Boll v Woodlands County, 2021 ABQB 406

Court of Queen’s Bench of Alberta Citation: Boll v Woodlands County, 2021 ABQB 406 Date: 20210521 Docket: 1603 22391 Registry: Edmonton Between: Jonas Boll & Pipistrel Aircraft Canada Inc. Applicants (Respondents) - and - Woodlands County, Woodlands County Municipal Planning Commission, and Woodlands County Subdivision and Development Appeal Board Respondents (Applicants) _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice S.N. Mandziuk _______________________________________________________ I. Introduction . 2 II. Background . 3 Facts . 3

Proceedings Before the MPC and SDAB .. 3 Court of Appeal Proceedings . 3 The Present Proceedings . 4 Three Applications Required . 6 III. Positions of the Parties . 6 Framing the Issue . 6 MPC Position . 7 SDAB Position . 7 Boll and Pipistrel Position . 7 IV. Analysis and Decision . 8

Summary Dismissal 8 The Rule . 8 Limitation Argument 9 Adequate Alternative Remedy . 13 Striking Pleadings or Portions of Amended Amended Application . 15 Rule 3.68: The Law .. 15 Application of Rule 3.68 . 16 V. Costs . 16 VI.

Summary . 17 I. Introduction [ 1 ] The Woodlands County Subdivision and Development Appeal Board [SDAB] and the Woodlands County Municipal Planning Commission [MPC] apply to be removed as parties from this judicial review proceeding. [ 2 ] The SDAB seeks

summary dismissal on the basis that there is no merit to the claim against it. Alternatively, it applies to have certain portions of the Amended Amended Originating Application for Judicial Review filed February 6, 2020 [Amended Amended Application] struck out in part or in their entirety. In the further alternative, the SDAB wants its participation to be limited to the filing of and speaking to the record. [ 3 ] The MPC also applies for

summary dismissal of the claim or, alternatively, a striking of portions of the claim. [ 4 ] Both moving parties seek costs on an enhanced basis. [ 5 ] For the reasons that follow, the Amended Amended Application is dismissed, on a

summary basis, as against the MPC and the SDAB. The judicial review application will proceed without them unless they seek to be involved. II. Background Facts [ 6 ] Jonas Boll [Boll] is a director and shareholder of Pipistrel Aircraft Canada Inc. [“Pipistrel,” collectively “Boll and Pipistrel”]. [ 7 ] Pipistrel manufactures, repairs and sells specialized carbon composite aircraft (and related activities) and operates on land owned by Boll at the Whitecourt Airport [Property]. [ 8 ] The Property was purchased in 2006 and is located in Woodlands County [County]. Proceedings Before the MPC and SDAB

[ 9 ] Pipistrel submitted a development permit application (No 15-074-2015) to the County on June 1, 2015 seeking permission to construct a new hangar on the Property. The plan was to build a permanent structure to replace a temporary one. Among other things, the permit application sought a relaxation of the setbacks required under the County’s Land Use Bylaw 407/13-2013 [2013 LUB]. The County amended the 2013 LUB in November 2015 [Amended 2013 LUB]. [ 10 ] The MPC granted the development permit but did not grant the setbacks that Boll and Pipistrel were seeking.

Pipistrel unsuccessfully appealed the MPC’s decision to the SDAB. [ 11 ] On February 29, 2016, Pipistrel submitted a new development permit application (No. 15-009-2016). The permit application again sought a relaxation of the minimum setbacks required under the Amended 2013 LUB. [ 12 ] The MPC issued a Notice of Decision & Development Permit on May 3, 2016 which granted the application to build the hangar subject to 48 conditions [MPC Decision].

While the minimum setback variances to the requirements of the Amended 2013 LUB were granted by the MPC, their scope was not acceptable to Pipistrel. [ 13 ] Boll and Pipistrel then appealed the MPC’s Decision to the SDAB, filing a Notice of Appeal on May 17, 2016.

They alleged that the MPC lacked the authority to restrict the hangar development, and that the MPC Decision was ultra vires on the basis that jurisdiction over airports and development on airport lands is federal. [ 14 ] The SDAB heard the appeal of the MPC Decision on a de novo basis on June 27, 2016 in Whitecourt and issued its decision on June 30, 2016 [SDAB Decision]. The SDAB held that the setback variances sought by Boll and Pipistrel were too significant and would “materially interfere with airport operations and the use, enjoyment and value of neighbouring parcels of land” (SDAB Decision, page 3).

The approval of the permit reflected in the MPC Decision was upheld with the setbacks and other conditions specified in the development permit.

Court of Appeal Proceedings [ 15 ] Boll and Pipistrel applied to the Court of Appeal of Alberta for leave to appeal the SDAB Decision under s 688 of the Municipal Government Act, RSA 2000, c M-26 (as amended) [ MGA ]. [ 16 ] Before Berger, JA, Boll and Pipistrel argued that “the federal government has jurisdiction over aerial transportation, including the physical structure of airports and airport buildings and airport hangars [and] the County does not have the authority to pass bylaws relating to the regulation of aeronautics. […] the SDAB is similarly constrained” ( Boll v Woodlands County Municipal Planning Commission , 2016 ABCA 344 at para 4 [ Boll CA ]). [ 17 ] Permission to appeal was denied. [ 18 ] In a decision issued on November 3, 2016, Berger, JA held that:

a) The SDAB Decision would only be a nullity if the SDAB and the MPC lacked jurisdiction and the 2013 LUB is ultra vires . That would, in turn, only be the case if the subject of the development permit application – the construction of facilities on airport lands – was a matter of aeronautics and therefore subject to federal jurisdiction. b) Section 688(3) of the MGA requires an applicant for leave to appeal to establish that the appeal “involves a question of law of sufficient importance to merit a further appeal and has a reasonable chance of success.”

c) Development appeal boards are not in the category of decision-makers that enjoy the jurisdiction to decide constitutional issues under the Designation of Constitutional Decision Makers Regulations , Alta Reg 69/2006 [ DCDM Regulations ].

d) The SDAB had to accept the validity of the 2013 LUB as it lacked the power to determine its validity. [ 19 ] Berger, JA concluded (at para 10): In my opinion, it would be inappropriate for this Court on this record to pronounce upon the lawfulness of the regulation of planning matters in the vicinity of an airport. In my view, proper adjudication of that issue necessitates a constitutional challenge before the Court of Queen’s Bench . That recourse remains open to the applicants and, if pursued, might well warrant review by a panel of this Court on a proper record.

I would add only that the two “interested parties” should be advised by counsel of record that should an application be brought in the Court of Queen’s Bench, they may wish to seek status as respondents or intervenors as they see fit. [ Emphasis added ]. The Present Proceedings [ 20 ] Boll and Pipistrel filed an Originating Application for Judicial Review in the Court of Queen’s Bench on December 19, 2016 [Original Application], naming the MPC and SDAB as Respondents and alleging that the SDAB erred in law by upholding the MPC Decision (Court File No. 1603-22391 [First Action]).

This application was scheduled to be heard on April 19, 2018. [ 21 ] The relief sought in the Original Application included a declaration that the MPC and SDAB decisions were void ab initio, certiorari, quo warranto , and prohibition. [ 22 ] Prior to the scheduled application, in May, 2017, the Applicants started construction of the new hangar facility on the Property allegedly without complying with the setback conditions that had been upheld in the SDAB Decision.

[23] After construction concluded, the County amended – sometime between May 30 and June 6, 2017 – the Amended 2013 LUBand passed By-law 490/17 [2017 LUB].[1] [24] The County sent a warning letter to Boll and Pipistrel, and then a stop order on June 19, 2017, pursuant to s 645 of the MGA[Stop Order]. The Stop Order required Boll and Pipistrel to:

a) comply with the conditions of the MPC Decision;

b) apply for and receivea new development permit; or

c) remove the hangar. [25] The County registered a caveat, under s 646 of the MGA, against title to the Property in respect of the Stop Order on October2, 2017. It also filed its own Originating Application naming Boll and Pipistrel as Respondents on February 16, 2018. The Countyalleged that the Applicants failed to comply with the Stop Order and continued to contravene the County’s LUB, and sought injunctiverelief against the Applicants. [26] The judicial review application came before me on April 19, 2018.

I granted an adjournment sine die at the request of Bolland Pipistrel’s counsel to allow amendment of the Originating Application to include a challenge of the 2017 LUB so that it could beheard together with the County’s application for injunctive relief.

I seized myself with the matter. [27] Boll and Pipistrel filed an Amended Originating Application for Judicial Review [Amended Application] on September 7,2018, adding the County as a Respondent. [28] Where the original application sought declarations that the MPC Decision and the SDAB Decision were void ab initio, andsought orders for certiorari, prohibition and quo warranto, the Amended Application additionally sought a declaration that the 2013LUB (as amended) was ultra vires and void ab initio. [29] The focus at this point became the County’s LUB itself. [30] Boll and Pipistrel filed an additional Originating Application for Judicial Review on June 5, 2019, naming only the County asRespondent and seeking parallel relief with respect to the County’s LUB [Court File No. 1903-11747, the “Second Action”]. [31] On June 20, 2019, the County cross-applied for advice and directions, taking the position that no relief against the SDAB andthe MPC was requested in the Amended Application.

This cross-application was set down before me on June 27, 2019. [32] An Amended Originating Application for Judicial Review was then filed by Boll and Pipistrel on June 25, 2019 in Court FileNo. 1903-11747 as well as an Amended Statement of Claim in Court File No. 1903-11748. [33] A number of allegations and assertions are made against the MPC and the SDAB at paragraph 31 of the AmendedApplication. [34] On June 27, 2019, I directed Boll and Pipistrel that any further amendments to the pleadings had to be made by July 9, 2019.

