Neilson v Leduc (County), 2021 ABQB 735

Court of Queen’s Bench of Alberta Citation: Neilson v Leduc (County), 2021 ABQB 735 Date: 20210914 Docket: 2003 19360 Registry: Edmonton Between: Kevin Neilson and Karen Neilson Applicants - and - Leduc County, Anuj Gupta, Sita Gupta, Minister of Justice and Solicitor General, Attorney General for Canada Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice T.G. Rothwell _______________________________________________________ A. Introduction [ 1 ] Kevin and Karen Neilson (the Neilsons) commenced an Originating Application for Judicial Review (Originating

Application) seeking to quash or declare invalid a bylaw passed by Leduc County (Leduc). The Neilsons reside in Leduc County. [ 2 ] Leduc applies to strike and/or to summarily dismiss the Originating Application (Dismissal Application) primarily on the basis that it was filed beyond the time limits prescribed by the Alberta Rules Court , Alta Reg 124/2010 ( Rules of Court ) and the Municipal Government Act , RSA 2000, c M-26 ( MGA ).

Leduc also advances the argument that the matter should be struck on the basis of unreasonable delay and laches. [ 3 ] The Neilsons resist the Dismissal Application, arguing they complied with the relevant limitation periods and that the matter is not appropriate for

summary adjudication and should proceed to a hearing on the merits. [ 4 ] For the reasons that follow, I find that the Neilsons did not commence their Originating Application within the 6 month limitation period prescribed in Rule 3.15(2) of the Rules of Court and their Originating Application is accordingly dismissed. B. Background Facts [ 5 ] Sita Gupta, a Respondent in this action, owns lands that are adjacent to the Neilsons’ lands in Leduc County.

Both parties’ lands are situated within the County’s Agricultural/Country Residential Transitional District (Transitional District). [ 6 ] In January of 2020, Sita Gupta applied to amend Land Use Bylaw 7-08 to permit “rural wedding and agricultural event facility” as a discretionary use within the Transitional District.

Anuj Gupta, also a Respondent, assisted Sita Gupta with the application process. [ 7 ] On March 10, 2020, Leduc passed Bylaw No. 06-20, which amended Bylaw 7-08 and allowed “rural wedding and agricultural event facility” as a discretionary use within the Transitional District. [ 8 ] Bylaw No. 06-20 came into effect on March 10, 2020.

On March 11, 2020, the Guptas, through a corporation, applied for a development permit to permit the construction of a rural wedding and agricultural event facility. [ 9 ] On April 9, 2020, adjacent landowners, including the Neilsons, received notice of the permit application and were provided the opportunity to comment on the proposed development. [ 10 ] On May 11, 2020, Leduc approved the development permit application.

On May 29, 2020, the Neilsons filed a notice of development appeal with Leduc’s Subdivision and Development Appeal Board (SDAB). [ 11 ] On July 13, 2020, the SDAB denied the Neilsons’ appeal and approved the development permit (SDAB Decision). [ 12 ] The Neilsons did not appeal the SDAB Decision. [ 13 ] On November 20, 2020, the Neilsons filed their Originating Application challenging Bylaw No. 06-20 on procedural grounds and also raising issues regarding the SDAB Decision. C.

Position of the Parties Leduc County [ 14 ] Leduc seeks to strike and/or summarily dismiss the Originating Application on the following grounds:

a) The Neilsons did not file and serve their Originating Application within the 6 month time limit imposed by Rule 3.15(2) of the Rules of Court ;

b) The Neilsons did not serve all affected parties with their Originating Application as required by Rule 3.15(3)(

b) and (c);

c) The Neilsons did not comply with s 537 of the MGA which imposes a 60 day timeline within which to challenge a bylaw on the basis that Leduc County did not comply with the MGA (i.e. s 606 – advertising requirement);

d) The Neilsons did not comply with Rule 3.18 of the Rules of Court because they failed to serve the Form 8 Notice with their Originating Application. Form 8 directs the decision maker to provide the Certified Record of Proceedings;

e) The Originating Application, in part, constitutes an abuse of process because it seeks to collaterally attack the development permit that was issued to Sita Gupta; and

f) The Neilsons engaged in delay and did not commence their Originating Application within a reasonable period of time, which has caused hardship and prejudice. Anuj and Sita Gupta [ 15 ] The Guptas did not file any written submissions; however, they support Leduc’s position and filed an affidavit. The Guptas join with Leduc in arguing that the Originating Application should be dismissed on the basis that it was not filed and served in accordance with Rule 3.15(2) and that it should be struck on the basis of delay and laches.

