Ecology Action Centre v. Nova Scotia (Environment), 2022 NSSC 104

SUPREME COURT OF Nova Scotia Citation: Ecology Action Centre v. Nova Scotia (Environment) , 2022 NSSC 104 Date: 20220413 Docket: 507609 Registry: Halifax Between: Ecology Action Centre and New Brunswick Anti-Shale Gas Alliance, Inc. Applicants v. Nova Scotia Department of Environment and the Minister of Environment (also known as the Minister of Environment and Climate Change) Respondents DECISION Judge: The Honourable Justice Darlene A.

Jamieson Heard: March 2, 2022, in Halifax, Nova Scotia Counsel: James Gunvaldsen-Klaassen and Danielle Gallant, for the Applicants Myles Thompson, for the Respondents (Moving Party) By the Court: Background [ 1 ] The Applicants, the Ecology Action Centre (“EAC”) and New Brunswick Anti-Shale Gas Alliance (“NBASGA”), are environmental, not-for-profit, non-governmental organizations (collectively the “Applicants”). [ 2 ] The Applicant, EAC, is one of Nova Scotia’s oldest member-based environmental organizations. It is a registered charity incorporated under the laws of Nova Scotia.

The EAC was established in 1971 and currently has over 4000 members.

[ 3 ] The EAC participated in both the 2014 environmental assessment of the Goldboro LNG Project and the 2021 review of the Highway Realignment Project proposed for Goldboro. [ 4 ] The Applicant, NBASGA, is an umbrella environmental organization incorporated under the laws of New Brunswick, whose core membership consists of Anglophone and Francophone groups across that province, and several more endorsing members.

NBASGA’s mandates are to ensure unconventional fossil fuels are not extracted in New Brunswick and/or exported to Nova Scotia or elsewhere, and to promote the move to a clean energy economy. [ 5 ] NBASGA also participated in the 2021 environmental assessment of the Highway Realignment Project at the Goldboro LNG site, and worked with the Applicant, EAC, and with the Sierra Club Canada Foundation to file a joint submission within that assessment. [ 6 ] The Respondents are the Nova Scotia Department of Environment and the Minister of Environment (also known as the Minister of Environment and Climate Change) (“NSECC” or the “Department”).

The Respondents are the Moving Parties in this preliminary Motion. [ 7 ] On March 21, 2014, Pieridae Energy Canada Ltd. (“Pieridae”) received environmental approval under

Part IV of the Environment Act, 1994-95, c. 1 (the “ Act ”) and the Environmental Assessment Regulations , N.S. Reg 348/2008 (the “Regulations”) for the Goldboro LNG Project, to be located on Nova Scotia’s Eastern Shore near Goldboro, Nova Scotia.

The approved Goldboro LNG Project includes the construction and operation of a natural gas liquefaction plant and marine terminal. [ 8 ] On April 29, 2021, the Minister of Environment and Climate Change (the “Minister”) issued a written decision (the “Decision”) to Pieridae in relation to an environmental assessment for a proposed undertaking for the Realignment of Marine Drive (Highway 316) (the “Highway Realignment Project”).

The Decision approved the Highway Realignment Project following an environmental assessment carried out by the Department of Environment. [ 9 ] The Decision of the Minister was addressed to the proponent Pieridae and was posted on the Department’s website. It states: This is to advise that I have approved the above project in accordance with

Section 40 of the Nova Scotia Environment Act , S.N.S., 1994- 95 and subsection 13(1)(

b) of the Environmental Assessment Regulations, N.S. Reg. 348/2008, made under the Act.

Following a review of the information provided by Pieridae Energy (Canada) Ltd., and the information provided during the government and public consultation of the environmental assessment, I am satisfied that any adverse effects or significant environmental effects of the undertaking can be adequately mitigated through compliance with the attached terms and conditions. [ 10 ] Attached to the Minister’s Decision are the “Terms and conditions for Environmental Assessment Approval”, a twelve-page document that outlines the measures Pieridae must undertake. [ 11 ] On April 30, 2021, on behalf of the Applicants, Mr.

Gurumurthy of the EAC emailed the Minister and Nova Scotia Environment, as follows: To, Keith Irving, Minister of Environment and Climate Change, Nova Scotia; Helen McPhail, Supervisor, Environmental Assessments Branch, Nova Scotia April 29, 2021 Decision of the Minister of Environment and Climate Change Realignment of Marine Drive (Highway 316), Guysborough County, Nova Scotia File number: 10700-40-57504 40100-30-314 Pursuant to subsection 10(4) of the Environment Act , we request that the Minister provide us with a written statement of the Minister’s April 29, 2021 decision in the above-captioned matter, setting out the findings of fact upon which it is based and the reasons for the decision.

Submitted by and on behalf of the Ecology Action Centre, The New Brunswick Anti-Shale Gas Alliance, and Sierra Club Canada Foundation. Sincerely Gurprasad G Gurprasad Gurumurthy E.I.T, E. Pt. Energy Coordinator (Renewables & Electricity) [ 12 ] On May 3, 2021, Mr. Gurumurthy received an email from the Environment Assessment Web Account EA@novascotia.ca (the “May 3, 2021, email”). The email said: Good morning Gurprasad, The Minister’s written statement on the decision can be found on our website at: https://www.novascotia.ca/nse/ea/Realignment-of- Marine-Drive-Project/ Regards,

EA Branch [ 13 ] The referenced link is to the Department’s Environmental Assessment Website (the “EA Website”), where information about the Highway Realignment Project, including the Minister’s Decision, the attached conditions, and other project documents is available to the public. No additional requests for more detailed information were made by Mr. Gurumurthy or the Applicants. [ 14 ] On July 12, 2021, the Applicants filed a Notice for Judicial Review seeking a judicial review of the Minister’s April 29, 2021, Decision and also of the alleged failure to comply with s. 10(4) of the Act .

No issue was raised by the Respondents with regard to timing of the Notice for Judicial Review, given the Covid-related suspension of filing deadlines. [ 15 ] The Applicants grounds for review are stated as follows: (

i) The Minister erred, and acted unreasonably, by unlawfully failing to provide the Applicants with the written statement of the Decision, setting out the findings of fact upon which it is based and the reasons for the Decision, within 30 days of the Applicants’ request, contrary to the requirements of section 10(4) of the Environment Act ; (ii) The Minister erred in law and in fact, and acted unreasonably, in making the Decision as he failed to provide an internally coherent rationale within the context of the legal and factual constraints on the Minister when making his Decision under

section 40 of the Environment Act . (iii) The Minister erred in law and in fact, and acted unreasonably, by failing to properly consider the comments received from the Applicants and other participants during the public consultation process, including the comments received from the Applicants concerning greenhouse gas emissions and the risks of carrying out the project in an area already significantly impacted by historical gold mining activity and contaminated by toxic gold mine tailing deposits; and (iv) Such further and other grounds as may appear prior to the hearing of this matter. [ 16 ] The Notice for Judicial Review indicates the Applicants request the following orders: 1.

An order in the nature of mandamus directing the Minister to provide the Applicants with the written statement of the Decision setting out the findings of fact upon which it is based and the reasons for the Decision; 2. An order in the nature of certiorari quashing the Decision; and 3. Directing that costs be awarded to the Applicants. [ 17 ] On July 21, 2021, the Department filed a Notice of Participation. It states in part: … it was reasonable for the Minister to conclude that the project could proceed without adverse or significant environmental effects.

Furthermore, the Minister maintains that in coming to his Decision, given the information before him, he did not unreasonably err in carrying out any relevant statutory duties under the Environment Act , … or Regulations . The Minister further states that the Decision was not issued to the Applicants. Therefore, the Applicants do not have standing as of right in this matter. To challenge the Decision by way of judicial review, the Applicants must seek public interest standing.

On April 30, 2021, Gurprasad Gurumurthy … wrote an email to multiple recipients including the Minister, ECC’s Environmental Assessment Web Account as well as to Helen MacPhail, Supervisor of ECC’s Environmental Assessment Branch. Relying on subsection 10(4) of the Act , Mr. Gurumurthy requested a written statement of the Decision, the findings of fact upon which the Decision was based, and the reasons for the Decision. On May 3, 2021, an ECC administrator, through the Environmental Assessment Web Account email, responded … The Response directed Mr.

Gurumurthy back to the Environmental Assessment Registry … The Respondents submit that the Response is not a “decision” subject to judicial review, but was merely a courtesy response to an inquiry from a public interest group and therefore, the Response is not a “decision” subject to judicial review. In the alternative, the Respondents submit that if this court finds that the Response is a “decision”, then it is a decision separate from the Decision of the Minister and is a decision of an administrator subject to s. 137 of the Act .

As such, if the Applicants were aggrieved by this “decision” they must appeal to the Minister and exhaust the statutory appeal process set out in s. 137 of the Environment Act . Any such appeal would exceed the 30-day limitation period set out in s. 137 , and therefore, the Applicants are out of time to appeal said “decision”. … [ 18 ] Pieridae was served with the Notice for Judicial Review at the time the within application was commenced, but did not file a Notice of Contest nor participate in this Motion. [ 19 ] On September 2, 2021, a motion for directions was held before Justice Muise.

At that time, the Department raised several preliminary issues. The first issue was standing of the Applicants. The Department also took issue with the attempt to judicially review the response to Mr. Gurumurthy’s request under s. 10(4) of the Act . The Department requested this motion to address these two outstanding issues before the matter proceeds to a hearing on the merits scheduled for June 30, 2022.

Evidence on the Motion [ 20 ] The Department filed the affidavit of Mr. Jeremy Higgins, an Environmental Assessment Officer with the Policy, Planning and Environmental Assessment branch of the Department, sworn on December 16, 2021. [ 21 ] The Applicants filed the affidavit of Mr. James D. Emberger, spokesperson for the Applicant, NBASGA, who resides in New Brunswick. His affidavit was sworn on January 10, 2022, in New Brunswick. The Applicants also filed the affidavit of Mr. Gurprasad Gurumurthy, Energy Coordinator for Renewables and Electricity for the Applicant, EAC, who resides in Ontario.

His affidavit was sworn on January 10, 2022. [ 22 ] Mr. Gurumurthy was cross examined. Issues [ 23 ] There are, in essence, two applications for judicial review contained in the one Notice for Judicial Review, whereby the Applicants seek to: (1) review the Decision of the Minister dated April 29, 2021, and (2) to review the alleged failure under s. 10(4) of the Act , which relates to the April 30, 2021, request of Mr. Gurumurthy and the Environmental Assessment Web Account response of May 3, 2021.

While both are related to the Highway Realignment Project environmental assessment, they took place on different dates, and therefore, have different limitation periods. Each requires its own analysis. [ 24 ] The issues are as follows:

(1) Application for Judicial Review relating to the Minister’s April 29, 2021, Decision to approve the Highway Realignment Project: (

i) Should the judicial review of the Minister’s April 29, 2021, Decision be dismissed or set aside because the Applicants do not have standing to bring the judicial review?

(2) Application for Judicial Review relating to the request by the Applicants pursuant to s. 10(4) of the Act for a written statement of the Minister’s April 29, 2021, Decision setting out the findings of fact upon which it is based and the reasons for the Decision: (

i) Have the Applicants properly brought this challenge by way of a judicial review application? Is NSECC’s Response on May 3, 2021, a “Decision” subject to judicial review? (ii) In the alternative, if the May 3, 2021, response was a decision, is it subject to the statutory appeal provisions in s. 137 ? If yes, given the 30 day limitation period set out in s. 137 , is the appeal out of time? [ 25 ] As this is not a hearing on the merits but a preliminary motion to determine if the applications for judicial review can proceed, I must be careful not to delve into the merits of the matters.

Parties’ Positions The Minister’s April 29, 2021, Decision approving the Highway Realignment Project The Department [ 26 ] The Applicants acknowledge they do not have private interest standing to seek judicial review of the April 29, 2021, Decision. The Respondents say neither do they meet the test for public interest standing. [ 27 ] In relation to the test for public interest standing, the Department acknowledges that, given the Applicants’ respective mandates and their membership, it is likely that they have a genuine interest in decisions affecting the environment.

The Department submits that while the issue of whether the Minister’s Decision was reasonable is justiciable, in that it is capable of being adjudicated, the Applicants do not raise a “serious” justiciable issue in relation to this matter. [ 28 ] The Department says the Minister’s Decision was a discretionary one, made within the terms of his own statute following an expert review of the submissions from the Project proponents, Federal and Provincial government reviewers, aboriginal groups, and the public at large.

They say a challenge to the Minister’s Decision would address whether it was made within a range of reasonable acceptable outcomes, and the Minister would be granted deference. The Department further says there are no substantial constitutional issues at stake in this matter, as this was merely the approval of a highway realignment project. Activities of this nature proceed in this province on a frequent basis without the need for judicial scrutiny. [ 29 ] The Department says the Applicants focus is on the environmental impact of the overall LNG Project.

However, the approval of the LNG Project in 2014 is not the decision being challenged in this matter. The environmental assessment process for the LNG Project was initiated in February 2013 and the Applicants did not seek judicial review of the Ministers approval.

The Department says the approval of the Highway Realignment Project does not raise the kind of serious issue required for public interest standing. [ 30 ] The Department says that as of July 2, 2021, Pieridae announced that the proposed LNG Project would not be moving forward as planned, thus potentially rendering the Applicants’ greater concerns regarding the environmental impacts of the proposed LNG Project moot.

EAC / NSASGA [ 31 ] The Applicants submit that they meet the criteria for public interest standing to bring this judicial review of the Minister’s Decision to approve the Highway Realignment Project. [ 32 ] The Applicants say they meet all the criteria for public interest standing: there is a serious justiciable issue raised; the

Applicants have a real stake or genuine interest in it; and, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts. [ 33 ] The Applicants submit that the issues involved in this judicial review are justiciable, as they involve legal questions that can be decided by a court, including (1) whether the Minister’s Decision to approve the Highway Realignment Project is reasonable and justified in light of the absence or insufficiency of reasons provided and (2) whether the Applicants’ comments were considered in making the Decision. [ 34 ] The Applicants further say the issues raised are clearly far from frivolous, nor are the results a foregone conclusion.

They say a preliminary assessment of the merits shows that it is at the very least arguable that the Minister’s Decision statement provides inadequate reasons – if not a total absence of reasons – and there is no indication that the Applicants’ comments were considered in making the Decision. [ 35 ] The Applicants submit that the issues raised by the application are serious and of public importance. They submit that the Supreme Court of Canada has held that public interest standing is not limited to constitutional issues.

They say the ground of review alleging the Minister acted unreasonably in failing to provide an internally coherent rationale or reasons for the Decision relates to the absence or insufficiency of reasons for the Minister’s Decision.

The Applicants note that the Supreme Court of Canada has recently confirmed that reasons are central to administrative decision-making, and that “ reasoned decision-making is the lynchpin of institutional legitimacy.” [ 36 ] They also say their allegation that the Minister unreasonably failed to consider and respond to their submission and concerns prior to making the Decision raises a serious issue.

They say their submissions during the environmental assessment raised serious issues of public importance which would affect the citizens of the province and beyond, including the impacts of the Highway Realignment Project on climate change and greenhouse gas emissions reduction goals during a climate emergency, as well as the adverse and serious impacts on the environment and water quality from toxic contamination and other hazards associated with abandoned gold mines on the project site.

They say that one serious issue is generally sufficient to meet this part of the public interest standing test and their judicial review application amply satisfies the “serious issue” criterion. [ 37 ] The Applicants say this application is a reasonable and effective way to bring the issues before the courts. They say they have sufficient resources and capacity to undertake this judicial review, as demonstrated through their involvement in other litigation, and they are represented by counsel with experience in environmental law.

The case is of public interest because the issues involved, including those relating to climate change and environmental contamination, transcend the interest of those more directly affected . There are no realistic alternatives to the Applicants bringing the case via judicial review, as acknowledged by the Department, and they bring a useful perspective to the resolution of the issues which is distinct from those more directly affected .

They say it is arguable that the Applicants’ perspective in this case could only be brought forward by public interest litigants. [ 38 ] The Applicants say that when the factors are weighed and assessed cumulatively, and applied in a purposive and flexible manner, keeping in mind the Act ’s purposes, including protecting the environment, providing access to information and facilitating public participation in environmental decision-making, they favour granting public interest standing to the Applicants to bring the issues set out in their judicial review application before the court.

The Section 10(4) issue: Is NSECC’s response to Mr. Gurumurthy of May 3, 2021, subject to judicial review?

The Department [ 39 ] The Department does not challenge the Applicants’ private interest standing as it relates to their request under s.10(4), but says it is not a decision subject to judicial review or, alternatively, that it is a decision of an administrator subject to the statutory appeal process under s. 137 of the Act . [ 40 ] The Department says the response of May 3, 2021, was not a discretionary decision, but was a purely administrative requirement under s. 10(4) of the Act that is not a reviewable decision under Civil Procedure Rule 7 – Judicial Review.

The Department says the use of the imperative “shall” in s. 10(4) means NSECC has a legal obligation to provide the requesting person with a copy of the written decision which sets out the findings of fact upon which the decision is based and the reasons for the decision. They say there is no discretion on the part of NSECC to exercise. [ 41 ] The Department says Rule 7 has been interpreted to only apply to decisions which necessarily involve an exercise of discretion.

Since s. 10(4) gives no discretion to NSECC, there is no “decision” to judicially review. [ 42 ] The Department says, in the alternative, that if there was a decision made, and the Applicants were aggrieved by the adequacy of the response, then it was a “decision” made by an administrator under the Act , and not the Minister. As such, the Applicants must exhaust the statutory appeal process set out in the Act . They say the Applicants failed to file an appeal within 30 days, and are therefore out of time.

EAC / NSASGA [ 43 ] The Applicants agree with the Department’s assertion that the email from “EA Branch” of May 3, 2021, was not a discretionary decision, and therefore, is not amendable to substantive judicial review. Instead, they say, the email, which did not provide the reasons and factual findings underlying the Decision of April 29, 2021, is evidence of a failure on the Minister’s part to take an action required under legislation, which falls within the definition of “decision” under Rule 7.

They say if the Court permits this application to be heard on the merits, it will be argued that the email of May 3, 2021, in no way discharged the Minister’s obligation under s. 10(4) to provide his reasons and factual findings underlying his Decision of April 29, 2021. The Applicants say they must be able to bring a judicial review proceeding seeking an order of mandamus to compel the Minister to fulfill his non-discretionary statutory obligation. [ 44 ] The Applicants say that Rule 7.01 is clear that an application for judicial review filed in this Court may encompass both an

action and/or a failure to act. They point to the definition of “decision” and say their application is in respect of the Minister’s “omissionto take action required by legislation”, as contemplated by Rule 7.01(ii). [45] With regard to the Department’s alternative argument based on s. 137 of the Act, the Applicants say it cannot succeed. They says. 137 establishes a right of appeal to the Minister in respect of a “decision” or “order” taken by an administrator or delegate under theEnvironment Act.

They say no such “decision” or “order” was made with respect to the Applicants’ s. 10(4) request, nor does the sectiongrant the power to make decisions or orders. They say that, consequently, there has never been a s. 137 appeal route available to theApplicants.

They say their application regarding s. 10(4) focuses on the Minister’s failure to act and s. 137 does not contemplate relief inrelation to a failure to act. [46] The Applicants say in the alternative, should this Court determine that an appeal under s. 137 was available to the Applicants,the s. 137 appeal mechanism is not an adequate alternative remedy in the circumstances of this case. They say that appeals of decisionsof the Minister him/herself do not proceed via s. 137, as that

section is limited to delegated decisions/orders issued by administrators ordelegates. [47] The Applicants say that in the circumstances of this case, there is nothing to appeal to the Minister, as an administrator has nopower to order the Minister to provide the reasons and factual findings for the Minister’s Decision.

They say that, on a s. 137 appeal, theMinister’s remedial powers are limited to making the decision the administrator could have made and, therefore, it would be contrary tothe statutory scheme to imply a power under the Act for the Minister to order an administrator to rectify the Minister’s own failure. Law and Analysis [48] This application for judicial review challenges both a discretionary decision of the Minister to approve the HighwayRealignment Project and also what the Applicants say is a failure to act under s. 10(4) of the Act.

As they represent different timeframesand separate potential routes to judicial review, I will address each separately. [49] First, the Minister’s Decision was released on April 29, 2021, and is the subject of a judicial review application seekingcertiorari quashing the Decision. The Applicants seek public interest standing to bring this judicial review application. Second, theApplicants also seek judicial review in relation to their s. 10(4) request for “a written statement of the decision, setting out the findings offact upon which it is based and reasons for the Decision” which was made on April 30, 2021.

