Society promoting environmental conservation v. Canada (Attorney General)

Society promoting environmental conservation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2002-03-05
Neutral citation
2002 FCT 236
File numbers
T-1509-99
Notes
Digest
Decision Content
Date: 20020305
Docket: T-1509-99
Neutral Citation: 2002 FCT 236
BETWEEN:
SOCIETY PROMOTING ENVIRONMENTAL CONSERVATION
on its own behalf and on behalf of its members
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] On the West Coast of Canada, strong objection exists to the presence of nuclear weapons and nuclear powered vessels. As a result, the intended Expropriation of British Columbia sea bed and lands in 1999 for continued use as a test firing torpedo range by the military of Canada and United States raised massive objection by persons and groups for many reasons, including adamant objection by those dedicated to the non-proliferation of nuclear weapons. Nevertheless, the Federal Government went ahead with the Expropriation, which is now under attack in the present application by a lead objector organization.
[2] The application raises fundamental questions about the procedural and substantive requirements provided in the Federal expropriation legislation, which, for the reasons that follow, I find have not been met. In the end result, I find the Expropriation is flawed and cannot stand.
I. Factual Background
[3] The Applicant's uncontested analysis of the factual background provides useful contextual detail to the expropriation of the seabed and lands in question which comprise the Canadian Forces Maritime Experimental Testing Range ("CFMETR") located at Nanoose Bay, British Columbia:
Nanoose Bay and the current test range in the Strait of Georgia has, for a number of years, been used as a site for testing torpedoes and other underwater weaponry and detection devices. The seabed of the bay is shallow and sandy (but not muddy) which allows for the easy retrieval of torpedoes which sink (approximately .6% of those tested). CFMETR is used by Canada and its NATO allies, including the U.S. and U.K. as well as other nations such as Chile.
The Department of National Defence has installed a number of monitors and sensing devices on the seabed for use in the tests conducted at the facility. Under the Constitution Act, 1867 the Province of British Columbia has control and jurisdiction over the seabed of inland seas, including Nanoose Bay and the Strait of Georgia. In 1984 the Supreme Court of Canada held the seabed of the Strait of Georgia belongs to the Province of British Columbia.
The Federal Government established CFMETR in 1965. The Federal Government then sought and received a licence from the Province of British Columbia to continue to operate CFMETR. The terms of the licence were set out in a lease dated September 5,1989, which expired September 5, 1999.
For many years citizens groups, including the Applicant, have expressed serious environmental, public safety, strategic and other concerns relating to the presence of U.S. and U.K. nuclear weapons and nuclear powered vessels at CFMETR and in other Canadian ports generally. In part as a result of public pressure the legislature of British Columbia passed a declaration making British Columbia a nuclear weapons free zone.
On May 23, 1997, as a result of public concern about the presence of nuclear powered and nuclear capable vessels in Canadian waters, the Province of British Columbia exercised its right to cancel the lease. However, the Federal Government challenged the legality of the cancellation in the Federal Court.
In 1999, with the term of the lease about to expire, the Federal and Provincial Governments entered into negotiations towards a new lease. On May 5,1999 these negotiations resulted in an agreement of principles being signed by the senior negotiators for the two Governments, which included provisions for compensation, environmental stewardship and the prohibition of nuclear warheads at CFMETR.
The following day the Federal Government's chief negotiator advised his Provincial counterpart that the nuclear weapons ban was not acceptable to the Federal Government.
According to the Federal Government, the negotiations broke down primarily due to the attempts of the Government of British Columbia to use the threat of non-renewal of the lease as leverage in a dispute with the United States over salmon. The Provincial Government, by contrast, maintains that negotiations broke down when the Federal Government backed out of a commitment in the agreement to prohibit the presence of nuclear warheads within the licence area (Applicant's Memorandum of Fact and Law, pp.1-2, adapted without references).
Whatever the reason, there is no doubt that the breakdown in negotiations received wide public attention.
[4] Shortly after the breakdown, expropriation proceedings were initiated to acquire the CFMETR site by the Minister of Public Works and Government Services Canada (the "Minister") under the Expropriation Act, R.S.C. 1985, c. E-21 (the "Act"). The first step in the process was taken on May 14, 1999, being the registration of a Notice of Intention to Expropriate, which was published in the Canada Gazette on May 22, 1999. As a result, approximately 3,000 objections were filed with the federal Department of Public Works and Government Services.
[5] On July 5, 1999, the Attorney General of Canada appointed the Honourable Michael Goldie (the "Hearing Officer"), a retired Justice of the British Columbia Court of Appeal, to hold hearings and to report to the Minister on the objections. The Expropriation Hearings were conducted from July 19 to 30, 1999, in Nanaimo, and continued from August 3 to 17, 1999, in Vancouver. More than 220 objectors appeared. On September 2, 1999, the Hearing Officer filed his Report with the Minister. After reviewing the Hearing Officer's Report, on September 10, 1999, the Minister confirmed the expropriation of a part of the site in question. The Minister issued a Statement of Reasons on September 13, 1999.
[6] Thus, from start to finish, the whole expropriation process was completed in less than four months. This result has generated three parallel but separate lines of litigation.
[7] The Applicant in the present judicial review is an environmental organization established in 1969 and based in Vancouver, which has since its inception been an active advocate on a wide range of environmental and safety issues. The Applicant has no proprietary interest in the CFMETR site, but as a vocal objector to the Expropriation and active participant in the hearing conducted, is well placed to bring this application and to reflect the views of other similarly interested public interest organizations.
[8] As will be explained in detail below, the attack in the present case on the Expropriation is not by way of a challenge to the exercise of discretion by the Minister to confirm the Expropriation, but is based on an argument that the Hearing Officer failed to meet requirements of the Act. To facilitate this wide ranging challenge in one judicial review, the Applicant obtained a declaration that the various steps taken under the Act constitute a single process culminating in the Expropriation (SPEC v. HMTQ, Federal Court, T-1509-99, Order of Prothonotary John Hargrave dated December 6, 1999).
[9] Although the Province of British Columbia, through its Department of Intergovernmental Relations, made considerable effort to encourage public objection and involvement in the Hearings conducted, it is not a party to the present application. However, the Province of British Columbia has launched a constitutional challenge to the Expropriation in the Supreme Court of British Columbia; and, in addition, the Human Rights Institute of Canada, in conjunction with other individuals and organizations, has brought parallel Federal Court actions challenging the validity of the Expropriation.
[10] With respect to the present application, the provisions of the Act will be analysed in detail below, but as a preliminary point in the analysis it is important to gain an understanding of the pressure imposed on the Hearing Officer by the stringent provisions of the Act.
[11] As a result of being granted a maximum 30-day extension, the Hearing Officer completed the hearings and filed his Report, as required by the Act, within merely 60 days of his appointment. About this statutory requirement and the practical situation in hand, the Hearing Officer made these comments:
The effects of the large number of objections to the intended expropriation permeated the entire process.
...
The time limits in the Expropriation Act (the "Act") governing the hearing and delivery of a hearing officer's Report become progressively more antithetical as the number of objectors increases.
...
As it was evident normal procedures within the time limits of the Act could not provide an adequate response to this problem the first step was to obtain the maximum time permitted under the Act (Respondent's Record, Affidavit of Theresa Johannsen, Addenda to the Report, pp.1, 2 & 4).
It is obvious that the undue pressure placed on the Hearing Officer had a significant impact on the manner in which the hearings were conducted, and the form and content of the Report filed. However, as also explained below, this understandable factor does not rectify what I believe to be a flawed attempt to comply with the Act.
II. The Requirements of the Act
[12] The Act affords the Minister a broad and significant power to acquire property rights without the consent of the owner of those rights (E.C.E. Todd, The Law of Expropriation and Compensation in Canada, 2nd ed. (Toronto: Carswell, 1992) ("Todd"). This extraordinary power is granted in s.4 which reads as follows:
Authority to expropriate
4. (1) Any interest in land, including any of the interests mentioned in section 7, that, in the opinion of the Minister, is required by the Crown for a public work or other public purpose may be expropriated by the Crown in accordance with the provisions of this Part.
Pouvoir d'exproprier
4. (1) La Couronne peut exproprier, en conformité avec les dispositions de la présente partie, tout droit réel immobilier, y compris l'un des droits mentionnés à l'article 7, don't elle a besoin, de l'avis du ministre, pour un ouvrage public ou pour une autre fin d'intérêt public.
The exercise of the power granted is accomplished by meeting the requirements of seven discrete steps to be described. The emphasis placed on the word "shall' in the provisions is important to the analysis below.
A. Public notice of the intended expropriation is to be given
[13] The expropriation process begins when the Minister registers a "Notice of Intention to Expropriate" the land concerned. Section 5(1) governs the content of the notice and reads as follows:
Notice of intention to expropriate
5. (1) Whenever, in the opinion of the Minister, any interest in land is required by the Crown for a public work or other public purpose, the Minister may request the Attorney General of Canada to register a notice of intention to expropriate the interest, signed by the Minister, setting out
(a) a description of the land;
(b) the nature of the interest intended to be expropriated and whether the interest is intended to be subject to any existing interest in the land;
(c) an indication of the public work or other public purpose for which the interest is required; and
(d) a statement that it is intended that the interest be expropriated by the Crown.
Avis d'intention d'exproprier
5. (1) Chaque fois que, de l'avis du ministre, la Couronne a besoin d'un droit réel immobilier pour un ouvrage public ou pour une autre fin d'intérêt public, le ministre peut demander au procureur général du Canada d'enregistrer un avis d'intention d'exproprier ce droit, signé par le ministre, et qui, à la fois:
a) décrit le bien-fonds;
b) précise la nature du droit dont l'expropriation est proposée et détermine si ce droit sera assujetti à un droit préexistant sur le bien-fonds;
c) indique l'ouvrage public ou autre fin d'intérêt public pour lequel ou laquelle ce droit est requis;
d) déclare que la Couronne a l'intention d'exproprier le droit.
[14] Once the Minister decides to register a notice of intention, he or she must comply with the requirements of s.8 of the Act. Section 8 requires publication of the notice as follows:
Sending of copies and publication of notice
8. (1) Where a notice of intention to expropriate an interest in land has been registered, the Minister shall cause a copy of the notice
(a) to be published in at least one issue of a publication, if any, in general circulation within the area in which the land is situated, within thirty days after the registration of the notice, and
(b) to be sent to each of the persons whose names are set out in the report of the Attorney General of Canada referred to in subsection 5(2), as soon as practicable after the registration of the notice, and forthwith after causing a copy thereof to be sent by registered mail to each of the persons referred to in paragraph (b), shall cause the notice to be published in the Canada Gazette.
When notice deemed given
(2) A notice of intention shall be deemed to be given on the day on which it is published in the Canada Gazette under subsection (1), and where any notice so published contains an omission, mis-statement or erroneous description, a corrected notice may be published in the Canada Gazette, which shall be deemed to relate back to the day the original notice was published therein.
Statement re right to object
(3) There shall be included in any notice or copy thereof published or sent as described in subsection (1) a statement of the provisions of section 9 as that section applies to the intended expropriation of the interest to which the notice relates.
R.S., c. 16(1st Supp.), s. 6.
Envoi de copies de l'avis et publication de l'avis
8. (1) Lorsqu'un avis d'intention d'exproprier un droit réel immobilier a été enregistré, le ministre:
a) fait publier une copie de l'avis dans au moins un numéro d'une publication ayant une circulation générale dans la région où se trouve le bien-fonds, s'il existe une telle publication, dans les trente jours qui suivent l'enregistrement de l'avis;
b) fait envoyer une copie de l'avis à chacune des personnes dont les noms sont indiqués dans le rapport du procureur général du Canada mentionné au paragraphe 5(2), aussitôt que possible après l'enregistrement de l'avis.
Immédiatement après en avoir fait envoyer par courrier recommandé une copie à chacune des personnes mentionnées à l'alinéa b), le ministre fait publier cet avis dans la Gazette du Canada.
Quand l'avis est réputé être donné
(2) Un avis d'intention est réputé avoir été donné à la date à laquelle il est publié dans la Gazette du Canada en vertu du paragraphe (1), et lorsqu'il y a dans un avis ainsi publié une omission, un exposé inexact ou une description erronée un avis corrigé avec effet rétroactif à la date de publication du premier avis peut être publié dans la Gazette du Canada.
Énoncé relatif au droit de faire opposition
(3) Tout avis, sous forme d'original ou de copie, publié ou envoyé comme prévu au paragraphe (1) comporte un énoncé des dispositions de l'article 9 dans la mesure où cet article s'applique à l'expropriation envisagée du droit visé par l'avis.
S.R., ch. 16(1er suppl.), art. 6.
[15] As required to be sent by s.8(3), the provisions of s.9 are as follows:
Objections
9. Any person who objects to the intended expropriation of an interest in land to which a notice of intention relates may, within thirty days after the day the notice is given, serve on the Minister an objection in writing stating the name and address of that person and indicating the nature of the objection, the grounds on which the objection is based and the nature of the interest of that person in the matter of the intended expropriation.
R.S., c. 16(1st Supp.), s. 7.
Opposition
9. Toute personne qui s'oppose à l'expropriation envisagée d'un droit réel immobilier visé par un avis d'intention peut, dans un délai de trente jours à compter du jour où l'avis est donné, signifier au ministre une opposition par écrit indiquant ses nom et adresse et indiquant la nature et les motifs de son opposition et son intérêt à s'opposer à l'expropriation envisagée.
S.R., ch. 16(1er suppl.), art. 7.
B. A public hearing is to be held
[16] If an objection is filed, the Minister must order a public hearing. This requirement is outlined in s.10(1) of the Act as follows:
Public hearing
10. (1) Forthwith after the expiration of the period of thirty days referred to in section 9, the Minister shall, if the Minister has been served with an objection under that section, order that a public hearing be conducted with respect to the objection and any other objection to the intended expropriation that has been or may be served on the Minister.
Audience publique
10. (1) Immédiatement après l'expiration du délai de trente jours visé à l'article 9, le ministre ordonne, si une opposition lui a été signifiée en vertu de cet article, qu'une audience publique soit tenue au sujet de cette opposition et de toute autre opposition à l'expropriation envisagée qui lui a été ou peut lui être signifiée.
Pursuant to s.10(2), upon ordering the public hearing, the Minister must immediately ask the Attorney General of Canada to appoint a hearing officer, being someone who is not employed in the Public Service, but is otherwise suitable to hold the position.
