Date: 20010402
Docket: T-1859-00
Neutral Citation: 2001 FCT 279
Ottawa, Ontario, Monday the 2nd day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
BOVAR WASTE MANAGEMENT INC.
AND CHEM-SECURITY (ALBERTA) LTD.
Applicants
- and -
DAVID ANDERSON, MINISTER OF THE ENVIRONMENT
and PETER BLACKALL, REGIONAL DIRECTOR,
ENVIRONMENTAL PROTECTION SERVICES,
ENVIRONMENT CANADA
Respondents
[1] The applicants have sought leave to file the supplementary affidavit of Mr. Graham Latonas.
[2] While I have been satisfied that a good reason has been provided for late filing, and that the respondents would not suffer any prejudice as a result of the delay in filing the supplementary affidavit, I have not been persuaded that the supplementary affidavit is relevant to the pending application for judicial review.
[3] The pending application for judicial review is in respect of a Direction granted by the Minister of the Environment and the Regional Director, Environmental Protection Services, Environment Canada. That Direction ordered the applicants to conduct destructive coring and testing activities through a concrete containment structure. The relief sought is an order quashing the Direction.
[4] The grounds for the application are that:
4. The Direction is beyond the jurisdiction of the Minister in that it purports to require the applicants to conduct a destructive coring program when under the Canadian Environmental Protective Act the power of the Minister pertains only to the production of samples already taken and in the possession of the recipient of the Direction;
2. In the alternative, if the Minister is authorized to order the applicants to undertake an investigative program, such power is contrary to the Charter of Rights and Freedoms;
3. The Direction is predicated upon an erroneous interpretation of the Chlorobiphenyls Regulations, SOR/91-152 and upon an unreasonably broad interpretation of the term "Environment"; and
4. The Direction was issued in contravention of the rules of natural justice and procedural fairness in that, among other things, it was based upon one or more erroneous findings of fact, made in a capricious manner and without regard for the materials before the respondents, including the erroneous conclusion that there was useful information to be obtained.
[5] The evidence sought to be admitted by way of the supplemental affidavit was said, in the applicants' original written submissions, to be:
... essential to establish that its judicial review application has not become moot by compliance with the Direction and establishing the quantum of direct costs incurred. In this regard, the testing showed no signs of PCB contamination and, therefore, there are no issues associated with any prosecution based on evidence obtained through an invalid administrative action. The only basis upon which the judicial review application remains relevant so as to warrant consideration of it by the Court is the requirement of the Respondents to pay the costs of complying with the Direction.
[6] That submission was refined somewhat in supplementary written submissions where the applicants assert that it:
... nevertheless remains to be determined if the Direction is beyond the jurisdiction of the Minister of Environment, what expenses may have been incurred by the Applicants in complying with an invalid order and whether the Applicants should be reimbursed for the costs of undertaking the destructive drilling and coring program. The Supplemental Affidavit is directly relevant to these issues.
[7] While there is no doubt that the ultimate assessment of costs in respect of the pending application for judicial review remains a live issue, I accept the respondents' submission that the evidence proffered by the applicants is not properly directed to the quantum of disbursements or items of costs contemplated in the applicable tariff to the Federal Court Rules, 1998. Rather, the claim for "costs" is more properly characterized as a claim for damages. It is settled law that a claim for damages cannot be sustained in a judicial review application.
[8] Even if I am wrong in this regard, I am not convinced that evidence relevant to the quantum of costs need, or indeed should, be filed now as opposed to at any subsequent taxation or assessment of costs ordered after the hearing of the application for judicial review.
[9] I accept as well the respondents' submission that a further impediment to the relevance of the proposed supplementary affidavit is that it is new evidence which was not before the decision-maker when the decision was made to issue the Direction. It is again settled law that an application for judicial review should proceed on the basis of the material that was before the decision-maker and as a general principle evidence extrinsic to the record before the decision-maker may not be introduced. That general principle is subject to the limited exception that in circumstances where the only way "to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court" extrinsic evidence may be admissible: Gitxsan Treaty Society v. Hospital Empl. Union, [2000] 1 F.C. 135 (F.C.A.) at page 143.
[10] Notwithstanding that limited exception, I am not satisfied that in the present case extrinsic evidence is required in order to address a perceived want of jurisdiction. It seems to me that if the applicants wish to argue that the Minister had no jurisdiction to, as they say, download extensive costs under the threat of penalty, that argument is open to them on the current record and the applicants do not require supplemental evidence as to the precise magnitude of the costs incurred in order to make that argument.
[11] In concluding that the evidence is not relevant, I reject the submission of the
applicants that any waiver or estoppel arises from either the respondents' position on the previous motion for an order staying the direction, or by the order and reasons of the Court given in respect of the stay application. In substance the applicants assert in this regard that in denying the stay the Court assumed that the Minister would be liable for the costs which resulted from the Direction.
[12] It is correct that Justice Teitelbaum refused the applicants' motion for a stay on the ground that he was not satisfied that they had established that irreparable harm would arise if the stay was not granted. In his reasons, given orally, Justice Teitelbaum stated:
First of all, I can't see any irreparable harm to Bovar when they say that if the Crown wants to go and take the tests on their own, they can go right ahead and do it. That immediately tells me there's no irreparable harm because if Bovar has to do the tests, all it means is a question of money. It's going to cost Bovar ‘X' thousands of dollars and they have been forced to do the test because of "an invalid order". All Bovar has to do is to make a claim against the respondent, and we can't say that the respondent can't afford to pay whatever the damages may be, so that immediately tells me that there is no irreparable harm. [Underlining added]
[13] I see no waiver or estoppel arising from this determination by the Court. It is in my view consistent with the respondents' position that if the applicants have any claim for damages, the claim should be brought by way of a statement of claim. To that I would add, as I observed at the hearing, that it may be that the applicants would consider it appropriate to move instead for an order under section 18.4 (2) of the Federal Court Act, R.S.C. 1985, c. F-7 directing that the application for judicial review be treated and proceeded with as an action.
[14] With respect to the applicants' suggestion that if the Minister wishes to argue mootness it will be necessary to put additional material before the Court, at this time there is no objection made by the respondents that the proceedings should not go forward on a ground of mootness. Should that change, evidence may well be required from the respondents at which time the applicants may respond to that evidence within the framework set out by the Federal Court Rules, 1998.
[15] To the extent the applicants assert that section 18.1 of the Federal Court Act provides the Court with authority to grant declaratory relief and the jurisdiction to grant declaratory relief may extend to a declaration that damages should be paid, the short answer is that the applicants in this proceeding do not seek declaratory relief. The notice of application seeks only an order quashing the Direction.
[16] For these reasons, in the exercise of my discretion, I have determined that the applicants' motion for leave to file the supplementary affidavit of Graham Latonas should be dismissed.
[17] The respondents sought their costs of the motion. In the circumstances, I consider it appropriate that the respondents shall have their costs of this motion, in the cause.
ORDER
1. It is ordered that the applicants' motion for an order seeking leave to file the supplementary affidavit of Graham Latonas is dismissed.
2. It is ordered that the respondents shall have their costs of this motion, in the cause.
"Eleanor R. Dawson" Judge