The Applicants say that despite the May 3response email, there was a failure to act, and they seek an order of mandamus. [50] I will first address the question of whether the Applicants should be granted public interest standing to bring the application forjudicial review of the Minister’s April 29, 2021, Decision.

(1) The Minister’s Decision of April 29, 2021 Public Interest Standing [51] The Applicants acknowledge they do not have private interest standing regarding their grounds of review (2 and 3) relating tothe Minister’s Decision of April 29, 2021, and, therefore, seek public interest standing. The Applicants bear the burden of establishingthey should be granted public interest standing. See Canada (Attorney General) v.

Downtown Eastside Sex Workers United AgainstViolence Society, 2012 SCC 45. [52] The Supreme Court of Canada in Downtown Eastside, supra, set out three factors for the court to consider in determiningwhether to grant public interest standing: [37] In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a seriousjusticiable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, theproposed suit is a reasonable and effective way to bring the issue before the courts: Borowski, at p. 598; Finlay, at p. 626; CanadianCouncil of Churches, at p. 253; Hy and Zel’s, at p. 690; Chaoulli, at paras. 35 and 188.

The plaintiff seeking public interest standingmust persuade the court that these factors, applied purposively and flexibly, favour granting standing.

All of the other relevantconsiderations being equal, a plaintiff with standing as of right will generally be preferred. [53] In considering whether to exercise my discretion to grant public interest standing, I must consider: 1. whether there is a serious, justiciable issue raised; 2. whether the plaintiff has a real stake or genuine interest in the matter; and 3. whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts. [54] The Supreme Court also stated that the factors must be weighed cumulatively rather than individually, be considered in apurposive and flexible manner, and that the discretion to grant or refuse of discretionary standing must be exercised liberally andgenerously.

Downtown Eastside, supra, states: [2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of theparticular circumstances. The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action hasa real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable andeffective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236, at p. 253.

The courts exercise this discretion to grant or refuse standing in a "liberal andgenerous manner" (p. 253). …

[36] It follows from this that the three factors should not be viewed as items on a checklist or as technical requirements. Instead, thefactors should be seen as interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes. … [53] I return to the circumstances of this case in light of the three factors which must be considered: whether the case raises a seriousjusticiable issue, whether the respondents have a real stake or a genuine interest in the issue(

s) and the suit is a reasonable and effectivemeans of bringing the issues before the courts in all of the circumstances. Although there is little dispute that the first two factors favourgranting standing, I will review all three as in my view they must be weighed cumulatively rather than individually. I conclude that whenall three factors are considered in a purposive, flexible and generous manner, the Court of Appeal was right to grant public intereststanding to the Society and Ms. Kiselbach.

Serious, Justiciable Issue [55] Justice Cromwell in Downtown Eastside, supra, discussed the considerations underlying this factor: [39] This factor relates to two of the concerns underlying the traditional restrictions on standing.

In Finlay, Le Dain J. linked thejusticiability of an issue to the “concern about the proper role of the courts and their constitutional relationship to the other branches ofgovernment” and the seriousness of the issue to the concern about allocation of scarce judicial resources (p. 631); see also L’Heureux-Dubé J., in dissent, in Hy and Zel’s, at pp. 702-3. [40] By insisting on the existence of a justiciable issue, courts ensure that their exercise of discretion with respect to standing isconsistent with the court staying within the bounds of its proper constitutional role (Finlay, at p. 632).

Le Dain J. in Finlay referredto Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441, and wrote that “where there is an issue which isappropriate for judicial determination the courts should not decline to determine it on the ground that because of its policy context orimplications it is better left for review and determination by the legislative or executive branches of government”… … [42] To constitute a “serious issue”, the question raised must be a “substantial constitutional issue” (McNeil, at p. 268) or an “importantone” (Borowski, at p. 589).

The claim must be “far from frivolous” (Finlay, at p. 633), although courts should not examine the merits ofthe case in other than a preliminary manner. … Once it becomes clear that the statement of claim reveals at least one serious issue, it willusually not be necessary to minutely examine every pleaded claim for the purpose of the standing question. [56] The Department concedes that the issue of whether the Minister’s Decision was reasonable is capable of being adjudicated andis, therefore, justiciable.

The issues involved in the application for judicial review of the April 29, 2021, Decision are justiciable as theyinvolve legal questions that can be decided by a court, including, for example, whether the Minister’s Decision to approve the HighwayRealignment Project is reasonable and justified in light of the alleged absence or insufficiency of reasons provided. Clearly, there is ajusticiable issue; the question is whether it is also serious. I, therefore, turn to the “serious issue” considerations. [57] As was noted by Brothers J. in Bancroft v.

Nova Scotia (Lands and Forestry), 2021 NSSC 234, at para. 125, this serious issueconcept has two aspects to it: (1) the judicial review application must have some prospect of succeeding on the merits, a requirement thatis typically readily met, and it must not be premature; and (2) the issue must also be "serious" in the sense that it is of some publicimportance.

As noted above, Justice Cromwell in Downtown Eastside, supra, cautioned that courts should not examine the merits of thecase in other than a preliminary manner, and, once it becomes clear that the statement of claim reveals at least one serious issue, it willusually not be necessary to minutely examine every pleaded claim. [58] While the grounds of review raised by the Applicants in relation to the Decision of April 29, 2021, are not frivolous, I haveconsiderable reservations as to whether they constitute a serious issue.

First of all, the application before the court relates to a decision toallow a highway realignment and not a decision to approve the overall LNG Project. There are no significant constitutional or Charterissues at stake in this matter. The validity of the legislation under which the Decision was made is not challenged. This is a challenge to adiscretionary decision, alleging: failure to provide internally coherent rationale within the context of the legal and factual constraints on the Minister when making hisDecision under

section 40 and failing to properly consider the comments received from the Applicants and other participants during the public consultation process,including the comments received from the Applicants concerning greenhouse gas emissions and the risks of carrying out the project in anarea already significantly impacted by historical gold-mining activity and contaminated by toxic gold mine tailing deposits. [59] As the Department points out, the Minister’s Decision was a discretionary one, made within the terms of his own statute,following an expert review of the submissions from the Project proponents, Federal and Provincial government reviewers, aboriginalgroups, and the public at large.

While cases involving discretionary decisions of a Minister, reviewable on a reasonableness standard,have been found to raise important issues grounding the granting of public interest standing, this is not such a case. The reasonableness ofthe Minister’s Decision in the context of this matter is not an issue of sufficient importance. Nor are there any broad or significantimpacts to the challenged decision. (see, for example, Miner v.

Kings (County), 2017 NSCA 5, at para. 39). [60] The Applicants point to the impacts of: … the Highway Project on climate change and on GHG emissions reduction goals within a climate emergency, which the SCC hasrecognized as posing a grave threat to humanity’s future, due to the emissions that would be enabled by the Project, as well as theadverse and serious impacts on the environment and water quality from toxic contamination and other hazards associated with

abandoned gold mines on the project site. [ 61 ] They say their: April 9, 2021 submission sets out how the Highway Realignment Project and the Goldboro LNG Project are inextricably linked since the Highway Project is essential to enable the broader Project.

The Applicants also asserted that the adverse effects of the broader project should be considered in the context of the Highway Project environmental assessment since Pieridae touted the Project’s alleged benefits in the same context. [ 62 ] I am of the view, based on the record before me, that the Applicants’ actual primary concern is with the greenhouse gases that will be emitted by the LNG Project. The environmental impacts associated with the road realignment itself are of secondary concern.

While, as pointed out by the Applicants, the road realignment is necessary to enable the LNG Project to go forward, it must not be forgotten that the decision to approve the LNG Project, notwithstanding the associated greenhouse gas emissions, was made in March 2014. At that time, the Department of Transportation and Infrastructure Renewal planned to undertake the necessary road realignment (Higgins affidavit, para. 10). Although the EAC participated in the environmental assessment process, it did not seek judicial review of the Minister’s 2014 decision to approve the LNG Project.

Attempting to attack that 2014 decision now, seven years later, via judicial review of the Highway Realignment Project approval, does not assist these Applicants with the serious issue question. [ 63 ] When asked why, given their concern over the LNG Projects greenhouse gas emissions, there was no judicial review brought of the 2014 decision, the Applicants said there are many reasons that not for profits do not bring such applications, including a lack of funds, and that it is an access to justice issue.

While I do not dispute that not for profit organizations can be resource challenged and that this can dictate their involvement in matters, the court has no evidence that the Applicants failed to seek judicial review of the 2014 approval of the LNG Project for financial or other reasons. [ 64 ] The Department says that on July 2, 2021, Pieridae announced that the proposed LNG Project will not be moving forward as planned, thus potentially rendering the Applicants’ greater concerns regarding the environmental impacts of the proposed LNG Project moot.

The Applicants say these statements are extremely vague and do not commit the proponent to do anything; that neither the Goldboro LNG Project nor the Highway Realignment Project has been cancelled; and that their registrations and approvals under

Part IV of the Act continue to stand. [ 65 ] The July 2, 2021, press release, attached as an exhibit to the affidavit of Jeremy Higgins, Environmental Assessment Officer with the Policy, Planning and Environmental Assessment Branch of the NSECC, states as follows: PIERIDAE EVALUATING GOLDBORO LNG STRATEGIC ALTERNATIVES LNG Project Fundamentals Remain Strong CALGARY, ALBERTA – July 2, 2021 - Pieridae Energy Limited (“Pieridae” or the “Company”) (PEA.TO) today released the following statement from Chief Executive Officer Alfred Sorensen with respect to a future path for the Company’s Goldboro LNG Project: ‘While Pieridae has made tremendous progress in advancing the Goldboro LNG Project, as of June 30, 2021, we have not been able to meet all of the key conditions necessary to make a final investment decision.

Following consultation with our Board, we have made the decision to move Goldboro LNG in a new direction . The Project’s fundamentals remain strong: robust LNG demand from Europe and high global LNG prices, Indigenous participation, a net-zero emissions pathway forward, and support from jurisdictions across Canada. This speaks to our ongoing efforts to find a partner to take advantage of these opportunities. That said, it became apparent that cost pressures and time constraints due to COVID-19 have made building the current version of the LNG Project impractical.

We will now assess options and analyze strategic alternatives that could make an LNG Project more compatible with the current environment. In addition, the Company will continue its work to further optimize the operation and development of our extensive Foothills resources and midstream assets, including our carbon capture and sequestration and blue power development.

Pieridae continues looking for innovative ways of supplying the world with the clean natural gas it requires as a reliable bridge fuel, and providing the energy to fuel people’s lives while supporting the environment and the transition to a lower-carbon economy.’ Alfred Sorensen, Chief Executive Officer, Pieridae Energy. [Emphasis added] [ 66 ] The Record before the court also includes the following: • … Construction of the proposed realignment was scheduled to commence in the fall of 2021 and is expected to be constructed by the end of 2022 (Higgins affidavit, para. 8); and, • In accordance with the Terms and Conditions attached to the approval of the Project, Pieridae has two years to commence the Project and it must provide the Department with 30-days written notice prior to the commencement of the Project.

To date, no such notice has been provided to the Department (Higgins affidavit, para. 14). (“project” here refers to the road realignment) [ 67 ] I am unable to conclude definitively, based on the Record before the court, that the proposed LNG Project will not be moving forward as originally envisioned. However, the evidence before me is sufficient to raise a question, and, while certainly not

determinative of the serious issue analysis, it is none the less a consideration, along with the other items I have listed above. [ 68 ] In conclusion, in assessing all of the above considerations together, I am not satisfied that the Applicants have raised a serious issue. Despite my conclusion on this factor, it is necessary to go on to review the other two factors and then weigh all of them cumulatively.

The Nature of the Plaintiff’s Interest ( real stake or genuine interest) [ 69 ] With reference to this consideration Justice Cromwell in Downtown Eastside , supra , said: [43] In Finlay , the Court wrote that this factor reflects the concern for conserving scarce judicial resources and the need to screen out the mere busybody (p. 633). In my view, this factor is concerned with whether the plaintiff has a real stake in the proceedings or is engaged with the issues they raise. The Court’s case law illustrates this point.

In Finlay , for example, although the plaintiff did not in the Court’s view have standing as of right, he nonetheless had a direct, personal interest in the issues he sought to raise. In Borowski , the Court found that the plaintiff had a genuine interest in challenging the exculpatory provisions regarding abortion. He was a concerned citizen and taxpayer and he had sought unsuccessfully to have the issue determined by other means (p. 597). The Court thus assessed Mr. Borowski’s engagement with the issue in assessing whether he had a genuine interest in the issue he advanced.

Further, in Canadian Council of Churches , the Court held it was clear that the applicant had a “genuine interest”, as it enjoyed “the highest possible reputation and has demonstrated a real and continuing interest in the problems of the refugees and immigrants” (p. 254). In examining the plaintiff’s reputation, continuing interest, and link with the claim, the Court thus assessed its “engagement”, so as to ensure an economical use of scarce judicial resources (see K.

Roach, Constitutional Remedies in Canada (loose-leaf), at para5.120). [Emphasis added] [ 70 ] Applying the purposive approach, I have no doubt that this factor favours granting public interest standing. The Applicants have a genuine interest in the environmental approval of the Highway Realignment Project.

They participated in the 2021 environmental assessment, and, as longstanding environmental organizations, they are fully engaged with the issues they seek to raise. [ 71 ] The affidavit evidence illustrates that EAC has been involved in oil and gas issues for over 20 years and has participated in environmental assessment processes for multiple projects or issues in Nova Scotia and Atlantic Canada. During these and other processes, EAC focused on the impacts of the projects on communities, the environment, and climate change. [ 72 ] NBASGA is an alliance which has operated cooperatively since 2011.

For ten years NBASGA has been involved in unconventional oil and gas issues, including through public advocacy and litigation relating to environmental assessment and climate change. [ 73 ] The Department acknowledges that the Applicants, given their respective mandates to their membership, are likely to have a genuine interest in decisions affecting the environment.

The Department acknowledges that EAC And NBASGA are public interest groups who are dedicated to providing environmental information, promoting research solutions, and acting as a watch-dog for the environment, and ensuring that unconventional fossil fuels are not extracted in New Brunswick and/or exported to Nova Scotia or elsewhere, and promoting the move to a clean energy economy in light of the climate emergency, respectively. [ 74 ] These Applicants are certainly not mere busy bodies. This genuine interest factor weighs in favour of granting public interest standing.

Reasonable and Effective Means of Bringing the Issue Before the Court [ 75 ] With reference to this factor Justice Cromwell in Downtown Eastside , supra , said: [44] This factor has often been expressed as a strict requirement. For example, in Borowski , the majority of the Court stated that the person seeking discretionary standing has “to show . . . that there is no other reasonable and effective manner in which the issue may be brought before the Court”: p. 598 (emphasis added); see also Finlay , at p. 626; Hy and Zel’s , at p. 690.

However, this consideration has not always been expressed and rarely applied so restrictively. My view is that we should now make clear that it is one of the three factors which must be assessed and weighed in the exercise of judicial discretion. It would be better, in my respectful view, to refer to this third factor as requiring consideration of whether the proposed suit is, in all of the circumstances, and in light of a number of considerations I will address shortly, a reasonable and effective means to bring the challenge to court.

This approach to the third factor better reflects the flexible, discretionary and purposive approach to public interest standing that underpins all of the Court’s decisions in this area. … [50] The Court’s jurisprudence to date does not have much to say about how to assess whether a particular means of bringing a matter to court is “reasonable and effective”.

However, by taking a purposive approach to the issue, courts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality. A flexible, discretionary approach is called for in assessing the effect of these considerations on the ultimate decision to grant or to refuse standing.

There is no binary, yes or no, analysis possible: whether a means of proceeding is reasonable, whether it is effective and whether it will serve to reinforce the principle of legality are matters of degree and must be considered in light of realistic alternatives in all of the circumstances. [51] It may be helpful to give some examples of the types of interrelated matters that courts may find useful to take into account when assessing the third discretionary factor. This list, of course, is not exhaustive but illustrative. • The court should consider the plaintiff’s capacity to bring forward a claim.

In doing so, it should examine amongst other things, the plaintiff’s resources, expertise and whether the issue will be presented in a sufficiently concrete and well-developed factual setting.

• The court should consider whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action. Courts should take into account that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected.

Of course, this should not be equated with a licence to grant standing to whoever decides to set themselves up as the representative of the poor or marginalized. • The court should turn its mind to whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination. Courts should take a practical and pragmatic approach. … • The potential impact of the proceedings on the rights of others who are equally or more directly affected should be taken into account.

Indeed, courts should pay special attention where private and public interests may come into conflict. … [ 76 ] In relation to the above criteria for consideration, it would seem that the Applicants have sufficient resources and capacity to undertake this judicial review, as demonstrated through their involvement in other litigation, and they are represented by counsel who have experience with these issues. There are no realistic alternatives to the Applicants bringing the case via judicial review, as was acknowledged by the Department.

The Department concedes that pursuant to s. 138(2) of the Act , a decision of the Minister to approve or reject an undertaking registered under

Part IV of the Act may not be appealed to the Supreme Court of Nova Scotia. Therefore, judicial review appears to be the only mechanism for the Applicants to challenge the Minister’s Decision. [ 77 ] The Applicants bring a perspective to the issues which is distinct from those more directly affected, and such perspective is likely to be only brought forward by public interest applicants. There is no indication that any other individuals or groups were interested in, or deliberately refrained from, bringing a similar challenge.

The case is of some public interest given the noted submissions during the public comment period of the environmental assessment from the Applicants and other interest groups and individuals. [ 78 ] A flexible, discretionary approach is called for in assessing the effect of these considerations on the ultimate decision to grant or to refuse standing. While these considerations appear to favour granting public interest standing, I will return to them when the factors are weighed cumulatively.

Weighing the factors cumulatively and in a purposive and flexible manner [ 79 ] When assessing all three factors cumulatively and purposively, I cannot conclude that they support granting public interest standing to the Applicants. I accept that climate change and the environmental impacts from natural gas production are important issues, but this Decision is not about the approval of the LNG Project; it is about a highway realignment.

While the decision to approve the LNG Project arguably has broad or significant impacts, the same cannot be said of the decision to approve the Highway Realignment Project. [ 80 ] Although it is true that this case is of some public interest and the Applicants bring a distinct perspective to the issues which is likely only to be brought forward by public interest litigants, these considerations do not justify the use of court resources to adjudicate issues that are not sufficiently serious.

While I make no comment on whether public interest standing will ever be granted where the serious issue requirement is clearly not met, I decline to grant it in the specific circumstances of this case. As the Court of Appeal said in Canadian Elevator Industry Education Program v. Nova Scotia (Elevators and Lifts) , 2016 NSCA 80 : In the broadest sense, this is an access to justice issue.

Entertaining marginal cases plainly compromises access to justice for more meritorious claims. (para. 65) [ 81 ] The Applicants have not met their burden of persuading the court that they should be granted public interest standing in relation to the application for judicial review concerning the April 29, 2021, Decision.

(2) Alleged failure to act under Section 10(4) [ 82 ] The Department concedes that the Applicants have private interest standing in relation to the s. 10(4) issue. Based on a consideration of the jurisprudence, and the fact that the Applicants made the s. 10(4) request and are directly impacted, I agree. The Court of Appeal in Canadian Elevator , supra , commented on private interest standing as follows: [12] In the recent decision of Canada (Attorney General) v.

Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 45 , Justice Cromwell speaking for the court mentioned private interest standing in passing: [1] . . . The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue.

In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations … [42] In contrast to the Trustees, the Province refers to the following factors described by Sarah Blake in her text Administrative Law in Canada , 5th ed (Markham: LexisNexis, Canada 2011), that should be considered when determining private interest standing: (

a) Statutory purposes; (

b) The subject matter of the proceeding; (

c) A person’s interest in the subject; (

d) The effect that decision might have on that interest. [43] The considerations proposed by the Province are more comprehensive and better capture the discussions in the jurisprudence.

Importantly, the “merits” of the case are not a consideration. As we shall see, courts have even been ambivalent about the importance ofthe merits in cases of public interest standing. [83] Given the Applicants have private interest standing, there is no need for me to address possible public interest standing inrelation to this issue. The parties also agree there was no exercise of discretion under s. 10(4) and that no decision was made. Section10(4) of the Act states as follows:

(4) Where the Minister, administrator or delegated agent makes a decision under

Section 34, 35, 40, 52, 54 or 56, any person who asksfor a reason for the decision shall, within thirty days, and subject to the Freedom of Information and Protection of Privacy Act, befurnished with a written statement of the decision, setting out the findings of fact upon which it is based and the reasons for the decision. [Emphasis added] [84] I agree that s. 10(4) does not provide for an exercise of discretion. There is no discretion or decision making authority grantedin s. 10(4).

I now turn to whether this conclusion precludes the Applicants’ application for judicial review seeking an order ofmandamus. [85] The Department points to Antigonish/Guysborough Federation of Agriculture v. Antigonish County (Municipality), 2012 NSSC352, aff’d 2013 NSCA 71, and says that without an exercise of discretion, there can be no judicial review. In that case, the applicantsfiled an application for judicial review seeking an order to set aside a “decision” by the Town of Antigonish to sell certain exhibitiongrounds to recover tax arrears. In other words, the applicants were seeking certiorari.

The decision notes that under the MunicipalGovernment Act, SNS 1998, c-18, municipalities were legally obliged to sell any property for which there were taxes unpaid for the threemost recent fiscal years. Rosinski J. held, at para. 90, that a decision necessarily involves an exercise of discretion: … The making of a decision necessarily involves an exercise of discretion.

Not every action taken by a statutory body is a "decision."For example, if the Registrar of Motor Vehicles receives proper information that a particular driver has been found guilty of speedingunder the Motor Vehicle Act, the Registrar will automatically take certain administrative measures -- possibly the addition of points to theperson's driving record abstract, or issuing an automatic suspension of driving privileges, etc.

In such situations the statutory body didnot have a choice -- once it was presented with the required preconditions, it had to act in a specific manner. [Emphasis added] [86] Rosinski J. concluded that the Town had a legal duty to act as it did and as it had no discretion under the legislation, there wasno decision to be judicially reviewed: [114] The only involvement of the Town of Antigonish would be in the mechanical application of its tax rate to the property, classifiedas “commercial,” with the resulting dollar amount of taxes owing each year.

While I appreciate that Civil Procedure Rule 7.01 defines“decision” in a broad manner, the Town of Antigonish did not make a “decision” in the circumstances of this specific case. It had a legalduty to apply its tax rate to the taxable “commercial” property of the County of Antigonish as determined by the provincial assessmentauthority. [115] Thus, there is no “decision” of the Town of Antigonish to be judicially reviewed by this Court. [87] The Court of Appeal, in a brief judgment, affirmed the decision: [1] We are unanimously of the view the appeal should be dismissed.

We agree with the application judge there was no decision of theTown of Antigonish to be judicially reviewed by the Court. The appeal is dismissed with costs of the Town of Antigonish in the amountof $1,000, inclusive of disbursments [sic], to be paid $500 by the Federation of Argiculture [sic] and $500 by the County of Antigonish. [88] The finding in Antigonish/Guysborough, supra, that there was no “decision” to be “judicially reviewed” cannot be taken tomean that “judicial review” is unavailable where there is no “decision”.

Judicial review of administrative action is broader thansubstantive review of administrative decisions. Although predating the current Civil Procedure Rules, in Sand, Surf and Sea Ltd. v. NovaScotia (Transportation and Public Works), 2005 NSSC 233, Murphy J. discussed judicial review and mandamus stating: [28] Judicial review comprises the inherent power of Superior Courts to require administrators to legally exercise delegated statutoryauthority.

Unlike certiorari and prohibition, which prevent statutory delegates from exercising power unlawfully, mandamus compelsperformance of a statutory duty owed to an Applicant when the delegate refuses to exercise power it is compelled to use.

The remedy isnot confined to judicial or quasi-judicial functions, but addresses all types of administrative action. (Jones and deVillars, Principles ofAdministrative Law, 4th ed., p. 585) [29] Although the issue may involve invoking the duty to decide or act, and not determining whether the decision made or action takenwas proper, a mandamus application triggers examination of a decision-maker's performance, and requires consideration of judicialreview principles. (See Mount Sinai Hospital Centre v.

Quebec, 2001 SCC 41 , [2001] 2 S.C.R. 281) [Emphasis added] [89] In Principles of Administrative Law, 7th ed., (Toronto: Thomas Reuters Canada, 2020), at pp. 6-7, Jones and deVillars explainthe prerogative remedies and judicial review as follows: Judicial review is probably the most important means of controlling illegal governmental action. To the extent that such action mayconstitute a wrong otherwise known to law, the statutory delegate will have to demonstrate some legislative provision authorizing it totake the impugned action (or make the impugned decision).

The statutory delegate must be able to demonstrate that its actions fellsquarely within the power granted to it by the federal Parliament or the provincial legislature. If it cannot, its actions will be consideredultra vires (that is, beyond the statutory delegate’s legal authority or jurisdiction) and void.

Superior courts have the inherent power to review the legality of administrative actions performed by statutory delegates; in other words, they have the inherent power to judicially review the actions or decisions of statutory delegates. This inherent power of judicial review is the natural consequence of the courts’ role to interpret the meaning of statutes, including determining the ambit of statutes which grant powers to statutory delegates. Courts decide whether administrative actions are ultra vires .

Superior courts have historically used the prerogative remedies of certiorari , mandamus , prohibition, quo warranto and habeas corpus to exercise supervisory jurisdiction over inferior courts and statutory delegates. [Emphasis added] [ 90 ] The authors further note at pp. 12-13: Most administrative law cases [...] involve applications for judicial review seeking one of the prerogative remedies, or a declaration, injunction, or, sometimes, damages.

While considerable attention used to be given to choosing the right remedy to claim on judicial review and to making certain that the applicant had the proper standing to apply for it, most jurisdictions in the Commonwealth have modernized – and simplified – the procedure for seeking judicial review by establishing a single action known as an application for judicial review, or similar wording, which encompasses all of the prerogative remedies as well as declarations, injunctions and even damages. The prerogative remedies consist of certiorari , prohibition, mandamus, habeas corpus and quo warranto . In

summary: • Certiorari is an order from a superior court compelling a statutory delegate to render up all of the record of its proceedings to permit the superior court to determine the lawfulness thereof.

If the superior court’s review indicates a jurisdictional error (or, in some circumstances, some other error of law on the face of the record), it will quash the proceedings or decision of the statutory delegate and remit the matter back to the statutory delegate to be determined according to law. … • Mandamus is a command by a superior court compelling a statutory delegate to fulfill a statutory duty delegated to it.

For example, an order of mandamus can be used to compel an immigration officer to permit a Canadian citizen to enter Canada, because the citizen has that right and the officer has a corresponding duty to permit him or her to do so. While mandamus can be used to compel a statutory delegate to comply with a statutory duty to exercise its discretion, it generally cannot be used to make the statutory delegate exercise is discretion in a particular way … [Emphasis added] [ 91 ] While recognizing it is not a Nova Scotia case, I note that the British Columbia Court of Appeal in Wu v.

