A-677-78
Mario Carota (Appellant) (Plaintiff)
v.
Donald Jamieson, Marcel Lessard and Attorney
General of Canada (Respondents) (Defendants)
Court of Appeal, Urie and Le Dain JJ. and Kerr
D.J.—Halifax, June 22; Ottawa, September 25,
1979.
Crown — Prerogative writs — Agreement between Canadian
and P.E.I. Governments for comprehensive rural development
plan — No provision for public participation in amendment —
Appeal from dismissal of action concerning alleged breach by
federal Minister of Regional Economic Expansion of statutory
duty to make provision for public participation — Fund for
Rural Economic Development Act, S.C. 1966-67, c. 41, ss.
4(1), 5(a),(b) — Government Organization Act, 1969, S.C.
1968-69, c. 28, s. 102(2),(4) — Department of Regional Eco
nomic Expansion Act, R.S.C. 1970, c. R-4, ss. 5, 6, 7, 8 —
Appropriation Act No. 5, 1973, S.C. 1973-74, c. 47, Vote 11a
— Interpretation Act, R.S.C. 1970, c. I-23, s. 35.
This is an appeal from a judgment of the Trial Division
dismissing an action for a declaration and other relief with
respect to an alleged breach by the federal Minister of Regional
Economic Expansion of a statutory duty to make provision for
public participation in the formulation and carrying out of the
second phase of a comprehensive rural development program
for Prince Edward Island. The program or "Plan" was estab
lished by an agreement between Canada and Prince Edward
Island. Amendment No. 3 to the Agreement, made in 1975, did
not contain a specific reference to a program for public partici
pation and involvement, nor a specific cost allocation for such
purpose, unlike the original Plan and summary of costs
attached to the "First Memorandum of Implementation".
Appellant alleged that the Minister of Regional Economic
Expansion caused Amendment No. 3 to be formulated and
entered into without making provision for the public participa
tion in the formulation and carrying out of the Plan as required
by section 7(2) of the Department of Regional Economic
Expansion Act. The defence admitted that the Minister did not
comply with that section, contending that it had no application
to the amending agreement. A question of pure law was at issue
at trial—whether or not the Minister had a statutory duty to
make provision for public participation in the amending
agreement.
Held, the appeal is dismissed. The Minister was not under a
statutory duty to make provision for public participation in the
amending agreement. The terms of section 5(a) of the Fund for
Rural Economic Development Act, which included provision
for participation of residents in its definition of "comprehensive
rural development program", even if they created a statutory
duty, no longer applied to the amending agreement when
entered into in 1975. It authorized the kind of agreement that
could be entered into, but was not a restraint on the agree
ment's amendment years after it ceased to exist. Appellant
argued that statutory authority indicated that the duty to make
provision for public participation had been transferred to the
Minister of Regional Economic Expansion, and although
powers, duties and functions were transferred, the question
remains as to what they were. Despite the fact that the
agreement would continue to have effect by virtue of the
Interpretation Act, the words "continues in force as though that
agreement had been entered into pursuant to this Act" in
section 102(4) of the Government Organization Act, 1969 do
not intend more. It cannot be inferred from these words in a
provision that makes reference to three statutes an intention
that the provisions of Part IV of the 1969 Act, which became
the Department of Regional Economic Expansion Act, should
apply mutatis mutandis to the Agreement. If such an impor
tant consequence were intended, it would have been expressly
provided. The Department of Regional Economic Expansion
Act does not have application to the 1975 agreement; that
agreement derived the whole of its authority from the Appro
priation Act No. 5, 1973.
APPEAL.
COUNSEL:
M. Carota for appellant (plaintiff) on his own
behalf.
J. A. Ghiz for respondents (defendants)
Donald Jamieson and Marcel Lessard.
R. P. Hynes for respondent (defendant)
Attorney General of Canada.
SOLICITORS:
Scales, Ghiz, Jenkins & McQuaid, Charlotte-
town, for respondents (defendants) Donald
Jamieson and Marcel Lessard.
Deputy Attorney General of Canada for
respondent (defendant) Attorney General of
Canada.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from a judgment
of the Trial Division [[1979] 1 F.C. 735] dismiss
ing an action for a declaration and other relief
with respect to an alleged breach by the federal
Minister of Regional Economic Expansion of a
statutory duty to make provision for public partici
pation in the formulation and carrying out of the
second phase of a comprehensive rural develop
ment program in Prince Edward Island.
The program or "Plan", as it is generally
referred to, was established by an agreement
(hereinafter referred to as "the Agreement") be
tween Canada and Prince Edward Island, which
was authorized, in so far as Canada was con
cerned, by Order in Council P.C. 1969-454 made
on March 6, 1969, and was entered into on March
7, 1969, pursuant to section 4(1) of the Fund for
Rural Economic Development Act, S.C. 1966-67,
c. 41, which provided as follows:
4. (1) The Minister may, on the recommendation of the
Advisory Board and with the approval of the Governor in
Council, enter into an agreement with any province providing
for
(a) the undertaking jointly with the province or any agency
thereof of a comprehensive rural development program in a
special rural development area; or
(b) the payment to the province of contributions in respect of
the cost of a comprehensive rural development program in a
special rural development area undertaken by the govern
ment of the province or any agency thereof.
Section 5 of the Act defined a "comprehensive
rural development program" and a "special rural
development area" as follows:
5. For the purposes of this Act,
(a) a comprehensive rural development program is a pro
gram, consisting of several development projects, that is
designed to promote the social and economic development of
a special rural development area and to increase income and
employment opportunities and raise living standards in the
area, and that makes provision for participation by residents
of the area in the carrying out of the program; and
(b) a special rural development area is a predominantly
rural area within a province that is designated in an agree
ment between the province and the Minister under section 4
to be an area of widespread low incomes resulting from
economic and social adjustment problems and that, in the
opinion of the Board based on information submitted by the
province with respect to physical, economic and social condi
tions in the area, has a reasonable potential for economic and
social development.
Schedule "A" of the Agreement in its original
form consisted of a "First Memorandum of
Implementation" and the detailed Plan. In Article
1 of the Memorandum of Implementation the
Province of Prince Edward Island was designated
a special rural development area pursuant to sec
tion 5(b) of the Fund for Rural Economic De
velopment Act as follows:
1. The territory of the Province is hereby designated a Special
Rural Development Area under Section 5(b) of the Act and the
development strategy outlined in Schedule "A" to the Agree
ment shall be the Comprehensive Rural Development Program
for the Area under Section 4 of the Act.
The Agreement was to run for some fifteen
years until March 31, 1984 and to be implemented
in three phases of five years each. Article 7 of the
Agreement contemplates amendments from time
to time as follows:
7. In the event that Canada and the Province mutually agree
that further studies or information with respect to the Area or
that an evaluation of the effects of the Plan demonstrate that
the objectives and basic strategy described in Schedule "A"
require alteration or amendment, this Agreement may from
time to time be reviewed by the parties hereto and, if believed
necessary, with the approval of the Governor-in-Council and
the Lieutenant-Governor-in-Council, may be amended; but in
any event the Agreement shall be reviewed before March 31,
1972.
In its original form the Plan made provision for
public participation in its development and imple
mentation. A "Summary of Costs and Services for
the First Phase of the Prince Edward Island Com
prehensive Development Plan" included an
amount of $10,082,000 for program 4.3, entitled
"Public Participation & Involvement", $7,560,000
of which was to be provided by the Federal Gov
ernment and $2,522,000 by the Province.
The Fund for Rural Economic Development Act
was repealed by the Government Organization
Act, 1969, S.C. 1968-69, c. 28, which came into
force on April 1, 1969. Part IV thereof created a
Department of Regional Economic Expansion
under a Minister of Regional Economic Expansion
with duties, powers and functions in relation to
plans for "economic expansion and social adjust
ment" in "special areas", and subsections (2) and
(4) of section 102 made particular provision for
the continuing effect and administration of the
Agreement as follows:
1o2....