C. Notice is to be given of a public hearing
[17] Once appointed, the hearing officer has the responsibility of performing specific procedural requirements. The duties of a hearing officer are outlined in s.10(4), including giving notice, as follows:
Duties of hearing officer
(4) A hearing officer appointed under this section shall
(a) as soon as possible after the appointment of the hearing officer and in any case not later than seven days after the date thereof, fix a suitable time and place for the public hearing and cause notice of the time and place to be given by publishing it in at least one issue of a publication, if any, in general circulation within the area in which the land is situated and by sending it to each of the persons whose names are set out in the report of the Attorney General of Canada referred to in subsection 5(2) and each other person who served an objection on the Minister;
(b) at the time and place fixed for the public hearing, provide an opportunity to be heard to each person appearing thereat who served an objection on the Minister or such of those persons as the hearing officer deems necessary in order to report to the Minister on the nature and grounds of the objections;
(c) make such inspection of the land as the hearing officer deems necessary and receive and consider any written representations filed with the hearing officer before or at the hearing by any person who served an objection on the Minister; and
(d) within thirty days after the appointment of the hearing officer, prepare and submit to the Minister a report in writing on the nature and grounds of the objections made.
Fonctions de l'enquêteur
(4) L'enquêteur nommé en vertu du présent article
a) fixe, dès que possible après sa nomination et en tout cas au plus tard sept jours à compter de la date de celle-ci, les date, heure et lieu convenables pour l'audience publique et fait donner avis de ces date, heure et lieu en le publiant dans au moins un numéro d'une publication ayant une circulation générale dans la région où se trouve le bien-fonds, s'il existe une telle publication, et en envoyant cet avis à chacune des personnes dont les noms sont indiqués dans le rapport du procureur général du Canada mentionné au paragraphe 5(2), et à toute autre personne qui a signifié une opposition au ministre;
b) donne, aux date, heure et lieu fixés pour l'audience publique, l'occasion de se faire entendre à chaque personne y comparaissant qui a signifié une opposition au ministre ou à celles de ces personnes qu'il estime nécessaire d'entendre de manière à faire rapport au ministre sur la nature et les motifs des oppositions;
c) inspecte le bien-fonds comme il le juge nécessaire et reçoit et examine toutes observations écrites qui lui sont soumises avant ou pendant l'audience par toute personne qui a signifié une opposition au ministre;
d) prépare et soumet au ministre, dans les trente jours après sa nomination, un rapport écrit sur la nature et les motifs des oppositions présentées.
D. A hearing is to be conducted
[18] As outlined, s.10(4)(b) is a disjunctive provision which grants the hearing officer discretion to decide to either allow all persons who filed objections to be heard, or only those deemed necessary to convey the nature and grounds of the objections. The hearing officer is afforded further direction and procedural discretion in conducting a hearing by the following provisions:
Idem
10(5) A hearing officer is not required to give any notice, hold any hearing or take any other action required by subsection (4) with respect to any objection served on the Minister under section 9 and may at any time disregard any such objection if it appears to the hearing officer that the objection is frivolous or vexatious or is not made in good faith.
Right to counsel
10(6) Any person who may be heard at a public hearing under this section may be represented by counsel at the hearing.
Conduct of hearing
10(7) A public hearing under this section shall, subject to this section, be conducted in such manner as may be determined by the hearing officer.
Idem
10(5) S'il lui apparaît qu'une opposition signifiée au ministre en vertu de l'article 9 est vexatoire ou peu sérieuse ou qu'elle n'est pas faite de bonne foi, l'enquêteur n'est pas tenu de donner d'avis, de tenir des audiences ni de prendre toute autre mesure requise par le paragraphe (4) en ce qui concerne cette opposition et peut toujours ne tenir aucun compte d'une telle opposition.
Conseiller juridique
10(6) Toute personne qui, en vertu du présent article, peut être entendue à une audience publique, peut s'y faire représenter par un conseiller juridique.
Tenue de l'audience
10(7) Une audience publique en vertu du présent article est tenue, sous réserve des dispositions contraires du présent article, de la manière que peut déterminer l'enquêteur.
E. A report is to be submitted
[19] Pursuant to 10(4)(d), the primary purpose of the public hearing is to allow the hearing officer to gather information about the objections filed, and to report this information to the Minister. The hearing officer is granted discretion in how the report is to be prepared; however, s.10(4)(d) requires that it must be in writing "on the nature and grounds of the objections made". Reference to this minimal standard for the content of the report is also contained in s.10(4)(b).
F. The Minister is to act to rectify failure in the process
[20] Section 10(10) of the Act imposes a duty on the Minister to maintain the hearing and reporting process as follows:
Failure to conduct or report hearing
(10) Where, for any reason, a hearing officer appointed to conduct a public hearing under this section fails to do so or to prepare and submit to the Minister a report as and when required by this section, the Minister shall so notify the Attorney General of Canada who shall immediately appoint another hearing officer for that purpose.
Omission de tenir une audience ou d'en faire rapport
(10) Lorsque, pour une raison quelconque, un enquêteur, nommé en vue de tenir une audience publique en vertu du présent article, omet de le faire ou omet de préparer et de soumettre au ministre un rapport comme il en est requis par le présent article, et dans le délai qui lui est imparti, le ministre notifie le fait au procureur général du Canada qui doit immédiatement nommer un autre enquêteur à cette fin.
G. The Minister is to consider and confirm or abandon the expropriation
[21] Section 11(1) and s.14 outline the final steps to be taken before the authority to expropriate may be exercised as follows:
Confirmation or abandonment of intention
11. (1) Where a notice of intention has been given, the Minister may
(a) confirm the intention, in the manner provided in section 14, (i) if no objection is filed with him under section 9 within the period of thirty days referred to in that section,
(ii) if an objection has been filed with him under section 9 within the period of thirty days referred to in that section, after receiving and considering the report of a hearing officer appointed to conduct a public hearing with respect thereto, or
(iii) whether or not an objection has been filed with him under section 9, if a statement to the effect described in subsection 10(11) has been included in the notice of intention; or
(b) abandon the intention.
Notice of confirmation of intention
14. (1) The Minister may confirm an intention to expropriate an interest in land to which a notice of intention relates, or a more limited interest therein, by requesting the Attorney General of Canada to register a notice of confirmation, signed by the Minister, setting out,
(a) if the interest expropriated is the same as the interest to which the notice of intention relates, a statement that the intention to expropriate that interest is confirmed; or
(b) if the interest expropriated is a more limited interest than the interest to which the notice of intention relates, a statement that the intention to expropriate the interest to which the notice of intention relates is confirmed except as expressly specified in the statement.
Registration of notice
(2) On receiving from the Minister a request to register a notice of confirmation described in this section, the Attorney General of Canada shall cause the notice to be registered in the office of the registrar where the notice of intention was registered, and if the land to which the notice of confirmation relates is more limited in area than the land described in the notice of intention, shall cause a revised plan of the land to which the notice of confirmation relates to be registered therewith.
R.S., c. 16(1st Supp.), s. 12.
Confirmation de l'intention ou renonciation
11. (1) Si un avis d'intention a été donné, le ministre peut:
a) soit confirmer l'intention de la manière prévue à l'article 14 si:
(i) aucune opposition ne lui est faite en vertu de l'article 9 dans le délai de trente jours mentionné dans cet article,
(ii) une opposition lui a été faite en vertu de l'article 9 dans le délai de trente jours mentionné dans cet article, après avoir reçu et examiné le rapport d'un enquêteur nommé pour tenir une audience publique à ce sujet,
(iii) la déclaration prévue au paragraphe 10(11) a été incluse dans l'avis d'intention, qu'une opposition lui ait été faite ou non en vertu de l'article 9;
b) soit renoncer à cette intention.
Avis de confirmation d'intention
14. (1) Le ministre peut confirmer une intention d'exproprier un droit réel immobilier visé par un avis d'intention, ou un droit plus restreint y afférent, en demandant au procureur général du Canada d'enregistrer un avis de confirmation, signé par le ministre, contenant:
a) si le droit exproprié est le même que le droit visé par l'avis d'intention, une déclaration que l'intention d'exproprier ce droit est confirmée;
b) si le droit exproprié est un droit plus restreint que celui visé par l'avis d'intention, une déclaration portant que l'intention d'exproprier le droit visé par l'avis d'intention est confirmée, avec les réserves expressément spécifiées dans la déclaration.
Enregistrement de l'avis
(2) En recevant du ministre une demande d'enregistrer un avis de confirmation mentionné au présent article, le procureur général du Canada fait enregistrer cet avis au bureau du registrateur où l'avis d'intention a été enregistré, et si le bien-fonds visé par l'avis de confirmation est plus restreint en superficie que celui visé dans l'avis d'intention, il fait enregistrer avec l'avis de confirmation un plan révisé du bien-fonds visé par ce dernier avis.
S.R., ch. 16(1er suppl.), art. 12.
III. The Issue
[22] As mentioned above, the attack on the Expropriation is not brought by challenging the actual exercise of the Minister's discretion confirming the Expropriation. Rather, the Applicant attacks the confirmation of the Expropriation by the Minister under s.11(1)(a)(ii) by arguing that certain mandatory procedural and substantive requirements of the Act were not met by the Hearing Officer, and this failure constitutes an error going to the jurisdiction of the Minister to exercise his discretion. I agree with this submission. While s.10(10) creates an obligation on the Minister to act to rectify outright failures in the process, the actual compliance by the Hearing Officer with the detailed requirements of the Act is really what is being judged in the present application.
[23] Therefore, the questions are: did the Hearing Officer correctly interpret the provisions of the Act, and if he did, did he follow them as required?
IV. The Applicant's Procedural Attack
[24] I find that the Hearing Officer acted in literal compliance with the procedural requirements of the Act, with the exception of s.10(4)(a). Thus, the question on the procedural attack is narrowed to: did the Hearing Officer correctly interpret s.10(4)(a), and did he follow it as required?
A. Non-compliance with s.10(4)(a) of the Act?
[25] Under this provision, a hearing officer "shall" do a number of things, including send, within seven days of the hearing officer's appointment to each person who served an objection on the Minister, a notice of the time and place fixed for the public hearing. The Applicant's procedural challenge is with respect to an administrative error that led to the Hearing Officer's failure to serve all objectors with the Notice of Public Hearing in compliance with the seven-day requirement.
