3.15: Originating application for judicial review
7.3: Summary Judgment (Application and decision)

Case Summary

At issue on Summary Judgment was whether an Edmonton City Bylaw complied in substance with its empowering legislation, the Municipal Government Act, RSA 2000 c M-26 (“MGA”) and the Principles and Criteria for Off-Site Levies Regulation, AR 48/2004 (“Regulation”).

The Applicants, including the City of Edmonton, did not deny that arguably the Bylaw failed to comply with the Regulation; however, they argued that any claims that the Bylaw was invalid were irrelevant because the Respondents missed a limitation period. The Applicants argued that a challenge to the validity of a Bylaw under s. 536 of the MGA was barred if not brought within six months of its enactment, pursuant to the six month limitation period in Rule 3.15(2). In this case, the Bylaw was enacted on October 1, 2006. The Applicants argued that any challenge to the Bylaw’s validity had to be made by April 1, 2007. The Respondents highlighted that they acquired lands subject to the Bylaw on March 14, 2007, but were not informed by the Applicants that they were subject to a levy under the Bylaw until April 25, 2012. The Respondents argued that they did not know, and could not have anticipated, that levies would be imposed on them prior to the suggested April 1, 2007 limitation expiry. They had an awareness of the Bylaw within the limitation period; however, they did not in abstract scrutinize the Bylaw, nor should they have reasonably been expected to.

The Parties agreed that the test for Summary Judgment, specifically in the context of a limitation period, was that there had to be no genuine issue for Trial, and it had to be plain and obvious that the claim could not succeed; therefore, where a claim was barred by a limitation period, there was no genuine issue for Trial.

Michalyshyn J. noted that, in Okotoks (Town) v Foothills (Municipal District No 31), 2013 ABCA 222 (“Okotoks”), the Court of Appeal characterized the issue as solely being the application of Rule 3.15(2) to an Application under s. 536 of the MGA. One noted difference between the case at bar and Okotoks was highlighted in the Court of Appeal’s statement that, “Okotoks had been involved throughout [in] the process leading to the bylaw”. Michalyshyn J. noted that the Court of Appeal in Okotoks, without mentioning United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City of), 2002 ABCA 131 (“United Taxi”), held that a municipal Bylaw was in fact “a decision or act” subject to the Rule 3.15(2) limitation period. In Okotoks, the Court of Appeal stated that “the Legislature knew full well in 2010 when it enacted the Rules that the judicial review rules, including Rule 3.15(2), were being applied to challenges of bylaws as well as to the traditional judicial review remedies”. The Applicants relied on this statement to conclude that the Okotoks Decision erased any distinction between void and voidable Bylaws for the purpose of Judicial Review proceedings seeking declaratory relief.

While Michalyshyn J. agreed with the Applicants that Okotoks conflicted with United Taxi on its face, and appeared to reverse it, his Lordship noted that the Court of Appeal did not specifically state such an intent. Michalyshyn J. noted that both United Taxi and Wiswell v Winnipeg, [1965] SCR 512 appeared to stand for the proposition that a challenge to an arguably invalid Bylaw would not fail due to an expired limitation period. The Applicants argued that Okotoks changed the law by expanding the definition of “decision or act” to include arguably invalid Bylaws, and by limiting the rule of law by way of the Rule 3.15(2) limitation period. The Respondents attempted to distinguish Okotoks and Wiswell on the basis of the nature of the limitation period, being statutory in the MGA versus general in the Rules; however, Michalyshyn J. agreed that Okotoks could not be distinguished from Wiswell on that basis. Further, Michalyshyn J. noted that the Parties agreed that, but for Okotoks, the prevailing authorities would allow the Applicants to seek declaratory relief, notwithstanding Rule 3.15(2).

The Court then considered the Respondents’ argument that, if the Court was unable to distinguish Wiswell from Okotoks, then the Court was faced with conflicting authorities from the Supreme Court of Canada and the Alberta Court of Appeal, but was bound by the former. Michalyshyn J. felt that the issue was not whether the Court was bound by either Okotoks or Wiswell, but rather whether Okotoks or United Taxi was binding. The Court noted that United Taxi unequivocally followed the established authority in Wiswell; however, Okotoks mentioned United Taxi, but said nothing about Wiswell. Further, the Court of Appeal in Okotoks referred to United Taxi, but preferred other cases where administrative decisions, rather than legislative enactments, were at issue. Okotoks conflicted with United Taxi, but did so with no apparent explanation. Based primarily on the fact that there was no definitive statement in Okotoks setting out that United Taxi was no longer the law in Alberta, the Court was persuaded to follow United Taxi.

In the further alternative, the Respondents argued that if the Court was not obligated to follow United Taxi, then Okotoks was distinguishable on the basis that, unlike the Town of Okotoks, the Respondents in this case had no involvement or reasonable opportunity before the limitation period expired to change the impugned Bylaw. Michalyshyn J. agreed that the Applicants had an arguable case that the Decision in Okotoks was distinguishable on that basis.

Finally, the Respondents argued that, assuming Rule 3.15(2) was a bar to their Originating Application, the Rule itself was ultra vires Alberta, as limiting the powers of the Court. The Respondents argued that, to the extent Rule 3.15(2) precluded Court review of arguably invalid Bylaws, it was unconstitutional for interfering with the powers of a Court appointed under the Constitution Act 1967, 30 & 31 Victoria, c 3 (U.K.), and as recognized in the Judicature Act, RSA 2000, c J-2. After considering the Applicants’ response to this argument, the Court was not persuaded that the Applicants should be denied the chance to advance this argument at the hearing of this matter.

Based on all of the above, the Applications for Summary Judgment were dismissed.

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