Sunshine Village Corp. v. Canada (Minister of Canadian Heritage), docket T-1769-97

Date: 19981204

Docket: T-1769-97

BETWEEN:

     SUNSHINE VILLAGE CORPORATION

     Applicant

     - and -

    

     THE MINISTER OF CANADIAN HERITAGE and

     THE MINISTER OF ENVIRONMENT

     Respondents

                    

     REASONS FOR ORDER

TEITELBAUM, J.:

[1]      This is an application for judicial review of an alleged decision of the Minister of Canadian Heritage, the Honourable Sheila Copps (the Minister), as expressed in a letter dated July 25, 1997 to retain the federal environmental assessment panel appointed on March 24, 1995 to review the Sunshine Village 1992 Long Range Development Plan Proposal.

[2]      In its Motion, the applicant, Sunshine Village Corporation, seeks:

1. An order in the Nature of certiorari to quash the decision of the respondent Minister of Canadian Heritage to retain a federal Environmental Assessment panel pursuant to either the Environmental Assessment Review Process Guidelines Order or the Canadian Environmental Assessment Act (CEAA). The decision to retain a federal panel is contained in a letter of the Minister of Heritage dated July 25, 1997 and communicated to and received by the President of the Applicant Corporation Ralph D. Scurfield, on July 28, 1997.

2. A declaration that the Environmental Assessment Panel established by the Minister of Environment and this Respondent, the Minister of Heritage, be declared functus officio according to law.

3. An order of mandamus requiring the Respondent Minister of Environment to discontinue the panel.

[3]      The applicant lists, in its Motion Record, the following grounds:

1. The project or proposal for which the panel was established has been withdrawn by the proponent on March 20, 1997.

2. Environmental Assessment panels are not ongoing regulatory tribunals.

3. The Minister of Environment is the administrator of the CEAA. Once the "proponent" (the Applicant) withdrew the project, the Minister of Environment should have acted to abolish the panel, because it is the Minister of Environment, not the Minister of Heritage, who is responsible for the CEAA.

4. That the decision to invest perpetual authority in a costly public panel has severe financial ramifications for the applicant.

[4]      The Notice of Motion was supported by the affidavit of Ralph D. Scurfield, President and Chief Executive Officer and majority shareholder of the applicant sworn to on August 18, 1997 and found at Tab 3 of the applicant"s Motion Record.

THE FACTS

[5]      The applicant, Sunshine Village Corporation (Sunshine), owns and operates commercial ski facilities in Banff National Park. While operations have been ongoing since 1934, Sunshine was only acquired by the applicant in 1981. In the 1970's, public discussions regarding the development of Sunshine led to a proposal and government approval in principle, on April 6, 1978. Subsequent to the execution of a Development Agreement on May 15, 1978 with the Federal Government, construction of a number of facilities followed. Other facilities which formed part of the 1978 Plan but were not built were later incorporated into a 1992 Long Range Development Plan Proposal (see Tab A, 6 of Respondents" Record). In 1986, Sunshine submitted a new proposal which was subsequently withdrawn. From 1989 to 1992, Sunshine consulted with Parks Canada regarding a new development plan, which led to the 1992 Long Range Development Plan Proposal. By letter dated August 31, 1992, Jean Charest, then Minister for Parks Canada, approved in principle, subject to further assessments, the 1992 Long Range Development Plan Proposal; and construction of the Goat"s Eye Development began in October 1993. Protracted litigation (see Tab A, 1 to 5 of Respondents" Record) ensued thereafter when Canadian Parks and Wilderness Society ("CPAWS") attempted to stop the development of the ski facilities. Between the filing of CPAWS" application and the hearings, Michel Dupuy, Minister of Canadian Heritage responsible for Parks Canada, requested that an environmental assessment panel be convened to conduct a public review of additions to the existing facilities at Sunshine Village. Because of the pending litigation regarding the development of Sunshine Village, the appointment of the panel was delayed.

[6]      On March 24 1995, Sheila Copps, then Deputy Prime Minister and Minister of the Environment, appointed an environmental assessment panel to conduct an independent public review of the proposed expansion of existing facilities, including an expanded parking lot, hotel redevelopment and new chair lift facilities, but excluding the Goat Eye Mountain, pursuant to the newly enacted Canadian Environmental Assessment Act (Applicant"s Record, page 9).

