A-823-77
AGIP S.p.A. (Applicant)
v.
Atomic Energy Control Board, Minister of
Energy, Mines and Resources, Minister of Indus
try, Trade and Commerce, Secretary of State for
External Affairs and Madawaska Mines Limited
(Respondents)
Court of Appeal, Jackett C.J., Le Dain J. and
MacKay D.J.—Toronto, April 20 and 21; Ottawa,
May 24, 1978.
Judicial review — Jurisdiction — Application to quash s. 28
application for judicial review — Decision for which judicial
review sought was made under Atomic Energy Control Act —
Whether or not what are attacked in s. 28 application are
decisions or orders within meaning of s. 28 — If they are
decisions or orders, whether they are only administrative, or
judicial or quasi-judicial — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 2, 28 — Atomic Energy Control Act,
R.S.C. 1970, c. A-19, ss. 1, 2, 3(1), 7, 9(d) — Atomic Energy
Control Regulations, SOR/74-334, ss. 5(1), 7(4),(5).
This is a motion to quash this section 28 application on the
ground that the decisions attacked thereby do not fall under
section 28 of the Federal Court Act. The applicant relies on the
Atomic Energy Control Act as being the source of the decisions
attacked. The attack made by the Attorney General is twofold:
firstly, what are attacked are not and do not purport to be
decisions or orders within the meaning of section 28; and
secondly, if they are decisions or orders, they do not fall within
section 28 because they are administrative decisions or orders
not required by law to be made on a judicial or quasi-judicial
basis.
Held, the application to quash is allowed for reasons
advanced in the second ground of attack. Decisions under
Regulation 7(4) and (5) are clearly administrative decisions.
Nothing in the statute or in the Regulations requires that those
decisions be made on a judicial or quasi-judicial basis, and
there is no implied requirement under the jurisprudence that
they be so made. It cannot be inferred that a decision concern
ing the granting of an export permit was to be made otherwise
than as a purely administrative matter where the responsible
Minister is accountable exclusively to Parliament. A section 28
application should not be quashed at a preliminary stage on the
first ground of attack unless it is concluded that it is not fairly
arguable—either on material that is already before the Court
or that is foreshadowed thereby—that those decisions or orders
attacked are within section 28. No concluded opinion on the
question raised by that ground can be formed at this prelim
inary stage.
Per Le Damn J.: This section 28 application should be dis
missed for the reasons given by Jackett C.J. Viewed in isolation
from the licensing function as a whole and the broad nature of
the ministerial power to make directions under the Act and
Regulations, the particular determination—whether the world
market value of uranium as set by an independent expert was
compatible with current world prices—might appear to be one
that was required by law because of its essential nature, to be
made on a judicial or quasi-judicial basis. That determination
cannot be so isolated, although fairness required that, in the
process of consideration leading to the decision as to whether
an export licence should be granted, the parties to the contract
be given an opportunity to make representations as to current
world prices.
Re Clark and Attorney-General of Canada (1978) 17
O.R. (2d) 593, referred to. Minister of Manpower and
Immigration v. Hardayal [1978] 1 S.C.R. 470, considered.
APPLICATION.
COUNSEL:
W. L. N. Somerville, Q.C., and B. Keith for
applicant.
G. W. Ainslie, Q.C., W. P. D. Elcock and P.
Evraire for respondents other than Madawas-
ka Mines Ltd.
R. L. Falby for Madawaska Mines Ltd.
SOLICITORS:
Borden & Elliot, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents other than Madawaska Mines
Ltd.
Day, Wilson, Campbell, Toronto, for Mada-
waska Mines Ltd.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a motion to quash this
section 28 application on the ground that the
decisions attacked thereby do not fall under sec
tion 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10.
The relevant provisions of the Federal Court
Act are:
2. In this Act
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada, other than any such body
constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, 1867;
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
At the outset it is to be noted that the jurisdic
tion conferred on this Court by section 28(1) is to
set aside a decision or order of a federal board,
commission or other tribunal other than a decision
or order of an administrative nature not required
by law to be made on a judicial or quasi-judicial
basis and that a federal board, commission or
other tribunal is defined by section 2 of the Feder
al Court Act to be, with certain exceptions, any
body or person having, exercising or purporting to
exercise jurisdiction or powers under a federal
statute. The statute upon which the applicant
relies as being the source of the decisions attacked
is the Atomic Energy Control Act, R.S.C. 1970, c.
A-19, which reads in part:
WHEREAS it is essential in the national interest to make
provision for the control and supervision of the development,
application and use of atomic energy, and to enable Canada to
participate effectively in measures of international control of
atomic energy which may hereafter be agreed upon; Therefore,
His Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows:
1. This Act may be cited as the Atomic Energy Control Act.
2. In this Act
"Minister" means the member of the Queen's Privy Council for
Canada designated by the Governor in Council as the Minis
ter for the purposes of this Act;
"prescribed substances" means uranium, thorium, plutonium,
neptunium, deuterium, their respective derivatives and com
pounds and any other substances that the Board may by
regulation designate as being capable of releasing atomic
energy, or as being requisite for the production, use or
application of atomic energy;
3. (1) There is hereby constituted a body corporate to be
called the Atomic Energy Control Board for the purposes
hereinafter set out and with powers exercisable by it only as an
agent of Her Majesty.
7. The Board shall comply with any general or special
direction given by the Minister with reference to the carrying
out of its purposes.
9. The Board may with the approval of the Governor in
Council make regulations
(d) regulating the production, import, export, transporta
tion, refining, possession, ownership, use or sale of prescribed
substances and any other things that in the opinion of the
Board may be used for the production, use or application of
atomic energy;
Regulations made under that Act [Atomic
Energy Control Regulations, SOR/74-334] read
in part:
5. (1) No person shall
(a) import or export any prescribed substance, or
(b) export any prescribed item,
except in accordance with a licence issued pursuant to
section 7.
7. ...
(4) Subject to subsection (5), the Board or a designated
officer may issue a licence for any purpose referred to in section
5 upon receipt of a written application from the person requir
ing such licence.
(5) A licence to export a prescribed substance shall not be
issued unless the Board is satisfied that the price and quantity
of the prescribed substance in respect of which the application
referred to in subsection (4) is made meet the criteria, if any,
respecting price levels and quantities that may be specified in
the public interest in a direction given to the Board by the
Minister.
Pursuant to the Rules of this Court governing
the creation of a record on which a section 28
application may be decided, the Atomic Energy
Control Board had deposited in the Court copies of
certain documents from which some idea may be
formed as to the nature of the decisions attacked
by the section 28 application, the body of which
reads:
TAKE NOTICE that the applicant herein applies to the Federal
Court of Appeal pursuant to Section 28 of the Federal Court
Act to have reviewed and set aside the decision made by the
respondent Ministers and embodied in the Direction given by
the respondent Minister of Energy, Mines and Resources to the
respondent Board (the gist of which Direction was first com
municated to the applicant on the 31st day of October, 1977) to
the effect that export licences not be issued by the respondent
Board to the applicant in respect of sales of uranium oxide to
the applicant by Madawaska Limited in 1977 if such sales took
place at a price less than $42.00 per pound, on the ground that
in making such decision and in giving such Direction the
respondent Ministers acted contrary to law and beyond their
jurisdiction;
AND TAKE NOTICE that the applicant also hereby applies to
have reviewed and set aside the decision made by the respond
ent Board and communicated to the applicant by a telex dated
October 31, 1977, adding to the order or decision of the Board
communicated in its letter of June 14, 1977 to Nels W.
Stalheim, a further term to the effect that the Board would not
permit a transfer of possession from Madawaska Mines Lim
ited to the applicant or any person on its behalf of uranium
oxide purchased by the applicant from Madawaska Mines
Limited during 1977 unless and until the sum of $42.00 per
pound was paid by the applicant to Madawaska Mines Limited
for such uranium oxide as a condition precedent to the issuance
of an export licence, on the ground that in making that
decision, the respondent Board erred in law and acted beyond
its jurisdiction.
The attack made by the Attorney General is, in
effect, twofold, viz:
(a) •what is attacked are not and do not purport
to be decisions or orders within the meaning of
those words in section 28, and
(b) if they are decisions or orders, they do not
fall within section 28 because they are adminis
trative decisions or orders not required by law to
be made on a judicial or quasi-judicial basis.
In so far as the first ground—that what is
attacked are not decisions or orders—is concerned,
I am of the view that a section 28 application
should not be quashed at a preliminary stage on
this ground unless it is concluded that it is not
fairly arguable—either on material that is already
before the Court or that is foreshadowed there-
by—that what is attacked are decisions or orders
within section 28. In my view, on the material
before the Court, and the material that is fore-
shadowed thereby, it may well be concluded, at the
end of the day,
(a) that the first attack in the section 28
application is on a decision made or purported to
have been made by the "Minister" under Regu
lation 7(5), and
_(b) that the second attack in the section 28
application is on a decision under Regulation
7(4) refusing or purporting to refuse a licence
under Regulation 5.
No concluded opinion on the questions raised by
that ground can therefore be formed at this pre
liminary stage. It follows in my view that the
motion to quash should not be granted on the first
ground.
With reference to the second ground, which is,
in effect, that decisions under Regulation 7(4) and
7(5) are decisions of an administrative nature that
are not required by law to be made on a judicial or
quasi-judicial basis, as I appreciate it this raises a
true question of law that can be decided at this
preliminary stage. It depends, in my view, on an
interpretation of the statute and regulations and
does not depend on the facts of a particular case.
With reference to the first branch of that ques-
tion—whether decisions under Regulation 7(4)
and 7(5) are of an administrative nature—it does
not seem to me that it is open to argument. Such
decisions are clearly not legislative or judicial deci
sions but, quite clearly, in my view, are adminis
trative decisions.
With reference to the second branch of that
question—whether decisions under Regulation
7(4) and 7(5) are required by law to be made on a
judicial or quasi-judicial basis, we have been
referred to nothing in the statute or regulations
requiring that they be so made, so that the sole
question is whether, under the jurisprudence, this
is a case where there is an implied requirement
that they be so made. After giving the matter the
best consideration that I can give it, in the light of
the jurisprudence, my conclusion is that the
answer is in the negative.
While the statute is a legislative interference
with the exercise of rights that would otherwise be
freely exercisable by the owners of the property
involved, the statute was enacted to make provi
sion for the control and supervision of the develop
ment, application and use of "atomic energy" and
to enable Canada "to participate effectively in
measures of international control of atomic energy
which may hereafter be agreed upon"; and the
scheme adopted, so far as the aspect that concerns
this matter is concerned, is a scheme of licensing
control by an agency—the Atomic Energy Control
Board—acting under the control of a minister of
the Crown. In these circumstances, in my view, it
cannot be inferred that it was intended that a
decision concerning the granting of an export
permit for a substance that is used in creating
"atomic energy" was to be made otherwise than as
a purely administrative matter where the respon
sible minister is accountable exclusively to Parlia
ment. When the nature of the subject matter—
atomic energy—is considered, it would seem obvi
ous that some of the factors entering into such a
decision would have their source in government
policy or in Canada's international obligations,
which, in the nature of things, might well be such
that their existence or nature could not be put into
play, as between the applicant for a licence and the
statutory authorities, so as to enable the operation
of even the most rudimentary scheme of a judicial
or quasi-judicial character for ensuring that an
individual application for an export permit is
decided in a just or fair way'. In my view, the
recent decision of the Supreme Court of Canada in
Minister of Manpower and Immigration v. Har-
dayal [1978] 1 S.C.R. 470 indicates a view with
reference to this class of problem that applies even
more clearly when the subject matter of the legis
lative scheme is control of atomic energy than
where it is the control of the presence of aliens in
Canada. I can, moreover, find no indication in the
legislation here applicable of an assumption that
applications for permits to export materials that
are the source of atomic energy should be decided
on a judicial or quasi-judicial basis just as there
was no such indication in the Immigration Act,
' Cf. Re Clark and Attorney-General of Canada (1978) 17
O.R. (2d) 593 by Evans C.J.H.C. at pp. 603 et seq.
R.S.C. 1970, c. I-2, concerning the revocation of
Ministers' permits.
In my view, this section 28 application should be
quashed for lack of jurisdiction.
* * *
MACKAY D.J.: I agree.
« * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that this section 28 applica
tion should be quashed for the reasons given by the
Chief Justice. The issue that was determined by
the regulatory authorities in this case was whether
the world market value set by the independent
expert, F. A. Ticehurst, for 1977 deliveries under
the purchase agreement was compatible with then
current world prices. This was essentially a ques
tion of fact on which the parties to the contract
were entitled to, and did in fact, make submissions,
at least to the Uranium Exports Review Panel
whose conclusion or recommendation was adopted
by the Atomic Energy Control Board and appar
ently by the ,Minister of Energy, Mines and
Resources in making his direction as to price. As
such, if viewed in isolation from the licensing
function as a whole and the broad nature of the
ministerial power to make directions under the Act
and the regulations, the particular determination
that was made in this case might appear to be one
that was required by law, because of its essential
nature, to be made on a judicial or quasi-judicial
basis. Upon reflection, however, I have come to the
conclusion that it cannot be so isolated, although
fairness required that, in the process of consider
ation leading to the decision as to whether an
export licence should be granted, the parties to the
contract be given an opportunity to make represen
tations as to current world prices. The decisions of
the Atomic Energy Control Board in the exercise
of its licensing function are made subject to direct
ministerial control by means of directions expres
sive of governmental policy. This shows the very
special position of the Board in this field: it is not
exercising a truly independent adjudicative func
tion on issues that viewed as a whole lend them-
selves to a judicial or quasi-judicial process. The
reservation of the ministerial power to make direc
tions upon the basis of the recommendations of a
Review Panel composed of representatives of the
departments concerned, as well as the Board, indi
cates that the issues in the final analysis are seen
to be complex ones of national policy, involving in
some cases questions of security, over which the
government acting in its executive capacity must
retain ultimate control. While the particular issue
of fact in this case might appear to be one that
lends itself to an adjudicative process and to have
determined for practical purposes the right to a
licence, it is not practicable that the nature of a
decision of the Board respecting the issue of an
export licence should vary, in so far as section 28 is
concerned, according to the nature of the particu
lar questions on which approval depends in each
case.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.