3.15: Originating application for judicial review

Case Summary

Previously, the Appellants brought an Originating Application for a Declaration that a bylaw was void as it conflicted with an inter-municipal development plan. The Court applied Rule 3.15(2) and dismissed the Originating Application, as it was not brought within 6 months of the passing of the bylaw. The sole issue on Appeal was whether the six-month limitation period in Rule 3.15(2) applied to an Application under section 536 of the Municipal Government Act, RSA 2000, c M-26 (“MGA”).

The Appellant argued that:

1.      Rule 3.15(2) did not apply to a statutory remedy (as opposed to judicial review); and

2.      Rule 3.15(2) is inconsistent with the MGA, and the MGA takes precedence over the Rules of Court.

The first argument had two prongs:

1.      The enactment of a bylaw is not a “decision or act” of a body; hence Rule 3.15(2) does not apply; and

2.      An Application to declare a bylaw void is not an administrative law remedy which is subject to judicial review; rather, it is a statutory remedy for which there is no limitation period.

In relation to the first prong of the first argument, the Court held that a municipal council can only act by resolution or bylaw, and accordingly, the decision or act of a municipality is subject to Rule 3.15. In relation to the second prong, the Court cited Papaschase Indian Band No 136 v Canada (Attorney General), 2004 ABQB 651, and held that the limitation period applies to all types of challenges. With respect to the second argument, the Court held that the Rules of Court and the MGA did not conflict, and thus the limitation in the Rules of Court applied. The Appeal was dismissed.

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