Hamilton-Wentworth (Regional Municipality) v. Canada (Minister of The Environment), docket T-1400-99

Date: 20000406

Dockets: T-1400-99

     T-1993-99

BETWEEN:

     REGIONAL MUNICIPALITY OF HAMILTON-WENTWORTH

     Applicant

     - and -

     THE MINISTER OF THE ENVIRONMENT,

     THE MINISTER OF FISHERIES AND OCEANS,

     and NICK MILDER, RAY AFAR and SALLY LEANER

     in their capacities as members of a Review Panel appointed under the

     Canadian Environmental Assessment Act

     Respondents

     REASONS FOR ORDER

DAWSON J.:

[1]      The Regional Municipality of Hamilton-Wentworth wishes to complete the Lincoln Alexander/Red Hill Creek Expressway. The federal Minister of the Environment has referred the project to a Review Panel constituted under the Canadian Environmental Assessment Act, S.C. 1992, c. 37, as amended, for the purpose of conducting a public environmental hearing assessment. The terms of reference of the Panel provide that it should consider, among other things, the need for, alternatives to, and the environmental effects of the completion of the Expressway. The Regional Municipality has commenced two applications for judicial review challenging a number of decisions of federal authorities related to the review of the Expressway Project. The applications for judicial review are set for hearing for four days commencing on May 15, 2000.

[2]      A number of interlocutory issues have arisen. These reasons arise out of:

(i) an appeal by the applicant and a cross-appeal by the respondents from the prothonotary's order dated December 10, 1999, amended by order dated January 17, 2000, in suit number T-1400-99, which I will refer to as the "original proceeding". That order struck out portions of the notice of application, significantly reducing the scope of the judicial review;

(ii) a motion by the applicant, brought in the alternative to its position on the appeal from the prothonotary's order, by which it seeks leave to amend the application filed in the original proceeding and an extension of time to bring its application; and

(iii) a motion by the respondents striking out significant portions of the notice of application filed in suit number T-1993-99, which I will refer to as the "second proceeding".

[3]      The argument of these motions, together with an appeal by the applicant from an order of the prothonotary refusing the applicant leave to file a further affidavit in support of its motion for leave to amend, and a cross-appeal by the respondents from the prothonotary's order of costs, required three full days.

The Facts

[4]      The prothonotary neatly summarized the underlying facts in his reasons for his order striking out portions of the notice of application filed in the original proceeding. He wrote:

[7]      The Expressway is a major transportation corridor undertaking that extends along the south and east of the City of Hamilton from Highway 403 in Ancaster, across the Mountain Urban Area of the Regional Municipality of Hamilton-Wentworth ("the Applicant"), turning north to follow the Red Hill Creek Valley to a new interchange with the Queen Elizabeth Way ("QEW").

[8]      On January 15, 1996 representatives from the Department of Fisheries & Oceans ("DFO"), Environment Canada ("EC") and the Applicant met to discuss the application of federal legislation to the Red Hill Creek Expressway Project ("Project"). At the meeting, the Applicant was advised that if any destruction of fish habitat would result from the Project, the Applicant would be required to apply for a Fisheries Act authorization and that such an application would trigger the CEAA [the Canadian Environmental Assessment Act]. The Applicant was further advised that an environmental screening required under the CEAA could include a public review or mediation.

[9]      By letter dated January 25, 1998 the Applicant was informed that DFO, based on the information contained in a Draft Summary Report prepared by the Applicant, had come to the conclusion that the Project could have harmful impact on fish and fish habitat in violation of subsection 35(1) of the Fisheries Act. Section 35 is reproduced below in its entirely:

Harmful alteration, etc. of fish habitat 35.(1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat. Alteration, etc., authorized (2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.

Détérioration de l'habitat du poisson, etc. 35.(1) Il est interdit d'exploiter des ouvrages ou entreprises entraînant la détérioration, la destruction ou la perturbation de l'habitat du poisson. Exception (2) Le paragraph (1) ne s'applique pas aux personnes qui détériorent, détruisent ou perturbent l'habitat du poisson avec des moyens ou dans des circonstances autorisés par le ministre ou conformes aux règlements pris par le gouverneur en conseil en application de la présente loi.

[10]      In the same letter, the Applicant was advised that an authorization pursuant to subsection 35(2) would be required if it intended to go ahead with the Project. The Applicant was reminded that an application for authorization would trigger the CEAA, which in turn would cause DFO, as a responsible authority, to conduct an environmental screening of the Project.

[5]      The applicant does not accept the prothonotary's characterization of the letter from DFO. The relevant portions of that letter, therefore, read as follows:

Based on information contained in the Draft Summary Report: Red Hill Creek Expressway-North-South Section: Volume 1, November, 1997 recently provided to this office and subsequent discussions with your office, the noted proposal may have harmful impacts on fish and fish habitat in both Red Hill Creek and Marsh and in Van Wagners Marsh adjacent to Hamilton Harbour. I expect that once additional studies are completed by your office, the nature and extent of the impacts to fish and fish habitat which would result from implementing the options selected may be better defined. . . .

