Docket: T-361-04
Ottawa, Ontario, this 23rd day of June, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
620 CONNAUGHT LTD., operating as DOWNSTREAM BAR,
263053 ALBERTA LTD., operating as MISS ITALIA RISTORANTE,
313769 ALBERTA LTD., operating as JASPER HOUSE BUNGALOWS,
659510 ALBERTA LTD., operating as BUCKLES RESTAURANT & SALOON,
ALEX HOLDINGS LTD., operating as SOMETHING ELSE RESTAURANT,
ALPINE GRILL LTD., operating as ALPINE GRILL RESTAURANT,
ATHABASCA MOTOR HOTEL (1972) LTD.,
operating as ATHABASCA HOTEL, LINA and CLAUDIO HOLDINGS LTD.,
operating as BECKERS GOURMET RESTAURANT,
CANTONESE RESTAURANT LTD., EARLS RESTAURANT (JASPER) LTD.,
FIDDLE RIVER SEAFOOD COMPANY LTD.,
GEORGE ANDREW & SONS LTD.,
operating as ASTORIA HOTEL COMPANY LIMITED.,
GLACIER INTERNATIONAL LTD., operating as WHISTLERS INN,
HUSEREAU RESTAURANT HOLDINGS INC., operating as TEKARRA RESTAURANT,
JASPER INN INVESTMENTS LTD., operating as THE INN RESTAURANT,
KABOS HOLDING LTD., operating as KAROUZOS STEAKHOUSE,
KONTOS INVESTMENTS LTD., operating as KONTOS RESTAURANT,
L & W VLAHOS HOLDINGS LTD., operating as L & W RESTAURANT,
LA FIESTA RESTAURANT LTD., LARRY HOLDINGS LTD.,
operating as MOUNT ROBSON RESTAURANT, MALIGNE TOURS LTD.,
SAWRIDGE ENTERPRISES INC.,
operating as SAWRIDGE INN & CONFERENCE CENTER,
T.C. RESTAURANTS LTD., operating as VILLA CARUSO STEAK HOUSE & BAR,
and TONQUIN PRIME RIB VILLAGE LTD.
Applicants
- and -
ATTORNEY GENERAL OF CANADA,
MINISTER OF ENVIRONMENT,
SUPERINTENDENT OF JASPER NATIONAL PARK
and PARKS CANADA AGENCY
Respondents
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicants operate businesses located in Jasper National Park in Alberta. To sell alcoholic beverages in their hotels and restaurants, they must obtain business licences for which they pay a percentage of their alcohol purchases. In this application, they seek a declaration that setting the licence fees on this basis is invalid and ultra vires the Minister of Canadian Heritage (the "Minister").
Issues
[2] This application raises the following issues:
1. Does the Court have jurisdiction to hear this application, on the basis that the Applicants have not brought their application within 30 days of a decision or order as required by s. 18.1(2) of the Federal Courts Act?
2. Are the fees invalid because they are actually a sales tax rather than a fee or levy?
3. Are the fees invalid because they are discriminatory in their application?
4. Are the fees invalid because they are calculated as a percentage or on a variable rather than a fixed basis?
5. Does the Minister of Canadian Heritage (the "Minister") have jurisdiction to impose the annual business fees on businesses within the Town of Jasper?
6. If the fees are found to be invalid, what remedies are available to the Applicants?
Statutory Framework
[3] Two federal statutes and relevant subordinate legislation govern the management of all national parks in Canada and, of significance to this case, provide for businesses to operate within the parks under a scheme that includes issuing licences and collecting fees. The Canada National Parks Act, S.C. 2000, c. 32, (the "Parks Act"), vests the Minister of Canadian Heritage (the "Minister") with control and management of Canada's national parks, including Jasper National Park. The second relevant statute is the Parks Canada Agency Act, S.C. 1998, c. 31 (the "Parks Agency Act") which establishes the Parks Canada Agency (the "Parks Agency"), having responsibility for the administration of the Parks Act and its regulations. Pursuant to the Parks Agency Act, the Minister is responsible for overseeing the actions of the Agency.
