Save Halkett Bay Marine Park Society v. Canada (Environment)

Save Halkett Bay Marine Park Society v. Canada (Environment)
Court (s) Database
Federal Court Decisions
Date
2015-03-10
Neutral citation
2015 FC 302
File numbers
T-10-15
Decision Content
Date: 20150310
Docket: T-10-15
Citation: 2015 FC 302
Ottawa, Ontario, March 10, 2015
PRESENT: THE CHIEF JUSTICE
BETWEEN:
SAVE HALKETT BAY MARINE PARK SOCIETY
Applicant
and
MINISTER OF THE ENVIRONMENT & ARTIFICIAL REEF SOCIETY OF BRITISH COLUMBIA
Respondents
JUDGMENT AND REASONS
[1] In this Application, Save Halkett Bay Marine Park Society seeks judicial review of a Disposal at Sea Permit granted by the Minister of the Environment to the Artificial Reef Society of British Columbia. That permit authorizes the sinking of the decommissioned ship HMCS Annapolis, to turn it into an artificial reef at Halkett Bay Marine Park, off the coast of Vancouver.
[2] The Applicant seeks to have the permit quashed on the ground that the Minister was prohibited by law from authorizing the disposal at sea of a ship containing allegedly banned substances in its hull, namely, dibutyltin dichloride and tributyltin chloride (“TBTs”). In the alternative, the Applicant asserts that the permit should be quashed on the basis that its issuance was unreasonable in the circumstances.
[3] The Respondents dispute both of these contentions and maintain that this Application was filed too late.
[4] The TBTs alleged to be in the ship’s hull were common ingredients in “anti-fouling” paint that was used on ships’ hulls during the period that the HMCS Annapolis was in active service, to prevent barnacles and other marine species from growing on the ships.
[5] For the reasons set forth below, I have concluded that this Application was in fact filed too late. In any event, I have also concluded that (i) the Minister was not prohibited by law from issuing the permit, and (ii) the issuance of the permit was not unreasonable, particularly given:
a. The anti-fouling coating of the ship’s hull was reasonably determined to be in a non-active state, in accordance with Environment Canada’s Clean-up Standard for Disposal at Sea of Vessels, Aircraft, Platforms & Other Structures (the “Clean-up Standard”);
b. The amount of TBTs in the paint samples allegedly collected from the hull of the HMCS Annapolis on behalf of the Applicant is the equivalent of approximately 0.004% - 0.008% of what would be expected to be found in fresh anti-fouling paint;
c. The provisions in the Clean-up Standard pertaining to anti-fouling paints are consistent with those in the corresponding standard that exists in the United States and with the practices followed in Australia;
d. Given that the Annapolis was last painted with anti-fouling paints approximately 20 years prior to the issuance of the Permit, the Minister’s conclusion that any TBTs in the hull of the ship are no longer in an active state was also consistent with the standard that has been adopted in the United Kingdom;
e. An extensive and thorough analysis (unrelated to TBTs) was conducted on behalf of the Minister over several years, prior to the issuance of the permit.
I. The Parties A. The Applicant [6] Save Halkett Bay Marine Park Society (the “Society”) is comprised of property owners and full or part-time residents of Halkett Bay, Gambier Island, British Columbia.
B. The Artificial Reef Society of British Columbia (“ARSBC”) [7] The ARSBC is a non-profit society based in Vancouver, British Columbia. Its mission is to create and promote sustainable artificial reefs in British Columbia and around the world for the enjoyment of recreational divers and the protection of marine habitat.
[8] Since 1991, the ARSBC has successfully sunk six large ships and one Boeing 737 as artificial reefs in British Columbia.
[9] In establishing its reefs, a central objective of the ARSBC is to attract marine life and to provide an environment in which it can flourish.
C. The Minister of the Environment (the “Minister”) [10] The Minister, the Honourable Leona Aglukkaq, is the person responsible for issuing the type of permit required to dispose of a ship at sea, as further explained below. In fulfilling that function, she is supported by staff in the department of Environment Canada.
II. Background [11] The HMCS Annapolis (the “Annapolis”) was a destroyer in the Royal Canadian Navy fleet from 1964 to 1996. It was decommissioned in 1998 and sold to the ARSBC on March 11, 2008.
