Date: 2000106
Docket: T-906-99
Ottawa, Ontario, the 6th day of January, 2000
Present: The Honourable Mr. Justice Pelletier
BETWEEN :
INVERHURON & DISTRICT RATEPAYERS" ASSOCIATION
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
THE ATOMIC ENERGY CONTROL BOARD and
ONTARIO POWER GENERATION INCORPORATED
Respondents
REASONS FOR ORDER and ORDER
[1] The applicant Inverhuron & District Ratepayers" Association makes this application for leave to file a supplementary affidavit with respect to a judicial review application which is to be heard on January 10, 2000. The application is vigorously opposed by the respondents.
[2] The judicial review application seeks to set aside the environmental assessment process which led to the approval of a nuclear waste storage facility at the Bruce Nuclear Power Development. One of the grounds on which it is sought to set it aside is that it did not properly consider the uncertainty as to the environmental effects of the project as they would affect human health. As part of its case, the applicant filed an expert opinion which incorporated a summary of a study done for the respondent Atomic Energy Control Board which showed that there was a higher than expected incidence of childhood leukemia within a 25 mile radius of two nuclear power stations, one of which was the Bruce Nuclear Power Development. The respondents filed the affidavit of Ms. Suzana Fraser in response in which she expressed the opinion that the higher incidence of childhood leukemia was not statistically significant. Cross-examinations on affidavits were conducted on the basis that the evidence was all in. Written submissions were prepared, served, and filed on the basis that the evidence was all in. When all were completed, the applicant communicated to the respondents that it wished to file further affidavit evidence in reply to the evidence of Ms. Fraser. This was unequivocally opposed by the respondents. Ultimately, a notice of motion was served and filed, returnable January 10, 2000. Arrangements were made to have the application heard on January 5, 2000.
[3] The affidavit sought to be filed is that of Dr. David Hoel, a distinguished scientist whose opinion it is that the statistical analysis utilized by Ms. Fraser is inappropriate and results in an erroneous conclusion as to the statistical significance of the observed frequency of childhood leukemia. Dr. Hoel is also critical of the statistical analysis employed by the original authors of the report and finds that they too drew erroneous conclusions as to the statistical significance of the data.
[4] The grounds upon which it is sought to introduce this evidence is that it is relevant and admissible and that the delay in filing the material is explained. The application is opposed on the ground that it amounts to splitting the applicant"s case and that it will prejudice the respondents given that the hearing date is days away. The significance of the hearing date is that this matter has been under case management for some time, as a result of which a schedule and a hearing date were set. All parties have been working with that schedule in mind. Given the crowded condition of the docket, finding another date for the hearing of this application will delay it considerably.
[5] The Federal Court of Appeal in Munsingwear Inc. v. Prouvost S.A., [1992] 2 F.C. 541 at p. 546 held that an applicant seeking an extension of the time to file an affidavit must satisfy the court of the following:
| A party asking the court for leave to file a document out of time pursuant to Rule 704(8) must meet the test which Strayer J. defined as follows in Maxim's Ltd. v. Maxim's Bakery Ltd.(1990), 32 C.P.R. (3d)240(F.C.T.D.)at p. 242: |
| The jurisprudence is clear that in an application for anextension of time under Rule 704(8), the court should take into account both the reasons for the delay and the intrinsic worth of the affidavits (i.e., relevance, admissibility, and potential use to the court). It has been said in some of the cases that both factors must be weighed |
| together: see McDonald's Corp. v. Silcorp Ltd./Silcorp Ltée (1987), 17 C.P.R. (3d) 478 at pp. 479-80, 16 C.I.P.R.107 (F.C.T.D.); Joseph E. Seagram & Sons v. Canada (Registrar of Trade Marks) (1988), 23 C.P.R. (3d) 283 at p. 284, 13 A.C.W.S. (3d) 36 (F.C.T.D.). Accepting this to be the correct approach for present purposes, I understand it to mean that one must still weigh the seriousness of the delay against the potential value of the affidavits and that either may outweigh the other. |
[6] On the other hand, if one considers this as a case of filing reply evidence, the jurisprudence takes a slightly different approach: Ruggles v. Fording Coal Ltd, [1999] F.C.J. 906 (T.D.)
