T-2807-83
Energy Probe (Applicant)
v.
Atomic Energy Control Board and Ontario Hydro
(Respondents)
and
Attorney General of Canada (Intervenant)
Trial Division, Reed J.—Toronto, February 15,
16; Ottawa, April 9 1984.
Judicial review — Prerogative writs — Certiorari — Atomic
Energy Control Board licensing decision attacked for pecuni
ary bias of Board member — Latter president of company
doing business with license applicant — Duty to act fairly
applicable to Board administrative licensing function — Duty
including requirement for unbiased decision-maker —
Member not biased, having no direct pecuniary interest as
defined in case law — Fact Act permitting part-time appoint
ments to Board not condonation of pecuniary bias — Doctrine
of necessity not applicable — Applicant having standing —
Whether reasonable apprehension of bias not put in issue —
Certiorari denied — Atomic Energy Control Act, R.S.C. 1970,
c. A-19, s. 8.
Judicial review — Equitable remedies — Declarations —
Standing — Validity of licensing decision by Atomic Energy
Control Board — Allegation of pecuniary bias — Duty to act
fairly — Requirement for unbiased decision-maker — Wheth
er non-profit research and educational corporation having
standing to seek declaratory judgment — Right to standing
broader in claim for certiorari — Reference to text writers —
Thorson, McNeil and Borowski cases considered — Issue of
constitutional legislative jurisdiction not sine qua non of those
decisions — Decisions not opening floodgates to litigation —
Not extending rules of standing too broadly — Applicant
having standing but declaratory judgment denied for lack of
direct pecuniary bias.
Practice — Parties — Standing — Applicant seeking certio-
rari and declaratory judgment against Atomic Energy Control
Board administrative licensing decision — Attack based on
allegation of pecuniary bias of one of Board members — Grant
of standing in certiorari applications discretionary — Fact
applicant serious interest group and made representations to
Board concerning challenged decision justifying grant of
standing for certiorari — Applicant having standing for action
for declaratory judgment as (1) justiciable issue raised, (2)
applicant having genuine interest as citizen in validity of
decision raising issue of public interest, (3) no other reasonable
and effective manner to bring issue before courts — Atomic
Energy Control Act, R.S.C. 1970, c. A-19, s. 8.
Energy — Licensing decision of Atomic Energy Control
Board attacked on grounds Board member having pecuniary
bias as president of company supplying radiation-resistant
cables for nuclear reactors to license applicant — Applicant
Energy Probe having standing for both certiorari and declara-
tory judgment applications — Member of Board not biased,
having no direct pecuniary interest as defined in case law —
Fact Act permitting part-time appointments to Board not
condonation of pecuniary bias — Doctrine of necessity not
applicable — Atomic Energy Control Act, R.S.C. 1970, c.
A-19, s. 8.
The decision of the Atomic Energy Control Board to renew
the operating license for Ontario Hydro's Pickering "B"
Nuclear Generating Station is attacked by means of an applica
tion for certiorari and an action for a declaratory judgment.
These proceedings are based on an allegation of pecuniary bias
on the part of a Board member, Mr. Olsen, who was, at the
time of the decision, president of a company selling radiation-
resistant cables to Ontario Hydro. The issues are (1) whether
the doctrine of fairness applies to the licensing function of the
Board and whether it includes a requirement of absence of bias
on the part of Board members; (2) whether Mr. Olsen had a
pecuniary interest in the outcome of the decision sufficient to
constitute bias; (3) whether the applicant has standing to
challenge the Board's decision.
Held, both the application for certiorari and the action for a
declaratory judgment are dismissed.
The doctrine of fairness applies to the Board's administrative
decisions such as the one attacked herein and it includes a
requirement for an unbiased decision-maker. Since no contract
with Mr. Olsen's company depended directly on the licensing
decision and since Ontario Hydro purchased radiation-resistant
cables through a tendering process, Mr. Olsen did not have a
pecuniary interest sufficient to constitute bias.
The fact that the Atomic Energy Control Act provides for
the appointment of part-time members to the Board is not a
condonation of pecuniary bias. Nor does the doctrine of neces
sity apply to legitimize such bias.
The Court, exercising its recognized discretion in this matter,
grants the applicant standing to apply for certiorari because,
even though it is not an aggrieved person, it is a serious interest
group and it has made representations to the Board concerning
the decision being challenged.
The applicant also has standing with respect to the action for
a declaratory judgment because, applying the Supreme Court
decisions in the Thorson, McNeil and Borowski cases, which
are applicable not only to cases where standing is sought to
challenge the constitutional validity of legislation, (1) a justi-
ciable issue has been raised, (2) the applicant has a genuine
interest as a citizen in the validity of a decision which raises an
issue of public interest, (3) there is no other reasonable and
effective manner by which to bring the issue before the courts.
