620 Connaught Ltd. et al. v. Canada (Attorney General) et al., 2006 FCA 252

• Judge: Linden, Nadon and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 31, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FCA 252;(2006), 352 N.R. 177 (FCA)

620 Connaught Ltd. v. Can. (A.G.) (2006), 352 N.R. 177 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. JL.039

620 Connaught Ltd., operating as Downstream Bar, 263053 Alberta Ltd., operating as Miss Italia Ristorante, 313769 Alberta Ltd., operating as Jasper House Bungalows, 659510 Alberta Ltd., operating as Buckles Restaurant & Saloon, Alex Holdings Ltd., operating as Something Else Restaurant, Athabasca Motor Hotel (1972) Ltd., operating as Athabasca Hotel, Lina and Claudio Holdings Ltd., operating as Beckers Gourmet Restaurant, Cantonese Restaurant Ltd., Earls Restaurant (Jasper) Ltd., Fiddle River Seafood Company Ltd., George Andrew & Sons Ltd. operating as Astoria Hotel Company, Limited, Glacier International Ltd., operating as Whistlers Inn, Husereau Restaurant, Jasper Inn Investments Ltd., operating as The Inn Restaurant, Kabos Holding Ltd., operating as Karouzos Steakhouse, Kontos Investments Ltd. operating as Kontos Restaurant, L & W Vlahos Holdings Ltd. operating as L & W Restaurant, La Fiesta Restaurant Ltd., Larry Holdings Ltd., operating as Mount Robson Restaurant, Maligne Tours Ltd., Sawridge Enterprises Inc., operating as Sawridge Inn & Conference Center, T.C. Restaurants Ltd., operating as Villa Caruso Steak House & Bar, and Tonquin Prime Rib Village Ltd. (appellants/applicants) v. Attorney General of Canada, Minister of Environment, Superintendent of Jasper National Park and Parks Canada Agency (respondents)

(A-400-05; 2006 FCA 252)

Indexed As: 620 Connaught Ltd. et al. v. Canada (Attorney General) et al.

Federal Court of Appeal

Linden, Nadon and Evans, JJ.A.

July 6, 2006.

Summary:

The appellants owned businesses in Jasper National Park which served alcoholic bever­ages. In order to operate those establish­ments, the appellants required a business licence, for which they had to pay a fee based on a percentage of their annual alcohol purchases. The appellants sought a declar­ation that setting the licence fees on a per­centage basis was invalid and ultra vires the Minister of Canadian Heritage.

The Federal Court, in a decision reported at 274 F.T.R. 311, dismissed the application. The appellants appealed.

The Federal Court of Appeal dismissed the appeal.

Crown - Topic 6879

Crown lands - National and provincial parks - Park use permits and licences (incl. fees) - The appellants owned businesses in Jasper National Park which served alco­holic beverages - They were required to have a business licence, for which they had to pay a fee based on a percentage of their annual alcohol purchases - The appellants sought a declaration that setting the licence fees on a percentage basis was invalid - At issue was whether the portion of the li­cence fee based on a percentage of the ap­pel­lants' annual alcohol purchases was a regulatory charge or a tax - If it was a tax, it would be beyond the statutory power of the Minister of Canadian Heritage to fix licence fees - The application judge con­cluded that the licence fee was a regulatory charge based on the test in Westbank First Nation (S.C.C.) - The judge held that the regulatory scheme relevant for the purpose of the Westbank test was that regulating the use of Jasper National Park, not the li­censing scheme for the sale of alcohol in the Park - She found that the appellants' businesses benefited from the general in­fra­structure of the Park, and that the total amount collected from them in fees was much less than the cost of operating the Park - Accordingly, there was a sufficient nexus between the licence fee and the scheme regulating the use of the Park to char­acterize the fee as a regulatory charge - The Federal Court of Appeal affirmed the decision - See paragraphs 20 to 70.

Crown - Topic 6879

Crown lands - National and provincial parks - Park use permits and licences (incl. fees) - The appellants, who owned busi­nesses in Jasper National Park, applied for declara­tory relief with respect to the setting of the fees for business licences in the Park - The appellants argued that the federal Crown and the Town of Jasper had entered into an Agreement, under which the Minis­ter of Canadian Heritage had transferred many local gov­ernment func­tions to the Town, including the fixing of business licence fees - Ac­cordingly, the Minister ceased to have authority to impose licence fees in Jasper - The applica­tion judge re­jected the argu­ment on the ground that art. 6.3 of the Agree­ment provided that "noth­ing in this Agree­ment affects the operation of any regula­tion made under the Canada Na­tional Parks Act, until such regulation has been repealed or amended to the extent that it no longer applies to the Municipal­ity of Jasper" - The appellants appealed, arguing that art. 6.3 did not apply to busi­ness licence fees because they were fixed pursu­ant to s. 24 of the Parks Canada Agen­cy Act, not the Canada Na­tional Parks Act - The Federal Court of Appeal rejected the argument - The power to re­quire the pay­ment of a licence fee to oper­ate a business in Jasper National Park was contained in s. 4(2) of the Business Regu­lations enacted under the Canada National Parks Act - Art. 6.3 of the Agree­ment did not affect the operation of that provision - The fact that s. 4(2) of the Regulations also specified that the appli­cable fee was fixed by the Min­ister under s. 24 of the Parks Canada Agency Act was immaterial - See para­graphs 71 to 74.

Cases Noticed:

Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134; 246 N.R. 201; 129 B.C.A.C. 1; 210 W.A.C. 1, appld. [para. 2].

Sunshine Village Corp. v. Parks Canada et al., [2004] 3 F.C.R. 600; 320 N.R. 331; 2004 FCA 166, refd to. [para. 22].

Lawson v. Interior Tree Fruit and Veg­etable Committee of Direction, [1931] S.C.R. 357, refd to. [para. 23].

Exported Natural Gas Tax, Re - see Alberta Natural Gas Tax Reference.

Alberta Natural Gas Tax Reference, [1982] 1 S.C.R. 1004; 42 N.R. 361; 37 A.R. 541, refd to. [para. 24].

Eurig Estate v. Ontario Court (General Division), Registrar, [1998] 2 S.C.R. 565; 231 N.R. 55; 114 O.A.C. 55, dist. [para. 30].

Ontario Home Builders' Association et al. v. Board of Education of York Region et al., [1996] 2 S.C.R. 929; 201 N.R. 81; 93 O.A.C. 241, consd. [para. 48].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al. (2004), 273 N.B.R.(2d) 6; 717 A.P.R. 6; 2004 NBQB 84, varied (2005), 285 N.B.R.(2d) 201; 744 A.P.R. 201; 2005 NBCA 56, leave to appeal granted (2005), 349 N.R. 399 (S.C.C.), refd to. [para. 51].

Nanaimo Immigrant Settlement Society et al. v. British Columbia (2004), 202 B.C.A.C. 172; 331 W.A.C. 172; 242 D.L.R.(4th) 394; 2004 BCCA 410, refd to. [para. 63].

Mount Cook National Park Board v. Mount Cook Metals Ltd., [1972] N.Z.L.R. 481 (N.Z.C.A.), refd to. [para. 66].

Counsel:

Jack Agrios, Q.C., and Mrs. Agrios, for the appellants/applicants;

Bruce Hughson, for the respondent.

Solicitors of Record:

Jack Agrios, Q.C., Edmonton, Alberta, for the appellants/applicants;

John H. Sims, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on May 31, 2006, at Edmonton, Alberta, before Linden, Evans and Nadon, JJ.A., of the Federal Court of Ap­peal. The following judgment of the Court of Appeal was delivered by Evans, J.A., on July 6, 2006.