Canadian Arctic Resources Committee Inc. v. Diavik Diamond Mines Inc., docket T-2127-99

Date: 20000606

Docket: T-2127-99

BETWEEN:

     CANADIAN ARCTIC RESOURCES COMMITTEE INC.,

     Applicant,

     - and -

     DIAVIK DIAMOND MINES INC., and

     ABER DIAMONDS MINES LTD.,

     Respondents,

     - and -

     ATTORNEY GENERAL OF CANADA,

     Intervenor.

     REASONS FOR ORDER

MR. JOHN A. HARGRAVE,

PROTHONOTARY

[1]      This proceeding arises out of a proposal for open pit mining of diamonds at Lac de Gras, some 300 kilometres north east of Yellowknife in the Northwest Territories. This open pit mining is to be accomplished by dyking and draining portions of the lake. The project is ambitious. The scale is large. The Applicant is appropriately concerned that the environmental issues, including effects on water and air quality, water quantity, aquatic and terrestrial habitat and fish and wildlife be properly assessed under the Canadian Environmental Assessment Act (the "Act"). To this end the Applicant has applied for judicial review of a decision made by the Minister of Environment under section 23 of the Act , together with the review of decisions purported to have been made, or perhaps which might be made in the future, by various other federal ministers.

[2]      The reasons arise out of a Rule 317 request not only for the material upon which the Minister of Environment made his decision, but also for any material in the possession of the Minister of Indian Affairs and Northern Development, the Minister of Fisheries and Oceans and the Minister of Natural Resources, who acted as responsible authorities under the Act and in doing so provided a comprehensive study and report from which the Minister of Environment could make his decision. The Applicant also challenges a claim of immunity from production of certain documents certified by the clerk of the Privy Council under section 39 of the Canada Evidence Act as cabinet confidences. The Respondents wish to get on with their project, which will be hurt by delay. They and particularly the Attorney General for Canada, as Intervenor, mounted spirited opposition to the motion.

[3]      I denied the Applicant"s motion at the conclusion of the hearing. In these promised reasons I will touch upon further pertinent facts where necessary.

ANALYSIS

The Environmental Review Process

[4]      Without going into great detail, when under the Act there must be a regulatory decision on a project which may have an environmental impact, that decision falls to the Minister of Environment under section 23 of the Act. Obviously the Minister does not personally have the knowledge and facts necessary to make such a decision, but rather must rely upon assistance from and recommendations set out in a Comprehensive Study Report prepared under section 21 of the Act. This Report is prepared by a Federal authority or authorities, which are referred to in the Act as Responsible Authorities.

[5]      The Act sets out a procedure whereby the Comprehensive Study Report prepared by, in this instance four, responsible authorities, the Federal Departments of Indian Affairs and Northern Development, Fisheries and Oceans and Natural Resources, together with the Northwest Territories Water Board, is made available to the public for comment. Section 22 of the Act provides for the airing of public concerns about the Comprehensive Study Report. In this connection, section 55 of the Act sets up a public registry through which interested members of the public may have access to virtually all of the records produced, collected or submitted respecting the assessment of the project.

[6]      Once the Comprehensive Study Report has been prepared and commented upon through the public consultation process, which in the present instance appears to have been of substantial length (in excess of 18 months) and thoroughness and in which the Applicant participated fully, the Comprehensive Study Report and public comments go to the Minister of Environment for a decision. The Minister, in making a decision, has options under section 23 of the Act, being either to refer the project back to the Responsible Authority for action by the Authority in effect then resulting in a decision or decisions by the Responsible Authority, including the implementation of any necessary programs, or a reference of the project to a mediator or to a review panel.

[7]      In the present instance, the Minister has made a final decision under section 23 of the Act, referring the project back to the Responsible Authorities for action. As of the date of the hearing of the present motion, none of the responsible Authorities have made any decisions under section 37 of the Act.

[8]      At present there exists a decision of the Minister which may be reviewed. The Applicant submits the decision of the Minister violates the Act. However, in addition the Applicant submits that the assessment of the project by the three Ministerial Responsible Authorities also violates the Act. Here I would again emphasize that there have, as yet, been no decisions by the Responsible Authorities, but merely the preparation of the Comprehensive Study Report, in effect a report to assist and to guide the Minister in making the existing final decision. This leads to the Applicant"s request for production of further documents pursuant to Rule 317.

[9]      Rule 317 provides a means for an applicant for judicial review to obtain material in the possession of the tribunal making the decision under review. The material must be relevant and not already in the position of the applicant. The rule is as follows:

317.(1) Material from tribunal " A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.

[10]      In this instance the Applicant has received the Rule 317 material from the Minister of Environment, but has also filed a request for similar material from each of the Responsible Authorities on the basis that production under Rule 317 extends to each of the Responsible Authorities.

[11]      The Applicant"s argument as to production of documents under Rule 317 is broken down into three topics. First, the Applicant submits that the public registry, constituted under section 55 of the Act , is incomplete and that an applicant may, in effect, complete inspection of documents by an application under Rule 317. Second, the refusal by the Crown to produce documents in the possession of the Minister"s whose departments acted as Responsible Authorities violates Rule 317 because in the view of the Applicant there must be production of all material in the position of each decision maker including the Responsible Authorities. Third, the Applicant submits that the Crown has also violated the Rule 317 production of documents procedure as it must produce all the relevant material, even if that material was not considered by the decision maker, or if the decision maker overlooked material or some factor to which the material relates. I will now consider each of these in turn.

Completeness of the Public Registry

[12]      Section 55(3) requires that the public registry contain all the material produced, collected or submitted with respect to the assessment. This broad production of documents is, however, limited by section 55(4) of the Act to documents which have already been made available to the public and to documents which would be disclosed pursuant to a request under the Access to Information Act. Excluded from the public registry are certain privileged third party documents.

[13]      The Applicant"s case here rests on a presumption that there are documents in addition to those contained in the 42 volume public registry. Yet, even though the Applicant participated in the 18 months long public scrutiny of the project leading to the Comprehensive Study Report, the Applicant is not able to specifically name any material which is not in the public registry. The Applicant, instead, offers a presumption that the public registry is incomplete because some correspondence and a copy of the Minister"s decision are not in the public registry. For example, the Applicant points to several letters which are not in the registry: those letters are subject to an objection and a certification by the clerk of the Queen" Privy Council. This certainly does not lead to a presumption of missing documents.

[14]      The Applicant notes as missing from the public registry some comments that were made by the Canadian Environmental Assessment Agency, to the Responsible Authorities, on drafts of the Comprehensive Study Report, material which is irrelevant: here I would refer to Canada (A.G.) v. Commission of Inquiry on the Blood System (1996), 37 Admin L.R. 241 at 257 (F.C.T.D.). Also missing from the public registry is a briefing note sent by the Canadian Environmental Assessment Agency to the Minister, which again is a document certified by the clerk of the Privy Council as a confidence under section 39 of the Canada Evidence Act.

[15]      Leaving aside whether an applicant may in an appropriate instance seek to complete the public registry through materials obtained under Federal Court Rule 317, the present Applicant has not convinced me that there is relevant material missing from the public registry. I now turn to the argument that the government must produce material in the possession of the Responsible Authorities.

Production of Material held by Responsible Authorities

[16]      Rule 317, which is set out above, provides that a party may request relevant material "... that is in the possession of the tribunal whose order is the subject of the application...". The Applicant seeks all additional material in the possession of the federal Ministers of Indian Affairs and Northern Development, Fisheries and Oceans and Natural Resources, whom the Applicant considers to be tribunals. Certainly these three Responsible Authorities could, in appropriate circumstances, be tribunals. The Applicant"s difficulty here is that while these three Ministers, under various legislation, may issue authorizations, approvals and licences, by which the decision of the Minister of Environment may be carried out, none of the Responsible Authorities have in fact made any decisions, but rather have only reported to the Minister of Environment by means of the Comprehensive Study Report.

[17]      The Applicant"s case, for this extended production of documents, rests on Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) (1998), 130 F.T.R. 223 (F.C.T.D.) and upon two related decisions reported (1998), 130 F.T.R. 206 and (1998), 150 F.T.R. 161, the latter being reversed, in part, on other grounds (2000) 248 N.R. 25 (F.C.A.). I shall collectively refer to these decisions as "Friends of the West Country".

[18]      In Friends of the West Country the Court granted disclosure of documents against respondents who were regulators and who conducted an environmental assessment under the Act. The Intervenor submits that Friends of the West Country may be distinguished from the present case in that it not only involved different provisions of the Act and quite different facts, but also, Friends of the West Country constitutes a single exception to the established line of cases, an exception which is applicable only to specific circumstances. Friends of the West Country has not been followed. It runs contrary to other decisions dealing with the present issue: this is a point made by Mr. Justice Pelletier in Hiebert v. Canada (Correctional Service), an unreported 15 Decmeber 1999 decision in file T-559-98. In Hiebert, at paragraphs 8 and 9, the judge notes that it was the supervisory function of the respondents, without distinct investigation and decision stages that, in Friends of the West Country, permitted a departure from the law set out in Canada (Human Rights Commission) v. Pathak [1995] 2 F.C. 455 (C.A.). Mr. Justice Pelletier, in Hiebert, went on to refer to Mr. Justice Nadon"s analysis of the area in 1185740 Ontario Ltd. v. Minister of National Revenue (1998), 150 F.T.R. 60, which concluded that only documents before the decision-maker were subject to production, a position consistent with Pathak. Mr. Justice Nadon"s analysis was subsequently approved by the Federal Court of Appeal in 1185740 Ontario Ltd. v. Minister of National Revenue (2000), 247 N.R. 287 the Court of Appeal there referring to Pathak. In the result, in Hiebert, Mr. Justice Pelletier declined to follow Friends of the West Country.

[19]      I touched upon the fact that Friends of the West Country involved a different section of the Act, specifically section 20(1), there being a challenge of the decision of a responsible authority following the section 20(1) screening. The screening process is informal and less rigorous than the comprehensive study report process at issue in the present action. The screening process allows a responsible authority either to conduct or to delegate the screening process and then to make the decision following the screening. This differs from the present comprehensive study process which requires first that a responsible authority conduct a study following which the Comprehensive Study Report is submitted to the Minister of the Environment for a decision.

[20]      In Friends of the West Country v. Minister of Fisheries and Oceans (1998), 130 F.T.R. 206 at page 215, the motions judge found a way to distinguish the law set out by the Court of Appeal in Pathak in order to broaden document production. He did so on the basis that section 20(1) provided no distinct investigation and decision making stage, with the Minister, or another responsible authority, merely taking a supervisory role over the investigation:

... by virtue of s. 17(2) of the CEAA (recited above) which states that no action under s. 20(1) can be taken unless the responsible authority is satisfied that the delegated duty has been carried out in accordance with the CEAA. There is no distinct investigation and decision-making stage, because s. 17(2) of the CEAA mandates that the Minister (or other responsible authority) takes a supervisory role over the investigation, and not merely that of a passive recipient.

This is at the crux of distinguishing the present case from Friends of the West Country. Friends of the West Country was based on section 17(2) of the Act, a section which affects only delegated actions of responsible authorities to specifically name delegates and a situation where the eventual decision is made by those same responsible authorities under subsections 20(1) or 37(1). This section 17 delegation by a responsible authority must be to a delegate designated in section 12(5) of the Act, before section 17(2) of the Act becomes relevant. The delegates under section 12(5) are provincial bodies, a body established pursuant to a land claims agreement referred to in section 35 of the Constitution Act of 1982 and a governing body established pursuant to legislation relating to self-government of Indians. None of this has any application in the present instance. Moreover, in the present instance the decision which brings about this judicial review was made by the Minister of Environment under section 23 of the Act, not by Responsible Authorities under section 17(1) or 20(1). Again I would point out the contrast, for in Friends of the West Country the Minister of Environment was not involved in the screening process. Instead, in Friends of the West Country the screening and subsequent decisions were made by the same responsible authorities. This is a very different situation from the present procedure, a Comprehensive Study Report by the Responsible Authorities, leading to the Minister"s decision under section 23 of the Act . This is worth repeating from a slightly different perspective.

[21]      In the present situation, the stages of investigating and of decision-making were distinct and separate. There was not an assessment by way of screening, but by way of a Comprehensive Study Report. Section 20(1) of the Act requires that a Responsible Authority must insure that a Comprehensive Study is performed and that the Minister receives that Report, after which the Minister of Environment makes the decision under section 23 of the Act. The Minister of Environment and the Responsible Authority are different bodies with distinct and different functions. There is no delegation of the assessment by the Minister to the Responsible Authority: the Minister of Environment does not supervise the process in a manner analogous to the supervision by a Responsible Authority of a lower body conducting a screening. Section 17(2), upon which Friends of the West Country was based, has no application to the present decision by the Minister of Environment under section 23 of the Act.

[22]      On the basis of this analysis, an analysis largely presented by counsel for the Intervenor, I reject the concept that Friends of the West Country applies in the present instance.

Material Not Before the Minister

[23]      The Applicant submits that the material required to be produced under Rule 317 goes beyond that actually before the decision-maker, being bounded only by relevance to the applicant and possession by the decision-maker, in a broad sense of constructive possession, even where such material is not considered by the decision maker. In the view of the Applicant this extended production of documents is particularly relevant where, as here, the decision-maker is said to have failed to consider all of the relevant factors. Here the Applicant relies upon various of the Friends of the West Country decisions which allowed extended production of all documents bearing on the issue, even where the decision-maker had not considered a document which was merely in the hands of the Minister"s department, not before the Minister.

[24]      As I have already pointed out, Friends of the West Country involved a responsible authority that both investigated (or delegated an investigation) and made a decision, rather than the procedure of responsible authorities investigating and holding hearings and then producing a report on which the Minister would rely in making the decision. To allow a complete reopening of the investigation done by the Responsible Authorities would mock the carefully delineated procedure and would, in essence, require the Minister to work through 18 months of transcripts and 42 volumes of documents before making any decision. It would then require the Court reviewing the Minister"s decision to go beyond mere review of the decision and to test for any poor science or poor logic which might have crept into the Comprehensive Study Report: judicial review is not the forum for such a debate. However, there is also legal authority on this aspect.

[25]      In Pathak v. Canadian Human Rights Commission (1993), 63 F.T.R. 301 the motions judge had held that documents before an investigator were, in effect, also before the Commission itself on the basis that the investigator acted as an extension of the commission. The motions judge felt on solid ground for Mr. Justice Sopinka, who gave the majority decision in Syndicat des employés de production du Quebec et de l"Acadie v. Canada [1989] 2 S.C.R. 879, wrote at page 898 to the effect that an investigator, in that instance, performed the investigation and prepared a report as an extension of the Commission. On this basis the motions judge in Pathak was able to hold that the documents which had been before the investigator were, in effect, before the commission itself.

[26]      The Court of Appeal in Pathak v. Canadian Human Rights Commission (1995) 180 N.R. 152, felt that the motions judge had misconstrued this passage from the Supreme Court decision. The Federal Court of Appeal in Pathak noted, at page 156:

But that is not my view to say that for all purposes the persons of the investigator and the Commission are to be merged. All the documents were in the Commission"s custody and of easy access but it could not be said that they were actually before the Commission when it made its decision. To hold otherwise would be to create a limitless legal fiction merging the mostly separate identities of the investigator and the Commission.

The Court of Appeal in Pathak referred to portions of the Canadian Human Rights Act requiring the Commission to decide an issue on the basis of an investigator"s report and representations of the parties. The Court pointed out that any other materials referred to by the Commission were discretionary and, if not called for by the Commission, did not form a part of the material before the Commission and need not be produced under Rule 1612, the predecessor to present Rule 317. There is no distinction between old Rule 1612(4) and present Rule 317(1): 1185740 Ontario Ltd. v. Minister of National Revenue (1998), 150 F.T.R. 60 (F.C.T.D.) at page 64.

