Strathcona County v Apollo Plastering & Stucco Ltd, 2021 ABQB 366

Court of Queen’s Bench of Alberta Citation: Strathcona County v Apollo Plastering & Stucco Ltd, 2021 ABQB 366 Date: 20210507 Docket: 1903 25380 Registry: Edmonton Between: Strathcona County Applicant - and - Apollo Plastering & Stucco Ltd and Mr. John A Kosolowski, QC, Delegate of the Minister of Agriculture and Forestry, under The Weed Control Act, SA 2008, CW-5.1, and Appointed under the Government Organization Act, RSA 2000, CG-10,

Section 9 Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.A. Sulyma _______________________________________________________ [ 1 ] The Applicant municipality seeks to quash the decision of the Minister of Agriculture and Forestry Delegate, John A Kosolowski, QC, issued June 17, 2019 on the basis that such is not only unreasonable but also incorrect on a number of grounds. [ 2 ] This matter started as a result of the County’s action under the provisions of the Regulations of the Weed Control Act of Alberta.

That Act prescribes a process to deal with both prohibited noxious weeds and noxious weeds in Alberta. This scheme provides for the issuance of an inspector’s notice, provides for appeals of such or a debt recovery notice. [ 3 ] The inspection process and the steps taken commenced on June 12, 2018. It went to appeal to the County’s Agricultural Service Board and thereafter, pursuant to the Act to the Minister’s delegate, who issued the decision regarding Apollo’s appeal on June

13, 2019. [ 4 ] The Defendant Apollo Plastering and Stucco Ltd (Apollo) is a corporation with two shareholders and directors, Ann Kovacic and Secer Foco. They had been given notice of proceedings throughout the process, had made submissions to the authorities at the various levels, including filing affidavits in the Application for Review before me. [ 5 ] These two individuals, either in affidavits or in oral submissions, did not address the legality of the Application to allow for Affidavit evidence made here.

I made a decision on that point based on the submissions of the County, and the submissions of the Counsel of the Delegate, who took neutral positions throughout this process. I allowed the County’s further affidavit evidence to be filed. [ 6 ] At the stage of hearing the substantive submissions, I left the submissions of the two self-represented individuals to the end of the hearing. Their affidavit evidence consisted of an attack on the merits of the initial inspection and further decisions made regarding the presence and control of noxious weeds.

I cautioned the two individuals that those matters were not before me. I asked that they confine their submissions to the legal arguments raised by the County and they did not. At all stages of speaking, these two individuals remained focused on the merits of the inspection and the results, including photographs submitted to me purporting to rebut the inspector’s finding at a certain time. As a result, I cannot find their written or oral submissions relevant to the legal questions raised in this review.

Therefore, I will not particularly refer to such. [ 7 ] I have already commented on the nature of counsel for the Delegate’s submissions. Ms. Burkett in her submissions, both by Brief and in Court, stressed that her client’s submissions were informative rather than taking any position on the grounds of Appeal and the merits of such. She did agree with the County’s submissions regarding the standard of review and the nature of the standard of review, which is reasonableness. [ 8 ] I will deal first with the Application to admit affidavit evidence.

The County acknowledged that such is generally not admissible in Judicial Reviews. However, it submits that the evidence in Ms.

Wahlstrom’s Affidavit falls within the category of admissible evidence identified by Slatter J (as he was then) in White v Alberta (Workers’ Compensation Board) , 2006 ABQB 359 .That is, that affidavits are admissible in Judicial Review where they are used to establish the grounds for the Judicial Review: Affidavits are allowed on judicial review to show bias, or some defect in the way the hearing was conducted, or sometimes that the decision was patently unreasonable (where that is not apparent from the record), or to show other types of reviewable error.

Affidavits are not generally permitted just to show that a different decision would have been better than the one made. [ 9 ] The County submits that Ms. Wahlstrom’s Affidavit identifies: a. The issue of the requirement of an “Enforcement Notice” was not raised by the parties nor did the Delegate put it to the parties; b. The Delegate did not put the issue of the County’s authority to spray the crop or whether the County was required to provide a second notice prior to enforcing the Inspector’s Notice to the parties; c.

