Brown et al. v. Calgary (City) et al., (1980) 22 A.R. 148 (CA)

• Judge: Prowse, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 02, 1980
• Citations: (1980), 22 A.R. 148 (CA)

Brown v. Calgary (1980), 22 A.R. 148 (CA)

MLB headnote and full text

Brown et al. v. Calgary, City of et al.

(12255)

Indexed As: Brown et al. v. Calgary (City) et al.

Alberta Court of Appeal

Prowse, Moir and Haddad, JJ.A.

April 2, 1980.

Summary:

This case arose out of a petition by several electors of the City of Calgary pursuant to s. 126.2 of the Municipal Government Act. The petition, in s. 1, requested the repeal of a bylaw which increased the remuneration to members of the city council. In s. 2 of the petition the electors requested the city council to submit a bylaw to electors which would have required approval by the electors (in a plebiscite) of any increase in remuneration to members of the city council. The electors commenced an action for a declaration that the petition was valid. The defendant City of Calgary applied for a dismissal of the action on the ground that the petition was invalid. The Alberta Supreme Court, Trial Division, declared the petition invalid and dismissed the action by the electors. The judgment of the Trial Division is reported at 17 A.R. 78. The electors appealed to the Alberta Court of Appeal.

The Alberta Court of Appeal allowed the appeal and declared that s. 1 of the petition was valid. The Court of Appeal held that s. 2 of the petition was invalid because the subject matter was not within the legislative jurisdiction of the city council as required by s. 126.2 of the Municipal Government Act.

Prowse, J.A., dissenting, in the Alberta Court of Appeal, would have dismissed the appeal and would have declared the whole of the petition invalid on the ground of uncertainty - see paragraph 42.

Municipal Law - Topic 7466

Plebiscites - Invalid petitions - Subject matter of petition - Electors of the City of Calgary petitioned the city council to submit a bylaw to the electors which would have required approval by the electors (in a plebiscite) of any increase in remuneration to members of the city council - The Alberta Court of Appeal declared that such a petition was invalid because it was not within the legislative jurisdiction of the council as required by s. 126.2 of the Municipal Government Act - See paragraphs 2, 17 and 41.

Municipal Law - Topic 7423

Plebiscites - Form of petition - The Alberta Court of Appeal approved the form of a petition from voters requesting the repeal of a bylaw - See paragraphs 2, 9 and 24.

Municipal Law - Topic 7434

Plebiscites - Petition - Validity of petition, severance of invalid portion from valid portion - The Alberta Court of Appeal severed an invalid portion in a petition and declared valid the remainder of the petition - See paragraphs 18 and 22.

Administrative Law - Topic 1267

Classification of power or function - Powers classified as legislative - The Alberta Court of Appeal stated that the power of a municipal council to fix remuneration for members of the council was a legislative power - See paragraph 7.

Cases Noticed:

O'Callaghan v. City of Edmonton (1978), 12 A.R. 563; 6 A.L.R.(2d) 307, refd to. [para. 7].

Cholod et al. v. Baker et al. and City of Regina, 6 N.R. 525; [1976] 2 W.W.R. 609; [1976] 2 S.C.R. 484, refd to. [paras. 14, 24].

R. v. Grand, [1940] 2 D.L.R. 549, dist. [para. 14].

Hill v. Municipal District of Rockyview No. 44, 12 A.R. 238; 7 A.L.R.(2d) 247, refd to. [para. 7].

Statutes Noticed:

Rules of Court (Alta.), rule 221 [para. 4].

Municipal Government Act, R.S.A. 1970, c. 246, sect. 126.2 [para. 6].

Counsel:

R.T.G. McBain, Q.C., for plaintiffs (appellants);

R. Kambeitz, for defendants (respondents).

This appeal was heard by PROWSE, MOIR and HADDAD, JJ.A., of the Alberta Court of Appeal.

The judgment of the Alberta Court of Appeal was delivered on April 2, 1980 and the following opinions were filed:

MOIR, J.A. - see paragraphs 1 to 19.

HADDAD, J.A. - see paragraphs 20 to 32.

PROWSE, J.A., dissenting - see paragraphs 33 to 43.