T-85-97
Sierra Club of Canada (Applicant)
v.
The Minister of Finance of Canada, the Minister of Foreign Affairs of Canada, the Minister of International Trade of Canada and the Attorney General of Canada (Respondents)
and
Atomic Energy of Canada Limited (Intervener)
Indexed as: Sierra Club of Canadav. Canada (Minister of Finance) (T.D.)
Trial Division, Evans J."Ottawa, September 10 and December 2, 1998.
Practice — Parties — Standing — Appeal from dismissal of motion to strike Sierra Club's application for judicial review of Ministers' refusal to subject to full environmental assessment sale to China of two CANDU nuclear reactors and their construction, operation in China — Federal Court Act, s. 18.1(1) permitting anyone —directly affected— by matter in respect of which relief sought to apply for judicial review — Person who satisfies requirements for discretionary public interest standing, i.e. common law requirements, may seek relief under s. 18.1(1) even though not —directly affected— — In absence of explicit statutory provision excluding public interest applicants from Federal Court, incongruous to subject Court's ability to entertain judicial review applications to limitation not imposed on other courts — Common law requirements for public interest standing: (1) litigation must raise serious or justiciable issue; (2) applicant must have genuine interest in outcome or subject-matter of litigation; (3) must not be persons more directly affected than applicant who can reasonably be expected to litigate issues raised by applicant — (1) Intervener not discharging burden of showing applicant having no reasonable cause of action, as focusing on aspects of claim involving exercise of Court's discretion i.e. extension of limitation period; remedies sought — (2) Intervener, respondents not demonstrating Sierra Club lacked genuine interest in subject-matter of litigation by virtue of limited involvement with export of nuclear reactors — Theory applicant must demonstrate reasonably apprehended harm to vulnerable constituency to acquire public interest standing too narrow — Overlooks protection of constitutional precepts of rule of law, democratic accountability as reasons for extension of public interest standing beyond Attorney General — Sierra Club's interest in legal issues intimately linked to corporate objectives — Opposition to nuclear power not establishing that litigating for political reasons; not inconsistent with genuine interest in outcome — (3) Respondents, intervener not establishing on balance of probabilities other reasonable, effective ways in which subject-matter of judicial review application may be litigated — Court would be required to infer more appropriate applicants as no evidence before it of nature, scale of operations undertaken in Canada in connection with impugned project or whether those responsible will be required to clear regulatory hurdles, and if so whether local residents able to challenge sale, financing of reactors — Court also influenced by desire not to encourage preliminary motions on incomplete information.
Judges and Courts — Prothonotaries — Appeal from dismissal of motion to strike Sierra Club's application for judicial review of Ministers' refusal to subject to full environmental assessment sale to China of two CANDU nuclear reactors, their construction, operation in China — Discretionary orders of prothonotaries granting standing not raising questions vital to final issue of case — Court should defer to prothonotary's exercise of discretion to grant standing unless based on wrong principle.
This was an appeal, by way of motion under Federal Court Rules, 1998, rule 51, from the dismissal of a motion to strike the Sierra Club's application for judicial review of the respondent Ministers' refusal to subject to a full environmental assessment under the Canadian Environmental Assessment Act (CEAA) the sale to China of two CANDU nuclear reactors, and their construction and operation in China, on the ground that the applicant lacked standing. The partial funding of this project from public money was alleged to attract the statutory duty to conduct an environmental assessment, and in the absence of an environmental assessment, such funding was also said to be unlawful. The Sierra Club was constituted by letters patent as a national, non-profit organization concerned with the protection and restoration of the environment.
Federal Court Act, subsection 18.1(1) permits anyone "directly affected by the matter in respect of which relief is sought" to make an application for judicial review.
The issues were: (1) what was the standard of review; (2) whether the applicant had standing under Federal Court Act, subsection 18.1(1); and, (3) if not, whether the applicant met the common law criteria for the grant of public interest standing.
Held, the motion should be dismissed.
(1) While discretionary orders by prothonotaries striking out originating notices of motion for lack of standing may "raise questions vital to the final issue of a case", the same cannot be said of orders granting standing. The Court should therefore defer to a prothonotary's exercise of discretion to grant the applicant standing, and dismiss the motion to strike unless he exercised his discretion on the basis of a wrong principle.
(2) It has been held that a person who satisfies the requirements for discretionary public interest standing may seek relief under subsection 18.1(1), even though not "directly affected". In the absence of an explicit statutory provision excluding public interest applicants from the Federal Court, it would be so incongruous to subject the Court's ability to entertain applications for judicial review to a limitation not imposed on other courts, that the narrower interpretation of subsection 18.1(1), adopted by Rouleau J. in Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) , [1988] 1 F.C. 422, requiring a special interest in the legislation and special prejudice as a result of the illegal actions, in order to qualify for standing, should not be followed.
(3) Whether a public interest applicant should be granted standing is determined by reference to three factors: (i) whether the litigation raises a serious or justiciable issue; (ii) whether the applicant has a genuine interest in the outcome or subject-matter of the litigation; and, (iii) whether there are persons other than the applicant who are more directly affected and who can reasonably be expected to litigate the issues raised by the applicant. These should be approached not as a list of items to be checked off mechanically, but in light of the different policy considerations that the standing requirement addresses.
(i) The seriousness of the issues raised by a public interest applicant encompasses both the importance of the issues and the likelihood of their being resolved in favour of the applicant. When the question of standing is raised in a preliminary motion, a court should only consider whether, on the materials before it, the applicant has a fairly arguable case or has no reasonable cause of action. The burden is on the moving party in a preliminary motion to demonstrate that the applicant fails to satisfy even this low threshold test. The intervener fell well short of discharging this burden, largely because the aspects of the appellant's claim on which it focused involved the exercise of the Court's discretion. Such decisions are generally better made when the Court has before it all the relevant facts and has heard full legal arguments, rather than on a preliminary motion to strike. For example, even on the assumption that the limitation period for making an application for judicial review had expired, the Court has a discretion under subsection 18.1(2) to extend it. In view of the relatively short delay involved in this case, the public importance of the issues, and the difficulty that the Sierra Club had in obtaining information about the sale and whether it would be subjected to an environmental assessment, it was not certain, or even probable, that a judge of this Court hearing the application for judicial review would refuse to extend the limitation period ex post facto. In maintaining that the remedies sought by the Sierra Club were not available to it, the intervener again relied upon issues that were within the Court's discretion when deciding whether to grant relief, and as such were more appropriately addressed in the context of a consideration of the merits of the application for judicial review. The statutory orders that the Court may grant under subsection 18.1(3) are not necessarily encrusted with the same technicalities that at one time hampered the development of the common law remedies of judicial review. The application for judicial review raised a serious or justiciable issue and should not be struck out on this ground.
(ii) The "genuine interest" requirement helps ensure that those granted public interest standing have an experience and expertise with respect to the underlying subject-matter of the litigation. The intervener's theory of public interest standing that the applicant must demonstrate a reasonably apprehended harm to a vulnerable constituency, and it is the appropriate body to represent the constituency, was too narrow because it overlooked the fact that an important reason for the extension of public interest standing beyond the Attorney General was to protect the constitutional precepts of the rule of law and democratic accountability.