CASES JUDICIALLY CONSIDERED
APPLIED:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; S.E.A.P.
v. Atomic Energy Control Board et al., [1977] 2 F.C. 473
(C.A.); AGIP S.p.A. v. Atomic Energy Control Board, et
al., [1979] 1 F.C. 223; 87 D.L.R. (3d) 530 (C.A.); Croy,
et al. v. Atomic Energy Control Board, et al., [1981] 1
F.C. 515; 105 D.L.R. (3d) 625 (C.A.); Thorson v. Attor
ney General of Canada et al., [1975] 1 S.C.R. 138; Nova
Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265;
55 D.L.R. (3d) 632; Minister of Justice of Canada et al.
v. Borowski, [1981] 2 S.C.R. 575; 130 D.L.R. (3d) 588;
In the Matter of a Suit of Forster against Mary Owen
Forster and Berridge (1863), 4 B. & S. 187; 122 E.R.
430 (K.B. Div.); The Queen v. The Justices of Surrey
(1870), Law Rep. 5 Q.B. 466; The King v. Groom, et al.,
[1901] 2 K.B. 157; The King v. Richmond Confirming
Authority, [1921] 1 K.B. 248; The King v. Stafford
Justices, [1940] 2 K.B. 33; Re Corporation of District of
Surrey, Municipal By-Law, 1954, No. 1291 (1956), 6
D.L.R. (2d) 768 (B.C.S.C.); Rothmans of Pall Mall
Canada Ltd. et al. v. Minister of National Revenue, et
al., [1976] 2 F.C. 500 (C.A.); Martineau v. Matsqui
Institution Disciplinary Board, [1980] 1 S.C.R. 602; 106
D.L.R. (3d) 385; Canadian Broadcasting League v.
Canadian Radio-television and Telecommunications
Commission, et al., [1980] 1 F.C. 396; 101 D.L.R. (3d)
669 (C.A.).
DISTINGUISHED:
Regina v. Birmingham City Justice, [1970] 1 W.L.R.
1428 (Q.B.); Mclnnes v. Onslow-Fane et al., [1978] 1
W.L.R. 1520 (Ch.D.); Regina v. Secretary of State for
the Environment, [1982] Q.B. 593; In the Matter of
Hopkins (1858), El. Bl. & El. 100, 120 E.R. 445 (K.B.
Div.); Reg. v. Hammond et al. (1863), 9 L.T. Rep. N.S.
423 (Bail Ct.); The Queen v. Gaisford, [1892] 1 Q.B.
381; The King v. Hendon Rural District Council, [1933]
2 K.B. 696; Beer v. Rural Municipality of Fort Garry
(1958), 66 Man. R. 385 (C.A.); Regina v. Barnsley
Licensing Justices, [1960] 2 Q.B. 167; Ladies of the
Sacred Heart of Jesus (Convent of the Sacred Heart) v.
Armstrong's Point Association et al. (1961), 29 D.L.R.
(2d) 373 (Man. C.A.); Reg. v. Hain and others, Licens-
ing Justices (1896), 12 T.L.R. 323 (Q.B. Div.); Camino
Management Ltd. et al. v. Manitoba Securities Commn.
et al., [1979] 2 W.W.R. 594 (Man. Q.B.); Re Webb and
Ontario Housing Corporation (1978), 93 D.L.R. (3d)
187 (Ont. C.A.).
COUNSEL:
A. J. Roman and D. Poch for applicant.
No one on behalf of Atomic Energy Control
Board, respondent.
Ian Blue for Ontario Hydro, respondent.
P. Evraire, Q.C. and M. J. B. Wood for
Attorney General of Canada, intervenant.
SOLICITORS:
A. J. Roman, Toronto, for applicant.
Cassels, Brock, Toronto, for Ontario Hydro,
respondent.
Deputy Attorney General of Canada for
Attorney General of Canada, intervenant.
The following are the reasons for judgment
rendered in English by
REED J.: This judgment relates to two actions
brought on simultaneously, seeking alternative
forms of relief with respect to the same cause of
action. One is a motion for a writ of certiorari to
quash a decision of the Atomic Energy Control
Board which granted a licence to Ontario Hydro
to operate Units 5 and 6 of the Pickering "B"
Nuclear Generating Station. The other is an action
seeking a declaratory judgment that that licensing
decision is invalid.
Facts
On June 27, 1983, the Atomic Energy Control
Board (A.E.C.B.) issued a news release which
stated that "subject to its confirmation at its next
meeting" it would approve the issuing of a
renewed operating licence for Ontario Hydro's
Pickering "B" Nuclear Generating Station.
