Samborski Environmental Ltd v Date:, 2020 MBCA 63

Citation: Samborski Environmental Ltd v Date: 20200611 The Government of Manitoba et al, 2020 MBCA 63 Docket: AI19-30-09380 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : samborski environmentAL ltd. ) D. G. Hill and ) B. A. Steidl ( Plaintiff ) Applicant ) for the Applicant ) - and - ) D. G. Guénette ) for the Respondents the government of manitoba, ) dAN m c innis, DON LABOSSIERE ) Chambers motion heard: and TRACEY BRAUN ) January 30, 2020 ) ( Defendants ) Respondents ) Decision pronounced: ) June 11, 2020 beard JA I.

THE ISSUES [ 1 ] This is a motion by the plaintiff, Samborski Environmental Ltd. (Samborski Environmental), pursuant to r 42 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R (the CA Rules ), for an extension of time to file and serve a notice of appeal, which is opposed by the defendants. This motion raises two issues: (

i) Is the appeal moot because Samborski Environmental failed to obtain the required leave to appeal from the judgment of the motion judge under section 90(1) (

a) of The Court of Queen’s Bench Act , CCSM c C280 (the QB Act ) (regarding an order made with the consent of the parties)? (ii) If the judgment is appealable without leave, should the time to file and serve the notice of appeal be extended? Note: The document under appeal is entitled a judgment, while

section 90 of the QB Act refers to an appeal of a consent order. By definition, an “order” includes a “judgment”; therefore,

section 90 would apply to both an order and a judgment (see

section 1 of the QB Act ; and r 1.03 of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 ). II. THE FACTS [ 2 ] Samborski Environmental has filed a civil suit against the defendants, claiming only damages arising from the failure by the defendants to disclose the existence of an environmental licence issued in 1990 to a former owner of the property at issue.

The property is located in the Rural Municipality of Macdonald (the RM), at the corner of the Perimeter Highway and Brady Road (the property). [ 3 ] According to Samborski Environmental’s statement of claim, at all times relevant to this appeal, it had an interest in the property by way of an option to purchase, and it was trying to obtain the necessary approvals to operate a composting facility on the site. [ 4 ] Samborski Environmental began the process of obtaining approvals in 2009, but that process required it to obtain both an environmental licence from the Province of Manitoba and the consent of the RM.

It alleges that the defendants maintained that the environmental licence could only be granted if the consent of the RM was first obtained. Samborski Environmental took a number of steps and expended funds over a number of years in dealing with both levels of government, but was never able to obtain the required approvals. [ 5 ] Samborski Environmental alleges that the RM had given its consent to a composting project on the property by way of a by-law passed in June 1990 and a subsequent development agreement with the then owner of the property.

The RM rescinded the by- law in 2015. [ 6 ] In March of 2016, an employee of Samborski Environmental discovered that, on August 27, 1990, a licence to compost

on the property had been granted pursuant to The Environment Act , CCSM c E125 , being licence 1401. [ 7 ] Samborski Environmental alleges that the defendants were negligent in failing to advise it that an environmental licence had already been granted, thereby causing it damage. Alternatively, it alleges that the failure to advise it of the licence constituted a breach of statutory duty, which caused it damage. [ 8 ] While the claim and defence raise a number of issues, the parties agreed that the key issue was the validity of licence 1401, so they agreed to bifurcate the proceedings and have this issue determined first. The defendants filed a motion for

summary judgment to dismiss the claim, and the motion judge set out the issue before her as follows ( 2019 MBQB 113 at para 5 ): The third issue before me concerns the Licence. Counsel agreed that its validity is a threshold issue that should be determined prior to the hearing of the Government’s

summary judgment motion dismissing the Samborski Action. If the Licence is valid, the Government’s

summary judgment motion will proceed. If it is not valid, Samborski acknowledged that there is no issue requiring a trial in the Samborski Action. . . . I agreed to proceed on this basis, which is an efficient and expeditious approach. [ 9 ] The motion judge found as follows (at para 53): The Licence was not valid in March 2016 because it was issued to Campbell’s [Campbell’s Garden Supplies Ltd.] in respect of a development that did not proceed. The Licence did not run with the Property and the development was not acquired by Zettler [Vince James Zettler].