The next aspect of the "genuine interest" element of the public interest standing test was whether the Sierra Club had demonstrated a degree of involvement with the subject-matter of the application for judicial review that was sufficient to make it an appropriate body to institute this proceeding in the public interest. The subject-matter of the application was whether there was a statutory duty to subject the export of the CANDU nuclear reactors to China, and their construction and operation there, to a full environmental assessment, and whether the approval of the partial financing of the transaction from public funds was unlawful in the event that an assessment had not been conducted as required by the CEAA. The Sierra Club's interest in these issues stemmed from its concern with the protection of the environment, and its belief that the project under review may endanger the environment, especially in the event of an accident. Such interest was intimately linked to its corporate objectives. It was not confined to "legal process" as an abstract principle. Nor did its opposition to the use of nuclear power establish that it was litigating for political reasons, and it was not inconsistent with its having a genuine interest in the outcome of the application for judicial review. Litigants go to court to advance their own interests or those that they support; challenges to the legality of governmental action are normally fuelled by more than an abstract concern for ensuring the supremacy of the law. The intervener and respondents had not demonstrated that the Sierra Club lacked a genuine interest in the subject-matter of this litigation by virtue of its limited involvement with the export of nuclear reactors. The involvement of the Club and its Executive Director in the development and enforcement of the environmental assessment process in Canada, and in the applicability of that process to overseas projects, even though the validity of the POC Regulations may not be an issue in this litigation, indicated that it possessed the kind of general understanding that will be relevant to resolving the issues in dispute in this litigation. Given the absence of other opportunities for participating in the decision-making process, the letters written to Ministers expressing concern and requesting information about the export of the nuclear reactors to China, also suggested an involvement with the project that prevented the striking out of the application on the ground of lack of standing.
(iii) Residents of China living near the proposed site of the CANDU nuclear reactors, or those in states bordering China, who would be more directly affected by the project than the applicant, are unlikely to invoke the jurisdiction of this Court to test the legality under Canadian law of the respondents' refusal to subject the projects to an environmental assessment review. Therefore, the existence of such persons was not sufficient to deny public interest standing to the applicant. The intervener and the respondents also stated that the export of the nuclear reactors would involve activities that would affect some individuals more directly than the Sierra Club e.g. those living in the locality of uranium mines in Canada, or in the vicinity of production sites and or railway track or roads along which they would be carried. The case law is not clear on the question of whether a public interest litigant for judicial review has the burden of establishing that there are no other persons with a better claim to standing who are likely to bring the matter to court. This was, however, a motion to strike, and the moving party must prove that on the balance of probabilities the applicant has no fairly arguable case. In all the circumstances, the Court was not prepared to infer from the nature of the applicable legislation that there will be more appropriate applicants willing to undertake the substantial task of mounting legal challenges of the same scope as the applicant. This was largely because there was no evidence before the Court about the nature and scale of the operations that will be undertaken in Canada in connection with the impugned project, or whether those responsible for them will be required to clear regulatory hurdles that apply to that particular part of those activities, and if so, whether local residents will be able to challenge the sale and financing of the CANDU nuclear reactors, or only those associated activities that especially affect the particular individuals concerned. The Court was also influenced by the consideration that the law should minimize the encouragement that it gives to litigants to bring preliminary motions, often on incomplete information, which, if unsuccessful, create an undesirable multiplicity of proceedings, and add unduly to the expense of litigation and to the time taken to dispose of it. The moving parties had not established on the balance of probabilities that there were other reasonable and effective ways in which the subject-matter of the application for judicial review may be litigated. The application for judicial review could not be struck on the ground that it was unnecessary to confer public interest standing on the applicant in order to protect the rule of law.
statutes and regulations judicially considered
Canada Assistance Plan, R.S.C. 1970, c. C-1.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 2(1) "federal authority", "project", 5(1).
Export Development Act, R.S.C., 1985, c. E-20, s. 23 (as am. by S.C. 1993, c. 26, s. 8).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(2).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(1) (as enacted by S.C. 1990, c. 8, s. 5), (2) (as enacted idem), (3) (as enacted idem).
Federal Court Rules, 1998, SOR/98-106, r. 51.
Immigration Act, R.S.C., 1985, c. I-2.
Projects Outside Canada Environmental Assessment Regulations, SOR/96-491.
cases judicially considered
applied:
Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425; [1993] 1 C.T.C. 186; (1993), 93 DTC 5080; 149 N.R. 273 (C.A.); Sunshine Village Corp. v. Superintendent of Banff National Park (1996), 44 Admin. L.R. (2d) 201; 20 C.E.L.R. (N.S.) 171; 202 N.R. 132 (F.C.A.).
not followed:
Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare), [1988] 1 F.C. 422; (1987), 43 D.L.R. (4th) 273; 16 C.I.P.R. 55; 18 C.P.R. (3d) 206; 16 F.T.R. 81 (T.D.); affd (1990), 68 D.L.R. (4th) 761; 31 C.P.R. (3d) 29; 107 N.R. 195 (F.C.A.).
distinguished:
Canadian Union of Public Employees, Local 30 et al. v. WMI Waste Management of Canada Inc. (1996), 178 A.R. 297; 34 Admin. L.R. (2d) 172 (C.A.); Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Shiell v. Amok Ltd. (1987), 27 Admin. L.R. 1; 2 C.E.L.R. (N.S.) 219; 58 Sask. R. 141 (Q.B.).
considered:
Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229; (1993), 102 D.L.R. (4th) 696; 10 C.E.L.R. (N.S.) 204; 61 F.T.R. 4 (T.D.); Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Nova Scotia Board of Censors v. Attorney General (N.S.), [1978] 2 S.C.R. 662; (1978), 25 N.S.R. (2d) 128; 84 D.L.R. (3d) 1; 44 C.C.C. (2d) 316; 19 N.R. 570; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; (1992), 88 D.L.R. (4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R. (2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241; R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd, [1995] 1 All ER 611 (Q.B.D.) Shiell v. Atomic Energy Control Board (1995), 33 Admin. L.R. (2d) 122; 17 C.E.L.R. (N.S.) 286; 98 F.T.R. 75 (F.C.T.D.).
referred to:
James River Corp. of Virginia v. Hallmark Cards, Inc. (1997), 72 C.P.R. (3d) 157; 126 F.T.R. 1 (F.C.T.D.); Iron v. Saskatchewan (Minister of Environment & Public Safety) (1993), 10 C.E.L.R. (N.S.) 165; 107 Sask. R. 297 (Q.B.); Reg. v. Inland Revenue Comrs., Ex parte National Federation of Self-Employed and Small Business Ltd., [1982] A.C. 617 (H.L.); Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), 161 D.L.R. (4th) 225; 126 C.C.C. (3d) 257; 111 O.A.C. 51(Ont. C.A.); Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; (1993), 107 D.L.R. (4th) 634; 18 C.R.R. (2d) 99; 160 N.R. 161; 67 O.A.C. 81; Energy Probe v. Canada (Attorney General) (1989), 68 O.R. (2d) 449 (C.A.); Inshore Fishermen's Bonafide Defense Fund Association v. Canada (1994), 132 N.S.R. (2d) 370; 117 D.L.R. (4th) 56; 28 C.P.C. (3d) 291 (C.A.).
APPEAL, by way of motion under Federal Court Rules, 1998, rule 51, from the dismissal of a motion to strike the Sierra Club's application for judicial review of the respondent Ministers' refusal to subject to a full environmental assessment under the Canadian Environmental Assessment Act the sale to China of two CANDU nuclear reactors, and their construction and operation in China, on the ground that the applicant lacked standing. Motion dismissed.
appearances:
Timothy J. Howard for applicant.
Brian Saunders and Sanderson Graham, Ottawa, for respondents.
J. Brett G. Ledger and Peter J. Chapin for intervener.
solicitors of record:
Sierra Legal Defence Fund, Vancouver, for applicant.
Deputy Attorney General of Canada for respondents.
Osler Hoskin & Harcourt, Toronto, for intervener.
The following are the reasons for order rendered in English by
Evans J.:
A. INTRODUCTION
In January 1997 the Sierra Club of Canada (hereinafter the Sierra Club) made an application for judicial review pursuant to subsection 18.1(1) of the Federal Court Act, R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5) seeking various forms of relief in respect of the refusal of the respondent Ministers to subject to a full environmental assessment under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (hereinafter the CEAA) the sale to China of two CANDU nuclear reactors and their construction and operation in China. The partial funding of this project by the Ministers from public money is alleged to attract the statutory duty to conduct an environmental assessment, and in the absence of an environmental assessment such funding is also said to be unlawful. Atomic Energy of Canada Limited (hereinafter AECL), the vendor of the reactors, is an intervener in the application.
AECL brought a motion before Giles A.S.P. to strike out the applicant's originating notice of motion on the ground that the applicant was not "directly affected by the matter in respect of which relief is sought", and otherwise lacks standing to institute the application for judicial review under subsection 18.1(1) of the Federal Court Act . On June 25, 1998, Giles A.S.P. dismissed the motion to strike. This is a motion brought by AECL and the Ministers under rule 51 of the Federal Court Rules, 1998, SOR/98-106, appealing that decision.
It will avoid unnecessary confusion if I refer to the parties throughout these reasons by the roles that they play in the principal proceeding, the application for judicial review. Hence, I shall refer to the Sierra Club as the applicant, although it is, of course, the respondent in this motion, and to AECL as the intervener and the Ministers as the respondents, although they are the applicants for this motion.
B. THE BACKGROUND
I note at the outset that, since this is a preliminary motion, the parties have not developed the facts or the legal submissions as fully as if this were the application for judicial review itself. While this is understandable, the absence of a complete record presents certain difficulties in the determination of aspects of the issue in dispute in this proceeding, namely whether the applicant has standing to commence an application for judicial review. Subject to the gaps in both the facts and the law, some of which I refer to later, the essential background to this motion is as follows.
(1) The applicant
In an affidavit sworn on January 20, 1997 in connection with the application for judicial review, Ms. Elizabeth E. May, Executive Director of the Sierra Club, stated that the Club was constituted by letters patent in 1992 as a national, non-profit organization concerned with the protection and restoration of the environment.
She further stated that the Sierra Club has an established interest in the federal environmental assessment process, and in ensuring compliance with the provisions of the CEAA. Prior to the incorporation of the Sierra Club, Ms. May had appeared before a parliamentary committee considering the Bill that became the CEAA.
In addition, the Club has played an active role with respect to nuclear power issues and is a member of a national umbrella group, the Campaign for Nuclear Phaseout, which has been in existence since 1989. More particularly, the board of directors of the Sierra Club has included in its current priorities the export of CANDU nuclear reactors and the environmental assessment of projects outside Canada that are funded with public money provided by the Government of Canada or its agencies. Ms. May herself has been a member of a subcommittee of the Minister of the Environment's Regulatory Advisory Committee that was consulted on the development of the Projects Outside Canada Environmental Assessment Regulations (hereinafter the POC Regulations) [SOR/96-491] which govern the application to such projects of the statutory provisions for environmental assessment.
The applicant's motion record contained a number of letters that, in her capacity as the Executive Director of the Sierra Club, Ms. May wrote in 1995 and 1996 to various Ministers, including the respondent Ministers and the Minister of the Environment. The general thrust of these letters was to express the Sierra Club's view that the CEAA applied to the sale of CANDU nuclear reactors to China, and that it was unlawful for the Minister of Finance to fund this project from public money in the absence of a full environmental assessment of the construction and operation of the reactors.
There is no evidence in the record indicating the size, geographical spread across Canada or representative nature of the Sierra Club's membership. Nor is there any evidence about the composition of its board of directors, which might have revealed the extent to which the Club's policies, priorities and activities are supported by individuals from across the political spectrum, and the range of expertise that members of the board bring to the direction of the Club.
(2) The application for judicial review
On November 26, 1996, the Prime Minister's Office issued a news release announcing the sale of two CANDU-6 nuclear reactors to China, where they would be constructed and operated. A contract of sale was signed in Shanghai between AECL and the China National Nuclear Corporation. The Minister for International Trade and the Minister of Finance authorized the Export Development Corporation to finance a part of this transaction pursuant to section 23 of the Export Development Act, R.S.C., 1985, c. E-20 [as am. by S.C. 1993, c. 26, s. 8].
The application for judicial review focuses on a letter dated December 21, 1996 in which the Minister of International Trade, with the concurrence of the Minister of Finance, advised Ms. May that, contrary to the position that she had advanced in her letters, they took the view that the full environmental assessment process in the CEAA was not trigged by their approval of public funding for the sale of the nuclear reactors.
As a result, the Sierra Club made an application for judicial review seeking various declarations as to the applicability of the CEAA to the project, and the lawfulness of the expenditures of public money that had been approved by the Ministers to finance the sale of the reactors. Other forms of relief requested in the application include orders setting aside the funding decision and prohibiting the provision of financial assistance, and an order in the nature of mandamus requiring the Ministers to ensure that an environmental assessment is conducted in accordance with the CEAA.
Counsel for the applicant has not set out in detail the legal arguments that the Sierra Club will make in support of its application for judicial review. However, the principal outlines of the argument appear to be as follows. First, subsection 5(1) of the CEAA defines the circumstances in which the assessment process applies; as relevant to this proceeding it provides:
5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority
. . .
(b) makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except where the financial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty or impost imposed under any Act of Parliament, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the Act, regulation or order that provides the relief to be carried out; [Emphasis added.]
Second, subsection 2(1) of the CEAA defines "federal authority" to mean "(a ) a Minister of the Crown in right of Canada", but does not include "a Crown corporation within the meaning of the Financial Administration Act". Third, subsection 2(1) defines a "project" to which subsection 5(1) applies as meaning, "(a ) in relation to a physical work, any proposed construction, operation . . . decommissioning . . . or other undertaking in relation to that physical work".
