Kozak v Lacombe (County), 2016 ABQB 385

Court of Queen’s Bench of Alberta Citation: Kozak v Lacombe (County), 2016 ABQB 385 Date: 20160824 Docket: 1501 13788 Registry: Calgary Between: Wade Kozak Applicant - and - Lacombe County and the Minister of Justice and Solicitor General of Alberta Respondents Corrected judgment: A corrigendum was issued on September 8, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.A. Kent _______________________________________________________ [ 1 ] Mr.

Kozak and his wife own property at Blissful Beach, one of the beaches of Sylvan Lake in the County of Lacombe. In 2013, the Kozaks built a new residence on the property which included a private sanitary waste system. The waste from the home is collected in an underground tank on the property. From time to time, the Kozaks hire a waste hauling company to remove the waste from the tank. The system has passed all required inspections. [ 2 ] The County of Lacombe passed a bylaw on May, 2015 that addressed the connection to and provision of municipal sewage disposal services to the residents of Blissful Beach.

That bylaw stated the purpose was

“To regulate the connections and operations of communal sanitary sewage ...”. [3]

Section 4 of the bylaw requires owners of premises to connect to the County wastewater system by October 31, 2020 andmay require owners to pay for the service connection from their property to the main line of the system. Those and consequentialprovisions of the bylaw are the subject of this application. Mr. Kozak argues that these portions of the bylaw are invalid because theCounty exceeded its statutory authority. The sections Mr.

Kozak applies to strike are attached as Appendix A. [4] The County sent a series of letters to the Kozaks beginning in July 2014, where it advised that it had been working on a planto protect the Sylvan Lake water quality. As part of this plan, it would install a communal wastewater system.

As work on the planproceeded, the County advised the Kozaks that it had decided “...to make the owner of the parcel responsible for the cost of the construction of the portion of the service connection from the mainlineto the boundary of the road...” in addition to paying the costs of the tie-in on their own land. [5] In subsequent correspondence, the County advised that there was an opportunity for owners to have a waste collection linedrilled into the owner’s property near any existing onsite disposal system. The Kozaks took advantage of that opportunity because theprice was good.

As a result there is a line leading to the Kozak’s disposal tank but it is not connected. To complete the connection, agrinder pump would need to be installed. That is an expensive piece of equipment. [6] The relevant sections of the Municipal Government Act, RSA 2000, c.M-26 (MGA) are reproduced at Appendix B. Theycan be divided broadly into two sections. This first - ss. 3, 7, 8 and 9 - deal with the purposes, powers and capacity generally ofmunicipalities and their general jurisdiction to pass bylaws. The second - ss. 28 to 39 - deal with public utilities. [7] Mr.

Kozak argues that those sections dealing with public utilities do not permit the County to force owners to connect theirprivate sewage system to the County system and to pay for it. The County makes two arguments. First, ss. 7 and 8 permit me to interpretbylaws broadly and in a purposive way. Second, s. 33 permits the County to prohibit the company that is emptying the Kozak’s sewagetank from providing that service. [8] United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City) 2004, R.C.S. 485 was the first case to consider thescheme of the new MGA. The Court said in its

section entitled “The Proper Approach to the

Interpretation of Municipal Powers”, at p493: The evolution of modern municipality has produced a shift in the proper approach to the

interpretation of statutes empoweringmunicipalities. This notable shift in the nature of municipalities was acknowledge by McLachlin J. (as she then was) in Shell CanadaProducts Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231, at pp. 344-45. The “benevolent” and “strict”construction dichotomy has been set aside and a broad and purposive approach to the

interpretation of municipal powers has been embraced; Nanaimo, supra, at para. 18. This interpretive approach has evolved concomitantly with the modern method of draftingmunicipal legislation. Several provinces have moved away from the practice of granting municipalities specific powers in particularsubject areas, choosing instead to confer them broad authority over generally defined matters: The Municipal Act, S.M. 1996, c. 58,C.C.S.M. c. M225; Municipal Government Act, S.N.S. 1998, c. 18; Municipal Act, R.S.Y. 2002, c. 154; Municipal Act, 2001, S.O. 2201,c. 25; The Cities Act, S.S. 2002, c. C-11.1.

This shift in legislative drafting reflects the true nature of modern municipalities which requiregreater flexibility in fulfilling their statutory purposes; Shell Canada, at pp. 238 and 245. [9] Osman Auction Inc. v Edmonton (City), 2016 ABCA 166 is instructive because of the similarities, not only because it toodealt with a sewage system but more importantly because the City through a development permit issued to a developer required theowners of land to contribute to the cost of servicing the area.

The Court confirmed the decision in Kiewit Energy Canada Corp vEdmonton (Subdivision and Development Appeal Board), 2013 ABCA 407 that the City can impose costs on a developer but only ifspecifically authorized to do so. [10] I acknowledge that the general provisions of the MGA coupled with the decision in United Taxi Drivers require me tointerpret the provisions at issue here broadly.

Section 34 requires the municipality to provide service if the landowner request it. That isnot the case here.

Section 35 applies in cases where the main line is under a road or easement and requires a connection to thelandowner’s property. That is the case here. That

section goes on to say that when the municipality supplies the utility service, it mayrequire the landowner to pay the costs. It is silent, however, on whether the

section only applies when a landowner requests the services(s.34). It does not specifically say that whenever there is provision of services the landowners may be required to pay. [11] In this case, Mr. Kozak has a well-functioning sewage system. There is no suggestion that it is causing any danger or hazardto Sylvan Lake or the land adjacent to the lake. To hold that s. 35 applies in any case including a case like this one where the owner doesnot want or need the services interprets s. 35 too broadly. The logical

interpretation of s. 35 is that it is an extension of s. 34 with theextension being where the main line is under a road or an easement. Otherwise, how a landowner is treated in relation to the connectionwould be different depending only on where the main line is situated. No reason for such a distinction was offered to me. Accordingly s.

35 applies to cases where the landowner requests the connection. To the extent that the sections of the by-law purport to apply that overly broad

interpretation, they are struck down. [ 12 ] There is the municipality’s argument that by

section 33, it may prohibit any waste hauling company from servicing the Kozak system.

Section 33 cannot be used to frustrate the legitimate operation of the Kozak’s sewage system. This

section is intended for circumstances where a private company is in business to haul waste from the public generally, not a contract between such a company and one individual. The municipality cannot make Mr. Kozak pay for connecting the service. Neither can it use another

section of the MGA ( s. 33 ) to essentially force an

interpretation which I have held is not the correct

interpretation. Heard on the 06 th day of July, 2016. Dated at the City of Calgary, Alberta this 24 day of August, 2016. C.A. Kent J.C.Q.B.A. Appearances: Christopher S. Davis for the Applicant Sheila C.

McNaughtan, Q.C. for the Respondent Lacombe County Appendix A Lacombe County Bylaw No. 1203/15 ... 4.3 Provided that pipes forming part of the County wastewater system are located within a road, easement, public utility lot or other property controlled by the County, the County Commissioner may require the Owner of an adjacent property to provide or pay for a service connection from that adjacent property to the main line of the County wastewater system, and, if that adjacent property is connected to any other sewage disposal system, to disconnect from that sewage disposal system and connect to the County’s sewage system. 4.4 All Owners of premises located within the Sylvan Lake Communal Subdivisions shall connect to the County wastewater system. 4.5 All Owners of premises located within the Sylvan Lake Communal Subdivisions from which sewage is generated as of the date of passage of this Bylaw shall connect to the County wastewater system on or before October 31, 2020. 4.6 The County may give to an Owner of premises located within the Sylvan Lake Communal Subdivisions who fails to connect to the County Wastewater System by October 31, 2020, a notice requiring the Owner to connect to the County Wastewater

System within the time period specified by the County, which period shall not be less than 30 days. If an Owner fails to carry out the required steps and actions to the satisfaction of the County within the specified time period, the County may enter onto the lands in question and take the necessary actions, including construction of the service connection, at the owner’s expense. 4.7 All Owners of premises located within the Sylvan Lake Communal Subdivisions will be required to pay a connection fee as per the terms and conditions set out in

Schedule F of this Bylaw. ... Appendix B Municipal Government Act 3 The purposes of a municipality are (

a) to provide good government, (

b) to provide services, facilities or other things that, in the opinion of council, are necessary or desirable for all or a part of the municipality, and (

c) to develop and maintain safe and viable communities. ... 7 A council may pass bylaws for municipal purposes respecting the following matters: ... (

g) public utilities ... 8 Without restricting

section 7, a council may in a bylaw passed under this Division (

a) regulate or prohibit; (

b) deal with any development, activity, industry, business or thing in different ways, divide each of them into classes and deal with each class in different ways; (

c) provide for a system of licences, permits or approvals, including any or all of the following: (

i) establishing fees for licences, permits and approvals, including fees for licences, permits and approvals that may be in the nature of a reasonable tax for the activity authorized or for the purpose of raising revenue; (ii) establishing fees for licences, permits and approvals that are higher for persons or businesses who do not reside or maintain a place of business in the municipality; (iii) prohibiting any development, activity, industry, business or thing until a licence, permit or approval has been granted; (iv) providing that terms and conditions may be imposed on any licence, permit or approval, the nature of the terms and conditions and who may impose them; (

v) setting out the conditions that must be met before a licence, permit or approval is granted or renewed, the nature of the conditions and who may impose them (vi) providing for the duration of licences, permits and approvals and their suspension or cancellation for failure to comply with a term or condition or the bylaw or for any other reason specified in the bylaw; (c.1) establish and specify the fees, rates, fares, tariffs or charges that may be charged for the hire of taxis or limousines; (

d) provide for an appeal, the body that is to decide the appeal and related matters 9 The power to pass bylaws under this Division is stated in general terms to

(

a) give broad authority to councils and to respect their right to govern municipalities in whatever way the councils consider appropriate, within the jurisdiction given to them under this or any other enactment, and (

b) enhance the ability of councils to respond to present and future issues in their municipalities. ... 28 In this Division, ... (e) “service connection” means the part of the system or works of a public utility that runs from the main lines of the public utility to a building or other place on a parcel of land for the purpose of providing the utility service to the parcel and includes those parts of the system or works described in

section 29; (f) “utility service” means the thing that is provided by the system or works of a public utility. ... 33 When a municipality provides a municipal utility service, the council may by bylaw prohibit any person other than the municipality from providing the same or a similar type of utility service in all or part of the municipality. 34(1) If the system or works of a municipal public utility that provide a municipal utility service are adjacent to a parcel of land, the municipality must, when it is able to do so and subject to any terms, costs or charges established by council, provide the municipal utility service to the parcel on the request of the owner of the parcel.

(2) If the system or works of a municipal public utility that provide a municipal utility service are adjacent to a parcel of land, the municipality may, when it is able to do so and subject to any terms, costs or charges established by council, provide the municipal utility service to the parcel on the request of the occupant of the parcel who is not the owner. 35(1) This

section applies when the main lines of the system or works of a municipal public utility are located above, on or underneath a road or easement and the municipality provides the municipal utility service to a parcel of land adjacent to the road or easement.

(2) The municipality is responsible for the construction, maintenance and repair of the portion of the service connection from the main lines of the system or works to the boundary of the road or easement.

(3) Despite subsection (2), the council may as a term of supplying the municipal utility service to the parcel of land make the owner responsible for the costs of the construction, maintenance and repair of the portion of the service connection from the main lines of the system or works to the boundary of the road or easement.

(4) If the owner is responsible for the costs of the construction, maintenance or repair referred to in subsection (3), those costs are an amount owing to the municipality by the owner. ... 37(1) The owner of a parcel of land is responsible for the construction, maintenance and repair of a service connection of a municipal public utility located above, on or underneath the parcel.

(2) If the municipality is not satisfied with the construction, maintenance or repair of the service connection, the municipality may require the owner of the parcel of land to do something in accordance with its instructions with respect to the construction, maintenance or repair of the system or works by a specified time.

(3) If the thing has not been done to the satisfaction of the municipality within the specified time or in an emergency, the municipality may enter on any land or building to construct, maintain or repair the service connection. 38(1) Despite

section 37, the council may as a term of providing a municipal utility service to a parcel of land give the municipality the authority to construct, maintain and repair a service connection located above, on or underneath the parcel.

(2) A municipality that has the authority to construct, maintain or repair a service connection under subsection (1) may enter on any land or building for that purpose [Emphasis Added] _______________________________________________________

Corrigendum of the Reasons for Judgment of The Honourable Madam Justice C.A. Kent _______________________________________________________ Paragraph 8, Line 3: Delete: Property Insert: Proper Line 7: Delete: [1941] Insert: [1994] Paragraph 9, Line 1: Delete: Osmun Insert: Osman