Dicaire v. Aéroports de Montréal, 2004 FC 1640

Date: 20041122

Docket: T-1491-04

Citation: 2004 FC 1640

BETWEEN:

ALAIN DICAIRE

Applicant

and

AÉROPORTS DE MONTRÉAL

Respondent

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY

[1]        This case concerns a motion by the respondent (ADM) to strike the application for judicial review filed by the applicant.

Background

[2]        The facts giving rise to the case at bar may be summarized as follows.

[3]        On October 4, 1990 Her Majesty the Queen in right of Canada concluded an agricultural lease with the applicant according to which the latter leased agricultural land with a building thereon, namely lots 77-20, 77-23, 77-24 and 77-25 of the cadastre of Mirabel, for a period of twenty years and three months beginning September 1, 1990 and ending November 30, 2010.

[4]        Also on October 4, 1990, a second agricultural lease was concluded between the same parties. By that second lease the applicant leased other agricultural land with a building thereon, namely lots 66-85, 77-91, 77-92 and 77-93 in the cadastre of Mirabel, for the same period as the preceding lease.

[5]        Under a deed of assignment made on July 31, 1992 Her Majesty the Queen in right of Canada assigned to ADM all her rights, titles and interests in the several agricultural leases surrounding the Mirabel airport, including of course the applicant's leases referred to above.

[6]        It is worth noting here that on November 21, 1989, under the powers conferred on him by the Canada Corporations Act, R.S.C. 1970, c. C-32, as amended, the Minister of Consumer and Corporate Affairs incorporated the ADM by the issuing of letters patent.

[7]        Since September 1, 1992, however, the applicant has allegedly failed to pay the rental applicable to the aforementioned agricultural leases.

[8]        In addition to failing to pay the rental applicable to the agricultural leases since September 1, 1992, the applicant has allegedly failed to pay the municipal taxes for 1999-2000 and the school taxes for 1998, 1999 and 2000, amounts which the respondent had to pay on October 24, 2000 in the applicant's place.

[9]        On February 25, 2003 the respondent, on account of these defaults, notified the applicant that he should comply with the conditions set out in the agricultural leases concluded between the parties on October 4, 1990.

[10]      Despite this notification, the applicant allegedly refused to pay the respondent the amounts due and payable under the agricultural leases.

[11]      On account of the applicant's failure to pay the rental and the school and municipal taxes, the respondent on July 21, 2003 served an originating motion in the Court of Quebec, Civil Division, District of Montréal, asking that the applicant be ordered to pay the monies owed to the respondent, the agricultural leases cancelled forthwith and the applicant evicted from the leased premises.

[12]      On May 13, 2004 the respondent obtained a judgment allowing its originating motion of July 21, 2003, by which the agricultural leases concluded between the parties were cancelled from the date of the said judgment. The said judgment further indicated that the applicant should vacate the leased premises within 48 hours of service of the judgment.

[13]      It appeared that from the conclusion of the leases until their cancellation, the applicant had operated the leased lots for maple growing.

[14]      On June 25, 2004, as the applicant had still not vacated the leased premises, a writ of eviction and possession was issued by the Court of Quebec ordering the applicant to vacate the premises by midnight on June 29, 2004 at the latest.

[15]      On June 30, 2004, because of the applicant's failure to comply with the writ issued the preceding June 25, bailiffs proceeded to evict the applicant from the leased premises.

[16]      On August 13, 2004 the applicant - who represented himself - filed his application for judicial review. In the affidavit signed by him in response to the motion at bar, the applicant described himself as a [TRANSLATION] "former maple grower, former forest economist, environmental activist, forest educator, self-taught researcher [and] sugar producer . . .".

[17]      In his application, the applicant essentially asked this Court to order ADM to implement the Information Report LAU-X-92FI of Forestry Canada, titled "Sugarbush Management: A Guide to Maintaining Tree Health" (hereinafter, the Guide) and apply the standard practice in maple growing.

[18]      In particular, in the applicant's submission, it is the standard practice contained in this Guide and dealing with various aspects of maple tapping that were allegedly not being observed by certain other ADM tenants, who still have leases on which they are operating sugar bushes of various sizes (hereinafter, the existing tenants). In short, the applicant indirectly sought to bring the tapping of maples by existing tenants into line.

