Date: 20101019
Docket: T-1468-10
Citation: 2010
FC 1021
Toronto, Ontario, October 19, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ANNAMARIA
VALASTRO
Applicant
and
THE HAMILTON PORT AUTHORITY
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant, Ms. AnnaMaria Valastro, is seeking an interlocutory injunction to
restrain the Respondent, the Hamilton Port Authority (HPA), from proceeding
with the Farr Island Project (also referred to as the Farr Island Reconfiguration)
in order to give her time to file a petition under the Auditor General Act,
R.S.C, 1985, c. A-17 (the AGA) before Farr Island is submerged.
[2]
Farr Island is a 30 by 35 meter man-made
island in the Hamilton Harbour, which was built in the 1950s as a hydro tower platform. It
has not supported any hydro towers since the 1980s, and is now a vacant island
inhabited by migratory Double-crested Cormorants (cormorants). The Farr Island
Project is one aspect of a larger plan by the HPA to regenerate the Hamilton shore line. Simply put, the Farr Island Project is a plan
to re-grade Farr Island to below water-level, and to add new
materials to imitate the shoals which were once located along the north shore
of the Harbour. A consequence of submerging Farr Island will be the loss of the summer habitat to approximately 800
nesting pairs of cormorants.
[3]
Ms. Valastro is
opposed to the Farr Island Project. She fears that that there would be a
negative impact on the cormorants who would have otherwise used Farr Island as a nesting site next year. Ms.
Valastro is very concerned that an adequate environmental assessment has not
been carried out as required by the Canadian Environmental Assessment Act,
S.C. 1999, c.33 (CEAA). In particular, she submits that there has not been a
full consideration of the cumulative impact of the loss of habitat for the Farr Island cormorants. For this reason, she seeks
an injunction from this Court to prevent HPA from destroying the island “to
allow room for a petition process”.
[4]
Unfortunately, this
Court is unable to assist Ms. Valastro. There are two key reasons why her
motion must fail. Firstly, Ms. Valastro’s application for injunctive relief is
not based on any action or application before this Court – a prerequisite to an
interim injunction. Secondly, even if I could entertain the motion, Ms.
Valastro has not persuaded the Court that irreparable harm would flow from the
execution of the Farr Island Project.
No
Proceeding before this Court
[5]
The first problem
with Ms. Valastro’s motion is that she has not commenced any proceedings that
would fall within the jurisdiction of the Federal Court. The power of the
Federal Court does not extend to granting interim injunctions absent some
recognized legal interest or right which is within the Court’s power to
adjudicate. Section 18.2 of the Federal Courts Act and Rule 372 of the Federal
Courts Rules establish that a motion for injunctive relief cannot be
obtained before the commencement of a proceeding. Quite clearly, Ms. Valastro
has not commenced a proceeding and her motion must fail on this basis alone.
[6]
As I understand the
core of her concern, Ms. Valastro disputes two decisions:
- The
decision of the HPA to implement the Farr Island Project with the
submersion of Farr Island as its key component;
- The
decision of the Canadian Environmental Assessment Agency (the Agency)
dated August 16, 2010 (the Screening Decision).
[7]
The Farr Island
Reconfiguration was a decision of the HPA. The HPA is, unquestionably, a
“federal board, commission or tribunal” for purposes of the Federal Courts
Act, R.S.C. 1985, c. F-7. Ms. Valastro has known of the HPA’s decision to
submerge Farr Island since at least April 2010. She could
have, but never did, commenced an application for judicial review of that
decision.
[8]
The Farr Island
Project required an environmental assessment, pursuant to provisions of the CEAA.
In the Screening Decision dated August 16, 2010, the Agency determined that
this project was not likely to cause significant environmental impacts. Notice
that an environmental assessment had been commenced was available on the
Agency’s website from July 30, 2010. Ms. Valastro could have intervened at this
stage but did not. This decision, once rendered, was made publicly available.
If, as she now claims, the HPA had “misrepresented the full extent of the
project and failed to represent all available options for public
consideration”, or if she felt that the Screening Decision was unreasonable,
she could have sought judicial review. She did not do so.
[9]
Having failed to
commence an application for judicial review of either of these two decisions,
Ms. Valastro has decided that her only avenue is to commence a petition
pursuant to the AGA. Under the AGA, the Auditor General has an
obligation to provide “sustainable development monitoring and reporting” (s.
