City of Burnaby, Toronto Real Estate Board both lose SCC appeal bids

Two high-profile appeals to the Supreme Court of Canada were dismissed today, but the fight will continue in other courts in one of those cases.

City of Burnaby, Toronto Real Estate Board both lose SCC appeal bids
Burnaby’s legal counsel Gregory McDade says 'opposition to Trans Mountain continues' despite today’s dismissal of appeal to SCC.

Two high-profile appeals to the Supreme Court of Canada were dismissed today, but the fight will continue in other courts in one of those cases.

City of Burnaby v. Trans Mountain Pipeline ULC, et al.

Although Alberta Premier Rachel Notley is hailing the dismissal of the B.C. municipality of Burnaby’s appeal of the approval of the Trans Mountain Pipeline expansion from Alberta through British Columbia, counsel for the City of Burnaby says the municipality will continue the fight.

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“Burnaby’s opposition to Trans Mountain continues,” says Gregory McDade, managing partner at Ratcliff & Company LLP in Vancouver and legal counsel for the City of Burnaby.

In February, the National Energy Board gave permission for the pipeline to start construction on the Burnaby Mountain tunnel entrance, subject to other applicable federal, provincial and municipal permits. The City of Burnaby appealed the NEB decision to the Federal Court of Appeal on the grounds that, in December, the NEB said Trans Mountain did not have to abide by Burnaby’s tree bylaw and its zoning bylaw.

“The question of whether a federal tribunal like the NEB should decide constitutional questions for municipalities remains a live issue,” he told Legal Feeds, adding that Burnaby still has four other outstanding court proceedings against Trans Mountain. ”This was just one of a number.”

Two of the proceedings are with the Federal Court of Appeal, which has reserved judgment; a reference has also been made to the British Columbia Court of Appeal, and the fourth proceeding is before the NEB itself regarding the path of the pipeline to the ocean from Burnaby, McDade says.

At issue is the safety of transporting heavy bitumen through the proposed pipeline expansion and the environmental risks posed to British Columbian municipalities along its path.

“The concept of driving a heavy bitumen through the heart of a major municipality,” beneath schools and residential neighbourhoods, “seems to us to be a bizarre choice,” McDade says. One “major issue” is the planned Burnaby Mountain tank farm, where Trans Mountain intends to store more than five million barrels of crude oil, which would be situated on a hill below Simon Fraser University, he says. If a leak or explosion occurred, “the Burnaby fire department has said there would be no way to fight a fire there,” evidence of which was filed before the National Energy Board during hearings, he adds.

“Burnaby is simply not accepting this pipeline,” says McDade. “Any of these appeals could work their way back up the Supreme Court of Canada. The mayor has said he will not rest and will use all legal means available to him” in fighting the pipeline expansion.

Trans Mountain provided an emailed comment to Legal Feeds:

"We are pleased with today’s decision from the Supreme Court of Canada on the Federal Court of Appeal’s dismissal of the City of Burnaby’s leave to appeal motion.

"In January 2018, the National Energy Board provided its reasons for ruling in Trans Mountain’s favour in response to our Constitutional Question and motion regarding the City of Burnaby’s delays in dealing with our municipal permit applications. The Federal Court of Appeal (FCA) denied the City of Burnaby’s Motion for leave to appeal the NEB decision. The City of Burnaby then sought leave from the Supreme Court of Canada (SCC) to appeal the FCA decision denying Burnaby leave to appeal the NEB decision." 

Toronto Real Estate Board v. Commissioner of Competition

After seven years of litigation, the Toronto Real Estate Board has lost its bid to restrict access to real estate sales figures.

In 2011, Canada’s Commissioner of Competition filed an application with the Competition Tribunal challenging the restrictions that TREB imposed on its members’ use and display of data in the Toronto Multiple Listing Service system. 

The Competition Tribunal agreed that the restrictions — i.e., that real estate sales data for closed deals, including sales prices, house history and neighbourhood property market trends, could be listed only in the MLS system — were anti-competitive, and in 2016, it issued an order for TREB to allow the data to be made public.

“TREB supports innovation and competition, but remains concerned about protecting the privacy rights of home buyers and sellers and is considering how to do that in the context of the Tribunal Order,” said Brian Facey of Blake Cassels & Graydon LLP in Toronto, a member of the legal team representing TREB before the Supreme Court.

TREB now has 60 days to comply with the tribunal order.

“Today’s ruling is a decisive victory for competition, innovation and for consumers,” Matthew Boswell, interim commissioner of competition, said in the Competition Bureau’s press release today. “By removing TREB’s anti-competitive restrictions, home buyers and sellers in the GTA will now have greater access to information and innovative real estate services when making one of the most significant financial decisions of their lives.”

Editor's note: Story updated Aug. 23, 2018 at 5:05 p.m. to include comment from Trans Mountain.

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