Fourth, to the extent that the POC Regulations, registered on November 26, 1996, exempt projects outside Canada from the environmental assessment process prescribed by the CEAA, they cannot apply to the sale of the CANDU nuclear reactors because this occurred before the Regulations were published in the Canada Gazette, Part II: enabling legislation is normally presumed not to authorize the promulgation of retroactive subordinate legislation.
In their written material and oral submissions, the intervener and the respondents indicated the lines along which their response to the application for judicial review is likely to be developed. First, the application for judicial review is out of time: time runs from the signing of the contract of sale on November 26, 1996, and not December 21, 1996 when Ms. May received the "courtesy letter" from the Ministers stating their view that there was no legal obligation to subject this project to an environmental assessment. The applicant's originating notice of motion was filed on January 20, 1997, more than 30 days after the decision being impugned, and was thus time-barred by subsection 18.1(2) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act .
Second, the applicant is not entitled to several of the forms of relief that it is seeking. In particular, the Court will not grant the declaratory or injunctive relief in the absence of evidence of likely future harm that will result from the impugned conduct. Nor is mandamus an available remedy since the respondents owe no legal duty to the applicant with respect to the conduct of an environmental assessment under the CEAA.
Third, the substantive aspects of the response to the Sierra Club's application for judicial review include the fact that the AECL and the Export Guarantee Corporation are both Crown corporations, and are thus not subject to the CEAA by virtue of their exclusion from the definition of "federal authority" in subection 2(1). Moreover, it was said, the applicant's case focuses on the public funding approved by the Ministers, so that off-shore construction is not the issue, and the POC Regulations are thus irrelevant to the application.
C. THE ISSUES
(1) What is the standard of review to be applied on an appeal from Giles A.S.P.'s decision to dismiss the motion to strike out the applicant's originating notice of motion on the ground that the applicant lacks standing?
(2) Does the provision in subsection 18.1(1) of the Federal Court Act that an application for judicial review may be made "by anyone directly affected by the matter in respect of which relief is sought" preclude the Court from entertaining applications by applicants, such as the Sierra Club, who do not allege that the administrative action in dispute has either violated their legal right or interests, or inflicted special damage on them?
(3) If not, does the applicant meet the common law criteria for the grant of public interest standing?
D. ANALYSIS
(1) The standard of review
The leading authority on the standard of review to be applied to a discretionary decision by a prothonotary, such as, in this case, the grant of public interest standing, is Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), where MacGuigan J.A. said (at page 463):
. . . discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
While discretionary orders by prothonotaries striking out originating notices of motion for lack of standing may "raise questions vital to the final issue of a case" (James River Corp. of Virginia v. Hallmark Cards, Inc. (1997), 72 C.P.R. (3d) 157 (F.C.T.D.), at pages 159-160 (per Reed J.)), I do not think that the same can be said of orders granting standing. Accordingly, I should defer to Giles A.S.P.'s exercise of discretion to grant the applicant standing, and to dismiss the motion to strike, unless I am satisfied that he exercised his discretion on the basis of a wrong principle.
(2) The standing of the applicant
Some preliminary observations are apposite before I examine in more detail the arguments advanced by the intervener and the respondents. First, the applicant has not contended that the administrative action that it impugns in the application for judicial review affects the private legal rights of the Sierra Club or its members, or inflicts on either it or them "special damage" that is over and above that sustained by the public at large. Thus, the applicant's claim to standing is based solely on the appropriateness of the Sierra Club as a representative of the public interest to bring before the Court the allegations that the respondents are in breach of their statutory duty under the CEAA. The grant of standing in such circumstances is, of course, a matter within the discretion of the Court: Finlay v. Canada (Minister of Finance) , [1986] 2 S.C.R. 607.
Second, it was not suggested by the intervener or the respondents that the Sierra Club ought first to have asked the Attorney General of Canada, as the protector of public rights, to launch a challenge to the Ministers' refusal to subject the sale of the CANDU nuclear reactors to an environmental assessment. Given that the decisions under review were taken by the Attorney General's cabinet colleagues, who presumably had the benefit of legal advice from lawyers in the Justice Department, such a request would likely be a futile formality.
Third, when the issue of standing is raised in response to an application for judicial review, the burden is on the applicant to establish that she or he has standing to institute the proceedings. However, in this case, the issue of standing is raised in a preliminary motion to strike the applicant's originating notice of motion. In such motions the onus is normally on the moving party to establish on the balance of probabilities that the application lacks merit. It would therefore seem to follow that on a motion to strike an application on the ground that the applicant lacks standing, the burden is on the moving party to satisfy the Court that the applicant does not have standing.
In my view, a court should be prepared to terminate an application for judicial review on a preliminary motion to strike for lack of standing only in very clear cases. At this stage of the proceeding, the Court may not have all the relevant facts before it, or the benefit of full legal argument on the statutory framework within which the administrative action in question was taken. To the extent that the strength of the applicant's case, and other factors, are relevant to the ground of discretionary standing, the Court may not be in a position to make a fully informed decision that would justify a denial of standing. See, for example, Iron v. Saskatchewan (Minister of Environment & Public Safety) (1993), 10 C.E.L.R. (N.S.) 165 (Sask. Q.B.), at pages 166-168.
Of course, when the Court has sufficient material to enable it to make a determination, then it may properly deny standing on a preliminary motion: Finlay v. Canada (Minister of Finance), supra, at pages 615-617. However, the willingness of a court to be so satisfied at this stage may depend on the range of factors that it considers relevant to determine whether the applicant has standing, including the strength of the applicant's case, the nature of the relief sought, the ground of review or an analysis of the statute to determine the interests that it is intended to protect: Reg. v. Inland Revenue Comrs., Ex parte National Federation of Self-Employed and Small Business Ltd., [1982] A.C. 617 (H.L.).
(i) Standing and the Federal Court Act, subsection 18.1(1)
The first argument made by the intervener was that standing to make an application for judicial review in the Federal Court is governed by subsection 18.1(1) of the Federal Court Act which provides that:
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. [Emphasis added.]
Counsel for the intervener contended that, by definition, a person who relies on public interest standing, rather than on the infringement of a private right or the infliction of special damage, is not "directly affected", and therefore lacks standing under subsection 18.1(1). He also referred to case law involving the words "directly affected" in other statutes, where they had been interpreted as requiring the applicant to have an interest similar to that required at common law for a person to be eligible for injunctive or declaratory relief on the basis of "private right" standing.
In particular, in Canadian Union of Public Employees, Local 30 et al. v. WMI Waste Management of Canada Inc. (1996), 178 A.R. 297 (C.A.) it was held that a union opposing an application for an approval to operate a waste management facility was not "directly affected" by the grant of approval so that it lacked standing to appeal to a tribunal. However, the interpretation of "directly affected" in the context of a statutory right of appeal to a tribunal is not in my view a reliable indication of the meaning to be attributed to the scope of subsection 18.1(1), where the exclusion of public interest litigants would significantly limit the Court's jurisdiction to review the legality of federal administrative action.
Counsel frankly conceded that Sunshine Village Corp. v. Superintendent of Banff National Park (1996), 44 Admin. L.R. (2d) 201 (F.C.A.) was against him. In that case, which also concerned a challenge by a public interest group concerned with environmental protection, Desjardins J.A. said (at pages 222-223):
It is evident from the facts that the appellant is not "directly affected by the matter in respect of which relief is sought", namely with regard to the construction agreement of September 17, 1995, and the Charest approval of August 31, 1992. CPAWS does not, therefore, have standing as of right.
I agree, however, with Reed J. in Friends of the Island Inc. v. Canada (Minister of Public Works) [[1993] 2 F.C. 229 (T.D.)] that it was not the intention of Parliament, by including the words "directly affected" in subsection 18.1(1) of the Federal Court Act , to restrict the public interest standing to the pre-Thorson, Borowski, Finlay test. She suggested that:
. . . the wording in subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted.
Thus Reed J. reasoned that if an applicant is able to meet the above criteria and, assuming that there is a justiciable issue and no other effective and practical means of getting the issue before the courts, standing will be granted.
Counsel for the intervener also brought to my attention an earlier decision, Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare), [1988] 1 F.C. 422 (T.D.), at page 435, in which Rouleau J. held that the plaintiff did not qualify for public interest standing because it did not demonstrate that:
. . . it has a special interest in the legislation and that it will suffer special prejudice as a result of the illegal actions.
The decision was affirmed in the Federal Court of Appeal ((1990), 68 D.L.R. (4th) 761), where it was said that the requirement in the former subsection 28(2) of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] that applicants who are directly affected by a decision may seek to have it set aside was similar to the common law rules for standing. However, the Court did not expressly address the issue of public standing.
For this reason, and because the test formulated by Rouleau J. seems to me virtually identical to that for standing as of right, I do not regard Glaxo as an authoritative guide to standing for the purpose of the current subsection 18.1(1). In contrast, Sunshine Village, supra, clearly holds that a person who satisfies the requirements for discretionary public interest standing may seek relief under subsection 18.1(1), even though not "directly affected". In my opinion, this is the preferable view, even though the language of subsection 18.1(1) suggests that only those who meet the pre-Finlay test may seek judicial review. In the absence of an explicit statutory provision excluding public interest applicants from the Federal Court, it would be so incongruous to subject the Court's ability to entertain applications for judicial review to a limitation not imposed on other courts, that I am unwilling to adopt the narrower interpretation of subsection 18.1(1) for which the intervener in this case has contended.
In the alternative, counsel argued, Reed J.'s references in Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229 (T.D.), at page 283, to "the particular circumstances of the case" and "the type of interest which the applicant holds" as factors relevant to the grant of status or standing indicate that a broader range of considerations may be taken into account under subsection 18.1(1) than those relevant to determining public interest standing at common law.
In the absence of any authority that clearly addresses this point, I would be reluctant to infer from the words of Reed J. an intention to introduce a test for the grant of public interest standing in the Federal Court different from that applied by other courts in Canada. Once it has been decided that the words "directly affected" do not exclude those who apply for judicial review as public interest applicants, I think that it would be imprudent to add a new layer of complexity to a test that already is quite flexible. Moreover, the Finlay test is not confined to "the interest which the applicant holds", but also includes a consideration of the seriousness of the issue raised by the applicant, and a comparison of the applicant's interest with the interest of other persons and the likelihood of their litigating the matter if the applicant is denied standing. Accordingly, it is not at all clear that Reed J. intended to differentiate the test for public interest standing under subsection 18.1(1) of the Federal Court Act from that established at common law.
(ii) Public interest standing at common law
Whether a public interest applicant should be granted standing is determined by reference to the three well-known factors established by the Supreme Court of Canada in Finlay, supra, and the preceding trilogy of cases dealing with public interest standing and constitutional challenges, namely, Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575 and Nova Scotia Board of Censors v. Attorney General (N.S.), [1978] 2 S.C.R. 662.
Thus, a reviewing court must consider whether the litigation raises a serious or justiciable issue; whether the applicant has a genuine interest in the outcome or subject-matter of the litigation; and whether there are persons other than the applicant who are more directly affected and who can reasonably be expected to litigate the issues raised by the applicant. These should be approached not, as a list of items to be checked off mechanically, but in light of the different policy considerations that the standing requirement addresses: Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), 161 D.L.R. (4th) 225 (Ont. C.A.).
(a) a serious or justiciable issue
The respondent Ministers conceded that the applicant satisfied this element of the public interest standing test, but the intervener did not. Counsel for the intervener did not argue that the issues raised in the application for judicial review were non-justiciable, in the sense that they were not appropriate for determination by a court, as opposed to another branch of government. Rather, the argument was that the applicant was so unlikely to be successful on the merits on the application for judicial review that it should be denied standing.
It seems now to be settled law that the seriousness of the issues raised by a public interest applicant encompasses both the importance of the issues and the likelihood of their being resolved in favour of the applicant. Given the discretionary nature of public interest standing, and its concern to ensure that scarce public resources are not squandered and other litigants are not subjected to further delay, it seems appropriate that the merits of the claim should be taken into consideration: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675.
However, when the question of standing is raised in a preliminary motion, such as is the case here, a court should not subject the strength of an applicant's claim to a level of scrutiny that probes more deeply than considering whether, on the materials before the court, the applicant has a fairly arguable case or, putting it the other way, has no reasonable cause of action: Energy Probe v. Canada (Attorney General) (1989), 68 O.R. (2d) 449 (C.A.); Canadian Civil Liberties Assn. v. Canada (Attorney General), supra. The burden will be on the moving party in a preliminary motion to demonstrate that the applicant fails to satisfy even this low threshold test.
The intervener in this case falls well short of discharging this burden, in large part because the aspects of the appellant's claim on which it focuses involves the exercise of discretion by the Court. In my view, such decisions are generally better made when the Court has before it all the relevant facts and has heard full legal arguments, rather than, as here, on a preliminary motion to strike.
Thus, even on the assumption that, as the intervener contends, the limitation period for making an application for judicial review started on November 26, 1996, when the Prime Minister announced the sale of the CANDU reactors and thereby "communicated" the decision within the meaning of subsection 18.1(2) of the Federal Court Act , rather than, as the applicant alleges, on December 21, 1996, when it was first advised by the Ministers that they had decided that the CEAA did not apply to the sale, the Court has a discretion under subsection 18.1(2) to extend the 30-day period within which an application must normally be made. In view of the relatively short delay involved in this case, the public importance of the issues and the difficulty that the Sierra Club had in obtaining information about the sale and whether it would be subjected to an environmental assessment, it is by no means certain, or even probable, that a judge of this Court hearing the application for judicial review would refuse to exercise her or his discretion to extend the limitation period ex post facto.
The intervener also maintained that the remedies sought by the Sierra Club were simply not available to it, and that its application was thus bound to fail. Again, the intervener relied upon issues that are within the discretion of the Court when deciding whether to grant relief, and as such are more appropriately addressed in the context of a consideration of the merits of the application for judicial review. For example, the intervener maintained that the applicant had produced no evidence that any harm is likely to result from the allegedly unlawful refusal of the respondents to subject to an environmental assessment review under the CEAA the sale to China of the nuclear reactors, and their construction and operation in China. The intervener stated that there is a legally required environmental assessment process in place in China, and there was no evidence that this would not be adequate to protect the public from a potentially hazardous operation.
