St. Clements (Rural Municipality) v. Zucawich, (2013) 294 Man.R.(2d) 146 (CA)

• Judge: Steel, Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 04, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 294 Man.R.(2d) 146 (CA);2013 MBCA 65

St. Clements v. Zucawich (2013), 294 Man.R.(2d) 146 (CA);

      581 W.A.C. 146

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JL.031

The Rural Municipality of St. Clements (applicant/respondent) v. Gerald William Zucawich (respondent/appellant)

(AI 11-30-07597; 2013 MBCA 65)

Indexed As: St. Clements (Rural Municipality) v. Zucawich

Manitoba Court of Appeal

Steel, Beard and Monnin, JJ.A.

July 4, 2013.

Summary:

The owner of an unsightly property was served with a municipal clean-up order. The owner neither complied with the order nor appealed it by way of a de novo review by the municipal council (Municipal Act, s. 244(1)). After further unsuccessful attempts by the municipality to have the owner voluntarily clean-up the property, the municipality sought to effect the clean-up itself at the owner's expense. The owner interfered. The municipality obtained an order under s. 240 restraining the owner from interfering with entry onto the property to enforce the clean-up order. The owner had opposed the application, challenging the validity of the clean-up order. The applications judge held that the owner, having chosen not to avail himself of the Act's appeal mechanism, could not now collaterally attack the validity of the order. The owner appealed.

The Manitoba Court of Appeal dismissed the appeal, confirming that the clean-up order was valid. The judge correctly held that the owner's challenge to the validity of the clean-up order was an impermissible collateral attack. The court declined to hear new issues raised for the first time on appeal and rejected the municipality's argument that it should decline to hear the appeal on the ground of mootness.

Administrative Law - Topic 574

The hearing and decision - Decisions of the tribunal - Collateral attack - The owner of an unsightly property was served with a municipal clean-up order - The owner neither complied with the order nor appealed it by way of a de novo review by the municipal council (Municipal Act, s. 244(1)) - After further unsuccessful attempts by the municipality to have the owner voluntarily clean-up the property, the municipality sought to effect the clean-up itself at the owner's expense - The owner interfered - The municipality obtained an order under s. 240 restraining the owner from interfering with entry onto the property to enforce the clean-up order - The owner had opposed the application, challenging the validity of the clean-up order - The applications judge held that the owner, having chosen not to avail himself of the Act's appeal mechanism, could not now collaterally attack the validity of the order - The Manitoba Court of Appeal dismissed the owner's appeal, confirming that the clean-up order was valid - The judge correctly held that the owner's challenge to the validity of the clean-up order was an impermissible collateral attack - See paragraphs 34 to 87.

Land Regulation - Topic 5017

Unsightly premises - Removal or clean-up - [See Administrative Law - Topic 574 ].

Practice - Topic 6270

Judgments and orders - Administrative orders - Collateral attack - [See Administrative Law - Topic 574 ].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - The owner of an unsightly property was served with a municipal clean-up order - The owner neither complied with the order nor appealed it by way of a de novo review by the municipal council (Municipal Act, s. 244(1)) - After further unsuccessful attempts by the municipality to have the owner voluntarily clean-up the property, the municipality sought to effect the clean-up itself at the owner's expense - The owner interfered - The municipality obtained an order under s. 240 restraining the owner from interfering with entry onto the property to enforce the clean-up order - The owner had opposed the application, challenging the validity of the clean-up order - The applications judge held that the owner, having chosen not to avail himself of the Act's appeal mechanism, could not now collaterally attack the validity of the order - The owner appealed - When the appeal was heard, the clean-up had been completed, at the owner's expense - The municipality argued that the appeal was now moot - The Manitoba Court of Appeal held that the appeal was not moot where there remained consequences to the owner (liability for clean-up) if the clean-up order was valid - See paragraphs 102 to 105.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - The owner of an unsightly property was served with a municipal clean-up order - The owner neither complied with the order nor appealed it by way of a de novo review by the municipal council (Municipal Act, s. 244(1)) - After further unsuccessful attempts by the municipality to have the owner voluntarily clean-up the property, the municipality sought to effect the clean-up itself at the owner's expense - The owner interfered - The municipality obtained an order under s. 240 restraining the owner from interfering with entry onto the property to enforce the clean-up order - The owner appealed and sought to raise issues that were not argued before the applications judge, were not included in the notice of appeal, and there was no application to amend the notice of appeal - The Manitoba Court of Appeal declined to consider the new arguments - There was no decision on the matters to review and no exceptional circumstances to depart from the general rule of not dealing with issues on appeal that were not raised in the court below - See paragraph 92 to 98.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 13].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161, refd to. [para. 21].

R. v. Klippert (Al) Ltd., [1998] 1 S.C.R. 737; 225 N.R. 107; 216 A.R. 1; 175 W.A.C. 1, refd to. [para. 21].

Edmonton (City) v. Cormier, [2002] A.R. Uned. 92; 2002 ABQB 133, refd to. [para. 21].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 35].

TeleZone Inc. v. Canada (Attorney General), [2010] 3 S.C.R. 585; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 35].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 36].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 36].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 36].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 36].

Energy Resources Conservation Board (Alta.) v. Sarg Oils Ltd. et al. (2002), 312 A.R. 79; 281 W.A.C. 79; 2002 ABCA 174, leave to appeal denied (2003), 311 N.R. 200; 330 A.R. 199; 299 W.A.C. 199 (S.C.C.), refd to. [para. 39].

Prince Resource Corp. v. Energy and Utilities Board (Alta.) (2003), 346 A.R. 226; 320 W.A.C. 226; 2003 ABCA 243, refd to. [para. 41].

Michaud v. Manitoba (2011), 263 Man.R.(2d) 62; 2011 MBQB 34, affd. (2012), 280 Man.R.(2d) 1; 548 W.A.C. 1; 2012 MBCA 21, refd to. [para. 42].

Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 67].

Chamberlain et al. v. Board of Education of School District No. 36 (Surrey), [2002] 4 S.C.R. 710; 299 N.R. 1; 175 B.C.A.C. 161; 289 W.A.C. 161; 2002 SCC 86, refd to. [para. 67].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [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. 67].

RSJ Holdings Inc. v. London (City), [2007] 2 S.C.R. 588; 364 N.R. 362; 226 O.A.C. 375; 2007 SCC 29, refd to. [para. 67].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 70].

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 70].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 70].

Manitoba v. Russell Inns Ltd. et al. (2013), 291 Man.R.(2d) 244; 570 W.A.C. 244; 2013 MBCA 46, refd to. [para. 70].

Western Canada Wilderness Committee v. Manitoba (2013), 288 Man.R.(2d) 216; 564 W.A.C. 216; 2013 MBCA 11, refd to. [para. 72].

R. v. C.J. (1997), 115 Man.R.(2d) 72; 139 W.A.C. 72 (C.A.), refd to. [para. 95].

Harder v. Manitoba Public Insurance Corp. et al. (2012), 284 Man.R.(2d) 254; 555 W.A.C. 254; 2012 MBCA 101, refd to. [para. 96].

Andison v. Katz (2012), 288 Man.R.(2d) 53; 564 W.A.C. 53; 2012 MBCA 107, refd to. [para. 96].

Counsel:

G.W. Zucawich, on his own behalf;

M.G. Tramley, for the respondent.

This appeal was heard on March 19, 2012, before Steel, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal.

On July 4, 2013, Beard, J.A., delivered the following judgment for the Court.