T-3307-90
Her Majesty the Queen in Right of Alberta
(Applicant)
v.
Minister of the Environment, Honourable Robert
De Cotret and Environmental Assessment Panel
Appointed by the Minister of the Environment to
Review the Oldman River Dam Project Composed
of William A. Ross, Helen Tremaine, James Glad-
stone, Michael Healey, Rolf Kellerhaus and Tracy
Anderson (Respondents)
INDEXED AS: ALBERTA V. CANADA (MINISTER OF THE ENVI
RONMENT) (T.D.)
Trial Division, MacKay J.—Edmonton, April 25;
Ottawa, May 21, 1991.
Constitutional law — Distribution of powers — Environ
mental Assessment Panel established under Environmental
Assessment and Review Process Guidelines Order to review
Oldman River dam project — Alberta seeking certiorari,
prohibition and/or injunction to prevent Panel from proceeding
with public review of project on grounds Panel's terms of
reference unconstitutional application of Minister's power or
discretion under Guidelines Order — Province's application
adjourned sine die pending S.C.C. decision in Friends of the
Oldman River Society v. Canada (Minister of Transport) as to
whether EARPGO so broad as to offend, ss. 92, 92A of
Constitution Act, 1867.
Environment — Oldman River dam project Environmen
tal review — Environmental Assessment Panel established
under EARPGO — Application to halt review process on
ground Panel's terms of reference unconstitutional application
of Minister's power under EARPGO — Application adjourned
sine die pending S.C.C. decision on whether EARPGO uncon
stitutional as encroaching on provincial jurisdiction.
Practice — Stay of proceedings — Province seeking certio-
rari, prohibition and/or injunction to prevent Environmental
Assessment Panel from proceeding with public review of dam
construction project on ground Panel's terms of reference
unconstitutional — Minister seeking stay of proceedings on
ground issue before S.C.C. — Test in Association of Parents
Support Groups In Ontario (Using Toughlove) Inc. v. York et
al. applied: applicant for stay must establish interest of justice
supports stay and outweighs respondent's right to proceed with
cause of action — Stay exceptionally granted though effec-
tively postponing access to relief which party otherwise having
right to pursue — Although serious issue to be tried, post
ponement in public interest — Balance of convenience in
Minister's favour — Just and appropriate to adjourn matter
sine die pending S.C.C. decision — Interests of justice and
efficacy of judicial system best served by adjourning consider
ation of Province's application.
This case dealt with the environmental review of the Oldman
River dam project. The federal Minister of the Environment
appointed an Environmental Assessment Panel to review the
project. The Province of Alberta sought to halt the review by
means of certiorari, prohibition or injunction on the grounds
that the terms of reference issued by the Minister were an
unconstitutional application of his power or discretion under
the Environmental Assessment and Review Process Guidelines
Order. In response thereto, the Minister moved to have the
Province's application adjourned sine die pending the decision
of the Supreme Court of Canada on an appeal, heard in
February 1991, from the judgment of the Federal Court of
Appeal in Friends of the Oldman River Society v. Canada
(Minister of Transport) where the constitutional issue would be
dealt with. By late April 1991, the dam was about 98%
complete and the whole project, 94% complete.
Basically, the Province questioned whether the federal gov
ernment could provide for such a broadly based review of
environmental, socio-economic and safety concerns as to
encompass matters ordinarily within provincial legislative juris
diction under sections 92, 92A, 95 and 109 of the Constitution
Act, 1867.
Held, the Province's application should be adjourned sine
die.
Since the Supreme Court has declined to add the question of
the validity of the terms of reference to the matters for
consideration on appeal, this application, based on the argu
ment that the terms of reference are an unconstitutional
application of the Guidelines Order, was not "a claim ... being
proceeded with in another court" within the meaning of para
graph 50(1)(a) of the Federal Court Act. There is a serious
issue to be tried: the validity of the Panel's terms of reference.
The question is whether a stay or an adjournment should be
granted, the effect of which would be to postpone resolution of
the issue.
Whatever the outcome, either of the parties was likely to
suffer some harm but none that would be irreparable. However,
the public interest would be best served, pending the decision of
the Supreme Court of Canada, by assuming the validity of the
terms of reference of the Panel. The appropriate test herein was
that applied in Association of Parents Support Groups In
Ontario (Using Toughlove) Inc. v. York et al.: the applicant for
a stay must establish that the interest of justice clearly supports
a stay and outweighs the respondent's right to proceed with the
cause of action.
The interests of justice, and the efficacy of the judicial
system, would be best served by adjourning consideration of the
Province's application because (1) the validity of the Guidelines
Order will likely be commented upon in the near future by the
Supreme Court; (2) even if the Supreme Court does not deal
directly with the issue raised here, that issue could be more
readily resolved and perhaps more definitely argued in light of
the Supreme Court decision. Accordingly, it would be unrea
sonable for a motions judge to decide an issue closely related to
questions under consideration by the Supreme Court of
Canada.
