Rocky Mountain Ecosystem Coalition v. Canada ( National Energy Board )
T-8-99 / T-9-99
Hargrave P.
3/8/99
22 pp.
Motions to strike out two applications for judicial review filed by Rocky Mountain Ecosystem Coalition (Rocky Mountain) in respect of Alliance Pipeline System Project (Project) (substantial Canada-US project involving construction of more than 13 000 km of natural gas pipeline, at cost of $3.7 billion, capable of delivering 37.5 million cubic metres of natural gas per day)-First application seeking order to set aside or quash National Energy Board (NEB) decision of 26/11/98 in respect of Project on ground NEB made use of information provided by Department of Fisheries and Oceans (DFO) and Prairie Farm Rehabilitation Administration (PFRA), which entities allegedly had not participated in public hearing in respect of Project-Second application seeking mandamus compelling DFO and PFRA to conduct panel review of Project on ground had not fulfilled alleged duties and functions as responsible authorities under Canadian Environmental Assessment Act (CEAA), s. 12(3), (4) (to provide any relevant and important information to review panel conducting environmental assessment of project) and on ground DFO and PFRA, as responsible authorities, should have been involved as such in holding pipeline hearing-DFO and PFRA not necessarily responsible authorities, but may be federal authorities with information useful to responsible authority, NEB-Grounds of motion to strike first application: (1) F.C.T.D. has no jurisdiction to entertain matter; (2) by virtue of Federal Court Act, s. 18.5 and NEB Act, s. 22, applicant Rocky Mountain employing improper procedure for review of NEB decision; (3) in alternative, if NEB decision reviewable, only F.C.A. has jurisdiction to hear application-First application outside jurisdiction of F.C.T.D., but might be salvaged by further motion, to judge, to have first application sent to F.C.A. under Federal Court Rules, 1998, r. 49 and second application, seeking mandamus, remedy which Court cannot give herein, struck without alternative-Court always reluctant to strike out originating application as judicial review already expeditious process-However, applications struck where so clearly improper as to be bereft of any possibility of success: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.)-Federal Court Act, s. 28(3) expressly providing Trial Division deprived of jurisdiction in respect of judicial review against federal boards and tribunals over which FCA entertains jurisdiction (inter alia, NEB: Federal Court Act, s. 28(1)(f))-First application therefore bereft of any chance of success-Another reason Trial Division deprived of jurisdiction: NEB Act providing right of appeal from Board decision to F.C.A. on question of law or jurisdiction, Federal Court Act, s. 18.5 prohibiting judicial review of decisions in so far as right of appeal exists, and Rocky Mountain failed to exhaust this available avenue-As to second application, mandamus not available-Mandamus compelling performance of public legal duty-Fundamental criteria: (1) clear right to have thing done; (2) duty must actually be due; (3) duty must be purely ministerial in nature; (4) there must be demand and refusal to perform act: Karavos v. Toronto (City), [1948] 3 D.L.R. 294 (Ont. C.A.)-Nowhere in CEAA does it provide DFO and PFRA, either as responsible authorities or as federal authorities in possession of specialist or expert information, must cooperate in holding hearings in specific way or provide to review panel any specific information unless requested to do so-To allow such remedy, in absence of legal right and due duty, would be outside scope of mandamus-NEB did not request information from DFO and PFRA-If Rocky Mountain thinks otherwise, should take up issue by way of review of NEB decision, not by way of proceeding seeking mandamus against DFO and PFRA-Furthermore, manner in which information to be provided to NEB purely discretionary, therefore mandamus cannot issue-Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 12(3),(4)-National Energy Board Act, R.S.C., 1985, c. N-7, s. 22 (as am. by S.C. 1990, c. 7, s. 11)-Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.5 (as enacted by S.C. 1990, c. 8, s. 5), 28(1), (3) (as am. by S.C. 1990, c. 8, s. 8)-Federal Court Rules, 1998, SOR/98-106, r. 49.