Counsel relied on Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441 for the proposition that, in the absence of a showing of likely harm, the Court when hearing the application for judicial review would not grant the declaratory or injunctive relief sought by the applicant.
In my opinion, this argument is untenable. Operation Dismantle is easily distinguishable. In that case, the plaintiff based its claim that the cabinet was acting unlawfully on the ground that permitting weapons testing in Canada would put at risk the constitutional right guaranteed by section 7 of the Canadian Charter of Rights and Freedoms [being part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] not to be deprived of life and security of the person. Since the Court held that whether the testing would increase the danger of a military attack on Canada was not susceptible of proof in a court of law, the plaintiff's claim collapsed.
In the case before me, however, the illegality alleged by the applicant is a breach of the statutory duty imposed on a public body to conduct an environmental assessment. While the grant of declaratory relief is within the discretion of the Court, I know of no authority for the proposition that the applicant must prove that the alleged illegality will cause future harm in order to be granted public interest standing. Of course, a court may refuse relief in the exercise of its discretion if satisfied that the remedy sought would have no practical effect or utility. But again, this is not a matter that can be properly decided in the context of a preliminary motion to strike.
Finally, the intervener argued that the order of mandamus that the applicant seeks to require the respondent to ensure that the CANDU sale is subject to an environmental assessment in accordance with the CEAA could not be granted because mandamus is only issued to those to whom respondents owe a legal duty. However, whether a more stringent test of standing applies to mandamus than to other remedies must be regarded as doubtful after Finlay.
In any event, the statutory orders that this Court may grant under subsection 18.1(3) [as enacted by S.C. 1990, c. 8, s. 5], while doubtless modelled on the forms of relief available under the prerogative orders and the declaration and injunction, are not necessarily encrusted with the same technicalities that at one time hampered the development of the common law remedies of judicial review. Again, to the extent that public interest standing should be granted more sparingly when the relief sought is mandatory in nature is simply one of the facts to be considered in the exercise of the discretion of the Court when the application for judicial review is heard on its merits.
I conclude, therefore, that the application for judicial review raises a serious or justiciable issue and should not be struck out on this ground.
(b) a genuine interest
Whether the applicant has a genuine interest in the outcome of the application for judicial review or, to use the words of subsection 18.1(1), "by the matter in respect of which relief is sought", is a more difficult question. The intervener advanced a novel theory that it claimed explained the case law to date on this aspect of the requirements for public interest standing. The argument is that the following test may be inferred from the results of the cases, if not always from the reasons for judgment: "Has the applicant demonstrated a reasonably apprehended harm to a vulnerable constituency, and is it the appropriate body to represent that constituency? Only if the answer to this question is in the affirmative, will the applicant have demonstrated a `genuine interest' that will support the grant of public interest standing."
For example, standing could be said to have been granted in Finlay v. Canada (Minister of Finance), supra, because Mr. Finlay, a recipient of provincial welfare benefits, was an appropriate person to represent other welfare recipients, a vulnerable group, who might reasonably fear that, if the federal government continued to fund Manitoba's welfare program even though the legislation did not meet the national standards then prescribed in the Canada Assistance Plan [R.S.C. 1970, c. C-1] (CAP), they would be denied benefits at the level and on the terms guaranteed by the CAP.
Similarly, in Canadian Council of Churches, supra, the Council was recognized as having a "genuine interest" in the validity of certain provisions of the Immigration Act [R.S.C., 1985, c. I-2] because there was a reasonable apprehension that, if allowed to remain in place, these provisions would harm the interests of refugee claimants, a vulnerable group, and that the Council's track record of involvement with the legal rights and well-being of refugees made them an appropriate body to represent the public interest in this litigation.
I agree that one function performed by the "genuine interest" requirement is to help to ensure that those granted public interest standing have an experience and expertise with respect to the underlying subject-matter of the litigation that will inform their written and oral submissions made in support of the application for judicial review, and will assist the Court to reach an appropriate result. I consider below whether the Sierra Club has a genuine interest in this sense.
However, I do not agree that the case law supports, even implicitly, the notion that public interest standing is only ever granted to protect members of vulnerable groups from reasonably apprehended harm. No doubt there will continue to be instances in which standing is granted in such situations: members of vulnerable groups are, after all, often not in a position to defend their interests through litigation, and it is therefore quite appropriate that organizations that have an involvement with the issues should be allowed to litigate on their behalf.
But in my view, the intervener's theory of public interest standing is too narrow because it overlooks the fact that an important reason for the extension of public interest standing beyond the Attorney General has been to protect the constitutional precepts of the rule of law and democratic accountability. If public interest standing were confined in the manner suggested by the intervener, then a wide range of administrative action would potentially be exempted from the restraints of legality, and the need to comply with the duly expressed will of Parliament. However, it may also be said that, since the public interest in the global environment is very fragmented, public interest groups with a relevant track record will often be the only likely litigants willing and able to institute legal proceedings to ensure that statutory duties are discharged by the public officials upon whom they have been imposed.
The next aspect of the "genuine interest" element of the public interest standing test is whether the Sierra Club has demonstrated a degree of involvement with the subject-matter of the application for judicial review that is sufficient to make it an appropriate body to institute this proceeding in the public interest.
The subject-matter of the application, or "the matter in respect of which relief is sought", is whether there is a statutory duty to subject the export of the CANDU nuclear reactors to China, and their construction and operation there, to a full environmental assessment, and whether the approval of the partial financing of the transaction from public funds is unlawful in the event that an assessment has not been conducted as required by the CEAA.
The Sierra Club's interest in these issues of legality stems from its concern with the protection of the environment, and its belief that the project under review may endanger the environment, especially in the event of an accident. The Sierra Club takes the position that the CEAA and the environmental assessment process that it mandates are important legal and administrative tools for ensuring a degree of transparency and public accountability that will help to avoid the making of decisions that may prove to be environmentally costly.
In other words, the Sierra Club's interest in the legal issues that they raise is intimately linked to its corporate objectives. Accordingly, I do not accept the intervener's submission that the Sierra Club's interest is confined to "legal process" as an abstract principle. Similarly, I do not accept their submission that the Sierra Club's opposition to the use of nuclear power establishes that it is litigating for political reasons, and is inconsistent with its having a genuine interest in the outcome of the application for judicial review. Litigants go to court to advance their own interests or those that they support; challenges to the legality of governmental action are normally fuelled by more than an abstract concern for ensuring the supremacy of the law.
The intervener and the respondents sought to show that the applicant had no genuine interest by arguing that the actual experience of the Sierra Club, and of its Executive Director, Ms. May, was significantly narrower than the project that is challenged in this case, namely the export of nuclear reactors to China, their financing, and the activities that may be carried out in Canada in order to fulfil the contract.
The intervener and the respondents acknowledge that the Sierra Club or its Executive Director has been actively involved in the development of the CEAA and of the POC Regulations, although the validity of the Regulations seems no longer to be an issue in the case. They note, too, that the applicant is a member of a coalition dedicated to the phasing out of the use of nuclear power and that the Sierra Club's stated policies include a concern with nuclear power and the export of reactors.
