No. A872320

Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

RE: THE JUDICIAL REVIEW PROCEDURE ACT, THE PESTICIDE CONTROL ACT, AND ENVIRONMENTAL APPEAL BOARD APPEAL N0. 88/34/PES

 

C. Sandborn	Counsel for the petitioner
D.R. Clark	Counsel for the respondent
	MacMillan Bloedel Limited
G.H. Copley	Counsel for Attorney General
	of British Columbia
Date and Place of Hearing	December 17,1987 and
	March 28, 1988
	Vancouver, British Columbia

The application and the preliminary objection

In this proceeding the petitioner ("the Society") attacks a decision of the respondent Environmental Appeal Board ("the Board") made on June 8, 1987 dismissing the Society's appeal against the issuance of a pesticide permit to the respondent MacMillan Bloedel Limited ("the Company"). Counsel for the Attorney General of British Columbia advanced submissions in support of the Board's jurisdiction.

In its petition the Society alleges that the Board committed a number of errors of law and jurisdiction and that the Board's proceedings were in certain respects contrary to principles of natural justice and fairness. The Society seeks an order quashing the Board's decision and related relief.

The Company raised a preliminary objection to the present proceeding. It says that the Society is foreclosed from seeking relief under the Judicial Review Procedure Act, R.S.B.C. 1979, c. 209 in view of the Society's election to apply to the Lieutenant Governor in Council ("the Cabinet") to vary or rescind the Board's order pursuant to s. 12 of the Environment Management Act, S.B.C. 1981, c. 14. The Society's application pursuant to the latter enactment took the form of a written submission dated July 7, 1987 and by Order in Council No. 1518 made on July 29, 1987 the Cabinet declined to vary or rescind the Board's decision.

Counsel confined their initial submissions to the Company's preliminary objection and these reasons are correspondingly limited to the issues raised by that objection. For present purposes it is unnecessary to decide whether the Board actually fell into reviewable legal or jurisdictional error in its decision or erred in the procedures it followed in the course of arriving at that decision.

In early 1988 the Company was granted two pesticide use permits for designated sites on the Queen Charlotte Islands by an administrator acting pursuant to the provisions of the Pesticide Control Act, R.S.B.C. 1979, c. 322. Section 6(a) of that Act provides that the granting of such a permit is conditional upon the administrator "being satisfied that the pesticide application will not cause an unreasonable adverse effect" and s.1 defines "adverse effect" to mean "an effect that results in damage to man or the environment." The permits authorized the application of specified amounts of 2, 4-D Diethylamine ("2, 4-D") by the "hack and squirt" method for control of red alder.

The stated purposes of the Society include the preservation, protection and enhancement of the human and natural environment of the Queen Charlotte Islands. It appealed the issuance of the permits under s. 15 of the Pesticide Control Act, which provides for the filing of an appeal by "any person" against an action, decision or order of the administrator. The grounds of appeal, in essence, were that the use of 2, 4-D authorized by the permits would cause unreasonable adverse effects on human beings and the environment and that reasonable non-chemical alternatives are available to deal with the problem addressed by the permits.

Section 15 calls for the filing of such an appeal with the Pesticide Control Appeal Board, the establishment of which is provided for by s. 14. However, s. 14(4) provides that the Cabinet may designate another board or commission established provincial enactment as the Pesticide Control Appeal Board. The Board was so designated by Order in. Council 2637 made on December 18, 1981.

A panel of the Board heard the Society's appeal on February 24, 1987 and on June 8, 1987 the Board issued its decision, with reasons, dismissing the appeal. As noted above, the Society's subsequent unsuccessful application to the Cabinet was made pursuant to s. 12 of the Environment Management Act which provision reads as follows:

12. The Lieutenant Governor in Council may, in the public interest, vary or rescind an order or decision of the board.

The Society does not impugn the decision of Cabinet recorded in the order in council made on July 29, 1987. It seeks judicial review of the Board's decision. The Company's position is that the Society lost whatever right of recourse it had to challenge the Board's decision in this court under the terms of the Judicial Review Procedure Act when it requested Cabinet to vary or rescind the Board's decision under s. 12 of the Environmental Management Act ("the s.12 procedure"). The Society's position is that the s.12 procedure authorizing the cabinet to vary or rescind a Board decision "in the public interest" contemplates review on policy and political grounds and does not preclude judicial review of that decision on administrative law grounds.

