[2011] A.J. No. 579

2011 ABCA 159

Alberta Court of Appeal

C.M. Conrad J.A.

May 26, 2011

The Alberta Court of Appeal held that the Energy Resources Conservation Board's decision to reject expert evidence submitted after the deadline was a proper exercise of its discretion under the Energy Resources Conservation Act.

The applicant, Mike Judd, made an application pursuant to s. 41 of the Energy Resources Conservation Act, RSA 2000, c. E-10 seeking leave to appeal from a decision by the Energy Resources Conservation Board (the “Board”) which allowed the respondent, Shell Canada Ltd.’s application for an exploratory well and fuel gas compressor and denied its applications for a gas battery, fuel gas pipeline and production pipeline. The applicant took the position that the Board failed to exercise its jurisdiction or give legal effect to the legal status of the grizzly bear as an endangered species, failed to provide adequate reasons, failed to provide the applicant with procedural fairness and failed to satisfy itself that the respondent’s mineral surface lease met current regulatory requirements.

The court considered whether the applicant, in seeking leave to appeal an ERCB decision, had demonstrated that a question of law or jurisdiction raised a serious arguable point. The court applied a standard of correctness to the questions of breach of natural justice and adequacy of reasons, and a standard of reasonableness to all remaining questions.

The applicant argued that the ERCB failed to properly exercise its jurisdiction by refusing to hear expert evidence, which had been submitted past the deadline for filing of material set by the ERCB, regarding the existence of a bear den on the applicant’s property. The court held that the ERCB’s decision to exclude that evidence was based on fundamental fairness and was an exercise of its discretion rather than an extricable error of law.

Further, as the evidence did not suggest that the bear den would be destroyed by the respondent’s well and the ERCB considered the issue of the bear designation as a threatened species, the applicant failed to demonstrate an error of law or jurisdiction on the ERCB’s part, nor that the ERCB’s reasons were inadequate. On the issue of procedural fairness, the court held that allowing the applicant’s expert evidence without affording Shell the opportunity to investigate and rebut would have been fundamentally unfair. Given the ERCB’s broad powers to control its own processes, it was not obligated to accept late evidence and did not constitute an arguable issue of law. The applicant’s remaining argument regarding the land’s mineral lease was held to be irrelevant to the leave application. The application for leave to appeal was denied.