GFL Environmental Inc v Wheatland County, 2019 ABQB 976

Court of Queen’s Bench of Alberta Citation: GFL Environmental Inc v Wheatland County, 2019 ABQB 976 Date: 20191218 Docket: 1901 09980 Registry: Calgary Between: GFL Environmental Inc. and Gail Anne Cleeve Plaintiffs/Applicants - and - Wheatland County Defendant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ I. Introduction [ 1 ] GFL Environmental Inc (“GFL”) has operated a compost facility (the “Facility”) in Wheatland County (the “County”) since June 1, 2017. Ms.

Gail Ann Cleeve is the registered owner of the land the Facility is on. On July 3, 2019 the County issued both a remedial order and a stop order against GFL and Ms. Cleeve (the “July 3 Remedial Order” and the “July 3 Stop Order”). Two days later, on July 5, 2019, the County issued another remedial order and another stop order against GFL and Ms. Cleeve (the “July 5 Remedial Order” and the “July 5 Stop Order”).

[2] The July 3 Remedial Order alleged unacceptable conditions at the Facility including noxious odours, a leachate pond, andthe storage of sulphur. The July 3 Stop Order alleged that developments, as defined in the Municipal Government Act, RSA 2000, c M-26 (“MGA”), were occurring without the necessary development permit and were therefore in contravention of Wheatland’s Land UseBylaw, No 2016-01 and

section 683 of the MGA. The alleged unauthorized developments included stockpiling feedstock, failing toproperly dispose of feedstock in a timely manner (the “Legacy Pile”), and storing waste at the Facility. [3] Both the July 3 Stop Order and the July 3 Remedial Order required GFL and Ms. Cleeve (the “Applicants”) to ceaseaccepting feedstock, to process the Legacy Pile at the Facility within 90 days, to cease activities not authorized by the AlbertaEnvironment and Parks registration, to send progress reports to the County, to ensure leachate does not escape the Facility, and todevelop an air monitoring program.

The July 3 Remedial Order, in addition to these requirements, also required the Applicants to deliverto the County the results of the air monitoring program, an odour contingency response plan, and some further records of the Facility. [4] The July 5 Remedial Order and the July 5 Stop Order contained the same allegations as the July 3 Remedial and StopOrders; however, with the additional information that counsel had communicated, on July 4, 2019, that GFL intended to continue toaccept feedstock at the Facility and that the County had received advice that soil and liquid on site should not be disturbed.

The July 5Remedial Order ordered the Applicants cease any activity, until further notice given by the County, that would cause ground disturbanceand to not remove any soils or liquids from the site until further notice by the County. The July 5 Stop Order ordered the same, with theadditional order that the Applicants must, on notice, remove or process all feedstock. [5] The Applicants sought judicial review for all four of these orders. These are my reasons on their application for judicialreview. At issue in this application is the doctrine of adequate alternative remedy.

This doctrine states that “[j]udicial review isdiscretionary and an application for judicial review should be declined if an adequate statutory right of appeal exists”: Foster v Alberta(Transportation and Safety Board), 2006 ABCA 282 at para 14, citing Harelkin v University of Regina, (SCC), [1979]2 SCR 561. This doctrine is at issue in this application because both remedial and stop orders have a statutory appeal process. If judicialreview is available, I must decide the merits of the application. II.

Procedural History [6] Remedial orders and stop orders are issued under different legislative authority and have separate statutory appeal processes.This separation is key to the Applicant’s argument for judicial review, so it will be helpful to set out both the processes and where theoriginal four orders are at the time of writing. [7] Remedial orders exist under the bylaw powers of municipal districts under the MGA. The July 3 and 5 Remedial Orderswere issued pursuant to sections 545 and 546(0.1) of the MGA and the County’s Nuisance and Unsightly Property Bylaw, No 2016-51(Nuisance Bylaw).

Remedial orders may be reviewed by Wheatland County Council (the “Council”) under

section 547 of the MGA andsection 6.1 of the Nuisance Bylaw. The Applicants pursued this route and requested a review by the Council. The Council heardsubmissions and on September 3, 2019, the Council cancelled the July 5 Remedial Order and affirmed the July 3 Remedial Order. Thisdecision of Council is appealable to the Court of Queen’s Bench, pursuant to

section 548 of the MGA. The Applicants have filed thisappeal on the remaining July 3 Remedial Order as of the writing of this judgment. [8] Stop orders exist under the planning law powers of municipal districts under the MGA. The July 3 and July 5 Stop Orderswere issued pursuant to

section 645 of the MGA. Stop Orders can be appealed to the County’s Subdivision and Development AppealBoard (“SDAB”) under sections 685 and 686 of the MGA. The Applicants pursued this route of appeal and on November 8, 2019, theSDAB cancelled the July 5 Stop Order and varied the July 3 Stop Order. The decision of the SDAB is appealable to the Court of Appealof Alberta on a question of law or jurisdiction, pursuant to

section 688 of the MGA. At the time of writing the Applicants had not filed anappeal. [9] Although both the July 5 Remedial Order and the July 5 Stop Order have been cancelled, leaving only the July 3 RemedialOrder and the July 3 Stop Order, this judicial review applies to all four orders. III. Doctrine of Adequate Alternate Remedies [10] The first question before me is whether judicial review is available to the Applicants.

