T-2927-91
Vancouver Island Peace Society, Anne A. Pask,
and Gregory P. Hartnell (Applicants)
v.
Her Majesty the Queen in the Right of Canada,
Prime Minister of Canada, Minister of National
Defence, Secretary of State for External Affairs,
Minister of Transport, and Minister of
Environment (Respondents)
INDEXED AS: VANCOUVER ISLAND PEACE SOCIETY V. CANADA
(TB.)
Trial Division, Strayer J.—Vancouver, April 6 and
14, 1992.
Environment — Principal application to quash Orders in
Council approving visits of nuclear-powered/armed vessels at
Canadian ports for failure to comply with Environmental
Assessment and Review Process Guidelines Order (EARPGO)
and for mandamus requiring Minister to conduct initial assess
ment to determine if "potentially adverse environmental
effects" and to refer proposal to Minister of Environment for
public review — Respondents applying herein to have princi
pal application proceed as action as difficult issues of fact as
to whether significant potentially adverse environmental effects
— Role of Court in reviewing decisions of initiating depart
ment under EARPGO, ss. 12, 13 — Issues to be addressed.
This was an application for an order that the applicants'
motion for mandamus and certiorari (the principal application)
proceed as an action. The applicants are seeking to have two
Orders in Council, approving visits of nuclear-powered and
nuclear-armed naval vessels to Canadian ports quashed
because they were made without compliance with a "prerequi-
site", i.e. the requirements of the Environmental Assessment
and Review Process Guidelines Order (EARPGO). They are
seeking mandamus to require the responsible Minister to con
duct the initial assessment to determine if there are any "poten-
tially adverse environmental effects", and to refer the proposal
to the Minister of the Environment for public review by a
panel. The respondents say that the principal application
should proceed as an action because many difficult issues of
fact will arise in determining whether the visits by American
and United Kingdom nuclear naval vessels would involve any
"significant" "potentially adverse environmental effects". The
applicants argued that converting the application into an action
would seriously delay the disposition of an urgent matter.
Held, the application should be dismissed.
Both sides had misconceived the Court's role herein in
assuming that it would sit on appeal from the initiating depart
ment's factual determinations as to the potential hazards cre
ated by the visits of these naval vessels. In reviewing decisions
of the "initiating department" under EARPGO, section 12, the
Court should not interfere unless it is satisfied that there is no
reasonable basis for the department's decision. In relation to
decisions under section 13 as to whether there is such public
concern as to make a public review "desirable", the Court may
inquire whether the Minister acted in good faith and took into
account relevant considerations. Unless the Court is satisfied
that the decision was based on completely irrelevant factors, it
cannot quash such a decision.
Within this restricted role, there is no place for presentation
of factual or expert opinion on the nature or degree of potential
environmental effects. The Court and the parties must address
(1) whether the activity comes within the EARPGO and an ini
tial assessment is as a matter of law required by section 10; (2)
whether the initiating department has carried out such an
assessment under section 12; (3) if so, whether a decision was
purportedly made under section 12, but wholly without regard
to relevant factors; and (4) if a determination has been made
under section 13, whether that has been made wholly without
regard to relevant factors. The issue before the Court will not
be whether visits by nuclear-powered or nuclear-armed naval
vessels created significant potentially adverse environmental
effects, but whether the initiating department made a decision
on this question; if so, what material it had before it in reach
ing such a decision; and whether it decided so within the limits
of judgment allowed to it under the Act. It is not the Court's
role to become an academy of science to arbitrate conflicting
scientific predictions or to act as a kind of legislative upper
chamber to weigh expressions of public concern and determine
which ones should be respected.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 1.
Environmental Assessment and Review Process Guide
lines Order, SOR184-467, ss. 10, 12, 13, 20.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
CASES JUDICIALLY CONSIDERED
APPLIED:
Cdn. Wildlife Federation Inc. v. Canada (Minister of the
Environment) (1989), 4 C.E.L.R. (N.S.) 201; 31 F.T.R. 1
(F.C.T.D.); affd [1991] 1 F.C. 641; (1990), 6 C.E.L.R.
(N.S.) 89; 41 F.T.R. 318 (note); 121 N.R. 385 (C.A.);
Cantwell v. Canada (Minister of the Environment) (1991),
6 C.E.L.R. (N.S.) 16 (F.C.T.D.).
REFERRED TO:
Friends of the Oldman River Society v. Canada (Minister
of Transport), [1992] 1 S.C.R. 3; Apple Computer, Inc. v.
Minitronics of Canada Ltd., [1988] 2 F.C. 265; (1988), 17
C.I.P.R. 308; 19 C.P.R. (3d) 15; 17 F.T.R. 37 (T.D.).
APPLICATION to have application to quash
Orders in Council and for mandamus requiring com
pliance with Environmental Assessment and Review
Process Guidelines Order (EARPGO) proceed as
action. Application dismissed.
COUNSEL:
Robert Moore-Stewart for applicants.
H. J. Wruck for respondents.
SOLICITORS:
Robert Moore-Stewart, Victoria, for applicants.
Deputy Attorney General of Canada for respon
dents.
The following are the reasons for order rendered in
English by
STRAYER J.: This is an application by the respon
dents for an order that the applicants' motion for
mandamus and certiorari (the "principal applica
tion") be proceeded with as an action.
The principal application is directed against two
decisions of the Governor in Council, Nos. 2083 and
2084 of 1991 made on October 30, 1991. It is said
that these Orders in Council approved, inter alla, vis
its of nuclear-powered and nuclear-armed naval ves
sels to Canadian ports. In effect, the applicants say
that these Orders in Council were adopted without
the respondents having met the requirements of the
Environmental Assessment and Review Process
Guidelines Order, SOR/84-467 in that there was no
initial assessment of potentially adverse environmen
tal effects of the proposed visits as required by sub
section 10(1) of the Order, nor was there a reference
of the proposal to the Minister of the Environment
for public review by a panel pursuant to section 12 of
that Order. Nor, it is said, was there any determina
tion by the "initiating department", the Department
of National Defence, pursuant to section 13 of the
Order as to whether to refer the proposal to the Min
ister of the Environment for public review by a panel
due to "public concern about the proposal". The
applicants therefore seek mandamus to require the
Minister of National Defence or other ministers to
conduct the initial assessment to determine if there
may be any "potentially adverse environmental
effects" as required by section 10, to refer the propo
sal to the Minister of the Environment for public
review by a panel presumably under section 12, and
otherwise to comply with the Order. The respondents
invoke sections 12, 13, and 20 of the Order as the
basis for compelling the Minister of the Environment
to hold the public review. Further, the applicants seek
certiorari to quash the decisions of the Governor in
Council referred to above. It is said that certiorari is
justified to quash the Orders of the Governor in
Council because they were made without compliance
with a "prerequisite", presumably referring to a fail
ure to comply first with the Order before making the
decisions complained of.
The respondents bring this motion to have the prin
cipal application turned into an action because, they
say, there will be many difficult issues of fact to be
determined as to whether there are "significant"
"potentially adverse environmental effects" (the lan
guage of the Guidelines Order) involved in the visit
of U.S. and U.K. naval vessels which are nuclear-
powered or which carry nuclear weapons. It is
assumed that this determination is necessary for the
Court to ascertain whether the respondents have com
plied with section 12 of the Order. The respondents
also argue that it would be premature for the Court to
consider whether the respondents have complied with
section 13 of the Order which requires the initiating
department, even where no public review is required
pursuant to section 12, to refer a proposal to the Min
ister of the Environment for public review by a panel
"if public concern about the proposal is such that
public review is desirable". I understand the position
of the respondents to be that the section 13 question
cannot be addressed until the Court has determined
whether a public review was required in any event by
the terms of section 12.
The applicants strongly resist turning this proceed
ing into an action. They point out that four days have
been set aside for a hearing of the principal applica
tion commencing June 9, 1992, and that to turn the
proceeding into an action at this point would seri
ously delay what is for them an urgent matter. They
also complain about the potential costs of having to
prove their case by the more demanding means
required for a trial.
I have concluded that both the applicants and the
respondents have misconceived the nature of the role
of the Court in dealing with the principal application.
This matter was not adequately addressed before me,
both sides seemingly assuming that it is the responsi
bility of the Court to sit on appeal from the factual
determinations of the "initiating department" or any
others of the respondents in relation to the potential
hazards involved in these visits of naval vessels and
in relation to the existence of such public concern
that a public review would be "desirable".
In much of the jurisprudence arising out of the
Environmental Assessment and Review Process
Guidelines Order thus far the dispute has been as to
whether the initiating department should have carried
out the initial assessment required by subsection
10(1). Many issues have been addressed such as
whether the guidelines are mandatory, and whether
particular projects or activities fit within them) In
other cases where an initial assessment has been done
and a decision made not to refer a proposal for public
review, this Court has emphasized the limited nature
of its role in judicial review of such decisions. In
Cdn. Wildlife Federation Inc. y. Canada (Minister of
the Environment) 2 Muldoon J. had held that the Min
ister of the Environment had erred in law in the inter
pretation he gave to terms such as "insignificant" and
"mitigable" in paragraph 12(c) of the Order. On
appeal, the Federal Court of Appeal stated, at page
661:
As earlier pointed out, the second branch of Sask. Water's
argument was that the learned Judge applied the wrong stan
dard of judicial review in respect of the Minister's findings of
fact and of opinion relating to the Project in that he purported
to review those findings on their merits. To do so, it was
argued, had the effect of substituting his opinion for that of the
Minister. The jurisprudence is replete with cases cautioning a
court, sitting in judicial review of a decision by a statutory
authority, from interfering with that decision merely because
the Court might have differently decided the matter had it been
charged with that responsibility. If that is what the learned
Judge did in this case, then I agree that he erred in so doing.
However, as I read his reasons, I do not perceive that that
was what he did. There is no doubt that, inter alia, he referred
to the findings reported in the IEE on the question of signifi
cant, moderate and insignificant adverse environmental effects,
on information deficiencies, and on mitigation measures. But
he did so, not with a view to second-guessing the Minister.
Rather, quite properly, he was endeavouring to ascertain
whether the Minister, in deciding whether he should or should
not appoint a Panel for the Public review of the Project, had
proceeded on a wrong principle, taken into account legally
irrelevant considerations or otherwise acted beyond the scope
of his authority.
In Cantwell v. Canada (Minister of the Environ
ment) 3 my colleague MacKay J. was asked to review
an initial assessment made under the Order. He
Most of these issues have been authoritatively determined
by the Supreme Court of Canada in Friends of the Oldman
River Society v. Canada (Minister of Transport), [1992] 1
S.C.R. 3.
2 (1989), 4 C.E.L.R. (N.S.) 201 (F.C.T.D.); affd [1991] 1
F.C. 641 (C.A.).
3 (1991), 6 C.E.L.R. (N.S.) 16 (F.C.T.D.).
described the role of the Court, in such a review as
follows [at page 31]:
In judicial review of administrative action, as here through
an application for certiorari, the role of the Court is not that of
an appellant body reviewing the merits of the administrator's
decision. It is not the Court's function to determine whether
the decision in question is right or wrong; rather, the Court is
concerned only with the question whether the administrator
has acted in accord with the law.
In determining whether an official or agency has
acted in accordance with the law in reaching the deci
sion in question, the Court can consider whether the
official or agency has correctly interpreted the law
and whether the decision has been taken on the basis
of facts and reasons relevant to the purpose for which
the authority was given to make such a decision. But
within that permissible range, the original decision-
maker has a right to make a decision which the Court
cannot reverse even if it perchance does not agree
with such decision. In carrying out its responsibilities
under section 12 of the Guidelines Order, an initiat
ing department must make an informed prediction of
the possibilities and likelihoods of adverse effects
and some calculation as to whether those effects may
he "significant". Such matters are not only incapable
of precise proof but they implicitly involve value
judgments as to what is "significant" in relation to
both private and public interests. In reviewing the
decision of an initiating department taken under sec
tion 12, the Court should not interfere unless it is sat
isfied that there is no reasonable basis for the deci
sion taken by the department. In relation to decisions
taken under section 13 as to whether there is such
public concern as to make a public review "desira-
ble", I agree with MacKay J. that the Court is entitled
on judicial review to see if the Minister acted in good
faith and took into account relevant considerations.
Unless the Court is satisfied that the decision was
made on completely irrelevant factors it cannot quash
such a decision. It is not for the Court to substitute its
own assessment of the weight and nature of public
concern and determine that a public review is or is
not "desirable".
Within this restricted role of the Court, there is no
place for the presentation of factual or expert opinion
on the nature or degree of potential environmental
effects as such. What the Court and therefore the par
ties must address is (1) whether the activity comes
within the guidelines and an initial assessment is as a
matter of law required by section 10; (2) whether the
initiating department has carried out such an assess
ment under section 12; (3) if so, whether a decision
was purportedly made under section 12 but wholly
without regard to relevant factors; and (4) if a deter
mination has been made under section 13, whether
that has been made wholly without regard to relevant
factors.
Instead, in the present case the applicants seem to
think that in hearing their application this Court will
sit as an appellate body determining whether the ini
tiating department made the correct decision about
the existence or non-existence of potential adverse
environmental effects flowing from the visitation of
nuclear naval vessels and, if so, also determine
whether such effects will be "significant". Further, in
relation to the obvious failure by the initiating depart
ment here so far to make an affirmative decision
under section 13 that there should, in any event, be a
public review due to "public concern", the applicants
apparently expect this Court to review a plethora of
material being tendered by them as to the number of
people concerned about these visits so that the Court
can overrule the initiating department and make a
determination that public concern is such that a pub
lic review before a panel is "desirable".
In support of their approach the applicants have
filed some 40 affidavits to date and there are sugges
tions that more may be on the way. I have quickly
perused these affidavits. I have no doubt of the
sincerity and public spiritedness of the affiants but
many of the affidavits have little or no probative
value on the issues which the Court will have to
address. Some of the affidavits appear to be intended
as expert evidence on the issue of the existence and
probability of adverse consequences of the visits by
nuclear vessels. Similarly the respondents in their one
affidavit indicate they may want to present the evi
dence of some 20 experts. With the greatest respect I
am unable to see how the applicants' affidavits con
cerning the potential adverse effects can be relevant
except possibly to the extent that they can demon
strate, if such is possible, that the initiating depart
ment could have had no reasonable basis whatever
for concluding that there were no significant potential
adverse environmental effects from the naval visits.
The respondents' scientific evidence can be relevant
only to the extent it shows some possible basis for
that decision. In other words the issue before the
Court will be not whether visits by nuclear-powered
or nuclear-armed naval vessels create significant
potentially adverse environmental effects but whether
the initiating department made a decision on this
question; if so, what material it had before it in reach
ing such a decision; and whether it decided so within
the limits of judgment allowed to it under the Act and
having regard to at least some legally relevant fac
tors.
