Citizens Against Radioactive Neighbourhoods v. BWXT Nuclear Energy Inc.

Date: 20220609

Docket: T-228-21

Citation: 2022 FC 849

Ottawa, Ontario, June 9, 2022

PRESENT: The Honourable Mr. Justice Mosley

BETWEEN:

CITIZENS AGAINST RADIOACTIVE

NEIGHBOURHOODS

Applicant

and

BWXT NUCLEAR ENERGY CANADA INC

Respondent

JUDGMENT AND REASONS

I.

Overview

[1]

This is a case where community interests are in conflict with those of a business subject

to a regulatory regime designed to protect the public. The question before the Court is whether

the regulatory body responsible for administering the regime failed to discharge its duties

properly in rendering a decision about the operations of the company. The test the Court must

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apply is not whether the Court agrees with the decision but whether it met the legal standard of

reasonableness.

[2]

The Applicant, Citizens Against Radioactive Neighbourhoods, seeks judicial review of a

decision of the Canadian Nuclear Safety Commission [Commission] renewing BWXT Nuclear

Energy Canada Inc.’s [Respondent] licence to operate two nuclear facilities in Toronto and

Peterborough, Ontario. The Applicant argues that the Commission’s decision was unlawful and

unreasonable on account of the licence conditions attached to the production of uranium dioxide

fuel pellets in the Peterborough facility, which they deem contrary to statutory and regulatory

requirements.

[3]

For the reasons that follow, the Court concludes that the decision was lawful and

reasonable. As a result, the application for judicial review is dismissed.

II.

Facts

[4]

The Applicant is an unincorporated non-profit organization, based in Peterborough, and

established in spring 2019 in response to the Respondent’s intention to request a ten-year licence

renewal from the Commission which would permit the production of uranium dioxide fuel

pellets at the Peterborough facility. Previously, the pellets were produced at the Respondent’s

premises in Toronto and installed in fuel bundles at the Peterborough plant. The Respondent

sought approval of its licence renewal with conditions that would permit it to consolidate the

operation at one location, possibly Peterborough, for business reasons.

Page: 3

[5]

The Applicant was an active participant in the review of the Respondent’s licence

renewal application and made numerous written and oral submissions to the Commission. The

Applicant’s membership incudes local residents, parents of children who currently attend or

formerly attended an elementary school adjacent to the Peterborough facility, and individuals

living in proximity to the plant.

[6]

The Respondent is a corporation that owns and operates nuclear fuel manufacturing

facilities in Toronto, Peterborough, and Arnprior. Prior to 2016, the Toronto and Peterborough

facilities were operated by GE-Hitachi Nuclear Energy Canada Inc. The Commission transferred

the operating licence for these facilities to the Respondent following its acquisition of that

company. The original plant, which now houses the Respondent’s operation in Peterborough,

was apparently built in 1892. It is not clear from the record whether the area was then a

residential community or that it became one thereafter.

[7]

The Commission is a quasi-judicial administrative tribunal, court of record and regulator

established pursuant to s 8(1) of the Nuclear Safety and Control Act, SC 1997, c 9 [NSCA]. It is

statutorily mandated to regulate the development, production, use and possession of nuclear

energy and nuclear substances in order to prevent unreasonable risk to the environment and to

the health and safety of persons: NSCA, s 9(a)(i). The Commission is a specialized body with

extensive technical expertise at its disposal: Greenpeace Canada v Canada (Attorney General),

2014 FC 463 at para 233 [Greenpeace FC].

Page: 4

[8]

On November 2, 2018, the Respondent applied [Licence Application] to the Commission

for a ten-year renewal of its Nuclear Fuel Facility Operating Licence for its two Class IB

facilities in Toronto and Peterborough, Ontario. The Respondent’s existing licence [2010

Licence] was granted in 2010 to GE-Hitachi Nuclear Energy Canada Inc. for a ten-year term

expiring on December 31, 2020. That licence was transferred to the Respondent in December

2016 following the Respondent’s acquisition of the company. The 2010 Licence amalgamated

the Toronto and Peterborough facilities into a single licence, allowing the production of uranium

dioxide fuel pellets at the Toronto facility and fuel bundle assemblage at the Peterborough

facility.

[9]

Pelleting operations consist of the production of natural and depleted uranium dioxide

(UO₂) pellets, which are then used together with zircalloy tubes to assemble fuel bundles for

nuclear power reactors.

[10] In its Licence Application, the Respondent sought the Commission’s authorization to

conduct commercial fuel pelleting operations at the Peterborough facility. These operations were

previously limited to only the Toronto facility under the 2010 Licence. The Peterborough facility

is located in a residential area of downtown Peterborough and is immediately adjacent to an

elementary school, Prince of Wales Public School.

[11] In March 2020, the Commission held a five-day public hearing with two days in Toronto

and three days in Peterborough. The Commission heard from the Respondent, the Applicant, and

248 interveners.

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[12] In support of its request to commence pelleting operations in Peterborough, the

Respondent submitted an environmental risk assessment [ERA] to the Commission. This ERA

determined that both the estimated emissions and associated risks of consolidating the operations

of the Peterborough and Toronto facilities at the Peterborough facility would be low. The ERA

showed that the maximum estimated annual effective dose at the Peterborough facility if

pelleting operations were to be transferred would remain below the public annual dose limit of 1

mSv/y: Licence Decision at para 262.

III.

Decision under Review

[13] In its Licence Decision dated December 18, 2020, the Commission renewed the

Respondent’s licence for a period of ten years pursuant to s 24 of the NSCA and severed the

licence into two separate facility-specific licences for the Respondent’s Toronto and

Peterborough facilities. The renewed facility-specific licences, FFL-3621.00/2030 for the

Toronto facility [Toronto Licence] and FFL-3620.00/2030 for the Peterborough facility

[Peterborough Licence], were validated from January 1, 2021 until December 31, 2030. The

Licence Decision totals 486 paragraphs and addresses several topics that are not in contention in

these proceedings.

[14] Central to this case is the decision of the Commission, by a majority of four-to-one, to

authorize the Respondent to produce uranium dioxide fuel pellets at its Peterborough, Ontario

facility, subject to three licence conditions, or “hold points” specific to the Peterborough

Licence:

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 Licence Condition 15.1 requires the Respondent to submit and implement an

updated environmental monitoring program at the Peterborough facility prior

to the commencement of fuel pellet production: Licence Decision at para 470.

 Licence Condition 15.2 requires the Respondent to submit a final

commissioning report related to production of fuel pellets that is acceptable to

the Commission, prior to the commencement of commercial fuel pellet

production at the Peterborough facility: Licence Decision at para 471.

 Licence Condition 15.3 stipulates that the production of fuel pellets shall be

conducted at either the Toronto facility or at the Peterborough facility, but not

at both facilities: Licence Decision at para 472.

[15] One dissenting Commission Member, Dr. S. Demeter, held that the Respondent’s request

to conduct commercial uranium dioxide fuel pelleting operations at the Peterborough facility

should be denied, and that pelleting operations should remain only in Toronto.

[16] All five members of the Commission agreed that if the Respondent transferred its

pelleting operations to Peterborough, “the health and safety of persons and of the environment

would remain adequately protected as emission levels would remain low”: Licence Decision at

para 443. The Commission also found that the Respondent’s Licence Application included

information that was required by the Class I Nuclear Facilities Regulations, SOR/2000-204

[Class I Regulations]: Licence Decision at paras 45, 59-60, 71, 90, 114, 128, 169, 186, 304, 307,

315, 324, 332, 399, 412, 424.

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[17] The Commission majority held that the Respondent is qualified pursuant to s 24(4) of the

NSCA to conduct pelleting operations in Peterborough. Having found that the public effective

dose, the air uranium dioxide releases and the effluent uranium dioxide releases are and would

remain well below regulatory and licence limits, the Commission majority was satisfied that

pelleting operations would be adequately safe at either the Toronto or the Peterborough facility:

Licence Decision at para 444.

[18] The dissenting Commission Member did not express an opinion on the qualification of

the Respondent to conduct pelleting operations in Peterborough. Rather, the dissenting

Commission Member held that if the safety case can be met for either the Toronto or

Peterborough facility, the request to allow pelleting in the Peterborough facility needs to be

analyzed through the lenses of the “as low as reasonably achievable” [ALARA] principle, the

justification principle, the precautionary principle and the relative risk of pelleting in Toronto

versus Peterborough: Licence Decision at para 445. The majority and dissenting Commission

Member differed in their analyses of all of these considerations.

A. ALARA principle

[19] In his analysis of the ALARA principle, the dissenting Commission Member considered

social factors such as equity and social trust to conclude that the Respondent had not

demonstrated that moving the pelleting operations to Peterborough would be acceptable. As for

the factor of equity, the dissenting Commission Member held that the potential increases of

radiation doses and environmental releases to the public that would result from moving pelleting

operations to Peterborough are not justified based on the ALARA principle, in light of the

Page: 8

inequitable increased exposure to the vulnerable population given the proximity of the Prince of

Wales Public School. As for social trust, the dissenting Commission Member held that the

proximity of the school and the concerns from local residents are predominant factors for not

allowing pelleting in Peterborough.

[20] The Commission majority was satisfied that the Respondent would comply with the

ALARA principle and aim at minimizing radiation doses at the Toronto and Peterborough

facilities. In their view, the very low levels of environmental releases and doses to the public

would not have an impact on the health of persons and the environment, in accordance with s

24(4) of the NSCA.

[21] All members of the Commission were satisfied that the Respondent’s radiation protection

program satisfied the requirements of the ALARA principle.

B. Relative risk of conducting pelleting at one facility versus the other

[22] The dissenting Commission Member found that the Respondent failed to provide

adequate justification for a transfer of pelleting operations to the Peterborough facility.

