Date: 19980921
Docket: 98-T-6
BETWEEN:
THE INDUSTRIAL CAPE BRETON COMMUNITY ALLIANCE GROUP
ON THE SABLE GAS PROJECT
Applicant
- and -
SABLE OFFSHORE ENERGY PROJECT, MOBIL OIL CANADA
PROPERTIES, SHELL CANADA LIMITED, IMPERIAL
OIL RESOURCES LIMITED, NOVA SCOTIA RESOURCES LIMITED,
MARITIMES AND NORTHEAST PIPELINE PROJECT,
MARITIMES & NORTHEAST PIPELINE MANAGEMENT LTD. and
THE GOVERNMENT OF CANADA, AS REPRESENTED
BY THE GOVERNOR GENERAL IN COUNCIL
Respondents
REASONS FOR ORDER
MacKAY J.
[1] These reasons concern disposition of a motion by the applicant Alliance Group, filed on February 11, 1998, pursuant to s-s. 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended (the "Act") for an order for an extension of time to file an application for judicial review of a decision by the Governor General in Council, dated December 2, 1997.
[2] The application is unusual in that the applicant Alliance Group seeks to protect its position as that may be determined by a favourable decision in regard to another application for judicial review already filed in Court file T-2551-97 on November 25, 1997. By the latter application the applicant seeks judicial review and the setting aside of a decision reflected in its Report dated October 27, 1997, by a Joint Public Review Panel, which determined, inter alia, that studies of the long term impact of the Sable Gas Projects on the economy and the people of the Cape Breton Regional Municipality were beyond the scope of its review, and thus it did not consider the impact of the project on the socio-economic conditions of the economy and the people of that municipality. The basic relief sought in that application is that the Court order the Review Panel to file a statement on the socio-economic impact in relation to the Cape Breton Regional Municipality. In addition, that application also seeks relief in relation to the decision, also dated October 27, 1997, of the Commissioner for the Sable Gas Offshore Project, approving a Development Application on the basis of the Joint Public Review Panel's Report.
[3] After the first application for judicial review was filed (T-2551-97) in late November, counsel for the applicant sought information about any further approvals of the project. Upon further inquiry, on December 31, 1997, he was informed that on December 2, 1997, the Governor General in Council, pursuant to s-s. 37(1.1) of the Canadian Environmental Assessment Act, had approved and published a response to the Report of the Panel. That response is in considerable detail, responding to 46 recommendations of the Joint Public Review Panel's Report.
[4] Upon learning of the decision of the Governor General in Council, counsel for the applicant sent a copy of the decision to the Alliance Group. Upon receiving instructions he filed a motion on January 8, 1998 seeking to amend the originating notice of motion filed in Court file T-2551-97 to include a request for judicial review of the decision of the Governor General in Council. That motion was adjourned sine die by my colleague Mr. Justice Muldoon on January 13, 1998. Thereafter, a second originating notice of motion dated February 11, 1998 was presented by the applicant and served upon the respondents with the motion now before the Court for an extension of time to file the originating motion. Judicial review of the decision of the Governor General in Council, is sought insofar as it is based upon the error said to have been committed by the Joint Public Review Panel and by the Commissioner. This judicial review is sought by originating notice of motion separate from that in T-2551-97. It would satisfy the requirement under Rule 1602(4) of the Court's Rules, as they applied at all relevant times, that an application for judicial review pursuant to s. 18.1 of the Act shall be in regard to a single decision.
[5] The principal purpose of the second application for which leave to file is sought, from the perspective of the applicant, is that, if successful in its application in T-2551-97, the Alliance Group would be in a position to preserve its standing to question the decision of the Governor General in Council in relation to the same matter as, and based upon, the Report of the Joint Public Review Panel. If the applicant would be unsuccessful in the application in T-2551-97, it is said by counsel that it would not then pursue the possibility of relief against the Governor General in Council. Moreover, if it is successful it would only seek such relief if the Governor General in Council were to ignore any process for review of the environmental assessment by the Review Panel as might be ordered by the Court.
[6] When the application for an extension of time was heard, counsel for the applicant was heard. The applicant is an organization formed by labour and community-based groups and organizations and the municipal government of Cape Breton County, representing a wide variety of interests. All are concerned that the socio-economic effects of the Sable Offshore Project upon the economy and the people of the municipal unit be assessed before the project is approved to proceed with production of gas and construction of pipeline facilities. At the hearing counsel were also heard on behalf of Sable Offshore Energy Project, a consortium consisting of the respondents Mobil Oil Canada Properties, Shell Canada Limited, Imperial Oil Resources Limited, and Nova Scotia Resources Limited, here collectively referred to as "SOEP". Submissions were also heard from counsel acting for the respondents Maritimes & Northeast Pipeline Project and Maritimes & Northeast Pipeline Management Ltd., and from counsel for the Attorney General of Canada on behalf of the respondents named in the style of cause as "The Government of Canada, as Represented by the Governor General in Council".
[7] Following the hearing, while decision on the motion was under reserve, counsel for all parties except the Attorney General, by written submissions, indicated their consent, with which counsel for the Attorney General indicated approval, to varying the style of cause to delete reference to the "Government of Canada as represented by the Governor General in Council" as a respondent in these proceedings. That advice is consistent with the process in judicial review as set out by the Court of Appeal in Canadian Human Rights Commission v. Canada (Attorney General) and Bernard (1994), 164 N.R. 361 (F.C.A.). The order now issued so directs, in accord with that decision.
[8] Subsequently, following the decision of my colleague Mr. Justice Gibson in the Friends of the West Country Association v. The Minister of Fisheries and Oceans et al., (unpublished, Court file T-1893-96, July 7, 1998 (F.C.T.D.), additional brief written submissions were made by some of counsel concerned herein in regard to the standard of judicial deference to be paid by the Court to decisions of environmental assessors in a case such as this.
[9] The essential background to these proceedings can be briefly stated. The Joint Public Review Panel on the Sable Gas Projects was appointed in accord with an agreement between the governments of Canada and of Nova Scotia to conduct an environmental assessment of the Sable Offshore Energy Project and the Maritimes Project for development of the offshore natural gas resources near Sable Island and the transportation of that gas to markets in the Atlantic Provinces and the United States. The assessment by the panel was to be pursuant to the Canadian Environmental Assessment Act, S.C. 1992, c. 37 ("CCEA") and the Nova Scotia Environment Act, S.N.S. 1994-95, c. 1.
[10] The Report of the Panel dated October 27, 1997 was completed only after some twenty public information and scoping sessions held throughout Nova Scotia and New Brunswick including 56 hearing days in Halifax and Fredericton. Some of the constituent organizations of the the applicant, the Industrial Cape Breton Community Alliance Group, participated in the public hearing process of the Joint Public Review Panel.
[11] The issue before the Court is whether discretion should be exercised to grant an extension of time for the applicant to commence judicial review proceedings in respect of the decision of the Governor General in Council. The basis on which the exercise is to be considered is well established (See e.g. Grewal v. Minister of Employment and Immigration (1985), 63 N.R. 106 (F.C.A.) and Council of Canadians et al. v. Director of Investigation and Research, Competition Act, et al. (1997), 212 N.R. 254 (F.C.A.)). The factors to be assessed include whether there is an adequate explanation for the failure to act in timely fashion, whether the intention to proceed was formed within the applicable time period and was pursued with reasonable diligence, and whether the applicant has an arguable case. Ultimately, as Thurlow, C.J. stated in Grewal, (supra, at p. 10) the question for the Court is whether it is in the interests of justice to grant an extension of time.
[12] In this application the respondents urge that there is no evidence to explain the applicant's delay in proceeding or demonstrating due diligence in pursuing the matter, and further that the applicant has not demonstrated an arguable case on the merits.
[13] The evidence in support of the application for an extension of time is provided by two affidavits, sworn February 11, 1998 and March 5, 1998, by Angela Green, a barrister of the firm of counsel for the applicant. It is urged that evidence does not establish due diligence in learning of the decision of the Governor General in Council, a decision that was a matter of public record discoverable by appropriate inquiry after December 2, 1997. However, the Act, by s-s. 18.1(2) provides, subject to extension by the Court, that an application for judicial review shall be brought within 30 days of the applicant's learning of the decision sought to be questioned.
[14] In this case, the evidence is that counsel for the applicant learned of the decision of the Governor General in Council on December 31, 1997. The motion thereafter dated January 8, 1998 to amend the originating motion in Court file T-2551-97 was clearly an indication within the time limited by s-s. 18.1(2) of the applicant's intent to question the decision here in issue, but the matter was not pursued. Indeed, the motion was adjourned sine die by Muldoon J. on January 13, 1998, without argument on the merits. No explanation is offered in the affidavits of Ms. Green about the further delay before filing of the separate application now before the Court for an extension of time. While the delay, to February 11, 1998 when the application was filed is not long, it simply is not explained though it is averred that "the applicant formed an intention to file an Originating Notice of Motion requesting judicial review of the Governor General in Council's decision within the time limits contemplated by the Federal Court Act", and further that the respondents had notice of the applicant's intent to bring an application for review, implicitly by the amending motion adjourned on January 13, 1998, and that the respondents will not be prejudiced by the granting of an extension of time. Both those allegations may be accurate but evidence is lacking of due diligence in pursuing the matter by proper application within 30 days of learning of the decision on December 31, 1997.
[15] Even if I were to find that the circumstances of delay here, in the interests of justice, ought not to be a bar to proceedings for judicial review, I am not satisfied that the application proposed to be filed with an extension of time sets out a basis for this Court to conclude that there is a reasonable chance of success, or even an arguable case. The basis alleged in the grounds set out in the proposed originating notice of motion, which is here not supported by an affidavit, is not that there is error internal to the decision of the Governor General in Council, but rather that this decision, approving the response of the Government of Canada to recommendations made by the Panel, errs because that response is based on a Report in which the Joint Public Review Panel erred, in its determination of its jurisdiction (as the applicant argues), or in its determination of the proper scope of its task as a matter within its jurisdiction (as the respondents argue).
[16] To the extent that there is argument about error made by the Joint Public Review Panel that is a matter raised and to be determined by proceedings in Court file T-2551-97. It cannot be the same matter that is at issue in relation to the decision of the Governor General in Council, without some other basis for questioning the latter decision, e.g., that the decision was in error on the basis of matters in the record before the Governor in Council.
[17] In my opinion, the proposed originating notice of motion for which an extension of time to file is sought does not allege a basis on which a reasonable case, or even an arguable case for success can be foreseen.
[18] Submissions in writing on behalf of the parties in July 1998, concerning the decision of my colleague Gibson J. in The Friends of the West Country Association v. Minister of Fisheries and Oceans et al. (unreported, Court file T-1893-96, July 7, 1998 (F.C.T.D.)), concern the standard for judicial review of decisions made in the course of environmental assessments. In my opinion, in this case those concerns arise in assessing the decision of the Joint Public Review Panel, the matter raised in Court file T-2551-97, not in assessing the decision of the Governor General in Council.
Conclusion
[19] In the circumstances of this case I am not persuaded that an extension of time should be allowed to commence proceedings to review the decision of the Governor General in Council. The application for an extension of time is thus dismissed.
[20] In submissions by the Attorney General of Canada, it is urged, inter alia, that this application does not demonstrate that "the Governor General in Council will, if an error is demonstrated on the part of the Panel, refuse to correct his error, if in law he is required to do so." Clearly, it would be expected that, if the applicant is successful in the proceedings in T-2551-97, and the Panel is ordered to review its Report and does so, the Governor General in Council would review its own decision based on the response of the Government of Canada to any revised recommendations of the Panel.
[21] The respondents SOEP, and Maritimes and Northeast Pipeline Project and Maritimes and Northeast Pipeline Management Ltd., request costs of this application. The Attorney General of Canada, who appeared by counsel, does not request costs. For the applicant it is urged that the usual rule is that there is no award of costs on this sort of application with respect to judicial review, particularly in a case where the applicant is a public interest group, and costs should not here be awarded, presumably against the applicant. Under the Federal Court Rules as they applied at the time of this application was heard, Rule 1618 precluded the award of costs in proceedings by judicial review unless there were special reasons. While that is no longer the rule, and while the application before me is, strictly speaking, not one for judicial review, but for an extension of time to proceed, in my opinion the motion is preliminary to proceedings for judicial review and the principle of Rule 1618 as it then applied should be applicable to this proceeding in the absence of special circumstances. In my view, there are no special circumstances that would warrant an award of costs against the applicant in relation to this motion. Thus, I decline to award costs of this application.
[22] I do direct, in the event my decision should be questioned by appeal, that the style of cause be amended to delete, as a respondent, "The Government of Canada, as Represented by the Governor General in Council". The Order now issued, so provides.
W. Andrew MacKay
Judge
OTTAWA, Ontario
September 21, 1998.