Jul 30, 2014

Mammoet v. Edmonton: The Alberta Court of Appeal Clarifies Judicial Review on Bylaw Validity

Mammoet 13220-33 Street NE Limited v Edmonton (City), 2014 ABCA 229 (CanLII)

Originally published July 24, 2014

On July 10, 2014, the Alberta Court of Appeal released Mammoet 13220-33 Street NE Limited v Edmonton (City), 2014 ABCA 229, a decision dismissing the City’s appeal of a dismissal of a summary judgment application. This decision clarified the law surrounding the six-month limitation period for originating applications for judicial review and how it interacts with questions of bylaw validity.

Kiewit Energy Canada Corporation, who is co-respondent with Mammoet in this action, previously succeeded in a related appeal where the City of Edmonton was precluded from imposing an off-site levy as Kiewit has previously paid an off-site levy on the property in question. (See Kiewit Energy Canada Corp v. Edmonton (Subdivision and Development Appeal Board), 2013 ABCA 407.)

Mammoet and Kiewit initially filed an originating application against the City of Edmonton claiming that off-site levies imposed on the applicants by the City have no relationship or correlation to the impact of the development of the lands, that the levies are inequitable, that the accompanying City bylaw fails to meet its regulatory requirements, and sought an order either severing their lands from the bylaw or an order quashing the bylaw in its entirety.

The City brought an application for summary judgment that was narrow in scope and dealt only with the invalidity of the bylaw according to the Principles and Criteria for Off-site Levies Regulation as well as the limitations period for bringing the Originating Application. Both sides agreed there was an arguable case regarding whether the bylaw complied with off-site levy regulations, so the central issue focused on if the six-month limitation period under Rule 3.15(2) of the Alberta Rules of Court.

The crux of the issue was two competing precedents in regard to the limitation period, Okotoks (Town) v. Foothills Municipal District No 31, 2013 ABCA 222 (Okotoks 2013) and United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City of), 2002 ABCA 131. In the United Taxi decision, the court held that the limitation period does “not affect the ability of a court to decide the municipality lacked the jurisdiction under its constituent legislation” (para 162). However, the Okotoks 2013 decision stated that the passing of a municipal bylaw “was a decision or act of a person or body” and was thus subject to Rule 3.15(2) limitation. The Chambers judge followed United Taxi and dismissed the application for summary judgment.

On appeal, the appellants claimed that the Chambers judge erred in not following Okotoks 2013. The Court of Appeal upheld the Chambers judge’s decision, but distinguished Okotoks 2013 and United Taxi. The Court found that the principle in Okotoks 2013 is that the six-month limitation applies to an applicant challenging the validity of a municipal bylaw, but only if the applicant is alleging that the bylaw is voidable rather than void. The appeal was then dismissed.