Mammoet 13220-33 Street NE Ltd. et al. v. Edmonton (City) et al., 2013 ABQB 663

• Judge: Michalyshyn, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 27, 2013
• Citations: 2013 ABQB 663;(2013), 574 A.R. 249 (QB)

Mammoet 13220-33 Street v. Edmonton (2013), 574 A.R. 249 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. NO.078

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

(1203 15931; 2013 ABQB 663)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Michalyshyn, J.

November 8, 2013.

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 and Focus Equities Alberta Inc. 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 dismissed the summary judgment application.

Constitutional Law - Topic 604.1

Powers of Parliament and legislatures - Delegation of power - Delegation of legislative power - Validity of - [See third Municipal Law - Topic 3890 ].

Courts - Topic 17

Stare decisis - Authority of judicial decisions - Scope of stare decisis - [See first Municipal Law - Topic 3890 ].

Limitation of Actions - Topic 8023

Actions against municipalities - Applicability of limitation period - Challenging bylaws - [See all Municipal Law - Topic 3890 ].

Municipal Law - Topic 2165

Municipal taxes or levies - Development levies - Off-site levies - [See Municipal Law - Topic 3861 ].

Municipal Law - Topic 3861

Bylaws - Quashing bylaws - Grounds for judicial interference - Omission of requirements of empowering statute - The applicant developers challenged the validity of Edmonton bylaw 14380, dealing with off-site levies - The respondents sought summary judgment against the challenge - The applicants argued that the bylaw was invalid on its face in part because it failed to comply with its empowering legislation, namely, ss. 648 and 649 of the Municipal Government Act, and in particular with the Principles and Criteria for Off-Site Levies Regulation - Neither of the respondents denied that arguably the bylaw failed to comply with the Regulation - The Alberta Court of Queen's Bench, in the context of summary judgment, was satisfied an arguable case existed that the bylaw did so fail - The Court was strengthened in that conclusion by two cases that had declared similar off-site bylaws invalid on the basis they failed to comply with the Regulation for reasons substantially like those raised here - Those outcomes alone satisfied the "arguable case" test to defeat summary judgment - See paragraphs 5 to 7.

Municipal Law - Topic 3890

Bylaws - Quashing bylaws - Judicial review - Practice - Limitation period - The City of Edmonton sought summary judgment against the applicant developers' challenge, under s. 536 of the Municipal Government Act, to the validity of Edmonton bylaw 14380, dealing with off-site levies - Edmonton asserted that any claims the bylaw was invalid were irrelevant because the applicants missed the six months' limitation period found in rule 3.15(2) - No limitation period was specified under s. 536 - Edmonton argued that Okotoks (Town) v. Foothills No. 31 (Municipal District) et al. (2013) (Alta. C.A.) decided that a challenge, even to the validity of a bylaw under s. 536, was barred if not brought within six months of its enactment, and that Okotoks, if not distinguishable, not only had the effect of, but was intended to reverse United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (2002) (Alta. C.A.), which held that the predecessor rule to rule 3.15(2) did not apply to a jurisdictional challenge to the validity of parts of a bylaw - The Alberta Court of Queen's Bench stated that "[w]hile I agree it does appear to have that effect, without more I am not persuaded it was intended to. On the other hand, the intent of the court in United Taxi and the authorities on which it relies could not be more clearly stated. ... At the end of the day I have two authorities each of which are binding upon me. I cannot follow both." - In the end result, the Court followed United Taxi, and dismissed summary judgment on the stare decisis point - See paragraphs 23 to 83.

Municipal Law - Topic 3890

Bylaws - Quashing bylaws - Judicial review - Practice - Limitation period - The City of Edmonton sought summary judgment against the applicant developers' challenge to the validity of Edmonton bylaw 14380, dealing with off-site levies - The bylaw was enacted on October 1, 2006 - The levies were imposed in 2012 - Edmonton asserted that any claims the bylaw was invalid were irrelevant because the applicants missed the six months' limitation period found in rule 3.15(2), and that following Okotoks (Town) v. Foothills No. 31 (Municipal District) et al. (2013) (Alta. C.A.), any challenge to the bylaw's validity could be made only by April 1, 2007 - The applicants argued that, unlike the Town of Okotoks, they had no involvement or a reasonable opportunity before the limitation period expired, to challenge the bylaw - The Alberta Court of Queen's Bench concluded that the applicants had an arguable case that on the basis of Okotoks' involvement in the bylaw process, the decision in Okotoks was distinguishable - "I am still having trouble in law ignoring the fact that in all of the cases mentioned 'it just so happened' that notice [of the impugned act or decision] was in fact given or was available. And on the facts, there is evidence which should be considered on the merits application going to actual and/or constructive notice." - Summary judgment was therefore dismissed on that basis - See paragraphs 84 to 98.

Municipal Law - Topic 3890

Bylaws - Quashing bylaws - Judicial review - Practice - Limitation period - The applicant developers challenged the validity of Edmonton bylaw 14380, dealing with off-site levies - At issue was whether the bylaw complied with the Municipal Government Act, and in particular with the Principles and Criteria for Off-Site Levies Regulation - The City of Edmonton applied for summary judgment against the applicants' challenge - It asserted that any claims the bylaw was invalid were irrelevant because the applicants missed the limitation period found in rule 3.15(2) - The crux of the application was the meaning and effect of Okotoks (Town) v. Foothills No. 31 (Municipal District) (2013) (Alta. C.A.) - The applicants argued a point not raised in Okotoks; namely, that to the extent rule 3.15(2) precluded superior court review of arguably invalid bylaws, it was unconstitutional for interfering with the powers of a court appointed under s. 96 of the Constitution Act - By enacting rule 3.15(2), as interpreted in Okotoks, the legislature was impermissibly delegating to itself the powers vested solely in a s. 96 court - The Alberta Court of Queen's Bench dismissed the application for summary judgment - The court was not persuaded that the applicants should be denied the opportunity to advance their arguments in the merits hearing under this constitutional law heading - See paragraphs 99 to 118.

Practice - Topic 7

General principles and definitions - Validity of practice rules - [See third Municipal Law - Topic 3890 ].

Practice - Topic 2494

Writ of summons, endorsements, originating summons and originating notices - Originating notices (incl. judicial review) - Striking out - [See all Municipal Law - Topic 3890 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See first and third Municipal Law - Topic 3890 ].

Practice - Topic 5708.1

Judgments and orders - Summary judgments - Bar to application - Merit to claim and facts to substantiate claim - [See second Municipal Law - Topic 3890 ].

Cases Noticed:

Keyland Development Corp. v. Cochrane (Town) (2007), 416 A.R. 24; 2007 ABQB 160, refd to. [para. 7].

Prairie Communities Development Corp. v. Okotoks (Town) (2011), 515 A.R. 93; 532 W.A.C. 93; 2011 ABCA 315, refd to. [para. 7].

Okotoks (Town) v. Foothills No. 31 (Municipal District) et al. (2013), 553 A.R. 309; 583 W.A.C. 309; 2013 ABCA 222, consd. [para. 8].

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. 13].

Murphy Oil Co. et al. v. Predator Corp. et al. (2006), 384 A.R. 251; 367 W.A.C. 251; 2006 ABCA 69, refd to. [para. 20].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 20].

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

Okotoks (Town) v. Foothills No. 31 (Municipal District) et al. (2012), 532 A.R. 237; 2012 ABQB 53, consd. [para. 23].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (2002), 303 A.R. 249; 273 W.A.C. 249; 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, folld. [para. 27].

Urban Development Institute v. Rockyview No. 44 (Municipal District) (2002), 321 A.R. 253; 2002 ABQB 651, consd. [para. 27].

Wiswell v. Winnipeg (City), [1965] S.C.R. 512, consd. [para. 44].

Tonks v. York (Township) and Reid et al., [1967] S.C.R. 81, refd to. [para. 46].

Kuchma v. Tache (Rural Municipality), [1945] S.C.R. 234, refd to. [para. 46].

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. 50].

Kimpton v. Victoria (City) et al. (2008), 256 B.C.A.C. 181; 431 W.A.C. 181; 2008 BCCA 225, refd to. [para. 51].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 52].

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, refd to. [para. 54].

Reid v. Clyde, 2002 ABQB 913, refd to. [para. 54].

Barke v. Calgary (City) (1993), 139 A.R. 15 (Q.B.), refd to. [para. 60].

Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, [1955] S.C.R. 799, refd to. [para. 60].

R. v. L.S.Y. (2009), 457 A.R. 15; 457 W.A.C. 15; 2009 ABCA 89, refd to. [para. 65].

R. v. Youngpine - see R. v. L.S.Y.

R. v. Zentner (R.) (2012), 539 A.R. 1; 561 W.A.C. 1; 2012 ABCA 332, refd to. [para. 65].

Alberta Provincial Judges' Association v. Alberta (2004), 365 A.R. 102; 2004 ABQB 611, consd. [para. 65].

R. v. Woods Manufacturing Co., [1951] S.C.R. 504, refd to. [para. 68].

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

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

R. v. Bonneteau (R.A.) (1994), 157 A.R. 138; 77 W.A.C. 138; 1994 ABCA 327, refd to. [para. 81].

R. v. Ollenberger (R.) (1994), 149 A.R. 81; 63 W.A.C. 81 (C.A.), refd to. [para. 82].

Noël v. Société d'énergie de la Baie James, [2001] 2 S.C.R. 207; 271 N.R. 304; 2001 SCC 39, refd to. [para. 103].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 108].

Crevier v. Quebec (Attorney General) and Aubry; Crevier v. Quebec (Attorney General), Cofsky and Alberta (Attorney General), [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 110].

Woodward Estate v. British Columbia (Minister of Finance), [1973] S.C.R. 120, refd to. [para. 110].

Wainwright School Division 32 v. Canadian Union of Public Employees, Local 1606 (1987), 83 A.R. 325; 55 Alta. L.R.(2d) 213 (Q.B.), consd. [para. 114].

Moysa v. Labour Relations Board (Alta.), Alberta Food and Commercial Workers, Local 401 and Hudson Bay Co., [1989] 1 S.C.R. 1572; 96 N.R. 70; 97 A.R. 368, refd to. [para. 117].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 648, sect. 649 [para. 3].

Municipal Government Act Regulations (Alta.), Principles and Criteria for Off-Site Levies Regulation, Reg. 48/2004, sect. 3 [para. 4].

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. 10].

Authors and Works Noticed:

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (3rd Ed. 1999), pp. 582 to 584 [para. 46].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (5th Ed. 2009), pp. 475 to 476 [para. 102].

Rogers, Ian MacFee, The Law of Canadian Municipal Corporations (1959), vol. 2, p. 893 [para. 48].

Rogers, Ian MacFee, The Law of Canadian Municipal Corporations (2nd Ed.) (Looseleaf Update), pp. 999 to 1002 [para. 49].

Counsel:

R. Richard Haldane, Q.C., and Andrea M. Simmonds (Dentons), for the applicants, Mammoet 13220 - 33 Street NE Limited and Hustle Holdings Ltd.;

Ken Bailey, Q.C., and James K. McFadyen, Q.C. (Parlee McLaws LLP), for the applicant, Kiewit Energy Canada Corp.;

Barry Alloway and Michael Gunther (Solicitor, City of Edmonton), for the respondent, The City of Edmonton;

Janice Agrios, Q.C. (Kennedy Agrios LLP), for Focus Equities Alberta Ltd.;

Lillian Riczu (Alberta Justice and Solicitor General, Constitutional Law Branch), for the intervener.

This application for summary judgment was heard on September 27, 2013, before Michalyshyn, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, with further written submissions in October, 2013. The Court delivered the following reasons for judgment and judgment, dated November 8, 2013.