McClintock's Ski School & Pro Shop Inc. v. Canada (Attorney General)

McClintock's Ski School & Pro Shop Inc. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-05-20
Neutral citation
2021 FC 471
File numbers
T-376-21
Notes
A correction was made on June 2, 2021.
Decision Content
Date: 20210520
Docket: T-376-21
Citation: 2021 FC 471
Ottawa, Ontario, May 20, 2021
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
MCCLINTOCK'S SKI SCHOOL & PRO SHOP INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This application for judicial review concerns decisions of a Navigation Protection Program Officer [Officer] of Transport Canada made pursuant to the Canadian Navigable Waters Act, RSC 1985, c N-22 [CNWA]. McClintock’s Ski School & Pro Shop Inc. [Ski School or Applicant] challenges the Officer’s authority to require the submission of applications for the approval of three waterskiing courses, as well as the Officer’s denials of two of its three applications to approve the waterskiing courses. The application is brought pursuant to s 18.1 of the Federal Courts Act, RSC 1985, c F-7.
Background
[2] The Applicant claims that the first waterskiing course on Puslinch Lake, a slalom course, was placed by riparian owners on the north shore of the lake around 1950 [North Course]. A second slalom course was placed by riparian owners in the southern part of the lake around 1952 [South Course]. The Puslinch Lake Water Ski Club [PLWSC] was established in 1962 and in that same year it set up a third slalom course in the western part of the lake [West Course].
[3] McClintock’s Ski School & Pro Shop Inc. has been operating since 1978 as the successor to the Cam-Ann Water Ski School (1958-1978) and the PLWSC (1950-1958). The Ski School is a family-run business, owned and operated by Jaime and Jason McClintock. The Ski School utilizes the three waterskiing courses in its business operations; the North Course also includes a parallel jump course.
[4] The Applicant describes the North Course as comprising a series of 26 buoys each attached to two cement blocks on the lakebed, with a centre securing cable system under the silt for both the slalom and jump courses. There are also timing buoys on either end of the slalom course and the jump course comprises a further eight buoys and the ramp. The South Course is similarly configured, but has no jump or cable system. The Applicant submits that the cement blocks of the South Course have not been altered since 1962 and that the cement blocks and cable system of the North Course have not been altered since 1972.
[5] According to the Applicant, the Ski School’s season runs from May to October, operating every day, between 9 and 5 on the weekends and 9 and 6 through the week. It has held numerous national and international waterskiing events and has trained numerous World Champions, Pan Am Champions, and Olympians.
[6] In late July and early August 2020, Transport Canada received three complaints regarding the Applicant’s waterski courses and opened a file. On August 14, 2020, the Officer emailed the Ski School advising that the Navigation Protection Program [NPP] is responsible for the administration of the CNWA which Act prohibits the construction or placement of any “works” in, on, over, under, through, or across a navigable waterway without complying with the requirements of the Act. The Officer stated that it had come to the NPP’s attention that multiple slalom courses on Puslinch Lake may have been placed since the coming into force of the CNWA on August 28, 2019, that the courses are considered “works” as defined by the CNWA and, as such, required review and approval for any construction, placement, alteration, building, removal or decommissioning. The Officer requested the Applicant to submit an application so the work could be brought into compliance. The Officer did not advise the Applicant of the complaints.
[7] The Applicant submitted approval applications for each of the three waterskiing courses on September 6, 2020. Various communications were exchanged between the Officer and the Applicant between September 6 and October 29, 2020, during which the Applicant provided further requested information.
[8] As part of the approval process, and as required by the CNWA, on October 29, 2020, the Ski School published a one-day notice for each of the three approval applications [Notice]. This notified the public of the applications for approval of the described works, the waterskiing courses, and that comments in writing regarding the effect of the works on marine navigation could be submitted for consideration if received not later than 30 days after publication of the notice.
[9] Many comments were received, these were mostly anonymous and were opposed to the approvals.
[10] By email dated December 2, 2020, the Officer informed the Applicant that a number of navigation-related comments had been received, mostly concerning the North and South Courses. The Officer advised that there was the potential that those courses in their current locations may not be approved.