The question raised here, therefore, does not relate to the extent to which a decision of Cabinet may itself be subjected to judicial review. The leading authority on the latter issue is the decision of the Supreme Court of Canada in Attorney-General of Canada v. Inuit Tapirisat of Canada [1980] 2 SCR 735. There consideration was given to the provisions. of s.64 of the National Transportation Act, R.S.C. 1970, c. N-17, as amended. That section provides for two different avenues of review for orders, decisions, rules and regulations of the Canadian Radio-Television and Telecommunications Commission (CRTC). Sub-section (1) provides for a petition to the Governor in Council for an exercise of discretionary power to vary or rescind the order or decision and s-s.(2) provides for an appeal to the Federal Court of Appeal upon a question of law or a question of jurisdiction. The full text reads follows:

64. (1) The Governor in Council may at any time, in his discretion, either upon petition of any party, person or company interested, or of his own motion, and without any petition or application, vary or rescind any order, decision, rule or regulation of the Commission, whether such order or decision is made inter partes or otherwise, and whether such regulation is general or limited in its scope and application; and any order that the Governor in Council may make with respect thereto is binding upon the Commission and upon all parties.

(2) An appeal lies from the Commission to the Federal Court of Appeal upon a question of law, or a question of jurisdiction, upon leave therefor being obtained from that Court upon application made within one month after the making of the order, decision, rule or regulation sought to be appealed from or within such further time as a judge of that Court under special circumstances allows, and upon notice to the parties and the Commission, and upon hearing such of them as appear and desire to be heard; and the costs of such application are in the discretion of that Court.

In the Inuit Tapirisat case the persons challenging the CRTC decision, having unsuccessfully petitioned the federal Cabinet under s. 64(1), sought to challenge the Cabinet decision. Estey, J., delivering the judgment of the Court, described the substance of the question before the Court in the following terms (at p. 745):

… [I]s there a duty to observe natural justice in, or at least a lesser duty of fairness incumbent on, the Governor in Council in dealing with parties such as the respondents upon their submission of a petition under s. 64(l)?

That question was answered in the negative. The Cabinet was obliged to observe statutory conditions precedent to the exercise of its statutory powers and was subject to judicial review in this jurisdictional sense. However, as the relevant legislation had not imposed procedural requirements upon it, the Cabinet was not obliged to give reasons for its decision, or to hold any kind of a hearing, or even to acknowledge the receipt of a petition (p. 757). Procedural standards applicable to the CRTC did not apply to Cabinet:

In the Inuit Tapirisat decision, the Court was not required to determine, and did not consider, the analogue to the issue raised here, that is to say, whether the election of those challenging the CRTC decision to petition Cabinet precluded them from subsequently seeking judicial review of the CRTC decision on administrative law principles in the Federal Court of Appeal under s. 64(2). With respect to the issue before me counsel advise that they have been able to find only one decision directly on point. That is the decision in this Court of McKenzie, J. in Carter v. The Environmental Appeal Board (June 23 and 24, 1986), unreported, Kamloops Registry No. SC 11074. There an appeal had been taken to the Board from the Comptroller of Water Rights, following which the s. 12 procedure was invoked. The Cabinet having found that it would not be in the public interest to vary or rescind the Board's order, an application was made pursuant to the Judicial Review Procedure Act for review of the Board's decision. In Carter, as is the case here, the decision of Cabinet was not attacked. A preliminary objection corresponding to the one made by the Company in the present proceeding succeeded. McKenzie, J. held (at p. 6) that it would be inappropriate to deal with the matter as if no appeal had been taken to Cabinet and that to entertain the application would involve a duplication of process for which he could find neither precedent nor justification.

