Judgments

[1995] 3 F.C. 713

T-2065-94

The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia (Applicant)

v.

Ultramar Canada Inc. (Respondent)

and

George N. Addy, the Director of Investigation and Research appointed pursuant to the Competition Act (Canada), R.S.C., 1985, c. C-34, s. 7(1) (Intervenor)

and

Atlantic Oilworkers Union, Local 1 (Intervenor)

T-2603-94

The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia (Applicant)

v.

Ultramar Canada Inc. (Respondent)

and

George N. Addy, the Director of Investigation and Research appointed pursuant to the Competition Act (Canada), R.S.C., 1985, c. C-34, s. 7(1) (Intervenor)

and

Atlantic Oilworkers Union, Local 1 (Intervenor)

Indexed as: Nova Scotia (Attorney General) v. Ultramar Canada Inc. (T.D.)

Trial Division, MacKay J.—Halifax, January 16 and 17; Ottawa, August 31, 1995.

Administrative law — Judicial review — Respondent undertaking to operate oil refinery for seven years — Refinery closed, respondent alleging material adverse change — Province seeking to prohibit Director of Investigation and Research from making determination on issue of material adverse change for apprehension of bias and mandamus to require him to compel respondent to continue operation of refinery — Interpretation, nature of undertakings at issue — Director having no power to adjudicate between competing interests of applicant, respondent — Exercising administrative function — Reasonable apprehension of bias on Director’s part in assessing respondent’s undertakings not applicable standard — No violation of duty of fairness — Director having no public duty to require respondent to continue operation of refinery — Where duty to act within discretion, mandamus not available to compel exercise of duty in particular way.

Competition — Consent order by Competition Tribunal under Competition Act relating to divestiture of Texaco Canada’s Atlantic region assets — Purpose of order to maintain competition in petroleum refining, wholesaling and retailing — Imperial Oil, in merger, took over Texaco Canada — Ultramar acquired Nova Scotia oil refinery from Imperial — Gave undertaking to operate refinery seven years barring material adverse change — Closing refinery based on such change — Province seeking orders of prohibition for apprehension of bias on Director’s part, mandamus requiring Director to force Ultramar to keep operating refinery — Role of Director of Investigation and Research under Act — Act not authorizing Director to adjudicate between competing interests of applicant, respondent — Duty of fairness to applicant met.

Practice — Parties — Standing — Respondent, intervenor questioning standing of applicant (Province of Nova Scotia) — Application of Federal Court Act, s. 18.1(1) — Words “directly affected” in s. 18.1(1) not having narrow meaning — Applicant’s interests in competition in local petroleum market and in maintenance of refinery operations genuine, important — Standing recognized — Union granted standing as intervenor — May not raise new issues different from those raised by applicant.

In 1990, the respondent Ultramar acquired an oil refinery from Imperial Oil Ltd. at Eastern Passage, Nova Scotia, after the latter, by merger, took over the shares of the former Texaco Canada Ltd. Having concluded that the merger would unduly lessen competition in certain markets, the Director of Investigation and Research applied to the Competition Tribunal for a consent order under the Competition Act. The Tribunal granted the order sought the purpose of which was to maintain the continued competitive presence of viable petroleum refining, wholesaling and retailing assets in the Atlantic Region. Thereafter, the Director conditionally approved the purchase by Ultramar of the former Texaco Atlantic assets, including the oil refinery, from Imperial Oil. Among terms of that approval, Ultramar provided a written undertaking to the Director that it would operate the refinery for a period of seven years barring a material adverse change, and that if such a change occurred within that period it would give 90 days’ notice before taking action to adversely affect the refinery operations. In May 1994, Ultramar, by letter to the Director, gave notice of its intent to close the refinery due to material adverse change. Based on a reasonable apprehension of bias on the part of the Director, the applicant sought an order prohibiting him from making a final determination on the issue of material adverse change. When Ultramar closed its operation at the refinery in October 1994, the applicant sought an order of mandamus to require the Director to compel Ultramar to continue the operation of the refinery in accord with its undertakings. Four main issues were raised: 1) the standing of the applicant to seek relief and the standing of the Union as intervenor; 2) the merits of the application for prohibition; 3) the nature of the undertakings by Ultramar and 4) the merits of the application for mandamus.

Held, the applicant had standing to seek relief and the Union had standing as intervenor; both applications should be dismissed.

1) The issue of standing concerns the application of subsection 18.1(1) of the Federal Court Act. The general principle is that standing will be granted to a public interest group to challenge the exercise of administrative authority where the applicant demonstrates a genuine interest as a citizen, a serious issue is raised, and there is no other reasonably effective method of bringing the issue before the Court. The wording in subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the circumstances and the interest which the applicant holds justify status being granted. Subsection 18.1(1) includes the normal proceedings now used in seeking declaratory relief and it cannot be assumed that Parliament by use of the term “directly affected” intended to restrict standing in public interest cases to the historic view antedating the Supreme Court’s decisions beginning with Thorson. The Province of Nova Scotia’s interests in competition in the local petroleum market and its interests in continued economic activity and employment at the refinery are genuine, important public interests. These interests are affected by the activity of the Director in dealing with the issue of material adverse change as raised by Ultramar under the 1990 undertaking. The interests of the Province being genuine and important, the issues raised, that is the alleged apprehension of bias on the part of the Director in the process followed and his obligations in relation to the undertakings given by Ultramar, are justiciable issues. The circumstances warranted recognition of standing for the applicant to seek judicial review. The interests of justice warranted allowing intervenor standing for the Atlantic Oilworkers Union, Local 1 which had been involved as an active intervening party in the proceedings before the Competition Tribunal and in the early stages of the consultations and correspondence from which these proceedings arose. The general principle is that an intervenor in judicial review proceedings is precluded from raising a new issue different from those raised by the application, unless the Court expressly authorizes otherwise. In some respects issues different from those presented by the applicant were raised, in particular by the Union’s written submissions. But those submissions were of general assistance to the Court in providing perspective on the background and the undertakings at issue.

2) The Director, in considering the issue of material adverse change, is said to have acted in a manner creating a reasonable apprehension of bias. All of his actions in this respect occurred after the originating motion for prohibition was filed and they were not factors to be considered in assessing the reasonable apprehension of bias here alleged. There was no factual basis for the Union’s arguments concerning the denial of natural justice in respect of a right to be heard in relation to the issues here raised. The right to be heard does not imply a right to have one’s view accepted. The applicant had the opportunity to be heard in relation to the definition of material adverse change and whether Ultramar had demonstrated that such a change had occurred. Neither the applicant nor the Union was denied the opportunity to set out its interpretation or understanding of the 1990 undertakings and perceptions of the Director’s obligations thereunder. The role of the Director in this matter must be determined in accord with the governing statute, the Competition Act. Any duty of fairness owed by the Director to the applicant is dependant on that role. The Director had no power to adjudicate between the competing interests of Ultramar and the applicant, not under the enabling statute, not under the express terms of the Tribunal’s consent order, and not even under the terms of the undertakings by Ultramar. He was free within the terms of his statutory authority to devise processes for dealing with matters that lie within his investigatory and administrative functions. In assessing this situation to determine the facts and to consider the application of Ultramar’s undertakings to those facts, the Director exercised a typical administrative function in light of his role in investigating and enforcing public policy. He had to consider the parties’ submissions with an open mind as to his final determination. The function of the Director in assessing whether Ultramar has met its undertakings is not one in which a reasonable apprehension of bias is an appropriate standard. It is not a standard applicable to an administrative task undertaken by one who has a public duty to serve interests established by an enabling statute. The Director has not violated his duty of providing a fair procedure for the applicant to make its submissions, nor has he threatened to violate his duty of fairness to the applicant, so as to warrant Court intervention. The applicant could not ask someone other than the Director to make a final determination whether a material adverse change has occurred since the undertaking of 1990 was given. The Court has no authority to order any other public or private official to act in lieu of the Director.

3) Undertakings are not provided for in the Competition Act or in the order of the Tribunal which led to their being given. In this case, the undertakings were more than a normal contract between private parties. They created expectations not only for the parties themselves, Ultramar and the Director, but for others as well. The words of the undertakings themselves, referring to their status as a contract, to be governed for all purposes under the applicable laws of Ontario and Canada, must have significance. Any disagreement between the Director and Ultramar about whether the obligations have been fulfilled must be resolved under the laws designated, ultimately by a court on proceedings commenced by either party. A key difference in interpretation of the 1990 undertaking, argued upon this application, was whether it imposed an obligation on Ultramar to continue operation of the refinery unless the Director determined there had been a material adverse change. For purposes of this application the undertakings given by Ultramar did not create such an obligation; nor was there a corresponding obligation on the Director to require continued operations pending determination of the issue of material adverse change. Ultramar would, however, risk legal action by the Director for breach of its undertaking.