[27]      The decision in Pathak not only runs counter to Friends of the West Country, but is most applicable in the present instance. Section 23 of the Act, pursuant to which the Minister of the Environment made the present decision which is being challenged, requires that the Minister of Environment take into consideration the Comprehensive Study Report together with comments filed under section 22(2). This is a parallel provision to the statute considered by the Court of Appeal in Pathak, which has the same requirement when it comes to decision-making. Therefore the same result follows, that the body doing to the investigation, here the Responsible Authorities, are not extensions of the decision-making body, the Minister of Environment. The material to be disclosed under Rule 317 is the material that was before the Minister of Environment, particularly the Comprehensive Study Report and any other material which the Minister, in his discretion, may specifically have consulted in order to make the decision which is being reviewed. To go further, as pointed out by the Court of Appeal in Pathak quoted above, creates "a limitless legal fiction merging the mostly separate identities of the investigator and the Commission.". The result of this would be to open up review of the present decision of the Minister of Environment through the use of the many volumes of material in the public registry that were before the Responsible Authorities. Such an approach is not only counter-productive, but also runs counter to the procedure for an assessment, a Comprehensive Study Report and a decision by the Minister, set out in the Act . To engage in such a review of all of the documents that were before the Responsible Authorities would in effect be a challenge to the comprehensiveness of the Comprehensive Study Report and indeed of the underlying science relied upon by the Responsible Authorities and of their expertise. This goes far beyond the judicial review of a Minister"s decision which was based upon a report arising out of many months investigation by the Responsible Authorities.

[28]      This analysis does not end with Pathak. Counsel for the present Intervenor points out that the Applicant"s broad interpretation of Rule 317 production is really in the nature of discovery, requiring a potentially vast array of documents which were in the possession of the Responsible Authorities and their departments which might possibly relate to the Applicant"s case.

[29]      Mr. Justice MacKay pointed out, in Canada v. Information Commissioner (1998), 135 F.T.R. 254 at 266, there discussing the Court of Appeal"s decision in Pathak , that Rule 1612, the predecessor to present Rule 317, was "... not intended to facilitate discovery of all documents that may be in the decision-maker"s possession, or all documents that may have been gathered in an investigation.".

[30]      Pathak, which is a leading case in this particular area, led to a pertinent comment by Mr. Justice MacKay in Beno v. Létourneau J. et al. (1997), 130 F.T.R. 183, the issue there being a broadly worded request for documents, with the applicant failing to identify any existing relevant documents not already made available, that the Court ought not to intervene to order production:

... I am not persuaded that any document, relevant to the issues raised by the applications and supporting affidavits initiating judicial review proceedings, is here identified and not disclosed. While the applicants protest rightly that of course they do not know the documents of the Commission, particularly the documents here described in their requests, which ought to exist, nevertheless I believe the court ought not to intervene to order production of documents of which there is no clear evidence of existence.      [page 188]

Mr. Justice MacKay went on to note, at page 190, that a Rule 1612 request for documents must be a specific request, not merely a general description without knowledge of whether such documents exist. This corresponds with the present Rule 317 request for documents made by the Applicant and which, if given effect to, would result in complete discovery of documents.

[31]      At the very least the Applicant suggests that all relevant material in the possession of Environment Canada staff should be produced when a Rule 317 request has been made. This request for production is in addition to the material considered by the Responsible Authorities in making their Comprehensive Study Report. This is clearly going too far, for as pointed out in Beno (supra at page 108) the analysis and opinions set out in staff memoranda are irrelevant.

[32]      Clearly the weight of the case authority is that an applicant for judicial review of a decision, where the decision-making function is separate from the investigating function, is only entitled, on a Rule 317 request, to receive the documents that were before the decision-maker. Rule 317 production does not extend to the separate body, here the Responsible Authorities, who investigated and prepared the Report, nor does production extend to the analysis and opinion set out in staff memoranda.

[33]      I now turn to the issue surrounding the certification of material under section 39 of the Canada Evidence Act.

Section 39 Canada Evidence Act Certificate

[34]      The Federal government produced only portions of three 1 November 1999 letters from the Minister of Environment to the Ministers who acted as Responsible Authorities. The Crown here relies upon a certificate issued by the Clerk of the Queen"s Privy Council objecting to disclosure on the basis that the information deleted constitutes a confidence of the Queen"s Privy Council for Canada.

[35]      Initially the Applicant pointed to some ambiguity as to the identity of the documents that had been certified, however an addendum to the certificate of the Clerk resolved the identity issue. The Applicant thus turns to the merits of the claim of confidence of the Queen"s Privy Council.

[36]      The Applicant"s argument on the merits is to the effect that the Minister of Environment having made a decision the letters of 1 November 1999 can only relate to the actual final decision and thus do not fall within the only possible category of confidence, section 39(2)(d), "...a record used for or reflecting communications or discussions between Ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; ...". The Applicant goes on to suggest that the confidences defined in section 39(2) of the Evidence Act generally relates to decisions made by two or more Ministers, not to a decision, as in the present instance, made by a single Minister pursuant to a statutory mandate. Here the Applicant suggests that the deleted portions of the 1 November 1999 letters reflected the complete nature of the Minister of Environment"s decision. This is far too speculative for my liking. I prefer elements of the view of section 39 of the Evidence Act submitted to me by counsel for the Intervenor, the Attorney General of Canada.

[37]      Section 39(1) clearly sets out that where the Clerk of the Privy Council objects to disclosure by written certification that the material constitutes a confidence of the Queen"s Privy Council "... disclosure of that information shall be refused without examination or a hearing of the information by the Court, ...". In effect this is an absolute bar to disclosure of what is certified as a confidence. It is broad and strict prohibition, when compared with the common law which involved a balancing of protection of government information from disclosure against frustration of the administration of justice by the undue withholding of evidence. In contrast to the common law, section 39 provides absolute protection of cabinet confidences, for once the Clerk of the Privy Council has issued the certificate, the Court may not go behind that certificate to review the document. Review is limited to determining whether the certificate of the Clerk of the Privy Council, on its face, complies with the requirements of section 39 of the Canada Evidence Act . These propositions are touches upon in a passage in Canada v. Central Cartage Co. [1990] 2. F.C. 641 (C.A.), a decision of Chief Justice Iacobucci:

It appears clear that Parliament intended by passing section 36.3 that the determination of whether any information constitutes a confidence of the Queen"s Privy Council is to be made by a Minister of the Crown or the Clerk of the Privy Council. Subject only to compliance with the express requirements of the section, the decision of the Minister or the Clerk, as certified in writing by him or her, is not subject to review by any court. The court cannot go behind the certificate and examine the documents as it can under sections 36.1 and 36.2 of the Canada Evidence Act. However, it is open to a court to see whether the certificate on its face asserts a privilege within the statutory limitation on claims for privilege by the executive.          [pages 652-653 referring to earlier numbering of what is now s. 39 of the Canada Evidence Act ]

[38]      The displacement of the common law by what is now section 39 of the Canada Evidence Act is an interesting study in itself. It is set out in Carey v. Ontario [1986] 2 S.C.R. 637 at 647 and following, however I need not touch upon it here other than to again note the divergence of the federal statute law from the common law and the resulting absolute foreclosure of any judicial inquiry once section 39 of the Canada Evidence Act is brought into play. This sense of absolute immunity from judicial scrutiny is put clearly by the Federal Court of Appeal in Buffalo v. Canada (1998), 220 N.R. 41 at 44:

There can be no doubt of the effect of a certificate filed in conformity with the terms of s. 39(1). A court is not to examine documents listed in a certificate that tracks the language of that subsection.

Given this blunt statement against examination of the documents, it is not for this Court to further explore the conjectural statement that the 1 November 1999 letters reflect only a final decision made by a single Minister. The Clerk of the Privy Council, having reviewed the letters and drawn a conclusion that they come within the definition of a cabinet confidence under section 39(2)(d) of the Canada Evidence Act, that closes the matter. However it does not complete the submissions made by counsel who have also turned their minds to the issue of costs.

Costs

[39]      The Intervenor submits that the scope of the Applicant"s Rule 317 request is an abuse of process in that the Applicant already has access to, or is in possession of all relevant material including that which the Minister of Environment has been required to produce under the Rule. This production, in the past, included continuous access to the public registry kept pursuant to the Act together with the opportunity to request that further material be placed in public registry. Added to this is the production in fact made under Rule 317. The result is that the Applicant has possession of or access to far more material than need be produced under Rule 317.

[40]      The Intervenor is not concerned about the extensive production of documents to date, but rather takes exception to the Applicant"s presumption both that further material exists and that the Responsible Authorities are subject to Rule 317 production. The results, according to the Intervenor, are both the quintessential fishing expedition referred to in Beno (supra) at page 191 and an unwarranted application to force production of documents which were not before the Minister of Environment. The question then becomes whether this constitutes an abuse which ought to sound in costs for Rule 317 was never intended either to prolong a summary proceeding nor to permit a fishing expedition: Beno (supra) at 190 and Pfizar Canada Inc. v. Nu-Pharm Inc. (1994), 72 F.T.R. 103 at 110.

[41]      Abuse, in the context of an action, is an act which misuses or perverts the procedure of the Court. It has been characterized as a proceeding which can lead to no possible good, one where a defendant is dragged through long and expensive litigation for no possible benefit: see for example Lord Justice Bowen"s judgment in Willis v. Earl Beauchamp (1886) 11 P.D. 59 at 63 (C.A.). Abuse is also interchangeable with the expressions frivolous or vexatious: see for example The Inherent Jurisdiction of the Court by I.H. Jacobs [1970] Current Legal Problems 21 at 41.

[42]      The Intervenor submits that the principles applicable to testing for frivolous and vexatious actions, under Rule 221, are analogous to what has happened here under the Rule 317 application. The Intervenor then goes on to refer to Caterpillar Tractor Co. v. Babcock Allatt Ltd. (1983) 67 C.P.R. (2d) 135 where Mr. Justice Addy commented, at page 139, that "If a party has no grounds for making an allegation in a pleading, then, there is no basis for maintaining the allegation.". This was followed by an appropriate lecture at page 139:

A court proceeding is not a speculative exercise and actions are not to be launched or continued nor are defences to be allowed to stand where it is clear that the person making the allegation has no evidence to support it and where the onus of proof rests on that person.

Mr. Justice Addy"s decision was upheld by the Court of Appeal (1983) 72 C.P.R.(2d) 286.

[43]      The Intervenor submits that what the Applicant has done with this fruitless and expensive Rule 317 request and with this motion is to delay both the implementation of the Minister"s decision and the eventual judicial review for as long as possible, this being an abuse. In my view this may be going a little far: while the Applicant has fought hard for production of documents, with only a very limited case in support and with less success, the Court"s file, in general, bears out that the Applicant has cooperated in moving this matter along to a hearing. Perhaps the Applicant has not moved toward a hearing as quickly as the Respondent and the Intervenor would like, but it has moved at a reasonable pace. As to this motion itself, it is not, as I have observed, based on any particularly arguable premises, but neither has it been a complete and total embarrassment to the Applicant. Here I would also separate Applicant and counsel, for the latter has conducted the motion properly and has done as well as might ever be expected from a very weak position.

[44]      The Respondent and the Intervenor may have their costs of this motion. The motion was a complex one. It should therefore be taxed toward the top rates in Column III of Tariff B.

[45]      I thank all counsel for interesting and thorough presentations.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

June 6, 2000

Vancouver, British Columbia

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:      T-2127-99

STYLE OF CAUSE:      CANADIAN ARCTIC RESOURCES COMMITTEE INC.

     v.

DIAVIK DIAMOND MINES INC. and ABER DIAMOND MINES LTD.

     and

     ATTORNEY GENERAL OF CANADA

    

PLACE OF HEARING:      VANCOUVER, BC

DATE OF HEARING:      April 12, 2000

REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY

DATED:      June 6, 2000

APPEARANCES:

Mr. Michael Wenig          FOR APPLICANT

Mr. Cydney Elofson          FOR THE RESPONDENT, DIAVIK DIAMOND MINES

Ms. Mary Comeau          FOR THE RESPONDENT, ABER DIAMOND MINES

Mr. Patrick Hodgkinson          FOR INTERVENOR

SOLICITORS OF RECORD:

Law Office of Michael Wenig

Calgary, AB          FOR APPLICANT

Lawson, Lundell, Lawson & McIntosh          FOR THE RESPONDENT,

Calgary, AB          DIAVIK DIAMOND MINES

Macleod Dixon          FOR THE RESPONDENT,

Calgary, AB          ABER DIAMOND MINES

Mr. Morris Rosenberg

Deputy Attorney General          FOR INTERVENOR

of Canada