Eagleridge International Limited Applicant And: Her Majesty the Queen in right of Newfoundland v. Labrador as represented by the minister of environment and conservation, 2018 NLSC 180

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Eagleridge International Limited v. Newfoundland and Labrador (Environment and Conservation) , 2018 NLSC 180 Date : August 30, 2018 Docket : 201601G3678 Between: Eagleridge International Limited Applicant And: Her Majesty the Queen in right of Newfoundland and Labrador as represented by the minister of environment and conservation for the province of newfoundland and labrador Respondent Before: Justice Alphonsus E. Faour Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: January 23, 26, 27, 2017

Summary: The Applicant sought to quash a decision of the Minister to reverse a release of an undertaking under the Environmental Protection Act which was granted by a previous Minister. It argued that the Minister was not entitled to revive an appeal of the previous Minister’s decision, after no decision had been rendered within the time limits imposed by the Act . The Court quashed the decision to reverse the release, but indicated that another mechanism might achieve the same objective. But any such decision would be without prejudice to the Applicant’s entitlement to claim damages under public interest estoppel.

Appearances: Colm St. R.J. Seviour, Q.C. Appearing on behalf of the Applicant Rolf Pritchard, Q.C. & Justin S.C. Mellor Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick, 2008 SCC 9; Oil Sands Hotel

(1975) Ltd. v. Alberta (Gaming & Liquor Commission), 1999 ABQB 218;K.F. Evans Ltd. v. Canada (Minister of Foreign Affairs), (FC), [1997] 1 F.C. 405, 1996 CarswellNat 1750 (T.D.); Alkali Lake Indian Band v. Westcoast Transmission Co. (1984), (BC CA), 8 D.L.R. (4th) 610, 1984 CarswellBC 816(C.A.); Baker v. Burin School Board District No. 7 (1999), (NL SC), 184 Nfld. & P.E.I.R. 145, 1999 CarswellNfld310 (S.C.(T.D.)); Puddister Shipping Ltd. v. Newfoundland (2000), (NL SC), 189 Nfld. & P.E.I.R. 325, 2000CarswellNfld 87 (S.C.(T.D.)); Royal Newfoundland Constabulary Public Complaints Commissioner v.

Oates, 2003 NLCA 40;Conception Bay South (Town) v. Newfoundland (Public Utilities Board) (1991), (NL SC), 95 Nfld. & P.E.I.R. 106, 1991 CarswellNfld 190 (S.C.(T.D.)); St. Anthony Seafoods Ltd. Partnership v. Newfoundland & Labrador (Minister of Fisheries &Aquaculture), 2004 NLCA 59; Mount Sinai Hospital Center v. Quebec (Minister of Health & Social Services), 2001 SCC 41; ImmeublesJacques Robitaille Inc. v. Quebec (City), 2014 SCC 34 STATUTES CONSIDERED: Environmental Protection Act, S.N.L. 2002, c. E-14.2;

Interpretation Act, R.S.N.L. 1990, c. I-19; Environmental AssessmentRegulations, 2003, NL Reg. 54/03; Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D; Judicature Act, R.S.N.L. 1990, c. J-4 TEXTS CONSIDERED: Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford:Oxford University Press, 1986) REASONS FOR JUDGMENT Faour, J.: INTRODUCTION [1] The Applicant, Eagleridge International Limited (“Eagleridge”), seeks to quash a decision of the Minister of Environmentand Conservation to reverse a decision of a previous Minister.

Eagleridge proposed to construct an 11 km gravel road for the purpose ofcarrying out mineral exploration on lands for which it held mining licenses. The previous Minister had granted approval for the projectunder the environmental legislation, and while an appeal was launched, it was never dealt with. After a change in government, the newMinister withdrew approval, and ordered that the project be subject to a full environmental assessment. [2] This matter engages several interesting aspects of the Cabinet decision-making process.

It raises a question of the not-fully-understood relationship of a Minister with the Cabinet and the notion of collective responsibility. It also raises the question of whether adecision of a Minister will fetter future decisions, whether a decision may be reversed, and whether there may be consequences for thegovernment and for those affected. Background [3] Eagleridge, as Applicant, registered the project under the Environmental Protection Act, S.N.L. 2002, c. E-14.2 (the “Act”),on September 16, 2013. Under the Act, the public was entitled to submit comments on the project.

The deadline for such comments wasset at October 23, 2013. [4] The then Minister, the Honourable Joan Shea, required Eagleridge to deliver an Environmental Preview Report (“EPR”)pursuant to

section 51 of the Act. On December 3, 2013 an Environmental Assessment Committee was struck to assess the project and toissue guidelines for the EPR. That committee was made up of officials from the Minister’s department. It issued its guidelines onJanuary 23, 2014, and Eagleridge delivered its EPR on February 21, 2014.

[ 5 ] After some eight months of consideration, a subsequent Minister, the Honourable Dan Crummell, released the project from a more comprehensive environmental assessment on October 10, 2014. The release was subject to several conditions. The release was published online on the department’s website. Under section 54(5) of the Act , the Release signified the Minister’s acceptance of the EPR and the Guidelines. Section 54(5):

(5) Where, in the opinion of the minister, the environmental preview report complies with this Act and the guidelines and requires no further work, he or she shall determine whether (

a) an environmental impact statement is required; or (

b) the undertaking may be released. [ 6 ] That decision was subject to an appeal within 60 days by an interested party in accordance with section 107(2) of the Act , which reads as follows: 107.

(1) A person to whom subsection 108(1) does not apply, who is aggrieved by a decision or an order made under this Act , may appeal that decision or order to the minister by notice in writing, within 60 days of receipt of that decision or order, stating the reasons for the appeal.

(2) The minister shall notify the appellant, in writing, of his or her decision within 30 days of receipt of the notice of appeal. … [ 7 ] Section 108(1) is not relevant to this case. [ 8 ] On January 7, 2015, a notice was delivered to Minister Crummell, appealing the release. The Appellant was a group of interested citizens, and initially filed the appeal with this Court. It was dated November 6, 2014, within the time required by the Act . However, it was eventually realized the appeal was properly within the jurisdiction of the Minister.

The notice filed with the Minister was, on its face, out of time, as the 60 day time for an appeal would have expired on December 9, 2014. Eagleridge was notified by correspondence dated January 27, 2015 of the filing of the appeal. The notification stated that a decision on the appeal was due March 9, 2015. [ 9 ] There are two problems evident at this point. The appeal was filed outside the time set out in the legislation. Even if it was accepted, the Act requires a decision within 30 days.

The notification indicating a date of March 9, 2015, well beyond the 30 days, was contrary to the legislation. [ 10 ] Minister Crummell did not decide the appeal by the date indicated. In fact, he never issued a decision on the appeal. It would seem that any issues raised by the appeal were moot when the Minister, on October 16, 2015, approved fulfillment of the conditions set as a condition of release of the project.

Those conditions included its Environmental Effects and Monitoring Plan, and its Rare Lichen Survey, all of which were conditions of the approval. [ 11 ] Eagleridge submitted that during the period of waiting for approval, it had incurred about $400,000 in expenses, including the cost of meeting the conditions. [ 12 ] A provincial election took place after the approval of the conditions, and on December 14, 2015, a new government took office.

The new Minister was the Honourable Perry Trimper, who wrote to Eagleridge on February 15, 2016, advising that the appeal, which had previously been “placed on hold” at the request of the Appellants, would now be revived. Eagleridge had not been notified about the “hold” on the appeal, and there were no communications from any previous Minister concerning the appeal decision. [ 13 ] Eagleridge wrote the Minister on February 22, 2016 to challenge the legal status of the appeal, but the Minister did not respond.

