Van Giessen v. Montana Alberta Tie Ltd., 2011 ABQB 219

Court of Queen ’ s Bench of Alberta Citation: Van Giessen v. Montana Alberta Tie Ltd., 2011 ABQB 219 Date: 20110405 Docket: 1006 01041 Registry: Lethbridge Between: Wayne Van Giessen, Gerda Van Giessen, Van Giessen Growers Inc., Dianne Sincennes, Norman Sincennes and Rolling Prairie Farms Applicants - and - Montana Alberta Tie Ltd. and the Surface Rights Board Respondents - and - Attorney General of Alberta Intervener _______________________________________________________ Oral Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________

[1] The Attorney General of Alberta applies to strike the three-pronged application brought by several Southern Albertalandowners against the Alberta Surface Rights Board and Montana Alberta Tie Ltd. (MATL). The landowners’ Originating Applicationconsists of an application for Judicial Review whereby it asks this Court for an Order that the Alberta Surface Rights Board has nojurisdiction to grant a Right of Entry Order. The landowners in their Originating Application ask the Court for the following remedy: 1.

A Declaration that the Surface Rights Board has no jurisdiction to grant Right of Entry Orders on behalf of Montana Alberta TieLtd. (MATL) The reason the Surface Rights Board lacks jurisdiction, argues the landowners, is because the process whereby the National EnergyBoard Act has been interpreted as a statute is incorrect, as the Lieutenant Governor in Council and the Lieutenant Governor has erred indesignating both the Alberta Energy and Utilities Board, and the Surface Rights Board, at the same time.

This incorrect designation bythe Lieutenant Governor is a misinterpretation of the legislation, resulting in an inappropriate process. This is the improper delegationargument. 2. The Surface Rights Board also fails to have jurisdiction, according to the landowners, because as a provincial tribunal it has nojurisdiction over the powerline in question, as it is an international powerline, and the Surface Rights Board can only deal withpowerlines that are “wholly situate within the Province”. 3.

The final remedy requested by the landowners, if their first two requests fail, is that if the court is to find that the Surface RightsBoard has jurisdiction, the manner in which the Surface Rights Board has allowed MATL to enter the land of the landowners through theRight of Entry Orders constitutes an invasion of their privacy rights, and should thereby be classified as an unreasonable search andseizure contrary to

Section 8 of the Charter of Rights and Freedoms. [2] The Attorney General of Alberta applies to strike the landowners’ application in its entirety pursuant to Rule 3.68. The Rulestates: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) that a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. [3] The focus of the Attorney General’s application to strike is Rule 3.68(2)(b), in that the landowners’ Originating Application“discloses no reasonable claim”. All three aspects of the landowners’ application disclose no reasonable claim as the law is clear on allthree points and it is against the Applicants.

The Attorney General of Alberta is joined in its application to strike by Montana Alberta TieLtd. [4] The standard to strike a pleading that discloses no reasonable claim can be found under Rule 129 of the former Rules of Court. The Alberta Court of Appeal in Tottrup v. Alberta (Minister of Environment) (2000), 2000 ABCA 121 , 186 D.L.R. (4th)

226 at 234 states: The principles governing an application to strike a statement of claim for failure to disclose a cause of action are relatively settled. Inbrief, the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether those factsdisclose a cause of action in law. The test set out by the Supreme Court in Hunt v.

Carey Canada Inc. (SCC), [1990] 2S.C.R. 959 at 980, is whether it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action.Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to a broad reading of thepleadings. [5] Opposing this application, the landowners argue that it is not an easy test for the Attorney General of Alberta to meet.Specifically, the landowners rely on the more recent Alberta Court of Appeal decision in Rewega v.

Rewega 2005 ABCA 365, where atparagraph 9 the unanimous panel states: The test for striking pleadings under Rule 129(1)(

a) is stringent. The flaw must be obvious and must be beyond doubt. The claim must behopeless and the court should be extremely cautious in striking pleadings on this basis. If a claim is novel or dubious it cannot be struckout and where the pleadings concern different

interpretations of the statute if there is any doubt striking out is not appropriate. [6] A detailed analysis of the landowners arguments is warranted in dealing with the Attorney General’s application. I Improper Delegation Argument [7] MATL has applied for and been granted regulatory approval to construct and operate the 130-km Canadian portion of a 338-kilometre international powerline from a substation near Lethbridge, Alberta to a location near Great Falls, Montana. The applicationbefore the National Energy Board pursuant to the National Energy Board Act R.S.C. 1985, c.

