Arbitration – CER Jurisdiction
On October 10, 2019, Peace River Greenhouses Ltd. (“PRG”) filed an application (“Application”) for a compensation hearing under section 327 of the Canadian Energy Regulator Act (“CER Act”). The Application sought compensation from Westcoast Energy Inc., carrying on business as Spectra Energy Transmission (“Westcoast”) regarding two of its pipelines across PRG’s property.
In August 2009, PRG served the Minister of Natural Resources (“Minister”) a notice to arbitrate under subsection 90(1) of the former National Energy Board Act (“NEB Act”). The Minister appointed a three-member arbitration committee (“Arbitration Committee”) to consider the matter.
PRG argued that the arbitration had been concluded since 2012. In the alternative, PRG sought to terminate the arbitration.
Westcoast requested that the CER dismiss the Application because the arbitration remains assigned to the Arbitration Committee and is extant. Pursuant to section 41 of the transitional provisions associated with the CER Act, Westcoast argued that the CER lacks jurisdiction to consider the Application.
The CER dismissed the Application for the reasons below.
The CER Act came into force on 28 August 2019. Section 41 of the transitional provisions associated with the CER Act provides that any request for which a notice to arbitrate was served on the Minister under subsection 90(1) of the NEB Act is continued in accordance with those subsections.
Under section 96 of the NEB Act, the Minister may terminate the appointment of the Arbitration Committee if the Minister is satisfied that the Committee has no arbitration work to carry out. There was no evidence that the Minister terminated the appointment of the Arbitration Committee.
Westcoast stated that in 2012, the Arbitration Committee held that PRG repeatedly failed to comply with the Arbitration Committee’s directions and orders regarding document and expert report disclosure. As a result, the Arbitration Committee stayed the arbitration until PRG completed its document disclosure obligations. In the fall of 2014, the Arbitration Committee responded to the parties after receiving correspondence from PRG. The Arbitration Committee noted that the arbitration remained assigned to the Arbitration Committee and that before the arbitration could resume, PRG must comply with the outstanding orders. PRG did not dispute this in its submissions.
The CER noted that the arbitration remains assigned to the Arbitration Committee. The arbitration provisions under the NEB Act, therefore, continue to apply, pursuant to section 41 of the transitional provisions associated with the CER Act. The CER found that it has no authority to terminate the appointment of the Arbitration Committee or to otherwise conclude its mandate. It determined that it is without jurisdiction to consider the Application. The Application was dismissed.
