1254582 Alberta Ltd. et al. v. Edmonton (City), (2009) 448 A.R. 58 (CA)

• Judge: Côté, Picard and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 30, 2008
• Citations: (2009), 448 A.R. 58 (CA);2009 ABCA 4

1254582 Alta. v. Edmonton (2009), 448 A.R. 58 (CA);

      447 W.A.C. 58

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.111

1254582 Alberta Ltd., Sid Slach, Robert Sterr and Susan McFadzen (appellants/applicants) v. The City of Edmonton (respondent/respondent)

(0703-0361-AC; 2009 ABCA 4)

Indexed As: 1254582 Alberta Ltd. et al. v. Edmonton (City)

Alberta Court of Appeal

Côté, Picard and Watson, JJ.A.

January 5, 2009.

Summary:

The appellants ran a business called Airport Taxi Service based in Leduc County, where the Edmonton International Airport was located. Airport Taxi Service and its directors were not licensed taxi brokers for Edmonton under Edmonton's Taxi Bylaw and its drivers were not licensed operators under the Taxi Bylaw. Airport Taxi Service's operators picked up passengers at stands at the Edmonton International Airport, which were exclusively held by a contract with the Edmonton Regional Airport Authority. Most of the passengers were headed into Edmonton. Airport Taxi Service also advertised a service, by appointment, to pick up passengers in Edmonton and take them to the airport. The City of Edmonton considered that pickup service to be carrying on the taxicab business in Edmonton. An order of the Quasi-Judicial Committee of the Edmonton City Council prohibited Airport Taxi Service from accepting customer orders for, and from dispatching its taxis to pick up, passengers within the City of Edmonton. The appellants applied for judicial review of the order.

The Alberta Court of Queen's Bench dismissed the application. The appellants appealed.

The Alberta Court of Appeal, Côté, J.A., dissenting, dismissed the appeal.

Municipal Law - Topic 1497

Powers of municipalities - Particular powers - Licensing and regulating taxis - The appellants ran a business called Airport Taxi Service (ATS) - Its directors were not licensed taxi brokers for Edmonton under Edmonton's Taxi Bylaw and its drivers were not licensed operators under the Bylaw - ATS's operators picked up passengers at stands at the Edmonton International Airport in Leduc County, which were exclusively held by a contract with the Edmonton Regional Airport Authority - That contract was said to arise under s. 21 of the Regional Airports Authorities Act, which stated that a purpose of the Airport Authority was to advance economic and community development by promoting and encouraging improved transportation service for the general benefit of the public in the region - Most of the passengers picked up by ATS at the airport were headed into Edmonton - ATS also advertised a service, by appointment, to pick up passengers in Edmonton and take them to the airport - The City of Edmonton considered that pickup service to be carrying on the taxicab business in Edmonton - An order of the Quasi-Judicial Committee of the Edmonton City Council prohibited ATS from accepting customer orders for, and from dispatching its taxis to pick up, passengers within the City of Edmonton - The appellants' application for judicial review of the order was dismissed - The appellants appealed, arguing, inter alia, that the Taxi Bylaw and the order conflicted with the Regional Airports Authorities Act - The Alberta Court of Appeal rejected the argument - See paragraph 18.

Municipal Law - Topic 1497

Powers of municipalities - Particular powers - Licensing and regulating taxis - The appellants ran a business called Airport Taxi Service (ATS) based in Leduc County, where the Edmonton International Airport was located - ATS and its directors were not licensed taxi brokers for Edmonton under Edmonton's Taxi Bylaw and its drivers were not licensed operators under the Taxi Bylaw - ATS's operators picked up passengers at stands at the Edmonton International Airport, which were exclusively held by a contract with the airport authority - Most of the passengers were headed into Edmonton - ATS also advertised a service, by appointment, to pick up passengers in Edmonton and take them to the airport - The City of Edmonton considered that pickup service to be carrying on the taxicab business in Edmonton - An order of the Quasi-Judicial Committee of the Edmonton City Council prohibited ATS from accepting customer orders for, and from dispatching its taxis to pick up, passengers within the City of Edmonton - The appellants' application for judicial review of the order was dismissed - The appellants appealed - The appellants argued that the order affected its business, which was outside of Edmonton, thus overshooting Edmonton's jurisdictional limit under s. 12 of the Municipal Government Act - The Alberta Court of Appeal held that the order did not exceed the City's jurisdictional limit under s. 12 of the Municipal Government Act - The appellants had not persuaded the court that the order constituted an attempt by the City to apply the Bylaw outside Edmonton or that the order had that effect - The order prohibited the appellants from violating the Bylaw inside Edmonton - See paragraphs 21 to 33.