(2) Whenever under any order, rule or regulation, or any
contract, lease, licence or other document, any power, duty or
function is vested in or exercisable by the Minister of Forestry
and Rural Development, the Deputy Minister of Forestry and
Rural Development or any other officer of the Department of
Forestry and Rural Development in relation to the Fund for
Rural Economic Development Act or in relation to any matter
not provided for under subsection (1) to which the powers,
duties or functions of the Minister of Regional Economic
Expansion extend under this Act, the power, duty or function is
vested in and shall or may be exercised by the Minister of
Regional Economic Expansion, the Deputy Minister of Region
al Economic Expansion or the appropriate officer of the
Department of Regional Economic Expansion, as the case may
be, unless the Governor in Council by order designates another
Minister, Deputy Minister or officer of a department of the
public service of Canada to exercise such power, duty or
function.
(4) Subject to subsections (2) and (3), every agreement
entered into before the coming into force of this Act pursuant
to the Atlantic Development Board Act, the Fund for Rural
Economic Development Act or Part II of the Department of
Industry Act continues in force as though that agreement had
been entered into pursuant to this Act.
Part IV of the Act of 1969 became the Depart
ment of Regional Economic Expansion Act,
R.S.C. 1970, c. R-4, which came into force on July
15, 1971. Sections 23, 24, 25 and 26 of the former
Act, which were referred to in argument, became
sections 5, 6, 7 and 8 respectively of the latter Act.
It is convenient to quote them as they appear in
chapter R-4 of the Revised Statutes, 1970, since
they were the provisions in force when the amend
ing agreement of which the appellant complains
was entered into. They read as follows:
5. The duties, powers and functions of the Minister extend to
and include
(a) all matters over which the Parliament of Canada has
jurisdiction, not by law assigned to any other department,
branch or agency of the Government of Canada, relating to
economic expansion and social adjustment in areas requiring
special measures to improve opportunities for productive
employment and access to those opportunities; and
(b) such other matters over which the Parliament of Canada
has jurisdiction relating to economic expansion and social
adjustment as are by law assigned to the Minister.
6. The Governor in Council, after consultation with the
government of any province, may by order designate as a
special area, for the period set out in the order, any area in that
province that is determined to require, by reason of the excep
tional inadequacy of opportunities for productive employment
of the people of that area or of the region of which that area is
a part, special measures to facilitate economic expansion and
social adjustment.
7. (1) In exercising his powers and carrying out his duties
and functions under section 5, the Minister shall
(a) in cooperation with other departments, branches and
agencies of the Government of Canada, formulate plans for
the economic expansion and social adjustment of special
areas; and
(b) with the approval of the Governor in Council, provide for
coordination in the implementation of those plans by depart-
ments, branches and agencies of the Government of Canada
and carry out such parts of those plans as cannot suitably be
undertaken by such other departments, branches and
agencies.
(2) In formulating and carrying out plans under subsection
(1), the Minister shall make provision for appropriate coopera
tion with the provinces in which special areas are located and
for the participation of persons, voluntary groups, agencies and
bodies in those special areas.
8. (1) The Minister may, in cooperation with any province,
formulate a plan of economic expansion and social adjustment
in a special area and, with the approval of the Governor in
Council and subject to the regulations, enter into an agreement
with that province for the joint carrying out of such plan.
(2) Notwithstanding subsection (1), detailed negotiation of
any draft agreement under this section shall not be undertaken
by or on behalf of the Minister unless the plan to which the
draft agreement relates has first been approved by the Gover
nor in Council.
(3) An agreement entered into pursuant to this section may
be entered into with one or more provinces in respect of one or
more special areas and
(a) shall provide for the use, where appropriate, of the
services and facilities of other departments, branches and
agencies of the Government of Canada;
(b) may provide for the payment to a province of contribu
tions in respect of the costs of the programs and projects to
which the agreement relates that are to be undertaken by the
government of the province or any agency thereof or any of
those programs or projects; and
(c) may provide that Canada and a province may procure
the incorporation of one or more agencies or other bodies, to
be jointly controlled by Canada and the province, for the
purpose of undertaking or implementing programs or
projects to which the agreement relates or any part of such
programs or projects.
After the repeal of the Fund for Rural Econom
ic Development Act there were two principal
amendments to the Agreement prior to the amend
ment which is the one in issue in the present case.
Amendment No. 1 was made in 1971. Order in
Council P.C. 1971-1105 of June 8, 1971, which
authorized the Minister of Regional Economic
Expansion to enter into the amending agreement,
recited that it was made "pursuant to sections 23
and 102 of the Government Organization Act,
1969 and Article 7 of the Prince Edward Island
Comprehensive Rural Development Agreement".
The amending agreement made changes in the
financial arrangements for certain programs. The
summary of costs contained an amount of $5,082,-
000 for program 4.3, entitled "Public Participation
& Involvement", made up of $3,810,000 from the
Federal Government and $1,272,000 from the
Province. Amendment No. 2 to the Agreement
was made in 1973. Order in Council P.C. 1973-
16/1179 of May 22, 1973, which authorized the
Minister of Regional Economic Expansion to enter
into it, recited that it was made "pursuant to
section 5 of the Department of Regional Economic
Expansion Act, section 102 of the Government
Organization Act, 1969 and Article 7 of the Prince
Edward Island Comprehensive Development
Agreement". Amendment No. 2 substituted a new
summary of costs for the first phase of the Plan.
For Item 4.3, entitled "Public Participation &
Involvement", it showed a total amount of $3,957,-
000, made up of $2,968,000 from the Federal
Government and $989,000 from the Province.
Amendment No. 3, which is the one in issue in the
present case, was made in 1975. Order in Council
P.C. 1975-3/2195 of September 18, 1975, which
authorized the Minister of Regional Economic
Expansion to enter into it, recited that it was made
"pursuant to Vote 11a, Appropriation Act No. 5,
1973". Regional Economic Expansion Vote 1 la,
which was for the amount of $1.00, was in the
following terms:
11a To authorize the Minister of Regional Economic Expan
sion to enter into general development agreements with the
provinces, subject to the approval of the Governor in Council,
to provide mèasures for economic expansion and social
adjustment in areas in Canada requiring such measures to
improve opportunities for productive employment in those
areas and access to such opportunities, and, in accordance
with such general development agreements and such direc
tions as the Governor in Council may prescribe, to enter into
subsidiary agreements to effect the purposes of the general
development agreements, and to provide contributions as set
out in the general development agreements and subsidiary
agreements, and to authorize the transfer of $14,999,999
from Regional Economic Expansion Vote 10, Appropriation
Act No. 4, 1973, for the purposes of this Vote ....
Amendment No. 3, entered into on October 23,
1975, provided a "Second Memorandum of
Implementation" and a new "Development Strate
gy" for the second phase of the Plan to run from
April 1, 1975. Neither contains a specific refer-
ence to a program for public participation and
involvement, nor a specific cost allocation for such
purpose, as did the original Plan and summary of
costs attached to the "First Memorandum of
Implementation."
The appellant alleges in his statement of claim
that the Minister of Regional Economic Expansion
caused Amendment No. 3—the agreement for the
second phase of the Comprehensive Development
Plan—to be formulated and entered into without
making provision for the participation of the
appellant or any other persons, volunteer group,
agency or body in the formulation and carrying
out of the Plan as required by section 7(2) of the
Department of Regional Economic Expansion
Act. He sues the respondents as the former and
present incumbent of the office of Minister of
Regional Economic Expansion, the Attorney Gen
eral of Canada being later joined as a defendant,
and he prays for a declaration that the amending
agreement of October 23, 1975, is void because of
the alleged failure to comply with section 7, for an
injunction to restrain the implementation of the
Agreement, for a mandamus against the defend
ant Lessard to compel provision for public partici
pation in the second phase of the Plan, and puni
tive damages. The defence filed on behalf of the
respondents by the Deputy Attorney General
admits that the Minister did not comply with
section 7 of the Department of Regional Economic
Expansion Act but contends that the section has
no application to the amending agreement. The
learned Trial Judge took this as an admission that
the amending agreement did not make provision
for public participation in the formulation and
implementation of the second phase of the Plan,
but he also found this as a fact from the terms of
the Agreement itself. He said [at page 738], "The
absence in the impugned agreement of any special
provisions for the participation of groups and
individuals was sufficiently established by the
mere production of the instrument itself, and in
any event, the defendants had promptly admitted
it as a fact." The issue was therefore treated as a
pure question of law—whether the Minister had a
statutory duty to make such provision in the
amending agreement. At the hearing of the appeal
counsel for the respondents stressed that all that
had been admitted is that the Minister had not
complied with section 7(2) of the Department of
Regional Economic Expansion Act. In view of the
conclusion to which I have come on the question of
law it is unnecessary to consider whether the
appellant has sufficiently established that there
was in fact a failure in the amending agreement to
make provision for public participation. I agree
with the conclusion of the learned Trial Judge that
the Minister was not under a statutory duty to
make such provision. This is sufficient to dispose
of the appellant's action, and it is unnecessary to
deal with the other issues raised by it, which
include the questions whether, if such a duty did
exist, the breach of it would give rise to a private
right of action, whether the appellant has suffi
cient standing for such an action, and whether the
particular relief sought would lie in the circum
stances.
