Date: 19981201
Docket: A-191-98
CORAM: STRAYER J.A.
ROBERTSON J.A.
SEXTON J.A.
BETWEEN:
ALBERTA WILDERNESS ASSOCIATION,
CANADIAN NATURE FEDERATION, CANADIAN PARKS
AND WILDERNESS SOCIETY, JASPER
ENVIRONMENTAL ASSOCIATION, and PEMBINA
INSTITUTE FOR APPROPRIATE DEVELOPMENT
Appellants
(Applicants)
- and -
MINISTER OF FISHERIES AND OCEANS,
and CARDINAL RIVER COALS LTD.
Respondents
(Respondents)
- and -
BRIAN BIETZ, GORDON MILLER and TOM BECK
IN THEIR CAPACITY AS A REVIEW PANEL ESTABLISHED
UNDER THE CANADIAN ENVIRONMENTAL
ASSESSMENT ACT TO REVIEW THE CHEVIOT COAL PROJECT
Intervenors
(Intervenors)
Heard at Toronto, Ontario, Monday, November 30, and Tuesday, December 1, 1998
Judgment delivered from the Bench
at Toronto, Ontario on Tuesday, December 1, 1998
REASONS FOR JUDGMENT OF THE COURT BY: STRAYER J.A.
Date: 19981201
Docket: A-191-98
CORAM: STRAYER J.A.
ROBERTSON J.A.
SEXTON J.A.
BETWEEN:
ALBERTA WILDERNESS ASSOCIATION,
CANADIAN NATURE FEDERATION, CANADIAN PARKS
AND WILDERNESS SOCIETY, JASPER
ENVIRONMENTAL ASSOCIATION, and PEMBINA
INSTITUTE FOR APPROPRIATE DEVELOPMENT
Appellants
(Applicants)
- and -
MINISTER OF FISHERIES AND OCEANS,
and CARDINAL RIVER COALS LTD.
Respondents
(Respondents)
- and -
BRIAN BIETZ, GORDON MILLER and TOM BECK
IN THEIR CAPACITY AS A REVIEW PANEL ESTABLISHED
UNDER THE CANADIAN ENVIRONMENTAL
ASSESSMENT ACT TO REVIEW THE CHEVIOT COAL PROJECT
Intervenor
(Intervenor)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario on
Tuesday, December 1, 1998)
STRAYER, J.A.:
[1] We are of the view that this appeal should be allowed.
[2] The appellant seeks to have set aside a discretionary order of a motions judge dated March 11, 1998, refusing to allow the affidavit of Dianne Pachal dated February 19, 1998 to be filed late in a judicial review in the Trial Division.
[3] The learned motions judge was obliged to deal with the motion for late filing by a telephone hearing and without having before him written submissions or all of the materials filed in that judicial review. We have had the advantage of seeing all the material and of extensive written and oral argument. As a result we are satisfied that the affidavit and its exhibits could have some relevance in the judicial review and therefore it has significant intrinsic worth. We do not of course express any opinion as to the weight any of its contents should be given.
[4] Circumstances have also changed since the determination made by the motions judge which he was obliged to deal with only some six weeks before the judicial review hearing. As we are, in appeal A-430-98 heard jointly with this appeal, sending the judicial review issues, to which this affidavit relates, back to the Trial Division for further determination, there can now be no significant prejudice to the respondents as a result of a delay in filing the affidavit. They will have ample time to react to it in ways that to them seem appropriate, having particular regard to the fact that they have now had notice of its contents since February, 1998.
[5] The appeal should therefore be allowed, leave should be given for late filing and service of the affidavit, and the affidavit should become part of the record in judicial review proceeding T-2354-97.
[6] No costs are awarded, none having been requested.
"B.L. Strayer"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-191-98
| STYLE OF CAUSE: ALBERTA WILDERNESS ASSOCIATION, |
CANADIAN NATURE FEDERATION, CANADIAN PARKS AND WILDERNESS SOCIETY, JASPER ENVIRONMENTAL ASSOCIATION, and PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT
| MINISTER OF FISHERIES AND OCEANS, |
and CARDINAL RIVER COALS LTD.
BRIAN BIETZ, GORDON MILLER
and TOM BECK IN THEIR CAPACITY AS A REVIEW PANEL ESTABLISHEDUNDER THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT TO REVIEW THE CHEVIOT COAL PROJECT
DATE OF HEARING: MONDAY, NOVEMBER 30, 1998
TUESDAY, DECEMBER 1, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: STRAYER J.A.
Delivered at Toronto, Ontario
on Tuesday, December 1, 1998
APPEARANCES: Mr. Stewart A.G. Elgie
| For the Appellants (Applicants) |
Mr. Patrick G. Hodgkinson
Ms. Mary L. King
For the Respondent (Respondent)
Minister
Mr. Dennis R. Thomas, Q.C.
Mr. Allan E. Domes
For the Respondent (Respondent)
Cardinal River Coals Ltd.
| SOLICITORS OF RECORD: Sierra Legal Defence Fund |
300, 106 Front Street East
Toronto, Ontario
M5A 1E1
| For the Appellant (Applicants) |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent (Respondents)
Minister
Fraser Milner
Barristers & Solicitors
2900, 10180 - 101 Street
Edmonton, Alberta
T5J 3V5
For the Respondent (Respondents)
Cardinal River Coals Ltd.
Alberta Energy & Utilities Board
640 - 5th Avenue S.W.
Calgary, Alberta
T2P 3G4
For the Intervenors (Intervenors)
| |
ALBERTA WILDERNESS ASSOCIATION, |
|
| |
CANADIAN NATURE FEDERATION, CANADIAN PARKS AND WILDERNESS SOCIETY, JASPER ENVIRONMENTAL ASSOCIATION, and PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT |
|
| |
MINISTER OF FISHERIES AND OCEANS, and CARDINAL RIVER COALS LTD. |
|
| |
BRIAN BIETZ, GORDON MILLER and TOM BECK IN THEIR CAPACITY AS A REVIEW PANEL ESTABLISHED UNDER THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT TO REVIEW THE CHEVIOTCOAL PROJECT |
|
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