Digests

Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage)

T-2167-00

2004 FC 597, Gibson J.

23/4/04

32 pp.

Judicial review of Minister of Canadian Heritage's (Minister) decision communicated to applicants on October, 19, 2000 essentially capping commercial development in national parks--Applicants characterizing effect of decision as frustrating plans for development including parking lots, facilities and lifts, notwithstanding previous long-range plans or development agreements or arrangements, and to otherwise proscribe commercial operations contrary to lease and other contractual arrangements--Applicants operators of four commercial ski areas in Banff and Jasper National Parks--(1) Decision reviewable under Federal Courts Act, s. 18.1-- Nature of decision that of policy guidelines or policy parameters to govern development of new long-range plans for commercial ski areas in Banff and Jasper National Parks-- Thus, might not seem to be decision or order of federal board, commission or other tribunal within contemplation of Federal Courts Act, s. 18.1--In Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), Stone J.A. noting s. 18.1 enabling Attorney General of Canada and anyone directly affected by a matter to seek judicial review--Decision here of exceptional importance to applicants because of potential impact on their business interests--Stone J.A. stating (at para. 43) "matter" must emanate from "federal board, commission or other tribunal" and that "federal board, commission or other tribunal" meaning any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament" (emphasis added)--Here, Minister person exercising or purporting to exercise jurisdiction or powers conferred by or under Act of Parliament, i.e. National Parks Act--Thus, Minister within definition of "federal board, commission or other tribunal"-- As decision dealing with "matter", applicants directly affected, decision amenable to judicial review--(2) Question of Minister's authority to act as she did reviewable on standard of correctness, but question of whether decision open to Minister reviewable on standard of patent unreasonableness --(3) Respondent not acting without or beyond jurisdiction--Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, cautioning that Minister cannot fetter discretion by treating guidelines issued by him or her as binding on him or her or on successor--Further cautioning that ministerial guidelines or parameters must be made in good faith and, where required, in accordance with principles of natural justice and not upon basis of considerations irrelevant or extraneous to statutory purpose--Responsibility conferred on Minister by National Parks Act, s. 5(1), directed to objective set out in s. 4, sufficient authority to support issuance by Minister of policy guidelines or parameters reflected in decision under review--Notwithstanding rather absolute and arbitrary nature of some aspects of guidelines or parameters, nothing indicating Minister or any successor would regard herself or himself as forever precluded from adapting to facts of particular situation that warranted variation of guidelines or parameters--(4) No breach of principles of natural justice--Decision preceded by extensive public consultations involving applicants and extensive bilateral discussions between applicants and Parks Canada-- Respondents' affiant, who was personally involved in such consultations, attesting to impression applicants would accept parameters now contesting--Such evidence uncontradicted-- Finally, principles of natural justice and procedural fairness not imposing obligation on Minister to disclose decision under review in draft form to applicants and to provide them with opportunity to respond to draft, prior to adoption of decision under review--Content of duty of procedural fairness varies with circumstances of case--Given history of public consultations, private discussions and nature of decision, content of duty of fairness owed by Minister to applicants not extensive and fulfilled on facts of matter--(5) Given totality of evidence, and nature of decision, decision not resulting in decommissioning of, or forced abandonment of, or modification of, any existing project in any of four commercial ski operations in Banff and Jasper National Parks--Therefore decision not incompatible with Canadian Environmental Assessment Act--Application dismissed-- Canadian Environmental Assessment Act, S.C. 1992, c. 37-- National Parks Act, R.S.C., 1985, c. N-14, ss. 4, 5(1) (as am. by R.S.C., 1985 (4th Supp.), c. 39, s. 3)--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am by S.C. 2002, c. 8, s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).