Envision Edmonton Opportunities Society v. Edmonton (City), 2011 ABQB 131

Court of Queen ’ s Bench of Alberta Citation: Envision Edmonton Opportunities Society v. Edmonton (City), 2011 ABQB 131 Date: 20110304 Docket: 1003 16883 Registry: Edmonton In the Matter of In the Matter of the Municipal Government Act being

Chapter M-26 of the Revised Statutes of Alberta, 2000 and Amendments Thereto Between: Envision Edmonton Opportunities Society and Charles Allard Applicants - and - The City of Edmonton Respondent _______________________________________________________ Reasons for Judgment of Chief Justice Neil Wittmann _______________________________________________________ INTRODUCTION [ 1 ] The Municipal Government Act , RSA 2000, c. M-26 (the “ MGA ”) allows electors to petition for a new bylaw subject to a number of relevant provisions.

The office of the City Clerk for the City of Edmonton (the “City”) received a Petition on August 26 th , 2010 from Charles Allard, the representative for Envision Edmonton Opportunities Society (the “Applicants”). The City Clerk declared that the Petition was insufficient under the MGA because it was not filed within 60 days of a resolution of City Council made on July 8 th , 2009. The Applicants seek judicial review of that decision, ask this Court to quash the decision of the City Clerk, to declare that the Petition was brought in time and state it is therefore sufficient insofar as any time limit is concerned.

BACKGROUND FACTS

[ 2 ] On August 25 th , 2010, the Applicants sent a letter addressed to the Chief Administrative Officer of the City concerning the City Centre Airport, formerly the Municipal Airport, formerly the Edmonton Industrial Airport and stating that a total of 92,563 signatures were obtained on a Petition question to the Council of the City, all being electors of the City, petitioning the Council of the City to pass the following bylaw: The City of Edmonton will: (

a) keep the City Centre Airport open as a general aviation airport; (

b) promote the operations of the City Centre Airport as a general aviation airport; and (

c) retain the existing City Centre Airport infrastructure including the existing airport lands with at least two open runways being the 16-34 and 12-30 runways. [ 3 ] On July 8 th , 2009, City Council passed a Resolution which stated that a phased closure of the City Centre Airport be approved and directed that the City Manager negotiate with the Edmonton Regional Airports’ Authority to immediately amend the lease agreement to include, as part of Phase 1 closure, the immediate closure of runway 16-34, the determination of the adjacent lands to runway 16-34 which can be surrendered to the City once air services on the runway cease, amongst other activities, all of which are detailed in the Resolution. [ 4 ] Upon receipt of the Petition, the City Clerk made a declaration on the sufficiency of it as the delegate of the Chief Administrative Officer, pursuant to s. 225(1) of the MGA , to determine all matters pertaining to petitions received by the City.

She declared the Petition not sufficient on two grounds. The relevant ground in issue on this application is the timing of the filing of the Petition.

The City Clerk declared that the Petition was not sufficient pursuant to the provisions of s. 233(2) of the MGA on the basis that it was not filed within 60 days following July 8 th , 2009, namely September 7 th , 2009. [ 5 ] In her reasons, the City Clerk indicated that the purpose of the Petition was to require the City to operate and promote the operations of a two runway general aviation facility on the City Centre Airport lands and that the Resolution of July 8 th , 2009, would have to be amended or repealed because the City Council resolved to close the City Centre Airport in phases and to redevelop the land for non-aviation uses and also directed the immediate closure of runway 16-34.

In short, the City Clerk found that the Petition was to keep the City Centre Airport open in the face of a previous Resolution by the City Council to close the City Centre Airport and that by requesting a new bylaw to keep the City Centre Airport open, the July 8 th , 2009 Resolution would have to be either amended or repealed. [ 6 ] The issue before me, as directed by Moen, J. in Envision Edmonton Opportunities Society v.

Edmonton (City) , 2011 ABQB 29 , at para 143 , is: Was the Petition presented to the City of Edmonton on August 26, 2010 by Envision Edmonton Opportunities Society out of time pursuant to s. 233(2) of the Municipal Government Act , R.S.A. 2000, c. M-26? Does the limitation period set out in the Municipal Government Act even apply in the circumstances of this case? RELEVANT PROVISIONS OF THE MUNICIPAL GOVERNMENT ACT [ 7 ] The key provision to be interpreted is s. 233(2). It states as follows:

(2) A Petition under

section 232 requesting an amendment or repeal of a bylaw or resolution is not sufficient unless it is filed with the chief administrative officer within 60 days after the day on which that bylaw or resolution was passed.

[ 8 ] Section 232(1) of the MGA states as follows: 232(1) Electors may petition for (

a) a new bylaw, or (

b) a bylaw to amend or repeal a bylaw or resolution on any matter within the jurisdiction of the council under this or another enactment. [ 9 ] Section 233(3) of the MGA states as follows:

(3) Within 30 days after the day on which the chief administrative officer declares a petition submitted under

section 232 to be sufficient, the council must give first reading to a bylaw dealing with the subject-matter of the Petition and any other related matters the council considers necessary. [ 10 ] S. 233(4) of the MGA states as follows:

(4) If the bylaw is not required to be advertised under this or another enactment, the council must (

a) within 30 days after the bylaw receiving first reading pass the bylaw, or (

b) fix a date that is within 90 days after the bylaw receives first reading for a vote of the electors on the bylaw. [ 11 ] Dealing with petitions generally, s. 225(1) of the MGA states: 225(1) A petition must be filed with the chief administrative officer and the chief administrative officer is responsible for determining if the petition is sufficient. [ 12 ] S. 226 of the MGA states as follows: 226(1) Within 30 days after the date on which a petition is filed, the chief administrative officer must make a declaration to the council or the Minister on whether the petition is sufficient or insufficient. ...

(3) If a petition is not sufficient, the council or the Minister is not required to take any notice of it. [ 13 ] S. 209 of the MGA refers to the delegation by the chief administrative officer and states as follows: 209 A chief administrative officer may delegate any of the chief administrative officer’s powers, duties or functions under this or any other enactment or bylaw to a designated officer or an employee of the municipality. [ 14 ] In addition, s. 180(1) of the MGA states:

180(1) A council may act only by resolution or bylaw. ANALYSIS Judicial Review [15] This is an application for judicial review wherein the Applicants submit that the limitation period set out s. 233(2) of theMGA does not apply to the Petition. The Applicant wants this Court to quash the decision of the City Clerk that the Petition wasinsufficient on this ground. [16] As is stated in Principles of Administrative Law, by Jones and de Villars (4th ed.) 2004, Thomson Carswell, judicial reviewis not the same as an appeal.

This Court does not generally have the right to substitute its appraisal of the merits for any lawful actiontaken by an administrative delegate such as the City Clerk in this case. [17] The modern law of judicial review has evolved in this century to the point where the characterization of the function or issuebeing reviewed in large part drives a standard of review, of either correctness or reasonableness, that the court must apply in its analysisof the issue.

The selection of the standard of review is important because it often determines the outcome in favour of, or against, anapplicant or respondent in any given case. Characterization of the Issue [18] It is common ground that the issue posed, that is the

interpretation of s. 233(2) of the MGA, is not an issue of fact.Characterizations of issues in terms of true jurisdiction, a question of law, a question of mixed law and fact or a question of fact are wellknown for the purposes of appellate review: Housen v. Nikolaisen, [2002] S.C.R. 235. For the purposes of judicial review, Dunsmuir v.New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, is the guiding authority. [19] Counsel were asked to address the standard of review issue extensively at the oral hearing. They did.

The Applicantssubmitted that the issue is a question of law which attracts a standard of review of correctness. In other words, the decision of the CityClerk declaring the Petition not sufficient on the grounds of a limitation period must, in law, be the correct decision. [20] The City, on the other hand, took the position that in this particular case, the issue was one of mixed fact and law.

That is, thatthe City Clerk had to interpret s. 233(2) of the MGA, but within the context of the facts of the matter, including the date of the Petition,what the Petition sought and whether it requested a repeal or amendment of an already existing bylaw or resolution and, if so, what wasthe resolution or bylaw. The City also argued that even if the proper characterization was a question of law, the standard of review isreasonableness.

In addition, the City took the position even if the appropriate standard of review was correctness, the City Clerk’sinterpretation was not only reasonable, but was also correct. [21] Housen, a case dealing with the standards of review in the context of an appeal and the proper characterization of issuesdetermining them, provides useful guidance in characterizing the question or issue to be decided. There, the court was careful to indicatethat a question of mixed fact and law was sometimes, on deeper consideration, an extricable question of law.

It gave as examples whethera person was negligent and distinguished between defining the standard of care and whether the facts indicated the person in questionfell short of, or met, or exceeded that standard. Defining the standard of care is an extricable question of law: para 31. The court alsodealt with another example, that is the identification of individuals within a corporate structure as directing minds.

In that case, the courtstated the extricable question of law was the issue of the functions required in order to properly identify a “directing mind” within acorporate structure: para 34. [22] Thus, as the court stated, if there is an extricable issue of law involved in questions of mixed law and fact, a standard ofcorrectness may apply, whereas if the question was defined as a mixed question of fact and law, the standard of review was notcorrectness but rather palpable and overriding error.

