Forest Ethics Advocacy Association v Canada: Barred from Charter Relief
This comment is the second part of a two-part series analyzing the Federal Court of Appeal (“FCA”) decision in Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics]. As outlined in part one, Forest Ethics is a judicial review of interlocutory decisions related to a proceeding on the approval of the Line 9B and Line 9 Capacity Expansion Project. The basis for the decisions is the rejection of Ms. Sinclair, an environmentalist and resident of North Bay, Ontario, as a participant in the National Energy Board (“NEB”) hearings on the Line 9 project.
Forest Ethics and Ms. Sinclair challenged the interlocutory decisions on two bases: administrative law unreasonableness and the constitutional guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”). Part one (found here) detailed the administrative law elements of the decision. Part two will discuss the FCA’s findings on the applicants’ Charter argument.
Noting that the Charter argument had not been raised before the NEB, Justice Stratas framed the issue in negative terms: “whether the applicants are barred from seeking Charter relief on the application of judicial review…” (para 26). He found that they were. The discussion begins with the court’s rejection of public interest standing for Forest Ethics.
Forest Ethics as a “Classic Busybody”
The FCA found that Forest Ethics fell “well short” of establishing that it satisfied the criteria for public interest standing as laid out in the Supreme Court of Canada (“SCC”) decision Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society,  2 SCR 524. Under these criteria an applicant must show (a) there is a justiciable and serious issue to be tried, (b) it has a genuine interest in the subject matter, and (c) the proposed action is a reasonable and effective means of bringing the matter before the court.
While the FCA recognized a serious issue was being tried, Forest Ethics failed to meet the other two criteria. Note the strong language used by Justice Stratas:
Forest Ethics is a classic “busybody,” as the term is understood in jurisprudence. Forest Ethics asks this Court to review an administrative decision it had nothing to do with… .
If Forest Ethics were allowed to bring an application for judicial review in these circumstances, it and similar organizations would be able to bring an application for judicial review against any sort of decision anywhere at any time, pre-empting those who might later have a direct and vital interest in the matter. That is not the state of our law (paras 33, 36).
In denying Forest Ethics’s standing, the FCA essentially replicated Justice Cory’s classic slippery slope reasoning in Canadian Council of Churches v Canada,  1 SCR 236, which held that courts would be “hopelessly overburdened” by a proliferation of “marginal or redundant suits brought by well-meaning organizations” (para 26).
The Administrative Record
After barring Forest Ethics by way of standing, the FCA rejected Ms. Sinclair’s application for Charter relief because constitutional issues should only be decided on the basis of a “full, rich factual record” (para 44). If section 2(b) had been raised before the NEB, the Board would have had the benefit of submissions and cross-examinations, and would have had the opportunity to question the parties. The resulting information, combined with the NEB’s expert understanding of energy policy, would have provided a valuable administrative record for the FCA to draw upon.
Further, the NEB could not simply correct these deficiencies in the record when the issue was at the FCA:
On a judicial review, administrative decision-makers do not have full participatory rights as parties or interveners. They cannot make submissions to the reviewing court with a view to bolstering or supplementing their reasons. They face real restrictions on the submissions they can make (para 44).
Citing Okwuobi v Lester B. Pearson School Board, Casimir v Quebec (Attorney General), and Zorrilla v Quebec (Attorney General), the FCA found that when an administrative decision-maker has jurisdiction to decide constitutional issues, as in this case, the decision-maker should not be bypassed by raising the issues for the first time on judicial review. The rationale for this position goes to the doctrine of Parliamentary Supremacy. Parliament assigned responsibility for determining the merits of factual and legal issues to the NEB, and this grant of jurisdiction must be respected.
An Update on the Forest Ethics Administrative Law Decisions
As discussed in my previous post, the FCA held that it was reasonable for the NEB to find that the climate change effects associated with the upstream development of Alberta’s oil sands and downstream use of oil transported by the pipeline were irrelevant and would not be considered in the larger proceeding.
On Friday, November 21, Ontario Premier Kathleen Wynne and Quebec Premier Phillip Couillard disagreed with the FCA’s assessment and signed an agreement on joint principles and collaborative work to guide their respective decisions concerning pipeline projects. At a news conference after their meeting, the premiers noted that climate change must be addressed in any plan to carry energy across the country.
Forest Ethics is a forceful decision in favour of increased deference to the NEB. This comes out clearly in Justice Stratas’s decision to reject judicial discretion in favour of administrative expertise when faced with an application for Charter relief.