PRACTICE |
Pleadings |
Hamilton-Wentworth (Regional Municipality) v. Canada (Minister of the Environment)
T-1400-99, T-1993-99
Dawson J.
6/4/00
30 pp.
Appeal by applicant, cross-appeal by respondents from prothonotary's order dated December 10, 1999 in Court file number T-1400-99 referred to as "original proceeding"--Order striking out portions of notice of application, significantly reducing scope of judicial review--Motion by applicant seeking leave to amend application filed in original proceeding, extension of time to bring application--Motion by respondents striking out significant portions of notice of application in Court file number T-1993-99 referred to as "second proceeding"--Applicant wishing to complete Alexander/Red Hill Creek Expressway--Minister of Environment referring project to Review Panel constituted under Canadian Environmental Assessment Act for purpose of conducting public environmental hearing assessment--Applicant commenced two applications for judicial review challenging number of decisions of federal authorities related to review Expressway Project--Informed by Department of Fisheries and Oceans (DFO) Project could have harmful impact on fish, fish habitat in violation of Fisheries Act, s. 35(1)--Application for authorization to go ahead with project would trigger CEAA, which in turn would cause DFO, as responsible authority, to conduct environmental screening of Project--Effect of prothonotary's order to limit scope of original proceeding to review of decision of Minister of Environment appointing members of Review Panel, fixing Panel's terms of reference--Appropriate standard of review to be applied when reviewing prothonotary's order set out in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)--Court exercising own discretion de novo--In exercising discretion, Court concluding applicant's position not bereft of possibility of success--Not exceptional case so as to warrant striking portions of notice of application--Appeal from order striking out portions of original application allowed, cross-appeal dismissed--Discretion referred to herein one to be exercised by judge on hearing of application on merits--Leave to amend notice of application in original proceeding, necessary extension of time granted--Prior to issuance of Review Panel's terms of reference, no demonstration of intent to seek judicial review with respect to requirement of Fisheries Act approval, application of CEAA--Motion to strike portions of notice of application filed in second proceeding dismissed--Not such exceptional case as to justify striking allegations from notice of application--Neither plain nor obvious allegations will fail, or bereft of possibility of success--Entire issue of costs should be left, reserved to discretion of judge hearing applications on merits--Canadian Environmental Assessment Act, S.C. 1992, c. 37--Fisheries Act, R.S.C., 1985, c. F-14, s. 35(1).