Date: 20220609

Docket: T-228-21

Citation: 2022 FC 849

Ottawa, Ontario, June 9, 2022

PRESENT: The Honourable Mr. Justice Mosley

BETWEEN:

CITIZENS AGAINST RADIOACTIVE NEIGHBOURHOODS

Applicant

and

BWXT NUCLEAR ENERGY CANADA INC

Respondent

JUDGMENT AND REASONS

I. Overview

[1] This is a case where community interests are in conflict with those of a business subject to a regulatory regime designed to protect the public. The question before the Court is whether the regulatory body responsible for administering the regime failed to discharge its duties properly in rendering a decision about the operations of the company. The test the Court must apply is not whether the Court agrees with the decision but whether it met the legal standard of reasonableness.

[2] The Applicant, Citizens Against Radioactive Neighbourhoods, seeks judicial review of a decision of the Canadian Nuclear Safety Commission [Commission] renewing BWXT Nuclear Energy Canada Inc.’s [Respondent] licence to operate two nuclear facilities in Toronto and Peterborough, Ontario. The Applicant argues that the Commission’s decision was unlawful and unreasonable on account of the licence conditions attached to the production of uranium dioxide fuel pellets in the Peterborough facility, which they deem contrary to statutory and regulatory requirements.

[3] For the reasons that follow, the Court concludes that the decision was lawful and reasonable. As a result, the application for judicial review is dismissed.

II. Facts

[4] The Applicant is an unincorporated non-profit organization, based in Peterborough, and established in spring 2019 in response to the Respondent’s intention to request a ten-year licence renewal from the Commission which would permit the production of uranium dioxide fuel pellets at the Peterborough facility. Previously, the pellets were produced at the Respondent’s premises in Toronto and installed in fuel bundles at the Peterborough plant. The Respondent sought approval of its licence renewal with conditions that would permit it to consolidate the operation at one location, possibly Peterborough, for business reasons.

[5] The Applicant was an active participant in the review of the Respondent’s licence renewal application and made numerous written and oral submissions to the Commission. The Applicant’s membership incudes local residents, parents of children who currently attend or formerly attended an elementary school adjacent to the Peterborough facility, and individuals living in proximity to the plant.

[6] The Respondent is a corporation that owns and operates nuclear fuel manufacturing facilities in Toronto, Peterborough, and Arnprior. Prior to 2016, the Toronto and Peterborough facilities were operated by GE-Hitachi Nuclear Energy Canada Inc. The Commission transferred the operating licence for these facilities to the Respondent following its acquisition of that company. The original plant, which now houses the Respondent’s operation in Peterborough, was apparently built in 1892. It is not clear from the record whether the area was then a residential community or that it became one thereafter.

[7] The Commission is a quasi-judicial administrative tribunal, court of record and regulator established pursuant to s 8(1) of the Nuclear Safety and Control Act, SC 1997, c 9 [NSCA]. It is statutorily mandated to regulate the development, production, use and possession of nuclear energy and nuclear substances in order to prevent unreasonable risk to the environment and to the health and safety of persons: NSCA, s 9(a)(i). The Commission is a specialized body with extensive technical expertise at its disposal: Greenpeace Canada v Canada (Attorney General), 2014 FC 463 at para 233 [Greenpeace FC].

[8] On November 2, 2018, the Respondent applied [Licence Application] to the Commission for a ten-year renewal of its Nuclear Fuel Facility Operating Licence for its two Class IB facilities in Toronto and Peterborough, Ontario. The Respondent’s existing licence [2010 Licence] was granted in 2010 to GE-Hitachi Nuclear Energy Canada Inc. for a ten-year term expiring on December 31, 2020. That licence was transferred to the Respondent in December 2016 following the Respondent’s acquisition of the company. The 2010 Licence amalgamated the Toronto and Peterborough facilities into a single licence, allowing the production of uranium dioxide fuel pellets at the Toronto facility and fuel bundle assemblage at the Peterborough facility.

[9] Pelleting operations consist of the production of natural and depleted uranium dioxide (UO₂) pellets, which are then used together with zircalloy tubes to assemble fuel bundles for nuclear power reactors.

[10] In its Licence Application, the Respondent sought the Commission’s authorization to conduct commercial fuel pelleting operations at the Peterborough facility. These operations were previously limited to only the Toronto facility under the 2010 Licence. The Peterborough facility is located in a residential area of downtown Peterborough and is immediately adjacent to an elementary school, Prince of Wales Public School.

[11] In March 2020, the Commission held a five-day public hearing with two days in Toronto and three days in Peterborough. The Commission heard from the Respondent, the Applicant, and 248 interveners.

[12] In support of its request to commence pelleting operations in Peterborough, the Respondent submitted an environmental risk assessment [ERA] to the Commission. This ERA determined that both the estimated emissions and associated risks of consolidating the operations of the Peterborough and Toronto facilities at the Peterborough facility would be low. The ERA showed that the maximum estimated annual effective dose at the Peterborough facility if pelleting operations were to be transferred would remain below the public annual dose limit of 1 mSv/y: Licence Decision at para 262.

III. Decision under Review

[13] In its Licence Decision dated December 18, 2020, the Commission renewed the Respondent’s licence for a period of ten years pursuant to s 24 of the NSCA and severed the licence into two separate facility-specific licences for the Respondent’s Toronto and Peterborough facilities. The renewed facility-specific licences, FFL-3621.00/2030 for the Toronto facility [Toronto Licence] and FFL-3620.00/2030 for the Peterborough facility [Peterborough Licence], were validated from January 1, 2021 until December 31, 2030. The Licence Decision totals 486 paragraphs and addresses several topics that are not in contention in these proceedings.

[14] Central to this case is the decision of the Commission, by a majority of four-to-one, to authorize the Respondent to produce uranium dioxide fuel pellets at its Peterborough, Ontario facility, subject to three licence conditions, or “hold points” specific to the Peterborough Licence:

• Licence Condition 15.1 requires the Respondent to submit and implement an updated environmental monitoring program at the Peterborough facility prior to the commencement of fuel pellet production: Licence Decision at para 470.

• Licence Condition 15.2 requires the Respondent to submit a final commissioning report related to production of fuel pellets that is acceptable to the Commission, prior to the commencement of commercial fuel pellet production at the Peterborough facility: Licence Decision at para 471.

• Licence Condition 15.3 stipulates that the production of fuel pellets shall be conducted at either the Toronto facility or at the Peterborough facility, but not at both facilities: Licence Decision at para 472.

[15] One dissenting Commission Member, Dr. S. Demeter, held that the Respondent’s request to conduct commercial uranium dioxide fuel pelleting operations at the Peterborough facility should be denied, and that pelleting operations should remain only in Toronto.

[16] All five members of the Commission agreed that if the Respondent transferred its pelleting operations to Peterborough, “the health and safety of persons and of the environment would remain adequately protected as emission levels would remain low”: Licence Decision at para 443. The Commission also found that the Respondent’s Licence Application included information that was required by the Class I Nuclear Facilities Regulations, SOR/2000-204 [Class I Regulations]: Licence Decision at paras 45, 59-60, 71, 90, 114, 128, 169, 186, 304, 307, 315, 324, 332, 399, 412, 424.

[17] The Commission majority held that the Respondent is qualified pursuant to s 24(4) of the NSCA to conduct pelleting operations in Peterborough. Having found that the public effective dose, the air uranium dioxide releases and the effluent uranium dioxide releases are and would remain well below regulatory and licence limits, the Commission majority was satisfied that pelleting operations would be adequately safe at either the Toronto or the Peterborough facility: Licence Decision at para 444.

[18] The dissenting Commission Member did not express an opinion on the qualification of the Respondent to conduct pelleting operations in Peterborough. Rather, the dissenting Commission Member held that if the safety case can be met for either the Toronto or Peterborough facility, the request to allow pelleting in the Peterborough facility needs to be analyzed through the lenses of the “as low as reasonably achievable” [ALARA] principle, the justification principle, the precautionary principle and the relative risk of pelleting in Toronto versus Peterborough: Licence Decision at para 445. The majority and dissenting Commission Member differed in their analyses of all of these considerations.

A. ALARA principle

[19] In his analysis of the ALARA principle, the dissenting Commission Member considered social factors such as equity and social trust to conclude that the Respondent had not demonstrated that moving the pelleting operations to Peterborough would be acceptable. As for the factor of equity, the dissenting Commission Member held that the potential increases of radiation doses and environmental releases to the public that would result from moving pelleting operations to Peterborough are not justified based on the ALARA principle, in light of the inequitable increased exposure to the vulnerable population given the proximity of the Prince of Wales Public School. As for social trust, the dissenting Commission Member held that the proximity of the school and the concerns from local residents are predominant factors for not allowing pelleting in Peterborough.

[20] The Commission majority was satisfied that the Respondent would comply with the ALARA principle and aim at minimizing radiation doses at the Toronto and Peterborough facilities. In their view, the very low levels of environmental releases and doses to the public would not have an impact on the health of persons and the environment, in accordance with s 24(4) of the NSCA.

[21] All members of the Commission were satisfied that the Respondent’s radiation protection program satisfied the requirements of the ALARA principle.

B. Relative risk of conducting pelleting at one facility versus the other

[22] The dissenting Commission Member found that the Respondent failed to provide adequate justification for a transfer of pelleting operations to the Peterborough facility.

[23] While the majority agreed with the dissenting Commission member that the transfer of pelleting operations to Peterborough would increase the environmental emissions of uranium dioxide and the resulting dose to the public in Peterborough, it reasoned that these doses would be so negligible that they would have no health and safety impact to persons and the environment, including to the most vulnerable population such as the students at the Prince of Wales School.

C. Justification Principle

[24] The dissenting Commission Member relied on the 2007 Recommendations of the International Commission on Radiological Protection (ICRP Publication 103, 2007) to conclude that the Respondent failed to provide justification for overriding the need to protect the more vulnerable population of Peterborough, and that it is therefore more justifiable to conduct pelleting operations in Toronto than in Peterborough.

[25] The Commission majority held that the Respondent is entitled to determine how best to conduct its business, and that the Commission’s role is to ensure the Respondent does so safely in accordance with the NSCA and related regulations, which do not entrench the justification principle. As such, it held that flexibility should be built into the licence in the eventuality that the Respondent decides, for business reasons, to consolidate operations in Peterborough.

D. Precautionary Principle

[26] In the view of the dissenting Commission Member, even if it cannot be shown that there would be “serious or irreversible damages” resulting from the transfer of pelleting operations, the increase of radiation doses and uranium dioxide emissions at a site, which has an adjacent vulnerable population, “is not acting in an abundance of precaution”.

[27] The Commission majority found that the precautionary principle would not be breached, as there would not be serious or irreversible damages resulting from the transfer of pelleting operations. The pelleting operations, the plant design and the estimated doses and environmental releases are well characterized and would be conducted in only one facility.

IV. Legislative Scheme

[28] The NSCA is the enabling statute of the Commission. The Commission is established pursuant to s 8(1) of the NSCA and its objects are enumerated at s 9 of the NSCA.

[29] The Committee’s authority to issue licences is provided by s 24 of the NSCA. Subsection 24(4) of the NSCA provides the conditions under which the Commission may renew a licence following receipt of an application if the criteria set out in paragraphs (a) and (b) are met. Pursuant to s 24(5), the Commission is authorized to include in a licence “any term or condition that the Commission considers necessary for the purposes of this Act.”

[30] The requirements for licence applications of s 24(4) are supplemented by several regulations made under the NSCA: the General Nuclear Safety and Control Regulations, SOR/2000-202 [General Regulations]; the Radiation Protection Regulations, SOR/2000-203; and the Class I Regulations.

[31] Subsection 3(1) of the General Regulations sets out the mandatory information that must be provided in all licence applications, among them the requirement under paragraph 3(1)(e) to provide information about “the proposed measures to ensure compliance with the Radiation Protection Regulations.”

[32] Paragraph 4(a) of the Radiation Protection Regulations provides that licensees must implement a radiation protection program that keeps the radiation dose absorbed by members of the public “as low as reasonably achievable [ALARA], taking into account social and economic factors.”

[33] The Class I Regulations set out information to be included in Class I nuclear facility licence applications. Section 3 sets out general, mandatory application requirements for all Class I nuclear facilities, including descriptions of the site and structures, plans detailing the location and systems of the nuclear facility, the proposed environmental protection policies and procedures, and the proposed effluent and environmental monitoring programs.

[34] Section 6 of the Class I Regulations sets out additional mandatory application requirements for a licence to operate a Class I nuclear facility, including a description of operating equipment and its design; a final safety analysis report identifying hazards and risk mitigation controls; a review of effects to the environment, health and safety of persons; the proposed emission release points; and the proposed methods of controlling the off-site impacts of nuclear substances and hazardous substances to the environment.

[35] The Regulatory Documents of the Commission contain guidelines relating to the fulfillment of the requirements set out in the NSCA and its regulations. Regulatory document REGDOC-3.5.3, Regulatory Fundamentals outlines the CNSC’s regulatory philosophy and approach to applying the NSCA. Its s 5.8 refers to Canada’s international obligations.

[36] Regulatory document REGDOC-2.9.1, Environmental Principles, Assessments and Protection Measures, describes the Commission’s principles for environmental protection, the scope and responsibilities pertaining to environmental review, and the Committee’s requirements and guidance to applicants and licensees for developing environmental protection measures. Section 2.1 of REGDOC-2.9.1 provides that social and economic factors must be taken into account when assessing conformity with the ALARA principle.

V. Issues and Standard of Review

A. Issues

[37] This application raises the following issue: Was it reasonable for the Commission to authorize pelleting operations at the Peterborough facility subject to Licence Conditions 15.1, 15.2, and 15.3?

[38] As a preliminary matter, the Respondent submitted that the Applicant’s argument regarding alleged non-compliance with the Class I Regulations was raised for the first time on judicial review, as opposed to before the Commission. The Court heard submissions on this question at the outset of the hearing and agreed with the Applicant in brief oral reasons that compliance with the Class I Regulations was not a new issue. The question of whether the Applicant raised this in its presentations and closing recommendations to the Commission is not determinative, as the Commission considered the issue in its decision, and found that the Respondent’s Licence Application included information that was required by the Class I Regulations. The Applicant was accordingly permitted to address the issue in its submissions.

[39] In the analysis that follows, the question at issue will be assessed by means of the three following sub-questions:

1. Did the Commission have the authority to attach the Licence Conditions?

2. Did the Respondent’s Application omit mandatory information, without which the Commission lacked a sufficient basis on which to make a reasonable decision?

3. Did the Commission fail to properly consider the ALARA principle, the justification principle, or the precautionary principle?

B. Standard of Review

[40] As agreed upon by the parties, the standard of reasonableness applies to the present application. None of the situations that allow for a departure from the presumption of the reasonableness standard are applicable in this case: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 17, 25; Canada Post Corporation v Canadian Union of Postal Workers, 2019 SCC 67 at para 27.

[41] A reasonable decision is “based on an internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker”: Vavilov at para 85. It must encompass the characteristics of a reasonable decision, namely, justification, transparency and intelligibility: Vavilov at para 99, citing Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47 and 74; Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at para 13. The reviewing court must adopt a deferential approach and intervene only “where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process”: Vavilov at para 13.

[42] The guidance of the Federal Court of Appeal in Greenpeace Canada v Canada (Attorney General), 2016 FCA 114 [Greenpeace FCA], as concerns the application of the reasonableness standard to decisions of the Commission, is directly relevant to the case at bar:

[60] Where, as here, the issues at play involve detailed factual findings and discretionary decisions within the heartland of the tribunal’s expertise, the reasonableness standard requires that considerable deference be given to the tribunal’s determinations. This is particularly so when the issues under review concern nuclear safety and the tribunal is the nuclear safety regulator. In short, the CNSC is much better placed than a reviewing court to factually assess and determine what types of possible accidents are likely to occur at a nuclear power plant and how to conduct the assessment of the environmental impacts of potential accidents. It is therefore inappropriate for a reviewing court to second-guess these determinations through a detailed re-examination of the evidence as the appellants would have us do in the instant case.

VI. Analysis

A. Was it reasonable for the Commission to authorize pelleting operations at the Peterborough facility subject to Licence Conditions 15.1, 15.2, and 15.3?

(1) Did the Commission have the authority to attach the Licence Conditions?

[43] It appears from the Decision (at para 435) that the reason provided by the Respondent to the Commission for requesting license approval for pelleting in Peterborough was that the company wanted some assurance that it was feasible before exploring the option. No decision had apparently been made regarding that option.

[44] The Applicant submits that it was unlawful for the Commission to issue Licence Conditions that are not consistent with the regulatory purpose of licensing: ATCO Gas & Pipelines Ltd. v Alberta (Energy and Utilities Board), 2006 SCC 4 at paras 49-50 [ATCO].

[45] In ATCO, at para 50, the Supreme Court emphasized that the grant of authority to exercise a discretion does not confer unlimited discretion to the decision-maker. The discretion must be exercised within the confines of the statutory regime and principles generally applicable to regulatory matters.

[46] The Applicant argues that it was unreasonable for the Commission to qualify the Licence Conditions as “hold points” for which the Respondent has to provide proof before proceeding with pelleting, as in so doing, the Commission has deferred a decision it was required to make within a public hearing and under its enabling statute.

[47] The terminology of “hold points” to which the Applicant refers is not found in the Licence Decision, but rather in the transcript of the March 4, 2020 public hearing which reads as follows:

Now everything, all requirements has to be met and then we will provide you with either a hold point by which the applicant has to provide proof to the Commission and then we will put the process in place according to the rule of procedures.

[48] Reliance on “hold points”, the Applicant contends, relieves the Respondent from mandatory application obligations, as the information the Commission would later receive to determine whether hold points are fulfilled is the information that was legally required for the licence application itself. The Applicant submits that this approach defers key elements of analysis to a later date and thus renders the decision-making process meaningless.

[49] The imposition of hold points, rather than conditions precedent to the licence, is inconsistent with the regulatory scheme, according to the Applicant, as the General Regulations and Class I Regulations set out the information which is required in an application prior to a licence being granted, and not after the granting of a licence.

[50] The Applicants rely on Morton v Canada (Fisheries and Oceans), 2015 FC 575 at para 98 [Morton] to assert that licence conditions cannot derogate from or be inconsistent with the regulatory scheme.

[51] The Commission’s use of hold points also denies the public the opportunity to be heard, thus violating s 40 of the NSCA, the Applicant argues. By not providing information specific to pelleting at the Peterborough facility, to which interveners ought to have been able to respond in the licensing process, public participation was denied. The Applicant submits that this approach lacked transparency and failed to meet the statutory purpose under paragraph 9(b) of the NSCA of disseminating information to the public.

[52] The Commission’s rationale for attaching the hold points to the licence – the fact that the Respondent had sought flexibility in its licence in case it decided to consolidate operations in Peterborough for business reasons – does not reflect the purposes of the statute nor the obligations of the Commission set out by ss 3 and 24(4) of the NSCA, in the Applicant’s view.

[53] The Respondent submits that the imposition of “hold points” was consistent with the Commission’s regulatory practice, as evidenced by regulatory document REGDOC-3.5.1, Licensing Process for Class I Nuclear Facilities and Uranium Mines and Mills (Version 2) at p 9, which notes that the “first licence to operate [a Class I] facility is typically issued with conditions (hold points).”

[54] Moreover, as demonstrated by three recent decisions dating from 2015 to 2018, involving Ontario Power Generation, the Saskatchewan Research Council and Bruce Power, the imposition of hold points was not an unusual exercise of the Commission’s regulatory authority. In each of these decisions, the Commission imposed licence conditions in the form of forward-looking hold points rather than conditions precedent. The Court agrees with the Respondent that accepting the Applicant’s position would result in regulatory uncertainty and confusion, as it would cast doubt over the Commission’s jurisdiction to supervise and monitor these facilities and existing hold point arrangements.

[55] In the Court’s view, Morton is inapplicable to the present matter as it pertained to a licence condition issued pursuant to the Fishery General Regulations, SOR/93-53, which contain no equivalent to s 24(5) of the NSCA. While s 24(5) of the NSCA provides that the Commission can attach any term or condition considered necessary, s 22(1) of the Fishery General Regulations set forth the opposite instruction in providing that “the Minister may specify in a licence any condition that is not inconsistent with these Regulations”: Morton at para 8.

[56] As a creature of statute, the Commission has only such legal authority as the legislature has expressly or by implication conferred on it. Judicial interpretation of such authority must endeavour within the scope of the legislation to give effect to its provisions so that the administrative agencies created may function effectively, as the legislature intended: Maple Lodge Farms v Government of Canada, [1982] 2 S.C.R. 2 at 7; Vavilov at para 308.

[57] Where the legislature chooses to grant authority to a decision maker using broad, open-ended or highly qualitative language, with no right of appeal to a court, then the legislature’s intention that the decision maker have greater flexibility in interpreting its enabling statute should be given effect: Vavilov at paras 68, 110.

[68] Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker — perhaps limiting it one. Conversely, where the legislature has afforded a decision maker broad powers in general terms — and has provided no right of appeal to a court — the legislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect. […]

[110] Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. […]

[Emphasis added]

[58] Parliament did precisely this in providing that the Commission may attach to a licence “any term or condition that the Commission considers necessary for the purposes of this Act,” pursuant to s 24(5) of the NSCA. This is but one of the several “broad powers” the legislature has conferred on the Commission with regard to granting licences, pursuant to ss 24 and 25 of the NSCA: Athabasca Regional Government v Canada (Attorney General), 2010 FC 948 at para 236. Thus, the intention was that the Commission is to have significant leeway in interpreting the meaning of s 24(5) of the NSCA.

[59] The broad and open language of s 24(5) is, in the Court’s view, a complete response to the question of whether the license conditions were lawful, as the enactment provides the Commission with statutory authority to issue licence conditions in the form of hold points that must be satisfied prospectively. The attachment of conditions in the form of hold points is not a deferral of a decision, but rather an integral part of the decision that the Commission made. Thus, the Commission’s decision was fully compliant with its enabling statute.

[60] The Applicant’s submissions that the use of hold points denies the public the opportunity to be heard and impedes the dissemination of information to the public in violation of ss 40 and 9(b) of the NSCA are premature, as the Respondent contends. The Commission has not yet made a decision on whether to hold a public hearing regarding the Respondent’s satisfaction of the hold points and the record does not support a finding that it will not do so. The Commission ordered a public proceeding to occur not later than 2026 where the Respondent must present “comprehensive mid-term updates on its licensed activities” to the Commission: Licence Decision at paras 23, 480.

[61] As a general principle, the Court should avoid interfering with ongoing administrative processes until after they are completed: Canada (Border Services Agency) v CB Powell Ltd, 2010 FCA 61 at para 31; Klos v Canada (Attorney General), 2021 FCA 238 at para 6.

[62] In the result, the Court is satisfied that it was reasonable and lawful for the Commission to attach the Licence Conditions in the form of “hold points” to the Peterborough Licence.

B. Did the Respondent’s Application omit mandatory information, without which the Commission lacked a sufficient basis on which to make a reasonable decision?

[63] The Applicant submits that the Respondent failed to provide the following requisite information in its Licence Application:

● Information about four of the fourteen Safety and Control Areas (SCA) used by the Commission to assess compliance with regulatory compliance, namely: (i) operating performance; (ii) safety analysis; (iii) physical design; and (iv) environmental protection;

● Three categories of information required by the Class I Regulations and the Radiation Protection Regulations, namely:

(i) information regarding its proposed environmental protection policies for the Peterborough facility (as required by paragraph 3(g) of the Class I Regulations);

(ii) information regarding its proposed effluent and environmental monitoring programs for the Peterborough facility (as required by paragraph 3(h) of the Class I Regulations); and

(iii) information regarding the Peterborough facility’s design and layout, emissions release points and environmental effects (as required by section 6 of the Class I Regulations).

[64] Safety and control areas [SCAs] are the technical topics used by the Commission to assess, review, verify and report on regulatory requirements and performance across all regulated facilities and activities. There are fourteen distinct SCAs, among them operative performance, safety analysis, physical design, and environmental protection.

[65] The Applicant submits that the Commission authorized pelleting at the Peterborough facility despite finding that the Respondent’s licence application did not include requisite information about four SCAs: operative performance, safety analysis, physical design, and environmental protection. In the Applicant’s view, this is unlawful, as it is contrary to s 24(4) of the NSCA, which requires the Commission to determine whether the licensee has made adequate provision for the protection of the environment and the health and safety of persons.

[66] Information pertaining to the SCA of operating performance was omitted, as the Respondent had not yet carried out a complete assessment on how the pelleting operation would be moved to the Peterborough facility and whether significant changes to the assurance process would be needed. According to the Applicant, such operating performance information is mandatory in applications per paragraph 6(d) of the Class I Regulations.

[67] Information pertaining to the SCA of safety analysis was omitted, as the Commission found that the Respondent had not updated its existing Safety Analysis Report [SAR] for the Peterborough facility, but rather adopted the SAR currently in place for its pelleting operations in Toronto. This, in the Applicant’s view, was a violation of paragraph 6 (c) of the Class I Regulations.

[68] As the Respondent had not completed the design for modifications to equipment, structures, systems and components such as stacks and emissions modelling necessary for pelleting to occur in Peterborough, information pertaining to the SCA of physical design was omitted. This omission, the Applicant contends, violates paragraphs 3(a), (b), (e) and (h) and paragraphs 6(a) and (b) of the Class I Regulations.

[69] Information pertaining to the SCA of environmental protection was omitted, as the Commission found that the Respondent had not updated its environmental monitoring program to account for pelleting operations at the Peterborough facility. Such information was required, according to the Applicant, by ss 4.2 and 4.3 of RegDoc 2.9.1 and paragraphs 3(g) and 3(h) of the Class I Regulations in order to identify, seek to control, and monitor all releases of radioactive and hazardous substances to the environment.

[70] The absence of the information pertaining to the four SCA’s, the Applicant submits, deprived the Commission of the requisite material to make a reasonable decision under s 24(4) of the NSCA to authorize the Respondent’s transfer of pelleting operations to Peterborough.

[71] The Applicant submits that the Respondent’s licence application failed to include the requisite information regarding its proposed environmental protection policies and proposed effluent and environmental monitoring programs for the Peterborough facility (as required by paragraphs 3(g) and 3(h) of the Class I Regulations), as well as the requisite information regarding the Peterborough facility’s design and layout, emissions release points and environmental effects (as required by s 6 of the Class I Regulations).

[72] The Respondent contends that it provided information responsive to each of the SCAs as well as each of its regulatory requirements, and that the Commission did not commit an error in unanimously recognizing that the Respondent had satisfied the requirements of the Class I Regulations. The Respondent argues that the Environmental Risk Assessment (ERA) it submitted to the Commission, which concluded that the proposed consolidated facility would produce emissions and radiation exposure at mere fractions of the licence or regulatory limits, provides information responsive to the requirements of paragraphs 3(g), 3(h), 6(h), 6(i), 6(j) and 6(k) of the Class I Regulations. Moreover, the Respondent submits that it provided detailed information regarding its environmental monitoring program in conformity with s 6(h) of the Class I Regulations, and notes that it proposed transferring its air and soil monitoring practices from Toronto to Peterborough if it commenced pelleting in Peterborough, which is the same obligation created by Licence Condition 15.1. The ERA, the Respondent submits, was site specific as it expressly accounts for local climate and meteorology, geology, groundwater flow, surface water, terrestrial and aquatic environments, land use and the presence of the Prince of Wales Public School.

[73] The Court agrees with the Respondent that the sufficiency of an application under the Class I Regulations is a subjective standard left to the Commission to enforce, as the Regulations provide broad, general standards, and terms defined without scientific precision. These broadly defined standards leave room for the Commission’s judgment. It is worth noting that the Commission itself wrote the Class I Regulations pursuant to s 44 of the NSCA. Calibration of the precise level of specificity required by these broad terms is a matter Parliament left for the Commission, not for the Applicant or the Court.

[74] It was reasonable, in the Court’s view, for the data and practices related to the Toronto facility to be transposed to the Peterborough facility for the purpose of the ERA and environmental monitoring program. This approach is supported by the regulatory guidance provided by REGDOC-2.9.1, Environmental Protection: Environmental Principles, Assessments and Protection Measures, which stipulates that initial ERAs of new facilities or activities are “based on best estimates of the facility- or activity-specific characteristics” and “primarily predictive”, as they involve assessing the potential effects of a hypothetical facility or activity. The use of the Toronto facility data presented a stronger, more reliable safety case than mere predictive assessments of a hypothetical facility that had yet to commence operations. It was open to the Commission to accept the 2016 data as it is best suited to make such a finding.

