Federal Court Decisions

     T-2457-96

Between:

     THE FRIENDS OF THE WEST COUNTRY ASSOCIATION,

     Applicant,

     - and -

     THE MINISTER OF FISHERIES AND OCEANS and

     THE ATTORNEY GENERAL OF CANADA,

     Respondents.

     REASONS FOR ORDER

Muldoon, J.

     The applicant brings this motion pursuant to rule 1612 of the Federal Court Rules, C.R.C 1978, Chap. 663 (sometimes the rule, or rules), to compel the respondent to produce certain documents in the respondent's possession. This motion was heard concurrently with T-1893-96, Friends of West Country Association v. Minister of Fisheries and Oceans, Director, Marine Programs, Canadian Coast Guard, and the Attorney General of Canada. The Attorney-General shall be struck from the style of cause (see p. 96 of the transcript) because he is not a party adverse in interest to the application as required by rule 1602(3) and was therefore not properly named as a respondent, as stated in the reasons issued contemporaneously in file T-1893-96.

     The facts underlying this motion are related to those in T-1893-96. Sunpine Forest Products Ltd. (Sunpine), a logging company, proposed to build a road to access certain forest areas on the eastern slope of the Rocky Mountains situated west of the town of Rocky Mountain House, Alberta. The applicant notified the Minister of Fisheries and Oceans (Minister) of Sunpine's intentions on June 7, 1995 (affidavit of Dr. Martha Kostuch, paragraph 3). The Minister replied to the applicant, stating that the Department of Fisheries and Oceans (DFO) had requested information from Sunpine and was reviewing that information.

     The proposed road will cross a number of streams. Some are fish bearing, some are not, and two are considered navigable waterways within the meaning of section 2 of the Navigable Waters Protection Act, R.S.C. 1985, Chap. N-22 (NWPA). The proposal engages, or has attracted questions about the engagement of the provisions several statutes which, albeit in quilted fashion, operate to ensure that the project is considered and approved, if at all, in terms of environmental impact.

     Sunpine applied to the Minister for approval pursuant to subsection 5(1) of the NWPA to construct two bridges spanning the Ram River and Prairie Creek, which are necessary for the road, in December, 1995. Subsection 5(1) of the NWPA runs:

5. (1) No work shall be built or placed in, on, over, under, through or across any navigable water unless

(a) the work and the site and plans thereof have been approved by the Minister, on such terms and conditions as the Minister deems fit, prior to commencement of construction;

(b) the construction of the work is commenced within six months and completed within three years after the approval referred to in paragraph (a) or within such further period as the Minister may fix; and

(c) the work is built, placed and maintained in accordance with the plans, the regulations and the terms and conditions set out in the approval referred to in paragraph (a).

The application under subsection 5(1) of the NWPA triggered an assessment under paragraph 5(1)(d) of the Canadian Environmental Assessment Act, R.S.C. 1985 Chap. C-37 (CEAA) for Sunpine's proposal for the Ram River bridge and the Prairie Creek bridge. Paragraph 5(1)(d) provides:

5(1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority

***

(d) under a provision prescribed pursuant to paragraph 59(f), issues a permit or license, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.

     The process triggered by Sunpine's application under the NWPA is the subject of the companion motion, T-1893-96. The provision at the heart of the present motion is found in the Fisheries Act, R.S.C. 1985, Chap. F-14, yet another statutory regime related to the Sunpine's proposal, which is similar to the NWPA inasmuch as it may potentially trigger requirements for assessment under paragraph 5(1)(d) of the CEAA. The provisions of relevance under theFisheries Act are sections 35 and 37, which run:

35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.

37. (1) Where a person carries on or proposes to carry on any work or undertaking that results or is likely to result in the alteration, disruption or destruction of fish habitat, or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a), provide the Minister with such plans, specifications, studies, procedures, schedules, analyses, samples or other information relating to the work or undertaking and with such analyses, samples, evaluations, studies or other information relating to the water, place or fish habitat that is or is likely to be affected by the work or undertaking as will enable the Minister to determine

        

(a) whether the work or undertaking results or is likely to result in any alteration, disruption or destruction of fish habitat that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that result or mitigate the effects thereof; or

(b) whether there is or is likely to be a deposit of a deleterious substance by reason of the work or undertaking that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate the effects thereof.

(2) If, after reviewing any material or information provided under subsection (1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, the Minister or a person designated by the Minister may, by order, subject to regulations made pursuant to paragraph (3)(b), or, if there are no such regulations in force, with the approval of the Governor in Council,

    

(a) require such modifications or additions to the work or undertaking or such modifications to any plans, specifications, procedures or schedules relating thereto as the Minister or a person designated by the Minister considers necessary in the circumstances, or

(b) restrict the operation of the work or undertaking, and, with the approval of the Governor in Council in any case, direct the closing of the work or undertaking for such period as the Minister or a person designated by the Minister considers necessary in the circumstances.

     Parliament has included subsections 35(2) and 37(2) of the Fisheries Act in the Law List Regulations, SOR/94-636, Items 6(e) and 6(f), as provisions requiring an environment assessment pursuant to paragraph 5(1)(d) of the environment law. Therefore, where a party seeks the authorization of the Minister pursuant to subsections 35(2) or 37(2) of the Fisheries Act, the Minister is required under paragraph 5(1)(d) of the CEAA to conduct an assessment before authorization is granted.

     A policy has been developed internally by the DFO in an apparent attempt to streamline the process of identifying proposals that will result in a contravention of subsection 35(1) of the Fisheries Act. Before the commencement of the authorization process mandated by subsections 35(2) and 37(2) of the Fisheries Act, the DFO undertakes a fact finding process to determine whether there will be any harmful alteration or destruction of fish habitat. If the result of the fact finding is that harmful effects will not occur, the DFO may, according to its own non-statutory policy, issue a non-statutory "letter of advice", which informs the party that neither subsection 35(2) nor subsection 37(2) of the Fisheries Act applies.

     Where the result of the fact finding is that even with mitigation measures there will be a harmful alteration or disruption of fish habitat, the DFO advises the proponent of the project to apply for a subsection 35(2) authorization. Only once the subsection 35(2) authorization has been applied for is an environment law assessment triggered. The assessment must be undertaken before any authorization pursuant to subsection 35(2) of the Fisheries Act may be issued.

     With respect to Sunpine's proposal, the DFO, Habitat Management Division, conducted a "fact finding" process in accordance with their policy. The result of the fact finding was that there would be no harmful alterations or disruptions of fish habitat. As a result the DFO issued two non-statutory letters of advice to Sunpine on September 17, 1996 which stated that if certain mitigation measures were taken, the proposal would not contravene subsection 35(1) of the Fisheries Act (affidavit of Martha Kostuch, exhibit 29).

     The applicant requested disclosure of the materials considered by the DFO, Habitat Management Division, when it conducted the fact finding, including Sunpine's proposal, and certified copies of the letters of advice issued by the DFO to Sunpine, pursuant to rule 1612 of the Federal Court Rules. Rule 1612 states:

Rule 1612. (1) A party who wishes to rely on material that is in the possession of the federal board, commission or other tribunal and not in the party's possession shall file in the Registry and serve on the federal board, commission or other tribunal a written request for a certified copy of the material.

(2) An applicant's request may be included in the notice of motion.

(3) A copy of the request shall be served on the other parties.

    

(4) The request shall specify the particular material in the possession of the federal board, commission or other tribunal and the material must be relevant to the application for judicial review.

     [emphasis added]     

                                

     The respondent refused the applicant's requests pursuant to rule 1613 in a letter to the registrar dated December 16, 1996. The letter was copied to the applicant. (The letter actually referred to the proceedings in T-1893-96, but on January 8, 1997, the respondent clarified that the letter was in regard to the present proceeding before this Court). The letter's sole paragraph reads:

In connection with the letters of advice that are the subject of this judicial review application, there is no federal board, commission or other tribunal and no decision. Therefore, there are no documents to certify and tender pursuant to Rule 1612 of the Federal Court rules.

     The approach of the respondent in refusing the applicant's request raises the issue of whether the letters of advice issued by the DFO to Sunpine are decisions made by a federal board, commission or tribunal within the meaning of section 18.1 of the Federal Court Act.

     This a troublesome issue to appear full-fledged before the Court in this motion, since this motion deals with a rule 1612 request. It seems that the respondent is raising an argument for non-disclosure under rule 1613 which attempts to force the resolution of an issue which is in contention between the parties in the proceedings on the applicant's originating motion.

     In that proceeding, the applicant seeks a declaration that the letters of advice constitute authorizations under subsections 35(2) and 37(2) of the Fisheries Act, or alternatively, a declaration that the letters were ultra vires the Minister's jurisdiction. The implication of the letters constituting authorizations is that the Minister would be required under paragraph 5(1)(d) of the CEAA to conduct an environmental assessment before issuing the authorizations. Thus, the applicant argues in the end result for the Minister to be responsible for a wider assessment than that conducted with respect to the part of Sunpine's proposal dealing with the bridges over the Ram River and Prairie Creek triggered by subsection 5(2) of the NWPA.

     The respondent Minister and/or his subordinates have gone to some length to attempt to rationalize a distinction between their policy of issuing letters of advice and the applicant's rule 1612 request. In the words of counsel for the respondent at p. 111 of the transcript:

Now, the Act doesn't expressly provide for this policy nor Letters of Advice, but it doesn't prohibit it either. And in our submission this is pure administrative fact-finding process which the department in its day-to-day exercise of its authority is able to devise in order to assist it with its workload. And where the process that is involved in accordance with this departmental policy does not meet the test of exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament, or by or under an order made pursuant to the prerogative of the Crown, then whoever is doing this fact-finding, it isn't the federal board, commission or other tribunal.

     Apparently, it is the respondent's submission that a policy which the DFO has developed internally without any explicit statutory foundation to do so will in some way relieve the Minister of statutory obligations or limit the obligations of the Minister vis a vis subsections 35(2) and 37(2) of the Fisheries Act and, in turn, paragraph 5(1)(d) of the CEAA. It also appears that a further "benefit" which derives from this informal approach to the statutory mandate and obligations placed upon the DFO by the Fisheries Act and the CEAA is that the DFO does not need to disclose materials in relation to a judicial review application related to the letters of advice since, in accordance with the policy, the letters of advice (although they do inform a party that subsection 5(1) of the Fisheries Act will apply to them or not) do not constitute a decision within the meaning of rule 1612. This is a transparent bureaucratic attempt at sheer evasion of binding statutory imperatives. It is neither cute nor smart, and this Court is not duped by it. By making "policy" not contemplated by the statutes, the DFO types simply cannot immunize the Minister and DFO from judicial review, nor circumvent the environment laws which they decline to obey.

     Perhaps, if so inclined, the respondent will want to make out their argument once again at the main, substantive judicial review hearing as to the legal merits and effects of their internal policies. It is clear that one legal effect the DFO's internal policy cannot have is to bind this Court with respect to a rule 1612 application, so that this Court must deny the applicant disclosure of the documents it seeks because the issue it wants to contend at the main hearing would have already been resolved as a matter of policy by the DFO.

     It is this Court's view that the policy of the DFO with respect to letters of advice, and the purported legal effects of the policy i.e. that the letters are not decisions made by a federal board, commission or tribunal, have no bearing on the issue under rule 1612 of whether the respondent should disclose materials relevant to the main action to the applicant. This, however, seems to have been the sole reason for which the respondent has argued for non-disclosure.

     Therefore, there exists no valid reason for the respondent's objection the applicant's rule 1612 request. There is an established line of jurisprudence regarding the rule. Rule 1612 allows an applicant to request that a tribunal provide a certified copy of material in the tribunal's possession, of which the applicant does not have possession. The applicant must specify the particular material and that material must be relevant. The tests under this section are possession and relevance. Rule 1613(2) allows the federal board, commission or tribunal served with a rule 1612 request to object to the request. A reply to the requesting party must be made in writing. The respondent's objections here do not raise any issue as to relevance or possession. Rule 1613(4) allows a judge to order a certified copy of all or part of the material be forwarded to the requesting party and to the registry. It is not a "fishing expedition" (Pfizer Can. Inc. v. Nu-Pharm Inc. (1993), 72 F.T.R. 103 at p. 109).

     The relevance of each document must be weighed by the Court pursuant to rule 1613(4). "Relevance" under rule 1612 has been given some judicial consideration. In Quebec Ports Terminals Inc. v. Canada (Labour Relations Board) (1993), 164 N.R. 60, Mr. Justice Décary found that

The fact that the adverse party is not entitled to receive a copy of the material in question,even for he purpose of preparing an objection to it being obtained, also means that it can be presumed that it is aware of the existence and nature of the material in question, which it knows to be in the possession of the tribunal and which it may have in its own possession.

     ***

In short, rules 1612 and 1613 do not permit a party to ask the tribunal to prepare new documents or to do research in existing documents, any more than they permit a party to obtain documents from the tribunal which are in no way related to the impugned decision. (at p. 67)

According to Justice Décary, the tribunal does not have to do anything other than hand over relevant material in their possession.

     In Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (leave to appeal dismissed by the Supreme Court of Canada, file No. 24809, on December 5, 1995), the scope of relevance was considered. Mr. Justice Pratte stated at p. 460:

A document is relevant to an application for judicial review if it may affect the decision that the court will make on he application. As the decision of the court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.

This is an objective standard of relevance which operates whether or not the Minister initially considered or perused the documents in his, or the DFO's hands. The applicant is not asking for the entire DFO archives. In oral argument counsel for the applicant stated that the documents sought were the "very documents that Sunpine submitted to DFO for this purpose and that were assessed by the departmental officer in coming to the decision to issue the letter of advice." (transcript, p. 127). Such accords with the applicant's rule 1612 request, which reads

1. All documents concerning Sunpine Forest Products Ltd.'s construction or proposed construction of its mainline road and associated bridges, including the Prairie Creek and Ram River Bridges ("Sunpine's Proposal"), and all documents concerning the potential or actual impacts of Sunpine's Proposal on fish habitat or the environment, including not [sic] limited

to: (a) all plans, proposals, reports, studies, correspondence, comments or other documents received from Sunpine, government officials or any other person; (b) all letters, memoranda, faces, electronic communications, and other correspondence from officials in the Department of Fisheries and Oceans; (c) any notes or memoranda regarding any meetings, conversations or inspections; and (d) any photographs, videotapes or other materials.

The documents the applicant requests are related to grounds 4, 5 and 6 of the originating notice of motion. Those grounds read:

4. The 'letters of advice' issued by the Minister, or his delegate, regarding Sunpine's Proposal constitute in law 'authorizations' under section 35(2) of the Fisheries Act or 'orders' under section 37(2) of the Fisheries Act, and before issuing such authorizations or orders the Minister was required to comply with the Canadian Environmental Assessment Act. By failing to do so, the Minister erred in law and acted without jurisdiction.

5. In the alternative, the Minister or his delegate erred in law and acted without jurisdiction in issuing the 'letters of advice' regarding Sunpine' Proposal. Parliament has specifically prescribed, in sections 34 and 37 of the Fisheries Act, the mechanisms to be used for authorizing and regulating activities with the potential to affect fish habitat. The Minister or his delegate erred in law and acted without jurisdiction is [sic] deciding he could substitute a 'letter of advice' for an 'authorization' under section 35(2) of the Fisheries Act and thereby avoid the requirement to conduct an environmental assessment under the Canadian Environmental Assessment Act.

    

6. The Minister or his delegate erred in law and acted without jurisdiction in deciding that section 35 of the Fisheries Act did not apply to Sunpine's Proposal,and in thereby failing to comply with the requirements of the Canadian Environmental Assessment Act.

     The DFO must produce all the relevant documents enunciated in the request, unless privilege be claimed which would seem highly unlikely, and, in fact, has not been claimed. The second request reads:

2. All letters of advice, authorizations, orders or other correspondence from the Department of Fisheries and Oceans to Sunpine concerning Sunpine's Proposal."

     All of these are clearly relevant to all grounds of the originating notice of motion and must be produced. The Court accepts that it would be impossible for the applicant to articulate each individual document in the category of the request, because the result of the Department's process is that no one, including the applicant, has seen these documents except for Sunpine and DFO officials.

     It is "too bad" to have put the Minister and the DFO to "all this work", but it is the lawful will of the law-makers which this Court will enforce.

     Further, the Court orders that the policy, or policy directives, which the Department is using be disclosed. This was consented to by counsel for the respondent (transcript, p. 122).

     Accordingly, the applicant's motion is granted.

    

Judge

Ottawa, Ontario

May 7, 1997