Vancouver (City) , 2019 BCCA 23 , leave to appeal denied, [2019] S.C.C.A. No. 90, held that where an official fails to act in a manner required by statute, the proper remedy is judicial review: 40 Where an official fails to act in a manner required by statute and accordingly breaches his or her statutory obligations, remedies exist in administrative law. For current purposes, it is sufficient to note that the duty described by the judge is simply a duty to make a decision, not to make a particular decision where the official has a choice or a discretion about what decision to make within the regulatory scheme.

Mandamus lies to compel an official to make a decision. It is a remedy for delay. Its availability does not depend on an official having a duty to make a particular decision. … … 47 With respect, the analysis in Holland appears to me to be directly applicable to this appeal. The duty described by the judge is no more than an action for negligent breach of statutory duty by a public authority. The proper remedy is judicial review. A failure to act as required by statutory authority is properly remedied by an order in the nature of mandamus compelling the authority to decide.

The duty recognized by the judge amounts to a fundamental shift in the way in which public and private spheres have historically addressed improper governmental action. [Emphasis added] [ 92 ] As Jones and de Villars note, most jurisdictions have simplified the procedure for seeking judicial review by establishing a single action known as an “application for judicial review”, which encompasses all the prerogative remedies. In Nova Scotia, that simplified procedure is outlined in Civil Procedure Rule 7 and, unlike other jurisdictions, includes a definition of “decision”.

Since the Rule governs applications for certiorari , prohibition, and mandamus alike, it necessarily defines “decision” and “decision-making authority” broadly:

Interpretation in Rule 7 7.01 In this Rule, “decision”, includes all of the following: (

i) an action taken, or purportedly taken, under legislation, (ii) an omission to take action required, or purportedly required, by legislation, (iii) a failure to make a decision ; “decision-making authority” includes anyone who makes, neglects to make, takes, or neglects to take a decision.

[ 93 ] Rule 7.11 sets out the orders available on an application for judicial review of a “decision”, as defined at Rule 7.01: 7.11 Order following review The court may grant any order in the court’s jurisdiction that will give effect to a decision on a judicial review, including any of the following orders: (

a) an order dismissing the proceeding; (

b) an order setting aside the decision under review, or part of it, and terminating any legal process flowing from the decision, or the part; (

c) an injunction preventing a respondent from doing anything, or requiring a respondent to do anything; (

d) a declaration that the respondent lacks the authority or has authority to do something; (

e) an order providing anything formerly provided by prerogative writ. [Emphasis added] [ 94 ] I agree with the Applicants’ position that the fact that no “decision” was made under s. 10(4) of the Environment Act , as that term is defined in Antigonish/Guysborough , does not mean that judicial review is unavailable. Rule 7 states otherwise. I am of the view that the wording of Rule 7 cannot be interpreted other than to include an alleged failure to act.

The Rule makes special reference to “an omission to take action required, or purportedly required, by legislation” and “a failure to make a decision.” The Rule also defines decision-making authority to include “anyone who makes, neglects to make, takes, or neglects to take a decision.” [ 95 ] The word “ mandamus ” only appears in Civil Procedure Rule 64, which deals with prerogative writs in criminal proceedings, and, even in that context, the application for mandamus is dealt with under Rule 7: see Rule 64.03.

The Rules provide no other means for an applicant to compel the performance of a statutory duty . [ 96 ] In addition, I refer to Canadian Broadcasting Corporation v. Nova Scotia (Attorney General) , 2010 NSSC 295 , where an alleged omission to take action required, or purportedly required, under legislation, was found to be a “decision” within the meaning of Rule 7.01. Justice Moir stated: [16] A "decision" includes "an omission to take action required, or purportedly required, by legislation": Rule 7.01(ii).

The premise of the CBC's notice for judicial review is that the Provincial Court omits to index its search warrant records although that is required by the Constitution Act . (The Constitution Act is within the meaning of "legislation" in Rule 94.10.) [17] Therefore, it would have been permissible for the CBC to have named the Provincial Court of Nova Scotia as a respondent, if the decision at issue were one for the Provincial Court to independently make. A more convenient approach might have been to name the Chief Judge of the Provincial Court as a representative party under Rule 36.02.

He speaks for the court on administrative and political subjects, but he does so in collaboration with his colleagues who, for all practical purposes, make up the Provincial Court of Nova Scotia as an institution outside of its sittings. [ 97 ] I note that Rule 7 has also been applied in relation to a failure to act in Bancroft v. Nova Scotia (Lands and Forests) , 2020 NSSC 175 . [ 98 ] In conclusion, the statements in Annapolis/Guysborough , supra , must be confined to the facts in that case.

The proceeding involved applicants seeking substantive review of a non-discretionary step or action taken under legislation. The court held that, in such circumstances, there was nothing to review. It cannot be unreasonable or incorrect for a statutory delegate to do something which it is required to do under statute. Annapolis/Guysborough , supra , did not involve a failure or an omission to take action required by legislation. The applicants there sought to review an action that had been taken; one that was required to be taken under the legislation. The order sought was certiorari , not mandamus .

As noted above, the definition of “decision” under Rule 7.01 specifically includes “an omission to take action required” and “a failure to make a decision”. In addition, the definition of “decision-making authority” includes “anyone who makes, neglects to make, takes, or neglects to take a decision.” [ 99 ] If judicial review under Rule 7 were deemed to apply only to discretionary decisions, it follows that there would be no express means available under the current Civil Procedure Rules to compel a statutory delegate to perform a duty required by legislation.

Unlike the Civil Procedure Rules (1972), the current Rules do not provide for a stand-alone application for an order in the nature of mandamus . Rule 7 includes multiple references to failure to take action and specifically refers to the prerogative writs, which include mandamus . In short, it encompasses judicial review to compel an authority to act in a manner required by statute. [ 100 ] Nothing in this decision should be taken to comment on the merits of the application for judicial review.

I have simply decided the preliminary motion and concluded that the Applicants’ application for judicial review relating to the s. 10(4) request can proceed to hearing. Alternate argument re appeal under

Section 137 [ 101 ] The Department argues, in the alternative, that if the response of May 3, 2021, was a discretionary decision, then it was a decision of an administrator subject to the appeal process set out in s. 137 of the Act . As I have found that s. 10(4) does not envision an exercise of discretion, there is no need for me to address this alternative argument. Conclusion [ 102 ] The Department’s preliminary motion is successful, in part. The Applicants lack both private and public interest standing in this

matter as it relates to the Minister’s Decision of April 29, 2021. Their application for judicial review in this regard is dismissed. [ 103 ] The Applicants’ application for judicial review with reference to s. 10(4) of the Act , seeking an order in the nature of mandamus directing the Minister to provide the Applicants with the written statement of the Decision setting out the findings of fact upon which it is based and the reasons for the Decision, can proceed to a hearing on the merits. [ 104 ] I ask that Mr. Thompson, counsel for the Respondents, prepare the form of order.

If the parties are unable to agree on costs, I will entertain brief written submissions within ten days of this decision. Jamieson, J.