The Company naturally places considerable reliance on the Carter decision. Ordinarily, of course, a judge of this Court will treat as binding the decision of another judge of the Court. The general rule and several recognized exceptions to it are set out in the familiar decisions of Wilson, J. (as he then was) in Cairney v. Queen Charlotte Airlines (No. 2) (1954) 12 WWR (NS) 459 (B.C.S.C.) and Re Hansard Spruce Mills (1954) 13 WWR (NS) 285 (B.C.S.C.). Counsel for the Society invokes the exceptions and submits that the decision in Carter ought not to .be followed because relevant law was not considered and also on the basis that the decision was rendered orally, directly after the conclusion of argument. He points out that the sole case authority referred to in Carter was the Inuit Tapirisat decision and he filed an affidavit in which counsel for the petitioner in Carter deposes inter alia that that was the only decision spoken to in argument before McKenzie, J.

There is other authority which, although not directly on point, is instructive in comparing judicial review on the one hand with Cabinet review on the other. Such a comparison is, in turn, of some assistance in addressing the question of whether, as a matter of principle and of statutory interpretation, resort to the s. 12 procedure must be taken as necessarily foreclosing judicial review.

The Inuit Tapirisat decision itself provides some useful observations concerning the difference in nature between Cabinet review and judicial review. Estey, J. there refers, with approval, to the analysis in the majority judgment of the Ontario Court of Appeal in Re Davisville Investment Co. Ltd. and City of Toronto (1977) 15 O.R. (2d) 553, where judicial review of an order in council had been sought. He outlines the nature of the issue considered in that decision and quotes from the majority judgment in the following passage (at S.C.R. 751 - 52):

The applicant had unsuccessfully applied to the Ontario Municipal Board for review of an earlier Board decision. By petition the applicant sought to have the Lieutenant-Governor in Council rescind the earlier Board order and direct a public hearing by the Board "to correct the earlier denial thereof" by the Board. The statute under which the petition was filed provided that the Lieutenant-Governor in council might confirm, vary or rescind the board order or require the Board to hold a new hearing. Lacourcière J.A. speaking on behalf of the majority, after describing the alternative provision for appeal to the court on a question of law or jurisdiction, described the petition as "the political route to the Lieutenant-Governor in Council" and went on to state at pp. 555-56.

'The petition does not constitute a judicial appeal or review. It merely provides a mechanism for a control by the executive branch of Government applying its perception of the public interest to the facts established before the Board, plus the additional facts before the Council. The Lieutenant-Governor in Council is not concerned with matters of law and jurisdiction which are within the ambit of judicial control. But it can do what Courts will not do, namely, it can substitute its opinion on a matter of public convenience and general policy in the public interest. This is what was done by the Order in Council: if it was done without any error of law, or without defects of a jurisdictional nature, the Divisional Court had no power to interfere and properly dismissed the application before it.'

At p. 557 His Lordship returns to the same point:

'Section 94 of The Ontario Municipal Board Act should not be construed restrictively as if it involved an inferior tribunal to which certain matters have been committed by the Legislature. I prefer to regard the power as one reserved by the legislative to the executive branch of Government acting on broad lines of policy. There is no reason to fetter and restrict the scope of the power by a narrow judicial interpretation.'

In his own reasons, Estey J. points out (at pp. 753-54) that judicial review of Cabinet decisions must take account of its modus operandi:

The very nature of the body must be taken into account in assessing the technique of review which has been adopted by the Governor in Council. The executive branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with the subject matter, and above all to the comments and advice of ministerial members of the Council who are by virtue of their office concerned with the policy issues arising by reason of the petition whether those policies be economic, political, commercial or of some other nature. Parliament might otherwise ordain, but in s. 64 no such limitation had been imposed on the Governor in Council in the adoption of the procedures for the hearing of petitions under subs. (1).

This conclusion is made all the more obvious by the added right in s. 64(1) that the Governor in Council may "of his motion" vary or rescind any rule or order of the Commission. This is legislative action in its purest form where the subject matter is the fixing of rates for a public utility such as a telephone system.

The nature of Cabinet review is adverted to again in the following passage (at p.755):

It is my view that the supervisory power of s. 84, like the power in Davisville supra, is vested in members of the Cabinet in order to enable them to respond to the political, economic and social concerns of the moment.

