Vachon v. Canada (Attorney General)

Vachon Estate v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-05-08
Neutral citation
2024 FC 709
File numbers
T-1450-23
Decision Content
Date: 20240508
Docket: T‑1450‑23
Citation: 2024 FC 709
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 8, 2024
PRESENT: Mr. Justice McHaffie
BETWEEN:
DENIS VACHON (ESTATE OF), FRANÇOIS GENDRON, KURT LUCAS, MONIQUE LACROIX, JOSEPH VALLÉE, YOLANDE BOULET, COOP DE VIE COMMUNAUTAIRE LA CHAINE, JOSÉE MORIN, SYLVAIN CÔTÉ, LES INVESTISSEMENTS RAYPI INC
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] This decision involves two motions in the context of an application for judicial review: a motion to strike the notice of application and a motion to amend it. The underlying application seeks to invalidate a decision by the Minister of Public Works and Government Services [the Minister] to have the Crown expropriate lands necessary for the construction and operation of a rail line bypassing downtown Lac‑Mégantic. The lands in question include lands owned by the applicants.
[2] The respondent, the Attorney General of Canada, is seeking to have the applicants’ notice of application struck in its entirety, on the grounds that it has no prospect of success. The Attorney General notes that Associate Chief Justice Gagné has already held that the applicants’ application does not raise a serious issue to be tried: Vachon Estate v Canada (Attorney General), 2023 FC 1582 at paras 43–77. The Attorney General claims that the application is also doomed to fail, for essentially the same reasons, and that it should therefore be struck.
[3] The applicants, on the other hand, seek leave from this Court to amend their notice of application to add (a) allegations that the Minister exhibited bias; and (b) allegations of fact already raised in their motion for an injunction. The Attorney General opposes this motion on the basis of procedural issues and, more substantively, claiming that the allegations contained in the motion are also doomed to fail.
[4] For the reasons that follow, I find that the Attorney General’s motion to strike must be granted and the applicants’ motion to amend must be dismissed. In both cases, the determinative issue is the lack of any prospect of success of the application.
[5] The Expropriation Act, RSC 1985, c E‑21, authorizes the Crown to expropriate any immovable real right that, in the opinion of the Minister, is required by the Crown for a public work or other public purpose. In doing so, the Expropriation Act gives the Minister broad discretion to assess and decide what is in the “public interest” and what immovable real rights are required for this purpose. The jurisprudence on expropriation and, more broadly, administrative law, establishes that such a decision is subject to a low level of legal constraint and can be challenged only in limited circumstances. The grounds put forward by the applicants in their notice of application and their proposed amended notice of application do not raise such circumstances, even if all the alleged facts are taken as true. Despite the very high threshold applicable to motions to strike, I find that the applicants’ application is doomed to fail and must be struck out.
[6] The Attorney General’s motion to strike is therefore granted. The applicants’ motion to amend is dismissed. In consideration of all of the circumstances, no costs are awarded.
II. Issues
[7] The parties’ motions raise the following issues:
Should the applicants be granted leave to amend their notice of application?
Should the notice of application be struck out in full or in part?
[8] As explained below, these two issues are linked, in the sense that amendment of a pleading should not be authorized if the amendment itself is liable to be struck out.
III. Analysis
A. Amendment of the notice of application (1) Principles [9] Rule 75 of the Federal Courts Rules, SOR/98‑106, provides that the Court may allow a party to amend a document on such terms as will protect the rights of all parties. In applying this rule, the Federal Court of Appeal has identified the following principles:
(a)the central issue is whether it is more consonant with the interests of justice that the amendment be permitted or denied: Janssen Inc v Abbvie Corporation, 2014 FCA 242 at para 3, citing Continental Bank Leasing Corp v Canada, 1993 CanLII 17065 (TCC);
(b)as a general rule, an amendment should be allowed at any stage of a proceeding for the purpose of determining the real questions in controversy between the parties, provided that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice: Janssen at para 9; McCain Foods Limited v JR Simplot Company, 2021 FCA 4 at para 20;
(c)however, the proposed amendment must have a reasonable prospect of success, and it will be refused if it is “plain and obvious,” assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: McCain at para 20, citing Teva Canada Limited v Gilead Sciences Inc, 2016 FCA 176 at paras 29–32, and R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17;
(d)in deciding whether an amendment has a reasonable prospect of success, it must be examined in the context of the law and the litigation process, and a “realistic” view must be taken; it is often helpful for the Court to ask itself whether the amendment, if it were already part of the proposed pleadings, would be a plea capable of being struck out: McCain at paras 21–22; and
(e)a proposed amendment must meet the requirements for pleadings, including Rule 301(e), which requires a notice of application to set out “a complete and concise statement of the grounds intended to be argued”: Canada (Attorney General) v Iris Technologies Inc, 2021 FCA 244 at paras 11–12; see also McCain at para 23 in the context of an action.
