Prediger v Calgary (City), 2017 ABQB 755

Court of Queen’s Bench of Alberta Citation: Prediger v Calgary (City), 2017 ABQB 755 Date: 20171208 Docket: 1701 12576 Registry: Calgary Between: Rudy Prediger on behalf of himself and all other members of a class having a claim against the City of Calgary in respect of its dealings with the residents of Midfield Mobile Home Park Applicant - and - The City of Calgary and Calhome Properties Ltd. carrying on business in the name and style of Calgary Housing Company Respondents _______________________________________________________ Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ I. OVERVIEW

[ 1 ] This application deals with the closure of the Midfield Mobile Home Park (“ Midfield ”). The Applicant, Rudy Prediger, seeks, among other things, a declaration that the closure of Midfield by the Respondents, the City of Calgary (the “ City ”) and Calhome Properties Ltd. (“ Calhome ”), is a breach of the Mobile Home Sites Tenancies Act , RSA 2000, c M-20, section 15(1) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, or both. [ 2 ] Calhome also brings a cross-application seeking to obtain vacant possession of the mobile home sites still occupied by certain Midfield residents, as well as permission to demolish now-abandoned mobile homes still remaining at Midfield. [ 3 ] Let me start by saying that I understand and sympathize with the position in which the residents of Midfield find themselves. While located on leasehold land, these are their homes. They own these homes and many have lived in these homes in Midfield for a good part of their lives. They are a close community.

They are caught between fee simple ownership where one owns the building and the land and a normal lease where both the building and the land on which it sits are leased. In the circumstances of this case, they cannot simply sell their home and buy a new one. They have to either move their trailer or abandon it. I know this situation has been extremely stressful for many residents of Midfield but despite my sympathy, I am bound by the law. However, I must dismiss this application and grant Calhome’s cross-application in part. II. BACKGROUND A.

Facts [ 4 ] Midfield is a 17 acre community located in the Winston Heights-Mountview neighbourhood of Calgary. It has been operated by the City since 1973 and managed by Calhome, doing business as Calgary Housing Company, since 2001. [ 5 ] As a mobile home park, the operation of Midfield is governed by the Mobile Home Sites Tenancies Act [ the Act ] and the Mobile Home Sites Tenancies Ministerial Regulation , Alta Reg 54/1996 [ the Regulations ]. [ 6 ] Since at least 2002, the City has been aware of significant problems with Midfield’s water and sanitary sewer infrastructure (the “ Infrastructure ”).

Consultants have informed the City that this Infrastructure will likely experience a high rate of failure, which has already necessitated millions of dollars in repairs to prolong its service life. [ 7 ] In 2006, the City proposed the Winston Heights-Mountview Area Restructuring Plan. This plan calls for the redevelopment of Midfield and the surrounding area into a high density, “architecturally significant” residential community. [ 8 ] In 2007, Calgary City Council adopted a strategy to close Midfield within five years and move its residents to an alternative location.

In 2009, towards that end, the City began planning for the development of the East Hills Mobile Home Park (“ East Hills ”). By 2014, however, the City had abandoned its plans for the construction of East Hills due to financial constraints. [ 9 ] On March 10, 2014, City Council made the decision to close Midfield as of September 30, 2017. The City’s stated reason for this closure was to redevelop Midfield due to its failing Infrastructure, which makes the land’s continued use as a mobile home park undesirable.

City Council has since rezoned Midfield for purposes other than use as a mobile home park. [ 10 ] On May 27, 2014, the City provided an informal letter advising Midfield residents of the community’s closure (the “ Closure Letter ”). This Closure Letter states that the failing Infrastructure makes the continued operation of Midfield unfeasible, and the land will therefore be redeveloped for purposes other than use as a mobile home park.

The Closure Letter also informs the residents of Midfield of some of the resources available to assist them in their relocation, including $10,000 as part of the Midfield Closure Program, up to $10,000 for the moving or demolition of residents’ mobile homes, up to $500 for legal costs associated with the Closure Program, as well as other assistance provided by Homewood Solutions. [ 11 ] On September 15, 2016, the City provided Midfield residents with formal notice of the park’s closure as of September 30, 2017 (the “ Termination Notice ”).

