British Columbia Hydro and Power Authority v. Canada ( Attorney General )
T-1171-97
McGillis J.
3/5/98
35 pp.
Application for judicial review of Minimum Flow Order issued by Minister of Fisheries and Oceans under Fisheries Act, s. 22(3) specifying water flow release for Daisy Lake Dam, for safety of fish and ova in Cheakamus River in British Columbia-Given proximity to Vancouver, Dam and its power plant perform very important role within B.C. Hydro integrated electrical system-Report had concluded B.C. Hydro's water diversions significantly exceeded licensed flow for majority of time from 1960 to 1996-In 1997, B.C. Hydro, Department, B.C. Ministry and other regulatory agencies met to determine acceptable and workable flow-Shortly after meeting, representatives from Department and B.C. Ministry determined that B.C. Hydro's current and proposed flows, as well as its delays, unacceptable as would have adverse impact on salmon in River-They therefore concluded that appropriate to seek order from Minister of Fisheries under Fisheries Act, to ensure water flow necessary for safety of fish and of ova deposited on spawning ground maintained in Cheakamus River-Minimum Flow Order considerably reducing B.C. Hydro's ability to generate power during winter months, where demand for electricity highest and causing costs of approximately $2,000,000 per year-Issues whether Minister breached duty of procedural fairness owed to B.C. Hydro; whether Minister exceeded jurisdiction and erred in law by basing decision on irrelevant considerations; whether Minister erred in law by misinterpreting extent of power accorded to him under Fisheries Act, s. 22(3); whether Minister erred in law by failing to adhere to provisions of Canadian Environmental Assessment Act-Application allowed-Decision made by Minister under Fisheries Act, s. 22(3) discretionary administrative decision made in response to specific factual situation subject to judicial review on grounds decision-maker acted in bad faith, erred in law, or acted on basis of irrelevant considerations-Minister owed minimal duty of fairness to B.C. Hydro in making discretionary decision under Fisheries Act, s. 22(3)-In 1997 meeting, participants agreed to course of action which accorded B.C. Hydro additional period of time to analyse implications of recent report-Participants further agreed to review all reports, and to provide their comments to facilitator-Within three days of that meeting, Department's officials, who had agreed to course of action with B.C. Hydro, unilaterally determined that B.C. Hydro's recent proposal and its "delay" were "unacceptable"-Despite course of action agreed to at meeting, they chose not to notify B.C. Hydro of their change in plans, and proceeded to take necessary steps to secure issuance of ministerial order under Fisheries Act, s. 22(3)-At no time did Minister's delegate notify B.C. Hydro he was considering issuance of order under Fisheries Act, s. 22(3), nor did he provide B.C. Hydro with opportunity to make representations to him-Minister's delegate obliged, as minimal requirement of fairness, to provide B.C. Hydro with notice and with opportunity to make written representations, to him, prior to issuance of order under Fisheries Act, s. 22(3)-Given particular circumstances of this case, Minister's delegate breached minimal duty of fairness owed to B.C. Hydro-Fisheries Act, R.S.C., 1985, c. F-14, s. 22(3).