Federal Court of Appeal Decisions

Date: 20040427

Docket: A-245-03

Citation: 2004 FCA 166

CORAM:        ROTHSTEIN J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                              PARKS CANADA,

                           SHEILA COPPS, MINISTER OF CANADIAN HERITAGE,

                           THE SUPERINTENDENT, BANFF NATIONAL PARK; and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                          Appellants

                                                                           and

                                           SUNSHINE VILLAGE CORPORATION

                                                                                                                                        Respondent

                                        Heard at Edmonton, Alberta, on March 25, 2004.

                                                                             

REASONS FOR JUDGMENT BY:                                                                         ROTHSTEIN J.A.

CONCURRED IN BY:                                                                                              SHARLOW J.A.

                                                                                                                                    MALONE J.A.

Date: 20040427

Docket: A-245-03

Citation: 2004 FCA 166

CORAM:        ROTHSTEIN J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                              PARKS CANADA,

                           SHEILA COPPS, MINISTER OF CANADIAN HERITAGE,

                           THE SUPERINTENDENT, BANFF NATIONAL PARK; and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                          Appellants

                                                                           and

                                           SUNSHINE VILLAGE CORPORATION

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

ROTHSTEIN J.A.

ISSUE

[1]                The issue in this appeal from the Trial Division (as it then was) is whether the Governor in Council may, under a general power to set building permit fees conferred on it by Parliament in the Canada National Parks Act, S.C. 2000, c. 32 (the Act), set different fees for different national parks.

POSITION OF THE APPELLANTS AND RESPONDENT

[2]                The appellants say the unrestricted power to set fees by regulation permits different fees to be set for different parks. The respondent says that the setting of different fees is discriminatory and that, in the absence of express or necessarily implied authority in the enabling statute, the Governor in Council may not promulgate regulations that discriminate by providing for different fees between parks.

FACTS

[3]                The respondent operates a ski area in Banff National Park known as "Sunshine Village." The ski facilities include a gondola, i.e., a lift system that transports skiers from a base facility to an upper village. In December 2000, the respondent applied to Parks Canada for permission to replace and upgrade the gondola. A building permit was issued by the Superintendent of Banff National Park on June 27, 2001.

[4]                The National Parks Building Regulations, C.R.C., c. 1114, as amended by SOR/96-427 (the Regulations) provide that, in Banff and Jasper National Parks, the fees for a building permit are calculated at a rate of $7 per $1,000 of the estimated value of a building or structure while, in all other national parks, the rate is $5 per $1,000. Accordingly, as the estimated value of the gondola was $15 million, the respondent was charged a building permit fee of $105,000.

[5]                The respondent sought judicial review in the Trial Division from the decision of the Superintendent on a number of grounds. The Trial Division Judge held that the gondola was a "building or structure" within the meaning of the Regulations but held that the higher fee charged for building permits in Banff and Jasper National Parks was discriminatory and that such discrimination was not authorized by the Act expressly or by necessary implication. She therefore declared the higher fee ultra vires the Act. Only the discrimination issue was appealed to this Court. I am of the opinion that the Trial Division judge was in error in declaring the higher fee for Banff and Jasper National Parks in the Regulations ultra vires. The appeal therefore should be allowed.

RELEVANT LEGISLATION

[6]                National parks are managed by the Minister of Canadian Heritage, subject to regulations made by the Governor in Council pursuant to section 16 of the Act, the relevant portions of which read as follows:

[7]                Paragraph 5(1)(b) of the Regulations provides that no person shall commence the erection or reconstruction of a building unless he first obtains a permit:

[8]                Subsection 15(1) of the Regulations provides for the fees to be charged for permits. Subsection 15(1) provides:

[9]                Item 1 of Part I of the Schedule sets forth the fees for building permits:

Item    Type of Permit                           Fee ($)            1.        Building permit, per $1,000 or fraction thereof of estimated value         of the building or structure (a) in Banff or Jasper National Park             7.00        (b) in any other park                  5.00

Article Permis                                       Droits ($) 1.          Permis de construction, pour chaque tranche de 1 000$ ou fraction de           celle-ci de la valeur estimative du bâtiment ou de la construction : a) dans les parcs nationaux Banff ou Jasper                                               7 b) dans tout autre parc national              5

ANALYSIS

1. Standard of Review

[10]            The only question in this appeal is whether Item 1(a) of Part I of the Schedule to the Regulations is ultra vires the Act. Reviewing whether subordinate legislation is authorized by its enabling statute does not require application of the pragmatic and functional approach. Rather, the vires of subordinate legislation is always to be reviewed on a correctness standard. See, for analogous circumstances in respect of municipal by-laws, United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 at paragraph 5.

2. Is There Discrimination?

[11]            A threshold question is whether the fixing of different fees for building permits between national parks constitutes discrimination. The appellants say that fixing different fees is not per se discriminatory. Rather, they say the respondent must demonstrate that the circumstances between the parks they wish to compare are similar. I take this to mean that those applying for building permits in the allegedly comparable parks are in competition or, perhaps, that the costs incurred by the Government in respect of the services required in relation to the issuance of the building permits are similar.

[12]            The respondent submits that it need only demonstrate that the Regulations setting different fees apply to the same class, i.e., persons applying for building permits in national parks.

[13]            This is not a case about discrimination under section 15 of the Charter of Rights and Freedoms or under human rights legislation. Rather, it is a case about alleged administrative law discrimination. Administrative law discrimination occurs when "municipal bylaws and other forms of subordinate legislation ... are discriminatory in the sense that they do not apply equally to all those engaged in the activity that is the subject of the enactment" (Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback, 2003) at paragraph 15:3212).

[14]            In view of my disposition of the appeal, it is unnecessary to make a final determination of whether this definition of administrative law discrimination applies to regulations promulgated by the Governor in Council. I will assume, without deciding, that Item 1(a) of Part I of the Schedule to the Regulations, which sets building permit fees in Banff and Jasper National Parks at a rate of $7 per $1,000 of estimated value, as compared to a rate of $5 per $1,000 of estimated value in all other parks, is discriminatory in an administrative law sense.

3. Is Discrimination Prohibited?

[15]            The learned Trial Division Judge relied on municipal law cases to hold that regulations establishing different building permit fees for different parks are ultra vires on the grounds of discrimination. Historically, municipalities had been unable to enact discriminatory by-laws in the absence of expressly or necessarily or fairly implied authorization in their governing statute. As Iacobucci J. stated in R. v. Sharma, [1993] 1 S.C.R. 650 at 668:

The rule against discriminatory by-laws is an outgrowth of the principle that, as statutory bodies municipalities "may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation" (Makuch, Canadian Municipal and Planing Law (1983), at p. 115).

[16]            This approach to interpreting municipal by-laws was concomitant with the practice of provinces granting municipalities specific powers in particular subject areas, rather than conferring broad authority over generally defined matters. See United Taxi Drivers at paragraph 6. United Taxi Drivers, which had not been issued when the Trial Division Judge rendered her decision, indicates that there is a shift away from this approach in respect of municipalities (paragraph 6). However, it is not necessary for the purposes of this appeal to determine the extent of this shift in relation to municipalities.

[17]            The words in the Canada National Parks Act that grant the Governor in Council the power to make regulations regarding building permit fees are:

16. (1) The Governor in Council may make regulations respecting                        ...(r) the determination of fees ... for ... the issuance ... of permits ....

16. (1) Le gouverneur en conseil peut prendre des règlements concernant_:                       ...r) la fixation des droits ... pour ... la délivrance ... des ... permis ...;

[18]            Unlike the historic practice of the provinces granting specific powers to municipalities, these words, on their face, confer broad authority on the Governor in Council. There is no indication that they are subject to any limitation. The Court must take the statute as it finds it. In the absence of limiting words in the statute, the Court will not read in limitations.

[19]            The Supreme Court of Canada and this Court have historically taken this approach to the interpretation of legislation conferring broad fee-setting powers on the Governor in Council.

These cases establish that where the Governor in Council is authorized to make regulations setting fees for Crown services, licences or permits, the regulations may classify the payers of the fees or the different situations in which they must be paid, and set different fees for each classification. Given the grant of general fee setting authority in paragraph 16(1)(r) of the Act, therefore, it follows that the Governor in Council may set different building permit fees for different national parks, regardless of whether doing so is discriminatory in the administrative law sense.