On September 2, 1983 the applicant, Energy
Probe, asked to appear before the A.E.C.B. to
make representations respecting the licensing deci
sion which was about to be made. On September
7, 1983, the A.E.C.B. asked the applicant, Energy
Probe, to elaborate on its points of concern so that
they might be adequately considered.
On September 12, 1983, the Applicant outlined
a number of technical concerns in writing to the
A.E.C.B. and also objected strongly to the partici
pation of a Mr. Olsen in the decision-making
process. Specifically, Energy Probe wrote:
We object to Mr. Olsen's participation due to his apparently
conflicting interests in nuclear power. Mr. Olsen is Chairman
of EEMAC, the electrical industry's lobby; he is a member of
the Canadian Nuclear Association (the nuclear industry lobby
group); he is Chairman of the Electrical Industry Task Force
which lobbies for greater electricity use in Ontario. Mr. Olsen
is also President of Phillips Cables.
The details of the known contracts between Ontario Hydro and
Phillips Cables are as follows (supplies for nuclear stations are
underlined):
May 1981 $740,000 cables for Pickering B
June 1981 $ 60,000* copper wire, General Stores
July 1981 $100,000 ("1st year") cables for Pickering
B
August 1981 $100,000 copper conductor for Central
Stores
August 1981 $350,000 aluminum cables for Central
Stores
September 1981 $150,000 cables for Atikokan (coal-fired)
GS
September 1981 $230,000 power cables for Bramalea Trans
former Station
January 1982 $140,000 copper cable for Central Stores
April, 1982 $140,000 copper cable for Central Stores
April 1982 $150,000 control cables for Pickering B
August 1982 $200,000 control cables for Darlington
NGS
March 1983 $270,000* power cables for Darlington
NGS
* Estimate: listed amount is $120,000 and Phillips is one of two
companies named.
We ask that previous decision of the Board be suspended and
that the Board be convened without Mr. Olsen so that it may
take a fresh look at the advisability of licensing Pickering 'B'.
On September 20, 1983, the A.E.C.B. con
firmed its decision to license Pickering Units 5 and
6.
On October 24, 1983, the A.E.C.B. responded to
Energy Probe's letter of September 12, 1983, stat-
ing that the Board felt that "there was no sub
stance to the charge" of conflict of interest on the
part of Mr. Olsen. The A.E.C.B.'s response also
answered the technical concerns raised by Energy
Probe.
Of the above facts, the only one disputed before
me was the exact scope of Mr. Olsen's interests.
Ontario Hydro in its statement of facts agreed
that:
He is president of Phillips Cables Ltd. ("Phillips Cables") a
reputable Canadian company doing some $200 million worth of
business annually. He is also currently Chairman of the Electri
cal and Electronic Manufacturers Association of Canada. Phil-
lips Cables has done business with Ontario Hydro through the
competitive tender process.
Reference was also made by Ontario Hydro to a
letter appearing as an exhibit to one of the affida
vits and I take this reference to be an agreement to
the fact as set out in that letter that Mr. Olsen was
chairman of a special task force on electrical
energy in Ontario.
Paragraph 13 of an affidavit dated November
23, 1983, signed by Norman Rubin, and filed in
support of Energy Probe's application reads as
follows:
Phillips Cables Limited has sold Ontario Hydro significant
quantities of radiation resistant cables for nuclear reactors,
including cable for the aforementioned Units 5 & 6 of Picker-
ing "B". Attached exhibit 'I' are two copies of Ontario Hydro's
announcement of recent major contract awards, including con
tracts awarded to Phillips Cables Limited totalling $3,280,000
of which $1,460,000 represents cables for nuclear stations, of
which $990,000 represents cable for Pickering "B".
Counsel for the Attorney General and counsel
for Ontario Hydro admitted these facts but only
on the concomitant admission from counsel for
Energy Probe that the purchases made by Ontario
Hydro were made pursuant to a tendering process,
and that although the tendering process might not
always result in the lowest bidder being chosen,
decisions were made on the basis of objective
criteria. It should be noted that paragraph 14 of
the same affidavit was objected to as hearsay,
which it clearly is, and no admission was then
made respecting its content.
The issues raised by this application are: (1)
does the doctrine of fairness as enunciated by the
Supreme Court in Nicholson v. Haldimand-Nor-
folk Regional Board of Commissioners of Police,
[1979] 1 S.C.R. 311 apply to the licensing func
tion of the Atomic Energy Control Board and
particularly, does that doctrine of fairness include
a requirement of a lack of bias on the part of the
Board members; (2) did Mr. Olsen have a pecuni
ary interest in the outcome of that decision suffi
cient to constitute pecuniary bias as that term has
been defined, and (3) in any event, does the appli
cant Energy Probe have standing to challenge the
Board's decision?
Fairness Doctrine
All parties agree that the licensing function of
the A.E.C.B. is an administrative one and not
quasi-judicial or judicial. This view is based on the
absence of any provisions in the Atomic Energy
Control Act [R.S.C. 1970, c. A-19] requiring the
Board to sit in public, or to hold hearings, or to
give notice of an application, or of any require
ment to follow or adopt procedures analogous to
those of a court. Refer S.E.A.P. v. Atomic Energy
Control Board et al., [1977] 2 F.C. 473 (C.A.) at
pages 475-476; AGIP S.p.A v. Atomic Energy
Control Board, et al., [1979] 1 F.C. 223, at pages
228-229; 87 D.L.R. (3d) 530 (C.A.) at pages
534-535; Croy, et al. v. Atomic Energy Control
Board, et al., [1981] 1 F.C. 515, at pages 517-518
and 522-523; 105 D.L.R. (3d) 625 (C.A.) at pages
627 and 630-631.
It seems clear therefore that the doctrine of
fairness as enunciated by the Supreme Court in
Nicholson v. Haldimand-Norfolk Regional Board
of Commissioners of Police, [1979] 1 S.C.R. 311,
applies to A.E.C.B. licensing decisions. Chief Jus
tice Laskin, at page 324 in that case, explained
that doctrine as follows:
I accept, therefore, for present purposes and as a common law
principle what Megarry J. accepted in Bates v. Lord Hailsham,
at p. 1378, "that in the sphere of the so-called quasi-judicial the
rules of natural justice run, and that in the administrative or
executive field there is a general duty of fairness".
The emergence of a notion of fairness involving something
less than the procedural protection of traditional natural justice
has been commented on in de Smith, Judicial Review of
Administrative Action, supra, at p. 208, as follows:
That the donee of a power must "act fairly" is a long-set
tled principle governing the exercise of discretion, though its
meaning is inevitably imprecise. Since 1967 the concept of a
duty to act fairly has often been used by judges to denote an
implied procedural objection. In general it means a duty to
observe the rudiments of natural justice for a limited purpose
in the exercise of functions that are not analytically judicial
but administrative ...
What rightly lies behind this emergence is the realization
that the classification of statutory functions as judicial, quasi-
judicial or administrative is often very difficult, to say the least;
and to endow some with procedural protection while denying
others any at all would work injustice when the results of
statutory decisions raise the same serious consequences for
those adversely affected, regardless of the classification of the
function into question: see, generally, Mullan, Fairness: The
New Natural Justice (1975), 25 Univ. of Tor. L.J. 281.
As can be seen from the passages set out above,
the requirements of fairness may be different from
and less than those required by the rules of natural
justice. They may very well vary depending upon
the exact nature of the administrative function to
which they are being applied. In addition, Canadi-
an cases, so far, have all dealt only with the
procedural aspects of fairness: a right to notice and
to know the case against you. I was not referred to
any Canadian authority which had discussed
whether or not a requirement of lack of bias also
applied. I was referred to two United Kingdom
cases for this proposition: Regina v. Birmingham
City Justice, [1970] 1 W.L.R. 1428 (Q.B.);
McInnes v. Onslow-Fane et al., [1978] 1 W.L.R.
1520 (Ch.D.) approved Regina v. Secretary of
State for the Environment, [1982] Q.B. 593. In
my view, neither of these cases squarely stand for
the proposition claimed, although they do contain
dicta to support the proposition claimed. I have no
doubt that the duty to act fairly as enunciated by
the Supreme Court in the Nicholson case must
include a requirement for an unbiased decision
maker. Any other conclusion would undercut the
whole concept of the requirement of a duty of
fairness.
It would indeed be anomalous that there exist a
requirement that rules of procedural fairness be
followed in making an administrative decision but
not a requirement for an unbiased decision-maker.
A biased tribunal would be a much more serious
lack of fairness than non-compliance with proce
dural requirements.
Direct Pecuniary Bias?
It is necessary, therefore, to examine the facts in
this case to see whether a sufficient degree of bias
exists to offend the fairness principle. Only pecuni
ary bias has been alleged; there has been no allega
tion of reasonable apprehension of bias.
The rule relating to pecuniary bias, as it has
been articulated, is that a direct pecuniary inter
est, no matter how trivial, will constitute bias;
refer: Mullan, Administrative Law, vol. 1, Can.
Ency. Dig. (3rd ed., 1979), at page 3-128; S.A. de
Smith, Judicial Review of Administrative Action
(4th ed., 1980) at page 258.
In this case the pecuniary interest of Mr. Olsen
was alleged to arise because of his course of busi
ness dealings with Ontario Hydro. He had in the
past sold radioactive-resistant cables to Ontario
Hydro. It is clear he could expect to do so again in
the future. But, I can find no direct pecuniary
interest, as that concept has been defined in the
jurisprudence, held by Mr. Olsen at the date of the
hearings in question: June 27, 1983 and September
12, 1983. There was no contract conditionally in
effect pending the outcome of the new licences to
Ontario Hydro. There was no certainty that Mr.
Olsen would sell additional cables to Ontario
Hydro for the Pickering units, during the life of
the new licence. Also, it was admitted by counsel
for the applicant that the purchase of such cables
by Ontario Hydro was through a tendering pro
cess. The most that could be said of Mr. Olsen as
of the date of the hearing was that he could
entertain a reasonable expectation of pecuniary
gain as a result of approval of the licences.
I was not referred to any case, nor was I able to
find any, which has held that this kind of contin
gent expectation constitutes direct pecuniary bias.
All of the jurisprudence respecting pecuniary bias
that I have seen involves individuals who at the
date of the hearing held some sort of direct rela
tionship with the beneficiary of the decision such
that pecuniary benefit might with certainty arise
even though that benefit might be miniscule, eg.:
as a rate payer, as an estate agent for the transac
tion in question, as a shareholder. The classic
decisions in this regard are: In the Matter of
Hopkins (1858), El. Bl. & El. 100, 120 E.R. 445
(K.B. Div.) and Reg. v. Hammond et al. (1863), 9
L.T. Rep. N.S. 423 (Bail Ct.), where magistrates
who were shareholders in a railway company were
disqualified from hearing charges against persons
charged with travelling on the railway without
tickets; and The Queen v. Gaisford, [1892] 1 Q.B.
381 where a justice was disqualified because he
was a ratepayer in the municipality which would
benefit from the decision. See also The King v.
Hendon Rural District Council, [1933] 2 K.B.
696; Beer v. Rural Municipality of Fort Garry
(1958), 66 Man. R. 385 (C.A.); Regina v. Barns-
ley Licensing Justices, [1960] 2 Q.B. 167; Ladies
of the Sacred Heart of Jesus (Convent of the
Sacred Heart) v. Armstrong's Point Association et
al. (1961), 29 D.L.R. (2d) 373 (Man. C.A.); Reg.
v. Hain and others, Licensing Justices (1896), 12
T.L.R. 323 (Q.B. Div.).
Mr. Olsen, however, did not stand in a direct
and certain relationship with Ontario Hydro at the
date of the licensing decisions. The interest of Mr.
Olsen would clearly seem to be of the kind which
falls within the jurisprudence dealing with "rea-
sonable apprehension of bias." Yet Mr. Roman,
counsel for the applicant, in both written and oral
argument, asserted "reasonable apprehension of
bias . .. is not issue here."
Bias Allowed?
I would indicate that I do not agree with the
argument put forward by counsel for Ontario
Hydro that the Atomic Energy Control Act
impliedly authorizes pecuniary bias because it pro
vides for the appointment of part-time members to
the Board. I agree that the implication flowing
from this is that such Board members will engage
in outside business activities. But I think that
much clearer statutory wording than this would be
required to create a statutory exemption from the
common law rule requiring an unbiased decision-
maker.
Equally, I do not accept that the doctrine of
necessity applies. I think it would be quite possible
for the Board to be composed of persons expert
and knowledgeable in the field without having to
include among its members persons having pecuni
ary bias or holding interests which would raise a
reasonable apprehension of bias.
The jurisprudence indicates that the rules of
fairness as they relate to administrative type deci-
sion-making, may be less stringent than the rules
of natural justice which are required for judicial or
quasi-judicial decision-making. Counsel for the
Attorney General cited in this regard: Camino
Management Ltd. et al. v. Manitoba Securities
Commn. et al., [1979] 2 W.W.R. 594 (Man.
Q.B.); Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police, [1979] 1
S.C.R. 311 at pages 324-326; Re Webb and
Ontario Housing Corporation (1978), 93 D.L.R.
(3d) 187 (Ont. C.A.) at page 195. I would note
that while these cases indicate that bias does not
exist in the making of administrative decisions
merely because the decision-maker has certain
expertise, knowledge or even policy preferences,
none deal with the situation where the bias is
alleged to have arisen from possibility of pecuniary
gain.
Standing
The issue of standing logically precedes that of
bias although I have chosen to address them in the
reverse order. The bulk of the argument in this
case focussed on whether or not the applicant,
Energy Probe, has standing to bring this
application.
