Date: 20040304
Docket: T-363-01
Citation: 2004 FC 346
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
HARGRAVE P.
BACKGROUND
[1] These reasons arise out of two motions, the first to strike out all of the Defendants except Her Majesty the Queen and Parks Canada Agency and the second to strike out the action of the Plaintiff, who is by assignment of 2 August, 1995, the assignee of a 21 May, 1993, lease of Crown land in Banff National Park, which I shall also call the "Norquay lease", on which the Plaintiff operates a gondola lift.
[2] The Plaintiff applied on 31 August, 2000 to the Crown for a business licence to operate the gondola lift outside of the ski season, a use approved in the lease. By letter of 6 September 2000 the Crown, in the person of the Defendant, William Fisher, Field Unit Superintendent of Banff National Park, denied the Plaintiff a licence for such out-of-season use on the basis of the 1997 Banff National Park Management Plan, the long term evolution of an ecological vision by which to guide management discretion, promulgated by the Crown. The Management Plan specifically prohibits the use of the Plaintiff's gondola lift at Mount Norquay during the summer. To be fair, I should note that the original holder of the Norquay lease voluntarily and to the knowledge of the Plaintiff, before the Plaintiff became the holder of the Norquay lease, relinquished summer operation of the lift in order to obtain concessions by which to enhance the winter ski season operation.
[3] Previously, on 18 June, 1996 the Plaintiff had applied for a business licence to operate the gondola lift for summer sight-seeing, and was denied the licence by 2 July 1996 decision of the Minister of Canadian Heritage. The result was a judicial review proceeding T-1776-96, leading to reasons of 28 May 1997, in which Mr. Justice Campbell found that the Norquay lease conveyed only a restricted right to operate a business on the leased land, that there had been a proper exercise of discretion throughout and thus the denial of the business licence had been a proper decision.
[4] The result of the more recent 6 September, 2000 refusal of a business licence to the Plaintiff to operate the gondola during the summer is the present action. The Defendants include the Crown, Parks Canada Agency, the Minister of Canadian Heritage both as Minister and personally for tortious interference with the Plaintiff's business and for abuse of public office. The Plaintiff also claims personally against various Crown employees who are either with Parks Canada Agency or are or were superintendents of Banff National Park and against the Attorney General of Canada. The claim, variously invoked in tort and in contract, is for $17.5 million. However one must keep in mind that both the 1996 and 2000 decisions of Parks Canada Agency have the same roots and other than being four years apart are not different decisions.
[5] The Defendants are all represented by the Attorney General of Canada. As I have indicated, by one motion the Attorney General seeks, on behalf of Her Majesty the Queen, to strike out the whole of the Statement of Claim on an issue estoppel argument. By the other motion the Attorney General seeks to strike out all of the named Defendants, except as to the Queen and Parks Canada Agency ("Parks Canada"), on the basis of want of jurisdiction, and the naming of redundant and unnecessary defendants.
[6] The present proceeding appears to arise out of two causes of action. The first is based upon the April 1997 Banff National Park Management Plan which was promulgated by Ms. Sheila Copps, as a minister of the Crown, with the signed approvals of the Defendant Mr. Tom Lee (Assistant Deputy Minister of Parks Canada Inc.) and the Defendant Mr. Charles Zinkan (Field Unit Superintendent of Banff National Park). The 1997 Management Plan listed as a goal the prohibition of the operation of the Norquay gondola lift during the summer: here it does not differ from the Long Range Environmental Plan which was in effect when the business licence for summer operation was denied in 1996. The second cause of action is the rejection in September 2000 of an application to use the gondola lift during the summer.
CONSIDERATION
[7] I have considered the overall goal of the Defendants, to have the action struck out, as against the Defendants, with the exception of the Crown and Parks Canada, on the basis of both jurisdiction over and the redundancy of various individual defendants. This approach could clear the way for the estoppel argument, on the second motion, which requires that there be the same parties or privies in both the 1996 and the present proceeding.
Appropriate Defendants
[8] There is sometimes a tendency to take an overly broad approach in designating defendants, with the result that individuals, who might well be witnesses, but ought not to be parties, find themselves named as defendants. Not only may such a defendant be beyond the jurisdiction of the Federal Court, but in the interim, until their status is determined, the practice is a detriment to all, for the result is added complexity, expense, delay and the use of scarce resources, here particularly taxpayers' money and the capacity of the Court.
[9] The style of cause names The Queen "as represented by The Minister of Canadian Heritage For Canada Sheila Copps, and the Said Minister of Canadian Heritage for Canada, ...", thus naming the Minister both in a representative and in a personal capacity. The Statement of Claim, while it does allege inducement of breach of contract, tortious behaviour and abusive behaviour on the part of the Minister, all of that is not, on my reading of that pleading, a claim for something done by Ms. Copps in a personal capacity, but is in connection with the promulgation of a management plan for the Park and a decision to deny the Plaintiff a business licence for the summer operation of its Mount Norquay gondola lift.
