Date: 19980923
Docket: 98-T-37
PRESENT: The Honourable Mr. Justice Rouleau
OTTAWA, Ontario, the 23rd day of September 1998
Between:
STRATÉGIES ST-LAURENT
SOCIÉTÉ POUR VAINCRE LA POLLUTION SVP
GREAT LAKES UNITED
LA SOCIÉTÉ D'AMÉNAGEMENT DE LA BAIE LAVALLIÈRE INC.
COMITÉ ZONE D'INTERVENTION PRIORITAIRE (ZIP)
DU LAC ST-PIERRE
Plaintiffs
And:
THE HONOURABLE CHRISTINE STEWART, in her capacity as Minister
of the Environment
MONTREAL PORT CORPORATION
FISHERIES AND OCEANS CANADA
Defendants
ORDER
[1] The motion is dismissed with costs to the defendants.
P. ROULEAU
JUDGE
Certified true translation
M. Iveson
Date: 19980923
Docket: 98-T-37
Between:
STRATÉGIES ST-LAURENT
SOCIÉTÉ POUR VAINCRE LA POLLUTION SVP
GREAT LAKES UNITED
LA SOCIÉTÉ D'AMÉNAGEMENT DE LA BAIE LAVALLIÈRE INC.
COMITÉ ZONE D'INTERVENTION PRIORITAIRE (ZIP)
DU LAC ST-PIERRE
Plaintiffs
And:
THE HONOURABLE CHRISTINE STEWART, in her capacity as Minister
of the Environment
MONTREAL PORT CORPORATION
FISHERIES AND OCEANS CANADA
Defendants
REASONS FOR ORDER
ROULEAU J.:
[1] This is a motion by the plaintiffs for an extension of time to submit an application for judicial review to compel the defendant, the Honourable Christine Stewart, in her capacity as Minister of the Environment, to refer the project for selective dredging of the shoals of the St. Lawrence River maritime channel between Montreal and Cap à la Roche to an environmental review panel and fix its terms of reference.
[2] In his order dated August 17, 1998, dismissing an application for judicial review, Mr. Justice Teitelbaum of this Court determined that the starting point for calculating the time the plaintiffs had for filing and application for judicial review was a letter dated May 6, 1998. In the reasons for his order, he also determined that the plaintiffs were out of time, without prejudice to their right to seek an extension of time for filing an application for judicial review of the decision of the Minister of the Environment. On September 9, 1998, in response to that decision, the plaintiffs filed the present motion.
[3] At the hearing in Montréal on September 14, 1998, counsel for the plaintiffs argued that under the Canadian Environmental Assessment Act, the CEAA, the Minister may at any time refer a project to an environmental review panel and that Stratégies St-Laurent had been asking the Minister since June 7, 1990 for public hearings to be held to examine the project proposed by the defendant Montreal Port Corporation. He submits that negotiations continued until July 16, 1990 and that the question of the right to seek judicial review being extinguished was never raised.
[4] He submits that the project involving the dredging of the St. Lawrence River between Montréal and Cap à la Roche would displace approximately 200,000 cubic metres of contaminated sediments, and that several municipalities and even the Quebec Minister of Environment and Wildlife had asked for public hearings to examine the environmental impact.
[5] Furthermore, he submits that it would be in the interests of justice for the Court to allow the extension of time; that several of the plaintiffs were not formally notified of the decision by the federal Minister of the Environment; that it would be desirable to allow the public to participate in hearings; and that the Minister should refer this project to an environmental review panel pursuant to section 28 of the Act.
[6] The affidavits in support of the defendants" reply state that the Minister of Fisheries and Oceans filed environmental studies in 1996 and that since that time the plaintiffs have repeatedly requested that the project be referred to an environmental review panel; that after authorization was given by the Minister of Fisheries and Oceans, the necessary authorizations were issued in March 1998; that the work commenced on August 28, 1998; and that any delay can only have adverse consequences.
[7] The defendants submit that under the Federal Court Act, the plaintiffs are required to file an application for judicial review within thirty days after the time the impugned decision was first communicated. Counsel submits that even though in his order dated August 17, 1998, Teitelbaum J. seemed to find that the date of the impugned decision was May 6, 1998, it is not disputed that the authorizations for the dredging project were issued on March 19, 1998. In a press release also issued in March 1998, the Minister indicated that there would be no public review of the project. Counsel for the defendants submits that the plaintiffs could have filed an application for judicial review at that point. In fact, on May 6, 1998, the federal Minister of the Environment wrote to one of the plaintiffs to confirm that there would be no public review of the project by an environmental review panel. The plaintiffs did not file an application for judicial review, however, until July 20, 1998.
[8] Counsel for the defendants submits that if the plaintiffs are to obtain an extension of time, the onus is on them to explain the reasons for the delay in a satisfactory manner, by demonstrating that the application is serious and that the extension would not prejudice the parties.
[9] The defendants further submit that no explanation which could justify granting the extension was given. The plaintiffs should have realized in March 1998 that there would be no public review of the project. At the very least, the plaintiffs should have realized on May 6, 1998 that there would be no public review and they should have challenged the decision immediately rather than simply entering into discussions with the defendants.
[10] Counsel for the defendants submits that the process provided in the CEAA was followed and that this process was not challenged in the evidence submitted by the plaintiffs.
[11] He further submits that the allegation by the plaintiffs that the screenings were questionable is without merit.
[12] He submits that the plaintiffs do not allege any breach of the Act and that they simply contend that the Minister must direct the referral to a review panel under section 28 of the CEAA. The defendants submit that the section creates a purely discretionary power which the Minister may exercise without restriction and that mandamus cannot be used to compel the exercise of a discretionary power.
[13] It is clearly established in the case law that an application for extension of time cannot be allowed except in circumstances where the entire period of the delay can be justified and where the defendant will not be prejudiced.
[14] The only reason given by the plaintiffs to justify the delay is that they were in discussions or negotiations with the authorities of the Montreal Port Corporation.
[15] I am not satisfied in the instant case that the Minister exercised her discretion without legitimate reasons. I also do not believe that she was necessarily required to refer the dredging project to an environmental review panel under the CEAA. Mandamus will only be granted if the person involved is in breach of his or her obligations.
[16] In Canada Parks and Wilderness Society v. Banff National Park (1994), 84 F.T.R. 273, the Federal Court of Appeal upheld the proposition that when permits are authorized or issued, the Court cannot intervene.
[17] In the case at bar, the dredging project has already been underway for more than a month and the permits were authorized in March 1998. It is accordingly clear that both the balance of convenience and the irreparable harm test favour the defendants.
[18] While it is true that only two of the plaintiffs were directly informed by letter, it should be noted that a press release was issued in March 1998 informing all interested or concerned persons that the project would be proceeding without any additional environmental assessment. The Minister is certainly not required to notify all of the parties and the Act does not require that the Minister be aware in advance of all groups which might have an interest. In the instant case, a press release was issued and I am satisfied that this constitutes sufficient notice.
[19] The motion is dismissed with costs to the defendants.
P. ROULEAU
JUDGE
OTTAWA, Ontario
September 23, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: 98-T-37
STYLE OF CAUSE: STRATÉGIES ST-LAURENT ET AL.
v. THE HONOURABLE CHRISTINE STEWART ET AL.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 14, 1998
REASONS FOR JUDGMENT BY ROULEAU J.
DATED: September 23, 1998
APPEARANCES:
Normand Laurendeau
for the plaintiffs
Linda Mercier
Micheline Van Erum
for the defendants
The Honourable Christine Stewart
Fisheries and Oceans Canada
Sébastien Grammond
for the defendant
Montreal Port Corporation
SOLICITORS OF RECORD:
Mondor Fournier
Montréal, Quebec
for the plaintiffs
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
for the defendants
The Honourable Christine Stewart
Fisheries and Oceans Canada
Byers Casgrain
Montréal, Quebec
for the defendant
Montreal Port Corporation