Decision Date: October 10, 2002

Court: B.C.C.A., Huddart, J. Hall, J. Mackenzie, J.

Cite: Vancouver Registry No. CA028931

In 2000, Turnagain Holdings Ltd. (“Turnagain”) applied for judicial review of the Board’s decision in 1993 (Appeal No. 92/23 Wildlife (unreported)) in which the Board upheld the Deputy Director’s refusal to allow Turnagain to call witnesses and make final submissions during a hearing under the Wildlife Act. The appeal was brought to the Board by Byron Dalziel, in response to the Deputy Director’s decision, after the hearing, to suspend his guide outfitter licence and cancel his guide outfitter certificate, which he held in trust for Turnagain.

The British Columbia Supreme Court held that the Board had erred by failing to find that the Deputy Director had breached a duty of fairness to Turnagain. However, the Court also found that the delay in commencing the judicial review was unreasonable, and that substantial prejudice would occur for the Ministry if the Court granted the relief requested. Therefore, the Court dismissed Turnagain’s petition.

Turnagain appealed this ruling to the British Columbia Court of Appeal. The Court of Appeal held that the Supreme Court properly dismissed the petition and refused to grant relief, notwithstanding the finding that the duty of fairness was breached. The Court of Appeal applied a two-step analysis from Carpenter v. Vancouver Police Board (1986), 9 B.C.L.R. (2d) 99 (C.A.) (hereinafter “Carpenter“), which held that a court, faced with a delayed judicial review, should ask whether the petitioner’s delay is unreasonable, and, if yes, whether the court should refuse to grant relief.

First, the Court of Appeal looked at whether Turnagain’s delay was unreasonable. This included assessing Turnagain’s conduct, reasons for the delay, and other relevant factors. The Court agreed with the Supreme Court that Turnagain likely had access to financial resources to fund a judicial review proceeding. Therefore, the argument that the delay was not unreasonable because of a lack of resources was not persuasive.

After finding that the delay was unreasonable, the Court looked at whether it was appropriate for the Supreme Court to refuse to grant Turnagain relief. According to the second stage of the Carpenter analysis, the Court had to decide whether the delay resulted in prejudice to the Ministry, and balance this prejudice against the prejudice to Turnagain if relief was not granted. The Court held that the Supreme Court correctly found that Turnagain did not place sufficient value on the guide outfitter certificate to seek to protect its investment with a relatively modest additional borrowing of funds. The Court of Appeal agreed that substantial prejudice would result to the Ministry’s treaty negotiations, if Turnagain was granted relief, because the Ministry had made the guide outfitter certificate an integral part of the negotiations, before Turnagain petitioned for judicial review.

The appeal was dismissed.