Blaine Lake, No. 434 (Rural Municipality) v. Geransky Brothers Construction Ltd., (2008) 327 Sask.R. 91 (PC)

• Judge: White, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: December 04, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 327 Sask.R. 91 (PC);2008 SKPC 155

Blaine Lake v. Geransky Bros. Constr. (2008), 327 Sask.R. 91 (PC)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. DE.052

The Rural Municipality of Blaine Lake, No. 434 v. Geransky Bros. Construction Ltd.

(31753189; 31753729; 31753730; 2008 SKPC 155)

Indexed As: Blaine Lake, No. 434 (Rural Municipality) v. Geransky Brothers Construction Ltd.

Saskatchewan Provincial Court

White, P.C.J.

December 4, 2008.

Summary:

A construction company obtained discretionary use development permits from a rural municipality to operate gravel pits. The permits contained conditions respecting, inter alia, the hours of operation, the measuring of the amount of gravel excavated, and the provision of a letter of credit as security for reclamation. The construction company allegedly failed to provide the letter of credit, failed to accurately measure the excavated gravel, operated outside the permitted hours, and constructed an approach to the public highway without municipal approval. The company was charged with eight offences for violating the discretionary use development permits, the rural municipality's bylaw respecting gravel pits, and the Planning and Development Act. The company was also charged with violating s. 381(c) of the Municipalities Act relating to the construction of the approach. The company submitted that the rural municipality had no jurisdiction to enforce an alleged violation of a provincial statute. The company also submitted that the offences were strict liability offences and that it exercised due diligence. Alternatively, the company alleged that the rural municipality acted in bad faith throughout.

The Saskatchewan Provincial Court found the company guilty on eight of the nine charges. The rural municipality had jurisdiction to prosecute both violations of permits and its bylaws and provincial statute violations relating to municipal affairs. The company failed to exercise due diligence and there was no bad faith on the part of the rural municipality.

Courts - Topic 8127

Provincial courts - Saskatchewan - Provincial Court - Jurisdiction - Legality of municipal bylaws and resolutions - The Saskatchewan Provincial Court held that "it is not clear whether the Provincial Court of Saskatchewan has the jurisdiction to deal with the legality of bylaws or resolutions made by a RM council, even if the challenge to the legality ... is incidental to the main action. ... The obvious problem ... is that the Provincial Court is a statutory court which has no jurisdiction except as specifically granted by the legislature ... The Provincial Court, for example, has no jurisdiction to issue declarations and injunctions against municipal bodies" - The court stated that the normal practice when dealing with the legality of bylaws and resolutions was to apply to the Court of Queen's Bench for declaratory and injunctive relief - See paragraphs 102 to 104.

Municipal Law - Topic 411

Councils - Resolutions - Quashing of - Grounds - Bad faith - [See Trials - Topic 1172 ].

Municipal Law - Topic 411

Councils - Resolutions - Quashing of - Grounds - Bad faith - The Saskatchewan Provincial Court stated that "a resolution made in bad faith by a municipal council is, in law, a nullity because if a resolution is not passed in good faith and in the public interest, then the council has exceeded its lawful jurisdiction." - See paragraph 101.

Municipal Law - Topic 3982

Bylaws - Enforcement or prosecution - Nature of - A construction company obtained discretionary use development permits from a rural municipality to operate gravel pits - The permits contained conditions respecting, inter alia, the hours of operation, the measuring of the amount of gravel excavated, and the provision of a letter of credit as security for reclamation - The construction company allegedly failed to provide the letter of credit, failed to accurately measure the excavated gravel, operated outside the permitted hours, and constructed an approach to the public highway without municipal approval - The company was charged with eight offences for violating the discretionary use development permits, the rural municipality's bylaw respecting gravel pits, and the Planning and Development Act - The company was also charged with violating s. 381(c) of the Municipalities Act relating to the construction of the approach - The company submitted that the rural municipality had no jurisdiction to enforce an alleged violation of a provincial statute - The Saskatchewan Provincial Court rejected the submission - The court stated that "it is an offence to contravene a [rural municipality] bylaw or bylaws. Such a contravention may constitute an offence as being contrary to the enforcement provision of the RM bylaws. It may also constitute an offence as being contrary to other provincial statutes. In this case, the offences alleged are contraventions of: the Zoning Bylaw of the RM [charge #9]; s. 381(c) of the Municipalities Act [charge #8]; and, s. 243(1)(a)(ii) of the Planning and Development Act [charges #1-7]." - See paragraphs 74 to 93, 113 to 121.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - A construction company obtained discretionary use development permits from a rural municipality to operate gravel pits - The permits contained conditions respecting, inter alia, the hours of operation, the measuring of the amount of gravel excavated, and the provision of a letter of credit as security for reclamation - The construction company allegedly failed to provide the letter of credit, failed to accurately measure the excavated gravel, operated outside the permitted hours, ignored stop work orders, and constructed an approach to the public highway without municipal approval - The company was charged with eight offences for violating the discretionary use development permits, the rural municipality's bylaw respecting gravel pits, and the Planning and Development Act - The company was also charged with violating s. 381(c) of the Municipalities Act relating to the construction of the approach - The Saskatchewan Provincial Court rejected the defences of due diligence (on eight of nine counts) and bad faith by the municipality council for the strict liability offences - The company disagreed with the municipality's requirements, which it felt were unfair and unjustified and deliberately failed to comply because it felt singled out and discriminated against by a municipal council in acting in bad faith - A conscious decision to ignore requirements that were disagreed with did not constitute due diligence - Council clearly acted in good faith in providing specific restrictions in attempting to regulate gravel pits - The fact that no other pit operator was charged, and were not all subject to the same restrictions, did not provide a defence - The company had the option of seeking declaratory relief in the Court of Queen's Bench if it disagreed with what it was required to do - See paragraphs 113 to 136.

Cases Noticed:

101051287 Saskatchewan Ltd. v. Saskatoon (City) (2004), 254 Sask.R. 174; 2004 CarswellSask 638; 2005 SKQB 361, refd to. [para. 84].

Corman Park No. 344 (Rural Municipality) v. Saskatoon Berry Farms Ltd. (1994), 121 Sask.R. 212; 1994 CarswellSask 74 (Q.B.), affd. (1995), 137 Sask.R. 259; 1995 CarswellSask 415 (C.A.), refd to. [para. 84].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 94, footnote 41].

R. v. Loerzel (R.) (2007), 304 Sask.R. 141; 413 W.A.C. 141 (C.A.), refd to. [para. 94, footnote 41].

Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), refd to. [para. 98].

R. v. Vanguard Hutterian Brethren Inc., [1979] 6 W.W.R. 335; 5 Sask.R. 376, refd to. [para. 101, footnote 42].

Kuchma v. Tache (Rural Municipality), [1945] S.C.R. 234, refd to. [para. 101, footnote 43].

Poole v. Tomlinson (1957), 21 W.W.R. 511 (Sask. Q.B.), refd to. [para. 101, footnote 43].

Bourassa v. Saskatoon (City), [1979] 5 W.W.R. 380 (Sask. Q.B.), refd to. [para. 103, footnote 44].

Nanaimo (City) v. Rascal Trucking Ltd. et al. (2000), 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 113. footnote 68].

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. 114, footnote 69].

R. v. Guignard (R.) (2002), 282 N.R. 365; 2002 SCC 14, refd to. [para. 118, footnote 70].

R. v. Nychuk, [1939] 2 W.W.R. 257 (B.C.C.A.), refd to. [para. 121, footnote 71].

Swift Current (Rural Municipality) v. Lang & Sons Holdings Ltd. (1993), 116 Sask.R. 21; 59 W.A.C. 21 (C.A.), refd to. [para. 121, footnote 72].

Auto Gallery 1994 Ltd. v. Regina (City) (2006), 292 Sask.R. 294 (Q.B.), refd to. [para. 121, footnote 72].

Hughes v. Eston (Town) (2008), 309 Sask.R. 167 (Q.B.), refd to. [para. 127, footnote 73].

Henderson et al. v. Saskatoon (City) et al. (2008), 318 Sask.R. 9; 2008 SKQB 135, refd to. [para. 127, footnote 73].

Miller v. Boxall et al. (2006), 283 Sask.R. 257; 2006 SKQB 403, refd to. [para. 134].

Toronto (City) v. Polai, [1973] S.C.R. 38, refd to. [para. 134, footnote 75].

Homeland Oasis Corp. v. Markham (Town), [2004] O.A.C. Uned. 634; 6 M.P.L.R. (4th) 265; 2004 CarswellOnt 5040 (Div. Ct.), refd to. [para. 135, footnote 76].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (1st Ed. 1974), p. 67 [para. 113, footnote 67].

Counsel:

T.M. Paulsen and John Knox, for the Crown;

R. Wiebe, for the accused.

This case was heard at Blaine Lake, Saskatchewan, before White, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on December 4, 2008.