Manitoba Jockey Club Inc. v. Manitoba et al., 2013 MBQB 109

• Judge: Dewar, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 06, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 109;(2013), 290 Man.R.(2d) 232 (QB)

Jockey Club v. Man. (2013), 290 Man.R.(2d) 232 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. MY.014

Manitoba Jockey Club Inc. (applicant) v. The Government of Manitoba, Stan Struthers, Minister of Finance for The Government of Manitoba, The Manitoba Lotteries Corporation, a Crown Corporation appointed under the Criminal Code of Canada and created pursuant to The Manitoba Lotteries Corporation Act of Manitoba, C.C.S.M., c. L-210 and The Horse Racing Commission, created under The Horse Racing Commission Act of Manitoba, C.C.S.M., c. H-90 (respondents)

(CI 13-01-82759; 2013 MBQB 109)

Indexed As: Manitoba Jockey Club Inc. v. Manitoba et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Dewar, J.

May 6, 2013.

Summary:

Manitoba Jockey Club (MJC) owned a racetrack. It had historically received financial assistance from the government through (1) monies generated from the use of video lottery terminals (VLT) that had been placed at the racetrack pursuant to an agreement between MJC and the Manitoba Lotteries Corporation, and (2) payment of monies out of the Pari-Mutuel Levy Fund, a fund established for the promotion of horse racing pursuant to the Pari-Mutuel Levy Act. In 2013, the Minister of Finance advised MJC that he would be reducing funding to the racetrack through the introduction of new and amending legislation. MJC applied for judicial review. MJC sought various prerogative remedies on the grounds that the Minister's decision was contrary to the VLT agreement. MJC also argued that pursuant to the Pari-Mutuel Levy Act, the Minister was obliged to accept the Horse Racing Commission's proposed plan for distribution of the Fund.

The Manitoba Court of Queen's Bench granted an order compelling the Minister to approve the Horse Racing Commission's distribution plan. The court dismissed the remainder of the application.

Administrative Law - Topic 2450

Natural justice - Procedure - Notice - Legitimate expectation of notice doctrine - Manitoba Jockey Club (MJC) owned a racetrack - It had historically received financial assistance from the government through monies generated from the use of video lottery terminals that had been placed at the racetrack pursuant to a 2011 agreement between MJC and the Manitoba Lotteries Corporation (MLC) - Clause 22.05 of the agreement stated that MJC and MLC would negotiate a long-term agreement, and the terms of the 2011 agreement would continue to apply until the long-term agreement had been negotiated - In January 2013, the Minister of Finance wrote to advise MJC that he would be reducing funding to the racetrack - The Minister intended to put a bill before the legislature that would authorize MLC to avoid some or all of its current obligations arising from the 2011 agreement - MJC argued that by virtue of clause 22.05, it had a legitimate expectation that the government would not curtail any funding without first engaging in negotiations with MJC - MJC sought certiorari, prohibition and mandamus - The Manitoba Court of Queen's Bench held that the Minister was entitled to lay a bill before the legislature that changed the government's course in either taxation or spending, including legislation that authorized a breach of a government contract - MJC therefore could not have an enforceable legitimate expectation that the Minister would never attempt to avoid a contractual commitment through legislative action - Further, if MJC's legitimate expectations were capable of enforcement at all, it was through a cause of action in contract, not through prerogative remedies - See paragraphs 33 to 36.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See Administrative Law - Topic 5003 ].

Administrative Law - Topic 3205.2

Judicial review - General - Governmental action - [See Administrative Law - Topic 2450 , Administrative Law - Topic 5024 and Administrative Law - Topic 6411 ].

Administrative Law - Topic 3214

Judicial review - General - Remedies - [See Administrative Law - Topic 2450 ].

Administrative Law - Topic 5003

Judicial review - Certiorari - When available to the parties - Manitoba Jockey Club (MJC) owned a racetrack - It had historically received financial assistance from the government through monies generated from the use of video lottery terminals (VLT) that had been placed at the racetrack pursuant to a 2011 agreement between MJC and the Manitoba Lotteries Corporation (MLC) - Clause 22.05 of the agreement stated that MJC and MLC would negotiate a long-term agreement, and the terms of the 2011 agreement would continue to apply until the long-term agreement had been negotiated - In January 2013, the Minister of Finance wrote to advise MJC that he would be reducing funding to the racetrack - MJC applied for certiorari, arguing that the Minister's decision was contrary to clause 22.05 - The Manitoba Court of Queen's Bench held that the Minister had not made any decision that attracted certiorari - Certiorari was available to restrict a minister's public law duty or power - The obligation, if any, owing to MJC respecting the VLT revenues was at best a private law duty arising from the 2011 agreement - Further, the Minister's letter and subsequent discussions were strictly a statement of the province's intention and not a decision that attracted judicial review - See paragraphs 23 and 24.