[20]            The leading case on this issue is Procureur Général du Canada v. Compagnie de Publication La Presse, Ltée., [1967] S.C.R. 60, which involved a challenge to a regulation setting fees for radio broadcasters, where the fees varied with gross revenue. The enabling legislation, section 3 of the Radio Act, R.S.C. 1952, c. 233, authorized the Governor in Council to "prescribe the tariff of fees to be paid for licences ... held and issued under this Act." Abbott J., writing for the majority, said this at page 75:

As to the alleged discriminatory character of the regulation, I am not satisfied that it is in fact discriminatory. In any event s. 3 of the Act puts no limitation upon the powers of the Governor in Council to prescribe licence fees. That such fees may in fact be discriminatory, in my opinion, affords no legal ground of attack upon the validity of the Order.

[21]            Similar comments appear in Aerlinte Eireann Teoranta v. Canada (Minister of Transport) (1990), 68 D.L.R. (4^th) 220 (F.C.A.). That case involved a challenge to the Air Services Fees Regulations, C.R.C. 1978, c. 5, which fixed landing fees that were different for domestic flights, international flights, and trans-oceanic flights. Section 5 of the Aeronautics Act, R.S.C. 1970, c. A-3, authorized the Governor in Council to make or authorize the Minister to make regulations prescribing charges for the use of facilities or services provided for any aircraft or at any airport. The landing fee regulation was challenged on a number of grounds, including discrimination. All of the challenges failed. Heald J.A., writing for the Court, said this about discrimination at page 228:

On the basis of this factual situation, the submission with respect to discrimination cannot be sustained. However, having said this, I must add that even if the record established a factual basis for discrimination, the result would not be any different. I agree with the trial judge that "... neither discrimination nor even unreasonableness is a ground for quashing regulations enacted by the executive" [citations omitted]. I also agree with him that: "The power to make regulations prescribing charges for use of facilities and services without further fetter, is the power to establish categories of users." [emphasis added].

[22]            The courts have historically required express or necessarily implied authorization in municipalities' governing statutes before the municipalities will be allowed to enact discriminatory by-laws. Conversely, when Parliament confers regulation-making authority on the Governor in Council in general terms, in respect of fees for Crown services, the courts approach the review of such regulations in a deferential manner. That is simply a matter of interpreting, in context, the words Parliament has used in accordance with their ordinary and grammatical meaning.

[23]            The words of paragraph 16(1)(r) of the Act are broad enough to confer authority on the Governor in Council to make regulations imposing higher building permit fees for Banff and Jasper National Parks than for other national parks. Nothing in their context argues in favour of any limitation of the kind advanced by the respondent.

CONCLUSION

[24]            I conclude that the Trial Division Judge erred in declaring the part of the Regulations contained in Schedule I, Part I, setting a building permit fee of $7 per $1,000 of estimated value in Banff National Park ultra vires. I would allow the appeal with costs here and in the Trial Division, set aside the decision of the Trial Division, and dismiss the judicial review application of Sunshine Village Corporation.

[25]            The issuance of a formal judgment will be deferred to permit submissions with respect to costs, if the parties are unable to agree. Within 7 days of the issuance of these reasons, the appellants shall either advise the Court that they do not wish to make a submission on costs (in which case the judgment will state that the appeal is allowed with costs here and in the Trial Division), or they shall serve and file a submission on costs not exceeding 3 pages, double-spaced. The submission may include a request that costs be fixed as a lump sum inclusive of disbursements. Within 7 days of service of that submission, the respondent may submit a response of not more than 3 pages, double-spaced.

                                                                             "Marshall Rothstein"                   

                                                                                                      J.A.

"I agree

K. Sharlow J.A."

"I agree

B. Malone J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           A-245-03

APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED MAY 2, 2003,

COURT FILE NO. T-1339-01

STYLE OF CAUSE:                           Parks Canada et al. v. Sunshine Village Corporation

PLACE OF HEARING:                     Edmonton, Alberta

DATE OF HEARING:                       March 25, 2004

REASONS FOR JUDGMENT:        ROTHSTEIN J.A.       

CONCURRED IN BY:                      SHARLOW J.A.

MALONE J.A.                        

DATED:                                              APRIL 27, 2004          

APPEARANCES:

Mr. Kirk Lambrecht

Mr. David Stam                                    FOR THE APPELLANT

Mr. Daniel P. Carroll

Mr. Jeremiah Kowalchuk                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of

Canada                                                FOR THE APPELLANT

Field LLP

Edmonton, AB                                    FOR THE RESPONDENT