Edmonton Flying Club et al. v. Edmonton Regional Airports Authority et al., (2012) 543 A.R. 28 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 13, 2012
• Citations: (2012), 543 A.R. 28 (QB);2012 ABQB 563

Edmonton Flying Club v. Airports Authority (2012), 543 A.R. 28 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. SE.065

Edmonton Flying Club and 1222663 Alberta Ltd. (plaintiffs) v. Edmonton Regional Airports Authority and the City of Edmonton (defendants)

(1103 11120)

Airco Aircraft Charters Ltd. (plaintiff) v. Edmonton Regional Airports Authority and the City of Edmonton (defendants)

(0903 16530)

Edmonton Flying Club (plaintiff) v. Edmonton Regional Airports Authority and Edmonton Airports Inc. (defendants)

(1003 00819)

Edmonton Flying Club (plaintiff) v. Edmonton Regional Airports Authority and the City of Edmonton (defendants)

(1103 06357)

Morningstar Air Express Inc., Morningstar Partners Ltd. and Morningstar Air Corporation (plaintiffs) v. Edmonton Regional Airports Authority, the City of Edmonton, Shell Canada Limited and Shell Canada Op Inc. (defendants)

(1103 12234)

( 2012 ABQB 563)

Indexed As: Edmonton Flying Club et al. v. Edmonton Regional Airports Authority et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

September 13, 2012.

Summary:

The Edmonton Flying Club effectively had a lease with the City of Edmonton entitling the Club to operate out of the Edmonton City Centre Airport until December 31, 2028. On July 8, 2009, the City announced a phased closure of the Airport. The Club sued the City, seeking injunctive relief and damages. The Club applied to sever the issue of its entitlement to a permanent injunction from its claim for damages.

The Alberta Court of Queen's Bench allowed the application.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The Edmonton Flying Club effectively had a lease with the City of Edmonton entitling the Club to operate out of the Edmonton City Centre Airport until December 31, 2028 - On July 8, 2009, the City announced a phased closure of the Airport - The Club sued the City, seeking injunctive relief and damages - The Club applied under rule 7.1(1) of the Rules of Court to sever the issue of its entitlement to an injunction from its claim for damages - The Alberta Court of Queen's Bench stated that "For the purposes of this application, I agree with the respondents's contention that a determination on severance requires the court to consider all of the aims and objectives set out in Rule 7.l. In other words, for the purposes of this decision, I attach no significance to the normally disjunctive word 'or' found in each of sub Rules 7.1(1), 7.1(2) and 7.1(3)." - See paragraph 27.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The Edmonton Flying Club effectively had a lease with the City of Edmonton entitling the Club to operate out of the Edmonton City Centre Airport until December 31, 2028 - On July 8, 2009, the City announced a phased closure of the Airport - The Club sued the City, seeking injunctive relief and damages - The Club applied under rule 7.1(1) of the Rules of Court to sever the issue of its entitlement to an injunction from its claim for damages - The City asserted that severance would be contrary to the aims set out in rule 7.1 since the two issues were not distinct, but intertwined (i.e., damages was a factor to be weighed in determining whether to grant injunctive relief) - The Alberta Court of Queen's Bench allowed the application - There was a good probability that severance would dispose of part of a claim - Two unique features of the application had not been litigated in any similar proceedings and uniqueness was one basis for preferring equitable relief to common law relief - Also, the Club has undertaken not to pursue damages if it obtained injunctive relief - There would be no overlap in evidence in the two proceedings - Moreover, since the damages claim would be tried with the damages claims in other actions, and the other plaintiffs were not asking for injunctive relief, it was in everyone's interest to deal separately, and at the outset, with the Club's claim for injunctive relief - Finally, a severance would result in considerable saving of expense to all parties, which would coincidentally level the playing field between the Club and the City, and would not cause hardship to any party - See paragraphs 1 to 57.

Statutes - Topic 2414

Interpretation - Interpretation of words and phrases - Disjunctive words or phrases - [See first Practice - Topic 5204 ].

Cases Noticed:

Gallant v. Farries (2012), 522 A.R. 13; 544 W.A.C. 13; 2012 ABCA 98, refd to. [para. 8].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 2011 ABQB 29, refd to. [para. 8].

Nowicki v. Price et al. (2011), 516 A.R. 105; 2011 ABQB 133, refd to. [para. 8].

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1991), 114 A.R. 27; 1991 ABCA 48, refd to. [para. 8].

1244034 Alberta Ltd. v. Walton International Group Inc. et al. (2007), 422 A.R. 189; 415 W.A.C. 189; 2007 CarswellAlta 1562; 2007 ABCA 372, leave to appeal denied (2008), 387 N.R. 383 (S.C.C.), refd to. [para. 8].

