81-A-321
Committee for Justice and Liberty Foundation,
Canadian Arctic Resources Committee, Dene
Nation, Metis Association of the Northwest Terri
tories (Applicants)
v.
Interprovincial Pipe Line (NW) Ltd., Alberta
Chamber of Resources, Amoco Canada Petroleum
Company Ltd., Chieftain Development Co. Ltd.,
City of Yellowknife, Esso Resources Canada Lim
ited, Foothills Pipe Line (Yukon) Ltd., Govern
ment of the Northwest Territories, Hay River
Area Economic Development Corp., Imperial Oil
Limited, Inuvik and District Chamber of Com
merce, Dene Tha' Band, NWT Grade Stamping
Agency, Rainbow Pipe Line Company Ltd., Town
of Inuvik and National Energy Board (Respond-
ents)
Court of Appeal, Thurlow C.J. and Heald and
Urie JJ.—Ottawa, June 27 and 30, 1981.
Energy — National Energy Board Act — Application for
leave to appeal decision of Board granting a certificate of
public convenience and necessity for construction of a pipeline
— Applicants alleging deficiency of evidence before the Board
in areas of concern to them — Whether there is a reasonably
arguable question of law or jurisdiction which the Court would
be entitled to consider — National Energy Board Act, R.S.C.
1970, c. N-6, ss. 18(1), 29, 35, 39, 46.
Applicants seek leave to appeal a decision of the National
Energy Board granting a certificate of public convenience and
necessity to Interprovincial Pipe Line (NW) Ltd. for the con
struction and operation of a pipeline. Applicants allege defi
ciency of evidence before the Board particularly in areas of
concern to them and submit that evidence curing the deficiency
was necessary before the Board could issue the certificate. The
question is whether there is a reasonably arguable question of
law or jurisdiction which the Court would be entitled to
consider.
Held, the application for leave to appeal is dismissed. This
Court is not entitled to substitute its opinion as to whether or,
not the facts before the Board justified a finding of public
convenience and necessity for the opinion of the Board. In a
situation of this kind, the determination of public convenience
and necessity is not a question of fact, but is, rather, the
formulation of an opinion by the Board, and by the Board only.
Furthermore, the conditions set out in the certificate relate
exclusively to the manner of the construction of the pipeline
and not as to whether the pipeline should be built. The majority
of the conditions are thus clearly within the continuing supervi
sory jurisdiction of the Board given to it under sections 29, 35
and 39 of the National Energy Board Act. Any of the condi
tions not specifically covered by those sections would be cov-
ered by the general power to impose conditions as set out in
section 46 of the Act.
Memorial Gardens Association (Canada) Ltd. v. Colwood
Cemetery Co. [1958] S.C.R. 353, referred to. Union Gas
Co. of Canada Ltd. v. Sydenham Gas and Petroleum Co.
Ltd. [1957] S.C.R. 185, referred to.
APPLICATION for leave to appeal.
COUNSEL:
P. Y. Atkinson for applicants.
J. B. Ballem, Q.C. for respondent Interprovin-
cial Pipe Line (NW) Ltd.
J. M. Robertson, Q.C. for respondents
Imperial Oil Limited and Esso Resources
Canada Limited.
F. Lamar, Q.C. and A. MacDonald for
respondent National Energy Board.
E. R. Sojonky for Attorney General of
Canada.
SOLICITORS:
Aird & Berlis, Toronto, for applicants.
Ballem, McDill & Maclnnes, Calgary, for
respondent Interprovincial Pipe Line (NW)
Ltd.
Fenerty, Robertson, Fraser & Hatch, Cal-
gary, for respondents Imperial Oil Limited
and Esso Resources Canada Limited.
F. Lamar, Q.C., Ottawa, for respondent Na
tional Energy Board.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
HEALD J.: The applicants herein assert as being
reasonably arguable an alleged error of law or
jurisdiction by the National Energy Board in
respect of a decision of the Board released on April
22, 1981, granting a certificate of public conve
nience and necessity to the respondent, Interpro-
vincial Pipe Line (NW) Ltd. (hereinafter I.P.L.),
to permit I.P.L. to construct and operate an oil
pipeline extending from Norman Wells, Northwest
Territories to Zama, Alberta. They accordingly
apply to this Court for leave to appeal pursuant to
section 18(1) of the National Energy Board Act,
R.S.C. 1970, c. N-6.
The principal thrust of the submissions of the
applicants is that at the public hearings conducted
by the Board, there was a notable deficiency of
evidence particularly with respect to environmen
tal and regional socio-economic matters; that the
Board recognized and commented on the deficien
cies in its reasons for judgment; that evidence
curing those deficiencies was fundamental and
necessary before the Board could be in a position
to make its decision to issue the certificate of
public convenience and necessity; and that because
of the fundamental, important and crucial nature
of this evidence, the applicants should have had
the right to test it by way of cross-examination at
the public hearings, thereafter reserving unto
themselves the right to reply thereto, if they con
sidered it necessary, by leading rebuttal evidence.