[10] The parties generally agree on these principles. However, they do not agree on their application to the amendments proposed by the applicants. To understand these amendments, it is first necessary to consider the context in which they are proposed and the applicants’ current notice of application.
(2) Current notice of application [11] The application for judicial review underlying the two motions arises in the context of the horrific tragedy that struck the community of Lac‑Mégantic on July 6, 2013, when a train carrying crude oil derailed, causing a major fire and multiple explosions. Forty‑seven people were killed, including loved ones of some of the applicants.
[12] In May 2018, the governments of Canada and Quebec announced a plan to build a rail bypass rerouting the railway away from downtown Lac‑Mégantic. The planned bypass involves creating a rail corridor on lands within the City of Lac‑Mégantic and the municipalities of Nantes and Frontenac. Nantes is a community that lies northwest of Lac‑Mégantic, while Frontenac lies east of the town.
[13] On January 24, 2023, the Minister of Transport asked the Minister to initiate an expropriation process to acquire the lands necessary for the construction of the Lac‑Mégantic rail bypass that could not be acquired by negotiation. The Minister of Transport underlined the importance of acting quickly, given the imminence of the tenth anniversary of the tragedy and the Government of Canada’s desire to begin construction in the fall of 2023. For the same reasons, the Minister of Transport also reiterated the importance of obtaining an order from the Governor in Council shortening the statutory period of 90 days before which the Crown may not take possession of the lands: Expropriation Act, subsection 19(2).
[14] The Minister signed notices of intention to expropriate, which were published in the land register of the Frontenac registration division. The notices state that His Majesty in Right of Canada requires the lands for the construction and operation of a rail bypass rerouting trains away from downtown Lac‑Mégantic.
[15] Approximately 1,500 objections to the planned expropriations were filed with the Minister under section 9 of the Expropriation Act. The Minister therefore ordered that a public hearing be held to address the objections and asked the Attorney General of Canada to appoint a hearing officer under section 10 of the Expropriation Act. Julie Banville was appointed hearing officer and held public hearings on May 4, 5, 8 and 9, 2023.
[16] On May 25, 2023, the hearing officer submitted her report summarizing the grounds of the objections presented at the public hearings, including those of the applicants. After reviewing the report, the Minister decided to confirm the notices of intention to expropriate and to ask the Attorney General to publish notices of confirmation in the land register.
[17] The applicants’ application for judicial review, filed on July 12, 2023, seeks to have the Minister’s decision and the notices of confirmation of intention to expropriate quashed with respect to the applicants’ lands. On August 4, 2023, the notice of application was slightly amended, with leave from the Court, to reflect changes to its style of cause. To avoid confusion with the amendments being sought in the context of these motions, I will refer to the amended application filed on August 4, 2023, as the “notice of application” or the “current notice of application.”
[18] The current notice of application alleges that the notices of confirmation of intention to expropriate are illegal and were rendered without authority. In particular, the applicants allege that (i) the Minister should have applied section 4.1 of the Expropriation Act rather than section 4 (paragraphs 14, 46–48); (ii) the bypass is solely for the benefit of the railway company involved in the project, Centre du Maine et du Québec Inc [CMQ], whose main shareholder is the Canadian Pacific Kansas City railway company [CPKC] (paragraph 15); (iii) the Minister did not follow the process set out in section 4.1 of the Expropriation Act because CMQ never requested a bypass (paragraphs 15, 37–39); (iv) pursuant to section 98 of the Canada Transportation Act, SC 1996, c 10, construction of the bypass is conditional on the approval of the Canadian Transportation Agency [CTA], which has yet to render its decision (paragraphs 16, 19, 22, 45, 48); (v) CMQ submitted the application to the CTA, although this was the Minister of Transport’s responsibility, placing the Minister in a situation of conflict of interest (paragraphs 17–18); (vi) the Minister is not authorized to initiate the expropriation process and acted in bad faith, knowing the process undertaken does not comply with the Expropriation Act (paragraphs 21, 23); (vii) the planned bypass risks causing significant negative environmental impacts (paragraphs 25, 27–32); (viii) even if the Minister invokes another public purpose, the project or the proposed route lacks social acceptability (paragraphs 26, 41); (ix) the notices of intention to expropriate and the notices of confirmation do not state under which section of the Expropriation Act they have been issued, rendering them invalid (paragraph 40); and (x) the project is not a public work under federal jurisdiction, such as a seaport, airport or penitentiary (paragraph 41).
[19] In the context of the applicants’ motion for an injunction, Associate Chief Justice Gagné grouped the grounds raised in the notice of application under four headings: (1) the use of section 4 of the Expropriation Act rather than 4.1 and the lack of a request put forward by a railway company; (2) the lack of public interest of the project, which would only benefit private interests; (3) the prematurity of the expropriation notices, since the CTA has still not approved construction of the bypass; and (4) the serious environmental issues and lack of social acceptability associated with the project: Vachon Estate at para 44. The applicants did not object to this categorization in the context of these motions.
(3) The proposed amendments [20] The applicants seek to make two amendments to their notice of application.
[21] The first, at paragraph 44, would add an allegation raising an apprehension of bias on the part of the Minister. In seven subparagraphs, the proposed amendments specify that this apprehension arises from the following facts: (a) the decision to confirm the expropriation was premeditated as early as January 2023 for the political interests of the Minister in connection with the tenth anniversary of the tragedy; (b) a memorandum addressed to the Minister by her Deputy Minister on May 30, 2023 [the Memorandum], establishes that the decision was dictated by the Minister of Transport; (c) the Memorandum shows that Transport Canada is the [translation] “project manager” and dictates the decisions in collaboration with Public Works and Government Services Canada and the Department of Justice; (d) the Memorandum states that Transport Canada will be able to transfer the lands to CMQ for construction, without producing any documentation in support of this, and that CMQ has not requested that a bypass be constructed; (e) the Memorandum suggests that the Minister’s decision was written before she had received an English translation of the report of hearing officer Banville and that the Minister cannot make a decision based on railway safety arguments; (f) an email sent to the Minister on June 9, 2023, highlighted the existence of a ministerial order from Quebec’s Ministry of Natural Resources refusing to authorize mining activity in the region because it would have a negative impact in a large area required for supplying the town with drinking water; and (g) the Minister, in her decision, called into question the results of the referendum conducted by the Municipality of Frontenac, while [translation] “glorifying” a Facebook page published under the direction of the City of Lac‑Mégantic in favour of the bypass project.
[22] The second amendment, at paragraph 48.1, states that [translation] “[t]he applicants wish to reiterate the facts mentioned at paragraphs 15, 16, 17, 18, 25 and 42 to 54 of their application for an interlocutory injunction.”
(4) The main issue [23] The applicants claim that the purpose of the amendments is to add references to facts they did not become aware of until after receiving the documents provided pursuant to Rules 317 and 318 of the Federal Courts Rules. They claim the amendments will help identify the real questions in controversy between the parties and will not result in injustice to the Attorney General of Canada. They also note that this is the first time the federal government is invoking the Expropriation Act to build a railway line.
[24] The Attorney General raises several arguments against the amendments proposed by the applicants. He argues the applicants have not justified the six‑month period they allowed to elapse between their receipt of the documents in question and the proposed amendments, a delay that was prejudicial to him. He also submits that the purported incorporation by reference into the proposed new paragraph 48.1 is not compliant with Rule 301 of the Federal Courts Rules. More substantively, the Attorney General submits that the amendments are unfounded in law and that, like the grounds in the current notice of application, they have no reasonable prospect of success.
