Docket:
A-279-13
Citation: 2014 FCA 76
CORAM:
DAWSON J.A.
WEBB J.A.
BLANCHARD J.A. (ex
officio)
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BETWEEN:
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DR. GÁBOR LUKÁCS
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Appellant
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and
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CANADIAN TRANSPORTATION AGENCY
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
Introduction
[1]
This is an appeal on a question of law, brought
with leave of this Court pursuant to section 41 of the Canada
Transportation Act, S.C. 1996, c. 10 (Act). The question concerns the
validity of a rule amending the Canadian Transportation Agency General Rules,
SOR/2005-35 (Rules). The amendment added a single section to the Rules: Rule
2.1 (Quorum Rule). The Quorum Rule is brief, and states ‘In all proceedings
before the Agency, one member constitutes a quorum”. The Quorum Rule was
published in the Canada Gazette Part II as SOR/2013-133. Prior to the enactment
of the Quorum Rule, two members of the Agency constituted a quorum.
[2]
The evidentiary basis for the appeal is simple
and undisputed: the Quorum Rule was not made with the approval of the Governor
in Council.
[3]
The appellant argues that the rules governing
the conduct of proceedings before the Agency, including the Quorum Rule, are
regulations within the meaning of subsection 36(1) of the Act. As such,
the Quorum Rule could only be made with the approval of the Governor in
Council. Additionally, the appellant argues that the Rules were originally approved
by the Governor in Council. It follows, the appellant argues, that the Rules
could not be amended without the approval of the Governor in Council.
[4]
The Agency responds that the Quorum Rule is a
rule respecting the number of members that are required to hear any matter or
perform any of the functions of the Agency. Accordingly, the Agency could enact
the Quorum Rule pursuant to its rule-making power found in section 17 of the
Act.
[5]
Notwithstanding the appellant’s able
submissions, for the reasons that follow I have concluded that the Agency’s
decision to enact the Quorum Rule pursuant to its rule-making
power (so that the approval of the Governor in Council was not required) was
reasonable.
The Applicable
Legislation
[6]
The Act contains a quorum provision that is
expressly subjected to the Agency’s rules:
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16. (1) Subject to the Agency’s
rules, two members constitute a quorum.
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16. (1) Sous réserve des règles
de l’Office, le quorum est constitué de deux membres.
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[7]
The Agency’s rule-making power is as follows:
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17. The Agency may make rules
respecting
(a) the sittings of the
Agency and the carrying on of its work;
(b) the manner of and
procedures for dealing with matters and business before the Agency, including
the circumstances in which hearings may be held in private; and
(c) the number of members
that are required to hear any matter or perform any of the functions of the
Agency under this Act or any other Act of Parliament. [Emphasis added.]
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17. L’Office peut établir des règles
concernant :
a) ses
séances et l’exécution de ses travaux;
b) la
procédure relative aux questions dont il est saisi, notamment pour ce qui est
des cas de huis clos;
c) le
nombre de membres qui doivent entendre les questions ou remplir telles des
fonctions de l’Office prévues par la présente loi ou une autre loi fédérale.
[Le souligné est de moi.]
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[8]
The relevant provision of the Act dealing with
regulations states:
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36. (1) Every regulation made by the
Agency under this Act must be made with the approval of the Governor in
Council.
(2) The Agency shall give the
Minister notice of every regulation proposed to be made by the Agency under
this Act.
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36. (1) Tout règlement pris par
l’Office en vertu de la présente loi est subordonné à l’agrément du
gouverneur en conseil.
(2) L’Office fait parvenir au
ministre un avis relativement à tout règlement qu’il entend prendre en vertu
de la présente loi.
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The Standard of
Review
[9]
The parties disagree about the standard of
review to be applied.
[10]
The appellant argues that the issue of whether
the Agency was authorized to enact the Quorum Rule without the approval of the
Governor in Council is a true question of jurisdiction, or vires. As a
result, he submits the applicable standard of review is correctness (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 59).
In oral argument, the appellant also argued that a quorum requirement is a
question of law that is both of central importance to the legal system as a
whole and outside the Agency’s specialized area of expertise so that the
validity of the Quorum Rule should be reviewed on the standard of correctness.
