Date:
20120829
Docket:
T-1963-10
Citation:
2012 FC 1024
Ottawa, Ontario,
August 29, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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BURNS BOG CONSERVATION SOCIETY
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Plaintiff
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and
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THE ATTORNEY GENERAL OF CANADA; THE MINISTER OF TRANSPORT AND INFRASTRUCTURE;
THE MINISTER OF ENVIRONMENT;
THE MINISTER OF FISHERIES and
THE QUEEN IN RIGHT OF CANADA
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Defendants
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is a motion by the Defendants under section 215 of the Federal Courts Rules SOR/98-106
for summary judgment on the ground that there is no legal basis for the
Plaintiff’s claim. 
BACKGROUND
[2]
Burns
Bog, which is situated between the South Arm of the Fraser River and Boundary Bay, is one of the largest raised peat bogs in the world (Burns Bog or the Bog).
The Burns Bog Conservation Society is a non-profit society registered in
British Colombia under the Society Act RSBC 1996, c 433 and dedicated to
preserving the Bog and raising public awareness of its ecological significance.
[3]
The
Defendants are ministers of the Federal Crown associated with the Pacific
Gateway Strategy, an infrastructure program intended to improve Canada’s maritime access to markets around the Pacific and Indian Oceans.
[4]
The
Corporation of Delta (Delta), the Greater Vancouver Regional District
(Vancouver), and the Province of British Columbia (together, Bog Owners)
purchased six parcels of the Bog for conservation purposes in 2004. On 12 March
2004, the Federal Minister of the Environment agreed to contribute $28 million
to the purchase (Contribution Agreement). However, the Federal Government did
not take title to any part of the Bog. The Contribution Agreement required the Bog
Owners to develop a management plan within two years so that at least 5000
acres of Burns Bog would be managed as protected conservation land.
[5]
In
March 2004, the Bog Owners granted the Federal Crown a conservation covenant
(Covenant) over the Bog under section 219 of the BC Land Titles ActRSBC 1996 c 250. The Covenant requires the Bog
Owners to refrain from taking any action “that could reasonably be expected to
destroy, impair, negatively affect, or alter” the Bog.
[6]
The
Federal Government and the Bog Owners entered into the Burns Bog Management
Agreement (Management Agreement) on 23 March 2004. The Management Agreement
laid out the process by which the parties would develop a long-term management plan
for the Bog in accordance with the Contribution Agreement. The Bog Owners
collaborated with the Federal Government and, on 25 May 2007, they finalized
the Burns Bog Ecological Conservancy Area Management Plan (Management Plan),
which sets out policy direction and recommended actions to maintain the Bog’s
ecological integrity.
The South Fraser Perimeter Road
[7]
The
South Fraser Perimeter Road (SFPR) is a component of the British Colombia
Gateway Program, an effort by the government of British Colombia (Province) to
improve bridge and road infrastructure throughout the Greater Vancouver area.
Although no part of the SFPR will pass through Burns Bog itself, a stretch of
it will run adjacent to the Bog.
[8]
On
3 September 2008, the Federal Government and the Province entered into an
arrangement to fund the SFPR project. In total, the Federal government agreed
to contribute $363 million to road construction. Notwithstanding its
financial contribution, Canada did not assume any responsibility for
construction or operation of the SFPR, which remains the Province’s
responsibility.
[9]
The
Federal Government’s monetary contribution, and the fact that the construction
required permits under the Fisheries Act RSC 1985 c F-14 (Fisheries Act)
and the Navigable Waters Protection Act RSC 1985 c N-22, triggered
an environmental assessment under the Canadian Environmental Assessment Act
SC 1992 c 37. The environmental assessment began on 11 December 2006.
Environment Canada provided expert advice to Transport Canada (TC) and the
Department of Fisheries and Oceans (DFO), who were responsible for completing
the assessment. On 28 July 2008, TC and the DFO concluded that the SFPR was not
likely to cause significant adverse environmental effects if certain mitigation
measures were followed. These mitigation measures included the creation of a
hydrology work plan and air quality work plan.
Conservation
Covenant
[10]
The
Covenant restricts what the Bog Owners can do on the Bog, as follows:
4.1 Except as expressly permitted in
section 6 of this agreement, the Province, Delta, and the GVRD shall not do
anything, or allow anything to be done, that does or could reasonably be
expected to destroy, impair, diminish, negatively affect, or alter the Bog or
the Amenities from the condition thereof described in the Report.
[11]
The
Covenant also provides that the obligations it creates are contractual only:
9.1 The parties agree that this
Agreement creates only contractual obligations and obligations arising out of
the nature of this Agreement as a Covenant under seal. Without limiting the
generality of the foregoing, the parties agree that no tort or fiduciary
obligations or liabilities of any kind are created or exist between the parties
in respect of this Agreement and nothing in this Agreement creates any duty of
care or other duty on any of the parties to anyone else.
[12]
The
Covenant also includes an “entire agreement” clause:
16. None of the
parties hereto have made any representation, Covenants, warranties, guarantees,
promises or agreements (oral or otherwise) with any other party than those
contained in this Agreement or in any other agreement that is reduced to
writing and executed by all parties to it. This agreement may only be changed
by a written instrument signed by all the parties.
Burns Bog Management Agreement
[13]
The
Management Agreement provides for the development of a long-term Management
Plan for the Bog and contains, inter alia, the following provisions:
2.01 Except as expressly permitted in section 6 of
the Conservation Covenant, the Province, Delta, and the GVRD shall not do
anything, or allow anything to be done, that does or could reasonably be
expected to destroy, impair, diminish, negatively affect, or alter the Land,
including all natural, scientific, environmental, wildlife or plant life values
or attributes relating to it, from the condition thereof described in this
Report.
2.04 Prior to completion of the Management Plan,
GVRD will […] manage the Land in accordance with the Conservation Covenant […]
2.08 In the event of any conflict, the
terms of the Conservation Covenant shall prevail over this Management
Agreement, the Management Plan, the Provincial Land Operating Agreement and the
Local Government Land Operating Agreement.
