Docket: T-1972-14
Citation:
2018 FC 35
Ottawa, Ontario, January 15, 2018
PRESENT: The
Honourable Mr. Justice O'Reilly
|
BETWEEN:
|
|
COMMUNITIES AND
COAL SOCIETY, VOTERS TAKING ACTION ON CLIMATE CHANGE, CHRISTINE DUJMOVICH
AND PAULA
WILLIAMS
|
|
Applicants
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA, VANCOUVER FRASER PORT AUTHORITY AND FRASER SURREY DOCKS
LIMITED PARTNERSHIP
|
|
Respondents
|
|
and
|
|
THE CITY OF NEW
WESTMINSTER
AND THE CITY OF
SURREY
|
|
Interveners
|
JUDGMENT AND REASONS
I.
Overview
[1]
The applicants consist of two community groups,
the Communities and Coal Society and Voters Taking Action on Climate Change,
and two individuals, Ms Christine Dujmovich and Ms Paula Williams.
Collectively, the applicants challenge two decisions of the respondent
Vancouver Fraser Port Authority approving a proposal from the other respondent,
Fraser Surrey Docks Limited Partnership, to construct a transfer coal facility
at a marine terminal in Surrey, BC. The facility would transfer coal
transported to the terminal by rail to barges or ocean-going vessels for
shipment to Asia.
[2]
The applicants contend that the Port Authority’s
decisions are invalid as they were made by the Port Authority’s CEO, not its
Board of Directors, and because no proper decision was made regarding the
potential environmental impact of the project. Further, the applicants maintain
that the decisions give rise to a reasonable apprehension of bias since the officers
and employees of the Port Authority were financially motivated to approve the
project, and because the Port Authority actually assisted Fraser Surrey Docks
in putting forward a favourable proposal. The applicants ask me to quash the
Port Authority’s decisions and order a reconsideration of the proposal.
[3]
I can find no basis for overturning the Port
Authority’s decisions – they were made fairly and lawfully, and untainted by a
reasonable apprehension of bias. I must, therefore, dismiss this application
for judicial review.
[4]
The parties also exchanged written motions
disputing the admissibility of information in their opponents’ affidavits.
Rather than argue those motions at the hearing, they agreed to present their
oral submissions on the main issues in this application based on the complete
record and leave it to me to decide the preliminary evidentiary motions based
on the written materials provided.
[5]
The issues are:
1.
Should all or part of the affidavits filed by
the parties be struck?
2.
Do the applicants have standing to bring this
challenge?
3.
Were the Port Authority’s decisions made fairly
and lawfully?
4.
Do the Port Authority’s decisions give rise to a
reasonable apprehension of bias?
5.
Is the permit issued by the Port Authority on
November 30, 2015 a nullity?
II.
Factual Background
[6]
In 2012, Fraser Surrey Docks applied for a
permit to build and operate a transfer coal facility in Surrey. Currently, the
location is used to ship grain, steel, and agricultural products. Fraser Surrey
Docks proposed to bring coal to the facility from the United States by rail,
then load the coal onto barges for shipment to Texada Island, where it would be
transferred to vessels bound for Asia.
[7]
The application underwent a review process at
the Port Authority pursuant to the Port Authorities Operations Regulations,
SOR/2000-55 (ss 5, 27) and the Canadian Environmental Assessment Act,
SC 2012, c 19 (s 67) [CEAA] (see Annex for all enactments cited). The review
process included consultations with community groups, First Nations, local
authorities, and municipalities. During the review, the applicants raised
concerns about the environmental impact of the project and the review process
itself.
[8]
The applicants also expressed an apprehension of
bias on the part of the Port Authority. Their concern arose from the fact that
the Port Authority actively collaborated with Fraser Surrey Docks to help
assure the success of the permit application, and to discount concerns raised
by opponents of the project.
[9]
In 2014, staff members at the Port Authority
prepared an Environmental Review Decision Statement in which they expressed
their conclusion that the project was unlikely to cause significant adverse
effects. They also issued a Project Review Report recommending approval of the
project. The Port Authority’s Project Review Committee then considered these
documents and other materials. The Vice President of Planning and Operations
for the Port Authority, Mr Peter Xotta, recommended approval of the project to
the Port Authority’s CEO, Mr Robin Sylvester. The CEO approved the project and
issued a permit to Fraser Surrey Docks on August 21, 2014. In 2015, at the
request of Fraser Surrey Docks, the Port Authority’s CEO amended the permit to
allow coal to be loaded onto ocean-going vessels.
