Federal Court Decisions

     Date: 19971103

     Docket: T-1738-95

BETWEEN:

     SOCIÉTÉ POUR VAINCRE LA POLLUTION INC.

     -and-

     REGROUPEMENT MADELINOT POUR LA

     PROTECTION DU GOLFE INC.

     Applicants

     - AND -

     MINISTER OF THE ENVIRONMENT

     -and-

MINISTER OF FISHERIES AND OCEANS

     Respondents

     REASONS FOR ORDER

RICHARD J.:

---

Nature of the proceeding

[1]      The applicants seek to be awarded costs, pursuant to Rule 1618, for their application for judicial review made pursuant to section 18.1 of the Federal Court Act.

Background

[2]      The events giving rise to this motion can be summarized as follows.

[3]      On August 11, 1995, the applicants filed a motion for an interim stay of the Minister's decision of July 25, 1995, to lift the barge Irving Whale from the bed of the Gulf of St. Lawrence, which decision was based on a supplementary environmental assessment report of July 19, 1995, concerning the removal and disposal of PCB materials from the oil cargo heating system of the barge. On August 22, 1995, I granted the application for an interim stay of the Minister's decision of July 25, 1995, until such time as the application for judicial review of that decision was determined by the Trial Division or until such time as a further initial assessment was made. By reason of the need to proceed expeditiously, given the narrow window of time for a lifting operation, I made it a condition of the order that the applicants, and, following them, the respondents respect a specific timetable in filing their material and their records in the judicial review application. I made no order as to costs. This interim order was not appealed by any of the parties.

[4]      Accordingly, the respondents are not seeking costs for their motion for a stay.

[5]      On September 8, 1995, the applicants filed an originating notice of motion and supporting affidavit, as directed by the Court. On October 10, 1995 the respondent filed its affidavit. On October 24, 1995, the applicants filed their application record and the respondents filed theirs on November 17, 1995. The applicants did not file a supplementary application record.

[6]      On November 18, 1995, by means of a press conference, the Minister announced that she had instructed the department to carry out a further assessment of the environmental effects of the raising of the Irving Whale, in light of the presence of PCBs. The purpose was to ensure that the presence of PCBs be properly considered prior to the raising.

[7]      On November 29, 1995, the applicants applied for a date of hearing. Counsel for the respondents replied in writing, on the same day, that there was no reason to proceed with the judicial review as a new environmental impact assessment is to be conducted in the coming weeks.

[8]      On January 17, 1996, an order was made fixing the hearing for April 24, 1996.

[9]      The new assessment report was released in March 1996.

[10]      On April 11, 1996, the applicants moved to adjourn the hearing of the judicial review application.

[11]      By order dated April 16, 1996, the application for judicial review was adjourned sine die. It was agreed that "l'audition au mérite du présent dossier ne porte que sur la question des frais".

Analysis

[12]      The applicants seek costs for the judicial review application from August 23, 1995 to April 16, 1996.

[13]      Following the grant of the interim order, the respondents knew that the applicants were required to proceed expeditiously with their judicial review application and that this had been imposed as a condition for the continuance of the interim order.

[14]      Prior to the Minister's announcement of November 19, 1995, the respondents had relied on the supplementary environmental assessment of July 25, 1995, which was the subject of the judicial review application.

[15]      By ordering a new environmental assessment, the Minister exercised an option that was specified in the interim order. Following the Minister's announcement, counsel for the respondents informed counsel for the applicants by letter dated November 29, 1995, that there was now no reason to proceed with the judicial review as a new environmental impact assessment was to be conducted in the coming weeks.

[16]      By November 19, 1995, and certainly no later than November 29, 1995, the applicants knew that this earlier assessment and the Minister's decision based on it would be supplanted by a new assessment.

Conclusion

[17]      These circumstances give rise, in my opinion to special reasons for granting costs to the applicants on a solicitor-client basis with respect to their judicial review application for the period August 23, 1995, to November 29, 1995.

[18]      Since no costs are awarded for the motion for a stay, any costs claimed after August 22, 1995, must be additional to those incurred in the motion for a stay made on August 11, 1995, and be related directly to costs incurred on the judicial review application.

[19]      If the parties are unable to agree, the costs awarded here are to be assessed by a taxing officer.

     __________________________

     Judge

Ottawa, Ontario

November 3, 1997