Westcan Recyclers Ltd v Calgary (City), 2023 ABKB 442

Court of King’s Bench of Alberta Citation: Westcan Recyclers Ltd v Calgary (City), 2023 ABKB 442 Date: 20230727 Docket: 2101 09833, 2201 10049 Registry: Calgary Between: Docket 2101 09833 Westcan Recyclers Ltd and 664078 Alberta Ltd Plaintiffs/Respondents - and - The City of Calgary Defendant/Applicant And Between: Docket 2201 10049 Westcan Recyclers Ltd and 664078 Alberta Ltd Cross-Applicants - and - The City of Calgary Cross-Respondent

_______________________________________________________ Reasons for Decision of the Honourable Justice EJ Sidnell _______________________________________________________ [ 1 ] Due to its urgency, this decision was delivered orally on July 20, 2023. Only minor editorial edits for readability have been made, together with the inclusion of citations and quotations. There have been no changes made to the substance of my oral decision. Introduction [ 2 ] This decision arises from two applications heard at the same time: (

a) an application, brought by The City of Calgary (the City), to revoke a consent injunction order granted on April 14, 2022 by Yamauchi J (the Injunction Order), together with related relief (the Injunction Revocation Application); and (

b) a cross-application, brought by Westcan Recyclers Ltd and 664078 Alberta Ltd (collectively, Westcan), for judicial review of Bylaw 5C2022 (the Closure Bylaw), passed by the City on July 5, 2022, together with related relief (the Closure Bylaw Judicial Review). [ 3 ] The City is the applicant on the Injunction Revocation Application, but Westcan has the onus to show that the Injunction Order should remain in place.

This onus shift arises from the April 14, 2022 direction of Yamauchi J and was accepted by both parties. [ 4 ] The City submits that if Westcan cannot satisfy this Court that the Injunction Order should remain in place, it must be revoked and the City will have the ability to continue with the upgrading and widening of 68 th Street SE, Calgary (the 68 th Street Expansion), including the closure of Westcan’s two 68 th Street SE accesses (Westcan’s Accesses). [ 5 ] In 2012, the 68 th Street Expansion was imposed on a private developer as a subdivision condition in relation to the subdivision of the “Point Trotter Subdivision”.

When the private developer encountered financial difficulties, the City, through its own internal group, Real Estate and Development Services (RE&DS), bought the private developer’s interest in the Point Trotter Subdivision.

As a result of that purchase, RE&DS took on the 68 th Street Expansion obligation, not as a municipality undertaking good governance but as a successor to the private developer. [ 6 ] The issue raised in the Injunction Revocation Application and the Closure Bylaw Judicial Review is not about the ability of the City to exercise its statutory power to provide good government, to foster the economic development of the municipality, or to provide services and facilities that are desirable for the municipality. The City has those powers under s 3 of the Municipal Government Act , RSA 2000, c M-26 ( MGA ).

The issue raised is not about the ability of the City to pass bylaws to achieve these goals.

The City has that ability under s 28 of the Highways Development and Protection Act , SA 2004, c H-8.5 ( HDPA ) and s 8.1 of the MGA , added to the MGA by the City of Calgary Charter, 2018 Regulation , AR 40/2018 . [ 7 ] The issue raised in the Injunction Revocation Application and the Closure Bylaw Judicial Review is whether the City can use its good government powers to undertake the 68 th Street Expansion given that the obligation arises because the City exercised its natural person powers under s 6 of the MGA to step into the shoes of the private developer. [ 8 ] If the City had undertaken the 68 th Street Expansion as part of its governance of the City, in my view, there would be no legal dispute.

However, this is not the context in which this case arises. The 68 th Street Expansion [ 9 ] The 68 th Street Expansion affects the lands municipally known as 8919 68 th Street SE (the Westcan Site), which is owned by the respondent and cross-applicant, 664078 Alberta Ltd. The Westcan Site is also the location of a scrap metal recycling business operated by the respondent and cross-applicant, Westcan Recyclers Ltd. [ 10 ] The 68 th Street Expansion will necessitate the closure of Westcan’s Accesses, which permit direct ingress onto, and egress from, the Westcan Site.

The closure of Westcan’s Accesses requires replacement accesses to be constructed, which are proposed to be from 86 th Avenue SE on the northern boundary of the Westcan Site and from 90 th Avenue SE which is south of the Westcan Site (collectively, the Alternative Accesses).

[ 11 ] The photo below paragraph [13] , with coloured mark-ups, is from a report prepared by the independent engineers engaged by the parties: Dr.

