3.15: Originating application for judicial review
3.23: Stay of decision

Case Summary

The Application arose from the Appeal by the Applicant of the cancellation of its registration by the Director (Alberta Environment and Parks) to the Environmental Appeals Board. The Board refused to hear the Appeal due to lack of jurisdiction. Subsequently, a closure plan was submitted to the Director; the closure plan was not approved.

The Applicant sought Judicial Review of the decisions made by the Director and the Board. The Applicant brought an application for an Interim Stay, an Interlocutory Injunction, or an Order in the nature of mandamus allowing the business to continue operating pending the outcome of the Judicial Review.

In accordance with Rule 3.23, the Court may stay the operation of a decision or act sought to be set aside under an Application for Judicial Review pending the determination of the Application. However, a stay should not be ordered if it is detrimental to the public interest or public safety. In this instance, as government authority was involved, the public interest was a special factor considered in determining whether to grant a stay. The Court also noted a similar analysis would apply for an interlocutory injunction, except where a mandatory injunction is sought.

Further, the Court noted that an Order in the nature of mandamus is similar to a mandatory injunction and a public authority or decision maker is compelled to take positive steps by performing a statutory duty owed to the applicant. Rule 3.15 confirms that an order in the nature of mandamus may be granted as a remedy in an application for judicial review; this authority is also echoed in the Judicature Act. Notably, however, mandamus is only available when no other adequate remedy is available.

In general, the Court noted that an Application for Judicial Review to set aside a decision or act of a person or body must be filed within six months after the date of the decision. Failure to comply with the limitation period is fatal to review of that decision and Rule 3.15(2) is strictly construed. The Court has no discretion to extend the deadline. As the Applicant did not file its Application for Judicial Review until 14 months after the decision was made, the Court held that Judicial Review of that decision was out of time.

The Applicant argued that the limitation period was not engaged until the company knew definitively that the Board had declined to take jurisdiction. Until then, it argued, Judicial Review was premature. Consequently, until the Board issued its decision, the limitation period was out of time. The Court disagreed and held that the six-month limitation period commenced the date the Director made the decision to cancel the registration.

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