[7]      The panel was formed "to review Sunshine Village Corporation"s 1992 Long Range Development Plan Proposal (see Tab A, 6 of Respondents" Record) and for no other reason.

[8]      The development project and the appointment of the environmental assessment panel led to protracted litigation and resulted in substantial jurisprudence. Namely, in 1995, Sunshine sought the Federal Court"s intervention to review the validity of the appointment and jurisdiction of the environmental assessment panel, including its terms of reference. Justice Heald dismissed Sunshine"s application and held that the panel had been properly constituted and had jurisdiction to review the 1992 Long Range Development Plan Proposal, which included the unbuilt portions of the applicant"s 1978 Plan :(Sunshine Village Corp. v. Canada (Minister of Canadian Heritage) et al. (1995), 100 F.T.R. 284). This decision was upheld on appeal: (Sunshine Village Corp. v. Canada, [1996] 44 Admin. L.R. (2d) 201 (F.C.A.)). Leave to appeal to the Supreme Court of Canada was denied. The Federal Court of Appeal decision contains a thorough summary of the factual background which led to the present application for judicial review.

[9]      Further to the final outcome of the legal proceedings, the applicant, on March 20, 1997, wrote to the Honourable Sheila Copps to withdraw the 1992 Long Range Development Plan Proposal.

[10]      It appears to me, from a plain reading of this letter, that the withdrawal of the 1992 Long Range Development Proposal is without qualification.

Hon. Sheila Copps

         Deputy Prime Minister &

         Minister of Canadian Heritage

         House of Commons

         Ottawa K1A 0H3

         Dear Madam Minister

Re: 1992 Sunshine Village Long Range Development Proposal

Once again I would like to thank you personally for taking time to visit Sunshine Village this past January to learn first-hand about the issues affecting our business.

I wish to inform you of a decision we have made regarding the 1992 Long Range Development Proposal which was approved by the Minister of Environment on August 31, 1992; which unfortunately became the subject of litigation. As a result of the recent decision by the Supreme Court of Canada to deny leave to appeal, we hereby withdraw the 1992 Long Range Development Proposal.

Please be advised that we will continue to work with your officials to honour the commitment contained in our lease with the Federal Crown, especially the commitment to "operate a first class ski resort upon the land".

I am available to meet with you in person at your earliest convenience should you so desire.

         Yours truly

         "Ralph D. Scurfield"

         Ralph D. Scurfield

         President

[11]      This alleged unqualified withdrawal is contested by the respondents who appear to take the position that the said letter of March 20 1997 is not, per se, an unqualified withdrawal, but a modified project proposal. In the respondents" view, this fact is evidenced by a letter dated August 5, 1997 in which Mr. Scurfield, on behalf of the applicant, writing to Sheila Copps, reiterated his decision to withdraw the 1992 Long Range Development Proposal and indicated the applicant"s intention "to revert to the pre-EARP 1978 Plan" (Applicant"s Application Record, pages 59 and 60).

[12]      Further to the applicant"s letter dated March 20, 1997 withdrawing the applicant"s 1992 Long Range Development Plan Proposal, the Minister of Canadian Heritage, Sheila Copps, responded by letter dated July 25, 1997.

[13]      In her reply, the Minister states that the future of the environmental assessment panel would have to be considered in light of the necessary clarifications regarding the opportunity to bring forward various unbuilt components of the 1978 plan.

         Mr. Ralph D. Scurfield

         President

         Sunshine Village Corporation

         Post Office Box 1510

         Banff, Alberta

         T0L 0C0

         Dear Mr. Scurfield:

Thank you for your letter of March 20, 1997, regarding your decision to withdraw the 1992 long-range plan proposal for the Sunshine Ski area in Banff National Park.

After careful consideration of the matter, I wish to identify how various unbuilt components of the 1978 plan should be brought forward and reviewed pending a new long-range plan. This clarification is in the best interest of all parties and should reduce the uncertainty associated with project review that has caused some apprehension both to the Department of Canadian Heritage and your company in the past. Moreover, this clarification is necessary prior to a decision respecting the future of the Sunshine Ski Development Environmental Assessment Panel.

Accordingly, departmental representatives will arrange a meeting with you and representatives of the Canadian Environmental Assessment Agency to review how this matter can best be addressed. Mr. Charlie Zinkan, Acting Director, Mountain Parks, will contact you in this regard.

I trust that this information is useful. Please accept my best wishes.

