Date: 20001127
Docket: T-1311-99
Ottawa, Ontario, this 27th day of November 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
MORESBY EXPLORERS LTD. and
DOUGLAS GOULD
Applicants
- and -
THE SUPERINTENDENT OF THE
GWAII HAANAS NATIONAL PARK RESERVE,
GWAII HAANAS ARCHIPELAGO MANAGEMENT BOARD and
STEVE LANGDON
Respondents
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Moresby Explorers Ltd. ("MEL") and its co-applicant (and principal shareholder) Douglas Gould operate a tour business in the South Moresby Island area of the Queen Charlotte Islands, more specifically, in the Gwaii Haanas National Park Reserve. They are involved in an ongoing dispute with the management of the park over its allocation of their user quota, which determines the amount of business they are allowed to do in the park. The following statement of facts is taken from the respondent's memorandum of argument:
| Background to the Creation of a National Park Reserve (1988 Canada - B.C. Agreement) |
| 7. On July 12, 1988, Canada and British Columbia ("B.C.") signed a "Memorandum of Agreement for The Establishment of South Moresby National Park and National Marine Park, Queen Charlotte Islands, B.C." (The "Park Agreement") which set the foundation for the creation of a terrestrial National Park Reserve (the "National Park Reserve") and a National Marine Park Reserve ("National Marine Park") in the Queen Charlotte Islands. |
Affidavit of Anna Gajda, paragraph 3
Affidavit of Bruce Amos, paragraphs 5, 6.
| 8. B.C. transferred administration and control of the National Park Reserve to Canada on or about March 27, 1992 pursuant to Order in Council No. 438, and amended on September 10, 1992 by Order in Council No. 1432. |
| Affidavit of Bruce Amos, paragraph 17, Exhibit "F". |
| 9. The Park Agreement addressed the delay between the transfer of administration and control of the National Park Reserve and the National Marine Park from B.C. to Canada, and the subsequent designation of these lands as National Parks. Sections 23 and 24 of the Park Agreement inter alia: |
| (a) prohibited B.C. from allowing any interest to exist in the National Park Reserve or the National Marine Park without the consent of Canada, pending the transfer of these lands to Canada; |
| (b) restricted Canada's use of the lands to activities consistent with the National Parks Act and its regulations; |
| (c) required B.C. to request the Environment and Land Use Committee, pursuant to the Environment and Land Use Act recommend passage of a B.C. Order in Council authorizing Canada to exercise jurisdiction over the National Park Reserve on behalf of B.C.; and |
| (d) required B.C. to consider Canada's requests for B.C. to take action to remedy any particular problems with respect to the National Park Reserve. |
Affidavit of Bruce Amos, paragraph 5, Exhibit
"A", Environment and Land Use Act, R.S.B.C.
1996, c. 117.
| 10. As contemplated by section 24 of the Park Agreement and pursuant to s. 6 of the Environment and Land Use Act ("ELUC"), B.C. passed Order in Council 586 on or about April 19, 1989. This Order transferred authority to manage the National Park Reserve to the Canadian Parks Service, its Director General, and Canadian Parks Service officers and enabled them to manage and administer the land on behalf of B.C. as if the lands were a recreation area under the provincial Park Act. This allowed the Director General to issue permits over the subject lands. |
Affidavit of Ronald Keith Hamilton, paragraph 3,
Exhibit "A", Park Act, R.S.B.C. 1996, c. 344.
| 11. Canada accepted the transfer of administration and control of the National Park Reserve from B.C. on March 28, 1995 by Order in Council P.C. 1995-3/534. |
Affidavit of Bruce Amos, paragraph 19, Exhibit
"G".
| 12. The National Park Reserve was officially set aside as a National Park Reserve and became subject to the National Parks Act and regulations on or about February 22, 1996. |
Affidavit of Bruce Amos, paragraphs 20, 21,
Exhibit "H"
Affidavit of Ronald Keith Hamilton, paragraph 4.
| The 1993 Gwaii Haanas Agreement (Canada - Council of the Haida Nation) |
| 13. In or about November, 1980 the Council of the Haida Nation (the "Haida") submitted to Canada a comprehensive land claim over the Queen Charlotte Islands, and on June 30, 1983 Canada accepted the Haida claim for negotiation. In accordance with Parks Canada policy, Canada proceeded to establish a national park reserve in the Queen Charlotte Islands, pending the disposition of the Haida claim. |
Affidavit of Bruce Amos, paragraph 10,
Exhibits "C", "D".
| 14. Section 39 of the 1988 Park Agreement contemplated the involvement of the Haida in the planning and implementation of initiatives relating to the National Park Reserve and the National Marine Park, and this formed the basis for Canada to negotiate agreements with the Haida to cooperatively manage these lands. |
Affidavit of Bruce Amos, paragraph 5, Exhibit "A"
Affidavit of Stephen Langdon, paragraph 6
Affidavit of Ronald Keith Hamilton, paragraph 7.
| 15. Order in Council P.C. 1992-1591, dated July 16, 1992, authorized the federal Minister of the Environment to enter into an agreement on behalf of Canada with the Haida concerning the management and operation of the Archipelago (which includes the National Park Reserve) in the Queen Charlotte Islands. |
| 16. On or about January 30, 1993 Canada and the Haida entered the "Gwaii Haanas/South Moresby Agreement" (the "Gwaii Haanas Agreement") to co-operatively manage the Archipelago. The Archipelago covers the National Park Reserve area, and has been designated by the Haida as a Haida heritage site. |
Affidavit of Bruce Amos, paragraphs 12, 13,
Exhibit "D", Affidavit of Stephen Langdon,
paragraph 4.
| The Archipelago Management Board (AMB) |
| 17. The Gwaii Haanas Agreement provides for the establishment of a four-personArchipelago Management Board (the "AMB") whereby Canada and the Haida share and co-operate to "examine all initiatives and undertakings relating to the planning, operation and management of the Archipelago". The Superintendent of the National Park Reserve on behalf of Canada co-chairs the AMB with a representative of the Haida. |
ss. 4.1, 4.2 Gwaii Haanas Agreement, Affidavit
of Bruce Amos, paragraphs 11, 12, 18, Affidavit
of Stephen Langdon, paragraphs 3, 4, 5,
Affidavit of Ronald Keith Hamilton, paragraph 5.
| 18. Matters that the AMB address include guidelines for the care, protection and enjoyment of National Park Reserve with respect to such things as permits for commercial tour operations. |
ss. 4.3(e) Gwaii Haanas Agreement, Affidavit of
Bruce Amos, Exhibit "D".
| 19. Nothing in the Gwaii Haanas Agreement fetters or limits the authority of theSuperintendent. However, before the Superintendent takes any action, he or she must make an effort to first arrive at a consensus among AMB members for such action. |
s. 9.2 Gwaii Haanas Agreement, Affidavit of
Bruce Amos, Exhibit "D".
| The Business Licensing System |
| 20. In accordance with the Gwaii Haanas Agreement, Parks Canada and the AMB established the Quota Policy for a business licensing process in the National Park Reserve. |
Affidavit of Stephen Langdon, paragraph 9,
ss. 4.1, 4.2, 4.3(e) Gwaii Haanas Agreement
Affidavit Ronald Keith Hamilton, paragraph 9.
| 21. In 1995, the AMB encouraged tour operators to keep records of their trips and clients, and participate in a voluntary business licensing system by which quota was issued to tour operators to access the National Park Reserve. |
Affidavit of Anna Gajda, paragraph 12.
| 22. In 1996, after the National Park Reserve was officially designated as a national park reserve, a mandatory business licensing system replaced the voluntary process. |
Affidavit of Anna Gajda, paragraphs 9, 15.
| 23. Both the voluntary and the mandatory licensing systems were designed to regulate commercial tour operators' access to the National Park Reserve. One of the objectives of the mandatory licensing system was to freeze business activities at existing levels until the impact of those activities on the Park's ecological and cultural integrity, and the quality of the visitor experience in the National Park Reserve could be assessed. |
Affidavit of Anna Gajda, paragraphs 8, 12.
| 24. The Quota Policy contained the following elements: |
| (a) User Quota was calculated based on information submitted by tour operators for trips conducted in the National Park Reserve area prior to its designation in 1996; |
| (b) No licenses or allocation were given to operators who did not work in the National Park Reserve before 1996; |
| (c) the existing operators could not change the type of service that they provided before 1996 to make themselves eligible for quota; and |
| (d) new operators or changes in use would only be considered once a management plan was in place for the National Park Reserve to ensure that the area was managed in accordance with the management plan; |
| (e) no user quota would be granted to the extent that the activities of a tour operator were in conflict with the Quota Policy or with legislation. |
Affidavit of Anna Gajda, paragraphs 9, 10, 11,
20, 21
Affidavit of Steve Langdon, paragraphs 8, 9,
Exhibit "C".
| 25. If no conflict arose with policy or legislation, then User Quota was calculated and allocated in the following manner: |
| (a) the highest number of trips done in any one year prior to 1996; |
| times: |
| (b) the demonstrated capacity of the operator's trips, which was the average of the five trips with the highest number of people (crew and clients) on trips conducted prior to 1996; |
| times: |
| (c) the length of trips conducted in the year when the most trips were done. |
Affidavit of Anna Gajda, paragraphs 10, 11
| Affidavit of Stephen Langdon, paragraph 9, |
| Exhibit "C". |
| 26. As part of the Canada-Haida co-operative management of the National Park Reserve pursuant to the Gwaii Haanas Agreement, the AMB reviewed all applications for business licenses to obtain User Quota for the National Park Reserve. |
Affidavit Steve Langdon, paragraph 10
Affidavit of Anna Gajda, paragraph 10
Affidavit of Ronald Keith Hamilton, paragraphs 9, 10.
| 27. The business licenses and User Quota were then issued by the Superintendent pursuant to the National Parks Business Regulations, 1998, SOR 198-455 under the National Parks Act. |
| The Applicants and the 1999 Decision |
| Pre-1996 |
| 28. In 1989, the Applicants established a float camp in De la Beche Inlet which is located in the proposed National Marine Park. |
Affidavit of Anna Gajda, paragraph 4,
Exhibits "B" and "C".
Affidavit of Ronald Keith Hamilton.
| 29. In 1990, the Applicants applied to Parks Canada for the Commercial OperatorsRegistration. This was a voluntary process. The Applicants' request was denied by Parks Canada on the basis that it could not support any commercial facilities such as the Float Camp in the proposed National Park Reserve or National Marine Park without a management plan in place to support this use. Further, the Applicants were advised by Parks Canada officials that the float camp did not form any proprietary right that would be compensable upon these areas attaining designation as national park reserves. |
Affidavit of Anna Gajda, paragraph 5, Exhibit "D"
Affidavit of Ronald Keith Hamilton,
paragraph 15, Exhibit "H".
| 30. A 1995 visitor survey was conducted by Parks Canada for the National Park Reserve to determine public opinion. It included questions related to structures similar to the Applicants' float camp. The results of the 1995 survey indicated that the public was not supportive of float camps in the areas that would be designated as national parks. |
Affidavit of Anna Gajda, paragraph 14.
1996
| 31. The Applicants' Float Camp continued to occupy the National Marine Park area without authorization. |
Affidavit of Anna Gajda, paragraph 16.
| 32. Pursuant to the Park Agreement, and at Canada's request, on or about February 28, 1996, B.C. ordered the Applicants to remove all of their improvements from the foreshore of De La Beche Inlet within 60 days. |
Affidavit of Anna Gajda, paragraph 16, Exhibits "K", "L"
and "M"
Affidavit of Ronald Keith Hamilton paragraph 16.
| 33. In March and May of 1996, Parks Canada officials gave the Applicants notice to remove unauthorized float camp attachments, including a water line which was drawing water from inside the National Park Reserve. The float camp remained in De La Beche Inlet in May, 1996. |
Affidavit of Anna Gajda, paragraphs 18, 19,
Exhibits "O", "P", "Q".
| 34. The Applicants were issued quota to use the National Park Reserve in 1996, but only for activities that did not involve the float camp as it was not authorized to occupy De La Beche and it did not conform to the acceptable uses, or Parks Canada policy. |
Affidavit of Anna Gajda, paragraphs 17, 27, 31,
33, 34, Exhibits "E", "N", "X", "Y", "Z", "CC",
"DD", "E E", "FF", "GG"
Affidavit of Bruce Amos, paragraphs 6, 8, 9.
1997
| 35. In the Spring of 1997, the Director General of Parks, Western Canada, refused the Applicants' request for additional User Quota of 900 user days/nights for activities related to the float camp on the basis that the float camp did not have a license of occupation and it was not an acceptable activity according to the AMB and Parks Canada policy. These grounds for denying quota to float camp activities were communicated to the Applicants several times in 1997. |
Affidavit Anna Gajda, paragraphs 20, 23
Exhibit "R", "U".
| 36. Canada requested B.C.'s assistance with respect to the float camp, and the Ministry of Environment, Lands and Parks provided the Applicants with a Notice of Trespass in August, 1997 requiring them to remove the float camp from the designated National Park Reserve and the National Marine Park by September 30, 1997. |
Affidavit of Anna Gajda, paragraph 22, Exhibits "S"
Affidavit of Ronald Keith Hamilton,
paragraphs 13(6), 18.
| 37. In the Fall of 1997, the Applicants submitted further information for trips operated in the Park Reserve in 1988 (pre-1996). The Applicants' received an additional 25 user nights of quota, for powerboat tours which did not involve the float camp. |
Affidavit of Anna Gajda, paragraph 24, Exhibit "V".
1998 - 1999
| 38. In or about 1998, the Applicants relocated the float camp to Crescent Inlet, outside the northern boundary of the National Marine Park (the "Float Camp"), and in October of the same year they applied for a 1999 Business License and User Quota. |
Affidavit of Anna Gajda, paragraph 29
Affidavit of Ronald Keith Hamilton,
paragraph 18, Supplemental Affidavit of Anna Gajda.
| 39. A business license and User Quota of 1,597 user days/nights for powerboat tours/transport within the National Park Reserve was issued to the Applicants by Superintendent Stephen (Steve) Langdon on November 30, 1998 pursuant to the National Parks Act and its regulations (the "Decision"). |
Supplemental Affidavit of Anna Gajda.
40. The Applicants were first advised of the Decision on or about December 3, 1998.
Supplemental Affidavit of Anna Gajda.
| 41. Activities related to the Float Camp were taken into account when User Quota was calculated. The Decision was consistent with Parks Canada's communications with the Applicants since 1990, and the methodology for setting User Quota in 1996 was applied to the Applicants in the same way as to other commercial operators in setting their 1996 User Quota. |
Affidavit Anna Gajda, paragraphs 21, 27
Exhibit "Z".
| 42. The Applicants' protested their 1999 User Quota in a letter to the Superintendent dated December 11, 1998, and in particular the fact that they did not have User Quota for activities related to their Float Camp. In response to the protest, the Superintendent stated: |
| ... While I understand your desire to diversify your business, the Archipelago Management Board (AMB) have always maintained that your business will not receive an allocation for trips that involved your float camp while it was located in De la Beche Inlet. Your diving and kayaking tour documentation indicated that the float camp was used during these trips, and thus you cannot be issued an allocation for diving and kayak tours under current policies. |
...
| The AMB cannot assign your business additional allocation at this time. However, once the backcountry management plan is complete, you will have an opportunity to apply for additional allocation if impact monitoring programs indicate that Gwaii Haanas can support increased use levels. I expect thatthe draft backcountry management plan will be released for public and stakeholder review in March, 1999. I encourage you to continue to participate in the discussions that will be established to review the draft, and look forward to our continued dialogue to resolve your ongoing concerns. |
Affidavit of Stephen Langdon, Exhibit"G".
| 43. In March, 1999, a final draft of the Gwaii Haanas Backcountry Management Plan was released which requires Park Reserve activities to be consistent with the National Parks Act and regulations, the Gwaii Haanas Agreement, Parks Canada Principles and Operational Policies, and Gwaii Haanas Guiding Principles and Management Goals. The final version of this Plan was produced in September, 1999. |
Affidavit of Anna Gajda, paragraph 31.
| 44. In June, 1999 the Applicant again wrote to the Superintendent of Gwaii Haanas with respect to User Quota for his Float camp activities. The Acting Superintendent, Ronald Keith Hamilton, indicated that he would not interfere with the Decision: |
| As was stated to you in a letter, dated January 29, 1999, from Steve Langdon, the Archipelago Management Board (AMB) will not provide you with an allocation for trips that involved your float camp while it was located in De la Beche Inlet. Your diving and kayaking tour documentation indicated that the float camp was used during these trips, and thus you cannot be issued an allocation for diving and kayak tours under current policies. |
Affidavit of Ronald Keith Hamilton, Exhibit "P".
| 45. The same Quota Policy applied to the Applicants' was applied to other tour operators' applications for User Quota and business licenses. |
Affidavit Stephen Langdon, 11
[2] The applicants' view of the facts is similar, though there are some important differences. Specifically, the applicant denies that any decision was made by the various Superintendents and says that all the decisions, including the one which is the subject of this application, were made by the Archipelago Management Board.
[3] The licence which was issued to the applicant MEL reads as follows:
| GWAII HANAAS NATIONAL PARK RESERVE |
| AND HAIDA HERITAGE SITE |
| Business owners and their employees have a continuing responsibility to minimize the impact of their activities upon Gwaii Haanas. By being aware of what constitutes proper conduct within Gwaii Haanas, business operators set an example and send a message to visitors through their business practices. They share a responsibility to educate and inform visitors about Gwaii Haanas unique and sensitive features. |
| No person shall within Gwaii Haanas carry on any trade, calling, industry, employment or occupation carried on for gain or profit unless he/she is the holder of an annual licence issued pursuant to the Council of the Haida Nation and the National Parks Business Regulations. |
| Moresby Explorers Ltd and/or Douglas Gould is hereby licensed to carry on powerboat tours/ transport in Gwaii Haanas National Park Reserve and Haida Heritage Site up to December 31, 1999 subject to all the terms and conditions set out in the attached Schedule A. |
| Approved under the authority of the Approved under the authority of the |
| National Parks Act Business Regulations Council of the Haida Nation |
| [signature] [signature] |
| Superintendent |
| November 30, 1998 November 30, 1998 |
[4] The Schedule A attached to the licence contains various terms and conditions, a number of which require the licensee to satisfy the requirements of "the Superintendent and a Council of the Haida Nation representative".
[5] In response to a letter written to Steve Langdon, Superintendent, South Moresby (Gwaii Haanas) Park Reserve on December 11, 1998, Mr. Gould received a reply on the letterhead of the Archipelago Management Board over the signature of Steve Langdon, Co-chair, dated January 29, 1999 advising him that "... the Archipelago Management Board (AMB) have always maintained that your business will not receive an allocation for trips that involved your float camp while it was located in De La Beche Inlet ..." The AMB cannot assign your business additional allocation at this time." The letter went to refer to future applications: "However, once the Back Country Management Plan is complete, you will have an opportunity to apply for additional allocation if impact monitoring programs indicate that Gwaii Haanas can support increased use levels".
[6] Mr. Gould was absent from the area from January 1999 to April 1999, apparently for the purpose of guiding kayakers in the Baja California area. The January 29 letter did not come to his attention until late April. He was, he says, not able to find the time to reply until June, though he deposes that he formed the intention upon receiving the letter of exercising his right to challenge the decision. Nonetheless on June 14, 1999, Mr. Gould wrote to Mr. Langdon again demanding that he be granted a quota which included the use associated with his floating camp. He received a reply dated June 22 on the letterhead of the Gwaii Haanas Archipelago Management Board over the signature of Ron Hamilton, Co-chair, in which he was advised that "As was stated to you in a letter dated January 29, 1999 from Steve Langdon, the Archipelago Management Board (AMB) will not provide you with an allocation for trips that involved your float camp while it was located in De la Beche Inlet."
[7] On July 16, 1999, the Notice of Application in this matter was issued. The decision under review was described as:
| a refusal made and/or continued by the Respondents of an application for a 1999 Commercial Business licence with a designation and quota for motorized tours/transportation, diving and kayaking tours in an amount based on the application of an established formula to the number of trips conducted by the Applicant in the qualifying period ("Quota"). The date of the decision for which judicial review is sought is June 22, 1999 (letter from Ron Hamilton, Co-Chair, Archipelago Management Board). |
[8] As a result of the respondents raising certain issues with respect to the identity of the respondents and the timeliness of the notice of application, the applicants received leave to amend the Notice of Application. The decision under review is now described as:
| a refusal made and/or continued by the Respondents of an application for a 1999 Commercial Business License with a designation and quota for motorized tours/transportation, diving and kayaking tours in an amount based on the application of an established formula to the number of trips conducted by the Applicants in the qualifying period ("Quota"). |
| The date of the decisions and continuing actions for which judicial review is sought are November 30, 1998 (1999 Business Licence issued under the "Authority of the National Parks Act Business Regulations" and the "Authority of the Council of the Haida Nation" and January 29, 1999 (letter from Steve Langdon, Co-chair Archpelago Management Board and June 29, 1999 (letter from Ron Hamilton, Co-chair, Archipelago Management Board). |
[9] The first issue which needs to be dealt with is the timeliness of the application. The Respondent takes the position that the application is out of time since the decision is the issuance of the 1999 business licence, a fact of which Mr. Gould was aware on December 13, 1998. The 30-day limitation period in subsection 18.1(2) of the Federal Court Act (the "Act"), R.S.C. 1985 c. F-7 expired on January 13, 1999 so that the application is six months late. The respondents say that the issue of the quota attached to the licence was an ongoing issue and that Mr. Gould was led to believe that he could reapply for quota once the Backcountry Management Plan was released, which occurred in March 1999. His letter of June 14 incorporated the request which he was led to believe he was entitled to make so that the decision under review includes the letter of June 22, 1999.
[10] On the other hand, if the decision is the issuance of the licence dated November 30, 1998, the applicants seek an extension of time for the bringing of their application pursuant to subsection 18.1(2).
[11] The applicants rely upon Independent Contractors and Business Assn. v. Canada (Minister of Labour) (1998), 225 N.R. 19 (F.C.A.), [1998] F.C.J. No. 352, for the proposition that "whenever a decision maker who is empowered to do so agrees to reconsider a decision on the basis of new facts, a fresh decision will result whether or not the original decision is changed, varied or maintained." In this case, the applicant says the new facts are the issuance of a draft of the Backcountry Management Plan in March 1999 followed by the request for quota which was made in the letter of June 14, 1999.
[12] In Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230, [1995] F.C.J. No. 1238, Nöel J. (as he then was), reviewed a series of cases dealing with the effect of correspondence with a decision maker after a decision has been made. In those cases, the Court held that a "courtesy response" does not create a new decision from which judicial review may be taken. As it was put by McKeown J. in Dhaliwal v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 982 "...counsel cannot extend the date of decision by writing a letter with the intention of provoking a reply." Before there is a new decision, subject to judicial review, there must be a fresh exercise of discretion such as a reconsideration of a prior decision on the basis of new facts.
[13] The issue in these proceedings is the failure of the park authorities to grant the applicants any quota with respect to operations conducted from the applicants' floating camp. The respondents' refusal to do so occurred at the point where the licence was issued since quota was dealt with as a term or condition of the licence. The applicants argue that the letter of January 29, 1999 from Steve Langdon contained an invitation to reopen the question of quota once the Back Country Management Plan was released. The Back Country Management Plan was released and included a discussion of the park reserve's capacity for increased levels of use. The letter of June 14 makes no reference to the Back Country Management Plan nor to any question of capacity for increased use levels, elements which would have supported the applicants' position. The letter of June 14, 1999 was not a response to the contents of the Back Country Management Plan. I find that it was not written pursuant to a perceived invitation to reopen the issue of quota following the release of the Back Country Management Plan.
[14] To the extent that the letter of June 14, 1999 raises anything new at all, it is the applicants' withdrawal of a compromise position which they had put forward in the December 11, 1998 letter limiting their demand to a portion of the quota to which they claimed to be entitled. It is not obvious how making an even larger demand than the one which had already been refused constitutes new information. Nor is there any indication that the decision maker agreed to reconsider the matter. The opening words of the letter dated June 22 are: "As was stated to you in a letter dated January 29, 1999 from Steve Langdon, the Archipelago Management Board (AMB) will not provide you with an allocation for trips that involved your float camp while it was located at De la Beche Inlet." There is no indication here of an intention to take a fresh look at the applicants' submissions.
[15] As a result, I reject the argument that the course of correspondence between the parties represents a continuing decision, or a course of conduct, from which judicial review may be taken as late as 30 days from the last letter in the series. In my view, the correspondence simply shows persistent attempts to reverse a negative decision and a continuing commitment to the original decision by the respondents. Unless the Court is prepared to exercise its discretion to extend the time for bringing the application, it is out of time and must be dismissed.
[16] The principles applicable to an extension of time for bringing an application for judicial review were canvassed by the Federal Court of Appeal in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263, (1985), 63 N.R. 106, a decision involving the extension of time for judicial review under section 28 of the Federal Court Act (the "Act"), which is analogous to subsection 18.1(2) of the same Act which applies to this application. The overriding consideration is to do justice between the parties:
| The imposition of time limits to dispute the validity of a legal decision is of course meant to give effect to a basic idea of our legal thinking that, in the interest of society as a whole, litigation must come to an end (interest reipublicae ut sit finis litium), and the general principles adopted by the courts in dealing with applications to extend those limits were developed with that in mind. Only if the ultimate search for justice, in the circumstances of a case, appears to prevail over the necessity of setting the parties' rights to rest will leave to appeal out of time be granted. Hence the requirement to consider various factors, such as the nature of the right involved in the proceedings, the remedy sought, the effect of the judgment rendered, the state of execution of that judgment, the prejudice to the other litigants in the dispute, the time lapsed since the rendering of the judgment, the reaction of the applicant to it, his reason for having failed to exercise his right of appeal sooner, the seriousness of his contentions against the validity of the judgment. It seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay. |
per Marceau J.A. at p. 282
[17] In determining whether the interests of justice require that leave be granted, various factors can be considered, including but not limited to, the explanation for the delay and the merits of the underlying case. In this case, the explanation for the delay is unsatisfactory. The applicants consulted legal counsel some time prior to May 1998 which is evidenced by the fact that legal counsel for the applicants wrote to the Director General of Parks Canada on behalf of the applicants on May 20, 1998. The applicants therefore had every opportunity to be aware of the time constraints involved in bringing an application of this nature. They also knew that a fresh decision would be made when they applied for their 1999 licence. The fact that the applicant, Mr. Gould, then left the area without making arrangements to deal with a possible refusal of his request for additional quota is indicative of a lack of intention to take action within the statutory period. Furthermore, when the refusal did come to his attention in April, he took no steps to deal with it until June, at which time his response was to send another letter. It is not necessary to determine whether he did this with the intention of doing that which McKeown J. held counsel may not do. The explanation for the delay is unsatisfactory.
[18] Other factors may also be considered. As noted above, the matter in issue here is a recurring annual event. This is not like the issue in Grewal, supra, which involved a challenge to a deportation order, an issue which would only arise once, whose consequences for the applicant were potentially life-threatening. The applicants will have other opportunities to raise the same issue and to obtain an adequate remedy.
[19] It is worth bearing in mind that the applicants launched their challenge to the 1999 licence well into the 1999 season. Once the application was launched, a requisition for hearing was not filed until January 10, 2000. No request for an expedited hearing was made. No application was made with respect to subsequent licences as they were issued. The issue of timeliness is one created by the applicants' conduct.
[20] Grewal, supra, suggests that a consideration of the merits is appropriate in considering whether an extension of time should be granted. Since the application for an extension of time was heard at the same time as the hearing on the merits, the latter were fully canvassed. I do not propose to embark upon a full review of the merits simply for the purpose of disposing of the dealing with a request for an extension. Suffice it to say that the applicant has demonstrated an arguable case but not one so compelling that the failure to grant leave would constitute a miscarriage of justice.
[21] Finally, there is the question of mootness. The respondents say the application is moot because it is in reference to a 1999 licence which has now expired. There is nothing which the Court can order which can have any impact upon an expired licence. The applicants reply that this issue is a recurring issue of short duration as that term was used by Sopinka J. in Borowski v. Attorney General for Canada, [1989] 1 S.C.R. 342, (1989), 92 N.R. 110, which is the leading case on the issue of mootness. In that case, Sopinka J. established a two-step process for the analysis of mootness:
| The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. |
[22] The particular question before the Court is moot because the court cannot roll back the clock and grant the applicants the remedies they seek with respect to the licence which is the subject of the application.
[23] In considering whether to hear a case which is moot, a court is concerned that there be a party opposed in interest so that the court gets the full benefit of the adversial process in canvassing the issues. That was true in the argument of this application but it will also be true if an application is made in a timely fashion.
[24] A court faced with an argument as to mootness is concerned to know whether it is an appropriate use of scarce resources to hear a claim whose outcome may not solve anything. Will the decision in the case settle any live dispute given that if the dispute which came before the court is itself resolved? The applicants answer that the decision in this case will bind the parties with respect to subsequent licences. This is only true where it can be shown, or safely assumed, that all material factors will remain the same in the interval. If they do not, a new argument as to the applicability of the decision is overlaid on the original dispute. Given that licencing occurs annually, there is no need to assume anything. An application can be brought on the facts as they exist at the time of application.
[25] This is a recurring problem but not one whose duration is so short that it cannot be dealt within a timely fashion with the exercise of some diligence on the part of counsel and the court's assistance if required. An application is a summary procedure, and if there are no cross examinations on affidavits (there were none here), a requisition for hearing could be served very early in the licence year. If the normal assignment of dates were insufficient to get the matter before the Court soon enough, a request for an expedited date could be made. In this case, the Notice of Application was issued in July 1999 but the requisition for hearing was not signed until January 2000. This is a pace which a reasonable effort could easily exceed.
[26] Finally a court is sensitive to the issue of remaining in the court's proper role:
| Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. |
[27] Deciding this case on its facts on the theory that it will govern other cases whose facts are not yet known is akin to assuming a legislative role.
[28] The case for hearing this matter is insufficient. The explanation for the delay in bringing the application in a timely fashion is very weak. The merits of the applicants' case are not such that they justify the absence of a satisfactory explanation for the delay. The claim is moot and there is no persuasive policy reason why this dispute should not be resolved on current facts. The application for an extension of time is dismissed.
[29] For those reasons, there will be an order dismissing the application on the basis that it is out of time and an application for an extension of time has not been granted.
ORDER
For the reasons set out above, the application is dismissed on the ground that the application was brought in outside the 30-day time limit prescribed in subsection 18.1(2) of the Act and no extension of time for the bringing of the application has been granted.
"J.D. Denis Pelletier"
Judge