A-397-79
James Croy, Valerie Croy, Charles Myers, Shar-
ron Myers, Henry Venema, Mary Anne Venema
and the Renfrew County Citizens for Nuclear
Responsibility (Applicants)
v.
Atomic Energy Control Board, Ontario Hydro and
Atomic Energy of Canada Limited (Respondents)
Court of Appeal, Jackett C.J., Le Damn J. and
Kerr D.J.—Ottawa, September 10 and 11, 1979.
Judicial review — Jurisdiction — Motion to quash a s. 28
application which was directed against a refusal by the Atomic
Energy Control Board to initiate proceedings to revoke, sus
pend or amend a licence under s. 27 of the Atomic Energy
Control Regulations — Respondents contend that Board's
response is not a decision within the meaning of that term in s.
28 of the Federal Court Act, and, if it is a decision, it is not a
decision required to be made on a judicial or quasi-judicial
basis — Whether the Court has jurisdiction to hear s. 28
application — Motion allowed — Atomic Energy Control
Regulations, C.R.C. 1978, Vol. III, c. 365, s. 27 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Motion to quash a section 28 application which was directed
against a refusal by the Atomic Energy Control Board to
initiate proceedings to revoke, suspend or amend a licence
under section 27 of the Atomic Energy Control Regulations
pursuant to request of applicants. Section 27(3) would require
the Board to form an opinion that there are reasons for the
proposed action and to inform the licensee in writing of such
reasons. The respondents contend that the response of the
Board to the request of the applicants is not a decision within
the meaning of that term in section 28 of the Federal Court
Act, and alternatively, if it is a decision, it is not a decision
required by law to be made on a judicial or quasi-judicial basis.
The question is whether the Court has jurisdiction to hear the
section 28 application.
Held, the motion is allowed. The hearing contemplated by
section 27(3)(b) may only be held if the Board has first
concluded that there are "reasons" for a "proposed issue of a
notice" under section 27(1). Such a conclusion is, in effect, a
conclusion as to whether there is a prima facie case for a
section 27 (1) notice as opposed to a decision to issue such a
notice. Not only is there no express requirement for a hearing
before reaching such a conclusion, but it is not a matter in
respect of which, such a requirement will be implied. The fact
that the Board did accord what was, in substance, a "hearing"
does not make the conclusion attacked a "decision" that is
required "by law" to be made on a judicial or quasi-judicial
basis. What is being attacked is clearly a conclusion in an
administrative matter that is not required by law to be made on
a judicial or quasi-judicial basis.
APPLICATION for judicial review.
COUNSEL:
A. Roman and N. J. Schultz for applicants.
A. D. Gardner for respondent Ontario Hydro.
L. P. Chambers, Q.C. and L. S. Holland for
Attorney General of Canada.
SOLICITORS:
The Public Interest Advocacy Centre,
Ottawa, for applicants.
Law Department, Ontario Hydro, Toronto,
for respondent Ontario Hydro.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a motion to quash a
section 28 application on the ground inter cilia that
the decision attacked thereby is a decision "of an
administrative nature not required by law to be
made on a judicial or quasi-judicial basis".
The decision attacked, as I understand counsel,
is a decision not to accede to a request by the
applicants to take action, in respect of a licence for
the operation of a nuclear facility, under section 27
of the Atomic Energy Control Regulations,
C.R.C. 1978, Vol. III, c. 365, which reads in part:
27. (1) Subject to subsections (2) and (3), the Board or a
designated officer may, by notice in writing to the holder of any
licence, revoke or suspend the licence or amend the terms and
conditions thereof.
(3) The Board or a designated officer shall not issue a notice
pursuant to subsection (1) unless the holder of the licence
(a) has been informed in writing of the reasons for the
proposed issue of the notice and, in the case of an amend
ment of the terms and conditions thereof, the proposed
amendments; and
(b) has been given reasonable opportunity to be heard by the
Board after receiving the information referred to in para
graph (a).
