Date: 20020620
Docket: A-611-00
Neutral citation: 2002 FCA 268
CORAM: RICHARD C.J.
EVANS J.A.
MALONE J.A.
BETWEEN:
JOHN R. LAVOIE
Appellant
and
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS,
KAGIANO POWER CORPORATION and
OJIBWAYS OF THE PIC RIVER FIRST NATION
Respondents
Heard at Toronto, Ontario, on Wednesday, June 19, 2002.
Judgment delivered from the Bench at Toronto, Ontario, on Thursday, June 20, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
Date: 20020620
Docket: A-611-00
Neutral citation: 2002 FCA 268
CORAM: RICHARD C.J.
EVANS J.A.
MALONE J.A.
BETWEEN:
JOHN R. LAVOIE
Appellant
and
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS,
KAGIANO POWER CORPORATION and
OJIBWAYS OF THE PIC RIVER FIRST NATION
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
Ontario on Thursday, June 20, 2002.)
MALONE J.A.
[1] This is an appeal from an order of Lemieux J. (the Applications Judge) dated July 31, 2000, [2000] F.C.J. No. 1238, in which he dismissed the application for judicial review of two decisions under sections 32 and 35 of the Fisheries Act, R.S., c. F-14, authorizing the destruction of fish and the alteration and destruction of fish habitats as a result of the construction and operation of a hydroelectric project on the Kagiano River ("the Project") brought by John R. Lavoie (the appellant). Specifically, the appellant sought review of a July 21, 1998, decision of the Department of Fisheries and Oceans (DFO), that, pursuant to paragraph 20(1)(a) of the Canadian Environmental Assessment Act (CEAA), the Project was not likely to cause significant adverse environmental effects. Mr. Lavoie also sought judicial review of a September 21, 1998, decision made by the Department of Indian Affairs and Northern Development (INAC) to provide funding to the Ojibways of Pic River First Nation (the First Nation) in respect of the Project.
[2] There are a number of respondents in this appeal. They include: the Minister of the Environment, the Minister of Fisheries and Oceans, and the Minister of Indian and Northern Affairs (collectively, the Ministers); Kagiano Power Corporation (Kagiano), who proposed, designed and built the dam; and the First Nation.
[3] On this appeal the appellant seeks the same relief as before the Applications Judge, namely, certiorari to quash the DFO's decision to authorize the Project as well as the INAC funding decision both on the basis of non-compliance with the CEAA, mandamus compelling compliance with the CEAA, and costs. Lemieux J. heard the application on the merits and gave lengthy reasons explaining why he refused all such relief.
[4] This litigation arose from the construction and operation of a 4.9 megawatt hydraulic power generating station on the Kagiano River at Twin Falls in Northern Ontario. The Kagiano River is a tributary of the Pic River, which flows into Lake Superior. The appellant is a resident of Manitouwadge and has fished, canoed, camped and commercially harvested animals on that river for over 30 years. He is also a member and secretary of the Twin Falls Public Advisory Committee (PAC), which was established in 1992 by Kagiano and the Ontario Minister of Natural Resources (OMNR). PAC's role was to advise on the environmental aspects of the proposed development.
[5] At the opening of this appeal Kagiano argued successfully that it be permitted to introduce fresh evidence in support of a motion to have this appeal declared moot. Mootness is raised in the memoranda of fact and law of both Kagiano and the First Nation. The fresh evidence establishes that the terms of the authorizations with respect to construction have been fulfilled, the Project has been almost continuously operational since December of 1999 and the fish habitats that engaged the DFO's jurisdiction have been altered or destroyed. An order setting aside the authorizations would therefore be nugatory.
[6] The analysis to be applied when a mootness issue is raised was set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 and New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. In Borowski, supra, at para. 16, Sopinka J. wrote:
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[7] Sopinka J. held that the Borowski appeal was moot since the substratum of that appeal had disappeared once the legislation in issue had been struck down. However, the extinguishment of the live controversy between the parties does not deprive a court of its discretion to hear a case, notwithstanding its academic nature. Relying on the reasoning in Borowski, supra, the Supreme Court of Canada exercised its discretion to hear the appeal in J.G., supra, notwithstanding the lack of a live controversy. There, at para. 43, Lamer C.J. identified three criteria to be considered by a court in its exercise of discretion: the presence of an adversarial context, the concern for judicial economy, and the need for the courts to be sensitive to their role as the adjudicative branch in our political framework.
Is the Appeal Moot ?
[8] On August 25, 1998, Mr. Lavoie failed in his motion for an interim injunction concerning the DFO decisions and no injunctive relief was ever sought relative to the INAC decision. Indeed, the record surrounding the appellant's Amended Application for Judicial Review dated September 1st, 1998, discloses no other attempts to obtain interim relief or for an expedited hearing, such that live issues could be brought before the Court either during construction or prior to the Project's becoming operational in December of 1999.
[9] Instead, the appellant sought orders to quash the Ministers' decisions to authorize the Project and to compel compliance with the CEAA. Any such orders are, in the context of this case, now academic as the substratum of the litigation, i.e., the proposed construction and consequent ecological impact of the Project on its immediate surroundings, has been extinguished. Any order to consult regarding the proposed construction would also be both unnecessary and a waste of public resources. The Project is now operational and any further input from the appellant is fruitless.
[10] We note, in particular, that if this Court were now to quash the authorization issued pursuant to section 35 of the Fisheries Act, DFO would not be able to enforce compliance with the conditions attached to that authorization, or refuse to issue a further and better authorization in this respect, even if requested to do so. Kagiano required an authorization in order to destroy the fish habitat and under that authorization, mitigation measures were set out in order to minimize the environmental impact of those activities. The activities that would constitute the destruction of fish habitat have already occurred and there is nothing left for DFO to approve.
[11] Similarly, the request for certiorari to quash the decision to provide funding to the First Nation is moot as the funds were provided to the First Nation in April of 1999, some seven months after an INAC environmental assessment. The money may well have been spent by now. Granting the appellant the relief he still seeks will not restore that money.
Should The Court Hear This Moot Appeal ?
[12] The first step in the Borowski, supra, analysis has been met and the appeal is moot. However, the second stage of that analysis requires this Court now to decide whether this is a proper case in which to exercise its discretion and hear the case notwithstanding its mootness, as it did, in part, in Air Canada v. The Commission of Competition and I.M.P. Group Ltd. (Canjet Airlines), 2002 FCA 121. We turn now to the three-part inquiry articulated in Borowski, supra, and applied in J.G., supra.
[13] The first requirement is the presence of an adversarial context which continues although the "live controversy" has been extinguished. At para. 32 of Borowski, supra, Sopinka J. wrote:
this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context.
In J.G., supra, at para. 44, the majority was satisfied that an adversarial context existed because the appeal was vigorously and fully argued by the parties and the interveners. The same holds true for the appellant in this case. Mr. Lavoie has actively maintained an adversarial stance against the Project and, in our opinion, this requirement is also met. The respondents have conceded the third element in the Borowski inquiry, namely that for the Court to hear this appeal would not usurp the functions of other branches of government.
[14] This then leaves only the second element in the Borowski test, namely a consideration of judicial economy. Sopinka J. noted at para. 34 of his reasons in Borowski, supra, that the concern for judicial economy as a factor in the decision not to hear moot cases will be satisfied if the special circumstances of the case justify the expenditure of scarce judicial resources to resolve it. He then provided examples of such circumstances including whether:
a. The court's decision on the issues will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action (at para. 34);
b. The moot case is of a recurring nature but of brief duration. In order to ensure that an important question which might independently evade review be heard by the courts, the mootness doctrine need not be applied strictly. However, it is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved (at para. 36); or
c. The case is one of national or public importance, of which resolution is in the public interest but, as a caveat, there must be the additional ingredient of social cost in leaving the matter undecided (at paras. 37-9).
[15] As for the first example, the relief sought in the present appeal would have no practical effect on the rights of the parties because the undisputed evidence was that all the harm to the fish and the fish habitats had been done. We are not persuaded that the evidence of the variable volume of the river flow undermines the evidence of Kagiano's deponent. As to the INAC funding, while there may be a theoretical possibility that the money could be recovered if the INAC decision were quashed, this seems to us too remote to have a practical effect on the relief sought. Therefore, quashing the Ministers' decisions at this stage would accomplish nothing and compelling the Ministers to comply with the CEAA, assuming, of course, that they have failed to do so, would also be ineffectual. If issued, such orders would, be little more than hollow declarations.
[16] As to the second example, the decisions presently under attack are not temporary in nature and will not disappear before ultimately being resolved by the courts. It cannot be said that hydroelectric power generating stations in general and the Project in particular are evasive of review. The appellant chose to attack the underlying decisions, and, having chosen this remedy, it cannot now be said that this appeal is within a category of cases which would generally be moot by the time of appellate review. This second example from Borowski, supra, does not aid the appellant.
[17] Further, we are not convinced that this appeal raises issues which engage the national or public interest. That is not to say, however, that governmental compliance with the CEAA is not an important issue. Rather, and following Borowski, supra, we are satisfied that it is preferable to wait and determine the point in a genuine adversarial context. We would also observe that this Court has previously dealt with governmental obligations under the CEAA inFriends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (F.C.A.). In that case, Rothstein J.A. for the Court, set out the principles under which environmental assessments undertaken by the Minister shall be reviewed. In light of that analysis, the issues raised in the present appeal, including the alleged breach of the duty of procedural fairness, are neither novel nor of sufficient general importance to justify the hearing of this moot appeal. As Lemieux J. observed, there has already been extensive consultation with respect to the Project over several years.
[18] The Applications Judge held that the decision in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, overcame the mootness problem. He wrote at para. 82 that "[i]n that case, as here, the project was substantially completed yet the Supreme Court of Canada rejected an argument about mootness because compelling compliance might have some impact on mitigative measures to ameliorate any deleterious impact of the project." At para. 109 of Oldman River, supra, La Forest J. for the majority stated:
Prerogative relief should only be refused on the ground of futility in those few instances where the issuance of a prerogative writ would be effectively nugatory. For example, a case where the order could not possibly be implemented, such as an order of prohibition to a tribunal if nothing is left for it to do that can be prohibited; see de Smith, supra, at pp. 427-28. It is a different matter, though, where it cannot be determined a priori that an order in the nature of prerogative relief will have no practical effect. In the present case...it is not at all obvious that the implementation of the Guidelines Order even at this late stage will not have some influence over the mitigative measures that may be taken to ameliorate any deleterious environmental impact from the dam on an area of federal jurisdiction. I have therefore concluded that the Court of Appeal did not err in interfering with the motions judge's exercise of discretion to deny the relief sought.
[19] We would point out, however, that the project at issue in Oldman River, supra, was not completed at the time of the Supreme Court of Canada's hearing. Nor did the Project in the case at bar become operational until after Lemieux J. had heard the application. Further, the issue there was whether the federal authorities had conducted an environmental assessment at all. That is not our case. Here, the issue is the thoroughness of that assessment and the adequacy of public access. In our opinion the decision in Oldman River, supra, is not applicable for two reasons: first, the appellant has received the documents he sought, although after authorizations for construction and funding were granted. Second, there is no question that an environmental assessment was conducted. While the appellant takes issue with its scope and content, these factors render the prerogative relief sought, to use La Forest J.'s language, nugatory. The prerogative relief sought, i.e., to quash the Ministers' decisions, would do nothing to provide mitigative or ameliorative measures given that the Project has been operating almost continuously for more than two years.
