Sunshine Village Corp. v. Canada ( Minister of Canadian Heritage )
T-808-95
Simpson J.
26/6/95
17 pp.
Motion to strike out application for judicial review of Environment Minister's decision to appoint environmental assessment panel with terms of reference to review 1992 plan proposal regarding development of ski resort-Applicant ski resort (SVC) located on national park property leased from Crown -- Government approval of initial 1978 plan proposal for development of resort leading to commencement of construction -- New set of environmental guidelines (EARP) introduced by government-SVC preparing second long-range development plan (1992 plan) including: (1) facilities under construction pursuant to 1978 plan; (2) facilities approved pursuant to 1978 plan but yet unbuilt, particularly Goat's Eye area project; and (3) additional expansions-1992 plan receiving written approval by Environment Minister and SVC beginning phase I of Goat's Eye project -- Parks Canada Minister making first request for EARP review of Goat's Eye project and proposed additions -- Permit for phase II of project refused; SVC seeking order compelling issuance of permit; Joyal J. allowing SVC's application -- Joyal J.'s decision holding: (1) EARP guidelines not applying to Goat's Eye project as no longer proposal; (2) EARP guidelines not applying to items approved in 1978 plan and unchanged in 1992 plan as EARP having no retroactive effect -- Parks Canada making second request for EARP review, having deleted Goat's Eye project from terms of reference following Joyal J.'s decision -- EARP guidelines replaced by Act -- Environment Minister appointing impugned review panel with terms of reference including unbuilt components of 1978 Plan and additional expansions but excluding Goat's Eye project -- Crown's res judicata claim: (1) Joyal J.'s decision determining issue either expressly or implicitly; and (2) SVC having obligation to raise Panel's validity during proceedings before Joyal J. -- Joyal J.'s decision not based on either terms of reference of review panel or on new Act -- Joyal J. not deciding with regard to Act or to written approval whether panel constituted pursuant to Act could consider items listed in terms of reference -- Issues raised by SVC not res judicata-Panel's jurisdiction to review 1992 plan not decided by necessary implication pursuant to Joyal J.'s declaration motion for interlocutory injunction to stop phase I of Goat's Eye project moot -- Questions regarding validity of written approval and validity of panel to review entire 1992 plan in light of written approval not addressed by Joyal J. -- Joyal J.'s decision regarding mootness of issues pertaining to Goat's Eye project not implicitly deciding issue of additional expansions -- Joyal J.'s finding regarding mootness not meaning, by necessary implication, panel appointed pursuant to first request would be validly appointed-Validity of panel not res judicata on ground part of ratio decidendi in Joyal J.'s decision either by express or necessary implication -- Although appointment of panel likely, not absolute certainty; thus SVC's failure to attack second request in favour of waiting for actual appointment of panel and final terms of reference not amounting to abuse of process -- SVC acting prudently in waiting to challenge substantive decision -- Motion dismissed-Canadian Environmental Assessment Act, S.C. 1992, c. 37.