Duffield et al. v. Prince Albert (City), 2015 SKCA 46

• Judge: Jackson, Ottenbreit and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 13, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 46;(2015), 457 Sask.R. 271 (CA)

Duffield v. Prince Albert (2015), 457 Sask.R. 271 (CA);

    632 W.A.C. 271

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.065

Cathy Duffield and Rahim Basaria (appellants) v. City of Prince Albert (respondent)

(CACV2565; 2015 SKCA 46)

Indexed As: Duffield et al. v. Prince Albert (City)

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Caldwell, JJ.A.

April 28, 2015.

Summary:

The applicants, invoking s. 320(1) of the Cities Act, sought to quash a bylaw that precluded taxicabs from being driven through an off-sale drive-thru liquor outlet in the City of Prince Albert. They argued that: (1) the City did not follow the proper procedure under the Act, particularly the strictures respecting the passage of bylaws as mandated by s. 77; and (2) the bylaw was ultra vires a municipal government because its primary purpose, or its pith and substance, was the regulation of the sale of alcohol which fell under provincial jurisdiction.

The Saskatchewan Court of Queen's Bench, in a decision reported at 449 Sask.R. 298, dismissed the application. The applicants appealed.

The Saskatchewan Court of Appeal applied a correctness standard of review and dismissed the appeal.

Municipal Law - Topic 1497

Powers of municipalities - Particular powers - Licensing and regulating taxis, limousines, shuttles, etc. - [See Municipal Law - Topic 3842 ].

Municipal Law - Topic 3208

Bylaws - General principles - Presumption of validity - [See Municipal Law - Topic 3842 ].

Municipal Law - Topic 3384

Bylaws - Enactment - Statutory requirements - The applicants, invoking s. 320(1) of the Cities Act, sought to quash a bylaw that precluded taxicabs from being driven through an off-sale drive-thru liquor outlet in the City of Prince Albert - They argued that the City did not follow the proper procedure under the Act - They claimed that the bylaw was given three readings on May 12, 2014 and that it was done without the unanimous agreement mandated by s. 77(4) - The City replied that the bylaw was given a first reading on April 7, 2014 and that an amended version of that bylaw was read twice on May 12, all as contemplated by s. 77(3) - Section 79 of the Act provided that a bylaw was passed when it received a third reading - The City asserted that this occurred on May 12, 2014 - The chambers judge held that the City followed the proper procedure - The change in the wording of the bylaw from the first reading on April 7 (prohibition on "taxicab drivers") to the final reading on May 12 (prohibition on "taxicab owners") was not such that it changed the bylaw's essential character - It was simply an amendment that expanded the scope of the regulation - This was exactly what was contemplated by s. 77(3) - The applicants appealed - The Saskatchewan Court of Appeal applied a correctness standard of review and dismissed the appeal - See paragraphs 5 to 10.

Municipal Law - Topic 3462

Bylaws - Amendment or variation - Jurisdiction - The Saskatchewan Court of Appeal stated that "although it addresses bylaw amendments, s. 81 of the Cities Act cannot be said ... to generally require the Respondent to re-engage in public consultation and re-comply with other requirements by reason of a modest change in the language of any proposed bylaw made after its first reading ... On its plain and ordinary meaning, s. 81 relates to the amendment and repeal of bylaws after they have passed into law, and not before then." - See paragraph 9.

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - The applicants, invoking s. 320(1) of the Cities Act, sought to quash a bylaw that precluded taxicabs from being driven through an off-sale drive-thru liquor outlet in the City of Prince Albert - They argued that the bylaw was ultra vires because its primary purpose, or pith and substance, was the regulation of the sale of alcohol, which fell under provincial jurisdiction - The chambers judge rejected the argument - The applicants appealed - The Saskatchewan Court of Appeal applied a correctness standard and dismissed the appeal - The subject-matter fell within the City's jurisdiction under s. 8 of the Act (transport and transportation systems, including carriers of persons or goods; use of vehicles) - Moreover, council never intended to pass a bylaw to regulate, in pith and substance, the sale of alcohol - Its objective was always, in pith and substance, to regulate the taxicab business so as to mitigate the safety risks to taxicab operators arising from their patrons' use of drive-thru off-sale liquor outlets - At worst, the municipal purpose might be characterised as an attempt to prevent individuals from using taxicabs to circumvent existing provincial regulation governing the sale of alcohol - The bylaw was not ultra vires the City by reason of the municipal law doctrines of bad faith or improper purpose - The presumption of validity was not rebutted - Similarly, regarding the constitutional doctrine of paramountcy, the presumption that the bylaw was a legitimate exercise of the City's municipal power had not been rebutted - See paragraphs 11 to 35.

Municipal Law - Topic 3844

Bylaws - Quashing bylaws - Grounds for judicial interference - Invalid purpose - [See Municipal Law - Topic 3842 ].

Municipal Law - Topic 3853

Bylaws - Quashing bylaws - Grounds for judicial interference - Lack of good faith - [See Municipal Law - Topic 3842 ].

Cases Noticed:

Ottawa Electric Light Co. v. Ottawa (City) (1906), 12 O.L.R. 290 (C.A.), refd to. [para. 30].

Merritt v. Toronto (City) (1895), 22 O.A.R. 205 (C.A.), refd to. [para. 30].

R. v. Greenbaum (M.), [1993] 1 S.C.R. 674; 149 N.R. 114; 61 O.A.C. 241, refd to. [para. 30].

Hamilton (City) v. Hamilton Distillery Co. (1907), 38 S.C.R. 239, refd to. [para. 30].

Kuchma v. Tache (Rural Municipality), [1945] S.C.R. 234, refd to. [para. 30].

Bartling v. Danby (1911), 1 W.W.R. 428 (Sask. Dist. Ct.), refd to. [para. 30].

Brown Transfer Co. v. Townshend, [1927] 1 W.W.R. 916 (Sask. Dist. Ct.), refd to. [para. 30].

Morrison v. Kingston (City), [1937] 4 D.L.R. 740 (Ont. C.A.), refd to. [para. 30].

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. 32].

Statutes Noticed:

Cities Act, S.S. 2002, c. C-11.1, sect. 6 [para. 31]; sect. 8(1)(e), sect. 8(1)(f), sect. 8(3)(a), sect. 3(d)(i) [para. 12]; sect. 77 [para. 5]; sect. 81 [para. 9].

Authors and Works Noticed:

Dillon on Municipal Corporations (4th Ed. 1890), generally [para. 30].

Hoehn, Felix, Municipalities and Canadian Law: Defining the Authority of Local Governments (1996), pp. 21 to 24 [para. 33].

Makuch, Stanley M., Craik, Neil, and Leisk, Signe B., Canadian Municipal and Planning Law (2nd Ed. 2004), pp. 100 to 102 [para. 15].

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (2nd Ed. 2009) (2014 Looseleaf, Release 11), vol. 2 [para. 16].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 366 to 373 [para. 13]; 369 [para. 18].

Counsel:

Peter A. Abrametz, for the appellants;

Mitchell J. Holash, Q.C., for the respondent.

This appeal was heard on February 13, 2015, by Jackson, Ottenbreit and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. Caldwell, J.A., delivered the following decision for the court on April 28, 2015.