T-2068-86
Crestpark Realty (Applicant)
v.
Director General, Aids and Waterways, on behalf
of the Minister of Transport (Respondent)
INDEXED AS: CRESTPARK REALTY V. CANADA (DIRECTOR GEN
ERAL, AIDS AND WATERWAYS)
Trial Division, Collier J.—Halifax, October 16
and 17, 1986.
Judicial review — Prerogative writs — Certiorari —
Application to quash decision approving building of bridge and
causeway — Legislation silent as to opposition procedures —
Minister soliciting written objections — Applicant's objections
rejected one day before formal approval — Applicant denied
opportunity to respond in writing to respondent's reply reject
ing objections — Duty of fairness breached — Application
allowed — Navigable Waters Protection Act, R.S.C. 1970, c.
N-19, ss. 5(1)(a), 8(1),(3) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 18.
This is a motion for certiorari to quash the respondent's
decision approving an application to build a bridge and cause
way in Halifax County, Nova Scotia. The Navigable Waters
Protection Act, under which approval was given, is silent as to
any procedure for soliciting objections to a proposed work
which might affect navigable waters. The Minister in this case
initiated a procedure by directing that the notice of application
required to be published in the Canada Gazette pursuant to
section 8 of the Act, contain a statement as to where written
objections might be sent.
The applicant wrote to the respondent outlining his objec
tions and requesting a hearing. The respondent replied some
two months later indicating that the objections would not be
given effect to. That letter was dated one day before the
decision granting formal approval was made. The applicant
protested. The Director General offered to arrange for appli
cant to meet with a departmental official for a discussion of the
issues but there was no question of the decision being altered.
Held, the application should be allowed.
The respondent's submission, that all that was necessary was
to consider and investigate the objections, could not be
accepted.
An administrative tribunal, such as the Minister, through his
Director General, can provide for its own procedure: Hoffman-
La Roche Ltd. v. Delmar Chemical Ltd. That case must,
however, be considered with care since it was rendered before
the Supreme Court decision in Nicholson, now the cornerstone
of modern Canadian administrative law. The Nicholson deci
sion stands for the proposition that complaints made to an
investigating body must be considered and the complainant
given the opportunity to meet the case against him. The
requirement of fairness may, in some cases, be satisfied by
correspondence.
The ultimate question to be answered was stated by Dickson
J. (as he then was) in Martineau v. Matsqui Institution
Disciplinary Board (No. 2): "Did the tribunal on the facts of
the particular case act fairly toward the person claiming to be
aggrieved?" That question in the present case must be
answered in the negative. The respondent invited and received
objections. Although an oral hearing may not have been neces
sary, an opportunity to respond in writing to the Director
General's reply rejecting the objections should have been given.
Failure to give an opportunity to respond amounted to a breach
of fairness.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Martineau v. Matsqui Institution Disciplinary Board
(No. 2), [1980] 1 S.C.R. 602; 30 N.R. 119.
REFERRED TO:
Hoffman-La Roche Ltd. v. Delmar Chemical Ltd.,
[1965] S.C.R. 575; Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [1979] 1
S.C.R. 311; Selvarajan y Race Relations Board (1976), 1
All ER 13 (C.A.).
COUNSEL:
Jean Beeler for applicant.
M. Donovan for respondent.
SOLICITORS:
Weldon, Beeler & Mont, Dartmouth, Nova
Scotia, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order deliv
ered orally in English by
COLLIER J.: This is a motion for judicial review,
by way of certiorari, to quash a decision of the
respondent, made January 3, 1986. That decision
approved the application of one Ronald Morash to
build a bridge and causeway at a certain location
in St. Margaret's Bay, Halifax County, Nova
Scotia. The approval was given pursuant to para
graph 5(1)(a) of the Navigable Waters Protection
Act, R.S.C. 1970, c. N-19.
Morash commenced construction of his pro
posed causeway in September 1985. Someone
complained of his doing this without the required
statutory approval. He then formally applied, on
September 16, 1985, for the necessary approval.
The appropriate departmental officers made some
investigations. On September 18, 1985, they
recommended to their superiors that the applica
tion be approved.
On September 25, 1985, Morash was notified he
was required to deposit the plans for the structure
in the local registry office, and to publish a notice
in the Canada Gazette, and in the legal section of
two newspapers.
Those requirements are called for by subsections
8(1) and 8(3) of the statute. The legislation is
silent as to any method of inviting objections from
interested parties, or a method of handling any
objections.
The Minister, in this case, through his officials,
apparently directed that the notice of application,
to be published, contain the following:
Written objections based on the effect of the work on marine
navigation may be directed to: Director General, Aids and
Waterways, Canadian Coast Guard, Department of Transport,
Ottawa, Ontario.
The notice was published in local newspapers in
the first week of October 1985.
The applicant is the owner of property in St.
Margaret's Bay.
On October 25, 1985, through its solicitor, the
applicant wrote the Director General outlining
specific objections to the proposed bridge and
causeway. Some of the objections related to mat
ters of marine navigation. Others related to envi
ronmental and ecological matters. Copies of the
letter were sent to various government depart
ments, including Environment and Fisheries. A
copy was sent to Tom Bradley. He was a Navi
gable Waters Protection Act Officer who did the
site investigations of the proposed structure.
In the letter of October 25, the applicant
requested an extension of time.
... to these proceedings, so that all concerned persons may be
given the opportunity to submit a notice of Objection and for a
fair hearing.
The letter concluded as follows:
1 also request notice cf the time, date, place and manner of
proceeding of the hearing of this matter.
Four other letters were received, expressing
opposition to the causeway.
The applicant's objections, and requests, were
not even given the courtesy of an acknowledge
ment receipt. There was utter, cold silence until
the Director General wrote the applicant's solici
tors on January 2, 1986. That letter referred to the
solicitor's letter of October 25, 1985. The Director
General indicated the objections would not be
given effect to, for withholding approval under the
statute.
The letter was dated one day before the decision
granting formal approval was made. The letter was
not received by the applicant's solicitors until
January 9, 1986.
The solicitors wrote, in reply, on January 28,
1986. They protested the ruling, particularly
because no hearing had been held.
This time there was a prompt reply from the
Director General: February 6, 1986. I set out the
letter in full:
Dear Sir: Causeway construction—Mosher's Back Cove, Burnt
Island, N.S.
I refer to your correspondence of January 28, 1986 regarding
the above noted matter. Although the Navigable Waters Pro
tection Act does not provide for "hearings" to be held in respect
to works proposed for construction in navigable waters, Coast
Guard officials of our Dartmouth Regional office are available
to discuss those issues which have a bearing on the public right
of navigation. In this respect we have requested Mr. Tom
Bradley of our Dartmouth office to contact you directly to
arrange a date and time that would be acceptable to you both.
Yours sincerely.
The evidence discloses that Mr. Bradley
endeavoured to arrange a meeting with the appli
cant's solicitor. It did not take place. According to
the evidence submitted on behalf of the applicant,
Mr. Bradley indicated he was prepared to discuss
the matter, but the decision which had been made
would not be altered.
There was no evidence before me as to the fate
of the other four opponents of the causeway, or
how their protests were handled.
The material filed on behalf of the respondent
discloses Mr. Bradley made his first official site
inspection on September 17, 1985. He made
another inspection on November 26, 1985. Mr.
Bradley does not say why this second inspection
was made. He does not say it was because of the
applicant's objections, or because of the opposition
which had been expressed by other objectors.
This is clear. The applicant knew nothing of
these matters. After its letter of October 25, 1985,
it knew nothing until the receipt of the Director
General's letter of January 2, 1986, and the formal
approval dated the next day.
The steps taken by the Director General's
Department were outlined in Mr. Bradley's affida
vit, of October 10, 1986, a week ago. That was the
first knowledge by the applicant.
That concludes my summary of the essential
facts.
The applicant contends the respondent was, in
the circumstances here, in breach of a duty of
fairness: that some kind of hearing, or opportunity,
ought to have been given in respect of the objec
tions made by the applicant.
The respondent replies that there is no statutory
requirement for a so-called hearing. Even if a
common law duty of procedural fairness arose, it is
said, the requirements were met; the objections
were considered, and investigated; in the circum
stances that was all that was necessary.
I do not accept the respondent's contentions.
It is quite true the statute is silent as to any
procedure for soliciting objections to a proposed
work which might affect navigable waters. Here
the Minister, set up the start of a procedure by
requiring Morash, in this case, to include a state
ment in his published notice, that written objec
tions could be sent. An administrative tribunal,
such as the Minister, through the Director General
here, can provide for its own procedure. See: Hoff-
man-La Roche Ltd. v. Delmar Chemical Ltd.,
[1965] S.C.R. 575. In that case, it was held that
the procedures set up by the Commissioner of
Patents were sufficient compliance with "natural
justice".
I point out, however, the Hoffman-La Roche
case must be treated with care. It was long before
the seminal Canadian case of Nicholson v. Haldi-
mand-Norfolk Regional Board of Commissioners
of Police, [1979] 1 S.C.R. 311, now the corner
stone of modern Canadian administrative law, and
judicial review.
Quite apart from statute, a duty of fairness may
arise, in the circumstances of a particular case, at
common law. The duty of fairness may, again in a
particular case, require a hearing, in the sense of
an oral hearing.
Essentially, the complaints made to an investi
gating or deciding body, must be considered. The
complainant must be given an opportunity to meet
the so-called case against him—the right to reply.
The whole process may, in a particular case, meet
the requirement of fairness by being done by cor
respondence or writing. See the Nicholson case,
and Selvarajan v Race Relations Board (1976), 1
All ER 13 (C.A.), referred to in the Nicholson
decision.
The crux of the matter is, in my view, set out by
Mr. Justice Dickson [as he then was] in Mar-
tineau v. Matsqui Institution Disciplinary Board
(No. 2), [1980] 1 S.C.R. 602, at pages 628-629;
30 N.R. 119, at page 149:
... A purely ministerial decision, on broad grounds of public
policy, will typically afford the individual no procedural protec
tion, and any attack upon such a decision will have to be
founded upon abuse of discretion. Similarly, public bodies
exercising legislative functions may not be amenable to judicial
supervision. On the other hand, a function that approaches the
judicial end of the spectrum will entail substantial procedural
safeguards. Between the judicial decisions and those which are
discretionary and policy-oriented will be found a myriad deci-
sion-making processes with a flexible gradation of procedural
fairness through the administrative spectrum. That is what
emerges from the decision of this Court in Nicholson. In these
cases, an applicant may obtain certiorari to enforce a breach of
the duty of procedural fairness.
And again at pages 630-631 S.C.R.; 150-151
N.R.:
... It is wrong, in my view, to regard natural justice and
fairness as distinct and separate standards and to seek to define
the procedural content of each. In Nicholson, the Chief Justice
spoke of a "... notion of fairness involving something less than
the procedural protection of the traditional natural justice".
Fairness involves compliance with only some of the principles of
natural justice. Professor de Smith (3rd ed. 1973, p. 208)
expressed lucidly the concept of a duty to act fairly:
In general, it means a duty to observe the rudiments of
natural justice for a limited purpose in the exercise of
functions that are not analytically judicial but administra
tive.
The content of the principles of natural justice and fairness
in application to the individual cases will vary according to the
circumstances of each case, as recognized by Tucker L. J., in
Russell v. Duke of Norfolk ([1949] 1 All E.R. 109), at p. 118.
8. In the final analysis, the simple question to be answered is
this: Did the tribunal on the facts of the particular case act
fairly toward the person claiming to be aggrieved? It seems to
me that this is the underlying question which the courts have
sought to answer in all the cases dealing with natural justice
and with fairness.
I put that simple question in this case: Did the
Director General, on the facts of this particular
case, act fairly towards the applicant-objector?
My answer is "No".
The Director General invited objections. He
received one from the applicant. I assume that the
objections were considered. But no replies were
given, until far too late, rejecting the objections.
No opportunity was given to the applicant to
respond to the rejections of its objections, or even
of the grounds of rejection.
Failure to give that opportunity was, to my
mind, a breach of fairness, sufficiently tainting the
approval decision, to warrant quashing it.
I do not say the applicant should have had an
oral hearing. An oral hearing may not have been
necessary in this case. But at the least, an opportu
nity to respond in writing to the Director General's
views on the objections, should have been given.
The Director General appeared quite willing,
after the event, to have a departmental officer
discuss the matter with the applicant. That was a
method open to the Director General before his
decision was made, as well as other methods of
complying with the fairness rule.
The decision of January 2, 1986 is quashed.
The Trial Division of this Court has no power to
refer the whole matter back to the Director Gener
al to reconsider his decision, in the light of these
reasons. The only power, under section 18 [of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10], in the circumstances of this case is to quash.
Finally, I wish to make this clear. I am not
suggesting that what I have said in this particular
case necessarily applies in respect of all applica
tions for approvals made under section 8 of the
Navigable Waters Protection Act.
The applicant is entitled to the costs of this
motion.
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.