T-1491-02
2004 FC 553
Maritimes and Northeast Pipeline Limited Partnership by its General Partner, Maritimes and Northeast Pipeline Management (Applicant)
v.
Clayton C. Elliott and Linda L. Elliott and The Minister of Natural Resources (Respondents)
Indexed as: Maritimes and Northeast Pipeline Limited Partnership v. Elliott (F.C.)
Federal Court, Layden-Stevenson J.--Halifax, March 18; Ottawa, April 13, 2004.
Energy -- Judicial review of Minister's decision to refer to arbitration claim for compensation for alleged diminution of capital value of property due to proximity to pipeline -- Land in question adjacent to controlled area -- National Energy Board Act, s. 90(1) permitting request for arbitration where "owner of lands" wishing to dispense with negotiation proceedings -- Application of principles of statutory construction to determine meaning of "owner", "of lands" -- Elliotts owners of lands -- But claim not falling within provisions of Act -- S. 84 providing negotiation, arbitration procedures apply to damage caused by pipeline, anything carried by it, but not to claims arising out of activities of company except where directly related to acquisition of lands or construction, inspection, maintenance or repair of pipeline -- Balisky v. Canada (Minister of Natural Resources) distinguished -- Right to compensation ends with controlled area -- Application allowed.
Construction of Statutes -- National Energy Board Act -- Comparison of English, French versions of s. 90(1), permitting request for arbitration of compensation claims by "owner of lands"/"propriétaire" -- Principles of statutory construction set out by S.C.C. in Rizzo & Rizzo Shoes Ltd. (Re), R. v. Daoust, applied -- "Owner of lands" ambiguous, "propriétaire" vague -- Lack of modifier "des terrains" notwithstanding use in other sections (dealing with pipeline routes) noted -- Assuming common, shared meaning narrower one i.e. owner of lands -- "Lands" meaning "lands" as term ordinarily used, understood -- Not restricted to "lands" as defined in s. 2.
This was an application for judicial review of the Minister's decision that an arbitration committee would be appointed to hear a claim for compensation for diminution of the capital value of property alleged to have arisen due to the proximity of the property to the plaintiff's pipeline. The land in question is adjacent to the controlled area i.e. an area within 30 metres of a pipeline right-of-way wherein certain activities are restricted to ensure public safety.
National Energy Board Act, section 84 provides that the "negotiation and arbitration procedures to determine compensation matters apply in respect of all damage caused by the pipeline of a company" unless the damage comes within the exceptions enumerated in paragraphs (a), (b) and (c). Under paragraph 91(2)(b) the Minister has a statutory duty not to refer a matter to arbitration when satisfied that the matter does not fall within the arbitration committee's jurisdiction.
Subsection 90(1) permits an owner of lands to request arbitration. The applicant argued that the arbitration provisions do not apply because the Elliotts are not owners of "lands" as that term is defined in section 2 (lands the acquiring, taking or using of which is authorized by the Act). They also argued that the claim was a claim for injurious affection without a taking, which is not recognized in law unless clearly and expressly provided for by statute. The Elliotts submitted that the Act does provide for such a claim and relied upon the reasoning in Balisky v. Canada (Minister of Natural Resources) wherein the Federal Court of Appeal held that the claims arising with respect to landowners adjacent to the right-of-way (the section 112 controlled area) arise by virtue of the presence or existence of the pipeline. Rothstein J.A. concluded that the Act does not suggest that landowners are not to be compensated for the loss of their land for the right-of-way and for the adverse effect on the remaining land because of severance or other reasons. He stated that a landowner should be able to have a claim for a loss in value treated in the same manner as a claim for any other adverse effect to remaining land as a result of the presence of a pipeline.
The issue was whether the Minister must refer claims for compensation for alleged damages to lands in the vicinity of the pipeline to an arbitration committee. The narrower issue was whether the reasoning in Balisky can be extended to lands beyond the controlled area.
Held, the application should be allowed.
Parliament did not intend to restrict the negotiation (section 88) and arbitration (section 90) processes to those whose lands were taken, acquired or used by a pipeline company. The English version of subsection 90(1) permits a request for arbitration where a company or an "owner of lands" wishes to dispense with negotiation proceedings. The French version refers to "propriétaire". "Owner of lands" is ambiguous. It could mean the owner of "lands" as defined in section 2 (lands taken, acquired or used) or of "lands" as opposed to other chattels such as livestock. "Propriétaire" is vague rather than ambiguous. It can refer to an owner of real property or chattels, a beneficial owner, and a landlord. Similarly "owner" on its own could equally be considered vague. While "owner" in section 85 is defined by reference to section 75 (all persons interested), "owner" in subsection 90(1) includes the additional words "of lands". In French "propriétaire" is used as the equivalent of "owner" and is also defined by reference to section 75 (tous les intéressés), but "propriétaire" is not modified by the equivalent to "of lands" ("terrains") in subsection 90(1) as in other sections dealing with pipeline routes. "Owner" and "propriétaire" are specifically defined only in relation to sections 86 to 107.