[19]      It appeared that the order sought by the applicant was essentially a mandamus, since he sought to compel the Guide to be applied by ADM against the existing tenants.

Analysis

[20]      In its motion to dismiss, ADM argued first that the applicant did not have a sufficient interest to file his application for judicial review.

[21]      For the reasons that follow, I think it is plain and obvious that this argument is correct.

[22]      The result of this conclusion is that it will not be necessary to deal formally with the other points made by ADM in its motion.

[23]      It is apparent that since May 13, 2004, the date of the judgment in which the applicant's leases were cancelled, or at least since June 30, 2004, the day the applicant was evicted from the leased premises, he is no longer "directly affected" within the meaning of subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, by the subject-matter of his application for judicial review, namely compelling observance of the Guide by ADM and the existing tenants. Subsection 18(1) reads:

[24]      Consequently, the applicant must be acknowledged as having standing to act in the public interest (standing) in order to have a sufficient interest to bring an action and avoid having his application for judicial review struck out.

[25]      In deciding on whether to grant standing, it appears that the merits of an action are an important aspect to be considered. As the Court indicated in Sierra Club of Canada v. Canada (Minister of Finance) et al. (1998), 157 F.T.R. 123, at 232:

It seems now to be settled law that the seriousness of the issues raised by a public interest applicant encompasses both the importance of the issues and the likelihood of their being resolved in favour of the applicant. Given the discretionary nature of public interest standing, and its concern to ensure that scarce public resources are not squandered and other litigants are not subjected to further delay, it seems appropriate that the merits of the claim should be taken into consideration: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675.

[26]      In the case at bar, the applicant relied on clauses 8.1 and 15.23 of the leases with ADM to support ADM's duty to act pursuant to the Guide.

[27]      First, it must be assumed here that these clauses are in fact in standard form in the leases of the existing tenants. The clauses read:

[TRANSLATION]

8.1 (1) The Lessee is required to use the Leased Premises for agricultural exploitation purposes only, and such exploitation shall be by the Lessee on a continuing basis consistent with standard practice and federal, provincial and municipal standards, in particular regarding the protection of the environment.

        (2) Inter alia, the Lessee agrees to till the stubble, fields and pastures requiring tilling. Farming methods shall be used effectively and in accordance with recognized standards so as to prevent degradation of the soil or a reduction in its productivity. In particular, tilling, improvement, fertilization and sowing shall be in accordance with the recommendations of the Ministère de l'Agriculture, des Pêcheries et de l'Alimentation du Québec (MAPAQ).

15.23       The Lessee shall comply fully with the provisions and requirements of federal, provincial and municipal statutes, regulations, rules, orders and directives applicable to the Leased Premises, in particular regarding protection of the environment.

[28]      Here it is quite clear that the applicant could not have more rights than those which ADM could have against existing tenants under the clauses of the leases mentioned above. It is more than doubtful that the Guide and the recommendations it may contain constitute [TRANSLATION] "federal standards" within the meaning of clause 8.1 or a [TRANSLATION] "rule or directive" within the meaning of clause 15.23. It is thus not at all clear that ADM could have enforced compliance with the Guide by existing tenants, even if it had wished to do so (it should be noted that the Court could find nowhere in the applicant's reply record on this motion or in the applicant's affidavit pursuant to Rule 306 a complete copy of the said Guide, although the applicant was given plenty of time to file these two pleading documents).

[29]      What is more, as mentioned earlier, the Guide is ultimately a guide and nothing more. Consequently, in the case at bar ADM had no legal duty to act. As a result, there can be no question of granting an order in the nature of mandamus on the merits.

[30]      This assessment of the merits of the applicant's application for judicial review in the motion at bar leads the Court to conclude that the application would have very little chance of success on the merits. Accordingly, the applicant should be denied standing on this motion at this stage. Consequently, the applicant's application for judicial review should be struck out for this reason.

[31]      I should like to add here in closing that there is no question of the applicant's good intentions with regard to the vexed question of maple tapping, especially in the environment around Mirabel airport. However, I think that we may refer here to the following comments of this Court in Shiell v. Atomic Energy Control Board (Can.) et al. (1995), 98 F.T.R. 75, at 79-80, in which the Court denied Ms. Shiell standing when she sought to prevent the operation of a corporation involved in uranium mining:

[10] Cameco submits that the applicant is in the same position on this application as she was in the case of Shiell v. Amok Ltd. and Saskatchewan Mining Development Corp. et al. ((1987), 58 Sask. R. 141; 27 Admin. L.R. 1 (Q.B.)) In that case, this same applicant sought an injunction preventing the respondent Amok from reprocessing leach tails produced by an uranium mining operation pursuant to a Ministerial decision authorizing such processing. After a careful review of the relative jurisprudence. Barclay J. stated (page 14):

I am satisfied that the plaintiff does not have a direct personal interest in the alleged improper granting of the ministerial approval under section 16 of the Environmental Assessment Act. If it was sufficient for the plaintiff to be interested in the sense that she is concerned about the environment and environmental issues, then it is difficult to conceive of cases where this criteria would not be met. In my respectful view, to be afforded standing the plaintiff must be affected in the sense that the issue has some direct impact on her. This is clearly distinguishable from the Finlay case in which the respondent had a direct personal interest in the issue as deductions were being made from his cheques.

[11] As in Amok, the applicant does not have a direct personal interest in these proceedings and, accordingly, the decision in Finlay v. Canada, ([1986] 2 S.C.R. 607, 71 N.R. 338; [1987] 1 W.W.R. 603; 33 D.L.R. (4th) 321) has no relevance. She lives at Nipawin Saskatchewan, several hundred miles from the respondent's Key Lake operation. Her interest is neither direct nor personal. The decision a quo will not affect her in any way different from that felt by any other member of the general public. At page 625 [W.W.R.] of the Finlay case. Le Dain J. stated:

The judicial concern about the allocation of scarce judicial resources and the need to screen out the mere busybody is addressed by the requirements affirmed in Borowski that there be a serious issue raised and that a citizen have a genuine interest in the issue.

[12] This concern expressed by the Supreme Court of Canada has been repeated in the more recent decision in Canadian Council of Churches v. Canada et al., ([1992 1 S.C.R. 236; 132 N.R. 241; 8 C.R.R. (2d) 145; 88 D.L.R. (4th) 193; 2 Admin. L.r. (2d) 229; 5 C.P.C.(3d) 20; 16 Imm L.R.(2d) 161), where Cory J. stated (page 204 [D.L.R.]):

I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the Courts and preserving judicial resources; It would be disastrous if the Courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.

[13] On the basis of the jurisprudence cited supra, I have reluctantly come to the conclusion that this applicant does not enjoy the necessary standing to make this application for judicial review. I say "reluctantly" because I have no doubt about the applicant's bonafide interest and concern relative to the issues raised by this application. However, that interest and that concern do not per se, confer the requisite "standing" entitling her to continue with this application.

[14] For these reasons, the application for judicial review is dismissed.

[Emphasis added.]

[32]      The foregoing comments in Shiell apply mutatis mutandis to the applicant, even though the latter is living in a temporary shelter, that is to say a tent, on the edge of the land he formerly leased from ADM.

[33]      For all these reasons, the applicant's application for judicial review will be struck out with costs. An order will be issued accordingly.

Montréal, Quebec

November 22, 2004

Certified true translation

K.A. Harvey

                                       FEDERAL COURT

                               SOLICITORS OF RECORD

DOCKET:                                                                    T-1491-04

STYLE OF CAUSE:                                                   ALAIN DICAIRE

Applicant

and

AÉROPORTS DE MONTRÉAL

Respondent

PLACE OF HEARING:                                             Montréal, Quebec

DATE OF HEARING:                                               November 15, 2004

REASONS FOR ORDER BY:                                  Richard Morneau, Prothonotary

DATED:                                                                      November 22, 2004

APPEARANCES:

Alain Dicaire                                                                  FOR THE APPLICANT

Vincent Thibeault                                                           FOR THE RESPONDENT

Nicolas Courcy

SOLICITORS OF RECORD:

Lavery, de Billy                                                             FOR THE RESPONDENT

Montréal, Quebec