[25] As stated above, leave will not be granted to amend a pleading if it is plain and obvious, assuming the facts pleaded to be true, that the pleading has no reasonable prospect of success and is therefore liable to be struck out: McCain at paras 20–22. I conclude that this is the determinative issue in this case.
[26] As the lack of prospect of success is relevant to the determination of both the applicants’ motion to amend and the Attorney General’s motion to strike, I will address that issue after dealing with the principles applicable to striking pleadings. As I find below that the proposed amendments have no prospect of success, it follows that this Court cannot approve the amendments and that the applicants’ motion to amend must be denied.
B. Striking of the notice of application (1) Principles [27] The Federal Courts Rules do not expressly cover the possibility of striking a notice of application, as they do in the context of an action: Federal Courts Rules, Rules 169, 221. Nevertheless, the Court has a plenary jurisdiction to restrain the misuse of courts’ processes, which includes jurisdiction to strike a notice of application: JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), 2013 FCA 250 at para 48, citing David Bull Laboratories (Canada) Inc v Pharmacia Inc, 1994 CanLII 3529 (FCA), [1995] 1 FC 588 at p 600, and Canada (National Revenue) v RBC Life Insurance Company, 2013 FCA 50 [at paras 33–36].
[28] The principles applicable to the exercise of this jurisdiction, established by the Federal Court of Appeal, are the following:
(a)the proper way to contest an application for judicial review is to appear and argue at the hearing of the application: David Bull at pp 596–597; 876947 Ontario Limited (RPR Environmental) v Canada (Attorney General), 2013 FCA 156 [RPR Environmental] at para 9; JP Morgan at para 48;
(b)the Court will therefore strike a notice of application only where it is “so clearly improper as to be bereft of any possibility of success,” namely in the exceptional case where there is a “fatal flaw” striking at the root this Court’s power to entertain the application or some other circumstance that suggests that the proceeding is “doomed to fail”: Bernard v Canada (Attorney General), 2019 FCA 144 [Bernard I] at para 33; JP Morgan at para 47;
(c)this very high threshold is the same as that applicable in the context of a motion to strike an action: Wenham v Canada (Attorney General), 2018 FCA 199 at paras 32–33; Federal Courts Rules, Rule 221(a);
(d)the facts alleged in the notice of application are taken to be true, unless they are patently ridiculous, incapable of proof, or based on assumptions or speculations: JP Morgan at para 52; Wenham at para 33; Canada v Scheuer, 2016 FCA 7 at para 19; Operation Dismantle v The Queen, 1985 CanLII 74 (SCC) at para 27;
(e)affidavits are therefore generally not admissible to support or oppose a motion to strike, but documents referred to and incorporated by reference in a notice of application may be appended to an affidavit for the assistance of the Court, and the Court may also consider the impugned decision: JP Morgan at paras 51–54, 56–57; Wenham at para 33;
(f)the notice of application must set out “a complete and concise statement of the grounds intended to be argued,” and the applicant may not supplement or buttress it by making new allegations in an affidavit (or in written representations): JP Morgan at paras 38–45, 52; Federal Courts Rules, Rule 301(e);
(g)to determine whether an application for judicial review discloses a cause of action, the Court must read the notice of application generously with a view to accommodating any inadequacies in the allegations and in such a way as to get at its real essence by reading it realistically, holistically and practically without fastening onto matters of form: JP Morgan at paras 49–50; Wenham at para 34; Mohr v National Hockey League, 2022 FCA 145 at para 48;
(h)even if Rule 221 refers to a “reasonable” cause of action, and the case law refers to a “reasonable” prospect of success, the task is not to assess the odds of an applicant ultimately succeeding, or the evidence that may be put forward, but simply to determine whether it is plain and obvious that the application will fail: Wenham at paras 29–31, 36; and
(i)this determination is reached against the legal background of the application, taking into account, in the case of an application for judicial review, issues such as the standard of review and the existence of a ground of review known to administrative law: Wenham at paras 30, 36(II); Bernard v Canada (Professional Institute of the Public Service), 2020 FCA 211 at para 16; JP Morgan at paras 67–70, 80; McCain at para 21; Mohr at paras 53–54; RPR Environmental at para 5.