[20] As to costs, the appellant submits that his special status as a pubic interest litigant should operate to protect him from an award of costs in this appeal. On the other hand, the respondents are seeking their costs both here and below.
[21] Rule 400 provides for costs, and the relevant portions read as follows:
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400. (1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.
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400. (1) La Cour a entière discrétion pour déterminer le montant des dépens, les répartir et désigner les personnes qui doivent les payer.
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(2) Costs may be awarded to or against the Crown.
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(2) Les dépens peuvent être adjugés à la Couronne ou contre elle.
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(3) In exercising its discretion under subsection (1), the Court may consider
(a) the result of the proceeding;
...
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(3) Dans l'exercice de son pouvoir discrétionnaire en application du paragraphe (1), la Cour peut tenir compte de l'un ou l'autre des facteurs suivants :
a) le résultat de l'instance;
...
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(c) the importance and complexity of the issues;
...
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c) l'importance et la complexité des questions en litige;
...
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(g) the amount of work;
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g) la charge de travail;
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(h) whether the public interest in having the proceeding litigated justifies a particular award of costs;
...
and
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h) le fait que l'intérêt public dans la résolution judiciaire de l'instance justifie une adjudication particulière des dépens;
...
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(o) any other matter that it considers relevant.
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o) toute autre question qu'elle juge pertinente.
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[22] Despite the absence of reasons expressly stating why Lemieux J. awarded costs, the reasons that he gave for dismissing the application fully support not departing from the normal rule that costs follow the event. Nor have we been persuaded that a different award would be appropriate with respect to the appellant. Although Mr. Lavoie is a public interest litigant, the PAC, a public interest group formed specifically for the Project, did not pursue the litigation. Further, as we have indicated, we are all satisfied that the legal issues raised by Mr. Lavoie are not of such significance that they merit not awarding costs to the respondents.
[23] The appeal will be dismissed with party and party costs, on the usual scale, to the respondents, both here and below. The Ministers will be entitled to one set of costs.
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-611-00
STYLE OF CAUSE: JOHN R. LAVOIE
Appellant
and
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS, KAGIANO POWER CORPORATION and
OJIBWAYS OF THE PIC RIVER FIRST NATION
Respondents
DATE OF HEARING: WEDNESDAY, JUNE 19, 2002, and
THURSDAY, JUNE 20, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: MALONE J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON THURSDAY, JUNE 20, 2002.
APPEARANCES BY: Mr. Rodney Northey
For the Appellant
Mr. John McGowan
For the Respondent, Kagiano Power Corporation
Mr. Robert Edwards
For the Respondent, Ojibways of the Pic River First Nation
Ms. Valerie Anderson
For the Respondents, Minister of Environment,
Minister of Fisheries and Oceans, Minister of Indian
& Northern Affairs
SOLICITORS OF RECORD:Birchall Northey
Barristers & Solicitors
36 Wellington Street East
Suite 300
Toronto, ON, M5E 1C7
For the Appellant
Cassells, Brock and Blackwell
Barristers & Solicitors
Scotia Plaza, Suite 2100
40 King Street West,
Toronto, Ontario
M5H 3C2
For the Respondent, Kagiano Power Corporation
Edwards and Carfagnini
Barristers & Solicitors
69 North Court Street
PO Box 2237
Thunder Bay, Ontario
P7B 5E8
For the Respondent, Ojibways of the Pic River First Nation
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondents, Minister of Environment,
Minister of Fisheries and Oceans, Minister of Indian
& Northern Affairs
FEDERAL COURT OF APPEAL
Date: 20020620
Docket: A-611-00
BETWEEN:
JOHN R. LAVOIE
Appellant
and
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND
OCEANS, THE MINISTER OF INDIAN AND
NORTHERN AFFAIRS, KAGIANO POWER
CORPORATION and OJIBWAYS OF THE
PIC RIVER FIRST NATION
Respondents
REASONS FOR JUDGMENT
OF THE COURT
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