[10] The basic proposition is that a Minister of the Crown may not be sued in his or her representative capacity, nor may he or she be sued personally, unless the actions are done in a personal capacity. This is clearly set out in Cairns v. Farm Credit Corp. (1991), 49 F.T.R. 308 (F.C.T.D.) at 310:
The plaintiffs have named the Honourable William McKnight as a defendant in this action. A Minister of the Crown cannot be sued in his representative capacity, nor can he be sued in his personal capacity unless the allegations against him relate to acts done in his personal capacity ( Re Air India (1987), 62 O.R. (2d) 130; 44 D.L.R. (4th) 317 (Ont. H.C.)). As the plaintiffs have made no claims against the Minister relating to actions done in his personal capacity, the Honourable William McKnight must be struck as a party to the action.
Despite the dual capacities, representative and personal, set out in the style of cause, suggesting claims against the Minister of Canadian Heritage and that Minister, Sheila Copps, and for that matter against Superintendent Fisher, Field Superintendent Zinkan, and the Parks Canada Agency Chief Executive Officer, Tom Lee, there are no allegations in the statement of claim of any acts done in their personal capacity: rather those officials are said to have induced breach of contract and acted in a tortious manner and abused their public office, not personally but in an official role, in the promulgation of the Banff National Park Management Plan of 1997.
[11] Here it is interesting to observe that the references to Ms. Copps are all expressly or impliedly to her actions, in the capacity of Minister, in connection with promulgation of the 1997 Management Plan which, as I say, takes the same view of summer gondola operation as the Long Range Management Plan it replaced. Similarly the interest by the Plaintiff in Messrs. Zinkan, Lee and Fisher arise, for the most part, or perhaps entirely, in connection with the promulgation of the 1997 Management Plan. There is then a leap of faith, in the damages claimed, which are against Ms. Copps and Messrs. Zinkan, Lee and Fisher personally.
[12] The Plaintiff does set out in the Statement of Claim that the Defendant Fisher denied a request for a business licence to operate the gondola in the early fall of the year 2000, but then goes on to go through a chain of command, or responsibility, leading to "the Defendant Copps as Minister of Canadian Heritage for the Defendant the Queen in Right of Canada." (paragraph 25 of the Statement of Claim). As I read the Statement of Claim, the wrongs complained of lead through the 1997 Management Plan, to the exercise of discretion by the Chief Executive Officer of Parks Canada Agency leading to the denial of a summer gondola operation business licence in September of 2000.
[13] There is no utility, need or legal basis on which to sue the Attorney General of Canada, in the present context and instance, for the Attorney General of Canada, just as much as the Minister of Canadian Heritage and Parks Canada Agency, is really the Queen in Right of Canada. In the case of Parks Canada Agency, I would also observe that Parks Canada Agency, functions only as an agent of Her Majesty the Queen in Right of Canada: see section 3 of Parks Canada Agency Act, ch. 31 of the Statutes of Canada 1998:
3. There is hereby established a body corporate to be called the Parks Canada Agency, that may exercise powers and perform duties and functions only as an agent of Her Majesty in right of Canada.
However, I recognize that by section 18 actions may be brought against Parks Canada Agency. Beyond that I see no utility in naming Parks Agency Canada "as represented by its Chief Executive Officer Tom Lee" and indeed, this representative phrase goes beyond an irregularity and is at least immaterial and redundant.
[14] It is sufficient to sue the Queen in Right of Canada, without naming the Minister of Canadian Heritage, either as Minister or personally. There can be no suit against the Minister in a representative capacity or personally in the latter instance because her actions were not done in a personal capacity. Further, there is no utility in referring to a department of the Canadian government, here the department of Canadian Heritage, for government departments have no legal existence which is separate from Her Majesty the Queen. The references in the style of cause to the Minister and to Ms. Copps are struck out. Indeed, as pointed out by Mr. Justice Cullen, in Robichaud v. Attorney General of Canada (1991) 44 F.T.R. 172 at 177, Her Majesty the Queen is the only necessary defendant in an action against the Crown.
[15] Turning to the balance of the Defendants, as I have indicated, I have serious difficulty in construing the Statement of Claim as a personal one against Messrs. Lee, Zinkan and Fisher. However, there is apparently that intention, an intention confirmed in the 7 March 2001 letter from Defence counsel to Plaintiff's counsel, referring to abuse of public office in the rejection of the licence application made in 2000. There are also the submissions of counsel for the Plaintiff, who refers to personal liability arising from abuse of public office, inducing breach of contract and tortious interference with business relations in the context not only as to rejection of the licence application, but also against those individuals for their personal roles in drafting the Management Plan of 1997. Thus I should look more closely at the position of the individual defendants: leaving aside whether appropriate elements of those torts are alleged in the statement of claim, I turn to the issue of claims of personal liability against those three employees in the context of the jurisdiction of the Court.
[16] The starting point for Federal Court jurisdiction is ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. [1986] 1 S.C.R. 752. There the Court sets out a three-part test, each part of which is essential in order to found jurisdiction in the Federal Court:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867. (Page 766)
[17] The statutory grant of jurisdiction against the individual defendants is found in section 17(5)(b) of the Federal Court Act. Counsel for the Defendants submits that the second and third parts of the test, the nourishing existing body of federal law and the law of Canada requirement, have not been met, for the allegations against the individual defendants are based on provincial tort and contract common law. More correctly, the allegations are based on tort law, including, taking the point of view of counsel for the Plaintiff, the tort of inducing breach of contract.
[18] In Holt v. Canada [1989] 1 F.C. 522 Mr. Justice McNair dealt with an action in tort claiming damages against the Solicitor General for failing to renew the Plaintiff's appointment as a member of the National Parole Board. The application before Mr. Justice McNair involved amendment of the statement of claim to add, among other individual defendants, a former chairman of the National Parole Board, on the basis that various individuals were needed to ensure that all matters in dispute might be fully adjudicated on by the Court. At issue there, as here, were the second and third criteria from the ITO test. His view on this is set out at pages 531 and 532:
In my opinion, the tortious claims asserted against the individual defendants do not derive from an existing body of federal law governing liability in the context of providing a "detailed statutory framework" sufficient to fasten liability on such defendants. The fact that the defendant Outerbridge was the chief executive officer charged with general supervision over the work and affairs of the National Parole Board is far too fragile a link on which to found jurisdiction against him in his individual capacity. Under the circumstances, I find that the causes of action asserted against the individual defendants are not attributable to any fountainhead source of federal law but rather, if they exist at all, are the emanations of provincial law relating to tortious liability. That being so, the part of the motion seeking leave to add William J. Outerbridge, John Doe and Jane Doe as party defendants is refused.
To come to this conclusion Mr. Justice McNair examined various cases, including Oag v. Outerbridge and Howland [1987] 2 F.C. 511, the Court of Appeal there referring to [1980] 2 S.C.R. 442">Rhine v. The Queen [1980] 2 S.C.R. 442, in which the Chief Justice looked for a detailed statutory framework of federal law under which the appellant acquired rights and that, to have those federal legal rights adjudicated upon, required tort law, a part of the laws of Canada, being elements which often overlap.
[19] A further appropriate reference is Hendricks v. Fairweather and Canada (1991) 45 F.T.R. 171, an action involving a claim for damages because the individual defendant had opposed the renewal of the plaintiff's term as a member of the Immigration and Refugee Board. There Mr. Justice Denault pointed out that section 17(5)(b) did not in itself grant the Court jurisdiction to hear a proceeding against individual defendants, even thought they might be public servants sued jointly with the Federal Crown. He then went on to endorse the view of Mr. Justice McNair in Holt (supra).
[20] Finally, I would refer to Robinson v. Canada (1996) 120 F.T.R. 157, a decision of Mr. Justice Richard, as he was then. In Robinson, an inmate had sued both the Crown and penitentiary officials for damages for breach of Charter rights, civil conspiracy, wrongful and malicious conduct, abuse of authority, defamation and negligence in the performance of duties, all of which, except the Charter rights claim, are common law causes of action. Mr. Robinson, vis-à-vis the individual defendants, was unable to bring himself within a detailed statutory framework, for there was no statutory duty owed. In dealing with the appeal from the prothonotary, Mr. Justice Richard observed at page 161 that:
The prothonotary did not commit an error of law when he concluded that the causes of action asserted against the individual defendants arise from tortious liability and not from a body of federal law. The causes of action asserted against the individual defendants are not attributable to any fountainhead source of federal law, but rather are the emanations of provincial law relating to tortious liability. (Holt v. Canada [1989] 1 F.C. 522; 23 F.T.R. 109 (T.D.); Hendricks v. Fairweather and Canada (1991), 45 F.T.R. 171 (T.D.).
Mr. Justice Richard went on to observe that there was no statutory framework of federal law, under which Mr. Robinson might acquire rights, as was the case in Oag v. Outerbridge (supra). Here I would observe that the present Plaintiff refers not to rights pursuant to statute, but rather to rights under the Norquay lease, which is something very different.
