Hamilton Wentworth (Regional Municipality Of) v. Canada (Mininister of The Environment)

Hamilton Wentworth (Regional Municipality Of) v. Canada (Mininister of The Environment)
Court (s) Database
Federal Court Decisions
Date
2001-04-24
Neutral citation
2001 FCT 381
File numbers
T-1400-99
Notes
Digest
Decision Content
Date: 20010424
Dockets: T-1400-99
T-1993-99
Neutral citation: 2001 FCT 381
BETWEEN:
REGIONAL MUNICIPALITY OF HAMILTON-WENTWORTH
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
and NICK MULDER, RAY EFFER, and SALLY LERNER in their capacities as members of a review panel appointed under the
Canadian Environmental Assessment Act
Respondents
and
Docket: T-1401-99
BETWEEN:
HAMILTON AND DISTRICT CHAMBER OF COMMERCE
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
and NICK MULDER, RAY EFFER, and SALLY LERNER in their capacities as members of a review panel appointed under the
Canadian Environmental Assessment Act
Respondents
REASONS FOR JUDGMENT
DAWSON J.
1. INTRODUCTION
[1] These three applications for judicial review flow from the decision of the respondent Minister of the Environment ("Environment Minister") made at the request of the respondent Minister of Fisheries and Oceans ("Fisheries Minister"), to have a proposed expressway project referred to a review panel under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 ("CEAA" or "Act"). The respondents, Nick Mulder, Ray Effer and Sally Lerner were appointed as members of the review panel.
[2] The expressway project, as defined in the terms of reference of the review panel, is "the construction and operation of an expressway proposed by the Regional Municipality of Hamilton-Wentworth to link two existing east-west limited access expressways in Hamilton, Ontario (Lincoln Alexander Parkway and the Queen Elizabeth Way)" ("project" or "RHCE").
[3] By consent, applications T-1400-99 and T-1993-99 were heard together, and by order of prothonotary Lafrenière application T-1401-99 was heard at the same time as T-1993-99.
(i) The proceedings and the parties
(a) T-1400-99 and T-1993-99
[4] In these two applications the Regional Municipality of Hamilton-Wentworth ("Region") challenges the request of the Fisheries Minister that the Environment Minister refer the project to a review panel, the decision of the Environment Minister to refer the project to a review panel, the appointment of the review panel (particularly whether the panel is disqualified by virtue of the appointment of Nick Mulder), the establishment of the panel's terms of reference, and the issuance by the review panel of Environmental Impact Statement Guidelines ("EIS Guidelines").
[5] The Region served in these proceedings notices of constitutional questions, giving notice of its intention to question the constitutional applicability of the CEAA. The Attorney General of Ontario ("Ontario") intervenes in these proceedings pursuant to section 57 of the Federal Court Act, R.S.C. 1985, c. F-7 and the notices of constitutional questions. Ontario, in substance, supports the Region's position.
[6] By order of the Court, the Friends of Red Hill Valley ("Friends") were granted intervener status. The Friends, an unincorporated association whose objectives include the preservation, protection and enhancement of the Red Hill Valley, in substance oppose the Region's applications and support the position of the respondent Ministers.
(b) T-1401-99
[7] In this proceeding, the Hamilton and District Chamber of Commerce ("Chamber") challenges the appointment of Sally Lerner to the review panel on the ground that her appointment raises a reasonable apprehension of bias. The Chamber and its members promote the social, economic and industrial interests of the Hamilton-Wentworth regions. It supports the project.
[8] All three applications were responded to by the Deputy Attorney General of Canada on behalf of all of the respondents.
(ii) Summary of conclusions
[9] After a careful consideration of the evidence adduced and the submissions of all counsel I have concluded that the CEAA does not apply to the project and that, in the alternative, the referral of the project to a review panel was not supported by a valid head of federal jurisdiction. In the following reasons I review the factual background, the preliminary issues raised by the parties, the applicable standard of review and provide my analysis with respect to the applicability of the CEAA and the existence, or otherwise, of a valid head of federal jurisdiction.
[10] These conclusions make it unnecessary to deal with a number of the issues raised. Where wholly academic in view of my conclusions, in the interest of the more timely release of my reasons, I have not dealt with such issues. Where I consider it advisable in the circumstances, I also comment upon what my conclusions would have been had it been necessary for me to deal with those issues.
2. FACTUAL BACKGROUND
[11] The project has generated, and continues to generate, controversy.
[12] The Region describes the Red Hill Creek Expressway ("Expressway") to be a major transportation corridor undertaking which extends along the south and east of the City of Hamilton from Highway 403 in Ancaster, across the Mountain Urban Area of the Region, turning north to follow the Red Hill Creek Valley to a new interchange with the Queen Elizabeth Way ("QEW").
[13] Since the release of the Hamilton Area Transportation Plan in 1963 the Red Hill Creek Valley has been a recommended location of the north-south portion of a freeway connecting the QEW with Highway 403.
[14] The Red Hill Valley runs in a north-south direction starting on top of the Niagara Escarpment and ending at Lake Ontario. It is generally defined by the course of the north portion of Red Hill Creek and its tributaries. The Ontario Ministry of Natural Resources has identified a number of areas of natural and scientific interest in the Red Hill Valley and has identified the Van Wagner's Ponds and Marshes areas as provincially significant class one wetland. A biological inventory of the valley prepared in 1995 identified the presence of three nationally or provincially rare bird species, and the presence of the nationally vulnerable southern flying squirrel.
[15] In May of 1977, the Region assumed responsibility for major arterial roads within the Region. In December of 1977, the Region authorized a study of all alternate alignments for the north-south portion of the Expressway. The study in due course recommended as the preferred route the now proposed route through the Red Hill Valley to the QEW. The Region approved this preferred route in 1979.
[16] At that time, municipal undertakings were not subject to the Ontario Environmental Assessment Act, S.O. 1975, c. 69, but the Region requested that the provincial Minister of the Environment designate the expressway undertaking under the provincial Environmental Assessment Act, provided that the resultant environmental assessment hearing would be consolidated with all other required approval hearings. This request was approved.
[17] Pursuant to that designation the Region submitted an environmental assessment submission and a public assessment hearing followed. After a lengthy, 99-day, hearing before a Joint Board comprised of members of the Ontario Municipal Board and the Ontario Environmental Assessment Board, the majority of the Joint Board approved the proposed freeway, and the project received all required provincial approvals. Unsuccessful challenges to the decision of the Joint Board were taken to the provincial cabinet and to the Ontario Divisional Court. The Court challenge was dismissed in February of 1990, the challenge to the cabinet having failed earlier.
[18] The Region says that based on these approvals, and previously completed studies, large areas of the City of Hamilton and Stoney Creek were authorized for development. The relevant evidence with respect to things such as the purchase and expropriation of lands in the road corridor, demolition of properties and building restrictions will be reviewed in some detail later in these reasons.
[19] On June 26, 1990, a sod-turning ceremony took place for the Red Hill Creek Expressway at the King Street interchange in the Red Hill Valley. However, on December 17, 1990, the then recently elected provincial government withdrew the province's funding commitment to fund the north-south portion of the Expressway through the Red Hill Valley. In consequence, the Region states that it suspended construction of the north-south portion of the Expressway located below the Niagara Escarpment in the Red Hill Valley, but proceeded to construct the east-west segment of the Expressway and the north-south portion of the Expressway above the Niagara Escarpment. The Region also completed construction of the King Street and Queenston Road interchanges and a rail grade separation, all in the Red Hill Valley, because those projects had been commenced before funding was withdrawn.
[20] In 1997 that portion of the Expressway which the Region had continued to build from Highway 403 to Dartnall Road opened, and in 1999 the extension from Dartnall Road to Mud Street opened. This portion of the Expressway is now known as the Lincoln M. Alexander Parkway.
[21] In late 1995, the province restored funding for the project. Upon restoration of the funding, the Region initiated consultations to see whether and how the original design could be improved.
[22] During that consultative process at a meeting with representatives of the Region which took place on January 18, 1996, the federal Department of Fisheries and Oceans ("DFO") informed the Region that the CEAA would apply to the north-south portion of the Expressway. This was because, in the opinion of the DFO, the proposed works would impact on the fish habitat. Therefore authorization under subsection 35(2) of the Fisheries Act, R.S.C. 1985, c. F-14 would be required in respect of the proposed works. Representatives of Environment Canada ("EC") also noted at that meeting that under the "Migratory Birds Convention Act, EC requires information describing the possible effects roadway construction may have on migratory nesting, staging, feeding and rearing areas".
[23] On March 5, 1997, the Ontario Cabinet granted an exemption order under the OntarioEnvironmental Assessment Act (which order was later called a declaration order) exempting the project from section 5 of the provincial Act. The project was described as: "[t]he development and implementation of improvements to the north-south alignment of the Red Hill Creek Expressway as approved by a Joint Board on October 24, 1985, and the detailed design and construction of an interchange connection to the Queen Elizabeth Way as outlined in the exemption order submission dated May 6, 1996".
[24] In that exemption order the Ontario Minister of Environment and Energy noted that: "[a]lthough The Regional Municipality of Hamilton-Wentworth can construct the original project as approved in 1985 this will result in significant impacts to the Niagara Escarpment and the sensitive Red Hill Creek and Van Wagner's marsh and will not result in a needed interchange with the Queen Elizabeth Way being built. The Regional Municipality of Hamilton-Wentworth now has an opportunity to construct this interchange and implement improvements to the 1985 project which will reduce its environmental impact."
[25] The Ontario Minister of Environment and Energy indicated in the exemption order that the Minister was of the opinion that it was in the public interest to order that section 5 of the Ontario Environmental Assessment Act not apply to the undertaking for a number of reasons including:
• The Region had agreed to implement an assessment process to establish a forum for government agencies, community groups and the public to exchange ideas and information, clarify positions and expectations, and work co-operatively to develop an Expressway design that reduced impacts to the Red Hill Creek watershed.
• If the exemption order was not approved the Regional Municipality of Hamilton-Wentworth had indicated that it would use the approval granted in 1985 by the Joint Board to construct the currently approved version of the project exclusive of the QEW interchange. Although no Environmental Assessment Act approval existed for the QEW interchange, its location (based on the 1985 proposal) would have a serious impact on the sensitive Red Hill Marsh and Van Wagner's Marsh by requiring its construction on top of this wetland complex and in close proximity to two existing landfill sites.
• Both the need for, and justification of, an interchange with the QEW were demonstrated as part of the original environmental assessment submission and the hearing before the Joint Board. The only issue not reviewed by the Board was the detailed location and ultimate design of the interchange. By imposing the full requirements of the Ontario Environmental Assessment Act, the Regional Municipality of Hamilton-Wentworth would be required to re-justify this connection despite the fact that construction on the remainder of the project was well under way. The assessment process proposed by the Regional Municipality of Hamilton-Wentworth would provide an opportunity for interested and affected parties to participate in the locating and detailed design of this facility.
[26] The exemption order did impose environmental requirements on the Region, although the Region understood that it was not precluded from commencing construction on components of the project before completing the assessment process.
[27] In late 1997, the Region submitted volume 1 of a Draft Summary Report ("DSR") to DFO which described options for the construction of the RHCE to connect Highway 403 to the QEW.
[28] The DSR stated, among other things, that the Region contemplated realigning a five kilometre section of the Red Hill Creek and associated flood plain along the west side of the Expressway and that the Expressway would cross Red Hill Creek eight times.
[29] The DSR also stated that:
• Approximately 25% (or 75 hectares) of the Red Hill Valley between Mud Street and Brampton Street would be cleared as a result of project construction. Some of that area consisted of habitat considered significant and known to support rare species of vegetation and wildlife.
• Approximately 25% (or 74 hectares) of the Red Hill Valley might be negatively impacted by Expressway construction activities, although the full extent of the impact would be monitored and mitigated after construction.
• It was estimated that 40,000 trees would be removed.
• Impacts to eco-system functions along the Niagara Escarpment and along the Red Hill Valley would be high (i.e., could not be mitigated) because of the permanent loss of vegetation and wildlife habitats and the severance of a primary wildlife corridor which connects the Lake Ontario shoreline to the Niagara Escarpment and beyond.
[30] DFO subsequently advised the Region that based upon the information contained in the DSR and upon discussions with the Region, the proposal might have harmful impact upon fish and fish habitat in both the Red Hill Creek Marsh and in Van Wagner's Marsh. The harmful alteration of fish habitat was noted by DFO to be prohibited under subsection 35(1) of the Fisheries Act necessitating the issuance of an authorization under subsection 35(2) of that Act. DFO further noted that in turn this would trigger the application of the CEAA.
[31] At a meeting on May 5, 1998, the Region advised DFO that the Region would be applying to DFO for a Fisheries Act authorization. In consequence DFO advised that it would initiate the required screening process. In July of 1998, the Region submitted its application for authorization under the Fisheries Act.
[32] DFO prepared a draft scoping document which set out what the scope of the project and the scope of the assessment would be for a CEAA review of the construction of the Expressway. On October 30, 1998 a copy of the draft scoping document was provided to the Region for comment. The Region did provide comments and on January 28, 1999 DFO released the scoping document for the Environmental Assessment Screening Report of the project.
[33] Meanwhile, on December 16, 1998, representatives of DFO and the Canadian Environmental Assessment Agency ("Agency") met with representatives of the Region. Minutes of the meeting indicate that the status of matters under the CEAA, potential harmonization with the provincial process, and the potential for the referral of the project to panel review were discussed. A further meeting was held on February 19, 1999 and notes prepared by one of the Region's representatives show that the Region was told that a panel hearing was becoming "a distinct possibility" but "we are not there yet".
[34] On May 4, 1999, the Fisheries Minister wrote to the Environment Minister requesting that the Environment Minister refer the project, as scoped by DFO, to a review panel pursuant to subsections 25(a) and 25(b) of the CEAA. On May 6, 1999 following receipt of that letter, the Environment Minister referred the project to panel review. The only document before the Court evidencing the decision of the Environment Minister is a news release issued on May 6, 1999 by the Agency.
[35] On May 25, 1999, the Agency issued a public notice and draft terms of reference for the review panel. The public notice sought comment from all interested parties on the terms of reference.
[36] On July 5, 1999 after receiving comment on the draft terms of reference the Environment Minister issued the panel's terms of reference and appointed panel members.
[37] Prior to being appointed, resumes of members of the review panel were reviewed by the vice president of project delivery for the Agency and the Agency's director of project assessment, and the potential panel members were interviewed by telephone by the Agency's director of project assessment and a project assessment staff member.
[38] On July 9, 1999, the Region wrote to the Environment Minister advising that the Region would not participate in a CEAA process "with your terms of reference" and that the Region had instructed counsel to apply for "judicial review in order to obtain a court ruling that the CEAA has no application to our project".
[39] On August 4, 1999, the Region filed its application in T-1400-99 challenging the decision of the Environment Minister of July 5 appointing panel members and setting the panel's terms of reference.
[40] On August 4, 1999, the Chamber filed its application in T-1401-99 challenging the decision of the Environment Minister of July 5, 1999 to appoint Sally Lerner to the review panel.
[41] On August 11, 1999, the review panel released draft EIS Guidelines for public comments, and in September of 1999 the panel held public meetings in the Hamilton area to receive comments on the draft guidelines. On October 15, 1999, the panel released its final EIS Guidelines.
[42] On September 14, 1999, the Region, through its counsel, wrote to DFO requesting that consideration of the Region's request for an authorization under subsection 35(2) of the Fisheries Act be suspended in light of the pending Court application, recent information provided to the Region by its fisheries consultant, and DFO's prior advice that DFO required further information before the application could be processed.
[43] On November 4, 1999, the Region wrote to the Environment Minister asking that the appointment of Nick Mulder to the review panel be revoked.
[44] On November 15, 1999, the Region filed its application in T-1993-99, in essence challenging the consideration of the project under the CEAA, the appointment of Nick Mulder, and the issuance of the EIS Guidelines.
[45] On January 12, 2000, the Region, through its counsel, advised the panel that it would not participate in the panel's process of review while its applications for judicial review were before the Court.
[46] On February 3, 2000, the panel suspended its review until the Region submitted its Environmental Impact Statement.
3. PRELIMINARY ISSUES: T-1400-99 AND T-1993-99
[47] Three preliminary matters were raised in the context of these two applications. They were:
(i) the permissible scope of the applications;
(ii) the admissibility of certain affidavit evidence filed by the applicant; and
(iii) the use of evidence said to relate to confidences of the Queen's Privy Council.
[48] Each preliminary issue will be dealt with in turn.
(i) The permissible scope of these applications
[49] During the course of the proceedings the respondents moved on an interlocutory basis successfully before the learned prothonotary Lafrenière for an order striking out significant portions of the notice of application filed in T-1400-99 so as to substantially reduce the scope of the judicial review. The Region appealed that order and, in the alternative, moved for leave to amend the application and for an extension of time. Concurrent with that appeal the respondents moved to strike out significant portions of the notice of application filed in T-1993-99.
[50] Those motions were heard together. The appeal from the prothonotary's order was allowed, and the motion to strike out significant portions of the application in T-1993-99 was dismissed. The resultant orders specifically reserved to the respondents the right to argue at the hearing of the judicial review applications that the application for judicial review of the May 4 and May 6, 1999 decisions was brought out of time and should be dismissed, and to otherwise argue that delay is a bar to the claim for prerogative remedies.
[51] The motion brought by the Region for an extension of time and for leave to amend the notice of application filed in T-1400-99 to specify that it included a review of the request of the Fisheries Minister on May 4, 1999 and of the decision of the Environment Minister on May 6, 1999 was adjourned sine die.
[52] In view of the fact that the appeal from the order striking portions of the notice of application was successful, it was not necessary for the Court to rule on the motion to amend. However, at the request of the parties I, as the judge who dealt with the interlocutory motions, indicated what my decision would have been had the appeal not been allowed. I indicated that, applying the principles set out in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (F.C.A.) and Independent Contractors and Business Association v. Canada (Minister of Labour) (1998), 225 N.R. 19 (F.C.A.), I would have granted leave to amend, the necessary extension of time, and leave pursuant to Rule 302 of the Federal Court Rules, 1998 in respect of the Fisheries Minister's request of May 4, 1999 and the decision of the Environment Minister on May 6, 1999. I indicated, however, that I would not have granted leave to assert that authorization was not required under subsection 35(2) of the Fisheries Act. It would follow, because subsection 35(2) is included in the list of laws which trigger the application of the CEAA, that the Region would be obliged to accept as a matter of law that the consequence of having made an application to DFO for an authorization under subsection 35(2) would be to trigger the application of the CEAA.
[53] No appeal was taken from those orders.
[54] The Region and the respondents did pursue these matters as preliminary matters at the hearing into the merits of the applications.
[55] It was the position of the respondents that, subject to preserving their rights of appeal, they were content to proceed in the application in accordance with the disposition indicated in my earlier reasons, subject to clarification as to whether the Region could assert that the CEAA did not apply to the project.
[56] In response, the Region advised that, subject to its appeal rights, it too did not seek to revisit the earlier decision. It sought leave, if necessary, so that the Court could consider the propriety of the May 4 and May 6 ministerial actions, but did not seek leave for any extension of time with respect to any "decision" prior to May 4, 1999. The Region advised that it did not take issue with the prior indication that the Court would not have granted leave to consider the need for a Fisheries Act authorization. However, the Region did assert its right to rely upon jurisdictional arguments to the effect that the CEAA could not be applied in excess of its statutory limits, regardless of any initial assumption by the Region that it would apply.
[57] After hearing argument, I reserved my decision on the preliminary issue so as to allow the parties to argue all of the issues fully before the Court.
[58] The issues which the Region sought to raise in these applications are:
i) whether the Minister's referral of the matter to panel review and the panel's terms of reference are constitutionally or statutorily ultra vires;
ii) whether the EIS Guidelines are statutorily ultra vires;
iii) whether there was jurisdiction to refer the matter to panel review, to appoint the panel, and to set the panel's terms of reference;
iv) whether the CEAA applies to the project; and
v) whether the panel is disqualified by reason of Mr. Mulder's appointment.
[59] As noted above, the project was referred to a review panel on May 6, 1999, the panel members were appointed and the panel's terms of reference were set on July 5, 1999 and the EIS Guidelines were issued on October 15, 1999.
[60] The first notice of application was issued on August 4, 1999, within thirty days of July 5, 1999. That application was expressed to be an application for judicial review in respect of the decision of the Environment Minister on July 5 to appoint the members to the review panel to conduct a full public review of the need for, alternatives to and the environmental effects of the Region's completion of the Expressway, and the decision setting the terms of reference for the panel review. This was a timely challenge to the panel's terms of reference and to the appointment of the panel members.
[61] The second notice of application was issued on November 15, 1999 and it challenged, among other things, Mr. Mulder's appointment, the continuing failure to remove Mr. Mulder, and the issuance of the EIS Guidelines. This was not alleged to be other than a timely attack upon the EIS Guidelines.
[62] What is substantially in dispute as a preliminary issue is whether the challenges to the decisions of May 4, 1999 and May 6, 1999 are barred by the provisions of subsection 18.1(2) of the Federal Court Act, and whether the issues which the Region asserts as to the applicability of the CEAA to the project are barred due to delay.
[63] In arguing that the CEAA is not applicable to the project, the Region seeks to assert that the project is excluded from the operation of the CEAA by virtue of subsection 74(4) of the CEAA, that the project was not a "project" to which the CEAA applied, and that there was no valid trigger for the application of the CEAA.
[64] The respondents say that clarification is required of my earlier remarks, made at paragraph 52 of my prior reasons reported at (2000) 187 F.T.R. 287 (F.C.T.D.) allowing the Region's appeal from the order striking portions of the notice of application in T-1400-93, to the effect that while if necessary I would have allowed some amendments I would not have granted "leave to assert that authorization is not required for the Expressway Project under subsection 35(2) of the Fisheries Act, or to assert that the need for that authorization did not trigger the application of the CEAA" [underlining added].
[65] Neither consent nor delay can confer any power to act beyond limits imposed by legislation (see, for example, Merck Frosst Canada Inc. v. Apotex Inc., [1997] 2 F.C. 561 (F.C.A.); leave to appeal denied [1997] S.C.C.A. No. 113). Thus, the respondent Ministers could not refer the project to panel review, or apply the CEAA, in excess of its statutory limits. Arguments directed to the statutory limits of the CEAA are therefore, in my view, not barred. If the CEAA, as a matter of law, is inapplicable to the project, any referral made under that Act is a nullity because the referring Minister would have no jurisdiction to refer the project to panel review. The Region's apparent assumption that the CEAA applied and the Region's failure to challenge the May 4 or May 6 decisions could not confer jurisdiction on the referring Minister.
[66] That statutory requirements must be met and that the failure to challenge an earlier step does not change those requirements was recognized by the Court of Appeal in Alberta Wilderness Association v. Canada (Minister of Fisheries and Oceans), [1999] 1 F.C. 483 (F.C.A.).
[67] Further I find that, as argued by the Region, the primary relief which is sought is prohibition of the panel from proceeding with the panel review. The applications are in respect of present acts and intended future acts implementing the prior decision to refer this matter to panel review. Pursuant to the principle articulated by the Court of Appeal in Krause v. Canada, [1999] 2 F.C. 476 (F.C.A.) those implementing actions are reviewable.
[68] This conclusion makes the motion to amend redundant.
[69] The Region is entitled to argue that the CEAA does not apply either because of the effect of subsection 74(4) of the Act or because the project was not a "project" to which the CEAA applies. These arguments are available because the CEAA cannot be applied in excess of its statutory limits.
[70] Nothing in this conclusion allows the Region now to challenge on other than jurisdictional grounds the need for a Fisheries Act authorization. It is simply too late to raise this issue and there is, in my view, no basis for allowing any extension of time for the matter to be reviewed because it was never the intention of the Region to challenge the need for a Fisheries Act authorization.
[71] I reach this conclusion because in July of 1998 the Region forwarded to DFO an application for a Fisheries Act authorization. In its covering correspondence, the Region stated that:
This early submission will facilitate the approval process by providing DFO with the ability to initiate a screening under the Canadian Environmental Assessment Act.
[72] Section 35 of the Fisheries Act has been in force for many years. Notwithstanding whether the CEAA applies to the project, I have concluded that the Region must comply with the process required under the Fisheries Act absent a jurisdictional reason. I will comment later upon the Region's argument that no permit is required under the Fisheries Act.
(ii) The admissibility of certain affidavit evidence tendered by the applicant
[73] At the commencement of the hearing the respondents moved for an order:
a) striking out the affidavits of Tony Battaglia, Nicolas Catalano, Stephen Janes, Ronald Marini, Sharon Fortis, Cameron Portt, Hart Solomon, Ian Williams and Tony Yarranton;
b) in the alternative, striking out portions of those affidavits as set out in a schedule to the notice of motion; and
c) striking out portions of other affidavits also as particularized in the schedule to the notice of motion.
[74] As a result of discussions with the case management officer it was agreed by the parties that this motion would not be argued in oral argument as a preliminary motion, but rather, so that the impugned material could be reviewed in the proper factual matrix, counsel would argue the admissibility of the impugned evidence in the course of their submissions on the substantive issues. Due to time constraints it developed at the hearing that the respondents did not make oral argument on their motion, but rather relied upon their written motion record. As well, on the final day of the hearing, the respondents indicated that they were narrowing the scope of their objections as set out in correspondence to be delivered following the conclusion of the oral hearing. That correspondence when delivered indicated that while the respondents still sought the relief set out in paragraph (a) above, the number of matters within items (b) and (c) above was reduced.
[75] The impugned evidence is voluminous. The bases for the objection are that the affidavits contain argument or opinion and that irrelevant facts and exhibits are not properly in evidence before the Court.
[76] I do not think it necessary in these reasons to deal seriatim with the respondents' objections. Rather, I have noted the evidence which the respondents impugned and will deal in these reasons with their objections to the extent that I find the impugned evidence in any way potentially relevant to the matters that I reach conclusions upon. Where that is the case my ruling on admissibility of the evidence and the related analysis will be set out in these reasons.
(iii) The use of evidence relating to confidences of the Queen's Privy Council
[77] At the outset of the hearing, counsel appeared on behalf of the Privy Council advising that five documents in respect of which a claim to cabinet confidence had been asserted have found their way into the applicant's record. Counsel did not seek an order expunging the material at issue from the record, but rather sought an order precluding counsel and the Court from referring to the material at issue. A temporary order was made for the duration of the time required by counsel for the Region to respond to this request. After hearing further argument, in the absence of a motion to expunge and in the absence of evidence as to inadvertent disclosure, for reasons given orally, the temporary order was set aside and I declined to make an order of the nature requested. However, counsel were asked to be mindful of the claims. Subsequently no reference was made by counsel to any of the material in the record in respect of which a claim had been made under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5 and no reference to that material is contained in these reasons.
