Date:
20061214
Docket:
T-1658-06
Citation:
2006 FC 1491
[ENGLISH TRANSLATION]
BETWEEN:
FRANÇOIS
DERASPE
Applicant
and
THE
MINISTER OF ENVIRONMENT CANADA
Respondent
REASONS
FOR ORDER
Introduction
[1]
This
is a motion by the respondent [the Minister] to strike the applicant’s
application for judicial review [the application].
[2]
Alternatively,
in the event that the Court refuses to strike the application, the Minister
requests that the Court, under Rule 59(c) of the Federal Courts Rules [the
Rules]:
a. Declare the service
and filing of the applicant’s affidavit and record null and void given that i)
the affidavit and its supporting evidence are irregular and were never properly
served on the Minister and ii) the applicant’s record allegedly violated the
rules in several respects;
b. Order the applicant to
serve and file his affidavit and exhibits in accordance with the rules within
thirty (30) days of the order to be made on this motion;
c. Order that the time
limits set out in the rules commence as soon as the applicant’s affidavit is
filed.
[3]
I
believe, given the context and the analysis that follow, that this motion to
strike should be allowed. In general, it appears that the applicant, via his
application, is anticipating a future decision by the Minister, under steps
provided for by the Access to Information Act, R.S.C. 1985, c. A-1, is
attempting to impose on the Minister obligations that do not arise from the
scheme of the Canadian Environmental Protection Act (1999), S.C. (1999),
c. 33 (the CEPA) and, finally, is seeking to assert himself and interfere with
an ongoing investigation that is to be completed following a request for
investigation by the applicant under the CEPA. The request for investigation
was made by the applicant because he apparently disagrees with the findings of
an inspection report issued by the Minister after a third party released a
certain amount of sulfur trioxide into the atmosphere.
Background
[4]
On
August 9, 2004, the company Zinc Electrolytique du Canada Ltée (hereinafter
CEZ), which operates a zinc refinery and sulfuric acid production plant Salaberry-de-Valleyfield,
released a certain amount of sulfur trioxide.
[5]
This
industrial waste resulted in an inspection by the Minister in the days following
and an inspection report dated August 24, 2004 (Minister’s inspection
report), which essentially found that the incident in question did not
constitute an environmental emergency because the concentrations of sulfur
trioxide and dioxide released into the atmosphere were reportedly below 10%.
[6]
It
must also be concluded that this inspection report by the Minister found that
the incident the occurred on August 9, 2004, did not contravene the CEPA.
[7]
Previously,
on August 10, 2004, the Salaberry-de-Valleyfield fire department issued an
intervention report. This intervention report by the town where the release of
sulfur allegedly occurred apparently contained more unfavourable findings than did
the Minister’s inspection report with respect to the concentrations of sulfur
released on August 9, 2004. Furthermore, the Minister allegedly notified the
applicant belatedly and, therefore, contrary to the Minister’s statutory
obligations under the Access to Information Act, above.
[8]
In
June 2006, the applicant filed a request for an investigation to the Minister
under section 17 of the CEPA.
[9]
On
June 27, 2006, a director serving the Minister acknowledged receipt of
this request for an investigation for and on behalf of the Minister in
accordance with section 18 of the CEPA.
[10]
On
July 26, 2006, the applicant was informed that an investigation had been
initiated under section 17 of the CEPA following his request for an
investigation.
[11]
On
August 30, 2006, the Minister sent the applicant, under section 19 of the CEPA,
a letter outlining the progress of the investigation initiated following the
applicant’s request on June 2006.
[12]
On
September 13, 2006, the applicant filed his application with this Court’s
registry.
[13]
For
the purposes of understanding, sections 17 to 19 of the CEPA read as follows:
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Investigation
of Offences
17. (1) An individual who is resident in Canada and at least 18 years
of age may apply to the Minister for an investigation of any offence under
this Act that the individual alleges has occurred.
18. The Minister shall acknowledge receipt of the application within
20 days of the receipt and shall investigate all matters that the Minister
considers necessary to determine the facts relating to the alleged offence.
19. After acknowledging receipt of the application, the Minister
shall report to the applicant every 90 days on the progress of the
investigation and the action, if any, that the Minister has taken or proposes
to take, and the Minister shall include in the report an estimate of the time
required to complete the investigation or to implement the action, but a
report is not required if the investigation is discontinued before the end of
the 90 days.
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Enquêtes
sur les infractions
17. (1) Tout particulier âgé d’au moins dix-huit ans et résidant au
Canada peut demander au ministre l’ouverture d’une enquête relative à une
infraction prévue par la présente loi qui, selon lui, a été commise.
18. Le ministre accuse réception de la demande dans les vingt jours
de sa réception et fait enquête sur tous les points qu’il juge indispensables
pour établir les faits afférents à l’infraction reprochée.
19. À intervalles de quatre-vingt-dix jours à partir du moment où il
accuse réception de la demande jusqu’à l’interruption de l’enquête, le
ministre informe l’auteur de la demande du déroulement de l’enquête et des mesures
qu’il a prises ou entend prendre. Il indique le temps qu’il faudra, à son
avis, pour compléter l’enquête ou prendre les mesures en cause selon le cas.
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Analysis
[14]
When
the remedies sought are clearly certain to fail, an application for judicial
review, such as the application in this case, may be the subject of an
application to strike (see David Bull Laboratories (Canada) Inc. v.
Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54–55).
[15]
As
noted before, I believe that a review of the findings or remedies sought by the
applicant in his application clearly leads us to this conclusion.
[16]
The
remedies sought by the applicant are below (to facilitate the subsequent
analysis, the Court itself numbered these remedies 1) to 6):
[translation]
1. PROHIBIT the Minister
of Environment Canada from making any decision that his failure to act is due
to the fact that he was not put in possession of the document entitled Rapport
d’intervention détaillé du service de sécurité incendie de
Salaberry-de-Valleyfield until April 1, 2005, since such a premise is
vitiated by fraud under paragraph 18.1(3)(b) of the Federal Courts Act;
2. ORDER the Minister of
Environment Canada, under section 39 of the CEPA, to disclose to the Court why he
concealed the Rapport d’intervention détaillé du service de sécurité
incendie de Salaberry-de-Valleyfield completed by the Valleyfield fire
department on August 10, 2005;
3. ORDER the Minister of
the Environment to send the applicant, from the date of the judgment to be
rendered herein until the end of the investigation, a detailed weekly progress
report on the progress of the investigation and to implement the findings that
the applicant’s experts may reach if they consider that certain elements of the
investigator’s process are unlikely to guarantee scientifically sound results;
4. ORDER the Minister of
the Environment to disclose the investigator’s protocol, the name of the person
in charge of the investigation, as well as the names of the experts or analysts
that the investigator used or plans to use, as well as their qualifications;
5. ORDER the Minister of
Environment to allow the applicant’s experts and those of any other interested
party to be physically present during various stages of the investigation;
6. ORDER the provisional
execution of the judgment to be rendered, notwithstanding appeal and without
guarantee.
[17]
With
respect to the first remedy, it squarely deals with a hypothetical situation.
The Minister has not yet released his investigation report. Furthermore, if the
Minister is slow to take action or if the Minister’s eventual position is
unfavourable to the applicant, he will still be able to appeal the action
provided for under section 22 of the CEPA, which states the following:
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22.
(1) An individual who has applied for an investigation may bring an
environmental protection action if
(a)
the Minister failed to conduct an investigation and report within a
reasonable time; or
(b)
the Minister’s response to the investigation was unreasonable.
(2) The
action may be brought in any court of competent jurisdiction against a person
who committed an offence under this Act that
(a)
was alleged in the application for the investigation; and
(b)
caused significant harm to the environment.