Neilsons [ 16 ] The Neilsons respond to the Dismissal Application as follows: a) 6 Month Limitation – The Neilsons argue that the 6 months runs from April 17, 2020, the date they learned that Bylaw No 06-20 was passed, and therefore they complied with Rule 3.15(2);

b) S 537 MGA 60 day time limit – The Neilsons argue that this

section is inapplicable as a result of s 538, which allows a challenge outside the 60 day time limit if a municipality fails to advertise a bylaw when advertising is required. The Neilsons argue that the advertising in the Leduc Representative did not satisfy the advertising requirement;

c) The matter is not appropriate for

summary adjudication because of conflicting evidence;

d) They assert that Leduc failed to comply with s 606 of the MGA because they advertised notice of the public hearing to amend Bylaw No. 07-08 on Leduc County’s website without first passing an authorizing bylaw pursuant to s 606.1 of the MGA ;

e) They argue that they should have received direct/personal notice of the proposed bylaw amendment and that other residents in the Transitional District should have received direct mail notice;

f) They dispute that they engaged in unreasonable delay or caused hardship as a result of the timing associated with their Originating Application;

g) In response to Leduc’s collateral attack argument regarding the SDAB Decision, they abandon the grounds listed at paragraphs 22 and 23 of their Originating Application; and

h) They seek leave to amend their Originating Application to seek a Declaration that Bylaw No. 06-20 is illegal and void and therefore not subject to a limitation defence. D. Analysis Appropriate for Striking/Summary Dismissal? Test for Application to Strike [ 17 ] Rule 3.68 of the Rules of Court addresses applications to strike. The relevant parts of Rule 3.68 state: 3.68

(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;

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

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. [ 18 ] An application for judicial review may be struck out if it is clear that it constitutes an abuse of process or a collateral attack: see Métis Nation of Alberta Association Fort McMurray Métis Local Council v Alberta , 2021 ABQB 282 at para 84 . Test for

Summary Dismissal [ 19 ] Rule 7.3 of the Rules of Court allows a party to apply to the Court for

summary judgment in respect of all or part of a claim. [ 20 ] Mandziuk J, in Boll , quoting from Rooke ACJ, summarized the test at paras 60 to 63 as follows: [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). [ 21 ] 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. [ 22 ] Courts in Alberta have granted

summary judgment/dismissal of applications for judicial review. In Bergman v Innisfree (Village) , 2020 ABQB 661 [ Bergman ], Justice Feth noted that

summary dismissal of a judicial review proceeding is only available in limited circumstances, but may be appropriate when “a fatal flaw strikes at the foundation of the Court’s authority to hear the application”: see paras 99-101. [ 23 ]

Summary judgment/dismissal has been granted when the judicial review application has not been commenced within the 6 month time frame mandated by Rule 3.15: see Athabasca Chipewyan First Nation v Alberta (Minister of Energy) , 2009 ABQB 576 , upheld on appeal 2011 ABCA 29 , Enmax Corporation v Alberta Labour Relations Board , 2018 ABQB 431 ; and Boll v Woodlands County , 2021 ABQB 406 [ Boll ]. 6 Month Limitation Period – Was the Judicial Review Filed and Served in Time? Rule 3.15 and Computation of Time [ 24 ] Rule 3.15 of the Rules of Court is the starting point for this analysis.

Specifically, Rule 3.15(2) reads as follows: Subject to rule 3.16 [Originating application for judicial review: habeas corpus], an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 [Variation of time periods] does not apply to this time period. [ 25 ] Rule 13.5 allows the Court to generally vary a time period unless another Rule “otherwise orders.” [ 26 ] In the present case, Rule 3.15(2) specifically precludes the application of Rule 13.5.

Therefore, I have no power to extend or vary the 6 month limitation period in these circumstances: see Enmax Corporation v Alberta (Labour Relations Board) , 2018 ABQB 431 at para 13 ; Baker v Drouin , 2017 ABQB 204 at para 11-17 ; and F.

Prins Potatoes Ltd v Agriculture Financial Services Corp , 2015 ABQB 335 at paras 16-17 . [ 27 ] It is well established in Alberta jurisprudence that the 6 month time limit to file and serve an Originating Application for Judicial Review is strictly interpreted and not subject to variation by the Court. [ 28 ] The Alberta Court of Appeal has determined that a bylaw is “a decision or act” of the municipality subject to Rules 3.15(1)(

a) and (

b) of the Rules of Court . See: Okotoks (Town) v Foothills (Municipal District No 31) , 2013 ABCA 222 [ Okotoks ] at para 9 .

In the present case it is not disputed that Bylaw No. 06-20 was passed on March 10, 2020. [ 29 ] Rule 13.4(1) provides direction on counting months and years and the relevant portion states: When counting to or from a date in months, time is calculated from the date on which the event or activity occurs in the month to the same-numbered day in a subsequent or previous month, as the case requires. [ 30 ] The calculation of time involving the 6 month limitation period was considered in Becker v Alberta (Director of Employment Standards) , 2000 ABCA 329 [ Becker ].

The Becker decision considered Rule 753.11, which is the predecessor to Rule 3.15; however, the reasoning is nonetheless applicable to the present matter: see Okotoks at paras 9-15 . [ 31 ] Mr. Becker received an employment standards decision on October 27, 1997 and the Court held that the 6 month limitation period expired on April 27, 1998. The Court had regard to s 22 of the

Interpretation Act , RSA 2000, c I-8 and also considered the wording of Rule 753.11 in coming to this conclusion. Becker filed his judicial review application on April 28, 1998. The Court of Appeal upheld the Chambers Justice’s striking of the judicial review application on the ground that it was out of time by one day. Ministerial Order Suspending Limitation Period [ 32 ] Applying the direction in Becker , and having regard to the wording in Rule 3.15 and 13.4(1), the limitation period would have expired on September 10, 2020.

However, regard must be had to Ministerial Order 27/2020 (Ministerial Order) issued by the then Minister of Justice and Solicitor General, Doug Schweitzer, which had the effect of suspending limitation periods during the spring of

2020 at the outset of the COVID-19 pandemic. [33] Leduc argues that the Ministerial Order extended the limitation period to November 24, 2020 (September 10, 2020 + 75days). The Nielsons did not dispute Leduc’s

interpretation of the Ministerial Order and the corresponding 75 day calculation. [34] The specific wording of the Ministerial Order indicates that limitations are “suspended from March 17, 2020 to June 1, 2020”and notes that “the limitation period or period of time resumes running on June 1, 2020 and the temporary suspension period shall not becounted.” [35] Section 22(6) of the

Interpretation Act reads as follows: If in an enactment a time is expressed to begin after or to be from a specified day, the time does not include that day. [36] Therefore, I find that the 6 month limitation period was suspended from and including March 18, 2020 to and including May31, 2020, a period of 75 days. [37] The Neilsons filed their Originating Application on November 20th, 2020; it was served on Leduc on November 25, 2020.The Alberta Minister of Justice and Solicitor General and Attorney General for Canada were also served on November 25, 2020. TheGuptas were not served until December 9, 2020.

Rule 3.15(2) requires that the judicial review application be both filed and served within6 months. [38] If I accept Leduc’s position that the limitation period began to run on March 10, 2020, the Neilsons will have missed thedeadline (i.e. November 24, 2020) by one day in relation to Leduc, Alberta and Canada.

When does the Limitation Period Begin to Run? [39] The Neilsons argue that Leduc should have provided them with personal notice of the proposal to amend Bylaw No. 7-08 andthat the 6 month limitation period should run from April 17, 2020 (i.e. the date the Neilsons learned that Bylaw 7-08 was amended). [40] The Neilsons provided no authority for the proposition that the limitation period should run from the date they learned of thedecision. [41] In Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29 [ACFN], the Court considered theissue of when the 6 month limitation period should begin to run in the context of a First Nation seeking to challenge a mineral lease.

TheCourt held that: 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. Ifthere is a clear obligation to provide notice then the limitation runs from the date notice is given: Babiuk; AUPE; Urban Development;Johannesson v. Alberta (Workers’ Compensation Appeals Commission) (1995), (AB QB), 175 A.R. 34 (Q.B.);Edmonton (City) v. Gaffney (1999) 1999 ABQB 649 , 313 A.R. 161, [1999] 4 M.P.L.R. (3d) 99 (Q.B.).

In Peixeiro v.Haberman, (SCC), [1997] 3 S.C.R. 549, the Supreme Court confirmed that when a limitation runs from an eventwhich clearly occurs, without the regard to the injured party’s knowledge, the discoverability principle does not apply. [42] Based upon the ACFN decision, it is clear that the limitation period runs from the date of the decision, not when a partylearns of the decision, unless there is an obligation to provide notice. [43] Leduc was acting in a legislative capacity when it passed Bylaw No. 06-20.

There is no requirement under the MGA, in thiscircumstance, for a municipality to provide notice once the bylaw was passed: s 189 of the MGA.

See Al-Ghamdi v College andAssociation of Registered Nurses of Alberta, 2017 ABQB 685, aff’d 2020 ABCA 81, leave to appeal SCC denied for an example of asituation where notice is statutorily required. [44] One of the primary purposes of the 6 month limitation period in the context of a judicial review is to bring certainty to mattersand to ensure that parties will know when they are free to act without concern that a decision they are relying upon may be challenged.Conversely, it is also important to ensure that potential applicants are accorded sufficient time to learn of decisions and act accordingly.Hence, the generous 6 month limitation period. [45] In the context of a bylaw amendment of this type, it would untenable from a certainty and finality prospective for thecommencement of the limitation period to be dependent upon the subjective knowledge of a potential applicant. [46] I conclude that the limitation period runs from the date of the decision to amend Bylaw 7-08, being March 10, 2020.

Other Arguments Raised To Defeat The 6 Month Limitation Period [47] The Neilsons advance 3 other arguments in response to the Dismissal Application. Direct Notice Argument [48] Firstly, they argue they were entitled to direct notice of the hearing to amend Bylaw No 7-08.

The Neilsons correctly point outthat an allegation of a breach of procedural fairness is not caught by the 60 day limitation period contained in s 537 of the MGA, which isaimed at review in relation to non-compliance with the MGA and other “enactments”. [49] A judicial review application alleging a breach of procedural fairness must still be commenced within the 6 month limitationperiod: Simonelli v Rocky View (Municipal District No 44), 2004 ABQB 45 at paras 47-51 and Brodylo Farms Ltd v Calgary (City),

2019 ABQB 123 at paras 29-33 . An allegation of a breach of procedural fairness does not change the date of the decision or pause the limitation period. [ 50 ] The Airport Self Storage and R.V. Centre v Leduc (City) , 2008 ABQB 12 decision, cited by Leduc, is an example of a case where this Court held that direct notice of a proposed bylaw amendment was required; however, in that case there is no suggestion that the judicial review was commenced outside of the applicable limitation period. Sufficiency of Advertising Argument [ 51 ] The Neilsons second argument relates to advertising and the

interpretation of s 538 of the MGA . [ 52 ] The Neilsons take issue with the sufficiency of Leduc utilizing the Leduc Representative to provide notice of the public hearing to consider the application to amend Bylaw 7-08. For one, they contend the Leduc Representative does not have appropriate circulation in the area affected by Bylaw No. 06-20. [ 53 ]

Section 538 of the MGA allows a person to “apply at any time” for a declaration that a bylaw is invalid if “the bylaw is required to be advertised and it was not advertised.” Leduc argues that because the proposed amendment was advertised the Neilsons are unable to avail themselves of the extension granted by s 538. I am satisfied that advertising occurred. The issue is the sufficiency of the advertising. [ 54 ] One of the primary purposes of advertising is to alert potentially affected or interested parties of pending decisions. I do not have any evidence before me regarding the sufficiency of the advertising.

Leduc noted that it would provide such evidence if the judicial review proceeded on its merits. In the absence of evidence regarding the sufficiency of the advertising I am not prepared to determine, on a

summary dismissal application, that the Neilsons are unable to rely upon the relief from the 60 day period set out in s 538. [ 55 ] However, if the 6 month limitation period applies despite the “apply at any time” wording set out in s 538, then I do not need to determine whether the 60 day period in s 537 applies or not. [ 56 ] The interplay between ss 536, 537 and 538 of the MGA and Rule 3.15(2) of the Rules of Court was considered by the Alberta Court of Appeal in the Okotoks decision. The Court held that the 6 month limitation under Rule 3.15(2) applies to challenges brought under s 536 of the MGA .

The Court rejected the argument that s 538 of the MGA created a situation where there was no limitation under s 536: see paras 19-22. [ 57 ] I also find it necessary to consider Mammoet 13220-33 Street NE Limited v Edmonton (City) , 2014 ABCA 229 [ Mammoet ], which considered and sought to reconcile the Okotoks decision and United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City of) , 2002 ABCA 13 [ United Taxi ]. In United Taxi , the Court of Appeal held that a limitation may not apply if a bylaw is void for lack of jurisdiction: see Mammoet at para 20 .

In Mammoet at para 24 the Court held: The Supreme Court reversed the majority’s decision in United Taxi , with respect to the bylaw’s validity, but it did not take issue with this Court’s findings on the limitations issue. That decision, therefore, remains binding until overruled by the Supreme Court, or reconsidered, and it is notable that the decision has been followed subsequently insofar as it relates to the issue of whether a void bylaw can be challenged outside a limitation period: Urban Development Institute v Rocky View (M.D.

No.44) , 2002 ABQB 651 , 8 Alta LR (4th) 273. [ 58 ] The Court in Mammoet distinguished Okotoks , holding at para 29 : In our view, the key ingredient of Okotoks 2013 is the Queen’s Bench Judge’s finding that the impugned bylaw was not being challenged because it was enacted without jurisdiction, and was therefore void. It was being attacked, instead, because it was alleged to conflict with an inter-municipal agreement, rendering it, at best, voidable.

The finding that the limitation period in Rule 3.15(2) applied was based upon this conclusion. [ 59 ] In Okotoks , the challenge to the validity of the bylaw was not a vires challenge, but instead was based upon conflict between the bylaw and an inter municipal development plan. [ 60 ] In my view, the reasoning in Okotoks is applicable to this matter because the Neilsons are not arguing that Leduc lacked jurisdiction to pass Bylaw No. 06-20, but instead are pointing to procedural requirements under the MGA and raising a procedural fairness argument.

Therefore, like in Okotoks , Rule 3.15(2) imposes a 6 month limitation period notwithstanding that s 538 indicates that a challenge may be brought “at any time.” [ 61 ] As a result, notwithstanding that I do not have any evidence before me regarding the sufficiency of the advertising by Leduc, I am satisfied that a challenge to a bylaw on the basis that a municipality did not advertise in accordance with the MGA is subject to the 6 month limitation imposed by Rule 3.15(2). Lack of Authorizing Bylaw Argument [ 62 ] The second related argument advanced by the Neilsons relates to ss 606 and 606.1 of the MGA .

Section 606 essentially sets out the notice requirements that must be met when a matter or event (e.g. a public hearing, resolution, etc) has to be advertised by a municipality.

Section 606.1 allows a municipality to provide for more than one method of notice, including provision of electronic notice for matters that s 606 mandate must be advertised. [ 63 ] Leduc, in addition, to twice advertising the Public Notice of the March 10, 2020 hearing in the Leduc Representative , also provided notice of the public hearing on March 10, 2020 on its municipal website.

[ 64 ] Leduc concedes that it has not passed an authorizing bylaw pursuant to s 606.1 of the MGA allowing it to utilize its website to meet the notice requirements under s 606.

Leduc does not seek to rely upon the publication of the Public Notice on its website, but instead relies upon the publication of the Public Notice in the Leduc Representative . [ 65 ] The Neilsons advance the argument that Leduc’s publication on the website requires an authorizing bylaw and that Leduc’s failure to pass such a bylaw invalidates Bylaw No. 06-20 and it deems it illegal and void and not subject to the 6 month limitation period under Rule 3.15(2) of the Rules of Court . [ 66 ] Section 606(1) is permissive.

A municipality “may” pass a bylaw authorizing other methods of advertising. [ 67 ] Leduc is free to provide notice in a variety of ways, in the absence of an authorizing bylaw under s 606.1, so long as it complies with s 606 and does not seek to rely upon the other means of notice.

A municipality should not be discouraged from providing notice through a variety of means or mediums for fear that it would vitiate a statutorily authorized method. [ 68 ] The Neilsons at paragraphs 51-52 of their written argument seek to amend their Originating Application to seek a declaration that Leduc’s failure to pass an authorizing bylaw pursuant to s 606.1 results in Leduc lacking statutory authority to pass Bylaw No. 06- 20, thereby deeming it “void and illegal.” This request was contingent upon the Neilsons defeating Leduc’s dismissal application. [ 69 ] For the reasons outlined above, I reject the Neilson’s argument that Leduc’s utilization of their website in the absence of an authorizing bylaw to advertise electronically constitutes a breach of the MGA or invalidates the provision of notice by a means set out in s 606 (i.e. advertising in the Leduc Representative ). [ 70 ] The Neilsons request for leave to seek a declaration appears to be an attempt to circumvent the 6 month limitation period imposed by Rule 3.15(2).

This application was framed as a judicial review as it referenced “Part 3 and Division 2” of the Rules of Court and seeks to quash Bylaw No. 6-20: see Boll at para 78 . [ 71 ] The Neilsons seek to set aside Bylaw No. 6-20 on the basis that Leduc failed to comply with notice requirements under the MGA and/or principles of natural justice. As outlined above, challenging the validity of a bylaw on those grounds is subject to the 6 month limitation period in Rule 3.15(2). Appropriate For

Summary Adjudication? [ 72 ] In order to grant

summary judgment/dismissal, I must be satisfied on a balance of probabilities that there is no genuine issue requiring a trial or in this case “a full judicial review.” Leduc bears the onus of persuasion in this regard. [ 73 ] The Neilsons argue that there are conflicting factual and evidentiary points that render this matter inappropriate for

summary disposition. They also seek to introduce additional evidence and question a councilor who did not swear an affidavit. Specifically, they point to differing evidence regarding what they were told by the Guptas relative to their plans for their property.

The Guptas indicate that they advised the Neilsons of their plans and the Neilsons indicate that they were unaware of the application to amend Bylaw No. 07-08. [ 74 ] While the affidavits are not entirely consistent with respect to who was told what about the proposed amendment and/or development plans, I am not convinced that the evidence necessarily conflicts on this point, but instead it lacks clarity. In any event, the evidence regarding the date of the decision and the service and filing of the Originating Application does not conflict.

I have reviewed the filed affidavits and the Certified Record of Proceedings and I am satisfied that it is appropriate and just to exercise my discretion to resolve this matter on a

summary basis. The evidence regarding the 6 month limitation period does not conflict. I agree with Justice Feth’s observation in Bergman that

summary dismissal in the context of a judicial review will only be available in limited circumstances. However, an application based upon a limitations issue can be an appropriate ground upon which to seek

summary disposition. [ 75 ] In

summary, I am satisfied that the limitation period began running on March 10, 2020 when Bylaw No. 06-20 was passed and that Rule 3.15(2), coupled with the Ministerial Order, required that the Originating Application be served and filed on or before November 24, 2020. The Neilsons did not serve Leduc, Alberta and Canada until November 25, 2020 and the Guptas on December 9, 2020. I have considered the basis and merits of the Originating Application and conclude that the entirety of their claim is out of time. The fair and just result is to grant Leduc’s application for

summary dismissal. E. Conclusion [ 76 ] The Neilsons’ Originating Application is dismissed in its entirety because it was not filed and served within the time limit required by Rule 3.15(2) of the Rules of Court . It is not necessary for me to deal with the remaining grounds raised by Leduc. [ 77 ] Leduc seeks costs and has been successful and is entitled to costs. If the parties wish to speak to costs, they may make arrangements to speak with me within 30 days of the issue of this judgment. Heard on the 20 th day of July, 2021. Dated at the City of Edmonton, Alberta this 14 th day of September, 2021.

T.G. Rothwell J.C.Q.B.A. Appearances: Eric Compton KMSC Law LLP for the Applicants Inderpaul (Indy) Hary Hladun & Company for Anuj Gupta and Sita Gupta Jeneane Grundberg, QC and Brendan Dzioba Brownlee LLP for Leduc County