• The NEB's process was not procedurally fair because, among other things, the NEB failed to hold an oral hearing or provide sufficient reasons;
• The NEB failed to consider issues, including the risks and impacts of the project to the City of Burnaby and alternative means of carrying out the project, before recommending approval of the project;
• The NEB failed to consider alternative locations to the Westridge Marine Terminal site;
• The NEB failed to assess the impact of increased tanker traffic; and
• The NEB failed to consider the effect the project might have on killer whales.

Ultimately, the Court found that most of the alleged flaws asserted with respect to the NEB's process and findings were without merit, but that the NEB made one critical error. Read the full bulletin posted on the Fasken website.

Trudeau Says He Won't Use "Tricks" to
Ram through Pipeline Construction
Prime Minister Justin Trudeau is pouring cold water on Alberta's suggestion that the federal government use legislation or a court appeal to get construction started quickly on the Trans Mountain pipeline expansion. In an interview on Edmonton radio station CHED, Trudeau says using "tricks" such as a new law or the Constitution's notwithstanding clause would create further legal fights down the road. "Using a legislative trick might be satisfying in the short term, but it would set up fights and uncertainty for investors over the coming years on any other project, because you can't have a government keep invoking those sorts of things on every given project," he told the radio station. "People want to know that we are doing things the right way for the long term — that jobs that get started will continue and won't get stopped by the courts. That's the change we are focused on making." The Federal Court of Appeal last week reversed a cabinet decision to allow Trans Mountain construction to go ahead. Read The Vancouver Sun article. 

Government Pressing Forward with Plans for Legislation to
Regulate Professional Regulators
– from ABCFP
I've heard from members who are deeply concerned about the recommendations contained in the government's recent professional reliance report and what they could mean for professional forestry in BC. I've also heard from members who embrace much of the report and agree with the direction laid out by Mark Haddock, the environmental lawyer who wrote the report. This division is understandable. With 121 recommendations, the report is a public-policy buffet. There are many recommendations all forest professionals would no doubt agree with. At more than 130 pages, a detailed reading of the report is needed to understand the full breadth and implications of the many recommendations. The devil truly is in the details, as the saying goes. Following the release of the report, I emailed a message to all members in which I asserted the following two recommendations will have far-reaching effects and significant cost implications for non-profit professional associations such as the Association of BC Forest Professionals: Read the full article published by Christine Gelowitz, RPF in the September/October edition of BC Forest Professional Magazine.

BC Environmental Appeal Board Refuses Expert
Opinion from Consultant Who Acted as Agent
The British Columbia Environment Appeal Board (Board) recently ruled that a consultant who had acted as agent for one of the parties to an environmental appeal could not testify as an expert witness on behalf of that party. Parties seeking assistance from their technical experts in applications for regulatory permits or subsequent appeals should exercise caution before having them assist in a manner that makes them appear as an advocate, as it may limit their ability to rely on the consultant's professional independence.

Jack and Linda Chisholm v. Assistant Water Manager was an appeal to the Board regarding a water licence amendment. The appellants had retained an independent consultant to assist with water licensing issues, including investigating the history of the water licences on their property and communicating with the respondent water manager regarding the application to amend the licence. When the water manager refused the application, the consultant acted as agent for the appellants in the appeal itself, including preparing submissions and representing them during the hearing. When the appellants attempted to call the consultant to give opinion evidence in the oral hearing, the respondent objected, arguing that the consultant was not sufficiently independent to qualify as an expert witness. The Board reviewed the consultant's role in both the application for the amendment and the appeal, finding he had acted as the appellants' agent, signed correspondence on their behalf and used language that indicated he was advocating for them. The Board held that the consultant could not testify as an expert witness, as he was not sufficiently independent from the appellants to qualify to provide opinion evidence. He was allowed to testify as a lay witness, giving factual evidence only. Read the full article by Janice Walton and Paulina Adamson with Blake, Cassels & Graydon LLP. 

Federal Court of Appeal Quashes Order in Council Approving Kinder Morgan Trans Mountain
Pipeline Expansion in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153
On August 30, 2018, the Federal Court of Appeal released its decision concerning the judicial review of an Order in Council approving the Kinder Morgan Trans Mountain Pipeline Expansion Project (the "Expansion Project"). The Order in Council, dated November 29, 2016, was based on a report and recommendation of the National Energy Board ("NEB"), and directed the NEB to issue a certificate of public convenience and necessity approving the construction and operation of the Expansion Project.

