Embargo would have immediate negative consequences for BC’s treasury and residents

Environmental Law - Constitutional Issues - General Principles

Alberta adopted Preserving Canada’s Economic Prosperity Act (Act) (Alta.) which empowered Minister of Energy of Alberta to require anyone who wished to export natural gas, crude oil or refined fuels from Alberta to obtain licence. Minister was to consider in requirements for license whether adequate pipeline capacity existed to maximize return on crude oil and diluted bitumen produced in Alberta. British Columbia claimed Act regulated interprovincial commerce, which is federal jurisdiction. Alberta brought motion to strike proceedings, BC brought motion for interlocutory injunction preventing Minister from exercising powers under Act. Alberta’s motion dismissed, BC’s motion granted. Whether Act overstepped provincial jurisdiction was serious issue for trial. Pith and substance of legislation was oil exports and was not limited to primary production, and fell under Parliament’s jurisdiction over interprovincial commerce pursuant to s. 91(2) of Constitution Act, 1867. Act authorized discrimination between provinces. Act sought to limit exportation of petroleum products from Alberta and was only ever contemplated in relation to BC. Minister was enabled, in transparent manner, to stop exports on basis of opinion as to progress of specific pipeline project. Harm to BC would be irreparable and it would be difficult to recover damages. Harm alleged by BC was sufficient to ground interlocutory injunction, even though its realization ultimately depended on Alberta’s will. Embargo on exports to BC would cause considerable increase in price of gasoline and diesel in that province, and could lead to fuel shortages which could, in turn, endanger public safety. Embargo would have immediate negative consequences for BC’s treasury and residents, and it would be impossible to quickly obtain sufficient quantities of fuels from other sources. Balance of convenience favoured granting injunction. Alberta was unable to show public interest of Act. Given strength of BC’s case, little weight given to inconvenience to Alberta in not being able to implement oil embargo.

British Columbia (Attorney General) v. Alberta (Attorney General) (2019), 2019 CarswellNat 4908, 2019 CarswellNat 4909, 2019 FC 1195, 2019 CF 1195, Sébastien Grammond J. (F.C.).

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