On November 25, 2014, the Federal Court of Appeal (the Court)
rendered a unanimous decision in Coldwater Indian Band et al v.
The Minister of Indian Affairs and Northern Development et al
2014 FCA 277, upholding the principle that, absent exceptional
circumstances, courts must not interfere with ongoing
administrative processes until after they are completed.
In June 2012, Kinder Morgan Canada Inc. (Kinder Morgan)
initiated an administrative process before the Minister of Indian
Affairs and Northern Development Canada (the Minister), seeking his
consent to assign two easements that allowed Kinder Morgan to
construct, operate and maintain the Trans Mountain Pipeline (the
Pipeline) through Coldwater Indian Reserve No. 1 (the Coldwater
Reserve). The assignment, which was from one Kinder Morgan
affiliate to another, arose as a result of a corporate
restructuring in 2007 related to the sale of Kinder Morgan's
natural gas and propane distribution assets to a third party.
Before the Minister could take the decision, the Coldwater
Indian Band (Coldwater) commenced a judicial review application
seeking to prohibit the Minister from taking the decision, or to
direct the Minister to refuse consent to the assignments.
Lower Court Decision
The Federal Court of Canada denied the primary relief sought,
but granted Coldwater declaratory relief expressly (but not
conclusively) considering whether the Minister's consent should
be granted, and how the Minister ought to exercise his discretion.
The lower court judge (Judge) concluded that Coldwater's
motivation for bringing its application was that Coldwater does not
want the Minister to give his consent, "sensing that there
is a much better deal to be made if Kinder Morgan was required to
bargain under some duress."
Coldwater appealed, arguing that the Judge erred in, among other
things, concluding that the Minister was not required to follow the
informed consent of Coldwater in respect of the easements. Kinder
Morgan cross-appealed, arguing that the Judge erred and exceeded
his jurisdiction by prematurely commenting on a pending Ministerial
Relying on its decision in Canada (Border Services Agency) v. CB
Powell Limited, the Court held that, absent
exceptional circumstances, courts must not interfere with ongoing
administrative processes until after they are completed. Calling
the application a "pre-emptive strike," the Court found
that the Appellants' application has resulted in the very harm
that the Court warned against in CB Powell:
The administrative process was fragmented pending a resolution
of the proceeding;
There was a real risk of further litigation arising from the
All parties incurred unnecessary costs; and
The Minister's decision was unjustifiably delayed.
Coldwater's appeal was dismissed, with costs, and Kinder
Morgan's cross-appeal was granted, with costs.
This decision sends a strong message that courts will allow an
administrative proceeding to run its course, and will not tolerate
pre-emptive applications intended to delay or influence the outcome
of those proceedings.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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