2023 ONSC 1161, 2023 ONSC 1161

CITATION : Haudenosaunee Development Institute v. HMQRO v. Sun-Canadian Pipe Line Company Limited, 2023 ONSC 1161 DIVISIONAL COURT FILE NO.: 422/22 DATE: 20230216 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Haudenosaunee Development Institute Applicant AND: Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Energy Respondent AND: Sun-Canadian Pipe Line Company Limited Proposed Intervenor BEFORE: Justice O’Brien COUNSEL: T. Gilbert and J. MacDonald, for the Applicant B. Fragomeni and I. Kamal , for the Respondent J. Vellone, T. Markin and L.

Wagner, for the Proposed Intervenor, Sun-Canadian Pipe Line Company HEARD: February 15, 2023 ENDORSEMENT O verview [ 1 ] Sun-Canadian Pipe Line Company Limited (“SCPL”), an owner and operator of a pipeline in southern Ontario, brings this motion seeking leave to intervene in an application for judicial review brought by the Haudenosaunee Development Institute (“HDI”) (the “Application”). HDI acts on behalf of the Haudenosaunee Confederacy, a confederacy of Indigenous nations.

It seeks to judicially review a letter of opinion by the Ministry of Energy concluding that the duty to consult in respect of SCPL’s pipeline replacement project was satisfied. SCPL provided the letter to the Ontario Energy Board (“OEB”) for consideration as part of its successful application for leave to construct the project. [ 2 ] In addition to seeking judicial review of the letter, HDI is appealing the OEB’s decision granting leave on the project in a parallel appeal proceeding on the same timeline (the “Appeal”).

The Court previously ordered the Application and Appeal to be heard on the same day by the same panel. [ 3 ] SCPL submits that it has a direct interest in and could be adversely impacted by the decision in the Application. It also submits there are issues of fact and law in common with the Appeal. [ 4 ] At the conclusion of the motion, I advised that I was granting SCPL leave to intervene as an added party. The following are my reasons for doing so. Analysis [ 5 ] Rule 13.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 permits a party to move for leave to intervene as an added party where they have (

a) an interest in the subject matter of the proceeding; (

b) they may be adversely affected by a judgment in the proceeding; or (

c) there exists between them and one or more of the parties a question of law or fact in common with the questions in issue in the proceeding. [ 6 ] Pursuant to r. 13.01(2), the court must consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and may make such order as is just. [ 7 ] I agree with SCPL that they have met all three criteria set out in r. 13.01(1). I start with the third factor, that there are issues of law and fact in common, because the commonality between the proceedings is evident in this case.

Both proceedings relate to the same pipeline project by the same proponent. Both address the rights of the same Indigenous community in respect of the project. In both proceedings, the court will need to address whether the Crown met its duty to engage with HDI. In the appeal of the OEB decision, HDI alleges that the OEB erred in its assessment of the adequacy of the Crown’s engagement with HDI. In the Application, HDI challenges the process by which the Ministry arrived at the opinion that Indigenous consultation with respect to the project was sufficient.

The OEB considered the opinion letter in its decision to grant SCPL leave to construct. [ 8 ] HDI attempts to distinguish between the adequacy of the Crown’s engagement with HDI in the Appeal, which focuses in part on the failure to conduct a preliminary assessment of rights, and the process by which the Ministry arrived at the opinion letter. In its

submission, the Ministry’s process leading to the opinion letter was deficient in that the Ministry failed to contact HDI when it was reviewing whether the duty to consult had been met. With respect, this is an overly fine distinction that does not persuade me, the two proceedings have no commonality. Overall, both proceedings challenge the Crown’s engagement with HDI as insufficient. One of the remedies HDI seeks on the Application is that the Ministry’s letter be quashed.

If the Court concluded that the letter should be quashed because of insufficient engagement with HDI, this could impact its analysis of whether the OEB erred in finding the duty to consult had been met. [ 9 ] Further, HDI’s position that there are no issues in common is belied by the fact that it requested to have the Application and Appeal consolidated and heard together.

In an August 25, 2022 letter to the parties, counsel for HDI stated that the Application and Appeal “concern the same or substantially similar facts.” [ 10 ] SCPL also has a direct interest in and could be adversely impacted by the Court’s decision on the Application. Although HDI frames the Application as relating only to the relationship between the Ministry and HDI, its factum on the Application implicates SCPL’s conduct.

For example, in its factum, HDI impugns SCPL’s actions in discussing a draft engagement agreement with the Ministry. [ 11 ] More importantly, on the Application, HDI is seeking an order not only quashing the opinion letter but requiring the Ministry to engage with HDI in reaching a new opinion regarding whether the duty to consult was met. If HDI is successful in obtaining this remedy, SCPL’s project could be delayed or otherwise impacted. [ 12 ] Finally, there is no prejudice to HDI in granting SCPL intervener status. The parties have completed cross-examinations and a

schedule for the exchange of materials is already in place. SCPL does not seek to alter the schedule. The Appeal and Application will be heard together over one day. SCPL’s participation in the Application will not result in any delay or expansion of the Application. [ 13 ] Given the strength of SCPL’s direct interest in the Application, I do not need to address HDI’s submissions regarding whether SCPL will make a useful contribution to the hearing of the Application. Disposition [ 14 ] Therefore, SCPL is granted status as an additional party in the Application, with all the rights of a party.

These include the right to file a factum and make oral submissions, with the length of the oral submissions to be discussed by the parties and ultimately in the discretion of the panel. SCPL also may seek costs or be subject to an award of costs. Both HDI and SCPL are encouraged to minimize any overlap in their submissions on the Application and Appeal.

SCPL is also encouraged to avoid any duplication in its submissions on the Application with those of the Ministry. [ 15 ] In accordance with the agreement between the parties, HDI shall pay costs of this motion to SCPL in the amount of $25,000 all-inclusive. _________________________ O’Brien J Date: February 16, 2023