4) This is not a case where the Court should imply a public duty on the part of the Director to require Ultramar to continue to operate the refinery for seven years pending a determination by him, or someone in his place, that a material adverse change has occurred. A public duty if implied must flow from the scheme of the Act and Regulations under which the public authority, here the Director, acts. The Director’s responsibilities under the undertakings arose from the undertakings themselves, not directly from the order of the Tribunal or from the Act. They did not create an implied duty imposed by the Act. One of the requirements for an order in the nature of mandamus is that there be a public duty to act. No public duty was owed to the applicant. Where the duty is to act but within discretion, mandamus is not available to compel exercise of the duty in a particular way. There was a general public duty by virtue of the statute to consider Ultramar’s submission that a material adverse change has occurred, including the authority to seek legal recourse if the Director did not agree with Ultramar’s determination of material adverse change or its decision to close down the refinery. Whether legal action is to be taken by the Director is a matter within his discretion; it is not for the Court to order if or how that discretion should be exercised.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Competition Act, R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19), ss. 1.1 (as enacted idem), 7, 101 (as enacted idem, s. 45), 105 (as enacted idem).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(1) (as enacted by S.C. 1990, c. 8, s. 5), 28(2).

Federal Court Rules, C.R.C., c. 663, R. 1611(3) (as enacted by SOR/92-43, s. 19).

CASES JUDICIALLY CONSIDERED

APPLIED:

Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229 (1993), 102 D.L.R. (4th) 696; 10 C.E.L.R. (N.S.) 204; 61 F.T.R. 4 (T.D.); Newfoundland Telephone Co. v. Newfoundland (Board of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification), [1991] 1 F.C. 416 (1990), 73 D.L.R. (4th) 653; [1991] 2 W.W.R. 577; 78 Alta. L.R. (2d) 97; 47 Admin. L.R. 265; 114 N.R. 153 (C.A.).

DISTINGUISHED:

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232 (1993), 16 Admin. L.R. (2d) 1; 20 Imm. L.R. (2d) 231; 156 N.R. 212 (C.A.).

CONSIDERED:

Canada (Director of Investigation and Research, Competition Act) v. Imperial Oil Limited, [1990] C.C.T.D. No. 1 (QL); Canada (Director of Investigation and Research, Competition Act) v. Imperial Oil Limited, [1990] C.C.T.D. No. 3 (QL); Canada (Competition Act, Director of Investigation and Research) v. Imperial Oil Limited, [1994] C.C.T.D. No. 23 (QL); Canadian Telecommunications Union, Division No. 1 of the United Telegraph Workers v. Canadian Brotherhood of Railway, Transport and General Workers, [1982] 1 F.C. 603 (1981), 126 D.L.R. (3d) 228; 81 CLLC 14,126; 42 N.R. 243 (C.A.); Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R. (3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Alex Couture Inc. v. Canada (Attorney-General) (1991), 83 D.L.R. (4th) 577; [1991] R.J.Q. 2534; 38 C.P.R. (3d) 293; 41 Q.A.C. 1 (C.A.).

REFERRED TO:

Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 (1994), 17 Admin. L.R. (2d) 2; 164 N.R. 361 (C.A.); Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; (1975), 12 N.S.R. (2d) 85; 55 D.L.R. (3d) 632; 32 C.R.N.S. 376; 5 N.R. 43; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (1993), 18 Admin. L.R. (2d) 122; 52 C.P.R. (3d) 339; 162 N.R. 177 (C.A.).

APPLICATIONS for prohibition and mandamus against the Director of Investigation and Research appointed under the Competition Act in relation to written undertakings given by the respondent Ultramar to the Director to operate an oil refinery. Applications dismissed.

COUNSEL:

Reinhold M. Endres and Louise Poirier for applicant.

Glenn A. Hainey and Michael S. Koch for respondent.

Michael F. Donovan and Nile A. Kaya for intervenor Director of Investigation and Research.

Ronald A. Pink, Q.C., and Leanne W. Macmillan for intervenor Atlantic Oilworkers Union, Local 1.

SOLICITORS:

Department of Justice, Province of Nova Scotia for applicant.

Smith, Lyons, Torrance, Stevenson & Mayer, Toronto, for respondent.

Deputy Attorney General of Canada for intervenor Director of Investigation and Research.

Pink, Breen, Larkin, Halifax, for intervenor Atlantic Oilworkers Union, Local 1.

The following are the reasons for orders rendered in English by

MacKay J.: The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the province of Nova Scotia, (the applicant or the Province), applies by two originating notices of motion, heard together, for judicial review of activities of, and for orders of relief directed to, the intervenor, George N. Addy, the Director of Investigation and Research appointed under the Competition Act of Canada, (the Act), R.S.C., 1985, c. C-34 [as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19], subsection 7(1), (the Director).

The activities of the Director giving rise to concern by the applicant and to the applications for judicial review are in relation to written undertakings given by the respondent Ultramar Canada Inc. (Ultramar) to the Director in connection with that company’s purchase and subsequent operation of an oil refinery at Eastern Passage, Nova Scotia, (the refinery). That plant was acquired by Ultramar from Imperial Oil Ltd. in 1990 after the latter company, by merger, took over the shares of the former Texaco Canada Inc., all under terms generally approved by the Competition Tribunal under the Act on the application of the Director. Among terms of the arrangements for Ultramar’s assumption of the operations of the former Texaco in Atlantic Canada in 1990, Ultramar provided a written undertaking to the Director that, inter alia, it would operate the refinery for a period of seven years barring a material adverse change, and that if such a change occurred within that period it would give 90 days’ notice before taking action to adversely affect the refinery operations. After taking on those operations, Ultramar in 1993 gave a further written undertaking to the Director that if it gave notice of intent to cease operations of the refinery during the seven year period it had committed to operate the plant, it would provide evidence to the Director of its effort to publicly sell the refinery and that there was no prospective buyer interested in operating the refinery.

In May 1994, Ultramar, by letter to the Director gave notice of its intent to close the refinery on the basis of material adverse change. The Director established a process for review of Ultramar’s actions in light of its earlier undertakings and the province of Nova Scotia was an interested party participating by invitation of the Director in the review process. For a variety of reasons the Province concluded that the circumstances gave rise to an apprehension of bias on the part of the Director in his review of the issue whether there had been a material adverse change, and thus by application made September 2, 1994, it seeks an order prohibiting the Director from making a final determination on that issue. When Ultramar subsequently closed its operations at the refinery in October 1994, the applicant filed its second application on October 28, seeking an order of mandamus to require the Director to act to compel Ultramar to continue the operation of the refinery in accord with the company’s undertakings as the Province interpreted them.

These applications raise a number of issues. As a preliminary matter I heard an application by the Atlantic Oilworkers Union, Local 1, for leave to be granted the status of intervenor in relation to both applications, an application heard, and granted on terms, only a week in advance of the date set for hearing of the applications for judicial review. A further issue arose in the course of the hearing when the intervenor, the Atlantic Oilworkers Union, raised issues perceived by the respondent and the Director to be different from those raised by the applicant. The intervenor’s standing to do so was questioned by the respondent Ultramar and the Director, but supported by the applicant, in written submissions made following the hearing. I deal with the admission of the Union as intervenor and the authorized scope for its intervention after determining the primary issues, that is those raised by the applications made by the Attorney General of Nova Scotia.

The respondent Ultramar and the intervenor, the Director, both question the standing of the applicant to seek the relief here sought and both contest the merits of the applications for prohibition and mandamus orders. Implicitly, the nature of the undertakings given by Ultramar, upon which the claims for relief rest, is at issue in these proceedings.

My conclusions on the principal issues raised may be summarized as follows.

1. The applicant has standing to seek judicial review and orders of the nature here sought, in the circumstances of this case.

2. The primary issues raised for consideration by the Court are those necessary for determination of the applicant’s applications, and in relation to these, after assessing submissions of the parties,

i) the application for prohibition is dismissed, and

ii) the application for mandamus is dismissed.

3. Before dealing with the application for mandamus, the nature of the undertakings here in issue is discussed. I conclude that those are more than normal contractual undertakings in certain respects but by their expressed terms they are contractual for purposes of interpretation and enforcement and that the parties to these undertakings are Ultramar and the Director.

4. The application for intervenor status, having been allowed to the applicant the Atlantic Oilworkers Union, Local 1, does not by its terms, or on general principles, permit the intervenor to raise issues not raised by the applicant. The Union urges that it does not raise different issues, but I conclude that in some respects issues different from those presented by the applicant are raised, in particular by written submissions of the Union.

The reasons which follow deal with these issues and determinations, in order, after review of the background circumstances leading to the applications now before the Court.

The background

The Director concluded in 1989 that the merger of Imperial Oil Ltd. and Texaco Canada Ltd. would unduly lessen competition in certain markets and he applied to the Competition Tribunal in June 1989 for a consent order under the Competition Act. The order sought was to direct divestiture of certain assets acquired by Imperial Oil when it acquired the outstanding shares of Texaco, and certain other remedies. The intervenor, the Union, was an intervenor in the proceedings conducted by the Tribunal and it appears to have played a prominent role in regard to issues relating to the operations of former Texaco assets in the Atlantic provinces. The province of Nova Scotia did not intervene in those proceedings, though both Quebec and Newfoundland did through their respective attorneys general.

By its decision of January 26, 1990 [[1990] C.C.T.D. No. 1 (QL)], the Competition Tribunal, in relation to the Director’s application, approved only part of the proposed consent order, and the decision stated, in part (at page 13 and at pages 65-66 respectively of the decision):

With respect to the Atlantic region, the provisions relating thereto will only be approved if either:

(i) all assets in the region are divested; or

(ii) additional evidence respecting the financial resources, expertise, experience and plans of the purchaser are presented to the Tribunal sufficient to demonstrate that the purchaser of the Texaco Atlantic assets will in fact be a vigorous competitor in the Atlantic region comparable to Texaco, the competitor it is replacing.

and

… the provisions of the RDCO [revised draft consent order] with respect to the Atlantic region gave the Tribunal the most difficulty. In summary, those provisions raise the question … as to what degree of divestiture, in the case of an uncompetitive pre-merger market situation, short of full divestiture of all the assets in that geographic area will meet the required test. Two members of the Tribunal are … not convinced that the provisions of the DCO [draft consent order] or RDCO are such as, in all likelihood, will eliminate the substantial lessening of competition in the Atlantic region which it is presumed will arise as a result of the merger.

Subsequently, in February 1990 [[1990] C.C.T.D. No. 3 (QL)], the Competition Tribunal granted a consent order implementing its decision, which contained provisions acceptable to the Tribunal, the Director and Imperial Oil Ltd. Included were the following provisions relating to divestiture by Imperial Oil of the Texaco Atlantic assets [at pages 8, 12, 17 and 19 of QL].

1. The purpose of this Order is to maintain the continued competitive presence of viable petroleum refining, wholesaling and retailing assets such that the acquisition, direct or indirect, by Imperial, by purchase of shares, of control over the business of Texaco will not prevent or lessen, or be likely to prevent or lessen, competition substantially in the downstream sector of the Canadian petroleum industry.

…

5. All divestitures provided for herein are subject to the prior approval of the Director ….

…

12. In the Atlantic Region, Imperial shall divest all of the following assets (which are more fully described in Schedules 1, 2, 3 and 4):

(a) The Eastern Passage Refinery ….

…

14. The divestiture of the [sic] assets in the Atlantic Region shall, to the extent reasonable and possible, be to a single purchaser who, in the Director’s opinion, has the intention and the ability to become a vigorous and effective competitor in the Atlantic Region. In exercising his rights of approval under this Order and in accordance with the provisions of the Act, the Director, in addition to the considerations with respect to acquisitions provided for in the Act, will have regard for:

(i) the financial soundness of the proposed purchaser of the assets and their continued operation;

(ii) the business plans of the proposed purchaser for continued maintenance and operation of the assets; and

(iii) the availability to the proposed purchaser of technical and marketing expertise to continue operation of the assets on an integrated basis.

Thereafter, the Director conditionally approved the purchase by the respondent Ultramar of the former Texaco Atlantic assets, including the refinery, from Imperial Oil. Terms of that approval included certain undertakings by Ultramar, set out in its letter of September 24, 1990 to the Director. That letter set out in part as follows:

This will serve to confirm that in consideration of, but conditional upon, the receipt of the Director’s Approval of the proposed acquisition of the Texaco Canada Atlantic Assets from Imperial Oil Limited by Ultramar Canada Inc., under the provisions of the Competition Act and the Consent Order dated February 6, 1990 between the Director of Investigation and Research and Imperial Oil Limited et al of the Competition Tribunal, and the actual completion of the transaction, Ultramar Canada Inc. (“Ultramar”) undertakes to the Director as follows:

…

3.   Dartmouth Refinery Continued Operations

Ultramar intends to continue to operate the Dartmouth Eastern Passage refinery. Specifically:

A.   The refinery shall be kept operating for a minimum of seven years from the date of the closing of the purchase of the Texaco Canada Atlantic Assets barring a material adverse change.

If a material adverse change occurs in this seven year period, Ultramar shall provide the Director with a minimum of 90 days’ notice prior to taking any actions adversely affecting the continued operations of the refinery.

B.   Attached as Schedule “C” to these undertakings is a proposed investment programme for the Dartmouth refinery, which Ultramar will carry out in accordance therewith.

4.   Reports to the Director

Ultramar will provide to the Director, at least annually, a written report together with such additional oral or written reports as the Director may request, concerning the performance of its undertakings and will provide the Director with such additional information as he may reasonably require for the purpose of enabling the Director to determine the manner and extent of the implementation of the undertakings.

…

Ultramar agrees that these undertakings and this agreement shall be conclusively deemed to be a contract made under and for all purposes be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.

In its letter of undertakings Ultramar agreed that the terms of the undertakings might, on application by the Director, be made part of a consent order of the Competition Tribunal under section 105 [as enacted by R.S.C., 1985 (2nd Supp.), c. 19, s. 45] of the Competition Act, but no application to do so was made.

Schedule “C” in the letter of undertakings dealt with the refinery, and set out reasons why Ultramar believed it could ensure continued operations. The Schedule also set out a number of projects for possible investment in improvements at the refinery, totalling some $48 million, in addition to annual plant maintenance expenditures.

The undertakings were meant to be taken into consideration by the Director in his decision to grant approval under the consent order of the Tribunal made in February 1990. The arrangements made with Ultramar, including its written undertakings, were approved by the Director and Ultramar acquired the former Texaco Atlantic assets from Imperial.

On October 25, 1993, after discussions with the Director, Ultramar wrote to him and made further undertakings. Referring to the letter of September 24, 1990 and particularly the undertaking then given to continue operation of the refinery, the letter of October 25 then set out, in part:

This letter serves to confirm that in the event that Ultramar Canada Inc., as required by the undertakings of September 24, 1990, provides notice to the Director respecting any action which will adversely affect the operation of the refinery, more particularly notifying the Director of its intention to cease operation of the refinery prior to the expiry of the seven year term provided for in the undertakings of September 24, 1990, Ultramar will, after having reviewed this matter with the Director, provide to the Director evidence establishing whether there is any reasonable, legitimate continuing interest on the part of a viable party in maintaining the refinery as an operating business in Canada. It will be sufficient to satisfy this undertaking if Ultramar establishes, to the Director’s satisfaction, that it has publicly marketed the refinery, without unreasonable restriction on the price, and there is no legitimate expression of interest to purchase the refinery and continue its operation.

In late April and early May, 1994, the applicant, the Director and the Union, all learned from various sources that Ultramar was contemplating closing the refinery. Counsel for the Union, then acting also for the Province, was assured by the Director’s staff that “the views of interested parties, especially those of your client, will be sought and considered” in the assessment of any assertion by Ultramar of material adverse change preliminary to its adversely affecting the refinery operations.

On May 10, 1994, Ultramar formally notified the Director of its conclusion that there was a material adverse change, as provided under the 1990 undertaking. It gave the Director the 90-day notice provided in that undertaking that it intended to cease operations at the refinery, and it confirmed that it was prepared to offer the refinery for sale. Ultramar’s general intentions were then known to all the parties in these proceedings.

On June 1, 1994, at a meeting with the Director at the Province’s request, the Director advised provincial representatives of the position taken by Ultramar; that he would be assessing that position, and that he would give interested parties, including the Province, an opportunity to make submissions before he made a decision on the issue of material adverse change. The Province requested a copy of all information provided by Ultramar but the Director refused since Ultramar had declined to grant permission to provide the Province with that information which was considered confidential as related to Ultramar’s commercial operations. On June 9 then counsel for the Province, who was also counsel to the Union, wrote to the Director setting out his understanding that material adverse change as used in the 1990 undertaking meant a catastrophic event in the refinery, not simply a lack of sales or a lack of investment or the result of normal market forces.

On June 27, 1994, Ultramar again wrote to the Director setting out the company’s view on material adverse change and providing information earlier requested by the Director relating to that matter.

On July 7, 1994, the applicant received a letter from the Director, which stated in part:

A process has been established in order to determine whether material adverse change has occurred, as required in the September 24, 1990, Undertakings …. Shortly, I will make available a summary of Ultramar’s submissions to all those parties who have expressed an interest in the status of the Dartmouth Refinery. Concurrently, I will provide all these interested parties with my initial views regarding Ultramar’s claim of material adverse change. All interested parties will then have twelve days in which to make further submissions to my office. Once I have received the views of third parties, I will then make my final determination.

Counsel then acting for the Province and the Union acknowledged the Director’s letter. Subsequently, on July 14, 1994, new counsel then representing the Province sent a letter by fax to the Director and requested that, before a “tentative recommendation” was made by the Director, the Province have an opportunity to meet and present to him its concerns and its assistance. There was no response directly to that request but an acknowledgement on July 22 on behalf of the Director, indicated some uncertainty at the time about who was representing the Province, and it urged the Province to provide its submissions as soon as possible, in response to the Director’s invitation some four days earlier.

By letter of July 18, 1994, a letter on behalf of the Director was sent to the Province referring to the process underway and it enclosed a memorandum “setting out the initial views of the Director on the issue of material adverse change and information on which those initial views are based”. The covering letter noted that the Director had been considering the issue of material adverse change on the basis of information obtained from Ultramar and other sources which had been analyzed by the staff of the Bureau of Competition Policy and an industry expert retained by the Director. Interested parties were to be given the opportunity to make submissions in respect of the issue of material adverse change before the Director made a final decision, and submissions were requested not later than August 1, 1994. The covering letter noted “the package does not contain all of the information on which the Director’s views are based, as certain material cannot be disclosed for reasons of commercial sensitivity. However, it is felt that the information disclosed is sufficient for interested parties to be in a position to make submissions on the issue.”