[23] While the majority agreed with the dissenting Commission member that the transfer of

pelleting operations to Peterborough would increase the environmental emissions of uranium

dioxide and the resulting dose to the public in Peterborough, it reasoned that these doses would

be so negligible that they would have no health and safety impact to persons and the

Page: 9

environment, including to the most vulnerable population such as the students at the Prince of

Wales School.

C. Justification Principle

[24] The dissenting Commission Member relied on the 2007 Recommendations of the

International Commission on Radiological Protection (ICRP Publication 103, 2007) to conclude

that the Respondent failed to provide justification for overriding the need to protect the more

vulnerable population of Peterborough, and that it is therefore more justifiable to conduct

pelleting operations in Toronto than in Peterborough.

[25] The Commission majority held that the Respondent is entitled to determine how best to

conduct its business, and that the Commission’s role is to ensure the Respondent does so safely

in accordance with the NSCA and related regulations, which do not entrench the justification

principle. As such, it held that flexibility should be built into the licence in the eventuality that

the Respondent decides, for business reasons, to consolidate operations in Peterborough.

D. Precautionary Principle

[26] In the view of the dissenting Commission Member, even if it cannot be shown that there

would be “serious or irreversible damages” resulting from the transfer of pelleting operations, the

increase of radiation doses and uranium dioxide emissions at a site, which has an adjacent

vulnerable population, “is not acting in an abundance of precaution”.

Page: 10

[27] The Commission majority found that the precautionary principle would not be breached,

as there would not be serious or irreversible damages resulting from the transfer of pelleting

operations. The pelleting operations, the plant design and the estimated doses and environmental

releases are well characterized and would be conducted in only one facility.

IV.

Legislative Scheme

[28] The NSCA is the enabling statute of the Commission. The Commission is established

pursuant to s 8(1) of the NSCA and its objects are enumerated at s 9 of the NSCA.

Establishment of

Commission

Constitution de la

Commission

Establishment of Commission Constitution

8 (1) There is hereby

8 (1) Est constituée une

established a body corporate

to be known as the Canadian

Nuclear Safety Commission.

personne morale appelée la

Commission canadienne de

sûreté nucléaire.

Agent of Her Majesty

Mandataire de Sa Majesté

(2) The Commission is for all (2) La Commission est

its purposes an agent of Her

Majesty and may exercise its

powers only as an agent of

Her Majesty.

mandataire de Sa Majesté et

ne peut exercer ses

attributions qu’à ce titre.

Objects

Mission

Objects

Mission

9 The objects of the

9. La Commission a pour

Commission are

mission

(a) to regulate the

a) de réglementer le

development, production and

développement, la production

use of nuclear energy and the et l’utilisation de l’énergie

production, possession and nucléaire ainsi que la

Page: 11

use of nuclear substances,

prescribed equipment and

prescribed information in

order to

production, la possession et

l’utilisation des substances

nucléaires, de l’équipement

réglementé et des

renseignements réglementés

afin que :

(i) prevent

(i) le niveau de risque

inhérent à ces activités

tant pour la santé et la

sécurité des personnes

que pour

unreasonable risk, to

the environment and to

the health and safety of

persons, associated

with that development,

production, possession

or use,

l’environnement,

demeure acceptable,

(ii) prevent

(ii) le niveau de risque

inhérent à ces activités pour

la sécurité nationale

unreasonable risk to

national security

associated with that

development,

demeure acceptable,

production, possession

or use, and

(iii) achieve

(iii) ces activités soient

exercées en conformité

avec les mesures de

contrôle et les

obligations

internationales que le

Canada a assumées;

conformity with

measures of control

and international

obligations to which

Canada has agreed;

and

(b) to disseminate objective

scientific, technical and

regulatory information to the

public concerning the

b) d’informer objectivement

le public — sur les plans

scientifique ou technique ou

en ce qui concerne la

activities of the Commission

and the effects, on the

réglementation du domaine de

l’énergie nucléaire — sur ses

environment and on the health activités et sur les

and safety of persons, of the

development, production,

conséquences, pour la santé et

la sécurité des personnes et

possession and use referred to pour l’environnement, des

in paragraph (a).

activités mentionnées à

l’alinéa a).

Page: 12

[29] The Committee’s authority to issue licences is provided by s 24 of the NSCA. Subsection

24(4) of the NSCA provides the conditions under which the Commission may renew a licence

following receipt of an application if the criteria set out in paragraphs (a) and (b) are met.

Pursuant to s 24(5), the Commission is authorized to include in a licence “any term or condition

that the Commission considers necessary for the purposes of this Act.”

Licences

Licences et permis

Licences

Catégories

24 (1) The Commission may

establish classes of licences

authorizing the licensee to

carry on any activity

24 (1) La Commission peut

établir plusieurs catégories de

licences et de permis; chaque

licence ou permis autorise le

described in any of paragraphs titulaire à exercer celles des

26(a) to (f) that is specified in activités décrites aux alinéas

the licence for the period that 26a) à f) que la licence ou le

is specified in the licence.

permis mentionne, pendant la

durée qui y est également

mentionnée.

Application

Demande

(2) The Commission may

issue, renew, suspend in

whole or in part, amend,

(2) La Commission peut

délivrer, renouveler,

suspendre en tout ou en partie,

revoke or replace a licence, or modifier, révoquer ou

authorize its transfer, on

receipt of an application

remplacer une licence ou un

permis ou en autoriser le

transfert lorsqu’elle en reçoit

la demande en la forme

réglementaire, comportant les

renseignements et

(a) in the prescribed

form;

(b) containing the

prescribed information

and undertakings and

accompanied by the

prescribed documents;

and

engagements réglementaires

et accompagnée des pièces et

des droits réglementaires.

(c) accompanied by the

prescribed fee.

Page: 13

Refund of fees

Remboursement

(3) The Commission may,

under the prescribed

(3) Dans les cas

réglementaires, la

circumstances, refund all or

part of any fee referred to in

paragraph (2)(c).

Commission peut rembourser

la totalité ou une partie des

droits visés au paragraphe (2).

Conditions for issuance, etc.

Conditions préalables à la

délivrance

(4) No licence shall be issued, (4) La Commission ne délivre,

renewed, amended or replaced ne renouvelle, ne modifie ou

— and no authorization to

transfer one given — unless,

in the opinion of the

ne remplace une licence ou un

permis ou n’en autorise le

transfert que si elle est d’avis

Commission, the applicant or, que l’auteur de la demande

in the case of an application ou, s’il s’agit d’une demande

for an authorization to transfer d’autorisation de transfert, le

the licence, the transferee

cessionnaire, à la fois :

(a) is qualified to carry

on the activity that the

licence will authorize

the licensee to carry on;

and

a) est compétent pour

exercer les activités

visées par la licence ou le

permis;

(b) will, in carrying on

that activity, make

b) prendra, dans le cadre

de ces activités, les

mesures voulues pour

préserver la santé et la

sécurité des personnes,

pour protéger

l’environnement, pour

maintenir la sécurité

nationale et pour

adequate provision for

the protection of the

environment, the health

and safety of persons

and the maintenance of

national security and

measures required to

implement international

obligations to which

Canada has agreed.

respecter les obligations

internationales que le

Canada a assumées.

Terms and conditions of

licences

Conditions des licences et des

permis

(5) A licence may contain any (5) Les licences et les permis

term or condition that the

Commission considers

necessary for the purposes of

peuvent être assortis des

conditions que la Commission

estime nécessaires à

Page: 14

this Act, including a condition l’application de la présente

that the applicant provide a

financial guarantee in a form

that is acceptable to the

Commission.

loi, notamment le versement

d’une garantie financière sous

une forme que la Commission

juge acceptable.

Application of proceeds of

financial guarantee

Affectation du produit de la

garantie financière

(6) The Commission may

authorize the application of

the proceeds of any financial

guarantee referred to in

(6) La Commission peut

autoriser l’affectation du

produit de la garantie

financière fournie en

subsection (5) in such manner conformité avec le paragraphe

as it considers appropriate for (5) de la façon qu’elle estime

the purposes of this Act.

indiquée pour l’application de

la présente loi.

Refund

Remboursement

(7) The Commission shall

(7) La Commission rembourse

grant to any person who

à la personne qui a fourni la

provided a financial guarantee garantie la partie non utilisée

under subsection (5) a refund de celle-ci; le cas échéant, elle

of any of the proceeds of the

guarantee that have not been

spent and may give the

peut ajouter les intérêts

calculés au taux réglementaire

sur le montant du

person, in addition to the

refund, interest at the

prescribed rate in respect of

each month or fraction of a

month between the time the

financial guarantee is

remboursement, pour chaque

mois ou partie de mois entre

le moment où la garantie a été

donnée et celui du

remboursement.

provided and the time the

refund is granted, calculated

on the amount of the refund.

[30] The requirements for licence applications of s 24(4) are supplemented by several

regulations made under the NSCA: the General Nuclear Safety and Control Regulations,

SOR/2000-202 [General Regulations]; the Radiation Protection Regulations, SOR/2000-203;

and the Class I Regulations.

Page: 15

[31] Subsection 3(1) of the General Regulations sets out the mandatory information that must

be provided in all licence applications, among them the requirement under paragraph 3(1)(e) to

provide information about “the proposed measures to ensure compliance with the Radiation

Protection Regulations.”

Licences

Permis

General Application

Requirements

Dispositions générales

3 (1) An application for a

licence shall contain the

following information:

3 (1) La demande de permis

comprend les renseignements

suivants :

(a) the applicant’s

name and business

address;

a) le nom et l’adresse

d’affaires du demandeur;

(b) the activity to be

licensed and its

purpose;

b) la nature et l’objet de

l’activité visée par la

demande;

(c) the name, maximum

quantity and form of any

nuclear substance to be

encompassed by the

licence;

c) le nom, la quantité

maximale et la forme des

substances nucléaires

visées par la demande;

(d) a description of any

nuclear facility, prescribed

equipment or prescribed

information to be

encompassed by the

licence;

d) une description de

l’installation nucléaire, de

l’équipement réglementé

ou des renseignements

réglementés visés par la

demande;

(e) the proposed

e) les mesures proposées

pour assurer la conformité

au Règlement sur la

measures to ensure

compliance with the

Radiation Protection

Regulations, the

Nuclear Security

Regulations and the

Packaging and

radioprotection, au

Règlement sur la sécurité

nucléaire et au Règlement

sur l’emballage et le

transport des substances

nucléaires (2015);

Transport of Nuclear

Page: 16

Substances

Regulations, 2015;

(f) any proposed action

level for the purpose of

section 6 of the

Radiation Protection

Regulations;

f) tout seuil

d’intervention proposé

pour l’application de

l’article 6 du Règlement

sur la radioprotection;

(g) the proposed

g) les mesures proposées

pour contrôler l’accès aux

lieux où se déroulera

l’activité visée par la

demande et se trouvent

les substances nucléaires,

l’équipement réglementé

ou les renseignements

réglementés;

measures to control

access to the site of the

activity to be licensed

and the nuclear

substance, prescribed

equipment or prescribed

information;

(h) the proposed

h) les mesures proposées

pour éviter l’utilisation, la

possession ou

l’enlèvement illégaux ou

la perte des substances

nucléaires, de

l’équipement réglementé

ou des renseignements

réglementés;

measures to prevent

loss or illegal use,

possession or removal

of the nuclear

substance, prescribed

equipment or prescribed

information;

(i) a description and the

results of any test,

analysis or calculation

performed to

i) une description et les

résultats des épreuves,

analyses ou calculs

effectués pour corroborer

les renseignements

substantiate the

information included in

the application;

compris dans la demande;

(j) the name, quantity,

form, origin and volume

of any radioactive waste

or hazardous waste that

may result from the

activity to be licensed,

including waste that

may be stored,

j) le nom, la quantité, la

forme, l’origine et le

volume des déchets

radioactifs ou des

déchets dangereux que

l’activité visée par la

demande peut produire,

y compris les déchets qui

peuvent être stockés

provisoirement ou en

permanence, gérés,

managed, processed or

disposed of at the site of

the activity to be

Page: 17

licensed, and the

traités, évacués ou

proposed method for

managing and disposing

of that waste;

éliminés sur les lieux de

l’activité, et la méthode

proposée pour les gérer

et les stocker en

permanence, les évacuer

ou les éliminer;

(k) the applicant’s

organizational

management structure

insofar as it may bear on

the applicant’s

k) la structure de gestion

du demandeur dans la

mesure où elle peut

influer sur l’observation

de la Loi et de ses

compliance with the Act

and the regulations made

under the Act, including

the internal allocation of

functions,

règlements, y compris la

répartition interne des

fonctions, des

responsabilités et des

pouvoirs;

responsibilities and

authority;

(l) a description of any

proposed financial

guarantee relating to the

activity to be licensed;

and

l) une description de la

garantie financière

proposée pour l’activité

visée par la demande;

(m) any other

m) tout autre

information required by

the Act or the

renseignement exigé par

la Loi ou ses règlements

relativement à l’activité,

aux substances nucléaires,

aux installations

nucléaires, à l’équipement

réglementé ou aux

renseignements

regulations made under

the Act for the activity

to be licensed and the

nuclear substance,

nuclear facility,

prescribed equipment or

prescribed information

to be encompassed by

the licence.

réglementés visés par la

demande.

(n) [Repealed, SOR/2008-

n) [Abrogé, DORS/2008-

119, s. 2]

119, art. 2]

(1.1) The Commission or a

designated officer authorized

under paragraph 37(2)(c) of

(1.1) La Commission ou un

fonctionnaire désigné autorisé

en vertu de l’alinéa 37(2)c) de

the Act, may require any other la Loi peut demander tout

Page: 18

information that is necessary

to enable the Commission or

the designated officer to

determine whether the

applicant

autre renseignement

nécessaire pour lui permettre

d’établir si le demandeur :

(a) is qualified to

carry on the activity to

be licensed; or

a) est compétent pour

exercer l’activité visée

par la demande;

(b) will, in carrying on

that activity, make

adequate provision for the

protection of the

environment, the health

and safety of persons and

the maintenance of

national security and

measures required to

implement international

obligations to which

Canada has agreed.

b) prendra, dans le cadre de

l’activité, les mesures

voulues pour préserver la

santé et la sécurité des

personnes, protéger

l’environnement, maintenir

la sécurité nationale et

respecter les obligations

internationales que le

Canada a assumées.

(2) Subsection (1) does not

apply in respect of an

application for a licence to

(2) Le paragraphe (1) ne

s’applique pas à la demande

de permis d’importation ou

import or export for which the d’exportation pour laquelle les

information requirements are

prescribed by the Nuclear

renseignements exigés sont

prévus par le Règlement sur le

Non-Proliferation Import and contrôle de l’importation et de

Export Control Regulations, l’exportation aux fins de la

or in respect of an application non-prolifération nucléaire, ou

for a licence to transport while à la demande de permis de

in transit for which the

transit pour laquelle les

information requirements are

prescribed by the Packaging

and Transport of Nuclear

renseignements exigés sont

prévus par le Règlement sur

l’emballage et le transport des

Substances Regulations, 2015. substances nucléaires (2015).

[32] Paragraph 4(a) of the Radiation Protection Regulations provides that licensees must

implement a radiation protection program that keeps the radiation dose absorbed by members of

Page: 19

the public “as low as reasonably achievable [ALARA], taking into account social and economic

factors.”

Radiation Protection

Program

Programme de

radioprotection

4 Every licensee must

4 Le titulaire de permis met en

implement a radiation

oeuvre un programme de

protection program and must, radioprotection et, dans le

as part of that program,

cadre de ce programme :

(a) keep the effective

dose and equivalent

dose received by and

committed to persons as

low as reasonably

achievable, taking into

account social and

economic factors,

through the

a) maintient la dose

efficace et la dose

équivalente qui sont

reçues par la personne, et

engagées à son égard, au

niveau le plus bas qu’il

soit raisonnablement

possible d’atteindre,

compte tenu des facteurs

économiques et sociaux,

par :

implementation of

(i) management

control over work

practices,

(i) la maîtrise des

méthodes de travail par

la direction,

(ii) personnel

qualification and

training,

(ii) les qualifications et

la formation du

personnel,

(iii) control of

(iii) le contrôle de

l’exposition du

personnel et du public

au rayonnement,

occupational and

public exposure to

radiation, and

(iv) planning for

unusual situations;

and

(iv) la préparation aux

situations inhabituelles;

(b) ascertain the

quantity and

concentration of any

nuclear substance

released as a result of

the licensed activity

b) détermine la quantité et

la concentration des

substances nucléaires

rejetées par suite de

l’exercice de l’activité

autorisée :

Page: 20

(i) by direct

(i) par mesure directe

measurement as a

result of monitoring,

or

résultant du contrôle,

(ii) if the time and

resources required

for direct

measurement as a

result of monitoring

outweigh the

(ii) par évaluation,

lorsque le temps et les

ressources exigés pour

une mesure directe

sont trop importants

par rapport à son

utilité.

usefulness of

ascertaining the

quantity and

concentration using

that method, by

estimating them.

[33] The Class I Regulations set out information to be included in Class I nuclear facility

licence applications. Section 3 sets out general, mandatory application requirements for all Class

I nuclear facilities, including descriptions of the site and structures, plans detailing the location

and systems of the nuclear facility, the proposed environmental protection policies and

procedures, and the proposed effluent and environmental monitoring programs.

Licence Applications

Demandes de permis

General Requirements

Dispositions générales

3 An application for a licence 3 La demande de permis

in respect of a Class I nuclear visant une installation

facility, other than a licence to nucléaire de catégorie I, autre

abandon, shall contain the

following information in

addition to the information

required by section 3 of the

General Nuclear Safety and

Control Regulations:

qu'un permis d'abandon,

comprend les renseignements

suivants, outre ceux exigés à

l'article 3 du Règlement

général sur la sûreté et la

réglementation nucléaires :

(a) a description of the

site of the activity to be

licensed, including the

a) une description de

l'emplacement de

l'activité visée par la

Page: 21

location of any

exclusion zone and any

structures within that

zone;

demande, y compris

l'emplacement de toute

zone d'exclusion et de

toute structure s'y

trouvant;

(b) plans showing the

location, perimeter, areas,

structures and systems of

the nuclear facility;

b) des plans indiquant

l'emplacement, le

périmètre, les aires, les

ouvrages et les systèmes

de l'installation nucléaire;

(c) evidence that the

applicant is the owner of

the site or has authority

from the owner of the site

to carry on the activity to

be licensed;

c) la preuve que le

demandeur est le

propriétaire de

l'emplacement ou qu'il est

mandaté par celui-ci pour

exercer l'activité visée;

(d) the proposed

management system for

the activity to be

licensed, including

measures to promote

and support safety

culture;

d) le système de gestion

proposé pour l’activité

visée, y compris les

mesures qui seront prises

pour promouvoir une

culture de sûreté et

l’appuyer;

(d.1) the proposed

d.1) le programme de

performance humaine

proposé pour l’activité

visée, y compris les

mesures qui seront prises

pour assurer l’aptitude au

travail des travailleurs;

human performance

program for the activity

to be licensed, including

measures to ensure

workers’ fitness for duty.

