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Federal Finance - Budget Implementation Act, 2024 - General. 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 a motion to set aside a judgment [under Rule 399(2)(a): 'Setting aside or variance'], here where the target order dismissed an appeal for mootness. The "matter that arose or was discovered subsequent to the making of the order" resulted from the constitutional strike-down of the IAA (which came down after the order-proceeding was argued, but before it was released), followed by the 'deeming' reinstatement of some of it's provisions in the Budget Implementation Act, 2024.
Here the court considered the meaning of a R399(2)(a) triggering "matter", particularly a change in the case law or a legislative amendment:[10] Rule 399(2)(a) confers discretion on the Court to vary or set aside a decision "“by reason of a matter (“faits nouveaux” in the French version) that arose or was discovered subsequent to the making of the order.”" However, the finality of judicial decisions means that setting aside a judgment must be based on exceptionally serious and compelling grounds: Siddiqui v. Canada (Citizenship and Immigration), 2016 FCA 237 at para. 12; Canada v. MacDonald, 2021 FCA 6 at para. 17.
[11] Three conditions must be satisfied for the Court to set aside a decision: (1) the newly discovered information must be a "“matter”"; (2) the "“matter”" must not be one which was discoverable prior to the making of the decision by the exercise of due diligence; and (3) the "“matter”" must be something which would have a determining influence on the decision in question: Ayangma v. Canada, 2003 FCA 382 at para. 3 [Ayangma].
A. The existence of a matter
[12] This Court has held that subsequent jurisprudence of our Court or of a higher Court does not constitute a "“matter that arose […] subsequent to the making of an order”": Ayangma at para. 4; Metro Can Construction Ltd. v. The Queen, 2001 FCA 227 [Metro Can]. Rothstein J. (as he then was) in writing on behalf of the Court explained the rationale behind the Court’s conclusion:If “a matter” included subsequent decisions, reconsideration could be sought in any previous case whenever there was a change in the law that would result in a different disposition of that previous case. Further, it would create unacceptable uncertainty for litigants and the public who must be satisfied that, once a judgment is rendered, it is final. We see no reason to depart from this analysis and conclusion.
(Metro Can at para. 4) [13] The moving parties take the position that, unlike new jurisprudence, the abovementioned provisions in the Budget Implementation Act, 2024, No. 1 do not result in a change in the law. Rather, these provisions reinstate the law, that is, the regulations and the provisions of the Act pertaining to regional assessments, on which this Court was asked to decide the appeal. Accordingly, the abovementioned provisions of the Budget Implementation Act, 2024, No. 1 are a "“matter”" within the meaning of Rule 399(2)(a).
[14] We do not accept that the abovementioned provisions in the Budget Implementation Act, 2024, No. 1 merely reinstate the law on which this Court was asked to decide the appeal. On the contrary, two of the provisions on which the moving parties rely, section 318 and subsection 302(1), bring about a change in the law. These provisions deem the regulations to have been made on June 20, 2024 rather than on June 3, 2020—the date on which they were actually made.
[15] Within this frame of reference, the Budget Implementation Act, 2024, No. 1 is akin to new jurisprudence. For that reason, we are not persuaded that the abovementioned provisions in the Budget Implementation Act, 2024, No. 1 constitute a "“matter”" within the meaning of Rule 399(2)(a). Even if we were to accept that there exists a "“matter”", we find that the other two criteria to set aside the judgment are not met.
B. The "“matter”" must not be discoverable prior to the decision
[16] The moving parties argue that no exercise of due diligence could have allowed them to determine, prior to this Court’s judgment, that the provisions of the Budget Implementation Act, 2024, No. 1 would be adopted.
[17] We do not dispute that the moving parties did not know about the Budget Implementation Act, 2024, No. 1 before its adoption. Nevertheless, we are of the view that this is not sufficient to meet the second condition for setting aside the judgment.
[18] This Court heard the appeal in Halifax on March 21, 2023. On that same day, the Supreme Court heard the reference on the validity of the Act. One appellant, World Wildlife Fund Canada, was a party to the reference before the Supreme Court. Thus, while the appellants may not have known what the Supreme Court’s opinion was going to be, nor how the Government of Canada was going to react to the opinion, surely they knew that there was a possibility that the Act, or a portion thereof, would be declared unconstitutional with the ensuing possibility of legislative action. Yet they remained silent.
[19] Indeed, when this Court directed the parties to provide submissions concerning the impact of the Supreme Court’s decision, the appellants referred to the government’s stated intention to amend the Act. Nonetheless, the appellants never asked this Court to hold the appeal in abeyance pending the amendments. In this context, the second condition for setting aside the judgment is not met. As well, it would be a disregard of the principle of finality of judicial decisions to set aside a decision where the parties knew consequential legislative changes might happen after the decision but they chose to remain silent.
C. The “matter” must have a determining influence on the decision
[20] Paragraph 75 of this Court’s reasons is as follows:Were the Minister to consider the Regional Assessment in making future regulations, perhaps a ruling from this Court that the [assessment] is reasonable and procedurally fair would be of no avail to the appellants. For instance, the passage of time or contextual changes might support arguments against the reasonableness or procedural fairness of the [assessment] that were not made in this appeal, thereby justifying another judicial challenge. [21] The amendments brought by the Budget Implementation Act, 2024, No. 1 do not contradict these words; in our opinion, they underscore their correctness. Before the Supreme Court’s decision, the issue before our Court, as far as the regulations were concerned, was whether it was reasonable for the Minister to make these regulations in 2020 after having considered the assessment completed in that same year. By contrast, pursuant to the Budget Implementation Act, 2024, No. 1, the Minister is deemed to have made the regulations in 2024 after having considered "“an assessment”" that is in relation to the activities designated in the regulations. The Budget Implementation Act, 2024, No. 1 raises new issues. For instance, was it reasonable to make the regulations in 2024? Was it reasonable to do so on the basis of a regional assessment completed in 2020? Does the phrase "“an assessment”" include, as the respondents argue, follow-up reports issued since 2020?
[22] It follows that the Budget Implementation Act, 2024, No. 1 would not have a determinative influence on the judgment. Quite the reverse, the Budget Implementation Act, 2024, No. 1 would raise new issues and require new evidence.
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