Lacombe (County) v Radomsky, 2023 ABKB 421

Court of King’s Bench of Alberta Citation: Lacombe (County) v Radomsky, 2023 ABKB 421 Date: 20230713 Docket: 2210 00074 Registry: Red Deer Between: Lacombe County Applicant - and - Leslie Burke Respondent Docket: 2210 00075 Registry: Red Deer Between: Lacombe County Applicant - and - Trevor Radomsky and Jill Radomsky

Respondents ___________________________________________________ Reasons for Decision of the Honourable Justice G.D.B. Kendell _______________________________________________________ Introduction [ 1 ] The County of Lacombe applies under s 554 of the Municipal Government Act , RSA 2000 c M-26 ( MGA ), for an injunction requiring the Respondents, Leslie Burke, Trevor Radomsky, and Jill Radomsky, to connect their properties to a communal sewer system as mandated by Bylaw 1327/20.

The Respondents concede they have not connected their properties to the system, but argue that the bylaw is unlawful because: • it is contrary to the Sylvan Lake Intermunicipal Development Plan (the IDP); and • it is arbitrary because there is, as yet, no functional regional wastewater system. [ 2 ] The Respondents are, in effect, seeking to invalidate Bylaw 1327/20; the Bylaw is virtually identical to the Bylaw at issue in Kozak v Lacombe (County) , 2017 ABCA 351 . Mr. Kozak, a Sylvan Lake homeowner, challenged the vires of Bylaw 1203/15 by originating application.

The Court of Appeal upheld Bylaw 1203/15 as coming within ss 7(g), 8(

a) and (9) of the MGA , and by implication s 37 of the MGA (at para 73). The Respondents distinguish Kozak on the basis that the IDP was not in effect at the time and therefore the Court of Appeal did not consider its effect. [ 3 ] The Respondents’ argument raises the question of whether this is the appropriate venue to challenge the validity of a bylaw by raising it as a defence to an injunction application; as illustrated in Kozak , such applications are properly brought by originating application seeking a declaration.

It is not necessary to decide this question here, as I conclude that the IDP does not prohibit the Bylaw and that the Bylaw is not arbitrary. Facts [ 4 ] The Respondents emphasized that the private septic tanks that they currently operate were installed to protect the environment and have operated without incident. The Sylvan Lake Communal Sewage Bylaw (Bylaw), which was re-enacted on several occasions in substantially similar form, requires all landowners to connect to a communal sewer system.

Although the Originating Application filed in January 2022 referred to Bylaw 1327/20, when the matter was heard before me in February 2023, Bylaw 1364/22 had been enacted, and Counsels’ written and oral submissions were made in reference to Bylaw 1364/22. According to the Respondents, the communal system is a larger version of the system of the one they currently operate, which is required to be periodically emptied and trucked to the same treatment plan.

The communal plan contemplates being connected to a regional system, which has yet to be constructed, and for which there is no date certain for completion. [ 5 ] The County emphasized that the Bylaw requires each individual landowner to construct and install the service connection from the boundary of the property to the premises and pay the connection fee. The County first wrote the landowners in March 2016 regarding these requirements. However, due to a different challenge to the lawfulness of the Bylaw, there was substantial delay: Kozak .

The County further wrote to the Respondents on March 20, 2018 and May 21, 2019, requiring the work to be completed by October 31, 2020, which was extended by one year. [ 6 ] On November 2, 2021, the County advised the Respondents that if they did not complete the connection within 30 days, the County would undertake the work and charge the costs of doing so to the tax rolls. The County commenced these actions by Originating Application, and the separate actions were heard together. The Parties’ Positions [ 7 ] The County relies on MGA,

section 554 for a mandatory, statutory injunction. They argue that such an injunction should only be refused in “exceptional circumstances” ( Calgary (City) v. Bullock , 2011 ABQB 764 , at para 30 ). The fact that the landowners have an existing and well-functioning sewage system should not mean that landowners may be permitted to opt-out from the communal scheme ( Kozak , at para 72 ).

The County argues that the IDP cannot derogate from the powers of the municipality under the MGA , which in this case relates to municipal utilities. [ 8 ] The Respondents argue that Kozak is not dispositive, as it pre-dates the IDP. Relying on the “hierarchy of plans,” the Respondents argue that the Bylaw is inconsistent with the IDP, and therefore unlawful. The Respondents argue that the deadlines under the Bylaw are arbitrary and capricious, since the regional system is not yet under construction, and should be unenforceable.

Issues [ 9 ] The following issues arise: (

a) What is the test for granting a mandatory injunction under s 554 of the MGA ? (

b) Can the Respondents challenge the validity of the Bylaw in this Action? (

c) Do the IDP and the Bylaw conflict? (

d) Is the Bylaw arbitrary? (

e) Should I grant the County’s application for an injunction? The Relevant Legislation [ 10 ]

Section 539 of the MGA provides: 539 No bylaw or resolution may be challenged on the ground that it is unreasonable. [ 11 ]

Section 554 of the MGA provides: 554(1) When (

a) a structure is being constructed in contravention of an enactment that a municipality is authorized to enforce or a bylaw, (

b) a contravention of this Act, another enactment that a municipality is authorized to enforce or a bylaw is of a continuing nature, or (

c) any person is carrying on business or is doing any act, matter or thing without having paid money required to be paid by a bylaw, in addition to any other remedy and penalty imposed by this or any other enactment or a bylaw, the municipality may apply to the Court of King’s Bench for an injunction or other order.

(2) The Court may grant or refuse the injunction or other order or may make any other order that in its opinion the justice of the case requires. [ 12 ] Other relevant MGA sections are attached at Appendix A. [ 13 ] The relevant sections of Bylaw 1364/22 provide: 4 SEWAGE WORKS 4.1 The County is hereby authorized to operate a communal sewage collection and disposal system for the purposes of supplying the parcels of land within the Sylvan Lake Communal Subdivisions' sewage disposal services. 4.2 No person except the County may operate a sewage disposal system in the Sylvan Lake Communal Subdivisions except as permitted by this Bylaw or as specifically authorized in writing by the County Manager. 4.2.1 This

section does not apply to The Slopes Subdivision Utility Operator who is authorized to provide water and wastewater services to properties located within the boundaries of The Slopes Subdivision as outlined in

Schedule "A" of this bylaw. 4.3 Provided that pipes forming part of the County wastewater system are located within a road, easement, public utility lot or other property controlled by the County, the County Manager may require the Owner of an adjacent property to provide or pay for a service connection from that adjacent property to the main line of the County wastewater system, and, if that adjacent property is connected to any other sewage disposal system, to disconnect from that sewage disposal system and connect to the County's sewage system. 4.4 All Owners of premises located within the Sylvan Lake Communal Subdivisions shall connect to the County wastewater system. 4.4.1 For the purposes of this bylaw the customer connection point for The Slopes Subdivision Utility shall be the manhole located at the Sylvan Lake Regional Water/Wastewater Commission's North Shore Lift Station located at Lot 6MR, Block 1, Plan 8420452. 4.4.2 Notwithstanding

section 7, all piping, valves, manholes, and appurtenances installed from the customer connection point identified in 4.4.1 to the Slopes Subdivision, including all pipes valves, manholes, and appurtenances contained within The Slopes Subdivision are the responsibility of the Slopes Subdivision Utility Operator to maintain and operate. 4.4.3 The County reserves the right, upon notice being given, to inspect any and all infrastructure owned by the Slopes Subdivision Utility Operator. 4.5 All Owners of premises located within the Sylvan Lake Communal Subdivisions from which sewage is generated as of the date of passage of this Bylaw shall connect to the County wastewater system on or before October 31, 2021.

4.5.1 This

section does not apply to the Slopes Subdivision Utility. 4.6 The County may give to an Owner of premises located within the Sylvan Lake Communal Subdivisions who fails to connect to the County Wastewater System by October 31, 2021, a notice requiring the Owner to connect to the County Wastewater System within the time period specified by the County, which period shall not be less than 30 days.

If an Owner fails to carry out the required steps and actions to the satisfaction of the County within the specified time period, the County may enter onto the lands in question and take the necessary actions, including construction of the service connection, at the owner's expense. 4.7 All Owners of premises located within the Sylvan Lake Communal Subdivisions will be required to pay a connection fee as per the terms and conditions set out in

Schedule F of this Bylaw. [ 14 ] The IDP provides (at p 18): The Sylvan Lake Intermunicipal Development Plan is a high-level planning document that guides future growth and development. It has been developed based on growth and development needs over the next 20 years including supporting infrastructure and services, as well as environmental sustainability of the watershed. The policies of the Sylvan Lake Intermunicipal Development Plan enable sustainable growth in the Plan Area over the same time horizon.

The Municipal Government Act identifies an Intermunicipal Development Plan as the highest order of municipal statutory plans (Figure 4). As such, all other municipal plans affecting lands within the Sylvan Lake Intermunicipal Development Plan shall be consistent with the policy direction contained herein. The Sylvan Lake Intermunicipal Development Plan has been created to support existing statutory plans (i.e., Municipal Development Plans, Area Structure Plans, and Area Redevelopment Plans) in the study area, and contains reference to these plans where they act as the appropriate level of policy.