The steps contemplated by this provision may be
summarized as follows:
(a) a decision by the Board as to "reasons for
the proposed issue of the notice" and as to the
"proposed amendments", if any;
(b) communication to the licensee in writing of
the "reasons" and "proposed amendments", if
any;
(c) reasonable opportunity to the licensee to be
heard by the Board;
(d) a decision by the Board to issue, or not to
issue, a section 27(1) "notice in writing".
What is attacked by the section 28 application
is, in substance, the Board's "decision" not to
"hold a public hearing" (including, presumably,
the "decision" not to take steps that are a condi
tion precedent thereto).
In effect, as I understand it, the hearing contem
plated by section 27(3)(b) may only be held if the
Board has first concluded that there are "reasons"
for a "proposed issue of a notice" under section
27(1). (See section 27(3)(a).) Such a conclusion
is, in effect, a conclusion as to whether there is a
prima facie case for a section 27(1) notice as
opposed to a decision to issue such a notice. Not
only is there no express requirement for a hearing
before reaching such a conclusion but it is not a
matter in respect of which, in my opinion, such a
requirement will be implied. Compare R. v. Ran-
dolph (1966) 56 D.L.R. (2d) 283, Wiseman v.
Borneman [ 1971] A.C. (H.L.) 297 at page 308
and M.N.R. v. Coopers and Lybrand [ 1979]
S.C.R. 495 at pages 502-503. 2
' Some of the references to the Board in this paragraph
include "a designated officer".
2 See also S.E.A.P. v. Atomic Energy Control Board [1977]
2 F.C. 473 and AGIP S.p.A. v. Atomic Energy Control Board
[1979] 1 F.C. 223.
In my view, the fact that, in this case, the Board
did accord what was, in substance, a "hearing"
does not make the conclusion attacked a "deci-
sion" that is required "by law" to be made on a
judicial or quasi-judicial basis. Compare Mar-
tineau v. The Matsqui Institution Inmate Disci
plinary Board [ 1978] 1 S.C.R. 118.
Having come to that conclusion, I do not have to
consider whether what is attacked by the section
28 application is a "decision" within section 28 of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10. It is clearly a conclusion in an administrative
matter that, in my opinion, is not required by law
to be made on a judicial or quasi-judicial basis.'
For the above reasons, I am of opinion that the
section 28 application should be quashed for lack
of jurisdiction.
* * *
' The only view suggested in argument for the conclusion in
question being a "decision" within the meaning of section 28 of
the Federal Court Act of a character that might affect the
question whether it has to be reached on a judicial or quasi-
judicial basis is as I understand it
(a) that a regulatory tribunal such as the Atomic Energy
Control Board has a "common law" duty in certain circum
stances to exercise a power such as that contained in section
27 of the Regulations,
(b) that such "common law" duty arises on the application of
persons who have a concern or interest in the exercise of the
power, and
(c) that upon an application by such persons, the regulatory
tribunal has a legal power (jurisdiction) to make a binding
decision as to whether the circumstances have arisen that
give rise to the Board's duty to act.
On that view, so the suggestion goes as I understand it, the
Board must make the decision as to whether the duty has arisen
on a quasi-judicial basis because the applicants must be heard
with regard thereto. The Board is, therefore, so it is suggested,
subject to supervision by the Courts in deciding whether or not
to exercise its section 27 powers. No authority was suggested
for the wide general duty set out in paragraphs (a) and (b)
supra; and I can find nothing in the Act and Regulations with
which we are concerned from which to imply any such duty.
This is not to say that the proposition might not, in my view, be
arguable if section 27 spelled out the circumstances in which
the powers contained therein are to be exercised and conferred
on the Board the power to decide whether such circumstances
existed.
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: This is a motion to quash a section
28 application on the ground that the Court lacks
jurisdiction. The section 28 application is directed
against a refusal by the Atomic Energy Control
Board to initiate proceedings for the revocation,
suspension, or amendment of a licence under sec
tion 27 of the Atomic Energy Control Regula
tions, made pursuant to the Atomic Energy Con
trol Act, R.S.C. 1970, c. A-19. Section 27 reads as
follows:
27. (1) Subject to subsections (2) and (3), the Board or a
designated officer may, by notice in writing to the holder of any
licence, revoke or suspend the licence or amend the terms and
conditions thereof.
