Date: 20110301
Docket: T-905-10
Citation: 2011
FC 240
Ottawa, Ontario, March 1, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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SASKATCHEWAN WATERSHED AUTHORITY
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Applicant
(Respondent to Motion)
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
(Respondent to Motion)
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REASONS FOR ORDER AND
ORDER
[1]
This is a
motion by the Town of St. Brieux, the R. M. of Lake Lenore No. 399, the Village
of Lake Lenore, St. Brieux Realty Inc., the Lakeview Property Owners
Association Ltd., Lake Lenore Wildlife Federation and the St. Brieux Regional
Park (the appellants) made pursuant to Rule 51 of the Federal Courts Rules,
SOR/98-106, for an order allowing the appeal and setting aside the order of
Prothonotary Roger Lafrenière dated August 20, 2010 for and an order granting
the appellants’ intervenor status pursuant to Rule 109 of the Federal Courts
Rules. The appellants are not appealing the order with respect to being
added as parties respondents.
[2]
The appellants
made a motion to Prothonotary Lafrenière to be added as respondents in the
judicial review application commenced by the Saskatchewan Watershed Authority
against the Attorney General of Canada (Court file T-905-10).
[3]
The underlying
judicial review application by the Saskatchewan Watershed Authority (SWA)
brought into question the validity of an Inspector’s Direction made under the
authority of subsection 38(6) of the Fisheries Act, R.S., 1985, c. F-14.
The Direction purports to direct SWA et al to “immediately take all reasonable
measures consistent with safety and with the conservation of fish and fish
habitat.” In other words, preventing the saline water from flowing into Lenore Lake.
Brief Statement of Factual Background
[4]
Basin Lake Watershed is a closed basin
with no natural outlets for water to flow out of the watershed. In the last
number of years, heavy levels of precipitation have caused flooding problems in
the basin.
[5]
The Basin
Lake Watershed has a number of lakes, some of which are saline and some fresh.
Water flows naturally from one lake to another, depending on the amount of
precipitation. As one of the issues in this motion is the flow of water into Lenore Lake from elsewhere, it
should be noted that one of the natural paths water flows through is between Houghton Lake and Lenore Lake. It is accepted that the water of Lake Houghton is saline while Lake Lenore is much less so. It is suggested
that the more saline water of Houghton Lake would be injurious to
the fish of Lenore
Lake. These fish in question are
not fish natural to Lenore Lake but are raised
artificially in a rearing pond. Lake Lenore is then stocked with these
fish.
[6]
Crossing
the path of natural water flow between Houghton Lake and Lenore Lake is grid road #777. It is a gravel raised-bed
roadway and is part of the infrastructure of the province of Saskatchewan.
[7]
There are
two culverts installed under grid road #777 in the area/path where water flows
naturally between the lakes. The culverts were installed under grid road #777
so that the natural flow of water would continue and so that lands upstream of
the culverts would not be flooded.
[8]
On May 10,
2010, the Inspector’s Direction was issued, pursuant to subsection 38(6) of the
Fisheries Act, to SWA; Ms. Quarshie, chairperson of the board of
directors of SWA; and Mr. Dybvig, acting president of SWA, read in part with
respect to remedies or measures to be taken as follows:
MEASURES TO BE TAKEN
Under the authority given to me pursuant
to subsection 38(6) of the Fisheries Act, I hereby direct the
Saskatchewan Watershed Authority and Ms. Elizabeth Quarshie in her capacity as
Chairperson of the Board of Directors for the Saskatchewan Watershed Authority
and Mr. Wayne Dibvig in his capacity as Acting President of Saskatchewan
Watershed Authority, named above to immediately take all reasonable measures
consistent with safety and with the conservation of fish and fish habitat to
prevent the above mentioned occurrence or to counteract, mitigate, or remedy,
any adverse effects that have resulted or may reasonably be expected to result
from the above mentioned occurrence, including
1) Implementation of temporary
or interim measures to as soon as reasonably possible stop the discharge of
a deleterious substance, to wit waters containing total dissolved solids at or
exceeding 8316 mg/L, presently being deposited into Lenore Lake, and
2) To
ensure that these temporary measures are implemented and maintained each and
every year until a more permanent solution is fully implemented, and
3) To
develop and implement a plan for a long term and permanent solution to ensure
that deleterious waters containing total dissolved solids at or exceeding 8316
mg/L are not deposited into Lenore Lake or other waters frequented by fish, and
4) To
provide a copy of the long term plan to Environment Canada at Room 300 – 2365
Albert Street, Regina, Saskatchewan S4P 4K1 Attention Environmental
Enforcement Directorate – Operations Manager, 30 days prior to implementation
of any of the provisions of the plan, and
5) Saskatchewan
Watershed Authority shall submit quarterly reports to Environment Canada at
Room 300 – 2365 Albert Street, Regina, Saskatchewan S4P 4K1 Attention
Environmental Enforcement Directorate – Operations Manager, no later than 30
days following each calendar quarter (Jan – March, April – June, July – Sept.,
Oct – Dec.) detailing all works and undertakings carried out in accordance with
this Inspector’s Direction. The first quarterly report shall be submitted on or
by 30 July 2010, and the last quarterly report shall be submitted no later than
30 days following the full implementation date of the plan and shall state the
date that the plan was fully implemented. The reports shall specify dates when
each activity was carried out and completed, and
6) Saskatchewan
Watershed Authority shall submit a Final Report upon completion of these
measures to Environment Canada at Room 300 – 2365 Albert Street, Regina,
Saskatchewan S4P 4K1 Attention Environmental Enforcement Directorate –
Operations Manager, which shall be submitted on or before 90 days after
completion of these measures and no later than 1 September 2015. This Final
Report shall summarizing (sic) all works and undertakings carried out as due
diligence to comply with this Inspector’s Direction.