Delta Hotels Ltd. v. Okabe Canada Investments Co. et al. (1991), 119 A.R. 366; 81 Alta. L.R.(2d) 338; 1991 CarswellAlta 126 (Q.B.), refd to. [para. 8].

Potash Corp. of Saskatchewan Mining Ltd. v. Allendale Mutual Insurance Co. (1989), 80 Sask.R. 184 (C.A.), refd to. [para. 9].

Saskatchewan Trust Co. (Liquidation) v. Coopers & Lybrand (2001), 204 Sask.R. 29; 2001 SKQB 6, refd to. [para. 9].

Air Canada et al. v. WestJet Airlines Ltd. et al., [2005] O.T.C. 1092; 20 C.P.C.(6th) 141 (Sup. Ct.), refd to. [para. 9].

Elcano Acceptance Ltd. et al. v. Richmond, Stambler & Mills (1986), 16 O.A.C. 69 (C.A.), refd to. [para. 9].

Stevens (John D.) Insurance Ltd. et al. v. Mullin et al. (1994), 151 N.B.R.(2d) 241; 387 A.P.R. 241 (T.D.), refd to. [para. 9].

Evergreen Building Ltd. v. IBI Leaseholds Ltd. (2005), 219 B.C.A.C. 165; 361 W.A.C. 165; 38 R.P.R.(4th) 179 (B.C.C.A.), refd to. [para. 9].

Airco Aircraft Charters Ltd. v. Edmonton Regional Airports Authority, [2010] A.R. Uned. 679; 2010 ABCA 364, dist. [para. 9].

Gainers Inc. v. Pocklington Holdings Inc. (2000), 271 A.R. 280; 234 W.A.C. 280; 2000 CarswellAlta 1295; 2000 ABCA 307, refd to. [para. 9].

369413 Alberta Ltd. v. Pocklington - see Gainers Inc. v. Pocklington Holdings Inc.

Conway et al. v. Zinkhofer, [2008] A.R. Uned. 306; 2008 CarswellAlta 1764; 2008 ABCA 392, refd to. [para. 9].

Mraiche Investment Corp. v. McLennan Ross LLP et al. (2012), 524 A.R. 151; 545 W.A.C. 151; 2012 CarswellAlta 390; 2012 ABCA 95, refd to. [para. 9].

Redland Bricks v. Morris, [1979] A.C. 652 (H.L.), refd to. [para. 9].

Airco Aircraft Charters Ltd. v. Edmonton Regional Airports Authority, [2010] A.R. Uned. 696; 2010 ABQB. 397, refd to. [para. 10].

Airco Aircraft Charters Ltd. v. Edmonton Regional Airports Authority, [2010] A.R. Uned. 679; 2010 ABCA 364, refd to. [para. 10].

Hunka et al. v. Degner et al., [2011] A.R. Uned. 72; 2011 CarswellAlta 472; 2011 ABQB 195, refd to. [para. 10].

Murphy Oil Co. et al. v. Predator Corp. et al. (2002), 319 A.R. 328; 2002 CarswellAlta 867; 2002 ABQB 629, refd to. [para. 10].

364661 Alberta Ltd. v. 735608 Alberta Ltd. (2010), 474 A.R. 151; 479 W.A.C. 151; 2010 ABCA 6, refd to. [para. 10].

Duffy v. Gillespie et al. (1997), 105 O.A.C. 283; 36 O.R.(3d) 443; 155 D.L.R.(4th) 461 (Div. Ct.), dist. [para. 51].

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 7.1 [para. 24].

Authors and Works Noticed:

Moore, Marguerite, Damages and Specific Performance: A Tale of Two Remedies (2011), 2 R.P.R.(5th) 175, generally [para. 9].

Sharpe, R.J., Injunctions and Specific Performance (Looseleaf), paras. 7.200 [para. 35]; 7.440 [para. 36]; 9.120 [para. 34].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2011), Vol. 1, generally [para. 10].

Counsel:

Jack N. Agrios, Q.C., and Janice A. Agrios, Q.C., for Edmonton Flying Club and 1222663 Alberta Ltd., Morningstar Air Express Inc., Morningstar Partners Ltd. and Morningstar Air Corporation;

Kim Fallis-Howell, for the City of Edmonton;

Stephanie A. Wanke and Grant S. Dunlop (Ogilvie LLP), for the Edmonton Regional Airports Authority;

Fred Kozak, Q.C. (RMRF LLP), for Airco Aircraft Charters Ltd.;

Stephen Livingstone (McLennan Ross LLP), for Shell Canada Limited and Shell Canada OP Inc.

This application was heard on June 27, July 30, and August 3, 9 and 10, 2012, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on September 13, 2012.