On Wednesday, Aug. 28, the National Energy Board (NEB) became the Canada Energy Regulator (CER). For further information please visit our Implementing the Canadian Energy Regulator Act information page

ARCHIVED – Court Challenges to Canada Energy Regulator or Governor in Council Decisions

This page has been archived on the Web

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

The CER 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 CER 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 CER’s decisions and recommendations to the Governor in Council in the database below. Challenges to previous National Energy Board decisions and recommendations are also included. 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 the CER or Governor in Council 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.

Court Challenges

Project Name Description of Challenge Parties Court Filing Date NCourt and Docket Number Summary
TransCanada PipeLines Ltd. Station 130 C4 Unit Addition [Folder 3350724] Motion for Leave to Appeal the Board Decision [Filing A91530] approving the Project. Block 41 Landowner Group v. TransCanada PipeLines Ltd. et al. 2018-05-16 Federal Court of Appeal
18-A-19
The applicant sought Leave to Appeal the Board’s decision to approve the Project. Issues raised are acoustic implications of the proposed work and its effect on the land owned by Block 41.

The Federal Court of Appeal denied the Motion for Leave to Appeal on 29 June 2018.
Trans-Mountain Expansion Project
(OH-001-2014)
Notice of Motion seeking leave to appeal Board’s Order [Filing A88474] Attorney General of British Columbia v. Trans Mountain ULC et al. 2018-02-16 Federal Court of Appeal
18-A-11
The applicant filed a notice of motion to appeal the Board’s order. Issue raised is an alleged error of law in respect of the Board’s interpretation and application of interjurisdictional immunity doctrine.

The Federal Court of Appeal dismissed the application for leave to appeal on 23 March 2018.
Trans-Mountain Expansion Project
(OH-001-2014)
Notice of Motion seeking leave to appeal Board’s Order [Filing A88474] City of Burnaby v. Trans Mountain ULC et al. 2018-02-16 Federal Court of Appeal
18-A-9

Supreme Court of Canada
38104
The applicant filed a notice of motion to appeal the Board’s order. Issues raised include multiple questions of law and/or jurisdiction.

The Federal Court of Appeal dismissed the application for leave to appeal on 23 March 2018.

The City of Burnaby filed an application for Leave to Appeal with the SCC on 9 May 2018.

The SCC denied the application on 23 August 2018.
Enbridge Pipelines Inc. Line 3 Replacement Program
(OH-002-2015)
Application for leave to judicially review GIC’s Order in Council PC 2016-1048, approving the Enbridge Line 3 Replacement Program Assembly of Manitoba Chiefs v. Attorney General of Canada and Enbridge Pipelines Inc. 2017-02-03 Federal Court of Appeal
A-36-17
The applicants applied to judicially review GIC’s decision to approve this Project. Issues raised included GIC exceeding its jurisdiction in making its decision and acting inconsistently with its responsibilities under the honour of the Crown and procedural fairness.

The applicant filed a Notice of Discontinuance on 26 October 2017.
Enbridge Line 10 Westover Segment Replacement Project
(OH-001-2016)
Application to judicially review the Board’s decision [Document 3179108] approving the project. City of Hamilton v. Enbridge Pipelines Inc. et al. 2017-02-27 A-67-17 The applicant applied to judicially review based on jurisdictional errors, errors of fact, law, and mixed law and fact with respect to the Board’s decision to allow the line to be decommissioned in place and its findings about the benefits/risks, mitigations, and significance of impacts.

The applicant filed a Notice of Discontinuance on 10 April 2017.
Enbridge Pipelines Inc. Line 3 Replacement Program
(OH-002-2015)
Application for leave to judicially review GIC’s Order in Council PC 2016-1048, approving the Enbridge Line 3 Replacement Program Manitoba Metis Federation v. Attorney General of Canada 2016-12-22 Federal Court of Appeal
A-125-17
The applicant applied for leave to judicially review GIC’s decision to approve this Project. Issues raised included GIC exceeding its jurisdiction in making its decision and acting inconsistently with its responsibilities under the honour of the Crown and procedural fairness.

The applicant filed a Notice of Discontinuance on 4 July 2017.
2017 NGTL System Expansion Project
(GH-002-2015)
Application to judicially review GIC’s Order in Council PC 2016-0962 approving the project. Bigstone Cree Nation v. Nova Gas Transmission Ltd. and Canada (A-G) 2016-12-07

2017-01-26
Federal Court of Appeal
A-31-17
The applicants applied to judicially review the decision to approve the project. Issues raised include the Crown’s duty to consult and accommodate.

Leave to judicially review was granted and the application was filed on 26 January 2017.

The NEB was granted leave to intervene on 20 March 2017.

The FCA dismissed the judicial review on 8 May 2018. See 2018 FCA 89.
Enbridge Northern Gateway
(OH-4-2011)
[Folder 620327]
Application for leave to appeal the FCA decision in Gitxaala Nation v Her Majesty the Queen
[2016 FCA 187]
Raincoast Conservation Foundation v. Her Majesty the Queen et al 2016-09-21 Supreme Court of Canada
37201
The applicant filed for leave to appeal the FCA’s decision. The issue raised relates to the availability of judicial review for an environmental assessment report prepared under the Canadian Environmental Assessment Act, 2012.

On 9 February 2017, the SCC denied the leave to appeal application. The Court did not give reasons for its decision, which is not uncommon.
Alliance Pipeline Ltd. Application for leave to appeal the Board’s 21 July 2016 Letter Decision
[Filing A78635]
Alliance Pipeline Ltd. v. National Energy Board, Canadian Association of Petroleum Producers, Tenaska Marketing Canada, TMV Corp., Encana Corporation, and BP Canada Energy Group ULC 2016-08-22 Federal Court of Appeal
16-A-28
The applicant filed an application for leave to appeal the Board’s decision respecting the prior period adjustment fee. The matter of jurisdiction was raised as an issue.

On 22 March 2017, Alliance discontinued its application.
TransCanada PipeLines Limited Prince Rupert Gas Transmission Project (PRGT Project) Application for leave to appeal the Board’s 30 November 2015 decision [Filing A74353] regarding jurisdiction over the proposed PRGT Project Michael Sawyer v. TransCanada Ltd. and Prince Rupert Gas Transmission Ltd. 2015-12-30

2016-04-14
Federal Court of Appeal
A-115-16
The applicant sought to appeal the Board’s 30 November 2015 decision dismissing Mr. Sawyer’s application for a determination that the PRGT Project fell within federal jurisdiction and regulated by the Board.

On 19 July 2017, the FCA allowed the appeal remitting the appellant’s application to the Board for redetermination.

See 2017 FCA 159
Trans Canada Energy East Project
(OH-002-2016)
Challenge to the Board's 21 March 2016 decision [Filing A76011] with respect to the French version of the consolidated application of Energy East Centre Québécois du droit de l’environnement, André Bossinotte, Réjean Beauparlant, Guy Provost and Stéphane Sansfaçon v. Office National de L’énergie et le Procureur Général du Canada 2016-04-20 Federal Court
A-125-16
The applicants filed a notice of application for judicial review seeking a determination of the applicability of the Canadian Charter of Rights and Freedoms and the Official Languages Act to the French version of Energy East’s consolidated application.

The applicants filed a Notice of Discontinuance on 6 December 2017.
Enbridge Line 9B
(OH-002-2013)
Appeal of the FCA’s decision [2015 FCA 222] related to the NEB’s 6 March 2014 decision to approve Line 9B. [Filing A59170] Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., NEB, Canada (A-G) 2015-12-18 Supreme Court of Canada
36776
The applicants appealed the FCA’s decision dismissing their appeal related to Enbridge’s Line 9B. Issues raised include the role of administrative tribunals in relation to the Crown’s duty to consult and accommodate

On 26 July 2017, the SCC dismissed the appeal.

See 2017 SCC 41
Trans-Mountain Expansion Project
(OH-001-2014)
Appeal of BCSC decision in 2015 BCSC 2140 City of Burnaby v. Trans Mountain Pipeline ULC and NEB 2015-12-01 British Columbia Court of Appeal CA043285 Application to appeal BCSC dismissal related to NEB Ruling No. 40 [Filing A63788.]

On 27 March, 2017, the BCCA dismissed the appeal.

See 2017 BCCA 132
(TGS/PGS/Multi Klient) – 2011 Northeastern Canada 2D Marine Seismic Survey Appeal of the FCA’s judicial review decision [2015 FCA 179] on 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) 2015-10-14 Supreme Court of Canada
36692
The applicants appealed the FCA’s dismissal of their application to judicially review the Board’s decision. Issues raised relate to the Crown’s duty to consult and accommodate, and its ability to rely on the Board’s processes.

On 26 July 2017, the SCC allowed the appeal.

