COOPER v GANTER, 2012 ABQB 695
1.5: Rule contravention, non-compliance and irregularities
3.15: Originating application for judicial review
3.2: How to start an action
7.3: Summary Judgment (Application and decision)
The Defendant, Her Majesty the Queen in Right of the Province of Alberta (the “Crown”), applied for Summary Judgment to dismiss the Plaintiffs’ Action against it, arguing that there was no merit to the Plaintiffs’ claim. The Crown argued that the Amended Statement of Claim sought a public law remedy in the nature of a Writ of Mandamus against it, which had to be pursued via Judicial Review. The Crown further submitted that any such Judicial Review was barred by the six month limitation period set out under Rule 3.15, as the original Statement of Claim was filed some 16 months after the Plaintiffs became aware of the Crown’s Decision affecting them.
The dispute arose over a license for a Registered Fur Management Area which was given by one of the Plaintiffs, Marvin Boucher, in 1999 to his sister, Bertha Ganter (“Ms. Ganter”). After Ms. Ganter’s death, the Crown concluded that the license was vacant and awarded it to the Defendant, Stephen Ganter (“Mr. Ganter”). Boucher argued that Ms. Ganter intended to have the licence revert back to him. In the Amended Statement of Claim, Boucher requested an Order directing that the licence be returned to him.
The Plaintiffs argued that a constructive or express trust existed by virtue of Ms. Ganter’s letter, and that the licence should not have reverted to the Minister under the Wildlife Act. The Plaintiffs also submitted that the remedy of a Declaration, as sought in the Amended Statement of Claim, was a situation to which Rules 3.15(1) and (2) did not apply; therefore, there was no time limitation of six months. Justice Park held that the Plaintiffs’ attack on the Crown’s Decision formed the basis for Judicial Review and was in form and substance a Writ of Mandamus. The Claim was therefore subject to the six-month limitation period in Rule 3.15, and the limitation period had expired prior to the claim being filed.
Justice Park also noted that the Court had discretion under Rule 1.5(1) to convert the Amended Statement of Claim to an Originating Application for Judicial Review, but declined to exercise this discretion as there was no Application by the Plaintiffs for such relief. Further, it was held that to do so would circumvent the operation of the six month limitation period for Judicial Review under Rule 3.15. Justice Park granted Summary Judgment in favour of the Crown, holding that there was no merit to the Plaintiffs’ claims.View CanLII Details