[29] In light of this last principle in particular, it is necessary to set out the legal context of the decision in issue, namely expropriation by the Crown under the Expropriation Act, before turning to an analysis of the notice of application.
(2) Legal context a) Provisions of the Expropriation Act [30] Subsection 4(1) of the Expropriation Act grants to the Crown the authority to expropriate any immovable real right that, in the opinion of the Minister, is required for a public work or other public purpose:
Authority to expropriate
Pouvoir d’exproprier
4 (1) Any interest in land or immovable real right, including any of the interests or rights mentioned in sections 7 and 7.1, that, in the opinion of the Minister, is required by the Crown for a public work or other public purpose may be expropriated by the Crown in accordance with the provisions of this Part.
4 (1) La Couronne peut exproprier, en conformité avec les dispositions de la présente partie, tout droit réel immobilier ou intérêt foncier, y compris l’un des droits ou intérêts mentionnés aux articles 7 et 7.1, dont elle a besoin, de l’avis du ministre, pour un ouvrage public ou à une autre fin d’intérêt public.
[Emphasis added.]
[Je souligne.]
[31] The Expropriation Act also includes a provision, section 4.1, that addresses the situation where a request to expropriate originates from a railway company. As Associate Chief Justice Gagné has explained, this provision was added to the Expropriation Act in the context of the 1996 repeal of the Railway Act, RSC 1985, c R‑3, and the consolidation of that statute and the National Transportation Act, 1987 in the new Canada Transportation Act: Vachon Estate at para 21; Canada Transportation Act, long title. The relevant paragraphs of section 4.1 read as follows:
Request by railway company to expropriate
Demande d’expropriation
4.1 (1) If a railway company, as defined in section 87 of the Canada Transportation Act, requires an interest in land or immovable real right for the purposes of its railway and has unsuccessfully attempted to purchase the interest or right, the railway company may request the Minister of Transport to have the Minister have the interest or right expropriated by the Crown in accordance with this Part.
4.1 (1) La compagnie de chemin de fer — au sens de l’article 87 de la Loi sur les transports au Canada — présente au ministre des Transports une demande pour que le ministre fasse exproprier par la Couronne, conformément à la présente partie, le droit réel immobilier ou intérêt foncier dont elle a besoin pour un chemin de fer et qu’elle n’a pu acheter.
Power of Minister
Pouvoir du ministre
(2) The Minister shall have the interest in land or immovable real right expropriated by the Crown in accordance with this Part if
(a) the Minister of Transport is of the opinion that the interest or right is required by the railway company for its railway and recommends to the Governor in Council that it be expropriated in accordance with this Part; and
(b) the Governor in Council consents to the expropriation of the interest or right.
(2) Avec l’agrément du gouverneur en conseil donné sur recommandation du ministre des Transports, lorsqu’il estime que la compagnie de chemin de fer a besoin du droit réel immobilier ou intérêt foncier pour un chemin de fer, le ministre fait exproprier par la Couronne ce droit ou intérêt en conformité avec la présente partie.
Deemed opinion
Présomption
(3) If the Minister of Transport is of the opinion that the interest in land or immovable real right is required by the railway company for its railway, the Minister is deemed to be of the opinion that the interest or right is required by the Crown for a public work or other public purpose.
(3) Si le ministre des Transports recommande l’expropriation, le ministre est censé être d’avis que la Couronne a besoin du droit réel immobilier ou intérêt foncier pour un ouvrage public ou à une autre fin d’intérêt public.
[Emphasis added.]
[Je souligne.]
[32] Sections 4 and 4.1 are found in Part I of the Expropriation Act. This Part of the Act sets out the procedure to follow such that an expropriation under section 4 or section 4.1 is carried out “in accordance with [the provisions of] this Part.” Associate Chief Justice Gagné described this procedure in detail in her decision on the motion for an injunction, and there is no need to repeat that discussion here: Vachon Estate at paras 22–28. It suffices to note that the procedure set out in Part I includes the registration and publication of a notice of intention to expropriate (sections 5 and 8); a process providing for objections by any person who objects to the intended expropriation (section 9); the appointment of a hearing officer, the holding of a public hearing, and an obligation on the hearing officer to submit a report “on the nature and grounds of the objections made” (section 10); the Minister’s authority to confirm or abandon the intention to expropriate “after receiving and considering the report” of the hearing officer (section 11); and the Minister’s duty to provide a copy of the report and a statement of the reasons that the Minister had for rejecting any objections that were not given effect (section 13).
[33] If the Minister decides to confirm the intention to expropriate, she does so by requesting that the Attorney General of Canada register a notice of confirmation in the office of the registrar where the notice of intention was registered (section 14). On the registration of the notice of confirmation, the right confirmed to be expropriated becomes and is absolutely vested in the Crown (section 15).
[34] Finally, paragraph 23(b) of the Expropriation Act creates a presumption with respect to the Minister’s opinion that an immovable real right is required for a public work or other public purpose:
Notice conclusive except against Crown
Avis péremptoirement opposable sauf à la Couronne
23 Unless questioned by the Crown,
23 Sauf si la Couronne le conteste :
[…]
[…]
(b) it shall be deemed that
b) il est considéré que, selon le cas :
(i) all of the interests or rights to which a notice of intention relates are,
(i) tous les droits ou intérêts visés par l’avis d’intention sont,
(ii) a more limited interest or right only to which a notice of confirmation relates is, or
(ii) un droit ou intérêt plus restreint visé seulement par un avis de confirmation est,
[…]
[…]
in the opinion of the Minister required by the Crown for a public work or other public purpose;
selon le ministre, requis par la Couronne pour un ouvrage public ou à une autre fin d’intérêt public;
[Emphasis added.]
[Je souligne.]
[35] I note that section 23 could be read as allowing only the Crown to question whether the rights or interests to which a notice of intention relates are, in the opinion of the Minister, required by the Crown for a public work or other public purpose. That said, the Attorney General accepts that this provision simply creates a presumption that can be rebutted by an applicant.
b) Standard of review applicable to the merits of expropriation decisions [36] The Attorney General does not dispute that it is open to this Court to review a decision by the Minister to confirm an intention to expropriate. In reaching such a decision, the Minister is exercising a power or authority conferred by an Act of Parliament. She is therefore acting as a “federal board, commission or other tribunal” within the meaning of section 2 of the Federal Courts Act, RSC 1985, c F‑7, and the Court has jurisdiction to review her decision in accordance with sections 18 and 18.1 of that Act.
[37] The parties also agree that the standard applicable to judicial review of the merits of the Minister’s decision is that of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25. An applicant seeking to have a decision made by the Minister under the Expropriation Act set aside must therefore establish that the decision is unreasonable, in the sense that it is internally inconsistent or that it is not justified in light of the factual and legal constraints that bear on it: Vavilov at paras 99–101.
[38] That said, the Supreme Court of Canada confirmed that reasonableness is a standard that accounts for context: Vavilov at paras 88–90. What is “reasonable” in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review: Vavilov at para 90. Where a legislature gives a decision maker wide discretion, such as the power to make a decision “in the public interest,” the decision maker has “greater flexibility” in interpreting the meaning of the statute and in exercising their discretion: Vavilov at paras 108, 110; 11316753 Canada Association c Canada (Transports), 2023 CAF 28 [’753 Canada (FCA)] at paras 24, 29–30, 45–52.
[39] Such decisions, which are based on policy considerations and assessed on polycentric, subjective, or indistinct criteria, are very much unconstrained and subject to “a low level of legal constraint” justifying a high degree of deference from the reviewing court: Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 (aff’d 2022 SCC 30) at para 28, citing Vavilov at para 110; ’753 Canada (FCA) at para 51, affirming 11316753 Canada Association v Canada (Transport), 2021 FC 819 [’753 Canada (FC)] at paras 42–43. At the same time, there is no such thing as absolute and untrammelled “discretion,” and any exercise of discretion must accord with the purposes for which it was given: Vavilov at para 108, citing Roncarelli v Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121 at p 140.
