Friends of the West Country Assn. v. Canada ( Minister of Fisheries and Oceans )
T-2457-96
Muldoon J.
7/5/97
11 pp.
Motion pursuant to Federal Court Rules, R. 1612 to compel respondent to produce materials considered by Department of Fisheries and Oceans (DFO), Habitat Management Division, when conducted fact finding, including Sunpine Forest Products Ltd.'s proposal, certified copies of letters of advice issued by DFO to Sunpine-R. 1612 permitting service of written request for copies of material in possession of federal board, commission, or other tribunal-Sunpine, logging company, proposing to build road to access certain forest areas on eastern slope of Rocky Mountains-Proposed road will cross several streams, some fish bearing, others not, two of which navigable waterways-Provisions of several statutes operating to ensure project considered, approved in terms of environmental impact-DFO adopting policy to streamline process of identifying proposals contravening Fisheries Act, s. 35(1) (prohibiting work resulting in harmful alteration, disruption or destruction of fish habitat)-Before commencement of authorization process mandated by ss. 35(2), 37(2), DFO undertaking fact finding process to determine whether will be any harmful alteration, destruction of fish habitat-If finding harmful effects will not occur, may issue non-statutory "letter of advice" informing party that neither ss. 35(2), 37(2) applied-With respect to Sunpine's proposal, DFO conducting "fact finding" process in accordance with policy-Finding no harmful effects, issuing two letters of advice stating if certain mitigation measures taken proposal not contravening s. 35(1)-Respondent refusing request pursuant to R. 1613 on ground no federal board, commission or other tribunal, no decision-Respondent raising argument for non-disclosure under R. 1613 which attempts to force resolution of issue in contention in proceedings on originating motion-In that proceeding applicant seeking declaration letters of advice constituting authorizations under ss. 35(2), 37(2), or declaration letters ultra vires Minister's jurisdiction-Implication of letters constituting authorizations that Minister would be required under Canadian Environmental Assessment Act, s. 5(1)(d) to conduct environmental assessment before issuing authorizations-Respondent submitting DFO policy, developed internally without any explicit statutory foundation, relieving Minister of statutory obligations or limiting Minister's obligations vis à vis Fisheries Act, ss. 35(2), 37(2), CEAA, s. 5(1)(d)-Also appearing further "benefit" deriving from this informal approach to statutory mandate, obligations placed upon DFO by Fisheries Act and CEAA that DFO need not disclose materials in relation to judicial review application related to letters of advice since in accordance with policy, letters of advice not constituting decision within meaning of R. 1612-Transparent bureaucratic attempt at sheer evasion of binding statutory imperatives-By making "policy" not contemplated by statutes, DFO cannot immunize Minister DFO from judicial review, nor circumvent environment laws declining to obey-DFO's policy with respect to letters of advice, and purported legal effects of policy i.e. letters not decisions made by federal board, commission or tribunal, having no bearing on issue under R. 1612 of whether respondent should disclose materials relevant to main action to applicant-Sole reason for which respondent argued for non-disclosure-No valid reason for respondent's objection to applicant's R. 1612 request-R. 1612 allowing applicant to request tribunal provide certified copy of material in tribunal's possession, of which applicant not having possession-Applicant must specify particular material, material must be relevant-Tests under R. 1612 possession, relevance-Respondent's objections not raising any issue as to relevance, possession-Court must weigh relevance of each document-Scope of relevance considered in Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.)-Impossible for applicant to articulate each individual document in category of request because result of Department's process that no one, including applicant seeing documents except for Sunpine, DFO officials-Policy DFO using ordered disclosed-Federal Court Rules, C.R.C., c. 663, RR. 1612 (as enacted by SOR/92-43, s. 19), 1613 (as enacted idem)-Fisheries Act, R.S.C., 1985, c. F-14, ss. 35, 37-Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 5(1)(d).