Future Municipal Development Plans and related Area Structure/Redevelopment Plans will follow the Sylvan Lake Intermunicipal Development Plan policy and provide greater detail policies to implement the vision. [emphasis added] [ 15 ]

Section 8.2.11 and 8.2.14 of the IDP provides: 8.2.11 Any new or replacement septic systems on all non- agricultural lots that are less than 4050 square metres (1 acre) or where 60 or more lots serviced by private sewage systems are within a 600 metre radius must be connected to a functional regional wastewater system or be serviced by a private holding tank/communal wastewater system until the functional regional wastewater system is available. 8.2.14 When a functioning regional wastewater system is available, connection to the wastewater system shall be required, and/or conversion of all private sewage systems on lands connecting to wastewater system.

Analysis What is the test for granting a mandatory injunction under s 554 of the MGA? [ 16 ] Wittmann CJ (as he then was) in Calgary (City) v. Bullock (Occupy Calgary) , 2011 ABQB 764 , at para 28 , cited Maple Ridge District v. Thornhill Aggregates Ltd ., [1998] BCJ No 1485 (CA) the British Columbia Court of Appeal where the BC Court of Appeal held, at paras. 7 and 9: The source for the injunction in the case under appeal is statutory, and not equitable.

Factors that might be considered by a court in an application for an equitable injunction will be of limited, if any, application to the grant of a statutorily based injunction... Where an injunction is sought to enforce a public right, the courts will be reluctant to refuse it on discretionary grounds. To the extent that the appellants may suffer hardship from the imposition and enforcement of an injunction, this will not outweigh the public interest in having the law obeyed. [ 17 ] Wittmann CJ then went on to cite (at para 29) the Alberta Court of Appeal in Alberta (Attorney General) v.

Plantation Indoor Plants Ltd. (1982), 1982 ABCA 1 at para. 13 : ... the history of the matter must clearly demonstrate, as it does here, an open and continuous disregard of an imperative public statute and its usual sanctions which is unlikely to be thwarted without the intervention of the court. [ 18 ] Finally, Wittmann CJ added that the Court may deny statutory injunctive relief where there are exceptional circumstances that warrant so refusing, citing Vancouver (City) v. Maurice , 2002 BCSC 1421 ; aff’d: 2005 BCCA 37 , at para. 34 ; City of Vancouver v. O’Flynn-Magee, 2011 BCSC 1647 , at para. 30 .

As an example of what would constitute such an exceptional circumstance, he noted (at para 30): A violation of the Respondents’ s. 2 Charter rights that is not saved by application of s. 1 would constitute a special circumstance that would preclude granting the injunction. [ 19 ] The Alberta Court of Appeal in St. Paul (County) No. 19 v. Belland , 2006 ABCA 55 at para 21 , noted:

Section 554 should be granted the liberal and purposive

interpretation that the Supreme Court identified in the United Taxi Drivers case [ United Taxi Drivers Fellowship of Southern Alberta v. Calgary (City) , 2004 SCC 19 ]. It speaks of a “contravention” of an enactment, which does not require a conviction, or even a prosecution... A municipality might also have the “authority to enforce an enactment”, even if no actual steps had been taken to exercise that authority. (citation omitted).

[20] In Newell (County No. 4) v. Dola, 2003 ABCA 371, The Court of Appeal upheld the Chambers Judge’s decision to refuse togrant the injunction under s 554 because there was contradictory evidence and issues of credibility as to whether the Respondent wascontinuing to breach a bylaw by breaching a stop work order. At para 10, the Court noted: This

section requires the County to prove a continuing breach of a bylaw. Even then, injunctive relief is not automatic, as a judge hasdiscretion to grant it or to make other orders.

Can the Respondents challenge the validity of the Bylaw in this Action? [21] The Respondents argue that the Bylaw is unlawful because it conflicts with the IDP and because the deadline for connectionis unrelated to the availability of a functional regional wastewater system and therefore arbitrary. [22] Effectively, the Respondents are asking the Court to find that the Bylaw should be declared invalid, but they have not cross-applied for such a declaration.

In my view, that would have been the correct approach – to pursue judicial review of the enactment of theBylaw by cross-application. [23] However, I conclude that this is unnecessary since I find that even if the Bylaw must conform to the IDP, an issue I choosenot to decide here, the Bylaw can be read harmoniously with the IDP and there is no conflict between them. Do the IDP and the Bylaw conflict? [24] Veit J in Business Watch International Inc. v.

Alberta (Information and Privacy Commissioner), 2009 ABQB 10, at para67, noted that municipal bylaws are presumptively valid in the same way that statutes are presumptively valid, citing Newell (County) v.Standard Gravel and Resurfacing of Canada, (AB CA), [1954] AJ No 58, [1954] 2 DLR 848 (SC AD). At para 8 inNewell, the Appeal Court noted: I think it essential in interpreting the words of the by-law to keep in mind as the proper approach to the

interpretation of an enactment thepresumption that the governing body does not intend to exceed its jurisdiction; and if the words used are capable of a reasonableconstruction that would keep the enactment within the limits of jurisdiction, they are so construed. (Emphasis added). [25] The Court of Appeal in Re Heppner and Alberta Minister of the Environment (1977) 1977 ALTASCAD 206 , 80DLR (3d) 112 (ABCA) cited Newell, saying (at para 25): A court when considering the validity of subordinate legislation must proceed on the assumption that such legislation is within theauthority conferred by the Act and will not declare it invalid unless there is clear evidence to support such a finding. [26] Relying on these principles of construction, if it is possible to interpret the Bylaw in a manner that conforms to the IDP, that isthe preferable

interpretation. [27] IDP paragraph 8.2.11 provides that any new or replacement septic systems must either be connected to a functional regionalwastewater system OR be serviced by a private holding tank or a communal system until the functional regional wastewater system isavailable. Notwithstanding the fact that paragraph 8.2.11 refers to new or replacement septic systems and not to existing septic systemsas is the case before me, this is a permissive paragraph permitting either private holding tanks, as the Respondents have, or a communalsystem, as exists in other areas of the County.

The Bylaw now purports to require the Respondents to connect to the communal system.There is nothing in 8.2.11 that prohibits the municipality from requiring a connection to the communal system. [28] Paragraph 8.2.14 provides that once a functioning wastewater system is available, all private sewage systems must beconnected to the regional wastewater system.

The Respondents argue that this is the determinative provision, suggesting that this ties therequirement to stop using a private or communal system referenced in 8.2.11 to the time when a functional regional system exists. [29] However, again there is nothing in 8.2.14 that prohibits the municipality from setting an earlier deadline for connecting to thesystem. It can be read as simply requiring the connection to the system no later than when the functioning wastewater system becomesavailable.

In that sense, the Bylaw conforms to the IDP; by the time the functioning wastewater system begins to operate, theconnections will all be in place. Is the Bylaw arbitrary? [30] The Respondents assert that the deadline is arbitrary and has no rational foundation because there is no evidence that thefunctional regional system will be built any time soon. They note that the communal wastewater system in place now was an initial steptowards the regional sewer system.

They argue that the reasonableness of the deadline depends on when the regional sewer system willbe available. [31] “Arbitrary” has been defined in the caselaw. For example, in R v Harold (1989), (AB KB), 103 AR 16(QB) Gallant J cited Black’s Law Dictionary (5th ed, 1979) at para 10: Arbitrary means, according to Black's Law Dictionary (5th ed., 1979) In an "arbitrary" manner, as fixed or done capriciously or at pleasure.

Without adequate determining principle; not founded in the natureof things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power;capriciously; tyrannical; despotic... (emphasis added). [32] I conclude that the deadline is not arbitrary. The Respondents concede that the communal wastewater system is an initial step

towards the eventual regional system. Requiring connection for this initial step is not capricious or absent rationale or principle. [33] Moreover, the Respondents’ assertion that the deadline is arbitrary is effectively an argument that the Bylaw is unreasonable. Their brief of argument uses “arbitrary” and “unreasonable” interchangeably, and it asserts reasonableness as a requirement for theBylaw. [34] Numerous cases have also used arbitrary and unreasonable synonymously, or as similar in nature: see for example: R. v.Gilroy, 1987 ABCA 185; Styles v. Alberta Investment Management Corp, 2017 ABCA 1 at para 35; Engel v. Salyn, (SCC), [1993] 1 SCR 306, at 315. [35]

Section 539 of the MGA expressly prohibits challenges to a bylaw on the basis that it is unreasonable. This

section has beeninterpreted to prohibit review on the ground that the bylaw is unreasonable; it does not set the standard of review: ARW DevelopmentCorporation v. Beaumont (Town), 2011 ABCA 382, at para 30; Bergman v Innisfree (Village), 2018 ABQB 326 (at para 24, 108-114).The Court of Appeal in Koebisch v Rocky View (County), 2021 ABCA 265, noted at para 23:

Section 539 of the MGA applied to County Council’s decisions to enact the impugned bylaws. This

section is part of the statutorycontext, and wider margin of appreciation, that must be taken into account by a reviewing judge when there is a challenge to a bylaw.Section 539 prevents challenges to a bylaw on the ground of unreasonableness. It does not articulate the standard of review: Bergman vInnisfree (Village), 2020 ABQB 661, paras 108-114.