| Rule 84(2) provides that: |
| A party who has cross-examined the deponent of an affidavit filed in a motion or application may not subsequently file an affidavit in that motion or application except with the consent of all other parties or with the leave of the Court. |
| This provision is similar to that found in the previous Federal Court Rules as Rule 332.1(6). |
| [para6] The law as to filing of supplemental affidavit material after cross-examination is set out by Mr. Justice Dubé in Guylaine Coté v. The Queen, an unreported 27 May 1992 in action T-1206-89. Mr. Justice Dubé referred to Rule 332.1(6), considered various earlier cases and concluded that three tests emerged from that case law, tests to be satisfied in order to obtain the leave of the Court: |
| (1) was the information in the affidavit available before the cross-examination? |
| (2) are the facts established by the supplementary affidavit relevant to the case? |
| (3) might the filing of the supplementary affidavit cause serious prejudice to the other parties? |
[7] It is my view that the test to be applied is the Ruggles test. This is not simply a request for an extension of time. It is a request to file further evidence at a time when the evidentiary phase of the process would otherwise be closed.
[8] I am not satisfied that the Affidavit of Dr. Hoel should be filed at this time. My reasons are set out below.
[9] The evidence of Dr. Hoel is directed to an issue which was clearly within the contemplation of the parties at the time the application was launched. It was thought at that time that the issue was "covered" by the evidence of the experts retained by the applicant who put the AECB report (or a summary of it) into evidence.
[10] The evidence which is sought to be put through Dr. Hoel is evidence which was available at the time of the initial filings. It is true that the applicant had not sought Dr. Hoel"s opinion at that time but his expertise was available and was in the public domain by reason of his extensive publications as evidenced by his curriculum vitae. A party is bound to put its best case forward at the first opportunity. To allow the evidence in now is to allow the applicant to buttress its case after the respondents have crafted their case to meet the case presented by the applicant.
[11] The respondents say that the facts to be put in by Dr. Hoel are of marginal relevance to the case, as the purpose of judicial review is not to settle scientific controversies but rather to determine whether the decision maker acted according to law. The applicant says that this evidence is very important to their case and that it should go in so that the entire record is before the court. I agree with the comments of Strayer J. (as he then was) in Vancouver Island Peace Society v. Canada [1992] 3 F.C. 42 at p. 48-49:
| In relation to decisions taken under section 13 as to whether there is such public concern as to make a public review "desirable", I agree with MacKay, J. that the Court is entitled on judicial review to see if the Minister acted in good faith and took into account relevant considerations. Unless the Court is satisfied that the decision was made on completely irrelevant factors it cannot In relation to decisions taken under section 13 as to whether there is such public concern as to make a public review "desirable", I agree with MacKay, J. that the Court is entitled on judicial review to see if the Minister acted in good faith and took into account relevant considerations. Unless the Court is satisfied that the decision was made on completely irrelevant factors it cannot quash such a decision. It is not for the Court to substitute its own assessment of the weight and nature of public concern and determine that a public review is or is not "desirable". |
| Within this restricted role of the Court, there is no place for the presentation of factual or expert opinion on the nature or degree of potential environmental effects as such. What the Court and therefore the parties must address is (1) whether the activity comes within the guidelines and an initial assessment is as a matter of law required by section 10; (2) whether the initiating department has carried out such an assessment under section 12; (3) if so, whether a decision was purportedly made under section 12 but wholly without regard to relevant factors; and (4) if a determination has been made under section 13, whether that has been made wholly without regard to relevant factors. |
[12] While these comments are made in reference to a different statutory scheme, they apply to this situation. The statutory criteria which the Minister must consider include a determination as to whether there was uncertainty about the extent of environmental effects of radiation on human health. I leave open whether an expert opinion formed some time after the Minister"s determination has been made is relevant to that issue and simply say that the issue of uncertainty is before the Court even without this evidence, having regard to the voluminous scientific literature referred to by all the experts.
[13] Prejudice is to be assessed in context. In this case, the parties have engaged in a long process of case management which led to a hearing date being set some months ago. All have governed themselves according to the schedule dictated by that hearing date. Given the difficulty of obtaining hearing dates, the possibility of losing that hearing date to accommodate cross examinations and motions for leave to file affidavits in reply to Dr. Hoel"s represents a significant prejudice to all parties, not simply the respondents. It is unfair to expect the parties to compress all that would need to be done to accommodate the introduction of this evidence into 3 days on the eve of a hearing for which two and one half days have been set aside. If the interests of justice demanded it, the hearing date would have to be sacrificed, but I am not satisfied that justice requires that the affidavit of Dr. Hoel be before the Court though I appreciate why the applicant would like to see it there.
[14] For these reasons, the motion is dismissed. The question of costs will be addressed in the context of the costs of the judicial review application.
O R D E R
The motion is dismissed.
"J.D. Denis Pelletier"
Judge