A-80-77
S.E.A.P. (Save the Environment from Atomic Pol
lution) (Applicant)
v.
Atomic Energy Control Board and Eldorado
Nuclear Limited (Respondents)
Court of Appeal, Urie J., MacKay and Kerr
D.JJ.—Toronto, March 15 and 18, 1977.
Judicial review — Application to set aside decision of
Atomic Energy Control Board licensing Eldorado Nuclear
Limited to use Port Granby Residue Area for storing radioac
tive substances Whether Board's decision administrative or
judicial in nature Function of Board — Application dis
missed, as Board's decision is strictly administrative —
Atomic Energy Control Act, R.S.C. 1970, c. A-19, ss. 3(1), 7, 8
and 9 Federal Court Act, s. 28.
JUDICIAL review.
COUNSEL:
D. Estrin for applicant.
W. I. C. Binnie and G. R. Strathy for
respondent Atomic Energy Control Board.
P. Y. Atkinson for respondent Eldorado
Nuclear Limited.
SOLICITORS:
D. Estrin, Toronto, for applicant.
McTaggart, Potts, Stone & Herridge,
Toronto, for respondent Atomic Energy Con
trol Board.
Aird, Zimmerman & Berlis, Toronto, for
respondent Eldorado Nuclear Limited.
The following are the reasons for judgment of
the Court delivered orally in English by
KERR D.J.: S.E.A.P. filed an originating notice,
dated February 9, 1977, of an application under
section 28 of the Federal Court Act to review and
set aside a decision, dated January 31, 1977, of the
respondent Atomic Energy Control Board (which I
shall refer to as "the Board"), which authorized or
granted a licence to the respondent Eldorado
Nuclear Limited (which I shall refer to as
"Eldorado") to continue to use the Port Granby
Residue Area for purposes of storage of radioac
tive prescribed substances, subject to certain terms
and conditions specified in the licence. The licence
was to expire on July 31, 1977, unless amended.
Eldorado filed a motion to quash that section 28
application of S.E.A.P. Counsel for S.E.A.P. asked
that the hearing of the motion to quash be
adjourned pending the hearing of the section 28
application on its merits. We had grave doubt as to
this Court's jurisdiction in respect of that section
28 application, and we decided to proceed to hear
Eldorado's motion to quash.
We heard the submissions of counsel for
Eldorado and counsel for the Board on Tuesday,
March 15, 1977, and then adjourned the hearing
until this morning to hear counsel for S.E.A.P. in
reply. On the resumption of the hearing this morn
ing, counsel for S.E.A.P. chose not to offer argu
ment or submissions in reply on the question of the
Court's jurisdiction in respect of the section 28
application. He repeated his submission that the
motion to quash should not be disposed of until
after the section 28 application has been dealt with
on its merits.
In support of Eldorado's motion, its counsel and
counsel for the Board submitted, principally,
(a) that the Board's decision is one "of an
administrative nature not required by law to be
made on a judicial or quasi-judicial basis;"
(b) that the Board is an "agent of the Crown"
and is not a "federal board, commission or other
tribunal" within the meaning of those words as
used in section 28 of the Federal Court Act,
there being no mention of the "Crown" in that
section; and
(c) that S.E.A.P. has no status or entitlement to
bring its section 28 application.
It is clear that, if the Board's said decision is a
"decision or order of an administrative nature not
required by law to be made on a judicial or
quasi-judicial basis" within the meaning of the
said section 28, this Court has no jurisdiction to
grant the relief sought by S.E.A.P., and the
application to quash should be granted.
In order to determine whether the Board's deci
sion is one that was not required by law to be
made on a judicial or quasi-judicial basis it is
necessary to look particularly, but not necessarily
exclusively, to the Atomic Energy Control Act',
which established the Board, to see what the
Board's functions are and how they are to be
exercised.
The preamble in that Act reads as follows:
WHEREAS it is essential in the national interest to make
provision for the control and supervision of the development,
application and use of atomic energy, and to enable Canada to
participate effectively in measures of international control of
atomic energy which may hereafter be agreed upon;....
Certain other provisions of that Act are also
relevant, including the following:
Section 3(1) provides that the Board's powers
are exercisable by it only as an agent of Her
Majesty.
Section 7 provides that the Board shall comply
with any general or special direction given by
the Minister with reference to the carrying out
of its duties.
Section 8 provides that the Board may make
rules for regulating its proceedings and the
performance of its duties; and, by paragraph (d)
of that section, it may, with the approval of the
Minister, disseminate or provide for the dissemi
nation of information relating to atomic energy
to such extent and in such manner as the Board
may deem to be in the public interest.
Section 9 gives the Board power to make, with
the approval of the Governor in Council, certain
regulations; and pursuant to that power the
Board made the Atomic Energy Control Regu
lations. Sections 7 and 9 of those Regulations
provide for issuing licences upon receipt of a
written application from the person requiring a
licence, which application shall set forth infor
mation required by the Board, including infor
mation necessary to evaluate the application;
and a licence issued by the Board may contain
' R.S.C. 1970, c. A-19.
such conditions as the Board deems necessary in
the interests of health, safety and security.
Section 27 of the Regulations provides proce
dures related to revocation, suspension or
amendment of a licence, including notice in
writing to the holder and the giving of informa
tion in writing of the reasons for the revocation,
etc., to the holder and the giving of a reasonable
opportunity to be heard by the Board after
receiving the said information.
There do not appear to be similar or any provi
sions in the Act or Regulations requiring the
Board, on an application for a licence, to sit in
public, hold a hearing, give notice of the applica
tion, or follow or adopt procedures analogous to
the judicial.
We have concluded that the decision of the
Board that S.E.A.P. seeks to have set aside is a
decision of an administrative nature not required
by law to be made on a judicial or quasi-judicial
basis, and consequently that this Court has no
jurisdiction to grant the relief sought by S.E.A.P.
in its section 28 application. Therefore, the
application of Eldorado to quash the section 28
application should be granted.
Having regard to our said conclusion it is not
necessary for the disposition of the matter to make
a definitive determination of Eldorado's contention
that, because the Board is an agent of the Crown
and the Crown is not mentioned in section 28 of
the Federal Court Act, the Board is not a "board,
commission or other tribunal" within the meaning
of that section. However, it appears to us that the
contention is without merit.
It is also not clear to us, on what has been
presented, that S.E.A.P. has an entitlement to
bring its section 28 application, but it is not neces
sary, having regard to our disposition of the
matter, to explore further the question of
entitlement.
The section 28 application will be quashed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.