K. F. Evans Ltd. v. Canada ( Minister of Foreign Affairs )
A-924-96
Strayer J.A.
29/1/98
8 pp.
Appeal from judgment ([1997] 1 F.C. 405) quashing Minister's refusal to issue export permit for certain logs-Minister refusing to further consider applications for export permits without recommendation from B.C. Timber Export Advisory Committee (T.E.A.C.)-Respondent submitting export application to T.E.A.C.-Latter determining logs not surplus to domestic needs-Minister refusing applications for export permits-Judicial review of refusals leading to decision now appealed from-Motions Judge referring matter back to Minister for reconsideration in accordance with reasons-Although appeal launched, Minister not seeking stay of Motions Judge's order-After reconsideration, Minister granting export permits in respect of same quantity of logs as originally applied for, but not same logs-Appeal moot-Minister already reconsidering original decision, issuing permits-No decision of this Court on appeal would have any practical value in respect of particular dispute because logs included in original application long since sold domestically, and logs covered by permit issued pursuant to reconsideration could not be retrieved-Criteria for whether Court should exercise discretion to hear appeal despite mootness set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 considered-(1) If appeal heard, could expect it to be argued in zealous, adversarial manner-(2) Little would be gained from further use of judicial resources for hearing of appeal because implications of decision under appeal not significant-That person given discretionary power must exercise discretion, neither bind himself to fixed conditions for its exercise nor leave decision to someone not contemplated by legislation granting discretion, only legal principle involved, and not in dispute-Finding of fact that Minister committed himself to not exercising discretion in favour of issuing permit unless having approval of T.E.A.C. in dispute, but cannot be decided on this motion-Some evidence in support of both points of view-Legal principle against fettering one's discretion clear, and no Minister properly advised should have any difficulty understanding how to avoid appearance or reality of fettering-(3) Whether, or to what degree, exercise of federal powers should be tied to policy preferences of particular provinces, best left to political branches of government-Open to Parliament or Governor in Council to clarify conditions for exercise of Minister's discretion, if clarification needed-Motions Judge correctly pointing out Minister should only take into account facts, advice pertinent to purpose for which discretion given-Logs originally placed on Export Control List during Second World War by virtue of Governor in Council's power under Export and Import Permits Act, s. 3(e) to ensure adequate supply, distribution in Canada for defence, other needs-Court already upholding use of s. 3(b) to support export control on B.C. short red cedar boards to promote processing in province into shingles, shakes in Teal Cedar Products (1977) Ltd. v. Canada, [1989] 2 F.C. 158 (C.A.)-If Minister exercising discretion as to whether to refuse export permit for logs covered by list established under s. 3(b), could have resort to advice, but not require approval of body such as T.E.A.C.-No new principle of law involved in Motions Judge's finding-Nothing of lasting value would be gained by Court reviewing findings of fact or of mixed law and fact on point-Court refusing to exercise discretion in favour of hearing moot appeal-Appeal dismissed-Export and Import Permits Act, R.S.C., 1985, c. E-19, s. 3(b),(e).