British Columbia Hydro and Power Authority v. Canada ( Attorney General )
T-1171-97
Rothstein J.
10/10/97
9 pp.
Appeal from Prothonotary's refusal to convert judicial review application into action-Judicial review concerning minimum flow order containing specified water release schedule for Daisy Lake Dam constructed, operated by applicant-Applicant alleging Minister of Fisheries and Oceans estopped from making order because relied on Government's representation no minimum flow order would be issued before constructing dam-Respondents submitting Prothonotary erred in failing to recognize applicant required to show suffered detriment as result of reliance on alleged representation of Government of Canada-To prove detriment must prove harm flowing from change of position resulting from respondents' acting inconsistently with original representation i.e. proof of harm from making of minimum flow order which applicant alleging contrary to representations upon which relied to alter position by constructing dam-Prothonotary correctly concluding since change of position leading to plea of estoppel, wide-ranging investigation into economics of dam, profitability over years irrelevant-Prothonotary not convinced of value of oral evidence of something happening over 40 years ago-In concluding not clearest of circumstances for conversion to action, following tests for conversion set out in cases-Decision not "clearly wrong" or based on misapprehension of facts-Respondents submitting Government's representation made assuming applicant would not use excess water, but in fact applicant used amounts of water in excess of that allowed by licence-Prothonotary holding overreaching of licence having no bearing on representations made, relied upon many years earlier-Not misapprehension of facts, but refusal to accept connections alleged by respondents-Prothonotary correctly holding no reason to convert to action when no foundation for respondents' suggestion applicant making inaccurate representations to Government as to urgency of construction of dam-In exercising discretion not to convert to action, Prothonotary making findings respecting irrelevance of economics of power generation-Such incidental findings not binding on judge hearing judicial review and not constituting determinations vital to final issue of judicial review-Prothonotary of opinion viva voce evidence of representations made over 40 years ago and wide-ranging investigation into economics of Daisy Lake Dam unnecessary and in exercising discretion decision not based on any wrong principle, misapprehension of facts, raising question vital to final issue of case.