[4] The obligation to obtain a licence to sell alcoholic beverages arises from a combination of the relevant statutes and regulations. Section 16(1)(n) of the Parks Act provides that the Governor in Council may make regulations respecting "the control of businesses, trades, occupations . . . and other activities or undertakings . . .". On this authority, the National Parks of Canada Business Regulations, SOR/98-455 (the "Business Regulations") and the National Parks General Regulations, SOR/78-213, s. 39, as amended by SOR/93-167 (the "General Regulations") were enacted. Section 3 of the Business Regulations prohibits anyone from carrying on any business in a national park "unless that person is the holder of a licence or an employee of a holder of a licence." Further, s. 39 of the General Regulations prohibits the sale of "any intoxicating beverage" unless the vendor has obtained a licence under the Business Regulations.
[5] The procedures for obtaining a licence to sell alcohol and the fees to be paid begin with s. 4 of the Business Regulations which provides that, to obtain a licence to carry on a business in a national park, the party is required to apply to the superintendent, who has the authority to issue licences. The application must be accompanied "by the applicable fee fixed under section 24 of the Parks Agency Act". Pursuant to s. 24 of the Parks Agency Act, the Minister may "fix the fees or the manner of calculating fees in respect of products, rights or privileges provided by the Agency". Section 24 of the Parks Agency Act requires that the fees be published in the Canada Gazette within 30 days of being set.
[6] At issue in the case before the Court is the 2003/2004 Parks Canada Master List of Fees (the "List of Fees"), which was gazetted on August 23, 2003 (Supplement Canada Gazette, Part I). In the preamble to the List of Fees, the Chief Executive Officer of the Parks Agency states the following:
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In establishing these fees, Parks Canada has respected the principles of equity, fairness and appropriateness. The fees have been set through consultations with users, business partners and members of local communities and approved under the Parks Canada Agency Act. |
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Les droits que Parcs Canada exige sont fondés sur les principes d'équité, de justesse et de pertinence. Le processus d'élaboration des droits a été mis en place à la suite de consultations menées auprès des utilisateurs, des intervenants et des communautés locales et approuvé en vertu de la Loi sur l'Agence Parcs Canada. |
[7] Under the current List of Fees, a business owner who sells alcohol must pay 2% of the gross value of beer purchased annually and 3% of the gross value of "Spirits and Wine" purchased annually.
[8] These are the fees that are impugned by the Applicants on the basis that:
_ they are a tax rather than a licensing or regulatory fee;
_ they are discriminatory;
_ they are calculated on a percentage basis rather than as a fixed fee;
_ for those establishments in the town of Jasper, only the town of Jasper may impose fees on businesses.
Analysis
Issue #1: Are Applicants out of time for bringing an application for judicial review?
[9] The Respondent submits that the Applicants are out of time to commence a judicial review. Section 18.1(2) of the Federal Courts Act requires that an application for judicial review "in respect of a decision or an order . . . shall be made within 30 days" of the decision or order. I do not agree.
[10] In this case, the Applicants are applying for declaratory relief in respect of the operation of a statutory scheme. There is no specific order or decision. The time limit set out in s. 18.1(2) of the Federal Courts Act does not apply. Nor does the absence of a decision or order preclude the Applicants from seeking the remedies set out in s. 18 of the Federal Courts Act (Krause v. Canada [1999] 2 F.C. 476 (F.C.A.)). Accordingly, I am satisfied that this Court has jurisdiction to hear this application.
Issue #2: What is the applicable standard of review?
[11] The sole question before me is whether the imposition of business licence fees for the sale of alcoholic beverages is ultra vires. The parties submit that the issue of the vires attracts a standard of review of correctness (Sunshine Village Corp. v. Canada (Parks) 2004 F.C.A. 166, at para. 10). I agree.
Issue #3: Are the fees on alcohol purchases a tax?
[12] The Applicants' argue that the fees on alcohol purchases are a "tax" and, hence, ultra vires. In contrast, the Respondent characterizes the fee as a regulatory or licensing fee.
[13] Resolution of this issue requires that I characterize the impugned government levy. The fees in dispute were established pursuant to the above-described legislative scheme which I should presume valid unless otherwise shown. Thus, the first part of my analysis should be whether the fee meets the tests established by the jurisprudence for a licensing or regulatory fee. If it meets those criteria, in my view, then whether the fees also have some characteristics of a tax is irrelevant.
[14] The Supreme Court of Canada addressed the characteristics of charges imposed for regulatory purposes in the case of Westbank First Nation v. British Columbia Hydro and Power Authority [1999] 3 S.C.R. 134, at para. 24:
It goes without saying that in order for charges to be imposed for regulatory purposes, or to otherwise be "necessarily incidental to a broader regulatory scheme", one must first identify a "regulatory scheme". Certain indicia have been present when this Court has found a "regulatory scheme". The factors to consider when identifying a regulatory scheme include the presence of: (1) a complete and detailed code of regulation; (2) a specific regulatory purpose which seeks to affect the behaviour of individuals; (3) actual or properly estimated costs of the regulation; and (4) a relationship between the regulation and the person being regulated, where the person being regulated either causes the need for the regulation, or benefits from it. This is only a list of factors to consider; not all of these factors must be present to find a regulatory scheme. Nor is this list of factors exhaustive.
Factor #1: Code of Regulation
[15] With respect to the first factor, a complete and detailed code of regulation is provided by the Parks Act, the Parks Agency Act and the two sets of Regulations outlined above. There is a legislative underpinning for the fees in question.
Factor #2: Regulatory Purpose
[16] For the second factor, the question to be addressed is whether there is a "regulatory purpose". I am satisfied that there is. In general, the imposition of fees is designed to offset the costs of operating and administering each of Canada's national parks. The evidence before me is that the revenues from business licence fees (and all other fees set out in the List of Fees) collected in a park are directed back to the park for use in their operations. This revenue, which constitutes only a part of the overall costs of operations, is used to ensure the park's continued existence. As stated in s. 4(1) of the Parks Act, the national parks of Canada are "dedicated to the people of Canada for their benefit, education, and enjoyment . . . and the parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations". Businesses located in the parks are, in my view, included in this general purpose. Thus, in my view, the regulatory purpose of the legislative scheme is to provide for the continued operation of our national parks. Fees charged for services and benefits help achieve that purpose.
Factor #3: Costs of Regulation
[17] The third factor relates to the costs of the regulations. The Applicants submit that I should look only to the costs of administering the Business Regulations. This focus is, in my view, far too narrow. As stated above, the overall purpose of the regulatory scheme is to provide for the administration and operation of the parks, not just for regulating businesses within the parks. The setting of fees for the sale of alcohol is a small part of the overall mandate of the Minister and the Parks Agency and is inextricably linked to the overall purpose of the legislative scheme.
[18] Although there is no evidence as to the total amount of fees raised from all fees charged under the Master List of Fees, it is reasonable to assume that fees collected from all sources described in the List of Fees come nowhere close to covering the 2003/2004 forecasted expenditures of $20.4 million. In 2003/2004, Jasper National Park collected approximately $87,625 for business licence fees for the sale of alcohol. Thus, we do not have a situation where the revenues generated from the business fees (or the fees in general) exceed the costs of achieving the legislative purpose of the relevant statutes and regulations as was the case in Nanaimo Immigrant Settlement Society v. British Columbia [2004] BCCA 410 (B.C.C.A.), aff'd [2004] S.C.C.A. No. 429. In that case, the British Columbia Court of Appeal determined that licence fees charged with respect to bingos and casinos constituted a direct tax rather than regulatory fees and were, thus, not contrary to the Criminal Code, R.S.C. 1985, c. C-46. In part, the Court's decision was based on the fact that the licence fees collected grossly exceeded the costs of regulating bingos and casinos. That situation does not exist in this case.
Factor #4: Nexus
[19] The final factor set out in Westbank is the relationship or nexus between the persons paying the fees and the regulatory scheme. The Applicants receive many benefits that flow from the regulatory scheme in place. They benefit directly from being able to sell alcoholic beverages in the parks. More generally, they also benefit from the infrastructure in the parks that is supported, in part, by the fees they pay to obtain the privilege of selling alcoholic beverages. There is, in my view, a sufficient nexus between the imposition of a fee to sell alcoholic beverages and the purpose of the regulatory scheme.
[20] On the issue of nexus, the Applicants rely on the decision of the Supreme Court of Canada in Eurig Estate (Re) [1998] 2 S.C.R. 565. In holding that the probate levy under an Ontario statute was a tax and not a fee, Justice Major stated as follows, at para. 22:
In determining whether that nexus exists, courts will not insist that fees correspond precisely to the cost of the relevant service. As long as a reasonable connection is shown between the cost of the service provided and the amount charged, that will suffice. The evidence in this appeal fails to disclose any correlation between the amount charged for grants of letters probate and the cost of providing that service. The Agreed Statement of Facts clearly shows that the procedures involved in granting letters probate do not vary with the value of the estate. Although the cost of granting letters probate bears no relation to the value of an estate, the probate levy varies directly with the value of the estate. The result is the absence of a nexus between the levy and the cost of the service, which indicates that the levy is a tax and not a fee.
