Society for Promotion of Alternative Arts and Music v. Edmonton (City) et al., (2008) 459 A.R. 191 (QB)

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 09, 2008
• Citations: (2008), 459 A.R. 191 (QB);2008 ABQB 629

Soc. Arts & Music v. Edmonton (2008), 459 A.R. 191 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. OC.080

Society for Promotion of Alternative Arts and Music (applicant) v. The City of Edmonton as represented by the City Manager and the Quasi-Judicial Standing Committee (respondents)

(0803 03840)

Society for Promotion of Alternative Arts and Music (applicant) v. The City of Edmonton as represented by the Quasi-Judicial Standing Committee (respondent)

(0803 08964; 2008 ABQB 629)

Indexed As: Society for Promotion of Alternative Arts and Music v. Edmonton (City) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Shelley, J.

October 9, 2008.

Summary:

The applicant sought judicial review of two decisions. The first was a decision by the Director of the Permitting and Licensing Section of the Development Compliance Branch of the City of Edmonton Planning and Development Department. The second was a decision by the City of Edmonton Quasi-Judicial Standing Committee. Both applications related primarily to two conditions respecting the operation of an after hours dance club which were imposed by the Director and subsequently upheld, with amendment, on appeal by the Committee.

The Alberta Court of Queen's Bench declined to judicially review the decision of the Director, other than for the limited purposes specified in the judgment. The court allowed the application respecting the Committee's decision. The court quashed the Committee's decision and returned the applicant's appeal from the Director's decision to the Committee for a new hearing and decision.

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions (incl. sufficiency of reasons) - [See Administrative Law - Topic 2491 ].

Administrative Law - Topic 2491

Natural justice - Procedure - At hearing - Cross-examination - The Director of the Permitting and Licensing Section of the Development Compliance Branch of the City of Edmonton Planning and Development Department imposed conditions on the operation of an after hours dance club - The applicant appealed - The City of Edmonton Quasi-Judicial Standing Committee upheld the conditions, with amendment, on appeal - The Alberta Court of Queen's Bench allowed the applicant's judicial review application respecting the Committee's decision - The court quashed the Committee's decision and returned the applicant's appeal from the Director's decision to the Committee for a new hearing and decision - The Committee failed to provide the applicant with fair disclosure - A process of pre-hearing disclosure would have disclosed not only the documentary evidence but also the substance of the testimony expected from witnesses would have enabled the applicant to better prepare for the appeal hearing - The Committee denied the applicant the ability to adequately present its case by refusing to provide an adequate amount of time to make submissions and by denying the applicant the right to cross-examine witnesses - Given the nature of the material contained in the written disclosure package, as well as the generalized assertions made by witnesses at the hearing, the applicant's inability to cross-examine significantly hampered its ability to defend against the allegations and resulted in unfairness - The Committee also failed to provide adequate reasons for its decision - See paragraphs 35 to 47.

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - [See Administrative Law - Topic 2491 ].

Administrative Law - Topic 3303

Judicial review - General - Bars - Appeal or review available - The Director of the Permitting and Licensing Section of the Development Compliance Branch of the City of Edmonton Planning and Development Department imposed conditions on the operation of an after hours dance club - The applicant appealed - The City of Edmonton Quasi-Judicial Standing Committee upheld the conditions, with amendment, on appeal - The applicant sought judicial review of both decisions - The Alberta Court of Queen's Bench declined to judicially review the Director's decision - As the appeal procedure in this case (appeal de novo) afforded an effective alternative remedy - An appeal conducted by way of de novo hearing in which the appellate body, in this case the Committee, could receive whatever information or material the parties wished to place before it, theoretically afforded an adequate alternative remedy to a party who was dissatisfied with the decision made by the subordinate body - Whatever the deficiencies in the process followed below (and in this case there were significant defects in the process implemented by the Director), they were capable of being remedied by the de novo appeal process - See paragraphs 18 to 34.

Municipal Law - Topic 1686

Powers of municipalities - Judicial review of exercise of powers - Conditions precedent - Exhaustion of remedies - [See Administrative Law - Topic 3303 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1 (S.C.C.), refd to. [para. 12].

377050 B.C. Ltd. v. Burnaby (City) (2007), 238 B.C.A.C. 114; 393 W.A.C. 114 (C.A.), refd to. [para. 14].

Costello and Dickhoff v. Calgary (City), [1983] 1 S.C.R. 14; 46 N.R. 54; 41 A.R. 318, refd to. [para. 23].

Janzen et al. v. Mountain View No. 17 (County), [1997] 9 W.W.R. 540; 205 A.R. 114 (Q.B.), refd to. [para. 24].

Thierman v. Itaska Beach (Summer Village) (2002), 316 A.R. 102; 2002 ABQB 343, refd to. [para. 24].

Robertson v. Edmonton (City) (1990), 104 A.R. 374 (Q.B.), refd to. [para. 24].

Society Promoting Environmental Conservation v. Canada (Attorney General) (2003), 305 N.R. 203; 2003 FCA 239, refd to. [para. 24].

Board of Education of Dysart School District et al. v. Board of Education of Cupar School Division No. 28 (1996), 148 Sask.R. 41; 134 W.A.C. 41 (C.A.), refd to. [para. 24].

Bridgeland Riverside Community Association v. Calgary (City) and Patricia Investments Ltd. (1982), 37 A.R. 26 (C.A.), refd to. [para. 25].

Associated Cab Limousine Ltd. v. Calgary (City) (2003), 339 A.R. 159; 312 W.A.C. 159 (C.A.), refd to. [para. 26].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 26].

Stewart v. Subdivision and Development Appeal Board of (Lac Ste. Anne (County)) et al. (2006), 397 A.R. 185; 384 W.A.C. 185; 2006 ABCA 264, red to. [para. 27].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 27].

Clayre v. Association of Professional Engineers, Geologists and Geophysicists of Alberta (Appeal Board and the Investigative Committee) (2005), 363 A.R. 114; 343 W.A.C. 114 (C.A.), refd to. [para. 27].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 27].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 28].

Milner Power Inc. v. Energy and Utilities Board (Alta.) (2007), 417 A.R. 115; 410 W.A.C. 115; 2007 ABCA 265, refd to. [para. 29].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 2006 ABCA 282, refd to. [para. 29].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 32].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347; 2008 ABCA 220, refd to. [para. 32].

Syncrude Canada Ltd. v. Michetti et al. (1994), 162 A.R. 16; 83 W.A.C. 16 (C.A.), refd to. [para. 42].

Murray et al. v. Rockyview No. 44 (Municipal District) and Flintstone Fun Park Ltd. (1980), 21 A.R. 512; 12 Alta. L.R.(2d) 342 (C.A.), refd to. [para. 42].

Paterson v. Skate Canada (2004), 373 A.R. 81; 47 Alta. L.R.(4th) 112 (Q.B.), refd to. [para. 42].

Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7; 433 W.A.C. 7; 2008 ABCA 273, refd to. [para. 44].

R. v. Hafey et al., [1985] 1 S.C.R. 106; 57 N.R. 321; 67 N.S.R.(2d) 181; 155 A.P.R. 181, refd to. [para. 48].

R. v. Skoke-Graham - see R. v. Hafey et al.

Northwest Territories (Attorney General) et al. v. Fédération Franco-ténoise et al. (2008), 440 A.R. 56; 438 W.A.C. 56; 2008 NWTCA 6, refd to. [para. 48].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998), generally [para. 42].

de Smith, Stanley Alexander, Woolf, Harry, and Jowell, Jeffrey L., Judicial Review of Administrative Action (5th Ed. 1995), pp. 489, 490, para. 10-022 [para. 27].

Hogg, Peter W., Constitutional Law of Canada (1997 Looseleaf Ed.), generally [para. 48].

Sharpe, Robert J., Charter Litigation (1987), generally [para. 48].

Sharpe, Robert J., Mootness, Abstract Questions and Alternative Grounds: Deciding Whether to Decide, in Sharpe, Robert J., Charter Litigation (1987), generally [para. 48].

Counsel:

Terry J. Williams (Fraser Milner Casgrain LLP), for the applicant;

Cameron J. Ashmore (City of Edmonton), for the respondents.

These applications were heard on September 3 and 5, 2008, by Shelley, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 9, 2008.