See 2017 SCC 40
NGTL North Montney
(GH-001-2014)
Application for leave to appeal the FCA’s 12 August 2015 dismissal of the motion to judicially review GIC’s Order in Council PC 2015-0799 to approve the NGTL North Montney Project Saulteau First Nations v. Canada (A-G), Nova Gas Transmission, and the NEB 2015-10-13 Supreme Court of Canada
36677
The applicants applied for leave to appeal the FCA’s dismissal of their application to judicially review GIC’s decision to approve this Project. Issues raised include the test for leave to judicially review pursuant to section 55 of the National Energy Board Act and whether the Project is under federal or provincial jurisdiction

Application for Leave to Appeal dismissed on 14 September 2017.

The Court did not give reasons for its decision, which is not uncommon.

See 2017 SCC (36677) 
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 Blueberry River First Nations v. Nova Gas Transmission, and Canada (A-G) 2015-07-06 Federal Court of Appeal
15-A-36


Supreme Court of Canada
36676
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 and concerns about direct and cumulative impacts to culturally-sensitive areas and Treaty rights.

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.

Application for Leave to Appeal dismissed on 14 September 2017.

The Court did not give reasons for its decision, which is not uncommon.

See 2017 SCC (36676)
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
2014-01-20
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]
ITC Lake Erie Connector IPL
(EH-001-2015)
Application to judicially review GIC’s Order in Council, PC 2017-0808 approving the project Mississaugas of the New Credit First Nation v. Attorney General of Canada and ITC Lake Erie Connector LLC 2017-07-24 Federal Court
T-1385-17
The applicant applied to judicially review the GIC’s approval of the ITC Lake Erie Connector project. Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights.

The applicant filed a Notice of Discontinuance on 26 October 2018.
Trans Mountain Detailed Route Hearing – City of Burnaby – Segment 7
(MH-033-2017)
[Folder 3324466]
Application to judicially review the Board’s decision dated 26 April 2018 approving the route. City of Burnaby v. Trans Mountain Pipeline ULC and Canada Energy Regulator 2018-05-24 Federal Court of Appeal
A-152-18
The applicant applied to judicially review the Board’s decision to approve the route and construction methods. Issues raised include weighing of evidence and reasonableness of findings and determinations.
The applicant filed a Notice of Discontinuance on 17 September 2019.

Consolidated Trans Mountain Expansion Project Judicial Reviews

Trans Mountain Expansion (TMX) Project
(OH-001-2014)

Nine applicants applied individually for leave to judicially review GIC’s Order in Council PC 2016-1069 (OIC), approving the TMX Project. Leave was granted on 22 February 2017. On 9 March 2017, the Court ordered the judicial review proceedings be consolidated under file number A-78-17. The 7 day oral hearing concluded in Vancouver at the Federal Court of Appeal on 13 October 2017. On 30 August 2018, the Federal Court of Appeal granted the consolidated judicial reviews, quashed the Order in Council and remitted the matter back to Governor in Council for prompt redetermination. The Court considered the Board’s assessment of marine shipping under the NEB Act but found that the NEB ought to reconsider its decision not to include project-related marine shipping as part of the designated project assessed under CEAA. The Court further found that Canada failed to fulfill its duty to consult owed to Indigenous peoples. Other flaws asserted against the Board’s process and findings were found to be without merit. The City of Burnaby filed an Application for Leave to Appeal the FCA decision dated 30 August 2018 with the Supreme Court of Canada on 26 October 2018. The SCC denied the application on 2 May 2019.

Parties Court Filing Date Court and Docket Number Summary
Tsleil-Waututh Nation v. National Energy Board, Trans Mountain Pipeline ULC and Attorney General of Canada 2017-01-13 Federal Court of Appeal
A-78-17
LEAD FILE
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights and compliance with CEAA 2012.
Aitchelitz et al  v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-28 Federal Court of Appeal
A-86-17
Issues raised include procedural fairness and the Crown’s duty to consult and accommodate the applicants’ constitutional rights.
Upper Nicola Band v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-28 Federal Court of Appeal
A-74-17
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Squamish Nation et al v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-23 Federal Court of Appeal
A-77-17
Issues raised include assessment of impacts and the Crown’s duty to consult and accommodate the applicants’ constitutional rights.
Coldwater Indian Band v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-23 Federal Court of Appeal
A-76-17
Issues raised include assessment of impacts and the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Chief Ron Ignace, Stk'emlupsemc Te Secwepemc Nation  et al v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-22 Federal Court of Appeal
A-68-17
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights and cumulative effects.
City of Burnaby v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-20 Federal Court of Appeal
A-75-17
SCC 38379
Issues raised include the validity of the OIC, assessment of impacts and alternative means, and procedural fairness.
Raincoast Conservation Foundation & Living Oceans Society v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-19 Federal Court of Appeal
A-84-17
Issues raised include the validity of the OIC, and assessment of impacts under CEAA 2012 and SARA.

