Burnaby (City) v. Trans Mountain Pipeline ULC

2017 BCCA 132 Burnaby (City) v. Trans Mountain Pipeline ULC COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Burnaby (City) v. Trans Mountain Pipeline ULC, 2017 BCCA 132 Date: 20170327 Docket: CA43285 Between: City of Burnaby Appellant (Plaintiff) And Trans Mountain Pipeline ULC Respondent (Defendant) And The National Energy Board Respondent (Defendant) Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice Fenlon The Honourable Madam Justice Dickson On appeal from: An order of the Supreme Court of British Columbia, dated November 5, 2015 (Burnaby (City) v. Trans Mountain Pipeline ULC, 2015 BCSC 2140, Vancouver Docket No. S146911). Counsel for the Appellant: G.J. McDade, Q.C. M.L. Bradley Counsel for the Respondent Trans Mountain Pipeline ULC: W.C. Kaplan, Q.C. M.E. Killoran, Q.C. M. Good Counsel for the Respondent The National Energy Board: P. Johnston Place and Date of Hearing: Vancouver, British Columbia December 8, 2016 Place and Date of Judgment: Vancouver, British Columbia March 27, 2017 Written Reasons by: The Honourable Madam Justice Fenlon Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice Dickson Summary: At issue on appeal is whether the trial judge erred in determining that the National Energy Board had jurisdiction to determine the operability or applicability of municipal bylaws in the exercise of its power under its enabling statute. Held: Appeal dismissed. The NEB has jurisdiction to resolve constitutional conflicts between the powers granted under the NEB Act and Burnaby's bylaws. Reasons for Judgment of the Honourable Madam Justice Fenlon: Introduction [1] The City of Burnaby appeals the ruling of a summary trial judge that the National Energy Board (the "NEB") has jurisdiction to limit Burnaby's ability to enforce bylaws when they conflict with the National Energy Board Act, R.S.C., 1985, c. N-7 (the "NEB Act"). Background [2] Trans Mountain moves petroleum products through Alberta and British Columbia by means of a pipeline routed through Burnaby to a terminal on the shoreline of Burrard Inlet. In December 2013, Trans Mountain applied to the NEB for permission to twin its existing pipeline ("the Expansion Project"). [3] The Expansion Project involves work on the existing Trans Mountain right-of-way and new locations in Burnaby, including the Burnaby Mountain Conservation Area. To assess Trans Mountain's preferred corridor for the Expansion Project, the NEB required Trans Mountain to conduct field studies on Burnaby Mountain. Those studies required Trans Mountain to cut down trees, clear vegetation, drill boreholes and operate heavy machinery. It is undisputed that these activities contravened several of Burnaby's bylaws. [4] The trial judge described the dispute between the parties this way: [5] As a matter of Canadian constitutional law, the Pipeline is an interprovincial undertaking as contemplated in s. 91(29) read with s. 92(10)(a) of the Constitution Act, 1867. The Pipeline is situated, constructed and operated under the exclusive jurisdiction of the National Energy Board ("NEB" or "Board"), acting pursuant to the provisions of the National Energy Board Act, R.S.C. 1985, c. N-7 ("NEB Act" or "Act"), a federal statute. [6] Burnaby and Trans Mountain are at an impasse. Burnaby opposes the Expansion Project, certainly insofar as it affects Burnaby. Burnaby is one of approximately 400 intervenors at the hearings the NEB is holding for the Expansion Project. [7] Burnaby has lawfully enacted bylaws, including in particular Burnaby Parks Regulation Bylaw 1979 (Parks Bylaw) and Burnaby Street and Traffic Bylaw 1961 (Traffic Bylaw), which it says give it powers over the Expansion Project. In essence, Burnaby asserts that it can control through these bylaws the routing of the Expansion Project in Burnaby and the engineering studies needed to determine the route. Burnaby appears from the filed evidence to be using the bylaws to make Trans Mountain's preliminary work on the Expansion Project difficult, if not impossible, to undertake. [8] Trans Mountain submits that the routing of an interprovincial pipeline, including engineering feasibility studies necessary for determining a pipeline's route, are within the exclusive jurisdiction of Parliament acting through the NEB Act and the NEB. [9] In the result, there is in this hearing a contest between the applicability of valid provincial law in the form of Burnaby's bylaws and valid federal law as found in the NEB Act and the NEB's resulting jurisdiction over interprovincial pipelines. [Emphasis added.] [5] In order to resolve the impasse, Trans Mountain applied for a ruling from the NEB confirming its right to do the studies under s. 73(a) of the NEB Act: 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; (I note that s. 75 of the NEB Act requires a company to "do as little damage as possible" and fully compensate those harmed through the exercise of rights under the Act.) [6] On August 19, 2014, the NEB issued Ruling 28 confirming that s. 73(a) of the NEB Act authorized Trans Mountain to enter onto Crown or private land in the intended route of its pipeline to make surveys and examinations to provide the NEB with the information it required to assess the Expansion Project. The NEB also confirmed that Trans Mountain could enter Burnaby's land without Burnaby's consent. [7] Burnaby did not appeal Ruling 28, but on September 2, 2014, when Trans Mountain started the engineering studies on Burnaby Mountain, Burnaby employees served Trans Mountain workers with notices of bylaw violations. [8] On September 3, Trans Mountain applied to the NEB again, this time for an order directing Burnaby to give it access to city lands to complete the required studies. Burnaby stated its intention to respond to the motion and the NEB directed the parties to file submissions by September 15. On September 8, Burnaby filed the underlying notice of civil claim in this proceeding. It named Trans Mountain and the NEB as defendants and sought the following relief: 1. An interim and permanent Injunction to restrain Trans Mountain Pipeline ULC from continuing to carry on works on City of Burnaby owned land in contravention of the City of Burnaby's Bylaws. 2. A Declaration that the Ruling 28 of August 19, 2014 of the National Energy Board does not have the effect of overriding or declaring inapplicable the City of Burnaby's Bylaws. 3. A Declaration that the National Energy Board does not have the constitutional jurisdiction to issue an order to the City of Burnaby that directs or limits the City in the enforcement of its Bylaws. [9] On September 11, Burnaby sought an interlocutory injunction under s. 274 of the Community Charter, S.B.C. 2003, c. 26 to prevent Trans Mountain from violating its bylaws. Section 274 expressly gives the British Columbia Supreme Court jurisdiction to enforce bylaws: (1) A municipality may, by a proceeding brought in Supreme Court, enforce, or prevent or restrain the contravention of, (a) a bylaw Madam Justice Brown dismissed the application. She found that: (1) the matter was properly before the NEB; (2) Burnaby could appeal any adverse NEB findings to the Federal Court; and (3) it could seek an injunction in that court. [10] Eight days after Madam Justice Brown's decision, the NEB directed Trans Mountain to state a constitutional question as part of its pending application for access to Burnaby's lands. Trans Mountain framed the constitutional question as follows: does the NEB have "legal authority to determine that Burnaby's specific bylaws that Trans Mountain is alleged to have breached are inapplicable, invalid, or inoperative in the context of Trans Mountain's exercise of its powers under [section] 73(a) of the NEB Act." On October 23, the NEB issued Ruling 40, essentially responding "yes" to the constitutional question: The Board has decided that: 1) the Board has jurisdiction to determine that specific Burnaby bylaws are inoperative or inapplicable to the extent they conflict with or impair the exercise of Trans Mountain's powers under paragraph 73(a) of the NEB Act; 2) the doctrine of federal paramountcy, or alternatively, interjurisdictional immunity renders the Impugned Bylaws inapplicable or inoperative for the purposes of Trans Mountain's exercise of its powers under paragraph 73(a) of the NEB Act; 3) the Board has authority under subsection 13(b) of the NEB Act to issue an order against Burnaby; and 4) the facts necessitate the granting of such an order, and an order is attached. [11] Burnaby immediately filed an application for leave to appeal Ruling 40 to the Federal Court of Appeal. Leave was denied. [12] The trial judge described further developments in the British Columbia Supreme Court as follows: [35] On the judicial front in this province's courts, Burnaby applied to the Court of Appeal seeking leave to appeal Brown J.'s order dismissing Burnaby's injunction application. Neilson J.A. in chambers denied leave on November 27, 2014, as reported at 2014 BCCA 465. When the matter was argued before Neilson J.A. on November 19, 2014, the parties were awaiting the Federal Court of Appeal's decision on Burnaby's leave application from Ruling 40. Neilson J.A., at paragraphs 29-40 of her reasons, concluded that in the face of Ruling 40 and the related leave application, Burnaby pursuing the appeal of Brown J.'s order amounted to a collateral attack and an abuse of process. She denied leave to appeal Brown J.'s order. [36] Burnaby pressed on and asked a three member division of the Court of Appeal to vary the order of Neilson J.A. As reported at 2015 BCCA 78, the Court of Appeal dismissed the application to vary on February 13, 2015. By then, it will be recalled, the Federal Court of Appeal had denied Burnaby leave to appeal Ruling 40. The issue in the Court of Appeal by February 2015 was mootness because Trans Mountain had by then completed the engineering work on Burnaby Mountain which had given rise to the injunction application before Brown J. The application was dismissed on the mootness ground, but the Court added that it remained open for Burnaby to proceed in this Court on the application for a declaration based on the constitutional issue. At trial [13] Burnaby proceeded with the constitutional issues by way of summary trial. Primarily, it sought "A declaration that the National Energy Board does not have the constitutional jurisdiction to issue an order to the City of Burnaby that directs or limits the City of Burnaby in the enforcement of its bylaws." Burnaby also asked the court below to rule on the specific constitutional questions raised by the parties: 1. Are Burnaby's bylaws inoperative to the extent they conflict with actions taken under the authority of s. 73 of the NEB Act? 2. Are Burnaby's bylaws inapplicable to actions taken under s. 73 of the NEB Act by operation of the doctrine of interjurisdictional immunity? 3. Does the NEB Act and in particular s. 73(a) authorize the contravention of Burnaby's bylaws and orders limiting enforcement of those bylaws? 4. Is s. 73(a) in relation to property civil rights in the Province and therefore ultra vires the Parliament of Canada? 5. Is the NEB Act inapplicable to Burnaby in the enforcement of its bylaws? As the trial judge noted, there is considerable overlap in the declaration and numbered questions. [14] It was common ground at trial that the court had jurisdiction to address the constitutional questions. Indeed, despite the substratum of the dispute having fallen away, this Court, reviewing Madam Justice Neilson's order, noted that Burnaby could proceed with its application for a declaration on the constitutional issues: 2014 BCCA 465 at para. 7. The trial judge concluded, however, that it remained open to him to decline to exercise jurisdiction, and he did so on the basis that the summary trial application amounted to an abuse of process, saying: [44] If this Court addresses the constitutional questions, and comes to the opposite result of that reached by the NEB on essentially the same questions, what is the result? Does Trans Mountain brandish the NEB ruling and Burnaby pull this Court's ruling out of its pocket when they confront one another on Burnaby Mountain? The result would be unworkable and likely chaotic. [49] Presumably, if Burnaby had obtained leave in the Federal Court of Appeal to appeal NEB Ruling 40, and then had succeeded on the merits of the appeal, it would not have proceeded in this Court on this application. It would not have wanted to risk receiving a contrary and inconsistent result from this Court. Burnaby is here because it was unsuccessful elsewhere. In my view, it is an abuse of process, as that phrase is used in this setting, for Burnaby to be seeking here the relief it failed to obtain at the NEB and in the Federal Court of Appeal. [Emphasis added.] [15] The trial judge went on nonetheless to address the constitutional questions in the event that he was found to have erred in declining jurisdiction: [83] Addressing the declaration first, the NEB has the constitutional power to direct or limit Burnaby in the enforcement of its bylaws when the bylaws interfere with or block the NEB in its regulation of the Trans Mountain Pipeline and the Expansion Project. [84] Question 1 is answered in the affirmative. Burnaby's bylaws are constitutionally inoperative to the extent that they conflict with actions taken under the authority of s. 73 of the NEB Act. [85] Question 2 is answered in the affirmative. Burnaby's bylaws are constitutionally inapplicable to actions taken under s. 73 of the NEB Act in respect of a federally regulated, interprovincial undertaking, by operation of the doctrine of interjurisdictional immunity. [86] Regarding question 3, the NEB Act, and in particular s. 73(a), apply to override municipal bylaws, and authorize the contravention of municipal bylaws, including Burnaby's bylaws, and provide the authority to direct or limit a municipality in the enforcement of its validly-enacted bylaws. [87] Regarding question 4, the NEB Act is not ultra vires the Parliament, and has force and effect in respect of Burnaby's enforcement of its bylaws. [88] Regarding question 5, the NEB Act is constitutionally applicable to the municipality of Burnaby in the enforcement of its bylaws concerning land use planning, protection of the local environment and regulation of local traffic, where the bylaws impede or block the NEB acting within its jurisdiction, and companies operating pursuant to its direction. [16] In summary, the trial judge concluded that the NEB had jurisdiction to address the constitutional issues and had correctly determined that Burnaby's bylaws were inapplicable or inoperative in relation to the work conducted by Trans Mountain under s. 73 of the NEB Act. On appeal [17] I begin by noting the narrow issue raised by Burnaby on this appeal. Burnaby originally appealed the trial judge's decision to decline jurisdiction and his rulings on the constitutional questions. At the hearing, however, Burnaby abandoned its appeal from the order declining jurisdiction and all of the constitutional rulings other than the judge's declaration that the NEB had jurisdiction to issue an order to the City of Burnaby that directs or limits the City of Burnaby in the enforcement of its bylaws. [18] The issue, as framed by Burnaby, references the jurisdiction to make an order against Burnaby, but there can be no dispute that the NEB has the authority to make orders under ss. 12 and 13 of the NEB Act. Burnaby is really challenging the jurisdiction of the NEB to make the decision underlying the order, that is, to decide which of two valid laws prevails when they come into direct conflict. Although the initial dispute over the work on Burnaby Mountain has concluded, the question of the NEB's jurisdiction with respect to Burnaby's bylaws will likely be an ongoing issue as the various steps in the Expansion Project proceed. [19] Burnaby raises two main arguments in support of its position that the trial judge erred in assuming the NEB had jurisdiction to address the constitutional conflict between Burnaby's bylaws and the NEB Act. First, it submits that the decision of the Supreme Court of Canada in Windsor (City) v. Canadian Transit Co., 2016 SCC 54, (released the morning of the hearing of the appeal), is dispositive of the issue. Second, it argues there is no jurisprudence that recognizes the authority of a federal tribunal to declare municipal bylaws invalid. 1. Is Windsor dispositive? [20] Burnaby argues that the Supreme Court of Canada in Windsor definitively ruled that the Federal Court (and by implication federal tribunals) does not have jurisdiction to decide whether a city's bylaws apply to a federal undertaking -- such issues are to be addressed only by the superior court of the province or territory in which a dispute arises. I would not accede to this argument for the reasons that follow. [21] Windsor involved the company which owns and operates the Canadian half of the Ambassador Bridge connecting Windsor, Ontario and Detroit, Michigan, which was incorporated by an Act to Incorporate the Canadian Transit Company (CTC Act) in 1921. The CTC Act also declared the works and undertakings of the Company to be for "the general advantage of Canada", triggering federal jurisdiction under the Constitution Act, 1867. [22] The company purchased more than 100 residential properties in Windsor intending eventually to demolish the homes and use the land to maintain and expand the bridge and its facilities. Most of the homes are vacant and in disrepair. The City of Windsor issued repair orders under a municipal bylaw. The company has not complied with the orders. It takes the position that it is not required to comply because the bridge is a federal undertaking. The parties have been engaged in proceedings relating to those repair orders in the Ontario Superior Court of Justice. The company has also applied to the Federal Court for declarations that it has certain rights under the CTC Act which supersede the bylaw and the repair orders issued under it. The city moved to strike the company's application on the ground that the Federal Court lacked jurisdiction to hear the application. The Federal Court agreed and struck the company's notice. The Federal Court of Appeal reinstated the application finding that the Federal Court had jurisdiction over the dispute. [23] The Supreme Court of Canada disagreed. Writing for a five judge majority, Madam Justice Karakatsanis described the issue this way: [3] This appeal deals only with the preliminary issue of whether the Federal Court has jurisdiction to decide whether the Company must comply with the City's by-laws and repair orders. The City says only the Ontario Superior Court of Justice has jurisdiction to settle the issue. [4] I agree with the City: the Federal Court does not have jurisdiction to decide whether the City's by-laws apply to the Company's residential properties. Rather, the issue must be decided by the Ontario Superior Court of Justice. I would allow the appeal. [Emphasis added.] [24] Burnaby submits that Windsor stands for the general principle that only provincial and territorial superior courts have jurisdiction to adjudicate conflicts between municipal bylaws and federal undertakings. With respect, that proposition applies Windsor too broadly. The company in Windsor was not seeking to exercise a right granted by a federal statute which brought it into conflict with municipal bylaws. Rather, it argued that the Federal Court had jurisdiction to hear the dispute simply because the dispute involved a federal undertaking. The majority held that did not suffice; since the Federal Court is not a court of inherent jurisdiction, an applicant seeking relief in that court must do so pursuant to an act of Parliament or other express authority. [25] The company argued that seeking relief under s. 23(c) of the Federal Courts Act, R.S.C., 1985, c. F-7 was enough to give the Federal Court jurisdiction. Section 23(c) provides: 23 Except to the extent that jurisdiction has been otherwise specially assigned, the Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under an Act of Parliament or otherwise in relation to any matter coming within any of the following classes of subjects: (c) works and undertakings connecting a province with any other province or extending beyond the limits of a province. [26] The majority did not accept that submission, and concluded s. 23(c) does not, on its own, confer the requisite jurisdiction: [41] Quebec North Shore makes clear that s. 23 grants jurisdiction to the Federal Court only when the claimant is seeking relief under federal law. As I read Quebec North Shore, the implication is that the claimant's cause of action, or the right to seek relief, must be created or recognized by a federal statute, a federal regulation or a rule of the common law dealing with a subject matter of federal legislative competence. This is what it means to seek relief "under" federal law in s. 23. [45] The Federal Court of Appeal in this case did not consider whether the Company was seeking relief under federal law, nor did it refer to Quebec North Shore. The court's paraphrase of s. 23 (c) -- that it empowers a party to seek a declaration in relation to works and undertakings connecting a province with any other province or extending beyond the limits of a province (para. 27) -- suggests it is sufficient if the subject matter of the litigation is an extra-provincial undertaking. This paraphrase does not acknowledge or give any meaning to the requirement that relief be sought "under an Act of Parliament or otherwise". [55] When a party seeks relief under provisions such as these, s. 23 may grant jurisdiction to the Federal Court, assuming the other requirements of s. 23 are met. But a person cannot seek relief under s. 23 itself. It does not create any right of action. It merely confers on the Federal Court jurisdiction to provide relief that a person can otherwise seek "under an Act of Parliament or otherwise". [Emphasis added.] [27] The present case is readily distinguishable from Windsor. Unlike the company in Windsor, Trans Mountain applied under s. 73 of the NEB Act, "an Act of Parliament", to enforce its right to enter onto municipal land to conduct its work in relation to the Expansion Project. The Federal Court of Appeal, when it considered and declined to grant leave to appeal the NEB's decision, therefore had a statutory grant of jurisdiction and the authority to address the bylaw dispute between the company and the municipality. In my view, Windsor does not assist Burnaby either to challenge the NEB's jurisdiction or the validity of the Federal Court of Appeal's decision to deny leave to appeal. 2. Do tribunals have jurisdiction to determine conflicts between federal and provincial powers? [28] Windsor dealt with an application made directly to the Federal Court, while the present case involves a decision at first instance by the NEB which was reviewable by the Federal Court of Appeal. Burnaby submits the NEB, in Ruling 40, went well beyond the accepted role of a federal tribunal. In written argument, Burnaby put its position this way: This appears to be the first time in Canadian legal history that any federal tribunal has been held to have the constitutional jurisdiction to make determinations in respect of the application or operation of provincial or municipal laws on an application to stop the enforcement of those laws. Previously that power has only been exercised by the provincial superior courts. This represents a serious departure from prior jurisprudence. [29] Burnaby recognizes that s. 12 of the NEB Act gives the Board authority to consider all questions of law, including constitutional questions, but Burnaby argues that authority is restricted to constitutional determinations relating to the NEB's own enabling legislation, and does not extend to laws outside of that statute, such as municipal bylaws. Burnaby also submits that the NEB cannot make formal declarations of invalidity, inapplicability or inoperability, remedies that can be granted only by the superior courts of each province. I will address each point in turn. (a) Authority to consider laws outside of the NEB Act [30] In my view, and with respect, Burnaby has mischaracterized the scope of a tribunal's authority to interpret its enabling statute. Boards and tribunals must take into account all applicable laws, both federal and provincial. Boards and tribunals must also act in accordance with the supreme law of the land, the constitution: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 at 13-14; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54 at para. 28; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16 at paras. 35-37. [31] The Supreme Court of Canada addressed the authority of a tribunal to resolve constitutional conflicts involving the division of powers in Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55. In that case, the B.C. Ministry of Forestry seized logs cut by Mr. Paul, who, in response, asserted an Aboriginal right to cut the timber to modify his house. He argued that s. 96 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 did not apply to him insofar as it was inconsistent with his Aboriginal rights under the Constitution. Mr. Paul appealed to the Forest Appeals Commission. The Commission determined, as a preliminary issue, that it had the authority to address the Aboriginal rights issues raised on the appeal. [32] The Supreme Court addressed the jurisdiction of the Commission at paras. 22 and 23: While there are distinctions between administrative tribunals and courts, both are part of the system of justice. Viewed properly, then, the system of justice encompasses the ordinary courts, federal courts, statutory provincial courts and administrative tribunals. It is therefore incoherent to distinguish administrative tribunals from provincial courts for the purpose of deciding which subjects they may consider on the basis that only the latter are part of the unitary system of justice. The conclusion sought by [Mr. Paul] would pose intractable difficulties for administrative tribunals in the execution of their tasks. A provincially constituted board cannot respect the division of powers under the Constitution Act, 1867 if it is unable to take into account the boundary between provincial and federal powers. For example, in Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65, the Law Society could only stay within the limits of its jurisdiction to review a prosecutor's ethical breach if it considered federal law relating to prosecutorial discretion. Indeed, a multitude of administrative tribunals, both provincial and federal, routinely make determinations respecting matters within the competence of the other legislator. Provincial boards may have an express statutory mandate to pronounce upon federal legislation: Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 92.1; Workers' Compensation Act, S.N.S. 1994-95, c. 10, s. 48; Workers Compensation Act, R.S.B.C. 1996, c. 492 (enabling legislation of provincial boards directing them to interpret and apply federal income tax, pension and employment insurance legislation). Alternatively, the necessity to consider a question of constitutional or federal law may simply arise in the course of a primary determination: Buhs v. Board of Education of Humboldt Rural School Division No. 47 (2002), 217 Sask. R. 222, 2002 SKCA 41, at para. 31 (municipal tax Board of Revision could hear assessment appeal on ground that property subject to aboriginal title). In short, in applying their enabling legislation, boards must take into account all applicable legal rules, both federal and provincial. I therefore decline to accept [Mr. Paul's] argument and its logical extension that the practices just described are constitutionally impermissible. [Emphasis added.] [33] In the present case, the issue raised before the NEB concerned its enabling statute, and in particular s. 73 of the NEB Act. The NEB was required to decide whether Trans Mountain could proceed with the work even though it would contravene Burnaby's bylaws. It could not make that decision without applying the constitutional law doctrines of paramountcy and interjurisdictional immunity. [34] The authority of the NEB to address division of powers under the Constitution Act, 1867 was addressed by Madam Justice Brown in the injunction hearing: [37] The NEB is given powers pursuant to its Act that include s. 11 that provides it is a court of record with all powers, rights and privileges as are vested in the Superior Court of Record. By s. 12 of the Act, it is given full and exclusive jurisdiction to inquire into, hear, and determine any matter, and has full jurisdiction to hear and determine all matters whether of law or fact. [38] By s. 13 of the Act, the NEB is given the power to make mandatory orders. [39] The NEB has jurisdiction to determine the constitutional issues that are relevant to the exercise of its authority: Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54 at para. 28; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55 at para. 39; Calgary (City ) v. Canadian Natural Resources Limited, 2010 ABQB 417 at paras. 80-86. [40] In Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, the Supreme Court of Canada said that, while an administrative tribunal cannot issue a formal declaration of invalidity (assuming, for example, that the NEB determined that the Burnaby bylaws were invalid in this context), which is a remedy exercisable only by the Superior Courts, the tribunal may treat any impugned provision as invalid for the purposes of the matter before it. Therefore, although it could not issue a declaration that s. 73 of the Act or the Burnaby bylaws were invalid, nonetheless, the NEB would be able to treat the impugned provision as invalid for the purposes of the matter before it. I agree with this analysis. Burnaby's contention that the NEB exceeded its jurisdiction and struck out into uncharted constitutional waters when it considered the applicability of laws outside its enabling statute is, with respect, without merit. (b) Jurisdiction of the NEB to make a declaration of invalidity [35] I turn next to Burnaby's submission that the NEB does not have jurisdiction to make formal declarations of invalidity in relation to provincial or municipal laws. Although (as Madam Justice Brown observed in the quotation above) that is a correct statement of the law in the sense that only provincial and territorial superior courts can make general declarations of invalidity, in my view Burnaby has mischaracterized the scope of the declarations made by the NEB in Ruling 40. The NEB did not make a general declaration that Burnaby's bylaws were invalid, inapplicable or inoperative. Rather, it made a limited declaration in relation to the matter before it, determining that the bylaws did not apply to Trans Mountain's work under s. 73 of the NEB Act. Conclusion [36] In my view, the trial judge did not err in concluding that the NEB had jurisdiction to resolve the constitutional conflict between Burnaby's bylaws and the powers granted under the NEB Act. It follows that I would dismiss the appeal. "The Honourable Madam Justice Fenlon" I AGREE: "The Honourable Mr. Justice Frankel" I AGREE: "The Honourable Madam Justice Dickson"