Litigating In the Dark: Providing Information to Interveners

Taylor Processing Inc. applied for various approvals from the Energy Resources Conservation Board to operate a co-stream project at its Harmattan plant. Inter Pipeline Fund and BP Canada Energy Company were interveners. Both the Fund and BP opposed Taylor’s application. The Board gave conditional approval to Taylor’s project. This appeal will determine whether the Board gave adequate reasons when assessing the evidence, and whether the Board breached its duty of procedural fairness.

Decision Below

BP and the Fund were permitted to submit information requests to Taylor. The responses from Taylor were inadequate and some answers indicated that Taylor did not have the required information. The Board declined to order Taylor to provide further information. Additionally, while the Fund relied upon experts who would provide viva voce evidence on the issue of gas supply in Alberta, Taylor choose to rely on industry reports as to gas supply, for which no viva voce evidence would be provided. Despite this discrepancy in the evidence, the Board determined that gas flows would be somewhere between the numbers indicated in Fund and Taylor reports.

The Fund sought leave to appeal the Board’s decision on the basis that the Board misconstrued the evidence and provided inadequate reasons. The Fund and BP both sought leave to appeal on the basis that the Board breached its duty of procedural fairness by effectively permitting Taylor to withhold information throughout the hearing (by not properly answering the information requests), and excluding cross-examination on Taylor’s reports (by permitting Taylor to forgo providing viva voce evidence). Leave to appeal was granted on these grounds.

Potential Significance

This appeal will provide some insight as to the level of explanation the Board must provide when weighing expert evidence in its decisions. Likewise, this decision will determine how much information interveners can expect in response to their information requests, and how much opportunity interveners must be given to challenge expert evidence. This decision may have a significant impact on how interveners can effectively participate in Alberta's regulatory process.

Case Information

Inter-Pipeline Fund v. Alberta (Energy Resources Conservation Board), 2011 ABCA 242

ABCA Docket Number:  1101-0006-AC and 1101-0008-AC

Date Leave Granted:  August 8, 2011

breach Energy Resources Conservation Board interveners procedural fairness

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