Seven applicants applied individually for judicial review of the National Energy Board’s Recommendation Report dated 19 May 2016 [Filing A77045]. On 22 February 2017, the Court adjourned the seven judicial reviews of the NEB Report, for consideration by the assigned Panel of the nine leave applications granted. On 9 March 2017, the Court ordered the judicial review proceedings be consolidated under file number A-78-17. On 28 April 2017, the applicants, Kwantlen First Nation, Cheam First Nation and Chawathil First Nation, filed a Notice of Discontinuance, Federal Court of Appeal A-230-16. The 7 day oral hearing concluded in Vancouver at the Federal Court of Appeal on 13 October 2017. The Federal Court of Appeal dismissed the 6 judicial reviews on 30 August 2018.

Parties Court Filing Date Court and Docket Number Summary
Tsleil-Waututh Nation v. National Energy Board, Trans Mountain Pipeline ULC and Attorney General of Canada 2016-06-20 Federal Court of Appeal
A-232-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.
City of Vancouver v. The Attorney General of Canada, National Energy Board and Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-225-16
Issues raised include seeking to prohibit the GIC and the Board from making any decisions, issuing any orders or taking any other actions to enable the Project to proceed until the requirements of the NEB Act and CEAA 2012 have been met.
City of Burnaby v. Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-224-16
Issues raised included procedural fairness and/or natural justice matters and the public interest determination and seeking to quash the Board’s Recommendation Report.
Coldwater Indian Band and others v. Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-223-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.
Raincoast Conservation Foundation and Living Oceans Society v. Attorney General of Canada and Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-218-16
Issues raised include seeking to prohibit the GIC and the Board from making any decision, issuing any orders or taking any other actions to enable the Project to proceed until the requirements of the NEB Act, CEAA 2012 and SARA have been met.
The Squamish Nation (also known as the Squamish Indian Band) et al v. Trans Mountain Pipeline ULC 2016-06-16 Federal Court of Appeal
A-217-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.

Trans Mountain Expansion Project Reconsideration

On 30 August 2018, the Federal Court of Appeal quashed Order in Council P.C. 2016-1069 and remitted the matter back to Governor in Council for prompt redetermination.

On 22 February 2019, the Board delivered its report regarding the Trans Mountain Expansion (TMX) Project – Reconsideration (MH-052-2018) [Folder 3614457] recommending approval.

Twelve applicants applied individually for leave to judicially review GIC’s Order in Council PC 2019-0820, to re-issue approval of the Trans Mountain Expansion Project. The FCA granted 6 of the leave applications and dismissed 6 others on 4 September 2019. See 2019 FCA 224. Leave was limited to only the issue of the sufficiency of Crown consultation. Stk'emlupsemc Te Secwepemc Nation and Upper Nicola Band filed Notices of Discontinuance on 4 November 2019. The new lead file is now A-324-19.

Parties Court Filing Date Court Number – Federal Court of Appeal Summary
Raincoast Conservation Foundation et al. v. AGC and Trans Mountain Pipeline ULC 2019-07-08 19-A-35 Issues raised include SARA and protection for Southern Resident Killer Whales. Dismissed.
Federation of BC Naturalists v. AGC and Trans Mountain Pipeline ULC 2019-07-08 19-A-39 Issues raised include compliance with section 79(2) of SARA, CEAA 2012 and NEB Act, and breach of procedural fairness and natural justice. Dismissed.
Stz’uminus First Nation v. AGC and Trans Mountain Pipeline ULC 2019-07-08 19-A-41 Issues raised include the Crown’s duty to consult and accommodate. Dismissed.
City of Vancouver v. AGC and Trans Mountain Pipeline ULC 2019-07-08 19-A-44 Issues raised include adverse effects of Project related to GHG, CEAA, effects of a marine spill and the 12 nautical mile territorial limit and the EEZ. Dismissed.
Shxw’owhamel First Nation v. AGC and Trans Mountain Pipeline ULC 2019-07-08 19-A-45 Issues raised include the Crown’s duty to consult and accommodate and conflict of interest of the Crown. Dismissed.
Olivier Adkin-Kaya et al. v. AGC and Trans Mountain Pipeline ULC 2019-07-09 19-A-46 Issues raised include impacts on the youth, contribution of the Project to climate change and CEAA and NEB Act. Dismissed.

Court Challenges to Canada Energy Regulator or Governor in Council Decisions

Date modified: