A-21-90
Iain Angus, the Corporation of the City of Thun
der Bay and Greenpeace Canada (Appellants)
v.
Her Majesty the Queen and the Minister of
Transport (Respondents)
INDEXED AS: ANGUS V. CANADA (CA.)
Court of Appeal, Hugessen, MacGuigan and
Decary JJ.A.—Ottawa, May 9 and July 4, 1990.
Environment — Order in Council requiring VIA Rail to
reduce passenger-train services — Governor in Council acting
under s. 64 National Transportation Act, 1987 and on recom
mendation of Minister of Transport — Environmental Assess
ment and Review Process Guidelines Order not complied with
— Appeal from Trial Division decision denying certiorari
Whether compliance with Guidelines Order condition prece
dent to exercise by Governor in Council of statutory power
under s. 64 — Interpretation of "department, board or agency
of Government of Canada" and "decision making authority"
— Majority holding Governor in Council can ignore Guide
lines Order — Absence of prima facie evidence of immediate
and direct effect on environment.
Railways — Order in Council requiring VIA Rail to elimi
nate and reduce passenger-train services — Appeal from
refusal to quash as neither Governor in Council nor Minister
of Transport complying with Environmental Assessment and
Review Process Guidelines Order — Observation of Guidelines
Order not condition precedent to exercise by Governor in
Council of statutory power under s. 64 National Transporta
tion Act, 1987.
Judicial review — Prerogative writs — Certiorari — Order
in Council reducing VIA Rail passenger-train services
Governor in Council, Minister not observing Environmental
Assessment and Review Process Guidelines Order — Majority
holding respondents not bound — Failure to explain delay in
filing application, absence of prima facie evidence of adverse
environmental impact relevant factors in denying relief.
Due to a decision to decrease the subsidy paid to VIA Rail
("VIA") for passenger-train services, the Governor in Council,
on the recommendation of the Minister of Transport and
pursuant to section 64 of the National Transportation Act,
1987, enacted Order in Council P.C. 1989-1974 (SOR/89-488)
which required VIA to eliminate specified passenger-train ser
vices and significantly reduce others.
On the day of the enactment of the Order in Council, an
information package was released which stated that the Minis
ter of Transport had directed that the environmental impact of
VIA's network reorganization be examined. Subsequently, a
document entitled "Changes to the VIA Network: Potential
Environmental Impact" was tabled in the House of Commons.
That document did not refer to the Environmental Assessment
and Review Process Guidelines Order (the "EARP Guidelines
Order") nor was it made available to the public prior to
enactment of the Order in Council. Both the Ministers of
Transport and of the Environment took the position that the
EARP Guidelines Order applied to VIA's reorganization and
that the Department of Transport was the "initiating
department".
This is an appeal from the dismissal of a motion to quash the
Order in Council on the ground that it had been implemented
without regard to the EARP Guidelines Order. The issue is
whether the Governor in Council and the Minister of Transport
were legally obliged to comply with the EARP Guidelines
Order.
Held, the appeal should be dismissed.
Per MacGuigan J.A. (Hugessen J.A. concurring): Although
the Governor in Council could be thought of as the first
emanation of the executive power and therefore considered a
"board or agency of the Government of Canada", that is not
the sense which should attach to the Governor in Council under
the EARP Guidelines Order. The issue in this appeal comes
close to the heart of Cabinet government, and it would require
clear language for the Governor in Council to be included in
the phrase "department, board or agency of the Government of
Canada". The question of the desirability of submitting all
Orders in Council to environmental assessment was one of
policy and accordingly beyond the purview of the courts. That
the enactment did not reveal the legislative intention to submit
every initiative of the Governor in Council to environmental
assessment was supported by the Department of the Environ
ment Act, more particularly by section 6 thereof, which appears
to be stronger than sections 4 and 5 in distinguishing the
Governor in Council from departments, boards and agencies:
"the Minister may, by order, with the approval of the Governor
in Council, establish guidelines for use by departments, boards
and agencies of the Government of Canada". The conclusion is
compelling that, on the language used, the Guidelines Order
does not require compliance by the Governor in Council.
Nor did the Guidelines Order require compliance by the
Minister of Transport. Where an action is taken under
section 64 of the National Transportation Act, 1987, the
decision-maker is the Governor in Council only. The Trial
Judge was correct when he found that "Even if the Ministry of
Transport is considered to be the initiating department, it is
clearly not the decision-making body in so far as this Order in
Council is concerned". The requirement that an advisory
person or board act fairly does not determine the status of that
adviser as a decision-maker for the purposes of the Guidelines
Order.
Per Decary J.A. (concurring in the result): The purpose of
the Department of the Environment Act (the "Act") was to
submit all new federal projects to early environmental assess
ment, and the Guidelines the means to achieve this purpose.
The Act is binding on the Government of Canada, whether it
acts through the Governor in Council or through a specific
Minister. Should there be any doubt as to whether the Act is
expressly binding on the Government of Canada, its intent and
context point, at least, to a necessary implication that it is. The
beneficent purpose of the Act would be frustrated should a
distinction be made between a Minister's federal projects and
those of the Cabinet for in modern administration, decisions are
planned, made and acted upon by the Governor in Council with
the assistance of specific ministers and departments.
The EARP Guidelines Order, enacted pursuant to section 6
of the Act, applies to any activity for which the Government of
Canada has a decision-making responsibility, notwithstanding
who the decision-maker is on behalf of the Government, be it a
department, a Minister or the Governor in Council. The Guide
lines do not require that a proposal be made by an initiating
department. When the Governor in Council makes a decision
"on the recommendation" of a Minister there is a "proposal"
for the purposes of the application of the Guidelines and the
"initiating department", for the purposes of the administration
of the Guidelines, is the department responsible for the plan
ning and undertaking of the proposal.
In the case at bar, there was only one "initiating depart
ment": the Department of Transport, and but one "decision
making authority": the Minister of Transport. The appellants'
contention, that "when the Governor in Council deals with a
proposal on the basis of a recommendation of a Minister, that
Minister has exercised a power of decision in respect of that
proposal", was valid. There is nothing in the Guidelines, read in
conjunction with the Act, that imports a notion of "finality",
not even of "legality", in the expression "decision making
authority". One must look at the actual decisions and actions
which have taken place and which have to be taken by the
relevant government departments to decide which department
is the de facto deciding authority. It followed that in exercising
a decision making authority on behalf of the Government of
Canada, the Minister was bound to apply the EARP Guidelines
Order. Furthermore, the Department of the Environment Act
and the Guidelines make it a condition precedent to the exer
cise of its statutory power under section 64 that the Governor in
Council, although not an "initiating department", ascertain
that the Department of Transport complied with the
Guidelines.
The appellants should, however, be denied certiorari. The
grounds upon which a court may refuse to exercise its discre
tion to issue certiorari are well established: unreasonable delay
on the part of the applicant; the fact that the delay leaves
nothing for the court to prohibit; the fact that no useful purpose
would be served by granting the remedy and the fact that the
granting of the order would be detrimental to good administra
tion. Appellants explained neither the delay in filing the
application attacking the Order in Council nor the nature of
their concerns. The absence of even prima facie evidence that
the proposal might have an immediate and direct effect on the
quality of the environment also justified the refusal.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Environmental Protection Act, R.S.C., 1985
(4th Supp.), c. 16, ss. 53, 146 (not yet in force).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], ss. 9, 10, 11, 13.
Department of the Environment Act, R.S.C., 1985, c.
E-10, ss. 4(1),(2), 5, 6, 7.
Environmental Assessment and Review Process Guide
lines Order, SORI84-467 , ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,
11, 12, 13, 15.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Interpretation Act, R.S.C., 1985, c. 1-21, ss. 2, 12.
National Transportation Act, 1987, R.S.C., 1985 (3rd
Supp.), c. 28, s. 64.
Order Varying Certain National Transportation Agency
Orders Respecting Railway Companies, SOR/89-488.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Re Abel et al. and Advisory Review Board (1980), 31
O.R. (2d) 520; 119 D.L.R. (3d) 101; 56 C.C.C. (2d) 153
(C.A.).
CONSIDERED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1;
33 N.R. 304; Canadian Wildlife Federation Inc. v.
Canada (Minister of the Environment), [1989] 3 F.C.
309; [1989] 4 W.W.R. 526; (1989), 37 Admin. L.R. 39; 3
C.E.L.R. (N.S.) 287; 26 F.T.R. 245 (T.D.); affd [1990] 2
W.W.R. 69; (1989), 38 Admin. L.R. 138; 4 C.E.L.R.
(N.S.) 1; 27 F.T.R. 159; 99 N.R. 72 (F.C.A.); Friends of
the Oldman River Society v. Canada (Minister of Trans
port), [1990] 2 F.C. 18 (C.A.); Naskapi-Montagnais
Innu Assn. v. Canada (Minister of National Defence),
[1990] 3 F.C. 381 (T.D.); Province of Bombay v. Munic
ipal Corporation of the City of Bombay and Another,
[1947] A.C. 58; R. v. Ouellette, [1980] 1 S.C.R. 568;
(1980), 111 D.L.R. (3d) 216; 52 C.C.C. (2d) 536; 15
C.R. (3d) 373; 32 N.R. 361.
REFERRED TO:
Canadian Wildlife Federation Inc. et al. v. Canada
(Minister of the Environment) and Saskatchewan Water
Corp. (1989), 31 F.T.R. 1 (F.C.T.D.); Harelkin v. Uni
versity of Regina, [1979] 2 S.C.R. 561; [1979] 3
W.W.R. 676; (1979), 26 N.R. 364.
AUTHORS CITED
Canada. House of Commons Debates, Vol. 131, no. 68,
2nd Sess., 34th Parl., October 3, 1989, at page 4252.
Canada. House of Commons Standing Committee on
Transport. Minutes of Proceedings and Evidence, Issue
No. 18 (October 16, 1989), at page 18:36.
Dawson, R. MacGregor. The Government of Canada, 5th
ed. by Norman Ward. Toronto: University of Toronto
Press, 1970.
de Smith, S. A. Judicial Review of Administrative
Action, 4th ed. by J. M. Evans. London: Stevens &
Sons Ltd., 1980.
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Dussault, Rene and Borgeat, Louis. Administrative
Law—A Treatise, 2nd ed., translated by M. Rankin.
Toronto: Carswell, 1985.
Fajgenbaum and Hanks' Australian Constitutional Law,
2nd ed. by Peter Hanks. Sydney: Butterworths, 1980.
Halliday, W. E. D. "The Executive of the Government of
Canada" (1959), 2 Can. Pub. Admin. 229.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed.
Toronto: Carswell Co. Ltd., 1985.
Jones, David P. and de Villars, Anne S. Principles of
Administrative Law. Toronto: Carswell Co. Ltd., 1985.
Mallory, James Russell. The Structure of Canadian Gov
ernment. Toronto: Macmillan Co. of Canada Ltd.,
1971.
COUNSEL:
Brian A. Crane, Q. C. and Martin W. Mason
for appellants.
Brian J. Saunders and Joseph C. de Pencier
for respondents.
SOLICITORS:
Gowling, Strathy & Henderson, Ottawa, for
appellants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: The question for decision in
this case is whether the Governor in Council or the
Minister of Transport is legally obliged to comply
with an environmental guidelines order. The order
in question is the Environmental Assessment and
Review Process Guidelines Order, SOR/84-467, of
June 22, 1984 ("the EARP Guidelines Order").
This is an expedited appeal from an order of
Rouleau J., rendered orally on January 12, 1990
[T-47-90, not yet reported], which dismissed the
appellants' motion for certiorari seeking to quash
Order in Council P.C. 1989-1974 [SOR/89-488],
which amended orders of the National Transporta-
tion Agency in respect of the passenger-train ser
vices of VIA Rail ("VIA"). The impugned Order
in Council was made on the recommendation of
the Minister of Transport ("the Minister") and
required VIA to eliminate specified passenger ser
vices and significantly reduce others.
In its budget of April 1989, the Government of
Canada announced its intention to decrease the
subsidy paid to VIA for passenger-train service by
one billion dollars over the following five years.
The following month the Minister informed VIA's
Board of Directors of the Government's intention
to downsize VIA's services. As a result, VIA's
Board proposed a five-year corporate plan to the
Minister based on the reduced funding levels sug
gested by the Government. After considering the
corporate plan, the Minister decided to recom
mend major passenger rail cuts to the federal
Cabinet.
On October 3, 1989, the Minister advised the
House of Commons that the Government had
respected the environmental review process in rela
tion to the VIA reorganization. On October 4, the
Governor in Council, acting pursuant to section 64
of the National Transportation Act, 1987, R.S.C.,
1985 (3rd Supp.), c. 28, passed Order in Council
P.C. 1989-1974, which required VIA to eliminate
certain passenger services and significantly reduce
others. The Order in Council required VIA to
begin the implementation of the reductions on
January 15, 1990. The final effects of the imple
mentation include the elimination of 51% of the
VIA passenger network and the termination of
38% of the VIA workforce. On the same day that
the Order in Council was passed, the Minister held
a news conference to announce the VIA cuts and
released an information package in which it was
stated that the Minister had directed that the
environmental impact of the reorganization be
carefully examined.
On October 11, 1989 an undated, four-page
document titled "Changes to the VIA Network:
Potential Environmental Impact" was tabled in
the House of Commons. This document did not
refer to the EARP Guidelines Order. The docu
ment was not made available to the public prior to
the issuance of the challenged Order in Council,
and the public was not invited to formally respond
to the environmental impact of the VIA decision
prior to the Cabinet's decision.
In the House and before the Standing Commit
tee on Transport, both the Ministers of Transport
and the Environment took the position that the
EARP Guidelines Order applied to the reorganiza
tion, and that, for the purposes of the Guidelines
Order, the Department of Transport was the "ini-
tiating department". However, there is no record
of any decision taken by either the Minister of
Transport or of the Minister of Environment pur
suant to section 12 or 13 of the EARP Guidelines
Order.
On January 9, 1990, the appellants, namely, the
Member of Parliament for Thunder Bay-Atiko-
kan, the City of Thunder Bay and Greenpeace
Canada, filed an application under section 18 of
the Federal Court Act, R.S.C., 1985, c. F-7, seek
ing to quash the Order in Council in question. The
application was heard together with another seek
ing an injunction in respect of the same Order in
Council. The Motions Judge delivered reasons
from the bench dismissing both applications. The
appeal at bar relates only to the application for
certiorari.
Before, the Motions Judge, the appellants unsuc
cessfully challenged the validity of the Order in
Council on the basis that it had been implemented
without regard for the mandatory terms of the
EARP Guidelines Order. The principal provisions
of this Order are as follows:
GUIDELINES RESPECTING THE IMPLEMENTATION
OF THE FEDERAL POLICY ON ENVIRONMENTAL
ASSESSMENT AND REVIEW
Short Title
1. These Guidelines may be cited as the Environmental
Assessment and Review Process Guidelines Order.
Interpretation
2. In these Guidelines,
"Environmental Impact Statement" means a documented
assessment of the environmental consequences of any pro
posal expected to have significant environmental conse
quences that is prepared or procured by the proponent in
accordance with guidelines established by a Panel; (enonce
des incidences environmentales)
"department" means, subject to sections 7 and 8,
(a) any department, board or agency of the Government of
Canada, and
(b) any corporation listed in Schedule D to the Financial
Administration Act and any regulatory body;
(ministere)
"initiating department" means any department that is, on
behalf of the Government of Canada, the decision making
authority for a proposal; (ministere responsable)
"Minister" means the Minister of the Environment; (Ministre)
"Office" means the Federal Environmental Assessment Review
Office that is responsible directly to the Minister for the
administration of the Process; (Bureau)
"Panel" means an Environmental Assessment Panel that con
ducts the public review of a proposal pursuant to section 21;
(commission)
"Process" means the Environmental Assessment and Review
Process administered by the Office; (processus)
"proponent" means the organization or the initiating depart
ment intending to undertake a proposal; (promoteur)
"proposal" includes any initiative, undertaking or activity for
which the Government of Canada has a decision making
responsibility. (proposition)
Scope
3. The Process shall be a self assessment process under
which the initiating department shall, as early in the planning
process as possible and before irrevocable decisions are taken,
ensure that the environmental implications of all proposals for
which it is the decision making authority are fully considered
and where the implications are significant, refer the proposal to
the Minister for public review by a Panel.