N-7 was for a permit, and under the permitprocess the National Energy Board deals with certain aspects of the application and delegates matters relative to provincial regulatorymatters to the province. [8] The National Energy Board Act has a specific

section that provides for a delegation of authority to the province as follows: Provincial Regulatory Agency 58.17 The lieutenant governor in council of a province may designate as the provincial regulatory agency the lieutenant governor incouncil of the province, a provincial minister of the Crown or any other person or a board, commission or other tribunal. Application 58.18 Sections 58.2 and 58.21 apply only in respect of those portions of international power lines that are within a province in which aprovincial regulatory agency is designated under

section 58.17 but do not apply in the case of international power lines in respect ofwhich an election is filed under

section 58.23. Definition of Provincial Laws 58.19 For the purposes of sections 58.2, 58.21 and 58.22, a law of a province is in relation to lines for the transmission of electricityfrom a place in the province to another place in the province if the law is in relation to any of the following matters: (

a) the determination of their location or detailed route; (

b) the acquisition of land required for the purposes of those lines, including its acquisition by expropriation, the power to so acquireland and the procedure for so acquiring it;

(

c) assessments of their impact on the environment; (

d) the protection of the environment against, and the mitigation of the effects on the environment of, those lines; or (

e) their construction and operation and the procedure to be followed in abandoning their operation. 1990, c. 7, s 23 . Application of Provincial Laws 58.2 The laws from time to time in force in a province in relation to lines for the transmission of electricity from a place in the province to another place in that province apply in respect of those portions of international power lines that are within that province. 1990, c. 7, s. 23 Incorporation of Provincial Functions 58.21 A provincial regulatory agency designated under

section 58.17 has, in respect of those portions of international power lines that are within that province, the powers and duties that it has under the laws of the province in respect of lines for the transmission of electricity from a place in the province to another place in that province, including a power or duty to refuse to approve any matter or thing for which the approval of the agency is required, even though the result of the refusal is that the line cannot be constructed or operated. 1990, c. 7, s. 23 . Paramountcy 58.22 Terms and conditions of permits and certificates and Acts of Parliament of general application are, for the purpose of applying the laws of a province under

section 58.2 or 58.21, paramount to those laws. 1990, c. 7, s. 23 . [ 9 ] It is the argument of the landowners that s. 58.17 of the National Energy Board Act has been wrongly interpreted by the Lieutenant Governor in Council for Alberta in appointing both the Alberta Energy and Utilities Board, by way of Order in Council 14/2007 dated January 23, 2007, and the Surface Rights Board, by Order in Council 435/2008 on September 3, 2008. [ 10 ] The landowners argue that s. 58.17 of the National Energy Board Act should be interpreted as allowing the province to appoint only one provincial agency to apply provincial law. The use of the singular in the

section to “the provincial regulatory agency” means “the lieutenant governor in council of the province, a provincial minister of the crown or any other person or a board, commission or other tribunal”, and in particular the reference to “a board, commission or other tribunal” can clearly only mean one body. Because of this misinterpretation of s. 58.17 of the National Energy Board Act, the Lieutenant Governor in Council has no proper delegated authority from Parliament to appoint more than one provincial regulatory agency.

Consequently, the landowners argue the Order in Council relating to the Surface Rights Board, namely, Order in Council 435/2008 of September 3, 2008, has no proper legislative authority. [ 11 ] The Attorney General for Alberta argues that this argument by the landowners cannot be successful in that, under our federal system, the federal government, which has exclusive authority to regulate international powerlines, can delegate to a province the right to

regulate within its own sphere of jurisdiction such as in the area of property and civil rights. Furthermore, the Attorney General arguesthat on pure statutory

interpretation grounds the landowners are incorrect in their

interpretation of s. 58.17 of the National Energy BoardAct. When one looks at the following sections of the

Interpretation Act R.S.C. 1985, c. I-21, it becomes clear that the province canappoint more than one entity. 8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights inCanada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province’s rules, principles orconcepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in theprovince at the time the enactment is being applied. 12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensuresthe attainment of its objects. 31(2) Where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as arenecessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given. 31(3) Where a power is conferred or a duty imposed, the power may be exercised and the duty shall be performed from time to time asoccasion requires. 33(3) Words in the singular include the plural, and words in the plural include the singular. [12] Given these sections of the

Interpretation Act, the Attorney General argues that the Lieutenant Governor has the properauthority it needs to designate one or more regulatory agencies, as it has done. [13] Because this

interpretation is obvious, the landowners have no possibility of success on this argument and therefore “noreasonable claim”, and the Attorney General asserts that the landowners’ claim should be struck under Rule 3.68. [14] In addition, MATL argues in this application that this aspect of the landowners’ claim fails because it is actually a collateralattack on the Lieutenant Governor’s Order in Council No. 435/2008 itself. Collateral attack has been recently discussed by the SupremeCourt of Canada in Garland v. Consumers’ Gas Co., 2004 SCC 25, at paragraph 71: ...

