Paperny, o'FerraLl AND vELDHUIS JJA

1.9: Conflicts and inconsistencies with enactments
14.4: Right to appeal
14.5: Appeals only with permission

Case Summary

The City of Calgary Appealed a Court of Queen’s Bench decision denying it permission to appeal a Local Assessment Review Board Decision. The Chambers Judge had concluded that neither of the proposed grounds of appeal met the test for permission to appeal under the Municipal Government Act, RSA 2000, c M-26 (“MGA”).

Justices Paperny and Veldhuis stated, for the Majority, that, since the Court of Appeal is a statutory Court, a right of Appeal must be found in statute. The Majority noted that it had jurisdiction to hear and determine all Appeals respecting a Judgment, Order or Decision of a Judge of the Court of Queen’s Bench. Rules 14.4 and 14.5 distinguish between Appeals as of right and those that require permission. This Appeal did not fall under the enumerated grounds requiring permission to Appeal found in 14.5. The circumstances would therefore typically fall under Rule 14.4. However, Rule 14.4(1) provides that it applies “except as otherwise provided”.

The Majority held that even if the exception in Rule 14.4 did not apply, Rule 1.9 is clear that, where there is a conflict between the Rules and another enactment, the other enactment prevails. Accordingly, the restrictions on the right of appeal in s.470 of the MGA prevails over the general appeal provisions in the Rules.

In this case, the Legislature had “otherwise provided” an alternative appeal process, which is found in s. 470 of the MGA. The Legislature expressly provided that a Judge of the Court of Queen’s Bench must determine whether permission to appeal should be granted. The Legislature did not provide for an Appeal of such decision to the Court of Appeal, and the Majority of the Court of Appeal determined that the Court lacked jurisdiction to do so. The Appeal was dismissed accordingly.

Justice O’Ferrall, concurring in the result, noted that there is nothing in the Rules of Court which constrains the Court of Appeal’s power and jurisdiction other than the requirement, in certain cases, to seek permission to appeal pursuant to Rule 14.5. Rule 14.4(1) confirms the broad jurisdiction of the Court of Appeal. There are no express words in s.470 of the MGA which limit the application of Rule 14.1(1). The Court of Appeal, therefore, has the discretion to restrain Judges from the lower Courts when they are not acting judicially in granting or denying permission to Appeal.

View CanLII Details