[21] In the case before me, the Applicants argue that there is no correlation between the fees charged for alcoholic beverage sales and the cost of providing the regulatory oversight of liquor sales. Just as in the Eurig case, they submit that the costs of operating the park do not vary with the
value of alcohol purchases. This argument, in my view, mischaracterizes the situation. The nexus in this case is not, in my analysis, between the particular manner in which the fees are established and the regulatory purpose but, in fact, between the assessing of all fees in the Master List and the costs of administering and operating the national park. By the fact that the List of Fees is revised from time to time, one can assume that the intent is to maintain a relationship between the operation of our national parks and the level of the fee structure. This situation is far different from that considered by the Supreme Court in Eurig.
Conclusion on this issue
[22] For these reasons, I conclude that the fees are a valid exercise of the Minister's regulatory oversight. Whether the fees also have characteristics of a tax is not, in my view, relevant.
[23] Finally, on this issue, I raise one additional concern that was not addressed by the parties. Even if I had concluded that this fee was a tax and not a licensing or regulatory fee, what would be the effect? Under the provisions of the Constitution Act,1867, a province only has jurisdiction to impose a direct tax whereas the federal power includes the ability to impose a direct or indirect tax. The cases to which both parties referred me involved situations where our unique constitutional makeup was at issue. Eurig, for example, involved the question of whether Ontario's "probate fee" levied on the estate of a deceased person was really a tax and, if so, whether "indirect" and hence beyond the competence of the provincial legislature.
[24] In Westbank, at para. 2, Justice Gonthier, speaking for the Court, stated that:
The proper approach to characterizing a governmental levy has been considered on numerous occasions by this Court in various contexts. The characterization is relevant when determining the constitutionality of a provincial levy that has indirect tendencies, for if it is a regulatory charge, or otherwise is a component of a regulatory scheme, then the provinces are constitutionally competent to impose such a charge. It is equally relevant when considering s. 53 of the Constitution Act, 1867, because if the levy is a tax, then it must be imposed by the legislature. And, as I discuss below, if the levy is characterized as a tax, then it is constitutionally inapplicable to the other level of government. [emphasis added]
[25] In the case before me, however, there are not two different levels of government in question. Would a characterization of this fee as a tax render the regulatory scheme invalid? Or, would this be an indirect tax that is within the competence of Parliament? Since I have determined that the fee is properly characterized as a regulatory fee, there is no need to consider this question.
Issue #4: Are the fees invalid because they are calculated as a percentage or on a variable rather than a fixed basis?
[26] The Applicants submit that the fees are invalid because they are established on a variable basis. They assert that the regulations only permit fixed fees. Based on my review of the applicable legislation, I do not agree.
[27] As set out in s. 39 of the General Regulations, no party can sell alcoholic beverages in a national park without a licence issued under the Business Regulations. To obtain a licence, the party must send an application to the superintendent accompanied "by the applicable fee fixed under section 24 of the Parks Agency Act (s. 4, Business Regulations)". Section 24 of the Parks Agency Act provides that the Minister may "fix the fees or the manner of calculating fees in respect of products, rights or privileges provided by the Agency". When read in their entire context, the words "fix" and "fixed" do not mean that the fee must be fixed, set or established as an absolute or "fixed" amount. There is nothing in either of these provisions that limit the type of fees to "fixed fees". The Minister has the discretion to fix the manner of calculating the fees. This must include the ability to establish fees, regardless of how they are to be calculated. In respect of businesses who choose to avail themselves of the privilege of selling alcoholic beverages, the Minister has determined that the manner of calculating the fees will be one based on the percentage of alcohol purchases by the business. This is not an improper exercise of her jurisdiction.
Issue #4: Are the fees discriminatory?
[28] The Applicants argue that the licence fees for alcohol purchases are discriminatory. This argument is based in the Applicants' interpretation of s. 4(2) of the Business Regulations and s. 24 of the Agency Act. The Applicants try to infer from their interpretation that the provisions are "very specific as to the manner in which fees are to be fixed" to also mean that all fees must be identical. The "discrimination" alleged is that only the fees payable by businesses selling alcohol are variable - all other fees are fixed.
