IN THE FEDERAL COURT OF CANADA
TRIAL DIVISION
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Court Number T-2808-96
BETWEEN:
HERB BROWN BUILDERS LTD.
Plaintiffs
(Respondents)
- and -
HER MAJESTY THE QUEEN
Defendant
(Applicant)
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M O T I O N D E C I S I O N
September 3, 1997
Held at the Federal Court of Canada
Edmonton, Alberta
Pages 1 to 13
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TAKEN BEFORE:
The Honourable Associate Chief Justice Jerome
APPEARANCES
TAKEN BEFORE:
The Honourable Associate Chief Justice Jerome
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K. N. Lambrecht, Esq. For the Applicant
L. L. Decore, Esq. For the Respondents
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K. Kelly Court Registrar
D. Zavitz Court Usher
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C. R. Enders Court Reporter
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1 THE COURT: Thank you. Mr. Lambrecht, there
2 are two or three reasons why I do not consider this to be
3 an appropriate case for summary judgment, and I will give
4 you a brief outline on it now and put it in brief written
5 form as soon as I can.
6 Summary judgment should be confined
7 to cases where there is really no issue as to fact and no
8 issue as to credibility, and as well, probably, with the
9 law.
10 There have been a number of cases.
11 We have only had this summary judgment rule on the books
12 at the Federal Court for a short time, and as a result
13 there have been a number of cases that attempt to
14 establish what I think is important for a Court in that
15 every other court that has a summary judgment rule, and
16 that is that if we are never going to bring down the
17 curtain on a frivolous action, then we might as well take
18 the rule off the books.
19 Therefore, many judges have said,
20 there is nothing here that could not be decided by me,
21 and to some extent I see that kind of submission being
22 made by you today on behalf of the Minister to indicate
23 that this is simply a customary lease interpretation. I
24 think the action involves many more elements than that,
25 and essentially that is why I think it has to go on to
26 trial.
4
1 First of all, indeed the lease is a
2 legal document, and it may very well be that it does not
3 contemplate residence, and it may very well be that
4 Mr. Brown, if the Crown is right, and if your submission
5 today is on the mark, then Mr. Brown may very well be in
6 breach of the lease. If he is, then what concerns me, of
7 course, is the appropriate remedy, because there are a
8 number of other elements that seem to me to come into
9 play.
10 First of all, when this plaintiff
11 got into business at this airport, there were several
12 other people there, Transport Canada personnel, others
13 operating it, and the conditions were that there was
14 somebody there all the time, mostly, I assume,
15 Canada Transport personnel or airport personnel or
16 whatever. At that time Mr. Brown would not be concerned,
17 nor would his rival Contract Air or competitor be
18 concerned about security, security for the building, for
19 his facilities, and airplanes, I suppose, from time to
20 time stored in them.
21 Canada Transport has now changed
22 that policy, and that is not denied. It is public
23 information, I think, that the government is getting out
24 of the airport business, and that includes Fort McMurray.
25 Indeed the evidence confirms, as in other places, there
26 have been negotiations with, in this case, I assume, the
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1 local Wood Buffalo municipality. What will those lead
2 to? That is an area that concerns me that is not
3 answered in the simple proposition that the only thing
4 that concerns us here is whether there is breach of a
5 lease.
6 That is why I say if there is just
7 breach of a lease, then it may very well be that the
8 Court has to examine, once it has found breach, whether
9 there is any remedy that should come to the assistance of
10 the Minister or that has to be observed or paid by
11 Mr. Brown.
12 There are, therefore, a number of
13 factors that come into play with the pleading also says
14 that what we want, as I understand the Statement of
15 Claim, is that we want to hang on to the status quo until
16 such time as we know more, more about the transfer, more
17 about the negotiation. Because indeed, the affidavit
18 makes reference to the fact that the expectation is that
19 as and when it is transferred to the municipality that
20 the municipality not only has no trouble with this
21 gentleman and, I assume, his competitor having a resident
22 there, but they rather welcome it from the point of view
23 of security for their investment, I suppose, if not just
24 for Mr. Brown and his neighbour.
25 It seems to me, therefore, that
26 this brings in play a number of equitable considerations
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1 that do exist in the special relief of injunctive orders
2 that are sought here. In effect, I read the pleading to
3 be we have had some discussion with the airport, new
4 people, and we have some indication from them that they
5 will be prepared to go along with what we have asked the
6 government to do. If that is the case, then it would be
7 extreme for this Court, at least on summary judgment
8 without hearing evidence, without hearing argument to
9 foreclose Mr. Brown from making that argument and having
10 the benefit of it in a full trial.
11 I am also concerned, of course,
12 that that policy does make some major changes in the
13 position of one of the parties, and that is a policy that
14 the defendant has going as adopted. It is very well to
15 say that it does not affect the lease in this particular
16 situation, but, in fact, one of the effects is that there
17 is nobody there to guard the property.
18 That was expected to be so.
19 Transport Canada has reduced its presence there. Forget
20 about the service. It has reduced its presence there.
21 As I understand the evidence, at least for the purposes
22 of this motion, there is no one there for large portions
23 of the day, and, therefore, if Mr. Brown does not have a
24 presence there, and I assume Contract Air as well, then
25 who is going to guard the property?
26 If the Crown were to undertake that
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1 it would indemnify either of these people in the event of
2 violence or damage, obviously not. That is far beyond
3 the Crown's authority. Nevertheless, the conditions
4 under which this lease was entered into have been
5 changed, and, of course, they are not improper change.
6 The change is government policy. It is entirely proper,
7 I suppose. That is not the point.
8 The impact is if Mr. Brown loses
9 his property or one of his customer's planes, then he
10 alone stands to suffer financially, and, therefore, it
11 may be important for a Court to say to Mr. Brown, you are
12 in breach of the lease, which he obviously knows and
13 accepts. He tried to get a change in terms of the lease,
14 and, indeed, it may be by the time this goes to trial in
15 this Court that the municipality or some authority will
16 be there, and they will grant him those changes with
17 great pleasure.
18 In the meantime, if that is not the
19 case, it certainly seems to me to be only fair and just
20 to permit the situation to continue until such time as
21 what the conditions under which Mr. Brown's application
22 to the new municipality and his neighbour's application
23 for the same service is considered and in place, but more
24 so that the impact of this policy has been taken up to
25 the effect that probably both of these people have to
26 have some presence there, because if they are not there,
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1 they are risking hundreds of thousands of dollars in
2 damage as opposed to the term of the lease, let us
3 assume.
4 Now, the final point is I cannot
5 ignore the evidence that not only was there a resident
6 allowed there at one time, but the Contract Air had a
7 residence built, and for some years, I take it, it was
8 occupied. That it was not objected to, there may be
9 another element of fairness in that set of facts.
10 Therefore, I am not deciding this as a
11 judgment. I am simply saying that there are too many
12 issues of fairness, that a government department has the
13 responsibility to set the example for the rest of the
14 country in terms of fairness and justice and these sort
15 of elements. To simply make a ruling now based only on
16 the lease without reference to all the other elements
17 would do the case great disservice, and, therefore, I
18 accept the submission that this has to go to trial, and
19 hope that in the event Mr. Brown and Contract Air are
20 able to renegotiate something with the municipality, then
21 presumably the grievance goes away.
22 If they are not, and for some
23 reason Transport Canada continues to own -- to the
24 exclusion of its own policy, which would astonish me --
25 but if that does happen, then they would have to give, I
26 think, some consideration as to whether these tenants
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1 really have any realistic option, since there is nobody
2 else at the airport for so much of the time. Thank you.
3 Therefore, for these reasons the
4 application for summary judgment is denied, and the
5 matter will go to trial.
6 You have an application to amend
7 the pleadings?
8 MR. DECORE: My Lord, in fairness to my friend
9 with respect to the application to amend the pleadings,
10 might I suggest that that application be adjourned sine
11 die. My friend and I can then discuss it --
12 THE COURT: Sure. I think that is
13 appropriate.
14 You are not ready to deal with that
15 today?
16 MR. DECORE: It is not fair to my friend, sir.
17 THE COURT: We are not in any hurry. You may
18 want to get some instructions --
19 MR. LAMBRECHT: I mentioned at the beginning, sir,
20 that I would seek an Order for expedited trial in the
21 event that you ruled against me. I am not prepared to
22 see this matter adjourned sine die. My clients would
23 like to see this matter resolved expeditiously. I'm
24 asking for an expedited trial date and some directions.
25 THE COURT: I am certainly prepared to continue
26 to case-manage this issue through to an expedited trial.
10
1 It does not have to be delayed unduly. First of all, you
2 have got to exchange pleadings and do the discoveries,
3 and I will be here about every six weeks during all of
4 the winter months, and if I am not here, the motions
5 judge, who may be Judge Campbell, will certainly take on
6 case management.
7 In any event, probably it will be
8 more likely that or the prothonotary in Vancouver,
9 Mr. Hargraves, will be able to play the case manager's
10 role. The Court will entertain an application by either
11 party, obviously including the Minister, to make the
12 matter move quickly.
13 MR. LAMBRECHT: Well, may I suggest, sir, that this
14 motion of Mr. Decore's be moved to the first next
15 available date of the Court here so that we can --
16 THE COURT: Mr. Decore's motion to amend?
17 Certainly. Next available day? Next motion day
18 is --
19 COURT REGISTRAR: October 10th.
20 THE COURT: October 10, yes, and why don't you
21 set it down, Mr. Decore. Serve a fresh Notice of Motion
22 and set it down for October 10th.
23 MR. DECORE: Ah, darn it. Well, I will, sir.
24 THE COURT: That is a better way to do it than
25 now, I think. As a result of today you may want to add
26 some other material as well.
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1 MR. DECORE: Fine, my Lord. October 10 is
2 satisfactory with me for that, and I thank your Lordship
3 for that, because it was done rather hurriedly, and there
4 may be some gaps in it.
5 THE COURT: There will be an endorsement by
6 me in a minute that for reasons given orally the
7 application is denied. Brief reasons will be filed,
8 and they will be filed when I have had a chance to edit
9 my comments today.
10 Any other questions?
11 MR. DECORE: My Lord, my friend has filed a
12 motion returnable for the 11th of September. I have
13 not really had time to consider it, but I have, as I
14 advised the Court earlier, scheduled about a
15 week-long holiday. I cannot change it, because my wife,
16 who works, has set aside those days, and I would be in --
17 well --
18 THE COURT: I'm here until Friday, and if the
19 parties can agree on something other than that date, for
20 example, the next motion date here --
21 MR. LAMBRECHT: This motion is in the Court of
22 Queen's Bench, sir.
23 THE COURT: Oh, is it?
24 MR. DECORE: I didn't realize that.
25 THE COURT: We do not have anybody here. That
26 makes me feel better.
12
1 MR. DECORE: I apologize to you, sir.
2 COURT REGISTRAR: The special sitting of this Court
3 is now concluded.
4 (PROCEEDINGS ADJOURNED AT 12:15 P.M.)
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Certificate of Transcript
I, Cynthia R. Enders, hereby
certify that the foregoing pages are a true and faithful
transcription of the proceedings taken down by me in
shorthand and transcribed by means of a computer-aided
transcription system to the best of my skill and ability.
Dated at the City of Spruce Grove,
Province of Alberta, this 3rd day of September, A.D.,
1997.
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Cynthia R. Enders
Court Reporter