Cooper v. Ganter, 2012 ABQB 695

Court of Queen ’ s Bench of Alberta Citation: Cooper v. Ganter, 2012 ABQB 695 Date: 20121123 Docket: 0713 11300 Registry: Fort McMurray Between: Gary Cooper and Marvin Boucher Plaintiffs - and - Brenda Ganter as Personal Representative of Bertha Ganter, deceased, Stephen Ganter, and Her Majesty The Queen in Right of the Province of Alberta Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A. G. Park _______________________________________________________ Judgment [ 1 ] The Defendant, Her Majesty the Queen in Right of the Province of Alberta, (the Crown), applied for

summary judgment to dismiss the Plaintiffs’ action as against it. The Crown argued there is no merit to the Plaintiffs’ claim. Rather it submitted the Amended Statement of Claim seeks a public law remedy in the nature of a writ of mandamus against it. The Crown noted a writ of mandamus must be pursued under the provisions of a judicial review as set out under the Alberta Rules of Court . The Crown further submitted any such judicial review now is limitation barred by the six month limitation period as set out under Rule 3.15.

The Crown’s position is based upon the original Statement of Claim being filed on March 17, 2007, at least some 16 months after the Plaintiffs became aware of the Crown decision affecting them.

[ 2 ] In addition the Defendant, Brenda Ganter as Personal Representative of Bertha Ganter, deceased, and the Defendant, Stephen Ganter, brought an application for

summary judgment to dismiss the claims of the Plaintiffs against each of them. I will provide my decision on those applications after I have provided my reasons on the Crown’s application. Facts [ 3 ] The Crown through the Government of Alberta Ministry of Sustainable Resource Development, Fish and Wildlife Division, grants licenses for Registered Fur Management Areas (RFMA) throughout the Province of Alberta. One such Registered Fur Management Area is described as RFMA 2006.

It encompasses an area 2 miles wide and 36 miles long, located on the east side of the Athabasca River, directly across from Fort McKay, between Shell Albian Sands and Suncor Energy. [ 4 ] A license allows the qualified Registered Fur Management (Senior Holder) to hunt fur-bearing animals in the RFMA for a definite number of years. The license is issued under and is subject to the provisions of the Wildlife Act , R.S.A. 2000, c W-10 and the Wildlife Regulations thereunder. [ 5 ] RFMA 2006 has been held in the family of the Plaintiff, Marvin Boucher (Boucher) for many years. It has significant Native history.

It was originally granted to Boucher’s grandfather and later passed to his father. In 1990 Boucher’s mother became its holder. On October 1, 1997 Boucher became the license holder. He hunted and trapped in the area with the Plaintiff, Gary Cooper, (Cooper) whom he named as his junior partner with the Crown’s Fish and Wildlife office in the City of Fort McMurray. [ 6 ] On January 7, 1999 Boucher executed a relinquishment of RFMA 2006 to Bertha Ganter, his sister. The Fish and Wildlife Division relinquishment form indicated Boucher only relinquished the license to Bertha Ganter.

On January 22, 1999 Bertha Ganter completed the Trapper Data Sheet and was deemed eligible to be awarded the license as the senior holder until June 30, 2003, subject to renewal before June 30 th of each year in the interim. She held the license until her death on May 22, 2004.

She did not transfer RFMA 2006 through her estate. [ 7 ] Brenda Ganter is the daughter of Bertha Ganter and is the personal representative for the estate of Bertha Ganter. [ 8 ] The Crown adopted the position that upon Bertha Ganter’s death the license for RFMA 2006 became vacant and was available for issue to a new individual upon successful completion of the application process. It undertook the process of issuing a new license for RFMA 2006. [ 9 ] On August 11, 2004 the Crown (Fish and Wildlife Division) sent a letter to the Fort McKay First Nation.

It recommended Brenda Ganter to be designated as the senior holder. Chief Jim Boucher of the Fort McKay First Nation responded orally on November 5, 2004. He recommended Boucher as the senior holder. Subsequently Chief Jim Boucher confirmed Boucher’s recommendation in a letter of January19, 2005 to the Crown. [ 10 ] The Crown did not act upon the recommendation. Instead it held a competition for the license. Four persons of Treaty Indian status from the Fort McKay First Nation applied. They were Boucher, Cooper, Brenda Ganter and the Defendant, Stephen Ganter. Stephen Ganter is the brother of Brenda Ganter.

All applicants had trapping experience and the necessary trapping equipment. Although Cooper had the highest score of the four individuals on a trapline application rating form, it was determined by the Crown his application should be refused due to previous multiple convictions under the Wildlife Act and further due to his physical condition. In turn the Crown recommended Stephen Ganter to be the senior holder of RFMA 2006.

Stephen Ganter had the second highest score of all of the applicants and was the son of the deceased senior holder, Bertha Ganter. [ 11 ] On April 18, 2005 the Crown sent a letter to Stephen Ganter indicating he, as the successful applicant became the senior holder of RFMA 2006.

[ 12 ] In October 2005 each Plaintiff learned he was not the successful applicant. [ 13 ] Boucher gave evidence in an examination for discovery that he relinquished the RFMA 2006 solely for the purpose of having Bertha Ganter negotiate with oil companies respecting leases and other legal documentation which had been presented to him previously as the senior holder. Boucher testified he could not read or write. He advised he and Bertha Ganter had an agreement that RFMA 2006 was to be held in trust by her for his benefit and that upon anything happening to her, it would be returned to him.

He testified Bertha Ganter wrote a letter, which he could not read, due to his illiteracy but which he, nevertheless, signed. The letter indicated if anything happened to her, he would receive RFMA 2006 from her. He testified “some young Fish and Wildlife guy signed the letter.” Boucher could not recall the name of the officer. He advised under oath that after his sister’s death he attended the office of Fish and Wildlife, but there was no copy of the letter to be found.

He further indicated he could not find a copy of the letter in his possession. [ 14 ] In the Crown documentation there are “logged notes” concerning RFMA 2006. The logged notes set out on September 15, 2004 Boucher called registering his concern regarding RFMA 2006. The log stated: 2004/09/15 Call from Marvin Boucher @ 1130 hrs. Concerned over who is receiving this line. Insists that when he signed over the RFMA to Bertha, An (sic) sworn document was completed that if anything happened to Bertha, Marvin would get the line back. Insists the band, Chief and Council has dropped off a letter.

He will be in on Monday 20 th to straighten things out. [ 15 ] The original Statement of Claim was filed on March 17, 2007. An Amended Statement of Claim was filed on March 21, 2012. The relevant paras. respecting the alleged cause of action state: 3. The Defendant, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ALBERTA, has as one of its Ministries, the Ministry of Sustainable Resource Development, which is responsible for fish and wildlife management in the Province of Alberta and includes the administration of traplines. ... 8.

At some point in the early 1990's, MARVIN BOUCHER registered trapline no. 2006 in the name of his Sister, BERTHA GANTER, for the purpose of having BERTHA GANTER negotiate leases on the trapline with various oil companies and to assist the Plaintiffs in dealing with the various oil companies operating on the trapline It was agreed between the Plaintiffs and BERTHA GANTER that if something should happen to her and she should die, the trapline would be placed back in the name of MARVIN BOUCHER The Plaintiffs state that BERTHA GANTER held the trapline in trust for the Defendants, pursuant to an agreement between STEPHEN GANTER AND BERTHA GANTER . 9.

Since BERTHA GANTER's death, the Defendants have demanded that the trapline be returned to them as had been agreed between them and BERTHA GANTER However, the Defendants have refused to place the trapline back in the name of the Plaintiffs. 10. BERTHA GANTER died in May of 2004, her estate was later probated and BRENDA GANTER was appointed as the adminstratrix of the estate The Will of BERTHA GANTER makes no reference to the trapline. 11.

In or near about August of 2009, a Fish and Wildlife Officer in Fort McMurray, Alberta and/or his representative, declared that the trapline no. 2006 was vacant, invited applications, and thereafter awarded the rights to the trapline to the Defendants, (sic) STEPHEN GANTER. [ 16 ] The Amended Statement of Claim seeks the following relief against each of the Defendants:

a) An Order directing that trapline no. 2006 located at Fort McKay, in the Province of Alberta be returned to the name of MARVIN BOUCHER;

b) An Order directing that the Fish & Wildlife Office in Fort McMurray, in the Province of Alberta record MARVIN BOUCHER as the legal title holder or owner of trapline no. 2006;

c) A declaration that the right to possession of trapline no. 2006 was not transferred to STEPHEN GANTER through the Will of BERTHA GANTER;

d) An Order that the Defendants account to the Plaintiffs for all monies obtained from the trapline from May of 2004 to the present;

e) A Judgment in the sum equal to the monies taken from the trapline since May of 2004;

f) Costs of this action;

g) Such further and other relief as this Honourable Court deems fit to grant. Reasons [ 17 ] The Amended Statement of Claim only identified the Crown as being responsible for the management of fish and wildlife and the administrator of traplines in Alberta. It seeks relief against the Crown by virtue of a requested Order directing RFMA 2006 be returned to the name of Boucher and the Crown record Boucher as the legal title holder or owner of RFMA 2006.

It seeks an Order that the Defendants account to the Plaintiffs all of the monies obtained from the trapline from May 2004 to the present and a judgment accordingly. The latter relief respecting the monies cannot be obtained from the Crown in that the Wildlife Act bars any right of action or compensation against the Crown. [ 18 ] The legislation (the Wildlife Act ) provides the Minister with discretion to issue RFMA licenses to qualified individuals. Qualification requires the individual to be an Alberta citizen who has obtained a satisfactory mark in an examination.

The legislation makes it clear that an RFMA is not transferrable unless and except to the extent provided. Correspondingly the regulations to the Wildlife Act recognize the RFMA license holder can relinquish it in writing or it can be revoked by the Minister’s nominated official. [ 19 ] Rule 3.2(2)(

c) of the Alberta Rules of Court states:

(2) A statement of claim must be used to start an action unless ... (

c) a decision, act or omission of a person or body is to be the subject of judicial review, ... [ 20 ] Rules 3.15(1) and 3.15(2) state: 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review:

(

a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (

b) a declaration or injunction.

(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period. [ 21 ] Rule 1.5(1)(

a) and (

b) states: 1.5(1) If a person contravenes or does not comply with these rules, or if there is an irregularity in a commencement document, pleading, document, affidavit or prescribed form, a party may apply to the Court (

a) to cure the contravention, non-compliance or irregularity, or (

b) to set aside

an act, application, proceeding or other thing because of prejudice to that party arising from the contravention, non- compliance or irregularity. [ 22 ] Rules 7.3(1)(a)(b)(c), (2) and (3) state: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require.

[ 23 ] In this application the Plaintiffs argued the Amended Statement of Claim alleges a constructive or express trust by virtue of the “letter” which Bertha Ganter signed, returning RFMA 2006 to Boucher should anything happen to her. As a result when she died, it is the Plaintiffs’ position RFMA 2006 should have been returned to Boucher and should not have reverted to the Minister. The Plaintiffs further referenced the Fish and Wildlife Division Standards and Procedures Manual, effective September 15, 1992 which states in

Section 1: INTENT TO PROVIDE A CONSISTENT MEANS OF ESTABLISHING THAT A REGISTERED FUR MANAGEMENT AREA IS VACANT. 1. A Registered Fur Management Area becomes vacant when: ... 1.3 the senior holder is deceased and no spouse or immediate family member wishes to take over the area; or 1.4 the Minister exercises his authority not to renew. [ 24 ] Accordingly the Plaintiffs pointed to Boucher’s desire to take over RFMA 2006 after Bertha Ganter’s death.

The Plaintiffs argued the existence of the Bertha Ganter letter and Boucher’s express wishes given to the Crown on September 15, 2004 by telephone call meant that RFMA 2006 never became vacant within the definition of the Standards and Procedure Manual. As a result the Plaintiffs argued the Crown was in error in reaching its two-fold decision that RFMA 2006 became vacant upon Bertha Ganter’s death; and a competition should be held amongst her immediate family members to determine who qualified to be awarded RFMA 2006.

In this regard the Plaintiffs noted the essence of their claim is contained in paras. 8 and 9 of the Amended Statement of Claim. Their claim is that the Crown’s treatment of RFMA 2006 as being vacant and its actions in awarding RFMA 2006 to Stephen Ganter should not have taken place. The Plaintiffs noted the Crown by virtue of Boucher’s letter agreement with Bertha Ganter was aware of Boucher’s claim before RFMA 2006 was held to be vacant. As a result the Plaintiffs’ submitted there is evidence to support two genuine issues for trial emanating from paras. 8 and 9 of the Amended Statement of Claim.

However those two genuine issues advanced by the Plaintiffs do not impact the Crown as paras. 8 and 9 do not seek a private law remedy applicable against the Crown. [ 25 ] The Plaintiffs further submitted there is another genuine issue for trial, namely whether the Crown was reckless or willfully blind with respect to the existence of the trust. However in my opinion there is no genuine issue for trial in that submission. The Plaintiffs never pleaded in the Amended Statement of Claim that the Crown was reckless or willfully blind respecting the existence of any trust.

Further the Crown is not named as a stranger to the trust. In argument the Plaintiffs cited in support of their position the Alberta Court of Appeal decision in Sorrel 1985 Limited Partnership v. Sorrel Resources Ltd. , 2000 ABCA 256 . In that case the Court of Appeal discussed the issue of whether a stranger to a trust will be held liable for the breach of that trust. At para. 46 Picard, J. A. for the Court stated as follows: 46 In

summary, following Air Canada , in a case of knowing assistance, the stranger to the trust must have knowledge of the trust and of what is being improperly done. That knowledge should be actual, although recklessness or wilful blindness will suffice. Constructive knowledge will normally not be enough. [ 26 ] In addition to not being pleaded, there was no evidence placed before me that the Crown, as a stranger to the trust, had actual knowledge of the trust between Bertha Ganter and Boucher (as alleged by Boucher).

There is some evidence that Boucher telephoned on September 15, 2004 to the offices of Fish and Wildlife and made some reference to his agreement with Bertha Ganter. But Boucher did nothing further to produce or identify this agreement. Indeed it is yet to be found as of today’s date. Finally, even the letter of Chief Boucher of December 13, 2004 to Fish and Wildlife referenced the Crown’s knowledge that trapline (RFMA 2006) had been vacant for some time. Nor is there any evidence placed before me that the Crown had any knowledge that anything was being improperly done.

Rather it acted according to the legislation, the regulations and its own manuals and procedures. It had no actual knowledge of any impropriety. There was no evidence of any recklessness or wilful blindness. At best the Plaintiffs might argue the Crown had constructive knowledge but constructive knowledge is not enough in these circumstances.

[ 27 ] Finally the Plaintiffs submitted the remedy of a declaration as sought in the Amended Statement of Claim is one of those situations to which Rules 3.15(1) and (2) do not apply. As a result they argued there is no time limitation of six months. [ 28 ] It is evident the nature and substance of the relief sought by the Plaintiffs in the Amended Statement of Claim is setting aside the Crown’s administrative decision declaring RFMA 2006 vacant and awarding it to a successful applicant after a competition. The relief sought challenges the validity of the Crown’s decision.

However the actual remedy sought by the Plaintiffs is not applicable to the Crown as the remedy seeks a declaration that the right to possession of RFMA 2006 was not transferred to Stephen Ganter through the will of Bertha Ganter. [ 29 ] The remedy sought by the Plaintiffs is that of a declatory judgment which seeks consequential relief. But consequential relief cannot be granted.

See Jones and de Villars, Principles of Administrative Law , 4 th ed. (Scarborough, Ontario: Thomson Carswell, 2004) at p. 755: A declaration, or declaratory judgment, is a judgment of a court of law which determines the legal position of the parties or the law applicable to them. It is an unusual remedy in that is it not coercive in nature as no consequential relief is granted. As a result, there is no penalty or sanction to be imposed on a defendant for failing to act on the declaration.

It can be contrasted with an executory judgment of a court, one in which “the court declares the respective rights of parties and then proceeds to order the defendant to act in a certain way, for example to pay damages or to refrain from interfering with the plaintiff’s rights.” Non-compliance with such a judgment can lead to enforcement proceedings. [ 30 ] In effect the Plaintiffs seek to set aside the Crown’s decision and replace it with an Order placing the RFMA 2006 in the name of Boucher as the legal title holder. The Plaintiffs seek a public law remedy of review of the Crown decision.

Further the Amended Statement of Claim does not seek a private law remedy against the Crown as it does not allege any tort or wrongful cause of action committed by the Crown or a Crown officer. [ 31 ] For the Plaintiffs’ claim to enjoy any success it is my view the Bertha Ganter letter must be shown to exist or have existed. Further it must be shown the letter expressed her wish to have RFMA 2006 returned to Boucher upon “anything happening to her”. Finally the Plaintiffs must demonstrate the Crown was aware of the letter and its contents at some time before it opened the competition for the RFMA 2006 vacancy.

Such evidentiary foundations might support the Plaintiffs’ contention that the RFMA 2006 never became vacant and the Crown was in error in declaring it vacant and holding a competition amongst Bertha Ganter’s immediate family members. [ 32 ] However such an attack upon the Crown’s decision forms the basis of a judicial review. The issues raised by the Plaintiffs in their submissions in this application must be determined by a judicial review. The nature of the relief sought by the Plaintiffs in paras. (

a) and (

b) of the Amended Statement of Claim takes the form and substance of a writ of mandamus.

