Topolniski J

3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

A developer and the City of Edmonton disagreed on whether a newly constructed apartment building needed to comply with statutory requirements for barrier-free access. One of the Applications before the Court was for Judicial Review and an Order requiring the City to issue variances for a building permit. However, since the Application had been commenced, the Government of Alberta had issued a relaxation of the statutory barrier-free requirements. Accordingly, the City argued that the current Application was now moot, and that it should be summarily dismissed. Madam Justice Topolniski agreed with the City that the developer’s Application for Judicial Review was now moot.

In reaching its Decision, the Court applied Rule 7.3 and also considered the recent Supreme Court decision in Combined Air Mechanical Services Inc v Flesch, 2014 SCC 7. Topolniski J. stated that, if a Court is able to reach a “fair and just determination on the merits of a motion for summary judgment”, there is no genuine issue requiring a Trial. The Court further confirmed previous case law, and held that the current test for Summary Judgment in Alberta is whether there is a reasonable prospect that the claim will succeed, and not whether it is plain and obvious that no claim is disclosed. Rule 7.3 is not confined to the “genuine issue for trial” test, but calls for a holistic analysis of whether the claim has merit.

The Court also considered Rule 3.68, and stated that the principle found in Combined Air is also applicable under Rule 3.68.:

Rule 3.68(2)(d) permits the Court to strike a pleading if the commencement document or pleading constitutes an abuse of process.

Topolniski J. also cited Reece v Edmonton (City), 2011 ABCA 238, and stated that an abuse of process is a context-specific principle to control misuse of the judicial system. Thus, asking a Court to judicially review a moot question constitutes an abuse of process.

The developer’s Application for judicial review was dismissed and struck on a summary basis

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