SPECIAL AREAS BOARD v ATCO POWER CANADA LTD, 2018 ABQB 1035
3.15: Originating application for judicial review
ATCO sought to strike an Application by the Special Areas Board for Judicial Review of a Decision by the Central Alberta Regional Assessment Review Board. ATCO claimed the Application was out of time. The Application for Judicial Review was filed and served 61 days after the date of the Decision, and 57 days after the notice of Decision was provided and received by email.
Both Rule 3.15 and section 470 of the MGA Municipal Government Act, RSA 2000, c M-26 (the “MGA”) reference the time for bringing an Application for Judicial Review in relation to the “date of the decision.” Because of this, Her Ladyship considered the effect of that language being used both in the MGA and Rule 3.15(2).
In respect of the Rules, Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29 at para 27 provides that “…[u]nless there is a clear and stated obligation to provide notice of a decision, the six-month limitation runs from the date of the decision…”
Slawinsky J. noted that the period of time provided in section 470 of the MGA is much shorter than the six month filing deadline prescribed by Rule 3.15. However, apart from the time limit for commencing an Application, Her Ladyship confirmed that the Rules on the conduct of Judicial Review Applications govern the procedure for the review of Assessment Review Board decisions. Then Slawinsky J. noted that there is a presumption that the Legislature “understood the effect of using ‘date of the decision’ in both the MGA and the Rules,” and that the requirement for notice of a Decision of the Assessment Review Board, pursuant to section 469 of the MGA, is relevant in determining the start of a limitation period. Further, Slawinsky J. found that the Legislature could have used language other than “date of the decision,” as in other limitation sections in the MGA, but chose not to.
Finally, Slawinsky J. remarked that the Assessment Review Board’s Decision contained a notation remarking that the Decision could be appealed through an Application for Judicial Review to be filed and served “within 60 days of being notified of the decision.” Based on this, Her Ladyship concluded that by using the phrase “date of the decision,” the Legislature intended to shorten the time for commencing Judicial Review, but did not intend a different meaning than that implied by Rule 3.15(2). Accordingly, Slawinsky J. held that section 470 of the MGA prescribes a limitation period that starts on the date the notice of the Assessment Review Board’s Decision is given, not on the date of the Decision itself.
Accordingly, the Application for Judicial Review was filed and served in time, and ATCO’s Application was dismissed.View CanLII Details