Gateway Charters Ltd. v. Edmonton (City), 2012 ABCA 93

• Judge: McFadyen, Berger and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 08, 2011
• Citations: 2012 ABCA 93;(2012), 522 A.R. 56

Gateway Charters Ltd. v. Edmonton (2012), 522 A.R. 56; 544 W.A.C. 56 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.126

Gateway Charters Ltd. carrying on business under the firm name and style Sky Shuttle (respondent/applicant) v. The City of Edmonton (appellant/respondent)

(1003-0304-AC; 2012 ABCA 93)

Indexed As: Gateway Charters Ltd. v. Edmonton (City)

Alberta Court of Appeal

McFadyen, Berger and Slatter, JJ.A.

March 19, 2012.

Summary:

The City of Edmonton issued an enforcement order under the Municipal Government Act which required Gateway Charters Ltd. (Sky Shuttle) to "cease accepting orders for and dispatching unlicensed vehicles for hire to pick up passengers within the City of Edmonton". Gateway operated a bus service from an airport outside the city limits and delivered passengers between the airport and a number of locations in Edmonton. The City maintained that Gateway operated a "shuttle" as defined by the City's Vehicle For Hire Bylaw and was therefore required to obtain licences, which it had not done. The Community Standards and Licence Appeal Committee upheld the enforcement order, holding that the Sky Shuttle service was not an "inter-municipal bus service", and so was not exempt from the Bylaw (s. 4(2)(b)). The Appeal Committee also concluded that Sky Shuttle obtained the major portion of its income within the City of Edmonton, and therefore was not exempt from City fees as a provincially regulated carrier under s. 153 of the Traffic Safety Act. Gateway applied for judicial review, arguing it was not required to comply with the bylaw, because (1) it was operating an inter-municipal bus service and was exempted under s. 4(2)(b) of the Bylaw from the licence requirement; and (2) it was a provincially-regulated carrier under s. 153(1) of the Traffic Safety Act (TSA) and the City was prohibited from charging a fee in respect of its operation.

The Alberta Court of Queen's Bench, in a decision reported 497 A.R. 325, allowed the application on the second argument. The court therefore set aside the Committee's decision upholding the order and the order itself. The City appealed.

The Alberta Court of Appeal, Berger, J.A., dissenting, allowed the appeal in part. The declaration granted by the chambers judge that Sky Shuttle was exempt from the Vehicle for Hire Bylaw because of s. 153 of the Traffic Safety Act was set aside. That part of the order which set aside the decision of the Appeal Committee survived, because its decision that Sky Shuttle was not an inter-municipal bus service was patently unreasonable. The matter was referred to the Appeal Committee for disposition in a manner consistent with the reasons given by the court.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - [See second Municipal Law - Topic 1686 ].

Municipal Law - Topic 1497

Powers of municipalities - Particular powers - Licensing and regulating taxis, limousines, shuttles, etc. - The City of Edmonton ordered an airport shuttle service to cease operating without a licence - The shuttle service operated a bus service from an airport outside the city limits and delivered passengers between the airport and a number of locations in Edmonton - The Community Standards and Licence Appeal Committee upheld the city's order, holding, inter alia, that the shuttle service was not an inter-municipal bus service, and so was not exempt from the licencing requirement in the City's Vehicle For Hire Bylaw (s. 4(2)(b)) - The Committee interpreted the bylaw as requiring an inter-municipal bus service to have multiple pick-ups and destinations in more than one municipality - The Alberta Court of Appeal held that the Committee's interpretation could not be rationally supported - Its decision that the shuttle service was not an inter-municipal bus service was patently unreasonable (a standard of review set by s. 548(1) of the Municipal Government) - No amount of curial deference could allow the decision of the Appeal Committee to stand - See paragraphs 26 to 34 and 43.

Municipal Law - Topic 1497

Powers of municipalities - Particular powers - Licensing and regulating taxis, limousines, shuttles, etc. - The City of Edmonton ordered an airport shuttle service to cease operating without a licence (Vehicle for Hire Bylaw) - The shuttle service operated a bus service from an airport outside the city limits and delivered passengers between the airport and a number of locations in Edmonton - The Community Standards and Licence Appeal Committee upheld the city's order, holding, inter alia, that the shuttle service obtained the major portion of its income within the City of Edmonton, and therefore was not exempt from City fees as a provincially regulated carrier (Traffic Safety Act, s. 153) - The shuttle service applied for judicial review - The chambers judge allowed the application, declaring that the shuttle service was exempt from the Vehicle for Hire Bylaw because of s. 153 of the Traffic Safety Act (i.e., because the major portion of the shuttle's revenue did not arise in Edmonton) - The city appealed - The Alberta Court of Appeal set aside the chambers judge's declaration - The Appeal Committee lacked jurisdiction to interpret or apply the Traffic Safety Act - There was no decision to review - See paragraphs 35 to 42.

Municipal Law - Topic 1661

Powers of municipalities - Statutory appeals from exercise of powers - General (incl. standard of review) - The Community Standards and Licence Appeal Committee upheld a City of Edmonton order that an airport shuttle service stop operating without a licence - The shuttle service applied for judicial review successfully - The City appealed - The Alberta Court of Appeal held that the shuttle service should have appealed in accordance with the Municipal Government Act instead of applying for judicial review, and, therefore, decided to treat the matter as if it was a statutory appeal - The court noted that the standard of review to be applied to an appeal from the decision of the Appeal Committee was the statutorily imposed standard of patent unreasonableness (Municipal Government Act, s. 548(1)) - See paragraphs 19 to 25.

Municipal Law - Topic 1682

Powers of municipalities - Judicial review of exercise of powers - Scope of powers of judicial review - Privative clauses - [See first Municipal Law - Topic 1686 ].

Municipal Law - Topic 1686

Powers of municipalities - Judicial review of exercise of powers - Conditions precedent - Exhaustion of remedies - The City of Edmonton ordered an airport shuttle service to cease operating without a licence - The Community Standards and Licence Appeal Committee upheld the order - The shuttle service applied for judicial review and was successful - The city appealed, arguing that rather than using the judicial review procedure, the shuttle service should have appealed the Committee's decision in accordance with s. 548(1) of the Municipal Government - The city argued that judicial review was foreclosed by the privative clause in s. 17 of the Committee's Bylaw - The Alberta Court of Appeal noted that in Alberta the substantive right to judicial review was found in the Rules of Court as authorized by the Judicature Act - According to the Municipal Government Act, the City could not enact bylaws that conflicted with enactments - It followed that the City was unable to limit the jurisdiction of the Court of Queen's Bench to grant judicial review - Exceptionally clear wording in the statute would be required to authorize that - See paragraphs 9 to 12.

Municipal Law - Topic 1686

Powers of municipalities - Judicial review of exercise of powers - Conditions precedent - Exhaustion of remedies - The Community Standards and Licence Appeal Committee upheld a City of Edmonton order that an airport shuttle service stop operating without a licence - The shuttle service applied for judicial review and was successful - The city appealed, arguing that the judicial review procedure adopted by the shuttle service was not available because there was an adequate appeal remedy under the Municipal Government Act - The Alberta Court of Appeal held that the shuttle service should have proceeded by the appeal process - However, given that there was no prejudice to the administrative structure or the city/appellant, the court regarded the form of the application as merely being irregular - Rule 3.2(6) provided that an action that should have been started in one form could be continued in another, and to the extent the decision was within the jurisdiction of the Appeal Committee, the court ruled that the application should be treated as having been commenced under rule 3.2(2)(f) (statutory appeals), rather than under rule 3.15(1) (applications for judicial review) - See paragraphs 13 to 18.

Municipal Law - Topic 3681

Bylaws - Power to enact - General - [See first Municipal Law - Topic 1686 ].

Municipal Law - Topic 3770

Bylaws - Particular bylaws (incl. scope of) - Licensing bylaw - [See first Municipal Law - Topic 1686 and both Municipal Law - Topic 1497 ].

Practice - Topic 9012.2

Appeals - Restrictions on argument on appeal - Challenging trial judge's conclusion on issue not appealed - [See Practice - Topic 9160 ].

Practice - Topic 9160

Appeals - Cross appeals, notices of contention and notices to vary - General - A respondent on an appeal challenged a ruling by the chambers judge - The appellant objected, on the ground that the respondent had not filed a cross-appeal - The Alberta Court of Appeal noted that in its notice of appeal, the appellant specified that it was appealing "the whole" of the order, thereby putting all of its aspects into play in this Court - Once that was done, the respondent was entitled to support the order through any available argument raised below, not just those relied on by the chambers judge or the appellant - See paragraphs 27 and 28.

Cases Noticed:

TeleZone Inc. v. Canada (Attorney General), [2010] 3 S.C.R. 585; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 11].

Canadian Human Rights Commission v. Canadian Liberty Net et al., [1998] 1 S.C.R. 626; 224 N.R. 241, refd to. [para. 13].

R. (ex rel. Cart) v. Upper Tribunal, [2011] N.R. Uned. 127; [2011] 3 W.L.R. 107; [2011] UKSC 28, refd to. [para. 13].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [paras. 13, 61].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [paras. 13, 60].

Merchant v. Law Society of Alberta (2008), 440 A.R. 377; 438 W.A.C. 377; 97 Alta. L.R.(4th) 216; 2008 ABCA 363, refd to. [para. 13].

Rozander and Groeneveld v. Energy Resources Conservation Board and Calgary Power Ltd. (1978), 13 A.R. 461; 8 Alta. L.R.(2d) 203 (C.A.), refd to. [para. 13].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 14, 57].

KCP Innovative Services Inc. et al. v. Alberta Securities Commission (2009), 448 A.R. 268; 447 W.A.C. 268; 2009 ABCA 102, refd to. [para. 14].

Chad Investments Ltd. v. Longson, Tammets and Denton Real Estate, [1971] 5 W.W.R. 89; 20 D.L.R.(3d) 627 (Alta. C.A.), refd to. [para. 14].

North American Montessori Academy Ltd. v. Development Appeal Board of Edmonton (City) (1977), 7 A.R. 39 (C.A.), refd to. [para. 14].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [paras. 16, 70].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 16].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [paras. 20, 56].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 22].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 24].

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, refd to. [para. 25].

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361; 2004 ABCA 185, refd to. [para. 25].

Health Sciences Association (Alta.) et al. v. David Thompson Health Region - see Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al.

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199, refd to. [para. 25].

Canadian Union of Public Employees Local 784 v. Board of Education of Edmonton School District No. 7 (2005), 363 A.R. 123; 343 W.A.C. 123; 2005 ABCA 74, refd to. [para. 25].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 28].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 28].

Kehler et al. v. Surrey (District) and Vollrath (1992), 16 B.C.A.C. 231; 28 W.A.C. 231; 70 B.C.L.R.(2d) 381 (C.A.), refd to. [para. 28].

MTS Allstream Inc. v. Toronto (City) (2006), 348 N.R. 143; 2006 FCA 89, refd to. [para. 28].

Garford Pty. Ltd. v. Dywidag Systems International Canada Ltd. et al. (2010), 406 N.R. 383; 2010 FCA 194, refd to. [para. 28].

1254582 Alberta Ltd. et al. v. Edmonton (City), [2009] 6 W.W.R. 51; 448 A.R. 58; 447 W.A.C. 58; 1 Alta. L.R.(5th) 1; 2009 ABCA 4, refd to. [paras. 40, 59].

Kadar v. Edmonton Municipal Council et al., [2010] A.R. Uned. 304; 2010 ABCA 260, refd to. [para. 58].

Calgary (City) v. Scobie et al., [2011] 5 W.W.R. 412; 505 A.R. 115; 522 W.A.C. 115; 2011 ABCA 65, refd to. [para. 60].

Calgary (City) v. Human Rights and Citizenship Commission (Alta.) - see Calgary (City) v. Scobie et al.

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (2004), 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 67].

Statutes Noticed:

Community Standards and License Appeal Committee Bylaw - see Edmonton (City) Bylaws.

Edmonton (City) Bylaws, Community Standards and License Appeal Committee Bylaw, Bylaw No. 1566, sect. 17 [para. 11].

Edmonton (City) Bylaws, Vehicle for Hire Bylaw, Bylaw No. 14700, sect. 4 [para. 8].

Municipal Government Act, R.S.A. 2000, c. T-6, sect. 548(1) [para. 9].

Traffic Safety Act, R.S.A. 2000, c. T-6, sect. 153(1), sect. 153(2) [para. 35].

Vehicle for Hire Bylaw - see Edmonton (City) Bylaws.

Counsel:

D.J. Hannaford and D.C. Lister, for the respondent;

C.J. Ashmore, for the appellant.

This appeal was heard on September 8, 2011, by McFadyen, Berger and Slatter, JJ.A., of the Alberta Court of Appeal. The Court of Appeal filed the following reasons for judgment at Edmonton, Alberta, on March 19, 2012, which included the following opinions:

Slatter, J.A. (McFadyen, J.A., concurring) - see paragraphs 1 to 43;

Berger, J.A., dissenting - see paragraphs 44 to 79.