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Docket: |
CA028931 |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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ORAL REASONS FOR JUDGMENT |
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Before: |
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The Honourable Madam Justice Huddart |
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The Honourable Mr. Justice Hall |
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The Honourable Mr. Justice Mackenzie |
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BETWEEN: |
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TURNAGAIN HOLDINGS LTD. |
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PETITIONER/APPELLANT |
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AND: |
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ENVIRONMENTAL APPEAL BOARD, W.T. MUNRO, DEPUTY DIRECTOR OF
WILDLIFE, MINISTRY OF THE ENVIRONMENT, LANDS AND PARKS OF THE PROVINCE OF
BRITISH COLUMBIA and BYRON DALZIEL |
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RESPONDENTS |
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T.L. Robertson, Q.C. |
appearing for the Petitioner/Appellant, Turnagain Holdings Ltd. |
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N.E. Brown |
appearing for the Respondents,
W.T. Munro, Deputy Director of Wildlife and Ministry of Environment, Lands
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[1]
HUDDART, J.A.: The appellant sought an
order under the Judicial Review Procedure Act setting aside a decision of the
Environmental Appeal Board made on
[2] The issue on this appeal is whether Cole J. erred in denying the order Turnagain sought.
[3]
The Wildlife Act, S.B.C.
1982, c. 57, regulated at the relevant time, big game hunting in
[4] In May 1986, Turnagain purchased the guide area represented by Certificate No. 700748, by way of a trust agreement from a predecessor of Mr. Dalziel who held the certificate for its benefit. Turnagain provided the financing for the purchase and made sizeable monetary contributions to the improvement of the guide area that encompassed about 10,000 square miles in the Kechika area of the province. That area was prized for its sheep. Turnagain also paid royalties on the animals killed and all other expenses, including those of Mr. Dalziel, who obtained the certificate in 1988 by way of a transfer initiated by Turnagain.
[5] The Wildlife Branch of the Ministry of Environment, Land and Parks was aware of the 1986 purchase, the 1988 transfer to Mr. Dalziel, and of the practice of companies, often owned by non-residents, entering into this type of trust agreement with Canadian guide outfitters. Nevertheless, the privileges and responsibilities flowing from the licence are personal to the guide outfitters.
[6] In August 1992, the Conservation Officer Service determined that Mr. Dalziel was not complying with ss. 49(3) and 55 of the Wildlife Act. These provisions required him to be present in his guide area “during substantially all times when his assistant guides are guiding for game” and that he make and sign a guide report after each hunt and deliver the original to the regional manager. David Zirul, regional manager under the Wildlife Act for the relevant area, determined that an oral hearing should be convened under s. 62 of the Act to determine whether Mr. Dalziel should continue to enjoy the privileges afforded him by the licence and certificate. Because cancellation of the certificate was among the potential penalties should Mr. Dalziel be found to have violated the Act, Turnagain requested it be granted interested party status, or alternatively, be allowed to call a witness. Mr. Dalziel's solicitor opposed the grant of party status to Turnagain.
[7] Mr. Munro refused to grant the party status Turnagain had requested. However, he offered Turnagain the choice of appearing with intervenor status limited to the making of an opening statement, or allowing Mr. Seyl to appear as a witness called by Mr. Zirul who was prosecuting the complaint. Turnagain chose the latter course. Accordingly, its solicitor, Daniel Seyl, testified at the hearing.
[8]
Mr. Munro found that Mr.
Dalziel had breached the Wildlife Act. He suspended Mr. Dalziel’s licence,
and cancelled his certificate. Mr.
Dalziel appealed to the Environmental Appeal Board under s. 103(3) of the Act
on the ground that Mr. Munro had erred in law and breached his duty of fairness
to Turnagain when he refused it party status, and acted unreasonably in
cancelling the certificate and suspending the licence. On
As regards the majority of the case law presented by the Appellant, the Panel is of the opinion that it addresses primarily issues of public interest, while the matter at hand is one of the private rights associated with a discipline hearing.
The evidence before the Panel shows that prior to making his decision regarding participation in the appeal before him, Deputy Director Munro ascertained that neither Mr. Seyl nor Turnagain were holders of a licence or certificate.
It is, therefore, the opinion of the Panel that according to the wording of s. 62 Turnagain did not have standing as of right to participate as a party in the hearing before the Deputy Director
…
As discussed previously, the Panel considers the only party with standing as of right in a s. 62 hearing is the person actually holding the licence or certificate; in this case, Mr. Dalziel.
The panel accepts that while the statute may define who is entitled to be part of the process, it does not necessarily preclude the presence of other parties. The Panel also accepts, however, that because the s. 62 hearing was to consider Mr. Dalziel’s legal rights, the Deputy Director was required to ensure the hearing proceed without undue interference from those who did not have a legal right to be part of the discipline hearing.
The Panel, therefore, accepts the Deputy Director had the discretion, as master of the procedure to be followed at the hearing, to grant Turnagain special status to participate and to impose rules as to the nature of that participation.
Deputy Director Munro offered Turnagain what amounted to limited intervenor status or the opportunity to appear as a witness. Turnagain chose to appear as a witness and was called by the Regional Manager. The transcript of the hearing before the Deputy Director shows he allowed Turnagain to clarify statements when Turnagain requested the opportunity.
The Panel must also consider that at the first hearing, Mr. Dalziel specifically objected to Turnagain being afforded the opportunity to cross-examine witnesses. Even though the dispute which led to Mr. Dalziel taking this position has now been resolved, the Panel must consider whether it would be fair for Mr. Dalziel to, in effect, be allowed to change his mind and reverse his position from that taken at the previous hearing.
While the Panel finds it odd that the Deputy Director was not prepared to allow Turnagain to sum up at the end of the hearing, the Panel is of the opinion that it was within the Deputy Director’s jurisdiction to limit Turnagain’s participation and that in so doing, the rules of natural justice were not violated. In addition, the Panel finds it unfair and somewhat surprising that Mr. Dalziel would now protest this issue.
[9] The consequences to Turnagain of the penalty were not thought to be relevant:
The Panel is of the opinion that the Deputy Director’s duty in a s. 62 hearing is to make an order that is in the best interests of wildlife management and is fair to the affected licensee or certificate holder, and that he is not required to consider the financial implications of his order to third parties who have no standing as of right at the hearing. The Panel is of the opinion that there was no evidence represented to show that the Deputy Director erred in the exercise of his discretion in considering the factors presented in his decision, and in deciding to suspend Mr. Dalziel’s licence and cancel his certificate.
[10]
Neither Mr. Dalziel nor
Turnagain took any further action with regard to the penalties Mr. Munro imposed
and the Environmental Appeal Board affirmed. Meanwhile, discussions began with a view to
resolving land claims of the Kaska Dena First Nation. On
[11] Almost four more years passed before counsel for Turnagain wrote to the Director of the Wildlife Branch in October 1999 to advise he had been retained to apply for judicial review of the Deputy Director's 1992 decision, and asking to be advised of any contemplated dealing with the certificate and the guide area it covered. In May 2000, counsel provided the Director of the Wildlife Branch with an affidavit of Turnagain's solicitor in draft form. By reason of ill health, Mr. Seyl was not able to consider the affidavit until October 2000. As soon as it was signed, Turnagain petitioned the Court to quash the Board's decision and remit the complaint about Mr. Dalziel's conduct to the Deputy Director for a new hearing, because the original hearing was unfair to it. The effect of the order would be to validate the certificate that would expire in June 2002.
[12] To explain its seven-year delay in seeking judicial review, Turnagain provided affidavit evidence of Daniel Seyl. Mr. Seyl explained Turnagain's lack of resources to seek legal advice and his health problems.
[13] Mr. Justice Cole dismissed Turnagain’s petition, although he ruled that Mr. Munro should have granted it intervenor status with the right to call witnesses and make submissions at the original hearing. At para. 21 of his reasons for judgment, he explained why he considered this status to be a requirement of natural justice:
[21] I agree with the respondent that the duty of fairness varies with the circumstances of each case. In this case, the relationship between the petitioner and Mr. Dalziel was well known and so was the significant investment made by the petitioner in the Certificate and the territory. It was also made clear that the consequences of any decision affecting the Certificate could be detrimental to the petitioner. The real party facing punishment was the petitioner and that was made clear in Mr. Zirul's opening statement.
[14] The chambers judge found Turnagain had delayed unreasonably in bringing its petition. Although he accepted the poor health of Turnagain's solicitor precluded a petition being brought between October 1999 and October 2000, he rejected Turnagain's explanation for the delay from July 1993 to October 1999. Its evidence did not persuade him that Turnagain was financially incapable of bringing an application for judicial review during those six years. He agreed with the government respondents that a new hearing would cause them substantial prejudice. Consequently, he refused relief in the nature of certiorari.
[15]
Turnagain appeals on the basis
the chambers judge erred in the exercise of his discretion when he refused to
grant a remedy for a breach of natural justice at the administrative
decision-making level. In its view the
chambers judge's exercise of discretion was unreasonable because he did not
take into account all relevant considerations.
[16] Section 11 of the Judicial Review Procedure Act provides:
11. An application for judicial review is not barred by passage of time unless
(a) an enactment otherwise provides, and
(b) the court considers that substantial prejudice
or hardship will result to any other person affected by reason of delay.
[17]
Section 8(1) of the Act
preserves the court’s discretion to refuse to grant relief in the nature of certiorari on any ground where the court
had that discretion before
[18]
The anomaly that a person who
takes the position a privilege has not been validly cancelled is prevented by
delay from obtaining an order to that effect recalls the position of the
appellant in Carpenter v.
[19] As Lambert, J.A. commented in MacLean v. University of British Columbia Appeal Board (1993), 109 D.L.R. (4th) 569 (B.C.C.A.):
… In my opinion, the question of whether delays should affect the outcome of a judicial review application must be made in conjunction with the merits of the judicial review application itself. It is only when those merits are weighed and the prejudice to both sides has been weighed that it is possible for the chambers judge to exercise the principled and guided discretion that is conferred on a chambers judge in relation to granting a remedy under the Judicial Review Procedure Act.
[20]
The first ground of appeal
turns on the chambers judge's refusal to give credence to Mr. Seyl’s uncontradicted
affidavit evidence. On
[27] The position taken by the petitioner is
that between the decision of the Environmental Appeal Board on
[28] According to the petitioner's counsel who appeared before the Environmental Appeal Board, the shareholders of the petitioner were American hunters who loaned the company an amount of approximately $600,000 for operating purposes. Therefore I reject the petitioner's argument that during the long period of delay they did not have the financial means to pursue their legal options.
[21] In Turnagain's view, the outright rejection of Mr. Seyl's evidence was unreasonable, speculative and based upon a misinterpretation of the evidence in at least three ways.
[22] First, the chambers judge's quotation from the testimony of Mr. Seyl at the 1992 hearing that the operation “was not being profitable at all and they were not worried about it being profitable," was taken out of context. While Turnagain may not have been concerned with the profitability of the operation at that time, its concern about ongoing business losses negates the inference that Turnagain had limitless resources. Second, the evidence before the Board that the shareholders of Turnagain were hunters who had loaned the company $600,000 for operating purposes, on which the chambers judge relied to find Turnagain was not without the financial resources to begin judicial review proceedings, was irrelevant when determining the financial viability of a corporation. Third, the chambers judge failed to consider that many of the physical assets of Turnagain had value only for their use in operating the guide outfitting territory, which value was lost with the loss of its certificate.
[23] I do not find this submission persuasive. To the extent Turnagain may have been or become a viable commercial operation, it lost the opportunity to earn income. It does not follow that Turnagain did not have access to sources of funding it had used to improve the guide area for hunting purposes, or that it could not sell some of its other assets. There was no evidence that the investors in Turnagain could have not funded a legal opinion or judicial review. The evidence is persuasive that Turnagain operated by way of shareholders’ loans from shareholders with substantial resources.
[24] More difficult is the second alleged error in principle, that the chambers judge failed to include in his consideration of the prejudice to the government respondents the prejudice that inured to the appellants from the cancellation of the certificate.
[25] The chambers judge found that Turnagain had spent over USD 1 million on the guide area. It lost the opportunity to earn income from that investment when the certificate was cancelled. It lost whatever value that certificate might have had in the marketplace. However, much of that value had been foregone by Turnagain's delay in bringing its petition for judicial review. The future benefit of the order sought would have been affected by the certificate's expiry in June 2002, some 20 months after the petition was filed. There was no guarantee of any renewal of the certificate. That much is clear from the importance the rights represented by the certificate have had to the treaty negotiations process with the Kaska Dena First Nation, whose claims include lands, natural resources, cultural artefacts and heritage.
[26] As is evident from the transcript, the chambers judge understood he was to weigh the value of the certificate to Turnagain against the value of the certificate it had acquired to the government and the Kaska Dena First Nation at a time when Turnagain was not asserting any interest in it. Given that Turnagain did not place sufficient value on the certificate to seek to protect its significant investment by relatively modest additional borrowing, I cannot find the chambers judge erred in his weighing of the parties' comparative prejudice. In reaching this conclusion it is not necessary to consider the $97,200 the federal and provincial government spent in July 2000 on a study to determine the feasibility of a guide outfitting operation in the territory covered by the certificate, if the guide area is obtained by the Kaska Dena.
[27] If non-economic factors are brought into the consideration of the balance of prejudice, the scale weighs even more heavily in favour of the government respondents. Had the chambers judge quashed the decision of the Environmental Appeal Board, set aside the decision of Mr. Munro, and remitted the complaint for a new hearing, his order would have had serious consequences for the reasonable administration of Crown land because of the uncertainty it would introduce into public administration of Crown resources. As the House of Lords noted in O'Reilly v. MacKinnon, [1983] 2 A.C. 237 (H.L.) at 280-1:
The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.
[28] It behoves a person challenging the validity of an administrative decision to seek judicial review promptly. Thus, notwithstanding his finding that the duty of fairness was breached, Cole J. properly denied a declaration of invalidity, as did the chambers judge in Klahoose First Nation v. British Columbia, supra.
[29] I would dismiss the appeal.
[30] HALL, J.A.: I agree.
[31] MACKENZIE, J.A.: I agree.
”The Honourable Madam Justice Huddart”
CORRECTION: Style of Cause - This
matter was heard