Decision Date: December 2, 2016

Panel: Alan Andison

Keywords: Oil and Gas Activities Act – ss. 25(4), 25(5), 72(7); Administrative Tribunals Act – s. 24(2); preliminary decision; extension of time; pipeline; permit

Rodney and Kim Strasky appealed a decision of the Oil and Gas Commission (“Commission”) to issue a pipeline permit to Encana Corporation (“Encana”). The permit authorizes Encana to construct and operate a pipeline, subject to certain conditions, on land that is owned by the Appellants. The appeal was not filed “within 15 days of the day the determination being appealed was made”, which is the appeal period that applies to land owners under section 72(7) of the Oil and Gas Activities Act. The Appellants requested an extension of time to file the appeal pursuant to section 24(2) of the Administrative Tribunals Act, which provides that the Tribunal may extend the time to file an appeal “if satisfied that special circumstances exist”.

The Commission originally mailed a letter to the Appellants on August 12, 2016, notifying them that the permit was issued on that same date. The Commission sent the notice to the Appellants’ address that was provided in the consultation and notification materials which Encana had provided as part of its permit application. However, the notice was returned to the Commission on October 6, 2016, indicating that the address no longer existed due to Canada Post updates. The Commission then obtained an updated address for the Appellants, and re-sent the notice on October 11, 2016. The Appellants filed their appeal on October 18, 2016.

Copies of the permit were provided to the Appellants through other means before October 11, 2016. Encana had included a copy of the permit in an application to the Surface Rights Board, filed on August 16, 2016, which was served on the Appellants. In addition, the Commission provided a copy of the permit to the Appellants’ legal counsel on September 22, 2016.

The Appellants submitted that an extension of time to file the appeal was warranted in the circumstances. The Commission consented to the application. Encana objected to the application.

The Tribunal found that, when the Appellants received the permit with Encana’s Surface Rights Board application, the Appellants were neither notified, nor could they reasonably be expected to be aware, of their right to appeal the permit to the Tribunal. Moreover, although the Commission had emailed a copy of the permit to the Appellants’ counsel, neither the email nor the permit mentioned the Appellants’ right to appeal the permit. Sections 25(4) and (5) of the Oil and Gas Activities Act state that the Commission “must” provide notice of the permit to the relevant land owners, and the notice “must” state that the land owner may appeal the permit, and include the Tribunal’s address. The Appellants did not receive notice in accordance with the Oil and Gas Activities Act until the Commission sent its letter dated October 11, 2016. The Appellants filed their appeal on October 18, 2016, well within 15 days of when they received proper notice.

The Tribunal concluded that the Commission’s failure to provide notice to the Appellants in accordance with sections 25(4) and (5) of the Oil and Gas Activities Act until October 11, 2016, constituted special circumstances that justified granting an extension of time to file the appeal.

Accordingly, the application for an extension of time was granted.