Reference Re National Energy Board Act, (1987) 81 N.R. 241 (FCA)

• Judge: Mahoney, Stone and MacGuigan, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 27, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 81 N.R. 241 (FCA)

Ref. Re Nat. Energy Bd. Act (1987), 81 N.R. 241 (FCA)

MLB headnote and full text

IN THE MATTER OF the National Energy Board Act; AND IN THE MATTER OF a Reference by the National Energy Board pursuant to section 28(4) of the Federal Court Act

(A-472-87)

Indexed As: Reference Re National Energy Board Act

Federal Court of Appeal

Mahoney, Stone and MacGuigan, JJ.

November 27, 1987.

Summary:

The federal government instituted a new policy permitting Ontario natural gas consumers to purchase gas directly from Alberta producers instead of from local distributing companies in Ontario. Accordingly, Cyanamid Canada proposed to build a short pipeline from the interprovincial pipeline from the west to its plant to bypass the pipeline of the local distributing company. The National Energy Board ruled that it had jurisdiction over the bypass line, but the Ontario Energy Board ruled that it had jurisdiction over the line. The Ontario Divisional Court agreed that the line fell within provincial jurisdiction. See 22 O.A.C. 142. Cyanamid Canada therefore applied to the National Energy Board under s. 17(1) of the National Energy Board Act for a review of its previous order with a view to the Board referring the matter to the Federal Court of Appeal under s. 28(4) of the Federal Court Act, which was done.

The Federal Court of Appeal held that the bypass line fell under provincial jurisdiction and was not an interprovincial work or undertaking under s. 92(10)(a) of the Constitution Act, 1867, because it was not necessary to the operation of the interprovincial pipeline, but was unnecessary and redundant to it.

Administrative Law - Topic 566

Hearing and decision - Decisions of tribunal - Variation - The National Energy Board made a ruling which subsequently appeared questionable in light of an Ontario Divisional Court ruling - One of the parties applied under s. 17(1) of the National Energy Board Act for review of the National Energy Board's order with a view to the Board referring the question to the Federal Court of Appeal under s. 28(4) of the Federal Court Act - The Board allowed the application and made the reference on the ground that the Ontario Divisional Court ruling was a new circumstance justifying it reviewing its order - The Federal Court of Appeal held that the Board acted properly under s. 17(1) and the reference to the Federal Court of Appeal was therefore in order - See paragraphs 10 to 15.

Administrative Law - Topic 9057

Boards and tribunals - Jurisdiction of particular boards and tribunals - National Energy Board - Reviewing its own decisions - [See Administrative Law - Topic 566 above].

Constitutional Law - Topic 6641

Federal jurisdiction - Interprovincial works and undertakings - General - Work and undertaking distinguished - The Federal Court of Appeal held that for purposes of s. 92(10)(a) of the Constitution Act, 1867, a "work" is a physical thing, while an "undertaking" is an arrangement under which the physical things are used - See paragraph 33.

Constitutional Law - Topic 6641

Federal jurisdiction - Interprovincial works and undertakings - General - The Federal Court of Appeal held that for a work or undertaking to fall within federal jurisdiction it must be an interprovincial work or undertaking or be joined to one through a necessary nexus - The court applied the test that the work or undertaking must be vital, essential or integral to the interprovincial undertaking to fall within federal jurisdiction - See paragraph 27.

Constitutional Law - Topic 6641

Federal jurisdiction - Interprovincial works or undertakings - General - Interpretation - Ejusdem generis rule - [See Statutes - Topic 2584 below].

Constitutional Law - Topic 6643

Federal jurisdiction - Interprovincial works and undertakings - Pipelines - Natural gas bypass facility - Recent federal government policy permitted Ontario natural gas consumers to purchase natural gas directly from Alberta producers instead of from local distributing companies in Ontario - Accordingly, a consumer proposed to build a short pipeline from the interprovincial pipeline from the west to its plant to bypass the pipeline of the local distributing company - The Federal Court of Appeal held that the bypass line fell within provincial jurisdiction and was not an interprovincial work or undertaking under s. 92(10)(a) of the Constitution Act, 1867, because it was not necessary to the operation of the interprovincial pipeline, but was unnecessary and redundant to it.

