Docket:
T-1068-13
T-1087-13
T-1086-13
Citation: 2015 FC 163
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, February 9, 2015
Present: The Honourable Mr. Justice Martineau
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BETWEEN:
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SYLVIO THIBEAULT
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Applicant
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and
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THE MINISTER OF TRANSPORT, INFRASTRUCTURE AND COMMUNITIES
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and
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MARINA DE LA CHAUDIÈRE INC.
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Respondents
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JUDGMENT AND REASONS
[1]
The applicant challenges the legality of three approvals
dated June 12 or 14, 2013, through which the Minister of Transport,
Infrastructure and Communities (Minister) approved the work known as dock “B”
(T-1068-13), dock “D” (T-1087-13) and the mooring area, Zone 4 (T-1086-13)
of the Marina de la Chaudière Inc. (Marina), at the locations indicated and in
accordance with the plans that are attached to the ministerial approvals.
[2]
The three ministerial approvals were granted under
the Navigable Waters Protection Act, RSC 1985, c N-22 (Act or NWPA), renamed
the Navigation Protection Act, on April 1, 2014. These approvals
are valid for a period of 30 years in application of the schedule specified at
paragraph 3(1) of the Navigable Waters Works Regulations, CRC, c
1232. All references to the Act and to any applicable regulation in these
reasons refer to the provisions in force at the time that the disputed approvals
were issued.
[3]
These dockets, as well as docket T-884-13, in
which the applicant seeks to set aside the ministerial order ordering the applicant
to remove his floating structure located at the mouth of the Chaudière River, were
heard consecutively by the Court on January 27 and 28, 2015. The Court’s
judgment in docket T-884-13 is rendered concurrently: Thibeault v Canada (Attorney
General), 2015 FC 162.
[4]
It is the last step in a long legal saga before
the Quebec and federal courts, which has pitted the applicant and other
Chaudière River shoreline property owners against the Marina since the late
1980s. In addition to the facts reported by the parties in their respective
affidavits, on the day of the hearing, the applicant provided, with the Court’s
permission, a history of the disputes concerning the Chaudière River basin, the
salient aspects of which are summarized below.
[5]
In 1988, the Superior Court was invited to
examine the property of the Chaudière River bed. In Marchand c Marina de la
Chaudière inc, [1988] JQ no 1730, EYB 1988-83449 (QC CS), it rejected the action
for a declaration of ownership rights and an injunction of several shoreline
property owners on the ground that the Chaudière River bed never left the public
domain. In appeal, the Quebec Court of Appeal upheld this judgment, but without
affirming the Crown’s right of ownership: Marchand c Marina de la Chaudière
inc, [1998] JQ no 2185 (QC CA) (sub-name Amyot c Marina de la chaudière
inc, 1998 CanLII 13000), leave to appeal to SCC denied, [1998] CSCR 464. Indeed,
although the Chaudière River bed had entered into the private domain in 1636, the
shoreline property owners had not shown the continuity of the chain of title relating
to the Chaudière River bed.
[6]
The disputes of the shoreline property owners with
the Marina—which claims a thirty-year possession—gave way to several skirmishes,
with no party coming out the winner to date. To this point, Mr. Tremblay and
Mr. Thibeault seem to be the two main standard-bearers in this trench
warfare fought at the mouth of the Chaudière River, where it flows into the
St. Lawrence River, not far from the old Québec bridge, in an area under
the jurisdiction of the Québec Port Authority.
[7]
Therefore, in 2004, e.g. in Tremblay c Marina
de la Chaudière Inc, 2004 CanLII 18226 (QC CS), aff’d in 2005 QCCA 1149, the
Superior Court determined that Mr. Tremblay, another resident of the Chaudière
River shore, had riparian rights, including that of maintaining his dock, and
ordered the Marina to ensure that its floating docks are installed 70 feet from
Mr. Tremblay’s dock. Incidentally, in 2011, the Small Claims Division of
the Court of Québec dismissed Mr. Tremblay’s application, which alleged, at
that time, that the Marina’s docks had damaged his structures during a flooding:
Tremblay c Marina de la Chaudière, 2011 QCCQ 18187. However, the reason
for the dismissal is limited to an issue of evidence and causation: Mr. Tremblay
simply did not prove, on a balance of probabilities, that the Marina structures
were the cause of the damage.
[8]
At the same time, in 2007, the Superior Court
refused to issue an interlocutory injunction to oblige the Marina to remove any
obstructions to navigation and clear a route of a minimum of 100 feet wide so
that the applicant could access his dock with his vessel the “Grand Charlevoix”:
Thibeault c Marina de la Chaudière inc, 2007 QCCS 4178. The application was
dismissed because the three criteria for an interlocutory injunction were not
met. From one perspective, the Court did not set aside Mr. Thibeault’s riparian
rights. However, it seems doubtful that the applicant’s navigation right could cover
a vessel 67 feet in length and 21 feet in width, although it does not seem that
the applicant will suffer irreparable harm and that the balance of convenience favours
the Marina. In the same docket, in 2011, the Superior Court allowed the
applicant’s motion to amend the motion for an injunction following the sale of
the “Grand Charlevoix” and rejected a motion to dismiss the Marina: Thibault
c Marina de la Chaudière, 2011 QCCS 3435, aff’d in 2011 QCCA 1524.
[9]
However, in 2011, the Superior Court dismissed
Mr. Thibeault’s the motion for permanent injunction, but again for nuanced
reasons. Indeed, the proceeding was rendered moot by the fact that the
applicant was no longer in possession of the “Grand Charlevoix”, while pointing
out what may also interest us today, that the Marina no longer had approval for
the structures covered by the application for injunction: Thibeault c Marina
de la Chaudière inc, 2012 QCCS 2938, motion to dismiss appeal granted 2012
QCCA 1226. The Superior Court indicated that, in these circumstances, it would
be up to the Minister to assess the situation in the context of the new application
for approval presented by the Marina.
[10]
In addition, several related dockets are still in
the hearing stage. Before the Federal Court, in addition to these dockets and docket
T-884-13, docket T-895-12 pits Mr. Tremblay personally and the company
belonging to Mr. Thibeault against the Marina and any person who has a
right over the vessels “Ponton C” and “Ponton D”. Two dockets are also pending
before the Superior Court. In docket number 200-17-018142-133, the applicant and
two other owners are suing the Marina for damages, which brought a counterclaim,
while in docket number 200-17-018621-136, the Marina sued for damages and by injunction
Mr. Thibeault and Mr. Tremblay, who brought a counterclaim. The Attorney
General of Canada intervened in the last docket, and his representative confirmed
at the hearing that she expected that, this time, the Superior Court would affirm
the Crown’s title on the Chaudière River bed. It should be remembered that at
the time, in Marchand, above, the Attorney General of Quebec simply
relied on justice, had not proffered any evidence and limited himself to
supporting the argument of the Marina and the other respondents who were disputing
the owners’ title on the Chaudière River bed.
[11]
This being said, the facts leading up to the
current application for judicial review are not really contested. On
April 20, 2013, a notice was published in the Canada Gazette
informing the public that the Marina had applied to the Minister for approval
of the plans and site of three floating docks on the Chaudière River, and of
mooring areas in the St. Lawrence River and in the Chaudière River. Interested
parties had 30 days after the publication of the notice to direct their
comments, in writing, on the effect of these works on marine navigation to the
manager of the Navigable Waters Protection Program [NWPP].
[12]
On May 13, 2013, the applicant forwarded to
Richard Jones, the NWPP manager, a formal notice that was taken as opposition
to the Marina’s application for ministerial approval. In essence, the applicant
informed the manager that he is the exclusive owner or occupant of the
Chaudière River bed where docks B and D and the mooring buoys in Zone 4 were to
be installed, and that the Minister does not have the authority to issue
approvals concerning the Marina’s floating docks because they are vessels
rather than works under the Act. By the same logic, the applicant informed the
manager that he placed “a vessel at anchor near the
site picked by the Marina for Dock “B”, on Lot C, of which he has exclusive
ownership, in order to do work on his property”.
[13]
On June 12 and 14, 2013, in view of the
effect on marine navigation, the Minister granted the Marina the three approvals
listed in these applications for judicial review, which were gathered for the
purposes of the hearing. The ministerial approvals allow the Marina—subject to
the specified conditions and in accordance with the approved plans—to install dock B
(T-1068-13), dock D (T-1087-13) and the mooring area—Zone 4 (T-1086-13) in the
Chaudière River. Indeed, these approvals are considered “recommendable” by the Minister
in accordance with the corresponding plans for a period of 30 years.
[14]
The applicant requires in these dockets to have
set aside the ministerial approvals, for the following reasons. First, the Minister
exceeded his jurisdiction when he found that docks B and D of the Marina are “works”
within the meaning of the NWPA. Second, the Minister committed a reviewable error
in not considering the ownership of the Chaudière River bed before issuing the approvals.
Third, the Minister erred in his assessment of riparian rights. Fourth, the
applicant alleged that the actions of officials give rise to a reasonable
apprehension of bias, which vitiates the entire administrative process.
[15]
The reasonableness standard applies to the three
first grounds since they concern questions of mixed fact and law, while the
correctness standard applies to the applicant’s last ground for setting aside the
approvals since it is a procedural fairness question: Dunsmuir v New
Brunswick, 2008 SCC 9 at para 51 (Dunsmuir); Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43.
Interest
to act
[16]
Before assessing the applicant’s four arguments,
the Court must deal with the Minister’s preliminary argument that the applicant
does not have the interest to act. The Minister submits that he is a [translation] “third party” and that he
is not “directly affected” by the ministerial approvals, so that he does not
have the required interest under subsection 18.1(1) of the Federal
Courts Act, RSC 1985, c F-7 (FCA):
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18.1 (1) An application for judicial review
may be made by the Attorney General of Canada or by anyone directly affected
by the matter in respect of which relief is sought.
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18.1 (1) Une demande de contrôle judiciaire peut être présentée par le
procureur général du Canada ou par quiconque est directement touché par
l’objet de la demande.
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[17]
As a general rule, a person would be “directly
affected”, when they can show to the Court that the impugned decision must have
affected his rights, imposed on him legal obligations or prejudicially affected
him: League for Human Rights of B'Nai Brith Canada v Odynsky, 2010 FCA 307
at para 58. The Minister, who fears an avalanche of applications for judicial
review from other owners (Irving Shipbuilding Inc v Canada (Attorney General),
2009 FCA 116 at para 50), considers that the ministerial approvals do not affect
the applicant’s rights or obligations and do not directly prejudicially affect
him.
[18]
The applicant argues the contrary, that he has
interest to act since his individual rights have been affected by the ministerial
approvals. The interest to act cannot be limited to the person who has
requested the ministerial approval—in this case, the Marina, who would become
the only interested party—which is contrary to the right of any interested
litigant to have an administrative decision reviewed that will affect for a period
of 30 years the right to navigation. As an opponent of the Marina project and a
shoreline property owner, the applicant may thus challenge the legality of the ministerial
approvals.
[19]
In my view, the question of the applicant’s interest
is not only linked to whether his rights are affected, but also to the scope of
the remedy sought and to the jurisdiction of the Minister and the courts. Insofar
as the applicant seeks to set aside the ministerial approvals because he
allegedly has an exclusive right of ownership or lease on the portions of the Chaudière
River bed where docks B and D are anchored, as well as some buoys, his legal
interest appears to us to be not only very disputable, but for the reasons set
out below we are of the view that the Minister has committed no reviewable
error in not considering the ownership of the Chaudière River bed.
[20]
However, it is not the same for the effects of
the Marina project on the navigation and riparian rights affected by the ministerial
approvals. The approvals given by the Minister under the NWPA are exclusively
given to a work [translation] “given the effects of the works on marine navigation”,
which confers a certain legal interest on owners. Moreover, at the invitation of
the authorities, numerous owners sent their written comments to the NWPP
manager. It is also apparent from the certified tribunal record that the
Minister considered the riparian rights, including the right to access water, before
issuing the approvals, and that in some circumstances, he imposed changes to
the Marina’s plans to respect these rights (see [translation] “The Marina de la
Chaudière – Rationale of prepublication decisions TC NWPA”, Certified Tribunal
Record, document 88 (Rationale of decisions)).
[21]
In this case, in addition to alleging being the
owner of river bed lots, the applicant is also the resident of a shoreline
property, lot 2 288 416, 2 454 403 (Lot 416), as it appears in particular from [translation] “Plan
1 of 5: Illustration of the riparian rights in the Saint-Laurent River & the
Chaudière River estuary vs the marine structures of the Marina de la Chaudière
Inc. based on the analysis by TC-NWPP dated April 8, 2013” (Certified
Tribunal Record, document 14) and [translation]
“Plan 5 of 5: Illustration of riparian rights near dock
D (marina) based on the analysis by TC-NWPP” (Certified Tribunal Record,
document 16). As the holder of riparian rights, the applicant is directly
affected by the subject of the Marina’s approval request, at least as
specifically concerns dock D, which is located across from the shoreline
property where he lives (docket T-1087-13). The ministerial approval regarding
the exact location of dock D in the Chaudière River has a direct effect on the applicant’s
riparian rights, who now sees his water access rights limited by the Marina’s structures.
[22]
Paragraphs 35 to 40 of the Superior Court’s judgment
in Thibeault c Marina de la Chaudière, 2012 QCCS 2938, are particularly
instructive:
[translation]
[35] The notice published in the Canada
Gazette and in newspapers in the area where the works are to be built had to be
made in the days following the hearing of this case and it is from the last
publication that the 30-day period began, which is required to enable the NWPP
to collect public comments, including, of course, comments from the Sylvio
Thibeault, if he wishes to make any.
[36] Moreover, the plan of the location of
the works proposed by the Marina was filed in the Court record and Sylvio
Thibeault was able to read it.
[37] In the circumstances, is it up to the
Superior Court to determine the width of the open channel that must be
maintained in the Chaudière River and the width of the shipping lane, while the
review of this matter under the provisions of the Navigable Waters
Protection Act is currently underway?
[38] We believe that it is up to Transport
Canada and not to the Superior Court to approve the works in navigable waters
based on the enabling law and regulations. Moreover, it is not for us to
speculate on possible recourse, where appropriate, in the event that an
interested party is not satisfied with the decisions made by the competent
authorities under the provisions of the Navigable Waters Protection Act.
[39] In short, it is our view that the
applicant's rights as a shoreline owner on the Chaudière River to navigation on
this river have limits and that, in the circumstances, it is up to the
Minister, by virtue of the powers conferred on him by the Navigable Waters
Protection Act, to reassess the situation based on the application that was
submitted by the Marina and submissions that interested persons may present
under section 9(5) of the Act.
[40] Therefore, the applicant's request will
be dismissed with costs. The costs do not, however, include the costs and fees
of experts since they were not required to determine the dispute.
[23]
Also, although the applicant has a potential injunction
and damages remedy against the Marina if his ownership rights and the
disturbances alleged are affirmed by the Superior Court of Quebec, despite this,
the Federal Court has exclusive jurisdiction to deal with the legality of ministerial
approvals and review all the applicant’s arguments based on the public’s right
to navigation, including the binding quality and the effects of internal directive
TP 10387 E in assessing riparian rights. However, for the reasons set out below,
these applications for judicial review must fail, as the Court did not find a
reason to intervene on the merits.
Reasonableness of the ministerial designation
[24]
The applicant’s first ground relates to the
Minister’s jurisdiction to act on the Marina’s approval request. This jurisdiction
is disputed by the applicant, who argues that we are dealing with vessel and not works. For the same reasons as those
set out in docket T-884-13 (2015 FC 162 at paras 12 to 26), it was reasonable
for the Minister to find that docks B and D, and the mooring area – Zone 4, are
works within the meaning of the Act.
[25]
The definitions of “vessel”
and “work” are found at section 2 of the Act:
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2. In this Act,
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2. Les définitions qui suivent s’appliquent à la présente loi.
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…
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[…]
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“vessel” includes
every description of ship, boat or craft of any kind, without regard to method
or lack of propulsion and to whether it is used as a sea-going vessel or on
inland waters only, including everything forming part of its machinery,
tackle, equipment, cargo, stores or ballast;
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« bateau » Toute
construction flottante conçue ou utilisée pour la navigation en mer ou dans
les eaux internes, qu’elle soit pourvue ou non d’un moyen propre de
propulsion. Est compris dans la présente définition tout ce qui fait partie
des machines, de l’outillage de chargement, de l’équipement, de la cargaison,
des approvisionnements ou du lest du bateau.
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…
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[…]
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“work” includes
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« ouvrage » Sont
compris parmi les ouvrages :
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(a) any man-made
structure, device or thing, whether temporary or permanent, that may
interfere with navigation; and
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a) les constructions,
dispositifs ou autres objets d’origine humaine, qu’ils soient temporaires ou
permanents, susceptibles de nuire à la navigation;
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(b) any dumping
of fill in any navigable water, or any excavation of materials from the bed
of any navigable water, that may interfere with navigation
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b) les
déversements de remblais dans les eaux navigables ou les excavations de
matériaux tirés du lit d’eaux navigables, susceptibles de nuire à la
navigation.
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[26]
The fact that docks B and D of the Marina are “floating
structures” does not mean that they are automatically “vessels”. Furthermore, it
was reasonable for the Minister to find that docks B and D were not designed or
used for navigation, since the Marina’s intention is clear: the docks have
always been and will continue to be used for mooring vessels. The fact that
some jurisprudential tests of the definition of vessel within the meaning of
the FCA are met by the docks—e.g. they were built to be used in water (Canada
v Saint John Shipbuilding and Dry Dock Co, (1981) 126 DLR (3d) 353, [1981]
FCJ No 608 (FCA) at para 29)—does not mean that the docks must be considered to
be designed or used for navigation. Therefore, it was reasonable for the
Minister to find that docks anchored in a fixed manner that are used for mooring
vessels are works within the meaning of the Act.
Failure to consider the ownership of the Chaudière River bed
[27]
Second, the applicant alleges that the Minister
committed a reviewable error by not considering that he was the owner of the Chaudière
River bed. According to the applicant, the Chaudière River bed is part of the
private domain, while he is the exclusive owner or lessor of four parcels of
the river bed. The Minister had the obligation to consider the ownership of the
Chaudière River bed, since he had to assess several elements to determine
whether it is justified in the circumstances to limit the public right to
navigation (Friends of the Oldman River v Canada, [1992] 1 S.C.R. 3 at p
39). In addition, the approvals issued by the Minister approve not only the
work, but also [translation] “its construction, location, maintenance, operation and use”.
It follows that the Minister must verify whether the Marina could legally build
the work at the planned location. Also, when applicants make a request for work
approval, they must indicate in the application form whether they are owners of
the shoreline property or if they received authorization of the shoreline
property owner, which shows that the Minister verifies whether the applicants
are owners or the permission of the owner. The consultations with the City of
Lévis, the Port of Quebec and Aboriginal groups show that the Minister was
concerned with the ownership of the river bed and that he would have had to
ensure that the Marina had the applicant’s authorization to install the works.
