Envision Edmonton Opportunities Society v. Edmonton (City), 2011 ABQB 29

Court of Queen ’ s Bench of Alberta Citation: Envision Edmonton Opportunities Society v. Edmonton (City), 2011 ABQB 29 Date: 20110119 Docket: 1003 16883 Registry: Edmonton 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 (Respondent’s) - and - The City of Edmonton Respondent (Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A.B. Moen _______________________________________________________

Table of Contents I. Introduction.............................................................................................................. Page: 3 II. Discussion.............................................................................................................. Page: 4 A. Should the question with respect to limitations be answered first and independently of the question with respect to the sufficiency of the signatures on the Petition? Page: 4 1. Does Rule 7.1(1)(

a) merely codify judicial

interpretation of Rule 221, or does it change the law? .......................................................................................... Page: 5 2. Should Rule 7.1(1)(

a) be read in conjunction with Rule 1.2, and if so, what is the effect of doing so?........................................................................................ Page: 8 3. Does the “exceptional case” test still apply to Rule 7.1(1)(a)? If not, what test should apply? ......................................................................................... Page: 10 B. In the circumstances of this case, should the Court sever the limitations question? Page: 13 1. Rule 7.1(1)(

a) Analysis................................................................ Page: 14 a. Would an order severing the limitation question dispose of all or part of the judicial review?................................................................. Page: 15 b. Would an order severing the First Question substantially shorten the hearing?.............................................................. ................................................................... Page: 16 c.

Would an order severing the First Question save the parties expense?........................................................................................... Page: 16 d. Conclusion........................................................................ Page: 17 2. Rule 1.2 Analysis......................................................................... Page: 17 a. Timeliness........................................................................ Page: 19 b. Cost-effectiveness........................................................... Page: 20 c. Fairness and justice and proportionality.......................

Page: 20

d. Conclusion........................................................................ Page: 22 III. Conclusion............................................................................................................ Page: 23 I. Introduction [ 1 ] This is an application by the City of Edmonton (“the City”) to sever one of two questions in a judicial review of the City’s decision to reject a petition presented to it on August 26, 2010. The judicial review is scheduled to come before the court on February 10, 2011. [ 2 ] The subject matter of the petition is the Edmonton City Centre Airport (“the Airport”).

In July 2009 the City of Edmonton passed a bylaw for the staged closure of the Airport. Subsequently, Envision Edmonton Opportunities Society (“Envision”) [1] circulated a petition demanding that the City keep the Airport open as a general aviation airport, that the City promote the operations of the Airport as a general aviation airport and that the City retain the existing Airport infrastructure (“the Petition”). [ 3 ] The City Clerk reviewed the Petition and rejected it on two grounds: 1.

The Petition was filed outside the time limits specified in section 233(2) of the Municipal Government Act , R.S.A. 2000, c. M-26 (“ MGA ”); and 2.

The Petition was not signed by the required number of electors. [ 4 ] Envision challenges both of these grounds for rejection of its Petition and applies for mandamus, requiring the City to cause a bylaw dealing with the subject matter of the Petition to be prepared and given first reading, and to fix an election date for the vote on the bylaw by the electors. [ 5 ] In addition, Envision demands that the City provide all documentation in its power or possession that relates to the Petition, including the City’s exception report and the working copy of the Petition on which excluded signatures are noted. [ 6 ] There are two distinct questions that must be answered in the judicial review: 1.

Was the Petition out of time? Does the limitation period set out in the Municipal Government Act even apply in the circumstances of this case? (“The First Question.”) 2. Was the Petition sufficient in meeting the requirements of sections 222 to 226 of the Municipal Government Act with respect to the numbers of petitioners, the form and content of the Petition and the other legal requirements that are set out therein? (“The Second Question.”) [ 7 ] The City applies to have the First Question severed and heard first.

It argues that the issues pertaining to the Second Question about the sufficiency of the signatures on the Petition are more complex and require a significant and expensive production of documents (the “Record”). It says that if the decision with respect to time limits is confirmed and Envision is out of time, the Court, the

City and Envision can avoid the considerable time and expense of dealing with the Second Question. [ 8 ] The new Alberta Rules of Court , Alta. Reg. 124/2010 (“New Rules”), which came into force on November 1, 2010, apply at the date of the severance application. The question is whether the New Rules change the law with respect to severance, such that a new test should apply to whether severance should be granted in this case. [ 9 ] The issues to be determined in this application are: 1.

Should the question with respect to limitations be answered first and independently of the question with respect to the sufficiency of the signatures on the Petition? 2. What directions should be given to the City with respect to its production of a Record respecting each of these questions? II. Discussion A. Should the question with respect to limitations be answered first and independently of the question with respect to the sufficiency of the signatures on the Petition? [ 10 ] The City applies to have the First Question severed from the Second Question before the judicial review court.

The First Question has to do with whether Envision was out of time when it presented its Petition to the City in August 2010. The City will argue that the bylaw demanded in the Petition falls under s. 233(2) of the MGA and that, as a result, Envision was out of time in presenting the Petition. The bylaw in question passed by the City of Edmonton in 2009 established a staged closing of the Airport. Envision opposes this closing. [ 11 ] Envision takes a different view of the First Question, stating that its Petition demands a completely separate bylaw from the one passed by the City in 2009.

It says that it is therefore not bound by the limitation period. Those questions, of course, are before the judicial review court and not before me. However, my decision with respect to severance takes into account both aspects of the First Question.

The First Question before the judicial review court must include whether that limitation period applies at all. [ 12 ] In deciding the question of severance, I must consider the question of whether the applicable test for severance has changed under the New Rules , or whether the test remains the “exceptional case” test applicable under Rule 221 of the Alberta Rules of Court , Alta. Reg. 390/1968 (the “Old Rules”).

Both the City and Envision submit that the applicable test of severance under the New Rules is substantially the same as the test under the Old Rules, with the New Rule simply codifying the case law developed under the Old Rule. The City says that it satisfies the “exceptional case” test. Envision says it does not. [ 13 ] The issues that apply to my analysis of this question are: 1. Does Rule 7.1(1)(

a) merely codify judicial

interpretation of Rule 221, or does it change the law? 2. Should Rule 7.1(1)(

a) be read in conjunction with Rule 1.2, and if so, what is the effect of doing so? 3. Does the “exceptional case” test still apply to Rule 7.1(1)(a)? If not, what test should apply? 4. In the circumstances of this case, should the Court sever the limitations question ? 1. Does Rule 7.1(1)(

a) merely codify judicial

interpretation of Rule 221, or does it change the law?

[14] For the reasons set out herein, I disagree with counsel that the New Rule simply embodies the existing law developed underthe Old Rule. [15] Before the Rules changed in November 2010, it was very difficult to get an order severing an issue from a matter or a trial.The Rule that applied was Rule 221(1): 221 (1)The court may order any question or issue arising in a proceeding whether of fact or law or partly fact and partly law to be triedbefore, at or after the trial and may give direction as to the manner in which the question or issue is to be stated, and may direct anypending application to be stayed until the question or issue has been determined. [16] There is no doubt that Rule 221 is no longer applicable.

The Old Rules were repealed by Rule 15.14(1) of the New Rules.Under s. 5(2) of the

Interpretation Act, R.S.A. 2000, c. I-8, repeal results in the Old Rules ceasing to have effect. [17] The question, however, is whether Rule 7.1(1)(

a) is a substantive change to Rule 221, or merely a formal change. [18] Canons of

interpretation establish that where the legislature sees fit to amend a statute, they do so for a reason. As McLachlinC.J. stated in Marche v. Halifax Insurance Co., 2005 SCC 6, [2005] 1 S.C.R. 47 at para. 25, “The guiding rule of

interpretation, asmentioned, is that legislative change is made for a purpose.” [19] This does not settle the question, however. As noted by Ruth Sullivan in Sullivan on the Construction of Statutes, 5th ed.(Canada: LexisNexis Canada Inc., 2008) at 583, amendments may have a purely formal purpose. This includes confirming judicialinterpretation, as counsel argues here. It also includes eliminating inconsistencies, correcting drafting areas or improving the style oflegislation. [20] The law presumes that the legislature intends a substantive amendment. As Laskin J. stated in Bathurst Paper Ltd. v.

NewBrunswick (Minister of Municipal Affairs), (SCC), [1972] S.C.R. 471 at 477, Legislative changes may reasonably be viewed as purposive, unless there is internal or admissible external evidence to show that onlylanguage polishing was intended. The submission of the appellant would have it that the amendment in 1968 accomplished nothing ofsubstance, but merely improved the drafting. This is, in my opinion, an untenable position. Or, as stated succinctly by Bensler J. in Akita Drilling Ltd. v.

Alberta (Workers Compensation Appeals Commission), 2003 ABQB1030, 351 A.R. 230, at para. 28, “When the law is dictated by statute, then an alteration in the statute results in an alteration in the law.” [21] Here, counsel have not introduced external evidence.

However, evidence of legislative intention may be inferred from thechange in the provision in question, as well as the New Rules as a whole. [22] The wording of the Old Rule and New Rule is different: Old Rule: 221(1) The court may order any question or issue arising in a proceeding whether of fact or law or partly fact and partly law to be triedbefore, at or after the trial and may give direction as to the manner in which the question or issue is to be stated, and may direct anypending application to be stayed until the question or issue has been determined.

New Rule: 7.1(1) On application, the Court may (

a) order a question or an issue to be heard or tried before, at or after a trial for the purpose of (

i) disposing of all or part of a claim, (ii) substantially shortening a trial, or (iii) saving expense, [23] One big change between the Old and New Rules is that the New Rules add grounds for severance, while the Old Rulesauthorized the Court to grant severance without setting out the specific grounds.

The grounds under Rule 221 have been developed bythe courts. [24] The Respondent’s contention is the introduction of grounds for severance is merely a codification of the common law testinterpreting Rule 221. [25] Jurisprudence interpreting Rule 221 concluded that a trial should be split only in “exceptional cases”: Esso ResourcesCanada Ltd. v. Stearns Catalytic Ltd. et. al. (1991), 1991 ABCA 48 , 114 A.R. 27 (C.A.) at para. 11. The “exceptional case”test was further developed in Tanguay v. Vincent, 1999 ABQB 814, 75 Alta L.R. (3d) 90 and Ratcliffe v.

Nakonechny, 2003 ABQB 667, 23 Alta L.R. (4th) 21. [26] The City cites the factors in Esso Resources as follows: 1. Will the issues be easily severable? 2. Will the severance end the matter or potentially end the matter if decided in on way? 3. Will time or money be saved? [27] Five factors were laid out in Ratcliffe summarizing Tanquay to be considered in an application to sever: 1. Will it end the suit, at least if decided one way? 2. Will there be a saving in time or money spent on litigation, again at least if decided one way? 3. Will it create an injustice? 4. Are the issues complex or difficult? 5.

Will it result in a delay in the trial? [28] The common law test of severance under Rule 221 bears some resemblance to the codification set out in Rule 7.1(1)(a), butthey are not identical. Both tests are permissive, giving the judge discretion to grant severance. Both tests require consideration of thefactors of whether a decision on a severed issue will end the suit; whether it will shorten the trial; and whether it will save expense. [29] There are also differences, however. Rule 7.1(1)(

a) adds the ground, under Rule 7.1(1)(a), of whether it will end part of theclaim. Rule 7.1(1)(

a) omits the factors of whether it will create an injustice; whether the issues are complex or difficult; and whether itwill result in a delay in the trial. On the last point, I would note that the factor of a delay in the trial deals with the question of the timespent waiting for a hearing, rather than the time spent actually in hearing a trial, a stated ground under Rule 7.1(1)(a)(ii).