[26] The Hearing Officer was appointed on July 5, 1999, and, as required, he set the date, time and place for the hearings and sent out notices within the seven-day deadline, being July 12, 1999. However, by error, some 570 objectors were not sent the Notice by that day. The Hearing Officer and his staff discovered the error and attempted to correct it by, on July 27, 1999 sending those same 570 individuals an Amended Notice of Public Hearing, and by adding two extra hearing dates to the hearing schedule.
[27] It is important to note that, in his opening address at the Nanaimo hearings on July 19, 1999, the Hearing Officer expressed the opinion that the requirements of the Act are mandatory as follows:
Where it is detailed and mandatory in its direction it must be obeyed to the letter and such a direction cannot be varied, ignored or amended other than by another Act of Parliament. Where discretion is to be exercised the power to do so is clearly defined (Respondent's Record, Affidavit of Theresa Johannsen, The Report, Miscellaneous Correspondence and Documents, p.275).
[28] Thus, the Hearing Officer's approach to conducting the Hearing was one of strict compliance. For example, this approach was used as the rationale for refusing objections not sent by registered mail as stipulated in s.3(2) of the Act. In fact, the Hearing Officer's attempt to correct the failure to serve the Notice of Public Hearing was the Hearing Officer's only deviance from the strict construction approach. No rationale is stated for this deviance; it seems to have been simply an attempt to safeguard the integrity of the Expropriation process well underway.
[29] Was the Hearing Officer correct in his opinion that the requirements of the Act are mandatory? Interestingly, the Respondent argues that, regardless of how the Hearing Officer saw it, at least the requirement of Notice under s.10(4)(a) is really not mandatory at all, but merely "directory" in nature.
B. Are the requirements of s.10(4)(a) "mandatory" or "directory"?
1. Mandatory?
[30] Given the constant use of mandatory language as emphasized in the provisions quoted, without some other compelling evidence to the contrary, the general conclusion can be drawn that the requirements are mandatory.
[31] In addition, this conclusion is reinforced by commentators who have addressed the general principles of construction to be applied to expropriation proceedings as follows:
The exercise of the power of expropriation interferes drastically with private property rights and therefore courts generally construe expropriation statutes strictly and in favour of the individual whose rights are affected (Todd, p.26).
The power of expropriation should be exercised in accordance with the procedural requirements of the enabling statute and as a general rule it can be stated that unless the expropriating body complies strictly with procedural requirements it acts without authority ... (Todd, p.29).
Perhaps the most severe interference with property rights is expropriation, where the courts are particularly astute to impose a strict construction (F.A.R. Bennion, Statutory Interpretation, A Code, 3rd ed. (Butterworths: United Kingdom, 1997) at p.653).
[32] Support for the conclusion that the requirements in the Act are mandatory is also found in judicial precedent where it has been determined that: an expropriation of land must conform in substance and procedure with the specific wording and intent of the enabling statute (Minister of Industry and Natural Resources v. MacNeill (1964), 49 D.L.R. (2d) 190 at pp.191-2); and while the Courts generally have demonstrated a significant level of deference to a government authority's actual decision to expropriate, expropriation proceedings may be invalidated when procedural conditions precedent to the exercise of the power to expropriate are not met (Costello et al. v. City of Calgary (1983), 143 D.L.R. (3d) 385 (S.C.C.), and Thorcon Enterprises Ltd. v. West Vancouver (District), [1988] B.C.J. No. 323 (B.C.S.C.).
2. Directory?
[33] Nevertheless, the Respondent submits that the time requirement in s.10(4)(a) must be considered a "directory", as opposed to mandatory, provision. As such, it is argued, technical non-compliance with the provision does not affect the Minister's jurisdiction to confirm the Expropriation.
[34] In support of the argument, the Respondent cites the classic test for determining whether a provision is mandatory or directory as stated in the Montreal Street Railway Co. v. Normandin, [1917] A.C. 170 at page 175 as follows:
When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only ..
[35] The Normandin test has been applied by the Supreme Court of Canada in British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41, where, as here, a finding was required as to whether the word "shall" is mandatory or directory in its effect. Justice Iacobucci at paragraph 148 comments on the fact that the outcome of applying the test depends on the individual circumstances of the situation being judged:
There can be no doubt about the character of the present inquiry. The "mandatory" and "directory" labels themselves offer no magical assistance as one defines the nature of a statutory direction. Rather, the inquiry itself is blatantly result-oriented. In Reference re Manitoba Language Rights, supra, this Court cited R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112 (C.A.), per Russell J., at p. 130, to make the point. It is useful to make it again. Russell J. stated:
I do not profess to be able to draw the distinction between what is directory and what is imperative, and I find that I am not alone in suspecting that, under the authorities, a provision may become directory if it is very desirable that compliance with it should not have been omitted, when that same provision would have been held to be imperative if the necessity had not arisen for the opposite ruling.
The temptation is very great, where the consequences of holding a statute to be imperative are seriously inconvenient, to strain a point in favor of the contention that it is mere directory....