But, they say, statements of corporate objectives, priorities and concerns are no substitute for actual involvement with the issues that underlie litigation. It is the expertise, understanding and insights that come from hands-on experience that enables an applicant to make a constructive contribution to the resolution of the issues in dispute in the litigation, and thus justifies its grant of public interest standing. In a word, the Sierra Club has no adequate track-record relevant to the issues in this case that gives it "a genuine interest" in the subject-matter of this litigation.
The intervener and the respondents relied heavily on Shiell v. Atomic Energy Control Board (1995), 33 Admin. L.R. (2d) 122 (F.C.T.D.) to demonstrate that the Sierra Club lacks a genuine interest. In that case, the applicant sought to set aside an amendment by the Atomic Energy Control Board of an operating licence held by Cameco Corp. enabling it to construct an expanded tailing management system in connection with the operation of its uranium mine and mill at Key Lake in Saskatchewan. The applicant, Ms. Shiell, had a long record of appearances at hearings held with respect to the development of uranium mining in Saskatchewan. Heald D.J. dismissed the application on the ground that the applicant lacked standing. He said (at page 127):
As in Amok, the applicant does not have a direct personal interest in these proceedings, and accordingly, the decision in Finlay v. Canada (Minister of Finance), [[1986] 2 S.C.R. 607] has no relevance. She lives at Nipawin Saskatchewan, several hundred miles from the respondent's Key Lake operation. Her interest is neither direct nor personal. The decision a quo will not affect her in any way different from that felt by any other member of the general public.
Let me make three points about this decision. First, with all respect, a requirement of a "direct personal interest" is not now the test required by the common law for public interest standing: "genuine interest" is significantly broader. "Direct personal interest" is much closer to the test used to determine whether a person has standing as of right, on the ground that the person's legal rights or interests are affected, or that the person has sustained harm that is different from that suffered by other members of the public.
Second, the case of Shiell v. Amok Ltd. (1987), 27 Admin. L.R. 1 (Sask. Q.B.) on which Heald D.J. relied is distinguishable from the case at bar on the ground that, in that case, Barclay J. regarded the dispute as one that was essentially between two private individuals, and not as one involving an allegation of unlawful conduct by agencies of government. Barclay J. stated [at page 13]: "[p]ublic interest standing should not be conferred to enable a party to sue a private individual or a corporation." Accordingly, he applied the standing test applicable to the tort of public nuisance by asking whether the plaintiff had suffered special damage over and above that of the public at large.
Third, Shiell is probably best understood as a case in which there were persons more directly affected than the plaintiff, because they lived much closer to the uranium mine. This case is therefore more relevant to the third element of the public interest standing test than to whether the plaintiff has a genuine interest.
In support of its contention that the Sierra Club's level of involvement is sufficient to demonstrate that it has a genuine interest in the subject-matter of this litigation, its counsel relied upon Sunshine Village Corp., supra, where the Canadian Parks and Wilderness Society (CPAWS) was granted standing to challenge the legality of a proposed development in Banff National Park, largely on the basis of the applicant's track record of general interest in preserving [at page 223] "the integrity of ecosystem in Canada's parks and wilderness areas." This seems to me quite similar to the facts of the present case.
Also relevant here is R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd, [1995] 1 All ER 611 (Q.B.D.), where an English court granted standing to the applicant, a public interest group concerned with issues of overseas aid and development, to challenge the legality of funding by the respondent of the construction of a dam and hydro electric power station on the Pergau River in Malaysia. The applicant's members and supporters had engaged in lobbying and letter writing in connection with a variety of aid and development issues over the years; the applicant was also a member of a broader organization that brought together academics and campaigners interested in these issues.
In my view, the intervener and respondents have not demonstrated that the Sierra Club lacks a genuine interest in the subject-matter of this litigation by virtue of its limited involvement with the export of nuclear reactors. Although the Sierra Club of Canada has only been in existence since 1992 it is able to draw upon the experience of affiliated organizations. The involvement of the Club and its Executive Director in the development and enforcement of the environmental assessment process in Canada, and in the applicability of that process to overseas projects, even though the validity of the POC Regulations may not be an issue in this litigation, indicates that it possesses the kind of general understanding that will be relevant to resolving the issues in dispute in this litigation. I am also satisfied that, given the absence of other opportunities for participating in the decision-making process, the letters written by Ms. May to Ministers expressing concern and requesting information about the export of the nuclear reactors to China, also suggest an involvement with the project that prevents the striking out of the application on the ground of lack of standing.
(c) Is there a more appropriate applicant?
Even if an applicant raises a serious issue and has a genuine interest in the subject-matter of an application, as I have found that the applicant does in this case, public interest standing may still be denied if there are other individuals who are more directly affected than the applicant, and are reasonably likely to institute proceedings to challenge the administrative action in question.
The rationale for this requirement is that, if such persons exist, it is unnecessary to afford standing to a public interest applicant in order to uphold the principle of the rule of law by ensuring that the legality of government action is not effectively insulated from judicial review. If rule of law considerations do not require the extension of standing to an applicant, then the public interests in enabling government to conduct public business without interference, protecting the resources committed to the administration of justice and avoiding further delay to other litigants will prevail. In addition, those most directly affected by administrative action are often in the best position to bring to the court the information necessary for an appropriate resolution of the dispute.
A distinction is sometimes made in this context between "regulatory" and "declaratory" legislation. It is generally easier for an applicant to obtain public interest standing when the administrative action in question has been taken pursuant to declaratory legislation because, by definition, it does not impose duties or liabilities upon defined individuals or groups. It thus tends to affect members of the public in a similar manner. In contrast, standing to challenge regulatory legislation or administrative action taken pursuant to it will normally only be afforded to those who are subject to the legal duties or liabilities imposed by it. Such persons are more directly affected than others, and there is consequently no need to extend public interest standing to persons who are not in these categories in order to ensure that issues of legality are subject to judicial review.
In Shiell v. Amok Ltd., supra, it was said that the provincial environmental assessment legislation considered in that case was regulatory in nature, and that therefore Finlay v. Canada (Minister of Finance), supra, which involved declaratory legislation (the Canada Assistance Plan and Manitoba's social benefits legislation), did not apply. Thus, since environmental assessment legislation typically imposes obligations and liabilities on public authorities and proponents of projects subject to it, it would seem to follow that only they may challenge a failure by government to subject a project to an assessment in contravention of the Act.
This surely cannot be right. If it were, it would mean that, for all practical purposes, governmental failure to require an environmental assessment when such an assessment is mandated by the legislation would be immune from judicial review for all intents and purposes. As understood today, the rule of law should be concerned to ensure that the legality of governmental inaction is as subject to challenge in the courts as are allegations of over-reaching by public officials.