The courts have often recognized that Cabinet review tends to differ markedly from the judicial process, whether recourse to the courts takes the form of an appeal or of an application for judicial review based on administrative law principles. Re CSP Foods Ltd. and Canadian Transport Commission (1978) 84 D.L.R. (3d) 541 (F.C.A.), like the Inuit Tapirisat case, concerned s. 64 of the National Transport Act. Urie J., delivering the judgment of the Court, stated (at pp. 545-46):

With respect, I do not view the exercise of his powers by the Governor in Council pursuant to s. 64(1) as being to the nature of a judicial appeal. It provides a means whereby the executive branch of government may exercise some degree of control over the Canadian Transport Commission to ensure that the views of the Government as to the public interest in a given case, on the basis of facts established by this tribunal, can be expressed by the executive and such views are implemented by means of directions which it may see fit to give the tribunal, through the Governor in Council. It is a supervisory role, as I see it, not an appellate role. The Governor in Council does .not concern himself with questions of law or jurisdiction which is in the ambit of judicial responsibility. But he has the power to do what the Courts cannot do which is to substitute his views as to the public interest for that of the Commission: see Re Davisville Investment Co. Ltd. and City of Toronto …

In Regina v. Spalding [1955] 5 D.L.R. 374 (B.C.C.A.) the Court rejected an argument to the effect that the trial judge had acted prematurely in quashing .on certorari a deportation order prior to the responsible Minister under the Immigration Act disposing of the "appeal" to him. In describing the nature of the procedure followed by the Minister, O'Halloran J.A. summarized his conclusion as follows (at p. 377):

In short the review by the Minister is not an "appeal" in the legal sense, but is only the exercise of an executive or political act, (in its high sense) by the official who occupies the Cabinet post to which department matters must be referred finally for review or decision.

The latter observations relate to the nature of Ministerial review but are consistent with what has been said elsewhere concerning the nature of Cabinet review. As to the nature of Cabinet review, reference may be made as well to Re Canadian Pacific Express Ltd. and Snow (1981) 31 O.R. (2d) 120, at pp. 126-27 (C.A.), Township of South-West Oxford v. Attorney General for Ontario (1985) 50 O.R. (2d) 297, at pp. 302-303 (H.C.), and Manicom v. County of Oxford (1985) 52 O.R. (2d) 137 (H.C.), where the following observations were made obiter (at p. 149):

… the defendants submitted that, because of the Cabinet decision, the issues raised in the statement of claim were res judicata. There are cases which support the proposition that decisions of an administrative tribunal may render issues between the same parties res judicata. There was no authority cited where a Cabinet decision had been so regarded. In view of the mixed political and legal nature of the Cabinet review, I would be hesitant in saying that Cabinet decision would render an issue res judicata before the court: Davisville Investments supra

The foregoing references to the authorities highlight the differences in approach and process which normally distinguish Cabinet review from judicial review. It is the case that the wide variety of statutory review powers vested in Cabinet dictates caution in offering generalizations respecting the nature of Cabinet review. Some statutes do assign to Cabinet an adjudicative role similar to that performed by administrative appeal agencies and courts: see, Rankin, "The Cabinet and the Agencies: Toward Accountability in British Columbia" (1985) 19 U.B.C. Law Review 25, at p. 38 et seq.

Nonetheless, even where a statute provides for alternative methods of appeal to a court or to Cabinet without explicitly distinguishing between the criteria to be applied by each, it has been recognized that Cabinet's involvement with policy imbues its deliberations with a different character. A striking example is provided by the analysis in Capital Regional District v. Concerned Citizens of British Columbia (1982) 2 S.C.R. 842. The provisions of the Pollution Control Act (B.C.) there under consideration provided inter alia for an appeal from the Pollution Control Board to either Cabinet or the Supreme Court of British Columbia, and s. 12(5) stated that either of these "appeal tribunals" could on appeal "determine the matters involved and make any order that to the appeal tribunal appears just". Laskin, C.J., delivering the judgment of the Court, observed (at p. 851):

There are no express directions in s. 12(5) that compel the Lieutenant-Governor in Council to yield to a purely judicial assessment of an appeal nor, in my opinion, does the word "just" compel such an assessment. Policy remains open to a body which is a policy-making tribunal.