The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal (seeToronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 (S.C.C.); Donald J. Lange, The Doctrine of Res Judicata inCanada (Markham, Ont.: Butterworths, 2000), at pp. 369-370).

Generally, it is invoked where the party is attempting to challenge thevalidity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedingswhen that party has not used the direct attack procedures that were open to it (i.e., appeal or judicial review). In R v.

Wilson, (SCC), [1983] 2 S.C.R. 594 (S.C.C.), at p. 599, this Court described the rule against collateral attack as follows: It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding andconclusive unless it is set aside on appeal or lawfully quashed.

It is also well settled in the authorities that such an order may not beattacked collaterally - and a collateral attack may be described as an attack made in proceedings other than those whose specific object isthe reversal, variation, or nullification of the order or judgment. [15] MATL argues that the landowners’ argument with respect to the Surface Rights Board is clearly an attack on the Order inCouncil. They have not challenged the Order in Council, nor have they named the Lieutenant Governor in Council.

Accordingly, therelevant requests for relief by the landowners in its application should be struck under Rule 3.68. [16] On this issue I agree with both the Attorney General and MATL that the claim of the landowners of improper delegation isbound to fail and this aspect of the landowners’ application discloses no reasonable claim.

II The International Powerline is not Wholly Within the Province of Alberta [17] The landowners argue that the provincial legislation which purports to regulate the MATL line is found in s. 1(1)(

o) and s.37(1) of the Hydro and Electric Energy Act, R.S.A. 2000, c. H-16 which states: 1(1)(o) “transmission line” means a system or arrangement of lines of wire or other conductors and transformation equipment, wholly inAlberta, whereby electric energy, however produced, is transmitted in bulk, and includes (

i) transmission circuits composed of the conductors that form the minimum set required to so transmit electric energy, (ii) insulating and supporting structures, (iii) substations, (iv) operational and control devices, and (

v) all property of any kind used for the purpose of, or in connection with, or incidental to, the operation of the transmission line, but does not include a power plant or an electric distribution system. 37(1) When an operator requires an estate or interest in land, other than a patented land as defined in the Metis Settlements Act, for thepurposes of a power plant or a transmission line, the estate or interest may be acquired in land owned by the Crown or by any otherperson (

a) by negotiation with the owner, (

b) by expropriation under the Expropriation Act, in the case of a power plant containing an isolated generating unit as defined in theElectric Utilities Act, or (

c) by proceedings under the Surface Rights Act, in the case of a transmission line. [18] The landowners argue that the MATL line is obviously an “international powerline” as defined by the National Energy Actand therefore under the Constitution Act, 1867 s. 92(10), is an excluded work from the enumerated powers of the provincial government.Numerous constitutional authorities have been cited by the landowners in support of their proposition concerning the limits of “whollywithin the province”.

The proposed line of MATL, because it is an “international powerline” and is not “wholly in Alberta”, is not a lineover which the province of Alberta’s Surface Rights Board, as a provincial tribunal, has any jurisdiction. Parliament, through theNational Energy Board Act, has, in effect, incorporated provincial law into its legislative scheme. Provinces cannot expropriate orauthorize expropriation for an “international work”. Further, say the landowners, Parliament has not fully delegated its authority toexpropriate to any provincial agency in the legislative scheme of the National Energy Board Act.

To support their proposition that thereis a gap in this legislative scheme, the landowners argue the case of Exported Natural Gas Tax (SCC), [1982] 1 S.C.R.1004 at 1053-4: The power to expropriate or appropriate must be determined in conjunction with the discharge of other functions under the Constitutionby one level of government or the other.

Expropriation by either level of government without legislative root in the Constitution is not alegal right and cannot take place legally. [19] The Attorney General of Alberta and counsel for MATL argue that the definition of “transmission line” in the Hydro andElectric Energy Act is constitutionally valid as it relates to a matter within the province of Alberta under s. 92(13), property and civilrights in the province, and on its own, cannot purport to affect or impact interprovincial or international transmission lines, which arewithin the perview of the federal government under the Constitutional Act s. 91(2), namely, the regulation of trade and commerce.However, the National Energy Board Act, properly interpreted, says the Attorney General and MATL, contains a tapestry of federalismat work which includes s. 58.2: 58.2 The laws from time to time in force in a province in relation to lines for the transmission of electricity from a place in the provinceto another place in that province apply in respect of those portions of international power lines that are within that province.

[20] Therefore, only the segment of the international transmission line that is “within” the province of Alberta can be regulated byprovincial legislation and tribunals. The province is able to maintain its properly-constituted provincial power for an internationaltransmission line by virtue of s. 58.2 of the National Energy Board Act. [21] This contention is supported by the purposes and objects of the National Energy Board Act, which were specifically drafted tofit into the scheme of federalism. In interpreting this legislative scheme, the National Energy Board Act should “be given such fair, largeand liberal construction and

interpretation as best ensures the attainment of its objects”. The

interpretation of the landowners would leadto an absurdity, say MATL and the Attorney General. Specifically, one needs only to look at the purpose of the National Energy BoardAct as proposed by the Minister and quoted by the Alberta Court of Appeal at paragraph 7 of Sincennes v. Alberta (Energy and UtilitiesBoard), 2009 ABCA 167, 2009 CarswellAlta 619: ...[T]he basic principle governing the new policies that there should be no unwarranted duplication of federal and provincial regulations.

He also explained certain intended changes: In addition to those changes regarding the procedure for the authorization of exports and power lines, there will also be changes in theway that the detailed routing of international power lines is determined. The National Energy Board will, in all cases, authorize thegeneral corridor through which the line will pass.

The precise location of the line within this corridor will then be determined byprovincial regulatory procedures and any expropriation that may be necessary will also be carried out under provincial laws. (Emphasis added) (House of Commons Debates, No. 34 (June 26, 1989) at 3583-3584, Hon. Jean. J. Charest). [22] I am of the view that the landowners’ position on this point does lead to an absurdity. There is no “legislative gap”. It isclearly part of the federal object to have included the provinces within their sphere of authority. I do not believe that how one interpretsthis overall scheme is debatable.

Given that the result of the landowners’

interpretation would lead to an absurd conclusion, and there isobviously no constitutional impediment to this legislative scheme, the argument of the landowners cannot proceed. Accordingly, inreferring to Rewega there is no doubt in my mind that while the claim is “novel”, its path of statutory

interpretation is clearly wrong. Iagree that the landowners’ claim on this point does not disclose a reasonable claim and therefore must fail as well. III MATL’s Unreasonable Search and Seizure of the Landowners’ Property [23] The landowners acknowledge that the Canadian Charter of Rights and Freedoms in no way or fashion protects propertyrights. They insist that this aspect of their application is far more nuanced than a simple claim that somehow the right to property shouldbe protected by the Charter. [24] The landowners’ argument is essentially as follows: 1. Section 14(1)(4)(

a) of the Hydro and Electric Energy Act, authorizes MATL, through an agent of the state, the right to enter on toprivate property for the express purpose of “searching” that property for the purpose of obtaining private information about the property.

Section 14 of the Surface Rights Act then empowers someone in MATL’s position to use that private information for the expresspurpose of seizing the land (by eventual expropriation through a Right of Entry Order) from the landowners. 3. This legislative scheme flies in the face of the landowners’ reasonable expectation of privacy. The landowners cite the authorityof R. v. Edwards (SCC), [1996] 1 S.C.R. 128 at paragraph 45, as to the factors that support the landowners’ reasonableexpectation of privacy:

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. 4. This legislative scheme, which allows MATL to proceed in the fashion that they have, is an intrusion upon the landowners’seclusion or solitude and into their private affairs, and is a clear breach of their “right to be secure against unreasonable search or seizure”protected by

Section 8 of the Charter of Rights and Freedoms. [25] The response of the Attorney General for Alberta and counsel for MATL is that a Right of Entry Order under

Section 14 ofthe Surface Rights Act is not a “seizure” that attracts the application of the Charter. Further, the privacy rights protected under

Section 8of the Charter of Rights and Freedoms only arise in the context of an “administrative or criminal investigation”. Authority for the firstproposition can be found in the case of Becker v.