(3)
In the action, the individual may claim any or all of the following:
(a)
a declaratory order;
(b)
an order, including an interlocutory order, requiring the defendant to
refrain from doing anything that, in the opinion of the court, may constitute
an offence under this Act;
(c)
an order, including an interlocutory order, requiring the defendant to do
anything that, in the opinion of the court, may prevent the continuation of
an offence under this Act;
(d)
an order to the parties to negotiate a plan to correct or mitigate the harm
to the environment or to human, animal or plant life or health, and to report
to the court on the negotiations within a time set by the court; and
(e)
any other appropriate relief, including the costs of the action, but not
including damages.
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22.
(1) Le particulier qui a demandé une enquête peut intenter une action en
protection de l’environnement dans les cas suivants :
a)
le ministre n’a pas procédé à l’enquête ni établi son rapport dans un délai
raisonnable;
b)
les mesures que le ministre entend prendre à la suite de l’enquête ne sont pas
raisonnables.
(2)
L’action en protection de l’environnement peut être intentée devant tout
tribunal compétent contre la personne qui, selon la demande, aurait commis
une infraction prévue à la présente loi, si cette infraction a causé une
atteinte importante à l’environnement.
(3)
Dans le cadre de son action, le particulier peut demander :
a)
un jugement déclaratoire;
b)
une ordonnance — y compris une ordonnance provisoire — enjoignant au
défendeur de ne pas faire un acte qui, selon le tribunal, pourrait constituer
une infraction prévue à la présente loi;
c)
une ordonnance — y compris une ordonnance provisoire — enjoignant au
défendeur de faire un acte qui, selon le tribunal, pourrait empêcher la
continuation de l’infraction;
d)
une ordonnance enjoignant aux parties de négocier un plan de mesures
correctives visant à remédier à l’atteinte à l’environnement, à la vie
humaine, animale ou végétale ou à la santé, ou à atténuer l’atteinte, et de
faire rapport au tribunal sur l’état des négociations dans le délai fixé par
celui-ci;
e) toute autre mesure de redressement indiquée — notamment
le paiement des frais de justice — autre que l’attribution de
dommages-intérêts.
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[18]
In
this sense, for the moment it must be considered that this first remedy is
clearly certain to fail.
[19]
With
respect to the second remedy, it seeks to revisit a finding that the applicant
make access requests under the Access to Information Act, above.
[20]
If
the applicant thought that the Minister had concealed a document from him under
this act, namely the town’s inspection report, it is pursuant to the Access
to Information Act that he was required to act.
[21]
In
any event, the order sought under the second remedy cannot be made under
section 39 of the CEPA because this provision provides a remedy to prevent
conduct that contravenes the CEPA and is likely to cause damage. Section 39
reads as follows:
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39. Any person who suffers, or is about to suffer, loss or damage as
a result of conduct that contravenes any provision of this Act or the
regulations may seek an injunction from a court of competent jurisdiction
ordering the person engaging in the conduct
(a) to refrain from doing
anything that it appears to the court causes or will cause the loss or
damage; or
(b) to do anything that it
appears to the court prevents or will prevent the loss or damage.
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39. Quiconque a subi ou est sur le point de subir un préjudice ou une
perte par suite d’un comportement allant à l’encontre d’une disposition de la
présente loi ou de ses règlements peut solliciter du tribunal compétent une
injonction visant à faire cesser ou à empêcher tout fait pouvant lui causer
le préjudice ou la perte.
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[22]
The
order sought by the applicant is not intended to cease or prevent conduct
contravening the CEPA that is likely to cause damage.
[23]
This
second remedy must also be seen as clearly certain to fail.
[24]
With
respect to the third remedy, it must be analyzed in two stages.
[25]
The
first part states that the Minister be ordered to send the applicant, starting
from the date of the judgment on the merits until the completion of the
Minister’s investigation, a “detailed progress report” on the progress of the
investigation.
[26]
This
part of the remedy refers, in theory, to the application of section 19 of the
CEPA, the wording of which is reproduced above, at paragraph [13].
[27]
At
paragraph 33 of his written submissions submitted against the motion to strike
under review, the applicant states that he asked the Minister to inform him of
the investigation protocol and to notify him of the names and qualifications of
the Minister’s investigators.