[30] The test under Rule 221 is a consideration and balancing of factors. It is notable that Rule 7.1(1)(

a) sets out separate groundsfor severance (using “or”). It appears that satisfaction of any one of the grounds may be sufficient to grant severance. [31] The City argues that in considering the question of whether the New Rule is simply a codification of the Old Rule as it hasbeen judicially considered, we must take into account not only the language of the New Rule but we must add the language in theFoundational Rules (Part 1). Put together, the City submits, the tests set out in Esso Resources and Ratcliffe are met. I reject this“addition”

interpretation which will become clear in my discussion of the Foundational Rules. [32] The differences between the Old Rule and the New Rule are, therefore, too stark to find that Rule 7.1(1)(

a) is astraightforward codification of the Rule 221 “exceptional case” test. The introduction of Rule 7.1(1)(

a) requires that the Court take afresh look at when severance may be granted, particularly in light of the Foundational Rules. [33] The New Rules, in my view, invite us to review the old test of an “exceptional case.” 2. Should Rule 7.1(1)(

a) be read in conjunction with Rule 1.2, and if so, what is the effect of doing so? [34] Do the Foundational Rules require the court to view the severance Rule in a different light? [35] The New Rules introduce Rule 1.2 under the broad heading, “Foundational Rules” and the more specific heading “Purposeand Intention of These Rules.” This is a new concept. I set out the whole of that Rule in an appendix at the end of these reasons. [36] Rule 1.2 is termed a “purpose statement” by writers on statutory construction. For example, see Sullivan at 387. [37] Purpose statements have been compared to

preambles in that both are seen as interpretive aids which establish the context andpurpose of the statute to which they apply. As LaForest J. stated, “an interpretative provision [is] in the nature of a

preamble announcingthe general framework and philosophy of the legislation.”: LeBlanc v. LeBlanc, (SCC), [1988] 1 S.C.R. 217 at para. 9. [38] In Alberta,

preambles are treated as a binding part of the statute under s. 12(1) of the

Interpretation Act, R.S.A. 2000, c. I-8,which sets out that “the

preamble of an enactment is part of the enactment intended to assist in explaining the enactment.” TheInterpretation Act is silent on the effect of purpose statements. However, as noted by Sullivan at 387-88, purpose statements come afterthe enacting clause of a statute and thus have the force of law without the benefit of the

Interpretation Act. [39] A substantive enactment must be interpreted in such a way as to give effect to a purpose statement. In LeBlanc at para. 10, theSupreme Court treated a purpose statement as binding in its

interpretation and application of New Brunswick’s Marital Property Act. [40] The Supreme Court has held that differences in the purpose statements between old and new versions of the statute arelegislatively meaningful: Medovarski v.

Canada (Minister of Citizenship and Immigration), 2005 SCC 51 , [2005] 2 S.C.R.539 at para. 10. [41] In Medovarski the appellants, who were fighting deportation orders following their criminal convictions, had argued that thetransitional provisions of the newly enacted Immigration and Refugee Protection Act (“IRPA”) should be interpreted in such a way as toallow them to claim rights of appeal available under the old Immigration Act. The Court dismissed the appeal, finding that such rights ofappeal were no longer available under the new IRPA.

The Court noted that its decision was consistent with the purpose statement of thenew Act, which stressed the importance of security. This was a change from the predecessor statute which “emphasized the successfulintegration of applicants more than security”: at para. 10. [42] As stated in Medovarski at para. 10, a purpose statement may be used to signal a change in direction of the law. Where

purpose statements contain multiple principles or purposes, those principles are to be balanced and applied as required by the context: R.v. T. (V.), (SCC), [1992] 1 S.C.R. 749 at 765-67. [43] In B.C., where there is a rule governing severance of issues, there is also a purpose statement in its rules of procedure. There,the Court found that the scope of the court’s discretion in interpreting the substantive provision must be interpreted in light of the overallobject embodied in the purpose statement: Emtwo Properties Inc. v.

Cineplex (Western Canada) Inc., 2009 BCSC 1592 at para. 13. [44] The introduction in the New Rules of Rule 1.2, which has no comparable in the Old Rules, means that the Court mustconsider each of the substantive enactments in light of the principles set out in Rule 1.2. Rule 7.1(1)(

a) must, therefore, be interpreted insuch a way as to give effect to these principles and is consistent with the purposes set out in Rule 1.2. [45] Rule 1.2(1) stresses just, fair, timely and inexpensive resolution of issues. Rule 1.2(2)(

a) states that the New Rules should beused to “identify the real issues in dispute,” while Rule 1.2(2)(

b) states the Rules should be used to “facilitate the quickest means ofresolving a claim at the least expense. Rule 1.2(4) inserts a proportionality requirement, stating that a Court in exercising its discretionmust do so in a “remedy or sanction proportional to the reason for granting” it. [46] Under the Old Rule 221, the courts have held that severance must be denied if there is any potential for injustice, regardlessof the outcome of the exceptional case test. As stated at para. 46 of Murphy Oil Co. v.

Predator Corp., 2002 ABQB 629, 319 A.R. 328,“prejudice or injustice, if demonstrated even to a modest degree, should always outweigh considerations of expediency andconvenience.” Under the old law, then, prejudice or injustice trumped considerations of timeliness and, one could argue, prejudice andinjustice was set up as in opposition to timeliness. [47] Under the Foundational Rule of the New Rules, Rule 1.2, however, timeliness and cost-effectiveness is put front and centrealongside the need for a fair and just result.

In my opinion, the Legislature in enacting Rule 1.2 is signalling the need to considertimeliness and cost-effectiveness in conjunction with the need for fairness and justice. I would go even further, and say that Rule 1.2recognizes that a result, to be fair and just, must also be timely and cost-effective. This makes perfect sense in light of the seeminglyinexorable trend toward longer and more expensive trials which put access to the courts out of reach of more and more people. Theordinary citizen in this day and age is hard-pressed to afford a long trial. [48] As a result, I would say that Rule 7.1(1)(

a) must be read in light of Rule 1.2. The effect of doing so signals that the courtshould be more willing to grant remedies with the potential to provide a more timely and cost-effective result without sacrificing fairnessand justice. If the court can narrow the focus of a trial and do away with the necessity for a long trial without sacrificing fairness orjustice, it should do so, recognizing that providing litigants with a timely and cost-effective result serves the ends of justice. 3. Does the “exceptional case” test still apply to Rule 7.1(1)(a)?

If not, what test should apply? [49] Prior to the enactment of the New Rules, the applicable test in Alberta under Rule 221 was the “exceptional case” test: EssoResources. Has that test now been superseded by Rule 7.1(1)(

a) and the Foundational Rules under the New Rules? [50] Applications for severance were uphill battles under the exceptional case test applicable under the Old Rule 221. A review ofthe case law suggests that the courts were reluctant to grant severance absent a virtual guarantee that the severed question would bring anend to litigation, or at least not delay it in any way. As a result, the likelihood of an appeal was a significant factor militating againstseverance. For example, see my own decision in Ratcliffe at paras. 51-52; Kwinter v. Metrowest Developments Ltd., 2007 ABQB 713, 85 Alta.

L.R. (4th) 219 at para. 55; and Robinson v. Terra Nova Shoes Ltd., 2005 ABQB 187, where Watson J. (as he then was) grantedseverance of liability and quantum conditional on the trial for quantum continuing as scheduled, regardless of whether there was anappeal. [51] While there was the occasional grant of severance, as in Turner v. Doe, 2005 ABQB 932, the exceptional case test as appliedin Alberta led to more frequent denials. See for example, Kwinter, Fattah v. Alberta (Motor Vehicle Accident Claims Act, Administrator), 2005 ABQB 604; Weatherford Canada Partnership v. Addie, 2009 ABQB 538, 14 Alta.

L.R. (5th) 98; Inland ConcreteLtd. v. Commonwealth Insurance Co., 2008 ABQB 297, 71 C.L.R. (3d) 263; and Dreco Energy Services Ltd. v. Wenzel, 2004 ABQB842, 365 A.R. 135. Of course, each case turns on its particular facts, and I raise these cases only to observe that severance was not a

readily available remedy. [52] As I set out above, the effect of the New Rules, Rule 7.1(1)(

a) and Rule 1.2, are intended to force a shift to greater willingnesson the part of the courts to grant remedies that will lead to more timely and cost-effective results. [53] I find that the “exceptional case” test, as applied in Alberta, is not consistent with the New Rules. Approaching the analysisfrom the perspective that severance is available only in exceptional cases leads to the court focusing on finding reasons for not severing. [54] The wording of the New Rules, however, suggests that the focus should in fact be on finding reasons to sever.

Rule 7.1(1)(a)sets out grounds to grant severance, rather than factors or grounds to deny severance. The suggestion is that where those grounds, or anyone of them, are sufficiently strong, the court should grant severance. This reading is consistent with the purposes set out in theFoundational Rule, which stress timely and cost-effective justice. [55] This raises the question of what test should apply, if the “exceptional case” test no longer applies. [56] Canadian jurisprudence has recognized two general tests in Canada. One is the “exceptional case” test.

The other is the “justand convenient” test, which was set out by Lord Denning in Coenen v. Payne, [1974] 2 All E.R. 1109 at 1112. [57] On first blush, the “exceptional case” appears to be the dominant test across Canada. For example, the phrase “exceptionalcase” has been adopted in B.C. and Newfoundland and Labrador, which, like Alberta, have an express rule governing severed trials:Emtwo Properties Inc. v. Cineplex (Western Canada) Inc., 2009 BCSC 1592 at para. 15 and Kirby v.

Raman, 2009 NLTD 22, 285Nfld. & P.E.I.R. 263 at para. 40. [58] Courts in Ontario, Saskatchewan and Manitoba, where the authority to sever is founded on inherent jurisdiction rather than anexpress rule, also refer to the “exceptional case”: Elcano Acceptance Ltd. et. al. v. Richmond, (1986), (ON CA), 55O.R. (2d) 56 (C.A.); 101055204 Saskatchewan Ltd. v. Wolff, 2008 SKQB 301 at para. 10; and Canadian National Railway Co. v.Huntingdon Real Estate Investment Trust, 2009 MBQB 233, 244 Man. R. (2d) 69 at para. 10-14.

Those jurisdictions have not recentlyadopted new rules of court. [59] The seeming outlier is Nova Scotia, where the “just and convenient” test set out in Coenen v. Payne was adopted ininterpreting a rule similar to the Old Alberta Rule 221: Rajkhowa v. Watson and Maritime Medical Care Incorporated, 2000 NSCA 50.The “just and convenient” test was affirmed in Ocean v.

Economical Mutual Insurance Co., 2010 NSSC 314, 293 N.S.R. (2d) 387following Nova Scotia’s adoption of new rules. [60] The “just and convenient” test is generally seen as a more lenient test than the “exceptional case” test: Ratcliffe at para. 8 andHynes v. Westfair Foods Ltd., 2008 BCSC 637 at para. 33. This suggests that if the exceptional case test no longer applies, this courtshould adopt the “just and convenient” test. [61] I would reject this suggestion, however.

While the two tests have been held up in contrast to each other, in substance thedistinction between the two is blurred. [62] For example, while most jurisdictions refer to the “exceptional case” test, the jurisprudence shows that there is really no one“exceptional case” test. Rather, the

interpretation of what constitutes an “exceptional case” varies with jurisdiction and on a case-by-casebasis. The factors set out in Alberta under the “exceptional case” test are not applied with consistency across the nation, and are regularlyadded to and subtracted from, or replaced altogether. [63] For example, in the Saskatchewan case of 101055204 Saskatchewan Ltd., the court held at para. 15 that “severe prejudice”to the applicant is the main factor to be considered. This is not one of the listed factors under the Ratcliffe test.

[64] In addition, courts have conflated the two tests. For example, the Nova Scotia Court of Appeal, after accepting the “just andconvenient” test in Rajkhowa, then proceeded to approve four factors set out in Fraser et. al. v. Westminer Canada Ltd. (1998), (NS SC), 168 N.S.R. (2d) 84 (S.C.) for the application of the “just and convenient” test. Ironically, the first of the fourguideline factors set out in Fraser was whether the case is “an extraordinary and exceptional case.” [65] In Cayou v. Cayou, 2010 BCSC 1224, decided under B.C.’s new Supreme Court Civil Rules, B.C.

