Federal Court Decisions

T-1776-96

B E T W E E N:

PETER G. WHITE MANAGEMENT LTD.

Applicant

- and -

HER MAJESTY THE QUEEN IN RIGHT OF

CANADA AS REPRESENTED BY THE MINISTER

OF CANADIAN HERITAGE AND THE

SUPERINTENDENT BANFF NATIONAL PARK

Respondents

REASONS FOR ORDER

CAMPBELL J.

Since 1950, Mount Norquay Chairlift, also known as the North American Chairlift, ("the Chairlift") has been a popular sight-seeing attraction at Banff National Park. However, since December 1990 the Chairlift has not been in summer operation. On June 18, 1996, Mr. Peter G. White, Chairman and CEO of the applicant, which carries on business as "Banff Mount Norquay" applied to Mr. Charlie Zinkan, the Superintendent of Banff National Park ("the Superintendent") for a licence to resume summer operations of the Chairlift. On July 2, 1996 the Superintendent denied this application. The question is: Did the Superintendent exceed his jurisdiction in making this decision?

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FACTUAL BACKGROUND

There is no dispute about the factual background leading to the Superintendent's denial.

On June 30, 1995, Banff Mount Norquay purchased the assets of the Mount Norquay and Mystic Ridge Ski Area from the Banff Norquay Ski Corporation, and in August 1995 took an assignment of the Crown lease of the land upon which the Chairlift operations have been carried out since 1948.1

The history of the lease is important as it has as a principal feature a long range environmental plan which was announced in 1989. The long range plan was precipitated in 1988 by Banff Lifts Ltd., the operator of the Chairlift at that time, proposing a "Plan for the Improvement and Expansion of Mount Norquay Ski Area". This submission resulted in an Initial Environmental Evaluation of the plan prepared by the Canadian Parks Service which incorporated public consultation, and which in turn resulted in the announcement of a long range plan coined "Long Range Plan, Mount Norquay Ski Area, Banff National Park" (the "LRP"). The Minister of the Environment at the time, the Honourable Lucien Bouchard, in the introduction to the plan made the following statement:

This plan outlines the decisions that will guide the future of the Mount Norquay ski area. It will ensure the environmentally sound development of that area, as well as provide increased opportunities for use and contribute to the regional economy.2

There is no dispute about the fact that the LRP does not have the force of law but is only a guide to future development, but as such, I find that the LRP is a statement of government policy against which applications such as that of Banff Mount Norquay's would be judged. In this respect, the opening paragraphs of the LRP are important:

This plan specifies the land area which may be used for skiing and associated purposes and the related facilities, uses and operating procedures that are approved in principle for the Mount Norquay Ski Area by the Minister of Environment. The plan will become an Appendix to the lease for the Mount Norquay Ski Area. This plan is based on the "Plan for the Improvement and Expansion of Mount Norquay Ski Area" submitted by the Initial Environmental Evaluation of that plan prepared by the Canadian Parks Service. Input from a public consultation program conducted in October and November 1988 is incorporated.

This plan presents area development components at a conceptual level. More detailed proposals for each aspect of its implementation will be required prior to the construction stage. Approval to proceed with implementation of any aspect of this plan will only be granted once more detailed submissions have been reviewed by the Canadian Parks Service and it has been determined through the Environmental Assessment and Review Process (EARP), that the development can be accomplished without significant impacts to park resources or other park visitor groups. The ski area operator will be responsible for undertaking environmental investigations and preparing environmental assessments, as directed by the Park Superintendent.

Prior to initiation of construction, a letter of credit will be required to ensure the project, and all associated rehabilitation, is completed in a timely manner and to a standard acceptable to the Park Superintendent. Implementation must not necessitate additional developments, beyond those foreseen in this planning process and approved in this plan.3

[Emphasis added]

The Chairlift is the means by which people may be transported from the base of the Chairlift at the bottom of Mount Norquay, to the Cliff House restaurant which is 396 vertical meters up the side of the mountain. The LRP says the following about the "Cliff House and Area":

The Cliff House may continue to be operated in the winter in the current location. The natural environment around the Cliff House had suffered from heavy use over the years, and must be rehabilitated at the owner's expense. Auxiliary structures (e.g. wishing well), no longer required, will be removed. All utility lines, including sewage, to this facility must be buried. The commercial summer use of the gondola and Cliff House will be discontinued by the operator by December 31, 1990.4

While the just quoted passage speaks specifically about winter use of the Cliff House, no mention is made of summer use except that it was to be "discontinued by the operator by December 31, 1990". In addition, the lease, dated May 21, 1993 being some four years after the LRP was announced, which was assigned to Banff Mount Norquay in August 1995, does not include any reference to the LRP as apparently intended. Whether this was by design or oversight was not proved.