[75] With respect to the SCA of safety analysis, it was also reasonable for the Commission to rely on the Respondent’s safety analysis report from Toronto to satisfy paragraph 6(c) of the Class I Regulations, as well as the Commission’s request for a mid-licence update prior to the commencement of pelleting operations in Peterborough, pursuant to Licence Condition 15.2.

[76] The Respondent submits that it devoted 14 pages of its 58-page licence application to the proposed measures, policies, methods and procedures for operating and maintaining the nuclear facility, and thus satisfied the requirements of s 6(d) of the Class I Regulations. The Respondent argues that the information relating to the Toronto facility was transferrable, as much of this information is comprised of general practices and policies that would apply no matter where pelleting took place, and because the Respondent plans to implement the exact same process if pelleting is transferred to the Peterborough facility. It was reasonable for the Commission to rely on this information.

[77] As for the SCA of physical design, the Respondent argues that it provided descriptions of the locations, structures, systems and equipment used as required under paragraphs 3(a), 3(b), 6(a) and 6(b) of the Class I Regulations. Pelleting operations in Peterborough would be conducted within the existing licensed facility via a reconfiguration of existing space, and no new buildings would be constructed. Any changes and modifications that may occur during the licence period would be governed by the Respondent’s change management plan, which was approved by the Commission. Furthermore, the Respondent submits that its ERA provides information on release points for the proposed consolidated facility, as required by paragraph 6(i) of the Class I Regulations. The Commission was aware that the exact placement of new release points had not yet been finalized but was still satisfied that the Respondent had provided sufficient information for the Commission to exercise its authority under s 24(4).

[78] It does not constitute a reviewable error for the Commission to require additional information from a licensee in the future. Changes to a licensed facility or activity are expected. The Commission’s authority to attach any condition it considers necessary would have little or no purpose if licence applications must fully account for every contingency during the licence period.

[79] The Commission did not lack a sufficient basis on which to make a reasonable decision, as it was reasonable for it to rely on the information that the Respondent provided pursuant to its statutory and regulatory requirements. The Commission’s exercise of its discretion should not be interfered with merely because such discretion could have been exercised in a different manner: Maple Lodge Farms v Government of Canada, [1982] 2 S.C.R. 2 at 7.

[80] In Greenpeace FC, the Federal Court held that it was reasonable for the Commission to accept plans that were “far from final” as meeting the requirements of s 3 of the Class I Regulations: Greenpeace FC at para 409. In any case, the Commission’s requests for further information do not constitute findings to the effect that the Respondent failed to provide adequate information to make a decision. The appreciation of the adequacy of the information before the Commission is a matter properly left to the judgment of the Commission, which has a high degree of expertise in such matters: Alberta Wilderness Assn. v Express Pipelines Ltd, 1996 CanLII 12470 (FCA) at para 9; Greenpeace FCA at para 60. As the Federal Court of Appeal stated in Greenpeace FCA, it is “inappropriate for a reviewing court to second-guess these determinations through a detailed re-examination of the evidence as the appellants would have us do in the instant case”: Greenpeace FCA at para 60.

[81] The Court is therefore satisfied that the Commission had a sufficient basis on which to make reasonable conclusions pertaining to the SCAs of operating performance, safety analysis, physical design and environmental protection, as well as conformity with the Class I Regulations. It is not the proper role of this Court to re-evaluate the evidence and come to a different conclusion as to whether the requirements of the Class I Regulations were satisfied.

C. Did the Commission fail to properly consider the ALARA principle, the justification principle, or the precautionary principle?

[82] The Applicant submits that the Commission exercised its discretion unreasonably in light of three principles: (i) the ALARA principle; (ii) the justification principle; and (iii) the precautionary principle. These principles, the Applicant argues, have been entrenched in international law and ss 3, 9 and 24 (4) of the NSCA required that they be applied by the Commission.

[83] The Applicant relies on Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62 [Kazemi] at para 61 to submit that legislation is presumed to operate in conformity with Canada’s international obligations, and that those obligations must inform decision-makers as they interpret and apply laws.

[84] The Applicant submits that the term “international obligations” in s 24(4) of the NSCA must be interpreted to include the three core principles of radiation protection: justification, optimization of radiation protection (or ALARA), and dose limitation (the radiation protection principles). The Applicant contends that the Court’s interpretation of s 24(4) should be guided by the legal test for establishing customary international law, as it is designed to incorporate elements of international law into domestic law that are not in the form of treaties.

[85] The mere existence of a customary rule in international law does not automatically incorporate that rule into the domestic legal order: Kazemi, at para 61. There are two requirements for a norm of customary international law to be recognized in Canadian law: (a) a general but not necessarily universal practice, and (b) opinio juris, the belief that such practice amounts to a legal obligation: Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 77.

[86] The Applicant contends that these criteria are satisfied by Canada’s adherence to the International Commission for Radiation Protection’s [ICRP] 1977 recommendations on radiological protection that have been adopted within the International Atomic Energy Agency Fundamental Safety Principles. These Fundamental Safety Principles are centred on the three core principles enumerated above. The Applicant also asserts that this general practice of justification analysis includes consideration of factors such as societal and ethical aspects: s 3.85 of the International Atomic Energy Agency, “Radiation Protection of the Public Environment”.

[87] The Applicant also relies on a statement by the Commission in 2019 to the ICRP that its licensing process embodies the exercise of justification: Canadian Nuclear Safety Commission, “Canada’s response to the 2019 IRRS Report”.

(a) ALARA Principle

[88] The Applicant argues that it was unreasonable for the Commission to authorize the Licence Conditions when its decision specifically rejected contemplation of the social and economic factors necessary to assess whether doses of nuclear substances to the public and environment complied with the ALARA principle. Thus, the Applicant contends that the Commission failed to implement the ALARA principle by rejecting contemplation of social and economic factors, contrary to paragraph 4(a) of the Radiation Protection Regulations.