4. (1) An initiating department shall include in its consider
ation of a proposal pursuant to section 3
(a) the potential environmental effects of the proposal and
the social effects directly related to those environmental
effects, including any effects that are external to Canadian
territory; and
(b) the concerns of the public regarding the proposal and its
potential environmental effects.
(2) Subject to the approval of the Minister and the Minister
of the initiating department, consideration of a proposal may
include such matters as the general socio-economic effects of
the proposal and the technology assessment of and need for the
proposal.
5. (1) Where a proposal is subject to environmental regula
tion, independently of the Process, duplication in terms of
public reviews is to be avoided.
(2) For the purpose of avoiding the duplication referred to in
subsection (1), the initiating department shall use a public
review under the Process as a planning tool at the earliest
stages of development of the proposal rather than as a regulato
ry mechanism and make the results of the public review
available for use in any regulatory deliberations respecting the
proposal.
Application
6. These Guidelines shall apply to any proposal
(a) that is to be undertaken directly by an initiating
department;
(b) that may have an environmental effect on an area of
federal responsibility;
(c) for which the Government of Canada makes a financial
commitment; or
(d) that is located on lands, including the offshore, that are
administered by the Government of Canada.
7. Where the decision making authority for a proposal is a
corporation listed in Schedule D to the Financial Administra
tion Act, the Process shall apply to that proposal only if
(a) it is the corporate policy of that corporation to apply the
Process; and
(b) the application of the Process to that proposal is within
the legislative authority of that corporation.
8. Where a board or an agency of the Government of
Canada or a regulatory body has a regulatory function in
respect of a proposal, these Guidelines shall apply to that
board, agency or body only if there is no legal impediment to or
duplication resulting from the application of these Guidelines.
9. (1) Where, in respect of a proposal, there are two or more
initiating departments, the initiating departments shall deter
mine which of the responsibilities, duties and functions of an
initiating department under these Guidelines shall apply to
each of them.
(2) Where the initiating departments cannot under subsec
tion (1) agree to a determination, the Office shall act as an
arbitrator in the making of the determination.
INITIAL ASSESSMENT
Initiating Department
10. (I) Every initiating department shall ensure that each
proposal for which it is the decision making authority shall be
subject to an environmental screening or initial assessment to
determine whether, and the extent to which, there may be any
potentially adverse environmental effects from the proposal.
(2) Any decision to be made as a result of the environmental
screening or initial assessment referred to in subsection (1)
shall be made by the initiating department and not delegated to
any other body.
11. For the purposes of the environmental screening and
initial assessment referred to in subsection 10(1), the initiating
department shall develop, in cooperation with the Office,
(a) a list identifying the types of proposals that would not
produce any adverse environmental effects and that would, as
a result, be automatically excluded from the Process; and
(b) a list identifying the types of proposals that would
produce significant adverse environmental effects and that
would be automatically referred to the Minister for public
review by a Panel.
12. Every initiating department shall screen or assess each
proposal for which it is the decision making authority....
13. Notwithstanding the determination concerning a pro
posal made pursuant to section 12, if public concern about the
proposal is such that a public review is desirable, the initiating
department shall refer the proposal to the Minister for public
review by a Panel.
15. The initiating department shall ensure
(a) after a determination concerning a proposal has been
made pursuant to section 12 or a referral concerning the
proposal has been made pursuant to section 13, and
(b) before any mitigation or compensation measures are
implemented pursuant to section 13,
that the public have access to the information on and the
opportunity to respond to the proposal in accordance with the
spirit and principles of the Access to Information Act.
The reasons for decision of Rouleau J. on the
matter herein appealed are as follows (Appeal
Book at pages 155-156) [reasons for order at pages
4-5]:
Concerning the Environmental Assessment Review [Process]
Guidelines, I am convinced here once again that the Governor
General in Council is not bound.
It seems ludicrous that both the Minister of Transport and of
the Environment, as well as the Standing Committee, felt an
obligation to at least consider the environmental impact. As I
see it, it is, nevertheless, not a binding obligation on the body
that passed the impugned Order.
Under the Guidelines, the "initiating department" must not
only be the proposer of the anticipated directive, but it must
also be the decision-maker, ie. the enacting body. As you well
know, it is not up to the Court to legislate, but Parliament. It is
they who have chosen to exclude from their definition of
"initiating department" this particular powerful executive arm
of government. Though it has been suggested to me that courts
may have, in certain circumstances, found that the Governor
General in Council could be considered a "board" under the
Federal Court Act, one cannot, by analogy, transpose the
finding to give this Court the authority to make a determina
tion that under the EARP Guidelines it was meant to include
this body in its definition of "initiating departments".
Even if the Ministry of Transport is considered to be the
initiating department, it is clearly not the decision-making body
in so far as this Order in Council is concerned, which was
passed pursuant to the extraordinary power granted under
section 64 of the National Transportation Act.
Since respondents did not contend that either
the Governor in Council or the Minister did in fact
comply with the Guidelines,' the principal ques
tion before this Court is whether the EARP
Guidelines Order should be interpreted so as to
require the compliance of the Governor in Council
or the Minister in these circumstances.
Since the impugned Order in Council was made
under section 64 of the National Transportation
Act, 1987, 2 it is common ground that, as it was put
by Estey J. for the Supreme Court of Canada in
Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [1980] 2 S.C.R. 735 at pages 754,
756, the power of the Governor in Council by his
own motion to vary or rescind any rule or order of
the Canadian Transport Commission is "legislative
action in its purest form" and that "the discretion
of the Governor in Council is complete provided he
observes the jurisdictional boundaries" of the
provision. It is also common ground that this
legislative power of the Governor in Council is
subject to judicial review if he has failed to observe
any condition precedent to the exercise of the
power. Again in the words of Estey J. (at page
748):
Let it be said at the outset that the mere fact that a statutory
power is vested in the Governor in Council does not mean that
it is beyond review. If that body has failed to observe a
condition precedent to the exercise of that power, the court can
declare that such purported exercise is a nullity.
1 The respondents did, however, contend that there was suffi
cient evidence of a lack of adverse effect on the environment to
warrant this Court's refusing to grant the discretionary remedy
of certiorari, even if it were otherwise justified. In addition to
this argument that certiorari would serve no useful purpose, the
respondents also invoked the appellant's alleged delay in com
mencing proceedings before the Trial Division as a reason for
refusing certiorari.
The text of this provision is as follows:
64. The Governor in Council may, at any time, in the
discretion of the Governor in Council, either on petition of
any party or person interested or of the Governor in Coun
cil's own motion, vary or rescind any decision, order, rule or
regulation of the Agency, whether the decision or order is
made inter partes or otherwise, and whether the rule or
regulation is general or limited in its scope and application,
and any order that the Governor in Council may make with
respect thereto is binding on the Agency and on all parties.
The question then becomes one of whether the
requirements of the EARP Guidelines Order con
stitute such a condition precedent.
The contentions of the appellants in this respect
are as follows. The EARP Guidelines Order
applies, inter alia, to any proposal that may have
an environmental effect on an area of federal
responsibility (paragraph 6(b)). A "proposal" is
defined as including "any initiative, undertaking or
activity for which the Government of Canada has
a decision making responsibility" (section 2). 3 The
initial responsibility for implementing the EARP
Guidelines Order falls on the "initiating depart
ment," defined as "any department, board or
agency of the Government," any regulatory body,
or any Schedule D (Financial Administration Act
[R.S.C. 1970, c. F-10]) Crown corporation that is,
on behalf of the Government, the decision-making
authority for the proposal (section 2).
The appellants point to the breadth of the lan
guage used throughout the Guidelines Order: "the
environmental consequences of any proposal
expected to have significant environmental conse
quences" (section 2); "any department, board or
agency of the Government of Canada" (section 2),
"any department that is, on behalf of the Govern
ment of Canada, the decision making authority for
a proposal" (section 2); "any initiative, undertak
ing or activity for which the Government of
Canada has a decision making responsibility" (sec-
tion 2); "as early in the planning process as possi
ble and before irrevocable decisions are taken"
(section 3); "the potential environmental effects of
the proposal and the social effects directly related
to those environmental effects" (paragraph 4(a)),
3 It is troubling that the French version of the definition
section, section 2, includes no counterpart to the English
initiative.
proposition S'entend en outre de toute entreprise ou acti-
vite a regard de laquelle le gouvernement du Canada
participe a la prise de decisions. (proposal)
Nevertheless, the general sense of the two versions is the same,
and since the English version is equally authoritative, I believe
we must accept the word initiative without further question,
especially since the English version also utilizes "initiating" in
the phrase "initiating department" (ministere responsable).