(e) the name, form,

characteristics and

quantity of any

hazardous substances

that may be on the site

while the activity to be

licensed is carried on;

e) le nom, la forme, les

caractéristiques et la

quantité des substances

dangereuses qui

pourraient se trouver sur

l'emplacement pendant le

déroulement de l'activité

visée;

(f) the proposed worker

health and safety policies

and procedures;

f) les politiques et

procédures proposées

relativement à la santé et

Page: 22

à la sécurité des

travailleurs;

(g) the proposed

environmental

protection policies and

procedures;

g) les politiques et

procédures proposées

relativement à la

protection de

l'environnement;

(h) the proposed effluent

and environmental

monitoring programs;

h) les programmes

proposés pour la

surveillance de

l'environnement et des

effluents;

(i) if the application is in

respect of a nuclear

facility referred to in

paragraph 2(b) of the

Nuclear Security

i) lorsque la demande

vise une installation

nucléaire mentionnée à

l'alinéa 2b) du Règlement

sur la sécurité nucléaire,

les renseignements

Regulations, the

information required by

section 3 of those

Regulations;

exigés à l'article 3 de ce

règlement;

(j) the proposed

j) le programme destiné

à informer les personnes

qui résident à proximité

de l'emplacement de la

nature et des

program to inform

persons living in the

vicinity of the site of

the general nature and

characteristics of the

anticipated effects on

the environment and the

health and safety of

persons that may result

from the activity to be

licensed; and

caractéristiques

générales des effets

prévus de l'activité visée

sur l'environnement ainsi

que sur la santé et la

sécurité des personnes;

(k) the proposed plan for

the decommissioning of

the nuclear facility or of

the site.

k) le plan proposé pour

le déclassement de

l'installation nucléaire ou

de l'emplacement.

[34] Section 6 of the Class I Regulations sets out additional mandatory application

requirements for a licence to operate a Class I nuclear facility, including a description of

Page: 23

operating equipment and its design; a final safety analysis report identifying hazards and risk

mitigation controls; a review of effects to the environment, health and safety of persons; the

proposed emission release points; and the proposed methods of controlling the off-site impacts of

nuclear substances and hazardous substances to the environment.

Licence to Operate

Permis d'exploitation

6 An application for a licence 6 La demande de permis pour

to operate a Class I nuclear

facility shall contain the

following information in

addition to the information

required by section 3:

exploiter une installation

nucléaire de catégorie I

comprend les renseignements

suivants, outre ceux exigés à

l'article 3 :

(a) a description of the

structures at the

nuclear facility,

including their design

and their design

operating conditions;

a) une description des

ouvrages de l'installation

nucléaire, y compris leur

conception et leurs

conditions nominales

d'exploitation;

(b) a description of the

systems and equipment

at the nuclear facility,

including their design

and their design

b) une description des

systèmes et de

l'équipement de

l'installation nucléaire,

y compris leur

operating conditions;

conception et leurs

conditions nominales de

fonctionnement;

(c) a final safety

analysis report

demonstrating the

adequacy of the design

of the nuclear facility;

c) un rapport final

d'analyse de la sûreté

démontrant que la

conception de

l'installation nucléaire

est adéquate;

(d) the proposed

d) les mesures,

measures, policies,

methods and procedures

for operating and

politiques, méthodes et

procédures proposées

pour l'exploitation et

Page: 24

maintaining the nuclear

facility;

l'entretien de

l'installation nucléaire;

(e) the proposed

procedures for

handling, storing,

loading and

transporting nuclear

substances and

e) les procédures

proposées pour la

manipulation, le

stockage provisoire, le

chargement et le

transport des

hazardous substances;

substances nucléaires

et des substances

dangereuses;

(f) the proposed

f) les mesures

measures to facilitate

Canada's compliance

with any applicable

safeguards agreement;

proposées pour aider le

Canada à respecter tout

accord relatif aux

garanties qui

s'applique;

(g) the proposed

g) le programme de

mise en service

proposé pour les

systèmes et

l'équipement de

l'installation nucléaire;

commissioning program

for the systems and

equipment that will be

used at the nuclear

facility;

(h) the effects on the

environment and the

health and safety of

persons that may result

from the operation and

decommissioning of the

nuclear facility, and the

measures that will be

taken to prevent or

h) les effets sur

l'environnement ainsi

que sur la santé et la

sécurité des personnes

que peuvent avoir

l'exploitation et le

déclassement de

l'installation nucléaire,

de même que les

mitigate those effects;

mesures qui seront

prises pour éviter ou

atténuer ces effets;

(i) the proposed location

of points of release, the

proposed maximum

quantities and

i) l'emplacement

proposé des points de

rejet, les quantités et

les concentrations

concentrations, and the

anticipated volume and

flow rate of releases of

maximales proposées,

ainsi que le volume et

le débit d'écoulement

Page: 25

nuclear substances and

hazardous substances into

the environment, including

their physical, chemical

and radiological

prévus des rejets de

substances nucléaires

et de substances

dangereuses dans

l'environnement, y

compris leurs

characteristics;

caractéristiques

physiques, chimiques

et radiologiques;

(j) the proposed

j) les mesures

measures to control

releases of nuclear

substances and

hazardous substances

into the environment;

proposées pour

contrôler les rejets de

substances nucléaires

et de substances

dangereuses dans

l'environnement;

(k) the proposed

k) les mesures

measures to prevent or

mitigate the effects of

accidental releases of

nuclear substances and

hazardous substances

on the environment, the

health and safety of

persons and the

proposées pour éviter

ou atténuer les effets

que les rejets

accidentels de

substances nucléaires et

de substances

dangereuses peuvent

avoir sur

maintenance of national

security, including

measures to

l’environnement, sur la

santé et la sécurité des

personnes ainsi que sur

le maintien de la

sécurité nationale, y

compris les mesures

visant à :

(i) assist off-site

authorities in

planning and

preparing to limit the

effects of an

accidental release,

(i) aider les autorités

extérieures à effectuer

la planification et la

préparation en vue de

limiter les effets d'un

rejet accidentel,

(ii) notify off-site

authorities of an

accidental release or

the imminence of an

accidental release,

(ii) aviser les autorités

extérieures d'un rejet

accidentel ou de

Page: 26

l'imminence d'un tel

rejet,

(iii) report

information to off-

site authorities

during and after an

accidental release,

(iii) tenir les autorités

extérieures informées

pendant et après un

rejet accidentel,

(iv) assist off-site

authorities in dealing

with the effects of an

accidental release,

and

(iv) aider les autorités

extérieures à remédier

aux effets d'un rejet

accidentel,

(v) test the

(v) mettre à l'épreuve

l'application des

mesures pour éviter

ou atténuer les effets

d'un rejet accidentel;

implementation of

the measures to

prevent or mitigate

the effects of an

accidental release;

(l) the proposed

l) les mesures proposées

pour empêcher tout acte

ou tentative de sabotage

à l'installation nucléaire,

de même que les

measures to prevent

acts of sabotage or

attempted sabotage at

the nuclear facility,

including measures to

alert the licensee to

such acts;

mesures pour alerter le

titulaire de permis;

(m) the proposed

responsibilities of and

qualification

requirements and

training program for

workers, including the

procedures for the

requalification of

workers; and

m) les responsabilités, le

programme de

formation, les exigences

de qualification et les

mesures de

requalification des

travailleurs;

(n) the results that have

been achieved in

implementing the

n) les résultats obtenus

grâce à l'application du

programme de

program for recruiting,

training and qualifying

workers in respect of

the operation and

recrutement, de

formation et de

qualification des

travailleurs liés à

Page: 27

maintenance of the

nuclear facility.

l'exploitation et à

l'entretien de

l'installation nucléaire.

[35] The Regulatory Documents of the Commission contain guidelines relating to the

fulfillment of the requirements set out in the NSCA and its regulations. Regulatory document

REGDOC-3.5.3, Regulatory Fundamentals outlines the CNSC’s regulatory philosophy and

approach to applying the NSCA. Its s 5.8 refers to Canada’s international obligations.

5.8 International obligations 5.8 Obligations

internationales

The CNSC participates in

international fora to provide

La CCSN participe à des

forums internationaux en vue

global nuclear leadership and d’exercer un leadership

to benefit from international mondial dans le domaine

experience and best practices. nucléaire et de tirer profit de

It also participates in l’expérience et des pratiques

undertakings implemented by exemplaires internationales.

the International Atomic

Energy Agency (IAEA) (for

La CCSN participe également

à des activités organisées par

example, IAEA peer reviews), l’Agence internationale de

the ICRP and other l’énergie atomique (AIEA)

international organizations, as [comme les examens par les

well as in activities under

certain treaties such as the

Convention on Nuclear

Safety.

pairs de l’AIEA], la CIPR et

d’autres organisations

internationales, ainsi qu’à des

activités prévues dans le cadre

de certains traités, comme la

Convention sur la sûreté

nucléaire.

These international activities

Ces activités internationales

help inform the CNSC’s

permettent d’orienter les

decision-making processes to: processus décisionnels de la

CCSN et l’aident :

• understand and

compare various ways

of evaluating and

mitigating risks

• à comprendre et à

comparer différentes

façons d’évaluer et

d’atténuer les risques

Page: 28

• share research and

operational experience

• à partager son

expérience en matière

de recherche et

d’exploitation

[36] Regulatory document REGDOC-2.9.1, Environmental Principles, Assessments and

Protection Measures, describes the Commission’s principles for environmental protection, the

scope and responsibilities pertaining to environmental review, and the Committee’s requirements

and guidance to applicants and licensees for developing environmental protection measures.

Section 2.1 of REGDOC-2.9.1 provides that social and economic factors must be taken into

account when assessing conformity with the ALARA principle.