III.
Issue One – Should all or part of the affidavits
filed by the parties be struck?
A.
The Respondents’ Motion
[10]
The Port Authority argues that the affidavits of
the applicants Christine Dujmovich and Paula Williams should be admitted solely
on the issue of standing. Their affidavits contain information about the
potential effect of the project, their involvement in the advocacy opposing the
issuance of the permits, and their concerns regarding the project’s impact.
[11]
Similarly, the Port Authority argues that the
affidavit of Kevin Washbrook, director of the applicant Voters Taking Action on
Climate Change, should be admitted solely on the issue of standing. His
affidavit describes the group’s mandate and activities, including its advocacy
in relation to the project in issue here.
[12]
Further, the Port Authority disputes the
admissibility of an affidavit tendered by Jeff Arason, Manager of the Utilities
Division in the Engineering Department at the City of Surrey, as improper
opinion evidence. In the same vein, the Port Authority argues that the
affidavit of Mehran Nazeman, the Building Division Manager in the Planning
Development Department of the City of Surrey, should also be struck.
[13]
Finally, the Port Authority contends that
certain exhibits attached to the affidavit of Alison Wold, an administrative
assistant employed by counsel for the applicants, that relate to the amended
permit issued in November 2015 should be struck because they are incomplete and
irrelevant.
[14]
I am satisfied that the affidavits of Christine Dujmovich,
Paula Williams, and Kevin Washbrook are admissible. As explained below, they relate
primarily to the question of standing but also provide background and context
that is helpful in understanding the process leading up to the issuance of the
permits and, to a limited extent, provide evidence that may be relevant to the
issue of bias.
[15]
With respect to the Arason and Nazeman affidavits,
I agree that a few passages in those documents contain opinions. The applicants
say that they were entitled to file opinion evidence to counter the opinions
offered in an affidavit of Timothy Blair, Senior Planner for the Vancouver
Fraser Port Authority (dated May 24, 2016). However, in granting the applicants
permission to file evidence responding to the Blair affidavit, Prothonotary
Martha Milczynski noted that much of that impugned affidavit did not contain
opinion at all; rather, it simply set out what was in the November 2015 permit
(Order of June 1, 2016). As such, I will disregard any opinions set out in the
Arason and Nazeman affidavits; it is unnecessary to strike them in their
entirety. While the remaining evidence in those affidavits was not before the
decision-maker, it describes the process leading up to the decisions in issue
here, and I will consider it solely for that purpose.
[16]
Regarding the Wold exhibits, I am satisfied that
they are admissible as part of the record relating to the issuance of the
amended permit in November 2015. While they may not represent the complete
record, that is not a basis for excluding them. I have not considered any
exhibits that are irrelevant.
[17]
Fraser Surrey Docks also filed objections to the
applicants’ evidence similar to those presented by the Port Authority. I have
not found it necessary to address those objections separately.
B.
The Applicants’ Motion
[18]
The applicants seek to strike an affidavit of
Timothy Blair dated March 1, 2016, or to strike out portions of that affidavit,
as well as parts of three other affidavits filed by the respondents – the
affidavit of Timothy Blair dated December 16, 2014, the affidavit of Jeff Scott
(President and CEO of Fraser Surrey Docks) dated December 17, 2014, the
affidavit of Peter Xotta (VP of the Port Authority) dated June 1, 2015.
[19]
The Port Authority does not rely on the Blair
affidavit of March 1, 2016, so I need not deal with that objection.
[20]
With respect to the Blair affidavit of December
16, 2014, the applicants say that it contains hearsay, argument, conclusions of
law, and inadmissible records that should be struck. Of the Scott affidavit,
the applicants allege hearsay, argument, and conclusions of law. The applicants
also contend that the Xotta affidavit contains argument and opinion.
