1251497 Alberta Inc. et al. v. Edmonton (City) et al., 2010 ABQB 641

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 02, 2010
• Citations: 2010 ABQB 641;(2010), 503 A.R. 30 (QB)

1251497 Alta. Inc. v. Edmonton (2010), 503 A.R. 30 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. OC.074

1251497 Alberta Inc. and Terry Nyquvest (appellants) v. The City of Edmonton and the Community Standards and Licence Appeal Committee of the City of Edmonton (respondents)

(1003 05997; 2010 ABQB 641)

Indexed As: 1251497 Alberta Inc. et al. v. Edmonton (City) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

October 7, 2010.

Summary:

The City of Edmonton ordered the demolition of the Cromdale Hotel under s. 546(1)(c)(ii) of the Municipal Government Act on the basis that it "was in an unsightly condition and detrimental to the surrounding area". The appellants (the Hotel's corporate owner and its director) appealed unsuccessfully to the Community Standards and License Appeal Committee. The appellants appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Land Regulation - Topic 5004

Unsightly premises (neglected buildings) - Unsightly - What constitutes - The City of Edmonton ordered the demolition of the Cromdale Hotel under s. 546(1)(c)(ii) of the Municipal Government Act on the basis that it "was in an unsightly condition and detrimental to the surrounding area" - The appellants (the Hotel's corporate owner and its director) appealed unsuccessfully to the Community Standards and License Appeal Committee - The Committee assessed whether the structure was unsightly, whether the unsightly condition was detrimental to the surrounding area, and whether it was reasonable and proportional to require demolition as the only feasible alternative - The Committee found that the few alternatives mentioned were not linked to the need to rectify the unsightly property - The Committee expressly acknowledged in its discussion that demolition was a drastic measure - The appellants appealed - The Alberta Court of Queen's Bench dismissed the appeal - The Committee heard from representatives in the community, from Edmonton City Police and from administration - It had photographs including images of the steps taken after the demolition order by the appellants - The Committee was entitled to rely on all the evidence before it, and its conclusion that the property was unsightly was not irrational - Similarly, the Committee had sufficient evidence to rationally support its conclusion that the unsightliness was detrimental to the surrounding community - See paragraphs 35 to 38.

Land Regulation - Topic 5013

Unsightly premises (neglected buildings) - Demolition - Notice of - The City of Edmonton ordered the demolition of the Cromdale Hotel under s. 546(1)(c)(ii) of the Municipal Government Act on the basis that it "was in an unsightly condition and detrimental to the surrounding area" - The appellants (the Hotel's corporate owner and its director, Nyquvest) appealed unsuccessfully to the Community Standards and License Appeal Committee - The appellants appealed - They first raised a technical argument, asserting that although Nyquvest was the sole director and shareholder of the corporate appellant, he was not the registered owner of the Hotel and his inclusion in the order was improper, particularly as it related to enforcement of remedies - The Alberta Court of Queen's Bench dismissed the appeal - The order was not rendered invalid by this alleged shortcoming - There was nothing improper in notifying Nyquvest to ensure his awareness of the demolition order - Certainly the sole shareholder/director was an interested person and might well be a person in lawful possession of the property for some purposes - Nonetheless, the only party legally responsible and subject to direct enforcement to be named in the demolition order was the registered corporate owner - See paragraph 32.

Land Regulation - Topic 5013

Unsightly premises (neglected buildings) - Demolition - Notice of - The City of Edmonton ordered the demolition of the Cromdale Hotel under s. 546(1)(c)(ii) of the Municipal Government Act (MGA) on the basis that it "was in an unsightly condition and detrimental to the surrounding area" - The appellants (the Hotel's corporate owner and its director, Nyquvest) appealed unsuccessfully to the Community Standards and License Appeal Committee - The appellants appealed - They first raised a technical argument, asserting that the form of the order was defective in that the warnings of consequence for non-compliance contemplated by ss. 550 to 557 of the MGA were inserted after the signature of the General Enforcement Coordinator - To be enforceable against the corporate appellant, these provisions had to be strictly included within the body or terms of the order - The Alberta Court of Queen's Bench dismissed the appeal - The order was not rendered invalid by this alleged shortcoming - Given the permissive language of s. 546(2), whether or not that language was technically contained in the body of the order was not determinative of the validity of the demolition order - See paragraphs 33 and 34.

Land Regulation - Topic 5016

Unsightly premises (neglected buildings) - Demolition - Appeals (incl. judicial review and injunction) - The City of Edmonton ordered the demolition of the Cromdale Hotel under s. 546(1)(c)(ii) of the Municipal Government Act on the basis that it "was in an unsightly condition and detrimental to the surrounding area" - The appellants (the hotel's corporate owner and its director) appealed unsuccessfully to the Community Standards and License Appeal Committee - The appellants appealed - With respect to the standard of review, the Alberta Court of Queen's Bench held that the Committee's decision was properly reviewed for patent unreasonableness and compliance with procedural requirements was reviewed essentially on a correctness standard - See paragraphs 22 to 31.

Land Regulation - Topic 5016

Unsightly premises (neglected buildings) - Demolition - Appeals (incl. judicial review and injunction) - The City of Edmonton ordered the demolition of the Cromdale Hotel under s. 546(1)(c)(ii) of the Municipal Government Act on the basis that it "was in an unsightly condition and detrimental to the surrounding area" - The appellants (the Hotel's corporate owner and its director) appealed unsuccessfully to the Community Standards and License Appeal Committee - The appellants appealed - At issue was, inter alia, whether sufficient proof was given that less destructive measures would not have alleviated the problem, and that the appellants should have been given the option to remediate - even if the cost would be relatively excessive - The Alberta Court of Queen's Bench dismissed the appeal - From the record there was no request by the appellants for administration to perform an evaluation of alternatives - Administration did not have access to the interior to assess the extent of remediation required - They received no expression of interest or consideration by the owner of taking steps in that direction - Even assuming a request for evaluation of alternatives, if made in co-operation with a proposal to allow full access, would have been reasonable, the absence of a report on such alternatives did not render the Committee's decision irrational - See paragraphs 39 to 44.

Cases Noticed:

744970 Alberta Ltd. v. Wetaskiwin (City) et al. (2001), 294 A.R. 380; 2001 ABQB 564, refd to. [para. 13].

Riopelle v. Montreal (City) (1911), 44 S.C.R. 579, refd to. [para. 13].

Owners-Condominium Plan No. 822 2909 v. 837023 Alberta Ltd. et al. (2010), 497 A.R. 342; 2010 ABQB 111, refd to. [para. 14].

Ingham v. West Hants District (Municipality) (2005), 11 M.P.L.R.(4th) 185; 2005 NSSC 115, affd. (2006), 243 N.S.R.(2d) 86; 772 A.P.R. 86; 2006 NSCA 37, refd to. [para. 17].

Hopper v. Municipal District of Foothills No. 31 and Lancaster (1976), 1 A.R. 129 (C.A.), refd to. [para. 19].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 24].

Victoria Times Colonist v. Communications, Energy and Paperworkers Union of Canada, Local 25-G et al. (2009), 272 B.C.A.C. 141; 459 W.A.C. 141; 2009 BCCA 229, refd to. [para. 25].

Juneja et al. v. Registrar of Motor Vehicle Services (Alta.) (2008), 459 A.R. 348; 2008 ABQB 573, refd to. [para. 26].

Dodd v. Registrar of Motor Vehicle Services (Alta.) (2010), 500 A.R. 38; 2010 ABQB 506, refd to. [para. 26].

Gateway Charters Ltd. v. Edmonton (City) (2010), 497 A.R. 325; 2010 ABQB 567, refd to. [para. 27].

Kadar v. Edmonton Municipal Council et al., [2010] A.R. Uned. 304; 2010 ABCA 260, refd to. [para. 28].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 30].

Edmonton Police Association et al. v. Edmonton (City) et al. (2007), 409 A.R. 1; 402 W.A.C. 1; 2007 ABCA 184, refd to. [para. 30].

Nedela v. Edmonton (City) et al., [2007] A.R. Uned. 635; 39 M.P.L.R.(4th) 229; 2007 ABQB 622, refd to. [para. 33].

Counsel:

Jerritt R. Pawlyk (Bishop & McKenzie LLP), for the appellants;

Cameron J. Ashmore and Brian Loewen (City of Edmonton Law Branch), for the respondents.

This appeal was heard on September 2, 2010, by Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 7, 2010.