[11]
The respondent counters that in more recent
jurisprudence the Supreme Court of Canada has held that true questions of
jurisdiction are narrow and exceptional, and that an administrative tribunal’s
interpretation of its own statute should be presumed to be reviewable on the
standard of reasonableness (Alberta (Information and Privacy Commissioner)
v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at
paragraphs 33 and 39).
[12]
I agree that what is at issue is whether the
Agency properly interpreted its rule-making power contained in its home
statute. Pursuant to Alberta Teachers’, the presumption of
reasonableness review applies. In my view, the presumption of reasonableness
review has not been rebutted.
[13]
As recently discussed by the Supreme Court in McLean
v. British Columbia (Securities Commission), 2013 SCC 67, 452 N.R. 340, at
paragraphs 32 and 33, legislatures do not always speak with clarity. As a
result, applying the principles of statutory interpretation may not always
provide a single, clear interpretation of a provision. The resolution of
unclear language in an administrative agency’s home statute is usually best
left to the agency, because the choice between competing reasonable
interpretations will often involve policy considerations the legislature presumably
wanted the agency to decide.
[14]
For two reasons I reject the assertion that a
quorum rule raises a general question of law of central importance to the legal
system outside the expertise of the Agency.
[15]
First, while conceptually quorum requirements
are of importance to the fair administration of justice, it does not follow
that the Agency’s choice between a quorum of one or two members is a question
of central importance to the legal system as a whole. In my view, it is not.
The Quorum Rule does not seek to define quorum requirements for any other body
than the Agency itself.
[16]
Second, the Supreme Court has rejected such a
narrow view of the expertise of an administrative agency or tribunal. It is now
recognized that courts may not be as well-qualified as a given agency to
provide an interpretation of the agency’s home statute that makes sense in the
broad policy context in which the agency operates (McLean, at paragraphs
30 and 31, citing, among other authorities, Council of Canadians with
Disabilities v. Via Rail, Canada Inc., 2007 SCC 15, [2007] 1 S.C.R.
650, at paragraph 92 and Canada (Canadian Human Rights Commission) v. Canada
(Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at paragraph 25.
[17]
It follows that the Agency’s interpretation of its
rule-making authority is a question reviewable on the standard of
reasonableness.
[18]
Before leaving the issue of the standard of
review I will deal with two authorities raised by the appellant in reply, which
were, as a result, the subject of supplementary written submissions.
[19]
The two authorities are Council of
Independent Community Pharmacy Owners v. Newfoundland and Labrador, 2013
NLCA 32, 360 D.L.R. (4th) 286, and Yates v. Newfoundland and Labrador (Regional Appeal Board), 2013 NLTD(G) 173, 344 Nfld. & P.E.I.R. 317.
[20]
In my view both decisions are distinguishable.
At issue in the first case was whether regulations enacted by the
Lieutenant-Governor in Council were ultra vires. In the second case, the
Court’s attention was not drawn to the decisions of the Supreme Court in Alberta Teachers’ and McLean. I am not persuaded either case supports
the appellant’s position.
The Applicable
Principles of Statutory Interpretation
[21]
Whether rules made under section 17 of the Act
must be approved by the Governor in Council depends upon the interpretation to
be given to the word “regulation” as used in subsection 36(1) of the Act.
[22]
The preferred approach to statutory interpretation
has been expressed in the following terms by the Supreme Court:
Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.
See:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21.
See also: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R.
867 at paragraph 29.
[23]
The Supreme Court restated this principle in Canada
Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at
paragraph 10:
It
has been long established as a matter of statutory interpretation that “the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v.
Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a
statutory provision must be made according to a textual, contextual and
purposive analysis to find a meaning that is harmonious with the Act as a
whole. When the words of a provision are precise and unequivocal, the ordinary
meaning of the words play a dominant role in the interpretive process. On the
other hand, where the words can support more than one reasonable meaning, the
ordinary meaning of the words plays a lesser role. The relative effects of
ordinary meaning, context and purpose on the interpretive process may vary, but
in all cases the court must seek to read the provisions of an Act as a
harmonious whole.
