Maitson v. Edmonton (City), (1995) 174 A.R. 25 (CA)

• Judge: Harradence, Conrad and O'Leary, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 02, 1995
• Citations: (1995), 174 A.R. 25 (CA)

Maitson v. Edmonton (1995), 174 A.R. 25 (CA);

    102 W.A.C. 25

MLB headnote and full text

Brent Maitson (appellant) v. The City of Edmonton (respondent)

(Appeal No. 9403-0450-AC)

Brent Maitson (appellant) v. The City of Edmonton (respondent)

(Appeal No. 9403-0656-AC)

Indexed As: Maitson v. Edmonton (City)

Alberta Court of Appeal

Harradence, Conrad and O'Leary, JJ.A.

August 8, 1995.

Summary:

A city passed a bylaw limiting traffic on a street to bicycle and pedestrian traffic. The city rejected a petition presented by a resi­dent asking for a referendum to keep the road open. The resident applied for judicial review to quash the bylaw and to quash the city's rejection of the petition. The trial judge dismissed the applications. The resi­dent appealed. The municipality cross-appealed.

The Alberta Court of Appeal allowed the appeal, but dismissed the cross-appeal.

Municipal Law - Topic 1431

Powers of municipalities - Respecting land - Closure of streets - A city passed a bylaw limiting traffic on a street to bicycle and pedestrian traffic - A resident applied to quash the bylaw because the city failed to give notice or hold public hearings as required by s. 180 of the Municipal Gov­ernment Act - The Alberta Court of Appeal held that the road was "closed" for the purposes of s. 180 - The court quashed the bylaw, holding that the city was required to give notice and hold hearings - See paragraphs 7 to 14.

Municipal Law - Topic 1431

Powers of municipalities - Respecting land - Closure of streets - A city passed a bylaw limiting traffic on a street to bicycle and pedestrian traffic - A resident applied to quash the bylaw because the city failed to give notice or hold public hearings as required by s. 180 of the Municipal Gov­ernment Act - The city claimed, inter alia, that s. 180 did not apply because the road was not closed "permanently" because the city could repeal or alter the bylaw at any time to reopen it to motor vehicles - The Alberta Court of Appeal rejected the city's argument, stating that a bylaw was neces­sary to close a road and bylaws were always subject to amendment or repeal - See paragraph 14.

Municipal Law - Topic 3283

Bylaws - Conditions precedent to enact­ment - Hearing - [See first Municipal Law - Topic 1431 and second Municipal Law - Topic 3384 ].

Municipal Law - Topic 3326

Bylaws - Notice of intention to consider - [See first Municipal Law - Topic 1431].

Municipal Law - Topic 3384

Bylaws - Enactment - Statutory require­ments - A city passed a bylaw limiting traffic on a street to bicycle and pedestrian traffic - A resident applied to quash the bylaw because the city failed to give notice or hold public hearings as required by s. 180 of the Municipal Government Act - The city claimed, inter alia, that the bylaw was passed under the Highway Traffic Act and s. 180 did not apply - The Alberta Court of Appeal stated that the city could not use one statute to circum­vent the requirements imposed by another - The court stated that the two statutes could apply at the same time - See para­graphs 11 to 13.

Municipal Law - Topic 3384

Bylaws - Enactment - Statutory require­ments - A city passed a bylaw limiting traffic on a street to bicycle and pedestrian traffic - A resident applied to quash the bylaw because the city failed to give notice or hold public hearings as required by s. 180 of the Municipal Government Act - The city claimed, inter alia, that the subject matter of the bylaw fell under the City Transportation Act - The Alberta Court of Appeal held that the city could not claim that the bylaw was passed under another Act when it failed to comply with the public hearing requirements of that Act before passing the bylaw - The court stated that the city could not argue that the subject matter of the bylaw fell between the two Acts to avoid hear­ing the views of its citizens - See para­graph 23.

Municipal Law - Topic 3386

Bylaws - Enactment - By petition of electors - A city passed a bylaw limiting traffic on a street to bicycle and pedestrian traffic - Section 125 of the Municipal Government Act permitted petitions calling for, inter alia, the repeal of a bylaw - A resident presented a petition to keep the road open - The city rejected the petition - The Alberta Court of Appeal stated that once a petition was submitted, it was the duty of the clerk to determine whether it complied with the requirements of s. 125 and, if it did, to proceed with a referendum - The court stated that once the require­ments of s. 125 were met, council's func­tion became purely administrative - See paragraph 16.

Municipal Law - Topic 3386

Bylaws - Enactment - By petition of electors - A city passed a bylaw limiting traffic on a street to bicycle and pedestrian traffic - Section 125 of the Municipal Government Act permitted petitions calling for, inter alia, the repeal of a bylaw - A resident presented a petition to keep the road open - The city rejected the petition - The Alberta Court of Appeal stated that "[i]nquiries into the history of dealings by the city with respect to the same subject matter, or whether the city could deal with the same matter under a different statute, are irrelevant to the question of whether a petition complies with s. 125" - See para­graph 17.

Municipal Law - Topic 3386

Bylaws - Enactment - By petition of electors - Section 125 of the Municipal Government Act permitted petitions calling for, inter alia, the repeal of a bylaw - The Alberta Court of Appeal stated that where a municipal council had the authority to legislate with respect to a particular matter under the Municipal Government Act and another statute, and the other statute con­tains public notice, hearing and participa­tion requirements of its own, s. 125 could not be used to override the decisions of the municipality made after due observance of those hearing requirements - See para­graph 19 - The court outlined the process to determine whether the subject matter of a proposed bylaw met the requirements of s. 125 - See paragraph 21.

Municipal Law - Topic 3386

Bylaws - Enactment - By petition of electors - A city passed a bylaw limiting traffic on a street to bicycle and pedestrian traffic - Section 125 of the Municipal Government Act permitted petitions calling for, inter alia, the repeal of a bylaw - A resident presented a petition to keep the road open - The city rejected the petition, claiming, inter alia, that the wording in the petition was vague - The Alberta Court of Appeal held that all concerned could identify with certainty the subject matter of the petition - See paragraph 22.

Municipal Law - Topic 3850

Bylaws - Quashing bylaws - Grounds for judicial interference - Noncompliance - [See first Municipal Law - Topic 1431].

Statutes - Topic 4512

Operation and effect - Where two or more statutes apply - [See first Municipal Law - Topic 3384 ].

Cases Noticed:

Chrismas v. Edmonton (City) (1970), 75 W.W.R.(N.S.) 453 (Alta. C.A.), refd to. [para. 8].

Ducharme v. Winnipeg (City) (1979), 104 D.L.R.(3d) 239; 10 M.P.L.R. 98 (Man. C.A.), refd to. [para. 14].

Edmonton Telephones Corp. v. Stephenson et al. (1994), 160 A.R. 352 (Q.B.), affd. (1994), 162 A.R. 139; 83 W.A.C. 139 (C.A.), dist. [para. 18].

Ewasiuk and Edmonton Voters Association v. Edmonton (City) (1979), 23 A.R. 225 (C.A.), refd to. [para. 22].

Brown et al. v. Calgary (City) et al. (1980), 22 A.R. 148; 12 Alta. L.R.(2d) 276 (C.A), refd to. [para. 22].

Statutes Noticed:

Edmonton (City) Bylaws, Bylaw No. 10552 [para. 1].

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 16(1)(p), sect. 16(1)(t), sect. 16(1)(y) [para. 11].

Municipal Government Act, R.S.A. 1980, c. M-26, sect. 6(5) [para. 2]; sect. 125(1), sect. 125(2), sect. 125(3), sect. 125(4) [para. 15]; sect. 125(9) [para. 5]; sect. 180 [para. 7].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 177 [para. 12].

Counsel:

Janice A. Agrios, for the appellant;

D.G. Lopushinsky, for the respondent.

This appeal was heard on February 2, 1995, by Harradence, Conrad and O'Leary, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered orally by the court on August 8, 1995.