[29] Taking this to the extreme, every fee set under s. 24, no matter for what purpose, would have to be identical; for example, the business licence application fee and the fee tied to the purchase of alcohol would have to be the same amount.
[30] It should also be noted that the 2% and 3% rates applied to beer and other alcohol, respectively, apply to all businesses purchasing alcohol. There is no discrimination in the way the fees are applied as between the businesses.
[31] The imposition of different fees for a licence to sell alcohol does not lead to either a conclusion that the fees are discriminatory or a conclusion that, even if they are, the fees are ultra vires.
Issue #5: Does the Local Government Agreement with the Municipality of Jasper preclude the imposition of the fees?
[32] The Applicants contend that under a Local Government Agreement (the "Agreement"), the Minister has granted authority to levy business fees to the Municipality of Jasper. Thus, they argue that the Minister no longer has the authority to do so.
[33] The Applicants' argument is that the Agreement gives the Municipality of Jasper all the powers and authorities of a town except those relating to land use planning. The Agreement defines land use planning to mean "the forecasting, regulation and control of the use and development of buildings and lands" and so does not include issuing business licences and levying business fees. This, in their view, means that the determination of fees is not excluded by the Agreement and so properly falls to the Municipality.
[34] The evidence before me is that the only Applicant whose business is located within the Municipality of Jasper is Athabasca Motor Hotel (1972) Ltd. Accordingly, this argument, if successful, would only assist that particular Applicant.
[35] Analysis of this issue requires a review of the Agreement. Article 4.1.1 of the Agreement, as noted by the Applicants, states that the Municipality of Jasper "has all the powers and authorities of a town under the Municipal Government Act except those relating to land use planning, development, annexation and the environment." Article 4.1.2 states that the Municipality "shall have all the rights, obligations, duties, powers and function as may be delegated to it under the Canada National Parks Act". [emphasis added]
[36] Article 6.2 of the Agreement provides that, when a by-law is made by the Municipality in respect of subject matter covered by the Parks Act, then, with the Minister's approval, those portions of the Parks Act will be repealed. More importantly, Article 6.3 provides that "[n]othing in this Agreement affects the operation of any regulation made under the Canada National Parks Act, until such regulation has been repealed or amended to the extent that it no longer applies to the Municipality of Jasper".
[37] These provisions of the Agreement are a complete response to the position of the Applicants that the Agreement automatically bestows "all the powers and authorities of a town". Power must be specifically granted and the corresponding provisions under the Parks Act repealed or amended to exclude the Municipality. The evidence of Mr. Barry Romanko, the Realty Services Manager in Jasper National Park and an affiant produced by the Respondent, was that, while the parties to the Agreement (being the Minister and the Municipality of Jasper) agreed to explore the possibility of transferring the authority over issuing business licenses to the Municipality, for the present time, the authority remains with the Minister.
[38] In my view, those provisions in the Business Regulations concerning business licences and, by reference, s. 24 of the Parks Agency Act allowing the Minister to "fix the fees or the manner of calculating fees," remain in force, not having been repealed or amended. Unless and until the power is transferred to the Municipality, the authority to set the licensing fees remains with the Minister.
Remedy
Conclusion
[39] In summary, I am satisfied that the fees on alcoholic beverages are validly imposed on the Applicants since:
• the fees constitute a regulatory fee;
• the fees are not discriminatory;
• the fees are not invalid because they are set on a percentage basis;
• within the townsite of Jasper, the fees may still be imposed by the Minister notwithstanding the Local Government Agreement.
For these reasons, I would dismiss the application with costs.
ORDER
This Court orders that:
[40] The application is dismissed with costs to the Respondent.
______________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: 620 CONNAUGHT LTD. AND OTHERS v. ATTORNEY GENERAL OF CANADA AND OTHERS
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: June 16, 2005
AND ORDER: The Honourable Madam Justice Snider
APPEARANCES:
Jack N. Agrios, O.C., Q.C. FOR APPLICANTS
Janet Agrios
SOLICITORS OF RECORD:
Jack N. Agrios Professional Corporation FOR APPLICANTS
Barristers and Solicitors
Edmonton, Alberta
Mr. John H. Sims, Q.C.