Judgments

A-142-02

2003 FCA 239

Attorney General of Canada (Appellant)

v.

Society Promoting Environmental Conservation on its own behalf and on behalf of its members (Respondent)

Indexed as: Society Promoting Environmental Conservation v. Canada (Attorney General) (C.A.)

Court of Appeal, Strayer, Evans and Malone JJ.A.-- Vancouver, March 5; Ottawa, May 29, 2003.

Expropriation -- Practice -- Governments of Canada, B.C. unable to agree on renewal of licence for seabed where military torpedo-testing facility in operation for 40 years -- Notice of intent to expropriate registered -- Substantial public opposition due to fears of risk to environment, public safety from nuclear warheads, nuclear-powered ships -- 3,000 objections served -- Hearing officer appointed -- Made report to Minister following public hearings -- Expropriation order made -- Environmental public interest group sought judicial review -- Order quashed -- Appeal by Attorney General -- Whether hearing officer breached Expropriation Act notice provision -- Whether report to Minister adequately conveyed nature, grounds of objections -- F.C.T.D. Judge holding objectors prejudiced, expropriation order thereby invalidated -- Appeal allowed -- 570 hearing notices sent late due to computer error -- Amended notices sent, hearings extended -- Hearing advertised in 3 local papers -- Whether breach of statutory imperative justifying quashing expropriation -- Lengthy review of administrative law issues -- Question was degree of prejudice to objectors due to lack of timely, personal notice -- F.C.T.D. Judge erred in assuming prejudice -- Noteworthy objectors lacked proprietary interest in expropriated land -- Not deprived of public rights -- Administrative scheme: hearing officer neither decides desirability of expropriation nor makes recommendation -- Only hears objectors, reports to Minister -- Many objectors had generalized concerns, others specific to location of facility -- Few more having little impact on Minister's decision -- Hearing process having political dimension as sensitizes Minister to extent of public opposition -- Court not discounting Minister's position facility of great strategic, diplomatic importance -- Unclear expropriation extinguishing existing public rights -- Hearing officer's report did what required by Parliament -- Hearing officer refused to hear those whose position Government acting in bad faith -- Even if erred in so ruling, not ground for granting relief -- While Minister's conduct inconsistent (invoked statutory provision not to state purpose of expropriation in notice of intention then gave details at press conference) not basis to conclude acted in bad faith -- Officer erred neither in excluding objections received after statutory deadline nor those sent by regular, not registered, post.

Administrative Law -- Judicial Review -- Certiorari -- Appeal from decision of F.C.T.D. Judge quashing expropriation order -- Outcome depending on two narrow administrative law issues: (1) did hearing officer's breach of statutory duty to notify objectors of date, place of public hearings within seven days of appointment justify setting expropriation order aside; (2) did report to Minister adequately convey nature, grounds of objections -- F.C.T.D. Judge found objectors prejudiced -- Appeal allowed -- 570 out of 2,465 notices sent out of time due to computer error -- Amended notices sent, hearings extended -- Mandatory/directory distinction never regarded in abstract manner -- Case law reviewed -- Necessity for considering public inconvenience, injustice before invalidating administrative action -- Most important considerations: object of statute, effect of ruling -- Five considerations in analytical framework for determining when administrative action should be set aside for breach of procedural provision -- Judge erred in view obligatory nature of notice provision dictated legal consequences of non-compliance -- Necessity for pragmatic, functional inquiry -- Contextual assessment not mechanical, purely subjective -- Error not flagrant, was mitigated -- While not trivial, not depriving objectors of reasonable opportunity to be heard -- Question was degree of prejudice to 570 objectors -- Judge erred in assuming prejudice -- No evidence anyone prevented from attending hearing by late notice -- Objectors without proprietary interest, public rights in expropriated land -- Administrative scheme: hearing officer neither decides desirability of expropriation nor makes recommendation -- Just hears objectors, makes report to Minister -- Political dimension to hearing: sensitizes Minister to extent of public opposition -- Tight statutory timetable suggests procedural perfection not Parliament's only concern -- Hearing officer's report adequate to "report on the nature and grounds of the objections" -- Approach taken not unreasonable -- Did not err in refusing to hear objectors whose position Government acted in bad faith, objections received out of time, sent by regular, not registered, post.

This litigation resulted from the inability of the governments of Canada and British Columbia to agree on the renewal of a licence with respect to a portion of the Strait of Georgia seabed where, for nearly 40 years, Canada has operated a military facility used to train Canadian, American and other NATO navies and for torpedo testing. The parties having failed to reach an agreement and the current 10-year licence being about to expire, Canada registered notice of intent to expropriate. There was considerable public opposition to the continued use of this facility as it could involve American nuclear-powered ships as well as nuclear warheads. The perception was that this could threaten health and safety in a densely populated area and pose risks to the environment. In fact, more than 3,000 objections were served upon the Minister of Public Works and Government Services. A retired judge of the British Columbia Court of Appeal was appointed as hearing officer. Due to a computer error, 570 out of the 2,465 notices were not sent out within seven days of the hearing officer's appointment. When this error came to light at the Nanaimo, British Columbia hearings, amended notices went out and the Vancouver hearings were extended by two days. The hearing officer chose to treat the error as a mere irregularity and allowed the hearings to go forward. It was noted that the hearing officer had caused to be published hearing notices in three local papers while paragraph 10(4)(a) requires the publication of notice in but one area newspaper. Following public hearings, he submitted a 300-page report but after considering the report the Minister made the expropriation order. The applicant, a public interest group with a lengthy involvement in environmental issues, sought judicial review and the expropriation order was quashed. The Trial Division Judge concluded that the hearing officer, by failing to comply with the mandatory statutory requirement to notify 570 objectors within the specified time period, caused them prejudice. That was enough to invalidate the expropriation order so it had to be set aside. In addition, the report was defective as it failed to explain in detail the reasoning behind the objections. What it did was to categorize the objectors in terms of "group characteristics" such as levels of political activism, opinions on the American Government and its links to the defence industry and on whether statements of the American and Canadian Governments as to the risks of nuclear accidents and proliferation were worthy of belief. This was an appeal by the Attorney General from that decision. It turned on two narrow issues of administrative law: (1) did the hearing officer's breach of the duty imposed by the Expropriation Act to give notice of the date and place of the public hearings to all objectors within seven days of his appointment justify the setting aside of the expropriation order? and (2) did the report to the Minister adequately convey "the nature and grounds of the objections" as required by the Act? If not, did that warrant the order's being set aside? Three additional issues which respondent raised but which the Judge below found unnecessary to deal with, were also among the issues relied upon by the Society in this appeal.

Held, the appeal should be allowed.

(1) Even before the concept of "a pragmatic or functional analysis" came to dominate the judicial approach to administrative law issues, the mandatory/directory distinction was not regarded by the courts in an abstract manner. As long ago as 1917, it was held--in Montreal Street Railway Company v. Normandin--that if to hold as null and void acts done in neglect of a public duty would result in serious general inconvenience and fail to promote the principal object of the legislation, the statutory provision would be considered as directory only. The necessity for taking into account public inconvenience or injustice prior to holding an administrative action invalid was reaffirmed by Iacobucci J. in the 1994 case British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re). He wrote that the "mandatory" and "directory" labels in themselves offered no magical assistance in defining the nature of a statutory direction. While a court will arrive at a decision by the normal process of statutory interpretation, the prospect of private and public "inconvenient" impacts are matters of special concern. In another Supreme Court of Canada decision, McLachlin J. wrote that in determining whether a directive will be looked upon as mandatory or directory, the most important considerations are the object of the statute and the effect of ruling one way or the other. And, in London and Clydeside Estates Ltd. v. Aberdeen District Council, Lord Hailsham of St. Marylebone L.C. wrote that a court ought not consider itself "bound to fit the facts of a particular case and developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition".

It was possible to identify some five considerations in an analytical framework for determining when an administrative action should be set aside upon judicial review for breach of a formal or procedural statutory provision. (1) Is compliance obligatory or permissive? If obligatory, the consequences of non-compliance are to be determined by reference to the circumstances, including the factors described in (4). Whether the provision is obligatory or permissive is a question of statutory interpretation to be determined according to the usual principles. (2) If obligatory, a refusal to comply may result in a court issuing an order of mandamus. (3) If obligatory, failure to comply may justify a court, on judicial review, in setting aside or declaring invalid any administrative action taken in breach of the statutory duty. Legislative intent is the focus of the inquiry. But legislative intent regarding the consequences of non-compliance has to be determined in light of the circumstances of the case. Determining whether the provision is obligatory or permissive does not, of course, depend upon the facts of the case. (4) The factors to be considered in determining whether non-compliance invalidates the administrative action include: (i) the importance of the provision, both as to the overall purposes of the statutory scheme and those served by imposition of the procedural duty: (ii) seriousness of the breach: is it a mere technical violation or flouting of a statutory requirement? In the latter case, judicial intervention is to be expected; (iii) impact of the impugned administrative action upon the rights of individuals; (iv) seriousness of the public inconvenience and injustice resulting from invalidation of the administrative action, including frustration of the legislation's purposes, public expense and hardship to third parties; (v) nature of the administrative process: protection of procedural rights is more important in the case of an adjudicative process as opposed to a political process leading to an order of general application. (5) Even if the action is invalidated, a court still possesses a discretion to deny relief on account of a remedial bar such as: delay, lack of standing or existence of an adequate alternative remedy.

It would seem that the Trial Division Judge considered the obligatory nature of the notice provision as conclusive of the legal consequences of non-compliance absent "some compelling evidence to the contrary". He was mistaken in that opinion. The consequences of non-compliance with a statutory procedural duty are to be determined following a pragmatic, functional inquiry. The necessary contextual assessment is neither mechanical nor purely subjective.

The hearing officer's breach was not flagrant, but the result of an error which he corrected once it came to light and mitigated by allowing additional hearing time. While it was not a trivial breach, it was not argued to have been so destructive of the hearing process that some 570 objectors were deprived of a reasonable opportunity to be heard as is required to discharge the duty of fairness. The question was the degree of prejudice the 570 objectors suffered due to the failure to receive timely, personal notice. On the facts of this case, the Trial Division Judge committed a palpable and overriding error in assuming prejudice. It had to be proved by evidence. Respondent's counsel conceded the absence of evidence that anyone was prevented by the lateness of the notice from attending the hearings. While two objectors said that due to the late notice they had not enough time to prepare, that evidence was insufficient to support a finding of significant prejudice.

