Okotoks (Town) v. Foothills No. 31 (Municipal District) et al., 2013 ABCA 222

• Judge: Berger, Slatter and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 09, 2013
• Citations: 2013 ABCA 222;(2013), 553 A.R. 309

Okotoks v. Foothills No. 31  (2013), 553 A.R. 309; 583 W.A.C. 309 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JN.070

Town of Okotoks (appellant/applicant) v. Municipal District of Foothills No. 31 and Alberta Foothills Properties Ltd. (respondents/respondents)

(1201-0133-AC; 2013 ABCA 222)

Indexed As: Okotoks (Town) v. Foothills No. 31 (Municipal District) et al.

Alberta Court of Appeal

Berger, Slatter and Rowbotham, JJ.A.

June 17, 2013.

Summary:

The Town of Okotoks applied for a declaration that a bylaw of the Municipal District of Foothills No. 31 was invalid and void pursuant to s. 536 of the Municipal Government Act.

The Alberta Court of Queen's Bench, in a decision reported at 532 A.R. 237, dismissed the application. The Town appealed.

The Alberta Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 8023

Actions against municipalities - Applicability of limitation period - Challenging bylaws - The Town of Okotoks applied for a declaration that a bylaw of the Municipal District of Foothills No. 31 was invalid and void pursuant to s. 536 of the Municipal Government Act (MGA) - The respondents asserted that Okotoks was out of time in bringing the application based on the six month limitation period in rule 3.15(2) of the Alberta Rules of Court - Okotoks argued that rule 3.15 was inapplicable - The application judge dismissed the application - The Town appealed, asserting that rule 3.15(2) did not apply to a statutory remedy as opposed to judicial review - The Alberta Court of Appeal dismissed the appeal - This argument had two prongs - First, the Town submitted that the enactment of a bylaw was not a "decision or act" of a body; hence rule 3.15(2) did not apply - In the court's view, the rule should not be read so narrowly - A municipal council could only act by resolution or bylaw (MGA, s. 180) - Accordingly, a bylaw was a decision or act of the municipality subject to the remedies in rules 3.15(1)(a) and (b) - Second, although the Town acknowledged that an application for judicial review was subject to the six-month limitation prescribed by rule 3.15(2), it said that the rule did not apply to a statutory remedy - It asserted that an application to declare a bylaw void was not an administrative law remedy which was subject to judicial review - Rather, it was a statutory remedy for which there was no limitation period - The court did not read rule 3.15(2) in conjunction with s. 536 of the MGA so narrowly - Judicial review rules, including rule 3.15(2) applied to challenges of bylaws as well as to the traditional judicial review remedies - See paragraphs 9 to 15.

Limitation of Actions - Topic 8023

Actions against municipalities - Applicability of limitation period - Challenging bylaws - The Town of Okotoks applied for a declaration that a bylaw of the Municipal District of Foothills No. 31 was invalid and void pursuant to s. 536 of the Municipal Government Act (MGA) - The respondents asserted that Okotoks was out of time in bringing the application based on the six month limitation period in rule 3.15(2) of the Alberta Rules of Court - Okotoks argued that rule 3.15 was inapplicable - The application judge dismissed the application - The Town appealed, asserting that the rule was inconsistent with the MGA and that the MGA "trumps" the rule - The Alberta Court of Appeal dismissed the appeal - This argument required the court to interpret s. 536 of the MGA and rule 3.15(2) in conjunction with s. 28.1(1) of the Judicature Act and ss. 537 and 538 of the MGA - Had the Legislature intended that there be no limitation period, it could have inserted the words "at any time" in s. 536, as it did in s. 538 - Further, s. 28.1(3) of the Judicature Act prohibited rules which conflicted with an act or regulation - There was no conflict between s. 536 and rule 3.15(2) - The rule did exactly what was intended by s. 28.1(3) - It supplemented s. 536 of the MGA with respect to the practice and procedure necessary to apply for a declaration regarding the validity of a planning bylaw - See paragraphs 16 to 22.

Municipal Law - Topic 3890

Bylaws - Quashing bylaws - Judicial review - Practice - Limitation period - [See both Limitation of Actions - Topic 8023 ].

Cases Noticed:

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. [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. 12].

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, revd. (2007), 404 A.R. 349; 394 W.A.C. 349; 2006 ABCA 392; 2007 ABCA 180, revd. [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. 13].

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. 14].

Statutes Noticed:

Judicature Act, R.S.A. 2000, c. J-2, sect. 28.1(1) [para. 17].

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 536 [para. 4]; sect. 537, sect. 538 [para. 18].

Rules of Court (Alta.), rule 3.15(1), rule 3.15(2) [para. 6].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2002), pp. 411 [para. 15]; 412 [para. 11].

Counsel:

F.A. Laux, Q.C., and G.J. Ludwig, for the appellant;

J.M. Klauer, for the respondent, Municipal District of Foothills No. 31;

K.H. Ham, for the respondent, Alberta Foothills Properties Ltd.

This appeal was heard on May 9, 2013, by Berger, Slatter and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on June 17, 2013.