Reg. 168/2009, the BritishColumbia Supreme Court affirmed Emtwo, which had rejected the “just and convenient” test in favour of the “exceptional case” test.However, in applying the test for severance, the court in Cayou at para. 31 cited the factors set out in another B.C. case, Nguyen v.Bains, 2001 BCSC 1130, which stated that a grant of severance “is probably not restricted to extraordinary or exceptional cases.” [66] In light of the above, the words of Simonsen J. in Dmytriw (Next Friend of) v. Odim, 2008 MBQB 12, 226 Man. R. (2d) 284have some resonance.

As stated at para. 11: “In my view, regardless of what test is used, the considerations the courts have taken intoaccount are essentially the same.” [67] I believe that the terminology of the test – be it “just and convenient” or “exceptional case” – may be irrelevant under the newRule 7.1(1)(a). What should be considered are the grounds and considerations actually laid out in Rule 7.1(1)(a), interpreted through thelens of Rule 1.2.

While some factors are consistently relevant to the issue of severance, there is no defined list of which factors must beconsidered, and factors may be given less or more weight depending on the context of the case. [68] Rule 7.1(1)(

a) lays out three grounds for severance. These are: 1) disposing of all or part of a claim; 2) substantiallyshortening a trial; and 3) saving expense. A judge has discretion to grant severance based on any one or more of the grounds. [69] Rule 7.1(1)(

a) should also be interpreted in light of the purposes of the New Rules set out in Rule 1.2. Those purposesinclude: 1) under Rule 1.2(1), to provide a means by which the claim can be resolved fairly, justly and in a timely and cost-effective way;and 2) under Rule 1.2(2)(

b) and (c), to facilitate the quickest means of resolving the claim and encourage the parties to resolve the claimsby themselves. [70] The Court must also keep in mind the requirement of proportionality in granting a remedy under Rule 1.2(4). This requiresthe Court to balance all of the interests in each case. [71] I find that the “exceptional case” test is no longer the test in Alberta. Rather, the Court must view each application forseverance by first analyzing the three parts to the test in Rule 7.1(1)(a).

If one of those tests is answered affirmatively, then the Courtmust determine if a severance will meet the objectives of Rule 1.2. In carrying out the analysis, the Court must balance the ultimate goalsas expressed in the Foundational Rules and determine if the remedy of severance is proportional. [72] Therefore, with respect to Rule 7.1, I shall consider for the case before me whether the application by the City to sever thetwo questions meets the test set out in Rule 7.1(1)(a), and whether the result is consistent with the guiding principles set out in Rule 1.2. [73] The questions I must answer are: a.

Would an order severing the limitation question dispose of all or part of the judicial review? b. Alternatively, would an order severing the limitation question substantially shorten the hearing? c. Alternatively, would an order severing the limitation question save the parties expense?

d. Is my finding consistent with the guiding principles set out in Rule 1.2 ? B. In the circumstances of this case, should the Court sever the limitations question? [ 74 ] The correct analysis for answering this question is firstly to review the factors set out in Rule 7.1(1)(

a) to determine if any of the tests set out therein are applicable to this case. Second, if we find that this case meets one or more of the tests, then we must consider the effect of the Foundational Rules, Rule 1.2, on this case before we can make a final determination as to whether to sever. If the answers to the Rule 7.1(1) (

a) factors are negative, then we need not proceed to a Rule 1.2 analysis. 1. Rule 7.1(1)(

a) Analysis [ 75 ] As set out above, in answering a particular case concerning severance, the analysis is no longer that of an “exceptional case.” Rather, we must first analyse the three parts of the test set out in Rule 7.1(1)(a). [ 76 ] In this case, there are two questions on the judicial review that must be answered as set out above. The City applies for the severance of the two questions, asking that the First Question be heard by this Court first.

Further, the City submits that it should now be permitted to file a record only with respect to the First Question and that it be given a stay with respect to filing the Record on the Second Question until the First Question has been heard and only if the First Question is answered in the negative. [ 77 ] Envision opposes the severance of the First and Second Questions and demands that the whole record be produced immediately for both the questions. [ 78 ] Counsel for the City advised the Court that the Record with respect to the First Question would be small, approximately 24 pages long.

However, with respect to the Second Question, the Record is considerably larger and would take considerable time and expense to prepare. [ 79 ] The City advised this Court that it could not produce the Record for the Second Question before the scheduled judicial review on February 10, 2011.

If it is not successful on the severance application, the City will seek directions from the Court as to the timing of the filing of the Record and directions as to what has to be filed for the judicial review on the Second Question to be heard. [ 80 ] The evidence establishes that the original Petition consists of approximately 11,000 unnumbered pages. In addition, there is a photocopy of the original petition consisting of approximately 11,000 numbered pages. Data Entry Verification Reports filed with the photo copies of the original petition consist of approximately 15,000 pages.

There are comments associated with the Data Entry Verification Report currently contained within electronic data which, if printed, would be approximately 15,000 pages. The report outlining the process followed to determine the number of valid petitioners on the Petition is approximately 15 pages. Copies of the Petition pages that were provided to Banister Research & Consulting to carry out a random statistical sampling for their statistical analysis is approximately 1,800 pages.

Finally, the report from Banister Research & Consulting is approximately 20 pages. [ 81 ] With respect to the Second Question, the Banister Research & Consulting report and the report outlining the process together number 35 pages. However, all of the other pages would form the whole Record and could number approximately 54,000 pages. [ 82 ] Prior to producing the Record, the City will seek directions from the Court as to which pages and what information can be produced.

It says that there is personal information relating to the petitioners and personal information relating to individuals other than the petitioners on the Petition that should not be produced publicly. [ 83 ] Envision advises that it believes that the City does not have to produce in its Record all of the pages set out above. It is prepared to cooperate with the City and with the Court to identify those documents necessary for the Record.