Regarding the consent of Banff Lifts Ltd. to discontinue summer operations of the Chairlift in 1990, in a letter written on June 27, 1996 the President of that company gave the following explanation:

The first thing that must be pointed out is that the long range plan was not a decision imposed upon Mt. Norquay by Parks Canada. After a great deal of discussion and negotiation, we realized that we had to make some concessions in our overall operations if we were to be able to convince Parks Canada of our need to expand the winter ski operations. Parks Canada was very worried about overall impacts on the area. The only way we could advance our ski area proposal was to promise a reduction of impact on environmentally sensitive areas like Widow-Maker and the area around Cliff House. This could only be done by sacrificing our summer operations. The assertion that giving up summer use was simply a business decision we made independent of Parks Canada demands is misleading. We had to give something in order to get the additional terrain we needed for our expanded winter operation. Summer use was all we had to trade.5

Respecting the Chairlift, Banff Mount Norquay contends that the lease which they hold, which does not contain any reference to the LRP, provides rights which are paramount to the provisions of the LRP. The lease provisions upon which Banff Mount Norquay relies in taking this position are found in the grant and the covenants. The grant is as follows:

"WITNESS that in consideration of the rents, covenants, and agreements herein reserved and contained on the part of the Lessee to be paid, observed, performed and kept, Her Majesty demises and leases unto the Lessee all that certain parcel or tract of land and premises situate, lying and being in Banff National Park, in the Province of Alberta, and being composed of:

The whole of Parcel EY in Banff National Park in the Province of Alberta, as said parcel is shown on a plan of survey number 74099 in the Canada Lands Surveys Records at Ottawa, a copy of which is deposited in the Land Titles Office for the South Alberta Land Registration District at Calgary under number 9210231,

hereinafter called "the land".6

Of the forty-two covenants and agreements in the lease, the important one from Banff Mount Norquay's point of view is the following:

THE PARTIES COVENANT AND AGREE AS FOLLOWS:

1.      The Lessee acknowledges, agrees and it is a condition upon which this lease is granted that the land will be used only for the purpose of the following activities:

(A)      WINTER: operating ski lifts, tows and conveyances, retail stores, restaurant, coffee shop, equipment rental and ski school;

(B)      SUMMER: operating a sight-seeing conveyance, retail stores, restaurant and coffee shop;

(C)      any associated facilities and services which the Superintendent may approve....7

[Emphasis added]

By the admissions contained in their application for the Chairlift licence, Banff Mount Norquay purchased the Mount Norquay Ski Area assets and took the assignment of the lease with full knowledge of the conflict between the terms of the lease and the provisions of the LRP. This is evident from the following submission contained in the application for the licence:

In 1988 the operator of Mount Norquay was Banff Lifts Ltd., which also operates the Sulphur Mountain Gondola, a year-round sight-seeing business. Over time, Banff Lifts Ltd. had concluded that it would be more beneficial to their overall summer business if there were no summer operations at Mount Norquay, and all such business in the Banff area were concentrated at and restricted to Sulphur Mountain. Therefore in their original submission to the Canadian Parks Service in 1988 entitled "Plan for the Improvement and Expansion of Mount Norquay Ski Area", Banff Lifts Ltd. proposed that the summer operation of Mount Norquay's Norquay Chairlift (also known as the North American Chairlift), which had been a popular fixture in Banff National Park since 1950, be discontinued. This proposal was eventually incorporated into the LRP in the sentence quoted in the previous paragraph.

The logical inference is that this was a business decision, not motivated by environmental or other considerations, and that the proposal to discontinue summer operations at Mount Norquay arose strictly from the particular business circumstances of the then operator, which also owned a larger competing summer-time business. It is virtually certain that a different operator, with no such conflicting considerations, would never have proposed discontinuing such an important and popular element of the business as summer sight-seeing operations in Banff National Park -- especially since the view from the Cliff House is the most spectacular in the Banff area, if not in the entire park.