The memorandum, including the initial views of the Director, sets out in part:

On balance, the Director’s initial view on the basis of Ultramar’s submissions, his review of the supporting documentation provided by Ultramar, and the analysis of this information by his staff and consulting expert, is that there has been a material adverse change which warrants Ultramar being released from its obligation to continue operation of the Dartmouth Refinery. The decrease in refining margins, combined with other less significant changes in the market, has resulted in the Dartmouth Refinery, which was a marginal facility at the time the 1990 Undertakings were given, becoming an inefficient source of supply for refined petroleum products in the Atlantic provinces. The current market environment is one which has arisen independently of actions by Ultramar. Its ability to supply the market in a more cost effective manner is the result of business decisions taken in reaction to the changes in market circumstances which it has faced since 1990.

In the introduction to the memorandum its purposes are set out as follows:

The memorandum and attachments are intended to allow interested third parties to make their own submissions on this matter to the Director. Submissions must be received by the Director on or before August 1, 1994. The views and information supplied by third parties will be considered, along with Ultramar’s submissions, by the Director, who will then make his final determination with respect to this matter.

On July 19, 1994, the applicant requested additional time to make its submissions to the Director on material adverse change and on July 26, 1994, it was informed that with the consent of Ultramar the deadline for submissions was extended to August 26, 1994. The extension was requested by the Director, it is said, because of the pending expiry of the 90-day notice under the 1990 undertakings.

On August 19, 1994, the applicant requested from the Director additional information respecting actual marketing margins at the refinery, to assist in preparation of its response to Ultramar’s submission and the Director’s initial views. Then on August 26, 1994, the Province forwarded its submission on material adverse change to the Director. Simultaneously it advised that it planned to bring an application for prohibition based on a reasonable apprehension of bias on the part of the Director.

On August 30, 1994, the applicant was invited to meet with the Director and members of his staff to discuss the applicant’s submission on material adverse change and its concerns. The applicant was also provided with information in response to its earlier request for margins information. On September 1, 1994, the applicant agreed to meet as proposed on September 8, but noted that the Province would probably file an application for prohibition against the Director before the meeting. It was suggested that in those circumstances the Director ought not to be further involved in the matter but rather should arrange for an alternate to act in relation to the decision about material adverse change. The originating motion seeking an order of prohibition against the Director based on a reasonable apprehension of bias was filed on September 2, 1994.

On September 8, 1994, provincial officials met with the Director and his advisers in Ottawa at a meeting presided over by the Director. At that meeting the Director stated that its purpose was to allow the Province to go through its submission and he stated that he wanted to make it clear he had not made any final decision on material adverse change.

On September 28, 1994, counsel for the Director advised the applicant that the Director would be in a position to deal with the material adverse change issue on September 30. However, he had not done so when, on October 3 an officer of the Director’s office advised that the Director had decided it would be inappropriate for him to make a final determination on material adverse change while the applicant’s prohibition application was outstanding.

On October 4, 1994, counsel for the applicant advised Ultramar, with a copy of the advice to the Director, of the Province’s position that since the Director had decided he would not rule on material adverse change at the time, Ultramar was bound by its undertakings to continue operating the refinery until that issue was determined. That position was further urged by the Province to the Director’s office on October 7 when counsel for the Province wrote to demand that the Bureau commence action immediately against Ultramar, for “breach of contract and any other cause of action that may be available. Based on Ultramar’s breach of its contractual undertakings to the Director of September 24, 1990 and October 25, 1993 we would hope that the Bureau would also see fit to apply for interim injunctive relief”. On the same day, October 7, the Province also wrote to a solicitor for the Director urging that the 1990 undertaking be enforced against Ultramar.

On October 9, 1994, Ultramar ceased processing crude oil through the refinery and began the process of winding down the refinery operation. There was further correspondence between counsel for the Province and counsel for the Director but no further steps were taken except that on application by the Province its originating motion in relation to the prohibition application was amended with approval of the Court.

On October 28, 1994, the applicant filed its second application, seeking by originating motion an order in the nature of mandamus to require the Director to enforce the 1990 undertakings given by Ultramar. A later order of the Court changed the status of the Director, originally a respondent in these two proceedings, to that of intervenor, in accord with the decision of the Court of Appeal in Canada (Human Rights Commission v. Canada (Attorney General), [1994] 2 F.C. 447 (hereinafter “Bernard”).

On November 4, 1994 [[1994] C.C.T.D. No. 23 (QL)], the Competition Tribunal dismissed an application made by the Atlantic Oilworkers Union, Local 1, an intervenor in these proceedings, in which the Union requested that the Tribunal assume jurisdiction over the issues raised by the closure of the refinery and the enforcement of the Ultramar undertakings. Mr. Justice Rothstein, for the Tribunal, ruled that the Tribunal had no jurisdiction to enforce, or to require the Director to enforce, the Ultramar undertakings.

Standing of the Province to seek relief

Both the respondent, Ultramar, and the intervenor, the Director, question the standing of the applicant to bring these judicial review applications and to seek the relief here requested. The relief requested is:

1) an order of prohibition against the intervenor, the Director, to prohibit him from making a final decision on material adverse change—so that some other appropriate person, whether designated by the Director as seems to be implied by the applicant, or named by this Court as the intervenor union requests, should make that determination; and

2) an order of mandamus against the Director, requiring him to enforce Ultramar’s undertaking to operate the refinery until it is determined by the Director, or by another in his stead, that a material adverse change has occurred, or until expiry of the undertaking.

This issue of standing concerns the application of subsection 18.1(1) of the Federal Court Act, R.S.C., 1985, c. F-7, as enacted by S.C. 1990, c. 8, s. 5, which provides:

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

There is little jurisprudence as yet dealing with subsection 18.1(1). There are, of course, numerous authorities which relate to the general question of standing, including Supreme Court of Canada decisions which set out the principles generally applicable in issues of standing, including the cases which set the modern base for standing in the public interest. See Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; and Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607. These cases establish the general principle that standing will be granted to a public interest group to challenge the exercise of administrative authority where the applicant demonstrates a genuine interest as a citizen, a serious issue is raised, and there is no other reasonably effective manner to bring the issue before the Court.

In this case the Director submits that the words “directly affected” within subsection 18.1(1) have a relatively narrow meaning, one antedating the Supreme Court decisions concerning standing in public interest causes. The words are the same as those used in the former subsection 28(2) of the Federal Court Act which provided, until 1992, for review by the Court of Appeal of federal boards, commissions or tribunals exercising a judicial or quasi-judicial function. The same words were deliberately chosen by Parliament when section 18.1 was enacted to amend the Federal Court Act and to provide specifically for proceedings for judicial review.

This argument was considered and rejected by my colleague Madam Justice Reed in Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229(T.D.). She commented, in part (at page 283):

… I cannot conclude that when Parliament amended the Federal Court Act … that it intended to limit judicial review under subsection 18.1(1) to the pre- Thorson, Borowski, Finlay test. I think the wording in subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted. (This assumes there is a justiciable issue and no other effective and practical means of getting the issue before the courts.)

A variety of grounds for refusing the Province standing are here urged by Ultramar and the Director. At the risk of oversimplifying their submissions, my summary views on their submissions may be set out as follows.

a) It is urged the Province is not “directly affected by the matter in respect of which relief is sought” for that “matter” is the Director’s final view as to whether there has been a material adverse change as provided in the 1990 undertaking. It is said the Director’s final conclusion on that matter has no direct effect on the Province’s interests, for only after that determination, and subsequent action is taken will there be any effect of the Director’s decision and action. Perhaps there will be no effect, if he concludes there has been a material adverse change.

In my view this puts too narrow a construction on the words “directly affected” in subsection 18.1(1). That same argument would preclude any party, including Ultramar in other circumstances, from applying for judicial review of the decisions of the Director with reference to the undertakings, for “directly affected”, in these terms, would preclude standing except where an action, not just a decision, by the Director would affect the interests of a party.

b) It is urged that the applicant, the Attorney General of the Province, has no role in protection of public interests in the circumstances of this case, since it is urged that those interests arise here in the context of competition in the market place, and public interests of that sort are within the authority of the Attorney General of Canada.

The argument is without merit in my view. Conceding that public interests as regulated by Parliament do lie within the authority of federal authorities, including the Director and the Attorney General of Canada, aspects of competition in the provincial market not yet regulated by Parliament are legitimately within the concerns of the Province, and other public interests, arising in relation to matters within provincial legislative competence which lie within the authority of the Attorney General of the Province and his or her colleagues, may be affected by the exercise of federal legislative power.

c) It is urged that the Province is not genuinely interested in the matter here sought to be reviewed because that is a matter arising from federal regulation of competition, even within the provincial market, and the Province’s principal interest here is in maintaining operations of the refinery and the employment that has provided, and only secondarily, if at all, in maintaining competition.

In my view, this argument seeks by classifying the Director’s decision, with reference to its origins in federal administration, to isolate it from the concerns of others, as though interests arising in other contexts and from other responsibilities may not be affected by the decision and action, or lack of it, by the Director. That is not how life and society carry on, as the Director’s own early action in welcoming submissions from the Province, and others, recognizes.

d) Finally, it is urged that the cases dealing with public interest standing concern actions for declaratory relief and they do not readily apply where the relief sought is in terms of prohibition and mandamus orders. The latter relief it is said requires that standing be accorded only where a public duty is owed to the applicant and the authority responsible refuses to perform the duty.

I am not persuaded that limitations in relation to standing as once related to the form of relief sought, if they were ever significant, are so any longer, in light of section 18.1 which simply sets out the process for the general remedy of judicial review. Within that general remedy an applicant may seek an order which has historic roots in special and extraordinary forms of relief, and the limitations on those forms of relief may still be applicable in determining whether the relief sought should be granted, but not in determining whether the applicant has standing to seek the relief by application for judicial review. Further, subsection 18.1(1) includes the normal proceedings now for seeking declaratory relief and it cannot be assumed, in my view, that Parliament by use of the term “directly affected” intended to restrict standing in public interest cases to the historic view antedating the Supreme Court’s decisions beginning with Thorson. Rather, those cases must be assumed to inform the interpretation of subsection 18.1(1).

Having set aside the reasons suggested for denying standing to the Province, let me turn to those suggested by the Province which support its standing here, for where standing of an applicant under subsection 18.1(1) is questioned the Court must find a basis upon which to recognize a party’s standing.

In Canadian Telecommunications Union, Division No. 1 of the United Telegraph Workers v. Canadian Brotherhood of Railway, Transport and General Workers, [1982] 1 F.C. 603(C.A.), the Court held that a union not affected by a decision of the Canada Labour Relations Board, but which may eventually be affected, was not a “party directly affected” within subsection 28(2) of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] as it then provided. Le Dain J.A. in concurring reasons, said in part (at pages 612-613):

The difficulty … is to determine whether in the very special circumstances of this case the applicant should be considered to have been directly affected by the decision of the Board … [which recognized one union as successor of another] … as bargaining agent for the unit of telecommunications employees covered by the existing collective agreement …. What this involves in my opinion is a determination whether that decision directly affected an interest which the Court should recognize as sufficient for standing. The recognition of standing, at least where the interest on which it rests cannot be clearly defined in terms of legal right or obligation, is a matter of judicial discretion ….

Madam Justice Reed, as we have seen, in Friends of the Island, interpreting subsection 18.1(1), described the judicial discretion in question as turning upon assessment of the particular circumstances of the case and “the type of interest which the applicant holds”, presumably provided that interest is affected by the matter on which judicial review is sought.

The applicant contends it has sufficient interest to be recognized for standing in seeking the relief for which it applies for a number of reasons. Its interests are identified in its submissions to the Director, made on August 26, 1994, as relating to its concerns regarding competitiveness in the provincial market, on which much of its submissions concentrate, as well as its general interests in maintenance of the refinery operations and the employment it provided. The Province’s interests in competition in the local market, particularly at the retail level, is demonstrated by longstanding regulatory activity of the Province in relation to marketing of petroleum products, including regulation of prices. Counsel points also to the role of the applicant in representation of the Province’s public interests, a role not readily open to members of the general public, a role recognized by the Director in inviting submissions from the Province, and a role which the Competition Act itself recognizes for a provincial Attorney General who, under section 101 [as enacted by R.S.C., 1985 (2nd Supp.), c. 19, s. 45], has standing before the Competition Tribunal in regard to merger issues before it. It is urged that just as the applicant might have participated in hearings before the Tribunal in 1989 and 1990 in regard to the Imperial-Texaco merger, including consideration of provisions for divestiture of former Texaco Atlantic assets later acquired by Ultramar, so it ought not to be denied standing to question the process followed by the Director in follow-up of the arrangements based on the decision and consent order of the Tribunal. It is suggested by those opposed to standing that failure of the Province to participate in the 1989-90 proceedings of the Tribunal is somehow indicative of a lack of genuine concern, now, in competition issues in the local market, but I am not so persuaded.

In my opinion, the Province’s interests in competition in the local petroleum market and its interests in continued economic activity and employment at the refinery cannot be taken as other than genuine, important public interests which only the Province can represent. These are interests which are affected, in my view, as a result of the activity of the Director in dealing with the issue of material adverse change as raised by Ultramar under the 1990 undertaking. It may be true that the Province’s interests are most directly affected by any subsequent decisions made and actions taken following the Director’s final assessment of material adverse change. Yet applying that provision of the undertaking is an essential precedent to any action in regard to the refinery, whether that action be by the Director, as the Province’s application for mandamus would require, or by Ultramar, as in fact has happened when it determined that it would close down the refinery after concluding, by itself, that its undertakings were fulfilled and that material adverse change had occurred. Ultramar’s unilateral action to close the refinery came after the Director had determined not to decide the issue of material adverse change while these proceedings for prohibition were unresolved.

In the circumstances of this case, the interests of the Province being genuine and important, the issues raised, i.e., the alleged apprehension of bias on the part of the Director in the process here followed, and his obligations in relation to undertakings of Ultramar, are clearly justiciable issues. It is urged that other means were available to resolve those issues, in particular it is said that the application made by the intervenor Union to the Competition Tribunal, for the Tribunal to assume oversight of the responsibilities of Ultramar under its undertakings, while unsuccessful, was not appealed or questioned by proceedings in the Court of Appeal. That suggested process presumes the same interests are here in issue for the Union as for the Province, a matter by no means established. The Union’s efforts in dealing with the Tribunal were not, in my opinion, an alternative process for raising the issues here raised by the applicant, for those issues relate to the applicant’s own interests, and perceptions of how those interests are affected.

In the result, the circumstances here clearly warrant recognition of standing for the applicant to seek the relief sought by way of proceedings for judicial review.

Prohibition

The Province contends the Director in considering the issue of material adverse change has acted in a manner creating a reasonable apprehension of bias, contrary to the rules of, and his responsibility to provide, procedural fairness.

The actions said to give rise to this apprehension are some thirteen in number. I summarize those in general terms as follows.

-     The initial decision of the Director was made on the basis of submissions by Ultramar alone, which submissions were not revealed in any way to the Province until after the initial decision, and with no provincial input at that early stage despite the request of the Province in mid-July 1994 for an opportunity to meet with the Director before he made his initial decision.

-     When the Director provided information about Ultramar’s submissions to the Province, only a summary of those, selected information, was provided, and other information before the Director when his initial decision was made was kept from the Province on grounds it was confidential, including information on actual margins. The latter left the Province to respond to generalized market data rather than to actual financial data of Ultramar.

-     An industry expert retained as an advisor by the Director had some 30 conversations with consultants retained by Ultramar in the course of the latters’ preparation of Ultramar’s submissions. No information about these conversations was provided to the Province and the expert had no contact with provincial representatives until the meeting on September 8 when his comments, made in public at the meeting, were considered by provincial representatives to be demeaning and belittling of the Province’s submissions, without any constructive comment.

-     Initially the Director provided an unreasonably short time for submissions in response to his initial decision and the information provided concerning Ultramar’s submissions, a time extended only after consent was obtained from Ultramar. I note the consent was, in effect, Ultramar’s agreement to extend the 90-day notice period under the 1990 undertaking, before it would take steps to affect operations of the refinery.

Some of these factors and certain others, in my view, are not relevant in any way to the assessment of a reasonable apprehension of bias, because they occurred after the application for prohibition commenced. Thus, the Director is said to have erred in presiding at the meeting on September 8 despite the Province’s objection, and the filing of its application for prohibition on the basis of an apprehension of bias on the part of the Director. Further, the Director is said to have erred in refusing to act or even to ask for continuing operation of the refinery, when Ultramar began to shut it down, at least until the issue of material adverse change was determined. The apprehension of bias is also said to be reinforced by the manner of the Director’s participation in these proceedings, in opposing the applications for judicial review and challenging standing of the applicant. Undoubtedly the Director acted on the basis of advice in all these matters. All of them may be of concern to the Province but they occurred after the originating motion for prohibition was filed and, in my opinion, they are not factors to be considered in assessing the reasonable apprehension of bias here alleged.

I note that the manner of the Director’s participation in these proceedings, in my view, was somewhat more adversarial than is consistent with the principles relating to federal agencies that are subject to judicial review as enunciated by Estey J. in Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684. The role of the Director in this case originated in his original status as respondent in these proceedings, though the role as outlined by Estey J. would be applicable to an agency named as respondent, or as intervenor, as the Director was here made in keeping with more recent teaching of the Federal Court of Appeal in Bernard, supra.

The intervenor Union suggested other factors also be considered in assessing the apprehension of bias alleged. The Union and the Director are the only parties here involved who were active participants in the process under supervision by the Competition Tribunal and the Director in 1989-90, first in the Imperial-Texaco merger and then in the subsequent acquisition by Ultramar of former Texaco Atlantic assets. It is the Union’s submission that the initial position of the Director in that process as set out in a draft consent order was rejected by the Tribunal, as was a revised position of the Director. The Tribunal, concerned throughout to ensure maintenance of competition in the Atlantic market, agreed to the terms of the February 1990 consent order, reflecting the Director’s third position. Key to that position of the Tribunal, and to the terms of the consent order, was clause 14 of the order, so the Union believes, by which it was sought to ensure maintenance of all key elements, including the refinery, of Texaco Atlantic assets, essentially as one integrated operation. Now, it is urged, the actions of the Director mirror what was originally proposed in 1989 but rejected by the Tribunal. In short, the suggestion is that the Director has simply held fast to a view adopted by his office in 1989, not then acceptable to the Tribunal, but now given new life by the Director. I am not persuaded that there is evidence that would support findings of fact on which this perception of the Union is based.

That perception rests on arguments different from those advanced by the Province. Counsel for the Union urges that the Director has erred by violating the rules of natural justice in two respects. The first is by denying to affected parties a right to be heard in relation to three fundamental issues. These issues include the definition of the words “material adverse change” as used in the 1990 undertaking, the question whether Ultramar has demonstrated a material adverse change has occurred sufficient to release it from its undertakings, and the overall definition and scope of the 1990 undertaking, particularly regarding its enforcement by the Director. Counsel for the Union points to the advice received from the Director’s office in May assuring that interested parties would have opportunity to be heard before a determination was made. It is urged further that by his initial decision in July, based on his assessment only of Ultramar submissions, the Director had defined “material adverse change” and had determined that Ultramar had demonstrated such a change had occurred. Then, in October when it became apparent Ultramar was shutting down the refinery, counsel for the Director had advised that his understanding of the undertakings gave him no basis to insist that Ultramar continue operations; such insistence in his view would only be possible by court order.

In my opinion, there is no factual basis for the Union’s arguments concerning the denial of natural justice in respect of a right to be heard in relation to the issues here raised. The right to be heard does not imply a right to have one’s views accepted. Counsel for the Union, on June 9, 1994, when apparently acting as a representative of both the Union and the Province did write to the Director setting out his interpretation of the undertaking and the meaning of “material adverse change”. He was aware of the process thereafter when others represented the Province, but the Union, for reasons important to it, did not make submissions in response to the Director’s invitation with his initial decision on July 18, 1994. The Province clearly had opportunity to be heard in relation to the definition of material adverse change and whether Ultramar had demonstrated that such a change had occurred, and it took the opportunity to make submissions, in writing, by the extended deadline in August, and orally at the meeting with the Director on September 8. Clearly it was not denied the opportunity to be heard on matters now raised by the Union, even if it is concerned about the process in which its submissions were made. Moreover, both the Province and the Union made representations to the Director that he should require Ultramar to operate the refinery at least pending final determination of whether a material adverse change had occurred. They were not successful in persuading the Director to act as they wished, but neither was denied the opportunity to set out an interpretation or understanding of the 1990 undertakings and their perceptions of the Director’s obligations under those.

For the Union it is urged that the second principle of natural justice violated by the Director is that ensuring the right to appear before a disinterested and unbiased adjudicator. It supports the submissions of the Province, urging that the Director has demonstrated an attitudinal bias which gives rise to a reasonable apprehension of bias, presumably based on the Union’s perception that regular market forces were not intended by the Tribunal to be sufficient grounds for ceasing operation of Texaco Atlantic assets as an ongoing entity to shore up competition in the regional market. Yet the Director, who originally proposed a consent order recognizing those forces, is now said, on the basis of his initial view, to interpret the undertakings arranged in 1990 in light of those market forces. The Union shares the view of the applicant “that the Director was acting in a primarily adjudicative fashion or quasi-judicial capacity” and was accordingly required to act in an even handed way and to conduct the proceedings before him in a way that ensured no reasonable apprehension of bias was demonstrated. Here it is submitted that was not so. Moreover, both the applicant and the Union contend that in interpreting the 1990 undertakings only those factors recognized in 1990 as relating to material adverse change should now be considered, and those did not include regular market forces. As an alternative the Union submits that if the Director is found to be acting in a preliminary, investigative and administrative capacity then, with regard to the definition of material adverse change, the mind of the Director was so closed as to make further submissions futile.

The latter, alternative, submission in my view, is not supported by evidence on the record. Moreover, it suggests there is actual bias, at least in interpretation of the principal term at issue in the 1990 undertaking. That goes beyond the concerns of the Province which was careful in argument before me to make clear that it did not claim actual bias on the part of the Director, rather its claim for relief is based on a reasonable apprehension of bias in the circumstances of this case.

For Ultramar, counsel urges that in view of the Director’s role, here a preliminary, investigative and administrative role, rather than an adjudicative role, it would be unreasonable to apply a court-like “reasonable apprehension of bias standard of impartiality”. Rather, it is said the appropriate requirement is that he keep an open mind and here he did, making it clear on numerous occasions that he would not make a final determination on the question of material adverse change without first considering the Province’s submissions, as well as those of others.

In Newfoundland Telephone Co. v. Newfoundland (Board of Public Utilities), [1992] 1 S.C.R. 623, Mr. Justice Cory for the Court said, in relation to the duty of boards, which comments in my view are equally apt in regard to administrators (at pages 636, 638 to 639):

All administrative bodies, no matter what their function, owe a duty of fairness to the regulated parties whose interest they must determine.

…

Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal …. The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.

…

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre- judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.

…

Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing …. It is simply a confirmation of the principle that the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the Board which is being considered ….

When one applies these principles to the case at bar the starting point is to determine the role of the Director in this matter in accord with the governing statute, the Competition Act. Any duty of fairness owed by the Director to the applicant here is dependant on that role. The purpose of that Act as set out in section 1.1 [as enacted by R.S.C., 1985 (2nd Supp.), c. 19, s. 19] is:

1.1 … to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.

The Director of Investigation and Research, the intervenor here, appointed under section 7 of the Act, plays an important role in investigation and research in relation to business activities, with a view to serving the general purposes of the Act. His work may lead to criminal prosecutions under the Act, or to civil regulatory arrangements under Part VIII, subject to approval of the Competition Tribunal. The powers of the Director here concerned arise under arrangements made with the approval of the Tribunal by its consent order in February 1990, and, within those terms, under the arrangements made between Ultramar and the Director, including Ultramar’s undertakings.

The Director has no power to adjudicate between competing interests of Ultramar and the Province, not under the enabling statute, not under the express terms of the Tribunal’s consent order, and not even under the terms of the undertakings by Ultramar. I note that even if the terms of the undertakings could be interpreted to permit him to adjudicate between competing interests of Ultramar and the Province, that role could only be valid if authorized by the Competition Tribunal, or for the Director, within the terms of enabling legislation. Here the legislation providing for the Director’s role, the Competition Act does not so authorize, in my view.

The Director does not here exercise an adjudicative function simply by assessing whether Ultramar has established that a material adverse change has occurred, i.e. by interpreting the undertaking. Moreover, in my opinion, he is free within the terms of his statutory authority to devise processes for dealing with matters that lie within his investigatory and administrative functions, including the process here developed, that of reaching an initial decision which interested parties are invited to respond to, where his assurance throughout has been that he will not make a final determination until after consideration of all timely submissions of interested parties.

It is urged for the Province that the Director’s function here is akin to that of the National Energy Board in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, but I am not so persuaded. Here the Director was not determining which, if any, among parties applying should be permitted to undertake a particular action, as the Energy Board was, in that case, essentially adjudicating among competing interests. Rather, here the Director was assessing a situation to determine facts and to consider the application of Ultramar’s undertakings to those facts. In my view, that function was a typical administrative function exercised by the Director in light of his role in investigating and enforcing public policy. His invitation for interested parties to make submissions did not require that he “hear” those submissions other than by considering them with an open mind as to his final determination.

For Ultramar, it is urged in written submissions that the Director did not owe Nova Scotia a duty of procedural fairness in this case because of the nature of the decision to be made, and because there was no relationship with the Province which raised any obligation on his part to accord procedural fairness to the applicant, the Province. As intervenor, the Director does not echo that submission. In my opinion there is a relationship of the Director to the Province, as to other interested public and private agencies and individuals, a relationship that arises from the Director’s public responsibilities, a relationship that does support a duty of procedural fairness owed by him to the Province or the Union, or any other interested party, which expresses a timely interest in matters of concern to him. That duty may vary depending upon the matter before the Director and the circumstance in which it arises. Here, the question is what is the nature of that duty and was it breached so that the Court should intervene.

In my opinion the function of the Director in assessing whether Ultramar has met its undertakings is not one in which a reasonable apprehension of bias is an appropriate standard. That is a standard appropriate to the task of selecting among competing interests, i.e. an adjudicative task. It is not a standard applicable to an administrative task undertaken by one who has a public duty to serve interests established by an enabling statute. In the latter circumstances one would anticipate a bias to serving those interests, and indeed that is the reason for being of many administrators. In serving those interests the administrator may well owe a duty of fairness to those whose interests his own determinations may ultimately affect, but that duty may be discharged by providing interested parties an opportunity to be informed of the issues or matters under consideration and a chance to make submissions in regard to those, which submissions, made in timely fashion, are to be considered by the administrator with an open mind, except for his legitimate bias or duty to serve his statutory goals, before his decision is made.

I am not persuaded that in the circumstances of this case the Director violated his duty of providing a fair procedure for the Province to make its submissions, or threatened to violate his duty of fairness to the Province, so as to warrant intervention, by order, of this Court.

Further, I am not persuaded such an order could be effective in furthering the objective the applicant seeks, i.e. having someone other than the Director make a final determination whether a material adverse change has occurred since the undertaking of 1990 was given. The Court has no authority to order any other public or private official to act in lieu of the Director. Any one named by the Director to do so, if a person or officer was so named, could only be a delegate or designate of the Director himself. There may well be legal issues, here unexplored, whether the Director could so designate or whether anyone else could act with or without the Director’s delegation.

I sum up. In light of the Director’s function, here in issue, an administrative discretionary function, in my opinion the reasonable apprehension of bias standard of impartiality is not applicable to assess the process in which the Director is engaged. Because of his public responsibilities, in my view the Director does owe a duty of ensuring fair procedures and opportunities for interested parties to make submissions in relation to matters of concern to him and he must keep an open mind, subject to his public responsibilities, in considering submissions made to him. In this case there was no violation of that duty of fairness to warrant intervention by this Court.

For these reasons, I dismiss the application for an order prohibiting the Director from making a final determination on whether a material adverse change has occurred since the undertaking of 1990 was given by Ultramar.

The nature of the undertakings by Ultramar

In my view, the undertaking given in 1993 is simply an addendum to the original undertakings of 1990. Their nature and the responsibilities and remedies they create are best assessed from the 1990 undertakings which are more descriptive of their general scope and intent. The key provisions here in question, as we have already seen, are these:

A.   The refinery shall be kept operating for a minimum of seven years … barring a material adverse change.

If a material adverse change occurs in this seven year period, Ultramar shall provide the Director with a minimum of 90 days’ notice prior to taking any actions adversely affecting the continued operations of the refinery.

…

Ultramar agrees that these undertakings and this agreement shall be conclusively deemed to be a contract made under and for all purposes be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.

Undertakings are not provided for in the Competition Act or in the order of the Tribunal which led to these undertakings. As a device they are referred to in general terms in Alex Couture Inc. v. Canada (Attorney-General) (1991), 83 D.L.R. (4th) 577 (Que. C.A.), at page 637 by Madam Justice Rousseau-Houle. In the course of discussing the Director’s general authority to seek to resolve concerns arising from mergers she says:

Undertakings are another means of ensuring that a merger is in accordance with the Act without it being necessary to take proceedings before the tribunal. The director may obtain from the parties to a proposed acquisition or merger, the undertaking that they will restructure the transaction or transfer, before or after the sale, part of the shares or assets to another purchaser.

The parties to the undertakings in this case are Ultramar and the Director. Neither the applicant for the Province nor the intervenor Union claim to be a party. The latter do contend, however, that the undertakings are something more than a contract, that they exist as a result of the Tribunal’s order authorizing the Director to oversee the divestiture, on terms, of Texaco’s Atlantic assets by Imperial. It is urged that they imply a public duty owed by the Director, which he refuses to fulfil, thus warranting an order in the nature of mandamus. That duty is to ensure that Ultramar continues to operate the refinery for a period of seven years pending a determination by the Director or someone in his stead that there has been a material adverse change since the undertaking was made in 1990. Unless the undertakings are seen as requiring Ultramar to operate the refinery for seven years, except if a material adverse change occurs as determined by the Director or someone in his stead, it is said the undertakings are virtually meaningless. They must mean more than a ninety-day notice period before unilateral action by Ultramar to close the refinery, so both the Province and the Union here urge.

I agree that the undertakings are more than a contract between private parties. They create expectations, not only for the parties to them when they are made, in light of the Director’s public duties, but for others as well, as these proceedings demonstrate. They are more than a normal contract in another sense for they create unusual moral and ethical obligations for the parties, Ultramar and the Director. Their respective positions, as a commercial entity on one hand and as a public authority on the other, will suffer unless those obligations are met. Each tends to suffer if there is disagreement about whether the undertakings of Ultramar are fulfilled or if the expectations of interested third parties are not met.

Nevertheless, the words of the undertakings themselves, referring to their status as a contract, to be governed for all purposes under the applicable laws of Ontario and Canada, must have significance. In my view they do. If there is disagreement between the Director and Ultramar about whether the obligations have been fulfilled, then the interpretation of the undertakings, and the remedies available, in the event the undertakings are found not to be fulfilled, are matters to be resolved under the laws designated, ultimately by a court on proceedings commenced by either party, Ultramar or the Director.

As noted a key difference in interpretation of the 1990 undertaking, argued before me, is whether it imposes an obligation on Ultramar to continue operation of the refinery unless the Director determines there has been a material adverse change. Both the applicant and the intervenor Union so read the undertaking, and from this they derive a duty on Ultramar enforceable by the Director, to continue to operate the refinery until that determination has been made. Neither Ultramar nor the Director agree with that interpretation or that perception of the Director’s responsibility. In their view Ultramar’s obligation to operate the refinery for seven years is subject to Ultramar’s right to take steps adversely affecting the refinery operations after 90 days’ notice that a material adverse change has occurred. If the Director does not agree that a change has occurred and Ultramar proceeds to shut down the refinery, as it here did in the absence of a determination by the Director, Ultramar and the Director concede that the former may run the risk of legal action by the Director for breach of its undertaking, but it is not precluded from so acting.

So much for the opposing interpretations of the undertakings. I do not propose to resolve this important difference, in part because in my opinion it was not fully argued before me but was dealt with only as an incidental but necessary phase of the argument concerning relief by mandamus, and in part because in my opinion it is unnecessary to resolve that difference in these proceedings.

In my view, where both the parties to the undertakings, i.e. Ultramar and the Director, are agreed on their interpretation, a different interpretation offered by others, though they be vitally interested in the matter, cannot be given credence by the Court except perhaps in the most extraordinary circumstances, and no such circumstances are here suggested. Thus, for purposes of this application I do not conclude that the undertakings of Ultramar create an obligation on the company to continue operations of the refinery until the Director’s decision on material adverse change is made, nor is there a corresponding obligation on the Director to require, somehow, continued operations pending determination of the issue of material adverse change.

Mandamus

The applicant’s case for mandamus is founded upon a public duty of the Director, which it implies from the 1990 undertakings, to require Ultramar to continue to operate the refinery for seven years unless an independent determination is made by the Director or someone acting in his stead that a material adverse change has occurred. That view is strongly supported by the intervenor Union. The undertakings are said to be public, in the nature of a trust administered by the Director for the benefit of the public, in keeping with the Competition Tribunal’s desire to maintain operations of Texaco’s Atlantic assets to ensure competition in the market place.

As I indicated in earlier comments on the nature of the undertakings, there is a difference between the parties to these proceedings about the interpretation and application of the undertakings and the resulting responsibilities and remedies available to them. There is no difference, however, between the parties to the undertakings, Ultramar and the Director, neither of whom share the interpretation advanced by the Province concerning the undertakings and their implications. I have indicated that I am not persuaded that the interpretation and conclusions of the Province and the Union should be preferred to those of the parties to the undertakings.

Moreover, in my view, this is not a circumstance where the Court should imply a public duty on the part of the Director, at least of the sort the Province urges. The case is not analogous to the circumstances in Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232(C.A.), where Mr. Justice Hugessen, for a majority of the Court, found an implied public duty under the Immigration Act [R.S.C., 1985, c. I-2] and Regulations to furnish an application form to a potential immigrant where there is an application for sponsorship. A public duty if implied must surely be fairly said to flow from the scheme of the Act and Regulations under which the public authority, here the Director, acts, as his Lordship said in Nguyen. In these proceedings no basis is suggested in the Act for the public duty implied, and I do not myself see one. Whatever the Director’s responsibilities are under the undertakings, they arise from the undertakings themselves, not directly from the order of the Tribunal, as Mr. Justice Rothstein made clear in his decision for the Tribunal in response to the Union’s application (See Canada (Competition Act, Director of Investigation and Research) v. Imperial Oil Limited [1994] C.C.T.D. No. 23 (QL), reasons for decision regarding jurisdiction over undertakings. His responsibilities under the undertakings do not arise directly under the Act. This is not to say that his responsibilities in regard to the undertakings are contrary to the Act, or somehow beyond his authority under the Act, rather it is to acknowledge that the undertakings were accepted by the Director within his discretion under the Act. In my view, it is not appropriate in these circumstances to say that his responsibilities under the undertakings, assumed within his discretion, create an implied duty imposed by the Act.

In sum, I am not persuaded that in this case there is a public duty of the Director to require Ultramar to continue to operate the refinery pending a determination by the Director, or someone in his place, that a material adverse change has occurred.

