ARCHIVED – Court Challenges to National Energy Board or Governor in Council Decisions

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The NEB operates within a system of checks and balances. Our decisions are subject to independent and impartial judicial oversight, generally through the Federal Court of Appeal and Supreme Court of Canada, and the Board is bound to act in accordance with the court’s decisions.

As part of our commitment to transparency, we share information about challenges to the NEB’s decisions and recommendations to the Governor in Council in the database below. The purpose is to provide Canadians with up-to-date information about the status of these legal challenges, regardless of the outcome.

The following information includes the status of litigation, appeals, and judicial reviews related to NEB or Governor in Council decisions, dating back to January 2014. At this time, the database does not include pre-2014 decisions. Where possible, the database provides a link to an external third-party controlled website, such as the Court database or an online version of the decision. It does not include civil claims or judicial reviews of administrative decisions. The database is searchable by project name, parties or filing date.

Other Court Challenges

Project Name Description of Challenge Parties Court Filing Date Court and Docket Number Summary
TransCanada PipeLines Limited’s Niagara Line Leave to appeal, or alternatively, judicial review related to the Board’s decisions on a landowner complaint. James Juras v. TransCanada PipeLines Limited 2015-08-07 Federal Court of Appeal
A-350-15
The applications cite concerns with, among other things, TransCanada’s reclamation work on the applicant’s property in Ontario, and the Board’s decisions related to those activities.

On 3 February 2016, the FCA dismissed J. Juras’ applications.
NGTL North Montney
(GH-001-2014)
Motion for leave to judicially review GIC’s Order in Council PC 2015-0799 to approve the NGTL North Montney Project Saulteau First Nations v. Nova Gas Transmission, and Canada (A-G) 2015-07-06 Federal Court of Appeal
15-A-37
The applicants applied for leave to judicially review GIC’s decision to approve this Project. Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights, the adequacy of reasons, and whether the Project is within federal jurisdiction.

The application for leave to judicially review was dismissed by the FCA on 12 August 2015. The Court did not give reasons for its decision, which is not uncommon.
Enbridge Edmonton to Hardisty Project
(OH-001-2013)
Judicial review application related to the NEB’s 20 March 2015 decision [Filing A69081] denying the applicants’ request to suspend Certificate OC-62 Samson Cree Nation v. NEB, Enbridge Pipelines Inc., Canada (AG) 2015-04-20 Federal Court of Appeal
A-209-15
Among other things, the applicants asked the Court to order the NEB to suspend Certificate OC-62 and related construction activities for a number of reasons, including failure to adequately consult and accommodate the applicants’ constitutional rights and concerns about impacts to culturally-sensitive areas.

Notice of Discontinuance filed on 27 April 2016.
Trans-Mountain Expansion Project
(OH-001-2014)
Challenge to FCA dismissal of leave to appeal NEB’s 2 October 2014 Ruling #34 [Filing A63200] related to the Application to Participate process for TMX Hearing L. Quarmby, E. Doherty, R. Walmsley, J. Vissers, S. Samples, Forestethics Advocacy Association, T. Berman, J. Clarke, and B. Shende v. Canada (AG), Trans Mountain Pipeline ULC, Canadian Association of Petroleum Producers, and NEB 2015-03-19 Supreme Court of Canada File 36353 The applicants seek leave to appeal the FCA 23 January 2015 dismissal of their leave to appeal application regarding Ruling 34 (see FCA 14-A-62). Issues raised included the constitutionality of the standing test in section 55.2 of the NEB Act or, alternatively, the Board’s application of it in the TMX hearing, and whether it violated subsection 2(b) of the Charter.

Application for Leave to Appeal dismissed on 10 September 2015.

The Court did not give reasons for its decision, which is not uncommon.
Trans Canada Energy East Project
(OH-002-2016)
Challenge to 6 January 2015 Decision and 3 February 2015 Decision [Filing A65706] denying requests for translated materials and a postponement of deadlines. Centre Québecois du droit de l’environnement et F. Lamonde v. Office National de L’énergie et le Procureur Général du Canada et Oléoduc Énergie Est Ltée 2015-02-04 Federal Court
T-167-15
The applicants filed a motion with the Federal Court, asking for an interlocutory injunction to suspend the Application to Participate process and Participant Funding Program deadlines until either the report from the Commissioner of Official Languages is issued or the French version of the Energy East application is published on the Board’s website.

Application for interlocutory injunction denied on 16 February 2015.

See 2015 FC 192
Trans-Mountain Expansion Project
(OH-001-2014)
Application for reconsideration of decision in 2014 BCCA 465 City of Burnaby v. Trans Mountain Pipeline ULC and NEB 2014-12-18 British Columbia Court of Appeal File CA042220 Burnaby filed an application for the full Court of Appeal to reconsider the 27 November 2014 dismissal of its Leave to Appeal application.

The application was denied on 13 February 2015.

See 2015 BCCA 78
Trans-Mountain Expansion Project
(OH-001-2014)
Challenge to 23 October 2014 Ruling #40 [Filing A63788] related to granting Trans Mountain access to Burnaby Mountain and a Notice of a Constitutional Question City of Burnaby v. NEB and Trans Mountain Pipeline ULC 2014-10-30 Federal Court of Appeal
14-A-63
Burnaby argued the Board erred in law and jurisdiction on a number of grounds related to the Board’s jurisdiction and how the exercise of the NEB’s jurisdiction impacts Burnaby’s bylaws.

Application for leave to appeal dismissed on 12 December 2014.

The Court did not give reasons for its decision, which is not uncommon.
Trans-Mountain Expansion Project
(OH-001-2014)
Challenge to 2 October 2014 Ruling #34 [Filing A63200] related to the Application to Participate process for TMX Hearing L.M. Quarmby, E. Doherty, R. Walmsley, J. Vissers, S. Samples, ForestEthics Advocacy Association, T. Berman, J. Clarke and B. Shende v. the NEB, Canada (A-G), Trans Mountain Pipeline ULC and Canadian Association of Petroleum producers 2014-10-29 Federal Court of Appeal
14-A-62
The applicants sought leave to appeal Ruling 34. Issues raised included the constitutionality of the standing test in section 55.2 of the NEB Act or, alternatively, the Board’s application of it in the TMX hearing, and whether it violated subsection 2(b) of the Charter.

Application for leave to appeal dismissed on 23 January 2015.

The Court did not give reasons for its decision, which is not uncommon.
Trans-Mountain Expansion Project
(OH-001-2014)
Application for temporary injunction City of Burnaby v. Trans Mountain Pipeline ULC and NEB 2014-10-02 British Columbia Court of Appeal
CA042220
Burnaby filed a Leave to Appeal application to the British Columbia Court of Appeal from the 17 September 2014 decision of the Supreme Court of BC that dismissed Burnaby’s request for a temporary injunction.

The application was denied on 27 November 2014.

See 2014 BCCA 465
Trans-Mountain Expansion Project
(OH-001-2014)
Application for declaration against the NEB involving Constitutional Questions City of Burnaby v. Trans Mountain Pipeline ULC and NEB 2014-09-09 British Columbia Supreme Court
S146911
Burnaby application for declaration against National Energy Board relating to Ruling No. 40 [Filing A63788].

The application was dismissed on 5 November 2015, with written reasons on 20 November 2015.

See 2015 BCSC 2140
Trans-Mountain Expansion Project
(OH-001-2014)
Challenge to 19 August 2014 Ruling #29 [Filing A62323] related to List of Issues for TMX Hearing L.D. Danny Harvey v. NEB and Trans Mountain Pipeline ULC 2014-09-03 Federal Court of Appeal
14-A-59
Mr. Harvey sought leave to appeal the Board’s decisions not to amend the List of Issues to include certain upstream and downstream environmental and socio-economic effects for section 7 Charter reasons, and denying Mr. Harvey’s participation in the hearing.

Application for leave to appeal dismissed on 24 October 2014.

The Court did not give reasons for its decision, which is not uncommon.
Trans-Mountain Expansion Project
(OH-001-2014)
Challenge to 23 July 2014 Ruling #25 [Filing A61912] related to upstream and downstream effects City of Vancouver v. NEB and Trans Mountain Pipeline ULC 2014-08-20 Federal Court of Appeal
14-A-55
Vancouver applied for leave to appeal the Board’s ruling dismissing Vancouver’s request to amend the list of issues to include the environmental and socio-economic effects associated with certain upstream and downstream activities, including the development of oil to be transported, and the downstream use of that oil.

