Stay Pending Appeal – Party Status
In this case, the Alberta Court of Appeal (“ABCA”) granted a stay pending appeal of a mandatory interim injunction that had been granted by the Court of Queen’s Bench. The interim injunction directed the Alberta Cabinet (“Cabinet” or “Alberta”) to make a decision in ten days on whether to authorize a project by Prosper Petroleum Ltd. (“Prosper”) under section 10 of the Oil and Gas Conservation Act (“OGCA”).
The Fort McKay First Nation (“First Nation”) was added as an intervenor to the appeal.
Prosper applied in November 2013 to the AER for approval of its Rigel oil sands project (the “Project”), located near the Fort McKay First Nation’s Moose Lake Reserve. Pursuant to s 10(3)(a) of the OGCA, the AER may grant approval on any terms and conditions that it considers appropriate “if in its opinion it is in the public interest to do so, and with the prior authorization of the Lieutenant Governor in Council.” In June 2018, the AER found the Project to be in the public interest and approved it, subject to Cabinet authorization. Cabinet had not yet made a decision on the Project.
The Interim Mandatory Injunction
In January 2020, approximately 19 months after the AER rendered its decision, Prosper brought an application for an interlocutory mandatory injunction to compel Cabinet to decide whether it would authorize the Project to proceed. The chambers judge granted that application on February 18, 2020 (the “Decision”) and directed that Cabinet make a decision on the Project within ten days. Alberta appealed that Decision and sought a stay pending determination of the appeal.
Grounds of Appeal
Alberta appealed on the ground that the chambers judge committed the following errors in granting the injunction:
(a) finding that Cabinet, when acting under section 10 of the OGCA, is acting as an agent of the legislature and not an agent of the Crown and, therefore, is not immune from coercive court orders;
(b) reading into the OGCA an implied duty on Cabinet to make a decision within a reasonable time;
(c) interpreting Cabinet’s discretion under the OGCA as other than “unfettered, absolute, permissive, or unqualified” and thus subject to mandamus;
(d) finding that Cabinet had engaged in an abusive delay that was ultra vires its authority under the OGCA;
(e) finding that Prosper had satisfied its onus of showing irreparable harm;
(f) failing to apply the presumption that Cabinet is acting in the public interest; and
(g) giving only ten days from the date of the Decision for Cabinet to comply.
Stay Pending Appeal
The ABCA noted that the test for a stay pending an appeal may be ordered if the applicant satisfies the court:
(a) that there is a serious question to be determined on appeal;
(b) that the applicant will suffer irreparable harm if the stay is not granted; and
(c) that the balance of convenience favours granting the stay.
The ABCA found that the test that Alberta must meet to satisfy the first step of the test for a stay pending appeal is the lower standard generally applied on such applications, that is, that the appeal raises a serious issue that is not frivolous. The ABCA found that Alberta met the onus of establishing that the appeal raises a serious question.
The Court noted that irreparable harm would generally be established when a refusal to grant a stay might render an appeal nugatory. Alberta satisfied that aspect of the test.
Balance of Convenience
The ABCA wrote that the exercise of determining the balance of convenience requires the court to compare the impact on Alberta if a stay was refused with the impact on Prosper if the stay was granted. The impact on Alberta if a stay was denied was that the substance of its appeal, that mandamus should not have been ordered, would be rendered nugatory, and it would be required to deliver a decision on the Project by February 28, 2020. The effect of denying a stay would effectively determine the appeal against Alberta, even if it would have ultimately succeeded had the appeal proceeded.
The impact on Prosper if a stay was granted was that, if the stay was granted and the appeal dismissed, Prosper would still be entitled to the benefit of the substance of the order obtained, subject to any delay occasioned by the appeal.
The ABCA found that the balance of convenience favoured granting the stay so that the appeal would not be rendered nugatory. The delay inevitable with an appeal could be reduced by having the appeal proceed on an expedited basis.
The Decision was stayed pending appeal on the condition that the appeal proceed on an expedited basis.
Party / Intervenor Status for the First Nation
The First Nation sought to be added as a respondent to the appeal, or alternatively to be added as an intervenor. The ABCA noted that to be added as a party, the test is whether or not the applicant has a legal interest in the outcome of the proceeding. To be added as an intervenor, the applicant should be specially affected by the decision or have some special expertise or fresh perspective to bring to bear on the issues.
The ABCA noted that the subject matter of this appeal was not the substantive decision that would ultimately be made by Cabinet to authorize the Project or not. The appeal dealt only with whether the court can and should issue a mandatory injunction requiring a decision be made and within a certain time frame. The First Nation’s legal interests may arguably be affected by the former, but not the latter. However, the First Nation clearly had an interest in relation to the Project and in these proceedings, and the Court found that its perspective should be before the Court on the appeal.
The First Nation’s application to be added as a party to this appeal was denied, and its application to be added as an intervenor was granted.
The ABCA granted Alberta’s application for a stay pending appeal of the Decision on the condition that the appeal be prosecuted on an expedited basis. The appeal was set to be heard on April 27, 2020, in Edmonton, Alberta.