21.1). Specifically, s. 22 of the AGA permits a resident of Canada to petition the Auditor General “about an environmental
matter in the context of sustainable development”. Upon receipt of such a
petition “about an environmental matter in the context of sustainable
development that it the responsibility of a category I department” (assumed, in
this case, to be the Department of Environment), the Auditor General forwards
the petition to the responsible Minister for a response. Assuming that the
petition proceeds, the only obligation on the Minister is to reply to the
petition. There is no authority, in the AGA or otherwise, for Ms.
Valastro’s submission that the Minister would be required to reconsider the
Screening Decision. The only obligation on the Minister is to provide a written
response to the Auditor General. Thus, even if Ms. Valastro had commenced her
petition (which she has not), the petition could not give rise to a process
that would reverse the decision to submerge Farr Island.
[10]
In sum, there is clearly no underlying
proceeding for which this injunctive relief can be granted. For this reason,
her motion must fail.
No
Irreparable Harm
[11]
Even if I were to
conclude that there is a “proceeding” that could give jurisdiction to this
Court to consider the motion for injunctive relief, Ms. Valastro fails to meet
the requirements for obtaining an interim injunction.
[12]
As taught by the Supreme Court in RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, paras. 40, the test
for an interlocutory injunction requires the court to consider three factors:
1) Whether the applicant has presented a
serious issued to be tried or, in some cases, a strong prima facie case;
2) Whether the applicant would suffer irreparable
harm if the injunction were refused; and
3) Whether the balance of convenience or
inconvenience lies in granting or refusing to grant the injunction
[13]
The tripartite test
is conjunctive; an applicant must satisfy all three elements of the test before
it will be entitled to relief. Failure to meet all three components results in
the motion being dismissed.
[14]
In this case, it is
unlikely that Ms. Valastro can meet any of the elements. However, the factor
that is most clearly against her is that of irreparable harm.
[15]
The irreparable harm
alleged by Ms. Valastro is that the cormorants that would otherwise nest and
breed on Farr Island would lose their habitat. The first
point to note is that Ms. Valastro’s application is not supported by any expert
reports. Her affidavit is replete with opinions about how this Farr Island
Project would negatively impact cormorants, none of which are supported by
expert opinion. Ms. Valastro is a very knowledgeable citizen, but not a
scientist nor an expert.
[16]
The evidence before
me is that, while the cormorant population in the Great Lakes region was
decimated in the 1960s and 1970s (to a low of 135 nests), cormorants have made
an amazing recovery. As of 2005, it was estimated that there were about 113,000
nesting cormorants; they are not an endangered or at-risk species. Indeed, the
evidence shows that the rapid population growth has resulted in public concerns
regarding the impact to the environment.
[17]
During her oral
submissions, Ms. Valastro agreed that the affected cormorants would disperse to
other locations. Ms. Valastro also acknowledges that, because the Farr Island
Project would be carried out while the cormorants are wintering elsewhere, no
birds would be directly and immediately killed by the submergence of Farr Island. The problem, in her view, is that,
absent further study, we do not know where the cormorants will go or whether
the cormorants will have an adverse impact on their new nesting site.
Unfortunately, Ms. Valastro has presented nothing beyond speculation that
demonstrates that there will be a cumulative negative impact caused by the
submergence of Farr Island, and the relocation of the cormorants.
Conclusion
[18]
Since either the lack
of an underlying proceeding or the failure to demonstrate irreparable harm is
sufficient to dispose of this motion, I need not consider any of the other
arguments of the HPA. The motion will be dismissed.
[19]
The HPA seeks its
costs of this motion. At the hearing of this motion, I asked counsel for the
HPA to provide me with an estimate of costs. I was advised that the two legal
firms involved will bill approximately $87,000 for this motion. Counsel thought
that a $50,000 award of costs would be appropriate. Costs of $50,000 to oppose
a motion that was clearly without merit are far in excess of any reasonable
costs award. In the circumstances and in my discretion, I am not prepared to
award any costs to the HPA.
ORDER
THIS COURT ORDERS that:
1.
The motion is dismissed; and
2.
There will be no
award of costs.
“Judith
A. Snider”
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