Alberta v. Cox, 2014 ABQB 626

• Judge: Sulyma, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 15, 2014
• Citations: 2014 ABQB 626;(2014), 597 A.R. 276 (QB)

Alta. v. Cox (2014), 597 A.R. 276 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. OC.090

Her Majesty the Queen in Right of Alberta (plaintiff) v. Darren Cox (defendant)

(0503 08652)

Darren Cox (plaintiff) v. Her Majesty the Queen in Right of Alberta (defendant)

(0503 08651; 2014 ABQB 626)

Indexed As: Alberta v. Cox

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sulyma, J.

October 15, 2014.

Summary:

This was an action in debt arising from two timber dispositions. In both cases, the Crown levied penalties, prescribed fees and demanded timber dues from Cox. Cox filed a defence and counterclaim in breach of contract and negligent misrepresentation. He also applied for dismissal of the action for delay. This application was adjourned pending the trial's outcome.

The Alberta Court of Queen's Bench allowed the Crown's action and dismissed the counterclaim.

Crown - Topic 462

Statutes affecting the Crown - Particular matters - Interest - This was an action in debt arising from two timber dispositions - In both cases, the Crown levied penalties, prescribed fees and demanded timber dues from Cox - A penalty for operating a sawmill on a grazing lease without authorization was assessed under s. 48 of the Public Lands Act as was a penalty for clearing a buffer of 427 hectares of land within a commercial timber permit without authorization - The Crown relied on s. 97.5 of the Timber Management Regulations and s. 18 of the Dispositions and Fees Regulation as authorization to charge interest on the unpaid amounts at a rate of 1% per month - The Alberta Court of Queen's Bench held that the Crown's entitlement to interest on penalties under the Public Lands Act arose under the Charging of Interest on Amounts Owing to the Crown Regulations - Section 97.5 referred to monies assessed under the Forests Act and regulations - Section 18 referred to monies payable "under a disposition leading to title" - Neither of those applied to money owing under s. 48 of the Public Lands Act - See paragraphs 88 to 91.

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepresentation - This was an action in debt arising from two timber dispositions - In both cases, the Crown levied penalties, prescribed fees and demanded timber dues from Cox - Cox filed a defence and counterclaim in breach of contract and negligent misrepresentation - Cox asserted that two government employees, Schultz and Wilkinson, made negligent misrepresentations that Cox's application for an export permit would be successful - The Alberta Court of Queen's Bench dismissed the counterclaim - Cox was attempting to collaterally attack the Minister's decision with his counterclaim - He had not sought judicial review of the decision, but his argument here touched on points of law that were more properly administrative than tort-based - Further, while the cause of action was that Schultz and Wilkinson made negligent misrepresentations, Cox and his lawyer knew that the assistant deputy minister was responsible for making the export permit decision - The legislative regime made it clear that timber could not leave the province without the Minister's approval and that approval was discretionary - If there was a negligent misrepresentation, it was unreasonable for Cox to rely on statements by individuals who did not have the authority to issue the permit - See paragraphs 119 to 129.

Crown - Topic 4005

Actions by and against Crown in right of Canada - General - For failure to issue licences or permits - [See Crown - Topic 1576 ].

Crown - Topic 6702

Crown lands - General - Proof that land is Crown land - This was an action in debt arising from two timber dispositions - In both cases, the Crown levied penalties, prescribed fees and demanded timber dues from Cox - A penalty for operating a sawmill on a grazing lease without authorization was assessed under s. 48 of the Public Lands Act - Cox asserted that he believed that his family owned the land on which he had built the sawmill and cut timber and that he had exercised due diligence by obtaining a 1998 municipal map that showed that the lands were titled to his father - The Alberta Court of Queen's Bench rejected the argument - A sophisticated businessperson engaged in a large scale operation did not demonstrate due diligence by relying on an outdated map, family history and hearsay - He could have conducted a land titles search or asked to see the grazing lease - Cox did not exercise due diligence in ascertaining whether the land belonged to the Cox family - See paragraphs 92 to 98.

Crown - Topic 6881

Crown lands - Licences or permits to use - General - [See Crown - Topic 1576 ].

Evidence - Topic 2516

Special modes of proof - Presumptions - Regularity - Public officials - Acts of - This was an action in debt arising from two timber dispositions - In both cases, the Crown levied penalties, prescribed fees and demanded timber dues from Cox - In his written submissions after trial, Cox asserted that the Crown had not proven all the elements of its causes of action, particularly that Hovan, the forestry officer who issued the penalties, had been delegated the power to do so - The Crown, in reply, relied on the presumption of regularity to assert that a court should presume that all steps under a statute had been taken and that a person acting in an official capacity had authorization and his or her actions were regular - The Alberta Court of Queen's Bench agreed that, in the absence of notice and an opportunity to adduce evidence on the issue, the presumption of regularity applied - See paragraphs 74 and 75.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - [See Crown - Topic 1576 ].

Fraud and Misrepresentation - Topic 2512

Misrepresentation - General principles - Action for economic loss arising from misstatement - [See Crown - Topic 1576 ].

Fraud and Misrepresentation - Topic 2535

Misrepresentation - Elements - Reliance - [See Crown - Topic 1576 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - This was an action in debt arising from two timber dispositions - In both cases, the Crown levied penalties, prescribed fees and demanded timber dues from Cox - Timber dues were claimed in respect of Permit 1, which was issued in 2002 - Cox claimed that all timber had been produced from the block by March 2003 - As the action was not commenced until May 2005, Cox's position was that it was out of time - The Alberta Court of Queen's Bench held that the action was filed in time - Cox had not filed the TM7 forms that would have notified the Crown of the volume of wood that had been cut - The Crown had no knowledge of the missing timber until September 2003 when it was informed by the mill that purchased the lumber - September 2003 was the earliest date that the Crown knew of the injury - The claim was filed within two years of that date - See paragraphs 106 to 110.

Limitation of Actions - Topic 2050

Actions in contract - Actions for debt - General - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 2052

Actions in contract - Actions for debt - When time begins to run - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Practice - Topic 2643

Service - Generally - Valid service - What constitutes - This was an action in debt arising from two timber dispositions - In both cases, the Crown levied penalties, prescribed fees and demanded timber dues from Cox - Cox asserted that the penalties issued under s. 53 of the Forests Act were not served properly in accordance with s. 54 of the Act - The Alberta Court of Queen's Bench held that service of notices of penalty by ordinary mail on Cox's lawyer was sufficient - The lawyer had advised the Crown that he had been retained by Cox and had corresponded with the Crown on these issues before the penalty letters were issued - Cox was aware of the case against him - Further, the Forests Act did not require proof of service - Section 54 did not set out service requirements but specified when payment was due - See paragraphs 76 to 83.

Practice - Topic 2646

Service - Generally - On solicitor of party - [See Practice - Topic 2643 ].

Practice - Topic 5374

Dismissal of action - Grounds - General and want of prosecution - Collateral attack on administrative decision - [See Crown - Topic 1576 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - This was an action in debt arising from two timber dispositions - In both cases, the Crown levied penalties, prescribed fees and demanded timber dues from Cox - Cox filed a defence and counterclaim in breach of contract and negligent misrepresentation - The Alberta Court of Queen's Bench held that the matter was not too complex for a summary trial - The most contentious issue was the counterclaim - The evidence raised questions of credibility that could not be resolved without viva voce evidence - However, the Crown's position was that, even if there had been a misrepresentation, Cox had not proven the other elements of the cause of action, particularly whether it was reasonable for him to rely on the alleged misrepresentation - If the Crown could demonstrate that those elements had not been proven without requiring viva voce evidence, the counterclaim could be dismissed despite the conflicting affidavit evidence - See paragraphs 68 to 73.

Cases Noticed:

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 30].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 32].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 32].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352, refd to. [para. 32].

South Yukon Forest Corp. et al. v. Canada (2012), 431 N.R. 286; 2012 FCA 165, refd to. [para. 40].

St. Peter's Evangelical Lutheran (Ottawa) (Trustees) v. Ottawa (City) et al., [1982] 2 S.C.R. 616; 45 N.R. 271, refd to. [para. 44].

Dynamic Oil Tools Inc. v. Dynamic Petroleum Services Inc. et al. (2002), 333 A.R. 201; 2002 ABQB 894 (Master), refd to. [para. 45].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 49].

Alberta v. Fjeld (2008), 459 A.R. 272; 2008 ABQB 558, refd to. [para. 53].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 64].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285; 2000 SCC 60, refd to. [para. 65].

Charles Estate, Re (2014), 577 A.R. 54; 613 W.A.C. 54; 2014 ABCA 200, refd to. [para. 73].

Charles v. Young - see Charles Estate, Re.

Canada Safeway Ltd. v. Surrey (City) (2004), 205 B.C.A.C. 9; 337 W.A.C. 9; 2004 BCCA 499, refd to. [para. 74].

Leth Farms Ltd. et al. v. Alberta Turkey Growers Marketing Board et al. (2000), 255 A.R. 50; 220 W.A.C. 50; 2000 ABCA 32, refd to. [para. 74].

Hamilton (City) v. Ellis, 2010 ONCJ 217, refd to. [para. 93].

Hegel et al. v. British Columbia et al. (2011), 312 B.C.A.C. 208; 531 W.A.C. 208; 2011 BCCA 446, refd to. [para. 94].

Counsel:

Monica Johnson and M. Burns (Alberta Justice - Civil Litigation), for the plaintiff;

Louis M.H. Belzil, Q.C. (Rackel Belzil LLP), for the defendant.

This action and counterclaim were heard on July 8 and 9, 2013, by Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 15, 2014.