Eagleridge filed written submissions to the Minister respecting the revived appeal process on March 22, 2016. [ 14 ] A decision was rendered by Minister Trimper on May 20, 2016 overturning the earlier decision of Minister Crummell to release the undertaking. As a result, Eagleridge was required to undertake a full Environmental Impact Statement. The Minister provided rationale in his decision, focusing on the effects of the project on the biophysical and socio-economic environments of the project area, significant public concerns, and the recommendations of the Environmental Assessment Committee.

The decision did not address the objections raised by Eagleridge in its submissions of March 22, 2016. [ 15 ] Eagleridge argues there were four errors in the handling of this matter: 1) The Appeal was filed too late and should have been rejected as being out of time; 2) The decision was rendered after the statutory time limit and should be void for that reason, and for the reason that the failure of Minister Crummell to address the appeal within the time limit prescribed meant that the Minister was functus officio and had exhausted his jurisdiction with respect to the appeal; 3) Minister Trimper failed to deal with Eagleridge’s arguments respecting the time limits and its objection to the legal validity

of the Appeal: 4) The Appeal being “placed on hold” without notice to Eagleridge was without support in the record, and in any event, was a breach of the rules of natural justice and is without statutory authority. [ 16 ] The Government as Respondent raised three arguments: 1) The recommendations of the departmental officials to Minister Crummel were critical of the proposal.

Hence, there were compelling public policy reasons to revisit the decision; 2) The provision in the Act setting a time limit for a decision on the appeal was not mandatory, but permissive; 3) The Act requires the Minister to make the decision, however, it was the Cabinet which directed the Minister to release the project, in direct opposition to the recommendations of the Minister’s officials. [ 17 ] The issues raised by both parties can be categorized into those involving procedural justice, and those raising questions of the merits of the decision.

The procedural issues relate to the filing of the appeal, and the subsequent events which led to the revisiting of the release of the project by Minister Trimper. The merits of the decision raise questions about the role of department officials who advise Ministers, and the interaction between a Minister and the Cabinet of which the Minister is a part.

It also raises the question of whether a decision binds future decision-making, and if not, the possible remedies for those affected by the reversal. [ 18 ] Of course, the first issue in any question of judicial review is the standard of review, which I will deal with first. Then I will address the procedural issues, and subsequently those issues surrounding the merits of the decision, and the decision-making process. At the end, if appropriate, I will discuss the possible remedies available.

Standard of Review [ 19 ] There are four events which have led to this proceeding, and which are questioned by the parties, and which require some analysis to determine the standard of review: The first is the decision of Minister Crummell to release the undertaking following a submission to the Cabinet. That decision involves an examination of the procedures of the Cabinet. The Government has argued that this decision was ultra vires because it was Cabinet which made the decision, not the Minister. The question – was this a decision which could stand under the applicable standard of review?

The second concerns the appeal launched by a group of interested citizens. There are three issues bearing on this Court’s review of the appeal: the first, whether the Minister could accept the appeal beyond the appeal period; the second, whether the Minister in his response could indicate a date for a response which was beyond the period set out in the Act ; and the third, the status of an appeal for which no decision was issued. The third is the decision of Minister Trimper to “revive” the appeal which he said had been put “on hold”.

The fourth is the decision of Minister Trimper to decide the appeal to reverse the release of the undertaking issued by Minister Crummell, and require Eagleridge to undertake a full Environmental Impact Statement. [ 20 ] Each of these decisions requires an analysis set out in Dunsmuir v. New Brunswick , 2008 SCC 9 for the level of deference which should be accorded a decision-maker in these circumstances. The decision set two levels of deference, the more deferential “reasonableness” standard, and the less deferential standard of “correctness”.

In reviewing a decision for which a reasonableness standard applies, a Court should look for rationale and logic in the reasoning of the decision-maker, and whether the result is within the range of possible and acceptable outcomes. A standard of correctness must be maintained in respect of jurisdictional and some other questions of law. ( Dunsmuir : paragraph 50 ). [ 21 ] The Court sets out a framework for analysis which it suggests should be followed in determining the appropriate standard.

It first suggests looking to precedent, because if a standard has already been applied to the decision-maker in question, there is no need to go through the detailed analysis. Both sides agree in this case that there is no precedent for the types of decisions being reviewed. Accordingly, it will be necessary to consider the different decisions in light of the direction of the Court in paragraph 55 of Dunsmuir : 55.

A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied: • A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. • A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). • The nature of the question of law. A question of law that is of "central importance to the legal system ... and outside the ...

specialized area of expertise" of the administrative decision maker will always attract a correctness standard ( Toronto (City) v. C.U.P.E., Local 79 , at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate. 56. If these factors, considered together, point to a standard of reasonableness, the decision maker's decision must be approached with deference in the sense of respect discussed earlier in these reasons.

There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator's decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the factors indicated. [ 22 ] Each of the four decisions attract a variety of elements which will, of necessity, require a hybrid approach to the analysis. For example, the first decision, that of Minister Crummell to release the project, carries with it at least two aspects, requiring different approaches.

The Government has argued that the decision was improperly made by Cabinet. That aspect of the decision will attract the correctness standard, as it engages a question of law or jurisdiction. The decision itself was made under a discretion granted the Minister by the statute. That element will engage the reasonableness standard, as it relates to decision-making requiring a rational approach, the result of which should fall within a range of acceptable outcomes. Each of the decisions will have to be examined in light of this analytical framework for the applicable standard.

The decision of Minister Crummell to release the project [ 23 ] This process was started by a request from Eagleridge for registration of the proposal to construct the road under the Act . That request was contained in a letter dated August 30, 2013. The Department of Environment and Conservation followed normal procedure, and engaged in an inter-departmental and public review of the project. A memo to the Minister dated October 29, 2013 outlined the various responses.

It recommended further information be provided before the project could be released from the full environmental review process set out under the Act . [ 24 ] Minister Joan Shea responded in accordance with the advice received. In a letter dated November 15, 2013 she advised Eagleridge that insufficient information was provided, and an EPR would have to be prepared and submitted providing certain specified information. [ 25 ] Eagleridge and the department went through the process, and on March 28, 2014, the department prepared a

summary of the outcome. It reviewed the comments of various departments and agencies involved in the process. The

summary clearly exposed the differences between Eagleridge and the officials in the department that the project was not sufficiently advanced to justify a road at that time. This, of course, meant that a thorough analysis was completed and demonstrates that before a decision was taken, both the Minister, and the Cabinet, had the benefit of a full description of the pros and cons of the project. However, it was clear that the recommendation of the officials was to reject the proposal at this time. It was recorded in a Memo of Advice to Minister Shea dated April 10, 2014.

This advice triggered a decision to prepare a Cabinet submission for a decision to reject. While the Act authorizes the Minister to release a project from further environmental scrutiny,

section 66 requires approval of the Cabinet (Lieutenant-Governor in Council) in order to reject a proposal. [ 26 ] A Cabinet submission was prepared with recommendations consistent with the memos to Minister Shea. She signed the submission, and it was considered in Cabinet on September 4, 2014. There were several changes in Ministers between the time of signing of the submission and its consideration by Cabinet. Minister Shea was in that office until June 3, 2014, when the Honourable Terry French was appointed. The Honourable Vaughan Granter was appointed on July 17, 2014.

He was the Minister at the time of the relevant meeting of the Cabinet. [ 27 ] Following the meeting, a decision was issued, bearing the number MC 2014-0464. It authorized the Minister to release the proposal from further environmental assessment, subject to conditions. Advice was provided to the Minister by officials in the department by way of memos on September 23, 2014, and further, on October 2, 2014. Between those dates, the Honourable Dan Crummell was appointed Minister, on September 30, 2014.

A letter to Eagleridge advising of release of the project was sent on October 10, 2014, signed by Minister Crummell. The letter also outlined the conditions to be attached to the release of the project from further assessment. [ 28 ] There was some discussion during the hearing about the significance of the various changes in Ministers throughout the relevant period. It may have been a point of interest, but, in my view, not relevant to the issue before the Court. The Cabinet submission was signed and submitted by Minister Shea.

Ministers French and Granter were Ministers during the period of consideration by the various Cabinet committees. Minister Granter was the Minister during the Cabinet meeting of September 4, 2014, which considered the submission and from which the decision was issued. Minister Crummell held the office a few weeks later when the decision to release was communicated to Eagleridge.

All of the individuals were members of Cabinet throughout, and would have had knowledge of, and the ability to have participated in the discussion concerning this matter. [ 29 ] None of this is relevant to the validity of Minister Crummell’s exercise of discretion to release the project.

There is only one Minister, and it is the Office of the Minister that bears the authority under the statute. [ 30 ] As noted above, the statute required that only Cabinet, under the name of the Lieutenant-Governor in Council, could reject a proposal, while the Minister had the authority to release a proposal from further assessment and review. It was clear that from its decision to authorize the Minister to release the project, the Cabinet declined to reject the proposal and order a full environmental review. The decision of Cabinet: ENVC2014-018.

EPC2014-028 The Submission of the Minister of Environment and Conservation respecting Big Triangle Pond Mineral Exploration Access Road was considered.

Approval was given to authorize the Minister of Environment and Conservation to release the proposed undertaking of EagleridgeInternational Ltd., pursuant to paragraph 54(5)(

b) of the Environmental Protection Act, subject to the following conditions … [31] The validity of the decision to release the project has been brought into question by the Government. It says the decision wasinvalidly taken, and therefore the subsequent decision of Minister Trimper to reverse it should stand. I will examine Minister Trimper’sdecision below, however, at this point, the issue of the validity of Minister Crummell’s decision must be determined. [32] The Government argues that, in fact, the decision to release was made by the Cabinet and not by Minister Crummel. It cites OilSands Hotel

(1975) Ltd. v. Alberta (Gaming & Liquor Commission), 1999 ABQB 218, where Justice Sulyma commented on therequirement for specific authority before exercising a discretion, at paragraph 37: 37. I further note a

summary of the general principles governing the exercise of discretionary powers is contained in J.M. Evans,DeSmith's, Judicial Review of Administrative Action (Stevens & Sons Limited, London 4th Ed., 1980) at p. 285: In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself tothe matter before it; it must not act under the dictation of another body or disable itself from exercising a discretion in each individualcase.

In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not beenauthorized to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevantconsiderations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act and (it)must not act arbitrarily or capriciously. [33] And in K.F. Evans Ltd. v.

Canada (Minister of Foreign Affairs), (FC), [1997] 1 F.C. 405, 1996CarswellNat 1750 (T.D.) the Federal Court found that the Minister improperly took direction from a committee, and failed to exercise thestatutory authority independently. See also Alkali Lake Indian Band v. Westcoast Transmission Co. (1984), (BC CA), 8 D.L.R. (4th) 610, 1984 CarswellBC 816 (C.A.). [34] These cases involve authority relationships separate from that of the decision-making process of Cabinet.

They all express thelegal requirements for the exercise of discretion in specific situations, in particular where boards or commissions are cloaked withstatutory authority to exercise a discretion. However, none deal with the relationship of a Minister and the Cabinet of which he or she isa member. It is different because of the constitutional conventions governing Cabinet government. [35] In suggesting that the decision was improperly made, the Government makes two arguments: first, that the statute places theauthority to release a project squarely within the purview of the Minister.

In this case, it is argued, it was the Cabinet, not the Minister,which made the decision; second, that the public interest demands that a full environmental assessment be done because the proposalwould see development in a sensitive area. [36] As for the first, the Government’s submission mis-states the role of Cabinet in this case. The statute gives authority to reject aproposal and to require a full environmental assessment to the Cabinet. That was the recommendation made by the officials in thedepartment.

The Cabinet clearly declined to exercise its authority to reject, and in the absence of rejection, authorized the Minister torelease the project. [37] The argument that the Minister’s decision was somehow invalid because the Cabinet provided authorization and directioncannot be sustained. Cabinet decision-making, as well as Ministerial decision-making, is carried out in accordance with the conventionsof Cabinet government. It involves the concept of collective responsibility of all members of the Cabinet for the actions of one of theirnumber.

The only legal requirements are found in the statutory grant of authority, and the directives in the statute which set out the pre-requisites for rendering a decision. The statute granted to the Cabinet authority to reject the proposal, and that also provides authority todecline to reject. Having declined to reject, it was open to the Cabinet to authorize the Minister to take a course of action. That actionwas reflected in the letter from Minister Crummell to Eagleridge dated October 10, 2014. [38] As for the second, the Government argues that the public interest demands a response from the Court.

However, it defines thepublic interest as consistent with the recommendations of the officials. In paragraph 106 of its brief, the Government states: 106. In the case at bar, the public interest is compelling. There is a possibility that development of a sensitive area will occur withoutthe benefit of a full EIS. It is an area that is close to both a protected wilderness area and a wildlife park. The Project may also havesignificant implications for a nearby salmon river.

The fact that the public interest in the wise management of natural resources (e.g., air,water, forests, endangered wildlife) cannot be monetized does not mean that it does not exist. [39] These words present the same arguments that the departmental officials presented to the Cabinet through Minister Shea, whosigned the submission. It suggests the Court should take the side of the officials rather than that of the deliberation of the Cabinet. [40] It further argues that the Court is empowered to withhold a remedy where circumstances indicate a compelling public interest. In Baker v.

Burin School Board District No. 7 (1999), (NL SC), 184 Nfld. & P.E.I.R. 145, 1999 CarswellNfld 310(S.C.(T.D.)) and Puddister Shipping Ltd. v. Newfoundland (2000), (NL SC), 189 Nfld. & P.E.I.R. 325, 2000CarswellNfld 87 (S.C.(T.D.)) the Court in each case applied a public interest test to decline to award a remedy. The cases cited particularcircumstances wherein there was justification for denying certiorari in the public interest. [41] The cases are distinguishable from the current case. Puddister was an application to quash a decision to award a ferry contractto non-preferred bidder.

At the time of the decision the consequences would be significant in respect of transportation to Labrador. Ontop of that, the grievances of Eagleridge could be addressed by alternate means. In Baker, similarly, the consequences were disruption tothe school year for the school and the students. In both cases, it was the Court which determined the public interest. That is not thesituation in this case. [42] The definition of the adverse consequences has been presented by the views of officials in direct contradiction to the expressedview of the Cabinet. In my view the cases are not comparable.

The difference involves who decides the public interest. Eagleridge

argues that it is Cabinet’s role to consider and decide the public interest, and it did so having the views of the officials before it. I agree. The public interest has many dimensions, and in our system of government it is for the Cabinet to undertake the balancing act. It is not the Court’s role to usurp the decision-making authority of the Cabinet, nor its ability to provide direction on policy matters to Ministers. [ 43 ] Of greater concern in the Government’s submission was the notion that the decision of Cabinet, and later the decision of the Minister, was wrong for reasons of policy.

The argument implied a bias against the decision and was not neutral as between the decision of a government of one political stripe versus another. In my view, the submission of the Government should be absolutely neutral on the policy issues. An excerpt from the brief of counsel illustrates how it deviated from that policy neutrality, at paragraph 42: 42. This case is about a decision maker (Cabinet) making an arbitrary and capricious decision to release the Project from EA rather than have it subjected to additional study.