Thus, the manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means. In this sense, to quote again from Reference re Manitoba Language Rights, supra, the principle is "vague and expedient" (p.742). This means that the court which decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed by the usual process of statutory interpretation. But the process perhaps evokes a special concern for "inconvenient" effects, both public and private, which will emanate from the interpretive result.
In the result, the majority found s.268(2) of the Railway Act, R.S.C., 1985, c. R-3, to be directory because of the potential financial hardship private railway companies would suffer through no fault of their own.
[36] Therefore, the outcome of applying the Normandin test depends on how an individual judge, or panel of judges, view the quality of the inconvenience or injustice argued to result from a finding that a specific statutory provision is mandatory. That is, a purely subjective analysis is required and accepted. Not surprisingly, both parties to the present judicial review, when looking at the same situation, make different arguments as to the nature of the inconvenience and injustice of interpreting s.10(4)(a) as mandatory.
[37] The Respondent argues that the requirements of s.10(4)(a) should be interpreted as "directory" because the understandable clerical error made in not serving 570 objectors with Notice was rectified, and, thus, the Expropriation should not be invalidated for such a minor failure in detail. In support of this latter argument, the Respondent makes the following written submissions:
First, it would constitute a serious general inconvenience if a failure to adhere to the technical time limit in s.10(4)(a) could result in the nullification of a federal expropriation. By definition, such expropriations may only be undertaken when an interest in lands "is required by the Crown for a public work or other public purpose." The expropriation at Nanoose Bay was undertaken "for a purpose related to the safety or security of Canada or of a state allied or associated with Canada"; and for "defence purposes". In his Reasons for Confirming the Expropriation, the Minister stated that: "CFMETR is important to Canada's national security, and is integral to Canada's ability to fulfil its alliance commitments. It is essential to our security and defence considerations"....
To nullify an expropriation for technical non-compliance with s.10(4)(a) would frustrate a public purpose and, in this case, risk compromising the integrity of a military facility which is essential to Canada's national security. To do so would not be in the public interest, and indeed may be harmful to the public interest. The following observation of the Federal Court of Appeal, made in the context of injunctions against the Crown, is apposite here:
When a public authority is prevented from exercising its statutory powers, it can be said.... that the public interest, of which that authority is the guardian, suffers irreparable harm.
Canada v. Fishing Vessel Owners' Association of B.C. (1985), 61 N.R. 128 at 130
See also: R. v. F, supra at 360 (risk to general public militating in favour of directory interpretation)
(Respondent's Memorandum of Fact and Law, pp. 30-31, adapted without references).
[38] The Applicant argues that at least some if not all of the 570 objectors were negatively affected by the error, either by being deprived of the right to be heard at the Nanaimo hearings or by having significantly less time to prepare their submissions. The Applicant's primary argument is that s.10(4)(a) is a mandatory provision that must be strictly construed in accordance with specific expropriation jurisprudence.
C. Conclusion
[39] The first question that needs to be answered is: does the Normandin test apply to expropriation proceedings?
[40] In Costello, supra, the Supreme Court of Canada found that the notice provisions contained in the Alberta Expropriation Procedure Act are mandatory, and failure to comply with them invalidated the expropriation there under review. In reaching this decision, Justice McIntyre made an important statement at page 395 about non-compliance with apparently mandatory provisions:
It may be said that the error of the respondent was a small one and that the departure from the statutory provisions regarding service of notice was not, in the circumstances of this case, significant. It may be said that the mailing was required to be made on October 30th or 31st (it was made on November 3rd, only three days late) and that the courts should relieve against such a minor failure. But then the question arises: how far should the courts go in relieving municipalities from following mandatory provisions regarding service where the interest of private citizens is threatened? If an error of three days is forgivable, then what about one or four, or five, or ten days? Surely, the line must be drawn somewhere to give the citizen any protection. In my view, the line should be drawn where the Legislature chose to put it and not where individual judicial discretion may fix it on a case-by-case basis. [Emphasis added]
[41] Justice McIntyre's opinion leads me to conclude that the inherently subjective analysis required in applying the Normandin test has no place in expropriation proceedings.
[42] But, even assuming that the Normandin test does apply to expropriation proceedings, the analysis is a contextual one, where both public and private inconvenience is to be assessed. To have the test apply, three criteria are required to be proved:
1. serious general inconvenience or injustice;
2. suffered by persons who have no control;
and
3. a finding that a provision is mandatory would not promote the main object of the legislation under consideration.
On the facts of the present case, I find that the criteria are not proved.
[43] First, all 570 people affected registered objections to the Expropriation, and it can be safely assumed that they would not agree to any attempt to remedy a failure to follow a mandatory requirement of the Act which would permit the Expropriation to proceed; remedial efforts rather than mandatory requirements would be viewed by them to work to their prejudice.
[44] Under s.10(4)(d), notice was required to be served by July 12, 1999; however, the 570 objectors did not receive notice until two weeks later. Given the tight deadlines contained in the Act, in particular the requirement that a hearing be conducted and a report be filed within a maximum of 60 days, the delay of two weeks can be considered significant. The Applicant submits that it is reasonable to infer that some of the 570 objectors were negatively affected by the loss of time. I agree. In my opinion, the notice error should be regarded as effectively prejudicing the ability of the 570 objectors to exercise the participatory rights afforded to them under the Act.
[45] The Act contains specific and rigid time-lines and there is no evidence to suggest that the use of the word "shall" should be read any other way than to establish mandatory requirements. Withing this set procedural structure, except for special circumstances as stated in s.10(11) of the Act, Parliament clearly intended to promote public participation in expropriation proceedings. The public is to receive notice of the intention to expropriate, any member of the public may serve an objection, the hearing process is triggered by a single objection, and all objectors are to be served with a notice of the public hearing. In my opinion, these participatory rights cannot be compromised once invoked.
[46] Second, with respect to the first two criteria, the test is clearly not designed to give relief to the Government of Canada, which has complete control over the Expropriation through the Attorney General's appointee (the Hearing Officer) and the political decision maker (the Minister).
[47] Third, while the Respondent argues against the obvious "inconvenience" of nullifying the Expropriation, being potentially the waste of time and money to hold another hearing and obtain another report in conformity with the Act, the argument is being made only from the point of view of the party who selected the process to acquire the land in question, and who had effective control over the process. As noted, the Normandin test is not intended to address such an inconvenience.
[48] Fourth, I am not persuaded by the implicit urgency communicated in the Respondent's "safety and security of Canada" argument. If such a condition existed at the time of the breakdown in negotiations with the Province of British Columbia, it was open to the Minister to proceed under s.10(11) of the Act which reads as follows:
Order where possession by Crown urgently required
(11) Where, before a notice of intention is registered, the Governor in Council is of the opinion that the physical possession or use by the Crown of the land to the extent of the interest intended to be expropriated is, by reason of special circumstances, urgently required and that to order that a public hearing be conducted with respect thereto would occasion a delay prejudicial to the public interest, the Governor in Council may direct that no order be made by the Minister under subsection (1) with respect to the intended expropriation and, in which case, a statement to that effect shall be included in the notice of intention.
Décret lorsque la possession par la Couronne est requise d'urgence
(11) Lorsque, avant qu'un avis d'intention ne soit enregistré, le gouverneur en conseil est d'avis que la possession matérielle ou l'usage par la Couronne du bien-fonds dans les limites du droit dont l'expropriation est proposée sont, en raison de circonstances spéciales, requis d'urgence et que le fait d'ordonner la tenue d'une audience publique à ce sujet entraînerait un retard préjudiciable à l'intérêt public, le gouverneur en conseil peut requérir le ministre de ne pas donner l'ordre prévu au paragraphe (1) quant à l'expropriation envisagée et, dans un tel cas, une déclaration à cet effet est incluse dans l'avis d'intention.
[49] The reasons the Expropriation action was taken are provided in the letter of May 14, 1999, sent to the Honourable Glen Clark, Premier of British Columbia, from the Honourable Arthur Eggleton, Minister of Defence which reads as follows:
May 14, 1999
The Honourable Glen Clark, M.L.A.
Premier of British Columbia
Room 166, West Annex
Parliament Buildings
Victoria BC V8V 1X4
Dear Premier:
I am writing to inform you that the Government of Canada has commenced the formal steps to expropriate the seabed at Nanoose Bay so as to preserve for Canada and our allies the Canadian Forces Maritime Experimental and Test Ranges. The continued operation of this important facility without interruption is essential. With the leases expiring on September 4, 1999, we have no option but to proceed with expropriation now. The military installation at Nanoose is a key defence training facility. It is important to the preparations and training of Canadian naval forces.
We have made clear on numerous occasions in the past that the activities which this facility supports are very important to our defence effort and, in the interests of all Canadians, must be preserved. Current events show the importance of Canada's defence capability and I have the greatest difficulty understanding why your government would take action so contrary to the federal government's management of its clear responsibility for national defence.
We are also cognizant of the potential economic impact that closure of this facility would have on the small coastal community of Nanoose Bay. The sixty jobs, and between $6,000,000 and $8,000,000 worth of economic activity annually in the region associated with this facility are important to the economic health of this community.
Expropriation was not our preferred way of resolving this disagreement with your government. We made clear for many months that we were prepared to negotiate on Nanoose. Some weeks ago, you agreed our officials could meet and we entered into discussions in good faith.
As you know, our officials initialled the principles of an agreement last week, whereby the federal government would have paid a very great deal more to British Columbia, every year for 30 years, than the seabed is actually worth. In order to have an agreement rather than be forced to expropriate, we were prepared to make very generous payments.
You decided that you could not approve the principles of agreement negotiators were recommending to both governments because you insisted on the resolution of an unrelated issue with respect to the fishery.
The position of the federal government was made very clear: the resolution of Nanoose cannot be made subject to other issues unrelated to National Defence. However, even so you were offered a meeting at your convenience with the Prime Minister after the signature of an accord on Nanoose to discuss on its own merits any other issues which you might want to raise. You rejected this. We believe that the Government of Canada went more than the extra mile to achieve a good agreement on Nanoose and to assure you that any other issues of importance to your government would be raised and discussed with the Prim