MacKenas Estates Development Corp. v. Calgary (City) et al.,

JudgeMacleod,O'Ferrall,Slatter
Neutral Citation2012 ABCA 376
Subject MatterMUNICIPAL LAW
Citation(2012), 539 A.R. 279,2012 ABCA 376,539 AR 279,(2012), 539 AR 279,539 A.R. 279
Date15 June 2012
CourtCourt of Appeal (Alberta)

MacKenas Estates Dev. Corp. v. Calgary (2012), 539 A.R. 279; 561 W.A.C. 279 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. DE.032

MacKenas Estates Development Corporation (appellant/applicant) v. The City of Calgary and Rocky View County (respondents/respondents)

(1101-0265-AC; 2012 ABCA 376)

Indexed As: MacKenas Estates Development Corp. v. Calgary (City) et al.

Alberta Court of Appeal

Slatter and O'Ferrall, JJ.A., and Macleod, J.(ad hoc)

December 6, 2012.

Summary:

The applicant developer brought an originating application seeking a declaration that Rocky View County and the City of Calgary had an obligation under s. 34(1) of the Municipal Government Act to provide municipal wastewater services to the applicant's residential development. Alternatively, it sought mandamus compelling Calgary to consent to Rocky View's request for an expansion of the service area to include the applicant's lands.

The Alberta Court of Queen's Bench, in a decision reported at [2011] A.R. Uned. 704, dismissed the application. The applicant appealed.

The Alberta Court of Appeal dismissed the appeal.

Municipal Law - Topic 1486

Powers of municipalities - Particular powers - Respecting water supply, drains and sewers - The applicant developer sought a declaration that Rocky View County and the City of Calgary had an obligation under s. 34(1) of the Municipal Government Act to provide municipal wastewater services to the applicant's residential development - There was a regional sewer system developed under the Sanitary Sewer Servicing Agreement between Calgary and Rocky View - Section 34(1) provided that "If the system or works of a municipal public utility that provide a municipal utility service are adjacent to a parcel of land, the municipality must, when it was able to do so and subject to any terms, costs or charges established by council, provide the municipal utility service to the parcel on the request of the owner of the parcel." - Calgary would not consent to amend the Agreement to enlarge the service area to incorporate the developer's lands - The chambers judge dismissed the application - The Alberta Court of Appeal dismissed the developer's appeal - The chambers judge did not err in his interpretation of the phrase "able to" in s. 34(1) - That phrase was to be interpreted broadly - Given Calgary's lack of consent to amend the service area, Rocky View was not "able to" provide sewage service to the developer's lands - It was not tenable that any remedy under s. 34(1) was available against Calgary when the land in question was beyond its municipal boundaries - The chambers judge's conclusion that Calgary's consent was not unreasonably withheld was not palpably and overridingly wrong - See paragraphs 30 to 36.

Municipal Law - Topic 2982

Duties of municipalities - Particular duties - Provision of municipal services - General - [See Municipal Law - Topic 1486 ].

Words and Phrases

Able to - The Alberta Court of Appeal discussed the meaning of this phrase as used in s. 34(1) of the Municipal Government Act, R.S.A. 2000, c. M-26 - See paragraphs 30 to 34.

Cases Noticed:

Landrex Developers Inc. et al. v. St. Albert (City) (2004), 372 A.R. 171; 2004 ABQB 732, refd to. [para. 24].

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. 27].

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345, refd to. [para. 28].

Double N Earthmovers Ltd. v. Edmonton (City) et al. (2005), 363 A.R. 201; 343 W.A.C. 201; 2005 ABCA 104, affd. [2007] 1 S.C.R. 116; 356 N.R. 211; 401 A.R. 329; 391 W.A.C. 329; 2007 SCC 3, refd to. [para. 29].

Alberta Importers and Distributors (1993) Inc. et al. v. Phoenix Marble Ltd. et al. (2008), 432 A.R. 173; 424 W.A.C. 173; 2008 ABCA 177, refd to. [para. 29].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107; 2004 SCC 13, refd to. [para. 31].

Greenview No. 16 (Municipal District) v. Birnie-Browne et al., [2010] A.R. Uned. 760; 77 M.P.L.R.(4th) 244; 2010 ABQB 669, refd to. [para. 32].

Prairie Communities Development Corp. v. Okotoks (Town) (2011), 515 A.R. 93; 532 W.A.C. 93; 2011 ABCA 315, dist. [para. 32].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc. (1993), 162 N.R. 177; 18 Admin. L.R.(2d) 122 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 62].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 34(1) [para. 1].

Authors and Works Noticed:

Phillips, Charles F., Jr., The Regulation of Public Utilities (2nd Ed. 1988), generally [para. 64].

Counsel:

K.H. Ham, for the appellant;

D. Dalton and D.E. Mercer, for the respondent, the City of Calgary;

J.M. Klauer, for the respondent, Rocky View County.

This appeal was heard on June 15, 2012, before Slatter and O'Ferrall, JJ.A., and Macleod, J.(ad hoc), of the Alberta Court of Appeal. On December 6, 2012, the following decisions of the court were delivered:

Macleod, J.A.(ad hoc) (Slatter, J.A., concurring) - see paragraphs 1 to 37;

O'Ferrall, J.A., dissenting - see paragraphs 38 to 90.

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2 practice notes
  • Lehmann (Peter) Wines Ltd. v. Vintage West Wine Marketing Inc. et al., 2015 ABQB 481
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • July 21, 2015
    ...the there be a public legal duty to act and that such duty is owed to the applicant: MacKenas Estates Development Corp v Calgary (City) , 2012 ABCA 376 at para 62, 539 AR 279, citing Apotex Inc v Merck & Co (1993), 162 NR 177 (FCA), aff'd [1994] 3 SCR 1100. In determining whether there ......
  • Condo Corporation No. 0410106 v Medicine Hat (City), 2019 ABCA 294
    • Canada
    • Alberta Court of Appeal (Alberta)
    • August 1, 2019
    ...with the scheme and object of the act and the intention of the legislature: MacKenas Estates Development Corp v Calgary (City), 2012 ABCA 376 at para 31. Further, the public policy goals of the MGA, which include providing good government, providing services, and developing and maintaining ......
2 cases
  • Lehmann (Peter) Wines Ltd. v. Vintage West Wine Marketing Inc. et al., 2015 ABQB 481
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • July 21, 2015
    ...the there be a public legal duty to act and that such duty is owed to the applicant: MacKenas Estates Development Corp v Calgary (City) , 2012 ABCA 376 at para 62, 539 AR 279, citing Apotex Inc v Merck & Co (1993), 162 NR 177 (FCA), aff'd [1994] 3 SCR 1100. In determining whether there ......
  • Condo Corporation No. 0410106 v Medicine Hat (City), 2019 ABCA 294
    • Canada
    • Court of Appeal (Alberta)
    • August 1, 2019
    ...with the scheme and object of the act and the intention of the legislature: MacKenas Estates Development Corp v Calgary (City), 2012 ABCA 376 at para 31. Further, the public policy goals of the MGA, which include providing good government, providing services, and developing and maintaining ......

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