The Project was so unnecessarily detrimental to the environment that in May 2014 the then Minister of the Environment and Conservation (Joan Shea) took the extraordinary step of seeking Cabinet approval to terminate the EA because the project was not in the “public interest”. On 9 September 2014, Cabinet rejected Minister Shea’s recommendation, released the Project from EA and imposed conditions on it. [ 44 ] There are a number of errors in this brief passage.

First, the use of pejorative comments such as “arbitrary and capricious” and “unnecessarily detrimental to the environment” are strong value statements which diminish the importance of the deliberative process of the Cabinet, and raises the importance of the opinion of non-elected officials over that of elected Ministers. While it is not the role of the Court to assess the merits of the decision, the Cabinet did have opposing views about the development. There were a number of individuals opposed to the project on environmental grounds, including the officials in the department.

There were also individuals who expressed support for the project on economic grounds. It is the role of Cabinet to balance these views and in so doing define the public interest. [ 45 ] Second, the submission of Minister Shea to seek approval to reject the project was not “extraordinary”, but merely in accordance with the legislation.

Her submission to Cabinet reflected the views of the officials, and in order to proceed, the statute required that it go to Cabinet for decision. [ 46 ] Third, the Cabinet did not release the project, but declined to reject it, and authorized the then Minister to release it with conditions. [ 47 ] More importantly, in attempting to impose a status of invalidity on Minister Crummell’s decision, the Government has missed the fundamental principles that animate Cabinet government: see Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability , (Oxford: Oxford University Press, 1986).

One of the essential attributes of Cabinet government is the convention of collective responsibility. The Marshall text articulated three traditional branches of this convention at page 55: There are three traditional branches of the collective responsibility convention: the confidence rule, the unanimity rule, and the confidentiality rule. The first is to do with the conditions on which a government holds office; the others with the way in which its members behave whilst in office. [ 48 ] The unanimity rule and the confidentiality rule are most relevant here.

The advice that is given to Cabinet by a Minister is to be confidential, so as not to inhibit the decision-making process. The decision which flows from that advice, are to be supported by all members of the Cabinet. If even the proposing Minister, or any other Minister, disagrees with the decision after having given the advice, then they have a choice, to live with the decision under the unanimity rule, or to resign from Cabinet. Where a power is given to a Minister by legislation, even when the Minister exercises a power given exclusively to that Minister, all members of Cabinet must agree with it publicly.

That supports Cabinet solidarity. [ 49 ] Accordingly, the submission that there is somehow a divide between the direction of the Cabinet to a Minister and the subsequent decision of the Minister is incorrect. It is the Minister who has the authority, and he must exercise that authority in accordance with the statute. However, the Minister is also bound by the conventions governing Cabinet decision-making.

Should Cabinet colleagues expect a contrary view, the Minister is bound to exercise the statutory discretion accordingly. [ 50 ] As noted above, the Dunsmuir analysis would apply a standard of correctness to the decision-making process, and a standard of reasonableness to the exercise of the Minister’s discretion. On the first, the Government’s submission that the process was flawed because of the involvement of the Cabinet is, itself, in error. The matter came to Cabinet because of the statutory provision that only the Lieutenant-Governor in Council could reject a proposal.

Once Cabinet declined to reject, it was open to authorize the Minister to release the project. That means that the process by which the decision was made satisfied the correctness standard. [ 51 ] On the second, the reasonableness of the Minister’s decision to release, there are at least two considerations. There were arguments pro and con the decision. Both the Cabinet, in declining to reject the proposal, and the Minister in deciding to release it, had to balance the environmental and economic considerations attached to the project.

The decision to release was clearly within the “. . . range of possible, acceptable outcomes which are defensible in respect of the facts and law.” ( Dunsmuir , paragraph 47 ). There were conflicting economic and environmental issues bearing on the decision, and the Minister exercised his discretion following consideration of both sides and discussion in the Cabinet room. [ 52 ] I reject the submission of the Government that the decision to release the project was somehow invalid because of the involvement of the Cabinet. The Minister followed the process set out in the statute.

Cabinet exercised its discretion to disagree with the submission and declined to reject the proposal. We cannot know the nature of the discussion in Cabinet. The outcome would have reflected a discussion of all the considerations, and in pursuance of the unanimity rule, it is a reasonable conclusion that the Minister was persuaded to exercise his discretion in favour of releasing the project.

In any event, it was the Minister who made the decision, not the Cabinet. [ 53 ] Having accepted the validity of the decision-making process leading to the Minister’s decision to release, I now turn to the next question, that of the appeal of the Minister’s decision by several interested citizens.

The Appeal submitted to Minister Crummell [54] There are several issues arising from the submission of an appeal in this case. The first, whether it was acceptable, even thoughit was filed beyond the time set in the statute; second, if it was acceptable, the effect of the failure of Minister Crummell to issue adecision during the time prescribed; and finally, the effect of the Minister’s failure to issue a decision at all. [55] The Act, in

section 107, provides for an appeal to the Minister of any decision, and requires that the appeal be submitted within60 days. The Minister’s decision was dated October 10, 2014, so an appeal was required by December 9, 2014. [56] In fact, an appeal was filed on November 6, 2014, well within time. Unfortunately, it was filed in this Court, rather than withthe Minister, as required by the Act. The Notice of Appeal was launched in the name of Jeff Ivany, who is a cabin owner in the area ofthe proposed undertaking, on behalf of a number of interested citizens.

It named the Minister of Environment and Conservation and theGovernment, and was, in addition, directed to Eagleridge International Limited, the Applicant in this case. [57] Ultimately, on January 7, 2015, an Appeal was delivered to Minister Crummell, appealing the release pursuant to

section 107 ofthe Act. Eagleridge was notified by correspondence dated January 27, 2015 of the filing of the appeal. The letter indicated that adecision on the appeal was due March 9, 2015. These facts were reported on the Department’s website. [58] Minister Crummell did not decide the appeal by March 9, 2015. He never issued a decision on the appeal during the period heremained in office. During this period, Eagleridge claims that it continued to incur expenses, in the order of about $400,000. [59] There are several problems arising from these facts.

First, while the initial appeal to this Court was in time, that is, within the60-day period set out in the Act, this Court was not the appropriate forum. The appeal should have been filed with the Minister. [60] Second, the appeal was delivered to the Minister on January 7, 2015, well after the 60-day deadline. [61] The Minister’s response by letter to Eagleridge did not take place until 20 days had passed from his receipt of the appeal.

Evenassuming the appeal was validly filed with the Minister on January 7, 2015, only 10 days remained for the Minister’s decision from thedate of the response. [62] Finally, the Minister’s letter indicated the appeal would be decided by March 9, 2015. That was also in error, as the decisionshould have been filed by February 6, 2015, based on submission of the appeal to the Minister on January 7, 2015. The time limits areclearly set out in the statute. [63] Eagleridge says that it was advised in a meeting with Minister Crummell in March 2015, that he had rejected the appeal andthat a letter would be forthcoming.

However, no evidence of such a letter was presented to the Court. [64] Eagleridge wrote the Minister on May 21, 2015 seeking the status of the decision on the appeal, and noted it had complied withthe conditions set out in the Environmental Assessment Release.

There was no response to the letter. [65] No decision was ever filed by the Minister. [66] Eagleridge argues that the appeal was statute-barred as it was filed with the Minister well after the time permitted and thereforeshould not have been accepted for consideration. [67] The Government took the view that the original appeal, inappropriately filed in this Court, was nonetheless filed within time onNovember 6, 2014. I am inclined to accept this. All parties were aware of the existence of an appeal within the time limit.

While itshould have been filed with the Minister, the substance of the appeal was known to all parties, and no one was prejudiced by its filing inJanuary versus November. [68] On the next issue, Eagleridge argues a decision was required to be made within 30 days of the Minister’s receipt of the appeal,and none being made within that time, the Minister was functus officio. [69] On this issue, the Government’s argument is more tenuous. It submits that the Court should diminish the difference betweenthe words “may” or “shall” in a statute.

It argues that the use of the word “shall” in section 107(2) is to be considered permissive, notmandatory. [70] Section 11(2) of the

Interpretation Act, R.S.N.L. 1990, c. I-19 must also be considered. It reads: 11.

(2) The word "shall" shall be construed as imperative and the word "may" as permissive and empowering. [71] This provision seems to provide clear direction on interpreting whether this is a mandatory provision. However, theGovernment cites a decision of the Court of Appeal to underscore that the entire scope of the legislation needs to be considered beforedetermining whether the use of the word “shall” indicates a mandatory direction. In Royal Newfoundland Constabulary PublicComplaints Commissioner v. Oates, 2003 NLCA 40, the Court set out three factors at paragraphs 4-7: 4.

In other words, the dictate that "shall" is to be construed as imperative is no more than a prima facie basis for interpreting aparticular statutory provision. I agree with Bowlby J.'s observation in R. v. F. (1985), (ON SC), 20 C.C.C. (3d) 334(Ont. H.C.), that a review of the cases and commentators identifies three major rules which can assist a court in getting beyond that primafacie or presumptive position. 5. The first rule is that as enunciated in Liverpool, namely, it is the duty of courts to try and get at the real intention of the legislatureby carefully considering the whole scope of the statute.

That rule was adopted by the Ontario Court of Appeal in Mayberry v. Sinclair(1914), (ON CA), 20 D.L.R. 752 (Ont. C.A.), and by the Privy Council in Montreal Street Railway v. Normandin(1917), (UK JCPC), 33 D.L.R. 195 (Quebec P.C.), on appeal from the Quebec Court of Review. In Normandin, Sir

Arthur Channell wrote, at p. 198: When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done inneglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with theduty, and at the same time, would not promote the main object of the legislature, it has been the practice to hold such provisions to bedirectory only, the neglect of them, though punishable, not affecting the validity of the acts done. 6. The second rule is that of public duty. Bowlby J. quoted Maxwell on the

Interpretation of Statutes, 10th ed. (1953), at pp. 376-377: A strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and wherethey relate to a privilege or power. Where powers, rights or immunities are granted with a direction that certain regulations, formalities orconditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to theacquisition of the right of authority conferred, and it is therefore probable that such was the intention of the legislature.

But when apublic duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under otherspecified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenienceto others who have no control over those exercising the duty would result if such requirements were essential and imperative. [Emphasisadded.] See also McLachlin J. (as she then was) in Re Narain (1983), (BC SC), 45 B.C.L.R. 191 (B.C. S.C.), at p. 198. 7. The third rule deciphered in R. v.

F. was that of possible prejudice to the parties, and in support thereof Bowlby J. quoted fromReid J. in Carfrae Estates Ltd. v. Stavert (1976), (ON SC), 13 O.R. (2d) 537 (Ont. Div. Ct.), at p. 542: We think that another appropriate criterion is the possibility of prejudice. We do not see any particular prejudice to either party throughfailure by the officer to comply with the 30-day notice requirement. The only prejudice that we see is that there may be a delay. Thatwould be the consequence of reading the

section as directory. We see on the other hand a very real possibility of prejudice, indeed asevere prejudice, if the

section is to be read as mandatory. [72] It is submitted that one must consider the intent of the legislation, the presence of a public duty, and the existence of prejudice. [73] The evidence of Basil Cleary is helpful in this regard. He was a senior official in the department, and provided evidencethrough his affidavit as well as viva voce testimony. On the issue of the importance of timeliness, he said that the time limits in the Actwere an important part of the regulatory regime and attempted to strike a balance between environmental protection, on the one hand,and timely decision-making to facilitate development, on the other. This evidence supports an

interpretation of “shall” that is mandatory. [74] On the issue of public duty, his testimony indicated that this cuts both ways. On the one hand, there is a strong public dutyunder the Act to protect the environment. On the other hand, the time limits are established as a mechanism to establish a duty to respondin a timely manner to each step in the regulatory process. As part of the necessary balancing of interests, it would seem to me that thissupports an

interpretation that is mandatory. [75] Finally, on the issue of prejudice, the Government argues that Eagleridge continued to expend money and resources on theproject, notwithstanding the lack of approval from the relevant municipal authority. As such there was no real prejudice by the failure ofthe Minister to respond to the appeal. [76] On this last issue, two factors are relevant. While Eagleridge was required to obtain municipal as well as Ministerial approval,it would not have made sense to have held one in abeyance pending resolution of the other.

Under the regulations, there was only alimited time to act on the Minister’s approval. In addition, Mr. Cleary said that departmental officials regularly continued to work withapplicants, notwithstanding that some approvals unrelated to governmental approval were still outstanding. The time limits under the Actwere designed to facilitate decision-making on proposals while the broader approval process was still in progress. This would tend tosupport an

interpretation that “shall” is mandatory. [77] For these reasons, I cannot accept the Government’s submission that I should consider the word “shall” in section 107(2) to bepermissive and not mandatory. There was strong evidence that the strict time limits were an important part of the regulatory scheme.

Having received approval for the project from the Minister, and in the absence of any contrary decision on an appeal, Eagleridge wasentitled to continue to expend money on the project, notwithstanding the outstanding approval from municipal authorities. [78] The consequences of failure to observe the time limits for an appeal decision must lead to a lapsing of the appeal. Here theconduct of the Appellant is relevant. The Appellant could have insisted on performance, or sought mandamus in this Court. If so, it mayhave been possible to maintain its right to a decision.

This follows from the important public policy objective of balancing of interestsbetween environmental protection and timely decision-making for applicants. In fact, the Appellant made no efforts to move the processfrom the time the Notice of Appeal was filed during the currency of Minister Crummell’s mandate as Minister.

The failure to even makeinquiries for a substantial period of time following the deadline set out in the Act leads me to the conclusion that the appeal waseffectively abandoned. [79] While the Government asserts that there had been a request for the appeal to be “placed on hold”, the evidence from the recorddoes not disclose such a request. After taking no action or making any inquiry for about 12 months following the filing of the appealwith the Minister, on January 4, 2016, the Appellant wrote the new Minister requesting a decision on the Appeal.

That is not consistentwith an assertion that it was the Appellant which had requested any decision be held in abeyance. It is consistent with the perception thata new government would be more sympathetic. [80] There was reference in the letter to section 107(2) of the Act that a decision be rendered within 30 days of the appeal. Eagleridge says that this is evidence consistent with the view that there was no request by the Appellant for a delay. In any event, thereis no authority provided for placing a hold on the issuance of a decision, contrary to the time limits in the Act.

[ 81 ] In this case, a decision was not merely out of time, but was never issued at all by Minister Crummell. He ought to have issued a decision within the period set out in the Act . Since he did not, could the appeal have remained outstanding indefinitely, to be “revived” by Minister Trimper in the following year? [ 82 ] There are so many errors in the handling of this file by both the Appellant and the Minister that any defect is un-curable. The appeal was first launched in the wrong forum. Then it was filed properly, but after the time set for filing.

Even if I accept that a failure to meet the time for filing was not fatal, then the Minister misinterpreted, or failed to comply with, his obligation under the Act to decide within 30 days, and indicated to Eagleridge that he had some 60 days to decide. Then he never decided. But at the same time, the departmental officials continued to work with Eagleridge in satisfying the conditions in the release decision of October 10, 2014.

