Dockets: A-321-19 (lead file),
A-323-19, A-324-19, A-325-19,
A-326-19, A-327-19
Citation: 2019 FCA 239
Present: STRATAS J.A.
| BETWEEN:
|
| CHIEF RON IGNACE and CHIEF ROSANNE CASIMIR, on their own behalf and on behalf of all other members of the STK’EMLUPSEMC TE SECWEPEMC of the SECWEPEMC NATION, UPPER NICOLA BAND, COLDWATER INDIAN BAND, SQUAMISH NATION, TSLEIL-WAUTUTH NATION, AITCHELITZ, SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN, YAKWEAKWIOOSE
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| Applicants
|
| and
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| ATTORNEY GENERAL OF CANADA, TRANS MOUNTAIN PIPELINE ULC and TRANS MOUNTAIN CORPORATION
|
| Respondents
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| and
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| ATTORNEY GENERAL OF ALBERTA
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| Intervener
|
REASONS FOR ORDER
STRATAS J.A.
[1]
On September 4, 2019, this Court granted leave to six sets of parties to start applications for judicial review challenging the Governor in Council’s approval of the Trans Mountain pipeline expansion project.
[2]
The Court’s order granting leave restricted the applications to three questions:
1.
From August 30, 2018 (the date of the decision in Tsleil-Waututh Nation) to June 18, 2019 (the date of the Governor in Council’s decision) was the consultation adequate in law to address the shortcomings in the earlier consultation process that were summarized at paras. 557-563 of Tsleil-Waututh Nation, 2018 FCA 153? The answer to this question should include submissions on the standard of review, margin of appreciation or leeway that applies in law.
2.
Do any defences or bars to the application apply?
3.
If the answers to the questions 1 and 2 are negative, should a remedy be granted and, if so, what remedy and on what terms?
(Court’s Order of September 4, 2019; see also Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224)
[3]
Within a week of the order granting leave, Tsleil-Waututh Nation filed a notice of application for judicial review raising these issues. But it raised at least seven others that go beyond the restrictions in the order granting leave: see submissions of the Attorney General of Canada at p. 3. The Trans Mountain respondents submit that when the issues are broken out fully, Tsleil-Waututh Nation raised more than sixty issues—not three.
[4]
Because of this, the Registry referred the notice of application to the Court for review under Rule 74. Under Rule 74, a document in the Court file that violates an order of the Court can be removed from the file. If, as here, the document is an originating document and the originating document is removed from the file, there is nothing left in the file and so the file must be closed. As a practical matter, the proceeding is terminated.
[5]
Acting under Rule 74(2) and in accordance with procedural fairness, the Court notified Tsleil-Waututh Nation that the Court apprehended that its notice of application for judicial review went beyond the restrictions in the Order granting leave. The Court gave it and the other parties an opportunity to make submissions.
[6]
Having read and considered the parties’ submissions, the Court concludes that Tsleil-Waututh Nation has violated the Order granting leave. The violation is serious and deliberate. An order must be issued addressing this violation.
A.
A preliminary issue: the judge determining this matter
[7]
Tsleil-Waututh Nation submits that a panel of judges should be assigned to decide this matter. Further, it submits that I should not be on that panel.
[8]
The Chief Justice has the exclusive power to assign judges to matters: Courts Administration Service Act, S.C. 2002, c. 8, ss. 8(1) and 8(2); Federal Courts Act, R.S.C. 1985, c. F-7, ss. 15(2) and 16(2). Subject to certain restrictions in section 16 of the Federal Courts Act, none of which apply here, he also has the exclusive power to decide whether a single judge or a panel of judges should hear a matter. A judge assigned to a matter, whether alone or as one of three judges, must carry out the assignment unless there is a legal reason to recuse.
[9]
Exercising his powers, the Chief Justice has assigned me to determine this matter. Applying the test recently summarized by this Court in Fabrikant v. Canada, 2018 FCA 224 at para. 14, I see no legal reason to recuse myself from this matter. The comments made at paras. 15-16 of Fabrikant apply equally here.
[10]
Tsleil-Waututh Nation points out that I was the judge who decided the leave motions in Raincoast Conservation and issued the Order. It says that in this matter, I am now sitting on appeal from my own Order, contrary to subsection 16(4) of the Federal Courts Act and the principles of natural justice. It adds that I am functus officio and cannot revisit the Order.
[11]
I am neither sitting on an appeal from my Order nor revisiting it. My task is to decide whether the notice of application for judicial review violates the restrictions in the Order. In that task, I must take the Order and the restrictions in it as they are and as valid.
[12]
Tsleil-Waututh Nation says I have prejudged the outcome of this Rule 74 review. It alleges I am biased. It relies upon directions I issued in which I expressed my concern that Tsleil-Waututh Nation’s notice of application was contrary to the restrictions in the Order granting leave.
[13]
I have not prejudged this review. I am not biased. I confirm that I have been open-minded and persuadable on all issues throughout. This should be apparent, in part, from the care taken in these reasons to deal with the issues and the fact that, in the end, I have ordered a remedy similar to that proposed by Tsleil-Waututh Nation.
[14]
Tsleil-Waututh Nation overlooks how judges have to proceed in a review under Rule 74. Judges start by disclosing to affected parties why a document might have to be removed from the court file. This allows the parties to know the case to meet and to make informed, focused submissions in response. When judges do this, they have an apprehension that there may be a problem. But they suspend their judgment because, after all, the parties’ submissions may alleviate or eliminate their apprehension.
[15]
In this case, I reviewed the notice of application for judicial review and formed an apprehension that it was inconsistent with the Order. I disclosed this apprehension to Tsleil-Waututh Nation along with my understandings and assumptions about the law so it could make submissions on the apprehension, disabuse me of my understandings and assumptions if they were wrong, and offer views on the issue of remedy. In hearings, judges often put propositions to counsel setting out their understandings and assumptions, rather than keeping them secret, in the hope that they will receive full submissions in response. Far from being evidence of prejudgment or bias, this enhances procedural fairness and increases the likelihood of decisions based on a correct view of the law.
[16]
Alleging bias is “a serious step that should not be taken lightly”
: R. v. S.(R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193 at para. 113. Wholly unsubstantiated allegations of the sort made here “[call] into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice”
: ibid. Only a “serious”
and “substantial”
demonstration made by “convincing evidence”
can reverse the strong presumption that judges will carry out their duties properly and with integrity: ibid. at paras. 31, 112-13; R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259.
[17]
Here, the allegations of bias fall way short of the mark and never should have been made, especially by a sophisticated party represented by experienced counsel. In some circumstances, making such allegations can be an abuse of process that can expose a party to the dismissal of its proceedings: McMeekin v. Canada (Human Resources and Skills Development), 2011 FCA 165 at para. 32; Abi-Mansour v. Canada (Aboriginal Affairs), 2014 FCA 272 at para. 12. The consequences of Tsleil-Waututh Nation’s allegations of bias will be considered at the end of these reasons along with its violation of the Court’s order granting leave.
B.
The Court’s review under Rule 74
[18]
In its application for judicial review, Tsleil-Waututh Nation alleges, among other things, that the Government of Canada has violated the Court’s ruling in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 concerning what it must do to fulfil its obligations to consult with Indigenous peoples. Canada, it suggests, must not be allowed to get away with it. Yet in this Rule 74 review, the thrust of Tsleil-Waututh Nation’s submissions is that it is just fine for it to violate the Court’s ruling in Raincoast Conservation that restricted the issues that it can raise on judicial review. The irony is not lost on the Court.
[19]
Tsleil-Waututh Nation readily admits that its application for judicial review raises issues prohibited by the order granting leave. It wants its application for judicial review to be viewed as an appeal from this Court to this Court—even though it is not an appeal, and even though an appeal does not lie. Regardless of whatever it wants, the fact remains: its application for judicial review violates the order granting leave.
[20]
Tsleil-Waututh Nation submits that the plenary or inherent powers of this Court permit it to hear an appeal from this Court’s ruling in Raincoast Conservation. Indeed, this Court has plenary powers: see, e.g., Lee v. Canada (Correctional Service), 2017 FCA 228 at paras. 7-12. But they do not extend to the creation of appeal rights.
[21]
Rights to appeal are never inherent or unwritten. Instead, impliedly or expressly, they must be authorized by legislation: Kourtessis v. Minister of National Revenue, [1993] 2 S.C.R. 53, 102 D.L.R. (4th) 456 at 69 S.C.R., 464 D.L.R.; Canada (Attorney General) v. 311165 B.C. Ltd., 2011 BCCA 409, 286 C.C.C. (3d) 474 at para. 7. In this case, there is no implied or express authorization of any appeal from an order of this Court to this Court, or from a single judge of this Court to a three-person panel of this Court. There is no such thing in the Federal Courts Act and the Federal Courts Rules, or in any other legislation for that matter.
[22]
In support of its submission that it can appeal the order granting leave, Tsleil-Waututh Nation invokes the gap rule in the Federal Courts Rules (Rule 4), and the case of Society of Composers, Authors and Music Publishers of Canada v. 960122 Ontario Ltd., 2003 FCA 256, 26 C.P.R. (4th) 161, where this Court referred to Rule 4 and recognized a right of appeal to it from Federal Court referees.
[23]
Rule 4 allows this Court to provide for a procedural matter not provided for in the Rules or an Act of Parliament by analogy to the Rules or the procedural rules of the province to which the subject-matter of the proceeding most closely relates.
[24]
Given the principle that only legislation, not courts, can create appeal rights, it is not open to this Court to use Rule 4 to create appeal rights out of thin air. As for the Society of Composers case, it tells us how, as a matter of interpretation, an existing legislative provision can implicitly authorize appeal rights. In Society of Composers, the Court had before it Rule 159(1) which places referees on a footing similar to Federal Court judges, s. 27 of the Federal Courts Act which sets out appeal rights from Federal Court prothonotaries and judges to this Court, and a decision of a referee who was a Prothonotary. Appeal rights were not created out of thin air.
[25]
Tsleil-Waututh Nation also submits that a three-person panel of this Court can always reverse a “miscarriage of justice”
caused by a single judge’s interlocutory order. This submission is sunk by the principle that appeals are authorised only by legislation. As well, if this submission were accepted, a party could file a notice of appeal against any adverse decision at any time in any circumstance whatsoever: all it has to do is pick up a megaphone and shout “miscarriage of justice”
.
[26]
Tsleil-Waututh Nation overlooks that a single judge making an order under this legislative scheme makes an order of the Court: National Energy Board Act, R.S.C. 1985, c. N-7, as amended, para. 55(2)(c). Once the Court—whether it be a single judge or a three-person panel—has made an order, the general rule is that it is final. The only exceptions are the narrow recourses for variation, reconsideration or setting aside (for example, for fraud) under Rules 397-399.
[27]
This Court never sits in appeal of itself. The only recourse for a party that considers an order to be wrong or a “miscarriage of justice”
is to seek leave to appeal to the Supreme Court of Canada under section 40 of the Supreme Court Act, R.S.C. 1985, c. S-26.
[28]
Tsleil-Waututh Nation raises the obiter comment in paragraph 4 of Abi-Mansour, above about hearing panels sometimes being able to interfere with the orders of single judges.
[29]
This Court, sitting as a panel of three in an appeal or an application, in rare circumstances, can make an order that, as a practical matter, reverses or varies an interlocutory order. This is the essence of the comment in Abi-Mansour. But when the Court does this, it is not exercising appellate jurisdiction over an interlocutory order. Nor is it acting, as Tsleil-Waututh Nation says, to redress a “miscarriage of justice”
—a slippery phrase whose meaning is in the eye of the beholder. Rather, the Court is responding to new circumstances or is accepting an invitation, implied or express, to act. For example, in some cases a hearing panel may legitimately interpret a single judge’s order as impliedly permitting it to act when warranted by the circumstances. Evidence ruled inadmissible by a single judge in a motion may later be admitted because of circumstances existing at the hearing of the merits. A ruling of a single judge about procedures to be followed at an upcoming hearing can be varied where the hearing panel, always in charge of hearing procedures, considers it appropriate.
[30]
This case is different. As explained in Raincoast Conservation (at paras. 9-16), in section 55 of the National Energy Board Act Parliament intended this Court to carry out a once-and-for-all “gatekeeping”
function when it determines leave motions, to ensure that only fairly arguable issues are litigated. Under this legislative scheme, Parliament did not intend that all issues raised in a leave motion, perhaps sixty of them, should go forward when only three are “fairly arguable”
.
[31]
To be sure, Parliament can and sometimes does adopt a different approach in order to further different purposes. An example of this is section 58 of the Department of Employment and Social Development Act, S.C. 2005, c. 34, the provision that governs applications for leave to appeal from the General Division of the Social Security Tribunal to the Appeal Division. There, leave is an all-or-nothing proposition: either all the issues in the application get leave or none do: Hillier v. Canada (Attorney General), 2019 FCA 44, 431 D.L.R. (4th) 556.
[32]
Unless legislation says otherwise, as in Hillier, courts can screen out issues of insufficient merit in the leave-granting process: MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, 27 D.L.R. (4th) 321 at p. 508 S.C.R., p. 358 D.L.R., R. v. Wigman, [1987] 1 S.C.R. 246, 38 D.L.R. (4th) 530 and R. v. Keegstra, [1995] 2 S.C.R. 381, 124 D.L.R. (4th) 289; and see, e.g., Leroux v. TransCanada Pipelines Ltd. (1996), 198 N.R. 316 (F.C.A.), Rutherford v. Husky Oil Operations Limited, 2014 SKCA 118 at paras. 26-27 and Fort MacKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14 at paras. 59-60.
[33]
Tsleil-Waututh Nation complains that the Court has “ignored”
the arguments it now advances in its application for judicial review. Its tone suggests negligence and a lack of diligence on the part of the Court.
[34]
Far from being ignored, many of these arguments have been carefully considered, sometimes repeatedly, accompanied by detailed reasons. Other arguments were found on the leave motion to be not fairly arguable, again with detailed reasons.
[35]
Tsleil-Waututh Nation’s reassertion of these arguments in its application for judicial review violates the order granting leave and is an abuse of process. This abuse of process factors into the Court’s remedial discretion under Rule 74, as discussed later in these reasons. Describing a couple of examples of what Tsleil-Waututh Nation is attempting to do sheds light on the nature and significance of this abuse of process.
[36]
Tsleil-Waututh Nation argues that deficiencies in the environmental assessment process before the National Energy Board should be addressed by an immediate judicial review, not left to a later, general judicial review of the Governor in Council’s decision at the end of the entire process. This Court has considered and rejected this argument multiple times because this particular legislative regime is not designed to permit a series of piece-meal judicial reviews. This renders cases under different legislative regimes irrelevant. Multiple times, the Supreme Court has dismissed leave to appeal from these rulings. See Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418 at paras. 119-127, leave to appeal to SCC refused, 37201 (9 February 2017); Tsleil-Waututh Nation, above at paras. 173-203, leave to appeal to SCC refused, 38379 (2 May 2019); Raincoast Conservation, above. These authorities also clearly and repeatedly reject the proposition—one that Tsleil-Waututh Nation wishes to advance once again in its notice of application for judicial review—that flaws in the National Energy Board’s environmental assessment process and resulting report, including failures to follow statutory requirements, automatically invalidate the Governor in Council’s decision. There are many other examples.
[37]
Tsleil-Waututh Nation advances other arguments against the order granting leave: it “usurp[s] the proper role of the [environmental assessment] panel”
, “eviscerate[s]”
many “fundamental tenets of administrative law,”
“pays no heed”
to those tenets, “permits the [Governor in Council] to ignore the law”
and “insulate[s]”
the Governor in Council and the National Energy Board “from judicial scrutiny into the lawfulness of their actions”
. An appeal from the order granting leave does not lie to this Court and so these arguments are not maintainable in this Court. Tsleil-Waututh Nation is free to advance them in an application for leave to appeal to the Supreme Court.
[38]
It is unclear whether Tsleil-Waututh Nation seeks to vary the order granting leave. Some of its materials state that they are filed in support of a motion for variation. But nowhere does Tsleil-Waututh Nation discuss whether variation can be had in these circumstances under Rule 399. Variation is not among the relief sought at the conclusion of its submissions.
[39]
In any event, nothing Tsleil-Waututh Nation has raised in its submissions could possibly support a variation of the order granting leave. This relief is available only in the case of ex parte orders (Rule 399(1)(a)), serious procedural irregularities (Rule 399(1)(b)), the discovery of a matter arising after the making of the order (Rule 399(2)(a)), or fraud (Rule 399(2)(b)). None of these circumstances is present here. Variation under Rule 399 is not an avenue of appeal: Procter & Gamble Pharmaceuticals Canada Inc. v. Canada (Minister of Health), 2003 FC 911, 238 F.T.R. 215 at para. 17.
C.
Remedy
[40]
The Attorney General of Canada submits that the Court should order the notice of application removed from the court file under Rule 74. He adds that Tsleil-Waututh Nation should be given one day to file an amended notice of application and the respondents two days to make submissions on whether the amended application complies with the Order granting leave.
[41]
The Trans Mountain respondents similarly submit that the notice of application for judicial review should be removed from the court file under Rule 74. But they go further. They submit that Tsleil-Waututh Nation should not be given an opportunity to refile its application. They suggest this is a proper response to a severe abuse of process and deliberate violation of a court order.
[42]
Tsleil-Waututh Nation asks that the Court permit it to amend its notice of application for judicial review under Rule 75. But it has not moved for that relief. Nor has it submitted its proposed amendments for the Court’s consideration. Given the “highly expedited”
manner in which the challenges to the Governor in Council’s approval of the pipeline project are to proceed (see Raincoast Conservation at para. 76), its inaction is mystifying.
[43]
Three considerations affect the Court’s remedial discretion.
[44]
First, the removal of the notice of application for judicial review under Rule 74 would not be a ruling on the merits of the judicial review. In legal parlance, there would be no res judicata. Provided that Tsleil-Waututh Nation acted quickly, it could file another, corrected, application for judicial review.
[45]
Second, violation of a court order, particularly the sort of deliberate, defiant violation we have here, is most serious. It is an attack on the rule of law. It some circumstances it can constitute contempt of court and be punishable by some of the toughest sanctions known to our law. The seriousness is compounded by Tsleil-Waututh’s penchant for relitigation and its unmeritorious attack on the impartiality of the Court, two further abuses of process. But remedies for abuse of process should be aimed at redressing the abuse, not punishing the transgressor, no matter how substandard its conduct may be: see, e.g., R. v. Carosella, [1997] 1 S.C.R. 80, 142 D.L.R. (4th) 595. The Court agrees with the Trans Mountain respondents that Tsleil-Waututh Nation’s conduct is worthy of denunciation. But preventing it from challenging the Governor in Council’s decision seems, at this time, excessive. Depending on what happens later, this assessment could change.
[46]
Third, this is a Rule 74 review. In terms of remedy, Rule 74 is limited: it provides only for the removal of a document from the court file. But under Rule 55, the Court may vary a rule in “special circumstances”
. Through this mechanism, other remedies may be available in a Rule 74 review.
[47]
“Special circumstances”
are present here. Five other applications for judicial review of the Governor in Council’s decision are before the Court. On September 20, 2019, this Court made a procedural and scheduling order governing them. That order expedites and consolidates the applications and sets short timelines for the pre-hearing procedures, all to further the public interest in having the matter determined quickly.
[48]
In these circumstances, the public interest is paramount. One way or the other, the parties in the consolidated proceedings—to say nothing of a good chunk of the population of Canada—await this Court’s ultimate verdict. A verdict is urgently needed.
[49]
Removing Tsleil-Waututh Nation’s notice of application from the court file and closing the court file would set in motion a complicated, potentially time-consuming chain of events that could undercut the objectives of the procedural and scheduling order, causing delay and frustrating the public interest. First, the procedural and scheduling order would have to be amended to remove Tsleil-Waututh Nation from the consolidated proceedings. Tsleil-Waututh Nation would then be able to start a new application for judicial review. The Court would then have to scrutinize the new notice of application to ensure it complies with the September 4, 2019 Order. It may be necessary to invite and consider submissions on that point. If the new application is compliant, Tsleil-Waututh Nation would have to bring a motion to consolidate its application for judicial review with the consolidated proceedings. Additional time may be required to receive submissions on that. Delays in the filing of evidence in the consolidated proceedings may result, ultimately pushing back the hearing of this matter, currently scheduled for the week of December 16, 2019.
[50]
These special circumstances warrant varying Rule 74 to allow for a different remedy: Tsleil-Waututh Nation should be given an opportunity to file an amended notice of application for judicial review that complies with the restrictions in the order granting leave. This will reduce the need for other parties to file multiple sets of submissions and, as long as the amended notice of application is compliant, will allow Tsleil-Waututh Nation to participate in the consolidated proceedings. The Court will impose tight timelines on this process, along the lines suggested by the Attorney General of Canada.
[51]
In the future, if Tsleil-Waututh Nation is dissatisfied with an order, it must appeal it by following proper, legislative avenues or make use of the narrow recourses in Rules 397-399. Defiance is not an option. Nor is relitigation.
D.
Squamish Nation
[52]
Late in this process, Squamish Nation filed submissions adopting those of Tsleil-Waututh Nation. It concedes that its notice of application for judicial review also raises issues restricted by the order granting leave. Its notice of application is not as badly out of compliance as that of Tsleil-Waututh Nation. Nevertheless, its notice must also be brought into compliance. The public interest in expedition requires that it do so on the same timelines as Tsleil-Waututh Nation.
E.
Disposition
[53]
The Court will order that:
Within one day (by 4 pm PDT on Thursday, September 26, 2019) Tsleil-Waututh Nation and Squamish Nation shall each file an amended notice of application for judicial review that complies with the restrictions in the order granting leave;
All other parties may file representations by 10 am PDT on Monday, September 30, 2019 on whether the amended notices of application comply with the restrictions in the order granting leave;
Tsleil-Waututh Nation and Squamish Nation may each file a reply by noon PDT on Tuesday, October 1, 2019;
Service shall be performed in accordance with the procedural and scheduling order dated September 20, 2019 and filing shall be made by delivering to the email address in that order;
The Court remains seized with this matter to deal with the amended notices of application for judicial review and to make any further order necessary in the circumstances, especially if the amended notices of application for judicial review do not comply with the restrictions in the order granting leave;
The timelines set out in the Court’s procedural and scheduling order of September 20, 2019 remain in effect.
[54]
The Trans Mountain respondents did not request costs. The Attorney General of Canada requests its costs of this Rule 74 review payable forthwith in any event of the cause. Its costs are attributable to the submissions of Tsleil-Waututh Nation, not the brief, late submissions of Squamish Nation. Thus, I will order costs to the Attorney General in the fixed amount of $2,000, all-inclusive, payable by Tsleil-Waututh Nation forthwith in any event of the cause.
“David Stratas”
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