Friends of the Island Inc. v. Canada (Minister of Public Works) et al., (1993) 65 F.T.R. 180 (TD)

• Judge: Cullen, J.
• Court: Federal Court (Canada)
• Case Date: August 12, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 65 F.T.R. 180 (TD)

Island Inc. v. Can. (1993), 65 F.T.R. 180 (TD)

MLB headnote and full text

Friends of the Island Inc. (applicant) v. Minister of Public Works, Minister of Transport, Minister of the Environment, Strait Crossing Inc. and Strait Crossing Development Corp. (respondents) and The Attorney General for Prince Edward Island and The Attorney General for New Brunswick (intervenors)

(T-1394-93)

Indexed As: Friends of the Island Inc. v. Canada (Minister of Public Works) et al.

Federal Court of Canada

Trial Division

Cullen, J.

August 12, 1993.

Summary:

The Friends of the Island Inc. applied for prerogative relief respecting decisions made by the federal government and the provincial governments of New Brunswick and Prince Edward Island surrounding the proposed fixed link crossing between Prince Edward Island and the mainland.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 61 F.T.R. 4, allowed the application, and as a remedy (1) ordered the Minister of Public Works to have an assessment undertaken pursuant to s. 12 of the Environmental Assessment and Review Process Guidelines Order respecting the specific bridge project proposed (the SCI proposal) before irrevocable decisions were made; and (2) declared that discontinuance of the ferry service, in the absence of a constitutional amendment, would breach the Terms of Union (P.E.I.).

SCI and the Minister of Public Works immediately took steps to comply with the court's order. The Minister of Public Works then decided that the potentially adverse environmental effects that might be caused by the SCI proposal were insignificant or mitigable with known technology and the project could proceed. This decision prompted a second application by the Friends for prerogative relief against the federal government and the companies behind the SCI proposal. The Friends also applied for a declaration that any agreement entered into by the federal government and the respondent SCI companies for construc­tion of the bridge or charging tolls for use of the bridge was unconstitutional.

The Federal Court of Canada, Trial Divi­sion, dismissed the Friends' application.

Constitutional Law - Topic 28

Raising constitutional issues - Status of party to raise constitutional issue - The Federal Court of Canada, Trial Division, previously declared that discontinuance of the Prince Edward Island ferry service, without a constitutional amendment, would breach the Terms of Union (P.E.I.) - P.E.I. passed the necessary resolution to amend the Terms of the Union, but the federal House of Commons had not yet done so - The Friends of the Island Inc. argued that the federal government could not enter into a contract with SCI (the builders of the proposed bridge) before the constitutional amendment was passed by the federal Parliament - The Federal Court of Canada, Trial Division, held that the Friends had standing to raise the constitutional issue and that the Friend's argument was not premature - See paragraphs 208 to 232.

Constitutional Law - Topic 2108

Amendment of Constitution Act and other constitutional documents - When amend­ment required - Timing of amendment - The Federal Court of Canada, Trial Divi­sion, previously declared that discon­tinuance of the Prince Edward Island ferry service, without a constitutional amend­ment, would breach the Terms of Union (P.E.I.) - P.E.I. passed the necessary reso­lution to amend the Terms of the Union, but the federal Parliament had not passed a resolution - The Friends of the Island Inc. argued that the Parliament could not contract with builders of the fixed link bridge before the constitutional amendment was finalized - The Federal Court of Canada, Trial Division, held that the con­tract could be executed before the amend­ment was passed, if the agreement con­tained an undertaking to amend the Con­stitution prior to discontinuance of the ferry service - See paragraphs 208 to 232.

Crown - Topic 1008

Contracts with Crown - Contracts v. Con­stitution - [See Constitutional Law - Topic 2108 ].

Crown - Topic 2066

Crown undertakings - Between Canada and provinces - To maintain ferry services - [See Constitutional Law - Topic 2108 ].

Pollution Control - Topic 1842.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Mitigable with known technology - Under a court order Public Works Canada carried out a specific envi­ronmental evaluation of the proposed bridge joining Prince Edward Island and the mainland (Guidelines Order, s. 12) - The Minister decided that the potentially adverse environmental effects of the bridge were insignificant or mitigable with known technology and the project would proceed - The Federal Court of Canada, Trial Division, refused to set aside the Minister's decision, where, inter alia, s. 12 of the Guidelines Order was complied with, there was no evidence of bias or reasonable apprehension of bias, and there was no misunderstanding or misuse of the mitiga­tion with known technology requirement - See paragraphs 1 to 235.

Pollution Control - Topic 1851

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Initial assessment by initiating department - Evaluation of spe­cific project - Sufficiency of - [See Pol­lution Control - Topic 1842.1 ].

Practice - Topic 221

Persons who can sue and be sued - Public interest standing - [See Constitutional Law - Topic 28 ].

Cases Noticed:

Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; 132 N.R. 321; 3 Admin. L.R.(2d) 1; [1992] 2 W.W.R. 193, refd to. [para. 36].

Canadian Wildlife Federation Inc. et al. v. Canada (Minister of the Environment) and Saskatchewan Water Corp. (1989), 31 F.T.R. 1; 4 C.E.L.R.(N.S.) 201 (T.D.), affd. 121 N.R. 385; 6 C.E.L.R.(N.S.) 89 (F.C.A.), refd to. [paras. 40, 46].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.) (1992), 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271; 4 Admin. L.R.(2d) 121 (S.C.C.), refd to. [para. 48].

Committee for Justice and Liberty Foun­dation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 49].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1992] 3 F.C. 42; 53 F.T.R. 300 (T.D.), refd to. [para. 88].

Cantwell et al. v. Canada (Minister of the Environment) et al. (1991), 41 F.T.R. 18; 6 C.E.L.R.(N.S.) 16 (T.D.), refd to. [para. 88].

Friends of the Island Inc. v. Canada (Min­ister of Public Works) et al. (1993), 61 F.T.R. 4 (T.D.), refd to. [para. 88].

Québec (Procureur général) v. Office na­tional de l'énergie, [1991] 3 F.C. 443; 132 N.R. 214 (F.C.A.), refd to. [para. 169].

Consumers' Association of Canada et al. v. Hydro Electric Power Commission (Ont.) et al. (No. 1), [1974] 1 F.C. 453; 2 N.R. 467 (F.C.A.), refd to. [para. 170].

Commonwealth, The v. Colonial Combing, Spinning and Weaving Co. (1922), 31 C.L.R. 421 (Aust. H.C.), refd to. [para. 212].

Commonwealth, The v. Australian Com­monwealth Shipping Board (1926), 39 C.L.R. 1 (Aust. H.C.), refd to. [para. 212].

P.J. Magennis Pty. v. Commonwealth, The, [1949] A.D.C.L.R. 382 (Aust. H.C.), refd to. [para. 212].

Statutes Noticed:

Constitution Act, 1982, sect. 43 [para. 31]; sect. 52 [paras. 210, 211].

Department of the Environment Act - see Environment Act, Department of the.

Environment Act, Department of the, Orders (Can.), Environmental Assess­ment and Review Process Guidelines Order, SOR/84-467, sect. 3 [paras. 45, 194]; sect. 4 [paras. 105, 194]; sect. 4(2) [para. 105]; sect. 4(6) [para. 194]; sect. 5 [paras. 104, 194]; sect. 8 [para. 104]; sect. 10 [paras. 85, 103, 161]; sect. 10(1) [paras. 7, 98]; sect. 12 [para. 1 et seq.]; sect. 12(b) [para. 23]; sect. 12(c) [para. 7 et seq.]; sect. 12(d) [para. 23]; sect. 12(e) [para. 23 et seq.]; sect. 13 [paras. 20, 23, 118]; sect. 14 [para. 85 et seq.]; sect. 15 [paras. 5, 149]; sect. 19 [paras. 100, 190]; sect. 20, sect. 21, sect. 22 [para. 23]; sect. 27, sect. 28 [para. 25]; sect. 33 [para. 104].

Environmental Assessment and Review Process Guidelines Order - see Environ­ment Act, Department of the, Orders (Can.).

National Energy Board Act Regulations (Can.), National Energy Board Part VI Regulations, C.R.C. 1978, c. 1056, sect. 6(1), sect. 6(2)(z) [para. 169].

Navigable Waters Protection Act, R.S.C. 1985, c. N-22, generally [paras. 14, 183, 194].

Northumberland Strait Crossing Act, S.C. 1993, generally [para. 209].

Terms of the Union (P.E.I.), generally [para. 1 et seq.].

Authors and Works Noticed:

Campbell, Enid, Commonwealth Contract (1970), 44 Aust. L.J. 14, generally [para. 212].

Charlottetown Guardian (Newspaper)(March 24 and April 2, 1993) [para. 53].

Cotton, R. and Edmond, D.P., Environ­ment Rights in Canada: Impact Assess­ment (1981), pp. 245 [para. 37]; 254 [paras. 43, 60].

Hogg, Peter W., Liability of the Crown (2nd Ed. 1989), p. 166 [para. 224].

Counsel:

Mark J. Freiman and William C. McDow­ell, for Friends of the Island Inc.;

Brian Evernden, for Minister of Public Works, Minister of Transport and Minis­ter of the Environment;

John I. Laskin, Sandra A. Forbes and Douglas G. Hatch, for Strait Crossing Inc. and Strait Crossing Development Corp.;

Roger Langille, for Attorney General of Prince Edward Island;

Paul Blanchet, for Attorney General of New Brunswick.

Solicitors of Record:

McCarthy, Tétrault, Toronto, Ontario, for the applicant;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondents, Minister of Public Works, Minister of Transport and Minister of the Environment;

Davies Ward & Beck, Toronto, Ontario, for the respondents, Strait Crossing Inc. and Strait Crossing Development Corp.;

Department of Provincial Affairs & Attor­ney General for Province of Prince Edward Island, for the intervenor, Attor­ney General for the Province of Prince Edward Island;

Legal Services Branch Office of the Attor­ney General for the Province of New Brunswick, for the intervenor, Attorney General for the Province of New Bruns­wick.

This case was heard in Ottawa, Ontario, on July 13-16, 1993, before Cullen, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on August 12, 1993.