Morrall, P Eng, and Mike Furuya, P Eng, of Canada Highways Institute Ltd (collectively, the Independent Engineer). [ 12 ] Westcan’s Accesses, located on its eastern property line, are physically connected to 68 th Street SE with mud and gravel driveways, or approaches, between the Westcan gates and 68 th Street SE (collectively, the Access Approaches) which can be seen in the photos attached to the Independent Engineer’s reports. [ 13 ] The Independent Engineer superimposed purple highlighting on the photo below to show the “Forward Swept Path of Vehicle” for a heavy haul truck referred to as a WB-26.2, approaching from the Alternative Accesses.

The arrows and labels on the right have been added by the Court to assist in identifying the elements relevant to the Injunction Revocation Application and the Closure Bylaw Judicial Review. A map of a city Description automatically generated Point Trotter Subdivision [ 14 ] Westcan submits that the imposition of the Alternative Accesses arises from the development of the Point Trotter Subdivision, which Westcan submits is located approximately 500 m southeast of the Westcan Site. The lands for the Point Trotter Subdivision consisted of parcels owned by Walton International Group Inc (Walton) and the City.

When the subdivision was applied for, Walton acted as the developer. When subdivision approval was granted, one of the subdivision conditions was the construction of the 68 th Street Expansion. [ 15 ] Walton experienced financial difficulties and sought protection under the Companies’ Creditors Arrangement Act , RSC 1985, c C-36 . On July 28, 2017, Eidsvik J ordered, among other things, the sale of Walton’s interest in the Point Trotter Subdivision to the City. [ 16 ] The City engaged its internal business unit, RE&DS, to take on the role of developer for the Point Trotter Subdivision.

The City’s Statement of Defence states that RE&DS was formed in 2017 and that its function is not to generate profit, but to finance the sustainable development of industrial lands with the goal of maximizing long-term benefits for all Calgarians. During the hearing, the City submitted that RE&DS was acting as the developer in relation to the development of the Point Trotter Subdivision, the implementation of the 68 th Street Expansion and its negotiations with Westcan.

The City submitted that RE&DS never purported to have any other role in the Point Trotter Subdivision. [ 17 ] Westcan asserts that RE&DS, as a developer, has no ability to impose the relocation of Westcan’s Accesses and that the City, as a municipality and regulator, is using its powers to benefit RE&DS to Westcan’s detriment.

The City asserts that it is in the process of building critical roadway infrastructure in the public interest pursuant to its powers under the MGA . [ 18 ] Although the impact of the 68 th Street Expansion on the Westcan Site is in issue, the following background facts are not disputed, and I accept them: (

a) The application for the Point Trotter Subdivision was made by Morrison Hershfield Ltd in relation to lands owned by both Walton and the City. On February 16, 2012 , the City granted subdivision approval and imposed subdivision conditions, including the following: 18 The developer, at its expense ... will be required to:

. . .

f) Construct the full width of the four lane divided roadway in 68 Street SE (36 metre R.O.

W) from the irrigation canal northward toGlenmore Trail SE ... . . . 20 The developer, at its expense ... as a condition of approval of the initial Tentative Plan or Development Permit, whichever comesfirst: . . . b. Pay all administrative, land acquisition and legal costs, including possible expropriation of all additional right-of-ways [sic] requiredfor the necessary off-site infrastructure improvements. (

b) RE&DS is bound by the subdivision conditions imposed on the developer in relation to the Point Trotter Subdivision. (

c) While RE&DS has a variety of roles internally within the City, with regard to the Point Trotter Subdivision, RE&DS acts asa developer and as the successor to Walton. [19] The Manager of RE&DS, Mr. Rumer, when cross-examined on his affidavit, confirmed that the development approvalprocess would be the same for RE&DS as it would be for a private developer.

However, he also noted that, for the Point TrotterSubdivision, RE&DS made a decision that the City’s Transportation Infrastructure department would be the project manager for, and execute, the construction of the 68th Street Expansion and he was unsure whether the project manager would be subject to differentprocesses. The Closure Bylaw and the Temporary Access Permit [20] During the hearing the City acknowledged that it had a dual role in the 68th Street Expansion: (

a) through RE&DS as developer of the Point Trotter Subdivision; and (

b) as a municipality exercising its powers under the MGA and the HDPA. [21] While the Injunction Order was in place, the City passed the Closure Bylaw, which legally closed Westcan’s Accesses underthe authority granted to it by the HDPA. [22] Westcan’s Accesses remain open under a temporary road access permit (the Temporary Access Permit), which is revokableon 10 days notice, issued by the City contemporaneously with the passage of the Closure Bylaw.