To the same effect he stated (at pp. 853-54):

The contention, however, is that the Lieutenant-Governor in Council is, with respect to its function as an appeal tribunal, in a detached position and to be assimilated in all respects to the British Columbia Supreme Court. An examination of s. 12(5) is said to give the two appeal tribunals authority to determine questions of law as well as questions of fact, and their judicial character is said to be emphasized by empowering them to make any order that appears "just". In my opinion, the assimilation of the Lieutenant-Governor in Council to the Supreme Court of British Columbia is overdrawn.

…

The fact that either tribunal may be invoked does not command the same assessment of a decision brought to appeal. Indeed, in determining what appears "just", a Court may be less disposed than an executive agency to interfere with a discretionary order brought to appeal when the executive agency is clearly involved in the administration of the Act and the Court, apart from its appeal function, is clearly not.

I conclude this review of authority bearing on the nature of Cabinet or Ministerial review by noting the disposition made of the issue raised in Ridge v. Baldwin [1964] A.C. 41 (H.L.) as to whether an appeal taken to the Home Secretary precluded the appellant from asserting the nullity of the prior decision taken by a police watch committee. The majority rejected the argument that the appellant was so precluded.

In the present proceeding counsel for the Society and for the Company agree that the function performed by Cabinet under the s. 12 procedure is essentially legislative, as opposed to judicial, in nature. The characterization given to the analogous provision in the Inuit Tapirisat decision supports that characterization. Counsel for the Attorney General, on the other hand, argued that the s. 12 procedure is intended to provide a comprehensive right of appeal to Cabinet, extending to questions of law and jurisdiction as well as policy and political considerations. All of these issues, he submitted, are appropriately canvassed by Cabinet in the course of determining whether it is "in the public interest" to vary or rescind a decision of the Board. But even if its authority under the s. 12 procedure is as broad as counsel for the Attorney General contends, it does not follow that Cabinet is required or expected to address the same issues in the same way as would a court of law. Cabinet's approach, as pointed out in the Capital Regional District decision, is quite properly policy oriented. Under the Judicial Review Procedure Act, in contrast, the court is concerned with questions of law and jurisdiction, not governmental policy.

Since it appears that none of the authorities referred to above except the Inuit Tapirisat decision were argued in Carter, and having regard also to the fact that the latter judgment was rendered orally immediately after argument, I am satisfied that this is one of those exceptional situations in which departure from a prior decision of this Court is warranted. I conclude that the Legislature cannot have intended the s. 12 procedure to represent a comprehensive right of final appeal which, once engaged, would preclude any recourse to judicial review to challenge Board decisions on administrative law grounds. The two avenues of review are not coextensive but complementary. The one leading to Cabinet engages governmental policy; the other does not.

I add these observations. Under the s. 12 procedure Cabinet may trigger its own review without a request from, or indeed over the protest of, anyone. Counsel for the Company acknowledged in argument that the position for which he contends leads to the result that whenever Cabinet invokes the s. 12 procedure, either on its own motion or upon request (of anyone), judicial review of the Board's decision is ruled out. Recourse to the courts would thereby be eliminated save for judicial review of the Cabinet decision. But as the Inuit Tapirisat decision makes clear, the court's supervisory powers over Cabinet decisions are effectively limited to ensuring that the jurisdictional limits expressly imposed by statute are respected; judicial review, in the absence of explicit statutory standards, will not demand conformance of Cabinet decisions to standards of natural justice or fairness. In the absence of clear statutory language, the enactment ought not to be construed readily in such a, way as to deny access to the courts for the purpose of measuring the procedures of administrative tribunals such as the Board against such standards.

Accordingly, the Company's preliminary objection is rejected and the application under the Judicial Review Procedure Act may proceed to a hearing on its merits.

April 27, 1988

Vancouver, British Columbia