Statement of Claim
[14]
The
Plaintiff filed a Statement of Claim on 24 November 2010 by which it sought to
compel the Defendants to protect Burns Bog. The Plaintiff claims the construction
of the SFPR will negatively impact the hydrology of Burns Bog and says the
Defendants owe the Canadian public a trust, fiduciary, or other legal duty to
protect the Bog. The Plaintiff also claims that the Defendants are bound to
protect Burns Bog under the Fisheries Act, the Migratory Birds Convention
Act SC 1994 c 22 (MBCA), the Canadian Environmental Protection Act
SC 1999 c 33 (CEPA) and the Species at Risk Act SC 2002 c 29 (SARA).
[15]
The
Plaintiff also says that the Burns Bog Agreements created a duty on the
Defendants to protect Burns Bog and asks the Court for an injunction halting
construction of the SFPR or an order to reconsider the SFPR to protect the Bog.
The Plaintiff also asks for a declaration that the Defendants are bound by the
Burns Bog Agreements and a declaration that Burns Bog is subject to a public
trust.
Statement of Defence
[16]
The
Defendants filed their statement of Defence on 21 June 2011. They say the claim
should be struck because the Plaintiff has failed to plead the necessary facts
to show it has standing to bring the claim. The Defendants also say they do not
owe the Plaintiff any duty to protect Burns Bog and deny the existence of an
environmental, public, or any other kind of trust or fiduciary obligation. If
any of these obligations exists, none of the Defendants has breached any of
them and all have met their obligations. The Defendants met any duty to protect
Burns Bog by conducting the environmental assessment and by taking mitigation
measures.
[17]
In
the alternative, the Defendants say the essence of the Plaintiff’s claim is a
challenge to decisions by Transport Canada and the Department of Fisheries and
Oceans to approve the environmental screening of the SFPR. The appropriate way
to challenge those decisions was an application for judicial review under
section 18.1 of the Federal Courts Act RSC 1985 c F-7. The Plaintiff’s
claim is simply a collateral attack on those decisions.
[18]
The
Defendants also note they do not own Burns Bog. They deny the existence of a
general duty to protect the Bog. Further, there is no statutory duty to protect
the Bog. The Covenant only creates contractual obligations between, Delta, Vancouver, and the Province. The Management Agreement is only enforceable between the
parties and cannot create a duty to protect the Bog. The Management Plan does
not place any obligations on the Defendants to protect the Bog.
[19]
The
Plaintiff claims that the Defendants have breached the Burns Bog Agreements,
but the SFPR is not located on Burns Bog, so the agreements have no
application.
[20]
Section
22 of the Crown Liability and Proceedings Act RSC 1985 c C-50 prevents
the Court from granting the Plaintiff injunctive relief.
ISSUES
[21]
The
Defendants raise the following issues on this motion:
a.
Whether
the Statement of Claim discloses a genuine issue for trial;
b.
Whether
summary judgment is appropriate.
STATUTORY
PROVISIONS
[22]
The
following provisions of the Rules are applicable in this proceeding:
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213. (1) A party may
bring a motion for summary judgment or summary trial on all or some of the
issues raised in the pleadings at any time after the defendant has filed a
defence but before the time and place for trial have been fixed.
[…]
215. (1) If on a motion
for summary judgment the Court is satisfied that there is no genuine issue
for trial with respect to a claim or defence, the Court shall grant summary
judgment accordingly.
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213. (1) Une partie
peut présenter une requête en jugement sommaire ou en procès sommaire à
l’égard de toutes ou d’une partie des questions que soulèvent les actes de
procédure. Le cas échéant, elle la présente après le dépôt de la défense du
défendeur et avant que les heure, date et lieu de l’instruction soient fixés.
[…]
215. (1) Si, par suite
d’une requête enjugement sommaire, la Cour est convaincue qu’il n’existe pas
de véritable question litigieuse quant à une déclaration ou à une défense,
elle rend un jugement sommaire en conséquence.
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[23]
The
following provision of the British Colombia Land Titles Act RSBC 1996 c
250 (BC Land Titles Act) is also applicable in this proceeding:
219 (1) a Covenant as described
in subsection (2) in favour of the Crown […] may be registered against the
title to the land subject to the Covenant and is enforceable against the Covenantor
and the successors in title of the Covenantor even if the Covenant is not
annexed to land owned by the Covenantee.
(2) A Covenant registrable under subsection (1) may be of a
negative or positive nature and may include one or more of the following provisions:
(a) provisions in
respect of
(i) the use of land,
or
(ii) the use of a building on or to be erected on land;
(b) that land
(i) is to be built on in accordance with the Covenant,
(ii) is not to be built on except in accordance with the Covenant,
or
(iii)
is not to be built on;
[…]
(9) A Covenant
registrable under this section may be
(a) modified by the holder of the charge and the owner of the land
charged, or
(b) discharged by the holder of the charge
by an agreement or instrument in writing the execution of which is
witnessed or proved in accordance with this Act.
ARGUMENT
The
Defendants
[24]
The
Defendants argue that the Plaintiff’s claim is bound to fail because there is
no legal or equitable basis for the duty the Plaintiff alleges.
Test
for Summary Judgment
[25]
On
a motion for summary judgment the Court must ask whether the case is so
doubtful that it does not deserve consideration by the trier of fact at a
future trial. See TPG Technology Consulting Ltd. v Canada 2011 FC 1054 at paragraph 20. The Court is not to ask whether the Plaintiff
could possibly succeed at trial.
Burden on Summary Judgment
[26]
The
Plaintiff bears the evidentiary burden of establishing that there is a genuine
issue for trial. The Defendant bears the legal burden of establishing the
facts necessary to obtain summary judgment. See TPG Technology, above,
at paragraph 21.
Summary Judgment
Should be Granted
[27]
There
are no contested facts which must be resolved in order to determine that the Plaintiff’s
claim has no chance of success. The Defendants owe no duty to the Plaintiff or
to the general public to protect Burns Bog. The Statement of Claim identifies
four possible sources of such a duty, but none of these actually create the
duty the Plaintiff alleges.
Burns Bog Agreements
[28]
First,
none of the agreements between the Federal Government and the Bog Owners
require the Defendants to take any action to preserve the Bog’s ecological
integrity.
Conservation Covenant
[29]
The
Covenant’s restrictions apply to the Bog Owners, not to the Defendants. None of
the Defendants committed to protect the Bog or to prevent activities that may
damage it. The only obligation they assumed was to collaborate with the Bog
Owners in the preparation of the Management Plan.
[30]
The
Federal Crown is the beneficiary of the Covenant and has the power to enforce
it against the Bog Owners. However, the Covenant does not require the
Defendants to take steps to remedy breaches. The Covenant specifically permits Canada to waive breaches of the agreement.
[31]
The
Covenant also applies only in respect of the lands it charges. The SFPR is to
be situated entirely outside the Bog, so it follows that the Covenant cannot
apply to the construction of the SFPR. Subsection 219(1) of the BC Land Titles
Act provides that covenants are only enforceable against the original covenantor
or a successor in title to lands in respect of which they are registered. It
follows that the Covenant can only apply to the land against which it is
registered. The Covenant runs with the title to the Bog and other land is not
affected.
The Management
Agreement
[32]
The
Management Agreement provided for the management of the Bog while Canada and the Bog Owners worked toward a long-term Management Plan. There are no
provisions in the Management Agreement which require the Defendants to take steps
to protect the Bog.
Management Plan
[33]
The
Management Plan sets out policy directions and actions necessary to maintain
the Bog’s ecological integrity. It does not oblige the Defendants to protect
the Bog’s ecological integrity. In any case, it is a policy document and not a
contract.
Trust
Obligations
[34]
Second,
the Plaintiff relies on a public or environmental trust for the duty on the
Defendants to protect the Bog. There is no trust with respect to Burns Bog, so
this cannot ground a duty on the Defendants to protect it.
General Trust
Principles
[35]
A
trust is a fiduciary relationship which requires the legal owner of property to
deal with it in a manner that gives effect to the equitable rights of another
person. An express trust can only arise in the presence of the three
certainties:
a.
Certainty
of Intention: the trustee must have a specific obligation to
hold property to the benefit of anther person. A moral obligation is
insufficient to give rise to a trust relationship;
b.
Certainty
of Subject Matter: the property subject to the trust
obligation must, from the outset of the asserted trust, be clearly described or
definitively ascertainable;
c.
Certainty
of Objects:
there can be no uncertainty as to whether any given person is a beneficiary of
the trust.
See Scrimes
v Nickle, [1980] AJ No 514 (QL). None of the three certainties are present
in this case, so there can be no trust.
[36]
A
trust does not arise until trust property vests in the trustee. The Statement
of Claim does not identify any specific trust property. The Plaintiff says only
that the Defendants stand in a “trust and/or fiduciary and/or legal
relationship with respect to the protection of the ecological balance of Burns Bog”
However, the Defendants cannot be trustees of the Bog because they do not own
it.
Public,
Equitable, or Environmental Trust
[37]
The
Plaintiff has said the Defendants are bound by a public or environmental trust
which was created by the Burns Bog Agreements, by statute, or by the doctrine
of environmental trust. None of these is a valid basis for any obligation on
the Defendants to protect Burns Bog.
Burns Bog
Agreements
The
Covenant cannot create a trust because it gives neither title nor ownership of
the Bog to the Defendants. It also expressly excludes any fiduciary obligations
between the parties or to anyone else. Zeitler v Zeitler Estate 2008
BCSC 775, at paragraph 70, teaches that where there is a contractual
relationship, the Court must not distort facts to impose a trust where none was
intended. To interpret the Covenant as imposing a trust duty on the Defendants
would be to inappropriately distort its terms.
[38]
Under
section 219(9) of the BC Land Titles Act, the Defendants can
unilaterally discharge their obligations under the Covenant. This is inconsistent
with the existence of a trust relationship. Further, Green v Ontario, [1973] 2 OR 396 establishes that a trust obligation includes an
obligation to hold trust property. See pages 407 and 408. The Defendants’ right
to unilaterally discharge the Covenant shows they do not have an obligation to
hold the Covenant, which is the only property which could be subject to a trust
obligation. The Defendants have no obligation to hold the purported trust
property, so they cannot be subject to a trust obligation. Neither the
Management Agreement nor the Management Plan eliminates the Defendants’ right
to unilaterally discharge the Covenant.
No
Public Trust
[39]
The
Defendants cannot be subject to obligations under a public trust because no
such trust exists in Canadian law. The Plaintiff says this kind of trust is
created by operation of Canadian environmental law, but no court in Canada has recognized a public trust which requires the Crown to protect the environment.
The Supreme Court of Canada considered the possibility of a public trust in British
Colombia v Canadian Forest Products Ltd 2004 SCC 38, [Canfor] but
found it could not decide the issue because it was not addressed in the courts
below.
[40]
The
public trust doctrine exists in the United States of America (USA) and
recognizes that state lands may be held in trust for the public. In Canfor,
above, British Colombia sought a valuation of tort damages for publicly owned
resources. Here, the Defendants do not own Burns Bog, so they cannot owe a
trust obligation even if a public trust can exist under Canadian law. There is
no basis in law to impose a trust obligation on the Defendants with respect to
property owned by the Bog Owners.
Fiduciary Duty
[41]
The
third source the Plaintiff identifies for the Defendants’ obligation to protect
Burns Bog is a fiduciary duty owed to the Bog, the Canadian public and the
Plaintiff. However, Alberta v Elder Advocates of Alberta Society 2011
SCC 24 at paragraph 48 establishes that the Crown does not owe a fiduciary duty
to the public at large. The Defendants cannot owe a fiduciary obligation to the
Bog itself because a fiduciary duty can only be owed to persons or classes of
persons. Further, the Plaintiff has not established that its relationship with
the Defendants falls into any of the recognized categories of fiduciary
relationship. Elder Advocates shows that “the special characteristics of
governmental responsibilities and functions mean that governments will owe
fiduciary duties only in limited and special circumstances.” See paragraph 37.
[42]
To
make out its claim based on fiduciary obligation, the Plaintiff must show that
an ad hoc fiduciary relationship exists between it and the Defendants.
Accordingly, it must show that:
a.
The
Defendants gave an undertaking of responsibility to act in the Plaintiff’s best
interests;
b.
The
Plaintiff is vulnerable to the Defendants, in the sense that the Defendants
have discretionary power over the Plaintiff;
c.
The
Defendants’ power may affect the Plaintiff’s legal or substantial practical
interests.
See Elder
Advocates, above, at paragraph 30 to 34.
[43]
The
Defendants have not undertaken to act in the Plaintiff’s best interests. As the
Supreme Court of Canada said in Elder Advocates, above, at paragraph 44:
Compelling a fiduciary to put the best interests of
the beneficiary before their own is thus essential to the relationship.
Imposing such a burden on the Crown is inherently at odds with its duty to act
in the best interests of society as a whole, and its obligation to spread
limited resources among competing groups with equally valid claims to its
assistance: Sagharian (Litigation Guardian of) v. Ontario (Minister of
Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, at paras. 47-49. The
circumstances in which this will occur are few. The Crown's broad responsibility
to act in the public interest means that situations where it is shown to owe a
duty of loyalty to a particular person or group will be rare: see Harris v.
Canada, 2001 FCT 1408, [2002] 2 F.C. 484, at para. 178.
[44]
The
Covenant expressly says it creates no duty to outside parties, which precludes
an undertaking to act in the Plaintiff’s best interests. The Plaintiff’s
failure to show an undertaking is enough to defeat their claim of a fiduciary
obligation on the Crown to protect the Bog.
[45]
The
Plaintiff also fails to establish a fiduciary obligation on the second and
third branches of the Elder Advocates test. The government may validly
make distinctions between different groups of people. A fiduciary duty arises
only where the purported fiduciary has deliberately given up interests of
others in favour of the beneficiary. The Plaintiff’s members are only
distinguished by voluntary association with it and are otherwise
indistinguishable from the rest of the Canadian public.
[46]
The
Plaintiff also has no practical or legal interest in Burns Bog that is
different from any other member of the public. Elder Advocates requires
a specific private law interest to which the purported beneficiary has a
distinct and complete legal interest. The interest the Plaintiff has in preserving
Burns Bog is identical to that of all Canadians so there can be no
fiduciary relationship between the Plaintiff and the Defendants.
Statutory Obligations
[47]
None
of the Fisheries Act, the MBCA, the CEPA, or the SARA grounds a duty on
the Defendants to protect Burns Bog. The Plaintiff has not pointed to any
provision in these acts which establishes a fiduciary, trust, or legal
relationship between the Defendants and the Plaintiff or Burns Bog. As the
Supreme Court of Canada held in Elder Advocates, above, at paragraph 45,
If the undertaking is alleged to flow from a statute, the language
in the legislation must clearly support it: K.L.B. v.
British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, at para. 40; Authorson v. Canada (Attorney General) (2000), 53 O.R.
(3d) 221 (S.C.J.), at para. 28, aff'd (2002), 58 O.R. (3d) 417 (C.A.), at para. 73, rev'd on other grounds, 2003 SCC 39, [2003] 2 S.C.R. 40. The mere grant
to a public authority of discretionary power to affect a person's interest does
not suffice.
Conclusion
[48]
The
Plaintiff cannot prove any basis for fiduciary, trust, contractual, or other
legal duty owed by the Defendants to protect Burns Bog, so its claim cannot
succeed. There is no genuine issue for trial, so summary judgment should be
granted against the Plaintiff with costs to the Defendants.
The
Plaintiff
[49]
This
case is not appropriate for summary disposition because the issues are complex
and require a full hearing on the merits. To adjudicate the case, the Court
will have to interpret several statutes and the Covenant. The issues raised
touch on environmental and public policy and involve consideration of the
public good. Although the Defendants do not want the case to be given a full
hearing, the public interest favours a full hearing in this case.
[50]
The
Court should also allow this matter to proceed to trial to develop the law on
environmental issues. Section 91 of the Constitution Act, 1867 gives
jurisdiction over the environment to the Federal Government. This is to ensure
uniform regulation across Canada. The Federal Court is the appropriate court to
consider the issues the Plaintiff has raised. Given the importance of the
Federal Government in environmental protection, the Court should give guidance
only after a full hearing in this case. The Court’s jurisdiction over
environmental law is analogous to its jurisdiction over maritime law, in that
it is necessary to ensure uniformity across Canada. The existence of the
doctrine of environmental trust in Canadian law requires a full hearing on the
merits.
[51]
Protection
of the environment is an important issue in Canada, so the Court should give
the Plaintiff a full hearing. Although the Defendant has said there is no
statutory basis for the trust the Plaintiff asserts that the law on this point
is unsettled. The facts of this case are unique, so a full hearing is required.
[52]
The
Defendants have given no authority for their argument that the only remedy
available to the Plaintiffs was an application for judicial review. The Court
should consider all remedies available.
Plaintiff has
Standing
[53]
Recent
cases from this Court and the Federal Court of Appeal dealing with the SARA
show that the Plaintiff has standing to bring this application. The Plaintiff
has a long-standing connection to Burns Bog and is an interested party.
Issues
for Trial
Law
is Unsettled
[54]
Summary
judgment is appropriate where there is no genuine issue for trial. However,
there is a genuine issue for trial in this case: whether the Court should
extend the common-law to include an environmental trust. Such a trust could
arise on the facts of this case, so a full oral hearing is required. Until the
law in this area is fully developed, summary judgment is inappropriate.
[55]
In
this case, the relevant facts are contested by the parties, so summary judgment
is inappropriate. Further, full discovery is necessary to establish the history
of the Covenant and ensure the SFPR was designed to protect Burns Bog. The
Defendant has not led any evidence to show the hydrology of Burns Bog has been
protected or what impact the SFPR will have on the Bog.
Duty to Protect the Bog
[56]
The
Defendants have said they do not owe any duty to protect Burns Bog. However,
there is no legal authority for this argument. The duty to protect Burns Bog
can be supported by contractual, trust, fiduciary, and statutory obligations.
Under the Covenant, Management Agreement, and Management Plan, the Defendants
are under a duty to protect Burns Bog. The Defendants do not own the Bog, but
their provision of funding to construct the SFPR imposes a public trust on
them. The Defendants have also undertaken fiduciary obligations with respect to
the Bog. The Fisheries Act, MBCA, CEPA, and SARA impose an obligation on the
Defendants to protect Burns Bog. The Court will also have to consider how the Covenant
imposes a duty on the Defendants to protect Burns Bog.
[57]
The
Defendants are also under a duty to protect the environment which is broader
than any proprietary interest and can be grounded in a number of sources. A
full hearing is necessary to determine the scope of the duty the plaintiffs
assert. A full hearing is necessary to consider whether the public interest
grounds the duty to protect the environment.
[58]
The
facts in this case are unique. Municipal, Provincial, and Federal authorities
joined together to create a unique contract which creates park-like status for
Burns Bog. However, government inaction has harmed the Bog by allowing it to be
drained. The impact of this government inaction is an issue which must be
addressed in a full hearing.
[59]
There
is a valid cause of action in this case. The existence of a trust or
stewardship relationship between the Defendant and Burns Bog is one which
requires a full hearing on the merits.
Conclusion
[60]
The
Defendants’ motion should be dismissed and the case returned to the case
management judge. With the assistance of experience counsel, the issues in this
case can be resolved fully. The Plaintiff should also be awarded costs of this
motion.
ANALYSIS
[61]
There
is no dispute between the parties about the rules and principles applicable to
summary judgment.
[62]
Sections
213 - 215 of the Rules govern motions for summary judgment. The Rules permit an
application for summary judgment on all or some of the issues raised in the
pleadings. If the Court is satisfied there is no genuine issue for trial, the
Court must grant summary judgment accordingly.
[63]
The
Supreme Court of Canada in Canada (Attorney General) v Lameman
2008 SCC 14, at paragraph 10, recently emphasized the importance of summary
judgment for our justice system:
The summary judgment
rule serves an important purpose in the civil litigation system. It prevents
claims or defences that have no chance of success from proceeding to trial.
Trying unmeritorious claims imposes a heavy price in terms of time and cost on
the parties to the litigation and on the justice system. It is essential to the
proper operation of the justice system and beneficial to the parties that
claims that have no chance of success be weeded out at an early stage.
Conversely, it is essential to justice that claims disclosing real issues that
may be successful proceed to trial.
[64]
At
paragraphs 20 and 21 of TPG Technology, above, Justice David Near
confirmed the well-established principle that the question for the Court on an
application for summary judgment is not whether a party cannot possibly succeed
at trial, it is whether the case is so doubtful that it does not deserve
consideration by the trier of fact at any future trial. On a motion for summary
judgment, the responding party has the evidentiary burden of showing that there
is a genuine issue for trial, but the moving party bears the legal onus of
establishing the facts necessary to obtain summary judgment. Absent any issue
of credibility, the Court is to consider and determine the facts necessary to
decide questions of fact and law if that can be done on the whole of the
evidence presented.
[65]
In
my view, this matter is appropriate for summary judgment. There are no
contested facts on the matter at issue which need to be resolved in order to
determine that the Plaintiff’s claim has no chance of success and that it
should not be allowed to proceed to trial.
The
Central Issue
[66]
As
the Defendants correctly point out, the issue before me in this motion is not
whether the construction of the SFPR by the Province may impact the ecology of
Burns Bog. The issue is whether there is a genuine issue for trial over whether
the Defendants owe to the Plaintiff any duty with respect to Burns Bog that
compels any of the Defendants to intervene and ensure that the construction of
the SFPR does not impact the ecological integrity of Burns Bog.
[67]
When
it comes to arguing that there is a genuine issue for trial over whether Canada has such a duty or obligation, the Plaintiff relies heavily upon assertion but
brings little to Court by way of evidence and authority.
[68]
It
is well-established that, on a motion for summary judgment, both sides must
file such evidence as is reasonably available to them and which could assist
the court in determining if there is a genuine issue for trial. The responding
party cannot rest on its pleadings and must prove specific facts to show there
is a genuine issue. See Kanematsu GmbH v Acadia Shipbrokers Ltd., [2000]
FCJ No 978 (CA).
[69]
In
the present case, the Plaintiff has produced and relies upon the affidavit from
its president, Ms. Eliza Olson. Ms. Olson helpfully explains the history and
purpose of the Plaintiff. She also explains the Plaintiff’s concerns:
The Plaintiff wishes to advise
the court that it has been in operation for the last 20 years and it did not
take filing this action lightly but given the importance of the issue and
stewardship role that we have sought, we have commenced this action to protect
Burns Bog for future generations. It is our belief that the project with
respect to the construction of the South Fraser Perimeter Road (SFPR) will
impact Burns Bog and affect its hydrology and that of the surrounding land and
have an adverse long term effect as the hydrology will be impacted causing
irreparable harm. These include but are not limited to the following:
a.
affecting
the hydrology of the adjacent lands and impacting overall hydrology
b.
affecting
the habitat of Sandhill cranes
c.
affecting
the habitat of various fish species and
d.
affecting
the habitat of small mammals and species at risk including the Red-backed vole.
The Plaintiff at the outset
wishes to say it does not wish to block the SFPR but wants to have the project
reviewed and/or modified so that the Bog’s raised area provides sufficient
drainage, so that the Bog is not dried out leading to ecological harm and environmental
damage.
[70]
While
Ms. Olson assists the Court in understanding concerns about the future of Burns
Bog that lie behind this lawsuit, she provides no evidence of relevance for the
issue before me in this motion, which is whether the Defendants owe some
contractual, trust, fiduciary or statutory obligation to maintain the
ecological integrity of Burns Bog.
[71]
Mr.
Straith, acting for the Plaintiff, was helpful in providing the Court with a
better understanding of the general concern. In essence, he says that the
Defendants have failed to safeguard the hydrology of the Bog in breach of its
Covenant to do so and, in particular, by contributing to the financing of the
SFPR and by allowing ministerial decisions to dilute the protections set out in
the Covenant. He says that Canada has “changed the game plan” and reneged on
its commitment and the duty to protect the Bog for all Canadians. Mr. Straith
says that the situation is very complex and that the Plaintiff intends to call
evidence at trial that will show how matters have changed since the Covenant
was entered into and since the SFPR project was initiated.
[72]
The
only evidence before me comes from Ms. Olson and she says the Plaintiff
believes the SFPR will affect the hydrology of the Bog and will have an adverse
long-term impact. However, there is no real evidence to support these beliefs
and, in any event, such beliefs do not assist me in understanding what the
Defendants’ legal responsibility is for the Bog, or how the Defendants may have
allowed the situation to deteriorate since entering into the Covenant.
[73]
It
is well-established that a summary judgment motion must be supported by
specific evidence and the parties cannot simply rely upon their pleadings. (See
White v Canada, [1998] FCJ No 981 (TD). Assertions in a statement of
claim which are not supported by evidence will not be treated as proven facts
(see Kirkbi AG v Ritvik Holdings Inc., [1998] FCJ No 912). A
response to a motion for summary judgment cannot be based on conjecture as to
what the evidence might be at a later stage in the proceedings. In fact, the
Court is entitled to assume that the parties have put their best foot forward
and that, if the case were to go to trial, no additional evidence would be
presented. It is not sufficient for a responding party to say that more and
better evidence will, or may, be available at trial. See Rude Native Inc. v
Tyrone T. Resto Lounge 2010 FC 1278.
[74]
In
the present case, there is no specific evidence before me on the background
concerns and the Plaintiff’s assertion that the Defendants have allowed a game
change to occur, and have reneged on the Covenant. In addition, there is no
evidence at all before me that the Defendants have assumed some kind of legal
obligation to take steps to prevent the Province from constructing the SFPR in
a manner that might compromise the Bog’s ecological integrity. The Plaintiff
has simply asserted legal duties in the abstract and has made no effort to show
the Court how such duties could arise on the facts of this case. The Plaintiff
says that the environment is an important issue for Canadians and that Burns
Bog needs to be protected, but there is no factual underpinning to show what
the dangers to the Bog are or how the Defendants, given the facts of this case,
are fixed with the legal duties and obligations asserted.
[75]
There
is an obvious reason for this lack of evidence. The issue of Canada’s obligations is almost entirely legal. We have before us all of the relevant
agreements and principles required to answer the question of whether there is a
genuine case for trial on this matter. There are no credibility concerns and no
facts in dispute. This is the kind of question that the Court is well able to
address and answer by way of summary judgment.
[76]
Having
reviewed the record before me, the relevant agreements, and the principles and
authorities put forward by both sides, it is my view that the Defendants have
made their case for summary judgment. Generally speaking, I accept the
Defendants’ reasoning and authority on each point and adopt them for purposes
of these reasons.
The Covenant
[77]
Canada does
not owe any duty to the Plaintiff, the Bog or the general public respecting the
protection of the Bog’s ecological integrity. This is because:
a.
The
Covenant, Management Agreement and Management Plan do not impose upon Canada any positive obligations respecting the protection of the Bog;
b.
Canada does
not owe any trust obligations respecting the Bog because Canada does not own the Bog. Moreover, there is no basis in law or equity for the imposition of a
“public trust” duty in this case;
c.
Canada has
not undertaken any fiduciary obligations with respect to the Bog; and,
d.
None
of the statutes cited by the Plaintiff impose upon Canada any obligations with
respect to the protection of the Bog.
[78]
In
order to succeed in a claim based in contract, the Plaintiff must identify the
specific obligation that Canada was required to perform and a breach of that
obligation. I agree with the Defendants that a review of the terms of each of
the Covenant, Management Agreement and Management Plan demonstrates that none
of these documents impose upon Canada any obligations in relation to the
protection of the Bog’s ecological integrity.
[79]
Canada
holds the benefit of the Covenant and may choose to enforce it in the event of
a breach of the Covenant by one of the Bog Owners. However, the Covenant does
not impose upon Canada any obligations respecting the Bog.
[80]
Further,
the Covenant applies only to the Bog and does not limit the use of land outside
of the Bog. Accordingly, the Covenant does not give rise to any obligations on Canada to ensure that the SFPR is constructed by the Province in a manner consistent with
the preservation of the Bog.
[81]
The
restrictions on land use in the Covenant do not apply to Canada. Canada is not one of the Bog Owners.
[82]
Moreover,
Canada did not make any commitments under the Covenant to take steps to
protect the Bog or to prevent activities that may damage the Bog.
[83]
Canada
holds the benefit of the Covenant pursuant to section 219 of the Land Titles
Act. Canada may choose to take steps to enforce the Covenant in the event
of a breach by one of the Bog Owners. However, the Covenant does not require Canada to take steps to remedy a breach of the Covenant. Rather, the Covenant provides that
Canada may waive any breach of the Agreement.
The
Management Agreement
[84]
Similarly,
I agree with the Defendants that the Management Agreement does not operate to
impose upon Canada any duties respecting the protection of the Bog.
[85]
The
Covenant contemplates that the parties will collaborate to develop a management
plan governing the long-term management of the Bog. Pending the development of
such a management plan, the parties entered into the Management Agreement.
[86]
The
parties to the Management Agreement are Canada, Delta, Vancouver, and the
Province. The Management Agreement acknowledged, inter alia, Canada’s contribution to the purchase of the Bog and that the Bog Owners have agreed to enter into a
Covenant that would restrict the use of the Local Government Land and the Provincial Land.
[87]
It
is clear that the Management Agreement was intended to act as a bridge and to
provide for the management of the Bog while the parties worked towards the
development of the long-term Management Plan.
[88]
There
are no provisions in the Management Agreement requiring Canada to take any steps to protect the Bog. Canada’s only commitment in the Management Agreement is
to participate in the collaborative planning team to prepare the Management
Plan.
[89]
The
Management Agreement does not support the Plaintiff’s claim that Canada owes any kind of duty to protect the ecological integrity of the Bog.
The Management
Plan
[90]
The
Management Plan contemplated by the Covenant and the Management Agreement was
completed in May of 2007. The Management Plan sets out the policy direction and
actions that are designed to maintain the Bog’s ecological integrity.
[91]
As
the Defendants point out, the Management Plan is not a contract, but is a
policy document produced by a team that included representatives from VANCOUVER, the Province, Delta and Canada.
[92]
The
Management Plan identifies priorities and recommended actions respecting the
management of the Bog in the areas on hydrology, lagg, wildlife, land
interests, access to Bog lands, vegetation and wildlife, habitat and
connectivity with adjacent lands and public education.
[93]
I
agree with the Defendants that the Management Plan does not place any
obligations on Canada respecting the protection of the Bog’s ecological
integrity. I also agree with the Defendants that the Management Plan does not
support the Plaintiff’s claim that Canada owes any duty to protect the
ecological integrity of the Bog.
No Trust Duty
[94]
The
Plaintiff suggests that Canada owes a variety of trust obligations with respect
to the Bog but does little to suggest how such obligations have arisen on the
facts of this case. In particular, the Plaintiff alleges that Canada is in an “environmental and/or fiduciary an [sic]/or legal trust
relationship” and that a “public and/or equitable or environment trust” was
“created by the operation of Canadian environmental law.” The Defendants and
the Court are left to surmise how these obligations may have come about in the
present case. The Defendants have taken the Court back to basic principles and
have, in my view, clearly demonstrated that there is nothing to support such
obligations in this case.
[95]
To
begin with, a trust is a category of fiduciary relationship in which the
trustee holds the title to property and manages it for the benefit of another,
who has exclusive enjoyment of the property. As the Defendants point out, there
are three essential characteristics of trusts, commonly referred to as the
“three certainties”:
[…] first the language of the
alleged settlor must be imperative; secondly, the subject matter or trust
property must be certain; thirdly, the objects of the trust must be certain.
This means that the alleged settlor, whether he is giving the property on the
terms of a trust or is transferring the property on trust in exchange for
consideration, must employ language which clearly shows his intention that the
recipient should hold on trust. No trust exists if the recipient is to take
absolutely, but he is merely put under a moral obligation as to what is to be
done with the property. If such imperative language exists, it must secondly be
shown that the settlor has so clearly described the property which is to be
subject to the trust that it can be definitively ascertained. Thirdly, the
objects of the trust must be equally clearly delineated. There must be no
uncertainty as to whether a person is, in fact, a beneficiary. If any one of
these three certainties does not exist, the trust falls to come into existence
or, to put it differently, is void.
See Scrimes,
above, at paragraph16.
[96]
To
establish a trust, it is also necessary to prove that the trust property is
vested in the trustee. As established in Scrimes, above, at paragraph
17, there must be “an equitable interest based on a conscientious
obligation which can be enforced against the legal owner” of the trust
property, or no trust can exist.
[97]
This
means that the Plaintiff must prove that Canada took ownership of specific
trust property with the intention of holding that property in trust for the
specified object.
[98]
The
Plaintiff does not specifically identify the trust property in the Statement of
Claim, but states that Canada is in a “trust relationship” with the Bog. The
Plaintiff appears to allege that Canada holds the Bog subject to a trust.
[99]
However,
Canada does not own the Bog. Ownership of the trust property by the trustee
is an essential element of a trust. A trust is not perfected until the trust
property is vested in the trustee. Accordingly, I agree with the Defendants
that Canada is not a trustee of the Bog and does not owe to the Plaintiff, the
Bog or the Canadian public any trust obligations respecting the Bog.
[100] Despite
the fact that Canada does not own the Bog, the Plaintiff alleges that a “public
and/or equitable or environment trust” was created by agreement, statute and/or
by an environmental trust doctrine. I agree with the Defendants that these
allegations are bound to fail.
[101] A
review of the terms of the Covenant demonstrates that it does not create a
trust relationship between Canada and the Bog.
[102] The
Covenant is a contract between Canada and the Bog Owners. The extent of Canada’s interest in the Bog is defined by the Covenant. The Covenant does not give Canada title to the Bog. Further, it does not give Canada the ability to control the Bog.
[103] Moreover,
the Covenant expressly states that “no tort or fiduciary obligations or
liabilities of any kind are created or exist between the parties in respect of
this Agreement and nothing in the Agreement creates any duty of care or other
duty on any of the parties to anyone else.”
[104] Zeitler,
above, shows at paragraph 70 that
In cases in which it is
established that there is a contractual relationship between the parties, the
interpretation of either facts or documents must not be distorted or given
undue emphasis in order to impose the existence of a trust, where a reasonable
and impartial interpretation would reveal that such a trust was neither
intended nor created.
See also
Scrimes, above, at paragraph19.
[105] Given
the express disclaimer of any fiduciary obligations within the Covenant, I
agree with the Defendants that it would be a “distortion” of its terms to find
that it imposes any kind of trust duty on Canada. This aspect of the claim must
fail.
No Public Trust
[106] The
Plaintiff also refers to a “public trust […] created by operation of Canadian
environmental law”, and suggests that the Bog “is in a public trust and or
equitable relationship with the Defendants.” The Plaintiff suggests that the
“public trust” requires Canada to take positive steps to protect land that is
owned by other parties. This seems to me to be the Plaintiff’s principal
argument.
[107] My
review of the case law suggests that the Defendants are correct when they say
that, to date, no Canadian courts have recognized a public trust duty requiring
the Crown to take positive steps to protect the environment generally or a
specific property.
[108] In Canfor,
above, Justice Binnie considered the possibility that there may be a place in
Canadian law for a public trust doctrine, similar to the doctrine found in
American law. After considering the American law, Justice Binnie concluded that
it was not the proper case to embark upon a consideration of the issues
involved because the issues were not fully addressed in the Court below.
[109] In
the US, the American Public Trust doctrine recognizes that a state’s title to
some lands may be held in trust for the public. The Public Trust Doctrine has
been relied upon to permit the state to sue for damage to public resources and
to restrain the state’s own use of some public lands.
[110] The
key component of the American cases considered by Justice Binnie appears to be
that they involved state obligations respecting public resources.
[111] In Canfor,
the province owned the land and sought a valuation of tort damages for the
publicly owned resource. As the Defendants point out, this is a very different
situation from the case at bar where the Bog is not owned by Canada. It is difficult to conceive of how a public trust duty could be imposed upon Canada concerning lands that it does not own. The Plaintiff is asserting some vague and
undefined general concept that, in the end, amounts to saying that Canada has a general public trust duty to protect the environment in a way that the
Plaintiff says it ought to be protected in this case. There is no legal support
for such an assertion and, in my view, it is contrary to established principle
and Canada’s obligations to consider the best interests of all Canadians.
[112] I
think the Defendants are right to point out that the fact that Canada does not own the Bog presents a starkly different factual scenario than the one
before the Supreme Court of Canada in Canfor. The Plaintiff is not
suggesting that Canada must protect federally owned land. Rather, the Plaintiff
seeks to impose upon Canada a trust duty to take steps to protect land that is
owned by the Province, Vancouver and Delta. I agree that there is no basis in
law or equity for the imposition of such a duty on Canada in this case. This
aspect of the claim is bound to fail.
No Fiduciary
Duty
[113] The
Plaintiff also asserts that Canada owed it, the Canadian public, and the Bog
itself a fiduciary obligation.
[114] I
agree that such a claim is certain to fail. The Crown does not owe a fiduciary
obligation to the public at large.
[115] Additionally,
the Plaintiff cannot succeed in its assertion that Canada owes a fiduciary
obligation to the Bog itself. Fiduciary obligations can only be owed to persons
or classes of persons, not geographical locations.
[116] In
order to succeed therefore the Plaintiff must establish that Canada owes a fiduciary obligation to the Plaintiff.
[117] The
Defendants are right when they point out that the relationship between the
Crown and the Plaintiff does not fall into any established fiduciary
relationship (trustee-cestui qui trust, executor-beneficiary,
solicitor-client, agent-principal, director-corporation and guardian-ward or
parent-child). Therefore, to succeed in the claim based on a fiduciary duty,
the Plaintiff must demonstrate an ad hoc fiduciary relationship.
[118] The
Supreme Court of Canada in Elder Advocates, above, recently emphasized
that “the special characteristics of governmental responsibilities and
functions mean that governments will owe fiduciary duties only in limited and
special circumstances.”
[119] In
order to establish an ad hoc fiduciary duty:
a.
The
evidence must show that the alleged fiduciary gave an undertaking of
responsibility to act in the best interests of a beneficiary;
b.
The
duty must be owed to a defined person or class of persons who must be
vulnerable to the fiduciary in the sense that the fiduciary has a discretionary
power over them; and
c.
The
claimant must show that the alleged fiduciaries power may affect the legal or
the substantial practical interests of the beneficiary.
[120] I
agree with the Defendants that, in the present case, the Plaintiff fails on
each of these requirements.
[121] First,
there has been no undertaking made by Canada to act in the best interests of
the Plaintiff. Such an undertaking will rarely be found to have been made by
the Crown:
“[c]ompelling a fiduciary to put
the best interests of the beneficiary before their own is thus essential to the
relationship. Imposing such a burden on the Crown is inherently at odds with
its duty to act in the best interests of society as a whole, and its obligation
to spread limited resources among competing groups with equally valid claims to
its assistance.”
See Elder Advocates,
above, at paragraph 44.
[122] Though
such undertakings can be either express or implied, a “general obligation to
the public or sectors of the public cannot meet the requirement of an
undertaking,” and the “mere grant to a public authority of discretionary power
to effect the person’s interest does not suffice.” See Elder Advocates,
above, at paragraphs 45 and 48.
[123] In
this case, there has been no undertaking by Canada to put the interests of the
Plaintiff before all others. Indeed, the Covenant expressly states that it
creates no duties to any outside parties. The lack of an undertaking of
undivided loyalty to the Plaintiff in itself is sufficient to dispose of the
fiduciary obligation claim.
[124] However,
I agree that the Plaintiff also fails the second and third steps in the Elder
Advocates test. The government is entitled to make distinctions between
different groups. In order to establish a fiduciary duty, the Plaintiff “must
point to a deliberate forsaking of the interests of all others in favour of
himself or his class.” See Elder Advocates, above, at paragraph 49. Nothing
other than voluntary membership in an organization distinguishes the Plaintiff
from any other member of the Canadian public. The Plaintiff group has an
interest in preservation of the Bog, but the government of Canada is allowed to choose between competing interests.
[125] Finally,
the Plaintiff has no legal or substantial practical interest in the Bog. The
Plaintiff must show more than an impact on their “well-being, property or
security.” The interest affected must be a specific private law interest
to which the person has a pre-existing distinct and complete legal
entitlement. See Elder Advocates, above, at paragraph 51. The
Plaintiff has no legal entitlement to the Bog; it has the same interest in the
preservation of British Columbia’s environment shared by all.
No Statutory
Duty
[126] The
Plaintiff alleges generally that the Fisheries Act, MBCA, CEPA, and SARA
impose a “trust and/or fiduciary an[sic]/or legal relationship with
respect to Burns Bog.” I do not think any of these statutes imposes a duty on
the Defendants to protect Burns Bog. The Fisheries Act is an Act
respecting the federal regulations of fisheries in Canada. The MBCA implements
a convention to protect migratory birds in Canada and the USA. The CEPA is all about pollution prevention and the protection of the environment and
human health in order to contribute to sustainable development. The SARA is an
Act to protect of wildlife at risk in Canada. Nothing in any of these Acts
states or implies that Canada has any fiduciary, trust or legal relationship
with the Bog.
[127] If a
statute does not clearly state that it creates a fiduciary duty, it does not do
so:
If the undertaking [creating a
fiduciary obligation] is alleged to flow from the statute, the language in the
legislation must clearly support it… The mere grant to a public authority of
discretionary power to affect a person’s interest does not suffice.
See Elder Advocates,
above, at paragraph 45.
[128] I
once again agree with the Defendants that the allegation of a statutory duty is
bound to fail because there is no basis for finding any obligation created by
statute.
Conclusions
[129] The
Plaintiff has chosen to respond to and resist this motion, not by addressing
the Defendants’ factual and legal arguments, but by appealing to the importance
of the environment and an assertion that Canada should assume stewardship of
the Bog so that the Plaintiff’s concerns about the SFPR can be dealt with. The
only evidence I have about those concerns comes from Ms. Olson, who tells me
that the Plaintiff does not wish to block the SFPR, but wants to have the
project reviewed and/or modified so that the Bog’s raised area provides
sufficient drainage, and so that the Bog is not dried out, leading to
ecological harm and environmental damage.
[130] These
may well be worthwhile objectives and I can well appreciate the Plaintiff’s
concerns over the future of the Bog and its frustrations in trying to find an
appropriate legal context in which to raise those concerns. But I have nothing
before me that substantiates those concerns and, more importantly, I have
nothing before me to suggest that the Defendants have a legal obligation — or
the legal right — to step in and, on behalf of the Plaintiff, insist that the
Province’s SFPR project be reviewed and/or modified in ways that have not even
been placed before me.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
Defendants’ motion for summary judgment is granted and the Plaintiff’s action
is dismissed with costs to the Defendants.
“James Russell”
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