On July 7, 2022, counsel for bothRE&DS and the City wrote to (then) counsel for Westcan regarding the Temporary Access Permit and said: The attached [Temporary Access Permit] will allow Westcan to continue using its existing 68th Street access points until further notice,notwithstanding that these accesses have now been legally closed via [the Closure Bylaw] ...

While the [Temporary Access Permit] entitles The City to revoke Westcan's temporary access on 10 days' notice, it is understood thatThe City will not restrict or impede Westcan's use of [Westcan’s Accesses] until the [Alternative Accesses] are operational and the[Injunction Order] has been lifted. Nevertheless, we expect that Westcan will immediately begin readying its site in preparation for the pending physical closure of[Westcan’s Accesses]. [23] As of the date of the hearing, the City had not revoked the Temporary Access Permit or physically closed Westcan’sAccesses.

Application #1 Injunction Revocation Application [24] The City submits that the Injunction Order should be revoked because Westcan cannot meet the legal test for an injunction. [25] The parties agree that the tripartite test set out by the Supreme Court of Canada in RJR MacDonald Inc v Canada (AttorneyGeneral), [1994] 1 SCR 311, (SCC) [RJR cited to SCR], should be applied to determine whether the Injunction Ordershould be revoked. Part one: Is there a serious issue to be tried?

Applicable Test [26] Relying on RJR, at page 337, Westcan submits that the threshold for establishing a serious question of law is low: What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfythis test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. ...

[27] The City, citing RJR and Modry v Alberta Health Services, 2015 ABCA 265, at para 37, submits that Westcan mustdemonstrate a strong and clear prima facie case. However, the Injunction Order creates a prohibitory injunction, which makes this casedistinguishable from the mandatory injunction test discussed in Modry. [28] In RJR, at page 340, the Supreme Court queried whether an “exception to the American Cyanamid ‘serious question to betried’ standard should be recognized in cases where the factual record is largely settled prior to the application being made”.

The Court then quoted from Dialadex Communications Inc v Crammond (1987), (ON SC), 34 DLR (4th) 392 (Ont HC), atpage 396, where Potts J said: ... Where the facts are not substantially in dispute, the plaintiffs must be able to establish a strong prima facie case and must show thatthey will suffer irreparable harm if the injunction is not granted. If there are facts in dispute, a lesser standard must be met.

In that case,the plaintiffs must show that their case is not a frivolous one and there is a substantial question to be tried, and that, on the balance ofconvenience, an injunction should be granted. [29] In Dialadex, the plaintiff employer sought an injunction to prevent the defendant, who had recently resigned as an employee,from setting up an allegedly competing business. Potts J found that the higher standard of a strong prima facie case applied because thedispute arose in relation to the

interpretation of the facts and not the facts themselves.

In the passage quoted above, Potts J also referredto the lesser, or lower, standard where the plaintiff must show that the case is not a frivolous one and there is a substantial question to betried. [30] After quoting from Dialadex, the Supreme Court noted, in RJR at page 340, that to “the extent that this exception exists at all,it should not be applied in Charter cases”. [31] In Hogan v Newfoundland (Attorney General), (NLCA), at paras 29 to 34, the Court explained whyexceptions to the lower standard, of a claim not being frivolous or vexatious, should only be applied in extraordinary circumstances.Marshall JA set out the rationale for applying the lower standard, and a

summary of the law, at paras 31 and 33: The reason for these admonitions against probing the merits of the case in interlocutory proceedings is the undesirability of a motionsjudge embarking on a trial of the matter on the basis of the limited scope provided in interlocutory applications for full presentation andairing of the issues involved. It goes directly to the fairness of judicial proceedings, the right to full and fair hearing and the desire topreclude the trial process being embarrassed by the need to reverse determinations in the light of full evidence and submissions.

Therationale for the rule was explained in the following terms by Lord Diplock at p. 510 of American Cyanamid: “It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on whichthe claims of either party may ultimately depend nor to decide questions of law which call for detailed argument and matureconsideration. Those matters are to be dealt with at trial.” . . . The direction conveyed through these authorities, therefore, is unequivocal.

Courts entertaining applications for injunctive relief pendingtrial as a general rule should shun passing on the relative merits of the action to be tried, beyond the initial determination that the claim isneither frivolous nor vexatious, excepting as a last resort when a consideration of all factors leaves the court in a quandary where thebalance of convenience lies. ...

