Society Promoting Environmental Conservation v. Canada (Attorney General), 2003 FCA 239

• Judge: Strayer, Evans and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 29, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FCA 239;(2003), 305 N.R. 203 (FCA)

Env. Conservation Soc. v. Can. (A.G.) (2003), 305 N.R. 203 (FCA)

MLB headnote and full text

Temp. Cite: [2003] N.R. TBEd. JN.011

Attorney General of Canada (appellant) v. Society Promoting Environmental Conservation on its own behalf and on behalf of its members (respondent)

(A-142-02; 2003 FCA 239)

Indexed As: Society Promoting Environmental Conservation v. Canada (Attorney General)

Federal Court of Appeal

Strayer, Evans and Malone, JJ.A.

May 29, 2003.

Summary:

The federal government expropriated British Columbia sea bed and lands for continued use as a test firing torpedo range by the military. The Society Promoting Envi­ronmental Con­versation applied for judicial review, raising fundamental ques­tions about the procedural and substantive require­ments of the federal expropriation legisla­tion.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 217 F.T.R. 279, held that the expropriation was flawed and could not stand because of a failure by the hearing officer to comply with certain provi­sions of the Expropriation Act. The Attorney General of Canada appealed and sought a stay of the applications judge's order pend­ing the appeal.

The Federal Court of Appeal, per Isaac, J.A., granted the motion. The appeal pro­ceeded.

The Federal Court of Appeal, in the deci­sion reported below, allowed the appeal. The court set aside the decision of the applica­tions judge and dismissed the Society's judicial review application, with costs to the Attorney General.

Administrative Law - Topic 3215

Judicial review - General - Mandatory method or procedure - [See Expropriation - Topic 15 and Statutes - Topic 5128 ].

Expropriation - Topic 15

Right to compensation - Interpretation of expropriation statute - A federal Minister registered a notice of intention to expropri­ate British Columbia sea bed and lands for military torpedo testing - Three thousand objections were filed - A Hearing Officer was appointed - Hearings were held and the expropriation was confirmed by the Minister - The lead objector, an environ­mental organization, applied for judicial review - An applications judge held that the Hearing Officer failed to comply with the mandatory procedural requirement in s. 10(4)(a) of the Expropriation Act which required the officer to notify all objectors within seven days of his appointment of the time and place fixed for a public hear­ing (i.e., 570 objectors were notified after the seven day period) - The Federal Court of Appeal, on the basis of a pragmatic and functional analysis (as opposed to simply applying the mandatory/directory distinc­tion), ruled that the hearing officer's fail­ure to give timely notice to all the objec­tors did not warrant the court setting aside the expropriation - The court opined fur­ther that even if it was the law that any breach of an obligatory procedural provi­sion in an expropriation statute always invalidated an expropriation order, that rule only applied when those denied their statu­tory rights owned property affected by the order, or would lose public rights over the property, which was not the case here - See paragraphs 36 to 69.

Expropriation - Topic 2173

Practice and procedure - Hearings and inquiries - Report of inquiry officer - A federal Minister registered a notice of intention to expropriate British Columbia sea bed and lands for military torpedo testing - Three thousand objections were filed - A Hearing Officer was appointed, public hearings were held and the hearing officer submitted a report to the Minister who confirmed the expropriation - The lead objector, an envi­ronmental organiz­ation, applied for judicial review, arguing that the Hearing Officer did not meet the reporting obligations imposed by s. 10(4) of the Expropri­ation Act, because the report did not adequately describe the basis of the objections to the expropriation - A motions judge agreed that the report did not meet the requirements of stating the "nature and grounds of the objections made" as required by s. 10(4)(d) - The Federal Court of Appeal held that the motions judge erred in this regard - The report was adequate - See para­graphs 70 to 91.

Expropriation - Topic 2173

Practice and procedure - Hearings and inquiries - Report of inquiry officer - A federal Minister registered a notice of intention to expropriate British Columbia sea bed and lands for military torpedo testing - Three thousand objections were filed - A Hearing Officer was appointed, public hearings were held and the hearing officer submitted a report to the Minister who confirmed the expropriation - The lead objector, an envi­ronmental organiz­ation, applied for judicial review, arguing that the Hearing Officer did not meet the reporting obligations imposed by s. 10(4) of the Expropri­ation Act, because the report did not adequately describe the basis of the objections to the expropriation - The Federal Court of Appeal held that the report was adequate - Without deciding the issue, the court assumed for purposes of its analysis that simple, rather than patent unreasonableness, was the appropriate standard of review of any exercise of discretion in the discharge of the hearing officer's duty to report - See paragraph 78.

Expropriation - Topic 2175

Practice and procedure - Hearings and inquiries - Notice - [See Expropriation - Topic 15 ].

Expropriation - Topic 2177

Practice and procedure - Hearings and inquiries - Power of hearing officer to disregard objections - A federal Minister registered a notice of intention to expropri­ate British Columbia sea bed and lands for military torpedo testing - Three thousand objections were filed - A Hearing Officer was appointed, public hearings were held to hear objec­tions - The hearing officer refused to hear objectors who alleged that the federal government was acting in bad faith because no one was present to respond on behalf of the Minister - The hearing officer submitted a report to the Minister who confirmed the expropriation -The lead objector, an envi­ronmental or­ganization, applied for judicial review, arguing that the Hearing Officer erred in not hearing the objectors who alleged bad faith - The Federal Court of Appeal held that the hearing officer did not act unreas­onably in excluding the objections alleging bad faith - Under s. 10(5) of the Expropri­ation Act, it was the hearing officer who could decide whether an objection was frivolous or vexatious or made in bad faith - See paragraphs 92 to 95.

Expropriation - Topic 2177

Practice and procedure - Hearings and inquiries - Power of hearing officer to disregard objections - A federal Minister registered a notice of intention to expropri­ate British Columbia sea bed and lands for military torpedo testing - Three thousand objections were filed - A Hearing Officer was appointed, public hearings were held to hear objec­tions - The hearing officer decided that persons who filed objec­tions after June 21, 1999, were not entitled to be heard, since the statutory deadline for serving objections expired 30 days after the publication of the Minister's notice of intention in the Canada Gazette on May 22 - Approximately 260 people were pre­vented from appearing at the public hear­ings on this ground - The hear­ing officer based his ruling on s. 9 of the Expropri­ation Act - The Federal Court of Appeal held that the hearing officer did not err in law when he construed the Act as limiting the right to be heard to those who served objections within 30 days from the publi­cation of the Minister's notice of intention - See paragraphs 103 to 112.

Expropriation - Topic 2177

Practice and procedure - Hearings and inquiries - Power of hearing officer to disregard objections - A federal Minister registered a notice of intention to expropri­ate British Columbia sea bed and lands for military torpedo testing - Three thousand objections were filed - A Hearing Officer was appointed, public hearings were held to hear objec­tions - The hearing officer refused to accept the objections of approxi­mately 350 people because they appeared to have sent their objections to the Minis­ter by regular mail - The hearing officer based his decision on s. 3(2) of the Expro­priation Act which required objections to be left at or sent by registered mail to the office of the Minister - The Federal Court of Appeal held that the hearing officer did not misinterpret the legislation - See para­graphs 113 to 116.

Expropriation - Topic 3925

Taking of title - Notice of expropriation - Statement of purpose of expropriation - A federal Minister registered a notice of intention to expropriate British Columbia sea bed and lands for military torpedo testing - Three thousand objections were filed - A Hearing Officer was appointed, public hearings were held and the hearing officer submitted a report to the Minister who confirmed the expropriation - The lead objector, an envi­ronmental organiz­ation, complained that the Minister's notice of intention to expropriate did not contain a statement of the purpose for which the land was required in accordance with s. 5(1)(c) of the Expropriation Act - The Minister relied on s. 5(3) of the Act which provided that where the expropriation related to the safety or security of Canada it would not be in the public interest to further indicate that purpose - The Federal Court of Appeal rejected the lead object­or's argument - See paragraphs 96 to 102.

Statutes - Topic 5128

Operation and effect - Enabling acts - Obligatory, mandatory, imperative and absolute acts - Effect of failure to comply with mandatory act - The Federal Court of Appeal noted that at one time, courts approached the question of whether a public authority's breach of a statutory procedural or formal requirements invali­dated administrative action to which it applied by asking whether the require­ment in question was mandatory or direc­tory in nature - However, the court stated that the jurisprudence of the Supreme Court of Canada on the manda­tory/directory distinc­tion, and the contex­tual analysis currently required by a prag­matic and functional approach to issues of ad­ministrative law, suggested a reformulation of the legal tests for deter­mining when a reviewing court should set aside adminis­trative action on the ground that it was taken in breach of a statutory provision of a procedural or formal nature - The court set out in detail what consider­ations such an ana­lytical framework should include - See paragraphs 26 to 35.

Cases Noticed:

Medi-Data Inc. v. Canada (Attorney Gen­eral), [1972] F.C. 469 (F.C.A.), refd to. [para. 26].

LePage v. Canada (1984), 60 N.R. 329 (F.C.A.), refd to. [para. 26].

Cleary v. Correctional Service of Canada et al. (1990), 108 N.R. 225; 44 Admin. L.R. 142 (F.C.A.), refd to. [para. 27].

Montreal Street Railway Co. v. Norman­din, [1917] A.C. 170 (P.C.), refd to. [para. 28].

British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; 166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1, refd to. [para. 29].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Develop­ment), [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 31].

Minister of National Revenue v. Ginsberg (1996), 198 N.R. 148 (F.C.A.), refd to. [para. 31].

Kyte v. Canada (1996), 206 N.R. 202 (F.C.A.), refd to. [para. 31].

London and Clydeside Estates Ltd. v. Aberdeen District Council, [1980] 1 W.L.R. 182 (H.L.), refd to. [para. 32].

R. v. Immigration Appeal Tribunal; Ex parte Jeyeanthan, [2000] 1 W.L.R. 354 (C.A.), refd to. [para. 34].

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170 (S.C.C.), refd to. [para. 59].

Dr. Q. v. College of Physicians and Sur­geons (B.C.) - see Dr. Q., Re.

Costello and Dickhoff v. Calgary (City), [1983] 1 S.C.R. 14; 46 N.R. 54; 41 A.R. 318, refd to. [para. 61].

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81, refd to. [para. 63].

Thomson v. Halifax Power Co. (1914), 16 D.L.R. 424 (N.S.C.A.), refd to. [para. 65].

Ostrom v. Sidney (Township) (1888), 15 O.A.R. 372 (C.A.), refd to. [para. 65].

Central Ontario Coalition Concerning Hydro Transmission Systems et al. v. Ontario Hydro et al. (1984), 4 O.A.C. 249; 10 D.L.R.(4th) 341 (Div. Ct.), refd to. [para. 68].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 100].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 100].

Statutes Noticed:

Expropriation Act, R.S.C. 1985, c. E-21, sect. 3(2) [para. 113]; sect. 5 [para. 15]; sect. 5(1)(c) [para. 96]; sect. 5(3) [para. 97]; sect. 8(1), sect. 8(3) [para. 16]; sect. 9 [paras. 16, 104]; sect. 10 [para. 17]; sect. 10(1) [para. 105]; sect. 10(4) [para. 18]; sect. 10(4)(a) [para. 21]; sect. 10(5), sect. 10(6), sect. 10(7) [para. 19]; sect. 10(8) [para. 18]; sect. 11(1)(a)(ii), sect. 14(1)(b) [para. 20].

Counsel:

John Hunter and Michael Stephens, for the appellant;

Andrew Gage and David Wright, for the respondent.

Solicitors of Record:

Hunter Voith, Vancouver, British Colum­bia, for the appellant;

West Coast Environmental Law Associ­ation, Vancouver, British Columbia, for the respondent.

This appeal was heard on March 5, 2003, at Vancouver, British Columbia, before Strayer, Evans and Malone, JJ.A., of the Federal Court of Appeal.

The decision of the Federal Court of Appeal was delivered on May 29, 2003, when the following opinions were filed:

Evans, J.A. (Malone, J.A., concurring) - see paragraphs 1 to 117;

Strayer, J.A. - see paragraphs 118 and 119.