Colvin v Minister of Municipal Affairs (Alberta), 2024 ABKB 74

Court of King’s Bench of Alberta Citation: Colvin v Minister of Municipal Affairs (Alberta), 2024 ABKB 74 Date: 20240209 Docket: 2301 17309 Registry: Calgary Between: Jeff Colvin, Mel Foat, Stephen Hanley, and Blaine Funk Applicants - and – His Majesty the King in Right of Alberta, as represented by The Minister of Municipal Affairs Respondents _______________________________________________________ Endorsement of the Honourable Justice J.C. Price _______________________________________________________ I. Introduction [ 1 ] The Applicants were the mayor and some of the councillors for the City of Chestermere.

They were dismissed from those positions by a Ministerial Order dated December 4, 2023. On December 22, 2023, the Applicants filed an Originating Application seeking, among other things, a mandatory interim injunction reinstating them to those positions pending judicial review of the dismissal decision. The application for judicial review has not yet been scheduled. [ 2 ] For the reasons that follow, the application for a mandatory interim injunction is dismissed. II.

Brief Background [ 3 ] On October 18, 2023, the Minister of Municipal Affairs (the “Minister”) wrote to the members of Council for the City of Chestermere and to its Chief Administrative Officers to provide notice of his intention to dismiss them pursuant to the Municipal Government Act , RSA 2000, c M-26 (the “ MGA ”) and to give them an opportunity to respond. [ 4 ] In November 2023, a group that included the within Applicants applied for a quia timet injunction preventing the Minister from dismissing them as he had indicated in his October 18, 2023 letter.

That injunction application was heard on November 29, 2023 by Justice Yamauchi. On November 30, 2023, Justice Yamauchi gave oral reasons dismissing the application. His decision was not appealed. [ 5 ] In his oral reasons, Justice Yamauchi stated the following: In the case at bar, the Applicants have provided this Court with a paucity of information on harm that would accrue to the Applicants and

the City if this Court were not to grant the injunctive relief they seek, other than to say that they should be allowed their day in court. Based on the foregoing, this Court concludes that the Applicants have not met the onus imposed on them by RJR. This Court finds that ifit granted the injunction the Applicants seek, the harm to the public and the City would be greater than any harm to the Applicants. Theinterest of the citizens of Chestermere and the City itself would suffer.

As a result, this Court dismisses the Applicants’ applicationseeking an injunction and a qui timet injunction. [6] On December 4, 2023, the Minister issued Ministerial Order No MSD:076/23 (the “Ministerial Order”) pursuant to ss 574and 575.2 of the MGA, dismissing the Applicants from their positions as members of City Council.

The Ministerial Order also appointedan official administrator (“OA”) as Council until quorum is restored, appointed a new chief administrative officer (“CAO”), and ordereda by-election to be held within 180 days (that is, by June 1, 2024). [7] On December 22, 2023, the Applicants filed the within Originating Application and supporting affidavit of Jeff Colvinsworn December 19, 2023.

The Originating Application was returnable February 6, 2024. [8] On January 11, 2024, the Applicants filed a Notice to Obtain Record of Proceedings requiring the Minister to provide hisreasons and the documents and records relating to his reasons for the Ministerial Order. [9] On January 23, 2024, counsel for the Minister filed a brief and an affidavit in response to the Applicants’ application forinjunctive relief. [10] On February 6, 2024, the parties appeared before me in morning civil chambers. III. Issues [11] The issues before me are: (

a) Have the issues raised in this Application been decided already by Justice Yamauchi? (

b) If not, have the Applicants demonstrated satisfactorily that: (

i) There is a serious question to be tried; (ii) They would suffer irreparable harm if an injunction is not granted; and (iii) The balance of convenience favours the Applicants? IV. Law and Analysis A. Have the issues raised in this Application been decided already by JusticeYamauchi? [12] The Minister argues that the Applicants are attempting to re-litigate issues already decided on their previous application forinjunctive relief. He argues both issue estoppel and abuse of process. [13] As the Minister articulates in his brief, issue estoppel has three requirements: (

i) the same issue to be decided as in the priorjudicial decision, (ii) the prior decision must be final, and (iii) the parties to both proceedings must be the same. Clearly, the second andthird requirements are met here. [14] The parties provided me with a transcript of Justice Yamauchi’s decision, which I have reviewed carefully. I am in agreementwith his application of the test in RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 to thefacts before him.

There is no doubt from my review of that decision and of the record that was before Justice Yamauchi that similar factsand issues were before both of us. This is unsurprising given that both applications were for injunctive relief arising out of the samefactual matrix. [15] Nevertheless, I am satisfied that the application before me is not encompassed by Justice Yamauchi’s decision and must beconsidered separately. The Ministerial Order, while contemplated at the time of the application before Justice Yamauchi, had not yetbeen issued.

It now has been issued and the Applicants are seeking judicial review of the decision contained within it to dismiss themfrom their positions. In my view, there are sufficient differences to warrant fresh consideration. [16] That said, given the similarities in the two applications and the desire to promote consistency in this Court’s decisions, I thinkit reasonable and appropriate to conduct my analysis along the same lines as Justice Yamauchi’s. Accordingly, I will now considerwhether the Applicants meet the RJR test for an injunction. B.

Application of the RJR Test [17] It is well known that, to succeed on an injunction application of this nature, the Applicants must meet the test articulated bythe Supreme Court of Canada in RJR at para 48 as follows:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases. [ 18 ] The first question is whether there is a serious question to be tried in respect of the Applicants’ judicial review application. As Justice Yamauchi did in his decision, I acknowledge that this is not the judicial review of the Ministerial Order and that the threshold on this “preliminary assessment” is low.

Applying this low threshold to the application and record before me, I find that there is a serious issue to be tried and this criterion is met. [ 19 ] In respect of the second criterion, I agree with Justice Yamauchi that the irreparable harm must be to the Applicants themselves. In both of their injunction applications, the Applicants have stressed the harm they allege will result to the City of Chestermere if they are not reinstated to their positions. Justice Yamauchi found that this is not an appropriate consideration in respect of this second criterion. I agree.

Moreover, at this point, having been removed from Council for the City of Chestermere, the Applicants no longer speak for the City and do not represent its interests. [ 20 ] I find that Mr. Colvin’s affidavit sworn December 19, 2023 fails to identify any harm to the Applicants themselves.

I agree with counsel for the Minister that the Applicants’ allegations “largely appear to be that” the OA and CAO “are making decisions on behalf of the City that may be inconsistent with how the Applicants previously managed” the City. [ 21 ] Justice Yamauchi cited Modry v Alberta Health Services , 2015 ABCA at para 82 for the proposition that “evidence of irreparable harm must be shown by the applicant to be clear and not speculative.” On the record before me, the Applicants have failed to identify any harm, speculative or otherwise, that they will suffer if an injunction is not granted.

Accordingly, I find that the Applicants have not satisfied the second element of the RJR test. [ 22 ] The third element of the RJR test requires the Court to assess whether greater harm will result from the granting or refusal of the injunction. I agree with Justice Yamauchi that the public interest raised by the Applicants properly is considered at this balancing stage. [ 23 ] As noted above, the Applicants assert that the public interest will be at risk if they are not returned to their positions because the OA and CAO are making decisions inconsistent with those previously made by the Applicants.

However, I am mindful that the Minister found that the Applicants were managing the City in “an irregular, improper, and improvident manner”. It is therefore not surprising that the approach of the OA and CAO would be different and I am not satisfied that this represents harm to the public interest. In the result, the balance of convenience does not favour granting an injunction. V. Conclusion [ 24 ] Taking all of the foregoing into account, I find that the Applicants have failed to satisfy the second and third elements of the RJR test.

Consequently, their application for an interim injunction is dismissed. [ 25 ] The Applicants are granted leave to write to Associate Chief Justice D. B. Nixon for earlier dates for the hearing of their application for judicial review. VI. Costs [ 26 ] Costs are in the cause. Heard on the 6 th day of February 2024. Dated at the City of Calgary, Alberta this 9 th day of February 2024. J.C. Price J.C.K.B.A. Appearances: Jeff W. Moroz

Counsel for the Applicants Peter Buijs Counsel for the Respondents