Abbott v. Canada, 2002 FCT 186

Date: 20020225

Docket: T-1168-96

Neutral citation: 2002 FCT 186

Vancouver, British Columbia, this 25th day of February, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                       ALLISON G. ABBOTT, MARGARET ABBOTT

and MARGARET ELIZABETH McINTOSH

Plaintiffs

- and -

HER MAJESTY THE QUEEN

Defendant

- and -

CANADIAN PACIFIC HOTELS CORPORATION

Intervenor

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is a motion, pursuant to Rule 51(1) of the Federal Court Rules, 1998, to appeal the Order of Prothonotary Hargrave, dated March 26, 2001 in which the Prothonotary answered in the affirmative to two questions of law relating to whether the Crown had authority to grant perpetually renewable leases.

[2]                 Prothonotary Hargrave has correctly and succinctly set out the background to this motion and I propose to adopt and quote that part of his reasons dealing with this background which includes references to legislation and case law.

[3]                 Prothonotary Hargrave stated:

[1]            This action by representative Plaintiffs initially arose out of various leases granted to Riding Mountain National Park cottages owners. The Crown, to put the simplest face on the action, seeks to set aside as void various leases saying, in effect, that for some sixty years the Crown, mistakenly and improperly, granted leases with rights of renewal and thus, subject to the doctrine of severability, the leases are null and void.

[2]            The action took on a broader aspect with the intervention of Canadian Pacific Hotels Corporation ("CP Hotels"), who hold leases, some going back to the 1890s, with rights of renewal, at Lake Louise and in Banff National Park.

[3]            In the hope of avoiding an extensive trial, the Defendant seeks determination of two points of law:

1.              Did the Defendant have legal authority to grant the Plaintiffs leases containing perpetual renewal clauses at the time such leases were granted?

2.              If the Crown had no legal authority to grant the Plaintiffs leases containing perpetual renewal clauses at the time such leases were granted, is there a basis at law as disclosed in the Amended Statement of Claim available to the Plaintiffs in relation to the perpetual renewal clauses as against the Defendant, based on the course of conduct of the parties in relation to the leases since their original granting?

The answer to these questions will also impact on the position of the Intervenor, CP Hotels, the holder of highly developed leased land at Banff and at Lake Louise. The determination begins with consideration as to precisely what legislation, acts, and regulations were in effect governing the lease granting powers of the Crown. However, before considering these questions, both of which I answer affirmatively, I will set out some of the background and touch upon some pertinent case law.

BACKGROUND

[4]            By way of background I will begin chronologically first referring to legislation affecting CP Hotels and then to legislation affecting both CP Hotels and the Plaintiffs. In 1892, 1893 and 1906, the Canadian Pacific Railway Company (The "CPR"), predecessor to the Intervenor, CP Hotels, entered into four leases of land. This land was part of an area which had been set aside as a "public park and pleasure ground", known as the Rocky Mountain Park of Canada, pursuant to the Rocky Mountain Park Act of Canada of 1887, 50-51 Victoria, c. 32. Regulations, pursuant to the Rocky Mountain Park Act of 1887 were adopted by Order in Council of 30 June 1890.

[5]            The Rocky Mountain Park Act of 1887, section 4, put the control and management of the park under the Minister of the Interior, with the Governor in Council to make regulations. Section 4(c) allowed the Minister of the Interior and the Governor in Council to make regulations for various purposes including, as set out in 4(c):

The lease for any term of years of such parcels of land in the park as he deems advisable in the public interest, for the construction of buildings for the ordinary habitation and purposes of trade and industry, and for the accommodations of person resorting to the park;

[6]            A 30 June 1890 Order in Council, being the regulations pursuant to the Rocky Mountain Park Act, provided, among other things, for leases not exceeding forty-two years, with the right of renewal, at rentals to be, from time to time, fixed by the Minister:

14. The Minister of the Interior shall have power to cause such portions of the Park as from time to time he may designate to be surveyed and laid out in building lots, for the construction thereon of buildings for ordinary habitation and purposes of trade and industry, and for the accommodations of persons resorting to the Park, and may issue leases for such lots for any term, not exceeding forty-two years, with the right of renewal, at rentals to be, from time to time, fixed by him; also to set apart such portions of the Park as he may think proper for the sites of market-places, jails, court houses, places of public worship, burying-grounds, benevolent institutions, squares and for other similar public purposes.

[7]            The initial four leases entered into by the CPR, between 1892 and 1906, are referred to by the parties as group one leases. They were pursuant to the 30 June, 1890 Order in Council, which specifically provided for renewal of the leases.

[8]            Group two consists of a 1 January 1911 lease granted to the Canadian Pacific Railway Company and is pertinent to the Lake Louise operation of CP Hotels. This lease was under the authority of the Dominion Forest Reserves and Parks Act of 1911, 1-2 Geo. V. c. 10. Earlier regulations of 1909, P.C. 1340, were re-established pursuant to an Order in Council of 6 June 1911, being the regulations under the Dominion Forest Reserves and Parks Act. Rather than set out this material, I will merely note that section 18(2) of the Dominion Forest Reserves and Parks Act and section 2 of Order in Council PC 1340 are essentially the same as set out in the Rocky Mountain Parks Act of 1887 and the related Order in Council of 30 June 1890. Thus, there was a right of renewal by regulation.

[9]            The third category consists of a lease of 2 April 1948, pursuant to the National Parks Act, S.C. 1930, c. 33, a lease that has been renewed and is still in force at the present time. A second lease in this group is that of 25 June 1952, when the National Parks Act of 1930 as amended, was in force. The National Parks Act of 1930 (the "Parks Act of 1930") allows the Governor in Council to make regulations for the granting of leases in town sites for the purpose of residence and trade. Order in Council PC 5045, of 8 December 1947, provides that leases may be issued by the Minister for any term not exceeding forty-two years. This lease relates to Banff and was initially in the name of Brewster Transport Company Ltd. as lessee.

[10]          There is a fourth category of CPR Lease, being one entered into 20 August 1956, to Canadian Pacific Railway Company, entered into while the National Parks Act, R.S.C. 1952 c. 189, as amended S.C. 1953 c. 6 was in force. The relevant Order in Council is PC 1954-1918, of 8 December 1954. The terms in the Nation [sic] Parks Act of 1952 are essentially those in the National Parks Act of 1930 and the Order in Council of 8 December 1947, PC 5045, with the 1952 Act and 1947 Regulations being slightly broader.

[11]          All of the leases in the foregoing four categories, which are presently held by CP Hotels, initially contained perpetual renewal provisions.

[12]          As to the leases referred to by the Plaintiff, leases in Riding Mountain National Park, all were granted between 1934 and 1959 each being for the forty-two years and each containing a perpetual renewal provision. The Plaintiffs submit that the first piece of legislation bearing on their claim is the Dominion Forest Reserves and Parks Act of 1911. The applicable regulations under the 1911 Act are orders in council P.C. 2028 (8 August, 1913) amended by P.C. 1935 (20 April 1916), P.C. 675 (26 March 1918), P.C. 674 (29 March 1919), P.C. 1553 (11 August 1927) and P.C. 890 (29 May 1929). Also referred to, but irrelevant so far as the Plaintiffs are concerned, is P.C. 1340 of 21 June, 1909, being regulations passed under the Rocky Mountains Park Act. Finally, there is the Parks Act of 1930, section 9(1) of which continues all regulations made under the Dominion Forest Reserves and Parks Act, which would include P.C. 2028.

[13]          Section 7(1) of the Parks Act of 1930 provides that the Governor in Council may grant leases including those for the purpose of residence. Nothing in that Act prohibits the grant of a perpetually renewable lease.

[14]          P.C. 2028, referred to above and continued by the Parks Act of 1930, authorizes the Minister of the interior to lease summer resort lots and by section 64, subsection (c) of the Conditions governing leases, the Minister may grant leases of forty-two years duration, "...renewable in like periods at a rental to be fixed by the Minister". Subsequently, Order in Council P.C. 1452 of 23 June 1930, sought to harmonize the regulations in existence. P.C. 1452 rescinded or amended various Orders in Council, but does not refer to P.C. 2028 as either rescind [sic] or amended. Also important here is that P.C. 1452, enacted under the Rocky Mountain Parks Act and applicable only to Yoho Park, Glacier Park, Jasper Park and Elk Island Park, does not diminish the authority of the Minister granted by Order in Council 2028, promulgated under the Dominion Forest Reserves and Parks Act of 1911. P.C. 2028, which may have been repealed at a date after the last lease in issue was granted, is one foundation of the position of both Plaintiffs and Intervenor: as pointed out by Driedger on the Construction of Statutes, 1994, Butterworths, Toronto, and leaving aside for the moment the concept of implied repeal, "a statute is not repealed, nor does it expire, through the passage of time or lack of use or by reason of obsolescence." (Page 492) and that "In other words, the repeal of an enactment does not destroy any right, privilege, obligation or liability arising under the repealed enactment...." (Page 526), referring to section 43 of the Interpretation Act.

