Canada: Federal Court Of Appeal Continues Its Stand Against Forest Ethics

Last Updated: February 12 2015
Article by Michael A. Marion and Andrew Pozzobon

Most Read Contributor in Canada, September 2016

On January 23, 2015, Justice Nadon of the Federal Court of Appeal dismissed an application by a group for leave to appeal the National Energy Board's Ruling No. 34 concerning the Trans Mountain Expansion Project.  The group was led by Forest Ethics Advocacy, an environmental organization that claimed that the National Energy Board was infringing on people's Charter rights by restricting public participation in the Trans Mountain Expansion Project pipeline hearing. The Federal Court of Appeal did not provide reasons for its decision to dismiss the application, which is its usual practice. However, in October 2014 the Federal Court of Appeal released a decision in a different case in which the Court dismissed Forest Ethics Advocacy's application for judicial review and held that Forest Ethics was a classic busybody and it was not "directly affected" by the National Energy Board's decision relating to Enbridge's Line 9 project.

BLG had previously written about the Trans Mountain Ruling No. 34 in an article entitled NEB Finds That an "Untrammeled Right" of the Public to Open Expression would Defeat the NEB's Statutory Objectives ( found here). The Board, in its decision, noted that it invites public participation to assist in fulfilling its statutory mandate of regulating pipelines, energy development and trade in the public interest.  However, an "untrammeled right" of the public to open public expression would come at the expense of the Board's statutory objectives.   The Board went on to note that the National Energy Board Act (NEB Act) was intended to provide those "directly affected" with a reasonable opportunity to express their views while, at the same time, providing for an efficient process. 

The Federal Court of Appeal ("FCA") did not provide reasons for its decision to dismiss the application for leave by Forest Ethics Advocacy ("Forest Ethics"), which is its usual practice. However, in another recent FCA decision, the Court had held that Forest Ethics did not have standing to appeal a decision of the NEB as it was not "directly affected".  In October 2014, the FCA released its decision in Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 245 (found here – also see BLG's recent publication 2014 in Review, found here). In that case, Forest Ethics and Donna Sinclair had filed an application for judicial review based on three decisions of the Board that were made in Enbridge Pipelines Inc.'s Line 9 project.  Forest Ethics and Ms. Sinclair had challenged the Board's decisions on two bases: the constitutional guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms and administrative law unreasonableness.

The FCA in Forest Ethics Advocacy Association v. National Energy Board noted that the provisions of the NEB Act were concerned with fairness and efficiency by focusing on consultation on individuals directly affected by an application. The FCA held that Forest Ethics was not "directly affected" by the Board's decisions as the decisions "did not affect its legal rights, impose legal obligations upon it, or prejudicially affect it in any way". Therefore, Forest Ethics did not have direct standing to bring an application for judicial review.  As Forest Ethics did not have standing it only considered Ms. Sinclair's application and ultimately concluded the decision made by the NEB was reasonable. 

The FCA commented on Forest Ethics and stated that the law prevented organizations that were not directly affected from appealing decisions to the Federal Court of Appeal. The FCA noted that:

Forest Ethics is a classic "busybody," as the term is understood in jurisprudence. Forest Ethics asks this Court to review an administrative decision it had nothing to do with. It did not ask for any relief from the Board. It did not seek any status from the Board. It did not make any representations on any issue before the Board. In particular, it did not make any representations to the Board concerning the three interlocutory decisions


If Forest Ethics were allowed to bring an application for judicial review in these circumstances, it and similar organizations would be able to bring an application for judicial review against any sort of decision anywhere at any time, pre-empting those who might later have a direct and vital interest in the matter. That is not the state of our law.

In denying Forest Ethics standing, the FCA appears to be concerned with the court being be "hopelessly overburdened" by a proliferation of "marginal or redundant suits brought by well-meaning organizations". The FCA justified the limitations on standing based on: properly allocating scarce judicial resources and screening out the mere busybody; ensuring that courts have the benefit of contending points of view of those most directly affected by the determination of the issues; and preserving the proper role of courts and their constitutional relationship to the other branches of government. This case, and the recent dismissal by the FCA of the application for leave by Forest Ethics, confirms that there are limitations on standing and only those directly affected should be entitled to appeal the decisions of the NEB.

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