Argyll Community League (1978) v. Edmonton (City) et al., (2009) 467 A.R. 93 (QB)

• Judge: Shelley, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Thursday October 30, 2008
• Citations: (2009), 467 A.R. 93 (QB);2009 ABQB 66

Argyll Com. League v. Edmonton (2009), 467 A.R. 93 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. FE.027

In The Matter Of the Municipal Government Act, R.S.A. 2000, c. M-26, as amended;

And In The Matter Of the City of Edmonton North Saskatchewan River Valley Area Development Plan Bylaw No. 7188;

And In The Matter Of a motion by the Council of the City of Edmonton, to approve the redevelopment of the Argyll Velodrome at the existing Argyll Park Location.

Argyll Community League (1978)

(applicant) v. The City of Edmonton and the Council of the City of Edmonton (respondents)

(0803 08267; 2009 ABQB 66)

Indexed As: Argyll Community League (1978) v. Edmonton (City) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Shelley, J.

January 30, 2009.

Summary:

The city passed a motion approving the redevelopment of the Argyll Velodrome at its existing river valley location. The Argyll Community League (1978) sought an order quashing the motion.

The Alberta Court of Queen's Bench allowed the application, declaring the motion void.

Land Regulation - Topic 3345

Land use control - Official or development plans - Effect of - [See first and second Municipal Law - Topic 1582 ].

Municipal Law - Topic 421

Councils - Decisions of - General - [See first and second Municipal Law - Topic 1582 ].

Municipal Law - Topic 423

Councils - Decisions of - Judicial review (incl. standard of review) - Section 3.5.1 of the North Saskatchewan River Valley Area Development Plan Bylaw (the bylaw) stated that major public facilities were not to be constructed or expanded in the river valley unless the location was deemed essential and approved by the city council - Section 3.5.3 stated that (1) all proposals for the development of a major facility that was publicly owned or was developed on public lands were subject to a environmental impact screening assessment and (2) a site location study detailing costs, and social, environmental and institutional constraints which made a river valley location essential had to be prepared for council approval - These studies were to be undertaken prior to council committing funds for the development - The city passed a motion approving the redevelopment of the Argyll Velodrome at its existing river valley location - The Argyll Community League (1978) sought an order quashing the motion, asserting that the city's procedure had contravened s. 48(1) of the Procedures and Committees Bylaw and that the city had incorrectly interpreted s. 3.5.1 and had failed to comply with s. 3.5.3 - The Alberta Court of Queen's Bench held that the standard of review was correctness - What was primarily at issue was the interpretation of bylaws: whether the process contravened the Procedures and Committees Bylaw and, if so, the effect of such contravention; whether the city satisfied the requirements of the bylaw and complied with all preconditions; and whether the motion's wording was sufficient to effectively deem the location essential - These were largely questions of law, involving questions of procedure and process which went to the proper exercise of jurisdiction - Regarding the interpretation of legislation, the courts had far greater expertise than members of council - Little deference was owed to the decision - See paragraphs 32 to 36.

Municipal Law - Topic 1582

Powers of municipalities - Exercise of powers - Discretionary powers - Section 3.5.1 of the North Saskatchewan River Valley Area Development Plan Bylaw (the bylaw) stated that major public facilities were not to be constructed or expanded in the river valley unless the location was deemed essential and approved by the city council - The city passed a motion approving the redevelopment of the Argyll Velodrome at its existing river valley location - The Argyll Community League (1978) sought an order quashing the motion, asserting, inter alia, that the city incorrectly interpreted s. 3.5.1 when it failed to hold a vote deeming the river valley location for the Velodrome "essential" - The Alberta Court of Queen's Bench allowed the application - The court rejected the city's assertion that the motion should be construed as including the deeming by council of the existing location as essential for the Velodrome's redevelopment - If "approved" was intended to encompass "deemed essential" then there would have been no need to refer in the bylaw to the deeming of the location as essential - Approval alone would have sufficed - Section 3.5.1 clearly contemplated two separate actions: first, the deeming of the location as essential; and second, the approval - The deeming of the existing location to be essential was an extremely important requirement of the bylaw - Such a step should not be presumed or inferred - Even when read in conjunction with the 97 page transcript of the proceedings, the motion did not address an essential precondition to the approval of the Velodrome's redevelopment at the existing location, namely, the deeming of that location to be essential - While the city had considerable discretion under the bylaw, the failure to comply with mandatory procedural requirements meant that the purported decision was ineffective - The motion was declared void - See paragraphs 37 to 40 and 46.

Municipal Law - Topic 1582

Powers of municipalities - Exercise of powers - Discretionary powers - Section 3.5.1 of the North Saskatchewan River Valley Area Development Plan Bylaw (the bylaw) stated that major public facilities were not to be constructed or expanded in the river valley unless the location was deemed essential and approved by the city council - Section 3.5.3 stated that (1) all proposals for the development of a major facility that was publicly owned or was developed on public lands were subject to a environmental impact screening assessment and (2) a site location study detailing costs, and social, environmental and institutional constraints which made a river valley location essential had to be prepared for council approval - These studies were to be undertaken prior to council committing funds for the development - The city passed a motion approving the redevelopment of the Argyll Velodrome at its existing river valley location - The Argyll Community League (1978) sought an order quashing the motion, asserting, inter alia, that the council failed to have prepared and to have held a vote approving the detailed site location study required under s. 3.5.3 - The Alberta Court of Queen's Bench allowed the application - The court rejected the city's assertion that s. 3.5.3 was divorced from s. 3.5.1 such that council could deem a river valley location essential and approve it without having reviewed the site location study - The only interpretation of s. 3.5.3 was to read it in conjunction with s. 3.5.1 and to view the preparation and approval of the environmental assessment and the site location study as preconditions to council's decision to deem the location essential and approve the development - The requirements of s. 3.5.3 were not complied with prior to the passage of the motion - While the city had considerable discretion under the bylaw, the failure to comply with mandatory procedural requirements meant that the purported decision was ineffective - The motion was declared void - See paragraphs 41 to 46.

Municipal Law - Topic 1582

Powers of municipalities - Exercise of powers - Discretionary powers - Section 48(1) of the Procedures and Committees Bylaw (the bylaw) stated that "Council or a Standing Committee may give instructions to the City Manager, but Councillors must not give direct instructions to the City manager or to the employees of the City Manager without a specific direction from Council or a Standing Committee" - A group of citizens interested in the Argyll Velodrome came to meet with their city councillor - The councillor determined that the Community Services Department was responsible for the particular issue and referred the group to that department - Subsequently, the city passed a motion approving the redevelopment of the Velodrome at its existing river valley location - The Argyll Community League (1978) sought an order quashing the motion, asserting, inter alia, that s. 48(1) of the bylaw was not complied with because the instructions to initiate the planning for the location search for the Velodrome came directly from the councillor to the Community Services Department, without a specific direction from council or a standing committee - The Alberta Court of Queen's Bench rejected this argument - Referring a group of concerned citizens to an appropriate department did not amount to giving instructions - This was the type of activity that councillors had to engage in on a frequent basis - It fell far short of the type of individual action sought to be curtailed by s. 48(1) - The councillor took no further steps following the referral - There was no contravention of the bylaw - See paragraphs 47 and 48.

Cases Noticed:

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; 291 D.L.R.(4th) 577; 2008 CarswellNB 124, refd to. [para. 12].

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, refd to. [para. 14].

Love et al. v. Subdivision and Development Appeal Board (Flagstaff (County) (2002), 317 A.R. 261; 284 W.A.C. 261 (C.A.), refd to. [para. 15].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 22].

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. [para. 25].

Duemler v. Edmonton (City) (2007), 428 A.R. 375; 2007 ABQB 575, affd. (2009), 446 A.R. 144; 442 W.A.C. 144; 2009 ABCA 19, refd to. [para. 31].

Statutes Noticed:

Edmonton (City) Bylaws, North Saskatchewan River Valley Area Development Plan Bylaw, Bylaw No. 7188, sect. 3.5.1, sect. 3.5.3 [para. 11].

Edmonton (City) Bylaws, Procedures and Committees Bylaw, Bylaw No. 12300, sect. 48(1) [para. 11].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 158, 159 [para. 20].

Counsel:

Nicholas J. Parker (Reynolds, Mirth, Richards & Farmer LLP), for the applicant;

Mark S. Young (The City of Edmonton), for the respondents.

This application was heard on October 30, 2008, by Shelley, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 30, 2009.