The Termination Notice states that residents must vacate Midfield so that the City can remove the failing Infrastructure and commence “preliminary stripping and grading of the Midfield Mobile Home Park lands.” It was issued in accordance with the requirements of the Act , which imposes a 365 day notice requirement before the City can take vacant possession of Midfield. [ 12 ] On September 20, 2017, Mr. Prediger filed this application on behalf of himself and the other residents of Midfield.

It seeks to halt the eviction of Midfield’s residents and/or obtain monetary damages due to their eviction. [ 13 ] On September 25, 2017, Justice Eamon of this Court ordered, among other things, that any resident of Midfield remaining in the park beyond the closure date of September 30, 2017 must pay back-rent at a per diem rate based on their existing rent obligations. [ 14 ] On September 30, 2017, Midfield was formally closed and all of its tenancies were terminated in accordance with the Termination Notice.

As of November 22, 2017, Calhome estimates there are still residents occupying approximately ten sites at Midfield, of which the occupants of seven of those sites have no known plans to vacate the park. B. Positions of the Parties [ 15 ] The Applicant argues that the closure of Midfield is both procedurally invalid and contrary to section 15(1) of the Charter . As a result, the Applicant asks this Court to find that the Termination Notice was not in compliance with the notice requirements in the Act , which would necessitate the issuance of a new 365 day notice period by the City.

The Applicant also seeks compensation for the destruction of equity caused by the invalid Termination Notice. Further, the Applicant seeks monetary damages on the grounds that the

closure of Midfield violates its residents’ section 15(1) equality rights, and argues the principles of expropriation should apply to the closure of Midfield. [ 16 ] The Applicant’s position is premised on the argument that the City acted in bad faith by deliberately failing to maintain Midfield’s Infrastructure. This was done so that the City could justify closing a vulnerable, poverty-stricken community that City Council has disapproved of from the start. [ 17 ] In regards to the breach of the Act , the Applicant argues that the City had no valid justification for closing Midfield.

It failed to meet its statutory obligation to maintain the Infrastructure, does not require vacant possession to repair that Infrastructure, and has no valid alternative purpose for the use of the land in the near future. The Termination Notice is therefore invalid.

This invalid Notice has caused many residents to unwittingly vacate Midfield and destroy or move their mobile homes, which has resulted in a loss of equity necessitating compensation. [ 18 ] In regards to the breach of the Charter , the Applicant argues that the City deliberately neglected Midfield’s Infrastructure and targeted the community for closure because City Council views its residents as “trailer trash” who need to be displaced from Calgary.

As a result, the City’s deliberate, discriminatory course of action has violated residents’ equality rights as an analogous disadvantaged group under section 15(1) of the Charter . This violation should be rectified through monetary compensation for the residents’ loss of their property due to their unconstitutional eviction. [ 19 ] The Respondents reject the Applicant’s characterization of both the City’s actions and the requirements of the Act .

They argue that the City did not act in bad faith when closing Midfield, satisfied all of the requirements of the Act , and, beyond that, the City even offered Midfield residents additional relocation assistance that they were not otherwise entitled to under the Act . Further, the Respondents argue that the closure of Midfield does not violate the Charter because the City did not act in a discriminatory manner and Midfield’s residents do not qualify as an analogous group that can be discriminated against under section 15(1) . [ 20 ] The Respondents have also made several preliminary arguments.

Of particular note is the contention that this Application is essentially a collateral attack on a decision of City Council. Therefore, the Respondents take the position that the Applicant is really arguing for judicial review of the decision to close Midfield, which was made in 2014 or, at worst, on September 15, 2016.

Such a challenge is barred by the six month limitation period for judicial review pursuant to Rule 3.15(2) of the Alberta Rules of Court , Alta Reg 124/2010. [ 21 ] Meanwhile, Calhome has brought its cross-application seeking an order declaring that, among other things, the residents of Midfield still residing in the park have breached their tenancy agreements. As a result, they should be ordered to leave and pay any back- rent owing for the period they have remained beyond the Midfield’s official closure.

Calhome asks that the remaining residents should be made to leave Midfield within the next few weeks. [ 22 ] In response to the cross-application, the Applicant argues only that, should the cross-application be granted, the remaining residents of Midfield be allowed additional time to secure alternative accommodations. Considering that it is winter and the Christmas season, the Applicant suggests that the remaining residents be given until February 2018 to vacate Midfield. III.

ISSUES [ 23 ] The hearing of this matter raises three issues that must be addressed: 1) Is this application a collateral attempt at judicial review and, therefore, barred by the six month limitation period found in Rule 3.15(2) ? 2) Did the Respondents provide the residents of Midfield with valid notice of eviction in accordance with the requirements of the Act ? 3) Did the Respondents decision to close Midfield and evict its residents breach section 15(1) of the Charter ? IV.

ANALYSIS 1) Is this Application Actually a Judicial Review and Therefore Barred by Rule 3.15(2)? [ 24 ] The Respondents argue that this application is more appropriately characterized as a judicial review of the decision to close Midfield, which was made by City Council on March 10, 2014.

As a result, since the Originating Application was filed in 2017, this application should be dismissed as outside of the six month limitation period for seeking judicial review. [ 25 ] Rule 3.15 governs the procedure for seeking judicial review before this Court: Originating application for judicial review 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review: (

a) an order in the nature of mandamus , prohibition, certiorari , quo warranto or habeas corpus ;

(

b) a declaration or injunction.

(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period. ... [ 26 ] Based on Rule 3.15, there is clearly some merit to the Respondents’ argument regarding the proper characterization of this application. Both the Originating Application and submissions of counsel illustrate that the real issue here is the decision of City Council to close Midfield.

The majority of the Applicant’s arguments focus on the conduct of City Council in making that decision. [ 27 ] For example, the argument that the Termination Notice is invalid appears to be largely informed by the belief that City Council acted in bad faith, which removes any valid justification for closing Midfield and makes the Termination Notice itself invalid.

Further, the Applicant is seeking a variety of forms of relief, including “ Certiorari or Mandamus in respect of the decision made by the City,” which are clearly public law remedies. [ 28 ] As a result, I agree with the Respondents’ contention that this application should more appropriately be characterized as a judicial review and, therefore, is barred by the six month limitation period in Rule 3.15(2) . Despite this finding, however, I still believe that the residents of Midfield deserve to have their concerns addressed.

I will therefore turn now to the merits of the other issues. 2) Was the Termination Notice Valid and in Accordance with the Requirements of the Act ? [ 29 ] The Applicant argues that the City has breached the Act in two ways: (

a) The City has failed to maintain Midfield’s Infrastructure in accordance with its obligation under

section 18(d)(iii) of the Act ; and (

b) The City’s stated reason for issuing the Termination Notice does not correspond with the valid justifications listed in section 13(1)(

a) of the Act and section 2(2) (

c) of the Regulations . [ 30 ] I will address each of these arguments in the context of the relevant legislative framework. A.

Section 18(d)(iii) of the Act : Failure to Maintain the Infrastructure [ 31 ] First, I will address the Applicant’s argument that the Respondents failed to meet their obligation to properly maintain the Infrastructure, which the City then used as an excuse to close Midfield. The Respondents’ relevant obligation is found in

section 18(d) (iii) of the Act , which reads as follows: Landlord’s covenants 18 The following covenants of the landlord form part of every tenancy agreement: ... (

d) that throughout the tenancy the landlord shall take all reasonable steps ... (iii) to maintain all electric, plumbing, sanitary, heating, fuel and other facilities supplied by the landlord sound and fit for the purposes for which they are intended, ... [ 32 ] The Applicant’s position that the Respondents breached

section 18(d)(iii) stems from the City’s 2006/2007 decision to refrain from further investment in Midfield’s Infrastructure. This relates to the Applicant’s overarching allegation that the City has acted in bad faith towards the residents of Midfield. The Applicant, however, was unable to provide sufficient evidence that the City either failed to meet its obligation under

section 18(d)(iii) or acted in bad faith. [ 33 ] I find nothing unreasonable about how the City has acted in regards to the Infrastructure. There have been warnings that Midfield’s Infrastructure was failing since as early as 2002, and the Applicant has not presented sufficient evidence to show that this was the result of any action or inaction on the part of the Respondents. Frankly, the 2006/2007 decision not to invest any more money in improving Midfield’s Infrastructure is not surprising given that City Council decided to close Midfield at about the same time. B. Section 13(1)(

a) of the Act : Validity of Redeveloping the Land [ 34 ] Next, I will address the Applicant’s argument that the Termination Notice does not meet the requirements of section 13(1)(

a) of the Act because the City has no specific intention for the future use of the land. The process by which the City can close Midfield and evict its residents is governed by sections 7 and 13 of the Act .

[ 35 ]

Section 7 reads as follows: Termination by landlord 7(1) A notice under this Part from a landlord to a tenant to terminate a periodic tenancy is of no effect unless the termination is for one or more of the prescribed reasons or for the reasons set out in

section 13 or 14.

(2) A landlord who gives a notice under this Part to a tenant to terminate a periodic tenancy for one or more of the prescribed reasons or for the reasons set out in

section 13 contravenes this Act if the tenant vacates the mobile home site and the reasons set out in the notice are not carried out within a reasonable time after the termination date set out in the notice. ... [ 36 ] Section 13(1)(

a) reads as follows: Notice to terminate for specific purposes 13(1) A landlord may terminate a periodic tenancy of a mobile home site located in a mobile home park by serving a notice of termination on the tenant at least 365 days before the day named in the notice of termination if termination of that tenancy is sought (

a) for the purpose of obtaining vacant possession of all of the mobile home sites located in that mobile home park in order to use the mobile home sites otherwise than as mobile home sites, ... [ 37 ] The Applicant’s position that the Respondents breached section 13(1)(

a) relates to the claim in the Closure Letter and Termination Notice that Midfield was being closed to redevelop its land. The Applicant argues that the City does not have a specific, imminent, alternative use for Midfield’s land, which is an implied requirement of section 13(1)(a). In other words, the City needs to know exactly what it wants to do with the land and when it wants to do it. [ 38 ] In Howe v 3770010 Canada Inc , 2008 BCSC 330 , the British Columbia Supreme Court dealt with an issue conceptually similar to the one currently before me today.

Specifically, a landlord attempted to close a mobile home park and its residents challenged the validity of the eviction notice under BC’s Manufactured Home Park Tenancy Act , SBC 2002, c 77 [ the BC Act ]. The Court in Howe inevitably upheld a previous arbitrator’s decision that found the only requirement under the BC Act was that the landlord has the intention to use the land for a purpose other than a mobile home park. There was no implied requirement to show a specific intended future use. [ 39 ] I interpret the requirements of section 13(1)(

a) of our Act in the same way that the Court in Howe interpreted the BC Act . I do not agree with the Applicant’s characterization of section 13(1)(a). The Applicant has not provided any evidence of an implied requirement for a specific, imminent, alternative use for the land. Instead, I prefer the narrow

interpretation of the Act advanced by the Respondents. Accordingly, section 13(1)(

a) only requires the City to have a legitimate intention to use Midfield for a purpose other than as a mobile home park. [ 40 ] Section 13(1)(a)’s intention requirement is met based on the City’s plans for the redevelopment of the Winston Heights- Mountview neighbourhood. Intention is further evident in that City Council has already rezoned Midfield for purposes other than use as a mobile home park. Section 13(1)(a)’s temporal requirement is also met based on the fact that the Termination Notice was issued on September 15, 2016, which is more than 365 days before Midfield’s closure.

In fact, the residents of Midfield have been aware of the closure date since receiving the Closure Letter in 2014. As a result, there does not appear to be any deficiencies with the City’s reasoning in the Termination Notice. C. Section 2(2)(

c) of the Regulations : Validity of Removing the Infrastructure [ 41 ] Finally, I will address the Applicant’s argument that the Termination Notice does not meet the requirements of section 2(2) (

c) of the Regulations because that

section does not account for the removal of the Infrastructure. [ 42 ] Section 2(2)(

c) reads as follows: Termination of periodic tenancies ...

(2) For the purposes of

section 7 of the Act, a landlord may terminate the periodic tenancy of a tenant for one or more of the following reasons: ... (

c) utilities on the mobile home site of the tenant are to be installed, repaired or improved and it is not reasonable to do the work unless the site is unoccupied; ... [ 43 ] The Applicant’s position that the Respondents breached section 2(2) (

c) relates to the validity of requiring vacant possession in order to remove the Infrastructure. The Applicant argues that “removing” is not the same thing as “installing, repairing, or improving,” and does not require vacant possession to accomplish anyways. On this point, I agree with the Applicant in part.

[44] I do not see how, based on the Respondents’ narrow

interpretation of the legislation, section 2(2)(

c) can be read ascontemplating the removal of the Infrastructure for redevelopment purposes. Completely removing the Infrastructure appears antitheticalto installing, repairing, or improving the Infrastructure, which implies continued use. [45] With that said, however, I still find that the Termination Notice is valid.

The Notice states that the reason for termination is toremove the Infrastructure and conduct “preliminary stripping and grading of the Midfield Mobile Home Park lands.” This is allconsistent with intention and preparation for redevelopment pursuant to section 13(1)(a), which I have already found to be a valid reasonfor eviction. [46] Simply put, the realities of municipal planning often require elected officials to decide to redevelop certain parts of our city,which is a decision they have a public mandate to make.

If I were to interpret the Act to require a specific intention for redevelopment,and impose an imminence threshold prior to taking vacant possession, it would make municipal development a practical impossibility. [47] The City has well established plans to redevelop Midfield into something other than a mobile home park. It has been workingtowards that end for more than a decade. The Respondents presented convincing evidence of the need to remove Midfield’sInfrastructure, evaluate the condition of its land, and make additional preparations before further progressing with redevelopment.

This isnot a rapid process, as is often the case when government is involved, but it is a justifiable reason for eviction under the Act. 3) Does the Closure of Midfield Violate Section 15(1) of theCharter? [48] The Applicant argues that the closure of Midfield violates section 15(1) of the Charter because City Council’s decisiondiscriminates against mobile home residents. This argument is premised on the position that the City is obligated to provide utilityservices to Midfield’s residents under the Act, yet has decided to close Midfield rather than continue to maintain the Infrastructure.

Thesame decision would not have been made if this were any other Calgary community in similar circumstances. [49] The Applicant’s argument is also premised on the position that the City’s refusal to pay compensation to the residents ofMidfield is discriminatory, as the City would have to compensate any other landowner when expropriating their home.

In other words,the decision is unfair because the City would pay compensation if taking the land of someone who owns a semi-detached home, butrefuses to pay compensation to those Midfield residents who own mobile homes. [50] Section 15(1) of the Charter reads as follows: Equality rights 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the lawwithout discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age ormental or physical disability. ... [51] In R v Kapp, 2008 SCC 41 at para 17, citing Law v Canada (Minister of Employment & Immigration), (SCC), [1999] 1 SCR 497 (SCC), the Supreme Court of Canada outlined the two-part test for showing discrimination under section15(1):

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? [52] I will first address part one of the Kapp test. A. Living in a Mobile Home Park is not an Analogous Ground under Section 15(1) [53] In Andrews v Law Society (BC), (SCC), [1989] 1 SCR 143 (SCC), the Supreme Court held that an analogousground is one that is similar to the grounds explicitly listed in section 15(1).

Further, in Corbiere v Canada (Minister of Indian &Northern Affairs), (SCC), [1999] 2 SCR 203, 1999 CarswellNat 663 at para 13 (SCC), the Supreme Court clarifiedthat an analogous ground requires a “personal characteristic that is immutable or changeable only at unacceptable cost to personalidentity.” [54] In other words, to satisfy the first part of the Kapp test, the residents of Midfield must be discriminated against due tosomething about them which is involuntary, or that they cannot change without great difficulty, such as their religion.

In his textbook,Constitutional Law of Canada (Toronto: Carswell, 2007) at 5-22 [the Book], Professor Peter Hogg notes that this standard requiresdiscrimination based on “what a person is rather than what a person does.” Being a resident of a mobile home park clearly does not meetthis standard. [55] I recognize that, as the Applicant suggests, television shows like Trailer Park Boys may perpetuate negative stereotypes aboutmobile home residents. I also have no doubt that those stereotypes are completely untrue.

That does not, however, justify extendingsection 15(1) protections to people solely because of their decision to live in a mobile home park. A mobile home park resident beingforced to choose a comparable housing alternative is not the same as, for example, forcing someone to change their marital status orsexual orientation.

[ 56 ] Therefore, I find that being a resident of a mobile home park does not qualify as an analogous ground pursuant to section 15(1) . Since the Applicant has failed to satisfy the first part of the Kapp test, I need not address the second part. B. The Principles of Expropriation do not Apply in the Circumstances [ 57 ] I will briefly address the Applicant’s argument that the principles of expropriation should apply to the closure of Midfield.

The Applicant suggests that the City should be required to pay the residents of Midfield the same compensation as it would have to pay any other landowner when expropriating their property. This argument, however, has no basis in law. [ 58 ] The Respondents are correct in noting that there is an important difference between a leasehold interest, which is what the residents of Midfield possess under their tenancy agreements, and a fee simple interest, which is what an owner of expropriated land would normally possess.

This difference may create an unfair distinction in treatment under the law, but remedying that unfairness is not the role of this Court. [ 59 ] In his Book at 55-22, and referring specifically to the application of section 15(1), Professor Hogg further elaborates on my point: It is true that individuals may claim to be treated unfairly by the law for conditions that are their own responsibility, but this kind of claim even if fully justified does not warrant a constitutional remedy.

This kind of claim is the daily fare of politics, and is best remedied not by judges but by elected and accountable legislative bodies. [ 60 ]

Section 44 of the BC Act requires a landlord to pay compensation to mobile home park residents before evicting them. The Alberta Legislature, however, has not seen fit to include a similar provision in our own Act .

Instead, our Legislature has decided to impose a 365 day notice requirement when evicting mobile home residents, which the government-of-the-day felt was sufficient to “strike a reasonable balance between adequate protection for the mobile-home owner and the preservation of the proprietary rights of the landowner”: Alberta, Legislative Assembly, Alberta Hansard , 19th Leg, 4th Sess (May 3, 1982) at 916-17 (Mr. Zaozirny). [ 61 ] In other words, the Applicant’s complaints about a lack of compensation should be directed at the Province and not the City.

To its credit, the City has provided the residents of Midfield with tens of thousands of dollars in financial assistance that it was under no statutory or legal obligation to otherwise provide. V. CONCLUSION [ 62 ] I find that the City’s decision to close Midfield is legally valid. The Applicant was unable to prove bad faith on the part of the City, there was nothing deficient about the Termination Notice, and there has been no violation of section 15(1) of the Charter . Accordingly, this application is dismissed. [ 63 ] I also grant Calhome’s cross-application in part.

The one caveat being the date by which the remaining residents must leave Midfield. I recognize that this has been a trying period for the Midfield community. It would be neither practical nor humane for me to force Midfield’s remaining residents out of their homes only days before Christmas, as Calhome suggests. I am therefore setting February 19, 2018 as the deadline by which the remaining residents of Midfield must leave the park.

That should hopefully provide them enough time to make necessary alternative living arrangements. [ 64 ] The parties may speak to costs within 45 days if they cannot come to an agreement amongst themselves. Heard on the 22 nd day of November, 2017. Dated at the City of Calgary, Alberta this 8 th day of December, 2017. C.L. Kenny J.C.Q.B.A. Appearances: Matthew Farrell for the Applicant

James T. Floyd and Danielle T. Gallo for the Respondent, the City of Calgary Cassandra Sutter for the Respondent, Calhome Properties Ltd.