Schwarz Hospitality Group Ltd. v. Canada (Minister of Canadian Heritage)

Schwarz Hospitality Group Ltd. v. Canada (Minister of Canadian Heritage) Court (s) Database Federal Court of Appeal Decisions Date 2003-02-03 Neutral citation 2003 FCA 60 File numbers A-73-02 Decision Content Date: 20030203 Docket: A-73-02 Neutral citation: 2003 FCA 60 CORAM: ROTHSTEIN, J.A. EVANS, J.A. MALONE, J.A. BETWEEN: THE SCHWARZ HOSPITALITY GROUP LIMITED Appellant - and - THE MINISTER OF CANADIAN HERITAGE and SUPERINTENDENT BANFF NATIONAL PARK Respondents Heard at Edmonton, Alberta, February 3, 2003. Judgment delivered from the Bench at Edmonton, Alberta, February 3, 2003. REASONS FOR JUDGMENT OF THE COURT BY: EVANS, J.A. CONCURRED IN BY: ROTHSTEIN, J.A. MALONE, J.A. Date: 20030203 Docket: A-73-02 Neutral citation: 2003 FCA 60 CORAM: ROTHSTEIN, J.A. EVANS, J.A. MALONE, J.A. BETWEEN: THE SCHWARZ HOSPITALITY GROUP LIMITED Appellant - and - THE MINISTER OF CANADIAN HERITAGE and SUPERINTENDENT BANFF NATIONAL PARK Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Edmonton, Alberta, on February 3, 2003.) EVANS, J.A. [1] This is an appeal by The Schwarz Hospitality Group Limited from a decision to dismiss a motion to require the Superintendent of Banff National Park to appear before the Honourable Justice Gibson to be prepared to hear proof of an act of contempt, namely, the Superintendent's failure to comply with an order issued by the Honourable Justice Gibson, dated February 23, 2001. The Motions Judge held that Schwarz had not established a prima facie case of contempt. [2] Despite the able argument of counsel for the appellant and the difficulties that he identified in the preamble to the order of the Motions Judge under appeal, we are of the opinion that the appeal must be dismissed, and for two reasons. [3] First, the letter of August 24, 2001, written by the Superintendent to Schwarz confirming his letter of July 11, 2001, makes it clear that the Superintendent had decided to refuse to issue a development permit to the appellant. When the text of these letters is read as a whole, the inclusion in them of the words "without prejudice" does not prevent the letters from constituting a decision by the Superintendent to refuse the permit. [4] Second, even if, as Schwarz alleges, the Superintendent's decision did not comply with the order of Gibson, J., the non-compliance alleged turned on a question of law or of mixed law and fact, namely whether the refusal was in accordance with the development approval process and development guidelines in force in 1997 as required by the order. [5] On the basis of the material before us we cannot conclude that the Superintendent knew that he had no power to refuse a permit, not least, because the order of Gibson, J. expressly contemplated this possibility. Without evidence of bad faith of this kind, there is no just cause for a hearing to determine whether the Superintendent is guilty of contempt. [6] In our view, the issues raised by Schwarz regarding the lawfulness of the Superintendent's refusal are more appropriately pursued in the application for judicial review of that refusal which has already been filed. [7] For these reasons the appeal will be dismissed with costs fixed in the lump sum of $2,500.00 inclusive of disbursements. J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-73-02 STYLE OF CAUSE: The Schwarz Hospitality Group Limited v. The Minister of Canadian Heritage and Superintendent Banff National Park PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: February 03, 2003 REASONS FOR JUDGMENT BY: EVANS J.A. CONCURRED IN BY: ROTHSTEIN J.A., MALONE J.A. DATED: February 03, 2003 APPEARANCES: Mr. Judson Virtue FOR THE APPELLANT Mr. Kirk Lambrecht, Q.C. FOR THE RESPONDENTS SOLICITORS OF RECORD: Macleod Dixon FOR THE APPELLANT Calgary, Alberta Morris Rosenberg FOR THE RESPONDENTS Deputy Attorney General of Canada