Whether a bylaw is wise is for a municipal council to decide, not the courts.(emphasis added) [36] At its core, the Respondents’ argument is that the Bylaw sets an unwise deadline for requiring connection to the communalsystem; whether the deadline is reasonable or wise is not for this Court to decide. [37] I conclude that the deadline is not arbitrary, but even if it is arbitrary, the prohibition in s 539 limits the grounds upon which abylaw may be challenged and excludes unreasonableness.

The allegations of arbitrariness here are synonymous with unreasonablenessand is not a ground for challenging the lawfulness of the Bylaw. Should I grant the County’s application for an injunction? [38] The Respondents do not deny that they have not abided by the Bylaw and have failed to connect to the communal sewersystem. This constitutes “an open and continuous disregard of an imperative public statute”. The Respondents have not pointed to anyexceptional circumstances that would warrant refusing to grant the injunction.

I also conclude there are no issues of contradictoryevidence or credibility. [39] I therefore grant the County’s application and grant the following relief. a. A declaration that the Respondents, Trevor and Jill Radomsky, are in breach of the requirements of the Sylvan Lake CommunalSewage Bylaw (Bylaw No. 1364/22) by failing to connect the Radomsky Lands to the communal sanitary sewage collection systems; b.

A declaration that the Respondent, Leslie Burke, is in breach of the requirements of the Sylvan Lake Communal Sewage Bylaw(Bylaw No. 1364/22) by failing to connect the Burke Lands to the communal sanitary sewage collection systems; c. An Order directing the Respondents to connect the Respondent Lands to the sanitary sewage collection system, in accordancewith the Sylvan Lake Communal Sewage Bylaw (Bylaw No. 1364/22); d. An Order authorizing the County or its agents or representatives, to enter upon the Lands to inspect for compliance with theapplicable requirements and any Order made by this Honourable Court; e.

An Order directing that in the event the Respondent(

s) do not comply with any Order made by this Honourable Court, the Countyor its agents, representatives, employees or a civil enforcement agency, may be at liberty to enter upon the Land(

s) and carry out any andall of the relief ordered by the Court, by any means that the Applicant may deem fit including the relief referred to in paragraph (c)above. All costs incurred by the County shall be payable by the respective Respondent(

s) and charged to the Respondent(s)’ respectiveLands; f. An Order restraining the Respondent(

s) from interfering with the County, its agents, representatives or civil enforcement agency,in entering the lands for the purpose of enforcing any Order made by this Honourable Court; and g. An Order authorizing the RCMP to provide assistance to the County in carrying out the provisions of the Order, if so required. [40] I decline to award the solicitor-own client costs, and award party-party costs. If the parties are unable to agree on costs, theymay apply to me within 60 days of this decision. Heard on the 8th day of February, 2023. Dated at the City of Red Deer, Alberta this 13th day of July, 2023.

G.D.B. Kendell J.C.K.B.A. Appearances: Daina Young Reynolds Mirth Richards & Farmer LLP for the Applicant Gavin Fitch McLennan Ross LLP for the Respondents Appendix A 5 A municipality (

a) has the powers given to it by this and other enactments, (

b) has the duties that are imposed on it by this and other enactments and those that the municipality imposes on itself as a matter of policy, and (

c) has the functions that are described in this and other enactments. Natural person powers 6 A municipality has natural person powers, except to the extent that they are limited by this or any other enactment. General jurisdiction to pass bylaws 7 A council may pass bylaws for municipal purposes respecting the following matters:

a) the safety, health and welfare of people and the protection of people and property; (

b) people, activities and things in, on or near a public place that is open to the public; (

c) nuisances, including unsightly property; . . . Guides to interpreting power to pass bylaws 9 The power to pass bylaws under this Division is stated in general terms to (

a) give broad authority to councils and to respect their right to govern municipalities in whatever way the councils consider appropriate, within the jurisdiction given to them under this or any other enactment, and (

b) enhance the ability of councils to respond to present and future issues in their municipalities. Relationship to natural person powers 11(1) Despite section 180(2), a municipality may do something under its natural person powers even if the thing could be done under a bylaw passed under this Division.