Therefore the most reasonable interpretation of the sentence quoted from Section 4.3 of the LRP is that merely a statement of business intent by the then operator -- note the use of the word "commercial", and the use of the word "will" rather than "must". It was not, and cannot be, a binding commitment that can be interpreted to prevent a future operator from conducting summer operations that are clearly permitted under the terms of the Lease (see below). If such were the case, the relevant terms of the Lease would have had to be altered to conform to Section 4.3 of the LRP, and this was never done. It therefore remains open to the operator of Mount Norquay to elect to resume such summer operations as are permitted under the clear terms of the Lease.8

The purchase, therefore, included a calculated risk the extent of which is being tested by this application.

In maintaining its position respecting the lease, immediately after the acquisition Banff Mount Norquay started to impress upon the Superintendent that it expected to commence summer operation of the Chairlift.9

After seven months of intensive discussions, by a letter dated May 15, 1996 addressed to Mr. White of Banff Mount Norquay, the following position was taken by Ms. Donna Petrachenko, Regional Executive Director, Ministry of Canadian Heritage, Alberta Region:

It is important to realize that a Parks Canada lease is subject to the provisions of the National Parks Act and the regulations made thereunder. In this regard, notwithstanding the wording of your lease, summer operations at the ski hill would have to be authorized in your business licence issued pursuant to the National Parks Business Regulations. In addition, from the information in your letter, it appears that a building permit (under section 5 of the National Park Building Regulations) and/or an excavation permit (under section 12 of the National Park General Regulations) may be required to adapt your existing facilities for summer use. In turn, this may trigger the environmental assessment process (under the Canadian Environmental Assessment Act) to determine the potential impacts of any physical changes to your facilities, as well as the proposed types and levels of use.

Prior to the issuance of the aforementioned licences and permits, Parks Canada would have to review your proposal to ensure that all regulatory and policy requirements have been met.10

As a result of this position, after further correspondence and discussions,11 an application for a business licence was filed by Banff Mount Norquay on June 18, 1996.

By a letter dated July 2, 1996, Banff Mount Norquay received the Superintendent's decision not to issue a business licence. The contents of this letter are as follows:

Dear Mr. White:

Further to my June 12, 1996 letter to you, I must emphasize that your lease as clarified by clauses 12a and 12b, is subject to the provisions of the National Parks Act and the regulations made thereunder. Accordingly, your June 18, 1996 business license application for summer use of the lift and the Cliff House at Banff-Mount Norquay has been reviewed according to the obligations and criteria specified under section 5(1) of the National Parks Business Regulations. Specifically, it was examined with respect to the effects of the business on:

a) the natural and cultural resources of the park;

b) the safety, health and environment of persons visiting or residing in the park,

c) the safety and health of persons availing themselves of the goods and services offered by the businesses; and

d) the preservation, control and management in the park

In exercising my discretion under this regulation, I have come to the conclusion that a business license for summer use of the lift on the Banff-Mount Norquay cannot be issued due to concerns with section 5(1). Specifically the reasons are:

"from the information available to me, I am satisfied that increased human activity in the lower Bow Valley, including the area you covered in your application, will have detrimental, cumulative impacts upon the environment;

"National Park policy directs that "commercial alpine skiing areas will be managed within their legislated boundaries according to long range development plans approved by the Minister and subject to public consultations" (Parks Canada Guiding Principles and Operations Policies 5.2.2 ). Long Range Plans are critical tools for the management and control of ski areas within the park, and represent a departmental commitment. Issuance of a license for summer use of the lift would be contrary to both policy and the approved Long Range Plan. Strong public concern about activities contrary to this plan, and with the integrity of the process whereby such plans are amended have become apparent.

Please do not hesitate to call me if you have any questions.

Sincerely,

Charlie Zinkan

Superintendent"12

Following this denial, Banff Mount Norquay made an attempt to gain a licence by proposing a negotiated settlement involving "a draft experimental design and behavioral ecology study that would form the basis for a limited summer use and environmental monitoring program at Banff Mount Norquay". Although this proposal impressed the Superintendent, it was rejected by the Minister.13

ANALYSIS

A. Which decision is under review and on what grounds?

As required by Rule 1602(4) of the Federal Court Rules, only a single decision is capable of being reviewed in this application. Banff Mount Norquay has characterized the process and rejection which followed the July 2, 1996 decision of the Superintendent as a reconsideration of that decision. I do not agree with this assessment. It is clear to me that the decision of July 2, 1996 concluded the regulatory requirements the Superintendent had to meet and what followed was a very different initiative, being a negotiation very much at the political level to see if there was another way to allow the summer operation of the Chairlift sought by Banff Mount Norquay. Therefore, I find that the Minister's decision is a separate decision from that delivered on July 2, 1996. Accordingly, I find that the only decision which is properly under review in this application is that of July 2, 1996, and the only evidence which should properly be considered is that which arose prior to it.

Banff Mount Norquay argues that the Superintendent exceeded his jurisdiction in refusing to issue the licence, and also breached the duty of fairness owed in the process of making this decision.14

B. What does the lease convey?

Banff Mount Norquay argues that by the covenants the lease conveys rights to it, whereas the Superintendent argues that the lease conveys no rights but casts obligations. The grant in the lease above quoted clearly conveys a right to use of the land defined in the lease, but "in consideration of the rents, covenants, and agreements" in the lease. The "covenants and agreements" of the lease set up a situation where, by clause 1, Banff Mount Norquay can only use the land for specific limited purposes, one of them being the summer operation of a "sight-seeing conveyance" which is the Chairlift, but subject to other agreements provided in the lease, the most important here being the agreement to obtain a licence pursuant to clause 12, which reads as follows:

"The Lessee will:

(a)      obtain all licences required by the Regulations made pursuant to the National Parks Action;(sic) and

(b)      comply with the provisions of the National Parks Act and of all other statutes that relate hereto, and with the Regulations made pursuant to such statutes, as they may be amended, revised or substituted from time to time; and

(c)      endeavour to provide services to the public in both official languages of Canada, and will ensure that signs, notices and printed materials used for the purpose of informing the public are written in both official languages, and will obtain the approval of the Superintendent prior to their being displayed or distributed."

The Regulations referred to in clause 12 of the lease are those contained in the National Parks Business Regulations and are as follows:

3. No person shall carry on, in a park, any business unless that person is

(a) the holder of a licence to carry on that business; or

(b) an employee of the holder of a licence to carry on that business.

4. (1) The superintendent may, on application, issue to any person a licence to carry on the business indicated in the application.

(2) An application referred to in subsection (1) shall be made by the applicant in person, or by an agent authorized in writing to act on behalf of the applicant, at the office of the superintendent, in the form determined by the superintendent, and shall contain

(a) the name, address and telephone number of the applicant;

(b) the types of goods and services that the applicant proposes to offer in the business;

(c) the types of equipment that the applicant proposes to use in the business;

(d) the address, if any, at which, or a description of the area in the park in which, the applicant proposes to carry on the business;

(e) a copy of any documentation that demonstrates the applicant's qualifications to carry on the business; and

(f) in the case of an application for a licence to carry on a guiding business, a summary of the education, skills and experience that qualify the applicant and each of the applicant's employees to carry on the business safely.

5. (1) The superintendent shall, before issuing a licence to carry on the business referred to in an application and in order to determine the terms and conditions to be specified in the licence, take into account the effects of the business on

(a) the natural and cultural resources of the park;

(b) the safety, health and enjoyment of persons visiting or residing in the park;

(c) the safety and health of persons availing themselves of the goods or services offered by the business; and

(d) the preservation, control and management of the park.

(2) The superintendent shall set out in a licence

(a) the types of goods and services that will be offered by the business; and

(b) the address, if any, at which, or a description of the area in the park in which, the business is to be carried on.

(3) The superintendent may, in addition to the requirements set out in subsection (2), set out in a licence, terms and conditions in respect of the business, that specify

(a) the hours of operation;

(b) the equipment that shall be used;

(c) the health, safety, fire prevention and environmental protection requirements; and

(d) any other matter that is necessary for the preservation, control and management of the park.

(4) Every licensee shall comply with the terms and conditions set out in the licence.

[Emphasis added]

Considering the provisions in the lease and considering the regulations just quoted, I find that what has been conveyed to Banff Mount Norquay is a very restricted contingent right to operate a business on the lands leased. That is, the right to use the land for very limited purposes as provided in the covenant is contingent upon a licence being issued under s.5 of the Regulations.

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C. What is the extent of the discretion provided to the Superintendent under the licensing provisions?

The words of s.4 and s.5 read together give a very broad discretion to the Superintendent to limit business being conducted within the National Park under his or her authority. In particular, s.5(1)(d) on the face of it allows the kind of decision making that has occurred in this case. That is, it appears sufficiently broad to act as a restraint on the operation of any business being conducted within a National Park, with or without a lease of land from the Crown.

Banff Mount Norquay, however, has argued that because of the precise wording of s.26 of the Regulations, the Superintendent does not have discretion to grant a seasonal lease for the type of use Banff Mount Norquay is requesting. This provision is as follows:

26.(1) The fee payable for a licence to carry on any of the following types of business for one year is

(a) in the case of a business of operating an ice skating rink, where the operator of the rink is

(i) a non-profit organization, $6.00 or

(ii) not a non-profit organization, $60.00

(b) in the case of a business of operating a curling rink, $6.00

(c) in the case of a business of operating a cable or rope lift for the conveyance of persons, $6.00; and

(d) in the case of a business of providing downhill or cross-country ski instruction, $6.00

(2) The fee payable for a licence to hold a special event is

(a) where the special event is held for profit, $150.00 per day; or

(b) where the special event is not held for profit, $30.00 per special event

(3) The fee payable for a licence to hold an auction is $15 for each day during which the auction is held.

[Emphasis added]

As the argument goes, since s.26 only provides that a licence may be issued for one year, the Superintendent is precluded from issuing a seasonal licence which is in effect what he has done by only granting winter use of the lift in question. Banff Mount Norquay says that because of the provisions of s.26 of the Regulations the Superintendent must issue a licence without distinction as to seasonal use.

With respect to s.26, the Superintendent made the following statement in his affidavit:

15. That there is no provision in the Regulations for the issuing of a seasonal business licence for operating a cable or rope lift for the conveyance of persons. Where summer operations of these conveyances have been permitted, they have been associated with the summer operation of restaurants and hotels for which seasonal business licences are provided for in the regulations. In each case where licences have been issued for summer use, that issue has been consistent with the long range plan for the particular ski area or continuing traditional use.15

I think that the Superintendent's approach to interpreting the licensing provisions in the Regulations to carry out the discretion which he has is useful, reasonable, and allowed. I do not think that the wording of s.26, which is a minor licensing provision for the collection of insignificant fees of as little as $6.00, can act as a restraint on a Superintendent's discretion provided in s.4. I think that a licence could be issued for the period of one year as provided under s.26 for the operation of "a cable or rope lift" but could nevertheless contain a condition for seasonal use set out under the authority of s.5(3)(d). At the yearly fee of $6.00 a hardship would hardly result in such a condition being imposed.

I find that there is nothing before me to allow me to conclude that this regulatory scheme has not been constructed to be used as it has, and accordingly, I find that the Superintendent's discretion extends to include the making of the July 2, 1996 decision.

D. Was the discretion to deny the issuance of a licence properly exercised by the Superintendent?

Banff Mount Norquay's argument on this issue is that in exercising the discretion provided under s.4 of the Regulations, the Superintendent is bound to give substantial weight to the rights of Banff Mount Norquay under the lease. In this respect Banff Mount Norquay argues its vested private rights under the lease are not to be impaired in the absence of clear direction from the Legislature. Accordingly, it is argued that the Superintendent cannot have regard to such considerations as a long range plan if such considerations fetter his discretion. That is, the Superintendent must consider all other factors and among these the property rights of Banff Mount Norquay should prevail.

The criteria that the Superintendent is obliged to consider under s.5 of the Regulations do not specifically include those emphasized by Banff Mount Norquay in its argument. However, there is no doubt that the legal position of the Banff Mount Norquay and its business operations are factors which must be taken into consideration. But, as to the weight to be given to these factors, there is also no doubt that each case turns on its own merits.

During the course of the hearing, counsel for Banff Mount Norquay admitted that when Banff Mount Norquay purchased the business in 1995 it was well aware of the historical context. This is readily apparent from the content of the application for a licence as quoted above. Thus, this is not a case of restricting the business operations of an individual who simply applied in a given year for a usual business licence, and instead had the application rejected or received one with certain imposed conditions. This is a case where Banff Mount Norquay purchased a business which it well knew existed inside a context of very strong environmental concerns and stringent regulation. Indeed, Banff Mount Norquay purchased a business which, for the reasons above outlined, had not been operating the Chairlift in the summer for some six years. Accordingly, what it purchased was a very restricted contingent right to operate a business which was also significantly curtailed when it took over the lease. Banff Mount Norquay, nevertheless, proceeded to purchase the business on the legal advice that its rights under the lease could be enforced to obtain a licence.

Against this background, when in September 1995 Banff Mount Norquay first raised its intention to proceed with the summer use of the Chairlift, it did so in a way which was certainly capable of causing an abrupt negative response on the part of the Superintendent if his sole intention was to follow government policy and not to consider the merits of the application. Instead of this type of response, the Superintendent took a very measured and thoughtful approach between the time that the issue of summer use was first raised in the fall of 1995 to his decision being rendered on July 2, 1996. It is very clear to me that on the basis of his affidavit evidence, the Superintendent did a very thorough investigation of the facts involved in the proposed application and also gave ample opportunity to Banff Mount Norquay to make representations as to why the summer use should be licensed.

