Obtaining Leave to Intervene in a Leave to Appeal Application

Cases Considered: Provident Energy Ltd. v. Alberta (Utilities Commission), 2008 ABCA 316

PDF Version:  Obtaining Leave to Intervene in a Leave to Appeal Application

This decision deals with a unique and interesting point of civil procedure. It answers the following question: what is the test for obtaining leave to intervene in a leave to appeal application before Alberta’s Court of Appeal?

The decision relates to three applications for leave to intervene in a leave to appeal application brought by Provident Energy Ltd. (Provident) with respect to a decision of the Alberta Utilities Commission. The applicants seeking leave to intervene were the Canadian Association of Petroleum Producers (CAPP), Syncrude Canada Ltd. (Syncrude) and Suncor Energy Marketing Inc. (Suncor) jointly, and Imperial Oil Resources (Imperial) and ExxonMobil Canada Energy (ExxonMobil) also jointly. The stakes must be pretty high to garner such interest at this preliminary stage in the proceedings.

In November 2007, Nova Gas Transmission Ltd. (NGTL) applied to the (now) Alberta Utilities Commission (AUC) for a permit to authorize the construction of natural gas pipeline segments and associated compressor stations as part of the NGTL Alberta System. An issue of jurisdiction arose and TransCanada Pipelines Ltd. subsequently applied to the federal National Energy Board (NEB) for approvals for the Alberta system on the basis that the Alberta System was within federal jurisdiction and thus regulated by the NEB. Provident then applied to the AUC for dismissal of NGTL’s application before the Commission arguing that the application was outside the Commission’s jurisdiction or, alternatively, that a stay should be granted pending the NEB’s determination of jurisdiction.

The AUC denied Provident’s application. It held that Alberta’s Pipeline Act, R.S.A. 2000, c. P-15, precluded it from determining the constitutional question and required it to continue to regulate NGTL until an NEB-issued certificate of public convenience and necessity was in force. It is with respect to this decision of the AUC that Provident has brought an application for leave to appeal to the Court of Appeal. In its application for leave, Provident submits that the AUC erred in concluding that it was not empowered to answer questions of law, and also on the question of whether it has jurisdiction over the Alberta System for purposes of NGTL’s application. Along with AUC, the Court of Appeal added NGTL as a respondent in Provident’s pending leave to appeal application.

Before a three-member panel of the Court (Justices Clifton O’Brien, Peter Martin and Patricia Rowbotham), the applicants seeking leave to intervene in Provident’s leave to appeal application submitted that they would be directly affected by any appeal decision should leave be granted. The applicants Imperial Oil and ExxonMobil are major producers and shippers of natural gas on the NGTL system. Syncrude and Suncor have oil sands projects dependent on the gas transmission system of NGTL, and CAPP represents 130 producers of natural gas and crude oil that are dependent on the NGTL pipeline system.

The Court’s decision begins by noting that the Court of Appeal does not have specific rules for such leave to intervene applications. Rather, the Court acknowledged that these applications are rare and that they are difficult to assess, especially because it is “difficult to know what interests may be affected and what contributions the applicants can make when it is unknown if leave to appeal will be granted and on what questions” (at para. 8). Looking to Supreme Court of Canada jurisprudence for guidance, the Court of Appeal concluded that leave to intervene prior to the granting of leave to appeal will rarely be granted, and only in “very exceptional circumstances” (at para. 8).

Applying this vague test of “very exceptional circumstances” to this case, the Court held that none of the applicants were able to show exceptional circumstances in support of their proposed intervention in the leave application. In particular, the Court was not satisfied that the applicants had demonstrated any special expertise or that “they would provide a unique or different perspective in the leave application from that of the respondents, namely, the Commission and NGTL” (at para. 9). In short, the Court was not satisfied that any of these applicants would have anything to add on the leave application. Thus, the leave to intervene applications were dismissed. The Court did note, however, that should leave to appeal be granted on the Provident application, the applicants would be free to bring an application for leave to intervene in the appeal at that time.

Clearly, this decision tells us that the test for obtaining leave to intervene in a leave to appeal application is an onerous one. Only where “very exceptional circumstances” exist with respect to the expertise or perspective that the applicant would bring to the leave application will leave to intervene be granted. In practice, these are rare applications; the test enunciated by the Court means that successful applications will be even rarer.

3 thoughts on “Obtaining Leave to Intervene in a Leave to Appeal Application

  1. Gary Perkins

    I was involved in the NGTL hearing as AUC counsel and appreciate your comments on the test for granting intervener status at the leave stage. One point of correction, the jurisdictional issue arose after and as a direct result of TCPL filing its application at the NEB. Provident and others argued that TCPL’s assertion in its NEB application that the NOVA system was a federal undertaking should have been sufficient proof of the matter for the AUC to decide it did not have jurisdiction to approve the NOVA application.

    BTW- the leave application was heard October 14, and a decision is expected the week of October 20.

  2. Nickie Vlavianos

    UPDATE ON DECISION:

    Hi Steve,

    Leave to appeal was ultimately not granted in this case. In October 2008, Justice P. Martin dismissed the application on the basis that it did not raise a meritorious argument because “the evidentiary record [was] lacking and because another tribunal [i.e., the National Energy Board] will be deciding the same question on better information.” See Provident Energy Ltd. v. Alberta Utilities Commission and Nova Gas Transmission Ltd., 2008 ABCA 362.

    Subsequently, the National Energy Board issued its decision on the constitutional question in February 2009. It concluded that Nova’s Alberta System fell within federal jurisdiction and properly subject to NEB authority. See Nigel Bankes’ post entitled “TransCanada’s Alberta Pipeline System now under federal regulatory authority” at https://ablawg.ca/2009/03/23/transcanada%E2%80%99s-alberta-pipeline-system-now-under-federal-regulatory-authority/

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