[28]
But for the Minister, the ownership rights of
the Chaudière River bed did not have to be considered during the review of the request
for works approval in the Marina. That is, the public right to navigation is
independent from the ownership of the river bed. Moreover, the approvals given
by the Minister have no impact on the ownership rights alleged by the applicant,
since they clearly indicate that other laws or regulations may be applicable
and that the Marina must obtain [translation]
“any other approval or building permit, under any applicable
law”. Also, the person receiving an approval from the Minister does not
acquire any right to interfere with the private rights of third parties (Champion
& White v Vancouver (City), [1917] SCJ No 84 at para 7; Nicholson
v Moran, [1949] 4 DLR 571, [1949] BCJ No 102 (C-B CS) at paras 19-21).
In addition, the applicant acknowledged in case number 200-17-018621-136 between
the parties before the Superior Court of Quebec that the approvals granted by the
Minister have no impact on the right of ownership on an immoveable. The
Minister alleged that imposing on the Minister the obligation to consider the ownership
rights would equal requesting that the Minister substitute himself to the Superior
Court to decide the ownership of the Chaudière River bed. Also, the
consultations conducted by the Minister with third parties did not concern the ownership
of the river bed, but rather to fulfill the obligations of the Federal Crown,
in particular with respect to consultations with Aboriginal people and
environmental matters.
[29]
At the hearing, counsel for the applicant replied
that it was apparent at the reading of the file that the Minister considered
that the Chaudière River bed was Crown land. Further, she drew from it a
finding of bias. Therefore, it is not that the Minister did not consider the
ownership of the bed, but rather that the Minister exceeded his jurisdiction in
finding that the Chaudière River bed falls under Crown land and in imposing conditions
that encroached on the applicant’s property. In the circumstances where the ownership
of the location planned for the construction of works in the Marina was
contentious, the Minister should have avoided giving any approval for structures
in the Chaudière River. In addition, according to the applicant, the fact that
the approvals indicate that the person who has them must ensure that the works
comply with the other applicable laws and regulations does not exempt the
Minister from considering the ownership rights. Indeed, that would be
equivalent to leaving full discretion to the Minister, which would force the litigants
to battle indefinitely before the courts of civil jurisdiction.
[30]
The applicant’s arguments are not well-founded
in this case.
[31]
As indicated above, the approvals granted by the
Minister have no direct impact on the ownership rights of the Chaudière River
bed, since the Marina must still respect the other applicable laws and
regulations. The approvals clearly indicate that:
This document approves the work in terms of
its effect on marine navigation under the Navigable Waters Protection Act.
The work must be built, placed, maintained, operated, used and removed in
accordance with the approved plan(s), the Navigable Waters Protection Act,
its regulations and the terms and conditions in the Approval.
It is the applicant's responsibility to
obtain any other forms of approval or building permits, under any applicable
laws. [Emphasis added]
[32]
At the hearing, counsel for the Marina went
further, stating that it had, indeed, properly entered into a lease with the
Quebec Port Authority, which allowed him to install on the river bed and set up
floating docks in the places indicated on the plans approved by the Minister. Of
course, the applicant does not agree and considers that it is rather to him
that the Marina should speak. This issue will have to be resolved eventually, and
decisively, by the Superior Court.
[33]
Furthermore, contrary to what counsel for the applicant
claimed in her oral arguments, it is not apparent from the file that the
Minister was influenced by the fact that the Chaudière River bed would be Crown
land. In any case, the Minister does not have the power to declare that so and
so is the owner. This is an issue affecting ownership and civil rights arising exclusively
from the legislative authority of the provinces, and subject, of course, to the
specific provisions that one finds in the Canadian constitution with respect to
provincial and federal public properties (e.g. sections 108 and 109, and Third
Schedule, paras 1, 2 and 3, in particular the Constitution Act, 1867,
30 & 31 Victoria, c 3).
