The Applicants were Bow Valley Engage Society and the Stoney Nakoda First Nations (Bearspaw, Chiniki and Goodstoney First Nations). The Applicants brought two applications for Judicial Review, heard together, that challenged a decision by the Designated Director under Section 42 of the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (“EPEA”). That decision determined that the Three Sisters Mountain Village project in Canmore was a continuation of the tourism and recreation development previously approved. As such, the Designated Director lacked jurisdiction to require a new environmental impact assessment (“EIA”). The Applicants argued that the current development plans should be considered a “proposed activity” under Section 39(e) of the EPEA and therefore require an EIA.

Prior to considering the substantive question, Justice Ho considered the preliminary issue raised by Thunderstone Quarries Canmore Ltd. (“Thunderstone”), a landowner operating on the subject lands. Thunderstone sought to strike the Judicial Review for lack of service. Thunderstone argued such service was required because they are a “directly affected” person or body under Rule 3.15(3)(c) and the failure to serve is fatal to a Judicial Review. Justice Ho emphasized that the term “directly affected” under Rule 3.15(3) does not require that the effect be adverse and that there may be other relevant considerations such as “contractual and economic relationships or ownership.” Ho J. agreed with Thunderstone, finding that they were “directly affected” because they owned significant portions of the land in question, had participated in satisfying conditions related to the development and could be directly impacted by any further stipulations or conditions arising from an EIA.

The Court disagreed with the Applicants’ argument was service was in order by virtue of individuals within the Thunderstone organization being aware of the Judicial Review and the fact that the Respondent, Three Sisters Mountain Village Properties Ltd. (“TSMVP”), had previously made arguments that it was the only party directly affected by the development plans. Justice Ho denied the Applicants’ argument that service on counsel for TSMVP should also be considered as service on the directors of Thunderstone, under Rule 11.17, because some of Thunderstone’s directors are also directors of TSMVP. Ho J. emphasized that Rule 11.17 only permits commencement documents to be served on a party’s lawyer of record, and there was no evidence that TSMVP’s counsel was lawyer of record for Thunderstone.

Justice Ho concluded that Thunderstone was not properly served with the Originating Applications in accordance with the Alberta Business Corporations Act, RSA 2000, c B- 9 or Rule 3.15(3) and, as such, the Judicial Review must fail. The Applicants also argued that Rule 3.15(3)(c) infringes Section 96 of the Constitution Act, 1867, arguing that the Rule creates a hurdle when it is impossible for an Applicant to determine or verify all persons that are “directly affected.” Ho J. disagreed, affirming that while Judicial Review cannot be wholly barred, Rule 3.15(3)(c) does not impose an impossible standard. The requirement on “directly affected” persons mean those with a personal and individual interest distinct from the general public. Justice Ho affirmed that the difficulty in distinguishing such persons does not render the Rule unconstitutional.

Despite dismissing the Application for Judicial Review on account of not serving Thunderstone, Ho J. still addressed the arguments advanced in the Judicial Review for completeness. Justice Ho found that the Designated Directors decision was reasonable, as the development plans were part of a unique project approved in 1992. The Court found that, given the history, scale, and long-term development of the project, it was open to the Designated Director to find that the development plans were part of a continuation, not a “proposed activity.” Both Applications for Judicial Review were dismissed.