I may briefly state my reasons for agreement
with the Trial Judge. The foundation of the appel
lant's case is his contention that the Minister was
bound by the terms of section 7(2) of the Depart
ment of Regional Economic Expansion Act when
he entered into the amending agreement providing
for the second phase of the Plan. In the argument
on the appeal he referred as well to the terms of
section 5(a) of the Fund for Rural Economic
Development Act, which defined a "comprehensive
rural development program" as including, among
other things, "provision for participation by resi
dents of the area in the carrying out of the pro
gram", but even if those terms could be said to
create a statutory duty, which I strongly doubt,
they no longer applied to the Agreement when the
amending agreement was entered into in 1975. If
section 5(a) defined the kind of agreement that the
Minister of Forestry and Rural Development was
authorized to enter into, it was no longer a
restraint upon the amendment of that agreement
some five or six years after it had ceased to exist.
The appellant laid particular stress upon the terms
of section 23 of the Government Organization Act,
1969, which became section 5 of the Department
of Regional Economic Expansion Act, as well as
section 102(2) of the former Act, as indicating, in
his contention, the transfer from the Minister of
Forestry and Rural Development to the Minister
of Regional Economic Expansion of the duty to
make provision for public participation. Certainly,
there was a transfer of such duties, powers and
functions as continued to exist in respect of the
Agreement, but the question, of course, is what
they were. It is the terms of section 102(4) of the
Government Organization Act, 1969, a provision
that was not repealed in the consolidation effected
by the Revised Statutes of Canada, 1970, that
have appeared to me the most significant in this
regard. I have considered whether, in view of the
fact that the Agreement would continue to have
effect by virtue of section 35 of the Interpretation
Act, R.S.C. 1970, c. I-23, more was not intended
by the words "continues in force as though that
agreement had been entered into pursuant to this
Act." I am of the view, however, that one cannot
infer from these words in a provision that makes
reference to three statutes an intention that the
provisions of Part IV of the Act of 1969, which
became the Department of Regional Economic
Expansion Act, should apply mutatis mutandis to
the Agreement. If such an important consequence
were intended it would surely have been expressly
provided. I am, therefore, in agreement with what
I understand to have been the conclusion of the
learned Trial Judge that the Department of
Regional Economic Expansion Act did not have
application to the amending agreement of 1975
and that the latter derived the whole of its statu
tory authority from the Appropriation Act No. 5,
1973. But even assuming that the terms of the
Department of Regional Economic Expansion Act
must be held to apply to the amending agreement
by virtue of the terms of section 102(4) of the Act
of 1969, and that the special rural development
area designated by Article 1 of the "First Memo
randum of Implementation" must be held to be a
"special area" within the meaning of section 6 of
the Department of Regional Economic Expansion
Act, I am further in agreement with the conclusion
that the amending agreement would not fall within
the terms of section 7, which contemplates plans
formulated by the Minister alone in cooperation
with other departments, branches and agencies of
the Government of Canada, and not an agreement
between Canada and a province which is expressly
provided for by section 8, in which there is no
requirement of provision for public participation
corresponding to that in section 7(2).
I am accordingly of the opinion that there is no
error in the judgment appealed from and that the
appeal should be dismissed.
* * *
URIE J.: I agree.
* * *
KERR D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.