[23] But this case does not involve appellate review. It is judicial review. Once the issue is characterized, different standards ofreview may emerge as different considerations are applicable to judicial review. [24] Here, on examination, I find the issue posed, that is the

interpretation of s. 233(2) of the MGA. in terms of whether it isapplicable to the Petition presented, is an issue of statutory

interpretation and is an extricable question of law. Standard of Review [25] As stated earlier, different considerations apply to selecting a standard or review for judicial review as opposed to appellatereview. [26] The modern seminal case for the selection of a standard of review in matters of judicial review is Pushpanathan v Canada(Minister of Employment & Immigration), (SCC), [1998] 1 S.C.R. 982. In that case, the court stated that determiningthe standard of review was a pre-requisite to the disposition of the case: para 25.

This case resurrected to prominence the “pragmatic andfunctional” approach to determine legislative intent and indicated there are four criteria to be taken in account to determine the standardof review. Namely: 1. The presence or absence of a privative clause. 2. The expertise in terms of the specialized knowledge of the decision maker. 3. The purpose of the statute as a whole and the provision to be interpreted in particular. 4.

The nature of the problem in terms of whether it is a question of law or fact. [27] Approximately 10 years later, this approach was refined in Dunsmuir, the applicable binding authority today. [28] In Dunsmuir, a grievance process was commenced after Dunsmuir was terminated and a preliminary issue of statutoryinterpretation arose as to whether the dismissal was with notice or pay in lieu thereof. The adjudicator was authorized to determine thereasons for the Province’s decision to terminate.

As stated by the court at para 24, the appeal gave the court an opportunity to re-examinethe foundations of judicial review and the standards of review applicable in various situations. [29] The court began with a review of the adjudicator’s statutory

interpretation determination.

The court then proceeded todescribe judicial review in Canada as having been in a “constant state of evolution over the years, as courts have attempted to deviseapproaches to judicial review that are both theoretically sound and effective in practice”: para 32. [30] While indicating that the “pragmatic and functional approach” had been used in the past, the court also stated the phrase mayhave misguided courts and effectively indicated that, in future, the “standard of review analysis” terminology would be used because thename is unimportant: para 63. [31] The case also emphasized that if the jurisprudence had already determined in a satisfactory manner, the applicable standard ofreview, it was unnecessary for a new reviewing court to go through the same exercise: para 62.

It is necessary, however, to engage in theexercise where that inquiry proves unfruitful. Then, a contextual analysis must be undergone, including a consideration of the same fourPushpanathan factors mentioned earlier. In this case, the inquiry has not been fruitful and a contextual analysis is required.

[ 32 ] In a case released the day after oral argument in this matter was heard, Smith v. Alliance Pipeline Ltd. , [2011] S.C.C. 7, the Supreme Court of Canada affirmed that the Dunsmuir analysis remains the law to determine the appropriate standard of review. In Smith , an arbitration committee was appointed pursuant to the National Energy Board Act (“ NEBA ”) R.S.C. 1985, c. N-7, to determine the compensation to an Alberta landowner as the result of an expropriation agreement.

The Supreme Court characterized the issue as whether the “costs” in s. 99(1) of the NEBA referred solely to expenses incurred by an expropriated owner. Fish, J., speaking for the majority, stated that what was at issue was an

interpretation of the tribunal’s enabling or “home” statute and stated that under Dunsmuir , this will usually attract a reasonableness standard of review. He affirmed that nothing in his reasons represented “a departure from Dunsmuir ”: para 28 . He did, however, do the contextual analysis indicating that the arbitration committee was interpreting a provision of its home statute but that costs were “invariably fact sensitive and generally discretionary”: para 30. [ 33 ] In addition, he found that the

interpretation of s. 99(1), in order to apply it in accordance with the statutory mandate, involved a process where the legal issues could not easily be separated from the issues of fact: para 32.

All of these considerations, Fish, J. stated, pointed “unmistakably” to a standard of review of reasonableness: para 33. [ 34 ] Fish, J. also decided the issue in Smith did not involve a question of law on a constitutional issue; or an issue of general law of central importance to the legal system; or one outside the adjudicator’s specialized area of expertise; nor did it involve drawing jurisdictional lines between two or more competing specialized tribunals: para 34. The standard of review of correctness governs these issues.

Fish, J. stated at para 26 of Smith : Under Dunsmuir , the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of "general law 'that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise'" ( Dunsmuir , at para. 60 citing Toronto (City) v.

