Nesting dolls of “directly affected” in federal law under judicial review

October 18th, 2013 by Laura Bowman

Recently, the Federal Court of Appeal released a decision on a procedural issue in Forest Ethics Advocacy Association v. Canada (National Energy Board), 2013 FCA 236 (CanLII).  Forest Ethics is suing the government over recent changes to the National Energy Board Act which it claims “unreasonably restrict public comment on project proposals.” At issue is a new section introduced in one of the large conservative budget bills which limits participation on issues before the National Energy Board (NEB) to those who are “directly affected.”

In the decision, the Federal Court of Appeal had to decide whether Enbridge and Valero – two oil and gas companies – would have standing to become respondents or intervenors in the case against the government.  Ironically, the court had to interpret section 303 of the Federal Courts Act which also uses the “directly affected” test.

Current proceedings before the National Energy Board concern Enbridge’s application to the Board for approval to expand the capacity of the Line 9b pipeline, which runs through Toronto, and to reverse a segment of that pipeline so that it may transport bitumen from the Alberta oil sands. Forest Ethics sued the government after the NEB ruled that they and an individual, Donna Sinclair, were not “directly affected” pursuant to section 55.2 of the Act meaning that the NEB did not have to consider their representations in making a decision on the pipeline. In the judicial review, they sought a declaration that section 55.2 violates the Charter’s guarantee of freedom of expression and is thus invalid. They also sought an order which would set aside the Board’s decision to issue and require to be completed, a lengthy application to be considered as “directly affected.”  They also sought an injunction preventing the Board from acting until the judicial review has been decided.  Finally, they sought an order requiring the Board to accept all letters of comment from those wanting to participate in the proceedings.

In the procedural decision over whether to give Enbridge and Valero standing in the case, the court noted that there are “very few” authorities on the phrase “directly affected” in the FCA.  After reviewing a set of cases, the court held:

[23]           I accept that the relief sought in the judicial review, if granted, would cause real, tangible prejudice to Enbridge and Valero within the meaning of the Odynsky test, not just general inconvenience or general impact on their businesses as a result of detrimental or unhelpful jurisprudence. But Enbridge and Valero must go further under the Odynsky test and show that they will be prejudiced in a direct way.

[24]           In Enbridge’s case, the prejudice is direct. The Board’s proceeding is about whether Enbridge’s project should be approved. If the relief sought in the judicial review is granted, the proceedings before the Board will have to be rerun to some extent, delaying Enbridge’s project. Further, if the relief sought is granted, potentially many persons and organizations from different perspectives will have rights of participation where, before, they did not. The Board might accept some of the new participants’ arguments, leading to the rejection of Enbridge’s application for approval of its project. The risk of that happening directly affects Enbridge, the proponent of the project.

In contrast, the court noted Valero was in a commercial relationship with Enbridge but not itself a proponent of the project, on this basis the court granted respondent status to Enbridge but not to Valero.

It will be interesting to see if this foreshadows to some extent the issues in the judicial review.  To gain respondent status, Enbridge was in the position of arguing for a broad interpretation of the very words it will have to argue for a narrow interpretation of in the substantive hearing on the judicial review.   The only difference will be that the same words are found in a different piece of legislation. A truly odd situation.  In the decision on Enbridge’s standing the court interpreted “directly affected” to mean “real tangible prejudice” in a direct way.

It is interesting, and rather curious that the court felt that the potential addition of intervenors in the NEB process might cause tangible direct prejudice to the proponent of the project.  The so-called prejudice was direct because it “could” cause delay and the NEB “might” accept some of  the arguments of the intervenors leading to a rejection of its application.  This is a fairly low threshold for direct affect.  The addition of parties to the NEB proceeding would seem to have no direct bearing on the project or whether it is approved.  Looked at this way, the court is interpreting the “legal rights” qualification to “directly affected” rather expansively, as though Enbridge had a legal right to an expeditious approval process, free of pesky parties with a contrary position.  In contrast, any prejudice to the Friends of the Earth from delaying the judicial review by adding Enbridge as a party (something more directly impacting a clearer legal right) was not mentioned.

It will certainly be interesting to see whether this liberal approach to “directly affected” translates into a broader interpretation of who can make representations at NEB proceedings, or if the approach to standing under the Federal Courts Act will, as a result of this case be more liberal than the approach to standing at environmental regulatory proceedings.

Filed in: Energy and Resources, Environment

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