Peter G. White Management Ltd. v. Canada ( Minister of Canadian Heritage )
T-1776-96
Campbell J.
28/5/97
18 pp.
Application for judicial review of decision by Superintendent of Banff National Park denying licence to resume summer operations of Mount Norquay Chairlift-Whether Superintendent exceeded jurisdiction in making decision-In August 1995, Banff Mount Norquay took assignment of Crown lease of land upon which Chairlift operations carried out since 1948-Long range environmental plan announced in 1989 coined "Long Range Plan, Mount Norquay Ski Area, Banff National Park" (LRP)-LRP not having force of law, only guide to future development-Statement of government policy against which applications such as that of Banff Mount Norquay would be judged-Banff Lifts Ltd. consenting to discontinue summer operations of Chairlift in 1990-Banff Mount Norquay purchasing Mount Norquay Ski Area assets, taking assignment of lease with full knowledge of conflict between terms of lease, provisions of LRP-Application for business licence filed by Banff Mount Norquay on June 18, 1996-By letter of July 2, 1996, Banff Mount Norquay received Superintendent's decision not to issue business licence-Minister rejecting negotiated settlement proposed by Banff Mount Norquay-Under R. 1602(4), only single decision capable of being reviewed herein-Minister's decision separate decision from that delivered on July 2, 1996-Only decision properly under review that of July 2, 1996-Only evidence to be properly considered that which arose prior to it-What has been conveyed to Banff Mount Norquay very restricted contingent right to operate business on lands leased-Right to use land for very limited purposes as provided in covenant contingent upon licence being issued under National Parks Businesses Regulations, s. 5-Regulations, ss. 4, 5 giving very broad discretion to Superintendent to limit business conducted within National Park under authority-Superintendent's approach to interpreting licensing provisions in Regulations to carry out discretion he has useful, reasonable, allowed-Superintendent's discretion extends to include making of July 2, 1996 decision-Banff Mount Norquay purchased business in 1995 although aware of very strong environmental concerns, stringent regulation-Business had not been operating Chairlift in summer for six years-Banff Mount Norquay purchased business on legal advice rights under lease could be enforced to obtain licence-Superintendent did thorough investigation of facts involved in proposed application, gave ample opportunity to Banff Mount Norquay to make representations as to why summer use should be licensed-Sincerely conducted extensive analysis of evidence, issues, in no way fettered discretion-Discretion to issue licence properly exercised-Content, extent of duty of procedural fairness varies with interests affected, type of decision made-Minimal procedural fairness owed in situations where individual applying for licence, for which no "expectation" to receive licence, unless failure to receive one casts slur on applicant's professional reputation-No support in Canadian, English cases for position doctrine of legitimate expectations can create substantive rights-Given history relating to summer use of Chairlift, terms of lease itself, Banff Mount Norquay's "expectation" highly speculative-Procedural fairness requirements under Regulations low-Duty of fairness owed by Superintendent to Banff Mount Norquay discharged-Application dismissed-Federal Court Rules, C.R.C., c. 663, R. 1602(4) (as enacted by SOR/92-43, s. 19)-National Parks Businesses Regulations, C.R.C., c. 1115, ss. 4 (as am. by SOR/94-666, Sch., s. 2), 5 (as am. idem).