NADON J.A.
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
Representing the Minister designated under the
Cultural Property Export and Import Act
Heard at Edmonton, Alberta, on May 29, 2006.
Judgment delivered from the Bench at Edmonton, Alberta, on May 29, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
CONCURRED IN BY: LINDEN J.A.
NADON J.A.
Docket: A-348-05
Citation: 2006 FCA 203
CORAM: LINDENJ.A.
NADON J.A.
EVANS J.A.
BETWEEN:
JOAN A. WILIAMSON
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Representing the Minister designated under the
Cultural Property Export and Import Act
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta, on May 29, 2006)
[1] This is an appeal from a decision of Justice von Finckenstein of the Federal Court, dated
July 6, 2005, dismissing an application for judicial review by Joan Williamson of a decision by Victoria Baker, Acting Manager, Moveable Cultural Property Program, Heritage Canada. The Judge's decision is reported as Williamson v Canada(Attorney General),2005 FC 954.
[2] Ms Baker had concluded that the Fort Saskatchewan Historical Society was ineligible to seek designation as a "Category B" institution pursuant to subsection 32(2) of the Cultural Property Export and Import Act, R.S.C. 1985, c. C-51. The basis of her decision was that title to the property in respect of which the Society had applied for the designation had already been transferred to it by Ms Williamson, and that subsection 32(2) applies only if title has not passed when an application for designation is made.
[3] Counsel for Ms Williamson, who had not appeared below, raised only two arguments before us, having conceded the principal point argued before the Federal Court Judge, namely that, properly interpreted, subsection 32(2) provides that an institution may only be designated as a "Category B" institution prior to the passing of title in the property in question.
[4] First, she said that the Applications Judge was wrong to find that title to the goods had passed to the Society before it made the application for designation. We do not agree. A note to file by Ms Baker, dated November 3, 2001, stated that she was advised by the Society's curator that there had been a legal transfer of the goods to the Society. This was sufficient to support the Judge's finding. There was no affidavit from Ms Williamson or the Society to contradict Ms Baker's note.
[5] Second, counsel argued that the Minister's power to designate had not lawfully been delegated to Ms Baker and that therefore her decision was invalid. The Minister had sub-delegated to the Deputy Minister her statutory power to designate an institution. We cannot agree. Ms Baker was merely deciding that, since title to the property had already passed to the Society, it was not eligible for designation under the Act. As counsel for the Attorney General put it, Ms Baker was merely performing a "gate keeper" function when she determined that the Society was ineligible to be designated. She did not herself exercise the power to designate by applying the relevant legal criteria that an institution must meet in order to be designated.
[6] For these reasons, the appeal will be dismissed with costs.
"John M. Evans"
______________________________
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-348-05
(APPEAL FROM A JUDGMENT OR ORDER OF THE HONOURABLE JUSTICE VON FINCKENSTEIN, DATED JULY 06, 2005, DOCKET NO. T-1214-02)
STYLE OF CAUSE: JOAN A. WILLIAMSON v.
ATTORNEY GENERAL OF CANADA, representing the Minister designated under the Cultural Property Export and Import Act
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN, NADON, EVANS, J.A.
APPEARANCES:
| FOR THE APPELLANT
|
|
| FOR THE RESPONDENT
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SOLICITORS OF RECORD:
|
BARRISTERS AND SOLICITORS 2500 CANADIAN WESTERN BANK PLACE 10303 JASPER AVENUE EDMONTON AB T5J 3N6 |
FOR THE APPELLANT
|
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DEPARTMENT OF JUSTICE 211 BANK OF MONTREAL BUILDING 10199 - 101 STREET EDMONTON AB T5J 3Y4 |
FOR THE RESPONDENT
|