Among requirements for an order in the nature of mandamus is that there be a public duty to act. Further, other requirements for mandamus outlined by Mr. Justice Robertson for the Court of Appeal in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742(C.A.) at pages 766-769, are also not established in this case. Thus, there is no ground for finding that even if there were a public duty to act, that duty is here owed to the applicant, even though the Province argues that the applicant represents the general public’s interest in the provincial sense. Nor is it here established that in the exercise of the sort of public duty to act, which, in my view, can be implied from the statute, that duty is more than discretionary. Where the duty is to act but within discretion, mandamus is not available to compel exercise of the duty in a particular way.

Here I agree there is a general public duty by virtue of the statute. That duty is to consider Ultramar’s submission that a material adverse change has occurred, in light of the evidence available to the Director and that provided by interested parties, in light of the undertakings, and in light of the Director’s responsibilities under the Act. That duty does not include authority to insist that Ultramar continue refinery operations though it does include the authority to seek legal recourse, through the courts, if the Director does not agree with Ultramar’s determination of material adverse change or its decision to close down the refinery. Whether legal action is to be taken by the Director is a matter within his discretion, as he judges his public responsibilities under the Act. It is not for this Court to order if or how that discretion should be exercised.

In my opinion, the circumstances of this case do not present a situation where the Court in its discretion should intervene to order, as the applicant requests, that the Director require Ultramar to continue operating the refinery for a minimum of seven years unless there is a determination, by the Director or someone in his stead, that a material adverse change has occurred.

Thus I dismiss the application for an order of mandamus.

The intervenor Union

I turn finally, for purposes of the record, to two issues arising in relation to intervention by the Union in these proceedings. These concern reasons for allowing the intervenor standing, particularly late in the proceedings, and the scope of issues thereafter raised by the intervenor.

As earlier noted, the Union’s application for intervenor status in both applications was heard only six days before the applications were set to be heard. That application was made pursuant to subsection 1611(3) of the Federal Court Rules [C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)] which provides:

Rule 1611 ….

(3) The Court may grant leave to intervene in the hearing of an application for judicial review upon such terms and conditions as it considers just and may give directions on the procedure for and extent of the intervention, the submission and service of documents and other matters relevant to the intervention.

Both the respondent Ultramar and the intervenor the Director opposed the Union’s application. While the applicant did not participate in argument it clearly was not opposed. At the conclusion of argument I orally directed that the application was allowed, as confirmed by written order on certain terms. Those terms included a time for filing the Union’s record consisting of a memorandum of fact and law only, without further affidavits. Further, since the Union’s application to intervene did not adequately deal with arguments it proposed to advance at the hearing, any of the other parties was free to raise an issue, either concerning the Union’s right to raise an issue or concerning prejudice, created for another, by raising a matter through last minute intervention without fair opportunity for other parties to respond. No term was set as to the Union’s right to initiate or participate in any appeal from my disposition of these applications. If that becomes an issue it can be resolved on application to the appropriate division of the Court.

Despite concerns about the failure of the Union in applying for intervenor status to fully set out how its submissions might differ from those advanced by the applicant in its filed record, I concluded that the interests of justice in the circumstances of this case warranted allowing intervenor standing for the Union. It had been involved as an active intervening party in the 1989-90 proceedings of the Competition Tribunal, and in the early stages, until mid-July, in the consultations and correspondence from which these proceedings arise. From that involvement the Union’s views would not be a surprise to the parties and the Court could ensure those parties were not prejudiced by the Union’s late intervention.

At the hearing of the applications for judicial review, counsel for both Ultramar and the Director raised objection to what they perceived as new and different issues raised by the intervenor Union, issues not raised by the applicant. Since that became apparent to them only the weekend before and upon oral presentation at the hearing of the applications, counsel were directed to submit their objections in writing with opportunity for the Union to respond.

Written submissions received subsequent to the hearing include elaboration of the objections by Ultramar, supported by the Director, that, both on the terms of its admission to standing and on principle, the Union as intervenor was not free to raise new issues, not raised by the Province as applicant. The Union submits that it did not raise new issues, rather it sought to address the issues raised by the Province’s applications on the evidence already before the Court from the other parties and intervenor but admittedly from a somewhat different perspective and with somewhat different arguments.

In my opinion, the terms for its standing do not spell out in detail whether new issues and arguments could be raised by the Union as intervenor. Unless that were to be expressly provided, the Union is bound by the general principle that “[t]he intervenor … must as a rule take the record as he finds it … [and] has no status to pursue an appeal” (per Stone J.A. in Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification), [1991] 1 F.C. 416(C.A.), at page 423). The general principle, in my opinion, precludes an intervenor in judicial review proceedings from raising a new issue, that is, one different from the issues raised by the application for judicial review as the parties see those issues, unless the Court expressly authorizes otherwise where the parties to the application do not object.

In this case the written submissions of the intervenor appear to raise new issues in the following respects, and to them the respondent Ultramar objects.

(1)  “Does the Union have standing to apply for prohibition and mandamus?” This matter was not argued orally. Clearly no application by the Union is before the Court for such relief in these proceedings. Thus I do not discuss or determine the issue as it was expressed in the Union’s written submissions.

(2)  The Union notes the issue raised by the Province as the ground for its prohibition application, i.e. the reasonable apprehension of bias, but the Union’s submissions note that it has a different view of the issue in that application. In the Union’s view the issue presented by the facts is whether there was denial of procedural fairness by denying an opportunity to be heard in relation to particular issues of importance.

I have earlier noted this and dealt with it in the light of the evidence before me. I do not see this as an issue new and different from those raised by the Province as applicant since it purports to be based on a different view of the same facts in the record that the applicant relies upon. It would have avoided difficulty for the respondent and the Director if they had more advance notice of the Union’s perspective than was actually provided, but in my view, they were not prejudiced, particularly since they had opportunity to and did make submissions on the matter following the hearing.

(3)  Finally, written submissions of the intervenor Union also speak to an alleged denial to the Union by the Director of the right to be heard—and it is urged, at least in passing, in its brief that the Court should ensure the Director does not render a final decision until the Union has the opportunity to be heard.

I believe it is clear from earlier comments in these reasons that any duty of fairness owed by the Director relates to consideration of timely submissions. Here for reasons arising from strictures in a collective agreement with Ultramar, the Union desisted from making submissions through the crucial period from July to October 1994. Thereafter it sought opportunity to be heard by the Director. The Director may consult whom he wishes and when, but this Court does not see any breach of his duty of fairness in not providing special opportunity for the Union or anyone else to make submissions long out of time. So far as the Union by its written argument invites the Court to intervene to order that opportunity be now provided for it to be heard by the Director the invitation is declined.

For the record, I note that the submissions of the Union as intervenor, were of general assistance to the Court in providing perspective on the background and the undertakings at issue.

Conclusions

The Atlantic Oil Workers Union, Local 1, was granted standing as an intervenor in both proceedings for judicial review for reasons here set out. As intervenor its status did not provide a base for raising issues, different from those raised by the applications of the applicant.

In my opinion, the applicant has standing to seek the forms of relief for which it applied, pursuant to subsection 18.1(1) of the Federal Court Act. The Province will be directly affected by the decision of the Director, a necessary preliminary to any action or inaction he may decide upon in regard to Ultramar’s undertakings, and its interests are genuine and important public interests that warrant opportunity for its concerns to be considered in relation to the relief sought.

Important as the applicant’s interests may be, I dismiss the application for prohibition for, in my opinion, the Director is not subject to a reasonable apprehension of bias standard in the task he was here engaged in, an administrative rather than an adjudicative task. Moreover, to the extent the Director owed a duty of fairness to the applicant that duty was met. Having provided an opportunity for the Province to make submissions, those submissions were to be considered with an open mind, subject only to such “bias” as the Director, charged with statutory responsibilities, was bound to discharge. There is no evidence that he did not have an open mind. Having established a process including provision to interested parties of his initial or preliminary conclusion and background information upon which that was based, he emphasized that his final conclusion would be reached only after consideration of all timely submissions. That procedure was within his discretion to establish.

I also dismiss the application for an order in the nature of mandamus that would order the Director to require Ultramar to resume and maintain operations of the refinery pending determination of a material adverse change by the Director or someone in his stead, or pending expiry of the seven-year term originally committed to those operations by Ultramar. Any public duty to act owed by the Director, in the circumstances of this case, is owed to the public generally in light of the Director’s statutory responsibilities. It is not a duty owed to the applicant. It is a duty to be exercised within the discretion vested in the Director by statute and that discretion is not subject to direction or intervention by this Court in the circumstances of this case.

Important issues were raised about the interpretation and the nature of the undertakings which give rise to these applications. I have not dealt with all submissions of the parties about aspects of the undertakings since it did not seem necessary for determination of the principal issues. I do conclude that as framed the undertakings involve only two parties, Ultramar and the Director. While they have greater significance than a contract between private parties, a significance with ethical implications bordering on trust and integrity for both Ultramar and the Director, by their express terms the undertakings are deemed to be a contract governed and construed for all purposes under the laws of Ontario and Canada. At the least those purposes include that of interpretation and that of enforcement.

Finally, I note my regret that determination of the issues raised and ably presented, took longer than I had anticipated or planned.

A copy of these reasons is to be filed on each of Court files T-2065-94 and T-2603-94, with the separate order now issued in relation to each application.