[11] In a telephone call on January 27, 2021 and by email dated January 28, 2021, the Officer advised the Applicant that Transport Canada would be granting the approval for the West Course, but would be denying the applications for the North and South Courses. In the Officer’s email she also set out the rationale for the denials. By reply email the following day, the Applicant stated that it disagreed with Transport Canada’s preliminary position. The Applicant stated that it felt that it was entitled to a reasonable opportunity to provide information and to respond to the issues raised before such an important decision, impacting the lives and livelihood of a large number of people, was made.
[12] By email dated January 29, 2021, the Officer advised the Applicant that the denials would be likely be issued early the following week and that the Applicant’s “opportunity to respond to the issues that we have raised will be in the form of a new application for approval for a new location on the lake”.
[13] By letters of February 1, 2021, the Officer formally denied the North and South Course applications.
Decisions under review
[14] In the February 1, 2021 decision letters the Officer states that the requests for approval were assessed against the factors identified in s 7(7) of the CNWA and it was decided that approval could not be issued because the level of interference to navigation was determined to be unacceptable. That determination was based on the characteristics of Puslinch Lake, the safety of navigation on the lake, the impact of the work on navigation, and public comments that were received.
[15] As to the North Course, the relevant decision letter states:
This course is located in the main navigable passageway in the north part of the lake. Due to the high volume of traffic, activities and works (vessels, swimmers, docks, slalom course and ski jump, float planes) located in the north part of the lake, this area is extremely congested and presents a public safety concern for users of the waterway. The proximity of this slalom course to the shore does not provide sufficient horizontal clearance for safe navigation or other water activities in this area of the lake. The high frequency of usage of this course does not allow for vessels, both mechanically and/or human powered, to safely navigate to or from the shore or to use this part of the waterway for any length of time. This course also includes a jump, which impacts vessel traffic because there is a higher likelihood of a skier falling, which could result in the vessel having to turn around, and navigate outside of the parameters of the course buoys, potentially even closer to shore. This slalom course has cumulative impacts to the riparian owners, adjacent works and other vessels that cannot be mitigated.
[16] The South Course decision letter states:
This course is located in the only navigable passage in the south part of the lake. It is currently blocking safe passage. The restriction of the horizontal clearance is too great to provide safe passage for other vessels. This slalom course has cumulative impacts to the riparian owners, adjacent works and other vessels that cannot be mitigated.
[17] Both letters state that the work cannot be approved in its current location and must be removed by May 31, 2021. Should the Applicant wish to propose a new location, the NPP was willing to review a new application.
Legislation
[18] The most relevant provisions of the CNWA are set out in Annex A of these reasons.
Issues
[19] In my view, the issues can be framed as follows:
Preliminary issues:
Is the Respondent required to adduce affidavit evidence?
Should the Applicant be granted leave to file additional affidavits (Rule 312 motion)?
Substantive issues:
What are the applicable standards of review?
Was the NPP authorized to require the approval applications?
Was the Applicant denied procedural fairness in the approval process?
Were the denials of the approval applications reasonable?
Preliminary Issue 1: Is the Respondent required to adduce CTR evidence by affidavit?
[20] The Applicant submits that the Officer cannot rely on her notes or the Certified Tribunal Record [CTR] for the truth of their content and must adopt any evidence on which the Officer intends to rely by affidavit. For this argument, the Applicant relies on Tajgardoon v Canada (2000), [2001] 1 FC 591 (FCTD); Chou v Canada (2000), 190 FTR 78 (FCTD), aff’d 2001 FCA 299; and Wang v Canada, [1991] 2 FC 165 (FCTD).
[21] The Applicant also suggests that the CTR is deficient as it was redacted without justification and appears to be missing materials, including internal NPP communications. The Applicant asserts that the CTR was “curated” by the Officer who “scrubbed it for usefulness rather than relevance”, contrary to the presumptions that the entire record must be produced (citing Nguesso v Canada, 2015 FC 102 at paras 87–89, 93). According to the Applicant, the content of the CTR is “contested hearsay” which is neither necessary nor reliable and it would be manifestly unjust to permit the Officer to tender her curated file in place of affidavit evidence while shielding herself from cross-examination.
[22] Conversely, the Respondent submits that a respondent is not obliged to submit affidavit evidence and that Rule 310(2)(c.1) of the Federal Courts Rules, SOR/98-106, allows a respondent to include in its record any material that has been certified and transmitted under Rule 318, without requiring an affidavit. The Respondent relies on Hinton v Canada (Minister of Citizenship & Immigration), 2008 FC 7, in support of this position. The Respondent also states that the Applicant has provided no evidence to support its accusation that the CTR has been curated. Moreover, as to the Applicant’s suggestion that the content of the CTR cannot be relied upon, the Respondent states that the question before this Court is whether the Officer’s decisions were procedurally fair and were reasonable based on the law and the record before her.
Analysis
[23] In my view, the Applicant’s submissions asserting that the Officer is required to submit the content of the record that was before her when she made her decisions by way of affidavit is without merit.
[24] Rule 310 sets out the required content of a respondent’s record. This includes any supporting affidavits and documentary exhibits (Rule 310(2)(b)). And, as noted by the Respondent, Rule 310(2)(c.1) states that any material that has been certified by a tribunal and transmitted under Rule 318 that is to be used by the respondent at the hearing and that is not contained in the applicant’s record is to be included in the respondent’s record.
[25] Pursuant to Rule 317(1), a party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested. In this case, the Applicant did not request the CTR. Rather, on March 10, 2021, the Respondent made the request. The Officer, pursuant to Rules 317 and 318, certified that the record enclosed (Appendices A and B) contained true copies of all materials in the possession of the Respondent, relevant to the February 1, 2021 decisions to issue denials in relation to the applications for approval of the North and South Courses. On April 6, 2021, the Respondent provided Appendices A and B of the CTR to the Court and the Applicant. On April 8, 2021, counsel for the Respondent sent an email to counsel for the Applicant advising that in reviewing the CTR it had come to their attention that correspondence that had been received by the Officer but was not considered in the Officer’s decision-making had not been included in the CTR as it had been determined to be irrelevant to the matter to be decided. However, counsel had asked that the correspondence be compiled and provided to the Applicant. On April 12, 2021, the Officer provided Appendix C of the CTR , described as “public comments dated November 8, 2020 to January 14, 2021 received and reviewed by Transport Canada but erroneously omitted from the CTR dated April 1, 2021”.
[26] Thus, what was required was that the Officer provide a certified true copy of all relevant materials pertaining to the applications that were in her possession when she made her decisions. Relevance pertains to the grounds of review in the notice of application (Canada (Human Rights Commission) v Pathak, [1995] 2 FC 455 (FCA) leave to appeal to SCC refused (1995), 198 NR 237n (SCC); Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at para 109). She was not required to provide this material by way of an affidavit. Further, there is no obligation on the Respondent to file affidavit evidence. As held in Tajgardoon, a respondent need only file those affidavits on which they propose to rely. If there are none, none need be filed. Further, the record produced by way of the CTR is not evidence as to the truth of its content, but it is admissible as reasons for the decision (Tajgardoon paras 10–12; Chou at paras 13, 16). Nor is this a situation where the respondent seeks to rely on an officer’s notes or a memorandum prepared by an officer as evidence of the facts to which they refer, i.e., as proof of the truth of their content, in which case they would have to be adopted as the evidence of the officer by way of affidavit (see Jahazi v Canada (Citizenship and Immigration), 2010 FC 242).
[27] I would also note that the three cases relied upon by the Applicant are all immigration decisions. Case law has made it clear that officer’s notes entered into the Global Case Management System, or GCMS (the successor to the Computer Assisted Immigration Processing System, or CAIPS, referenced in Tajgardoon), form part of the reasons for an immigration decision (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 44).
[28] In short, I do not agree with the Applicant that the Officer should be required to attest to the truth of the CTR’s content by affidavit. Nor could she do so with respect to much of that material, such as the complaints received in response to the Notice. The CTR represents the relevant materials that were before the decision maker at the time the decisions were made and her reasons for her decisions. While the Applicant is free to point to aspects of the record that, in its view, do not support the reasonableness of her decisions or support the Applicant’s claim of a lack of procedural fairness, the Applicant cannot compel the Officer or the Respondent to file affidavit evidence. Rule 310 permits the Respondent to include materials from the CTR in its application record without the need to attach the materials to an affidavit (Cold Lake First Nations v Noel, 2018 FCA 72 at para 26).
[29] As to the Applicant’s assertion that the CTR is deficient as it was redacted without justification, this appears to refer to the fact that the Officer redacted the names of those who made the triggering complaints and who responded to the Notice, many of whom requested anonymity alleging a fear of retribution. The Applicant does not explain how knowing the identities of those individuals would further its case but suggests that the complaints could all have originated from one person. Given that the actual complaints and concerns are found in the CTR, I fail to see how the Applicant is prejudiced by these redactions, further the Applicant’s assertion as to a common author for the complaints is speculative. In any event, the Applicant did not bring a motion seeking to compel the Respondent to produce the redacted identities or other materials, such as internal NPP communications, that it alleges may be missing from the CTR.