This case warranted the unusual step of adjourning a matter
in circumstances which effectively postponed access to relief
which a party otherwise had a right to pursue. Although there
was a serious issue to be tried, postponing consideration of that
issue at this stage was in the public interest. Interrupting the
review process at this stage would be more disruptive and
create greater harm to the process of public environmental
review than continuing that process pending the decision of the
Supreme Court.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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. 91, 92, 92A (as enacted by the
Constitution Act, 1982), 95, 109.
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 50(1).
Federal Court Rules, C.R.C., c. 663, R. 323.
Government Organization Act, 1979, S.C. 1978-79, c. 13,
s. 14.
CASES JUDICIALLY CONSIDERED
APPLIED:
Association of Parents Support Groups In Ontario
(Using Toughlove) Inc. v. York et al. (1987), 14 C.P.R.
(3d) 263 (F.C.T.D.); Edmonton Friends of the North
Environmental Society v. Canada (Minister of Western
Economic Diversification) (1990), 69 D.L.R. (4th) 143;
75 Alta. L.R. (2d) 1; 34 F.T.R. 137 (F.C.T.D.); Little
Red River Band of Indians v. Canada (Minister of
Fisheries and Oceans), see Edmonton Friends of the
North Environmental Society v. Canada (Minister of
Western Economic Diversification).
DISTINGUISHED:
Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321;
[1987] 3 W.W.R. 1; 46 Man.R. (2d) 241; 25 Admin.
L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R.
341.
CONSIDERED:
Friends of the Oldman River Society v. Canada (Minis-
ter of Transport), [1990] 1 F.C. 248; [1990] 2 W.W.R.
150; (1989), 70 Alta. L.R. (2d) 289; 4 C.E.L.R. (N.S.)
137; 30 F.T.R. 108 (T.D.), revd by [1990] 2 F.C. 18;
(1990), 68 D.L.R. (4th) 375 (C.A.).
REFERRED TO:
Northwestern Utilities Ltd. et al. v. City of Edmonton,
[1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R.
(3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Ferguson
Bus Lines Ltd. v. Amalgamated Transit Union, Local
1374, [1990] 2 F.C. 586; (1990), 68 D.L.R. (4th) 699; 43
Admin. L.R. 18; 108 N.R. 293 (C.A.); R. v. Crown
Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; (1988), 48
D.L.R. (4th) 161; [1988] 3 W.W.R. 385; 25 B.C.L.R.
(2d) 145; 40 C.C.C. (3d) 289; 84 N.R. 1; Fowler v. The
Queen, [1980] 2 S.C.R. 213; [1980] 5 W.W.R. 511;
(1980), 113 D.L.R. (3d) 513; 53 C.C.C. (2d) 97; 9
C.E.L.R. 115; 32 N.R. 230; Northwest Falling Contrac
tors Ltd. v. The Queen, [1980] 2 S.C.R. 292; (1980), 113
D.L.R. (3d) 1; [1981] 1 W.W.R. 681; 53 C.C.C. (2d)
353; 9 C.E.L.R. 145; 2 F.P.R. 296; 32 N.R. 541; Canadi-
an National Railway v. Courtois, [1988] 1 S.C.R. 868;
(1988), 15 Q.A.C. 181; 85 N.R. 260; R. v. Amway Corp.,
[1989] 1 S.C.R. 21; (1989), 56 D.L.R. (4th) 309; 33
C.P.C. (2d) 163; 68 C.R. (3d) 97; 37 C.R.R. 235; [1989]
1 C.T.C. 255; 91 N.R. 18; Vickery v. Nova Scotia
Supreme Court (Prothonotary), No. 21598 (S.C.C),
judgment dated 28/3/91, Stevenson J. not yet reported.
AUTHORS CITED
Hogg, Peter W., Constitutional Law of Canada, 2nd ed.,
Toronto: Carswell Co. Ltd., 1985.
COUNSEL:
B. Zalmonawitz and G. D. Chipeur for
applicant.
J. C. DePencier for respondent Minister of the
Environment.
W. A. Tilleman and S. J. Hammel for
respondent Environmental Assesment Panel.
M. W. Mason for intervenor Friends of the
Oldman River Society.
SOLICITORS:
Milner & Steer, Edmonton, for applicant.
Deputy Attorney General of Canada for
respondent Minister of the Environment.
Cook, Duke, Cox, Edmonton, for respondent
Environmental Assessment Panel.
Gowling, Strathy & Henderson, Ottawa, for
intervenor Friends of the Oldman River
Society.
The following are the reasons for orders ren
dered in English by
MACKAY J.: The applicant, Her Majesty The
Queen in Right of Alberta, ("the Province") by
return of motion dated January 21, 1991, seeks
relief originally applied for by motion dated
December 17, 1990. The original motion sought
both interlocutory relief by way of injunction and
permanent relief in the nature of orders noted
below in relation to the terms of reference issued
by the respondent Minister of the Environment
("the Minister") for the respondent Environmental
Assessment Panel ("the Panel") appointed by that
Minister to review the Oldman River dam project.
On December 20, 1990, my colleague Mr. Jus
tice Rouleau considered, and dismissed, the origi
nal motion in so far as it related to interlocutory
relief, an application for an injunction to preclude
the Panel from conducting a public review of the
project until the determination by the Supreme
Court of Canada of the appeal from the judgment
of the Federal Court of Appeal dated March 13,
1990, in Friends of the Oldman River Society v.
Canada (Minister of Transport).' This application
seeks an order in the nature of certiorari quashing
the terms of reference issued by the Minister
setting out the mandate and scope of the Panel's
review, and an order in the nature of prohibition,
1 [1990] 2 F.C. 18 (C.A.).
or in the alternative, an injunction, preventing the
Panel from proceeding with a public review of the
project. The grounds of the motion for this relief
sought under section 18 of the Federal Court Acte
are that the terms of reference issued by the
Minister are said to be an unconstitutional
application of his power or discretion under the
Guidelines Order, i.e., the Environmental Assess
ment and Review Process Guidelines Order.'
When this application was heard in Edmonton
on April 25, 1991, there was heard at the same
time a motion of the Minister, dated January 29,
1991, that the Province's application for perma
nent relief be stayed or adjourned sine die, pursu
ant to subsection 50(1) of the Federal Court Act,
or Rule 323 of the Federal Court Rules [C.R.C.,
c. 663], pending the decision now anticipated fol
lowing argument in February, 1991, before the
Supreme Court of Canada.
When this matter was heard counsel appeared
for the Province, for the Minister, for the Panel
and for the Friends of the Oldman River Society
("FORS"). Counsel present at the hearing con
cerning interlocutory relief in December, 1990,
were agreed that the motion then made by counsel
on behalf of FORS, for standing in this matter had
been orally granted, and the Society was con
sidered to have status as a party respondent by my
colleague Mr. Justice Rouleau. The Court file
contained no written record of this. With consent
of counsel for the applicant and the Minister, I
granted an order that FORS be added as a party
respondent in this application from December 20,
1990.
Counsel for the Panel submitted in advance of
the hearing a memorandum and authorities con
cerning the merits of certain aspects of the
application by the Province, apparently relying for
2 R.S.C., 1985, c. F-7 as amended.
3 SOR/84-467 made pursuant to subsection 6(2) of the Gov
ernment Organization Act, 1979, S.C. 1978-79, c. 13, s. 14.
the basis of his participation upon Northwestern
Utilities Ltd. et al. v. City of Edmonton. 4 It was
indicated that he did not propose to speak to the
motion of the Minister that the proceedings be
adjourned sine die. I indicated that if the motion
to adjourn was dismissed and argument was
directed to the merits of the application by the
Province, I would first resolve whether counsel for
the Panel should be heard at all on one side or
other of the main issue here involved in view of the
Panel's creation by the Minister, its lack of exper
tise in relation to the issue of the constitutional
validity of its terms of reference and in view of the
comments of Mr. Justice Mahoney of the Court of
Appeal in Ferguson Bus Lines Ltd. v. Amal
gamated Transit Union, Local 1374. 5 Since, after
hearing argument on behalf of the applicant, the
Minister, and FORS, I determined that the motion
by the Minister should be allowed and the applica
tion by the Province should be adjourned sine die,
it was unnecessary on this occasion to resolve the
status of the Panel as a participant in submissions
and argument before the Court, and written sub
missions on behalf of the Panel have not been
considered for the order issued or for these
reasons.
It was agreed that the Province would proceed
and present its application, to be followed by
presentation of the Minister's application for a
stay or adjournment and of FORS in support of
the motion of the Minister, and then the Province
would have an opportunity to respond to the argu
ment advanced for a stay or adjournment. After
argument on that motion, the Court would deter
mine that issue, and if that application were dis
missed, counsel for the respondents would then
respond to the merits of the Province's application,
with opportunity thereafter for reply by counsel
for the Province.
After argument on the preliminary procedural
application to stay or adjourn this proceeding, I
ordered that the application of the Minister be
allowed and the application of the Province be
adjourned sine die, without full argument on the
merits of the Province's application. At that time
4 [1979] I S.C.R. 684.
5 [1990] 2 F.C. 586, at p. 591.
my reasons for doing so were outlined orally but I
indicated that I would provide written reasons to
follow. These are those written reasons.
Background
The applications considered herein arise follow
ing considerable litigation concerning the applica
tion of the Guidelines Order to the Oldman River
dam project. A summary overview of that litiga
tion and of the steps leading to creation of the
respondent Panel and initiation of its work provide
the context in which these applications are made.
The final stage in earlier proceedings, an appeal
to the Supreme Court of Canada, was heard on an
expedited basis in February, 1991, and a decision
of the Court is awaited. That process began with
an application to this Court for judicial review of
the decision of the Minister of Transport, under
the Navigable Waters Protection Act, 6 approving
the project for construction of a dam on the
Oldman River by the Province. That application,
which sought an order that federal Ministers
comply with the Guidelines Order, was dismissed
by Associate Chief Justice Jerome in Friends of
the Oldman River Society v. Canada (Minister of
Transport).' That decision was reversed by the
Court of Appeal which quashed the approval for
the project issued by the Minister of Transport and
ordered that Minister and the Minister of Fisher
ies and Oceans to comply with the Guidelines
Order. 8
The Province sought, and on September 13,
1990, the Supreme Court of Canada granted, leave
to appeal the decision of the Federal Court of
Appeal. In its application for leave the Province
raised, for the first time, constitutional issues con
cerning the Guidelines Order and its application to
the project. On October 30, 1990, the Chief Jus
tice of the Supreme Court of Canada stated a
6 R.S.C. 1985, c. N-22.
7 [1990] 1 F.C. 248 (T.D.).
8 Supra, note 1.
constitutional question to be considered in the
appeal by the Province:
Is the Environmental Assessment and Review Process Guide
lines Order, SOR/84-467 so broad as to offend ss. 92 and 92A
of the Constitution Act, 1867 and therefore constitutionally
inapplicable to the Oldman River Dam owned by the appellant,
Her Majesty the Queen in right of Alberta?'
On October 25, 1990, FORS initiated applica
tion for an order of mandamus requiring the Min
ister of the Environment to appoint a panel to
conduct a public review pursuant to the Guidelines
Order. That application was set down for hearing
on November 20 but was adjourned sine die when
the Panel was appointed by the Minister on
November 16.
Subsequently, after announcement by the Min
ister of the terms of reference and constitution of
the Panel for a public assessment of the Oldman
River dam project pursuant to the Guidelines
Order, the Province applied to the Supreme Court
of Canada to have the constitutional question
amended by adding a second question concerning
the terms of reference of the panel, as follows:
Are the terms of reference for the Oldman River Dam
Environmental Assessment Panel issued by the Minister of the
Environment under the Environmental Assessment and Review
Guidelines Order [sic], SOR/84-867 so broad as to offend ss.
92 and 92A of the Constitution Act and therefore constitution
ally invalid?
The Supreme Court of Canada, on December 14,
denied this application to amend the constitutional
question already stated for the appeal but granted
the Province's application, made at the same time,
to introduce the Panel's terms of reference as new
evidence before the Supreme Court.
The Ministers of Transport and of Fisheries and
Oceans were added as appellants to the appeal in
which the FORS was the respondent. The Attor
neys General of six other provinces, the govern
ment of the Northwest Territories, four organiza
tions of native peoples and six organizations of
9 Supreme Court of Canada, Bulletin of Proceedings,
November 2, 1990, at p. 2262.
persons concerned with environmental or public
interest issues were intervenors before the
Supreme Court of Canada. On an expedited basis,
settled upon the application by FORS, that Court
heard the appeal on February 19 and 20, 1991,
when decision was reserved.
After the Supreme Court had declined to amend
the constitutional question before it, in December
1990 the Province initiated this application, con
sidered by Mr. Justice Rouleau on December 20 in
relation to interlocutory relief sought, and now
brought before this Court in relation to the perma
nent relief sought, concerning the terms of refer
ence of the Panel. The order of my colleague Mr.
Justice Rouleau, of December 20, was appealed by
notice filed December 28, 1990, though counsel for
the Province advised at the hearing of this applica
tion for permanent relief that notice of appeal had
now been withdrawn.
Through the same period as these legal proceed
ings were initiated and under way, following the
decision of the Federal Court of Appeal and in
accord with that Court's order, the Ministers of
Transport and of Fisheries and Oceans in April
1990 referred the matter of the Oldman River
dam project to the Minister of Environment for
public review pursuant to the Guidelines Order.
On November 16, 1990 the Minister of the Envi
ronment announced the appointment of the Panel
to conduct a public review under the Order, and
issued its terms of reference. Those terms are
referred to as "wide-sweeping" and objected to by
the Province. The terms include, in part, the
mandate:
to undertake a review of the potential environmental and
socio-economic effects of the Oldman River Dam project. The
Panel has the mandate to evaluate and make recommendations
on the design and safety of the proposed dam, the significance
of potential environmental and socio-economic effects of the
proposed dam and its operation, and options for mitigating
these effects. The Panel will submit its recommendations to the
Ministers of Environment, Transport, and Fisheries and Oceans
in the form of a report. 10
The Panel commenced public information meet
ings in Alberta in mid-December, after beginning
review of available information and background
information on the project. At the end of Decem-
ber a public letter was released by the Panel
describing its work to that date and its plans. In
January it released to the public a statement of its
operational procedures. In mid-March it issued
"Newsletter No. 1", a "Compendium of Submis
sions Received" as of February 11, and a state
ment of "Additional Information Requirements"
including perceived deficiencies in socio-economic
information which the Panel seeks to remedy. The
Panel has hired technical experts in a variety of
fields, some of which are said by the Province to
concern matters primarily within provincial
competence, and for certain information deficien
cies identified the Panel has indicated that a prime
source to be looked to for further information will
be the Province, as proponent of the project.
At the time this matter was heard in April, the
Panel reportedly was planning public meetings on
safety aspects of the dam in June 1991, but it did
not anticipate completion of its work in relation to
socio-economic aspects of the project or the com
mencement of public meetings about those aspects
before November 1991. Meanwhile, by late April,
construction of the project was reported to be
nearing completion, with the dam about 98% com
plete, and the entire project some 94% complete.
Diversion tunnels were closed in early April so that
the reservoir behind the dam is filling and may be
completely filled by the end of June with what is
now anticipated as a greater than normal spring
run-off from heavier than usual snow melt.
10 Terms of Reference for the Oldman River Dam Environ
mental Assessment Panel, Canada, Federal Environmental
Assessment Review Office, Vancouver.
Concerns of the Province
The motion for a stay or an adjournment by the
Minister is here considered in the context of the
concerns expressed on behalf of the Province as the
basis of its application for judicial review.
The Province urges that legislation in relation to
the environment is not a distinct class of subject,
or a "matter", under the enumerated powers of
Parliament or within its general power under sec
tion 91 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]]. Rather, regulation of the environment
concerns a collection of matters, some within the
legislative competence of Parliament and some
within the legislative competence of the provincial
legislatures." Further, the ancillary doctrine,
so-called, which limits the reach and effects of
federal legislative action upon areas of provincial
responsibility to those matters necessarily inciden
tal to the federal power, is of limited application in
extending federal authority in relation to the
environment. 12
It is conceded that a federal review in this case
might extend to matters within the legislative
competence of Parliament, e.g., navigable waters,
fisheries, Indians and lands reserved for them. The
Province does not concede, indeed it disputes, the
competence of the federal government acting
under the Guidelines Order to provide for a broad
ly based review of environmental, socio-economic
and safety concerns that encompass matters ordi
narily within provincial legislative competence
under sections 92, 92A, 95 and 109 of the Consti
tution Act, 1867.
" Hogg, Constitutional Law of Canada, (2nd ed. 1985), at p.
598; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R.
401, at pp. 423, 431 and 444, 445.
12 Fowler v. The Queen, [1980] 2 S.C.R. 213, at p. 226;
Northwest Falling Contractors Ltd. v. The Queen, [1980] 2
S.C.R. 292.
In this case it is urged that the terms of refer
ence of the Panel and the activities initiated by the
Panel are not limited to matters within federal
legislative competence. It is said various elements
evident in the Panel's activities demonstrate the
scope of its mandate, its failure to restrict its
review to matters properly of federal concern, and
its plans make apparent that it will consider a
variety of matters ordinarily within provincial
legislative competence. Thus, for example, it has
already reviewed a variety of studies undertaken
by the Province and provided to the Panel, which
deal with many matters of concern exclusively to
the Province; it has identified areas of concern as
expressed at public hearings many of which areas
are within provincial authority; it has developed
operational procedures which provide for review of
those areas of concern, for the appointment of
experts many of whose areas of special interest
concern matters that in this case fall within pro
vincial responsibility, for the identification of fur
ther information requirements sought to be ful
filled by the Panel without regard to the fact that
many of these concern matters within provincial,
not federal, legislative competence. The proposed
review and public hearings concerning safety
aspects of the dam project, it is urged, would deal
with matters clearly within provincial authority,
and similar review and hearings on broadly based
socio-economic aspects of the project would inevi
tably deal with provincial matters.
The additional information requirements identi
fied by the Panel and its expectation that many of
these would have to be met by the Province as
proponent of the project are said to indicate that
the Province is expected to be involved in further
studies and support for the work of the Panel, at
significant costs to the Province.
Finally, it is submitted that the authority of the
Panel, limited to a review and to making recom
mendations to Ministers, who may then exercise
decision-making powers, is no answer to the chal
lenge to the constitutional validity of the Panel's
terms of reference. It is said that an investigation
by a level of government must relate to a matter
within the constitutional authority of that govern
ment, an investigation cannot be undertaken sepa
rately from the remedial action which may
follow. '3 Thus the authority of the Minister does
not extend to issuing terms of reference authoriz
ing a panel to investigate matters beyond federal
competence. Moreover, a review under the Guide
lines Order has serious implications for the Prov
ince; as proponent of the project section 34 of the
Order imposes upon it onerous responsibilities,
including the provision of information as requested
by the Panel, in copies and languages the Panel
decides may be needed for public discussion, and
the provision of staff for explanatory purposes at
public hearings. Where the matters of interest to
the Panel are considered to fall within provincial
legislative competence, the Province objects to the
assumption that it should do as directed by the
Panel. A concern also alluded to is that failure to
meet the expectations of the Panel may result in
recommendations to Ministers that could lead to
possible imposition of difficult conditions for the
Province even under valid federal regulatory
powers.
