Docket: T-8-17
Citation:
2017 FC 553
Ottawa, Ontario, June 6, 2017
PRESENT: The Honourable Madam Justice Strickland
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BETWEEN:
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ARCTOS HOLDINGS
INC AND ARCTOS & BIRD MANAGEMENT LTD
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Applicants
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and
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ATTORNEY
GENERAL OF CANADA AND FUJI STARLIGHT EXPRESS CO LTD
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Respondents
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ORDER AND REASONS
[1]
This is a motion in writing, pursuant to Rule
369 of the Federal Courts Rules, SOR/98-106 (“Rules”), by which the
Respondent, the Attorney General of Canada (“Attorney General”), seeks an Order
striking the application for judicial review brought by the Applicants, Arctos
Holdings Inc. and Arctos & Bird Management Ltd. (collectively “Arctos”).
[2]
Arctos Holdings Inc. owns the Bison Courtyard,
described as a retail, residential and restaurant space located at 211 Bear
Street in the Town of Banff (or the “Town”). Arctos & Bird Management Ltd.
is a developer and property manager, one of its projects is Bison Courtyard.
By their Notice of Application, Arctos seeks judicial review of a decision of
the federal Minister of Environment, or her delegate, made on November 25,
2016, to consolidate two leases for property in Banff, being the lease for Lot
20 and the lease for Lots 21-24 (“Lease Consolidation Decision”), both were
held by the Co-Respondent, Fuji Starlight Express Co. Inc. (“Fuji”) and are
located across the street from the Bison Courtyard.
[3]
The Notice of Motion filed by the Attorney
General asserts three grounds upon which the subject Application for Judicial
Review should be struck out. These are that: the Court should exercise its
discretion to strike the application as Arctos lacks standing pursuant to s 18.1(1)
of the Federal Courts Act, RSC, 1985, c F-7 (“FC Act”);
the Court cannot grant the relief requested by Arctos pursuant to s 18.5 of the
FC Act; and, allowing Arctos access to the Court at this stage would circumvent
an exclusive statutory scheme for the resolution of Town planning disputes and
constitutes an abuse of the processes of this Court.
[4]
Some background to both the lease consolidation
and its procedural history, as well as the legislative regime, is necessary.
For clarity, it is perhaps useful to begin with the legislative background.
Relevant Legislative and Related
Background
i. The Canada National Parks Act
[5]
The Canada National Parks Act, SC 2000, c
32 (“National Parks Act”) describes the management and operation of Canada’s
national parks. Section 4(1) states that the parks are dedicated to the people
of Canada for their benefit, education and enjoyment, subject to the Act and
regulations, and that the parks shall be maintained and made use of so as to
leave them unimpaired for the enjoyment of future generations.
[6]
The Minister is responsible for the
administration, management and control of parks, including the administration
of public lands in parks (s 8(1)), and the maintenance or restoration of
ecological integrity, through the protection of natural resources and natural
processes, shall be the first priority of the Minister when considering all
aspects of the management of parks (s 8(2)). Powers in relation to land use
planning and development in park communities may not be exercised by a local
government body, except as provided in the agreement referred to in s 35 (s 9).
The Minister is also required to prepare a management plan for the park
containing a long-term ecological vision and other matters, which plan is to be
reviewed every ten years (s 11). In this matter, this was the Banff National
Park Management Plan (“Banff Management Plan”). The Governor in Council may
make regulations respecting a number of matters, including the issuance,
amendment and termination of leases, licences of occupation over public lands
in park communities for the purposes of residence, schools, churches,
hospitals, trade, tourism and places of recreation or entertainment (s
16(1)(g)(i)) as well as the control of businesses, trades, occupations and
other activities or undertakings (s 16(1)(n)). Such regulations may also
authorize the superintendent of a park, in the circumstances and subject to the
limits that may be specified in the regulations, to issue, amend, suspend or
revoke permits, licences and other authorizations in relation to any matter
that is the subject of regulations and to set their terms and conditions (s
16(3)(b)).
[7]
Additionally, a community plan for each park
community must be approved by Parliament and, in the case of the town of Banff,
accompanied by any zoning by-laws made under the agreement referred to in s 35
(s 33(1)). The National Parks Act also contains provisions for particular
parks. In the case of Banff, this includes s 35:
35 The
Governor in Council, having authorized the Minister to enter into the Town of
Banff Incorporation Agreement dated December 12, 1989, being an agreement for
the establishment of a local government body for the town of Banff in Banff
National Park of Canada, and to entrust to that body the local government
functions specified in the Agreement, may authorize the Minister to further
amend the Agreement.
ii. Parks Canada Agency Act
[8]
The Parks Canada Agency Act, SC 1998, c
31 (“PCAA”) establishes the Parks Canada Agency (“Agency”). The Minister is
responsible for and has the overall direction over the Agency (s 4(1) and (2)).
The Agency may exercise the powers and shall perform the duties and functions
that relate to national parks that are conferred on, or delegated, assigned or
transferred to the Minister under any Act or regulation (s 5(1)) and is
responsible for the implementation of policies of the Government of Canada that
relate to national parks (s 6(1)) and for the administration and enforcement of
specified Acts, including the National Parks Act and regulations made
thereunder (s 6(4)). The Agency has ancillary powers that permit it to do
anything necessary or incidental to its purposes (s 8).
iii. National Parks of
Canada Lease and License of Occupation Regulations
[9]
The National Parks of Canada Lease and
License of Occupation Regulations, SOR/92-25 (“Lease Regulations”) were
made pursuant to the National Parks Act. The Minister may, for any term not
exceeding 42 years and on such terms and conditions as she sees fit, grant
leases of public lands, including in the Town of Banff, where they are to be
used for the purpose of residence, trade, tourism, schools, churches, hospitals
and places of recreation or entertainment (s 3(1)(c) and (d), s 18(1)(c) and
(d)), and otherwise deal with leasing in the national parks.
iv. Banff Management Plan
[10]
The Banff Management Plan is created pursuant to
s 11 of the National Parks Act. It states that it will guide the overall
direction of Banff National Park for the next 10-15 years and will serve as a
framework for all planning and decisions within the park. The plan reflects
the policies and legislation of the Government of Canada. Section 6.2.2.1 describes
the current situation in Banff, listing eleven items. These include that the
Town of Banff Incorporation Agreement sets out the purposes and objectives for
the Town, and, to manage the Town’s impact on surrounding parklands, the
municipal boundary has been defined in the National Parks Act, the Town’s
permanent population is intended not to exceed 8,000 (Federal Census estimated
the 2006 permanent population at 6700). Section 6.2.2.3 entitled “Key Actions”,
includes that the Town’s permanent population (Federal Census) will not exceed
8,000 and that all decisions of Parks Canada and the Town of Banff, including
business licencing, shall proactively take into account this policy objective.
