876947 Ontario Limited (RPR Environmental) v. Canada (Attorney General)

876947 Ontario Limited (RPR Environmental) v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2013-06-14 Neutral citation 2013 FCA 156 File numbers A-524-12 Decision Content Date: 20130614 Docket: A-524-12 Citation: 2013 FCA 156 CORAM: SHARLOW J.A. DAWSON J.A. GAUTHIER J.A. BETWEEN: 876947 ONTARIO LIMITED O/A RPR ENVIRONMENTAL AND PATRICK WHITTY Appellants and THE ATTORNEY GENERAL OF CANADA Respondent Heard at Toronto, Ontario, on May 7, 2013. Judgment delivered at Ottawa, Ontario, on June 14, 2013. REASONS FOR JUDGMENT BY: DAWSON J.A. CONCURRED IN BY: SHARLOW J.A. GAUTHIER J.A. Date: 20130614 Docket: A-524-12 Citation: 2013 FCA 156 CORAM: SHARLOW J.A. DAWSON J.A. GAUTHIER J.A. BETWEEN: 876947 ONTARIO LIMITED O/A RPR ENVIRONMENTAL AND PATRICK WHITTY Appellants and THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT DAWSON J.A. [1] The issue raised on this appeal is whether a judge of the Federal Court erred by upholding an order made by a prothonotary that struck out portions of the appellants’ fresh as amended notice of application. As I understand the Judge’s reasons, the Judge proceeded to exercise his discretion de novo and dismissed the appeal on three grounds which are discussed in more detail later in these reasons (2012 FC 1356, unreported reasons issued in Court File T-2176-10 on November 23, 2012). In my view, the Judge committed a number of errors in his analysis such that the appeal should be allowed. Factual Background [2] The Federal Court proceeding arises out of an investigation allegedly conducted on behalf of the Minister of the Environment by the Environmental Enforcement Directorate of Environment Canada (EED) as a result of an application made to it pursuant to section 17 of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (Act). The appellants, applicants in the Federal Court, assert that there was no valid basis on which to commence and continue the investigation, the EED failed to discontinue the investigation, or alternatively, the EED failed to produce reports required by sections 19 and 21 of the Act. Amongst other things, the appellants seek the following relief in the Federal Court: (a) A declaration that the purported section 17 application is null and void and ineffective because it was not made by a qualified individual, that is, a person who is resident in Canada and at least 18 years of age, and because the section 17 application did not include a solemn affirmation or declaration containing certain information as required by subsection 17(2) of the Act; (b) A writ of certiorari quashing the Minister’s decision to investigate the matters set out in the purported section 17 application; (c) A writ of mandamus requiring the Minister and his agents to discontinue their section 17 investigation, or in the alternative, a writ of prohibition against the Minister and his agents continuing the section 17 investigation; and (d) If the section 17 investigation has already been discontinued, a writ of mandamus requiring the Minister to send to the appellants a copy of the written report describing the information obtained during the investigation and stating the reasons for its discontinuation, as required by subsection 21(2) of the Act. [3] The respondent’s motion to strike portions of the fresh as amended notice of application was based on two grounds. First, the respondent argued that the officers of the EED are peace officers who exercise broad law enforcement powers. Thus, an investigation undertaken pursuant to section 18 of the Act is a criminal investigation. As such, the Federal Court lacked jurisdiction to review the decision of the EED. Moreover, the impugned portions of the amended application were said to amount to a collateral attack on the criminal process and, as a result, were an abuse of process. Second, the respondent asserted that a decision by an officer of the EED to undertake an investigation is not a “decision” within the meaning of section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 because the decision does not affect the rights or interests of the subject of the investigation. [4] The Prothonotary and the Judge struck the allegations relating to the improper commencement and continuation of the investigation, as well as the allegation that the EED failed to discontinue the investigation. The claims for relief contained in paragraphs (a), (b) and (c), set out above, were also struck out, as well as a request for the appointment of an amicus curiae. The claim for relief contained in paragraph (d) was not struck, nor were the paragraphs of the pleading which relate to this ground of relief. The scheme of the Act [5] In order to consider the merits of the motion to strike, it is necessary to understand the scheme of the Act. [6] Part 2 of the Act is entitled “Public Participation”. For the purpose of this appeal, relevant provisions found in Part 2 are: i. An individual, resident in Canada and 18 years of age and older, may apply to the Minister of the Environment for the investigation of any offence under the Act that the individual alleges has occurred (subsection 17(1)). ii. The application shall include a solemn affirmation or declaration that sets out certain specified information (subsection 17(2)). iii. The Minister is required to acknowledge receipt of the application within 20 days of receipt and “shall investigate all matters that the Minister considers necessary to determine the facts relating to the alleged offence” (section 18). iv. After acknowledging receipt of the application, the Minister shall report to the applicant every 90 days on the progress of the investigation and the action, if any, that the Minister has taken or proposes to take. Generally, but not always, the Minister shall include in the report an estimate of the time required to complete the investigation or to implement the action (section 19). v. At any stage of the investigation, the Minister may send documents or other evidence to the Attorney General of Canada for consideration of whether an offence under the Act has been, or is about to be, committed and for any action the Attorney General may wish to take (section 20). vi. The Minister may discontinue the investigation if of the view that the alleged offence does not require further investigation or that the investigation does not substantiate the alleged offence (subsection 21(1)). vii. If the investigation is discontinued, the Minister shall prepare a report in writing that describes the information obtained during the investigation and states the reasons for the discontinuance of the investigation. A copy of this report is to be provided to the applicant and to any person whose conduct was investigated (subsection 21(2)). viii. An individual who applied for an investigation may bring an environmental protection action against an alleged offender if the Minister failed to conduct an investigation and report within a reasonable time, or if the Minister’s response to the investigation was unreasonable (subsection 22(1)). ix. In the environmental protection action the individual may seek relief including a declaratory order and interlocutory or final injunctive relief. The individual may not claim damages (subsection 22(3)). x. An environmental protection action may not be brought against a person if, in response to the alleged conduct on which the action is based, the person was convicted under the Act, or environmental protection alternative measures within the meaning of Part 10 of the Act were used to deal with the person (section 25). xi. The alleged offence in an environmental protection action is to be proven on a balance of probabilities (section 29). [7] Part 10 of the Act is entitled “Enforcement”. Relevant provisions contained in Part 10 are: i. The Minister may designate enforcement officers for the purposes of the Act or any provision of the Act (subsection 217(1)). ii. Such officers have all of the powers of a peace officer, except that the Minister may specify limits on those powers (subsection 217(3)). [8] Sections 17 to 22, 25 and 217 of the Act are set out in the appendix to these reasons. The test on a motion to strike a notice of application [9] It is well settled law that notices of application for judicial review are struck only in exceptional circumstances. The test to be applied is whether the application is so clearly improper as to be bereft of any possibility of success. Unless this stringent test can be met, the proper way to contest an application is to appear and argue at the hearing of the application (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.)). [10] In my view, particular caution is required on a motion to strike when only a portion of a notice of application is impugned, and that portion is integrally related to the remaining portion of the application. As noted in David Bull, objections to the application can be dealt with promptly and efficiently in the context of consideration of the merits of the case, particularly where a portion of the application is to proceed to hearing in any event. As well, the Judge hearing the application may be constrained if integrally related portions of the application have been struck out. The decision of the Prothonotary [11] The Prothonotary struck the impugned provisions of the application on the basis that there was no reviewable decision. The Minister’s decision to refer an application for further investigation initiates a process that may or may not result in a decision to lay charges. In the Prothonotary’s view, this is a preliminary step that in and of itself does not constitute a decision that is subject to judicial review. The decision of the Judge [12] After setting out the factual background, the Judge accepted the joint submission of the parties that the appeal should proceed as a de novo hearing. He then appended relevant provisions of the Act to his reasons and quoted sections 18 and 18.1 of the Federal Courts Act. [13] The Judge then directed himself to whether in the circumstances before the Court a “peace officer” acts as a federal board, commission or other tribunal. The Judge found that the officer’s decision to initiate an investigation was made by a federal board so that the Federal Court could judicially review the decision. To reach this conclusion the Judge correctly set out the two-step test to be applied, as articulated in Anisman v. Canada (Border Services Agency), 2010 FCA 52, 400 N.R. 137, at paragraph 29 (reasons, paragraph 16). However, the Judge did not apply this test to the facts before him. Instead, he appears to have concluded at paragraph 17 of his reasons (the language of which is not entirely clear) that the Minister or a delegate of the Minister acts as a “federal board, commission or other tribunal” as defined in section 2 of the Federal Courts Act when exercising or purporting to exercise the Minister’s authority under section 18 of the Act. [14] The Judge then gave three reasons for upholding the decision of the Prothonotary. [15] First, the Judge found that the Minister’s decision was not susceptible to review because it did not amount to a decision affecting the legal rights of the appellants, nor did it impose any legal obligations or cause prejudicial effects. No reasons were given for this conclusion (reasons, paragraph 19). [16] Second, the Judge noted that only in exceptional circumstances should interlocutory decisions be judicially reviewed. No analysis was conducted into whether the circumstances before the Court were exceptional (reasons, paragraph 20). [17] Finally, the Judge noted that there were related proceedings pending in the Ontario Superior Court of Justice. This allowed the Federal Court, in its discretion, to decline to exercise its jurisdiction to judicially review a decision where an applicant has an adequate alternative remedy. In the Judge’s view, the Ontario proceeding provided such a remedy, although no reasons were given for this conclusion (reasons, paragraph 21). Analysis [18] In my view, the Judge did not err in his conclusion that he was required to review the Prothonotary’s decision on a de novo basis. [19] I also agree that a person acting under section 18 of the Act, that is, a person who is investigating “all matters that the Minister considers necessary to determine the facts relating to the alleged offence” is a person who exercises, or purports to exercise, powers conferred by an Act of Parliament. Such a person therefore fall within the definition of “federal board, commission or other tribunal” found in section 2 of the Federal Courts Act. [20] I now consider the three grounds the Judge relied upon to find that the impugned portions of the application should be struck out. [21] To begin, as noted above at paragraph 3, the motion to strike was brought on two grounds. During the oral argument of this appeal, counsel confirmed that no one argued before the Federal Court that either the interlocutory nature of the decision or the existence of an adequate alternate remedy would justify an order striking portions of the application. The respondent did not seek to uphold the decision of the Federal Court on either of these grounds. [22] As this Court recently noted in Wells Fargo Equipment Finance Co. v. MLT-3 (The), 2013 FCA 96, [2013] F.C.J. No. 380, at paragraph 21 (citing Rodaro v. Royal Bank of Canada, (2002), 59 O.R. (3d) 74 (C.A.)) when a judge decides to take the unusual step of deciding a case on a basis not argued by counsel, fairness generally requires that the parties be advised and be afforded the opportunity to make submissions on the new issue or issues. In my view, in the present case the Judge ought to have afforded that opportunity to the parties. [23] I now turn to the first reason given by the Judge for striking the impugned portions of the application: the decision to initiate an investigation does not affect the legal rights of the appellants, nor does it impose legal obligations or cause prejudicial effects. [24] I disagree that the appellants’ submissions that their legal rights were affected is an argument bereft of any possibility of success. As the review of the legislative regime shows, it is at least arguable that legal consequences flow from the commencement of an investigation under section 18 of the Act. The subject of the investigation is exposed to the risk that the matter may be referred to the Attorney General (section 20), exposed to the risk of that an environmental protection action will be commenced (section 22) and entitled to a report if the investigation is discontinued (section 21). Moreover, the evidentiary record before the Federal Court did not provide a sufficient evidentiary basis for the Judge’s conclusion that the decision did not cause the appellants to suffer prejudicial effects. [25] The Judge’s second reason was that only in exceptional circumstances should interlocutory decisions be judicially reviewed. Assuming, without deciding, that the decision at issue is interlocutory in nature, this is not a basis in law for striking portions of a notice of application. Rather, it is a ground on which the Federal Court may decline to exercise its discretion to grant a remedy when it determines the merits of the application for judicial review. [26] The Judge’s final reason was the existence of an adequate alternate remedy: a pending tort claim in the Ontario Superior Court of Justice. Again, the existence of an adequate alternate remedy is a ground on which the Federal Court may decline to grant a remedy when it determines the merits of the application for judicial review. It is not a basis in law for striking a notice of application, or portions thereof. This is particularly the case when the appellants were not afforded the opportunity to adduce evidence or make submissions on the adequacy of the remedy. [27] In light of these errors it is necessary for this Court to consider the Prothonotary’s decision de novo. [28] The grounds on which the motion to strike was based are set out at paragraph 3 above. I have already dealt with the second ground that no decision was made that affected the appellants’ rights. The first ground is premised on the thesis that a decision made under section 18 of the Act is made by a peace officer as part of a criminal process. [29] It is not plain and obvious to me that this is so. During oral argument we were informed that the legislation at issue has not been judicially considered. In my view, it is at least arguable that a section 18 investigation is completely separate from the exercise of peace officer powers under Part 10 of the Act. Support for this position may be found in sections 20 and 29 of the Act. Section 20, read in context, could support the conclusion that there is no criminal investigation until the matter is referred to the Attorney General for consideration. Section 29 shows that in one of the possible outcomes from an investigation, an environmental protection action, the offence alleged is to be established on the civil, not criminal standard of proof. A lower standard of proof from that applied in the criminal process could again support the argument that the section 18 process is not criminal in nature. [30] As I would allow the appeal, so that the application for judicial review will proceed on the merits in its entirety, it is inappropriate to express a final conclusion on these arguments. It is sufficient to find, as I have, that the argument that a person exercising authority under section 18 of the Act is not acting as a peace officer in a criminal process is not bereft of any possibility of success. Conclusion [31] For these reasons, I would allow the appeal and set aside the order of the Federal Court with costs both here and below in any event of the cause. Making the order the Federal Court should have made, I would dismiss the motion to strike portions of the notice of application. Postscript [32] During the oral argument of this appeal a factual dispute emerged about whether the investigation has been concluded against the individual appellant. Counsel for the respondent indicated it was concluded. The record on this point is, in my view, ambiguous. It would be open to the parties, and helpful to the Federal Court, if the parties were to clarify the record on this point. “Eleanor R. Dawson” J.A. “I agree. K. Sharlow J.A.” “I agree. Johanne Gauthier J.A.” APPENDIX Sections 17 to 22, as well as sections 25 and 217 of the Canadian Environmental Protection Act, 1999 read as follows: 17. (1) An individual who is resident in Canada and at least 18 years of age may apply to the Minister for an investigation of any offence under this Act that the individual alleges has occurred. (2) The application shall include a solemn affirmation or declaration (a) stating the name and address of the applicant; (b) stating that the applicant is at least 18 years old and a resident of Canada; (c) stating the nature of the alleged offence and the name of each person alleged to have contravened, or to have done something in contravention of, this Act or the regulations; and (d) containing a concise statement of the evidence supporting the allegations of the applicant. (3) The Minister may prescribe the form in which an application under this section is required to be made. 18. The Minister shall acknowledge receipt of the application within 20 days of the receipt and shall investigate all matters that the Minister considers necessary to determine the facts relating to the alleged offence. 19. After acknowledging receipt of the application, the Minister shall report to the applicant every 90 days on the progress of the investigation and the action, if any, that the Minister has taken or proposes to take, and the Minister shall include in the report an estimate of the time required to complete the investigation or to implement the action, but a report is not required if the investigation is discontinued before the end of the 90 days. 20. At any stage of an investigation, the Minister may send any documents or other evidence to the Attorney General of Canada for consideration of whether an offence has been or is about to be committed under this Act and for any action that the Attorney General may wish to take. 21. (1) The Minister may discontinue the investigation if the Minister is of the opinion that (a) the alleged offence does not require further investigation; or (b) the investigation does not substantiate the alleged offence. (2) If the investigation is discontinued, the Minister shall (a) prepare a report in writing describing the information obtained during the investigation and stating the reasons for its discontinuation; and (b) send a copy of the report to the applicant and to any person whose conduct was investigated. 22. (1) An individual who has applied for an investigation may bring an environmental protection action if (a) the Minister failed to conduct an investigation and report within a reasonable time; or (b) the Minister’s response to the investigation was unreasonable. (2) The action may be brought in any court of competent jurisdiction against a person who committed an offence under this Act that (a) was alleged in the application for the investigation; and (b) caused significant harm to the environment. (3) In the action, the individual may claim any or all of the following: (a) a declaratory order; (b) an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute an offence under this Act; (c) an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent the continuation of an offence under this Act; (d) an order to the parties to negotiate a plan to correct or mitigate the harm to the environment or to human, animal or plant life or health, and to report to the court on the negotiations within a time set by the court; and (e) any other appropriate relief, including the costs of the action, but not including damages. […] 25. An environmental protection action may not be brought against a person if the person was convicted of an offence under this Act, or environmental protection alternative measures within the meaning of Part 10 were used to deal with the person, in respect of the alleged conduct on which the action is based. […] 217. (1) The Minister may designate as enforcement officers or analysts for the purposes of this Act, or any provision of this Act, (a) persons or classes of persons who, in the Minister’s opinion, are qualified to be so designated; and (b) with the approval of a government, persons or classes of persons employed by the government in the administration of a law respecting the protection of the environment. (2) Every enforcement officer or analyst shall be furnished with a certificate of designation as an enforcement officer or analyst, as the case may be, and on entering any place under section 218 or 220, as the case may be, shall, if so requested, produce the certificate to the person in charge of the place. (3) For the purposes of this Act and the regulations, enforcement officers have all the powers of a peace officer, but the Minister may specify limits on those powers when designating any person or class of persons. (4) Every power — including arrest, entry, search and seizure — that may be exercised in Canada in respect of an offence under this Act or the Criminal Code may, in respect of an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division, or in respect of an offence under the Criminal Code that is committed in the course of enforcement of this Act, be exercised in an area of the sea referred to in paragraph 122(2)(c) if the offence was committed in that area of the sea. (5) The powers referred to in subsection (4) may be exercised in an area of the sea referred to in paragraph 122(2)(g) if hot pursuit has been commenced in Canada or in an area of the sea referred to in any of paragraphs 122(2)(a) to (e) and (g). (6) The powers referred to in subsection (4) may not be exercised under that subsection or subsection (5) in relation to a ship that is not a Canadian ship, or to a foreign national who is on board such a ship, without the consent of the Attorney General of Canada. 17. (1) Tout particulier âgé d’au moins dix-huit ans et résidant au Canada peut demander au ministre l’ouverture d’une enquête relative à une infraction prévue par la présente loi qui, selon lui, a été commise. (2) La demande est accompagnée d’une affirmation ou déclaration solennelle qui énonce : a) les nom et adresse de son auteur; b) le fait que le demandeur a au moins dix-huit ans et réside au Canada; c) la nature de l’infraction reprochée et le nom des personnes qui auraient contrevenu à la présente loi ou à ses règlements ou auraient accompli un acte contraire à la présente loi ou à ses règlements; d) un bref exposé des éléments de preuve à l’appui de la demande. (3) Le ministre peut fixer, par règlement, la forme de la demande. 18. Le ministre accuse réception de la demande dans les vingt jours de sa réception et fait enquête sur tous les points qu’il juge indispensables pour établir les faits afférents à l’infraction reprochée. 19. À intervalles de quatre-vingt-dix jours à partir du moment où il accuse réception de la demande jusqu’à l’interruption de l’enquête, le ministre informe l’auteur de la demande du déroulement de l’enquête et des mesures qu’il a prises ou entend prendre. Il indique le temps qu’il faudra, à son avis, pour compléter l’enquête ou prendre les mesures en cause selon le cas. 20. Il peut, à toute étape de l’enquête, transmettre des documents ou autres éléments de preuve au procureur général du Canada pour lui permettre de déterminer si une infraction prévue à la présente loi a été commise ou est sur le point de l’être et de prendre les mesures de son choix. 