Also among the numerous affidavits of the appli
cants are many ostensibly related to the existence of
"public concern", presumably in support of an argu
ment that the initiating department wrongly failed to
conclude under section 13 that such public concern
existed as to make a public review desirable. It
should be observed that the only public concerns rel
evant are those which the department could or should
have had in mind when it decided (if it did) not to
refer the proposal for review under section 13. At
least one of the affidavits, that of Mr. John Brewin,
M.P. is addressed to that issue, providing evidence of
public concerns communicated to the Minister of
National Defence before the decision in question was
made by the Governor in Council. But many of the
affidavits describe personal or local concerns, some
concerns expressed outside of Canada, some
expressed after the decision in question or not neces
sarily ever addressed to the officials who made those
decisions.
For these reasons I am unsympathetic to the argu
ments of the respondents that there are difficult tech
nical factual determinations to be made which will
require pleadings and a trial and the cross-examina
tion viva voce of experts and others. It is not the role
of the Court in these proceedings to become an acad
emy of science to arbitrate conflicting scientific pre
dictions, or to act as a kind of legislative upper cham
ber to weigh expressions of public concern and
determine which ones should be respected. Whether
society would be well served by the Court perform
ing either of these roles, which I gravely doubt, they
are not the roles conferred upon it in the exercise of
judicial review under section 18 of the Federal Court
Act [R.S.C., 1985, c. F-7].
I am therefore not going to direct that this matter
be tried by way of an action. I think many of the con
cerns of the respondents can be met if the parties
focus on the real issues. For their part the respondents
could clarify their position as to what they have or
have not done pursuant to the Order and what kind of
information was taken into account in respect of any
decisions taken. In the one affidavit filed by the
respondents, that of Commander Chesley James
Price, Assistant Judge Advocate General of the
Pacific Region, their position is stated in part as fol
lows:
h. DND recently conducted an environmental assessment of
the policy approving the continuation of visits to Canadian
ports by U.S. and U.K. nuclear powered vessels and vessels
capable of carrying nuclear weapons and concluded that this
activity has an insignificant adverse environmental impact.
It is of course open to the applicants to contest this
evidence but if it is correct then there would appear
to be no need for a mandamus requiring an initial
assessment. At the same time it would be open to dis
pute as to whether the Department of National
Defence acted in accordance with the law in carrying
out this assessment and that is a matter upon which
the respondents are in the best position to provide
evidence.
For their part, the applicants should reassess very
carefully the way they are conducting this proceed
ing. The sheer volume of their affidavits can do noth
ing but slow the process and add to its cost. Further,
the current and future affidavits filed in this matter
should be reviewed very carefully and many of them
excised before cross-examination is required or it
becomes necessary for the Court to entertain motions
for them to be struck out. This is an originating pro
ceeding, yet the majority of affidavits I have
examined are replete with hearsay evidence which is
inadmissible on this kind of application. Some pur
port to be expert evidence and, subject to the depo-
nents being accepted by the Court as expert, might be
admissible if they pertain to anything this Court must
decide. But as I have pointed out, the issue for the
Court is whether the initiating department had any
relevant factors before it in reaching the conclusions
it reached, not whether this Court thinks that nuclear
vessels create hazards unacceptable to Canadians or
that public concern is such that a public review
should be held. If the applicants persist with their
flurry of paper they may have to pay the additional
costs due to the proceedings being prolonged by
cross-examination on futile affidavits, or by disputes
over the admissibility of irrelevant or hearsay evi
dence. 4
The respondents also had sought to have the prin
cipal application turned into an action because they
understood that the applicants might be raising issues
under the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]]. It was suggested that
this might cause the respondents to invoke section 1
of the Charter which would also in their view require
the determination of difficult factual questions which
could best be done on the basis of viva voce evidence.
At the hearing before me the applicants confirmed
4 I would also draw the parties' attention to problems I des
cribed arising out of the use of experts' affidavits on motions
in Apple Computer, Inc. v. Minitronics of Canada Lid., [1988]
2 F.C. 265 (T.D.), at pp. 289-290.
that they do not intend to raise any Charter issue and
this therefore removes another possible reason for
converting the application into an action.
I have therefore dismissed the application of the
respondents to have the principal application pro
ceeded with as an action.
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.