As you are aware, the harmful alteration, disruption and destruction of fish habitat is prohibited under Section 35(1) of the Fisheries Act. Section 35(2) provides for the Minister of fisheries and Oceans Canada (DFO) to authorize the harmful alteration, disruption and destruction of fish habitat. In order to achieve the No Net Loss of productive capacity of fish habitat guiding principal of the Policy for the Management of Fish Habitat (DFO-1986), no such authorizations are issued unless the habitat losses are compensated. . . .

You should also be aware that Section 35(2) of the Fisheries Act is included in the list of laws that trigger the Canadian Environmental Assessment Act (CEAA). This means that upon application to DFO for an authorization pursuant to Section 35(2) of the Fisheries Act, DFO becomes a Responsible Authority under CEAA and is therefore required to conduct a screening of the impact of the Project, as prescribed by CEAA, before such Authorization can be issued. . . .

[6]      The prothonotary's reasons continue:

[11]      Further meetings were held between representatives of DFO, EC and the Applicant on February 23 and 27, 1998. During the course of these meetings, discussions were held regarding the federal environmental assessment requirements, including the stream stabilization options in reference to the fish habitat, the timing of the federal permit application, the evaluation criteria and the review of the design elements of the Project to determine the interest of various government entities.

[12]      By a letter dated May 26, 1998 to the Applicant, Edwin Debruyn, a Fish Habitat Biologist with DFO, repeated its position with respect to the need for Fisheries Act authorization by writing:

Based on the information provided, I have concluded that the proposed options in the DSR to construct the Red Hill Expressway may result in the harmful alteration, disruption or destruction of fish habitat. The harmful alteration, disruption or destruction of fish habitat is prohibited unless authorized by the Department of Fisheries and Oceans (DFO) pursuant to Section 35(2) of the Fisheries Act.

Mr. Debruyn further confirmed his understanding that the Applicant would be applying for such authorization in the near future. He also advised that DFO would be initiating the screening process, which would include the circulation of the Project proposal to all federal departments having administrative and regulatory responsibility in connection thereto.

[13]      In July 1998, the Applicant submitted its application for Fisheries Act authorization. Subsequently, by letter dated October 5, 1998, the Applicant summarized its understanding as to the CEAA process. Certain relevant extracts of the letter are reproduced below:

The decision to assess need and alternatives in the screening report is discretionary for a Project like this.

Please advise us of your decision on whether or not to include an assessment of need and alternatives in the screening report. If you do include it, please indicate how you intend to address it.

The screening report that is produced at the end of March will make a recommendation on the significance of the Project to federal interests. It could also include a recommendation for a panel hearing. A penal hearing would set back the Project schedule considerably. However, we understand that any recommendations of the panel are only binding if they are within federal jurisdiction.

[14]      In April 1999, DFO was advised by EC that it had identified significant adverse environmental effect on the habitat that provides an important ecological function for migratory birds. EC concluded that the Project could have significant adverse environmental effect on migratory birds. EC also raised concerns about water and air quality issues.

[15]      About the same time, DFO became aware of substantial public concern regarding the Project. Consequently, the completion of the screening report was abandoned and on May 4, 1999 the Minister of the Fisheries and Oceans requested that his colleague, the Environment Minister, refer the Project to a review panel pursuant to subsections 25(a) and (b) of the CEAA which provide as follows:

Referral to Minister 25. Subject to paragraphs 20(1)(b) and (c), where at any time a responsible authority is of the opinion that (a) a project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, may cause significant adverse environmental effects, or (b) public concerns warrant a reference to a mediator or a review panel, the responsible authority may request the Minister to refer the project to a mediator or a review panel in accordance with section 29.

Examen par une commission 25. Sous réserve des alinéas 20(1) b) et c), à tout moment, si elle estime soit que le projet, compte tenu de l'application des mesures d'atténuation qu'elle estime indiquées, peut entraîner des effets environnementaux négatifs importants, soit que les préoccupations du public justifient une médiation ou un examen par une commission, l'autorité responsable peut demander au ministre d'y faire procéder conformément à l'article 29.

[16]      On May 6, 1999 the Environment Minister announced by press release that she had decided to refer the Project to a review panel pursuant to clause 29(1)(a)(ii) of the CEAA. The press release specifically indicates that the decision was based on the request from the Minister of Fisheries and Oceans. Subsections 28(1)(a) and (b) and 29(1)(a) and (b) of the legislation are reproduced below.

Referral by Minister 28.(1) Where at any time the Minister is of the opinion that (a) a project for which an environmental assessment may be required under section 5, taking into account the implementation of any appropriate mitigation measures, may cause significant adverse environmental effects, or (b) public concerns warrant a reference to a mediator or a review panel, the Minister may, after offering to consult with the jurisdiction, within the meaning of subsection 12(5), where the project is to be carried out and after consulting with the responsible authority or, where there is no responsible authority in relation to the project, the appropriate federal authority, refer the project to a mediator or a review panel in accordance with section 29.

Pouvoir du ministre 28.(1) À tout moment, le ministre après avoir offert de consulter l'instance, au sens du paragraphe 12(5), responsable du lieu où le projet doit être réalisé et après consultation de l'autorité responsable, ou, à défaut, de toute autorité fédérale compétente, s'il estime soit qu'un projet assujetti à l'évaluation environnementale aux termes de l'article 5 peut, compte tenu de l'application des mesures d'atténuation indiquées, entraîner des effets environnementaux négatifs importants, soit que les préoccupations du public le justifient, peut faire procéder à une médiation ou à un examen par une commission conformément à l'article 29. Loi sur la gestion des ressources de la vallée du Mackenzie (2) Dans les cas où il en est saisi en vertu de l'alinéa 130(1)(c) de la Loi sur la gestion des ressources de la vallée du Mackenzie, le ministre est tenu de soumettre l'affaire à un examen par une commission.

Mediation and Panel Reviews Initial referral to mediator or review panel 29.(1) Subject to subsection (2), where a project is to be referred to a mediator or a review panel, the Minister shall (a) refer the environmental assessment relating to the project to (i) a mediator, or (ii) a review panel; or (b) refer part of the environmental assessment relating to the project to a mediator and part of that assessment to a review panel.

Médiation ou examen par une commission Décision du ministre 29.(1) Sous réserve du paragraphe (2), dans le cas où un projet doit faire l'objet d'une médiation ou d'un examen par une commission, le ministre: a) soit renvoie l'évaluation environnementale du projet à un médiateur ou à une commission; b) soit renvoie une partie de l'évaluation environnementale du projet à un médiateur et une partie de celle-ci à une commission.

[17]      The Applicant wrote the Environment Minister on May 25, 1999 to acknowledge her decision to refer the Project to a review panel. It also raised the following three issues to be considered prior to issuance of the draft terms of reference and draft environmental assessment guidelines: (1) the scope of the Project and terms of reference for the review panel; (2) proper provincial consultation prior to referring the Project to a review panel and (3) the timing of appointment and the Applicant's interest in the selection of panel members. The Applicant's letter contained the following qualification:

While the immediacy of your pending decisions under CEAA require us to make this submission on behalf of the Region now, we point out that it is being made without our having completed an analysis as to whether there is any legal basis at all for CEAA to be applied to the completion of this undertaking. This is a matter we are currently examining and therefore the submission contained in this letter should be understood at that context.

[18]      Draft terms of reference were issued on May 29, 1999 and on June 8, 1999 counsel for the Applicant provided its comments by written submissions to the Canadian Environmental Assessment Agency.

[19]      On July 5, 1999 the Environment Minister announced her decision with respect to the membership of the review panel and its terms of reference pursuant to paragraphs 33(1)(a) and (b) of the CEAA which provide as follows:

Appointment of Review Panel 33.(1) Where a project is referred to a review panel, the Minister shall, in consultation with the responsible authority, (a) appoint as members of the panel, including the chairperson thereof, persons who (i) are unbiased and free from any conflict of interest relative to the project and who have knowledge or experience relevant to the anticipated environmental effects of the project, and (ii) may have been selected from a roster established pursuant to subsection (2); and (b) fix the terms of reference of the panel.

Commission 33.(1) Le ministre, en consultation avec l'autorité responsable, nomme les membres, y compris le président, de la commission d'évaluation environnementale et fixe le mandat de celle-ci. À cette fin, le ministre choisit des personnes: a) impartiales, non en conflit d'intérêt avec le projet et pourvues des connaissances ou de l'expérience voulues touchant les effets environnementaux prévisibles du projet; b) qui peuvent avoir été choisies sur la liste établie en vertu du paragraphe (2).

[20]      On August 4, 1999 the Applicant brought an application for judicial review with respect to a decision of the Environment Minister made on July 5, 1999 appointing members of a Review Panel and setting the Terms of Reference for the review.

[21]      In addition to challenging the above decision of the Environment Minister, the application also seeks a declaration that the Fisheries Minister acted unfairly, unconstitutionally, in breach of the rules of natural justice and beyond his jurisdiction in requesting the Environment Minister to refer the completion of the Expressway to a Review Panel, a declaration that Environment Canada is not a responsible authority under the CEAA and an order quashing the decision of the Environment Minister to refer the completion of the Expressway to the Review Panel.

[7]      The application for judicial review referred to by the prothonotary above is the application in the "original proceeding".

[8]      Notwithstanding the commencement of the original proceeding, the Review Panel continued its process.

[9]      On October 15, 1999, the Panel released its final Environmental Impact Statement ("EIS") Guidelines requirements for the preparation of an EIS by the applicant and requested that the applicant confirm its intent to prepare an EIS.

[10]      On November 4, 1999, the respondents moved for an order, among other things, striking out portions of the notice of application filed in the original proceeding that did not relate to the July 5, 1999 decision of the Minister of Environment to appoint the Review Panel and set its terms of reference.

[11]      On November 4, 1999, the applicant moved by cross-motion for an order dismissing for want of jurisdiction the respondents' motion to strike portions of the notice of application and, if required, an order granting leave to amend its notice of application and granting an extension of time to bring its application.

[12]      On November 15, 1999, the applicant commenced the second proceeding in which it sought for judicial review of a number of acts and proceedings. Those acts and proceedings may be broken down into four categories:

(i) the May 4, 1999 request by the Minister of Fisheries and Oceans to the Minister of the Environment to have the Expressway Project referred to a Review Panel and all acts and proceedings of all respondents which have occurred since May 4, 1999 (this category relates essentially to those matters that the prothonotary ordered struck from the original proceeding);

(ii) the appointment of the Review Panel members and allegations of conflict of interest;

(iii) the actions and proceedings of the Review Panel, including the issuance to the applicant on October 15, 1999, of Environmental Impact Statement Guidelines; and

(iv) future steps to be taken by the Review Panel.

[13]      On November 17, 1999, the applicant wrote to the Review Panel regarding the EIS Guidelines, advising it had no other reasonable course but to challenge "the abusive and arbitrary application of the Canadian Environmental Assessment Act to the Expressway".

[14]      The motion to strike and cross-motion filed in the original proceeding were heard by prothonotary on December 10, 1999. Because that portion of the applicant's motion for an extension of time to bring its application could only be granted by a judge, the hearing before the prothonotary was limited to the respondents' motion to strike, and the applicant's cross-motion for dismissal of the respondents' motion on jurisdictional grounds.

[15]      On December 10, 1999, the prothonotary dismissed the cross-motion and allowed in part, the respondents' motion to strike.

[16]      On January 12, 2000, the applicant wrote asking that the Review Panel agree that nothing further should be done pending the outcome of the Court hearing.

[17]      On January 26, 2000, the Review Panel decided to suspend its review of the Expressway until the applicant submitted its EIS.

[18]      A notice of constitutional question has been issued and served in each proceeding. In it, the applicant states that it intends:

[T]o question the constitutional applicability generally of the Canadian Environmental Assessment Act, and in particular sections 2, 5, 11, 15, 16, 18, 25, 28, 29, 33, 34 and 37, so as to allow a Review Panel appointed under the CEAA (and consequently the federal Minister of Environment, the Minister of Fisheries and Oceans, and the Governor in Council), to assess and determine matters within exclusive provincial legislative jurisdiction pursuant to section 92 of the Constitution Act, 1867, in this case being the need for and right of the applicant to complete its Lincoln Alexander/Red Hill Creek Expressway, an undertaking for which approval was received in 1985 following a lengthy public hearing under the Ontario Environmental Assessment Act, construction of which commenced in 1990 and which is currently 60% built.

[19]      The Attorney General of Ontario appeared through counsel at the hearing of these motions to support the applicant's position.

(i) The Appeal and Cross-Appeal from the Prothonotary's Order

The Issues and the Arguments

[20]      The effect of the prothonotary's order was to limit the scope of the original proceeding to a review of the decision of the Minister of Environment appointing members of the Review Panel and fixing the Panel's terms of reference. In so concluding, the prothonotary stated that the Court has jurisdiction to dismiss in whole or in part a judicial review application on a preliminary motion, in exceptional circumstances.

[21]      The prothonotary accepted the submission of the respondents that the decision of the Minister of Fisheries and Oceans on May 4, 1999, requesting that the Minister of Environment refer the environmental assessment to a Review Panel, and the decision on May 6, 1999, of the Minister of Environment to refer the Project to a Review Panel, were separate and distinct decisions from the decision on July 5, 1999, to appoint the members of the Review Panel and fix its terms of reference. He accepted that each decision was capable of being judicially reviewed.

[22]      The prothonotary held that only the July 5, 1999 decision was challenged within the 30-day period prescribed under subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended. In the absence of an order granting an extension of time, judicial review of the prior decisions was no longer available.

[23]      After reviewing Rule 3 of the Federal Court Rules, 1998 the prothonotary concluded that it would not be conducive to an orderly and efficient hearing of the proceeding to require the respondents to file responding material and to conduct cross-examinations on evidence that was clearly irrelevant to the subject matter of the judicial review.

[24]      Thus, a number of paragraphs were ordered struck from the notice of application and the cross-motion was dismissed. The result is that the original proceeding is now limited to a review of the decision of the Environment Minister appointing the Review Panel members and fixing its terms of reference.

(a) The Position of the Applicant on the Appeal

[25]      The applicant submitted that the prothonotary erred in striking portions of the application on five grounds. First, it asserted that the letter of January 25, 1998, from DFO to applicant, the letter of May 4, 1999, from the Fisheries Minister to the Environment Minister, and the press release of May 6, 1999, are properly characterized as preparatory steps to the legal act of appointing a Panel and investing it with jurisdiction through the terms of reference, which did not occur until July 5, 1999. The applicant further submitted that in striking out much of the declaratory relief sought, together with the grounds for those declarations, the prothonotary acted contrary to principles established by the Federal Court of Appeal in Krause v. Canada, [1999] 2 F.C. 476 (C.A.). Second, it asserted that the prothonotary failed to conclude that the ministerial acts in question were part of a continuing process which did not crystallize until the issuance of the terms of reference and appointment of the Panel on July 5, 1999. Therefore, the applicant takes the position that the application was brought on a timely basis. Third, the applicant asserted that the prothonotary mischaracterized the letter of January 25, 1998, as a decision from which judicial review ought to have been taken. Fourth, it alleged that the prothonotary erred in fact and law in concluding that the May 4, 1999 letter from the Fisheries Minister to the Environment Minister and the May 6, 1999 press release were decisions communicated to the applicant within the meaning of subsection 18.1(2) of the Federal Court Act. Finally, it asserted that the prothonotary erred in exercising his discretion in granting the relief requested on an interlocutory motion.

(b) The Position of the Respondents on the Appeal

[26]      The respondents submitted that the prothonotary exercised his discretion on correct principles and did not misapprehend the facts. They further submitted that as the order did not raise questions vital to the final issue of the case, the order should not be interfered with.

(c) The Position of the Respondents on the Cross-Appeal

[27]      In the cross-appeal, the respondents seek to strike an additional portion of the notice of application which requests the following relief: "[a] declaration that the CEAA does not apply to the completion of the Expressway, and that no review is required under the CEAA". The respondents submitted that the prothonotary, having come to the conclusion that the proper subject matter of the judicial review was the Environment Minister's decision of July 5, 1999, erred in holding that the applicability of the CEAA went to the jurisdiction of the Panel appointed on July 5, 1999. The respondents submitted that if the applicant wished to challenge the applicability of CEAA to the Project it should have done so before it made its application for authorization under the Fisheries Act, R.S.C. 1985, c. F-14, as amended. In the alternative, the respondents submitted that the Environment Minister's referral of the environmental assessment to a Review Panel was predicated on the applicability of CEAA and its applicability should have been challenged at that time. Having not challenged the applicability of the statute on either of those two occasions, the respondents argued that the applicant is now statute-barred from seeking judicial review of the applicability of the CEAA.

(d) The Position of the Applicant on the Cross-Appeal

[28]      The applicant submitted that the prothonotary was correct in declining to strike the impugned paragraph, as it is a matter that goes directly to the jurisdiction of the Minister of the Environment and the authority she exercised on July 5, 1999. It said that if CEAA did not apply to the completion of the Expressway, the Environment Minister had no jurisdiction to appoint the Panel and to set its terms of reference.

(e) Position of the Attorney General of Ontario

[29]      As noted, the Attorney General of Ontario supported the applicant's position. The Attorney General submitted that the result of the prothonotary's order was to create an artificial record before the Court: it "essentially severed what was an ongoing event". It was submitted that the particular constitutional issues which arise in this case relate to the intersection of provincial authority to determine transportation policy (and associated environmental concerns) with federal authority to consider fisheries or any other proper head of federal authority (and environmental concerns connected with those heads). It will be argued that the federal authority overstepped its jurisdiction and that issues of colourability exist. The Attorney General further submitted that in considering these types of arguments, it will be important for the Court to have the context in which the issues arose and that from that point of view, the contextual evidence is relevant.

Analysis and Conclusion re: Appeal and Cross-Appeal from Prothonotary's Order

[30]      At the outset, it is necessary to consider the appropriate standard of review to be applied when reviewing a prothonotary's order. The majority of the Federal Court of Appeal articulated the standard in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at p. 463:

. . . discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:

(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

(b) they raise questions vital to the final issue of the case.

[31]      In the present case, should the appeal not be granted, the original proceeding will be limited to a review of the decision of the Minister of Environment appointing the Panel members and fixing the Panel's terms of reference. Absent the granting of leave to amend the original application, the issues struck by the prothonotary will not be before the Court for determination. The effect of the prothonotary's decision is to preclude a hearing on the merits of those matters struck from the application. This, to apply the interpretation of the phrase "the final issue of the case" set out in footnote 15 of the Aqua-Gem decision, raises a question vital to the result of the case. Therefore I should exercise my own discretion de novo.

[32]      In so concluding, I do not accept the respondents' argument that the appeal does not raise a question vital to the result of the case, by virtue of the fact that the applicant may seek leave to amend its application. That right, in my view, does not change the nature and the effect of the prothonotary's decision.

