Envision Edmonton Opportunities Society et al. v. Edmonton (City), (2011) 507 A.R. 275 (QB)

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 14, 2011
• Citations: (2011), 507 A.R. 275 (QB);2011 ABQB 29

Envision Edmonton Opportunities Soc. v. Edmonton (2011), 507 A.R. 275 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. FE.014

In The Matter of the Municipal Government Act being Chapter M-26 of the Revised Statutes of Alberta, 2000 and Amendments Thereto

Envision Edmonton Opportunities Society and Charles Allard (applicants/respondents) v. The City of Edmonton (respondent/applicant)

(1003 16883; 2011 ABQB 29)

Indexed As: Envision Edmonton Opportunities Society et al. v. Edmonton (City)

Alberta Court of Queen' s Bench

Judicial District of Edmonton

Moen, J.

January 19, 2011.

Summary:

The City of Edmonton closed an airport. Envision Edmonton Opportunities Society circulated a petition demanding that the city keep the airport open and presented the petition to the city. The city clerk rejected the petition because it was filed outside the time limit in s. 233(2) of the Municipal Government Act and it was not signed by the required number of electors. Envision applied for judicial review (mandamus), raising two distinct issues (i.e., the limitations issue (the first question) and the petition issue (second question). The city applied to have the first question severed and heard first.

The Alberta Court of Queen's Bench allowed the city's application to sever the issues, ordering that the first question would be dealt with first.

Practice - Topic 3

General principles and definitions - Policy of practice rules - [See first Practice - Topic 5204 ].

Practice - Topic 5

General principles and definitions - Nature and interpretation of practice rules - [See first and second Practice - Topic 5204 ].

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - On November 1, 2010, new Rules of Court came into force in Alberta - The new Rules introduced rule 1.2 under the broad heading "Foundational Rules" and the more specific heading "Purpose and Intention of These Rules" - Rule 7.1(1)(a) was a new rule respecting resolving of issues without full trial - The Alberta Court of Queen's Bench noted that rule 1.2 was a "purpose statement" and that the new rules had to be interpreted in such a way as to give effect to the purpose statement - Thus new rule 7.1(1)(a) had to be interpreted in light of rule 1.2 (i.e., in such a way so as to give effect to those principles and be consistent with the purposes set out in rule 1.2) - The court stated that the effect of reading rule 7.1(1) in light of rule 1.2 "... signals that the court should be more willing to grant remedies with the potential to provide a more timely and cost-effective result without sacrificing fairness and justice. If the court can narrow the focus of a trial and do away with the necessity for a long trial without sacrificing fairness or justice, it should do so, recognizing that providing litigants with a timely and cost-effective result serves the ends of justice" - See paragraphs 34 to 48.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The new Alberta Rules of Court (November 1, 2010) introduced rule 1.2 under the headings "Foundational Rules" and "Purpose and Intention of These Rules" - Rule 7.1(1)(a) was a new rule respecting resolving of issues without full trial - At issue was whether new rule 7.1(1)(a) changed the test for severance - The Alberta Court of Queen's Bench concluded that the "exceptional case" test no longer applied and rejected adoption of the "just and convenient test" - Under the new Rules, what had to be considered were the grounds and considerations actually laid out in rule 7.1(1)(a) interpreted through the lens of rule 1.2 - Therefore, the court had to view each severance application by first analysing the three parts to the test in rule 7.1(1)(a) (i.e., whether severance would dispose of all or part of a claim, substantially shorten a trial and save expense) - If one of those tests was answered affirmatively then, before making a final determination as to whether to sever, the court had to determine if a severance would meet the objectives of rule 1.2 - In carrying out that analysis, the court would have to balance the ultimate goals as expressed in the "Foundational Rules" and determine if the remedy of severance was proportional - The court noted that if the answers to the rule 7.1(1)(a) factors were negative, the court need not proceed to the rule 1.2 analysis - See paragraphs 49 to 74.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - Envision presented a petition to the City of Edmonton demanding that an airport remain open - The petition was rejected for limitations reasons and formality issues - Envision applied for judicial review, raising the limitations issue (the first question) and the petition issue (second question) - The city sought severance of the issues (Rules of Court, 2010, rule 7.1(1)(a)) - The Alberta Court of Queen's Bench noted that rule 7.1(1)(a) introduced a new three part disjunctive test for severance (i.e., whether severance would dispose of all or part of a claim, would substantially shorten proceedings and save expenses) - Here, the threshold was met for severance under the new rule because severing question one would satisfy one or more of the tests - However, that did not end the analysis because under the new Rules, the court's conclusion under rule 7.1(1)(a) had to be considered in light of the Foundational Rules (rule 2.1) - The court had to consider whether it was just and fair to sever taking into account and weighing and balancing the rule 7.1(1)(a) factors with the factors of cost-effectiveness and timeliness and do a proportionality analysis - The balancing in this case favoured severing the first question and having it heard first - See paragraphs 74 to 147.

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles (incl. when available or appropriate) - [See all Practice - Topic 5204 ].

Statutes - Topic 1782

Interpretation - Intrinsic aids - General - Statement of purpose and objects - [See first Practice - Topic 5204 ].

Cases Noticed:

Marche et al. v. Halifax Insurance Co., [2005] 1 S.C.R. 47; 330 N.R. 115; 230 N.S.R.(2d) 333; 729 A.P.R. 333; 2005 SCC 6, refd to. [para. 18].

New Brunswick (Minister of Municipal Affairs) v. Bathurst Paper Ltd., [1972] S.C.R. 471; 4 N.B.R.(2d) 96, refd to. [para. 20].

Akita Drilling Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) (2003), 351 A.R. 230; 2003 ABQB 1030, refd to. [para. 20].

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1991), 114 A.R. 27; 79 Alta. L.R.(2d) 1 (C.A.), refd to. [para. 25].

Tanguay et al. v. Vincent, [1999] A.R. Uned. 510; 75 Alta. L.R.(3d) 90; 1999 ABQB 814, refd to. [para. 25].

Ratcliffe v. Nakonechny (2003), 23 Alta. L.R.(4th) 21; 2003 ABQB 667, refd to. [para. 25].

Leblanc v. Leblanc, [1988] 1 S.C.R. 217; 81 N.R. 299; 84 N.B.R.(2d) 33; 214 A.P.R. 33, refd to. [para. 37].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 40].

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81, refd to. [para. 42].

Emtwo Properties Inc. et al. v. Cineplex (Western Canada) Inc. et al., [2009] B.C.T.C. Uned. 1592; 2009 BCSC 1592, refd to. [para. 43].

Murphy Oil Co. et al. v. Predator Corp. et al. (2002), 319 A.R. 328; 2002 ABQB 629, refd to. [para. 46].

Kwinter v. Metrowest Developments Ltd. et al. (2007), 443 A.R. 86; 85 Alta. L.R.(4th) 219; 2007 ABQB 713, refd to. [para. 50].

Robinson et al. v. Terra Nova Shoes Ltd. et al., [2005] A.R. Uned. 247; 2005 ABQB 187, refd to. [para. 50].

Turner v. Doe, 2005 ABQB 932, refd to. [para. 51].

Fattah v. Motor Vehicle Accident Claims Act, Administrator (Alta.) - see Fattah et al. v. Doe et al.

Fattah et al. v. Doe et al., [2005] A.R. Uned. 669; 2005 ABQB 604, refd to. [para. 51].

Weatherford Canada Partnership v. Addie et al. (2009), 484 A.R. 247; 14 Alta. L.R.(5th) 98; 2009 ABQB 538, refd to. [para. 51].

Inland Concrete Ltd. v. Commonwealth Insurance Co., [2008] A.R. Uned. 385; 71 C.L.R.(3d) 263; 2008 ABQB 297, refd to. [para. 51].

Dreco Energy Services Ltd. et al. v. Wenzel et al. (2004), 365 A.R. 135; 2004 ABQB 842, refd to. [para. 51].

Coenen v. Payne, [1974] 2 All E.R. 1109 (C.A.), refd to. [para. 56].

Kirby et al. v. Raman (2009), 285 Nfld. & P.E.I.R. 263; 879 A.P.R. 263; 2009 NLTD 22, refd to. [para. 57].

Elcano Acceptance Ltd. et al. v. Richmond, Stambler & Mills (1986), 16 O.A.C. 69; 55 O.R.(2d) 56 (C.A.), refd to. [para. 58].

101055204 Saskatchewan Ltd. et al. v. Wolff et al. (2008), 328 Sask.R. 42; 2008 SKQB 301, refd to. [para. 58].

Canadian National Railway Co. v. Huntingdon Real Estate Investment Trust (2009), 244 Man.R.(2d) 69; 2009 MBQB 233, refd to. [para. 58].

Rajkhowa v. Watson et al. (2000), 216 N.S.R.(2d) 1; 680 A.P.R. 1; 2000 NSCA 50, refd to. [para. 59].

Ocean v. Economical Mutual Insurance Co. et al. (2010), 293 N.S.R.(2d) 387; 928 A.P.R. 387; 2010 NSSC 314, refd to. [para. 59].

Hynes v. Westfair Foods Ltd. et al., [2008] B.C.T.C. Uned. C09; 2008 BCSC 637, refd to. [para. 60].

Fraser et al. v. Westminer Canada Ltd. et al. (1998), 168 N.S.R.(2d) 84; 505 A.P.R. 84 (S.C.), refd to. [para. 64].

Cayou v. Cayou et al., [2010] B.C.T.C. Uned. 1224; 2010 BCSC 1224, refd to. [para. 65].

Nguyen v. Bains et al., [2001] B.C.T.C. 1130; 2001 BCSC 1130, refd to. [para. 65].

Dmytriw v. Odim et al. (2008), 226 Man.R.(2d) 284; 2008 MBQB 12, refd to. [para. 66].

Statutes Noticed:

Rules of Court (Alta.), rule 1.2 [para. 35]; rule 7.1(1)(a) [para. 22]. Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 387 [paras. 37, 38]; 388 [para. 38]; 583 [para. 19].

Counsel:

K. Fallis-Howell, for the applicant, The City of Edmonton;

J. Agrios, for the respondents, Envision Edmonton Opportunities Society and Charles Allard.

This application was heard on January 14, 2011, before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of judgment on January 19, 2011.