[28]
I
do not consider that the scheme of section 19 of the CEPA, which simply
requires that the Minister, at intervals of ninety (90) days, notify the
applicant of the progress of the investigation and the measures that he has
taken or intends to take, requires that the Minister provide the applicant with
the desired information, especially at the frequency required by the applicant.
[29]
I
do not think that the general provisions set out in section 2 of the CEPA, and
which are quoted as follows by the applicant, are such as to require the
Minister to provide the applicant with the desired information under section 19
of the CEPA:
2.(1) In the administration of this Act, the
Government
of Canada shall, having regard to the Constitution
and
laws of Canada and subject to subsection (1.1):
a)exercise its powers in a manner
that protects the environment and human health, applies the precautionary
principle that, where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation, and promotes and
reinforces enforceable pollution prevention approaches;
[…]
e)encourage the participation of
the people of Canada in
the making of decisions that affect the environment;
[…]
o)
apply
and enforce this Act in a fair, predictable and consistent manner;
(Emphasis added by applicant).
[30]
Therefore,
this first part of the third remedy is clearly certain to fail.
[31]
Furthermore,
the second part of this third remedy, as well as the fourth and fifth remedies
of the application, lead the applicant to interfere with the Minister’s
investigation and place his point of view on it and his investigative
procedures. The applicant wishes to force the Minister to accept the participation
of his experts in the investigation and to compel the Minister to address the
findings of his experts. He wants to force the Minister to disclose his
investigative process, as well as the names of his investigators and analysts.
[32]
As
the Minister stated in his written submissions:
[translation]
42. The applicant is
essentially seeking to interfere with and control the investigation process
provided for under the CEPA.
43. It is clear
that the applicant has no right for the Court to make the orders that he is
seeking in this respect.
44. There is no
provision in the CEPA that allows such intrusions of an individual into an
investigation being conducted under the CEPA. There is no provision requiring
the respondent [the Minister] to comply with the applicant’s requests. On the
contrary, the respondent is the person authorized to conduct investigations
under the CEPA 1999 and clearly has the discretion to lead his investigation as
he deems appropriate. It is to him, not the applicant, that Parliament as
entrusted the task of carrying out investigations under the CEPA.
[…]
46. Furthermore,
whether it is a matter of administrative12 or ciminal13 investigations, the
courts have always recognized that a person authorized to conduct an
investigation has the power to control the investigation and holds the
discretion to lead it as intended, subject to legislative provisions governing
that procedure and the rules of natural justice applicable in certain very specific
situations for the benefit of the individuals who are affected by the investigation.
The investigators are therefore immune from the intervention of individuals who
would like to dictate the procedure or interfere in any way in the
investigation.
12 Guay
v. Lafleur,
[1965] S.C.R. 12; Irvine v. Canada (Restrictive Trade Practices Commission),
[1987] 1 S.C.R. 181; Terminaux portuaires du Québec Inc. v. CUPE, [1992]
F.C.A. No. 327; Berthiaume v. M.N.R., [1998] A.C.I. No. 1067
13 Jane
Doe v. Toronto (Metropolitan) Commissioners of Police
[1989] O.J. No. 471; (Québec Comité de déontologie policière) v. Paradis,
[2000] J.Q. No. 5671; M.L. v. Monty, [2005] J.Q. No. 8289
[33]
For
these reaons, it is therefore clear to me that the second part of the third remedy,
as well as the fourth and fifth remedies sought by the applicant, are unfounded
in law and certain to fail.
[34]
Accordingly,
for all the foregoing reasons, I find on the basis of Pharmacia, above,
that the Minister’s motion to strike should be allowed with costs, and the
application for judicial review filed by the applicant on September 13, 2006,
will therefore be struck.
[35]
In
light of this finding, it is not necessary for me to decide the Minister’s
other subsidiary grounds, which arise from the procedural and administrative imbroglio
that apparently surrounds the applicant’s filing of the affidavit on the
merits.
“Richard Morneau”
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