[21]
In fact, the Blair affidavit of December 16,
2014 provides much of the record that was before the decision-maker in this
case. Prothonotary Milczynski referred to it as a “record
affidavit” (Order of June 1, 2016) and noted that the applicants had not
objected to it when it was filed. Nor did the applicants seek to cross-examine
Mr Blair in respect to any of the contents of his affidavit or the exhibits
attached to it. Further, the applicants have introduced many of the same
documents through the Washbrook affidavit. I see no basis for the applicants’ objections.
[22]
Regarding the Scott affidavit, I agree with the
applicants that some statements set out in it may be based on something other than
personal knowledge. However, I also note that Mr Scott’s impugned statements
are corroborated by other evidence in the record. Therefore, in my view, no
real purpose would be achieved in striking from Mr Scott’s affidavit
information that was not within his personal knowledge.
[23]
Finally, with respect to the Xotta affidavit, I
note that the applicants cross-examined Mr Xotta and challenged the statements
they found objectionable. In the circumstances, I would not strike the impugned
portions of Mr Xotta’s affidavit; rather, I would read them in light of the
full record, including his cross-examination.
IV.
Issue Two – Do the applicants have standing to
bring this challenge?
[24]
The Port Authority submits that the applicants
do not have standing to bring this challenge because they are not “directly affected by the matter in respect of which relief
is sought” (Federal Courts Act, s 18.1(1)). The Port Authority
says that the matter in respect of which relief is sought here is the
applicants’ technical attack on the decisions approving the project. It contends
that the applicants’ legal rights are not directly affected or prejudiced by
those narrow legal questions and, therefore, they have no standing to challenge
the Port Authority’s decisions.
[25]
In addition, the Port Authority suggests that while
the individual applicants, Ms Dujmovich and Ms Williams, may be concerned about
the existing level of commercial activity around the Fraser River that concern does
not necessarily amount to a direct impact on them flowing from the proposed
project.
[26]
In terms of potential public interest standing,
the Port Authority says that this application does not represent a reasonable
and effective means to bring the relevant issues before the Court (as in: Voters
Taking Action on Climate Change v British Columbia (Energy and Mines), 2015
BCSC 471). The interveners here, the municipalities of New Westminster and
Surrey, have a more tangible interest in the issues and are better placed to
address them, according to the Port Authority.
[27]
I disagree with the Port Authority on this
point. The applicants have standing to bring this application for judicial
review.
[28]
In her affidavit, Ms Dujmovich describes her
connection to the land adjacent to Fraser Surrey Docks and the rail tracks that
connect to the facility; she lives about a half kilometer from Fraser Surrey
Docks on land purchased by her grandfather in 1920. She has lived there most of
her life with her disabled brother, Gregory. Ms Dujmovich is concerned that the
transfer coal facility will cause detrimental health and environmental effects
due primarily to coal dust and diesel exhaust emitted along the route, but also
the broader effect on climate change brought about by burning coal as fuel. She
is also worried about other adverse consequences – noise and a reduction in
property values.
[29]
In addition, Ms Dujmovich describes in detail
the consultation process in which she and the Communities and Coal Society
participated. In particular, she describes a meeting in May 2013 at which she
spoke to the President of Fraser Surrey Docks, Mr Jeff Scott. After describing
to him her concerns about the dust generated at that site, Mr Scott, according
to Ms Dujmovich, assured her that her concerns would be addressed. However, a
few months later, Mr Scott told Ms Dujmovich that she must have misheard him
because he had not made any commitment to her on that issue.
[30]
(In his affidavit, Mr Scott specifically
addresses Ms Dujmovich’s suggestion that he reneged on his commitment to reduce
dust at Fraser Surrey Docks. He says that Ms Dujmovich must have misunderstood
his statement – he said that improvements were underway, but they were not
scheduled to be completed by the fall of 2013, as Ms Dujmovich may have
thought.)
[31]
The applicant Ms Paula Williams lives 300 metres
from the rail line. She has watched the rail traffic along the line closely,
especially cars carrying coal, and has measured the sound of train whistles.
[32]
Since she first learned about the project, Ms
Williams has been concerned about the health impact of transporting large
volumes of coal through her community and near her home. She is also worried about
the stability of the slopes the rail lines pass and the risk of mudslides
caused by heightened rail traffic. Based on her concerns, Ms Williams
co-founded Communities and Coal, which became involved in the process leading
to the issuance of a permit to Fraser Surrey Docks. Communities and Coal has
close to 300 supporters in the local area.