v. Town of Banff
Incorporation Agreement
[11]
The Town of Banff Incorporation Agreement (“Incorporation
Agreement”) is made pursuant to s 35 of the National Parks Act, as between the
Government of Canada and the Government of the Province of Alberta, and
establishes a municipal corporation, the Town of Banff, to provide local
government for the Town in accordance with its terms, effective January 1,
1990. As of that date, the Town had all of the rights, obligations, duties,
powers and functions, and was subject to the same limitations and restraints,
as provided for by the laws of Alberta to towns incorporated pursuant to the
laws of Alberta. Article 5 deals with the planning functions of the Town. The
Town was required to adopt a general municipal plan and a land use by-law as
well as to establish a municipal planning commission (subdivision approving
authority) and a development appeal board. Subdivision of a parcel of land
requires approval of the subdivision approving authority (5.8) and such
approval cannot be implemented until the Federal Minister approves any new or
amended lease required to effect the subdivision (5.14). Statutory plans
adopted and land use by-laws passed under the Incorporation Agreement and the Planning
Act, and every action taken or decision made pursuant to such plan or by-law,
is required to conform to the Banff Management Plan (5.15).
vi. Land Use Bylaw
[12]
The purpose of the Land Use Bylaw (or “Bylaw”)
is to provide for the orderly, beneficial and environmentally sensitive
development of the Town, having regard to stated objectives, and was passed in
accordance with the Incorporation Agreement. Pursuant to s 3.3, the Development
Appeal Board (“DAB”) is established and is to hear all appeals with respect to
development permit and subdivision applications. Section 5 deals with the
subdivision of land, including that the Municipal Planning Commission (“MPC”) shall
not approve an application for subdivision unless, except when conditions are
imposed pursuant to 5.4.2, the proposed subdivision conforms to the provisions
of the Alberta Municipal Government Act, the Incorporation Agreement, the Banff
Management Plan, any applicable statutory plan and the Bylaw (s 5.5.5(c)).
Further, a subdivision approval by the MPC shall not be implemented until the
Minister has approved any new or amended lease required to effect the
subdivision (s 5.3.7).
vii. Banff Community Plan
[13]
The Banff Community Plan arises pursuant to s 33
of the National Parks Act and sets out the vision, goals, objectives and
indicators for the Town of Banff. Appendix A sets out the context for the
plan. This notes that, historically, the administration of the town was the
responsibility of Parks Canada but that this changed in 1990 when the
Government of Canada and the Province of Alberta transferred most municipal
government powers to an elected Town Council under the Incorporation
Agreement. Following incorporation, the Town was required to adopt a municipal
plan, as legislated by the province, to guide current and future land use.
Reference is made to the regional context of the Banff Community Plan,
including s 4 of the National Park Act, as well as to Banff population growth.
In that regard, the 1998 Banff Community Plan utilized an employment-based
model to provide an estimate of future population growth based on 350,000 ft2
of new commercial development. The 2007 Banff Community Plan accommodates a
permanent population of less than 10,000 permanent residents. As to the
interpretation of the 2007 Community Plan, this identifies a vision for Banff
and recognizes that the vision will evolve over time. Appendix B describes the
legal framework for the Banff Community Plan, referencing the requirement of
the Municipal Government Act of Alberta to adopt a municipal development plan (the
Banff Community Plan), and that the Town operates under its own distinctive
legislation, the Incorporation Agreement. The Appendix states that the Banff
Community Plan and related bylaws govern administration, management and land
use within the town boundaries. The Minister responsible for Parks Canada has
the authority to approve the plan and all amendments. The Incorporation
Agreement specifies (s 5.15) that all plans and bylaws must conform with the
Banff Management Plan approved by the Minister. Parks Canada is represented on
the MPC and the DAB and also retains final approval for subdivision development
and Land Use Bylaw amendments.
Lease Consolidation Background
[14]
Lot 20 was originally part of a lease that
included Lots 18-20. The owners of Lots 18-20 entered into an agreement to
sell Lot 20 to one of the owners of Lots 21-24 and a separate lease for Lot 20
was issued by Parks Canada on August 16, 2000. Shortly thereafter it was
determined that severing Lot 20 constituted a subdivision and, therefore, a
subdivision approval would be required. An application was made and was
granted by the MPC, Banff’s subdivision approving authority, on February 14,
2001 (“2001 Subdivision Approval”). It is not disputed that notice of the 2001
Subdivision Approval was advertised and sent to adjacent property owners
providing details of the right of appeal. It also appears that no appeals were
received at that time.
[15]
Significantly, the MPC required, as a condition
of the 2001 Subdivision Approval, that Lot 20 be consolidated with the lease
for Lots 21-24. However, the consolidation did not occur at that time. In
2009, Fuji purchased Lot 20.
[16]
The leasehold interest in Lots 21-24 was shared
between two owners by private agreement, Homestead Inn (“Homestead”) and
Melissa’s Restaurant (“Melissa’s”). Each co-owner held a certificate of title
for its undivided share of the leasehold interest. In 2009, Fuji purchased the
co-ownership interest of Homestead. In 2015, Fuji applied to redevelop
Homestead at which time an issue arose as to whether the prior agreement of the
co-owners amounted to an unauthorized subdivision of Lot 24. The MPC approved
the development application but this was overturned on appeal to the DAB, one
of the appellants was Arctos. In its June 24, 2015 decision (“2015 DAB
Decision”), the DAB also ordered that the consolidation of the leases for Lot
20 and Lots 21-24 be completed and, to rectify the unauthorized subdivision, an
application was to be made by Fuji to subdivide Lot 24, both of which were
conditions of any future development.
[17]
On August 27, 2015, Parks Canada wrote to Fuji
and advised that clause 7(a) of its March 10, 1978 lease required Fuji to
obtain Parks Canada’s consent prior to subdivision of lands under lease and
that this had not been requested or granted, referencing the 2015 DAB Decision.
On January 26, 2016, the Department of Justice wrote to Fuji in this regard.
Parks Canada subsequently advised Fuji, by email of August 29, 2016, that it
required that the separation of interests in the Lease for Lots 21-24, and, the
outstanding development condition concerning the consolidation of Lot 20 and
Lots 21-24 under a single lease, be remedied before the application for any
development permit was filed. This would entail the transfer of ownership of
interest, consolidation of Lot 20 with Lots 21-24 in one leasehold and the
issuance of a new lease.
[18]
In 2016, Fuji purchased the remaining co-owner’s
(Melissa’s) undivided leasehold interest in Lots 21-24, a new land title
certificate for the transfer of the leasehold interest in those lots was issued
by the Province of Alberta on November 4, 2016. In the result, Fuji was now
the sole owner of Lots 21-24. The Consolidated Lease for Lots 20-24 was issued
to Fuji by the Minister on November 25, 2016. A new land title certificate for
the park lease was issued to Fuji, for Lots 20-24, on January 10, 2017.
[19]
Fuji then applied again to the MPC for a
development permit. The new proposal sought to develop both the Homestead and
Melissa’s properties. This was opposed by Arctos. However, on December 14,
2016, the MPC granted the development permits on the conditions set out,
including that prior to the release of the development permits Fuji consolidate
Lots 20-24. Arctos then filed three appeals with the DAB.
[20]
Appeal #06-16, filed on December 8, 2016
concerned consolidation of the leases for Lot 20 and Lots 21-24. Arctos
asserted that the consolidation of Lot 20 and Lots 21-24 was a subdivision, on
the basis that it constitutes a boundary change to two or more adjoining
parcels of land (relying on s 5.1(1)(i)(ii) of the Incorporation Agreement and
therefore required subdivision approval before consolidation could proceed (relying
on s 5.14 of the Incorporation Agreement). Arctos asserted that the lease
consolidation by the Minister was not sufficient; there must also be a
subdivision approval. Further, that the MPC or an employee of the Parks Canada
Agency (if exercising powers conferred on the subdivision authority) acted
outside its jurisdiction, erred or acted unreasonably by failing to consider or
properly considering: whether the land being consolidated was suitable for the
purpose, including compatibly with the National Parks Act, the Incorporation
Agreement and the Banff Management Plan; the obligation to proactively take
into account the Banff Management Plan policy objective of ensuring that the
population of Banff will not exceed 8,000; traffic congestion, and; failing to
provide Arctos with meaningful consultation with respect to the consolidation. Appeals
#12-16 and #13-16 were filed on December 23, 2013 and are concerned with the
approval of the development permits, the basis for those appeals included an
alleged lack of subdivision approval, that the proposed development did not
comply with the Banff Management Plan requirement that all development be
proactively managed to ensure that the permanent population of the Town does
not exceed 8,000 and, alternatively, that the MPC failed to exercise its
authority to impose appropriate conditions on the development permits. The
appeals were heard in January 2017 and were adjourned sine die pending
receipt of further information.
[21]
The Notice of Application for judicial review of
the Lease Consolidation Decision was filed on January 3, 2017. The grounds for
the application include that Arctos owns land contiguous to the consolidated
lease property and is directly and adversely affected by the Lease Consolidation
Decision which will enable Fuji to circumvent the subdivision process mandated
by the Incorporation Agreement, and/or facilitates increased development
thereby exacerbating population growth pressures in the Town. Further, if the
Lease Consolidation Decision was made by an official of the Parks Canada Agency,
then it was made without delegated authority or outside the scope of that
authority as the consolidated lease was made without the approval of the
subdivision authority and/or the Lease Consolidation Decision failed to
proactively take into account the population policy objective. Alternatively,
and for the same reasons, if the Minister made the Lease Consolidation Decision
then the Minister acted without or beyond her jurisdiction. And either
decision-maker acted unreasonably by failing to require the leaseholder to
comply with the obligation to obtain approval of the subdivision approving
authority, failing to take into account the obligation to take proactive steps
to keep the Banff population at or below 8,000 permanent residents and by
failing to consider its responsibility under the National Parks Act to maintain
and make use of Banff National Park so as to leave it unimpaired for future
generations. The decision-maker also breached the principles of procedural
fairness and/or acted for improper purposes in making the Lease Consolidation
Decision without first requiring subdivision approval as by doing so they
denied Arctos the rights of appeal afforded by the Incorporation Agreement and
the Land Use Bylaw, which appeal process also serves the public interest by
ensuring compliance with population growth and commercial development
limitations of the Incorporation Agreement and the Banff Management Plan.
Issue
[22]
The sole issue on this motion is whether Arctos’
application for judicial review should be struck out.
Positions of the Parties
A.
Attorney General
[23]
The AG asserts that while it is well established that
dismissal of an application for judicial review on a preliminary motion should
only be exercised where the application is so clearly improper as to be bereft
of any possibility of success (Pharmacia v Canada (Minister of National Health
and Welfare), [1994] FCJ No 1629 (FCA) at para 10 (“Pharmacia”)),
there is an exception to that general rule where the applicant lacks standing (Apotex
v Canada (Governor in Council), 2007 FCA 374 at paras 13-14 (“Apotex”);
Canwest MediaWorks Inc v Canada (Minister
of Health), 2007 FC 752 at para 10, affirmed
in 2008 FCA 207 (“Canwest”); Finlay v Canada (Minister of Finance),
[1986] 2 S.C.R. 607 at para 20 (“Finlay”) which is the circumstance in this
matter.
[24]
Section 18.1 of the FC Act states that an application
for judicial review may be made by the Attorney General of Canada or by anyone
directly affected by the matter in respect of which relief is sought. An
applicant will be directly affected where the decision under review affects the
applicant’s legal rights or obligations or directly prejudices them (Rothmans
of Pall Mall Canada Ltd v Minister of National Revenue, [1976] 2 FC 500
(FCA) at para 13 (“Rothmans”); Canwest at para 13). “Officious inter-meddlers” or “mere
busy bodies” do not have standing (Morsebey Explorers Ltd v Canada (Attorney
General), 2006 FCA 144 at para 17) and even if an applicant has a
commercial interest affected by a decision, but was not a party to it, they
will not have standing to seek judicial review (Canwest at para 16; also
see Rothmans at para 13). Given the statutory leasing regime applicable
to this matter and the ongoing DAB appeal process, Arctos has no standing to
obtain relief from this Court.
[25]
In this matter, Arctos is not a party to the Lease Consolidation Decision
and only Fuji is directly affected by it. The Lease Consolidation Decision has
no actual impact on any legal right or obligation of Arctos, nor does Arctos
demonstrate a direct prejudice. Arctos has failed to show how the Lease
Consolidation Decision is a “matter of
importance to their business” or the “maintenance of Banff” as they assert. Further, the
suggestion of an alleged subdivision, created by the uniting of two leases, and
its potential negative impact to the population of Banff is speculative, overly
general and these are concerns that fit within the realm of municipal planning.
They have nothing to do with the administration and commercial issues
surrounding the decision to consolidate a lease. In any event, Arctos has not
been denied its right of appeal to the proper jurisdiction, as these matters
are presently before the DAB.
