Consequences of Recusal
In August, TIK and our lawyers at Ecojustice filed a Notice of Motion demanding the recusal of two of the National Energy Board's Energy East hearing panelists due to meetings that created a reasonable apprehension of bias. On September 9, they agreed with us - and the entire panel recused themselves. Additionally, the Board chair and vice-chair also recused themselves from administrative duties related to the project review. Now we look at what comes next.
On September 22, TIK and Ecojustice submitted a letter to the NEB that follows on one we shared earlier this month. In the letters, we fully explain the consequences of a recusal due to the reasonable apprehension of bias: the entire Energy East hearings to date are void, and the review must start again with a new panel in place.
The "reasonable apprehension of bias" stemmed from undisclosed meetings that two of the former Energy East hearing panelists (one of whom was the Board vice-chair) and the Board chair held with then-TransCanada lobbyist Jean Charest, back in early 2015, where Energy East was discussed. Taking meetings with a project proponent while a project is under review is subject to numerous strict safeguard procedures in the rules of conduct for the National Energy Board because it could allow the reviewers' impartiality to be compromised - and those safeguards were disregarded.
In our letters, we explain that once a proceeding has been tainted by the apprehension of bias, it is impossible to know which decisions made by that review panel were influenced by that potential bias. Thus, it is impossible to trust in the impartiality of the proceedings themselves. In legal language, there is no remedy for a review tainted by a reasonable apprehension of bias. The only solution is to start the void the proceedings all over again.
It's now up to the government to appoint new members to the National Energy Board, as the Board currently doesn't have Francophone members to serve on a new panel. Once those appointments have been made, a new panel will need to be formed, and the Board will need to decide how to restart the process. Stay tuned!