As earlier noted, the concerns of the Province
underlying its application for judicial review were
not subjected at this hearing to counter argument,
and ultimately were not considered because this
Court determined on the application of the Minis
ter that the Province's application be adjourned
sine die.
The Application for a Stay or Adjournment
The Minister urges that proceedings in relation
to the Province's application be stayed, pursuant to
subsection 50(1) of the Federal Court Act, or
alternatively that they be adjourned, pursuant to
' 3 Canadian National Railway Co. v. Courtois, [1988] 1
S.C.R. 868, at pp. 892-894.
Court Rule 323, pending decision by the Supreme
Court of Canada on the appeal heard in February.
Subsection 50(1) of the Act provides:
50. (1) The Court may, in its discretion, stay proceedings in
any cause or matter,
(a) on the ground that the claim is being proceeded with in
another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
Rule 323 of the Federal Court Rules is:
Rule 323. The hearing of any motion may from time to time be
adjourned upon such terms, if any, as seem just.
It is submitted that paragraph 50(1) (a) of the
Federal Court Act is applicable in this situation
because the constitutional validity of the Panel's
terms of reference has already been put to the
Supreme Court in argument by the Province and
this issue was also presented in argument by at
least two of the other provinces who intervened
through their Attorneys General in the Supreme
Court hearing. Even though that Court declined to
amend the constitutional question stated for the
appeal to address explicitly the terms of reference
of the Panel, those terms were admitted as evi
dence before that Court, their validity was argued
and it is conceded that they are "at the heart of
application of the Guidelines Order to the project
and in the circumstances of the case" before that
Court. Moreover, the challenge to the validity of
the Guidelines Order itself inevitably challenges
the terms of reference here assigned to the Panel.
In sum, it is submitted that the very issue raised by
the application of the Province is already before
the Supreme Court of Canada and in these cir
cumstances paragraph 50(1)(a) is apt and this
Court in its discretion should grant a stay of
proceedings in relation to the Province's applica
tion.
Counsel for the Province concedes that in argu
ment before the Supreme Court the issue of the
validity of the terms of reference was raised, in
part, but only in part, as an illustration of per-
ceived unconstitutional application of the Guide
lines Order. Counsel frankly concedes that it is
hoped the Supreme Court's decision may deal
directly with the validity of the terms of reference,
but he points out that this issue was expressly
rejected for consideration by the Court prior to the
hearing.
In my view, whatever the parties may have
argued, in written submissions or orally, before the
Supreme Court, that Court declined to add the
question of the validity of the terms of reference to
the matters for consideration on appeal. Thus,
whatever that Court may decide, directly or in
directly bearing upon this question, I conclude that
the application here, which presupposes validity of
the Guidelines Order but is based on argument
that the terms of reference are an unconstitutional
application of that Order, is not "a claim ... being
proceeded with in another court" within the terms
of paragraph 50(1)(a) of the Federal Court Act.
For the Minister, it is also urged that the grant
ing of a stay in these proceedings would be in the
interest of justice within paragraph 50(1)(b) of the
Act. It is urged, on the basis of the decision by the
Supreme Court of Canada in Manitoba (Attorney
General) v. Metropolitan Stores Ltd. 14 that here
there is a serious question — the impact of the
Supreme Court of Canada decision on the issue
raised in this application. While that is a serious
question indeed, I do not believe this aptly applies
the Metropolitan Stores test for a stay of proceed
ings. In this case the serious issue is surely the
question raised by the Province concerning the
validity of the Panel's terms of reference. I agree
that question is a serious issue and the question
before this Court is whether a stay or adjournment
should be granted, the effect of which would be to
postpone resolution of the issue.
It is submitted that the Minister, and the Panel,
would suffer irreparable harm if the application by
the Province be granted, for if the work of the
14 [1987] 1 S.C.R. 110.
Panel is suspended the opportunity to recommend
meaningful mitigation measures may be lost. That
of course assumes that the Panel will determine
there are potentially adverse environmental effects
of the project, within its mandate, upon which
mitigation measures should be recommended, an
assumption which at this stage anticipates a par
ticular outcome for which there is no evidence
before me. Moreover, the submission also assumes
that measures to mitigate adverse environmental
effects, if any, can only be applied before the
project to be reviewed has been constructed, an
assumption for which there is no evidentiary base
and which I do not share.
The Province asserts that its interests may suffer
irreparable harm if the Panel's review continues,
without resolution of its questioned constitutional
basis, by its being required, as the proponent of the
project, to participate at what may be substantial
expense, a cost which the Minister disputes in the
absence of evidence.
