Date: 20080919
Docket: T-1380-08
Citation: 2008
FC 1061
Ottawa, Ontario, September 19, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ALBERTA WILDERNESS ASSOCIATION,
CANADIAN PARKS AND WILDERNESS SOCIETY,
THE PEACE PARKLANDS NATURALISTS, and
THE SOUTH PEACE ENVIRONMENT
ASSOCIATION
Applicants
and
ATTORNEY GENERAL OF CANADA,
MINISTER OF ENVIRONMENT,
MINISTER OF FISHERIES AND OCEANS,
THE ALBERTA UTILITIES COMMISSION,
THE NATURAL RESOURCES CONSERVATION BOARD,
and
GLACIER POWER LTD.
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
Applicants are non-profit societies or established environmental groups whose
objects are to protect the environment. They have brought a judicial review of
a Joint Review Panel (JRP) decision denying requests to adjourn a hearing
scheduled for this Monday, September 22, 2008. Other parties to the adjournment
request have not sought judicial review.
[2]
This
matter had originally come on for hearing in Edmonton where it was impossible to have the
matter heard. The first order of business was the Applicant’s request to have
the judicial review expedited and heard today. All parties either consented (or,
at least, did not oppose expedition) because of the looming commencement of the
JRP hearings. The Court concluded that it would be in the best interests of all
concerned that this matter be heard now.
I. Summary
Background
[3]
Glacier
Power Ltd.(Glacier) has applied for approval to construct and operate a
hydroelectric facility in the Peace River. The project had originally been
turned down by a panel constituted under Alberta law.
[4]
Glacier
refiled its application and eventually, by agreement between the Natural
Resources Conservation Board, the Alberta Utilities Commission and the Federal
Minister of the Environment on April 10, 2008, this matter was to proceed
before a Joint Review Panel.
[5]
Prior to
April 10, 2008, there had been procedural steps taken under the Alberta regime dealing with
pre-hearing matters. The Applicants were involved and had been denied standing
in those proceedings.
[6]
After the
Canadian Environmental Assessment Agency (CEAA) gave notice of the JRP process,
the Applicants applied for funding for the hearing. Funding was granted on July
21, 2008, and the Applicants retained Klimek Law, a firm which had represented
the group in earlier and other proceedings.
[7]
The Applicants
were advised on August 19, 2008 that the JRP’s hearing would commence on
September 22, 2008 in the Peace River at Fairview.
[8]
The next
day Klimek Law requested an adjournment because counsel was committed to other
cases during the hearing timeframe. That request was denied on August 27, 2008.
As indicated earlier, the Applicants were not the only participants requesting
adjournment – others included a community group and BC Hydro.
[9]
The JRP
recognized that setting hearing dates resulted in calendar conflicts unless the
hearing date is set many months in advance. Having recognized the problem, the
JRP concluded that the inconvenience to these intervenors did not justify an
adjournment. The Applicants had indicated that counsel could be available in
November. The JRP concluded that it expected the Applicants to find alternate
legal counsel.
[10]
The Applicants
asked the JRP for reconsideration but that request was denied.
II. Analysis and
Conclusion
[11]
What is at
issue here is judicial review of an interlocutory decision of an expert
tribunal in respect of the conduct of its proceedings. The effect of granting a
judicial review is to stay the JRP hearing for some undetermined time.
[12]
Courts are
reluctant to interfere in interlocutory decisions of a tribunal but for
“exceptional circumstances”. Judicial review is usually made available when
there is finality to the process. The judicial policy against intervention has
a practical element – efficiency of judicial resources – as well as a
principled one – respect for the role of a tribunal in controlling its own
processes.
[13]
In
addition to this above hurdle of showing some exceptional circumstance
justifying judicial intervention, the Applicants must overcome the “standard of
review” applicable. Given the authority of an expert tribunal to control its
processes and the highly discretionary nature of an adjournment decision, in
accordance with Dunsmuir v. New Brunswick, 2008 SCC 9, the standard of review is one of reasonableness
overlaid with considerable deference.
[14]
I do not
find that there are any exceptional circumstances justifying judicial
intervention. The Applicants have not actually established prejudice nor shown
that no alternate counsel is or could be available. The complaint of prejudice
and denial of natural justice presupposes a decision on the project’s merits
that is adverse to their interests. In this regard, the Applicants are
premature. A rehearing of a five-day matter (assuming a negative merits decision
overturned by the courts) is not the type of prejudice or situation referred to
in Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2
S.C.R. 735.
[15]
Furthermore,
there is nothing unreasonable about the JRP’s conclusion that this matter
should not be adjourned. The Panel addressed the issue of prejudice to the
Applicant. There is no evidence that the Panel’s expectation of appointment of
alternate counsel could not be accomplished.
[16]
The Panel
was also aware of the prejudice which could be caused to Glacier and to the
numerous other intervenors and participants, including a number of local native
groups and other members of the public. The hearing date is set, other parties
are prepared, and witnesses lined up. Disruption of the hearing for the benefit
of one group affects all others.
[17]
There is
no assurance that what is convenient timing for the Applicant – a hearing some
time in November – is convenient or practical to anyone else. An adjournment to
one participant due to counsel’s unavailability essentially means postponement
of the hearing until all counsel are available.
[18]
It is the
Panel’s obligation to wrestle with these conflicting demands and there is
nothing unreasonable about its conclusion that the case should proceed as
scheduled.
[19]
Further,
the Applicants relied on the CEAA Guidelines which referred to a 45-day notice before
a hearing commenced as if this was a statutorily fixed timeframe. However, the
Guidelines are not binding (even if Guidelines might be binding in other
instances) where there is a joint review with provincial bodies.
[20]
The
decision in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, is not
applicable to these facts. The guidelines in that case were mandatory and
sanctioned by Order-in-Council. The Guidelines in this case are more
discretionary.
[21]
Moreover,
a 30-day period before commencement of the hearing had been put forward since
the JRP agreement in July 2008. There had been no objection by the Applicants
and they cannot now raise an issue of “legitimate expectation”.
[22]
Even if
the notice period should have been 45 days, it would be of little assistance
since the Applicant’s counsel is also unavailable during that longer period.
[23]
Therefore,
for these reasons, this judicial review is dismissed with costs.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed with costs.
“Michael
L. Phelan”
Email this Content