Counsel for the plaintiff relied heavily on the
Supreme Court decisions in Thorson v. Attorney
General of Canada et al., [1975] 1 S.C.R. 138;
Nova Scotia Board of Censors v. McNeil, [1976]
2 S.C.R. 265; 55 D.L.R. (3d) 632 and Minister of
Justice of Canada et al. v. Borowski, [1981] 2
S.C.R. 575; 130 D.L.R. (3d) 588. He argued that
they should be applied to accord the applicant
standing in this case. Having reviewed the relevant
authorities I am not convinced that an analysis of
these cases adds much to the issue of standing with
respect to a claim for a writ of certiorari. It seems
more relevant to the seeking of a declaratory
judgment.
Energy Probe is a non-profit corporation which
conducts research and promotes public education
in energy-related matters. Its funding comes from
over ten thousand individuals across Canada, as
well as from corporations, foundations and several
levels of government. It has intervened before or
made submissions to various governmental bodies
such as the Atomic Energy Control Board, the
National Energy Board, the Ontario Energy Board
and the Berger Enquiry. It has authored a variety
of books, reports, magazine and newspaper articles
on energy-related subjects as well as participating
in broadcasts, conferences and lectures.
As noted above, Energy Probe made submis
sions to the A.E.C.B. with respect to the licensing
of Units 5 and 6 of Ontario Hydro's Pickering "B"
Nuclear Generating Station. While the A.E.C.B.
has developed a practice of accepting such submis
sions from Energy Probe there is no statutory
requirement on it to do so. There is no statutory
requirements on the A.E.C.B. to hold public hear
ings. Section 8 of the Atomic Energy Control Act,
R.S.C. 1970, c. A-19, provides:
8. The Board may,
(a) make rules for regulating its proceedings and the
performance of its functions;
A policy statement issued by the Board, effective
May 17, 1983, entitled "Atomic Energy Control
Board Policy and Procedures on Representations
and Appearances" states:
The AECB recognizes that in fulfilling its regulatory respon
sibilities it should give interested parties * an opportunity to
express their views on matters before the Board. It is therefore
prepared to receive written statements of views (herein called
representations), and in certain cases to grant appearances
before the President and appropriate AECB staff, or at meet-
ings of the Board, on matters which fall within the scope of the
AECB's regulatory responsibilities.
* An interested party may be a licence applicant, a licensee,
one or more members of the public, or a special interest
group.
The document goes on to give detailed instructions
as to how such representations should be made,
their timing and place of delivery.
As I read the authorities the right to standing in
a claim for a writ of certiorari has always been
much broader than that applicable to other types
of claims, including those seeking a declaration of
the constitutional invalidity of a statute (the issue
addressed in the Thorson, McNeil and Borowski
cases).
I find in de Smith's Judicial Review of
Administrative Action (Fourth Edition, 1980) at
page 418 the following summary:
There are numerous dicta to the effect that a "stranger" may
be awarded certiorari. On the other hand, there is no reason for
doubting the soundness of Lord Denning's observation that the
court "would not listen, of course, to a mere busybody who was
interfering in things which did not concern him"; and in no
reported English case has an application brought by such a
person been successful. It is thought that the present law may
properly be stated as follows. Certiorari is a discretionary
remedy, and the discretion of the court extends to permitting an
application to be made by any member of the public.
In Strayer, Judicial Review of Legislation in
Canada (1968) at page 107:
There appears to be no requirement of "interest" on the part
of an applicant for certiorari. The general rule in England is
that even a "stranger" may apply for certiorari though the
court would have a discretion to refuse the application. A
"person aggrieved" (who may be anyone affected, however
Slightly) is entitled to the issue of the writ ....
And, in Mullan, Administrative Law (Vol. 1, Title
3, Ency. Dig. 3rd ed. 1979) section 157:
... when application is made by a person aggrieved the courts
will normally grant the remedy "ex debito justitiae" or "as of
right"; particularly where the error is a jurisdictional one....
On the other hand, where the application is made by a person
who is not aggrieved the grant of the remedy is purely discre
tionary and will depend on the court's overriding conception of
whether quashing the decision under challenge would be for the
public good.
These summary statements seem to me to accu
rately reflect the jurisprudence on this matter. The
starting point would appear to be In the Matter of
a Suit of Forster against Mary Owen Forster and
Berridge (1863), 4 B. & S. 187, at page 199; 122
E.R. 430 (K. B. Div.), at page 435:
I entirely concur in the proposition that, although the Court
will listen to a person who is a stranger, and who interferes to
point out that some other Court has exceeded its jurisdiction
whereby some wrong or grievance has been sustained, yet that
is not ex debito justitiae, but a matter upon which the Court
may properly exercise its discretion, as distinguished from the
case of a party aggrieved, who is entitled to relief ex debito
justitiae ....