In addition, the Appellant did not follow-up with the Minister for over a year, after the government had changed and a new Minister was installed. [ 83 ] As for applying the appropriate standard of review, since this is a time limit issue, and subject to a mandatory directive, in my view “correctness” ought to apply. Therefore, a failure to comply with the timing under the Act is a question of law, not one of the exercise of discretion.

Even if it was a discretionary decision, and thereby subject to the “reasonableness” standard, a decision rendered a short period of time following the deadline may have been considered acceptable, but the failure to render a decision was unreasonable, and cannot stand as the normal exercise of discretion. [ 84 ] I also consider that the Appellant was aware of the time limit for issuing a response to the appeal, and still made no request for a decision within a reasonable time.

There must be some onus on any person entitled to a response to at least make inquiries when none is forthcoming within a reasonable time. Otherwise it must be considered to be abandoned. [ 85 ] Therefore, in my view, the failure of Minister Crummell to issue a decision within the prescribed time period rendered the appeal a nullity. It was not capable of being “revived” at a later date, as there was nothing to be revived.

The Appellant’s failure to make inquiries or seek a decision effectively led to an abandonment of the appeal. [ 86 ] As a consequence, Eagleridge, was entitled to rely on the fact that there had been no adverse decision to the sanctioning of the project. I will address the considerations arising from Minister Trimper’s “revival” below. The decision of Minister Trimper to revive the Appeal [ 87 ] As already noted, a general election intervened, on November 30, 2015. A new Minister, Perry Trimper, was appointed by new government of a different political party on December 14, 2015.

The Appellant wrote the new Minister on January 4, 2016, requesting that the appeal proceed, in light of no decision by the previous Minister Crummell.

Some 15 months after the deadline for filing the appeal, and about 13 months after it was actually filed, the new Minister wrote to Eagleridge on February 15, 2016, advising that the Appeal had previously been “placed on hold” at the request of the Appellants, and would not be revived by him at their request. [ 88 ] The evidence from Eagleridge was that it had never been notified about a hold on the appeal, and no advice had been forthcoming from any Minister about the appeal decision. No notice about the “hold” on the appeal had been published on the departmental web site.

Other than the reference in the Minister’s letter of February 15, 2016, there is nothing in the record between the time of the filing of the appeal and Minister Trimper’s letter in February 2016 to indicate a “hold” had been imposed. In any event, there appears to be no authority in the Act for putting a “hold” on an appeal; the Act is clear that an appeal must be resolved within 30 days. There is nothing in the record to suggest the Appellant requested a hold on the appeal. [ 89 ] Eagleridge wrote the Minister on February 22, 2016, to challenge the legal status of the appeal, but the Minister did not respond.

Written submissions were filed with the Minister respecting the revived appeal process on March 22, 2016. No response was forthcoming. [ 90 ] Eagleridge takes the view that the revival of the appeal is invalid, for at least several reasons: First, it suggests that Minister Trimper exceeded his jurisdiction in purporting to revive, re-publish, re-hear and decide the appeal, contrary to the time limits in the Act , and without specific statutory authority.

Second, it suggests that having failed to decide the appeal within the statutory time limit, Minister Crummell was functus officio and hence Minister Trimper, who held the same office, was in the same position vis a vis this matter. Finally, it argues that the manner in which Minister Trimper proceeded on the appeal violated the rules of natural justice. [ 91 ] The Government made no specific argument on this point, other than to say that the public interest demanded a review of the project. It was clear that the officials in the department disagreed with the release of the project by Minister Crummell.

As discussed above, however, it is the Minister, not the officials, who is authorized by the Act to make the decision. [ 92 ] No authority was provided for the revival of an appeal which had lapsed or had been abandoned. Minister Trimper provided no rationale for a revival. He had to decide that two time limits, the late filing of the appeal and the failure to file a decision within the prescribed time, were not relevant.

He gave no rationale or reasons, even when Eagleridge made submissions on the point. [ 93 ] Eagleridge argued that only Minister Crummell could decide the appeal, under the suggested maxim “who hears must decide”, however, no authority was provided for this proposition. While at the relevant times two Ministers occupied the office, there is, in fact, only one Minister, and it would not have been improper for Minister Trimper to have decided the appeal within the terms set out in the Act .

If Minister Crummell had remained as Minister, he would have had the same lack of authority to decide the appeal more than one year out of time. On the other hand, if Minister Crummell was functus officio , then so was Minister Trimper. [ 94 ] On the issue of the violation of the rules of natural justice, I am inclined to accept Eagleridge’s argument. Minister Trimper failed to give reasons for his revival of the appeal. He failed to respond to the submissions and arguments of Eagleridge concerning the

revival of the appeal. While there was no statutory provision respecting the extent of procedural justice applicable, I was referred toConception Bay South (Town) v. Newfoundland (Public Utilities Board) (1991), (NL SC), 95 Nfld. & P.E.I.R. 106, 1991 CarswellNfld 190 (S.C.(T.D.)), where Justice Cameron opined on this issue at paragraph 18: 18. Where, as in this case, there is no statutory provision specifying the notice to be given the general rule is that it must be sufficientto allow the affected person to know how he or she might be affected and to prepare to make representations.

In Central OntarioCoalition Concerning Hydro Transmission Systems v. Ontario Hydro (1984), (ON SC), 8 Admin. L.R. 81, 46 O.R.(2d) 715, 27 M.P.L.R. 165, 4 O.A.C. 249, 10 D.L.R. (4th) 341, 16 O.M.B.R. 172 (Div. Ct.), at p. 113 [Admin. L.R.], Reid J. states: [I]t is well established that where the form or content of notice is not laid down it must be reasonable in the sense that it conveys the realintentions of the giver and enables the person to whom it is directed to known what he must meet. ... [95] It was reasonable to expect that there would be a response to the submission of Eagleridge respecting the appeal.

Adding to theprocedural and legal difficulties with reviving the appeal, Minister Trimper’s failure to respond appropriately led, in my view, to a breachof natural justice. Eagleridge had no opportunity to state its case, its inquiries and submissions did not elicit a response from theMinister, and the decision to revive the appeal was without reasons or rationale. [96] In addition, Minister Trimper used the appeal as a device to reverse the decision of Minister Crummell.

His letter to Eagleridgedated May 20, 2016 refers to the appeal: Further to my 15 February 2016 correspondence, the appeal process is now complete . . . . I have decided to revise the 10 October 2014release decision and require an Environmental Impact (EIS). [97] Accordingly, Minister Trimper had no authority to revive and decide the appeal. In respect of the appeal, he was functusofficio, as Minister Crummell would have been.

The reconsideration of the appeal as a device to reverse the decision of MinisterCrummell to release the project was without legislative authority and was contrary to the authority contained in the Act. This is not asituation of a legislative gap. The Act was quite specific in setting a time limit for a response. The failure of Minister Crummell to meetthat requirement, coupled with the failure of the Appellant to pursue a remedy in a timely fashion, rendered the appeal a nullity,incapable of being revived. Therefore the decision of Minister Trimper to revive and decide the appeal should be quashed.

The decision of Minister Trimper to reverse the release [98] Interestingly this portion of the matter received the least argument from the parties. It is in my view perhaps the mostimportant, because it engages the authority of a Minister to undo or revise what has been previously decided.

Whether or not the appealcould have been revived by Minister Trimper, did he have the authority, in any event, to reverse the release of the project given byMinister Crummell some 19 months earlier? [99] I have already decided that the revival of the appeal by Minister Trimper was without appropriate statutory or other authority. As a consequence, the reversal of the release of Minister Crummell was invalid and ought to be quashed. That, however, raises twoadditional questions.

