A-4-86
Serge Baril and Association des travailleurs du
pétrole, section Raffinerie Gulf—Montréal-Est
(Applicants)
v.
Minister of Regional Industrial Expansion
(Respondent)
and
Ultramar Canada Inc. and Gulf Canada Ltée
(Mis -en-cause)
Court of Appeal, Pratte, Hugessen and Lacombe
JJ.—Montréal, January 23, 1986.
Judicial review — Applications to review — Foreign invest
ment review — Requirement Minister be "satisfied" under ss.
21, 22 and 23 of Investment Canada Act not decision subject to
judicial review under Federal Court Act, s. 28 — Unnecessary
for Minister to be satisfied as to every application for review
before him — Failure to act not "decision" or "order" — Act
nowhere referring to "decision or order" — Whether Minis
ter's decision to be made on judicial or quasi-judicial basis —
Criteria set by Supreme Court of Canada in Coopers and
Lybrand applied — Act not contemplating hearing before
decision — Applicant's limited right to make representations
not including right to be informed of third parties' representa
tions — Confidentiality provided for in s. 36(1) incompatible
with judicial or quasi-judicial proceedings — Applicants not
entitled to prior notice of application to review — Minister
under no obligation to apply substantive rules — Minister
implementing social and economic policy by deciding whether
investment "net benefit to Canada" — Application dismissed
— Investment Canada Act, S.C. 1985, c. 20, ss. 20, 21, 22, 23,
36(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28.
Foreign investment review — Act requiring Minister to
decide whether investment "net benefit to Canada" —
Requirement Minister be "satisfied" under ss. 21, 22 and 23
not decision subject to judicial review — Investment Canada
Act, S.C. 1985, c. 20, ss. 20, 21, 22, 23, 36(1).
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Minister of National Revenue v. Coopers and Lybrand,
[1979] 1 S.C.R. 495.
COUNSEL:
J. Robb, Q.C. and J. Ouellet for applicants.
J.-M. Aubry for Attorney General of
Canada.
J. Chamberland for mis -en-cause Ultramar
Canada Inc.
S. Lussier for mis -en-cause Gulf Canada
Ltée.
SOLICITORS:
Stikeman, Elliott, Montréal, for applicants.
Deputy Attorney General of Canada for
Attorney General of Canada.
Lavery, O'Brien, Montréal, for mis -en-cause
Ultramar Canada Inc.
Desjardins, Ducharme, Desjardins &
Bourque, Montréal, for mis -en-cause Gulf
Canada Ltée.
The following is the English version of the
easons for judgment of the Court rendered by
HUGESSEN J.: We are all of the view that the
act the Minister must be "satisfied" under sec-
ions 21, 22 and 23' of the Investment Canada Act,
;.C. 1985, c. 20, is not a decision which this Court
tas the power to review under section 28 of the
%ederal Court Act.
i, 21. (1) Subject to sections 22 and 23, the Minister shall,
rithin forty-five days after the certified date referred to in
ubsection 18(1), send a notice to the applicant that the Minis-
er, having taken into account any information, undertakings
nd representations referred to the Minister by the Agency
,ursuant to section 19 and the relevant factors set out in section
0, is satisfied that the investment is likely to be of net benefit
o Canada.
(2) Subject to sections 22 and 23, where the Minister does
of send a notice under subsection (1) within the forty-five day
period referred to in that subsection, the Minister is deemed to
e satisfied that the investment is likely to be of net benefit to
;anada and shall send a notice to that effect to the applicant.
22. (1) Where the Minister is unable to complete the con-
ideration of an investment within the forty-five day period
eferred to in subsection 21(1), the Minister shall, within that
, eriod, send a notice to that effect to the applicant and the
rlinister shall, within thirty days from the date of the sending
f the notice or within such further period as may be agreed on
y the applicant and the Minister, complete the consideration
f the investment.
(2) If, within the thirty day period referred to in subsection
1) or such further period as is agreed on pursuant to that
(Continued on next page)
First, we note that it is not even necessary for
the Minister to be satisfied in the case of every
application for review submitted to him. In the
circumstances mentioned in subsections 21(2) and
22(3), the Minister is deemed to be satisfied if he
does nothing. Simple failure to take action could
hardly be described as a "decision" or "order".
Furthermore, the Act nowhere refers to a "deci-
sion or order" by the Minister.
Second, in determining whether the Act requires
the Minister to act on a judicial or quasi-judicial
basis, we have applied the rules stated by Dickson
J., as he then was, in Minister of National Reve
nue v. Coopers and Lybrand, [1979] 1 S.C.R. 495,
at page 504. 2
(Continued from previous page)
subsection, the Minister is satisfied that the investment is likely
to be of net benefit to Canada, the Minister shall, within that
period, send a notice to that effect to the applicant.
(3) Subject to section 23, where the Minister does not send a
notice under subsection (2) within the period referred to in that
subsection, the Minister is deemed to be satisfied that the
investment is likely to be of net benefit to Canada and shall
send a notice to that effect to the applicant.
23. (1) Where the Minister is not satisfied, within the
forty-five day period referred to in subsection 21(1) or within
any extension period referred to in subsection 22(1), that an
investment is likely to be of net benefit to Canada, the Minister
shall send a notice to that effect to the applicant, advising the
applicant of his right to make representations and submit
undertakings within thirty days from the date of the notice or
within such further period as may be agreed on by the appli
cant and the Minister.
(2) Where, after receipt of the notice referred to in subsec
tion (1), the applicant advises the Minister that he wishes to
make representations or submit undertakings, the Minister
shall afford the applicant a reasonable opportunity, within the
period referred to in subsection (1) for so doing, to make
representations in person or by an agent and to give undertak
ings to Her Majesty in right of Canada, as the applicant sees fit.
(3) On the expiration of the period referred to in subsection
(1) for making representations and submitting undertakings,
the Minister shall, in the light of any such representations and
undertakings and having regard to the matters to be taken into
account under subsection 21(1), forthwith send a notice to the
applicant
(a) that the Minister is satisfied that the investment is likely
to be of net benefit to Canada; or
(b) confirming that the Minister is not satisfied that the
investment is likely to be of net benefit to Canada.
2 It is possible, I think, to formulate several criteria for
determining whether a decision or order is one required by law
to be made on a judicial or quasi-judicial basis. The list is not
intended to be exhaustive.
(Continued on next page)
1. The Act does not contemplate the holding of
a hearing before the Minister acts. It is true that,
in the circumstances mentioned in subsection
23(1), the applicant has a limited right to make
representations to the Minister; however, this right
does not include a right to take cognizance of the
information and representations which others may
have submitted to the Minister. The confidential
ity provided for in subsection 36(1) 3 is in any case
wholly incompatible with any judicial or quasi-
judicial proceeding.
2. Though the Minister's "decision" may direct
ly or indirectly affect the rights and obligations of
several persons, we note that some of those persons
(such as the applicants in the case at bar) are not
entitled to any prior notice of the application: the
latter may therefore be received and approved by
the Minister without their being aware of it.
3. No adversary process is involved.
4. Even if the Minister must take into account
the "factors" mentioned in subsection 20, 4 he is
under no obligation to apply substantive rules: on
the contrary, he implements social and economic
policy by deciding whether the proposed invest
ment "is likely to be of net benefit to Canada".
(Continued from previous page)
(1) Is there anything in the language in which the function is
conferred or in the general context in which it is exercised
which suggests that a hearing is contemplated before a decision
is reached?
(2) Does the decision or order directly or indirectly affect the
rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many
individual cases rather than, for example, the obligation to
implement social and economic policy in a broad sense?
3 36. (1) Subject to subsections (3) and (4), all information
obtained with respect to a Canadian, a non-Canadian or a
business by the Minister or an officer or employee of Her
Majesty in the course of the administration or enforcement of
this Act is privileged and no one shall knowingly communicate
or allow to be communicated any such information or allow
anyone to inspect or to have access to any such information.
4 20. For the purposes of section 21, the factors to be taken
into account, where relevant, are
(a) the effect of the investment on the level and nature of
economic activity in Canada, including, without limiting the
generality of the foregoing, the effect on employment, on
(Continued on next page)
We conclude therefore that the Minister's being
satisfied is not a "decision ... required by law to
be made on a judicial or quasi-judicial basis"
within the meaning of section 28 of the Federal
Court Act.
The application made pursuant to section 28
will accordingly be dismissed on the ground that it
is not within the Court's jurisdiction.
(Continued from previous page)
resource processing, on the utilization of parts, components
and services produced in Canada and on exports from
Canada;
(b) the degree and significance of participation by Canadians
in the Canadian business or new Canadian business and in
any industry or industries in Canada of which the Canadian
business or new Canadian business forms or would form a
part;
(c) the effect of the investment on productivity, industrial
efficiency, technological development, product innovation
and product variety in Canada;
(d) the effect of the investment on competition within any
industry or industries in Canada;
(e) the compatibility of the investment with national indus
trial, economic and cultural policies, taking into consider
ation industrial, economic and cultural policy objectives
enunciated by the government or legislature of any province
and likely to be significantly affected by the investment; and
(J) the contribution of the investment to Canada's ability to
compete in world markets.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.