2.1 The CNSC’s guiding

principles for protection of

the environment

2.1 Principes directeurs de

la CCSN en matière de

protection de

l’environnement

The CNSC regulates nuclear

facilities and activities in

Canada to protect the

environment and the health

and safety of persons in a

La CCSN réglemente les

installations et les activités

nucléaires au Canada pour

protéger l’environnement

ainsi que pour préserver la

manner that is consistent with santé et la sécurité des

Canadian environmental

policies, acts and regulations

and with Canada’s

personnes, et elle le fait en

conformité avec les politiques,

lois et règlements canadiens

en matière d’environnement

ainsi qu’avec les obligations

internationales que le Canada

a assumées.

international obligations.

For each facility or activity

that has direct interactions

with the environment, the

Pour chaque installation ou

activité présentant des

interactions directes avec

CNSC must determine that the l’environnement, la CCSN

licensee or applicant has made doit déterminer que le

adequate provision for the

protection of the environment. permis a pris les mesures

The applicant or licensee’s voulues pour protéger

demandeur ou le titulaire de

Page: 29

licence application shall

demonstrate (through

performance assessments,

monitoring or other

assessments) that their

environmental protection

measures:

l’environnement. La demande

de permis du demandeur ou

du titulaire de permis doit

démontrer (au moyen

d’évaluations du rendement,

de surveillance ou d’autres

évaluations) que ses mesures

de protection de

l’environnement :

• are commensurate

with the level of

risk associated with

the activity

• correspondent au

niveau de risque

associé à l’activité

• recognize that

• reconnaissent les

incertitudes qui existent

sur le plan scientifique

et tiennent compte de

cette incertitude :

uncertainty exists in

science and account

for this uncertainty:

o by keeping all

releases to the

environment as

low as reasonably

achievable

o en maintenant tous

les rejets dans

l’environnement au

niveau le plus bas

qu’il soit

(ALARA), social

and economic

factors being

taken into account

for nuclear

raisonnablement

possible d’atteindre

(principe ALARA,

de l’anglais as low

as reasonably

substances

achievable),

compte tenu des

facteurs sociaux et

économiques pour

les substances

nucléaires

o through the

application of the

best available

technology and

techniques

o en appliquant le

principe des «

meilleures

techniques

existantes

economically

achievable

d’application

rentable »

(BATEA) for

(MTEAR) pour

Page: 30

hazardous

substances

les substances

dangereuses

• respect the

• respectent le principe de

prudence, le principe du

« pollueur‑payeur » et

les concepts de

precautionary

principle, the

“polluter pays”

principle, and the

concepts of pollution

prevention,

prévention de la

pollution, du

développement durable

et de la gestion

sustainable

development and

adaptive

adaptative

management

• are assessed against

performance indicators

and targets that are

• sont évaluées par

rapport à des

indicateurs de

rendement et des

objectifs fondés sur

des données

based on sound science

scientifiques

rigoureuses

The following sections of this Les sections suivantes de ce

regulatory document provide

information on how to meet

these principles. The CNSC

assesses proposed alternative

approaches and takes into

account the views and

proposals of the licensee

concerning their individual

situations.

document d’application de la

réglementation fournissent des

renseignements sur la façon

de satisfaire à ces principes.

La CCSN évalue les autres

approches proposées et tient

compte des points de vue et

des propositions du titulaire

de permis concernant sa

situation personnelle.

V.

Issues and Standard of Review

A. Issues

Page: 31

[37] This application raises the following issue: Was it reasonable for the Commission to

authorize pelleting operations at the Peterborough facility subject to Licence Conditions 15.1,

15.2, and 15.3?

[38] As a preliminary matter, the Respondent submitted that the Applicant’s argument

regarding alleged non-compliance with the Class I Regulations was raised for the first time on

judicial review, as opposed to before the Commission. The Court heard submissions on this

question at the outset of the hearing and agreed with the Applicant in brief oral reasons that

compliance with the Class I Regulations was not a new issue. The question of whether the

Applicant raised this in its presentations and closing recommendations to the Commission is not

determinative, as the Commission considered the issue in its decision, and found that the

Respondent’s Licence Application included information that was required by the Class I

Regulations. The Applicant was accordingly permitted to address the issue in its submissions.

[39] In the analysis that follows, the question at issue will be assessed by means of the three

following sub-questions:

A. Did the Commission have the authority to attach the Licence Conditions?

B. Did the Respondent’s Application omit mandatory information, without which the

Commission lacked a sufficient basis on which to make a reasonable decision?

C. Did the Commission fail to properly consider the ALARA principle, the justification

principle, or the precautionary principle?

Page: 32

B. Standard of Review

[40] As agreed upon by the parties, the standard of reasonableness applies to the present

application. None of the situations that allow for a departure from the presumption of the

reasonableness standard are applicable in this case: Canada (Minister of Citizenship and

Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 17, 25; Canada Post Corporation v

Canadian Union of Postal Workers, 2019 SCC 67 at para 27.

[41] A reasonable decision is “based on an internally coherent and rational chain of analysis”

and is “justified in relation to the facts and law that constrain the decision maker”: Vavilov at

para 85. It must encompass the characteristics of a reasonable decision, namely, justification,

transparency and intelligibility: Vavilov at para 99, citing Dunsmuir v New Brunswick, 2008 SCC

9 at paras 47 and 74; Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at para 13.

The reviewing court must adopt a deferential approach and intervene only “where it is truly

necessary to do so in order to safeguard the legality, rationality and fairness of the administrative

process”: Vavilov at para 13.

[42] The guidance of the Federal Court of Appeal in Greenpeace Canada v Canada (Attorney

General), 2016 FCA 114 [Greenpeace FCA], as concerns the application of the reasonableness

standard to decisions of the Commission, is directly relevant to the case at bar:

[60] Where, as here, the issues at play involve detailed factual

findings and discretionary decisions within the heartland of the

tribunal’s expertise, the reasonableness standard requires that

considerable deference be given to the tribunal’s determinations.

This is particularly so when the issues under review concern

nuclear safety and the tribunal is the nuclear safety regulator. In

Page: 33

short, the CNSC is much better placed than a reviewing court to

factually assess and determine what types of possible accidents are

likely to occur at a nuclear power plant and how to conduct the

assessment of the environmental impacts of potential accidents. It

is therefore inappropriate for a reviewing court to second-guess

these determinations through a detailed re-examination of the

evidence as the appellants would have us do in the instant case.

VI.

Analysis

A. Was it reasonable for the Commission to authorize pelleting operations at the

Peterborough facility subject to Licence Conditions 15.1, 15.2, and 15.3?

(1) Did the Commission have the authority to attach the Licence Conditions?

[43] It appears from the Decision (at para 435) that the reason provided by the Respondent to

the Commission for requesting license approval for pelleting in Peterborough was that the

company wanted some assurance that it was feasible before exploring the option. No decision

had apparently been made regarding that option.

[44] The Applicant submits that it was unlawful for the Commission to issue Licence

Conditions that are not consistent with the regulatory purpose of licensing: ATCO Gas &

Pipelines Ltd. v Alberta (Energy and Utilities Board), 2006 SCC 4 at paras 49-50 [ATCO].

[45] In ATCO, at para 50, the Supreme Court emphasized that the grant of authority to

exercise a discretion does not confer unlimited discretion to the decision-maker. The discretion

must be exercised within the confines of the statutory regime and principles generally applicable

to regulatory matters.

Page: 34

[46] The Applicant argues that it was unreasonable for the Commission to qualify the Licence

Conditions as “hold points” for which the Respondent has to provide proof before proceeding

with pelleting, as in so doing, the Commission has deferred a decision it was required to make

within a public hearing and under its enabling statute.

[47] The terminology of “hold points” to which the Applicant refers is not found in the

Licence Decision, but rather in the transcript of the March 4, 2020 public hearing which reads as

follows:

Now everything, all requirements has to be met and then we will

provide you with either a hold point by which the applicant has to

provide proof to the Commission and then we will put the process

in place according to the rule of procedures.

[48] Reliance on “hold points”, the Applicant contends, relieves the Respondent from

mandatory application obligations, as the information the Commission would later receive to

determine whether hold points are fulfilled is the information that was legally required for the

licence application itself. The Applicant submits that this approach defers key elements of

analysis to a later date and thus renders the decision-making process meaningless.

[49] The imposition of hold points, rather than conditions precedent to the licence, is

inconsistent with the regulatory scheme, according to the Applicant, as the General Regulations

and Class I Regulations set out the information which is required in an application prior to a

licence being granted, and not after the granting of a licence.

Page: 35

[50] The Applicants rely on Morton v Canada (Fisheries and Oceans), 2015 FC 575 at para

98 [Morton] to assert that licence conditions cannot derogate from or be inconsistent with the

regulatory scheme.

[51] The Commission’s use of hold points also denies the public the opportunity to be heard,

thus violating s 40 of the NSCA, the Applicant argues. By not providing information specific to

pelleting at the Peterborough facility, to which interveners ought to have been able to respond in

the licensing process, public participation was denied. The Applicant submits that this approach

lacked transparency and failed to meet the statutory purpose under paragraph 9(b) of the NSCA

of disseminating information to the public.

[52] The Commission’s rationale for attaching the hold points to the licence – the fact that the

Respondent had sought flexibility in its licence in case it decided to consolidate operations in

Peterborough for business reasons – does not reflect the purposes of the statute nor the

obligations of the Commission set out by ss 3 and 24(4) of the NSCA, in the Applicant’s view.

[53] The Respondent submits that the imposition of “hold points” was consistent with the

Commission’s regulatory practice, as evidenced by regulatory document REGDOC-3.5.1,

Licensing Process for Class I Nuclear Facilities and Uranium Mines and Mills (Version 2) at p 9,

which notes that the “first licence to operate [a Class I] facility is typically issued with conditions

(hold points).”