[12] The ARSBC acquired the Annapolis for the purpose of turning it into an artificial reef.
[13] In June 2008 the Annapolis was moved from the federal facility in Esquimalt, BC to Port Graves Bay, Gambier Island (near Halkett Bay) to be prepared for sinking as an artificial reef. It has been moored at that location ever since.
[14] The ARSBC subsequently selected Halkett Bay Marine Park as the site for the artificial reef, in part because of the opportunity to repair and restore the habitat in Halkett Bay, which apparently has been damaged by decades of log booming.
[15] In order to sink the Annapolis as an artificial reef, the ARSBC was required to obtain regulatory approvals from the federal Departments of Fisheries and Oceans (“DFO”) and Transport Canada. It was also necessary to obtain permits from the Minister and the provincial Ministry of Environment.
[16] By the fall of 2012 the ARSBC had received the requisite approvals from DFO and Transport Canada. In addition, it obtained support for the project from the Squamish Nation and the Tsleil-Waututh Nation.
[17] However, as a result of concerns expressed by the Society in late 2012 regarding the potential presence of polychlorinated biphenyls (“PCBs”) on the ship, the ship was tested and found to contain levels of PCBs that could pose a risk if accidentally released into the environment.
[18] In June 2013, the ARSBC was notified of this fact by Environment Canada and informed that a disposal at sea permit would not be issued until the PCBs were removed from the vessel.
[19] The ARSBC then withdrew the initial permit application that it had submitted and began to work with Environment Canada to remove the PCBs from the vessel. An Order of this Court was required to conduct that remediation work, as the ship had been placed under arrest in April, 2013, pursuant to an action commenced by W.R. Marine Services, which has been providing mooring services for the ship, at Port Graves Bay. That Order to conduct the remediation work was issued in February 2014. A subsequent Order releasing the ship from arrest was then orally issued by Prothonotary Lafrenière on November 4, 2014. (A written order was subsequently released on November 24, 2014.)
[20] In July 2014, the ship was inspected and certified to be free from PCBs in solid form with concentrations not exceeding the 50ppm threshold set forth in the applicable regulations. The expenses associated with the work to remove the PCBs from the ship, which was conducted by a third party contractor on behalf of Environment Canada, totalled approximately $888,000.
[21] Later that month, the ARSBC reapplied for a permit to dispose of the Annapolis at sea.
[22] On October 2, 2014, the Minister issued the Disposal at Sea Permit No 4543-2-03607 (the “Permit”).
[23] On October 9, 2014, the Society filed a Notice of Objection pursuant to subsection 332(2) of the Canadian Environmental Protection Act, SC 1999, c 33 (the “CEPA”) and requested that the Minister convene a Board of Review in respect of the Permit. The Society repeated that request in letters dated December 9, 2014 and December 17, 2014.
[24] On November 3, 2014, the provincial Ministry of Environment issued Park Use Permit No. 17257 authorizing the ARSBC to sink the Annapolis in Halkett Bay Marine Park.
[25] By that time the ARSBC had also re-confirmed its authorization from Transport Canada and the DFO.
[26] On January 6, 2015, the day following an announcement by the ARSBC that it planned to move the ship into Halkett Bay on January 13, 2015 and sink it a few days later, the Society filed its Application in this proceeding.
[27] On January 12, 2015, Justice Shore issued an Order for a temporary stay of proceedings, which prevented the Annapolis from being moved pending the hearing of a motion by the Society for an interlocutory stay of the Permit and an interlocutory injunction preventing such moving and sinking.
[28] That Order was superseded by an Order, on consent, of Justice Simpson, dated January 30, 2015. Among other things, that Order established procedures for the expedited hearing of this Application, and prohibited the moving and sinking of the vessel until a decision was issued on the Application.
[29] Due to the delays resulting from proceedings in this Court, the ARSBC informed the Court that it had sought and recently obtained confirmation from the DFO that it will not prevent the sinking from proceeding after February 1, 2015.