First, whether, apart from the appeal process, the release granted by Minister Crummell could have been reversed,and by what mechanism; and second, if reversed, the recourse available to Eagleridge. [100] On the first, I have not been provided with specific authority permitting a Minister or other authority to reverse an entitlementpreviously granted. The Act does contain provisions that permit the Cabinet, or the Lieutenant-Governor in Council, to reject anundertaking. That authority may carry with it the power to reverse a previously authorized release. [101] I examined the

Interpretation Act for a power to reverse the granting of a license or entitlement. There is no specific reference inthat Act, but it does refer to other circumstances which may be analogous. For example: - section 21(1) provides that the power to make an appointment includes the power to remove the appointee; -

section 22(

c) indicates that the power to make a regulation also includes the power to amend or rescind it; [102] While these provisions do not directly address the case before me, it could be argued that the power to release an undertaking isakin to subordinate legislation. The power to issue subordinate legislation is often referred to as the power to make regulations. [103] In addition, the Environmental Protection Act contains provisions that permit the rejection of an undertaking, or the ordering ofan Environmental Impact Statement.

Generally, it is to be done by the Cabinet: see powers granted the Lieutenant Governor in Councilin sections 50(2) and 67. While the issue of power to reverse a release previously granted has not been addressed specifically inargument, it is not necessary for me to decide this issue for the purpose of this matter. Accordingly I make no final finding whether thatpower exists.

There remains the issue of the consequences to a reversal of an approval previously granted. [104] On the second issue raised, whether there is any recourse should the reversal of the Minister stand, or the approval is reversedusing another mechanism, Eagleridge has argued that Minister Crummell’s approval has given rise to a public law estoppel. In St.Anthony Seafoods Ltd. Partnership v. Newfoundland & Labrador (Minister of Fisheries & Aquaculture), 2004 NLCA 59 (Quicklawversion), Justice Mercer, writing for the Court, cited Mount Sinai Hospital Center v.

Quebec (Minister of Health & Social Services),2001 SCC 41, which set out the applicable criteria: 82. Promissory estoppel was argued at length on appeal and, though I concur with the trial judge in his conclusion respecting thesame, a fuller explanation is warranted.

83. The trial judge relied on the analysis of Binnie J. in Mount Sinai, as stated in the following passages: [45] In this case Robert J.A. adopted the private law definition of promissory estoppel provided by Sopinka J. in Maracle v.Travellers Indemnity Co. of Canada, (SCC), [1991] 2 S.C.R. 50, at p. 57: The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, [1] bywords or conduct, made a promise or assurance [2] which was intended to affect their legal relationship and to be acted on.

Furthermore,the representee must establish that, [3] in reliance on the representation, [4] he acted on it or in some way changed his position. . . . [46] If this were a private law case I would agree that the elements of promissory estoppel are present. ... [47] However this is not a private law case. Public law estoppel clearly requires an appreciation of the legislative intent embodied inthe power whose exercise is sought to be estopped. The legislation is paramount. Circumstances that might otherwise create an estoppelmay have to yield to an overriding public interest expressed in the legislative text.

As stated in St. Ann's Island Shooting and FishingClub Ltd. v. The King, (SCC), [1950] S.C.R. 211, per Rand J., at p. 220: "there can be no estoppel in the face of anexpress provision of a statute" (emphasis added). See also The King v.

Dominion of Canada Postage Stamp Vending Co., (SCC), [1930] S.C.R. 500. [48] Here the Minister is mandated in broad terms to act in the public interest, and if the public interest as he defines it is opposed tothe award of the modified permit, then I do not think a court should estop the Minister from doing what he considers to be his duty. ... 84. [76] At issue in Mount Sinai was the denial of a permit by a Minister under a statute which authorized issuance of a permit "ifhe (the Minister) considers that it is in the public interest". [105] The Government responded with its argument based on a later case in the Supreme Court of Canada.

In Immeubles JacquesRobitaille Inc. v. Quebec (City), 2014 SCC 34, Justice Wagner (as he then was) said at paragraphs 19-20: 19. In the public law context, promissory estoppel requires proof of a clear and unambiguous promise made to a citizen by a publicauthority in order to induce the citizen to perform certain acts. In addition, the citizen must have relied on the promise and acted on it bychanging his or her conduct (Centre hospitalier Mont-Sinaï c. Québec (Ministre de la Santé & des Services sociaux), 2001 SCC 41,[2001] 2 S.C.R. 281 (S.C.C.), at paras. 45-46 ("Mount Sinai"), quoting Maracle v.

Travelers Indemnity Co. of Canada, (SCC), [1991] 2 S.C.R. 50 (S.C.C.); J.-P. Villaggi, L'Administration publique québécoise et le processus décisionnel: Des pouvoirs aucontrôle administratif et judiciaire (2005), at p. 329). 20. However, the doctrine of estoppel must yield in the public law context to an overriding public interest and may not be invoked toprevent the application of an express legislative provision (Mount Sinai, at para. 47; St. Ann's Island Shooting & Fishing Club Ltd. v.

R., (SCC), [1950] S.C.R. 211 (S.C.C.), at p. 220). [106] These authorities indicate that to claim relief under the doctrine of public law estoppel Eagleridge must show, first, the elementsof private law estoppel, that is, a clear and unambiguous promise made by an authority, and conduct in reliance on that promise. In thecontext of public law estoppel, the existence of an overriding public interest must be considered as well. [107] In this case Eagleridge argues that all of the elements of public law estoppel are present.

While the Government submits thatMinister Trimper made no promise on which Eagleridge acted to its detriment, it overlooks the clear and unambiguous release of theproject by Minister Crummell. At the point of receipt of the letter of October 10, 2014, it was entitled to act in accordance with therelease granted, and its conditions, under the Act. [108] The filing of the appeal may have served to suspend the operation of the release. Eagleridge says in affidavit evidence that itwas advised by the Minister in a meeting in March of 2015 that the appeal would be rejected. Mr.

Cleary, in his testimony, confirmedthat he was aware of this fact, and says he saw a draft of a letter to that effect. But, he said, he never saw it signed, and it appears no-where in the record. He did say that the draft confirmed that the project was released. [109] Whether I accept evidence of the March, 2015 meeting, the overriding fact of the appeal is that the Minister failed to deal withit. Since no decision was issued within the time set out in the legislation, and in fact, no decision was issued at all, I have already foundthat the appeal was either a nullity or abandoned.

As a consequence, the fact of the appeal should be negated with respect to thesuspension of the release. The government is not able to rely on the non-feasance of its Minister to insulate it from its obligations underthis criterion. Based on this, Eagleridge was entitled to act on the release, which it did. [110] Eagleridge asserts that on the strength of the release by Minister Crummell, it expended substantial resources in addressing the

conditions attached to the release, and generally acting to begin the undertaking in reliance on the release. The government, on the other hand, says that it did not act in reliance on the Minister’s letter, since during the same period it continued to work, notwithstanding that the project had been rejected by the Town of Holyrood, the relevant municipal authority. [ 111 ] In my view, raising the Holyrood situation is a little disingenuous on the part of the government. The process required approvals from various sources.

Eagleridge worked with several departments of the government, including the Departments of Environment, Natural Resources and Works and Transportation, as well as other authorities, such as the municipality. While it needed the approval of all to proceed, because of the time limits in the regulations it felt obliged to work on parts of the processes as approval was received.

Departmental officials clearly recognized this part of the process, as they continued to work with Eagleridge in addressing the environmental conditions under the release, notwithstanding the outstanding Holyrood approval. [ 112 ] The municipal approval process was separate from the environmental assessment process. This latter process has onerous conditions, and Eagleridge was required to satisfy them, even as the municipal process was ongoing. It expended significant funds and resources in pursuance of the release conditions in aid of the provincial process. The municipal process is separate.

In the end, the municipal approval was received, some months before Minister Trimper purported to revive the appeal. But the government cannot claim that its approval in October 2014 was somehow conditional or limited because of the outstanding municipal process, or that Eagleridge was not entitled to act on that approval. [ 113 ] The final element to be satisfied in a claim for public interest estoppel is whether there is an overriding public interest. In its argument, the Government raises the critical importance of the environment, and the impact this undertaking would have. In St.

Anthony Seafoods the Court declined to grant relief under promissory estoppel. The Plaintiff claimed the Minister promised that a license would be forthcoming. However, the Court found that the exercise of discretion in the granting of fish processing licenses supported a strong public policy objective. The Court noted, at paragraph 79: 79. St. Anthony Seafoods' argument on estoppel emphasized the alleged injustice it would suffer if estoppel did not lie against the Minister. However as observed by Binnie J. in Mount Sinai , the legislation is paramount.

Circumstances that would undoubtedly create a private law estoppel will not suffice at public law where the public policy embodied in the applicable legislation would thereby be subverted. [ 114 ] The Government argued that there are overriding public policy issues involving environmental protection which Minister Trimper wished to address. However, this case is fundamentally different from the circumstances of St. Anthony Seafoods .

In that case, no license had been granted, and therefore a promise by the Minister to issue a license could not fetter the future exercise of discretion by a Minister to actually issue the license. In this case, the public interest had already been considered by Cabinet in its decision not to reject the proposal. Minister Crummell acted on Cabinet’s refusal to reject, and issued the release with conditions. [ 115 ] I am mindful that the evidence presented indicates that the legislation is directed at balancing the goal of environmental protection with timely consideration of development proposals.

The public interest, therefore, involves a decision-maker considering all of the factors, pro and con a proposal, and achieving a decision after a balancing exercise. It goes without saying that environmental considerations are important in assessing the public interest. But defining the public interest is the role of elected officials, not the Court. [ 116 ] The Government’s submission appears to interpret the public interest as agreeing with the officials in the department. Once again, that confuses the role of public servants with that of elected decision-makers.

It is the role of the officials to provide advice on all aspects of a proposal. That appears to have been done. It is the role of elected officials to consider the advice and make a decision. That also appears to have been done. It is not appropriate for the Government to argue subsequently that the officials’ advice should supersede the decision of Cabinet and a Minister. [ 117 ] Accordingly, it is my view that Eagleridge has made out the elements of public interest estoppel. It received approval by a lawful decision of Minister Crummell.

It was entitled to act on that approval and did so, expending significant resources. Any contrary decision by a subsequent Minister or government must consider the interests of a party to whom earlier approval had been given. Eagleridge must be permitted to proceed in accordance with the release by Minister Crummell on October 10, 2014. If the government determines by a lawful means that the release should be reversed, or at least altered, then Eagleridge, under the doctrine of public interest estoppel, is entitled to claim its reasonable costs associated with its actions in pursuance of the release.

Other Matters [ 118 ] There are two other matters raised which must be addressed. First, Eagleridge has argued that the action of an official of the Minister’s department, Paul Rideout, has tainted the process, and should be considered in this decision. Second, Eagleridge has raised the issue of delay and the expiration of the effect of a release under the regulations. Paul Rideout [ 119 ] Mr. Rideout was the chair of the Environmental Assessment Committee that set the parameters and guidelines for the EPR prepared and submitted by Eagleridge.

It also provided advice to the Minister in the preparation of the Cabinet submission recommending rejection of the undertaking and requiring a full Environmental Impact Statement. [ 120 ] Following the issuance of the decision of Minister Crummell to release the project, Mr. Rideout communicated with a citizen who was opposed to the project. Eagleridge argued that this showed improper bias against the project, and tainted the decision of Minister Trimper since he incorporated the advice of a biased official. Once the communication was discovered, a discipline process was put in place, and Mr.

Rideout was sanctioned for his conduct. [ 121 ] The Government argued that the impugned conduct should not discredit the process. The conclusion of the Environmental Assessment Committee was a reasonable one, based on the analysis conducted. [ 122 ] In my view, I do not believe this conduct is relevant. While Mr. Rideout may have mis-stepped, his actions arose only after

Minister Crummell’s decision to release was issued. The advice given to Minister Trimper was delivered following normal consideration by the Environmental Assessment Committee of which Mr. Rideout was the chair. The later conduct may have betrayed a bias, but the assessment advice carried with it no evidence of anything but a proper evaluation. Eagleridge has not impugned the advice given, only the post-release conduct. [ 123 ] Based on the record before me, I do not believe that the actions of Mr. Rideout tainted the process. Accordingly it has not been a factor in this decision.

Delay [ 124 ] Minister Crummell issued his decision to release the project on October 10, 2014. Under the Environmental Assessment Regulations, 2003 , NL Reg. 54/03 the release remains in force for only three years (see

section 17 of the Regulations). Eagleridge has expressed concerns that the litigation which has resulted from Minister Trimper’s decision to revisit the release has taken it beyond the limit. It has requested that the Court suspend the passing of time during the currency of the litigation to the time of this decision. Eagleridge applied to this Court, and Justice Orsborn issued an order which, subject to any order I might make in this decision, suspended the counting of time during the period of this litigation. I agree that such an order is appropriate.

Accordingly, I will order that for the purpose of the effectiveness of the decision of Minister Crummell to release the project on October 10, 2014, the period of time from Minister Trimper’s letter of May 20, 2016 which revoked the release, and this decision, shall not be counted. Conclusion [ 125 ] Eagleridge has sought an order in the nature of certiorari quashing the decision of Minister Trimper issued on May 20, 2016 to revoke the release of Minister Crummell issued on October 10, 2014. Considering the submission of both sides, I have made the following determinations: 1.

The release decision issued by Minister Crummell on October 10, 2014 was a decision of the Minister, not of the Cabinet, and therefore was validly made; 2. The failure of Minister Crummell to issue a decision on the appeal of the decision, coupled with the failure of the Appellant to take any action to pursue the appeal, rendered the appeal either out of time or abandoned, with the consequence that the Minister was functus officio ; 3. The decision of Minister Trimper to revive the appeal was without authority, and contrary to the very specific timelines set out in the Act , and therefore ought to be quashed; 4.

The decision of Minister Trimper to reverse the decision of Minister Crummell by issuing a decision on the appeal also ought to be quashed; 5. While the use of the appeal as a device to reverse the decision of Minister Crummell was not appropriate, I have made no decision on whether there might be other authority for the government to revisit such a decision; and, 6. Should the decision be lawfully revisited, it is without prejudice to a claim for damages by Eagleridge under the doctrine of public interest estoppel. [ 126 ] Accordingly the following order shall issue: 1.

The decisions of Minister Trimper dated February 15, 2016 to revive the appeal, and the subsequent decision of May 20, 2016 to reverse the release issued by Minister Crummell on October 10, 2014 are both quashed, and of no effect; 2. Should the decision of Minister Crummell be revisited by lawful means, it is without prejudice to a claim by Eagleridge under the doctrine of public interest estoppel for its reasonable expenses incurred in reliance on the release of the undertaking. To this end, should the decision be revisited, Eagleridge has leave to bring an application for assessment of its damages; 3.

The time from the decision of Minister Trimper dated May 20, 2016 until the date of this decision shall not be counted for the purposes of the time limits set out in

section 17 of the Environmental Assessment Regulations, 2003 . [ 127 ] Eagleridge shall be entitled to its costs on column three of the scale of costs set out in the Appendix to Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D under the Judicature Act , R.S.N.L. 1990, c. J-4.

_____________________________ Alphonsus E. Faour Justice