The City of Burnaby's latest effort to assert jurisdiction
over work performed in Burnaby in connection with the Trans
Mountain Expansion Project was recently dismissed for procedural
and constitutional reasons in Burnaby (City) v Trans Mountain
Pipeline ULC,2015 BCSC 2140. This post provides an
update on the litigation, which we have previously summarized – all of it arising from the City's
enforcement of its bylaws in a manner that impeded work that the
National Energy Board (NEB) had mandated Trans Mountain Pipeline
ULC to do.
In 2013, Trans Mountain applied to the NEB for a certificate of
public convenience and necessity for the Project, which involves
twinning an existing pipeline and related construction. In 2014,
the NEB ordered Trans Mountain to complete a number of engineering
studies within Burnaby by December of that year. When Trans
Mountain began the work, the City enforced its traffic and parks
bylaws in a manner that "attempted to thwart or frustrate
Trans Mountain in conducting the engineering studies" (para
24; all quotations are from the decision cited above). After the
NEB ruled that under the National Energy Board Act (the
NEBA) Trans Mountain could conduct its work in Burnaby
without the City's consent, the City did not appeal, but cited
some of the Trans Mountain workers for bylaw violations.
Since that time:
The NEB ruled that certain of the City's bylaws were
constitutionally inoperative to the extent that they impaired Trans
Mountain in doing things authorized by the NEBA, and the
Federal Court of Appeal (FCA) denied leave to appeal;
The City unsuccessfully sought an interlocutory injunction to
enjoin Trans Mountain from violating its bylaws; a single justice
of the B.C. Court of Appeal denied leave to appeal from that
decision; and a three-member division of the appellate Court
declined, on grounds of mootness, to vary the denial of leave: the
engineering work that triggered the injunction application had been
In the recent decision, the Court dismissed the City's
application for declarations that it had the constitutional
authority to enforce its bylaws notwithstanding the NEB's
rulings. The Court declined jurisdiction, holding that it was an
abuse of process for the City to have applied for relief that it
failed to obtain at the NEB and FCA. The Court went on to consider
the substance of the constitutional issues (in case the
jurisdictional ruling was overturned on appeal), reaching the same
conclusions as the NEB. The doctrines of federal paramountcy and
interjurisdictional immunity meant "that Burnaby's bylaws
can have no application so as to impede or block the location of
the Pipeline or the studies needed to determine its location"
(para 75). Further, the B.C. Supreme Court held that "[w]here
a pipeline is located, down to the centimeter, is as much a federal
question as which provinces it crosses" (Ibid). The
City was ordered to pay Trans Mountain's legal costs, and has
announced that it will appeal the
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In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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