Date: 19991222
Docket: T-1400-99
BETWEEN:
REGIONAL MUNICIPALITY OF HAMILTON-WENTWORTH
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES and OCEANS
and NICK MULDER, RAY EFFER and SALLY LERNER
in their capacities as members of a review panel appointed under the
Canadian Environment Assessment Act
Respondents
REASONS FOR ORDER
LAFRENIÈRE P.:
[1] The Respondents move for an order striking the following paragraphs from the Applicant"s notice of application as well as affidavits, or certain parts thereof, delivered in support of the application:
| a) paragraphs 1 to 3, 6 and 8 to 10 of the relief sought; |
| b) the words "in referring the matter to the Review Panel and" and the words "in ordering the review and" in paragraphs 4 and 5 respectively of the relief sought; |
| c) paragraphs 1 to 7 and 13 of the grounds for the application; |
| d) the words "in ordering a review and" in the third line of the opening sentence and sub-paragraphs d, e, g and h of paragraph 12 of the grounds for the application; |
| e) the affidavits of Tony Battaglia, Hart Solomon, Cameron Portt, Ronald Marini, Barbara Ashenhurst, Nicolas Catalano, Gary Moore, Serge Metikosh, Mark Bekkering and Ian Williams; |
| f) paragraphs 6 to 150 and 160 of the affidavit of Christopher Murray Sworn September 26, 1999; |
| g) paragraphs 21 to 101, 104 to 184 of the affidavit of Dr. G.A. Yarranton. |
[2] The Applicant responded by filing a cross-motion seeking, inter alia, dismissal of the Respondents" motion on the grounds that this Court is without jurisdiction to strike the application at the motion stage, or alternatively, seeking permission to bring the application for judicial review outside of the time specified in subsection 18.1(2) of the Federal Court Act .
[3] These motions arise from an application for judicial review brought by the Applicant with respect to a decision of the Respondent Minister of Environment ("Environment Minister") made on July 5, 1999 appointing members of a Review Panel under the Canadian Environmental Assessment Act ("CEAA") to conduct a public hearing review of the environmental effects of the Lincoln Alexander/Red Hill Creek Expressway ("Expressway") and setting the Terms of Reference for the review.
[4] A number of interlocutory motions were brought by the parties and were scheduled to be heard at a special sitting before me on November 10, 1999. The various forms of relief being sought include a request for directions by the Applicant in respect to documents the Respondents object to produce under Rule 318. The Applicant also seeks leave to file supplementary affidavit material and to amend the notice of application to include additional grounds for review. Moreover, the Applicant moves for an order fixing a schedule for completion of the remaining procedural steps in the proceeding, including the date of hearing of the application for judicial review. Finally, The Friends of the Red Hill Valley have requested leave to intervene in the proceeding.
[5] Because the Applicant"s request for an extension of time to bring its application, should it prove necessary, can only be granted by a judge, the parties agreed that the hearing before me should be limited to the Respondents" motion to strike and to the Applicant"s cross-motion for dismissal for want of jurisdiction. The parties also agreed that a determination of the ambit of the application for judicial review would substantially narrow the issues in the remaining motions, including the question of the propriety of the affidavits filed in support of the application. Consequently, the hearing before me was limited to the question as to whether certain paragraphs of the notice of application can, or should, properly be struck. All other matters were adjourned to be heard at a later date.
[6] On December 10, 1999, an Order issued granting the Respondents" motion to strike in part and dismissing the Applicant"s cross-motion for dismissal for want of jurisdiction. The following are my written reasons for order.
I - The Facts
[7] The Expressway is a major transportation corridor undertaking that extends along the south and east of the City of Hamilton from Highway 403 in Ancaster, across the Mountain Urban Area of the Regional Municipality of Hamilton-Wentworth ("the Applicant"), turning north to follow the Red Hill Creek Valley to a new interchange with the Queen Elizabeth Way ("QEW").
[8] On January 15, 1996 representatives from the Department of Fisheries & Oceans ("DFO"), Environment Canada ("EC") and the Applicant met to discuss the application of federal legislation to the Red Hill Creek Expressway Project ("Project"). At the meeting, the Applicant was advised that if any destruction of fish habitat would result from the Project, the Applicant would be required to apply for a Fisheries Act authorization and that such an application would trigger the CEAA. The Applicant was further advised that an environmental screening required under the CEAA could include a public review or mediation.
[9] By letter dated January 25, 1998 the Applicant was informed that DFO, based on the information contained in a Draft Summary Report prepared by the Applicant, had come to the conclusion that the Project could have harmful impact on fish and fish habitat in violation of subsection 35(1) of the Fisheries Act. Section 35 is reproduced below in its entirety.
Harmful alteration, etc., of fish habitat
35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.
Alteration, etc., authorized
(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.
Détérioration de l'habitat du poisson, etc.
35. (1) Il est interdit d'exploiter des ouvrages ou entreprises entraînant la
détérioration, la destruction ou la perturbation de l'habitat du poisson.
Exception
(2) Le paragraphe (1) ne s'applique pas aux personnes qui détériorent,
détruisent ou perturbent l'habitat du poisson avec des moyens ou dans des
circonstances autorisés par le ministre ou conformes aux règlements pris par le
gouverneur en conseil en application de la présente loi.
[10] In the same letter, the Applicant was advised that an authorization pursuant to subsection 35(2) would be required if it intended to go ahead with the Project. The Applicant was reminded that an application for authorization would trigger the CEAA, which in turn would cause DFO, as a responsible authority, to conduct an environmental screening of the Project.
[11] Further meetings were held between representatives of DFO, EC and the Applicant on February 23 and 27, 1998. During the course of these meetings, discussions were held regarding the federal environmental assessment requirements, including the stream stabilization options in reference to the fish habitat, the timing of the federal permit application, the evaluation criteria and the review of the design elements of the Project to determine the interest of various government entities.
[12] By a letter dated May 26, 1998 to the Applicant, Edwin Debruyn, a Fish Habitat Biologist with DFO, repeated its position with respect to the need for Fisheries Act authorization by writing:
Based on the information provided, I have concluded that the proposed options in the DSR to construct the Red Hill Expressway may result in the harmful alteration, disruption or destruction of fish habitat. The harmful alteration, disruption or destruction of fish habitat is prohibited unless authorized by the Department of Fisheries and Oceans (DFO) pursuant to Section 35(2) of the Fisheries Act.
Mr. Debruyn further confirmed his understanding that the Applicant would be applying for such authorization in the near future. He also advised that DFO would be initiating the screening process, which would include the circulation of the Project proposal to all federal departments having administrative and regulatory responsibility in connection thereto.
[13] In July 1998, the Applicant submitted its application for Fisheries Act authorization. Subsequently, by letter dated October 5, 1998, the Applicant summarized its understanding as to the CEAA process. Certain relevant extracts of the letter are reproduced below.
The decision to assess need and alternatives in the screening report is discretionary for a project like this.
Please advise us of your decision on whether or not you include an assessment of need and alternatives in the screening report. If you do include it, please indicate how you intend to address it.
The screening report that is produced at the end of March will make a recommendation on the significance of the project to federal interests. It could also include a recommendation for a panel hearing. A panel hearing would set back the project schedule considerably. However, we understand that any recommendations of the panel are only binding if they are within federal jurisdiction.
[14] In April 1999, DFO was advised by EC that it had identified significant adverse environmental effect on the habitat that provides an important ecological function for migratory birds. EC concluded that the Project could have significant adverse environmental effect on migratory birds. EC also raised concerns about water and air quality issues.
[15] About the same time, DFO became aware of substantial public concern regarding the Project. Consequently, the completion of the screening report was abandoned and on May 4, 1999 the Minister of the Fisheries and Oceans requested that his colleague, the Environment Minister, refer the Project to a review panel pursuant to subsections 25(a) and (b) of the CEAA which provide as follows:
| Referral to Minister 25. Subject to paragraphs 20(1)(b) and (c), where at any time a responsible authority is of the opinion that (a) a project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, may cause significant adverse environmental effects, or (b) public concerns warrant a reference to a mediator or a review panel, the responsible authority may request the Minister to refer the project to a mediator or a review panel in accordance with section 29. |
| Examen par une commission 25. Sous réserve des alinéas 20(1)b) et c), à tout moment, si elle estime soit que le projet, compte tenu de l'application des mesures d'atténuation qu'elle estime indiquées, peut entraîner des effets environnementaux négatifs importants, soit que les préoccupations du public justifient une médiation ou un examen par une commission, l'autorité responsable peut demander au ministre d'y faire procéder conformément à l'article 29. |
[16] On May 6, 1999 the Environment Minister announced by press release that she had decided to refer the Project to a review panel pursuant to clause 29(1)(a)(ii) of the CEAA. The press release specifically indicates that the decision was based on the request from the Minister of Fisheries and Oceans. Subsections 28(1)(a) and (b) and 29(1)(a) and (b) of the legislation are reproduced below.
| Referral by Minister 28. (1) Where at any time the Minister is of the opinion that (a) a project for which an environmental assessment may be required under section 5, taking into account the implementation of any appropriate mitigation measures, may cause significant adverse environmental effects, or (b) public concerns warrant a reference to a mediator or a review panel, the Minister may, after offering to consult with the jurisdiction, within the meaning of subsection 12(5), where the project is to be carried out and after consulting with the responsible authority or, where there is no responsible authority in relation to the project, the appropriate federal authority, refer the project to a mediator or a review panel in accordance with section 29. Mediation and Panel Reviews Initial referral to mediator or review panel 29. (1) Subject to subsection (2), where a project is to be referred to a mediator or a review panel, the Minister shall (a) refer the environmental assessment relating to the project to (i) a mediator, or (ii) a review panel; or (b) refer part of the environmental assessment relating to the project to a mediator and part of that assessment to a review panel. |
| Pouvoir du ministre 28. (1) À tout moment, le ministre, après avoir offert de consulter l'instance, au sens du paragraphe 12(5), responsable du lieu où le projet doit être réalisé et après consultation de l'autorité responsable, ou, à défaut, de toute autorité fédérale compétente, s'il estime soit qu'un projet assujetti à l'évaluation environnementale aux termes de l'article 5 peut, compte tenu de l'application des mesures d'atténuation indiquées, entraîner des effets environnementaux négatifs importants, soit que les préoccupations du public le justifient, peut faire procéder à une médiation ou à un examen par une commission conformément à l'article 29. Loi sur la gestion des ressources de la vallée du Mackenzie (2) Dans les cas où il en est saisi en vertu de l'alinéa 130(1)c) de la Loi sur la gestion des ressources de la vallée du Mackenzie, le ministre est tenu de soumettre l'affaire à un examen par une commission. Médiation ou examen par une commission Décision du ministre 29. (1) Sous réserve du paragraphe (2), dans le cas où un projet doit faire l'objet d'une médiation ou d'un examen par une commission, le ministre : a) soit renvoie l'évaluation environnementale du projet à un médiateur ou à une commission; b) soit renvoie une partie de l'évaluation environnementale du projet à un médiateur et une partie de celle-ci à une commission. |
[17] The Applicant wrote the Environment Minister on May 25, 1999 to acknowledge her decision to refer the Project to a review panel. It also raised the following three issues to be considered prior to issuance of the draft terms of reference and draft environmental assessment guidelines: (1) the scope of the project and terms of reference for the review panel; (2) proper provincial consultation prior to referring the project to a review panel and (3) the timing of appointment and the Applicant"s interest in the selection of panel members. The Applicant"s letter contained the following qualification:
While the immediacy of your pending decisions under CEAA require us to make this submission on behalf of the Region now, we point out that it is being made without our having completed an analysis as to whether there is any legal basis at all for CEAA to be applied to the completion of this undertaking. This is a matter we are currently examining and therefore the submission contained in this letter should be understood in that context.
[18] Draft terms of reference were issued on May 29, 1999 and on June 8, 1999 counsel for the Applicant provided its comments by written submissions to the Canadian Environmental Assessment Agency.
[19] On July 5, 1999 the Environment Minister announced her decision with respect to the membership of the review panel and its terms of reference pursuant to paragraphs 33(1)(a) and (b) of the CEAA which provide as follows:
| Appointment of Review Panel 33. (1) Where a project is referred to a review panel, the Minister shall, in consultation with the responsible authority, (a) appoint as members of the panel, including the chairperson thereof, persons who (i) are unbiased and free from any conflict of interest relative to the project and who have knowledge or experience relevant to the anticipated environmental effects of the project, and (ii) may have been selected from a roster established pursuant to subsection (2); and (b) fix the terms of reference of the panel. |
Commission 33. (1) Le ministre, en consultation avec l'autorité responsable, nomme les membres, y compris le président, de la commission d'évaluation environnementale et fixe le mandat de celle-ci. À cette fin, le ministre choisit des personnes : a) impartiales, non en conflit d'intérêts avec le projet et pourvues des connaissances ou de l'expérience voulues touchant les effets environnementaux prévisibles du projet; b) qui peuvent avoir été choisies sur la liste établie en vertu du paragraphe (2). |
[20] On August 4, 1999 the Applicant brought an application for judicial review with respect to a decision of the Environment Minister made on July 5, 1999 appointing members of a Review Panel and setting the Terms of Reference for the review.
[21] In addition to challenging the above decision of the Environment Minister, the application also seeks a declaration that the Fisheries Minister acted unfairly, unconstitutionally, in breach of the rules of natural justice and beyond his jurisdiction in requesting the Environment Minister to refer the completion of the Expressway to a Review Panel, a declaration that Environment Canada is not a responsible authority under the CEAA and an order quashing the decision of the Environment Minister to refer the completion of the Expressway to the Review Panel.
II - Submissions of the Parties
[22] The Respondents concede that the application, as it relates to the decision of the Environment Minister made on July 5, 1999 appointing members of a Review Panel and setting the Terms of Reference for the review, is timely. It is urged, however, by the Respondents that challenges to other decisions referred to in the application are brought too late in that they are outside the time specified to commence proceedings for judicial review pursuant to subsection 18.1(2) of the Federal Court Act .
[23] The Respondents assert that the two decisions by the Minister of Fisheries and Oceans, the first dated January 25, 1998 whereby he concluded that the Project may have a harmful impact on fish and fish habitat and the second dated May 4, 1999 whereby he requested the Environment Minister to refer the environmental assessment to a review panel, were exercises of jurisdiction or power confirmed by separate and distinct statutory provisions.
[24] The Respondents further submit that the decision of the Minister of Environment to refer the Project to a review panel, communicated by a press release dated May 6, 1999, was also a separate and distinct decision from the order dated July 5, 1999 appointing the members of the review panel and fixing their terms of reference.
[25] The Respondents contend that each decision described above constitutes a separate and distinct order that was capable of being judicially reviewed.1 As such, since only the July 5, 1999 decision was challenged within the 30 day period under subsection 18.1(2) of the Federal Court Act, judicial review of the prior decisions is no longer available.
[26] The Respondents submit that the Court has inherent jurisdiction, or through Rule 4 by analogy to other rules, to strike out relief sought and the grounds advanced in a Notice of Application that have no likelihood of success.
[27] The Respondents submit that the portions of the Applicant"s notice of application they seek to strike out relate to earlier decisions which are not properly the subject matter of the judicial review application. On the judicial review application, the Court should only be concerned with the legal issues relating to the decision of the Environment Minister appointing the panel members and affixing the panel"s terms of reference. 2
[28] The Applicants replied that the motion to strike should be dismissed on six grounds.
[29] First, the Applicant submits that this Court has no jurisdiction to strike a notice of application for judicial review, or any part thereof; rather that is a matter for the judge hearing the application.3
[30] Second, in the alternative, the exercise of the jurisdiction under section 18 does not depend on the existence of a "decision or order".
[31] Third, there is no time limit for judicial review of a matter. The Applicant relies on the decision of the Federal Court of Appeal in Krause v. Canada. 4
[32] Fourth, if the thirty day time limit under subsection 18.1(2) applies, then it has not expired as the decision was not communicated to the Applicant until October 1999. The news release on May 6, 1999 was not an effective communication within contemplation of the Federal Court Act.
[33] Fifth, assuming that the thirty day limit has expired, then it is not applicable as the events which took place before July 5, 1999 are part of a series of decisions within the environmental assessment process which culminated in the final decision which is presently the subject of judicial review. As such, "the matter is more of the nature of a continuing process than in the nature of a specific decision or order" as was held in Puccini v. Director General, Corporate Administrative Services, Agriculture Canada.5
[34] Sixth, if the time limit does apply, the Court should extend the time to bring the application for judicial review. The Applicant recognized that this request for relief would have to be addressed to a judge in the event the Respondents were successful on their motion to strike.
III - Analysis
[35] The motion and cross-motion before me raise two central questions. The first is whether the Court, at the motion stage, has jurisdiction to strike portions of an originating notice of motion. If the first question is answered in the affirmative, the second question is what decision or action is properly being questioned by the application; in other words, what is the ambit of the application.
[36] I will deal first with the Applicant"s objection regarding the Court"s jurisdiction to strike at the motion stage. The general rule is that the proper way to contest an originating notice of motion is at the hearing of the application and that a motion to strike is not appropriate. The jurisprudence indicates however that the Court has jurisdiction to dismiss a judicial review application on a preliminary motion in exceptional circumstances, such as where a notice of motion "is so clearly improper as to be bereft of any possibility of success". 6 As a result, the Court must inquire whether exceptional circumstances exist which would warrant its intervention at this stage.
[37] On August 4, 1999, the Applicant brought an application for judicial review which specified that the decision being challenged was that of the Environment Minister made on July 5, 1999 appointing members of a review panel and setting the Terms of Reference for the review. However, the focus of the relief sought and the grounds for relief go well beyond this specific decision. As an example, in the prayer for relief found in the notice of application, the Applicant seeks an order quashing the decision of the Environment Minister dated May 6, 1999 to refer the completion of the Expressway to the review panel.
[38] As a general rule, a judicial review application is to be brought only with respect to a single order or matter, unless otherwise ordered by the Court. Moreover, section 18.1(2) of the Federal Court Act establishes a time limitation of 30 days within which to seek judicial review of a decision or order. This Court has not hesitated in the past to dismiss, on a preliminary motion, an application which on its face is clearly untimely and, accordingly, bereft of any possibility of success .
[39] However, as stated by Muldoon J. in Mahmood v Canada7:
While the rule states that only one decision ("order" solely now) may be attacked, the Trial Division has also recognized that continuing "acts" or decisions may be reviewed under s. 18.1 of the Federal Court Act without contravening rule 1602(4) (see for example Puccini v. Director General, Corporate Administrative Services, Agriculture Canada, [1993]. 3 F.C. 557; 65 F.T.R. 127 (T.D.)). However, in those cases, the acts in question were of a continuing nature, making it difficult for the applicant to pinpoint a single decision from which relief could be sought by this Court. They did not involve, as in the facts here, two different fact situations, two different types of relief sought and two different decision-making bodies.
