Fact decision interlocutory not basis for striking out portions of notice of application

Federal appeal | Administrative Law

JUDICIAL REVIEW

Fact decision interlocutory not basis for striking out portions of notice of application

Appeal from decision upholding order made by prothonotary that struck out portions of appellants’ fresh as amended notice of application. Application arose out of investigation allegedly conducted on behalf of Minister of Environment by Environmental Enforcement Directorate of Environment Canada (“EED”) as result of application made to it pursuant to s. 17 of Canadian Environmental Protection Act, 1999 (“CEPA”). Appellants asserted that there was no valid basis on which to commence and continue investigation, EED failed to discontinue investigation, or alternatively, EED failed to produce reports required by CEPA. Respondent moved to strike portions of amended notice of application on grounds that Federal Court lacked jurisdiction to review decision of EED because investigation undertaken pursuant to s. 18 of CEPA was criminal investigation, and that decision by officer of EED to undertake investigation was not “decision” within meaning of s. 18.1 of Federal Courts Act (Can.). Prothonotary and judge struck out allegations relating to improper commencement and continuation of investigation, as well as allegation that EED failed to discontinue investigation. All claims for relief were struck out except for request for writ of mandamus requiring Minister to provide appellants with copy of written report describing information obtained during investigation and stating reasons for its discontinuation. Appeal allowed. Evidentiary record before judge did not provide sufficient evidentiary basis for conclusion that decision did not cause appellants to suffer prejudicial effects. Fact that decision was interlocutory in nature was not basis in law for striking out portions of notice of application. Rather, it was ground on which court may decline to exercise its discretion to grant remedy when it determined merits of application for judicial review. Similarly, fact that there was alternate remedy was not basis in law for striking out portions of notice of application. It was ground on which court may decline to exercise its discretion to grant remedy when it determined merits of application for judicial review. Motion to strike out portions of notice of application was dismissed.
876947 Ontario Ltd. v. Canada (Attorney General) (Jun. 14, 2013, F.C.A., K. Sharlow J.A., Eleanor R. Dawson J.A., and Johanne Gauthier J.A., File No. A-524-12) 229 A.C.W.S. (3d) 677.

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