Page: 36

[54] Moreover, as demonstrated by three recent decisions dating from 2015 to 2018, involving

Ontario Power Generation, the Saskatchewan Research Council and Bruce Power, the imposition

of hold points was not an unusual exercise of the Commission’s regulatory authority. In each of

these decisions, the Commission imposed licence conditions in the form of forward-looking hold

points rather than conditions precedent. The Court agrees with the Respondent that accepting the

Applicant’s position would result in regulatory uncertainty and confusion, as it would cast doubt

over the Commission’s jurisdiction to supervise and monitor these facilities and existing hold

point arrangements.

[55] In the Court’s view, Morton is inapplicable to the present matter as it pertained to a

licence condition issued pursuant to the Fishery General Regulations, SOR/93-53, which contain

no equivalent to s 24(5) of the NSCA. While s 24(5) of the NSCA provides that the Commission

can attach any term or condition considered necessary, s 22(1) of the Fishery General

Regulations set forth the opposite instruction in providing that “the Minister may specify in a

licence any condition that is not inconsistent with these Regulations”: Morton at para 8.

[56] As a creature of statute, the Commission has only such legal authority as the legislature

has expressly or by implication conferred on it. Judicial interpretation of such authority must

endeavour within the scope of the legislation to give effect to its provisions so that the

administrative agencies created may function effectively, as the legislature intended: Maple

Lodge Farms v Government of Canada, [1982] 2 SCR 2 at 7; Vavilov at para 308.

Page: 37

[57]

Where the legislature chooses to grant authority to a decision maker using broad, open-

ended or highly qualitative language, with no right of appeal to a court, then the legislature’s

intention that the decision maker have greater flexibility in interpreting its enabling statute

should be given effect: Vavilov at paras 68, 110.

[68] Reasonableness review does not give administrative

decision makers free rein in interpreting their enabling statutes, and

therefore does not give them licence to enlarge their powers

beyond what the legislature intended. Instead, it confirms that the

governing statutory scheme will always operate as a constraint on

administrative decision makers and as a limit on their

authority. Even where the reasonableness standard is applied in

reviewing a decision maker’s interpretation of its authority, precise

or narrow statutory language will necessarily limit the number

of reasonable interpretations open to the decision maker —

perhaps limiting it one. Conversely, where the legislature has

afforded a decision maker broad powers in general terms — and

has provided no right of appeal to a court — the legislature’s

intention that the decision maker have greater leeway in

interpreting its enabling statute should be given effect. […]

[110] Whether an interpretation is justified will depend on the

context, including the language chosen by the legislature in

describing the limits and contours of the decision maker’s

authority. If a legislature wishes to precisely circumscribe an

administrative decision maker’s power in some respect, it can do

so by using precise and narrow language and delineating the power

in detail, thereby tightly constraining the decision maker’s ability

to interpret the provision. Conversely, where the legislature

chooses to use broad, open-ended or highly qualitative language —

for example, “in the public interest” — it clearly contemplates that

the decision maker is to have greater flexibility in interpreting the

meaning of such language. […]

[Emphasis added]

[58] Parliament did precisely this in providing that the Commission may attach to a licence

“any term or condition that the Commission considers necessary for the purposes of this Act,”

pursuant to s 24(5) of the NSCA. This is but one of the several “broad powers” the legislature has

Page: 38

conferred on the Commission with regard to granting licences, pursuant to ss 24 and 25 of the

NSCA: Athabasca Regional Government v Canada (Attorney General), 2010 FC 948 at para 236.

Thus, the intention was that the Commission is to have significant leeway in interpreting the

meaning of s 24(5) of the NSCA.

[59] The broad and open language of s 24(5) is, in the Court’s view, a complete response to

the question of whether the license conditions were lawful, as the enactment provides the

Commission with statutory authority to issue licence conditions in the form of hold points that

must be satisfied prospectively. The attachment of conditions in the form of hold points is not a

deferral of a decision, but rather an integral part of the decision that the Commission made. Thus,

the Commission’s decision was fully compliant with its enabling statute.

[60] The Applicant’s submissions that the use of hold points denies the public the opportunity

to be heard and impedes the dissemination of information to the public in violation of ss 40 and

9(b) of the NSCA are premature, as the Respondent contends. The Commission has not yet made

a decision on whether to hold a public hearing regarding the Respondent’s satisfaction of the

hold points and the record does not support a finding that it will not do so. The Commission

ordered a public proceeding to occur not later than 2026 where the Respondent must present

“comprehensive mid-term updates on its licensed activities” to the Commission: Licence

Decision at paras 23, 480.

Page: 39

[61] As a general principle, the Court should avoid interfering with ongoing administrative

processes until after they are completed: Canada (Border Services Agency) v CB Powell Ltd,

2010 FCA 61 at para 31; Klos v Canada (Attorney General), 2021 FCA 238 at para 6.

[62] In the result, the Court is satisfied that it was reasonable and lawful for the Commission

to attach the Licence Conditions in the form of “hold points” to the Peterborough Licence.

B. Did the Respondent’s Application omit mandatory information, without which

the Commission lacked a sufficient basis on which to make a reasonable

decision?

[63] The Applicant submits that the Respondent failed to provide the following requisite

information in its Licence Application:

● Information about four of the fourteen Safety and Control Areas

(SCA) used by the Commission to assess compliance with regulatory

compliance, namely: (i) operating performance; (ii) safety analysis;

(iii) physical design; and (iv) environmental protection;

● Three categories of information required by the Class I Regulations

and the Radiation Protection Regulations, namely:

(i) information regarding its proposed environmental protection

policies for the Peterborough facility (as required by paragraph

3(g) of the Class I Regulations);

(ii) information regarding its proposed effluent and environmental

monitoring programs for the Peterborough facility (as required

by paragraph 3(h) of the Class I Regulations); and

(iii) information regarding the Peterborough facility’s design and

layout, emissions release points and environmental effects (as

required by section 6 of the Class I Regulations).

Page: 40

[64] Safety and control areas [SCAs] are the technical topics used by the Commission to

assess, review, verify and report on regulatory requirements and performance across all regulated

facilities and activities. There are fourteen distinct SCAs, among them operative performance,

safety analysis, physical design, and environmental protection.

[65] The Applicant submits that the Commission authorized pelleting at the Peterborough

facility despite finding that the Respondent’s licence application did not include requisite

information about four SCAs: operative performance, safety analysis, physical design, and

environmental protection. In the Applicant’s view, this is unlawful, as it is contrary to s 24(4) of

the NSCA, which requires the Commission to determine whether the licensee has made adequate

provision for the protection of the environment and the health and safety of persons.

[66] Information pertaining to the SCA of operating performance was omitted, as the

Respondent had not yet carried out a complete assessment on how the pelleting operation would

be moved to the Peterborough facility and whether significant changes to the assurance process

would be needed. According to the Applicant, such operating performance information is

mandatory in applications per paragraph 6(d) of the Class I Regulations.

[67] Information pertaining to the SCA of safety analysis was omitted, as the Commission

found that the Respondent had not updated its existing Safety Analysis Report [SAR] for the

Peterborough facility, but rather adopted the SAR currently in place for its pelleting operations in

Toronto. This, in the Applicant’s view, was a violation of paragraph 6 (c) of the Class I

Regulations.

Page: 41

[68] As the Respondent had not completed the design for modifications to equipment,

structures, systems and components such as stacks and emissions modelling necessary for

pelleting to occur in Peterborough, information pertaining to the SCA of physical design was

omitted. This omission, the Applicant contends, violates paragraphs 3(a), (b), (e) and (h) and

paragraphs 6(a) and (b) of the Class I Regulations.

[69] Information pertaining to the SCA of environmental protection was omitted, as the

Commission found that the Respondent had not updated its environmental monitoring program

to account for pelleting operations at the Peterborough facility. Such information was required,

according to the Applicant, by ss 4.2 and 4.3 of RegDoc 2.9.1 and paragraphs 3(g) and 3(h) of

the Class I Regulations in order to identify, seek to control, and monitor all releases of

radioactive and hazardous substances to the environment.

[70] The absence of the information pertaining to the four SCA’s, the Applicant submits,

deprived the Commission of the requisite material to make a reasonable decision under s 24(4) of

the NSCA to authorize the Respondent’s transfer of pelleting operations to Peterborough.

[71] The Applicant submits that the Respondent’s licence application failed to include the

requisite information regarding its proposed environmental protection policies and proposed

effluent and environmental monitoring programs for the Peterborough facility (as required by

paragraphs 3(g) and 3(h) of the Class I Regulations), as well as the requisite information

regarding the Peterborough facility’s design and layout, emissions release points and

environmental effects (as required by s 6 of the Class I Regulations).

Page: 42

[72] The Respondent contends that it provided information responsive to each of the SCAs as

well as each of its regulatory requirements, and that the Commission did not commit an error in

unanimously recognizing that the Respondent had satisfied the requirements of the Class I

Regulations. The Respondent argues that the Environmental Risk Assessment (ERA) it

submitted to the Commission, which concluded that the proposed consolidated facility would

produce emissions and radiation exposure at mere fractions of the licence or regulatory limits,

provides information responsive to the requirements of paragraphs 3(g), 3(h), 6(h), 6(i), 6(j) and

6(k) of the Class I Regulations. Moreover, the Respondent submits that it provided detailed

information regarding its environmental monitoring program in conformity with s 6(h) of the

Class I Regulations, and notes that it proposed transferring its air and soil monitoring practices

from Toronto to Peterborough if it commenced pelleting in Peterborough, which is the same

obligation created by Licence Condition 15.1. The ERA, the Respondent submits, was site

specific as it expressly accounts for local climate and meteorology, geology, groundwater flow,

surface water, terrestrial and aquatic environments, land use and the presence of the Prince of

Wales Public School.

[73] The Court agrees with the Respondent that the sufficiency of an application under the

Class I Regulations is a subjective standard left to the Commission to enforce, as the Regulations

provide broad, general standards, and terms defined without scientific precision. These broadly

defined standards leave room for the Commission’s judgment. It is worth noting that the

Commission itself wrote the Class I Regulations pursuant to s 44 of the NSCA. Calibration of the

precise level of specificity required by these broad terms is a matter Parliament left for the

Commission, not for the Applicant or the Court.

Page: 43

[74] It was reasonable, in the Court’s view, for the data and practices related to the Toronto

facility to be transposed to the Peterborough facility for the purpose of the ERA and

environmental monitoring program. This approach is supported by the regulatory guidance

provided by REGDOC-2.9.1, Environmental Protection: Environmental Principles, Assessments

and Protection Measures, which stipulates that initial ERAs of new facilities or activities are

“based on best estimates of the facility- or activity-specific characteristics” and “primarily

predictive”, as they involve assessing the potential effects of a hypothetical facility or activity.

The use of the Toronto facility data presented a stronger, more reliable safety case than mere

predictive assessments of a hypothetical facility that had yet to commence operations. It was

open to the Commission to accept the 2016 data as it is best suited to make such a finding.

[75] With respect to the SCA of safety analysis, it was also reasonable for the Commission to

rely on the Respondent’s safety analysis report from Toronto to satisfy paragraph 6(c) of the

Class I Regulations, as well as the Commission’s request for a mid-licence update prior to the

commencement of pelleting operations in Peterborough, pursuant to Licence Condition 15.2.

[76] The Respondent submits that it devoted 14 pages of its 58-page licence application to the

proposed measures, policies, methods and procedures for operating and maintaining the nuclear

facility, and thus satisfied the requirements of s 6(d) of the Class I Regulations. The Respondent

argues that the information relating to the Toronto facility was transferrable, as much of this

information is comprised of general practices and policies that would apply no matter where

pelleting took place, and because the Respondent plans to implement the exact same process if

Page: 44

pelleting is transferred to the Peterborough facility. It was reasonable for the Commission to rely

on this information.

[77] As for the SCA of physical design, the Respondent argues that it provided descriptions of

the locations, structures, systems and equipment used as required under paragraphs 3(a), 3(b),

6(a) and 6(b) of the Class I Regulations. Pelleting operations in Peterborough would be

conducted within the existing licensed facility via a reconfiguration of existing space, and no

new buildings would be constructed. Any changes and modifications that may occur during the

licence period would be governed by the Respondent’s change management plan, which was

approved by the Commission. Furthermore, the Respondent submits that its ERA provides

information on release points for the proposed consolidated facility, as required by paragraph 6(i)

of the Class I Regulations. The Commission was aware that the exact placement of new release

points had not yet been finalized but was still satisfied that the Respondent had provided

sufficient information for the Commission to exercise its authority under s 24(4).

[78] It does not constitute a reviewable error for the Commission to require additional

information from a licensee in the future. Changes to a licensed facility or activity are expected.

The Commission’s authority to attach any condition it considers necessary would have little or

no purpose if licence applications must fully account for every contingency during the licence

period.

[79] The Commission did not lack a sufficient basis on which to make a reasonable decision,

as it was reasonable for it to rely on the information that the Respondent provided pursuant to its

Page: 45

statutory and regulatory requirements. The Commission’s exercise of its discretion should not be

interfered with merely because such discretion could have been exercised in a different manner:

Maple Lodge Farms v Government of Canada, [1982] 2 SCR 2 at 7.

[80] In Greenpeace FC, the Federal Court held that it was reasonable for the Commission to

accept plans that were “far from final” as meeting the requirements of s 3 of the Class I

Regulations: Greenpeace FC at para 409. In any case, the Commission’s requests for further

information do not constitute findings to the effect that the Respondent failed to provide

adequate information to make a decision. The appreciation of the adequacy of the information

before the Commission is a matter properly left to the judgment of the Commission, which has a

high degree of expertise in such matters: Alberta Wilderness Assn. v Express Pipelines Ltd, 1996

12470 (FCA) at para 9; Greenpeace FCA at para 60. As the Federal Court of Appeal

stated in Greenpeace FCA, it is “inappropriate for a reviewing court to second-guess these

determinations through a detailed re-examination of the evidence as the appellants would have us

do in the instant case”: Greenpeace FCA at para 60.

[81] The Court is therefore satisfied that the Commission had a sufficient basis on which to

make reasonable conclusions pertaining to the SCAs of operating performance, safety analysis,

physical design and environmental protection, as well as conformity with the Class I

Regulations. It is not the proper role of this Court to re-evaluate the evidence and come to a

different conclusion as to whether the requirements of the Class I Regulations were satisfied.

C. Did the Commission fail to properly consider the ALARA principle, the

justification principle, or the precautionary principle?

Page: 46

[82] The Applicant submits that the Commission exercised its discretion unreasonably in light

of three principles: (i) the ALARA principle; (ii) the justification principle; and (iii) the

precautionary principle. These principles, the Applicant argues, have been entrenched in

international law and ss 3, 9 and 24 (4) of the NSCA required that they be applied by the

Commission.

[83] The Applicant relies on Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62 [Kazemi]

at para 61 to submit that legislation is presumed to operate in conformity with Canada’s

international obligations, and that those obligations must inform decision-makers as they

interpret and apply laws.

[84] The Applicant submits that the term “international obligations” in s 24(4) of the NSCA

must be interpreted to include the three core principles of radiation protection: justification,

optimization of radiation protection (or ALARA), and dose limitation (the radiation protection

principles). The Applicant contends that the Court’s interpretation of s 24(4) should be guided by

the legal test for establishing customary international law, as it is designed to incorporate

elements of international law into domestic law that are not in the form of treaties.

[85] The mere existence of a customary rule in international law does not automatically

incorporate that rule into the domestic legal order: Kazemi, at para 61. There are two

requirements for a norm of customary international law to be recognized in Canadian law: (a) a

general but not necessarily universal practice, and (b) opinio juris, the belief that such practice

amounts to a legal obligation: Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 77.

Page: 47

[86] The Applicant contends that these criteria are satisfied by Canada’s adherence to the

International Commission for Radiation Protection’s [ICRP] 1977 recommendations on

radiological protection that have been adopted within the International Atomic Energy Agency

Fundamental Safety Principles. These Fundamental Safety Principles are centred on the three

core principles enumerated above. The Applicant also asserts that this general practice of

justification analysis includes consideration of factors such as societal and ethical aspects: s 3.85

of the International Atomic Energy Agency, “Radiation Protection of the Public Environment”.

[87] The Applicant also relies on a statement by the Commission in 2019 to the ICRP that its

licensing process embodies the exercise of justification: Canadian Nuclear Safety Commission,

“Canada’s response to the 2019 IRRS Report”.

(a) ALARA Principle

[88] The Applicant argues that it was unreasonable for the Commission to authorize the

Licence Conditions when its decision specifically rejected contemplation of the social and

economic factors necessary to assess whether doses of nuclear substances to the public and

environment complied with the ALARA principle. Thus, the Applicant contends that the

Commission failed to implement the ALARA principle by rejecting contemplation of social and

economic factors, contrary to paragraph 4(a) of the Radiation Protection Regulations.

[89] The Applicant notes that s 5.0 of the Regulatory Guide G-129, Rev. 1, Keeping Radiation

Exposures and Doses “As Low as Reasonably Achievable (ALARA)”, the predecessor of draft

RegDoc 2.7.1 Radiation Protection, confirms that the ALARA principle takes into consideration

Page: 48

relevant social and economic factors, including the views of the public. Furthermore, the

Applicant maintains that implementation of the ALARA principle is required by ss 2.1, and 4.2.1

of REGDOC-2.9.1 Environmental Protection, ss 2.1.1, 2.1.2, 2.2.2, and 3.1 of RegDoc 2.9.2

Controlling Releases to the Environment (draft 2021), and by Appendix B of RegDoc 3.1.2

Reporting Requirements, Volume 1: Non-Power Reactor Class I Nuclear Facilities and Uranium

Mines and Mills.

[90] In support of its argument that the Commission failed to take into account social

considerations in accordance with the ALARA principle, the Applicant cites passages in the

transcript of the public hearings in which the President of the Commission stated several times

that “[t]he mandate of the Commission also does not include a requirement that licensed

activities have community support, local buy-in, social licence or social acceptability. […] the

Commission is not mandated to adjudicate social licence considerations”.

[91] In addition to the entrenchment of the ALARA principle in domestic regulations, the

Applicant argues that the ALARA principle is also a core international obligation that must be

applied by the Commission pursuant to s 24(4) of the NSCA. The Applicant contends that

Canada is obligated to take all appropriate steps to ensure that radiation exposure is kept

“ALARA” by article 15 of the Convention on Nuclear Safety and thus the Commission was

required to consider the ALARA principle, including social and economic factors.

[92]

The Respondent submits that the majority of the Commission properly considered the

ALARA principle. It argues that the principle does not independently inform the Commission’s

Page: 49

licensing decisions. Rather, the Respondent argues, the ALARA principle is implemented

through the Radiation Protection Regulations and requires licensees to implement a radiation

protection program; the Commission applies ALARA by ensuring this program is satisfactory:

Regulatory Guide G-129, Rev. 1, Keeping Radiation Exposures and Doses “As Low as

Reasonably Achievable (ALARA)”, ss. 1.0, 2.0, 4.0. The Respondent complies with this by, for

example, monitoring radiation doses, implementing “action levels” and establishing an ALARA

Committee. There is no independent obligation for the Commission to exercise its discretion in a

manner that is ALARA-compliant, but rather, only an obligation for the licensee to implement

measures that optimize radiation doses. The Commission majority decision ensures that efforts to

reduce doses are proportionate to the risk in stressing that “the very low levels of environmental

releases and doses to the public” created by the potential consolidation of the two facilities

“would not have an impact on the health of persons and the environment”: Licence Decision at

para 447.

[93] There is no provision in the Radiation Protection Regulations, nor in any regulatory or

guidance document requiring the Commission to exercise its discretion in accordance with the

ALARA principle in its assessment of radiation protection programs. Rather, paragraph 4(a) of

the Radiation Protection Regulations entrenches the ALARA principle only insofar as it pertains

to the design of a radiation protection program by a Licensee. None of the regulations or

regulatory documents cited by the Applicant create an obligation for the Commission’s decisions

to comply with the ALARA principle, nor for its decisions to take into account social

considerations in applying that principle. While such factors are to be found in the draft

regulatory document relied upon by the dissenting Commission Member, they have yet to be

Page: 50

adopted in domestic law. Legislative changes would be necessary for social factors to have an

impact on the Commission’s licence discretion. A representative of the Applicant at the

Commission hearing conceded this.

[94] In any event, the draft regulatory document relied upon by the Applicant, RegDoc 2.7.1

at s 4.1.3, provides that the ALARA principle must be implemented by the Licensee, and not by

the Commission. Regulatory Guide G-129, Rev. 1, which is currently in force, provides that the

Commission “looks at the processes adopted by licensees to maintain doses ALARA as evidence

of compliance with paragraph 4(a) of the Radiation Protection Regulations”: Regulatory Guide

G-129, Rev. 1, s 4.0.

[95] In the Court’s view, the Commission did not unreasonably fail to implement the ALARA

principle as there was no obligation for it to do so in its decision. The Commission properly

found that the Respondent complied with the ALARA principle by monitoring radiation doses,

implementing “action levels” and establishing an ALARA Committee.

(b) Justification Principle

[96] The Applicant submits that the Licence Decision is unreasonable because it does not

comply with the principle of justification and thus does not meet the requirement under s 24(4)

of the NSCA to implement international obligations. According to the Applicant, the justification

principle dictates that the Commission could not authorize pelleting operations in the

Peterborough facility without finding that the advantage posed by exposure to additional levels

of ionizing radiation outweighed any risks.

Page: 51

[97] The Respondent submits that the justification principle has not been incorporated or

adopted into the NSCA, its regulations or any of the Commission’s regulatory guidance. Canada

has not agreed to adopt or incorporate the justification principle into domestic law; thus,

reference to “intentional obligations” in the NSCA does not entrench the justification principle.

The Respondent further notes that Canada expressly rejected a request from the International

Atomic Energy Agency to incorporate the justification principle explicitly into its legal

framework: Canadian Nuclear Safety Commission, “Canada’s response to the 2019 IRRS

Report”, pp 3-4. In light of Canada’s express rejection of the principle, the Respondent argues

that it cannot qualify as customary international law either, as it fails the criterion requiring that

the practice be motivated by the belief that such practice amounts to a legal obligation. Finally,

the Respondent notes that while the justification principle under international law requires an

assessment of whether the benefits outweigh the harm, the Commission’s approach to

justification differs in that the Commission “justifies” its decisions on the basis that there is no

unreasonable risk. According to the Respondent, the Commission majority affirmed this

understanding of the justification principle in its reasons, explaining that its role is to apply the

NSCA and its regulations to ensure that the Respondent is operating safely within those

regulatory boundaries.

[98] The Court agrees with the Respondent that the term “international obligations” in s 24(4)

of the NSCA does not entrench the justification principle. Absent express incorporation, the

normative content of Canada’s domestic laws does not include principles of international law. In

the Federal Court of Appeal’s unanimous Entertainment Software Association v. SOCAN, 2020

Page: 52

FCA 100 decision, Justice Stratas articulated the following principles with respect to

international norms:

[77] Too often these days, we see these misuses. International

law enters legal debates before courts and administrative decision-

makers only in specific, defined ways that are consistent with

settled doctrine and our constitutional framework: Gitxaala Nation

v. Canada, 2015 FCA 73.

[…]

[80] For this fundamental reason, international instruments

cannot become Canadian law without domestic legislative action.

Put another way, international instruments are not self-executing in

Canadian domestic law. They must be incorporated into Canadian

domestic law by legislation that adopts the international instrument

in whole or in part or enacts standards borrowed from or related to

that instrument: Capital Cities Comm. v. C.R.T.C., 1977 12

(SCC), [1978] 2 S.C.R. 141, 81 D.L.R. (3d) 609 at 171-172

S.C.R.; Baker v. Canada (Minister of Citizenship and

Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174

D.L.R. (4th) 193; and many others. If Parliament decides not to

adopt a particular international instrument, that instrument does not

become binding domestic law: Ordon Estate v. Grail, 1998

771 (SCC), [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193 at para. 137.

Those who want it to be binding law have only one recourse: they

must persuade some politicians to make it so.

[…]

[87] The foregoing principles apply to administrative decision-

makers as well as courts. Like courts, administrative decision-

makers must interpret legislation by examining its text, context and

purpose: Vavilov at paras. 120-121. As discussed above, under that

method, international law enters into the analysis only in certain

ways.

[99] In its response to the International Atomic Energy Agency declining its request to

expressly incorporate the justification principle, the Commission noted that its licensing process

“embodies” the justification principle of international law; however, it drew a distinction

Page: 53

between the exercise of justification under s 24(4) of the NSCA, which requires that decisions be

justified on the basis that there is no unreasonable risk, and the justification principle as

understood under international law, which requires an assessment of whether the benefits

outweigh the harm. Therefore, it cannot be said that the justification principle, as understood

under international law, is believed to amount to a legal obligation in Canada. As such, it does

not satisfy the criterion of opinio juris and does not constitute a norm of customary international

law.

(c) Precautionary Principle

[100] The Applicant relies on 114957 Canada Ltée (Spraytech, Société d'arrosage) v Hudson

(Town), 2001 SCC 40 at paras 30-32 [Spraytech] to argue that the Commission failed to apply

the precautionary principle, as enshrined in Principle 15 of the Rio Declaration on Environment

and Development, UN Conference on Environment and Development, UN Doc A/CONF

151/Rev 1 (1992) and required by the Commission’s guidance document “Implementation of the

Precautionary and Sustainable Development Principles in Nuclear Law – A Canadian

Perspective”. The Applicant argues despite the Commission’s assertion that the estimated doses

and environmental releases of potential pelleting operations at the Peterborough facility are “well

characterized”, the Commission made a decision without the necessary site-specific evidence,

contrary to the precautionary principle.

[101] The Respondent submits that the Commission properly decided not to apply the

precautionary principle, as there were no threats of “serious or irreversible damage”. The

Respondent cites the definition of the precautionary principle in Spraytech at para 31, wherein

Page: 54

the Supreme Court confirms that the principle is triggered “where there are threats of serious or

irreversible damage”. Furthermore, the Respondent argues that the dissenting Commission

Member overextended or reinterpreted the precautionary principle by suggesting that he was not

satisfied because the transfer of pelleting operations to Peterborough would not amount to

“acting in an abundance of caution”.

[102] The Court agrees with the Respondent that, applying the definition in Spraytech, the

precautionary principle was not engaged in this instance. The Commission majority expressly

found that “there would not be serious or irreversible damages” resulting from the transfer of

pelleting operations to Peterborough. The dissenting Commission Member conceded “it would

be difficult to argue that there is potential for ‘serious or irreversible damages’ with moving the

pelleting operations”. The test is not, as the dissenting Member suggested, that the principle was

breached because the transfer to Peterborough would not amount to “acting in an abundance of

caution”. Thus it was reasonable for the Commission majority to determine that the

precautionary principle was not engaged.

VII. Conclusion

[103] In the application of the reasonableness standard, the Court is not empowered to

substitute its own view of the merits of the underlying matter. Reasonable people can disagree

about whether expanding an industrial operation involving nuclear materials in a residential

district and adjacent to a primary school is wise. The Court is aware that the City of

Peterborough has a long industrial history. It appears that the Respondent’s facility has been in

its present location for many years under the present and previous owners. The record does not

Page: 55

indicate when the school was built in that neighbourhood or whether the Respondent’s facility

was being used for handling nuclear materials when the school was constructed. The concerns of

residents in that neighbourhood, especially the parents of the children attending that school, are

understandable notwithstanding the evidence and the findings of the Commission members,

including the dissenting member, that the risk of harm is very low. While the Court may consider

that the wisdom of expanding an industrial operation involving nuclear materials in the

immediate vicinity of a primary school is dubious, that is not the question before it to determine.

[104] Applying the legal standard of reasonableness, including the deferential approach

required by the governing authorities, this is not a case where the Court can find that it is truly

necessary to intervene in order to safeguard the legality, rationality and fairness of the

administrative process: Vavilov at para 13. The application for judicial review must therefore be

dismissed.

[105] The parties have agreed to bear their own costs. Accordingly, none will be awarded.

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JUDGMENT IN T-228-21

THIS COURT’S JUDGMENT is that the application is dismissed. The parties shall

bear their own costs.

“Richard G. Mosley”

Judge

FEDERAL COURT

SOLICITORS OF RECORD

T-228-21

DOCKET:

CITIZENS AGAINST RADIOACTIVE

NEIGHBOURHOODS V BWXT NUCLEAR ENERGY

INC

STYLE OF CAUSE:

HEARD VIA VIDEOCONFERENCE

MARCH 21-22, 2022

PLACE OF HEARING:

DATE OF HEARING:

JUDGMENT AND REASONS:

DATED:

MOSLEY J.

JUNE 9, 2022

APPEARANCES:

Theresa A. McClenaghan

Kerrie Blaise

FOR THE APPLICANT

Jacqueline Wilson

John Terry

FOR THE RESPONDENT

James Gotowiec

Alex Bogach

SOLICITORS OF RECORD:

Canadian Environmental Law

Association

FOR THE APPLICANT

Toronto, Ontario

Torys LLP

FOR THE RESPONDENT

Toronto, Ontario