Assuming that the common or shared meaning is the narrower one--owner of lands--did not resolve the meaning to be attributed to the words "of lands". Importing the section 2 definition of "lands" (lands taken, acquired or used) into the phrase "owner of lands" in subsection 90(1) does not conform to the object of the Act or the intention of Parliament. The purpose of the compensation provisions in Part V of the Act is to provide an efficient and fair mechanism to promptly determine adequate compensation where damage is sustained due to the direct exercise by a pipeline company of the powers provided under section 73. The pipeline company is obliged to make full compensation in the manner provided in the Act to all persons interested for all damage sustained by them by reasons of the exercise of the section 73 powers. The only "manner provided" in the Act is negotiation under section 88 or arbitration under section 90. If the applicant's position regarding "lands" were accepted, landowners sustaining damage to their lands as a result of the pipeline company's construction of the pipeline or inspection, maintenance or repair of the pipeline, who cannot agree on compensation, would have no recourse under the Act unless their land was acquired, taken or used. That is not consistent with the purpose of the Act and does not reflect the intention of Parliament. Such an interpretation would render sections 75, 84 and 85 meaningless. The word "lands" in subsection 90(1) means "lands" as that term is ordinarily used and understood. It is not restricted to "lands" as that term is defined in section 2.
But the Elliotts' claim did not fall within the provisions of the Act. The Act provides for compensation in relation to the pipeline company's acquisition, taking or use of lands (sections 84 and 86). This relates to lands in the right-of-way. It may also include and does not preclude lands in the controlled area: Balisky. The Act also specifies that compensation must be paid to all persons interested for damage done in the exercise of the pipeline company's powers. Such powers are delineated in section 73, and include, among other things, rights of entry onto the land, purchase of land, construction, maintenance and operation of the pipeline, roads, buildings, and branch lines. Section 84 provides that negotiation and arbitration procedures apply to damage caused by the pipeline or anything carried by it, but not to claims arising out of the activities of the company except where they directly relate to the acquisition of lands, or the construction, inspection, maintenance or repair of the pipeline.
The Balisky reasoning did not apply by analogy to the Elliotts' situation. The claim in Balisky concerned land in the "controlled area" or adjacent to the pipeline right-of-way. The land at issue herein was not subject to the restrictions and limitations that apply to the controlled area. Right to compensation ends with the controlled area. If there is no right to compensation, it follows that there is no right to arbitration. The Minister's determination was not correct and must be set aside.
statutes and regulations judicially
considered
Interpretation Act, R.S.C., 1985, c. I-21, s. 10.
| National Energy Board Act, R.S.C., 1985, c. N-7, ss. 2 "Arbitration Committee", "lands", 34(3),(4), 73, 75, 84 (as am. by S.C. 2001, c. 4, s. 103), 85, 86 (as am. idem, s. 104), 88, 90, 91, 97(1), 112 (as am. by S.C. 1990, c. 7, s. 28; 1994, c. 10, s. 26; 1999, c. 31, s. 167), 115. |
| National Energy Board Pipeline Crossing Regulations, Part I, SOR/88-528. |
| National Energy Board Pipeline Crossing Regulations, Part II, SOR /88-529. |
cases judicially considered
applied:
Balisky v. Canada (Minister of Natural Resources), [2003] 4 F.C. 30; (2003), 1 C.E.L.R. (3d) 7; 239 F.T.R. 159; 301 N.R. 104 (C.A.); leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 193 (as to standard of review); Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 31 O.R. (3d) 576; 142 D.L.R. (4th) 206; 45 Admin. L.R. (2d) 1; 36 M.P.L.R. (2d) 163; 206 N.R. 321; 97 O.A.C. 81; 7 R.P.R. (3d) 1; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; R. v. Daoust, [2004] 1 S.C.R. 217; (2004), 235 D.L.R. (4th) 216; 180 C.C.C. (3d) 449; 18 C.R. (6th) 57; 316 N.R. 203; Estabrooks Pontiac Buick Ltd. (Re) (1982), 44 N.B.R. (2d) 201; 144 D.L.R. (3d) 21; 7 C.R.R. 46 (C.A.).
distinguished:
Balisky v. Canada (Minister of Natural Resources), [2003] 4 F.C. 30; (2003), 1 C.E.L.R. (3d) 7; 239 F.T.R. 159; 301 N.R. 104 (C.A.); leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 193.
referred to:
United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485; (2004), 346 A.R. 4; 236 D.L.R. (4th) 385; [2004] 7 W.W.R. 603; 26 Alta. L.R. (4th) 1; 12 Admin. L.R. (4th) 1; 46 M.P.L.R. (3d) 1; 318 N.R. 170; 18 R.P.R. (4th) 1.
authors cited
Petit Robert 1: Dictionnaire alphabétique et analogique de la langue française. Paris: Le Robert, 1992. "propriétaire".
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
Translation Bureau. Termium. online: http:// termiumplus.bureaudelatraduction.gc.ca (2004). "propriétaire".
APPLICATION for judicial review of the Minister's decision to refer a claim for compensation for diminution of the capital value of property in the vicinity of a pipeline to arbitration. Application allowed.
appearances:
E. Bruce Mellett for applicant.
Robert H. Pineo for respondents Clayton and Linda Elliott.
Bruce Hughson for respondent Minister of Natural Resources.
solicitors of record:
Bennett Jones LLP, Calgary, for applicant.