[33]
Ms Williams explains that the applicant
Communities and Coal’s main concern is the health impact of transporting coal
by rail. It drafted a petition in 2013 asking officials at the federal,
provincial, and municipal levels to carry out a comprehensive health impact
assessment of the project. The petition attracted 13,000 signatures.
Communities and Coal organized and participated in numerous events to
disseminate information and raise community awareness about the project.
[34]
Ms Williams personally reviewed many documents
regarding the potential health impacts of the project, which only reinforced
her concerns. She was not satisfied that the Environmental Impact Assessment
had fully considered the potential environmental impact of the project.
[35]
Mr Kevin Washbrook is the Director of the
applicant Voters Taking Action on Climate Change. His affidavit describes the
group’s mandate as advocating for the reduction of greenhouse gas emissions and
urging governments to restrict the use of fossil fuels. The group has been
involved in consultations on the Fraser Surrey Docks proposal since 2012. Mr
Washbrook describes the lengthy review process undertaken by the Port
Authority, his group’s role in it, and the group’s efforts to inform the public
about it.
[36]
Mr Washbrook also sets out the various documents
issued by the Port Authority when it granted Fraser Surrey Dock’s permit,
including the Project Review Report, the Environmental Review Decision
Statement, a Human Health Risk Assessment, a Public Comments Response
Memorandum, and a number of other informational documents.
[37]
In addition, Mr Washbrook describes some of the
industry organizations with which the Port Authority has been associated, and
provides information about the Port Authority’s executive compensation
arrangements. These factors caused his group to have concerns about bias and
fairness in the project review process, which they expressed to the Port
Authority by way of a series of letters.
[38]
The evidence shows that Ms Dujmovich and Ms
Williams are directly affected by the decisions in respect of which relief is
sought and, therefore, have standing to bring this application for judicial
review. They both live near the rail corridor through which the trains carrying
coal to the transfer facility will travel. The trains would pass by once or
twice a day, each with over a hundred open-topped cars. These applicants may be
exposed to an increase in coal dust, exhaust fumes, and noise.
[39]
Further, in my view, the two applicant community
groups have public interest standing according to the criteria articulated by
the Supreme Court of Canada in Canada (Attorney General) v Downtown Eastside
Sex Workers United Against Violence in Society, 2012 SCC 45 at para 37.
These applicants have raised serious issues, and have a genuine concern about
whether the Port Authority’s decisions were made fairly and lawfully, and about
the impact of those decisions on the local community environment. Both groups
have been actively involved in the process leading up to the Port Authority’s
decision to issue a permit to Fraser Surrey Docks. Their application for
judicial review represents a reasonable and effective way to bring the relevant
issues before the Court.
V.
Issue Three – Were the Port Authority’s
decisions made fairly and lawfully?
[40]
The applicants have not challenged the
reasonableness of the Port Authority’s decisions. However, they raise questions
about the manner in which the Port Authority rendered its decisions, namely:
•
Could the Port Authority delegate its
decision-making responsibility under the CEAA to the CEO?
•
If so, did it do so here?
•
If so, did the CEO make the determination
required under the CEAA?
[41]
The applicants assert that the Board of
Directors of the Port Authority, not the CEO, had an obligation to decide
whether to issue a permit and to determine the potential environmental impact
of the proposed project under the CEAA. They point to the Canada Marine Act,
SC 1998, c 10, which makes clear that the Port Authority can delegate powers to
manage its activities to a committee of directors or to its officers (s 21.1).
However, the CEAA contains no such power of delegation. Accordingly, say the
applicants, the Port Authority’s CEO did not have the power to make the CEAA
determination.
[42]
Further, the applicants maintain that the Port
Authority has not presented adequate proof that the Board of Directors authorized
the CEO to make the decisions in question, or that the required CEAA determination
was actually made.
[43]
I disagree.
[44]
As a federal authority, the Port Authority was
required to determine whether the project would be likely to cause significant
adverse environmental effects. It was not required to carry out a full environmental
assessment or issue a decision statement; that would have been necessary only
if the project was a “designated project” under
the CEAA.
