Babiuk v. Calgary (City), (1992) 133 A.R. 21 (QB)

• Judge: Moshansky, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 01, 1992
• Citations: (1992), 133 A.R. 21 (QB)

Babiuk v. Calgary (1992), 133 A.R. 21 (QB)

MLB headnote and full text

In the Matter of the Alberta Municipal Government Act, R.S.A. 1980, c. M-26;

And in the Matter of an application pursuant to Parts 33 and 56.1 of the Alberta Rules of Court;

And in the Matter of an application on behalf of an elector, Elke Babiuk, of the City of Calgary, in the Province of Alberta.

Between:

Elke Babiuk (applicant) v. The City of Calgary (respondent)

(No. 9201-12651)

Indexed As: Babiuk v. Calgary (City)

Alberta Court of Queen's Bench

Judicial District of Calgary

Moshansky, J.

September 1, 1992.

Summary:

In 1989 the City of Calgary passed a water fluoridation bylaw. In 1991 an elector of the city presented a petition to the City Clerk that requested rescission of the fluoridation bylaw and a plebiscite. The City Clerk rejected the petition because it did not com­ply with the Municipal Government Act. The elector applied for a declaration that the petition was valid.

The Alberta Court of Queen's Bench dis­missed the application because the petition was filed out of time and also because the petition lacked a signed statement required by the Municipal Government Act.

Municipal Law - Topic 7424

Plebiscites - Petition - Form, statutory requirements - An elector presented a city with a petition that requested the rescission of a water fluoridation bylaw and a plebi­scite - The Alberta Court of Queen's Bench held that the petition was invalid because it omitted a signed statement of a person whose name appears on the peti­tion, as required by s. 6(5) of the Munici­pal Government Act - See paragraphs 33 to 38.

Municipal Law - Topic 7428

Plebiscites - Petition - Limitation period -An elector presented a city with a petition that requested the rescission of a water fluoridation bylaw and a plebiscite - The city alleged that the petition was out of time (s. 125 of the Municipal Government Act required that a petition to repeal an existing bylaw be filed within 60 days of the passing of the existing bylaw) - The elector attacked s. 125 because it was inconsistent with s. 198.1(6) that provided for the rescission of a fluoridation bylaw within two years - The Alberta Court of Queen's Bench held that the two sections were not inconsistent because s. 198.1(6) applied only to a council acting of its own volition - See paragraphs 26 to 32.

Cases Noticed:

Gilmore v. Callies (1911), 19 W.L.R. 545 (Alta. S.C.), refd to. [para. 18].

Jericho Area Citizens Assn. v. Vancouver (1979), 12 B.C.L.R. 313 (S.C.), refd to. [para. 19].

Henning v. Calgary (City), [1975] 3 W.W.R. 493 (Alta. C.A.), refd to. [para. 20].

Charleston et al. v. MacGregor et al. (1957), 23 W.W.R.(N.S.) 353 (Alta. S.C.), refd to. [para. 22].

O'Callaghan v. Edmonton (1978), 12 A.R. 563; 6 Alta. L.R.(2d) 307 (Dist. Ct.), refd to. [para. 24].

R. v. Beaver (1984), 51 A.R. 159; [1984] 4 W.W.R. 371 (C.A.), refd to. [para. 28].

Valleyview Heritage Assoc. Inc. et al. v. Estevan (City) et al. (No. 2) (1989), 81 Sask.R. 84; 47 M.P.L.R. 24 (Q.B.), refd to. [para. 36].

Shiers v. Moose Jaw (City) (1990), 88 Sask.R. 255; 4 M.P.L.R.(2d) 87 (Q.B.), refd to. [para. 37].

Statutes Noticed:

Municipal Government Act, R.S.A. 1980, c. M-26, sect. 6(5), sect. 125(2) [para. 10]; sect. 198.1(6) [para. 26].

Rules of Court (Alta.), rule 753.11 [para. 24].

Counsel:

M.D. Allen, for the applicant;

B. Inlow, for the City of Calgary.

This application was heard by Moshansky, J., of the Alberta Court of Queen's Bench. The decision of Moshansky, J., was delivered on September 1, 1992.