Preliminary Issue 2: Should the Applicant be granted leave to file additional affidavits?
[30] On April 21, 2021, the Applicant filed a motion seeking leave to file two additional affidavits: a reply affidavit of Jaime-Lyn McClintock, affirmed on April 14, 2021, [McClintock Affidavit #3] and an affidavit of Rosalie Fischetti, legal assistant, Fernandes Hearn LLP, counsel for the Applicant, affirmed on April 21, 2021 [Fischetti Affidavit].
[31] McClintock Affidavit #3 attaches no exhibits. It states that its purpose is to reply to the materials found in the CTR and states that the existence of the complaints that triggered the NPP request that the Ski School submit applications for the approval of the three waterskiing courses were not disclosed to the Ski School. It responds to certain information contained in the public comments received by the NPP in response to the Notice that Ms. McClintock deposes is false. It also takes issue with assumptions utilized by the Officer in calculating the required buffer zone for the North Course and the failure of the Officer to offer the Applicant an opportunity to respond to the Officer’s concerns before denying the applications.
[32] The Fischetti Affidavit describes the background to the request for and production of the CTR, communications between counsel as to the timetable for the filing of the CTR, the filing of affidavits, the conducting of cross-examinations, the filing of memoranda of fact and law leading up to the hearing, the filing of Appendix C of the CTR, the Applicant’s intention to serve and file a reply affidavit, the Respondent’s objection to same, and the Applicant’s advice that it would seek leave of the Court to file the reply affidavit. The communications are attached as exhibits to the Fischetti Affidavit.
[33] The Applicant submits that additional affidavits should be permitted under Rule 312 when the evidence is admissible and relevant and further, where it is in the interests of justice to do so. In that regard, the factors to be considered by the Court when exercising its discretion are set out in Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88 [Forest Ethics]. The Applicant submits that allowing the affidavits to be filed is in the interest of justice as it will not prejudice the Respondent, it will assist the Court in determining the issues of procedural fairness and reasonableness of the denials, and the evidence was not available before the Applicant’s Rule 306 affidavits were due.
[34] The Applicant submits that McClintock Affidavit #3 supports the Applicant’s allegation that the decision maker’s duty of procedural fairness was not satisfied as it shows that the substance of the complaints against the course approval applications was not communicated to the Applicant and that, had it been given the opportunity, the Applicant could have responded. The affidavit also shows that the Officer’s assumptions about the situation were wrong.
[35] The Fischetti Affidavit presents evidence of an admission by counsel for the Respondent that the Officer did not consider the materials that were submitted to her contained in Appendix C of the CTR, including comments in support of the applications refuting the navigability concerns. The Applicant submits that the fact that they were not considered goes to whether the procedure was fair and the decisions were reasonable.
[36] The Applicant submits that the evidence contained in the additional affidavits was not available to it before it was required to file its affidavits under Rule 306, within 30 days after February 26, 2021. McClintock Affidavit #3 responds to information in the CTR, which was provided to the Applicant on April 2, 2021, and the Fischetti Affidavit presents evidence that did not exist at the time the Applicant’s original affidavits were filed. Nor will the admission of the affidavits cause substantial or serious prejudice to the Respondent.
[37] The Respondent has not filed a responding motion record and does not oppose the Applicant’s motion seeking leave to file the reply affidavits.
Analysis
[38] Rule 312 permits a party, with leave of the Court, to file additional affidavits. The Federal Court of Appeal in Forest Ethics (at paras 4–6; also see Connolly v Canada (Attorney General), 2014 FCA 294 at para 6) set out the requirements that must be met to obtain leave under Rule 312. First, an applicant must satisfy two preliminary requirements:
(1) The evidence must be admissible on the application for judicial review. Generally the record before the reviewing court consists of the material that was before the decision-maker, although there are exceptions to this; and
(2) The evidence must be relevant to an issue that is properly before the reviewing court.
[39] If these two preliminary requirements are met, the applicant must then convince the Court that it should exercise its discretion in favour of granting leave. Three questions have been identified to guide the Court in determining whether the granting of leave under Rule 312 is in the interests of justice:
(a) Was the evidence sought to be adduced available when the party filed its affidavits under Rule 306 or 308, as the case may be, or could it have been available with the exercise of due diligence?
(b) Will the evidence assist the Court, in the sense that it is relevant to an issue to be determined and sufficiently probative that it could affect the result?
(c) Will the evidence cause substantial or serious prejudice to the other party?
(see also Tsleil-Waututh Nation paras 10–16).
[40] As a general rule, the evidentiary record before a Court on judicial review is restricted to the evidentiary record that was before the decision maker. Evidence that was not before the decision maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible (Association of Universities and Colleges of Canada v Canadian Copyrights Licensing Agency, 2012 FCA 22; Bernard v Canada Revenue Agency, 2015 FCA 263 at para 35).
[41] The first exception is an affidavit that provides general background in circumstances where that information might assist the Court in understanding the issues relevant to the judicial review, but care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision maker. The second exception is evidence that brings to the attention of the reviewing Court procedural defects that cannot be found in the evidentiary record of the administrative decision maker so that the Court can fulfill its role of reviewing for procedural unfairness. The third exception is evidence that highlights the complete absence of evidence before the administrative decision maker when it made a particular finding.
[42] I am satisfied that in these circumstances the McClintock Affidavit #3 and the Fischetti Affidavit are relevant to the issues of procedural fairness and reasonableness raised by the Applicant in this application for judicial review. Further, that the evidence could not have been submitted before the Applicant’s Rule 306 affidavits were due. McClintock Affidavit #3 responds to materials in the CTR that were not provided to the Applicant until after its initial affidavits were filed. The Fischetti Affidavit primarily provides background information as to timing, in particular when the CTR and Appendix C of the CTR were provided to the Applicant, as well as evidence explaining why Appendix C was provided, which evidence was not available when the initial affidavits were filed. The Respondent does not contend that the filing of the affidavits will cause it to be prejudiced, and the evidence contained in the affidavits will assist the Court in determining the issues of procedural fairness and reasonableness of the denials. Accordingly, granting leave to file the affidavits is in the interests of justice.
Standard of Review
Applicant’s position
[43] The Applicant submits that the presumptive standard of review is reasonableness, referencing Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
[44] With respect to procedural fairness, the Applicant submits that procedural fairness concerns “now overlap quite considerably with the reasonableness review required by Vavilov insofar as the process is concerned”.
[45] The Applicant submits that the question of whether or not the Officer had the statutory authority to require the Applicant to make s 10 approval applications should be reviewed on a standard of correctness. This is because s 10 of the CNWA is the process for the approval of new or future works. In the absence of clear legislative intent, it cannot be applied retrospectively to a project that dates from the 1950s. The presumption that the reasonableness standard applies is rebutted where the rule of law requires it, as is the case with this issue.
Respondent’s position
[46] Referencing Vavilov, the Respondent submits that the reasonableness standard presumptively applies to all administrative decisions unless either legislative intent or the rule of law requires otherwise. Here the presumption is not rebutted. The Respondent seems to argue that a reasonableness standard applies to issues of procedural fairness, stating that “[o]n issues of procedural fairness, the question of reasonableness is whether the procedure was fair having regard to all of the circumstances, and by fairness, the issue is whether the applicant knew the case to meet and had an opportunity to respond”.
Analysis
[47] The Supreme Court of Canada in Vavilov held that the standard of reasonableness presumptively applies whenever a court reviews an administrative decision (Vavilov at paras 16, 23, 25). That presumption may be rebutted in two circumstances. The first is where the legislature has prescribed the standard of review or where it has provided a statutory appeal mechanism thereby signalling the legislature’s intent that appellate standards should apply (Vavilov at paras 17, 33). The second circumstance is where the rule of law requires the application of the correctness standard. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies (Vavilov at paras 17, 53). The substantive issues raised by the Applicant do not fall within any of these categories of questions.
[48] When applying the reasonableness standard, a reviewing court “asks whether the decision bears the hallmarks of reasonableness–justification, transparency and intelligibility–and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at paras 15, 99). When a decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and the law that constrain the decision maker, it is reasonable and is to be afforded deference by a reviewing court (Vavilov at para 85).
