Reece et al. v. Edmonton (City),

• Judge: Rooke
• Neutral Citation: 2010 ABQB 538
• Citation: 2010 ABQB 538,(2010), 498 A.R. 43 (QB),498 AR 43,(2010), 498 AR 43 (QB),498 A.R. 43
• Date: 04 May 2010
• Court: Court of Queen's Bench of Alberta (Canada)

Reece v. Edmonton (2010), 498 A.R. 43 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AU.067

Tove Reece, Zoocheck Canada Incorporated and People for the Ethical Treatment of Animals, Inc. (respondents/applicants) v. The City of Edmonton (applicant/respondent)

(1003 01655; 2010 ABQB 538)

Indexed As: Reece et al. v. Edmonton (City)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Rooke, A.C.J.Q.B.

August 20, 2010.

Summary:

The applicants filed an Originating Notice seeking a declaration that the City of Edmonton was in violation of s. 2 of the Animal Protection Act (the Act) in relation to Lucy, an Asian elephant resident at the Edmonton Valley Zoo. The applicants alleged that the City kept Lucy in an environment and in a state of health that breached provincial law. The City, relying on rules 6, 129(1)(a) and (d), and 410 of the Alberta Rules of Court sought to strike the Originating Notice on the grounds that: a. None of the applicants had standing to seek the declaration; b. The application was an abuse of the process of the court, because it sought to circumvent the comprehensive regulatory regimes set out in the Act, the Animal Protection Regulation, the Wildlife Act and Wildlife Regulation, including the Government of Alberta Standards for Zoos in Alberta, "thereby usurping the role of the Attorney General and depriving the City of numerous procedural protections to which it would otherwise be entitled"; and c. Proceedings by way of an originating notice were not permitted by rules 6 or 410, and were not appropriate.

The Alberta Court of Queen's Bench found that the declaration sought by the applicants was an abuse of the process of the court. The Originating Notice was struck pursuant to rule 129(1)(d). Alternatively, the Originating Notice did not comply with the requirements of the Rules of Court, and absent a request for relief under rule 560, should also be struck out for that reason.

Animals - Topic 7044

Offences - Particular offences - Causing or permitting an animal to be in distress - [See Courts - Topic 2015 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - Reece, Zoocheck Canada Incorporated and People for the Ethical Treatment of Animals Inc., filed an Originating Notice seeking a declaration that the City of Edmonton was in violation of s. 2 of the Animal Protection Act (the Act) in relation to Lucy, an Asian elephant resident at the Edmonton Valley Zoo - Section 2 of the Act contained a prohibition against causing an animal to be in distress - The applicants alleged that the City kept Lucy in an environment and in a state of health that breached provincial law - The City argued that the application was an abuse of the process of the court, because it sought to circumvent the comprehensive regulatory regimes set out in the Act, the Animal Protection Regulation, the Wildlife Act and Wildlife Regulation, including the Government of Alberta Standards for Zoos in Alberta (collectively, the Legislation), "thereby usurping the role of the Attorney General and depriving the City of numerous procedural protections to which it would otherwise be entitled" - The Alberta Court of Queen's Bench struck the Originating Notice pursuant to rule 129(1)(d) - The Originating Notice was an abuse of process because no private individual could bring an action to enforce the criminal law and the proper way to proceed was through the Legislation - See paragraphs 6 and 11 to 46.

Practice - Topic 78

Actions - Commencement of - Choice of method of commencement of proceedings - Originating notice - The applicants filed an Originating Notice seeking a declaration that the City of Edmonton was in violation of s. 2 of the Animal Protection Act in relation to Lucy, an Asian elephant resident at the Edmonton Valley Zoo - The Alberta Court of Queen's Bench struck the Originating Notice on the basis that it was an abuse of process - In the alternative, the court would have held that the action was not properly commenced by an originating notice, but rather that it should have been commenced by way of statement of claim - However, such an alternative decision was not necessarily fatal to the applicants who might apply to seek relief from a finding of such an irregularity under rule 560 - See paragraphs 7 and 47 to 55.

Practice - Topic 206

Persons who can sue and be sued - Individuals and corporations - Status or standing - Interference with public rights - [See Practice - Topic 221 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - Reece, Zoocheck Canada Incorporated and People for the Ethical Treatment of Animals Inc., filed an Originating Notice seeking a declaration that the City of Edmonton was in violation of s. 2 of the Animal Protection Act in relation to Lucy, an Asian elephant resident at the Edmonton Valley Zoo - The applicants alleged that the City kept Lucy in an environment and in a state of health that breached provincial law - The Alberta Court of Queen's Bench struck the Originating Notice on the basis that it was an abuse of process - Although the court did not need to address the issue of standing, the court made some provisional findings and observations - The applicants did not have any private interest standing because their private rights were not interfered with, nor did they suffer any damage peculiar to themselves - Since this case related to the alleged infringement of a public right, the application attempted to "usurp the role of the Attorney General and to sue to enforce public laws" - While the applicants relied on the rate payer cases as exceptions to the general rule in Boyce and Finlay, those decisions were not helpful here - While one or more of the applicants might qualify for a "public interest" standing on a discretionary basis in the broad sense to challenge "the limits of administrative authority", such standing was generally granted in the context of challenging legislation - Even if the court were to grant public interest standing, the issue of whether there was another reasonable and effective way to bring the issue before the court arose - Additionally, the declaration sought by the applicants did not challenge the limits of administrative authority, but instead sought to enforce a comprehensive regulatory regime without the consent of the Alberta Attorney General, an area to which public interest standing did not extend - See paragraphs 8 to 9.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Courts - Topic 2015 ].

Practice - Topic 2392

Writ of summons, endorsements, originating summons and originating notices - Nullities and irregularities - Irregularity - General - [See Practice - Topic 78 ].

Practice - Topic 2482

Writ of summons, endorsements, originating summons and originating notices - Originating notices (incl. judicial review) - When available - [See Practice - Topic 78 ].

Cases Noticed:

MacMillan Bloedel Ltd. v. Greenpeace Canada et al., [1994] 10 W.W.R. 705; 50 B.C.A.C. 100; 82 W.A.C. 100; 93 C.C.C.(3d) 289; 96 B.C.L.R.(2d) 201, affd. [1996] 2 S.C.R. 1048; 199 N.R. 279; 79 B.C.A.C. 135; 129 W.A.C. 135; 130 D.L.R.(4th) 385, refd to. [para. 8].

MacMillan Bloedel Ltd. v. Simpson et al. - see MacMillan Bloedel Ltd. v. Greenpeace Canada et al.

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 9].

Boyce v. Paddington Borough Council, [1903] 1 Ch. 109, refd to. [para. 9].

Kitimat (District) v. Alcan Inc. (2006), 223 B.C.A.C. 27; 369 W.A.C. 27; 265 D.L.R.(4th) 462; 2006 BCCA 75, refd to. [para. 9].

Paterson v. Bowes, [1853] O.J. No. 255, refd to. [para. 9].

MacIlreith v. Hart Estate, [1908] 39 S.C.R. 657, refd to. [para. 9].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 9].

Borowski v. Canada (Minister of Justice) and Canada (Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 9].

Carruthers and Whelton v. Langley (1985), 69 B.C.L.R. 24; 23 D.L.R.(4th) 623 (C.A.), refd to. [para. 9].

Society for the Preservation of the Englishman River Estuary v. Nanaimo (Regional District) et al. (1999), 4 B.C.T.C. 356; 28 C.E.L.R.(N.S.) 253; 86 A.C.W.S.(3d) 261 (S.C.), refd to. [para. 9].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 10].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Allen et al. v. Alberta et al. (2001), 286 A.R. 132; 253 W.A.C. 132; 2001 ABCA 171, revd. [2003] 1 S.C.R. 128; 301 N.R. 174; 327 A.R. 1; 296 W.A.C. 1, refd to. [para. 10].

Robinson v. Adams (1924), 56 O.L.R. 217 (C.A.), refd to. [para. 30].

Gouriet v. Union of Post Office Workers, [1977] 3 All E.R. 70; [1977] 3 W.L.R. 300; [1978] A.C. 435 (H.L.), refd to. [para. 30].

Manitoba Naturalists Society Inc. v. Ducks Unlimited (Canada), [1992] 2 W.W.R. 377; 79 Man.R.(2d) 15; 86 D.L.R.(4th) 709 (Q.B.), refd to. [para. 36].

Metalliferous Mines Regulations Act, Re; Rabbit v. Craigmont Mines Ltd. (1963), 42 W.W.R.(N.S.) 157 (B.C.S.C.), refd to. [para. 37].

R. v. Shore Disposal Ltd.; DeWolfe (Ed) Trucking Ltd. et al. v. Shore Disposal Ltd. (1976), 16 N.S.R.(2d) 538; 16 A.P.R. 538 (C.A.), refd to. [para. 38].

Mid West Television Ltd. v. S.E.D. Systems Inc. et al., [1981] 3 W.W.R. 560; 9 Sask.R. 199 (Q.B.), refd to. [para. 40].

Association of Manitoba Land Surveyors et al. v. Manitoba Telephone System et al. (1993), 84 Man.R.(2d) 213; 100 D.L.R.(4th) 420 (Q.B.), refd to. [para. 41].

Parkland (County) v. Barakat Industries Ltd. et al. (2004), 370 A.R. 1; 2004 ABQB 822, refd to. [para. 43].

Canada (Canadian Radio-Television and Telecommunications Commission) v. Teleprompter Cable Communications Corp., [1972] F.C. 1265 (F.C.A.), refd to. [para. 43].

Acadian Cable TV Ltd. v. Canadian Radio-Television and Telecommunications Commission, [1972] F.C. 1280 (T.D.), refd to. [para. 43].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 44].

Thomlinson et al. v. Alberta et al. (2003), 335 A.R. 85; 2003 ABQB 308, refd to. [para. 49].

Edmonton Telephones Corp. v. Stephenson et al. (1994), 160 A.R. 352; 24 Alta. L.R.(3d) 96 (Q.B.), affd. (1994), 162 A.R. 139; 83 W.A.C. 139; 26 Alta. L.R.(3d) 33 (C.A.), refd to. [para. 49].

Alliance Pipeline Ltd. v. Seibert (2003), 342 A.R. 343; 2003 ABQB 872, refd to. [para. 51].

Alberta Union of Provincial Employees v. Alberta et al. (2001), 303 A.R. 1; 273 W.A.C. 1; 2001 ABCA 309, refd to. [para. 52].

University of Alberta v. Nowrouzian et al. (2005), 381 A.R. 156; 2005 ABQB 454, refd to. [para. 52].

834658 Alberta Ltd. v. 763319 Alberta Ltd. (2008), 440 A.R. 290; 438 W.A.C. 290; 2008 ABCA 199, refd to. [para. 53].

G.A.E. v. Director of Child, Youth and Family Enhancement (Alta.), [2008] A.R. Uned. 82; 167 A.C.W.S.(3d) 916; 2008 ABCA 199, refd to. [para. 53].

McConnell v. Aviva Insurance Co. of Canada Ltd. (2006), 393 A.R. 180; 2006 ABQB 80, refd to. [para. 53].

Board of Education of Calgary Roman Catholic Separate School District No. 1 v. O'Malley (2007), 426 A.R. 275; 2007 ABQB 574, refd to. [para. 53].

Bumpers Inn Ltd. v. Husky Oil Operations Ltd. et al., [2007] Uned. 662; 162 A.C.W.S.(3d) 896; 2007 ABQB 724, refd to. [para. 55].

Statutes Noticed:

Animal Protection Act, R.S.A. 2000, c. A-41, sect. 2 [para. 2].

Rules of Court (Alta.), rule 6(1) [para. 48]; rule 129 [para. 50]; rule 410(e) [para. 49]; rule 560 [para. 50].

Counsel:

Steven Phipps and S. McAnsh (The City of Edmonton), for the applicant/respondent;

Clayton Ruby and Y. Cheng (Ruby & Shiller), for the respondents/applicants.

This application was heard on May 4, 2010, before Rooke, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on August 20, 2010.