Canada: The Alberta Court Of Queen's Bench Strikes British Columbia's Claim To Declare Unconstitutional Alberta's Preserving Canada's Economic Prosperity Act

Last Updated: May 14 2019
Article by Chidinma Thompson and Raminder Arora

Most Read Contributor in Canada, July 2019


In British Columbia (Attorney General) v Alberta (Attorney General), 2019 ABQB 121, the Alberta Court of Queen's Bench struck BC's Claim on the basis that it was premature but reserved BC's right to recommence the action should the Act become law in Alberta in the future. Given the delays by the Federal government in making a decision on the controversial Trans Mountain Pipeline, and pending the outcome of the Reference Re: Proposed Amendments to the Environmental Management Act (BC)1, BC's Claim may be back in Alberta Courts sooner than later.


In May 2018, the Government of British Columbia ("BC") filed a Statement of Claim in the Alberta Court of Queen's Bench seeking a declaration, as guardian of the public interest, that Alberta's Preserving Canadas Economic Prosperity Act2 (the "Act") was unconstitutional. The Government of Alberta ("Alberta") applied to strike the Claim on the basis that it was premature and inappropriate for the consideration by the Court.

The Act was passed by the Alberta legislature in May 2018 in response to escalating tensions between Alberta, BC, and the Federal Government over the expansion of the Trans Mountain pipeline which will increase its capacity and provide Canadian crude oil access to global energy markets. The Act allows Alberta to control the exports of natural gas, crude oil, or refined fuels from the Province on the basis of "public interest".3 The Act was given Royal Assent in May 2018 but has not been proclaimed.

BC claimed that the Act was enacted to counteract steps taken by BC in opposition to the building of the Trans Mountain pipeline.4 It relied upon the April 2018 Hansard comments of the Alberta Energy Minister that the Act was to limit resources being exported to BC and to "inflict economic pain upon them so that they realize what their decisions mean."5 BC argued that the Act fell outside Alberta's jurisdiction because it was inconsistent with section 91(2) and section 92A, and not supported by section 121, of the Constitution Act, 1867.6 Section 91(2) of the Constitution Act, 1867 grants Canada the exclusive authority to legislate in relation to interprovincial and international trade, except provincial laws relating to exports as they are authorized under section 92A of the same act.7 Section 121 states that all articles of "Growth, Produce, or Manufacture" from one Province be admitted "free" into each of the other Provinces.8 BC provided evidence that approximately 55% of its gasoline and 71% of its diesel was imported from Alberta refineries and that BC will be unable to replace that supply from viable sources. Alberta argued that the Court has no jurisdiction to interfere with the legislative process in the manner proposed by BC. Alberta argued that the Act is not law until proclaimed.9

The Court found that the application before it was not for interim injunction but for declaratory relief and hence the authorities relied upon by British Columbia did not apply. The Court found BC's Claim to be premature given that the Act is not in force. Applying the four-part test for declaratory relief outlined by the Supreme Court of Canada in Ewert v Canada,10 and a fifth element that a declaration can only be granted if it will have practical utility, the Court refused to exercise its discretion to grant BC declaratory relief when the dispute before the court is only theoretical or merely hypothetical.11 The Court struck BC's Claim and reserved BC's right to recommence the action should the Act become law in Alberta in the future.


This decision comes at an interesting time, especially considering Canada's postponement of its decision on the Trans Mountain pipeline expansion and the BC Reference Case which was heard at the British Columbia Court of Appeal in March 2019. The BC Reference Case is to determine whether the proposed changes to the BC Environmental Management Act are outside the jurisdiction of BC pursuant to the Constitution Act, 1897. More recently, Alberta elected a new United Conservative Party majority government. The Premier designate, Jason Kenney, was noted to have renewed interest in immediately proclaiming the Act should BC continue to "obstruct" the Trans Mountain pipeline expansion.12 Much may depend on the Federal government's decision on the Trans Mountain pipeline expansion, which is now scheduled to be made in June 2019, and the BC Court of Appeal decision in BC Reference Case, which remains under reserve.

The disputes between the two Provinces in respect of Trans Mountain pipeline expansion may not be over. BC has already noted its interest to recommence the Claim should Alberta proclaim the Act into law.


1 British Columbia Court of Appeal File No. CA45253 [BC Reference Case].

2 SA 2018, c P-21.5.

3 Ibid, s 2.

4 British Columbia (Attorney General) v Alberta (Attorney General), 2019 ABQB 121 [British Columbia] at para 3.

5 Ibid at para 4.

6 Attorney General of British Columbia's Statement of Claim [Claim] at para 2.

7 Claim at para 27.

8 The Constitution Act, 1867, 30 & 31 Vict, c 3, s 121.

9 British Columbia at paras 10-12.

10 2018 SCC 30.

11 Ibid at paras 17-18, 21.

12 Simon Little, Global News, "See you in court: B.C. responds to Jason Kenney's threat to 'turn off the taps' day 1, if elected," April 8, 2019.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions