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Judicial Supervision of the National Energy Board (NEB): The Federal Court of Appeal Defers to the NEB on Key Decisions

On November 11, 2014

By: Nigel Bankes

PDF Version: Judicial Supervision of the National Energy Board (NEB): The Federal Court of Appeal Defers to the NEB on Key Decisions

Cases Commented On: Forest Ethics Advocacy Association and Donna Sinclair v National Energy Board, 2014 FCA 245; City of Vancouver v National Energy Board, and TransMountain Pipeline ULC, Order of the Federal Court of Appeal, Docket 14-A-55, per Justice Marc Nadon, October 16, 2014, denying leave to appeal the NEB’s scoping decision, Hearing Order OH-001-2014, 23 July 2014.

The National Energy Board (NEB) has its plate full; so too does the Federal Court of Appeal which has been hearing both judicial review applications and leave to appeal applications in relation to a number of projects including the Northern Gateway Project (Enbridge), the Line B Reversal and Line 9 Capacity Expansion Project (Enbridge), and the TransMountain expansion Project (Kinder Morgan). Interested readers can obtain details of these projects as well as Board decisions on the NEB’s website. I provided an assessment of the state of play in the Northern Gateway applications in a comment published in the Energy Regulation Quarterly.

The term “judicial supervision” in this post is designed to encompass both the idea of judicial review and appellate review of NEB decisions by way of appeal to the Federal Court of Appeal (FCA) (with leave). The normal route for obtaining judicial supervision of the NEB is by way of appeal (with leave) but one of the most significant recent decisions we have seen in this area, the Forest Ethics and Sinclair case, came before the Court on an application for judicial review. The case is important because it establishes, at least in the circumstances of that case, that the Board did not err in ruling that it did not have to consider the larger environmental effects of a pipeline project including the contribution to climate change made by the Alberta oil sands and facilities and activities upstream and downstream from the pipeline project.

This post aims to do three things. First it explains the different ways in which a party may seek judicial supervision of an NEB decision. Second, it examines the Forest Ethics and Sinclair decision and finally it offers some brief commentary on one important practical and philosophical difference between the way in which the Federal Court of Appeal treats leave applications and the way in which it treats judicial review applications – reasons.

Gross Negligence and Set-off Rights under the 2007 CAPL Operating Procedure

By Nigel Bankes

On November 7, 2014

In Oil & Gas

By: Nigel Bankes

PDF Version: Gross Negligence and Set-off Rights under the 2007 CAPL Operating Procedure

Case Commented On: Bernum Petroleum Ltd v Birch Lake Energy Inc., 2014 ABQB 652; unreported transcript of reasons of Master Robertson, July 31, 2013

Bernum and Birch Lake held interests (60:40) in five sections of land (sections 3, 7, 8, 17 and 19) governed by the 2007 version of the CAPL operating procedure. Bernum was the operator. Birch Lake elected to participate in drilling two horizontal wells, the 4-3 well and the 6-19 well. The 4-3 well was a success and is still producing. The 6-19 failed and was subsequently abandoned. Birch Lake failed to meet cash calls under the authorizations for expenditure (AFEs) for the two wells; Bernum commenced an action and applied for summary judgement. Bernum also set off Birch Lake’s share of production against Birch Lake’s indebtedness.

Birch Lake defended Bernum’s application for summary judgement on the basis that Bernum had been grossly negligent in drilling the two wells. The 2007 CAPL provides that:

4.02 The Operator … will not be liable to any of the Non-Operators for any Losses and Liabilities resulting from or in any way attributable to or arising out of any act, omission or failure to act, whether negligent or otherwise, of the Operator or its Affiliates and their respective directors, officers, agents, contractors or employees in the performance of the Operator’s duties under this Agreement (including those in planning or conducting any Joint Operation), except insofar as:

(a) those Losses and Liabilities are a direct result of, or are directly attributable to the Gross Negligence or Wilful Misconduct of the Operator …;

