Cabana v. Newfoundland and Labrador et al., (2015) 373 Nfld. & P.E.I.R. 283 (NLTD(G))

• Judge: Murphy, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 12, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 373 Nfld. & P.E.I.R. 283 (NLTD(G))

Cabana v. Nfld. (2015), 373 Nfld. & P.E.I.R. 283 (NLTD(G));

    1161 A.P.R. 283

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. NO.027

Brad Cabana (applicant) v. Her Majesty the Queen in Right of the Government of Newfoundland and Labrador (first respondent), Nalcor Energy (second respondent) and Churchill Falls Labrador Corporation (third respondent)

(201401G8365; 2015 NLTD(G) 158)

Indexed As: Cabana v. Newfoundland and Labrador et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Murphy, J.

November 9, 2015.

Summary:

Cabana opposed a hydroelectric development project. He sued the respondents based on several claims and applied for an interlocutory injunction to stop any further development on the project, including the expenditure of public funds. Cabana sought public interest standing with respect to the statement of claim and the injunction application.

The Newfoundland and Labrador Supreme Court, Trial Division (General), denied the request for public interest standing. Consequently, Cabana's claim and application were dismissed.

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - Cabana opposed a hydroelectric project - He sued the respondents based on several claims and applied for an injunction to stop any further development on the project, including the expenditure of public funds - Cabana sought public interest standing - The Newfoundland and Labrador Supreme Court, Trial Division (General), denied the request for public interest standing - The ultimate issue, whether the development of the project and the consequent expenditure of public funds should be halted, was not justiciable because (1) Cabana's claim was speculative and contingent, being based on the possibility that the project would not be successful due to the risk of future successful legal action against the respondents which would result in negative financial consequences to ratepayers and taxpayers; and (2) it was purely political and fell outside the court's expertise - Nor did the claim raise a serious issue in the legal sense of that term - Cabana did not have a real stake or genuine interest in the litigation - Being a taxpayer or consumer of electricity was not enough, nor was the fact that he was a vocal critic of the project - It was also relevant that there was no evidence that Cabana had any connection whatsoever to the two aboriginal groups or the corporation whose rights he alleged had been violated - Finally, the proposed suit was not a reasonable and effective way to bring the issue before the court given (1) Cabana's capacity to undertake the litigation (limited financial resources, self-represented and no legal expertise); and (2) the possibility that it could have a significant impact on the rights of others who were not involved in the litigation.

Cases Noticed:

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General) (2012), 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, appld. [para. 6].

Smith v. Attorney General of Ontario, [1924] S.C.R. 331; 42 C.C.C. 215, refd to. [para. 7].

Borowski v. Canada (Minister of Justice) and Canada (Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; 130 D.L.R.(3d) 588, refd to. [para. 8].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 10].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203; 161 D.L.R.(4th) 385, refd to. [para. 19].

Nunatsiavut Government v. Newfoundland and Labrador (Minister of Environment and Conservation) (2015), 360 Nfld. & P.E.I.R. 21; 1118 A.P.R. 21; 2015 NLTD(G) 1, refd to. [para. 33].

Nunatsiavut Government v. Canada (Attorney General) et al., [2015] F.T.R. TBEd. MY.033; 2015 FC 492, refd to. [para. 33].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481, appld. [para. 35].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 48].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338; 33 D.L.R.(4th) 321, refd to. [para. 48].

Shiell v. Amok Ltd. and Saskatchewan Mining Corp. et al. (1987), 58 Sask.R. 141; 5 A.C.W.S.(3d) 174 (Q.B.), refd to. [para. 52].

Landau v. Ontario (Attorney General) et al., [2013] O.T.C. Uned. 6152; 2013 ONSC 6152, refd to. [para. 63].

Counsel:

Brad Cabana, on his own behalf;

Rolf Pritchard, Q.C., and Justin Mellor, for the first respondent;

Thomas R. Kendell, Q.C., for the second respondent;

Jamie Smith, Q.C., for the third respondent.

This matter was heard at St. John's, N.L., on May 12, 2015, before Murphy, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on November 9, 2015.