Genesis Land Development Corp. v. Alberta.

The case involved a land development company seeking to create a recreation business as part of Spray Lakes Reservoir dating back to 1987. A lease and licence of occupation for 25 years were issued in 1994 and subsequent security deposits were paid in relation to a “boat operation”. Various other stages of development were approved in principle by government but a variety of approvals and authorizations were required that were yet to be obtained. Following the introduction of a new policy in 1999 for Kananaskis Country, where new development was to be limited, and consideration was to be given to existing proposals. The Minister received significant public opposition to the project, subsequently he came to the opinion that the projects were not in the public interest and issued two orders relating to limiting approval or registration under the Environmental Protection and Enhancement Act (EPEA) and Water Act. The plaintiff claimed for damages as a result of abuse of office, tortuous interference with business relations, expropriation, and breach of contract. The applicants (Minister and Crown) sought to strike the statement of claim or have summary judgment on the claims granted in relation to the actions. All the developer’s claims were dismissed except that relating to the boat lease and licences and whether claims for expropriation, breach of contract and duty of good faith and fair dealing remained. the Court noted that an assurance of approval (which was accepted by the Crown for the purpose of the application) did not equate with the formation of a contract and that the “Applicants could not contract out their statutory duty to determine if the projects were in the public interest”. In dealing with the issue of abuse of office and tortious interference, the Court failed to find any evidence of the requisite intent and unlawful action on behalf the Minister or the Crown. The Court went on to note that considerations given by the Minister in this case fell within the scope of the purpose of the Environmental Protection and Enhancement Act. The Court noted that “the legislation does not specify how the particular criteria are to be weighed by the Minister in making an informed decision that would permit him to exercise his power under s.62 of the EPEA. However, at a minimum, the factors considered by Mar clearly indicated a general concern for the “protection, enhancement and wise use of the environment”. On the issue of whether expropriation occurred by way of the Ministerial Order the Court looked to determine whether an interest in land was created. The Court found none except for the boat operation lease and licence, for which a genuine issue for trial was found. In this regard the Court noted in obiter that further authorizations were needed for the boat operation and that, depending on the nature of these authorization requirements a compensable interest may have arisen. Namely, where an authorization was merely a condition of the operation an interest may have vested in the operator but where the authorization was a true condition precedent to the activity proceeding a compensable interest would not be recognized. In most instances authorizations would be of the nature of a condition precedent to any vesting of any interest in land.