The Delegate did not put the issue of the validity of the Inspector’s Notice to the parties; d. The Delegate did not put the issue of destruction of the crop to the parties; and e. The Delegate did not put the issue of “collateral attack” to the parties. [ 10 ] Further, the Delegate’s decision was based on issues not raised by any party and without factual foundation.

The County submits that this is a breach of procedural fairness as noted by Pentelechuk JA in Mahal & Sons Inc v Edmonton (City of) , 2020 ABCA 414 at para 16 where she states: It is common ground that the SDAB did not seek further submissions from Mahal on the SDAB’s

interpretation of its role in a de novo hearing and its reliance on s. 685(3) of the MGA, nor were these issues raised by any party. The proposed question relates to procedural fairness, a breach of which constitutes a jurisdictional error... [ 11 ] In that regard, the County points out that the impact of the Delegate’s decision as indicated through letters submitted here could not have been put before the Delegate and as his

interpretation of the Act was not put to the County to address that the County had no opportunity to provide comment on this

interpretation of the Act . [ 12 ] It was noted that there is no transcript prepared of the submissions that were made to the Ministry Delegate Ms. Wahlstrom’s Affidavit as a person having been present and giving the presentation fills that vacuum. It, of course, also states issues that were not addressed by the County before the Delegate and portions of his findings that the County had not been given an opportunity to address.

On that basis and on the whole of her Affidavit, the Affidavit meets the test of identifying a defect in the way the hearing was conducted, indicates portions of the decision that were blatantly unreasonable and as there is no transcript to show other types of reviewable error. In my view, and I ordered at the hearing, this Affidavit is admissible on the basis of the criteria noted in White . [ 13 ] In addition, I am of the view and decided that in the absence of certain issues being raised by any of the parties before the Delegate that the Delegate breached procedural fairness.

This is bolstered by the letters from two associations with an interest in this area of regulation not being able to be proffered to the Delegate. Further, I agree that as the

interpretation of the Act was not put to the County, its lack of opportunity to provide comment on the

interpretation of the Act is an alleged further breach of procedural fairness. Additionally, and finally, the issue of collateral attack was not put to the parties. [ 14 ] I have already referred to the Affidavits of the two self-represented individuals above. I did have the opportunity to review the Affidavits. The individuals did not make an application to file this additional evidence and that issue was not spoken to by either of those parties. As I have found the submissions irrelevant, I see no need to address the issue of the admission of their Affidavit evidence to the Record.

Indeed, the contents of those Affidavits are addressed to showing that different decisions would have been better than any of the

ones made in this process. That is expressly provided for as generally not admissible in Judicial Reviews. [ 15 ] At the Board level, Apollo requested the Board consider the Inspector’s Notice. However, the Board determined that that notice had not been appealed and the only notice before it was the debt recovery notice. [ 16 ] At this stage, the County submits that the Board erred in stating that an Enforcement Notice was issued to the Appellants on July 12, 2018 and the property was chemically treated by the contractor hired by the County on July 21, 2018. [ 17 ] As the Affidavit of Ms.

Wahlstrom indicates, there were no documents issued by the County to enforce the Inspector’s Notice and no notice of enforcement. In her PowerPoint presentation, she refers to the enforcement of the Inspector’s Notice on July 12, 2018 through spraying the property. This was the third option given by the County to the property owners to control the weeds. [ 18 ] That led to the debt recovery notice issued as provided for under the Act .

The Board did correctly confirm that the County had validly issued the debt recovery notice which was the only issue before them. [ 19 ] In doing so the Board answered a request by the two self-represented individuals that the Board consider the inspector’s notice in its deliberations. The Board determined that it was limited to considering only what Apollo had appealed before it. That was not the Inspector’s Notice. Rather it was the recovery notice.

The County submits that the Board correctly concluded that the time to appeal the inspector’s notice had expired without appeal and the Board was therefore limited by the scope of its powers under the legislation to consider the debt recovery notice only. [ 20 ] When the Board’s decision was appealed to the Minister and the Delegate heard the appeal, he concluded that the Board erred in restricting the scope of the appeal to matters relating to the quantum of the debt recovery notice. [ 21 ] The Delegate went on to make certain findings of fact and concluded that the County failed to establish and properly follow the steps required in the Act as he concluded the County was required to send a second notice to Apollo following the Inspector’s Notice; secondly, that the Inspector’s Notice was invalid as the County council did not approve of the spraying until after the inspector’s notice had been issued; and thirdly, the County did not have authority to allow their contractor to spray the crop and no authority to issue the debt recovery notice.