"any proposal . .. that may have an environmental
effect on any area of federal responsibility" (para-
graph 6(b)). All of these, it is argued, support a
universalist approach to the meaning of the Guide
lines Order.
The appellants also referred to the Department
of the Environment Act, R.S.C., 1985, c. E-10,
pursuant to section 6 of which the Minister of the
Environment was given power to establish guide
lines such as those contained in the Order. Section
5 of that Act gives that Minister the duty to:
(a) initiate, recommend and undertake programs, and coor
dinate programs of the Government of Canada that are
designed
. . .
(ii) to ensure that new federal projects, programs and
activities are assessed early in the planning process for
potential adverse effects on the quality of the natural
environment and that a further review is carried out of
those projects, programs, and activities that are found to
have probable significant adverse effects, and the results
thereof taken into account ....
They therefore conclude that, by the phrase
"any department, board or agency of the Govern
ment of Canada" (which is, in part, how "depart-
ment" is defined in section 2), Parliament intended
to cover all instrumentalities through which the
executive power of that Government might be
exercised even to the inclusion of the Governor in
Council. A contrary interpretation would be incon
sistent with the purpose of the enactment, it was
said, and a large range of federal decision making
would be excluded from the requirement of envi
ronmental assessment and review notwithstanding
Parliament's intention that all new federal pro
posals, undertakings and activities be so examined.
In this contention, it seems to me, the Court is
confronted with an underlying political argument
as to the desirability of universal environmental
protection, a matter which, in the absence of statu
tory or other authority, is beyond the capacity of a
court to judge.
In addition, I do not find the legislative inten
tion as manifest as painted, nor am I able to derive
any assistance from recent decisions such as
Canadian Wildlife Federation Inc. v. Canada
(Minister of the Environment), [1989] 3 F.C. 309
(T.D.), affirmed at [1990] 2 W.W.R. 69 (F.C.A.);
Canadian Wildlife Federation Inc. et al. v.
Canada (Minister of the Environment) and Sas-
katchewan Water Corp. (1989), 31 F.T.R. 1
(F.C.T.D.); Friends of the Oldman River Society
v. Canada (Minister of Transport), [1990] 2 F.C.
18 (C.A.); and Naskapi-Montagnais Innu Assn. v.
Canada (Minister of National Defence), [1990] 3
F.C. 381 (T.D.).
It was common ground that the phrase "the
Government of Canada" was used in the sense of
the executive branch of government. In the course
of argument there was some discussion as to
whether the Governor in Council is co-extensive
with the executive, so that it would be inconsistent
to refer to him as a department, board or agency
of the executive.
I am, however, satisfied that the Governor in
Council is not to be identified with the executive
power as such. Section 9 of the Constitution Act,
1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5]] provides that "The Executive
Government and Authority of and over Canada is
hereby declared to continue and be vested in the
Queen." Section 10 makes it apparent that the
Governor General is the "Chief Executive Officer
. carrying on the Government of Canada on
behalf and in the Name of the Queen". Then by
section 11 the Governor General is empowered to
choose and summon persons to be members of the
Queen's Privy Council for Canada "to aid and
advise in the Government of Canada". Section 13
establishes that the Governor General in Council
(now more usually called the Governor in Council)
comprises "the Governor General acting by and
with the Advice of the Queen's Privy Council for
Canada". Beyond that, the operation of the execu
tive is shrouded in the conventions of responsible
government. What is clear is that, in the words of
Professor Peter W. Hogg, Constitutional Law of
Canada, 2nd ed. 1985, Toronto: Carswell Com
pany Limited, at page 195, "The whole Privy
Council meets very rarely, and then only for
ceremonial occasions", and that it is the Cabinet,
in form merely a Committee of the Privy Council,
which in reality constitutes the "Council" advising
the Governor General at any particular time.'
The Governor in Council does not, then, in law
encompass the whole of the executive power.
Executive authority is vested in the Governor Gen
eral under the Queen, and he or she retains reserve
or personal powers, such as the choice of a prime
minister. Even if one can say, with Professor
Hogg, at page 195, that "The cabinet . . . is in
most matters the supreme executive authority",
even its de facto authority is not the whole of the
executive power.
In my view, there is nothing illogical in thinking
of the Governor in Council, i.e. the Governor
General acting by and with the advice of the
Cabinet, as the first emanation of executive power.
In that sense, he could be said to be a "board or
agency of the Government of Canada". However,
the question, as I see it, is not whether he could be
so called, but whether that is the sense in which he
described himself in the Guidelines Order. I do not
believe that to be the case.
Not only would that be a strained usage to
employ if he intended to include himself, but we
are here, it seems to me, close to the heart of
Cabinet government, and it would require clear
language indeed to establish that the Governor in
Council is included in "department, board or agen
cy". The decision to cut back railway passenger
service was, after all, a budgetary decision, and
budgets are matters over which Parliament divides
on motions of non-confidence. The impugned
Order in Council is effectively the implementation
of that budgetary decision of April 1989. It may
be thought to be highly desirable that such orders
in council be submitted to environmental assess
ment, but that sort of desirability can be measured
only by considerations of policy beyond the pur
view of the courts. Courts are confined to the four
corners of the enactment. In my view the enact
' Similar analyses are found in Dussault and Borgeat,
Administrative Law—A Treatise, 2nd ed., 1985, Halliday,
"The Executive of the Government of Canada" (1959), 2 Can.
Pub. Admin. 229, Mallory; The Structure of Canadian Gov
ernment, 1971, Dawson, The Government of Canada, 5th ed.
by N. Ward, 1970.
ment here, however broadly taken, does not reveal
any legislative intention to submit all initiatives,
undertakings or activities of the Governor in
Council to environmental assessment.
This interpretation is, I believe, supported by the
parent Act, the Department of the Environment
Act, under section 6 of which the Guidelines Order
was made and from which the phrase "depart-
ment, board or agency" was derived. Subsection
4(1) of that Act begins as follows:
4. (1) The powers, duties and functions of the Minister
extend to and include all matters over which Parliament has
jurisdiction, not by law assigned to any other department,
board or agency of the Government of Canada ....
This provision appears to equate the phrase
"department, board or agency of the Government
of Canada," not with the Governor in Council, but
rather with a single governmental minister or min
istry. A similar conclusion can be drawn from
subsection 5(c) where the Minister is directed to
advise "the heads of departments, boards and
agencies" on environmental matters. Section 6, the
actual empowering provision for the Guidelines
Order, is perhaps even stronger, in apparently
distinguishing the Governor in Council from
departments, boards and agencies:
6. For the purposes of carrying out his duties and functions
related to environmental quality, the Minister may, by order,
with the approval of the Governor in Council, establish guide
lines for use by departments, boards and agencies of the
Government of Canada and, where appropriate, by corpora
tions named in Schedule III to the Financial Administration
Act and regulatory bodies in the exercise of their powers and
the carrying out of their duties and functions. [Emphasis
added.]
All in all, I find the conclusion compelling that,
on the language used, the Guidelines Order does
not require the compliance of the Governor in
Council.
The issue which remains is as to the necessity of
compliance with the Order by the Minister of
Transport. There is no question, of course, that
Ministers of the Crown are legally obliged to
comply with the EARP Guidelines Order: Friends
of the Oldman River Society, supra. The Order
even provides for a division of responsibility where
there are two or more initiating departments in
respect of a proposal (section 9).
Although the impugned Order in Council states
on its face that it was made on the recommenda
tion of the Minister of Transport, and there were
admissions in Parliament that the Minister was the
initiating Minister (House of Commons Debates
October 3, 1989, at page 4252; Minutes of Pro
ceedings and Evidence of the Standing Committee
on Transport, October 16, 1989, at page 18:36),
the contention of the respondents was that the
Minister was not in law an initiating department
but simply in the position of giving advice or
making recommendations to the real decision-
making authority, the Governor in Council. It was
said that, absent decision-making authority, a
department is not an "initiating department" as
that term is defined in the Guidelines Order, and
therefore not legally obligated to apply the process
set out.