(2) A notice under subsection (1) is not required if the
revocation, suspension or amendment of the terms and condi
tions is at the request of the holder of the licence.
(3) The Board or a designated officer shall not issue a notice
pursuant to subsection (1) unless the holder of the licence
(a) has been informed in writing of the reasons for the
proposed issue of the notice and, in the case of an amend
ment of the terms and conditions thereof, the proposed
amendments; and
(b) has been given reasonable opportunity to be heard by the
Board after receiving the information referred to in para
graph (a).
(4) Notwithstanding subsection (3), the Board or a desig
nated officer may, by notice in writing stating the reasons
therefor, suspend a licence without giving the holder thereof an
opportunity to be heard, where it is considered necessary to do
so in the interests of health, safety or security.
(5) Where a licence has been suspended under subsection
(4), the holder of the licence may within 10 days of the date of
receipt of the notice of suspension submit a request in writing
to the Board to hold an inquiry into the reasons for such
suspension.
(6) On receipt of a written request referred to in subsection
(5), the Board shall
(a) hold an inquiry within 30 days of the receipt of such
request; and
(b) provide the holder of the licence at least 7 days notice in
writing of the time and place of the inquiry.
(7) At the conclusion of an inquiry under subsection (5), the
Board may
(a) revoke the licence;
(b) revoke the suspension thereof; or
(c) extend the suspension thereof until the conditions pre
scribed by the Board have been complied with.
(8) Where a licence is suspended under subsection (4) and a
request has been made to hold an inquiry under subsection (5),
the licensee may at any time prior to the date for the holding of
the inquiry waive the requirement for the holding of the
inquiry.
The applicants in the section 28 application are
persons who claim to be threatened by the opera
tion of a nuclear power demonstration reactor
(NPD reactor) at Rolphton in the County of Ren-
frew. The reactor is operated by the respondents.
The applicants contend that it is being operated in
breach of the licence issued by the Board. An
"application" was made on their behalf to the
Board calling on the Board to "review the issuing"
of the licence and for that purpose to hold a public
hearing. The import of thé application was that
the Board should take action pursuant to
section 27 of the Regulations. This, as appears
from subsection (3) of that section, would require
the Board to form an opinion that there are rea
sons for the revocation, suspension or amendment
of the licence and to inform the licensee in writing
of the reasons for the proposed action. The Board
replied to the applicants by letter dated May 31,
1979 in which it expressed the following
conclusion:
The Application has been considered by the Board and its
staff. In view of the concern of the applicants that the NPD
reactor constitutes a danger to their health and safety, the
Application has been reviewed to establish whether it contained
any new factual information which would indicate that the
Board should take licensing action. Our conclusion is that the
Application does not contain any factual information which
was not considered by the Board in the course of licensing and
our ongoing review of NPD. It is, therefore, the opinion of the
Board that there is no compelling reason to restrict the opera
tion of the NPD reactor or to hold a public hearing into the
safety of the NPD reactor.
Enclosed with the Board's letter was a report
prepared by the Board's staff and entitled "The
History of ECCS at NPD." (The letters "ECCS"
stand for Emergency Core Cooling System.) That
report dated May 30, 1979, purports to review the
steps taken and the conclusions reached in deter
mining whether and under what conditions the
reactor should be permitted to operate at full
power and expresses the following conclusion:
In summary, the AECB has reviewed the ECCS at NPD.
The modifications made to the reactor are, in the judgment of
the Board, sufficient to limit the number of fuel failures
following a postulated LOCA. Inasmuch as it meets the safety
standard, by which the reactor at Rolphton was judged when it
was licensed for operation, NPD is operating within the terms
of its licence. The overall risk to the public was, and is still,
considered to be acceptably low.