In their written memorandum, the applicants
stated:
A tribunal exercising a quasi-judicial jurisdiction must act on
the basis of evidence tendered at a hearing. It cannot base its
decision upon its assumptions as to the adequacy of evidence to
be subsequently filed;
The respondent, I.P.L., supported by the
respondent, Imperial Oil Limited, opposed the
application for leave to appeal. None of the other
respondents supported the application. Counsel
pointed out that the public hearings leading to the
Board's decision lasted for some twenty-one days,
some of those hearings lasting well into the night.
The applicants were represented at those hearings
and participated fully therein.
On page 168 of its reasons, the Board stated:
The Board has taken into account all matters that appear to it
to be relevant in considering the application for a certificate
and in reaching its decision in this matter. The Board is
satisfied that the pipeline facilities applied for by I.P.L. (NW)
are and will be required by the present and future public
convenience and necessity.
Thereafter, at pages 173 and 174 the Board
concluded:
Having regard to the foregoing considerations, findings, and
conclusions, and having taken into account all matters that
appear to it to be relevant, the Board, being satisfied that the
pipeline facilities applied for by Interprovincial Pipe Line
(NW) Ltd. are and will be required by the present and future
public convenience and necessity, is prepared to issue to IPL
(NW) a Certificate of Public Convenience and Necessity in
respect of the pipeline facilities which were the subject of this
application, upon the terms and conditions set out in Appendix
I, subject to the approval of the Governor in Council.
In my view, there was ample evidence before the
Board upon which it could make the findings of
fact and draw the conclusions which it did. This
Court is not entitled to substitute its opinion as to
whether or not those facts justified a finding of
public convenience and necessity for the opinion of
the Board'. In a situation of this kind, the determi
nation of public convenience and necessity is not a
question of fact, but is, rather, the formulation of
an opinion by the Board, and by the Board only 2 .
Accordingly, no question of law arises in respect of
which leave to appeal could be given in so far as
the Board's decision to grant the certificate is
concerned.
Turning now to the conditions of the certificate
as imposed by the Board (Appendix I, pages 1-8
inclusive), a perusal of those conditions satisfies
me that they relate exclusively to the details of the
manner of the construction of the pipeline and not
as to whether the pipeline should be built. The
majority of the conditions set out in Appendix I
seem to be clearly within the continuing superviso
ry jurisdiction of the Board given to it under
sections 29, 35 and 39 of the Act to regulate and
oversee pipelines in the public interest, having
regard, inter alia, to the particular concerns of the
applicants, i.e., socio-economic and environmental
matters. Any of the conditions not specifically
covered by those sections, would, in my view, be
covered by the general power to impose conditions
as set out in section 46 3 .
It should also be noted that the Board paid
particular attention to the concerns expressed by
the applicants at the oral hearings in so far as
these two areas are concerned. I refer to conditions
5, 7 and 8 in Appendix I. Those conditions require
I.P.L. within two months of the issue of the certifi
cate, to submit for Board approval, a schedule for
' See: Memorial Gardens Association (Canada) Ltd. v. Col-
wood Cemetery Co. [1958] S.C.R. 353 at p. 358, per Abbott J.
z See: Union Gas Company of Canada Limited v. Sydenham
Gas and Petroleum Company Limited [1957] S.C.R. 185 at p.
190, per Rand J.
3 46. (1) The Board may issue a certificate subject to such
terms and conditions as it considers necessary or desirable in
order to give effect to the purposes and provisions of this Act.
the filing of "those environmental and socio-eco
nomic studies, programs, practices, plans and
procedures it undertook to carry out or develop,
including those required by these terms and condi
tions ...". There is also a requirement for service
of those submissions on the intervenors, who may
submit to the Board representations in respect of
I.P.L.'s submissions. There is further provision for
revised submissions incorporating the intervenor's
suggestions with a provision that the Board can
either approve or refuse these submissions.
Accordingly, and for the above reasons, I have
concluded that all of the matters dealt with by the
Board by way of conditions were matters which
could properly be dealt with in that way; that they
were purely administrative matters not required to
be dealt with as a part of the quasi-judicial public
hearings; and that, in so dealing with these
administrative matters, any duty to act fairly
toward the applicants was undoubtedly discharged
by the provisions providing for input by the inter-
venors with respect to compliance with those con
ditions. The applicants have been given significant
and substantial participation in the environmental
and socio-economic areas of concern to them and
as a result, they have been dealt with fairly.
I am thus of the opinion that there is no reason
ably arguable question of law or jurisdiction which
the Court would be entitled to consider. I would,
therefore, dismiss the application for leave to
appeal.
* *
THURLOW C.J.: I agree.
* * *
URIE J.: I agree.
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.