After Campbell’s abandoned the development, the Licence was cancelled or revoked. [ 10 ] Samborski Environmental wants to appeal the finding that the licence is no longer valid. For a number of reasons, it failed to file its notice of appeal within the required time, so it filed this motion to extend the time limit for commencing an appeal. The defendants oppose the motion, arguing that it is moot because the entire action was dismissed by consent. Their position is that leave of the motion judge under section 90(1)(

a) of the QB Act is required before an appeal can be commenced and Samborski Environmental has not obtained that leave. They also take the position that, even if this Court has jurisdiction to hear the appeal, there is no arguable merit to the appeal, so leave should not be granted. III. SECTION 90(1)(

a) Background [ 11 ] Following the release of the motion judge’s reasons, the parties agreed to the following order, which was signed by the motion judge: THIS COURT ORDERS THAT: a. Environmental Licence No. 1401 dated August 27, 1990, issued under The Environment Act , is not valid and was not valid in March 2016. b. The within action is dismissed. c. By consent, costs will be paid in accordance with the attached Bill of Costs. August 23, 2019 “Grammond J” CONSENTED AS TO FORM, AND AS TO FORM AND CONTENT FOR PARAGRAPH “b.” [ 12 ] Both parties, through counsel, signed this consent.

The Parties’ Positions [ 13 ] The defendants take the position that, because Samborski Environmental consented to the dismissal of the action, as evidenced by its consent “ AS TO FORM AND CONTENT ” on the judgment, it requires leave to appeal that provision.

They argue that an appeal of only the finding that the licence was invalid (paragraph a of the judgment) would have no effect without also appealing the dismissal of the action (paragraph b of the judgment), because the dismissal would remain in effect and the action would still be at an end. [ 14 ] The defendants state that there was true consent to paragraph b of the judgment, Samborski Environmental’s purpose being to obtain a final judgment so that it could proceed to an appeal. That final judgment was available only because the defendants consented.

Without a final judgment, Samborski Environmental risked being unable to appeal what would have been an interim order, noting that appellate courts can exercise discretion and refuse to hear an appeal from an interim order.

[15] Samborski Environmental argues that, notwithstanding the wording of the judgment, it was not a consent order within themeaning of section 90(1)(a); rather, it was an acceptance of the inevitable outcome of the litigation, given the ruling on the validity of thelicence. Samborski Environmental denies the defendants’ argument that it is not seeking to appeal the dismissal of the action.

Itsposition is that the judgment dismissing the action is tied to the determination of the validity of the licence, so that a finding on appealthat the licence is valid will result in the action being continued and the dismissal being set aside. The Law [16] The relevant sections of the QB Act state: Appeal to Court of Appeal 89 Unless otherwise provided by statute, (

a) an order made by the court may be set aside in whole or in part or varied; and (

b) a verdict of a jury may be set aside in whole or in part on appeal to the Court of Appeal. Consent order, costs not appealable 90(1) An order that is made (

a) with the consent of the parties; or (

b) as to costs only; is not subject to an appeal except by leave of the judge making the order. [17] Statutory provisions like section 90(1)(

a) have a very long history, having been modeled on legislation from the UnitedKingdom (see the Supreme Court of Judicature Act 1873 (UK), 36 & 37 Vict, c 66,

section 49; see also The Ontario Judicature Act,1881, SO 1881, c 5,

section 32; and The Queen’s Bench Act, 1895, SM 1895, c 6,

section 47). Jurisprudence addressing the right toappeal a consent decree dates back as early as Webb v Webb (1676), 3 Swans 658, 36 ER 1011 (KB (Eng)). The underlying rationale isexplained in Donald Brown’s text, Civil Appeals (Donald JM Brown with the assistance of David Fairlie, Civil Appeals (Toronto: Thomson Reuters, 2019) vol 2 (loose-leaf release 2020-2), ch 4 at para 4:7000): In all jurisdictions, leave to appeal is required from an order made on consent, . . . in some instances to be given by the judge or courtmaking the consent judgment. . . .