Application for leave to appeal dismissed on 16 October 2014.

The Court did not give reasons for its decision, which is not uncommon.
Enbridge Line 9B
(OH-002-2013)
Charter Challenge to ruling denying application to participate in Hearing OH-002-2013
[Filing A51982]
ForestEthics Advocacy Association and D. Sinclair v. the NEB, Canada (A-G) and Enbridge Pipelines Inc. 2014-08-12 Federal Court of Appeal
A-273-13
The applicants asked the Court to overturn the Board’s decision to deny Ms. Sinclair’s application to participate in the Line 9B hearing because it denied her freedom expression under the Charter, and that the complexity of the Application to Participate form, the List of Issues and the decision not to let her intervene were unreasonable.

The application for judicial review was dismissed on 31 October 2014.

See 2014 FCA 245
(TGS/PGS/Multi Klient) – 2011 Northeastern Canada 2D Marine Seismic Survey Application for judicial review to quash the NEB’s June 26, 2014 decision to grant a Geophysical Operations Authorization to TGS-NOPEC et al. Hamlet of Clyde River, Nammautaq Hunters & Trappers Organization – Clyde River, and J. Natanine v. TGS-NOPEC Geophysical Company ASA (TGS), Petroleum Geo-Services Inc. (PGS), Multi Klient Invest as (MKI), and Canada (A-G) 2014-07-28 Federal Court of Appeal
A-354-14
The applicants sought judicial review of the Board’s decision. Issues raised include the Board’s consideration of adverse environmental effects; Inuit Qaujimajatuqangit / Traditional Knowledge; Strategic Environmental Assessment and cumulative impacts; Inuit rights under the NLCA; and the Crown’s duty to consult and accommodate.

On 17 August 2015, the Court dismissed the judicial review application.

See 2015 FCA 179
Enbridge Northern Gateway
(OH-4-2011)
[Folder 620327]
Leave to seek a judicial review of the Governor-in-Council decision

(The NEB is not a respondent)
ForestEthics Advocacy Association, Living Oceans Society and Raincoast Conservation Foundation (leave 14-A-39, JR A-440-14); Haisla Nation (leave 14-A-45, JR A-447-14); Gitxaala Nation (leave 14-A-41, JR A-437-14); BC Nature (leave 14-A-43, JR A-443-14); Unifor (leave 14-A-44, JR A-442-14); Gitga’at First Nation (leave 14-A-46, JR A-445-14); Kitasoo Xai’Xais Nation, and Heiltsuk Nation (leave 14-A-42, JR A-448-14); Nadleh Whut’en Band and Nak’azdli Band (leave 14-A-48, JR A-439-14); Haida Nation (leave 14-A-47, JR A-446-14) v. Northern Gateway Pipelines Limited Partnership and others 2014-07-11 Federal Court of Appeal

Consolidated file number:
A-437-14

Consolidated short form name:
Gitxaala Nation and others v. Canada (A-G) and others
The applicants filed for leave to seek judicial review of the decisions of the GIC. Issues raised relate to alleged errors made by the JRP; the adequacy of Crown consultation and accommodation of First Nations; First Nations rights and title; and adequacy of GIC’s reasons for its decision.

On 30 June 2016, the Federal Court of Appeal released its decisions related to the Northern Gateway Project.

The five judicial review applications of the Joint Review Panel’s report were dismissed. The nine judicial review applications of the Governor in Council’s Orders in Council and the four appeals of the Certificates of Public Convenience and Necessity were granted. As a result the Orders in Council and the Certificates were quashed, and the Orders in Council were sent back to the Governor in Council for redetermination.

See 2016 FCA 187 for the full decision and reasons.

On 25 November 2016 the GIC denied the project.
[GIC’s Order in Council PC 2016-1047.
Enbridge Northern Gateway
(OH-4-2011)
[Folder 620327]
Leave to appeal the NEB’s issuance of Certificate ForestEthics Advocacy Association, Living Oceans Society and Raincoast Conservation Foundation (leave 14-A-38, appeal A-514-14); Haisla Nation (leave 14-A-51, appeal A-522-14); Gitxaala Nation (leave 14-A-50, appeal A-520-14); Unifor (leave 14-A-52, appeal A-517-14) v. Northern Gateway Pipelines Limited Partnership and others 2014-07-10
2014-07-16
(leaves)

2015-11-25
(leaves)
Federal Court of Appeal Consolidated file number:
A-437-14

Consolidated short form name: Gitxaala Nation and others v. Canada (A-G) and others
The applicants filed for Leave to Appeal the CPCN OC-060 and OC-061 issued by the NEB on 18 June 2014 in respect of the Project. Issues raised are the alleged errors made by the JRP and by GIC.

On 30 June 2016, the Federal Court of Appeal released its decisions related to the Northern Gateway Project.

The five judicial review applications of the Joint Review Panel’s report were dismissed. The nine judicial review applications of the Governor in Council’s Orders in Council and the four appeals of the Certificates of Public Convenience and Necessity were granted. As a result the Orders in Council and the Certificates were quashed, and the Orders in Council were sent back to the Governor in Council for redetermination.

See 2016 FCA 187 for the full decision and reasons.

On 25 November 2016 the GIC denied the project.
[OIC PC 2016-1047]
TransCanada PipeLines Energy East
(OH-002-2016)
Leave to appeal Energy East List of Issues Council of Canadians v. NEB and Canada (A-G), TransCanada PipeLines Limited and Energy East Pipelines Ltd. 2014-05-12 Federal Court of Appeal
14-A-32
The applicant requested leave to appeal the NEB’s decision to release a list of issues for the Energy East project.

Application for leave to appeal dismissed on 25 July 2014.

The Court provided limited reasons in the “whereas” clauses of the Order. Among other things, the Court indicated that the applicant was not, when it filed its motion for leave to appeal, a party to any proceeding before the NEB to which these Lists of Issues were relevant; and even if there was a proceeding before the NEB, only a person who is a party to that proceeding can appeal decisions made in that proceeding.
Trans-Mountain Expansion Project
(OH-001-2014)
Leave to Appeal Hearing Order OH-001-2014 Tsleil-Waututh Nation v. NEB, Trans Mountain Pipeline ULC, and Canada (A-G) 2014-05-02
(leave)

2014-09-08
(appeal)
Federal Court of Appeal
A-386-14
The applicants appealed the issuance of the Hearing Order for this project. Issues raised included errors of law or jurisdiction; the adequacy of Crown consultation and accommodation; compliance with CEAA, 2012; and duty of fairness owed to participants in the hearing.

The Court dismissed the appeal.

See 2016 FCA 219
Enbridge Line 9B
(OH-002-2013)
Application for leave to appeal the NEB’s decision on Line 9B
[Filing A59170]
Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., NEB, Canada (A-G) 2014-04-07
(leave)

2014-08-01
(appeal)
Federal Court of Appeal
A-358-14
The applicants appealed the NEB’s decision on Line 9B. Issues raised include the Crown’s duty to consult and accommodate.

On 20 October 2015, a majority of the Court dismissed the appeal.

See 2015 FCA 222
Enbridge Northern Gateway
(OH-4-2011)
[Folder 620327]
Applications for judicial reviews of the Joint Review Panel Report ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation (A-56-14); Haisla Nation (A-63-14); Gitxaala Nation (A-64-14); BC Nature (A-59-14); Gitga’at First Nation (A-67-14) v. Northern Gateway Pipelines Limited Partnership and others 2014-01-17
2104-01-20
Federal Court of Appeal

Consolidated file number:
A-437-14

Consolidated short form name:
Gitxaala Nation and others v. Canada (A-G) and others
The applicants filed judicial review applications related to the JRP report. The applications raise issues relating to findings of fact made by the Panel; upstream and downstream economic effects; alleged breaches of the CEAA, 2012 and the Species at Risk Act; the adequacy of Crown consultation and First Nations rights and title.

On 30 June 2016, the Federal Court of Appeal released its decisions related to the Northern Gateway Project.

The five judicial review applications of the Joint Review Panel’s report were dismissed. The nine judicial review applications of the Governor in Council’s Orders in Council and the four appeals of the Certificates of Public Convenience and Necessity were granted. As a result the Orders in Council and the Certificates were quashed, and the Orders in Council were sent back to the Governor in Council for redetermination.

See 2016 FCA 187

On 25 November 2016 the GIC denied the project.
[OIC PC 2016-1047]

Court Challenges to National Energy Board or Governor in Council Decisions

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