Date: 20030203
Docket: A-73-02
Neutral citation: 2003 FCA 60
CORAM: ROTHSTEIN, J.A.
EVANS, J.A.
MALONE, J.A.
BETWEEN:
THE SCHWARZ HOSPITALITY GROUP LIMITED
Appellant
- and -
THE MINISTER OF CANADIAN HERITAGE and
SUPERINTENDENT BANFF NATIONAL PARK
Respondents
Heard at Edmonton, Alberta, February 3, 2003.
Judgment delivered from the Bench at Edmonton, Alberta, February 3, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS, J.A.
CONCURRED IN BY: ROTHSTEIN, J.A.
MALONE, J.A.
[1] This is an appeal by The Schwarz Hospitality Group Limited from a decision to dismiss a motion to require the Superintendent of Banff National Park to appear before the Honourable Justice Gibson to be prepared to hear proof of an act of contempt, namely, the Superintendent's failure to comply with an order issued by the Honourable Justice Gibson, dated February 23, 2001. The Motions Judge held that Schwarz had not established a prima facie case of contempt.
[2] Despite the able argument of counsel for the appellant and the difficulties that he identified in the preamble to the order of the Motions Judge under appeal, we are of the opinion that the appeal must be dismissed, and for two reasons.
[3] First, the letter of August 24, 2001, written by the Superintendent to Schwarz confirming his letter of July 11, 2001, makes it clear that the Superintendent had decided to refuse to issue a development permit to the appellant. When the text of these letters is read as a whole, the inclusion in them of the words "without prejudice" does not prevent the letters from constituting a decision by the Superintendent to refuse the permit.
[4] Second, even if, as Schwarz alleges, the Superintendent's decision did not comply with the order of Gibson, J., the non-compliance alleged turned on a question of law or of mixed law and fact, namely whether the refusal was in accordance with the development approval process and development guidelines in force in 1997 as required by the order.
[5] On the basis of the material before us we cannot conclude that the Superintendent knew that he had no power to refuse a permit, not least, because the order of Gibson, J. expressly contemplated this possibility. Without evidence of bad faith of this kind, there is no just cause for a hearing to determine whether the Superintendent is guilty of contempt.
[6] In our view, the issues raised by Schwarz regarding the lawfulness of the Superintendent's refusal are more appropriately pursued in the application for judicial review of that refusal which has already been filed.
[7] For these reasons the appeal will be dismissed with costs fixed in the lump sum of $2,500.00 inclusive of disbursements.
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-73-02
STYLE OF CAUSE: The Schwarz Hospitality Group Limited v.
The Minister of Canadian Heritage and
Superintendent Banff National Park
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: February 03, 2003
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: ROTHSTEIN J.A., MALONE J.A.
DATED: February 03, 2003
APPEARANCES:
Mr. Judson Virtue FOR THE APPELLANT
Mr. Kirk Lambrecht, Q.C. FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Macleod Dixon FOR THE APPELLANT
Calgary, Alberta
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
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