A-245-03
2004 FCA 166
Parks Canada, Sheila Copps, Minister of Canadian Heritage, The Superintendent, Banff National Park; and The Attorney General of Canada (Appellants)
v.
Sunshine Village Corporation (Respondent)
Indexed as: Sunshine Village Corp. v. Canada (Parks) (F.C.A.)
Federal Court of Appeal, Rothstein, Sharlow and Malone JJ.A.--Edmonton, March 25; Ottawa, April 27, 2004.
Administrative Law -- Judicial Review -- Appeal from Trial Division decision that higher building permit fee for Banff, Jasper than for other national parks, imposed by Regulations under Canada National Parks Act, discriminatory, ultra vires Act -- Case law establishing that where Parliament conferring fee-setting authority on Governor in Council, latter authorized to classify payers or situations, set different fees for each classification -- Review of regulations made under such fee-setting authority to be approached in deferential manner -- Act, s. 16(1)(r) conferring broad authority to set different building permit fees for Banff, Jasper National Parks -- Higher fee in Regulations not ultra vires.
This was an appeal from a decision of the Trial Division holding that the higher fee charged for building permits in Banff and Jasper National Parks was discriminatory and that this discrimination was not authorized by the Canada National Parks Act expressly or by necessary implication. The issue was whether the Governor in Council could, under a general power to set building permit fees conferred on it by Parliament, in the Act, paragraph 16(1)(r) set different fees for different national parks.
The respondent operates a ski area in Banff National Park known as "Sunshine Village." In June 2001, the respondent obtained a building permit issued by the Superintendent of the Park to replace and upgrade a gondola. The respondent was charged a building permit fee of $105,000 calculated in accordance with the National Parks Building Regulations which provide that, in Banff and Jasper National Parks, the fees for a building permit are calculated at a rate of $7 per $1,000 of the estimated value of a building or structure. The rate for all other national parks is $5 per $1,000. The respondent sought judicial review in the Trial Division from the decision of the Superintendent and the Judge found the higher fee to be ultra vires the Act. This decision was appealed to this Court.
Held, the appeal should be allowed.
The vires of subordinate legislation is always to be reviewed on a correctness standard. For the purposes of this case, it was assumed that the setting of higher fees was discriminatory in an administrative law sense. However, this discrimination was not prohibited. Supreme Court of Canada and Federal Court of Appeal cases have established that where the Governor in Council is authorized to make regulations setting fees for Crown services, licences or permits, the regulations could classify the payers of the fees or the different situations in which they must be paid, and set different fees for each classification. The review of regulations made under such authority should be approached in a deferential manner, interpreting, in context, the words Parliament used in accordance with their ordinary and grammatical meaning. The words of paragraph 16(1)(r) of the Act conferred authority on the Governor in Council in respect of fees for Crown services, and were broad enough to confer authority on the Governor in Council to set different building permit fees for Banff and Jasper National Parks, regardless of whether doing so was discriminatory in the administrative law sense.
.
statutes and regulations judicially
considered
Aeronautics Act, R.S.C. 1970, c. A-3, s. 5.
| Air Services Fees Regulations, C.R.C., c. 5. |
| Canada National Parks Act, S.C. 2000, c. 32, s. 16. |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15. |
| National Parks Building Regulations, C.R.C., c. 1114, ss. 5(1), 15(1), Sch. I (as enacted by SOR/81-667, s. 4; 96-427, s. 2). |
| Radio Act, R.S.C. 1952, c. 233, s. 3. |
cases judicially considered
followed:
Procureur général du Canada v. La Compagnie de Publication La Presse, Ltée, [1967] S.C.R. 60; (1966), 63 D.L.R. (2d) 396; 66 DTC 5492.
applied:
Aerlinte Eireann Teorante v. Canada (Minister of Transport) (1990), 68 D.L.R. (4th) 220; 107 N.R. 120 (F.C.A.).
considered:
United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City); [2004] 1 S.C.R. 485; (2004), 346 A.R. 4; 236 D.L.R. (4th) 385 [2004] 7 W.W.R. 603; 26 Alta. L.R. (4th) 1; 12 Admin. L.R. (4th) 1; 318 N.R. 170; 46 M.P.L.R. (3d) 1; R. v. Sharma, [1993] 1 S.C.R. 650; (1993), 100 D.L.R. (4th) 167; 10 Admin. L.R. (2d) 196; 79 C.C.C. (3d) 142; 19 C.R. (4th) 329; 14 M.P.L.R. (2d) 35; 149 N.R. 161; 61 O.A.C. 161.
authors cited
Brown, Donald J.M. and John M. Evans. Judicial Review of Administrative Action in Canada, looseleaf. Toronto: Canvasback Pub., 1998.