Municipal Law - Topic 1684

Powers of municipalities - Judicial review of exercise of powers - Scope of power of municipality - [See second Municipal Law - Topic 1497 ].

Municipal Law - Topic 3770

Bylaws - Particular bylaws (incl. scope of) - Licensing bylaw - [See second Municipal Law - Topic 1497 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - The appellants ran a business called Airport Taxi Service (ATS) based in Leduc County, where the Edmonton International Airport was located - Its directors were not licensed taxi brokers for Edmonton under Edmonton's Taxi Bylaw and its drivers were not licensed operators under the Bylaw - An order of the Quasi-Judicial Committee of the Edmonton City Council prohibited ATS from accepting customer orders for, and from dispatching its taxis to pick up, passengers within the City of Edmonton - The appellants' application for judicial review of the order was dismissed - The appellants appealed - By an oral submission raised for the first time at the appeal hearing, and by arguments which were subsequently detailed by post-hearing factums, the appellants argued that the order was not consistent with s. 153 of the Traffic Safety Act, which provided that "The council of a municipality shall not impose a fee or charge in respect of the operation of a commercial vehicle by ... an exempted operator" - The Alberta Court of Appeal held that it would not give effect to the appellants' belated invocation of s. 153 of the Traffic Safety Act - The Quasi-Judicial Committee did not have the interpretation of s. 153(1) raised with it - The court stated that it would not venture an opinion on crucial terms of s. 153 in the abstract - See paragraphs 34 to 42.

Cases Noticed:

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [paras. 12, 65].

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. 13].

Brick GP Ltd. v. Calgary (City) (2008), 440 A.R. 304; 438 W.A.C. 304; 2008 ABCA 356, refd to. [para. 13].

RSJ Holdings Inc. v. London (City), [2007] 2 S.C.R. 588; 364 N.R. 362; 226 O.A.C. 375; 2007 SCC 29, refd to. [para. 13].

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. 14].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 200 D.L.R.(4th) 219; 2001 SCC 40, refd to. [para. 14].

St. Paul No. 19 (County) v. Belland (2006), 380 A.R. 324; 363 W.A.C. 324; 2006 ABCA 55, refd to. [para. 14].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 15].

Ottawa Electric Railway Co. v. Eastview (Town), [1925] 1 D.L.R. 53; 56 O.L.R. 52 (H.C.), dist. [paras. 21, 92].

R. v. Ross, [1955] S.C.R. 430, dist. [para. 21].

R. v. Roy, [1973] 3 O.R. 366 (C.A.), dist. [para. 21].

R. v. Asante-Mensah (D.), [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317; 2003 SCC 38, refd to. [para. 22].

Apache Canada Ltd. v. Johnson et al. (2005), 363 A.R. 100; 343 W.A.C. 100; 2005 ABCA 71, refd to. [para. 23].

Wilson v. Hull (1995), 174 A.R. 81; 102 W.A.C. 81; 34 Alta. L.R.(3d) 237 (C.A.), refd to. [paras. 23, 92].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107; 1979 CarswellNat 639, refd to. [para. 26].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al. (2007), 412 A.R. 97; 404 W.A.C. 97; 2007 ABCA 198, leave to appeal granted (2008), 385 N.R. 398  (S.C.C.), refd to. [para. 26].

Registrar of Motor Vehicles v. Canadian American Transfer Ltd., [1972] S.C.R. 811; 26 D.L.R.(3d) 112, refd to. [para. 79].

Provincial Treasurer of Alberta v. Kerr, [1933] A.C. 710; [1933] 3 W.W.R. 38 (P.C.), refd to. [para. 80].

Treasurer of Ontario v. Blonde; Treasurer of Ontario v. Aberdein, [1947] A.C. 24; [1946] 3 W.W.R. 683 (P.C.), refd to. [para. 80].

R. v. National Trust Co., [1933] S.C.R. 670, refd to. [para. 80].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 84].

Ontario (Attorney General) v. Winner, [1954] A.C. 541; [1954] 4 D.L.R. 657 (P.C.), refd to. [para. 86].

Kirkwood v. Gadd, [1910] A.C. 422; 79 L.J.K.B. 815 (H.L.), refd to. [para. 87].

Ross v. R., [1955] S.C.R. 430; [1955] 4 D.L.R. 273, refd to. [para. 92].

R. (ex rel. St. Jean) v. Knott, [1944] O.W.N. 432; [1944] 3 D.L.R. 726, refd to. [para. 92].

R. v. Knott - see R. (ex rel. St. Jean) v. Knott.

London (City) v. Watt (George) & Sons (1893), 22 S.C.R. 300, refd to. [para. 92].

Halifax (City) v. McLaughlin Carriage Co. (1907), 39 S.C.R. 174, refd to. [para. 92].

Ex parte Lemon (1881), 20 N.B.R. 563 (C.A.), refd to. [para. 94].

R. v. Kemp, [1943] O.W.N. 54; [1943] 3 D.L.R. 606, refd to. [para. 95].

R. v. Olive, [1951] O.W.N. 635; 100 C.C.C. 281 (Co. Ct.), affd. [1953] O.W.N. 197; 105 C.C.C. 404 (C.A.), refd to. [para. 95].

R. v. Roy, [1973] 3 O.R. 366; 12 C.C.C.(2d) 403 (C.A.), affing. [1973] 1 O.R. 38; 9 C.C.C.(2d) 209 (Co. Ct.), refd to. [para. 95].

R. v. Security Storage Co. (1957), 118 C.C.C. 227; 22 W.W.R.(N.S.) 216 (Man. C.A.), refd to. [para. 96].

Mississauga (City) v. Gray (1997), 102 O.A.C. 241; 34 O.R.(3d) 487 (C.A.), refd to. [para. 96].

R. v. Perth's (Brandon) Ltd. (1959), 31 W.W.R.(N.S.) 114; 127 C.C.C. 247 (Man. Co. Ct.), refd to. [para. 96].

Entores v. Miles Far East Corp., [1955] 2 All E.R. 493 (C.A.), refd to. [para. 101].

McDougall v. Law Society of Upper Canada (1890), 18 S.C.R. 203, refd to. [para. 109].

Imperial Oil Ltd. v. Jerseyside (Town) (1989), 80 Nfld. & P.E.I.R. 101; 249 A.P.R. 101; 61 D.L.R.(4th) 185 (Nfld. T.D.), refd to. [para. 120].

Furness Withy & Co. v. Minister of National Revenue, [1968] S.C.R. 221; 66 D.L.R.(2d) 657, affing. [1967] 1 Ex. C.R. 353; [1966] C.T.C. 482, refd to. [para. 126].

Thetford Mines Town Corp. v. Amalgamated Asbestos Corp., [1916] 2 A.C. 588 (P.C.), refd to. [para. 126].

Law Society of British Columbia v. Lawrie et al., [1988] 1 W.W.R. 351; 46 D.L.R.(4th) 456 (B.C.S.C.), affd. [1991] 6 W.W.R. 619; 3 B.C.A.C. 142; 7 W.A.C. 142 (C.A.), refd to. [para. 132].

Commissioner of Taxes v. E. Estension Australasia etc. Co., [1906] A.C. 526 (N.Z.P.C.), refd to. [para. 155].

Lovell & Christmas v. Commissioner of Taxes, [1908] A.C. 46 (N.Z.P.C.), refd to. [para. 155].

International Harvester Co. v. Income Tax Commissioner, [1949] A.C. 36; [1948] 2 W.W.R. 1037 (P.C.), refd to. [para. 155].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 12 [para. 9].

Traffic Safety Act, R.S.A. 2000, c. T-6, sect. 153(1) [para. 34]; sect 153(2) [para. 38].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 354, 355 [para. 132].

Dicey, Morris and Collins on the Conflict of Laws (14th Ed. 2006), §§ 32-003, 32-004, 32-006, 32-007, 32-177 [para. 101].

Halsbury's Laws of England (3rd Ed. 1955) (1961 Update), vol. 36, p. 402 [para. 132].

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (2008 Looseleaf Update, Release 5), § 6, fn. (i) [paras. 17, 63].

Counsel:

P.D. Kirwin, for the appellants/applicants;

C.J. Ashmore, for the respondent/respondent.

This appeal was heard on October 30, 2008, before Côté, Picard and Watson, JJ.A., of the Alberta Court of Appeal. The reasons for judgment reserved of the Court of Appeal were filed on January 5, 2009, including the following opinions:

Watson, J.A. (Picard, J.A., concurring) - see paragraphs 1 to 43;

Côté, J.A., dissenting - see paragraphs 44 to 163.