[26]
The Lease Consolidation Decision was an administrative commercial
transaction curing a condition from a prior subdivision and is a land
administration and management matter entirely within the discretionary ambit of
Parks Canada arising from the legislative regime. Lease consolidation by the
Minister neither constitutes nor triggers development or subdivision approval
by the Town. The Incorporation Agreement serves to incorporate by reference
most general municipal statutory laws of the Province of Alberta but ensures
the continuing jurisdiction of Canada. In the result, most Alberta planning
legislation applies to the Town by way of federal instruments of entrustment,
but remains subject to substantial federal supervision and control.
Conversely, discretionary powers of leasing remain in the hands of the
Minister. These are separate processes and Arctos is actively participating in
the development review of a proposal concerning the lands in question. In any
event, the municipal process creating the condition of the lease consolidation
occurred in 2001. There are no new rights arising. Further, procedural rights
do not occur in the abstract; Arctos does not have procedural rights in one
forum triggered by another.
[27]
Nor is there a free-standing obligation to the general public of a duty
of fairness in administrative law decisions in which the public is not directly
affected. Moreover, the consolidated lease is a contract made pursuant to a
statutory power and it is inappropriate to import a public law duty into what
is predominantly a commercial relationship.
[28]
The Attorney General also submits that the 2010 Banff Management Plan is
a guideline which offers strategic direction (s 2.4) and is not law (Brewster
Mountain Pack Trains Ltd v Canada (Minister of the Environment), 41 ACWS (3d) 761 (FCTD) at para 27; Canadian
Parks and Wilderness Society v Maligne Tours Ltd, 2016 FC 148 at para 91).
Using a so called population cap as a specific prescriptive measure to prevent
the Superintendent from considering lease consolidations does not accord with
the guidance provided by the Banff Management Plan or with any jurisprudence.
And, had Parliament intended to impose a limit or population cap in the Town,
it would have done so by regulation in which event this would not be referred
to in the Banff Management Plan as a “policy
objective”, “anticipated”,
or “intended”. Nor is
the Incorporation Agreement a law.
[29]
In respect of public interest standing, the Attorney General states that
it would be an exceptional and unusual case if an operational lease
consolidation was a matter of public interest and that public interest standing
is not met by the mere assertion that no one else will bring the matter before
the Court. The three factors for public interest standing set out in Canadian
Council of Churches v Canada (Minister of Employment and Immigration),
[1992] 1 S.C.R. 236 at para 37 (“Canadian Council of Churches”) are to be
applied in a liberal and generous manner and these are interrelated
considerations to be weighed cumulatively, not individually (Downtown
Eastside Sex Workers United Against Violence Society v Canada (Attorney
General), 2012 SCC 45 at paras 2 and 53 (“Downtown Eastside Sex Workers”)).
Arctos does not address how it meets the test and, on the Attorney General’s
application of the test in this case, a finding in favour of public interest
standing is not warranted.
[30]
The Attorney General’s written submissions address only the issue of
standing and do not address the other two grounds set out in its motion to
strike, being that the Court cannot grant the relief sought, and that allowing
Arctos access to the Court at this stage would circumvent the statutory Town
planning dispute resolution regime, thereby constituting an abuse of process.
B.
Fuji’s Position
[31]
Fuji endorses the Attorney General’s submissions concerning Arctos’ lack
of standing and addresses the Attorney General’s third ground for its motion to
strike, asserting that Arctos’ attempt to apply for judicial review is an
improper collateral attack on the Town’s municipal planning process and on a
final unappealed decision of the MPC.
[32]
Fuji submits that the MPC approved the subdivision affecting Lot 20,
conditional upon the consolidation of leases for Lot 20 and Lots 21-24. The
correct forum to appeal the 2001 Subdivision Approval, and to oppose the
resultant lease consolidation, was the municipal planning process. The 2001 Subdivision
Approval was not appealed. Arctos purports to appeal to the MPC the “concurrence of the Town” in
Parks Canada’s issuance of the consolidated lease and has appealed the
decisions of the MPC to the DAB. The DAB heard submissions on the appeals over
two days and then adjourned sine die for additional environmental
information and federal census data. Those appeals remain in progress.
[33]
And, although Arctos argues that Parks Canada failed to take “into account….the obligation to take
proactive steps to keep the population of Banff at or below 8,000 permanent
residents”, there is no magic cap of 8,000 and, in any event, the
very recent federal census data – on which Arctos expressly relies – shows a
population of fewer than 8,000. The real foundation of Arctos’ judicial review
application is the notion that the lease consolidation by Parks Canada circumvented
the subdivision approving authority, the MPC, by failing to obtain the MPC’s
prior approval. However, this ignores that the 2001 Subdivision Approval not
only approved the lease consolidation but expressly required it. Now, years
later, Arctos has returned a second time to the MPC, and on appeal to the DAB,
apparently seeking some sort of reconsideration or reversal of the 2001 MPC
decision. This impliedly concedes that the municipal planning process is the
proper forum. Yet, Arctos now also attempts a collateral attack on that forum
by applying in this Court for a review of Parks Canada’s discretionary
administrative act, making the very same arguments it made before the DAB.
C.
Arctos’ Position
[34]
Arctos submits that when considering a motion to strike based on a lack
of direct or public interest standing the Court must consider standing in the
context of the ground of review on which the application is based (Irving
Shipbuilding Inc v Canada (Attorney General), 2009 FCA 116 at para 28 (leave
to appeal to the Supreme Court of Canada dismissed in 2009
CarswellNat 3243 (WL)) (“Irving Shipbuilding”)).
[35]
Arctos provides its interpretation of the applicable legislative and
related regime, referencing in particular s 6.2.2.3 of the Banff Management
Plan and s 4.3 of the Incorporation Agreement
and, based on this, submits that there is a legal obligation to consider and
respect Banff population limits which falls independently on both the Minister
and on the Town when making lease consolidation decisions or subdivision
approvals. Further, that the legal sequence of decision making requires the
Town to first exercise it authority, which may include making its approvals
subject to conditions subsequent, and the Minister then approving the new or
amended lease to effect the subdivision or development permit. Arctos submits
that the Minister is legally obliged to proactively consider limits to
population growth in the Town of Banff where its population approaches or
exceeds the policy objective stated in the Banff Management Plan and there is
no evidence that the Minister considered whether the Lease Consolidation Decision
would affect Banff’s population.
[36]
Arctos submits that because it operates its business in Banff from a
leasehold property it has an independent right to challenge the Lease
Consolidation Decision flowing from its interest in ensuring that the Town
remains the special place it is required to be by the Incorporation Agreement
and the Banff Management Plan. And, as a business in Banff, Arctos has special
rights and obligations which distinguish it from the interests of other
citizens of Canada.
[37]
It submits that it is directly affected by the Lease Consolidation
Decision because, as a business in Banff, it is prejudicially affected by the
decision which failed to consider, or to reasonably consider, Town population
limits. Further, that procedural fairness rights enjoyed by Arctos in relation
to the Town of Banff planning regime were adversely affected because the Lease
Consolidation Decision preceded the Town planning decisions, prejudicing Arctos’
ability to raise its concerns about population limits.
[38]
And, even if it was not directly affected by the Lease Consolidation
Decision, Arctos submits that it meets the test for public interest standing as
there is a serious justiciable issue raised, Arctos has a real stake or genuine
interest in it and the judicial review application is a reasonable and
effective way to bring the issue before the courts. While the Attorney
General’s position is that no one other than Fuji has standing to challenge the
Lease Consolidation Decision, a developer is unlikely to seek judicial review
challenging its own development interests. If Arctos cannot bring this
judicial review, then no one would challenge the Lease Consolidation Decision.
[39]
Further, the Attorney General is also asking this Court on a motion to
strike to delve into complicated facts contained in hundreds of pages of motion
materials and to resolve conflicting statutory interpretations of a unique
planning regime in order to determine whether it is plain and obvious that
Arctos is without standing. The Attorney General does this while not making
reference to whether the Lease Consolidation Decision considered population
growth in Banff.
[40]
In summary, Arctos submits that the Minister could not disregard her
duty to consider population limits in the Town when making the Lease
Consolidation Decision. The Minister’s Lease Consolidation Decision and the
Town’s subdivision and development approval authorities are integrated with one
another in the unique legislative regime applicable to Banff. In that context,
the Minister must proactively consider how the Lease Consolidation Decision
relates to the Town development decisions and the population limit defined in
the Banff Management Plan. Arctos disputes the submission of the Attorney
General that the limits to growth in the Town are a matter of discretion which
may, or may not, be taken into account by the Minister or her delegates. Given
the unique obligation of the Minister to ensure that the Town adheres to this
limit in municipal planning and development functions, and given that the Town
is very near, or may actually exceed, that limit (depending on the survey
taken), this is a matter of legal obligation falling on the Minister.
[41]
Arctos also submits that the relief being sought is within the powers
expressly conferred upon the Federal Court by s 18.1(3) of the FC Act.
Therefore, there is no merit to the second ground of attack in the motion to
strike, nor has the Attorney General advanced argument on this ground.
[42]
As to the third ground, being the alleged abuse of process, Arctos
submits that this ground is not fully developed in the submissions by the
Attorney General, which is fatal to the discharge of its onus of proof, and is
without merit. The Town and the Minister exercise independent responsibilities
to ensure compliance with the population limits in the Town and Arctos is
entitled to challenge both, independently of one another, especially as the
Minister’s decision precedes the municipal planning decisions. The Lease
Consolidation Decision is assurance of compliance with the Banff Management
Plan for purposes of future municipal decisions and is binding on the Town
because of the Minister’s final authority over planning matters. In this
context, there is no abuse of process by bringing the judicial review
application while also raising Arctos’ concerns before municipal institutions.
D.
Supplementary Submissions on P&S Holdings Ltd
[43]
On April 5, 2017, the parties were directed by the Court to make
supplementary written submissions to address the relevance, if any, of the
recent decision of the Federal Court of Appeal in P&S Holdings Ltd v Canada
(“P&S Holdings”), 2017 FCA 41 to the issue of standing in the motion
to strike. The parties each filed their submissions, including a reply
submission by the Attorney General. I have considered these submissions in
rendering this decision.
Analysis
[44]
In this matter, the ground primarily relied upon by the Attorney General
in its motion to strike is that Arctos lacks either direct or public interest
standing pursuant to s 18.1(1) of the FC Act.
[45]
The jurisprudence is clear that a motion to strike an application for
judicial review will only be granted in exceptional cases (Pharmacia at
para 15; Rahman v Canada (Public Service Labour Relations Board), 2013
FCA 117 at para 7; Apotex at para 16; As stated by the Federal Court of
Appeal in Canada (National Revenue) v JP Morgan Asset Management (Canada)
Inc, 2013 FCA 250 (“JP Morgan”):
[47] The Court will strike a notice of
application for judicial review only where it is “so clearly improper as to be
bereft of any possibility of success”: David Bull Laboratories (Canada)
Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at page 600 (C.A.). There
must be a “show stopper” or a “knockout punch” – an obvious, fatal flaw
striking at the root of this Court’s power to entertain the application: Rahman
v. Public Service Labour Relations Board, at paragraph 7; Donaldson v.
Western Grain Storage By-Products, at paragraph 6; cf. Hunt
v. Carey Canada Inc., [1990] 2 S.C.R. 959.
[48] There are two justifications for
such a high threshold. First, the Federal Courts’ jurisdiction to strike a
notice of application is founded not in the Rules but in the Courts’ plenary
jurisdiction to restrain the misuse or abuse of courts’ processes: David
Bull, supra at page 600; Canada (National Revenue) v. RBC Life
Insurance Company. Second, applications for judicial review must be brought
quickly and must proceed “without delay” and “in a summary way”: Federal
Courts Act, supra, subsection 18.1(2) and section 18.4. An
unmeritorious motion – one that raises matters that should be advanced at the
hearing on the merits – frustrates that objective.
[46]
As to motions to strike based on a lack of standing, the Federal Court
of Appeal in Apotex stated that there was really only one question: was
it plain and obvious that the application for judicial review was bereft of
success. It also held such motions should only be allowed sparingly and in
very clear cases:
[13] It is not always appropriate for
motions to strike to be the context to make a binding decision on a question of
standing, especially when the motion is to strike out an application for
judicial review. Rather, a judge should exercise her discretion as to whether
it would be appropriate in the circumstances to render a decision on standing,
or whether a final disposition of the question should be heard with the merits
of the case. Evans J. (as he then was) briefly discussed the considerations a
judge should take in exercising her discretion in Sierra Club of Canada v.
Canada (Minister of Finance), [1999] 2 F.C. 211 (T.D.) (“Sierra Club”)
at paragraph 25 (emphasis added):
In my view, a court should be prepared to terminate an
application for judicial review on a preliminary motion to strike for lack of
standing only in very clear cases. At this stage of the proceeding, the
court may not have all the relevant facts before it, or the benefit of full
legal argument on the statutory framework within which the administrative
action in question was taken. To the extent that the strength of the
applicant's case, and other factors, are relevant to the ground of discretionary
standing, the Court may not be in a position to make a fully informed decision
that would justify a denial of standing.
I agree with Evans J. that this discretion should be
exercised sparingly. This is affirmed by the principle that applications
for judicial review are supposed to be decided summarily, and that
interlocutory motions are to be avoided. This, indeed, as will be
discussed below, explains why the test for the motion to strike on an
application for judicial review is that the Application would be “bereft of
success.”
[47]
Further, the question of standing should not be addressed in the
abstract but in the context of the ground of review on which an applicant
relies. This was noted by Justice Evans in Irving Shipbuilding at para
28:
28 In my view, the question of the appellants'
standing should be answered, not in the abstract, but in the context of the
ground of review on which they rely, namely, breach of the duty of procedural
fairness. Thus, if the appellants have a right to procedural fairness, they
must also have the right to bring the matter to the Court in order to attempt
to establish that the process by which the submarine contract was awarded to
CSMG violated their procedural rights. If PWGSC owed the appellants a duty of
fairness and awarded the contract to CSMG in breach of that duty, they would be
"directly affected" by the impugned decision. If they do not have a
right to procedural fairness, that should normally conclude the matter. While I
do not find it necessary to conduct an independent standing analysis, I shall
briefly address two issues that arose from the parties' submissions.
(also see: P&S Holdings Ltd v Canada, 2015 FC 1331
at para 35 (aff’d in P&S Holdings))
[48]
As to those who are directly affected by the decision under review, the
Federal Court of Appeal in Forest Ethics Advocacy Assn v National Energy
Board, 2014 FCA 245 described this as follows:
29 Under subsection 18.1(1) of the Federal
Courts Act, R.S.C. 1985, c. F-7, only those who are "directly
affected" can ask this Court to review a decision.
30 Forest Ethics is not "directly affected"
by the Board's decisions. The Board's decisions do not affect its legal rights,
impose legal obligations upon it, or prejudicially affect it in any way: League
for Human Rights of B'Nai Brith Canada v. R. (F.C.A.); Rothmans
of Pall Mall Canada Ltd. v. Minister of National Revenue (Fed.
C.A.); Irving Shipbuilding Inc. v. Canada (Attorney General) (F.C.A.).
Therefore, Forest Ethics does not have direct standing to bring an application
for judicial review and invoke the Charter against the Board's decisions.
[49]
In this matter, the grounds of review set out in Arctos’ Notice of
Application are, essentially, that Arctos was directly and adversely affected
by the Lease Consolidation Decision because the Minister, or her delegate,
acted outside her jurisdiction or unreasonably by failing to consider or
failing to proactively take into account the policy objective of ensuring that
Banff’s population does not exceed 8,000 permanent residents and to ensure that
Banff National Park is left unimpaired for the enjoyment of future generations;
because the Lease Consolidation Decision was made without the prior approval of
the subdivision approving authority; and because the Minister or her delegate
breached the principles of procedural fairness and/or acted for improper
purpose by making the Lease Consolidation Decision without first requiring
subdivision approval as they thereby denied Arctos rights of appeal afforded to
it by the Incorporation Agreement and the Land Use Bylaw, which would protect
Arctos’ individual interests as adjacent land lease holders and the public
interest in ensuring compliance with population growth and commercial
development limits.
(i)
Population of Town of Banff
[50]
As to Arctos’ submission that it was directly and adversely affected by
the Lease Consolidation Decision because the Minister or her delegate failed to
consider or to proactively take into account the policy objective of ensuring
that Banff’s population does not exceed 8,000 permanent residents and,
relatedly, to ensure that Banff National Park is left unimpaired for the
enjoyment of future generations, I do not reach that conclusion.
[51]
Arctos is not a party to the lease which was consolidated. There is
nothing in the legislative leasing regime that suggests that a non-party to a
lease has any rights, participatory or otherwise, arising with respect to the
making of leasing decisions. Indeed, unlike P&S Holdings, Arctos
does not assert that they are owed a duty of procedural fairness such that they
would be entitled to participate in consolidation of leasing decisions giving
rise to standing. Nor is there any evidence that the Lease Consolidation Decision
affects Arctos’ legal rights or imposes legal obligations upon it or directly
prejudicially affects it in any way. In that regard, Arctos submits only that
the Lease Consolidation Decision is a matter of importance to its business in
Banff and to the maintenance of Banff National Park more generally. It makes
only the general assertion that the treasure that is Banff National Park will
be denigrated for it, its business and the community if development occurs
without proper regard for the regulatory and policy framework.
[52]
And, to the extent that Arctos is alleging standing on a commercial
basis, in Canwest this Court held that a commercial interest in the
issues in a judicial review application, in and of itself, is not a sufficient
basis for standing (Canwest at para 17; also see Rothmans;
Aventis Pharma Inc v Canada (Minister of Health), 2005 FC 1396 at para 19).
[53]
Accordingly, I am not convinced that Arctos has a sufficient personal
interest in the Lease Consolidation Decision to warrant standing.
[54]
This leaves the question of whether Arctos should, as a matter of
judicial discretion, be granted public interest standing in these
circumstances. In Downtown Eastside Sex Workers, the Supreme
Court of Canada addressed the law of standing noting the rationale behind
limiting standing and that the traditional approach was to limit standing to
persons whose private rights were at stake or who were specially affected by
the issue. However, that in public law cases, such as the one before it, the
Courts have relaxed these limitations and have taken a flexible, discretionary
approach to public interest standing, guided by the purposes which underlie the
traditional limitations. There, the Downtown Eastside Sex Workers United
Against Violence Society (“Society”), whose objects included improving working
conditions for female sex workers, and Ms. Kiselbach, a former sex worker
working as a violence prevention coordinator, launched a broad constitutional
challenge to the prostitution provisions of the Criminal Code.
[55]
The Supreme Court
of Canada stated that, in determining whether to grant public interest
standing, the Courts must consider three factors:
37 In exercising the discretion to grant public
interest standing, the court must consider three factors: (1) whether there is
a serious justiciable issue raised; (2) whether the plaintiff has a real stake
or a genuine interest in it; and (3) whether, in all the circumstances, the
proposed suit is a reasonable and effective way to bring the issue before the
courts: , at p. 598; , at p. 626; , at p. 253; Hy and
Zel's, at p. 690; , at paras. 35 and 188. The plaintiff seeking public
interest standing must persuade the court that these factors, applied
purposively and flexibly, favour granting standing. All of the other relevant
considerations being equal, a plaintiff with standing as of right will
generally be preferred.
[56]
The Supreme Court of Canada also stated that the factors should be seen
as interrelated considerations to be weighed cumulatively, not individually,
and in light of their purposes.
[57]
To constitute a serious issue, the question
raised must be a substantial constitutional issue or an important one and the
claim must be far from frivolous, although the Court should not examine the
merits of the case other than in a preliminary manner. In the matter before me,
there is no constitutional issue and, viewed in isolation, the decision to
consolidate Lot 20 and Lots 21-24 is not an important matter.
[58]
However, there is a fundamental dispute between
the parties as to whether the Minister is required, when making a discretionary
leasing decision, to proactively consider the policy objective that the
population of the Town of Banff will not exceed 8,000 permanent residents. Put
otherwise, whether the Minister’s discretion is not fettered by the policy or,
as Arctos submits, whether a legal obligation arises to take the policy into
consideration. And, if Arctos is correct, then whether the Minister reasonably
considered the population limits in making the Lease Consolidation Decision.
[59]
Given the relative complexity of the legislative
regime as interrelated with the municipal planning and development approval
process; the fact that the broader issue raised by Arctos, the impact on a
national park of the population of the Town of Banff, is one of public
interest; and, that there are no participatory rights of third parties when
leasing decisions are made, I am satisfied that a serious justiciable issue
exists.
[60]
As to the nature of the interest, this factor is
concerned with whether Arctos has a real stake in the proceeding or is engaged
with the issues they raise. In my view, this is not a situation such as Canadian
Council of Churches where the Court held that the applicant had a genuine
interest as it enjoyed the highest possible reputation and had demonstrated a
real and continuing interest in the problems of refugees and immigrants (at
para 39). Nor is it similar to Downtown Eastside Sex Workers where the
Society had considerable experience with sex workers, was familiar with their
interests and was a registered non-profit organization run by and for current
and former sex workers, whose mandate and objects promoted the improved lives
and working conditions for those persons. And there Ms. Kiselbach’s affidavit
evidence made it clear that she was directly and significantly affected by the
prostitution laws for 30 years and she was also now employed as a violence
prevention coordinator.
[61]
Here, although Arctos states its concern as
being the population of the Town, and related impacts on the national park,
viewed in context, this is but one of many objections it has brought to Fuji’s
development applications. Further, there is no evidence that, outside of
Arctos’ objections to Fuji’s development, which is similar to and would compete
with its own, that Arctos has had a longstanding and genuine concern with the
permanent resident population of the Town. Nor does the evidence indicate that
Arctos has a distinctive or important interest in the population issue
different from that of others. In sum, this factor does not weigh in Arctos’ favour.
[62]
As to the third factor, other reasonable and
effective manners in which the matter can be brought before the Court, the
Supreme Court of Canada held that this requires consideration of whether the
proposed suit is, in all of the circumstances and in light of various
considerations, a reasonable and effective means to bring the challenge to
Court. Here, Arctos has launched three appeals before the DAB, all of which
raise the issue of the Banff population policy statement. Thus, to the extent
that the MPC was required but failed to duly consider that matter, it will be
addressed by the DAB’s decisions. And, because the DAB will render those
decisions in the context of its experience with and knowledge of the Town’s
prior municipal planning and development, it will be well placed to assess the
population concern raised by Arctos and, as pointed out by the Attorney
General, if Arctos disagrees with those decisions, it has a right of appeal to
the Alberta Court of Appeal. Given that the DAB appeals have been heard and
its decisions are outstanding, this may also be a situation where the
application for judicial review is premature.
[63]
The Attorney General is of the view that the
discretionary leasing decision of the Minister is a separate process and
distinct from the municipal planning and development decisions of the Town by
way of the MPC and DAB. Thus, the Lease Consolidation Decision does not
require consideration of the population policy statement. If this is so, then
the application for judicial review is not an effective means of bringing the
population concern before the Court. Conversely, if it was a relevant
consideration, then the appeals to the DAB will not remedy any failure of the
Minister to reasonably consider that issue when rendering the Lease Consolidation
Decision. That said, on a practical level, approval for the development
applications will not be granted if the DAB determines that the population
concern is warranted and precludes approval of the proposed development.
[64]
Viewed in whole, these factors could potentially support granting of
public interest standing to Arctos and therefore, preclude the motion to
strike. However, as discussed below in the context of the subdivision issue, the
more persuasive basis for denying the motion to strike is that it is not plain
and obvious that the application for judicial review will not succeed.
(ii)
Subdivision
[65]
In my view, Arctos’ assertion that the Lease Consolidation Decision was
made without prior subdivision approval, as it concerns Lot 20, is without merit
and it is plain and obvious that it cannot succeed. The 2001 Subdivision
Approval of the MPC authorized the subdivision of Lot 20 from Lots 18-20, with
the explicit condition that the leases for Lot 20 and Lots 21-24 be
consolidated. It is clear from the record that the Lease Consolidation
Decision was made in the context of the 2001 Subdivision Decision. In that
regard, in the 2015 DAB Decision made in respect of Fuji’s first application
for a development permit, the DAB stated that counsel for Arctos “acknowledged the fact that it had been
conceded that consolidation of lots 20 and lots 21-24 is required as a
condition of development and that no further arguments need to be made in this
regard”. The DAB stated that both the appellant, Arctos, and the
respondent, Fuji, had agreed that the leases comprising of Lot 20 and Lots
21-24 must be consolidated prior to development and ordered the
consolidation as a condition of any future development.
[66]
In sum, the Lot 20 subdivision was approved by the 2001 Subdivision
Decision, with the condition of lease consolidation. On June 24, 2015 that
condition was restated by the 2015 DAB Decision as a condition of any future
development. The Lease Consolidation Decision is dated November 2016.
Accordingly, Arctos’ assertion that the Lease Consolidation Decision was made
without prior subdivision approval cannot succeed.
[67]
However, the DAB also found that an unapproved subdivision had occurred
which must be rectified prior to development and ordered that Fuji submit an
application for subdivision, and successfully subdivide Lot 24, prior to any
future development.
[68]
By email of August 29, 2016, Parks Canada referenced the 2015 DAB
Decision. Therein Parks Canada addressed the two measures that were required
by Fuji to address two lease default issues. First, the separation of
interests in the lease for Lots 21-24 (i.e. the unauthorized subdivision).
Second, the outstanding development condition for consolidation of Lot 20 with
Lots 21-24. The email states that that “pursuant to section 13 of the Lease of Lots 21-24, Parks Canada
requires that the separation of interests in that lease, and the outstanding
development condition for consolidation of Lot 20 with Lots 21-24 under a
single lease, be remedied before the application for any development permit is
filed. This will entail the transfer of interest, consolidation of Lot 20 with
Lots 21-24 in one leasehold, and the issuance of a new lease with common terms
governing use as Commercial Accommodation.”
[69]
Parks Canada noted that, as found by the DAB, rectifying those matters
was necessary to avoid violation of Article 5.8 of the Incorporation Agreement,
which states that no person shall subdivide a parcel within the town site
without the approval of the subdivision approving authority, and also
referenced s 5.1.1 of the Land Use Bylaw, which states that no person,
corporation, or agency shall subdivide a parcel of land or do any act on land that
may have the effect of subdivision, without the approval of the MPC or, on
appeal, of the DAB, and to avoid violation of the DAB’s order concerning
successful subdivision of Lot 24 prior to any future development. Parks Canada
stated that the approach discussed in the email would also facilitate
development as s 5.2(4) of the Incorporation Agreement requires that when
a development involves construction of a structure over the boundaries of
adjoining lots, any development permit issued shall be subject to the condition
that prior to release of a development permit, the owner shall consolidate the
leases for the lots involved. In the result, Parks Canada was of the view that
the Town would not be in a lawful position to release a development permit
until the matters were resolved.
[70]
As noted above, the separation of interests concerning Lot 24
arose from the unauthorized subdivision by the prior owners, Homestead and
Melissa’s. The Attorney General submits that the issuance of
the consolidated lease addressed the second development condition imposed by
the DAB, and, that the purchase by Fuji in 2016 of the remaining undivided
leasehold interest in Lots 21-24 remedied the issue of the unauthorized
subdivision arising from the prior co-ownership agreement as Fuji was then the
sole owner. Thus, there was no longer an unauthorized subdivision and,
therefore, no requirement for subdivision approval. It appears that the MPC
was of the same view as, when Fuji again applied for a development permit after
it acquired sole ownership on the undivided leasehold interest in Lots 21-24,
it was granted, however, the record does not indicate that an application for
subdivision was made. Conversely, Arctos takes the position that the
consolidation is in fact a subdivision and, therefore, an application was
required. The Attorney General asserts that this position is speculative. On
a preliminary review, I find little to support Arctos’ interpretation.
However, without delving into the merits, the disposition of this question is not
plain and obvious based on the record and submissions to date.
[71]
Arctos also submits, as regard to subdivision, that the “legal sequence” of decision
making required the Town to first exercise it authority and that the Minister
is to then approve the new or consolidated lease to effect the subdivision or
development approval. Again, while on a motion to strike the Court is not to
delve into the merits of the matter, I note that nothing in the legislative
regime supports this proposition. In this regard, Arctos relies on s 5.2(4) of
the Incorporation Agreement which states that the Land Use Bylaw shall provide
that when a development involves construction of a structure over the
boundaries of adjoining lots, any development permit issued shall be subject to
the condition that prior to release of a development permit, the owner shall
consolidate the leases of the lots involved. Arctos also references s 5.14
which states that a subdivision approved by the subdivision approving authority
or by the DAB shall not be implemented until the Federal Minister has
approved any new or amended lease required to effect the subdivision.
[72]
In my view, on their face, these provisions do not comprise a
requirement at law of the sequence of decision making that Arctos proposes.
Those sections are consistent with section 5.8 of the Incorporation Agreement
which states that subdivision requires approval of the subdivision approving
authority which approval cannot be implemented until the Minister
approves any new or amended lease required to effect the subdivision and s
5.3.7 of the Land Use Bylaw states the same. These provisions simply require
that any subdivision approval permits will not be released or implemented until
any necessary lease issuance or amendment is in place. This could occur prior
to the subdivision approval or after. However, the question of whether
subdivision approval was actually required in this matter remains.
[73]
And, in any event, Arctos’ submission on this point is that the alleged
legal sequence ensures that the Minister has the capacity to exercise effective
oversight of decisions of the Town which Arctos then relates to the independent
obligation of the Town and the Minister to consider Town population
restrictions.
[74]
As to Arctos’ submission that the Lease Consolidation Decision enables Fuji
to circumvent the subdivision process, as it preceded subdivision approval and
thereby denies Arctos the right of appeal afforded by the Incorporation
Agreement and the Land Use Bylaw, and denies it the procedural fairness rights
it was owed, this is predicated on Arctos’ interpretation of the “legal sequence” of decision
making and the question of whether subdivision approval was required with
respect to Lot 24, given Fuji’s purchase of the whole of the interest in Lots
21-24. The right to appeal a subdivision approval is available to an applicant
for subdivision approval, the Banff town council, a school authority, Her
Majesty the Queen in Right of Canada and any adjacent lessee or licence holder,
such as Arctos (Incorporation Agreement s 5.11(1); Land Use Bylaw s 5.1.1).
Thus, if the DAB determines that there was a subdivision and approval was
required, Arctos will not be denied its right of appeal, indeed, it has already
asserted this issue in the appeals it has filed. However, while it is
difficult to reconcile this municipal right of appeal with Arctos’ assertion
that the prior making of the Lease Consolidation Decision denies it the
municipal right of appeal, the fact remains that the municipal process does not
permit scrutiny of the making of the Lease Consolidation Decision – if it is
subject to such scrutiny.
[75]
In conclusion, in these circumstances, particularly given the questions
of whether the Minister was required to consider the population policy
objective when making the Lease Consolidation Decision and whether the
consolidation was a subdivision of Lot 24 requiring subdivision approval, I
cannot conclude that it is plain and obvious that Arctos’ application for judicial
review cannot succeed, although it will certainly have its challenges (see for
example the Federal Court of Appeal’s decision in P&S Holdings and Irving
Shipbuilding). Accordingly, in my view, it would not be appropriate to
reach a decision on standing, with final effect, as a preliminary matter.
Rather, the final disposition of the question should be heard with the merits
of the case (Finlay at para 20; Apotex at para 13; JP Morgan
at para 91).
[76]
Nor am I satisfied that the relief sought by Arctos, the quashing of the
Lease Consolidation Decision, is unavailable pursuant to the FC Act (see ss
18(1)(a) and 18.1(3)).
[77]
As to the allegation of abuse of process, I am similarly not satisfied
that this has been established at this stage by the Attorney General or Fuji. However,
as discussed above, many of the grounds on which Arctos challenges the Lease
Consolidation Decision also underlie its appeals to the DAB. It may be,
therefore, that the application for judicial review is premature. For example,
if the DAB finds that the prior subdivision of Lot 24 was cured by Fuji’s
purchase of both interests therein, and, therefore, that no subdivision
approval was required, Arctos will not have been denied any appeal rights
available to it under the municipal development process. Similarly, if the DAB
finds that the impact on the population of the Town is not a concern then, even
if the Minister was required to consider the population policy objective in
reaching the Lease Consolidation Decision, the final outcome would be unlikely
to differ.
[78]
Given the totality of the arguments and the
extent of the record, and having regard to the high test that must be met when
striking an application on a preliminary motion, I am not persuaded that this
is a clear case in which standing should be determined on a preliminary motion.
[79]
I have, however, reached the conclusion that
this is a matter which would benefit from case management and have ordered
accordingly.
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