7.3: Summary Judgment (Application and decision)

Case Summary

Chemtrade Logistics Inc. (“Chemtrade”) filed a Judicial Review Application regarding two development permits granted by the City of Fort Saskatchewan. A number of developers applied for Summary Dismissal of Chemtrade’s Application on the basis that there was a statutory right of Appeal.

Justice Angotti considered Rule 7.3(1)(b), which permits the Court to dismiss an Action where it has no merit. The parties were not seeking a decision on the merits of the Application, but rather the merits of the threshold question: should the Court exercise its discretion to allow the Application to proceed if there is an adequate alternative remedy and no exceptional circumstances?

As a first step, Justice Angotti considered whether summary disposition was appropriate. Chemtrade argued that it was not appropriate on an Application for Judicial Review, as it involves a review of the merits of the Application and effectively becomes the Judicial Review itself. However, the Applicants sought Summary Dismissal based on a “fatal flaw” argument, rather than on the merits. In this case, the “fatal flaw” was the presence of an adequate alternative remedy and absence of any exceptional circumstances. Justice Angotti therefore held that the Application was appropriate to consider in the circumstances.

Justice Angotti then went on to consider whether the statutory right of Appeal justified an exercise of her discretion to grant Summary Dismissal. The Court acknowledged that, as a general rule, all statutory rights of Appeal must be exhausted before pursuing Judicial Review. However, for one of the permits, no statutory means of Appeal existed. There was therefore no adequate alternative remedy. For the other permit, there was a statutory right of Appeal. However, the function of the statute created prejudice to Chemtrade as it was unable to act on its statutory right of Appeal. This was an exceptional circumstance sufficient to allow the Application.

Justice Angotti therefore dismissed the Summary Dismissal Application.

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