[24]
This formulation of the proper approach to
statutory interpretation was repeated in Celgene Corp. v. Canada (Attorney
General), 2011 SCC 1, [2011] 1 S.C.R. 3 at paragraph 21, and Canada
(Information Commissioner) v. Canada (Minister of National Defence), 2011
SCC 25, [2011] 2 S.C.R. 306 at paragraph 27.
[25]
Inherent in the contextual approach to statutory
interpretation is the understanding that the grammatical and ordinary sense of
a provision is not determinative of its meaning. A court must consider the
total context of the provision to be interpreted “no matter how plain the
disposition may seem upon initial reading” (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 at paragraph 48).
From the text and this wider context the interpreting court aims to ascertain
legislative intent, “[t]he most significant element of this analysis” (R. v.
Monney, [1999] 1 S.C.R. 652 at paragraph 26).
Application of
the Principles of Statutory Interpretation
[26]
I therefore turn to the required textual,
contextual and purposive analysis required to answer this question.
(i) Textual
Analysis
[27]
The appellant argues that the definitions of
“regulation” found in the Interpretation Act, R.S.C. 1985, c. I-21 and
the Statutory Instruments Act, R.S.C. 1985, c. S-22 decide the meaning
of “rules” under the Act. The appellant’s argument relies on paragraph 15(2)(b)
of the Interpretation Act, which states:
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15. (2) Where an enactment contains
an interpretation section or provision, it shall be read and construed
[…]
(b) as being applicable to
all other enactments relating to the same subject-matter unless a contrary
intention appears.
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15. (2) Les dispositions
définitoires ou interprétatives d’un texte :
. . .
b) s’appliquent,
sauf indication contraire, aux autres textes portant sur un domaine
identique.
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[28]
Subsection 2(1) of the Interpretation Act provides
that:
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2. (1) In this Act,
“regulation” includes an order,
regulation, rule, rule of court, form, tariff of costs or fees,
letters patent, commission, warrant, proclamation, by-law, resolution or
other instrument issued, made or established
(a) in the execution of a
power conferred by or under the authority of an Act, or
(b) by or under the authority
of the Governor in Council. [Emphasis added.]
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2. (1) Les définitions qui
suivent s’appliquent à la présente loi.
« règlement » Règlement proprement dit,
décret, ordonnance, proclamation, arrêté, règle judiciaire ou autre,
règlement administratif, formulaire, tarif de droits, de frais ou
d’honoraires, lettres patentes, commission, mandat, résolution ou autre acte
pris :
a) soit
dans l’exercice d’un pouvoir conféré sous le régime d’une loi fédérale;
b) soit
par le gouverneur en conseil ou sous son autorité. [Le souligné est de moi.]
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[29]
Similarly, subsection 2(1) of the Statutory
Instruments Act provides:
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2. (1) In this Act,
“regulation” means a statutory instrument
(a) made in the exercise of a
legislative power conferred by or under an Act of Parliament, or
(b) for the contravention of
which a penalty, fine or imprisonment is prescribed by or under an Act of
Parliament,
and includes a rule, order or
regulation governing the practice or procedure in any proceedings before a
judicial or quasi-judicial body established by or under an Act of Parliament,
and any instrument described as a regulation in any other Act of Parliament.
[Emphasis added.]
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2. (1) Les définitions qui
suivent s’appliquent à la présente loi.
« règlement » Texte réglementaire :
a) soit
pris dans l’exercice d’un pouvoir législatif conféré sous le régime d’une loi
fédérale;
b) soit
dont la violation est passible d’une pénalité, d’une amende ou d’une peine
d’emprisonnement sous le régime d’une loi fédérale.
Sont en outre visés par la présente
définition les règlements, décrets, ordonnances,
arrêtés ou règles régissant la pratique ou la procédure dans les instances
engagées devant un organisme judiciaire ou quasi judiciaire constitué sous le
régime d’une loi fédérale, de même que tout autre texte désigné comme
règlement par une autre loi fédérale. [Le souligné est de moi.]
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[30]
In the alternative, even if the definitions of “regulation”
do not formally apply to the Act, the appellant submits that they are
declaratory of the usual and ordinary meaning of the word “regulation”. It
follows, the appellant argues, that the word “regulation” found in subsection
36(1) of the Act includes “rules” made under section 17, so that the Agency was
required to obtain the Governor in Council’s approval of the Quorum Rule.