Regarding the gathering of evidence upon which he acted in reaching his decision, not only did the Superintendent receive numerous representations from Banff Mount Norquay presenting strong arguments in favour of issuing a licence, he considered the plans for Mt. Norquay and the surrounding area, consulted with a wide range of individuals, and indeed, visited the site himself in the course of his deliberations.16

The approach the Superintendent adopted and the degree of investigation he undertook indicates that he intended to and did consider all the factors involved in the summer use proposal, including Banff Mount Norquay's rights under the lease, and not just the LRP policy considerations. Thus, I find that not only did the Superintendent have the discretion to grant the licence, but he believed he had an unfettered discretion to grant the licence. I am completely satisfied that the Superintendent sincerely conducted an extensive analysis of the evidence and the issues and in no way fettered his discretion. Accordingly, I find that the discretion to issue the licence was properly exercised.

E. What procedural fairness was owed to Banff Mount Norquay?

The Supreme Court of Canada in Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643 stated at 653:

This Court has affirmed that there is a general common law principle, a duty of procedural fairness lying in every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual.

Using this principle as the starting point, the content and extent of the duty of procedural fairness varies with the interests affected and the type of decision being made.

In this case, Banff Mount Norquay was applying for a licence to operate a business which has not operated since 1990. The case of McInnes v. Onslow-Fane, [1978] 1 W.L.R. 1520 (Ch. Div) at 1529 provides some guidelines with respect to the extent of procedural fairness required in application cases:

First, there are what may be called forfeiture cases. In these, there is a decision which takes away some existing right or position, as where a member of an organization is expelled or a licence is revoked. Second, at the other extreme there are what may be called the application cases. These are cases where the decision merely refused to grant the applicant the right or position that he seeks, such as membership of an organization, or a licence to do certain acts. Third, there is an intermediate category, which may be called expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted. This head includes cases where an existing licence-holder applies for a renewal of his licence, or a person already elected or appointed to some position seeks confirmation from some confirming authority. [Citations omitted]

McInnes was adopted by the Alberta Court of Queen's Bench, in Cardinal v. Alberta (Minister of Forestry, Lands and Wildlife), [1988] A.J. No. 114 (Q.B), where the applicant was seeking judicial review of a decision not to grant her a trapping licence, even though she was previously a junior trapper to a licence belonging to her cousin. In determining that minimal procedural fairness is required, the court placed emphasis on the fact that there was nothing being taken away from the applicant, and therefore there was no expectation to receive a licence.

In Hutfield v. Fort Saskatchewan General Hospital, [1986] A.J. No. 1152, (Q.B.) the Alberta Court of Queen's Bench also dealt with the issue of the issuance of a licence. In that case, the applicant, a physician, sought judicial review of a decision of the Hospital refusing his application. In setting aside the decision of the Hospital, the Court also relied on McInnes, but distinguished it on the basis that if the refusal to grant a licence casts a slur on the applicant's reputation, more procedural fairness is owed.

In summary, the jurisprudence to date indicates that minimal procedural fairness is owed in situations where an individual is applying for a licence, for which there is no "expectation" to receive the licence, unless the failure to receive one casts a slur on the applicant's professional reputation. In these cases, "expectation" merely amounts to the fact that the person previously held a licence. More recently, the Supreme Court of Canada in Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 held at 557 to 558 that with respect to "legitimate expectation":

There is no support in Canadian or English cases for the position that the doctrine of legitimate expectations can create substantive rights. It is a part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can create the right to make representations or to be consulted. It does not fetter the decision following the representations or consultations.

In the case at bar, Banff Mount Norquay states that the "expectation" to receive a licence arises from the lease itself. Because of this "expectation", Banff Mount Norquay argues that the content of fairness must be higher than was accorded. However, I find that, given the history relating to summer use of the Chairlift and the terms of the lease itself, Banff Mount Norquay's "expectation" was highly speculative. Accordingly, I find that in this case the procedural fairness requirements under the Regulations is low.