The doctrine of adequate alternateremedies is one of a number of rules which prevents parties from “proceed[ing] to the court system until the administrative process hasrun its course”: Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at para 31.

The basic rule for this particulardoctrine is that: “[i]f there is a clear right of appeal, and the appeal would be an adequate remedy, only in very exceptional circumstanceswill the courts grant judicial review instead”: Merchant v Law Society of Alberta, 2008 ABCA 363 at para 3. [11] Both remedial and stop orders have clear statutory appeal processes; remedial orders can be appealed to Council and then tothis Court and stop orders can be appealed to the SDAB and then to the Court of Appeal.

Therefore, the remaining issues are whetherthose statutory appeals are adequate remedies and, if so, whether there are exceptional circumstances such that this Court may consideran application for judicial review, notwithstanding that adequate alternative review procedures are available. A. Whether the alternative remedy is adequate [12] The Applicants argue that the available statutory appeals are not an adequate remedy because of the County’s use of bothremedial and stop orders.

The primary argument that the Applicants advance is that the County’s use of both Remedial and Stop Ordersis an abuse of process and that the statutory appeal process is inadequate because it cannot account for this abuse of process because the

two types of orders are considered separately. I have grouped the arguments made by the Applicants into three categories: (1) that the combined impact cannot be considered on appeal, (2) that the situation faced by the Applicants cannot be remedied by either appeal process acting alone, and (3) that having two separate appeals risks inconsistent results. 1.

Whether the combined impact of both remedial and stop orders can be addressed through the statutory appeals [ 13 ] The Applicants argue that the alleged abuse of process cannot be considered in the separate appeal processes because it is the combination of the County’s use of the two types of orders that is the source of the abuse of process.

The Applicants argue that the parallel appeal processes are concerned with different considerations and each decision maker on appeal will not consider the strategy of the County in issuing both Stop and Remedial Orders. [ 14 ] This argument must fail because the merits of the Applicants’ position can be raised under each appeal process. If, as the Applicants argue, the combined effect of the alleged abuse of process renders each of the Orders invalid, then that validity will be assessed on each appeal.

The underlying factual situation, which the Applicants argue invalidates the Orders, does not disappear in a consideration of one order, just because the decision maker is not considering all of the Orders at once. [ 15 ] The administrative decision makers in the statutory appeals “have…the obligation to decide necessary questions of law raised before them”: Chippewas of the Thames First Nation v Enbridge Pipelines Inc , 2017 SCC 41 at para 37 . This includes the alleged abuse of process or other grounds of invalidity for the Orders.

Any challenges the Applicants have to the administrative decision maker’s manner of application or conclusion can be brought through the statutory appeal to the Courts. [ 16 ] I recognize that the appeals to the courts are limited in the statutory process. Appeals from the Council are on a standard of patent unreasonableness and appeals from the SDAB are on questions of law or jurisdiction. These limitations do not exclude consideration of the merits of the Applicants’ argument.

The Applicants are not guaranteed “the most robust and efficacious remedy that the applicant can dream of”: Gateway Charters Ltd (Sky Shuttle) v Edmonton (City) , 2012 ABCA 93 at para 13 , merely that an adequate remedy is available, which they only receive by proving their case on its merits. [ 17 ] The Applicants seek to challenge the validity of the orders. That validity can be considered using the statutory appeal process and therefore the Applicants have not shown that the available remedy is inadequate. 2.

Whether the separate statutory appeals acting alone can remedy the Applicants’ situation [ 18 ] The Applicants further argue that the available statutory appeal process is not an adequate remedy because each appeal process is unable, acting alone, to remedy the alleged abuse of process. They argue that the statutory appeal process for the Stop Orders cannot cancel the Remedial Orders, and vice versa. [ 19 ] This argument must fail because the remedy the Applicants seek from this judicial review, that is, the setting aside of all Orders issued against them, is available through the statutory appeals process.

Remedial orders can be cancelled by the council: MGA , s 547(2). Stop orders can be revoked by the SDAB: MGA , s 687(3)( a.4 )(c). The ability to set aside all the Orders issued against the Applicants exists between the two appeal processes. [ 20 ] This separation does not make the remedy inadequate because the merits of Applicant’s argument will be heard. The appeal process for the Remedial Order does not require the ability to set aside the Stop Order, because that consideration is for the appeal process of the Stop Order.

Each process does not need the ability to cancel the parallel Order because, to the extent the underlying alleged abuse of process is shown, it can set aside the Order that is properly before them. [ 21 ] While it is not possible for a single body to grant the Applicants what they seek, the two processes combined can provide the Applicants with complete redress. Therefore, the Applicant’s argument must fail. 3. Whether the separate appeals pose the risk of inconsistent results [ 22 ] The Applicants raised the concern that the separation of the two processes poses the risk of contradictory or inconsistent results.

Consequently, judicial review is necessary to consider the Orders all at once. [ 23 ] This argument too must fail. The concern that the outcome of the statutory appeal process will be unsatisfactory does not allow a party to opt out of the statutory process. It is “[a] fundamental principle of administrative law…that the statutory scheme established by a Legislature or Parliament must be used; it is not discretionary”: Pridgen v University of Calgary , 2012 ABCA 139 at para 166 , McDonald JA.

The purpose of the doctrine of adequate alternative remedies is that the administrative process must be exhausted before judicial review is sought: CB Powell Limited at para 30 . [ 24 ] A similar concern was disposed of in Merchant . Mr. Merchant sought judicial review of a sanction decision, instead of following the statutory appeal to the Benchers of the Law Society. He was concerned that the Benchers may not properly hear his appeal. The Court of Appeal commented that he offered “no ground for that speculation”: at para 22. The Court reasoned that if the appeal did proceed improperly, Mr.

Merchant had a direct appeal to the Court of Appeal: at para 22. [ 25 ] This reasoning from Merchant applies here. A speculation that the separate appeal processes may result in an unsatisfactory result for the Applicants is not sufficient grounds to allow them to bypass the statutory appeals altogether. To allow a party to seek “[j]udicial review before completing statutory administrative processes risks fragmentation, delay, expense, and a judicial process which might have been academic”: Merchant at para 32 .

Therefore, this argument of the Applicants must also fail. [ 26 ] I have now gone through the arguments of the Applicants that the available statutory process is not adequate and each argument has failed. Thus, the Applicants have failed to show that the existing remedy is not adequate.

B. Is this an exceptional circumstance? [27] Having found that the legislation provides for an adequate alternate remedy, which has not yet been exhausted, I turn next tothe question of whether exceptional circumstances exist, such that this Court might engage in judicial review. I note that exceptionalcircumstances are rare “and the threshold for exceptionality is high”: CB Powell at para 33. [28] The Applicants’ argument for exceptional circumstances is that the review of the Stop and Remedial Orders must be heardtogether because of the alleged abuse of process.

The reasoning behind this argument is faulty for the reasons given in Merchant. [29] When Mr. Merchant sought judicial review, in spite of the available appeal to the Benchers of the Law Society, he argued thatthere was an exception to the doctrine of adequate alternate remedy when the administrative process is guilty of bias. The Court ofAppeal refused to allow this as an exception.

It reasoned that to allow this as an exception would require the reviewing court to determinethe merits of the application, in this case to determine if bias existed, before it determined if judicial review was available at all:Merchant at para 10. This suggested exception “would let every litigant move for judicial review and be heard on the merits (withoutappealing), merely by alleging bias or nullity in his Originating Notice for Judicial Review. That would be more than an exception to theusual rule; it would largely repeal the rule”: Merchant at para 11. [30] The same problem exists for the Applicants.

If an alleged abuse of process allows a party to proceed directly to judicialreview, the mere allegation of such would require the reviewing court to determine whether an abuse of process took place in order todetermine if judicial review was available. Such a determination would require a hearing of the merits of the judicial review, thusnegating the doctrine of adequate alternative remedy. For this reason, the Applicants’ argument that this is an exceptional case isunworkable and must be dismissed. C.

Conclusion on the doctrine of adequate alterative remedy [31] There are statutory appeal processes available for both the Remedial and Stop Orders. The Applicants unsuccessfully arguedthat these remedies were inadequate. Furthermore, given the absence of exceptional circumstances, I cannot grant judicial review andtherefore need not rule on the merits of the Applicant’s application. IV. Variation of the Order [32] A final issue remains. Subsequent to the SDABs November 8, 2019 decision to vary the July 3 Stop Order, the County serveda notice of variation on November 23, 2019.

