Judgments

Decision Information

Angus v. Canada (C.A.)

Collection	Judgments
Date	1990-07-04
Report citation	[1990] 3 F.C. 410
File numbers	A-21-90
Subjects	Administrative Law Environment Railways

Decision Content

A-21-90

Iain Angus, the Corporation of the City of Thun der Bay and Greenpeace Canada (Appellants)

Her Majesty the Queen and the Minister of Transport (Respondents)

INDEXED AS: ANGUS V. CANADA (CA.)

Court of Appeal, Hugessen, MacGuigan and Decary JJ.A.—Ottawa, May 9 and July 4, 1990.

Environment — Order in Council requiring VIA Rail to reduce passenger-train services — Governor in Council acting under s. 64 National Transportation Act, 1987 and on recom mendation of Minister of Transport — Environmental Assess ment and Review Process Guidelines Order not complied with

— Appeal from Trial Division decision denying certiorari Whether compliance with Guidelines Order condition prece dent to exercise by Governor in Council of statutory power under s. 64 — Interpretation of "department, board or agency of Government of Canada" and "decision making authority"

— Majority holding Governor in Council can ignore Guide lines Order — Absence of prima facie evidence of immediate and direct effect on environment.

Railways — Order in Council requiring VIA Rail to elimi nate and reduce passenger-train services — Appeal from refusal to quash as neither Governor in Council nor Minister of Transport complying with Environmental Assessment and Review Process Guidelines Order — Observation of Guidelines Order not condition precedent to exercise by Governor in Council of statutory power under s. 64 National Transporta tion Act, 1987.

Judicial review — Prerogative writs — Certiorari — Order in Council reducing VIA Rail passenger-train services Governor in Council, Minister not observing Environmental Assessment and Review Process Guidelines Order — Majority holding respondents not bound — Failure to explain delay in filing application, absence of prima facie evidence of adverse environmental impact relevant factors in denying relief.

Due to a decision to decrease the subsidy paid to VIA Rail ("VIA") for passenger-train services, the Governor in Council, on the recommendation of the Minister of Transport and pursuant to section 64 of the National Transportation Act, 1987, enacted Order in Council P.C. 1989-1974 (SOR/89-488) which required VIA to eliminate specified passenger-train ser vices and significantly reduce others.

On the day of the enactment of the Order in Council, an information package was released which stated that the Minis ter of Transport had directed that the environmental impact of VIA's network reorganization be examined. Subsequently, a

document entitled "Changes to the VIA Network: Potential Environmental Impact" was tabled in the House of Commons. That document did not refer to the Environmental Assessment and Review Process Guidelines Order (the "EARP Guidelines Order") nor was it made available to the public prior to enactment of the Order in Council. Both the Ministers of Transport and of the Environment took the position that the EARP Guidelines Order applied to VIA's reorganization and that the Department of Transport was the "initiating department".

This is an appeal from the dismissal of a motion to quash the Order in Council on the ground that it had been implemented without regard to the EARP Guidelines Order. The issue is whether the Governor in Council and the Minister of Transport were legally obliged to comply with the EARP Guidelines Order.

Held, the appeal should be dismissed.

Per MacGuigan J.A. (Hugessen J.A. concurring): Although the Governor in Council could be thought of as the first emanation of the executive power and therefore considered a "board or agency of the Government of Canada", that is not the sense which should attach to the Governor in Council under the EARP Guidelines Order. The issue in this appeal comes close to the heart of Cabinet government, and it would require clear language for the Governor in Council to be included in the phrase "department, board or agency of the Government of Canada". The question of the desirability of submitting all Orders in Council to environmental assessment was one of policy and accordingly beyond the purview of the courts. That the enactment did not reveal the legislative intention to submit every initiative of the Governor in Council to environmental assessment was supported by the Department of the Environ ment Act, more particularly by section 6 thereof, which appears to be stronger than sections 4 and 5 in distinguishing the Governor in Council from departments, boards and agencies: "the Minister may, by order, with the approval of the Governor in Council, establish guidelines for use by departments, boards and agencies of the Government of Canada". The conclusion is compelling that, on the language used, the Guidelines Order does not require compliance by the Governor in Council.

Nor did the Guidelines Order require compliance by the Minister of Transport. Where an action is taken under section 64 of the National Transportation Act, 1987, the decision-maker is the Governor in Council only. The Trial Judge was correct when he found that "Even if the Ministry of Transport is considered to be the initiating department, it is clearly not the decision-making body in so far as this Order in Council is concerned". The requirement that an advisory person or board act fairly does not determine the status of that adviser as a decision-maker for the purposes of the Guidelines Order.

Per Decary J.A. (concurring in the result): The purpose of the Department of the Environment Act (the "Act") was to submit all new federal projects to early environmental assess ment, and the Guidelines the means to achieve this purpose. The Act is binding on the Government of Canada, whether it acts through the Governor in Council or through a specific Minister. Should there be any doubt as to whether the Act is

expressly binding on the Government of Canada, its intent and context point, at least, to a necessary implication that it is. The beneficent purpose of the Act would be frustrated should a distinction be made between a Minister's federal projects and those of the Cabinet for in modern administration, decisions are planned, made and acted upon by the Governor in Council with the assistance of specific ministers and departments.

The EARP Guidelines Order, enacted pursuant to section 6 of the Act, applies to any activity for which the Government of Canada has a decision-making responsibility, notwithstanding who the decision-maker is on behalf of the Government, be it a department, a Minister or the Governor in Council. The Guide lines do not require that a proposal be made by an initiating department. When the Governor in Council makes a decision "on the recommendation" of a Minister there is a "proposal" for the purposes of the application of the Guidelines and the "initiating department", for the purposes of the administration of the Guidelines, is the department responsible for the plan ning and undertaking of the proposal.

In the case at bar, there was only one "initiating depart ment": the Department of Transport, and but one "decision making authority": the Minister of Transport. The appellants' contention, that "when the Governor in Council deals with a proposal on the basis of a recommendation of a Minister, that Minister has exercised a power of decision in respect of that proposal", was valid. There is nothing in the Guidelines, read in conjunction with the Act, that imports a notion of "finality", not even of "legality", in the expression "decision making authority". One must look at the actual decisions and actions which have taken place and which have to be taken by the relevant government departments to decide which department is the de facto deciding authority. It followed that in exercising a decision making authority on behalf of the Government of Canada, the Minister was bound to apply the EARP Guidelines Order. Furthermore, the Department of the Environment Act and the Guidelines make it a condition precedent to the exer cise of its statutory power under section 64 that the Governor in Council, although not an "initiating department", ascertain that the Department of Transport complied with the Guidelines.

The appellants should, however, be denied certiorari. The grounds upon which a court may refuse to exercise its discre tion to issue certiorari are well established: unreasonable delay on the part of the applicant; the fact that the delay leaves nothing for the court to prohibit; the fact that no useful purpose would be served by granting the remedy and the fact that the granting of the order would be detrimental to good administra tion. Appellants explained neither the delay in filing the application attacking the Order in Council nor the nature of their concerns. The absence of even prima facie evidence that the proposal might have an immediate and direct effect on the quality of the environment also justified the refusal.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Environmental Protection Act, R.S.C., 1985

(4th Supp.), c. 16, ss. 53, 146 (not yet in force). Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as

am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 9, 10, 11, 13.

Department of the Environment Act, R.S.C., 1985, c. E-10, ss. 4(1),(2), 5, 6, 7.

Environmental Assessment and Review Process Guide lines Order, SORI84-467 , ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18. Interpretation Act, R.S.C., 1985, c. 1-21, ss. 2, 12. National Transportation Act, 1987, R.S.C., 1985 (3rd

Supp.), c. 28, s. 64.

Order Varying Certain National Transportation Agency Orders Respecting Railway Companies, SOR/89-488.

CASES JUDICIALLY CONSIDERED NOT FOLLOWED:

Re Abel et al. and Advisory Review Board (1980), 31 O.R. (2d) 520; 119 D.L.R. (3d) 101; 56 C.C.C. (2d) 153 (C.A.).

CONSIDERED:

Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309; [1989] 4 W.W.R. 526; (1989), 37 Admin. L.R. 39; 3 C.E.L.R. (N.S.) 287; 26 F.T.R. 245 (T.D.); affd [1990] 2 W.W.R. 69; (1989), 38 Admin. L.R. 138; 4 C.E.L.R. (N.S.) 1; 27 F.T.R. 159; 99 N.R. 72 (F.C.A.); Friends of the Oldman River Society v. Canada (Minister of Trans port), [1990] 2 F.C. 18 (C.A.); Naskapi-Montagnais Innu Assn. v. Canada (Minister of National Defence), [1990] 3 F.C. 381 (T.D.); Province of Bombay v. Munic ipal Corporation of the City of Bombay and Another, [1947] A.C. 58; R. v. Ouellette, [1980] 1 S.C.R. 568; (1980), 111 D.L.R. (3d) 216; 52 C.C.C. (2d) 536; 15 C.R. (3d) 373; 32 N.R. 361.

REFERRED TO:

Canadian Wildlife Federation Inc. et al. v. Canada (Minister of the Environment) and Saskatchewan Water Corp. (1989), 31 F.T.R. 1 (F.C.T.D.); Harelkin v. Uni versity of Regina, [1979] 2 S.C.R. 561; [1979] 3 W.W.R. 676; (1979), 26 N.R. 364.

AUTHORS CITED

Canada. House of Commons Debates, Vol. 131, no. 68, 2nd Sess., 34th Parl., October 3, 1989, at page 4252. Canada. House of Commons Standing Committee on Transport. Minutes of Proceedings and Evidence, Issue No. 18 (October 16, 1989), at page 18:36.

Dawson, R. MacGregor. The Government of Canada, 5th

ed. by Norman Ward. Toronto: University of Toronto Press, 1970.

de Smith, S. A. Judicial Review of Administrative Action, 4th ed. by J. M. Evans. London: Stevens & Sons Ltd., 1980.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Dussault, Rene and Borgeat, Louis. Administrative Law—A Treatise, 2nd ed., translated by M. Rankin. Toronto: Carswell, 1985.

Fajgenbaum and Hanks' Australian Constitutional Law,

2nd ed. by Peter Hanks. Sydney: Butterworths, 1980. Halliday, W. E. D. "The Executive of the Government of

Canada" (1959), 2 Can. Pub. Admin. 229.

Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswell Co. Ltd., 1985.

Jones, David P. and de Villars, Anne S. Principles of Administrative Law. Toronto: Carswell Co. Ltd., 1985.

Mallory, James Russell. The Structure of Canadian Gov ernment. Toronto: Macmillan Co. of Canada Ltd., 1971.

COUNSEL:

Brian A. Crane, Q. C. and Martin W. Mason for appellants.

Brian J. Saunders and Joseph C. de Pencier for respondents.

SOLICITORS:

Gowling, Strathy & Henderson, Ottawa, for appellants.

Deputy Attorney General of Canada for respondents.

The following are the reasons for judgment rendered in English by

MACGUIGAN J.A.: The question for decision in this case is whether the Governor in Council or the Minister of Transport is legally obliged to comply with an environmental guidelines order. The order in question is the Environmental Assessment and Review Process Guidelines Order, SOR/84-467, of June 22, 1984 ("the EARP Guidelines Order").

This is an expedited appeal from an order of Rouleau J., rendered orally on January 12, 1990 [T-47-90, not yet reported], which dismissed the appellants' motion for certiorari seeking to quash Order in Council P.C. 1989-1974 [SOR/89-488], which amended orders of the National Transporta-

tion Agency in respect of the passenger-train ser vices of VIA Rail ("VIA"). The impugned Order in Council was made on the recommendation of the Minister of Transport ("the Minister") and required VIA to eliminate specified passenger ser vices and significantly reduce others.

In its budget of April 1989, the Government of Canada announced its intention to decrease the subsidy paid to VIA for passenger-train service by one billion dollars over the following five years. The following month the Minister informed VIA's Board of Directors of the Government's intention to downsize VIA's services. As a result, VIA's Board proposed a five-year corporate plan to the Minister based on the reduced funding levels sug gested by the Government. After considering the corporate plan, the Minister decided to recom mend major passenger rail cuts to the federal Cabinet.

On October 3, 1989, the Minister advised the House of Commons that the Government had respected the environmental review process in rela tion to the VIA reorganization. On October 4, the Governor in Council, acting pursuant to section 64 of the National Transportation Act, 1987, R.S.C., 1985 (3rd Supp.), c. 28, passed Order in Council P.C. 1989-1974, which required VIA to eliminate certain passenger services and significantly reduce others. The Order in Council required VIA to begin the implementation of the reductions on January 15, 1990. The final effects of the imple mentation include the elimination of 51% of the VIA passenger network and the termination of 38% of the VIA workforce. On the same day that the Order in Council was passed, the Minister held a news conference to announce the VIA cuts and released an information package in which it was stated that the Minister had directed that the environmental impact of the reorganization be carefully examined.

On October 11, 1989 an undated, four-page document titled "Changes to the VIA Network:

Potential Environmental Impact" was tabled in the House of Commons. This document did not refer to the EARP Guidelines Order. The docu ment was not made available to the public prior to the issuance of the challenged Order in Council, and the public was not invited to formally respond to the environmental impact of the VIA decision prior to the Cabinet's decision.

In the House and before the Standing Commit tee on Transport, both the Ministers of Transport and the Environment took the position that the EARP Guidelines Order applied to the reorganiza tion, and that, for the purposes of the Guidelines Order, the Department of Transport was the "ini- tiating department". However, there is no record of any decision taken by either the Minister of Transport or of the Minister of Environment pur suant to section 12 or 13 of the EARP Guidelines Order.

On January 9, 1990, the appellants, namely, the Member of Parliament for Thunder Bay-Atiko- kan, the City of Thunder Bay and Greenpeace Canada, filed an application under section 18 of the Federal Court Act, R.S.C., 1985, c. F-7, seek ing to quash the Order in Council in question. The application was heard together with another seek ing an injunction in respect of the same Order in Council. The Motions Judge delivered reasons from the bench dismissing both applications. The appeal at bar relates only to the application for certiorari.

Before, the Motions Judge, the appellants unsuc cessfully challenged the validity of the Order in Council on the basis that it had been implemented without regard for the mandatory terms of the EARP Guidelines Order. The principal provisions of this Order are as follows:

GUIDELINES RESPECTING THE IMPLEMENTATION OF THE FEDERAL POLICY ON ENVIRONMENTAL ASSESSMENT AND REVIEW

Short Title

1. These Guidelines may be cited as the Environmental Assessment and Review Process Guidelines Order.

Interpretation

2. In these Guidelines,

"Environmental Impact Statement" means a documented assessment of the environmental consequences of any pro posal expected to have significant environmental conse quences that is prepared or procured by the proponent in accordance with guidelines established by a Panel; (enonce des incidences environmentales)

"department" means, subject to sections 7 and 8,

(a) any department, board or agency of the Government of Canada, and

(b) any corporation listed in Schedule D to the Financial Administration Act and any regulatory body;

(ministere)

"initiating department" means any department that is, on behalf of the Government of Canada, the decision making authority for a proposal; (ministere responsable)

"Minister" means the Minister of the Environment; (Ministre) "Office" means the Federal Environmental Assessment Review

Office that is responsible directly to the Minister for the

administration of the Process; (Bureau)

"Panel" means an Environmental Assessment Panel that con ducts the public review of a proposal pursuant to section 21; (commission)

"Process" means the Environmental Assessment and Review Process administered by the Office; (processus)

"proponent" means the organization or the initiating depart ment intending to undertake a proposal; (promoteur)

"proposal" includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility. (proposition)

Scope

3. The Process shall be a self assessment process under which the initiating department shall, as early in the planning process as possible and before irrevocable decisions are taken, ensure that the environmental implications of all proposals for which it is the decision making authority are fully considered and where the implications are significant, refer the proposal to the Minister for public review by a Panel.

4. (1) An initiating department shall include in its consider ation of a proposal pursuant to section 3

(a) the potential environmental effects of the proposal and the social effects directly related to those environmental effects, including any effects that are external to Canadian territory; and

(b) the concerns of the public regarding the proposal and its potential environmental effects.

(2) Subject to the approval of the Minister and the Minister of the initiating department, consideration of a proposal may include such matters as the general socio-economic effects of the proposal and the technology assessment of and need for the proposal.

5. (1) Where a proposal is subject to environmental regula tion, independently of the Process, duplication in terms of public reviews is to be avoided.

(2) For the purpose of avoiding the duplication referred to in subsection (1), the initiating department shall use a public review under the Process as a planning tool at the earliest

stages of development of the proposal rather than as a regulato ry mechanism and make the results of the public review available for use in any regulatory deliberations respecting the proposal.

Application

6. These Guidelines shall apply to any proposal

(a) that is to be undertaken directly by an initiating department;

(b) that may have an environmental effect on an area of federal responsibility;

(d) that is located on lands, including the offshore, that are administered by the Government of Canada.

7. Where the decision making authority for a proposal is a corporation listed in Schedule D to the Financial Administra tion Act, the Process shall apply to that proposal only if

(a) it is the corporate policy of that corporation to apply the Process; and

(b) the application of the Process to that proposal is within the legislative authority of that corporation.

8. Where a board or an agency of the Government of Canada or a regulatory body has a regulatory function in respect of a proposal, these Guidelines shall apply to that board, agency or body only if there is no legal impediment to or duplication resulting from the application of these Guidelines.

9. (1) Where, in respect of a proposal, there are two or more initiating departments, the initiating departments shall deter mine which of the responsibilities, duties and functions of an initiating department under these Guidelines shall apply to each of them.

(2) Where the initiating departments cannot under subsec tion (1) agree to a determination, the Office shall act as an arbitrator in the making of the determination.

INITIAL ASSESSMENT

Initiating Department

10. (I) Every initiating department shall ensure that each proposal for which it is the decision making authority shall be subject to an environmental screening or initial assessment to determine whether, and the extent to which, there may be any potentially adverse environmental effects from the proposal.

(2) Any decision to be made as a result of the environmental screening or initial assessment referred to in subsection (1) shall be made by the initiating department and not delegated to any other body.

11. For the purposes of the environmental screening and initial assessment referred to in subsection 10(1), the initiating department shall develop, in cooperation with the Office,

(a) a list identifying the types of proposals that would not produce any adverse environmental effects and that would, as a result, be automatically excluded from the Process; and

(b) a list identifying the types of proposals that would produce significant adverse environmental effects and that would be automatically referred to the Minister for public review by a Panel.

12. Every initiating department shall screen or assess each proposal for which it is the decision making authority....

13. Notwithstanding the determination concerning a pro posal made pursuant to section 12, if public concern about the proposal is such that a public review is desirable, the initiating department shall refer the proposal to the Minister for public review by a Panel.

15. The initiating department shall ensure

(a) after a determination concerning a proposal has been made pursuant to section 12 or a referral concerning the proposal has been made pursuant to section 13, and

(b) before any mitigation or compensation measures are implemented pursuant to section 13,

that the public have access to the information on and the opportunity to respond to the proposal in accordance with the spirit and principles of the Access to Information Act.

The reasons for decision of Rouleau J. on the matter herein appealed are as follows (Appeal Book at pages 155-156) [reasons for order at pages 4-5]:

Concerning the Environmental Assessment Review [Process] Guidelines, I am convinced here once again that the Governor General in Council is not bound.

It seems ludicrous that both the Minister of Transport and of the Environment, as well as the Standing Committee, felt an obligation to at least consider the environmental impact. As I see it, it is, nevertheless, not a binding obligation on the body that passed the impugned Order.

Under the Guidelines, the "initiating department" must not only be the proposer of the anticipated directive, but it must also be the decision-maker, ie. the enacting body. As you well know, it is not up to the Court to legislate, but Parliament. It is they who have chosen to exclude from their definition of "initiating department" this particular powerful executive arm of government. Though it has been suggested to me that courts may have, in certain circumstances, found that the Governor General in Council could be considered a "board" under the Federal Court Act, one cannot, by analogy, transpose the finding to give this Court the authority to make a determina tion that under the EARP Guidelines it was meant to include this body in its definition of "initiating departments".

Even if the Ministry of Transport is considered to be the initiating department, it is clearly not the decision-making body in so far as this Order in Council is concerned, which was passed pursuant to the extraordinary power granted under section 64 of the National Transportation Act.

Since respondents did not contend that either the Governor in Council or the Minister did in fact comply with the Guidelines,' the principal ques tion before this Court is whether the EARP Guidelines Order should be interpreted so as to require the compliance of the Governor in Council or the Minister in these circumstances.

Since the impugned Order in Council was made under section 64 of the National Transportation Act, 1987, 2 it is common ground that, as it was put by Estey J. for the Supreme Court of Canada in Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735 at pages 754, 756, the power of the Governor in Council by his own motion to vary or rescind any rule or order of the Canadian Transport Commission is "legislative action in its purest form" and that "the discretion of the Governor in Council is complete provided he observes the jurisdictional boundaries" of the provision. It is also common ground that this legislative power of the Governor in Council is subject to judicial review if he has failed to observe any condition precedent to the exercise of the power. Again in the words of Estey J. (at page 748):

Let it be said at the outset that the mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond review. If that body has failed to observe a condition precedent to the exercise of that power, the court can declare that such purported exercise is a nullity.

1 The respondents did, however, contend that there was suffi cient evidence of a lack of adverse effect on the environment to warrant this Court's refusing to grant the discretionary remedy of certiorari, even if it were otherwise justified. In addition to this argument that certiorari would serve no useful purpose, the respondents also invoked the appellant's alleged delay in com mencing proceedings before the Trial Division as a reason for refusing certiorari.

The text of this provision is as follows:

64. The Governor in Council may, at any time, in the discretion of the Governor in Council, either on petition of any party or person interested or of the Governor in Coun cil's own motion, vary or rescind any decision, order, rule or regulation of the Agency, whether the decision or order is made inter partes or otherwise, and whether the rule or regulation is general or limited in its scope and application, and any order that the Governor in Council may make with respect thereto is binding on the Agency and on all parties.

The question then becomes one of whether the requirements of the EARP Guidelines Order con stitute such a condition precedent.

The contentions of the appellants in this respect are as follows. The EARP Guidelines Order applies, inter alia, to any proposal that may have an environmental effect on an area of federal responsibility (paragraph 6(b)). A "proposal" is defined as including "any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility" (section 2). 3 The initial responsibility for implementing the EARP Guidelines Order falls on the "initiating depart ment," defined as "any department, board or agency of the Government," any regulatory body, or any Schedule D (Financial Administration Act [R.S.C. 1970, c. F-10]) Crown corporation that is, on behalf of the Government, the decision-making authority for the proposal (section 2).

The appellants point to the breadth of the lan guage used throughout the Guidelines Order: "the environmental consequences of any proposal expected to have significant environmental conse quences" (section 2); "any department, board or agency of the Government of Canada" (section 2), "any department that is, on behalf of the Govern ment of Canada, the decision making authority for a proposal" (section 2); "any initiative, undertak ing or activity for which the Government of Canada has a decision making responsibility" (sec- tion 2); "as early in the planning process as possi ble and before irrevocable decisions are taken" (section 3); "the potential environmental effects of the proposal and the social effects directly related to those environmental effects" (paragraph 4(a)),

3 It is troubling that the French version of the definition section, section 2, includes no counterpart to the English initiative.

proposition S'entend en outre de toute entreprise ou acti- vite a regard de laquelle le gouvernement du Canada participe a la prise de decisions. (proposal)

Nevertheless, the general sense of the two versions is the same, and since the English version is equally authoritative, I believe we must accept the word initiative without further question, especially since the English version also utilizes "initiating" in the phrase "initiating department" (ministere responsable).

"any proposal . .. that may have an environmental effect on any area of federal responsibility" (para- graph 6(b)). All of these, it is argued, support a universalist approach to the meaning of the Guide lines Order.

The appellants also referred to the Department of the Environment Act, R.S.C., 1985, c. E-10, pursuant to section 6 of which the Minister of the Environment was given power to establish guide lines such as those contained in the Order. Section 5 of that Act gives that Minister the duty to:

(a) initiate, recommend and undertake programs, and coor dinate programs of the Government of Canada that are designed

. . .

(ii) to ensure that new federal projects, programs and activities are assessed early in the planning process for potential adverse effects on the quality of the natural environment and that a further review is carried out of those projects, programs, and activities that are found to have probable significant adverse effects, and the results thereof taken into account ....

They therefore conclude that, by the phrase "any department, board or agency of the Govern ment of Canada" (which is, in part, how "depart- ment" is defined in section 2), Parliament intended to cover all instrumentalities through which the executive power of that Government might be exercised even to the inclusion of the Governor in Council. A contrary interpretation would be incon sistent with the purpose of the enactment, it was said, and a large range of federal decision making would be excluded from the requirement of envi ronmental assessment and review notwithstanding Parliament's intention that all new federal pro posals, undertakings and activities be so examined.

In this contention, it seems to me, the Court is confronted with an underlying political argument as to the desirability of universal environmental protection, a matter which, in the absence of statu tory or other authority, is beyond the capacity of a court to judge.

In addition, I do not find the legislative inten tion as manifest as painted, nor am I able to derive any assistance from recent decisions such as Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309

(T.D.), affirmed at [1990] 2 W.W.R. 69 (F.C.A.); Canadian Wildlife Federation Inc. et al. v. Canada (Minister of the Environment) and Sas- katchewan Water Corp. (1989), 31 F.T.R. 1 (F.C.T.D.); Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18 (C.A.); and Naskapi-Montagnais Innu Assn. v. Canada (Minister of National Defence), [1990] 3 F.C. 381 (T.D.).

It was common ground that the phrase "the Government of Canada" was used in the sense of the executive branch of government. In the course of argument there was some discussion as to whether the Governor in Council is co-extensive with the executive, so that it would be inconsistent to refer to him as a department, board or agency of the executive.

I am, however, satisfied that the Governor in Council is not to be identified with the executive power as such. Section 9 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] provides that "The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen." Section 10 makes it apparent that the Governor General is the "Chief Executive Officer

. carrying on the Government of Canada on behalf and in the Name of the Queen". Then by section 11 the Governor General is empowered to choose and summon persons to be members of the Queen's Privy Council for Canada "to aid and advise in the Government of Canada". Section 13 establishes that the Governor General in Council (now more usually called the Governor in Council) comprises "the Governor General acting by and with the Advice of the Queen's Privy Council for Canada". Beyond that, the operation of the execu tive is shrouded in the conventions of responsible government. What is clear is that, in the words of Professor Peter W. Hogg, Constitutional Law of Canada, 2nd ed. 1985, Toronto: Carswell Com pany Limited, at page 195, "The whole Privy Council meets very rarely, and then only for ceremonial occasions", and that it is the Cabinet, in form merely a Committee of the Privy Council,

which in reality constitutes the "Council" advising the Governor General at any particular time.'

The Governor in Council does not, then, in law encompass the whole of the executive power. Executive authority is vested in the Governor Gen eral under the Queen, and he or she retains reserve or personal powers, such as the choice of a prime minister. Even if one can say, with Professor Hogg, at page 195, that "The cabinet . . . is in most matters the supreme executive authority", even its de facto authority is not the whole of the executive power.

In my view, there is nothing illogical in thinking of the Governor in Council, i.e. the Governor General acting by and with the advice of the Cabinet, as the first emanation of executive power. In that sense, he could be said to be a "board or agency of the Government of Canada". However, the question, as I see it, is not whether he could be so called, but whether that is the sense in which he described himself in the Guidelines Order. I do not believe that to be the case.

Not only would that be a strained usage to employ if he intended to include himself, but we are here, it seems to me, close to the heart of Cabinet government, and it would require clear language indeed to establish that the Governor in Council is included in "department, board or agen cy". The decision to cut back railway passenger service was, after all, a budgetary decision, and budgets are matters over which Parliament divides on motions of non-confidence. The impugned Order in Council is effectively the implementation of that budgetary decision of April 1989. It may be thought to be highly desirable that such orders in council be submitted to environmental assess ment, but that sort of desirability can be measured only by considerations of policy beyond the pur view of the courts. Courts are confined to the four corners of the enactment. In my view the enact

' Similar analyses are found in Dussault and Borgeat, Administrative Law—A Treatise, 2nd ed., 1985, Halliday, "The Executive of the Government of Canada" (1959), 2 Can. Pub. Admin. 229, Mallory; The Structure of Canadian Gov ernment, 1971, Dawson, The Government of Canada, 5th ed. by N. Ward, 1970.

ment here, however broadly taken, does not reveal any legislative intention to submit all initiatives, undertakings or activities of the Governor in Council to environmental assessment.

This interpretation is, I believe, supported by the parent Act, the Department of the Environment Act, under section 6 of which the Guidelines Order was made and from which the phrase "depart- ment, board or agency" was derived. Subsection 4(1) of that Act begins as follows:

4. (1) The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada ....

This provision appears to equate the phrase "department, board or agency of the Government of Canada," not with the Governor in Council, but rather with a single governmental minister or min istry. A similar conclusion can be drawn from subsection 5(c) where the Minister is directed to advise "the heads of departments, boards and agencies" on environmental matters. Section 6, the actual empowering provision for the Guidelines Order, is perhaps even stronger, in apparently distinguishing the Governor in Council from departments, boards and agencies:

6. For the purposes of carrying out his duties and functions related to environmental quality, the Minister may, by order, with the approval of the Governor in Council, establish guide lines for use by departments, boards and agencies of the Government of Canada and, where appropriate, by corpora tions named in Schedule III to the Financial Administration Act and regulatory bodies in the exercise of their powers and the carrying out of their duties and functions. [Emphasis added.]

All in all, I find the conclusion compelling that, on the language used, the Guidelines Order does not require the compliance of the Governor in Council.

The issue which remains is as to the necessity of compliance with the Order by the Minister of Transport. There is no question, of course, that Ministers of the Crown are legally obliged to comply with the EARP Guidelines Order: Friends of the Oldman River Society, supra. The Order

even provides for a division of responsibility where there are two or more initiating departments in respect of a proposal (section 9).

Although the impugned Order in Council states on its face that it was made on the recommenda tion of the Minister of Transport, and there were admissions in Parliament that the Minister was the initiating Minister (House of Commons Debates October 3, 1989, at page 4252; Minutes of Pro ceedings and Evidence of the Standing Committee on Transport, October 16, 1989, at page 18:36), the contention of the respondents was that the Minister was not in law an initiating department but simply in the position of giving advice or making recommendations to the real decision- making authority, the Governor in Council. It was said that, absent decision-making authority, a department is not an "initiating department" as that term is defined in the Guidelines Order, and therefore not legally obligated to apply the process set out.

On behalf of the appellants the argument was put that, when the Governor in Council deals with a proposal on the basis of a recommendation of a Minister, that Minister has exercised a power of decision in respect of that proposal, and that because the Minister in the case at bar had exer cised a decision-making authority on behalf of the Government of Canada in respect of the VIA cuts he was bound to apply the EARP Guidelines Order. The case cited as authority for this proposi tion was Re Abel et al. and Advisory Review Board (1980), 31 O.R. (2d) 520, a decision of the Ontario Court of Appeal. Arnup J.A. there held for the Court that an advisory review board, estab lished under the Ontario Mental Health Act, R.S.O. 1970, c. 269, to advise the Lieutenant-Gov ernor in Council on the continued detention of patients in criminal psychiatric facilities, made decisions which brought into play the requirement that it act fairly.

However, in my view Re Abel cannot assist the appellants in the present context. Whatever the requirements of procedural justice in relation to an advising person or board, they cannot determine the status of that adviser as a decision-maker for the purposes of this Guidelines Order. Decision- making is not defined in the Order, but in this case

at least, where the action is taken under section 64 of the National Transportation Act, 1987, the decision-maker can only be the Governor in Coun cil. I believe the learned Motions Judge was entire ly right when he disposed of this issue in one pithy sentence (Appeal Book, at page 156 [reasons for order at page 5]):

In the light of my decision on the interpretation of the Guidelines Order, it is not necessary for me to consider the respondents' further arguments as to why certiorari should not be granted.

The appeal should therefore be dismissed with costs.

HUGESSEN J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

DEcARY J.A.: I have had the advantage of reading the reasons for judgment prepared by my brother MacGuigan J.A.. While I would dispose of the matter in the way he suggests, I follow a different route than his. The facts have been recit ed in his reasons and I need not repeat them here. He has also quoted the principal provisions of the EARP Guidelines Order ("Guidelines"). As my reasons are primarily based on the provisions of the Department of the Environment Act ("Act"), I find it useful to quote in full the relevant sections of that Act.

POWERS, DUTIES AND FUNCTIONS OF THE MINISTER

(a) the preservation and enhancement of the quality of the natural environment, including water, air and soil quality;

(b) renewable resources, including migratory birds and other non-domestic flora and fauna;

(d) meteorology;

(e) notwithstanding paragraph 4(2)(/) of the Department of National Health and Welfare Act, the enforcement of any rules or regulations made by the International Joint Commis sion, promulgated pursuant to the treaty between the United States of America and His Majesty, King Edward VII, relating to boundary waters and questions arising between the United States and Canada, in so far as they relate to the preservation and enhancement of the quality of the natural environment;

(J) the coordination of the policies and programs of the Government of Canada respecting the preservation and enhancement of the quality of the natural environment;

(g) national parks; and

(h) national battlefields, historic sites and monuments.

(2) The powers, duties and functions of the Minister also extend to and include such other matters, relating to the environment and over which Parliament has jurisdiction, as are by law assigned to the Minister.

5. The Minister, in exercising his powers and carrying out his duties and functions under section 4, shall

(a) initiate, recommend and undertake programs, and coor dinate programs of the Government of Canada that are designed

(i) to promote the establishment or adoption of objectives or standards relating to environmental quality, or to con trol pollution,

(iii) to provide to Canadians environmental information in the public interest;

(b) promote and encourage the institution of practices and conduct leading to the better preservation and enhancement of environmental quality, and cooperate with provincial gov ernments or agencies thereof, or any bodies, organizations or persons, in any programs having similar objects; and

(c) advise the heads of departments, boards and agencies of the Government of Canada on all matters pertaining to the preservation and enhancement of the quality of the natural environment.

GUIDELINES BY ORDER

AGREEMENTS

7. The Minister may, with the approval of the Governor in Council, enter into agreements with the government of any province or any agency thereof respecting the carrying out of programs for which the Minister is responsible.'

Interpretation of the Act and of the Guidelines The Act

From the wording of these provisions, the powers, duties and functions of the Minister of the Environment extend to matters relating to the coordination of the policies and programs of the Government of Canada respecting the preservation and enhancement of the quality of the natural environment; 6 in exercising these powers and carrying out these duties and functions the Minis ter shall initiate, recommend and undertake pro grams, and coordinate programs of the Govern ment of Canada that are designed to ensure that new federal projects, programs and activities are assessed early in the planning process for potential adverse effects on the quality of the natural environment; 7 and for the purpose of carrying out his duties and functions related to environmental quality, the Minister may establish guidelines for use by departments, boards and agencies of the Government of Canada. 8

As I read these various sections, it seems to me that the intention of Parliament was to ensure that all new projects, programs and activities of the Government of Canada_ would be subject to early assessment in the planning process and, in order to so ensure, that guidelines be established for the use of all departments, boards and agencies. The pur pose of the Act is to apply the early assessment to all new federal projects, and the means to achieve this purpose are the Guidelines. I note that section

5 Note: Counsel for the parties did not rely on the Canadian Environmental Protection Act, which was assented to on June 28, 1988 (S.C. 1988, c. 22; R.S.C., 1985, (4th Supp.), c. 16, and which contains a provision, section 53, similar to section 6 of the Department of the Environment Act except with respect to the words "by order" which have been deleted. Section 146 of the Act repeals section 6 of the Department of the Environ ment Act, but that section has not yet come into force. The Guidelines, therefore, have been interpreted solely in the con text of the Department of the Environment Act under which they were formally established.

6 Paragraph 4(1)(f).

'Subparagraph 5(a)(ii) (emphasis added).

Section 6.

6 does not provide that the Guidelines apply to departments; it provides that the Guidelines are for use by departments, which confirms in my opinion the distinction to be drawn between the purpose and effect of the Act, defined in sections 4 and 5, and the means established to achieve the purpose and effect, defined in section 6.

The Act, by its wording, is in my view binding on the Government of Canada and, therefore, on the Governor in Council and the Cabinet for in modern times

In fact, as a result of constitutional conventions, the real executive power belongs, at the federal level, to a committee of the Privy Council—the Cabinet .... 9

The words "federal projects, programs and activi ties" [underlining added] as used in subparagraph 5(a)(ii) of the Act cannot but include projects, programs and activities which are said to be those of the Government of Canada, whether the Gov ernment of Canada acts through the Governor in Council or through a specific Minister.

Should there be any doubt as to whether or not the Act is expressly binding on the Government of Canada, its intent and context point to at least a necessary implication that it is binding.

In Province of Bombay v. Municipal Corpora tion of the City of Bombay and Another, Lord du Parcq expressed the view that:

Their Lordships prefer to say that the apparent purpose of the statute is one element, and may be an important element, to be considered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its benificent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound. Their Lordships will add that when the court is asked to draw this inference, it must always be remembered that, if it be the intention of the legislature that the Crown shall be bound, nothing is easier than to say so in plain words. J°

and in R. v. Ouellette, Mr. Justice Beetz was of the view that section 16 [R.S.C. 1970, c. C-34] (now section 17 [R.S.C., 1985, c. I-21]) of the Interpretation Act which provides that no enact

9 Dussault and Borgeat, Administrative Law—A Treatise,

1985, Vol. I, at pp. 53 ff.

[1947] A.C. 58, at p. 63.

ment is binding on Her Majesty except as men tioned or referred to in the enactment,

... does not exclude the rule by which the various provisions of a statute are each interpreted in light of the others, and it is possible that Her Majesty be implicitly bound by legislation if that is the interpretation which the legislation must be given when it is placed in its context."

In this case it seems to me apparent from the terms of the Act that its beneficent purpose would be wholly frustrated if the Government of Canada were allowed to play with words and distinguish where Parliament did not between federal projects that are those of a specific Minister and federal projects that are those of Cabinet even acting in a legislative capacity. The Act addresses a most practical concern, the environment, and is intended by its own terms to protect the quality of the environment whenever a new federal project is planned. We should not interpret the Act as if it were a constitutional document nor seek to import into it constitutional nuances that create irrelevant ambiguities where none really exists when one looks at the plain words used and applies them to government machinery as it works in daily life. One cannot ignore that in modern administration, decisions are not planned, made and acted upon by the Governor in Council without the assistance of specific ministers and departments.

The practice of government, in Canada, is defined as follows by Peter Hogg:

When the ministers meet together as a group they constitute the cabinet ....

The cabinet, which does meet regularly and frequently, is in most matters the supreme executive authority .... The cabinet formulates and carries out all executive policies, and it is responsible for the administration of all the departments of government. It constitutes the only active part of the Privy Council, and it exercises the powers of that body. The Governor General does not preside over, or even attend, the meetings of the cabinet. The Prime Minister presides. Where the Constitu tion or a statute requires that a decision be made by the "Governor General in Council" (and this requirement is very common indeed), there is still no meeting with the Governor General. The cabinet (or a cabinet committee to which routine Privy Council business has been delegated) will make the decision, and send an "order" or "minute" of the decision to the Governor General for his signature (which by convention is automatically given). Where a statute requires that a decision be made by a particular minister, then the cabinet will make

H [1980] 1 S.C.R. 568, at p. 575.

the decision, and the relevant minister will formally authenti cate the decision. Of course a cabinet will be content to delegate many matters to individual ministers, but each minis ter recognizes the supreme authority of the cabinet should the cabinet seek to exercise it.

• •

It will now be obvious that in a system of responsible government there is no "separation of powers" between the executive and legislative branches of government. The head of the executive branch, the cabinet, draws its personnel and its power to govern from the legislative branch, the Parliament; and the cabinet controls the Parliament. 12

I think that the following excerpts from Fajgen- baum and Hanks' are applicable also to the Canadian context:

This legal personality of the executive government is repre sented by the Crown, by the Queen: that is, the law regards the government as a legal person and that person is the Queen. However, in this context the terms "the Crown" and "the Queen" have become depersonalized. The terms refer, not to the Queen in her personal capacity, but to the office of monarch or the institution of the monarchy. When we talk of the Crown in the context of Australian government in the late twentieth century, we refer to a complex system of which the formal head is the monarch. We do not refer to a replica of sixteenth century English government, where real power was vested in and exercised by the monarch personally. Rather, we mean that collection of individuals and institutions (ministers, public servants, a Cabinet, the Executive Council, a Governor or Governor-General, and statutory agencies) which exercise the executive functions of government.

The law sees these individuals and institutions as agents of the Crown, and a whole range of executive functions as acts of the Crown. Indeed, many important decisions and actions of government are announced and performed as if they were decisions and actions of the Queen. The declaration of war or peace, the signing of international treaties, the appointment of judges and Cabinet ministers, the summoning or dissolution of parliament and the promulgation of a host of regulations, rules and orders which direct and control many aspects of the community's affairs all of these are carried out as if they reflected the personal wishes of the Queen. And many other vital governmental functions, while not performed in the name of the Queen, are entrusted to ministers and public servants who act as servants of the Crown, not as private individuals when they perform the tasks committed to them.

• • •

[5.003] We must, of course, remember that this notion of the Crown as the personification of the government is largely a facade, a relic of medieval reality, retained in this more popul ist age because it is a convenient facade. The supposed power of the Queen is tempered, indeed controlled, by her principal

12 Constitutional Law of Canada, 2nd ed. (1985), at pp. 195, 196, 203 (footnotes omitted).

servants or ministers who in turn rely for their positions upon the tolerance and support of their political colleagues within and outside of parliament. The formal legal rules, to which the courts, in their sentimental conservatism, have adhered, are very much qualified by conventions which determine how the legal powers are to be exercised. 13

Therefore, in my view, when an Act of Parlia ment refers to "federal projects", it would require express words to exclude from these projects those projects so-called planned, made and acted upon by the Governor in Council.

The Guidelines

I now turn to the Guidelines.

The validity of the Guidelines was not attacked by the appellants and I must therefore assume that they are valid and that they respect the limits set out by the enabling statute. This assumption is one of the major difficulties of the present case because we are confronted with the task of inter preting a presumably valid regulation that may well be, if my brother MacGuigan's interpretation is correct, at variance with its enabling statute as I interpret it. If, however, there is an interpretation of the Guidelines which is more in accordance with the Act, that interpretation should be favoured for regulations, as much as their enabling statute are "deemed remedial" and must be given "such fair, large and liberal construction and interpretation as best ensures the attainment of [their] objects", to use the words found in section 12 of the Interpre tation Act [R.S.C., 1985, c. 1-21] which applies, because of the definition of "enactment" and "regulation" in section 2, to acts as well as to regulations and orders. As Driedger puts it,

The intent of the statute transcends and governs the intent of the regulations. 14

The Guidelines apply, under section 6, to "any proposal (a) that is to be undertaken directly by an initiating department; (b) that may have an envi ronmental effect on an area of federal responsibili ty" and section 2 defines "proposal" as including "any initiative, undertaking or activity for which the Government of Canada has a decision making

13 Fajgenbaurn and Hanks' Australian Constitutional Law, 2nd ed., (1980), at pp. 339-340.

14 Construction of Statutes, 2nd ed. (1983), at p. 247.

responsibility". I underlined the words "proposal" and "any" and the expressions "Government of Canada" and "area of federal responsibility" to illustrate that the Guidelines, in accordance with the Act, are meant to apply to any activity for which the Government of Canada, and not a spe cific department, Minister or body, has a decision- making responsibility. As I understand the Guide lines, they apply whenever, on behalf of the Gov ernment of Canada, a decision-making responsibil ity is involved which has environmental implications.

The emphasis has been put by the learned Trial Judge and by the respondents on the words "ini- tiating department" which relate to the adminis tration of the Guidelines. I would rather put the emphasis on the words "proposal" and "Govern- ment of Canada", which relate to the "applica- tion" of the Guidelines. There is no requirement, in the definition of "proposal", that it be made by an initiating department within the meaning of the Guidelines. ' 5 The intention of the drafter seems to be that whenever there is an activity that may have an environmental effect on an area of federal responsibility and whoever the decision-maker may be on behalf of the Government of Canada, be it a department, a Minister, the Governor in Council, the Guidelines apply and it then becomes a matter of practical consideration, when the final decision- maker is not a department, to find which depart ment or Minister is the effective original decision- maker or the effective decision-undertaker, for there is always a department or a Minister involved "in the planning process" and "before irrevocable decisions are taken" 16 or in the "direct undertaking" of a proposal." In my view, the Guidelines once they apply to a proposal, are to be complied with by the department(s) or Minis ter(s), who for all practical purposes, is or are responsible for the planning and undertaking of the proposal. Where, as here, the Governor in Council steps in at the last moment to make a decision "on the recommendation of the Minister of Transport", there is a "proposal" for the pur-

15 See paragraph 6(b).

16 Section 3.

17 See paragraph 6(a)

poses of the application of the Guidelines and the "initiating department" for the purposes of the administration of the Guidelines is admittedly the Department of Transport. To hold otherwise would, in my view, defeat the purpose of the Guidelines and of the Department of the Environ ment Act.

I note, as did my brother MacGuigan, that both the Minister of the Environment and the Minister of Transport took the position in the House of Commons and before the Standing Committee on Transport that the Guidelines applied to the VIA Rail reorganization and that the Department of Transport was the "initiating department". While these ministerial comments are not binding in law, they nevertheless indicate that for all practical purposes the Department of Transport considered itself, correctly in my view, as the "initiating department".

It is the Minister of Transport who announced "the federal government's decision concerning VIA's 5 year corporate plan", "informed members of the VIA board of directors of the government's new policy approach", "received representations from many Canadians", outlined "the govern ment's plan for a restructured rail passenger net work", said that "naturally the potential environ mental impact of any change to VIA formed an important part of my consideration of VIA's cor porate plan", "directed that the potential environ mental impact be examined carefully by my offi cials", and announced "the results of our study". is

It is the Minister of Transport who filed a document entitled "Process for discontinuance" ' 9 which contained the following explanation:

Parliament established those powers (in the National Transpor tation Act) * to assure that the government, rather than a regulatory body, would have ultimate responsibility and accountability.

18 Appeal Book, at pp. 19, 22.

19 Appeal Book, at p. 35.

* Editor's Note: The title of the Act should read National

Transportation Act, 1987.

Whatever may be the legal value of that docu ment, and I suspect there is none, it nevertheless confirms how little if any real "decision making authority" VIA had in fact with respect to the proposal.

Counsel for the respondents submitted at the hearing that if the Guidelines applied the "initiat- ing department" would be VIA. Such submission, in my view, is totally contradicted by the evidence I have just referred to. There was only one "initiat- ing department" in this whole affair, it was the Department of Transport; there was only one "decision making authority" for the purposes of the Guidelines, and it was the Minister of Trans port. While it is arguable that the final decision- making authority was in law the Governor in Council, there is nothing in the Guidelines as I read them in conjunction with the Act that imports a notion of "finality", not even of "legal- ity" in the expression "decision making authority".

I therefore fully agree with the appellants when they state that "when the Governor in Council deals with a proposal on the basis of a recommen dation of a Minister, that Minister has exercised a power of decision in respect of that proposal" and when they submit that "the Minister of Transport exercised a decision making authority on behalf of the Government of Canada in respect of the Via Rail cuts and was bound to apply the EARP Guidelines Order".

The Governor in Council is also, in my view, subject to the Guidelines even though he may not be an "initiating department" for the purposes of the Guidelines. If, in exercising its statutory powers under section 64 of the National Trans portation Act, 1987, the Governor in Council is making a proposal that may have an environmen tal effect on an area of federal responsibility, the Department of the Environment Act and the Guidelines apply to that proposal for it is an activity for which the Government of Canada has a decision-making responsibility. It then becomes by law and by regulation a condition precedent to the exercise of its statutory power that the Gover nor in Council ascertain itself that the initiating department complies with the Guidelines. As Mr.

Justice Estey put it in Attorney General of Canada v. Inuit Tapirisat of Canada et al.:

Respondents submit, alternatively, that the Guidelines do not apply to a decision to reduce the level of an undertaking or activity which has been ongoing prior to the coming into force of the Guidelines. I fail to see any merit in this proposi tion. Nothing in the Guidelines indicates that they would not apply to proposals reducing the level of existing undertakings or activities. The VIA Rail reorganization is a "new federal project, program and activity" within the meaning of subparagraph 5(a)(ii) of the Act and an "initiative, undertaking or activity" within the definition of "proposal" in the Guidelines. I note that the wording in the Guidelines is not similar to the wording in the Act but the meaning of the various expressions used appears to be the same and is quite far-reaching. The VIA Rail reorganization is also, as recognized by the Ministers involved, a proposal "that may have an environmental effect on an area of federal responsibility", even though minimal, within the meaning of paragraph 6(b).

Respondents also submit that, in any event, the appellants' interpretation of the requirements of the Guidelines is incorrect. I need not here inter pret these requirements, for the evidence is conclu sive that whatever was done was not done pursuant nor in relation to the Guidelines.

At the hearing, respondents argued that it would be a strange result if the Guidelines applied to the Governor in Council and did not apply, because of section 7, to corporations listed in Schedule D to the Financial Administration Act [R.S.C. 1970, c. F-10]. However strange that result might be, and it is not of my domain to comment on that, it derives not from the Guidelines but from the Act itself which, at section 6, provides that the Guide

20 [1980] 2 S.C.R. 735, at p. 748.

lines are for use by such corporations "where appropriate".

I take some comfort in my interpretation of the Act and the Guidelines in various decisions of this Court. In Friends of the Oldman River, my col league Mr. Justice Stone, speaking for the Court, referred to [at page 39] "the true and, indeed, very far-reaching impact of the Guidelines Order" and added [at page 39]:

The dam project to which the approval related fell squarely within the purview of paragraph 6(b) of the Guidelines Order as a "proposal ... that may have an environmental effect on an area of federal responsibility". This "proposal" resulted in the Department of Transport becoming the "initiating department" responsible as the "decision-making authority".

Commenting on the word "proposal", he went on to say [at page 44]:

Although the word "proposal" in its ordinary sense may mean something in the nature of an application, in the Guidelines Order it is a defined word which is used to encompass a scope far broader than its ordinary sense.

• • •

In such circumstances, if any "initiative, undertaking or activi ty" exists for which the Government of Canada has "a decision making responsibility" a "proposal" also exists.

With respect to the respective roles of the Minister of Transport and of the Minister of Fisheries and Oceans in the circumstances of that case, Mr. Justice Stone concluded [at page 48]:

... that the Minister of Fisheries and Oceans as the Minister responsible for the protection of fish habitat and fisheries resources in the Oldman River was required to play his full part under the Guidelines Order. It then remained for the Minister of the "initiating department", Transport, to grant or refuse the approval at the end of their review process. 21

In Can. Wildlife Fed. Inc. v. Can. (Min. of the Environment), 22 this Court held that the Guide lines Order was mandatory:

... the repeated use of the word "shall" throughout, and particularly in s. 6, 13 and 20, indicates a clear intention that

21 Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18 (C.A.).

22 [1990] 2 W.W.R. 69 (F.C.A.).

the Guidelines shall bind all those to whom they are addressed, including the Minister of the Environment himself. 23

In the Trial Division, Mr. Justice Cullen had held that:

At first glance it appears that the EARP Guidelines are for use only by departments, boards, agencies of the Government of Canada (see definition of "department" and "initiating depart ment" in the Order) and there is some merit to the respondent Minister's position that the Project is a provincial undertaking subject only to provincial regulations and guidelines. However, section 6 of the EARP Guidelines Order specifically provides that these guidelines shall apply to any proposal that may

have an environmental effect on an area of federal responsibil

i ty . 24

At page 328, he referred to the fact that the Minister was "a participant" in the project "(in that he issued the licence under the International

River Improvements Act)".

In Naskapi-Montagnais Innu Assn. v. Canada (Minister of National Defence), Madame Justice Reed expressed the following view [at page 392 F.C.]:

... I do not agree that because a proposal has been implicitly authorized by the Governor in Council, as a result of being the subject of an international agreement ... , it therefore falls outside the scope of the EARP Guidelines Order. I think counsel for the applicant's argument is correct, that one must look at the decisions and actions which have to be taken, by the relevant government department, to implement the treaty which was entered into. It is to those decisions and activities that the EARP Guidelines Order may attach. 25

The jurisprudence of the Federal Court appears to give the Guidelines a maximum of authority and efficiency and to interpret them in such a way as to make them adaptable to the reality of administrative machinery and applicable to all "participating" departments or Ministers at what ever stage their participation occurs. I consider that one must look at the actual decisions and actions which have taken place and which have to be taken by the relevant government departments to decide which department(s) is (are) at a specific point in time the de facto deciding authority with respect to a federal project or initiative and there fore bound by the Guidelines.

23 Per Hugessen J.A. at p. 71.

24 [1989] 3 F.C. 309, at pp. 322-323.

25 [1990] 3 F.C. 381 (T.D.).

Once a distinction is drawn between the effect and purpose of the Act and the means established to achieve such effect and purpose, and between the application and the administration of the Guidelines adopted pursuant to that Act, it becomes possible to conclude that the Order applied in this case to the Department of Trans port and constituted a condition precedent to the exercise of the statutory power vested in the Gov ernor in Council by the National Transportation Act, 1987.

Exercise of Discretion

It is settled law that the remedy of certiorari is discretionary in nature and that where the circum stances warrant, it may be denied to applicants who have otherwise established a legal entitlement to it. 26

The Trial Judge having found that the appel lants were not entitled to certiorari, need not address the issue of denial. I, on the contrary, need to.

The grounds on which a court may refuse to exercise its discretion to issue certiorari are well established. They include:

(1) unreasonable delay on the part of the appli cant seeking the remedy;

(2) the fact that the delay leaves nothing left for the court to prohibit;

(3) the fact that no useful purpose would be served by granting the remedy; and,

(4) the fact that to grant the order would be detrimental to good administration. 27

In the present instance, the Order in Council was enacted on October 4, 1989 and states on its face that the new passenger train network is to be in place as of January 15, 1990. On the same day as the Order in Council was enacted, the results of the environmental study on the impact of restruc-

26 Harelkin v. University of Regina, [1979] 2 S.C.R. 561.

27 See Jones and de Villars, Principles of Administrative Law (1985), at pp. 372-375; de Smith's Judicial Review of Administrative Action, 4th ed., at pp. 422-424.

turing were announced to the public in a summary form; they were to be published in their totality on October 11, 1989. Prior to October 4, 1989, the Minister of Transport had for several months received representations from a wide range of citi zens and organizations, and there is no record that the appellants made any such representations. The House of Commons Standing Committee on Transport held public meetings and submitted its report on November 8, 1989; none of the appel lants testified at the public hearings, but Mr. Angus was a member of that Committee and the Federation of Canadian Municipalities may be said to have represented, amongst others, the City of Thunder Bay, although we do not know if these representations concerned environment as well as cuts in services. The Committee requested that the Government table a comprehensive response, but that response never came. It is worth mentioning that the Committee recommended a moratorium on the announced service cuts to VIA Rail. The appellants served the respondents with their application attacking the validity of the Order in Council on January 9, 1990 returnable January 12, 1990.

In their affidavit material, the appellants pro vided no explanation as to why the application had not been filed in a more timely fashion. The affidavit was signed by only one of the applicants, Mr. Angus; it did not contain the resolution of the City Council of the Corporation of the City of Thunder Bay authorizing the City to participate in the proceedings, so that we do not know what was the specific interest of that City in the proceedings; it referred in passing to the other appellant, Green- peace Canada, the activities of which I have no judicial knowledge, in these words:

I am informed by John Bennett, an official of Greenpeace Canada, and do verily believe that Greenpeace Canada has also approved participation in these proceedings."

While they did file their notice of appeal on January 15, 1990, the appellants did not file their application for an expedited hearing of their appeal until February 23, 1990. In an affidavit filed in support of the latter application, one of the appellants recognized that the process of imple menting the reduction in the VIA Rail network

28 Appeal Book, at p. 5.

commenced on January 15, 1990 with the elimina tion of certain services and the lay-off of employees, and that the disposition of equipment and rolling stock would severely impede VIA's ability to operate the discontinued services should the Order in Council be set aside.

In this case, with some regret, I have reached the conclusion that I should exercise my discretion and deny certiorari for a series of grounds which, taken individually, might not have led me to that conclusion but which, combined with each other, produce a strong case against the appellants.

The delay, however short and negligible, remains unexplained and while I would not have denied certiorari on that sole ground, I find that total failure to explain even through a short affida vit the reasons for the delay forces the Court to speculate as to why applicants waited until the last possible moment to file their proceedings and speculations of that type are not the proper domain of the courts. Applicants who do not bother to explain are courting disaster.

The concerns of the appellants are also mostly unexplained. While I would not require applicants seeking a certiorari order to explain in full detail why they are seeking such a remedy, I would at least expect more indications than those found in the affidavit and supporting material. In the case at bar, as previously noted, the appellants are not known to have expressed their concerns when the occasion arose; the appellant City has not filed the resolution of its Council authorizing the proceed ings, so that we have no idea as to the grounds of the intervention which was formally authorized only the day preceding its filing in Court; the appellant Greenpeace Canada is only referred to in passing in Mr. Angus' affidavit. I would be forced again, therefore, to speculate about the concerns of the appellants.

More importantly, the evidence filed by the appellants does not show nor intend to show nor suggest even prima facie that had the Guidelines

been complied with, the conclusion of the report tabled in the House of Commons might have been different. The Standing Committee on Transport, of which the appellant Angus was a member, did not even make any reference to the Guidelines in its report criticizing the proposal. There is nothing in the file which points if only prima facie to an immediate and direct effect of the proposal on the quality of the environment as opposed, for exam ple, to the proposals considered in the Oldman River case and in the Canadian Wildlife case. In the Oldman River case, my colleague, Mr. Justice Stone, said that [at page 34]:

One need not look far to see that construction and operation of the Oldman River dam and reservoir may have an environ mental effect on areas of federal responsibility. At least three such areas would appear to be so affected, namely, fisheries, Indians and Indian lands. In my view, the evidence speaks both loudly and eloquently that these particular areas of federal responsibility might, indeed, be adversely affected by the pres ence of dam and reservoir.

In this instance, the least I can say is that there is no loud nor eloquent evidence and while I need not and should not pre-judge what the results of an EARP review would be, I am of the view that before granting certiorari on the grounds that no such review was made when the conclusion of the review is not even binding on the relevant Minis ter, I should have before me some evidence to the effect that the results might have been different. As Madame Justice Reed noted in denying orders of mandamus and certiorari in the Naskapi- Mon- tagnais case [at pages 406-407 F.C.]:

If there was clear evidence that the effect on the environment of the on-going and increasing low level flying activity was extensive and damaging, that would be a factor which would lead a court to grant the order sought. But, there was no such clear evidence placed before me. There is a lot of speculative and hypothetical comment set out in some of the material which was filed but no concrete evidence ... the absence of any clear and unequivocal evidence respecting significant environ mental damage is a factor that is relevant in refusing the order sought.

Courts should be reluctant, in exercising discre tionary powers in cases where the alleged illegality is the failure to order a review which, whatever its conclusion, would not be binding, to interfere with major public undertakings at the last possible

moment at the request of applicants who have failed to explain why they have acted so late, who have failed to indicate at least in a general way their concerns or those of the public and who have failed even to suggest that what they are seeking might serve some useful purpose. Courts should not exercise their discretion to grant certiorari orders in a vacuum or on mere speculation as to who the applicants are, as to what they want and as to what purpose will be served by the granting of the order.

Using therefore my discretionary powers and without condoning in any way what I consider to be an unlawful precedent by the Governor in Council and by the Minister of Transport, I would in the very special circumstances of this case deny certiorari and dismiss the appeal, without costs.

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