Date: 20000821
Docket: T-1235-00
BETWEEN:
FRIENDS OF POINT PLEASANT PARK,
an unincorporated association and
PHILIP DESMOND PACEY; and STEPHANIE ROBERTSON;
and IAIN COOPER TAYLOR
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
O"KEEFE J.
Factual Background
[1] This is an application for an interlocutory injunction made by Friends of Point Pleasant Park, an unincorporated association, Philip Pacey, Stephanie Robertson and Iain Taylor ("applicants"). The application was dated July 31, 2000. The injunction sought by the applicants would prohibit the cutting down of trees in and around Point Pleasant Park, Halifax Regional Municipality, Halifax, Nova Scotia. On August 15, 2000, I issued an Order granting interlocutory relief and the following are the reasons for my Order.
[2] In or about 1990, authorities found that many stands of conifers in Point Pleasant Park were dead and/or showing signs of ill health and that these conifers would have to be cut down. At the time, authorities were going to cut down approximately 50% of the park"s trees as it was believed that the trees were infected with the spruce bark beetle. Pitch tubes or rivers of sap flowing down the trees were the evidence given specifically identifying infestation.
[3] As a result of this announcement, the applicant Stephanie Robertson and others conducted a spruce bark beetle survey in the park in the summer of 1990. A total of 1,071 bark beetles were collected and any beetle whose identification was doubtful was sent to a federal entomologist at the Biosystematics Institute in Ottawa (now Canadian Food Inspection Agency or "CFIA") for identification. None of the bark beetles collected were found to be the spruce bark beetle thought to be infecting the park trees. After this survey, the authorities decided not to cut the trees.
[4] In addition to the 1,071 bark beetles, the 1990 survey also produced 17 wood-boring beetles which were in fact the European Brown Spruce Long-Horn Beetle ("BSLB"), but in 1990 were misidentified as three local varieties of beetle.
[5] In either 1996 or 1998, the authorities correctly identified the 17 Brown Spruce Long-Horn Beetles.
[6] According to the affidavit of Stephanie Robertson, Canadian Forestry Services, in the summer of 1999, carried out a BSLB collection and trapping program but were unsuccessful in trapping any BSLB. They also set wood bolt traps which are used to attract egg laying insects. These traps were taken back to Fredericton and kept in the lab until spring to see what would emerge. In fact, Brown Spruce Long-Horn Beetles did emerge.
[7] On May 19, 2000, a draft Plant Health Risk Assessment was issued. A further Plant Health Risk Assessment was issued bearing date May 31, 2000. Both of these documents were imprinted with the words "Draft for Comment".
[8] A survey prepared for CFIA by the Nova Scotia Department of Natural Resources ("NSDNR") bearing date June 8-10, 2000 and entitled "Point Pleasant Park Forest Health Survey" was also imprinted with the word "DRAFT".
[9] On June 14, 2000, the respondent issued a "Notice to Dispose" to the Halifax Regional Municipality. The Notice required the Municipality to:
| Render and hand over to an inspector of the Canadian Food Inspection Agency (CFIA) for cutting down, incinerating and disposition of stumps by the CFIA, all trees that are infested or suspected of being infested with Brown Spruce Long-Horn Beetle (Tetropium Spp.). |
[10] The Plant Health Risk Assessment was issued bearing date June 26, 2000. This is the first Plant Health Risk Assessment that was not marked draft.
[11] Attached to the affidavit of Stephanie Robertson is a copy of a Plant Health Risk Assessment dated May 24, 2000 and marked "Draft for Comment".
[12] Cutting of the trees in Point Pleasant Park commenced on July 31, 2000.
[13] In the park, approximately 10,000 of the park"s approximately 70,000 trees are infected by some form of insect.
[14] The cutting ordered by the June 14, 2000 disposal order will fell approximately 14% of the trees in Point Pleasant Park.
[15] In May, 2000, the applicant Stephanie Robertson, was approached by others who were concerned about the reported "emergency situation in Point Pleasant Park that necessitated the cutting of 10,000 trees". She was aware of the similar situation in 1990 as she had authored a report on their survey of Point Pleasant Park.
[16] On June 16, 2000, Stephanie Robertson, concerned Halifax Regional Municipality residents, naturalists, biologists and scientists met to discuss the situation. They agreed to investigate in various ways the claims made by the CFIA task force that the "presence of the Brown Spruce Long-Horn Beetle, t. fuscum in Point Pleasant Park posed a grave threat to the park, Nova Scotia and consequently the entire North American lumber industry".
[17] The task force on the Brown Spruce Long-Horn Beetle met for the first time on June 6, 2000. This task force was set up by CFIA to "provide scientific, operational and other advice to the Canadian Food Inspection Agency with respect to the need to eradicate the Brown Spruce Long-Horn Beetle in Nova Scotia".
[18] The Minister of Agriculture and Agri-Foods Canada took the decision to regulate the Brown Spruce Long-Horn Beetle in Canada a pest on or about May 30, 2000.
[19] The applicant, Iain Taylor resides on Chain Lake Drive and his property directly adjoins Point Pleasant Park with a 60 foot frontage on the park.
[20] Mr. Taylor has been actively involved in meetings of concerned citizens and scientists who convened to review the findings of the CFIA and the task force. He is the official spokesperson for the concerned citizens group.
[21] The Halifax Regional Municipality by letter dated August 4, 2000 stated that it would not be participating in this motion.
Issues
| [22] 1. Should the Halifax Regional Municipality be added as a respondent before |
the motion is heard?
| 2. Do the applicants have standing before this Court? |
3. Should an interlocutory injunction issue?
Analysis and Decision
| Issue 1 |
Should the Halifax Regional Municipality be added as a respondent before the motion is heard?
[23] At the hearing of this motion, the solicitor for the respondent stated that the Halifax Regional Municipality should have been named as a respondent, as Rule 303(1) of the Federal Court Rules, 1998 states that an applicant shall name as a respondent every person "directly affected by the order sought in the application, . . .". The Halifax Regional Municipality sent a letter stating that it did not wish to take part in the application and that letter is part of the record. Counsel for the respondent also indicated to the Court that this motion could still proceed despite the absence of the Municipality as a party. In the circumstances of this motion, I do not believe that it is necessary to add the Municipality as a party before proceeding with the motion.
| Issue 2 |
Do the applicants have standing before this Court?
[24] The law with respect to standing in these types of motions has been thoroughly canvassed by Evans J. in Sierra Club of Canada v. Canada (Minister of Finance) [1999] 2 F.C. 211 (F.C.T.D.) at pages 228 - 230:
| 18.1(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. [Emphasis added.] |
| [28] Counsel for the intervener contended that, by definition, a person who relies on public interest standing rather than on the infringement of a private right or the infliction of special damage, is not "directly affected", and therefore lacks standing under subsection 18.1(1). He also referred to case law involving the words "directly affected" in other statutes, where they had been interpreted as requiring the applicant to have an interest similar to that required at common law for a person to be eligible for injunctive or declaratory relief on the basis of "private right" standing. |
| [29] In particular, in Canadian Union of Public Employees, Local 30 et al. v. WMI Waste Management of Canada Inc. (1996), 178 A.R. 297 (C.A.) it was held that a union opposing an application for an approval to operate a waste management facility was not "directly affected" by the grant of approval so that it lacked standing to appeal to a tribunal. However, the interpretation of "directly affected" in the context of a statutory right of appeal to a tribunal is not in my view a reliable indication of the meaning to be attributed to the scope of subsection 18.1(1), where the exclusion of public interest litigants would significantly limit the Court"s jurisdiction to review the legality of federal administrative action. |
| [30] Counsel frankly conceded that Sunshine Village Corp. v. Superintendent of Banff National Park (1996), 44 Admin. L.R. (2d) 201 (F.C.A.) was against him. In that case, which also concerned a challenge by a public interest group concerned with environmental protection, Desjardins J.A. said (at pages 222-223): |
| It is evident from the facts that the appellant is not "directly affected by the matter in respect of which relief is sought", namely with regard to the construction agreement of September 17, 1995, and the Charest approval of August 31, 1992. CPAWS does not, therefore, have standing as of right. |
| I agree, however, with Reed J. in Friends of the Island Inc. v. Canada (Minister of Public Works) [[1993] 2 F.C. 229 (T.D.)] that it was not the intention of Parliament, by including the words "directly affected" in subsection 18.1(1) of the Federal Court Act , to restrict the public interest standing to the pre-Thorson, Borowski, Finlay test. She suggested that: |
| . . . the wording in subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted. |
| Thus Reed J. reasoned that if an applicant is able to meet the above criteria and, assuming that there is a justiciable issue and no other effective and practical means of getting the issue before the courts, standing will be granted. |
| [31] Counsel for the intervener also brought to my attention an earlier decision, Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare), [1988] 1 F.C. 422 (T.D.), at page 435, in which Rouleau J. held that the plaintiff did not qualify for public interest standing because it did not demonstrate that: |
| . . . it has a special interest in the legislation and that it will suffer special prejudice as a result of the illegal actions. |
| The decision was affirmed in the Federal Court of Appeal ((1990), 68 D.L.R. (4th) 761), where it was said that the requirement in the former subsection 28(2) of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] that applicants who are directly affected by a decision may seek to have it set aside was similar to the common law rules for standing. However, the Court did not expressly address the issue of public standing. |
| [32] For this reason, and because the test formulated by Rouleau J. seems to me |
| virtually identical to that for standing as of right, I do not regard Glaxo as an authoritative guide to standing for the purpose of the current subsection 18.1(1). In contrast, Sunshine Village, supra, clearly holds that a person who satisfies the requirements for discretionary public interest standing may seek relief under subsection18.1(1), even though not "directly affected". In my opinion, this is the preferable view, even though the language of subsection 18.1(1) suggests that only those who meet the pre-Finlay test may seek judicial review. In the absence of an explicit statutory provision excluding public interest applicants from the Federal Court, it would be so incongruous to subject the Court"s ability to entertain applications for judicial review to a limitation not imposed on other courts, that I am unwilling to adopt the narrower interpretation of subsection 18.1(1) for which the intervener in this case has contended. |
And at page 231:
(ii) Public interest standing at common law
| [35] Whether a public interest applicant should be granted standing is determined by reference to the three well-known factors established by the Supreme Court of Canada in Finlay, supra, and the preceding trilogy of cases dealing with public interest standing and constitutional challenges, namely, Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575 and Nova Scotia Board of Censors v. Attorney General (N.S.), [1978] 2 S.C.R. 662. |
| [36] Thus, a reviewing court must consider whether the litigation raises a serious or justiciable issue; whether the applicant has a genuine interest in the outcome or subject-matter of the litigation; and whether there are persons other than the applicant who are more directly affected and who can reasonably be expected to litigate the issues raised by the applicant. These should be approached not, as a list of items to be checked off mechanically, but in light of the different policy considerations that the standing requirement addresses: Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), 161 D.L.R. (4th) 225 (Ont. C.A.). |
[25] The Court in Sierra Club of Canada, supra, spoke about the existence of a serious
or justiciable issue in the following terms at page 232:
| [38] It seems now to be settled law that the seriousness of the issues raised by a public interest applicant encompasses both the importance of the issues and the likelihood of their being resolved in favour of the applicant. Given the discretionary nature of public interest standing, and its concern to ensure that scarce public resources are not squandered and other litigants are subjected to further delay, it seems appropriate that the merits of the claim should be taken into consideration: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Hy and Zel"s Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675. |
[26] Do the applicants raise a serious or justiciable issue in the application for a
judicial review and in the application for an injunction? It is my opinion that such a serious or justiciable issue is raised. Section 3 of the Plant Protection Regulations, supra, allow the Minister or an inspector, after a Pest Risk Assessment is completed, if the inspector has reasonable grounds, to take any of the actions the inspector is authorized to take under the Act or any Regulations made under the Act.
Statutory Provisions
[27] Section 3 and subsection 27(1) of the Plant Protection Regulations, SOR/95-212
state as follows:
| 3. Where, after a pest risk assessment, the Minister or an inspector believes on reasonable grounds that a thing is a pest, or a thing or place is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest, and the Minister determines that, in the circumstances, it is necessary and cost-justifiable to take pest control measures, an inspector shall, as appropriate in the circumstances for the purpose of eradicating the pest or preventing its spread, take one or more of the actions that the inspector is authorized to take under the Act or any regulation or order made thereunder. |
| 3. Lorsque le ministre ou l'inspecteur, à la suite d'une analyse du risque phytosanitaire, a des motifs raisonnables de croire qu'une chose soit est un parasite, soit est parasitée ou susceptible de l'être, qu'un lieu est infesté ou susceptible de l'être ou que la chose ou le lieu constitue ou peut constituer un obstacle biologique à la lutte antiparasitaire et lorsque le ministre établit que, compte tenu des circonstances, des mesures de la lutte antiparasitaire sont nécessaires et justifiables quant aux coûts, l'inspecteur prend une ou plusieurs des mesures que la Loi ou ses textes d'application l'autorisent à prendre et qui sont indiquées dans les circonstances pour l'élimination des parasites ou pour la prévention de leur propagation. |
| 27. (1) Where the Minister or an inspector believes on reasonable grounds that a thing is a pest, is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest, any inspector may require the owner or person having the possession, care or control of the thing to dispose of it. |
27. (1) Lorsque le ministre ou l'inspecteur a des motifs raisonnables de croire qu'une chose soit est un parasite, soit est parasitée ou susceptible de l'être, soit encore constitue ou peut constituer un obstacle biologique à la lutte antiparasitaire, l'inspecteur peut exiger de son propriétaire ou de la personne qui en a la possession, la responsabilité ou la charge des soins qu'il en dispose, notamment par destruction. |
| [28] One of the actions that the inspector may take is to issue a Notice to Dispose |
pursuant to subsection 27(1) of the Plant Protection Regulations. It is the applicants" position that before the inspector may issue a Notice to Dispose, among other things, a Pest Risk Assessment must be done. In this case, only a draft Pest Risk Assessment (for comment) was in existence on June 14, 2000 when the Notice to Dispose was issued. The final Pest Risk Assessment was not issued until June 26, 2000. It is my opinion that this raises a serious or justiciable issue, as it goes to the very jurisdiction of the inspector to issue the Notice to Dispose.
| [29] The next question that needs to be determined is whether the applicants have a |
genuine interest in the outcome or subject matter of the litigation. I have no doubt that Ms. Robertson has such an interest. She has been intimately involved with the issue of beetles in Point Pleasant Park since 1990. She was heavily involved in the beetle survey that led to the cancellation of the tree cutting in the park in 1990. She published a report on the beetle survey done at that time. In addition, she has been very involved on behalf of citizens and residents in the area of the park in the current plans to cut approximately 10,000 trees in the park. In addition, Ms. Robertson has lived adjacent to and used the park for the past 13 years and the cutting of the trees could effect the value and enjoyment of her property.
| [30] The applicant, Iain Taylor"s property directly adjoins Point Pleasant Park with a |
60 foot frontage on the park. He has lived there since 1996. Mr. Taylor has been actively involved with the concerned citizens group who opposes the cutting of approximately 10,000 trees in Point Pleasant Park. He has been actively gathering information with respect to the decision to order the cutting of the trees. He is the spokesperson for the group that opposes the tree cutting.
| [31] Evans J. in Sierra Club of Canada, supra, stated at pages 236 - 238: |
| [52] I agree that one function performed by the "genuine interest" requirement is to help to ensure that those granted public interest standing have an experience and expertise with respect to the underlying subject-matter of the litigation that will inform their written and oral submissions made in support of the application for judicial review, and will assist the Court to reach an appropriate result. I consider below whether the Sierra Club has a genuine interest in this sense. |
| [53] However, I do not agree that the case law supports, even implicitly, the notion that public interest standing is only ever granted to protect members of vulnerable groups from reasonably apprehended harm. No doubt there will continue to be instances in which standing is granted in such situations: members of vulnerable groups are, after all, often not in a position to defend their interests through litigation, and it is therefore quite appropriate that organizations that have an involvement with the issues should be allowed to litigate on their behalf. |
| [54] But in my view, the intervener"s theory of public interest standing is too narrow because it overlooks the fact that an important reason for the extension of public interest standing beyond the Attorney General has been to protect the constitutional precepts of the rule of law and democratic accountability. If public interest standing were confined in the manner suggested by the intervener, then a wide range of administrative action would potentially be exempted from the restraints of legality, and the need to comply with the duly expressed will of Parliament. However, it may also be said that, since the public interest in the global environment is very fragmented, public interest groups with a relevant track record will often be the only likely litigants willing and able to institute legal proceedings to ensure that statutory duties are discharged by the public officials upon whom they have been imposed. |
| [55] The next aspect of the "genuine interest" element of the public interest standing test is whether the Sierra Club has demonstrated a degree of involvement with the subject-matter of the application for judicial review that is sufficient to make it an appropriate body to institute this proceeding in the public interest. |
And at page 240:
| [63] Let me make three points about this decision. First, with all respect, a requirement of a "direct personal interest" is not now the test required by the common law for public interest standing: "genuine interest" is significantly broader. "Direct personal interest" is much closer to the test used to determine whether a person has standing as of right, on the ground that the person"s legal rights or interests are affected, or that the person has sustained harm that is different from that suffered by other members of the public. |
| [32] Based on the reasoning in the Sierra Club case, I am of the view that both Ms. |
Robertson and Mr. Taylor have met the genuine interest requirement to make the application for judicial review and for the interlocutory injunction. They have experience and expertise with respect to the subject matter of the litigation and both have certainly been heavily involved with the subject matter of the application for judicial review.
| [33] The final question that must be determined is whether there is a more appropriate |
applicant. Evans J. in Sierra Club, supra, at pages 243 - 244 stated:
| [72] In Shiell v. Amok Ltd., supra, it was said that the provincial environmental assessment legislation considered in that case was regulatory in nature, and that therefore Finlay v. Canada (Minister of Finance), supra, which involved declaratory legislation (the Canada Assistance Plan and Manitoba"s social benefits legislation), did not apply. Thus, since environmental assessment legislation typically imposes obligations and liabilities on public authorities and proponents of projects subject to it, it would seem to follow that only they may challenge a failure by government to subject a project to an assessment in contravention of the Act. |
| [73] This surely cannot be right. If it were, it would mean that, for all practical purposes, governmental failure to require an environmental assessment when such an assessment is mandated by the legislation would be immune from judicial review for all intents and purposes. As understood today, the rule of law should be concerned to ensure that the legality of governmental inaction is as subject to challenge in the courts as are allegations of over-reaching by public officials. |
| [74] In my opinion, the distinction between declaratory and regulatory legislation is simply one way of approaching the more fundamental question of whether there is a more appropriate person than the applicant to seek judicial review. This is made clear by one of the trilogy of cases that first permitted public interest standing and established the principles governing the courts" exercise of discretion. In Nova Scotia Board of Censors v. Attorney General (N.S.), supra, the Supreme Court of Canada conferred public interest standing on a journalist to challenge the constitutionality of the provincial film censorship legislation, which was clearly regulatory in nature. The Court held that the "regulatees" whom the legislation made liable for non-compliance, namely, the movie theatre owners, were unlikely, as a matter of fact, to be willing themselves to institute legal proceedings. |
| [34] There appears to be conflicting case authority as to who has the burden of |
establishing that there is not a more appropriate applicant (see Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 at page 252 and Minister of Justice of Canada et al v. Borowski [1981] 2 S.C.R. 575 at page 598). In light of the apparently conflicting case law with respect to this burden, I would place the onus on the applicants to establish on the balance of probabilities, that there is no more appropriate person who will be expected to litigate the issue in dispute. My reasoning for this position is that the applicants commenced the judicial review application and as such, have the burden of proving all aspects of their claim.
| [35] I find that the applicants have satisfied me on the balance of probabilities that |
there is no more appropriate person that is likely to litigate the issue in dispute. According to paragraphs 29 and 30 of the affidavit of Jarvis Mawhinney, sworn to August 3, 2000, all landowners, including the Halifax Regional Municipality to whom Notices of Prohibition of Movement and Notices to Dispose have been issued, are in agreement with and cooperating with CIFA"s course of action. The Halifax Regional Municipality as lessee of the lands for Point Pleasant Park stated their agreement by letter dated July 14, 2000 and as well, it indicated that it would not be participating in the applicants" application. It is obvious that since all who received Notices from the respondent are in agreement with the proposed action (cutting the trees), there is no other more appropriate applicant that is likely to litigate the issue in dispute and I would so hold.
| [36] I would therefore find that the applicants, Stephanie Robertson and Iain Taylor |
have standing to make the application for judicial review in this matter and consequently, the application for an interlocutory injunction.
| [37] With respect to the applicants, Philip Pacey and Friends of Point Pleasant Park, |
there is insufficient evidence in the filed material to allow me to rule that they have standing in this matter.
Issue 3
Should an interlocutory injunction issue?
| [38] This is an application for an interlocutory injunction to restrain the respondent |
from cutting trees in Point Pleasant Park. Before such an injunction can be granted, three tests must be met:
| 1. There must be a serious question to be tried. |
| 2. It must be determined that the applicant will suffer irreparable harm if the application is refused. |
| 3. An assessment must be made to determine which of the parties would suffer greater harm from the granting or refusing of the interlocutory injunction (see Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers Local 832 and Labour Board (Man.) [1987] 1 S.C.R. 110 and RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311). |
| [39] Richard J. (as he then was) in Conseil du Crabe des Neiges Inc. et al v. Canada |
(Minister of Fisheries and Oceans) et al (1996) 116 F.T.R. 8 (F.C.T.D.) discussed the three factors at pages 18 - 20:
1. A Serious Question To Be Tried
| [12] There are no specific requirements that must be met to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. |
| [13] Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. |
| [14] Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. The second arises when the question of constitutionality presents itself as a simple question of law alone. |
2. Irreparable Harm
| [15] The second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm. The harm that might be suffered by the respondent, should the relief sought be granted, has been considered by some courts at this stage. However, this is more appropriately dealt with in the third part of the analysis. Any alleged harm to the public interest should also be considered at that stage. |
| [16] At this stage, the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants" own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. "Irreparable" refers to the nature of the harm suffered rather than its magnitude. |
3. The Balance Of Inconvenience And The Public Interest
| [17] The third test to be applied in any application for interlocutory relief is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. Where the constitutionality of legislation or, as in the case at bar, the authority of a law enforcement agency is in issue, the public interest must be considered in assessing the balance of inconvenience. |
| [18] Interlocutory injunctions involving a challenge to the constitutional validity of legislation or to the authority of a law enforcement agency stand on a different footing than ordinary cases involving claims for such relief as between private litigants. The interests of the public, which the agency is created to protect, must be taken into account and weighed in the balance, along with the interests of the private litigants. |
| [19] In Canada v. Fishing Vessel Owners" Association of B.C., [1985] 1 F.C. 791; 61 N.R. 128 (F.C.A.), at p. 795, the Federal Court of Appeal overturned the trial judge"s issuance of an injunction restraining Fisheries Officers from implementing a fishing plan adopted under the Fisheries Act . One of the reasons given by the court was that when a public authority is prevented from exercising its statutory powers, it can be said that the public interest, of which that authority is the guardian, suffers irreparable harm. |
| [20] Furthermore, in discussing the balance of convenience in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396; [1975] 1 All E.R. 504, at p. 408, Lord Diplock stated that when everything else is equal "it is a counsel of prudence to . . . preserve the status quo". According to the Supreme Court, this approach would seem to be of limited value. |
| [40] Since the interlocutory injunction is an exceptional form of relief, the onus is on |
the applicants to prove that they meet all three tests.
Application of the Tests to the Present Application
1. A Serious Issued to be Tried
| [41] I have already concluded at paragraph 27 of this decision that there is a serious |
issue to be tried. Section 3 of the Plant Protection Regulations (supra), after a Pest Risk Assessment, allows the Minister or inspector if they believe on reasonable grounds that certain things are or could be infested with pests and if the Minister determines that it is necessary and cost justifiable to take pest control measures then the inspector can take one or more of the actions that the inspector is authorized to take under this Act or the Regulations made under the Act. The pest control measures must be for the purpose of eradicating the pest or preventing its spread. As stated, one of the actions the inspector may take is to issue a Notice to Dispose, as he did, pursuant to subsection 27(1) of the Plant Protection Regulations. The applicants maintain that before the inspector can issue a Notice to Dispose, a Pest Risk Assessment must have been done. Only a draft Pest Risk Assessment for comment was in existence when the Notice to Dispose was issued on June 14, 2000. The final Pest Risk Assessment was only issued on June 26, 2000. As I have already stated, this raises a serious issue to be tried as this ground goes to the very jurisdiction to issue the Notice to Dispose. The applicants" position is that the Minister or inspector can only act after the final or actual Pest Risk Assessment is completed and both acted before this occurred.
2. Irreparable Harm
| [42] The second question under this aspect of the test is will the applicants suffer |
irreparable harm if the interlocutory injunction is not granted? The applicants maintain that irreparable harm will be caused because if the interlocutory injunction is not granted and the judicial review application succeeds, then 10,000 trees would have been cut down under an invalid order. These trees could not be replaced in a person"s lifetime, as many are older trees and the harm caused to the applicants" interests could not be repaired. As well, the applicants argued that an award of damages would not replace the trees. The applicants also allege irreparable harm to themselves as individuals and as representing the public interest. Based on the above facts, I find that the applicants will suffer irreparable harm. I use the word "irreparable" to refer to the nature of the harm, not the magnitude. The harm which would result if an injunction is refused in this case could not be quantified in monetary terms.
3. The Balance of Inconvenience and the Public Interest
| [43] In the present case, the applicants representing public interest will be greatly |
inconvenienced if the injunction is not granted and the trees are cut down but the judicial review application is ultimately successful. There would be a finding that the Notice to Dispose was invalid, but the trees would already be gone. On the other hand, the law is clear that where "a public authority is prevented from exercising its statutory powers, it can be said that the public interest, of which that authority is the guardian, suffers irreparable harm". In this case, the Minister and inspector would be prevented from exercising their powers to have the trees disposed of so as to control the pests. It should be pointed out that in this case, the Brown Spruce Long-Horn Beetle was found to be first present in Point Pleasant Park and in the 10 ensuing years, it has only spread 15 kilometers from the park boundaries. It should be noted as well that the beetle is already outside the park boundaries.
| [44] The undertaking, which was given by the applicants and contained in my Order |
can adequately compensate the respondent in the event that any damages are ultimately proven to have been caused by the granting of this injunction.
| [45] Weighing the above factors, I am of the opinion that the balance of convenience |
weighs heavily in favour of the applicants. The public interest factor of the respondent is not so strong that it cannot wait to be implemented until the judicial review application is disposed of by the Court.
| [46] As the applicants have met all of the tests for the issuance of an interlocutory |
injunction, the application is hereby granted according to the terms of my Order dated August 15, 2000.
"John A. O,Keefe"
J.F.C.C.
Halifax, Nova Scotia
August 21, 2000