21. (1) Le ministre peut interrompre l’enquête s’il estime que l’infraction reprochée ne justifie plus sa poursuite ou que ses résultats ne permettent pas de conclure à la perpétration de l’infraction. (2) En cas d’interruption de l’enquête, il établit un rapport exposant l’information recueillie et les motifs de l’interruption et en envoie un exemplaire à l’auteur de la demande et aux personnes dont le comportement fait l’objet de l’enquête. La copie du rapport envoyée à ces dernières ne doit comporter ni les nom et adresse de l’auteur de la demande ni aucun autre renseignement personnel à son sujet. 22. (1) Le particulier qui a demandé une enquête peut intenter une action en protection de l’environnement dans les cas suivants : a) le ministre n’a pas procédé à l’enquête ni établi son rapport dans un délai raisonnable; b) les mesures que le ministre entend prendre à la suite de l’enquête ne sont pas raisonnables. (2) L’action en protection de l’environnement peut être intentée devant tout tribunal compétent contre la personne qui, selon la demande, aurait commis une infraction prévue à la présente loi, si cette infraction a causé une atteinte importante à l’environnement. (3) Dans le cadre de son action, le particulier peut demander : a) un jugement déclaratoire; b) une ordonnance — y compris une ordonnance provisoire — enjoignant au défendeur de ne pas faire un acte qui, selon le tribunal, pourrait constituer une infraction prévue à la présente loi; c) une ordonnance — y compris une ordonnance provisoire — enjoignant au défendeur de faire un acte qui, selon le tribunal, pourrait empêcher la continuation de l’infraction; d) une ordonnance enjoignant aux parties de négocier un plan de mesures correctives visant à remédier à l’atteinte à l’environnement, à la vie humaine, animale ou végétale ou à la santé, ou à atténuer l’atteinte, et de faire rapport au tribunal sur l’état des négociations dans le délai fixé par celui-ci; e) toute autre mesure de redressement indiquée — notamment le paiement des frais de justice — autre que l’attribution de dommages-intérêts. . . . 25. Elle ne peut non plus être intentée si la personne en cause a déjà, pour le comportement reproché, soit été déclarée coupable d’une infraction prévue à la présente loi, soit fait l’objet de mesures de rechange au sens de la partie 10. . . . 217. (1) Le ministre peut désigner, à titre d’agent de l’autorité ou d’analyste pour l’application de tout ou partie de la présente loi : a) les personnes — ou catégories de personnes — qu’il estime compétentes pour occuper ces fonctions; b) avec l’approbation d’un gouvernement, les personnes affectées — à titre individuel ou au titre de leur appartenance à une catégorie — par celui-ci à l’exécution d’une loi concernant la protection de l’environnement. (2) L’agent de l’autorité ou l’analyste reçoit un certificat attestant sa qualité, qu’il présente, sur demande, au responsable du lieu qu’il visite en vertu des articles 218 ou 220, selon le cas. (3) Pour l’application de la présente loi et de ses règlements, l’agent de l’autorité a tous les pouvoirs d’un agent de la paix; le ministre peut toutefois restreindre ceux-ci lors de la désignation. (4) Les pouvoirs — notamment en matière d’arrestation, de visite, de perquisition ou de saisie — pouvant être exercés au Canada à l’égard d’une infraction sous le régime de la présente loi ou du Code criminel peuvent l’être, à l’égard d’une infraction à la section 3 de la partie 7 ou à tout règlement pris en vertu de cette section ou d’une infraction au Code criminel commise dans le cadre de l’application de la présente loi, dans tout espace visé à l’alinéa 122(2)c) si l’infraction y est commise. (5) Les pouvoirs visés au paragraphe (4) peuvent être exercés dans tout espace visé à l’alinéa 122(2)g) en cas de poursuite immédiate entamée au Canada ou dans un espace visé à l’un des alinéas 122(2)a) à e) et g). (6) Les pouvoirs visés au paragraphe (4) ne peuvent être exercés en vertu de ce paragraphe ou du paragraphe (5) à l’égard d’un navire autre qu’un navire canadien ou à l’égard d’un étranger se trouvant à bord d’un navire autre qu’un navire canadien sans le consentement du procureur général du Canada. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-524-12 STYLE OF CAUSE: 876947 ONTARIO LIMITED O/A RPR ENVIRONMENTAL AND PATRICK WHITTY v. THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 7, 2013 REASONS FOR JUDGMENT BY: DAWSON J.A. CONCURRED IN BY: SHARLOW J.A. GAUTHIER J.A. DATED: June 14, 2013 APPEARANCES: Vilko Zbogar Kim Stanton FOR THE APPELLANTS Michael J. Sims Andrew Laws FOR THE RESPONDENT SOLICITORS OF RECORD: Zbogar Advocate Professional Corporation Toronto, Ontario FOR THE APPELLANTS William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT