The Applicant, Fort McKay First Nation (“FMFN”), sought leave to appeal decisions of the Energy Resources Conservation Board and the Alberta Energy Regulator.

Brion Energy Corporation argued that the Application for Leave to Appeal on the interlocutory decision regarding constitutionality was filed out of time, as it had to be filed within one month of the decision and returnable within two months. The Application for Leave was filed approximately five months after the decision. The Court held that the preferable procedure is not to seek Leave to Appeal interlocutory matters, but to seek Leave to Appeal once the final decision is rendered. The Court held that the interlocutory decision formed part of the final decision, and thus was not out of time and, if it was out of time, the time should be extended.

FMFN was granted Leave to Appeal on the constitutional issue.