C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62 ); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a "true question of jurisdiction or vires " (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the

interpretation of the tribunal's enabling (or "home") statute or "statutes closely connected to its function, with which it will have particular familiarity" (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). [ 35 ] In another case released by the Supreme Court of Canada earlier this year, Celgene Corp. v. Canada (Attorney General) , [2011] S.C.C. 1, the Supreme Court of Canada again dealt with the issue of statutory

interpretation for the purposes of judicial review. At issue was a provision in s. 83(1) of the Patent Act , R.S.C. 1985, c. P-4, which required a patentee of a medicine to provide the Patented Medicine Prices Review Board with information so that it could investigate the price at which Thalomid is being, or has been sold, in any market in Canada. [ 36 ] Under a Special Access Programme, Canadian doctors are able to order Thalomid from the United States. It is packed and shipped to the doctor in Canada. An invoice is prepared in New Jersey, mailed to Canada and direct payment is to be made in US dollars.

When Celgene obtained a Canadian patent, it was advised by the Board that the Board now had jurisdiction to request pricing information. Ultimately, Celgene refused on the basis that the medicine was “sold” in New Jersey and was outside of the Board’s authority.

The Board ultimately decided that it was dealing with a jurisdictional issue, that it had jurisdiction because the drug was being sold in a market in Canada. [ 37 ] In refusing to disturb the Board’s decision, the Supreme Court of Canada, in a unanimous decision delivered by Abella, J., viewed the legislative context and the consumer protection purpose of the

section in question, to support the Board’s conclusion that it had authority over Celgene’s sales of Thalomid to Canadians through the Special Access Programme. The last two substantive paragraphs of the judgment are of interest: paras 33 and 34. [ 38 ] Abella, J. noted that neither party presented any argument about the standard of review because both had proceeded throughout the judicial review process on the basis that the applicable standard was correctness.

She stated in para 33 “....while the parties should not be able, by agreement to contract out of the appropriate standard of review, like Evans, J.A., I am of the view that the Board’s decision would be upheld under either standard”. [ 39 ] Finally, Abella, J. indicated that she also questioned whether correctness was, in fact, the operative standard. In para 34, she said after stating just that, she went on to state that this was a specialized tribunal interpreting its enabling legislation and that only if the Board’s decision was unreasonable would it be set aside.

Therefore, she found the Board’s decision as unassailable under either standard of review.

Application [ 40 ] What have we here? Although care must be taken as to how one phrases the question, I find we have a question of law. That is, whether s. 233(2) of the MGA is applicable or is engaged when the Applicants presented their Petition for a new bylaw in August, 2010. Although some may choose to characterize the issue as a question of mixed law and fact akin to the costs issue in Smith , I prefer to characterize the issue as an extricable question of law wherein the decision maker is called upon to interpret the enabling or “home” statute.

It is similar to the example in Housen as to whether the correct standard of care was articulated in order to find negligence. The statement of the standard of care is an extricable issue of law. Applying the facts to that standard is an issue of mixed law and fact. But what is extricable is the statement of the standard of care. [ 41 ] So, too here, I find that whether s. 233(2) is engaged or is applicable, is an extricable question of law. Both parties agree that if it is engaged, the Applicants are out of time.

If it is not engaged, there is no time limit and the Petition cannot be declared insufficient on that ground. [ 42 ] But the matter does not end there. The contextual analysis must be done because, as is evident from the authorities, a question of law can be subject to a standard of review of correctness or reasonableness. [ 43 ] The first contextual factor is the presence or absence of a privative clause. There is none here. The second is the purpose of the tribunal as determined by

interpretation of enabling legislation. The purpose of the Chief Administrative Officer (as delegated to the City Clerk) in declaring a petition sufficient or insufficient, is to filter out or otherwise screen petitions that do not comply with the provisions of the MGA . [ 44 ] The third factor I have already found for the purpose of this analysis is a question of law involving an

interpretation of a provision in the enabling or “home” statute. The fourth factor is the expertise of the tribunal, in this case the Chief Administrative Officer, who must be taken to have some expertise in interpreting the home statute, i.e., the provisions of the MGA having to do with petitions and their sufficiency as that person is the only person called upon by the statute itself to make the determinations of sufficiency. [ 45 ] In Dunsmuir , the court said “There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness.

It simply means giving the adjudicator’s decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the factors indicated”: para 56. [ 46 ] At first glance, one might question whether a more principled approach is to have all questions of law decided on the basis of correctness. After all, when courts review questions of law, surely they are capable of giving the correct

interpretation of the question and this

interpretation in turn can and will guide the administrative decision makers as well as lower courts in future. But that is not the law. The law is that where a statute is capable of more than one reasonable

interpretation, the decision maker’s conclusion ought not to be disturbed if it has picked one of them, provided the standard of review is reasonableness, as opposed to correctness. [ 47 ] As stated earlier, exceptions include constitutional questions, “true” questions of jurisdiction or vires , one that is of central importance to the legal system outside of the decision maker’s specialized area of expertise and questions involving jurisdictional lines between two or more competing specialized tribunal: Dunsmuir paras 58-61 . [ 48 ] None of those latter considerations are involved here.