                     Yours sincerely,

                     "Sheila Copps"

                     Sheila Copps

(Emphasis added)

[14]      By letter dated August 5, 1997, in response to the letter of July 25, 1997 from the Minister, the applicant wrote to the Minister advocating the dissolution of the environmental panel and requested a response in this respect.

Honourable Sheila Copps

         Minister of Canadian Heritage

         12 th Floor, 15, Rue Eddy

         Jules Leger Bldg.

         Hull, Quebec

         K1A OM5

         Dear Minister,

Thank you for your letter of July 25 th, in reply to my letter dated March 20, 1997. Firstly, I wish to congratulate you on your successful re-election campaign and re-appointment as Minister of Canadian Heritage.

Regarding your letter, it states:

"A clarification of Sunshine"s plans is necessary prior to a decision respecting the future of the Sunshine Ski Development Environmental Assessment Panel."

Should we presume then that you, or the Minister of Environment through you, have decided that the Sunshine Panel still exists?

I am advised by counsel than an essential element of a panel review under EARP was the existence of a "proposal". Similarly, CEAA panels can only study a distinct "project". The Sunshine Panel, which you as Minister of the Environment appointed at the request of Minister Dupuy, lost its ability to review our project as a result of my (the proponent"s) letter dated March 20, 1997. As you know, CEAA panels are not ongoing regulatory tribunals, planning boards, or agencies of public government with general jurisdiction. They exist to study the effects of a certain "project", in this case, the one approved by the former Minister in 1992.

Additionally, any duplication of business planning in the guise of a regulatory mechanism dishonors the anti-duplication sections of the EARP Guidelines Order and similar provisions of the CEAA. The intent of section 4(b.1) of the CEAA was "one project, one assessment", not "one assessment to determine whether or not the proponent might submit a project". This panel in question was definitely created for a "project" that has now been withdrawn by Sunshine Village, the "proponent", as acknowledged in your most recent letter.

Therefore, given my withdrawal of the proposal on March 20 th, there can be no CEAA panel in existence. Furthermore I am advised that there is no federal statutory scheme or authority allowing a panel to retain jurisdiction over a withdrawn project. Yet, your July 25 th letter appears to give the panel perpetual authority.

As a small but high profile tourism business operating in Canada"s oldest and most famous national park, we have always sought to comply with the spirit and intent of our lease. We entered, in good faith, into a planning process 11 years ago, in 1986, to update and amend the previously approved Long Range Plan for Sunshine Village. Eventually, this process resulted in the 1992 Plan which was approved by the Minister. Subsequent events led us to withdraw that Plan. A small business cannot afford the uncertainty and enormous costs associated with a process normally reserved for mega-projects such as the Fixed Link Bridge to P.E.I., or the B.H.P./Diamet diamond mine in the Northwest Territories.

Repeatedly, Banff Park managers have assured me that it is not the Government of Canada"s intention to force Sunshine Village out of business. However, local park officials inform us that we cannot even replace the temporary Goat"s Eye day lodge trailers with a permanent building until the uncertainty surrounding the panel is resolved. In the meantime, customer service and our international competitiveness suffers. It is for reasons such as these, that we made the difficult choice of withdrawing the negotiated 1992 Plan, choosing instead to revert to the pre-EARP 1978 Plan.

Could you be kind enough, therefore, to confirm or deny that the panel is still in existence? Given the time frames in the Federal Court system, we need to have a clear answer from you in writing before August 15, 1997. I am sure that you would understand that without such clarification we must assume that your letter of July 25, 1997 constitutes a decision-making responsibility by you as Minister to retain this panel and thus, out of an abundance of caution we will have no choice but to instruct our solicitors to seek appropriate review in the Federal Court on or before August 25 th.

In my March 20 th letter, I advised that I am able to travel to Ottawa (or Hamilton) to meet with you on a short notice if you feel that would be useful in resolving this issue. I am still prepared to do so.

Yours sincerely,

                 "Ralph D. Scurfield"

                 Ralph D. Scurfield

                 President

[15]      What is important to note from this letter is that the applicant believes that the Minister, in her letter of July 25, 1997, is asking for a clarification of the applicant"s plans before a decision on the panel"s future can be made. The applicant also asks the Minister, in the 2^nd to last paragraph of the letter for a decision on the panel"s existence. The applicant asks "Could you be kind enough, therefore, to confirm or deny that the panel is still in existence?"