[34]
In conclusion, under the NWPA, the role of the Minister
or officials is to enforce the NWPA and its regulations (sections 33-34 of
the NWPA), and not to enforce the ownership rights claimed by the applicant in
this case. Therefore, it was reasonable for the Minister not to consider the
applicant’s allegations of ownership rights on the Chaudière River bed in his
formal notice letter.
Assessment of riparian
rights
[35]
The third ground for setting aside raised by the
applicant concerns the assessment of riparian rights conducted by the Minister.
[36]
In the judgment that was rendered by the Quebec
Court of Appeal in 1998 in Marchand, above, Justice Letarte, beyond the
question of ownership of the Chaudière River bed, reiterates at pages 11 and
12 of his opinion, the following regarding the nature of riparian rights:
[translation]
Riparian rights do not include the ownership
of the river bed; rather, they are closely linked to the ownership rights of
the riparian land, regardless of the navigability of the river. If they can include
the following rights—access rights, right to general household use, right to
anchorage and mooring, right to non-commercial supply and diversion, right to commercial
and industrial use and, in some circumstances, fishing rights, riparian rights have
nothing to do with the ownership of the land.
[37]
There is no doubt that when the Minister approves
plans for a proposed location in a navigable river, he will incidentally restrict
or modify, for 30 years in the future the usage and access rights to the riparian
waters, although he has the duty to ensure, moreover, that the docks, mooring
areas and buoys that will be installed will not unduly restrict navigation. The
conditions prescribed in the ministerial approvals result from the exercise of
federal jurisdiction over navigation, which has been delegated to the Minister.
But, if the Minister must be afforded very broad discretion, then the approvals
must be given all the attributes of reasonableness.
[38]
As we saw above, the shoreline property owners had
the opportunity to make written submissions, so that no issue of procedural
fairness arises in this case. That said, the applicant claimed that the
Minister committed several errors in his assessment of riparian rights, which
makes the ministerial approvals unreasonable, and which the respondents are
disputing.
[39]
According to the applicant, the Minister’s calculations
do not consider the true size of the vessels that pass through the Chaudière
River. Indeed, the Minister did not consider the two-way traffic of vessels or winds
and currents and the proposal of the river lots was not done in accordance with
the principles accepted by the Ordre des arpenteurs-géomètres du Québec. Finally,
the applicant alleges that the Minister did not follow directive TP 10387 E with
respect to distance requirements.
[40]
In this respect, the applicant alleged that the
Minister provided a clearance zone of 14.5 metres, which represents the one-way
traffic of vessels only, based on vessels of an average size of 3 metres. The
applicant alleged that he had already advised the Minister that the Marina’s structures
did not respect the space required for a safety margin of ships, which now vary
in size from 6 to 8 metres and the Minister should have considered the passing of
large vessels rather than small or medium vessels. Furthermore, the Minister
indicated that he considered two way traffic, but these are “misrepresentations”
since it is apparent from the calculations in the record that only one-way
traffic was considered and comes down to a clearance zone of 14.5 metres, which
is much too small to allow for two-way traffic. Moreover, the applicant alleged
that the Minister did not respect the distance of 45.7 metres planned for riparian
rights in directive TP 10387 E. Also, the Chaudière River is a tidal river, but
the Minister instead applied the criteria applicable to rivers without tides, which
means that the distances are not appropriate to the real situation.
[41]
The respondent maintains that the Minister acted
reasonably and that the Court does not have to substitute itself for the officials
that conducted a careful assessment of the approval request as revealed in the “Rationale
of decisions”. Directive TP 10387 E simply contains guidelines that do not have
force of law and cannot limit the discretion provided in the Act. The directive
gives the decision-maker the discretion as to how much importance to give to
each factor. Furthermore, although an error was produced in the “Rationale of
decisions”—since the graphic applicable to rivers without tides was copied
rather than that applicable to tidal rivers—the Minister properly considered the
criteria applicable to tidal rivers, as appears from the references and calculations
in the rest of the document. Finally, riparian rights are not absolute. For
example, they do not confer on the shoreline owner the right to dock a vessel of
unlimited size (Thibeault c Marina de la Chaudière inc, 2007 QCCS 4178 at
para 33). In this case, the Minister assessed the situation and imposed conditions
on the Marina to ensure that the impact on navigation is limited.