The underlying rationale for requiring leave would appear to be that a consent order is a contract ofthe most formal nature, . . . made in the context of adversarial judicial proceedings. Accordingly, . . . the same principles applicable tocontracts are applied, and leave to appeal is unlikely to be granted unless the consent judgment was obtained by fraud, duress, mistake orsome other vitiating circumstance. . . . [18] This raises the question of what constitutes a consent judgment or order.

Lord Denning MR explained as follows in SiebeGorman & Co Ltd v Pneupac Ltd, [1982] 1 All ER 377 (CA (Eng)) (at p 380): . . . It should be clearly understood by the profession that, when an order is expressed to be made “by consent”, it is ambiguous. There are two meanings to the words “by consent” [citation omitted]. One meaning is this: the words “by consent” may evidence a realcontract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with anyother contract.

The other meaning is this: the words “by consent” may mean “the parties hereto not objecting”. In such a case there isno real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that ismade by the court without the consent of the parties. In every case it is necessary to discover which meaning is used.

Does the orderevidence a real contract between the parties? . . . (See also Fott v Fott, 2001 ABQB 327 at para 16; and Buschau v Rogers Communications Inc, 2004 BCCA 142 at paras 22-25.) [19] These principles are clearly embodied in the earlier decision of Royal Bank of Canada v Skene and Christie (1919), (SCC), 59 SCR 211. In that decision, the trial judge had pronounced a judgment on certain contested matters and directed areference to work out the judgment and, in particular, the dollar value of the judgment.

Based on the trial judge’s ruling on the contestedmatters, the parties were able to work out the dollar value without proceeding to a reference, and they incorporated both the trial judge’sruling and the agreed value of the judgment into one order. When one party applied to appeal the order, the other replied that the

ultimate order was by consent so that leave to appeal was required. [20] The majority rejected that position. Duff J, for the majority, stated (at pp 214-15): . . . It was not only understood but expressly stated that it was Mr. McMullen’s intention to appeal from the adjudication of thelearned trial judge, that is to say, from the principle of the judgment.

The findings, of course, in so far as they rested upon the report ofthe architects or upon the calculations of the solicitors themselves were the necessary result of the adjudications of the trial judge andmust stand or fall with those adjudications. (See also The Sun Life Assurance Company of Canada v Elliott (1900), (SCC), 31 SCR 91 at 97.) [21] In Delancey v Dale & Co (1959), (NS CA), 20 DLR (2d) 12 (NS SC in banco), the order in questionwas stated to be on consent. Ilsley CJ, for the majority, stated (at pp 23-24): . . . In Lund v.

Walker (SCC), [1931], 4 D.L.R. 81, S.C.R. 597, an Ontario case which reached the Supreme Court ofCanada, Anglin C.J.C. said at p. 84 D.L.R., p. 605 S.C.R. that “the authorities (are) to the effect that the form of a judgment is notnecessarily binding upon the Court and may be gone behind for the purpose of ascertaining the true facts”. He was referring tojudgments which did not show on their face consent but nevertheless are consent judgments.

I think, however, that the reverse would betrue and that an order indicating on its face that it is by consent may be gone behind for the purpose of ascertaining whether in fact it is aconsent order and what was really meant by the words “consented to”. (See also Kitchen v Crown Coal Co, (AB CA), [1932] 2 DLR 268 at 275 (Alta SC (AD)).) [22] Finally, I refer to Pelrine v Arron et al (1969), (NS CA), 3 DLR (3d) 713 (NS SC (AD)). Therespondent argued that the order was signed by counsel under the notation “consented to”; therefore, it was a consent order that estoppedthat party from appealing (at p 717).

The Court, in rejecting that argument, stated (at pp 718-19): In the order before us, there is no recital of consent between the parties, and there is nothing in the record to suggest that there wasanything in the nature of an agreement between the parties. The Annual Practice, 1952,

Part IX, Div. 1, s. 31, Restrictions on appeals, includes the following at p. 3172: “By consent of Parties.” – To constitute consent, there must be a bargain between the parties, not mere acceptance by the appellant ofan order offered by the Court (Aldam v. Brown, [1890] W.N. 116; Hadida v. Fordham, 10 T.L.R. 139). Where the consent was notgiven to the order, but only to shortening the procedure by agreement that the Court should proceed “as if a case had been stated”, theright of appeal from the order on the merits was not lost. Low v. General Steam, etc., Ltd., [1909] A.C. 523.

In the case above, which is listed in the reports as, Low or Jackson v. General Steam Fishing Co., Ltd., and which appeal was tried bythe House of Lords, it was contended that where jurisdiction is given by consent there is no appeal. However (p. 528), “The House wasunanimously of [the] opinion that the appeal was not incompetent on the ground that what was done was merely done to abbreviate theprocedure and save expense.” It appears to me that the “consent” given to the order which we have under consideration was given for the same purpose, namely, toshorten the procedure and save expense.

There is no suggestion herein that the “consent” indicated an agreement between the partiesconcerning issues. . . . Nevertheless, counsel should be cautioned about giving “consent” to orders where the intent is merely to “consent as to form”. Where “consent” alone is indicated on the order, there is a presumption of an agreement between the parties and further inquiry isnecessary if the presumption is to be discharged. This involves taking up the time and attention of the Court and counsel, which wouldnot be necessary if the proper inscription was indicated on the order in the first instance. [23] In

summary, the law is that leave of a judge or court is required to appeal a consent order. The reason is that a consentorder embodies an agreement between the parties, and that agreement, being a contract, should only be set aside on the same basis as anyother contract, including misrepresentation, fraud, duress and undue influence.

A simple change of mind or “buyer’s remorse” is notsufficient. (See Re Kline, (NS CA), [1924] 1 DLR 295 (NS SC en banc); Ruffudeen-Coutts v Coutts, 2012 ONCA 65at para 77; and Childs v Childs, 2017 ONCA 516 at para 58.) [24] Given that consent is based on an agreement between the parties, it is necessary to look behind the “consent” andconsider the terms of the agreement to determine the true meaning of the consent.

Consent could mean that the party is not objecting; itcould mean that the party is recognising (but not adopting) a judicial decision; it could mean that a party is accepting the inevitableresults of a judicial decision without accepting the decision itself.

[ 25 ] Consenting to an order to “abbreviate the procedure and save expense” ( Pelrine at p 719) does not, and should not, amount to consent that forecloses an appeal.

While this principle was adopted by the Court in Pelrine in 1969, it is also completely consistent with the current philosophy of reducing court costs and time delays and increasing access to justice that was adopted by the Supreme Court of Canada in Hryniak v Mauldin , 2014 SCC 7 , and has been embraced by governments and courts across Canada. [ 26 ] The settlement of proceedings and the narrowing of issues are both encouraged and facilitated by all levels of court as a means of reducing court costs and time delays and increasing access to justice.

The trial courts, in particular, mandate settlement conferences and offer mediation services to assist with dispute resolution and to reduce the number of contested matters. It would be inconsistent with this philosophy to penalize a party who acts responsibly by consenting to an order for the purpose of abbreviating the procedure and save expense by then using that consent to deny it the right to appeal that decision on the true contested issues.

Analysis [ 27 ] The background to the consent in this case is clear from the motion judge’s decision—counsel had agreed that, if the licence was not valid, there was no issue requiring a trial (see para 5 of trial judge’s reasons). The defendants recognised this in their first motion brief, stating: By contrast, the content of paragraph “b” does not originate from anywhere within the motion for

summary judgment, or from within [the motion judge’s] reasons for decision. Paragraph “b” appears from the fact that Samborski [Environmental] was at that point prepared to formalize what it had already acknowledged, without the need to follow any further procedures in the litigation. The answer to the narrow question had determined that Samborski [Environmental] had no chance of success in the litigation, so it consented to paragraph “b”. [ 28 ] The first sentence is not correct—the basis for paragraph b of the judgment is found in para 5 of the decision (see para 8 herein). [ 29 ] The defendants take a very wide

interpretation of what constitutes consent in section 90(1)(a). They argue that the

section does not only apply to binding agreements of settlement; rather, it applies to any order made where the parties reach a point of common understanding that is “crystallize[d] . . . into a legally binding order.” In this case, they argue that the two sides voluntarily agreed to settle issues not contained in the motion judge’s decision, and that is the agreement that was formalized, by consent, in paragraph b of the judgment, making it a consent order within the meaning of section 90(1)(a). [ 30 ] In my view, this is not the kind of order that was intended to be captured by section 90(1)(a).

