How not to implement court’s decision | Sara Blake

By Sara Blake

Law360 Canada (February 17, 2023, 10:12 AM EST) --
Sara Blake
Sara Blake
What if a court on judicial review upholds a minister’s decision as reasonable but for one detail and directs the parties to settle that detail — but they cannot agree? Is this an order referring the matter back to the minister with a direction that, if not complied with, may be subject to a new judicial review? Or is it a question of settling the judge’s order and, if the parties cannot agree, a right to return to the judge for an order prescribing the detail?

The detail concerns the terms of a condition to a licence. On judicial review, in Trainor-Degirolamo v. British Columbia (Ministry of Forests, Lands, Natural Resource Operations and Rural Development) 2022 BCCA 306, the judge at first instance ruled that the minister’s decision to issue the licence was reasonable except for the lack of clarity as to one condition. She directed the parties to settle the wording of the condition. They could not agree. The petitioner brought the matter back before the judge to settle the order. The minister and licensee argued that the matter should instead have been raised by way of a new judicial review and that the draft condition proposed by the minister should have been reviewed on a standard of reasonableness. The Court of Appeal ruled that it was appropriate for the judge to settle the order.

The petitioners were neighbours of a lakeside resort which had been granted a licence to build a private marina. The resort had proposed the marina to replace numerous mooring buoys that had been installed by the resort owner and by residents of the resort. The resort’s licence application to the minister discussed removal of the buoys. The minister’s reasons for granting the licence assumed removal of the buoys but this was not explicitly required by the licence.

On judicial review the minister’s decision to issue the licence was upheld as reasonable but for the lack of an explicit condition to remove the buoys. The petition was dismissed on condition that the licence be amended to provide clarity on the obligation of the resort to remove “all mooring buoys.” The judge’s reasons said that, if the minister and the parties are unable to agree on the clarification language, they may return before the judge to settle the matter.

They could not agree which buoys were included in the judge’s words “all mooring buoys.”

The petitioner brought the matter before the judge to settle the terms of the condition. The judge agreed with the petitioner’s position and drafted the specific language of the condition to be included in the court order.

The minister and the resort appealed. The British Columbia Court of Appeal ruled that the use of the procedure to settle an order was appropriate. A new judicial review would have been necessary only if the judge had quashed the licence because of the absence of a condition to remove the buoys. However, at the minister’s request — to avoid practical problems if the licence were quashed — the judge upheld the licence decision as reasonable subject to a direction that the minister amend the licence to add the condition to remove all the buoys. In any event, a new judicial review would not have had a different result.

The judge’s order required the minister to amend the licence to include the resort’s obligation to remove all mooring buoys in accordance with her findings. She had found that the buoys to be removed were identified by the resort in its licence application. In their negotiations to settle the order, the minister accepted the resort’s request to reduce the number of buoys to be removed. However, both courts ruled that the direction to settle the condition did not grant the minister discretion to prescribe a condition to remove only some of the buoys.

The only issue to be settled by the minister and the parties was the wording of the condition. The Court of Appeal ruled that it is not appropriate for judges to draft the precise language of a government licence. It should be left to the parties to put the court’s order into contractual language. As the parties failed to do this, they received a judicially drafted condition that contained errors relating to other regulatory requirements and departed from the generally accepted language of licence conditions. The Court of Appeal amended the judge’s order to adopt the draft wording of the condition agreed by the minister and the parties, which they should have drafted prior to attending before the judge to settle the order.

This case cautions parties to interpret a court’s directions in accordance with its reasons, including its findings. The minister and resort caused unnecessary additional litigation by attempting to revisit the issue of which buoys had to be removed.

Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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