This was an Application for Judicial Review of certain resolutions passed by Wheatland County (“Wheatland”) sanctioning Councillor Glenn Koester (“Councillor Koester”) for violations of Wheatland’s Code of Conduct Bylaw, being Wheatland County Bylaw No. 2022-5 in force at the relevant times (the “Code”).

In accordance with Rule 3.19, Wheatland requested a restricted Court access Order for the record of proceedings filed in the Judicial Review, pursuant to Part 6, Division 4 of the Rules. The Court granted this request on June 23, 2023, with the consent of both parties (the “Sealing Order”).

This Application dealt, in part, with the maintenance of the Sealing Order. The Court noted that  the only evidentiary record sealed by the Sealing Order was the relevant investigation report, which related to the complaints filed against Councillor Koester, which was submitted to Wheatland. The Court examined Rule 6.34, which provides that an Application to seal a Court file must be filed, and Rules 6.34-6.36, which require evidence that the Application is served upon persons with any relevant standing, and that there has been no publication pending the Application. The Court concluded that the parties had not fulfilled the requirements outlined in these Rules, as there was no filed Application, nor was there any evidence that Rules 6.34-6.36 had been complied with. As a result, the Court could not make a determination regarding the maintenance of the Sealing Order until the Rules had been complied with.

Councillor Koester sought to have the investigation report made public and his motion was voted down and defeated by Council in Resolution CM-2022-04-54 (the “IR Disclosure Resolution”). Wheatland argued that the Originating Application did not challenge the IR Disclosure Resolution. It further argued that Councillor Koester was barred by Rule 3.15(2) from challenging the IR Disclosure Resolution, suggesting such a challenge would be an impermissible collateral attack since the relief sought is not included in the Originating Application.

The Court considered Rule 3.18(2), which provides that Wheatland is to include further disclosure if it exists such as: (a) the written record, if any, of the decision or act that is the subject of the originating Application for Judicial Review; (b) the reasons given for the decision or act, if any; (c) the document which started the proceeding; (d) the evidence and exhibits filed with the person or body, if any; and (e) anything else relevant to the decision or act in the possession of the person or body.

The Court examined Rule 3.18(2) and acknowledged that previous case law had determined that an Applicant is entitled to disclosure as a fundamental aspect of procedural fairness. The concept of procedural fairness is subjective and dependent on the specific circumstances. The Court highlighted Rule 3.15 which states that an Originating Application must be filed seeking the appropriate relief and, in this case, Rule 3.15 has not been adhered to. The Originating Application did not request the relief in question, and there was no proper Judicial Review of the IR Disclosure Resolution. No such claim was pleaded or argued, and neither certiorari nor mandamus was sought. Consequently, the Court held that the request for "An order requiring Council to publicly disclose the Investigation Report" could not be granted.

Counsellor Koester's Application further invoked Rule 3.22, which allows the Court to consider certain evidence on Judicial Review, requesting an Order for certiorari regarding the resolutions. The Court emphasized that the standard practice is to conduct Judicial Review based on the record of proceedings submitted by the public body (in this case, Wheatland), with the use of Affidavits being considered exceptional. However, the Court recognized that there are specific exceptions to this standard procedure. Both parties acknowledged that Rule 3.22 governs the admissibility of the Affidavit evidence presented by Counsellor Koester. The Court also recognized that there are limited situations where additional evidence may be taken into account.

The Court then evaluated various Affidavits to determine their overall admissibility. Ultimately, the Court decided that the parties could submit appropriate Applications to request the lifting of the Sealing Order in accordance with the Rules. Until then, the details of this Application would remain confidential.