Constitutional Law - Topic 7083

Provincial jurisdiction - Local works and undertakings - Pipelines - Natural gas bypass facility - [See Constitutional Law - Topic 6643 above].

Practice - Topic 3791

References - Reference by tribunal to court of appeal - General - [See Administrative Law - Topic 566 above].

Statutes - Topic 2584

Interpretation - Words and phrases - Ejusdem generis rule - When rule applicable - General words following particular words - The Constitution Act, 1867, s. 92(10)(a), placed within federal jurisdiction "lines of steam or other ships, railways, canals, telegraphs and other works and undertakings" running between provinces - The Federal Court of Appeal held that the words "other works and undertakings" should be read ejusdem generis with the preceding words respecting transportation and communications - See paragraph 38.

Cases Noticed:

Ontario Energy Board v. Consumers' Gas Co. et al. (1987), 22 O.A.C. 142, folld. Reference re Public Service Staff Relations Act, [1973] F.C. 604, appld. Martin Service Station Ltd. v. Minister of National Revenue, [1974] F.C. 398, appld. [para. 11].

Luscar Collieries Ltd. v. McDonald, [1927] A.C. 925, dist. [paras. 18, 25, 26].

Attorney-General for Ontario v. Winner, [1954] A.C. 541, dist. [paras. 18, 29, 32].

Capital Cities Communication et al. v. C.R.T.C. et al., [1978] 2 S.C.R. 141; 18 N.R. 181; 81 D.L.R.(3d) 609, dist. [paras. 18, 22-24].

Public Service Board v. Dionne, [1978] 2 S.C.R. 191; 18 N.R. 271, dist. [paras. 18, 22-24].

CNCP Telecommunications v. Alberta Government Telephones and C.R.T.C., [1985] 2 F.C. 472; 17 Admin. L.R. 149 (F.C.T.D.), [1986] 2 F.C. 179; 63 N.R. 374; 17 Admin. L.R. 190 (F.C.A.), consd. [para. 18].

British Columbia Electric Railway Company Limited et al. v. Canadian National Railway Company et al., [1932] S.C.R. 161, consd. [para. 25].

Dome Petroleum Ltd. v. National Energy Board (1987), 73 N.R. 135, refd to. [para. 26].

Reference re Validity of the Industrial Relations and Disputes Investigation Act, R.S.C. 1952, c. 152, [1955] S.C.R. 529, consd. [para. 27].

Stevedoring Reference - see Reference re Validity of the Industrial Relations and Disputes Investigation Act. Canadian Union of Postal Workers et al., [1975] 1 S.C.R. 178, consd. [para. 27].

Re Cannet Freight Cartage Ltd. and Teamsters Local 419 (1975), 11 N.R. 606; 60 D.L.R.(3d) 473 (F.C.A.), consd. [paras. 27, 37].

Nor-Min Supplies Limited v. Canadian National Railway, [1977] 1 S.C.R. 322; 7 N.R. 603, consd. [para. 27].

Montcalm Construction Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; 25 N.R. 1, consd. [para. 27].

Northern Telecom Ltd. v. Communications Workers of Canada et al. (#1), [1980] 1 S.C.R. 115; 28 N.R. 107, consd. [para. 27].

Northern Telecom Ltd. v. Communications Workers of Canada et al. (#2), [1983] 1 S.C.R. 733; 48 N.R. 161, consd. [para. 27].

Corporation of the City of Toronto v. Bell Telephone Company of Canada, [1905] A.C. 52, refd to. [para. 31].

City of Montreal v. Montreal Street Railway, [1912] A.C. 333, appld. [para. 34].

Re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304, appld. [para. 34].

Re R. and Cottrell Forwarding Co. Ltd. (1981), 33 O.R.(2d) 486; 124 D.L.R.(3d) 674, consd. [para. 37].

Statutes Noticed:

Constitution Act, 1867, sect. 91(29), sect. 92(10)(a) [para. 16].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 28(4) [para. 11].

National Energy Board Act, R.S.C. 1970, c. N-6, sect. 17(1) [para. 12].

Rules of Practice and Procedure of National Energy Board, sect. 41 [para. 13].

Authors and Works Noticed:

Hogg, Constitutional Law of Canada (2nd Ed.), pp. 486 [para. 38]; 501 [para. 24].

Counsel:

M. Souder and S.K. Fraser, for the National Energy Board;

C. Kemm Yates and D.E. Crowther, for Cyanamid Canada Pipeline Inc.;

Barbara McIssac, for the Attorney General of Canada;

Michael M. Peterson and P. Tumley, for C.I.L. Inc.;

Martin Sclisizzi and E.M. Roher, for Suncor Inc.;

D.O. Sabey, Q.C., for Simplot Chemical Company Ltd.;

R. Van Banning, for Nitrochem Inc.;

J.H. Farrell and M.S.F. Watson, for Consumers Gas;

B.H. Kellock, Q.C., for Union Gas;

D. Morritt, for I.C.G. Utilities;

B. Wright and M. Helie, for the Attorney General of Ontario;

Barbara C. Howell, for the Attorney General of Alberta;

No one appearing for the Attorney General of British Columbia;

N.D. Shende, Q.C., for the Attorney General of Manitoba;

No one appearing for the Attorney General for Saskatchewan;

Louis Crete and Ann M. Bigne, for Gaz Metropolitan;

John Hopwood, Q.C., for Novacorp;

D.M. Masuhara, for Inland Natural Gas;

S.T. Goudge, Q.C., for Ontario Energy.

Solicitors of Record:

Legal Services,National Energy Board, Ottawa, Ontario, for National Energy Board;

Fenerty, Robertson, Fraser & Hatch, Calgary, Alberta, for Cyanamid Canada Pipeline Inc.;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, for the Attorney General of Canada;

Tilley, Carson & Findlay, Toronto, Ontario, for C.I.L. Inc.;

Tilley, Carson & Findlay, Toronto, Ontario, for Suncor Inc.;

Bennett, Jones, Calgary, Alberta, for Simplot Chemical Company Ltd.;

Tory, Tory, DesLauriers & Binnington, Toronto, Ontario, for Nitrochem Inc.;

Smith, Lyons, Torrance, Stevenson & Mayer, Toronto, Ontario, for Consumers Gas;

Blake, Cassels & Graydon, Toronto, Ontario, for Union Gas;

Osler, Hoskin & Harcourt, Toronto, Ontario, for I.C.G. Utilities;

Ministry of the Attorney General, Toronto, Ontario, for the Attorney General of Ontario;

Field & Field, Edmonton, Alberta, for the Attorney General of Alberta;

Ministry of the Attorney General, Legal Services Branch, Victoria, B.C., for the Attorney General of British Columbia;

Legal Services, Winnipeg, Manitoba, for the Attorney General of Manitoba;

Legal Services, Regina, Saskatchewan, for the Attorney General of Saskatchewan;

Clarkson, Tetrault, Montreal, Quebec, for Gaz Metropolitan;

Howard, Mackie, Calgary, Alberta, for Novacorp;

Legal Services, Inland Natural Gas, Vancouver, B.C., for Inland Natural Gas;

Gowling & Henderson, Toronto, Ontario, for Ontario Energy Board.

This case was heard on November 4-6, 1987, at Toronto, Ontario, before Mahoney, Stone and MacGuigan, JJ., of the Federal Court of Appeal.

On November 27, 1987, MacGuigan, J., delivered the following judgment for the Federal Court of Appeal: