Holowatiuk v. Beaver (County), 2008 ABQB 290

• Judge: Foster, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 05, 2007
• Citations: 2008 ABQB 290;(2008), 447 A.R. 199 (QB)

Holowatiuk v. Beaver (2008), 447 A.R. 199 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.103

William Holowatiuk (applicant) v. Beaver County (respondent)

(0703 00471; 2008 ABQB 290)

Indexed As: Holowatiuk v. Beaver (County)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Foster, J.

May 14, 2008.

Summary:

Beaver County billed the applicant for fire fighting costs pertaining to a fire on a parcel of land owned by the applicant and his wife. There was no evidence that they had caused the fire. They refused to pay the bill and subsequently sold the land where the fire occurred. The County added the bill and late penalties to the property taxes for a different parcel of land owned by the applicant. The applicant sought a declaration that Bylaw 04-870 of the County of Beaver was invalid pursuant to s. 536 of the Municipal Government Act, because the Bylaw unreasonably imposed fire fighting fees on the applicant's tax roll when the applicant did not cause the emergency.

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

Municipal Law - Topic 1483

Powers of municipalities - Particular powers - Imposition and collection of taxes or fees - Beaver County billed the applicant for fire fighting costs pertaining to a fire on a parcel of land owned by the applicant and his wife - There was no evidence that they had caused the fire - They refused to pay the bill and subsequently sold the land where the fire occurred - The County added the bill and late penalties to the property taxes for a different parcel of land owned by the applicant - The applicant sought a declaration that Bylaw 04-870 of the County of Beaver was invalid pursuant to s. 536 of the Municipal Government Act, because the Bylaw unreasonably imposed fire fighting fees on the applicant's tax roll when the applicant did not cause the emergency - The Alberta Court of Queen's Bench dismissed the application - The Bylaw was not beyond the County's powers under the Municipal Government Act - The court stated, inter alia, that "Given that Alberta municipalities prior to 1994 were able to pass a bylaw charging a land owner or occupant within the municipality for costs and expenses related to extinguishing a fire on their land, I find that this power has not been narrowed by the enactment of the Municipal Government Act, S.A. 1994, c. M-26.1. This interpretation is bolstered by s. 553(1)(g) of Municipal Government Act, R.S.A. 2000, c. M-26" - See paragraphs 34 to 46.

Municipal Law - Topic 1483

Powers of municipalities - Particular powers - Imposition and collection of taxes or fees - Beaver County billed the applicant for fire fighting costs pertaining to a fire on a parcel of land owned by the applicant and his wife - There was no evidence that they had caused the fire - They refused to pay the bill and subsequently sold the land where the fire occurred - The County added the bill and late penalties to the property taxes for a different parcel of land owned by the applicant - The applicant sought a declaration that Bylaw 04-870 of the County of Beaver was invalid pursuant to s. 536 of the Municipal Government Act, because the Bylaw unreasonably imposed fire fighting fees on the applicant's tax roll when the applicant did not cause the emergency - The applicant argued that the Fire Prevention (Metropolis) Act 1774 was in force in Alberta - Pursuant to that Act there had to be some evidence of negligence on the part of the landowner - He could not be held responsible for fire fighting charges where the fire was incapable of being traced to any cause - The Alberta Court of Queen's Bench found that the Fire Prevention (Metropolis) Act 1774 had been impliedly repealed or repealed by operation of law, to the extent that it was inconsistent with the power granted to municipalities pursuant to the Municipal Government Act to enact bylaws allowing them to recover the cost of fighting fires on lands from the owners of those lands without the requirement to prove fault or causation - See paragraphs 47 to 64.

Municipal Law - Topic 1483

Powers of municipalities - Particular powers - Imposition and collection of taxes or fees - Beaver County billed the applicant for fire fighting costs pertaining to a fire on a parcel of land owned by the applicant and his wife - There was no evidence that they had caused the fire - They refused to pay the bill and subsequently sold the land where the fire occurred - The County added the bill and late penalties to the property taxes for a different parcel of land owned by the applicant - The applicant sought a declaration that Bylaw 04-870 of the County of Beaver was invalid pursuant to s. 536 of the Municipal Government Act, because the Bylaw unreasonably imposed fire fighting fees on the applicant's tax roll when the applicant did not cause the emergency - The applicant argued that it was clear that from ss. 7(1) and 9(3) of the Forest and Prairie Protection Act that the municipality's right to recover fire fighting fees was subject to establishing persons who were responsible for the fire - Further, s. 2.1 set out the persons who could be considered responsible for a fire - The Alberta Court of Queen's Bench held that ss. 9(3) and 2.1(1) of the Forest and Prairie Protection Act did not take away from any rights conferred by any other legislation such as the Municipal Government Act and the right conferred therein to pass a bylaw charging the costs and expenses of extinguishing a fire to the owner of the property for which those costs were incurred - See paragraphs 65 to 73.

Statutes - Topic 6902

Operation and effect - Commencement, duration and repeal - Repeal - What constitutes a repeal - [See second Municipal Law - Topic 1483 ].

Statutes - Topic 6910

Operation and effect - Commencement, duration and repeal - Repeal - By implication - [See second Municipal Law - Topic 1483 ].

Cases Noticed:

Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 25].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4, refd to. [para. 25].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 25].

Passutto Hotels (1984) Ltd. et al. v. Red Deer (City) (2006), 407 A.R. 83; 2006 ABQB 641, refd to. [para. 27].

Warkentin v. Craig, [1998] A.R. Uned. 105; 1998 ABQB 306, refd to. [para. 51].

Prior v. Hanna, Kennedy and McLeod (1987), 82 A.R. 183 (Q.B.), refd to. [para. 51].

Jordon v. Power (2002), 325 A.R. 60; 2002 ABQB 794, refd to. [para. 51].

Alberta v. Hay (2002), 313 A.R. 329; 2002 ABQB 282, dist. [para. 52].

Schultz v. Rycks (1964), 48 W.W.R.(N.S.) 150 (Alta. Dist. Ct.), refd to. [para. 52].

Schultz v. Wolske (1966), 75 W.W.R.(N.S.) 441 (Alta. T.D.), refd to. [para. 56].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 59].

Lewis v. Pincher Creek No. 9 (Municipal District) (2005), 375 A.R. 331; 2005 ABQB 201, consd. [para. 74].

Statutes Noticed:

Beaver (County) Bylaws, Fire Services Bylaw, Bylaw No. 04-870, sect. 12.1, sect. 12.2, sect. 12.3 [para. 23].

Fire Prevention (Metropolis) Act, 1774 (U.K.), 14 Geo. 3, c. 78, sect. 86 [para. 50].

Forest and Prairie Protection Act, R.S.A. 2000, c. F-19, sect. 2, sect. 2.1(1), sect. 7(1), sect. 9 [para. 66].

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 7, sect. 9, sect. 536(1), sect. 539, sect. 541(a), sect. 551, sect. 552, sect. 553, sect. 533.1 [para. 24].

Authors and Works Noticed:

Maxwell, Peter Benson, Interpretation of Statutes (12th Ed. 1969), p. 193 [para. 55].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 275 [para. 57]; 277, 278 [para. 58].

Counsel:

Bruce A. James (Chomicki Baril Mah LLP), for the applicant;

Thomas D. Marriott (Brownlee LLP), for the respondent.

This application was heard on December 5, 2007, before Foster, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on May 14, 2008.