Court Challenges to National Energy Board or Governor in Council Decisions

The NEB operates within a system of checks and balances. Our decisions are subject to independent and impartial judicial oversight, generally through the Federal Court of Appeal and Supreme Court of Canada, and the Board is bound to act in accordance with the court’s decisions.

As part of our commitment to transparency, we share information about challenges to the NEB’s decisions and recommendations to the Governor in Council in the database below. The purpose is to provide Canadians with up-to-date information about the status of these legal challenges, regardless of the outcome.

The following information includes the status of litigation, appeals, and judicial reviews related to NEB or Governor in Council decisions. Where possible, the database provides a link to an external third-party controlled website, such as the Court database or an online version of the decision. It does not include civil claims or judicial reviews of administrative decisions. The database is searchable by project name, parties or filing date.

Project Name Description of Challenge Parties Court Filing Date Court and Docket Number Summary
Trans Mountain Detailed Route Hearing – City of Burnaby – Segment 7 (MH-033-2017) [Folder 3324466] Application to judicially review the Board’s decision [Filing A91505] dated 26 April 2018 approving the route. City of Burnaby v. Trans Mountain Pipeline ULC 2018-05-24 Federal Court of Appeal
A-152-18
The applicant applied to judicially review the Board’s decision to approve the route and construction methods. Issues raised include weighing of evidence and reasonableness of findings and determinations.
TransCanada PipeLines Ltd. Station 130 C4 Unit Addition [Folder 3350724] Motion for Leave to Appeal the Board Decision [Filing A91530] approving the Project. Block 41 Landowner Group v. TransCanada PipeLines Ltd. et al. 2018-05-16 Federal Court of Appeal
18-A-19
The applicant sought Leave to Appeal the Board’s decision to approve the Project. Issues raised are acoustic implications of the proposed work and its effect on the land owned by Block 41.

The Federal Court of Appeal denied the Motion for Leave to Appeal on 29 June 2018.
Quebec-New Hampshire Interconnection
[Folder 3119846]
Application to judicially review the Board’s decision to issue Permit EP-303 and grant a variance to Certificate EC-III-021, approving the Project [Filing A90412] Conseil des Innus de Pessamit v. National Energy Board, Attorney General of Canada, Hydro-Quebec 2018-04-04 Federal Court of Appeal
A-110-18
The applicant applied to judicially review the Board’s decision to approve the Project. Issues raised include the duty to consult and the assessment of environmental effects of exporting electricity.
Trans-Mountain Expansion Project
(OH-001-2014)
Notice of Motion seeking leave to appeal Board’s Order [Filing A88474] City of Burnaby v. Trans Mountain ULC et al. 2018-02-16 Federal Court of Appeal
18-A-9

Supreme Court of Canada
38104
The applicant filed a notice of motion to appeal the Board’s order. Issues raised include multiple questions of law and/or jurisdiction.

The Federal Court of Appeal dismissed the application for leave to appeal on 23 March 2018.

The City of Burnaby filed an application for Leave to Appeal with the SCC on 9 May 2018.

The SCC denied the application on 23 August 2018.
Trans-Mountain Expansion Project
(OH-001-2014)
Notice of Motion seeking leave to appeal Board’s Order [Filing A88474] Attorney General of British Columbia v. Trans Mountain ULC et al. 2018-02-16 Federal Court of Appeal
18-A-11
The applicant filed a notice of motion to appeal the Board’s order. Issue raised is an alleged error of law in respect of the Board’s interpretation and application of interjurisdictional immunity doctrine.

The Federal Court of Appeal dismissed the application for leave to appeal on 23 March 2018.

Consolidated Trans Mountain Expansion Project Judicial Reviews

Trans Mountain Expansion (TMX) Project
(OH-001-2014)

Nine applicants applied individually for leave to judicially review GIC’s Order in Council PC 2016-1069 (OIC), approving the TMX Project. Leave was granted on 22 February 2017. On 9 March 2017, the Court ordered the judicial review proceedings be consolidated under file number A-78-17. The 7 day oral hearing concluded in Vancouver at the Federal Court of Appeal on 13 October 2017. On 30 August 2018, the Federal Court of Appeal granted the consolidated judicial reviews, quashed the Order in Council and remitted the matter back to Governor in Council for prompt redetermination. The Court found that the Board erred in defining the scope of the Project in its CEAA assessment under review not to include Project-related tanker traffic and that the Board’s assessment of impacts associated with tanker traffic under the NEB Act was not adequate. The Court further found that Canada failed to fulfill its duty to consult owed to Indigenous peoples. Other flaws asserted against the Board’s process and findings were found to be without merit.

Parties Court Filing Date Court and Docket Number Summary
Tsleil-Waututh Nation v. National Energy Board, Trans Mountain Pipeline ULC and Attorney General of Canada 2017-01-13 Federal Court of Appeal
A-78-17
LEAD FILE
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights and compliance with CEAA 2012.
Aitchelitz et al  v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-28 Federal Court of Appeal
A-86-17
Issues raised include procedural fairness and the Crown’s duty to consult and accommodate the applicants’ constitutional rights.
Upper Nicola Band v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-28 Federal Court of Appeal
A-74-17
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Squamish Nation et al v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-23 Federal Court of Appeal
A-77-17
Issues raised include assessment of impacts and the Crown’s duty to consult and accommodate the applicants’ constitutional rights.
Coldwater Indian Band v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-23 Federal Court of Appeal
A-76-17
Issues raised include assessment of impacts and the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Chief Ron Ignace, Stk'emlupsemc Te Secwepemc Nation  et al v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-22 Federal Court of Appeal
A-68-17
Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights and cumulative effects.
City of Burnaby v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-20 Federal Court of Appeal
A-75-17
Issues raised include the validity of the OIC, assessment of impacts and alternative means, and procedural fairness.
Raincoast Conservation Foundation & Living Oceans Society v. Trans Mountain Pipeline ULC and Attorney General of Canada 2016-12-19 Federal Court of Appeal
A-84-17
Issues raised include the validity of the OIC, and assessment of impacts under CEAA 2012 and SARA.

Seven applicants applied individually for judicial review of the National Energy Board’s Recommendation Report dated 19 May 2016 [Filing A77045]. On 22 February 2017, the Court adjourned the seven judicial reviews of the NEB Report, for consideration by the assigned Panel of the nine leave applications granted. On 9 March 2017, the Court ordered the judicial review proceedings be consolidated under file number A-78-17. On 28 April 2017, the applicants, Kwantlen First Nation, Cheam First Nation and Chawathil First Nation, filed a Notice of Discontinuance, Federal Court of Appeal A-230-16. The 7 day oral hearing concluded in Vancouver at the Federal Court of Appeal on 13 October 2017. The Federal Court of Appeal dismissed the 6 judicial reviews on 30 August 2018.

Parties Court Filing Date Court and Docket Number Summary
Tsleil-Waututh Nation v. National Energy Board, Trans Mountain Pipeline ULC and Attorney General of Canada 2016-06-20 Federal Court of Appeal
A-232-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.
City of Vancouver v. The Attorney General of Canada, National Energy Board and Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-225-16
Issues raised include seeking to prohibit the GIC and the Board from making any decisions, issuing any orders or taking any other actions to enable the Project to proceed until the requirements of the NEB Act and CEAA 2012 have been met.
City of Burnaby v. Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-224-16
Issues raised included procedural fairness and/or natural justice matters and the public interest determination and seeking to quash the Board’s Recommendation Report.
Coldwater Indian Band and others v. Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-223-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.
Raincoast Conservation Foundation and Living Oceans Society v. Attorney General of Canada and Trans Mountain Pipeline ULC 2016-06-17 Federal Court of Appeal
A-218-16
Issues raised include seeking to prohibit the GIC and the Board from making any decision, issuing any orders or taking any other actions to enable the Project to proceed until the requirements of the NEB Act, CEAA 2012 and SARA have been met.
The Squamish Nation (also known as the Squamish Indian Band) et al v. Trans Mountain Pipeline ULC 2016-06-16 Federal Court of Appeal
A-217-16
Issues raised included the Crown’s duty to consult and accommodate the applicants’ constitutional rights and seeking, among other things, to quash the Board’s Recommendation Report.

Other Court Challenges

Project Name Description of Challenge Parties Court Filing Date Court and Docket Number Summary
ITC Lake Erie Connector IPL
(EH-001-2015)
Application to judicially review GIC’s Order in Council, PC 2017-0808 approving the project Mississaugas of the New Credit First Nation v. Attorney General of Canada and ITC Lake Erie Connector LLC 2017-07-24 Federal Court
T-1385-17
The applicant applied to judicially review the GIC’s approval of the ITC Lake Erie Connector project. Issues raised include the Crown’s duty to consult and accommodate the applicant’s constitutional rights.
Enbridge Pipelines Inc. Line 3 Replacement Program
(OH-002-2015)
Application for leave to judicially review GIC’s Order in Council PC 2016-1048, approving the Enbridge Line 3 Replacement Program Assembly of Manitoba Chiefs v. Attorney General of Canada and Enbridge Pipelines Inc. 2017-02-03 Federal Court of Appeal
A-36-17
The applicants applied to judicially review GIC’s decision to approve this Project. Issues raised included GIC exceeding its jurisdiction in making its decision and acting inconsistently with its responsibilities under the honour of the Crown and procedural fairness.

The applicant filed a Notice of Discontinuance on 26 October 2017.
TCPL Mainline operations and maintenance activity Statement of Claim Aroland First Nation and Ginoogaming First Nation v. National Energy Board, TransCanada PipeLines Limited and Attorney General of Canada 2017-01-05 Ont. Ct of Justice
CV-17-567115
The applicants seek, among other things, injunctive and declaratory relief and damages for alleged breach of constitutional obligations to consult and accommodate related to TCPL’s plans to conduct integrity digs and other work in NW Ontario.

The Ontario Superior Court dismissed the plaintiffs’ partial summary judgment motion on 30 July 2018. The Court concluded that the motion cannot be fairly and justly decided using the summary judgment process and would require a full trial.
2017 NGTL System Expansion Project
(GH-002-2015)
Application to judicially review GIC’s Order in Council PC 2016-0962 approving the project. Bigstone Cree Nation v. Nova Gas Transmission Ltd. and Canada (A-G) 2016-12-07

2017-01-26
Federal Court of Appeal
A-31-17
The applicants applied to judicially review the decision to approve the project. Issues raised include the Crown’s duty to consult and accommodate.

Leave to judicially review was granted and the application was filed on 26 January 2017.

The NEB was granted leave to intervene on 20 March 2017.

The FCA dismissed the judicial review on 8 May 2018. See 2018 FCA 89.
Trans Canada Energy East Project
(OH-002-2016)
Challenge to the Board's 21 March 2016 decision [Filing A76011] with respect to the French version of the consolidated application of Energy East Centre Québécois du droit de l’environnement, André Bossinotte, Réjean Beauparlant, Guy Provost and Stéphane Sansfaçon v. Office National de L’énergie et le Procureur Général du Canada 2016-04-20 Federal Court
A-125-16
The applicants filed a notice of application for judicial review seeking a determination of the applicability of the Canadian Charter of Rights and Freedoms and the Official Languages Act to the French version of Energy East’s consolidated application.

The applicants filed a Notice of Discontinuance on 6 December 2017.

Court Challenges to National Energy Board or Governor in Council Decisions Archive

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