CREEKSIDE II CONDOMINIUM CORPORATION APPLICANT - v. -, 2023 SKKB 2

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 2 Date: 2023 01 04 Docket: QBG-SA-00118-2022 Judicial Centre: Saskatoon BETWEEN: CREEKSIDE II CONDOMINIUM CORPORATION APPLICANT - and - THE CITY OF SASKATOON RESPONDENT Counsel: Kamara Q. Willett for the applicant Brett A. Stevenson for the respondent ___________________________________________________________________________ JUDGMENT GERECKE J. January 4, 2023 ___________________________________________________________________________ A.

INTRODUCTION [ 1 ] The applicant, Creekside II Condominium Corporation [Creekside], applies for judicial review of a water billing decision of the City of Saskatoon [City], commenced by Originating Application served on the City on February 15, 2022. [ 2 ] Creekside is the condominium corporation in respect of a condominium development [Development] located in Saskatoon. It seeks judicial review in an uncommon context.

In addition to being the respondent, the City was also the decision-maker and the author of the City’s bylaw to be interpreted – Bylaw No. 7567, The Waterworks Bylaw, 1996 [ Bylaw ] [as amended (as described below)]. The issues relate to the rates applied by the City to certain units within the Development pursuant to the Bylaw . Creekside argues that the City misinterpreted its own bylaw and overcharged certain unit owners in the Development. [ 3 ] The City contends that its

interpretation of the Bylaw was and is correct, and also argues delay and expiry of the limitation period. Of relevance is that s. 307(1) of The Cities Act , SS 2002, c C-11.1 , provides for a special one-year limitation period concerning claims for recovery of damages, which has been interpreted to apply to matters such as repayment of taxes paid in respect of the wrong property. See: Ly v Regina (City) , 2021 SKQB 80 , 14 MPLR (6th) 69. The one-year limitation period, which requires not only that a claim be initiated but also served within the year, would clearly apply here. [ 4 ] There was no hearing.

There was no formal decision rendered in a manner that would be expected from a tribunal or arbitrator. The parties differ on what should properly be considered the decision. [ 5 ] Because there was no hearing, there is no record from proceedings below. The City filed a Certified Record of Proceedings [Certified Record] comprised of the Bylaw and amendments to it, and various reports to and resolutions of Saskatoon’s city

council [Council]. [ 6 ] The Court received affidavits from two individuals who reside at the Development and have served on Creekside’s board of directors [Board], and from two City officials. [ 7 ] For the reasons that follow, I find that the City’s

interpretation of the Bylaw was unreasonable. Creekside’s application is allowed, though its recovery shall be limited by the application of s. 307(1) of The Cities Act . B. BACKGROUND [ 8 ] The Development is a bare land condominium. The improvements on the land consist of 18 duplexes and 2 triplexes, totaling 42 condominium units. There are 20 water meters for the Development. Fourteen are ¾ inch meters. Six are 1 ½ inch meters [Larger Meters]. The Larger Meters serve the Development’s landscape watering system, which is used exclusively for watering its grass and landscaping.

Each of the six Larger Meters also serves two condominium units, such that twelve units receive their water through Larger Meters. [ 9 ] Karen Smith filed an affidavit. She was a member of the Creekside Board and its former treasurer. In late 2019 Ms. Smith learned that a unit associated with a Larger Meter had been billed at a higher rate than other Creekside meters, and that this had been occurring since 2011. She started to investigate with City personnel.

The first time she was able to obtain any clear information from the City was March 2020. [ 10 ] Much “back and forth” ensued between Creekside and the City. By letters of April 21, 2021 and September 29, 2021, Derek Kowalski of the City solicitor’s office communicated that the Larger Meters were being billed at an appropriate rate and the City was unwilling to change its position. Most discussions between Creekside and the City are of little or no relevance to proper

interpretation of the Bylaw , so I will not delve further into them. C. THE BYLAW [ 11 ] The bylaw in issue is titled Bylaw No. 7567, The Waterworks Bylaw, 1996 . That was not the first waterworks bylaw, but earlier versions are not relevant. Bylaw No. 7567, The Waterworks Bylaw, 1996 was amended in 2006, 2009 and 2019, respectively, by: a. Bylaw No. 8564, The Waterworks Amendment Bylaw, 2006 [ 2006 Amending Bylaw ], b. Bylaw No. 8814, The Waterworks Amendment Bylaw, 2009 [ 2009 Amending Bylaw ] and, c. Bylaw No. 9665, The Waterworks Amendment Bylaw , 2019 (No. 2) [ 2019 Amending Bylaw ].

For the remainder of this judgment, I will refer to the Bylaw No. 7567, The Waterworks Bylaw, 1996 , as amended by the 2006 Amending Bylaw , the 2009 Amending Bylaw and the 2019 Amending Bylaw as [ Bylaw ]. The 2006 Amending Bylaw is of minimal relevance, other than being the last amendments prior to the 2009 Amending Bylaw that introduced the changes most pertinent here. [ 12 ] In this and the following paragraphs I will set out the most relevant portions of the Bylaw . Most are found in

Schedule “A” to the Bylaw , which is incorporated by reference by ss. 38(6) and 41(1), which state: 38.

(6) Water shall be provided at the rates set out in

Schedule “A” and shall be billed according to the rate applicable to the class of property to which the service is provided. … 41.

(1) Accounts for water service shall be billed monthly for residential, multi-unit residential and commercial and industrial customers at the rates and charges specified in

Schedule “A”. [ 13 ]

Schedule “A” contains four parts. The Court’s

interpretation task is focused mainly on

Part II, which addresses multi-unit residential property [MURP], being property with more than four dwelling units.

Part I deals with residential property (four dwelling units or less).

Part III covers commercial and industrial properties and

Part IV sets out rates for resellers. [ 14 ]

Section 3 sets out the meaning of certain defined terms:

Definitions 3. In this Bylaw, … (g.1) “multi-unit residential property” includes only land and improvements used or intended to be used for or in conjunction with a residential purpose and to accommodate more than four self-contained dwelling units within a parcel; (g.2) “multi-unit residential rate” means the rates, charges, levies and costs imposed pursuant to this Bylaw for the supply of water to a multi-unit residential property for the domestic use of the occupants thereof; (j) “residential property” includes only land and improvements used for or intended to be used for or in conjunction with a residential purpose, but does not include multi-unit residential property; …

[ 15 ]

Part II of

Schedule “A” is itself divided into two parts –

Part II A and

Part II B.

Part II A governs where “the ratio of dwelling units to meters is less than or equal to four”. It (including the heading and introductory language) states:

Part II Multi-Unit Residential Property (i.e., more than four dwelling units) The multi-unit residential rate for the years 2022 and 2023, respectively, shall be as follows: A.