[21] Counsel for the Plaintiff, being well aware of these cases, submits that there is, in fact, a sufficient detailed statutory framework of federal law, beginning with Oag v. Canada (supra). There the individual defendants included the chairman of the National Parole Broad. At the trial level the action was dismissed, as against the individual defendants, on the basis of want of jurisdiction. Here I would note that the Trial Judge did not have the advantage of the Supreme Court of Canada decision in ITO-International Terminal Operators, although it was decided before the Court of Appeal heard Oag. As I understand the Oag case, Mr. Oag was properly on parole, subject to a mandatory supervision provision, a source of freedom founded on federal law. By federal law, Mr. Oag was entitled to enjoy that degree of freedom so long as he fulfilled the terms of his mandatory supervision. In short, he had rights under federal legislation. Mr. Justice Stone, in writing the decision of the Court, referred to Mr. Oag's rights which, if interfered with, sounded in tort, which in turn depended upon the existence of federal law. Thus Mr. Oag's claim fell within the jurisdiction of the Federal Court, pursuant to the case law, including that set out by the Supreme Court in ITO-International Terminal Operators. The key point in Oag is that there was a detailed statutory framework, the framework including mandatory provisions entitling Mr. Oag to the right of a partial degree of freedom, a freedom which might not be interfered with except as provided in the parole legislation. The detailed statutory framework was in turn found in the Penitentiary Act and Parole Act, which provided a statutory right which belonged to Mr. Oag and to no one else.
[22] Analogous facts underlay the Court of Appeal decision in Kigowa v. Canada [1990] 1 F.C. 804. There Mr. Kigowa, a crewman who jumped ship at Nanaimo, B.C., was arrested by immigration authorities. At issue was his action for damages. The three Court of Appeal Judges, in various ways, pointed out that Mr. Kigowa's right to freedom and liberty flowed not from the common law, but from provisions of the Immigration Act. This may be summarized by saying that his rights under the Immigration Act provided the detailed statutory framework.
[23] In Maguire v. Canada [1990] 1 F.C. 742 the plaintiff sought damages against individual fisheries officers who were acting outside the scope of their employment, by reason of alleged misrepresentations. In Maguire Mr. Justice McNair focussed upon whether the law of contract, tort, unjust enrichment, fiduciary obligation and interference with propriety rights bore such an imprint of federal law as to bring the matter within the jurisdiction of the Federal Court. He went on to find that the misrepresentations by the fisheries officers, complained of by the plaintiff, were attributable to their authoritative role under the Fisheries Act. In the result he determined that the individual claims, looked at in a proper context, depended for their existence upon a detailed statutory framework, mainly the Fisheries Act. However, to come to that conclusion he acknowledged that the statute in question must not be simply an enforcement statute, but rather a statute giving rise to the claim founded upon some statutory rights, in that instance the terms and conditions set out in the Act which were applicable to obtaining commercial salmon fishing licences.
[24] In the present instance I do see that the National Parks Act provides either the necessary statutory framework or the equivalent of the rights which the Courts of Appeal found had arisen under federal legislation in Oag, Kagowa and Maguire. However counsel for the Plaintiff refers to rights under the lease and pursuant to the 1996 litigation.
[25] Counsel for the Plaintiff refers to the outcome of a 1996 litigation which involved the Plaintiff's operation, asserting that the Plaintiff was found by Mr. Justice Campbell to have rights in the lands on which his operation is located, categorized as a "restricted contingent right to operate a business on the lands leased." by Mr. Justice Campbell in Peter G. White Management Ltd. v. Canada (1997) 132 F.T.R. 89 at 100. From this viewpoint the submission is that "the plaintiff's right under the Lease arises solely due to federal statute and the ability to enter into the Lease for national park lands under the ... [National Parks Act], and supporting Regulations, as amended." (page 8 of argument).
[26] I do not see Mr. Justice Campbell's comments at pages 98 and 100, "... that what has been conveyed to Banff Mount Norquay is a very restricted contingent right to operate a business on the lands leased.", being a right to use land for very limited purposes as provided in a covenant, and "... what it purchased was a very restricted contingent right to operate a business which was also significantly curtailed when it took over the lease.", to lead necessarily or at all to the "detailed statutory framework" which is required to found jurisdiction in the Federal Court against Crown park employees in the same way as was the situation in Oag, Kigowa and Maguire. In those cases the right claimed was directly founded on and in statute, as opposed to a foundation in a lease of Crown land. The better view is that the individual defendants, in this instance, were carrying out duties under the relevant legislation, but that the Plaintiff's rights, arose under the Norquay lease: the lease, being once removed from parks legislation, does not provide either a right under federal legislation as in Oag, or a detailed statutory framework so as to give jurisdiction, in the Federal Court, over the present individual defendants.
[27] Counsel for the Plaintiff submits that the detailed statutory framework found in the National Park Act by Mr. Justice Evans, as he was then, in Canada v. Crosson (1999) 169 F.T.R. 218 ought to provide jurisdiction. At issue there was the ability of the Crown to collect rent on lease holdings in a park, based on provisions of leases, the National Park Act and Regulations. The difficulty was that a right which the Crown created, in the exercise of its common law contractual capacity, was not founded on federal law. However the granting, amendment and surrender of the leases in question, the appraisal of the property and the various rent options were governed by the National Parks Act and Regulations. He therefore found, in favour of jurisdiction on the part of the Crown, that there was a statutory umbrella casting enough of a shadow so that it might be said that the Crown's claim was based on existing and applicable federal law. Mr. Justice Evans concluded that the Federal Court had jurisdiction over the matter (pages 226 and 277).
[28] The finding in Crosson of a statutory umbrella, in favour of the Crown, allowed the Crown to bring its case within the jurisdiction of the Federal Court. However, it does not follow that a party on the other side comes automatically within that jurisdiction: for example on a counterclaim which must stand alone, or as here, not an action by the Crown within Crosson, but an action against the Crown, each cause of action must stand on its own, a point made by the Court of Appeal in Innotech Pty. Ltd. v. Phoenix Rotary Spike Harrow Ltd. (1997) 215 N.R. 397. Thus, in the present instance, Crosson does not assist, for to find and establish jurisdiction I must look for a statutory framework, which I believe is the equivalent to the statutory umbrella referred to by Mr. Justice Evans in Crosson, in essence a framework giving rise to rights in favour of the Plaintiff. I have already made that test and found nothing of sufficient substance upon which to found jurisdiction over the various individual defendants. Thus the claims against Messrs. Lee, Fisher and Zinkan must be struck out by reason of a failure to satisfy the second branch of the ITO test, the links on which to found jurisdiction, against those individuals in their personal capacities, being far too fragile.
[29] I would also add that the action really being one against the Crown, the presence of the individual defendants, whom I have struck out, would bring little or nothing to the action. I now turn to the real substance of the action, the claim against the Crown and whether that claim has already been litigated and determined.
Issue Estoppel
[30] This is the second proceeding commenced by Peter G. White Management Ltd. to try to obtain summer use of the gondola ski lift at Mountain Norquay. In the first proceeding, a judicial review application, at issue was a decision of the Minister of Canadian Heritage and the superintendent of Banff National Park not to issue a business licence in order to provide for summer use of the gondola. The outcome of that proceeding, Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage) (supra), was a finding that the superintendent of Banff National Park acted fairly and within his jurisdiction when he declined to issue a business licence to the plaintiff allowing summer use of the gondola. To reach this conclusion Mr. Justice Campbell considered the lease and the national park's business regulations, determining that the restricted contingent right to operate a business had been granted, contingent upon a licence to carry on business being issued:
Considering the provisions in the lease and considering the regulations just quoted, I find that what has been conveyed to Banff Mount Norquay is a very restricted contingent right to operate a business on the lands leased. That is, the right to use the land for very limited purposes as provided in the covenant is contingent upon a licence being issued under s.5 of the Regulations. (Page 98)
[31] Mr. Justice Campbell went on to consider the extent of the discretion provided to the superintendent, which he found was very broad, allowing the type of decision which had been made and indeed "... sufficiently broad to act as a restraint on the operation of any business being conducted within a national park, with or without a lease of land from the Crown." (loc. cit.). The Court went on to find that this broad discretion had been properly exercised:
[34] The approach the Superintendent adopted and the degree of investigation he undertook indicates that he intended to and did consider all the factors involved in the summer use proposal, including Banff Mount Norquay's rights under the lease, and not just the LRP policy considerations. Thus, I find that not only did the Superintendent have the discretion to grant the licence, but he believed he had an unfettered discretion to grant the licence. I am completely satisfied that the Superintendent sincerely conducted an extensive analysis of the evidence and the issues and in no way fettered his discretion. Accordingly, I find that the discretion to issue the licence was properly exercised. (Pages 100-101)
[32] There are also passages in the decision of Mr. Justice Campbell which might assist the Plaintiff and which I have considered. For example, Mr. Justice Campbell refers to a decision of the Minister, which from the footnotes to the reasons may have been relayed by telephone to Mr. White during conversations with ministerial aides on 23 and 24 July 1996 and which apparently included the denial by the Minister of a proposal made by the Plaintiff on 12 July 1996. Mr. Justice Campbell is adamant that the only decision under review was that of 2 July 1996 and that only evidence arising before that date should properly be considered (page 96). Further, Mr. Justice Campbell observed at page 100, in the context of the considerations that the superintendent was obliged to consider, that the business operations of the plaintiff were factors which must be taken into consideration, "But as to the weight to be given to these factors, there is no doubt that each case turns on its own merits.". From this, the Plaintiff says, it follows that the proposal made in the year 2000 by the Plaintiff involved new circumstances and that the decision made in the year 2000 was made when new circumstances were in play. I do not see that new circumstances are in play: rather it is essentially the same park policy, the same Norquay lease and the same broad discretion of the superintendent of Banff National Park which are involved.
