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Judicial Review - Not for Advisory Roles (2). Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of two JRs, one which "challenged the validity of a report resulting from a regional assessment of offshore oil and gas exploratory drilling, conducted under the Impact Assessment Act" and the other to "quash a regulation made under the Act that exempts certain exploratory drilling activities from a number of impact assessment requirements".
Here the court considered in the first JR whether the issuance of the report was JR justiciable:[2] After our Court heard this appeal, the Supreme Court of Canada released its decision on the constitutionality of the Act: Reference re Impact Assessment Act, 2023 SCC 23 [IAA Reference]. The Supreme Court opined that the federal impact assessment scheme, consisting of the Act and its accompanying Physical Activities Regulations, S.O.R./2019-285 (Activities Regs), is unconstitutional in part.
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[49] Applying the Supreme Court’s analysis to the regional assessment mechanism, I find that the Regional Assessment (the assessment phase), while being an "“integral component of sound decision-making”" (Oldman River at 71), does not involve decision-making and carries no legal consequences.
[50] Thus, as determined by the Federal Court, this situation is no different from the ones previously reviewed by this Court and calls for the same conclusion: the Regional Assessment and the Report are not amenable to judicial review: FC Decision at paras. 29–30; Gitxaala Nation v. Canada, 2016 FCA 187 at para. 125 [Gitxaala]; Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 at para. 202 [Trans Mountain]; Taseko Mines Ltd. v. Canada (Environment), 2019 FCA 319 at para. 43 [Taseko #1]; Mikisew Cree First Nation v. Canadian Environmental Assessment Agency, 2023 FCA 191 at para. 107 [Mikisew].
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(1) The Right to Participate Meaningfully Argument
[52] The appellants allege that the public’s legal right to participate meaningfully in a regional assessment (paragraph 6(1)(h) and section 99) imposes a corresponding legal obligation on the Committee. If the right to participate meaningfully is denied, and the regional assessment is not subject to judicial review, then the wronged person or entity will have no remedy, a result contrary to the Act: Appellants’ Memorandum of Fact and Law at para. 110.
[53] I disagree.
[54] The record shows that the appellants participated in the process and had numerous opportunities to make submissions at in person meetings and in written form. While they may be dissatisfied with the regional assessment, they have not demonstrated that they were denied meaningful participation.
(2) The Purposes of the Act Argument
[55] The appellants argue that requiring affected parties to wait for a decision to challenge the regional assessment’s deficiencies would undermine the purposes of the Act, stated in paragraph 6(1)(b.1)—namely, fairness, efficiency, and the predictability of impact assessments: Appellants’ Memorandum of Fact and Law at para. 115.
[56] Again, I disagree.
[57] Allowing a party to challenge a regional assessment that may not result in any decision would be a waste a judicial resources and therefore inefficient. In addition, I fail to understand how challenging a regional assessment—a study which may not result in further action—would render the process fair or predictable.
(3) The Legislative Changes Argument
[58] Lastly, the appellants make an argument based on legislative changes. As I understand it, their argument is that the report issued under the Act’s predecessor, the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 (CEAA), was "“final and conclusive”" and insulated from judicial review. As such, a report made under the CEAA is different from a report made under the Act; the latter is not insulated from judicial review. The appellants say that the Federal Court’s failure to consider these differences led it to improperly rely on the decisions Gitxaala, Trans Mountain, and Taseko #1, which were rendered under the CEAA: Appellants’ Memorandum of Fact and Law at paras. 115–119.
[59] I must disagree. If a report issued under the CEAA was, as the appellants say, more akin to a "“final and conclusive”" decision, but was still found not to be amenable to judicial review, then it cannot be that a report made under the Act that is less akin to a "“final and conclusive”" decision could be amenable to judicial review.
(4) Conclusion on Amenability to Judicial Review
[60] The Report is not amenable to judicial review. The same is true for the Regional Assessment, an interim document that simply culminates in the Report. Accordingly, the Federal Court correctly dismissed the appellants’ application for judicial review of the Report.
[61] That said, just because a regional assessment, standing alone, is not amenable to judicial review, does not mean it is always immune from judicial review. If a regional assessment is materially deficient (unreasonable or procedurally unfair), the resulting regulation may be quashed on the basis that the Minister lacked the legal prerequisite set out in subsection 112(2) to make that regulation: FC Decision at paras. 26, 31, citing Trans Mountain at para. 201; Mikisew at paras. 108–109. . Segura Mosquera v. Child and Family Services Review Board
In Segura Mosquera v. Child and Family Services Review Board (Div Court, 2023) the Divisional Court considered a set aside motion against a R2.1 order that dismissed a JR by the applicant against a police board, here on grounds that no JR-justiciable decision was made:[14] Citing Currie v. Halton Regional Police Services Board (2003), 2003 CanLII 7815 (ON CA), 233 D.L.R. (4th) 657 (Ont. C.A.), at para. 14, the motion judge determined that the JRA was, on its face, frivolous, because it lacked a legal basis or merit and was not “reasonably purposeful”.
[15] In reaching the above conclusion, the motion judge noted that the jurisdiction of this court to hear an application for judicial review is found at s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), which jurisdiction rests on the existence of the exercise of a statutory power of decision. At para. 12 of her Endorsement, Ryan Bell J. notes that “[i]n order to be subject to judicial review, a statutory power of decision ‘must be a specific power or right to make the very decision in issue’”, referencing Paine v. University of Toronto et al. (1981), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 772, leave to appeal to S.C.C. refused, 35 O.R. (2d) 528.
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Analysis
[20] The heart of the motion judge’s findings is that, as pleaded, the relief sought as against the OPS lacks a legal basis or legal merit. On its face, the JRA refers to a decision made by the OPS, which was reviewed by the IPC. The motion judge observes that no reviewable OPS decision is identified in the JRA.
[21] I see no error in law or in fact in the reasons for the Dismissal Order, given by the motion judge. The motion judge properly directed herself on the law and, on the pleadings before her, her decision was neither clearly wrong, nor was there no, nor insufficient, weight given to relevant considerations.
[22] In addition, I conclude that the motion judge was correct in concluding that the relief apparently sought by Segura was not judicial review of a decision but, rather, a review or “audit” of the OPS’s policies and procedures. Such a review or audit is not within the purview of a judicial review application brought under the JRPA; as such, as to the relief sought as against the OPS, the motion judge properly exercised her discretion in concluding that the JRA had no merit and could be properly classified as “frivolous, vexatious or an abuse of process”.
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