ADMINISTRATIVE LAW REPORTS Fifth Series/Cinqui`Eme S´Erie Recueil De Jurisprudence En Droit Administratif

ADMINISTRATIVE LAW REPORTS Fifth Series/Cinqui`eme s´erie Recueil de jurisprudence en droit administratif

VOLUME 53 (Cited 53 Admin. L.R. (5th))

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[Indexed as: Celgene Inc. v. Canada (Minister of Health)] The Minister of Health, Appellant and Celgene Inc., Respondent and Canadian Generic Pharmaceutical Association, Intervener Federal Court of Appeal Docket: A-75-12 2013 FCA 43 Johanne Gauthier, K. Sharlow, M. Nadon JJ.A. Heard: November 27, 2012 Judgment: February 15, 2013 Commercial law –––– Trade and commerce — Consumer protection — Public health legislation — Pure food and drugs — Regulation of new drugs –––– Thalidomide was previously approved by Health Canada in 1960 and 1961, but approval was withdrawn for safety reasons in 1962 — In 2009, corporate respondent C Inc. sought approval for drug Thalomid with medicinal ingredient thalidomide — Regulations under Food and Drugs Act required that manufacturers submit evidence of efficacy in seeking notice of compliance (“NOC”) — NOC was issued, but appellant Minister of Health refused to register C Inc.’s drug on register of innovative drugs, on basis that medicinal ingredient thalidomide was not innovative — Minister advised C Inc. that Thalomid would not be eligible for data protection because thalidomide had been previously approved by minister — C Inc. brought successful application for judicial review — Application judge held that prior approvals in this case should not stand in way of data protection for later approved product and that drug was innovative drug and eligible for listing on register — Minister appealed — Ap- peal allowed — Parliament had power to extend data protection to other “new drugs” as defined in regulations, which also required filing of similarly substantial confidential data — It was clear from definition adopted that legislator chose not to do so — Despite exceptional history of thalidomide, there was no cogent legal basis to create exception. Intellectual property –––– Patents — Patent legislation — International treaties and conventions –––– Thalidomide was previously approved by Health Canada in 1960 and 1961, but approval was withdrawn for safety reasons in 1962 — In 2009, corporate respondent C Inc. sought approval for drug Thalomid with medicinal ingredient thalidomide — Regulations under Food and Drugs Act required that manufacturers submit evidence of efficacy in seeking notice of compliance (“NOC”) — NOC was issued, but appellant Minister of Health refused to register C Inc.’s drug on register of innovative drugs, on basis that medicinal ingredient thalidomide was not innovative — Minister advised C Inc. that Thalomid would not be eligible for data protection because thalidomide had been previously approved by minister — C Inc. brought successful applica- 178 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

tion for judicial review — Application judge held that prior approvals in this case should not stand in way of data protection for later approved product and that drug was innovative drug and eligible for listing on register — Application judge noted that data protection provisions (“DPP”) in regulations were intended to implement international treaty obligations and to encourage and reward innovation by protecting data innovator must generate to obtain approval for drug — It was application judge’s finding that interpreting DPP as proposed by C Inc. was in keeping with its purpose — Minister appealed — Appeal allowed — Sig- natories of relevant treaties agreed to grant minimum protections only in context of approvals for marketing of pharmaceutical and agricultural products that utilized “new chemical entities” — Words “medicinal ingredient” as used in regulations were equivalent of “chemical entity” — Relevant treaties were in line with construction proposed by minister and also read harmoniously with the relevant provisions of DPP, which provided that period of exclusivity starts on “the day on which the first NOC was issued to the innovator” — It was quite usual for words of treaty to be harmonized with language used in one’s own regulatory scheme. Administrative law –––– Standard of review — Correctness –––– Appellate court’s role was to determine whether judge hearing the application for judicial review of decision by Minister of Health properly identified and applied standard of review. In 1960 and 1961, two drugs that included thalidomide were approved for sale in Canada by the appellant Minister of Health (“minister”). After it was discovered that thalidomide potentially produced fetal malformation, it was permanently withdrawn from the Canadian market in 1962. Although manufacturers were already required to file a new drug submission (“NDS”) prior to marketing their drugs, the approval of thalidomide prompted a complete revision of the regulations then in force under the Food and Drugs Act (“regulations”), including the requirement that manufacturers submit evidence of efficacy in seeking a notice of compliance (“NOC”). Despite its history, thalidomide was eventually found to be effective in the treatment of leprosy as well as a form of cancer. The corporate respondent, C Inc., was exclusively devoted to the commercialization of Thalomid, which was a “new drug” within the meaning of the regulations, thus the minister’s approval had to be obtained before it could be sold in Canada. In order to obtain an NOC, C Inc. filed what it described as “highly sensitive preparatory and confidential information.” C Inc. requested that Thalomid be listed on “the Register of ‘Innovative Drugs’” (“register”). An NOC for Thalomid was issued, but the minister advised C Inc. that Thalomid would not be eligible for data protection because its medicinal ingredient, Celgene Inc. v. Canada (Minister of Health) 179 thalidomide, had been previously approved by the minister in at least two drugs. The minister confirmed the decision not to list C Inc.’s product on register. C Inc. brought an application for judicial review of the minister’s final decision. The application was granted. The application judge applied the correctness standard to the minister’s interpretation of the definition of “innovative drug” in the regulations. He noted particularly that the data protection provisions (“DPP”) in the regulations were intended to implement international treaty obligations. He held that safety and effectiveness were the main considerations with respect to a drug approved for public use and that it would have been entirely perverse to find that a drug, the approval of which had been withdrawn for safety reasons, should nevertheless be considered as having been previously approved. The minister appealed the result. Held: The appeal was allowed. Per J. Gauthier J.A (K. Sharlow J.A. concurring) The main issue was whether Thalomid contained a medicinal ingredient not previously approved, and as such fell within the definition of an “innovative drug” found in the regulations and could therefore benefit from the DPP, particularly market exclusivity. The protection accorded to the confidential data was limited to certain innovations only. The signatories of the relevant treaties agreed to grant the minimum protections only in the context of approvals for the marketing of pharmaceutical and agricultural products that utilized “new chemical entities.” The words “medicinal ingredient” as used in the regulations were the equivalent of “chemical entity.” The parties agreed that, read in the context of a provision dealing with approval of a pharmaceutical product for marketing in the territory of a signatory state, “new” did not mean “unknown,” “made,” “invented” or “discovered recently.” It could reasonably be understood to mean submitted for approval for the first time to the appropriate authority in the territory of a signatory state. The relevant treaties were in line with the construction proposed by the minister and also read harmoniously with the relevant provisions of the DPP, which provided that the period of exclusivity starts on “the day on which the first NOC was issued to the innovator”. Parliament had the power to extend the protection granted under the DPP to other “new drugs” as defined in the regulations, which also required the filing of similarly substantial confidential data. It was clear from the definition adopted that the legislator chose not to do so. Despite the exceptional history of thalidomide, there was no cogent legal basis to create an exception. 180 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Per M. Nadon J.A. (dissenting) The 1962 legislative response to thalidomide made it generally unavailable in Canada. Prior to its reintroduction by C Inc., it was not available to serve as a reference product for a generic manufacturer. The manner in which thalidomide was treated amounted to a nullification of any previous approval. Accordingly, it should have been considered to meet the definition of an “innovative drug” and be entitled to data protection. A common sense interpretation of the phrase cannot lead to the conclusion that a one-time approval, quickly revoked and replaced with a prohibition that has remained consistently in force since 1962, was sufficient to be called “previous approval.” The very drug that provided the impetus to change the regulation could not now be denied data protection by a decades-old approval that was swiftly rescinded. Without its NOC, thalidomide was unable to satisfy the requirements for market approval in Canada. When thalidomide was removed from the Canadian market, it could not still have been considered as having been “previously approved.” The steps taken by the minister and Parliament in 1962 nullified the approval that was once extended to the aforementioned two drugs, which therefore allowed data protection to be extended to thalidomide: the “previously approved” condition in the definition of innovative drug was not met. The absence of a reference product supported the view that there was no prior approval, justified the way in which C Inc. proceeded in this case, and bolstered the rationale for extending data protection. The withdrawal of the previous approval was sufficient to allow Thalomid to receive data protection in accordance with the regulations. Cases considered by Johanne Gauthier J.A.: Canadian Generic Pharmaceutical Assn. v. Canada (Minister of Health) (2010), 2010 CAF 334, 2010 CarswellNat 5754, 90 C.P.R. (4th) 225, 413 N.R. 89, 2010 CarswellNat 4764, 2010 FCA 334, (sub nom. Canadian Generic Pharmaceutical Association v. Canada (Health)) [2012] 2 F.C.R. 618, [2010] F.C.J. No. 1582 (F.C.A.) — considered Prairie Acid Rain Coalition v. Canada (Minister of Fisheries & Oceans) (2006), 265 D.L.R. (4th) 154, [2006] 3 F.C.R. 610, 55 Admin. L.R. (4th) 191, 2006 FCA 31, 2006 CarswellNat 170, 2006 CarswellNat 1217, 2006 CAF 31, 345 N.R. 374, 21 C.E.L.R. (3d) 175, [2006] F.C.J. No. 129, [2006] A.C.F. No. 129 (F.C.A.) — referred to Takeda Canada Inc. v. Canada (Minister of Health) (2013), 2013 CarswellNat 57, 2013 FCA 13 (F.C.A.) — considered Telfer v. Canada (Revenue Agency) (2009), 2009 CarswellNat 655, (sub nom. CRA v. Telfer) 2009 D.T.C. 5046 (Eng.), [2009] 4 C.T.C. 123, 386 N.R. 212, Celgene Inc. v. Canada (Minister of Health) 181

2009 CarswellNat 5698, 2009 CAF 23, 2009 D.T.C. 5046, 2009 FCA 23, [2009] F.C.J. No. 71 (F.C.A.) — referred to Teva Canada Ltd. v. Canada (Minister of Health) (2012), 2012 FCA 106, 2012 CarswellNat 962, 2012 CAF 106, 2012 CarswellNat 2260, 101 C.P.R. (4th) 425, 431 N.R. 185 (F.C.A.) — distinguished

Cases considered by M. Nadon J.A.: Takeda Canada Inc. v. Canada (Minister of Health) (2011), 2011 CarswellNat 5267, 2011 CF 1444, 2011 FC 1444, 2011 CarswellNat 5778, 101 C.P.R. (4th) 304, 401 F.T.R. 259 (Eng.) (F.C.) Teva Canada Ltd. v. Canada (Minister of Health) (2012), 2012 FCA 106, 2012 CarswellNat 962, 2012 CAF 106, 2012 CarswellNat 2260, 101 C.P.R. (4th) 425, 431 N.R. 185 (F.C.A.) Statutes considered by Johanne Gauthier J.A.: Food and Drugs Act, S.C. 1952-53, c. 38 Pt. J — referred to Food and Drugs Act, R.S.C. 1985, c. F-27 Generally — referred to Pt. IV — referred to s. 30(3) — considered Sched. F — referred to Sched. H — referred to Food and Drugs Act and the Narcotic Control Act and to make a consequential amendment to the Criminal Code, Act to amend the, S.C. 1968-69, c. 41 Generally — referred to

Statutes considered by M. Nadon J.A.: Food and Drugs Act, R.S.C. 1985, c. F-27 Generally — referred to Sched. H — referred to Treaties considered by Johanne Gauthier J.A.: North American Free Trade Agreement, 1992, C.T.S. 1994/2; 32 I.L.M. 296,612 Generally — referred to Article 1711 ¶ 5 — considered Article 1711 ¶ 6 — considered Trade-Related Aspects of Intellectual Property Rights Agreement, 1994 Generally — referred to Article 39 ¶ 3 — considered 182 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Treaties considered by M. Nadon J.A.: North American Free Trade Agreement, 1992, C.T.S. 1994/2; 32 I.L.M. 296,612 Generally — referred to Trade-Related Aspects of Intellectual Property Rights Agreement, 1994 Generally — referred to Regulations considered by Johanne Gauthier J.A.: Food and Drugs Act, R.S.C. 1985, c. F-27 Food and Drug Regulations, C.R.C. 1978, c. 870 s. C.08.001 “new drug” — considered s. C.08.004.1(1) “innovative drug” — considered s. C.08.004.1(2) — considered s. C.08.004.1(3) — considered s. C.08.004.1(4) — considered s. C.08.004.1(5) — considered s. C.08.004.1(6) — considered s. C.08.004.1(7) — considered s. C.08.004.1(8) — considered s. C.08.004.1(9) — considered

Regulations considered by M. Nadon J.A.: Food and Drugs Act, R.S.C. 1985, c. F-27 Food and Drug Regulations, C.R.C. 1978, c. 870 Generally — referred to s. C.08.004.1 — considered s. C.08.004.1(1) “innovative drug” — considered Words and phrases considered previously “Previously” is defined in the Oxford English Dictionary (2d ed. (Oxford: Clar- endon Press, 1989), Volume XII) as an adverb meaning “at a previous or preceding time, before, beforehand, antecently”. The word “déjà” in French has more a complex definition. Its meaning depends on the context, but it has only one common meaning with “previously”. In that context, it is defined in the Le Nouveau Petit Robert (Paris: Dictionnaires Le Robert, 2002) as “auparavant, avant (cf., Une première fois*)” medicinal ingredient . . .the words “medicinal ingredient” as used in the [Food and Drug] Regulations are the equivalent of “chemical entity”, as are the words “active ingredient” and “active moiety” in the American Regulations, “active substance” in the Euro- pean Regulations, and “active component” in Australia. Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 183

new The word “new” (or “nouveau” in French) is defined in the Canadian Oxford Dictionary (Don Mills: Oxford University Press, 2001) as: a) of recent origin or arrival; b) made, invented, discovered, acquired or experienced recently or now for the first time. innovative Drugs are either innovative — drugs containing medicinal ingredients or indications appearing in the Canadian market for the first time, or generic — versions of innovative drugs made by non-research based companies, which achieve approval through an abbreviated compliance mechanism by demonstrating bioequivalence to the innovative drug.

APPEAL from judgment reported at Celgene Inc. v. Canada (Minister of Health) (2012), 2012 FC 154, 106 C.P.R. (4th) 357, 2012 CF 154, 2012 Car- swellNat 249, 2012 CarswellNat 826, 405 F.T.R. 8 (F.C.), granting application for judicial review and quashing decision of Minister of Health.

Mr. Eric Peterson, for Appellant Mr. William Vanveen, for Respondent Mr. Edward Hore, for Intervener

Johanne Gauthier J.A.:

1 This is an appeal from the decision of de Montigny J. of the Federal Court (the Judge), granting the application for judicial review of Celgene Inc. (Celgene) and quashing the decision of the Minister of Health to refuse to register Celgene’s drug THALOMID on the Register of Innova- tive Drugs. 2 The main issue in this appeal is whether THALOMID contains a medicinal ingredient not previously approved, and as such falls within the definition of an “Innovative Drug” found in subsection C.08.004.1 (1) of the Food and Drug Regulations, C.R.C. c. 870 (the Regulations) that can benefit from the Data Protection Provisions (DPP) in the Regulations, particularly market exclusivity usually for a period of 8 years. For the reasons that follow, I would allow this appeal. 184 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Background a. The history of thalidomide 3 The medicinal ingredient in THALOMID is thalidomide. A drug containing this ingredient was first launched commercially by a German pharmaceutical company in October 1957. At the time, the drug was pro- moted for use for sleeplessness and other minor ailments suffered by pregnant women. 4 In Canada, W.M.S. Merrell Company received approval for the sale of a drug including thalidomide under the brand name KEVADON on November 22, 1960. Frank W. R. Homer Limited received a similar approval for a drug including thalidomide under the brand name TALIMOL on October 11, 1961. 5 In 1961 and 1962, thalidomide was dramatically withdrawn from the world market because of its terateogenicity or potential to produce fetal malformation. Thousands of babies across the globe were born with de- formed or missing limbs or other horrible conditions. Many were born stillborn or died shortly after birth. (The Judge’s reasons, at paragraph 5) 6 The Department of Health ordered the permanent withdrawal of thalidomide from the Canadian market on April 6, 1962. Among other things, the withdrawal letter stated the following: With the withdrawal of this acceptance, thalidomide returns to the status of a new drug and must not be sold except to qualified investi- gators for the purpose of obtaining scientific and clinical information that could be used to support the safety of its use under conditions to be recommended by the manufacturer. Such sale does not include its sale through pharmacies. (The Judge’s reasons, at paragraph 6) 7 As noted in a Health Canada publication reviewing the history of drug regulations in Canada, by 1951, manufacturers were required to file a New Drug Submissions (NDS) prior to marketing their drug but the Regulations then in force under the Food and Drugs Act, R.S.C. 1985, c. F-27 (the Act) did not prevent the thalidomide tragedy of the early 1960s. This tragedy prompted a complete revision of the Regulations to strengthen the department’s regulatory ability. The revision marked the first appearance of the requirement for manufacturers to submit evidence of efficacy in seeking a Notice of Compliance (NOC) (Health Canada, “Brief History of Drug Regulations in Canada”, Appeal Book Volume 2, at page 277). Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 185

8 Thalidomide was one of two drugs (the other one being lysergic acid diethylamide (LSD)), the sale of which was absolutely prohibited pursuant to the amendment enacted by Bill C-3 on December 20, 1962, (1st Sess., 25th Parl., 1962) placing thalidomide on Schedule “H” to the Act. 9 In 1968, this Schedule “H” was replaced by one which contained a longer list of prohibited substances: 1: Thalidomide 2. Lysergic acid diethylamide 3. DET N,N-Diethyltryptamine and its salts 4. DMT N,N-Dimethyltryptamine and its salts 5. SMT (DOM) 4-Methy-2, 5-dimethoxyamphetamine SOR/68-411 The Canada Gazette Part II, Volume 102, No. 18, September 25, 1968 10 Then, in 1969, the scheme for dealing with other restricted substances was reconfigured and the drugs listed in 2 to 5 above (so-called street drugs) were included under Part J of the Act (SOR/69-417, the Canada Gazette Part II, Volume 103, No. 16, August 27, 1969). This left Thalidomide as the only drug listed in Schedule “H”. 11 In 1970, Thalidomide was moved from Schedule “F” of the Act, which listed drugs that were prohibited for sale in Canada. The old Schedule H now dealt only with “restricted drugs” as defined in Part IV of the Act and three new such drugs were added to the four already listed. 12 In 1984, Thalidomide was deleted from Schedule “F” and it is not mentioned anywhere since then (SOR/84-566, The Canada Gazette Part II, Volume 118, No. 16, August 8, 1984) 13 Despite its tragic history, thalidomide was eventually found to be effective in the treatment of leprosy and other related conditions (ENL), as well as a form of cancer. By 1994, Celgene Corporation was exclusively devoted to the commercialization of THALOMID to treat life threatening diseases, including cancer and ENL. 14 In Canada, THALOMID was first available in 1995 through the Health Canada Special Access Program (SAP) which was designed to provide exceptional access to drugs not approved for sale in Canada and for which a manufacturer does not hold an NOC. These sales are exempt from the formal comprehensive scientific and medical review undertaken when products are reviewed for a full marketing authorisation. Recently, this Court confirmed in Teva Canada Ltd. v. Canada (Minister of 186 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Health), 2012 FCA 106 (F.C.A.) (Teva Canada Ltd.), that an authorization under the SAP is not an approval within the meaning of the DPP in the Regulations. 15 Thalidomide had never been approved in a drug in the U.S., and in July 1998, Celgene obtained a first approval to use it as THALOMID for acute treatment of the cutaneous manifestations of moderate to severe ENL. The approval by the U.S. Food and Drug Administration (FDA) was subject to the strongest restricted distribution system to prevent birth defects. This required Celgene to create the controlled distribution system known in the U.S. as the “S.T.E.P.S. ®” program. In Canada, the controlled distribution system of this drug is known as “Rev. Aid ®”. In May 2006, the FDA approved THALOMID for the treatment of patients with newly diagnosed multiple myeloma (a form of cancer). 16 Celgene claims that Health Canada expected it to file a NDS for THALOMID in view of its high profile, the high volume of requests under the SAP and because NOC approval would better ensure safety. In order to obtain such an NOC, Celgene filed what it described as highly sensitive preparatory and confidential information comprised in 180 volumes of data, including pharmacology and pharmacokinetic studies, toxicology studies (including toxicity, carcinogenicity and reproduc- tive/development toxicity studies), clinical pharmacology studies and pivotal clinical trials. As noted by the Judge in his reasons at paragraph 23, it is the strictly confidential nature of this information that motivated Celgene to request that THALOMID be listed on the Register of “Inno- vative Drugs”, (per C.08.04.01.1 (9) of the Regulations). 17 After hundreds of questions were answered and additional information was provided, an NOC for THALOMID was finally issued on Au- gust 4, 2010. At that time, the Minister advised Celgene that THALOMID would not be eligible for data protection because its medicinal ingredient, thalidomide, had been previously approved by the Min- ister in at least two drugs - KEVADON and TALIMOL. 18 Having considered detailed submissions by Celgene, the Minister confirmed the decision not to list Celgene’s product on the “Innovative Drugs” Register. It is this final decision that was the subject of the application for judicial review before the Judge.

B. Legislative framework for Data Protection 19 Under subsection 30(3) of the Act, the Governor in Council is em- powered to adopt provisions implementing Canada’s international obli- Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 187

gations under Article 1711(5) and (6) of North American Free Trade Agreement Implementation Act (NAFTA), and Article 39(3) of the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS). These provisions read as follows: NAFTA 1711. (5) If a Party requires, as a condition for approving the marketing of pharmaceutical or agricultural chemical products that utilize new chemical entities, the submission of undisclosed test or other data necessary to determine whether the use of such products is safe and effective, the Party shall protect against disclosure of the data of persons making such submissions, where the origination of such data involves considerable effort, except where the disclosure is necessary to protect the public or unless steps are taken to ensure that the data is protected against unfair commercial use. (6) Each Party shall provide that for data subject to paragraph 5 that are submitted to the Party after the date of entry into force of this Agreement, no person other than the person that submitted them may, without the latter’s permission, rely on such data in support of an application for product approval during a reasonable period of time after their submission. For this purpose, a reasonable period shall normally mean not less than five years from the date on which the Party granted approval to the person that produced the data for approval to market its product, taking account of the nature of the data and the person’s efforts and expenditures in producing them. Subject to this provision, there shall be no limitation on any Party to implement abbreviated approval procedures for such products on the basis of bioequivalence and bioavailability studies. Trade Related Aspects of Intellectual Property Rights Agreement Section 7: Protection of Undisclosed Information Article 39 3. Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use. 188 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

ALENA´ 1711. (5) Lorsqu’une Partie subordonne l’approbation de la commercialisation de produits pharmaceutiques ou de produits chimiques pour l’agriculture qui comportent des el´´ ements chimiques nouveaux, a` la communication de données non divulguées résultant d’essais ou d’autres données non divulguées nécessaires pour déterminer si l’utilisation de ces produits est sans danger et efficace, cette Partie protégera ces données contre toute divulgation, lorsque l’établissement de ces données demande un effort considérable, sauf si la divulgation est nécessaire pour protéger le public, ou a` moins que des mesures ne soient prises pour s’assurer que les données sont protégées contre toute exploitation déloyale dans le commerce. (6) Chacune des Parties prévoira, en ce qui concerne les données visées au paragraphe 5 qui lui sont communiquées après la date d’entrée en vigueur du présent accord, que seule la personne qui les a communiquées peut, sans autorisation de cette dernière a` autrui, utiliser ces données a` l’appui d’une demande d’approbation de produit au cours d’une période de temps raisonnable suivant la date de leur communication. On entend généralement par période de temps raisonnable, une période d’au moins cinq années a` compter de la date a` laquelle la Partie en cause a donné son autorisation a` la personne ayant produit les données destinées a` faire approuver la commercialisation de son produit, compte tenu de la nature des don- nées, ainsi que des efforts et des frais consentis par cette personne pour les produire. Sous réserve de cette disposition, rien n’empêchera une Partie d’adopter a` l’égard de ces produits des procédures d’homologation abrégées fondées sur des etudes´ de bioéquivalence et de biodisponibilité. Accord sur les droits de propriété qui touchent au commerce Section 7: Protection des renseignements non divulgués Article 39 3. Lorsqu’ils subordonnent l’approbation de la commercialisation de produits pharmaceutiques ou de produits chimiques pour l’agriculture qui comportent des entités chimiques nouvelles a` la communication de données non divulguées résultant d’essais ou d’autres données non divulguées, dont l’établissement demande un effort considérable, les Membres protégeront ces données contre l’exploitation déloyale dans le commerce. En outre, les Membres protégeront ces données contre la divulgation, sauf si cela est néces- saire pour protéger le public, ou a` moins que des mesures ne soient prises pour s’assurer que les données sont protégées contre l’exploitation déloyale dans le commerce. Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 189

20 The first set of Data Protection Provisions (DPP) were adopted in 1995 (SOR/95-411, now repealed). They applied as follows: C.08.004.1. (1) Where a manufacturer files a new drug submission, an abbreviated new drug submission, a supplement to a new drug submission or a supplement to an abbreviated new drug submission for the purpose of establishing the safety and effectiveness of the new drug for which the submission or supplement is filed, and the Minister examines any information or material filed with the Min- ister, in a new drug submission, by the innovator of a drug that contains a chemical or biological substance not previously approved for sale in Canada as a drug, and the Minister, in support of the manufacturer’s submission or supplement, relies on data contained in the information or material filed by the innovator, the Minister shall not issue a notice of compliance in respect of that submission or supplement earlier than five years after the date of issuance to the innovator of the notice of compliance or approval to market that drug, as the case may be, issued on the basis of the information or material filed by the innovator for that drug. C.08.004.1. (1) Lorsque le fabricant dépose une présentation de drogue nouvelle, une présentation abrégée de drogue nouvelle ou un supplément a` l’une de ces présentations en vue de faire déterminer l’innocuité et l’efficacité de la drogue nouvelle qui en est l’objet, et que le ministre examine les renseignements et le matériel présentés, dans une présentation de drogue nouvelle, par l’innovateur d’une drogue contenant une substance chimique ou biologique dont la vente comme drogue n’a pas et´´ e préalablement approuvée au Canada et s’appuie sur les données y figurant pour etayer´ la présentation ou le supplément du fabricant, il ne peut délivrer un avis de conformité a` l’égard de cette présentation ou de ce supplément avant l’expiration du délai de cinq ans suivant la date a` laquelle est délivré a` l’innovateur l’avis de conformité ou l’approbation de commercialiser cette drogue, selon le cas, d’après les renseignements ou le matériel présentés par lui pour cette drogue. 21 The current version of the DPP in the Regulations were adopted in 2006 and the relevant provision (C.08.04.1(1)) reads in part as follows: “innovative drug” “innovative drug” means a drug that contains a medicinal ingredient not previously approved in a drug by the Minister and that is not a variation of a previously approved medicinal ingredient such as a salt, ester, enantiomer, solvate or polymorph. (drogue innovante) [My emphasis] 190 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

(2) This section applies to the implementation of Article 1711 of the North American Free Trade Agreement, as defined in the definition “Agreement” in subsection 2(1) of the North American Free Trade Agreement Implementation Act, and of paragraph 3 of Article 39 of the Agreement on Trade-related Aspects of Intellectual Property Rights set out in Annex 1C to the World Trade Organization Agree- ment, as defined in the definition “Agreement” in subsection 2(1) of the World Trade Organization Agreement Implementation Act. (3) If a manufacturer seeks a notice of compliance for a new drug on the basis of a direct or indirect comparison between the new drug and an innovative drug, (a) the manufacturer may not file a new drug submission, a supplement to a new drug submission, an abbreviated new drug submission or a supplement to an abbreviated new drug submission in respect of the new drug before the end of a period of six years after the day on which the first notice of compliance was issued to the innovator in respect of the innovative drug; and (b) the Minister shall not approve that submission or supplement and shall not issue a notice of compliance in respect of the new drug before the end of a period of eight years after the day on which the first notice of compliance was issued to the innovator in respect of the innovative drug. (4) The period specified in paragraph (3)(b) is lengthened to eight years and six months if (a) the innovator provides the Minister with the description and results of clinical trials relating to the use of the innovative drug in relevant pediatric populations in its first new drug submission for the innovative drug or in any supplement to that submission that is filed within five years after the issuance of the first notice of compliance for that innovative drug; and (b) before the end of a period of six years after the day on which the first notice of compliance was issued to the innovator in respect of the innovative drug, the Minister determines that the clinical trials were designed and conducted for the purpose of increasing knowledge of the use of the innovative drug in those pediatric populations and this knowledge would there-by provide a health benefit to members of those populations. (5) Subsection (3) does not apply if the innovative drug is not being marketed in Canada. Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 191

(6) Paragraph (3)(a) does not apply to a subsequent manufacturer if the innovator consents to the filing of a new drug submission, a supplement to a new drug submission, an abbreviated new drug submission or a supplement to an abbreviated new drug submission by the subsequent manufacturer before the end of the period of six years specified in that paragraph. (7) Paragraph (3)(a) does not apply to a subsequent manufacturer if the manufacturer files an application for authorization to sell its new drug under section C.07.003. (8) Paragraph (3)(b) does not apply to a subsequent manufacturer if the innovator consents to the issuance of a notice of compliance to the subsequent manufacturer before the end of the period of eight years specified in that paragraph or of eight years and six months specified in subsection (4). (9) The Minister shall maintain a register of innovative drugs that includes information relating to the matters specified in subsections (3) and (4). « drogue innovante » « drogue innovante » S’entend de toute drogue qui contient un ingré- dient médicinal non déjà approuvé dans une drogue par le ministre et qui ne constitue pas une variante d’un ingrédient médicinal déjà ap- prouvé tel un changement de sel, d’ester, d’énantiomère, de solvate ou de polymorphe. (innovative drug) [Mon souligné] (2) Le présent article s’applique a` la mise en œuvre de l’article 1711 de l’Accord de libreéchange nord-américain, au sens du terme « Ac- cord » au paragraphe 2(1) de la Loi de mise en œuvre de l’Accord de libre-échange nord-américain, et du paragraphe 3 de l’article 39 de l’Accord sur les aspects des droits de propriété intellectuelle qui touchent au commerce figurant a` l’annexe 1C de l’Accord sur l’Organisation mondiale du commerce, au sens du terme « Accord » au paragraphe 2(1) de la Loi de mise en œuvre de l’Accord sur l’Organisation mondiale du commerce. (3) Lorsque le fabricant demande la délivrance d’un avis de con- formité pour une drogue nouvelle sur la base d’une comparaison directe ou indirecte entre celle-ci et la drogue innovante: a) le fabricant ne peut déposer pour cette drogue nouvelle de présentation de drogue nouvelle, de présentation abrégée de drogue nouvelle ou de supplément a` l’une de ces présenta- tions avant l’expiration d’un délai de six ans suivant la date a` laquelle le premier avis de conformité a et´´ e délivré a` l’innovateur pour la drogue innovante; 192 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

b) le ministre ne peut approuver une telle présentation ou un tel supplément et ne peut délivrer d’avis de conformité pour cette nouvelle drogue avant l’expiration d’un délai de huit ans suivant la date a` laquelle le premier avis de conformité a et´´ e dé- livré a` l’innovateur pour la drogue innovante. (4) Le délai prévu a` l’alinéa (3)b) est porté a` huit ans et six mois si, a` la fois: a) l’innovateur fournit au ministre la description et les résultats des essais cliniques concernant l’utilisation de la drogue innovante dans les populations pédiatriques concernées dans sa première présentation de drogue nouvelle a` l’égard de la drogue innovante ou dans tout supplément a` une telle présen- tation déposé au cours des cinq années suivant la délivrance du premier avis de conformité a` l’égard de cette drogue innovante; b) le ministre conclut, avant l’expiration du délai de six ans qui suit la date a` laquelle le premier avis de conformité a et´´ e dé- livré a` l’innovateur pour la drogue innovante, que les essais cliniques ont et´´ e con¸cus et menés en vue d’élargir les connaissances sur l’utilisation de cette drogue dans les populations pédiatriques visées et que ces connaissances se traduiraient par des avantages pour la santé des membres de celles-ci. (5) Le paragraphe (3) ne s’applique pas si la drogue innovante n’est pas commercialisée au Canada. (6) L’alinéa (3)a) ne s’applique pas au fabricant ultérieur dans le cas où l’innovateur consent a` ce qu’il dépose une présentation de drogue nouvelle, une présentation abrégée de drogue nouvelle ou un supplé- ment a` l’une de ces présentations avant l’expiration du délai de six ans prévu a` cet alinéa. (7) L’alinéa (3)a) ne s’applique pas au fabricant ultérieur s’il dépose une demande d’autorisation pour vendre cette drogue nouvelle aux termes de l’article C.07.003. (8) L’alinéa (3)b) ne s’applique pas au fabricant ultérieur dans le cas où l’innovateur consent a` ce que lui soit délivré un avis de con- formité avant l’expiration du délai de huit ans prévu a` cet alinéa ou de huit ans et six mois prévu au paragraphe (4). (9) Le ministre tient un registre des drogues innovantes, lequel contient les renseignements relatifs a` l’application des paragraphes (3) et (4). Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 193

C. The Federal Court Judge’s Decision 22 The Judge accepted the parties’ submissions that questions of law before the Minister were to be reviewed on the standard of correctness. 23 He then proceeded to apply the modern rule of statutory interpretation (paragraphs 26 and 27 of his reasons), noting particularly that as the DPP in the Regulations are intended to implement international treaty obligations. He explained that the said treaties are considered a primary aid to construction, even where there is no ambiguity in the Regulations. 24 In that respect, he noted that, as discussed in Canadian Generic Pharmaceutical Assn. v. Canada (Minister of Health), 2010 FCA 334 (F.C.A.) at paragraph 110, the relevant provisions of NAFTA and TRIPS “seek to provide protection to innovators in respect of ‘undisclosed tests or other data’ that they must provide to government entities in order to obtain approval for their new drugs”. These treaties set out a scheme for protection against the unfair commercial use of such undisclosed data, the origination of which involved considerable effort. This is not disputed. 25 However, the Judge rejected the Minister’s position that this international scheme is meant to protect only those products that use “new chemical entities” (In French, “´el´ements chimiques nouveaux”), and that thalidomide is not a “new chemical entity” as it was approved for marketing and sale in Canada in the 1960s. 26 At paragraph 33 of his reasons, he said: 33. There are a number of flaws with respect to that construction of the DPR [DPP]. First of all, thalidomide was not approved for any use prior to the issuance of the NOC. Indeed, it was included in Schedule “H” and then “F” of the Act and was therefore totally banned in Canada. This is not a case, therefore, where the data was collected for the different use of a drug already approved. The purpose of the DPR [DPP] in requiring that the drug not be previously approved is to ensure a company is not granted data protection for something in previous use and for which no innovation was required. This is made clear by the exclusion from the scope of data protection, in the definition of “innovative drugs”, of variations or minor changes to a drug previously approved such as salts, esters, solvates, polymorphs or enantiomers. The Regulatory Impact Analysis State- ment explicitly states that these exclusions are aimed at preventing an innovator from seeking additional data protection for a minor change to a drug. [My emphasis] 194 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

27 He also noted at paragraph 35 of his reasons that “Celgene’s innovation was to take something that was banned as dangerous and which had not been found to be safe and efficacious and to show it to be a useful, lifesaving drug”. 28 The Judge agreed with Celgene that, to make TRIPS and NAFTA obligations meaningful, the protection of “new chemical entities” must arise when approval is sought for a product containing an entity that does not have approval in a drug in a particular jurisdiction. Thus, a member country could not avoid the obligation to grant protection because the chemical entity in the product has been approved elsewhere or is otherwise known. 29 Moreover, he went on to say that: “... it would similarly be inconsistent with these treaties to refuse data protection when a chemical entity is put to an entirely new use, on the basis of extensive and genuinely new data ensuring its effectiveness and safety. In the same way as variations of a drug not included in the definition of innovative drug, new uses of previously approved ingredients must be considered on a case-by-case basis to determine how innovative they are and whether the data supporting them was ‘gathered at considerable cost which is not otherwise pub- licly available in that assembled form’” (Judge’s reasons at paragraph 36). 30 Although he mentioned Celgene’s argument that an approval under the regulatory regime in place prior to 1963 is not an approval under the DPP, the Judge did not decide the issue, simply noting that this argument reinforces his conclusion that the prior approval of KEVADON and TALIMOL in this case should not stand in the way of data protection for THALOMID. 31 At paragraph 46 of his reasons, he indicated that this conclusion is based on the following combined facts: i. The prior approval of thalidomide was short lived and should never have been given at the time; ii. Thalidomide was effectively banned until Celgene came up with its NDS for THALOMID; and, iii. The 2010 NOC approval was granted for Celgene’s product on the basis of completely new studies and data. 32 Lastly, although no evidence was presented in that respect, the Judge indicated that this case was obviously quite an exceptional one, and that Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 195

his decision should therefore have a limited impact in the foreseeable future.

Analysis 33 This Court’s role is to determine whether the Judge hearing the application for judicial review properly identified and applied the standard of review (Prairie Acid Rain Coalition v. Canada (Minister of Fisheries & Oceans), 2006 FCA 31 (F.C.A.) at paragraph 14; Telfer v. Canada (Revenue Agency), 2009 FCA 23 (F.C.A.) at paragraph 18). 34 The Judge applied the correctness standard to the Minister’s interpretation of the definition of “innovative drug” in the Regulations (a pure question of law). In Takeda Canada Inc. v. Canada (Minister of Health), 2013 FCA 13 (F.C.A.), this Court held that this is the appropriate standard of review to be applied to such questions. 35 Whether the Judge correctly applied this standard essentially means that, to allow this appeal, this Court must agree with the Minister’s interpretation of “innovative drug” and more particularly of the words “not previously approved in a drug by the Minister”. (in French, “non déjà autorisé dans une drogue par le ministre”). 36 The applicable principles of statutory interpretation are not in dispute. It is trite law that the words of an Act must be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. 37 As mentioned, THALOMID is a “new drug” within the meaning of the Regulations (at section C.08.001). Thus, the Minister’s approval must be obtained before it can be sold in Canada. I note that as Celgene was seeking an approval for a new indication for thalidomide, even if the 1960’s approvals had not been withdrawn, THALOMID would still have fallen within the definition of “new drug”and would have been required to file voluminous data obtained as a result of considerable effort and expense. 38 However, Celgene did not argue before the Minister and the Judge that it should qualify as an “innovative drug” because of the new use or indication for which it submitted its NDS for thalidomide. The parties indicated that the issue of whether a new indication or new use of an approved medicinal ingredient qualifies under the definition of “innovative drug” was not really argued before the Judge. In the circumstances, I agree that the Judge should have refrained from commenting on this question, which has never been the subject of adjudication. The com- 196 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

ments at paragraphs 36-38 of his reasons should therefore be given no precedential value. This is especially so considering that: i) the definition of “innovative drug” and the relevant provisions of the treaties aforementioned refer only to the “medicinal ingredient” and the “chemical entity” in a drug, never to its use; and ii) he did not consider clearly relevant passages of the Regulatory Impact Analysis Statements (RIAS) (such as the passage of the RIAS dated October 5, 2006 cited and discussed at paragraphs 127 and 128 of Dawson J.A.’s reasons in Takeda Canada Inc., above, and the RIAS, dated October 5, 2004, Canada Gazette, Part II, Volume 138, No. 50 Page 3713, Note 1). Also, the periods of exclusivity granted for a “new indication or use” in the United States and the European Union are less than the minimum period set out in the relevant treaties. This would suggest that these parties understand that the provisions of these treaties do not cover such cases. All this militates against the view expressed by the Judge. 39 It is not necessary to say more in this respect as this appeal does not require it. 40 Turning back to the true question before us — Is thalidomide a “medicinal ingredient not previously approved in a drug by the Minister”? 41 Here the dispute is not as in Teva Canada Ltd., above, where the issue was what type of approval under the Regulations is covered by these words. Rather, what Celgene is asking the Court to say is that the word “approved” refers to the status of a medicinal ingredient in a drug at the time a NDS is submitted by the innovator. In this respect, Celgene fo- cussed on thalidomide’s status as a prohibited drug, i.e. a banned drug at the relevant time. It did not argue that this drug was never approved (i.e., that the approval was null ab initio). That said, the interpretation proposed by Celgene would necessarily apply to any drug in respect of which an approval (NOC) has been withdrawn because of a Minister’s decision or even abandoned voluntarily before the filing of a second NDS for this drug. 42 In the Minister’s view, the word “approved” can only refer to the fact that an approval (more particularly a NOC) has been issued by the Min- ister. In any event, the Minister says that the word “approved” is qualified by the adverb “previously” which clearly support its view that one must look at an action which took place in the past rather than at the current status of the drug. 43 “Previously” is defined in the Oxford English Dictionary (2d ed. (Ox- ford: Clarendon Press, 1989), Volume XII) as an adverb meaning “at a Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 197

previous or preceding time, before, beforehand, antecently”. The word “déjà” in French has more a complex definition. Its meaning depends on the context, but it has only one common meaning with “previously”. In that context, it is defined in the Le Nouveau Petit Robert (Paris: Diction- naires Le Robert, 2002) as “auparavant, avant (cf., Une première fois*)”. 44 These words do not lend themselves easily to the construction proposed by Celgene, which in fact would require to construe “previously” as meaning “currently” or to read in the words “and currently” before the word “approved” in the definition. 45 Still, Celgene submits that the Court should adopt its view and effectively read down the definition because its interpretation is more in line with the primary purpose and object of the scheme of the DPP and the relevant treaty provisions, which is to promote innovation and protect innovators against unfair use of their confidential data gathered at great cost. I do not accept that the purpose and object of the relevant provisions of NAFTA and TRIPS is as wide as Celgene suggests. In my view, the protection accorded to the confidential data discussed above is limited to certain innovations only. 46 Recognizing that the legislator clearly intended to avoid any duplication of the market exclusivity period provided for in the DPP, Celgene argues that in this case, there would be no such duplication. That may well true in this case, but I cannot conclude that it would be true for all cases that could be affected by the interpretation proposed by Celgene. 47 The signatories of these treaties have agreed to grant the minimum protections set out therein only in the context of approvals for the marketing of pharmaceutical and agricultural products which utilize “new chemical entities”. Celgene submits that this limitation does not apply in Canada because the Regulations make no reference to “new chemical entities” (Respondent’s memorandum, at paragraph 61). I do not agree. 48 In my view, the words “medicinal ingredient” as used in the Regula- tions are the equivalent of “chemical entity”, as are the words “active ingredient” and “active moiety” in the American Regulations, “active substance” in the European Regulations, and “active component” in Aus- tralia. It is quite usual for the words of a treaty to be harmonized with the language used in one’s own regulatory scheme. 49 This view is supported by the following note in the RIAS dated Octo- ber 5, 2004, explaining the use of the word “medicinal ingredient”: Although the NAFTA and TRIPS agreements use the term “new chemical entity”, “new medicinal ingredient” is used here to corre- 198 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

spond to the terminology already used in the Food and Drugs Regulations. 50 The word “new” (or “nouveau” in French) is defined in the Canadian Oxford Dictionary (Don Mills: Oxford University Press, 2001) as: a) of recent origin or arrival; b) made, invented, discovered, acquired or experienced recently or now for the first time. 51 The parties agree that, read in the context of a provision dealing with approval of pharmaceutical product for marketing in the territory of a signatory state, “new” does not mean “unknown”, “made”, “invented” or “discovered recently”. In my view, it can reasonably be understood to mean submitted for approval for the first time to the appropriate authority in the territory of a signatory state. 52 No evidence or foreign case law has been submitted to show that such an interpretation would be at odds with the general understanding of the signatories. Nor was any such evidence or case law produced to establish that other parties to these treaties consider banned drugs or drugs for which a previous approval for marketing has been withdrawn as “new” within the meaning of the provision under review. 53 When Celgene sought an approval for THALOMID in 1998 in the U.S., thalidomide qualified as a new active substance as it had never been approved in 1960s in that country. 54 My understanding of the relevant treaties is in line with the construction proposed by the Minister. It also reads harmoniously with subsections 3 (a) and (b) of the DPP, which provide that the period of exclusivity starts on “the day on which the first NOC was issued to the innovator”. 55 The fact that Celgene had to submit a considerable amount of confidential data gathered at great cost does not, in and of itself, justify stretching the language of the definition of “innovative drug”. It is only one of two necessary pre-requisites for the application of the treaties’ provisions. 56 Parliament had the power to extend the protection granted under the DPP to other “new drugs” as defined in the Regulations, which also require the filing of similarly substantial confidential data. From the definition adopted, in my view, it is clear that the legislator chose not to do so. Celgene Inc. v. Canada (Minister of Health) Johanne Gauthier J.A. 199

57 That is not to say that I assume that the legislator had banned drugs in mind when he made his choice and adopted the definition of “innovative drug” in the Regulations. 58 At the hearing, the parties confirmed that there was no evidence as to how many drugs have been banned throughout the years and how many NOCs have been withdrawn or abandoned. 59 It is obvious that the Judge was troubled by what he perceived as a great injustice. He said at paragraph 42: It is equally clear that safety and effectiveness are the main considerations with respect to a drug approved for public use. This is indeed the position that was taken by the Minister in Teva Canada Limited, above at para 21. Would it then be fair to say that a drug, the approval of which has been withdrawn for safety reasons, should nevertheless be considered as having been previously approved? In my view, such a finding would be entirely perverse. 60 Still, it appears that he was not prepared to simply exclude from the definition, all drugs in respect of which an NOC had been withdrawn. As noted, in paragraph 28 above, he justified his conclusion on the basis of combined facts, setting stricter parameters to the application of the exclusion. 61 Although I recognize the exceptional history of thalidomide, I do not see any cogent legal basis to create an exception even using the strict parameters set out by the Judge. 62 The change in the regulatory regime that occurred in 1963 may have been major, but the issue with thalidomide was not in respect of its efficacy, which was the most important change to the requirements introduced in 1963. How many other changes in the regulatory requirements throughout the years since then could be argued to be significant enough to warrant another exception to the rule? 63 Should Courts have to inquire as to why a NOC was suspended or withdrawn? Should a drug be treated differently depending on whether its NOC was withdrawn because it was based on inaccurate or even fraudulent data, as opposed to an alleged error by the regulatory authority of the time? 64 What if a drug is banned after the innovator enjoyed six months of exclusivity on the market before the revocation of its NOC? Should it be treated in the same way as a banned drug that enjoyed one, two or three years of market exclusivity? 200 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

65 If I were to read the words “and currently” into the DPP, it could well open the door to all kinds of unintended scenarios. 66 Celgene insisted before us that “facts do matter”. I agree, but as the adage goes “hard facts often make bad law”. 67 I would allow this appeal with costs. I would set aside the judgment of the Federal Court and, rendering the judgment which ought to have been rendered, I would dismiss the application for judicial review with costs.