4. STANDARD OF REVIEW
[78] Case law from this Court has held that the interpretation of the CEAA raises a question of law, so that the standard of review on issues involving jurisdiction or the proper interpretation of the Act is correctness (Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (F.C.A.) at paragraph 10, leave to appeal dismissed [1999] S.C.A.A. No. 585).
[79] Similarly, the Federal Court of Appeal has recently held that with respect to discretionary decisions of substance made pursuant to authority granted under sections 15 and 16 of the CEAA, the standard of review is reasonableness (Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), [2001] F.C.J. No. 18, A-642-99 (January 10, 2001) (F.C.A.) at paragraph 55). This reflects, particularly, the absence of a privative provision and the minimal level of expertise in administering the Act.
[80] The parties made widely disparate submissions with respect to the standard of review applicable to the Minister's decision to appoint specific members of the review panel. The respondents submitted that due to the political status and the level of accountability of the decision-maker, the discretionary nature of the decision, and the fact that an appointee deals with broad conceptions of public interest, the standard of review is closer to the deferential end of the continuum. Not surprisingly, the applicants in all of the proceedings submitted that the decision to appoint individual members is not deserving of any deference due to the fact that the CEAA grants no discretion to the Minister with respect to the requirement that panel members be unbiased and free from any conflict of interest.
[81] Had it been necessary for me to consider the issue, I would have concluded that the standard of review is near correctness. This standard reflects the fact that the question of an appointee's eligibility is not one of policy and the absence of a privative clause. This also recognizes that discretionary decisions must be made within the jurisdiction conferred by the statute. As noted by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 53:
... it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis [citation omitted], in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [citation omitted]).
5. DOES THE CEAA APPLY TO THE COMPLETION OF THE RHCE?
[82] As noted above, the Region argues that the CEAA does not apply to the completion of the RHCE because of the operation of subsection 74(4) of the Act; because the construction is not a "project" as contemplated by the CEAA; and because there was no valid trigger to its application. I will now address these arguments in the order presented.
(i) Is application of the CEAA excluded by operation of subsection 74(4) of the Act?
[83] The CEAA received royal assent on June 23, 1992 and came into force on days fixed by order of the Governor in Council. Sections 61 to 70, 73, 75 and 78 to 80 came into force on December 22, 1994, while the remaining provisions came into force on January 19, 1995. The CEAA replaced the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 ("EARPGO").
[84] The transitional provisions are set out in section 74 of the CEAA and provide:
• in subsection (1), that the EARPGO would continue to apply in respect of any proposal that prior to the coming into force of section 74 was referred to the Minister for public review and for which an environmental assessment panel was established;
• in subsection (2), that the EARPGO would continue to apply in respect of any proposal for which an environmental screening or initial assessment had been commenced before the coming into force of section 74 unless the proposal is referred to a panel, at which time the CEAA will apply; and
• in subsection (3), that where a proponent proposed to carry out in whole or in part a project for which an environmental screening or an initial assessment had been conducted in accordance with EARPGO, but that the project did not proceed or different work was proposed, or the manner in which the project was to be carried out had changed, or where the renewal of a licence, permit, approval or the like was sought, the responsible authority might use or permit the use of the earlier environmental screening.
[85] Subsection (4) is the subsection of potential application to the present facts, and it states:
74(4) Where the construction or operation of a physical work or the carrying out of a physical activity was initiated before June 22, 1984, this Act shall not apply in respect of the issuance or renewal of a licence, permit, approval or other action under a prescribed provision in respect of the project unless the issuance or renewal entails a modification, decommissioning, abandonment or other alteration to the project, in whole or in part.
74(4) Dans les cas où la construction ou l'exploitation d'un ouvrage ou la réalisation d'une activité concrète a été entamée avant le 22 juin 1984, la présente loi ne s'applique à la délivrance ou au renouvellement d'une licence, d'un permis, d'une autorisation ou à la prise d'une autre