[40] Further, in Krause et al v. Her Majesty the Queen, supra, the Federal Court of Appeal held that the appellants were not prevented from bringing an application for judicial review beyond the 30 day time limit where they were not attacking a decision, but rather seeking to compel performance of public duties and to prevent continued failure to perform such duties. The language used in subsection 18.1 was designed to accommodate an application for both a section 18 remedy per se, in addition to setting aside or referring back a "decision or order".
[41] The facts in the present case are, in my view, distinguishable from those found in the Puccini and Krause decisions. First of all, the decisions taken by the Minister of Fisheries and Oceans and the Environment Minister can easily be identified or "pin-pointed", both in terms of timing and the authority pursuant to which they were made. As such, they were not a decisions over time or fluid decisions. Second, the decisions are not of a continuing nature since they each involve a separate and distinct step in a process which must be completed before the next one can be taken. Third, the Krause decision involved an application for judicial review of acts of responsible Ministers in implementing decisions claimed to be invalid or unlawful. It does not stand for the proposition that time limits no longer apply to decisions or orders.
[42] The crux of these motions therefore is whether the actions sought to be challenged by the Applicant in its notice of application are "decisions or orders" within the meaning of subsection 18.1(2).
[43] This very question was considered by MacKay J. in Citizen"s Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of Environment)8, where he had to decide whether a decision under section 15 of the CEAA was a final decision and therefore subject to judicial review. He concluded as follows:
With respect, I am not persuaded that judicial review is premature in regard to a decision, by the responsible authority, determining the scope of the project which will be assessed, and which assessment that authority will later approve or disapprove. That decision is not merely a recommendation; rather it meets a statutory requirement and provides a basis for the process of the assessment from that point on and, as a consequence, in my opinion it is a decision subject to judicial review.
[44] I wholly adopt the above analysis. In my view, the action by the Minister of Fisheries and Oceans dated May 4, 1999 to request the Environment Minister to refer the environmental assessment to a review panel was a decision separate and distinct from the decision of the Minister of Environment to refer the Project to a review panel. The two decisions clearly met a statutory requirement and provided "a basis for the process of the assessment from that point on". In my view, the Applicant cannot avail itself of the July 5, 1999 decision by the Environment Minister appointing the panel members and fixing their terms of reference to collaterally attack earlier decisions in the process.
[45] Since the said earlier decisions were not challenged within their respective 30 day period under subsection 18.1(2) of the Federal Court Act, judicial review is not available, in the absence of extension of time being granted.
[46] The Respondents are seeking to limit, rather than bar, the application for judicial review. The Court must be mindful of Rule 3 which provides that every proceeding should be determined on its merits in a just, expeditious and least expensive manner. It would not be conducive to an orderly and efficient hearing of the proceeding to require the Respondents to file responding material and to conduct cross-examinations on evidence that is clearly irrelevant to the subject matter of the judicial review.
[47] As for the Applicant"s argument that the decision dated May 6, 1999 was not "communicated" in accordance with subsection 18.1(2), the evidence before me establishes that the Applicant became aware of the decision at the very latest on May 25, 1999 when its counsel forwarded a lengthy letter in response to the Environment Minister.
[48] I reject the Applicant"s contention that a direct communication was required in this circumstances. Moreover, the fact that the Applicant did not have all the documents underlying the decision does not extend the time to bring an application for judicial review. The record reveals that the Applicant was fully aware of the decision of the Environment Minister and her reasons for the decision well prior to the 30 day period preceding the filing of the present application for judicial review. Consequently, I conclude that this argument must fail.
IV - Conclusion
[49] The present proceeding shall be limited to a review of the decision of the Environment Minister in appointing the panel members and fixing their terms of reference.
[50] An order was pronounced on December 10, 1999 whereby the Respondents" motion to strike was granted in part. The following was ordered struck from the Applicant"s notice of application:
| (a) Paragraphs 2, 3, 8 and 10 under the heading "The Applicant makes application for:"; |
| (b) Paragraphs 1, 2, 4 and 7 under the heading "The grounds for the application are:"; |
| (c) The words "in referring the matter to the Review Panel and" and the words "in ordering the review and" in paragraphs 4 and 5 respectively of the relief sought; and |
| (d) The words "in ordering a review and" in the third line of the opening sentence and sub-paragraphs d, e, g and h of paragraph 12 of the grounds for the application. |
[1] The Applicant"s cross-motion to dismiss for want of jurisdiction was dismissed.
Prothonotary
Toronto, Ontario
December 22, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1400-99 |
| STYLE OF CAUSE: REGIONAL MUNICIPALITY OF HAMILTON-WENTWORTH |
Applicant
| - and - |
| THE MINISTER OF THE ENVIRONMENT, |
| THE MINISTER OF FISHERIES and OCEANS |
| and NICK MULDER, RAY EFFER and SALLY LERNER in their capacities as members of a review panel appointed under the Canadian Environment Assessment Act |
Respondents
| DATE OF HEARING: FRIDAY, DECEMBER 10, 1999 |
| PLACE OF HEARING: OTTAWA, ONTARIO |
| REASONS FOR ORDER BY: LAFRENIÈRE P. |
DATED: WEDNESDAY, DECEMBER 22, 1999
APPEARANCES: Mr. David Estrin and
| Mr. & Andrew Lokan |
| For the Applicant |
| Mr. Peter Vita, Q.C. and |
| Ms. Janice Rodgers |
| For the Respondents |
| Ms. Janet Minor and |
| Mr. Richard Stewart |
| For the Proposed Intervenor - Attorney General of Ontario |
| Paul Muldoon and |
| Ms. Theresa McCleneghan |
| For the Proposed Intervenor - Friends of Red Hill Valley |
SOLICITORS OF RECORD: Gowling, Strathy and Henderson
| Barristers and Solicitors |
| 199 Bay Street, Suite 4900 |
| Toronto, Ontario |
| M5L 1J3 |
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondents |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Proposed Intervenor - Attorney General of Ontario |
| Canadian Environmental Law Association |
| 517 College Street, Suite 401 |
| Toronto, Ontario |
| M6G 4A2 |
| For the Proposed Intervenor - Friends of Red Hill Valley |
| FEDERAL COURT OF CANADA |
Date: 19991222
Docket: T-1400-99
Between:
| REGIONAL MUNICIPALITY OF HAMILTON-WENTWORTH |
Applicant
| - and - |
| THE MINISTER OF THE ENVIRONMENT, |
| THE MINISTER OF FISHERIES and OCEANS |
| and NICK MULDER, RAY EFFER and SALLY LERNER in their capacities as members of a review panel appointed under the Canadian Environment Assessment Act |
Respondents
| REASONS FOR ORDER |
__________________
1Fisheries Act, R.S.C. 1985 c. F-14, as amended, section 35; Canadian Environmental Assessment Act, S.C. 1992 c. 37 ("CEAA") Section 25 and 29; and Federal Court Act , R.S.C. 1985 F-7, as amended, subsections 2(1) and 18(1).
2Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al, supra at page 138; Canadian Motion Picture Distributors Assn. v. Partners of Viewer"s Choice Canada, [1996] F.C.J. Nol 498 (F.C.A.); Mathias et al. v. Canada (1988) 144 F.T.R. 106 at p. 109 and 116; and Gingras v. Canadian security & Intelligence Service (1987), 19 C.P.R. (3d) 283.
3 Pharmacia Inc. v. Minister of National Health and Welfare (1994), 58 C.P.R. 209 (F.C.A.)
5 [1993]. 3 F.C. 557; 65 F.T.R. 127 (T.D.)
6Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al (1995), 176 N.R. 48 (F.C.A.) at pp. 54-55; Vancouver Island Peace Society et al v. Canada (Minister of National Defence) et al, [1994] 1 F.C. 102 at pp. 120 and 121; and Alcom et al v. Commissioner of Corrections (Can.) et al (1998), 156 F.T.R. 239.