[ 84 ] I turn now to each part of the three-part test set out in Rule 7.1(1)(a). a. Would an order severing the limitation question dispose of all or part of the judicial review? [ 85 ] The question here is whether severing the First Question would dispose of all or part of the judicial review. [ 86 ] This test is disjunctive. That is, to meet this first test it need only be demonstrated that part of a matter will be disposed of. It need not be the whole matter. [ 87 ] With respect to the First Question, Envision will argue that the limitation period does not apply.

This argument nevertheless goes to the question of the effect of the limitation period set out in the MGA at s. 233(2). [ 88 ] The First and Second Questions are distinct and separate issues with no overlap. Therefore, a hearing with respect to either issue would not prejudice the hearing on the other issue. However, a decision on the Second Question alone would inevitably lead to the necessity of answering the First Question. The opposite does not apply. An affirmative answer to the First Question disposes of the necessity of answering the Second Question.

A negative answer to the First Question would require the parties and the Court to proceed to answering the Second Question. [ 89 ] Further, an answer to the First Question, either negative or affirmative, completely disposes of that part of the judicial review, and it will not need to be revisited in any respect. If answered in the affirmative, that is, if the Petition is out of time, that answer will dispose of the whole of the judicial review. [ 90 ] Therefore, the answer to the first 7.1 test is: yes.

Severing the First Question will completely dispose of one issue in this judicial review and may dispose of the whole judicial review. b. Would an order severing the First Question substantially shorten the hearing? [ 91 ] Here I take the meaning of the

section to be that the hearing itself is shortened, not that the time to get to the hearing is shortened. [ 92 ] As with the question concerning resolving part of the judicial review, if the First Question is answered in the affirmative, it will shorten the hearing substantially because it will no longer be necessary to review the substantial Record for the Second Question. [ 93 ] If the First Question is answered in the negative, the whole hearing of both questions, even though separated in time, will take no longer than it would if both questions were heard at the same time.

In this case, the two questions are completely separate, requiring a different record for each question and requiring separate legal briefs for each question. [ 94 ] The answer to the second question, that is, would an order severing the First Question substantially shorten the hearing, is potentially yes. Although the answer is not certain for the whole of the judicial review, the Courts, both Queen’s Bench and the Court of Appeal, will deal with the First Question much more quickly than they would deal with both questions. The hearing on the First Question will be very short.

If it is necessary to hear the Second Question, the hearing will take no longer than it would have taken in the first instance. c. Would an order severing the First Question save the parties expense?

[ 95 ] Clearly, as set out above, the cost of producing the record with respect to the First Question is considerably less than the cost of producing the Record for the Second Question. [ 96 ] It follows that an order severing the First Question will save the parties an expense in the short run because the cost of producing the record on that question is small. Production of about 25 pages is inexpensive.

Further, the cost of preparing argument on one issue is much less expensive to the parties. [ 97 ] If the City is successful on the First Question, it will not be necessary to prepare and file a very large, expensive Record. Envision will not have to go to the expense of reviewing that Record on the Second Question.

Neither party will have to go to the expense of preparing and arguing legal argument. [ 98 ] If the answer to the First Question is that Envision is not out of time (or is not bound by the MGA limitation period), then it will cost the parties no more to prepare for and argue the Second Question than it will if severance is not granted. [ 99 ] Therefore, the answer to the third question is: It will save the parties considerable expense if the answer to the First Question is in the affirmative. It will cost no more if the answer is in the negative. d. Conclusion [ 100 ] The language in Rule 7.1(1)(

a) is disjunctive, requiring the Court to find in favour of only one of the three grounds in order to exercise its discretion to order severance. I have found that severance will dispose of part of the judicial review. I have also found that there is a reasonable likelihood that severance will shorten the trial, and that severance will save time and expense. As a result, at least one of the tests in Rule 7.1(1)(

a) has been met, and the threshold has been met for me to exercise my discretion to sever the First Question from the Second Question. [ 101 ] This does not end the analysis. My conclusion on Rule 7.1(1)(

a) must now be considered in light of the Foundational Rules. 2. Rule 1.2 Analysis [ 102 ] Having considered the severance application in light of the tests set out in Rule 7.1(1)(a), and having found that prima facie severance can be granted under that Rule, I am now obliged to consider severance in light of the Foundational Rules. [ 103 ] The Foundational Rules require the court to consider a means by which this judicial review can be fairly and justly resolved by a court process in a timely and cost-effective way (Rule 1.2(1)). [ 104 ] In this analysis I must consider if overall a decision to sever is fair and just, taking into account and weighing and balancing the 7.1(1)(

a) factors with the factors of cost-effectiveness and timeliness. [ 105 ] Further, the Foundational Rules require the Court to do a proportionality analysis. That is, the Court must consider whether the remedy of severance is proportional to the impacts of such an order. Rule 1.2(4) states: 1.2(4) … when exercising a discretion to grant a remedy or impose a sanction , will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. [ 106 ] In other words, the Court must weigh and balance all of the relevant factors in order to achieve a fair and just result and the

result must be proportional to the reason for granting it. As set out above in R. v T.(V) , where there are a number of factors to consider, the court must consider and balance only those that apply to a particular case. [ 107 ] Rule 1.2(2) also sets out a number of intentions which must be considered in an analysis of any Rule in the New Rules. Here, the one factor of the five set out in Rule 1.2(2) that I consider as relevant is: 1.2(2)(b) “to facilitate the quickest means of resolving a claim at the least expense.” The other factors in Rule 1.2(1) do not apply in this case.

In particular, I note that the Foundational Rules place a heavy emphasis on the parties resolving their issues without resort to the courts. However, in the case before me, there is no possibility that the issues can be resolved between the parties. It is properly before the court. [ 108 ] A reading of the Foundational Rules reveals that the considerations under those Rules are much wider than the tests set out in Rule 7.1(1)(a). For example, the Foundational Rules, use the word “timely”.

This requires a consideration of more than the length of the hearing (as is contained in Rule 7.1(a)(ii)), but also a consideration of how quickly (timely) a question can be brought before the Court. In the tests set out in Rule 7.1(1)(a), the court must consider the hearing itself and whether that hearing will be shortened. Under the Foundational Rules, the Court must consider whether matters can be brought before the Court quickly and can be moved along to resolution quickly, whether by the parties or by the Court.

This is an issue of timeliness. [ 109 ] The Foundational Rules also use the word “cost-effective.” Here the Court must consider not only the cost-effectiveness for the parties, but also for the Court. This concept goes beyond expense.

It is essentially a cost-benefit analysis. [ 110 ] Finally, the Foundational Rules require that taking all factors into consideration, the result must be fair and just. [ 111 ] Therefore, an analysis under the Foundational Rules requires the Court to consider its decision on the application of any Rule taking into account any factors under Rule 1.2(2) that apply in a particular case and whether the result will be timely, cost-effective and just and fair. [ 112 ] I turn now to a discussion of each of timeliness and cost-effectiveness. a.

Timeliness [ 113 ] In this case, severing the First Question would enable a hearing to proceed on February 10, 2011 on that question. If the Second Question must be heard with the First Question, that February hearing could not proceed. In fact, it will take a very long time before any of the questions will be heard by the Court. [ 114 ] The City has not yet produced the Record for the Second Question and would be seeking an adjournment of the February 10, 2011 judicial review to do so.

In fact, if I decide that the two questions must proceed together, there will be an application by the City for an adjournment and for directions as to how it must produce the Record. Envision argues that the Record need not be 54,000 pages long and advised this Court that it would be prepared to discuss a reasonable compromise as to the production of the Record. I did not hear specifics as that question was not squarely before me. [ 115 ] We did not discuss the length of time that would be needed for the City to produce the Record, but it clearly will take a considerable amount of time.

Given the size of the Record, it will take appreciable time to produce the complete Record and then considerable time for the Court to hear the arguments and to decide as to whether the Clerk characterized each signature to the Petition fairly according to the law. I do not know at this time whether that will require the Court to look at every signature on 11,000 pages. The evidence establishes that it took 80 staff 20 days to review the Petition. However, the majority of the signatures are not at issue.

One can be certain that it will take more than one day for the Court to hear argument on the signatures that are contentious. [ 116 ] Given the small size of the record pertaining to the First Question and the nature of the question before the Court, the City can prepare the record for the First Question and the parties can prepare their written argument for that question in time for the February hearing. If the First Question is heard by this Court on February 10, 2011, it can be disposed of in a timely way, saving all parties time

and expense in preparing legal argument and reviewing the Record on the Second Question. [ 117 ] Envision opposes the severance of the First Question. It suggests that splitting the two questions will slow the process down because whichever of the City or Envision loses in the judicial review on the First Question, it will certainly appeal that issue to the Court of Appeal. If we are to consider time and expense, then Envision submits that whoever appeals will almost certainly apply to the Court of Queen's Bench for a stay of the decision pending the appeal.

I would note that the New Rules provide express authority to grant such a stay under Rule 7.1(1)(c). [ 118 ] Therefore, Envision submits that in totality there will be a delay in hearing the Second Question if it is to be heard at all. I agree there will be a delay. I discuss potential prejudice later in my remarks on fairness and justice if there is a severance. The delay is not easily quantified. First, the First Question can be heard at both judicial review and at appeal much more quickly given the small record and the simple facts involved. It is essentially a legal question.

Therefore, the judicial review and the appeal can proceed quickly. [ 119 ] On the other hand, if the two questions are heard together, there will be considerable time required to prepare the record and the arguments and for the hearings at both judicial review and appeal.

In totality, however, if both questions must be heard, severing the First Question will result in a delay of some kind. [ 120 ] The Respondent cites Esso Resources at para. 27 for the proposition that where the trial of the preliminary issue will not save any time or money unless the applicant wins that issue completely, the court should consider whether such a complete win is highly likely. [ 121 ] I would agree that the Court must consider the likelihood of a win. However, a review of the question and argument on the First Question demonstrates to this Court that the City has a prima facie case.

The Respondents admit that the Petition was filed outside of the 60-day deadline imposed by s. 233(2). They argue, however, that the Petition does not seek to amend or repeal a resolution or bylaw as required by s. 233(2), but rather seeks to have a new bylaw passed. The City argues that the Petition in substance seeks repeal of its Council resolution, regardless of the wording used. Without pre-determining the issue, I would find the City has an arguable case. b.

Cost-effectiveness [ 122 ] In this part of the analysis we are doing a cost/benefit analysis. [ 123 ] The second consideration under the Foundational Rules is whether a severance is cost-effective. As set out above, this consideration takes into account the parties and the Court. Here, if the First Question disposes of the matter, there will be a huge saving of expense, both for the parties and for the Court. In particular, the saving will be felt in the cost of production of the Record for the Second Question.

This additional cost will be felt through the appeal process as well. [ 124 ] If the First Question is answered in the negative, the cost of production of the Record will cost no more later than it would now. Nor will the cost of any appeal associated with it be more later than it is now. [ 125 ] Therefore, there is no prejudice to the City or Envision or the Court by having the First Question heard before the Record is produced for the Second Question. There may be a significant cost saving. c.

Fairness and justice and proportionality [ 126 ] The only remaining consideration is to look at this result from the perspective of whether it is fair and just (Rule 1.2(1)). In this part of the analysis, I must consider whether a severance will be fair and just taking into account timeliness, cost-effectiveness and proportionality.

[ 127 ] In this part of the analysis, I must consider if there is any prejudice to Envision by severing the questions. [ 128 ] I turn first to Envision’s concern about an appeal and its concern about the length of time it will take for a judicial review hearing and an appeal on the First Question. The argument about an appeal can be made in every case and if successful would certainly militate against a court ever deciding that an issue should be severed. Therefore, whether there will be an appeal should not prevail as the reason to deny severance. It should be factored into considerations of timeliness.

If it is disproportionate, it will be given more weight. [ 129 ] If the City loses on the First Question, it will appeal. Given the cost of the preparation of that Record both in time and expense, the City will certainly ask for a stay pending a hearing by the Court of Appeal of that question.

If the Court of Appeal agrees that Envision was not barred by the limitation period, then the City must certainly produce the Record because the Second Question then becomes a live issue. [ 130 ] Similarly, if Envision is unsuccessful on the First Question, it will appeal and the same considerations apply. [ 131 ] If the First Question is severed, an appeal on that question will be quick. The Appeal Books required will be small relative to the Second Question. The parties can file for and prepare for an appeal quickly.

Yes, there will be some time lost if we wait until the First Question is dealt with by the Court of Appeal before this Court directs production of the Record for the Second Question, if that becomes necessary. However, time will inevitably be lost waiting for argument on the Record and preparation of the Record for the Second Question if the questions are not severed . It is conceivable that the judicial review on the First Question, if severed, will be heard and decided before the City can prepare the Record for the Second Question.

Therefore, the parties could be well on their way to an appeal of the First Question before that Record was produced. [ 132 ] Envision also objects to the fact that it served, on October 5, 2010, a Notice which required the City to prepare and file a complete record of proceedings. The City has not complied with that notice. Envision submits that there will be an injustice created by the City not being required to produce its Record for the Second Question .

Apparently, prior to or at the time the Petition was submitted, the City represented that it would provide to representatives of Envision access to information concerning the analysis of the Petition. Envision says it would now be unjust to allow the City to renege on this commitment by severing the issues because severance will result in Envision being denied access to the documents relating to the validity of signatures on the Petition.

This will certainly be the case if the Court, both at the judicial review Court and at the Appeal Court, find that the Petition was time-limited and that Envision was out of time. However, if the City is not successful on the First Question, then Envision will be entitled to see the Record. At that time both parties, that is Envision and the City, will have an opportunity to make representation to the Court as to the content of the Record. [ 133 ] I simply do not understand Envision's position that it would be unjust for these reasons to sever the First Question.

Surely, Envision is only entitled to see the Record if there is an issue that must be decided by the Court pertaining to the Record for the Second Question. Further, if promises were made by the City to Envision, its failure to meet those promises is surely a matter for another forum.

If there are other reasons that Envision needs to see the Record, then there surely will be means other than this judicial review by which it can do so. [ 134 ] Therefore, I find no prejudice to Envision on this basis if the First Question is severed. [ 135 ] Finally, a review of the question and argument on the First Question has demonstrated to this Court that the City has a prima facie case. Without commenting on the likelihood of its success, it certainly does not appear to be a futile argument that Envision is out of time. [ 136 ] The question is, what prejudice is there if I sever the First Question?

Time will certainly be lost to the parties in waiting for the results of an appeal on the First Question. That time lost will most certainly be prejudicial to the City and its partners (for example, the Edmonton Regional Airport Authority) because they will be taking a risk in proceeding with implementation of the Bylaw where they expend funds. However, the delay cannot be prejudicial to Envision. They do not have any funds at stake. I have no evidence that a delay in hearing the Second Question will cause any hardship to Envision.

[ 137 ] We are balancing a quick judicial review and appeal on the First Question with a lengthy delay necessitated by the production of the Record on the Second Question, a lengthy hearing on judicial review and a certainly more lengthy appeal on the Second Question. Balancing the time that will be lost before hearing the Second Question against the saving of time and expense if the First Question is heard in February and the City is successful, I find that the balance favours severing the First Question. d.

Conclusion [ 138 ] I find that severing the First Question will enable the parties to expeditiously prepare for and have heard the First Question in a timely manner. The answer to the First Question in the affirmative will put an end to the judicial review, saving the parties and the court time and money. [ 139 ] I find that the requirement under the Foundational Rules to ensure a court process that is timely and cost-efficient is met by severing the First Question from the Second Question. [ 140 ] I can only find a potential delay in the hearing and appeal on the Second Question.

The cost will be no more now than it will be later to prepare for and argue the Second Question. On the other hand, balanced against the delay is the real possibility that the matter will be disposed of by a determination of the First Question, saving the parties and the Court time and money. [ 141 ] In this case, the production of the Record for the Second Question is expensive for the City. It is also potentially unnecessarily costly in terms of time for the Court if it must review that Record where it may not be necessary for a final determination of the matter.

If the City wins on the First Question and is upheld by the Court of Appeal, that will end the matter. In that event, the time and expense with respect to the judicial review will have been considerably lessened for all the parties involved and for the Court. This consideration is balanced against a delay in hearing the Second Question, but not any additional cost in hearing that question. [ 142 ] Therefore, it is fair and just to sever the First and Second Questions, having the First Question heard first. III.

Conclusion [ 143 ] I allow the application of the City of Edmonton to sever the issues before the Court on judicial review and find that Court will hear the First Question at the judicial review hearing scheduled for February 10, 2011. That question 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? [ 144 ] The answer to this question will necessitate the Court either quashing or upholding the decision of the City to reject the Petition, and declaring that the Petition either complies or does not comply with the requirements of the Municipal Government Act respecting time limitations. [ 145 ] I direct the City of Edmonton to file and serve its record on the First Question on or before January 24, 2011. [ 146 ] Envision is to file its argument on the First Question on or before January 28, 2011 and the City of Edmonton is to file its response on or before February 4, 2011. [ 147 ] The preparation of the Record with respect to the Second Question is stayed until considered again by the judicial review Court.

Heard on the 14 th day of January, 2011. Dated at the City of Edmonton, Alberta this 19th day of January, 2011. A.B. Moen J.C.Q.B.A. Appearances: Ms. K. Fallis-Howell for the Applicant, The City of Edmonton Ms. J. Agrios for the Respondent ’ s, Envision Edmonton Opportunities Society and Charles Allard APPENDIX “A” Foundational Rules Division 1 Purpose and Intention of These Rules What these rules do 1.1(1) These rules govern the practice and procedure in (

a) the Court of Queen’s Bench of Alberta, and

...

(2) These rules also govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer. Purpose and intention of these rules 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively.

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. [1] When I refer to Envision, I include the other Applicant, Charles Allard