Vandenberg v. Canada (Attorney General), docket T-1963-95

    

     T-1963-95

B E T W E E N:

     JOSEPH VANDENBERG

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

CAMPBELL J.

     Let the attached transcript of my Reasons for Decision delivered orally from the Bench in Edmonton, Alberta, the 8^th day of May, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.

                        

                         Judge

OTTAWA

May 27, 1997

THE COURT:

The issue before me arises from the letter of May 15th, 1995, which is, in effect, the decision which applies to the application here by Mr. Joseph Vandenberg. I intend to give my reasons on an isolated point orally while it is fresh in my mind, and I think it is important we move forward from this decision to try and consider other factors in this case.

The isolated issue that arises is whether on the face of this decision of May 15th, 1995, there is an ambiguity which amounts to an error in law. Firstly, it is important to note that the first decision that was made purports to be, as the Crown has argued, a decision under Section 4.(7)(a) of the Regulations. The question arises here as to whether on the face of it this particular decision is a cancellation or a suspension.

The evidence which had been tendered as an explanation for what was intended comes from the decision-maker's own affidavits, which were filed, and the cross-examinations on those affidavits. I have been referred to two specific portions of these affidavits. In particular, in the Respondent's Volume I at page 6 and further in the Respondent's Volume II at pages 169 and 170.

In both those references, the decision-maker refers to the word "suspension," not "cancellation," and, in fact, the implication is that this was a decision made which would allow Mr. Vandenbergto regain his license at some further point in time.

If I may say so, if I put weight on those two particular passages, there is definitely an ambiguity with what is referred to here on the face of the decision, and that is that it purports in the first instance to say that it is a decision under Section (a), being a refusal. The situation gets worse.

On the face of this May 15th letter, immediately following the words contained in this second paragraph, which are that as a result, the Department is invoking subsection 4.(7) of the Regulations, in specific, 4.(7)(a), the words that next appear are:

     "And your permit request is denied on conservation grounds."

Under Section 4.(7) there are three provisions, (a), (b), and (c). The first is to refuse to issue a permit, the second is to cancel a permit, and the third is to cancel, amend, or suspend a permit. In none of these provisions does the word "deny" appear. That is an ambiguity.

By the use of the word "conservation," which is a term which is only found in Section 4.(7)(c), I find that an implication arises, and that is that it is intended to fall under Section 4.(7)(c), which is a direct contradiction to the stated provision the decision was made under, which is Section 4.(7)(a). This is another ambiguity.

Yet even a further ambiguity arises, and that is the use of what purports to be Section 4.(7.2)(b). Cited in this letter of May 15th, 1995, is a notice that Mr. Vandenberg has a right to appeal the decision, and 4.(7.2)(b) is cited, and accordingly, an address is given, and I think the expectation is on the part of the decision-maker that he made a decision which is appealable.

That subsection (7.2)(b), however, only refers to what is set out in the initial paragraph of this section, and that is a decision under Section (7)(c), so the ambiguity here is while on the face of this letter, the decision is cited as being made under Section 4.(7)(a), the decision-maker cites as a ground of appeal that which can only arise under Section 4.(7)(c). This is yet another, I think, frankly, after scrutinizing the list, a conclusive ambiguity.

On the face of it, there is an error of law. It is remarkably unclear as to which provision this decision was made under.

A second argument has been raised. It is ancillary, but I should refer to it, because it is important. Counsel for the decision-maker's department basically says that, well, no fault, no harm was done here. In fact, Mr. Vandenberg got what he was not entitled to, and that is the opportunity for a hearing. His lawyer sent a couple of letters. Indeed, he did get that, and, in fact, it was denied. Then we move to the meaning behind the words used in Section (7.2)(b), which is, "provided with the opportunity to be heard."

Whether properly provided or whether gratuitously provided, it appears on the face here that the decision-maker and the department under which he was acting or the authority under which he was acting was prepared to grant a hearing as described in that subsection. So following upon that, one would expect the provision to be met.

The argument is that the words "to be heard" do not necessarily mean oral. In fact, they can mean written. In fact, looking at the Pocket Dictionary of Canadian Law by Dukelow and Nuse,which is a Carswell publication, the definition of hearing used there, which I think is the proper definition to consider, states:

"1, Investigating a controversy; 2, Includes a trial; 3, In a broad sense includes making written representations."

On this point, I looked at two letters, one was dated June the 7th, 1995, the other June the 15th, 1995, both from Mr. Vandenberg's lawyer written to the person who was identified as the appeal decision-maker, effectively asking, in my view, and clearly signalling a request to give submissions.

