Special Areas Board v. ATCO Power Canada Ltd., 2018 ABQB 1035

Court of Queen’s Bench of Alberta Citation: Special Areas Board v. ATCO Power Canada Ltd., 2018 ABQB 1035 Date: 20181221 Docket: 181001014 Registry: Red Deer Between: Special Areas Board Applicant (Respondent) - and - ATCO Power Canada Ltd. and Central Alberta Regional Assessment Review Board Respondents (ATCO Power - Applicant) _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.D.

Slawinsky _______________________________________________________ OVERVIEW [ 1 ] ATCO seeks to strike the underlying application by the Special Areas Board for judicial review of a decision of the Central Alberta Regional Assessment Review Board, claiming that the application is out of time. The Special Areas Board maintains that its application was commenced and served within the time limits required by the recently amended provisions of s. 470 of the Municipal Government Act , RSA 2000, c. M-26 (the “ MGA ”), effective January 1, 2017.

The assessment review board takes no position in this application and made no representations. [ 2 ] The facts are not in dispute. The assessment review board heard proceedings over 10 days commencing May 7, 2018. The

written decision was dated July 3, 2018. The assessment review board gave notice of that decision to the parties by email at 5:09 pm onJuly 10, 2018. The email notice was also received on July 10, 2018. The Special Areas Board filed its Originating Application forjudicial review on September 5, 2018. The application was sent by both email and registered mail to all necessary recipients onSeptember 5, 2018. All registered mail was received by the respective recipients on September 6, 2018. In its written submissions,ATCO acknowledges service was effected on September 5, 2018. [3] The calculation of time is also not in dispute. Taking into account the provisions of s. 22 of the

Interpretation Act, RSA2000, c. I-8, s. 605 of the MGA, the Labour Day holiday on September 3, 2018, and timelines that might otherwise fall on a weekend, theapplication for judicial review was filed and served 61 days after the date on the assessment review board decision, 57 days after noticeof the decision was emailed, and 57 days after notice of the decision was received.

ISSUES [4] The issues are as follows: 1) Does the commencement of the time limit for judicial review applications in s. 470 of the MGA begin to run from the date writtenon the decision by the assessment review board, the date notice of the decision is given by the assessment review board, or the date thedecision is received by the parties? 2) Is the application for judicial review out of time? 3) If the application is out of time, can the court extend the time to file and serve the application for judicial review?

DISCUSSION 1) Does the commencement of the time limit for judicial review applications in s. 470 of the MGA begin to run from the datewritten on the decision by the assessment review board, the date notice of the decision is given by the assessment review board, orthe date the decision is received by the parties? [5] Section 470(1) of the MGA prescribes the applicable time limit for filing and serving applications for judicial review ofdecisions of assessment review boards. The

section reads as follows: Judicial Review 470(1) Where a decision of an assessment review board is the subject of an application for judicial review, the application must be filedwith the Court of Queen’s Bench and served not more than 60 days after the date of the decision. [6] This is the first judicial consideration of the amended s. 470 of the MGA with respect to the calculation of the time limit forjudicial review. The determination of this issue turns on the

interpretation of the phrase “date of the decision”, which was not present inthe prior version. This phrase is not defined in the MGA, and no evidence of legislative history or intent was provided.

Section 508.1 ofthe MGA was the only other

section brought to my attention that contains the phrase “date of the decision.” I was advised that it has notbeen judicially considered. [7] ATCO refers to the modern approach to statutory

interpretation discussed in Calgary (City) v Alberta (MunicipalGovernment Board), 2008 ABCA 187. It submits that the clear and unambiguous wording of the

section means the 60 day time limitbegins to run from the date contained on the written decision, resulting in a deadline of September 4, 2018. [8] ATCO further argues that its

interpretation of s. 470 is supported by comparison of the current wording of the

section to itsformer wording. Citing Arctos & Bird Management Ltd. v Banff (Town), 2017 ABCA 300, ATCO argues that the amendments enactedby the legislature must be interpreted purposively. It contends that by amending the section, the Legislature intended to prescribe alimitation period that commences with the date contained on the decision, regardless of the giving of notice of the decision or the receiptof such notification by the parties. [9] The Special Areas Board submits that the amendments to s. 470 encompass a number of changes to the procedure for reviewof assessment review board decisions. It argues that giving a purposive

interpretation to the amendments does not lead to the conclusionthat the limitation period runs from the date on the decision. It contends that the limitation period runs from the date the parties actuallyreceive notice of the decision, citing Bowen v City of Edmonton (City) Council (1977), (AB CA), 75 DLR (3d) 131(Alta. C.A.).

Alternatively, the Special Areas Board argues that the limitation period runs from the date the assessment review boardgives notice of the decision. [10] Previously, s. 470 was entitled “Appeals” and it concerned appeals to the Court on questions of law or jurisdiction, rather thanjudicial review. It required a two-step process beginning with an application for leave to appeal, followed by the actual appeal. It set outa time limit for filing the application for leave to appeal. The time limit required filing “within 30 days after the persons notified of thehearing receive the decision under

section 469...” [11] The new

section 470 repealed and replaced the former provisions in their entirety. It is now entitled “Judicial Review” andsets out a time limit to file and serve the application. The application must be filed with the court “and served not more than 60 daysafter the date of the decision.” There is no longer any reference to s. 469. However, s. 469 remains in the MGA, with an inconsequentialamendment not material to this decision. [12] The current

section 469 of the MGA reads as follows: Notice of Decision

469 The clerk must, within 7 days after an assessment review board renders a decision, send the board’s written decision and reasons,including any dissenting reasons, to the persons notified of the hearing under section 462(1)(

b) or (2)(b), as the case may be. [13] In

summary, a number of changes were made by the Legislature to

section 470 of the MGA. The two-step process involvingleave to appeal was eliminated, and all references to “appeal” were removed. Judicial review was substituted. The

section sets a periodof time for commencing an application for judicial review, which is longer than the previous deadline for a leave to appeal applicationbut significantly shorter than the six month filing deadline contained in Rule 3.15 of the Alberta Rules of Court for judicial review. [14] Both parties acknowledge, and I agree, that with the exception of the time limit for commencing the application, the rulesrelated to the conduct of judicial review applications contained in

Part 3, Subdivision 2 of the Alberta Rules of Court govern theprocedure for such applications arising from assessment review board decisions. [15] Both parties cite Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29, at paras 27-29, insupport of their respective positions regarding the commencement of the time limitation for judicial review. Athabasca Chipewyaninvolved the

interpretation of Rule 753.11 of the Alberta Rules of Court, the precursor to the current Rule 3.15 regarding applications forjudicial review. Rule 753.11 provided that “...the application for judicial review shall be filed and served within six months after thedecision or act to which it relates” (emphasis added). Athabasca Chipewyan held that: [27] In Alberta, Rule 753.11 has been strictly construed. Unless there is a clear and stated obligation to provide notice of a decision,the six-month limitation runs from the date of the decision.

If there is a clear obligation to provide notice then the limitation runs fromthe date notice is given: [Babiuk v. Calgary (City) (1992), (AB KB), 133 A.R. 21 (Alta. Q.B.)]; [A.U.P.E. v. Alberta(2001), 2001 ABCA 309]; [Urban Development Institute v. Rocky View (Municipal District No. 44), 2002 ABQB 651]; Johannessonv. Alberta (Workers' Compensation Board Appeals Commission) (1995), (AB KB), 175 A.R. 34 (Alta. Q.B.);Edmonton (City) v. Gaffney (1999), 1999 ABQB 649 , 313 A.R. 161, 4 M.P.L.R. (3d) 99 (Alta. Q.B.).

In Peixeiro v.Haberman, (SCC), [1997] 3 S.C.R. 549 (S.C.C.), the Supreme Court confirmed that when a limitation runs from anevent which clearly occurs, without the regard to the injured party's knowledge, the discoverability principle does not apply. 28 In our view, the Legislature intended the limitation to operate without regard to the potential applicant’s knowledge. The rule isoperative upon the “decision or Act” occurring, not the date the decision or act is communicated to potential parties. This is theinterpretation given by the Nova Scotia Court of Appeal to the equivalent rule applicable in Nova Scotia.

In Central Halifax CommunityAssociation v. Halifax, 2007 NSCA 29, 280 D.L.R. (4th) 506, leave denied [2007] S.C.C.A. No. 279, the court gave four reasons forconcluding that the clock starts on the making of the decision: (

a) the clear language of the provision; (

b) the extraordinary nature of thecertiorari remedy and the corresponding need for definitive timelines; (

c) the generous six month window to apply; and (

d) the Court’sinherent jurisdiction to address the extraordinary abuse if necessary: at para. 21. 29 We conclude that there was no need for the case management judge to consider the issue of constructive notice as notice wasnot required. [16] Applying Athabasca Chipewyan, the Special Areas Board argues that since s. 469 of the MGA mandates a clear and statedobligation to provide notice of the assessment review board decision, the earliest commencement of the 60 day limitation is the datenotice of the decision is given.

Conversely, ATCO submits that the “event which clearly occurs” to trigger the start of the limitation isthe date written on the decision. However, in Athabasca Chipewyan, there was no clear and stated obligation to provide notice of thedecision at issue. [17] Rule 753.11 has been replaced with the current Rule 3.15. The relevant portion of Rule 3.15(2) provides that “...anOriginating Application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 monthsafter the date of the decision or act...” (emphasis added).

Athabasca Chipewyan is applicable to the current Rule 3.15 (see, F. PrinsPotatoes Ltd v Agriculture Financial Services Corporation, 2015 ABQB 335 and Al-Ghamdi v College and Association of RegisteredNurses of Alberta, 2017 ABQB 685). [18] In Al-Ghamdi, there was a clear and stated requirement to give notice of a decision.

Goss J. held the limitation period underRule 3.15 commenced from the date notice was given, regardless of the recipient’s actual knowledge, citing the Bowen line of cases (seealso, Calgary (City) v Alberta (Municipal Government Board), 2004 ABQB 85, Switzer's Investment Ltd. v Calgary (City), [1999] A.J.No. 1662 (Alta.

Q.B.) and Gaffney). [19] In Al-Ghamdi, Goss J concluded on this point as follows at paras 95-96: 95 This makes logical sense; a limitation period requires some certainty, and the date notice is given is more certain than when apotential applicant opens his or her email, checks their fax machine, or looks in their spam folder. As Veit J noted in Johannesson . . . atpara 34: The rules establish a six month limit within which a motion for judicial review must be brought.

This limitation reflects a policy decisionto the effect that, when a properly constituted tribunal makes a decision, that decision is binding; any challenge of that decision must bemade promptly because the rights and responsibilities of many persons may be affected by the decision. All of those people who aredirectly and indirectly affected by such a decision cannot be left in limbo indefinitely. There must be closure, finality, so that everyonecan move on.

It is therefore important to set aside or challenge a position within six month of the day when the decision is issued. (Emphasis added) 96 I conclude that the limitation period runs from the date notice was given . . .

[ 20 ] ATCO provided a number of cases from different jurisdictions in support of its position. I find that they are of limited assistance. These cases predate Athabasca Chipewyan , involve different legislation, or lack a clear and stated requirement to give notice of the decision at issue. [ 21 ] When enacting the new s. 470 of the MGA , the Legislature was presumed to have understood the effect of using “date of the decision” in both the MGA and the Rules.

As stated by the Court of Appeal in applying the judicial review framework to the MGA , “[t]he 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”” ( Okotoks (Town) v Foothills (Municipal District No. 31) , 2013 ABCA 222 , at paragraph 15 ). [ 22 ] The Legislature is also presumed to know from Athabasca Chipewyan that the clear and stated requirement in s. 469 to provide notice of assessment review boards means that under s. 470 the giving of notice is a relevant factor in the determination of the commencement of the limitation period. [ 23 ] By using the same phrase “date of the decision” as in Rule 3.15(2), but specifying a different length of time for commencing judicial review applications than the Rule, I conclude that the Legislature intended to shorten the time period for commencing the application but did not intend a different meaning for the phrase “date of the decision” between the different legislation. [ 24 ] In coming to this conclusion, I also take into consideration that the Legislature used the phrase “date of the decision” rather than any of the phrases set out in other time limitations in the MGA .

These include: a. “after the date on which the written decision is given” [s. 686(1)]; b. “after the issue of the decision” [s 688(2)]; c. “after the date the decision is served on the person affected” [s. 548(1.1)]; and d. “after receipt of the written decision” [s. 678(2)] [ 25 ] This

interpretation is consistent with the administrative

interpretation of the relevant limitation period by the assessment review board itself. The decision at issue contains the following notation immediately below the signature line: This decision can be appealed to the Court of Queen’s Bench. If you wish to appeal this decision, you must follow the procedure found in

section 470 of the MGA which requires an application for judicial review to be file and served within 60 days of being notified of the decision . Additional information may also be found at www.albertacourts.ab.ca. [Bold emphasis added] [ 26 ] I find that “date of the decision” in the context of s. 470 of the MGA means the date notice of the decision is given under s. 469 , applying Athabasca Chipewyan and Al-Ghamdi . 2) Is the application for judicial review out of time? [ 27 ] The commencement of the 60 day limitation period in this case is July 10, 2018.

The application for judicial review by the Special Areas Board was filed and served 57 days after that date. The application was therefore within the 60 day limitation period. 3) If the application is out of time, can the court extend the time to file and serve the application for judicial review? [ 28 ] As I have determined that the application for judicial review was filed and served within the limitation period, it is unnecessary for me to consider this issue.

However, had I found that the application was out of time, the case law in my view is persuasive that actual receipt, awareness or knowledge of the decision is irrelevant to the computation of the limitation period set out in s. 470 of the MGA . The giving of notice of the decision is “an event which clearly occurs, without the regard to the injured party’s knowledge” as contemplated by the Supreme Court of Canada in Peixeiro , rendering the discoverability principle inapplicable. CONCLUSION [ 29 ] The application by ATCO to strike the judicial review application by the Special Areas Board is dismissed.

The Special Areas Board is entitled to its costs under

Schedule C of the Alberta Rules of Court . If either party seeks a different measure of costs, they may speak to that issue within 60 days of the date written on this decision. Heard on the 30 th day of November, 2018. Dated at the City of Red Deer, Alberta this 21 st day of December, 2018.

M.D. Slawinsky J.C.Q.B.A. Appearances: Monique Morin for the Applicant, ATCO Power Ltd. Carol M. Zukiwski for the Respondent, Special Areas Board