[15]          A more recent piece of legislation is P.C. 5045 of 8 December 1947, under the Parks Act of 1930. Section 6(1) of those Regulations provides that "leases for lots in town sites and sub-divisions may be issued by the Minister for any term not exceeding forty-two years". That section goes on to provide that "all lease and licence forms shall be approved by the Deputy Minister of Justice".

[16]          The next legislation referred to is P.C. 1918 of 8 December 1954, which revoked P.C. 5045. Section 3(1) of P.C. 1918 provides that:

Where the value of a lot in a town site or sub-division is less than five thousand dollars, a lease of such lot for any term not exceeding forty-two years may be issued ... by the Minister; ...

All lease and licence forms are to be approved by the Minister: section 3(3). P.C. 1100, of 1958, amended section 3(1) of P.C. 1918 to make it clear that the value of $5,000.00 referred to land value only.

[17]          Here I would again note that the leases at issue, from the point of view the [sic] Plaintiffs, were made between 1934 and 1959. The final lease to the Canadian Pacific Railway Company was granted in 1956. Thus it is not necessary to consider regulations enacted after 1959, for the Supreme Court of Canada, in The Queen v. Walker, made it clear that Regulations passed after a lease has been granted cannot retroactively modify or take away terms already created and embodied in such a lease: see page 667 of Walker, where Mr. Justice Martland adopted a passage from In re: Athlumney:

Perhaps no rule of construction is more firmly established then [sic] this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise then as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.

Mr. Justice Wright, in Athlumney, went on to add:

If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. (loc cit)

In The Queen v. Walker, Mr. Justice Martland went on to note that the Parks Act of 1930 and applicable Regulations did not purport to take away and ought not to be construed so as to take away rights which respondent lessees of parks land already held. I will not turn to my analysis, beginning with an overview of the position taken by the Crown as to its ability to enter into the leases with both the Plaintiffs and the Intervenor, CP Hotels: the Defendant says that it did not have the ability to enter it into leases with perpetual renewal clauses after 1930.

Appellant's Submissions

[4]                 The defendant requests that the two issues before the Prothonotary be re-evaluated by a judge, exercising his or her discretion de novo, and that they both be answered in the negative.

[5]                 The defendant submits that The National Parks Act S.C. 1930, c. 33 ("Parks Act of 1930") specifically restricted the Crown's ability to lease lands situated in a National Park, as the leases were, to a term "not exceeding forty-two years". The defendant contends that the Parks Act of 1930 contains purposive and restrictive wording, requiring that lands in National Parks be left "unimpaired" for the enjoyment of future generations of the people of Canada (section 4), and that no such lands shall be disposed of . . . except under the authority of the Act or regulations made hereunder" (subsection 6(1)). Thus, the defendant contends that the Crown did not have the statutory authority to grant perpetual renewal rights in leases granted after 1930, and so subject to the doctrine of severability, the leases are null and void.

[6]                 Furthermore, the defendant contends that no course of conduct between the contracting parties, nor the passage of time, can cure or give effect to a contract with the Crown which is contrary to statutory authority.

Respondent's Submissions

[7]                 The plaintiffs seek an Order answering issue one in the affirmative, namely that the defendants had legal authority to grant leases with perpetual renewal clauses. However, if necessary in relation to issue two, the plaintiff contends that given the Crown's conduct, the Crown should be estopped from denying its authority to enter into perpetually renewable leases.

Intervenor's Submissions

[8]                 The intervenor submits that unless there is a mistake in law or in fact, that is vital to the final issue of the case, this Court should give deference to the Prothonotary's decision. The intervenor submits that the decision of the Prothonotary was not vital to the final issue of the case because this is not a situation where both possible outcomes of the motion would be determinative of the main action. The intervenor submits that irrespective of the outcome of this motion, there are still ongoing actions set forth in the amended statement of claim.