[40] Decisions made in the specific context of expropriation have long been recognized as highly discretionary decisions that are inherently political in nature. This is confirmed by the Expropriation Act, which refers to a “public work or other public purpose” and gives the Minister the discretion to determine whether, in her opinion, the Crown requires an immovable real right for such purpose: Expropriation Act, ss 4(1), 4.1(3), 5(1), 11(3), 23(b).
[41] In Walters, the Supreme Court reviewed the approval of an expropriation by a school board under the expropriation legislation then applicable in Ontario, the Expropriations Act, RSO 1970, c 154: Walters v Essex County Board of Education, 1973 CanLII 20 (SCC), [1974] SCR 481. Like the federal Expropriation Act, the Ontario legislation provided for the preparation of a report by an inquiry officer and required the approving authority to “consider” the report before approving or disapproving the expropriation: Walters at pp 482–484. The Walters family tried to have the expropriation of their farm annulled on grounds, among others, that the report of the inquiry officer had disapproved of the proposed expropriation and that the school board had not adequately “considered” the report as required by the statute: Walters at pp 483, 485–486.
[42] In rejecting the Walters’ appeal, Justice Laskin (later Chief Justice) noted that the legislature had “left little room for judicial supervision of an approving authority’s discharge of its duty to approve or disapprove an expropriation” short of an attack on the good faith of the decision maker, and that “[t]he Court [was] given no role to review the merits of an expropriation proposal”: Walters at pp 487–488. He described the political nature of the decision in the following terms, referring to administrative law concepts current at the time:
To use case‑honoured terminology, the Board as an approving authority is neither a judicial nor a quasi‑judicial body, but is invested with the widest discretionary power to determine, subject only to considering the inquiry officer’s report, whether an expropriation should proceed. The sanction for a wrong‑headed decision (absent bad faith), having regard to its duty to give reasons, is public obloquy not judicial reproof.
[Emphasis added; Walters at p 489.]
[43] Justice Laskin’s words echo those of the Minister of Justice who presented the Expropriation Act to Parliament in 1970. In response to a question about the statutory public hearing, the Honourable John Turner noted that “[t]he Minister of Public Works will be responsible for the expropriation to his colleagues and to the Parliament of this country, and that is a responsibility he will have to accept. His responsibility will be a political one, not a judicial one, because the decision to expropriate is, in the first instance, an administrative decision for which he bears political responsibility” [emphasis added]: House of Commons Debates, 28‑2, No 4 (9 February 1970) at p 3374; see also Eric CE Todd, The Law of Expropriation and Compensation in Canada, 2nd ed (Scarborough : Carswell, 1992) at pp 51–53. Obviously, the statements made by the Minister of Justice in 1970 do not constrain the Court in its task of reviewing the Minister’s decision, but they do support Justice Laskin’s fairly obvious conclusion that expropriation by the Crown is an inherently discretionary and political decision.
[44] It is also worth noting that the Expropriation Act explicitly provides that the Federal Court plays a certain role in the context of an expropriation, for example, to determine the state of the title to the land and to determine the compensation to which the owner of the expropriated land is entitled: Expropriation Act, sections 2(1) (“Court”), 18, 31–35. However, like the Ontarian statute considered by the Supreme Court in Walters, the Expropriation Act provides no role for the Court in reviewing decisions to undertake, abandon, or confirm an expropriation.
[45] The Attorney General also cites, as did Associate Chief Justice Gagné, this Court’s decision in Canada v Ladouceur, [1976] FCJ No 415 (this judgment was appealed, but it appears that the appeal was not pursued). That decision involved the expropriation of immovable property for the purpose of building the Mirabel Airport, carried out under the former Expropriation Act, RSC 1970, c E‑19. Mr. Ladouceur, whose lands had been expropriated, objected to the sufficiency of the compensation paid and the validity of the expropriation. At the outset of the trial, the Court heard a motion from the Crown to strike two paragraphs of Mr. Ladouceur’s statement of defence alleging that his property “was not required for purposes of public utilities in conformity with the law.” Justice Addy rendered an oral judgment, which he later incorporated into his final judgment, granting the motion in part: Ladouceur at para 2 and Annex “A”. Justice Addy held the following:
It is, however, in the interest of both parties not to prolong a trial unnecessarily and once it becomes evident that one could not, under any consideration even in interpreting the pleading as broadly and as generously as possible, come to any conclusion at law which would be favourable to the party pleading, that pleading should be struck out.
This principle certainly applies to paragraph 9(a) as there is well‑established jurisprudence confirmed by the Supreme Court of Canada in the case of Calgary Power Limited v. Copithorne, [1959] SCR 24, to the effect that an expropriated party cannot attack an expropriation on the grounds that the property might not be required for the public purpose for which the Minister declared that he was expropriating it unless one brings into issue the good faith of the Minister.
In other words, the judgment of the Minister cannot be questioned.
[Emphasis added; Ladouceur at Annex “A”.]
[46] It goes without saying that administrative law, and more specifically the law of judicial review, has evolved since the decisions of the Supreme Court in Walters and this Court in Ladouceur. Therefore, it cannot be asserted with confidence that the approach according to which the Minister’s decision can only be overturned on grounds of bad faith is still valid. Further, although the Attorney General cites Walters and Ladouceur, as well as the presumption set out in section 23, he recognizes that the reasonableness standard as set out in Vavilov is applicable.
[47] That said, the foregoing confirms that an applicant seeking to have a decision to confirm an expropriation set aside must establish that the decision does not meet the standard of reasonableness as that standard is defined for a decision that is highly discretionary and political in nature. The issue in the context of the Attorney General’s motion to strike is therefore whether it is plain and obvious that the grounds raised by the applicants can under no circumstances meet this requirement and are therefore doomed to fail.
c) Standard applicable to allegations of bias [48] The amendments proposed by the applicants allege bias on the part of the Minister. Bias is an issue of procedural fairness, which is not reviewed on a standard of reasonableness. However, the proposed amendments and the parties’ claims raise the issue of the level of impartiality to which the Minister is bound in the context of a decision to confirm an expropriation.
[49] The proposed amendments refer to an [translation] “apprehension of bias.” This language evokes the “reasonable apprehension of bias” standard that applies to the decisions of many administrative decision makers and to judges: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) at paras 45–47; Wewaykum Indian Band v Canada, 2003 SCC 45 at paras 57–61.
[50] However, the Attorney General submits that in the case of discretionary and political decisions based on an assessment of the public interest, the standard applicable to issues of bias is not that of a “reasonable apprehension of bias” but that of a “closed mind”: Pelletier v Canada (Attorney General), 2008 FCA 1 at paras 49–57, citing Imperial Oil Ltd v Quebec (Minister of the Environment), 2003 SCC 58 at para 31, and Old St Boniface Residents Assn Inc v Winnipeg (City), 1990 CanLII 31 (SCC), [1990] 3 SCR 1170 at pp 1197–98; Elson v Canada (Attorney General), 2017 FC 459 at paras 142–46. The applicants accepted this proposal during the hearing, and I fully agree.
[51] Pelletier involved a decision by the Minister of Transport to remove the chair of the board of directors of VIA Rail, who had been appointed to the position during pleasure. The Court of Appeal noted that such a decision is a policy‑making discretionary administrative decision, “which attracts, at best, a standard of impartiality of a closed mind”: Pelletier at para 55. The Court of Appeal held that this Court had erred in law in applying the standard of reasonable apprehension rather than that of the closed mind: Pelletier at para 57.
[52] The Minister’s decision in this case is also a policy‑making discretionary administrative decision that takes the public interest into account and is not constrained by statute: Elson at para 146. The Expropriation Act stipulates that the Minister receive and consider the hearing officer’s report, indicating that she must not be closed‑minded, but the Minister is only held to this standard with respect to the issue of bias.
[53] The applicants will therefore have to establish, in the context of this application, that the Minister had a closed mind when she decided to confirm the intention to expropriate. In the context of the motions before me, particularly the applicants’ motion to amend, the issue is therefore whether it is plain and obvious that the allegation proposed by the applicants that the Minister was biased cannot meet this standard and is therefore doomed to fail.
d) Role of Associate Chief Justice Gagné’s decision [54] As