[33] Before analysing the estoppel argument I would also observe that there are parallels and similarities between the judicial review application being Mr. Justice Campbell's decision and the present Statement of Claim, just as there are differences in those two documents. However I have also kept in mind that it is the central or fundamental issue which bears on whether or not the same question has been decided in the 1997 decision as is set out in the present Statement of Claim. I now turn to the principles of and some basic law bearing on issue estoppel.
[34] The principle upon which issue estoppel, which is a branch of the doctrine of res judicata, is founded is that there should not be unnecessary re-litigation so as to vex a defendant more than once over the same issue and so as to needlessly strain the resources of all concerned, including those of the Court. The area of res judicata is explained in the following passage from Sopinka on the Law of Evidence in Canada, 2nd Edition, 1999, Butterworths at page 1078:
There are two principles subsumed under the heading res judicata. The first is that any action or issue which has been litigated and upon which a decision has been rendered cannot be retried in a subsequent suit between the same parties or their privies. This principle prevents the contradiction of that which was determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed.
The second principle makes it mandatory that a plaintiff asserting a cause of action must claim all possible relief in respect thereto, and prevents any second attempt to invoke the aid of the courts in the same cause. It is sometimes called "merger" because the plaintiff's cause of action becomes "merged" in the judgment. The judgment actually operates as a comprehensive declaration of the rights of all parties in respect of the matters in issue.
[35] To apply this principle one must first isolate the issue at stake. 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: see for example Patel v. Canada (Canadian Human Rights Commission), an unreported 2 September 1999 decision of the Federal Court of Appeal in A-546-96. In Patel earlier judicial review proceedings, in which the Court determined that the complaint at issue had been properly handled by the Commission, acted as an estoppel against the subsequent action for damages based on alleged wrongdoing on the part of the Commission and its agents. Relevant here is the penultimate paragraph in the decision:
In addition, it had already been finally decided in the judicial review proceeding of January 30, 1996 that there had been nothing reprehensible in the manner in which the Commission or its agents had fulfilled their legal duties with respect to the appellant's complaint. That decision may not, in itself, give rise to a cause of action estoppel since the nature of a judicial review proceeding is different from that of an action in damages. However, as the judicial review proceeding had definitively disposed of the central allegation in the action for damages, namely that, as a result of wrong doings on the part of the Commission and its agents, the complaint had been badly investigated and treated, it gives an obvious basis for an issue estoppel that makes the actions all the more unreceivable.
[36] Important here is that the earlier judicial review in Patel did not, by its different nature from an action, give direct rise to an issue estoppel, but by disposing of the central allegation in the second proceeding, an action for damages, it formed a clear basis for issue estoppel. While there may thus be clear basis for an issue estoppel, where one proceeding is judicial review and the other is by way of an action, one must look at the test for issue estoppel to determine if it does in fact arise in the present instance.
[37] The classic test for issue estoppel is that set out in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] A.C. 853 (H.L.) at 935:
The requirements of issue estoppel still remain (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.
This test has been universally adopted by the Canadian courts including in [1975] 2 S.C.R. 248">Angle v. Minister of National Revenue [1975] 2 S.C.R. 248 at 254 and Danyluk v. Ainsworth Technologies Inc. (2001) 201 D.L.R. (4th) 193 at 207.
[38] Certainly Mr. Justice Campbell's judicial review decision was final, the appeal having been discontinued. Further, having struck out the individual Defendants, the Minister, the Attorney General, leaving Her Majesty the Queen in Right of Canada and her statutory agent, Parks Canada Agency, no issue arises as to privies and thus I do not need to examine the line of cases dealing with the degree of identification between the respondents in the judicial review proceeding and the Defendants, in the present instance. The more involved aspect is whether the fundamental issue is the same in both the judicial review proceeding and in the present action.
[39] The parties characterize the fundamental issue or, in the case of the Plaintiff, fundamental issues, differently. Counsel for the Plaintiff submits that at issue now, as against the Queen, are breach of contract, regulatory expropriation, a failure of good faith and breach of contractual expectations arising out of the promulgation of the 1997 Management Plan. The many causes of action claimed against the individual Defendants are no longer directly relevant, in that those Defendants are no longer part of this proceeding, however based on the Statement of Claim itself and not on the relief sought, there is perhaps a carry-over as against the Crown of the cause of action of tortious interference with business relationships. The fundamental issue is in reality the sum of all these causes of action. I do not see any of this as radically different from the essence or fundamental issue that Mr. Justice Campbell dealt with for all of the causes of action suggested by the Plaintiff lead to the same fundamental issue. I say this notwithstanding a difference, on the one hand, in the nature of judicial review and, on the other hand, the nature of an action in contract, tort, breach of duty or obligation or any other cause of action or enforceable claim for or about injury. Here I would make reference to the decision of Madam Justice of Appeal Abella in Rasanen v. Rosemount Instruments Ltd. (1994) 112 D.L.R. (4th) 683, leave to appeal denied (1995) 178 N.R. 80, an action which involved the final decision of a referee and an appeal which the Trial Judge dismissed on the basis of issue estoppel. The Referee in dealing with compensation arising from the termination of employment was held to have decided the central question in the litigation, of whether or not entitlement existed in the wrongful dismissal action, or as put by Madam Justice Abella:
In my view, the question to be decided in these proceedings is the same question that was, and was necessarily, decided in the earlier Employment Standards Act proceedings: was there any entitlement by the employee to compensation from the employer arising from the termination of his employment? (Page 703)
Madam Justice Abella then went on to make a pertinent observation, that while the nature and wording of issues in two litigations may differ, if the fundamental issue, an issue so fundamental to the earlier decision that it could not stand without that issue being determined, remains the same, issue estoppel will apply:
There is no doubt that under the Employment Standards Act this question has a different linguistic and quantitative formulation than at common law. But a different characterization and process does not, in this case, mean a different question.
The employee's entitlement to termination pay in both proceedings required a determination of whether the employer fundamentally violated a duty arising from the employment relationship giving rise to liability and compensation. The process under the Employment Standards Act ended with a dismissal of the employee's claim because of findings that reasonable alternative employment was available and that the employer acted in good faith. The question of whether there was entitlement to termination pay was accordingly answered in the negative. These are the same questions that were to be answered in the appellant's wrongful dismissal proceeding. The questions are not only the same, they are fundamental to the decision. (loc. cit.).
The point is that one must look to see whether the questions are not only the same, but whether they are also fundamental to the decision.
[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.
[41] The present action, as set out in the 28 February 2001 Statement of Claim, by which the Plaintiff seeks to obtain damages, is based upon the National Parks Act; the terms of the Plaintiff's lease; the current and similar long range plan for the park; the July 1996 refusal of the summer business licence to operate the gondola; and a second refusal by the Crown on 6 September 2000 to a request for summer use of the gondola. This is again the same fundamental issue, as decided by Mr. Justice Campbell, summer use of the gondola: here I have not lost sight of the Banff National Park Management Plan 1997, but that does no more than set out what was the situation by reasons of the Long Range Management Plan before the 1996 decision of Mr. Justice Campbell.
[42] Counsel for the Attorney General points out that even though the moving party, for example here the Defendants on a motion to strike out by reason of issue estoppel, is able to establish conditions for such an estoppel, the Court must exercise its discretion and determine if the issue estoppel ought to be applied. In essence, even though there is a clear foundation for issue estoppel, it may, in some circumstances, be unjust to apply the doctrine: counsel refers to Danyluk v. Ainsworth Technologies Inc. (2001) 201 D.L.R. 193 (S.C.C.).
[43] In Danyluk the appellant had filed a complaint under the Labour Standards Act seeking $300,000 in unpaid commissions. The employer dismissed Ms. Danyluk. Ms. Danyluk then commenced a civil action for wrongful dismissal, unpaid wages and the commissions. Subsequently an employment standards officer conducted a hearing, but botched the hearing process and in the outcome awarded two week's pay. The Courts below held that the appellant's failed attempt to secure her commission before the labour standards officer put in place the bar of issue estoppel. Mr. Justice Binnie began his decision, in relation to issue estoppel, by observing that "A judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice." (page 198). In commencing his analysis in Danyluk Mr. Justice Binnie observed that:
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the [Employment Standards Act] as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. (Page 204)
In his analysis Mr. Justice Binnie concluded that the preconditions to issue estoppel had been met, but that the application of issue estoppel was not inflexible.
[44] Mr. Justice Binnie observed that issue estoppel should not be mechanically applied, but should be considered in two steps, first to determine whether the preconditions for estoppel have been met and then, assuming that to be the case, whether, as a matter of exercise of discretion, issue estoppel ought in fact to be applied:
The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in [1975] 2 S.C.R. 248">Angle, supra. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.), at para. 32; Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at paras. 38-39; Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (1999), 176 N.S.R. (2d) 173 (C.A.), at para. 56. (Pages 209-210)
[45] This discretion arises because issue estoppel, unlike the common law doctrine of res judicata, is an equitable doctrine, on the one hand an implement of justice and on the other hand a protection against injustice (pages 217-218 of Danyluk). Thus the discretion, in the case of issue estoppel, to look at the circumstances and realities of each case.
[46] Turning to the exercise of discretion, I note the caution, at page 217, that the discretion, in the context of proceedings in a court, has limited application but that "... the discretion is necessarily broader in relation to the prior decisions of administrative tribunals because of the enormous range and diversity of the structures, mandates and procedures of administrative decision -makers.". Thus, in the present context, the discretion must be applied in the more limited manner.
[47] Mr. Justice Binnie suggests, at page 219, that the factors applicable to determining the propriety of applying the discretion and avoiding the finality of issue estoppel are open-ended. For his purposes they included an examination of the statute at issue, the availability of an appeal, safeguards in the administrative procedure, the expertise of the administrative decision-maker, the circumstances giving rise to the administrative proceedings and the potential injustice. Of course some of these factors were dictated by the nature of the earlier decision, that of a tribunal. In the present instance the earlier decision is that of this Court.
[48] Relevant factors bearing on the exercise of discretion in this instance are the availability of an appeal, the circumstances giving rise to the earlier proceeding, and the potential of injustice, from the points of view of both sides.
[49] Certainly the Plaintiff was in a position to appeal the decision of Mr. Justice Campbell, but discontinued that appeal.
[50] The circumstances giving rise to the earlier proceeding, heard by Mr. Justice Campbell, do not give rise to any vulnerabilities or perceived weaknesses in the procedure: there are no grounds there for the exercise of discretion.
[51] As to the potential for injustice, that must be considered from the points of view of both sides. Certainly the Plaintiff had every opportunity to make its case before Mr. Justice Campbell. The fact that the appeal was abandoned indicates, among other things, that the procedure adopted by Mr. Justice Campbell and his decision were both fair. From the point of view of the Crown, a defendant ought not to be vexed more than once over the same matter. However and I think this is most important, the earlier holder of the Norquay lease, the predecessor in title to the present Plaintiff, gave up summer operation of the gondola in return for good and valuable consideration, being more land from which to mount its winter operation and this transaction was known to the present Plaintiff at all relevant times. I see no utility in re-litigating the same fundamental issue.
CONCLUSION
[52] To remove parties on the basis of want of jurisdiction and to strike out on the basis of estoppel are both well recognized approaches. In the former instance, the lack of jurisdiction must be plain and obvious: see for example Hodgson v. Ermineskin Indian Band (2000) 180 F.T.R. 285 at 289 (F.C.T.D), affirmed (2000) 267 N.R. 143 (F.C.A.) and leave to appeal refused (2001) 276 N.R. 193 (S.C.C.) and Charlie v. Vuntut Gwitchin Development Corp. (2002) 218 F.T.R. 116.
[53] In the latter instance see, as an example of striking out on the basis of issue estoppel, Gajic v. Minister of National Revenue (1998) 148 F.T.R. 198, upheld [1998] 4 C.T.C. 189 (F.C.T.D.) and [2000] 2 C.T.C. 300 (F.C.A.). In such instances the issue estoppel must be such that it is clear and beyond doubt that the Plaintiff is estopped from making the further claim.
[54] The standard for striking out, either by way of want of jurisdiction, or on the ground of issue estoppel, is essentially that set out in the well-known trilogy of cases, Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959, Operation Dismantle Inc. v. The Queen [1985] 1 S.C.R. 441 and [1980] 2 S.C.R. 735">Attorney General of Canada v. Inuit Tapirisat of Canada [1980] 2 S.C.R. 735: it must be plain, obvious and beyond doubt that the case will not succeed.
[55] The strict standard set out in the cases for striking out, which allows somewhat doubtful and dubious cases to proceed, when the grounds set out in Rule 221 and the test applied to those grounds are not strictly met, can be difficult to establish and to apply in matters involving jurisdiction and issue estoppel. In such instances often one cannot be so dogmatic and certain that a given proceeding plainly, obviously and beyond doubt cannot succeed. However the present instance does not give rise to such doubt either on a jurisdictional basis or on an issue estoppel basis. Plainly, obviously and beyond doubt not only is the proper Defendant, Her Majesty the Queen and possibly Parks Canada Agency, but also it is plain, obvious and beyond doubt that because of want of jurisdiction the claim against the balance of the Defendants cannot not succeed. Similarly, by reason of issue estoppel, it is plain, obvious and beyond doubt that the claim against Her Majesty the Queen and Parks Canada Agency cannot succeed.
[56] The action is struck out. One set of costs to the individual Defendants on the first motion and one set of costs to the Crown on the second motion.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-363-01
STYLE OF CAUSE: Peter G. White Management Ltd. v.
Her Majesty the Queen et al
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: October 10, 2002
REASONS FOR ORDER : Hargrave P.
DATED: March 4, 2004
APPEARANCES:
Mr. Bruce Mellett and FOR PLAINTIFF
Ms. Jacqueline Cullen
Mr. Kirk N. Lambrecht, Q.C. FOR DEFENDANTS
SOLICITORS OF RECORD:
Bennett Jones LLP FOR PLAINTIFF
Calgary, Alberta
Mr. Morris Rosenberg FOR DEFENDANTS
Deputy Attorney General of Canada
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