[49] I also note that, within its discussion of how a reasonableness review is to be conducted by a reviewing court (Vavilov at paras 73–142), the Supreme Court addressed the principles of statutory interpretation as an element of a reasonableness analysis and held that matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard (Vavilov at para 115). The Applicant’s submission concerning the retrospective application of the CWNA concerns principles of statutory interpretation, which are also to be assessed on the reasonableness standard. This does not raise a rule of law issue, as identified in Vavilov, attracting the correctness standard. And, in any event, for the reasons set out below, the factual context of this matter does not support that the CNWA was applied retrospectively.
[50] Questions of procedural fairness are reviewable on the standard of correctness (see Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; and Mission Institution v Khela, 2014 SCC 24 at para 79).
[51] And, as stated by the Federal Court of Appeal in Oleynik v Canada (Attorney General), 2020 FCA 5 at para 39, referencing its decision in Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54, judicial review for procedural fairness is “best reflected in the correctness standard”. No deference is afforded to the underlying decision maker on questions of procedural fairness (Del Vecchio v Canada (Attorney General), 2018 FCA 168 at para 4).
Issue 1: Was the NPP authorized to require the approval applications?
Applicant’s position
[52] The Applicant submits that the Officer had no statutory authority to direct the Applicant to make the CNWA s 10 applications. The Applicant’s waterski courses were constructed before the CNWA came into force and have not been modified since. The CNWA has no retroactive or retrospective effect and the application for approval process provided for by s 10(1) is for future work; it cannot be used to regularise or “true up” a project from the 1950s. While the NPP could have conducted an investigation under s 13 of the CNWA when it received the triggering complaints, it instead demanded compliance with s 10, which is the process for approval of new works or for the altering or decommissioning of works, not existing ones.
Respondent’s position
[53] The Respondent submits that the Officer’s request that the Applicant apply for approval of the works at issue was to allow the Officer to consider whether approvals were justified under s 7(13) of CNWA, not s 10 as the Applicant asserts.
[54] The Respondent contends that the Applicant was required to comply with s 10 before “placing” its works in the lake. The fact that the Applicant had not previously sought or been given approval for the waterskiing courses does not detract from or lessen its obligation to comply with the CNWA. And, because the works were placed without complying with s 10, the Officer considered whether, under s 7(13), it would be justified in the circumstances to approve their placement after the fact [WR paras 26-28].
Analysis
[55] In her initial email to the Applicant, the Officer stated that the NPP is responsible for the administration of the CNWA, which prohibits the construction or placement of any “works” in, on, over, under, through, or across a navigable waterway without complying with the requirements of the CNWA. She stated that it had come to the NPP’s attention that multiple slalom courses may have been “placed” since the coming into force of the CNWA in August 28, 2019 and that the courses are considered works as defined in the CNWA and require review and approval for any construction, placement, alteration, rebuilding, removal, or decommissioning. She requested that the Applicant submit an application for approval so that the work could be brought into compliance.
[56] The definition of “work” in s 2 of the CNWA includes “any structure, device or other thing, whether temporary or permanent, that is made by humans”. Further, pursuant to s 3, it is prohibited to construct, place, alter, rebuild, remove, or decommission a work in, on, over, under, through, or across any navigable water, except in accordance with the Act.
[57] It is of note that in its application for the North Course the Applicant describes the course as follows:
Course consists of a total of 26 buoys + additional 8 buoys for jump course. North Course spans 400m in length and 40 m in width and runs from West to East parallel to the shoreline. The edge of the course sits 50m from the shoreline. Each buoy is held in place while attached to a sub float with bungee, which is then secured to a cinder bock with marine rope.
[58] Similar descriptions are found in the other applications.
[59] After the applications were submitted, the Officer asked the Applicant for further information about the buoys. The Applicant advised that the North and West Courses have a cable running down the center line of boat guides (middle buoys), the cables sit in the silt. The South Course comprises individually anchored buoys. All course turn buoys are individually anchored. A diagram of the buoy system was circulated indicating that each buoy is anchored by two cement blocks about 2m from the surface. The anchor line is made up of 1m of rope attached to the cement blocks, a sub buoy, a 1m elastic bungee cord, and the surface buoy.
[60] When the Applicant was instructed to make applications for its waterski courses, a distinction was not made between the permanent components of the courses on the lake bed and the above-bed components. However, the Applicant does not dispute that the buoys are removed at the end of each waterskiing season and reset at the beginning of the next season. It is also clear from the record that the Officer was aware that the buoys are “placed” every spring. For example, in her December 2, 2020 email advising the Applicant that the Officer hoped to reach her decisions before the next summer she states “but you are reminded that the courses cannot be re-installed (or rather the buoys and the jump) until you have received the required approvals” and in her January 28, 2021 email advising the Applicant that approval for the North and South Courses would be denied, the Officers states: “As a result of the denials of the north and south courses, you will be required to remove them. The concrete anchors can stay, however, any and all infrastructure above the bed of the waterway must be removed”.
[61] The marker buoys and ramp would have most recently been installed in the spring of 2020. The Officer made her request that the Applicant submit applications for approval in August 2020. On a plain reading of the definition of “works”, the above surface aspect of the courses–the buoys and the ski jump–would be captured by “any structure, device or other thing, whether temporary or permanent, that is made by humans”.
[62] The Officer did not specify what provision of the CNWA that she was relying on to support her request that the Applicant submit applications for the courses.
[63] Section 10(1) states that an owner who proposes to construct, place, alter, rebuild, remove, or decommission a work in, on, over, under, through, or across any navigable water not listed in the schedule (which would include Lake Puslinch) must take one of the two listed steps if the work, or its construction, placement, alteration, rebuilding, etc., may interfere with navigation. The first of these steps is to make an application for approval (s 10(1)(a)). The Applicant submits that s 10(1) has no application as it applies to future proposed works and the courses were already set. I note, however, that s 10(2) states that an application under s 10(1)(a) is deemed to be an application made under s 5(1). Section 7(1) states that if the Minister is of the opinion that a work that is the subject of an application made under s 5(1), or is construction, placement, alteration, rebuilding, removal, or decommissioning, may interfere with navigation, the Minister must inform the owner, in writing, of that opinion and the owner may only proceed if the Minister issues an approval for the work. However, s 7(13) of the CNWA permits the Minister, if he or she considers that it is justified in the circumstances, to approve the placement of a work after the placement begins or is completed.
[64] In August 2020, the placement of the buoys for that season had already been effected and without prior approval. The Officer was therefor authorized, by way of the deeming provision of s 10(2) and ss 5(1) and 7(13) to require that the Applicant seek approval after the placement occurred and to decide whether the approvals should be granted or denied. Accordingly, the Officer made her request after the coming into force of the Act. No issue of the retrospective application of the CNWA arises. I note that in her decisions the Officer did not require the removal of the cement block buoy anchors, presumably as they were not deemed to interfere with navigation and, therefore, not subject to CNWA approval.
Issue 2: Was the Applicant denied procedural fairness in the approval process?
Applicant’s position
[65] The Applicant submits that it was not afforded an opportunity or the procedural means by which to make submissions about a “hidden investigation” as it was denied the opportunity to review and respond to both the triggering complaints and the comments received in response to the Notice. And, when the Applicant was informed that the approvals were likely to be denied, it was not afforded an opportunity to present its case and have it fully and fairly considered. The only option was to submit a new application. Further, that the Officer overly relied on the comments received in response to the Notice and her failure to consider supporting comments and/or conduct her own investigation illustrates wilful blindness, unfairness and bias.
Respondent’s position
[66] The Respondent submits that the Officer explained the information required for the applications, assisted the Applicant throughout, and allowed the Applicant to correct or supplement the information it had provided. The correspondence between the Applicant and the Officer and the Officer’s detailed review of the data and information in the CTR demonstrate that the process was transparent, thorough, and fair. A peer review of the file was also conducted and mitigation strategies proposed by the reviewer were discussed with the Applicant.
[67] Further, there is nothing in the CNWA that requires the Officer to provide the public comments to the Applicant and allow it to respond. Nor does the Applicant point to any authority to support that it should have been provided with an opportunity to make further submissions when the Officer determined that the courses created an unacceptable level of interference to navigation. Nor does the Applicant suggest what it would have said that it could not have said during the application process. The Respondent submits that it was not improper to deny the Applicant an opportunity to make further submissions once a decision had been made. At that point, the Applicant could, and did, file a new application for approval for a new proposed location.
[68] The Respondent submits that, ultimately, by using the mathematical equation provided in the Navigational Impact Assessment Guideline it was determined, based on the measurements provided by the Applicant, that there was insufficient horizontal clearance for safe navigation in the South and North Course locations.
[69] The Respondent submits that many of the comments made in the public submissions concerned issues not within the jurisdiction of Transport Canada and, therefore, were not considered.
Analysis
[7