[9]                 The intervenor submits that the question of whether the leases are null and void is not before the Court on this motion, nor was it properly before the Prothonotary.

[10]            The intervenor submits that to determine issue one, the Court must first look at the statutory mandate, such as the Parks Act of 1930 under section 6, and then look to see whether any specific restrictions were subsequently enacted.

[11]            The intervenor submits that in [1970] S.C.R. 649">R. v. Walker [1970] S.C.R. 649, the Supreme Court of Canada held that P.C. 2028 applies to all parks and leases then existing and new ones that were created after that time (which includes all the lands at issue in this proceeding).

[12]            The intervenor submits that when the governing statute allows leasing (as in this case), actual or ostensible authority of the Crown will be found as long as there are no express restrictions in the regulations or other legislation that would prohibit the act that the Crown undertakes. The intervenor submits that there are no express restrictions on renewal clauses and thus the Crown had authority to enter into leases with renewal clauses.

[13]            In the event that issue one is not determinative of this motion, the intervenor submits that there have been decades, and even centuries, of reconfirmation of the initial renewable grants to CP Hotels and the plaintiffs. The intervenor submits that it is clear, by the initial and continual investments in the properties and the surrendering of land in exchange for renewable leases, that the intervenor and plaintiffs have relied on the renewal clauses to their detriment. The intervenor submits that the Crown should be estopped from denying its authority to enter into perpetually renewable leases.

Issue

[14]            Should an appeal of the Prothonotary's decision be allowed?

Standard of Review

[15]            The law followed by this Court when reviewing or deciding appeals from a discretionary decision of a Prothonotary is clearly set out by McGuigan J.A. in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.) at pages 462 - 463:

I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourciere J.A. in Stoicevski v.Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:

(a)             they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

(b)            they raise questions vital to the final issue of the case.

Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.

And at pages 464 - 465:

In Canada v. "Jala Godavari" (The) (1991), 40 C.P.R. (3d) 127 (F.C.A.), this Court in an obiter dictum stated the rule the other way around, seeking to emphasize the necessity for the exercise of the Judge's discretion de novo, in contradistinction to the view that was at that time gaining acceptance in the Trial Division that the prothonotary's discretion should be followed unless he had committed error of law. Jala Godavari should not, I think, be read as meaning that the prothonotary's discretion should never be respected, but rather that it is subject to an overriding discretion by a judge where the question involved is vital to the final issue of the case. (Error of law is, of course, always a reason for intervention by a judge, and is not in any way in controversy).

Now, in the case at bar, what kind of interlocutory order was in question? The appellant urged this Court to follow Stoicevski, but was unable to explain in argument why the prothonotary's decision here was not on a question vital to the final issue of the case. The formulations both of Lord Wright and Lacourciere J.A. underline the contrast between "routine matters of pleading" (Lord Wright) and "a routine amendment to a pleading" (Lacourciere J.A.) [italics added] and questions vital to the final issue of the case, i.e., to its final resolution.

The question before the prothonotary in the case at bar can be considered interlocutory only because the prothonotary decided it in favour of the appellant. If he had decided it for the respondent, it would itself have been a final decision of the case: A-G of Canada v. S.F. Enterprises Inc. et al. (1990), 90 DTC 6195 (F.C.A.) at pages 6197-6198; Ainsworth v. Bickersteth et al., [1947] O.R. 525 (C.A.). It seems to me that a decision which can thus be either interlocutory or final depending on how it is decided, even if interlocutory because of the result, must nevertheless be considered vital to the final resolution of the case. Another way of putting the matter would be to say that for the test as to relevance to the final issue of the case, the issue to be decided should be looked to [page 465] before the question is answered by the prothonotary, whereas that as to whether it is interlocutory or final (which is purely a pro forma matter) should be put after the prothonotary's decision. Any other approach, it seems to me, would reduce the more substantial question of "vital to the issue of the case" to the merely procedural issue of interlocutory or final, and preserve all interlocutory rulings from attack (except in relation to errors of law).

[16]            In the present case, the Prothonotary was called upon to determine two questions of law which whose determination are questions vital to the final issue of the case. I must therefore exercise my discretion de novo.

Analysis

[17]            For ease of reference, the first question answered in the affirmative by the Prothonotary is repeated:

Did the defendant have legal authority to grant the plaintiffs' leases containing perpetual renewal clauses at the time such leases were granted?

The defendant alleges that the Prothonotary was in error, in holding that the Crown had the authority to grant such leases, for a number of reasons including:

1.          The National Parks Act, S.C. 1930 c. 33 ("National Parks Act of 1930") specifically restricted the Crown's ability to lease lands in a National Park, as the leases were, for a term "not exceeding forty-two years".

2.          The Crown had no authority to enter into a lease or contract with a perpetual renewal clause.

[18]            In his decision, the Prothonotary made reference to Order-in-Council P.C. 2028 (August 8, 1913) which was passed pursuant to the Dominion Forest Reserves and Parks Act of 1911, supra and which states in subsection 64(c):

64. The Minister is authorized to lease lands for and under the conditions hereinafter provided:-

(a) . . .

(b) . . .

(c) summer resort lots

conditions governing the leasing of lands for above purposes:

(a) . . .

(b) . . .

(c)             Leases for building lots within duly establishes summer resorts, on such form as is approved by the Minister, may be granted for a period of forty-two years renewable in like periods at a rental to be fixed by the Minister. Such rental shall be subject to readjustment in the year 1920 and at the end of each period of ten years thereafter.

[19]            According to the Prothonotary's decision, P.C. 2028 was never repealed although other regulations were repealed by Order-in-Council P.C., 1452 of 23 June 1930. As well, by subsection 9(1) of the Parks Act of 1930, all regulations made under the Dominion Forest Reserves and Parks Act, of 1911, 1-2 Geo. V. c. 10, which includes P.C. 2028, were continued under the Parks Act of 1930. Subsection 9(1) reads:

[20]            Section 10 of the same Act repealed section 21 of the Dominion Forest Reserves and Parks Act, supra which was the section which granted the authority to make regulations. The defendant argued that there was no longer any remaining authority for P.C. 2028.

[21]            None of the statutory provisions or the regulations specifically limited the authority of the defendant to enter into leases with a perpetual renewal clause.

[22]            By Order-in-Council dated December 8, 1947, (P.C. 5045), P.C. 1340 of 1909 was entirely revoked and replaced, in part, by the following regulation:

6.(1) Leases for lots in townsites and subdivisions may be issued by the Minister for any term not exceeding forty-two years.

[23]            The defendant submits that the lack of mention of renewal indicates that the defendant cannot grant a lease with a perpetual renewal clause.

[24]            The Prothonotary in his decision found that the defendant had authority under the legislation to grant leases with perpetual renewal clauses when the leases were granted. He based this firstly on the existence of P.C. 2028 which he found had continued as a regulation under the Parks Act of 1930 by virtue of subsection 9(1) of the Parks Act of 1930. In my opinion, this is a correct finding.

[25]            The Prothonotary also found that even if the amending provisions affected P.C. 2028 after 1947, then by the regulations, the form of lease was to be approved by the Deputy Minister of Justice who would have seen the perpetual renewal clause in the lease. The prothonotary stated further that since the Crown used forms of lease between 1930 and 1959 with perpetual renewal clauses in them, it would be a sort of impeachment for the Crown now to say that the forms were incorrect or that its officials had no authority to issues leases with perpetual renewal provisions (see R. v. [1970] S.C.R. 649">Walker, supra at pages 661 - 662).

[26]            The Prothonotary quite correctly noted that there was no statutory prohibition stating that the Minister could not enter into a lease that contained a perpetual renewal clause. As well, the legislation gave the Minister authority to lease park lands. The Minister was free to decide which clauses to put in the lease, including whether to put in a perpetual renewal clause. The Minister was able to enter into any contract not prohibited by the legislation, and once entered into, the contract was binding on the Crown (see Bank of Montreal v. Attorney General of Quebec (1979), 96 D.L.R. (3d) 586 (S.C.C.)).

[27]            There was some suggestion before the Prothonotary that a perpetually renewable lease might be void. That proposition is not correct. Although the Court may not favour perpetual renewal clauses, the Court will recognize such a clause if the clause is properly expressed (see Williams & Rhodes, Canadian Law of Landlord and Tennant, 6th ed. (Toronto: Carswell, 1988) at pages 14 - 26).

[28]            I am of the opinion that Prothonotary Hargrave was correct in answering the first question in the affirmative.

[29]            The second question is repeated here for ease of reference.

If the Crown had no legal authority to grant the Plaintiffs leases containing perpetual renewal clauses at the time such leases were granted, is there a basis at law as disclosed in the Amended Statement of Claim available to the Plaintiffs in relation to the perpetual renewal clauses as against the Defendant, based on the course of conduct of the parties in relation to the leases since their original granting?

[30]            The Prothonotary based his affirmative answer to the second question on equitable estoppel. The elements of estoppel were stated by the House of Lords in Greenwood v. Martins Bank Ltd. [1933] A.C. 51 (H.C.) at page 57:

The essential factors giving rise to an estoppel are I think:

(1.)           A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made.

(2.)           An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made.

(3.)           Detriment to such person as a consequence of the act or omission.

[31]            The equitable doctrine of estoppel applies to the Crown. The Ontario Court of Appeal in Queen Victoria Niagara Falls Park Commissioners v. International Railway Co. (1928) 63 O.L.R. 49 per Grant J.A. stated at 68:

That the doctrine of estoppel in pais operates even as against the Crown is well established: vide Attorney General to the Prince of Wales v. Collom, [1916] 2 K.B. 193; Attorney General for Trinidad and Tobago v. Bourne, [1985] A.C. 93; Plimmer v. Mayor etc. of Wellington, 9 A.P.R. cases 699.

[32]            The Prothonotary pointed out that his consideration of estoppel is brief because his answering question number one in the affirmative made it unnecessary to consider the question to dispose of the motion.

[33]            In his decision, the Prothonotary first found that in relation to the plaintiffs, the Crown was estopped from denying it had the authority to grant leases containing perpetual renewal clauses. He found that the Crown, between 1934 and until about 1965, "took a position reflecting an intention to lease land on terms that would permit the lessees, so long as they complied with the terms applicable to their leases, to renew in perpetuity". As a result and given the fact that there is no prohibition against granting leases with perpetual renewal clauses, the Prothonotary ruled that the Crown is estopped from denying it had authority to grant such leases.

[34]            With respect to the intervenor, CP Hotels, the Prothonotary found that CPR and CP Hotels have in the last century, leased lands via leases with perpetual renewal clauses both in the original lease and in renewal leases and the Crown never informed CPR or CP Hotels that it could not grant leases containing perpetual renewal clauses. In fact, CPR and CP Hotels invested substantially in their property based on the existence of perpetual renewal clauses. Based on these facts, the Prothonotary found that the Crown was estopped from denying the existence of a perpetual renewal right.

[35]            Although, as the Prothonotary stated, his consideration of estoppel is brief, I cannot find that he is in error with respect to the affirmative answer that he gave to the second question.

[36]            As the Prothonotary based his answer to the second question on the issue of estoppel, I will not deal with the issue of mutual mistake which was not fully argued before the Prothonotary.

[37]            The defendant's motion is therefore dismissed with costs to the plaintiffs and to the intervenor.

ORDER

[38]            IT IS ORDERED that the defendant's motion is dismissed with costs to the plaintiffs and to the intervenor.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Vancouver, British Columbia

February 25, 2002

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-1168-96

STYLE OF CAUSE:                           ALLISON G. ABBOTT, MARGARET ABBOTT

and MARGARET ELIZABETH McINTOSH

- and -

HER MAJESTY THE QUEEN

- and -

CANADIAN PACIFIC HOTELS CORPORATION

PLACE OF HEARING:                     Winnipeg, Manitoba

DATE OF HEARING:                       Wednesday, October 10, 2001

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                                                Monday, February 25, 2002

APPEARANCES:

                                                               Arthur Stacy

FOR PLAINTIFF

Paul Edwards and Jurgen Feldschmid

FOR DEFENDANT

Judson Virtue and Julie Whittaker

FOR INTERVENOR

SOLICITORS OF RECORD:

                                                               Thompson Dorfman Sweatman

2200-201 Portage Avenue

Winnipeg, Manitoba

R3B 3L3

FOR PLAINTIFF

Duboff Edwards Haight & Schachter

1900-155 Carlton Street

Winnipeg, Manitoba

R3C 3H8

FOR DEFENDANT

MacLeod Dixon LLP

3700-400 Third Avenue S.W.

Calgary, Alberta

T2P 4H2

FOR INTERVENOR