[42]
I agree with the general reasoning of the respondents.
It should be reiterated that the Minister’s authority to approve is discretionary.
It is clear that the Minister assessed the effects on the navigation of the works
proposed by the Marina and that he assessed the riparian rights, although the
distances applied are not the same as those indicated by directive TP 10387 E. Moreover,
the directive is not binding nor is it binding upon the Minister. There is no
evidence of bad faith here. The Minister’s reasoning is not arbitrary and
relies on the evidence in the record. It is not appropriate to intervene in
this case.
[43]
Specifically, the document “Rationale of
decisions” shows that the Minister considered the riparian rights of access to
and removal from water, and that these riparian rights were assessed in the appropriate
context of tidal zones. The Minister considered numerous factors, including
that throughout the Chaudière River basin, there is not two metres in depth of
water during low tide, and that it is an at-risk uncharted area. For each work
in the Marina, the Minister considered the affected shoreline lots, and when
the Marina’s plans did not respect a sufficient manoeuvring area and did not provide
enough space for the right to access the water, the Minister requested changes
to the plans so as to free up enough space for the exercise of riparian rights.
Moreover, with respect to dock D, the Minister found that the dock should be
moved 12 metres north east. Furthermore, the Minister had a study and expertise
report (Certified Tribunal Record, document 84), which described the state of the
variations of distances between the docks caused by the tides and the use of
the waterway. Based on this report, it was reasonable for the Minister to base
the distances of the manoeuvring area on vessels of an average width of three metres.
In addition, it is apparent from document 105 of the Certified Tribunal Record
that the Minister calculated a manoeuvring area for one-way traffic, and the fact
that the Rationale of decisions erroneously indicates that two-way traffic was
used does not make the decision unreasonable, especially since it was up to the
Minister to choose to apply a manoeuvring area for one-way traffic.
[44]
To conclude this point, the assessment made by the
Minister of the works proposed for navigation and riparian rights was reasonable.
The Court did not have to conduct its own assessment of the evidence and the specific
technical factors considered by the Minister in exercise of its discretion.
No reasonable apprehension
of bias
[45]
Finally, the applicant alleged that the Minister
showed partiality in favor of the Marina by prejudging the issue of the nature of
the Chaudière River bed, acting with bias when assessing riparian rights, by
having the applicant’s work removed and not applying directive TP 10387 E.
[46]
The Marina argued that there is no reasonable
apprehension of bias. In fact, it complied with the Act and with the Minister’s
directives. The Minister did not have to consider the ownership of the Chaudière
River bed and it would not be practical for the Minister to suspend the issue
of approvals each time that an allegation of right of ownership is disputed. Further,
in a river like the Chaudière River basin, it is not possible to have co-ordinates
of structures to the nearest centimeter since the tide and floods make such precision
impossible.
[47]
I reject all of the applicant’s arguments,
which are repeated—this time under the theme of bias—arguments that were previously
reviewed and rejected by the Court above and in docket T-884-13: 2015 FC
162 at paras 32 to 36. The arguments of bias raised by the applicant are
essentially a disagreement on the facts and the methods used by the Minister. The
applicant did not submit credible evidence that raises a reasonable
apprehension of bias, only suppositions. There is no evidence of bad faith or
of evidence that the Minister allegedly gave reason to believe that the approvals
were to be issued before they had been.
[48]
In conclusion, the applicant did not show that “…an informed person, viewing the matter realistically and
practically—and having thought the matter through” would have reason to
fear that the decision was been made in a biased way (Committee for Justice and
Liberty v National Energy Board et al., [1978] 1 S.C.R. 369 at p 394).
Conclusion
[49]
For these reasons, the three applications for
judicial review are dismissed with costs.
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