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.