Digests

Decision Information

Decision Content

PRACTICE

Pleadings

Motion to Strike

Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage)

T-363-01

2004 FC 1246, von Finckenstein J.

14/9/04

11 pp.

Appeal from Prothonotary's order ([2004] F.C.J. No. 421 (F.C.) (QL)) striking out action against defendants--Plaintiff assignee of lease for use of commercial ski area in Banff National Park-- Park superintendent denying plaintiff use of gondolas during summer months --Judicial review of decision dismissed--Plaintiff commencing action against defendants-- Prothonotary striking out action against Minister personally, individual defendants--Prothonotary also concluding issues raised in action sufficiently similar to those in judicial review to constitute abuse of process--Appeal of order striking individual defendants dismissed--As to abuse of process based on issue estoppel, judicial review proceeding concerned decision made before management plan (MP) for Banff National Park came into existence--In present action, decision at issue made at time when MP governing decision not to permit summer use of gondola--Court having to determine effect, status of MP, whether MP ministerial direction under Parks Canada Agency Act, whether MP amounting to fettering of discretion--Question to be determined in present action having very different factual, legal underpinnings than question decided in judicial review--Prothonotary proceeding under misapprehension of facts--First leg of test for issue estoppel set out in Angle v. M.N.R., [1975] 2 S.C.R. 248 (same question decided) not met--Appeal allowed--Parks Canada Agency Act, S.C. 1998, c. 31.

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.