K. Sharlow J.A.:

I agree

M. Nadon J.A. (Dissenting):

68 I have carefully reviewed the reasons of my colleague Gauthier J.A. and, with respect, I cannot agree with her disposition of the appeal. I would dismiss the appeal and affirm the judgment of de Montigny J. in its result. 69 This appeal is about the interpretation of the phrase “previously approved” in the definition of an “innovative drug”, as defined in subsection C.08.004.1(1) of the Food and Drug Regulations, C.R.C. c. 870 (“the Regulations”), and whether that phrase should encompass a medicinal ingredient that briefly satisfied Canadian regulatory requirements before its approval was revoked. Gauthier J.A. concludes that the fact that the medicinal ingredient thalidomide once received the regulatory green light in Canada means that it was previously approved for the purposes of the Regulations, despite the outright ban that quickly replaced that approval and effectively persisted for 33 years. In her view, courts should not inquire into why a notice of compliance (NOC) was suspended or revoked, but should strictly construe the phrase “previously approved”. Further, my colleague sees the contrary interpretation as leading to any number of unintended scenarios. I do not agree. 70 The 1962 legislative response to the thalidomide tragedy introduced a new schedule to the Food and Drugs Act, R.S.C. 1985, c. F-27 (“the Act”) to expressly prohibit the sale of thalidomide. This legislation, and its successors, have made thalidomide both generally unavailable in Can- ada and unavailable to serve as a Canadian reference product for drug manufacturers. Accordingly, thalidomide was unable to appropriately oc- Celgene Inc. v. Canada (Minister of Health) M. Nadon J.A. 201

cupy the space carved out for an “innovative drug” within the overall scheme of the Regulations. The key fact that the Minister of Health communicated an expectation that Celgene should submit a New Drug Sub- mission (NDS) to obtain regulatory approval, as opposed to an Abbrevi- ated New Drug Submission (ANDS), belies an underlying belief that thalidomide was, although not strictly innovative, best suited to occupy the space set out for an “innovative drug” within the Regulations. In Gauthier J.A.’s opinion, interpreting the term “previously” to mean “currently” inappropriately stretches the meaning of the term and could lead to inadvertent consequences. Yet, as I will demonstrate below, concluding that thalidomide was indeed previously approved is at odds with the manner in which the Regulations prescribes roles for innovative and generic drugs. 71 Considering the 1960 and 1961 approvals of KEVADON and TALIMOL, respectively, as sufficient to bar thalidomide from achieving innovative drug status in Canada disregards the intention of the Regula- tions. The Patented Medicine (Notice of Compliance) regime demarcates separate roles for innovative and generic drugs, and their manufacturers. Drugs are either innovative — drugs containing medicinal ingredients or indications appearing in the Canadian market for the first time, or generic — versions of innovative drugs made by non-research based companies, which achieve approval through an abbreviated compliance mechanism by demonstrating bioequivalence to the innovative drug. Since thalidomide was not on the Canadian market prior to its reintroduction by Celgene, and therefore not available to serve as a reference product for a generic manufacturer, it follows that the more appropriate space for thalidomide to occupy is that of an innovative drug. It is not, as the Minister suggests, most appropriate to conclude that it should occupy neither. 72 Moreover, the phrase “previously approved” cannot be intended to apply as suggested by Gauthier J.A. or the Minister of Health, i.e., because the drug was once allowed to be sold in Canada, it remains previously approved even after its sale was disallowed. This view of the phrase leads to an incoherent result. After being removed from the market by legislative decree in 1962, thalidomide was not “previously approved” by either a common sense understanding of the term, or by the definition offered in previous case law. The approval was revoked. For all intents and purposes, the manner in which thalidomide has been treated has amounted to a nullification of any previous approval. Accord- 202 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

ingly, it should be considered to meet the definition of an “innovative drug” and be entitled to data protection. 73 In these reasons, I begin by briefly discussing how the legislative treatment of thalidomide has prevented its use in Canada since 1962. I then survey relevant case law from this Court and the Federal Court, discussing other judicial interpretations of the phrase “previously approved” and how this interpretation fits into the innovative drug regime. I depart from the contextual approach of de Montigny J. (the judge) to more explicitly consider whether the revocation of thalidomide’s ministerial approval amounts to a nullification and conclude that it does. Finally, I address the argument of whether the changes to Canada’s drug approval regulations, which were precipitated by the thalidomide tragedy itself, impact whether a drug approved under the 1955 Regulations should still be considered approved under the modern scheme. I conclude that this does not matter: the withdrawal of the approval is sufficient to determine that thalidomide should not be considered previously approved. This analysis leads me to the conclusion that the appeal should be dismissed.

a. Legislative History of Thalidomide 74 Gauthier J.A. surveys the legislative history at paragraphs 3 - 18 of her reasons. This history demonstrates that various legislative mechanisms were in place to prohibit use of thalidomide in Canada from 1962 until 1984. As indicated by the letter from the Minister of Health my colleague quotes at paragraph 6 of her reasons, the 1962 withdrawal caused thalidomide to revert to the status of a new drug. The tragic circumstances that accompanied the use of thalidomide also provided the impetus for extraordinary measures to be taken in the House of Com- mons: the Act was amended with a new schedule that expressly prohibited the use of thalidomide in Canada. Illustrating the deeply felt effects of thalidomide in Canada, the Respondent quotes from the member from Simcoe East, Mr. P.B. Rynard from House of Commons debate on Octo- ber 26, 1962 as saying the following: Thalidomide is no longer the name of a drug; it is the name of a tragedy that forces one to think of the accidental deaths of hundreds of children across Canada every year. 75 Parliament’s many legislative responses over the years also demonstrate the unique situation presented by thalidomide. It was the only medicinal ingredient to ever be expressly prohibited alongside various ille- gal street drugs; it, at times, received its very own sections and schedules Celgene Inc. v. Canada (Minister of Health) M. Nadon J.A. 203

within the Act; and it persisted within the Act even after dramatic over- hauls further modified the administration of restricted substances — rele- gating those street drugs that were previously considered alongside it to other pieces of legislation. 76 Even more importantly, the prohibition was consistent and complete. There were no gaps in this legislative scheme and no opportunities for manufacturers to return thalidomide to the Canadian marketplace. Before us, the Appellant suggested that after thalidomide was removed from Schedule F in 1984, it was no longer expressly prohibited in Canada. Neither party made submissions on why thalidomide was taken out of the Act or where Health Canada came to see its place within the larger regulatory scheme. Regardless, the Special Access Programme (SAP), further described below, was already in place by 1984. Therefore, thalidomide would have been theoretically available through SAP since its express prohibitions were removed. This means there has always been some method of regulating thalidomide within the existing scheme. THALOMID was first made available through the SAP in 1995. By that time, it had been absent from the Canadian market for 33 years. 77 Because thalidomide reverted to the status of a “new drug” with the 1962 withdrawal, it would nonetheless have been unavailable for doctors to generally prescribe or to serve as a Canadian reference product for a generic manufacturer. In order to be generally prescribed by physicians or available other than through the SAP, thalidomide would have required the submission of an NDS and to receive the corresponding approvals. Moreover, physicians would not have been particularly interested in prescribing thalidomide until its therapeutic value was once again demonstrated. It was only with the research efforts of Celgene in the early 1990s that thalidomide became a viable treatment option for ailments including severe erythema nodosum leprosum (ENL) and multiple myeloma. As my colleague mentions, THALOMID was approved in the United States for the treatment of ENL in 1998. As thalidomide had never before been approved for use in the United States, no similar situation arose. 78 I now turn my attention to the access through the SAP and what use of this programme means for the interpretation of the phrase “previously approved.” 204 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

B. The Meaning of Previously Approved 79 Since the amendments to the Regulations, only a few cases have dealt with the concept of an innovative drug and the appropriate interpretation of its definition. Fewer still specifically address the meaning of the phrase “previously approved.” However, in Teva Canada Ltd. v. Canada (Minister of Health), 2012 FCA 106 (F.C.A.) (Teva Canada Ltd.), this Court did consider the meaning of the term “previously approved” in the definition of an “innovative drug”, albeit in different circumstances. Teva Canada Ltd. had contested the Minister’s decision to list the drug Eloxa- tin on the register of innovative drugs and the corresponding grant of data protection that accompanied it. The key question was whether thousands of ministerial authorizations to use Eloxatin for emergency treatment under the SAP constituted previous approval within the scope of the Regulations. If these authorizations were considered tantamount to previous approval, Eloxatin would not be entitled to receive data protection under the Regulations. 80 This Court affirmed the decision of the Federal Court and concluded that Eloxatin was indeed entitled to data protection: the uses permitted under the SAP did not amount to previous approval of the drug under the Regulations. For a unanimous court, Stratas J.A. explained the architec- ture and wording of the Regulations and how this interpretation was consistent with Canada’s treaty obligations. The appeal was dismissed. 81 Teva illustrates two important points. First, it delineates how the SAP fits into the scheme of the Regulations. Stratas J.A. describes the programme as follows: [25] The Special Access Programme is different. It allows for the use of certain drugs despite the absence of data and studies demonstrating the safety and efficacy of the drug. [26] The Programme is set out in sections C.08.010 and C.08.011 of the Regulations under the heading “Sale of New Drug for Emergency Treatment.” [27] This Court has described the Special Access Programme in the following way: [4] ... [T]he Director (Assistant Deputy Minister, Health Products and Food Branch, Health Canada) may authorize the sale of a new drug to a physician under the Special Access Programme (“SAP”) for the emergency treatment of a patient. Celgene Inc. v. Canada (Minister of Health) M. Nadon J.A. 205

..... [10] When requesting Health Canada for an authorization under the SAP, a physician must: (i) describe the patient’s medical condition; (ii) explain why the medicine is the best choice for treating the condition; and (iii) provide data on the use, safety and efficacy of the medicine requested. If granted, an SAP authorization authorizes, but does not require, a manufacturer to sell a specified quan- tity of the medicine to the requesting physician for the emergency treatment of a specified condition of a named patient under the care of the physician. The physician must report to Health Canada on the use of the medicine, including any adverse effects. [11] SAP authorizations...are normally granted for serious or lifethreatening conditions when conventional treatments have proved ineffective or are not suitable for the particular patient. Typically, medicines authorized under the SAP are treatments of last resort and are not subject to the same level of scrutiny for safety and efficacy as medicines for which an NOC has been issued. Nonethe- less, Health Canada reviews the SAP request and any other available data on the new medicine in order to “manage the risk” of its use. See Hospira Healthcare Corp. v. Canada (Attorney General), 2010 FCA 345 (CanLII), 2010 FCA 345; see also Canada (Attorney Gen- eral) v. Celgene Corporation, 2009 FCA 378 (CanLII), 2009 FCA 378, aff’d 2011 SCC 1 (CanLII), 2011 SCC 1, [2011] S.C.R. 3. [28] Drugs available under the Special Access Programme are not founded upon data and studies that, in the Minister’s view, have established safety and effectiveness. Rather, they are made available in emergency situations as a treatment of last resort where conventional treatments have failed or are unavailable. As this Court has already held, sales under the Special Access Programme alone are not evidence of a determination by the Minister of the safety and efficacy of a drug: Hospira, supra at paragraph 6. Indeed, it is theoretically possible that drugs available under the Special Access Programme are not entirely safe or effective, but, owing to the grievous circumstances of the patient, they may have some upside and are worth the risk. Authorizations under the Special Access Programme are best seen as compassionate permissions, not as approvals for the drug. 82 This understanding of the SAP demonstrates that the drugs being accessed through the programme cannot be considered to be approved for 206 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

use in Canada. These drugs do not have an NOC and they have not received the scrutiny regarding safety and efficacy that is associated with acquiring one. It follows that since thalidomide was being accessed through the SAP, it was not approved for use in Canada. The necessary implication is it cannot be “previously approved.” A common sense interpretation of the phrase cannot lead to the conclusion that a one-time approval, quickly revoked and replaced with a prohibition that has remained consistently in force since 1962 is sufficient to be called “previous approval.” 83 Additionally, this supports the conclusion that thalidomide, after being found to be unsafe, can no longer be considered as having been “previously approved” for an approval process based on safety. Since its therapeutic use became known in the 1990s, thalidomide has only been available through the SAP. As indicated in Teva Canada Ltd., it is “theoretically possible” that drugs under the SAP are “not entirely safe or effective.” In this situation, thalidomide had definitively found to be unsafe in 1962 and had not gone through additional regulatory approvals necessary to reverse that finding. 84 Second, Teva Canada Ltd. is helpful in defining what “previously approved” means in the context of the Regulations as a codification of Can- ada’s treaty obligations under the North American Free Trade Agreement and the Trade Related Aspects of Intellectual Property Rights Agreement. This is instructive, particularly since the Appellant makes arguments about how section C.08.004.1 should be read based on Canada’s treaty obligations. The Appellant focuses on how data protection is limited to new chemical entities in the treaties and how the Governor in Council subsequently integrated this concept into Canadian law through its definition of “innovative drug.” The Respondent replies that the spirit of the data protection provisions in NAFTA and TRIPS is to provide protection for data that is gathered through considerable effort and to guard against its unfair commercial use. Thus, the data set produced on thalidomide is captured by this purpose. At paragraph 42 of her reasons, Gauthier J.A. does not accept that the object and purpose of these provisions is as broad as the Respondent suggests. 85 In my opinion, however, Gauthier J.A.’s treatment of international in- struments is ultimately unhelpful. Quite simply, this case turns on whether thalidomide can be considered to be previously approved. It is Celgene Inc. v. Canada (Minister of Health) M. Nadon J.A. 207

that phrase that should be the focus of our attention. Stratas J.A. addresses very similar submissions in the Teva Canada Ltd. decision: [36] As mentioned in paragraph 16, above, Teva emphasizes that the treaty provisions require consideration of whether the drug contains a new chemical entity, whether the drug submission contains undisclosed data necessary to determine safety and efficacy, and whether the data involved considerable effort. That may be true, but that does not shed direct light on the meaning of “previously approved” in subsection C.08.004.1(1) of the Regulations. [37] Of more relevance to the meaning of “previously approved” is the repeated mention in these treaty provisions of the concept of marketing approval or, as Teva puts it, market authorization. Article 1171, paragraphs 5 and 6 of the North American Free Trade Agree- ment obligate Canada to protect data necessary for “approving of marketing” of pharmaceutical products for at least five years from when Canada granted “approval to the person that produced the data for approval to market its product.” Article 39, paragraph 3 of the Trade Related Aspects of Intellectual Property Rights Agreement similarly refers to data required “as a condition of approving the marketing of pharmaceutical” products. In Canada, market approval under the Regulations means the issuance of a notice of compliance and a drug information number. [38] Given that the definition of “innovative drug” in subsection C.08.004.1(1) of the Regulations was intended to implement these treaty provisions, “previously approved” in subsection C.08.004.1(1) must mean a previous marketing approval, i.e., the previous issuance of a notice of compliance and a drug information number. If someone has previously received a notice of compliance and a drug identification number for a particular drug, providing that person with data protection would go beyond the scope of the treaty provisions. Ac- cordingly, the definition of “innovative drug” in subsection C.08.004.1(1) does not include drugs that have been “previously approved.” 86 Based on this reasoning, the fact that thalidomide’s NOC was revoked supports the conclusion that it should not be held to have been previously approved. Without its NOC, thalidomide is unable to satisfy the requirements for market approval in Canada. It is impossible to accept that thalidomide has nonetheless been previously approved without having market approval. 87 At paragraph 89 of its submissions, the Respondent argues that the Teva Canada Ltd. case stands for the proposition that approval by the 208 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Minister is a two-step process that includes determinations of both safety and effectiveness. In this view, a finding by the Minister that a drug is both safe and effective is a condition precedent to the granting of market approval. The Respondent therefore argues that it is inconsistent to deny data protection to THALOMID because KEVADON and TALIMOL were specifically found to be unsafe. This determination leaves the condition precedent unsatisfied. 88 While this argument may overstate how the Minister’s authorization operates within the regime, it does illustrate an important difference between the current regulatory regime and the regime that was in place when approvals were granted to KEVADON and TALIMOL. In 1960, some of the requirements that a drug now must meet in order to be per- missible in Canada were absent from the regulatory scheme. As discussed below, approvals under previous versions of regulations generally remain in force unless expressly contrary direction is provided. Nonethe- less, I am unable to accept that the very drug that provided the impetus to change the Regulations could now be denied data protection by a decades-old approval that was swiftly rescinded. It cannot be that when thalidomide was removed from the Canadian market, with much fanfare, it could still have been considered as having been “previously approved.” 89 Therefore, the question to ask is not whether the change in scheme negates the previous approval, but instead whether the 1962 withdrawal constituted an altogether nullification of regulatory approval, such that thalidomide could never be considered “previously approved.” At paragraph 41 of his reasons, the judge declines to comment on whether the prior approvals were nullified. He writes: [41] I do not think it necessary to determine, for the purposes of this application for judicial review, whether the withdrawal from the market of KEVADON and TALIMOL amounted to the nullification of Health Canada’s prior approvals of thalidomide. 90 This determination may not have been required for the contextual, purposive approach taken by the judge, however, determining whether it was nullified is paramount for the determination of whether thalidomide remains “previously approved” in the context of the definition of an innovative drug. In my view, the combination of the above legislative history and the manner in which the SAP functions is sufficient evidence to conclude that the steps taken by the Minister and Parliament in 1962 nullified the approval that was once extended to KEVADON and TALIMOL. This conclusion therefore allows data protection to be ex- Celgene Inc. v. Canada (Minister of Health) M. Nadon J.A. 209

tended to thalidomide: the “previously approved” condition in the definition of innovative drug has not been met. 91 Regardless, the judge goes on to use similar rationale in the context of his purposive approach. He is alive to the key issue involving Canadian reference products: the Regulations carve out a specific home for new drugs as acting as the comparator for subsequent generics. The NDS/ANDS scheme reflects these dual roles. The fact that thalidomide was unavailable to serve as a reference product is important as the Re- spondent did not have any other manner of getting its drug approved in Canada. It had no comparator to demonstrate bioequivalence with: it had to start from scratch and create a data set to prove to the Minister that thalidomide was safe and effective. Acknowledging this fact, the judge writes: [42] It is equally clear that safety and effectiveness are the main considerations with respect to a drug approved for public use. This is indeed the position that was taken by the Minister in Teva Canada Limited, above at para 21. Would it then be fair to say that a drug, the approval of which has been withdrawn for safety reasons, should nevertheless be considered as having been previously approved? In my view, such a finding would be entirely perverse. It is apparent that the approvals should never have been granted in view of the absence of data relating to the severe deleterious effects of the drug. This is precisely why KEVADON and TALIMOL could not be considered as “Canadian reference products” for the purpose of an ANDS. Even if these products were not voided but only withdrawn from sale, it remains that Canadians could not benefit from the dis- covery and development of thalidomide unless and until new medicines could be approved on the basis of new information and data demonstrating their safety and efficacy. 92 The paragraph he cites from Teva Canada Ltd. states the following: [21] As for drug identification numbers, no manufacturer may sell a drug in dosage form unless one has been assigned: Regulations at subsection C.01.014(1). A drug identification number is an eight- digit numerical code that identifies drug product characteristics including manufacturer, brand name, medicinal ingredient, strength of the medicinal ingredient, pharmaceutical form, and route of administration. Through the drug identification number, a drug can readily be tracked or recalled in the event of an adverse drug reaction in the population. 93 The Appellant disputes the argument respecting Canadian reference products. At paragraph 47 of her submissions, she argues that whether 210 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

something can serve as a reference product is not important for the definition of an innovative drug, because not all new drugs are innovative drugs. The Appellant goes on to argue, at paragraph 49, that the determination that thalidomide cannot serve as a Canadian reference product is separate from the definition of innovative drug. The Appellant invokes the drug DEXILANT from the case Takeda Canada Inc. v. Canada (Minister of Health), 2011 FC 1444 (F.C.) (Takeda) and suggests that there is no reason that it could not serve as a reference product, despite not receiving data protection. 94 In my respectful opinion, this approach is unhelpful in the instant case. While reference products and innovative drugs are separate definitions within the Regulations, they are necessarily related. Because there was no available drug to serve as a reference, the Respondent had to submit an NDS to obtain approval for thalidomide. Indeed, the Appellant specifically requested it and the Respondent undertook to produce 180 volumes of data in order to satisfy the request. The absence of a reference product supports the view that there is no prior approval, justifies the way in which the Respondent proceeded in this case, and bolsters the rationale for extending data protection.

C. Changes to the Regulatory Framework 95 The manner in which Canada’s regulatory framework has been modified over the past halfcentury was largely precipitated by the thalidomide tragedy itself. The additional criterion of efficacy was introduced in 1963 in a direct response. Still, the changes in the regulatory process that stemmed from that watershed moment, and further modifications in the intervening years, do not negate the approvals that were given under previous legislative schemes, i.e., drugs that were previously approved for use in Canada are not invalidated merely on the changes in regulatory structure or the inclusion of new conditions precedent. The Respondent has consistently suggested that because the 1963 amendment to the Reg- ulations adds the consideration of efficacy before the granting of a regulatory approval, it marks a bright line between previous schemes and the current one and lessens the value of the approval that thalidomide received under the 1955 version of the Regulations. Celgene Inc. v. Canada (Minister of Health) M. Nadon J.A. 211

96 The Appellant submits that the judge correctly dismissed the Respon- dent’s argument to this effect. The Respondent argues, at paragraph 93 of its memorandum, that the judge never actually made this determination: At paragraph 46, he did not make a determination on the point but did acknowledge it as an argument reinforcing the conclusion that the prior approvals should not stand in the way of data protection in this case. This again shows that Justice de Montigny considered a number of factors in applying a purposive interpretation. 97 The “Related Provisions” addendum to the Food and Drug Regula- tions provides the associated SOR/2006-241 in an effort to clarify any questions around the transition or coming into force of the Regulations: 2. Section C.08.004.1 of the Food and Drug Regulations, as it read immediately before the coming into force of these Regulations, applies to a drug in respect of which a notice of compliance was issued before June 17, 2006. 98 In my view, while the judge agreed that the general rule is that prior approvals persist irrespective of subsequent legislative changes, he remained alive to the possibility that thalidomide is worthy of being granted an exception to the general rule. This is clear when he writes: [45] The Minister is no doubt correct that, generally speaking, the ministerial approval to which a legislative or regulatory provision refers, need not have been made under the current version of that provision. Since there is nothing in the definition of “innovative drug” to suggest that an approval made under an earlier version of the Regula- tions cannot come within the meaning of “approved”, all that matters should therefore be that the Minister approved the drug, based on the requirements of the regulatory framework in effect at the time of the determination. [46] It is not entirely clear, however, how far this rule should apply when prior approval has been given pursuant to a scheme that has been substantively and significantly modified over the years. Be that as it may, I am of the view that it is, at the very least, an argument reinforcing the conclusion that prior approvals of KEVADON and TALIMOL should not stand in the way of data protection for a later approved product. Submissions filed post-1963 necessarily include new and more extensive data, including data relating to efficacy, as compared to data filed in a pre-1963 submission. This, combined with the fact that 1) prior approval for thalidomide was short-lived and should never have been given at the time, 2) this new drug was effectively banned until Celgene came up with its NDS for THALOMID, and 3) approval was granted for Celgene’s product on 212 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

the basis of completely new studies and data, militate in favour of a declaration that THALOMID is an “innovative drug” and eligible for listing on the Register maintained pursuant to the DPR. 99 The judge’s purposive interpretation is helpful, and concurrent in result, but is not determinative for the disposition of this appeal. The result arrived at by the judge can be affirmed simply with reference to the meaning of “previously approved” in the definition of innovative drug, the manner in which thalidomide has been treated under the SAP, and the jurisprudence of this Court in Teva. The withdrawal of the previous approval, in my view, is sufficient to allow THALOMID to receive data protection in accordance with the Regulations. 100 Finally, it should be noted that, on appeal, the Appellant repeatedly raised the argument that allowing the Respondent data protection for THALOMID would set a dangerous precedent, opening the floodgates to any number of other drug companies that would try to attain data protection for drugs with an inconsistent Canadian approval history. This would in turn disadvantage the generic drug industry and the consumer by allowing innovative drug companies to unfairly extend data protection over drugs that had been approved under the former regime. It could, the Appellant argued, have the effect of unduly extending patent rights by employing data protection as an alternative means of granting a monop- oly to an innovator. 101 With respect, the fact situation of thalidomide is highly unusual and unlikely to reoccur. It was the only therapeutic drug listed in Schedule H (later Schedule F) of the Act and has a tragic history associated with no other drug. The only other drugs that received similar legislative treatment were street drugs (e.g., LSD, DET, DMT) that would never have received regulatory approval. Any precedent set by this decision is necessarily narrow in scope and does not generate these slippery slope concerns.

Disposition 102 For all of these reasons, I would dismiss the appeal with costs. Appeal allowed. CEP v. Canada (Minister of Canadian Heritage) 213

[Indexed as: CEP v. Canada (Minister of Canadian Heritage and Official Languages)] Communications, Energy and Paperworkers Union of Canada, Applicant and The Minister of Canadian Heritage and Official Languages as Represented by the Attorney General of Canada, Respondent Federal Court Docket: T-685-11 2013 FC 34 Judith A. Snider J. Heard: January 8, 2013 Judgment: January 15, 2013 Administrative law –––– Prerequisites to judicial review — Miscellane- ous –––– Applicant union represented employees of C Co. publishing divisions — C Co.’s newspaper assets were acquired by P Co. — After acquisition, union wrote letter to respondent Minister of Canadian Heritage and Official Languages, in which union made series of allegations about control in fact of P Co. — Union alleged that control in fact of P Co. was held by non-Canadians and claimed that review of acquisition by P Co. ought to have been conducted by respondent under Investment Canada Act — In brief, one-page letter, respondent replied by acknowledging receipt of union’s letter, emphasizing privileged nature of any information concerning specific investments and providing brief explanation of how provisions of Act operated — Respondent did not reply directly to two specific requests advanced by union, nor did he provide reasons for not doing so — Union brought application for judicial review — Application dismissed — There was no decision or matter that could be challenged by way of judicial review, as respondent’s letter was not “matter” within meaning of s. 18.1 of Federal Courts Act — Respondent’s letter, in no way, reflected intention to communicate policy or interpretation of Act — There was not shred of evidence to support that letter was intended to convey such policy or interpretation. Commercial law –––– Trade and commerce — Competition and combines legislation — Investigation and prosecution — Judicial review — Miscella- neous issues –––– Investment Canada Act — Applicant union represented employees of C Co. publishing divisions — C Co.’s newspaper assets were acquired by P Co. — After acquisition, union wrote letter to respondent Minister of Canadian Heritage and Official Languages, in which union made series of allegations about control in fact of P Co. — Union alleged that control in fact of P Co. was held by non-Canadians and claimed that review of acquisition by P 214 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Co. ought to have been conducted by respondent under Investment Canada Act — In brief, one-page letter, respondent replied by acknowledging receipt of union’s letter, emphasizing privileged nature of any information concerning specific investments and providing brief explanation of how provisions of Act operated — Union brought application for judicial review — Application dismissed — Minister did not have duty to carry out review of P Co.’s acquisition in response to third party request to do so from union — There was nothing in Act, and particularly in s. 26(2.1), that provided for third party complaint or request to review transaction — Parliament did not intend to allow third party to trigger review of acquisition in these circumstances. Administrative law –––– Prerequisites to judicial review — Nature of tribunal under review — Crown — Ministers of Crown –––– Ministerial discretion — Applicant union represented employees of C Co. publishing divisions — C Co.’s newspaper assets were acquired by P Co. — After acquisition, union wrote letter to respondent Minister of Canadian Heritage and Official Lan- guages, in which union made series of allegations about control in fact of P Co. — Union alleged that control in fact of P Co. was held by non-Canadians and claimed that review of acquisition by P Co. ought to have been conducted by respondent under Investment Canada Act — In brief, one-page letter, respondent replied by acknowledging receipt of union’s letter, emphasizing privileged nature of any information concerning specific investments and providing brief explanation of how provisions of Act operated — Union brought application for judicial review — Application dismissed — There was no decision or matter that could be challenged by way of judicial review, as respondent’s letter was not “matter” within meaning of s. 18.1 of Federal Courts Act — Respondent’s discretion was not untrammelled and there was no evidence that his discretion was or would have been exercised on basis of considerations irrelevant to purpose of Act. Cases considered by Judith A. Snider J.: Distribution Canada Inc. v. Minister of National Revenue (1993), 1993 Car- swellNat 803, 10 Admin. L.R. (2d) 44, (sub nom. Distribution Canada Inc. v. M.N.R.) [1993] 2 F.C. 26, 99 D.L.R. (4th) 440, 149 N.R. 152, 60 F.T.R. 160 (note), (sub nom. Distribution Canada Inc. v. Deputy Minister of National Revenue) 11 T.T.R. 186, 1993 CarswellNat 1305, [1993] F.C.J. No. 9 (Fed. C.A.) — considered Distribution Canada Inc. v. Minister of National Revenue (1993), [1993] 2 S.C.R. vii, 102 D.L.R. (4th) vii, 158 N.R. 400n, 12 Admin. L.R. (2d) 280n, [1993] S.C.C.A. No. 94 (S.C.C.) — referred to Krause v. Canada (1999), 19 C.C.P.B. 183, 236 N.R. 317, 1999 CarswellNat 211, 1999 CarswellNat 1850, 160 F.T.R. 214 (note), [1999] 2 F.C. 476, [1999] F.C.J. No. 179 (Fed. C.A.) — considered CEP v. Canada (Minister of Canadian Heritage) 215

May v. CBC/Radio Canada (2011), 2011 FCA 130, 2011 CarswellNat 1058, 420 N.R. 23, 231 C.R.R. (2d) 369, [2011] F.C.J. No. 519 (F.C.A.) — followed Popal v. Canada (Minister of Citizenship & Immigration) (2000), [2000] 3 F.C. 532, 2000 CarswellNat 3417, 2000 CarswellNat 459, 184 F.T.R. 161, [2000] F.C.J. No. 352 (Fed. T.D.) — referred to Roncarelli v. Duplessis (1959), 1959 CarswellQue 37, [1959] S.C.R. 121, 16 D.L.R. (2d) 689, [1959] S.C.J. No. 1 (S.C.C.) — distinguished Statutes considered: Canada Evidence Act, R.S.C. 1985, c. C-5 Generally — referred to Customs Tariff, R.S.C. 1985, c. C-54 Generally — referred to Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1 [en. 1990, c. 8, s. 5] — considered s. 18.1(1) [en. 1990, c. 8, s. 5] — considered Foreign Investment Review Act, S.C. 1973-74, c. 46 Generally — referred to Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.) Generally — referred to s. 2 — considered s. 15(a) — considered s. 20 — considered s. 21(1) — considered s. 26 — considered s. 26(1)(a) — considered s. 26(2.1) [en. 1993, c. 35, s. 4] — considered s. 37 — considered Regulations considered: Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.) Investment Canada Regulations, SOR/85-611 Sched. IV — referred to Words and phrases considered matter A“matter” as contemplated by s. 18.1(1) [of the Federal Courts Act] encompasses more than decisions or orders rendered by federal bodies.

APPLICATION for judicial review from Minister’s letter.

Mr. Joseph Arvay, Ms. Alison Latimer, for Applicant Mr. Harry Wruck, Ms. Maria Molloy, for Respondent 216 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Judith A. Snider J.: I. Introduction 1 Until July 13, 2010, CanWest Global Communications Corp. (CanWest) was the owner of significant newspaper publishing assets. As of July 13, 2010, those newspaper assets were acquired by Postmedia Network Canada Corp. (Postmedia). 2 The Applicant in this case is the Communications, Energy and Paperworkers Union of Canada (CEP or the Union), which represents 1800 employees of the former CanWest publishing divisions. While acknowledging that the majority of the voting shares of Postmedia are held by Canadian entities, CEP alleges that control in fact of Postmedia is held by non-Canadians. As such, CEP believes that a review of the acquisition by Postmedia ought to have been conducted by the Respondent, the Minister of Canadian Heritage and Official Languages (the Minister), pursuant to the relevant provisions of the Investment Canada Act, RSC 1985, c 28 (1st Supp) [the Act or ICA] to determine whether the acquisition was likely to be of net benefit to Canada. 3 By letter dated February 24, 2011, CEP wrote to the Minister (the CEP Request) making a series of allegations about the control in fact of Postmedia and including an unsigned copy of the Asset Purchase Agree- ment, pursuant to which the newspaper assets of CanWest were transferred. In its letter, CEP asked the Minister to: (a) find that Postmedia “is in fact controlled by its non-Canadian shareholders and creditors”; and (b) satisfy himself that the acquisition was of net benefit to Canada (which CEP asserts it is not, taking the position that undertakings by Postmedia are necessary to protect Canadian cultural and economic interests). 4 In a brief, one-page letter dated March 22, 2011 (the Response Let- ter), the Minister responded to the CEP Request. The Minister acknowledged the receipt of the CEP Request, thanked CEP for “taking the time to share the CEP’s concerns”, and provided a brief general explanation of how the provisions of the ICA operate. The Minister did not respond directly to the two specific requests advanced by CEP; nor did he provide any direct reasons for not doing so. 5 CEP argues that the Minister has failed to exercise his mandate under the ICA. Further, the Response Letter is a “matter” or “decision”, in the sense of s. 18.1 of the Federal Courts Act, RSC 1985, c F-7 and hence CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider J. 217

amenable to intervention by this Court. Specifically, CEP asks that Court overturn the alleged “decision”, return the CEP Request to the Minister with directions that the Minister: [D]etermine, in accordance with s. 26(2.1) of the Investment Canada Act, and any further directions of the Court, whether he is satisfied that the entity which acquired the CanWest newspaper publishing assets is controlled in fact by one or more non-Canadians and, if so satisfied, review the acquisition for whether it is likely to be of net benefit to Canada, having regard to the factors set out in s. 20 of the Investment Canada Act.

II. Issues 6 The issues before me are the following: 1. Was the Minister’s Response Letter a “decision” or “matter” within the meaning of s. 18.1 of the Federal Courts Act and thus properly the subject of judicial review? 2. Upon request of a third party, does the Minister have a duty to review an acquisition to determine whether an entity is controlled in fact by one or more non-Canadians? 3. Does the inability of the CEP to bring a judicial review application of the Response Letter result in an untrammelled discretion in the hands of the Minister, contrary to the teachings of the Supreme Court of Canada in Roncarelli v. Duplessis, [1959] S.C.R. 121 (S.C.C.), at 130-145, (1959), 16 D.L.R. (2d) 689 (S.C.C.) [Roncarelli]? 7 For the reasons that follow, I have concluded that the Minister’s Re- sponse is not a “matter” within the meaning of s. 18.1 of the Federal Courts Act and, in any event, the Minister has no duty to respond to third party requests for review. Thus, there is no foundation to this application for judicial review and it must be dismissed.

III. Admissibility of Murdoch Affidavits 8 A preliminary issue was raised by the Minister with respect to the admissibility of portions of the Affidavits #1 and #2 of Mr. Peter Mur- doch, Vice President of Media of CEP (the Murdoch Affidavits). The Minister asks that the Murdoch Affidavits be struck. The impugned sections of the Affidavits consist of attached documents which purport to provide background facts to the Postmedia acquisition and ownership. The only purpose of the impugned documents appears to be to substanti- 218 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

ate the CEP’s submission on whether control in fact of Postmedia is non- Canadian. Except for the Asset Purchase Agreement, none of these documents were provided to the Minister. 9 The impugned portions of the Affidavits are not matters within the knowledge of Mr. Murdoch, they are not “business records” within the meaning of the Canada Evidence Act, RSC 1985, c C-5 or at common law and they were not (except for the Asset Purchase Agreement) before the Minister. Not only are these documents inadmissible hearsay, they are of no assistance to me in this judicial review. This is because, as acknowledged by CEP, I am not being asked to rule on the merits of whether the acquisition of the CanWest newspaper assets resulted in control in fact by one or more non-Canadians. Quite simply, the Murdoch Affidavits, in their entirety, are irrelevant to the questions before me. They will be struck.

IV. Statutory Framework 10 To situate this application for judicial review, I begin with a brief overview of the relevant provisions of the ICA. 11 The ICA, enacted in 1985, replaced the Foreign Investment Review Act, SC 1973-74, c 46 [FIRA]. As described by the Minister. The ICA is the primary mechanism for reviewing foreign investments in Canada. Consistent with the purpose of the ICA as set out in s. 2 “to provide for the review of significant investments in Canada by non-Canadians in a manner that encourages investment, economic growth and employment opportunities in Canada”, the ICA provides for review of businesses — even those which will be controlled by non-Canadians — in limited circumstances. 12 Cultural business activities are recognized as having special status under the legislative scheme. Section 15 provides that an investment that would not otherwise be reviewable is reviewable if: (a) It falls within a prescribed specific type of business activity that, in the opinion of the Governor in Council, is related to Canada’s cultural heritage or national identity (a) il vise un type précis d’activité commerciale désigné par règle- ment et qui, de l’avis du gouverneur en conseil, est lié au patrimoine culturel du Canada ou a` l’identité nationale 13 The “prescribed” business activities to which s. 15(a) applies are set out in Schedule IV to the Investment Canada Regulations, SOR/85-611. Of specific relevance to this case, the “publication, distribution or sale of CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider J. 219

books, magazines, periodicals or newspapers in print or machine reada- ble form” is a prescribed business activity. All parties agree that the acquisition of the CanWest newspaper assets was an acquisition of a “prescribed business activity” for purposes of the ICA. 14 In 1999, the authority to review investments related to cultural businesses prescribed under s. 15(a) was transferred to the Minister from the Minister of Industry (see Order Transferring to the Minister of Canadian Heritage the Power, Duties and Functions of the Minister of Industry, SI/2009-99). 15 The tests for determining the Canadian status of an entity are set out in s. 26 of the ICA. Pursuant to s. 26(1)(a), a Canadian-controlled entity is one where “one Canadian or two or more members of a voting group who are Canadians own a majority of the voting interests of an entity”. The CEP does not dispute that Postmedia meets this definition of control. In other words, Postmedia (at least at all relevant times for this judicial review) qualified as a Canadian-controlled entity under s. 26(1)(a). How- ever, this is not the end of any potential review of the Postmedia acquisition (or any other acquisition of control of a cultural business). The Act recognizes the difference between the notions of “legal control”, pursuant to s. 26(1)(a), and “control in fact”, pursuant to s. 26(2.1). Section 26(2.1), a provision added to the ICA in 1993, provides that: Where an entity that carries on or proposes to carry on a specific type of business activity that is prescribed for the purposes of paragraph 15(a) qualifies as a Canadiancontrolled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity where, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more non- Canadians. Le ministre peut, après examen des renseignements et des el´´ ements de preuve qui soit lui sont fournis par ou pour une unité exer¸cant ou projetant d’exercer un type d’activité désigné par règlement aux fins de l’alinéa 15a), soit sont par ailleurs mis a` sa disposition ou a` celle du directeur, décider que l’unité, même si elle remplit les conditions mentionnées aux paragraphes (1) ou (2), n’est pas sous contrôle canadien s’il estime que celle-ci est contrôlée en fait par un ou plusieurs non-Canadiens. 16 The bottom line is that, if the Minister were to determine that Postmedia is controlled “in fact” by non-Canadians, the Minister would 220 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

be obliged, through examination of the factors set out in s. 20 of the ICA, to satisfy himself that “the investment is likely to be of net benefit to Canada” (ICA, s. 21(1)).

V. Analysis A. Issue #1: Is the Response Letter a “decision”? 17 CEP argues that the Minister’s Response was a decision. In the CEP’s view, the letter was a decision by the Minister to refuse to exercise his discretion, under s. 26(2.1) of the ICA, to review the Postmedia acquisition. 18 The Union also submits that the actions of the Minister’s delegates, as reflected in the Affidavits of Ms. Marston-Shmelzer, Deputy Director of Investments and Director, Cultural Sector Investment Review (CSIR), demonstrate that a decision not to review the Postmedia acquisition was actually made. 19 The Minister submits that the Response was simply an acknowledgment of receipt of the information submitted by CEP or a courtesy letter and not, therefore, justiciable. I prefer the Minister’s characterization of the letter.

(1) General Principles 20 For judicial review to be available this application must qualify as a “matter” that may be reviewed under s. 18.1(1) of the Federal Courts Act. 21 A “matter” as contemplated by s. 18.1(1) encompasses more than decisions or orders rendered by federal bodies. A recent judicial explanation of s. 18.1 is contained in the Court of Appeal decision in May v. CBC/Radio Canada, 2011 FCA 130, 420 N.R. 23 (F.C.A.), a case involving a judicial review of a Bulletin issued by the Canadian Radio- television and Telecommunications Commission. In rejecting the applicant’s argument that the Bulletin was reviewable, the court provided the following general guidance (at para 10): ... While it is true that, normally, judicial review applications before this Court seek a review of decisions of federal bodies, it is well established in the jurisprudence that subsection 18.1(1) permits an application for judicial review “by anyone directly affected by the matter in respect of which relief is sought”. The word “matter” embraces more than a mere decision or order of a federal body, but applies to anything in respect of which relief may be sought: Krause v. Canada, CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider J. 221

[1999] 2 F.C. 476 at 491 (F.C.A.). Ongoing policies that are unlawful or unconstitutional may be challenged at any time by way of an application for judicial review seeking, for instance, the remedy of a declaratory judgment: Sweet v. Canada (1999), 249 N.R. 17. 22 Just because a document is called an acknowledgment or courtesy letter does not necessarily protect it from judicial review. Thus, I must carefully examine the Response Letter, within its factual and statutory context.

(2) The Response Letter 23 I begin by reviewing the Response Letter. The entire body of the Re- sponse Letter is as follows: Thank you for your letter of February 24, 2011, on behalf of the Communications, Energy and Paperworkers (CEP) Union of Canada, regarding the acquisition of the newspaper publishing assets of Canwest Global Communications Corporation by Postmedia Net- work Canada Corporation. I appreciate you taking the time to share the CEP’s concerns with me. As you may already know, detailed information concerning the treatment of specific investments under the Investment Canada Act is privileged and cannot be disclosed to third parties. However, I am pleased to provide you with information on the scope of the Act and how it is applied. In the cultural sector, the Investment Canada Act applies to non- Canadians establishing new cultural businesses in Canada or acquiring control of existing Canadian cultural businesses. Non-Canadians are required to obtain the approval of the Minister of Canadian Heri- tage prior to directly acquiring any Canadian cultural business, including newspaper publishing businesses, with an asset value of $5 million or greater. However, Canadian businesses with non-control- ling foreign partners are not subject to the Act. Please be assured that the Act is consistently applied to foreign investments which fall under its jurisdiction. Investments in Canada’s cultural sector are rigorously monitored to ensure that the Act is respected. Please accept my best wishes. 24 As I read the Response Letter, there are three important notions contained in the letter. First, the Minister acknowledges receipt of the CEP Request. Secondly, the Minister emphasizes the privileged nature of any information concerning specific investments. Thirdly, the Minister ex- 222 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

plains that, in general, acquisitions by non-Canadians require approval of the Minister while investments by “Canadian businesses with non-con- trolling foreign partners are not subject to the Act”. 25 The CEP takes the position that the letter shows that the Minister mis- unders tands his powers under the Act. The basis of this argument appears to be the omission from the letter of any reference to s. 26(2.1) of the Act which permits the Minister to exercise discretion to review a transaction where control in fact may be held by non-Canadians. I do not find this omission to be material. The Minister was providing a general overview, in an attempt to be helpful, and cannot be expected to provide a detailed legal opinion on all of the provisions of the Act. There is nothing in the letter that is incorrect. The CEP’s attempt to read more into this letter is not persuasive. 26 The CEP also submits that: If the letter communicated a departmental or ministerial policy or interpretation of the Act which precluded consideration of CEP’s request on its merits, then the letter is subject to judicial review. 27 The response to this argument of the Union is that the Response Let- ter, in no way, communicates such a policy or interpretation of the Act. Not only does the Response Letter not reflect this intention on its face, there is not a shred of evidence to support that the letter was intended to convey such a policy or interpretation. 28 The letter is, in my view, simply an acknowledgement of the CEP Request. It does not reflect any decision by the Minister. On its face, this is not a matter as contemplated by s. 18.1(1) of the Federal Courts Act.

(3) Actions of CSIR 29 Even though the Response Letter is, on its face, nothing more than a courtesy response to the Union, it may be that the context of the corre- spondence establishes that a decision had been made. This is the second argument of the CEP. 30 The CEP argues that the record, as a whole, demonstrates that the Minister (or, more accurately, the officials in CSIR) had made a decision that no review of the Postmedia acquisition would be carried out. 31 With respect to this argument, I first observe that the Response Letter was issued less than one month after the CEP Request. This immediately gives rise to a reasonable argument that the Response Letter could not possibly have been a decision on the merits of the CEP Request, given CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider J. 223

how long it would take to review the allegations raised by the Union. This was acknowledged by the CEP during oral submissions. Thus, the CEP’s second argument — that the functionaries in the CSIR had actually made a final determination that the acquisition would not be reviewed — is difficult to accept. 32 In making this argument, the CEP relies on statements contained in the Marston-Shmelzer Affidavits. In her affidavits, Ms. Marston- Shmelzer describes the general process followed by CSIR in reviewing investments that fall with the mandate of Minister. As described by Ms. Marston-Shmelzer: To seek any decision by the Minister of Canadian Heritage under the Act, members of CSIR staff are required to prepare a briefing note to the Minister of Canadian Heritage for the signature of the Director of Investments. 33 Ms. Marston-Shmelzer also referred to the CEP Request and how it was handled by CSIR. While CSIR provided input to the Minister’s office, the sworn statement of Ms. Marston-Shmelzer is that, “At no time did CSIR take any steps to seek a decision from the Minister of Canadian Heritage in response to the [CEP Request]”. The Union appears to take the view that this statement contains an acknowledgment that CSIR officials decided not to take action on the CEP information. This is an unsus- tainable interpretation of the evidence of Ms. Marston-Shmelzer. All that she states is that no steps were taken to ask the Minister to make a decision. This is a far cry from deciding that there is no merit in the CEP Request. There is nothing in the affidavits to suggest that a decision to review the Postmedia acquisition was not carried out or would not be conducted. I also note that the CEP takes this interpretation of the sworn evidence of Ms. Marston-Shmelzer without having cross-examined her on her affidavits to clarify any of her statements. 34 In sum, I do not accept the CEP argument that the Minister, through his officials in CSIR, had made a decision not to act on the CEP Request.

B. Issue #2: Does the Minister have a duty to act on the CEP Request? 35 The question of whether the Minister made a reviewable decision is linked to the question of whether the Minister is under any duty to carry out a review of the Postmedia acquisition in response to a request to do so from the Union. Stated in different terms, can the request of a third party trigger a s. 26(2.1) review? 224 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

36 If there is such a duty, it could follow that the CEP Request should have been acted on by the Minister and his failure to do so would raise a justiciable issue. This would be consistent with comments contained in Krause v. Canada, [1999] 2 F.C. 476 (Fed. C.A.), at 491, (1999), 236 N.R. 317 (Fed. C.A.) (see also Popal v. Canada (Minister of Citizenship & Immigration), [2000] 3 F.C. 532 (Fed. T.D.) at para 30, [2000] F.C.J. No. 352 (Fed. T.D.)) to the effect that anything in respect of which relief may be sought may qualify as a reviewable “matter”. Thus, if I conclude, as submitted by the CEP, that there was a duty on the Minister to respond, the failure to do so may be reviewable since, arguably, there would be a remedy (such as mandamus or certiorari) available to the Union. In my view, there is no such duty. 37 The main problem for the CEP is that there is nothing in s. 26(2.1) or anywhere in the ICA that provides for a third party complaint or request to review a transaction. Parliament did not intend to allow a third party to trigger a review of an acquisition in these circumstances. Had Parliament so intended, explicit language to that effect would have been included. Where the intention was to permit a process, the Act so provides; see, for example, s. 37 which provides for a process of obtaining an opinion of the Minister in certain circumstances. 38 The broad discretion of the Minister to commence a review under the ICA is similar to the discretion of the Minister of National Revenue considered by the Court of Appeal in Distribution Canada Inc. v. Minister of National Revenue, [1993] 2 F.C. 26 (Fed. C.A.), at 41, (1993), 99 D.L.R. (4th) 440 (Fed. C.A.), leave to appeal to the SCC refused, [1993] S.C.C.A. No. 94 (S.C.C.); [1993] 2 S.C.R. vii (S.C.C.). In that case, a group of grocers was asking the Minister of National Revenue to enforce certain provisions of the Customs Tariff, RSC 1985, c. C-54 against persons buying goods in the United States to bring to Canada. In concluding that the Minister of National Revenue had not failed in his duties under the Customs Tariff, the Court of Appeal stated that: Only he who is charged with such public duty can determine how to utilize his resources. This is not a case where the Minister has turned his back on his duties, or where negligence or bad faith has been demonstrated. It is a case where the Minister has established difficul- ties in implementation and where he enjoys a discretion with which the law will not interfere. [Emphasis added.] CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider J. 225

39 In the case before me, the Minister has a similarly broad discretion under s. 26(2.1). The Minister is required to apply a complex and important statutory scheme to foreign investments in Canadian cultural activities. There is no evidence before me that the Minister has “turned his back on his duties” or that this is a situation “where negligence or bad faith has been demonstrated”. Indeed, the evidence of Ms. Marston- Shmelzer is that the Minister, through the CSIR, takes great care to review all information before it in assessing whether a review under s. 26(2.1) is warranted. Moreover, given the strong statutory requirements for confidentiality in such matters, the Minister’s ability to exercise a broad discretion is even more important. In these circumstances, the court should not interfere.

C. Issue #3: Does the Minister’s discretion amount to absolute or untrammelled discretion? 40 The final argument of the CEP is that refusing to allow a judicial review of the Minister’s decision would amount to immunizing the Min- ister from judicial review, contrary to the teachings of Roncarelli, above. Accordingly, the CEP submits, the Minister’s exercise of (or failure to exercise) his discretion in response to the CEP Request should be reviewable by this Court. I do not agree that this is a situation to which the principles espoused in Roncarelli apply. 41 I agree with the CEP that absolute or untrammelled discretion, which may be exercised on the basis of any consideration which the decision- maker chooses, does not exist. In Roncarelli, above at 140, Justice Rand, concurring with the majority of the Supreme Court, stated that: ... [N]o legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute ... “Discretion” necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate... 42 Justice Rand opined that statutory discretion must be exercised on the basis of relevant factors, informed by the statutory scheme. According to Justice Rand, the irrelevant consideration taken into account in the cancellation of the applicant’s liquor licence in Roncarelli was the applicant’s exercise of his “unchallengeable right” to post bail for Jehovah’s Witnesses. The scope of the discretion under the statutory scheme was informed by the purpose of the statute, relating to the sale of liquor in a restaurant (Roncarelli, above at 141). Just as the colour of a person’s hair 226 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

or the province in which a person is born is irrelevant to the sale of liquor in a restaurant, neither was Mr. Roncarelli’s action to post bail (Ron- carelli, above at 140). 43 Unlike Roncarelli, there is no evidence before me of any irrelevant considerations taken into account by CSIR or the Minister. Although the Union asserts that the request to review was ignored because it was made by a third party, who has a right to submit information, there is no evidence that this occurred. By contrast, the reason for the cancellation of Mr. Roncarelli’s liquor licence was “free from doubt” in view of the testimony of Mr. Duplessis and Mr. Archambault, general manager of the Liquor Commission (Roncarelli, above at 133). 44 In fact, the Response Letter and Ms. Marston-Shmelzer’s unchal- lenged affidavit evidence, viewed in light of the purpose of the ICA, demonstrate that only relevant considerations were taken into account. The purpose of the ICA is described in s. 2: 2. Recognizing that increased capital and technology benefits Can- ada, and recognizing the importance of protecting national security, the purposes of this Act are to provide for the review of significant investments in Canada by non-Canadians in a manner that encourages investment, economic growth and employment opportunities in Canada and to provide for the review of investments in Canada by non-Canadians that could be injurious to national security. 2. Etant´ donné les avantages que retire le Canada d’une augmentation du capital et de l’essor de la technologie et compte tenu de l’importance de préserver la sécurité nationale, la présente loi vise a` instituer un mécanisme d’examen des investissements importants ef- fectués au Canada par des non-Canadiens de manière a` encourager les investissements au Canada et a` contribuer a` la croissance de l’économie et a` la création d’emplois, de même qu’un mécanisme d’examen des investissements effectués au Canada par des non- Canadiens et susceptibles de porter atteinte a` la sécurité nationale. 45 All of the considerations cited by the Minister in the Response Letter and Ms. Marston-Shmelzer in her affidavits are relevant to the statutory scheme and its function. The statutory scheme of the ICA demonstrates the importance of maintaining confidentiality with respect to the review of particular businesses; publicity could lead to consequences detrimental to the business, to foreign investment in Canada and to Canadians who benefit from this foreign investment. Further, the explanation of the scope of the Minister’s jurisdiction, while quite general, is accurate and is not inconsistent with the purpose of the ICA. Most importantly, Ms. CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider J. 227

Marston-Shmelzer’s evidence explains the procedures that are followed by CSIR with respect to submissions by third parties. These procedures demonstrate that third party submissions are reviewed to enable proper administration of the Act’s objectives, and are not ignored on the basis of who provided them. 46 Contrary to the submissions of the CEP, the Minister is not immu- nized from judicial review. The Minister’s discretion under the ICA is not absolute; the court may intervene if factors irrelevant to the purpose of the ICA and the context in which it is administered were considered. However, when a breach of the rule of law is not demonstrated on the facts, and any discretion appears to have been exercised on the basis of relevant factors, it is not the role of the court to intervene.

VI. Conclusion 47 In conclusion, my key findings are that: 1. The Response Letter was an acknowledgment or courtesy letter that was sent solely for informational purposes. It does not constitute a refusal to make a decision. Nor does the record show that a decision not to act on the CEP Request was made. 2. Section 26(2.1) does not impose a duty on the Minister to conduct a review upon the request of a third party. 3. The discretion of the Minister is not untrammelled and there is no evidence that his discretion was or would be exercised on the basis of considerations irrelevant to the purpose of the ICA. 48 For these reasons, I conclude that this application for judicial review should be dismissed on the basis that there is no “decision” or “matter” that can be challenged by way of judicial review. 49 The Minister is entitled to his costs and requests a lump sum of $10,000. Both parties accepted that the sum of $10,000 in costs would be appropriate in this case. In my view, $10,000 (inclusive of taxes and disbursements) is a reasonable assessment of costs for a matter of this degree of complexity.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. the Application for Judicial Review is dismissed; and 2. affidavits #1 and #2 of Mr. Peter Murdoch are struck from the record; and 228 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

3. costs in the amount of $10,000, inclusive of disbursements and taxes, are awarded to the Respondent.

Judith A. Snider, J.:

[TRADUCTION FRANCAISE ¸ CERTIFIEE,´ NON REVIS´ EE]´

I. Introduction 1 Jusqu’au 13 juillet 2010, CanWest Global Communications Corp. (CanWest) etait´ propriétaire d’importants actifs dans le secteur de la publication de journaux. Le 13 juillet 2010, ces actifs ont et´´ e acquis par Postmedia Network Canada Corp. (Postmedia). 2 Le demandeur, le Syndicat canadien des communications, de l’énergie et du papier (le SCEP ou le Syndicat), représente 1 800 em- ployés de ce qui avait jusque-là et´´ e les divisions de l’édition de CanWest. Tout en reconnaissant que la majorité des actions a` droit de vote de Postmedia est aux mains d’unités canadiennes, le SCEP affirme que Postmedia est contrôlée en fait par des non-Canadiens. Le SCEP estime que, cela etant,´ le défendeur, ministre du Patrimoine canadien et des Langues officielles (le ministre) aurait dû mener l’examen prévu par les dispositions pertinentes de la Loi sur Investissement Canada, LRC 1985, c 28 (1er suppl) (la LIC) afin de décider si l’acquisition en question allait vraisemblablement etreˆ a` l’avantage net du Canada. 3 Le SCEP a, dans une lettre en date du 24 février 2011 (la demande du SCEP) formulé un certain nombre d’allégations concernant le contrôle de fait exercé sur Postmedia, joignant un exemplaire, non signé, de la Con- vention d’achat d’actifs en vertu de laquelle avaient et´´ e cédés les actifs que CanWest possédait dans le secteur de la publication de journaux. Dans sa lettre, le SCEP demandait au ministre: a) de conclure que Postmedia [TRADUCTION] « est en fait con- trôlée par ses créanciers et actionnaires non canadiens »; b) de s’assurer que l’acquisition des actifs en question etait´ a` l’avantage net du Canada (ce qui, selon le SCEP, n’est pas le cas, le Syndicat estimant qu’il y aurait lieu pour Postmedia de prendre les engagements qu’exige la protection des intérêts culturels et economiques´ du Canada). 4 Par une lettre concise d’une page, datée du 22 mars 2011 (la lettre de réponse), le ministre a répondu a` la demande du SCEP. Le ministre a accusé réception de la demande du SCEP, remercié le SCEP [TRADUC- CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider, J. 229

TION] « d’avoir pris le temps de lui faire part de ses préoccupations », et fourni une explication brève et générale du fonctionnement de la LIC. Le ministre n’a pas répondu de manière directe aux deux demandes précises formulées par le SCEP et n’a donné aucune explication du fait qu’il n’y répondait pas. 5 Le SCEP affirme que le ministre n’a pas exécuté le mandat que lui confère la LIC. En outre, le Syndicat voit dans la lettre de réponse une « décision » ou un « objet » au sens de l’article 18.1 de la Loi sur les Cours fédérales, LRC 1985, c F-7, estimant que cette lettre se prête par conséquent a` l’intervention de la Cour. Plus précisément, le SCEP demande a` la Cour d’infirmer la prétendue « décision », et de renvoyer la demande du SCEP au ministre en demandant a` celui-ci: [TRADUCTION] de décider, conformément au paragraphe 26(2.1) de la Loi sur Investissement Canada et a` toute autre instruction de la Cour, s’il est d’avis que l’unité qui a acquis les actifs de CanWest dans le secteur de la publication de journaux est contrôlée en fait par un ou plusieurs non-Canadiens et, s’il est effectivement de cet avis, de procéder a` l’examen de l’acquisition en question afin de voir si ce rachat est vraisemblablement a` l’avantage net du Canada compte tenu des facteurs enum´´ erés a` l’article 20 de la Loi sur Investissement Canada.

II. Les questions en litige 6 Voici les questions qu’il m’appartient de trancher: 1. La lettre de réponse du ministre est-elle une « décision » ou un « objet » au sens de l’article 18.1 de la Loi sur les Cours fédérales, pouvant a` ce titre faire l’objet d’un contrôle judiciaire? 2. A` la suite d’une demande formulée par un tiers, le ministre est-il dans l’obligation de procéder a` l’examen d’une acquisition afin de décider si une unité est contrôlée en fait par un ou des non- Canadiens? 3. Le fait que le SCEP ne soit pas admis a` demander le contrôle judiciaire de la lettre de réponse aurait-il pour résultat de laisser au ministre un pouvoir discrétionnaire sans entraves, contrairement aux principes dégagés par la Cour suprême du Canada dans l’arrêt Roncarelli c Duplessis, [1959] SCR 121, 16 DLR (2d) 689, aux pages 130-145 (Roncarelli)? 7 Pour les raisons exposées ci-dessous, j’estime que la réponse du ministre n’est pas un « objet » au sens de l’article 18.1 de la Loi sur les 230 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Cours fédérales et que, en tout etat´ de cause, le ministre n’est pas dans l’obligation de répondre aux demandes d’examen emanant´ de tiers. La demande de contrôle judiciaire n’étant par conséquent pas fondée, il y a lieu de la rejeter.

III. Recevabilité des affidavits de M. Murdoch 8 Le ministre a soulevé une question préliminaire concernant la recevabilité de certaines parties des affidavits nº 1 et nº 2 de M. Peter Murdoch, vice-président, Média du SCEP (les affidavits de M. Mur- doch). Le ministre sollicite la radiation de ces affidavits. Les parties de ces affidavits contestées en l’espèce consistent en des documents qui sont joints, affirme-t-on, afin de faire etat´ du contexte de l’acquisition effec- tuée par Postmedia et de soulever la question de savoir a` qui appartient la société. Les documents en question semblent n’avoir pour objet que de renforcer l’argument du SCEP, qui soutient que Postmedia est contrôlée en fait par des non-Canadiens. Hormis la Convention d’achat d’actifs, aucun de ces documents n’a et´´ e fourni au ministre. 9 Les parties des affidavits contestées en l’occurrence ne concernent pas des choses dont M. Murdoch a connaissance, et ne sont, ni au sens de la Loi sur la preuve au Canada, LRC 1985, c C-5, ni selon la common law, des « pièces commerciales ». En outre, hormis la Convention d’achat d’actifs, ces documents n’ont pas et´´ e fournis au ministre. Non seulement les el´´ ements de preuve que représentent ces documents con- stituent du ou¨ı-dire irrecevable, mais ils ne me sont d’aucune utilité dans le cadre de cette demande de contrôle judiciaire. Il en est ainsi, car, comme le SCEP l’a reconnu, il ne m’est pas demandé de me prononcer sur la question de savoir si l’acquisition des actifs de presse de CanWest a abouti a` un contrôle en fait par un ou des non-Canadiens. Les affidavits de M. Murdoch sont, dans leur intégralité, tout simplement dénués de pertinence par rapport aux questions dont je suis saisie. J’ordonne donc leur radiation.

IV. Cadre législatif 10 Afin de situer cette demande de contrôle judiciaire dans son contexte, je commence par un aper¸cu des dispositions pertinentes de la LIC. 11 La LIC, edict´´ ee en 1985, a remplacé la Loi sur l’examen de l’investissement etranger´ , LC 1973-74, c 46 (LEIE), ainsi que l’a rappelé le ministre. La LIC est le principal mécanisme d’examen des investissements etrangers´ au Canada. Conformément a` l’objet de la LIC, tel CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider, J. 231

qu’exposé en son article 2, et qui est d’« instituer un mécanisme d’examen des investissements importants effectués au Canada par des non-Canadiens de manière a` encourager les investissements au Canada et a` contribuer a` la croissance de l’économie et a` la création d’emplois », la LIC prévoit que l’on puisse, dans certaines circonstances précises, procéder a` l’examen d’entreprises, même celles qui seront contrôlées par des non-Canadiens. 12 Le cadre législatif accorde un statut spécial aux activités commerciales culturelles. En application de l’article 15, l’investissement qui ne serait pas normalement sujet a` examen peut faire l’objet d’un examen si: (a) It falls within a prescribed specific type of business activity that, in the opinion of the Governor in Council, is related to Canada’s cultural heritage or national identity a) il vise un type précis d’activité commerciale désigné par règlement et qui, de l’avis du gouverneur en conseil, est lié au patrimoine culturel du Canada ou a` l’identité nationale 13 Les « types précis » d’activités commerciales auxquelles s’applique l’alinéa 15a) sont enum´´ erés a` l’Annexe IV du Règlement sur Investisse- ment Canada, DORS/85-611. En l’espèce, il est pertinent de souligner que « la publication, la distribution ou la vente de livres, de revues, de périodiques ou de journaux, sous forme imprimée ou assimilable par une machine » est un type d’activité commerciale désigné par règlement. Les parties conviennent que l’acquisition des actifs de CanWest dans le secteur de la publication de journaux visait bien, aux fins de la LIC, l’acquisition d’un type « d’activité commerciale désigné par règlement ». 14 En 1999, le pouvoir de procéder a` l’examen d’investissements en rapport avec les types précis d’activités commerciales culturelles désignées par règlement en vertu de l’alinéa 15a) est passé du ministre de l’Industrie au ministre (voir le Décret transférant au ministre du Pa- trimoine canadien les attributions du ministre de l’Industrie, TR/2009- 99). 15 Les critères permettant de décider du statut canadien d’une unité sont enonc´´ es a` l’article 26 de la LIC. Selon l’alinéa 26(1)a), « une unité est sous contrôle canadien si un Canadien ou plusieurs membres d’un groupement de votants qui sont canadiens sont propriétaires de la majorité de ses intérêts avec droit de vote ». Le SCEP ne conteste pas que Postmedia répond a` cette définition de contrôle. Autrement dit, Postmedia (du moins en ce qui concerne les périodes pertinentes aux fins de la demande de contrôle judiciaire) constituait bien, aux termes de 232 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

l’alinéa 26(1)a), une unité sous contrôle canadien. Cependant, un even-´ tuel examen de l’acquisition faite par Postmedia (ou de toute autre prise de contrôle d’une entreprise culturelle) ne s’arrêterait pas là. La LIC dis- tingue le « contrôle en droit », a` l’alinéa 26(1)a), du « contrôle en fait », au paragraphe 26(2.1). Selon le paragraphe 26(2.1), ajouté a` la LIC en 1993: Where an entity that carries on or proposes to carry on a specific type of business activity that is prescribed for the purposes of paragraph 15(a) qualifies as a Canadiancontrolled entity by virtue of subsection (1) or (2), the Minister may nevertheless determine that the entity is not a Canadian-controlled entity where, after considering any information and evidence submitted by or on behalf of the entity or otherwise made available to the Minister or the Director, the Minister is satisfied that the entity is controlled in fact by one or more non- Canadians. Le ministre peut, après examen des renseignements et des el´´ ements de preuve qui soit lui sont fournis par ou pour une unité exer¸cant ou projetant d’exercer un type d’activité désigné par règlement aux fins de l’alinéa 15a), soit sont par ailleurs mis a` sa disposition ou a` celle du directeur, décider que l’unité, même si elle remplit les conditions mentionnées aux paragraphes (1) ou (2), n’est pas sous contrôle canadien s’il estime que celle-ci est contrôlée en fait par un ou plusieurs non-Canadiens. 16 L’essentiel est que, si le ministre venait a` décider que Postmedia est contrôlée « en fait » par des non-Canadiens, il serait tenu, après examen des facteurs enum´´ erés a` l’article 20 de la LIC, de s’assurer que « l’investissement sera vraisemblablement a` l’avantage net du Canada » (LIC, paragraphe 21(1)).

V. Analyse A. Question nº 1: La lettre de réponse constitue-t-elle une « décision »? 17 Pour le SCEP, la réponse du ministre est bien une décision. Le Syndi- cat estime que la lettre en question constitue, de la part du ministre, la décision de refuser d’exercer le pouvoir discrétionnaire, en vertu du paragraphe 26(2.1) de la LIC, de procéder a` l’examen de l’acquisition faite par Postmedia. 18 Le Syndicat affirme par ailleurs que le comportement des délégués du ministre, dont rendent compte les affidavits de Mme Marston-Shmelzer, directrice adjointe, Investissements, et directrice, Examen des investissements dans le secteur culturel (EISC), démontre que la décision de ne pas CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider, J. 233

procéder a` l’examen de l’acquisition faite par Postmedia avait effectivement et´´ e prise. 19 Le ministre fait pour sa part valoir que sa réponse n’était qu’un ac- cusé de réception des renseignements transmis par le SCEP ou une simple lettre de courtoisie et que, a` ce titre, elle n’est pas justiciable. Je préfère sur ce point la définition qu’en donne le ministre.

(1) Principes généraux 20 Pour que la décision puisse faire l’objet d’une demande de contrôle judiciaire, il faut que la décision constitue un « objet » au sens du paragraphe 18.1(1) de la Loi sur les Cours fédérales. 21 Le terme « objet », au sens du paragraphe 18.1(1), ne se limite pas aux décisions ou ordonnances d’un office fédéral. Dans l’arrêt May c CBC/Radio-Canada, 2011 CAF 130, 420 NR 23, affaire concernant le contrôle judiciaire d’un bulletin emis´ par le Conseil de la radiodiffusion et des télécommunications canadiennes, la Cour d’appel fédérale a eu l’occasion de préciser la portée de l’article 18.1(1). Rejetant l’argument de la demanderesse qui soutenait que le bulletin en question pouvait effectivement faire l’objet d’un contrôle judiciaire, la Cour a, au paragraphe 10 de son arrêt, fait l’observation générale suivante: [TRADUCTION] [...] Bien qu’il soit vrai que, normalement, les demandes de contrôle judiciaire portées devant la Cour fédérale concernent les décisions rendues par des organismes fédéraux, il est bien reconnu dans la jurisprudence que le paragraphe 18.1(1) permet a` « quiconque est directement touché par l’objet de la demande » de présenter une demande de contrôle judiciaire. Le mot « objet » englobe davantage qu’une simple décision ou ordonnance d’un organisme fédéral: il s’applique a` tout el´´ ement pouvant faire l’objet d’une demande de réparation: Krause c. Canada, [1999] 2 C.F. 476 (C.A.F.), a` la page 491. A` tout moment, une politique en vigueur qui est entachée d’illégalité ou d’inconstitutionnalité peut etreˆ contestée par le dépôt d’une demande de contrôle judiciaire visant, a` titre de réparation, un jugement déclaratoire par exemple: Sweet c Canada (1999), 249 N.R. 17. 22 Le simple fait qu’un document soit dénommé accusé de réception ou lettre de courtoisie ne le met pas automatiquement a` l’abri du contrôle judiciaire. Il me faut par conséquent examiner attentivement la lettre de réponse, et la situer dans son contexte factuel et juridique. 234 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

(2) La lettre de réponse 23 Commen¸cons par examiner la lettre de réponse, dont voici le texte intégral: [TRADUCTION] Je vous remercie de votre lettre du 24 février 2011, envoyée au nom du Syndicat canadien des communications, de l’énergie et du papier (SCEP) concernant l’acquisition par Postmedia Network Canada Corporation des actifs de Canwest Global Communications Corpora- tion dans le secteur de la publication de journaux. Je suis heureux que vous ayez pris le temps de me faire part des préoccupations eprouv´´ ees a` cet egard´ par le SCEP. Vous savez sans doute que les renseignements détaillés touchant le traitement accordé a` des investissements précis relativement a` la Loi sur Investissement Canada (LIC) sont protégés et ne peuvent par conséquent pas etreˆ divulgués a` des tiers. Par contre, il me fera plaisir de vous préciser quelle est la portée de la LIC et la manière dont elle est appliquée. Dans le secteur culturel, la LIC s’applique aux non-Canadiens créant au Canada de nouvelles entreprises culturelles ou acquérant le con- trôle d’entreprises culturelles canadiennes existantes. Avant d’acquérir directement une entreprise culturelle canadienne, y compris une entreprise du secteur de la publication de journaux, dont la valeur nette des actifs est d’au moins 5 millions de dollars, les non- Canadiens doivent obtenir l’autorisation du ministre du Patrimoine canadien. Les entreprises canadiennes associées a` des partenaires etrangers´ ne contrôlant pas l’entreprise ne sont pas, par contre, as- sujetties aux dispositions de la LIC. Soyez assurés que les dispositions de la LIC sont uniformément ap- pliquées aux investissements etrangers´ qui en relèvent. Les investissements effectués dans le secteur culturel du Canada sont surveillés de près afin que soient respectées les dispositions de la LIC. Veuillez agréer l’expression de mes meilleurs sentiments. 24 Je relève, a` la lecture de la lettre de réponse, trois idées importantes. La première est que le ministre accuse réception de la demande du SCEP. Le ministre insiste en deuxième lieu sur la nature confidentielle des renseignements touchant un investissement précis. Troisièmement, le ministre explique que, de manière générale, les acquisitions faites par des non-Canadiens exigent l’autorisation du ministre, mais que les investissements effectués par des [TRADUCTION] « entreprises canadiennes CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider, J. 235

associées a` des partenaires etrangers´ ne contrôlant pas l’entreprise ne sont pas, par contre, assujettis aux dispositions de la LIC ». 25 Pour le SCEP, la lettre en question montre que le ministre interprète mal les pouvoirs que lui confère la LIC. Cet argument semble fondé sur le fait que, dans sa lettre, le ministre ne mentionne aucunement le paragraphe 26(2.1) de la LIC, qui lui donne le pouvoir discrétionnaire de procéder a` l’examen d’une opération aboutissant a` un contrôle en fait par des non-Canadiens. Cette omission me paraˆıt etreˆ sans importance. Le ministre, voulant etreˆ utile, donnait un aper¸cu général de la question et on ne saurait attendre de lui un avis juridique détaillé sur les diverses dispositions de la LIC. La lettre ne contient rien d’inexact. Le SCEP souhaite en faire dire davantage a` la lettre, mais son effort en ce sens n’est guère convaincant. 26 Le SCEP soutient par ailleurs que: [TRADUCTION] Si elle faisait part d’une politique ministérielle en ce domaine ou d’une interprétation de la LIC empêchant que la demande formulée par le SCEP soit examinée sur le fond, la lettre en question est susceptible de contrôle judiciaire. 27 Ce raisonnement du SCEP se heurte a` l’argument que la lettre de ré- ponse n’est absolument pas l’expression d’une telle politique en ce domaine ou interprétation des dispositions de la LIC. Non seulement est- il manifeste que ce n’était pas là le but de la lettre de réponse, mais il n’y a pas le moindre el´´ ement de preuve qui porte a` penser que cette lettre entendait faire etat´ d’une telle politique ou interprétation. 28 Selon moi, cette lettre est un simple accusé de réception de la demande transmise par le SCEP. Elle ne reflète en rien une décision du ministre. Manifestement, il ne s’agit pas d’un « objet » au sens du paragraphe 18.1(1) de la Loi sur les Cours fédérales.

(3) La conduite d’EISC 29 Même si la lettre en question n’est manifestement qu’une lettre de courtoisie envoyée au Syndicat en réponse a` sa demande, il se pourrait que le contexte dans lequel se situe ce message montre qu’une décision avait effectivement et´´ e prise. C’est là le deuxième argument avancé par le SCEP. 30 Selon le SCEP, il ressort du dossier pris dans son intégralité que le ministre (ou, plus précisément, les fonctionnaires d’EISC) avait décidé de ne pas procéder a` l’examen de l’acquisition effectuée par Postmedia. 236 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

31 Pour ce qui est de cet argument, je commence par noter que la lettre de réponse a et´´ e envoyée moins d’un mois après réception de la demande du SCEP. On peut donc immédiatement et raisonnablement soutenir que la lettre de réponse ne pouvait absolument pas constituer une décision quant au bien-fondé de la demande du SCEP, etant´ donné le temps nécessaire pour etudier´ les allégations avancées par le Syndicat. Le SCEP a, dans sa plaidoirie, reconnu qu’il en est effectivement ainsi. Le second argument avancé par le SCEP, qui affirme que les fonctionnaires d’EISC avaient bel et bien décidé définitivement que l’acquisition en question ne ferait pas l’objet d’un examen — est difficile a` retenir. 32 A` l’appui de cet argument, le SCEP invoque les déclarations con- tenues dans les affidavits de Mme Marston-Shmelzer. Dans ses affidavits, Mme Marston-Shmelzer expose la procédure qu’applique EISC lors de l’examen d’investissements relevant des attributions du ministre. Selon Mme Marston-Shmelzer: [TRADUCTION] Pour obtenir du ministre du Patrimoine canadien une décision rendue en vertu de la LIC, les fonctionnaires d’EISC sont tenus de rédiger a` son intention une note d’information qui doit etreˆ revêtue de la signature du directeur, Investissements. 33 Mme Marston-Shmelzer a egalement´ evoqu´´ e la demande formulée par le SCEP ainsi que la manière dont EISC l’avait traitée. EISC a bien fourni au cabinet du ministre des el´´ ements d’information, mais, selon la déclaration faite sous serment par Mme Marston-Shmelzer, [TRADUC- TION] « EISC n’a a` aucun moment fait la moindre démarche en vue d’obtenir du ministre du Patrimoine canadien une décision en réponse a` la [demande formulée par le SCEP] ». Le Syndicat semble voir dans cette déclaration la reconnaissance que les fonctionnaires d’EISC avaient décidé de ne pas donner suite aux renseignements transmis par le SCEP. On ne saurait retenir une telle interprétation de ce qu’a déclaré Mme Mar- ston-Shmelzer. Elle a simplement dit qu’aucune démarche n’avait et´´ e ef- fectuée pour demander au ministre de prendre une décision. Ce n’est pas du tout la même chose que d’avoir décidé que la demande formulée par le SCEP n’était pas fondée. Les affidavits ne contiennent rien qui porte a` penser qu’il n’aurait pas et´´ e donné suite a` une décision de procéder a` l’examen de l’acquisition effectuée par Postmedia, ou qu’il a et´´ e décidé de ne pas procéder a` un tel examen. Je relève par ailleurs que, si le SCEP interprète ainsi la déclaration faite sous serment par Mme Marston- CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider, J. 237

Shmelzer, c’est sans l’avoir contre-interrogé au sujet de ses affidavits afin d’élucider ses propos. 34 En dernière analyse, je n’admets pas l’argument du SCEP voulant que le ministre, par l’intermédiaire de ses fonctionnaires d’EISC, ait pris la décision de ne donner aucune suite a` la demande formulée par le Syndicat.

B. Question nº 2: Le ministre est-il tenu de donner suite a` la demande du SCEP? 35 La question de savoir si le ministre a pris une décision susceptible de contrôle judiciaire est liée a` celle de savoir s’il a une quelconque obligation de procéder a` l’examen de l’acquisition effectuée par Postmedia a` la suite de la demande en ce sens formulée par le Syndicat. En d’autres termes, une demande formulée par un tiers peut-elle provoquer l’examen prévu au paragraphe 26(2.1)? 36 Si, de fait, une telle obligation existait, on pourrait conclure que le ministre etait´ tenu de donner suite a` la demande formulée par le SCEP, et que le fait de ne pas avoir procédé ainsi soulève effectivement une question justiciable. Cela serait conforme aux observations faites par la Cour dans la décision Krause c Canada, [1999] 2 CF 476, a` la page 491, 236 NR 317 (voir egalement´ Popal c Canada (Ministre de la Citoyenneté et de l’Immigration), [2000] 3 CF 532, [2000] ACF nº 352, au paragraphe 30) c’est-à-dire que toute question a` l’égard de laquelle il est possible d’obtenir réparation peut etreˆ considérée comme « objet de la demande ». Si je devais conclure, comme l’affirme le SCEP, que le ministre etait´ dans l’obligation de lui répondre, le fait qu’il n’ait pas répondu pourrait etreˆ susceptible de contrôle judiciaire etant´ donné, pourrait-on soutenir, que le Syndicat disposerait alors d’un recours (tel que le mandamus ou le certiorari). Or, je considère qu’une telle obligation n’existe pas. 37 La principale difficulté, pour le SCEP, est que l’on ne trouve, ni au paragraphe 26(2.1), ni dans le reste de la LIC, rien qui prévoie la pos- sibilité pour un tiers de déposer une plainte au sujet d’une opération, ou d’en demander l’examen. Le législateur n’a pas entendu qu’un tiers puisse provoquer, dans de telles circonstances, l’examen d’une acquisition. Autrement, le législateur aurait inscrit dans la LIC des termes ex- plicites en ce sens. Là où le législateur a manifesté l’intention de permet- tre de déclencher une action, les dispositions de la LIC le prévoient. Ainsi, l’article 37 fixe la procédure permettant, dans certaines circonstances, d’obtenir du ministre une opinion. 238 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

38 Le large pouvoir discrétionnaire qu’a le ministre de procéder a` un examen en vertu de la LIC est analogue a` celui du ministre du Revenu national, sur lequel la Cour d’appel fédérale s’est penchée dans Distribu- tion Canada Inc c Ministre du Revenu national, [1993] 2 CF 26, a` la p. 41, 99 DLR (4th) 440 (CAF), refus d’autorisation de pourvoi en Cour suprême du Canada, [1993] 2 RCS vii. Dans cette affaire, une organisation d’épiciers demandait au ministre du Revenu national de faire appliquer certaines dispositions du Tarif des douanes, LRC 1985, c C-54, a` l’encontre de personnes achetant aux Etats-Unis´ des marchandises a` ramener au Canada. Estimant que le ministre du Revenu national n’avait aucunement manqué a` une des obligations que lui imposait le Tarif des douanes, la Cour d’appel a conclu que: Seul celui qui est tenu a` une obligation publique de ce genre peut décider de la fa¸con dont il utilise ses ressources a` cette fin. Le ministre n’a pas manqué a` ses obligations, ni n’a fait preuve de négligence ou de mauvaise foi. Il a fait la preuve des difficultés qu’il rencontre dans l’application de la loi, et il est investi dans ce contexte d’un pouvoir discrétionnaire auquel la justice ne portera pas atteinte. [Non souligné dans l’original.] 39 En l’espèce, le ministre dispose, en vertu du paragraphe 26(2.1), d’un large pouvoir discrétionnaire semblable. Il est tenu d’appliquer un régime législatif complexe et important a` l’égard des investissements etrangers´ dans le secteur des activités culturelles canadiennes. Le dossier ne contient aucun el´´ ement de preuve permettant d’affirmer que le ministre aurait [TRADUCTION] « renoncé a` remplir ses obligations » ou qu’il ait en l’occurrence [TRADUCTION] « fait preuve de négligence ou de mauvaise foi ». En fait, il ressort du témoignage de Mme Marston- Shmelzer, que le ministre, par l’intermédiaire d’EISC, etudie´ attentivement tous les renseignements qui lui sont fournis avant de décider si l’examen prévu au paragraphe 26(2.1) se justifie dans tel ou tel cas pré- cis. Ajoutons que, compte tenu des exigences elev´´ ees de confidentialité qu’impose en ce domaine le cadre législatif, le large pouvoir discrétion- naire conféré au ministre revêt encore plus d’importance. Cela etant,´ la Cour ne devrait pas intervenir.

C. Question nº 3: Le pouvoir discrétionnaire du ministre est-il absolu et sans entraves? 40 Le dernier argument avancé par le Syndicat est que, contrairement aux principes dégagés dans l’arrêt Roncarelli, précité, le refus de soumet- tre la décision du ministre au contrôle judiciaire aurait pour effet de met- CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider, J. 239

tre le ministre a` l’abri du contrôle judiciaire. Le SCEP fait par consé- quent valoir que l’exercice (ou non-exercice) par le ministre de son pouvoir discrétionnaire en réponse a` la demande formulée par le SCEP devrait etreˆ soumis au contrôle judiciaire. Selon moi, les principes dégagés dans l’arrêt Roncarelli ne s’appliquent pas en l’espèce. 41 Je conviens avec le SCEP qu’il n’existe pas de pouvoir discrétion- naire absolu et sans entraves pouvant etreˆ exercé au bon gré du décideur. Dans l’arrêt Roncarelli, précité, a` la page 140, le juge Rand, en accord avec la majorité de la Cour suprême, s’est prononcé en ces termes: [TRADUCTION] [...]; une loi ne peut, si elle ne l’exprime expressément, s’interpréter comme ayant voulu conférer un pouvoir arbitraire illimité pouvant etreˆ exercé dans n’importe quel but, si fantaisiste et hors de propos soit-il, sans avoir egard´ a` la nature ou au but de cette loi. [...] La « discrétion » implique nécessairement la bonne foi dans l’exercice d’un devoir public. Une loi doit toujours s’entendre comme s’appliquant dans une certaine optique [...] 42 Selon le juge Rand, un pouvoir discrétionnaire conféré par la loi doit etreˆ exercé en tenant compte des facteurs pertinents et en fonction du cadre législatif applicable. Selon le juge Rand, l’élément non pertinent qui, dans l’affaire Roncarelli, avait et´´ e pris en compte pour annuler le permis d’alcool du demandeur, etait´ l’exercice par le demandeur de son droit [TRADUCTION] « incontestable » de fournir un cautionnement pour des témoins de Jéhovah. L’étendue du pouvoir discrétionnaire con- féré par la loi etait´ fonction de l’objet de la législation sur la vente d’alcool dans les restaurants (Roncarelli, précité, a` la p. 141). De même que la couleur des cheveux ou la province d’origine de quelqu’un n’ont rien a` voir avec la vente de boissons alcoolisées dans un restaurant, le fait que M. Roncarelli ait fourni un cautionnement etait´ sans pertinence (Roncarelli, précité, a` la p. 140). 43 Contrairement a` ce qu’il en etait´ dans l’affaire Roncarelli, le dossier dont je suis saisie ne contient rien qui indique qu’EISC ou le ministre ait pris en compte des el´´ ements non pertinents. Le Syndicat soutient qu’il n’a et´´ e tenu aucun compte de sa demande d’examen parce qu’elle emanait´ d’un tiers qui, pourtant, etait´ en droit de faire parvenir des renseignements au ministre. Toutefois, rien dans le dossier n’indique que cela ait effectivement et´´ e le cas. A` l’inverse, vu les témoignages de M. Duplessis et de M. Archambault, directeur général de la Commission des liqueurs, le motif ayant entraˆıné a` l’époque l’annulation du permis 240 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

d’alcool de M. Roncarelli etait´ [TRADUCTION] « indubitable » (Ron- carelli, précité, a` la p. 133). 44 En fait, compte tenu de l’objet même de la LIC, la lettre de réponse et les affidavits non contestés de Mme Marston-Shmelzer démontrent que seuls ont et´´ e pris en compte des el´´ ements pertinents. L’objet de la LIC est enonc´´ e a` l’article 2 de la LIC: 2. Recognizing that increased capital and technology benefits Can- ada, and recognizing the importance of protecting national security, the purposes of this Act are to provide for the review of significant investments in Canada by non-Canadians in a manner that encourages investment, economic growth and employment opportunities in Canada and to provide for the review of investments in Canada by non-Canadians that could be injurious to national security. 2. Etant´ donné les avantages que retire le Canada d’une augmentation du capital et de l’essor de la technologie et compte tenu de l’importance de préserver la sécurité nationale, la présente loi vise a` instituer un mécanisme d’examen des investissements importants ef- fectués au Canada par des non-Canadiens de manière a` encourager les investissements au Canada et a` contribuer a` la croissance de l’économie et a` la création d’emplois, de même qu’un mécanisme d’examen des investissements effectués au Canada par des non- Canadiens et susceptibles de porter atteinte a` la sécurité nationale. 45 Tous les el´´ ements dont il est fait etat´ par le ministre dans sa lettre de réponse, et par Mme Marston-Shmelzer dans ses affidavits, ont rapport cadre législatif et a` son objet. Le cadre etabli´ par la LIC montre combien il est important de préserver la confidentialité lorsque l’on procède a` l’examen d’une entreprise; toute publicité pourrait avoir des consé- quences défavorables tant pour l’entreprise que pour les investissements etrangers´ au Canada et pour les Canadiens qui profitent de ces investissements. Ajoutons que l’explication qui est donnée de la portée des attributions du ministre, bien qu’elle revête un caractère assez général, est ex- acte et conforme a` l’objet même de la LIC. Fait encore plus important, le témoignage de Mme Marston-Shmelzer explique les procédures qu’EISC applique aux observations que lui font parvenir des tiers. Il ressort de ces procédures que les observations que lui transmettent des tiers font l’objet d’un examen visant a` assurer que la LIC est correctement appliquée regard de son objet, de telles observations n’étant nullement négligées en raison de leur provenance. 46 Contrairement aux arguments avancés par le SCEP, le ministre n’est pas a` l’abri du contrôle judiciaire. Le pouvoir discrétionnaire qu’il tient CEP v. Canada (Minister of Canadian Heritage) Judith A. Snider, J. 241

de la LIC n’a rien d’absolu et la Cour pourrait intervenir si le ministre prenait en compte des facteurs n’ayant rien a` voir avec l’objet de la LIC et le contexte dans lequel la loi est appliquée. Par contre, lorsque les faits ne permettent pas d’établir l’existence d’un acte contraire a` la primauté du droit et que l’exercice d’un pouvoir discrétionnaire semble avoir et´´ e fondé sur des facteurs pertinents, il n’appartient pas a` la Cour d’intervenir.

VI. Conclusion 47 Voici, en dernière analyse, mes principales conclusions: 1. La lettre de réponse etait´ une lettre de courtoisie ou un accusé de réception qui a et´´ e envoyé a` simple titre d’information. Elle ne constitue pas un refus de prendre une décision et il ne ressort pas du dossier qu’il a et´´ e décidé de ne pas donner suite a` la demande formulée par le SCEP. 2. Le paragraphe 26(2.1) n’impose aucunement au ministre l’obligation de procéder a` un examen a` la demande d’un tiers. 3. Le pouvoir discrétionnaire du ministre n’est pas illimité et rien n’indique que son pouvoir discrétionnaire a et´´ e ou serait exercé en fonction d’éléments sans rapport avec l’objet même de la LIC. 48 Pour ces motifs, je conclus qu’il y a lieu de rejeter la demande de contrôle judiciaire etant´ donné qu’il n’existe en l’espèce ni « décision » ni « objet » qui puisse etreˆ contesté par voie de contrôle judiciaire. 49 Le ministre a droit aux dépens, au titre desquels il sollicite la somme forfaitaire de 10 000 $. Les parties reconnaissent que ce montant con- vient en l’espèce. J’estime que la somme de 10 000 $ (taxes et débours compris) correspond a` la taxation raisonnable des dépens dans une affaire de cette complexité.

Jugement LA COUR STATUE que: 1. la demande de contrôle judiciaire est rejetée; 2. les affidavits nº 1 et nº 2 de M. Peter Murdoch sont radiés; 3. la somme de 10 000 $, taxes et débours compris, est accordée au défendeur au titre des dépens. Application dismissed. 242 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

[Indexed as: Manitoba v. Russell Inns Ltd.] Her Majesty the Queen in Right of the Province of Manitoba, (Applicant) Respondent and Russell Inns Ltd. and 2323320 Manitoba Ltd., (Respondents) Appellants Manitoba Court of Appeal Docket: AI 11-30-07604 2013 MBCA 46 Holly C. Beard, Marc M. Monnin, Alan D. MacInnes JJ.A. Heard: November 29, 2011 Judgment: May 31, 2013 Administrative law –––– Prerequisites to judicial review — No other ave- nues of relief –––– Province expropriated portions of several parcels of property owner’s land for purpose of widening highway — Owner retained professional appraiser and applied to Land Value Appraisal Commission for compensation pursuant to Expropriation Act — Province paid only portion of interim professional fees submitted by owner that it deemed to be reasonable on voluntary basis — Commission ordered province to pay full fees of owner’s appraiser on without prejudice basis, subject to review for reasonableness after compensation issues had been resolved — Province successfully applied for judicial review; application judge quashed commission’s interim order — Owner appealed — Appeal allowed in part on other grounds — Application judge did not err in finding that province had no alternative remedy to judicial review and that province did not have right to appeal under s. 44 of Act — Application judge was correct in his interpretation of s. 44 of Act — There had been no determination of compensation payable so neither ss. 44(1) or (2) of Act was engaged. Administrative law –––– Standard of review — Correctness –––– Province expropriated six parcels of land belonging to property owner — Owner retained professional appraiser and applied to Land Value Appraisal Commission for compensation pursuant to Expropriation Act — Province paid only portion of interim professional fees submitted by owner that it deemed to be reasonable on voluntary basis — Commission ordered province to pay full fees submitted by appraiser with any arguments as to appropriateness of those fees to be heard at later date — Province successfully applied for judicial review; application judge quashed commission’s interim order — Application judge held that matter before commission was question of law that went to jurisdiction of commission and appropriate standard of review was correctness — Owner appealed — Ap- peal allowed in part on this ground — Application judge erred in law in adopting and applying standard of review of correctness — Applicable standard of Manitoba v. Russell Inns Ltd. 243 review of commission’s decision was reasonableness — Ground of appeal did not raise true question of jurisdiction or question of central importance to legal system — Ground of appeal raised question about interpretation and application by commission of its home statute. Real property –––– Expropriation — Procedure for assessing compensation — Costs — Jurisdiction and power of arbitrators –––– Province expropriated portions of several parcels of property owner’s land for purpose of widening highway — Owner retained professional appraiser and applied to Land Value Appraisal Commission for compensation pursuant to Expropriation Act — Province paid only portion of interim professional fees that it deemed to be reasonable on voluntary basis — Commission ordered province to pay full fees of owner’s appraiser on without prejudice basis, subject to review for reasonableness after compensation issues had been resolved — Province successfully applied for judicial review; application judge quashed commission’s interim order — Owner appealed — Appeal allowed in part; commission’s interim order quashed — Since application judge applied wrong standard of correctness, commission’s decision was re-assessed on basis of reasonableness — Commis- sion did not have authority or jurisdiction to make any order for interim payment of costs — There was no provision in Expropriation Act that permitted commission to make any order for interim payment of costs related to compensation proceedings. Real property –––– Expropriation — Procedure for assessing compensation — Costs — Particular items of costs — Experts’ fees –––– Province expropriated six parcels of land belonging to property owner — Owner retained professional appraiser and applied to Land Value Appraisal Commission for compensation pursuant to Expropriation Act — Province paid only portion of interim professional fees that it deemed to be reasonable on voluntary basis — Commission ordered province to pay full fees submitted by appraiser with reasonableness to be determined after determination of all other relevant matters — Province successfully applied for judicial review; application judge quashed commission’s interim order — Application judge held that s. 15(6) of Act creates right of property owner to appraisal costs and s. 15(7) of Act provides that costs will be determined once amount of compensation was determined, which had not occurred yet in case at bar — Owner appealed — Appeal allowed in part; commission’s interim order was quashed — Since application judge applied wrong standard of correctness, commission’s decision was re-assessed on basis of reasonableness — There was no reasonable basis for commission’s decision that owner’s costs should be paid in full on interim basis — There was no provision in Act that permitted commission to make any order for interim payment of costs related to compensation proceedings — Section 15(7) of Act provided that commission could deal with costs only after final compensation payable had been determined, which had not yet occurred in case at bar. 244 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Administrative law –––– Practice and procedure — On application for certiorari — Costs –––– Province expropriated portions of several parcels of property owner’s land for purpose of widening highway — Owner retained professional appraiser and applied to Land Value Appraisal Commission for compensation pursuant to Expropriation Act — Province paid portion of interim professional fees that it deemed to be reasonable on voluntary basis — Commis- sion ordered province to pay full fees of owner’s appraiser on without prejudice basis — Province successfully applied for judicial review; application judge quashed commission’s interim order — Application judge refused owner’s request for solicitor-client costs on judicial review application and awarded no costs to either party — Owner appealed — Appeal allowed in part on other grounds — Application judge’s order regarding costs was confirmed — Appli- cation judge was correct in concluding that he was not statutorily required to award costs on solicitor-client basis and that costs were in discretion of court — Application judge did not err in law in exercise of discretion by refusing to award costs to owner on solicitor-client basis — Application judge did not err in deciding to award no costs to either party. Cases considered by Holly C. Beard J.A.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — followed Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — considered Atkins v. Manitoba (2002), 2002 CarswellMan 596, (sub nom. Atkins v. Manitoba (Department of Conservation, Water Resources Branch)) 78 L.C.R. 155 (Man. L.V.A.C.) — considered Canada (Attorney General) v. Mowat (2011), 93 C.C.E.L. (3d) 1, D.T.E. 2011T- 708, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, (sub nom. Canada (Human Rights Comm.) v. Canada (Attorney General)) 73 C.H.R.R. D/30, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 2011 SCC 53, 422 N.R. 248, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471, [2011] S.C.J. No. 53, [2011] A.C.S. No. 53 (S.C.C.) — considered Manitoba v. Russell Inns Ltd. 245

Celgene Corp. v. Canada (Attorney General) (2011), 2011 CarswellNat 34, 2011 CarswellNat 35, 2011 SCC 1, 327 D.L.R. (4th) 513, 410 N.R. 127, 14 Admin. L.R. (5th) 1, [2011] 1 S.C.R. 3, 89 C.P.R. (4th) 1, [2011] S.C.J. No. 1 (S.C.C.) — referred to Dell Holdings Ltd. v. Toronto Area Transit Operating Authority (1997), 1997 CarswellOnt 78, 1997 CarswellOnt 79, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 31 O.R. (3d) 576 (headnote only), 7 R.P.R. (3d) 1, 36 M.P.L.R. (2d) 163, 45 Admin. L.R. (2d) 1, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 142 D.L.R. (4th) 206, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 206 N.R. 321, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 60 L.C.R. 81, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 97 O.A.C. 81, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) [1997] 1 S.C.R. 32, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) [1997] S.C.J. No. 6 (S.C.C.) — referred to Elsom v. Elsom (1989), 37 B.C.L.R. (2d) 145, [1989] 1 S.C.R. 1367, [1989] 5 W.W.R. 193, 59 D.L.R. (4th) 591, 96 N.R. 165, 20 R.F.L. (3d) 225, 1989 CarswellBC 95, 1989 CarswellBC 707, EYB 1989-66983, [1989] S.C.J. No. 48 (S.C.C.) — referred to Fouillard v. Ellice (Municipality) (2007), 2007 MBCA 108, 2007 CarswellMan 374, 93 L.C.R. 65, [2007] 12 W.W.R. 250, 220 Man. R. (2d) 113, 284 D.L.R. (4th) 193, 38 M.P.L.R. (4th) 43, 61 R.P.R. (4th) 37 (Man. C.A.) — considered Guinn v. Manitoba (2009), 466 W.A.C. 57, 245 Man. R. (2d) 57, 2009 Car- swellMan 373, 2009 MBCA 82, [2009] 9 W.W.R. 1, 98 Admin. L.R. (4th) 68, [2009] M.J. No. 279 (Man. C.A.) — referred to Harbour Brick Co. v. R. (1987), 38 L.C.R. 122, 17 F.T.R. 255, 1987 Car- swellNat 1132 (Fed. T.D.) — considered Homestead Properties (Canada) Ltd. v. Sekhri (2007), 214 Man. R. (2d) 148, 395 W.A.C. 148, 2007 MBCA 61, 2007 CarswellMan 162, [2007] 8 W.W.R. 635, [2007] M.J. No. 138 (Man. C.A.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered L.E. Powell Properties Ltd. v. Nova Scotia (1995), (sub nom. Nova Scotia (Attorney General) v. L.E. Powell Property Ltd.) 144 N.S.R. (2d) 93, (sub nom. Nova Scotia (Attorney General) v. L.E. Powell Property Ltd.) 416 A.P.R. 93, (sub nom. Nova Scotia (Attorney General) v. L.E. Powell Property Ltd.) 56 L.C.R. 306, 1995 CarswellNS 497, [1995] N.S.J. No. 343 (N.S. C.A.) — considered 246 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency) (2007), 2007 SCC 2, 2007 CarswellBC 78, 2007 Car- swellBC 79, 215 C.C.C. (3d) 449, 62 B.C.L.R. (4th) 40, 53 Admin. L.R. (4th) 153, 150 C.R.R. (2d) 189, 275 D.L.R. (4th) 1, (sub nom. Little Sisters Book & Art Emporium v. Canada) [2007] 1 S.C.R. 38, (sub nom. Little Sisters Book & Art Emporium v. Minister of National Revenue) 235 B.C.A.C. 1, (sub nom. Little Sisters Book & Art Emporium v. Minister of National Revenue) 388 W.A.C. 1, (sub nom. Little Sisters Book and Art Emporium v. Minister of National Revenue) 356 N.R. 83, 37 C.P.C. (6th) 1, [2007] S.C.J. No. 2 (S.C.C.) — followed M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. (2011), D.T.E. 2011T- 803, 2011 CarswellMan 606, 2011 CarswellMan 607, 2011 SCC 59, (sub nom. Nor-Man Regional Health Authority Inc. v. M.A.H.C.P.) 2012 C.L.L.C. 220-004, 96 C.C.E.L. (3d) 1, (sub nom. Manitoba Assn. of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 212 L.A.C. (4th) 93, (sub nom. Manitoba Assn. of Health Care Professionals v. Nor- Man Regional Health Authority Inc.) 340 D.L.R. (4th) 1, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 423 N.R. 95, [2012] 2 W.W.R. 619, 29 Admin. L.R. (5th) 1, (sub nom. Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals) [2011] 3 S.C.R. 616, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 275 Man. R. (2d) 16, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 538 W.A.C. 16, [2011] A.C.S. No. 59, [2011] S.C.J. No. 59 (S.C.C.) — considered Mahone Bay (Town) v. Lohnes (1983), 1983 CarswellNS 379, 59 N.S.R. (2d) 68, 125 A.P.R. 68 (N.S. T.D.) — considered McKean v. Ontario (Minister of Transportation) (2008), 2008 CarswellOnt 426, (sub nom. McKean v. Ontario (Ministry of Transportation)) 94 L.C.R. 185 (O.M.B.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador Manitoba v. Russell Inns Ltd. 247

(Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Northrop Grumman Overseas Services Corp. v. Canada (Department of Public Works & Government Services) (2009), (sub nom. Northrop Grumman Overseas Services Corp. v. Canada (Attorney General)) [2009] 3 S.C.R. 309, (sub nom. Canada (Attorney General) v. Northrop Grumman Overseas Services Corp.) 395 N.R. 78, (sub nom. Canada (Attorney General) v. Northrop Grumman Overseas Services Corp.) 313 D.L.R. (4th) 605, 2009 CarswellNat 3420, 2009 CarswellNat 3421, 2009 SCC 50 (S.C.C.) — considered Nova Scotia (Attorney General) v. Williams (1995), 126 D.L.R. (4th) 599, 56 L.C.R. 99, (sub nom. Williams v. Nova Scotia (Attorney General)) 144 N.S.R. (2d) 19, (sub nom. Williams v. Nova Scotia (Attorney General)) 416 A.P.R. 19, 1995 CarswellNS 123, [1995] N.S.J. No. 331 (N.S. C.A.) — considered Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324 (2003), 2003 CarswellOnt 3500, 2003 CarswellOnt 3501, 2003 SCC 42, (sub nom. Social Services Administration Board (Parry Sound) v. Ontario Public Service Employees Union, Local 324) 308 N.R. 271, (sub nom. Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324) 177 O.A.C. 235, 47 C.H.R.R. D/182, (sub nom. Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324) [2003] 2 S.C.R. 157, 31 C.C.E.L. (3d) 1, 67 O.R. (3d) 256, 2003 C.L.L.C. 220-062, (sub nom. Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324) 230 D.L.R. (4th) 257, 7 Admin. L.R. (4th) 177, REJB 2003-47356, [2003] S.C.J. No. 42 (S.C.C.) — considered Q. v. College of Physicians & Surgeons (British Columbia) (2003), 2003 SCC 19, 2003 CarswellBC 713, 2003 CarswellBC 743, 11 B.C.L.R. (4th) 1, 223 D.L.R. (4th) 599, 48 Admin. L.R. (3d) 1, (sub nom. Dr. Q., Re) 302 N.R. 34, [2003] 5 W.W.R. 1, (sub nom. Dr. Q. v. College of Physicians & Surgeons of British Columbia) [2003] 1 S.C.R. 226, (sub nom. Dr. Q., Re) 179 B.C.A.C. 170, (sub nom. Dr. Q., Re) 295 W.A.C. 170, [2003] S.C.J. No. 18, REJB 2003-39403 (S.C.C.) — considered 248 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

R. c. Caron (2011), 2011 CarswellAlta 81, 2011 CarswellAlta 82, 2011 SCC 5, 14 Admin. L.R. (5th) 30, 97 C.P.C. (6th) 205, [2011] 4 W.W.R. 1, (sub nom. R. v. Caron) 499 A.R. 309, (sub nom. R. v. Caron) 514 W.A.C. 309, [2011] 1 S.C.R. 78, (sub nom. R. v. Caron) 264 C.C.C. (3d) 320, (sub nom. R. v. Caron) 411 N.R. 89, 37 Alta. L.R. (5th) 19, (sub nom. R. v. Caron) 329 D.L.R. (4th) 50, [2011] S.C.J. No. 5 (S.C.C.) — considered Rebel Holdings Ltd. v. Division Scolaire Franco-Manitobaine (2008), 94 L.C.R. 257, 67 R.P.R. (4th) 212, [2008] 9 W.W.R. 19, 2008 MBCA 65, 2008 Car- swellMan 273, 427 W.A.C. 157, 228 Man. R. (2d) 157 (Man. C.A.) — considered Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50 C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36 O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1, (sub nom. Adrien v. Ontario Ministry of La- bour) 98 C.L.L.C. 210-006, [1998] S.C.J. No. 2 (S.C.C.) — followed Sciberras v. Manitoba (Workers’ Compensation Board) (2011), 2011 Car- swellMan 135, 2011 MBCA 30, 24 Admin. L.R. (5th) 243, 262 Man. R. (2d) 277, [2011] 6 W.W.R. 606, 507 W.A.C. 277, [2011] M.J. No. 109 (Man. C.A.) — considered Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, 9 Admin. L.R. (4th) 161, [2003] 3 S.C.R. 77, 17 C.R. (6th) 276, 2003 SCC 63, 2003 CarswellOnt 4328, 2003 CarswellOnt 4329, 311 N.R. 201, 2003 C.L.L.C. 220-071, 179 O.A.C. 291, 120 L.A.C. (4th) 225, 31 C.C.E.L. (3d) 216, [2003] S.C.J. No. 64, REJB 2003-49439 (S.C.C.) — considered Toronto Hydro-Electric System Ltd. v. Ontario (Energy Board) (2010), 261 O.A.C. 306, 2010 CarswellOnt 2353, 2010 ONCA 284, 68 B.L.R. (4th) 159, 317 D.L.R. (4th) 247, 99 O.R. (3d) 481 (Ont. C.A.) — considered Towers Ltd. v. Quinton’s Cleaners Ltd. (2009), 466 W.A.C. 70, 2009 Car- swellMan 375, 2009 MBCA 81, [2010] 1 W.W.R. 246, 245 Man. R. (2d) 70, [2009] M.J. No. 286 (Man. C.A.) — referred to Turnbull v. Canadian Institute of Actuaries (1995), 1995 CarswellMan 216, [1996] 1 W.W.R. 1, 129 D.L.R. (4th) 42, 33 Admin. L.R. (2d) 191, 107 Man. R. (2d) 63, 109 W.A.C. 63, 11 C.C.P.B. 134, [1995] M.J. No. 424 (Man. C.A.) — referred to Winnipeg (City) Assessor v. Canadian National Railway (1998), 134 Man. R. (2d) 122, 193 W.A.C. 122, 1998 CarswellMan 565, [1998] M.J. No. 592 (Man. C.A.) — referred to 2127423 Manitoba Ltd. v. Unicity Taxi Ltd. (2012), 353 D.L.R. (4th) 83, 2012 CarswellMan 419, 2012 MBCA 75, [2012] 10 W.W.R. 1, 280 Man. R. (2d) 292, 548 W.A.C. 292 (Man. C.A.) — considered Manitoba v. Russell Inns Ltd. 249

Statutes considered: Court of Queen’s Bench Act, S.M. 1988-89, c. 4 s. 92 — considered s. 92(v) — considered s. 93(1) — considered s. 96(1) — considered Expropriation Act, S.M. 1970, c. 78 Generally — referred to Expropriation Act, R.S.M. 1987, c. E190 Generally — referred to s. 1(1) — referred to s. 15 — considered s. 15(1) — considered s. 15(2) — considered s. 15(3) — considered s. 15(6) — considered s. 15(7) — considered s. 20(7) — referred to s. 28(1)(e) — considered s. 43(1) — referred to s. 43(2) — referred to s. 43(3) — referred to s. 44 — considered s. 44(1) — considered s. 44(2) — considered s. 44(3) — considered Expropriation Act, R.S.N.S. 1989, c. 156 s. 35(1) — considered s. 47 — referred to s. 47(1) — considered s. 52 — considered s. 52(10) — referred to Human Rights Code, S.M. 1987-88, c. 45 s. 43 — referred to s. 48(1) — referred to Human Rights Code, R.S.O. 1990, c. H.19 Generally — referred to Municipal Assessment Act, S.M. 1989-90, c. 24 s. 63 — considered National Energy Board Act, R.S.C. 1985, c. N-7 Generally — referred to s. 75 — considered 250 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Rules considered: Queen’s Bench Rules, Man. Reg. 553/88 Generally — referred to R. 57 — considered R. 57.01(1) — considered R. 57.01(1)(h) — considered

APPEAL by property owner from judgment reported at Manitoba v. Russell Inns Ltd. (2011), 2011 CarswellMan 239, 2011 MBQB 112, 104 L.C.R. 188, 265 Man. R. (2d) 99, 334 D.L.R. (4th) 212 (Man. Q.B.), granting province’s application for judicial review, quashing interim order of Land Value Appraisal Com- mission and awarding no costs.

J.A. Mercury, for Appellants W.G. McFetridge, for Respondent

Holly C. Beard J.A.: I. The Issues 1 This appeal relates to an expropriation under The Expropriation Act, C.C.S.M., c. E190 (the Act), and the interpretation of ss. 15(6) and (7) thereof. The appellants (Russell Inns) are appealing an order of a judge of the Court of Queen’s Bench (application judge) granting the respondent’s (Manitoba) application for judicial review and quashing an interim order of the Land Value Appraisal Commission (LVAC). In its interim order, the LVAC ordered Manitoba, as the expropriating authority, to pay the full fees of Russell Inns’ appraiser on a without prejudice basis, subject to review for reasonableness after the compensation issues had been resolved. 2 Manitoba had been paying a portion of the professional fees and other expenses of Russell Inns on a voluntary basis, but limited its payments to that portion of the fees and expenses that it deemed to be reasonable. It stated that it would pay interest on any amounts withheld, if they were subsequently found by the LVAC to be reasonable. It took the position that, under the legislation, it was only obligated to pay reasonable fees, not all fees, and any disagreement on the question of reasonableness would have to be resolved after the question of compensation had been determined. 3 The grounds of appeal are: (i) Did the application judge err in determining there was no alternative remedy to judicial review? Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 251

(ii) Did the application judge err in determining the LVAC had no jurisdiction to issue the order that it did? (iii) Did the application judge err in failing to award costs to Russell Inns on the judicial review application in accordance with s. 15(6) of the Act?

II. The Facts 4 Manitoba had expropriated portions of several parcels of land owned by Russell Inns, which are adjacent to PTH 16, for the purpose of widening the highway. Russell Inns have applied to the LVAC for a determination of compensation and the parties are in the process of negotiating the compensation to be paid to Russell Inns for the taking of their property; however, the calculation of that compensation is complex because the loss being claimed by Russell Inns includes alleged deleterious effects on the businesses that are being operated on the properties. 5 Russell Inns retained legal counsel and an appraiser to assist them in preparing their claim, and they have incurred ongoing expenses, including professional fees and the cost of a new survey of the property. They have submitted interim accounts to Manitoba for payment, but Manitoba has paid only a portion of those accounts, rejecting some costs and expenses on the basis that they are unreasonable and, therefore, do not qualify for payment under the legislation. 6 The parties were not able to settle the issue of the interim payment of expenses, so they agreed to an appearance before the LVAC to see if the matter could be resolved. It became evident that they were not in agreement as to the purpose of that appearance. Russell Inns take the position that they agreed to have this matter resolved by the LVAC, while Mani- toba takes the position that it agreed to appear and ask if the LVAC could hold an interim hearing to determine the reasonableness of the fees. 7 If the purpose was the former, then Russell Inns take the position that Manitoba consented to the jurisdiction of the LVAC to make an order regarding their entitlement to payment of all of their costs on an interim basis. If the purpose was the latter, then Manitoba takes the position that, once the LVAC decided that it could not hold an interim hearing to determine the reasonableness of the costs, that ended the matter and the LVAC had no jurisdiction to go on to make an interim order requiring payment of all expenses on a “without prejudice” basis, as it did. 8 The LVAC initially sent a letter to the parties dated December 23, 2009, indicating that there had been a “Pre-hearing” conference seeking 252 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

advice regarding the payment of appraisal fees. After setting out the positions of the parties, the LVAC stated that it had “determined” that Mani- toba should pay the full fees, subject to adjustment for reasonableness after the matter of the taking had been finally resolved. 9 Manitoba wrote to say that it interpreted that letter as being a recommendation because the LVAC was not able to hold a hearing to determine the reasonableness of the fees. It maintained its position that it was only liable for reasonable fees, that it would not be paying the full fees and that it was waiting for a later hearing to determine reasonableness. Russell Inns disagreed with Manitoba’s position and asked the LVAC to confirm that its decision of December 23, 2009, was, in fact, an order. 10 The LVAC then issued an order dated April 13, 2010, in which it essentially repeated the terms of its letter of December 23, 2009, in the form of an order, requiring Manitoba to pay the full fees and stating that it would hear argument following the “conclusion of this matter” to rule on the reasonableness of those fees. It indicated that, if it determined that there had been an overpayment, Russell Inns would reimburse Manitoba. While the letter of December 23, 2009, briefly sets out the positions taken by each party, neither that letter nor the order of April 13, 2010, contains any analysis or reasons dealing with the positions of the parties or Manitoba’s objections to the order or explaining the basis for the order.

III. The Legislation 11 The relevant sections of the Act are: Application to commission to determine compensation 15(1) After an offer of compensation is served under section 16, the authority or an owner of the land may, subject to section 37 (time limits), apply to the commission, in accordance with the rules of the commission, for the determination of compensation payable by the authority to the owner for the expropriation. Certification of amount by commission 15(2) On receiving an application under subsection (1), the commission shall give the authority and owner of the land an opportunity to be heard and shall determine and certify the compensation payable by the authority to the owner. Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 253

Certified amount is binding 15(3) Subject to subsection (6) and section 44 (appeal), an amount certified by the commission under subsection (2) is binding on the authority and the owner...... Authority to pay costs of owner 15(6) The authority shall pay reasonable appraisal, legal and other costs that are reasonably incurred by an owner for the purpose of determining the compensation payable under this Act for an expropriation. Commission may determine costs 15(7) Where the amount of compensation payable under this Act for an expropriation is settled by the authority and an owner without a hearing or is determined by the commission, the commission may, on application by the authority or owner, determine the costs. Appeal of certified amount to Court of Appeal 44(1) A party to a proceeding before the commission may appeal the amount certified as compensation payable to The Court of Appeal within 40 days after the day the commission certifies the amount under subsection 15(2), or within seven days from the day the commission issues a decision or certifies an amount under subsection 15(5), whichever is the later. Powers of Court of Appeal 44(2) An appeal under subsection (1) may be made on questions of law or fact or mixed law and fact, and The Court of Appeal may (a) refer any matter back to the commission for determination; or (b) make any determination that the commission has the power to make. Costs 44(3) The costs of an appeal are in the discretion of The Court of Appeal, and the court may order that costs be awarded to the owner and assessed in accordance with subsection 15(6) where the owner’s appeal is successful or where the appeal of an authority is unsuccessful.

IV. Standard of Review of Application Judge’s Decision 12 The role of the Court of Appeal in an appeal from a decision of a judge hearing an application for judicial review was set out by the Su- 254 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

preme Court of Canada in Q. v. College of Physicians & Surgeons (British Columbia), 2003 SCC 19, [2003] 1 S.C.R. 226 (S.C.C.) (at paras. 43-44): .... The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event she had not, to assess the administrative body’s decision in light of the correct standard of review, reasonableness. At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of an administrative decision. As such, the normal rules of appellate review of lower courts as articulated in Housen [2002 SCC 33, [2002] 2 S.C.R. 235], apply. The question of the right standard to select and apply is one of law and, therefore, must be answered correctly by a reviewing judge. The Court of Appeal erred by affording deference where none was due. The Court of Appeal should have corrected the reviewing judge’s error, substituted the appropriate standard of administrative review, and assessed the Committee’s decision on this basis..... (See, also, Guinn v. Manitoba, 2009 MBCA 82 (Man. C.A.) at para. 21, (2009), 245 Man. R. (2d) 57 (Man. C.A.), and Robert W. Macaulay, Q.C. & James L. H. Sprague, Practice and Procedure Before Administrative Tribunals, looseleaf (Toronto: Thomson Canada Limited, 2004), vol. 3, c. 28-46.20.)

V. First Ground of Appeal: Did the Application Judge Err in Determining there Was no Alternative Remedy to Judicial Review? (i) Standard of Review 13 This is a matter that arose for the first time before the application judge. The parties both take the position that this ground of appeal involves the interpretation of s. 44 of the Act and, as such, is a question of law that should be reviewed on a standard of correctness. I agree with this position.

(ii) The Application Judge’s Decision 14 The application judge noted that Russell Inns argued that Manitoba’s application for judicial review should be dismissed because it had alternative remedies, those being: firstly, that the LVAC order was made on a “without prejudice” basis and permitted Manitoba to argue for an adjust- Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 255

ment after the compensation had been settled; and, secondly, that Mani- toba had a right of appeal under s. 44(1) of the Act. 15 On the first alternative remedy, Manitoba had argued that, because it was challenging the validity of the order, it would be wrong to rely on any remedy arising out of it. The application judge agreed with this position and did not further consider this remedy. 16 On the second alternative remedy of an appeal to this court under s. 44(1), the application judge stated that he had to consider the adequacy of an appeal to address Manitoba’s challenge to the LVAC order. He began by confirming that the practice, as stated by this court and acknowledged in the leading legal text on this subject, is to decline jurisdiction to grant judicial review of an interlocutory order where there is a right of appeal from a final order, except under special circumstances. (See Donald J. M. Brown, Q.C. & The Honourable John M. Evans with the assistance of Christine E. Deacon, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing Inc., 2012), vol. 1, c. 3 at para. 3:2100; Turnbull v. Canadian Institute of Actu- aries (1995), 107 Man. R. (2d) 63 (Man. C.A.); and Winnipeg (City) Assessor v. Canadian National Railway (1998), 134 Man. R. (2d) 122 (Man. C.A.) at para. 16.) 17 The application judge found that s. 44(1) limits the right of appeal to that of the amount certified as compensation payable and does not apply to a question of jurisdiction regarding an interim order of costs. He contrasted the wording of s. 44(1) with that of s. 63 of The Municipal As- sessment Act, C.C.S.M., c. M226, which specifically includes the right to appeal (with leave of the court) a question involving jurisdiction. He stated that there is a difference between the question of the amount certified as compensation payable, as referred to in s. 44(1), and the LVAC order in this case, which did not certify any amount as payable. 18 The application judge found that (at para. 28): In the case at hand, the LVAC’s ability to issue this order will need resolving by way of judicial review at some point. There is no misuse of resources or risk of multiple appeals in having this issue determined at this stage of the LVAC proceeding, particularly with no obvious ability to appeal this order. 19 He concluded that, in this case, there is no clear alternative remedy to an application for judicial review, with the result that he proceeded to determine the application. 256 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

(iii) The Appellants’ Position 20 Russell Inns’ position is that, in concluding that the right of appeal under s. 44(1) did not permit an appeal on a question of jurisdiction, the application judge overlooked s. 44(2) of the Act, which states that a party can appeal on a question of law, fact or mixed law and fact. It argues that a jurisdictional error is a question of law and, therefore, remains within the statutory mandate of the Court of Appeal to consider after the compensation process is completed.

(iv) The Respondent’s Position 21 Manitoba acknowledges that the practice is to decline jurisdiction to grant judicial review of an interlocutory order where there is a right of appeal from a final order except in special conditions. It takes the position that, as was found by the application judge, the right of appeal under s. 44 of the Act applies only to a review of the amount of compensation certified by the LVAC, so that the statutory right of appeal does not apply to the jurisdictional point at issue here. 22 It also argues that the LVAC’s mandate to deal with costs payable on an expropriation only comes into effect after the amount of compensation has been determined. The order under consideration, which requires that Manitoba pay all invoices fully when submitted, was not an order certify- ing the compensation payable for these appraisal costs, and the LVAC did not make any determination that the amounts were either reasonably incurred or reasonable in amount. It left that determination until after the amount of due compensation had been resolved. Thus, the LVAC had no mandate to make any order regarding costs. 23 Finally, it also argues that Manitoba had adopted a policy of paying what it considered to be reasonable costs reasonably incurred and that the LVAC had no jurisdiction to interfere with Manitoba’s exercise of discretion by ordering it to act other than in accordance with its policy.

(v) Analysis and Conclusion 24 While Russell Inns relies on s. 44(2) to argue that the issue of the jurisdiction of the LVAC to make the order is a question of law for which there is statutory authority on which to base an appeal, that argument misses critical wording in that provision. Section 44(2) states that “[a]n appeal under subsection (1) may be made on [a question] of law” (emphasis added). By this wording, the question of law must relate to the appeal that is permitted in s. 44(1), which is limited to an appeal regard- Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 257

ing “the amount certified as compensation payable.” Section 44(2) cannot be read as a separate right of appeal permitting an appeal on any question of law, fact, or mixed law and fact, which is the effect of what is being suggested by Russell Inns. 25 In this case, there has been no determination of the amount certified as compensation payable, so neither ss. 44(1) or (2) is engaged. I am in agreement with the application judge that there is no alternative remedy available to review the LVAC order, so there is no misuse of judicial resources or risk of multiple appeals in having this issue determined at this stage. The application judge was correct in his interpretation of s. 44 of the Act. 26 It should also be noted that, if an appeal of the interim order is post- poned until after the final compensation has been determined and the right of appeal under s. 44 is triggered, the interim order for the payment of costs would be spent and a determination as to whether it was properly made would be moot for these parties. There is a real risk that an appeal of the interim order at that stage would be dismissed on the basis that the issue of the LVAC’s authority to grant any order on an interim basis had become moot. 27 For these reasons, I would find that the application judge did not commit an error of law in regard to this ground of appeal.

VI. Second Ground of Appeal: Did the Application Judge Err in Determining the LVAC had no Jurisdiction to Issue the Order that it did? (i) The Nature of the Question 28 Russell Inns defined this ground of appeal as “did the Commission reasonably conclude that the Authority should pay the Landowner’s interim costs,” while Manitoba rephrased it as “did the application judge err in determining the Commission had no jurisdiction to issue the order it did.” However phrased, the essence of the question involves two matters: • whether the LVAC has any jurisdiction to make any interim order for the payment of costs; and • whether Manitoba can limit the interim payment of costs to those it believes are reasonable and reasonably incurred, subject to the later determination of the reasonableness of those costs by the LVAC under s. 15(7) and payment by it (with interest) of any ad- 258 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

ditional amount found to be reasonable, or whether Manitoba must pay the full costs as the accounts are submitted, subject to the later determination of the reasonableness of those costs by the LVAC under s. 15(7), with the owner being liable for any amounts found unreasonable. 29 However the question is categorized, it involves the interpretation of the Act, and particularly ss. 15(6) and (7), making it a question of statutory interpretation and, in this case, a question of law. Judicial review of the LVAC’s interpretation of this provision requires a determination of the appropriate standard of review.

(ii) Standard of Review 30 The application judge concluded, based on this court’s decision in Rebel Holdings Ltd. v. Division Scolaire Franco-Manitobaine, 2008 MBCA 65, 228 Man. R. (2d) 157 (Man. C.A.), that this question was either one of jurisdiction to which correctness applied or, if not, that it was still a question to which the applicable standard of review was that of correctness (at para. 42). 31 Russell Inns argues that the application judge erred in this regard and that the applicable standard of review of the LVAC’s decision should be that of reasonableness. In support of this position they do not refer to Rebel Holdings, but rely on the decisions of the Supreme Court of Can- ada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.); Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39, [2009] 2 S.C.R. 678 (S.C.C.); and Alliance Pipeline Ltd. v. Smith, 2011 SCC 7, [2011] 1 S.C.R. 160 (S.C.C.). Based on those decisions, they argue that the LVAC had the jurisdiction to make the inquiry at issue regarding the payment of costs, with the result that the appropriate standard of review was one of reasonableness. The basis of their position is that the LVAC was dealing with the payment of costs and interpreting its own enabling statute. They argue that the application judge erred in not applying these principles and, therefore, in applying the wrong standard of review. 32 Manitoba argues, citing Rebel Holdings, that the standard of review to be applied by the application judge in reviewing the LVAC’s jurisdiction to order the payment of interim costs is that of correctness. Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 259

The Decision in Dunsmuir 33 In Dunsmuir, the Supreme Court of Canada stated that the system of judicial review of administrative decisions had proven difficult to implement and the court undertook a reassessment of the approach that had been previously followed. Bastarache and LeBel JJ., for the majority, stated that “[o]ur review of the system will therefore be comprehensive, which is preferable since a holistic approach is needed when considering fundamental principles” (at para. 26) and “these reasons will address first and foremost the structure and characteristics of the system of judicial review as a whole” (at para. 33). (See also the comments of Binnie J. at para. 121 and Deschamps J. at para. 158.) 34 Bastarache and LeBel JJ. held that there would only be two standards of review — reasonableness and correctness (at para. 34). Reasonable- ness is a deferential standard that determines whether the decision under review falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (at para. 47). Correctness, as a standard of review, requires that the reviewing court undertake its own analysis of the question, rather than showing deference for the reasoning process in the decision under review (at para. 50). 35 They then set out a series of categories of questions or issues that are the subject of review and considered the standard to be applied to each category. 36 Finally, they summarized the process of judicial review (at paras. 62, 64): In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. The [standard of review] analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. 260 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

37 Dunsmuir was quickly followed by a number of other decisions clari- fying and applying the principles in Dunsmuir. (See, for example: Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) (Khosa); Kerry (Canada) Inc.; Northrop Grumman Overseas Services Corp. v. Canada (Department of Public Works & Government Services), 2009 SCC 50, [2009] 3 S.C.R. 309 (S.C.C.) (Northrop); Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3 (S.C.C.) (Celgene); Smith; Canada (Attorney General) v. Mowat, 2011 SCC 53, [2011] 3 S.C.R. 471 (S.C.C.) (Mowat); M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59, [2011] 3 S.C.R. 616 (S.C.C.) (Nor-Man); N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) (Nfld. Nurses’ Union); and A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654 (S.C.C.) (A.T.A.).) 38 There is a significant amount of academic commentary accumulating that questions whether this revised procedure has simplified the determination of standards of review or merely substituted one complex system for another.

Step One — Prior Determination of Standard of Review 39 The majority in Dunsmuir was clear in stating that it will not always be necessary to carry out an exhaustive review to determine the appropriate standard of review, and that recourse should first be had to the existing jurisprudence to determine whether the standard of review has already been determined (at para. 57). 40 In this case, Manitoba is relying on this court’s decision in Rebel Holdings as the applicable jurisprudence that leads to the conclusion that this ground of appeal is to be reviewed on the standard of correctness rather than reasonableness, as did the application judge. If this were the case, there would be no need for a standard of review analysis. 41 Dunsmuir was released after the appeal hearing in Rebel Holdings, but before this court released its decision in that case. While this court based its decision on Dunsmuir, it was very much an interpretation of first impression, given that Rebel Holdings was released less than three months after Dunsmuir. Since then, a significant body of case law (some of which is noted at para. 37 herein) has interpreted and applied the Dun- smuir principles, which have evolved to such an extent that, rather than applying the standard of review as determined in Rebel Holdings, it is Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 261

necessary to undertake a new standard of review analysis. (See, for example, Mowat at para. 21.)

Step Two — Standard of Review Analysis 42 In A.T.A., Rothstein J., for the majority, described a further two-step process for conducting a standard of review analysis, stating (at para. 44): Dunsmuir provided guidance as to how a standard of review might be determined summarily without requiring a full standard of review analysis. One method was to identify the nature of the question at issue, which would normally or, I say, presumptively determine the standard of review. Contrary to the view of my colleague in para. 97, I would not wish to retreat to the application of a full standard of review analysis where it can be determined summarily. 43 This summary procedure was explained by the court in Smith, wherein Fish J., for the majority, stated (at paras. 23-26): ... I think it important to reiterate here that the extensive and for- mulaic inquiries of the past have now been replaced by the broader and less cumbersome approach set out by the Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Pursuant to Dunsmuir: ... the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [para. 62] Even when resort to these factors is required, it may not be necessary to consider them all (para. 64). Accordingly, reviewing judges can usefully begin their analysis by determining whether the subject matter of the decision before them for review falls within one of the non-exhaustive categories identified by Dunsmuir. Under that approach, the first step will suffice to ascertain the standard of review applicable in this case. Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and 262 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

outside the adjudicator’s specialized area of expertise’” (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). [emphasis added] 44 It is only if this analytical framework is not determinative of the standard of review that the courts must conduct a full standard of review analysis as described in para. 64 of Dunsmuir. 45 That said, Macaulay and Sprague are of the view that three of the four factors that formed the basis of the standard of review analysis referred to in para. 64 of Dunsmuir (found at para. 36 herein) (which were applied in Rebel Holdings) are quickly being dropped, or at least relegated to minor importance, and the factor of the nature of the question is becoming so dominant as to be almost determinant (see, for example, pp. 28-46.26, 28-46.80(10)). The nature of the question most often falls into one of the seven categories identified in para. 26 of Smith (found at para. 43 herein). The authors conclude (at p. 28-46.44): In fact, the standard of review analysis appears to be evolving into a fairly short principle calling for a general standard of review of reasonableness subject to the four exceptions noted [in Smith]. 46 The four exceptions are: constitutional questions; questions related to the lines of jurisdiction between two or more competing specialized agencies; questions of general law that are both of central importance to the legal system as a whole and outside the agency’s specialized area of expertise; and true questions of jurisdiction. 47 In this case, this ground of appeal relates to the order of the LVAC requiring Manitoba to pay Russell Inns’ full professional fees on an interim basis, to be reviewed for reasonableness following the final determination of the proceeding before the LVAC. This ground of appeal could fall into three of the seven categories identified in para. 26 of Smith: • the subject of the costs is clearly dealt with in ss. 15(6) and (7) of the Act, which suggests that the ground of appeal “relates to the Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 263

interpretation of the tribunal’s enabling (or ‘home’) statute or ‘statutes closely connected to its function, with which it will have particular familiarity’”; • given that the Act does not speak to the issue of the LVAC making any interim orders, the question of whether it could make any interim order could be seen as raising a question related to its jurisdiction to embark on the subject, thereby raising a “true question of jurisdiction or vires”; and • given that questions of procedure, such as the making of interim orders, arise in all adjudicative proceedings, it is possible to see the question of the authority to make interim orders as a question of general law that is both of central importance to the legal system as a whole and outside of the adjudicator’s specialized area of expertise.

(1) True Jurisdiction or Vires 48 A discussion of what constitutes true jurisdiction for our purposes be- gins with Dunsmuir. In that case, Bastarache and LeBel JJ. explained that “[j]udicial review is necessary to ensure that... administrative bodies do not exceed their jurisdiction” (at para. 52). They provided the following explanation of what is meant by “true questions of jurisdiction” (at para. 59): .... We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers’ Fellowship of South- ern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para. 5, per Bastarache J.). That case involved the decision-making powers of a municipality and exempli- 264 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

fies a true question of jurisdiction or vires. These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. [emphasis added] 49 As the determination of whether an issue involves a true question of jurisdiction remained a live issue after Dunsmuir, Rothstein J., speaking for the majority, provided an expanded explanation three and one-half years later in A.T.A. (at paras. 33-34, 38-39, 42): .... Experience has shown that the category of true questions of jurisdiction is narrow indeed. Since Dunsmuir, this Court has not identified a single true question of jurisdiction [citations omitted]. Al- though this Court held in [Northrop] that the question was jurisdictional and therefore subject to review on a correctness standard, this was based on an established pre-Dunsmuir jurisprudence applying a correctness standard to this type of decision, not on the Court finding a true question of jurisdiction (para. 10). The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review. ... [T]he “true questions of jurisdiction” category has caused confusion to counsel and judges alike and has unnecessarily increased costs to clients before getting to the actual substance of the case...... True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 265

question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness. As I have explained, I am unable to provide a definition of what might constitute a true question of jurisdiction. The difficulty with maintaining the category of true questions of jurisdiction is that without a clear definition or content to the category, courts will continue, unnecessarily, to be in doubt on this question. However, at this stage, I do not rule out, in our adversarial system, counsel raising an argument that might satisfy a court that a true question of jurisdiction exists and applies in a particular case. The practical approach is to direct the courts and counsel that at this time, true questions of jurisdiction will be exceptional and, should the occasion arise, to address in a future case whether such category is indeed helpful or necessary. [emphasis added] 50 The following statement by MacFarland J.A. in Toronto Hydro- Electric System Ltd. v. Ontario (Energy Board), 2010 ONCA 284, 99 O.R. (3d) 481 (Ont. C.A.) (which was adopted by Freedman J.A. of this court in Sciberras v. Manitoba (Workers’ Compensation Board), 2011 MBCA 30 (Man. C.A.) at para. 59, (2011), 262 Man. R. (2d) 277 (Man. C.A.)) is also helpful in explaining the meaning of true jurisdiction (at para. 24): Courts should hesitate to analyze the decisions of specialized tribunals through the lens of jurisdiction unless it is clear that the tribunal exceeded its statutory powers by entering into an area of inquiry outside of what the legislature intended. If the decision of a specialized tribunal aims to achieve a valid statutory purpose, and the enabling statute includes a broad grant of open-ended power to achieve that purpose, the matter should be considered within the jurisdiction of the tribunal. Its substance may still be reviewed for other reasons — on either a reasonableness or correctness standard — but it does not engage a true question of jurisdiction and cannot be quashed on the basis that the tribunal could not “make the inquiry” or “embark on a particular type of activity”. In contrast, where a tribunal is pursuing an illegitimate objective, or is engaging in actions that clearly defy the limits of its statutory authority, then a reviewing court may properly declare its decisions to be ultra vires..... 51 Macaulay and Sprague state that “[t]he consideration of jurisdictional issues from the perspective of ‘the authority to decide’ has become the dominant approach of the courts” (at p. 28-46.64). They then state as 266 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

follows regarding this characterization of jurisdiction (at pp. 28-46.66 - 28-46.68): .... The application of the increasingly narrow concept of jurisdiction as illustrated by the Supreme Court of Canada in its decision in Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 CarswellOnt 4494, 2009 SCC 39 (S.C.C.)... however, should logically push this characterization into the reasonableness standard where there is no question that the agency actually has a power and the only issue is why or how it exercised it. In other words the determination of the extent, or the parameters of a grant of authority is not to be considered jurisdictional for the purposes of determining the standard of review...... “The authority to make the inquiry” must broadly refer to the agency’s authority to determine whether some action or proceeding should be undertaken, or award or penalty or sanction should be granted or refused. This means essentially whether the relevant legislative body has, expressly or implicitly, given the agency the power to do the thing in question. Following what I understood to be the old [Nipawin] [[1975] 1 S.C.R. 382] example of a true jurisdictional issue, this should exclude directions as to how something should be done — whether that direction is legislatively express or implicit or implied by the common law concept of natural justice and fairness.... [emphasis added] 52 In summary, true jurisdiction is a very narrow concept. If the legislation (usually the home statute) gives the adjudicator the authority to decide or to act, the manner in which it makes that decision or exercises that authority is not a question of “true jurisdiction” for the purposes of determining the applicable standard of review. As stated in A.T.A., the party seeking to invoke the category of true jurisdiction must be required to demonstrate why the court should not review the tribunal’s interpretation of its home statute on the deferential standard of reasonableness (at para. 39). This is a significant evolution from the concept of “true jurisdiction” as set out in Dunsmuir.

(2) A Question of General Law of Central Importance to the Legal System and Outside the Adjudicator’s Expertise 53 This category applies where the tribunal is interpreting laws such as the common law or statutes other than its own enabling statute and closely related statutes. Rothstein J. in A.T.A. stated that, in order for cor- Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 267

rectness to apply, the question has to be both of central importance to the legal system and outside the adjudicator’s specialized area of expertise (at para. 46). 54 As in this case, the question of law at issue will often have more than one aspect, such that it can be described in such a way as to appear to affect the legal system as a whole. The Supreme Court of Canada has taken a narrower view of these questions, as was demonstrated in Mowat and Nor-Man. 55 In Mowat, the court was dealing with whether a provision to award compensation for expenses could include legal costs. The court stated (at para. 25): .... In addition, a decision as to whether a particular tribunal will grant a particular type of compensation — in this case, legal costs — can hardly be said to be a question of central importance for the Ca- nadian legal system and outside the specialized expertise of the adjudicator. Compensation is frequently awarded in various circumstances and under many schemes. It cannot be said that a decision on whether to grant legal costs as an element of that compensation and about their amount would subvert the legal system, even if a reviewing court found it to be in error. 56 The court further stated that, while human rights legislation also addresses issues like proof, procedure and remedial authority, being issues of broad import that also come before other tribunals and the courts, not all of those questions of general law rise to the level of issues of general importance to the legal system as a whole or fall outside of the adjudicator’s specialized area of expertise. The court emphasized that, since Dun- smuir, it has held that issues that, in other days, might have been considered by some to be questions of jurisdiction should now be dealt with under the standard of review analysis to determine the appropriate standard (at paras. 22-24). 57 In Nor-Man, the court was dealing with an arbitrator’s ruling that the union was estopped from advancing a particular claim. In addressing the question of whether the issue related to estoppel was a question of central importance to the legal system as a whole, as found by the Court of Ap- peal, Fish J. stated (at para. 38): .... Our concern here is with an estoppel imposed as a remedy by an arbitrator seized of a grievance in virtue of a collective agreement. No aspect of this remedy transforms it into a question of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” within the 268 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

meaning of Dunsmuir (para. 60). It therefore cannot be said to fall within that established category of question — nor any other — subject to review for correctness pursuant to Dunsmuir. 58 In A.T.A., the tribunal had interpreted a statutory provision requiring an inquiry to be completed within 90 days of the filing of a complaint, unless the commissioner notified the parties that he was granting an extension. The extension was not granted until a significant period of time after the expiry of the time limit. In commenting on the nature of the question regarding the tribunal’s interpretation of the timeline in the legislation, Rothstein J. stated (at para. 32): [The timelines question] is not a question of central importance to the legal system as a whole, but is one that is specific to the administrative regime for the protection of personal information. The timelines question engages considerations and gives rise to consequences that fall squarely within the Commissioner’s specialized expertise. The question deals with the Commissioner’s procedures when conducting an inquiry, a matter with which the Commissioner has significant familiarity and which is specific to [the Personal Information Protec- tion Act, S.A. 2003, c. P-6.5]..... 59 Two examples wherein a question of jurisdiction was found to arise are: • The question in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.) (cited with approval in Dunsmuir at para. 60), was whether a labour arbitrator (who is usually found to have significant expertise) was bound by the findings arising out of a criminal conviction against an employee who had then had his employment terminated. Arbour J., for the majority, found that the arbitrator’s decision rested on his analysis of “complex common law rules and of conflicting jurisprudence” that was “at the heart of the administration of justice.” She stated that “[p]roperly understood and applied, the doctrines of res judicata and abuse of process govern the interplay between different judicial decision makers” and that “[t]hese rules and principles call for a judicial balance between finality, fairness, efficiency and authority of judicial decisions” (at para. 15). She concluded that the application of those rules was outside the expertise of a labour arbitrator and must be reviewed on a standard of correctness. • In Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157 (S.C.C.), Iacobucci J., for the majority, stated that “the critical is- Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 269

sue to be determined at an arbitration hearing was whether or not the substantive rights and obligations of the Human Rights Code [R.S.O. 1990, c. H.19] are incorporated into each collective agreement over which the Board has jurisdiction” (at para. 21). He found that this was a legal question of general applicability that did not fall within the arbitrator’s core area of expertise such that, while the arbitrator could make that determination, the court could intervene if the board resolved that issue incorrectly (at para. 22). 60 Macaulay and Sprague state (at p. 28-46.80(25)): Questions of central importance to the legal system as a whole are, generally, questions going to legal principle — such as bad faith, estoppel, retroactivity, and so forth. A simple question of statutory interpretation does not constitute a question of law of central importance to the legal system as a whole..... The nature of “questions going to legal principle” might be even more limited, given Fish J.’s comments regarding estoppel in Nor-Man (at para. 57 herein).

(3) Interpreting “Home Statutes” 61 The finding that a question involves the interpretation of a home statute or a statute that is closely connected to the adjudicator’s functions is, in some ways, the flip side of the determination of true jurisdiction, as both involve the interpretation of statutes. Where the adjudicator is interpreting its home statute or a statute that is closely connected to its functions, the courts since Dunsmuir have generally refused to find that the matter is one of true jurisdiction. 62 The interpretation of legislated cost/expense payment provisions by tribunals has been the subject of three post-Dunsmuir decisions of the Supreme Court of Canada, being Kerry (Canada) Inc., Smith and Mowat. All could be distinguished from the current matter in that, in each, the application for judicial review arose following a final determination of the underlying issue, rather than as an interim matter, and all questioned the interpretation of the applicable statutory cost/expense payment provisions — i.e., what amounts were and were not included or permitted to be paid within the specific wording of the legislation. In Kerry (Canada) Inc., the tribunal found that, according to its legislation, it could not order that costs be paid from the pension trust fund. In Smith, the issue was whether “costs” included the costs of an earlier, aborted arbitration and an earlier court proceeding. In Mowat, the issue was whether the ability 270 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

to compensate for “expenses incurred by the victim” included an award for legal costs. 63 Despite the factual differences between those cases and this, those decisions are of assistance because they dealt with the interpretation of a statutory cost/expense payment provision in the home statute of the tribunal. Mowat is of particular assistance because it arose in the context of a finding by the Canadian Human Rights Tribunal, about which LeBel and Cromwell JJ., for the court, noted (at para. 19): ...... [R]eviewing courts have not shown deference to human rights tribunals in respect of their decisions on legal questions. In the courts’ view, the tribunals’ level of comparative expertise remained weak and the regimes that they administered were not particularly complex [citations omitted]. 64 This is similar to the finding of the majority in Rebel Holdings, relying on Q. at paras. 31-32, regarding the expertise of the LVAC (at para. 139): The [LVAC] is a tribunal created by the Act for the sole purpose of determining due compensation to owners whose property is expropriated. It is comprised of individuals appointed by Order in Council. The legislative purpose of the [LVAC] is to resolve disputes about due compensation. It is not to create public policy. Thus, this speaks to less, rather than more deference..... 65 It is in this context that LeBel and Cromwell JJ. stated in Mowat that, given the recent developments since Dunsmuir and its emphasis on deference to administrative tribunals even on questions of law, it was necessary to consider whether all questions of law must be decided on a standard of correctness. They noted that, “if the issue relates to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference” (at para. 24). They then went on to state (at paras. 25-26): The question of costs is one of law located within the core function and expertise of the Tribunal relating to the interpretation and the application of its enabling statute (Dunsmuir, at para. 54). Although the respondent submitted that a human rights tribunal has no particular expertise in costs, care should be taken not to return to the formal- ism of the earlier decisions that attributed “a jurisdiction-limiting la- bel, such as ‘statutory interpretation’ or ‘human rights’, to what is in reality a function assigned and properly exercised under the enabling legislation” by a tribunal (Counsel of Canadians with Disabilities v. Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 271

VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 96, per Abella J.). The inquiry of what costs were incurred by the complainant as a result of a discriminatory practice is inextricably intertwined with the Tribunal’s mandate and expertise to make factual findings relating to discrimination (see Lévis (City) v. Fraternité des policier de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, at para. 112, per Abella J., Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 76, per LeBel J.). As an administrative body that makes such factual findings on a routine basis, the Tribunal is well positioned to consider questions relating to appropriate compensation under s. 53(2). In addition, a decision as to whether a particular tribunal will grant a particular type of compensation — in this case, legal costs — can hardly be said to be a question of central importance for the Canadian legal system and outside the specialized expertise of the adjudicator. Compensation is frequently awarded in various circumstances and under many schemes. It cannot be said that a decision on whether to grant legal costs as an element of that compensation and about their amount would subvert the legal system, even if a reviewing court found it to be an error. .... As the tribunal in Smith, the federal Tribunal in this case was interpreting a provision in its home statute that necessitated a fact-in- tensive inquiry and afforded the Tribunal a certain margin of discretion. 66 In each of those cases, the court held that the cost issue came within the category of the tribunal interpreting its home statute and did not rise to the level of a question of true jurisdiction. 67 In A.T.A., the issue related to the interpretation of a time limit in the tribunal’s home statute. The hearing was not completed within the time set out in the statute and the time limit was not extended until long after it had expired. It was argued on judicial review that the commissioner had lost jurisdiction when the time limit expired without being extended. As Rothstein J. stated, “the timelines question is neither a true jurisdictional question nor any other type of question of law that attracts a correctness standard” (at para. 49). In the result, he held that the commissioner was interpreting the home statute and, therefore, his decision was to be reviewed on a standard of reasonableness.

Conclusion — Standard of Review 68 The first question is whether this ground of appeal raises a true question of jurisdiction or vires as that has been interpreted post-Dunsmuir. As we have seen, those true questions of jurisdiction, if they still exist, 272 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

are narrow and will be exceptional. They relate to “the authority to decide” an issue, which will include the question of whether the agency actually has a power, but will not include the issue of why and how that power was exercised. In other words, a determination of the extent or the parameters of a grant of authority is not a jurisdictional issue for the purposes of determining the standard of review. 69 Determining the nature of the issue or question is key to determining whether it raises a question of true jurisdiction. This ground of appeal can be seen from two perspectives — that dealing with costs (Russell Inns’ perspective) and that dealing with the granting of an interim order (Manitoba’s perspective). 70 If viewed as a question of costs, the granting of costs is clearly dealt with in the Act, which would indicate that the ground relates to the interpretation of the home or related statutes rather than to true jurisdiction. If viewed as a question of the granting of interim orders, there is nothing in the Act regarding interim orders, which would indicate that the ground may relate to true jurisdiction rather than to the interpretation of the home or related statutes. However, in determining the true nature of the question, close attention must be paid to the admonition adopted by Bas- tarache and LeBel JJ. in Dunsmuir that “reviewing judges must not brand as jurisdictional issues that are doubtfully so” (at para. 59). 71 If one accepts Manitoba’s characterization of the question as the power to grant an interim order, the interim order at issue is about costs, so that it still relates to the interpretation of a power in the home or a related statute. As the LVAC has the statutory power to grant costs, the question of the authority to order the payment of those costs on an interim basis must still relate to the “how and why” of the exercise of a statutory power, taking it out of the realm of a question of true jurisdiction. Thus, I find that this ground of appeal does not raise a question of true jurisdiction or vires. 72 The second question is whether this ground of appeal raises a question of general law of central importance to the legal system and outside the adjudicator’s expertise. As we have seen from Mowat, questions of proof, procedure and remedial authority are issues of broad import that come before administrative tribunals and raise questions of law, but not all such questions rise to the level of general importance to the legal system as a whole or fall outside the tribunal’s area of expertise. Likewise, in A.T.A., the interpretation of the timeline for granting an extension of an inquiry was categorized as a procedural issue specific to the adminis- Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 273

trative regime and not a question of central importance to the legal system as a whole. 73 This ground of appeal in this case raises a question of procedure and remedial authority, which is clearly a question of law. It is, however, limited in scope and effect to the granting of relief under the Act in relation to an expropriation of property. It could not be said that it goes to any legal principle underlying the legal system, and it certainly could not be said that it raises any issue of general importance to the legal system as a whole. It is an issue of the interpretation of the provision of a specific statute and nothing more. Thus, this ground of appeal does not raise a question of general law of central importance to the legal system. 74 Having determined that this ground of appeal does not raise either a question of true jurisdiction or vires, or one of central importance to the legal system as a whole, the result is that it raises a question about the interpretation and application by the LVAC of its home statute or a statute closely connected to its function, with which it has particular familiarity. As was stated in Dunsmuir at para. 54, and confirmed in A.T.A. at para. 30, this category of question is normally to be determined on the standard of review of reasonableness. A.T.A. further says that a review of the interpretation by a tribunal of its own statute or statutes closely connected to its function should be presumed to be subject to the standard of reasonableness (at para. 34). 75 Manitoba has failed to convince me (as it has the burden to do — A.T.A. at para. 39) that reasonableness is not the correct standard. There- fore, I find that the standard of reasonableness is the standard that should have been applied to the issue in this ground of appeal.

Summary — Standard of Review 76 It is clear that, as a result of the evolution of the principles of judicial review set out in Dunsmuir, the focus of the second step of the standard of review analysis has changed from the application of the four factors that used to comprise the pragmatic and functional test to conducting a summary analysis based on the seven categories of questions set out first in Dunsmuir and later A.T.A.. It is also clear that the Supreme Court has significantly limited (if not abolished, for all practical purposes) the category of true questions of jurisdiction, leaving the review of a decision by an administrative entity interpreting its home statute or statutes closely connected with it to be conducted on the standard of review of reasonableness, unless the question raises a constitutional issue, is a question of 274 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise or relates to the jurisdictional lines between two or more specialized tribunals. 77 These are significant changes that have come about since this court released its decision in Rebel Holdings, requiring a fresh determination of the applicable standard of review. Applying these principles as they have evolved, and for the reasons set out above, I am satisfied that the appropriate standard of review for the issue in this ground of appeal is one of reasonableness. Thus, I find that the application judge erred in law in adopting and applying the standard of review of correctness to his review of this issue. 78 Given that the application judge did not apply the correct standard of review, this court must correct the reviewing judge’s error, substitute the appropriate standard of administrative review, and assess the LVAC’s decision on the basis of the appropriate standard, being that of reasonableness.

(iii) The Reasonableness Test 79 The reasonableness standard was explained by Bastarache and LeBel JJ. in Dunsmuir (at paras. 47, 49): ... [C]ertain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribu- nals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers..... In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 275

80 In Khosa, Binnie J., for the majority, stated (at para. 59): .... Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. (See, also, Guinn at paras. 30-31 and Macaulay and Sprague at p. 28-42.) 81 The application of the reasonableness test requires that the reviewing court examine the tribunal’s reasoning and outcome to see whether the tribunal’s finding or conclusion comes within the set of rational outcomes that are defensible with respect to the facts and the law; that is, whether there is any line of analysis within the reasons that could adequately support the decision. If there is, then the decision is reasonable, even if a different line of analysis would lead to a different result. It is an error to examine the reasons to determine whether there are sufficient errors to render the decision unreasonable. (See Macaulay and Sprague at p. 28-42, footnote 73.14.) 82 Given that the application of the reasonableness standard of review requires an examination of the decision under review and its supporting reasons, there must be something to examine. The difficulty with the current case is that the reasons for decision issued by the LVAC do not contain any analysis to support or explain its decision. The decision contains one short paragraph of some of the history of the proceeding, a second short paragraph listing the information that was forwarded to it and a third paragraph containing its order. 83 The lack of analysis by the LVAC was not commented upon by either of the parties at the review hearing, or by the application judge. That said, once the application judge determined that the applicable standard of review was correctness, his task was to conduct his own analysis to determine whether the LVAC’s decision was correct, and not to examine the reasons and analysis of the LVAC. Further, neither of the parties raised the lack of analysis in their arguments on this appeal. 276 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

(iv) Lack of Reasons 84 In A.T.A., the argument that the adjudicator had lost jurisdiction was not raised during the adjudication, so the adjudicator did not address it at all in his reasons. Rothstein J. stated that the lack of reasons did not transform what would otherwise be a reasonableness standard into one of correctness (at para. 50). While acknowledging that it may be necessary to remit the matter to the decision-maker for reasons, he stated that the resultant delay would frustrate the goal of an early resolution, which should be avoided “when a reasonable basis for the decision is apparent to the reviewing court” (at para. 55). He had earlier indicated support for the proposition that reasonableness requires that the courts give attention to “the reasons offered or which could be offered in support of a decision” (at paras. 52-53) (emphasis added). 85 In A.T.A., the commissioner and the adjudicators had considered the question of the timing of an order extending the inquiry on other, earlier occasions and had, on those occasions, issued written reasons with supporting analysis. Rothstein J. stated that a review of those reasons could form the basis of the reasonableness analysis (at para. 56). 86 Abella J., for the court, expanded upon this in N.L.N.U., wherein a labour arbitrator gave a 12-page decision which was found by the reviewing judge to have been insufficient and, therefore, unreasonable on review. She stated (at para. 18): Evans J.A. in Canada Post Corp. v. Public Service Alliance of Can- ada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57, [2011] 3 S.C.R. 572) that Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review” (at para. 164). He notes that “perfection is not the standard” and suggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribu- nal’s reasons adequately explain the bases of its decision” (para. 163). I found the description by the Respondents in their Factum particularly helpful in explaining the nature of the exercise: When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum — the result is to be looked at in the context of the evidence, the parties’ submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para. 44] Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 277

87 This court had the opportunity to consider the question of the requirement for reasons in 2127423 Manitoba Ltd. v. Unicity Taxi Ltd., 2012 MBCA 75, 280 Man. R. (2d) 292 (Man. C.A.), wherein the Taxicab Board refused to provide reasons for its decision to grant taxicab licences to London Limos. That matter proceeded by way of appeal rather than as a judicial review, but the comments of this court are of assistance. 88 Steel J.A., for the court, stated (at paras. 49-51): .... A simple order issued by the Board may be sufficient to fulfill the purpose of reasons and admit of effective appellate review depending on the context of the proceedings that gave rise to the order. Context includes many things, but most certainly includes the nature of the issues raised before the tribunal, the evidence adduced and the submissions made. In this case, context would include the information contained in the disclosure summary, the information made public at the Board hearing and, in part, confidential business information. It would also include the fact that the question being dealt with was one of economic regulation rather than, for example, one of professional discipline. As well in this case, the entire proceedings were recorded and tran- scribed. The test applied by the Board for considering whether to grant new licences is clear from the transcript of the hearing. 89 In summary, if the decision of an administrative body is being reviewed on a standard of reasonableness and that body either gave no reasons or gave inadequate reasons, the reviewing court has an obligation to attempt to determine the reasonableness of the decision based on the available information. This could include the evidence, the record, the submissions before the administrative body, the transcript of the proceedings, if one is available, any relevant reasons given by that body in prior proceedings, the question being dealt with, any reasons that were given and the outcome.

(v) Information Available to the LVAC 90 In requesting a pre-hearing conference, Russell Inns advised the LVAC that the issue in dispute was Manitoba’s refusal to pay Russell Inns’ full interim accounts because Manitoba had concerns about some of the amounts charged. When the parties met with the three commissioners on December 18, 2009, each set out its position, Manitoba stating that it was of the view that the accounts were unreasonably high and Russell Inns stating that the accounts should be paid in full on a without prejudice basis. The commissioners took a break to examine the accounts 278 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

and then returned and stated that Manitoba should pay the full accounts, as submitted, on a without prejudice basis and that the LVAC would determine the reasonableness of the accounts when the compensation had been determined. This decision was confirmed in writing on December 23, 2009. 91 By letter to the LVAC dated February 25, 2010, Manitoba took the position that the December 23, 2009 decision was only a recommendation and not an order since the LVAC was not in a position to make an interim ruling on the reasonableness of the accounts, this because it could only determine costs pursuant to s. 15(7) of the Act, which only arises once due compensation of the claim has been resolved. It said that it would pay all accounts that it deemed to be reasonable and acknowledged its obligation to pay interest on any amounts that were withheld and ultimately found to be reasonable. 92 Russell Inns contacted the LVAC by letter dated March 4, 2010, to object to Manitoba’s position. They referred the LVAC to its decision in Atkins v. Manitoba (2002), 78 L.C.R. 155 (Man. L.V.A.C.), taking the position that it had made an order for the interim payment of costs in that case. They also referred to a complaint on the question of the payment of interim costs that had been referred to the Minister of Infrastructure and Transportation on February 22, 2008, pursuant to the rules of the LVAC, and the Minister’s response dated April 25, 2008. 93 Manitoba responded by letter dated March 17, 2010. It stated that its position was consistent with the Minister’s letter of April 25, 2008, in which the Minister said that “reasonable consulting costs reasonably incurred” would be paid on an interim basis. Its position was that the comments of the LVAC in Atkins were obiter dictum and did not constitute an order that could have been appealed (contrary to the suggestion by Russell Inns). It stated that, according to s. 15(6), it was required to apply a test of reasonableness to the accounts that were submitted to it and only pay what it found to be reasonable. If Russell Inns disagreed, they could have the accounts reviewed under s. 15(7), following the determination of compensation. Finally, it expressed concern about paying all costs as submitted on a “no questions asked” basis and having to recover any excess at a later date. 94 By letter dated March 22, 2010, Russell Inns responded to Mani- toba’s position, taking issue with Manitoba’s interpretation of the Atkins decision without specifying how its comments were wrong. Russell Inns Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 279

noted that Manitoba’s position in its letter of March 17, 2010, was essentially the same as its position on December 18, 2009. 95 On April 13, 2010, the LVAC issued very short written reasons for decision, wherein it referred briefly to the pre-hearing on December 18, 2009, and its following decision, identified the letters that it had received from the parties following that decision and then restated its position by repeating, as an order, the decision that it had given in writing on De- cember 23, 2009. 96 It is clear that the parties were each advancing a different argument in support of its position. Russell Inns was relying on the LVAC’s decision in Atkins, the Minister’s letter of April 25, 2008, and the decisions of the Nova Scotia Court of Appeal in Nova Scotia (Attorney General) v. Wil- liams (1995), 144 N.S.R. (2d) 19 (N.S. C.A.), and L.E. Powell Properties Ltd. v. Nova Scotia (1995), 144 N.S.R. (2d) 93 (N.S. C.A.), to support their request for the payment of full costs on an interim basis, while Manitoba was arguing that the statute did not allow for the granting of interim costs by the LVAC and did not require the payment of costs other than reasonable costs reasonably incurred.

Atkins 97 In Atkins, a decision released in 2002, the only issue before the LVAC was the determination of the date from which the authority’s obligation to pay interest on an unpaid appraisal account should begin to run. At that time, no payments were being made for appraisal, legal or other costs until after the final compensation had been set either by agreement or by the LVAC. In its reasons, in addition to dealing with the calculation of interest, the LVAC addressed the two issues of whether any costs should be paid by an expropriating authority (authority) before a final determination of the compensation and, if so, when to address the question of reasonableness. In as much as the LVAC had already determined the final compensation, its comments on these last two issues were obiter dictum. That notwithstanding, the LVAC did go on to make the following statement (at pp. 157-58): This Commission agrees with Mr. Hacault that an expropriating entity should make interim advances to cover consulting costs when provided with accounts (invoices) in usual form..... It seems reasonable to the Commission to impose on a claimant an obligation to put such accounts in the hands of the expropriating entity as soon as possible and that an expropriating entity should not be 280 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

liable to pay interest on unpaid accounts, of which it has not been made aware. The Commission considered Mr. McFetridge’s point that an expropriating entity has an obligation to assess the reasonableness of such accounts and such an assessment may not be able to be made until after the due compensation otherwise payable has been determined. In the opinion of the Commission this reality does not impact upon an expropriating entity making interim advances to cover consulting costs incurred. An expropriating entity can challenge the reasonableness of such costs, as is done now, after the Commission has rendered its decision on the due compensation otherwise payable, and, if the Commission agrees, take its decision into account in the payment of the remaining due compensation payable. [emphasis added] 98 While this decision sets out the LVAC’s position regarding the interim payment of costs, albeit in the form of obiter dictum, it does not contain any analysis to support its position.

The Minister’s Letter of April 25, 2008 99 The matter of the interim payment of costs came up again in 2008, when counsel for a landowner advised the LVAC that Manitoba was still not complying with its decision in Atkins and asked that the matter be referred to the Minister pursuant to Rule 23 of the LVAC’s rules. Rule 23 permits the LVAC to refer “allegations of improprieties or complaints” to the Minister. In his letter to the Minister dated February 22, 2008, the chairman of the LVAC referred to Atkins and stated that “[t]he Commission has no way of enforcing its orders, unlike the Court of Queen’s Bench with its contempt jurisdiction.” He suggested that the Minister could either direct the lawyers acting for the Province to approve the payment of interim advances for consulting costs properly submitted or wait for a landowner to apply to the Court of Queen’s Bench. 100 In his response to the LVAC dated April 25, 2008, the Minister said, “I am pleased to advise that the government of Manitoba accepts the view expressed by the Commission that ‘an expropriating authority should make interim advances to cover consulting costs when provided with accounts (invoices) in usual form.’” However, he went on to say that the Government of Manitoba would “henceforth make interim payments on reasonable consulting costs reasonably incurred in the expropriation process” (emphasis added). Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 281

101 Manitoba’s position in this case is that it is making those interim payments for reasonable consulting costs, reasonably incurred, consistent with the Minister’s directions.

Williams and Powell 102 In both of these cases, the Nova Scotia Court of Appeal was dealing with the interpretation of ss. 35(1) and 52 of the Expropriation Act, R.S.N.S. 1989, c. 156. In Williams, the authority had taken the position that it had no obligation to make any payments towards costs until after there had been a final determination of the reasonableness of those costs under s. 52. In Powell, the authority had paid that portion of the interim costs that it determined were reasonable pursuant to s. 35(1), taking the position that the payment of any further amount would have to await a determination of reasonableness after compensation had been determined under s. 52. 103 In both cases, the Nova Scotia Court of Appeal held that the legislation had two separate cost provisions: s. 35(1), which dealt with the payment of costs incurred prior to the institution of proceedings and was for the purpose of facilitating settlement; and s. 52, which dealt with the determination of costs and the reasonableness of those costs after the determination of the compensation by the authority. While the wording of ss. 35(1) and 52 could be clearer, it is easily open to find that s. 35(1) requires that the costs referred to therein are to be paid on an interim basis before the owner is in the position to have costs determined under s. 52. Both courts concluded that any reading that required a delay in the payment of the costs referred to in s. 35(1) until after there could be a determination of reasonableness under s. 52 would render s. 35(1) redundant and without meaning, which offended basic principles of statutory interpretation. 104 The court in Williams found that s. 47(1) of the Nova Scotia legislation stated that the board “shall determine any compensation in respect of which a notice has been served upon it... and... determine any other matter required by this or any other Act to be determined by the Board” (at para. 27). The court found that, by implication, the enforcement of s. 35(1) fell within the jurisdiction of the board under s. 47 and that, as a result, the board was acting within its jurisdiction in ordering that the s. 35(1) costs be paid forthwith. The Act has no equivalent to either ss. 35(1) or 47(1). 282 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

105 Of note is the fact that these cost provisions in the Nova Scotia legislation were repealed in 1996 and replaced by a significantly different cost regime in which costs are payable only upon settlement or final adjudication of compensation (s. 52(10)). (See John A. Coates, Q.C. & Ste- phen F. Waqu´e, New Law of Expropriation, looseleaf (Toronto: Cars- well, 1986), vol. 2 at 28-74 - 28-75, 28-82 - 28-83.) 106 Thus, I am satisfied that, due to significant differences in the legislation, the two decisions from Nova Scotia do not assist in the interpretation of the Act.

(vi) Statutory Interpretation of Sections 15(6) and (7) 107 Rothstein J. stated, in A.T.A., that a determination of reasonableness requires that the courts give attention to “the reasons offered or which could be offered in support of a decision” (at paras. 52-53) (emphasis added). 108 Given that there were no reasons offered by the LVAC, it is necessary to look at the reasons that could be offered, which requires the interpretation of the statutory provisions at issue. This must be done in the context of the questions that have been raised, being: • whether the LVAC has the power to make any interim order for the payment of costs; and • whether the authority can limit the interim payment of costs to those it believes are reasonable and reasonably incurred, subject to the later determination of the reasonableness of those costs by the LVAC under s. 15(7) and payment (with interest) of any additional costs found to be reasonable, or whether the authority must pay the full costs as the accounts are submitted, and apply to the LVAC for a determination of the reasonableness of those costs under s. 15(7), with any amounts found unreasonable being re- claimed from the owner. 109 Any decision dealing with statutory interpretation must begin with the modern principle, which now appears in Ruth Sullivan’s text, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008), and was adopted by the Supreme Court of Canada as the preferred approach in Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.). The modern principle states Sullivan at (p. 1): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 283

ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 110 As is noted by Sullivan, “[t]he modern principle has been cited and relied on in innumerable decisions of Canadian courts” (at p. 1). She goes on to state that “[t]he chief significance of the modern principle is its insistence on the complex, multi-dimensional character of statutory interpretation” (at p. 1).

