Date: 19990222
Docket: A-676-98
CORAM: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
| UNION OF NOVA SCOTIA INDIANS, a body corporate, on behalf of itself and its members and the Acadia, Chapel Island, Eskasoni, Membertou, Schubenacadie, Wagmatcook, and Whycocomagh Indian Bands, and their members, and CONFEDERACY OF MAINLAND MICMACS, a body corporate, on behalf of itself and its members and the Afton, Annapolis, Bear River, Horton, Millbrook and Pictou Landing Indian Bands, and their members, and the ASSEMBLY OF NOVA SCOTIA MI"KMAQ CHIEFS |
Applicants
- and -
| MARITIMES AND NORTHEAST PIPELINE MANAGEMENT LTD., a body corporate, and MARITIMES AND NORTHEAST PIPELINE PARTNERSHIP, a limited partnership |
Respondents
Heard at Ottawa, Ontario, on Wednesday, February 17, 1999
Judgment rendered at Ottawa, Ontario, on Monday, February 22, 1999
| REASONS FOR JUDGMENT BY: NOËL J.A. |
| CONCURRED IN BY: THE CHIEF JUSTICE |
LÉTOURNEAU J.A.
Date: 19990222
Docket: A-676-98
CORAM: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
| UNION OF NOVA SCOTIA INDIANS, a body corporate, on behalf of itself and its members and the Acadia, Chapel Island, Eskasoni, Membertou, Schubenacadie, Wagmatcook, and Whycocomagh Indian Bands, and their members, and CONFEDERACY OF MAINLAND MICMACS, a body corporate, on behalf of itself and its members and the Afton, Annapolis, Bear River, Horton, Millbrook and Pictou Landing Indian Bands, and their members, and the ASSEMBLY OF NOVA SCOTIA MI"KMAQ CHIEFS |
Applicants
- and -
| MARITIMES AND NORTHEAST PIPELINE MANAGEMENT LTD., a body corporate, and MARITIMES AND NORTHEAST PIPELINE PARTNERSHIP, a limited partnership |
Respondents
REASONS FOR ORDER
NOËL J.A.
[1] The applicants brought a motion seeking an order that its outstanding notice of application for judicial review be deemed, in addition to an application for judicial review, an application for leave to appeal pursuant to section 22 of the National Energy Board Act .1 It asked further that these two proceedings be consolidated. In the alternative, the applicants sought an extension of time for the filing of an application for leave to appeal. This relief was requested because the applicants claimed that they were in error in filing an application for judicial review as section 22 of the National Energy Board Act provides for a right of appeal on questions of law and jurisdiction.
[2] The respondents brought a cross-motion alleging that a consolidation of the judicial review application with an application for leave to appeal would be improper due to section 18.5 of the Federal Court Act. This section reads as follows:
| Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. |
Par dérogation aux articles 18 et 18.1, lorsqu'une loi fédérale prévoit expressément qu'il peut être interjeté appel, devant la Cour fédérale, la Cour suprême du Canada, la Cour d'appel de la cour martiale, la Cour canadienne de l'impôt, le gouverneur en conseil ou le Conseil du Trésor, d'une décision ou d'une ordonnance d'un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d'un tel appel, faire l'objet de contrôle, de restriction, de prohibition, d'évocation, d'annulation ni d'aucune autre intervention, sauf en conformité avec cette loi. |
According to the respondents, where an Act of Parliament expressly provides for an appeal from a federal tribunal or board, a decision or order of such board is not subject to judicial review. As a result of the broad appeal provision in section 22 of the National Energy Board Act, the applicants are precluded from continuing their judicial review application, or from having an application for judicial review consolidated with an application for leave to appeal. With respect to the extension of time for the filing of an application for leave to appeal, the respondents claim that the applicants must show an arguable case.
[3] At the hearing of this motion, the applicants took the position that they in fact followed the correct procedure in bringing an application for judicial review since, as non-parties in the proceedings before the National Energy Board, they had no standing to appeal the Board"s decision. Thus, as persons aggrieved by the decision of the National Energy Board, they are not precluded from bringing an application for judicial review. In support of this position, the applicants rely on the decision of this Court in Telecommunications Workers Union v. Canada (Radio-Television and Telecommunications Commission)2 which held that the limitation contained in section 18.5 extends only to those who can exercise a right of appeal.
[4] The respondents contend that the result of this interpretation is to make available to non-parties a broader right of review and array of remedies than those available to parties under section 22 of the National Energy Board Act. According to the respondents, the better interpretation is that of this Court in Canada (Director of Investigation & Research) v. Imperial Oil Ltd3 where Mahoney J.A. sitting singly held that the existence of a right of appeal ousts the judicial review jurisdiction of the Court whether or not this right of appeal extends to the person seeking this remedy.4
[5] Accepting the uncontested assertion of the applicants that because they were not parties in the proceedings before the National Energy Board, they have no right of appeal, the only question is whether section 18.5 nevertheless operates to barr the applicants from bringing an application for judicial review.
[6] While section 18.5 of the Federal Court Act does limit judicial review "to the extent that [a decision or order] may be so appealed," this section must be read in conjunction with section 28(1) of the Federal Court Act . It provides in part:
| 28(1) The Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals:
(2) Sections 18 to 18.5, except subsection 18.4(2), apply, with such modifications as the circumstances require, in respect of any matter within the jurisdiction of the Court of Appeal under subsection (1) and, where they so apply, a reference to the Trial Division shall be read as a reference to the Court of Appeal. ... |
28(1) La Cour d"appel a compétence pour connaître des demandes de contrôle judiciaire visant les offices fédéraux suivants:
(2) Les articles 18 à 18.5 s"appliquent, exception faite du paragraphe 18.4(2) et compte tenu des adaptations de circonstance, à la Cour d"appel comme si elle y était mentionnée lorsque"elle est saisie en vertu du paragraphe (1) d"une demande de contrôle judiciaire. [...] |
Section 28(1) therefore provides this Court with jurisdiction to hear applications for judicial review of decisions of the National Energy Board despite the fact that such decisions may be appealed. It follows that section 18.5 cannot be interpreted as barring all applications for judicial review because of the existence of a right of appeal.
[7] This is the conclusion to which this Court came in Telecommunications Workers. There, Desjardins J.A. stated for the Court that:
| We are dealing, in the case at bar, not with a restriction to a right of appeal caused by legislative drafting, although one exists, but with a situation where because the applicant lacked status as a party before the CRTC, no possible redress would be available to it if judicial review is foreclosed. I am inclined to read section 18.5 of the Federal Court Act, particularly the words "to the extent that it may be so appealed", in a very restrictive way, in line with the case of Rich Colour Prints Ltd., with the effect that when a decision may not be appealed by a party, judicial review is available to it. I do not think that section 18.5 of the Federal Court Act is meant to foreclose judicial review in such circumstances.5 [emphasis added] |
[8] In my view, this is how the limitation embodied in section 18.5 ought to be construed, particularly when regard is had to the jurisdiction granted to this Court under section 28(1) of the Federal Court Act.
[9] For these reasons, the cross-motion should be dismissed and the applicants should be directed to proceed with their application for judicial review. Costs on both the motion and the cross-motion should be reserved to the panel hearing the judicial review application.
Marc Noël
J.A.
"I agree.
Julius A. Isaac, C.J."
"I agree.
Gilles Létourneau, J.A."
[10]
__________________1Section 22 of the National Energy Board Act reads as follows:
| 22. (1) An appeal lies from a decision or order of the Board to the Federal Court of Appeal on a question of law or of jurisdiction, after leave to appeal is obtained from that Court. (1.1) An application for leave to appeal must be made within thirty days after the release of the decision or order sought to be appealed from or within such further time as a judge of that Court under special circumstances allows.(2) No appeal lies after leave has been obtained under subsection (1) unless it is entered in the Federal Court of Appeal within sixty days from the making of the order granting leave to appeal.(3) The Board is entitled to be heard by counsel or otherwise on the argument of an appeal. | 22. (1) Il peut être interjeté appel devant la Cour d'appel fédérale, avec l'autorisation de celle-ci, d'une décision ou ordonnance de l'Office, sur une question de droit ou de compétence. (1.1) La demande d'autorisation doit être faite dans les trente jours suivant la publication de la décision ou de l'ordonnance ou dans le délai supérieur accordé par l'un des juges de la Cour en raison de circonstances spéciales.(2) Sous peine d'irrecevabilité, l'appel doit être inscrit devant la Cour d'appel fédérale dans les soixante jours qui suivent le prononcé de l'ordonnance accordant l'autorisation d'appel.(3) L'Office peut plaider sa cause à l'appel par procureur ou autrement. |
2[1993] 1 F.C. 231 (C.A.) [hereinafter Telecommunications Workers].
3(1990) 31 C.P.R. (3d) 284 (F.C.A.).
4At that time, the limitation was embodied in section 29 of the Federal Court Act.