[31]
There are, in my view, a number of difficulties
with these submissions.
[32]
First, the definition of “regulation” in
subsection 2(1) of the Interpretation Act is preceded by the phrase “In
this Act”. This is to be contrasted with subsection 35(1) of the Interpretation
Act which contains definitions that are to be applied “[i]n every
enactment”. As the word “regulation” is not found in subsection 35(1), the
logical inference is that the definition found in subsection 2(1) is not to be
applied to other enactments.
[33]
Similarly, the word “regulation” is defined in
the Statutory Instruments Act only for the purpose of that Act.
[34]
Second, paragraph 15(2)(b) of the Interpretation
Act is subject to the caveat “unless a contrary intention” is evidenced in
the enactment under consideration. For reasons developed in the contextual
analysis, I am of the view that the Act does demonstrate such a contrary
intention.
[35]
Third, subsection 3(3) of the Interpretation
Act states that “[n]othing in this Act excludes the application to an
enactment of a rule of construction applicable to that enactment and not
inconsistent with this Act.” This further limits the application of paragraph
15(2)(b) of the Interpretation Act.
[36]
Notwithstanding these difficulties, I agree that
there is some potential ambiguity in the plain meaning of the word “regulation”
in that in some contexts it can include a “rule”. Where the word “regulation”
can support more than one ordinary meaning, the meaning of the word plays a
lesser role in the interpretive process. I therefore turn to the contextual
analysis to read the provisions of the Act as a harmonious whole.
(ii) Contextual
Analysis
[37]
An electronic search of the Act discloses that
the word “rule” is used in the order of 11 different provisions, while “regulation”
is found in over 30 provisions. In no case are the words used interchangeably.
For example, at subsection 4(1) of the Act, “orders and regulations” made under
the Act relating to transportation matters take precedence over any “rule,
order or regulation” made under any other Act of Parliament. Similarly, under
section 25 of the Act, the Agency is granted all powers vested in superior
courts to, among other things, enforce “orders and regulations” made under the
Act. The absence of reference to “rules” in both provisions suggests rules hold
a subsidiary position to orders or regulations. This interpretation is
consistent with the view that rules are created by the Agency on its own
initiative, while orders come at the end of an adjudicative process and
regulations must be approved by the Governor in Council.
[38]
Other provisions relevant to the contextual
analysis are sections 34 and 36 of the Act. Subsection 34(2) requires the
Agency to give to the Minister notice of every rule proposed under subsection
34(1) (which deals with the fixing of license and permit fees). Subsection
36(2) similarly requires the Agency to give the Minister notice of every
regulation proposed to be made under the Act. If rules are a subset of
regulations, subsection 34(2) would be redundant, because the Minister must be
notified of all proposed regulations. The interpretation of “rules” as a subset
of “regulation” would violate the presumption against tautology, where Parliament
is presumed to avoid speaking in vain (Quebec (Attorney General) v. Carrières
Ste. Thérèse Ltée, [1985] 1 S.C.R. 831, at page 838.
[39]
Moreover, whenever “rule” appears in the Act it is
in the context of internal procedural or non-adjudicative administrative
matters. See:
- subsection
16(1): dealing with the quorum requirement;
- subsection 17(a):
dealing with sittings of the Agency and the carrying on of its work;
- subsection 17(b):
concerning procedures and business before the Agency, including the circumstances
in which hearings may be held in private;
- subsection 17(c)
dealing with a number of members required to hear any matter or perform
any of the functions of the Agency;
- subsection
25.1(4): dealing with the Agency’s right to make rules specifying a scale
under which costs are taxed;
- subsection
34(1): dealing with fixing fees for, among other things, applications,
licenses and permits;
- section 109:
dealing with the right of judges of the Federal Court to, with the
approval of the Governor in Council, make general rules regarding the
practice and procedure of the Court in relation to insolvent railways;
- subsection
163(1): providing that in the absence of agreement to the contrary, the
Agency’s rules of procedure apply to arbitrations; and
- subsection 169.36(1):
dealing with the right of the Agency to make rules of procedure for an
arbitration.