Where the ratio of dwelling units to meters is less than or equal to four, the following rate shall apply: Service Charges (per month, per meter) Meter size 2022 2023 15 mm …………………………………………….. $ 12.81 $ 13.02 20 mm ……………………………………………. 19.22 19.53 25 mm ……………………………………………. 38.43 39.06 40 mm ……………………………………………. 76.86 78.12 50 mm ……………………………………………. 128.10 130.20 Volumetric Charges (per 1 cubic metre) 2022 2023 First 17 cubic metres per month .............................. $1.708 $1.790 Next 17 cubic metres per month .............................. 1.925 2.018 All in excess of 34 cubic metres per month ............. 2.535 2.656 Infrastructure Charges (per 1 cubic metre) 2022 2023 Constant unit charge ............................................... $1.279 $1.337 Minimum Monthly Charge ........................ service charges per meter per month All consumer accounts within this classification shall be based upon a quarterly reading of the meter taken to the nearest 1/100 cubic metre and shall be billed monthly.

Irrigation Metered Service Individually metered condominiums with separately metered irrigation services shall pay the residential volumetric and infrastructure charges per meter for the irrigation service as follows: Volumetric Charges (per 1 cubic metre) 2022 2023 Constant unit charge ............................................. $1.925 $2.018 Infrastructure Charges (per 1 cubic metre) 2022 2023 Constant unit charge ............................................. $1.279 $1.337 There shall be no service charge per meter charged for the irrigation meters. [ 16 ]

Part II B applies where “the ratio of dwelling units to meters is greater than four”. It states: B.

Where the ratio of dwelling units to meters is greater than four, the following rate shall apply: Service Charges (per month, per meter) Meter Size 2022 2023 15 mm ..................................................................... $ 32.88 $ 33.43 20 mm ..................................................................... 49.32 50.15 25 mm ..................................................................... 98.64 100.29 40 mm ..................................................................... 197.28 200.58 50 mm ..................................................................... 328.80 334.30 75 mm ..................................................................... 756.24 768.89 100 mm ................................................................... 1,348.08 1,370.63 150 mm ................................................................... 3,024.96 3,075.56

200 mm ................................................................... 5,392.32 5,482.52 250 mm ................................................................... 8,417.28 8,558.08 Volumetric Charges (per 1 cubic metre) 2022 2023 Constant unit charge ............................................... $1.437 $1.499 Infrastructure Charges (per 1 cubic metre) 2022 2023 Constant unit charge ............................................... $1.062 $1.094 Minimum Monthly Charge ................................ service charges per meter per month All consumer accounts within this classification shall be based upon a monthly reading of the meter taken to the nearest 1/100 cubic metre and shall be billed monthly. [ 17 ] The issue is whether water supplied to the Larger Meters should be billed under

Part II A or

Part II B. [ 18 ] Creekside says they belong under

Part II A because

Part II should be interpreted as grouping meters on a complex-by-complex basis. Because the overall ratio of Creekside dwelling units to meters is less than four, Creekside contends that the rates contained in

Part II A [A Rates] necessarily apply. [ 19 ] The City’s position is that under the Bylaw the ratio is properly calculated based on the number of units served by an individual meter. Although the City bills most of Creekside’s meters at the rates under

Part II B [B Rates], the Larger Meters serve more than four units and are properly billed under the A Rates. D. THE RECORD [ 20 ] As noted above, there was nothing akin to a hearing that occurred before this application was brought, nor would anything of that sort be expected. [ 21 ] The City filed the Certified Record.

It contains copies of Council resolutions approving bylaws, copies of the amending bylaws as approved, copies of the Bylaw as it stood in 2006, 2009 and 2019 after being amended, and a report to Council from the City’s administration concerning the 2009 Amending Bylaw . [ 22 ] Each of Creekside and the City filed two affidavits. The affidavits were needed to flesh out the background and the record of discussions between the parties. [ 23 ] Chaboyer v Saskatchewan , 2021 SKQB 200 , involved review of licensing decisions where no hearing record existed.

Faced with applications to strike affidavit materials, Krogan J. discussed what evidence may be admitted in an application for judicial review. The general rule is that only the evidentiary record that was before the decision-maker is admissible.

At para. 28, Krogan J. identified four exceptions applicable to that case, which included “general background” and “gap in record/absence of evidence” and noted that with any exception the evidence must be relevant and necessary. [ 24 ] Creekside raised some concerns that the City’s affidavits strayed into argument but did not formally apply to strike any portions of them. In my view that can be addressed through the weight that I give to portions that contain argument. I find that the Certified Record and the four affidavits are admissible.

I give reduced weight to the portions of the City’s affidavits that attempt to explain the thinking from when this billing model was introduced, as they are after-the-fact justifications from individuals who were not involved in making those decisions. [ 25 ] The parties disagree over what constitutes the decision from which judicial review is taken. The City says the decision was rendered in 2014 when it started billing the Larger Meters under

Part II B. It might be even earlier, when the 2009 Amending Bylaw was passed or first applied to MURPs generally. Creekside contends that the decision was one of the letters sent by Derek Kowalski to Creekside in 2021. [ 26 ] For reasons I discuss below, I find that the decision was rendered in or about 2009 when the 2009 Amending Bylaw was passed or first applied to MURPs generally. E. JURISDICTION AND STANDARD OF REVIEW 1.

Jurisdiction [ 27 ] In David Jones & Anne de Villars, Principles of Administrative Law , 7th ed, (Toronto: Thomas Reuters Canada, 2020) at 6-7, the authors described the jurisdiction of superior courts to conduct judicial review as follows: Judicial review is probably the most important means of controlling illegal governmental action. To the extent that such action may constitute a wrong otherwise known to law, the statutory delegate will have to demonstrate some legislative provision authorizing it to take the impugned action (or make the impugned decision).

The statutory delegate must be able to demonstrate that its actions fell squarely within the power granted to it by the federal Parliament or the provincial legislature. If it cannot, its actions will be considered ultra vires (that is, beyond the statutory delegate’s legal authority or jurisdiction) and void. Superior courts have the inherent power to review the legality of administrative actions performed by statutory delegates; in other words, they have the inherent power to judicially review the actions or decisions of statutory delegates. This inherent power of judicial review is

the natural consequence of the courts’ role to interpret the meaning of statutes, including determining the ambit of statutes which grantpowers to statutory delegates. Courts decide whether administrative actions are ultra vires.

Superior courts have historically used theprerogative remedies of certiorari, mandamus, prohibition, quo warranto and habeas corpus to exercise supervisory jurisdiction overinferior courts and statutory delegates. [Emphasis added] At page 12: … most jurisdictions in the Commonwealth have modernized – and simplified – the procedure for seeking judicial review byestablishing a single action known as an application for judicial review, or similar wording, which encompasses all of the prerogativeremedies as well as declarations, injunctions and even damages. [28] Because the Court is a superior court, The Queen’s Bench Act, 1998, SS 1998, c Q-1.01, contains minimal detailas to what may be reviewed in judicial review.