The facts of this case are very similar to those in Royal Bank . This was never a consent to the core or underlying decision. Rather, it was an acceptance of the results of that decision—an acceptance that was, at least implicitly, always dependant upon the validity of that underlying decision. In the words of Royal Bank , the dismissal of the action in this case was the necessary result of the motion judge’s finding that the licence was not valid. In fact, the parties had agreed to as much prior to the hearing of the motion, as was stated by the motion judge in her reasons.

That was the entire premise of the bifurcated hearing. [ 31 ] I am also persuaded by the reasoning in Pelrine that “what was done was merely done to abbreviate the procedure and save expense” (at p 719, quoting from Low or Jackson v General Steam Fishing Company, Limited , [1909] AC 523 at 528 (HL (Eng))). To require a further proceeding to dismiss the action would have been a colossal waste of time and money for the parties, and a waste of judicial and court resources. [ 32 ] This conclusion is also supported by the confusing wording of the order in this case.

The recitals do not indicate that any of the provisions are by consent. Consent is specifically referenced in paragraph c, but that paragraph is only “ CONSENTED AS TO FORM ” at the end of the judgment. Paragraph b does not use the word consent at all, but was consented “ AS TO FORM AND CONTENT ” at the end of the judgment. This certainly weakens any argument that this judgment reflects a true settlement of these issues by the parties. [ 33 ] The defendants’ position is also inconsistent with the philosophy of reducing court costs and increasing access to justice.

Given Samborski Environmental’s acknowledgement that a finding that the licence was invalid would effectively end the action, there would be no purpose served by proceeding to the next step, which was the defendants’ motion for

summary judgment. The most expeditious step for all parties was to end the action as quickly as possible and then proceed to the appeal of the only live issue. This was well known to the defendants, as the parties had discussions about an appeal even before the judgment was signed. Samborski Environmental should not be penalized in relation to its right to appeal because it acted responsibly by agreeing to limit the proceedings to those that are required to determine the contested issues.

The defendants’ action in taking a position that, if successful, would only have drawn out the proceedings is not in keeping with the current philosophy of increasing access to justice. [ 34 ] For these reasons, I find that, although paragraph b of the judgment is stated to be “ CONSENTED . . . AS TO FORM AND CONTENT ”, an examination of that provision, in the context of the history of the proceedings and the issues determined by the motion judge, leads me to the conclusion that the judgment is not a consent order within section 90(1)(a).

Thus, it can be appealed without leave being granted by the motion judge. [ 35 ] I have already commented on the confusing state of the various consents in the judgment. Counsel, in general, would do well to ensure that the terms of the orders that they draft and accept accurately reflect the parties’ true intentions. IV. EXTENSION OF TIME TO APPEAL [ 36 ] The criteria to be applied in determining whether to extend the time to commence an appeal, under r 42 of the CA Rules , are: 1. whether there was a continuous intention to appeal from a time within the period when the appeal should have been commenced;

2. whether there was a reasonable explanation for the delay; 3. whether there are arguable grounds of appeal; 4. whether any prejudice suffered by the other party can be addressed; and 5. whether it is right and just in all of the circumstances that the time for commencing the appeal be extended. (See Hunter v Hunter , 2000 MBCA 134 at paras 6-7 (in chambers); Bohemier v Bohemier , 2001 MBCA 161 at para 2 ; Boryskiewich v Stuart , 2014 MBCA 77 at paras 6-9 (in chambers); Singh v Pierpont , 2015 MBCA 18 at paras 37 , 40-41 (in chambers); and Winnipeg Condominium Corporation 479 v 520 Portage Avenue Ltd et al , 2019 MBCA 83 (in chambers).) [ 37 ] An important criterion is that of whether there are arguable grounds of appeal.

What constitutes arguable grounds was considered by the Supreme Court of Canada in Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 at paras 72-75 . Chartier CJM explained that test as follows in Boryskiewich (at para 9 ): . . . Rothstein J. stated that the test will be met where the ground of appeal cannot be dismissed after a preliminary examination of the grounds.

He reminded judges that, at the motion-court stage, while some preliminary consideration of the grounds of appeal and the likely applicable standard of review are “necessary to determine whether the appeal has the potential to succeed and thus to change the result” (at para. 72), it is not appropriate to consider the full merits of a case.

He also added that the “decision-maker is not required to refer to all the arguments, provisions or jurisprudence or to make specific findings on each constituent element” (at para. 75) of each ground under consideration or “to engage in extensive arguments or analysis about the standard of review” ( ibid. ).

Simply put, only some preliminary consideration of the grounds and some preliminary assessment of the standard of review are necessary when the arguable merits of the grounds are being considered by the chambers judge. [ 38 ] “An arguable ground” was described by Steel JA as “a realistic ground which, if established, appears of sufficient substance to be capable of convincing a panel of the court to allow the appeal” ( C (

S) v C (AS) , 2011 MBCA 70 at para 8 ). Continuous Intention to Appeal [ 39 ] It is clear from the evidence that Samborski Environmental had a continuous intention to appeal from a time within the appeal period. Its counsel at the time had conversations and exchanged email messages with counsel for the defendants about an appeal while they were negotiating the terms of the order.

Reasonable Explanation for the Delay [ 40 ] There was some confusion regarding the date of the signing and filing of the judgment caused in part because Samborski Environmental’s lawyer at the hearing was retiring and was not prepared to take the appeal. Its counsel did, however, have discussions with counsel for the defendants about another proposal by Samborski Environmental and the defendants agreed to consent to an extension of the time to appeal pending the outcome of those discussions.

It is unclear as to exactly what Paul Samborski, the general manager of Samborski Environmental, understood about that extension, but he stated in his affidavit that he was not aware, until the end of October 2019, that the judgment had already been signed and filed in August 2019. [ 41 ] Paul Samborski further stated in his affidavit that the corporate secretary met with a new lawyer a few days after a meeting involving him and both counsel on August 22, 2019, but that lawyer eventually declined to take the case.

The corporate secretary first met with Samborski Environmental’s current counsel on September 12, 2019. That counsel said that a check of the Court Registry System had not disclosed that the judgment had been entered. [ 42 ] The defendants state that “[they are taking] no position on this factor.” [ 43 ] In my view, the evidence establishes a reasonable explanation for the delay. Thus, this criterion has been met. Arguable Grounds of Appeal - Background [ 44 ] Samborski Environmental states that its proposed grounds of appeal relate only to the validity of the licence.

Its position is that, in finding that the licence is not valid and was not valid in March 2016, the motion judge erred: (

a) by concluding that the Licence could not sit dormant for years, remain valid, and be available to another proponent to proceed with a development (paragraph 29); (

b) by concluding that the Government of Manitoba can cancel or revoke a Licence in a manner not expressly provided for by [ The Environment Act ] (paragraph 46). [ 45 ] Samborski Environmental’s position is that these grounds of appeal all involve the

interpretation of a statute and raise questions of law. [ 46 ] By way of background, the Director, Environment Act , issued the licence to Campbell’s Garden Supplies Ltd. (Campbell’

s) in 1990. The validity of the licence, when issued, has not been contested. The licence is unconditional and does not have an expiry date. [ 47 ] In 1992, an environment officer entered a memorandum on the file stating that Campbell’s was no longer in business, no preparatory work had been done, the licence “does not apply” and the file could be closed. The memorandum does not say that the licence was cancelled or revoked. It was sent to a supervisor and entered on Campbell’s file without any evidence that the director of the

department agreed with or was aware of the decision. Samborski Environmental’s position is that there is no legislative authority for the Director to cancel or amend the licence once it has been granted except within the terms of the licence. In this case, the licence was unconditional. [ 48 ] Samborski Environmental points to provisions in the legislation that give the minister and a judge limited powers to suspend a licence in extraordinary circumstances, but no power to revoke or cancel it.

It argues that it would fly in the face of reason to find that the Legislature granted greater power to the director than to the minister or to a judge. [ 49 ] Samborski Environmental argues that its position that the licence could not be altered by the Director was recognised by the Government of Manitoba in a 2001 discussion paper prepared for Manitoba Conservation entitled “Building a Sustainable Future: Proposed Changes to Manitoba’s Environment Act ” ( “Building a Sustainable Future: Proposed Changes to Manitoba’s Environment Act : A Discussion Paper” (September 2001) at 10- 11, online (pdf): Manitoba Conservation < digitalcollection.gov.mb.ca/awweb/pdfopener?smd=1&did=10651&md=1 > (date accessed 10 June 2020)) .

This view was also expressed by the Manitoba Law Reform Commission in its final report entitled Manitoba’s Environmental Assessment and Licensing Regime Under The Environment Act ( Manitoba Law Reform Commission, Manitoba’s Environmental Assessment and Licensing Regime Under The Environment Act , report 130 (May 2015) at 104-5, online (pdf): Manitoba Law Reform < www.manitobalawreform.ca/pubs/pdf/130-full_report.pdf > (date accessed 10 June 2020) ). [ 50 ] The defendants argue that the motion judge’s

interpretation of the legislation must be understood within the context of environmental licencing and the unique nature of environmental licencing statutes, and within the particular circumstances of this case and this specific licence. [ 51 ] The defendants also point out that nothing in the decision prevents Samborski Environmental from applying for its own licence. They further argue that, even if the licence were found to be valid, Samborski Environmental would still be subject to departmental processes that could, and likely would, result in changes in the licence.

They state that, in the end, an appeal would ultimately serve Samborski Environmental no practical purpose as relates to its own interests. - Analysis [ 52 ] The issue before the motion judge was limited to the determination of the validity of the licence. Many of the arguments raised by the defendants, such as whether Samborski Environmental could apply for its own licence and whether the terms of the licence could be changed, may be relevant to the issue of damages and the degree of harm, if any, that Samborski Environmental suffered, but they do not relate to the

interpretation of the legislation and the validity of the licence. [ 53 ] In my view, Samborski Environmental has raised grounds of appeal that meet the test for establishing arguable grounds. They cannot be dismissed after a preliminary examination, and they are realistic grounds which, if established, appear of sufficient substance to be capable of convincing a panel of the Court to allow the appeal . Prejudice [ 54 ] The defendants argue that an extension of time will cause prejudice.

They raise a number of arguments related to the expenditure of government resources and whether Samborski Environmental is attempting to change the nature of the proceeding from a private law claim for damages into a judicial review.

They further point to the prejudice caused to the individual defendants whose personal interests are technically engaged. [ 55 ] What is at issue on this motion is the prejudice caused by the delay in filing the notice of appeal, and none of the issues raised by the defendants relate to that delay. [ 56 ] The defendants had agreed to an extension of the time to commence the appeal as though the period commenced on September 20, 2019, which extended the time to file the notice of appeal to October 20, 2019. Thus, the delay in question is 45 days.

The defendants have not pointed to any prejudice related to this very modest delay. I am not satisfied that the delay in filing the notice of appeal has caused any prejudice to the defendants. V. CONCLUSION [ 57 ] For these reasons, I am allowing the motion and granting Samborski Environmental an extension of time to file its notice of appeal.

As the defendants have not raised any concerns with the specific wording of the grounds of appeal as set out by Samborski Environmental in its brief, those will be the grounds of appeal (see para 44 herein). [ 58 ] I am granting an extension of the time for Samborski Environmental to file and serve its notice of appeal of two weeks from the date of the release of these reasons. If costs cannot be agreed, counsel can speak to that matter. JA