Case information

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.

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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.