[40]
In contrast, the Act’s use of the word
“regulations” generally refers to more than merely internal, procedural
matters. For example:
- subsection
86(1): the Agency can make regulations relating to air services;
- section 86.1:
the Agency shall make regulations respecting advertising of prices for air
services within or originating in Canada;
- subsection
92(3): the Agency can make regulations concerning the adequacy of liability
insurance for a railway;
- subsection
117(2): the Agency may make regulations with respect to information to be
contained in a railway tariff;
- subsection
128(1): the Agency can make regulations relating to the interswitching of
rail traffic; and
- section 170: the
Agency can make regulations for the purpose of eliminating undue obstacles
in the transportation network to the mobility of persons with
disabilities.
[41]
The dichotomy between internal/procedural matters
on one hand and external/substantive on the other is reflected in section 54 of
the Act, which provides that the appointment of receivers or managers does not
relieve them from complying with the Act and with the “orders, regulations, and
directions made or issued under this Act”. The absence of “rules” from this
listing is consistent with the interpretation that, in the context of the Act,
rules only apply to procedural matters and not the substantive operations that
a receiver or manager would be charged with. This interpretation also accords with
the presumption of consistent expression, since it is generally inferred that “[w]hen
an Act uses different words in relation to the same subject such a choice by
Parliament must be considered intentional and indicative of a change in meaning
or a different meaning” (Peach Hill Management Ltd. v. Canada, [2000]
F.C.J. No. 894, 257 N.R. 193, at paragraph 12 (F.C.A.).
[42]
Another relevant provision is section 109, which
requires Federal Court judges to seek approval from the Governor in Council
when establishing rules of procedure for matters relating to insolvent
railways. Two possible conclusions may be taken from this provision. First, it
could imply that the Agency’s rules are also subject to Governor in Council
approval. Second, it could imply that since Federal Court judges are explicitly
required to seek such approval, the absence of that same requirement under
section 17 is indicative of Parliament’s intent that the Agency is not required
to seek such approval.
[43]
The latter interpretation is, in my view, the
better view. It is in accordance with the maxim of statutory interpretation expressio
unius exclusio alterius, which in essence states that consistent drafting
requires that some legislative silences should be seen as deliberate. While
this maxim should be approached with caution, the Supreme Court has relied on
similar reasoning to find Parliament’s inclusion of express limitations in some
sections of an act as evidence Parliament did not intend those limitations to be
included in other provisions where the exceptions are not explicitly stated (Ulybel
Enterprises at paragraph 42).
[44]
In the present case, since the Act specifically
requires Federal Court judges to receive approval from the Governor in Council
when establishing rules of procedure, the application of the exclusio unius maxim
is consistent with the interpretation that the Agency’s rules are not subject
to this requirement.
[45]
There is a further, final contextual aid, found
in the legislative evolution of the Act. In Ulybel Enterprises at paragraph
33, the Supreme Court noted that prior enactments may throw light on
Parliament’s intent when amending or adding to a statute.
[46]
The predecessor to the Agency, the National
Transportation Agency (NTA), was governed by the National Transportation Act,
1987, c. 28 (3rd Supp.) (former Act).
[47]
Pursuant to subsection 22(1) of the former Act,
the NTA had the power to make rules with the approval of the Governor in
Council:
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22. (1) The
Agency may, with the approval of the Governor in Council, make rules
respecting
(a) the
sittings of the Agency and the carrying on of its work;
(b) the
manner of and procedures for dealing with matters and business before the
Agency, including the circumstances in which in camera hearings may be held;
and
(c) the
number of members of the Agency that are required to hear any matter or
exercise any of the functions of the Agency under this Act or any other Act
of Parliament.
(2) Subject to
the rules referred to in subsection (1), two members of the Agency constitute
a quorum. [Emphasis added.]
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22. (1)
L’Office peut, avec l’approbation du gouverneur en conseil, établir des
règles concernant:
a) ses séances et l’exécution de ses travaux;
b) la procédure relative aux questions dont il est saisi, notamment
pour ce qui est des cas de huis clos;
c) le nombre de membres qui doivent connaître des questions ou
remplir telles des fonctions de l’Office prévues par la présente loi ou une
autre loi fédérale.
