Mammoet, 2013 ABQB 663

Court of Queen ’ s Bench of Alberta Citation: Mammoet 13220-33 Street NE Limited v. Edmonton (City), 2013 ABQB 663 Date: 20131108 Docket: 1203 15931 Registry: Edmonton Between: Mammoet 13220-33 Street NE Limited, Hustle Holdings Ltd., Kiewit Energy Canada Corp. Applicants - and - The City of Edmonton Respondent - and - Focus Equities Alberta Inc. Respondent by Order - and - The Minister of Justice and Solicitor General of Alberta Intervener _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________

I. Introduction [ 1 ] The City of Edmonton and Focus Equities Alberta Inc. seek

summary judgment against the applicants’ challenge to the validity of a municipal bylaw, amongst other things. For reasons which follow the applications for

summary judgment are dismissed. II. Background/issues [ 2 ] The respondents to

summary judgment are Mammoet 13220 – 33 Street NE Limited, Hustle Holdings Ltd. and Kiewit Energy Canada Corp. (“Mammoet/Kiewit”). Mammoet/Kiewit filed an originating application October 25, 2012. That originating application is now to be heard on the merits January 17, 2014. [ 3 ] At issue on

summary judgment is the validity of Edmonton bylaw 14380 (the “ARA Bylaw”). No one disagrees the ARA Bylaw on its face is within the city’s power to enact pursuant to ss. 648/649 of the Municipal Government Act RSA 2000 c. M-26 (“the MGA ”). Disputed is whether the ARA Bylaw complies in substance with its empowering legislation, that is to say, the Act and in particular with the Principles and Criteria for Off-Site Levies Regulation AR 48/2004 (the “ Regulation ”). [ 4 ]

Section 648 of the MGA deals with off-site levies. It allows the city to pass bylaws that impose and require payment of a levy in respect of land that is to be developed or subdivided, and of particular relevance here, for new or expanded roads required for or impacted by a subdivision or development.

Section 649 of the MGA requires that any such off-site levy bylaws set out the object of each levy and indicate how the amount of the levy is determined. A levy imposed by a bylaw passed pursuant to ss. 648/649 must apply the principles and criteria set out in the Regulation , s. 3 of which states: Principles and criteria specifically 3

(1) In determining the levy costs, the municipality is to retain the flexibility to negotiate the levy in good faith and in a manner that recognizes the unique or special circumstances of the municipality.

(2) There is to be full and open disclosure of all levy costs and payments.

(3) There is a shared responsibility between the municipality and developers for addressing and defining existing and future infrastructure requirements and all beneficiaries of development are to be given the opportunity to participate in the cost of providing and installing infrastructure in the municipality on an equitable basis related to the degree of benefit.

(4) Where necessary and practicable, the municipality is to coordinate infrastructure provisions and services with neighbouring municipalities.

(5) There is to be a correlation between the levy and the impacts of new development.

(6) The methodology for determining the levy is to be consistent across the municipality, while recognizing variations among infrastructure types.

(7) The method of calculation for the levy is to be clear.

(8) The information used to calculate the levy is to be kept current.

(9) The calculation of the levy is to include, but is not limited to, (

a) a description of the specific infrastructure facilities, (

b) a description of the benefiting areas (

c) supporting technical data and analysis, and (

d) estimated costs and mechanisms to address cost increases over time.

(10) Calculation of the levy is to be determined in consultation with affected landowners and developers.

(11) The levy is subject to annual reporting requirements. [ 5 ] Mammoet/Kiewit contend the ARA Bylaw is invalid on its face in part because it fails to comply with the requirements of the Regulation .

They say for example that nothing in the bylaw requires Edmonton to “negotiate” the levy as mandated in the Regulation , or at all; nothing in the bylaw requires that Edmonton take into account the “degree of benefit” to the party upon which a levy is assessed, or the cost of providing and installing infrastructure on an equitable basis; nothing in the bylaw requires that all beneficiaries of that infrastructure be given the “opportunity to participate” in those costs; and nothing in the bylaw requires that there “be a correlation between the levy and the impacts of new development”. [ 6 ] I did not hear Edmonton and Focus to deny that arguably the ARA Bylaw fails to comply with the Regulation .

And in the context of

summary judgment I am satisfied an arguable case exists that it does so fail. [ 7 ] I am strengthened in that conclusion by the decision of McIntyre J. in Keyland Development Corp. v. Cochrane (Town) 2007 ABQB 160 at paras. 24-25 . Keyland was cited favourably in Prairie Communities Development Corp. v. Okotoks (Town) 2011 ABCA 315 at paras. 58-70 . In each of these cases similar off-site levy bylaws were declared invalid on the basis they failed to comply in

whole or in part with the Regulation for reasons substantially like those raised here by Mammoet/Kiewit. Those outcomes alone satisfy the ‘arguable case’ test to defeat

summary judgment. [ 8 ] So Edmonton and Focus say little at this stage of the proceedings about the face-value validity of the ARA Bylaw. Instead they say any claims the bylaw is invalid are irrelevant because Mammoet/Kiewit missed a limitation period. Edmonton and Focus rely on Okotoks (Town) v. Foothills (Municipal District No. 31) 2013 ABCA 22 (“ Okotoks 2013 ”). They say Okotoks 2013 decided that a challenge even to the validity of a bylaw under s. 536 of the MGA is barred if not brought within six months of its enactment. [ 9 ]

Section 536 of the MGA provides that a person may apply to the Court of Queen’s Bench for a declaration by a bylaw or resolution is invalid. No limitation period is specified under that section. [ 10 ] The six month limitation period is found in Rule 3.15(2) of the Alberta Rules of Court. For our purposes it is indistinguishable from its predecessor Rule 753.11(1).

Rule 3.15(2) provides that: … an originating application for judicial review to set aside a decision or act of a persons or body must be filed and served within 6 months after the date of the decision or act… [ 11 ] Here the ARA Bylaw was enacted on October 1, 2006.

Edmonton and Focus say that following Okotoks 2013 any challenge to its very validity could be made only by April 1, 2007. (I pause to note that the challenges in both Keyland and Prairie Communities appear to have been brought within six months of the bylaws in question, although Keyland dealt with an expired two-month limitation period in s. 537 of the MGA ; in that case McIntyre J. refused to apply that limitation period to the bylaw validity challenge. Keyland was decided long before Okotoks 2013 .) [ 12 ] Edmonton and Focus say the Mammoet/Kiewit application is indistinguishable from Okotoks 2013 and as such

summary judgment should follow. [ 13 ] Edmonton and Focus deny notice matters either, relying on Athabasca Chipewyan First Nation v. Alberta (Minister of Energy 2011 ABCA 29 . [ 14 ] On March 14, 2007 Mammoet acquired certain lands subject to the ARA Bylaw. Earlier Mammoet was granted a development permit, on December 18, 2006. Some six years later, on December 23, 2012, Edmonton informed Mammoet of a $2,927,892 levy pursuant to the ARA Bylaw. [ 15 ] Kiewit acquired its lands in 2005, and obtained a major development permit on May 19, 2005.

Some seven years later, on April 25, 2012, Edmonton informed Kiewit of a $984,383 levy pursuant to the ARA Bylaw. [ 16 ] Mammoet/Kiewit say that before the apparent April 1, 2007 limitation expiry they did not know and could not have anticipated what levies would be imposed on them. They acknowledge they had a general awareness of the bylaw within the limitation period. But before April 1, 2007 they did not in the abstract scrutinize the bylaw to determine its validity.

Nor they argue should they have reasonably been expected to. [ 17 ] Mammoet/Kiewit say there are both legal and factual disputes here which suggest the merits hearing should proceed and

summary judgment thus be denied. Amongst the factual issues is whether one or both of Mammoet/Kiewit had standing to challenge the ARA bylaw within the limitation period. And whether it matters if that standing arose just weeks before the expiry of the limitation period.

And whether it is reasonable on the facts to expect a party saddled with a six-month limitation period to satisfy itself a law is not invalid before investing in land acquisition and/or development. [ 18 ] (For its part, Kiewit advances alternative arguments, for example that it applied in time in any event, assuming the limitation period began to run from the time of the levy in April, 2012, and that Edmonton had no authority to include its lands in the ARA Bylaw on the basis of ss. 648(1) (

a) and 648(4) of the MGA . As to the first alternative argument, Edmonton says Kiewit’s challenge in 2012 does not allow it to revisit the bylaw enacted in 2006. That may be, if for any reason the ARA Bylaw is applicable, or upheld – all of which will be determined on the merits application. As to the second alternative argument, Kiewit’s ss. 648(1) (

a) and 648(4) arguments were not seriously challenged by Edmonton or Focus in the applications before me. As such,

summary judgment on these alternative arguments is dismissed.) [ 19 ] When the levies were imposed in 2012, Mammoet/Kiewit brought the October 25, 2012 originating application. It has been adjourned from time to time. It is now to be heard on January 17, 2014, subject perhaps to any proceedings which may well follow the outcome of these unsuccessful

summary judgment applications. [ 20 ] The parties agree with the test for

summary judgment ( Murphy Oil Company Ltd. v. Predator Corporation Ltd. 2006 ABCA 69 at 24-25) particularly in the context of a limitation period ( Papaschase Indian Band No. 136 v. Canada (Attorney General) 2009 SCC 14 at paras. 10-12 : there must be no genuine issue for trial; it must be “plain and obvious” the claim cannot succeed; where a claim is barred by a limitation period there is “no genuine issue for trial”. [ 21 ] No one disagreed either that reviewing courts should give municipal bylaws a benevolent, fair, large and liberal construction and an

interpretation consistent with the MGA , that the Act is intended to give broad authority to councils, and is meant to respect their right to govern municipalities in whatever way the councils consider appropriate. [ 22 ] With the background and issues having been identified, I will turn now to the crux of the application before me: what is the meaning and effect of Okotoks 2013 ? III. O kotoks in the court below [ 23 ] The case was heard in the first instance before McMahon J. and decided in reasons reported at 2012 ABQB 53 .

[24] The Town of Okotoks was in the shoes of Mammoet/Kiewit here. Okotoks, together with a developer, challenged the validityof a bylaw passed on August 12, 2010 by the neighbouring municipality the MD of Foothills. Okotoks was involved in the processgiving rise to the impugned bylaw. Okotoks then had ample notice and opportunity to seek relief, on invalidity grounds amongst othersperhaps, within the applicable limitation period. Yet it failed to act within that limitation period. [25] Okotoks objected that the impugned bylaw was inconsistent with an earlier MD of Foothills bylaw, and as such violated s. 638of the MGA.

Section 638 provides that “All statutory plans adopted by a municipality must be consistent with each other.” [26] At paragraphs 31-33 of his reasons McMahon J. characterized the alleged inconsistency in the following terms: 31 Okotoks does not attack the authority of the MD to pass a bylaw authorizing an ASP. The MD clearly has the statutory authority todo so. This is a different case from a municipality which levies a development fee when it had no jurisdiction to do so (Rocky View).

TheMGA grants a municipality the authority to pass a bylaw adopting an ASP. 32 The issue taken here by Okotoks is with the content of this ASP, some of which it says conflicts in a planning sense with the IDPand so contravenes

section 638 of the MGA. That is, the objection is not that the MD has no authority to pass an ASP bylaw but that theplanning details of this particular ASP may conflict with the other statutory plan, the IDP.

"As long as the delegate acts bona fide, thecourts will generally be very reluctant to second guess its opinion, with the result that it is impossible to assert that the delegate's action isultra vires." Jones and De Villars, "Principles of Administrative Law", 5th ed., pg. 144. 33 Put yet another way, it is not that an ASP bylaw is ultra vires the MD but that the decision of the MD to approve this particulardevelopment proposal conflicts in some way with the IDP.

That in my view is a decision of the MD which is within the contemplation ofRule 3.15(2). [27] On the basis then of his characterization of the impugned bylaw giving rise to an administrative planning decision, McMahonJ. distinguished United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City of) 2002 ABCA 131, rev’d on other grounds2004 SCC 19 , [2004] 1 SCR 485, and for that matter Urban Development Institute v.

Rocky View (M.D. #44) 2002 ABQB 651(per Kenny J.) [28] United Taxi held that the predecessor rule to Rule 3.15(2) does not apply to a jurisdictional challenge to the validity of parts ofa bylaw. As stated at paras. 162-164: 162 … [the predecessor] Rule 753.11(1) is inapplicable. No relief is sought to set aside "a decision or act". What is sought is adeclaration of invalidity of parts of a bylaw due to lack of jurisdiction.

In such cases, R.753.11(2) does not affect the ability of a court todecide the municipality lacked the jurisdiction under its constituent legislation. 163 Nor does s. 537 of the MGA have any application to this appeal because the basis for the requested declaration of invalidity is thatthe City acted beyond its power, not that the City failed to comply with the MGA or another enactment in the proceedings prior to thepassage of the Bylaw, or the manner of passing it.

The court retains discretion to deny relief because of delay, but such discretionarywithholding of a remedy does not make a tribunal's actions valid: P.P.G. Industries Canada Ltd. v. Canada (Attorney General), (SCC), [1976] 2 S.C.R. 739 and see, Wade & Forsyth, Administrative Law, 7th ed. (Oxford: Clarendon Press, 1994) ch. 10.When a jurisdictional error has been made, the decision is void, and waiver, acquiescence or delay does not confer validity: Tonks v.Reid, (SCC), [1967] S.C.R. 81; Kuchma v.

Tache, (SCC), [1945] S.C.R. 234; see, also, deVillars andJones, Principles of Administrative Law, 3rd e. (Toronto: Carswell, 1999) at 582-4. 164 A distinction is sometimes made between void and voidable bylaws. A void bylaw is one made without the competence to enact,while a voidable bylaw lacks compliance with formality or irregularity in the proceedings relating to its passing. Limitation periods maynot bar actions if the impugned bylaw is void, rather than voidable: Wiswell v.

Winnipeg, (SCC), [1965] S.C.R. 512.… [29] To a similar effect, Rocky View is a decision which involved a challenge to a municipal bylaw imposing certain fees arguablyoutside the municipality’s jurisdiction. [30] In Rocky View Kenny J. proceeded in part on the basis she was not dealing with an “decision” of an administrative bodycaught by the limitation period: 10 Part of the confusion as to the nature of bylaws stems from "the composite nature of the municipal council." Foster v. Reno (1910),22 O.L.R. 413 at paragraph 11. Municipal councils may be both administrative bodies and legislative ones.

In Foster, ibid., the OntarioHigh Court of Justice held that where a municipal council is duty bound to perform a certain act, it may do so without a bylaw as, in thatcircumstance, it is behaving administratively. Conversely, when a municipal council engages in policy-making and passes bylawsreflecting this policy, it is acting legislatively and the bylaw becomes enforceable as

an Act of the Legislature. Hill v. Rocky View(District) No. 44 (1978), 1978 ALTASCAD 256 , 12 A.R. 238 at paragraph 14 (S.C. (A.D.)). As the Court pointed out in Hill,ibid. at paragraph 16, quoting Rogers, The Law of Municipal Corporations, 2nd Ed, "a bylaw is the equivalent of 'legislative action'".The characterization of a bylaw as legislation rather than a decision of a tribunal is further supported by Jones & de Villars' Principles ofAdministrative Law, 2nd Ed. (Toronto: Carswell, 1994) at p.110 which states that bylaws are subordinate legislation. 11

Section 650 of the Municipal Government Act is permissive. It states that the municipality may enact a bylaw imposing conditionson development permits. As this is a discretionary matter, it falls outside the administrative duties of the MD and within the MD'sdiscretion to legislate policy through bylaws. Thus, the matter before the Court is not a "decision" of an administrative body. It islegislation. [31] Kenny J. also relied on, amongst other cases, United Taxi, about which she commented: 16 … this matter seems to have been conclusively resolved by the Alberta Court of Appeal in the recent United Taxi Drivers

Fellowship of Southern Alberta decision, supra. In finding that Rule 753.11(1) did not apply to a request for a declaration that a Calgarycity bylaw was invalid, the Court stated at paragraph 162: No relief is sought to set aside "a decision or act". What is sought is a declaration of invalidity of parts of a bylaw due to lack ofjurisdiction.

In such cases, [the time limit set out in] R.753.11(2) does not affect the ability of a court to decide the municipality lackedthe jurisdiction under its constituent legislation. [32] Regarding the application of the limitation period to an arguably invalid bylaw Kenny J. in Rocky View relied on what sheconcluded was ample Canadian authority that once declared invalid a bylaw is a nullity, “…is seen never to have occurred or existed[and] no delay in challenging it can validate it”. (at para. 20) [33] At the end of the day, McMahon J. decided the MD of Foothills’ bylaw did not raise jurisdictional or validity issues.

Heidentified the issue as the decision of the MD made pursuant to the bylaw, and concluded it was an administrative one to which Rule3.15(2) applied. IV. Okotoks 2013 [34] Turning then squarely to the decision in Okotoks 2013, the Court of Appeal characterized the issue before it solely as to theapplication of Rule 3.15(2) on an application under s. 536 of the MGA. The court did not specifically mention the s. 638 MGA context ofthe case.

Nor did it comment particularly on McMahon J.’s characterization of the MD of Foothills bylaw, and/or the actions taken underit, as administrative or rather as going to validity or jurisdiction. [35] The Court of Appeal noted early in its reasons, that “Okotoks had been involved throughout [in] the process leading to thebylaw.” [36] The court in Okotoks 2013 noted the following arguments on appeal. ‘Decision or act’ [37] First regarding Rule 3.15(2) the court noted Okotoks’ argument that the challenge to the MD of Foothills bylaw was not achallenge to an administrative “decision or act” as contemplated in Rule 3.15(2).

Okotoks doubtless relied on the authority of UnitedTaxi (and similarly Rocky View), at least as it existed at the time, that the predecessor to Rule 3.15(2) did not apply to an application fora declaration of invalidity of parts of a bylaw due to a lack of jurisdiction. [38] Without mentioning United Taxi or Rocky View at all on this point – and without specifically overruling United Taxi on it –the court in Okotoks 2013 at para. 9 held that a municipal bylaw is indeed “a decision or act” which is subject to the Rule 3.15(2)limitation period.

Void/Voidable [39] The court in Okotoks 2013 then went on to address Okotoks’ argument that no limitation period applied because it wasseeking a statutory rather than administrative law remedy of declaring the MD of Foothills bylaw invalid. In rejecting this argument thecourt in Okotoks 2013 at para. 12 recognized what United Taxi said on the same point: [12] In United Taxi the court determined that former Rule 753.11 did not apply to an application to have a bylaw declared invalid.

Thecourt distinguished between challenges to a bylaw on procedural grounds, which would be subject to a limitation period, and challengesalleging that the statutory body had no jurisdiction under its constituent legislation to pass the bylaw which could be brought at any time. [40] The court in Okotoks 2013 then appeared to depart from United Taxi, in the following terms: [13] However, in Papaschase Indian Band No 136 v. Canada (Attorney General), 2004 ABQB 655, 365 AR 1, rev'd on other grounds(Lameman v.

Canada (Attorney General), 2006 ABCA 392, 66 Alta LR (4th) 243, rev'd 2008 SCC 14, [2008] 1 SCR 372, the courtconsidered the application of Rule 753.11 to an action seeking declarations that various decisions, including orders-in-council that hadbeen taken by the Crown, were void. Slatter J. (as he then was) concluded at para 114: The Applicants in this case have not applied for certiorari, although they have applied for declarations that the variousdecisions they challenge are void.

Some case law holds that the six-month limitation period for certiorari cannot be evaded by simplyasking for a declaration of invalidity instead: Krawec v. Workers Compensation Board (1988), 1998 ABQB 886 , 233 A.R. 110;Simlote v. The Queen, 1989 ABCA 236 , [1989] A.J. No. 818, [1989] A.U.D. 673, 69 Alta. L.R. (2d) 401 (C.A.); Re Babiub(1992), (AB KB), 133 A.R. 21, 4 Alta. L.R. (3d) 390; Boyd v. Alberta (2000), 2000 ABQB 840 , 278 A.R.341, aff'd 2002 ABCA 34 , 299 A.R. 198 (C.A.).

Other cases suggest that time limitations do not apply to decisions that arecharacterized as "void", or that the time limitation on a motion to quash does not apply to a declaration that the decision is void: seeUnited Taxi Drivers Fellowship of Southern Alberta v. Calgary (City) [citations omitted]; Alberta Union of Provincial Employees v.Alberta [citations omitted] Rocky View v. Rocky View (M.D. #44) [citations omitted] In my view the better

interpretation is that thelimitation period prevents all challenges to the decision, including the ability to challenge the alleged voidness of the decision. In the end,this is largely a matter of statutory

interpretation: when the Legislature enacted the limitation period, did it intend to apply it only toerrors of law on the face of the record, or also to jurisdictional errors? The purpose of the limitation period is to bring certainty toadministrative decisions, and there is no obvious reason why the Legislature would exempt a large body of decisions from the rule.[emphasis added] In Alberta the issue is in my view answered by Rule 753.05 which reads:

753.05 Subject to Rule 753.11, where the applicant on an application for judicial review is entitled to a declaration that adecision or act is unauthorized or invalid, the court may, instead of making a declaration, set aside the decision or act. [Emphasis added.] [14] More recently this court in Athabasca Chipewyan First Nation v.

Alberta (Minister of Energy), 2011 ABCA 29, 505 AR 72,approved Slatter J.'s discussion in Papaschase and concluded that Rule 753.11 applied to applications framed as requesting declaratoryrelief. [15] The Legislature is "presumed to know its own statute book and to draft each new provision with regard to the structures,conventions and habits of expression as well as the substantive law embodied in existing legislation": Ruth Sullivan, Sullivan on theConstruction of Statutes, 5th ed (Ottawa: LexisNexis) at 411.

In our view the Legislature knew full well in 2010 when it enacted theRules that the judicial review rules, including Rule 3.15(2), were being applied to challenges of bylaws as well as to the traditionaljudicial review remedies. [41] It is these comments that Edmonton and Focus rely on to conclude Okotoks 2013 erased any distinctions between void andvoidable bylaws for purposes of judicial review proceedings seeking declaratory relief (and earlier expanded the meaning of ‘decision oract’ to include such enactments).

Edmonton and Focus say that Okotoks 2013 is either distinguishable from United Taxi or if notdistinguishable, then overrules it. [42] For reasons which follow, I am not persuaded the two cases can be distinguished.

And despite the best efforts of counsel forMammoet/Kiewit, and indeed by the intervener, the Minister of Justice and Solicitor General of Alberta (“Alberta”), again set out later inthese reasons, I have to agree with Edmonton and Focus that Okotoks 2013 on its face is in conflict with United Taxi and appears toreverse it on the issues described above. [43] Again, the court in Okotoks 2013 did not state such an intent.

Nor did it, one way or the other, comment on the factMcMahon J. appeared to proceed on the basis that United Taxi and for that matter Rocky View were, while distinguishable, still goodauthority that invalidity challenges are not caught by the limitation period. (And I note that the court in Athabasca Chipewyan FirstNation v.

Alberta (Minister of Energy 2011 ABCA 29 likewise did not comment on the case management judge’s finding that “somerequests for declaratory relief may be made outside the six month time limit …” (at para. 3)) [44] Perhaps more fundamentally, if Okotoks 2013 intended to or has had the effect of overruling United Taxi, what then to makeof the fact that United Taxi itself followed Supreme Court of Canada authority in the often-cited case of Wiswell v. Winnipeg, (SCC), [1965] S.C.R. 512? [45] Again at para. 164 in United Taxi the court states: 164 A distinction is sometimes made between void and voidable bylaws.

A void bylaw is one made without the competence to enact,while a voidable bylaw lacks compliance with formality or irregularity in the proceedings relating to its passing. Limitation periods maynot bar actions if the impugned bylaw is void, rather than voidable: Wiswell v. Winnipeg, (SCC), [1965] S.C.R. 512. [46] And earlier in the same decision, United Taxi at para. 163 cites further Supreme Court of Canada authority in Tonks v. York(Township) and Kuchma v.

Tache (Rural Municipality) [citations omitted] together with deVillars Jones Principles of Administrative Law (3rd ed., Toronto: 1999) at 582-4, for the proposition that: When a jurisdictional error has been made, the decision is void, and waiver, acquiescence or delay does not confer validity. [47] United Taxi then, subject to the impact of Okotoks 2013, does appear to be authority that an important distinction existsbetween voidable and void enactments. [48] And both United Taxi and Wiswell do appear to stand squarely for the proposition that a challenge to an arguably invalidbylaw will not fail owing to an expired limitation period.

The latter court adopted the comment by Rogers in The Law of CanadianMunicipal Corporations, vol. 2, at p. 893: …A voidable by-law is one that is defective for non-observance or want of compliance with a statutory formality or an irregularity in theproceedings relation to its passing and is therefore liable to be quashed whereas a void by-law is one that is beyond the competence toenact either because of complete lack of power to legislate upon the subject matter or because of a non-compliance with a prerequisite toits passing. [49] In turn, the most recent update of The Law of Canadian Municipal Corporations, under the heading “Failure to Apply inTime” (at pp. 999-1002), cites Wiswell amongst other authorities for the proposition that limitation periods do not bar challenges tobylaws which are arguably invalid. [50] Wiswell was reaffirmed in Immeubles Port Louis Ltée v.

Lafontaine (Village) (SCC), [1991] 1 SCR 326, atpara. 67. [51] Wiswell was also recently applied in Kimpton v. Victoria 2008 BCCA 225. Kimpton was a case which rejected amunicipality’s reliance on a six-month limitation against a bylaw invalidity challenge. [52] Mammoet/Kiewit also point me to Catalyst Paper Corp. v. North Cowichan (District) 2012 SCC 12 as another recentexample of the principle that, as stated at para. 12: … municipal acts may be set aside because they fall outside the scope of what the empowering legislative scheme contemplated.

Thissubstantive review is premised on the fundamental assumption derived from the rule of law that a legislature does not intend the power itdelegates to be exercised unreasonably, or in some cases, incorrectly.

[53] Edmonton (though Focus less so, as it argues many of the cases are distinguishable) does not so much question the ‘rule oflaw’ principles stated in these cases and authorities. But they say that Okotoks 2013 changes everything, by expanding the definition of“decision or act” to include even arguably invalid (or ultra vires or void) bylaws, and by limiting the rule of law by way of the Rule3.15(2) limitation period. [54] Edmonton seeks to ‘take the edge off’ the potentially harsh outcomes of this

interpretation by citing Central HalifaxCommunity Assn. v. Halifax (Regional Municipality) 2007 NSCA 39 (which itself was mentioned in Athabasca Chipewyan, at para.28) for the proposition the superior court retains inherent jurisdiction to remedy abuses in exceptional circumstances, or in an“extraordinarily unjust situation”: Reid v. Clyde 2002 ABQB 913 (although one was not found there). In my view such ‘exceptional’ or‘extraordinary’ opportunities to challenge otherwise invalid laws are of a different species entirely from the broad rights found in theauthorities relied on by Mammoet/Kiewit.

And I am not convinced that I can or indeed should ‘read in’ to Okotoks 2013 such an inherentjurisdiction to what otherwise appears to be very much the all-or-nothing effect of the limitation period. [55] Edmonton acknowledges in its brief, and in argument before me, that its reading of Okotoks 2013 taken together withPapaschase and Athabasca Fort Chipewyan “may constitute a significant shift away from the historical

interpretation of municipalauthority”. Indeed in argument before me counsel for Edmonton acknowledged this “shift” on its face is at odds with the long-established authority of Wiswell and cases which have followed it. [56] On the other hand in supplementary written submissions Edmonton argues Wiswell is in fact distinguishable on the basis thelimitation period before it did not apply to all manner of challenges as does Rule 3.15(2), as interpreted by Okotoks 2013.

Be that as itmay, Wiswell has been cited repeatedly for the broader proposition relied upon by Mammoet/Kiewit. [57] For its part, Focus did not concede any dissonance between the Wiswell and Okotoks 2013 lines of authority.

It points toparagraph 39 in Wiswell and the fact that at issue was a statutory limitation period, thus attempting to distinguish Wiswell and cases likeit relied upon by Mammoet/Kiewit. [58] Again, with the benefit of supplementary written submissions on the material distinction, if there is one, between a specificstatutory limitation and a more general limitation period such as Rule 3.15(2), I reiterate that I am not persuaded that any materialdifference exists between the two. [59] As such, I agree that Okotoks 2013 cannot be distinguished from the Wiswell line of authorities, at least on the basis of thenature of the limitation period. [60] I will pause again to note that in its supplementary written submission Edmonton mentions Barke v.

Calgary (City) (1993) (AB KB), 139 A.R. 15 (QB) and concedes that Rule 3.15(2) would not trump a Charter challenge made beyond thesix-month limitation period. Edmonton does not explain however why a party with Charter rights should be in a better position than aparty seeking to challenge an enactment based on any other ground of invalidity, for example a bylaw for the closing of stores on certainreligious and other holidays, declared ultra vires on division of powers grounds in Henry Birks & Sons (Montreal) Ltd. v.

Montreal(City) (SCC), [1955] S.C.R. 799. [61] Nor does Edmonton point to anything said in Okotoks 2013 that creates an exception for Charter or other applicants. [62] For itself Focus again parts company from the City by arguing Barke is distinguishable. Focus also concedes no Charter orother exception to the rule it says Okotoks 2013 now lays down. [63] And so clearly between them Edmonton and Focus do not quite agree on how to situate Okotoks 2013 amidst some if not allof the contrary authorities.

I perceived no disagreement however that but for Okotoks 2013, the prevailing authorities would allowMammoet/Kiewit to seek declaratory relief notwithstanding Rule 3.15(2). V. Stare decisis [64] Mammoet/Kiewit say that if I am unable to distinguish Wiswell from Okotoks 2013 – as I have concluded – then I am facedwith conflicting authorities from the Supreme Court of Canada and the Alberta Court of Appeal, and I am bound by the former. Mammoet/Kiewit cite no authority for that proposition. Edmonton and Focus cite no authority to the contrary. [65] There is authority to the contrary: R. v.

Youngpine 2009 ABCA 89, followed in R. v. Zentner 2012 ABCA 332; and Alta.Prov’l J.J. Assn. v. R. 2004 ABQB 611. [66] The court in Youngpine states: 18 The doctrine of stare decisis, that is precedent, is not based on the length of the Court of Appeal's judgments nor on the extent of itsanalysis in individual cases. It is not even based on whether the Court of Appeal's decision is arguably wrong in law.

Unless and until adecision of this Court is reversed either by the Supreme Court of Canada or by this Court on a reconsideration motion in accordance withCourt procedures, it is binding on lower courts in Alberta. [emphasis added] Citizens are entitled to expect the legal stability provided bycourts' adherence to the doctrine of precedent. The justice system cannot function properly otherwise: Woods Manufacturing Co. Ltd. v.The King, (SCC), [1951] S.C.R. 504 at 515; and R. v.

Crazybull (1993), 1993 ABCA 197 , 141 A.R. 69 atparas. 20-21 (C.A.)… [67] And in Zentner at para. 21 the court states: 21 This Court and many other courts have held repeatedly that trial courts are bound by precedents laid down by appellate courts intheir own province. [emphasis added] It is very hard to find any authority at all to the contrary. One could fill pages on this topic, but itsuffices to refer to the recent discussion and citations in R. v. Arcand, 2010 ABCA 363, 499 AR 1 (paras 183-84). That was a reserveddecision of a five-judge panel overruling some decisions which had not followed precedent.

That the trial court judge thinks the previous

Court of Appeal precedent mistaken, is no excuse for disobeying it: R. v. Youngpine, 2009 ABCA 89 (para 18). [68] Woods Manufacturing was referred to in Alta. Prov’l J.J. Assn. v. R. 2004 ABQB 611. It is the only case coming to myattention in which a chambers or trial judge had to grapple with whether to be bound by the appellate court of his province, or of hiscountry. McCallum J. concluded he was bound by the former.

But he did not reach that conclusion uncritically, but rather did so onlyafter considering the competing authorities, as is apparent from his reasons which follow: 113 In argument, counsel for Alberta invited me to follow the Supreme Court of Canada in preference to the majority in Bodner,arguing that stare decisis directs me to follow the Supreme Court where it has spoken clearly. The Association, on the other hand, saysthat this is not an accepted

interpretation of the doctrine of stare decisis. No authority was provided. 114 The essence of the question is this: Am I bound by an Alberta Court of Appeal decision which I believe wrongly applies a decisionby the Supreme Court of Canada? 115 In Canada A.G. v. Woods Manufacturing Company, (CA EXC), [1949] Ex.

C.R. 9 at paragraphs 83 to 86, theExchequer Court of Canada declined to follow a Supreme Court of Canada decision on the basis that the Supreme Court had clearlymisinterpreted the relevant statute. 116 The Supreme Court of Canada reversed this decision (SCC), [1951] S.C.R. 504) ... 117 There are, in the present case, strong arguments favouring obiter, but equally strong indications that Bodner mandates a two-parttest as part of its ratio. Prudence dictates that where there is doubt on my part, it should be resolved in favour of stare decisis [ie, infavour of following Bodner]. [69] In Alta. Prov’l J.J.

Assn. therefore McCallum J. considered arguments for and against following the Alberta authority ofBodner as against Supreme Court of Canada authority, then resolved any doubts he had in favour of being bound by the Alberta court. [70] In the case before me I am faced with a similar degree of uncertainty although it arises somewhat differently. [71] As suggested above there is an apparent and to me irreconcilable conflict between the earlier authorities and the more recentdecision in Okotoks 2013. The question however is not whether I am bound by either Okotoks 2013 or Wiswell.

It is rather which ofOkotoks 2013 or United Taxi is binding on me?

For reasons which follow and to paraphrase McCallum J., I am inclined to resolve anydoubts or uncertainty I have in favour of United Taxi. [72] As laid out above, United Taxi unequivocally follows the well-established and I find indistinguishable authority in Wiswell. [73] Okotoks 2013 mentions United Taxi but says nothing about the Wiswell line of authorities. [74] After referring to United Taxi the court in Okotoks 2013 appears to prefer the reasoning on the void/voidable distinction inPapaschase and Athabasca Chipewyan, yet both are cases in which administrative decisions, rather than legislative enactments, were atissue. [75] Without apparent explanation, Okotoks 2013 conflicts with United Taxi on what is a ‘decision or act’. [76] And so in these respects Okotoks 2013 does appear to conflict with United Taxi yet the latter is not expressly overruled orreversed. [77] What’s more, nowhere in Okotoks 2013 is the court’s own reconsideration procedure invoked, either by the parties or, on theface of it, by the court on its own motion. [78] R. v.

Arcand 2010 ABCA 363, albeit a sentencing decision, refers to the court’s general reconsideration procedure in detail. Itnotes the mandatory nature of it (at para. 196). It notes that the court “…has consistently taken a cautious approach to overrulingprecedent” (at para. 199).

It notes that all judges of the Court of Appeal are bound by it. (at para. 299) And the concurring minorityreasons in Arcand agree with the majority “…that an appellate court is generally bound to follow its previous decisions on a point oflaw”. (at para 382) The minority also says this: Once an appellate court has interpreted a Supreme Court decision, generally subsequent appellant panels are bound to follow theinterpretation even if they disagree with it, since only a higher court can correct the mistake. (at para. 396) [79] All of this is simply to put into perspective the argument advanced by Edmonton and Focus that Okotoks 2013, if notdistinguishable, then not only has the effect of, but was intended to reverse United Taxi.

While I agree it does appear to have that effect,without more I am not persuaded it was intended to. [80] On the other hand, the intent of the court in United Taxi and the authorities on which it relies could not be more clearly stated. [81] I recognize the admonition in R. v. Bonneteau 1994 ABCA 327 at para. 23 that 23 The doctrine of stare decisis required the trial judge to follow and apply the most recent authoritative statements of law from thiscourt. Those were in the judgment in Ollenberger.

It was not open to him to reject those statements and declare the law to be as set out inan earlier decision of this court. [82] However in Bonneteau the “authoritative statement” was a comment in R. v. Ollenberger (1994), 1994 ABCA 72 ,149 A.R. 81 at para 18 that to the extent that the majority judgment in [the earlier case] could be interpreted as saying anything to thecontrary [of Ollenberger], it did not set out the law in this province. There is no such authoritative statement in Okotoks 2013 stating thatUnited Taxi is no longer the law in this province.

[ 83 ] At the end of the day I have two authorities each of which are binding upon me. I cannot follow both. For reasons stated I am persuaded to follow United Taxi .

Summary judgment on this point is dismissed. VI. Mammoet/Kiewit’s involvement in the process [ 84 ] If I am wrong on the stare decisis point, then I turn to Mammoet/Kiewit’s argument that Okotoks 2013 is distinguishable on the basis that unlike the Town of Okotoks, Mammoet/Kiewit had no involvement or no reasonable opportunity before the limitation period expired, to challenge the impugned bylaw. [ 85 ] Mammoet/Kiewit say Okotoks 2013 is distinguishable on the basis of Okotoks’ involvement in the process. Mammoet/Kiewit had no such involvement in the events leading to the October 1, 2006 passage of the ARA Bylaw.

And as noted, Mammoet/Kiewit say they could not reasonably have anticipated – within six months of its passage – the impact of the bylaw on them years later. Given the operation of ss. 3(

c) and 7 of the bylaw Mammoet/Kiewit say they could not have reasonably known of the impact of the bylaw on them within the same limitation period. While they agree that s. 3(

c) creates a formula for “arterial roadway assessment” in a “catchment” area, Mammoet/Kiewit say that formula must be read together with s. 7 which appears to permit the exercise of discretion by a municipal authority whether to require payment for certain arterial roads within a Catchment. [ 86 ] As did McMahon J. in his reasons, the court in Okotoks 2013 noted Okotoks’ involvement in the events leading up to the enactment of the impugned bylaw in that case. While no more is said of it, I assume that by mentioning it the court in Okotoks 2013 considered Okotoks’ involvement to be of some importance. [ 87 ] In the

summary judgment application before me I am not prepared to conclude Okotoks’ involvement is irrelevant or meaningless. It strikes me as material that Okotoks was involved in the bylaw process, and thus could have challenged the ‘decision or act’ well within the six-month limitation period. I am not convinced on the evidence before me that Mammoet/Kiewit could have plainly or obviously done so, on any reasonable basis. [ 88 ] Mammoet/Kiewit should be allowed to litigate this factual point further on the merits application. [ 89 ] As to the law, I appreciate the force of Athabasca Chipewyan First Nation v.

Alberta (Minister of Energy 2011 ABCA 29 with regard to notice. Athabasca Chipewyan however was not a municipal bylaw case but one involving clearly administrative decisions to grant certain leases.

It is arguably distinguishable on that basis. [ 90 ] What’s more, the court in Athabasca Chipewyan was careful to note that notice was given of the granting of the leases by way of posting on the Aboriginal Community Link web site well within the limitation period; the court also noted that the applicant tendered no evidence as to when it first became aware of the leases or to explain why it did not use the Aboriginal Community Link despite the availability of internet in its offices.

The court concluded it was not unreasonable to conclude the notice through Aboriginal Community Link would be effective to bring the granting of the leases to the applicant’s attention. [ 91 ] I have re-read the many limitations cases put before me by the parties to this application in an effort to understand the ‘notice’ context in which these cases have been decided. In spite of the often-repeated finding that formal notice is not required, I have come across no case in which a party denied the opportunity to challenge the validity of

an act or decision (including legislation) has not had actual or constructive notice of the impugned act or decision. [ 92 ] In Central Halifax for example, while it was held that no notice of the impugned decision was required, the affected party in fact had five and one half months’ notice of the decision she was required to challenge. [ 93 ] In United Taxi , while a great deal of time passed before the application challenging the ultra vires bylaw, in fact the affected parties had expressed their concerns with the bylaw even before its enactment. (Of course the court declined to apply the limitation period in any event.) [ 94 ] Likewise, in Rocky View , the Urban Development Institute through counsel gave notice of its objections even before the invalid bylaw was enacted. (Again of course the limitation period was not applied in any event.) [ 95 ] The case of Barke v.

Calgary (City) mentioned earlier in these reason, involved a challenge under the Charter of Rights and Freedoms to a municipal bylaw. The date of the enactment of the bylaw is not apparent in the reasons. Probably though it was at least six months before Barke’s challenge which was initiated by originating notice filed October 7, 1992. [ 96 ] The decision hinges not on the predecessor to Rule 3.15(2) but rather on the two-month limitation period at then- s. 414(9) of the MGA . Hunt.

J. (as she then was) rejected the municipality’s reliance on the limitation period, stating at para. 18: 18 The weakness of this argument is that, were it sound, a City By-Law could rarely, if ever, be attacked on Charter grounds. Section 52(1) of the Constitution Act, 1982, R.S.C. 1985, Appendix II, No. 44, states that the Constitution is the supreme law of Canada and that any inconsistent provision of law is, to the extent of the inconsistency, "of no force or effect". The Applicant seeks, inter alia, a declaration that the impugned provisions of the By-Law are of no force and effect.

If indeed his Charter rights have been infringed, I cannot see how he could be denied the opportunity to make his arguments merely because of time limits in the Municipal Government Act relating to the quashing of By-Laws. [ 97 ] Barke is not a case in which a party was denied an opportunity to challenge the validity of legislation based on a limitation period.

I dwell on it however because it illustrates a point I find hard to accept without more: that if decided under Okotoks 2013 , Barke would almost certainly have missed his limitation period for judicial review, and so too, would have missed asserting his Charter rights. [ 98 ] And so, acknowledging what Athabasca Chipewyan says about notice, I am still having trouble in law ignoring the fact that in all of the cases mentioned ‘it just so happened’ that notice was in fact given or was available.

And on the facts, there is evidence which should be considered on the merits application going to actual and/or constructive notice. I conclude therefore that the

respondents have an arguable case that on the basis of Okotoks’ involvement in the MD of Foothills bylaw, the decision in Okotoks 2013is distinguishable.

Summary judgment is therefore dismissed on this basis. VII. Constitutional arguments [99] In the further alternative, Mammoet/Kiewit argue a point clearly not raised before the court in Okotoks 2013: assuming Rule3.15(2) is a bar to their application, is it ultra vires Alberta as limiting the superintending and reforming powers of the superior court? [100] The intervener Alberta says the constitutional argument can be avoided entirely if Okotoks 2013 is properly read as consistentwith Wiswell and United Taxi.

This takes me back to points dealt with earlier in these reasons, but they bear repeating here. [101] Alberta says that nothing in Okotoks 2013 interferes with the well-understood rule that the vires of legislation is always open tochallenge at any time.

Quoting from McMahon J.’s decision at paragraphs 31-33 Alberta says that clearly the challenge in Okotoks wasmerely to an administrative decision with respect to planning and development. [102] Alberta draws an analogy to a statutory privative clause which, like a limitation period, has the effect of ousting superior courtreview from decisions within the jurisdiction of a statutory delegate.

With regard to decisions outside of such jurisdiction however Alberta continues the analogy, and quotes from Jones & deVillars’ Principles of Administrative Law (5th Ed., (Toronto: Carswell, 2009)at pp. 475-476: Of course privative clauses cannot constitutionally be effective to oust judicial review of jurisdictional questions, on the rationale that astatutory delegate cannot lawfully made a decision outside its jurisdiction, so there is nothing to be protected by the privative clause. [103] Alberta also refers to Société d’énergie de la Baie James v.

Noel 2001 SCC 39 for the proposition that a legislature may limitor circumscribe the power of superior court review when it does not involve the legality of actions by public authorities. Noel is a labourlaw case which involved an attack on the reasonableness of a tribunal’s decision.

The tribunal’s jurisdiction in any ultra vires sense wasnot squarely in issue. (Arguably the court’s findings would apply ‘in spades’ were ultra vires in issue.) The court was careful to note theattack was brought in the “…broader framework of the entire relationship between the union and the employer in respect of which it iscertified and with which it has entered into collective agreements”, including the union’s rights and obligations regarding representation.

While judicial review by the superior courts is an important principle, it cannot allow employees to jeopardize this expectation ofstability in labour relations in a situation where there is union representation.

Allowing an employee to take action against a decisionmade by his or her union, by applying for judicial review where he or she believes that the arbitration award was unreasonable, wouldoffend the union's exclusive right of representation and the legislative intent regarding the finality of the arbitration process, and wouldjeopardize the effectiveness and speed of the arbitration process. (para. 62) [104] In this context the court approved certain ‘civil procedure’ limits on the core superintending and reforming powers of thesuperior court. The court also posed however when such limits might be exceeded.

Lebel J. for the court thus commented at paragraphs65-69: 65 The question of unduly limiting the Superior Court's power of review does not arise in this case. While review of the legality ofactions by public authorities is a central element of the Superior Court's jurisdiction, the legitimacy of defining certain limits to whichthat function must be subject is recognized in administrative and constitutional law. That function is not absolute.

Provided they do notabolish it, legislatures may circumscribe and limit it, and may do so specifically by express legislative policy, for example by enactingprivative clauses (see Crevier, supra [Crevier v. Quebec (Attorney General) (SCC), [1981] 2 S.C.R. 220]; see alsoDomtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756, at p.800). 66 The principle of the rule of law does not require that all decisions of a lower court or administrative tribunal necessarily be subjectto microscopic judicial review.

Indeed, the fact that review is often limited to jurisdictional errors provides clear confirmation that it islegitimate to limit this superintending power. Those limits may affect the interest that is required in order for a party to have standing. 67 Imposing this limit on interest is also consistent with the very nature of the power of judicial review, in one form or another, underart. 840 C.C.P. or art. 33 C.C.P., as this Court pointed out in Immeubles Port Louis, supra. Discretion is inherent in the concept ofjudicial review itself.

The exercise of that discretion must therefore take into account the demands of the legal policy that is apparent onexamining the labour relations scheme that is in effect in Quebec.

While that discretion is an invaluable tool for remedying seriousinjustices, it cannot generally recognize as valid a method of judicial challenge that would jeopardize the expectations of stability andfinality that are an inherent result of the legal mandate of representation that is given to the union. 68 In judicial review of arbitration decisions, the need to respect the collective framework of the labour relations system, the roles ofthe players in that system and the employer's reasonable expectations will justify these kinds of restrictions on the concept of interest andon the

interpretation of that concept and the manner in which it is applied by the Superior Court. Those limitations will not, of course,rule out any possibility of action under art. 33. The Court of Appeal referred to situations such as collusion between employer and union,fraud or bad faith.

We might also think of cases in which the arbitration tribunal was not constituted in accordance with the law.[emphasis added] [105] I pause again to ask if a “tribunal not constituted in accordance with the law” is not analogous to the ARA Bylaw, in the sensethat as noted in Keyland and Prairie Communities it is arguably invalid as not constituted in accordance with the Regulation. [106] In any event, Alberta’s suggested approach to resolving the constitutional issue begs the question whether McMahon J. wasonly dealing a discrete planning decision.

For what it’s worth, on my reading of it McMahon J. was arguably dealing in fact with a bylawvalidity issue. What’s more to the point, Alberta does not persuade me that the court in Okotoks 2013 left in place any distinctionsbetween voidable and void acts or decisions, at least in the municipal law context.

[107] All of that leaves the constitutional issue raised by Mammoet/Kiewit squarely on the table. [108] Alberta certainly adds value on this issue by referring in its own materials to the long-standing superintending and reformingpowers of the superior court as set out in for example Immeubles Port Louis Ltee v.

Lafontaine (Village) (SCC), [1991]1 SCR 326, at paras. 80-81 – powers arising from the common law but which are founded on the rule of law which itself is aconstitutionally-protected value in Canada: Re Manitoba Language Rights (SCC), [1985] 1 SCR 721 at paras. 55-112. [109] No one doubts that a legislature can ‘limit and circumscribe’ superior court review.

It is worth asking however whether it is to‘limit and circumscribe’ rather than to ‘remove absolutely’ the superior courts’ superintending and reforming powers when a legislatureenacts a six-month limitation period the effect of which, once expired, is to bar virtually forever any review of otherwise invalidmunicipal legislation. [110] The Noel case, and the authorities it refers to, do not support such an outcome. Granted, these are cases again dealing withprivative clauses, not limitation periods, but similar principles apply.

And while they recognize that privative clauses, properly framed,effectively oust judicial review on certain questions, these cases stop short of ousting superior court review on jurisdictional issues.Crevier v. A.G. Quebec (SCC), [1981] 2 SCR 220 in particular does so on the basis, as articulated by Martland J. inWoodward Estate v.

Minister of Finance (SCC), [1973] S.C.R. 120, cited on page. 13 of Crevier that: ...that if such a tribunal has acted beyond its jurisdiction in making a decision, it is not a decision at all within the meaning of the statutewhich defines its powers because Parliament could not have intended to clothe such a tribunal with the power to expand its statutoryjurisdiction by an erroneous decision as to the scope of its own powers. [111] Catalyst Paper and many of the other cases mentioned earlier in these reasons say the same thing. [112] Mammoet/Kiewit argue that to the extent Rule 3.15(2) precludes superior court review of arguably invalid bylaws, it isunconstitutional for interfering with the powers of a court appointed under s. 96 of the Constitution Act, 1967 30 & 31 Victoria, c. 3(U.K.) and as recognized in ss. 2, 4 and 5 of the Judicature Act RSA 2000, c.

J-2. Put another way, they argue that by enacting Rule3.15(2), as interpreted by the court in Okotoks 2013, the legislature is impermissibly delegating to itself the powers vested solely in a s.96 court. [113] Alberta again argues the s. 96 issue can be disposed of by reading Okotoks 2013 narrowly as dealing only with anadministrative decision and not the legality or validity of legislation. For reasons already expressed that argument fails. [114] In the alternative, Alberta defends its legislation and refers to the decision of Cooke J. in Wainright School Division No. 32 v.C.U.P.E.

Local 1606 (1987) (AB KB), 55 Alta. L.R.(2d) 213 (Q.B.). [115] Wainright involved a challenge to an interim award made under s. 129 of the Labour Relations Act RSA 1980, c. L-1.1. Thechallenge was not ‘at large’ but to a specific decision. In that sense it is distinguishable from the case before me.

The chambers judgerejected the s. 96 challenge, and distinguished Crevier on the basis that s. 129 allowed a period of 30 days within which applications forcertiorari or mandamus could be brought. [116] The court in Wainright noted that s. 124(3) of the Labour Relations Act also provided a method of service of the awardprotected by the 30-day limitation period, and that on the facts in Wainright service of the impugned award was effected.

Wainright wastherefore a case, like Okotoks and others mentioned earlier in these reasons, in which the party affected by the limitation period wasinvolved from the time of the impugned decision and had actual notice of it. As such, the limitation period served only to ‘limit orcircumscribe’ the role of the s. 96 court.

Wainright was not a case in which a party was unable to challenge an arguably invalid bylawowing to the expiry of a limitation period of which that party had no notice. [117] Alberta finally argues that if all else fails, I should be guided by the many authorities which say constitutional issues should notbe decided in the abstract and only when necessary: Moysa v. Alberta (Labour Relations Board) (SCC), [1989] 1S.C.R. 1572 at 1580.

However, I am not here dealing with abstract issues but rather with the concrete impact on the applicants of anarguably invalid law protected by a provincially-enacted limitation period. [118] In all, I am not persuaded that Mammoet/Kiewit should be denied the opportunity to advance their arguments in the meritshearing under this constitutional law heading. VIII. Conclusion [119] The applications for

summary judgment are dismissed. The applicants have been wholly unsuccessful in these applications. That said, I was assisted by materials filed including those filed by way of fiat, and would not be inclined to assess punitive costs for anylate filings. If the parties are unable to agree, they may of course speak to costs. Heard on the 27th day of September, 2013; further written submissions October 22, 24, 25 & 31, 2013.

Dated at the City of Edmonton, Alberta this 8th day of November, 2013. Peter Michalyshyn J.C.Q.B.A. Appearances: R. Richard Haldane, Q.C. Andrea M. Simmonds Dentons for the Applicants, Mammoet 13220 – 33 Street NE Limited, and Hustle Holdings Ltd. Ken Bailey, Q.C. James K. McFadyen Q.C. Parlee McLaws LLP for the Applicant, Kiewit Energy Canada Corp. Barry Alloway Michael Gunther Solicitor, City of Edmonton for the Respondent, The City of Edmonton Janice Agrios, Q.C. Kennedy Agrios LLP for Focus Equities Alberta Ltd. Lillian Riczu Alberta Justice and Solicitor General Constitutional Law Branch for the Intervener