Mammoet 13220 - 33 Street NE Ltd. et al. v. Edmonton (City) et al., (2014) 577 A.R. 317

• Judge: Côté, O'Brien and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 26, 2014
• Citations: (2014), 577 A.R. 317;2014 ABCA 229

Mammoet 13220-33 Street v. Edmonton (2014), 577 A.R. 317; 613 W.A.C. 317 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JL.051

Mammoet 13220 - 33 Street NE Limited, Hustle Holding Ltd. and Kiewit Energy Canada Corp. (respondents/applicants) v. The City of Edmonton and Focus Equities Alberta Inc. (appellants/respondents) and The Minister of Justice and Solicitor General of Alberta (intervenor)

(1403-0011-AC; 1403-0014-AC; 2014 ABCA 229)

Indexed As: Mammoet 13220 - 33 Street NE Ltd. et al. v. Edmonton (City) et al.

Alberta Court of Appeal

Côté, O'Brien and Veldhuis, JJ.A.

July 10, 2014.

Summary:

The applicant developers challenged the validity of Edmonton Bylaw 14380, dealing with off-site levies. They applied for a declaration under s. 536 of the Municipal Government Act (MGA) that the bylaw was invalid. At issue was whether the bylaw complied with its empowering legislation, namely, ss. 648 and 649 of the MGA, and in particular with the Principles and Criteria for Off-Site Levies Regulation. The City of Edmonton (the City) and Focus Equities Alberta Inc. (Focus) applied for summary judgment. They asserted that any claims the bylaw was invalid were irrelevant because the applicants missed the limitation period found in rule 3.15(2) of the Rules of Court. The crux of the application was the meaning and effect of Okotoks (Town) v. Foothills No. 31 (Municipal District) et al. (2013) (Alta. C.A.).

The Alberta Court of Queen's Bench, in a decision reported at (2013), 574 A.R. 249, dismissed the summary judgment application. The City and Focus appealed, advancing three grounds: (1) the chambers judge erred by not following Okotoks 2013; (2) the chambers judge erred in finding the issue of notice was relevant; and (3) the chambers judge erred in finding the constitutional issue was relevant.

The Alberta Court of Appeal dismissed the appeal. The Court disposed of the appeal on the first ground. "[T]he chambers judge was correct to follow United Taxi. However, we would uphold his decision on the basis that Okotoks 2013 can be distinguished from United Taxi and the line of Supreme Court of Canada authorities which it follows."

Courts - Topic 17

Stare decisis - Authority of judicial decisions - Scope of stare decisis - The Alberta Court of Appeal, dealing with questions of precedent and stare decisis, examined certain underlying principles - "First, the authoritative value of a case depends upon what it rules. It is only those points of law that are essential to a decision, the ratio decidendi, that are binding. Non-essential statements are obiter dicta and although they may have persuasive value in certain circumstances they do not govern. ... Second, Alberta has developed a process for reconsidering Court of Appeal decision in later appeals. This Court commented both on the policy, and requisite procedures for its implementation, in R. v Arcand, 2010 ABCA 363 ... Thus, when it is alleged that a decision of this court has effectively overruled a previous decision it is necessary to consider whether the case now cited as precedent followed the reconsideration process. If it did not, its precedential value may be fatally flawed ... Underlying this process is the principle that unless the reconsideration process is appropriately invoked, the Court is bound to follow its own previous precedents as well as applicable Supreme Court authority." - See paragraphs 17 and 18.

Courts - Topic 17

Stare decisis - Authority of judicial decisions - Scope of stare decisis - The originating application alleged that the off-site levies sought to be charged by the City of Edmonton were not assessed in accordance with the applicable Regulation - The City's application for summary judgment dealt with the attack upon the validity of the bylaw itself - The central issue was whether the six-month time limit in rule 3.15(2) of the Alberta Rules of Court applied - The chambers judge found "an irreconcilable conflict" between Okotoks (Town) v. Foothills No. 31 (Municipal District) et al. (2013) (Alta. C.A.) and United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (2002) (Alta. C.A.) - The chambers judge followed United Taxi on the basis that there was no "authoritative statement in Okotoks 2013 stating that United Taxi is no longer the law in this province" - In the end, the chambers judge dismissed the summary judgment application - The Alberta Court of Appeal held that "[t]he chambers judge was correct to follow United Taxi. However, we would uphold his decision on the basis that Okotoks 2013 can be distinguished from United Taxi and the line of Supreme Court of Canada authorities which it follows." - See paragraphs 16 and 29.

Limitation of Actions - Topic 8023

Actions against municipalities - Applicability of limitation period - Challenging bylaws - [See second Courts - Topic 17 ].

Municipal Law - Topic 2165

Municipal taxes or levies - Development levies - Off-site levies - [See second Courts - Topic 17 ].

Municipal Law - Topic 3890

Bylaws - Quashing bylaws - Judicial review - Practice - Limitation period - [See second Courts - Topic 17 ].

Cases Noticed:

Kiewit Energy Canada Corp. v. Subdivision and Development Appeal Board (Edmonton) et al. (2013), 566 A.R. 90; 597 W.A.C. 90; 87 Alta. L.R.(5th) 287; 2013 ABCA 407, leave to appeal denied [2014] S.C.C.A. No. 27, refd to. [para. 5].

Okotoks (Town) v. Foothills No. 31 (Municipal District) et al. (2013), 553 A.R. 309; 583 W.A.C. 309; 2013 ABCA 222, leave to appeal denied [2013] S.C.C.A. No. 355, dist. [para. 8].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (2002), 303 A.R. 249; 273 W.A.C. 249; 3 Alta. L.R.(4th) 211; 2002 ABCA 131, revd. in part [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, consd. [paras. 11, 20 et seq.].

Wiswell v. Winnipeg (City), [1965] S.C.R. 512, refd to. [para. 12].

Osborne v. Rowlett (1880), 13 Ch. D. 774, refd to. [para. 17].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 40 Alta. L.R.(5th) 199; 2010 ABCA 363, refd to. [para. 78].

R. v. Arcand - see R. v. J.L.M.A.

Immeubles Port Louis ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; 121 N.R. 323; 38 Q.A.C. 253, refd to. [para. 22].

Tonks v. York (Township) and Reid et al., [1967] S.C.R. 81; 59 D.L.R.(2d) 310, refd to. [para. 23].

Urban Development Institute v. Rockyview No. 44 (Municipal District) (2002), 321 A.R. 253; 8 Alta. L.R.(4th) 273; 2002 ABQB 651, refd to. [para. 24].

Okotoks (Town) v. Foothills No. 31 (Municipal District) et al. (2012), 532 A.R. 237; 2012 ABQB 53, refd to. [para. 25].

Papaschase Indian Band No. 136 v. Canada (Attorney General) - see Lameman et al. v. Canada (Attorney General).

Lameman et al. v. Canada (Attorney General) (2004), 365 A.R. 1; 2004 ABQB 655, refd to. [para. 26].

Athabasca Chipewyan First Nation v. Alberta (Minister of Energy) et al. (2011), 505 A.R. 72; 522 W.A.C. 72; 2011 ABCA 29, refd to. [para. 26].

Mammoet 13220-33 Street NE Ltd. et al. v. Edmonton (City) et al., [2014] A.R. Uned. 78; 2014 ABCA 155, refd to. [para. 28].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 648 [para. 2].

Municipal Government Act Regulations (Alta.), Principles and Criteria for Off-Site Levies Regulation, Reg. 48/2004, generally [para. 7].

Principles and Criteria for Off-Site Levies Regulation, Alta. Reg. 48/2004 - see Municipal Government Act Regulations (Alta.).

Rules of Court (Alta.), rule 3.15(2) [para. 8].

Authors and Works Noticed:

Dias, Reginald Walter Michael, Jurisprudence (4th Ed. 1976), p. 162 [para. 17].

Counsel:

F.R. Haldane, Q.C., and A.M. Simmonds, for the respondent, Mammoet 13220 - 33 Street NE Limited;

K.F. Bailey, Q.C., for the respondent, Kiewit Energy Canada Corp.;

J.A. Agrios, Q.C., for the appellant, Focus Equities Alberta Inc.;

B.R. Alloway and M.S. Gunther, for the appellant, City of Edmonton.

This appeal was heard on May 26, 2014, before Côté, O'Brien and Veldhuis, JJ.A., of the Alberta Court of Appeal. The Court delivered the following memorandum of judgment, filed at Edmoton, Alberta, on July 10, 2014.