(2) Sous
réserve des règles visées au paragraphe (1), le quorum est constitué de deux
membres. [Le souligné est de moi.]
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[48]
In 1996, the former Act was replaced with the current
regime. Section 22 of the former Act was replaced by nearly identical
provisions contained in subsection 16(1) and section 17 of the current Act.
There was one significant difference: the requirement to obtain Governor in
Council approval for the rules was removed. In my view, this demonstrates that
Parliament intended that the Agency not be required to obtain Governor in
Council approval when making rules pursuant to section 17 of the Act.
[49]
Before leaving the contextual analysis, for
completeness, I note that at the hearing of this appeal counsel for the Agency
indicated that he no longer relied on the clause-by-cause analysis of section
17 of the Act as an aid to interpretation. As such, it has formed no part of my
analysis.
(iii) Purposive
Analysis
[50]
The Agency has a broad mandate in respect of all transportation matters
under the legislative authority of Parliament. The Agency performs two key
functions.
[51]
First, in its role as a quasi-judicial tribunal, it resolves commercial
and consumer transportation-related disputes. Its mandate was increased to
include resolving accessibility issues for persons with disabilities.
[52]
Second, the Agency functions as an economic regulator, making
determinations and issuing licenses and permits to carriers which function
within the ambit of Parliament’s authority. In both roles the Agency may be
called to deal with matters of significant complexity.
[53]
Subsection 29(1) of the Act requires the Agency to make its decision in
any proceeding before it as expeditiously as possible, but no later than 120
days after the originating documents are received (unless the parties agree
otherwise or the Governor in Council shortens the time frame by regulation).
[54]
The mandate of the Agency when viewed through the lens that it must act
with celerity requires an efficient decision-making process. Efficient
processes are the result of a number of factors, not the least of which are
rules of procedure that establish efficient procedures and that are flexible
and able to react to changing circumstances.
[55]
In my view, interpreting subsection 36(1) of the Act to not include
rules as a subset of regulations (so as to allow the Agency to enact rules
without Governor in Council approval) is consistent with the purpose of the Agency
as envisioned in the Act.
(iv) Conclusion
of Statutory Interpretation Analysis
[56]
Having conducted the required textual, contextual and purposive
analysis, I am satisfied the Agency’s interpretation of the Act was reasonable.
While there may be a measure of ambiguity in the text of the Act, the Act’s context
and purpose demonstrate that the Agency’s interpretation fell within a range of
acceptable outcomes.
[57]
There remains to consider the appellant’s final argument.
What, if anything, is the Effect
of Governor in Council Approval of the Rules in 2005?
[58]
As noted above, the appellant argues that because the Rules were
approved by the Governor in Council, they could not be amended without Governor
in Council approval.
[59]
In my view, there are two answers to this argument.
[60]
First, while the Regulatory Impact Analysis Statement which accompanied
the Rules in 2005 stated that Governor in Council approval was required for the
enactment of the Rules, such a statement does not bind this Court. Regulatory
Impact Analysis Statements do not form part of the substantive enactment (Astral
Media Radio Inc. v. Society of Composers, Authors and Music Publishers of
Canada, 2010 FCA 16, [2011] 1 F.C.R. 347, at paragraph 23). As the Agency
later reasonably concluded that Governor in Council approval was not required
to enact the Quorum Rule, it follows that Governor in Council approval in 2005
was an unnecessary step that does not limit or bind the Agency now or in the
future.
[61]
Second, the Quorum Rule is new. It does not vary or rescind any
provision in the Rules that could be said to be previously approved by the
Governor in Council.
Conclusion
[62]
For these reasons, I would dismiss the appeal. In the circumstances where
the appeal was in the nature of public interest litigation and the issue raised
by the appellant was not frivolous, I would award the appellant his
disbursements in this Court.
[63]
In the event the parties are unable to reach agreement on the
disbursements, they shall be assessed.
“Eleanor R. Dawson”
“I agree.
Wyman W. Webb J.A.”
“I agree.
Edmond P. Blanchard J.A. (ex
officio)”
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