They are generously written, obviously not to inflame, but there is no doubt in the world about it. Mr. Vandenberg wanted another chance to put his points forward. In fact, he did not get that. There were no responses to those letters. All that was done was then a further decision was made.

This colours the situation somewhat, because even if it was only a gratuitous allowance, it was not followed through upon. I do not think that it is the paramount concern in this case, but it is definitely a concern. In fact, whether required or allowed, this is, as well, an error in law.

Now, a question arises as to what is the impact of this? There are a series of options presented, but I think the option of choice is for Mr. Vandenberg to have a rehearing before a decision-maker -- and I am not going to designate who it is -- with authority to act under this particular provision of the Regulations. My reasons are these: That on the face of it there is a manifest ambiguity, which is as I have said. I do not think it warrants simply sending it back to the decision-maker for further clarification, because I can see that further clarification may not be easily found. The rehearing, I think, is necessary.

On the point of what evidence, I do not think it makes much practical sense, and I think it makes good sense to have the hearing on the merits apply on the facts as they exist today, that being because, one, it is fair for Mr. Vandenberg, but, two, as has been pointed out, what we are talking about here is a yearly licensing provision. There is no sense going back and considering what it was in 1995. I think it makes sense to consider what it is today in 1997.

So for these reasons regarding this decision, May 15th, 1995, I set this decision aside and the Order made in this letter, whatever it might be, and refer the matter back for a rehearing to a person able to make this decision under Section 4.(7) of the Regulations. I direct that the facts to be considered on this rehearing are those that exist -- and, indeed, I think it is only fair to say -- at the time of the rehearing.

There may very well be a lapse between now and that date. I think that what is needed is a hearing on the merits as they exist at the time that the decision-maker considers the case, so the facts as they exist at the time of the rehearing is proper.

That deals with Mr. Joseph Vandenberg.

MR. RENOUF:

I wonder if I could make one further application with respect to Mr. Joseph Vandenberg, my Lord.

THE COURT:

Yes, go ahead.

MR. RENOUF:

That is as your Lordship has seen from a review of the affidavits and the evidence that some of these personnel with the Department of the Environment Mr. Vandenberg was dealing with were wearing two hats. They were being decision-makers, and they were being investigators.

Mr. Spencer was, among other things, involved in executing a search warrant of Mr. Vandenberg's place back in 1993. We have raised that issue in the written materials dealing with a matter that we now will not get to, which was that the decision was in part motivated by bias against Mr. Vandenberg or that there was a reasonable apprehension of bias for an objective observer --

THE COURT:

You want somebody else other than him?

MR. RENOUF:

That is what I'm suggesting.

THE COURT:

Any objection to that on the face of it?

MR. LAMBRECHT:

Well, sir, the Respondents have traversed the submission with respect to bias. I have got an argument on that in its fullness --

THE COURT:

I think it is just a question of directions. I did not rule on this point in what I have just said. It can be an issue which I think I still have jurisdiction to make.

I do not think I have to find a bias in order to make a direction that it be someone else. I did not say that it had to be when I first made the decision on the reference back, but there is a request now for just a direction that it be someone else.

MR. LAMBRECHT:

If I understand the direction, it is that the matter will go back to the person authorized --

THE COURT:

All I said was a person.

MR. LAMBRECHT:

Yes, and that section, so we are dealing with a decision-maker on the request for a permit?

THE COURT:

No, it is -- well, I think -- yes, that's right. That is right. There was an application made back in 1995. That is what brings the case forward for a decision. I said the decision was ambiguous. It has been quashed, so I am saying that on whatever it is that Mr. Vandenberg intended at that time, there is a rehearing.

MR. LAMBRECHT:

Sir, I think it is my submission, would be brief, that it is unnecessary to make an additional direction that the matter be heard by a decision-maker other than the original one.

THE COURT:

In addition to what I have just said, an argument has been raised as to the need for an additional direction, and that is that, in fact, the decision-maker should not be the same person that has made the original decision, being Mr. Spencer.

In matters of Judicial Review, it is very common on a reference back to have a reference for rehearing to a different constituted board, in particular, immigration matters where decisions have been quashed. I think it is good practice, because then it does not allow yet another argument to be raised that even on the rehearing that there is a potential bias. I think, therefore, the case would warrant being cleansed of that possible concern. I see no reason why someone else cannot do this, so, accordingly, I direct that it not be Mr. Wayne Spencer.