As for the impact of the expropriation order on the objectors' substantive rights, it was noted that they had no proprietary interest in the expropriated land. Nor were they deprived of any public rights regarding the seabed or the water over it.

Turning to the nature of the administrative scheme, hearing officers neither decide whether the expropriation is desirable nor are even called upon to make a recommendation. They hear only the objectors, not the supporters, to the proposed expropriation and then report to the Minister on the nature and basis of the objections. In the instant case, many objectors shared a generalized concern about the dangers of nuclear weapons and their proliferation while others' concern was that Nanoose Bay was an inappropriate location for this type of military operation. A few more objections to the same effect could have had little impact upon the quality of the Minister's decision. There is also a political dimension to the hearing process: it sensitizes the Minister to the extent of public opposition and allows for enhanced political accountability. The extremely tight statutory timetable within which a hearing officer must complete the process indicates that procedural perfection was not Parliament's only concern. While it was not easy to access the public inconvenience that would result from the expropriation order being set aside, the Minister's position was that the continued availability of this facility is of great strategic and diplomatic importance to Canada. Judicial intervention in the administrative process always comes with a price tag and the Minister's concern for the public interest ought not to be rejected as unfounded.

Costello and Dickhoff v. City of Calgary, in which the Supreme Court of Canada held that, in municipal expropriations, the statutory conditions for the exercise of that power must be strictly complied with, was distinguished in that it concerned those having an interest in the expropriated land, in other words, where individual rights are affected. While case law does exist to the effect that expropriation legislation is to be strictly construed where it is the rights of the public that are extinguished, Society counsel failed to establish what public rights would be extinguished by this expropriation. This facility has operated for almost 40 years so it was not clear that the expropriation order would extinguish any existing public rights.

(2) The next issue was whether the hearing officer had discharged his statutory duty to report to the Minister the nature and grounds of the objection. The officer was not a mere "human tape recorder" but had to undertake a high degree of synthesis, summation and categorization to reduce some 2,700 objections to manageable proportions. In so doing, the officer exercised his discretion and it was not for the reviewing court to set aside what he had done because the court may have carried out the duty in some other way.

The report's purpose was not to enable the Minister to adjudicate a dispute, but to determine whether the matter warranted further investigation and perhaps the abandonment or modification of the expropriation. The public consultation is more part of the political than the legal process. The Judge below erred in concluding that the hearing officer's report was inadequate to discharge his duty to "report on the nature and grounds of the objections". While he might have provided a more discursive narrative and less by way of a quantitative account of the objections, the approach taken by the hearing officer was not unreasonable. He had done what Parliament required of him.

(3) The Trial Division Judge held that the hearing officer erred in law by refusing to hear objectors whose position was that the Government was acting in bad faith in respect of the proposed expropriation because the Minister was not represented at the hearing. But, for the orderly and efficient conduct of the hearing, the officer had to be allowed some latitude to exclude vexatious complaints and even if he did err in excluding them, this was a relatively inconsequential error which did not so flaw the process as to justify the Court's granting the relief sought herein.

(4) Paragraph 5(1)(c) of the Expropriation Act requires that the Minister's notice of intention to expropriate include an indication of the public purpose for which the interest is required but, under subsection 5(3), the bald statement that the interest is needed by the Crown for a purpose related to the safety or security of Canada and that it would not be in the public interest further to indicate that purpose is sufficient compliance with paragraph 5(1)(c). While invoking that provision for the notice of intention, the Minister then gave details of the expropriation's purpose at a press conference. The Society suggested that the disclosures revealed that the Minister cannot have addressed his mind to the subsection 5(3) requirement that it not be in the public interest to indicate the expropriation's purpose. In the alternative, these disclosures evidenced bad faith in that subsection 5(3) was invoked merely to limit the scope of objections. Even though the Minister's conduct did appear inconsistent, that was not a sufficient basis upon which to conclude that the Minister had acted in bad faith.

(5) Nor could the Court agree with the argument that the officer erred in refusing to entertain objections received after June 21, 1999. The statutory deadline for serving objections is 30 days after publication of notice of intention in the Canada Gazette. If objectors could file objections at any time, the hearing officer could not know how many objectors would appear or how to allocate time for oral presentations.

(6) The final issue was whether the officer misinterpreted subsection 3(2) in rejecting objections sent by regular post as not duly served. That provision is to the effect that objections are to be left at the Minister's office or served on him by registered mail. The Court was not prepared to accept the submission that regular mail was "left at" the Minister's office by Canada Post acting as an objector's agent. If "left at" included objections sent by regular post, there would have been no reason for the statutory provision for service by registered mail. The officer did not err in declining to waive this irregularity.

Per Strayer J.A.: The majority opinion, that the appropriate standard of review herein was "simple unreasonableness", could not be concurred in. The standard was that of patent unreasonability. The hearing officer enjoyed a very broad discretion. He was required to submit his report within a short time period notwithstanding the number of objections or their content. It was obvious that the officer would have to resort to various expedients to meet the deadline and one could hardly imagine a broader discretion being conferred upon an officer in discharging a statutory duty. Absent patent unreasonability, how could a court second-guess his conduct?

statutes and regulations judicially

considered

Expropriation Act, R.S.C., 1985, c. E-21, ss. 3(2), 5(1)(a), (b), (c), (d), (2), (3), 8(1)(a), (b), (3), 9, 10(1), (2), (4)(a), (b), (c), (d), (5), (6), (7), (8), 11(1)(a)(ii), 14(1)(b).

cases judicially considered

applied:

Montreal Street Railway Company v. Normandin, [1917] A.C. 170 (P.C.); British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re), [1994] 2 S.C.R. 41; (1994), 114 D.L.R. (4th) 193; [1994] 6 W.W.R. 1; 91 B.C.L.R. (2d) 1; 21 Admin. L.R. (2d) 1; 44 B.C.A.C. 1; 166 N.R. 81; 71 W.A.C. 1; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; (1995), 130 D.L.R. (4th) 193; [1996] 2 C.N.L.R. 25; 190 N.R. 89; London and Clydeside Estates Ltd. v. Aberdeen District Council, [1980] 1 W.L.R. 182 (H.L.); R. v. Immigration Appeal Tribunal, ex parte Jeyeanthan, [2000] 1 W.L.R. 354 (C.A.).

distinguished:

Costello and Dickhoff v. City of Calgary, [1983] 1 S.C.R. 14; (1983), 41 A.R. 318; 143 D.L.R. (3d) 385; [1983] 2 W.W.R. 673; 23 Alta. L.R. (2d) 380; 20 M.P.L.R. 170; 46 N.R. 54; Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 31 O.R. (3d) 576; 142 D.L.R. (4th) 206; 45 Admin. L.R. (2d) 1; 36 M.P.L.R. (2d) 163; 206 N.R. 321; 97 O.A.C. 81; 7 R.P.R. (3d) 1; Thomson v. Halifax Power Co. (1914), 16 D.L.R. 424 (N.S.S.C.); Ostrom and Sidney (Township) (Re) (1888), 15 O.A.R. 372 (Ont. C.A.); Central Ontario Coalition Concerning Hydro Transmissions Systems v. Ontario Hydro (1984), 46 O.R. (2d) 715; 10 D.L.R. (4th) 341; 8 Admin. L.R. 81; 27 M.P.L.R. 165; 4 O.A.C. 249 (Div. Ct.).

referred to:

Medi-Data Inc. & Book Bargains Inc. v. Attorney General of Canada, [1972] F.C. 469; (1972), 26 D.L.R. (3d) 1 (C.A.); Lepage v. Department of External Affairs (1984), 60 N.R. 329 (F.C.A.); Cleary v. Canada (Correctional Services) (1990), 44 Admin. L.R. 142; 56 C.C.C. (3d) 157; 108 N.R. 225 (F.C.A.); Ginsberg v. Canada, [1996] 3 F.C. 334; (1996), 96 DTC 6372; 198 N.R. 148 (C.A.); Kyte v. Canada (Minister of National Revenue--M.N.R.), [1997] 2 C.T.C. 14; (1996), 97 DTC 5022; 206 N.R. 202 (F.C.A.); Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 179 B.C.A.C. 170; 302 N.R. 34; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2D) 1; 281 N.R. 1.

APPEAL by the Attorney General from a Federal Court Trial Division decision ((2002), 46 C.E.L.R. (N.S.) 119; 217 F.T.R. 279), quashing an expropriation order for (1) the hearing officer's non-compliance with a mandatory notice provision in the Expropriation Act and (2) the officer's failure to provide sufficient detail regarding the objections in his report to the Minister. Appeal allowed.

appearances:

John J. L. Hunter, Q.C. and K. Michael Stephens for appellant.

Andrew Gage and David Wright for respondent.

solicitors of record:

Hunter Voith, Vancouver, for appellant.

West Coast Environmental Law Association, Vancouver, for respondent.

The following are the reasons for judgment rendered in English by

Evans J.A.:

A. INTRODUCTION

[1]More than 3,000 objections were served on the Minister of Public Works and Government Services (the Minister) when he announced in May 1999 that the Government of Canada intended to expropriate a portion of the seabed and foreshore of Nanoose Bay, British Columbia, for the continued underwater testing of torpedoes by the American and Canadian navies. The Minister signed the notice of intention to expropriate at the request of the Minister of National Defence.

[2]A hearing officer was appointed to hear the objectors and to report to the Minister on the nature and grounds of the objections. The hearing officer completed his task within the period permitted by statute, 60 days from the day of his appointment. After receiving the report, the Minister affirmed the expropriation, with a slight reduction in the area expropriated.