The applicants attack this response to their
"application" on grounds that are set out in the
notice of their section 28 application as follows:
TAKE NOTICE THAT the Applicants hereby apply for an order
pursuant to section 28 of the Federal Court Act to set aside the
decision of the Respondent Atomic Energy Control Board
dated May 31st, 1979 that there is no compelling reason for the
Respondent Board to restrict the operation of the NPD Reactor
or to hold a public hearing into the safety of the NPD Reactor
or to take licensing action on the grounds that:
a) The Board erred in failing to find that the NPD Reactor is
operating in violation of its operating license, the said error
constituting both an error of law and a failure to exercise its
jurisdiction;
b) The Board erred in deciding that it was not required to
invoke its jurisdiction under section 27 of the Atomic Energy
Control Regulations, SOR/74-334, to review the issuing of
the NPD operating license, the said error also being an error
of law;
c) The Board erred in deciding that a "compelling reason" is
required to invoke the Board's jurisdiction to hold a public
hearing, the said error constituting both an error of law and a
failure to exercise jurisdiction;
d) The Board erred in failing to decide a matter specifically
put before it, namely, a request to make public certain terms
and conditions attached to the NPD operating license, the
said error constituting both an error of law and a failure to
exercise jurisdiction;
e) The Board erred in failing to disclose to the Applicants
certain documents referred to in the Board's decision, the
said error constituting a denial of natural justice;
f) The Board erred in failing to advise the Applicants if the
Board had received any submissions from the Respondents
Ontario Hydro and Atomic Energy of Canada Limited and
the substance of any such submissions, the said error con
stituting a denial of natural justice;
g) The Board erred in failing to permit the Applicants to
appear before the Board prior to the making of the Board's
decision, the said error constituting a denial of natural
justice;
h) The Board erred in construing section 26 of the Atomic
Energy Control Regulations as presenting a bar to the disclo
sure of information received from the Respondents Ontario
Hydro and Atomic Energy of Canada Limited with respect
to the safety of the NPD Reactor without the consent of the
Respondents Ontario Hydro and Atomic Energy of Canada
Limited, the said error constituting an error of law.
It is the contention of the respondents in support
of their motion to quash that the response of the
Board to the request of the applicants is not a
decision within the meaning of that term in section
28 of the Federal Court Act, and alternatively, if it
is a decision, it is not a decision required by law to
be made on a judicial or quasi-judicial basis. They
also contended at the hearing that the applicants
lacked status to bring a section 28 application,
assuming the Board's response was a decision sub
ject to review under that section, but this conten
tion was not pressed in argument, and is clearly in
my opinion without any merit.
In my view the section 28 application should be
dismissed for the reason that the Board's response
to the applicants' "application" was not a decision
within the meaning of that section. Section 27 of
the Regulations does not expressly or impliedly
confer upon the applicants, however serious their
interest may be, a right to obtain from the Board a
decision as to whether it will initiate proceedings
under that section. Whatever other recourse the
applicants may have for injury caused or threat
ened to them by the operation of a licensed reactor
in alleged breach of the terms and conditions of
the licence, they do not have the right to apply for
the revocation, suspension or amendment of the
licence pursuant to section 27, in the sense that the
Board has a statutory duty, upon receipt of such
an application, to come to a decision as to whether
section 27 action should be taken. Such persons
have, of course, a perfect right like other citizens
to bring information to the attention of the Board
which they think should be considered by the
Board in determining its conduct from time to
time. But any response which the Board chooses to
make to such a submission as a matter of policy is
not a decision which it is required to make in the
exercise of its statutory authority, and as such, is
not a decision within the meaning of section 28.
The issue may be tested by considering whether a
licensee, upon receiving written notice of the rea
sons for a proposed revocation pursuant to section
27(3) of the Regulations, could at that stage
attack the Board's opinion that there are such
reasons, or its initiation of revocation proceedings,
as a decision under section 28. A right to a deci
sion arises where a statute provides that a person
may apply to an administrative authority for a
decision. The fact that an authority chooses as a
matter of policy to express an opinion in response
to a request or submission by an interested person
does not convert that expression of opinion into a
decision within the meaning of section 28 when it
has not been given that character by the governing
statute.
In view of this conclusion I do not find it
necessary to express an opinion as to whether,
assuming that the response of the Board to the
"application" in the present case were a decision
within the meaning of section 28, it would be a
decision that would be required by law to be made
on a judicial or quasi-judicial basis.
I would allow the application and quash the
section 28 application.
* * *
KERR D.J. concurred.
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.