Alberta (1983), 45 A.R. 37, affirmed by the Alberta Court of Appeal at Becker v.Alberta (1983) 1983 ABCA 161 , 45 A.R. 36, which held that: It is our view that the protection afforded by s. 8 does not extend to the taking of real property by expropriation. [26] Authority for the second proposition is found in the Supreme Court of Canada’s decision of Quebec (Attorney General) v.Laroche 2002 SCC 72 , [2002] 3 S.C.R. 708 at paragraph 53: ...Charter protections against unreasonable seizure should not apply to governmental actions merely because those actions interfere withproperty rights.

Specifically, where property is taken by governmental action for reasons other than administrative or criminalinvestigation a “seizure” under the Charter has not occurred. A number of cases illustrate this view of seizure.

A detention of property, initself, does not amount to a seizure for Charter purposes - there must be a superadded impact upon privacy rights occurring in the contextof administrative or criminal investigation. [27] In oral argument counsel for the landowners made the point that because some of the landowners grew potatoes they receivedno Charter protection from what they view as an unjustified search and seizure of their property. However, if they grew pot they wouldhave the full panoply of s. 8 Charter protection under the current case authorities.

I am not sure the landowners’ challenges can bereduced to such a simple either/or dichotomy, however, there does seem to be a gap in the protection of the landowners’ property rights. [28] This argument is, without a doubt, the landowners’ most persuasive argument.

It has two things going against it, however.First, the authorities all go contrary to the logic of the argument, and secondly, notwithstanding counsel for the landowners’ protestationto the contrary, for the argument to be successful it must have property rights included in the Charter of Rights and Freedoms.Unfortunately for the landowners, those who drafted the Charter of Rights and Freedoms in 1981 consciously chose to omit a guaranteeof property rights in the Charter. [29] As a constitutional Bill of Rights Canada’s Charter of Rights has a glaring omission by failing to recognize property rights.Canada’s 1960 Bill of Rights affirms the right of individuals to the enjoyment of property and the right not to be deprived thereof exceptby due process of law.

The right to own property was also included in the English Bill of Rights in 1689 and indeed, in 1948, Canada

signed the United Nations Universal Declaration of Human Rights which included

Article 17 which reads: Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property. [30] Indeed, prior to the Charter coming into force, the Supreme Court of Canada, in Harrison v. Carswell (1975) (SCC), 62 D.L.R. (3d) 68 at 83, commented on property rights in Canadian law: Anglo-Canadian jurisprudence has traditionally recognized as a fundamental freedom the right of the individual to the enjoyment ofproperty and the right not to be deprived thereof, of any interest therein, save by due process of law. [31] There is obviously a rich tradition of property rights in our Anglo-Canadian jurisprudence. Further,

Section 26 of the Charterof Rights and Freedoms states: The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights orfreedoms that exist in Canada. [32] This rich history of property rights was not argued before me.

Until the lacuna of property rights in the Charter is corrected,vulnerable landowners will need to build on the rich history of common law property rights that appear to be guaranteed by s. 26 of theCharter. [33] That argument was not made before me and the argument that was made is clearly bound to fail in light of the authorities. [34] Accordingly, this third argument of the landowners must also fail.

This Court is therefore compelled to accede to the entireapplication of the Attorney General of Alberta and strike all three aspects of the claim raised in the Originating Application of thelandowners, as it is “plain and obvious” that these claims will not succeed. [35] In conclusion, the Intervener, Attorney General of Alberta, is successful in striking the landowners’ application for JudicialReview filed on December 22, 2010, and their entire motion filed on January 17, 2011.

Accordingly, the application in this same mattermade by Montana Alberta Tie Ltd. to have the landowners’ affidavits struck will not proceed as the matter is now moot. [36] In view of the success of the Attorney General’s application I am also adopting his request relative to costs in paragraph 1(g)of his motion. No costs are payable by or to any party to this application. [37] Thank you. Heard on the 24th day of March, 2011. Dated at Lethbridge, Alberta this 30th day of March, 2011.

D.K. Miller J.C.Q.B.A. Appearances: Scott Stenbeck Donald F. Bur Stenbeck Law Office for the Applicants Lars Olthafer Michael Dixon Blakes LLP for the Respondents MATL Karen Sinclair-Santos Surface Rights Board & Land Compensation Board for the Respondents Surface Rights Board Don Padget Alberta Justice for the Intervener