Patterson Palmer, Truro, Nova Scotia, for respondents Clayton and Linda Elliott.
Deputy Attorney General of Canada for respondent Minister of Natural Resources.
The following are the reasons for judgment rendered in English by
[1]Layden-Stevenson J.: The Minister of Natural Resources (the Minister) determined that an arbitration committee would be appointed to hear the compensation claim of Clayton C. Elliott and Linda L. Elliott (the Elliotts). The Elliotts claimed compensation for diminution of the capital value of their property alleged to have arisen due to the proximity of their property to a pipeline constructed by Maritimes and Northeast Pipeline Limited Partnership (MNP). MNP submits that the arbitration provisions of the National Energy Board Act, R.S.C., 1985, c. N-7 (the Act) do not apply to the Elliotts or their claim and seeks to have the Minister's decision quashed.
BACKGROUND
[2]The facts are not in dispute. Briefly stated, MNP was granted a certificate of public convenience and necessity for the construction of a pipeline to ship natural gas from near Goldboro, Nova Scotia to markets in the Maritimes and northeastern United States. The detailed route of the pipeline (consisting of a 25-metre right-of-way) was not opposed or objected to by either the Minister or the Elliotts. The right-of-way does not traverse or otherwise physically impact the Elliotts' former property (sold in 2001), although a portion of the property is located within the 30-metre controlled area established under section 112 [as am. by S.C. 1990, c. 7, s. 28; 1994, c. 10, s. 26; 1999, c. 31, s. 167] of the Act. MNP did not acquire an easement or other interest from the Elliotts and has no right to enter onto the Elliotts' former property.
[3]After the Elliotts filed their notice of arbitration with the Minister, MNP filed a reply. Later, MNP and the Elliotts complied with the Minister's request for further submissions regarding the issue of compensation in the controlled area. By correspondence dated August 9, 2002, the Minister advised that no arbitration committee would be appointed regarding "compensation in relation to the statutory obligation imposed under [the Act] with respect to the controlled area", but an arbitration committee would be appointed to hear the Elliotts' claim with respect to the damages claimed for diminution in the capital value of the property due to the proximity of the pipeline. The Minister had not asked for submissions in relation to the latter issue. The material portions of the Minister's decision are reproduced here:
My only role under paragraph 91(2)(b) of the NEB Act pertains to the issue of jurisdiction. I have a statutory duty not to refer a matter to an arbitration committee when, and if, I am satisfied that the matter does not fall within the committee's jurisdiction. I have reviewed all the correspondence and arguments that both parties have provided regarding this issue. After careful consideration, I am satisfied that Mr. and Mrs. Elliott's claim falls within the scope of the NEB Act. I will, therefore, refer this matter to an arbitration committee as requested in the notice of arbitration.
I am not disputing the position taken by Maritimes and Northeast Pipeline Management Ltd. (M&NP) concerning compensation for damages sought for statutory obligations imposed by the NEB Act with respect to the 30-meter buffer zone, also known as the controlled area. It is my position that any loss associated with having to comply with section 112 of the NEB Act cannot be adjudicated upon by an arbitration committee, as such loss is not directly related to damages caused by a pipeline company when constructing, maintaining or repairing the pipeline.
However, Mr. and Mrs. Elliott are seeking compensation for damages they suffered in the form of the diminution in capital value of their former property due to the close proximity of the pipeline to their former residential property. To the extent that such loss of value is not associated with the statutory obligations imposed by the NEB Act pertaining to the controlled area, I am satisfied that the matter referred to in the notice of arbitration is a matter to which the arbitration procedures set out in Part V of the NEB Act do apply.
ISSUE
[4]The primary issue is whether the Minister erred in determining that the arbitration procedure set out in Part V of the Act applies to the Elliotts' claim for compensation. If MNP does not succeed in this respect, it alleges that the Minister failed to observe a principle of natural justice or procedural fairness by failing to provide MNP an opportunity to be heard on the issue of whether the Minister had jurisdiction pursuant to subsection 91(1) of the Act to appoint an arbitration committee to consider the Elliotts' claim.
THE RELEVANT STATUTORY PROVISIONS
[5]The relevant statutory provisions are attached to these reasons as Schedule A. For ease of reference, sections 84 [as am. by S.C. 2001, c. 4, s. 103] and 91 are set out below:
National Energy Board Act, R.S.C., 1985, c. N-7 (1985), ch. N-7
84. The provisions of this Part that provide negotiation and arbitration procedures to determine compensation matters apply in respect of all damage caused by the pipeline of a company or anything carried by the pipeline but do not apply to
(a) claims against a company arising out of activities of the company unless those activities are directly related to
(i) the acquisition of lands for a pipeline,
(ii) the construction of the pipeline, or
(iii) the inspection, maintenance or repair of the pipeline;
(b) claims against a company for loss of life or injury to the person; or
(c) awards of compensation or agreements respecting compensation made or entered into prior to March 1, 1983.
. . .
91. (1) Where the Minister is served with a notice of arbitration under this Part, the Minister shall,
(a) if an Arbitration Committee exists to deal with the matter referred to in the notice, forthwith serve the notice on that Committee; or
(b) if no Arbitration Committee exists to deal with the matter, forthwith appoint an Arbitration Committee and serve the notice on that Committee.
