Alberta ( Attorney General ) v. Westcoast Energy Inc.
A-558-96
Marceau J.A.
14/1/97
7 pp.
Motion to quash Reference-National Energy Board Act, s. 58 allowing Board to consider, grant application for construction of interprovincial pipeline less than 40 km in length without going through normal procedure leading to issuance of certificate of public convenience, necessity-Novagas Clearinghouse Pipeline applied for approval for construction of 16.5 km natural gas pipeline to transport gas across border between B.C., Alberta (Pesh Creek Pipeline)-Proposal included segregation, compression, metering centre in B.C. for natural gas collected in northwestern part of province and metering station in Alberta-Latter extension of gathering, transportation system in Alberta, including 86.3 km of pipeline-When Westcoast Energy Inc. questioning Board's jurisdiction under exceptional summary procedure on ground only part of pipeline longer than 40 km, Board deciding to refer question to F.C.A. concerning jurisdiction and to hold in abeyance s. 58 application-When Novagas requested review, Board refusing to review intention with respect to reference but granting s. 58 application after extensive hearing-When Westcoast sought leave to appeal that decision, Pesh Creek Pipeline, facilities in B.C., Alberta already built, operating-Board referring question to F.C.A. concerning Board's constitutional jurisdiction over B.C., Alberta facilities, combined length of which over 40 km-Application allowed-Reference not properly before Court-Exercise of Board's power to commence proprio motu proceeding under s. 12 must be formally instigated, notice thereof given to interested parties-Single application before Board for approval of 16.5 km pipeline fully considered, disposed of-Board not keeping proceeding alive by refusing to withdraw intention to refer question of jurisdiction over connecting facilities to F.C.A.-Board not entitled to partition project into multiple sections so as to consider some, all under s. 58-Not possible to leave aside for reference question of extent of facilities subject to its approval, and at same time consider, dispose of application before it, since determination of application requiring prior finding Pesh Creek Pipeline not part of unified pipeline chain-Court unequivocally rejecting possibility of tribunal filing under Federal Court Act, ss. 18.3, 28(2) reference having life of own i.e. answer to question posed having no immediate, direct effect in any proceeding below-Court not empowered to determine academic questions of law or to engage in speculation, role to determine as opposed merely to consider-National Energy Board Act, R.S.C., 1985, c. N-7, s. 58-Federal Court Act, R.S.C, 1985, c. F-7, ss. 18.3 (as enacted by S.C. 1990, c. 8, s. 5), 28(2) (as am. idem, s. 8).