Trans Mountain Expansion Project: Burnaby's Latest Bid for Jurisdiction Unsuccessful

November 30, 2015

Written By Laura Gill, Mike Theroux and Aaron Rankin

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 completed.

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 centimetre, 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 decision.

If you have any questions about these issues and how they may affect your business, please contact Mike Theroux, Laura Gill or Aaron Rankin.

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