See also The Queen v. The Justices of Surrey
(1870), Law Rep. 5 Q.B. 466; The King v. Groom,
et al., [1901] 2 K.B. 157; The King v. Richmond
Confirming Authority, [1921] 1 K.B. 248; The
King v. Stafford Justices, [1940] 2 K.B. 33.
This law was applied by at least one Canadian
court in Re Corporation of District of Surrey,
Municipal By-Law, 1954, No. 1291 (1956), 6
D.L.R. (2d) 768 (B.C.S.C.). In that case the
British Columbia Supreme Court allowed a resi
dent of a town to apply for certiorari to quash a
decision of the municipal planning board which
had permitted a club to reconstruct its building,
allegedly without adequate parking space. The
Court held that a person such as the resident in
question might be a person aggrieved in the sense
required by the jurisprudence but, in any event, if
he were not it would be an appropriate case in
which the Court as a matter of the discretion
should grant the applicant standing.
I notice also in Rothmans of Pall Mall Canada
Ltd. et al. v. Minister of National Revenue et al.,
[1976] 2 F.C. 500 (C.A.), at page 509 that Mr.
Justice Le Dain in speaking for the court makes
the distinction between an applicant for certiorari
who is a stranger and one who is aggrieved.
The expression that is given to the requirement of locus standi
may vary somewhat from one recourse to another, and it may
be that the requirement is not as strict with respect to certiorari
and prohibition, where in certain circumstances a stranger may
be recognized as having standing, as it is with respect to other
recourses.
In addition, there are numerous cases in which a
slight or very remote interest has been held suffi
cient to grant an applicant standing as an
aggrieved person. And, Mr. Justice Dickson speak
ing for the Supreme Court in Martineau v. Mat-
squi Institution Disciplinary Board, [1980] 1
S.C.R. 602, at page 619; 106 D.L.R. (3d) 385, at
pages 402-403 describes the function of certiorari,
albeit in reference to the standing of an aggrieved
person, in the following terms:
Certiorari stems from the assumption by the courts of supervi
sory powers over certain tribunals in order to assure the proper
functioning of the machinery of government. To give a narrow
or technical interpretation to "rights" in an individual sense is
to misconceive the broader purpose of judicial review of
administrative action. One should, I suggest, begin with the
premise that any public body exercising power over subjects
may be amenable to judicial supervision, the individual interest
involved being but one factor to be considered in resolving the
broad policy question of the nature of review appropriate for
the particular administrative body.
Accordingly, even without reference to the
Thorson, McNeil and Borowski cases, I would
hold that the applicant's position in this case is
such as to justify it being granted standing to
apply for a writ of certiorari. The fact that it is a
serious public interest group and that it made
representations to the Atomic Energy Control
Board with respect to the decision being chal
lenged (even though pursuant to the practice of
the Board rather than pursuant to any statutory
entitlement) would seem to me to justify the Court
exercising its discretion to grant the applicant
standing. This is so even if the applicant does not
have a sufficient interest to classify it as an
aggrieved person. See Canadian Broadcasting
League v. Canadian Radio-television and Tele
communications Commission, et al., [ 1980] 1 F.C.
396; 101 D.L.R. (3d) 669 (C.A.) for a decision
where a public interest advocate in the field of
broadcasting appearing before the C.R.T.C. pur
suant to a statutory requirement for public hear
ings was held entitled to challenge a decision of
that tribunal.
Having come to this conclusion I am still left
with trying to understand the scope of the appli
cant's somewhat unfocussed argument respecting
the Thorson, McNeil and Borowski cases.
I have considered whether part of his argument
was unarticulated and might have been based on
the distinction between standing in a certiorari
claim as of right and standing only at the discre
tion of the Court. In the latter case the jurispru
dence seems to indicate that there is a greater
scope to refuse a writ of certiorari on the ground
that it would not be in the best interest of the
public to grant one. Obviously, in the instant case
considerations of public interest might very well
result in the applicant's being refused an order
quashing the A.E.C.B. decision, even if bias was
found to exist. However, I do not think one could
make an argument based on Thorson, McNeil and
Borowski that the rules of discretionary standing
respecting certiorari should somehow or other be
converted into rules giving standing as of right. In
none of those cases was the appellant granted
standing as of right. In all three cases the Court
saw the granting of standing as a discretionary
matter for the courts.
This leaves the question of the applicability of
an argument based on the Thorson, McNeil and
Borowski decisions to the issue of standing in this
case with respect to the claim for a declaratory
judgment.
At the outset it should be noted that counsel for
the applicant explained the claim for alternative
remedies (a writ of certiorari or a declaration) in
the following way. The applicant would prefer a
declaratory judgment because it is "less draconi
an" in import than a writ of certiorari but since
the jurisprudence might indicate that the applicant
could not obtain standing to seek a declaration, it
deemed it expedient to institute simultaneous pro
ceedings for both remedies.
I take the starting point to be the conclusion of
Mr. Justice Martland in the Borowski case, [1981]
2 S.C.R. 575, at page 598; 130 D.L.R. (3d) 588, at
page 606:
I interpret these cases [Thorson and McNeil] as deciding that
to establish status as a plaintiff in a suit seeking a declaration
that legislation is invalid, if there is a serious issue as to its
invalidity, a person need only to show that he is affected by it
directly or that he has a genuine interest as a citizen in the
validity of the legislation and that there is no other reasonable
effective manner in which the issue may be brought before the
Court.
As applied to the applicant's claim in the
present case it is clear that a justiciable issue has
been raised: that of the validity or invalidity of an
A.E.C.B. decision questioned on the basis of bias. I
think it is also clear that the applicant could be
said to have a genuine interest as a citizen in the
validity of that decision. There is an interest which
the citizenry can be said to have in feeling confi
dent that decisions of the kind in question are
made by an unbiased tribunal; there is an interest
in ensuring that public officials making decisions
of the kind in issue here do so without taint of
personal pecuniary gain.
It is also clear in this case that if the applicant is
not allowed to challenge the validity of the deci
sion there is no other reasonable and effective
manner in which the issue might be brought before
the courts. There is no competitor, in Ontario, to
Ontario Hydro who might challenge the Board
decision; it would appear that none of the competi
tors of Phillips Cables would be able to challenge
or indeed be interested in challenging the Board
decision. At the hearing Ontario Hydro and the
Attorney General both noted that, theoretically,
they could challenge the decision. Obviously
Ontario Hydro would not do so, and while no
demand was made of the Attorney General it is
clear from his action in defending the decision of
the Board that he would not have done so had one
been made. In this regard the situation, being one
in which there is a lack of likelihood of any other
effective challenge being possible, would seem to
fall close to that existing in the Thorson case;
closer even than to that in Borowski.
In Thorson, McNeil and Borowski the issue,
however, was one of the constitutional validity of
legislation; that is not the issue here. The question
remains whether the principles set out in those
decisions are confined to cases in which standing is
sought to challenge the constitutional validity of
legislation or whether they might be applicable to
other situations as well. My reading of the three
cases leads me to conclude that the focal point of
the Supreme Court's decisions was not the fact
that constitutional legislative jurisdiction was
being challenged. Rather the underlying funda
mental principle seems to be that a justiciable
issue existed, one normally reviewable by the
courts, and that such issue should not be immu
nized from judicial review by overstringent rules of
standing. I quote from the Court's decision in
Thorson v. Attorney General of Canada et al.,
[1975] 1 S.C.R. 138, at page 143:
The substantive issue raised by the plaintiff's action is a
justiciable one; and, prima facie, it would be strange and,
indeed, alarming, if there was no way in which a question of
alleged excess of legislative power, a matter traditionally within
the scope of the judicial process, could be made the subject of
adjudication.
and at page 163:
It is not the alleged waste of public funds alone that will
support standing but rather the right of the citizenry to consti
tutional behaviour by Parliament where the issue in such
behaviour is justiciable as a legal question.
While there is no doubt that the division of
constitutional legislative jurisdiction may be the
primary area in which justiciable issues could be
immunized from court review, in the absence of
appropriate rules respecting standing, I find noth
ing in the Thorson, McNeil and Borowski deci
sions to indicate that the issue of constitutional
legislative jurisdiction is the sine qua non of those
decisions.
It seams to me that the principles underlying the
Thorson, McNeil and Borowski decisions are ap
plicable to the instant case. There exists an issue of
public interest comparable to that of having legis
latures operate within the bounds placed upon
them by the constitution; that is the interest of the
public in having decisions of the kind made by the
A.E.C.B., decided by unbiased tribunals. There is
no other reasonable effective manner in which the
issue may be brought before the Court. Applying
the principles of those decisions to a case such as
the present does not open the floodgates to litiga
tion; nor does it extend the rules of standing too
broadly. It does no more than allow litigants who
might bring a motion for certiorari to frame that
action, instead, as one for a declaratory judgment.
In this sense it merely avoids what would other
wise be an anomalous situation of a litigant such
as the present applicant having standing to claim a
writ of certiorari but not having standing to frame
that same claim as a request for a declaratory
judgment. For these reasons I think the Supreme
Court decisions in Thorson, McNeil and Borowski
extend to cover a situation such as the present.
Conclusion
Since I do not find direct pecuniary bias as
alleged by the applicant, and since what would
appear to be the significant issue, reasonable
apprehension of bias, was never put in issue in this
case, I must dismiss both the application for a writ
of certiorari and the action for a declaratory
judgment.
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