F. Did the Superintendent discharge the duty of fairness owed to Banff Mount Norquay?

Banff Mount Norquay has argued that because it was not given an opportunity to respond to some of the concerns expressed by individuals consulted by the Superintendent in the course of his investigation, there was a breach of the duty of fairness owed. However, given the extensive consultation and opportunity for representations and argument provided, and given the extensive knowledge that all parties had of the competing concerns to be taken into consideration in the decision making process, I put no weight on this argument. Therefore, I find that the Superintendent discharged the duty owed.

Accordingly, this application is dismissed.

Douglas R. Campbell

Judge

VANCOUVER

May 28, 1997

__________________

     ¹646400 Alberta Ltd. purchased the assets of the Mount Norquay and Mystic Ridge Ski Area from Banff Norquay Ski Corporation on June 30, 1995. The Headlease and the Licence of Occupation, both dated May 21, 1993 (although the term of the Headlease is from April 1, 1992 to March 31, 2027) were assigned without change or conditions from Banff Norquay Ski Corporation to 646400 Alberta Ltd. in August, 1995. Peter G. White Management Ltd. is now the legal name of 646400 Alberta Ltd.

     ²Application Record of the Applicant, p. 50.

     ³Ibid., p. 51.

     ⁴Ibid., p. 56.

     ⁵Letter from Mr. Arthur Haenni, President and General Manager of Banff Lifts Ltd. to Mr. Mike McIvor, Bow Valley Naturalists, Application Record of the Respondent, p. 45.

     ⁶Application Record of the Applicant, p. 18.

     ⁷Ibid., p. 21.

     ⁸Ibid., p. 83.

     ⁹The affidavits of Mr. White (Application Record of the Applicant, pp. 8 - 17), and Mr. Zinkan (Application Record of the Respondent, pp. 1 - 15), set out the critical contact regarding this position, a précis of which follows in this footnote and footnotes 11 and 13:
On August 22, 1995, Mr. Zinkan met with Mr. White and informed him that the LRP did not provide for the summer use of the Chairlift and Cliff House restaurant, and Mr. Zinkan provided Mr. White with a copy of the LRP.
On September 28, 1995, the officers of Banff Mount Norquay met with the Superintendents of Banff National Park, Mr. Charlie Zinkan and Mr. Mike McKnight and informed them of the corporation's intention to carry out its summer operations under the terms of its lease in the summer of 1996. A letter was sent by Mr. White of Banff Mount Norquay to Mr. Zinkan reconfirming his intention to carry out summer operations.
The words used in this letter of October 26, 1995, convey the approach adopted by Banff Mount Norquay and are as follows:As a follow-up to our meeting of September 28, 1995, I am confirming that we intend to operate the North American gondola next summer as a sight-seeing conveyance, as has been done for many past summers prior to 1990. (Application Record of the Applicant, p. 66.)
On December 20, 1995, Mr. Zinkan sent Banff Mount Norquay a letter, mentioning that summer operations are controversial. In particular, Mr. Zinkan mentioned that due to the Banff Bow Valley Study, a regional plan for the area in which Mount Norquay is situated, public perceptions of commercial development in the park and previous commitments made within the ski area long range plan, a number of opinions were needed before Banff Mount Norquay would be allowed to open its summer operations.
On February 6, 1996, Mr. White wrote another letter to Mr. Zinkan, explaining that no construction or commercial development was planned. He also pointed out that there was strong public approval for growth of recreational tourism in the areas zoned for that purpose, as well as for the creation and preservation of employment.
On February 1, 1996, Mr. White met with Dr. Robert Page of the Banff Bow Valley Study, and with the entire panel of the Study on March 28, 1996, to explain the importance of the rights granted under the lease with the Crown, its legitimate reliance, and Banff Mount Norquay's desire to work with the Study in conducting its summer operations.
Mr. White met with Ms. Donna Petrachenko, Regional Executive Director, Ministry of Canadian Heritage, Alberta Region, on February 26, 1996, to explain the intentions of the corporation regarding operations for the summer of 1996. On April 23, 1996, Ms. Petrachenko wrote to Mr. White proposing a course of action concerning summer operations at Banff Mount Norquay. She indicated to Mr. White that an environmental assessment of the proposal be conducted under the Canadian Environmental Assessment Act. Mr. White provided the details of his summer operations in a letter to Ms. Petrachenko dated May 3, 1996. A further letter was sent on May 7, 1996 suggesting that Parks Canada contact the General Manager of Banff Mount Norquay, Mr. Pat Côté, if they needed any clarification of the plans.

     ¹⁰Letter from Ms. Petrachenko to Mr. White, Application Record of the Applicant, p. 75.

