Sutcliffe et al. v. Minister of the Environment (Ontario) et al. The Mohawks of the Bay of Quinte v. Minister of the Environment (Ontario) et al. [Indexed as: Sutcliffe v. Ontario (Minister of the Environment)]
69 O.R. (3d) 257
[2004] O.J. No. 277
Docket Nos. M30744 and M30735/C40916
Court of Appeal for Ontario
Rosenberg J.A. (in Chambers)
January 8, 2004
Administrative law -- Appeals -- Intervention -- Section 9(4) of Judicial Review Procedure Act giving Attorney General right to intervene in appeals from decisions in judicial review applications as well as in original applications -- Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 9(4).
The respondents brought an application for judicial review to quash terms of reference approved by the Minister of the Environment under the Environmental Assessment Act, R.S.O. 1990, c. E.18. The Attorney General of Ontario did not intervene in the application. The application was granted and the Minister's approval of the terms of reference was quashed. The Minister and the company which was seeking approval from the Minister under the Act applied for and obtained leave to appeal the Divisional Court's decision. The Minister subsequently filed a notice of abandonment. The Attorney General of Ontario filed a notice of intervention which stated that the Attorney General was intervening in the appeal as of right pursuant to s. 9(4) of the Judicial Review Procedure Act ("JRPA"). The respondents brought a motion to strike out the notice of intervention.
Held, the motion should be dismissed.
The fact that the Minister had abandoned her appeal was not a bar to the intervention by the Attorney General. If the notice of intervention was properly filed, there was no basis for striking it out because of an alleged inconsistency in the positions taken by the Minister and the Attorney General. The Attorney General has a special obligation to uphold the law as the Chief Law Officer of the Crown, and also enjoys a special status of independence from the government that is very different from other members of the Cabinet. The decision of the Court of Appeal in this case could have an impact on other similarly worded legislation, and the Attorney General might have an interest in the potential impact of the decision on the standard of review of Ministers' decisions and the scope of ministerial discretion.
Section 9(4) of the Judicial Review Procedure Act provides that "Notice of an application for judicial review shall be served upon the Attorney General who is entitled to appear as of right to be heard in person or by counsel on the application." Apart from s. 9(4), the Attorney General does not have the right to be heard on judicial review applications. Applications for judicial review are the modern embodiment of the common law prerogative remedies such as certiorari and prohibition. Historically, those writs issued as of right on application of the Attorney General. If the Attorney General could apply for the writ as of right, he or she would have had the right to intervene in the public interest in a proceeding brought by a third party. Thus, s. 9(4) codifies the Attorney General's right to be heard on these applications and ensures that the right is effective by requiring notice to the Attorney General. There is, however, no common law or inherent [page258] right to appeal from decisions on such applications. Appeal rights are wholly a matter of statute. Moreover, in Ontario, there is no automatic right of appeal from a decision in a judicial review application. Therefore, the Attorney General's right to intervene in the Court of Appeal must rest on statute. Section 9(4) of the JRPA is broad enough to encompass appeals to the Court of Appeal from a decision in a judicial review application. While a notice of appeal, once leave to appeal is granted, begins the process in the Court of Appeal, the original notice of application under s. 2(1) of the JRPA remains the foundation document. The Court of Appeal has the same jurisdiction as the court hearing the original application to grant the relief set out in s. 2(1). When the Court of Appeal comes to deal with the appeal, it is dealing with an "application" within the meaning of s. 9(4).
MOTION to strike out a notice of intervention in an appeal.
Cases referred to Adams v. Adams, [1970] 3 All E.R. 572, [1971] P. 188, [1970] 3 W.L.R. 934, 114 Sol. Jo. 605 (P.D.A.); Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, 100 B.C.L.R. (3d) 1, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, 93 C.R.R. (2d) 189, 18 C.P.R. (4th) 289, [2002] S.C.J. No. 43 (QL); Denison Mines Ltd. v. Ontario Hydro (2001), 2001 5681 (ON CA), 56 O.R. (3d) 181 (C.A.); Energy Probe v. Atomic Energy Control Board, 1984 5388 (FCA), [1985] 1 F.C. 563, 15 D.L.R. (4th) 48, 56 N.R. 135, 11 Admin. L.R. 287, 13 C.E.L.R. 162, [1984] F.C.J. No. 936 (QL) (C.A.), affg in part (1984), 1984 5394 (FC), 8 D.L.R. (4th) 735, 43 C.P.C. 34 (F.C.T.D.); Fry v. Doucette (1980), 1980 2513 (NS CA), 40 N.S.R. (2d) 563, 115 D.L.R. (3d) 274, 73 A.P.R. 563 (C.A.); P.P.G. Industries Canada Ltd. v. Canada (Attorney General), 1975 204 (SCC), [1976] 2 S.C.R. 739, 65 D.L.R (3d) 354, 7 N.R. 209; The Queen in Right of Alberta and County of Beaver No. 9 (Re) (1984), 1984 ABCA 100, 31 Alta. L.R. (2d) 174, 8 D.L.R. (4th) 473, [1984] 4 W.W.R. 371 (C.A.), revg (1982), 1982 1162 (AB QB), 20 Alta. L.R. (2d) 78, 136 D.L.R. (3d) 144, [1982] 4 W.W.R. 344, 17 M.P.L.R. 244 (Q.B.)
Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6, 8, 109 Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 6 Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 18 Interpretation Act, R.S.C. 1985, c. I-21, s. 12 Interpretation Act, R.S.O. 1990, c. I.11, s. 10 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1, 2, 6, 9(4) Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 5
Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 13
Authorities referred to Edwards, J.Ll.J."The Attorney General and the Charter of Rights", In Charter Litigation, edited by Robert J. Sharpe (Toronto: Butterworths, 1997) Edwards, J.Ll.J."The Charter, Government and the Machinery of Justice" (1987), 36 U.N.B.L.J. 41 Royal Commission Inquiry into Civil Rights, Report No. 1 (1968), vol. 1. Scott, I."Law, Policy and the Role of the Attorney General: Constancy and Change in the 1980s" (1989), 39 U.T.L.J. 109
Richard D. Lindgren, for Ben Sutcliffe and Helen Kimmerly. Patrick F. Schindler, for Mohawks of the Bay of Quinte. [page259] Andrew Lokan, for Canadian Waste Services. Sara Blake, for Attorney General of Ontario.
[1] ROSENBERG J.A.:-- This is a motion by the respondents to this appeal to strike out a notice of intervention filed by the Attorney General for Ontario. For the following reasons, I would dismiss the motion.
Background
[2] The history of this case is somewhat unusual. The appellant Canadian Waste Services ("CWS") wishes to expand an existing landfill site near Kingston. CWS must obtain approval from the Minister of the Environment under the Environmental Assessment Act, R.S.O. 1990, c. E.18, to expand their landfill. A step in the approval process is for the applicant to obtain terms of reference for an environmental assessment. Section 6 of the Act sets out what the terms of reference must address. Section 6(4) provides that the Minister shall approve the proposed terms of reference. The Minister approved CWS's proposed terms of reference.
[3] The respondents Sutcliffe, Kimmerly and the Mohawks of the Bay of Quinte, occupy nearby land. They applied to the Divisional Court by way of judicial review to quash the terms of reference on the basis that the proposed terms did not comply with s. 6 of the Act. The respondents in the application before the Divisional Court were the Minister of the Environment and CWS. The Minister was represented by counsel from the Ministry of the Attorney General, but the Attorney General did not intervene in the application.
[4] The Divisional Court granted the application for judicial review and quashed the Minister's approval of the terms of reference. The Minister and CWS applied to this court for leave to appeal the decision of the Divisional Court. On November 3, 2003, this court granted both parties leave to appeal. On November 10, 2003, CWS served and filed its notice of appeal. The Minister of the Environment did not file a notice of appeal. Rather, on November 10, 2003, counsel for the Minister filed a notice of abandonment. On the same day, counsel who had filed the notice of abandonment on behalf of the Minister sent a letter to counsel for the respondents indicating that the Attorney General was considering whether to intervene in the appeal by CWS as the appeal "raises issues of government-wide importance including the standard of review of Minister's decisions and the scope of Ministerial discretion". She therefore asked to be served with all documents filed with the court. On November 18, 2003, this same counsel, now described as counsel for the Intervenor, the Attorney [page260] General for Ontario, filed a "NOTICE OF INTERVENTION" in the following terms:
THE ATTORNEY GENERAL FOR ONTARIO intervenes in this appeal as of right pursuant to section 9(4) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[5] R. Donald Maracle, Chief of the Tyendinaga Mohawk Territory, has filed an affidavit on this motion. He refers to questions and statements by Leona Dombrowsky, a member of the Legislative Assembly, concerning the CWS landfill at issue in this case. It is fair to say that in those statements and questions, she supported the majority decision of the Divisional Court. On June 26, 2003, the Legislative Assembly was dissolved and an election called. As is well known, the government was defeated and a new government was sworn in. Ms. Dombrowsky became the Minister of the Environment. Chief Maracle states that the Minister assured him that she would not pursue the appeal from the Divisional Court. And, as I have pointed out, the Minister did indeed formally abandon her appeal on November 10, 2003.
Position of the Parties
[6] The moving parties are the respondents to the CWS appeal. They move to strike out the Attorney General's notice of intervention. They argue that as a matter of statutory interpretation, the Attorney General has no right to intervene in an appeal pursuant to s. 9(4) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Rather, the Attorney General must seek leave in accordance with Rule 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Mohawks also argue that the Crown is indivisible and it is improper for one arm of the Crown, the Minister, to abandon her appeal while another arm, the Attorney General, intervenes in the very same appeal, apparently in support of the appeal. I say "apparently" because the Attorney General has not yet filed any material on the appeal. Sutcliffe and Kimmerly submit that if the notice of intervention is upheld, I should set terms and conditions of that intervention dealing with timing, materials and oral submissions.
[7] Counsel for the Attorney General submits that the right to intervene in the original application must include the right to intervene in the Court of Appeal. She points out that the Attorney General often does not intervene at the Divisional Court stage and will decide to intervene only in the Court of Appeal because of the particular issue raised. She submits that given the special obligations of the Attorney General to superintend the administration of justice in the province, it is important that [page261] the Attorney General have the right to intervene in judicial review proceedings in the Court of Appeal. Those proceedings will involve the exercise of a statutory power or some form of action against a government or statutory body in which the Attorney General will always have an interest. She submits that it makes no sense to put the Attorney General "through the hoops" of moving for leave to intervene. Finally, Ms. Blake submits that apart from s. 9(4), the Attorney General has an inherent right to intervene both on the original application and any appeal.
Analysis
[8] I will deal first with the alternative argument by the Mohawks. In my view, if the notice of intervention is properly filed, there is no basis for striking it out because of what the moving party sees as an inconsistency in the positions taken by the Minister and the Attorney General. The theory that the Crown is indivisible can only be carried so far. The Attorney General has a special obligation to uphold the law as the Chief Law Officer of the Crown. The Attorney also enjoys a special status of independence from the government that is very different from other members of the Cabinet. It is not necessary for the purpose of this motion to fully develop that issue. Suffice it to say that there is a body of opinion in support of the view that in a proper case the Attorney General would even be entitled to bring an action against a Cabinet colleague if he or she believed that the Minister's proposed action was not in accordance with the law. See, for example, J. Ll. J. Edwards"The Attorney General and the Charter of Rights" in Charter Litigation, edited by Robert J. Sharpe (Toronto: Butterworths, 1987); J. Ll. J. Edwards"The Charter, Government and the Machinery of Justice" (1987) 36 U.N.B.L.J. 41; and I. Scott"Law, Policy and the Role of the Attorney General: Constancy and Change in the 1980s" (1989) 39 U.T.L.J. 109.
[9] I therefore cannot see any basis for striking out the notice of intervention on the basis of the perceived inconsistency between the position of the Minister and that of the Attorney General. Moreover, while the submissions made by the Minister and CWS on the leave application were similar, I would not presume that the Attorney General's position on the appeal would necessarily be the same as that of CWS. The Attorney General has much broader interests than does an ordinary litigant. The decision of the Court of Appeal in this case could have an impact on other similarly worded legislation. Further, as set out in his counsel's letter, the Attorney General may have an interest in the impact the decision may have on the standard of review of Ministers' decisions and the scope of Ministerial discretion. [page262]
[10] In fairness, I should indicate that in the course of the hearing, counsel for the Mohawks acknowledged that his alternative argument is probably better left to any application the Attorney General may have to make if he is required to apply for leave under Rule 13.
[11] I therefore turn to the principal argument. The moving parties put their submissions on the basis of statutory interpretation. The Attorney General purported to file his notice of intervention in this court under s. 9(4) of the JRPA. It provides as follows:
9(4) Notice of an application for judicial review shall be served upon the Attorney General who is entitled as of right to be heard in person or by counsel on the application.
[12] The term "application for judicial review" is defined in s. 1 of the JRPA as "an application under subsection 2(1)". Section 2(1), in turn, reads as follows:
2(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[13] The moving parties submit that s. 9(4) only gives the Attorney General the right to intervene on the original application and does not give the Attorney General, who has not intervened in the Divisional Court, the right to intervene in the Court of Appeal. They point out that the legislature has expressly dealt with the Attorney General's right to intervene in appeals in other contexts. Thus, under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, a notice of constitutional question must be served on the Attorney General and the Attorney General is entitled to notice of any appeal in respect of the constitutional question. Further, under s. 109(4) and (5) where the Attorney General is entitled to notice, he or she is entitled to adduce evidence and make submissions and is deemed to be a party to the proceeding "for the purpose of any appeal in respect of the constitutional question". Similarly, under s. 8(3) of the Courts of Justice Act on a reference by the Lieutenant Governor to the Court of Appeal "the Attorney General of Ontario is entitled to make submissions to the court." [page263]
[14] The moving parties submit that if the legislature had intended for the Attorney General to have an absolute right to intervene in this court without leave, it would have said so in explicit terms as has been done in the Courts of Justice Act in respect of constitutional questions and references.
[15] The modern rule of interpretation is set out in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, 212 D.L.R. (4th) 1, at para. 26:
In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: . . . I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I.21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
(Emphasis added)
[16] The Interpretation Act, R.S.O. 1990, c. I.11 contains a provision similar to s. 12 of the federal legislation [Interpretation Act, R.S.C. 1985, c. I-21]:
- Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
[17] It would seem that s. 9(4) of the JRPA is based on a recommendation in Report Number One of the 1968 Royal Commission Inquiry into Civil Rights, vol. 1, at p. 329:
It should be imperative that the Attorney General should be served with notice of all proceedings for judicial review, even though he may not be a party thereto. Such a practice would give the Attorney General an opportunity to fulfil his function as the guardian of the public interest and to bring the legal proceedings of administrative tribunals under the supervision of the Attorney General, which should be a safeguard to the rights of the individual and give guidance to tribunals in the exercise of the powers conferred on them.
[18] While the recommendation speaks only of notice to the Attorney General, the legislature obviously thought it important that the Attorney General have the right to intervene in judicial [page264] review proceedings. It is by participating in those proceedings that the Attorney General can fulfill, in part, the role referred to in the recommendation.
[19] Counsel for the Attorney General says that s. 9(4) merely confirms a right to intervene that the Attorney General possessed at common law. Thus, Ms. Blake referred to the decision of MacKeigan C.J.N.S. in Fry v. Doucette (1980), 1980 2513 (NS CA), 115 D.L.R. (3d) 274, 40 N.S.R. (2d) 563 (C.A.), at p. 282 D.L.R.:
I suggest that the Rules merely recognize the Attorney- General's traditional and inherent right in the public interest to support or oppose applications under Rules 56 or 58 for modern orders replacing the prerogative writs, the right traditionally exercised in respect of such writs under the Crown Rules prior to 1972. He should be permitted to initiate or support action to challenge abuse of jurisdiction by any public bodies. He also has a right to defend from unfounded jurisdictional attack inferior Courts or independent tribunals that cannot properly appear to be defending their own decisions.
[20] To a similar effect is the decision of Stevenson J.A. in Re The Queen in Right of Alberta and County of Beaver No. 9 (1984), 1984 ABCA 100, 8 D.L.R. (4th) 473, 31 Alta. L.R. (2d) 174 (C.A.), at p. 475 D.L.R.:
This is an application by the Attorney-General, not a relator proceeding. Obviously, rights of the general public are affected by the passage of this by-law. I say that public rights are affected not only because the public and the community were then precluded from the particular land use but also because the general body of ratepayers would be obliged to support the costs of an electoral plebiscite under s-s. (4) of s. 125. I am satisfied that the Attorney-General does have standing to take proceedings where public rights are involved. I do not think this has ever been in serious doubt and authorities acknowledging the standing of the Attorney-General go back to The King v. Berkley and Bragge (1754), 1 Keny. 80, 96 E.R. 923 at p. 932, and The King v. Thomas (1815), 4 M. & S. 442, 105 E.R. 897. Indeed, the prerogative writs were traditionally obtained on the relation of a private citizen but in the name of the Attorney-General whose standing could not be questioned: Thomas, at p. 899.
[21] On the other hand, reference should be made to P.P.G. Industries Canada Ltd. v. Canada (Attorney General), 1975 204 (SCC), [1976] 2 S.C.R. 739, 65 D.L.R. (3d) 354, at pp. 741-42 S.C.R., where Laskin C.J.C. cast some doubt on the absolute right of the Attorney General of Canada to apply to the Federal Court under s. 18 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.). There are other cases that also tend to support the view that the Attorney General has no absolute right to intervene in judicial review proceedings although leave will inevitably be granted. See for example, Energy Probe v. Atomic Energy Control Board, 1984 5388 (FCA), [1985] 1 F.C. 563, 15 D.L.R. (4th) 48 (C.A.), at pp. 576 and 585, and Adams v. Adams, [1970] 3 All E.R. 572, [1971] P. 188 (P.D.A.), at p. 577 All E.R. [page265]
[22] In my view, the Attorney General does have the right to be heard on judicial review applications, apart from s. 9(4). Applications for judicial review whether to the Divisional Court or, in cases of urgency, to the Superior Court of Justice, are the modern embodiment of the common law prerogative remedies such as certiorari and prohibition. Historically, those writs issued as of right on application of the Attorney General. See P.P.G. Industries, at p. 749 S.C.R. If the Attorney General could apply for the writ as of right, he or she would have had the right to intervene in the public interest in proceedings brought by a third party. Thus, s. 9(4) codifies the Attorney General's right to be heard on these applications and ensures that the right is effective by requiring notice to the Attorney General.
[23] There is, however, no common law or inherent right to appeal from decisions on such applications. Appeal rights are wholly a matter of statute. Moreover, in Ontario, there is no automatic right of appeal from a decision in a judicial review application. Whether the decision is made by the Superior Court of Justice or the Divisional Court, an appeal lies to this court only with leave. See s. 6(4) of the JRPA and s. 6(1)(a) of the Courts of Justice Act. Therefore, the Attorney General's right to intervene in this court must rest on statute.
[24] I am, however, satisfied that s. 9(4) is broad enough to encompass appeals to this court from a decision in a judicial review application. The purpose of giving notice of the application for judicial review and to permit the Attorney General to intervene as set out in the Royal Commission Inquiry Into Civil Rights remains equally valid on the appeal as on the original application. An interpretation of s. 9(4) that would limit the Attorney General's right to intervene to the hearing of the original application would not be consistent with the legislature's intention. The legislature intended that the Courts have the benefit of the Attorney General's submissions, as guardian of the public interest, in matters relating to challenges to government authority and actions by statutory tribunals. The legislature also wanted to ensure that the Attorney General is able to effectively carry out the statutory mandate to "see that the administration of public affairs is in accordance with the law" and to "superintend all matters connected with the administration of justice in Ontario": Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 5(b), (c).
[25] I am also satisfied that an interpretation of s. 9(4) that extends to appeal proceedings is consistent with the grammatical and ordinary sense of the subsection. While a notice of appeal, once leave to appeal is granted, begins the process in this court, [page266] the original notice of application under s. 2(1) of the JRPA remains the foundation document. This court has the same jurisdiction as the court hearing the original application to grant the relief set out in s. 2(1). Also see Denison Mines Ltd. v. Ontario Hydro (2001), 2001 5681 (ON CA), 56 O.R. (3d) 181 (C.A.), at para. 14, holding that an appeal is not a "proceeding" within the meaning of the Rules but rather "a step in a proceeding", being neither an action nor an application. In my view, when this court comes to deal with the appeal it is dealing with an "application" within the meaning of s. 9(4).
[26] Accordingly, I would not strike out the notice of intervention.
[27] It remains to deal with the submission that terms and conditions should be attached to the Attorney General's intervention. The moving parties submit that the Attorney General should be required to file his factum before they are required to file their factums. Counsel for the Attorney General agrees. There is, however, a slight dispute over timing. The Attorney General shall serve and file his factum 30 days after CWS serves its factum. The moving parties will have 45 days to file their factums from the date of filing of the Attorney General's factum. The Attorney General's factum will be limited to 30 pages.
[28] The moving parties submit that the Attorney General should not be permitted to make oral submissions. This is contrary to s. 9(4) of the JRPA. In the alternative, they submit that the Attorney General should be limited to 20 minutes. The court will deal with the allocation of time for oral submissions once the appeal is perfected. At this time, I would not make any order with respect to time allocations.
[29] Finally, the moving parties submit that on the appeal the Attorney General should be liable to pay costs and responsible for its own costs. In my view, the question of costs is best left to the panel hearing the appeal.
[30] Accordingly, subject to the directions set out in para. 27, this motion is dismissed. The Attorney General seeks costs of this motion fixed at "$2,000, payable forthwith" because this motion was "entirely without merit". I disagree. The moving parties have raised an important issue of first impression. The motion was brought in the context of the somewhat unusual circumstances generated by the Minister's decision to abandon her appeal. There will be no costs of this motion.
Motion dismissed. [page267]