Lavoie v. Canada ( Minister of the Environment )
T-1586-98
Evans J.
20/5/99
15 pp.
Motion to strike application for judicial review on ground relief sought would have no practical effect-Application alleging Minister of Fisheries and Oceans' decision authorizing construction of hydro-electric generating facility on Kagiano River unlawful because not all relevant documents made public in accordance with Canadian Environmental Assessment Act-When present motion filed, construction of facility virtually completed-By time application for judicial review heard, power station will be fully operational, producing electricity-Principal relief requested quashing of Minister's decisions-Fisheries Act, s. 32 requiring Ministerial authorization to destroy fish by any means other than fishing-S. 35 prohibiting carrying on any work or undertaking that results in harmful alteration, disruption or destruction of fish habitat-Whether quashing of authorizations would have any practical effect-Advanced state of project alone not justifying refusal of relief-Statement in supporting affidavit that generators, turbines not installed admission facility not yet operational-When operating, water levels on either side of facility will drop causing further damage to fish habitat, especially given seasonal variations in water levels-While affidavit stating construction of facility, being virtually complete, will cause no further damage to fish, fish habitat, not addressing possible adverse impact of operation of facility-Prohibitions against carrying on work, undertaking in ss. 32, 35 including both construction of work and operation-Evidence not establishing on balance of probabilities operation of facility will not damage fish habitat-Even if facility operational when application heard, no evidence about any possible longer term environmental impacts diversion of water through facility may have on fish, fish habitat-Such issues more appropriately addressed by parties at hearing of application for judicial review-Respondents not establishing application having no prospect of success-Motion dismissed-Fisheries Act, R.S.C., 1985, c. F-14, ss. 32, 35-Canadian Environmental Assessment Act, S.C. 1992, c. 37.