I am therefore driven to the conclusion that on the question of law presented, the standard of review is reasonableness, not correctness. What Is Reasonableness ? [ 49 ] Dunsmuir is best known for eliminating three standards of review and conflating the former standards of reasonableness

simpliciter and patent unreasonableness into one standard: reasonableness. In Dunsmuir, this is referred to as “the revised system”: para45. [50] Reasonableness in the context of the deferential standard means “... a court conducting a review for reasonableness inquiresinto the qualities that make a decision reasonable referring both to the process of articulating the reasons and to outcomes. In judicialreview, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision makingprocess. ...

It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible inrespect of the facts and law.”: Dunsmuir, para 47. The

Interpretation of S. 233(2) of the MGA [51] The Applicants rely on three central submissions with respect to the

interpretation of s. 233(2) of the MGA. I will deal witheach in turn. [52] The first is that the Petition requests a new bylaw, not a request for an amendment or a repeal of a bylaw or resolution andtherefore s. 233(2) is not applicable. [53] In support of this argument, the Applicants say there is a process for amendment and repeal of bylaws set forth in s. 191 of theMGA but there are no provisions that address amendment or repeal of resolutions contained in the MGA.

Moreover, the City’sProcedures and Committee’s Bylaw 12300 (the “Procedures Bylaw”) does not contain any requirement for repeal of prior resolutions inorder to pass a bylaw dealing with the same or similar subject matter. However, as the City points out, the Procedures Bylaw states thatwith some exceptions, once Council has dealt with a matter, a motion that would have a similar result may not be made. [54] The Applicants also rely on the legislative evolution of the section. The Applicants point out that the Municipal GovernmentAct, 1985, c.

M-43, (the “old MGA”) stated as follows in s. 125(2): A Petition under this

section for a bylaw that will have the effect of repealing, amending or suspending an existing bylaw or resolutionhas no effect unless it is filed with the Municipal Secretary within 60 days of the day on which the existing bylaw or resolution waspassed [emphasis supplied]. [55] The Applicants argue that in accordance with well-known principles of statutory

interpretation, amendments are meant toeffect change and that the successor section 233(2) does not make any reference to a bylaw that “has the effect of amending or repealing abylaw or resolution.” Therefore, the argument goes, because these words do not appear in s. 233(2), the decision maker, the City Clerk,cannot interpret s. 233(2) of the MGA by considering the effect of a new bylaw on an existing Resolution. [56] Carrying this argument to its logical conclusion, the Applicants say that the City can effectively defeat any petition by findinga prior resolution dealing with the same subject matter more than 60 days after that resolution is passed; effectively, any petitions dealingwith that subject matter would be barred under s. 233(2) of the MGA, at least since 1994, the date the MGA was passed. [57] Finally, the Applicants say that s. 233(2) of the MGA is a limitation period and that limitation periods with respect to thefiling of petitions must be strictly construed against the City.

In support, the Applicant cites Ordon Estate v. Grail, (SCC), [1998] 3 S.C.R. 437 at para 136 and Tardif (Estate of) v. Wong, 2002 ABCA 121 at para 121. [58] In response, the City argues that there can be no doubt that the Applicants are attempting to amend or repeal the Resolution passed by City Council on July 8th, 2009. The City points out that all decisions made by a municipal council in Alberta are made eitherby resolution or bylaw. [59] The City submits that the decision of Claresholm (Town) v. Green, 2003 ABQB 873, is directly on point.

In that case, thePetition was for a new bylaw and it was not brought within the 60 day time period provided in s. 233(2) of the MGA. Nor did it

specifically request the amendment or repeal of a resolution previously passed on the same subject matter. Sulatycky, J., as he then was,stated at para 10: The Petition is subject to the 60-day filing deadline only if it requests the repeal or amendment of the Council's resolution to build a newlibrary. On its face, the Petition does not seek to repeal the Council's resolution of October 28, 2002. Instead, the Petition requests a newbylaw requiring a vote on the proposed new library. However, when characterizing a Petition, the Court must look beyond the statedpurpose of the Petition.

The Court must also look to the Petition's effect and any indirect purpose it may have. In short, the Court mustlook to substance rather than form. [60] Sulatycky, J. found that the Petition was not filed within the applicable 60 day s. 233(2) limitation period precisely because itwould have the effect of repealing Council’s resolution passed over eight months earlier. It was thus held the Petition was insufficient onthis ground. [61] In coming to his decision, Sulatycky, J. also referenced the case of Blach v. Sturgeon (Municipal District No. 90), (May 27th,1991), Doc. Edmonton 9003-22604 (Alta.

Q.B.) a decision of Murray, J. In Blach, residents of Sturgeon presented a Petition prohibitingthe erection or continuance of a natural gas processing plant on certain lands which had been re-zoned by bylaw to allow the constructionof a gas processing plant by Norcen Energy Resources Ltd. (“Norcen”) on the lands. The plant was constructed at a cost to Norcen of about 10 million dollars and had been in operation since December 10th, 1990.

Murray, J. noted that the land use bylaw permitting the construction of the plant was passed March 16th, 1989 and the Petition to prevent it was filed with the Municipal Secretary August 21st,1990, 17 months later. He held that it simply had no effect relying on s. 125(2) of the old MGA. [62] The Applicants reply that this was a decision under s. 125(2) of the old MGA and that Sulatycky, J. did not carry out anyanalysis of the legislative change from the wording of 125(2) of the old MGA compared to s. 233(2) of the new MGA.

Thus, theApplicants say that issue was not argued in front of Sulatycky, J. and therefore the case ought to be given little weight. Statutory

Interpretation Principles [63] The City points out that in A.U.P.E. v. Lethbridge Community College, 2004 SCC 28 , [2004] 1 S.C.R. 727, theSupreme Court, in a judicial review case involving the decision of an arbitration panel, considered “the modern approach to statutoryinterpretation”. At para 25, Iacobucci, J., speaking for a unanimous court, adopted a statement by Driedger that “the words of

an Act areto be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87.” [64] The court reiterated that not only has this approach been adopted in numerous cases from the Supreme Court of Canada butalso is a principle supported by the

Interpretation Act, R.S.A. 2000, c. I-8, s. 10 which states that “... [a]n enactment shall be construedas being remedial, and shall be given the fair, large and liberal construction and

interpretation that best ensures the attainment of itsobjects”: para 25. [65] Dreidger’s modern principle is again set forth in Sullivan on the Construction of Statutes, 5th ed. by Ruth Sullivan(Lexis/Nexis Canada Inc. 2008). She refers to three dimensions of the modern principle in the first three pages of her text. First, the chiefsignificance is that statutory

interpretation is complex and has a multi-dimensional character and emphasizes textual meaning. Thesecond dimension embedded in the modern principle is legislative intent and is referred to by Dreidger as the scheme and object of thestatute and the intention of the legislature or parliament. The third dimension Sullivan refers to in the opening of her text as regards to themodern principle is compliance with established legal norms, referring to the entire context in which the words of a statute must be readand also as being part of legislative intent, express, implied, presumed or declared.

Limitation Periods [66] One of the cases relied on by the City, Bowes v. Edmonton (City), 2007 ABCA 347, involved a claim in negligence againstthe City of Edmonton for failing to consider and disclose their geo-technical report to the Plaintiffs who owned three homes that werebuilt adjacent to a river bank which collapsed, destroying the homes. The trial judge found that the claims were barred by s. 3(1)(

b) of

the Limitations Act , R.S.A. 2000, c. L-12. [ 67 ] In his analysis of this issue, Côté J.A., for the majority, adopted the modern approach to statutory

interpretation even when interpreting the Limitations Act . He said at paragraph 142: “ ... Now all legislation is to be read in its entire context and harmoniously with the scheme and object of the legislation; one cannot stop with its words in isolation ...” Further, he went on to add that when interpreting legislation, the court must look to what was the mischief in the old law which the new legislation was aimed at and what solution the new legislation was intended to adopt: para 143.

He concluded that the Supreme Court of Canada has been critical of courts listing broad categories of statutes to be interpreted narrowly, thereby giving one class of litigant the benefit of every doubt: para 145. [ 68 ] The City also argues the time limits for challenging decisions of a municipal council are fundamental to the efficient functioning of municipal governments; that their purpose is to ensure there is not an unlimited availability for the public to challenge validly made decisions of a municipal council; that to do otherwise would put municipalities at risk of never being able to fully implement their decisions without facing significant financial consequences and legal exposure for doing so.

Use of Extrinsic Evidence - Affidavits [ 69 ] It is common ground that pursuant to the Alberta Rules of Court , Rule 3.22, the court may allow before the court, in addition to the record of proceedings of the person or body that is the subject of the application, anything permitted by any other rule, or by an enactment, and any other evidence permitted by the court. [ 70 ] Here, the City urges that I consider an Affidavit of Dianne Trenn, Vice-President of Airport Operations of the Edmonton Regional Airports’ Authority (the “Airports’ Authority”), as well as the Affidavit of Rick Daviss, Manager of Corporate Properties for the City of Edmonton, not for the purpose of reviewing the merits of the decision but rather to assist the Court in understanding the “mischief” the 60 day time limit seeks to address and to provide the Court with context for determining whether it should exercise its discretion regarding the remedies requested. [ 71 ] The City points out that the remedies formerly referred to as prerogative remedies and asked for here, namely a declaration and mandamus, are all discretionary in nature.

When pressed during oral argument, however, as to what discretion the Court had in determining the correct or reasonable statutory

interpretation of s.233(2) of the MGA , the City was unable to satisfactorily answer the question.

Indeed, I find that I do not have discretion in the sense referred to by the authorities cited by the City, including Jones and deVillars, Principles of Administrative Law , 5 th ed. (Toronto: Carswell, 2009) at page 596. [ 72 ] But the presence or absence of discretion is not the same as admitting evidence for context or to demonstrate that the mischief feared as a matter of policy or reason for a limitation period has or has not materialized. [ 73 ] In Report #55, entitled “Limitations” by the Alberta Law Reform Institute, December 1989, it is indicated that in a conventional limitations system, the objective is to encourage the timely resolution of controversies.

Three main reasons are cited, first, the evidentiary issues of stale evidence or fallible memories. The second is based on “peace and repose”, meaning that potential defendants are entitled to have a legal issue resolved in a timely manner freed from stale conflicts: page 17. And the third reason is entitled “ Economic Reasons ”. At page 17 it is stated: Where a Defendant is vulnerable to a possible liability of uncertain magnitude under a claim, his ability to enter into business transactions may be adversely affected.

If the Defendant’s potential liability is significant, he may be reluctant to make new business commitments until the legal issues are resolved. ... [ 74 ] The report concludes at page 18, still under the heading “ Economic Reasons” : In short, limitations law encourages potential defendants to make considered business decisions without having the spectre of future claims loom past a reasonable date and this further allows actuarial risk to be calculated so that a potential defendant can take steps to

ensure an enterprise against possible claims as well as make the most beneficial or socially useful allegation of the enterprise asresources. [75] In oral argument, I indicated that I would consider the Applicants’ opposition to my looking at the Affidavits of Trenn andDaviss, and that if I did look at them and if I determined that they were relevant and material to this application, I would so state in myreasons. I have looked at the Affidavits together with the Cross-Examination and Answers to Undertakings by Trenn.

Trenn’s Affidavitdeposes that the Airports’ Authority has operated the Edmonton City Centre Airport from 1996 to the present and now also operates theEdmonton International Airport and others. [76] It details what the Airports’ Authority has done since the passing of the July 8th, 2009 Resolution and includes a statementthat runway 16-34 at the Centre Airport has been closed; that it would require an investment of seven to 10 million dollars in order torehabilitate the runway surface.

It also references the uncertainty that would be created in the event a plebiscite were held to pass theproposed new bylaw; it further details that the Airports’ Authority has committed a 20 million dollar investment in land servicing at theInternational Airport to accelerate options for transitioning the City Centre Airport tenants to that location. [77] Some of the statements of Trenn were arguably diluted in the questioning on the Affidavit by the Applicants’ counsel.

One ofthe undertakings resulted in the production of an Amending Agreement made between the City and the Airports’ Authority dealing with“the initial partial surrender of the demised premises ie. the City Centre Airport lands as the result of the July 8, 2009 Resolution.” Thisdocument contained a covenant by the Airports’ Authority to have closed runway 16-34 prior to August 4, 2010, the initial partialsurrender date. Of the 20 million dollars referred to in paragraph 3(

a) of the Trenn Affidavit, in an undertaking response, it was statedthat approximately fourteen million dollars was spent by June 2010. [78] The Affidavit of Rick Daviss, Manager of Corporate Properties with the Asset Management and Public Works Department of the City detailed a number of events that occurred as the result of the passing of the July 8th, 2009 Resolution, including the fact thatrunway 16-34 was closed in early August 2010 and the lands used for the runway and some of the surrounding lands were surrenderedback to the City. [79] I find that these Affidavits and the questioning and undertakings given by Trenn on her Affidavit, contain no relevant andmaterial information to the court’s determination of this application other than to demonstrate, as put forward by the City, the mischief,in terms of policy, that the limitation provisions are calculated to prevent.

Arguably, that mischief has materialized in this case, if there isno applicable limitation period. [80] I am quick to point out, however, that my decision on the proper

interpretation of s. 233(2) would be the same even if nothinghad been done by the City to implement the July 2009 Resolution. The policy behind the limitations

section would remain the same: toinject certainty into the business and economic affairs of the City and any entity or person affected by decisions of City Council, whetherby resolution or bylaw, so that they might plan and execute plans affecting the daily lives of citizens and entities after a certain timewithout a concern for an attack on those decisions giving rise to significant repercussions were they to be undone. Correctness and Reasonableness [81] Applying the modern approach to statutory

interpretation as articulated above to the question of law to be considered, I findthat a correct statement of law is that the Applicants’ Petition is barred by s. 233(2) of the MGA because it was not filed within 60 daysof the July 8, 2009 Resolution. As was pointed out by the Applicants’ counsel, there is nothing in Hansard that would shed any light onthe reasons for the different wording, when one considers the legislative history, with the apparent excising of the words “will have theeffect of repealing, amending or suspending an existing bylaw or resolution”. The import of the

section is the same. Were it different, anotherwise sufficient petition for a “new” bylaw would never by subject to any limitation, contained in s. 233(2). All the electors wouldneed to do is to state, as they have done here: “we are not asking for bylaw to amend or repeal a bylaw or resolution; we want a newbylaw”. Were that to be the law, there would be legislative and decision making chaos at City Hall. [82] In another case from Alberta, the Supreme Court of Canada interpreted the MGA, as opposed to the old MGA, in United TaxiDrivers’ Fellowship of Southern Alberta v.

Calgary (City), 2004 SCC 19 , [2004] 1 S.C.R. 485. The court was called upon toconsider, on a standard of review of correctness, whether the City of Calgary had jurisdiction to freeze the issuance of taxi plate licences.The old MGA contained specific provisions to regulate taxi plate licences. The new MGA did not expressly specify that power. Indelivering the decision of the court, Bastarache, J., cast the modern approach to the

interpretation of municipal legislation as being “a

broad and purposive approach”: para 8. He indicated that there has been a shift in legislative drafting to reflect the true nature of modern municipalities which require greater flexibility in fulfilling their statutory purposes: para 6. Although this case was concerned with a matter of “true” jurisdiction as characterized by Dunsmuir , the approach to statutory

interpretation is consistent with Bowes in a municipal context. [ 83 ] But, I go further, in the event this matter might be reviewed by others. The proper standard of review to be applied in this case is not correctness; it is reasonableness. That is so because applying the four Pushpanathan factors as recast in Dunsmuir , I am driven to the conclusion that it was intended that the decision maker, i.e., the City Clerk as the delegate of the Chief Administrative Officer, was interpreting her enabling or home statute. In fulfilling that function, that office was endowed with expertise for that purpose.

Moreover, the question of law at issue does not involve any of the excluded categories in Dunsmuir or Smith . Like Fish, J. in Smith , I find that the decision maker here, construing her home or enabling statute in an area where expertise is expected and no excluded category is engaged, demands a standard of review of reasonableness. [ 84 ] It follows that if the correct

interpretation is that the Petition is barred by s. 233(2) , a reasonable

interpretation to that effect is all the more supportable. In other words, returning to Dunsmuir , at para 47 , even if there were a number of possible, reasonable conclusions in the

interpretation of 233(2) including the one urged upon me by the Applicants, the City’s

interpretation would prevail because each decision would fall within a range or possible, acceptable outcomes which would be defensible in respect of the facts and law.

CONCLUSION [ 85 ] Whether the Applicant was required to submit its Petition within 60 days of the July 9 th , 2009 Resolution is an extricable question of law. [ 86 ] Having characterized the issue as a question of law, the proper standard of review in this case is reasonableness because the decision maker was interpreting her home or enabling statute, was endowed with functional expertise and was not considering an issue from any recognized excluded categories. [ 87 ] As a matter of correctness, the modern approach to statutory

interpretation of the MGA , contextual and purposive, mandates a determination that s. 233(2) of the MGA , in this case, on these facts, applies to bar the Petition as insufficient because it was not filed in time. [ 88 ] The decision maker’s decision was correct as a matter of law. Therefore, on a standard of review of reasonableness, it follows that it is in the range of reasonable outcomes. [ 89 ] Therefore, the application for judicial review is dismissed. COSTS [ 90 ] Costs may be spoken to if counsel cannot come to an agreement. Heard on the 10 th day of February, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of March, 2011.

C.J.C.Q.B.A. Appearances: J.A. Agrios, Q.C. for the Applicants K. Fallis-Howell D. Lopushinsky for the Respondent