The Queen’s Bench Rules include certain rules specific to applications for judicial reviewat

Part 3, Subdivision 2, but those rules do not add much to assist here. Nonetheless, the parties agree that the Court has jurisdiction toreview how the City interpreted the Bylaw and made and implemented its decision to interpret. I concur. 2. Standard of Review [29] The parties agree that the standard of review is reasonableness. Creekside seeks to review a non-adjudicativeadministrative action by the City. The governing authority is Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65,[2019] 4 SCR 653 [Vavilov].

Vavilov summarized the reasonableness standard as follows: [83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, includingboth the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, atleast as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does notask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possibleconclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution tothe problem. The Federal Court of Appeal noted in Delios v.

Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “asreviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: para. 28; seealso Ryan [2003 SCC 20], at paras. 50-51.

Instead, the reviewing court must consider only whether the decision made by theadministrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. [30] The proper approach to application of the reasonableness standard was aptly described in the recent decision ofMcCreary J. (as she then was) in Saskatchewan Health Authority v Kenny, 2021 SKQB 203, as follows: [7] A decision is unreasonable when, among other things, it does not fall within a range of reasonable alternatives, defensible in lightof the facts and the law. [8] In Vavilov, the Supreme Court considered the two types of fundamental flaws that render a decision unreasonable.

The first is afailure of rationality internal to the reasoning process. The second is when a decision is untenable in light of the relevant factual and legalconstraints that bear on it. [9] Elements that inform whether the decision is reasonable include, but are not limited to, the governing statutory scheme, otherrelevant statutory or common law, principles of statutory

interpretation, the evidence before the decision-maker, the submissions of theparties, and the potential impact of the decision on the individual to whom it applies: Vavilov at para 106.

A reasonable decision is onethat is justifiable on the facts and the law: “… The decision maker must take the evidentiary record and the general factual matrix thatbears on its decision into account, and its decision must be reasonable in light of them …”: Vavilov at para 126. [10] Where reasons for a decision have been provided, as they have been in this case, a principled reasonableness review starts with athorough and respectful consideration of the reasons: Service Employees International Union-West v Saskatchewan Health Authority,2020 SKCA 113 at paras 35 and 83, 454 DLR (4th) 363. [31] In Amalgamated Transit Union, Local 615 v Saskatoon (City), 2021 SKCA 93 [Amalgamated], Jackson J.A.distilled the reasoning from Vavilov to where she asked herself three simple questions: [97] … I have asked myself these questions: (

a) Does the Refusal Decision [ (Sask LRB)] bear the hallmarks of reasonableness – justification, transparency andintelligibility – and is it justified in relation to the relevant factual and legal constraints that bear on the decision? (

b) Is there “a failure of rationality internal to the reasoning process”? (

c) Is the decision “in some respect untenable in light of the relevant factual and legal constraints that bear on it”? [32] For judicial review Vavilov ordinarily requires the Court to focus on two things: the decision-maker’s reasoningprocess (which would be the first two of Jackson J.A.’s questions), and the outcome (the third question posed by Jackson J.A.). [33] In the affidavits it filed the City offers – as background, it says – its current rationale for its decision.

The Citysays the decision was made years ago and the original reasons for interpreting the Bylaw as it did were not documented or have been lostto time. It says its current interpretive approach has long been applied to all MURPs in Saskatoon, [34] The Court’s ability to conduct the first arm of the Vavilov analysis – review of the decision-maker’s reasoning

process – may be impaired because such reasons may not exist. That turns on what the Court finds to be the decision. Because I find that the decision was made in about 2009 when the City decided to apply the same treatment to all MURPs, no reasons exist other than after- the-fact explanations. [ 35 ] Creekside argued that the decision was embodied in a letter sent by the City in 2021, in which some explanation was given. On April 21, 2021, Mr. Kowalski wrote to Creekside’s lawyers, stating as follows: I write in furtherance to your March 29, 2021 letter regarding the above noted matter.

The primary issue relates to the service charges for six , 40 millimetre irrigation metres which service 42 condo dwelling units . Bylaw 7567 , The Waterworks Byla w , 1996 (the "Bylaw") is used to calculate service charges for mult i -unit residential properties on a per metre, per month basis as shown under

Part II of

Schedule " A" . Where a metre services four or less dwelling units, the " A" service charge under

Part II of the Byla w is applied to that metre per month and where a metre services more than four dwelling units , the "B" service charge is applied to that metre per month . In your letter you provide an

interpretation of the Bylaw which is not in-line City of Saskatoon practice both from a billing and operational perspective . Dividing the number of dwelling units in a comple x by the number of metres to develop a ratio provides n o information on the perceived strain on infrastructure for each individual metre, w hich is how billing calcula ti ons are administered .

By this logic, a condo complex with three metres each servicing five units (each billed under Part "B") could add one additional metre servicing a single unit to the complex and this would bring the entire comple x billing under Part " A" with no change to load on each of the metres servicing five units . This is specious reasoning and is not in-line with the intended purpose or per metre , per month wording under the Bylaw . Of the si x metres in question, 216 and 221 service four units and are now being billed accordingly as an " A" service charge under the Bylaw.

These metres are no longer the subject of dispute. The remaining four metres service the following: 202 – 6 dwelling units 209 – 10 dwelling units 229 – 12 dwelling units 236 – 6 dwelling units As each of the above noted metres service more than fou r dwelling u ni ts , they are billed as a " B" service charge under the Bylaw in considerat io n of the additional stra in on infrastructure being placed on each metre by the i ncreased un it l oad . This i s i n-line with the purpose and intended

interpretation of the Bylaw . In view of the foregoing, it is the City's position that metres 202 , 209, 229 and 236 a r e being appropriately billed under the Bylaw. The requested resolut ion unde r yo ur letter i s not appropriate under the circumstances as it would be contrary to the purpose and i ntended

interpretation of the Bylaw . We trust this matter is now concluded . [ 36 ] That turned out not to be the conclusion of the matter. Further discussions ensued. Nonetheless, before this application was brought, that represents the clearest explanation furnished by the City as to its reasons for dismissing Creekside’s request to reconsider its

interpretation of the Bylaw . F. ANALYSIS 1. What constitutes the decision that is under review? [ 37 ] The 2009 Amending Bylaw introduced separate rates for MURPs for the first time. That could be when the “decision” was made, as the City’s administration evidently applied its current approach to MURPs starting then. The Certified Record contains a November 9, 2009 report [2009 Report] from the administration to Council that discussed the rationales for creating a separate set of rates for MURPs. That report included a

section discussing a strategy to address potential inequities in the rate structure applicable to condominium/multi-unit dwellings. Starting at page 6, the 2009 Report stated: In t h e s pring of 2009, Administration met with the association repre se nting Sa s katoon condominium owners t o ge t a better under s t a ndin g of the is s ues th ey were facing. Based o n thi s di sc u ss i o n , Admini s tration reviewed the impact of movin g all condom inium units to equiv a l ent r es idential rates.

T hi s a nal ysis s h owed that as a who l e, if this approach were impl emented, condominium owne r s wo uld pay an add iti ona l $288,000 in wate r and wastewater bi ll s per year . Developments that have very few l arge meters se rving many residential unit s were li ke l y to see an increase in cos t , wh ile developments with man y m e t ers in additi o n to irrigation meters were likely to see a decrease in costs. Individually-metered condo units with irrigation services are properly categorized as residential services and the residential rate applied.

