Judgments

Decision Information

Decision Content

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