Friends of the Earth v. Canada (Governor-in-Council) et al., 2008 FC 1183

• Judge: Barnes, J.
• Court: Federal Court (Canada)
• Case Date: June 18, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 1183;(2008), 336 F.T.R. 117 (FC)

Friends of the Earth v. Can. (2008), 336 F.T.R. 117 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. OC.023

Friends of the Earth - Les Ami(e)s de la Terre (applicant) v. The Governor in Council and The Minister of the Environment (respondents)

Friends of the Earth - Les Ami(e)s de la Terre (applicant) v. The Governor in Council (respondent)

Friends of the Earth - Les Ami(e)s de la Terre (applicant) v. The Minister of the Environment (respondent)

(T-2013-07; T-78-08; T-1683-07; 2008 FC 1183)

Indexed As: Friends of the Earth v. Canada (Governor-in-Council) et al.

Federal Court

Barnes, J.

October 20, 2008.

Summary:

The Friends of the Earth - Les Ami(e)s de la Terre brought three applications for judicial review, seeking declaratory and mandatory relief for alleged breaches of duties said to arise under the Kyoto Protocol Implementation Act. The Minister of the Environment and the Governor-in-Council asserted that the statutory duties were not justiciable because they were not amenable to judicial review. The applications were heard consecutively.

The Federal Court dismissed the applications. The court had no role to play reviewing the reasonableness of the government's response to Canada's Kyoto commitments. Even if the court was wrong about the issue of justiciability, it would, as a matter of discretion, still decline to make a mandatory order.

Administrative Law - Topic 3205.2

Judicial review - General - Governmental action - The issues raised by three applications for judicial review seeking declaratory and mandatory relief, concerned the interpretation of the Kyoto Protocol Implementation Act; specifically, whether the responsibilities imposed upon the government were justiciable - In determining the issue, the Federal Court observed that "[o]ne of the guiding principles of justiciability is that all of the branches of government must be sensitive to the separation of function within Canada's constitutional matrix so as not to inappropriately intrude into the spheres reserved to the other branches. ... Generally a court will not involve itself in the review of the actions or decisions of the executive or legislative branches where the subject matter of the dispute is either inappropriate for judicial involvement or where the court lacks the capacity to properly resolve it" - See paragraphs 24 to 26.

Administrative Law - Topic 3211

Judicial review - General - Review of exercise of statutory power - A not-for-profit organization (FOTE) brought three applications for judicial review, seeking relief for alleged breaches of duties said to arise under the Kyoto Protocol Implementation Act (KPIA) - The Minister of the Environment and the Governor-in-Council (GIC) asserted that the statutory duties were not justiciable - The Federal Court agreed with the government's position that justiciability was a threshold question of law which was not the proper subject of a standard of review analysis - "The KPIA either imposes the legal duties postulated by FOTE or it does not and no question of deference arises on that issue" - The issue was a matter of statutory interpretation directed at identifying whether Parliament intended that the statutory duties be subjected to judicial scrutiny and remediation - See paragraphs 19, 31 to 32.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The Friends of the Earth - Les Ami(e)s de la Terre (FOTE), brought three applications for judicial review, alleging that the government breached its duties said to arise under the Kyoto Protocol Implementation Act (KPIA) - The government challenged FOTE's standing to bring the applications, on the basis of the justiciability of the issues raised - The Federal Court was satisfied that FOTE had met the other requirements of public interest standing; namely, it had a genuine interest in the subject matter raised, there was a serious issue presented and there was no other reasonable and effective way to bring the matters before the court - "The issue of FOTE's standing will be resolved, therefore, solely on the basis of the justiciability of the substantive issues it raises" - See paragraph 20.

Administrative Law - Topic 3701

Judicial review - Mandamus - Mandamus to government and executive - General - In the context of applications for judicial review of the government's response to Canada's Kyoto commitments within the Kyoto Protocol Implementation Act, the Federal Court noted that "there may be a limited role for the Court in the enforcement of the clearly mandatory elements of the Act", but no such matters were at issue in the applications - The court declined to make a mandatory order against the government, because the exercise would be meaningless in practical terms - See paragraphs 46 to 47.

Administrative Law - Topic 4567

Judicial review - Declaratory action - Bars - Lack of justiciable issue - At issue was whether the words in s. 5 of the Kyoto Protocol Implementation Act, "to ensure that Canada meets its [Kyoto] obligations" created justiciable duties; specifically, whether the Minister of the Environment was permitted to tender a Climate Change Plan that was non-compliant with Canada's Kyoto obligations - The Federal Court held that the issue was not justiciable - Section 5 was coupled with policy considerations - It was not appropriate to parse s. 5 into justiciable and non-justiciable components - "While the failure of the Minister to prepare a Climate Change Plan may well be justiciable, an evaluation of its content is not" - Further, the word "ensure" did not indicate an imperative - Also, the Act contemplated ongoing adjustment and cooperative initiatives with third parties - In addition, it would be incongruous to order the Minister to prepare a compliant Plan where he had declined to do so for reasons of public policy - See paragraphs 33 to 36.

Administrative Law - Topic 4567

Judicial review - Declaratory action - Bars - Lack of justiciable issue - A Canadian not-for-profit organization alleged that the Governor-in-Council (GIC) failed in its duty under s. 7 of the Kyoto Protocol Implementation Act to make, amend or repeal regulations necessary to ensure that Canada met its obligations under the Kyoto Protocol within 180 days - The GIC asserted that the statutory duties were not justiciable - The Federal Court agreed - The words "to ensure" used in s. 7 reflected only a permissive intent - An isolated and literal interpretation of s. 7(1) was incompatible with the realities of making regulatory changes, and was inconsistent with the language of s. 7(2) which allowed the GIC to make further regulatory changes to also "ensure" that Canada met its Kyoto obligations - The intent of ss. 7(1) and (2) was to allow for an ongoing process to regulate Kyoto compliance, with the initial 180-day time frame being merely directory - Further, s. 6 of the Act said only that the GIC "may" make regulations - As the court was in no position to dictate the substance of the regulatory scheme, it was "highly unlikely" that Parliament intended the time frame to be mandatory and justiciable - See paragraphs 37 to 40.

Administrative Law - Topic 4567

Judicial review - Declaratory action - Bars - Lack of justiciable issue - Three applications for judicial review sought declaratory relief for alleged breaches of duties said to arise under the Kyoto Protocol Implementation Act (KPIA) - The government asserted that the statutory duties were not justiciable because it's accountability was at the ballot box, not the courtroom - The Federal Court agreed that the KPIA contemplated Parliamentary and public accountability - While such a scheme would not always displace an enforcement role for the court, in the overall context of this case, it did - If Parliament had intended to impose a justiciable duty upon the government, it could easily have said so instead of using equivocal language - It created an indirect scheme for "ensuring" compliance (scientific review, reporting to the public and to Parliament), not amenable to judicial scrutiny - "[T]he statutory scheme must be interpreted as excluding judicial review over issues of substantive Kyoto compliance including the regulatory function. Parliament has, with the KPIA, created a comprehensive system of public and Parliamentary accountability as a substitute for judicial review" - See paragraphs 42 to 44.

Courts - Topic 2006

Jurisdiction - General principles - Issues not suitable for judicial determination - General - [See Administrative Law - Topic 3205.2 ].

Crown - Topic 761

Duties of Ministers - General - [See first Administrative Law - Topic 4567 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See Administrative Law - Topic 3347 ].

Statutes - Topic 1449

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - General - The Federal Court considered the legislative history and background of the Kyoto Protocol Implementation Act (KPIA) - The court noted that, following its introduction to Parliament as a private member's bill, the KPIA became law on June 22, 2007, and that it was not supported by the government - "The KPIA thus embodies a legislative policy which is inconsistent with stated government policy" - See paragraph 8.

Statutes - Topic 2603

Interpretation of words and phrases - Modern rule (incl. Interpretation by context) - Intention from whole of section or statute - At issue was the interpretation of a number of the provisions of the Kyoto Protocol Implementation Act, to determine whether the responsibilities imposed upon the Minister of the Environment and the Governor-in-Council were justiciable - Before examining the specific language of the provisions, the Federal Court recalled the general principles of statutory interpretation, and emphasized the guiding principle that the search for the meaning of specific words or phrases was informed by the context of the entire statutory text - "Wherever possible the exercise is one of looking for internal consistency and harmony of the language used with the ultimate goal of advancing the intention of Parliament" - See paragraphs 21 to 23.

Statutes - Topic 5105

Operation and effect - Enabling Acts - Permissive Acts - What constitutes a permissive power - [See second Administrative Law - Topic 4567 ].

Statutes - Topic 9403

Treaty, convention and protocol implementation legislation - General principles - Interpretation - [See Administrative Law - Topic 3211 and all Administrative Law - Topic 4567 ].

Cases Noticed:

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 88 D.L.R.(4th) 193, refd to. [para. 20].

Fraser v. Canada (Attorney General), [2005] O.T.C. 1127; 51 Imm. L.R.(3d) 101 (Sup. Ct.), refd to. [para. 20].

R. v. Ryder Truck Rental Canada Ltd. (2000), 129 O.A.C. 80; 47 O.R.(3d) 171 (C.A.), refd to. [para. 22].

R. v. Greenshields, [1958] S.C.R. 216; 17 D.L.R.(2d) 33, refd to. [para. 23].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 119 D.L.R.(4th) 405, refd to. [para. 23].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 23].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241; 83 D.L.R.(4th) 297, refd to. [para. 24].

Reference Re Canada Assistance Plan Act (B.C.) - see Reference Re Constitutional Question Act (B.C.).

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 25].

Canadian Union of Public Employees et al. v. Canada (Minister of Health) (2004), 261 F.T.R. 237; 244 D.L.R.(4th) 175; 2004 FC 1334, refd to. [para. 25].

Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 26].

Chiasson v. Canada (2003), 303 N.R. 54; 226 D.L.R.(4th) 351; 2003 FCA 155, refd to. [para. 33].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Fire Brigades Union et al., [1995] 2 All E.R. 244; 180 N.R. 200 (H.L.), refd to. [para. 38].

Alexander Indian Band No. 134 et al. v. Canada (Minister of Indian Affairs and Northern Development), [1991] 2 F.C. 3; 39 F.T.R. 142 (T.D.), refd to. [para. 40].

Pim v. Ontario Minister of the Environment et al. (1978), 23 O.R.(2d) 45; 94 D.L.R.(3d) 254 (Div. Ct.), refd to. [para. 40].

Statutes Noticed:

Kyoto Protocol Implementation Act, S.C. 2007, c. 30, sect. 5 [para. 3]; sect. 7 [para. 5]; sect. 8, sect. 9 [para. 4].

Authors and Works Noticed:

Kyoto Protocol to the United Nations Framework Convention on Climate Change (1998), 37 I.L.M. 22, art. 3.1 [para. 3, footnote 1].

Sossin, Lorne M., Boundaries of Judicial Review: The Law of Justiciability in Canada (1999), pp. 4, 5 [para. 25]; 133 [para. 24].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 283 [para. 23].

Counsel:

Chris G. Paliare, Andrew K. Lokan and Hugh Wilkins, for the applicant;

Peter Southey and Andrea Bourke, for the respondents.

Solicitors of Record:

Paliare Roland Rosenberg Rothstein, LLP, Toronto, Ontario, and Ecojustice Canada, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

These applications were heard on June 18, 2008, at Toronto, Ontario, before Barnes, J., of the Federal Court, who rendered the following judgment and reasons for judgment at Vancouver, B.C., on October 20, 2008.