Decision Date: June 15, 2015

Panel: Alan Andison

Keywords: Oil and Gas Activities Act – s. 72(2); Administrative Tribunals Act – s. 31; preliminary decision; standing; jurisdiction; summary dismissal; pipeline; permit

Olaf and Francis Jorgensen appealed a February 23, 2015 decision of the Oil and Gas Commission (“Commission”) to issue a permit that authorizes Encana Corporation (“Encana”) to construct and operate a pipeline. The pipeline crosses the Appellants’ property and their neighbours’ property, located northwest of Dawson Creek. The Appellants appealed on the basis that the pipeline route through their property should be realigned to prevent a portion of their property from being “marginalized.” The Appellants’ neighbours also appealed the permit. The two appeals were scheduled to be heard together.

Before the appeals were heard, Encana applied to the Tribunal for an order summarily dismissing the Appellants’ appeal, pursuant to section 31 of the Administrative Tribunals Act. Encana sought summary dismissal on the basis that the Appellants did not meet the requirements of section 92(2) of the Oil and Gas Activities Act, which provides that a land owner may appeal only on the basis that the Commission’s decision was made without due regard to a submission previously made by the land owner, or a written consultation report submitted by the permit holder. Encana had notified the Appellants of the proposed pipeline route in an October 8, 2013 letter, which invited them to provide written comments to the Commission within 21 days, but the Appellants provided no written submission to the Commission regarding the proposal, and their grounds for appeal did not allege that the Commission failed to give due regard to any submission they had provided. In addition, the Commission had considered Encana’s December 2014 consultation report, which stated that the Appellants had no concerns, before the Commission issued the permit.

The Appellants opposed Encana’s application for summary dismissal. They provided a list of their communications with Encana or its agents between 2012 and March 2015. The list showed two telephone calls in 2012, and several meetings between June 2013 and March 2015. The Appellants submitted that, at every meeting, they expressed opposition to the proposed location of the pipeline on their property.

The Commission took no position on Encana’s application.

The Tribunal found that the Appellants did not provide a written submission to Encana or the Commission objecting to the proposed pipeline, before the permit was issued. However, the Tribunal found that Encana may have been obligated to include in its consultation report any oral objections that the Appellants had expressed to it. Encana met with the Appellants three times before the permit was issued and after Encana’s provided written notice of its proposal to the Appellants. However, there was no written minutes or personal notes from those meetings, and the parties’ evidence was conflicting regarding what was stated at the meetings: the Appellants claimed that they had expressed their objection to the pipeline route at every meeting, whereas Encana claimed that the Appellants had expressed no concerns about the pipeline route over their lands but had refused to sign a right-of-way agreement as long as their neighbours also objected to the pipeline.

Given that the application for summary dismissal was conducted in writing, and there were no personal notes, minutes, or sworn affidavit evidence regarding what was discussed at the meetings between Encana and the Appellants, the Tribunal found that it was unable to assess the credibility of the parties’ respective versions of what was said at the meetings. Further, the parties did not address whether Encana had a legal duty, as the permit applicant, to include in its consultation report any verbal objections that may have been expressed by the Appellants. The Tribunal held that, in deciding a preliminary application for summary dismissal, an appellant’s right of appeal should only be taken away in clear cases. The Tribunal concluded that, in the present case, the information before was insufficient to decide the threshold questions of jurisdiction raised by the application, but these questions could be addressed at an oral hearing on the merits of the appeal. In these circumstances, the Tribunal decided that it would be inappropriate to summarily dismiss the Appellants’ appeal.

Accordingly, Encana’s application for summary dismissal was denied.