In my view, either of the parties here is likely to
suffer some harm whatever the outcome, the Min
ister and the Panel if the Province's application
proceeds and the remedies sought were granted, or
the Province, if the Minister's motion for a stay or
adjournment be granted. But I am not persuaded
that in either case the harm that is feared would
be irreparable. I am, however, persuaded that the
public interest is here served best, pending the
decision of the Supreme Court of Canada, by
assuming the validity of the terms of reference of
the Panel.
Counsel for the Province urged that the Met
ropolitan Stores test was not applicable in this
case. In oral reasons for my order at the time of
the hearing I indicated I would further consider
that submission. Having done so I am persuaded
that that test is more apt in circumstances where
the court is asked to stay or enjoin the proceedings
of another body, for example, of the Panel as was
sought by the Province in applying for interlocuto
ry relief including an injunction restraining the
work of the Panel, an application dismissed by Mr.
Justice Rouleau. The same test, of Metropolitan
Stores, is not so apt in considering a motion to stay
or adjourn proceedings which has the effect of
postponing access to the relief ordinarily available
in this Court. In these latter circumstances the
more appropriate test is that applied by the
Associate Chief Justice in Association of Parents
Support Groups In Ontario (Using Toughlove)
Inc. v. York et al., 15 that the applicant for a stay
establish that the interest of justice clearly sup
ports a stay and outweighs the respondent's right
to proceed with its cause of action. The Court is
reluctant to interfere with any litigant's right of
access. 16
It is urged on behalf of the Minister that the
interest of justice is here served° by granting the
stay sought or adjourning proceedings in relation
to the Province's motion, pending decision of the
Supreme Court of Canada, and that the Province
is not substantially prejudiced by a stay which will
be temporary. At this stage that process protects
the public interest in maintaining the law until
determination by the Supreme Court of the consti
tutional scope of the Guidelines Order. That deter
mination will inevitably permit or prohibit the
Panel's work in whole or in part. It seems likely
that Court will deal with the constitutional issues
before it, though as the Province notes there can
be no assurance that those issues will be dealt
with, particularly in view of other issues in appeal
before that Court and the expressed position of the
Supreme Court that it would prefer to avoid con
stitutional issues which have not been dealt with
by courts below, at trial and at appeal. " More
over, the Province urges that a decision by this
Court in relation to its application may be looked
on with favour by the Supreme Court, and, more
15 (1987), 14 C.P.R. (3d) 263 (F.C.T.D.).
16 Idem, at p. 264.
" See, e.g., R. v. Amway Corp., [ 1989] 1 S.C.R. 21, per
Sopinka J., at p. 42; Vickery v. Nova Scotia Supreme Court
(Prothonotary), not yet reported, No. 21598, (S.C.C.) 28
March 1991, per Stevenson J. (at pp. 5-6).
important, that the Province has a right to seek
relief and having been denied interlocutory relief
this Court should now proceed to consider the
application for final relief. Otherwise, the Province
is effectively precluded from seeking relief, of the
nature here sought, in the only court where that
can be pursued.
On behalf of FORS, and in support of the
Minister's application, it is urged that this pro
ceeding is but one more step by the Province to
preclude public review of the project and that this
proceeding relates to essentially the same question
as was involved in litigation now in its final stages
awaiting determination by the Supreme Court of
Canada, that is, whether the Oldman River dam
project is subject to public review. Further, it is
urged that the balance of convenience here favours
the grant of an order staying proceedings on the
Province's applications.
Finally, both for the Minister and FORS it is
submitted that various factors, outlined by Associ
ate Chief Justice Jerome in the transcript of his
reasons orally delivered from the bench granting
an adjournment of two other recent applications
concerning the Daishowa project in Northern
Alberta," all support the adjournment of proceed
ings here, in the interests of justice. There the
learned justice was dealing with applications, like
that originally initiated by FORS in relation to the
Oldman River dam project, to require Ministers to
comply with the Guidelines Order.
"'Edmonton Friends of the North Environmental Society v.
Canada (Minister of Western Economic Diversification) (Court
File No. T-440-90), and Little Red River Band of Indians v.
Canada (Minister of Fisheries and Oceans), (Court File No.
T-441-90) unreported, transcript of proceedings, Nov. 30,
1990.
While it is unusual to stay or adjourn a matter
in circumstances which effectively postpone access
to relief which a party otherwise has a right to
pursue, I am persuaded that this is a case that
warrants that unusual step. The application by the
Minister to adjourn further consideration of the
Province's application pending the decision
anticipated from the Supreme Court of Canada,
should here be granted, for the following reasons.
1) In so far as the Metropolitan Stores test may
provide standards in this matter, I agree that
there is a serious issue to be tried, that issue
being the one raised by the Province concerning
constitutional validity of the terms of reference
of the Panel, but postponing consideration of
that issue at this stage is in the public interest.
In my view, on the balance of convenience,
there is a likelihood of greater inconvenience to
the respondents in proceeding to consider the
Province's motion while closely related issues
are under consideration in the Supreme Court
of Canada than there is to the Province from
adjourning that consideration. Proceedings at
this stage which question the Panel's process,
and any order from this Court which might
suspend or interrupt the review process of the
Panel would be more disruptive and create
greater harm to the process of public environ
mental review than continuing that process
pending the decision of the Supreme Court. I
take judicial notice that continuing with the
review will involve the Province in further work
and the costs will be at the public expense of
the Province the longer the review continues.
Yet the decision of the Supreme Court is likely
to be released within a few months. We can all
hope that the decision will be rendered, as the
hearing was conducted, on an expedited basis,
probably well before November 1991 when the
majority of matters under consideration by the
Panel may be ripe for public discussion and
final consideration by the Panel.
2) For the general considerations outlined by the
Associate Chief Justice in the transcript of
proceedings concerning the applications refer
ring to the Daishowa project, 19 it seems to me
just and appropriate to adjourn consideration
of the Province's application pending the deci
sion of the Supreme Court. Those consider
ations are more particularly applicable in this
case than in the Daishowa applications for the
matters now under consideration in the
Supreme Court, although different from the
issue here raised, are closely related to that
issue and they arise from earlier proceedings
concerning the project of interest in this
matter, the Oldman River dam project. These
considerations include the factors outlined
below which tip the balance in favour of the
general interests of justice when weighed
against the Province's right to proceed.
3) In my view the interests of justice, and the
efficacy of the judicial system, are best served
by adjourning consideration of the Province's
application because:
a) the constitutional validity of the Guidelines
Order upon which the processes of the
Panel depend, may be expected to be com
mented upon in the near future by the
Supreme Court. Virtually any decision on
the merits of the application for final relief
now before this Court is likely to be affect
ed by the Supreme Court decision, which
can be expected to influence the determina
tion here sought by the Province.
b) Even if the Supreme Court's decision does
not deal directly with the issue raised here,
I have no doubt that issue may be more
readily resolved, and perhaps more defini
tively argued, in light of the decision of the
Supreme Court, now awaited. In these cir
cumstances any motions judge would be
reluctant to render a decision on the Prov
ince's application in advance of the
Supreme Court's ruling, for such a decision
might be significantly affected by the ruling
and this would create additional problems
for the parties. If decision of a motions
judge were reserved until after it is clear
19 See note 18.
what effect the Supreme Court's decision
may have, then the Province would be in
the same position as if an adjournment were
granted, no better but clearly no worse. As
Associate Chief Justice Jerome indicated in
the case of applications relating to the Dai-
showa project, it would be unreasonable to
expect a motions judge to render decision
on an issue closely related to questions
already under consideration in the Supreme
Court.
c) Counsel for the Province frankly acknowl
edged that, even though the Supreme Court
of Canada declined to add a specific consti
tutional question concerning the terms of
reference of the Panel, argument before the
Court in February urged that the terms of
reference were unconstitutional, that they
encompass matters falling within provincial
legislative jurisdiction. He expressed the
hope that the constitutional validity of the
terms of reference of the Panel would be
dealt with by the Supreme Court, the very
issue raised in this application. In my view,
to proceed to consider the application at this
stage in these circumstances would be an
inappropriate process with closely related
questions before courts at different levels in
the judicial system. Moreover, it would be
presumptuous of this motions judge at this
stage to consider and determine an issue
which the applicant has urged, and hopes,
to have resolved by the Supreme Court.
Thus, I conclude that the application by the
Minister should be allowed and the proceedings to
consider the application by the Province should be
adjourned.
Counsel were invited to consider whether terms
might be included in any order of adjournment.
After their consideration, I was advised that no
terms were agreed on. Counsel for the Province
suggested consideration of an order, in addition to
adjournment, that would preclude the Panel from
conducting its proposed public hearings or discus
sions in two stages, in June and November, thus
effectively limiting public discussions to the time
foreseen for conclusion of its studies in November
1991. The involvement in proposed hearings that
might well deal with matters within provincial
legislative competence presented the greatest dif
ficulties for the Province, and the likelihood of a
decision by the Supreme Court before November
was greater than before June of 1991. I declined to
add such terms, which were opposed by the Minis
ter and by FORS. Thus, the matter is adjourned
sine die, without prejudice to the right of the
Province, or any other party, to return on the usual
two days notice if circumstances should change.
The matter of costs was raised by counsel for
FORS which was described as a public interest
group but privately supported. The Society per
ceived its active role in this case, in promoting
review- through litigation, as an important one but
one which had proven to be expensive. Counsel
suggested that at an earlier stage it had been
proposed to the other parties that the two applica
tions before the Court be determined separately
with the motion for adjournment considered first,
in which event FORS would not have appeared at
the hearing of that matter. This was not agreed on.
In the circumstances counsel proposed that costs
be awarded to FORS on a solicitor and client
basis. After consideration of this submission, and
of the opposition expressed by the Province to an
order for costs at this stage, I conclude, and the
orders herein so provide, that costs at this stage
will be costs in the cause.
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