Federal Court Decisions

     T-1893-96

Between:

     THE FRIENDS OF THE WEST COUNTRY ASSOCIATION,

     Applicant,

     - and -

     THE MINISTER OF FISHERIES AND OCEANS,

     DIRECTOR, MARINE PROGRAMS, CANADIAN COAST GUARD and

     THE ATTORNEY GENERAL OF CANADA,

     Respondents.

     REASONS FOR ORDER

Muldoon, J.

     This is a motion brought by the applicant pursuant to this Court's rule 1612, to compel the respondents to produce certain documents in the respondents' possession. This motion was heard concurrently with T-2457-96, Friends of the West Association v. Minister of Fisheries and Oceans, Director, Marine Programs, Canadian Coast Guard, and the Attorney General of Canada. The matter in regard to which this motion is brought concerns the decisions of the Acting Director of Marine Programs, Canadian Coast Guard, made August 16, 1996 pursuant to paragraph 20(1)(a) of the Canadian Environmental Assessment Act, S.C. 1992, Chap. C-37 (CEAA) and the approvals granted to Sunpine Forest Products Ltd. (Sunpine) issued by the Acting Regional Director for the Central & Arctic Region, Canadian Coast Guard for the Minister of Fisheries and Oceans, made August 17, 1996 pursuant to paragraph 5(1)(a) of the Navigable Waters Protection Act, R.S.C. 1985, Chap. N-22 (NWPA). The impugned decisions approved a screening environmental assessment report regarding the building of a road and two bridges by Sunpine.

     Sunpine is a logging company which proposes to build a road to access certain forest areas on the eastern slope of the Rocky Mountains 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 Martha Kostuch, paragraph 14). The Minister replied that the Department of Fisheries and Oceans (DFO) had requested information from Sunpine and was reviewing that information.

     Sunpine applied to the Minister for approval pursuant to paragraph 5(1)(a) of the NWPA to construct two bridges spanning the Ram River and Prairie Creek, which are both navigable waterways, in December, 1995. The waterways under scrutiny in companion file T-2457-96 were not navigable but fish bearing streams and are alleged by the applicant to have engaged a different statute, the Fisheries Act, R.S.C. 1985, Chap. F-14.

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 paragraph 5(1)(a) of the NWPA, by virtue of its presence on the Law List Regulations, SOR/94-636, triggered an assessment under paragraph 5(1)(d) of the CEAA for Sunpine's proposal for the Ram River bridge and the Prairie Creek bridge. Paragraphs 59(f) and 5(1)(d) of the CEAA provides that the listed statutory provisions in the Law List are triggers for an assessment under the CEAA. Paragraph 5(1)(d) of the CEAA states that an environmental assessment of a project is required before a federal authority "under a provision prescribed pursuant to paragraph 59(f), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling a project to be carried out in whole or in part".

     Under the CEAA regime, there may be several federal authorities which fall under the requirements of subsection 5(1) of the CEAA with respect to a given project. A federal authority is charged with the responsibility of conducting the environmental assessment and ensuring compliance with the CEAA when, under section 11, it is the "responsible authority". Most of the statutory provisions in the CEAA rely on the responsible authority. Section 2 of the CEAA defines the responsible authority as "in relation to a project, means a federal authority that is required pursuant to subsection 11(1) to ensure that an environmental assessment of the project is conducted." Subsection 11(1) states:

where an environmental assessment of a project is required, the federal authority referred to in section 5 in relation to the project shall ensure that the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decision are made, and shall be referred to in this Act as the responsible authority in relation to the project.

Paragraph 5(1)(d) of the CEAA states that the federal authority is the person who would authorize a project to be carried out under one of the provisions prescribed by paragraph 59(f) of the Law List. As noted above, paragraph 5(1)(a) of the NWPA is included in the Law List. Therefore, in this case the Minister referred to in paragraph 5(1)(a) of the NWPA is defined in section 2 of that act as the Minister of Transport. By order-in-council SI/95-46 (P.C. 1995-527) made March 28, 1995 and effective on April 1 of that year, the power over the Canadian Coast Guard was transferred from the Minister of Transport to the Minister of Fisheries and Oceans pursuant to the Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, Chap. P-24, (the PSRTDA). As will be discussed later herein, this has presented the Court with a considerable problem.

     The Minister of Fisheries and Oceans, the Honourable Fred Mifflin, delegated the conduct of the assessment to the Acting Director of Marine Programs, Canadian Coast Guard (Acting Director), (affidavit of Gary K. Running, exhibit A). This was apparently done in compliance with subsection 17(1) of the CEAA. Section 17 allows the Minister to delegate. That part reads:

17.(1) A responsible authority may delegate to any person, body or jurisdiction within the meaning of subsection 12(5) any part of the screening or comprehensive study of a project or the preparation of the screening report or comprehensive study report, and may delegate any part of the design and implementation of a follow-up program, but shall not delegate the duty to take a course of action pursuant to subsection 20(1) or 37(1).

(2) For greater certainty, a responsible authority shall not take a course of action pursuant to subsection 20(1) or 37(1) unless it is satisfied that any duty or function delegated pursuant to subsection (1) has been carried out in accordance with this Act and the regulations.

     The Acting Director directed a "screening" which is provided for in section 18 of the CEAA:

18.(1) Where a project is not described in the comprehensive study list or the exclusion list, the responsible authority shall ensure that

(a) a screening of the project is conducted; and

(b) a screening report is prepared.

Screening requirements are identified in subsection 16(1):

16.(1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:

(a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;

(b) the significance of the effects referred to in paragraph (a);

(c) comments from the public that are received in accordance with this Act and the regulations;

(d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and

(e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority, or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered.

Subsection 16(3) provides that the responsible authority must determine the scope of the assessment. It reads, thus:

(3) The scope of the factors to be taken into consideration pursuant to paragraph (1)(a), (b) and (d) and (2)(b), (c) and (d) shall be determined

(a) by the responsible authority; or

(b) where a project is referred to a mediator or a review panel, by the Minister, after consulting the responsible authority, when fixing the terms of reference of the mediation or review panel.

     The scope of the assessment, as determined by responsible authority under subsection 15(1) of the CEAA, for the Ram River Bridge project included:

the construction and maintenance of a two lane dual span bridge over the Ram River, including associated approaches and related works, storage areas or other undertakings directly associated with the construction of the bridge. The project involves preparation of the construction site, construction of a centre pier, abutments and the bridge structure. (Canadian Coast Guard Screening Environmental Assessment Report for the Ram River Bridge, July 8, 1996, Tribunal Record).

The scope for the Prairie Creek bridge project included:

the construction and maintenance of a 2 lane single span bridge over Prairie Creek, including associated approaches and related works, storage areas or other undertakings directly associated with the construction of these bridges. The project involves preparation of the construction site, abutments and the bridge structure. (Canadian Coast Guard Screening Environmental Assessment Report for the Prairie Creek Bridge, July 8, 1996, Tribunal Record).

     After a screening is made and a screening report is complete, the responsible authority must decide a course of action pursuant to subsection 20(1). Subsection 20(1) sets out three possible courses of action, as follows:

20.(1) The responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the screening report and any comments filed pursuant to subsection 18(3):

(a) subject to subparagraph (c)(iii), where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is not likely to cause significant adverse environmental effects, the responsible authority may exercise any power or perform any duty or function that would permit the project to be carried out and shall ensure that any mitigation measures that the responsible authority considers appropriate are implemented;

(b) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances, the responsible authority shall not exercise any power or perform any duty or function conferred on it by or under any Act of Parliament that would permit the project to be carried out in whole or in part; or

(c) where

(i)      it is uncertain whether the project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, is likely to cause significant adverse environmental effects,

(ii)      the project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, is likely to cause significant adverse environmental effects and paragraph (b) does not apply, or

(iii)      public concerns warrant a reference to a mediator or a review panel, the responsible authority shall refer the project to the Minister for a referral to a mediator or a review panel in accordance with section 29.

     These provide three alternatives. If the result of the screening process is that the project under assessment is "not likely to cause significant adverse environmental effects" or those effects can be mitigated, the project may go forward and the responsible authority may take any necessary steps to allow this as provided in the CEAA's paragraph 20(1)(a). In this case, the Minister issued a permit, purportedly pursuant to the NWPA, because the Acting Director issued a positive screening decision.

     Where the result of the screening is that the project is likely to cause "significant adverse environmental effects" which cannot be mitigated and the effects not justified, the responsible authority shall not exercise any power which would enable the project to go ahead (paragraph 20(1)(b)). Where the screening process determines that it is uncertain that the project could have significant adverse environmental effects, the responsible authority shall refer the project to a mediator or review panel under section 29 as provided in paragraph 20(1)(c). Such a referral results in a comprehensive study, i.e., a full-blown environmental assessment.

     As a preliminary matter, the respondents move to strike the Minister of Fisheries and Oceans and the Attorney General of Canada as respondents. With respect to the Attorney General of Canada, there is no evidence to indicate, nor have the parties suggested, that the Attorney General should be named as a federal authority under paragraph 5(1)(b) of the CEAA. Rule 1602(3) states that "any person who is adverse in interest to the applicant in the proceedings before the federal board, commission or other tribunal shall be named as a respondent in the notice of motion." (What of Sunpine?) The Attorney General was not a party to the environmental assessment, and therefore was not adverse in interest to the applicant. Some might consider that the Attorney General is contemplated by paragraph 18(1)(b) of the Federal Court Act to be impleadable, but such appears not to be the practice. Accordingly, the Attorney General is struck as a respondent.

     As for the Minister of Fisheries and Oceans, who seemed to be operating under the impression that he was the responsible authority, he is a proper party because he acted in the belief that he could delegate the assessment and the issuance of authorization under the NWPA to the Coast Guard. The authority to approve the screening process was delegated to the Acting Director. During his oral submission, counsel for the respondents argued that because the Minister delegated the decision making process, he was not involved in the process and is not a party. The problem with this submission is that the CEAA dictates that the Minister cannot shirk his responsibility before the CEAA by delegating the decision making powers. The relevant provision is section 17 of the CEAA, recited above. Subsection 17(2) states that there is an onus on the responsible authority to ensure compliance with the Act before it exercises its discretion. Thus the Minister will not be struck as a respondent because he is a proper respondent solely by virtue of the fact that the decision for which he believed he was responsible is being attacked.

     These facts have left the Court in a conundrum. The Court has to decide whether to order disclosure against the Minister of Fisheries and Oceans. At the time of the assessment the Minister of Fisheries and Oceans did not have and presently still does not have the power to issue approvals under the NWPA or delegate his authority to issue such approvals to the Canadian Coast Guard. The Minister of Fisheries and Oceans will have the authority to do so under the NWPA when Bill C-62 or its successor is enacted in the new, 36th Parliament. That Bill will amend, or would have amended, the definition of "Minister" in the NWPA. What seems to have caused confusion was the transfer of ministerial authority over the Coast Guard from the Minister of Transport to the Minister of Fisheries and Oceans, as noted above.

     In supplementary submissions on this point, the respondents' counsel wrote:

6. The effect of Section 3 of the PSRTDA [cited above] is that when the control and the supervision of the Canadian Coast Guard portion of the public service was transferred from the Minister of Transport to the Minister of Fisheries and Oceans, the Minister of Fisheries and Oceans and the appropriate officers of the Canadian Coast Guard were substituted for and carry out the respective powers and duties that formerly belonged to the Minister of Transport in relation to the Canadian Coast Guard. Thus, since the date the Order in Council under the PSRTDA took effect (April 1, 1995), the Minister of Fisheries and Oceans has been able to exercise the powers and duties that belonged to the Minister of Transport in section 5(1) of the Navigable Waters and Protection Act [sic].

7. Bill C-62 amends, among other things, section 5(1) of the Navigable Waters Protection Act so that the reference to the Minister of Transport is changed to the Minister of Fisheries and Oceans. It is respectfully submitted that this amendment contained in Bill C-62 is a housekeeping measure intended to reflect the change that was effected pursuant to the Order in Council.

This Court does not agree with the respondents' submission that the order-in-council, merely a "housekeeping measure", did or could effect an interim transfer of power. An order-in-council cannot, unless permitted by statute, amend a statute even if it makes the task of administering power easier. The fact that the Minister of Fisheries and Oceans has the power under section 3 of the Public Service Rearrangement and Transfer of Duties Act to "carry out the respective powers that formerly belonged to or were to be carried out by the Minister * * * from whom or which the power, duty, function, control or supervision is so transferred" does not mean that the Minister of Fisheries and Oceans has the power under the NWPA to grant an authorization. The order-in-council did not amend the NWPA. The effect of the order-in-council made pursuant to the Public Service Rearrangement and Transfer of Duties Act is that the Minister of Fisheries and Oceans has all powers formerly within the purview of the Minister of Transport to administer the Coast Guard. The NWPA stipulates that the Minister of Transport, not the Minister of Fisheries and Oceans, make the authorizations. The Minister of Transport can delegate this to anybody, and not necessarily to the Coast Guard. (So, too, can the Minister of Fisheries and Oceans but only after the Act is amended, if ever.) How the Minister of Fisheries and Oceans was ever involved in the first place remains a mystery.

     This entire process has been flawed from its inception. Simply put, the Minister for the purposes of the NWPA, who issues authorizations under that Act and who is the responsible authority for the CEAA, was the Minister of Transport and will be until Bill C-62 be enacted, in the 36th Parliament, or sometime thereafter, if ever.

     In response to the Court's question of what should be done when it was discovered that the Minister who issued the approvals under the NWPA was not the one contemplated by that Act, both parties agreed that this issue (and the effects thereof) should be decided at the main action because the issue is not before this Court. The parties agreed that the only question which should be decided on this motion is whether there should be more documents disclosed. After some consideration, the Court agrees. It is unclear what the effect of invalidating the decision at this juncture would be, or if this Court has the power to do so. The parties should have the opportunity to make submissions on whether the Minister of Transport can simply adopt the Coast Guard's report or whether a new screening assessment has to be done. When the validity of an administrative decision is challenged on the grounds that it is ultra vires, it is the Court at the judicial review hearing which will decide whether this is in fact so. The effect of such a fundamental procedural defect is beyond the issue now before the Court, and while not deciding the issue, this Court cannot be blind to its existence. It does seem rather awkward to be adjudicating these issues when one side, the respondents, ought apparently not to be a parties and when the respondents' purported decision is apparently a legal nullity. This is the conundrum earlier mentioned. Sunpine ought surely to be warned that its position could be in present, profound jeopardy.

     This said, should the respondents disclose and certify the documents which the applicant requests? Rule 1612 reads:

(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]

     Several submissions were made regarding what the respondents must disclose. The respondents, in counsel's written brief, argue that once the Acting Director's decision was made - a reviewable decision - the responsible authority may exercise any power or duty to permit the project to proceed. It submits that this is a purely discretionary decision which is not subject to judicial review, and as a result the Minister is not a proper party. Sensibly, this was not pursued in oral argument because abuse of discretion has always been subject to judicial review. One may note, inter alia, Padfield v. Minister of Agriculture, [1968] All.E.R. 694 at 702 and the classic Canadian case, Roncarelli v. Duplessis, [1959] S.C.R. 121 at 141.

     More interesting is the respondents' submission that the documents which ought to be disclosed should only be those which were before the Acting Director when he made his decision. In counsel's words at pp. 66-67 of the transcript:

Now we say that to the extent that any of those classes of documents which were requested in the Rule 1612 application comply with the provisions of the rule and were actually before the tribunal, Captain McCann, and considered.

This would exclude any documents relevant to the proposal in the Minister's possession which were not considered by the Acting Director.

     The respondents rely on Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (F.C/A) (leave to appeal dismissed by the Supreme Court of Canada in file No. 24809 on December 5, 1995). In Pathak the issue before the Court was whether the Canadian Human Rights Commission had to disclose the documents which were before the investigator but not the Commission. Mr. Justice MacGuigan found that

only the report of the investigator and the representations of the parties are necessary matter for the Commission's decision. Anything else is in the discretion of the Commission. If the Commission, therefore, elects not to call for some document, that document cannot be said to be before it in its decision-making phase, as opposed to its investigative stage. It is therefore not subject to production as a document relied upon by the Commission in its decision, although it may well have been relied upon by the investigator in his report. These are two distinct moments of the Commission's life, distinct moments not to be obliterated by a legal fiction. (p. 464)

The respondents' submission is that the case at bar is analogous to a Human Rights Commission scenario because subsection 20(1) of the CEAA states: "The responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the screening report and any comments filed pursuant to subsection 18(3)". That submission must be rejected by virtue of subsection 17(2) of the CEAA (recited above) which states that no action under subsection 20(1) can be taken unless the responsible authority is satisfied that the delegated duty has been carried out in accordance with the CEAA. There is no distinct investigation and decision-making stage, because subsection 17(2) of the CEAA mandates that the Minister (or other responsible authority) take a supervisor rôle over the investigation, and not merely that of a passive recipient.

     The respondents' next submission is that to allow documents other those considered by the Acting Director would allow a collateral attack on scope. This is not an appropriate defence to a rule 1612 motion. The applicant must be allowed to make its case. If part of its case is that the scope was too restricted, the applicant must have all of the relevant documents which may tend to prove this in order to make out its argument, if it can. To hold otherwise would prejudice the applicant. In Canadian Parks and Wilderness Society v. Superintendent of Banff National Park, (1997), 202 N.R. 132 (the "Sunshine Village" case), Madam Justice Desjardins wrote that "Paragraphs 16(1)(a) and (b), and 16(2)(a), of the Act make it compulsory for a review panel to assess 'cumulative environmental effects' that are likely to result from a project, 'the need for the project' and 'the purpose of the project' " (p.153). In essence, if the subsection 16(1) requirements are not complied with, a reviewable error results. If the issue be compliance with the Act, it is appropriate for judicial review. While it is not for this Court to decide at this stage what is, or is not, an appropriate ground of review for the screening assessment, the Court will say that the respondents will not be prejudiced because they still have the chance to make the defence at the judicial review hearing.

     Further, this case is one which deals with what is, from start to finish, a very public process. Section 55 of the CEAA is a particularly apt vantage point because it creates a repository of assessment-related documents. For every assessment of a project under the CEAA a "public registry" must be maintained. The relevant provisions of section 55 provide:

55. (1) For the purpose of facilitating public access to records relating to environmental assessments, a public registry shall be established and operated in a manner to ensure convenient public access to the registry and in accordance with this Act and the regulations in respect of every project for which an environmental assessment is conducted.

(2) The public registry in respect of a project shall be maintained

(a) by the responsible authority from the commencement of the environmental assessment until      any follow-up program in respect of the project is completed; and

(b) where the project is referred to a mediator or a review panel, by the Agency from the appointment of the mediator or the members of the review panel until the report of the mediator or review panel is submitted to the Minister.

(3) Subject to subsection (4), a public registry shall contain all records produced, collected, or submitted with respect to the environmental assessment of the project, including

(a) any report relating to the assessment;

(b) any comments filed by the public in relation to the assessment;

(c) any records prepared by the responsible authority for the purposes of section 38;

(d) any records produced as the result of the implementation of any follow-up program;

(e) any terms of reference for a mediation or a panel review; and

(f) any documents requiring mitigation measures to be implemented.

(4) A public registry shall contain a record referred to in subsection (3) if the record falls within one of the following categories:

(a) records that have otherwise been made available to the public in carrying out the assessment pursuant to this Act and any additional records that have otherwise been made publicly available;

(b) any record or part of a record that the responsible authority, in the case of a record under its control, or the Minister, in the case of a record under the Agency's control, determines would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record comes under its control, including any record that would be disclosed in the public interest pursuant to subsection 20(6) of that Act; and

(c) any record or part of a record, except a record or part containing third party information, if the responsible authority, in the case of a record under the responsible authority's control, or the Minister, in the case of a record under the Agency's control, believes on reasonable grounds that its disclosure would be in the public interest because it is required in order for the public to participate effectively in the assessment.

(emphasis not in original text)

Subsections 55(5) and (7) set out the exceptions which may be made in regard to public access to documents.

(5) Sections 27, 28 and 44 of the Access to Information Act apply, with such modifications as the circumstances require, to any determination made under paragraph (4)(b) in respect of third party information, and the purpose of section 27 of that Act, any record referred to in paragraph (4)(b) shall be deemed to be a record that the responsible authority or the Minister intends to disclose and, for the purpose of applying that Act, any reference in that Act to the person who requested access shall be disregarded if no person has requested access to the information.

*** *** ***

(7) For the purposes of this section, "third party information" means

(a) trade secrets of a third party;

(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; and

(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

     Only those documents already available to the public or those determined by the Minister which are not required to be disclosed pursuant to an application under the Access to Information Act, S.C. 1980-81-82-83, c. 111 (AIA) are not required to be disclosed. Section 27 of the AIA requires that interested third parties be given notice of a request for information. Third party information is identified under subsection 20(1) of the AIA, which is identical to the definition of third party information in subsection 55(7) of the CEAA. Third party information is the species which pertains to trade secrets, confidential commercial, scientific or technical information, and information whose disclosure could reasonably be expected to result in financial damage as long as the third party treats the information as confidential, or truly, is justified in so treating it.

     In sum, the CEAA requires that the responsible authority shall maintain a public registry for public access, subject to limited exceptions. The registry is public; not private or even cloistered. The language in section 55 is clear: if there is going to be an environmental assessment, there must be a public registry and that registryshall have all documents relevant to the proposal. (One does wonder if the drafters of the CEAA were vying with those of the Income Tax Act to achieve the greater complexity or to discourage Court challenges.)

     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" which "must be relevant to the application for judicial review". The tests under this section are possession and relevance.

     The requirement of possession in this case is fairly clear. The material in question is either in the public registry or should be in the public registry pursuant to subsection 55(4) of the CEAA. It is, as the applicant has pointed out, self evident that the material in question is in the possession of the responsible authority. The language of section 55 is very broad and inclusive. For example, pursuant to paragraph 55(3)(a) "any report relating to an assessment" must be maintained in the public registry; 55(3)(b) "any comments filed by the public" must be maintained. The inclusivity of this language also brings out another self evident feature of the registry, namely that anything contained in the registry is relevant.

     "Relevance" under rule 1612 has been given consideration by the Appeal Division of this Court. In Quebec Ports Terminals Inc. v. Canada (Labour Relations Board), (1993), 164 N.R. 60, Mr. Justice Décary wrote at p. 67:

The fact that the adverse party is not entitled to receive a copy of the material in question, even for the 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.

According to Décary J.A., the tribunal does not have to do anything other than to hand over relevant material in their possession. The tribunal does not have to find new evidence for the applicant. In the context of the CEAA process, this means all information in the respondents' possession concerning Sunpine's projects is relevant to the specific proposal.

     In Pathak, cited above, the scope of relevance was considered. Mr. Justice Pratte (with Mr. Justice Décary concurring) 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 the 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.

Neither Quebec Ports nor Pathak stands for the proposition that a relevant document is one which was "considered" or "relied upon". Pathak clearly states that the test for relevancy is how the document relates to the grounds in the originating notice of motion and the supporting affidavit.

     The issue now before the Court is whether the material requested by the applicant falls within rule 1612. The applicant made six requests for documents and submits they are relevant and within the possession of the respondents. The respondents' general submission is that the relevant documents have already been included in the tribunal record and that rule 1612 has been fully complied with.

     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. 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 next step is to determine whether the requested documents are relevant with respect to the grounds set out in the applicant's originating notice of motion. This warrants an examination of all six requests which the applicant made, and the responses it received.

     It is important to note that the respondents did not try to invoke any of the section 55 exceptions when they made their replies to the applicant's requests. The respondents made their responses pursuant to rule 1613(2) by letter dated November 8, 1995 (exhibit 5, affidavit of Carol Mcdonald).

     According to Pathak, relevancy must be determined after reviewing the request in conjunction with the grounds of the originating notice of motion. This warrants their reproduction here:

1. The Director, Marine Programs, Canadian Coast [sic], in purporting to carry out an environmental assessment of Sunpine Forest Products Ltd.'s Prairie Creek bridge and Ram River bridge proposals, failed to comply with the requirements of [the] CEAA, and in particular:

(i) failed to comply with the requirement in section 15(3) to assess every construction, operation or other undertaking that is likely to be carried out in relation to proposed project,

(ii) failed to comply with the requirement to take into consideration all of the factors listed in          section 16(1), including:

(a) the full environmental effects of the project, including the cumulative environmental effects likely to result from the project in combination with other projects or activities that have been or will be carried out,

(b) the significance of the effects referred to in paragraph (a), and

(c) comments received from the public,

(iii) failed to comply with the requirements in sections 18(3) and 55 to establish a public          registry, to operate it in a manner that ensures convenient public access to the registry, and to give the public an opportunity to examine and comment on any records in the registry,

and thereby erred in law, acted without jurisdiction and failed to take into consideration relevant facts.

2. That the Director, Marine Programs, Canadian Coast Guard, as a result of the above legal      deficiencies in the environmental assessment process, erred in law and acted without jurisdiction in deciding, under section 20(1)(a) and (c)(iii) of CEAA [sic] that Sunpine Forest Products Ltd.'s Prairie Creek bridge and Ram River bridge proposals are not likely to cause significant adverse environmental effects, and that public concerns do not warrant reference to a review panel;

3. Until the requirements of CEAA [sic] have been fully complied with, the Minister of Fisheries and Oceans lacks jurisdiction to exercise any decision-making authority under section 5(1) of the NWPA, or under any other enactment referred to in section 5(1) of CEAA [sic], in relation to Sunpine's proposed construction of the Prairie Creek and Ram River bridges.

As well, the affidavit of Dr. Martha Kostuch was filed with the originating notice of motion.

Request #1

"All documents contained in the public registry regarding the Prairie Creek and Ram River bridge proposals."

Response

"Any documents contained in the public registry that were considered by the tribunal have been certified and filed on October 21, 1996. In our view this complies with rule 1612."

     The applicant seeks the certified copy of Sunpine's proposal document. The only parts of the proposal document included in the tribunal record were pp. i, 1. 3 and 4 of the proposal document and "several scattered pages" of one of 10 appendices. The actual proposal is 21 pages long and has 10 appendices. [The respondent provided an uncertified copy of the proposal to the applicant on October 22, 1996 (affidavit of Carol McDonald), but apparently there has not yet been any certified copy forwarded to the registry or given to the applicant].

     The applicant argues it is entitled to a certified copy of Sunpine's proposal because it provided the basis for the screening report and the NWPA proposals. Not only is the proposal required to be in the public registry, but is clearly relevant when the grounds for the originating notice of motion are examined. This is at the heart of this judicial review application. The respondents' argument, that only relevant information which was considered by the tribunal needs to be given to the applicant, is not supported by the jurisprudence. It is hard to imagine that the responsible authority considered only 4 pages of a 21 page proposal. Relied upon, perhaps, but reliance is not part of rule 1612. (How were the pages selected without considering the whole document?) Perhaps the respondents are just too wan, busy or tired to comply. Could it be?

     Further, the applicant alleges that other documents which were in the public registry were omitted by the respondents. These include comments on the proposal document which were submitted by the Alberta Environmental Protection - Surface Water Rights Branch and the Alberta Environmental Protection - Resources Administration Division, which the screening reports indicate were received. The applicant also seeks any other documents in the public registry of which the respondents are aware. This is not an attempt at discovery: these requests are for documents already in the public eye. These documents are relevant and must be certified and turned over, even if it does seem to take too much tiresome trouble and effort for the respondents.

Request #2

"All documents referred to in the screening reports on the Prairie Creek and Ram River bridge proposals, including but not limited to any documents received from Sunpine, any responses received from any federal or provincial government officials, and any comments received from the public."

Response

"Any documents contained in the public registry that were considered under the tribunal have been certified and filed on October 21, 1996. In our view this complies with rule 1612."

     The applicant is requesting documents referred to in the screening reports which may or may not be in the public registry. For example, at p. 5 of the Prairie Creek screening report:

1. The Prairie Creek Bridge Crossing Study Report provided to the DFO - Habitat Management Division on September 13, 1995.

2. The NWPA application CW1461.04, December 1995 submitted to the Canadian Coast Guard by AGRA Earth and Environmental Ltd.

3. Supplemental information document to DRO-HMD dated March 18, 1996

There also exists a similar list of documents in the Ram River Screening Report, at p.5.

     The applicant submits that with respect to rule 1612, these documents are in the possession of the respondents and are relevant to the application because they pertain to the environmental impacts of Sunpine's proposal. Although not argued, subsection 55(3) of the CEAA is sufficiently broad to require their inclusion in the public registry. These documents are relevant to the application when the grounds of the originating notice are examined. This is clear from grounds 1(ii) and 1(iii). These documents shall be certified and disclosed.

Request #3

"All documents concerning Sunpine Forest Products Ltd.'s construction and proposed construction of its mainline road, including the proposed Prairie Creek and Ram River bridges, and the environmental impacts thereof, including but not limited to: all correspondence, reports, studies or comments received from government officials or other persons; any notes or memoranda regarding meetings, conversations, or site inspections; and any photographs, videotapes or other materials."

Response

"To the extent that these documents are in the possession of the tribunal, relevant and considered, they have been certified and filed on October 31, 1995. In our view, this complies with rule 1612."

"Considered" is the element which the respondents gratuitously assert. It is not an element of rule 1612.

     The applicant is looking for information the tribunal had concerning the mainline road, a physical work. Its relevance is tied to subsection 15(3) of the CEAA and is made out in ground 1(i) of the originating notice: "every construction, operation * * * or other undertaking" that is likely to be carried out in relation to the proposed project must be assessed. Also relevant is subsection 16(1) of the CEAA, made out in ground 1(ii) of the originating notice, which requires that the "full environmental effects of the project, including the cumulative environmental effects * * * likely to result from the project in combination with other projects or activities that have been or will be carried out", the "significance of [these] effects", and "comments received from the public".

     Again, this material should have been in the registry. The screening reports also refer to documents received by the DFO concerning Sunpine's proposal and its environmental effects. This implies possession. These documents must be certified and forwarded to the applicant.

Request #4

"All documents concerning road construction or operation, timber harvesting, and other commercial activities that have occurred in recent years or are planned in the Ram River and Prairie Creek watersheds, and the environmental impacts of such activities, particularly the impacts on fish or fish habitat. This should include, but not be limited to, documents concerning any such activities or planned activities by Sunpine Forest Products Ltd. Such documents should include any correspondence, comments, plans, reports studies photographs, videotapes, and notes of meetings or conversations."

Response

"These documents are not relevant to the application for judicial review and were not in possession of the tribunal whose decision is being challenged."

     This is a far ranging request, but again the relevance is tied to grounds 1(i) and (ii) of the notice of motion. These documents are clearly relevant to Sunpine's proposed mainline road. This request centres around possession. The applicant submits that the DFO has in its possession documents regarding Sunpine's mainline road and its environmental impacts. The proposed purpose of the road is to support planned timber harvesting. Once again, this is material which section 55 of the CEAA requires to be in the public registry. As long as the documents come into contemplation of subsection 16(1) of the Act, and they do, they must be in the registry. This is a definite requirement of the Act. All of the requested documents relating to Sunpine's proposal shall be certified and disclosed to the applicant

Request #5

"All documents, studies, reports, or photographic material describing the impacts that bridge building, road construction and use, and logging activity can have on the environment, and particularly the actual or potential impacts on fish or fish habitat."

Response

"To the extent that these documents were in possession of the tribunal, relevant and considered, they have been certified and filed on October 21, 1996. The remainder of the documents requested appear to be both speculative and irrelevant."

     This request tests the bounds of relevancy. What saves is it insofar as Sunpine's proposal is concerned is the "cumulative effects" under section 16(1)(a) of the CEAA, found in ground 1(ii) of the originating notice of motion. The applicant's argument on judicial review will be that under paragraph 16(1)(a) of the CEAA, the respondents failed to consider the cumulative impacts resulting from road construction and use, timber harvesting on the Prairie River and Ram Creek watersheds in combination with the impact of the bridges when the respondents conducted the screening. These documents are directly relevant to this issue. All such documents related to Supine's proposal shall be certified and disclosed.

Request #6

"All documents, policies, guidelines and directives concerning the application of the Canadian Environmental Assessment Act by the Canadian Coast Guard or the Department of Fisheries and Oceans."

Response

"These documents are not relevant to the application for judicial review and were not in the possession of the tribunal whose decision is being challenged."

     This is a sweeping request. The scope of the request would be onerous on the respondents. The breadth of the request would seem to include former environmental assessments and all of their relevant documents done by the Canadian Coast Guard and the DFO. It is doubtful that any of these need to be filed in the public registry. The relevance line can be drawn here. The grounds of the originating notice of motion pertain to the Sunpine proposal, and that alone. The potential enormity of the request boggles the mind. This would be akin to the DFO disclosing a large part of their archives. This request is allowed only insofar as any documents exist which relate to Sunpine's proposal.

     Accordingly, the respondents' motion to strike the Attorney General of Canada as a respondent is allowed, as is the applicant's rule 1612 request in counsel's suggested terms to be ordered by this Court. Counsel's suggested draft order is perhaps narrower than the within reasons would permit.

    

Judge

Ottawa, Ontario

May 7, 1997