[30] The ARSBC has also applied to Environment Canada for an amendment to the Permit, to allow the sinking to proceed as soon as possible in light of the increasing risk of an accidental sinking at an unwanted location. During the hearing of this Application, the ARSBC confirmed that this request was still outstanding.
III. The Minister's decision to issue the Permit [31] The Permit is in excess of four pages and sets forth various terms, conditions and other information.
[32] It does not appear that the Minister explained the basis for the issuance of the Permit in any cover letter or other document that was issued at that time or in the weeks that followed.
[33] Among other things, the Permit identifies the Annapolis as being the “waste or other matter to be disposed of,” and describes it as falling into the following category: “Ships, aircraft, platforms or other structures from which all material that can create floating debris or other marine pollution has been removed to the maximum extent possible if, in the case of disposal, those substances would not pose a serious obstacle to fishing or navigation after being disposed of.”
[34] The Permit is valid from October 14, 2014 to October 13, 2015. One of the terms of the Permit prevents the ship from being transported and disposed during the period February 1, 2015 to August 14, 2015.
[35] The method of disposal is described as being “scuttle[ing] by explosive cutting allowing water to enter [the] hull.”
[36] Other terms in the Permit include that the ARSBC and its contractors are subject to inspection pursuant to Part 10 of the CEPA and that an Enforcement Officer designated pursuant to subsection 217(1) of the CEPA and/or a representative of Environment Canada be allowed to board and inspect the ship prior to its disposal.
[37] In addition, section 9.7 of the Permit provides that, prior to disposal, the ship must meet the criteria stipulated in the December 2007 version of the Clean-up Standard.
[38] On January 7, 2015, the day following the filing of this Application, the Minister declined the Society’s request for a Board of Review to be convened in respect of the issuance of the Permit.
[39] Among other things, the Minister’s response summarized the concerns that had been expressed by the Society and assured the Society that its concerns had been taken seriously and had informed the scope of the assessment that was carried out. The response then concluded as follows:
I am satisfied with the extent to which Environment Canada has engaged your client, and that the concerns you raised have been taken into account. I believe that the former HMCS Annapolis can be disposed of in a manner that does not pose a significant risk to the marine environment or human health.
Given the above, I decline the Save Halkett Bay Marine Park Society’s request that I establish a board of review under subsection 333(5) of the Canadian Environmental Protection Act, 1999.
Please accept my best wishes.
IV. Relevant Legislation [40] Pursuant to subsection 18.1(2) of the Federal Courts Act, RSC 1985, c F-7, “[a]n application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated ... or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.”
[41] The framework established in the CEPA for the disposal of waste or other matter at sea is set out in Part 7, Division 3 and Schedules 5 and 6 of that legislation.
[42] In brief, section 125 of CEPA prohibits the disposal of substances at sea unless the substance is “waste or other matter” and the disposal occurs in accordance with a Canadian permit.
[43] “Waste or other matter” is defined in subsection 122(1) to mean “waste or other matter listed in Schedule 5.”
[44] Pursuant to section 3 of Schedule 5, ships fall within the definition of “waste or other matter,” provided that:
… all material that can create floating debris or other marine pollution has been removed to the maximum extent possible if, in the case of disposal, those substances would not pose a serious obstacle to fishing or navigation after being disposed of.
[45] Pursuant to subsection 127(1) of the CEPA, the Minister may issue a permit authorizing the disposal of waste or other matter. However, subsection 127(3) of CEPA provides that, before issuing a permit under subsection 127(1), the Minister shall “comply with Schedule 6 and shall take into account any factors that the Minister considers necessary.”
[46] Schedule 6 of CEPA sets out the assessment and analysis required in order to be able to make a permit decision. As no issue has been raised in respect of Schedule 6, it will not be further discussed in this decision.
[47] Pursuant to section 134 of the CEPA, any person may file with the Minister a notice of objection requesting that a Board of Review be established under section 333 in respect of the issuance of a permit. Where such a notice is filed within the prescribed period of time (7 days), the Minister may establish a Board of Review to inquire into the matter raised by the notice (subsection 333(5)). Upon receipt of the Board’s report, the Minister may take further steps regarding the permit if she considers it advisable to do so (subsection 129(3)).
[48] In October 2001, the International Maritime Organization adopted the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001 (the “Convention”). For the purpose of this Application, the relevant provision of that instrument is Article 4(1), which states:
(1) In accordance with the requirements specified in Annex 1, each Party shall prohibit and/or restrict:
(a) The application, re-application, installation, or use of harmful anti-fouling systems on ships referred to in article 3(1)(a)or(b); and
(b) The application, re-application, installation or use of such systems, whilst in a Party’s port, shipyard, or offshore terminal, on ships to in article 3(1)(c).
and shall take effective measures to ensure that such ships comply with these requirements.
[49] In apparent compliance with the IMO Convention, and pursuant to the Canada Shipping Act, 2001, c 6 (the “CSA”), Parliament passed the Regulations for the Prevention of the Pollution from Ships and for Dangerous Chemicals, SOR/2007-86, which has now been replaced by the Vessel Pollution and Dangerous Chemicals Regulations, SOR/2012-69 (“Vessel Pollution Regulations”). For the purposes of this Application, the relevant provision is subsection 127(1), which states:
(127) (1) The authorized representative of a vessel must ensure that it does not have an anti-fouling system that contains any organotin compounds that acts as biocide.
[50] The full text of the various provisions discussed above is set forth in Appendix 1 to these reasons.
V. Issues [51] The issues raised on this Application are as follows:
A. Was this Application filed too late?
B. Did the Minister err by failing to consider and apply an outright ban on TBTs that the Society asserts exists in Canada?
C. Was the issuance of the Permit unreasonable?
[52] In its written submissions, the Society also alleged that the Minister’s denial of its request for a Board of Review to challenge the Permit breached its right to procedural fairness. However, it abandoned that submission during the hearing of this Application (Transcript, at 18-20).
VI. Standard of Review [53] The Society’s assertion that the Minister failed to consider and apply an outright ban on TBTs that it maintains exists has a component that is purely legal and a component that is either factual in nature or is a question of mixed fact and law.
[54] The purely legal component concerns subsection 127(1) of the Vessel Pollution Regulations and certain provisions in the CEPA, which the Society states establish an outright ban on TBTs. This Court’s review of whether those provisions in fact establish an outright ban on TBTs in Canada that rendered the issuance of the Permit contrary to law is conducted on a correctness standard. This is because this is “a pure question of statutory construction embodying no discretionary element,” the Minister “cannot claim to have any expertise over and above” that of the Court in respect of such questions, and there is no privative clause in the CEPA (Canada (Citizenship and Immigration) v Kandola, 2014 FCA 85, at para 43). Moreover, insofar as the Vessel Pollution Regulations are concerned, they were passed pursuant to the CSA, above, which is not the Minister’s “home statute” and no evidence was adduced to demonstrate that she has any particular familiarity with that statute (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, at para 50).
[55] The factual component of the issue that has been raised concerning the Vessel Protection Regulations is whether the Annapolis has “an anti-fouling system that contains any organotin compounds that acts as biocide,” within the meaning of subsection 127(1) of those regulations. Irrespective of whether this is a purely factual matter, or is a matter of mixed fact and law, the applicable standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at paras 51 – 53 (“Dunsmuir”)).
[56] The Society’s assertion that the Minister’s decision was unreasonable is also subject to review on a reasonableness standard (Dunsmuir, above).
VII. Evidentiary Issue [57] The Respondents submit that the “scientific evidence” adduced by the Society should be struck on the basis that permitting the Society to tender such evidence would contravene the settled rule that, on a judicial review under subsection 18.1(1) of the Federal Courts Act, above, the scope of admissible evidence is limited to the evidence that was before the decision-maker (Assn of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22, at para 19 (“Assn of Universities and Colleges”); Ochapowace First Nation v Canada (AG) 2007 FC 920, at para 9 (“Ochapowace”).
[58] Accordingly, the Respondents submit that paragraphs 10-15 and 17, as well as Exhibits D through O of the affidavit of William Andrews (the “Andrews Affidavit”), together with the entire affidavits of Rachel Barsky dated January 9, 2015 (the “Second Barsky Affidavit”) and January 20, 2015 (the “Third Barsky Affidavit”), should be struck on the basis that the affiants purport to give scientific evidence that was not before the Minister when she issued the Permit. The Respondents make essentially the same submission with respect to the scientific evidence provided in the affidavit of Dr. Emilien Pelletier (the “Pelletier Affidavit”).
[59] As recognized in both Assn of Universities and Colleges and Ochapowace, above, the rule that the scope of admissible evidence is limited to the evidence that was before the decision-maker is subject to certain exceptions. One of those exceptions is for material that is considered to be general background information that would assist the Court (Assn of Universities and Colleges, above, at para 20(a); Ochapowace, above).
[60] However, in discussing this exception in Assn of Universities and Colleges, above, Justice Stratas cautioned that “[c]are 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.” Applying this principle, he proceeded to strike the affidavit in question, on the basis that much of what was “said to be ‘context and background’ is really evidence that goes to the merits of the matter before the Board” (Assn of Universities and Colleges, above, at para 26). Justice Zinn reached a similar conclusion in Alberta Wilderness Assn v Canada (Minister of Environment), 2009 FC 710, at paras 33-34).
[61] In my view, the evidence to which the Respondents object, described at paragraph 58 above, is similarly not “context and background” but rather is evidence that goes to the merits of the matter that was before the Minister. As the Minister confirmed in her letter to the Society’s counsel dated January 7, 2015, the interventions of the Society were “taken seriously by Environment Canada and informed the scope of the assessment that was carried out.” The Minister proceeded to note: “I am satisfied with the extent to which Environment Canada has engaged your client, and that the concerns you raised have been taken into account. I believe that the former HMCS Annapolis can be disposed in a manner that does not pose a significant risk to the marine environment or human health” (emphasis added).
[62] The Society also referred to Hartwig v Saskatoon (City) Police Assn, 2007 SKCA 74, at paras 30-33; and SELI Canada Inc v Construction and Specialized Workers’ Union, Local 1611, 2011 BCCA 353 at paras 77-85. However, those cases are distinguishable as they concerned a dispute over the admissibility of evidence that was before the lower tribunal. Another case relied upon by the Society, Da’naxda’xw/Awaetlala First Nation v British Columbia Hydro and Power Authority, 2015 BCSC 16, at paras 173-179 is also distinguishable, on the basis that the evidentiary issue in dispute concerned evidence relating to the history of dealings between the petitioners and the province or BC Hydro, which was found to be relevant to the allegation that the Crown had breached its duty to consult.
[63] Notwithstanding the foregoing, I believe that on the very particular facts of this case the disputed affidavit evidence ought to be admitted.
[64] As Justice Stratas observed in Assn of Universities and Colleges, above, at para 20, the list of exceptions to the general rule against admitting evidence that was not before the decision-maker whose decision is subject to judicial review “may not be closed.” Other exceptions may exist, particularly where they are “not inconsistent with the differing roles of the judicial review court and the administrative decision-maker” and where they may “facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker.”
[65] An important issue that was before the Minister was the nature of the “risk to the marine environment or human health.” In my view, this is an exceptional public interest issue that warrants a relaxation of the typical rules of evidence pertaining to the judicial review of a decision made by a Minister or other public official in respect of such an issue. If there is scientific evidence that may demonstrate an unacceptable risk to human health or the environment, that evidence should be admissible on a judicial review of a decision that focused on that issue. This is particularly so if the evidence was not before the Minister or other public official. The public would be justified in expecting nothing less.
[66] I am satisfied that admitting scientific evidence in this context would not be inconsistent with the differing roles of this Court and the Minister or other public official, and would facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker (Kwicksutaineuk Ah-Kwa-Mish First Nation v Canada (AG), 2012 FC 517, at para 71).
[67] Where scientific evidence demonstrates, in a clear and compelling fashion, the existence of an unacceptable risk to the environment or human health that was not considered by a Minister or other public official, that may provide a basis for quashing the decision and returning the matter to such decision-maker.
[68] As a practical matter, nothing turns on my decision to admit the disputed scientific evidence, as I have determined that the evidence in dispute is inconclusive, in terms of assisting me to determine whether any TBTs that may exist in the hull of the Annapolis present a real prospect of causing a material risk to human health or the environment. Stated differently, that evidence does not assist the Court in determining whether the Minister’s decision to issue the Permit was unreasonable, in the sense of not being within “a range of possible, acceptable outcomes which are defensible in fact and law” (Dunsmuir, above, at para 47).
VIII. Analysis A. Was this Application filed too late? [69] The Respondents submit that this Application should be dismissed on the basis that it was not commenced within the 30 day time limit set forth in subsection 18.1(2) of the Federal Courts Act, above. I agree.
[70] Given that the Permit was issued on October 2, 2014, that limit expired on or about November 2, 2014. This Application was not filed until January 6, 2015, more than two months beyond that limit.
[71] The Society takes the position that “the doctrine of laches does not apply in this case, but if it does, it is the Minister of Justice who has been late in raising this issue.”
[72] The Respondents’ submission is not based on the equitable doctrine of laches, but rather on the statutory limitation set forth in section 18.1(2) of the Federal Courts Act, above. Moreover, I agree with the Respondent Minister that the circumstances of this case are such that the Respondents should not be prejudiced by the fact that they did not raise the issue of lateness until they filed their written submissions on this Application. Those circumstances are that “all the parties to these proceedings took a very cooperative approach in getting this to judicial review on a very expedited basis so that the issue could be addressed because there were concerns about the urgency of the matter given the condition of the vessel” (Transcript, at 193-194).
[73] When pressed during the hearing on whether there is any legal principle that required the Respondents to make their submissions regarding lateness at an earlier point in time than they did, such as in the hearing before Justice Shore on January 12, 2015 or when the matter came before Justice Simpson shortly thereafter, counsel to the Society replied in the negative (Transcript, at 90-91).
[74] Nevertheless, counsel to the Society asserted that this Application is framed as seeking judicial review in respect of the matter of the Minister’s issuance of the Permit. Counsel explained: “This does not attack a decision or order, but a course of conduct of the Minister” (Transcript, at 91). Notwithstanding that the Society had previously abandoned its separate challenge of the Minister’s decision not to establish a Board of Review, counsel maintained that the course of conduct being attacked includes the actions of the Minister from the time the Permit was issued on October 2, 2014, until the Society filed this Application on January 6, 2015.
[75] In support of this particular position, the Society relies on Krause v Canada, [1999] 2 FC 476 (“Krause”) and Airth v Canada (Minister of National Revenue), 2006 FC 1442 (“Airth”), where a distinction was drawn between a “decision or order” to which the 30 day limit described in subsection 18.1(2) applies and a broader “matter” contemplated by subsection 18.1(1), to which that limit does not apply.
[76] The Respondent Minister maintains that Krause and Airth, above, are distinguishable on the basis that they each concerned a course of conduct on the part of the respondent Minister that extended over a period of time that was broader than the making of a single decision or order, as contemplated by subsection 18.1(2). I agree.
[77] In Krause, the appellants challenged “a series of annual decisions reflective of the ongoing policy or practice of the respondent over time” (Krause, above, at paras 11 and 23). Likewise, in Airth, it was evident that the subject matter of the judicial review application was not just a single decision, but rather a course of conduct that “is replete with matters between the Canada Revenue Agency, the RCMP and the Vancouver Policy, the use to be made of the information demanded, the purposes of the Minister, the alleged breaches of the confidentiality provisions of the Income Tax Act, the plans and actions of the federal officials and the breaches of Charter rights flowing from this conduct” (Airth, above, at paras 8-9).
[78] I also agree with the Respondents that it is abundantly clear from the Notice of Application filed by the Society that the subject “matter” of this Application is solely the Minister’s decision to issue the Permit. This is clear from the opening paragraph of the Application, which is confined to the “issuance of the [Permit].” Likewise, the statement of relief sought is focused on the Permit and does not reference any other conduct of the Minister. Similarly, the concluding paragraph of the Application states: “An urgent interim order is required in order to prohibit moving the Annapolis into Halkett Bay on January 13, 2015 and its sinking on January 17th, 2015 to preserve the status quo and permit this Honourable Court time to hear this Application and rule on whether the [Permit] is compliant with Canadian law and its own terms and conditions” (emphasis added).
[79] The only reference in the Application to any other conduct of the Minister, from which it might be argued that a “course of conduct” broader than the issuance of the Permit was being challenged, is in paragraph 13 of the document, under the heading The Grounds for the Application Are. There, the Society described the requests that it made for a Board of Review to be established, and noted that the Minister had failed to respond to that request and to the request that the Permit be suspended pending such review.
[80] In my view, the contents of paragraph 13 of the Application are not sufficient to transform what is otherwise a challenge that is clearly focused uniquely on the decision to issue the Permit, into a challenge of a broader course of conduct that includes the Minister’s refusals to establish a Board of Review and to suspend the Permit. I would simply observe again in passing that counsel to the Society abandoned in oral argument the issue that it had raised in its written submissions with respect to the Minister’s failure to establish a Board of Review.
[81] It follows from the foregoing that the 30 day limit set forth in subsection 18.1(2) applies and the Society is left in the position of depending on the exercise of this Court’s discretion to grant an extension of that limit.
[82] There are four considerations that guide the Court in determining whether to exercise that discretion. These are whether: (i) the moving party exhibited a continuing intention to pursue the application; (ii) there is merit to the application; (iii) the other parties have suffered prejudice as a result of the delay, and (iv) there is a reasonable explanation for the delay (Canada v Hennelly, [1999] FCJ No 846, at para 3 (FCA); Muckenheim v Canada (Employment Insurance Commission), 2008 FCA 249, at para 8).
[83] In assessing the foregoing considerations, the Court will keep in mind that the 30 day time limit set forth in subsection 18.1(2) “is not whimsical,” but rather “exists in the public interest, in order to bring finality to administrative decisions so as to ensure their effective implementation without delay and to provide security to those who comply with the decision or to enforce compliance with it, often at considerable expense” (Budisukma Puncak Sendirian Berhad v Canada, 2005 FCA 267, at para 60).
[84] On balance, the four considerations listed above, taken together, weigh in favour of declining to exercise discretion to grant an extension to the 30 day limitation period. In brief, the ARSBC has suffered substantial prejudice as a result of the Society’s failure to file this Application within that period, the Society did not provide a reasonable explanation for that delay, and the Society did not exhibit any intention to bring this Application until December 17, 2014, when it made the Minister aware of that possibility.
[85] For the reasons discussed in parts VIII.B and VIII.C of these reasons, I have also dismissed this Application on its merits. However, had the facts been different, and had they clearly demonstrated a real prospect of causing a material risk to human health or the environment, I may well have reached a different conclusion regarding the granting of an extension under subsection 18.1(2), particularly if such harm would extend beyond the interests of the tardy Applicant.
(i) Prejudice [86] With respect to prejudice, I accept the Respondents’ submissions that the Society’s delay in filing this Application until just before the planned sinking of the Annapolis on January 17, 2015 has prejudiced the ARSBC and created a heightened risk that the Annapolis will sink accidentally at an undesirable location, due to the ship’s deteriorated condition. Such an eventuality would create a potentially dangerous hazard and have adverse impacts on numerous third parties (Affidavit of Colin Parkinson, sworn February 6, 2015, at paragraphs 11-12).
[87] The Society was aware, no later than October 9, 2014, that the Permit had been issued as it wrote to the Minister on that date to file a Notice of Objection and to request the convening of a Board of Review in respect of the issuance of the Permit. It can also be taken to have been aware that paragraph 3 of the Permit prohibits the transportation and sinking of the ship between February 1, 2015 and August 14, 2015. It has not claimed that it was unaware that the ARSBC was planning to sink the ship prior to that period.
[88] In fact, the uncontested evidence before the Court is that counsel to the Society (i) attended most of the hearing of the Motion to release the Annapolis from arrest, which took place on November 4, 2014, and (ii) was present when Prothonotary Lafrenière pronounced his Order with reasons, at the end of that hearing. That Order, which was ultimately reduced to a written Endorsement dated November 24, 2014, contemplated that the Annapolis would be moved and sunk within 30 days (Wesley Roots v Artificial Reef Society of British Columbia, (Court Docket T-709-13, November 24, 2014)). However, the ARSBC subsequently filed a Notice of Motion requesting an extension of the Port Graves Bay moorage period until January 31, 2015. By Order dated December 9, 2014, that Motion was granted.
[89] Nevertheless, it was readily apparent to all present in the hearing on November 4, 2015 that the situation had become very urgent. This is clear from the following passage of Prothonotary Lafrenière’s Endorsement:
31. Third, there is urgency to complete the project. The condition of the Annapolis has deteriorated to the point that there is a substantial risk that the ship may develop a leak in one of its through-hull fittings before the summer of 2015 due to its deteriorating condition and corrosion. A failure of one of these fittings would likely cause a flood within various areas of the ship and ultimately result in a total loss. The ship has been substantially stripped and opened up. It is not feasible to repair the Annapolis at this stage or to tow the ship anywhere other than its approved sinking location at Halkett Bay. Releasing the Annapolis from arrest in order that the ship may be sunk in a controlled manner at the approved location appears to be the only realistic alternative to an eventual accidental sinking at an unwanted location. [Emphasis added.]
32. In the end, I conclude that an order releasing the Annapolis from arrest so the ship may be sunk in a controlled manner as an artificial reef is the only realistic alternative to the eventual catastrophe of a through-hull fitting failure, which would work a prejudice to both parties. [Emphasis added.]
[90] Given the urgency described above, the ARSBC retained a significant number of third party services providers immediately upon the release of the Annapolis from arrest, to prepare the ship to be moved and sunk in Halkett Bay. As those parties were in the process of performing their services, the Society filed its Application and then filed the Motion for an interim stay that was granted by Justice Shore. As a result of that stay, the ARSBC had to suspend the work of those third party service providers and has had to seek an amendment to the Permit, to be able to move and sink the ship after February 1, 2015. However, the ship continues to deteriorate and to face an increasing risk of sinking accidentally (Affidavit of Jeffrey Smith, sworn January 9, 2015, at Exhibit D; Affidavit of Howard Robins, at paragraph 50). In part, this is due to the fact that the ship’s through hull fittings continue to corrode and, since the release of the ship from arrest, further holes have been cut inside the vessel and through its hull, to assist the ship to sink rapidly.
[91] In addition to the foregoing, the ARSBC adduced evidence, which was not contested, that the potential cost of dealing with an accidental sinking is between approximately $2.5 to $6 million. The ARSBC’s evidence is also that it holds a marine liability insurance policy for the Annapolis with a maximum benefit of $1 million, and that it has no further assets.
[92] Based on all of the foregoing, I am satisfied that the ARSBC has suffered, and will continue to suffer significant prejudice as a result of the Society’s delay in filing this Application. If the ship accidentally sinks because of the increased risk that has materialized since the expiry of the 30 day limit set forth in subsection 18.1(2) of the Federal Courts Act, above, prejudice also likely will be suffered by third parties, including those who navigate the waters where such accident could occur.
(ii) Intention to pursue the application [93] As previously noted, the evidence before the Court is that the Society did not make known its intention to file an application for judicial review of the Minister’s issuance of the Permit until it communicated that fact in a letter to the Minister dated December 17, 2014 – a date well beyond the 30 day limit set forth in subsection 18.1(2).
[94] I recognize that the Society promptly filed, on October 9, 2014, a Notice of Objection and made a request for the convening of a Board of Review in respect of the issuance of the Permit; and that it repeated the latter request in letters to the Minister dated December 9, 2014 and December 17, 2014.
[95] However, the Board of Review process is not akin to an administrative appeal process or other available remedy which must be exhausted before an application for judicial review may be filed in this Court. The Board of Review process is entirely discretionary. In brief, where a person files a notice of objection, the Minister may establish a Board of Review to inquire into the matter raised by the notice (CEPA, above ss. 333(5)). Upon receipt of the Board’s report, the Minister may take further steps regarding the permit if she considers it advisable to do so (ss. 129(3)).
[96] In summary, there was nothing preventing the Society from filing this Application within the 30 day time limit s