APPEAL from a decision of the Trial Division ([2003] 4 F.C. 459; (2003) 3 Admin. L.R. (4th) 138; 39 M.P.L.R. (3d) 96) holding that the higher fee charged for building permits in Banff and Jasper National Parks, provided by Item 1 of Part I of the Schedule to the National Parks Building Regulations, was discriminatory and that this discrimination was not authorized by the Canada National Parks Act. Appeal allowed.
appearances:
Kirk N. Lambrecht, Q.C. and David J. Stam for appellants.
Daniel P. Carroll and Jeremiah J. Kowalchuk for respondent.
solicitors of record:
Deputy Attorney General of Canada for appellants.
Field LLP, Edmonton, for respondent.
The following are the reasons for judgment rendered in English by
Rothstein J.A.:
ISSUE
[1]The issue in this appeal from the Trial Division [[2003] 4 F.C. 459] (as it then was) is whether the Governor in Council may, under a general power to set building permit fees conferred on it by Parliament in the Canada National Parks Act, S.C. 2000, c. 32 (the Act), set different fees for different national parks.
POSITION OF THE APPELLANTS AND RESPONDENT
[2]The appellants say the unrestricted power to set fees by regulation permits different fees to be set for different parks. The respondent says that the setting of different fees is discriminatory and that, in the absence of express or necessarily implied authority in the enabling statute, the Governor in Council may not promulgate regulations that discriminate by providing for different fees between parks.
FACTS
[3]The respondent operates a ski area in Banff National Park known as "Sunshine Village." The ski facilities include a gondola, i.e., a lift system that transports skiers from a base facility to an upper village. In December 2000, the respondent applied to Parks Canada for permission to replace and upgrade the gondola. A building permit was issued by the Superintendent of Banff National Park on June 27, 2001.
[4]The National Parks Building Regulations, C.R.C., c. 1114, as amended (the Regulations) provide that, in Banff and Jasper National Parks, the fees for a building permit are calculated at a rate of $7 per $1,000 of the estimated value of a building or structure while, in all other national parks, the rate is $5 per $1,000. Accordingly, as the estimated value of the gondola was $15 million, the respondent was charged a building permit fee of $105,000.
[5]The respondent sought judicial review in the Trial Division from the decision of the Superintendent on a number of grounds. The Trial Division Judge held that the gondola was a "building or structure" within the meaning of the Regulations but held that the higher fee charged for building permits in Banff and Jasper National Parks was discriminatory and that such discrimination was not authorized by the Act expressly or by necessary implication. She therefore declared the higher fee ultra vires the Act. Only the discrimination issue was appealed to this Court. I am of the opinion that the Trial Division Judge was in error in declaring the higher fee for Banff and Jasper National Parks in the Regulations ultra vires. The appeal therefore should be allowed.
RELEVANT LEGISLATION
[6]National parks are managed by the Minister of Canadian Heritage, subject to regulations made by the Governor in Council pursuant to section 16 of the Act, the relevant portions of which read as follows:
16. (1) The Governor in Council may make regulations respecting
. . .
(m) the control of the location, standards, design, materials, [and] construction . . . of buildings, structures, . . . and other improvements . . .
. . .
(r) the determination of fees, . . . for . . . the issuance . . . of permits, licences and other authorizing instruments pursuant to subsection (3);
. . .
(3) Regulations made under this section may authorize the superintendent of a park, in the circumstances and subject to the limits that may be specified in the regulations,
. . .
(b) to issue, amend, suspend and revoke permits, licences and other authorizations in relation to any matter that is the subject of regulations and to set their terms and conditions; . . . .
[7]Paragraph 5(1)(b) of the Regulations provides that no person shall commence the erection or reconstruction of a building unless he first obtains a permit:
5. (1) No person shall
. . .
(b) commence the erection, alteration, reconstruction or structural repair of a building, or
. . .
unless he has first obtained a building permit for that purpose from the Superintendent.
[8]Subsection 15(1) of the Regulations provides for the fees to be charged for permits. Subsection 15(1) provides:
15. (1) The fees for the permits required by these Regulations are as set out in the schedule.
[9]Item 1 of Part I of the Schedule [as enacted by SOR/81-667, s. 4; 96-427, s. 2] sets forth the fees for building permits:
| Item Type of Permit Fee ($) |
| 1. Building permit, per $1,000 or fraction |
| thereof of estimated value of the |
building or structure
| (a) in Banff or Jasper National Park 7.00 |
(b) in any other park 5.00
ANALYSIS
| 1. Standard of Review |
[10]The only question in this appeal is whether Item 1(a) of Part I of the Schedule to the Regulations is ultra vires the Act. Reviewing whether subordinate legislation is authorized by its enabling statute does not require application of the pragmatic and functional approach. Rather, the vires of subordinate legislation is always to be reviewed on a correctness standard. See, for analogous circumstances in respect of municipal by-laws, United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, at paragraph 5.
| 2. Is There Discrimination? |
[11]A threshold question is whether the fixing of different fees for building permits between national parks constitutes discrimination. The appellants say that fixing different fees is not per se discriminatory. Rather, they say the respondent must demonstrate that the circumstances between the parks they wish to compare are similar. I take this to mean that those applying for building permits in the allegedly comparable parks are in competition or, perhaps, that the costs incurred by the Government in respect of the services required in relation to the issuance of the building permits are similar.
[12]The respondent submits that it need only demonstrate that the Regulations setting different fees apply to the same class, i.e., persons applying for building permits in national parks.
[13]This is not a case about discrimination under section 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] or under human rights legislation. Rather, it is a case about alleged administrative law discrimination. Administrative law discrimination occurs when "municipal bylaws and other forms of subordinate legislation . . . are discriminatory in the sense that they do not apply equally to all those engaged in the activity that is the subject of the enactment" (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback, 1998), at paragraph 15:3212).
[14]In view of my disposition of the appeal, it is unnecessary to make a final determination of whether this definition of administrative law discrimination applies to regulations promulgated by the Governor in Council. I will assume, without deciding, that Item 1(a) of Part I of the Schedule to the Regulations, which sets building permit fees in Banff and Jasper National Parks at a rate of $7 per $1,000 of estimated value, as compared to a rate of $5 per $1,000 of estimated value in all other parks, is discriminatory in an administrative law sense.
3. Is Discrimination Prohibited?
[15]The learned Trial Division Judge relied on municipal law cases to hold that regulations establishing different building permit fees for different parks are ultra vires on the grounds of discrimination. Historically, municipalities had been unable to enact discriminatory by-laws in the absence of expressly or necessarily or fairly implied authorization in their governing statute. As Iacobucci J. stated in R. v. Sharma, [1993] 1 S.C.R. 650, at page 668:
The rule against discriminatory by-laws is an outgrowth of the principle that, as statutory bodies, municipalities "may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation" (Makuch, Canadian Municipal and Planning Law (1983), at p. 115).
[16]This approach to interpreting municipal by-laws was concomitant with the practice of provinces granting municipalities specific powers in particular subject areas, rather than conferring broad authority over generally defined matters. See United Taxi Drivers', supra, at paragraph 6. United Taxi Drivers', which had not been issued when the Trial Division Judge rendered her decision, indicates that there is a shift away from this approach in respect of municipalities (paragraph 6). However, it is not necessary for the purposes of this appeal to determine the extent of this shift in relation to municipalities.
[17]The words in the Canada National Parks Act that grant the Governor in Council the power to make regulations regarding building permit fees are:
16. (1) The Governor in Council may make regulations respecting
. . .
(r) the determination of fees . . . for . . . the issuance . . . of permits . . . .
[18]Unlike the historic practice of the provinces granting specific powers to municipalities, these words, on their face, confer broad authority on the Governor in Council. There is no indication that they are subject to any limitation. The Court must take the statute as it finds it. In the absence of limiting words in the statute, the Court will not read in limitations.
