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A-677-78
Mario Carota (Appellant) (Plaintiff) v.
Donald Jamieson, Marcel Lessard and Attorney General of Canada (Respondents) (Defendants)
Court of Appeal, Urie and Le Dain JJ. and Kerr D.J.—Halifax, June 22; Ottawa, September 25, 1979.
Crown — Prerogative writs — Agreement between Canadian and P.E.I. Governments for comprehensive rural development plan — No provision for public participation in amendment — Appeal from dismissal of action concerning alleged breach by federal Minister of Regional Economic Expansion of statutory duty to make provision for public participation — Fund for Rural Economic Development Act, S.C. 1966-67, c. 41, ss. 4(1), 5(a),(b) — Government Organization Act, 1969, S.C. 1968-69, c. 28, s. 102(2),(4) — Department of Regional Eco nomic Expansion Act, R.S.C. 1970, c. R-4, ss. 5, 6, 7, 8 — Appropriation Act No. 5, 1973, S.C. 1973-74, c. 47, Vote 11a — Interpretation Act, R.S.C. 1970, c. I-23, s. 35.
This is an appeal from a judgment of the Trial Division dismissing an action for a declaration and other relief with respect to an alleged breach by the federal Minister of Regional Economic Expansion of a statutory duty to make provision for public participation in the formulation and carrying out of the second phase of a comprehensive rural development program for Prince Edward Island. The program or "Plan" was estab lished by an agreement between Canada and Prince Edward Island. Amendment No. 3 to the Agreement, made in 1975, did not contain a specific reference to a program for public partici pation and involvement, nor a specific cost allocation for such purpose, unlike the original Plan and summary of costs attached to the "First Memorandum of Implementation". Appellant alleged that the Minister of Regional Economic Expansion caused Amendment No. 3 to be formulated and entered into without making provision for the public participa tion in the formulation and carrying out of the Plan as required by section 7(2) of the Department of Regional Economic Expansion Act. The defence admitted that the Minister did not comply with that section, contending that it had no application to the amending agreement. A question of pure law was at issue at trial—whether or not the Minister had a statutory duty to make provision for public participation in the amending agreement.
Held, the appeal is dismissed. The Minister was not under a statutory duty to make provision for public participation in the amending agreement. The terms of section 5(a) of the Fund for Rural Economic Development Act, which included provision for participation of residents in its definition of "comprehensive rural development program", even if they created a statutory duty, no longer applied to the amending agreement when
entered into in 1975. It authorized the kind of agreement that could be entered into, but was not a restraint on the agree ment's amendment years after it ceased to exist. Appellant argued that statutory authority indicated that the duty to make provision for public participation had been transferred to the Minister of Regional Economic Expansion, and although powers, duties and functions were transferred, the question remains as to what they were. Despite the fact that the agreement would continue to have effect by virtue of the Interpretation Act, the words "continues in force as though that agreement had been entered into pursuant to this Act" in section 102(4) of the Government Organization Act, 1969 do not intend more. It cannot be inferred from these words in a provision that makes reference to three statutes an intention that the provisions of Part IV of the 1969 Act, which became the Department of Regional Economic Expansion Act, should apply mutatis mutandis to the Agreement. If such an impor tant consequence were intended, it would have been expressly provided. The Department of Regional Economic Expansion Act does not have application to the 1975 agreement; that agreement derived the whole of its authority from the Appro priation Act No. 5, 1973.
APPEAL. COUNSEL:
M. Carota for appellant (plaintiff) on his own behalf.
J. A. Ghiz for respondents (defendants) Donald Jamieson and Marcel Lessard. R. P. Hynes for respondent (defendant) Attorney General of Canada.
SOLICITORS:
Scales, Ghiz, Jenkins & McQuaid, Charlotte- town, for respondents (defendants) Donald Jamieson and Marcel Lessard.
Deputy Attorney General of Canada for respondent (defendant) Attorney General of Canada.
