GRECO v CALGARY (CITY)

This Action arose from a dispute between Christina Greco (“Greco”), the City of Calgary (the “City”) and several Calgary Stampede entities (collectively, the “Stampede Defendants”) concerning the City’s 2012 Development Direction that no development permit was required for the Stampede Defendants’ use of industrial lands adjacent to Greco’s residence (the “Development Direction”). Greco commenced the Action in 2014 by Statement of Claim seeking injunctive relief for nuisance and a declaration that the Stampede Defendants were required to obtain a development permit. The City and the Stampede Defendants argued that the declaratory relief was, in substance, an out of time Judicial Review that had been improperly commenced and was therefore procedurally barred.

Both Parties advanced adverse inference arguments based on the failure to call certain witnesses. Justice Reid explained that drawing an adverse inference is discretionary and depends on factors such as whether there was a legitimate explanation for the absence, whether the witness had material evidence, whether the witness was the best person to provide that evidence, and whether the witness was within the exclusive control of one party. Reid J. noted that the failure to file a Notice pursuant to Rule 8.15 is a relevant, but not determinative, consideration and does not justify an automatic adverse inference. The Court declined to draw adverse inferences, finding that absent witnesses were not within exclusive control of one party or would not have provided material evidence.

The Court assessed the procedural validity of Greco’s claim against the City concerning the Development Direction. Reed J. noted that although Greco relied on Rule 3.2 to commence the Action, it was not applicable where the substance of the relief sought amounted to Judicial Review. Since the declaration sought challenged an administrative decision on permit requirements, Justice Reid found that it was improper to proceed by Statement of Claim and that the Action should have been commenced by an Originating Application for Judicial Review pursuant to Rule 3.15, which displaces the general commencement framework in Rule 3.2.

Reed J. further held that Rule 3.15 imposed a six-month limitation period for any Application challenging the Development Direction, expressly precludes the Court from varying that timeline pursuant to Rule 13.5, and was subject only to the narrow carve out in Rule 3.16. The Court found that Greco had notice of the Development Direction by August 2012 and that the six-month limitation period expired well before the Action was commenced in 2014, rendering the proceeding an abuse of process.

In the end, the Court dismissed Greco’s claims and applied Rule 10.29, holding that the City and the Stampede Defendants, as the substantially successful parties, were presumptively entitled to Costs.