On behalf of the appellants the argument was
put that, when the Governor in Council deals with
a proposal on the basis of a recommendation of a
Minister, that Minister has exercised a power of
decision in respect of that proposal, and that
because the Minister in the case at bar had exer
cised a decision-making authority on behalf of the
Government of Canada in respect of the VIA cuts
he was bound to apply the EARP Guidelines
Order. The case cited as authority for this proposi
tion was Re Abel et al. and Advisory Review
Board (1980), 31 O.R. (2d) 520, a decision of the
Ontario Court of Appeal. Arnup J.A. there held
for the Court that an advisory review board, estab
lished under the Ontario Mental Health Act,
R.S.O. 1970, c. 269, to advise the Lieutenant-Gov
ernor in Council on the continued detention of
patients in criminal psychiatric facilities, made
decisions which brought into play the requirement
that it act fairly.
However, in my view Re Abel cannot assist the
appellants in the present context. Whatever the
requirements of procedural justice in relation to an
advising person or board, they cannot determine
the status of that adviser as a decision-maker for
the purposes of this Guidelines Order. Decision-
making is not defined in the Order, but in this case
at least, where the action is taken under section 64
of the National Transportation Act, 1987, the
decision-maker can only be the Governor in Coun
cil. I believe the learned Motions Judge was entire
ly right when he disposed of this issue in one pithy
sentence (Appeal Book, at page 156 [reasons for
order at page 5]):
Even if the Ministry of Transport is considered to be the
initiating department, it is clearly not the decision-making body
in so far as this Order in Council is concerned, which was
passed pursuant to the extraordinary power granted under
section 64 of the National Transportation Act.
In the light of my decision on the interpretation
of the Guidelines Order, it is not necessary for me
to consider the respondents' further arguments as
to why certiorari should not be granted.
The appeal should therefore be dismissed with
costs.
HUGESSEN J.A.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
DEcARY J.A.: I have had the advantage of
reading the reasons for judgment prepared by my
brother MacGuigan J.A.. While I would dispose of
the matter in the way he suggests, I follow a
different route than his. The facts have been recit
ed in his reasons and I need not repeat them here.
He has also quoted the principal provisions of the
EARP Guidelines Order ("Guidelines"). As my
reasons are primarily based on the provisions of
the Department of the Environment Act ("Act"), I
find it useful to quote in full the relevant sections
of that Act.
POWERS, DUTIES AND FUNCTIONS OF THE
MINISTER
4. (1) The powers, duties and functions of the Minister
extend to and include all matters over which Parliament has
jurisdiction, not by law assigned to any other department,
board or agency of the Government of Canada, relating to
(a) the preservation and enhancement of the quality of the
natural environment, including water, air and soil quality;
(b) renewable resources, including migratory birds and other
non-domestic flora and fauna;
(c) water;
(d) meteorology;
(e) notwithstanding paragraph 4(2)(/) of the Department of
National Health and Welfare Act, the enforcement of any
rules or regulations made by the International Joint Commis
sion, promulgated pursuant to the treaty between the United
States of America and His Majesty, King Edward VII,
relating to boundary waters and questions arising between
the United States and Canada, in so far as they relate to the
preservation and enhancement of the quality of the natural
environment;
(J) the coordination of the policies and programs of the
Government of Canada respecting the preservation and
enhancement of the quality of the natural environment;
(g) national parks; and
(h) national battlefields, historic sites and monuments.
(2) The powers, duties and functions of the Minister also
extend to and include such other matters, relating to the
environment and over which Parliament has jurisdiction, as are
by law assigned to the Minister.
5. The Minister, in exercising his powers and carrying out
his duties and functions under section 4, shall
(a) initiate, recommend and undertake programs, and coor
dinate programs of the Government of Canada that are
designed
(i) to promote the establishment or adoption of objectives
or standards relating to environmental quality, or to con
trol pollution,
(ii) to ensure that new federal projects, programs and
activities are assessed early in the planning process for
potential adverse effects on the quality of the natural
environment and that a further review is carried out of
those projects, programs, and activities that are found to
have probable significant adverse effects, and the results
thereof taken into account, and
(iii) to provide to Canadians environmental information in
the public interest;
(b) promote and encourage the institution of practices and
conduct leading to the better preservation and enhancement
of environmental quality, and cooperate with provincial gov
ernments or agencies thereof, or any bodies, organizations or
persons, in any programs having similar objects; and
(c) advise the heads of departments, boards and agencies of
the Government of Canada on all matters pertaining to the
preservation and enhancement of the quality of the natural
environment.
GUIDELINES BY ORDER
6. For the purposes of carrying out his duties and functions
related to environmental quality, the Minister may, by order,
with the approval of the Governor in Council, establish guide
lines for use by departments, boards and agencies of the
Government of Canada and, where appropriate, by corpora
tions named in Schedule III to the Financial Administration
Act and regulatory bodies in the exercise of their powers and
the carrying out of their duties and functions.
AGREEMENTS
7. The Minister may, with the approval of the Governor in
Council, enter into agreements with the government of any
province or any agency thereof respecting the carrying out of
programs for which the Minister is responsible.'
Interpretation of the Act and of the Guidelines
The Act
From the wording of these provisions, the
powers, duties and functions of the Minister of the
Environment extend to matters relating to the
coordination of the policies and programs of the
Government of Canada respecting the preservation
and enhancement of the quality of the natural
environment; 6 in exercising these powers and
carrying out these duties and functions the Minis
ter shall initiate, recommend and undertake pro
grams, and coordinate programs of the Govern
ment of Canada that are designed to ensure that
new federal projects, programs and activities are
assessed early in the planning process for potential
adverse effects on the quality of the natural
environment; 7 and for the purpose of carrying out
his duties and functions related to environmental
quality, the Minister may establish guidelines for
use by departments, boards and agencies of the
Government of Canada. 8
As I read these various sections, it seems to me
that the intention of Parliament was to ensure that
all new projects, programs and activities of the
Government of Canada_ would be subject to early
assessment in the planning process and, in order to
so ensure, that guidelines be established for the use
of all departments, boards and agencies. The pur
pose of the Act is to apply the early assessment to
all new federal projects, and the means to achieve
this purpose are the Guidelines. I note that section
5 Note: Counsel for the parties did not rely on the Canadian
Environmental Protection Act, which was assented to on June
28, 1988 (S.C. 1988, c. 22; R.S.C., 1985, (4th Supp.), c. 16,
and which contains a provision, section 53, similar to section 6
of the Department of the Environment Act except with respect
to the words "by order" which have been deleted. Section 146
of the Act repeals section 6 of the Department of the Environ
ment Act, but that section has not yet come into force. The
Guidelines, therefore, have been interpreted solely in the con
text of the Department of the Environment Act under which
they were formally established.
6 Paragraph 4(1)(f).
'Subparagraph 5(a)(ii) (emphasis added).
Section 6.
6 does not provide that the Guidelines apply to
departments; it provides that the Guidelines are
for use by departments, which confirms in my
opinion the distinction to be drawn between the
purpose and effect of the Act, defined in sections 4
and 5, and the means established to achieve the
purpose and effect, defined in section 6.
The Act, by its wording, is in my view binding
on the Government of Canada and, therefore, on
the Governor in Council and the Cabinet for in
modern times
In fact, as a result of constitutional conventions, the real
executive power belongs, at the federal level, to a committee of
the Privy Council—the Cabinet .... 9
The words "federal projects, programs and activi
ties" [underlining added] as used in subparagraph
5(a)(ii) of the Act cannot but include projects,
programs and activities which are said to be those
of the Government of Canada, whether the Gov
ernment of Canada acts through the Governor in
Council or through a specific Minister.
Should there be any doubt as to whether or not
the Act is expressly binding on the Government of
Canada, its intent and context point to at least a
necessary implication that it is binding.
In Province of Bombay v. Municipal Corpora
tion of the City of Bombay and Another, Lord du
Parcq expressed the view that:
Their Lordships prefer to say that the apparent purpose of the
statute is one element, and may be an important element, to be
considered when an intention to bind the Crown is alleged. If it
can be affirmed that, at the time when the statute was passed
and received the royal sanction, it was apparent from its terms
that its benificent purpose must be wholly frustrated unless the
Crown were bound, then it may be inferred that the Crown has
agreed to be bound. Their Lordships will add that when the
court is asked to draw this inference, it must always be
remembered that, if it be the intention of the legislature that
the Crown shall be bound, nothing is easier than to say so in
plain words. J°
and in R. v. Ouellette, Mr. Justice Beetz was of
the view that section 16 [R.S.C. 1970, c. C-34]
(now section 17 [R.S.C., 1985, c. I-21]) of the
Interpretation Act which provides that no enact
9 Dussault and Borgeat, Administrative Law—A Treatise,
1985, Vol. I, at pp. 53 ff.