[33]      As to the Court's jurisdiction to strike out all or part of a notice of application, as noted by the prothonotary, the leading decision is that of the Federal Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1994] 1 F.C. 588 (C.A.). The rationale for the Court's decision is instructive.

[34]      The Court noted that the former Federal Court Rules did not contain a provision for striking out what was then an originating notice of motion, and observed that the explanation for the lack of such provision could be found in the differences between actions and other proceedings. Thus, it was stated at p. 596 of the decision:

Further, the process of striking out is much more feasible in the cases of actions because there are numerous rules which require precise pleadings as to the nature of the claim or the defence and the facts upon which it is based. There are no comparable rules with respect to notices of motion. Both Rule 319(1), the general provision with respect to applications to the court, and Rule 1602(2), the relevant rule in the present case which involves an application for judicial review, merely require that the notice of motion identify "the precise relief" being sought, and "the grounds intended to be argued". The lack of requirements for precise allegations of fact in notices of motion would make it far more risky for a court to strike such documents. Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the court. Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike.

[35]      The Court continued at p. 597:

The contrast between actions and motions in this court is even more marked where the motion involved is for judicial review . . . . Unlike the Rules pertaining to actions, the 1600 rules pertaining to judicial review provide a strict timetable for preparation for hearing and a role for the court in ensuring there is no undue delay. Time limits fixed by the rules can only be exchanged by a judge, not by consent. (Rule 1614(2)). The court can of its own motion dismiss applications due to delay (Rule 1617) and can also take the initiative in correcting originating documents (Rule 1605). This all reinforces the view that the focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.

[36]      Given the focus on moving applications along to the hearing stage as soon as possible, the approach of the Court should be to discourage, not encourage, preliminary motions to dismiss applications for judicial review.

[37]      Having said that, the Court of Appeal did acknowledge an inherent jurisdiction to strike, stating at p. 600:

This is not to say that there is no jurisdiction in this court either inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. . . . Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.

[38]      The respondents' motion to strike was predicated on the basis that the impugned portions of the application raised grounds and sought relief with respect to matters which were not the subject matter of the July 5, 1999 decision but which were the subject of earlier decisions made more than 30 days prior to the date that the application in the original proceeding was filed.

[39]      I note that even in actions where, as the Court of Appeal noted in David Bull Laboratories, supra, striking out is much more feasible, a limitation defence is not sufficient ground to strike out a statement of claim, but rather is a defence to be raised in a statement of defence. By analogy, where a proceeding is commenced by application, any issue of application of a time bar ought, in the usual case, to be argued at the hearing of the application, and not on a motion to strike.

[40]      That is not to say that in no case could an application be struck for being commenced out of time, but it would, in my view, be only in an exceptional case.

[41]      In the present case, in order to determine that the impugned portions of the application were brought out of time, the Court would have to reject the argument of the applicant that the letter dated July 25, 1998 from DFO to the applicant, the letter dated May 4, 1999 from the Fisheries Minister to the Environment Minister, and the press release dated May 6, 1999 (and I would add the decision reflected in the press release) are preparatory steps to the legal act of appointing a Panel and investing it with jurisdiction through terms of reference. The applicant states that such argument is based upon, and applies the reasoning of, the Federal Court of Appeal in Krause v. Canada, supra, to the effect that in circumstances such as the present acts implementing prior decisions may be reviewed. The applicant also relies upon the decision of the Federal Court of Appeal in Alberta Wilderness Association et al. v. Canada (Minister of Fisheries and Oceans) (1998), 238 N.R. 88 (F.C.A.).

[42]      The Court would also have to reject the applicant's argument that the process which the applicant seeks to put before the Court is a continuing one. The applicant submits that the Minister of Fisheries' letter recommending a Review Panel, the Minister of Environment's announcement that the Project would be referred to a Panel, and the Minister's decision to appoint a Panel and clothe it with jurisdiction are together a "continuing process", whereby the CEAA is applied to the Expressway Project. As the CEAA contemplates a series of steps in relation to every proposed project, the steps taken by the various Ministers are "more in a nature of a continuing process" which affects the applicant's legal rights. As a result, the reasoning of this Court in Puccini v. Canada (Department of Agriculture, Corporate Administrative Services, Director General), [1993] 3 F.C. 557 (T.D.) applies. Put another way, the applicant states that until it knew what kind of body would review the project, who would be appointed to it, and what it was to consider, the referral to the Panel was not legally complete.

[43]      For the purpose of this motion, it is not necessary, or appropriate, for me to reach any conclusion upon the ultimate merit of these arguments.

[44]      It is sufficient for me, in the exercise of my discretion, to conclude that the applicant's position is not bereft of any possibility of success and I so conclude. This is not an exceptional case so as to warrant striking portions of the notice of application. Additionally, I note that striking portions of the application would not assist the Court in dealing with the constitutional issues which remained after portions of the application were struck.

