Docket: A-72-17
Citation:
2017 FCA 206
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CORAM:
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WEBB J.A.
BOIVIN J.A.
RENNIE J.A.
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BETWEEN:
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FRASER LEISHMAN
and GRAY GREENWAY
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Appellants
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA, as represented by THE MINISTER OF ENVIRONMENT AND
CLIMATE CHANGE and PARKS CANADA AGENCY
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Respondents
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REASONS
FOR JUDGMENT
BOIVIN J.A.
[1]
We are seized of an appeal from a judgment of
Locke J. of the Federal Court (the Judge) rendered on February 21, 2017
(2017 FC 206), whereby he disposed of two motions dealt with in writing.
I.
Background
[2]
Mr. Fraser Leishman and Mr. Gray
Greenway (the appellants) both have cottages in the Waterton Townsite area.
They disagree with a decision made by the Superintendent of Waterton Lakes
National Park (the Relocation Decision), whereby he selected a new location for
the Visitor Reception Center (the VRC). The chosen location for the VRC is in
the Waterton town area, just by the entrance to the Waterton Townsite
campground. The appellants became aware of the decision shortly after it was
communicated to the public on Parks Canada’s website on March 7, 2016 (appellants’
application for judicial review, Appeal Book, Vol. 1, Tab 3 at p. 21).
[3]
The appellants filed an application for judicial
review eight (8) months later, on November 21, 2016. Since they were well
outside the 30-day time limit imposed by the Federal Courts Act, R.S.C.,
1985, c. F-7, the appellants brought a motion for an extension of time (Appeal
Book, Vol. 1, Tab 5 at p. 45).
[4]
As I understand the appellants’ underlying
judicial review application, they were in effect seeking review of more than
one decision: (i) the Relocation Decision dated March 7, 2016; and
(ii) eventual decisions contemplated in the Waterton Community Plan (Appeal
Book, Vol. 1, Tab 5(f) at p. 122), whereby the Superintendent would issue
a development permit and a building permit to give effect to the Relocation
Decision. These “eventual” decisions, of course,
have not yet been rendered. The importance of distinguishing between the
Relocation Decision and possible decisions by the Superintendent in the future
will be discussed below.
II.
Motions before the Judge
[5]
Two motions were before the Judge. One motion
was filed by the appellants seeking an extension of time to commence an
application for judicial review of the Relocation Decision outside the 30-day
time limit. Their motion also requested an extension of time for future steps
in their application, an order for the production of documents, and costs.
Since the appellants had sought other relief, namely orders of prohibition,
declaration and injunction, in their underlying judicial review application, Her
Majesty the Queen in Right of Canada, as represented by the Minister of
Environment and Climate Change and Parks Canada Agency (the respondents) brought
a motion to have these items struck. Since the motions were interrelated, the
Judge decided to address them in the same decision.
[6]
The Judge dismissed the appellants’ motion for
an extension of time to commence an application for judicial review. Given the
dismissal of the motion for a time extension, the Judge did not consider the
other requests in the appellants’ motion. The Judge granted the respondents’
motion to strike other portions of the appellants’ judicial review application.
III.
Analysis
[7]
In this appeal, the appellants submit that they
raised the issue of nullity of the Relocation Decision before the Judge but
that he failed to address it. They also appeal the Judge’s disposal of the two
motions. They contend that the Judge erred in applying the Larkman test
for an extension of time as defined in Canada (Attorney General) v. Larkman,
2012 FCA 204, [2012] F.C.J. No. 880 (QL) [Larkman] and that he made an
error in granting the respondents’ motion striking other portions of their
judicial review application.
[8]
In disposing of the two motions, the Judge
rendered discretionary decisions. The review of a judge’s discretionary
decision attracts the standard of review set out in Housen v. Nikolaisen, 2002
SCC 33, [2002] 2 S.C.R. 235, as recently decided by our Court in Hospira
Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017]
1 F.C.R. 331.
[9]
On the issue of nullity, the appellants contend
that the Relocation Decision is not subject to the 30-day time limit because,
as being taken without appropriate procedural fairness, it was nul and void. The
respondents have claimed that the appellants raised this only in passing before
the Judge. During oral arguments before our Court, counsel for the appellants
confirmed that only one paragraph of their written representations before the
Judge made reference to this argument. It seems that the nullity argument was accordingly
not emphasized before the Judge as it is before our Court.
[10]
Nevertheless, even if it was clear that the appellants
had made a nullity argument before the Judge, I am not convinced that they
would have succeeded. Insofar as they wished to challenge the Relocation
Decision dated March 7, 2016 on the basis that it was a nullity, they were
still required to convince the Judge to extend the 30-day time limit imposed by
the Federal Courts Act. The nullity argument would have been considered
as part of the Judge’s summary analysis of the merits under the Larkman
test. In any event, the Judge sided with the appellants as to the merit factor
in the Larkman test. As for the appellants’ challenge of eventual
decisions by the Superintendent to issue a development permit or a building
permit pursuant to the Community Plan, the nullity argument was simply
premature.
[11]
I am also of the view that the Judge followed
the test outlined by this Court in Larkman for considering a motion for
an extension of time and made no palpable and overriding error in applying it.
He properly confined his analysis to the four Larkman factors. He was
also careful not to conduct an in-depth analysis of the merits of the appellants’
application. In fact, the error would have been to do so in the context of a
motion. I note in passing that, as part of their oral submissions before this
Court, the appellants often addressed the merits of their underlying judicial
review application, yet this appeal is concerned only with the Judge’s disposal
of the two motions.
[12]
Finally, having denied the appellants’ motion
for additional time, the Judge addressed the respondents’ motion with respect
to striking the appellants’ applications for prohibition, declaration and
injunction in their judicial review application. He found that the arguments
raised by the appellants to challenge subsequent decisions that could be made
by the Superintendent in the future (the eventual decisions referred to above
at paragraph 4) focused on the alleged shortcomings in the Relocation
Decision and, therefore, were “fatally undermined”
once that decision was no longer in issue (Judges’ reasons at para. 32). On
this basis, the Judge granted the respondents’ motion. While I agree with the
Judge’s disposition of the respondents’ motion, I am of the view that the
correct ground for granting it is that the appellants were seeking the relief
of prohibition, declaration and injunction prematurely.
[13]
On this last point, the appellants have
expressed concern before our Court that the Judge’s conclusion at
paragraph 32 could be understood as foreclosing any future applications. I
do not read that paragraph as imposing such a drastic outcome. To the contrary,
I am of the view that paragraph 32 does not preclude requests for relief
in the event that another administrative decision is rendered by the
Superintendent.
IV.
Conclusion
[14]
For these reasons, I would dismiss the appeal
with costs.
“Richard Boivin”
“I agree
Wyman
W. Webb J.A.”
“I agree
Donald
J. Rennie J.A.”
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