The Virtues and Limits of the Representation of the “Man-in-trouble”: Some Reflections on Jian Ghomeshi and Legal Ethics

By Alice Woolley

On November 3, 2014

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: The Virtues and Limits of the Representation of the “Man-in-trouble”: Some Reflections on Jian Ghomeshi and Legal Ethics

The scandal surrounding Jian Ghomeshi raises a myriad of legal questions across doctrinal areas: labour and employment; the jurisdiction of the court; criminal law; and legal ethics. Last week on ABlawg Joshua Sealy-Harrington wrote a post commenting on two of the criminal law questions – what is (and is not) relevant to assessing a sexual assault case, and how the presumption of innocence can co-exist with the empowerment of sexual assault victims (Jiango Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal).

Here I want to explore the legal ethics issues. My analysis will be necessarily tentative; we do not yet have sufficient information to characterize accurately the ethical issues that the situation presents. But even that tentative assessment provides an opportunity to reflect on the role of the lawyer representing a client in trouble, on the moral significance and importance of that representation, but also the challenges that can arise in identifying its limits.

Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

By Joshua Sealy-Harrington

On October 31, 2014

In Criminal

By: Joshua Sealy-Harrington

PDF Version: Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

The recent scandal surrounding Jian Ghomeshi’s dismissal from the CBC, and the sexual assault allegations relating to that dismissal, have had a polarizing impact on Canadian discussion about sexual assault. First, this comment outlines the legal framework surrounding the sexual assault allegations against Mr. Ghomeshi to clarify what is relevant to the adjudication of those allegations, and what is not. Second, this comment seeks to respond to the polarizing conversation on this issue and argue for a middle ground which preserves the presumption of innocence while simultaneously demanding greater support for the victims of sexual assault.

Background

On October 26, 2014, the CBC announced that its relationship with Jian Ghomeshi – host of the popular radio show “Q” – had come to an end.

The factual background underlying this controversy (AKA World War Q, AKA Ghomeshigate) is heavily contested. Mr. Ghomeshi, in a note posted on Facebook, claims to be the victim of “a campaign of false allegations pursued by a jilted ex girlfriend and freelance writer.” Shortly thereafter, an article in the Toronto Star reported that three anonymous women say that Mr. Ghomeshi “was physically violent to them without their consent during sexual encounters or in the lead-up to sexual encounters.” Moreover, following the Toronto Star piece, many other women echoed these allegations, including actress Lucy DeCoutere, who has agreed to be identified.

In the aftermath of his dismissal, Mr. Ghomeshi filed a $55 million law suit against the CBC for breach of confidence and defamation (though, some have argued that the law suit serves ulterior motives). To date, no formal complaint or police investigation relating to the allegations against Mr. Ghomeshi has taken place.

The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands

By Nigel Bankes

On October 28, 2014

In Aboriginal, Constitutional

By: Nigel Bankes and Jennifer Koshan

PDF Version: The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands

Case Commented On: Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 262, application for leave to appeal dismissed with costs, October 23, 2014

The Supreme Court of Canada has passed up the opportunity to clarify the application of the doctrine of interjurisdictional immunity (IJI) to reserve lands following its decisions in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (Keewatin) in June 2014 by denying leave to appeal in the Sechelt Indian Band case. It is unusual to comment on a decision to deny leave since such decisions are never supported by reasons and the Court has warned that we cannot infer much about the status of an appellate decision on which leave was denied for the very good reason that there may be all sorts of considerations that might lead the Court to deny leave in any particular case. We are commenting on the leave issue in this case because in our view by missing the opportunity to clarify the scope of Tsilhqot’in and Keewatin the Court has left outstanding uncertainty as to the scope of these decisions that it could usefully have resolved. We also include a postscript referring to a recent decision out of Saskatchewan that seems to extend Tsilhqot’in to render IJI inapplicable to provincial limitations legislation applying to reserve lands.