[1947] A.C. 58, at p. 63.
ment is binding on Her Majesty except as men
tioned or referred to in the enactment,
... does not exclude the rule by which the various provisions of
a statute are each interpreted in light of the others, and it is
possible that Her Majesty be implicitly bound by legislation if
that is the interpretation which the legislation must be given
when it is placed in its context."
In this case it seems to me apparent from the
terms of the Act that its beneficent purpose would
be wholly frustrated if the Government of Canada
were allowed to play with words and distinguish
where Parliament did not between federal projects
that are those of a specific Minister and federal
projects that are those of Cabinet even acting in a
legislative capacity. The Act addresses a most
practical concern, the environment, and is intended
by its own terms to protect the quality of the
environment whenever a new federal project is
planned. We should not interpret the Act as if it
were a constitutional document nor seek to import
into it constitutional nuances that create irrelevant
ambiguities where none really exists when one
looks at the plain words used and applies them to
government machinery as it works in daily life.
One cannot ignore that in modern administration,
decisions are not planned, made and acted upon by
the Governor in Council without the assistance of
specific ministers and departments.
The practice of government, in Canada, is
defined as follows by Peter Hogg:
When the ministers meet together as a group they constitute
the cabinet ....
The cabinet, which does meet regularly and frequently, is in
most matters the supreme executive authority .... The cabinet
formulates and carries out all executive policies, and it is
responsible for the administration of all the departments of
government. It constitutes the only active part of the Privy
Council, and it exercises the powers of that body. The Governor
General does not preside over, or even attend, the meetings of
the cabinet. The Prime Minister presides. Where the Constitu
tion or a statute requires that a decision be made by the
"Governor General in Council" (and this requirement is very
common indeed), there is still no meeting with the Governor
General. The cabinet (or a cabinet committee to which routine
Privy Council business has been delegated) will make the
decision, and send an "order" or "minute" of the decision to the
Governor General for his signature (which by convention is
automatically given). Where a statute requires that a decision
be made by a particular minister, then the cabinet will make
H [1980] 1 S.C.R. 568, at p. 575.
the decision, and the relevant minister will formally authenti
cate the decision. Of course a cabinet will be content to
delegate many matters to individual ministers, but each minis
ter recognizes the supreme authority of the cabinet should the
cabinet seek to exercise it.
• •
It will now be obvious that in a system of responsible
government there is no "separation of powers" between the
executive and legislative branches of government. The head of
the executive branch, the cabinet, draws its personnel and its
power to govern from the legislative branch, the Parliament;
and the cabinet controls the Parliament. 12
I think that the following excerpts from Fajgen-
baum and Hanks' are applicable also to the
Canadian context:
This legal personality of the executive government is repre
sented by the Crown, by the Queen: that is, the law regards the
government as a legal person and that person is the Queen.
However, in this context the terms "the Crown" and "the
Queen" have become depersonalized. The terms refer, not to
the Queen in her personal capacity, but to the office of
monarch or the institution of the monarchy. When we talk of
the Crown in the context of Australian government in the late
twentieth century, we refer to a complex system of which the
formal head is the monarch. We do not refer to a replica of
sixteenth century English government, where real power was
vested in and exercised by the monarch personally. Rather, we
mean that collection of individuals and institutions (ministers,
public servants, a Cabinet, the Executive Council, a Governor
or Governor-General, and statutory agencies) which exercise
the executive functions of government.
The law sees these individuals and institutions as agents of
the Crown, and a whole range of executive functions as acts of
the Crown. Indeed, many important decisions and actions of
government are announced and performed as if they were
decisions and actions of the Queen. The declaration of war or
peace, the signing of international treaties, the appointment of
judges and Cabinet ministers, the summoning or dissolution of
parliament and the promulgation of a host of regulations, rules
and orders which direct and control many aspects of the
community's affairs all of these are carried out as if they
reflected the personal wishes of the Queen. And many other
vital governmental functions, while not performed in the name
of the Queen, are entrusted to ministers and public servants
who act as servants of the Crown, not as private individuals
when they perform the tasks committed to them.
• • •
[5.003] We must, of course, remember that this notion of
the Crown as the personification of the government is largely a
facade, a relic of medieval reality, retained in this more popul
ist age because it is a convenient facade. The supposed power of
the Queen is tempered, indeed controlled, by her principal
12 Constitutional Law of Canada, 2nd ed. (1985), at pp. 195,
196, 203 (footnotes omitted).
servants or ministers who in turn rely for their positions upon
the tolerance and support of their political colleagues within
and outside of parliament. The formal legal rules, to which the
courts, in their sentimental conservatism, have adhered, are
very much qualified by conventions which determine how the
legal powers are to be exercised. 13
Therefore, in my view, when an Act of Parlia
ment refers to "federal projects", it would require
express words to exclude from these projects those
projects so-called planned, made and acted upon
by the Governor in Council.
The Guidelines
I now turn to the Guidelines.
The validity of the Guidelines was not attacked
by the appellants and I must therefore assume that
they are valid and that they respect the limits set
out by the enabling statute. This assumption is one
of the major difficulties of the present case
because we are confronted with the task of inter
preting a presumably valid regulation that may
well be, if my brother MacGuigan's interpretation
is correct, at variance with its enabling statute as I
interpret it. If, however, there is an interpretation
of the Guidelines which is more in accordance with
the Act, that interpretation should be favoured for
regulations, as much as their enabling statute are
"deemed remedial" and must be given "such fair,
large and liberal construction and interpretation as
best ensures the attainment of [their] objects", to
use the words found in section 12 of the Interpre
tation Act [R.S.C., 1985, c. 1-21] which applies,
because of the definition of "enactment" and
"regulation" in section 2, to acts as well as to
regulations and orders. As Driedger puts it,
The intent of the statute transcends and governs the intent of
the regulations. 14
The Guidelines apply, under section 6, to "any
proposal (a) that is to be undertaken directly by an
initiating department; (b) that may have an envi
ronmental effect on an area of federal responsibili
ty" and section 2 defines "proposal" as including
"any initiative, undertaking or activity for which
the Government of Canada has a decision making
13 Fajgenbaurn and Hanks' Australian Constitutional Law,
2nd ed., (1980), at pp. 339-340.
14 Construction of Statutes, 2nd ed. (1983), at p. 247.
responsibility". I underlined the words "proposal"
and "any" and the expressions "Government of
Canada" and "area of federal responsibility" to
illustrate that the Guidelines, in accordance with
the Act, are meant to apply to any activity for
which the Government of Canada, and not a spe
cific department, Minister or body, has a decision-
making responsibility. As I understand the Guide
lines, they apply whenever, on behalf of the Gov
ernment of Canada, a decision-making responsibil
ity is involved which has environmental
implications.
The emphasis has been put by the learned Trial
Judge and by the respondents on the words "ini-
tiating department" which relate to the adminis
tration of the Guidelines. I would rather put the
emphasis on the words "proposal" and "Govern-
ment of Canada", which relate to the "applica-
tion" of the Guidelines. There is no requirement,
in the definition of "proposal", that it be made by
an initiating department within the meaning of the
Guidelines. ' 5 The intention of the drafter seems to
be that whenever there is an activity that may have
an environmental effect on an area of federal
responsibility and whoever the decision-maker may
be on behalf of the Government of Canada, be it a
department, a Minister, the Governor in Council,
the Guidelines apply and it then becomes a matter
of practical consideration, when the final decision-
maker is not a department, to find which depart
ment or Minister is the effective original decision-
maker or the effective decision-undertaker, for
there is always a department or a Minister
involved "in the planning process" and "before
irrevocable decisions are taken" 16 or in the "direct
undertaking" of a proposal." In my view, the
Guidelines once they apply to a proposal, are to be
complied with by the department(s) or Minis
ter(s), who for all practical purposes, is or are
responsible for the planning and undertaking of
the proposal. Where, as here, the Governor in
Council steps in at the last moment to make a
decision "on the recommendation of the Minister
of Transport", there is a "proposal" for the pur-
15 See paragraph 6(b).
16 Section 3.
17 See paragraph 6(a)
poses of the application of the Guidelines and the
"initiating department" for the purposes of the
administration of the Guidelines is admittedly the
Department of Transport. To hold otherwise
would, in my view, defeat the purpose of the
Guidelines and of the Department of the Environ
ment Act.
