Digests

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

T-363-01

2004 FC 346, Hargrave P.

4/3/04

27 pp.

Motion to strike out all of defendants except Her Majesty the Queen and Parks Canada Agency, and motion to strike out action--Plaintiff, assignee of lease of Crown land in Banff National Park on which plaintiff operates gondola lift-- Applied to Crown for business licence to operate gondola lift outside of ski season--By letter dated September 6, 2000, Crown denied plaintiff licence for out-of-season use on basis of 1997 Banff National Park Management Plan--That refusal subject of present action--Plaintiff previously denied business licence to operate gondola lift for summer sightseeing in 1996--On judicial review Campbell J. upheld 1996 denial of business licence ((1997), 132 F.T.R. 89 (F.C.T.D.))-- Defendants seeking to strike out whole of statement of claim on issue estoppel argument--As to appropriate defendants, basic proposition Minister of the Crown may not be sued either in representative capacity or personally, unless actions done in personal capacity--No allegations in statement of claim of acts done personally--Officials said to have induced breach of contract and acted in tortious manner and abused their public office--No utility, need or legal basis on which to sue Attorney General of Canada, for Attorney General of Canada, just as much as Minister of Canadian Heritage and Parks Canada Agency, is really the Queen in right of Canada --As to individual defendants, starting point application of three-part test to found jurisdiction in Federal Court, established in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752-- Disclosing nothing of sufficient substance upon which to found jurisdiction over various individual defendants--Claims against individual defendants in personal capacities struck out by reason of failure to satisfy second branch of ITO test (existing body of federal law essential to disposition of case and nourishing statutory grant of jurisdiction)--Further, presence of individual defendants would bring little or nothing to action--As to substance of action, claim against Crown and whether claim already litigated and determined, this was second proceeding commenced by plaintiff to try to obtain summer use of gondola ski lift at Mountain Norquay-- Principle upon which issue estoppel based is that there should not be unnecessary re-litigation so as to vex defendant more than once over same issue and so as to needlessly strain resources of all concerned--To apply principle, must first isolate issue at stake--Central issue whether Crown properly refused plaintiff summer use of gondola lift at Mount Norquay--Issue estoppel prevents plaintiff from again litigating central issue even though earlier format of proceeding judicial review and present format action--Classic test for issue estoppel set out in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.)-- Fundamental issue herein not radically different from fundamental issue Campbell J. dealt with--Fundamental issue in both cases summer use of Mount Norquay gondola by plaintiff--Even though clear foundation for issue estoppel, sometimes unjust to apply doctrine--Issue estoppel should not be mechanically applied--After determining preconditions for estoppel have been met, should consider whether, as matter of exercise of discretion, issue estoppel ought in fact to be applied--Relevant factors bearing on exercise of discretion in this case are availability of appeal, circumstances giving rise to earlier proceeding, and potential of injustice, from point of view of both sides--Certainly plaintiff in position to appeal Campbell J.'s decision, but discontinued appeal-- Circumstances giving rise to earlier proceeding not giving rise to any vulnerabilities or perceived weakness in procedure-- No grounds there to exercise discretion--As to potential for injustice, fact appeal abandoned indicating both procedure adopted by Campbell J. and decision fair--No utility in re-litigating same fundamental issue--Standard for striking out: must be plain, obvious and beyond doubt case will not succeed--No doubt either on jurisdictional or on issue estoppel basis that instant case will not succeed against balance of defendants because of want of jurisdiction and against Her Majesty the Queen and Parks Canada Agency by reason of issue of estopel--Action struck out.