T-2807-83
T-2808-83
Energy Probe (Applicant)
v.
Atomic Energy Control Board and Ontario Hydro
(Respondents)
Trial Division, Reed J.—Toronto, February 15
and 16; Ottawa, April 9, 1984.
Practice — Parties — Attorney General of Canada seeking
to be added as party in action to quash decision of A.E.C.B.
for pecuniary bias as one member of said Board president of
company doing business with Ontario Hydro, applicant for
licence before Board — Attorney General having direct interest
as case raising questions of composition of Board — Matter of
general importance as raising issue of composition of similar
boards and of confidence of public therein, and Court wanting
w hear all relevant arguments — Position and interests of
Queen as principal not identical to those of A.E.C.B. as agent
— S. 5 of Department of Justice Act, giving Attorney General
common law right to intervene, applicable, as no difference in
roles of Attorneys General of England and of Canada with
respect to cases such as this — Atomic Energy Control Act,
R.S.C. 1970, c. A-19, s. 3 — Department of Justice Act,
R.S.C. 1970, c. J-2, ss. 4(b),(c), 5(a) — Supreme Court Act,
R.S.C. 1970, c. S-19, s. 55 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 18 — Federal Court Rules, C.R.C., c.
663, RR. 1101, 1716(2)(6).
Judicial review — Prerogative writs — Certiorari — Attor
ney General moving to be added as partylintervener in action
to ensure right to appeal decision on certiorari motion —
Allegation that Atomic Energy Control Board member having
pecuniary bias as president of supplier — Challenge to prac
tice of Governor in Council to appoint those with industry
interests as part-time Board members — Issue one of broad
ramifications since relating to composition of Board and other
boards similarly constituted — Questions relating to public
confidence in administrative boards.
Energy — Allegation that member of Atomic Energy Con
trol Board having pecuniary bias as president of company
supplying radiation-resistant cables for nuclear reactors —
Bias not in respect of single transaction but for continuing
business activity — Governor in Council's practice of appoint
ing as part-time Board members those with industry interests
called in question — Attorney General of Canada added as
party in view of general public importance of issue.
A member of the Atomic Energy Control Board was presi
dent and director of a company selling significant quantities of
radiation-resistant cables for nuclear reactors to Ontario Hydro
when the A.E.C.B. issued a renewed operating licence for
Ontario Hydro's Pickering "B" Nuclear Generating Station.
In an action brought by the applicant to quash the decision
of the A.E.C.B. for pecuniary bias, the Attorney General of
Canada seeks to be added as a party/intervener, to be assured
of a right to appeal any decision in the action.
Held, the application is granted.
The Attorney General should be added as a party because he
has a direct interest in the outcome of this case and because it
raises a question of general importance on which the Court
should have his arguments. A finding of bias would make the
Board member ineffective for many decisions and would raise
the issues of the composition of this and other similar boards
and of the conflict of interests guidelines which should be
applied. The general public confidence in boards of this nature
is also involved.
While the role of administrative tribunals on appeals from
their decisions may have been limited by cases such as North
western Utilities, none of the reasons for those limitations apply
to the Attorney General in this case. The position and interests
of the Queen as principal are not identical to those of the
A.E.C.B. as agent.
The Attorney General has a common law right to intervene
based on section 5 of the Department of Justice Act which
confers on the Attorney General of Canada the same duties and
powers that belong to the Attorney General of England, if
applicable to Canada. While their roles may differ in certain
respects, there is no difference in what that role might be in a
case such as this.
CASES JUDICIALLY CONSIDERED
APPLIED:
Adams y Adams, [1970] 3 All ER 572 (P.D.A.).
DISTINGUISHED:
Northwestern Utilities Ltd. et al. v. City of Edmonton,
[1979] 1 S.C.R. 684; 89 D.L.R. (3d) 161; Re Bisaillon
and Keable et al. (1980), 127 D.L.R. (3d) 368 (Que.
C.A.).
REFERRED TO:
P.P.G. Industries Canada Ltd. v. A.G. of Canada, [1976]
2 S.C.R. 739.
COUNSEL:
A. J. Roman and D. Poch for applicant.
No one appearing for respondent Atomic
Energy Control Board.
Ian Blue for respondent Ontario Hydro.
P. Evraire, Q.C. and M. J. B. Wood for
intervenant Attorney General of Canada.
SOLICITORS:
A. J. Roman, Toronto, for applicant.
No one appearing for respondent Atomic
Energy Control Board.
Cassels, Brock, Toronto, for respondent
Ontario Hydro.
Deputy Attorney General of Canada for
intervenant Attorney General of Canada.
The following are the reasons for order ren
dered in English by
REED J.: This is a motion by the Attorney
General of Canada to be added as a party/
intervener in an action [T-2807-83] brought by the
applicant, Energy Probe, to quash a decision of the
Atomic Energy Control Board on the ground of
pecuniary bias.
The applicant, Energy Probe, does not object to
the Attorney General making arguments to the
Court on the issues but contends that he should do
so only as an amicus curiae. The Attorney General
on the other hand wants full party status. The
immediate cause of this difference is that the
Attorney General wishes to ensure himself of a
right to appeal any decision I might make on the
certiorari motion while the applicant wishes to
preclude that possibility. It is not likely that either
Ontario Hydro or the Atomic Energy Control
Board would appeal a decision not in their favour.
Rather, they would proceed immediately to cure
the defect, as soon as possible by a rehearing.
It should be noted that the Attorney General
could not be precluded, in any event, from having
the legal issues raised by this case finally deter
mined since authority exists under section 55 of
the Supreme Court Act [R.S.C. 1970, c. S-19] for
the Governor in Council to refer questions to the
Supreme Court.
The Attorney General argues that he should be
allowed standing because: (1) a decision in the
main action will affect Crown interests or the
public interest generally; (2) an analogy should be
drawn to the status given to the Attorney General
in constitutional cases; (3) this Court has discre
tion pursuant to section 18 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] and Rules
1101 and 1716(2)(b) [Federal Court Rules,
C.R.C., c. 663] which it should exercise because of
the important issues of public concern (policy)
raised, and (4) since the Atomic Energy Control
Board itself cannot appear except for restricted
purposes (see Northwestern Utilities Ltd. et al. v.
City of Edmonton, [1979] 1 S.C.R. 684; 89
D.L.R. (3d) 161), the Attorney General of Canada
should be allowed standing in order to ensure that
all relevant arguments are made to the Court.
Counsel for Ontario Hydro supported the argu
ments of the Attorney General noting particularly
that his client's interests did not coincide with
those of the Attorney General. In addition he
relied heavily on the decision of the Supreme
Court in P.P.G. Industries Canada Ltd. v. A.G. of
Canada, [1976] 2 S.C.R. 739. In that case the
Attorney General was given standing to seek an
order to quash a decision of the Anti-dumping
Tribunal on the basis of bias two years after the
decision in question had been made.
Counsel for the applicant, Energy Probe, as
would be expected, took the opposing view on
almost all the above arguments. He argued that
the issue was not one affecting Crown interests or
the public interest generally but was very restrict
ed and specific in nature, concerning the alleged
pecuniary bias of only one member of the Atomic
Energy Control Board. He argued that an analogy
could not be drawn to the status given to the
Attorney General in constitutional cases. He con
tended that the Attorney General's right of stand
ing in those cases was based on a doctrine of
"legislative trespass". A doctrine, I might say,
borrowed from the Australian jurisprudence and
which does not in any event fit well into the
Canadian context. In any event, it must be noted
that counsel for the applicant was rather on the
horns of a dilemma in making these arguments
since it was obvious that it would become impor-
tant to him in making argument for his own
client's claim of standing on the certiorari applica
tion to argue that an issue of significant public
importance was involved; the issue of the right of
the citizenry to have A.E.C.B. decisions made by a
tribunal untainted by pecuniary interest.
I have no doubt that this is an appropriate case
in which the Attorney General should be given
permission to be added as a party. The Attorney
General has a direct interest in the outcome of this
case. It is alleged that one of the members of the
A.E.C.B. has a pecuniary bias in the decisions of
the Board because he is president and director of a
company which sells significant quantities of
radiation-resistant cables for nuclear reactors to
Ontario Hydro. It is not a case of bias being
alleged with respect to one isolated transaction but
because of a continuing business activity. If bias
exists in this case then the Board member will be
an ineffective member for many decisions which
the Board makes. Thus the issue raised challenges
the practice of the Governor in Council in appoint
ing as part-time A.E.C.B. members persons having
interests in the industry of the nature described
above. The issue relates to the choosing of persons
for appointment to the Board and to the require
ments that would have to be placed upon them
(e.g., divestiture of interests) to make them effec
tive members of the Board.
In addition I think the Attorney General should
be added on the ground that a "question of general
importance is raised" in these proceedings on
which the Court should have his arguments.
(Refer: Rule 1101 of the Federal Court Rules.)
I cannot accept Energy Probe's argument that
the issue here is merely confined to Mr. Olsen's
alleged bias and is a "one-shot affair". The ramifi
cations are much broader. They do involve as
noted above questions relating to the composition
of the Board, and perhaps other boards similarly
constituted; they do involve, as counsel for Energy
Probe was bound to argue on the main motion,
questions relating to the general public confidence
in boards of this nature.
Counsel for Energy Probe argued that the
Attorney General was entitled to no higher stand
ing than the A.E.C.B. In Northwestern Utilities
Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R.
684; 89 D.L.R. (3d) 161, the Supreme Court held
[at page 708 of the Supreme Court Reports]:
Section 65 no doubt confers upon the Board the right to
participate on appeals from its decisions, but in the absence of a
clear expression of intention on the part of the Legislature, this
right is a limited one. The Board is given locus standi as a
participant in the nature of an amicus curiae but not as a party.
That this is so is made evident by s. 63(2) of The Public
Utilities Board Act which reads as follows:
The party appealing shall, within ten days after the appeal
has been set down, give to the parties affected by the appeal
or the respective solicitors by whom the parties were repre
sented before the Board, and to the secretary of the Board,
notice in writing that the case has been set down to be heard
in appeal, and the appeal shall be heard by the court of
appeal as speedily as practicable.
Under s. 63(2) a distinction is drawn between "parties" who
seek to appeal a decision of the Board or were represented
before the Board, and the Board itself. The Board has a limited
status before the Court, and may not be considered as a party,
in the full sense of that term, to an appeal from its own
decisions. In my view, this limitation is entirely proper. This
limitation was no doubt consciously imposed by the Legislature
in order to avoid placing an unfair burden on an appellant who,
in the nature of things, must on another day and in another
cause again submit itself to the rate fixing activities of the
Board. It also recognizes the universal human frailties which
are revealed when persons or organizations are placed in such
adversarial positions.
This appeal involves an adjudication of the Board's decision
on two grounds both of which involve the legality of adminis
trative action. One of the two appellants is the Board itself,
which through counsel presented detailed and elaborate argu
ments in support of its decision in favour of the Company. Such
active and even aggressive participation can have no other
effect than to discredit the impartiality of an administrative
tribunal either in the case where the matter is referred back to
it, or in future proceedings involving similar interests and issues
or the same parties. The Board is given a clear opportunity to
make its point in its reasons for its decision, and it abuses one's
notion of propriety to countenance its participation as a full-
fledged litigant in this Court, in complete adversarial confron
tation with one of the principals in the contest before the Board
itself in the first instance.
It has been the policy in this Court to limit the role of an
administrative tribunal whose decision is at issue before the
Court, even where the right to appear is given by statute, to an
explanatory role with reference to the record before the Board
and to the making of representations relating to jurisdiction.
(Vide The Labour Relations Board of the Province of New
Brunswick v. Eastern Bakeries Limited et al. ([1961] S.C.R.
72); The Labour Relations Board of Saskatchewan v. Domin
ion Fire Brick and Clay Products Limited et al. ([1947] S.C.R.
336).)
Accordingly, counsel for Energy Probe argued
that since the Board's role could only be that of
amicus curiae or defender of the Board's jurisdic
tion (in the narrow sense of that word) the Attor
ney General, equally, could only play that role.
I do not agree. It is not the Attorney General
who is being attacked for bias. None of the reasons
for which the Board is excluded apply to the
Attorney General. It is not the Attorney General
who will hear any rehearing of a licence applica
tion should an order for certiorari be given. It is
not a decision by the Attorney General which is
under review. Accordingly, I find no reason in the
Northwestern Utilities case or the other cases to
which it refers which create an implied or express
limitation on the propriety of the Attorney Gener
al obtaining standing in this case. This is so even
considering the fact that under section 3 of the
Atomic Energy Control Act [R.S.C. 1970, c.
A-19] the Board is an agent of Her Majesty.
While the position of a principal may be similar to
that of his agent for many purposes, they are not
identical and their interests are not necessarily
identical. Having come to this conclusion it is
unnecessary for me to deal with much of the
argument made by counsel to the effect that the
Attorney General can only be heard as an amicus
curiae.
Counsel's second argument was that the Attor
ney General had neither a statutory right nor a
common law right to intervene. With respect to the
first half of this argument he referred to section 4
of the Department of Justice Act [R.S.C. 1970, c.
J-2]:
4. The Minister of Justice shall
(b) see that the administration of public affairs is in accord
ance with law;
(c) have the superintendence of all matters connected with
the administration of justice in Canada, not within the
jurisdiction of the governments of the provinces;
He proceeded then to argue that while the Attor
ney General might have authority to intervene to
quash a tribunal decision for bias, he could not
intervene to try to defend one from a charge of
bias. I must admit I do not see this argument. If
the duty imposed by section 4 is to see that the
administration of public affairs is in accordance
with law or to superintend "matters connected
with the administration of justice in Canada" this
would include seeing that decisions were made in
accordance with law, and this should involve the
right to argue either side of a case depending upon
which in the Attorney General's opinion was more
consonant with the law as he viewed it.
I note however that Chief Justice Laskin in the
P.P.G. case (supra) seems to cast doubt on wheth
er paragraph 4(b) had any relevance at all to the
role of the Attorney General in this type of situa
tion because paragraph (b) refers to "public
affairs". I wondered too whether section 4 was
relevant at all to the role of the Attorney General.
That section addresses itself to the role of the
Minister of Justice and while the two may be
embodied in one person in our system, the offices
are different. In my view it is section 5 of the
Department of Justice Act which is relevant:
5. The Attorney General of Canada shall
(a) be entrusted with the powers and charged with the duties
that belong to the office of the Attorney General of England
by law or usage, so far as those powers and duties are
applicable to Canada .... [Emphasis added.]
Counsel argued that the roles of the Attorney
General in England and in Canada are different
and that in order to rely on the common law rules
respecting that role as developed in England the
Attorney General of Canada must demonstrate a
relevant similarity between his role and that of his
United Kingdom counterpart. Reference was made
to Re Bisaillon and Keable et al. (1980), 127
D.L.R. (3d) 368 (Que. C.A.), at [pages] 374-376,
397 (overruled on other grounds by the Supreme
Court [[1983] 2 S.C.R. 60], October 1983).
It is trite law that the role of the Attorney
General in Canada differs from that of his coun
terpart in England but none of the differences
referred to either in the Bisaillon case or by
counsel for Energy Probe were relevant to drawing
a difference between the roles that both might seek
in this case.
The two grounds on which the Attorney General
seeks and should be given standing to appear in
this case are equally applicable in both countries.
He is appearing to protect a Crown interest
which at one level is not qualitatively different
from the right given to any person to appear before
a Court to make representations when his interest
will be affected by a decision of the Court. Second
ly the issue before the Court is one of general
public importance and of such a nature that the
Court deems it beneficial to hear argument of the
Attorney General on the issue in order to ensure
that all arguments are adequately canvassed. Ref
erence might be made in this regard to Adams y
Adams, [1970] 3 All ER 572 (P.D.A.).
Accordingly the application to add the Attorney
General as an intervener is granted.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.