He set aside the debt recovery notice. [ 22 ] The County submits here that accordingly the Delegate erred in the following ways: a. he exceeded his jurisdiction by extending the statutory time limit to appeal the Inspector’s Notice without any authority to extend the appeal period; b. he erred by collaterally attacking the enforcement process for the Inspector’s Notice, instead of considering the only matter before him, which was the Debt Recovery Notice; and c. he erred in finding that the Act required a second notice to be issued to a landowner before enforcement of the Inspector’s Notice could occur. [ 23 ] The standard of review applicable to the Judicial Review of the Delegate on all issues is reasonableness.

Canada (Minister of Citizenship and Immigration v Vavilov , 2019 SCC 65 . That standard applies to any questions of statutory

interpretation which the tribunal may make and it is the Court’s role to examine the tribunal’s

interpretation to determine if that analysis is reasonable. [ 24 ] A standard of review of reasonableness is a “robust form of review”: Vavilov at para 13 . In conducting a reasonableness review, the Court is to consider the decision “in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”: Vavilov at para 15 . The Supreme Court identified two types of fundamental flaws in a decision that will render it unreasonable: a.

When the decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it; and b.

When a decision is not based on internally coherent reasoning which is both rational and logical. [ 25 ] Here it is submitted that the Delegate exceeded his jurisdiction by reviewing the Board’s decision regarding the debt recovery notice because the Delegate expanded the scope of the appeal to include the validity of the Inspector’s Notice, even though the time to appeal the Inspector’s Notice had expired. [ 26 ] Here the deadline to appeal the Inspector’s Notice had expired, the notice was not appealed so the appeal applied only to the debt recovery notice.

The County argues that there is no legislative connection between the appeal of an inspector’s notice, which deals with the remedies to address the control of noxious weeds, and the debt recovery notice, which deals only with the cost of enforcement. Without specifying the authorities, the Delegate incorrectly stated that Apollo’s appeal of the debt recovery notice included the jurisdiction to review the inspector’s notice.

In that regard, he was clearly in error, and exceeded his jurisdiction in reviewing the debt recovery notice and he improperly expanded the scope of the appeal to include the validity of the inspector’s notice, even though the time to appeal that had expired. [ 27 ] In the same instance, he failed to consider the governing statutory scheme – the Act and Regulations , and in doing so, acted contrary to the express provisions of the statutory scheme.

That resulted in a decision which is both unreasonable and incorrect. [ 28 ] The County points out that the right of appeal of the inspector’s notice is within the time specified in the notice for doing the thing required by the notice or 10 days, whichever is less: Regulation , s 11(2).

[29] The Delegate’s decision extended the limitation period for appealing the inspector’s notice to after enforcement of the same.The administrative decision makers cannot disregard the law as enacted by Provincial legislatures and as the limitation to appeal theInspector’s Notice had ended, the Inspector’s Notice had become final. Thus, the Delegate had no authority to extend the timeline for theappeal of the Inspector’s Notice or to treat it as the subject of the appeal of the debtor recovery notice.

Clearly, he extended the limitationperiod of appeal without authority by statute and other than as proscribed by that statute. [30] The County submits that accordingly the Board was correct in limiting its consideration of the enforcement of the inspector’snotice to the method of enforcement and its relevance to the debt recovery notice – not the validity of the Inspector’s Notice which wasoutside its jurisdiction to consider.

Logically, the Board did not have authority to consider the inspector’s notice and neither did theDelegate. [31] I agree that his decisions as noted above were unreasonable given he ignored the limits of his jurisdiction and untenable inlaw. [32] The second ground is that there are important policy reasons for the scheme outlined in the Act and Regulations. The effect ofthe Delegate’s decision threatens this authority and changes the legal authority of an inspector to take actions to enforce the inspector’snotice. Clearly this could expand potential liability for the inspector or his authorizing body.

The Delegate’s decision, if not overturned,extends the statutory limitation period for challenging an inspector’s notice. Such an extension not being provided by law extends theprocess and imperils the certainty of the Act as if a municipality issues a debt recovery notice, the validity of the inspector’s notice itselfcould be challenged after enforcement. There is nothing in the Act or Regulation which allows for such and there is no reasonable basisin the Legislation that would allow a decision maker to infer such a proposition. [33] His

interpretation of the Act allowing this extended period to challenge the Inspector’s Notice is both unreasonable andincorrect. [34] The County submits that the unreasonableness is illustrated when a municipality does not issue a debt recovery notice. If thereis no such notice, the enforcement of the inspector’s notice could not be challenged. The whole system is rendered uncertain if the appealof an inspector’s notice occurs outside of the statutory appeal period.

All this leads to an absurd result which is contrary to the verypurpose of the Legislation. [35] I find the Decision of the Delegate on this issue is unreasonable. [36] The Delegate also incorrectly relied on Apollo’s stated intention to cut the crop as justifying why they did not appeal. Thisintention is an irrelevant factor for consideration of their appeal rights. Clearly, a land owner loses his appeal rights if he does not appealwithin 10 days of receiving an inspector’s notice.

This undermines the scheme of the Act, specifically compliance and the right to appealand thus his decision in that regard is unreasonable and incorrect because it purports to extend the statutory time for appeal. [37] I have already stated that by Ms. Wahlstrom’s affidavit, this proposition was not put to the parties, yet the Delegate proceededto reach a conclusion in the absence of putting the proposition to the parties. In making that decision, he incorrectly relied on R vConsolidated Maybrun Mines Limited, (SCC), [1998] 1 SCR 706.

That case indeed established that the ignoring ofprocedural mechanisms established to guarantee that a person to whom an order is directed can assert his or her rights that results in aperson failing to comply with an order issued under the Act cannot attack the validity of the order by way of defence after failing to availhimself of the appeal mechanisms available under the Act. [38] Rather, the enforcement of the Inspector’s Notice by the Act requires a ruling that the appeal period has expired.

This is toensure the inspector’s authority to enter onto private property and deal with the crop and weeds as they deem fit. [39] In doing so, the Delegate incorrectly concluded that the Board is the appeal body for both inspector’s notices and debtrecovery notices and that the appeal of the latter allows the Board to re-examine an inspector’s notice. However, there is no requirementthat members of the Board will be the same for an appeal of both, and an appeal of the debt recovery notice is a separate procedure froman appeal of an inspector’s notice. Such an

interpretation can raise potential conflicting decisions. He also incorrectly stated that s 19(2)placed no limitations on an appeal.

That is not so, as it explicitly states that an appeal must be “in accordance with the regulations” andthe Regulations provide a timeline to appeal an inspector’s notice or debt recovery notice. [40] The Delegate further suggested that a second notice should be issued to Apollo following the County Council’s writtenapproval of the destruction of the crop, but the Act does not require a second notice, nor does it require Council approval occur before aninspector’s notice is issued. [41] This was an improper imposition of a requirement for the County Council’s consent, which is not required prior to theissuance of an inspector’s notice, only prior to enforcement of the inspector’s notice.

The Delegate breached procedural fairness indeciding issues that were not raised by the parties and where the parties did not have an opportunity to comment on the issue. Heimproperly read in a statutory requirement contrary to the Act and Regulations. [42] The

interpretation undermines the whole scheme of the Act and is therefore unreasonable. [43] The decision of the Delegate is quashed. Heard on the 23rd day of February, 2021. Dated at the City of Edmonton, Alberta this 7th day of May, 2021.

D.A. Sulyma J.C.Q.B.A. Appearances: Gwendolyn Stewart-Palmer, Q.C. Kathleen Elhatton-Lake and Aizlynn Regan of Shores Jardine LLP for the Plaintiff Melissa N Burkett of Justice and Solicitor General for the Defendant, Minister of Agriculture and Forestry Secer Foco Self-Represented Anka (Ann) Kovacic Self-Represented