Community Before Cars Coalition v. National Capital Commission
T-1830-96 / T-2481-96 / T-2865-96 / T-2886-96
Muldoon J.
7/8/97
81 pp.
Application for judicial review of four decisions made by National Capital Commission (NCC) on proposed widening of Champlain bridge, spanning Ottawa River, from two to three lanes while doing necessary, major repairs-After preliminary studies, consultant retained in 1994 to study feasibility of functional design requirements for retrofitting and widening Champlain bridge-Study to be made in accordance with EARPGO and Canadian Environmental Assessment Act-Draft terms of reference prepared by NCC staff circulated to various groups, including applicant-Final terms of reference finalized by NCC staff after receiving comments on draft terms in January 1995-Public participation and consultation were intended to be leading component of study-First phase would define need and justification for reconstruction in context of interprovincial needs-Second phase would appraise alternative ways of resolving needs and issues identified in Phase One and recommend preferred option-Six Public Advisory Committee (PAC) meetings held in course of study-Representatives of all levels of government and regulatory agencies involved-Consultant made subsidiary study called "Champlain Bridge Reconstruction Option Reassessment" completed in April 1996 wherein five two-lane and six three-lane options identified-Final report of June 1996 considered four main factors: natural environment, social environment, transportation and cost-Comparison/elimination approach used for analysing factors-Based on consultant's recommendation, NCC staff prepared report recommending three-lane option-By 6-4 majority, NCC commissioners adopted staff recommendation as NCC's "intent of decision" and made it public for comments-Environmental evaluation determined potentially adverse environmental effects that could be caused by proposal either insignificant or mitigable with known technology-Also made public, for comments-Supplementary report prepared by consultant to remedy problems noted by applicant-NCC staff prepared another report again recommending three-lane bridge, but one meter less in width-In September 1996, NCC commissioners voted 7 to 5 in favour of adopting recommendations in amended staff report concerning reconstruction and its addendum as "intention of decision"-In public concern analysis, NCC recommended NCC commissioners not decide to refer project to public review panel on basis would not provide significant new information about proposal or alternatives not currently available to decision makers-On October 15, 1996, NCC commissioners, by 9 to 4 vote made final decision to reconstruct bridge with three-lane facility, to operate as two-lane bridge until such time as Regional Municipality of OttawaCarleton and Communauté Urbaine de l'Outaouais can agree, along with NCC, on final operating design as two- or threelane bridge; if no agreement reached by October 15, 1997, issue to be reviewed and addressed by NCC-Issues in applications: (1) whether jurisdiction in NCC to add third lane to Champlain bridge; (2) whether decision tainted by bias arising out of alleged personal conflict of interest by NCC Chairman; (3) whether September 1996 "intent of decision" made on inaccurate, non-objective and incomplete information; (4) whether NCC complied with EARPGO, ss. 12, 13-Applications dismissed-(1) Jurisdiction-Munro v. National Capital Commission, [1966] S.C.R. 663 consummate case on NCC jurisdiction-Answer found in National Capital Act and Federal Land Use Plan (FLUP)-Act, ss. 10, 11 clearly giving NCC jurisdiction to rebuild Champlain bridge as three-lane structure-FLUP also clearly conferring appropriate powers on NCC-No evidence remotely suggesting addition of third lane, restricted to high occupancy vehicles driving in one direction, would alter character of Ottawa River Parkway, giving access to Champlain bridge, to such extent plan's balance between utility and aesthetics would be jeopardized-(2) Bias-NCC Chairman had interest (latterly, since 1993, through his wife) in about 1,000 acres of land approximately three km from north end of bridge-With respect to test for bias, NCC falls at policy-making end of scale-Chairman disclosed all interests in accordance with Code and, acting on advice of Ethics Commissioner, withdrew from deliberations and decisions regarding Champlain bridge-No evidence showing Chairman influenced commissioners when decisions made-No evidence allowing Court to infer Chairman's presence as head of NCC for previous four years had any impact on commissioners when made decisions-Reasonable, informed person could not conclude Chairman's property interest (now owned by wife) consciously or unconsciously influenced his performance of his official duties-Evidence to effect Chairman had nothing to gain from widening of bridge-No evidence Chairman influenced staff in such manner resulting in three-lane bridge being portrayed as best solution-No evidence overall planning process predetermined, or that NCC staff or commissioners had closed minds-Nothing on record demonstrating no reasonable basis for making decision-No bias on part of staff, apprehended or otherwise-(3) Intent of decision of September 1996; whether made on objective, careful and complete information-Not moot, even if followed by final decision-September decision occurred at critical juncture in process-Material put together for decision maker herein careful, complete and objective-Traffic demand management adequately dealt with by consultant-(4) Compliance with EARPGO, ss. 12, 13-Public consultation process herein comprehensive, meaningful, meeting necessary standard-No legitimate expectation particular methodology would be used-Terms of reference for assessment left it to consultant to choose either method-No breach of legitimate expectation as neither NCC nor consultant promised to use applicant's preferred "weighting" method-No legitimate expectation created-Only relevant promise or undertaking: there would be public consultation-No evidence to justify applicant's concern project "split" to allow for subsequent modification to Island Park Drive intersection modification-NCC made no error when decided, pursuant to EARPGO, s. 12(c) that proposal would have insignificant or mitigable effects-Commissioners' decision not to refer proposal to public review panel perfectly legal as taken in good faith, taking into account relevant considerations, having regard to purposes of Guidelines Order-NCC staff made recommendation on basis of all public responses NCC received regarding proposal-No concerns discounted or ignored-No evidence Commissioners relied on irrelevant considerations-No basis to argument final reconstruction decision illegal as it allegedly deferred actual decision-On basis of all evidence, assessment took place when environmental impacts could be fully considered-Environmental Assessment Review Process Guidelines Order, SOR/84-476, ss. 12, 13-National Capital Act, R.S.C., 1985, c. N-4, ss. 10 (as am. by R.S.C., 1985 (4th Supp.), c. 45, s. 3), 11-Canadian Environmental Assessment Act, R.S.C., 1985, c. C-15.