(2) The Minister shall not take any action under subsection (1) where the Minister is satisfied that the matter referred to in a notice of arbitration served on the Minister is a matter
(a) solely related to the amount of compensation that has been previously awarded by an Arbitration Committee and that, under the award, the amount is not subject to a review at the time the notice is served; or
(b) to which the arbitration procedures set out in this Part do not apply.
(3) The Minister may, of his own motion and without having been served with a notice of arbitration referred to in subsection (1), appoint an Arbitration Committee.
THE STANDARD OF REVIEW
[6]The application record was filed on January 28, 2003. On February 27, 2003, the reasons for judgment in Balisky v. Canada (Minister of Natural Resources), [2003] 4 F.C. 30 (C.A.), leave to appeal to S.C.C. dismissed, [2003] S.C.C.A. No. 193 (Balisky) were released. In Balisky, the Federal Court of Appeal determined that the applicable standard of review with respect to the Minister's decision to appoint an arbitration committee under section 91 of the Act is correctness. Thus, despite the protestations of the Elliotts, I will apply correctness as the standard of review. (See also: United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, at paragraph 5.)
THE POSITIONS OF THE PARTIES
[7]MNP contends that Balisky involved the controlled area and in that regard it can be said that tangible restrictions with immediate impact arising from the company's pipeline do exist. That is distinct from the present circumstances where there are no restrictions in relation to the Elliotts' property. MNP argues that the reasoning in Balisky relates to property in the controlled zone and does not extend to adjacent land when there has been no taking by the company. Were it otherwise, MNP would face indeterminate liability.
[8]The Elliotts maintain that it was incumbent on the Minister in making a determination to employ a contextual approach to interpretation of the statute. They submit that in accordance with the reasons in Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32 (Dell Holdings), the following principles apply:
(a) an expropriation statute is a remedial statute and therefore must be given a broad and liberal interpretation consistent with its purpose;
(b) in the event of an ambiguity in an expropriation statute, that ambiguity should be resolved in favour of the landowner;
(c) there is a presumption that when property rights are taken from a citizen, full compensation will follow.
[9]Relying on section 10 of the Interpretation Act, R.S.C., 1985, c. I-21, the Minister submits that every Act shall be deemed remedial and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. The purpose of the compensation provisions found under Part V of the Act is to provide an efficient and fair mechanism to promptly determine adequate compensation where damages arise due to the direct exercise by a pipeline company of powers provided under section 73 of the Act. The Minister maintains that this compensation regime, exceptional to the common law, was designed to remedy disputes related to damages to land. Because it was recognized that a pipeline project was likely to affect individuals' property rights, Parliament designed a "fast track" compensation regime. It is said that the flexibility of the arbitration procedure is better suited to handle complicated claims related to identifying the nature of damages caused to lands, thereby avoiding claims being tied up for years in court. Accordingly, it is rational and consistent with the Act to conclude that the compensation mechanism was designed to not only hear claims with respect to lands acquired, taken or used by a pipeline company, but also lands that may be otherwise affected by the construction or the operation of a pipeline.
CLARIFICATION
[10]I referred earlier to the Minister's determination that "any loss associated with having to comply with section 112 of the [Act] cannot be adjudicated upon by an arbitration committee as such loss is not directly related to damages caused by a pipeline company when constructing, maintaining or repairing the pipeline". While that conclusion may not be consistent with the determination in Balisky, supra, it was not challenged in the written submissions or during the oral arguments on this application. Since no issue was taken and no argument was advanced in relation to the Minister's decision in this regard, it will not be considered.
ANALYSIS
[11]The issue is whether the Minister must refer claims for compensation for alleged damages to lands in the vicinity of the pipeline to an arbitration committee. The lands in question are adjacent to the controlled area established by subsection 112(1) of the Act. That subsection, in conjunction with the National Energy Board Pipeline Crossing Regulations, Part I [SOR/88-528] and National Energy Board Pipeline Crossing Regulations, Part II [SOR/88-529], restricts certain activities within 30 metres of a pipeline right-of-way to ensure the safety of the public. The narrower issue is whether the reasoning in Balisky, supra, can be extended to apply to lands beyond the controlled area.
[12]MNP argues that the Elliotts' claim is, in substance, a claim for injurious affection without a taking. It contends that such a claim, unless clearly and expressly provided for by statute, is not recognized in law. The Elliotts do not disagree with that proposition. Rather, they submit that the Act does provide for such a claim and they rely on the reasoning in Balisky, supra, which they say by analogy applies to their claim. The respondent Minister takes no position with respect to the merits of the Elliotts' claim. The Minister's concern is with respect to the jurisdiction delineated in subsection 91(1) of the Act.
[13]The governing principles in this respect are referred to in Dell Holdings, supra, and may be briefly stated. Where expropriation or injurious affection is authorized by statute, the right to compensation must be found in the statute. The presumption in favour of compensation applies where land has been taken and thus legislation should be read in a broad and purposive manner to ensure that a landowner is fully compensated for losses suffered as a result of expropriation. The losses must be the natural and reasonable consequences of the expropriation, that is, they must not be too remote. A fundamental distinction exists between land that is taken and land that is not. It is the taking of the land that triggers and gives rise to the right to compensation. No such presumption exists in a case of injurious affection where no land has been taken. In such a case, the right to compensation has been severely circumscribed.
[14]Thus, I must determine whether the Act provides for compensation for injurious affection and if so, whether it distinguishes between situations where the land is taken and where it is not. This is a matter of statutory interpretation and while it may appear to relate to the merits of the claim, as the respondent Minister suggests, I do not view it in that manner. Paragraph 91(2)(b) of the Act dictates that the Minister has a statutory duty not to refer a matter to an arbitration committee when the Minister is satisfied that the matter does not fall within the arbitration committee's jurisdiction. I do not see that the provision vests a discretion with the Minister as suggested by the Elliotts. In my view, it imposes a requirement that the Minister ascertain whether or not the claim is one for which compensation is provided by statute. In short, it calls for an interpretation of the statutory provisions and must be correct.
[15]MNP argues that the arbitration provisions of the Act do not apply to the Elliotts because they are not an owner of lands as the word "lands" is defined in the Act [section 2]. The word "owner", by virtue of section 85, means any person who is entitled to compensation under section 75. Section 75 refers to "all persons interested, for all damage sustained by them by reason of the exercise of [the pipeline company's] powers". The question then is whether Parliament intended that the word "lands" in sections 88 (negotiation) and 90 (arbitration) has the same meaning as that provided in section 2.
[16]I do not agree that Parliament intended to restrict the negotiation and arbitration processes to those whose lands were taken, acquired or used by a pipeline company. In arriving at this conclusion, I have considered various principles of statutory construction and have relied on the one expressed in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (Rizzo) and its progeny that [at paragraph 21] "there is only one principle or approach, namely, the words of an Act are to be read in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".
[17]I have considered that when Parliament uses the same word or phrase in the same Act, the word is presumed to have the same meaning in the various places in the statute in which it appears unless the contrary is clearly indicated by the context: Sullivan and Driedger on the Construction of Statutes, 4th ed. by Ruth Sullivan (Markham, Ont.: Butterworths, 2002), at page 163. For reasons that will become apparent, I conclude that the contrary is clearly indicated by the context in this case.
[18]I have also considered the recent decision of the Supreme Court in R. v. Daoust, [2004] 1 S.C.R. 217 (Daoust) wherein the Court discussed the principles of statutory construction applicable to divergent provisions of a bilingual statute. The English version of subsection 90(1) refers to circumstances where "a company or an owner of lands wishes to dispense with negotiation proceedings" whereas the French version states:
90. (1) Pour passer outre à la procédure de négociation ou en cas d'échec de celle-ci sur toute question visée au paragraph 88(1), la compagnie ou le propriétaire peut signifier à l'autre partie et au ministre un avis d'arbitrage.
[19]In Daoust, at paragraph 2, Mr. Justice Bastarache stated that "the rules of bilingual statutory interpretation prescribe an approach that favours the common meaning of the two versions of an enactment". In the context of a criminal charge, the Court applied the narrower of the two versions, which in that case was the French version. Although the narrower meaning will often be the one that is chosen to reflect the common (or shared) meaning, it is not a foregone conclusion. Justice Bastarache, at paragraph 28 noted: "If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version" (emphasis added). Ruth Sullivan notes that "in practice, the shared meaning rule often favours the broader rather than the narrower version": Sullivan and Driedger on the Construction of Statutes, supra, at page 83.
[20]In the present circumstances, "owner of lands" is ambiguous. It could mean, as urged by the applicant, the owner of lands as "lands" is defined in section 2 (lands taken, acquired or used). On the other hand, it may be that it means owner of lands where "of lands" is used to clarify that the damage suffered must be in respect of lands (rather than for instance, livestock or other chattels) as contended by the Elliotts.
[21]"Propriétaire" is vague rather than ambiguous. It can refer to a number of property concepts: the owner of real property or chattels, a beneficial owner, a landlord and so on (Termium, 2004, s.v. "propriétaire", online: Translation Bureau, <http://termiumplus. bureaudelatraduction.gc.ca>; Le Petit Robert 1, 1992, s.v. "propriétaire"). Similarly, "owner" on its own could equally be considered vague since the word is used for a wide range of concepts in English as well. While "owner" in section 85 is defined by reference to section 75 (all persons interested), "owner" in subsection 90(1) includes the additional words "of lands". In the French version, "propriétaire" is used as the equivalent of "owner" and is also defined by reference to section 75 (tous les intéressés), but "propriétaire" is not modified by the equivalent to "of lands" ("terrains") in subsection 90(1). In other sections of the Act, "propriétaire de terrains" is used (subsections 34(3) and 34(4)), but those subsections deal with the determination and approval of pipeline routes rather than compensation. "Owner" and "propriétaire" are specifically defined only in relation to sections 86-107.
[22]Assuming that the common or shared meaning is the narrower one--owner of lands--does not end the matter because it does not resolve the meaning to be attributed to the words "of lands". Even when a shared meaning is extracted, there is yet another step--"to determine whether the common or dominant meaning is, according to the rules of statutory interpretation, consistent with Parliaments's intent": Daoust, supra, at paragraph 30.
[23]In my view, importing the section 2 definition of "lands" (lands taken, acquired or used) into the phrase "owner of lands" in subsection 90(1) does not conform to the object of the Act or the intention of Parliament. The purpose of the compensation provisions in Part V of the Act is to provide an efficient and fair mechanism to promptly determine adequate compensation where damage is sustained due to the direct exercise by a pipeline company of the powers provided under section 73 of the Act. The pipeline company is obliged to make full compensation in the manner provided in the Act to all persons interested for all damage sustained by them by reason of the exercise of the section 73 powers. The only "manner provided" in the Act--for persons who have not agreed on the amount of compensation for damages suffered as a result of the operations of the company--is negotiation under section 88 or arbitration under section 90.
[24]The purpose of the arbitration scheme is, among other things, to provide a summary and expeditious procedure for the determination of damages suffered by landowners affected by a pipeline, with the object of keeping them whole. Arbitration committees are considered the appropriate forum for such determinations: Balisky, supra.
[25]Section 84 provides that the "negotiation and arbitration procedures to determine compensation matters apply in respect of all damage caused by the pipeline of a company" unless the damage comes within the exceptions in paragraphs (a), (b) and (c) of that section. If the applicant's position regarding "lands" is accepted, landowners sustaining damage to their lands as a result of the pipeline company's construction of the pipeline or inspection, maintenance or repair of the pipeline, who cannot agree on compensation, will have no recourse under the Act unless their land was acquired, taken or used. That is not consistent with the purpose of the Act and does not reflect the intention of Parliament. To adopt such an interpretation would render sections 75, 84 and 85 of the Act meaningless.
[26]Thus, I conclude that the word "lands" in subsection 90(1), when read "in [the] entire context and in [the] grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Rizzo, supra) means "lands" as that term is ordinarily used and understood. It is not restricted to "lands" as that term is defined in section 2 of the Act.
[27]Next, MNP argues that the Elliotts' claim does not fall within the provisions of the Act because there was no taking and the alleged damage did not arise as a result of the direct activities of the company. The public policy concern of indeterminate liability is reflected in the provisions of the Act. MNP submits that the Act provides for compensation, but the compensation is circumscribed by the provisions contained therein. It is contended that the mere existence of the pipeline in the vicinity of land does not provide the landowner with a claim for compensation.
[28]In this respect, I agree with the applicant. The Act provides for compensation in two circumstances. It is common ground that the first circumstance is in relation to the pipeline company's acquisition, taking or use of lands (sections 84 and 86 [as am. by S.C. 2001, c. 4, s. 104]). This relates to lands in the right-of-way. It may also include and does not preclude lands in the controlled area: Balisky, supra. The parties diverge when it comes to the second circumstance. The Act specifies that compensation must be paid for damage done by the pipeline company in the exercise of its powers. The compensation must be provided to all persons interested for all damages sustained by them "by reason of the exercise of those powers".
[29]The powers are delineated in section 73 of the Act and include, among other things, rights of: entry onto land; purchase of land; construction, maintenance and operation of the pipeline and necessary roads, buildings and other structures; construction, maintenance and operation of branch lines; alteration, repair, discontinuance or substitution of the works; the transmission and regulation of hydrocarbons by pipeline; and the charging of tolls.
[30]Section 84 provides that negotiation and arbitration procedures apply to damage caused by the pipeline or anything carried by it, but do not apply to claims arising out of the activities of the company except where those activities are directly related to the acquisition of lands, or the construction, inspection, maintenance or repair of the pipeline.
[31]Balisky, supra, revealed that the activities of the company in subsection 84(1) refer to actions of employees, subcontractors or others acting on behalf of the pipeline company. Activities directly related to the acquisition of land would include surveying, while those related to construction would include the physical transportation of pipe and other materials to the right-of-way and the work necessary to prepare the pipeline for operation. Activities directly related to inspection, maintenance or repair of the pipeline would include the work of individuals once the pipeline was ready for use or was in operation. The paragraph appears to be directed at negligent or even innocent acts of employees, subcontractors or others acting on behalf of the pipeline company that cause damage to land.
[32]Mr. Justice Rothstein stated that subsection 90(1), by reference, incorporates the subjects of the acquisition of land and the operations of the company referred to in subsection 88(1). He concluded that the operations of the pipeline include the activities referred to in paragraph 84(a), but that the ordinary everyday use of the pipeline, beyond construction, maintenance, inspection and repair also constitutes operations of the pipeline company.
[33]Justice Rothstein further stated that the claims arising with respect to landowners adjacent to the right-of-way (the section 112 controlled area) arise by virtue of the presence or existence of the pipeline. A distinction between damages arising out of the acquisition of the pipeline right-of-way and damages arising from the public safety requirement of the statute is not a valid distinction. He concluded that there is no suggestion in the Act that landowners are not to be compensated for the loss of their land for the right-of-way and for the adverse effect on remaining land because of severance or other reasons. Even though it is the statute that places the limitation on the use of the controlled area by a landowner, the result may be a loss in value to the landowner. A landowner should be able to have a claim for such loss treated in the same manner as a claim for any other adverse effect to remaining land as a result of the presence of a pipeline.
[34]There are two significant aspects regarding Balisky that bear repeating. First, the issue was [at paragraph 2]: "whether the Minister must refer to the Arbitration Committee claims for compensation for alleged damages involving what is termed the `controlled area' adjacent to the right-of-way of the pipeline" [underlining added]. Second, Mr. Justice Rothstein specifically stated [at paragraph 34]: "I should not be taken as implying that there are damages suffered as a result of limitations on the controlled area generally or in any given case" (my emphasis).
[35]I cannot accept the Elliotts' submission that the Balisky reasoning applies by analogy to their situation. It is evident that Mr. Justice Rothstein's comments were based on the legislated restrictions applicable to the controlled area. That is not the case I have before me. The land in issue here is not subject to the restrictions and limitations that apply to the controlled area. Secondly, it appears to me that, in Balisky, considerable emphasis was placed on the fact that the lands in question were situated adjacent to the pipeline right-of-way. Again, that is not the situation here.
[36]I have considered the Elliotts' argument regarding paragraph 97(1)(f) of the Act. Subsection 97(1) lists a number of factors to be considered by the arbitration committee when determining compensation. Paragraph (f) refers to "the damage to lands in the area of the lands taken by the company that might reasonably be expected to be caused by the operations of the company". With respect, the damage must be the natural and reasonable consequence of the operations of the pipeline company. They must not be too remote: Dell Holdings, supra.
[37]Lands in the controlled area may sustain damage, due to the existence of the pipeline, because of the legislated limitations regarding those lands. No such limitations apply to lands located beyond the controlled area. Neither the legislation nor the case law supports a claim for damages arising from the existence of a pipeline with respect to lands adjacent to the controlled area. Thus, the right to compensation in this regard ends with the controlled area. If there is no right to compensation, it follows that there is no right to arbitration. I see nothing in the Act indicating that Parliament contemplated or intended otherwise.
[38]The Elliotts could establish entitlement to arbitration under paragraph 97(1)(f) if they sustained damage to their property as a result of paragraph 84(a) activities of the company, such as those described by Mr. Justice Rothstein, listed earlier in these reasons. Those activities, however, must be directly related to acquisition, construction, inspection, maintenance or repair of the pipeline. There is no suggestion that this is the case and the Elliotts' notice of arbitration to the Minister did not refer to damage of that nature.
[39]I have also had regard to the National Energy Board, Bulletin 13, "Pipeline Regulation: An Overview for Landowners and Tenants" (February 1997), and specifically the following paragraph:
Compensation is not limited to landowners and tenants on the right-of-way. Owners of adjacent lands may experience damages due to a pipeline project. Anyone who is adversely affected and can demonstrate the actual costs of damages resulting from pipeline construction and operation, is entitled to request compensation from the company and to apply for a negotiator and/or arbitration when matters cannot be mutually resolved.
[40]I see nothing inconsistent with the contents of the noted paragraph and the determinations contained in these reasons. At the end of the day, the right to compensation, whatever it is and however it is described, must be found within the confines of the legislation. It is the Act that draws the line between what is compensable and what is not.
[41]The Elliotts' claim for compensation cannot be found to fall within the arbitration committee's jurisdiction because it is not a matter to which the arbitration procedures set out in Part V of the Act apply. The Minister's decision must be reviewed on a standard of correctness and I have concluded that the Minister's determination was not correct. Thus, it must be set aside.
[42]In coming to this conclusion, I am aware that a portion of the Elliotts' property lies within the controlled area. However, as stated earlier and as unfortunate as it may be, no issue was taken with respect to the Minister's determination not to refer any loss arising as a result of section 112 to an arbitration committee. The Minister's decision in that regard is not before me. In Estabrooks Pontiac Buick Ltd. (Re) (1982), 44 N.B.R. (2d) 201 (C.A.), La Forest J.A., as he then was, stated that the duty of the courts is to give effect to the intention of Parliament as expressed in the words of the statute however reprehensible the result may appear. That is where I find myself.
[43]Since the applicant has been successful, I need not deal with the issue of procedural fairness. The application for judicial review will be allowed and, as requested, the Minister's decision will be quashed and the matter will be remitted to the Minister for redetermination in accordance with the requirements set out in Part V of the Act. An order will so provide.
[44]The applicant did not seek costs. The respondent Minister requested costs. The respondent Minister, for the most part, supported the position taken by the Elliotts and has not been successful. Thus, no costs will be awarded. In view of the particular circumstances, the limited judicial consideration of the Minister's jurisdiction under the Act, and the fact that the application raises a public law issue that extends beyond the private dispute between the applicant and the respondents, I would not have awarded costs to the applicant or the Minister in any event.
SCHEDULE "A"
STATUTORY PROVISIONS
National Energy Board Act, R.S.C., 1985, c. N-7
2. In this Act,
"Arbitration Committee" means an Arbitration Committee appointed pursuant to section 91;
. . .
"lands" means lands the acquiring, taking or using of which is authorized by this Act or a Special Act, and includes real property, messuages, lands, tenements and hereditaments of any tenure, and any easement, servitude, right, privilege or interest in, to, on, under, over or in respect of the same;
. . .
73. A company may, for the purposes of its undertaking, subject to this Act and to any Special Act applicable to it,
(a) enter into and on any Crown land without previous licence therefor, or into or on the land of any person, lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline, and set out and ascertain such parts of the land as are necessary and proper for the pipeline;
(b) purchase, take and hold of and from any person any land or other property necessary for the construction, maintenance and operation of its pipeline and alienate, sell or dispose of any of its land or property that for any reason has become unnecessary for the purpose of the pipeline;
(c) construct, lay, carry or place its pipeline across, on or under the land of any person on the located line of the pipeline;
(d) join its pipeline with the transmission facilities of any other person at any point on its route;
(e) construct, erect and maintain all necessary and convenient roads, buildings, houses, stations, depots, wharves, docks and other structures, and construct, purchase and acquire machinery and other apparatus necessary for the construction, maintenance and operation of its pipeline;
(f) construct, maintain and operate branch lines, and for that purpose exercise all the powers, privileges and authority necessary therefor, in as full and ample a manner as for a pipeline;
(g) alter, repair or discontinue the works mentioned in this section, or any of them, and substitute others in their stead;
(h) transmit hydrocarbons by pipeline and regulate the time and manner in which hydrocarbons shall be transmitted, and the tolls to be charged therefor; and
(i) do all other acts necessary for the construction, maintenance and operation of its pipeline.
. . .
75. A company shall, in the exercise of the powers granted by this Act or a Special Act, do as little damage as possible, and shall make full compensation in the manner provided in this Act and in a Special Act, to all persons interested, for all damage sustained by them by reason of the exercise of those powers.
. . .
84. The provisions of this Part that provide negotiation and arbitration procedures to determine compensation matters apply in respect of all damage caused by the pipeline of a company or anything carried by the pipeline but do not apply to
(a) claims against a company arising out of activities of the company unless those activities are directly related to
(i) the acquisition of lands for a pipeline,
(ii) the construction of the pipeline, or
(iii) the inspection, maintenance or repair of the pipeline;
(b) claims against a company for loss of life or injury to the person; or
(c) awards of compensation or agreements respecting compensation made or entered into prior to March 1, 1983.
85. In sections 86 to 107, "owner" means any person who is entitled to compensation under section 75.
. . .
90. (1) Where a company or an owner of lands wishes to dispense with negotiation proceedings under this Part or where negotiation proceedings conducted under this Part do not result in settlement of any compensation matter referred to in subsection 88(1), the company or the owner may serve notice of arbitration on the other of them and on the Minister requesting that the matter be determined by arbitration.
. . .
91. (1) Where the Minister is served with a notice of arbitration under this Part, the Minister shall,
(a) if an Arbitration Committee exists to deal with the matter referred to in the notice, forthwith serve the notice on that Committee; or
(b) if no Arbitration Committee exists to deal with the matter, forthwith appoint an Arbitration Committee and serve the notice on that Committee.
(2) The Minister shall not take any action under subsection (1) where the Minister is satisfied that the matter referred to in a notice of arbitration served on the Minister is a matter
(a) solely related to the amount of compensation that has been previously awarded by an Arbitration Committee and that, under the award, the amount is not subject to a review at the time the notice is served; or
(b) to which the arbitration procedures set out in this Part do not apply.
. . .
97. (1) An Arbitration Committee shall determine all compensation matters referred to in a notice of arbitration served on it and in doing so shall consider the following factors where applicable:
(a) the market value of the lands taken by the company;
(b) where annual or periodic payments are being made pursuant to an agreement or an arbitration decision, changes in the market value referred to in paragraph (a) since the agreement or decision or since the last review and adjustment of those payments, as the case may be;
(c) the loss of use to the owner of the lands taken by the company;
(d) the adverse effect of the taking of the lands by the company on the remaining lands of an owner;
(e) the nuisance, inconvenience and noise that may reasonably be expected to be caused by or arise from or in connection with the operations of the company;
(f) the damage to lands in the area of the lands taken by the company that might reasonably be expected to be caused by the operations of the company;
(g) loss of or damage to livestock or other personal property affected by the operations of the company;
(h) any special difficulties in relocation of an owner or his property; and
(i) such other factors as the Committee considers proper in the circumstances.
. . .
112. (1) Subject to subsection (5), no person shall, unless leave is first obtained from the Board, construct a facility across, on, along or under a pipeline or excavate using power-operated equipment or explosives within thirty metres of a pipeline.
(2) Subject to subsection (5), no person shall operate a vehicle or mobile equipment across a pipeline unless leave is first obtained from the company or the vehicle or mobile equipment is operated within the travelled portion of a highway or public road.
. . .
(5) The Board may make orders or regulations governing
(a) the design, construction, operation and abandonment of facilities constructed across, on, along or under pipelines;
(b) the measures to be taken by any person in relation to
(i) the construction of facilities across, on, along or under pipelines,
(ii) the construction of pipelines across, on, along or under facilities, other than railways, and
(iii) excavations within thirty metres of a pipeline; and
(c) the circumstances in which or conditions under which leave under this section is not necessary.
. . .
115. Except as otherwise provided in this Part,
(a) this Act shall be construed as incorporate with a Special Act; and
(b) where the provisions of this Part and a Special Act relate to the same subject-matter, the provisions of the Special Act shall, in so far as is necessary to give effect to the Special Act, be taken to override the provisions of this Part.