This notice of variation purported to vary the July 3 Remedial Order under

section 4.7 of theNuisance Bylaw. The variation changed the July 3 Remedial Order to allow for the acceptance of feedstock to the extent necessary toprocess the Legacy Pile, provided that the processing is in a manner acceptable to the County, and to require the processing of theLegacy Pile by June 30, 2020. These varied terms align the July 3 Remedial Order with the terms of the July 3 Stop Order, as varied bythe SDAB.

The parties made submissions before me on whether the County has the authority to make this variation of the July 3Remedial Order, despite it being confirmed by the Council on September 3, 2019. [33] Although the variation of the July 3 Remedial Order to align with the July 3 Stop Order, as varied by the SDAB, wouldappear to favour the Applicants, they oppose the ability of the County to make the amendment, in my view, because the amendedRemedial Order weakens their argument for judicial review.

Counsel for the Respondent concedes that they must rely on the amendedRemedial Order on any appeal. [34] The Applicants argued that the County does not have the ability to vary the July 3 Remedial Order because it has already beenappealed to the Council and may still be appealed to the Court of Queen’s Bench, and is therefore functus officio. The principle offunctus officio provides that a final decision of an administrative tribunal cannot be reopened: Chandler v Alberta Association ofArchitects, (SCC), [1989] 2 SCR 848 at 860-62.

However, the doctrine also provides that a tribunal may revisit itsdecision “if authorized by statute”: Chandler at 861. [35] Authorization by statute does not need to be explicit. Under the doctrine of jurisdiction by necessary implication: …the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, allpowers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created bythe legislature.

ATCO Gas & Pipelines Ltd v Alberta (Energy & Utilities Board), 2006 SCC 4 at para 51 (citations omitted). [36] The source of authority for the County to issue the varied July 3 Remedial Order is

section 4.7 of the Nuisance Bylaw, whichstates: …at any time where the Chief Administrative Officer or an Officer finds that a Person is contravening this Bylaw, the ChiefAdministrative Officer or Officer may issue a Remedial Order to that Person. This

section does not explicitly grant the power to vary an existing remedial order. However, implicit authority is not so easily dismissed. [37] As stated in the

preamble, the purpose of the Nuisance Bylaw is “regulating, controlling and abating nuisances and remedyingunsafe and unsightly properties”. The

preamble also states that “Wheatland County Council deems it expedient and in the public interestto pass a bylaw to establish and enforce minimum standards relating to the state of maintenance of property”. [38] Remedial orders are tools for the County to ensure residents are meeting these minimum standards. If a remedial order

becomes fixed and not open to variation once it has been issued, including an appeal to Council, the County is hindered in its ability to regulate and control nuisances. For example, if a remedial order was issued and the nuisance is remediated and a contravention no longer exists, the County must, as a practical matter, retain the ability to vary or cancel the remedial order. Regulating and controlling nuisances within the County requires an ability to respond to changing circumstances. The ability to respond necessarily includes the ability to vary an existing remedial order.

Therefore, the power of variation is a practical necessity for the accomplishment of its goal of regulating, controlling and abating nuisances. For this reason, the County had implicit authority to vary the July 3 Remedial Order and is not prevented from doing so by the operation of the doctrine of functus officio . V. Conclusion [ 39 ] The Applicants sought judicial review of four Orders issued against them. Two of those Orders have been cancelled in the course of the appeal processes. The Applicants have failed to show that the available statutory appeal processes for the Orders are not adequate.

They have also failed to show that this is an exceptional circumstance. [ 40 ] The County had implicit authority under the Nuisance Bylaw to vary the July 3 Remedial Order and is not prevented from doing so by the doctrine of functus officio . [ 41 ] The Application for judicial review is dismissed. VI. Costs [ 42 ] In the normal course, the Respondent would be entitled to costs of this application as the Applicant’s application for judicial review was dismissed. In this case however, I am not prepared to award costs to the Respondent.

There will be no costs of this application. [ 43 ] I asked counsel to keep me advised as to the outcomes of the other processes while my decision was under reserve. While those decisions do not affect my reasoning on whether this matter was appropriate for judicial review, it is clear that there were issues in how the County proceeded in this matter from the outset, which included orders, which on their face, were in conflict with each other and would make it difficult if not impossible to abide by.

None were rescinded or revised prior to statutory review. [ 44 ] As I indicated to counsel during the hearing of this matter, these parties need to continue to work with each other on an ongoing basis for many years to come. Rather than innumerable orders, review and appeal processes, which consume human and financial resources, consideration should be given to the parties working with a facilitator to resolve their ongoing concerns. Heard on the 29 th day of November, 2019. Dated at Calgary, Alberta this 18 th day of December, 2019. C.L. Kenny J.C.Q.B.A. Appearances: Steven T.

Robertson for the Plaintiffs/Applicants Joshua A. Jantzi for the Denfendant/Respondent