Date: 19990519
Docket: T-1586-98
BETWEEN:
JOHN R. LAVOIE
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS
KAGIANO POWER CORPORATION AND
OJIBWAYS OF THE PIC RIVER FIRST NATION
Respondents
REASONS FOR ORDER
EVANS J.
| A. Introduction |
[1] This is a motion to strike the applicant"s notice of application for judicial review. Although the Federal Court Rules, 1998 SOR/98-106 do not expressly provide for such a motion, it is accepted that it is one that the Court may grant: David Bull Laboratories (Canada Inc.) v. Pharmacia Inc. [1995] 1 F.C. F88 (F.C.A.); Agawa v. Hewson (F.C.T.D.; T-764-98; June 18; 1998).
[2] It is equally clear, however, that a motion to strike a notice of application for judicial review should be granted only "in the rarest of circumstances" (Agawa v. Hewson, supra ), or in "very exceptional" cases where the originating notice "is so clearly improper as to be bereft of any possibility of success" (David Bull Laboratories, supra , at page 600). This is because of the summary nature of the application for judicial review and the strict timetable applicable to it, and a concern that time and resources, both public and private, not be wasted on largely duplicative hearings. Normally, as Strayer J.A. pointed out in David Bull Laboratories, supra (at pages 596-597),The direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself.
[3] While acknowledging the heavy burden that they must discharge in order to succeed, the respondents maintain that this is one of those "very exceptional" cases in which the motion to strike should be granted. Their main argument is that, even if the applicant establishes each of the grounds of review on which he relies, the Court would be bound to dismiss the application because none of the relief sought would have any practical effect. Remedial orders will not be granted that can serve no useful purpose, but constitute merely an exercise in futility.
[4] Counsel for the applicant, however, emphasized the legal and factual complexities of the issues raised by the application for judicial review and warned the Court not to stray into questions that could only properly be decided on the basis of the entire record, not the relatively limited record prepared for this motion. On the material before it, she submitted, it was not open to the Court to conclude that the application would inevitably fail by virtue of the futility of granting the relief that the applicant seeks.
| B. Background |
[5] John R. Lavoie is a trapper and an environmentalist who lives in Northern Ontario in the vicinity of the hydro-electric generating facility that has been constructed on the Kagiano River at the crest of Twin Falls by the Kagiano Power Corporation. He brought an application for judicial review because he was concerned about the adverse impact that the construction and operation of this power plant would have on fish and fish habitat.
[6] In the application he alleged that decisions made by the Minister of Fisheries and Oceans authorizing Kagiano Power Corporation to proceed, and by the Minister of Indian and Northern Affairs to fund the Pic River First Nation"s participation in the project, were unlawful because not all the relevant documents were made public in accordance with the Canadian Environmental Assessment Act SC 1992, c. 37, and other statutory procedural requirements were not followed.
[7] Ministerial permits were issued under the Fisheries Act R.S.C. 1985, c. F-14 in July 1998, and the application for judicial review was filed early in August of that year. A motion by the applicant for an interlocutory injunction to restrain the construction of the facility was dismissed by Hugessen J. on August 25 (T-1586-98), on the ground that irreparable damage had not been established, and the balance of convenience did not favour the applicant.
[8] After that, matters did not proceed very quickly: the applicant sought disclosure of a large volume of documents from the Minister and there were disputes about the relevance and confidentiality of some of them. In April 1999 the Pic River First Nation received its funding.
[9] Meanwhile, the construction of the dam and generating facility proceeded apace in compliance with the authorizations and the conditions that they contained, so that, when the present motion was filed, construction of the facility was virtually completed, and the turbines and generators had been purchased and were awaiting installation. By the time that the application for judicial review is scheduled to be heard in August of this year, it is anticipated that the power station will be fully operational and producing electricity.
[10] The principal relief requested by Mr. Lavoie is that the decisions of the Ministers" be quashed for non-compliance with its procedural provisions of the Canadian Environmental Assessment Act noted above, which are designed to ensure an adequate opportunity for public participation in the assessment process.
| C. Legislation |
[11] The provisions of the Fisheries Act relevant to this proceedings are as follows:
| 32. No person shall destroy fish by any means other than fishing except as authorized by the Minister or under regulations made by the Governor in Council under this Act. |
32. Sauf autorisation émanant du ministre ou prévue par les règlements pris par le gouverneur en conseil en application de la présente loi, il est interdit de causer la mort de poissons par d'autres moyens que la pêche. |
| 35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat. |
35. (1) Il est interdit d'exploiter des ouvrages ou entreprises entraînant la détérioration, la destruction ou la perturbation de l'habitat du poisson. |
| (2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act. |
35 (2) Le paragraphe (1) ne s'applique pas aux personnes qui détériorent, détruisent ou perturbent l'habitat du poisson avec des moyens ou dans des circonstances autorisés par le ministre ou conformes aux règlements pris par le gouverneur en conseil en application de la présente loi. |
| 37. (2) If, after reviewing any material or information provided under subsection (1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, the Minister or a person designated by the Minister may, by order, subject to regulations made pursuant to paragraph (3)(b), or, if there are no such regulations in force, with the approval of the Governor in Council, (a) require such modifications or additions to the work or undertaking or such modifications to any plans, specifications, procedures or schedules relating thereto as the Minister or a person designated by the Minister considers necessary in the circumstances, or (b) restrict the operation of the work or undertaking, and, with the approval of the Governor in Council in any case, direct the closing of the work or undertaking for such period as the Minister or a person designated by the Minister considers necessary in the circumstances. |
| 37. (2) Si, après examen des documents et des renseignements reçus et après avoir accordé aux personnes qui les lui ont fournis la possibilité de lui présenter leurs observations, il est d'avis qu'il y a infraction ou risque d'infraction au paragraphe 35(1) ou à l'article 36, le ministre ou son délégué peut, par arrêté et sous réserve des règlements d'application de l'alinéa (3)b) ou, à défaut, avec l'approbation du gouverneur en conseil : a) soit exiger que soient apportées les modifications et adjonctions aux ouvrages ou entreprises, ou aux documents s'y rapportant, qu'il estime nécessaires dans les circonstances; b) soit restreindre l'exploitation de l'ouvrage ou de l'entreprise. Il peut en outre, avec l'approbation du gouverneur en conseil dans tous les cas, ordonner la fermeture de l'ouvrage ou de l'entreprise pour la période qu'il juge nécessaire en l'occurrence. |
[12] In addition, counsel for the Ojibways of the Pic River First Nation, who are also respondents to the application for judicial review, relied on the following provisions of the Canadian Environmental Assessment Act:
| 2.(1) "project" means (a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work, or ... |
2.(1) " projet " Réalisation - y compris l'exploitation, la modification, la désaffectation ou la fermeture - d'un ouvrage ou proposition d'exercice d'une activité concrète, ... |
| "proponent", in respect of a project, means the person, body, federal authority or government that proposes the project; |
" promoteur " Autorité fédérale ou gouvernement, personne physique ou morale ou tout organisme qui propose un projet. |
| 5(1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority ... (d) under a provision prescribed pursuant to paragraph 59(f), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part. |
5(1)L'évaluation environnementale d'un projet est effectuée avant l'exercice d'une des attributions suivantes : ... d) une autorité fédérale, aux termes d'une disposition prévue par règlement pris en vertu de l'alinéa 59f), délivre un permis ou une licence, donne toute autorisation ou prend toute mesure en vue de permettre la mise en oeuvre du projet en tout ou en partie. |
D. Analysis
| 1. Futility |
[13] Apart from the issue raised on behalf of the Pic River Nation, this motion turns on the answer to one question: would the quashing of the authorizations granted to the Kagiano Power Corporation under section 32 and subsection 35(2) of the Fisheries Act have any practical effect? Counsel for Kagiano Power Corporation says that it would not, and for two reasons.
[14] First, since construction is virtually complete, and the operation of the facility is imminent, whatever destruction of fish or damage to fish habitat may be attributable to this project has already occurred or is being mitigated. Counsel for the respondents rely on a supporting affidavit to this effect that was sworn by David de Montmorency, a director of Kagiano Power Corporation and a professional engineer.
[15] Thus, it was argued, if the authorizations were set aside, the Minister would not have the legal authority to issue fresh authorizations with the potentially more stringent environmental protections the applicant believe would be found to be appropriate if there were full disclosure prior to the conduct of the assessment mandated by the Environmental Assessment Act. This is because sections 32 and 35 are prospective in nature: that is, they empower the Minister to authorize the carrying on of a work or undertaking that will result in the killing of fish, or damage to or destruction of fish habitat. In other words, the Minister has no authority to issue an authorization with conditions, with respect to a work or undertaking that is complete and has already caused whatever damage it was going to cause.
[16] Second, if the decisions were set aside, then the construction of the facility may well be found to have adversely affected fish habitat contrary to subsection 35(1), thus exposing Kagiano Power Corporation to prosecution under subsection 40(1). Furthermore, subsection 41(4) empowers the Attorney General of Canada to institute proceedings to enjoin the commission of an offence under section 40.
[17] However, counsel argued, since Kagiano Power Corporation constructed the facility under an authorization, albeit one that was subsequently quashed, it would have a due diligence defence to any prosecution under subsection 41, which would also preclude the Attorney General from obtaining an injunction.
[18] Counsel for the Minister also took the view that the fact that Kagiano Power Corporation had an apparently lawful authorization when it destroyed fish or damaged fish habitat would constitute a valid defence.
