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Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act

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On February 18, 2011

In Administrative Law, Costs, Oil & Gas, Supreme Court of Canada

PDF version: Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act 

Case considered: Smith v Alliance Pipeline Ltd., 2011 SCC 7

In Smith v Alliance Pipeline Ltd., 2011 SCC 7 (Smith) all nine judges of the Supreme Court of Canada endorsed a broad view of the power of the federal Pipeline Arbitration Committee (PAC) established under the National Energy Board Act, RSC 1985 c N-7 (NEBA) to award costs to a claimant to an arbitration proceeding. Committee costs may include solicitor-client costs of related litigation. The Court grounded its finding in subsection 99(1) of the NEBA, which if triggered requires a company to pay “all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person’s claim for compensation,” and in the history of statutory reform of the law of expropriation, specifically the principle of full compensation for expropriation. The Court was silent on the Federal Court of Appeal finding that matters for which a committee may award compensation are restricted by section 84 of the NEBA, under which litigation costs are not compensable (Alliance Pipeline Ltd. v Smith, 2009 FCA 110 at para. 55 (Smith FCA)). The impact of Smith may be limited to cases in which compensation awarded by the committee exceeds 85 percent of the value offered by the company, as the statutory basis for the Court’s decision is subsection 99(1), and the subsection is triggered only where the 85 percent threshold is exceeded.

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Supreme Court hears Alberta Privacy Case

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On February 17, 2011

In Administrative Law, Privacy, Supreme Court of Canada

Case considered: Information and Privacy Commissioner v. Alberta Teachers’ Association, an appeal from 2010 ABCA 26

Yesterday the Supreme Court of Canada heard the appeal in Information and Privacy Commissioner v. Alberta Teachers’ Association, an appeal from 2010 ABCA 26. For a comment on the Court of Appeal decision, see Court of Appeal Decision on Privacy Process Likely to Have Significant Impact on Office of Information and Privacy Commissioner. Here is a summary of the case from the SCC’s website: “Ten individuals complained to the Office of the appellant Information and Privacy Commissioner that the respondent Alberta Teachers’ Association disclosed, in contravention of the Personal Information Protection Act, S.A. 2003, c. P 6.5, their personal information by publishing their names and other information about them in a publication called the “ATA News”. The adjudicator found that the Association had disclosed the complainants’ personal information contrary to ss. 7 and 19 of the Act. On judicial review, the adjudicator’s decision was quashed on the basis that the Commissioner lost jurisdiction for failing to comply with the time lines set out in s. 50(5) of the Act. The Court of Appeal, in a majority decision, upheld that decision.” The issues raised in the case include: Whether it is appropriate for a court, on judicial review, to review a matter that has not been decided by the tribunal at first instance? What consequences ought to flow when a tribunal breaches a statutorily imposed time line?

Interim Costs and Access to Justice at the Supreme Court of Canada

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On February 16, 2011

In Access to Justice, Constitutional, Costs, Supreme Court of Canada

PDF version: Interim Costs and Access to Justice at the Supreme Court of Canada 

Case considered: R. v. Caron, 2011 SCC 5

The Supreme Court recently upheld the Alberta Court of Appeal decision in R. v. Caron, 2009 ABCA 34. That decision affirmed the jurisdiction of a superior court to award interim costs for public interest litigation before the provincial court, and found that Caron’s language rights challenge was an appropriate one in which to order interim costs pursuant to the test in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (Okanagan). The Supreme Court’s decision was unanimous (with a majority judgment by Justice Ian Binnie and a concurring judgment by Justice Rosalie Abella), and was welcomed by groups such as the Canadian Civil Liberties Association (CCLA). The CCLA had intervened in the case along with a number of other public interest groups, indicating some anxiety that entitlement to interim costs awards as originally set out in Okanagan may be further restricted by the Supreme Court, a restriction it commenced in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38 (Little Sisters (No.2)).

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The continuing mystery of standing at the Energy Resources Conservation Board

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On February 14, 2011

In Administrative Law, Environmental, Intervenors and Standing

PDF version: The continuing mystery of standing at the Energy Resources Conservation Board 

Case considered: West Energy/Daylight Energy – Section 39 review hearing re: Linda McGinn, 2011 ABERCB 002

A couple weeks ago on ABlawg I suggested that the law governing standing to contest an energy project in front of the Energy Resources Conservation Board (ERCB) is becoming unglued (see The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4).The first change came out of the Court of Appeal’s October 2009 decision in Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349, (and see The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution). The Court of Appeal has subsequently granted two leave applications made by Susan Kelly that concern the interpretation of sections 26 and 28 of the Energy Resources Conservation Act (ERCA), R.S.A. 2000, c. E-10. These additional appeals have yet to be heard, but I am certain the Court’s ruling in both matters will result in further changes to the law concerning who must be heard at the ERCB. The ERCB’s recent standing ruling in West Energy/Daylight Energy Section 39 Review Decision, 2011 ABERCB 002 suggests to me that the Board has lost its way on how to apply section 26(2) of the ERCA.

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ALSA and the property rights debate in Alberta: a certificate of title to land is not a “statutory consent”

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On February 11, 2011

In Environmental, Property, Protection of Spaces

PDF version: ALSA and the property rights debate in Alberta: a certificate of title to land is not a “statutory consent” 

Statute commented on: Alberta Land Stewardship Act, SA 2009, c.A-26.8

There is significant public debate in Alberta about a series of measures introduced and passed by the provincial government over the last 18 months. These measures include: (1) the Land Assembly Project Area Act (sometimes known as Bill 19, now SA 2009, c. L-2.5, yet to be proclaimed), (2) the Electric Statutes Amendment Act, SA 2009, c.44 (Bill 50), (3) the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA), and (4) Bill 24, the Carbon Capture and Storage Statutes Amendment Act (Alberta), SA 2010, c.14. I won’t deal with all aspects of the debate but I do want to comment on one aspect of the debate as it relates to ALSA.

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