1022049 Alberta Ltd. v. Medicine Hat (City), (2007) 404 A.R. 54 (CA)

• Judge: Picard, Paperny and O'Brien, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 12, 2007
• Citations: (2007), 404 A.R. 54 (CA);2007 ABCA 108

1022049 Alta. v. Medicine Hat (2007), 404 A.R. 54 (CA);

      394 W.A.C. 54

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AP.022

1022049 Alberta Ltd. (appellant/plaintiff) v. City of Medicine Hat (respondent/defendant)

(0501-0132-AC; 2007 ABCA 108)

Indexed As: 1022049 Alberta Ltd. v. Medicine Hat (City)

Alberta Court of Appeal

Picard, Paperny and O'Brien, JJ.A.

March 28, 2007.

Summary:

1022049 Alberta Ltd. operated a large nightclub next to a residential district. After numerous noise complaints were registered against the nightclub, the city refused to renew the nightclub's business licence. 1022049 sought a declaration that the city's noise bylaw was in breach of s. 7 of the Charter and sought judicial review of the city's decision not to renew the licence.

The Alberta Court of Queen's Bench, in a decision reported at 375 A.R. 90, dismissed both applications and ordered costs in favour of the city. 1022049 filed a notice of appeal. Subsequently, 1022049 applied to the Queen's Bench judge to reconsider her costs decision, requesting solicitor-client costs in its favour. In support of the application, 1022049 filed an affidavit that referred to new evidence of post-hearing conduct by the city.

The Alberta Court of Queen's Bench, in a decision reported at 400 A.R. 245, dismissed the application to reconsider the costs decision and denied the request for solicitor-client costs. 1022049 applied to settle the contents of the appeal book, submitting that the new evidence referred to in the reconsideration application should be included in the appeal book because it was evidence before the Queen's Bench judge.

The Alberta Court of Appeal, per Fruman, J.A., in a decision reported at 391 A.R. 187; 377 W.A.C. 187, determined that the evidence should not form part of the appeal record.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - 1022049 Alberta Ltd. operated a large nightclub next to a residential district - Numerous noise complaints were made against the nightclub - The city refused to renew the nightclub's business licence due to non-compliance with the city's anti-noise bylaw - 1022049 sought a declaration that the bylaw was invalid due to a breach of s. 7 of the Charter - 1022049 argued that the bylaw was vague and overly broad - The trial court dismissed the application - 1022049 appealed - The Alberta Court of Appeal dismissed the appeal - The court agreed with the trial judge's conclusions that the bylaw attempted to regulate noise by establishing specific acceptable decibel limits and by limiting noise as a general prohibition - The general prohibitions were not too vague to be understood - See paragraphs 7 and 13.

Municipal Law - Topic 1490

Powers of municipalities - Particular powers - Control of noise - 1022049 Alberta Ltd. operated a large nightclub next to a residential district - Numerous noise complaints were made - The city refused to renew the nightclub's business licence due to non-compliance with an anti-noise bylaw - 1022049 sought judicial review, asserting, inter alia, that the city improperly used its power to grant business licences to control land use - The trial court dismissed the application - 1022049 appealed - The Alberta Court of Appeal dismissed the appeal - The license inspector was empowered to revoke or suspend licenses where the inspector had "just and reasonable grounds" to do so, including non-compliance with any bylaw - That there had been numerous complaints of excessive noise, a breach of a court order imposing a stay, attendance at the premises and neighbouring residences to observe the noise and no remedial action taken were relevant considerations in light of the bylaw's purpose of regulating noise - None of the evidence relied on could be said to relate to land use - Moreover, the invitation to reapply once appropriate remedial steps had been taken to control noise suggested otherwise - See paragraphs 14 and 21.

Municipal Law - Topic 1490

Powers of municipalities - Particular powers - Control of noise - 1022049 Alberta Ltd. operated a large nightclub next to a residential district - Numerous noise complaints were made - The city refused to renew the nightclub's business licence due to non-compliance with an anti-noise bylaw - 1022049 sought judicial review - The trial court dismissed the application - 1022049 appealed, asserting, inter alia, that the city had improperly relied on outstanding bylaw charges and that, by refusing to issue a license on the basis of the evidence related to the charges, had in effect substituted the licencing proceedings for a trial - The Alberta Court of Appeal dismissed the appeal - The license inspector was empowered to revoke or suspend licenses where the inspector had "just and reasonable grounds" to do so, including non-compliance with any bylaw - Determining non-compliance did not require a criminal standard of proof - Neither the licencing inspector nor the city were required to await a final disposition on the charges - Further, there was other evidence establishing non-compliance - The conclusion that there was an ongoing problem was just and reasonable and was within the inspector's and city's jurisdiction - See paragraphs 15 to 20.

Municipal Law - Topic 1496

Powers of municipalities - Particular powers - Licensing and regulating of businesses (incl. adult entertainment) - [See both Municipal Law - Topic 1490 ].

Municipal Law - Topic 3767

Bylaws - Particular bylaws - Noise control bylaw - [See Civil Rights - Topic 686 ].

Municipal Law - Topic 3848

Bylaws - Quashing bylaws - Grounds for judicial interference - Uncertainty or vagueness - [See Civil Rights - Topic 686 ].

Municipal Law - Topic 3998

Bylaws - Enforcement or prosecution - Licence review - [See both Municipal Law - Topic 1490 ].

Statutes - Topic 4552

Operation and effect - Validity - Vagueness - [See Civil Rights - Topic 686 ].

Cases Noticed:

Varette v. Sainsbury, [1928] S.C.R. 72; 1 D.L.R. 273, refd to. [para. 9].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 212, refd to. [para. 9].

Xerex Exploration Ltd. v. Petro-Canada et al. (2005), 367 A.R. 201; 346 W.A.C. 201; 2005 ABCA 224, refd to. [para. 9].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 10].

Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 12].

Payne v. Prince George (City), [1978] 1 S.C.R. 458; 15 N.R. 386; 75 D.L.R.(3d) 1, refd to. [para. 14].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, refd to. [para. 16].

Leisureland Sports Bar Inc. et al. v. Edmonton (City) et al. (2001), 298 A.R. 201; 2001 ABQB 745, refd to. [para. 21].

Counsel:

K.H. Ham, for the appellant;

W.W. Shores, Q.C., for the respondent.

This appeal was heard on March 12, 2007, by Picard, Paperny and O'Brien, JJ.A., of the Alberta Court of Appeal. The Court filed the following memorandum of judgment on March 28, 2007.