Issue
[9]
Should the
decision of the Prothonotary be set aside on appeal, pursuant to Rule 51 of the
Federal Courts Rules?
Standard of Review
[10]
The
Federal Court of Appeal in Merck & Co. v. Apotex Inc., 2003 FCA 488
set out the standard of review of a prothonotary’s decision as follows at
paragraph 19:
To
avoid the confusion which we have seen from time to time arising from the
wording used by MacGuigan J.A., I think it is appropriate to slightly
reformulate the test for the standard of review. I will use the occasion to
reverse the sequence of the propositions as originally set out, for the
practical reason that a judge should logically determine first whether the
questions are vital to the final issue: it is only when they are not that the
judge effectively needs to engage in the process of determining whether the
orders are clearly wrong. The test would now read:
Discretionary
orders of prothonotaries ought not be disturbed on appeal to a judge unless:
a)
the questions raised in the motion are vital to the final issue of the case, or
b)
the orders 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.
[11]
In my
opinion, the issue of whether or not the appellants should be made intervenors
in the judicial review is not a question vital to the final issue of the case.
[12]
As a
result, I must now determine whether “the orders 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.”
[13]
In
determining whether or not the appellants should have been added as intervenors
to the judicial review, I make note of the remarks of Mr. Justice Simon Noël
speaking for the Court in Canadian Union of Public Employees (Airline
Division). v. Canadian Airlines International Ltd., [2000] F.C.J. No. 220 (C.U.P.E.)
at paragraph 8:
It
is fair to assume that in order to grant the intervention the motions Judge
would have considered the following factors which were advanced by both the
appellants and PSAC as being relevant to her decision:
1)
Is the proposed intervener directly affected by the outcome?
2)
Does there exist a justiciable issue and a veritable public interest?
3)
Is there an apparent lack of any other reasonable or efficient means to submit
the question of the Court?
4)
Is the position of the proposed intervener adequately defended by one of the
parties to the case?
5)
Are the interests of justice better served by the intervention of the proposed
third party?
6)
Can the Court hear and decide the cause on its merits without the proposed
intervener?
[14]
Rule 109
of the Federal Courts Rules deals with intervention:
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109.(1) The Court may, on motion, grant
leave to any person to intervene in a proceeding.
(2) Notice of
a motion under subsection (1) shall
(a) set out
the full name and address of the proposed intervener and of any solicitor
acting for the proposed intervener; and
(b) describe
how the proposed intervener wishes to participate in the proceeding and how
that participation will assist the determination of a factual or legal issue
related to the proceeding.
(3) In
granting a motion under subsection (1), the Court shall give directions
regarding
(a) the
service of documents; and
(b) the role
of the intervener, including costs, rights of appeal and any other matters
relating to the procedure to be followed by the intervener.
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109.(1)
La Cour peut, sur requête, autoriser toute personne à intervenir dans une
instance.
(2)
L’avis d’une requête présentée pour obtenir l’autorisation d’intervenir :
a)
précise les nom et adresse de la personne qui désire intervenir et ceux de
son avocat, le cas échéant;
b)
explique de quelle manière la personne désire participer à l’instance et en
quoi sa participation aidera à la prise d’une décision sur toute question de
fait et de droit se rapportant à l’instance.
(3)
La Cour assortit l’autorisation d’intervenir de directives concernant :
a) la
signification de documents;
b) le rôle de
l’intervenant, notamment en ce qui concerne les dépens, les droits d’appel et
toute autre question relative à la procédure à suivre.