The following are the reasons for judgment rendered in English by
LE DAIN J.: This is an appeal from a judgment of the Trial Division [[1979] 1 F.C. 735] dismiss ing an action for a declaration and other relief with respect to an alleged breach by the federal Minister of Regional Economic Expansion of a statutory duty to make provision for public partici pation in the formulation and carrying out of the second phase of a comprehensive rural develop ment program in Prince Edward Island.
The program or "Plan", as it is generally referred to, was established by an agreement (hereinafter referred to as "the Agreement") be tween Canada and Prince Edward Island, which was authorized, in so far as Canada was con cerned, by Order in Council P.C. 1969-454 made on March 6, 1969, and was entered into on March 7, 1969, pursuant to section 4(1) of the Fund for Rural Economic Development Act, S.C. 1966-67, c. 41, which provided as follows:
4. (1) The Minister may, on the recommendation of the Advisory Board and with the approval of the Governor in Council, enter into an agreement with any province providing for
(a) the undertaking jointly with the province or any agency thereof of a comprehensive rural development program in a special rural development area; or
(b) the payment to the province of contributions in respect of the cost of a comprehensive rural development program in a special rural development area undertaken by the govern ment of the province or any agency thereof.
Section 5 of the Act defined a "comprehensive rural development program" and a "special rural development area" as follows:
5. For the purposes of this Act,
(a) a comprehensive rural development program is a pro gram, consisting of several development projects, that is designed to promote the social and economic development of a special rural development area and to increase income and employment opportunities and raise living standards in the area, and that makes provision for participation by residents of the area in the carrying out of the program; and
(b) a special rural development area is a predominantly rural area within a province that is designated in an agree ment between the province and the Minister under section 4 to be an area of widespread low incomes resulting from economic and social adjustment problems and that, in the opinion of the Board based on information submitted by the province with respect to physical, economic and social condi tions in the area, has a reasonable potential for economic and social development.
Schedule "A" of the Agreement in its original form consisted of a "First Memorandum of Implementation" and the detailed Plan. In Article 1 of the Memorandum of Implementation the Province of Prince Edward Island was designated a special rural development area pursuant to sec tion 5(b) of the Fund for Rural Economic De velopment Act as follows:
1. The territory of the Province is hereby designated a Special Rural Development Area under Section 5(b) of the Act and the
development strategy outlined in Schedule "A" to the Agree ment shall be the Comprehensive Rural Development Program for the Area under Section 4 of the Act.
The Agreement was to run for some fifteen years until March 31, 1984 and to be implemented in three phases of five years each. Article 7 of the Agreement contemplates amendments from time to time as follows:
7. In the event that Canada and the Province mutually agree that further studies or information with respect to the Area or that an evaluation of the effects of the Plan demonstrate that the objectives and basic strategy described in Schedule "A" require alteration or amendment, this Agreement may from time to time be reviewed by the parties hereto and, if believed necessary, with the approval of the Governor-in-Council and the Lieutenant-Governor-in-Council, may be amended; but in any event the Agreement shall be reviewed before March 31, 1972.
In its original form the Plan made provision for public participation in its development and imple mentation. A "Summary of Costs and Services for the First Phase of the Prince Edward Island Com prehensive Development Plan" included an amount of $10,082,000 for program 4.3, entitled "Public Participation & Involvement", $7,560,000 of which was to be provided by the Federal Gov ernment and $2,522,000 by the Province.
The Fund for Rural Economic Development Act was repealed by the Government Organization Act, 1969, S.C. 1968-69, c. 28, which came into force on April 1, 1969. Part IV thereof created a Department of Regional Economic Expansion under a Minister of Regional Economic Expansion with duties, powers and functions in relation to plans for "economic expansion and social adjust ment" in "special areas", and subsections (2) and (4) of section 102 made particular provision for the continuing effect and administration of the Agreement as follows:
1o2....