Administrative Law - Topic 5024

Judicial review - Certiorari - Grounds for granting certiorari - Consideration of irrelevant matter - Manitoba Jockey Club (MJC) owned a racetrack - It had historically received financial assistance from the government through the payment of monies out of the Pari-Mutuel Levy Fund, a fund established for the promotion of horse racing pursuant to the Pari-Mutuel Levy Act - Section 15(1) of the Act required the Horse Racing Commission (HRC) to put forward a plan for distribution of the Fund for the following fiscal year by December 31 and submit it to the Minister - In December 2012, the HRC put forward a plan which recommended that a significant portion of the Fund be paid to MJC in the way of purse support for the April 2013 to March 2014 fiscal year - The Minister of Finance did not approve the plan - In January 2013, the Minister advised MJC that he would be reducing funding to the racetrack through the introduction of amending legislation - MJC applied for judicial review, arguing that the Minister was obliged to accept the HRC proposal - The respondents argued that the Minister was not obliged to make a decision respecting the plan at least until the amending legislation was passed - The Manitoba Court of Queen's Bench agreed with MJC - It was significant that the Fund did not consist of public monies and the province had no proprietary interest in them (s. 34) - The Act did not specify a time frame by which the Minister had to decide whether to approve the plan and was silent as to what would happen if the Minister did not approve the plan - However, the notion that the Minister would make a decision before the beginning of the next fiscal year was implied by s. 15(1) - The failure of the Minister to decide by March 31 would be unfair to those who were seeking the financial support, especially when they were providing a service consistent with the objectives of the legislation - The Minister's failure to approve the plan was dictated by his desire to change the Act to reduce the availability of funding for the horse racing industry - This was not consistent with his obligations as they were currently articulated under the Act - Until the Act was amended, the Minister had to act in accordance with the law as it currently stood - His decision was therefore based upon an improper and irrelevant consideration - Consequently, the Minister had made a reviewable decision or had lost his opportunity to consider the HRC plan within the time frame contemplated by the legislation - The court was entitled to make a decision that filled the void in the legislation - The court granted an order compelling the Minister to approve the HRC plan - See paragraphs 41 to 67.

Administrative Law - Topic 5104

Judicial review - Certiorari - Conditions precedent - Requirement of decision or finality of decision - [See Administrative Law - Topic 5003 ].

Administrative Law - Topic 6411

Judicial review - Prohibition - General principles - When remedy not available - Manitoba Jockey Club (MJC) owned a racetrack - It had historically received financial assistance from the government through monies generated from the use of video lottery terminals that had been placed at the racetrack pursuant to a 2011 agreement between MJC and the Manitoba Lotteries Corporation (MLC) - Clause 22.05 of the agreement stated that MJC and MLC would negotiate a long-term agreement, and the terms of the 2011 agreement would continue to apply until the long-term agreement had been negotiated - In January 2013, the Minister of Finance wrote to advise MJC that he would be reducing funding to the racetrack - The Minister intended to put a bill before the legislature that would authorize MLC to avoid some or all of its current obligations arising from the 2011 agreement - MJC argued that the Minister's decision was contrary to clause 22.05 and applied for an order of prohibition - The Manitoba Court of Queen's Bench held that an order of prohibition would be inappropriate - To suggest otherwise would be to conclude that a minister would never be entitled to put before the legislature any bill that purported to disclaim a government contract - That conclusion was contrary to the principle that the legislature could pass any law that it wanted so long as it had jurisdiction and the law did not contravene the Charter - If MJC had any rights, none would be trampled until the bill was passed - See paragraph 25.

Administrative Law - Topic 6463

Judicial review - Prohibition - Conditions precedent - Requirement of adverse effect on applicant - [See Administrative Law - Topic 6411 ].

Crown - Topic 679

Authority of Ministers - Exercise of - Financing powers - [See Administrative Law - Topic 2450 ].

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative or policy decisions - Appeals or judicial review - [See Administrative Law - Topic 5024 and Administrative Law - Topic 6411 ].

Crown - Topic 1250

Contracts with Crown - Breach by the Crown - Judicial review - [See Administrative Law - Topic 2450 ].

Cases Noticed:

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 25].

Byl et al. v. Ontario (2003), 175 O.A.C. 171; 67 O.R.(3d) 588 (Div. Ct.), dist. [para. 26].

Hayes et al. v. British Columbia (Minister of Labour) et al., [2000] B.C.T.C. 904; 2000 BCSC 1665, refd to. [para. 33].

Manitoba Métis Federation Inc. v. Canada (Attorney General) (2013), 441 N.R. 209; 2013 SCC 14, refd to. [para. 39].

Statutes Noticed:

Pari-Mutuel Levy Act, S.M. 1996, c. 44; C.C.S.M., c. P-12, sect. 15(1) [para. 55]; sect. 34 [para. 51].

Authors and Works Noticed:

Brown, Donald J., and Evans, John, Judicial Review of Administrative Action in Canada, sect. 1:1200 [para. 23].

Counsel:

Jeffrey R.W. Rath and David Khan, for the applicant;

Denis G. Guénette and Sean D. Boyd, for the respondents, The Government of Manitoba, Stan Struthers, Minister of Finance for the Government of Manitoba and The Manitoba Lotteries Corp.;

No appearance on behalf of the Horse Racing Commission.

This application for judicial review was heard before Dewar, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on May 6, 2013.