Energy Litigation

• Published date: 29 March 2021
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Energy Perspectives, William Horne, Samuel Lepage, Kyle McMillan, Julie Parla and Sam Rogers

Alberta

NORMTEK RADIATION SERVICES LTD V. ALBERTA ENVIRONMENTAL APPEAL BOARD, 2020 ABCA 456

Whether a party has standing before a tribunal is not commonly litigated, however, the question of standing can be of critical importance to parties appearing before administrative tribunals such as the Alberta Environmental Appeal Board.

In this case, the appellant, Normtek, opposed an approval to amend a landfill approval to allow the disposal of concentrated, naturally occurring radioactive material ("NORM"), which had been granted by the designated director of approvals (the "Director"). Normtek, which is in the business of disposing of NORM, did not oppose the approval outright, but only certain conditions of the approval, which allowed for high level radioactive waste to be dumped near the surface.

After having its statement of concern rejected by the Director, who claimed Normtek was not directly affected by the approval, the company attempted to appeal the Director's decision to grant the permit to the Environmental Appeals Board (the "Board"). As with statements of concern submitted to the Director, the Environmental Protection and Enhancement Act (the "Act"), requires the appellant to be "directly affected" by the Director's decision. Normtek submitted that it was directly affected by the decision because the approval to allow dumping of high level waste near the surface (rather than in a deep geological formation), would affect its business and its nascent industry, which abided by national and international standards that Normtek stated were not being upheld. The Board denied standing on several grounds, including: (i) that Normtek's concerns were primarily economic; and (ii) that "[f]or the Appellant to be directly affected, they need to demonstrate on a prima facie basis either they will be impacted from radiation coming from the Landfill or that their use of a natural resource will be impacted by radiation coming from the Landfill." Normtek's application for judicial review of the Board's decision was dismissed.

The Alberta Court of Appeal considered the narrow interpretation of "directly affected" adopted by the Board to be unreasonable and unsupported by the Act. The Court noted that the economic effects of an approval may be enough to ground standing, and addressed other problems with the Board's decision, including failing to consider relevant evidence and applying an overly strict standard for the appellant to meet. Although the Court seems to advocate a lenient approach to the standing issue, it is significant that the Board in this case does not make substantive decisions, but rather reports information to the responsible Minister and makes nonbinding recommendations. The gatekeeping role of the Board means that the concerns of an appellant who is denied standing will never even come to the attention of the ultimate decision maker. The Court remitted the issue of Normtek's standing back to the Board to be decided "having regard to the provisions of the Act and the evidence relevant to the determination to be made."

ECOJUSTICE CANADA SOCIETY V. ALBERTA JUDICIAL REVIEW, 2020 ABQB 364 AND 2020 ABQB 736

In 2019, the Government of Alberta launched a public inquiry under the Public Inquiries Act to investigate anti-Alberta energy campaigns supported by foreign organizations, and appointed a Commissioner. Ecojustice brought an application for judicial review seeking to stop the public inquiry on three grounds. That application was set to be heard in April 2020, but had to be adjourned sine die because of the emerging COVID-19 pandemic. A decision on the underlying application is expected in 2021.

Two interlocutory applications were heard in 2020 that will be of interest to those following the case. In the first, an "industry consortium" of organizations and one individual sought leave of the Court to jointly intervene in order to speak to two of the three grounds upon which Ecojustice brought its application. All were pro-industry, and the individual intervenor was outspoken about those who opposed Alberta oil and gas. Ecojustice opposed the application for intervenor status, and although the Court agreed with Ecojustice that the arguments proposed to be raised were speculative, it ultimately found that the consortium's industry perspective and direct interest in the matter weighed in favour of allowing it to intervene on one of the two matters to which it applied. Unsurprisingly, the Court cautioned the intervenors against inflammatory political rhetoric.

In the second interlocutory application, Ecojustice sought an injunction to stay the inquiry until the judicial review application could be heard, citing numerous procedural grounds for its application. The Court applied the test from RJR-MacDonald Inc. v. Canada (Attorney General), and found that there was no clear evidence of irreparable harm to Ecojustice's reputation that would ensue if the injunction was not granted (as Ecojustice alleged), and the application therefore failed.

" Both the judicial review decision, and depending on the outcome, the report of the Commissioner, will be interesting reading for everyone involved in the Alberta energy sector in 2021. "

ALEXIS V. ALBERTA (ENVIRONMENT AND PARKS), 2020 ABCA 188

In another post-Vavilov decision, the Alberta Court of Appeal considered a situation where an administrative decision maker was not required to provide reasons for her decision, and did not.

In Alexis v. Alberta (Environment and Parks), the Applicant asked a Director under the Environmental Protection and Enhancement Act (the "Act") to order an environmental impact assessment report after the Director had declined to do so. The Applicant took the position that this was required under the terms of the Act. However, the...