(2) Whenever under any order, rule or regulation, or any contract, lease, licence or other document, any power, duty or function is vested in or exercisable by the Minister of Forestry and Rural Development, the Deputy Minister of Forestry and Rural Development or any other officer of the Department of Forestry and Rural Development in relation to the Fund for Rural Economic Development Act or in relation to any matter not provided for under subsection (1) to which the powers, duties or functions of the Minister of Regional Economic Expansion extend under this Act, the power, duty or function is vested in and shall or may be exercised by the Minister of
Regional Economic Expansion, the Deputy Minister of Region al Economic Expansion or the appropriate officer of the Department of Regional Economic Expansion, as the case may be, unless the Governor in Council by order designates another Minister, Deputy Minister or officer of a department of the public service of Canada to exercise such power, duty or function.
(4) Subject to subsections (2) and (3), every agreement entered into before the coming into force of this Act pursuant to the Atlantic Development Board Act, the Fund for Rural Economic Development Act or Part II of the Department of Industry Act continues in force as though that agreement had been entered into pursuant to this Act.
Part IV of the Act of 1969 became the Depart ment of Regional Economic Expansion Act, R.S.C. 1970, c. R-4, which came into force on July 15, 1971. Sections 23, 24, 25 and 26 of the former Act, which were referred to in argument, became sections 5, 6, 7 and 8 respectively of the latter Act. It is convenient to quote them as they appear in chapter R-4 of the Revised Statutes, 1970, since they were the provisions in force when the amend ing agreement of which the appellant complains was entered into. They read as follows:
5. The duties, powers and functions of the Minister extend to and include
(a) all matters over which the Parliament of Canada has jurisdiction, not by law assigned to any other department, branch or agency of the Government of Canada, relating to economic expansion and social adjustment in areas requiring special measures to improve opportunities for productive employment and access to those opportunities; and
(b) such other matters over which the Parliament of Canada has jurisdiction relating to economic expansion and social adjustment as are by law assigned to the Minister.
6. The Governor in Council, after consultation with the government of any province, may by order designate as a special area, for the period set out in the order, any area in that province that is determined to require, by reason of the excep tional inadequacy of opportunities for productive employment of the people of that area or of the region of which that area is a part, special measures to facilitate economic expansion and social adjustment.
7. (1) In exercising his powers and carrying out his duties and functions under section 5, the Minister shall
(a) in cooperation with other departments, branches and agencies of the Government of Canada, formulate plans for the economic expansion and social adjustment of special areas; and
(b) with the approval of the Governor in Council, provide for coordination in the implementation of those plans by depart-
ments, branches and agencies of the Government of Canada and carry out such parts of those plans as cannot suitably be undertaken by such other departments, branches and agencies.
(2) In formulating and carrying out plans under subsection (1), the Minister shall make provision for appropriate coopera tion with the provinces in which special areas are located and for the participation of persons, voluntary groups, agencies and bodies in those special areas.
8. (1) The Minister may, in cooperation with any province, formulate a plan of economic expansion and social adjustment in a special area and, with the approval of the Governor in Council and subject to the regulations, enter into an agreement with that province for the joint carrying out of such plan.
(2) Notwithstanding subsection (1), detailed negotiation of any draft agreement under this section shall not be undertaken by or on behalf of the Minister unless the plan to which the draft agreement relates has first been approved by the Gover nor in Council.
(3) An agreement entered into pursuant to this section may be entered into with one or more provinces in respect of one or more special areas and
(a) shall provide for the use, where appropriate, of the services and facilities of other departments, branches and agencies of the Government of Canada;
(b) may provide for the payment to a province of contribu tions in respect of the costs of the programs and projects to which the agreement relates that are to be undertaken by the government of the province or any agency thereof or any of those programs or projects; and
(c) may provide that Canada and a province may procure the incorporation of one or more agencies or other bodies, to be jointly controlled by Canada and the province, for the purpose of undertaking or implementing programs or projects to which the agreement relates or any part of such programs or projects.
After the repeal of the Fund for Rural Econom ic Development Act there were two principal amendments to the Agreement prior to the amend ment which is the one in issue in the present case. Amendment No. 1 was made in 1971. Order in Council P.C. 1971-1105 of June 8, 1971, which authorized the Minister of Regional Economic Expansion to enter into the amending agreement, recited that it was made "pursuant to sections 23 and 102 of the Government Organization Act, 1969 and Article 7 of the Prince Edward Island Comprehensive Rural Development Agreement". The amending agreement made changes in the financial arrangements for certain programs. The
summary of costs contained an amount of $5,082,- 000 for program 4.3, entitled "Public Participation & Involvement", made up of $3,810,000 from the Federal Government and $1,272,000 from the Province. Amendment No. 2 to the Agreement was made in 1973. Order in Council P.C. 1973- 16/1179 of May 22, 1973, which authorized the Minister of Regional Economic Expansion to enter into it, recited that it was made "pursuant to section 5 of the Department of Regional Economic Expansion Act, section 102 of the Government Organization Act, 1969 and Article 7 of the Prince Edward Island Comprehensive Development Agreement". Amendment No. 2 substituted a new summary of costs for the first phase of the Plan. For Item 4.3, entitled "Public Participation & Involvement", it showed a total amount of $3,957,- 000, made up of $2,968,000 from the Federal Government and $989,000 from the Province. Amendment No. 3, which is the one in issue in the present case, was made in 1975. Order in Council P.C. 1975-3/2195 of September 18, 1975, which authorized the Minister of Regional Economic Expansion to enter into it, recited that it was made "pursuant to Vote 11a, Appropriation Act No. 5, 1973". Regional Economic Expansion Vote 1 la, which was for the amount of $1.00, was in the following terms:
11a To authorize the Minister of Regional Economic Expan sion to enter into general development agreements with the provinces, subject to the approval of the Governor in Council, to provide mèasures for economic expansion and social adjustment in areas in Canada requiring such measures to improve opportunities for productive employment in those areas and access to such opportunities, and, in accordance with such general development agreements and such direc tions as the Governor in Council may prescribe, to enter into subsidiary agreements to effect the purposes of the general development agreements, and to provide contributions as set out in the general development agreements and subsidiary agreements, and to authorize the transfer of $14,999,999 from Regional Economic Expansion Vote 10, Appropriation Act No. 4, 1973, for the purposes of this Vote ....
Amendment No. 3, entered into on October 23, 1975, provided a "Second Memorandum of Implementation" and a new "Development Strate gy" for the second phase of the Plan to run from April 1, 1975. Neither contains a specific refer-
ence to a program for public participation and involvement, nor a specific cost allocation for such purpose, as did the original Plan and summary of costs attached to the "First Memorandum of Implementation."
The appellant alleges in his statement of claim that the Minister of Regional Economic Expansion caused Amendment No. 3—the agreement for the second phase of the Comprehensive Development Plan—to be formulated and entered into without making provision for the participation of the appellant or any other persons, volunteer group, agency or body in the formulation and carrying out of the Plan as required by section 7(2) of the Department of Regional Economic Expansion Act. He sues the respondents as the former and present incumbent of the office of Minister of Regional Economic Expansion, the Attorney Gen eral of Canada being later joined as a defendant, and he prays for a declaration that the amending agreement of October 23, 1975, is void because of the alleged failure to comply with section 7, for an injunction to restrain the implementation of the Agreement, for a mandamus against the defend ant Lessard to compel provision for public partici pation in the second phase of the Plan, and puni tive damages. The defence filed on behalf of the respondents by the Deputy Attorney General admits that the Minister did not comply with section 7 of the Department of Regional Economic Expansion Act but contends that the section has no application to the amending agreement. The learned Trial Judge took this as an admission that the amending agreement did not make provision for public participation in the formulation and implementation of the second phase of the Plan, but he also found this as a fact from the terms of the Agreement itself. He said [at page 738], "The absence in the impugned agreement of any special provisions for the participation of groups and individuals was sufficiently established by the mere production of the instrument itself, and in any event, the defendants had promptly admitted it as a fact." The issue was therefore treated as a pure question of law—whether the Minister had a statutory duty to make such provision in the amending agreement. At the hearing of the appeal counsel for the respondents stressed that all that had been admitted is that the Minister had not complied with section 7(2) of the Department of
Regional Economic Expansion Act. In view of the conclusion to which I have come on the question of law it is unnecessary to consider whether the appellant has sufficiently established that there was in fact a failure in the amending agreement to make provision for public participation. I agree with the conclusion of the learned Trial Judge that the Minister was not under a statutory duty to make such provision. This is sufficient to dispose of the appellant's action, and it is unnecessary to deal with the other issues raised by it, which include the questions whether, if such a duty did exist, the breach of it would give rise to a private right of action, whether the appellant has suffi cient standing for such an action, and whether the particular relief sought would lie in the circum stances.
