74-A-5
Consumers' Association of Canada and Pollution
Probe at the University of Toronto (Applicants)
v.
The Hydro-Electric Power Commission of
Ontario, and The National Energy Board, and
Her Majesty the Queen in right of the Province of
Ontario (The Minister of Energy for Ontario)
(Respondents)
[No. 2]
Court of Appeal, Jackett C.J., Pratte and Heald
JJ.—Ottawa, March 19, 1974.
Practice—Application to set aside decision of National
Energy Board—Application for extension of time—Adjourn-
ment on same terms as application (No. 11 supra Federal
Court Act, s. 28.
Held, there was insufficient material before the Board to
support an application for extension of time. The Court
disposed of the application on the same ternis as the applica
tion for leave to appeal ([No. 1] supra) on the understanding
that if it was brought on for oral argument, it would be
brought on at the same time as the application for leave to
appeal.
Aly v. Minister of Manpower and Immigration [1971]
F.C. 540, considered.
APPLICATION.
COUNSEL:
No one appearing—written application
under Rule 324.
SOLICITORS:
Andrew J. Roman, Ottawa, for applicants.
Weir & Foulds, Toronto, for The Hydro
Electric Power Commission, respondent.
F. H. Lamar, Ottawa, for National Energy
Board, respondent.
Morris Manning, Toronto, for the Queen in
right of Ontario, respondent.
Deputy Attorney General of Canada for the
Queen in right of Canada.
JACKErr C.J.—This is an application on
behalf of "Consumers' Association of Canada,
and Pollution Probe at the University of Toron-
to" for an order extending the time for a section
28 application "to commence an appeal from
the decision of the National Energy Board dated
November 1973 to issue licence EL 76, and
communicated to the applicants on the 7th day
of January 1974". (In the context the words "to
commence an appeal from" must be regarded as
being in error for the words "to set aside".)
The only material filed in support of this
application is an affidavit the body of - which
reads as follows:
I, Michael J. Trebilcock, of the City of Toronto, Province
of Ontario, Professor of Law, University of Toronto, make
oath and say as follows:
1. I am the Chairman of the Core Committee on Advocacy
of the Consumers' Association of Canada and as such have
knowledge of the matters herein deposed.
2. Now shown to me and attached as Exhibit "A" to this
my Affidavit, is a Press Release of the National Energy
Board dated January 3, 1974.
3. The Press Release mentioned in paragraph 2, together
with the National Energy Board's Reasons for Decision,
entitled "National Energy Board Report to The Governor in
Council in the Matter of the Application under The National
Energy Board Act of the Hydro-Electric Power Commission
of Ontario", were sent to the intervenors in this matter, the
above-mentioned Applicants, by ordinary mail and arrived
on the 7th day of January 1974.
4. As Pollution Probe at the University of Toronto has no
legal counsel, and would rely on services rendered by coun
sel for the Consumers' Association of Canada, Pollution
Probe was required to wait to file an Originating Notice
under section 28 of the Federal Court Act, until the decision
had been made by the Consumers' Association of Canada to
commence an appeal.
5. Counsel for the Consumers' Association of Canada is not
authorized to commence an appeal in any proceeding with
out the approval of the Core Committee, of which I am the
Chairman.
6. The Core Committee comprises ten distinguished citizens
in all fields including Law, Economics, Civil Liberties and
Consumer Affairs, assisted by an Advisory Panel of another
12 members, resident across Canada. Having regard to the
time required to contact a sufficient number of the above-
mentioned individuals, it was not practicable to convoke a
meeting until Wednesday, January 30, 1974.
7. Accordingly, it was impossible in the circumstances to
instruct counsel to initiate an action under section 28 of the
Federal Court Act within ten days from the date the said
decision of the National Energy Board was communicated
to the Applicants.
8. This Affidavit is given in support of an application to the
Federal Court of Appeal for an extension of time within
which to file a section 28 Originating Notice in this matter.
