Cherished Memories Funeral Services and Crematory Inc. v. Martensville (City), 2012 SKQB 134

• Judge: Danyliuk, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 02, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKQB 134;(2012), 395 Sask.R. 206 (QB)

Cherished Memories v. Martensville (2012), 395 Sask.R. 206 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AP.034

In The Matter Of Bylaw 21-2008 of the City of Martensville

Cherished Memories Funeral Services and Crematory Inc. (applicant) v. The City of Martensville (respondent)

(2012 Q.B.G. No. 285; 2012 SKQB 134)

Indexed As: Cherished Memories Funeral Services and Crematory Inc. v. Martensville (City)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Danyliuk, J.

April 2, 2012.

Summary:

The applicant conducted its business at the corner of Centennial Drive and Baycroft Drive. In July 2008, the city passed a bylaw authorizing the paving of Baycroft to be financed by a special assessment. In February 2012, the applicant sought judicial review to quash the bylaw.

The Saskatchewan Court of Queen's Bench dismissed the application.

Administrative Law - Topic 3306

Judicial review - General - Bars - Delay - The applicant conducted its business at the corner of Centennial Drive and Baycroft Drive - In July 2008, the city passed a bylaw authorizing the paving of Baycroft to be financed by a special assessment - Owners of corner lots, such as the applicant's, were 75% exempt from the assessment - Another landowner challenged his assessment - While the challenge was successful, in the course of its decision, the Saskatchewan Municipal Board (SMB) held that the 75% reduction was invalid - After learning of this, in November 2010, the applicant had its lawyer contact the city - The dispute was unresolved - In February 2012, the applicant sought judicial review to quash the bylaw - The Saskatchewan Court of Queen's Bench dismissed the application - The delay in bringing the application (either 41 months from the bylaw decision or 17 months from the SMB ruling) was inordinate - Judicial review applicants were obliged to act in a timely manner - Further, the 60 day time limit for challenging a bylaw in s. 358 of the Municipalities Act was relevant, particularly in conjunction with rule 675 regarding undue delay in judicial review applications - Nothing in the material explained the delay - To grant the relief requested now would be detrimental to the city's good administration and would likely result in hardship or prejudice to the city - See paragraphs 11 to 31.

Municipal Law - Topic 908

Council members - Conflicts of interest - Pecuniary interest - The applicant conducted its business at the corner of Centennial Drive and Baycroft Drive - In July 2008, the city passed a bylaw authorizing the paving of Baycroft to be financed by a special assessment - One of the city councillors who voted for the bylaw held an interest in a company that flanked Baycroft - In February 2012, the applicant sought judicial review to quash the bylaw - Section 144 of the Municipalities Act provided that a councillor with a pecuniary interest had to declare the interest, abstain from voting and discussion and leave the room until the matter was dealt with - Section 145 provided that where a councillor failed to follow that process, the vote was not void, but the council had three years in which to declare the bylaw void - At issue was the effect of s. 145 on the application for judicial review - The Saskatchewan Court of Queen's Bench, having dismissed the application due to undue delay, held that, even assuming that the councillor had a pecuniary interest, s. 145 operated to preserve and validate the bylaw, particularly where the three years had passed - The judicial review application was also dismissed on that basis - See paragraphs 32 to 38.

Municipal Law - Topic 3859

Bylaws - Quashing bylaws - Grounds for judicial interference - Conflict with statute or regulations - [See Municipal Law - Topic 908 ].

Municipal Law - Topic 3890

Bylaws - Quashing bylaws - Judicial review - Practice - Limitation period - [See Administrative Law - Topic 3306 ].

Municipal Law - Topic 3902

Bylaws - Quashing bylaws - Judicial review - Bars - Tardiness or delay - [See Administrative Law - Topic 3306 ].

Municipal Law - Topic 3905

Bylaws - Quashing bylaws - Judicial review - Bars - Statutory bars - [See Administrative Law - Topic 3306 ].

Cases Noticed:

Henry v. Workers' Compensation Board (Sask.) (1999), 177 Sask.R. 35; 199 W.A.C. 35; 172 D.L.R.(4th) 73 (C.A.), refd to. [para. 13].

McCarty v. College of Psychologists (Sask.) (2011), 391 Sask.R. 105; 2011 SKQB 471, refd to. [para. 14].

Holowachuk v. Workers' Compensation Board (Sask.) (2009), 329 Sask.R. 131; 2009 SKQB 74, refd to. [para. 14].

Warner v. Workers' Compensation Board (Sask.) (2007), 292 Sask.R. 283; 2007 SKQB 76, refd to. [para. 14].

Durr v. Saskatchewan (Minister of Highways and Transportation) et al., [2000] Sask.R. Uned. 285; 2000 SKQB 566, refd to. [para. 14].

Basu v. College of Physicians and Surgeons (Sask.) (1988), 70 Sask.R. 254 (Q.B.), refd to. [para. 18].

Breton v. Battlefords Union Hospital Board (1992), 6 Admin. L.R.(2d) 11 (Sask. Q.B.), refd to. [para. 18].

Kane et al. v. Lac Pelletier No. 107 (Rural Municipality) (2009), 342 Sask.R. 113; 2009 SKQB 348, refd to. [para. 18].

Gook Country Estates Ltd. v. Quesnel (City) et al., [2006] B.C.T.C. Uned. D08; 26 M.P.L.R.(4th) 36; 48 R.P.R.(4th) 16; 2006 BCSC 1382, refd to. [para. 20].

Siurko v. Candle Lake (Resort Village) (2006), 286 Sask.R. 58; 2006 SKQB 421, refd to. [para. 34].

Counsel:

Richard K. Gabruch, for the applicant;

Michael J. Krawchuk, for the respondent.

This application was heard by Danyliuk, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on April 2, 2012.