Cook et al. v. Alberta (Minister of Environmental Protection), 2001 ABCA 276

• Judge: McFadyen, Hunt and Berger, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 10, 2001
• Citations: 2001 ABCA 276;(2001), 293 A.R. 237 (CA)

Cook v. Alta. (2001), 293 A.R. 237 (CA);

    257 W.A.C. 237

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. DE.005

Donald C. Cook and Eva Sarty (appellants/applicants) v. Her Majesty the Queen in Right of Alberta (as represented by the Minister of Environmental Protection) (respondent/respondent)

(9903-0269-AC; 2001 ABCA 276)

Indexed As: Cook et al. v. Alberta (Minister of Environmental Protection)

Alberta Court of Appeal

McFadyen, Hunt and Berger, JJ.A.

November 21, 2001.

Summary:

The applicants sought approval to open a campground on public land that was subject to a forest management agreement between the Alberta government and Sunpine Forest Products Ltd (Sunpine). Sunpine refused to consent to the granting of a lease to the applicants. Alberta Environmental Protection cancelled the applicants' lease application. The applicants requested the Minister to exercise his discretion to withdraw the land from the agreement. The Minister advised the applicants to appeal and that the Appeal Committee would make a final land use decision regarding their application. The Appeal Committee recommended the granting of a recreational lease and the withdrawal of the land. The Minister rejected the recommendation. The applicants applied for an order requiring the Minister to give them a lease.

The Alberta Court of Queen's Bench, in a decision reported at 241 A.R. 25, dismissed the application. The applicants appealed.

The Alberta Court of Appeal allowed the appeal in part and remitted the matter to the Minister with the direction that he provide reasons for his decision not to reinstate the lease application.

Administrative Law - Topic 547

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When required - Applicants applied to lease public land that was subject to a forest management agreement - The Minister of Environmental Protection cancelled the lease application - The applicants requested the Minister to exercise his discretion to withdraw the land from the agreement - The Minister advised the applicants to appeal and that the Appeal Committee would make a final land use decision - The Committee recommended allowing the application - The Minister rejected the recommendation - The applicants sought judicial review, asserting that they had a legitimate expectation that the Committee would make a final decision - The Alberta Court of Appeal held that, to the extent that the applicants sought reinstatement of Appeal Committee's decision, the outcome was substantive and could not be grounded on the doctrine of legitimate expectations - See paragraphs 29 to 32 - However, the applicants' expectations were relevant to procedural fairness - They had spent years and considerable resources in an effort to obtain the lease and the circumstances constituted a rare exception where they were entitled to reasons for the Minister's decision - See paragraphs 36 to 54.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See Administrative Law - Topic 547 ].

Administrative Law - Topic 3510

Judicial review - Mandamus - General - Review of exercise of discretionary power - Applicants applied to lease public land that was subject to a forest management agreement between the Alberta government and Sunpine - The Minister of Environmental Protection cancelled the lease application - The Minister refused the applicants' request to withdraw the land from the management agreement - The applicants appealed - The Appeal Committee recommended allowing the application - The Minister rejected the recommendation - The applicants applied for an order requiring the Minister to lease the land to them - A Chambers judge held that mandamus was not an appropriate remedy - Even if the Minister had improperly exercised his discretion, the remedy would typically be to return the matter for reconsideration - The court could not force the Minister to exercise his discretion in a particular way - Additionally, the Committee's recommendation was not a decision - The Alberta Court of Appeal dismissed an appeal - See paragraphs 33 to 35.

Administrative Law - Topic 3589

Judicial review - Mandamus - Bars - Discretionary power - [See Administrative Law - Topic 3510 ].

Administrative Law - Topic 3705

Judicial review - Mandamus - Mandamus to government and executive - Ministers of the Crown - [See Administrative Law - Topic 3510 ].

Crown - Topic 704

Authority of Ministers - Delegation of - Nondelegable matters - Applicants applied to lease public land that was subject to a forest management agreement - The Minister of Environmental Protection cancelled the application - The applicants requested the Minister to exercise his discretion to withdraw the land from the agreement - The Minister advised the applicants to appeal and that the Appeal Committee would make a final land use decision - The Committee recommended allowing the application - The Minister rejected the recommendation - The applicants appealed the dismissal of their judicial review application, asserting that the chambers judge erred in finding that the Minister had not and could not delegate his discretion to the Appeal Committee - The Alberta Court of Appeal held that if such a finding was made, it was supported by the evidence - Generally, a statutory body could not sub-delegate legislative powers unless authorized to do so by the legislature - The power to delegate could be implied if there were many tasks and it was unreasonable to expect personal performance - However, it was unlikely that the Legislature intended the Appeal Committee to exercise the Minister's power to withdraw the land where the power was inherently discretionary - See paragraphs 22 to 28.

Crown - Topic 706

Authority of Ministers - Delegation of - What constitutes a delegation - [See Crown - Topic 704 ].

Cases Noticed:

Myers v. Law Society of Newfoundland (1998), 165 Nfld. & P.E.I.R. 150; 509 A.P.R. 150; 163 D.L.R.(4th) 62 (Nfld. C.A.), refd to. [para. 25].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, refd to. [para. 28].

Orellana v. Minister of Employment and Immigration, [1979] F.C.J. No. 607 (F.C.A.), refd to. [para. 28].

Forget v. Québec (Procureur général) and Office de la langue française, [1988] 2 S.C.R. 90; 87 N.R. 37; 17 Q.A.C. 241, refd to. [para. 28].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; 75 D.L.R.(4th) 385; 46 Admin. L.R. 161, refd to. [para. 30].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 31].

Aoptex Inc. v. Canada (Attorney General) - see Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc.

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 35].

Trinity Western University et al. v. College of Teachers (B.C.) et al. (2001), 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161, refd to. [para. 35].

Fenske et al. v. Alberta (Minister of Environment) et al. (2000), 272 A.R. 247 (Q.B.), refd to. [para. 36].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201; 160 D.L.R.(4th) 193, addendum [1998] 1 S.C.R. 1222, refd to. [para. 38].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 45].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services) (2001), 271 N.R. 104 (S.C.C.), refd to. [para. 45].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, consd. [para. 46].

Counsel:

D.C. Cook and E. Sarty, on their own behalf;

D.J. Wilson and J.D. Schick, for the respondent.

This appeal was heard on April 10, 2001, by McFadyen, Hunt and Berger, JJ.A., of the Alberta Court of Appeal. Hunt, J.A., delivered the following reasons for judgment of the court on November 21, 2001.