However, the condo owners are charged the commercial rate for their irrigation water services. This is more properly viewed as residential consumption, and the Utility has recovered fixed costs through the individual meters. The irrigation service will have the service charge waived and the residential volumetric rates applied. A separate category for multi-unit dwellings will be established. This will enable the City to properly label this group on their bills, and will segregate this customer group for its own unique rate in the future.

The multi-unit dwelling category will be for residential dwellings with more than four dwelling units that are not individually metered. Multi-unit dwellings, where the number of dwelling units per meter is four or less, will be charged the residential rate.

Multi-unit dwellings, where the number of dwelling units per meter is more than four, will be charged the commercial rate. [ 38 ] The 2009 Report did not address, at least head-on, the core question here of whether an overall complex’s ratio of units to meters would govern use of the A Rates as opposed to B Rates, or whether that would be done on a meter-by-meter basis,

though the first two paragraphs in that passage may offer modest guidance. In any event, that is the extent of discussion in the 2009Report that could possibly bear on this application. [39] The City contends that the decision was made when the B Rates were first applied to the Larger Meters, thoughno date for that was provided to the Court. Creekside was incorporated as a condominium corporation in 2001, so it was in existencebefore the 2009 Amending Bylaw was passed. Thus, if all MURPs have been treated the same since the 2009 Amending Bylaw was firstimplemented, it would have been that point of implementation.

In her affidavit on behalf of Creekside, Karen Smith avers that she wasable to ascertain that the Larger Meters had been billed at a higher rate since at least 2011. [40] Creekside argues that the decision was a letter from Derek Kowalski, likely the one dated April 21, 2021. Thatis certainly the most direct pre-application explanation of the City’s position. [41] The City’s submissions spoke to the broader implications of this application. Creekside asks to have many yearsof what it views as overcharges refunded.

The City calculated the cost of doing that for a dozen years and for over 100 MURPs, which itestimated at about $12 million. That point was made in their argument that the application should fail for delay, but that, and anothercomment from the City, speaks to what/when the decision was. The City consistently applies its

interpretation of this issue to all MURPsin Saskatoon, of which there are about 100. [42] In my opinion, those broader implications inform the determination of what constitutes the decision. Thedecision was not made simply for Creekside. It was applied to all MURPs, as to how to apply the Bylaw and in particular how to decidewhether the A Rates should be applied, or the B Rates.

That the Court does not have a contemporaneous full articulation of that decisiondoes not detract from it having been made then (even if exactly when is also an unknown, as the evidence does not address whenimplementation of the 2009 Amending Bylaw began). [43] I find that the decision under review was made when the City administration decided to implement the 2009Amending Bylaw by (in part) using the ratio of units to meters on an individual meter basis (as opposed to the ratio for an entire condocomplex) [Decision]. The Decision was likely made in 2009 or 2010. 2.

Is the Decision capable of being reviewed under the first leg of the Vavilov test for reasonableness? [44] Because no contemporaneous articulation of the Decision exists now, it is not possible for the Court to know orevaluate the decision-maker’s reasoning process. All that is capable of review is the Decision itself. 3. Is the Decision reasonable? [45] The question posed in Vavilov and adopted in Amalgamated was: is the Decision in some respect untenable inlight of the relevant factual and legal constraints that bear on it? That necessitates a close examination of the Bylaw to determine whetherthe City’s

interpretation falls within the range of reasonable alternatives. The 2009 Report may also be relevant. [46] The correct approach to statutory

interpretation was summarized by Kalmakoff J.A. in Stacey Estate vLukenchuk, 2020 SKCA 55, [2020] 8 WWR 668, as follows: [38] The proper approach to statutory

interpretation was recently explained by Schwann J.A. in PCL Construction Inc. v Saskatoon(City), 2020 SKCA 12: [45] The proper approach to issues of statutory

interpretation is the so-called modern approach – see Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 [Rizzo Shoes] – which has now been codified in s. 2-10(1) of The Legislation Act, SS 2019, cL-10.2: see also ATCO Gas & Pipelines Ltd. v Alberta (Energy & Utilities Board), 2006 SCC 4 at para 37, [2006] 1 SCR 140, and LiquidCapital Propane Corp. v Mainline Industrial Limited Partnership, 2019 SKCA 66 at para 26, [2019] 11 WWR 310 [MainlineIndustrial]). This principle or approach holds that “the words of

an Act are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo Shoes at para 21,quoting Elmer Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1993) at 87). Benefit-conferring statutes “ought to beinterpreted in a broad and generous manner” (Rizzo Shoes at para 21). Further, s. 2-10(2) of The Legislation Act requires every enactmentto be interpreted in a remedial fashion and be given a “fair, large and liberal

interpretation” that best attains the objects of the statute. [39] In Ballantyne v Saskatchewan Government Insurance, 2015 SKCA 38, 457 Sask R 254, Ryan-Froslie J.A. wrote: [19] The leading case with respect to statutory

interpretation is the Supreme Court of Canada’s decision in Re Rizzo & Rizzo ShoesLtd., (SCC), [1998] 1 SCR 27 [Rizzo Shoes]. A number of principles set out in that case are applicable to the case athand, namely: 1. The words of

an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, its objects, and the intention of the legislature (See: Rizzo Shoes at para. 87). (See also: Saskatchewan Government Insurance vSpeir, 2009 SKCA 73 at para 20, 331 Sask R 250; and Acton v Rural Municipality of Britannia, No. 502, 2012 SKCA 127 at paras 16-17, [2013] 4 WWR 213 [Acton]). 2. The legislature does not intend to produce absurd consequences. An

interpretation can be considered absurd if it leads to ridiculous orfrivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with otherprovisions or with the object of the legislative enactment (See: Rizzo Shoes at para. 27). 3. Any statute characterized as conferring benefits must be interpreted in a broad and generous manner (See: Rizzo Shoes at para. 21).This principle is enshrined in s. 10 of The

Interpretation Act, 1995, SS 1995, c. I-11.2 (See: Acton at paras. 16-18). 4. Any doubt arising from difficulties of language should be resolved in favour of the claimant (See: Rizzo Shoes at para. 36).

[20] In Sullivan on the Construction of Statutes , 6th ed (Markham: LexisNexis, 2014) at 28-29, Ruth Sullivan sets out three propositions that apply when interpreting the plain meaning of a statutory provision: 1. It is presumed that the ordinary meaning of a legislative text is the meaning intended by the legislature. In the absence of a reason to reject it, the ordinary meaning prevails. 2.

Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations including purpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities to be avoided and the like. 3. In light of these considerations, the court may adopt an

interpretation that modifies or departs from the ordinary meaning, provided the

interpretation adopted is plausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning. [40] In Canada Trustco Mortgage Co. v Canada , 2005 SCC 54 , [2005] 2 SCR 601, the Supreme Court of Canada explained how ambiguous wording in a statute may affect its

interpretation when applying the modern approach set out in Rizzo Shoes : [10] … The

interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of

an Act as a harmonious whole. [ 47 ] Creekside also cited Nova Tube Inc./Nova Steel Inc. v Conares Metal Supply Ltd. , 2019 FCA 52 [ Nova Tube ] as an example of a properly conducted review of

interpretation of a statutory provision on the reasonableness standard. At paras. 24-25, the Court in Nova Tube explained the possible alternatives: [24] The Supreme Court has stated that “[w]here the ordinary tools of statutory

interpretation lead to a single reasonable

interpretation and the administrative decision maker adopts a different

interpretation, its

interpretation will necessarily be unreasonable” : McLean v. British Columbia (Securities Commission) , 2013 SCC 67 at para. 38 , [2013] 3 S.C.R. 895; see also B010 v. Canada (Citizenship and Immigration) , 2015 SCC 58 at paras. 26 , 76, [2015] 3 S.C.R. 704. [25] However, the statutory

interpretation process does not always yield a single reasonable answer. Where a legislative provision is capable of more than one reasonable

interpretation, and the tribunal has adopted one of them, “the resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker,” and the burden rests on the parties challenging the tribunal’s

interpretation “not only to show that [their] competing

interpretation is reasonable, but also that the [tribunal’s]

interpretation is unreasonable ” : McLean at paras. 32-33, 40-41 (emphasis in original). [ 48 ] Creekside contends that the Bylaw is capable of only one reasonable

interpretation concerning the ratio issue, such that the City’s

interpretation must be unreasonable. I will outline Creekside’s

interpretation next. (

a) Creekside’s

interpretation of the Bylaw [ 49 ] Creekside refers to ss. 3(g.1), 3(g.2) and 41 of the Bylaw , along with the language in the openings of

Part II A and

Part II B.

Part II A states that it applies where “the ratio of dwelling units to meters is less than or equal to four”.

Part II B applies where “the ratio of dwelling units to meters is greater than four”. [ 50 ] Creekside contends that a plain reading of

Part II A does not contemplate different units within the same MURP being billed divergent rates. In oral submissions, Creekside went somewhat further, arguing that the Bylaw does not permit units within a development to be billed at different rates. [ 51 ] Nor, says Creekside, does

Part II A (or

Part II

B) address the number of dwelling units within a MURP that are serviced by a particular meter. [ 52 ] Creekside says that the only stated factor is the ratio for the MURP. They say this is buttressed by s. 38(6), which mandates that water shall be billed “according to the rate applicable to the class of property to which the service is provided.” The Bylaw contemplates only three classes of property: (

a) commercial and industrial, (

b) residential, and (

c) MURPs. [ 53 ] They also point to the legislative history of the Bylaw and the 2009 Report. From the excerpt above, they highlight these underlined passages: Individually-metered condo units with irrigation services are properly categorized as residential services and the residential rate applied. However, the condo owners are charged the commercial rate for their irrigation water services.

This is more properly viewed as residential consumption, and the Utility has recovered fixed costs through the individual meters. … … T he multi-unit dwelling category will be for residential dwellings with more than four dwelling units that are not individually metered. Multi-unit dwellings, where the number of dwelling units per meter is four or less, will be charged the residential rate.

Multi- unit dwellings, where the number of dwelling units per meter is more than four, will be charged the commercial rate. [ 54 ] In its brief, Creekside argues: 56 … The 2009 Memo advocates for the creation of a new category or class of property - the "multi-unit residential property" - which, depending on the ratio of units to meters , will be charged a unique rate. The rational for this change is to reflect the fact that condominium developments with a lower ratio of units to meters should be charged residential rates for their water services.

The drafters of the 2009 Memo acknowledge that the owners of this type of property should not be charged commercial rates for their domestic water

use. Note that the 2009 Memo considers irrigation (i.e. landscape watering) to be residential consumption. (

b) The City’s

interpretation of the Bylaw [ 55 ] The City’s view of the legislative history differs from Creekside. The prior

Schedule “A” provided for only two rate categories, “Domestic Service” and “Industrial and Commercial Service”. For “Domestic Service”,

Schedule “A” provided: The following rates and charges shall apply to all consumers utilizing water exclusively for domestic purposes through a single meter servicing no more than four living units or apartments. [ 56 ] A customer that did not qualify as domestic was subject to the higher Industrial and Commercial Service rate.

Thus, before the 2009 Amending Bylaw was passed, the differentiating factor was whether a single meter serviced four or more living units or apartments. [ 57 ] Thus, the City says, before January 1, 2010, when the 2009 Amending Bylaw came into effect, the language clearly indicated on its face that the ratio was to be calculated for each meter. [ 58 ] The 2009 Report recommended the changes to

Schedule “A” made in the 2009 Amending Bylaw in part to lower the cost of water to condominium complexes that had separate irrigation meters. If all MURPs paid only a single rate for each entire complex, that would render the inclusion of Irrigation Metered Service in the A Rates, while no such provision is found within the B Rates. At this point, the City’s argument becomes quite granular, delving into utilization volumes of the Development and whether it would benefit from having a separate irrigation meter if paying A Rates. [ 59 ] According to the City, Creekside’s

interpretation would create an inappropriate loophole: MURPs could avoid costs by attaching the irrigation line for many units to a meter serving a single residential unit. That meter would have the A Rates apply, but demand on the City’s infrastructure would greatly exceed the potential volume demand for small residential uses. The City argues that the rates are designed to balance demand and user cost, that irrigation is a significant draw on the City’s potable water systems and can increase volumetric use by 50% or more during summer.

Only if the irrigation is tied to dedicated meters can the City separate out irrigation services for billing purposes. [ 60 ] The City acknowledges that the Bylaw could be more clearly drafted in respect of this issue but maintains that its

interpretation is reasonable. (

c) Is the City’s

interpretation of the Bylaw reasonable? [ 61 ] The City’s argument – that the

Schedule “A” provisions before the 2009 Amending Bylaw clearly indicated on its face that the ratio was to be calculated for each meter, and that such history supports its position – may actually work against it, as the 2009 Amending Bylaw effectively repealed that language. It does, however, support that historically, through 2009, that was how the City classified properties (or meters) for billing purposes. An

interpretation under the current Bylaw that ratios would be calculated for each meter would not represent a change from before. [ 62 ] The Bylaw now does not contain that clarity. If Council’s intention was that the ratio per meter would govern (as opposed to ratio for an overall development), that would have been simple to include in the Bylaw . Council could easily have added the following underlined language to the opening of

Part II A: “Where the ratio of dwelling units to meters ( calculated on a meter-by-meter basis and not by the ratio for an overall condominium complex ) is less than or equal to four …” Doing so would eliminate all doubt. Or even having the ratio apply “for a meter” could have the same effect. (Indeed, the City indicated that if I decide in favour of Creekside, they would move quickly to amend the Bylaw to add that clarity, though that is not a factor in how the Court will decide.) [ 63 ] Nonetheless, the reasonableness test does not require that there be no doubt as to the proper

interpretation. Rather, the City’s

interpretation need only be reasonable, i.e., not untenable in light of the relevant factual and legal constraints that bear on it. [ 64 ] I find that the City’s

interpretation to be reasonable as to whether the determination is to be made meter by meter (as opposed to calculating the ratio for the entire development) is reasonable. I will explain. [ 65 ] Creekside’s argument relies heavily on the reference in s. 38(

g) to water being billed out at rates applicable “to the class of property to which the service is provided”, combined with

Part II A and

Part II B referring to “the ratio of dwelling units to meters” with “meters” in plural. Nonetheless, those words are not enough to eliminate any reasonable possibility of the ratio being calculated by meter rather than a ratio for an overall complex. Creekside offers no arguments that suggest that calculating the ratio on a per meter basis would create a contradiction with any aspect of the Bylaw . [ 66 ]

Part II of

Schedule “A” provides for six types of charges in

Part II A: a. Service charges, which are imposed on a per month, per meter basis; b. Volumetric charges, which escalate as use increases (one rate for the first 17 cubic metres per month, a higher rate for the next 17 cubic metres, and an even higher rate for all use in excess of 34 cubic metres); c. An infrastructure charge by volume of use but without any escalation; d. A minimum monthly charge, which again is by meter by month so that extremely minimal usage will still result in a charge; e.

Irrigation metered service (discussed above), which is available only to individual metered condominiums with separately metered irrigation systems. That provision states: “Individually metered condominiums with separately metered irrigation services shall pay the

residential volumetric and infrastructure charges per meter for the irrigation service …”, and then a constant (non-escalating) charge per cubic meter is set out; and f. Infrastructure charges, which are a constant unit charge by volume. There is no service charge per meter applied to irrigation meters. [ 67 ]

Part II B, which applies where the ratio of dwelling units to meters is greater than four, establishes rates for the following: a. Service charges, which are imposed on a per month, per meter basis, and are higher for the same meter size compared to the A Rates; b. Volumetric charges, which are set at a single constant rate as opposed to escalating as use increases; c. A constant infrastructure charge by volume used; and d. A minimum monthly charge. [ 68 ] The provisions concerning irrigation metered service in

Part II A are important. They apply only to “individually metered condominiums”. In other words, whether the irrigation meter rates are available depends not on the complex’s overall ratio, but on whether there is a meter for each individual unit. It is on a meter-by-meter basis. It therefore cannot be argued that no aspect of

Part II is meter by meter. [ 69 ] Given that portions of the A Rates and B Rates are calculated per meter , it follows that it is reasonable to interpret

Part II of

Schedule “A” to operate in the same manner overall. [ 70 ] That also aligns with the City charging on a meter-by-meter basis. The few words focused on by Creekside provide support to its position, but not so as to overwhelm the possibility that the City’s stance be accepted as a reasonable

interpretation. Taken as a whole, the City’s logic underpinning its

interpretation on the question addressed in this

section is enough to support that it is a reasonable one, even though it is not consistent with the actual words used in the Bylaw (and in particular the question of whether the word “meters” should be interpreted in the singular or plural where it appears). [ 71 ] However, that does not end the matter. (

d) Impact of the term “dwelling units” [ 72 ] In drafting this judgment, I encountered a question on which the Court had not received submissions from counsel. I sought and received additional written submissions to address the point. The question I posed to counsel was effectively as set out in the next paragraph. [ 73 ] The evidence indicates that the Larger Meters at Creekside service irrigation use plus two residential units each. In deciding whether

Part II A or

Part II B of

Schedule “A” applies, the City contends that ratio is to be calculated on a meter-by-meter basis. On the assumption that the City’s position on that is found to be reasonable (which above I find to be the case), is the City’s application of the B Rates to the Larger Meters reasonable when the ratio is to be calculated on the basis of the “ratio of dwelling units to meters”, with no express mention of whether irrigation is also serviced by a meter? (

i) Parties’ positions [ 74 ] Focusing on the term “dwelling units”, Creekside argues that the City’s

interpretation of the Bylaw is unreasonable because at the Development no meter serves more than two or three residential dwelling units, which would call for application of the A Rates.

On the language of the Bylaw , the types of service provided by a single meter that is not a dedicated irrigation meter is irrelevant when the Bylaw states that the ratio is to be calculated on the ratio of dwelling units to meters. [ 75 ] Creekside further argues that even if the City were permitted to consider the number of services provided by a single meter and calculate the required ratio on that basis, the A Rates would still apply because at most a single meter would serve three dwelling units and one irrigation service. [ 76 ] The City argues that the supplementary question I posed goes to the heart of the ambiguity in the Bylaw : “As none of Creekside’s water meters services more than four indoor residences, how can the City charge any of them the B rates?” [ 77 ] The City answers that query that it posed by turning to the difference between the A Rates and the B Rates, explaining that the A Rates offer lower monthly service charges and a staggered rate for volumetric use.

If less water is used through a meter, it gets the best rates. The B Rates offer lower volumetric rates and higher monthly service charges. They are suitable for users who require a high water volume, which helps to recover the higher service charges.

The A Rates have rates for irrigation-only meters, while the B Rates do not. [ 78 ] The City says that it would neither expect nor permit the water meter at a property to also be used to water lawns of six other houses on a block and asks, if such an anomaly were to arise, would it not be reasonable to charge that property under the B Rates as a Multi-Unit Residential Property? [ 79 ] The City contends that Creekside’s

interpretation would lead to an absurd result, such that it is reasonable to interpret “dwelling unit” to include the lawn for that dwelling unit and that irrigation provided to such lawns is a reasonable expectation behind the purpose of having two rates.

(ii) Analysis [80] On this question, I cannot accept the City’s position and find that its

interpretation of the Bylaw is unreasonable. [81] As the issue was initially framed, it turned largely on whether the ratio was to be calculated on a per meter basisor for the entirety of the Development (or any other such development). [82] The City acknowledges that at least the portions of the Bylaw are not well-drafted to achieve the outcome ofhow it has been applying it to multi-unit residential properties. With respect to this issue, the City’s argument amounts to the following:ignore completely the words in

Part II A and

Part II B intended to define which of the A Rates and B Rates apply, and rely entirely onthe internal logic of how the rates themselves are set out and our explanations of why we do what we do. [83] The starting point of

interpretation is always the plain wording of the section. The plain wording of the openingportions of

Part II A and

Part II B is that which rates apply is to be determined by the “ratio of dwelling units to meters”. I already havedetermined that “meters” is to be interpreted on a meter-by-meter basis. The term “dwelling units”, while not defined in the Bylaw, is notitself ambiguous even with regard to

Schedule “A” overall. Its ordinary meaning in the context of the Bylaw connotes units within amulti-unit residential property in which people dwell, i.e., homes. [84] The City’s evidence repeatedly refers to the object of the Bylaw as making the water service obtain full costrecovery from charges to meters, without turning a profit; in other words, to consistently break even. Nothing in the Bylaw says that.

Thereport that the City’s administration provided to Council in 2009 in support of the recommendation that Council adopt the 2009Amending Bylaw stated that when considering the proposed rate plans for 2010 through 2012, one of four objectives considered by theadministration was “Ensure that revenue will cover operating and capital costs required to sustain the City’s water treatment, wastewatertreatment, water distribution, and wastewater collection systems.” (Another objective was to address potential inequities in the ratestructure for condominium/multi-unit dwellings). [85] However, that objective does not necessarily lead to adoption of the City’s

interpretation. It points to overallrevenue and the setting of rates. That does not translate to the specific

interpretation advanced here by the City. Council could causerates to be set annually to ensure that the water utility breaks even, irrespective of whether I uphold the City’s

interpretation. [86] The same report states, in the

section covering potential inequities in the rate structure for condominium/multi-unit dwellings: … Developments that have very few large meters serving many residential units were likely to see an increase in cost, whiledevelopments with many meters in addition to irrigation meters were likely to see a decrease in costs. Individually-metered condo units with irrigation services are properly categorized as residential services and the residential rate applied.However, the condo owners are charged the commercial rate for their irrigation water services.

This is more properly viewed asresidential consumption, and the Utility has recovered fixed costs through the individual meters. The irrigation service will have theservice charge waived and the residential volumetric rates applied. A separate category for multi-unit dwellings will be established. This will enable the City to properly label this group on their bills, andwill segregate this customer group for its own unique rate in the future. The multi-unit dwelling category will be for residential dwellingswith more than four dwelling units that are not individually metered.

Multi-unit dwellings, where the number of dwelling units per meteris four or less, will be charged the residential rate. Multi-unit dwellings, where the number of dwelling units per meter is more than four,will be charged the commercial rate. [87] That excerpt represents virtually all of the discussion in the report concerning multi-unit dwellings andcondominiums. It speaks to whether dwellings are individually metered, and the ratio of dwelling units to meters, but does not begin tosupport the

interpretation proposed by the City. [88] To find for the City on this issue, the Court would need to essentially ignore the actual words used in ScheduleA

Part II – that the determination of whether A Rates or B Rates apply is made by calculating the ratio of dwelling units to meters. [89] The City argues that “the potential draw from irrigation is a necessary extension if the purpose of offering thetwo rates is to be adhered to.” [90] There are similarities between interpreting contracts and statutes. In DaimlerChrysler Financial Services (Debis)Canada Inc. v Mega Pets Ltd., 2002 BCCA 242, 212 DLR (4th) 41, a case involving both contractual and statutory

interpretation (butspecifically in the context of contractual

interpretation), the British Columbia Court of Appeal observed the following: [23] Although the trial judge was purporting to give effect to the "substance" rather than the "form" of the transaction betweenDaimlerChrysler, Mega Pets and Mr. Kenal in finding that the latter was in reality a guarantor, I am of the opinion that she erred in herconstruction of the sale agreement and her characterization of Mr. Kenal's role. The terms of the agreement were clear and unambiguous,and although it might have been more 'usual' for him to have become a guarantor, that is simply not what happened.

He agreed tobecome jointly and severally liable for the obligation to pay for the vehicle and in so doing, also became a co-owner. There was nosuggestion that what he signed was a sham or was fraudulent in any way. With all due respect, I believe the trial judge incorrectlypermitted the "context" to overwhelm the plain meaning of the document before her. As Donald J.A. observed for the Court in BlackSwan Gold Mines Ltd. v.

Goldbelt Resources Ltd. (1996), (BC CA), 25 B.C.L.R. (3d) 285, "The words of the contractmust not be overwhelmed by a contextual analysis, otherwise there is little point in writing things down." (para. 19) [Emphasis added] [91] Similarly, in Mosten Investments LP v The Manufacturers Life Insurance Company (Manulife Financial), 2021

SKCA 36, [2021] 9 WWR 1, the Court of Appeal stated: [243] … But, even if all of this evidence was properly admissible and brought to bear, it would give rise to interpretive friction of thenature Rothstein J. found unacceptable in Sattva, where he said surrounding circumstances “must never be allowed to overwhelm thewords of [the] agreement” and that interpreting courts “cannot use [surrounding circumstances] to deviate from the text such that thecourt effectively creates a new agreement” (at para 57). [92] It is an error to read a provision in isolation or fail to read a portion of a statutory provision without consideringthe statute as a whole, including its purpose and objectives.

It is an error to interpret a statute so as to create an absurd result.Nonetheless, it must also be an error to ignore plain and unambiguous words in a statute. As noted in Sattva Capital Corp. v CrestonMoly Corp., 2014 SCC 53, [2014] 2 SCR 633, that creates an interpretative friction. That friction also exists in legislative

interpretation. [93] Though the City correctly observes that legislation should not be interpreted as creating an absurd result, andRizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27, requires that words in a statute be read in their context and intheir grammatical and ordinary sense harmoniously with the scheme of the legislation, its objects, and the intention of the legislature, itis not appropriate to interpret words in a statute that direct to one treatment or another without any reference to those words at all, relyingsolely on context. At some point the central words of a provision must be expected to themselves have meaning. The City’s

interpretationfar more than strains the meaning of “dwelling units”; it renders those words irrelevant. [94] As for what the City contends are absurd results, any absurdity is a product of the conflict between the keywords of “ratio of dwelling units to meters” and the City’s overly purposive approach that nowhere says with any clarity that whereirrigation of multiple units is served by a meter, the number and ratio of dwelling units becomes irrelevant. [95] In my opinion, the Decision was not reasonable as it pertains to the question posed in this section.

The City’sinterpretation overwhelms the plain meaning of the term “dwelling units”, which is impermissible even on a reasonableness standard. 4. Limitation period and delay [96] For two reasons the City argues against the recovery of overpayment sought by Creekside. Section 307(1) ofThe Cities Act provides for a one-year limitation period for claims against the City. It applies here. It is not my view that once the initialDecision was made, that is when the limitation period began to run, once and only once.

Rather, as the Bylaw was amended, and newbills were sent regularly billing the Larger Meters at the B Rates, that limitation period would be re-set. [97] Thus, the furthest back the Court can possibly reach back is February 15, 2021, one year prior to service of theOriginating Application on the City. [98] The City also argues that repayment should not be ordered due to delay by Creekside. It is uncontroverted thatCreekside did not become aware of how the City was billing for water until October 2019 at the earliest. [99] Rule 3-56(3) of The Queen’s Bench Rules provides as follows: 3-56 …

(3) Subject to rule 3-63 and any enactment limiting the time in which an originating application for judicial review may be made, ifthere has been undue delay in making an originating application, the Court may refuse to grant any remedy sought if the order: (

a) would be likely to cause substantial hardship to or substantially prejudice the rights of any person; or (

b) would be detrimental to good administration. [100] That Rule underpins the City’s delay argument. It calls for two steps of analysis. First, has there been unduedelay? Second, has the delay caused substantial hardship or prejudice such that granting a remedy would be detrimental to goodadministration, such that the Court should exercise its discretion not to grant a remedy? [101] In Amalgamated, Jackson J.A. held that a delay of four years “tests the limits of what is undue delay for anapplication for judicial review”: para. 143.

Not only did the applicant union take four years, but by the time the final decision it sought toreview had been rendered, it already had in hand three decisions from the relevant board that indicated that the issue in question had beendecided. [102] Here, the City argues that the failure to discover the Decision does not change when it took place – in 2009. Italso contends that after the Decision was discovered, Creekside took over two years to commence this application in February 2022.

TheCity cites Risseeuw v Saskatchewan College of Psychologists, 2019 SKCA 9 at para 26, 437 DLR (4th) 681 [Risseeuw], for theproposition that the preference of a judicial review applicant for extra-judicial measures does not normally amount to a satisfactoryexplanation for delay in bringing a court application. [103] After referring to two decisions of this Court, the Court of Appeal stated: [26] … The reasoning underpinning both decisions appears to be grounded in the notion that resort to extra-judicial measures or tooffice holders who do not possess the legal authority to legally effect the impugned result does not normally amount to a satisfactoryexcuse for delay in bringing judicial review proceedings.

I agree with that reasoning. [Emphasis added] [104] One of the decisions referred to in Risseeuw was Warner v Saskatchewan (Workers' Compensation Board), 2007SKQB 76, 292 Sask R 283. There, Currie J. was faced with an application for judicial review to quash decisions of a medical review

panel made several years earlier and to reinstate benefits for that period. He stated: [5] In considering a delay in making an application for judicial review, I am to determine whether the delay was undue. If it was, then Iam to determine whether granting the relief sought is likely to cause substantial hardship or substantial prejudice, or would bedetrimental to good administration. If so, I may exercise my discretion to refuse to grant the relief sought: Henry v. Saskatchewan (Workers’ Compensation Board) (1999), (SK CA), 172 D.L.R. (4th) 73 (Sask.

C.A.) at paras. 70-72. [105] Here, Creekside was actively engaged with various persons in the City’s administration to attempt to gain anunderstanding of why it was being billed higher for the Larger Meters, and then attempting to persuade the City to change its approach.The City made the Decision, and had the legal ability to revisit it, whether wholesale or for this particular Development. [106] After first discovering that there seemed to be a billing anomaly, Creekside did not spend its time asking anombudsman or the provincial government for assistance (or anything analogous).

Rather, they communicated regularly with individualsat the City, initially attempting to find a person who could explain the issue to them. Their emails did not always result in responses. TheCity’s explanation of its position was not provided fully until spring 2021, when Derek Kowalski became involved. [107] During that time, some responses from the City required investigation and consideration by Creekside’s Board.The main example was the City’s suggestion that Creekside could install separate irrigation meters, which Creekside ultimatelydetermined would cost over $70,000.

The process of considering that consumed several months for Creekside. [108] Once Creekside had completed those investigations, it sought to persuade the City to alter its position, involvinglegal counsel. Those communications started with Creekside’s lawyers sending a letter to the City on March 29, 2021. Unlike inRisseeuw, Creekside was communicating with the one party (other than this Court) that had the legal ability to change how water wasbeing billed. On June 25, 2021, Mr. Kowalski unequivocally stated that the City would not alter its

interpretation of the Bylaw. Creeksidethen made one more effort to change the City’s mind and was rebuffed in autumn 2021. This application was commenced in February2022. In my opinion, Creekside pursued the issues diligently and with sufficient dispatch in the circumstances, and there was no unduedelay. I am satisfied with Creekside’s explanations on that point. [109] If I am mistaken about whether there was undue delay, I do not view the second part of the test (set out in Rule 3-56(3)(

a) and (b)) to be satisfied. No substantial prejudice will be suffered by the City, nor is there a threat to good administration. In myview, it is relevant that there was no definitive decision that either party could point to. This is very unlike judicial review of an issueddecision by an administrative tribunal, or challenge of a bylaw. [110] The City points to the fact that The Cities Act sets a maximum time of six months to challenge a bylaw orresolution on the basis of illegality or procedural non-compliance, saying that it would be strange if an illegal bylaw could no longer bechallenged after six months but that the

interpretation of a legal bylaw could be challenged long after. [111] I cannot agree with the City’s contention that this application equates to the challenge of a bylaw. When a bylawor resolution is passed by Council, there is public notice. An individual can obtain such bylaws or resolutions. They are, in effect,published, including by being available on the City’s website. There is no corresponding publication of

interpretations applied by theCity’s administration to trigger the running of an ascertainable and definitive time limit. [112] In my view, that same logic bears on the application of Rule 3-56(3) here. It is not contrary to goodadministration for Creekside to have attempted to persuade the City to reconsider its

interpretation of the Bylaw, when the City had thelegal power to do so. Nor is it detrimental to good administration, or unreasonably prejudicial to the City, for a party to raise an issueregarding an unpublished administrative

interpretation decision even several years after it is made, provided that the one-year limitationperiod in s. 307(1) of The Cities Act is not ignored. [113] The City argued that it will suffer prejudice because this decision could affect about 100 MURPs. Based on therestitution back to 2014 that Creekside was seeking, the City calculated that it could suffer an overall shortfall of $12 million: $10,000per year for 12 years for 100 MURPs. Given the one-year limitation period, the City’s maximum liability should not exceed $1 million,but even that is not a reason to hold that the City has suffered prejudice.

Further, no detail was provided as to the circumstances of otherMURPs, even anonymously. [114] Council has the power to amend the Bylaw in short order. Indeed, counsel for the City advised the Court that itwould do just that in the event of an adverse decision. How many MURPs would seek similar recompense is entirely speculative,particularly if the City will move swiftly to resolve the problem with its

interpretation. [115] Even if I am mistaken as to whether there was undue delay on the part of Creekside, I would not exercise mydiscretion to deny a remedy to it on the basis of substantial prejudice to the City or detriment to good administration. G. CONCLUSION [116] I find that Creekside has established that the City’s

interpretation of the Bylaw was unreasonable. Its applicationfor judicial review is allowed.

The City shall refund to Creekside the difference between the B Rates charged to Creekside, and the ARates that were required to be charged pursuant to the Bylaw, dating back to the charges for the month of March 2021, which is themaximum claim that Creekside is entitled to assert pursuant to s. 307(1) of The Cities Act. [117] The parties advised me during oral submissions that they would have little difficulty arriving at an agreement tothe amount of a refund if I were to find for Creekside, and I will leave that calculation to them. [118] If they cannot agree, either party may write to the local registrar to request a conference call with me, providedthat they shall serve and file a detailed letter explaining any remaining disputes and how they propose to resolve them.

The other partymay file a response. This shall not be an opportunity to re-argue any other issues determined herein.

[ 119 ] Creekside shall have its taxable costs of this application. J. D.G. GERECKE