Docket: T-363-01
Calgary, Alberta, September 14, 2004.
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
PETER G. WHITE MANAGEMENT LTD.
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS
REPRESENTED BY THE MINISTER OF CANADIAN HERITAGE
FOR CANADA SHEILA COPPS, AND THE SAID MINISTER OF
CANADIAN HERITAGE FOR CANADA, THE PARKS CANADA
AGENCY AS REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
TOM LEE, AND THE SAID TOM LEE, THE FIELD UNIT SUPERINTENDENT
OF BANFF NATIONAL PARK, WILLIAM FISHER, CHARLES ZINKAN
AND THE ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER AND ORDER
[1] This is an appeal from two Orders by Prothonotary Hargrave of April 17, 2001 and March 22, 2002 respectively, (1) striking out all named Defendants except Her Majesty the Queen in the Right of Canada and the Parks Canada Agency; and (2) striking out the action against these two remaining Defendants as an abuse of process.
BACKGROUND
[2] The Plaintiff in the underlying action is a corporation which is the assignee of a lease (Norquay lease) granted on May 21, 1993 for use of the Mount Norquay commercial ski area in Banff National Park. The Plaintiff asserts that the Norquay lease entitles it to the use of a gondola located there during summer months. In a decision dated July 2nd, 1996, the Superintendent of Banff National Park declined to issue the Plaintiff a license for such use.
[3] The Plaintiff commenced application T-1776-96, seeking judicial review of this decision. In a decision dated May 28th, 1997, Campbell, J. dismissed the application on the basis that the Norquay lease conveyed only a restricted contingent right to operate a business on the lands. He found that the decision not to issue the license was, therefore, within the jurisdiction of the Superintendent. ( See Peter G. White Management Ltd v. Canada (Minister of Heritage) [1997] F.C.J. 718 ). The Plaintiff commenced an appeal of this decision which was subsequently abandoned.
[4] Shortly thereafter the Plaintiff filed the Statement of Claim against in the underlying Her Majesty the Queen, the Minister, Parks Canada Agency, Tom Lee the CEO of Parks Canada, The Superintendent of the Banff National Park, the Field Superintendent of Banff National Park (individual Defendants) and the Attorney General of Canada. In the Statement of Claim the Plaintiff makes numerous allegations including breach of contract, tortious interference with business relations and abuse of public office.
[5] The Defendant brought two motions:
i) to strike out the action against the Minister personally, the Parks Canada Agency, the Attorney General and the individual Defendants and
ii) to strike out the entire action as an abuse of process.
[6] Prothonotary Hargrave made two separate decisions dated March 4th, 2004.
- In response to the motion to strike Defendants he struck out the action against the Minister personally on the basis that a Minister cannot be sued in a personal capacity for actions undertaken in the capacity of public office holder. In addition, he concluded that the actions against the other individual Defendants could not proceed for failing the test in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752 ("ITO")
[7] In response to the motion for abuse of process he concluded that the issues raised in the within action were sufficiently similar to those raised in T-1776-96 that the bringing of the action constituted an abuse of process.
[8] The Plaintiff now appeals Prothonotary Hargrave's decision.
ISSUES
1. Did Prothonotary Hargrave err in dismissing the personal claims against the Minister and the individual Defendants?
2. Did Prothonotary Hargrave err in dismissing the action on the basis of issue estoppel?
NATURE OF REVIEW
[9] The standard for review of decisions of prothonotaries is set out in Merck & Co. v. Apotex Inc., [2003] F.C.J. No. 1925 at para. 19 (F.C.A.), Dècary, J.A.set out the relevant test as follows:
Discretionary orders of Prothonotaries ought not be disturbed on appeal to a judge unless:
a) the questions raised in the motion are vital to the final issue of the case, or
b) the orders are clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principle or upon a misapprehension of the facts.
Issue 1 -dismissing the personal claim against the Minister and the individual Defendants
[10] This question is obviously not vital to the final issue of the case. Her Majesty will be the Defendant, whether this motion succeeds or not and recovery for any amounts owing can be had from Her Majesty. Thus to succeed the Applicant has to meet Part b) of the test in Merck & Co. v. Apotex Inc., (supra).
[11] Paragraphs 8 to 29 of the judgment of Prothonotary Hardgrave canvass this issue extensively. I find them to be very persuasive and cannot see how his reasons can be said to be based upon a wrong principle or upon a misapprehension of the facts. Consequently, on the basis of reasons given by the prothonotary, the motion respecting the striking of additional Defendants will be denied.
Issue 2 - striking out the entire action as an abuse of process.
[12] Prothonotary Hargrave in his judgment made the following remarks in paragraphs 35 and 40 regarding the fundamental issue in this case."
[35]...In the present instance the central and fundamental issue in this action, the issue which was decided in the earlier judicial review proceeding, is whether the Crown properly refused the Plaintiff the summer use of the gondola lift at Mount Norquay. The Defendants submit that the issue was finally determined in judicial review proceeding T-1776-96, for the appeal of that decision, A-457-97, was discontinued. I agree with the submission of the Defendants, that issue estoppel prevents the Plaintiff from again litigating the central and fundamental issue. This is so, given an identical fundamental issue, even though the earlier format of the proceeding was judicial review and the present format an action:...
...
[40] While the decision of Mr. Justice Campbell may be broken down, almost infinitely, into various points bearing on the matter, the fundamental issue is the summer use of the Mount Norquay gondola, by the present Plaintiff. Mr. Justice Campbell decided the issue in the context of a 2 July 1996 refusal of summer use by the superintendent of Banff National Park; of the National Parks Act; of the Plaintiff's knowledge of the discontinuance of summer use of the gondola by its predecessor, in exchange for additional terrain for an expanded winter operation; the Long Range Plan of Canada Park Services for the Mount Norquay ski area; its assigned lease; and various regulations including the National Parks Business Regulations. All of this distills down to the fundamental issue of summer use of the gondola, with Mr. Justice Campbell upholding the denial of that use by the Crown.
[13] Relying on Rasamen v. Rosemount Instruments ltd (1994) 112 D.L.R. 94th) 683 he held that notwithstanding differences in language and characterization, the two proceedings met the test for issue estoppel as set out in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248. The preconditions for the application of issue estoppel were described by Dickson J. in that case as :
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[14] Finding that the facts here met all three legs of the test, he struck out the statement on the basis of issue estoppel.
[15] A closer examination of the judgment of Campbell J.'s facts reveals the following.
I) the decision under review by Campbell J. was made on July 2, 1996 by the Superintendent of Banff National Park.
II) Campbell J. rendered his judgment on May 28, 1997.
III) Campbell's judgment deals with the nature of the right held by the Applicant. It addresses the interplay of the lessee's rights under the lease provisions, the Long Range Plan for the Mount Norquay Ski area(LRP) and the discretion exercisable under the lease.
IV) The LRP was not authorized by statute but was found to merely represent a statement of government policy.
[16] The present action on the other hand:
I) Concerns a decision made on September 6th, 2000 by the Field Unit Superintendent of Banff National Park.
II) The decision relies on p. 48 the Management Plan (MP) for Banff National Park which states: "Prohibit the summer use of the lifts , this use is inconsistent with the long range plan".
III) The MP is dated April 1997. The MP was not mentioned in argument before Campbell J. nor does his judgement refer to it.
IV) The MP is specifically authorized by statute ( s. 11) (1) of the Canada National Parks Act S.C. 2000, c. 32 and its forerunner s. 5 (1.1) of the National Parks Act, S.C. 1988 c. 48.
V) Section 4 of the Parks Canada Agency Act S.C. 1998, c.31 (assented to Dec 3 1998) gives the Minister specific and general power of direction vis a vis the agency.
VI) In this action the Applicant argues, inter alia, that the MP amounts to a specific and general direction fo the minister under sections 4 and 5 of the Parks Canada Agency Act S.C. 1998 c. 31
[17] While I agree with the Prothonotary that from the broadest perspective the fundamental issue is 'whether the Crown properly refused the Plaintiff the summer use of the gondola lift at Mount Norquay'. However the judicial review proceeding before Campbell J. concerned a decision made prior to entering the MP. It examined the rights created by the lease, the impact of the LRP on the decision not to grant the license and whether discretion was properly exercised. Campbell J. did not consider the MP (a plan) authorized by statute as it was not in existence when the original decision was made and as it was not argued before him. Nor could he consider the power of direction contained in the Parks Canada Agency Act since those provisions had not yet been enacted.
[18] In this action we are dealing with a decision made four years later at a time when the MP governs the decision not to permit summer use of the gondola. The Court will have to determine the effect and status of the MP, whether it constitutes a Ministerial direction under the Canada Parks Agency Act, and whether the MP amounts to a fettering of the discretion. These were issues never considered by Campbell J. and consequently his decision cannot meet the first leg of the Angle(supra) test. The question that needs to be decided while bearing on the same subject has very different factual and legal underpinnings than the question decided in
T-1776-96.
[19] It may well be that the outcome will be the same as it was before Campbell, J., but given that the issue to be decided involves different facts, statutes and plans, the statement of claim cannot be struck out on the basis of issue estoppel. Accordingly, I find that the Prothonotary proceeded under a misapprehension of facts and consequently this motion will be allowed.
ORDER
THIS COURT ORDERS that
1. The motion in respect of Prothonotary Hargrave's order striking out the named Defendants in the Plaintiff's action except Her Majesty the Queen in Right of Canada and the Parks Canada Agency, is denied.
2. The motion in respect of Prothonotary Hargrave's order dated March 4, 2004 striking out the Plaintiff's Statement of Caim by reason of abuse of process pursuant to Rule 22(1)(f) is allowed. The order of the Prothonotary is hereby set aside.
3. Given that each side was only partially successful in these two motions there will be no order as to costs.
"K. von Finckenstein"
F. C. J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-363-01
STYLE OF CAUSE : PETER G. WHITE MANAGEMENT LTD.
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE MINISTER OF CANADIAN
HERITAGE FOR CANADA SHEILA COPPS, AND THE SAID
MINISTER OF CANADIAN HERITAGE FOR CANADA,
THE PARKS CANADA AGENCY AS REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER TOM LEE, AND THE SAID
TOM LEE, THE FIELD UNIT SUPERINTENDENT OF
BANFF NATIONAL PARK, WILLIAM FISHER, CHARLES
ZINKAN AND THE ATTORNEY GENERAL OF CANADA
Defendants
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 13, 2004
REASONS FOR ORDER AND ORDER : von Finckenstein J.
DATED: September 14, 2004
APPEARANCES:
Mr. Richard B. Low, Q.C. FOR PLAINTIFF
Mr. Kirk N. Lambrecht, Q.C. FOR DEFENDANTS
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SOLICITORS OF RECORD:
Bennett Jones LLP
Calgary, Alberta FOR PLAINTIFF
Morris A. Rosenberg
Deputy Attorney General of Canada FOR DEFENDANTS