[45]      It follows from the conclusion that this is not an exceptional case that I will allow the appeal from the order striking out portions of the original application and will also dismiss the cross-appeal.

[46]      For certainty, I note that this decision in no way limits or restricts the right of the respondents to advance the position to the judge hearing the application that portions of the application were brought out of time and should be dismissed on that ground alone, or to advance the arguments of waiver and delay which were advanced to the Court during the course of this hearing.

[47]      To the extent that authorities such as [1976] 2 S.C.R. 739">PPG Industries Canada v. A.G. (Canada), [1976] 2 S.C.R. 739 and [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561, were urged upon me, I conclude that the discretion referenced therein is one to be exercised by the judge on the hearing of the application on its merits.

(ii) The Motion for Leave to Amend the Notice of Application in the Original Proceeding

[48]      The applicant moves for leave to amend the notice of application filed in the original proceeding, so as to specify that it includes a review of the Fisheries Minister's request of May 4, 1999, and the decision of Environment Minister on May 6, 1999, to have the Project referred to a Review Panel and, if necessary, seeks leave to extend the time for the amendment to be made.

[49]      The applicant advances this position in the alternative to its position on the appeal of the order of the prothonotary striking portions of the original application.

[50]      In view of my decision on that appeal, it is not strictly necessary for me to rule on the motion to amend. However, as counsel for both the applicant and the respondents requested that I indicate what my decision would have been had I decided the appeal differently, I will do so with a brief explanation.

[51]      It is common ground that the legal principles applicable to this motion for leave to amend are those set out by the Federal Court of Appeal in Grewal v. M.I.C., [1985] 2 F.C. 263 (C.A.), and Independent Contractors and Business Associations v. Canada (Minister of Labour) (1988), 225 N.R. 19 (F.C.A.). Applying those principles, I would grant leave to amend, and the necessary extension of time. I would also grant leave pursuant to Rule 302, in respect of the Fisheries Minister's request of May 4, 1999, and the press release and underlying decision of May 6, 1999.

[52]      Nevertheless, I would not grant leave to assert that authorization is not required for the Expressway Project under subsection 35(2) of the Fisheries Act, or to assert that the need for that authorization did not trigger the application of the CEAA.

[53]      In argument in support of the motion for leave to amend, counsel for the applicant stated that the applicant sought only an extension in the order of 60 days. The applicant submitted that its ability to challenge the need for the Fisheries Act authorization would "live or die" on the basis of the applicant's submission that until early May of 1999, no "decision" within the meaning of section 18.1 of the Federal Court Act had been made with respect to the need from Fisheries Act authorization. In concluding that I would not give leave to amend the original proceeding to allow the applicant to assert that no Fisheries Act authorization is required, I reject the submission that until early May of 1999, no "decision" was made in this regard.

[54]      The evidence with respect to the issue of Fisheries Act authorization is before the Court in detail. Much of it is summarized in the reasons of the prothonotary quoted earlier.

[55]      I would only add that the Regional Municipality accepted the need for Fisheries Act approval at an earlier stage of the construction project as evidenced by the fact that it sought and in late June of 1995 obtained, an authorization pursuant to subsection 35(2) of the Fisheries Act with respect to completion of the Dartnall Road Interchange portion of the Lincoln Alexander Expressway.

[56]      Thereafter, when discussions began between representatives of the Region and the federal authorities in 1996 with respect to the portion of the Expressway now at issue, the Region "reiterated the fact that the Red Hill Creek Expressway will cause habitat destruction and that a compensation will be developed in consultation with MNR and DFO". Ultimately, in July of 1998, the Region forwarded its application for authorization under the Fisheries Act. This was done under cover of a letter dated July 24, 1998. The letter stated "this early submission will facilitate the approval process by providing DFO with the ability to initiate a screening under the Canadian Environmental Assessment Act". The letter continued, "the Region acknowledged the requirements of the Canadian Environmental Assessment legislation in developing the impact assessment process that is currently underway."

[57]      In short, apparently being of the view that habitat destruction would be caused (so that compensation would be required under the Fisheries Act), having received a response to the Draft Summary Report to the effect that indeed the Project might have harmful impacts on fish and fish habitat, and on the basis of that response, choosing to apply for approval under the Fisheries Act, the applicant cannot now assert and rely on the absence of a more formal decision which its own actions, in effect, pre-empted. I accept counsel for the respondents' submission that prior to the issuance of the Review Panel's terms of reference, there was no demonstration of any intent to seek judicial review with respect to the requirement of Fisheries Act approval or the application of the CEAA.

(iii) The Motion to Strike Portions of the Notice of Application Filed in the Second Proceeding

[58]      The substantive portions of this notice of application is attached as an appendix to these reasons.

[59]      The respondents divide the matters asserted in the application into five categories. They are: first, those portions which allege matters struck from the application filed in the original proceeding; second, matters going to the appointment of the members of the Review Panel; third, the consideration and issuance to the applicant of the Environmental Impact Statement Guidelines; fourth, matters relating to future acts; and fifth, allegations that are scandalous and vexatious. I will consider each in turn.

[60]      In considering this motion I again note that the jurisdiction to strike is as set out by the Federal Court of Appeal in David Bull Laboratories (Canada) Inc., supra.

[61]      With respect to the first category of matters, the respondents seek to strike out those matters that have been restored by my disposition of the appeal from the prothonotary's order. Accordingly, it is not necessary for me to consider if they should be struck from this proceeding. To the extent identical matters are raised in the second application, it would be appropriate to stay those allegations, and I will so order.

[62]      With respect to that portion of the second application which challenges the appointment of the Review Panel members on grounds of conflict of interest, in oral argument the respondents took position that if these matters are to be addressed, the applicant should seek leave to amend the original proceeding because these matters more properly relate to matters at issue in the original proceeding.

[63]      By consent, these applications are to be heard together. Therefore, I do not believe that it is necessary for the applicant proceed as the respondents propose.

[64]      As to the allegations that members of the Review Panel are in a conflict of interest, on the evidence before me those allegations of conflict of interest cannot, in my view, be said to be bereft of any chance of success. Therefore, these allegations should be dealt with by the judge who hears these matters. In consequence, I would not strike the allegations from the second proceeding.

[65]      With respect to the portions of the second application which deal with the EIS Guidelines, the respondents argue that these matters should be struck, or stayed on the following grounds. The respondents characterize the guidelines as being simply the first step in the environmental assessment process, which will involve several stages before the final report of the Panel is issued. The respondents assert that the guidelines are not mandatory, only directive. As they are directive only and within the Panel's jurisdiction, they are not subject to judicial review. Further, or in the alternative, the respondents state that the EIS Guidelines do not affect the applicant's legal rights. As a result, there is no justiciable issue to be determined by the Court. Finally, in the alternative, the respondents say that judicial review of the guidelines is premature in view of the Review Panel's decision to suspend the environmental review process. It is said that depending on the outcome of the judicial review of the terms of reference, any challenge to the guidelines may become moot. On this ground, the respondents ask that the application for judicial review of the guidelines be stayed.

[66]      In my view, these are arguments which should be addressed to the judge hearing these applications. This is not such an exceptional case that the allegations in respect of the EIS Guidelines should be struck or stayed.

[67]      As to those parts of the application which the respondents assert challenge future acts, directions and proceedings, the respondents say that these are not acts, decisions or proceedings which are capable of being the subject of judicial review at this time. The applicant responds that it seeks a preventative remedy specifically envisioned by section 18 of the Federal Court Act, which does not require that there be a decision or order actually in existence as a prerequisite to its exercise.

[68]      In my view, this is also an issue to be determined by the judge hearing these applications.

[69]      More troubling are those portions of the second application which the respondents seek to strike out on the grounds they are said to be scandalous, frivolous or vexatious. These are paragraphs which allege that the motivation for the actions and decisions of the respondent Ministers was improper. The respondents state that in the absence of any evidence to support these allegations, they are scandalous, frivolous and vexatious or otherwise an abuse of the process of the Court and should be struck.

[70]      The applicant responds that the grounds are not scandalous, frivolous or vexatious. It points to some evidence to support the allegations and asserts they should not be struck on a preliminary motion except in the clearest of cases.

[71]      I have not been satisfied that this is such an exceptional case as to justify striking the allegations from the notice of application. It is neither plain nor obvious to me that the allegations will fail, nor can I characterize the allegations as being bereft of any possibility of success.

[72]      In the event that the judge hearing these allegations is of the view that they were not properly substantiated, the proper remedy will be found in the award of costs.

Costs

[73]      As noted at the outset, during the course of the hearing I dismissed the appeal from an order of the prothonotary refusing the applicant leave to file a further affidavit in support of its motion for leave to amend, and dismissed a cross-appeal by the respondents from the prothonotary's order of costs on that motion. At that time, I reserved the issue of the costs of that appeal and cross-appeal.

[74]      With respect to those matters, and all of the motions dealt with in these reasons, I am of the view that the entire issue of costs should be left and reserved to the discretion of the judge hearing these applications on their merits.

Conclusion

[75]      As the applicant has been substantially successful on these procedural motions, I direct that within ten days, counsel for the applicant file with the Court an order reflecting the matters decided in these reasons. That order should provide that the form of the order has been consented to by counsel for the respondents. If difficulty is encountering settling the terms of the order, they may be spoken to.

[76]      Counsel has also requested that I give directions with respect to the scope of documentary disclosure. Counsel should arrange through the Registry a time for the hearing of that matter before me.

OTTAWA, Ontario

April 6, 2000

    

     Judge