In my opinion, the distinction between declaratory and regulatory legislation is simply one way of approaching the more fundamental question of whether there is a more appropriate person than the applicant to seek judicial review. This is made clear by one of the trilogy of cases that first permitted public interest standing and established the principles governing the courts' exercise of discretion. In Nova Scotia Board of Censors v. Attorney General (N.S.), supra, the Supreme Court of Canada conferred public interest standing on a journalist to challenge the constitutionality of the provincial film censorship legislation, which was clearly regulatory in nature. The Court held that the "regulatees" whom the legislation made liable for non-compliance, namely, the movie theatre owners, were unlikely, as a matter of fact, to be willing themselves to institute legal proceedings.
A more plausible variation of the argument based on the declaratory or regulatory nature of the legislation was advanced by the interveners and the respondents when they maintained that there would nearly always be persons who would be more directly affected than the Sierra Club by an allegedly unlawful failure to subject a project to an environmental assessment, namely, those who lived in the vicinity of the project or of the work associated with it. Accordingly, public interest standing is not required when litigation alleges a failure to comply with the statutory environmental protection provided by the CEAA and similar legislation. This seems to me the best explanation of the refusal of the Court to grant standing to the plaintiff in Shiell v. Amok Ltd., supra.
Applying this analysis to the facts of the case at bar, the intervener and the respondents maintained that residents of China living near the proposed site of the CANDU nuclear reactors, or those in states bordering China, would be more directly affected by the project than the applicant. It seems to me, however, that, in the absence of evidence to the contrary, such persons are unlikely to invoke the jurisdiction of this Court to test the legality under Canadian law of the respondents' refusal to subject the projects to an environmental assessment review. Therefore, the existence of such persons is not sufficient to deny public interest standing to the applicant.
The intervener and the respondents also stated that the export of the nuclear reactors would involve activities in Canada that would affect some individuals more directly than the Sierra Club. For example, the performance of the contract is likely to involve the mining of uranium in Canada, and those living in the locality of the mines would be more directly affected by the project than the applicant. It may also be necessary to produce and transport within Canada heavy water and other dangerous substances, and those living in the vicinity of the production sites, and of the railway track or roads along which they would be carried, would also be more affected than the applicant.
Such persons seem to me to be in principle more plausible plaintiffs than the residents of China or neighbouring states. The difficulty, however, is that at this stage of the proceeding, a preliminary motion to strike the applicant's originating notice of motion, there are a lot of facts that are unknown, or at least that are not before the Court.
There is no evidence, for example, about the location or scale of either the mining operations required for the construction and operation of the reactors, or of any necessary production or transportation arrangements. Nor do I know what opportunities there will be for members of the public who may be directly affected by the activities related to the project to be heard in some administrative proceedings before these activities can take place. Nor is it clear whether residents who had an opportunity to challenge the legality of the operation to which they are adjacent may also raise the more fundamental issue raised by the Sierra Club in its application for judicial review, namely whether the principal project should have been subjected to an environmental assessment review.
The intervener and the respondents stressed in their submissions that the applicant bore the burden of proving that it satisfied each of the three elements of the public interest standing test. It is therefore incumbent on the applicant, they argued, to demonstrate that there is no reasonable possibility that there will be persons more directly affected than members of the public at large. On this view, the applicant must also establish that, even if they existed, such persons would be unlikely in fact to seek judicial review of the respondents' refusal to subject this project to an environmental assessment under the CEAA.
The applicant purported to discharge this onus by maintaining that all other potential applicants for judicial review are time-barred, as Giles A.S.P. held, since the 30-day limitation period prescribed by subsection 18.1(2) of the Federal Court Act started to run from early in 1997 and has long expired. However, even if the Sierra Club is correct in its identification of the start and end of the limitation period, this Court always has a discretion to extend the time permitted for making an application for judicial review, and therefore it is not possible to say that, on the balance of probabilities, an application for judicial review brought by a person other than the present applicant would be dismissed as out of time.
Equally important to my mind is whether the intervener and the respondents are correct to state that a public interest litigant for judicial review has the burden of establishing that there are no other persons with a better claim to standing who are likely to bring the matter to court. Moreover, even if the burden is normally on the applicant, it will still be necessary to consider whether this is also the case when an applicant's standing is challenged in a preliminary motion to strike.
The case law is not all together clear on the main question. On the one hand, in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, Cory J. said (at page 252):
The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant.
This passage would certainly suggest that the onus is on those opposing the grant of public interest standing to show that there are more appropriate litigants than the applicant.
On the other hand, in Minister of Justice of Canada et al. v. Borowski, supra, Martland J. said (at page 598):
. . . to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court.
This proposition was repeated by Major J. writing for the majority in Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675, at page 693; see also Inshore Fishermen's Bonafide Defense Fund Association v. Canada (1994), 132 N.S.R. (2d) 370 (C.A.), at page 375. These cases seem equally clearly to place the burden of proof on the party seeking public interest standing by assigning to the applicant the difficult task of proving a negative, namely that there are no more appropriate litigants who are likely to litigate the issues raised by the applicant.
No doubt the Supreme Court of Canada will resolve this inconsistency when the issue is next before it. Meanwhile, if the intervener and the respondents in this case had put the applicant's standing in issue as part of their response to the application itself, I would have held that, in accordance with the principle that a plaintiff or an applicant has the burden of proving every aspect of its claim, the applicant must satisfy the Court on the balance of probabilities that there are no more appropriate persons who are reasonably likely to litigate the issue in dispute.
However, this is a motion to strike, and the moving party must prove that on the balance of probabilities the applicant has no fairly arguable case. Can the intervener and the respondents discharge this burden simply by inferring from the nature of the statutory scheme involved here, environmental assessment legislation, that there will inevitably be persons more directly affected than the applicants who will be willing to litigate the issues raised by the Sierra Club? They invoke in particular those living in the vicinity of the uranium mining and transportation operations in Canada that are likely to be associated with the fulfilment of the contract between AECL and the China National Nuclear Corporation.
Although I regard the issue as a relatively close one, in all the circumstances of this case I am not prepared to infer from the nature of the applicable legislation that there will be more appropriate applicants willing to undertake the substantial task of mounting legal challenges of the same scope as the applicant.
This is largely because I have no evidence before me about the nature and scale of the operations that will be undertaken in Canada in connection with the impugned project. Nor do I know whether those responsible for them will be required to clear regulatory hurdles that apply to that particular part of those activities (uranium mining, for example) and if so, whether local residents will be able to challenge the sale and financing of the CANDU nuclear reactors, or only those associated activities that especially affect the particular individuals concerned.
I am also influenced by the consideration that the law should minimize the encouragement that it gives to litigants to bring preliminary motions, often on incomplete information, which, if unsuccessful, create an undesirable multiplicity of proceedings, and add unduly to the expense of litigation and to the time taken to dispose of it.
I conclude, therefore, that the moving parties have not established on the balance of probabilities that there are other reasonable and effective ways in which the subject-matter of the application for judicial review may be litigated. On the evidence before me, the application for judicial review cannot be struck out on the ground that it is unnecessary to confer public interest standing on the applicant in order to protect the rule of law.
E. CONCLUSION
Accordingly, I dismiss with costs to the applicant, the Sierra Club of Canada, the motion appealing Giles A.S.P.'s dismissal of the motion to dismiss the Sierra Club's application for judicial review on the ground that the applicant lacks standing to institute the application.