[3]The Society Promoting Environmental Conservation (SPEC) is a public interest group based in Vancouver that has been involved in environmental issues for over 30 years. Its members opposed the expropriation at the public hearings and elsewhere. SPEC brought an application for judicial review of the Minister's expropriation order. The application was successful and the order was quashed. The Applications Judge's decision is reported as Society Promoting Environmental Conservation v. Canada (Attorney General) (2002), 46 C.E.L.R. (N.S.) 119 (F.C.T.D.). This is an appeal by the Attorney General from that decision. The Applications Judge's decision has been stayed pending the disposition of this appeal.

[4]Despite the large number of those objecting to expropriation, including the Government of British Columbia, which owns the land in question, and the vigorous and wide-ranging public policy debate on the environmental and security aspects of the military operations for which the land was expropriated, this appeal turns principally on two relatively narrow, although not necessarily easy, issues of administrative law.

[5]First, did the hearing officer's breach of the duty imposed by the Expropriation Act, R.S.C., 1985, c. E-21, to give notice of the date and place of the public hearings to all the objectors within seven days of his appointment warrant setting aside the expropriation order? Second, did the hearing officer's report to the Minister adequately convey "the nature and grounds of the objections" as required by the Act? If not, did this error warrant setting aside the expropriation order?

B. FACTUAL BACKGROUND

[6]The origin of this litigation was the inability of the governments of Canada and British Columbia to agree on the renewal of a licence with respect to the part of the seabed of the Strait of Georgia, between Vancouver Island and the mainland, where, for nearly 40 years, Canada has operated a military facility, the Canadian Forces Maritime Experimental and Test Ranges (CFMETR). Since 1965 CFMETR has been used by Canada for training naval personnel, and jointly by the navies of Canada and the United States (as well as those of other NATO allies and Chile), for testing naval military equipment, including torpedoes, pursuant to renewable international agreements.

[7]The 10-year seabed licence relating to CFMETR was due to expire on September 4, 1999. Following the failure of the parties to agree on terms in the spring of that year and in view of the impending expiry of the licence, on May 14, 1999 the Minister registered in British Columbia land title registries a notice of an intention to expropriate the part of the seabed and foreshore of Nanoose Bay used in connection with CFMETR. In a letter to the provincial Government, the Minister of National Defence explained the commencement of proposed expropriation proceedings by emphasizing the importance to Canada and its allies of uninterrupted access to CFMETR and the significance of Canada's ability to conduct these operations for "our defence alliances, our treaty obligations and the good training of Canadian naval personnel."

[8]The precise reason for the collapse of the negotiations between British Columbia and Canada for a new seabed licence is not material to the disposition of this appeal. However, it is important to note that significant public opposition in the Province to the continued use of CFMETR centred on the fact that it could involve the presence of both nuclear warheads and nuclear-powered vessels of the U.S. Navy. This was regarded as posing a threat to the health and safety of the residents of a densely populated area, creating other environmental hazards, constituting a breach of international law, and being conducive to neither Canada's national security nor world peace.

[9]On July 5, 1999, the Minister appointed the Honourable D. M. M. Goldie, a retired judge of the British Columbia Court of Appeal, to be the hearing officer. He heard 215 objectors in person during almost four weeks of public hearings on the objections from July 19 to 30 in Nanaimo, and from August 3 to 17 in Vancouver, and "heard" another 20 objectors in writing. On September 2, 1999, Mr. Goldie submitted to the Minister a 300-page report on the objections, both written and oral, to the proposed expropriation. After considering the report, the Minister made the expropriation order on September 10, 1999. In response to the submissions of British Columbia, the land expropriated was somewhat less than that included in the Minister's notice of intention.

[10]On September 13, 1999, the Minister issued a statement of reasons for the order. However, since the challenge to the validity of the order is to the process followed by Mr. Goldie, and not to the grounds on which the Minister exercised his discretion, it is not necessary to consider those reasons in any detail. Suffice it to say that the Minister relied on the strategic and diplomatic importance of continuing underwater testing of torpedoes and naval training, and the physical and climatic characteristics of Nanoose Bay that made CFMETR an ideal location for these activities. The Minister's reasons responded to the principal objections to the expropriation.

C. THE DECISION OF THE TRIAL DIVISION

[11]The Applications Judge decided the application for judicial review on two grounds. First, he held that the hearing officer had failed to comply with a mandatory provision in the Expropriation Act by notifying 570 objectors of the dates and locations of the public hearings two weeks after the expiry of the statutory notice period. The Applications Judge stated that the objectors who had received late notice were effectively prejudiced. He concluded that non-compliance with the procedural provisions of expropriation legislation invalidates any resulting order and, accordingly, set aside the Nanoose Bay expropriation order.

[12]Second, the Judge held that the hearing officer's report was defective because it did not spell out in sufficient detail the bases of the various objections to the expropriation. Thus, while the report summarized in general terms the nature of the objections, particularly the threats to the environment, to public health and security and to Canada's international legal obligations posed by the presence of nuclear warheads and nuclear-powered vessels in the Strait of Georgia, it did not adequately describe the grounds on which these objections were based. Instead, the report purported to categorize the objectors by reference to certain "group characteristics" which indicated their levels of political activism, including opposition to the continued operation of CFMETR, and their beliefs on matters pertaining to, for example, the Government of the United States, its military forces and their links to the defence industry, the truthfulness of statements by the Governments of Canada and the United States on the risks of nuclear accidents, and the dangers of nuclear proliferation. Accordingly, he concluded, the hearing officer had failed to discharge his statutory duty to report to the Minister "on the nature and grounds of the objections".

[13]SPEC also challenged the legality of the hearing officer's process on 15 other grounds, most of which the Applications Judge did not find it necessary to decide because of his rulings on the issues described above. However, he stated (at paragraph 24) that he was satisfied that the hearing officer complied with the procedural provisions of the Act, except for the time limitation on the giving of notice, and (at paragraphs 95-96) that the hearing officer had erred in rejecting objections on the ground that they alleged bad faith on the part of the Government of Canada.

[14]Of SPEC's 15 issues that the Applications Judge did not deal with, counsel relied on three in this appeal, in the event that this Court concluded that the Applications Judge erred in setting aside the expropriation order on the grounds on which he based his decision. SPEC argues that, either individually or collectively, these additional defects are sufficient to warrant this Court's quashing the expropriation order. I describe these three other issues when I deal with them later in these reasons.

D. THE LEGISLATIVE SCHEME

[15]As far as this appeal is concerned, the formal process of expropriation prescribed by the Expropriation Act starts with the giving of notice by the Minister of an intention to expropriate land. Because the land in question in this case was, in the opinion of the Minister, required "for a purpose related to the safety or security of Canada or a state allied or associated with Canada and it would not be in the public interest further to indicate that purpose", the Minister only had to give this as the purpose, without further elaboration, in the notice of the intention to expropriate.

Expropriation Act, R.S.C., 1985, c. E-21

5. (1) Whenever, in the opinion of the Minister, any interest in land is required by the Crown for a public work or other public purpose, the Minister may request the Attorney General of Canada to register a notice of intention to expropriate the interest, signed by the Minister, setting out

(a) a description of the land;

(b) the nature of the interest intended to be expropriated and whether the interest is intended to be subject to any existing interest in the land;

(c) an indication of the public work or other public purpose for which the interest is required; and

(d) a statement that it is intended that the interest be expropriated by the Crown.

(2) On receiving from the Minister a request to register a notice of intention described in this section, the Attorney General of Canada shall cause the notice, together with a plan of the land to which the notice relates, to be registered in the office of the registrar for the county, district or registration division in which the land is situated, and, after causing such investigations and searches to be made respecting the state of the title to the land as appear to him to be necessary or desirable, the Attorney General of Canada shall furnish the Minister with a report setting out the names and latest known addresses, if any, of the persons appearing to have any right, estate or interest in the land, so far as he has been able to ascertain them.

(3) Where, in the opinion of the Minister, the interest to which a notice of intention described in this section relates is required by the Crown for a purpose related to the safety or security of Canada or a state allied or associated with Canada and it would not be in the public interest further to indicate that purpose, a statement in the notice to the effect that the interest is required by the Crown for such a purpose is sufficient compliance with paragraph (1)(c) without further indication thereof.

[16]The Act requires the Minister to give public notice of the intention to expropriate and provides an opportunity for members of the public to serve on the Minister written objections to the proposed expropriation.

8. (1) Where a notice of intention to expropriate an interest in land has been registered, the Minister shall cause a copy of the notice

(a) to be published in at least one issue of a publication, if any, in general circulation within the area in which the land is situated, within thirty days after the registration of the notice, and

(b) to be sent to each of the persons whose names are set out in the report of the Attorney General of Canada referred to in subsection 5(2), as soon as practicable after the registration of the notice,

and forthwith after causing a copy thereof to be sent by registered mail to each of the persons referred to in paragraph (b), shall cause the notice to be published in the Canada Gazette.

. . .

(3) There shall be included in any notice or copy thereof published or sent as described in subsection (1) a statement of the provisions of section 9 as that section applies to the intended expropriation of the interest to which the notice relates.

. . .

9. Any person who objects to the intended expropriation of an interest in land to which a notice of intention relates may, within thirty days after the day the notice is given, serve on the Minister an objection in writing stating the name and address of that person and indicating the nature of the objection, the grounds on which the objection is based and the nature of the interest of that person in the matter of the intended expropriation.

[17]If objections are served on the Minister within 30 days from when notice of the intention to expropriate was given, public hearings must be held and the Minister must request the Attorney General to appoint a hearing officer to conduct hearings with respect to the objections.

10. (1) Forthwith after the expiration of the period of thirty days referred to in section 9, the Minister shall, if the Minister has been served with an objection under that section, order that a public hearing be conducted with respect to the objection and any other objection to the intended expropriation that has been or may be served on the Minister.

(2) Where the Minister orders that a public hearing be conducted with respect to an objection or objections, the Minister shall immediately request the Attorney General of Canada to appoint a hearing officer to conduct the hearing and the Attorney General of Canada shall thereupon appoint a suitable person, who is not a person employed in the Public Service as defined in subsection 3(1) of the Public Service Superannuation Act, to be a hearing officer for that purpose.

[18]The principal statutory responsibilities of the hearing officer are as follows:

10. . . .

(4) A hearing officer appointed under this section shall

(a) as soon as possible after the appointment of the hearing officer and in any case not later than seven days after the date thereof, fix a suitable time and place for the public hearing and cause notice of the time and place to be given by publishing it in at least one issue of a publication, if any, in general circulation within the area in which the land is situated and by sending it to each of the persons whose names are set out in the report of the Attorney General of Canada referred to in subsection 5(2) and each other person who served an objection on the Minister;

(b) at the time and place fixed for the public hearing, provide an opportunity to be heard to each person appearing thereat who served an objection on the Minister or such of those persons as the hearing officer deems necessary in order to report to the Minister on the nature and grounds of the objections;

(c) make such inspection of the land as the hearing officer deems necessary and receive and consider any written representations filed with the hearing officer before or at the hearing by any person who served an objection on the Minister; and

(d) within thirty days after the appointment of the hearing officer, prepare and submit to the Minister a report in writing on the nature and grounds of the objections made.

. . .

(8) At the request of any hearing officer, the Attorney General of Canada may extend, for a period not exceeding thirty days, the time limited by this section for preparing and submitting to the Minister a report.

[19]As for the conduct of the hearings themselves, the following provisions are relevant:

10. . . .

(5) A hearing officer is not required to give any notice, hold any hearing or take any other action required by subsection (4) with respect to any objection served on the Minister under section 9 and may at any time disregard any such objection if it appears to the hearing officer that the objection is frivolous or vexatious or is not made in good faith.

(6) Any person who may be heard at a public hearing under this section may be represented by counsel at the hearing.

(7) A public hearing under this section shall, subject to this section, be conducted in such manner as may be determined by the hearing officer.

[20]The Act confers on the Minister the following powers after the submission of the hearing officer's report:

11. (1) Where a notice of intention has been given, the Minister may

(a) confirm the intention, in the manner provided in section 14,

. . .

(ii) if an objection has been filed with him under section 9 within the period of thirty days referred to in that section, after receiving and considering the report of a hearing officer appointed to conduct a public hearing with respect thereto, or

. . .

14. (1) The Minister may confirm an intention to expropriate an interest in land to which a notice of intention relates, or a more limited interest therein, by requesting the Attorney General of Canada to register a notice of confirmation, signed by the Minister, setting out,

. . .

(b) if the interest expropriated is a more limited interest than the interest to which the notice of intention relates, a statement that the intention to expropriate the interest to which the notice of intention relates is confirmed except as expressly specified in the statement.

E. ISSUES AND ANALYSIS

Issue 1    Did the Applications Judge err in law in concluding that the hearing officer's failure to give notice to all the objectors within the time specified in paragraph 10(4)(a) warranted quashing the expropriation order?

[21]For ease of reference, I reproduce paragraph 10(4)(a):

10. . . .

(4) A hearing officer appointed under this section shall

(a) as soon as possible after the appointment of the hearing officer and in any case not later than seven days after the date thereof, fix a suitable time and place for the public hearing and cause notice of the time and place to be given by publishing it in at least one issue of a publication, if any, in general circulation within the area in which the land is situated and by sending it to each of the persons whose names are set out in the report of the Attorney General of Canada referred to in subsection 5(2) and each other person who served an objection on the Minister;

[22]For the most part, the facts relevant to this issue are not in dispute. As a result of a computer-related error, 570 of the 2,465 notices mailed (both totals including some duplicates) were not sent out to objectors by July 12, seven days after the hearing officer's appointment on July 5. The error was discovered during the Nanaimo hearings. Amended notices were sent out on July 27, and the hearings to be held in Vancouver were extended by two days. On the same day, the hearing officer explained the error, and stated publicly that he was treating it as an irregularity and that the hearings would continue. I should add that, on July 5, the hearing officer had published notices of the hearings in as many as three local newspapers, even though paragraph 10(4)(a) only requires that notice be given in an issue of one publication circulating in the area.

[23]The one factually contentious question relating to the late notice issue is whether those who were not individually given notice were thereby prejudiced. Without referring to the evidence, the Applications Judge said that they were. The Attorney General challenges this finding. I deal with this question later in these reasons.

[24]Two aspects of the legal analysis seem clear. First, the hearing officer was under a legal duty to send a notice to each person who had served an objection on the Minister. Paragraph 10(4)(a) is introduced by the words, "[a] hearing officer appointed under this section shall" [underlining added], not "may". Thus, if the hearing officer had refused to send notices to objectors, an order of mandamus could, in principle, have issued to require him to do so. Second, it is not disputed that the hearing officer was in breach of the duty imposed by paragraph 10(4)(a): he served the notices on July 27, and not by July 12 as required by the Act in the circumstances of this case. The question in dispute is thus not whether the hearing officer was in breach of a legal duty, but whether, in all the circumstances, the breach warrants setting aside the expropriation order.

[25]One other preliminary point should be noted. SPEC rests its argument on the notice issue entirely on the failure of the hearing officer to comply with the statutory duty imposed by paragraph 10(4)(a). Counsel did not argue before us that the hearing officer's error also amounted to a breach of the common law duty of fairness to provide reasonable notice to those entitled to be heard. In this regard, it is relevant to recall that the hearing officer gave public notice of the dates and locations of the hearings in three local newspapers and extended the length of the Vancouver hearings in an attempt to mitigate any possible loss of an opportunity to be heard as a result of the omission to give personal notice within the statutorily prescribed time.

Mandatory/directory: the jurisprudence

[26]At one time, courts approached the question of whether a public authority's breach of a statutory procedural or formal requirement invalidated administrative action to which it applied by asking whether the requirement in question was mandatory or directory in nature. If it was mandatory, then non-compliance was said to render the resulting action void, whereas if it was directory, it did not. However, in some cases it has been said that administrative action is invalid if taken without substantial compliance with a statutory procedural provision, even though it is only directory (see, for example, Medi-Data Inc. & Book Bargains Inc. v. Attorney General of Canada, [1972] F.C. 469 (C.A.), at page 487), while in others administrative action in breach of a mandatory provision has been upheld on the ground that there had been substantial compliance (see, for example, Lepage v. Department of External Affairs (1984), 60 N.R. 329 (F.C.A.), at page 330.

[27]Nonetheless, long before the phrase "a pragmatic or functional analysis" entered the Canadian legal lexicon and pervaded the judicial approach to problems of administrative law, courts did not view the mandatory/directory distinction in an abstract manner. The relevant question was whether invalidating administrative action for breach of the statute would be inconvenient or unjust, or would otherwise be inconsistent with the purposes of the legislation. If judicial intervention would have these consequences, the statutory provision would be labelled directory and the impugned administrative action upheld or, in the alternative, the Court might exercise its discretion not to grant the relief requested, as was the case, for example, in Cleary v. Canada (Correctional Services) (1990), 44 Admin. L.R. 142 (F.C.A.), at pages 145-146.

[28]Characterizing a statutory provision, and determining the legal consequences of non-compliance, by reference to the consequences and seriousness of the breach has a decidedly pragmatic and functional flavour. The classic statement of this approach is found in Montreal Street Railway Company v. Normandin, [1917] A.C. 170 (P.C.), at page 175 where it was said:

When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, . . . .

[29]Much more recently, in British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re), [1994] 2 S.C.R. 41, the Supreme Court of Canada returned to the mandatory/directory distinction. The statute under consideration in that case provided that, if an application for the discontinuance of an uneconomic railway service is refused, the National Transportation Agency (NTA) shall reconsider the application at intervals of not more than five years. The question was whether an order in council varying an order of the agency was invalid because the NTA had not performed its statutory duty to reconsider. Writing for the majority, Iacobucci J. held that the failure of the NTA to reconsider did not invalidate the order so as to render it incapable of variation by the Governor in Council on an appeal.

[30]In addressing the legal consequences of a failure to observe a statutory procedural duty, Iacobucci J. reaffirmed the importance of assessing the "public inconvenience or injustice" likely to follow from holding administrative action invalid for non-compliance. He said (at pages 123-124):

The "mandatory" and "directory" labels themselves offer no magical assistance as one defines the nature of a statutory direction. Rather, the inquiry itself is blatantly result-oriented.

. . .

Thus, the manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means. In this sense, . . . . the principle is "vague and expedient" . . . This means that the court which decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed by the usual process of statutory interpretation. But the process perhaps evokes a special concern for "inconvenient" effects, both public and private, which will emanate from the interpretive result.

[31]Citing this case in Blueberry River Band Indian v. Canada (Department of Indian and Northern Development), [1995] 4 S.C.R. 344, at page 374, McLachlin J. said:

This Court has since held that the object of the statute, and the effect of ruling one way or the other, are the most important considerations in determining whether a directive is mandatory or directory. . . .

See also Ginsburg v. Canada, [1996] 3 C.F. 334 (C.A.) and Kyte v. Canada (Minister of National Revenue-- M.N.R.), [1997] 2 C.T.C. 14 (F.C.A.), at paragraph 9, where this Court adopted an overtly balancing approach in order to characterize a provision as directory or mandatory.

[32]A similar disillusionment with the ability of the abstract concepts of "mandatory" and "directory", and "void" and "voidable", to deliver just and sensible solutions to fact-specific problems was expressed in London and Clydeside Estates Ltd. v. Aberdeen District Council, [1980] 1 W.L.R. 182 (H.L.). The question in that case was whether a certificate of alternative development issued by the respondent was invalid because it did not contain the statutorily required statement of the appellant's right to appeal the certificate to the Secretary of State for Scotland. Whether the certificate had been validly issued affected the amount of compensation payable to the appellants on the compulsory acquisition of their property by the respondent.

[33]Despite its length, the following well-known passage from the opinion of Lord Hailsham of St. Marylebone L.C. (at pages 189-190) is worth quoting in its entirety:

When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences on himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like `mandatory', `directory', `void', `voidable', `nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition.

[34]These "wise words" have recently been endorsed in the English Court of Appeal by Lord Woolf M.R. (as he then was) in R. v. Immigration Appeal Tribunal, ex parte Jeyeanthan, [2000] 1 W.L.R. 354 (C.A.), at page 360, where the Court adopted, in effect, a pragmatic and functional approach to determining whether administrative action was rendered invalid as a result of a failure to comply with a statutory procedural requirement.

Mandatory/directory: a pragmatic and functional analysis

[35]The jurisprudence of the Supreme Court of Canada on the mandatory/directory distinction, and the contextual analysis now required by a pragmatic and functional approach to issues of administrative law, suggest a reformulation of the legal tests for determining when a reviewing court should set aside administrative action on the ground that it was taken in breach of a statutory provision of a procedural or formal nature. An analytical framework should include the following considerations:

(1) Is compliance with the statutory provision obligatory or permissive? If it is permissive, the inquiry is at an end because no legal consequences normally follow merely from non-compliance with a provision that is permissive. If, on the other hand, the provision is obligatory, the consequences of non-compliance must be determined by reference to the circumstances of the case, including the factors described in (4) below.

Whether a provision is obligatory or permissive is a question of statutory interpretation to be undertaken according to the usual principles, including the ordinary and grammatical meaning of the statutory text, and the legislative purpose, both general and specific. Thus, for example, "shall" normally indicates a legislative intention to impose a legal duty to comply, while "may" normally indicates that a procedural provision is permissive.

(2) If compliance with a statutory provision is obligatory, a refusal by a public authority to comply when requested may enable a court to issue an order requiring it to perform its legal duty. The circumstances in which a court will issue an order of mandamus define when it may order compliance with a formal or procedural statutory provision.

(3) If compliance with a statutory provision is obligatory, failure to comply may enable a court on an application for judicial review to set aside or declare invalid administrative action taken in breach of the statutory duty. Legislative intent must be the focus of the inquiry, both when a court is determining whether a statutory provision is obligatory or permissive and, if obligatory, what should be the legal consequences of non-compliance.

However, since the factual circumstances of non-compliance are infinitely variable, legislative intent regarding the consequences of non-compliance must be determined in light of all the relevant circumstances of the particular case. In contrast, whether a provision is obligatory or permissive is not determined by reference to particular facts. It is a question of statutory interpretation that does not depend on the facts of any given case.

(4) The factors to be considered in determining whether non-compliance with an obligatory statutory provision invalidates administrative action include the following:

(i) The importance of the provision, both as regards the overall purposes of the statutory scheme and the purposes served by the imposition of the procedural duty. A high degree of importance in either respect indicates a legislative intent that administrative action taken in breach of the procedural provision may be set aside.

(ii) The seriousness of the breach of the statutory duty: a technical violation is an indicator that the court should not intervene, while a public authority that flouts the statutory requirement can expect judicial intervention.

(iii) The impact of the impugned administrative action on the rights of individuals: the more important the individual rights affected and the more serious the effect on them, the more likely it is that a reviewing court will set aside administrative action taken in breach of a statutory procedural provision.

(iv) Conversely, the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity.

(v) The nature of the administrative process of which the statutory provision is part: the meticulous protection of procedural rights is likely to be regarded as more important when they are integral to a process of a broadly adjudicative nature than when they are part of an essentially political process culminating in an order of general application. Courts have traditionally tended to exercise less strict procedural surveillance over the process (including public consultation) whereby ministers determine broad polycentric public policy questions.

(5) Even if a failure to comply with an obligatory statutory procedural provision is found to invalidate administrative action, a reviewing court still retains a discretion to deny relief by reference to one or more of the accepted discretionary remedial bars. Some of these may already have been taken into account in determining whether, in all the circumstances, the breach invalidated the impugned action, such as the trivial nature of the breach and public inconvenience. However, other discretionary bars to granting relief on an application for judicial review may still be in play: delay, lack of standing and the existence of an adequate alternative remedy, for instance.

Applying the analysis to the facts

Is the notice provision obligatory or permissive?

[36]As I have already indicated, it is agreed that paragraph 10(4)(a) of the Expropriation Act imposed a duty on the hearing officer to send a notice regarding the public hearings within seven days of his appointment and that, as a result of an error, the duty was breached because the notices sent with respect to 570 objections were 15 days late. In fact, the number of objectors who received notice late may have been less than 570 because some filed more than one objection. Nonetheless, since all counsel accepted that 570 objectors did not receive notice in time, I shall proceed on this assumption in these reasons.

[37]The Applications Judge seems to have regarded the obligatory nature of the notice provision as almost conclusive of the legal consequences of non-compliance when he said (at paragraph 30):

Given the constant use of mandatory language as emphasized in the provisions quoted, without some other compelling evidence to the contrary, the general conclusion can be drawn that the requirements are mandatory.

If the Judge meant that administrative action taken in breach of a statutory procedural duty will be set aside on judicial review only "in the absence of some compelling evidence to the contrary", he was, with respect, mistaken. Once the statute has been construed as imposing a procedural duty, the onus remains on an applicant to establish that, in all the circumstances, administrative action should be set aside for non-compliance.

[38]The consequences of non-compliance with a statutory procedural duty can only be determined on the basis of a broader pragmatic and functional inquiry. Furthermore, while the contextual assessment required by this approach is far from mechanical, it is not the "purely subjective analysis" that the Applications Judge thought (at paragraph 36) was prescribed by Normandin, supra.

Seriousness of the breach

[39]The hearing officer's breach was not flagrant, but was the result of an error which he corrected as soon as it came to light and attempted to mitigate by offering additional time for the hearings due to start in Vancouver after the personal notices were given. Moreover, the objectors affected constituted only about 25% of the large number who were entitled to personal notice.

[40]Nonetheless, for the hearing officer to have given notice 22 days after his appointment, when the statute requires it to be given within seven days, was certainly not a trivial breach. On the other hand, it was not alleged before us that the breach was so destructive of the hearing process as to deny the 570 objectors a reasonable opportunity to be heard in accordance with the duty of fairness. It is relevant again to note here that the hearing officer more than discharged his duty to give public notice of the hearings in local newspapers. On balance, I conclude that the extent of the hearing officer's breach was neither very serious nor trivial. This factor does not clearly indicate that the expropriation order should be set aside.

Importance of the notice provision in the statutory scheme

[41]The opportunity for objectors to an expropriation order to be heard and for the basis of their objections to be conveyed to the Minister is an important part of the statutory scheme. As well as bringing to the attention of the Minister matters that may have been overlooked or downplayed when the decision to expropriate was first taken, public consultation injects a healthy democratic element into the process culminating in the exercise by the Minister of a broad discretion: see British Columbia (Attorney General) v. Canada (Attorney General), supra, at page 124. Notice is normally regarded as a condition precedent to the effective exercise of rights to participate at a hearing.

[42]However, I mention again that the statute provides not only for the giving of personal notice, but also for public notice, which the hearing officer gave in timely fashion through local newspapers. Moreover, individuals' right to be heard is not absolute, but is subject to the hearing officer's discretion. Paragraph 10(4)(b) provides that the hearing officer must hear each person who served an objection, "or such of those persons as the hearing officer deems necessary in order to report to the Minister on the nature and grounds of the objections".

[43]I conclude that paragraph 10(4)(a) is an important element in the expropriation process in that it is designed to ensure that objectors are able to exercise their right to be heard before the Minister decides whether to affirm the order.

Seriousness of the impact of the breach on procedural rights

[44]The issue here is to determine to what extent the lateness of the notice impaired the objectors' ability to effectively exercise their right to participate at the public hearings held to hear objections to the expropriation. This is the same as asking what degree of prejudice the 570 objectors sustained as a result of the breach of the hearing officer's duty to give timely notice of the hearings.

[45]Prejudice could be established by demonstrating that, for example, objectors who did not receive timely notice did not know when or where the hearings were to be held until they received the late personal notice, by which time they had commitments that prevented them from attending the Vancouver hearings. Or, it might be shown that objectors did not have sufficient time to prepare their presentation. That it might be inconvenient or more expensive for objectors to attend the Vancouver hearings would for present purposes constitute a low level of prejudice.

[46]The Applications Judge inferred (at paragraph 44) from the facts that the failure to give timely notice had the result of "effectively prejudicing" the 570 objectors in question. In my respectful opinion, however, prejudice cannot be assumed on the facts of this case, but must be proved by evidence. Prejudice was not a necessary consequence of the breach of paragraph 10(4)(a) because notice was in fact given before the start of the Vancouver hearings, which were extended for an additional two days. In addition, many of those who were interested enough to serve an objection were likely to keep themselves informed of developments in the expropriation process and may well have seen the public notices in local newspapers and been aware of coverage in the media, including reports of the Nanaimo hearings.

[47]Nor can it be assumed that, if they had received timely notice, most of the 570 objectors would have appeared at the hearings. Of the almost 2400 objectors (with duplicates removed), less than 10% appeared at the hearings.

[48]Counsel for SPEC conceded that there was no evidence before the Applications Judge that the lateness of the notice prevented anyone from attending the hearings. Indeed, the attendance rate of the 570 objectors who received late notice was more than double that of the objectors taken as a whole. Consequently, the only relevant prejudice is that some or all of the 17% of the 570 objectors who attended the hearings might have been able to make more effective presentations if they had received notice in time.

[49]Two objectors said that the late notice meant that they did not have enough time to prepare. However, this is an insufficient evidential basis for a finding of significant prejudice, which, in all the circumstances, cannot be assumed. Hence, in my respectful opinion, without the evidence necessary to prove prejudice, the Applications Judge made a palpable and overriding error by inferring it from these facts.

[50]That a few of the hundred or so recipients of late notice who attended the hearings might have made a more effective presentation if they had received timely notice does not justify a finding of prejudice in the context of this case. Again, I note that counsel did not allege that the statutory breach constituted a denial of the duty of fairness.

Impact of the expropriation order on objectors' substantive rights

[51]In addition to the impact of the late notice on the objectors' right to be heard, it is also relevant to consider to what extent they were adversely affected by the expropriation order made in breach of their statutory procedural rights. They had no proprietary interest in the expropriated land. The land owner, the province of British Columbia, was duly notified, communicated its objections to the hearing officer and was not a party to the application for judicial review. Nor was it alleged that the expropriation order deprived the objectors of any public rights with respect to the expropriated seabed or the water over it.

[52]That the expropriation order did not adversely affect any rights of the objectors is an indication that Parliament should not be taken to have intended that a failure to adhere to the statutory procedures warrants a reviewing court in setting aside the order.

Nature of the administrative process

[53]An assessment of the significance of the failure to comply with a statutory procedural provision should take account of the nature of the administrative scheme of which the provision is a part. In the context of the Expropriation Act, it is important to emphasize that hearing officers have no responsibility for deciding whether it is desirable to expropriate the land. Indeed, they are not even called upon to make a recommendation. Their function is only to report to the Minister on the nature and basis of the objections. They hear only from objectors and not from supporters of the proposal to expropriate.

[54]The principal role of the hearing officer is thus largely informative: to ensure that the Minister does not exercise the statutory discretion without being aware of the number and basis of the objections to a proposed expropriation. Many objectors to the Nanoose Bay expropriations had similar or overlapping concerns. Most were based on principle or a generalized concern about the dangers of nuclear weapons and their proliferation, about Canada's international legal obligations, and about the environmental and health and safety risks of the use of nuclear power as a source of energy. Others, however, focussed on the particular unsuitability of Nanoose Bay as a site for the operations carried out at CFMETR. In view of the fact that the hearing officer heard from 220 objectors, including the Government of British Columbia, and reported on their objections, I am not persuaded that the quality of the Minister's decision was likely to have been significantly improved if he had heard from a few more.

[55]The hearing process also has a political dimension. It is a form of public consultation that sensitizes the Minister to the nature, depth and breadth of the public opposition to an expropriation and enhances political accountability for the ultimate decision. Moreover, the hearings themselves and the publicity that they generate can help further engage public opinion on a proposed expropriation, especially since the only voices heard at the hearings are those of the objectors. A process in which the Minister must decide whether to affirm his or her stated intention to expropriate land on broad grounds of public policy is far removed from an adjudication of rights, a process in which courts have traditionally attached the utmost importance to the punctilious protection of individuals' procedural rights.

[56]I do not wish to minimize the value to be attached to public participation in administrative decision-making that is of concern to a large number of people and involves important issues of public policy. However, the extremely tight statutory timetable within which the hearing officer had to complete the process is an indication that procedural perfection was by no means Parliament's only concern.

Public inconvenience

[57]The public inconvenience likely to be caused by the invalidation of the expropriation order is hard to gauge. If the expropriation order is set aside, the hearing process will have to be repeated, with the expense and delays that will inevitably be involved. The Minister has also stated that the continuous availability of CFMETR is of great strategic and diplomatic importance to Canada. Setting aside the order would undoubtedly cause a significant degree of public inconvenience.

Conclusion

[58]On the basis of the above pragmatic and functional analysis, I have concluded that the hearing officer's failure to give timely notice to all the objectors does not warrant the Court in setting aside the expropriation order. The breach of statutory duty was not egregious. It resulted from an error which the hearing officer promptly corrected. He repaired as best he could any deleterious effects of the mistake. There was no evidence of significant prejudice to those who received late personal notice. And, to whatever extent these objectors' presentations at the hearings may have been less effective than they would have been if the objectors had received personal notice in time, there is little reason to think that any diminution of the effectiveness of their presentations materially affected the Minister's ultimate decision. Judicial intervention in the administrative process always carries a price tag. In view of the grounds on which the Minister has relied to indicate why delay would be contrary to the public interest, it is not for the Court to dismiss his concern as unfounded.

[59]For those who still find comfort in the "familiar landmarks" of the legal terrain (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 24), a pragmatic and functional analysis has led me to conclude that, in giving notice two weeks late, the hearing officer breached a directory statutory provision. In other circumstances, failure to comply with paragraph 10(4)(a) may constitute breach of a mandatory requirement. In my view, however, the use of the labels "mandatory" and "directory" is positively misleading because they appear to attach legal consequences in the abstract to the provision in question, without having regard to the circumstances of the breach.

Is expropriation legislation exceptional?

[60]SPEC argues that, whatever the general approach may be to non-compliance with statutory procedural and formal requirements, those contained in expropriation legislation are exceptional. Strict compliance is required and a failure to comply presumptively invalidates the expropriation order.

[61]In my opinion, the authorities cited to us do not go this far. The Applications Judge relied particularly upon Costello and Dickhoff v. City of Calgary, [1983] 1 S.C.R. 14, a case in which the City had been three days late in mailing to the appellants notices of a hearing to be held respecting the City's intention to expropriate the appellants' land. McIntyre J. concluded by saying (at page 26) that many cases had established the principle that:

. . . where a power is given by a statute to a municipal government to expropriate individual interests in land, the statutory conditions for the exercise of that power must be strictly complied with.

[62]However, it seems clear that McIntyre J. was addressing situations where the non-compliance affected those who had had an interest in the expropriated land. Thus, he said (at page 21) that the courts have:

. . . generally insisted upon strict compliance with enabling legislation that authorizes municipalities to exercise extraordinary powers or pass by-laws concerning taxation, expropriation or other interference with private rights. [Emphasis added.]

Similarly, referring to a case concerning the refusal of an application for the rezoning of a parcel of land, McIntyre J. observed (at page 25) that the:

. . . judgment supports the view that the observance of notice provisions where individual rights are affected must be regarded as mandatory. [Emphasis added.]

[63]Another important statement that expropriation legislation should be strictly construed is found in Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32, at paragraph 20. However, in my view, this case provides little assistance to SPEC because Cory J. expressly states that the statute must be strictly construed in favour of those whose rights are affected because of the serious impact of expropriation on private property rights.

[64]I cannot regard these cases as establishing an exception to the Normandin, supra, approach for determining whether a legislature should be taken to intend that failure to comply with a statutory procedural requirement invalidates administrative action when those whose procedural rights were breached had no propriety rights in the land affected. In our case, of course, the objectors who did not receive notice in time had no private proprietary rights in the expropriated land. The owner of the land, the Province of British Columbia, received notice in accordance with the Act and is not a party to this challenge to the validity of the expropriation order.

[65]Counsel for SPEC submitted that other cases demonstrate that expropriation legislation must be strictly construed, even when those challenging an expropriation do not rely on private proprietary rights. Thus, for example, it was held in Thomson v. Halifax Power Co. (1914), 16 D.L.R. 424 (N.S.S.C.), that a statutory grant of power to acquire "streams and lands covered by water" should be strictly construed so as not to authorize an expropriation order that would have the effect of destroying public rights of navigation on a river. Similarly, in Ostrom and Sidney (Township) (Re) (1888), 15 O.A.R. 372 (Ont. C.A.), Osler J.A. said (at page 374):

It is essential to the validity of a by-law establishing or stopping up a road, by which the property of private persons may be compulsory taken or the rights of the public extinguished, that the provisions of the statute under which it is passed shall be strictly construed. [Emphasis added.]

[66]However, these cases are of little assistance in this appeal because counsel for SPEC did not seek to establish what public rights would be extinguished by the expropriation. Nonetheless, some objectors expressed a concern about the impact of the operation of CFMETR on boating.

[67]This issue was addressed by the Minister in his reasons for affirming the order. He noted that the expropriation would not cause further restrictions on navigation to be imposed: CFMETR had been conducting operations in Nanoose Bay for nearly 40 years before the expropriation order was made. He pointed out that a channel is always kept open for vessels and that the testing range is normally operational during daylight hours from Tuesday to Friday. The range could be crossed at other times and, sometimes, with the permission of the Coast Guard, during normal hours of operation. It would thus seem far from clear that the expropriation order would extinguish any existing public rights.

[68]Counsel for SPEC also relied on Central Ontario Coalition Concerning Hydro Transmissions Systems v. Ontario Hydro (1984), 46 O.R. (2d) 715 (Div. Ct.). However, in that case, the Court held that the notice given was so defective as to constitute a denial of natural justice. The form of the notice was not statutorily prescribed. Moreover, many of those complaining of the inadequacy of the notice in that case owned property that was likely to be affected by the expropriation. Central Ontario Coalition therefore does not assist the respondent in the present appeal.

[69]In my view, therefore, even if it is the law that any breach of an obligatory procedural provision in an expropriation statute always invalidates an expropriation order, this rule only applies when those denied their statutory rights own property affected by the order, or will lose public rights over the property. This is not our case.

Issue 2     Did the hearing officer discharge his statutory duty to report to the Minister the "nature and grounds of the objections"?

[70]It is not disputed that paragraph 10(4)(a) imposes on a hearing officer a duty to report on the nature and grounds of the objections. The question in dispute is whether the hearing officer in this case failed to discharge his duty. Only if it is concluded that the duty was breached will it be necessary to consider whether non-compliance invalidated the report and, consequently, the expropriation order itself.

[71]The essential complaint made by SPEC about the hearing officer's report is that it does not adequately describe the basis of the objections to the expropriation. By way of illustration, counsel submitted that only the nature of the objection is conveyed if an objection is described as being based on an allegation that it would be a breach by Canada of international law to permit CFMETR to be used by nuclear-powered vessels or vessels carrying nuclear weapons. To report to the Minister the grounds of the objection requires the hearing officer to detail the specific international obligations that the objectors alleged would be broken. Without more supporting detail, it was said, the Minister could not be properly informed of the basis of the objection and give it due consideration before deciding whether to affirm the expropriation order, and other members of the public would remain unaware of the seriousness of the issue.

[72]Counsel anticipated the argument that it was unrealistic to expect that, in the short time available to him, the hearing officer ought to have produced an even longer report than the 300-page report that he submitted. He argued that if the hearing officer had not focussed on assigning objectors to one of four groups, described by reference to the assumed characteristics of their members' political opinions, he could have included the information required by statute without increasing the overall length of the report. Indeed, the hearing officer's emphasis on categorizing the objectors in this way indicates that he misunderstood the nature of his task.

[73]While acknowledging that the hearing officer's approach was dictated in large part by the difficult task of having to marshal and convey in a very short time extensive oral and written submissions by a large number of people, the Applications Judge nonetheless accepted SPEC's argument. He said (at paragraph 97):

. . . I am sympathetic to the difficulties faced by the Hearing Officer, but cannot find that the requirements of the Act can be compromised by the practical difficulties experienced. The Minister selected the process, and is bound by its constraints.

[74]Thus, he observed (at paragraphs 81-82) that the notes prepared by the hearing officer for participants at the public hearings at Nanaimo contained a fundamental error about his role, which drove the format of his report. The notes state:

The role of the Hearing Officer is to identify the nature of the interests affected by the Notice of Intention to Expropriate and the grounds of objection. [Emphasis added.]

While objectors are required to state the nature of their interests (section 9), the hearing officer is required to report on the "nature and grounds of the objections". Further, assigning to individual objectors the characteristics of certain "groups", constructed by the hearing officer, tended unfairly to stereotype them and to devalue their objections.

[75]He also found that, although not a perfect solution, it was not inappropriate for the hearing officer to allocate the objections under one or more of 21 heads, which included "nuclear submarines/weapons in B.C. waters", "danger of nuclear accident", "violation of World Court ruling/international law regarding nuclear weapons". However, these headings only discharged the hearing officer's duty to report on the "nature" of the objections. In the absence of information supporting these "heads" of objection, the hearing officer could not be said also to have reported on the "grounds" of the objections.

[76]In my opinion the following considerations provide a framework within which to consider whether the hearing officer breached the duty imposed by paragraph 10(4)(b).

Duty, discretion and the standard of review

[77]First, although the hearing officer was undoubtedly under a legal duty to report on the nature and grounds of the complaints, he also had a substantial degree of implicit discretion in the manner in which he discharged it. The task of reporting on the nearly 2,700 valid objections in an informative way and in a short period of time is far from mechanical: a high degree of synthesis, summary and categorization was essential to reduce the divergent but overlapping objections to manageable proportions. Where, as in this case, a large number of objections to a proposed expropriation are served, it is inaccurate in my opinion to describe the hearing officer as simply a "human tape recorder".

[78]Second, in some circumstances it will be the function of a reviewing court to decide whether a person has performed a public legal duty imposed by statute without affording any deference to the person concerned. However, where, as here, the discharge of the duty involves the exercise of discretion as to the mode of its discharge, it is not for the reviewing court to set aside administrative action because it would have approached the performance of the duty in some other way. Thus, to the extent that the report is being challenged on the ground that the hearing officer should have gone about this task in a different manner, the court may only intervene if it is satisfied that he exercised his discretion in an unreasonable manner. Without deciding the issue, I am prepared to assume for the purposes of this appeal that simple, rather than patent unreasonableness is the appropriate standard of review of any exercise of discretion in the discharge of the hearing officer's duty to report.

"Nature and grounds of the objections"

[79]The hearing officer did not explain what he understood these words to mean. Nonetheless, one can infer from the contents of the report that his understanding of the words "nature and grounds" probably included: the number of objections; brief descriptions of the objections, such as those in the 21 heads of objection; the extent to which the objections were based on general ideological positions, rather than focussed on the particularities of this proposed expropriation; and the extent to which the various objections moved the objectors to become politically active.

[80]On the other hand, the respondent submits that the hearing officer's duty to report the grounds of an objection necessarily means that the Minister must be advised of the material or argument on which an objection is based. Information about the objectors, as opposed to the objections, is largely irrelevant.

[81]In my view, the respondent's interpretation of the phrase, "nature and grounds of the objection", is too formalistic in the context of this statutory scheme. As became evident during argument, it is exceedingly difficult in practice to maintain the kind of bright-line distinction on which the Applications Judge insisted between the "nature" of an objection and its "grounds".

[82]Nor can the Minister be presumed to be ignorant of many of the general concerns described in the report, or to lack the means to investigate them further if he so chooses. Thus, to return to the example discussed during argument, one must ask what amount of detail would lawyers have required in order to advise the Minister on the objection that the presence of nuclear weapons in Canadian waters would violate international law.

[83]Moreover, the purpose of the report is not to enable the Minister to adjudicate a dispute, but to determine whether the objection warrants further investigation and the abandonment or modification of the expropriation. Public consultation on an expropriation of this nature is more part of the political than the legal process.

[84]Section 9 of the Expropriation Act provides another indication that the words "nature and grounds" should not be understood as imposing as extensive a duty on the hearing officer as the respondent alleges. It states that the objection served on the Minister by a person who wishes to object to a proposed expropriation must indicate "the nature of the objection, the grounds on which the objection is based". It seems to me highly unlikely that Parliament intended to require objectors to the Nanoose Bay expropriation to include the kind of detailed information in support of their objections as the respondent alleges the hearing officer ought to have included in his report on the "nature and grounds of the objections". This would introduce into a public consultation a degree of formality more appropriate in pleadings.

[85]Finally, the words "nature and grounds" must be interpreted in light of the hearing officer's duty to report on them to the Minister within 30 days or 60 days when, as here, an extension of time is granted. As the Applications Judge recognized (at paragraphs 11 and 97), this tight schedule imposes very considerable constraints on the kind of report that can be written on objections as numerous as those filed in this case.

[86]On the basis of these considerations, I am persuaded that the Applications Judge erred in concluding that, when he submitted his report, the hearing officer failed to discharge his duty to "report on the nature and grounds of the objections". First, it was not unreasonable for the hearing officer to decide that understanding the different perspectives of those who had served objections would assist the Minister to assess the objections. For example, for the hearing officer to indicate that persons of differing political views were opposed to the expropriation, apparently for the same reason, could help the Minister to gauge the breadth and depth of public opposition to the expropriation.

[87]Grouping the objectors was reasonably related to an understanding of the nature of their objections, as was the tabular form in which the hearing officer chose to present information respecting the objections. He explained and amplified the tables in both the transmittal letter and addenda to the report, which also set out the methodology that he adopted to deal with the complex situation facing him.

[88]Others might have given a less quantitative account of the objections and provided, instead, a more discursive narrative. However, it is not for a reviewing court to decide how it would have approached the hearing officer's task or to determine whether there were more effective ways of conveying to the Minister the information required by the Act. It is sufficient that the approach taken by the hearing officer was not unreasonable.

[89]Second, the respondent has taken too formalistic a view of the words "nature and grounds" and have paid insufficient attention to the statutory context in which they are used. On the basis of the information about the objections provided by the hearing officer, the Minister would have been well able to understand objectors' concerns and, if necessary, to instruct his officials to investigate further any objections. Similarly, those looking to the report as the basis on which to hold the Minister politically accountable for the decision to expropriate would have found it a good starting point for further research. To interpret the Act as requiring the hearing officer, in a proceeding with so many objectors, to include in his report the information and argument supporting the various objections would be incompatible with the legislatively prescribed timetable and is not required by the nature of the process.

Conclusion

[90]In my view, the hearing officer is to be commended for preparing so quickly an impressive document which explains clearly the logistical and methodological difficulties posed by the challenge of having to conduct four weeks of hearings, to consider approximately 2,400 written objections, and to produce a report on the nature and grounds of the objections, all within a period of two months. The Applications Judge equated the hearing officer's function to that of a "human tape-recorder" (paragraph 79). In my respectful opinion, in a case as complex as this, this is a simplistic and misleading description of the hearing officer's role. It ignores the significant intellectual challenge of conveying to the Minister in a succinct and otherwise helpful manner the information that he needs to know before deciding whether to affirm, modify or abandon the expropriation.

[91]I am satisfied that the hearing officer did what Parliament required of him. It is clear from the statement of reasons for the expropriation in which the Minister responded to the principal concerns raised by objectors that, while he did not agree with the objections (except to the extent that he reduced the area expropriated as a result of British Columbia's objection), the Minister understood the points that were being made.

Issue 3     Did the hearing officer err in law by refusing to accept certain objections on the ground that they alleged bad faith?

[92]The Applications Judge held (at paragraphs 95-96) that the hearing officer erred in law by refusing to hear objectors who alleged that the Government of Canada was acting in bad faith in proposing to expropriate Nanoose Bay land, because no one was present at the hearing to respond on behalf of the Minister. He stated that the hearing officer's power to disregard objections applies only when "it appears to the hearing officer that the objection is frivolous or vexatious or is not made in good faith": subsection 10(5). Counsel for the Attorney General submitted that the Applications Judge was in error in so holding.

[93]Since subsection 10(5) leaves it to the hearing officer to decide whether an objection is "frivolous or vexatious or is not made in good faith", it is not the role of the Court to review the hearing officer's decision to exclude an objection by reference to the correctness of the ruling. The hearing officer must be given some latitude in determining whether it appears to him that an objection falls within the words of subsection 10(5). Even though it was not part of the hearing officer's responsibility to assess the merits of an objection, the power to exclude frivolous, vexatious or bad faith complaints is necessary for the orderly and efficient conduct of public hearings, especially when, as here, there were so many objectors to hear in a short time.

[94]Consequently, I am not persuaded that the hearing officer acted unreasonably in excluding objections alleging bad faith, which, in this context, would seem to imply dishonesty, or other serious misconduct, on the part of the ministers involved in the expropriation. In any event, the hearing officer's reference to these objections in his report meant that they were brought to the attention of both the Minister, and interested members of the public. As a result, even if the hearing officer erred in excluding them, the error was relatively inconsequential and could not be said to have so flawed the process as to warrant the exercise of the Court's discretion to grant the relief on this application for judicial review.

[95]Having concluded that the Applications Judge erred on the grounds on which he set aside the expropriation order, I turn now to the three other grounds on which the respondent relies in this appeal.

Issue 4     Did the Minister's notice of intention to expropriate contain a statement of the purpose for which the land was required in accordance with paragraph 5(1)(c) of the Expropriation Act?

[96]The relevant provision provides that the content of the Minister's notice of intention to expropriate shall include:

5. (1) . . .

. . .

(c) an indication of the public work or other public purpose for which the interest is required; and

[97]However, this is subject to subsection 5(3), which provides:

5. . . .

(3) Where, in the opinion of the Minister, the interest to which a notice of intention described in this section relates is required by the Crown for a purpose related to the safety or security of Canada or a state allied or associated with Canada and it would not be in the public interest further to indicate that purpose, a statement in the notice to the effect that the interest is required by the Crown for such a purpose is sufficient compliance with paragraph (1)(c) without further indication thereof. [Underlining added.]

[98]The Minister invoked this provision and the notice of intention simply recites the underlined words. However, in the initial press release and at a news conference held when the notice of intention was registered, the Minister gave further details of the purpose of the expropriation. In his reasons for affirming the order, the Minister responded to the complaint that the notice of intention contained inadequate information respecting the purpose for which the land is required by referring to the additional information given outside the notice. This information, which is also contained in the Minister's reasons for the expropriation order, provides the kind of explanations of the expropriation that I have already set out in these reasons.

[99]SPEC invites the Court to infer from the Minister's disclosures outside the notice about the purpose of the expropriation that he cannot have addressed his mind to the second criterion in subsection 5(3). This provides that the Minister can only omit from the notice of intention a full explanation of his purpose if any further indication of the purpose "would not be in the public interest". Alternatively, it was argued, the extra-notice disclosures are evidence of bad faith on the part of the Minister, who must be taken to have invoked subsection 5(3) in order to limit the scope of objections. Indeed, counsel argued, the hearing officer's refusal to permit objectors to refer to extra-notice documents as evidence of the Minister's intention unfairly restricted their right to present their objections.

[100]I cannot accept this argument. As counsel conceded, "the opinion of the Minister" triggers the Minister's ability to rely on subsection 5(3), and courts are very reluctant to consider whether a Minister's opinion is well-founded, particularly, of course, on matters relating to national defence and security: see, for example, Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, at page 472; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 85. One cannot know why the Minister was of the opinion that it would not be in the public interest to explain in the notice of intention the precise purpose for which the land was required, when he and the Department of National Defence were subsequently prepared to be more forthcoming on this subject.

[101]However, conduct of this kind, which has an appearance of inconsistency and is not contemporaneous, is not, in my opinion, a sufficient basis for concluding that the Minister acted in bad faith or failed to consider whether disclosure was not in the public interest when the notice of intention was drafted.

[102]It is also somewhat paradoxical that SPEC should seek to attack the notice of intention on the ground of the Minister's subsequent disclosure of more information about the purpose of the expropriation. Even if the reasons for the expropriation were not already widely understood, the explanations subsequently offered by the Government of Canada can only have assisted objectors in focussing their submissions. That the hearing officer exercised his discretion to exclude extra-notice evidence of the Government's purpose in expropriating the land cannot be said to have jeopardized the right of objectors to present their objections.

Issue 5     Did the hearing officer err in his interpretation of subsection 10(1) when he refused to admit objections received after June 21, 1999?

[103]The hearing officer decided that a person who filed an objection after June 21, 1999, was not entitled to be heard, since the statutory deadline for serving objections expired 30 days after the publication of the Minister's notice of intention in the Canada Gazette on May 22. Approximately 260 people were prevented from appearing at the public hearings on this ground.

[104]The hearing officer based his ruling on section 9 of the Expropriation Act, which provides:

9. Any person who objects to the intended expropriation of an interest in land to which a notice of intention relates may, within thirty days after the day the notice is given, serve on the Minister an objection in writing stating the name and address of that person and indicating the nature of the objection, the grounds on which the objection is based and the nature of the interest of that person in the matter of the intended expropriation. [Underlining added.]

[105]SPEC argues that, properly understood, this section means that, in order to trigger the Minister's duty to order a public hearing, one objection must have been served on the Minister within the 30-day period, not that only those who served notice within that time are entitled to appear at the hearings. SPEC supports this reading by noting that section 10 envisages that objections may be served outside the period:

10. (1) Forthwith after the expiration of the period of thirty days referred to in section 9, the Minister shall, if the Minister has been served with an objection under that section, order that a public hearing be conducted with respect to the objection and any other objection to the intended expropriation that has been or may be served on the Minister. [Underlining added.]

[106]The argument is that section 9 does not expressly state that those who file objections after the 30-day period may not appear at the hearings. Further, subsection 10(1), paragraphs 10(4)(a) and (b), and subsection 10(9) of the Expropriation Act speak of persons who have filed an objection, without describing it as an objection filed under section 9. Finally, the reference in subsection 10(1) to an objection that "has been or may be served" [underlining added] indicates that objections may be validly served after the expiration of the 30-day period.

[107]I am not persuaded by this argument in favour of an interpretation that counsel for SPEC concede in their memorandum is "not the most intuitive way to read . . . section [9]". First, the "intuitive" interpretation of section 9 is supported by the fact that many of the procedural provisions in the Expropriation Act are limited to objections served pursuant to section 9.

[108]For example, subparagraph 11(1)(a)(ii) states that, if an objection has been served pursuant to section 9, the Minister must consider the report of the hearing officer appointed to conduct a public hearing "with respect thereto". These latter words refer to an objection served pursuant to section 9. If SPEC's interpretation of sections 9 and 10 were correct, the hearing would not extend to objections served outside the 30-day period, thus making a nonsense of the right to be heard that SPEC contends that late objectors have.

[109]I agree with the submission of counsel for the Attorney General that, viewed as a whole, the procedural scheme created by the Expropriation Act assumes that objectors must serve their objections within the 30-day period in order to be eligible to be heard. In an attempt to give meaning to the words in subsection 10(1), "may be served", counsel for the Attorney General argued that, if objections are served within, say, 10 days of the Minister's giving notice of an intention to expropriate, the Minister may immediately order that a public hearing be conducted. Since he need not wait until the expiry of the 30-day period, subsection 10(1) provides that the hearing be conducted with respect to objections already served when he orders the hearing and any that "may be" served subsequently, but within the 30-day period.

[110]Counsel for SPEC pointed out that subsection 10(1) starts with the words, "Forthwith, after the expiration of thirty days referred to in section 9. He inferred from this that the Minister could not order a public hearing before the end of the 30-day period and that the words "may be served" must refer to objections served after the expiration of the period. In my view, the opening words of subsection 10(1) merely define the moment at which the Minister must order a public hearing. They do not say that he may not order one earlier, if he chooses.

[111]Nonetheless, even if the Minister orders a public hearing within the 30-day period, the words "may be served" seem to relate to a time after the expiry of that period, not after the ordering of public hearings but before the end of the 30-day period. However, I am satisfied that the hearing officer's interpretation of the relevant provisions provides the only workable interpretation. It provides a much better fit with the statutory scheme of procedure than that advanced by SPEC. If objectors could file objections at any time, it would be impossible for the hearing officer to know how many objectors would appear and, hence, how to allocate the time available for oral presentations, and to give appropriate notice of the public hearings.

[112]Accordingly, I conclude that the hearing officer did not err in law when he construed the Act as limiting the right to be heard to those who served objections within 30 days from the publication of the Minister's notice of intention.

Issue 6     Did the hearing officer misinterpret subsection 3(2) when he refused to accept objections sent to the Minister on the ground that, since they had been sent by regular mail, they had not been duly served?

[113]The objections of approximately 350 people were not accepted by the hearing officer because they appeared to have sent their objections to the Minister by regular mail. He rejected these objections on the basis of the following provision of the Expropriation Act:

3. . . .

(2) Where any objection or other document is to be served on the Minister, it shall be served on him by being left at, or by being sent by registered mail to, the office of the Minister, but if any such document is sent by registered mail to the office of the Minister service thereof shall be deemed not to be effected until it has been received at that office. [Underlining added.]

[114]SPEC argues that objections sent by mail were "left at . . . the office of the Minister" by Canada Post acting as agent of the objector. While the hearing officer may be thought to have taken a strict view of the law in excluding objections sent by regular mail and received by the Minister within the 30-day period, I cannot say that he thereby misinterpreted the legislation and thus erred in law.

[115]First, even if subsection 3(2) permits an objection to be left at the office of the Minister by an agent of an objector, it is not clear to me that the relationship between a person who mails a letter and Canada Post is one of agency as SPEC alleges. Second, if the words "left at . . . the office of the Minister" include, as SPEC contends, objections sent by regular or registered mail, it was unnecessary for Parliament to have expressly provided that objections could be sent by registered mail. Third, as a matter of ordinary linguistic usage, it is more natural to say that a mailed objection was sent to, rather than left at, the office of the Minister.

[116]No doubt the hearing officer could have waived this irregularity in the exercise of his discretion. However, he did not, and there is no basis for concluding that his failure to waive the irregularity in the mode of service was in any way unlawful. In any event, I would note that, although those who sent their objections late or by regular mail were not permitted to participate at the hearings, the hearing officer nonetheless read them to see if they contained anything not covered by other objections.

F. CONCLUSIONS

[117]For these reasons, I would allow the appeal of the Attorney General, set aside the order of the Applications Judge, dismiss SPEC's amended notice of application, and award the Attorney General his costs in this Court and below.

Malone J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

[118]Strayer J.A.: I concur in the results and in all of the reasoning of my learned colleague. I merely want to make clear that, while in paragraph 78 he is prepared to assume, without deciding, that the standard of review of the hearing officer's report is that of "simple unreasonableness", I am not willing to make that assumption.

[119]In my view the standard should be that of patent unreasonability. I recognize that the outcome of this decision would be the same using either test, as Evans J.A. finds the reasonableness standard to be met here, but I wish to register my concern that a court should even contemplate applying that standard to the performance of such a function. My colleague describes the function as discretionary and it is clearly implicit from the statute that in the circumstances of this case the discretion is very broad indeed. The hearing officer is simply required to report on "the nature and grounds" of the objections made. The terms "nature and grounds" are imprecise and invite subjective determination. It is also very important to note that he is required by statute to do this within 30 days (extendable to 60 days) of his appointment, without regard to the number and content of the objections made. As my colleague clearly demonstrates in subsequent paragraphs, the hearing officer is here performing no adjudicative function, nor is he assisting the minister to perform such a function. He is instead required to receive and describe objections, but not to assess them, to a minister who is performing essentially a political function in deciding whether members of the public have provided some objections which he should take into account in determining whether to proceed with the expropriation. The parties objecting in this case have no private or public rights in the property in question. The whole time frame, in which the hearing officer here was required to report within 60 days of his appointment, is a clear indication that he would have to resort to various expedients to comply with the time requirements depending on how many and how complex were the objections he received. I cannot imagine a much broader discretion being conferred, both expressly and impliedly, on an officer as to how he is to go about performing his statutory function and I am at a loss to know how or why a court might try to second-guess him in the absence of a demonstration of patent unreasonability in the manner which he has chosen to meet his obligations.