T-3188-90
The Pulp, Paper and Woodworkers of Canada
Local 8, Kenneth Jupe, on his own behalf and on
behalf of all members of the PPWC, Local 8
(Applicants)
v.
Minister of Agriculture, Pesticides Directorate of
Agriculture Canada (Respondent)
and
Buckman Laboratories of Canada Ltd.
(Intervenor)
INDEXED AS: PULP, PAPER AND WOODWORKERS OF CANADA
LOCAL 8 V. CANADA (MINISTER OF AGRICULTURE) (T.D.)
Trial Division, Martin J.—Vancouver, May 30;
Ottawa, November 4, 1991.
Judicial review — Prerogative writs — Certiorari — Appli
cation to quash registration of pesticide under Pest Control
Products Regulations, ss. 13, 18 — Use of pesticide discontin
ued but registration extended — Whether union lacking stand
ing and application moot — Live controversy still existing —
Minister entitled to act through departmental officials under
Regulations, s. 18 — Government official failing to consider
whether information provided to Minister sufficient to enable
pesticide to be properly evaluated and whether use of same
unacceptable risk to public health — Unreasonable . findings by
official based on previous registrations and absence of change
in active ingredient — In circumstances, Minister having no
authority to cause pesticide to be registered — Doctrine of
legitimate or reasonable expectation applicable.
Hazardous products — Anti-sapstain product used in lumber
industry — Application for certiorari resulting from complaints
union members suffering ill effects due to use of product
Case not moot as use discontinued but registration extended —
Live controversy still existing between parties — Pest Control
Products Act designed to protect public health against poten
tially dangerous control products — Agriculture Minister lack
ing power to register product where departmental official's
evaluation inadequate.
This was an application for certiorari to quash the registra
tion of the pesticide Busan 30WB made under sections 13 and
18 of the Pest Control Products Regulations. This application
was triggered by numerous complaints made by the applicant
union whose members claimed to have suffered ill effects
resulting from the use of this product in 1988. Manufactured
by the intervenor, Buckman Laboratories of Canada Ltd.,
Busan 30WB is an anti-sapstain product used in the lumber
industry to prevent discoloration in non-kiln dried wood
caused by fungi. Although its use was discontinued as of May
6, 1991, its registration is still in force and has in fact been
extended to December 31, 1995. As preliminary matters, the
respondent raised the issues of standing of the applicant union
and whether the application was moot in that the pesticide was
no longer in use. The applicants argued that the Minister of
Agriculture exceeded his jurisdiction in causing the control
product Busan 30WB to be registered.
Four issues had to be addressed: 1) whether the union had
standing; 2) whether the application was moot; 3) whether
there had been an illegal delegation of a quasi-judicial or dis
cretionary decision-making power to grant pesticide registra
tion and 4) whether the Minister exceeded his jurisdiction in
failing to consider the sufficiency of the information necessary
for evaluating the pesticide or whether its use would lead to an
unacceptable risk of harm to the public, in making those deci
sions before receiving the information required to make them
in a reasonable manner, and in making those decisions in the
absence of consultation with other federal and provincial
authorities.
Held, the application should be granted.
I) There was no merit in the argument that the union is a
legal entity only for the purposes of the British Columbia
Industrial Relations Act and since these proceedings are not
under that Act, it cannot be considered as a legal entity for the
purposes of standing. The status of unions as legal entities
capable of suing and being sued was put to rest long ago by the
Supreme Court of Canada which determined that they were.
2) The doctrine of mootness and its consequences was can
vassed recently by the Supreme Court of Canada which stated
that a case is moot when no present live controversy exists
which affects the rights of the parties. And there is no live con
troversy if the sub-stratum of the litigation has disappeared. In
the present case, the pesticide being still registered at the time
of the hearing and registration having been extended to
December 31, 1995, there was a live controversy affecting the
rights of the parties since it can legitimately be used by the
employer at any time prior to that date if it chooses to do so.
To dismiss this application on the ground of mootness could
result in the employer using the pesticide once again and
breathing life into a controversy which, according to the
respondent, is dead. The controversy is not over the use or
non-use of the pesticide by any particular employer but
whether it should have been registered in the first instance.
Because there still exists a live controversy between the par
ties, the matter cannot be said to be moot.
3) The distinction between the functions of the Minister and
the Director in the registration process under sections 13 and
18 of the Regulations does not necessarily mean that the Min
ister must address his mind personally to the matters upon
which his opinion is required. In forming the opinion required
by section 18, the Minister is entitled to act through his depart
mental officials. That is not to say that the opinions as to the
sufficiency of the evidence and the acceptability of risk of
harm to the public need not be addressed but only that they
need not be addressed by the Minister personally. As nothing
in the legislation or Regulations would expressly or implicitly
prohibit the exercise of the discretionary powers vested in the
Minister by his departmental organization and as these powers
are administrative in nature, they may properly be exercised by
those who did in fact exercise them.
4) In causing the control product Busan 30WB to be regis
tered, the Minister exceeded his authority in three different
ways. First, he failed to address his mind to the first step of the
registration process, namely to determine the sufficiency of the
information so as to permit the product's evaluation or assess
ment. The respondent, through its departmental officer, Clif-
ford Ralph, could not conclude that, because the chemical
TCMTB was the active ingredient of two other anti-sapstain
products, Busan 1030 and Busan 30, which had already been
registered, and therefore already assessed or evaluated, it was
pointless to re-assess or re-evaluate Busan 30WB, the only sig
nificant change being the substitution of a water base for petro
leum as used in the other two pesticides, which substitution did
not increase the risk of harm. Ralph was not entitled to rely
upon the previous registrations as establishing the sufficiency
of the information for the purpose of assessing or evaluating
Busan 30WB. Because he did not address the question •of the
sufficiency of the information which was a condition precedent
to the exercise of the Minister's discretion as to whether to reg
ister the control product, the Minister exceeded his authority in
causing that control product to be registered.
Moreover, even if the Minister addressed his mind to the
appropriate question, he nevertheless exceeded his authority in
exercising his discretion to cause Busan 30WB to be registered
because the sufficiency decision was patently in error. Ralph
knew or ought to have known that in order to properly assess
or evaluate Busan 30WB in 1985 or in 1988, when registration
took place, a complete data package would be required. Like
wise he knew or ought to have known that when TCMTB had
been assessed or evaluated for the registration of Busan 30 or
Busan 1030, it was assessed or evaluated on the basis of infor
mation provided which was insufficient to enable a proper
assessment or evaluation of TCMTB in 1988. Ralph therefore
could not reasonably have concluded that the information pro
vided in relation to the registration of Busan 30WB was suffi
cient, in 1988, to enable a proper evaluation of the product to
be made. The Pest Control Products Act was designed to pro
tect the health of the general public from the impact of control
products that may be dangerous. That purpose was also
reflected in the Registration Guidelines and in a pamphlet
issued by Agriculture Canada in 1985 and entitled Pesticides
in Perspective.
Finally, the applicants were entitled to invoke the doctrine
of legitimate or reasonable expectation as outlined by the Fed
eral Court of Appeal in Bendahmane v. Canada (Minister of
Employment and Immigration). Agriculture Canada's under
taking to have Health and Welfare participate in the decision-
making process of ensuring the safety and effectiveness of a
pesticide before it was made available to the public created in
the applicants a legitimate or reasonable expectation that this
procedure would be followed. The mere request for Health and
Welfare's views and comments did not amount to compliance
with that procedural undertaking. In registering the pesticide
without considering those views, Agriculture Canada denied
the reasonable expectation of the applicants that Health and
Welfare would be included in the decision-making process.
Therefore, the Minister exceeded his authority or acted without
authority in registering Busan 30WB in the absence of Health
and Welfare's participation.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46.
Industrial Relations Act, R.S.B.C., 1979, c. 212 (as am.
by S.B.C. 1987, c. 24, s. I), s. 147.
Pest Control Products Act, R.S.C., 1985, c. P-9, ss. 4, 5.
Pest Control Products Regulations, C.R.C., c. 1253, ss.
9(2)(a), 13(1) (as am. by SOR/88- I 09, s. 6(1)), (2),(3)
(as am. idem, s. 6(2)), 18(a) (as am. idem, s. 8),
(b),(c),(d), 19.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Borowski v. Canada (Attorney General), [1989] I S.C.R.
342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75
Sask. R. 82; 47 C.C.C. (3d) I; 33 C.P.C. (2d) 105; 38
C.R.R. 232; 92 N.R. 110; The King ex rel. Tolfree v. Clark
et al., [1944] S.C.R. 69; [1944] 1 D.L.R. 495.
APPLIED:
International Brotherhood of Teamsters v. Therien, [ 1960]
S.C.R. 265; (1960), 22 D.L.R. (2d) 1; 60 CLLC 15,273;
Ahmad v. Public Service Commission, [1974] 2 F.C. 644;
(1974), 51 D.L.R. (3d) 470; 6 N.R. 287 (C.A.); Monsanto
Canada Inc. v. Minister of Agriculture (1986), 8 C.P.R.
(3d) 517; I F.T.R. 63 (F.C.T.D.); Bendahmane v. Canada
(Minister of Employment and Immigration), [1989] 3 F.C.
16; (1989), 61 D.L.R. (4th) 313; 26 F.T.R. 122 (note); 8
Imm. L.R. (2d) 20; 95 N.R. 385 (C.A.).
AUTHORS CITED
Pesticides in Perspective, 5206/E, Agriculture Canada,
1985.
Registration Guidelines, January 5, 1984.
COUNSEL:
Judith C. Lee and Clark M. Roberts for appli
cants.
Gunnar O. Eggertson for respondent.
Dale B. Pope and Donald L. Richards for inter-
venor.
SOLICITORS:
Nadler, Roberts & Lee, Vancouver, for appli
cants.
Deputy Attorney General of Canada for respon
dent.
Farris, Vaughan, Wills & Murphy, Vancouver,
for intervenor.
The following are the reasons for order rendered in
English by
MARTIN J.: The applicants move for a writ of certi-
orari to quash the October 19, 1988 decision and cer
tificate granting registration of the pesticide Busan
30WB made pursuant to sections 13 [as am. by
SOR/88-109, s. 6(1),(2)] and 18 [as am. by SOR/88-
109, s. 8] of the Pest Control Products Regulations
[C.R.C., c. 1253] (the "Regulations"). The applicants
also move for the same writ to set aside the prelimi
nary decision of January 6, 1987 to grant registration
of the said pesticide subject to receipt of an approved
label.
The alternative grounds for the motion are that, in
granting registration of the pesticide, the Minister of
Agriculture exceeded his jurisdiction in that he:
a) failed to consider whether
(i) the information provided was sufficient to
enable the pesticide to be assessed or evalu
ated, or
(ii) its use would lead to an unacceptable risk of
harm to the public health;
b) made a patently unreasonable finding that
(i) the information provided was sufficient to
enable the pesticide to he assessed or evalu
ated, and
(ii) its use would not lead to an unacceptable risk
of harm to the public health
before he had received the information which
would permit him to make those findings;
c) he failed to follow the registration procedures set
out in
(i) subsection 13(1) and section 18 of the Regu
lations;
(ii) the registration guidelines, and
(iii) his public statements
to the effect that he would consult with and
involve, in his decision to register or not to regis
ter the pesticide, Health and Welfare Canada and
its provincial counterpart prior to making his
decision.
In the further alternative the applicants say that, by
permitting the registration officer to make the deci
sion to grant pesticide registration without an express
or implied authority to do so, there has been an ille
gal delegation of a quasi-judicial or discretionary
decision-making power beyond the jurisdiction of the
Minister.
This application has been precipitated as the result
of approximately 100 complaints made by members
of The Pulp, Paper and Woodworkers of Canada
Local 8 who claim to have suffered ill effects as a
result of their use of the pesticide Busan 30WB dur
ing the period from January to May of 1988. The
complaints were of headaches, nose bleeds, stomach
upsets, chemical burns, dizziness, nausea, soreness to
neck and throat and eye irritations which had not
occurred prior to the time that Busan 30WB had been
used.
Prior to launching this application, counsel for the
applicants brought to the attention of the Minister the
nature of the complaints on three separate occasions
and requested the Minister to take appropriate action
to cancel or suspend the registration of the pesticide
and to prosecute the intervenor for permitting the
pesticide to be used prior to its registration.
The Minister did not act as requested but instead,
as far as I am able to determine from the material
placed before me, he appointed a group of parties
interested in the matter, the multi-stakeholder forum,
to recommend to him improvements to the existing
federal pesticide regulatory system and invited the
applicants to participate in that process. As the
response did not, in the view of the applicants,
address their particular concerns relating to what they
regarded as the wrongful original registration and
extended registration to December 31, 1995 of a pes
ticide which they considered dangerous to their
health, they caused these proceedings to be com
menced.
At the commencement of the proceedings, counsel
for the respondent sought to raise, as preliminary
matters, the issues of standing of the applicant union
and whether the application was moot. Rather than
address these issues as a preliminary matter, reserve
my decision and adjourn argument on the merits of
the application to a later date, I directed counsel to
incorporate, as part of their arguments on the merits
of the application, their arguments on these two
issues as well so that the matter could be disposed of
in a single hearing and decision.
With respect to the issue of standing, counsel for
the respondent seeks to exclude the applicant, The
Pulp, Paper and Woodworkers of Canada Local 8, on
the grounds that it is the local which claims standing
and not the union and that a union, whether a local of
the union or the union itself, derives its existence as a
legal entity from section 147 of the Industrial Rela
tions Act [R.S.B.C., 1979, c. 212 (as am. by S.B.C..
1987, c. 24, s. 1)], which provides as follows:
147. Every trade union and every employers' organization is
a legal entity for the purposes of this Act.
Counsel submits that as the applicant union is a
legal entity only for the purposes of that Act it is not
otherwise a legal entity. Furthermore he says that as
these proceedings are not under the Industrial Rela
tions Act, the applicant union cannot be considered as
a legal entity for the purposes of standing in these
proceedings.
I see no merit in that argument. In my view the
status of unions, locals or otherwise, as legal entities
capable of suing and being sued was put to rest long
ago by the Supreme Court of Canada in International
Brotherhood of Teamsters v. Therien, [1960] S.C.R.
265, which determined that they were. It follows that
the applicant union does not lack standing on this
basis.
Counsel for the respondents also submitted that
these proceedings are moot and should not be heard
on the basis that the genuine interests of the applicant
Kenneth Jupe and the members of the applicant, The
Pulp, Paper and Woodworkers of Canada, Local 8,
are founded upon their having been exposed and are
still being exposed to the alleged toxic effects of
Busan 30WB in their workplace. As the use of that
pesticide has been discontinued as of May 6, 1991,
counsel for the respondent submits that neither Jupe
nor the members of the local have any further interest
in the registration of it.
Counsel for the respondent concedes that both Jupe
and the members of the Local could have status to
pursue the within matter even though it is moot but
says that it is a question to he decided in the discre
tion of the Court which he submits should be exer
cised against allowing the matter to proceed. Counsel
for the applicants challenges the assertion of moot-
ness and submits that, even if the proceedings are
moot, I should exercise my discretion in favour of
hearing the merits of the application.
The doctrine of mootness and its consequences is
definitively canvassed by Sopinka J. in the Supreme
Court of Canada decision in Borowski v. Canada
(Attorney General), [ 1989] 1 S.C.R. 342. At page 353
Mr. Justice Sopinka states the general rule in the fol
lowing terms:
The doctrine of mootness is an aspect of a general policy or
practice that a court may decline to decide a case which raises
merely a hypothetical or abstract question. The general princi
ple applies when the decision of the court will not have the
effect of resolving some controversy which affects or may
affect the rights of the parties. If the decision of the court will
have no practical effect on such rights, the court will decline to
decide the case. This essential ingredient must be present not
only when the action or proceeding is commenced but at the
time when the court is called upon to reach a decision. Accord
ingly if, subsequent to the initiation of the action or proceed
ing, events occur which affect the relationship of the parties so
that no present live controversy exists which affects the rights
of the parties, the case is said to be moot. The general policy or
practice is enforced in moot cases unless the court exercises its
discretion to depart from its policy or practice. The relevant
factors relating to the exercise of the court's discretion are dis
cussed hereinafter. [Underlining is mine.]
There is no "live controversy" if the required tan
gible and concrete dispute has disappeared or, as
Duff C.J. said in The King ex. rel. Tolfree v. Clark et
al., [1944] S.C.R. 69, at page 72:
... the sub - stratum of the litigation has disappeared.
In the Borowski case the Court found the proceed
ings to be moot because the particular section of the
Criminal Code [R.S.C., 1985, c. C-461 being attacked
by Borowski as being invalid had, by the time the
appeal came before the Supreme Court of Canada,
already been struck down by that Court. In the Clark
case the applicants sought to restrain the respondents
from sitting as members of the Ontario legislature.
However, as the Legislative Assembly had been dis
solved prior to the matter coming on for hearing
before the Court, Duff C.J. determined it to be moot
and declined to hear the appeal.
The facts in the present matter are not at all analo
gous to the facts in the cases cited above or the others
to which reference is made by Sopinka J. in which
various courts have found mootness.
In this case the applicants seek to set aside the
registration of a pesticide on the grounds already set
out. When the matter came on for hearing before me
the pesticide was not only still registered but its regis
tration had been extended to December 31, 1995.
There is no question, and counsel for the respondent
did not advance the argument to the effect that there
did not exist a live controversy affecting the rights of
the parties up to May 6, 1991.
The sole ground on which counsel for the respon
dent submitted that the matter had become moot as of
May 6, 1991 was that, as of that date, the employer
that used the pesticide in its operations had discontin
ued its use. Counsel for the respondent did not submit
any undertaking or assurance by the employer that it
would refrain from using the pesticide in the future
and the pesticide in question, having had its registra-
tion extended to 1995, can legitimately be used by
that employer at any time prior to that date if it
chooses so to do.
Nor was there any suggestion by counsel for the
respondent that the registration of the pesticide would
be withdrawn, suspended or cancelled, thus prohibit
ing its use.
Once again I can see no merit to the submission of
counsel for the respondent that, by reason of the
employer's voluntary and indefinite cessation of the
use of the pesticide under consideration, the issue of
whether it should have been registered in the first
instance or that its registration should be allowed to
continue has become moot. To accept that submission
and to dismiss the application on the ground of moot-
ness could result in the employer using the pesticide
once again and breathing life into the controversy
which its counsel submits is dead. The controversy
between the parties is not over the use or non-use of
the pesticide by any particular employer but is
whether the pesticide should have been registered in
the first instance.
Because, in my opinion, there is no question that
the sub-stratum of the litigation remains and that
there still exists a live controversy between the par
ties, the matter cannot be said to be moot. I can see
no necessity of proceeding further to examine the
question of exercising my discretion to hear and
determine the issue notwithstanding its mootness.
Before proceeding into what may be termed the
merits or, probably more accurately, the factual basis
for the merits, I think it would be appropriate to
address as a preliminary issue the grounds relating to
the exercise of the Minister's discretionary decision-
making power by officials in his Department rather
than by the Minister.
The substance of the applicants' submission in this
respect is that the discretion granted to the Minister
under section 18 of the Regulations may not be dele
gated but must be exercised by the Minister person
ally. Counsel points out that in the registration pro
cess the decision of the Director and the decision of
the Minister are separated, which separation, she sug
gests, tends to support her submission.
Counsel is correct that section 13 of the Regula
tions makes the distinction claimed:
13. (1) Where the Minister receives an application for a cer
tificate of registration or an application to amend a certificate
of registration, he shall, subject to section 18, register the con
trol product or amend the registration thereof, as the case may
be, and record in a register of control products the information
provided in accordance with sections 7 and 9.
(3) Where a control product or an amendment to the regis
tration of a control product is registered, the Director shall
issue a certificate of registration bearing the registration num
ber of the control product.
Counsel is also correct in her submission that sec
tion 18 of the Regulations calls upon the Minister to
form an opinion on several matters:
18. The Minister may refuse to register or amend the regis
tration of a control product if, in his opinion,
(a) the application for registration, the application to amend
the certificate of registration or the label for the control
product does not comply with the Act and these Regula
tions;
(b) the information provided to the Minister on the applica
tion is insufficient to enable the control product to be
assessed or evaluated;
(c) the applicant fails to establish that the control product
has merit or value for the purposes claimed when the control
product is used in accordance with its label directions;
(d) the use of the control product would lead to an unaccept
able risk of harm to
(i) things on or in relation to which the control product is
intended to be used, or
(ii) public health, plants, animals or the environment; or
(e) the control product is not required to be registered.
In my view it does not necessarily follow from
these observations that the Minister must address his
mind personally to the matters upon which his opin
ion is required. Counsel for the respondent has satis
fied me that in forming the opinion required by sec
tion 18 of the Regulations the Minister is entitled, in
this matter, to act through his departmental officials.
That, I hasten to add, is not to say that the opinions as
to the sufficiency of the evidence and the acceptabil
ity of risk of harm to the public need not be addressed
but only that they need not be addressed by the Min
ister personally.
Subsection 13(1) of the Regulations provides for
registration of the control product subject to a favour
able opinion by the Minister on the several matters
raised under section 18 of the Regulations. Subsec
tion 13(3) of the Regulations assumes a favourable
opinion by the Minister in favour of the applicant on
the matters raised in section 18 and assumes that the
Minister has registered the pesticide. Subsection
13(3) simply directs the person in the department
who is, without exercising any discretion, to issue the
certificate of registration. The Director simply certi
fies that a registration has occurred ... no discretion
ary power is exercised by the Director pursuant to
subsection 13(3).
Because section 13 of the Regulations does not
distinguish between the functions of the Minister and
the Director on the basis of discretionary matters
which are to be exercised by the Minister as opposed
to other discretionary matters which are to be exer
cised by the Director, I am unable to accept counsel's
submission that Parliament thereby intended the dis
cretionary powers assigned to the Minister to be exer
cised by him personally.
Jackett C.J. of the Federal Court of Appeal dealt
with this matter in Ahmad v. Public Service Commis
sion, [1974] 2 F.C.'644, at pages 650-651, in the fol
lowing terms:
Section 6(5) of the Public Service Employment Act provides
that a deputy head may authorize one or more persons under
his jurisdiction "to exercise and perform any of the powers,
functions or duties of the deputy head" under that Act. By an
instrument dated March 22, 1971, the deputy head in question
authorized inter alia the "Director, Personnel Administration
Branch" to "exercise and perform the powers and to delegate
functions or duties" conferred upon him by inter alia section
31 of the Public Service Employment Act. In my view, while
not as aptly worded as it might have been, this instrument was
adequate authority for the Director to form the opinion of the
applicant's incompetency that was a condition precedent to a
recommendation under section 31 [Compare Mungoni v. Attor
ney General of Northern Rhodesia, [1960] A.C. 336]. In any
event, quite apart from special statutory authorization, in my
view, this opinion was not one that required personal attention
from the deputy head and was validly formed by appropriate
departmental officials on the basis of the principles applied in
such cases as Carltona, Ltd. v. Comrs. of Works [[1943] 2 All.
E.R. 560]. See per Lord Greene M.R. in that case at page 563:
In the administration of government in this country the
functions which are given to ministers (and constitutionally
properly given to ministers because they are constitutionally
responsible) are functions so multifarious that no minister
could ever personally attend to them. To take the example of
the present case no doubt there have been thousands of req
uisitions in this country by individual ministries. It cannot
be supposed that this regulation meant that, in each case, the
minister in person should direct his mind to the matter. The
duties imposed upon ministers and the powers given to min
isters are normally exercised under the authority of the min
isters by responsible officials of the department. Public busi
ness could not be carried on if that were not the case.
Constitutionally, the decision of such an official is, of
course, the decision of the minister. The minister is respon
sible. It is he who must answer before Parliament for any
thing that his officials have done under his authority, and, if
for an important matter he selected an official of such junior
standing that he could not be expected competently to per
form the work, the minister would have to answer for that in
Parliament. The whole system of departmental organisation
and administration is based on the view that ministers, being
responsible to Parliament, will see that important duties are
committed to experienced officials. If they do not do that,
Parliament is the place where complaint must be made
against them. [See also S.A. de Smith's Judicial Review of
Administrative Action at pages 290-291 of the second edi
tion.]
It would be quite impossible for the deputy head of a large
modern government department to give personal attention to
all such matters, important as they may be to individuals con
cerned. That is why departmental administration is organized
as it is and, in my view, there is a necessary implication, in the
absence of something expressly or implicitly to the contrary,
that ministers' powers, and deputy ministers' powers, are exer
cised on their behalf by their departmental organizations as
long as they are of an administrative character. To what extent
officials are allowed or required to do so in particular cases is a
matter of internal arrangement and outsiders have no status to
question the authority of an official in a particular case.
Jackett C.J. applied the doctrine of necessary
implication of authority in the absence of something
expressly or implicitly to the contrary to the exercise
by a Director of a department of the discretionary
authority vested in the deputy head of the depart
ment. As I can find nothing in the legislation or Reg
ulations relevant to this matter that would expressly
or implicitly prohibit the exercise of the discretionary
powers vested in the Minister by section 18 of the
Regulations by his departmental organization and as
these powers are administrative in character, I find
that they may properly be exercised by the parties
who did in fact exercise them.
That is to say I find that Donald Edouard Mondor
was authorized by implication to sign the subsection
13(3) certificate of registration and that Clifford
David Ralph was authorized by implication to exer
cise the discretion assigned to the Minister under sec
tion 18 of the Regulations. Having come to this con
clusion I will not, in the balance of the reasons for
this decision, distinguish between the discretion exer
cised by Ralph under section 18 of the Regulations
and the exercise of the Minister's discretion under
that section.
Having addressed what I have chosen to character
ize as preliminary matters, that leaves for my consid
eration and determination the three remaining
grounds for this application relating to alleged
excesses of jurisdiction by the Minister: his alleged
failure to consider the sufficiency of the information
necessary for evaluating the pesticide or whether its
use would lead to an unacceptable risk of harm to the
public; the making of those decisions before receiv
ing the information required to make them in a rea
sonable manner; and the making of those decisions in
the absence of consultation with other federal and
provincial authorities which the applicants allege
they legitimately or reasonably expected him to do.
The pesticide Busan 30WB is an anti-sapstain
product used in the lumber industry to prevent discol
oration in non-kiln dried wood caused by fungi which
flourish in moist, still warm air. The shipment of
freshly cut wood by sea over long distances in warm
climatic conditions presents an ideal environment for
the development of this mould which, if it develops,
reduces the grade and consequently the value of the
lumber.
Kiln drying the lumber is one method of prevent
ing the staining but, I gather, compared to the use of
anti-sapstain fungicides, is considerably more costly.
Naturally the lumber industry prefers the pesticide to
the kiln-drying method. About 90% of British
Columbia's coastal lumber production is pesticide
treated and about 90% of the treated lumber is
exported.
Prior to the introduction of Busan 30WB in the
sawmill industry, pesticides which contained
polychlorophenols (PCPs) had been the predomi
nantly used pesticides. By 1989, however, the use of
pesticides containing PCPs had been all but discon
tinued and had been replaced by several other types,
the predominant one of which contained 2-(thiocya-
nomethylthio) benzothiazole ("TCMTB") which had,
by that time, taken over about 50% of the market
share of anti-sapstain fungicides used in British
Columbia industry.
I mention other types of pesticides containing
TCMTB because Busan 30WB was not the only pes
ticide containing this ingredient. Ralph, at paragraph
47 of his affidavit, referred to a study prepared for the
Forest Industry Industrial Health Research Program
dated July 1987 (Exhibit "I" to Ralph's affidavit)
which, at page 40, identifies 14 wood-treatment prod
ucts containing TCMTB which had been registered
by Agriculture Canada as of June 1987. Of these 14
products seven had the same concentration of
TCMTB as Busan 30WB.
I pause here to note that although the study to
which reference is made in the preceding paragraph
states all of the 14 products had been registered by
Agriculture Canada as of June 1987, Busan 30WB,
which is listed as one of them, was not in fact regis
tered until October of 1988.
Generally, for the purposes of this application,
Ralph has compared Busan 30WB with Busan 30 and
Busan 1030, all three of which products are manufac
tured by the intervenor, Buckman Laboratories of
Canada Ltd., and all three of which, in their undiluted
form, contain 30% of TCMTB.
It is submitted by the respondent that the only dif
ference between Busan 30, Busan 1030 and Busan
30WB is that instead of being contained in a petro
leum base like Busan 30 and Busan 1030, Busan
30WB is a water-based (thus the WB) pesticide. To
all three Busan pesticides substantial quantities of
water are added to dilute them prior to their use in the
treatment of lumber. The respondent says that the
water-based formulation was created because of com
plaints which had been received from the users with
respect to the petroleum odour which was given off
when using Busan 30 or Busan 1030.
In fact the difference in the formulation of the two
petroleum-based Busan products and the subject
water-based product is not just a substitution of water
for the petroleum but the addition of other substances
in order to make the chemical (TCMTB) work, i.e.,
to make the final diluted solution disperse properly,
to make the TCMTB soluble and to make it stick to
the lumber (Transcript, pages 169-172).
These additions or substances appear to fall within
the statutory definition of "control product" them
selves as being:
(a) any compound or substance that enhances or modifies or is
intended to enhance or modify the physical or chemical char
acteristics of a control product to which it is added ....
Ralph's view with respect to the substitution of
water as a base to replace the petroleum base and the
addition of other substances is set out in the follow
ing paragraphs of his affidavit:
15. THAT the composition of the formulated control product
Busan 30WB is similar to that of formulated control products
Busan 30 or Busan 1030, save that the petroleum distillate
fraction of Busan 30 or Busan 1030 has been replaced with
water and appropriate adjustments have been made to the dis-
persant in the product.
16. THAT the assessment and evaluation of Busan 30WB sub
stantially entailed the substitution of the petroleum distillate
components of Busan 30 and Busan 1030 with equivalent
amounts of water.
17. THAT this type of substitution, i.e. water replacing a
petroleum distillate, would not be expected to increase the risk
of harm to public health, plants, animals or the environment.
Ralph's evidence with respect to the registration of
Busan 30WB is basically that after he received the
application for registration he checked the informa
tion on record with respect to the other controlled
products containing TCMTB, the active ingredient of
Busan 30WB, and found that it contained no active
ingredients that had not been previously assessed or
evaluated pursuant to paragraph 9(2)(a) of the Regu
lations. He also noted that TCMTB was the active
ingredient for Busan 1030 and Busan 30 which he
deposed had already been registered for anti-sapstain
applications (paragraph 9 of Ralph's affidavit).
In paragraph 18 Ralph went on to say the follow
ing:
18. THAT Health and Welfare assessment (Health and Welfare
letter of October 25, 1988 attached hereto and marked as
Exhibit "B" to this my Affidavit) of Buckman's information
relevant to the formulated control product Busan 30WB
(Buckman letter of December 22, 1986 attached hereto and
marked as Exhibit "C" to this my Affidavit) confirmed that
substitution of water for petroleum distillate did not increase
the risk of harm of Busan 30WB relative to previously regis
tered control products Busan 30 and Busan 1030.
The simple conclusion which I am apparently
asked to draw from Ralph's affidavit evidence is that
because TCMTB was the active ingredient of two
other anti-sapstain products which had already been
registered, and therefore already assessed or evalu
ated, it was pointless to re-assess or re-evaluate
Busan 30W8, the only significant change in which,
from the earlier registered formulations, was the sub
stitution of a water base for the other two petroleum-
based pesticides, which substitution did not increase
the risk of harm as confirmed in Health and Wel-
fare's assessment of October 25, 1988. Accordingly,
as there had already been an assessment and valua
tion of TCMTB and as the only change in the new
product could not increase the risk of harm, Ralph,
acting for the Minister under section 13 of the Regu
lations took the only logical step possible by register
ing the pesticide.
I do not agree that I can draw these conclusions
from the evidence which has been presented.
In paragraph 6 of his affidavit Ralph refers to the
previous evaluations of TCMTB. He gives no indica
tion of the extent of these assessments or evaluations
or when they took place. If, as he infers, he was rely
ing upon the presumably favourable assessments and
evaluations of TCMTB for not carrying out another
assessment or evaluation, then I would have expected
to have had put in evidence the specific details of
those earlier assessments or evaluations.
Ralph's assertion of his reliance on those early
evaluations or assessments as the basis for his regis
tration of Busan 30WB is all the more curious when
the Minister himself has admitted (Exhibit "S",
Applicants' Record, page 76) that TCMTB formula
tions are not supported by what would be considered
a full data package on the active ingredient.
It appears from the correspondence between coun
sel for the applicants and the Minister that the prior
registrations of products containing TCMTB were
made in the absence of information which would, in
1988 when Busan 30WB was registered, be required
in order that there be an assessment and evaluation as
contemplated by section 18 of the Regulations. I can
not, therefore, see the logic of Ralph, in 1988, relying
for registration of a product containing TCMTB upon
previous assessments or evaluations which admit
tedly did not comply with the requirements for regis
tration in 1988.
I note that the prior assessments or evaluations of
TCMTB to which Ralph refers in his affidavit are
said to have been made pursuant to paragraph 9(2)(a)
of the Regulations. This is the regulation which
requires the person seeking registration of a control
product to produce for the Minister such information
as will allow the Minister to determine the safety,
merit and value of a control product that has not been
previously assessed or evaluated. Paragraph 9(2)(a)
specifically states that it is not to limit the generality
of subsection 9(1) which permits the Minister to
require any information from the applicant to enable
him to determine the safety, merit and value of the
control product.
Accordingly I can see no reason why an assess
ment or evaluation of a pesticide pursuant to para
graph 9(2)(a) should prevent the Minister from sub
sequently asking for a full data package so that an
assessment or evaluation contemplated by the Regu
lations existing at the time of registration can be
made.
In any event section 9 deals only with information
which is to he supplied by the person seeking regis
tration of a control product. I can see nothing in the
Pest Control Products Act [R.S.C., 1985, c. P-9] or
Regulations which would limit the Minister's deter
mination of the issues raised in paragraph 18(b) or
(d) of the Regulations to a consideration of informa
tion submitted by the applicants. In fact the Minister
has, through his published pamphlet (Applicants'
record, page 80), indicated that in making his deter
mination with respect to the safety of a pesticide he
will involve in the decision-making process several
other federal government departments and their pro-
vincial counterparts. I agree with counsel for the
respondent that this should not be taken as an under
taking that the Minister will involve all of these
authorities in respect of every decision which has to
be made pursuant to section 18 of the Regulations but
I do regard it as an undertaking given to consult with
the appropriate authorities in any given case. In this
respect I should add that I equate the phrase "consult
with" with the phrase "participate in the decision
making."
At the very least I regard it as an undertaking to
consider the views of the other authorities in the
event that they are asked to submit them.
In this matter the intervenor made its application
for registration of Busan 30WB on March 29, 1985.
On the application itself it was indicated as being a
new application as opposed to a modified formula
tion.
Ralph, who was responsible for the assessment and
evaluation of the pesticide and the determination that
it was acceptable for registration, deposed:
4. THAT the assessment and evaluation of Busan 30WB and
the determination that the product was acceptable for Registra
tion was carried out pursuant to the Regulations and according
to Standard Directorate operating practices as summarized in
the Affidavit of Janet K. Taylor, sworn on the 9th day of May
1991.
In paragraph 15 of her affidavit, Taylor deposed:
15. THAT complete review of the fundamental properties of
the active ingredient, i.e. 2-(thiocyanomethylthio)
benzothiazole (TCMTB)—would normally be carried out and
is being carried via a special review or re-evaluation pursuant
to Section 19 of the Regulations as described in items 18-24 of
this my Affidavit, not during the consideration of minor for
mulation changes, i.e. water substitution in formulated control
product, as was entailed in the Busan 30WB application.
In this respect paragraphs 18 to 24 do not appear to
me to relate to any special review or re-evaluation of
TCMTB being carried out pursuant to section 19 of
the Regulations. Section 19 addresses itself to a con
sideration of the cancellation or suspension of a con
trol product during the period of its registration. As
far as I am able to determine the process described in
paragraphs 18 to 24 of Taylor's affidavit is directed
to obtaining from a representative group of bodies,
the multi-stakeholder forum, recommendations for a
revised federal pest management regulatory system,
which report is dated December 1990 and submitted
by the multi-stakeholder team to the Minister of
Agriculture (Exhibit 1F of the respondent's trial
record).
Notwithstanding Taylor's protestations:
14. THAT neither the Regulations nor Directorate operating
procedures, manuals, memoranda, etc. would require a product
manager to refer the minor formulation change/water dilution
entailed in the Busan 30WB application to Health and Welfare
prior to making a determination regarding the acceptability of
the product for registration nor would such reference to Health
and Welfare be expected of a product manager.
Ralph, on August 20, 1985, wrote to the intervenor in
the following terms:
Re: BUSAN 30WB
We have completed a preliminary review of your application to
register the subject product.
Prior to proceeding with evaluation of the product we will
require the following items:
1. Acute toxicity data on the formulated product.
2. Product data sheets on non-actives included in the formu
lation.
Clifford Ralph
Pesticides Division
(Applicants' record, page 19.)
After receiving these requested studies Ralph, on
January 6, 1987, wrote to the intervenor as follows:
Re: Busan WB Liquid Microbicide
Evaluation of this product for compliance with the require
ments of the Pest Control Products Act is complete and the
registration number 19965 is assigned. Some required correc
tions are noted on your draft label.
Registration will be granted and the certificate issued when we
receive five (5) copies of the printed label.
Clifford Ralph
Product Management Division
(Applicants' record, page 20.)
However, on the same day, Ralph wrote the fol
lowing letter to the federal department of Health and
Welfare:
Re: Busan 30 WB; Reg. No. 19965
Please find enclosed for your review and comment, acute tox
icity studies for the subject product.
1. Index to data
2. Product specification form
3. Proposed product label with revisions
4. Acute oral toxicity
5. Acute dermal toxicity
6. Primary eye irritation study
7. Primary dermal irritation study
The company has indicated that the product is likely to be a
sensitizer based on technical TCMTB data.
We will require appropriate wording on the label to identify
this hazard.
Acute inhalation study on technical TCMTB is on file. Busan
30 WB is not sprayed prior to diluting the product with water.
Specific label statements for spray equipment are included. In
addition, "Guidelines for the safe use of TCMTB in wood pro
tection" will be referenced on the product label.
We have proceeded to register Busan 30 WB as an alternative
to chlorophenol formulations and have assigned the registra
tion number 19965.
Should your review of these studies result in requirements for
further label precautionary statements, the registrant will be
required to amend labels at that time.
Thank you in advance for your review of this product.
Sincerely,
C.S. Ralph
Product Management Division
(Applicants' record, page 21.)
Ralph explains his letter of January 6, 1987 to
Health and Welfare in paragraph 27 of his affidavit in
the following terms:
27. THAT my action in writing to Buckman and subsequently
forwarding their information to Health and Welfare as per my
letter dated January 6, 1987 attached here and marked as
Exhibit "G" to this my Affidavit was part of the effort by the
Directorate to provide an opportunity for future comments by
Health and Welfare with respect to TCMTB and was indepen
dent of the registration process of Busan 30WB.
I cannot accept Ralph's explanation. In my view
the wording of his letter of January 6, 1987 to Health
and Welfare makes it quite clear that the review and
comments requested from Health and Welfare were
procedures which formed a part of the registration
process. Apart from Ralph's general request for a
review and comment of the data enclosed in his Janu-
ary 6, 1987 letter he specifically sought guidance on
the labelling and undertook to require the intervenor
to make label changes if Health and Welfare's review
of the studies indicated that such changes were
required. The fact that the label for the control prod
uct is a part of the registration process is clear
because, pursuant to section 5 of the Act, a control
product may not be sold in Canada unless the product
has been labelled as prescribed and, pursuant to sub
section 13(2) of the Regulations, the label forms a
part of the registration. Furthermore a cursory review
of the Act and Regulations indicates the importance
attached to the labelling of control products.
I note that in Ralph's letter of January 6, 1987 to
the intervenor he says that evaluation is complete and
that registration number 19965 is assigned to the pes
ticide. The applicants, I presume out of an over-abun
dance of caution, move that this preliminary decision
granting registration be set aside. In fact there is hut
one decision granting registration and that is the deci
sion of October 19, 1988 pursuant to which the certif
icate of registration was signed on the same date and
it is to that decision that I direct my consideration in
this matter.
In its reply of February 6, 1987 to Ralph's letter of
January 6, 1987, Health and Welfare incorrectly
assumed that Busan 30WB had been granted registra
tion and sent the toxicological information to the re-
evaluation section of its Pesticides Division because
the section to which Ralph had sent the data dealt
only with preregistration reviews of the information.
Although nothing turns on this distinction, it is inter
esting to note that Ralph had sent the data to the sec
tion the duty of which was to undertake a preregistra
tion review of it. Ralph had, in fact, sent the data to
the appropriate section as the pesticide in question
had not yet been registered.
In June of 1988 the Re-assessment Section of
Health and Welfare's Pesticides Division wrote to
Ralph informing him that it was proceeding with its
review of the toxicology data base on TCMTB but
that it required further information in order to pro
vide a status report.
On October 19, 1988, without obtaining any report
from Health and Welfare, Donald Mondor wrote the
following letter to the intervenor:
Re: Busan 30 WB; Reg. No. 19965
The review of your application to register this product has been
completed. Registration, pursuant to Section 13 of the Pest
Control Products Regulations, has been granted.
Your Certificate of Registration and a copy of the label are
enclosed. A registration fee of $25.00 will be deducted from
your account.
This submission is now complete.
Donald Mondor
Registration Officer
Antimicrobial Pesticides Section
(Applicants' record, page 27.)
It was on that date, October 19, 1988, that Mondor
certified that registration was granted pursuant to
subsection 13(3) of the Regulations.
Only a week later, on October 25, 1988, Health
and Welfare wrote to Ralph as follows:
Re: Busan 30 WB toxicity data
We have completed our review of the following toxicity
studies submitted by Buckman in support of their request for
registration of Busan 30 WB.
— Acute oral toxicity in rat. Hazleton Lab. America. Sample
#60906505, Dec. 8/86.
— Acute dermal toxicity in rabbits. Springboard Institute for
Bioresearch. Rep. #3138.6.I, March 19/86.
— Primary eye irritation study. (Rabbit) Intox. Lab. Inc. Rep.
#362, Prot. #BUC-AT-017, Jan. 24/83.
— Primary dermal irritation study in rabbits. Springboard
Institute for Bioresearch Inc. Rep. #3138.6.2, March
14/86.
In general, those studies are adequate, and the conclusions
presented appear to be appropriate. However, the chemical
identification and characterization of the test material
(lot/batch number, purity, contaminants, impurities, stability)
are insufficiently described in the study reports.
The above studies showed Busan 30 WB to be moderately
toxic via the oral route, slightly toxic via the dermal route and
severely irritative to skin and eyes. However, final conclusions
concerning the toxicity of this product would be premature at
this time since potential long term, oncogenicity and reproduc-
tive effects are not addressed in the present submission. A Sta
tus Report on TCMTB will be completed in the near future.
Yours truly,
Daniel Galarneau
Reassessment Section
(Respondent's trial record, exhibit 3B.)
As already noted, the Minister, in his letter of Feb-
ruary 13, 1990, agreed that TCMTB formulations, of
which Busan 30WB was one, were not supported by
what would be considered to be a full data package
on the active ingredient.
It is to the letter of October 25, 1988 from Health
and Welfare that Ralph points in paragraph 18 of his
affidavit as confirming that the substitution of water
for petroleum distillate did not increase the risk of
harm of Busan 30WB relative to previously registered
control products Busan 30 and Busan /030. With
respect to Ralph's view of the October 25, 1988 let
ter, I am unable to find anything in it which would
warrant that conclusion. The letter itself indicates that
it is only an interim report and, among other things,
says nothing of the effect of the additives, other than
water to the new formulation, which additives them
selves constituted a control product within the defini
tion assigned to that term in the definition section of
the Act.
The scheme of the Act has been accurately
described by Cullen J. of this Court in Monsanto
Canada Inc. v. Minister of Agriculture (1986), 8
C.P.R. (3d) 517 (F.C.T.D.), at page 518, as follows:
The Act is clearly designed to protect the health of the gen
eral public from the impact of products that may be dangerous,
and imposes significant control mechanisms before a product
is permitted to be registered.
This is reflected in sections 4 and 5 of the Act and
in the Regulations, particularly, for the purposes of
this matter, in sections 13 and 18 to which reference
has already been made.
As I see it, paragraph 18(b) of the Regulations
does not require an assessment or evaluation of the
control product but only a determination that the
information provided to the Minister relating to the
application for registration is sufficient or insufficient
to enable the control product to be assessed or evalu-
ated. Presuming there is a determination that the
information is sufficient, then the Plant Products
Division of the Production and Marketing Branch of
the Canadian Department of Agriculture is at liberty
to assess or evaluate the control product. Although I
am not certain, it appears to me that the evaluation
contemplated is that described in paragraph 18(c) of
the Regulations and the assessment contemplated is
described in paragraph 18(d). However the first step
is a determination of the sufficiency of the informa
tion so as to permit the product's evaluation or
assessment.
In this matter the Minister, in my view, has failed
to address his mind to the first step. Ralph said he
relied upon the prior registration of control products
containing TCMTB and upon the fact that they must
have already been assessed or evaluated to dispense
with a further assessment or evaluation or a re-assess
ment or re-evaluation. I find that reasoning to be
faulty and unacceptable. In the first place the only
information I have, with respect to the assessment or
evaluation of TCMTB which took place in relation to
the pre-1980 registrations of Busan 30 and Busan
1030, is that they were based on what would not he
considered, at the time of the application for registra
tion of Busan 30WB, as a full data package, i.e., the
information provided to the Minister which resulted
in the registration of Busan 30 and Busan 1030 was
admittedly insufficient to enable those products to be
properly assessed or evaluated in accordance with the
standards prevailing at the time of the Busan 30WB
application for registration.
If the information previously submitted was insuf
ficient to enable Busan 30 and Busan /030 to be
properly assessed or evaluated in accordance with the
requirements applicable to Busan 30WB at the time
of its registration, then, in my opinion, Ralph was not
entitled to rely upon the previous registrations as
establishing the sufficiency of the information for the
purpose of assessing or evaluating Busan 30WB.
The question to which Ralph (the Minister) had to
address his mind was whether the information pro
vided to the Minister on the application was suffi
cient to enable Busan 30WB to be properly assessed
or evaluated in accordance with the requirements
which prevailed in 1985. Ralph did not address his
mind to this question but only to the question of
whether there was any change in the active ingredient
of Busan 30WB relative to Busan 30 and Busan 1030
and concluded that because there was no change in
the active ingredient there would be no need for a
new assessment or new evaluation of the control
product Busan 30WB.
Because Ralph did not address the question of the
sufficiency of the information which was, in my
view, a condition precedent to the exercise of the
Minister's discretion to register or not to register the
control product, the Minister exceeded his authority
in exercising his discretion when he caused the con
trol product Busan 30WB to be registered and that
registration must therefore be quashed.
Even if the Minister addressed his mind to the
appropriate question and found that the information
supplied in relation to the application for registration
of Busan 30WB was sufficient to enable the control
product to be assessed and evaluated, the Minister
nevertheless exceeded his authority in exercising his
discretion to cause Busan 30WB to be registered
because the sufficiency decision was patently in
error.
Ralph knew or ought to have known that in order
to properly assess or evaluate Busan 30WB in 1985
or in 1988, when registration took place, a complete
data package would be required. Likewise he knew or
ought to have known that when TCMTB had been
assessed or evaluated for the registration of Busan 30
and Busan 1030, it was assessed or evaluated on the
basis of information provided which was insufficient
so as to enable a proper assessment or evaluation of
TCMTB in 1988. Ralph therefore could not reasona
bly have concluded that the information provided in
relation to the registration of the control product
Busan 30WB was sufficient, in 1988, to enable a
proper evaluation of the product to be made. As
Ralph could not reasonably have come to that conclu
sion the Minister would have exceeded his authority
in exercising his discretion in favour of causing
Busan 30WB to be registered and the registration, on
that basis as well, must therefore be quashed.
The scheme of the Act, to which I have already
made reference, is designed to protect the health of
the general public from the impact of control prod
ucts that may be dangerous.
This design is reflected not only in the Act and the
Regulations but also in the January 5, 1984 Registra
tion Guidelines relating to the registration of pesti
cides and other control products under the Act and in
the 1985 pamphlet issued by Agriculture Canada
numbered 5206/E and entitled Pesticides in Perspec
tive (Applicants' record, page 79.)
Under the heading "Regulation of antimicrobial
products" in the Guidelines it is provided that an
application for registration of a control product must
include, among other things, in the case of new active
ingredients, as well as previously evaluated active
ingredients in respect of which new or modified
claims have been made, full documentation by way
of scientific and technical data to allow a complete
evaluation of the effectiveness and safety of the prod
uct.
Counsel for the respondent argues that because
TCMTB is the only active ingredient of Busan 30WB
and as the only significant change in the Busan 30WB
formulation relative to the previously registered
Busan 30 and Busan /030 formulations was substitu
tion of a water base for a petroleum base, the full
documentation package was not required in respect of
the registration of Busan 30WB.
I have some reservations with respect to this sub
mission. It is common ground that there had never
been a complete evaluation for TCMTB contem
plated by the guidelines at the time of the interven-
or's application for registration of Busan 30WB due
to the lack of complete scientific and technical data.
Thus, in this respect, and assuming TCMTB to be the
only active ingredient in Busan 30WB, an argument
can be made that because there was no new active
ingredient a complete evaluation was not necessary.
If that argument were to he accepted it would be on
the basis of a purely technical argument and would
certainly be contrary to the scheme of the Act as it
would allow registration of a control product the
active ingredient of which had admittedly not been
adequately evaluated for effectiveness and safety.
However I need not and will not pursue that line of
argument because it is not necessary in view of the
conclusions to which I have come with respect to the
undertaking given by Agriculture Canada in the pam
phlet Pesticides in Perspective in the following
terms:
The Pest Control Products Act governs the sale and use of
all pesticides. It lets Agriculture Canada ensure their safety and
effectiveness before they are made available to the public.
Health and Welfare Canada, Environment Canada, Fisheries
and Oceans Canada and their provincial counterparts all par
ticipate in the decision-making.
(Applicants' record, page 80.)
Counsel for the applicants has cited this document
as calling into play the doctrine of legitimate or rea
sonable expectation. The doctrine is outlined by
Hugessen J. of the Federal Court of Appeal in
Bendahmane v. Canada (Minister of Employment and
Immigration), [1989] 3 F.C. 16 (C.A.), at pages 31-
32, in the following terms:
The applicable principle is sometimes stated under the rubric
of "reasonable expectation" or "legitimate expectation". It has
a respectable history in administrative law and was most force
fully stated by the Privy Council in the case of Attorney-Gen
eral of Hong Kong v. Ng Yuen Shiu [[1983] 2 A.C. 629 (P.C.)].
In that case, Ng was an illegal immigrant to Hong Kong from
Macau, one of several thousands. The Government gave a pub
lic assurance that each illegal immigrant would be interviewed
and each case treated on its merits. Notwithstanding this, Ng,
whose illegal status was not in dispute, was ordered deported
without being given the opportunity to explain why discretion
should be exercised in his favour on humanitarian and other
grounds. The Privy Council held that in so acting the authori
ties had denied Ng's reasonable expectations based upon the
Government's own statements. Lord Fraser of Tullybelton put
the matter thus (at page 638):
... when a public authority has promised to follow a certain
procedure, it is in the interest of good administration that it
should act fairly and should implement its promise, so long
as implementation does not interfere with its statutory duty.
The principle is also justified by the further consideration
that, when the promise was made, the authority must have
considered that it would be assisted in discharging its duty
fairly by any representations from interested parties and as a
general rule that is correct.
In the opinion of their Lordships the principle that a pub
lic authority is bound by its undertakings as to the proce
dure it will follow, provided they do not conflict with its
duty, is applicable to the undertaking given by the Govern
ment of Hong Kong to the applicant, along with other ille
gal immigrants from Macau, in the announcement outside
the Government House on October 28, that each case would
be considered on its merits.
In my view counsel for the applicants has correctly
invoked the doctrine in this matter. Agriculture
Canada's undertaking to have Health and Welfare
participate in the decision-making process of ensur
ing the safety and effectiveness of a pesticide before
Agriculture Canada made it available to the public
created in the applicants a legitimate or reasonable
expectation that that procedure would be followed.
The mere request for Health and Welfare's views and
comments did not amount to compliance with that
procedural undertaking. Agriculture Canada, in my
view, properly determined that it should have the
views of Health and Welfare Canada hut, in register
ing the pesticide without considering those views, the
respondent Agriculture Canada denied the reasonable
expectation of the applicants that Health and Welfare
would be included in the decision-making process.
As the applicants were denied their reasonable or
legitimate expectation that Health and Welfare would
participate in the decision-making process the Minis
ter exceeded his authority or acted without authority
in registering Busan 30WB in the absence of Health
and Welfare's participation.
It follows from that conclusion that certiorari will
lie to quash the registration.
The certificate of registration of Busan 30WB was
signed by Mondor on October 19, 1988 and noted, on
a portion of the March 29, 1985 application for regis
tration which is apparently the certificate, the follow
ing:
This certificate is for the registration period ending December
31, l990/95.
It is not clear to me if that notation was an exten
sion of the original registration which may have been
due to expire on December 31, 1990 or when or if
Any consideration was addressed to an expiration date
of December 31, 1985 beyond the data which was
used to support the registration of October 19, 1988.
In this respect I will assume that is to be taken
merely as an extension of the October 19, 1988 cer
tificate of registration and, having found that that cer
tificate should be quashed for the reasons already
given, it follows that any extension of it must also be
quashed.
The applicants will have their costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.