[89] The Applicant notes that s 5.0 of the Regulatory Guide G-129, Rev. 1, Keeping Radiation Exposures and Doses “As Low as Reasonably Achievable (ALARA)”, the predecessor of draft RegDoc 2.7.1 Radiation Protection, confirms that the ALARA principle takes into consideration relevant social and economic factors, including the views of the public. Furthermore, the Applicant maintains that implementation of the ALARA principle is required by ss 2.1, and 4.2.1 of REGDOC-2.9.1 Environmental Protection, ss 2.1.1, 2.1.2, 2.2.2, and 3.1 of RegDoc 2.9.2 Controlling Releases to the Environment (draft 2021), and by Appendix B of RegDoc 3.1.2 Reporting Requirements, Volume 1: Non-Power Reactor Class I Nuclear Facilities and Uranium Mines and Mills.

[90] In support of its argument that the Commission failed to take into account social considerations in accordance with the ALARA principle, the Applicant cites passages in the transcript of the public hearings in which the President of the Commission stated several times that “[t]he mandate of the Commission also does not include a requirement that licensed activities have community support, local buy-in, social licence or social acceptability. […] the Commission is not mandated to adjudicate social licence considerations”.

[91] In addition to the entrenchment of the ALARA principle in domestic regulations, the Applicant argues that the ALARA principle is also a core international obligation that must be applied by the Commission pursuant to s 24(4) of the NSCA. The Applicant contends that Canada is obligated to take all appropriate steps to ensure that radiation exposure is kept “ALARA” by article 15 of the Convention on Nuclear Safety and thus the Commission was required to consider the ALARA principle, including social and economic factors.

[92] The Respondent submits that the majority of the Commission properly considered the ALARA principle. It argues that the principle does not independently inform the Commission’s licensing decisions. Rather, the Respondent argues, the ALARA principle is implemented through the Radiation Protection Regulations and requires licensees to implement a radiation protection program; the Commission applies ALARA by ensuring this program is satisfactory: Regulatory Guide G-129, Rev. 1, Keeping Radiation Exposures and Doses “As Low as Reasonably Achievable (ALARA)”, ss. 1.0, 2.0, 4.0. The Respondent complies with this by, for example, monitoring radiation doses, implementing “action levels” and establishing an ALARA Committee. There is no independent obligation for the Commission to exercise its discretion in a manner that is ALARA-compliant, but rather, only an obligation for the licensee to implement measures that optimize radiation doses. The Commission majority decision ensures that efforts to reduce doses are proportionate to the risk in stressing that “the very low levels of environmental releases and doses to the public” created by the potential consolidation of the two facilities “would not have an impact on the health of persons and the environment”: Licence Decision at para 447.

[93] There is no provision in the Radiation Protection Regulations, nor in any regulatory or guidance document requiring the Commission to exercise its discretion in accordance with the ALARA principle in its assessment of radiation protection programs. Rather, paragraph 4(a) of the Radiation Protection Regulations entrenches the ALARA principle only insofar as it pertains to the design of a radiation protection program by a Licensee. None of the regulations or regulatory documents cited by the Applicant create an obligation for the Commission’s decisions to comply with the ALARA principle, nor for its decisions to take into account social considerations in applying that principle. While such factors are to be found in the draft regulatory document relied upon by the dissenting Commission Member, they have yet to be adopted in domestic law. Legislative changes would be necessary for social factors to have an impact on the Commission’s licence discretion. A representative of the Applicant at the Commission hearing conceded this.

[94] In any event, the draft regulatory document relied upon by the Applicant, RegDoc 2.7.1 at s 4.1.3, provides that the ALARA principle must be implemented by the Licensee, and not by the Commission. Regulatory Guide G-129, Rev. 1, which is currently in force, provides that the Commission “looks at the processes adopted by licensees to maintain doses ALARA as evidence of compliance with paragraph 4(a) of the Radiation Protection Regulations”: Regulatory Guide G-129, Rev. 1, s 4.0.

[95] In the Court’s view, the Commission did not unreasonably fail to implement the ALARA principle as there was no obligation for it to do so in its decision. The Commission properly found that the Respondent complied with the ALARA principle by monitoring radiation doses, implementing “action levels” and establishing an ALARA Committee.

(b) Justification Principle

[96] The Applicant submits that the Licence Decision is unreasonable because it does not comply with the principle of justification and thus does not meet the requirement under s 24(4) of the NSCA to implement international obligations. According to the Applicant, the justification principle dictates that the Commission could not authorize pelleting operations in the Peterborough facility without finding that the advantage posed by exposure to additional levels of ionizing radiation outweighed any risks.

[97] The Respondent submits that the justification principle has not been incorporated or adopted into the NSCA, its regulations or any of the Commission’s regulatory guidance. Canada has not agreed to adopt or incorporate the justification principle into domestic law; thus, reference to “intentional obligations” in the NSCA does not entrench the justification principle. The Respondent further notes that Canada expressly rejected a request from the International Atomic Energy Agency to incorporate the justification principle explicitly into its legal framework: Canadian Nuclear Safety Commission, “Canada’s response to the 2019 IRRS Report”, pp 3-4. In light of Canada’s express rejection of the principle, the Respondent argues that it cannot qualify as customary international law either, as it fails the criterion requiring that the practice be motivated by the belief that such practice amounts to a legal obligation. Finally, the Respondent notes that while the justification principle under international law requires an assessment of whether the benefits outweigh the harm, the Commission’s approach to justification differs in that the Commission “justifies” its decisions on the basis that there is no unreasonable risk. According to the Respondent, the Commission majority affirmed this understanding of the justification principle in its reasons, explaining that its role is to apply the NSCA and its regulations to ensure that the Respondent is operating safely within those regulatory boundaries.