I note, as did my brother MacGuigan, that both
the Minister of the Environment and the Minister
of Transport took the position in the House of
Commons and before the Standing Committee on
Transport that the Guidelines applied to the VIA
Rail reorganization and that the Department of
Transport was the "initiating department". While
these ministerial comments are not binding in law,
they nevertheless indicate that for all practical
purposes the Department of Transport considered
itself, correctly in my view, as the "initiating
department".
It is the Minister of Transport who announced
"the federal government's decision concerning
VIA's 5 year corporate plan", "informed members
of the VIA board of directors of the government's
new policy approach", "received representations
from many Canadians", outlined "the govern
ment's plan for a restructured rail passenger net
work", said that "naturally the potential environ
mental impact of any change to VIA formed an
important part of my consideration of VIA's cor
porate plan", "directed that the potential environ
mental impact be examined carefully by my offi
cials", and announced "the results of our study". is
It is the Minister of Transport who filed a
document entitled "Process for discontinuance" ' 9
which contained the following explanation:
Parliament established those powers (in the National Transpor
tation Act) * to assure that the government, rather than a
regulatory body, would have ultimate responsibility and
accountability.
18 Appeal Book, at pp. 19, 22.
19 Appeal Book, at p. 35.
* Editor's Note: The title of the Act should read National
Transportation Act, 1987.
Whatever may be the legal value of that docu
ment, and I suspect there is none, it nevertheless
confirms how little if any real "decision making
authority" VIA had in fact with respect to the
proposal.
Counsel for the respondents submitted at the
hearing that if the Guidelines applied the "initiat-
ing department" would be VIA. Such submission,
in my view, is totally contradicted by the evidence
I have just referred to. There was only one "initiat-
ing department" in this whole affair, it was the
Department of Transport; there was only one
"decision making authority" for the purposes of
the Guidelines, and it was the Minister of Trans
port. While it is arguable that the final decision-
making authority was in law the Governor in
Council, there is nothing in the Guidelines as I
read them in conjunction with the Act that
imports a notion of "finality", not even of "legal-
ity" in the expression "decision making authority".
I therefore fully agree with the appellants when
they state that "when the Governor in Council
deals with a proposal on the basis of a recommen
dation of a Minister, that Minister has exercised a
power of decision in respect of that proposal" and
when they submit that "the Minister of Transport
exercised a decision making authority on behalf of
the Government of Canada in respect of the Via
Rail cuts and was bound to apply the EARP
Guidelines Order".
The Governor in Council is also, in my view,
subject to the Guidelines even though he may not
be an "initiating department" for the purposes of
the Guidelines. If, in exercising its statutory
powers under section 64 of the National Trans
portation Act, 1987, the Governor in Council is
making a proposal that may have an environmen
tal effect on an area of federal responsibility, the
Department of the Environment Act and the
Guidelines apply to that proposal for it is an
activity for which the Government of Canada has
a decision-making responsibility. It then becomes
by law and by regulation a condition precedent to
the exercise of its statutory power that the Gover
nor in Council ascertain itself that the initiating
department complies with the Guidelines. As Mr.
Justice Estey put it in Attorney General of Canada
v. Inuit Tapirisat of Canada et al.:
Let it be said at the outset that the mere fact that a statutory
power is vested in the Governor in Council does not mean that
it is beyond review. If that body has failed to observe a
condition precedent to the exercise of that power, the court can
declare that such purported exercise is a nullity.'
Respondents submit, alternatively, that the
Guidelines do not apply to a decision to reduce the
level of an undertaking or activity which has been
ongoing prior to the coming into force of the
Guidelines. I fail to see any merit in this proposi
tion. Nothing in the Guidelines indicates that they
would not apply to proposals reducing the level of
existing undertakings or activities. The VIA Rail
reorganization is a "new federal project, program
and activity" within the meaning of subparagraph
5(a)(ii) of the Act and an "initiative, undertaking
or activity" within the definition of "proposal" in
the Guidelines. I note that the wording in the
Guidelines is not similar to the wording in the Act
but the meaning of the various expressions used
appears to be the same and is quite far-reaching.
The VIA Rail reorganization is also, as recognized
by the Ministers involved, a proposal "that may
have an environmental effect on an area of federal
responsibility", even though minimal, within the
meaning of paragraph 6(b).
Respondents also submit that, in any event, the
appellants' interpretation of the requirements of
the Guidelines is incorrect. I need not here inter
pret these requirements, for the evidence is conclu
sive that whatever was done was not done pursuant
nor in relation to the Guidelines.
At the hearing, respondents argued that it would
be a strange result if the Guidelines applied to the
Governor in Council and did not apply, because of
section 7, to corporations listed in Schedule D to
the Financial Administration Act [R.S.C. 1970, c.
F-10]. However strange that result might be, and
it is not of my domain to comment on that, it
derives not from the Guidelines but from the Act
itself which, at section 6, provides that the Guide
20 [1980] 2 S.C.R. 735, at p. 748.
lines are for use by such corporations "where
appropriate".
I take some comfort in my interpretation of the
Act and the Guidelines in various decisions of this
Court. In Friends of the Oldman River, my col
league Mr. Justice Stone, speaking for the Court,
referred to [at page 39] "the true and, indeed, very
far-reaching impact of the Guidelines Order" and
added [at page 39]:
The dam project to which the approval related fell squarely
within the purview of paragraph 6(b) of the Guidelines Order
as a "proposal ... that may have an environmental effect on an
area of federal responsibility". This "proposal" resulted in the
Department of Transport becoming the "initiating department"
responsible as the "decision-making authority".
Commenting on the word "proposal", he went on
to say [at page 44]:
Although the word "proposal" in its ordinary sense may mean
something in the nature of an application, in the Guidelines
Order it is a defined word which is used to encompass a scope
far broader than its ordinary sense.
• • •
In such circumstances, if any "initiative, undertaking or activi
ty" exists for which the Government of Canada has "a decision
making responsibility" a "proposal" also exists.
With respect to the respective roles of the Minister
of Transport and of the Minister of Fisheries and
Oceans in the circumstances of that case, Mr.
Justice Stone concluded [at page 48]:
... that the Minister of Fisheries and Oceans as the Minister
responsible for the protection of fish habitat and fisheries
resources in the Oldman River was required to play his full part
under the Guidelines Order. It then remained for the Minister
of the "initiating department", Transport, to grant or refuse the
approval at the end of their review process. 21
In Can. Wildlife Fed. Inc. v. Can. (Min. of the
Environment), 22 this Court held that the Guide
lines Order was mandatory:
... the repeated use of the word "shall" throughout, and
particularly in s. 6, 13 and 20, indicates a clear intention that
21 Friends of the Oldman River Society v. Canada (Minister
of Transport), [1990] 2 F.C. 18 (C.A.).
22 [1990] 2 W.W.R. 69 (F.C.A.).
the Guidelines shall bind all those to whom they are addressed,
including the Minister of the Environment himself. 23
In the Trial Division, Mr. Justice Cullen had held
that:
At first glance it appears that the EARP Guidelines are for use
only by departments, boards, agencies of the Government of
Canada (see definition of "department" and "initiating depart
ment" in the Order) and there is some merit to the respondent
Minister's position that the Project is a provincial undertaking
subject only to provincial regulations and guidelines. However,
section 6 of the EARP Guidelines Order specifically provides
that these guidelines shall apply to any proposal that may
have an environmental effect on an area of federal responsibil
i ty . 24
At page 328, he referred to the fact that the
Minister was "a participant" in the project "(in
that he issued the licence under the International
River Improvements Act)".
In Naskapi-Montagnais Innu Assn. v. Canada
(Minister of National Defence), Madame Justice
Reed expressed the following view [at page 392
F.C.]:
... I do not agree that because a proposal has been implicitly
authorized by the Governor in Council, as a result of being the
subject of an international agreement ... , it therefore falls
outside the scope of the EARP Guidelines Order. I think
counsel for the applicant's argument is correct, that one must
look at the decisions and actions which have to be taken, by the
relevant government department, to implement the treaty
which was entered into. It is to those decisions and activities
that the EARP Guidelines Order may attach. 25
The jurisprudence of the Federal Court appears
to give the Guidelines a maximum of authority
and efficiency and to interpret them in such a way
as to make them adaptable to the reality of
administrative machinery and applicable to all
"participating" departments or Ministers at what
ever stage their participation occurs. I consider
that one must look at the actual decisions and
actions which have taken place and which have to
be taken by the relevant government departments
to decide which department(s) is (are) at a specific
point in time the de facto deciding authority with
respect to a federal project or initiative and there
fore bound by the Guidelines.
23 Per Hugessen J.A. at p. 71.
24 [1989] 3 F.C. 309, at pp. 322-323.
25 [1990] 3 F.C. 381 (T.D.).
Once a distinction is drawn between the effect
and purpose of the Act and the means established
to achieve such effect and purpose, and between
the application and the administration of the
Guidelines adopted pursuant to that Act, it
becomes possible to conclude that the Order
applied in this case to the Department of Trans
port and constituted a condition precedent to the
exercise of the statutory power vested in the Gov
ernor in Council by the National Transportation
Act, 1987.
Exercise of Discretion
It is settled law that the remedy of certiorari is
discretionary in nature and that where the circum
stances warrant, it may be denied to applicants
who have otherwise established a legal entitlement
to it. 26
The Trial Judge having found that the appel
lants were not entitled to certiorari, need not
address the issue of denial. I, on the contrary, need
to.
The grounds on which a court may refuse to
exercise its discretion to issue certiorari are well
established. They include:
(1) unreasonable delay on the part of the appli
cant seeking the remedy;
(2) the fact that the delay leaves nothing left for
the court to prohibit;
(3) the fact that no useful purpose would be
served by granting the remedy; and,
(4) the fact that to grant the order would be
detrimental to good administration. 27
In the present instance, the Order in Council
was enacted on October 4, 1989 and states on its
face that the new passenger train network is to be
in place as of January 15, 1990. On the same day
as the Order in Council was enacted, the results of
the environmental study on the impact of restruc-
26 Harelkin v. University of Regina, [1979] 2 S.C.R. 561.
27 See Jones and de Villars, Principles of Administrative Law
(1985), at pp. 372-375; de Smith's Judicial Review of
Administrative Action, 4th ed., at pp. 422-424.
turing were announced to the public in a summary
form; they were to be published in their totality on
October 11, 1989. Prior to October 4, 1989, the
Minister of Transport had for several months
received representations from a wide range of citi
zens and organizations, and there is no record that
the appellants made any such representations. The
House of Commons Standing Committee on
Transport held public meetings and submitted its
report on November 8, 1989; none of the appel
lants testified at the public hearings, but Mr.
Angus was a member of that Committee and the
Federation of Canadian Municipalities may be
said to have represented, amongst others, the City
of Thunder Bay, although we do not know if these
representations concerned environment as well as
cuts in services. The Committee requested that the
Government table a comprehensive response, but
that response never came. It is worth mentioning
that the Committee recommended a moratorium
on the announced service cuts to VIA Rail. The
appellants served the respondents with their
application attacking the validity of the Order in
Council on January 9, 1990 returnable January
12, 1990.
In their affidavit material, the appellants pro
vided no explanation as to why the application had
not been filed in a more timely fashion. The
affidavit was signed by only one of the applicants,
Mr. Angus; it did not contain the resolution of the
City Council of the Corporation of the City of
Thunder Bay authorizing the City to participate in
the proceedings, so that we do not know what was
the specific interest of that City in the proceedings;
it referred in passing to the other appellant, Green-
peace Canada, the activities of which I have no
judicial knowledge, in these words:
I am informed by John Bennett, an official of Greenpeace
Canada, and do verily believe that Greenpeace Canada has also
approved participation in these proceedings."
While they did file their notice of appeal on
January 15, 1990, the appellants did not file their
application for an expedited hearing of their
appeal until February 23, 1990. In an affidavit
filed in support of the latter application, one of the
appellants recognized that the process of imple
menting the reduction in the VIA Rail network
28 Appeal Book, at p. 5.
commenced on January 15, 1990 with the elimina
tion of certain services and the lay-off of
employees, and that the disposition of equipment
and rolling stock would severely impede VIA's
ability to operate the discontinued services should
the Order in Council be set aside.
In this case, with some regret, I have reached
the conclusion that I should exercise my discretion
and deny certiorari for a series of grounds which,
taken individually, might not have led me to that
conclusion but which, combined with each other,
produce a strong case against the appellants.
The delay, however short and negligible,
remains unexplained and while I would not have
denied certiorari on that sole ground, I find that
total failure to explain even through a short affida
vit the reasons for the delay forces the Court to
speculate as to why applicants waited until the last
possible moment to file their proceedings and
speculations of that type are not the proper
domain of the courts. Applicants who do not
bother to explain are courting disaster.
The concerns of the appellants are also mostly
unexplained. While I would not require applicants
seeking a certiorari order to explain in full detail
why they are seeking such a remedy, I would at
least expect more indications than those found in
the affidavit and supporting material. In the case
at bar, as previously noted, the appellants are not
known to have expressed their concerns when the
occasion arose; the appellant City has not filed the
resolution of its Council authorizing the proceed
ings, so that we have no idea as to the grounds of
the intervention which was formally authorized
only the day preceding its filing in Court; the
appellant Greenpeace Canada is only referred to in
passing in Mr. Angus' affidavit. I would be forced
again, therefore, to speculate about the concerns of
the appellants.
More importantly, the evidence filed by the
appellants does not show nor intend to show nor
suggest even prima facie that had the Guidelines
been complied with, the conclusion of the report
tabled in the House of Commons might have been
different. The Standing Committee on Transport,
of which the appellant Angus was a member, did
not even make any reference to the Guidelines in
its report criticizing the proposal. There is nothing
in the file which points if only prima facie to an
immediate and direct effect of the proposal on the
quality of the environment as opposed, for exam
ple, to the proposals considered in the Oldman
River case and in the Canadian Wildlife case. In
the Oldman River case, my colleague, Mr. Justice
Stone, said that [at page 34]:
One need not look far to see that construction and operation
of the Oldman River dam and reservoir may have an environ
mental effect on areas of federal responsibility. At least three
such areas would appear to be so affected, namely, fisheries,
Indians and Indian lands. In my view, the evidence speaks both
loudly and eloquently that these particular areas of federal
responsibility might, indeed, be adversely affected by the pres
ence of dam and reservoir.
In this instance, the least I can say is that there
is no loud nor eloquent evidence and while I need
not and should not pre-judge what the results of an
EARP review would be, I am of the view that
before granting certiorari on the grounds that no
such review was made when the conclusion of the
review is not even binding on the relevant Minis
ter, I should have before me some evidence to the
effect that the results might have been different.
As Madame Justice Reed noted in denying orders
of mandamus and certiorari in the Naskapi- Mon-
tagnais case [at pages 406-407 F.C.]:
If there was clear evidence that the effect on the environment
of the on-going and increasing low level flying activity was
extensive and damaging, that would be a factor which would
lead a court to grant the order sought. But, there was no such
clear evidence placed before me. There is a lot of speculative
and hypothetical comment set out in some of the material
which was filed but no concrete evidence ... the absence of any
clear and unequivocal evidence respecting significant environ
mental damage is a factor that is relevant in refusing the order
sought.
Courts should be reluctant, in exercising discre
tionary powers in cases where the alleged illegality
is the failure to order a review which, whatever its
conclusion, would not be binding, to interfere with
major public undertakings at the last possible
moment at the request of applicants who have
failed to explain why they have acted so late, who
have failed to indicate at least in a general way
their concerns or those of the public and who have
failed even to suggest that what they are seeking
might serve some useful purpose. Courts should
not exercise their discretion to grant certiorari
orders in a vacuum or on mere speculation as to
who the applicants are, as to what they want and
as to what purpose will be served by the granting
of the order.
Using therefore my discretionary powers and
without condoning in any way what I consider to
be an unlawful precedent by the Governor in
Council and by the Minister of Transport, I would
in the very special circumstances of this case deny
certiorari and dismiss the appeal, without costs.
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