Mandamus is defined by Black’s Law Dictionary (9 th ed. 2009) as “a writ issued by a superior court to compel a lower court or government officer or body to perform the act demanded.” • Black ’s Law Dictionary , 7 th ed. sub verbo “Mandamus” (Westlaw) [ 33 ] As an aside to my earlier stated position that the declaration sought by the Plaintiffs as a remedy in para. “c” of the Amended Statement of Claim was not a declaration applicable to the Crown, I note the facts as presented in argument in this application do not demonstrate that the license for RFMA 2006 was transferred to Stephen Ganter through the will of Bertha Ganter.

Accordingly insofar as the Crown’s position is concerned, there is no need for such a declaration even in a judicial review. The license was awarded to Stephen Ganter by the Crown in an open competition in which the Plaintiffs were applicants. [ 34 ] In

summary the true nature of the claim and relief sought against the Crown in the Amended Statement of Claim is a public law remedy. The Plaintiffs’ action is properly an action for judicial review with respect to the Crown’s decision. A judicial review is

subject to the six month limitation period in Rule 3.15. The six month limitation period expired approximately six months after both Plaintiffs learned of the Crown’s decision in October 2005. The Statement of Claim was filed on March 17, 2007 which is approximately 16 months after they discovered the Crown’s decision.

Whether the limitation period begins to run from the date of the Crown’s decision (April 18, 2005) or begins to run from the date of discoverability of the decision, the filing of the Statement of Claim is clearly outside the six month limitation for filing a judicial review. [ 35 ] I note I have some discretion under Rule 1.5(1) to convert the Amended Statement of Claim to an originating application for judicial review. I decline to exercise this discretion as there was no application by the Plaintiffs for such relief.

Further to do so would circumvent the operation of the six month limitation period for judicial review under Rule 3.15. With respect to the Crown the Plaintiffs are not seeking a broad

interpretation of their legal position (declaratory relief) but rather in essence they seek to challenge and set aside the Crown’s administrative decision. [ 36 ] The Crown has met the high onus of establishing there is no merit to the Plaintiffs’ claims against it. There are no genuine issues for trial in the Plaintiffs’ action commenced by Statement of Claim against the Crown and their claim has no reasonable prospect of success in its present nature and form against the Crown. [ 37 ] As noted earlier the remaining Defendants brought an application for

summary judgment against the Plaintiffs. In oral reasons provided at the conclusion of oral argument by all counsel in this application I granted

summary judgment not only to the Crown but to Brenda Ganter as Personal Representative of Bertha Ganter, deceased, and Stephen Ganter, both as against Cooper. I held Cooper should not be a party to this action. His claim is not meritorious against any of the Defendants. Cooper was not a party to the alleged trust agreement. At best, he was Boucher’s junior partner in RFMA 2006 before Boucher relinquished it to Bertha Ganter. Cooper admitted in his Examination for Discovery that he had no rights. On the evidence he was never registered with the Crown respecting RFMA 2006.

The legislation and regulations set out that it is the senior partner who has any rights or standing vis-a-vis the Crown in any RFMA. Any potential claim of Cooper would be against Boucher should Boucher succeed in regaining RFMA 2006 and should Boucher not make him a junior partner. There is no merit to his claims against all of the Defendants and there are no genuine issues for trial. The Defendants have met their high onus in their applications and each is granted

summary judgment against Cooper. His claim against each of the Defendants is dismissed. [ 38 ] The applications for

summary judgment against the claim of Boucher by the Defendants, Brenda Ganter, as Personal Representative of Bertha Ganter, deceased, and Stephen Ganter are dismissed. There is a genuine issue for trial on the evidence that either an express or a constructive trust agreement existed between Bertha Ganter and Boucher. There is possible merit to Boucher’s claim against each of those Defendants. Boucher’s claim against those Defendants must be heard and determined by a trial judge. [ 39 ] Counsel may make an appointment with me to speak to costs if necessary. Heard on the 05 th day of October, 2011.

Dated at the City of Fort McMurray, Alberta this 8 th day of November, 2012. A. G. Park J.C.Q.B.A. Appearances:

Greg J. Lintz Tarrabain & Company for the Plaintiffs Cyril Bright Aurora Law Group for the Defendants John-Marc Dube Alberta Justice Legal Services for the Defendant Her Majesty the Queen in Right of the Province of Alberta for the Third Party