[16]      Consequently, the applicant initiated these proceedings seeking, as I have said, an order of certiorari quashing the Minister"s decision to maintain the panel in existence.

SUBMISSIONS

[17]      Briefly put, the applicant argues that the Minister"s letter dated July 25, 1997 is tantamount to a refusal to discontinue the environment assessment panel. In its view, the panel lost jurisdiction when the 1992 development plan was formally withdrawn by letter dated March 20, 1997.

[18]      The respondents make submissions relating to, firstly, the Minister"s letter dated July 25, 1997, and secondly, the existence and jurisdiction of the panel:         

a) The Minister"s decision under judicial review is not final. The letter merely states that the Minister thought that the existence of the panel should be considered after discussions between the applicant and the employees of the Crown.

b) In response to Sunshine"s contention that the environmental assessment panel is functus officio and lost jurisdiction with the withdrawal of the 1992 Plan, it is submitted that the panel was appointed to conduct assessments of all expansion proposals at Sunshine Ski Village; and that the letter of withdrawal is in effect a modification of Sunshine"s development plan which does not deprive the panel of its jurisdiction. The respondents further submit that the appointment of the panel and the legal validity of Appendix A of the panel"s terms of reference are res judicata .

ISSUES

[19]      The first issue is to determine whether the letter from the Minister dated July 25, 1997 is a final decision subject to judicial review.

[20]      If the said decision is a final decision subject to judicial review, the second issue is to determine whether the applicant"s withdrawal of its 1992 Long Range Development Plan Proposal was a complete and unqualified withdrawal or whether, as the respondents state, it was only a partial withdrawal as the applicant intends to revert to its 1978 Plan.

[21]      The third issue is whether the assessment panel became functus officio and lost jurisdiction by virtue of the withdrawal of the 1992 Long Range Development Plan Proposal.

[22]      The respondent raises the issue, in its written submissions, of whether questions relating to the jurisdiction of the panel, including its terms of reference, are res judicata.

DISCUSSION

[23]      The applicant"s argument, briefly stated, is that the withdrawal of the 1992 Plan ousted the environmental assessment panel"s jurisdiction as there did not exist, any longer, a project or proposal, to be reviewed by the panel. It, the panel, thus became functus officio and should, consequently, be discontinued and the Minister should be compelled to discontinue the panel.

[24]      The applicant submits that by letter dated March 20, 1997 (supra) it unequivocally withdrew the 1992 Long Range Development Plan Proposal. The applicant submits that the environmental assessment panel, which was appointed specifically to review the 1992 Long Range Development Plan Proposal no longer has a project to review and has consequently lost its jurisdiction, and became functus officio.

[25]      The respondents take the position that Sunshine"s letter of March 20, 1997, which advised of the withdrawal of the 1992 Plan, is in effect a modification of Sunshine"s development plan. In their view, this is evidenced by Sunshine"s letter dated August 5, 1997, which shows that Sunshine intends to revert to the 1978 Plan. This pertinent passage reads as follows:

Repeatedly, Banff Park managers have assured me that it is not the Government of Canada"s intention to force Sunshine Village out of business. However, local park officials inform us that we cannot even replace the temporary Goat"s Eye day lodge trailers with a permanent building until the uncertainty surrounding the panel is resolved. In the meantime, customer service and our international competitiveness suffers. It is for reasons such as these, that we made the difficult choice of withdrawing the negotiated 1992 Plan, choosing instead to revert to the pre-EARP 1978 Plan.

[26]      After listening to the submission of the applicant and the assurance given by counsel for the applicant, as an officer of the Court, I am satisfied that when the applicant, on March 20,1990, wrote to the Minister (page 57 of Applicant"s Record) to withdraw its 1992 Long Range Development Plan Proposal, it was withdrawing all that was incorporated into the proposal, including all that part of the "unbuilt components of the 1978 Plan for the Sunshine Village Ski Area" as found in Appendix A and that found in Appendix B (pages 16 and 17, Applicant"s Record) which comprised what was referred to the Panel for an environmental review (The 1992 Long Range Development Plan Proposal).

[27]      Appendix A and Appendix B were the complete terms of reference for the Panel appointed by the then Minister of the Environment Sheila Copps and this on or about March 24, 1995 (page 9, Applicant"s Record).

