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Practice Direction

Applications for leave to apply for judicial review under subsection 55(1) of the National Energy Board Act of an order of the Governor in Council made under subsection 54(1) of the National Energy Board Act

TO:

Members of the Legal Profession and all parties to proceedings in this Court

FROM:

The Honourable Karen Sharlow. J.A. (Acting Chief Justice)

DATE:

July 23, 2014

SUBJECT:

PRACTICE DIRECTION – applications for leave to apply for judicial review under subsection 55(1) of the National Energy Board Act of an order of the Governor in Council made under subsection 54(1) of the National Energy Board Act


  1. An application for leave to apply for judicial review of an order of the Governor in Council under subsection 54(1) of the National Energy Board Act must be sought by a notice of motion contained in a motion record prepared, served and filed in accordance with the following directions and the applicable provisions of the Federal Courts Rules (the “Rules”) that are consistent with these directions.

  2. The cover page of the motion record must bear the following title:

Motion for leave to apply for judicial review
of Order in Council, P.C. _____________made by the Governor in Council
under subsection 54(1) of the National Energy Board Act

  1. The cover page of the motion record must include this notation in capital letters:

ANY RESPONDENT WISHING TO FILE A MOTION RECORD IN RESPONSE TO THIS MOTION FOR LEAVE MUST DO SO WITHIN TEN (10) DAYS OF BEING SERVED.
REFER TO THE PRACTICE DIRECTION INCLUDED
IN THIS MOTION RECORD AT PAGES _____.

  1. The respondents to the motion for leave will be the following (excluding the applicant for leave): the Attorney General of Canada, the applicant before the National Energy Board, and all those who will be party respondents to the application for judicial review under Rule 303 if leave is granted (see Forest Ethics Advocacy Association v. Canada (National Energy Board), 2013 FCA 236). The National Energy Board is not to be named as a respondent. All motion materials must be served on all parties to the motion and the National Energy Board.
  2. To reduce the number and complexity of motions for leave, parties are encouraged to work together and, if possible, file joint motions and joint responses.

  3. Those not named as parties to the motion for leave may monitor whether any motions for leave have been brought and the status of any motion by making a proceedings query at this URL: http://cas-cdc-www02.cas-satj.gc.ca/portal/page/portal/fca-caf_eng/dockets-dossiers_eng and searching using the name of the applicant before the National Energy Board. If leave is granted, motions for leave to intervene in the application for judicial review will be considered under Rule 109.
  4. The applicant for leave must file three copies of the motion record with proof of service within the time stated in paragraph 55(2)(a) of the National Energy Board Act or such further time as a judge of this Court may allow pursuant to paragraph 55(2)(b) of that Act.

  5. The motion record must include, in consecutively numbered pages and in the following order:
    1. a detailed table of contents:
    2. the notice of motion for leave;
    3. a copy of the order of the Governor in Council made under subsection 54(1) of the National Energy Board Act and the reasons given by the Governor in Council, if any;
    4. a copy of the report(s) of the National Energy Board as submitted to the Governor in Council unless the relevant excerpts are included as exhibits to an affidavit under paragraph 8(f) below;
    5. a copy of this practice direction;
    6. an affidavit setting out any facts relied on by the applicant for leave and appending any documents upon which the applicant relies that were before the National Energy Board or the Governor in Council;
    7. if the applicant for leave relies on any documents that were not before the National Energy Board or the Governor in Council, a separate affidavit appending those documents and explaining why they were not before the National Energy Board or the Governor in Council, and why they are relevant to the application for leave;
    8. a copy of the draft proposed application for judicial review; and
    9. a memorandum of fact and law that complies with Rules 65 to 70 of the Federal Courts Rules.
  6. Note that Tariff A of the Rulesimposes a $30 fee for the filing of a notice of motion for leave to commence a proceeding (item 1(2)(b)).

  7. A respondent who wishes to respond to the motion for leave may do so by filing (with proof of service) three copies of a motion record not later than 10 days after service of the applicant’s motion record. The motion record must contain a responding memorandum of fact and law that complies with Rules 65 to 70, and may contain one or more affidavits relied upon by the respondent of the sort described in paragraphs 8(f) and 8(g) above.
  8. The applicant for leave may reply to a respondent’s motion record by filing (with proof of service) three copies of a reply not later than 5 days after the 10 days set out in paragraph 10 have expired.

  9. In a motion for leave, a party may serve other parties and receive service of documents electronically (e-service) subject to the protocol set out in this paragraph.
    1. Those parties wishing to participate in e-service must agree in writing to e-service in accordance with this practice direction and the agreement must be filed with the Registry.
    2. E-service of a document consists of:
      1. physical delivery of a USB drive, a USB memory stick, a CD or a similar device containing an electronic copy of the document;
      2. e-mail delivery of a copy of the document in *.pdf format; or
      3. e-mail delivery of a message containing a link to an URL where an electronic copy of the document may be obtained.
    3. As far as reasonably possible, the electronic materials being served shall be indexed, organized, and labelled clearly and accurately in order to facilitate access by the recipient.
    4. In the case of e-mail delivery of a document under paragraph 12(b)(ii) or (iii) above, the serving party must take note of all e-mails bounced back or undelivered and must:
      1. serve the document upon the relevant parties in accordance with the Rules, or
      2. by letter addressed to the Judicial Administrator, propose a means by which the document may come to the attention of the relevant party, and seek the direction of the Court.
    5. Proof of e-service must describe the manner of e‑service and, in the case of e-mail delivery under paragraph 12(b)(ii) or (iii) above, must describe e-mails bounced back or undelivered.
    6. Where service of a document has failed because an e-mail is bounced back or is undelivered, the Registry may accept the document for filing if the serving party has otherwise complied with this protocol and all applicable provisions of the Rules that are consistent with this protocol. This is without prejudice to the right of any party intended to be served to seek a direction invalidating service.
  10. Pursuant to section 55 of the National Energy Board Act, the motion for leave will be determined by a single judge without delay and in a summary way and, unless a judge directs otherwise, without personal appearance.
  11. If leave is granted, the application for judicial review must be filed no later than 5 days after the date of the order granting leave. Note that item 1(1)(d) of Tariff A of the Rules imposes a $50 fee for the filing of a notice of application. Thereafter, all timelines in the Rules relating to applications for judicial review will apply.

“Karen Sharlow”
Acting Chief Justice


APPENDIX TO DIRECTION

National Energy Board Act
R.S.C., 1985, c. N-7

CERTIFICATES

52. (1) If the Board is of the opinion that an application for a certificate in respect of a pipeline is complete, it shall prepare and submit to the Minister, and make public, a report setting out

(a) its recommendation as to whether or not the certificate should be issued for all or any portion of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and

(b) regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the certificate will be subject if the Governor in Council were to direct the Board to issue the certificate, including terms or conditions relating to when the certificate or portions or provisions of it are to come into force.

(2) In making its recommendation, the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant, and may have regard to the following:

(a) the availability of oil, gas or any other commodity to the pipeline;

(b) the existence of markets, actual or potential;

(c) the economic feasibility of the pipeline;

(d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and

(e) any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.

(3) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the report must also set out the Board’s environmental assessment prepared under that Act in respect of that project.

(4) The report must be submitted to the Minister within the time limit specified by the Chairperson. The specified time limit must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.

(5) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.

(6) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (5) as soon as each of them is known.

(7) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.

(8) To ensure that the report is prepared and submitted in a timely manner, the Minister may, by order, issue a directive to the Chairperson that requires the Chairperson to

(a) specify under subsection (4) a time limit that is the same as the one specified by the Minister in the order;

(b) issue a directive under subsection 6(2.1), or take any measure under subsection 6(2.2), that is set out in the order; or

(c) issue a directive under subsection 6(2.1) that addresses a matter set out in the order.

(9) Orders made under subsection (7) are binding on the Board and those made under subsection (8) are binding on the Chairperson.

(10) A copy of each order made under subsection (8) must be published in the Canada Gazette within 15 days after it is made.

(11) Subject to sections 53 and 54, the Board’s report is final and conclusive.

53. (1) After the Board has submitted its report under section 52, the Governor in Council may, by order, refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration.

(2) The order may direct the Board to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the Board shall complete its reconsideration.

(3) The order is binding on the Board.

(4) A copy of the order must be published in the Canada Gazette within 15 days after it is made.

(5) The Board shall, before the expiry of the time limit specified in the order, if one was specified, reconsider its recommendation or any term or condition referred back to it, as the case may be, and prepare and submit to the Minister a report on its reconsideration.

(6) In the reconsideration report, the Board shall

(a) if its recommendation was referred back, either confirm the recommendation or set out a different recommendation; and

(b) if a term or condition was referred back, confirm the term or condition, state that it no longer supports it or replace it with another one.

(7) Regardless of what the Board sets out in the reconsideration report, the Board shall also set out in the report all the terms and conditions, that it considers necessary or desirable in the public interest, to which the certificate would be subject if the Governor in Council were to direct the Board to issue the certificate.

(8) Subject to section 54, the Board’s reconsideration report is final and conclusive.

(9) After the Board has submitted its report under subsection (5), the Governor in Council may, by order, refer the Board’s recommendation, or any of the terms or conditions, set out in the report, back to the Board for reconsideration. If it does so, subsections (2) to (8) apply.

54. (1) After the Board has submitted its report under section 52 or 53, the Governor in Council may, by order,

(a) direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report; or

(b) direct the Board to dismiss the application for a certificate.

(2) The order must set out the reasons for making the order.

(3) The order must be made within three months after the Board’s report under section 52 is submitted to the Minister. The Governor in Council may, on the recommendation of the Minister, by order, extend that time limit by any additional period or periods of time. If the Governor in Council makes an order under subsection 53(1) or (9), the period that is taken by the Board to complete its reconsideration and to report to the Minister is not to be included in the calculation of the time limit.

(4) Every order made under subsection (1) or (3) is final and conclusive and is binding on the Board.

(5) The Board shall comply with the order made under subsection (1) within seven days after the day on which it is made.

(6) A copy of the order made under subsection (1) must be published in the Canada Gazette within 15 days after it is made.

55. (1) Judicial review by the Federal Court of Appeal with respect to any order made under subsection 54(1) is commenced by making an application for leave to the Court.

(2) The following rules govern an application under subsection (1):

(a) the application must be filed in the Registry of the Federal Court of Appeal (“the Court”) within 15 days after the day on which the order is published in the Canada Gazette;

(b) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice; and

(c) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance.

55.1 (1) A failure by the Board to comply with subsection 52(1) or 53(5) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to submit the report, and anything done by it in relation to the application remains valid.

(2) Despite subsection 54(3), the Governor in Council may make an order under subsection 54(1) after the expiry of the time limit for doing so.

55.2 On an application for a certificate, the Board shall consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive.

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Date Modified: 2015-09-09