Court of Appeal Decision of the Week
The Test for “Permission to Appeal”
Case: Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40 (CanLII)
Keywords: Pipeline, Energy Regulator, Permission to Appeal; s. 45(1) of the Responsible Energy Development Act, SA 2012, c. R-17.3
The Alberta Energy Regulator holds a 13-day hearing involving 41 witnesses and documentary evidence to consider the approval of two pipelines from Fox Creek to Namao. The Applicants, who do not oppose the pipelines per se, raise a number of questions and concerns about pipelines and their construction; counsel provide a list of site-specific concerns and ask Pembina Pipeline Corporation, the Respondent, to respond. Pembina produces an updated spreadsheet during oral argument which contains a list of “commitments” and outlining the positive steps it is prepared to take with respect to the Applicants’ site-specific concerns. Counsel objects to the timing of Pembina’s disclosure of the list.
The Regulator renders a 95-page, 482-paragraph decision approving construction of the two pipelines subject to some “conditions” but declines to include the list of commitments, stating site-specific concerns should be dealt with via individual agreements between Pembina and the affected landowners. The public interest did not require that Pembina’s commitments be made into conditions to pipeline approval.
The Applicants seek permission to appeal the approvals under s. 45(1) of the Responsible Energy Development Act, SA 2012, c. R-17.3 asserting the following errors in the panel’s decision:
- Failing to exercise delegated authority when granting the licence and approval to Pembina and/or approving an “incomplete Application”;
- Making a decision which creates uncertainty in its application and effect;
- Breaches of procedural fairness at the hearing and the resulting unfair effect. (See para. 9).
The Court of Appeal (a single judge) did not grant the permission to appeal; finds the Applicants “have not identified a pure question of law on which permission to appeal should be granted.” (See para. 33).
The Court of Appeal confirmed that, under s. 45(1) of the Responsible Energy Development Act, an appeal from a decision of the Alberta Energy Regulator is only permitted on questions of law or jurisdiction. (See para. 2). Citing Berger v Alberta (Energy Resources Conservation Board), 2009 ABCA 158 (CanLII) at para. 2, and Wood Buffalo (Regional Municipality) v Alberta (Energy and Utilities Board), 2007 ABCA 192 (CanLII) at para. 5, the Court of Appeal stated that, in determining whether to grant permission, a court will consider the following issues:
- Is the issue of general importance?
- Is the point raised of significance to the decision itself?
- Does the appeal have arguable merit?
- What standard of review is likely to be applied?
- Will the appeal unduly hinder the progress of the proceedings?
The Court of Appeal determined that, since an appeal from a decision of the Regulator can only be taken on a question of law, the task of the Court is not to revisit the question which was before the Regulator itself. That is to say, the Court of Appeal is not required to determine whether or not the specific pipelines in question were in the “public interest”. (See para. 3).
Furthermore, the Court was not required to determine whether any particular commitments should or should not form part of the Regulator’s decision in the form of “conditions” to approval:
The applicants are obviously dissatisfied with the process involved in approving these pipelines, and the outcome of that process, but they have not been able to demonstrate that any of their dissatisfaction results from an error of law by the Regulator. The panel of the Regulator may have been optimistic or unrealistic in its expectations of Pembina, particularly its willingness to enter into agreements with the owners. However, whether something should be a binding “condition” of a pipeline licence, or merely a softer “commitment”, will rarely be a pure question of law. An application for permission to appeal is not a determination of the merits, but permission to appeal should not be given unless there is some viable argument to be made on each issue. (See para. 33).
Counsel for the Applicants: Debbie Bishop and Eva Chipuik (Prowse Chowne LLP, Edmonton)
Counsel for the Respondent Pembina Pipeline Corporation: David Tupper and Geoff Adair (Blake, Cassels & Graydon LLP, Calgary)
Counsel for Respondent Alberta Energy Regulator: Robert Mueller and Ashley Garbe (Alberta Energy Regulator)
Posted: Tuesday, February 07, 2017