Date: 19980129
Docket: A-924-96
CORAM: MARCEAU, J.A.
STRAYER, J.A.
LÉTOURNEAU, J.A.
BETWEEN:
THE MINISTER OF FOREIGN AFFAIRS,
Appellant
(Respondent),
- and -
K. F. EVANS LTD.,
Respondent
(Applicant).
REASONS FOR JUDGMENT
(Delivered from the bench at Vancouver,
British Columbia on Thursday, January 29, 1998)
STRAYER, J.A.
[1] We must first deal with a motion to dismiss this appeal for mootness. The appeal is from a decision of October 28, 1996 of the Trial Division which quashed a decision of the appellant refusing an export permit for certain logs. The motion judge referred the matter back to the appellant Minister for reconsideration in accordance with her reasons.
[2] Applications for an export permit under the Export and Import Permits Act1 had been submitted to the appellant by the respondent on February 21, 1995 and April 4, 1995. The appellant advised the respondent on May 2, 1995 that he would not consider further the applications for permits unless he had a recommendation from the provincial Timber Export Advisory Committee (T.E.A.C.), of the province of British Columbia. The respondent submitted its export application to T.E.A.C. and T.E.A.C. determined that the logs in question were not surplus to domestic British Columbia needs. An official of the appellant then advised the respondent on May 15, 1995 that:
| "[U]pon consideration of the recommendations of T.E.A.C. and our review of the documentation you have provided, your applications for permits to export... are hereby refused ..."2 |
The respondent sought judicial review of these refusals in the proceeding which led to the decision now appealed from.
[3] After the Trial Division judge by that decision quashed the Minister's refusal of the export permits, this appeal was launched. The appellant did not, however, seek a stay of the trial judge's order and proceeded to a "reconsideration" of his original refusals as required by that order. It is not in dispute that, some 18 months having elapsed since the original export permit applications were submitted, the particular logs covered by them had by that time been sold domestically as they were in danger of deterioration. Some modifications of the reconsidered applications were therefore made in respect to the particulars of the logs to be exported. In February 1997, the appellant after reconsideration granted export permits to the respondent in respect of the same quantity of logs as originally applied for but not, of course, in respect of the same logs.
[4] The respondent has brought this motion for dismissal for mootness because the appellant has already reconsidered his original decision as required by the order under appeal and has issued permits for the same quantity of logs as was included in the original application. The respondent contends that no decision of this Court on appeal would have any practical value in respect of this particular dispute because the logs included in the original application have long since been sold domestically, and the logs covered by the permit issued pursuant to the reconsideration ordered by the Trial Division have almost all been sold abroad and could not be retrieved even if we were to hold that the original refusal of permits was valid and the reconsideration should not have occurred. The respondent has not yet filed a memorandum of fact and law in the appeal and says it should not be forced to incur the additional costs to contest further an appeal that is in any event futile.
[5] The appellant contends, on the other hand, that it is important for the future guidance of the Minister, in exercising his powers under the Export and Import Permits Act, with respect to the export of logs, to know whether he can seek advice from the T.E.A.C. of British Columbia. It is suggested that the Minister has been obliged, as a result of the order under appeal, to adopt an "interim policy" which is not working well, and the implication is that if this Court were to reverse that order the Minister would revert to his previous policy which, to put it neutrally for present purposes, involved seeking the input of T.E.A.C.
[6] We consider that for the reasons argued by the respondent the appeal is moot. However, both parties agree that if we exercise a discretion as to whether to hear the appeal despite its mootness, we should do so be in accord with the criteria laid down by the Supreme Court of Canada in Borowski v. A.G.3. We now turn to these criteria.
[7] The first criterion requires us to consider whether we could, if the appeal were heard, expect it to be argued in a zealous and adversarial manner. We have no doubt that this must be answered in the affirmative.
[8] The second criterion requires us to consider whether, in the special circumstances, it would be a good use of judicial resources to resolve the issues raised, for future guidance of these parties or others. We believe this question must be answered in the negative. First, it is clear that substantial further time of the Court could be required for a hearing of the appeal, given that over one-half of a day has already been consumed in argument over the issue of mootness. There would also be substantial additional costs to the respondent of a full hearing for which, in the normal course, it would not be fully compensated. The question then is - what would be gained from this further use of resources for the hearing of the appeal? We think very little, and this because we think the implications of the decision under appeal are not as significant as the appellant fears. As the learned motion judge said:
| "There is little dispute about the law applicable to the facts of this case. What is in dispute are the conclusions of fact to be drawn."4 |
It is clear to us that the motion judge based her order on only one of the grounds argued before her: namely, that the Minister had fettered the exercise of the discretion, granted to him by Parliament in section 7 of the Export and Import Permits Act, to grant or withhold export permits. He had fettered this discretion because, in the motion judge's view of the facts, he had adopted a policy of not granting permits for export of logs from British Columbia unless such export was approved by T.E.A.C., the provincial agency. Put another way by the motion judge, the Minister had abdicated the responsibility placed on him by Parliament to exercise his discretion.
[9] This, in our view, was the essence of the judge's reasons for her order. The only legal principle involved was that a person given a discretionary power must exercise that discretion and not either bind himself to fixed conditions for its exercise or in effect leave the decision to someone not contemplated by the legislation granting the discretion. Both parties agree that this proposition of law is clear and not in dispute.
[10] What is in dispute is the motion judge's findings of fact that the Minister had committed himself to not exercising his discretion in favour of issuing a permit unless he had the approval of T.E.A.C., the provincial body. We must not and can not decide that issue of fact on this motion: suffice it to say that there appears to be some evidence in support of both points of view. But there would be little value to the parties if we were to decide it: it could have no effect on the past, as the respondent correctly argues, and it would provide very little useful guidance for the Minister in the future. The fact is that the legal principle against fettering one's discretion is quite clear and no Minister properly advised should have any difficulty understanding how he may avoid the appearance or reality of fettering.5
[11] Thus, we reject the view of the appellant that the decision under appeal has much broader implications because it may preclude the Minister from seeking outside advice such as that of T.E.A.C. We can find no basis for that in the reasons of the motion judge.
[12] Further, although counsel for the appellant argues that the decision of the motion judge has in effect overturned a long-standing policy and her decision should therefore be carefully reviewed by this Court, the record indicates that the Minister and his officials were and are in the process of reviewing that policy.6 Little benefit would therefore derive from us pronouncing on the validity of the policy in force up to 1995.
[13] The third criterion from Borowski requires a court to consider whether, in the absence of a real dispute to be resolved between the parties, it should intrude into the role of other branches of government. Whether or to what degree the exercise of federal powers should be tied to the policy preferences of particular provinces is very much a question best left to the political branches of government. We believe it is open to Parliament or the Governor in Council to clarify the conditions for the exercise of the Minister's discretion, if clarification is needed. For example, it is probably open to the Governor in Council, in the exercise of its powers to establish Export Control Lists, to clarify the considerations which the Minister can take into account in the export of logs. The motion judge pointed out, correctly in our view, that the Minister should only take into account facts and advice pertinent to the purpose for which the discretion is given. Logs were originally placed on an Export Control List during the Second World War by virtue of the Governor in Council's power under (now) paragraph 3(e) to establish such lists:
| "to ensure that there is an adequate supply and distribution of the article in Canada for defence or other needs." |
The motion judge declined to consider whether the policy of the province of British Columbia to encourage upgrading or processing of logs in the province prior to export fell within the "needs" referred to in paragraph 3(e). But if there is any doubt on that point in the mind of the Minister and his advisors it is open to them to advise the Governor in Council to establish an Export Control List for logs under the authority of paragraph 3(b) of the same Act, (enacted after the List in question in the present case was established) which authorizes the establishment of such a list:
| "to ensure that any action taken to promote the further processing in Canada of a natural resource that is produced in Canada is not rendered ineffective by reasons of the unrestricted exportation of the natural resource; ..." |
In the Teal Cedar Products case this Court has already upheld the use of this paragraph to support export control on B.C. short red cedar boards in order to promote their processing in the province into shingles and shakes.7 It seems clear that if the Minister were exercising a discretion as to whether to refuse an export permit for logs covered by a list established under paragraph 3(b) he could have resort to the advice (but not require the approval) of a body such as T.E.A.C.
[14] Before leaving the exercise of discretion as to mootness, we would note (although the matter was not seriously argued before us) that the motion judge also found there to have been a lack of fairness in the refusal of a permit.8 That decision is also under appeal here. However, no serious case was made for an appeal being continued on this basis, nor could it. No new principle of law was involved in this finding by the motion judge and nothing of lasting value would be gained by this Court reviewing her findings of fact or of mixed law and fact on this point.
[15] For these reasons we consider that the appeal is moot, and that we should not exercise a discretion in favour of hearing it. The appeal should therefore be dismissed. The respondent is entitled to its costs of this motion.
(Sgd.) "B.L. Strayer"
J.A.
Vancouver, British Columbia
January 29, 1998
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
REASONS DATED: January 29, 1998
COURT NO.: A-924-96
STYLE OF CAUSE: THE MINISTER OF FOREIGN AFFAIRS
v.
K. F. EVANS LTD.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 29, 1998
REASONS FOR JUDGMENT OF THE COURT BY: STRAYER, J.A.
CONCURRED IN BY: MARCEAU, J.A.
LÉTOURNEAU, J.A.
APPEARANCES:
Ms. Darlene Patrick for Appellant
Mr. Andrew Pearson for Respondent
SOLICITORS OF RECORD:
George Thomson for Appellant
Deputy Attorney General
of Canada
Mr. Andrew Pearson for Respondent
Camp Church & Associates
Vancouver, B.C.
__________________
2 vol. 2 Appeal Book at 285. See also letter of another official of May 31, 1995, ibid at 289.
5 Cf. Yhap v. Canada (1990), 9 Imm.L.R. (2d) 243 (F.C.T.D.) which found certain guidelines to fetter a discretion, and Vidal v. Canada (1991), 12 Imm.L.R. (2d) 123 (F.C.T.D.) where subsequently revised guidelines were upheld.
6 See vol. 4, Appeal Book at 588-92; Affidavit of Keith Evans dated November 13, 1997, Exhibit "Q".
7 Teal Cedar Products (1977) Ltd. v. Canada, [1989] 2 F.C. 158 at 163, 170-3 (F.C.A.).