[98] The Court agrees with the Respondent that the term “international obligations” in s 24(4) of the NSCA does not entrench the justification principle. Absent express incorporation, the normative content of Canada’s domestic laws does not include principles of international law. In the Federal Court of Appeal’s unanimous Entertainment Software Association v. SOCAN, 2020 FCA 100 decision, Justice Stratas articulated the following principles with respect to international norms:

[77] Too often these days, we see these misuses. International law enters legal debates before courts and administrative decision-makers only in specific, defined ways that are consistent with settled doctrine and our constitutional framework: Gitxaala Nation v. Canada, 2015 FCA 73.

[…]

[80] For this fundamental reason, international instruments cannot become Canadian law without domestic legislative action. Put another way, international instruments are not self-executing in Canadian domestic law. They must be incorporated into Canadian domestic law by legislation that adopts the international instrument in whole or in part or enacts standards borrowed from or related to that instrument: Capital Cities Comm. v. C.R.T.C., 1977 CanLII 12 (SCC), [1978] 2 S.C.R. 141, 81 D.L.R. (3d) 609 at 171-172 S.C.R.; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; and many others. If Parliament decides not to adopt a particular international instrument, that instrument does not become binding domestic law: Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193 at para. 137. Those who want it to be binding law have only one recourse: they must persuade some politicians to make it so.

[…]

[87] The foregoing principles apply to administrative decision-makers as well as courts. Like courts, administrative decision-makers must interpret legislation by examining its text, context and purpose: Vavilov at paras. 120-121. As discussed above, under that method, international law enters into the analysis only in certain ways.

[99] In its response to the International Atomic Energy Agency declining its request to expressly incorporate the justification principle, the Commission noted that its licensing process “embodies” the justification principle of international law; however, it drew a distinction between the exercise of justification under s 24(4) of the NSCA, which requires that decisions be justified on the basis that there is no unreasonable risk, and the justification principle as understood under international law, which requires an assessment of whether the benefits outweigh the harm. Therefore, it cannot be said that the justification principle, as understood under international law, is believed to amount to a legal obligation in Canada. As such, it does not satisfy the criterion of opinio juris and does not constitute a norm of customary international law.

(c) Precautionary Principle

[100] The Applicant relies on 114957 Canada Ltée (Spraytech, Société d'arrosage) v Hudson (Town), 2001 SCC 40 at paras 30-32 [Spraytech] to argue that the Commission failed to apply the precautionary principle, as enshrined in Principle 15 of the Rio Declaration on Environment and Development, UN Conference on Environment and Development, UN Doc A/CONF 151/Rev 1 (1992) and required by the Commission’s guidance document “Implementation of the Precautionary and Sustainable Development Principles in Nuclear Law – A Canadian Perspective”. The Applicant argues despite the Commission’s assertion that the estimated doses and environmental releases of potential pelleting operations at the Peterborough facility are “well characterized”, the Commission made a decision without the necessary site-specific evidence, contrary to the precautionary principle.

[101] The Respondent submits that the Commission properly decided not to apply the precautionary principle, as there were no threats of “serious or irreversible damage”. The Respondent cites the definition of the precautionary principle in Spraytech at para 31, wherein the Supreme Court confirms that the principle is triggered “where there are threats of serious or irreversible damage”. Furthermore, the Respondent argues that the dissenting Commission Member overextended or reinterpreted the precautionary principle by suggesting that he was not satisfied because the transfer of pelleting operations to Peterborough would not amount to “acting in an abundance of caution”.

[102] The Court agrees with the Respondent that, applying the definition in Spraytech, the precautionary principle was not engaged in this instance. The Commission majority expressly found that “there would not be serious or irreversible damages” resulting from the transfer of pelleting operations to Peterborough. The dissenting Commission Member conceded “it would be difficult to argue that there is potential for ‘serious or irreversible damages’ with moving the pelleting operations”. The test is not, as the dissenting Member suggested, that the principle was breached because the transfer to Peterborough would not amount to “acting in an abundance of caution”. Thus it was reasonable for the Commission majority to determine that the precautionary principle was not engaged.

VII. Conclusion

[103] In the application of the reasonableness standard, the Court is not empowered to substitute its own view of the merits of the underlying matter. Reasonable people can disagree about whether expanding an industrial operation involving nuclear materials in a residential district and adjacent to a primary school is wise. The Court is aware that the City of Peterborough has a long industrial history. It appears that the Respondent’s facility has been in its present location for many years under the present and previous owners. The record does not indicate when the school was built in that neighbourhood or whether the Respondent’s facility was being used for handling nuclear materials when the school was constructed. The concerns of residents in that neighbourhood, especially the parents of the children attending that school, are understandable notwithstanding the evidence and the findings of the Commission members, including the dissenting member, that the risk of harm is very low. While the Court may consider that the wisdom of expanding an industrial operation involving nuclear materials in the immediate vicinity of a primary school is dubious, that is not the question before it to determine.

[104] Applying the legal standard of reasonableness, including the deferential approach required by the governing authorities, this is not a case where the Court can find that it is truly necessary to intervene in order to safeguard the legality, rationality and fairness of the administrative process: Vavilov at para 13. The application for judicial review must therefore be dismissed.

[105] The parties have agreed to bear their own costs. Accordingly, none will be awarded.

 

JUDGMENT IN T-228-21

THIS COURT’S JUDGMENT is that the application is dismissed. The parties shall bear their own costs.

“Richard G. Mosley”

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-228-21
STYLE OF CAUSE:	CITIZENS AGAINST RADIOACTIVE NEIGHBOURHOODS V BWXT NUCLEAR ENERGY INC
PLACE OF HEARING:	heard via videoconference
DATE OF HEARING:	MARCH 21-22, 2022
JUDGMENT AND REASONS:	MOSLEY J.
DATED:	June 9, 2022

APPEARANCES:

Theresa A. McClenaghan Kerrie Blaise Jacqueline Wilson	For The Applicant
John Terry James Gotowiec Alex Bogach	For The RespondenT

SOLICITORS OF RECORD:

Canadian Environmental Law Association Toronto, Ontario	FOR THE APPLICANT
Torys LLP Toronto, Ontario	For The Respondent