Date: 20021217
Dockets: T-1179-01
Neutral citation: 2002 FCT 1309
Ottawa, Ontario, Tuesday the 17th day of December 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THE ECOLOGY ACTION CENTRE SOCIETY
Applicant
-and-
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] These are my reasons for dismissing an appeal from an order of Prothonotary Aronovitch. In the order under appeal the learned Prothonotary struck seven affidavits sworn by expert witnesses which were filed by the applicant in support of its application for judicial review.
FACTUAL BACKGROUND
[2] In the underlying application for judicial review the applicant seeks an order quashing the May 30, 2001 Variation Order 2001-074 (" variation order") which opened the Canadian portion of Georges Bank for fishing for groundfish by any means, including draggers. The basis on which the application is brought, as relevant to this motion, is that the variation order was beyond the jurisdiction of the decision-maker. It will be argued by the applicant that the want of jurisdiction arises because the use of draggers, authorized by the variation order, will cause a harmful alteration, disruption or destruction of fish habitat which is prohibited by subsection 35(1) of the Fisheries Act, R.S.C. 1985, c. F-14. It will further be argued that it is beyond the jurisdiction of the decision-maker to authorize the harmful alteration, disruption or destruction because the purposes and objects of the Fisheries Act necessarily limit the extent and scope of the power to issue variation orders.
[3] The applicant filed nine affidavits in support of the application for judicial review. Two affidavits were not challenged by the respondent. Those two affidavits were filed by a representative of the applicant, Mr. Butler. Aside from providing evidence of the applicant's standing to bring this application, the affidavits describe a letter sent to the decision-maker about the impending opening of Georges Bank to groundfish dragging gear. The affidavit states that such letter enclosed 122 items of documentary material on the destruction of fish habitat by dragging and trawling practices. True copies of the 122 items of documentary material were marked as an exhibit to one of the affidavits and were filed in Court.
[4] The seven expert affidavits filed by the applicant, which were struck by the prothonotary, are said to demonstrate:
a. The area affected by the order contains fish habitat;
b. The nature and operation of the draggers that will operate as a consequence of the variation order; and
c. The impact draggers will have on fish habitat generally, and in the area affected by the variation order.
[5] The respondent challenged the seven expert affidavits on the basis that they were fresh evidence not before the decision-maker at the time the impugned decision was made. In reply, the applicant argued that the seven affidavits were required to put the want or lack of jurisdiction before the Court on the application for judicial review.
THE DECISION UNDER APPEAL
[6] The prothonotary directed herself to the decision of the Federal Court of Appeal in Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135 (C.A.) as establishing the applicable legal principles. The prothonotary was unable to conclude that the alleged want of jurisdiction could only be made apparent by the additional expert evidence the applicant sought to adduce. Rather, the prothonotary found that the expert evidence was an attempt to re-argue the question and would open the matter up for scientific debate beyond the bounds of the impugned decision.
THE STANDARD OF REVIEW
[7] Discretionary orders of prothonotaries should not be disturbed on appeal unless:
a. They are clearly wrong, in the sense that the prothonotary exercised his or her discretion based upon a wrong principal or upon a misapprehension of the facts; or
b. The exercise of discretion raises a question vital to the final issue of the case.
See: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.).
THE ISSUES RAISED ON APPEAL
[8] The applicant says that on the appeal the Court should set aside the prothonotary's order and determine the issue de novo because the order:
1. was based upon incorrect application of principle;
2. was based upon misapprehension of the facts; and
3. raised questions that are vital to the final issue in the case.
ANALYSIS
i) Was the prothonotary's order based upon incorrect application of principle?
[9] The applicant says that the prothonotary erred in law by misconstruing the nature of the variation order. The applicant relies upon the prothonotary's statement that "[i]n the circumstances the subsequent affidavits and fresh evidence can only be construed as an attempt to reargue the question" to argue that the prothonotary assumed that the applicant sought review of an adjudicative, not legislative decision. It follows, the applicant submits, that the prothonotary misapplied the rule which limits extrinsic evidence on judicial review to situations in which it is the only evidence available to illustrate a want to jurisdiction. The applicant observes that the stated purpose behind this exception is that to do otherwise creates the opportunity for a de facto re-hearing of the matter. In the case at bar, however, there was no hearing or other administrative process to begin with. The applicant says that while it may have volunteered information to the decision-maker prior to the issuance of the variation order, it cannot be said that the applicant has already argued its case so that it is now trying to re-argue its case on judicial review.
[10] I have not been persuaded that the prothonotary erred as alleged for the following reasons.
[11] First, after carefully reading the prothonotary's endorsement as a whole, I do not conclude that she misapprehended the nature of the variation order and the process by which it was made. The prothonotary made no reference to an adjudicative hearing, and in the ante-penultimate paragraph of the endorsement refers not to a hearing, but to materials "sent to the decision-maker". The reference in the endorsement to rearguing the question is simply a reference to the applicant seeking reconsideration of the merits of the decision, as opposed to judicial review of the decision.
[12] Second, the applicant cited no authority for the proposition that the principal articulated by Mr. Justice Rothstein in Gitxsan, supra as to the admissibility of extrinsic evidence applies only to the judicial review of decisions which are adjudicative in nature. Nor do I consider that any reason exists in principle which would justify such limitation.
[13] The purpose of judicial review is not to determine whether a decision is correct in an absolute sense. On judicial review the Court does not consider the wisdom of a decision. Rather, the purpose of judicial review is to determine whether the tribunal committed a reviewable error. The purpose of judicial review remains the same whether the decision under review is legislative, adjudicative or administrative in nature. The rule limiting extrinsic evidence on judicial review flows directly from the nature and purpose of judicial review and not from the nature of the decision under review.
[14] As the nature and purpose of judicial review remain the same, it follows, in my view, that the rule limiting extrinsic evidence applies whether the decision under review is legislative, adjudicative or administrative.
ii) Was the prothonotary's order based upon misapprehension of the facts?
[15] In her endorsement the prothonotary described the expert affidavits as adding "additional colour and opinion into the proceeding". These words are said by the applicant to reflect misapprehension of the facts because the impugned affidavits are said to demonstrate that the variation order went beyond the jurisdiction of the decision-maker. The expert affidavits demonstrate the impact draggers have upon the ocean floor and fish habitat, and are therefore said to establish the ultra vires nature of the variation order by establishing its practical effect.
[16] Again, I have not been satisfied that the prothonotary so erred. The prothonotary correctly noted that Mr. Butler's affidavits place into evidence in the application for judicial review the 122 documentary items which were before the decision-maker. The items document, in the words of the prothonotary, "the very issue giving rise to the alleged excess of jurisdiction namely, harm to fish habitat caused by the [d]raggers".
[17] Included in the 122 items referred to by the prothonotary and exhibited in Mr. Butler's first affidavit were:
- The submission to the Georges Bank Review Panel by the applicant which detailed the ecological importance of Georges Bank.
- The document entitled "Georges Bank Resources An Economic Profile", which was prepared for the Georges Bank Review Panel by a firm of consulting economists, and which, among other things, described stock abundance and harvest levels.
- The 1999 "Georges Bank Review Panel Report" which, among other things, described the fishery and the ecosystem.
- An article by Dr. Collie, one of the experts whose affidavit was struck, entitled "Scallop Dredging on Georges Bank: Photographic Evaluation of Effects on Benthic Epifauna".
- 45 peer reviewed scientific publications, scientific symposia, and scientific publications dealing with the impact of fishing gear on sea floor habitats, including Dr. Collie's article "Effects of bottom fishing on the Benthic megafauna of Georges Bank".
[18] In Gitxsan, Mr. Justice Rothstein wrote at page 143 that:
[...] I think the applicant is correct that on judicial review evidence extrinsic to the record before the tribunal whose decision is being reviewed may be introduced. However, the opportunity to do so is limited to those circumstances in which the only way to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court. In McEwen, Rinfret J. quotes from Nat Bell Liquors as follows:
The subject was fully considered in Rex v. Nat Bell Liquors Limited. In that case, Lord Sumner, delivering the judgment of their Lordships of the Privy Council, said (p. 153):
In Reg v. Bolton, Lord Denman, in a well-known passage, says: "The case to be supposed is one *** in which the Legislature has trusted the original, it may be (as here) the final, jurisdiction on the merits to the magistrates below; in which this Court has no jurisdiction as to the merits either originally or on appeal. All that we can then do *** is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular and according to law *** Where the charge laid before the magistrate, as stated in the information, does not amount in law to the offence over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give him jurisdiction; the conviction would be bad on the face of the proceedings, all being returned before us. Or if, the charge being really insufficient, he had mis-stated it in drawing up the proceedings, so that they would appear to be regular, it would be clearly competent to the defendant to show to us by affidavits what the real charge was, and, that appearing to have been insufficient, we would quash the conviction; *** But, as in this latest case, we cannot get at the want of jurisdiction but by affidavits, of necessity we must received them. It will be observed, however, that here we received them, not to show that the magistrate has come to a wrong conclusion, but that he never ought to have begun the inquiry ***
[19] While in another case, on a different evidentiary record, expert evidence might be required and therefore be admissible to establish the ultra vires nature of a measure because of its effect, in the present case the applicant has failed to establish that such evidence is necessary. Substantial material was put before the decision-maker by the applicant regarding the three facts that the expert evidence is said to demonstrate. This material is before the Court. Therefore, the prothonotary correctly concluded that this is not a case where the want of jurisdiction can only be made apparent by reference to extrinsic evidence. She did not, I find, misapprehend the facts as the applicant asserts.
iii) Does the prothonotary's order raise a question vital to the final issue in the case?
[20] The applicant says the nature of the evidentiary record is a vital aspect of the proceeding, so on this appeal the Court must consider the issue of excluding the seven expert affidavits de novo.
[21] In Aqua-Gem, supra, Mr. Justice MacGuigan, writing for the majority, clarified at footnote 15, at page 463 of the report, that "the final issue of the case" is quite different from the "final issue in the case". What is meant when considering the exercise of de novo jurisdiction is a question "vital to the result of the case".
[22] In view of my conclusion that even without the impugned affidavits there is evidence on which the jurisdictional argument can be made, I do not find the prothonotary's order to raise a question vital to the result of the case. The two affidavits which the respondent did not challenge contain evidence about Georges Bank as a fish habitat, the nature and operation of draggers, and the impact of draggers on Georges Bank. Notwithstanding the prothonotary's order the application for judicial review may be heard, and the jurisdictional argument may be argued on the record now before the Court. Accordingly, it cannot be said that the order of the prothonotary raised questions vital to the final issue of the case. This is analogous to the situation considered by Mr. Justice Cullen in Keramchemie GmbH v. Keramchemie (Canada) Ltd., [1994] F.C.J. No. 1118 (T.D.).
CONCLUSION
[23] For these reasons, the appeal will be dismissed.
[24] The respondent seeks the costs of the appeal. In my view, the respondent should receive the costs of the appeal, in the cause.
ORDER
[25] IT IS THEREFORE ORDERED THAT:
1. The appeal is dismissed.
2. The applicant shall pay to the respondent the costs of this appeal, in the cause.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1179-01
STYLE OF CAUSE: The Ecology Action Centre Society v.
The Attorney General of Canada
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 8, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: December 17, 2002
APPEARANCES:
Mr. Robert Wright FOR THE APPLICANT
Mr. Raymond MacCallum
Ms. Ginette Mazerolle FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Robert Wright FOR THE APPLICANT
Mr. Raymond MacCallum
Sierra Legal Defence Fund
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada