Greenpeace Canada et al. v. Canada (Attorney General) et al., (2014) 455 F.T.R. 1 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: May 14, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 455 F.T.R. 1 (FC);2014 FC 463

Greenpeace Can. v. Can. (A.G.) (2014), 455 F.T.R. 1 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. MY.034

Greenpeace Canada, Lake Ontario Waterkeeper, Northwatch and Canadian Environmental Law Association (applicants) v. Attorney General of Canada, Minister of the Environment, Minister of Fisheries and Oceans, Minister of Transport, Canadian Nuclear Safety Commission and Ontario Power Generation Inc. (respondents)

(T-1572-11)

Greenpeace Canada and Canadian Environmental Law Association (applicants) v. Attorney General of Canada and Ontario Power Generation Inc. (respondents)

(T-1723-12; 2014 FC 463; 2014 CF 463)

Indexed As: Greenpeace Canada et al. v. Canada (Attorney General) et al.

Federal Court

Russell, J.

May 14, 2014.

Summary:

This matter involved two judicial review applications by interested parties under s. 18.1 of the Federal Courts Act respecting the Darlington New Nuclear Power Plant Project proposed by Ontario Power Generation Inc. (OPG). The first application (T-1572-11), challenged the adequacy of a federal environmental assessment (EA) conducted by a joint review panel (JRP) established under an agreement between the federal Minister of the Environment and the Canadian Nuclear Safety Commission (CNSC) pursuant to s. 40 of the Canadian Environmental Assessment Act (CEAA). The second application (T-1723-12), challenged a Site Preparation Licence that was issued by the CNSC to OPG on August 17, 2012, under the Nuclear Safety and Control Act following the completion of the EA and the Government of Canada's response to the JRP's Environmental Assessment Report (EA Report).

The Federal Court allowed the first application (T-1572-11) in part. The JRP's environmental assessment failed to comply with the CEAA and the agreement which established the JRP. The court, however, declined to quash the EA Report in its entirety, but returned the matter to the JRP (or a duly constituted panel) for further consideration and determination of the specific issues set out by the court. The court ruled that until such time as the JRP had completed its reconsideration, the Governor in Council had no jurisdiction under the CEAA to approve the response of any Responsible Authority to the JRP's Report, and the CNSC, the Department of Fisheries and Oceans (DFO) and Transport Canada had no jurisdiction to issue any authorizations or take any other actions which would enable the Project to proceed, in whole or in part. Until such time as the Panel (or a duly constituted panel) had completed its work of reconsideration and determination, the CNSC, the Minister of Fisheries and Oceans, and the Minister of Transport, or any other agents, servants and officials, were not to issue any licences, permits, certificates, or statutory authorizations which would permit the Project to be carried out, in whole or in part. As to the second application (T-1723-12), a motion to strike by applicants was dismissed. The application, however, was allowed in part on the sole ground that, as matters stood, the EA Report had yet to fully comply with the CEAA with respect to the specific issues set out by the court in the reasons for judgment in T-1572-11. That meant that the CNSC's issuance of the Licence to OPG on August 17, 2012, was invalid and unlawful due to non-compliance with the CEAA and the CNSC had no jurisdiction to issue the Licence until such time as the CEAA was fully complied with as directed by the court in T-1572-11. The court quashed the Licence.

Administrative Law - Topic 3308

Judicial review - General - Bars - Collateral attack - [See second Pollution Control - Topic 1842.5 ].

Pollution Control - Topic 1013

Licensing or approval - General - Judicial review - Ontario Power Generation Inc. (OPG) proposed a new nuclear power project - An environmental assessment (EA) was carried out by a joint review panel (JRP) (Canadian Environmental Assessment Act) - The JRP also reviewed OPG's application under the Nuclear Safety and Control Act (NSCA) for a site preparation licence - Thereafter, the Canadian Nuclear Safety Commission issued the licence - Interested parties (applicants) applied for judicial review, challenging the validity of the Licence - The Federal Court ruled that the Licence was invalid because the EA was deficient in a number of respects - The court rejected arguments by the applicants that the licence did not comply with the requirements of the NSCA and Regulations because a specific reactor technology had not been chosen or that there was a breach of fairness because the JRP relied on extraneous documents not on the record - See paragraphs 395 to 431.

Pollution Control - Topic 1842.5

Environmental assessments or impact studies - Environmental assessment legislation - Project - What constitutes - A Canadian Environmental Assessment Act (CEAA) joint review panel (JRP) conducted an environmental assessment (EA) of a proposed nuclear power plant project - Interested parties applied for judicial review, arguing that the failure to identify the particular reactor design meant that the JRP did not review a "project" within the meaning of the CEAA, because the specific nature of the physical work to be undertaken was not identified - The Federal Court held that the proposal was not hypothetical - Four specific reactor options were identified - The JRP's task was to assess the environmental impact of a project that would eventually select one of those options - A project that contained technological options was not necessarily inchoate or merely conceptual in nature - It simply meant that the EA had to consider and address environmental impact for all four options - That complicated the assessment but, it did not necessarily render it hypothetical, or remove the project in this case from the definition of "project" contained in the CEAA - See paragraphs 124 to 129.

Pollution Control - Topic 1842.5

Environmental assessments or impact studies - Environmental assessment legislation - Project - What constitutes - A Canadian Environmental Assessment Act (CEAA) joint review panel (JRP) conducted an environmental assessment (EA) of a proposed nuclear power plant project - Interested parties (applicants) applied for judicial review, arguing that the failure to identify the particular reactor design meant that the JRP did not review a "project" within the meaning of the CEAA - The respondents claimed that the applicants' allegation that the JRP failed to assess a "project" was an improper collateral attack on the scoping decision of the Minister of the Environment (Can.) - The Federal Court opined that what the applicants were really attacking was not the scoping decision, but the Minister's decision to refer the project to a review panel - It seemed to the court that there had be a "project" before that could occur - It might be that the absence of a "project" would not be plain until the scoping decision was issued, but that was a separate issue - In any case, it was clear that there was a "project" to be assessed in this case - See paragraphs 130 to 174.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment Legislation - Joint review panel - A Canadian Environmental Assessment Act (CEAA) joint review panel (JRP) conducted an environmental assessment (EA) of a nuclear power plant, based on a "bounding scenario" or "plant parameter envelope" (PPE) encompassing several possible reactor technologies - No specific design had been determined - Interested parties (applicants) applied for judicial review, arguing that the JRP failed to conduct an EA in accordance with the CEAA - The Federal Court held that the JRP's conclusion that the PPE approach allowed for a meaningful EA could not be said to be unreasonable - Nor was it not in compliance with the CEAA - However, the court held that the EA failed to comply with the CEAA and the Agreement establishing the JRP in three areas: (a) Gaps in the bounding scenario regarding hazardous substance emissions and on-site chemical inventories; (b) Consideration of spent nuclear fuel; and (c) Deferral of the analysis of a severe common cause accident - See paragraphs 175 to 394.

Pollution Control - Topic 1852

Environmental assessments or impact studies - Environmental Assessment Legislation - Judicial review - Ontario Power Generation (OPG) proposed a new nuclear power project - A joint review panel was established by the federal Environment Minister and the Canadian Nuclear Safety Commission (CNSC) (Canadian Environmental Assessment Act, s. 40), to conduct an environmental assessment (EA) - Following the EA and the Government of Canada's response to the EA Report, a Site Preparation Licence was issued by the CNSC to OPG under the Nuclear Safety and Control Act - Interested parties brought two judicial review applications, the first challenging the adequacy of the EA (T-1572-11), and the second challenging the validity of the Licence (T-1723-12) - The Federal Court discussed the standard of review respecting the issues raised on the two applications - See paragraphs 20 to 31.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 20].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 20].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 21].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 21].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 21].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al. (2007), 318 F.T.R. 160; 2007 FC 955, revd. (2008), 379 N.R. 133; 2008 FCA 209, revd. (2010), 397 N.R. 232; 2010 SCC 2, refd to. [para. 22].

Pembina Institute for Appropriate Development et al. v. Canada (Attorney General) et al. (2008), 323 F.T.R. 297; 2008 FC 302, refd to. [para. 22].

Alberta Wilderness Association et al. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425; 165 F.T.R. 1 (T.D.), refd to. [para. 22].

Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) et al., [2000] 2 F.C. 263; 248 N.R. 25 (F.C.A.), refd to. [para. 22].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al. (2006), 345 N.R. 374; 2006 FCA 31, refd to. [para. 22].

Environmental Resource Centre et al. v. Canada (Minister of the Environment) et al. (2001), 214 F.T.R. 94; 2001 FCT 1423, refd to. [para. 22].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 22].

Bow Valley Naturalists Society et al. v. Canada (Minister of Canadian Heritage) et al., [2001] 2 F.C. 461; 266 N.R. 169 (C.A.), refd to. [para. 23].

Inverhuron & District Ratepayers' Association v. Canada (Minister of the Environment) et al. (2001), 273 N.R. 62; 2001 FCA 203, refd to. [para. 23].

Alberta Wilderness Association et al. v. Express Pipelines Ltd. et al. (1996), 201 N.R. 336; 137 D.L.R.(4th) 177 (F.C.A.), refd to. [para. 23].

Grand Riverkeeper, Labrador Inc. et al. v. Canada (Attorney General) et al. (2012), 422 F.T.R. 299; 2012 FC 1520, refd to. [para. 23].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 24].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 24].

Fond du Lac Denesuline First Nation et al. v. Canada (Attorney General) et al. (2010), 377 F.T.R. 50; 2010 FC 948, affd. (2012), 430 N.R. 190; 2012 FCA 73, refd to. [para. 24].

Conseil des Innus de Ekuanitshit v. Canada (Attorney General) et al. (2013), 431 F.T.R. 219; 2013 FC 418, refd to. [para. 27].

Canadian Transit Co. v. Canada (Minister of Transport) et al. (2011), 389 F.T.R. 85; 2011 FC 515, affd. (2012), 430 N.R. 259; 2012 FCA 70, refd to. [para. 27].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 27].

Kandola v. Canada (Minister of Citizenship and Immigration) (2014), 456 N.R. 115; 2014 FCA 85, refd to. [para. 27].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, refd to. [para. 28].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 31].

R. v. Hydro-Quebec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 37].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 2001 SCC 40, refd to. [para. 37].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203; 2002 SCC 41, refd to. [para. 37].

Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage) et al. (2003), 303 N.R. 365; 2003 FCA 197, refd to. [para. 37].

Friends of the Island Inc. v. Canada (Minister of Public Works) et al., [1993] 2 F.C. 229; (1993), 61 F.T.R. 4 (T.D.), refd to. [para. 38].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 39].

Bennett Environmental Inc. v. Canada (Minister of the Environment) et al. (2005), 338 N.R. 49; 2005 FCA 261, refd to. [para. 41].

Alberta Wilderness Association et al. v. Canada (Minister of Fisheries and Oceans) et al., [1999] 1 F.C. 483; 238 N.R. 88 (F.C.A.), refd to. [para. 49].

Innisfil (Township) v. Vespra, Township of; South Simcoe Estates et al., [1981] 2 S.C.R. 145; 37 N.R. 43, refd to. [para. 51].

West Northumberland Landfill Site, Re (1996), 19 C.E.L.R.(N.S.) 181 (Ont. Jt. Bd.), refd to. [para. 52].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 63].

Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment) et al. (1999), 163 F.T.R. 36 (T.D.), refd to. [para. 67].

Hamilton-Wentworth (Regional Municipality) v. Canada (Minister of the Environment) et al. (2001), 204 F.T.R. 161; 2001 FCT 381, affd. (2001), 284 N.R. 248; 2001 FCA 347, refd to. [para. 67].

Ottawa (City) v. Canadian Human Rights Commission et al. (2004), 267 F.T.R. 216; 2004 FC 1778, refd to. [para. 67].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 67].

Bourdon et al. v. Stelco Inc., [2005] 3 S.C.R. 279; 341 N.R. 207; 2005 SCC 64, refd to. [para. 67].

Québec (Procureur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 69].

Inverhuron & District Ratepayers' Association v. Canada (Minister of the Environment) et al. (2000), 191 F.T.R. 20; 34 C.E.L.R.(N.S.) 1 (T.D.), refd to. [para. 70].

Sharp v. Canadian Transportation Agency et al., [1999] 4 F.C. 363; 243 N.R. 160 (F.C.A.), refd to. [para. 79].

Inter-Church Uranium Committee Educational Co-operative v. Atomic Energy Control Board (2004), 322 N.R. 30; 2004 FCA 218, refd to. [para. 83].

West Vancouver (District) v. British Columbia (Minister of Transportation) et al. (2005), 273 F.T.R. 253; 2005 FC 593, refd to. [para. 85].

Union of Nova Scotia Indians et al. v. Canada (Attorney General) et al., [1997] 1 F.C. 325; 122 F.T.R. 81 (T.D.), refd to. [para. 85].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R. 81, refd to. [para. 86].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 92].

Mega International Commercial Bank (Canada) v. Canada (Attorney General) (2012), 407 F.T.R. 232; 2012 FC 407, refd to. [para. 92].

Amis de la Rivière Kipawa v. Canada (Attorney General) et al. (2007), 318 F.T.R. 76; 2007 FC 1267, refd to. [para. 92].

Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KG et al. (2006), 359 N.R. 84; 2006 FCA 398, refd to. [para. 94].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 100].

Air Canada v. Lorenz et al. (1999), 175 F.T.R. 211 (T.D.), refd to. [para. 100].

Krause et al. v. Canada et al., [1999] 2 F.C. 476; 236 N.R. 317 (F.C.A.), refd to. [para. 101].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 248].

Tl'azt'en First Nation v. Joseph (2013), 436 F.T.R. 79; 2013 FC 767, refd to. [para. 416].

International Relief Fund for the Afflicted and Needy (Canada) v. Minister of National Revenue (2013), 449 N.R. 95; 2013 FCA 178, refd to. [para. 416].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 416].

Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 424].

Pfizer Co. v. Minister of National Revenue (Customs and Excise), [1977] 1 S.C.R. 456; 6 N.R. 440, refd to. [para. 424].

Statutes Noticed:

Canadian Environmental Assessment Act, S.C. 1992, c. 37, sect. 2(1) [para. 41]; sect. 4(1), sect. 4(2) [para. 32]; sect. 11(1) [para. 111]; sect. 16(1), sect. 16(2) [para. 109]; sect. 34 [para. 32].

Class I Nuclear Facilities Regulations - see Nuclear Safety and Control Act Regulations (Can.).

Nuclear Safety and Control Act, S.C. 1997, c. 9, sect. 24(1), sect. 24(4) [para. 33].

Nuclear Safety and Control Act Regulations (Can.), Class I Nuclear Facilities Regulations, SOR/2000-204, sect. 3, sect. 4 [para. 34].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (5th Ed. 2011), pp. 143 to 146 [para. 58].

Canada, Greenpeace, Rock Solid? A scientific review of geological disposal of high-level radioactive waste (GeneWatch Report) (2010), generally [para. 284].

Canada, Greenpeace, The Hazards of Generation III Reactor Fuel Wastes: Implications for Transportation and Long-Term Management of Canada's Used Nuclear Fuel (Resnikoff Report) (2010), generally [para. 284].

Canada, Privy Council Office, A Framework for the Application of Precaution in Science-based Decision Making About Risk (2003), generally [para. 238].

Canadian Environmental Assessment Agency, Canadian Environmental Assessment Act - An Overview (2011) (Looseleaf Update), p. 8 [para. 68].

Canadian Environmental Assessment Agency, Glossary (2006), vol. 5, pp. 20, 26, Tabs 4J, 4K [para. 68].

GeneWatch Report - see Canada, Greenpeace, Rock Solid? A scientific review of geological disposal of high-level radioactive waste (GeneWatch Report).

Hazell, Stephen, and Benevides, Hugh, Federal Strategic Environmental Assessment: Towards A Legal Framework (1998), 7 J.E.L.P. 349, p. 371 [para. 42].

Resnikoff Report - see Canada, Greenpeace, The Hazards of Generation III Reactor Fuel Wastes: Implications for Transportation and Long-Term Management of Canada's Used Nuclear Fuel (Resnikoff Report).

Counsel:

Justin Duncan, Richard Lindgren and Theresa McClenaghan, for the applicants;

Michael H. Morris, Joel Robichaud and Laura Tausky, for the respondent, Attorney General of Canada;

Michael A. James and Christina Maheux, for the respondent, Canadian Nuclear Safety Commission;

John Laskin, Alexander Smith and James Gotowiec, for the respondent, Ontario Power Generation.

Solicitors of Record:

Ecojustice, Centre of Green Cities, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondents, Attorney General of Canada, Minister of the Environment, Minister of Fisheries and Oceans, and Minister of Transport;

Canadian Nuclear Safety Commission, Legal Services, Ottawa, Ontario, for the respondent, Canadian Nuclear Safety Commission;

Torys LLP, Toronto, Ontario, for the respondent, Ontario Power Generation.

These applications were heard at Toronto, Ontario, on November 12-13, 2013, before Russell, J., of the Federal Court, who delivered the following reasons for judgment on May 14, 2014.