Federal Court

Administrative Law

Applicant did not provide reasonable explanation for delay in bringing application

Respondent granted disposal at sea permit to ARS authorizing sinking of decommissioned ship to turn it into artificial reef at Marine Park. Applicant asserted respondent was prohibited by law from authorizing disposal at sea of ship containing allegedly banned substances (TBTs) in its hull. TBTs in ship’s hull were common ingredients in anti-fouling paint used on ship’s hull to prevent barnacles from growing on ship. Applicant sought judicial review. Respondent asserted application was filed too late. Application dismissed. Application was not commenced within 30-day time-limit and was filed too late. Application was filed more than two months beyond time-limit. Respondent should not be prejudiced by fact that it did not raise issue of lateness until it filed written submissions on application. Contents of application were not sufficient to transform what was otherwise challenge that was clearly focused on decision to issue permit, into challenge of broader course of conduct that included minister’s refusals to establish board of review and to suspend permit and 30-day time-limit applied. Court declined to exercise jurisdiction to grant extension of time. ARS suffered substantial prejudice as result of applicant’s failure to file application within time period. Applicant did not provide reasonable explanation for delay. Applicant did not show any intention to bring application sooner. Application was dismissed on merits. In any event respondent was not prohibited by law from issuing permit and issuance of permit was not unreasonable. Anti-fouling coating of ship’s hull was reasonably determined to be in non-active state. Respondent conducted extensive and thorough analysis over several years prior to issuance of permit.

Save Halkett Bay Marine Park Society v. Canada (Minister of the Environment) (Mar. 10, 2015, F.C., Paul S. Crampton C.J., File No. T-10-15) 252 A.C.W.S. (3d) 2.

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