The Application before the Federal Court of Appeal was a consolidation of numerous applications for judicial review of the Order in Council. The Applicants seeking to challenge the Order in Council included multiple First Nations, the cities of Burnaby and Vancouver, and two NGOs.

The Federal Court of Appeal narrowed the issues before it to two questions:

1. Were the Board's process and findings so flawed that the Governor in Council could not reasonably rely on the Board's report?
2. Did Canada failed to fulfil the duty to consult owed to Indigenous peoples?

Read the full article by Chantal DeSereville of Siskinds LLP.

Environmental Appeal Board Decisions
There were two Environmental Appeal Board decisions in the month of August.

Environmental Management Act

• Patricia Rush; Norman W. Rush; Brookswood Fernridge Community Association; Frank P. Mueggenburg; IronGait Ventures Inc.; Randy Ryzak; and Catholic Independent Schools Vancouver Archdiocese v. District Director, Environmental Management Act [Preliminary Issues of Jurisdiction – Allowed in Part]

Water Sustainability Act

• Jack and Linda Chisholm v. Assistant Water Manager [Amendment to Decision – Approved]

Liberals Consider "Right to Disconnect" in
Labour Rule Revamp: Report
The federal Liberals are considering whether a reshaping of federal labour standards should include giving workers the right to ignore their job-related emails at home.

The idea of putting into law a "right to disconnect" is one of several policy areas the Liberals identify as meriting further study in a report being made public ahead of the Labour Day long weekend.

Governments in Canada and overseas have taken a closer look at the right-to-disconnect concept after France adopted a law in 2016 giving workers the right to turn off their electronic work devices outside of business hours over worries that employees were doing unpaid overtime, or being driven to burnout.

The results of a year-long consultation on changes to the federal labour code showed a split between employer and labour groups over whether the Liberals should follow suit and set rules for workers in federally-regulated industries. That includes employees in transport, banking and telecommunications, and could also influence provincial labour laws.

"While many concerns were raised during our consultations, one message was clear: Canadians want more work-life balance," Labour Minister Patty Hajdu said in a statement. "It is time for the federal labour standards to be modernized to reflect the realities that Canadians face today, and we're taking the insights gathered from these consultations very seriously." Read the full article by Jordan Press on the Canadian Occupational Safety.

Lack of Emergency Procedures Contributed to
Fernie Arena Deaths: WorkSafeBC
A WorkSafeBC investigation into an ammonia leak which killed three workers at a Fernie arena blames an aging refrigeration system and years of unheeded warnings for the tragedy.

The 74-page report cites failures on the parts of both the City of Fernie and CIMCO refrigeration contractor to ensure crucial safety procedures and risk assessment tools were implemented and understood by workers.

The investigation identified violations of the Workers Compensation Act by both the city and CIMCO, as well as multiple violations of Occupational Health and Safety Regulations by the city.

"Fernie had not reviewed the emergency procedures or conducted any practice drills for many years prior to the incident," the document says.

"When the upset condition occurred, and Fernie's workers responded to the first alarms, they were unfamiliar with the procedures, and important provisions prescribed by the procedures were overlooked." Read the full article by Jason Proctor of CBC News.

Human Rights Law: Worker Challenges
WorkSafeBC's Policy
A 40-year-old marble mason in Vancouver suffered a work-related shoulder injury in 2015 for which WorkSafeBC granted him an award of permanent partial disability. Because his employer had no modified duties for him, he applied for assistance from the WorkSafeBC's vocational rehabilitation services department, which assists in finding alternative employment to accommodate the disabilities of such workers. However, this worker later lodged a complaint with the BC Human Rights Tribunal, claiming the agency violated human rights law by denying his request to attend a post-secondary program based on his age.

The injured worker had several meetings with a consultant at the rehabilitation program, during which his job experience, physical restrictions, interests and education were discussed. The consultant suggested a short training course that would provide the worker with project and safety management certification to obtain employment in the marble mason industry as a foreman. WorkSafeBC would arrange the five-week training course and then provide another 12 weeks of support in finding suitable work. Read the full article on the Overholt Law website.