[45]
The obligation under the CEAA fell to the Port
Authority itself, a federal Crown corporation, not to the Board of Directors. Accordingly,
the CEO had the authority to make the CEAA determination on behalf of the
corporation.
[46]
Further, the Port Authority was entitled to
delegate the CEAA determination to the CEO. If the proposal had related to a
designated project under the CEAA, the Port Authority would not have been
entitled to delegate to a corporate officer the determination about the
project’s likely environmental impact (ss 26(1), 27(1), 52(1)). However, the
statute erects no similar obstacle for non-designated projects, such as the one
here.
[47]
In addition, the Port Authority’s Board of
Directors had the statutory power to delegate the CEAA determination to the CEO
as an activity of the Port Authority (Canada Marine Act, s 21.1). The
Board of Directors can delegate to a corporate officer the power to “manage the activities” of the Port Authority.
[48]
The two intervening municipalities, Surrey and
New Westminster, submit that the phrase “manage the
activities” does not include making a determination under the CEAA because
the Port Authority is authorized under the Canada Marine Act only to
engage in “activities related to shipping, navigation,
transportation of passengers and goods, handling of goods and storage of goods”
(s 28(2)(a)). Accordingly, say the interveners, because there is no reference
to making environmental determinations within the list of authorized
activities, the Port Authority lacks the power to delegate those determinations
to an officer of the company.
[49]
I disagree with the interveners. I read the words
“manage the activities” of the Port Authority
broadly. I see no basis for excluding from them the responsibilities that fall
to the Port Authority under the CEAA.
[50]
In addition, I note that the Port Authority’s Letters
Patent set out a far more detailed list of activities than is contained in the Canada
Marine Act. The Letters Patent state specifically that the Port Authority
may carry out environmental assessments (s 7.1(j)(i)).
[51]
The interveners also point to the Letters
Patent, but for another purpose. They point out that the power to delegate
contained in s 21.1 of the Canada Marine Act is subject to the Letters
Patent and argue that the Letters Patent restrict that power of delegation.
[52]
Again, I disagree. The interveners rely on s
4.15 of the Letters Patent. That provision empowers the Board of Directors to
create committees and to delegate to those committees the powers held by the
Board itself (with some exceptions). The interveners rely on the fact that s
4.15 makes no reference to an authority to delegate to corporate officers to
argue that the statutory power of delegation must be read down accordingly.
However, the Letters Patent do not limit the power of the Board of Directors to
delegate to officers; they expand the power of the Board of Directors to
delegate to committees. Therefore, while the statutory power of delegation to
officers is, indeed, subject to the Letters Patent, there is nothing in the
latter that restricts the breadth of the former. The Port Authority could, and
in my view, the evidence shows that it did, delegate CEAA determinations to its
CEO.
[53]
At a special meeting of the Board of Directors
on August 19, 2014, the VP referred to the directors the Project Review
Committee’s report. The report recommended that the project be approved,
subject to 81 conditions that would serve to ensure that the project would be
unlikely to have significant adverse environmental effects. After the directors
discussed the issue, the CEO expressed his decision to approve the project.
That decision is recorded in the Minutes of the Board Meeting.
[54]
At the same meeting, the Board considered the
Environmental Review Decision Statement which discussed the potential
environmental impact of the project, and concluded that the proposed mitigation
measures and conditions in the permit made it unlikely that the project would
cause significant adverse environmental effects. The statement specifically
addressed the Port Authority’s responsibility under the CEAA and discussed the
various environmental concerns arising from the project and the views of
various stakeholders, including local authorities. The Board of Directors, with
the CEO present, considered both of these documents. The CEO expressed his
willingness to approve the project, and days later, issued his decision to
issue a permit to Fraser Surrey Docks. From these circumstances, one can reasonably
infer that the required determination had been expressly delegated to the CEO
by the Board.
[55]
In fact, the Board of Directors of the Port
Authority had already specifically delegated the power to issue environmental
authorizations to the CEO. In 2013, the Board passed a resolution delegating to
the CEO the authority “to issue environmental
authorizations pursuant to Environmental Policy B-007,” which expressly
addresses the Port Authority’s obligations under the CEAA.
[56]
The applicants point to other documents that
they characterize as inadequate indicators of the delegation to the CEO – the
Project Review Process Directive, the Guide to Project Review, and the
Environment Policy Appendix I. However, the fact that these documents do not
expressly address the subject of delegation is not proof that no delegation
occurred. I am satisfied on the evidence cited above that a delegation of the
CEAA determination was, in fact, made to the CEO.
[57]
The applicants also submit that the fact that
the CEO made a decision to issue a permit does not mean that he also made a
determination under the CEAA. While the permit itself makes no reference to that
determination, the process leading up to the CEO’s decision makes clear that
proper consideration was given to Port Authority’s obligations under the CEAA.
As mentioned, the CEAA’s requirements were expressly set out in the Port
Authority’s Environmental Policy, its Environmental Review Decision Statement,
the Project Review Report, and the VP’s report to the CEO. Further, the Board specifically
discussed the CEAA determination at its meeting on August 19, 2014. This
evidence satisfies me that the CEO would clearly have been aware of the requirements
of the CEAA at the time he considered whether to grant the permit. As
mentioned, the CEAA does not require any particular form of decision or
statement in respect of non-designated projects. Therefore, the fact that the
permit made no specific reference to the CEAA determination is not evidence
that the determination was never made. The overall circumstances indicate that
it was.
[58]
Indeed, as mentioned, the permit contains 81 conditions
aimed at mitigating the environmental impact of the project. These include numerous
measures addressing general environmental conditions: protection of vegetation,
fish, and wildlife; spill prevention; sediment and erosion control;
preservation of water, soil, and groundwater quality; protection of air
quality; noise reduction; and disposal of debris and waste materials.
[59]
Accordingly, I find that the Port Authority’s
decision to issue a permit to Fraser Surrey Docks was lawful and made fairly.
VI.
Issue Four – Do the Port Authority’s decisions
give rise to a reasonable apprehension of bias?
[60]
The applicants point to a total of five factors
that they say support their accusation that the Port Authority’s conduct gives
rise to a reasonable apprehension of bias. First, the applicants suggest that
the CEO and VP had a pecuniary interest in approving the project. Second, they
contend that the Port Authority’s institutional structure created an
environment in which employees had an incentive to approve projects. In respect
of these first two grounds the applicants rely on Justice Iacobucci’s comments
on this issue in Pearlman v Manitoba Law Society, [1991] 2 S.C.R. 869, at p
883:
There are many different factual settings
which could place the impartiality of a decision-making body in question. Among
such contexts are situations where the decision-makers have or are perceived to
have a pecuniary interest, either direct or indirect, in the outcome of the
hearing before them.
[61]
Third, the applicants say that the Port
Authority had an ongoing relationship with the coal industry, including
sponsorship of a conference of the Coal Association of Canada. Fourth, the
applicants point to the Port Authority’s close collaboration with Fraser Surrey
Docks in the prosecution of its permit application. Fifth, the applicants cite
the Port Authority’s failure to respect its own Code of Conduct, which obliges
it to promote public confidence in its integrity and impartiality. I will
address each of these allegations in order.
[62]
The applicants rely heavily on the fact that the
CEO and VP of the Port Authority are granted bonuses based on their individual
performances measured against certain predetermined objectives. For the CEO,
those objectives included expanding the Port’s capacity, developing new
facilities, and meeting the capacity requirements of users, including the coal
industry. Clearly, approval of the transfer coal facility would have advanced
those objectives. Similarly, the VP’s personal objectives included delivering
key approvals to advance the Port Authority’s interests. In addition, both the
CEO and VP received bonuses for improving relations with customers, which would
include Fraser Surrey Docks. Bonuses were payable, however, only when the Port
Authority achieved a Threshold Net Income. Therefore, increasing the revenues
of the Port Authority by approval of projects such as the one proposed by
Fraser Surrey Docks might also increase the likelihood of bonuses being paid
out.
[63]
In my view, these circumstances are not
sufficient to give rise to a reasonable apprehension of bias. The Port
Authority’s overall executive compensation scheme does not reward project
approvals directly. The suggestion that approval of the Fraser Surrey Docks’
project would generate future bonuses for senior executives is entirely speculative.
[64]
The Port Authority’s compensation program
rewards both individual performance and corporate performance as measured
against corresponding objectives. Approval of the project in issue here was
neither an individual nor a corporate objective during the relevant time-frame.
However, delivery of a decision on the Fraser Surrey Docks project was part of
the VP’s Performance Plan for corporate planning and development for 2013; he
would have been rewarded even if the project had not been approved, since the
stated objective was to realize a decision, not an outcome. Further, this
category of the Performance Plan made up only 10% of the overall bonus
calculation, included numerous other ongoing projects, and was subject to
approval by the Board of Directors. The Fraser Surrey Docks permit decision,
either approval or denial, might have resulted in a bonus to the VP of roughly
1% of his salary in 2013. However, the decision was not rendered until 2014
and, in that year, the VP’s Performance Plan did not include an objective
relating to project decisions, although it did refer to advancement generally
of the gateway objectives of the Port, which presumably would have been enhanced
by the project. But that, again, is no more than speculation.
[65]
As for the CEO’s performance plan, there was no
stated objective relating to project approvals for 2013 or 2014. The CEO’s plan
for 2014 did include handling of challenging public engagement issues, which
would have included shepherding the Fraser Surrey Docks file to a conclusion.
[66]
In my view, this evidence does not indicate that
the senior executives at the Port Authority had a direct or tangible financial
interest in approving the project. Any pecuniary interest that the officers have
been alleged to have “is far too attenuated and remote
to give rise to a reasonable apprehension of bias” (Pearlman,
above at p 891).
[67]
Regarding the Port Authority’s institutional
structure, the applicants contend that the bonus program applicable to all
staff created a reasonable apprehension of bias because it rewarded those
involved in approving projects that could improve the Port Authority’s economic
performance. The potential for financial gains, say the applicants, would
likely predispose Port Authority employees to exercise any discretion available
to them to push through projects with potential economic value to their
employer.
[68]
Again, the potential for financial gains on the
part of employees as a whole is speculative. The employee bonus program
recognized many different factors, including corporate performance, threshold
corporate income, personal performance targets, and the discretion of the Board
of Directors. It is true that no bonuses would have been paid if the Port
Authority had not achieved sufficient financial success in a given year.
However, in my view, that factor alone cannot be enough to establish that the
Port Authority’s personnel as a whole were biased towards approving lucrative
projects, including the Fraser Surrey Docks project specifically, or even to
support a reasonable apprehension of bias. There were simply too many other
factors in play.
[69]
The applicants also submit that the Port
Authority’s close relationship with the coal industry raises a reasonable
apprehension of bias in favour of approving coal-related projects, such as the
Fraser Surrey Docks proposal. Similarly, when she attended the May 2013
meeting, Ms Dujmovich thought that the Port Authority and Fraser Surrey Docks
might be a single entity since they both spoke in favour of the project.
[70]
The Port Authority is a member of the Coal
Association of Canada and helped sponsor a conference organized by that
association. When the sponsorship arrangement became publicly known, the Port
Authority realized that the optics of its relationship with the association was
a problem; it spent $3,000.00 to have its name removed from conference
materials.
[71]
In respect of this allegation, as well as the
others addressed above, the nature of the Port Authority must be kept in mind
when considering whether its conduct gave rise to a reasonable apprehension of
bias. It must be remembered that the question of bias in respect of a member of
a court of justice cannot be examined in the same light as that relating to a
member of an administrative tribunal who is entrusted by statute with an
administrative discretion, which must be exercised based on experience and technical
advice. (Committee for Justice and Liberty v National Energy Board,
[1978] 1 S.C.R. 369 at p 395).
[72]
The Port Authority is a corporation with a
statutory mandate to provide the marine infrastructure that Canada requires, to
promote successful use of ports to advance Canada’s economic interests, to provide
safe and environmentally sound facilities, and to manage marine assets in a
commercial manner with input from users and community members (Canada Marine
Act, s 4). These roles necessarily require the Port Authority through its
officers and employees, to sustain relationships with user groups and
individual tenants, including the coal industry generally and Fraser Surrey
Docks specifically.
[73]
In that context, I do not regard the Port
Authority’s membership in the Coal Association of Canada or even its
sponsorship of a conference as evidence of actual bias or even a reasonable
apprehension of bias. Rather, it is inherent in the nature of the Port
Authority’s statutory responsibilities for it to foster these kinds of contacts
and relationships.
[74]
Similarly, I cannot conclude that the Port
Authority’s ongoing communications with Fraser Surrey Docks, or even its
expressed support for the project, supports the applicants’ allegations of bias.
The evidence shows that there was contact between the two entities, including
expressions of confidence by the Port Authority that the project would ultimately
be approved and that the concerns of opponents would be overcome. At face
value, these communications do not strike me an indicative of prejudgment or
bias. They simply reflect preliminary opinions about the nature of the project
and the likelihood that concerns about its environmental impact could be
mitigated. In that vein, the fact that Ms Dujmovich thought that the Port Authority
and Fraser Surrey Docks were a single entity because they both spoke in favour
of the project does not persuade me that the Port Authority was biased or that
a reasonable apprehension of bias arises from these circumstances. The Port
Authority’s posture was consistent with its statutory mandate and its duty to provide
responsible stewardship of Canada’s marine infrastructure.
[75]
Finally, the applicants maintain that the
conduct of the Port Authority’s directors, officers, and personnel violated the
applicable codes of conduct. The Code of Conduct for directors and officers
requires them to behave in a manner that would preserve and promote public
confidence and trust in the integrity and impartiality of the Port Authority.
The Code of Ethical Conduct Policy applicable to employees exhorts them to
avoid behaviour that would put their total objectivity in doubt. The applicants
point to the allegations I have described above and contend that they support a
finding that a breach of ethical standards has taken place.
[76]
Given my conclusions that the impugned conduct
of the Port Authority’s directors, officers, and employees does not support a
finding of bias or of a reasonable apprehension of bias, it follows that I
cannot conclude that the codes of conduct were violated.
VII.
Issue Five – Is the permit issued by the Port
Authority on November 30, 2015 a nullity?
[77]
The applicants maintain that the November 30,
2015 permit represented a minor amendment to the earlier permit, not a new permit.
Most of the conditions in the original permit were maintained; only 18
amendments were made. Therefore, the issues of jurisdiction and bias that
tainted the original permit were not cured by the issuance of a second one. The
problems with the first permit rendered it void, say the applicants, so the
second permit, issued in reliance on the first, must be considered a nullity.
[78]
In support of the applicants’ position, Mr
Arason describes in his affidavit the City of Surrey’s involvement in the
project review process and the correspondence exchanged between the City and
the Port Authority over the years. He also describes the amended permit of
November 30, 2015 and characterizes the review process leading up to the
issuance of that permit as “very narrow in scope”
and “of a very short duration,” with “limited stakeholder consultation.” In his view, based
on the numbering given to the amended permit (2012-072-1) as compared to the
original permit (2012-072), the original permit remains in force; the November
30, 2015 merely makes minor modifications to the original. Mr Arason relies on
the following statements set out in the amended permit:
Where conditions have been amended from
project permit 2012-072, the original condition has been struck, and replaced by
the amended version shown here in italics. Two conditions have been removed, 14
amended and two conditions added at the end of the document. This amended
project permit therefore replaces the previously issued document.
[79]
Mr Arason interprets this statement as meaning
that the amended permit is a consolidation of the original permit along with
the approved modifications. The amended permit should not, therefore, be
regarded as a fresh permit. Mr Nazeman agrees with Mr Arason’s interpretation.
[80]
I disagree.
[81]
The second permit, by its express terms, clearly
replaced the first. Also, the first permit was valid on its face and
enforceable until struck down. Further, given my conclusions on the validity of
the first permit, it follows that the second permit was not tainted in any way.
[82]
Therefore, there is no legal or factual basis for
the applicants’ claim that the amended permit of November 30, 2015 is a
nullity.
VIII.
Conclusion and Disposition
[83]
The applicants have standing to bring this
application for judicial review. However, I cannot conclude that the decision
granting Fraser Surrey Docks a permit for its transfer coal facility was
unfairly made or otherwise unlawful. I can find no evidence supporting a
reasonable apprehension of bias on the part of the Port Authority or its
personnel. Finally, the amended permit issued by the Port Authority in November
2015 is valid. Accordingly, I must dismiss the applicants’ application for
judicial review, with costs.
Email this Content