     ¹¹A letter was sent, on May 31, 1996, by Mr. Zinkan to Mr. Côté, requesting information needed to enable him to evaluate the appropriateness of issuing a business licence for the summer operation of the lift.
A meeting took place between Mr. White and Mr. Zinkan on June 7, 1996. At that time, Mr. Zinkan requested the submission of a formal written application for the issuance of a business licence for the summer operation of a sight-seeing conveyance. This letter was followed by another letter, dated June 10, 1996, which was sent to Banff Mount Norquay. In the letter, Mr. Zinkan outlined what needed to be included in the business licence application.

     ¹²Application Record of the Applicant, pp. 96 - 97.

     ¹³Upon receiving the Superintendent's decision of July 2, 1996, Banff Mount Norquay responded with a letter setting out the corporation's legal position and an outline of an alternate proposal. The full proposal was delivered to Ms. Sheila Luey, Acting Superintendent of Banff National Park on July 12, 1996.
On July 17, 1996, Mr. White telephoned Mr. Louis Deschenes, the Executive Assistant to Mr. Tom Lee, Assistant Deputy Minister of the Department of Canadian Heritage. Mr. Deschenes advised Mr. White that the Superintendent and Mr. Lee approved Banff Mount Norquay's summer use proposal. Mr. White was also informed that, notwithstanding the fact that the Superintendent approved the proposal, the final decision would be left to the Minister.
This telephone conversation was confirmed by a fax received on July 19, 1996. The fax stated that the Acting Superintendent, Ms. Luey, and the Superintendent, Mr. Zinkan, approved the alternate proposal.
However, in a telephone conversation on July 23, 1996, Ms. Petrachenko informed Mr. White that the Minister had turned down Banff Mount Norquay's alternate proposal, submitted on July 12, 1996, because of the need to await the report of the Banff Bow Valley Study expected on September 30, 1996. Mr. White then asked Ms. Petrachenko if he could make a presentation to the Minister, to which she responded that she would call Mr. Boutet who was in the Minister's office.
On July 24, 1996, Mr. White received a call from Mr. Boutet and Mr. White explained:1. That Banff Mount Norquay had a clear right under its lease to operate a sight-seeing conveyance in the summer, and while the Superintendent has the right to regulate such operations, he has no right to prohibit them entirely, as it would constitute a unilateral amendment to the lease;
2. That Banff Mount Norquay's proposal contained a provision that its operation would be adjusted, if necessary, to take account of the eventual recommendations of the Banff Bow Valley Study; and
3. That legal proceedings would be commenced against the Superintendent.
Mr. Boutet informed Mr. White that all these points would be brought to the Minister's attention and that the Minister was refusing all proposals relating to Banff until the receipt of the report of the Banff Bow Valley Study expected on September 30, 1996.

     ¹⁴The precise arguments are that the Superintendent exceeded his jurisdiction:
1.      By fettering his discretion or failing to exercise his discretion;
2.      By failing to consider Banff Mount Norquay's rights under the lease for the ski area which had the effect of nullifying its rights under the lease;
3.      By losing jurisdiction by relying on irrelevant considerations such as the Banff Bow Valley Study;
4.      By misinterpreting provisions of the Business Licence Regulations in that the Superintendent thought that Banff Mount Norquay had the right to apply for a licence for summer operations only;
5.      By proceeding in a procedurally unfair manner by failing to give Banff Mount Norquay an adequate opportunity to respond to opinions gathered against Banff Mount Norquay's application for a licence.

     ¹⁵Application Record of the Respondent, p. 7.

     ¹⁶Paragraph 22 of his affidavit is as follows:That the decision not to issue a business licence for the summer operations of Banff Mount Norquay, was made by me in my capacity as Superintendent, following consultations with Mr. White, officers and counsel for the Applicant, several Parks Canada staff including, Mike McKnight, Ski Area Specialist for Banff National Park, Dr. Bruce Leeson, Chief of Environmental Assessment, Jillian Roulet, Acting Manager of the Ecosystem Secretariat, Bill Fisher, Director of Executive Services, Sheila Luey, Public Affairs Officer, Doug Hodgins, Executive Director of the Banff Bow Valley Secretariat, and Jeff Green of the Bow Valley Study Task Force.
On the site visit to the property on May 24, 1996, the Superintendent was accompanied by Mr. Cliff White, Conservation Biologist for Banff National Park, Mr. Trent Harder, Park Development Officer, and Mr. Pat Côté, representing Banff Mount Norquay.