[19]The Supreme Court of Canada and this Court have historically taken this approach to the interpretation of legislation conferring broad fee-setting powers on the Governor in Council. These cases establish that where the Governor in Council is authorized to make regulations setting fees for Crown services, licences or permits, the regulations may classify the payers of the fees or the different situations in which they must be paid, and set different fees for each classification. Given the grant of general fee setting authority in paragraph 16(1)(r) of the Act, therefore, it follows that the Governor in Council may set different building permit fees for different national parks, regardless of whether doing so is discriminatory in the administrative law sense.
[20]The leading case on this issue is Procureur général du Canada v. La Compagnie de Publication La Presse, Ltée, [1967] S.C.R. 60, which involved a challenge to a regulation setting fees for radio broadcasters, where the fees varied with gross revenue. The enabling legislation, section 3 of the Radio Act, R.S.C. 1952, c. 233, authorized the Governor in Council to "prescribe the tariff of fees to be paid for licences . . . held and issued under this Act." Abbott J., writing for the majority, said this at page 75:
As to the alleged discriminatory character of the regulation, I am not satisfied that it is in fact discriminatory. In any event s. 3 of the Act puts no limitation upon the powers of the Governor in Council to prescribe licence fees. That such fees may in fact be discriminatory, in my opinion, affords no legal ground of attack upon the validity of the Order.
[21]Similar comments appear in Aerlinte Eireann Teorante v. Canada (Minister of Transport) (1990), 68 D.L.R. (4th) 220 (F.C.A.). That case involved a challenge to the Air Services Fees Regulations, C.R.C., c. 5, which fixed landing fees that were different for domestic flights, international flights, and trans-oceanic flights. Section 5 of the Aeronautics Act, R.S.C. 1970, c. A-3, authorized the Governor in Council to make or authorize the Minister to make regulations prescribing charges for the use of facilities or services provided for any aircraft or at any airport. The landing fee regulation was challenged on a number of grounds, including discrimination. All of the challenges failed. Heald J.A., writing for the Court, said this about discrimination at page 228:
On the basis of this factual situation, the submission with respect to discrimination cannot be sustained. However, having said this, I must add that even if the record established a factual basis for discrimination, the result would not be any different. I agree with the Trial Judge that ". . . neither discrimination nor even unreasonableness is a ground for quashing regulations enacted by the executive". I also agree with him that:
| "The power to make regulations prescribing charges for use of facilities and services without further fetter, is the power to establish categories of users." [Emphasis added; citations omitted.] |
[22]The courts have historically required express or necessarily implied authorization in municipalities' governing statutes before the municipalities will be allowed to enact discriminatory by-laws. Conversely, when Parliament confers regulation-making authority on the Governor in Council in general terms, in respect of fees for Crown services, the courts approach the review of such regulations in a deferential manner. That is simply a matter of interpreting, in context, the words Parliament has used in accordance with their ordinary and grammatical meaning.
[23]The words of paragraph 16(1)(r) of the Act are broad enough to confer authority on the Governor in Council to make regulations imposing higher building permit fees for Banff and Jasper National Parks than for other national parks. Nothing in their context argues in favour of any limitation of the kind advanced by the respondent.
CONCLUSION
[24]I conclude that the Trial Division Judge erred in declaring the part of the Regulations contained in Schedule I, Part I, setting a building permit fee of $7 per $1,000 of estimated value in Banff National Park ultra vires. I would allow the appeal with costs here and in the Trial Division, set aside the decision of the Trial Division, and dismiss the judicial review application of Sunshine Village Corporation.
[25]The issuance of a formal judgment will be deferred to permit submissions with respect to costs, if the parties are unable to agree. Within 7 days of the issuance of these reasons, the appellants shall either advise the Court that they do not wish to make a submission on costs (in which case the judgment will state that the appeal is allowed with costs here and in the Trial Division), or they shall serve and file a submission on costs not exceeding 3 pages, double-spaced. The submission may include a request that costs be fixed as a lump sum inclusive of disbursements. Within 7 days of service of that submission, the respondent may submit a response of not more than 3 pages, double-spaced.
Sharlow J.A.: I agree.
Malone J.A.: I agree.