Kitikmeot Corp. v. Cambridge Bay (Hamlet), 2007 NUCA 2

• Judge: Conrad, Kilpatrick and O'Brien, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: June 14, 2007
• Jurisdiction: Nunavut
• Citations: 2007 NUCA 2;(2007), 409 A.R. 307 (CA)

Kitikmeot Corp. v. Cambridge Bay (2007), 409 A.R. 307 (CA);

      402 W.A.C. 307

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JN.079

Kitikmeot Corporation (appellant) v. The Municipal Corporation of the Hamlet of Cambridge Bay (respondent)

(21-06-0011-CAP; 2007 NUCA 2)

Indexed As: Kitikmeot Corp. v. Cambridge Bay (Hamlet)

Nunavut Court of Appeal

Conrad, Kilpatrick and O'Brien, JJ.A.

June 14, 2007.

Summary:

The Municipal Corporation of the Hamlet of Cambridge Bay passed a water rate bylaw which defined "multi plex units" and classified them as commercial users and thereby subjected them to commercial rates. An owner of multi plex units applied for judicial review, asserting that the bylaw was ultra vires and discriminatory.

The Nunavut Court of Justice, in a decision reported at [2006] Nunavut Cases 16, upheld the bylaw but found that it was discriminatory in its operation vis-à-vis the owner's two single dwelling residences. The owner appealed the determination that the bylaw was not ultra vires. Cambridge Bay cross-appealed the finding of discrimination.

The Nunavut Court of Appeal allowed the appeal, dismissed the cross-appeal and declared that the bylaw was ultra vires to the extent that it imposed, and was used to collect, commercial rates for water used by the tenants of multi plex units. Further, Cambridge Bay had no authority to impose commercial rates for water supplied to the owner's two single-dwelling residences. The court directed Cambridge Bay to calculate and refund the overcharges to the owner for the benefit of its tenants. The owner was entitled to recover interest on the overcharges from the date of the commencement of these proceedings until payment thereof at the rate of prejudgment interest prescribed by the Judicature Act.

Municipal Law - Topic 3803

Bylaws - Quashing bylaws - General - Excess of powers - A hamlet passed a water rate bylaw which defined "multi plex units" and classified them as commercial users and thereby subjected them to commercial rates - The Nunavut Court of Appeal held that the bylaw was ultra vires in that it attempted to impose commercial rates on occupants of multi plex units through the stratagem of defining apartment units as consumer users - Section 53.94(2) of the Hamlets Act required that the rates be set with reference to the user of the utility service, in this case the residential tenants - There was no authority to establish rates by reference to units, however owned - Further, the bylaw was ultra vires on the basis that the Act did not authorize the hamlet to treat residential users occupying multi plex units differently from those occupying singe family residential dwellings - The hamlet relied on s. 54.3 which provided that classes could be created and dealt with differently - However, even assuming that s. 54.3 applied to utility services, there had to be different classes - The bylaw effected discrimination amongst the same class of users, namely residential users - See paragraphs 19 to 40.

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - [See Municipal Law - Topic 3803 ].

Municipal Law - Topic 3846

Bylaws - Quashing bylaws - Grounds for judicial interference - Discrimination - [See Municipal Law - Topic 3803 ].

Municipal Law - Topic 3860

Bylaws - Quashing bylaws - Grounds for judicial interference - Unauthorized by empowering statute - [See Municipal Law - Topic 3803 ].

Cases Noticed:

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; 2004 SCC 19, refd to. [para. 13].

710357 Ontario Ltd. et al. v. Penetanguishene (Town) (1998), 112 O.A.C. 110; 164 D.L.R.(4th) 755 (C.A.), agreed with. [para. 21].

Arcade Amusements Inc. v. Montreal (City), [1985] 1 S.C.R. 368; 58 N.R. 339, refd to. [para. 31].

R. v. Sharma (D.), [1993] 1 S.C.R. 650; 149 N.R. 161; 61 O.A.C. 161, refd to. [para. 32].

Board of School Trustees of School District No. 61 (Greater Victoria) v. Oak Bay (District) (2006), 221 B.C.A.C. 254; 364 W.A.C. 254; 2006 BCCA 28, refd to. [para. 36].

Statutes Noticed:

Nunavut Act, S.C. 1993, c. 28, sect. 53.94(2) [para. 13]; sect. 54.3 [para. 15].

Authors and Works Noticed:

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (2nd Ed.) (1971 Looseleaf), paras. 406.3, 406.4 [para. 31].

Sullivan, Ruth, Essentials of Canadian Law - Statutory Interpretation (1st Ed. 1997), generally [para. 28].

Counsel:

S. Molgat, for Kitikmeot Corp.;

J. Rossall, Q.C., for the Municipal Corp. of the Hamlet of Cambridge Bay.

This appeal was heard on May 23 2007, by Conrad, Kilpatrick and O'Brien, JJ.A., of the Nunavut Court of Appeal. The following memorandum of decision was filed by the court at Iqualuit, Nunavut, on June 14, 2007.