Decision Date: June 1, 2001
Court: B.C.S.C., Mr. Justice Cole
Cite: Vancouver Registry No. L002834
Turnagain Holdings Ltd. applied for judicial review of a July 9, 1993 decision of the Board in Appeal No. 92/23 Wildlife, in which the Board upheld the decision of the Deputy Director to deny Turnagain the right to be heard in a hearing under the Wildlife Act. The appeal was brought to the Board by Brian Dalziel, in response to the decision of Deputy Director to suspend his guide outfitter licence and cancel his guide outfitter certificate, which he had previously agreed to transfer to Turnagain.
Prior to the hearing before the Deputy Director, the Ministry gave Turnagain notice of the hearing against Mr. Dalziel. The Ministry was aware of the business arrangement whereby Mr. Dalziel held a guide outfitting certificate in trust as agent for Turnagain, who provided the financial backing for the enterprise. However, the Deputy Director refused to grant Turnagain standing to participate in the hearing, as Turnagain did not hold or have any share in the certificate.
At the Board hearing, counsel for Mr. Dalziel and Turnagain argued that because of the contractual relationship between them, Turnagain was owed a duty of fairness, and that the Deputy Director’s refusal to provide Turnagain with the right to be heard had breached the rules of natural justice. The Board rejected this argument on the basis that the purpose of the hearing was to consider Mr. Dalziel’s legal right, and that the Deputy Director was required to ensure that the hearing proceed without undue interference from those who did not have a legal right to be part of the disciplinary hearing.
In October 2000, Turnagain filed a petition for judicial review of the July 9, 1993 decision. Its position was that the Board had erred in upholding the Deputy Director’s refusal to hear Turnagain, and that it did not have the financial resources to proceed with the matter earlier. The Ministry took the position that to grant the relief requested by Turnagain would result in substantial prejudice or hardship to them because of the delay in bringing the judicial review proceedings.
The Court found that the interest of Turnagain was not simply a contingent interest, rather it was one that was direct, and that the Deputy Director breached the rules of natural justice by refusing to allow Turnagain to call evidence, cross-examine witnesses, and make final submissions. The Court held that the Board erred when it failed to find that the Deputy Director had breached a duty of fairness to Turnagain.
The Court found, however, that the delay in commencing the judicial review was unreasonable, and that substantial prejudice would result with respect to treaty negotiations if the application were granted. When no review was initiated, the British Columbia Treaty Commission included the guide outfitters certificate as an integral part of their negotiations with the Kaska Dena Council. The Court was not convinced that Turnagain lacked the financial resources to proceed with the judicial review in a timely manner.
The petition was dismissed.