Edmonton Flying Club v. Edmonton Regional Airports Authority, 2012 ABQB 664

Court of Queen ’ s Bench of Alberta Citation: Edmonton Flying Club v. Edmonton Regional Airports Authority, 2012 ABQB 664 Date: 20121029 Docket: 1103 11120, 0903 16530, 1003 00819, 1103 06357, 1103 12234, Registry: Edmonton Between: 1103 11120 Edmonton Flying Club and 1222663 Alberta Ltd. Plaintiffs - and - Edmonton Regional Airports Authority and the City of Edmonton Defendants and Between: 0903 16530 Airco Aircraft Charters Ltd.

Plaintiff -and- Edmonton Regional Airports Authority and the City of Edmonton Defendants and Between: 1003 00819 Edmonton Flying Club Plaintiff -and- Edmonton Regional Airports Authority and Edmonton Airports Inc. Defendants and Between: 1103 06357 Edmonton Flying Club Plaintiff - and - Edmonton Regional Airports Authority and the City of Edmonton Defendants and Between: 1103 12234

Morningstar Air Express Inc., Morningstar Partners Ltd. and Morningstar Air Corporation Plaintiffs - and - Edmonton Regional Airports Authority, the City of Edmonton, Shell Canada Limited and Shell Canada OP Inc. Defendants _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] Pursuant to the provisions of Rule 9.3, the parties ask the court to settle the minutes of the order arising from the court ’ s written decision issued on September 13, 2012.

For the reasons set out below, the court concludes that the form of order proposed by the Edmonton Flying Club best reflects the court ’ s decision. [ 2 ] The first contested issue is whether the order should include a stay of the Airco and Morningstar actions or a reference in the

preamble to the positions taken by Airco and Morningstar.

In concluding that it should not, I have taken the following into account: - no one asked for a stay of those proceedings; - I did not mention the granting of a stay in my decision; - reference in the decision to the positions of Airco and Morningstar was, in my view, necessary to demonstrate that, in light of the positions taken by those parties, the granting of the remedy requested by the Flying Club would not cause chaos in the management of the multitude of related proceedings; - where a written decision provides the basis for an order, that decision, rather than an inevitably abbreviated preambular comment, is a better source for information about the context for the order; and, - the respondents ’ submissions do not persuade me that a new reference to a stay should now be inserted into the order: the situation post-decision will allow any party who feels aggrieved by any action taken in the Airco or Morningstar actions to promptly apply to the court if and when a problem arises for a stay of those proceedings. [ 3 ] The second contested issue is whether the order should take into account the court ’ s conclusion about the effect on its September 13, 2012 decision of the City of Edmonton ’ s decision, on October 5, 2012, to serve a notice of intention to expropriate the interests of the Flying Club, and others, in the Edmonton City Centre Airport lands.

In concluding that it should not, I have taken the following into account: - although the law allows a court to vary its order before it is entered, which authority is reflected in Rule 9.13, as the respondents ’ own reference to Becker v Alberta (Director of Employment Standards) 2003 ABCA 130 illustrates, that power should not be lightly exercised; - the City ’ s decision to commence expropriation proceedings is, undoubtedly, a major and material new development.

Even assuming that this potential major development need not have been brought to the court ’ s attention during the hearing of the Flying Club ’ s application, which began on June 27, 2012 and concluded on August 10, 2012 and during the course of which the City took the position

that its announcement that it would close the City Centre Airport at some time in the future was still too nebulous to ground any relief for the Flying Club since the Club ’ s lease might still run its course, because the court ’ s decision of September 13, 2012 was only an interlocutory decision, the City of Edmonton ’ s application to vary that decision based on the intention to expropriate, can still be heard in a special chambers hearing as a normal application to vary an existing interlocutory decision based on a material change of circumstance.

The court ’ s decision of September 13, 2012 was not a final decision or judgment in the matter; unless a final judgment is varied or struck before it is entered, it can only be appealed. However, an interlocutory order can easily be varied if material new circumstances justify a variance; there is no need to take the extraordinary measure proposed by the respondents of having a new hearing, on new information, under the rubric of the old application. Indeed, the City has, properly, filed a motion on October 19, 2012, to vary the September 13, 2012 decision.

As a practical matter, the City ’ s application could not be heard on October 25, when the City made it returnable as an accompaniment to the application to settle the minutes of the order.

This major new development will have to be argued at a special chambers hearing because it raises, at the least, issues of paramountcy, timing and propriety of an expropriating authority ’ s exercise of its authority to protect itself from its own contractual obligations, all of which will require some time to explore; and, - part of the court ’ s concern in its September 13, 2012 decision was that any right of the Flying Club to have the benefit of its lease through to the expiry of the lease might become moot if its claim for injunctive relief were not heard as soon as it fairly could. [ 4 ] The third contested issue is whether this court should, pursuant to the provisions of Rule 508 and on the common understanding amongst the parties and the court that, pursuant to the provisions of Rule 508(3) a refusal by me, as the judge appealed from, will not prevent the respondents from applying for a stay to the Court of Appeal, issue a stay of its decision of September 13, 2012 to allow the City to appeal that decision.

In concluding that I should not grant such a stay, I have taken the following into account: - the City has not yet appealed my decision; - although I am in the worst possible position to assess the correctness of my decision - which is the reason why the Rule allows an application to be made to the Court of Appeal - the decision represents my best understanding of the evidence and the law. [ 5 ] If the parties are not agreed on the costs of the October 25 application, I may be spoken to within 30 days of the release of this decision. Heard on the 25 th day of October, 2012.

Dated at the City of Edmonton, Alberta this 26 th day of October, 2012. J.B. Veit J.C.Q.B.A. Appearances: Jack N. Agrios, Q.C. for Edmonton Flying Club and 1222663 Alberta Ltd., Morningstar Air Express Inc., Morningstar Partners Ltd. and Morningstar Air Corporation Grant S. Dunlop, Stephanie A. Wanke, Ogilvie LLP

for the Edmonton Regional Airports Authority Kim Fallis-Howell, for the City of Edmonton Fred Kozak, Q.C., RMRF LLP for Airco Aircraft Charters Ltd. Stephen Livingstone, McLennan Ross LLP for Shell Canada Limited and Shell Canada OP Inc.