[19] Accordingly, it was argued, setting aside the authorization for non-compliance with the statutory provisions relating to disclosure prior to the environmental assessment of the project would not expose Kagiano Power Corporation to prosecution under the Fisheries Act or to any consequent pressure to modify its operations.
[20] Counsel"s argument rested principally on the language of section 32 and 35 of the Fisheries Act, and on the evidence of Mr. de Montmorency that any damage to fish and fish habitat attributable to the construction of the project had already occurred. He also drew my attention to passages in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, where La Forest J. considered the applicability of the Environmental Assessment and Review Process Guidelines Order to the powers of the Minister under the Navigable Waters Protection Act R.S.C. 1985, c. N-2, and under section 35 of the Fisheries Act.
[21] La Forest J. held that the construction of the Oldman River dam was a "project" for which the Minister of Transport was an "initiating department" for the purpose of the Guidelines Order because the approval powers conferred by the Navigable Waters Protection Act were part of "a legislatively entrenched regulatory scheme"(at page 48). In contrast, he held, the Fisheries Act contained no such "equivalent regulatory scheme" since the prohibitions that it imposed were enforceable only through the criminal process, and the powers of the Minister of Fisheries and Oceans conferred by the Act were simply in aid of the power to exempt particular works or undertakings from the general prohibition, "not to further a regulatory procedure"(at page 49). Accordingly, the Guidelines Order was not triggered by the exercise of these powers under the Fisheries Act.
[22] This argument may lend some support to the respondents" position, in that it suggests that since the Fisheries Act does not establish a regulatory scheme the Minister has no ongoing responsibility to monitor and regulate through administrative means the operation of the facility. However, the issues in dispute in Oldman River and in the present case are so different that I have derived little assistance from La Forest J."s reasons.
[23] Counsel for the applicant made two points that are relevant here. First, she said that the fact that construction of the project is almost complete is not a reason for regarding the application for judicial review has moved. As she noted, the Court granted relief in Oldman River even though the dam was virtually finished. However, the reason for this was La Forest J."s conclusion that the grant of prerogative relief might still have some practical effect. Thus, he said (at page 80):... it is not at all obvious that the implementation of the Guidelines Order even at this late stage will not have some influence over the mitigative measures that may be taken to ameliorate any deleterious environmental impact from the dam on an area of federal jurisdiction.
[24] While I agree that the advanced state of this project would not in itself justify the refusal of relief, and hence the grant of this motion to strike, it does not answer the key question before me, which is whether in the factual and legal contexts of this case the quashing of the authorizations would have any practical effect.
[25] Counsel"s second point seems to me much more germane. It is that the evidence adduced in support of the respondent"s motion does not establish on the balance of probabilities that, with the virtual completion of the construction of the facility, any possible killing of fish or damage to fish habitat has occurred or is being mitigated. Mr. de Montmorency"s affidavit, she submitted, fails in two respects to get the respondents over the evidential hurdle that they must clear if their legal argument is to succeed.
[26] First, the statement that the generators and turbines have not been installed is an admission that the facility is not yet operational. When it is operating, some of the water that presently passes around each side of the facility before going over the falls will be diverted through it, thus causing the level of the water on each side to drop. How can it be said at this time, counsel asked, that this will not cause further damage to fish habitat, especially given seasonal variations in the level of the water?
[27] Second, the affidavit does not provide an adequate answer to this question. Mr. de Montmorency, who is not an expert in fish ecology, only states that the construction of the facility, being virtually complete, will cause no future damage to fish or fish habitat; he does not address the possible adverse impact of the operation of the facility.
[28] It would seem clear to me that the prohibitions contained in sections 32 and 35 of the Fisheries Act include both the construction of a work and its operation: "carrying on a work or undertaking" surely connotes more than construction, as I think, was conceded by counsel for the respondents. His answer was that the commencement date of operation was scheduled prior to the hearing of the application for judicial review, and that if the operation of the facility were to cause damage to fish habitat it was bound to have occurred by that time, thus ensuring that the application will be dismissed because there will be no practical purpose in granting the relief requested.
[29] In my opinion, the motion record does not contain evidence on which I can conclude that on the balance of probabilities the operation of the facility will not damage fish habitat. And, even if it is operational when the application is heard in August, which is by no mean certain, there is no evidence about any possible longer term environmental impacts that the diversion of the water through the facility may have on fish and fish habitat. These are issues that are more appropriately addressed by the parties at the hearing of the application for judicial review.
[30] Accordingly, it is possible that if the Minister"s authorizations were quashed, it would still be open to the Minister to issue a new authorization to provide Kagiano Power Corporation with a defence to any criminal proceeding instituted for causing the kind of damage prohibited by sections 32 and 35. Without such an authorization, Kagiano Power Corporation would be liable to prosecution and to an injunction if the operation of the facility resulted in the killing of fish or damage to fish habitat.
[31] Thus, the respondents have not established that the application for judicial review has no prospect of success because the relief sought would serve no useful purpose. I am not satisfied that, as La Forest J. put it in Oldman River (at page 80), this is one of "those few instances were the issuance of a prerogative writ will be effectively nugatory".
[32] I will only add that, if a Court should be as cautious as La Forest J. indicated that it should be after hearing an application for judicial review on its merits, even more circumspection is called for when the issue is raised on an interlocutory motion to strike.
| 2. The funding decision: who is the "proponent"? |
[33] The Pic River First Nation was added as a respondent to this application for judicial review by virtue of a decision by the Minister of Indian and Northern Affairs to fund their participation in the project: Pic River First Nation is a shareholder in Kagiano Power Corporation. The funds have now been advanced to them by the Minister.
[34] In addition to supporting the arguments advanced on behalf of Kagiano Power Corporation in moving this motion, counsel for the Pic River First Nation also urged that I should strike the application as regards his clients on the additional ground that a funding decision by a federal Minister only attracts the Canadian Environmental Assessment Act by virtue of paragraph 5(1)(b) if the funding is to the "proponent" of the project. Counsel submitted that Kagiano was the proponent, and the Pic River First Nation participated only as a shareholder in Kagiano.
[35] Counsel had filed no written materials in support of this argument, and counsel for the applicant had received no prior notice that it would be made. Counsel for the Minister took no position on it. In these circumstances, I am not prepared to grant a motion to strike on the basis of a legal argument that the applicant has had no opportunity to consider and to respond to. There was no evidence before me about the role of the First Nation in the project and I had no more than counsel"s assertion that they were not "a proponent" within the meaning of the Act .
| E. Conclusion |
[36] For these reasons the motion to strike the application for judicial review is dismissed.
[37] Counsel for the applicant made a submission on costs and requested $3,000.00 by way of a lump sum, which she supported by a bill of costs. Counsel for the Pic River First Nation stated that, as he had not filed any materials, counsel for the applicant did not spend time responding to him. Nonetheless, he supported Kagiano, the mover of the motion, and I see no reason why all the respondents should not be jointly and severally liable for any award of costs in this motion.
[38] Having considered the parties" submissions and the factors contained in rule 403(3), the applicant is awarded his costs in the amount of $2,500.00.
"John M. Evans"
J.F.C.C.
Toronto, Ontario
May 19, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1586-98 |
| STYLE OF CAUSE: JOHN R. LAVOIE |
Applicant
| - and - |
| THE MINISTER OF THE ENVIRONMENT, |
| THE MINISTER OF FISHERIES AND OCEANS, |
| THE MINISTER OF INDIAN AND NORTHERN AFFAIRS |
| KAGIANO POWER CORPORATION AND |
| OJIBWAYS OF THE PIC RIVER FIRST NATION |
Respondents
DATE OF HEARING: FRIDAY, MAY 14, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS J.
DATED: THURSDAY, MAY 20, 1999
APPEARANCES: Ms. Juli Abouchar
For the Plaintiff
| Mr. Ian Dick |
| For the Respondents, Ministers |
Mr. John McGowan
| For the Respondent, Kagiano Power Corporation |
| Mr. Robert Edwards |
| For the Respondent, Ojibways Of The Pic River First Nation |
SOLICITORS OF RECORD: Ms. Juli Abouchar
| Birchall Nortey |
| Barristers & Solicitors |
| 36 Wellington Street East |
| Toronto, Ontario |
| M5E 1C7 |
For the Plaintiff
| Solicitors of Record ... continuation Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondents, Ministers |
Cassels Brock & Blackwell
| Barristers & Solicitors |
| Scotia Plaza |
| 2100-40 King Street West |
| Toronto, Ontario |
| M5H 3C2 |
| For the Respondent, Kagiano Power Corporation |
| Edwards & Carfagnini |
| Barristers & Solicitors |
| P.O. Box 2237 |
| 69 North Court Street |
| Thunder Bay, Ontario |
| T7B 5E8 |
| For the Respondent, Ojibways Of The Pic River First Nation |
FEDERAL COURT OF CANADA
Date: 19990519
Docket: T-1586-98
Between:
| JOHN R. LAVOIE |
Applicant
- and -
| THE MINISTER OF THE ENVIRONMENT, THE MINISTER OF FISHERIES AND OCEANS, THE MINISTER OF INDIAN AND NORTHERN AFFAIRS KAGIANO POWER CORPORATION AND OJIBWAYS OF THE PIC RIVER FIRST NATION |
Respondents
| REASONS FOR ORDER |