[28]      I think it important to repeat that I am satisfied that the applicant"s intention to withdraw the 1992 Long Range Development Plan Proposal for Sunshine Village incorporated the unbuilt components of the 1978 plan for which an environmental impact assessment was required before implementation and was part of the terms of reference (Appendix A) of the Panel.

[29]      The above is a clear indication that Sunshine intended and did withdraw the entire 1992 Long Range Development Plan Proposal which meant it withdrew all that remained to be completed from its pre-EARP 1978 Plan.

[30]      What I am trying to say is that, after the assurance given to the Court by counsel for the applicant and after a plain reading of the applicant"s May 20, 1997 letter, the entire 1992 Long Range Development Plan Proposal for Sunshine Village was and is withdrawn. There remains no project or proposal to be assessed as nothing remains to be done from the 1978 Plan nor from the additional (Appendix B) work contained in the 1992 Plan.

[31]      Whether Sunshine intends to submit, at a later date, a different or modified proposal (as a new proposal) which would revert to or incorporate all or a part of the unbuilt components of the 1978 Plan is a separate and distinct question. Over the years, Sunshine and the Crown have considered and assessed a number of development plans which were submitted, amended, approved, reassessed or even withdrawn. The complexity and repercussions which flow from long term development projects make it necessary to reconsider over time the viability and appropriateness of such developments. In the present case, it is also clear that the decision of the Federal Court of Appeal which held that Sunshine"s 1992 Plan was subject to the review of the assessment panel was the determining factor in Sunshine"s decision to withdraw the 1992 Plan and, again I say, the Court of Appeal, in dealing with Sunshine"s 1992 Plan also dealt with the uncompleted portion of Sunshine"s 1978 Plan.

[32]      Both parties agree that in the event that there did not remain any proposal or project to be considered by the assessment panel, then the assessment panel appointed to consider the 1992 Long Range Development Plan Proposal which comprises the uncompleted or unbuilt parts of the 1978 Proposal is functus officio and should be disbanded.

Letter of July 25, 1997

[33]      Notwithstanding my conclusion that in the applicant withdrawing its 1992 Long Range Development Plan Proposal, it also totally withdrew the unfinished part of its 1978 plan and that there remained nothing for the assessment panel to overview as there remains no official expansion proposals regarding the development at Sunshine Village, I am not persuaded that the Minister"s letter dated July 25, 1997 is a final decision which is susceptible to judicial review pursuant to section 18.1 of the Federal Court Act .

[34]      I believe it is trite law to state that pursuant to section 18.1 of the Federal Court Act, the decision to be reviewed must be a final decision or, at least, must be one which disposes of a substantial issue before the tribunal.

[35]      In the present case, the issue put before the Minister (tribunal) was whether the assessment panel should be disbanded as it was functus officio, the1992 Long Range Development Plan Proposal being withdrawn.

[36]      The Minister replied to the request by her letter of July 25, 1997 in which she asks for more clarification as it appears the Minister was concerned that the applicant had not totally withdrawn from parts of its 1978 Plan.

[37]      The Minister did not receive any clarification of precisely what was being withdrawn with the applicant"s March 20, 1997 letter. The Minister did receive the applicant"s August 5, 1997 letter wherein there is mention of reverting to the pre EARP 1978 Plan.

[38]      In the August 5, 1997 letter, the applicant itself states that it would wait for 30 days to receive a reply to the applicant"s request to disband the assessment panel and if no reply was given, it would assume a negative decision.

[39]      Clearly this, in itself, shows that the Minister did not make a final decision subject to judicial review as no decision was made on July 20, 1997.

CONCLUSION

[40]      In that I am satisfied no decision has been made by the Minister of the Environment in her letter of July 20, 1997, there cannot be a judicial review pursuant to section18.1 of the Federal Court Act and the judicial review application is dismissed.

[41]      In the event that I am wrong in the above conclusion, and it is determined by the Federal Court of Appeal that the Minister"s July 20, 1997 letter is a decision subject to judicial review, I would allow the application for judicial review and would grant certiorari quashing the decision of the Minister to retain the environmental assessment panel and would declare that the environmental assessment panel functus officio and would direct the Minister to discharge the environmental assessment panel.

COSTS

[42]      In that I am satisfied that there does not exist a decision to be reviewed and this application must be denied, costs are awarded to the respondents.

                         "Max M. Teitelbaum"

                                                      J.F.C.C.

OTTAWA, Ontario

December 4, 1998