Brewster Mountain Pack Trains Ltd. v. Canada ( Minister of Environment )
T-2231-90
MacKay J.
9/7/93
29 pp.
Application for orders quashing Minister's decision affirming Park Superintendent's decision not to reinstate resident outfitter's licence (ROL), quashing Banff National Park Management Plan, mandamus requiring Minister to direct Park Superintendent to consider application for renewal of ROL -- Applicant carrying on business in Banff National Park for more than 30 years under ROL issued annually until 1989 -- Under ROL applicant dealing directly with Park Administration for access to and operation of campsites -- Decisions concerning issue of ROL made in context of management plan for Park -- Plan, approved in 1988, providing for continued licensing of only two named resident commercial horse outfitters -- Although no definition of "resident outiftter" in plan, plan applied so as to mean one entitled by agreement with Parks Canada to access to and occupation of semi-permanent camps -- Applied interpretation changed understanding prevailing until 1988 -- Applicant selling part of its business in 1975 to Warner & MacKenzie, but agreement not relating to licence as resident outfitter -- After 1985 applicant not dealing with Parks Canada about accessibility to campsites, but dealing with non-profit excursion group -- Continuing operations as outfitter in Park under another form of business licence since 1989, but concerned failure to recognize status as resident outfitter in Park may adversely affect future operations -- As to Plan, alleging unfairness in limitation to two named enterprises only at final stage of Banff plan although applicant holding ROL for many years -- As to Minister's decision, alleging unfairness based on irrelevant considerations, lack of procedural fairness in refusal of application for ROL in that applicant not given fair hearing or opportunity to be heard -- Application allowed -- As specific limitation not beyond authority of Minister, plan not quashed -- Minister's decision, in considering applicant's appeal from decision of Park officials to refuse licence, based on improper factors -- Minister accepted 1975 sale of part of business transferred applicant's privilege to hold ROL to purchaser, contrary to evidence herein -- Also accepted after sale applicant no longer resident outfitter in Park and undertaking no resident outfitting in Park, although applicant continuing to operate under ROL issued annually until 1989 -- Applicant not having notice of implicit change in definition or qualification for resident outfitter's licence -- Failure to consider significance of such change for applicant and failure to consider operated for many years under ROL while applying strictly provision of plan limiting privilege of holding ROL to two others named in plan constituting fettering of discretionary authority vested by Regulations in Park Superintendent -- As plan merely providing guidance for administration of park, must be followed in manner consistent with Minister's obligations under Act to serve objectives set out therein and under administrative law principles to do so in accordance with principle of fairness -- If provisions of plan conflict with obligations under Act or under law to act fairly, must give way -- By expressly providing for only two resident outfitters' licences to be issued to two named firms which had agreements separate from licences to use of group camps, administrators assuming qualification for ROL not previously term for such licence, without notice of changes either in evolving process for management plan or in relation to renewal of licence to applicant -- Assumption not consistent with principle of fairness -- Decision not to issue licence in reliance upon plan quashed -- Insufficient delay in instituting proceedings to warrant Court declining to exercise discretion -- When decision quashed because exercise of public duty not meeting duty of fairness, decision nullity and outstanding duty to exercise discretion fairly remains -- No special reasons warranting award of costs -- National Parks Act, R.S.C., 1985, c. N-14, ss. 4, 5 (as am. by S.C. 1988, c. 48, s. 4) -- National Parks Businesses Regulations, C.R.C., c. 1115, ss. 3, 4, 8, 9 -- Federal Court Act, R.S.C., 1986, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5) -- Federal Court Rules, C.R.C., c. 663, R. 1608.