Ialso directed the parties to apply for case management, requesting me to be the Case Management Justice.

This request was granted. [35] At a Case Management Conference held on January 20, 2020, I directed Boll and Pipistrel to file and serve their AmendedAmended Application by January 27, 2020, without prejudice to arguments concerning the validity or appropriateness of theamendments themselves. [36] On February 6, 2020, the Applicants filed the Amended Amended Application in the First Action seeking an order to quashthe MPC and SDAB decisions (certiorari); an order of prohibition – (the prohibition relief is no longer being sought); and an orderdeclaring the Amended 2013 LUB to be ultra vires the County, as well as void ab initio.

Alternatively, the Applicants seek an order tothe effect that if the LUB is found intra vires, this Court should, notwithstanding that finding, approve the Applicants’ new hangar asreasonable in all of the circumstances and exempt from the LUB. [37] In the Second Action the amendment requested relief in the event that the 2017 LUB is constitutional. Three Applications Required [38] There are three applications that are ultimately required to decide the various matters in dispute in Court File Nos. 1603-22391(the within proceeding); 1803-03497; 1903-11747; and 1903-11748 (Amended Statement of Claim):

a) The present application to determine whether the MPC and SDAB are proper parties to the judicial review application;

b) An application concerning the scope and extent of certain affidavit evidence; and

c) The judicial review application itself. [39] The latter two applications will be scheduled before me, in that order, on future dates. III. Positions of the Parties Framing the Issue [40] The judicial review application is about whether or not the land use bylaws are ultra vires the jurisdiction of the County asinfringing on the federal power over aeronautics under s 91 of the Constitution Act, 1867, 30 & 31 Vict, c 3, as confirmed inJohannesson v Rural Municipality of West St Paul, (SCC), [1952] 1 SCR 292.

[ 41 ] The challenge to the County’s LUB is governed by s 536(1) of the MGA , which provides: A person may apply to the Court of Queen’s Bench for

a) a declaration that a bylaw or resolution is invalid, or

b) an order requiring a council to amend or repeal a bylaw as a result of a vote by the electors on the amendment or repeal. [ 42 ] This application is about the proper parties to the judicial review. [ 43 ] Neither the jurisdiction nor the decisions of the MPC and the SDAB are being challenged in the judicial review application. MPC Position [ 44 ] The MPC’s position is that the claim should be summarily dismissed, and it should be removed as a party from these proceedings under Rule 7.3 of the Alberta Rules of Court , Alta Reg 124/2010 [ Rules of Court ], as there is no merit to the claim. There are two grounds on which the MPC bases its position:

a) Boll and Pipistrel filed their application outside of the limitation period prescribed in Rule 3.15(2);

b) Boll and Pipistrel had an adequate alternative remedy and no exceptional circumstances are in place that would ground judicial review of the MPC Decision. [ 45 ] Additionally, and alternatively, certain portions of the Amended Amended Application should be struck under Rule 3.68. SDAB Position [ 46 ] The SDAB also advances its position under Rule 7.3 arguing that its jurisdiction is not being challenged in the judicial review, the bylaw is. The SDAB upheld the MPC decision and is now functus officio . Berger, JA in Boll CA confirmed the jurisdiction of the SDAB and found that it acted within its jurisdiction.

A decision on the vires of the County’s LUB will not affect the SDAB’s jurisdiction. [ 47 ] Additionally, and alternatively, Rule 3.68 applies, and the Court should strike portions of the Amended Amended Application – specifically paragraph 31 in its entirety, and portions of paragraphs 42 and 43 – that refer to the SDAB Decision on the basis that there is no reasonable chance that this argument will succeed. [ 48 ] As an alternative, if the SDAB continues to be a party, it asks to be included in the action on a limited basis, filing and speaking to the record only.

Boll and Pipistrel Position [ 49 ] Boll and Pipistrel counter that the application for judicial review arises from the County “passing a By-Law improperly invading federal jurisdiction in the field of aeronautics and using its municipal resources to conscript Pipistrel and Boll into a process and compliance with municipal objects in the construction of their hangar that would form part of the aeronautic facilities and services at the Whitecourt Airport and be subject to the regulations of Canada’s civil air navigation system.” [ 50 ] By this reasoning, the MPC and SDAB are proper parties to the judicial review process because they are necessary for the adjudication of the matter, their interests are affected, it is normal practice to name decision makers as parties where their jurisdiction is under attack and it was originally necessary to serve the MPC and SDAB because they made the decisions.

They would wish to be heard given the jurisdiction issue, so they should be parties. [ 51 ] The Applicants also seek, in the alternative, declaratory relief that the Amended 2013 LUB be declared ultra vires and void ab initio ; and if this is granted, Boll and Pipistrel say, both MPC and SDAB decisions would be impacted and, as such, they should be retained as parties. [ 52 ] Boll and Pipistrel argue that the limitation period in Rule 3.15 began when internal remedies were exhausted. The SDAB Decision was issued on June 30, 2016.

The Originating Application was filed on December 19, 2016 and served prior to December 30, 2016, the limitation date. If the Court of Appeal decision denying permission to appeal is considered, then the limitation period began on November 3, 2016 and ended on May 2, 2017. Either way, the Applicants submit, Rule 3.15 does not operate to bar their application. IV. Analysis and Decision [ 53 ] I will first address the applications made under Rule 7.3 to have the action against the MPC and SDAB summarily dismissed.

Summary Dismissal The Rule [ 54 ] The relevant portions of Rule 7.3 are as follows:

(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

b) there is no merit to a claim or part of it;

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action . . . [ 55 ] The test for

summary dismissal has been canvassed extensively in the jurisprudence, both as a particular legal process and as a means to ameliorate the legal system’s functioning. [ 56 ] The Supreme Court of Canada provided a rubric for

summary proceedings in Hyrniak v Mauldin , 2014 SCC 7 [ Hyrniak ], where Karakatsanis J discussed, at para 2, the “culture shift [that is] required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case ” [ emphasis added ]. [ 57 ] Karakatsanis J clarified that: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment.

This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. ( Hyrniak at para 49 ) [ 58 ] Also, Karakatsanis, J stated that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”: Hryniak at para 5 . [ 59 ] Fundamentally, in Alberta, all civil proceedings must be considered in the context of Rule 1.2 of the Rules of Court, which emphasizes the importance of cost-effectiveness, efficiency, fairness, justice and overall efficacious functioning of the legal system. [ 60 ] Rooke, ACJ, in Bruno v Samson Cree Nation , 2020 ABQB 504 at para 191 , usefully summarized the test set out in Weir- Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 – where our Court of Appeal resolved a division in the case law – as follows: [....] Under this approach, with apologies for some duplication,

summary judgment: - Must be based or found to be appropriate and fair based on a full analysis of the facts, law and issues, and under the proper exercise of judicial discretion, where the presiding justice “has a duty to take ‘a hard look’ at the merits of a claim” (paras 29 & 44); - Is only appropriate after finding a proven factual record, if the presiding justice is “sufficiently satisfied and comfortable with the record to conclude that there is no genuine issue requiring a trial” – in other words, there must be no “real issue” for trial (paras 30-1); - A

summary judgment will not be appropriate if “the record, the facts, or the law preclude a fair disposition,” namely that the moving party has not established that there is no genuine issue requiring a trial (para 32); - Is suitable as a “means to achieve a just result,” only if the presiding justice considers that the quality of evidence and legal argument is such “that it is fair to conclusively adjudicate the action summarily” (para 34); - “The ultimate burden remains on the moving party to establish that there is no genuine issue requiring a trial, and that a fair and just adjudication is possible on a

summary basis” (para 35); and - Is available only if the presiding justice “is confident that [s/he] can fairly resolve the dispute” (para 36 - emphasis in the original – 46 & 48(d)). [ 61 ] This is not a rote or sequential process. The analysis is holistic, taking into account all of these factors ( Weir-Jones at para 47). [ 62 ] The burden of proof is on the moving parties, who in the present application are the MPC and the SDAB. The standard of proof is balance of probabilities.

I must ultimately be “left with sufficient confidence in the [record] to exercise the judicial discretion to summarily resolve the dispute”: Weir-Jones at para 47(d). [ 63 ] As stated in Hannam v Medicine Hat School District No 76 , 2020 ABCA 343 at paras 12-13 : “[m]ore specifically, if the moving party has proved the material facts on a balance of probabilities and advances law that vindicates the moving party’s position,

summary judgment is appropriate. The outcome does not have to be obvious”. Limitation Argument [ 64 ] When did Boll and Pipistrel’s time for filing and service of their originating application commence? Did Boll and Pipistrel miss the limitation period for seeking judicial review specified in Rule 3.15? If so, what is the impact? [ 65 ] Rule 3.15 states:

(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 andserved within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period. [66] The above reproduced provisions of Rule 3.15 mean: (

i) Rule 3.16 is not applicable here as it deals specifically with habeas corpus applications; and (ii) Rule 13.5 is specifically excluded under Rule 3.15. [67] Rule 13.5 provides:

(1) Unless the Court otherwise orders or a rule otherwise provides, the parties may agree to extend any time period specified in theserules.

(2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is (

a) specified in these rules, (

b) specified in an order or judgment, or (

c) agreed on by the parties.

(3) The order to extend or shorten a time period may be made whether or not the period has expired. [Emphasis added] [68] Applying accepted rules of statutory

interpretation (Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27at para 21), when Rules 3.15 and 13.5 are read together, there is no discretion for the Court in the present application for certiorari tostay, extend or shorten a prescribed time period.

This means that the Court’s or the parties’ power to vary the 6-month limitation periodin the circumstances of the within application is non-existent. [69] It was noted in ENMAX Corporation v Alberta (Labour Relations Board), 2018 ABQB 431 at para 13 that “the limitationperiod of six months has been strictly applied by the courts and cannot be extended.” [70] Veit J in Johannesson v Alberta (Workers’ Compensation Board, Appeals Commission, (1995) (ABKB), 32 Alta LR (3d) 373 at para 34, explained the rationale for the inflexibility of the 6-month limitation period: [….] The Rules establish a 6-month limit within which a motion for judicial review must be brought.

This limitation reflects a policydecision to the effect that, ordinarily, when a properly constituted tribunal makes a decision, that decision is binding; any challenge tothat decision must be made promptly because the rights and responsibilities of many persons may be affected by the decision. All ofthose people who are directly and indirectly affected by such a decision cannot be left in limbo indefinitely. There must be closure,finality, so that every one can move on.

It is therefore important to move to set aside or challenge a decision within 6 months of the daywhen the decision is issued. [71] Also, Jeffrey, J in Baker v Drouin, 2017 ABQB 204 at paras 11-17 extensively and helpfully discussed the strictness andrigidity of the 6-month limit in Rule 3.15, citing a host of similar decisions, including: Boyd v Alberta (Workers’ Compensation Board),2015 ABCA 120; Yuill v Alberta (Workers’ Compensation Appeals Commission), 2016 ABQB 369; Raczynska v Alberta (HumanRights Commission), 2015 ABQB 494; Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29, 505 AR72, at para 27; Alberta Union of Provincial Employees v Alberta, 2001 ABCA 309, 303 AR 1; Zimmer v Alberta (Workers’Compensation Board, Appeals Commission), unreported, (7 October 2015) Edmonton 1403-00907 (ABQB).

See also, Silver WillowWater Co-op Ltd v Vermillion River (County), 2018 ABQB 952 at para 3. [72] Based on the reference in Rule 3.15(2) to the “date of the decision or act” as the starting point for a party who wants to set the“decision or act” aside, the limitation period for the MPC Decision, in my view, began to run when the MPC issued its decision on May3, 2016. The Originating Application for Judicial Review to attack that decision was filed on December 19, 2016. That is more than 6months after the decision.

The filing of the appeal to the SDAB did not stop the clock. [73] The Originating Application for Judicial Review of the MPC Decision was not brought in time and there is no discretion forthe Court to extend the deadline.

The failure to file and serve the application for judicial review within the 6-month limitation period is acomplete answer to the claim against the MPC. [74] From a legal practice perspective, the application for judicial review of the MPC Decision, subject to the full right of appealto the SDAB under the MGA, s 685, could have been commenced by Boll and Pipistrel at the Court of Queen’s Bench (Rule 3.15) andthen an adjournment sought while the appeal avenues were pursued.

This appears to have been the process followed in Milner PowerInc v Alberta (Energy and Utilities Board), 2007 ABCA 265 at para 17, where the question of adequate alternative remedy offered bystatutory mechanisms and processes is seen as a “preliminary matter on a judicial review application.” That is, one can conclude that thequestion was raised in the context of the judicial review application before the Court of Queen’s Bench; and the court exercised itsdiscretion to require the applicant to pursue its challenge of the AEUB decision under the statutory appeal process prescribed by therelevant statute: ibid at para 16.

[ 75 ] Boll and Pipistrel argue that the claim against the MPC is for a declaration, not certiorari, obviating the application of the Rule 3.15 limitation period. It is conceded by the MPC in its Brief that “judicial review of a bylaw regulating public actions generally (on grounds that it is invalid because it is void) is not subject to the 6-month limitation period” (MPC Rebuttal Brief, at para 21). [ 76 ] There is case law to the effect that an application to have a bylaw declared invalid is not governed by Rule 3.15.

This is because a “decision or act” of an adjudicative tribunal is not being disputed, rather, a declaration of invalidity is being sought. [ 77 ] The question of invalidity of a Bylaw vis-à-vis Rule 3.15 was addressed by Kenny, J in Urban Development Institute v Rocky View (MD No 44) , 2002 ABQB 651 [ Urban Development ]. The Applicant in that case sought a declaration that the relevant Bylaw was invalid as it exceeded the statutory and constitutional capabilities of a municipal district.

Kenny, J held that the predecessor rule to Rule 3.15 did not apply, as this was “not an application to set aside a decision of a tribunal” ( Urban Development at para 17 ). [ 78 ] However, it is clear that certiorari is the remedy being sought here by the Applicants. They are looking to set aside the decision. There are specific references in Boll and Pipistrel’s materials to the MPC Decision being subject to judicial review. The record in relation to the MPC Decision was requested.

This is framed as a judicial review and is subject to Rule 3.15. [ 79 ] I note that the SDAB Decision was issued on June 30, 2016 and the Originating Application for Judicial Review to challenge that decision was filed on December 19, 2016. Arguably then, the application for judicial review of the SDAB Decision was brought in time, subject to the provisions of the MGA , s 688. [ 80 ]

Section 688 of the MGA reads:

(1) An appeal lies to the Court of Appeal on a question of law or jurisdiction with respect to (

a) a decision of the subdivision and development appeal board, and [….]

(2) An application for permission to appeal must be filed and served within 30 days after the issue of the decision sought to be appealed, and notice of the application for permission to appeal must be given to (

a) the Municipal Government Board or the subdivision and development appeal board, as the case may be, and (

b) any other persons that the judge directs. [….]

(3) On hearing the application and the representations of those persons who are, in the opinion of the judge, affected by the application, the judge may grant permission to appeal if the judge is of the opinion that the appeal involves a question of law of sufficient importance to merit a further appeal and has a reasonable chance of success. [ 81 ] Thus, where the issue at stake is a question of law, there is an alternative remedy available for review of the SDAB Decision at the Alberta Court of Appeal.

The implication of this is that the Applicants’ filing of an application for judicial review at the Court of Queen’s Bench is subject to the principles discussed below regarding availability of alternative remedy. [ 82 ] While the requirements of Rule 7.3 are clearly met regarding the MPC Decision, the situation is not as clear with respect to the SDAB Decision, particularly where the issue being challenged is not a question of law.

In other words, if Berger, JA had concluded that the issue brought before the Court of Appeal was not a question of law under s 688 of the MGA but a question of fact or mixed law and fact, then the Applicants could return to the Court of Queen’s Bench and proceed with judicial review.

At that point, the Court of Queen’s Bench would have to decide the application based on the calculation and reasoning that the Originating Application was filed within time. [ 83 ] That said, I have concluded that in the present case the issue concerns the validity of the Amended 2013 LUB that the SDAB relied upon to make its decision: a question of law that should be appealed to the Court of Appeal, pursuant to s 688 of the MGA . That is what the Applicants did.

Consequently, since that appeal procedure exists for the Applicants, the next inquiry devolves to the principle of adequate alternative remedy, which is discussed below. [ 84 ] The question of whether Berger, JA’s decision in Boll CA denying permission to appeal should be used as the date to calculate the limitation period becomes moot, given my findings above. In addition, and by

interpretation, Rule 3.15(2) contemplates that the limitation period to be used for calculation relates to judicial review of the administrative decision of the relevant statutory decision- maker and not the decision of the Court of Appeal. Adequate Alternative Remedy [ 85 ] Feehan J (as he then was) provided a clear

summary of the state of the law on the question of adequate alternative remedy in Spruce Grove Gun Club v Parkland (County) , 2018 ABQB 427 : [43] The law is clear that where there is an administrative right of appeal, the Court should be reluctant to exercise its jurisdiction, although that is a matter of discretion for the Court to determine (with respect to prerogative writs of certiorari and mandamus see Harelkin v University of Regina , [1979] 2 SCR 5611 at pp 592 & 593 , Chad Investments Ltd v Longson, Tammets & Denton Real Estate Ltd , 1971 Alta SCAD 39 at paras 11 and 12; with respect to judicial review see the decision of Hillier, J in Litchfield v College of Physicians and Surgeons of Alberta , 2005 ABQB 962 at paras 31 and 32 , Merchant v Law Society of Alberta , 2008 ABCA 363 at para 2 , Michalyshyn, J in Wasylyshen v Edmonton Police Service , 2012 ABQB 406 at para 40 , Campkin v College of Social Workers of Alberta , 2017 ABQB 358 at para 44 , McCarthy, J in Precision Drilling Corporation v Calgary (City) , 2011 ABQB 503 at para 7 , and Kubik, J in

Morris v 1934809 Alberta Ltd , 2018 ABQB 299 at para 5 . [44] As to the exercise of discretion to decide a matter even where there is an adequate administrative remedy, Harelkin says “the Courts ... should use restraint and should be slow to intervene” (para 32), and intervention “should generally be declined” (para 31).

Merchant says the courts should only intervene “in very exceptional circumstances.” In Wasylyshen , Michalyshyn, J indicated the court could consider a discretionary remedy if “satisfied that such a judicial recourse is required” (para 28), and in Campkin the court contemplated “special circumstances ... that would allow an exception to the test” (para 44). [ 86 ] Kubik, J addressed this issue in Morris v 1934809 Alberta Ltd , 2018 ABQB 299 (at para 5 ). In that case, the applicants sought judicial review of a subdivision and development appeal board decision.

Their appeal of a development permit denial by the municipal planning commission had been dismissed. The numbered company successfully applied for

summary dismissal under Rule 3.68. The argument was that “although this Court has inherent jurisdiction and discretion to exercise the power of judicial review, where an adequate alternate remedy exists at law, absent special circumstances, the Court should decline to exercise its discretion”: citing Precision Drilling Corporation v Calgary (City) , 2011 ABQB 503 ; Chad Investments Ltd v Longson, Tammets & Denton Real Estate Ltd , 1971 AltaSCAD 39. [ 87 ] Kubik, J. referred specifically to s 688 of the MGA , concluding that the appeal regime indeed represents an adequate alternative remedy (at para 11): Given the language of

section 688 of the Municipal Government Act , the consistent appeal provisions and time requirements at each stage of appeal, the necessity of a leave application, its particular reference to questions of law and jurisdiction, and the fact that the issue of standing falls squarely into this category I am satisfied that the appeal provisions reflect an adequate alternate remedy in this case and are designed to support efficient and timely municipal planning initiatives.

An adequate alternate remedy is not the most perfect or robust; it is the one to which the Applicant is entitled by law ( Gateway Charters Ltd. (Sky Shuttle) v Edmonton (City) , 2012 ABCA 93 ). [ 88 ] It follows that there is no claim against the MPC or the SDAB in this judicial review. They have played their role and the appeal processes under the MGA , ss 686 and 688 for the MPC and the SDAB respectively, have been exhausted culminating in Boll CA . They do not have to be parties to the within proceedings, though they can participate for the purposes of the record or to put their views on the record.

They can seek status. Once they are out of the action, they can make that application through the Case Management process. [ 89 ] I disagree with Boll and Pipistrel’s suggestion that judicial economy and the balance of convenience support their position.

It is not the role of the MPC or the SDAB to defend a decision that they did not make (the passing of the impugned land use by-law). [ 90 ] I also reject the argument that a “signal to the world” must be sent that the MPC and SDAB decisions are not valid because of the by-law, and therefore they should be parties. [ 91 ] With respect, I cannot ascribe validity to the “abundance of caution” argument that was advanced by Boll and Pipistrel’s counsel. [ 92 ] Boll and Pipistrel also state that while they acknowledge that the MPC and the SDAB cannot address the constitutionality of the LUB, it is reasonable to assume that they would want to be heard on the question of whether they acted within their jurisdiction.

Jurisdiction was already decided in Boll CA . These bodies were bound to follow the County’s LUB. [ 93 ] The fact that the MPC and the SDAB participated in the leave application before Berger, JA does note ground a requirement that these entities be parties to the judicial review. Notice to them is mandated in MGA s 688(2). Their participation in the leave application does not make them parties by extension to a judicial review of a decision that they did not in fact make, and cannot make. [ 94 ] The DCDM Regulation was enacted under the Administrative Procedures and Jurisdiction Act , RSA 2000, c A-3 ) [ APJA ].

It lists the decision makers which have jurisdiction to determine the questions of constitutional law.

Section 11 of the APJA states: Notwithstanding any other enactment, a decision maker has no jurisdiction to determine a question of constitutional law unless a regulation made under

section 16 has conferred jurisdiction on that decision maker to do so. [ 95 ] This list does not include the MPC or SDAB or analogous bodies. These bodies are not constitutional decision makers. The decision being sought by Boll and Pipistrel is a constitutional decision concerning the LUB passed by the County. It is legally impossible for the MPC or the SDAB to determine the constitutional validity of the LUB.

These bodies had to assume the validity of the bylaw: Coffman v Ponoka (County No 3) , 1998 ABCA 260 at para 10 . [ 96 ] I have considered the merits of the application and keeping the MPC and SDAB in the action as parties. I am satisfied, based on the material before me, that in all the circumstances they are not proper parties. The claim against them has no merit. The fair and just result is to grant the application for

summary dismissal. [ 97 ] The decision that is being challenged was made by the County when it enacted the by-law that Boll and Pipistrel claim is ultra vires . There is no subsisting MPC or SDAB decision that remains open to challenge in this judicial review. Striking Pleadings or Portions of Amended Amended Application [ 98 ] If I am wrong in my determination under Rule 7.3 , I turn to assess the merits of the Rule 3.68 application, which is closely tied to the Rule 7.3 application. Rule 3.68: The Law

[ 99 ] The facts and the arguments of all the parties remain largely the same; however, the Rule 3.68 application is essentially focused on deficiencies in the claim. [ 100 ] That Rule reads as follows:

(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b).

(4) The Court may (

a) strike out all or part of an affidavit that contains frivolous, irrelevant or improper information; (

b) strike out all or any pleadings if a party without sufficient cause does not (

i) serve an affidavit of records in accordance with rule 5.5, (ii) comply with rule 5.10, or (iii) comply with an order under rule 5.11.

Application of Rule 3.68 [ 101 ] The MPC seeks to have the paragraphs in the Amended Amended Application struck out under Rule 3.68: the entirety of paragraph 31, and the references to the MPC Decision in paragraph 42 and to the MPC in paragraph 43. [ 102 ] The SDAB’s application also deals with three paragraphs in the Amended Amended Application: the entirety of paragraph 31 and the references to the SDAB Decision in paragraph 42 and to the SDAB in paragraph 43. [ 103 ] Given that the commencement document or pleading in this case – i.e., the Amended Amended Application – discloses no reasonable claim against either the MPC and the SDAB as there is no subsisting MPC Decision or SDAB Decision to challenge in this judicial review application, I order that the entirety of paragraph 31, and the references to both the MPC Decision and the SDAB Decision in paragraph 42 as well as references to the MPC and the SDAB in paragraph 43 be struck out, pursuant to Rule 3.68. [ 104 ] The naming of these bodies is futile for the same reasons that the action fails under Rule 7.3 against the MPC and the SDAB.

It was brought out of time in respect of the MPC Decision and it also goes against the legal principles dealing with available alternative remedy; alternatively, it will fail on the merits as these are not the entities who made the decision or took the action that is the subject of the judicial review – i.e., the passing of the County’s LUB by the County’s Council. V.

Costs [ 105 ] The SDAB and the MPC argue for enhanced costs, even solicitor-client costs. [ 106 ] The decisions of the MPC and the SDAB are not under attack in a judicial review that questions the constitutionality of a by- law that they must follow and presume to be valid. It is clearly unnecessary to keep them in the action.

The costs have been exacerbated by the way that the pleadings have been drafted. [ 107 ] The MPC and SDAB have incurred significant costs preparing the record and dealing with a judicial review application against them, the pointlessness of which has been consistently communicated to Boll and Pipistrel. [ 108 ] Boll and Pipistrel argue that this is a complex matter. The same entity (the County) is paying for two separate lawyers and positions for the MPC and SDAB respectively. [ 109 ] On the question of solicitor client costs versus enhanced costs, Michalyshyn J in Decore v Decore , 2016 ABQB 572 at paras 13-

16 , observed as follows: [13] Rule 10.33(2) entitles me to consider, amongst other things, “(

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action,” and “(

g) whether a party has engaged in misconduct”. [14] Both parties cite Graesser J from College of Physicians and Surgeons of the Province of Alberta v. J.H., 2009 ABQB 48 for general principles around the discretion to award costs and, in particular, solicitor-client costs. [….] [16] That said, conduct falling short of satisfying the test for solicitor-client costs may still support an award of enhanced costs.

Such conduct is often expressed as “misconduct,” e.g., Indutech Canada Limited v Gibbs Pipe Distributors Ltd ., 2012 ABQB 425 (per Romaine J), and the authorities noted at pp 10-75 to 10-78 of the Alberta Civil Procedure Handbook (Juriliber, 2016). I am also attracted to Justice Sanderman’s articulation of the point in Kent v Law Society of Alberta , 2015 ABQB 432 , at para 18 : … Full indemnity costs are only to be awarded in the most egregious circumstances. They are a rarity. Enhanced costs are not.

They can be awarded in those circumstances where the conduct of one of the participants falls far short of what is expected from a responsible litigant. [ Emphasis added ] [ 110 ] In my view, the conduct of Boll and Pipistrel does not attract a solicitor-client costs award. However, for the reasons stated above, at paragraphs 104-106 of this Reasons for Decision, I find that both the MPC and SDAB are entitled to enhanced costs against Boll and Pipistrel. The Applicants’ conduct falls short of what is expected of a responsible litigant in the circumstances of the present case. VI.

Summary [ 111 ] The judicial review application against the MPC and the SDAB is dismissed. [ 112 ] I order both the MPC and the SDAB to be removed as parties to the judicial review application. [ 113 ] The MPC and the SDAB shall have their costs of this action on an enhanced basis. If the parties are unable to agree on enhanced costs and wish to speak further to costs, they may make arrangements to do so within 30 days of the date of issuance of these Reasons for Decision. Heard on the 15 th day of April, 2021. Dated at the City of Edmonton, Alberta this 21 st day of May, 2021. S.N. Mandziuk J.C.Q.B.A.

Appearances: Peter J. Major, Q.C. for Jonas Boll and Pipistrel Aircraft Canada Inc. Kelsey L. Becker Brookes

for Woodlands County Subdivision and Development Appeal Board Jeneane S. Grundberg, Q.C. for Woodlands County Municipal Planning Commission and Woodlands County