The latest episode in the ongoing and expanding saga of pipeline
opposition in British Columbia is the BC Supreme Court's
decision on November 14, 2014 granting an injunction to Trans
Mountain Pipeline ULC ("Trans Mountain") to prevent
protestors from continuing to interfere with Trans Mountain's
investigative work in the City of Burnaby. The work is part of
Trans Mountain's investigation of routing options for its
proposed pipeline expansion from Edmonton to Burnaby. A full copy
of the decision can be found here.
Trans Mountain sought an injunction to stop protesters from
interfering with the survey and drilling work for the assessments
required by the National Energy Board ("NEB"). The
geotechnical work will include borehole testing within a
conservation area on Burnaby Mountain, which is required to
determine the feasibility of a tunnel under Burnaby Mountain. The
work has been prevented to date by protestors who used aggressive
and threatening tactics to disrupt the survey crews, including the
blowing of bull horns in the ears of the survey crews, making
threating comments and chaining themselves to vehicles. Videos of
the protesting tactics can be seen in this CBC news story.
Trans Mountain's underlying action seeks damages for
trespass, nuisance, assault, intimidation, intentional interference
with contractual relations and conspiracy.
In support of its application for an injunction, Trans Mountain
argued that a delay in completing the field studies would delay the
hearing before the NEB and thereby create uncertainty about the
project. Delays would lead to direct financial harm to Trans
Mountain, and to others contracting with it, estimated to be $5.6
million per month with additional, unquantified losses of revenue.
Trans Mountain also pointed to potential harm to third parties that
could result from the failure to enjoin the defendants'
activities, including lost opportunity to consult in the process,
financial harm to local, provincial and federal economies and delay
and compromise of a Canadian national infrastructure project.
Conversely, the defendants argued that the: (i) the Court either
lacked jurisdiction to hear the application, or ought to decline it
in deference to the NEB; (ii) that the application was premature in
that it is an attempt to circumvent the appeals before the Federal
Court of Appeal and the B.C. Court of Appeal; and, (iii) that on
the merits the application failed to meet the test for an
The defendants' arguments all failed. First, the Court held
that the allegations of tortious behaviour were within the
Court's domain; not the NEB, who lacked the authority to assess
or award damages for tortious conduct. Second, the Court held that
the issues relevant to the injunction application have
"nothing to do with the proceedings under appeal which involve
the City of Burnaby, the plaintiff, and the NEB" and therefore
could not be considered premature. Finally, the defendants failed
to convince the Court that the evidence advanced by Trans Mountain
did not establish a strong prima facie case or a serious question
to be tried, and that even if this threshold had been met, the
balance of convenience did not weigh in favour of dismissing the
The Court concluded that a failure to grant the injunction was
more likely to result in irreparable harm to Trans Mountain, than
the defendants, given the substantial costs and potential loss of
revenue associated with the delays. On the contrary, the Court
indicated that the minimally intrusive nature of the preliminary
work, and limited number of trees to be felled, did not constitute
irreparable harm to the defendants. This was based, at least
partially, on the fact that the City of Burnaby (the occupier of
the land), despite appealing the NEB's approval of the work,
had not applied for stay of that approval. Recent reports are that
a stay application is pending, though the City will face similar
difficulties as the protestors did here in meeting the three part
test for a stay (prima facie case, irreparable harm, balance of
The Court gave the protestors until 4:00 pm on November 17, 2014
to remove their property and to stop interfering with Trans
Mountain's activities. The more aggressive contingent have been
quoted in the press as saying they will refuse to abide by the
terms of the order. If that happens, Trans Mountain is likely to be
back in Court seeking an enforcement order and/or to have those
protestors found in contempt.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).