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38104

City of Burnaby v. Trans Mountain Pipeline ULC, et al.

(Federal) (Civil) (By Leave)

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
Date Proceeding Filed By
(if applicable)
2018-09-05 Close file on Leave
2018-08-24 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2018-08-24 Judgment on leave sent to the parties
2018-08-23 Judgment of the Court on the application for leave to appeal,
The application for leave to appeal from the judgment of the Federal Court of Appeal, Number 18-A-9, dated March 23, 2018, is dismissed with costs to the respondents, the Trans Mountain Pipeline ULC and the Attorney General of Alberta.
Dismissed, with costs
2018-07-09 All materials on application for leave submitted to the Judges, for consideration by the Court
2018-06-21 Applicant's reply to respondent's argument, (Book Form), Completed on: 2018-06-21 City of Burnaby
2018-06-14 Certificate (on limitations to public access), (Letter Form) Trans Mountain Pipeline ULC
2018-06-14 Notice of name, (Letter Form) Trans Mountain Pipeline ULC
2018-06-14 Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2018-06-14 Trans Mountain Pipeline ULC
2018-06-14 Certificate (on limitations to public access), (Letter Form) Attorney General for Saskatchewan
2018-06-14 Respondent's response on the application for leave to appeal, (Letter Form), Completed on: 2018-06-14 Attorney General for Saskatchewan
2018-06-13 Certificate (on limitations to public access), (Letter Form) Attorney General of Alberta
2018-06-13 Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2018-06-13 Attorney General of Alberta
2018-05-25 Respondent's response on the application for leave to appeal, (Letter Form), takes no position, Completed on: 2018-05-25 National Energy Board
2018-05-16 Notice of name, (Letter Form) City of Burnaby
2018-05-15 Letter acknowledging receipt of a complete application for leave to appeal, FILE OPENED 2018/05/15
2018-05-09 Certificate (on limitations to public access) City of Burnaby
2018-05-09 Application for leave to appeal, (Book Form), Notice of Name missing-rec'd 2018/05/16, Completed on: 2018-05-16 City of Burnaby

Parties

Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.

Main parties

Main parties - Appellants
Name Role Status
City of Burnaby Applicant Active

v.

Main parties - Respondents
Name Role Status
Trans Mountain Pipeline ULC Respondent Active
National Energy Board Respondent Active
Attorney General for Saskatchewan Respondent Active
Attorney General of Alberta Respondent Active
Attorney General of British Columbia Respondent Active

Counsel

Party: City of Burnaby

Counsel
Gregory J. McDade, Q.C.
Jamie Arbeau
Ratcliff & Company
221 West Esplanade
Suite 500
North Vancouver, British Columbia
V7M 3J3
Telephone: (604) 988-5201
FAX: (604) 988-1452
Email: gmcdade@ratcliff.com
Agent
Marie-France Major
Supreme Advocacy LLP
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca

Party: Trans Mountain Pipeline ULC

Counsel
Maureen E. Killoran, Q.C.
Olivia Dixon
Sean Sutherland
Osler, Hoskin & Harcourt LLP
Suite 2500, Trans Canada Tower
450 - 1st Street S.W.
Calgary, Alberta
T2P 5H1
Telephone: (403) 260-7003
FAX: (403) 260-7024
Email: mkilloran@osler.com
Agent
Geoffrey Langen
Osler, Hoskin & Harcourt LLP
Suite 1900
340 Albert Street
Ottawa, Ontario
K1R 7Y6
Telephone: (613) 787-1009
FAX: (613) 235-2867
Email: glangen@osler.com

Party: National Energy Board

Counsel
Paul Johnston
National Energy Board
Suite 210, 517 Tenth Avenue SW
Calgary, Alberta
T2R 0A8
Telephone: (403) 292-6495
Email: paul.johnston@neb-one.gc.ca

Party: Attorney General for Saskatchewan

Counsel
Thomson Irvine, Q.C.
Mitch McAdam, Q.C.
Katherine Roy
Attorney General for Saskatchewan
1874 Scarth St - 8th Floor
PO Box 7129
Regina, Saskatchewan
S4P 3V7
Telephone: (306) 787-6307
FAX: (306) 787-9111
Email: Tom.irvine@gov.sk.ca
Agent
D. Lynne Watt
Gowling WLG (Canada) LLP
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com

Party: Attorney General of Alberta

Counsel
Lillian Riczu
Attorney General of Alberta
4th floor, 9833 - 109 Street
Edmonton, Alberta
T5K 2E8
Telephone: (780) 422-9114
FAX: (780) 425-0307
Email: lillian.riczu@gov.ab.ca
Agent
D. Lynne Watt
Gowling WLG (Canada) LLP
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com

Party: Attorney General of British Columbia

Counsel
Tom Berger, O.C., Q.C.
Monique Pongracic-Speier
Ethos Law Group LLP
Suite 702, 2695 Granville Street
Vancouver, British Columbia
V6H 3H4
Telephone: (604) 569-3022 Ext: 2
FAX: (866) 591-0597
Email: trberger@ethoslaw.ca
Agent
Michael J. Sobkin
331 Somerset Street West
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca

Summary

Keywords

Constitutional law – Division of powers – Federal paramountcy – Interjurisdictional immunity – Jurisdiction of boards and tribunals to apply these doctrines to municipal bylaws – Can delay in an otherwise valid municipal permitting process result in findings of constitutional inapplicability of municipal bylaws because of interjurisdictional immunity or paramountcy? – Does the manner of and timing of a municipality’s processing of applications for preliminary plan approvals and tree cutting permits render the process constitutionally inapplicable or inoperable? – Does the National Energy Board have jurisdiction to make a constitutional declaration in respect of municipal bylaws in the absence of any action contrary to the National Energy Board Act? – Does the National Energy Board have jurisdiction to review municipal processes for unreasonableness or inefficiency? – National Energy Board Act, R.S.C., 1985, c. N-7, sections 12, 13, 73.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Trans Mountain expansion project includes a twinning of the existing Trans Mountain pipeline system in Alberta and B.C. with construction of new and modified facilities, including facilities in the City of Burnaby (Burnaby) where the pipeline terminates. When the project was approved in late 2016, a certificate of public convenience and necessity was issued by the National Energy Board (the Board) and was subject to conditions including a requirement that Trans Mountain Pipeline ULC (Trans Mountain) comply with all of the conditions, unless the Board otherwise directs. The Board had authorized the terminal work in Burnaby and, in order to proceed, Trans Mountain sought approval from Burnaby by submitting four preliminary planning approval applications and a tree plan in June 2017. By late October, Burnaby had not decided on any of Trans Mountain’s applications and claimed they remained incomplete. The outstanding approvals prevented Trans Mountain from commencing its work. Trans Mountain therefore brought a motion to the Board seeking an order that would exempt it from compliance with Burnaby’s bylaws. The motion also included a notice of constitutional question in relation to the applicability and operability of these bylaws. The Board found that Burnaby’s bylaw review process was unreasonable, and caused unreasonable delay. It relieved Trans Mountain from obtaining preliminary plan approvals and permits under Burnaby’s tree bylaw by declaring those bylaws to be inapplicable to the pipeline work at the terminal. The Federal Court of Appeal dismissed Burnaby’s application for leave to appeal.

Lower court rulings

March 23, 2018
Federal Court of Appeal

18-A-9

City of Burnaby’s application for leave to appeal dismissed with costs.

Memorandums of argument on application for leave to appeal

The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.

Downloadable PDFs

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Factums on appeal

The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.

Downloadable PDFs

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Webcasts

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Date modified: 2025-02-27