The Object or Purpose of the Act 111 The Act deals with the expropriation of property, which, according to Eric C. E. Todd, The Law of Expropriation and Compensation in Can- ada, 2d ed. (Scarborough: Carswell, 1992) at 1, is the compulsory acquisition of property, usually real property, by the Crown or one of its authorized agencies. (See also the Act, s. 1(1).) He states that “[m]ost Canadian expropriation statutes provide for fair procedures and generous compensation. The implicit basic minimum objective of the law is to make an expropriated owner economically whole” (at p. 2). Some of the principles that are relevant to the interpretation of an expropriation statute are: • the power of an expropriating authority should be strictly construed in favour of those whose rights have been affected; • expropriation legislation is remedial in nature, so it must be given a broad and liberal construction, consistent with its purpose; • substance, not form, is the governing factor; and • there is a presumption that, whenever land is expropriated, compensation will be paid. (See Todd at pp. 25-26 and Dell Holdings Ltd. v. Toronto Area Transit Operating Authority, [1997] 1 S.C.R. 32 (S.C.C.) at paras. 20-23.) 112 The Supreme Court of Canada has recently considered the purpose of expropriation legislation in Smith. That case dealt with the interpretation and application of the cost provisions of the National Energy Board Act (NEBA). There are differences between the NEBA and the Act, including that “the principle of full indemnification appears explicitly in s. 75 of the NEBA” (at para. 53), while the same provision does not appear in the Act. Notwithstanding that difference, I am satisfied that Fish J.’s follow- 284 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

ing comments are relevant to the interpretation of the Act (at paras. 55- 56): Moreover, the NEBA operates within the broader context of expropriation law, both federal and provincial. As early as 1949, this Court acknowledged the vulnerable position of expropriated owners. In Diggon-Hibben, Ltd. v. The King, [1949] S.C.R. 712, at p. 715, Rand J. (Taschereau J. concurring) stated that no one should be “victimized in loss because of the accident that his land [is] required for public purposes”. In the same case, Estey J., citing with approval the earlier reasons of Rand J. in Irving Oil Co. v. The King, [1946] S.C.R. 551, affirmed the right of an expropriated person under the relevant clause “to be made economically whole” (p. 717; see K. J. Boyd, Expropri- ation in Canada: A Practitioner’s Guide (1988), at pp. 144-45). More recently, in Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32, at paras. 20-22, Cory J. (speaking for six of the seven-member panel) reaffirmed the principle of full compensation..... (See, also, the Report of the Ontario Law Reform Commission on The Basis for Compensation on Expropriation, (1967) (the Ontario Report).) 113 The victimization of the owner can also arise as a result of the timing of the reimbursement for the professional fees. The issue was stated as follows in Williams (at para. 15): .... [Section 35(1), which was found to permit the interim payment of costs] is also an attempt by the legislature to redress the inequality between the positions of the expropriating authority, with its rela- tively unlimited resources, and individuals otherwise unable to afford expensive professional services..... 114 This problem was identified by Chairman Harvey in his letter of Feb- ruary 22, 2008, to the Minister, wherein he stated: Occasionally, expropriation compensation negotiations, and, if necessary, proceedings before the Commission to determine the due compensation payable, take a long time, many, many months, even years. Delaying the payment of consulting costs to a period of time after the Commission has made its decision is a hardship for land- owners and their consultants (appraisers, engineers, accountants, lawyers, etc.). 115 Even though Manitoba has stated that it will pay interest on any unpaid amount later found to be reasonable, the owner or professional who has to wait for payment may be ill-equipped to carry that cost for a Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 285

lengthy period of time, not knowing whether or not payment will eventually be made. 116 To meet the objects of the Act, being to avoid victimizing the owner and to provide full indemnification, it would be more consistent with those objects to interpret ss. 15(6) and (7) so as to provide for payment of the owner’s costs as early and as completely as possible.

The Intention of the Legislature 117 There were several studies undertaken and reports written in the mid- 1900s, including one by the Manitoba Law Reform Committee (a copy of which cannot now be located), all with the view of responding to complaints that the expropriation process in each Canadian jurisdiction was unwieldy and unfair to the owners. (See Ian MacF. Rogers, Q.C., “New Expropriation Acts Reviewed” (1964) 7 Can. Bar J. 29 and Todd at pp. 2-3, 8-9.) The lack of criteria for determining compensation and the entitlement to costs were other outstanding issues. 118 The Ontario Report in 1967 and the resulting expropriation legislation in Ontario were influential in shaping later amendments in Manitoba. That report stated that the standard for compensation was that of full indemnity to the owner, but that he was not entitled to a windfall at public expense. It further stated that, in finding a solution that would provide full indemnification, the statute should ensure fairness to both parties, but that the interests of the authority should not prevail over those of the owner. Finally, it recognized that, to achieve fairness, it would be necessary to address the unfairness due to the power and financial imbalance and the inequality of bargaining positions arising from the vast difference in resources between the government and a private citizen. (See pp. 9- 12.) 119 On the question of legal and appraisal costs, the Ontario Report noted that the legislation then in effect usually only provided for party and party costs, rather than full compensation, and then not for arbitration or settlement, but only if the matter went to court. In keeping with its general recommendation of full indemnity to the owner, it recommended that an owner be entitled to full, reasonably incurred legal and appraisal costs, subject to some exceptions. It recommended that legal costs be determined on a solicitor-client basis and appraisal costs at the going rates; that the tribunal retain the discretion to deprive an owner of costs where the amount awarded is less than the amount offered; and that the 286 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

limitation for appraisal costs on awards under $1,000 be retained (at p. 40). 120 In 1970, Manitoba enacted The Expropriation Act, S.M. 1970, c. 78 (later R.S.M. 1987, c. E190, the predecessor to the current Act), to address the criticisms in these many reports. In responding to questions from the opposition following the presentation of the bill for second reading, the Minister of Government Services stated: I agree with [Mr. Molgat] that we should do all in our power to see that the party whose property is under expropriation gets a fair deal and that the expropriating authority is fair and reasonable. That should be the intent of the application of the Act and I think, Mr. Speaker, that my honourable friend would agree with me that that is really the reason, after many years of discussion, for most of the suggested changes within the Act. 121 These comments relate to the entire bill, and no mention was made of the owner’s entitlement to costs. (See Manitoba, Legislative Assembly, Debates and Proceedings, 29th Leg., 2nd Sess., vol. XVII, No. 135 (29 June 1970) at 3423 (Hon. Russell Paulley).) 122 During consideration by the Committee of the Whole on July 17, 1970, concern was expressed about the expense to an owner of retaining legal counsel. The Minister of Finance stated, “This Act does provide that the costs shall be included in compensation when the court deems that it is proper so to do, so that that kind of protection was considered and accepted.” (See Manitoba, Legislative Assembly, Debates and Pro- ceedings, 29th Leg., 2nd Sess., vol. XVII, No. 152 (17 July 1970) at 3852 (Hon. Saul Cherniack, Q.C.).) 123 In the 1970 legislation, there was a two-step procedure for determining compensation; one involved a hearing before the LVAC and the other was a hearing in court. Where due compensation had been agreed, the authority was required to pay to an owner “an amount equal to the legal, appraisal and other costs reasonably incurred by the owner for the purpose of determining the due compensation” (s. 28(1)(e)). If there was no agreement on compensation, either party could apply to court to have compensation determined. In that case, the owner was entitled to reasonable costs and expenses, and court costs on a party and party basis, if the authority’s offer was 90 per cent, or less, of the compensation determined by the court, but costs were in the discretion of the court if the authority’s offer was more than 90 per cent of the compensation determined by the court (ss. 43(1) and (2)). This legislation was amended in Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 287

1980 (see S.M. 1980, c.56, s.16) to provide for costs related to proceedings at the LVAC. With that amendment, costs related to a proceeding before the LVAC were in the discretion of the court (s. 43(3)). 124 In 1993, the government amended the Act to eliminate any application to court to determine compensation and related costs and, instead, vested exclusive jurisdiction for those matters in the LVAC (other matters still remained to be determined by the court). As part of that change, s. 15, dealing with the proceedings before the LVAC, was amended, including amendments to ss. 15(6) and (7), while s. 28(1)(e), regarding the entitlement to costs in the event of a settlement, was repealed, effectively becoming part of s. 15(7). The amendments to s. 15 that were enacted in 1993 remain in effect today. 125 The legislature’s goals in passing the 1993 amendments were stated to be twofold: to reduce the length of time taken to resolve claims; and to reduce the costs to the authority by eliminating the cost of the second proceeding and of the interest that accrued on the compensation while the matter remained unresolved. (See Manitoba, Legislative Assembly, Debates and Proceedings, 35th Leg., 4th Sess., vol. 51 (28 April 1993).) 126 The intention of the government is also clear from the 2008 complaint by the LVAC to the Minister and his response. It was clearly put to the Minister that the problem was the hardship to an owner who was required to wait until after the determination of the compensation for the property before receiving compensation for the costs incurred in the process and that the LVAC was of the view that the expropriating authority should pay the full interim costs on a without prejudice basis and have the reasonableness determined at a later date. The Minister rejected this position in favour of requiring the authority to pay only reasonable costs reasonably incurred on an interim basis. 127 On the question of the LVAC having the power to make interim orders for costs, interpreting the legislation to permit such applications would result in additional proceedings, contrary to the government’s intention of reducing the number of proceedings. Adding such a further step would both delay a final resolution of the matter and increase the costs. 128 If the LVAC were permitted to consider the reasonableness of the costs at that interim hearing, that would complicate the procedure, further increasing both the time and cost of resolving claims. In making an assessment of reasonableness, the LVAC would have to look at many facts and factors. As regards an appraisal report, the LVAC should look at the 288 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

qualifications and experience of the appraiser, the time spent, the work done and steps taken, the hourly rate charged, the complexity of the appraisal, the amount of the compensation awarded/agreed upon and the quality of the report. Similar factors would be relevant to legal fees, and, in addition, the LVAC would have to determine whether either the owner or the authority delayed proceedings or undertook steps that were unnec- essary. (See Todd at pp. 518-25.) This would not be a simple process, and many of the assessments could only finally be made after a final determination as to the amount of compensation to which the owner was entitled. 129 Interim decisions would be open to being reargued after the determination of the final costs, in light of the findings of the LVAC regarding the acceptance and utility of expert reports and the final amount of compensation. This further cost would be inconsistent with the government’s goals, as stated in 1993, of reducing both the length of time to complete the expropriation process and the costs to the authority. 130 If the legislation were read to require the authority to pay full costs and seek a determination by the LVAC of the reasonableness of those costs after compensation was determined, that interpretation would be inconsistent with the Minister’s direction in April 2008. 131 On the other hand, interpreting the legislation to require the interim payment of costs, either with or without an interim determination of the reasonableness of those costs, would go the farthest to meeting the object of the Act of reducing the victimization of the owner by providing the highest reasonable indemnification at the earliest date.

The Scheme and Wording of the Act 132 I will now look at the scheme of the Act. The cost provisions that are at issue, being appraisal, legal and other costs related to determining the compensation payable, are found in ss. 15(6) and (7) of the Act. There is no other provision in the Act that gives the LVAC the ability to order or determine these costs and no provision to order the interim payment of any costs. Further, unlike s. 47(1) of the Nova Scotia legislation, there is no provision in the Act that grants any residual authority to the LVAC to determine “other matters that may arise,” such as an application for interim costs or the determination of the reasonableness of costs on an interim basis. 133 Section 15 permits an authority or an owner to apply to the LVAC for a determination of the compensation payable, but the right to do so only Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 289

arises after there has been an offer of compensation by the authority under s. 16 of the Act. Section 15 anticipates that a hearing will be held (s. 15(2)); that, subject to the outcome of an appeal, the amount of compensation that was certified will be final and binding (s. 15(3)); and that the LVAC may vary the amount certified, if new evidence becomes available within 30 days of the certificate (s. 15(5)). Sections 15(6) and (7), dealing with the payment and determination of costs, appear next in the legislation, which, viewed chronologically, is after there has been a final determination of compensation. 134 Looked at in the context of its placement within the legislation, ss. 15(6) and (7) relate to the determination of costs following the final determination of compensation, whether by agreement or by order of the LVAC. That placement does not suggest that s. 15(6) was intended to authorize the LVAC to order the payment of any costs at any time prior to the determination or settlement of compensation on a final basis. 135 Regarding the wording of the provisions, the LVAC’s order that the authority pay full costs on an interim basis goes against the clear wording of s. 15(6), which states that the authority shall pay “reasonable appraisal, legal and other costs that are reasonably incurred.” There is no interpretation of these words that supports the LVAC’s order that the authority must pay full costs as billed, on an interim basis, with a later review for reasonableness. 136 Section 15(7) is also clearly worded, stating that the LVAC can determine an application for costs after the amount of compensation payable under the Act has been settled or determined. It makes no provision for the LVAC to determine or deal with the costs on any basis before the final compensation has been resolved. 137 Russell Inns argue before this court that s. 15(7) does not say that costs are only payable at the end of the hearing. They take the position that the purpose of the section is to prevent interim taxations every time the authority and the owner disagree with the amount of an account that has been submitted for payment. While I would agree that that is one effect of the provision, it seems that it goes even further. Section 15(7) refers to the LVAC determining “the costs,” which would be any costs; it is not limited in its wording to determining the reasonableness of the costs. This supports the argument that the LVAC cannot make any determination of any nature regarding costs until after the final compensation has been settled or determined by the LVAC — whether to resolve reasonableness or for any other reason. 290 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

138 Finally, the LVAC ruled in this case that, “should the Commission determine that the fees charged have not been reasonable, the Province of Manitoba will be reimbursed by Russell Inns for any amount of money paid to them in excess of what is determined to have been reasonable.” The difficulty with this is that, as Manitoba argued, the LVAC has no authority in the Act to make or enforce any order for repayment. This is contrary to the power granted to other tribunals to make remedial orders. For example, the Human Rights Commission has the power to make an extensive remedial order which any party can file in the Court of Queen’s Bench, permitting it to be enforced as an order of the court. (See The Human Rights Code, C.C.S.M., c. H175, ss. 43 and 48(1).) The result of the lack of a similar provision in the Act is that, failing voluntary payment by the owner, the authority in an expropriation case would be forced to sue the owner in court to recover any of the costs found to have been unreasonable or unreasonably incurred before it could attempt to collect any amount owing. This, again, would greatly increase both the cost to the authority and the time required to finalize the matter. 139 When questioned about its ability to deduct any amount found owing by the owner from the compensation as determined by the LVAC, Mani- toba explained that the practice of the authorities is to make an advance payment of the amount that the authority was offering as compensation prior to the hearing, with a view to getting the uncontested portion of the funds into the hands of the owner as quickly as possible. If the authority prevails at the hearing as to the compensation payable, there may be nothing further owing to the owner from which any costs, if already paid on an interim basis and later found unreasonable, could be deducted. 140 While courts in other provinces have upheld an owner’s right to have costs and expenses paid on an interim basis, those decisions are based on the specific provisions of their legislation, which are quite different from that in Manitoba. (See, for example, Williams and Powell, referred to herein at paras. 102-105, and also Harbour Brick Co. v. R. (1987), 17 F.T.R. 255 (Fed. T.D.), regarding the federal Expropriation Act.) There are, to my knowledge, no other provinces with legislation sufficiently similar to the Act to permit any comparison. 141 Thus, the scheme of the Act, the placement of ss. 15(6) and (7) within the Act, and the wording of the Act do not support an interpretation that the LVAC has the authority to make any interim orders, to determine the reasonableness of costs on an interim basis, or to order that the authority pay anything other than reasonable costs reasonably incurred. Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 291

Conclusion — Statutory Interpretation of Sections 15(6) and (7) 142 It is clear that there is no provision in the Act that permits the LVAC to make any order for the interim payment of costs related to a compensation proceeding, and neither party offered any basis, outside of the wording of the Act, to support such a power. While the evolving law related to the jurisdiction of administrative tribunals may provide such a power on an inherent basis, that question was not before us. (See, for example, the comments of Abella J., speaking for herself, in R. c. Caron, 2011 SCC 5 (S.C.C.) at paras. 52-55, [2011] 1 S.C.R. 78 (S.C.C.).) 143 The only provision in the Act that is relevant to the determination of these costs by the LVAC is s. 15(7) and, under that provision, the LVAC is clearly limited to dealing with these costs only after the final compensation payable has been determined by the LVAC or settled by the parties. Its implicit decision that it could make such an order on an interim basis is not supported on any reasonable reading of the legislation. 144 Read separately from s. 15(7) (as is suggested by Russell Inns), s. 15(6) places an obligation on an authority to pay the owner’s costs, but gives no indication as to when that should occur. Given that payment could occur at either of the two junctures suggested by the parties, and possibly others, the provision appears ambiguous as to the timing of the payment. 145 Reading the provisions separately is not, however, in keeping with the modern principle of statutory interpretation, which requires that the words of the legislation be read in their entire context. In this case, this would require that s. 15(6) be read together with s. 15(7), with the result that, when read together, neither is ambiguous — s. 15(6) sets out Mani- toba’s obligation to pay costs and s. 15(7) sets out the mechanism to determine the amount payable and, also, the time of payment. This was the finding of the application judge (at paras. 44-46, 63-66 of his reasons) and is the only reasonable interpretation of these provisions. 146 While Rothstein J., in A.T.A., came to the conclusion that there was an ambiguity in the legislation in that case such that the interpretation by the tribunal was reasonable, there is no such ambiguity in the Act that would permit an interpretation giving the LVAC the authority to order the interim payment of any costs. This is because there was no indication as to the time limit for extending the inquiry in the legislation in A.T.A., whereas here, the question of the time for determining the payment of costs and the reasonableness of those costs is specifically dealt with in s. 15(7) of the Act. 292 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

147 As set out herein, there are good reasons for requiring an authority to pay costs on an interim basis, the principal reason being to avoid victimizing the owner and its experts by making them carry the costs and expenses of the expropriation until the end of the procedure. This must be weighed against the added cost and time that would be entailed by adding a process permitting an owner to apply to the LVAC for interim costs and the determination of the reasonableness of those costs. These two competing goals must be kept in mind when interpreting the legislation. 148 This problem was clearly before the Minister in 2008 and it was open to the government to amend the Act to give the LVAC the authority to make and enforce interim orders. Instead of doing so, the government’s response was to deal with the issue by way of ministerial direction, requiring the authorities to make “voluntary” interim payments of those costs that they deemed reasonable, with the owner having no recourse to challenge those interim payments until after the compensation had been determined. This choice was within the authority of the government to make, and it addresses, to some extent, the inequity without adding further, expensive and time-consuming legal procedures. 149 There is clearly a conflict between the position of the LVAC, which is of the view that an authority should pay full costs on an interim basis, and the position of the Minister, being that an authority should pay only reasonable costs on an interim basis. 150 The resolution of this conflict, based on the current legislation, lies in what is not in the legislation. The Act does not contain any provisions allowing the LVAC to make any remedial orders, and there is no provision for the enforcement of any such orders, if they could be made. As Manitoba stated, if the LVAC determines that the owner’s costs, paid on an interim basis, were unreasonable and there was an amount owing to the authority which was not paid voluntarily, the authority would have to sue the owner in court and attempt to enforce its judgment to collect back that overpayment. An authority could attempt to prevent a shortage from occurring by withholding all or a portion of the advance payment of compensation so that it would have funds from which to deduct any amount found to have been unreasonable, but this, in itself, would be inconsistent with the goal of early compensation. 151 The Minister’s decision requiring the authority to pay, on an interim basis, that portion of the costs that it determines to be reasonable and reasonably incurred is the solution that, while not perfect, best satisfies Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 293

most of the relevant factors. It goes a significant way to meeting the purpose of the Act, being that it be construed in favour of the owner whose rights have been affected and that it reduce his victimization by having a portion of his costs paid in advance. The potential victimization of the owner is further alleviated where the authority pays interest on any amount withheld and later found due to the owner. This solution provides compensation to the owner, while meeting the intention of the legislature to reduce costs by reducing interest payments on the portion of the costs that are paid upon submission to the authority. 152 Further, the Minister’s solution does not do injustice to the wording of the Act by requiring an authority to pay more than the Act requires or by forcing it to take further proceedings outside of the Act to obtain reimbursement from an owner. Such proceedings would increase costs to the authority, which is contrary to the intention of the government. In addition, the ability to pay only what it determined were reasonable costs in advance of the setting of costs would permit the authorities to continue the current practice of paying in full the amount for which it is prepared to settle the expropriation prior to a hearing in that regard, thus furthering the goal of early compensation to the owner. 153 It is true that permitting an authority to determine reasonableness on an interim basis could be used, or even misused, by it to induce more favourable settlements, resulting in the victimization of the owner, as explained in paras. 113-15 herein. This may be the type of issue that the owner should take to the LVAC for informal mediation (as was at- tempted in this case) and, if unresolved, the chairman could take the problem to the Minister by way of complaint pursuant to Rule 23 (referred to in para. 99 herein). Despite this potential problem, it is not sufficient to overcome the clear wording of the Act that only requires an authority to pay reasonable costs that are reasonably incurred. If experience proves that the authorities are abusing their power on a regular basis, the chairman has access to the Minister to take steps to resolve the problem in a more permanent way, possibly by a further ministerial direction or by changes to the legislation. 154 In summary, when the modern principle of statutory interpretation is applied to the LVAC’s interpretation of s. 15(6) of the Act requiring the interim payment of full costs, as was ordered by the LVAC, I find that it leads to an unreasonable result that is contrary to the clear wording of s. 15(6), being that an authority will be required to pay costs that may not be reasonable or reasonably incurred. The solution proposed by Mani- 294 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

toba (adopting the Minister’s 2008 directive) would result in substantial compliance with the principles of statutory interpretation, while avoiding the risk of doing an injustice to the wording and scheme of the Act. 155 Therefore, I would conclude: • that the LVAC does not have any authority or jurisdiction to make any order for the interim payment of costs; and • that there is no reasonable basis for the LVAC’s decision that the owners’ costs should be paid in full on an interim basis upon submission, with the authority being required to wait until after final compensation had been determined in order to obtain a determination of the reasonableness of the costs. 156 For these reasons, I would find that the decision of the LVAC that Manitoba was required to pay, on an interim basis, the full fees of Rus- sell Inns’ appraiser on a without prejudice basis, subject to review for reasonableness after the compensation had been resolved, was an unreasonable decision.

VII. Third Ground of Appeal: Did the Application Judge Err in Failing to Award Costs to the Owners on the Judicial Review Application in Accordance with Section 15(6) of the Act? 157 The application judge refused Russell Inns’ request that they be granted solicitor-client costs on the application for judicial review, instead awarding no costs to either party. Russell Inns have appealed that decision. 158 This ground of appeal raises two issues or grounds of appeal: (i) Did the application judge err in law in his interpretation of the law regarding costs? (ii) Did the application judge err in the exercise of his discretion by refusing to award costs on a solicitor-client basis to Russell Inns?

(i) Standard of Review 159 The standard of review of a judge’s award of costs was set out in Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), 2007 SCC 2, [2007] 1 S.C.R. 38 (S.C.C.) (at paras. 47-49): A trial judge enjoys considerable discretion in fashioning a costs award. This discretion has two corollaries. Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 295

First, a plethora of options are available to a judge when rendering a decision on costs. While the general rule is that costs follow the cause, as we have seen, this need not always be the case. Second, a judge’s decision on costs will generally be insulated from appellate review. In the past, this Court has established that costs awards should not be interfered with lightly; see Odhavji Estate [2003 SCC 69, [2003] 3 S.C.R. 263], at para. 77. But this does not mean that no decision on costs should ever be interfered with. For instance, in Okanagan [2003 SCC 71, [2003] 3 S.C.R. 371], advance costs were granted on appeal after having been denied by the trial judge. A costs award can be set aside if it is based on an error in principle or is plainly wrong: Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, 2004 SCC 9 at para. 27. In exercising their discretion regarding costs, trial judges must, especially in making an order as exceptional as one awarding advance costs, be careful to stay within recognized boundaries. [emphasis added] 160 Both parties have agreed, as do I, that the first issue is a question of law that is to be determined on a standard of correctness. The second issue engages a review of the application judge’s discretion to set costs. The standard of review for a discretionary decision is one of deference, which is a very high standard. As has been stated on many occasions, an appellate court will be justified in intervening in a trial judge’s exercise of discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice. (See, for example, Elsom v. Elsom, [1989] 1 S.C.R. 1367 (S.C.C.), at 1375, Homestead Properties (Canada) Ltd. v. Sekhri, 2007 MBCA 61 (Man. C.A.) at para. 13, (2007), 214 Man. R. (2d) 148 (Man. C.A.), and Towers Ltd. v. Quinton’s Cleaners Ltd., 2009 MBCA 81, 245 Man. R. (2d) 70 (Man. C.A.).)

(ii) The Application Judge’s Decision 161 The application judge found that the costs were within the discretion of the court, particularly given that the costs did not relate to the determination of the compensation payable as a result of the expropriation. It was on this basis that he distinguished several of the cases referred to by Russell Inns. In response to Russell Inns’ reliance on Smith, the application judge stated that, while solicitor-client costs were awarded in that case, he was of the view that the court did not indicate that it lacked discretion to order other than solicitor-client costs. 296 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

162 He then referred to s. 44(3) of the Act, which states that, on an appeal to the Court of Appeal, the costs of the appeal are in the discretion of the court. He went on to state (at para. 86): I do not consider myself statutorily required to award solicitor and client costs in favour of Russell Inns. I also reject the request for such costs in the exercise of my discretion because there is no conduct on the part of the Province in bringing this application which would in the normal course justify such an approach to costs. I am, however, of the view that in the circumstances, no costs should be ordered against Russell Inns, notwithstanding the success of the Province.

(iii) The Appellants’ Position 163 Russell Inns’ position is that, in expropriation proceedings, the awarding of costs must be governed by s. 15(6) of the Act, notwithstanding that this matter does not deal directly with the determination of the compensation payable. They point out that costs on a judicial review would ordinarily be governed by s. 96(1) of The Court of Queen’s Bench Act, C.C.S.M., c. C280, and Rule 57 of the Queen’s Bench Rules, but they take the position that, due to the exemptions contained within ss. 92, 93(1) and 96(1), these provisions do not apply in this case. The result, they argue, is that the discretion that the courts usually have to set costs has been replaced by the requirement that the owner be indemnified for its full reasonable costs that are reasonably incurred. 164 Russell Inns argue, based on Smith, that, even if the legal proceedings do not deal directly with the determination of the compensation, so long as they relate to the expropriation, the owner is entitled to be paid his costs.

(iv) The Respondent’s Position 165 Manitoba’s position is that, while an owner is entitled, under s. 15(6), to reasonable costs reasonably incurred “for the purpose of determining the compensation payable under [the] Act for an expropriation,” that does not include all costs related to the expropriation. It points out that certain costs are exempted under the Act, including costs related to applications for possession (s. 20(7)) and those arising from an appeal to the Court of Appeal regarding the compensation payable (s. 44(3)). 166 Its position is that the issue in this case was whether the LVAC had the jurisdiction to order interim costs, not whether costs were reasonable. Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 297

167 It argued that, as found by the application judge, the court in Smith was not mandating that, in every matter relating to an expropriation, an authority was required to pay solicitor-client costs, and that the requirement for solicitor-client costs should not apply, especially where the question related to the jurisdiction of the tribunal and the reviewing court determined that it had no jurisdiction.

(v) The Legislation 168 The relevant provisions of The Court of Queen’s Bench Act state: Rule-making powers 92 Subject to subsection 93(1), the rules committee may, upon con- sultation with the Minister of Justice, make rules, whether or not the rules alter substantive law, with respect to the practice and procedure of the court and, without limiting the generality of the foregoing, in relation to ..... (v) the costs of proceedings, including security for costs and a lawyer’s liability for costs; ..... No rules to conflict with an Act 93(1) Nothing in section 92 authorizes the making of rules which conflict with an Act of the Legislature, but rules may supplement the provisions of an Act. Costs 96(1) Subject to the provisions of an Act or the rules, the costs of or incidental to, a proceeding, or a step in a proceeding, are in the discretion of the court and the court shall determine liability for costs and the amount of the costs or the manner in which the costs shall be assessed. 169 Rule 57.01(1) states that costs are in the discretion of the court and sets out a number of factors that a court should consider when exercising that discretion. 298 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

(vi) Analysis — Did the application judge err in law in his interpretation of the law regarding costs? The Smith Decision 170 Both parties have relied on the Smith decision; however, there are significant differences between the facts of that case and those of this case, those differences being: • the cost order on which the appeals were based in Smith was an order of an administrative tribunal, while the cost order under appeal in this case is an order of a judge and it related to an application for judicial review; • different standards of review apply because of the difference in the nature of the tribunals from which an appeal has been taken; and • in Smith, the tribunal had made a final order of both compensation and costs, while there has been no determination by the LVAC of either compensation or costs in this matter. 171 The motion judge in Smith had refused to order solicitor-client costs on the motion in favour of the owner, instead ordering costs on a party and party basis, so the owner applied to the second administrative tribunal for solicitor-client costs on the motion. The authority in Smith argued that, because the motion judge had the power and discretion to award solicitor-client costs, but chose not to, the administrative tribunal did not have the authority to revisit that issue — in effect arguing that the question of the costs for the application was res judicata. 172 In rejecting that argument, Fish J. stated (at para. 71): .... The questions that a superior court answers regarding matters incidental but necessary to expropriation proceedings differ from those that a board or committee resolves pursuant to the expropriation statutes by which it is governed (see E. C. E. Todd, The Law of Expro- priation and Compensation in Canada (2nd ed. 1992), at pp. 505-6). Consequently, the doctrine of res judicata does not apply, and there is, a fortiori, no merit to the respondent’s claim that Mr. Smith committed an abuse of process by asking for his costs on the action. 173 Thus, Fish J. accepted that, in an expropriation case, cost issues relevant to proceedings before an administrative tribunal differ from those that are relevant to costs in court proceedings involving matters incidental, but necessary, to the expropriation. Fish J. cited, with approval, the following portion from the order for judgment by Glube C.J.T.D. (as she Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 299

then was) in Mahone Bay (Town) v. Lohnes (1983), 59 N.S.R. (2d) 68 (N.S. T.D.) (at para. 68 of Smith): The plaintiff’s action is dismissed with costs to the defendants... to be taxed on a party and party basis, provided, however, that this award of party and party costs shall in no way preclude the defendants... from seeking compensation before the Expropriation Compensation Board, pursuant to the Expropriation Act, 1973, for costs over and above the party and party costs awarded herein; and further provided that the defendants... shall have all reasonable disbursements paid with respect to these proceedings. [Cited in Town of Mahone Bay v. Lohnes (1983), 59 N.S.R. (2d) 65 (S.C.(A.D.)), at para. 12; emphasis added.] 174 Fish J. also noted, with approval, a similar decision by the Ontario Municipal Board in McKean v. Ontario (Minister of Transportation) (2008), 94 L.C.R. 185 (O.M.B.), at 190. 175 The question of the applicability of the expanded costs in ss. 15(6) and (7) to court proceedings incidental to an expropriation was recently considered by this court in Fouillard v. Ellice (Municipality), 2007 MBCA 108, 220 Man. R. (2d) 113 (Man. C.A.). In that case, the owners had applied to the court for an order quashing or declaring invalid the municipality’s expropriation resolution and for other related relief. They were unsuccessful, but the motion judge awarded them costs on a solicitor-client basis on the grounds that an owner whose property has been taken should be fully compensated. The owners appealed the dismissal of their application and the authority appealed the award of costs. 176 This court upheld the motion judge’s dismissal of the application, but overturned the order for solicitor-client costs and awarded costs to the successful authority, both in the Queen’s Bench proceeding and on appeal. Scott C.J.M., for the court, stated (at paras. 53-55): ...... [T]here is a clear distinction between compensation proceedings where there is a statutory scheme [like the Act] providing for payment of costs to the land owner, and court proceedings to challenge the validity of the expropriation itself. In the former, the only issue is compensation and it is fit and proper that the land owner who is being deprived of his/her property should be compensated in such circumstances. In the latter, it is an ordinary court proceeding to quash an order in the Court of Queen’s Bench. The rationales with respect to costs are decidedly different, a distinction recognized in the Act itself. Section 15(6) of the Act mandates that the authority pay reasonable costs incurred by the owner in determining compensation; on the other hand, s. 20(7) enables the authority, with leave of the judge 300 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

who granted the order, to recover costs in the event it is necessary to proceed to court to obtain an order for possession of the expropriated property. I agree with counsel for the municipality that, as a matter of policy, challenges to expropriation orders should not be encouraged by the courts by providing litigants with financial support regardless of outcome. It follows from the above that the normal principles dealing with the order for solicitor and client costs should be applied. At common law, solicitor and client costs are only awarded, even to successful parties, in rare and exceptional circumstances where the conduct of the other party is unconscionable..... 177 While Fouillard preceded Smith, it is clear that the decision in Smith is consistent with the decision in Fouillard. 178 Where an appeal of the compensation is taken, it makes sense to permit the court to consider s. 15(6) when awarding costs, as in s. 44(3), because the matter may not be referred back to the administrative tribunal, where there would ordinarily be consideration given to indemnifying the owner for more than ordinary court costs. Where the court proceedings are incidental to the expropriation, the question of compensation remains to be determined, so the administrative tribunal will still have the opportunity to determine whether compensation for the actual expenses of the court proceeding are merited as part of the final compensation due to the owner. 179 In summary, the applicable principles are: • where an administrative tribunal has determined the compensation payable to the owner, the owner is entitled to “reasonable appraisal, legal and other costs that are reasonably incurred” in accordance with ss. 15(6) and (7); • if there is an appeal of the compensation decision, that appeal is governed by s. 44 of the Act, and costs on the appeal are to be determined in accordance with s. 44(3), which gives the court the discretion to award costs in accordance with s. 15(6) in some circumstances — that is, where the owner’s appeal is successful or the authority’s appeal is unsuccessful; • if proceedings are taken in court that are incidental but necessary to the expropriation, costs are determined in accordance with the usual court rules for costs, not in accordance with s. 15(6); Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 301

• if the court awards costs as part of that incidental litigation that are less than his actual legal expenses, the owner can ask the administrative tribunal to include in his compensation the difference between his actual expenses and the costs awarded by the court; and • in determining whether to grant that application, the administrative tribunal would be guided by the principles applicable to expropriation proceedings and the applicable law, including the presumption of full indemnification, who had initiated the incidental proceedings, the nature of those proceedings and whether they were necessary, and the requirement in s. 15(6) that the costs and expenses be both reasonable and reasonably incurred.

The Court of Queen’s Bench Act 180 Russell Inns argue that anything short of solicitor-client costs on a court application would effectively neuter s. 15(6) of the Act. They argue that costs in proceedings related to an expropriation are to be determined pursuant to s. 15(6), which is an exception to the application of the cost provisions in ss. 92, 93(1) and 96(1) of The Court of Queen’s Bench Act and Rule 57.01(1). Their position is that, when one applies s. 15(6), the court’s general broad discretion in awarding costs is replaced by the principles that govern costs in expropriation proceedings and, specifically, the goal of full indemnification for the owner. 181 The error in this reasoning is that s. 15(6) does not apply to all proceedings, but is limited in its application to proceedings that are “for the purpose of determining the compensation payable under this Act.” In this case, the issues raised before the LVAC and on judicial review before the application judge related only to the timing of the payment of costs and the timing of the determination of the reasonableness of those costs, and they had nothing to do with the determination of either the compensation payable or the ultimate costs payable. Thus, the application for judicial review is not a proceeding governed by s. 15(6), and s. 15(6) does not apply. As a result, there is no conflict between that provision and the cost provisions of The Court of Queen’s Bench Act and the Queen’s Bench Rules in relation to this application for judicial review, which means that the exclusions in ss. 93(1) and 96(1) do not apply in this case.

Conclusion 182 For these reasons, the application judge was correct in concluding that he was not statutorily required to award costs on a solicitor-client 302 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

basis and that costs were in the discretion of the court. Thus, he did not commit an error of law in his interpretation of the law regarding costs.

(vii) Analysis — Did the application judge err in the exercise of his discretion by refusing to award costs on a solicitor-client basis to Russell Inns? 183 As noted above, the standard of review regarding an allegation of an error in the exercise of discretion is one of significant deference — the appellant must show that the judge’s decision was so clearly wrong as to amount to an injustice. 184 The application judge rejected Russell Inns’ request for solicitor-client costs on the basis that there was no conduct on Manitoba’s part in bringing the application for judicial review which would, in the normal course, justify such an approach to costs. This is consistent with this court’s statement in Fouillard that solicitor-client costs are only awarded in rare and exceptional circumstances, where the conduct of the other party is unconscionable (at para. 55). As was stated by the application judge, there was clearly no such conduct on Manitoba’s part. 185 Rule 57.01(1) sets out the factors to be considered by a judge when exercising his discretion regarding costs. Rule 57.01(1)(h) requires the judge to consider “any other matter relevant to the question of costs.” In this case, that would include the purpose and object of the expropriation legislation. 186 In the ordinary course, costs would have been ordered in favour of Manitoba as the successful party. By ordering that no costs be paid by Russell Inns in view of “the circumstances” and notwithstanding Mani- toba’s success on the application, the application judge did acknowledge the purpose and object of the expropriation legislation and the resulting special circumstances of the owner (at para. 86). 187 For these reasons, I would find that the application judge did not commit any error in the exercise of his discretion when he refused to order solicitor-client costs in favour of Russell Inns.

VIII. Disposition of the Appeal 188 For the reasons set out above, I would allow the appeal in part, as follows: Manitoba v. Russell Inns Ltd. Holly C. Beard J.A. 303

• on the first ground of appeal, I would find that the application judge did not err in law in finding that there was no alternative remedy to judicial review; • on the second ground of appeal, I would find that the application judge erred in law in failing to apply the appropriate standard of review; • applying the appropriate standard of review, being that of reasonableness, to the second ground of appeal, I would find that the decision of the LVAC ordering Manitoba to make interim payments of the full fees of Russell Inns’ appraiser on a without prejudice basis, subject to review for reasonableness after compensation issues had been resolved, was unreasonable; and • on the third ground of appeal, I would find that: • the application judge did not err in law in his interpretation of the law regarding costs; • the application judge did not err in the exercise of his discretion by refusing to award costs to Russell Inns on a solicitor-client basis; and • the application judge did not err in his decision to award no costs on the application to either party. 189 The result is that the interim order of the LVAC is quashed and the application judge’s order regarding costs is confirmed. 190 On an appeal, costs are usually granted to the successful party, which in this case is Manitoba. It is clear from the evidence filed in the proceedings and the prior decisions by the LVAC that the question of the interim payment of costs and the timing of the determination of the reasonableness of the owner’s costs and expenses have been long-standing controversies — they are not frivolous issues and they were not raised for the first time by Russell Inns. They were, rather, matters that cried out for resolution. It was Manitoba that chose to take the matter to judicial review, while Russell Inns chose to appeal the decision of the application judge with a view to reinstating the decision of the LVAC. Thus, each party had a role in pursuing litigation. 191 Taking all of these circumstances into consideration, together with the purpose and object of the Act, I would make no order for costs against either party on the appeal. As was done in Mahone Bay (Town) and approved in Smith, I would order that the decisions regarding costs, in both this court and the court below, will in no way preclude Russell 304 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Inns from seeking compensation before the LVAC pursuant to ss. 15(6) and (7) for its full expenses in regard to the application for judicial review and this appeal. It will be for the LVAC to determine whether the expenses were reasonable and reasonably incurred pursuant to the Act, based on the relevant principles and the applicable law.

Marc M. Monnin J.A.:

I agree:

Alan D. MacInnes J.A.:

I agree: Appeal allowed in part. L’Hirondelle v. Alberta (M.S.R.D.) 305

[Indexed as: L’Hirondelle v. Alberta (Minister of Sustainable Resource Development)] Robert L’Hirondelle, Appellant and Minister of Sustainable Resource Development (Alberta), Respondent Alberta Court of Appeal Docket: Edmonton Appeal 1103-0292-AC 2013 ABCA 12 Peter Costigan, Frans Slatter, J.D. Bruce McDonald JJ.A. Heard: November 30, 2012 Judgment: January 17, 2013 Aboriginal law –––– Aboriginal rights to natural resources — Aboriginal rights — Fishing –––– Minister of Sustainable Resource Development had issued policy with respect to issuing Métis Domestic Fishing Licences to Métis individuals — Métis man applied to Fish and Wildlife Officer for Métis Domes- tic Fishing Licence — Man provided proof that he was member of East Prairie Métis Settlement — Officer refused application on basis that man had not provided sufficient proof under minister’s policy — Man brought application for judicial review — Application was dismissed — Officer’s refusal of Métis Do- mestic Fishing Licence was no more subject to judicial review than policy upon which it was based — Decision was entirely ‘ministerial‘ with no judicial character whatsoever — Parties were really seeking determination of whether membership in Métis Settlement established entitlement to aboriginal rights under s. 35 of Constitution Act, 1982 — Present proceeding did not provide appropriate context for making this determination — Man appealed — Appeal dismissed — Issue underlying appeal was whether government could ask for further evidence of Métis membership after someone had presented Métis Settlement identification card — Although chambers judge erred in concluding that determination of membership in Métis Settlement was not subject to judicial review, membership was not conclusive proof of entitlement to constitutional aboriginal rights — Of- ficer was entitled to delay issuance of Metis Domestic Fishing Licence to man pending further proof of his status. Natural resources –––– Fish and wildlife — Licences — Issuance — Miscel- laneous –––– Minister of Sustainable Resource Development had issued policy with respect to issuing Métis Domestic Fishing Licences to Métis individuals — Métis man applied to Fish and Wildlife Officer for Métis Domestic Fishing Li- cence — Man provided proof that he was member of East Prairie Métis Settle- ment — Officer refused application on basis that man had not provided sufficient proof under minister’s policy — Man brought application for judicial 306 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

review — Application was dismissed — Officer’s refusal of Métis Domestic Fishing Licence was no more subject to judicial review than policy upon which it was based — Decision was entirely ‘ministerial‘ with no judicial character whatsoever — Parties were really seeking determination of whether membership in Métis Settlement established entitlement to aboriginal rights under s. 35 of Constitution Act, 1982 — Present proceeding did not provide appropriate context for making this determination — Man appealed — Appeal dismissed — Is- sue underlying appeal was whether government could ask for further evidence of Métis membership after someone had presented Métis Settlement identification card — Although chambers judge erred in concluding that determination of membership in Métis Settlement was not subject to judicial review, membership was not conclusive proof of entitlement to constitutional aboriginal rights — Of- ficer was entitled to delay issuance of Metis Domestic Fishing Licence to man pending further proof of his status. Cases considered by Frans Slatter J.A.: Alberta (Minister of Municipal Affairs) v. Alberta (Municipal Government Board) (2002), 31 M.P.L.R. (3d) 153, 2002 ABCA 199, 2002 CarswellAlta 1083, (sub nom. Alberta (Minister of Municipal Affairs) v. Telus Communications Inc.) 218 D.L.R. (4th) 61, [2002] 11 W.W.R. 418, 45 Ad- min. L.R. (3d) 1, 6 Alta. L.R. (4th) 199, 312 A.R. 40, 281 W.A.C. 40, (sub nom. Alberta (Minister of Municipal Affairs) v. Telus Communications Inc.) [2002] A.J. No. 1068 (Alta. C.A.) — referred to Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — considered British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal) (2011), 25 Admin. L.R. (5th) 173, [2011] 12 W.W.R. 1, 23 B.C.L.R. (5th) 1, 337 D.L.R. (4th) 413, 421 N.R. 338, 2011 SCC 52, 2011 CarswellBC 2702, 2011 CarswellBC 2703, (sub nom. B.C. (W.C.B.) v. Figi- ola) 2012 C.L.L.C. 230-001, 95 C.C.E.L. (3d) 169, (sub nom. British Columbia (Workers’ Compensation Board) v. Figliola) [2011] 3 S.C.R. 422, 311 B.C.A.C. 1, 529 W.A.C. 1, [2011] A.C.S. No. 52, [2011] S.C.J. No. 52 (S.C.C.) — referred to Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 1995 CarswellNat 264, 1995 CarswellNat 700, 26 Admin. L.R. (2d) 1, (sub nom. Matsqui Indian Band v. Canadian Pacific Ltd.) [1995] 2 C.N.L.R. 92, 122 D.L.R. (4th) 129, 85 F.T.R. 79 (note), [1995] 1 S.C.R. 3, 177 N.R. 325, [1995] S.C.J. No. 1 (S.C.C.) — referred to L’Hirondelle v. Alberta (M.S.R.D.) 307

Haida Nation v. British Columbia (Minister of Forests) (2004), 19 Admin. L.R. (4th) 195, 327 N.R. 53, [2004] 3 S.C.R. 511, 36 B.C.L.R. (4th) 282, 206 B.C.A.C. 52, 338 W.A.C. 52, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th) 1, 2004 CarswellBC 2656, 2004 CarswellBC 2657, 2004 SCC 73, 245 D.L.R. (4th) 33, [2005] 3 W.W.R. 419, [2004] S.C.J. No. 70, REJB 2004-80383 (S.C.C.) — considered Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — referred to Little Salmon/Carmacks First Nation v. Yukon (Director, Agriculture Branch, Department of Energy, Mines & Resources) (2010), 10 Admin. L.R. (5th) 163, (sub nom. Little Salmon/Carmacks First Nation v. Beckman) 501 W.A.C. 1, (sub nom. Beckman v. Little Salmon/Carmacks) [2010] 3 S.C.R. 103, (sub nom. Little Salmon/Carmacks First Nation v. Beckman) 295 B.C.A.C. 1, (sub nom. Little Salmon/Carmacks First Nation v. Beckman) 408 N.R. 281, 55 C.E.L.R. (3d) 1, 2010 SCC 53, 2010 CarswellYukon 140, 2010 CarswellYukon 141, 97 R.P.R. (4th) 1, 326 D.L.R. (4th) 385, (sub nom. Beckman v. Little Salmon/Carmacks First Nation) [2011] 1 C.N.L.R. 12 (S.C.C.) — referred to Little Sisters Book & Art Emporium v. Canada (Minister of Justice) (2000), 145 B.C.A.C. 1, 237 W.A.C. 1, [2000] 2 S.C.R. 1120, 28 Admin. L.R. (3d) 1, 2000 SCC 69, 2000 CarswellBC 2442, 2000 CarswellBC 2452, 79 C.R.R. (2d) 189, 38 C.R. (5th) 209, 83 B.C.L.R. (3d) 1, [2001] 2 W.W.R. 1, 263 N.R. 203, 150 C.C.C. (3d) 1, 193 D.L.R. (4th) 193, [1998] S.C.C.A. No. 448, REJB 2000-21529, [2000] S.C.J. No. 66 (S.C.C.) — referred to Mavi v. Canada (Attorney General) (2011), 2011 CarswellOnt 4429, 2011 Cars- wellOnt 4430, 2011 SCC 30, 332 D.L.R. (4th) 577, 417 N.R. 126, 97 Imm. L.R. (3d) 173, (sub nom. Canada (Attorney General) v. Mavi) [2011] 2 S.C.R. 504, 19 Admin. L.R. (5th) 1, 279 O.A.C. 63, 108 O.R. (3d) 240 (S.C.C.) — considered McDonald v. Alberta (Attorney General) (1968), 1968 CarswellAlta 58, 4 C.R.N.S. 362, 66 W.W.R. 111, 1 D.L.R. (3d) 118 (Alta. C.A.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered 308 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Nicholson v. Haldimand-Norfolk (Regional Municipality) Commissioners of Po- lice (1978), [1979] 1 S.C.R. 311, 88 D.L.R. (3d) 671, 78 C.L.L.C. 14,181, 23 N.R. 410, 1978 CarswellOnt 609F, 1978 CarswellOnt 609 (S.C.C.) — considered Peavine M´etis Settlement v. Alberta (Minister of Aboriginal Affairs & Northern Development) (2011), [2011] 3 C.N.L.R. 36, [2011] 12 W.W.R. 417, 2011 SCC 37, 2011 CarswellAlta 1210, 2011 CarswellAlta 1211, 49 Alta. L.R. (5th) 272, 418 N.R. 101, 334 D.L.R. (4th) 577, (sub nom. Alberta (Aboriginal Affairs and Northern Development) v. Cunningham) [2011] 2 S.C.R. 670, 505 A.R. 1, 522 W.A.C. 1, (sub nom. Alberta (Aboriginal Affairs & Northern Development) v. Cunningham) 239 C.R.R. (2d) 124 (S.C.C.) — considered R. c. Adams (1996), 1996 CarswellQue 912, 1996 CarswellQue 913, 202 N.R. 89, [1996] 3 S.C.R. 101, 110 C.C.C. (3d) 97, 138 D.L.R. (4th) 657, [1996] 4 C.N.L.R. 1, EYB 1996-67909 (S.C.C.) — considered R. v. Lefthand (2007), 2007 CarswellAlta 850, 2007 ABCA 206, [2007] 4 C.N.L.R. 281, 222 C.C.C. (3d) 129, [2007] 10 W.W.R. 1, 77 Alta. L.R. (4th) 203, [2007] A.J. No. 681 (Alta. C.A.) — referred to R. v. Lizotte (2009), 484 A.R. 372, [2010] 1 C.N.L.R. 326, 2009 CarswellAlta 1759, 2009 ABPC 287, [2009] A.J. No. 1203 (Alta. Prov. Ct.) — considered R. v. Miller (1985), [1985] 2 S.C.R. 613, 24 D.L.R. (4th) 9, 14 O.A.C. 33, 16 Admin. L.R. 184, 63 N.R. 321, 23 C.C.C. (3d) 97, 49 C.R. (3d) 1, 1985 CarswellOnt 124, 52 O.R. (2d) 585 (headnote only), 1985 CarswellOnt 947, [1985] S.C.J. No. 79 (S.C.C.) — considered R. v. Powley (2003), 2003 CarswellOnt 3502, 2003 CarswellOnt 3503, 2003 SCC 43, 308 N.R. 201, 177 O.A.C. 201, 68 O.R. (3d) 255 (note), 230 D.L.R. (4th) 1, 177 C.C.C. (3d) 193, [2003] 2 S.C.R. 207, [2003] 4 C.N.L.R. 321, 5 C.E.L.R. (3d) 1, 110 C.R.R. (2d) 92, REJB 2003-47444, [2003] S.C.J. No. 43 (S.C.C.) — followed R. v. Sparrow (1990), 1990 CarswellBC 105, 1990 CarswellBC 756, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 4 W.W.R. 410, EYB 1990- 68598, [1990] S.C.J. No. 49 (S.C.C.) — referred to Skyline Roofing Ltd. v. Alberta (Workers’ Compensation Board) (2001), 2001 ABQB 624, 2001 CarswellAlta 940, [2001] 10 W.W.R. 651, 292 A.R. 86, 34 Admin. L.R. (3d) 289, 95 Alta. L.R. (3d) 126, [2001] A.J. No. 985 (Alta. Q.B.) — considered Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, 9 Admin. L.R. (4th) 161, [2003] 3 S.C.R. 77, 17 C.R. (6th) 276, 2003 SCC 63, 2003 CarswellOnt 4328, 2003 CarswellOnt 4329, 311 N.R. 201, 2003 C.L.L.C. 220-071, 179 O.A.C. 291, 120 L.A.C. (4th) 225, 31 C.C.E.L. (3d) 216, [2003] S.C.J. No. 64, REJB 2003-49439 (S.C.C.) — considered L’Hirondelle v. Alberta (M.S.R.D.) 309

UFCW-Can, Local 401 v. Alberta (Information and Privacy Commissioner) (2012), [2012] 6 W.W.R. 211, (sub nom. United Food and Commercial Workers, Local 401 v. Alberta (Privacy Commissioner)) 522 A.R. 197, (sub nom. United Food and Commercial Workers, Local 401 v. Alberta (Privacy Commissioner)) 544 W.A.C. 197, 2012 ABCA 130, 57 Alta. L.R. (5th) 249, 33 Admin. L.R. (5th) 321, 2012 C.L.L.C. 210-025, 2012 CarswellAlta 760, 349 D.L.R. (4th) 654, (sub nom. United Food and Commercial Workers, Local 401 v. Alberta (Attorney General)) 258 C.R.R. (2d) 110 (Alta. C.A.) — referred to Statutes considered: Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11, reprinted R.S.C. 1985, App. II, No. 44 s. 35 — considered s. 35(1) — considered s. 35(2) “aboriginal peoples of Canada” — considered Constitution of Alberta Amendment Act, 1990, R.S.A. 2000, c. C-24 Generally — referred to Fisheries (Alberta) Act, R.S.A. 2000, c. F-16 Generally — referred to Metis Settlements Act, R.S.A. 2000, c. M-14 Generally — referred to s. 1(j) “Metis” — considered s. 74 — considered ss. 76-84 — referred to s. 81 — considered s. 96 — considered Rules considered: Alberta Rules of Court, Alta. Reg. 124/2010 R. 3.15 — referred to Regulations considered: Fisheries (Alberta) Act, R.S.A. 2000, c. F-16 General Fisheries (Alberta) Regulation, Alta. Reg. 203/1997 Generally — referred to s. 2(j)(i) — considered

APPEAL from judgment reported at L’Hirondelle v. Alberta (Minister of Sustainable Resource Development) (2011), 2011 CarswellAlta 1929, 2011 ABQB 646, 249 C.R.R. (2d) 1, [2011] A.J. No. 1108, 527 A.R. 350 (Alta. Q.B.), dismissing application for judicial review of judgment dismissing application for fishing licence on ground that there was insufficient proof of membership to M´etis nation. 310 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

S.A. Beaver, for Appellant T.G. Rothwell, A.L. Edgington, for Respondent

Frans Slatter J.A.:

1 This is an appeal from a chambers decision, which dismissed an application for judicial review of the refusal to grant the appellant a M´etis domestic fishing licence: L’Hirondelle v. Alberta (Minister of Sustainable Resource Development), 2011 ABQB 646, 527 A.R. 350 (Alta. Q.B.).

Facts 2 The appellant is a member of the East Prairie Métis Settlement, and asserts a constitutionally protected right to fish for food. He applied for a Métis domestic fishing licence, asserting that as a member of the East Prairie Métis Settlement he was entitled to such a licence as a matter of right. The Fish and Wildlife Officer refused to issue the fishing licence until the applicant could prove that he was in fact of Métis ancestry, connected with a historic Métis community in Alberta. 3 The issue underlying this appeal is whether the government can “look behind” a Métis Settlement identification card, or whether the government must effectively accept the membership decisions of the Alberta Métis communities. In other words, is membership in a Métis Settlement conclusive or prima facie proof of an entitlement to constitutional aboriginal rights?

Métis Settlements 4 Portions of the Alberta Métis community are in the unique position of being the only land-based Métis in Canada. This gradually evolved from a decision of the Government of Alberta in the 1930s to address the severe circumstances being faced by the Métis in light of the Great Depres- sion, and the absence of federal support for Métis people. 5 The subsequent legal evolution of the Métis settlements is briefly outlined in Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs & Northern Development), 2011 SCC 37 (S.C.C.) at paras. 8-18, [2011] 2 S.C.R. 670 (S.C.C.). In 1989, after much study and negotiation, the Alberta-Métis Settlement Accord was reached. It led to the establish- ment of the modern statutory basis for the Métis Settlements, and also L’Hirondelle v. Alberta (M.S.R.D.) Frans Slatter J.A. 311

generated some amendments to the Alberta Constitution: Constitution of Alberta Amendment Act, 1990, RSA 2000, c. C-24. 6 The present legislative regime recognizes land-based Métis settlements with partial self-government. The Métis Settlements Act, RSA 2000, c. M-14 continues and restructures the Métis settlements, and provides for the election of Settlement Councils to govern them. It defines “Métis” in s. 1(j) as “a person of aboriginal ancestry who identifies with Métis history and culture”. In s. 74 it provides that only Métis over 18 who have lived in Alberta for 5 years may apply to be members of a settlement. The Act creates a mechanism in ss. 76-84 for proving membership, including a right of appeal, and confirms that membership can only be approved if the Settlement Council is satisfied that the applicant “is a person of Canadian aboriginal ancestry who identifies with Métis history and culture”. 7 The Act also creates the Métis Settlements General Council, which has an overall policy-making role for the Métis settlements, and holds the title to the Settlement lands. Section 96 of the Act enables the establish- ment by the Minister of a Settlement Members List, but allows the Min- ister to delegate that responsibility to the General Council. The record does not disclose if that delegation has occurred. The Government of Al- berta does not, however, play any role in membership decisions. 8 As indicated, the appellant is a member of the East Prairie Métis Set- tlement, and he holds an identification card issued by the Métis Settle- ment General Council. It states on the back: The bearer of this card enjoys all i) rights/privileges created (granted) by the Métis Settlements Alberta Accord and by its resulting legislation; ii) rights/privileges existing before the accord; and iii) rights/privileges protected by Section 35 of the Constitution of Can- ada, including, but not restricted to, Hunting Fishing Trapping and Gathering. The front of the card contains the applicant’s photograph and name, and confirms that he is a “Métis Member of the East Prairie Métis Settle- ment”. The information on the card did not result from any input from Alberta, and is not mandated by any government policy or regulation. The criteria used by the General Council to issue the cards is not on the record. 312 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Métis Fishing in Alberta 9 The Government of Alberta accepts the existence of the aboriginal right to fish for food. To bring some order to the exercise of aboriginal fishing rights, Alberta has dealt with Métis fishing rights in the General Fisheries (Alberta) Regulation, AR 203/97, made under the Fisheries (Alberta) Act, RSA 2000, c. F-16. The General Fisheries (Alberta) Regu- lation provides, in s. 2(j)(i), for the issuance without charge of Métis domestic fishing licences. The Fisheries (Alberta) Regulation does not outline any criteria for determining who is “Métis”, although arguably the Fisheries (Alberta) Act is wide enough to authorize such regulations. 10 Alberta does, however, have a policy respecting Métis Harvesting in Alberta, the key portions of which are appended to the reasons of the chambers judge. The policy recites that to qualify for aboriginal fishing rights, the applicant must satisfy the criteria in R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 (S.C.C.). The policy then outlines some criteria for qualifying as Métis which are said to arise from Powley, including: Who is a Métis Harvester? A person who asserts a constitutionally protected Métis harvesting right has the onus to prove that assertion. A person who wishes to fish using a net must have a Métis Domestic Fishing Licence; an individual’s eligibility for that licence must be established before the licence is issued. A person who wishes to fish by any other legal means must have a sportfishing licence. A person who wishes to hunt must be able to demonstrate that he/she is a Métis harvester as described below. If checked while hunting, the person will be given 60 days to produce evidence of their status as a harvester, and, if unable to do so, may be charged with an offence. If an individual is uncertain whether they will be able to prove that they possess an aboriginal right they should seek legal advice, as you may be required to prove the existence of such a right in court if you are charged with an offence. Alternatively, individuals may wish to purchase the necessary licences in order to avoid uncertainty. A person is a Métis harvester only if he or she meets the test set out in the Powley case. L’Hirondelle v. Alberta (M.S.R.D.) Frans Slatter J.A. 313

To demonstrate that you are a Métis harvester, you must provide evidence that you meet the Powley test. You should be prepared to produce evidence that you satisfy the following criteria: • That you self-identify as Métis, and for how long you have self-identified as Métis • membership in the Métis Nation of Alberta or a Métis Settlement or a statutory declaration confirming self identification would assist in demonstrating self identification, • membership in either of these organizations, or a Stat- utory Declaration, is not sufficient to meet the Powley test; (underlining added) • That you have an ancestral connection to an historic Métis community in Alberta; • genealogical history, including where ancestors lived and when they lived there, • please go back in time as far back as possible, and in any event, back to the late 1880’s; • That you belong to a contemporary Métis community in Al- berta; • name that community and demonstrate acceptance by and involvement in that community; • That you are a resident of Alberta. Thorough information will help make the decision-making process efficient. The policy clearly recites that the government puts the onus on the applicant to prove Métis status. Being a member of a Métis Settlement is accepted as some evidence of Métis status, but is not itself conclusive.

The Present Dispute 11 The applicant attended at the Fish and Wildlife Office, presented his Métis Settlement identification card, and requested a Métis domestic fishing licence. Not surprisingly, Officer English cited the policy, advised that further proof of Métis status would be required, and denied the issuance of the licence pending that proof. 12 The applicant applied for judicial review, seeking an order quashing the decision of the Fish and Wildlife Officer, and directing that he be issued a Métis domestic fishing licence. He also applied for a declaration 314 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

that the “presentation of a Métis Settlements identification card is sufficient as prima facie proof of Powley status.” He did not directly challenge the Métis Harvesting Policy, although if his arguments are correct aspects of that policy would be ineffective. 13 The chambers judge held that the relief sought was not available to the applicant. He concluded at para. 10 that the Métis Harvesting Policy was not “the exercise of a legislative function delegated to the Minister”, and therefore not amenable to judicial review. He held at para. 21 that even if the Lieutenant Governor in Council had exercised its authority to make regulations on the subject of Métis status, those regulations would not be reviewable on judicial review. The chambers judge went on to conclude at para. 24 that the denial of the fishing licence was “no more subject to judicial review than the policy upon which it was based”. The chambers judge therefore dismissed the applications, without engaging the substantive arguments.

Standard of Review 14 The standard of review for questions of law is correctness. The findings of fact of the chambers judge will only be reversed on appeal if they disclose palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.) at paras. 8, 10, 25, [2002] 2 S.C.R. 235 (S.C.C.). 15 The test for the availability of judicial review is a question of law, reviewed for correctness: Alberta (Minister of Municipal Affairs) v. Alberta (Municipal Government Board), 2002 ABCA 199 (Alta. C.A.) at para. 24, (2002), 6 Alta. L.R. (4th) 199, 312 A.R. 40 (Alta. C.A.). Whether judicial review is available in particular circumstances is some- times a mixed question of fact and law, or engages an element of discretion, both of which would be reviewed for reasonableness, absent an error of principle: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 (S.C.C.), at 32, 64. 16 The existence and scope of constitutional rights, and the compliance with those rights by any policies or decisions, raise questions of law reviewable for correctness: Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.) at para. 26, [2011] 1 S.C.R. 160 (S.C.C.); UFCW-Can, Local 401 v. Alberta (Information and Privacy Commissioner), 2012 ABCA 130 (Alta. C.A.) at paras. 37-44, (2012), 522 A.R. 197, 57 Alta. L.R. (5th) 249 (Alta. C.A.). L’Hirondelle v. Alberta (M.S.R.D.) Frans Slatter J.A. 315

Availability of Judicial Review 17 The chambers judge held at para. 24 that judicial review was not available to the appellant because there was “no judicial character to the decision whatsoever”, and that the decision was “entirely ‘ministerial’”, relying on McDonald v. Alberta (Attorney General) (1968), 66 W.W.R. 111, 1 D.L.R. (3d) 118 (Alta. C.A.). McDonald concerned an application for certiorari to quash a criminal information, and the Court noted at p. 117: “I am satisfied that the act of the Magistrate in receiving the information was a ministerial act and that the information was therefore not subject to certiorari.” The respondent did not advance this argument in the trial court, and concedes that McDonald no longer reflects the law on this point. 18 What is now the unified application for judicial review under R. 3.15 was formerly an application for one of the prerogative writs: certiorari, prohibition, mandamus, quo warranto or habeas corpus. Historically, administrative law was built from the remedies up, and in order to be successful an applicant had to show that he met the somewhat idiosyncratic requirements of the applicable prerogative writ. 19 It was one of the features of the writ of certiorari that it only applied to decisions that had to be made in a “judicial or quasi-judicial” manner. Such reviewable decisions were contrasted with merely “administrative” or “ministerial” decisions that were not amenable to certiorari. But that feature of administrative law has long been left behind. 20 The erosion of the need to show a “quasi-judicial decision” in Canada can probably be traced to the decision in Nicholson v. Haldimand- Norfolk (Regional Municipality) Commissioners of Police (1978), [1979] 1 S.C.R. 311 (S.C.C.) at p. 325: What rightly lies behind this emergence is the realization that the classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult, to say the least; and to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected, regardless of the classification of the function in question. By 1985 the shift in the law was complete, and the Court could confirm in R. v. Miller, [1985] 2 S.C.R. 613 (S.C.C.), at pp. 623-24: It is, of course, clear since the decision of this Court in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, that certiorari is not confined to decisions required to be made on a judi- 316 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

cial or quasi-judicial basis, but that it applies, in the words of Dick- son J., as he then was, at pp. 622-23, “wherever a public body has power to decide any matter affecting the rights, interests, property, privileges, or liberties of any person.” While said in the context of the need to extend a full measure of procedural protections to ensure natural justice, the concept soon became more general. 21 It is not necessary to trace the tortuous journey of administrative law from that point, through to its most recent incarnation in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.). Suffice it to say that the distinction between “administrative” and “quasi-judicial” tribunals has not been a factor for decades. The modern approach is to focus on the standard of review applicable to the decision, using the Dunsmuir approach, and to apply the considerations in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) respecting issues of natural justice. 22 It follows that the chambers judge erred in concluding that the appellant was not entitled to judicial review. The granting and refusal of licences, the vires of government policies, and the constitutionality of particular decisions are core topics of judicial review, even in aboriginal law: Little Salmon/Carmacks First Nation v. Yukon (Director, Agriculture Branch, Department of Energy, Mines & Resources), 2010 SCC 53 (S.C.C.) at para. 47, [2010] 3 S.C.R. 103 (S.C.C.).

Policy versus Regulation 23 Some argument was directed to the significance of the M´etis Harvest- ing Policy being a “policy” as opposed to a “regulation”. 24 Statutory decision makers are required to exercise their powers in many different circumstances. It has never been the practice, nor is it possible, to provide regulatory guidelines for every exercise of discretion. In this case, the Fisheries (Alberta) Regulation provides for “M´etis domestic fishing licences”, without defining who qualifies. Obviously, those charged with the responsibility of issuing such licences must make that determination. 25 It is not objectionable for the decision maker to have policies indicating how discretions will usually be exercised. As was noted in Mavi v. L’Hirondelle v. Alberta (M.S.R.D.) Frans Slatter J.A. 317

Canada (Attorney General), 2011 SCC 30 (S.C.C.) at para. 66, [2011] 2 S.C.R. 504 (S.C.C.): ... Policies are necessary to guide the action of the multitude of civil servants who operate government programs. The Minister is entitled to set policy within legal limits. It cannot be said that the Ontario policy here so “fetters” the discretion as to be invalid. Even if the statute enables the enactment of regulations, the fact that the regulatory power lies unexercised does not preclude the adoption of appropriately framed policies: Little Sisters Book & Art Emporium v. Canada (Minister of Justice), 2000 SCC 69 (S.C.C.) at paras. 135-9, [2000] 2 S.C.R. 1120 (S.C.C.). 26 As was pointed out in Skyline Roofing Ltd. v. Alberta (Workers’ Compensation Board), 2001 ABQB 624 (Alta. Q.B.) at para. 75, (2001), 95 Alta. L.R. (3d) 126, 292 A.R. 86 (Alta. Q.B.), there are numerous advantages to “policies”: • policies provide notice to the public of what the tribunal expects of them, and what the public might expect of the tribunal; • policies encourage consistency in decisions where many public officials or employees are involved in making similar decisions; • published policies make decision making more transparent; decisions consistent with the policy have a known source, while inconsistent decisions call for justification; • policies are necessary or expedient when a large volume of decisions must be made; • while policy might emerge from a series of decisions, a formally stated policy is likely to be more comprehensive, rational and accessible. So long as the policy does not incorporate irrelevant considerations, con- tradict the relevant enactment, offend constitutional imperatives, or unreasonably fetter the discretion of the decision maker, policies are unobjectionable. 27 However, it was said in R. c. Adams, [1996] 3 S.C.R. 101 (S.C.C.) at para. 54 that an “unstructured discretionary administrative regime” which might infringe on aboriginal rights is unreasonable and therefore not acceptable. The Court went on to hold that for such a discretion to be constitutional “... the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights” (underlining added). In 318 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (S.C.C.) at para. 51, [2004] 3 S.C.R. 511 (S.C.C.) the Court clarified that “delegate regulations”, should not necessarily be read as only permitting what are in the technical sense “regulations”, pronounced by the Lieuten- ant Governor in Council. The necessary guidance for the exercise of the discretion can be validly found in a sufficiently specific policy document endorsed by the responsible Minister: Little Sisters at paras. 135-8. 28 Whether the definition of “Métis” appears in a policy or a regulation does not determine the outcome of this case. The appellant’s basic argument is that the government must accept as Métis all those acknowledged by the Métis community. The appellant does not argue, as in Adams, that the parameters surrounding the discretion are too vague, rather he argues that there is no discretion at all. That conclusion is said to be mandated by the Constitution. If the argument is correct, the government’s Métis fishing policy would be equally unconstitutional whether it was entrenched in a regulation, or stated in a policy, or merely reflected in the decisions denying particular licences.

Res Judicata or Abuse of Process 29 The fundamental question is whether the government must effectively accept the membership decisions of the Alberta Métis communities by recognizing membership in a Métis Settlement as conclusive proof of an entitlement to constitutional aboriginal rights. 30 The appellant’s first argument is that Alberta is estopped from arguing the point by the doctrines of res judicata or abuse of process. In R. v. Lizotte, 2009 ABPC 287, 484 A.R. 372 (Alta. Prov. Ct.) the defendant was charged with a hunting offence, and he defended on the basis that he had an aboriginal right to hunt. One issue was whether his membership in a Métis Settlement was sufficient proof of his aboriginal status. Lizotte argued that the lists created for Métis Settlement purposes essentially set the criteria for aboriginal status required by Powley. After a lengthy discussion of the negotiations leading up to the Alberta-Métis Settlement Accord, the trial judge accepted this argument. While he noted that there were some differences between the definition of “Métis” in the Métis Settlement Act and in Powley, he concluded: 27 In comparing the two sets of criteria it is clear there is commonal- ity. The Crown complains in essence, about the criteria of the Act. The Crown says they are loose and allow a flood of recent persons claiming to be “Métis”. They advocate a rigid imposition of the L’Hirondelle v. Alberta (M.S.R.D.) Frans Slatter J.A. 319

Powley rules, ironically to limit rights. The only area the Powley rules are more rigorous than the Métis Settlement Act are in the need for the ancestral connection not of recent vintage. Under Powley the historical connection needs to be linked to the time post contact and pre-control with European colonials. Under the Act the historical antecedents which an applicant merely needs to show is that they are of “aboriginal ancestry” and that they have been a resident of Alberta for five years. The July 2007 policy interpreting Powley directs that subjects need to prove historical antecedents to the late 1800s. I disagree, at least as it applies to Settlement Métis. 28 Clearly the Powley decision sets a constitutional imperative. It trumps an ordinary statute or a government policy. Where it is more rigorous than the Alberta statute in defining a “Métis” however, problems arise. Multiple definitions of “Métis” for different purposes inevitably lead to confusion and misunderstandings, especially amongst unsophisticated people. Here, the Supreme Court itself, recognizes the need for both a clear definition and the need for flexibil- ity. In paragraph 21 of Powley the Supreme Court states: “as Métis communities continue to organize themselves more formally and to assert their constitutional rights, it is imperative that membership requirements become more standardized so that legitimate rights holders can be identified.”, and at paragraph 33 “membership in a Métis political organization may be relevant to the question of community acceptance, but it is not sufficient in the absence of a contextual understanding of the membership requirements of the organization and its role in the Métis community.” 29 I am satisfied that the Crown’s position in this case is inconsistent with the Alberta government’s historical approach to the Métis people. The Alberta legislature passed an Act in 1938 that no other Prov- ince has since duplicated. In 1990 following significant consultations and negotiations the Métis Settlement Act provided both self-government and a comprehensive framework for determining membership. This was taken to the unprecedented level of being recognized in the Alberta Constitution. In the new Act the Crown delegated to the various settlement structures a very formalized framework for determining membership. The process is statutory with built-in safeguards and appeals. In essence the people of Alberta through this delegation recognized that they trusted the Métis Settlements to decide for themselves, within the framework provided, who was a “Métis”. The Crown wants to create a parallel world of unnamed bureaucrats to analyze Métis genealogical records and second-guess the work of the Settlements. This is inconsistent with the Act, and with common sense. 320 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

As a result, Lizotte was not required to further prove his M´etis status as a defence, and he was acquitted. 31 The present appellant argues that since Alberta knew Lizotte was a “test case”, but did not appeal, it is bound by the result. This argument, however, confuses the principles of res judicata and stare decisis. Res judicata prevents either party from re-litigating an issue that has been decided by a court in litigation between those parties. It does not apply here, because this appellant was not a party to the Lizotte decision. Stare decisis is a rule that lower courts are bound by the decisions of higher courts. If Lizotte had been decided by the Supreme Court of Canada it would be binding on all Canadian courts, by virtue of the doctrine of stare decisis. Subject to a few exceptions, under the doctrine of res judicata it is only binding on the immediate parties to that decision. 32 The Crown cannot be expected to appeal every decision it disagrees with, and it is not necessarily an abuse of process for it to raise an issue a second time in an unrelated case. The parties cannot self-declare a case to be a “test case”, and thereby enhance the authority of Provincial Court decisions to those of the Supreme Court of Canada. In this appeal the appellant seeks to use the abuse of process doctrine to entrench a sweep- ing rule about M´etis status. This can be distinguished from situations where a litigant is attempting to undermine a previous decision involving the immediate rights of specific parties. Nor is this a collateral attack on the Lizotte decision, because nothing in these proceedings will undermine the acquittal in Lizotte. For these reasons, the decisions in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.) and British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal), 2011 SCC 52, [2011] 3 S.C.R. 422 (S.C.C.) do not govern the situation, and there is no impediment to Al- berta advancing its arguments.

Determining M´etis Status 33 The Constitution Act, 1982, s. 35 recognizes aboriginal rights: 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and M´etis peoples of Canada. L’Hirondelle v. Alberta (M.S.R.D.) Frans Slatter J.A. 321

The appellant asserts such rights, particularly an aboriginal right to fish for food. 34 The Powley decision was the first definitive exploration of Métis aboriginal rights by the Supreme Court. It discussed the necessity and difficulty of defining “Métis” status. The appellant’s argument arises directly from some of the comments in Powley: 4. Verification of the Claimant’s Membership in the Relevant Contemporary Community 29 While determining membership in the Métis community might not be as simple as verifying membership in, for example, an Indian band, this does not detract from the status of Métis people as full- fledged rights-bearers. As Métis communities continue to organize themselves more formally and to assert their constitutional rights, it is imperative that membership requirements become more standardized so that legitimate rights-holders can be identified. In the meantime, courts faced with Métis claims will have to ascertain Métis identity on a case-by-case basis. The inquiry must take into account both the value of community self-definition, and the need for the process of identification to be objectively verifiable. In addition, the criteria for Métis identity under s. 35 must reflect the purpose of this constitutional guarantee: to recognize and affirm the rights of the Métis held by virtue of their direct relationship to this country’s original inhabitants and by virtue of the continuity between their customs and traditions and those of their Métis predecessors. This is not an insurmountable task. 30 We emphasize that we have not been asked, and we do not purport, to set down a comprehensive definition of who is Métis for the purpose of asserting a claim under s. 35. We therefore limit ourselves to indicating the important components of a future definition, while affirming that the creation of appropriate membership tests before disputes arise is an urgent priority. As a general matter, we would endorse the guidelines proposed by Vaillancourt Prov. J. and O’Neill J. in the courts below. In particular, we would look to three broad factors as indicia of Métis identity for the purpose of claiming Métis rights under s. 35: self-identification, ancestral connection, and community acceptance. 31 First, the claimant must self-identify as a member of a Métis community. This self-identification should not be of recent vintage: While an individual’s self-identification need not be static or mono- lithic, claims that are made belatedly in order to benefit from a s. 35 right will not satisfy the self-identification requirement. 322 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

32 Second, the claimant must present evidence of an ancestral connection to a historic Métis community. This objective requirement ensures that beneficiaries of s. 35 rights have a real link to the historic community whose practices ground the right being claimed. We would not require a minimum “blood quantum”, but we would require some proof that the claimant’s ancestors belonged to the historic Métis community by birth, adoption, or other means. Like the trial judge, we would abstain from further defining this requirement in the absence of more extensive argument by the parties in a case where this issue is determinative. In this case, the Powleys’ Métis ancestry is not disputed. 33 Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed. Mem- bership in a Métis political organization may be relevant to the question of community acceptance, but it is not sufficient in the absence of a contextual understanding of the membership requirements of the organization and its role in the Métis community. The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Métis community’s identity and distinguish it from other groups. This is what the community membership criterion is all about. Other indicia of community acceptance might include evidence of participation in community activities and testimony from other members about the claimant’s connection to the community and its culture. The range of acceptable forms of evidence does not attenuate the need for an objective demonstration of a solid bond of past and present mutual identification and recognition of common belonging between the claimant and other members of the rights-bearing community. 34 It is important to remember that, no matter how a contemporary community defines membership, only those members with a demon- strable ancestral connection to the historic community can claim a s. 35 right. Verifying membership is crucial, since individuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection to and current membership in a Métis community. In Powley, the Court found no error in the trial judge’s conclusion that the Powley family enjoyed Métis status in Ontario. But the Court specifically stated in para. 30 that it was not setting any fixed rules about determining Métis status. 35 The appellant in this appeal argues that the effect of Powley is that the government has some role to play in establishing a list of Métis status holders, but once such a list is established, the government must accept L’Hirondelle v. Alberta (M.S.R.D.) Frans Slatter J.A. 323

that list for all purposes. The appellant notes the statements in Powley that “it is imperative that membership requirements become more standardized so that legitimate rights-holders can be identified” and “the creation of appropriate membership tests before disputes arise is an urgent priority”. Thus, he argues, once the Métis Settlement member lists are established, it becomes “imperative” and an “urgent priority” that such lists be used to enhance certainty of membership in the Métis community. This interpretation is, however, inconsistent with what the Court expressly stated in Powley. That decision especially disclaimed setting out any definitive rules about determining Métis status. It noted that the determination of Métis status would have to continue “on a case-by-case basis”. There is nothing in the decision to support the concept that the government may only speak once on Métis status, regardless of the use to be made of any resulting list of Métis. Powley states that Métis membership lists would be desirable, not that they are a constitutional imperative, nor that there can only be one list. 36 The appellant supports his argument by reference to the later decision in Cunningham, which stated: 80 In R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, this Court was seized with the task of developing a test for identifying Métis aboriginal rights under s. 35 of the Constitution Act, 1982, and identifying the holders of such rights. We recognized that the term “Métis” used in s. 35 “refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recog- nizable group identity separate from their Indian or Inuit and Euro- pean forebears” (para. 10; see also para. 11). We further held that “[t]he inclusion of the Métis in s. 35 is based on a commitment to recognizing the Métis and enhancing their survival as distinctive communities” (para. 13). 81 While this case is not about defining entitlement to s. 35 rights, it is about the identification of membership requirements for Métis settlements for the purpose of establishing a Métis land base. The Court’s reasons in Powley suggest that Métis communities themselves have a significant role to play in this exercise. We wrote, at para. 29: As Métis communities continue to organize themselves more formally and to assert their constitutional rights, it is imperative that membership requirements become more standardized so that legitimate rights-holders can be identified. 324 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

82 The self-organization and standardization of the Métis community in Alberta is precisely what the Alberta legislature and the Alberta Métis have together sought to achieve in developing, agreeing upon and enacting the membership requirements found in the [Métis Set- tlements Act] and challenged here. The significant role that the Métis must play in defining settlement membership requirements does not mean that this exercise is exempt from Charter scrutiny. Neverthe- less, it does suggest that the courts must approach the task of reviewing membership requirements with prudence and due regard to the Métis’s own conception of the distinct features of their community. The appellant argues that the reference to “self-organization and standardization” confirms his interpretation of Powley: once membership lists are created, they must not be undermined by government. 37 The purpose of preparing lists of Métis Settlement members is quite specific; it establishes certain statutory rights, such as the right to vote in Settlement elections, and to reside on the Settlement. As Cunningham notes, the Métis Settlement lists establish “membership requirements for Métis settlements for the purpose of establishing a Métis land base”. The Métis Settlements Act does not purport to establish eligibility or membership criteria for all or any other purposes. The resulting membership lists cannot be universal, because not all Métis in Alberta are land-based, and there are many persons with s. 35 Métis aboriginal rights that are not on those lists. There is nothing in Powley or Cunningham to suggest that different Métis membership lists cannot be set for different purposes. The appellant’s argument effectively undermines all the criteria in Powley except the requirement for membership in a contemporary Métis community. 38 As the trial judge in Lizotte pointed out, the criteria for s. 35 rights set out in Powley differ somewhat from the rights of membership in a Métis Settlement. The analysis in Lizotte inappropriately undermines the importance of those differences. Powley specifically mentions in para. 33 that membership in a modern Métis community is not equivalent to being a Métis for the purpose of s. 35. While membership in a contemporary Métis organization is recognized as being relevant, the “contextual understanding of the membership requirements of the organization” is key. Powley confirms that s. 35 requires an ancestral link to a historic Métis community, something that is not a necessary requirement for membership in a Métis Settlement. There is not a necessary overlap between membership in a Métis Settlement and the entitlement to s. 35 rights. For example, it is possible for non-status Indians to be members of a Métis L’Hirondelle v. Alberta (M.S.R.D.) Frans Slatter J.A. 325

Settlement, but that might not entitle them to Métis aboriginal rights. Such a member, while aboriginal, might not self-identify with the Métis cultural community as required by Powley. Membership in a Métis Set- tlement requires five years of residency in Alberta, whereas Alberta Métis constitutional status requires not just five years residency, but a connection to a historic Métis community, and would arguably survive even if the Métis claimant became a non-resident of Alberta for a time. 39 The analysis in Lizotte undermines the criterion in Powley that the claimant of aboriginal rights show a historical connection to pre-Euro- pean contact and control. This, however, is a key factor in establishing aboriginal constitutional rights in Canada. The trial judge in Lizotte criti- cized the government for advocating “a rigid imposition of the Powley rules, ironically to limit rights”. But there is nothing ironic or improper about jealously guarding entrenched constitutional rights, and ensuring that only those truly entitled are allowed to assert those rights. Those who do enjoy such rights are entitled to expect that their rights will not be watered down by the recognition of unentitled claimants. 40 The appellant concedes the traditional role of the courts as the arbiter of constitutional issues, including Métis constitutional status. The appellant argues, however, that Alberta is required to give him a Métis domestic fishing licence, without question, upon production of his Métis Settle- ment identification. Presumably, Alberta would then be required to bring an application in court to have the fishing licence revoked if it challenged his status. This approach reverses the burden of proof. It is clear law that the burden of proving constitutional rights is on the proponent: R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.) at p. 1120-1. If there is a dispute between Alberta and the appellant over his status, it is up to the appellant to go to court to establish a prima facie violation of his Constitutional rights. 41 The practice of issuing Métis domestic fishing licences was obviously intended to bring some order to the exercise of aboriginal fishing rights. It eliminates the unsatisfactory procedure of trying to prove aboriginal status in individual prosecutions for breach of fishing regulations: R. v. Lefthand, 2007 ABCA 206 (Alta. C.A.) at paras. 25-7, (2007), 77 Alta. L.R. (4th) 203 (Alta. C.A.). It provides certainty to those who legiti- mately assert such rights, and also those who mistakenly believe they may have such rights. The appellant argued that even though the Crown is obliged to issue a Métis Domestic fishing license on production of a Métis Settlement identification card, the Crown could still collaterally 326 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

attack that licence during a prosecution for breach of general fishing regulations. That would, however, create the worst of all situations. There would be no order at all to aboriginal fishing, and no certainty even in holding a licence. 42 The appellant also argued that it imposes an unfair burden to expect him to have to prove his Métis status over and over again for different purposes. But it can be expected that the appellant kept any documents that were useful in proving his membership in the Métis Settlement. The Settlement is required by s. 81 of the Métis Settlements Act to keep a record of his proof of his status for that purpose, if only so that his direct descendants can also prove Métis status. The incremental effort required to prove his s. 35 status is an incident of having that status. It is an una- voidable fact that those who seek the benefits of constitutionally protected status will have to prove it at some point. As previously noted, such status should not be available just for the asking. 43 In summary, Powley does not create a rule that the government is only entitled to have one list of Métis status holders, which the government is required to use for all purposes. Notwithstanding what is written on his Métis Settlement identification card, the appellant is not entitled to s. 35 status just because he is a member of a Métis Settlement. Officer English was entitled to delay the issuance of a Métis Domestic fishing licence to the appellant pending further proof of his status.

Validity of the Policy 44 Whether the Alberta M´etis Harvesting Policy is compliant with the constitutional boundaries surrounding aboriginal rights is not raised by this appeal. No argument was presented to suggest that the M´etis Har- vesting Policy is under-inclusive, based on irrelevant considerations, too vague, or otherwise unconstitutional. None of these issues needs to be addressed.

Conclusion 45 As the appellant has failed to establish that he is entitled to a M´etis domestic fishing licence as of right on production of a M´etis Settlement membership card, he is not entitled to the relief he seeks. While the decision of the chambers judge discloses errors of law, in the end on a proper analysis the appellant has failed to establish his claim. The appeal is therefore dismissed. L’Hirondelle v. Alberta (M.S.R.D.) J.D. Bruce McDonald J.A. 327

46 The decision under appeal was founded on an argument not put forward by either party, and accordingly neither party should be responsible for any costs below.

Peter Costigan J.A.:

I concur:

J.D. Bruce McDonald J.A.:

I concur: Appeal dismissed. 328 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

[Indexed as: Brant v. Nova Scotia (Human Rights Commission)] Raymond James Brant, Applicant v. Nova Scotia Human Rights Commission and Nova Scotia Power Inc., Respondents Nova Scotia Supreme Court Docket: Bwt. 398760 2013 NSSC 56 C. Richard Coughlan J. Heard: December 18, 2012 Judgment: February 15, 2013 Human rights –––– Practice and procedure — Judicial review — Grounds — Requirements of natural justice –––– Complainant brought complaint with Nova Scotia Human Rights Commission for discrimination based on physical disability which he considered was factor in his not being hired by Nova Scotia Power — Complaint was dismissed — Complainant brought application seeking judicial review of decision — Application dismissed — Decision to dismiss complaint fell within range of acceptable outcomes which were defensible in respect of facts and law and therefore reasonable — Complainant participated in resolution conference — He was given opportunity to respond to recommendation — Procedural error of not providing complainant with copy of Nova Scotia Power’s post resolution conference submission did not result in procedural unfairness to complainant. Cases considered by C. Richard Coughlan J.: Bowater Mersey Paper Co. v. C.E.P., Local 141 (2010), (sub nom. Bowater Mersey Paper Co. v. Communications, Energy & Paperworkers Union of Canada, Local 141) 289 N.S.R. (2d) 351, (sub nom. Bowater Mersey Paper Co. v. Communications, Energy & Paperworkers Union of Canada, Local 141) 916 A.P.R. 351, (sub nom. CEPU, Local 141 v. Bowater Mersey Paper Co.) 2010 C.C.L.C. 220-022, 2010 CarswellNS 152, 2010 NSCA 19, 3 Ad- min. L.R. (5th) 261, 192 L.A.C. (4th) 193 (N.S. C.A.) — considered Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) (2012), 428 N.R. 107, 2012 SCC 10, 2012 CarswellNS 124, 2012 Car- swellNS 125, 31 Admin. L.R. (5th) 179, 316 N.S.R. (2d) 1, [2012] 1 S.C.R. 364, 343 D.L.R. (4th) 385, 94 M.P.L.R. (4th) 1, [2012] S.C.J. No. 10, [2012] A.C.S. No. 10 (S.C.C.) — considered Brant v. Nova Scotia (Human Rights Commission) C. Richard Coughlan J. 329

Statutes considered: Human Rights Act, R.S.N.S. 1989, c. 214 s. 29 — referred to

APPLICATION by complainant seeking judicial review of decision of Nova Scotia Human Rights Commission which dismissed complaint.

Raymond James Brant, Applicant, for himself Lisa Teryl, for Nova Scotia Human Rights Commission Rebekah L. Powell, Daniel McMillan (Articled Clerk), for Nova Scotia Power Inc.

C. Richard Coughlan J.:

1 Raymond James Brant seeks judicial review of the decision of David W. Shannon, Director and CEO of the Nova Scotia Human Rights Com- mission (Commission) dismissing Mr. Brant’s complaint against Nova Scotia Power Inc. (Nova Scotia Power). 2 In October 2009, Raymond James Brant responded to an employment posting by Nova Scotia Power for three CADD specialists. Mr. Brant, a draftsman, was given a job interview. Mr. Brant was not successful in obtaining one of the positions. Mr. Brant who has a physical disability considered his disability was a factor in his not being hired. 3 Mr. Brant completed an intake form with the Nova Scotia Human Rights Commission dated January 17, 2010 which was received by the Commission on January 19, 2010. By letter dated October 27, 2010 Mr. Brant was informed that the Human Rights Officer assigned to his case was unable to recommend the file be referred for a formal complaint. Mr. Brant requested a review of that decision. Krista Daley, then Director and CEO of the Commission by letter dated February 3, 2011 overturned the decision of the Human Rights Officer and returned Mr. Brant’s file to the dispute resolution unit for further processing. Mr. Brant did not file a formal complaint pursuant to the Human Rights Act, R.S.N.S. 1989, c. 214 within 12 months of the action complained of as required by section 29 of the Act. Mr. Brant requested an extension to the time in which he could file a complaint. Nova Scotia Power filed an objection to the extension being granted. Mr. Brant was given the extension for an additional period of time to make a complaint and was notified of the decision by letter dated November 8, 2011. 330 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

4 Mr. Brant then filed a formal complaint on November 16, 2011. A Resolution Conference was held February 21, 2012. Mr. Brant made submissions subsequent to the Resolution Conference. Nova Scotia Power provided the Commission with submissions following the Resolution Conference by letter dated February 22, 2012. The Human Rights Officer recommended to the Director and CEO of the Commission the complaint be dismissed as it raised no significant issue of discrimination. The parties were notified of the recommendation by letter dated February 27, 2008. 5 By letter dated May 24, 2012, David W. Shannon, Director and CEO of the Commission notified the parties of his decision the complaint be dismissed as it raises no significant issues of discrimination. 6 In the Notice for Judicial Review Mr. Brant sets out the grounds for the review which are attached to this judgment as an Appendix. 7 When asked at the hearing what procedural errors were made by the Commission, Mr. Brant identified the following. The Commission failed to establish the qualifications of the candidates granted the positions for which he applied. In both his written and oral submissions Mr. Brant identified the failure to obtain the qualifications of the successful candidates as the main or specific reason for seeking Judicial Review. 8 Other procedural errors identified by Mr. Brant were: 1. The failure of one of the members of the interview panel to attend the Resolution Conference conducted by the Commission and the Commission’s failure to contact that person. 2. Nova Scotia Power made a submission after the resolution conference which Mr. Brant did not receive. 3. The Commission did not contact Nova Scotia Power for fifteen months from the date Mr. Brant completed a Commission Intake Form outlining his complaint. 4. The Commission did not complete an investigation report concerning Mr. Brant’s complaint. 5. Mr. Brant also addressed the issue that his interview was a behavioural interview but does not say that was a procedural error. 9 The questions for the court to address is whether Mr. Brant was denied procedural fairness in the Commissions’s investigation of his complaint and secondly, if Mr. Brant was accorded procedural fairness did the Commission’s decision meet the appropriate standard of review. Brant v. Nova Scotia (Human Rights Commission) C. Richard Coughlan J. 331

Procedural Fairness 10 When dealing with issues of procedural fairness a court must determine whether a requirement of procedural fairness applies, and if it does the court decides if there was a violation of the duty without deference. In addressing the issue, Fichaud, J.A., in giving the court’s judgment in Bowater Mersey Paper Co. v. C.E.P., Local 141, 2010 NSCA 19 (N.S. C.A.) stated at paragraphs 30, 31 and 32: [30] The judge [¶ 8] gave no deference to the arbitrator in the judge’s assessment of procedural fairness. With that, I agree. I note parenthetically that deference is not withheld because of any standard of review analysis. The judge is not reviewing the tribunal’s ultimate decision, to which a “standard of review” is accorded. Rather, the judge assesses the tribunal’s process, a topic outside the typical standard of review analysis. In Nova Scotia (Provincial Dental Board) v. Creager, 2005 NSCA 9, this court said: [24] Issues of procedural fairness do not involve any deferential standard of review: Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, at para. 74 per Arbour, J.; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paras. 100-103 per Bin- nie, J. for the majority and at para. 5, per Bastarache, J. dissenting. As stated by Justice Binnie in C.U.P.E, at para. 102: The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations. This point is also clear from Baker v. Canada (Minister of Citizen- ship and Immigration), [1999] 2 S.C.R. 817. Justice L’Heureux- Dubé (paras. 55-62) considered “substantive” aspects of the tribunal’s decision based on the standard of review determined from the functional and practical approach but (para. 43) considered procedural fairness without analyzing the standard of review. [25] Procedural fairness analysis may involve a review of the statutory intent and the tribunal’s functions assigned by that statute: eg. Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884 at paras. 21-31; Imperial Oil Ltd. v. Quebec (Minister of the Environment), [2003] 2 S.C.R. 624 at paras. 31-32. But, once the court has determined that a requirement of procedural fairness ap- 332 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

plies, the court decides whether there was a violation without deference. To the same effect: Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, at ¶ 74; Nova Scotia v. N.N.M., ¶ 39; Allstate Insurance Company v. Nova Scotia (Insurance Review Board), 2009 NSCA 75, ¶ 11. [31] From the same perspective, in Kelly, Justice Cromwell described the two step approach to procedural fairness analysis: [19] The judge’s concern was not that the Board improp- erly exercised its discretion or that any decision or ruling it made was in itself reviewable. Those are the kinds of matters that we typically think of as engaging the standard of judicial review. The standard of review is generally applied to the “end products” of the Board’s deliberations, that is, to its rulings and decisions: see C.U.P.E. v. On- tario (Minister of Labour), [2003] 1 S.C.R. 539 at para 102. In this case, the judge was concerned that the process followed by the Board had resulted in unfairness — in other words, that the Board had failed in its duty to act fairly. This concern goes to the content of the Board’s duty of fairness, that is, to the manner in which its decision was made: C.U.P.E. at para. 102. [20] Given that the focus was on the manner in which the decision was made rather than on any particular ruling or decision made by the Board, judicial review in this case ought to have proceeded in two steps. The first addresses the content of the Board’s duty of fairness and the second whether the Board breached that duty. [32] Though the reviewing judge does not conduct “standard of review” analysis for procedural fairness, the judge must still determine the content of the duty of fairness. That duty does not just replicate the courtroom model. The duty’s content is context specific and depends on various factors, including the tribunal’s delegated room to manoeuvre that is contemplated by its governing statute, the nature of the tribunal’s decision and the decision’s importance to the parties: Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884, at ¶ 21-31; Imperial Oil Ltd. v. Quebec (Minister of the Environment), [2003] 2 S.C.R. 624, at ¶ 31-32; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at ¶ 79; Moreau-Bérubé, ¶ 74-75; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, ¶ 21-28; Kelly, ¶ 21-33; Creager, ¶ 25, 100-107; Nova Scotia v. N.N.M., ¶ 40-98 and authorities there cited. Brant v. Nova Scotia (Human Rights Commission) C. Richard Coughlan J. 333

12 Mr. Brant says the Commission should have reviewed the qualifications of the successful candidates. He says it was necessary for the Com- mission to have the qualifications to make its decision. The job description produced by Nova Scotia Power sets out the following: Skills, Capabilities and Experience: Community college education with a diploma in Architectural, Civil, Mechanical or Electrical drafting technology or equivalent post sec- ondary educational training. Three years skilled knowledge in Bent- ley’s Computer Aided Design Drafting applications: Microstation V8 or newer, Elementary Electrical Diagrams and Iras/B for raster edit- ing. Experience in substation design and layout of primary equipment and structures and electrical protection and control schematics. Knowledge in transmission line design and civil engineering technology would be an asset. You must be willing to participate in and successfully complete training packages related to CADD systems. 13 In his application Mr. Brant stated he did not have three years skilled knowledge in Bentley’s Computer Aided Design Drafting application. Mr. Brant says the job description produced by Nova Scotia Power is not the job description to which he responded but he did not produce any other job description. 14 Mr. Brant’s position was set out in a letter to Mr. Sean Hardy, the Human Rights Officer dealing with his claim dated February 22, 2012 when he stated: ... “There is a strong disagreement on the actual positions which were being considered in this competition. My position is that I applied because Nova Scotia Power was looking for people skilled in 3D Solid Modelling. I further state that in the requirements I read that Bentley was considered an asset. I have been made aware on a previous occasion that the position of Nova Scotia Power was that these were all in the electrical field. At that time I was also provided information as to the requirements for this position. I do not question that these qualifications were one part of the three positions that were being offered. From my recollection when reading information on these positions you would click on the field which you wish to gain the qualifications on, electrical, physical or civil. I would also state that although the position for electrical may state that Bentley was a must, the field for physical lists Bentley as an asset. It would require an inquiry as to the actual positions and what fields were being considered in the competition I applied for. In the discussion during the conference it became apparent that Nova Scotia Power also employs drafters in both the civil and physical dis- 334 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

ciplines. Nova Scotia Power’s explanation was that people were first employed in the development of electrical schematics before they could be considered for the other disciplines. It is interesting that in their Interview Guide they pose the question, “If you had to choose a discipline between Electrical, Civil or Physical, what would be you (sic) preferences and why”? I was asked out of the three positions they were filling which was I most suited for, electrical, physical or civil. At the time I enquired what they meant by physical. They explained that this was what they considered to be struc- tural/mechanical. I stated that this would be my strongest field. They all wholeheartedly agreed. It should also be made known that at the interview I expressed that electrical was my weakest.” .... 15 In a letter to Mr. Brant and Nova Scotia Power’s counsel dated Febru- ary 27, 2012 containing his recommendation, Mr. Brant’s complaint be dismissed Mr. Hardy stated: Summary of the response ....“The Respondent states that the decision not to hire the Complain- ant was based solely on his work experience, which they state was not a good fit for the position(s) applied for. Copies of the job posting (both the plain text document and a copy of the online posting) were provided, which detailed that the positions posted were electrical in nature, an area of expertise which they indicate the Respondent did not possess sufficient mastery of. The job posting also notes certain specific requirements for the position, specifically experience in both electrical design and in proficiency with specific software - which the Complainant did not possess, and the successful candidates did.” ... The Respondent notes that all questions asked of the Complainant during his interview were also asked of all other applicants, and provided a copy of the interview matrix used for all applicants. The Respondent provided examples of the work currently being done by the successful applicants, an intricate electrical schematic in support of their assertion that the positions were electrical in nature. They noted that each of the successful applicants had the relevant skills and the requisite experience and proficiencies, and that it was this, rather than the Complainant’s disability, which determined who would be successful in the posting. The Respondent indicated that the email the complainant received was a “form letter” email, one with only the names and addresses changed, and that each unsuccessful applicant received the same email. Brant v. Nova Scotia (Human Rights Commission) C. Richard Coughlan J. 335

Rationale for referring the complaint to the Direct and CEO for a decision The Respondent has successfully demonstrated, via the job posting (which was authenticated by one of its authors) that the position required both significant electrical experience and proficiency with specific electrical drafting software. The Complainant has acknowledged, both during the Resolution Conference held on February 20, 2012 and in his submissions to the Commission, that he had no proficiency in the relevant software, and that his electrical experience is limited. the Complainant asserts that the job posting referenced was not the one he applied for, but is unable to provide any evidence of this.” ... 16 Mr. Hardy did not review the qualifications of the successful candidates as based on his investigation he did consider it was necessary for him to do so - his determination Mr. Brant did not have the qualifications the position required. 17 Mr. Brant raises the fact that the first Human Rights Officer assigned to his complaint, Rosemarie Cadogan recommended Mr. Brant’s complaint be dismissed for failure to establish a prima facie case of discrimination. Mr. Brant requested a review of the decision. Upon review Krista Daley, the Director and CEO of the Commission overturned Ms. Cado- gan’s decision and returned Mr. Brant’s file to the dispute resolution unit for further processing. Any errors regarding delay in processing Mr. Brant’s complaint were addressed by granting Mr. Brant an extension of the time limit allowing him to file his complaint. 18 Another alleged error is the failure of the Commission to contact a Ms. Fillmore who was one of the members of the panel which inter- viewed Mr. Brant. Considering the findings of Mr. Hardy, it is apparent why he did not consider it necessary to contact Ms. Fillmore - his determination Mr. Brant did not have the qualifications the position required. 19 Mr. Brant says the Commission did not complete an investigative report in connection with his complaint. Nova Scotia Power says the absence of an investigative report is not before the court as its absence was not set out in the Notice for Judicial Review. In any event, the above mentioned letter of Mr. Hardy dated February 27, 2012 reports Mr. Hardy’s findings and recommendations following the resolution conference. 20 Mr. Hardy’s recommendation to Mr. Shannon, Director and CEO of the Commission is dated May 11, 2012. Mr. Brant says Mr. Shannon’s decision to accept Mr. Hardy’s recommendation was made on May 11, 336 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

2012 three minutes after Mr. Shannon received the request. In fact, there are a number of e-mails in the file which show the decision was not made on May 11. One e-mail dated May 13, 2012 from R. Ritchie Wheeler, Special Assistant to the Director and CEO to Mr. Brant provides: I wish to confirm that your file is now with Mr. Shannon’s office for review of the recommendation of Mr. Sean Hardy that your complaint be dismissed pursuant to s. 29(4)(c) of the NS Human Rights Act. Unfortunately, due to scheduling issues the Director and CEO will not be able to conduct this review until next week. Once this review is complete you will be notified of the outcome expeditiously. 21 The decision of the Director and CEO is dated May 24, 2012. There is no evidence Mr. Shannon signed Mr. Hardy’s memorandum on May 11, 2012 or made his decision that day. 22 Counsel for the Commission addressed a procedural irregularity which occurred during the investigation of Mr. Brant’s complaint. Subse- quent to the resolution conference, Nova Scotia Power’s counsel filed a submission to the Commission by letter dated February 22, 2012. Mr. Brant was not given a copy of the submission. Procedural fairness requires a complainant receive copies of any submission filed by the party which is the subject of a complaint so that the complainant has the ability to respond. 23 Does this error by the Commission require Mr. Brant’s complaint be referred back to the Commission for reconsideration? The issue of procedural errors was addressed in Administrative Law in Canada, Fourth Edi- tion by Sara Blake where the author stated at page 23: To determine whether fair procedure has been followed, one must examine the entire proceeding. Although procedural irregularities at one stage may appear to have prejudiced a party’s rights, they may diminish in significance if the party has been accorded a full and fair hearing at a later stage in the proceeding. A tribunal may cure its procedural defaults. In the end, the party may be seen not to have suffered any prejudice. and at page 214: “The question of procedural fairness is concerned with the manner in which the tribunal went about making the decision.” ... A court will interfere with a tribunal decision because of procedural errors committed by the tribunal only if those errors resulted in manifest unfairness to the right of a party to be heard. Minor procedural Brant v. Nova Scotia (Human Rights Commission) C. Richard Coughlan J. 337

lapses that do not result in unfairness to the complaining party will not persuade a court to overturn the tribunal decision.” ... 24 The failure to provide Mr. Brant with a copy of Nova Scotia Power’s post resolution conference submission did not result in manifest unfairness to Mr. Brant’s right to be heard. After receipt of the post resolution conference submission Mr. Hardy gave notice of his report and recommendation to the Director and CEO of the Commission to the parties. That report, Mr. Hardy’s letter to Mr. Brant and Nova Scotia Power dated February 27, 2012, includes a summary of Nova Scotia Power’s response to the complaint. Mr. Hardy’s letter then provides the parties to the complaint an opportunity to make written submissions concerning the recommendation prior to the Director and CEO making a decision as follows: Your right to make written submissions to the Director and CEO Prior to the Director and CEO making a decision, parties to the complaint have the right to provide written submissions regarding my recommendation. You are not obligated to do so, but if you choose to make written submissions, please forward them to our office for receipt no later than March 19, 2012. Per the Commission’s policy, submissions are restricted to five (5) single sided, letter-sized pages. Comments that are not legible will be returned without being considered. I will then place the matter before the Director and CEO who will review the file, including your submissions on my recommendation. The Director and CEO is not bound by my recommendation and will come to a decision based upon a review of all the information provided. The Director and CEO may decide to dismiss the complaint pursuant to section 29(4)(c), to dismiss it pursuant to another subsection of section 29(4), to refer it back for further investigation, or to refer it to the Commissioners of the Human Rights Commission for a decision. I am also enclosing a copy of section 29 in full for ease of reference. ... 25 Mr. Brant participated in the resolution conference. He was given an opportunity to respond to Mr. Hardy’s recommendation. Mr. Brant responded to Mr. Hardy’s recommendation by letter to David Shannon, Di- rector and CEO dated March 5, 2012. In the circumstances of this complaint, the procedural error of not providing Mr. Brant with a copy of Nova Scotia Power’s post resolution conference submission did not result in procedural unfairness to Mr. Brant. 338 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

26 In the handling of his complaint I find Mr. Brant was treated with procedural fairness. 27 Having determined Mr. Brant’s complaint was treated with procedural fairness I turn to the issue of the decision to dismiss Mr. Brant’s complaint. 28 Recently, in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10 (S.C.C.), the Supreme Court of Can- ada addressed the nature of the Commission’s role in deciding whether to refer a complaint to a board of inquiry and the standard of review. In giving the court’s judgment Cromwell, J. stated at paragraphs 20 and 23: [20] The Act sets up a complete regime for the resolution of human rights complaints. Within this regime, the Commission performs a number of functions related to the enforcement and promotion of human rights. With regard to complaints, it acts as a kind of gate- keeper and administrator. Under s. 29 as it read at the relevant time, the Commission was required to “instruct the Director [of Human Rights] or some other officer to inquire into and endeavour to effect a settlement” of a complaint, provided that the complaint is in writing in the prescribed form or that the Commission “has reasonable grounds for believing that a complaint exists”. [23] What is important here is that a decision to refer a complaint to a board of inquiry is not a determination that the complaint is well founded or even within the purview of the Act. Those determinations may be made by the board of inquiry. In deciding to refer a complaint to a board of inquiry, the Commission’s function is one of screening and administration, not of adjudication. 29 The court determined the standard of review for a decision whether to refer a complaint to the board of inquiry is reasonableness. 30 The Commission had Mr. Brant’s complaint, the written and oral submissions of the parties. It was able to consider the position of the parties and conclude from the evidence the complaint should not be referred to a board of inquiry but dismissed. 31 Having reviewed the material and heard the submissions of the parties, I find the decision to dismiss Mr. Brant’s complaint falls within the range of acceptable outcomes which are defensible in respect of the facts and law and therefore reasonable. 32 The application is dismissed. If the parties are not able to agree I will hear them on the issue of costs. Application dismissed. Farren v. Pacific Coast Amateur Hockey Assn. 339

[Indexed as: Farren v. Pacific Coast Amateur Hockey Assn.] Kevin Gerald Farren, Petitioner and Pacific Coast Amateur Hockey Association, Respondent British Columbia Supreme Court Docket: Vancouver S126836 2013 BCSC 498 Groves J., In Chambers Heard: October 17, 26; November 16, 2012 Judgment: March 22, 2013 Business associations –––– Creation and organization of business associations — Associations — Conduct of affairs — Miscellaneous –––– Availabil- ity of judicial review — Rules of natural justice — Where association acts in manner contrary to order of Superior Court — Respondent was voluntary society, minor hockey organization — Parent moved to new community and wished to register children with minor hockey associations under supervision of respondent — Parent did not receive timely decision on registration and brought application for judicial review — Respondent successfully resisted application on basis that parent had not complied with respondent’s internal dispute resolution process, and court ordered internal appeal hearing to be conducted within specific time frame — Respondent proceeded to schedule internal appeal hearing for date prior to court-ordered time frame and date on which parent was unavailable — No submissions were made on behalf of parent, and appeal was dismissed — Parent brought application for judicial review — Application granted — Adjudicative bodies of private associations are generally not amenable to judicial review — Specifically, respondent’s by-laws could expressly oust requirement to comply with rules of natural justice — However, in present case respondent’s decision, with benefit of legal advice, to ignore order of Superior Court called for remedy — Given limited scope of review from decisions of private associations, appropriate remedy was order in nature of mandamus compelling respondent to schedule fresh internal appeal hearing for date and time on which parent could attend. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Opportunity to respond and make submissions –––– Private associations — Where association acts in manner contrary to order of Superior Court — Respondent was voluntary society, minor hockey organization — Parent moved to new community and wished to register children with minor hockey associations under supervision of respondent — Parent did not receive timely decision on registration and brought application for 340 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

judicial review — Respondent successfully resisted application on basis that parent had not complied with respondent’s internal dispute resolution process, and court ordered internal appeal hearing to be conducted within specific time frame — Respondent proceeded to schedule internal appeal hearing for date prior to court-ordered time frame and date on which parent was unavailable — No submissions were made on behalf of parent, and appeal was dismissed — Parent brought application for judicial review — Application granted — Adjudi- cative bodies of private associations are generally not amenable to judicial review — Specifically, respondent’s by-laws could expressly oust requirement to comply with rules of natural justice — However, in present case respondent’s decision, with benefit of legal advice, to ignore order of Superior Court called for remedy — Given limited scope of review from decisions of private associations, appropriate remedy was order in nature of mandamus compelling respondent to schedule fresh internal appeal hearing for date and time on which parent could attend. Administrative law –––– Practice and procedure — On application for mandamus — Costs –––– Private associations — Costs against association where association ignores order of Superior Court. Cases considered by Groves J., In Chambers: Barrie v. Royal Colwood Golf Club (2001), 2001 BCSC 1181, 2001 CarswellBC 1814, 18 B.L.R. (3d) 21, [2001] B.C.T.C. 1181, [2001] B.C.J. No. 1740 (B.C. S.C.) — considered Clark v. Gilbert (1996), 1996 CarswellOnt 4830, 143 D.L.R. (4th) 166, 24 O.T.C. 137, [1996] O.J. No. 4415 (Ont. Gen. Div.) — followed Dickie v. British Columbia Lacrosse Assn. (1984), 1984 CarswellBC 1698, [1984] B.C.J. No. 439 (B.C. S.C.) — considered Garcia v. Kelowna Minor Hockey Assn. (2009), 2009 CarswellBC 460, 2009 BCSC 200 (B.C. S.C. [In Chambers]) — considered James v. Pacific Coast Amateur Hockey Assn. (1982), 1982 CarswellBC 1341, [1982] B.C.J. No. 266 (B.C. C.A.) — considered Lutz v. Faith Lutheran Church of Kelowna (2009), 2009 BCSC 59, 2009 Car- swellBC 93 (B.C. S.C.) — referred to North Shore Independent School Society v. B.C. School Sports Society (1999), 1999 CarswellBC 136, [1999] B.C.J. No. 143 (B.C. S.C.) — considered Sol Sante Club v. Grenier (2006), 25 B.L.R. (4th) 314, 2006 CarswellBC 2987, 2006 BCSC 1804, [2006] B.C.J. No. 3141 (B.C. S.C.) — followed Street v. B.C. School Sports (2005), 35 Admin. L.R. (4th) 133, 2005 BCSC 958, 2005 CarswellBC 1654, [2005] B.C.J. No. 1523 (B.C. S.C.) — considered

APPLICATION by parent for judicial review of decision of respondent minor hockey association dismissing parent’s appeal from decision in respect of association registration matter. Farren v. Pacific Coast Amateur Hockey Assn. Groves J. 341

K.G. Farren, for himself M.D. Shirreff, for Respondent

Groves J. In Chambers:

1 In a petition filed on the 28th of September 2012, Kevin Gerald Far- ren (“Farren”) sought relief against the Pacific Coast Amateur Hockey Association (the “PCAHA”), relief which would grant his children the ability to play hockey with two minor hockey associations in Richmond, B.C. On that date, Farren appeared before me in Chambers on a without notice basis and advised me of the following. 2 In his affidavit and orally, Farren advised that he is the father of three children - two sons and a daughter - and that his family had recently moved to Richmond, B.C. His children were all interested in playing hockey in Richmond. The sons wished to play hockey in the Richmond Minor Hockey Association (“Richmond MHA”) and his daughter wished to play hockey in the Richmond Ravens Minor Hockey Association (“Richmond Ravens MHA”). Farren further advised the Court that the deadline for hockey registration was imminent. He stated he had applied to the PCAHA to transfer his children to the Richmond associations from associations in his previous location of Cloverdale. He advised the Court that there had been substantial delay which he credited to personal diffi- culties he had with officers of the PCAHA. He further advised that he had been promised a decision one way or the other in a timely way that would allow enough time to register his children. Despite this promise, the decision had not been forthcoming and the deadline was fast approaching. 3 Attached to his affidavit was a letter dated September 17, 2012 in which he requested the PCAHA’s permission to transfer his children. Additionally, his sworn affidavit attached information regarding his move, including the fact that his Cloverdale home had been foreclosed upon by way of Order Nisi in December 2012, that he no longer intended to live in the Cloverdale home, that he would be purchasing a home in Richmond, and that he had rental arrangements in Richmond. The Rental Agreement was attached, as were a number of bank and utilities statements and driver registration documents which showed a Richmond address. 4 At the hearing on the 28th of September, 2012, I inquired with Farren in regards to service on the respondent and the appropriateness of a without notice application. Farren indicated to me that he was facing a dead- 342 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

line and, if the order was not granted, his two sons would miss their opportunity to be registered with Richmond MHA and his daughter would miss her opportunity to be registered with Richmond Ravens MHA. 5 Having reviewed the material, I granted Farren an order, directing that his children be registered with the appropriate Richmond organizations and that the PCAHA had liberty to apply to set aside the decision on seven days’ notice. 6 An application to set aside my order was subsequently filed on the 5th of October 2012. It was initially heard on October 17, 2012. As part of the affidavits filed by the PCAHA in support of the application, I became aware for the first time that Farren had, in February 2012, applied for a similar order before the Chief Justice of the Supreme Court and his application was dismissed. Additionally, when the application to set aside my order was first heard on October 17, 2012, counsel for the PCAHA indicated to the Court that an internal appeal mechanism within the Constitution, Bylaws, Rules and Regulations of the PCAHA had not been utilized by Farren. 7 After hearing from both parties, I determined on the 17th of October, 2012, that the petitioner was obligated, prior to coming to court for judicial review, to exhaust the internal appeal mechanisms within the PCAHA. I directed that an appeal be held within the timeframe of Tues- day, October 23 to Thursday, October 25. I then directed that the matter be back before me on Friday, October 26, 2012. 8 Despite the clear direction in my orders, the PCAHA held the appeal hearing on October 21, 2012, a date outside the directives of the Court and a date on which Farren indicated he could not attend. 9 Farren sent an email to the PCAHA confirming that he was available to have an appeal heard during the day on the 23rd, 24th, or 25th of October, consistent with my directions. 10 The affidavit evidence before me suggests that Farren advised the PCAHA that he would be out of town working on the date they proposed. 11 Nonetheless, the appeal was heard on Sunday, October 21st. Farren did not attend, and he does not appear to have been able to make any submissions to the appeal panel. Farren’s appeal was denied. 12 The threshold for any applicant seeking to set aside and/or have a judicial review of an order, direction or ruling of a volunteer organization or domestic tribunal is a high one. Farren v. Pacific Coast Amateur Hockey Assn. Groves J. 343

13 In North Shore Independent School Society v. B.C. School Sports So- ciety, [1999] B.C.J. No. 143 (B.C. S.C.) at para. 37 [North Shore], Jus- tice Brenner (as he then was) set out the following: [The] cases show that the courts are prepared to interfere with the decision of a domestic tribunal where it can be shown that the tribunal exceeded its jurisdiction or failed to comply with the rules of natural justice or otherwise acted in bad faith. What these cases also demonstrate is the reluctance of the courts to intervene by substitut- ing the court’s judgment for the judgment of the tribunal on a matter of substance within the tribunal’s jurisdiction. [Emphasis added.] As with the PCAHA in the instant case, the tribunal in North Shore was a “private, self-governed, voluntary organization”. 14 In Ontario, Clark v. Gilbert (1996), 143 D.L.R. (4th) 166 (Ont. Gen. Div.), at 177, (1996), 24 O.T.C. 137 (Ont. Gen. Div.), articulated the same standard of review for decisions of “voluntary” organizations: In this matter this court should not sit as a court of appeal and should not interfere in the dispute resolution process of a voluntary organization unless the organization exceeded its jurisdiction, the proceedings are contrary to natural justice or fairness, or the decision was not made in good faith. [Emphasis added.] 15 The PCAHA provided the case of Dickie v. British Columbia Lacrosse Assn., [1984] B.C.J. No. 439 (B.C. S.C.), which states that “with the exception of enforcing the Human Rights Code[,] the Courts by and large do not interfere in the internal management of amateur sports” (para. 14). I do not believe this statement contradicts the subsequent ar- ticulation in North Shore of when courts can intervene in the affairs of a voluntary organization. 16 The B.C. Court of Appeal decision in James v. Pacific Coast Amateur Hockey Assn., [1982] B.C.J. No. 266 (B.C. C.A.) [James] indicates that the PCAHA is entitled to define its own procedures, and those procedures are free to violate (at least certain) rules of natural justice if they do so expressly (see paras. 19, 21). However, where the bylaws are silent on a procedural issue, the procedure that is ultimately used must comply with the rules of procedural fairness (James at para. 21; see also Lutz v. Faith Lutheran Church of Kelowna, 2009 BCSC 59 (B.C. S.C.)at para. 87 [Lutz]). 344 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

17 In James, Justice Anderson, for the majority, wrote: [19] I note that there is the appearance of bias with Mr. Ackert making the original decision and then sitting on the appeal: See Kane v. UBC Board of Governors (1980) 18 B.C.L.R. 124 (S.C.C.). If the appellant’s rules oblige their President to do this no denial of natural justice arises on this point. ... [21] Finally, there is the matter of what procedural content and safeguards were required by fairness and natural justice at the appeal hearing: See Nicholson v. Haldimand-Norfolk (1978) 23 N.R. 410. The rules of the appellant Association govern. Where they are silent the Executive Committee has a discretion as to the form of procedure before it: See Enderby Town Football Chub v. F. A. [1971] 1 Ch. 591 at 605 (C.A.). But that discretion must be governed by the dic- tates of procedural fairness. And where the consequences are serious and the issues require a judicial (rather than ministerial or administrative) approach then fairness will call for more safeguards. [Emphasis added.] 18 There is limited further judicial consideration of James. James of course does deal directly with the appeal process of the PCAHA and is binding. That being said, it does not appear that the issue grappled with in James is relevant in the instant case. The section of the PCAHA Con- stitution and By-Laws that deals with the Appeals Committee (s. 68 at p. 52-53) does not appear to set the procedure for appeal hearings. As a result, the procedure that is ultimately used at a hearing must abide by the rules of natural justice/procedural fairness. 19 To determine which principles of natural justice/procedural fairness apply to any given decision, the Court must look at (1) the nature of the organization and (2) the seriousness of the consequences of the decision: “The requirements of procedural fairness determined by courts to apply to the disciplinary proceedings of voluntary organizations depend on the nature of the organization and the seriousness of the consequences of the discipline” (Barrie v. Royal Colwood Golf Club, 2001 BCSC 1181 (B.C. S.C.) at para. 59 [Barrie]). For example, decisions of unions that will impact a person’s livelihood will require more procedural safeguards; decisions of social clubs that require collegiality among members and have a less serious impact on people’s lives will require fewer procedural safeguards (Barrie at paras. 60 - 63). 20 In Garcia v. Kelowna Minor Hockey Assn., 2009 BCSC 200 (B.C. S.C. [In Chambers]) [Garcia], Justice Barrow found that the decision- Farren v. Pacific Coast Amateur Hockey Assn. Groves J. 345

making process for suspending a parent from a minor hockey association required a similar level of procedural fairness as the process for expelling someone from a golf club. As is evidenced by the following extract, this included an obligation on the decision-maker to (1) approach the hearing in good faith and with an open mind, (2) provide notice of the hearing to the impacted party(s), and (3) give the impacted party(s) an opportunity to be heard in his/her own defence: [26] ... Edwards J. in Barrie v. Royal Colwood Golf Club, 2001 BCSC 1181, held that procedural fairness requires that the decision makers approach their task in good faith and with open minds. In addition, particularly where disciplinary action is being contemplated against a member, he held that a society is obliged to give notice to the member of the possibility of expulsion and provide the member with an opportunity to be heard in his own defence ... [27] I am satisfied that the duty of procedural fairness has a similar content in the context of the matter at hand. [Emphasis in original.] 21 Not every procedural misstep amounts to a denial of natural justice or procedural fairness. In Street v. B.C. School Sports, 2005 BCSC 958 (B.C. S.C.), Justice Silverman was faced with a decision of the defendant society that suffered from numerous technical deficiencies. Justice Silverman ultimately asked if, despite the procedural imperfections, the process had been fundamentally fair (paras. 86 and 91). 22 However, even if the process has not been fundamentally fair, a remedy will not necessarily follow. The cases indicate that a finding of procedural unfairness should not result in an order for a new hearing if the order would be pointless. In other words, if the Court is confident that a new hearing would garner the same result, there is precedent that the decision should be validated and a new hearing should not be ordered. At para. 36, the judgment in Garcia quoted the following from Robert E. Forbes, Judicial Review of the Private Decision-Maker: The Domestic Tribunal (1976) 15 U.W.O. L. Rev. 123 at 148-149: there is little sense in ordering [a domestic tribunal] to remake its decision, for example, where it has failed to comply with the principles of natural justice, when that body may, and most likely will, form the same conclusion again, and no deprivation of property, employment, etc. has resulted in the intervening period from the previous decision. 23 It should be noted, though, that the decision-makers would be obliged to approach a new hearing in good faith and with open minds (see Gar- 346 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

cia at paras. 26-27), so the result of a new hearing may not be a foregone conclusion. Sol Sante Club v. Grenier, 2006 BCSC 1804 (B.C. S.C.)is one example of procedural shortcomings resulting in judicial intervention: [48] In Barrie v. Royal Colwood Golf Club (2001), 18 B.L.R. (3d) 21, 2001 BCSC 1181, Edwards J. outlined the circumstances under which it is appropriate for a court to interfere with a social club board’s decision to expel: It follows that judicially overturning a social club’s disciplinary proceedings by applying a rigorous standard of procedural fairness makes sense only where there has been a procedural shortcoming is [sic] so egregious, such as failing to provide any hearing at all, that rectifying it by requiring a new proceeding may very well result in a different result following a reconsideration. (at para. 69) [49] The Board’s actions do reveal such a procedural shortcoming, such that Mr. Grenier was not provided with any hearing at all, and such that if the appropriate measures of procedural fairness had been afforded to Mr. Grenier the voting members of the Club may have decided differently. Accordingly, this is an appropriate case for judicial intervention. 24 In Lutz, Justice Meiklem came to a similar conclusion: [101] I do not infer that it is inevitable that the same result of exclusion will be arrived at if the respondent proceeds with discipline of the petitioners in compliance with its Bylaws and procedural fairness following my order setting aside the letters of exclusion, but there is certainly that possibility. 25 To summarize the foregoing, failure to abide by the rules of natural justice can lead (and has led) to intervention by the court in the affairs of voluntary organizations or domestic tribunals. However, if the organization’s bylaws expressly authorize/require the breach of natural justice, there appears to be no basis for intervention. 26 Which procedural safeguards are required is determined by the nature of the organization and the seriousness of the decision. A suspension from a minor hockey association, which is somewhat similar to the facts at hand, requires at least (1) that the decision-makers act in good faith and with an open mind, (2) that the affected person have notice of the hearing, and (3) that the affected person be given a right to respond. 27 Whether procedural deficiencies amount to a denial of natural justice can be assessed by asking if, “although imperfect, the process was funda- Farren v. Pacific Coast Amateur Hockey Assn. Groves J. 347

mentally fair?” In the event that it was not fundamentally fair, the Court can still decline to order a remedy if it is convinced the remedy would be ineffectual. But the decision-makers would be obliged to approach a new hearing in good faith and with open minds. 28 I have concluded that, as a result of the actions of the PCAHA, it is appropriate for the Court to intervene. Frankly, it is surprising that an organization, with competent legal counsel, would ignore the direction of a court in regards to the procedure of an appeal and the time parameter (which was not contested or objected to when set by the Court on Octo- ber 17, 2012). 29 Whether it is surprising or not is, of course, not the test. The test is whether the domestic tribunal, here the Appeal Committee of the PCAHA, failed to comply with the rules of natural justice when it, effectively, deprived the petitioner of the ability to argue his case. Did they approach the appeal hearing with an open mind, provide notice and give the impacted party an opportunity to be heard? I find they did not. 30 Again, the Court directed that the appeal be held on certain dates. The PCAHA, for matters of its own convenience and scheduling, and despite the fact that the petitioner was not available, and that the date they chose was outside the date directed by the Court, held an appeal in the absence of the petitioner. This simply does not meet the test of affording someone the basic premise of natural justice. Natural justice requires that a person have the opportunity to appear before, in this case, an appellate body and state his or her case. To set the matter when it was clear to the organization, and thus to the appellate body, that the petitioner could not attend makes a mockery of natural justice. 31 That being said, the Court should interfere as little as is necessary with a voluntary organization to ensure a balance between requiring voluntary organizations to abide by the rules of natural justice, on the one hand, and not interfering unduly with volunteer organizations as they conduct their business, on the other. 32 I have determined that the appropriate remedy is to direct that the PCAHA abide by the directions of the Court and conduct an appeal with an opportunity for Farren to attend. As such, I direct the following: 1. The appeal is to be held on either April 23 or 24, 2013 and is to commence at 4:00 p.m. I will leave it to the parties to review their respective schedules, for the PCAHA to undertake or to find persons who can sit on the appeal during those hours and for Farren to make the necessary adjustments to his work schedule. 348 ADMINISTRATIVE LAW REPORTS 53 Admin. L.R. (5th)

2. Farren is to provide to the PCAHA all the affidavit materials he intends to rely on at the appeal and, if he intends to call witnesses, a brief summary of what all witnesses will say, by no later than Wednesday, April 4, 2013 at 5:00 p.m. 3. The PCAHA is directed to provide Farren all the affidavit material they intend to rely on at the appeal and, if they intend to call witnesses, a brief summary of what all witnesses will say, by no later than Monday, April 15, 2013 at 5:00 p.m. 33 Turning to a final issue, the PCAHA applied on November 16, 2012 to introduce new evidence. The effect of this application is to challenge Farren’s assertion that he was working as a hockey scout in the Kootenays when the appeal was heard and thus could not attend. The new evidence indicates that Farren’s “boss”, the person who required him to go to the Kootenays, is a friend and a fellow coach. There is also a suggestion, subtly raised, that something nefarious is afoot because the “boss”, a Mr. Nagler, when he himself applied to get permission for a player move for his children, had his signature witnessed by the same lawyer who later witnessed Farren’s affidavit. 34 I have considered this evidence. I have, as such, allowed the application to introduce new evidence. This new evidence is not at all compelling. One can have a boss who is a co-coach or a friend. I am satisfied Mr. Farren was in the Kootenays working when the appeal was sched- uled outside the time directed by the Court. The issue of using the same lawyer to witness affidavits is, frankly, ridiculous. Nothing can be drawn from that, other than the poor reflection it has on the approach to this matter by the PCAHA. 35 In light of the conduct of the PCAHA in ignoring the clear direction of the Court as to the date of the appeal, and the success of Farren, it is, in my view, appropriate for the PCAHA to pay costs which I fix at $750. Those costs are to be payable forthwith. Application granted.