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[15]
A review
of the underlying judicial review application in this matter tells us what
relief the applicant is seeking:
The Applicant therefore makes application
for an Order:
1. Declaring that the Respondent
had no constitutional or statutory jurisdiction to make the said Inspector’s
Direction;
2. Declaring that the making of
the Inspector’s Direction was ultra vires the Respondent, or
inapplicable to the Applicant, by intruding on areas of exclusive provincial
jurisdiction, contrary to the Constitution Act, 1867;
3. Declaring that the making of
the Inspector’s Direction was ultra vires the statutory authority
granted to the Respondent by the Fisheries Act (Canada);
4. Declaring that the making of
the Inspector’s Direction was contrary to the principles of natural justice, in
that a fair hearing and/or fair and reasonable time to make submissions was not
afforded to the Applicant;
5. Declaring that the making of
the Inspector’s Direction was contrary to the principles of natural justice, in
that:
(a) the Federal Authorities making
the Inspector’s Direction were biased against the Applicant;
(b) in making the Inspector’s
Direction, the Federal Authorities were motivated by and gui8lty of bad faith,
gross negligence and/or abuse of process; and
(c) the Federal Authorities
knowingly exceeded their constitutional jurisdiction, and the making of the
Inspector’s Direction was a serious unwarranted and unauthorized incursion into
a provincial power.
6. Granting the Applicant the
costs of this matter, on such basis as this Honourable Court may allow; and
7. Such further and other relief
as may be allowed.
[16]
The
Prothonotary’s decision reads in part as follows:
The Moving Parties consist of a number of
organizations and persons from the Lake Lenore area community that claim to
be directly affected by the Inspector’s Direction. Their common concern is that
impairment of the aquatic ecosystem of Lenore Lake would result in lost opportunity to
the area in the range of millions of dollars annually, and adversely impact the
way of life of the community.
Although the Moving Parties clearly have
an interest in the outcome of the application, I am not satisfied that they are
“directly affected” by the decision, or have any legal interest that would be
affected by an order disposing of the application for judicial review. They
have, at best, an economic or commercial interest. Further, any order quashing
the Inspector’s Direction or dismissing the application for judicial review
would not directly affect their legal rights, and be binding on them.
The application for judicial review
involves narrow constitutional and administrative law issues. The interests of
the public at large are at issue in this proceeding, as opposed to those of the
Moving Parties. In my view, those interests are properly represented by SWA and
the Attorney General of Canada.
Moreover, the Respondent is in the best
position to set forth what was, and what was not, considered in the
decision-making process. The Moving Parties have failed to establish that they
have any additional evidence that is relevant to the issues raised in the
application, or a different perspective that would assist the Court in
disposing of the application.
Being substantially in agreement with the
written representations filed on behalf of SWA and the Respondent, which I
adopt and make mine, I conclude that the motion to be added as respondent or as
an intervenor should be dismissed.
[17]
I have
reviewed the order of the Prothonotary and I do not find the order “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.”
[18]
The
Prothonotary correctly noted that the underlying application for judicial
review involved constitutional and administrative law issues.
[19]
The
Prothonotary noted that the appellants have an interest in the outcome of the
application but he was not satisfied that they were directly affected by the
decision. He also found that an order disposing of the application for judicial
review would not affect any legal interests of the appellants. He concluded
that the appellants had an economic or commercial interest but were not
“directly affected”. He determined that an order quashing the Inspector’s
Direction or dismissing the application for judicial review would not be
binding on the appellants nor would such an order directly affect their legal
rights. In my view, the Prothonotary did not err in making these findings.
[20]
As noted
earlier, the application for judicial review involves constitutional and
administrative law issues and the interests of the public are at issue as
opposed to those of the appellants. The Prothonotary found that those interests
are properly represented by SWA and the Attorney General of Canada. The
Prothonotary did not err in this conclusion.
[21]
Finally,
the Prothonotary found that the respondent was in the best position to say what
was and was not considered in the decision making process which resulted in the
issuance of the Direction. As well, he found that the appellants have failed to
show that they have any relevant additional evidence relating to the issues
raised in the application for judicial review or a different perspective that
would assist the Court in deciding the application. Again, the Prothonotary did
not make an error in this respect.
[22]
The
Prothonotary has addressed the factours outlined in C.U.P.E. above, and
has considered Rule 109 of the Federal Courts Rules.
[23]
As a
result of my findings, I am of the opinion that the Prothonotary’s order was
not clearly wrong, in the sense that the exercise of discretion by him was
based on a wrong principle or upon a misapprehension of the facts.
[24]
The
appellant’s motion (appeal) of the Prothonotary’s order is therefore dismissed
with costs to Saskatchewan Watershed Authority.
ORDER
[25]
IT IS
ORDERED that the
appellants’ motion (appeal) is dismissed with costs to Saskatchewan Watershed
Authority.
“John
A. O’Keefe”
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