I may briefly state my reasons for agreement with the Trial Judge. The foundation of the appel lant's case is his contention that the Minister was bound by the terms of section 7(2) of the Depart ment of Regional Economic Expansion Act when he entered into the amending agreement providing for the second phase of the Plan. In the argument on the appeal he referred as well to the terms of section 5(a) of the Fund for Rural Economic Development Act, which defined a "comprehensive rural development program" as including, among other things, "provision for participation by resi dents of the area in the carrying out of the pro gram", but even if those terms could be said to create a statutory duty, which I strongly doubt, they no longer applied to the Agreement when the amending agreement was entered into in 1975. If section 5(a) defined the kind of agreement that the Minister of Forestry and Rural Development was authorized to enter into, it was no longer a restraint upon the amendment of that agreement some five or six years after it had ceased to exist. The appellant laid particular stress upon the terms of section 23 of the Government Organization Act, 1969, which became section 5 of the Department of Regional Economic Expansion Act, as well as section 102(2) of the former Act, as indicating, in his contention, the transfer from the Minister of Forestry and Rural Development to the Minister
of Regional Economic Expansion of the duty to make provision for public participation. Certainly, there was a transfer of such duties, powers and functions as continued to exist in respect of the Agreement, but the question, of course, is what they were. It is the terms of section 102(4) of the Government Organization Act, 1969, a provision that was not repealed in the consolidation effected by the Revised Statutes of Canada, 1970, that have appeared to me the most significant in this regard. I have considered whether, in view of the fact that the Agreement would continue to have effect by virtue of section 35 of the Interpretation Act, R.S.C. 1970, c. I-23, more was not intended by the words "continues in force as though that agreement had been entered into pursuant to this Act." I am of the view, however, that one cannot infer from these words in a provision that makes reference to three statutes an intention that the provisions of Part IV of the Act of 1969, which became the Department of Regional Economic Expansion Act, should apply mutatis mutandis to the Agreement. If such an important consequence were intended it would surely have been expressly provided. I am, therefore, in agreement with what I understand to have been the conclusion of the learned Trial Judge that the Department of Regional Economic Expansion Act did not have application to the amending agreement of 1975 and that the latter derived the whole of its statu tory authority from the Appropriation Act No. 5, 1973. But even assuming that the terms of the Department of Regional Economic Expansion Act must be held to apply to the amending agreement by virtue of the terms of section 102(4) of the Act of 1969, and that the special rural development area designated by Article 1 of the "First Memo randum of Implementation" must be held to be a "special area" within the meaning of section 6 of the Department of Regional Economic Expansion Act, I am further in agreement with the conclusion that the amending agreement would not fall within the terms of section 7, which contemplates plans formulated by the Minister alone in cooperation with other departments, branches and agencies of the Government of Canada, and not an agreement between Canada and a province which is expressly provided for by section 8, in which there is no requirement of provision for public participation corresponding to that in section 7(2).
I am accordingly of the opinion that there is no error in the judgment appealed from and that the appeal should be dismissed.
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URIE J.: I agree.
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KERR D.J.: I agree.
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