Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2003 FCT 722

Date: 20030609

Docket: T-213-03

Citation: 2003 FCT 722

BETWEEN:

PRAIRIE ACID RAIN COALITION,

PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT

and TOXICS WATCH SOCIETY OF ALBERTA

                                                                                                                                                   Applicants

                                                                                 and

MINISTER OF FISHERIES AND OCEANS

and TRUENORTH ENERGY CORP.

                                                                                                                                            Respondents

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  This judicial review proceeding involves a development of an oil sands project at Fort Hills, Alberta by the Respondent, TrueNorth Energy Corp. The subject of the review is a decision of the Minister of Fisheries and Oceans (the "Minister"), of 13 December 2002, and the destruction of the bed and channel of Fort Creek.

[2]                  While the Applicants made a Rule 317 request for documents which were before the Minister, when he made the decision, in their Notice of Application filed 6 February 2003 and served on 17 February 2003, those documents, which were due within 20 days of service, have still not been produced three months later. Thus the present application for production.

[3]                  The Applicants wish to get on with this judicial review application so as not to be caught by surprise should the project, which is presently on hold by reason of economic condition and uncertainties, proceed without warning and on time lines which might outstrip the progress of judicial review. Counsel for the Respondent, TrueNorth, as recently as 15 May 2003, expressed surprise and dismay over the procedural skirmishes between the Applicants and the Department of Justice and wished to move the matter forward. Indeed, at an earlier stage leading up to this motion, TrueNorth refused to give any undertaking that it would not begin the construction of the project before the resolution of this judicial review application, leaving the Applicants of the view that they must get on with their judicial review because TrueNorth reserved the right to re-start the project when and if it chose, without warning. Indeed, the Applicants feel that this is not the only option open to TrueNorth, who might also sell it as a turnkey operation, with approvals and licences in place.

[4]                  The Minister submits that the question of compelling production is moot, for there is no longer a live issue and no concrete dispute of the parties and in any event the Court ought not exercise its discretion to hear the matter, referring to Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 353. Here the Crown refers to a 13 January 2003 press release by TruthNorth announcing a decision of the board of directors to defer the project. However the Crown says, in any event, that were the project to proceed that would take time, sufficient time either for the Minister to provide the documents or for the Applicants to seek injunctive relief.

[5]                  I note the Minister has undertaken to notify the Applicants if he issues further reports, but that could well be cold comfort were TrueNorth to decide that circumstances had changed and that TrueNorth wished to proceed with the project immediately.

[6]                  Given the positions taken by counsel for TrueNorth, the refusal to provide an undertaking that the construction of the project would not begin until the determination of this judicial review and that TrueNorth wish to move along with the judicial review, it certainly appears that the issue is not just a potentially live issue, but indeed, in the minds of the Applicants and of TrueNorth, a live issue, or as put by the Supreme Court in Borowski (supra) at page 353, a tangible and concrete dispute. The only evidence to the contrary is a press release some five months ago, by TrueNorth, which TrueNorth clearly does not wish to endorse as an undertaking.

[7]                  Given my conclusion that there is a tangible and concrete dispute I do not have to consider whether the application, if moot, might still be heard through the exercise of discretion by the Court, as discussed in Borowski (supra) at page 358 and following. However, were I to examine and consider that aspect the evidence certainly points to an ongoing adversarial relationship, a direct interest on the part of the Applicants, collateral consequences in that a failure to obtain a judicial review decision now, or at least in a timely manner, could result in the Applicants being caught short of time should the project be reactivated without notice and finally, to clear public interest in a resolution. As I say I do not examine these aspects, or others which might have bearing, for as pointed out in Borowski there is no explicit or neat set of criteria.

[8]                  The record of material of the Respondent Minister, the subject matter of the Rule 317 request and of this motion, are to be produced within 21 days. Costs of the motion to the Applicants forthwith as sought, in the amount of $485.29.

(Sgd.) "John A. Hargrave"

                                                                                              Prothonotary

Vancouver, British Columbia

9 June 2003

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                            T-213-03

STYLE OF CAUSE:                        Prairie Acid Rain Coalition et al. v. Minister of Fisheries and Oceans et al.

REASONS FOR ORDER:            Hargrave P.

DATED:                                              9 June 2003

WRITTEN REPRESENTATIONS BY:                              

SOLICITORS OF RECORD: