3.15: Originating application for judicial review
3.16: Originating application for judicial review: habeas corpus
3.22: Evidence on judicial review
13.5: Variation of time periods

Case Summary

Under Alberta’s Stray Animals Act, RSA 2000, c S-20 and Horse Capture Regulation, AR 59/1994, horses may be captured for reasons of public safety, the horses’ safety, or to conserve or protect lands. The Applicants alleged that wild horse capture had been occurring in Alberta without a proper decision as to whether it was necessary. The Applicants sought declarations that: (a) the government must properly reach an opinion about the necessity of the capture before authorizing it; and (b) that any active licenses issued to remove horses, and any public land designation, is void. They also sought an Order of mandamus requiring the government to prepare and publish a written opinion before designating any lands as public.

As a preliminary issue, Millar J. considered whether the Applicants had standing to bring the Application, and determined that the Applicants did have standing.

Next, Millar J. considered the admissibility of an Affidavit provided by the Applicants (the “Ticknor Affidavit”). The Province argued that the Ticknor Affidavit was inadmissible, as pursuant to Rule 3.22, only evidence before the decision-maker (including Questioning pursuant to Rule 3.21 if permissible) is admissible on Judicial Review. However, His Lordship determined that the Court could use its discretion to admit the Ticknor Affidavit pursuant to Rule 3.22(d). It noted that this Judicial Review was atypical in that there was not a record of proceedings to review; rather, the question was whether the Minister had properly exercised his jurisdiction. The Ticknor Affidavit was necessary to review the background and context of the legislation and Application.

Millar J. then considered whether the Application had been filed in time. The Province argued that pursuant to Rule 3.15(2), Applications to set aside a decision or act of a Minister must be brought within 6 months (other than habeas corpus Applications which may be brought at any time pursuant to Rule 3.16). The Applicants argued that they were not seeking to set aside the Minister’s decision, but rather seeking declarations in respect of an omission by the Minister.

Millar J. noted that Rule 3.15 specifically states that Rule 13.5, which permits the Court to grant time extensions, does not apply to the 6-month time period in Rule 3.15. His Lordship noted that limitations periods bring finality and certainty to events, and emphasized that the imposition of a hard limitation period in the Rules signals that the legislature intended for the time limit to be a fixed one. Millar J. also emphasized that, where a declaration is sought, the effect of the declaration must be considered. If the effect is to “set aside an administrative decision, the time limit does apply”. Since the Applicants’ intention was not to set aside the legislation, but rather to effectively set aside the Minister’s decision, Millar J. determined that the Application was “well outside of the limitation period” imposed by Rule 3.15. 

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