Attached to that affidavit is an exhibit reading
as follows:
FOR IMMEDIATE RELEASE
NATIONAL ENERGY BOARD ISSUES POWER EXPORT LICENCE TO
THE HYDROELECTRIC POWER COMMISSION OF ONTARIO
GTTAWA - 3 January, 1974—The Honourable Donald S.
Macdonald, Minister of Energy, Mines and Resources,
announced today that the National Energy Board, with the
approval of the Governor in Council, has issued Licence
No. EL-76 to Ontario Hydro, eliminating the circulating
equichange clause in previous power export Licence No.
EL-33.
The new licence, which terminates on 31 December 1975,
removes a net export limit and allows the export of the full
licenced gross export of 8,250 gigawatthours per year, as
authorized under EL-33. Deliveries must be interrupted or
reduced at any time that the power is required to supply
firm loads in Canada. Almost all of the electricity to be
exported will be generated from imported coal.
In 1965, at the hearing prior to the issuance of EL-33, the
evidence indicated that 70 to 80 percent of the energy to be
exported was expected to be uncontrolled circulating equi-
change energy, flowing into the United States on some
transmission lines and returning simultaneously to Canada
on others. The Board therefore included in EL-33 a clause
requiring that the export be conditional upon the continuous
return to Canada of stated amounts of circulating equi-
change transfer. This requirement effectively limited the net
export of energy to 3,850 gigawatthours. In practice, the
amount of circulating equichange has proved to be substan
tially less than was forecast and the gross limit of 8,250
gigawatthours has never been reached.
At the public hearing held in Ottawa in October, 1973, a
joint intervention was filed by Pollution Probe and the
Consumers' Association of Canada. The intervenors' case
was, basically, that Ontario Hydro had not taken into
account the social costs of the increase in net export. An
estimate of these social costs was tabled. The Government
of Ontario intervened in support of the application.
The Board found that the intervenors' estimate of about
$8.5 million for social costs was not acceptable as a basis
for rejecting the export application because it was based
solely on questionable U.S. data and did not consider other
factors brought out by Ontario Hydro. The Presiding
Member stated that, in his judgment, from the evidence
adduced, the social costs were likely to be less than estimat
ed, and less than the profit expected by Ontario Hydro on
the export. The new licence will expire at the end of 1975
and Ontario Hydro may be expected to return to the Board
with a new application within two years. The Board recom
mends that all concerned use this interval to review fully,
the evaluation of social costs.
Section 28(1) gives to this Court jurisdiction
to set aside certain decisions and orders made
by federal boards, commissions and other tri
bunals upon any of the grounds therein defined.
Section 28(2) requires that a section 28 applica
tion be made by the Attorney General of
Canada "or any party directly affected by the
decision or order" within ten days of the time
the decision or order was first communicated to
him, which period may be extended.
An extension of the time for a section 28
application is not made unless there is some
material before the Court from which the Court
can satisfy itself, not only that there is some
justification for not bringing the application
within the 10 day period, but also
(a) that the order or decision that is the sub
ject matter of the proposed section 28
application is at least arguably within section
28, and
(b) that there is an arguable case for setting
aside the order or decision that is the subject
matter of the application on one of the
grounds envisaged by section 28.
The Court has consistently taken the position
that it does not extend the time for making a
section 28 application where the application, if
made in time, would be struck out under section
52(a) of the Federal Court Act.
There is no material before the Court in sup
port of this application on which the Court can
satisfy itself on either of these heads.
There is a concurrent application for leave to
appeal from the same decision under section 18
of the National Energy Board Act, in which
application the same applicants are being given
an opportunity to bring the matter on for oral
argument. If leave to appeal is granted on that
application, it may be that there should be an
extension of time for a section 28 application
based on the material filed in support of the
application for leave. Compare Aly v. Minister
of Manpower and Immigration.' I propose,
therefore, that this application be disposed of on
the same terms as the application for leave to
appeal and on the understanding that, if it be
brought on for oral argument, it be brought on
at the same time as the application for leave to
appeal.
* * *
PRATTE J.—I agree with the order proposed
by the Chief Justice.
* * *
HEALD J.—I also agree with the order pro
posed by the Chief Justice.
' [1971] F.C. 540.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.