Even in such last resort, the scope of examination of the merits is restricted to instances where there is "nocredible dispute" that the strength of one party's claim is shown to be manifestly weightier than the other and, in such an eventuality,circumspection must still be exercised as judges are cautioned against conducting the trial in such interlocutory proceedings. [32] While there were several expert reports and thousands of pages of evidence in the form of affidavits, cross-examinations onaffidavits and Dr.

Morrall’s testimony, on the Injunction Revocation Application, my role is not to make findings of fact but rather tomake an assessment of whether there is a serious issue to be tried. [33] This case is distinguishable from 590470 Alberta Ltd v City of Edmonton, 2004 ABQB 373, where, at para 24, Ross J foundthat the action arising from the closing of a median by the City of Edmonton was a matter of

interpretation and the characterization ofundisputed facts as to whether a road had been closed. Indeed, as discussed below, the questions of whether RE&DS has the ability toimpose the Alternative Accesses on Westcan and whether the Alternative Accesses are safe and adequate are in dispute. [34] Here, the facts are in dispute, and I am satisfied that the lower standard applies such that Westcan must establish that it’s claimis neither frivolous nor vexatious.

Common law rights of access and the HDPA [35] Westcan submits that there is a serious issue to be tried and points to its Amended Statement of Claim which describes itsaction in negligence against the City, acting through RE&DS in its role as developer of the Point Trotter Subdivision, and as amunicipality. [36] Relying on Toronto Transportation Commission v Swansea (Village), (SCC), [1935] SCR 455, [Swanseacited to SCR], at page 457, Westcan asserts a common law right to access adjacent public roadways based on the comments of Davis J: There is no difficulty upon the question of the right at common law of an owner of land adjoining a public highway.

He is entitled toaccess to such highway at any point at which his land actually touches such highway for any kind of traffic which is necessary for thereasonable enjoyment of his premises and will not, as he proposes to conduct it, cause a substantial nuisance ... This is a right of propertythat was well settled at the common law.

A private owner was always entitled to a full and uninterrupted access from his property thatadjoined a public highway to that public highway and a municipal authority, in the absence of express statutory right to the contrary, wasnot entitled to deprive the private owner of the full enjoyment of this right. ...

[ 37 ] The City, relying on the HDPA , submits that Westcan has no right of access from 68 th Street SE and says in its brief, footnotes omitted: The HDPA expressly abrogates any common law right of access to private property via a controlled street (which includes 68 Street). Westcan therefore cannot establish a strong prima facie case, whether based on negligence or any of the other causes of action pleaded, that The City should (or can) be prevented from completing the [68 th Street Expansion] on the basis that [Westcan’s Accesses] will be impacted. [ 38 ] Subsection 11(1) (

a) of the HDPA states: 11(1) A person (

a) is not, of right, entitled t o any direct access to or from a controlled highway or controlled street from or to any land adjacent to it ... [ 39 ] Westcan submits that s 11(1)(

a) of the HDPA should not be interpreted as taking away all rights. It asserts that the words “is not, of right, entitled to any direct access” acknowledge the common law entitlement to access. With this

interpretation, Westcan submits that the subsection does not eradicate a person’s common law right to access an adjacent highway. [ 40 ] Similar wording appeared in predecessor legislation: An Act respecting Public Highways , SA 1966, c 79 (the 1966 Public Highways Act ); The Public Highways Development Act , RSA 1970, c 295 ; the Public Highways Development Act , RSA 1980, c P-28 ; and the Public Highways Development Act , RSA 2000, c P-38 . Section 11(1)(

a) of the HDPA and the equivalent provisions in the predecessor legislation do not appear to have been interpreted in the manner proposed by Westcan. However, s 11(1)(

a) of the HDPA has been applied by the Municipal Government Board in Hanson v County of Wetaskiwin No 10 (Subdivision Authority) , 2019 ABMGB 7 , at para 28 , and the Land and Property Rights Tribunal in Olson v Lac Ste Anne County (Subdivision Authority) , 2022 ABLPRT 1411 , at para 30 , in a manner consistent with the City’s

interpretation that common law rights are abrogated. [ 41 ] In Lac La Biche Agricultural Society v Lac La Biche County (Subdivision Authority) , 2023 ABLPRT 60 , at para 28 , the Land and Property Rights Tribunal accepted the

interpretation, proposed by Alberta Transportation (AT), that all highway accesses are temporary by operation of s 11(1)(

a) of the HDPA : While AT is willing for the existing accesses to remain on a temporary basis, the Appellant submitted they should be designated as permanent in the interests of certainty, and because they raise minimal or no safety concerns. However, as noted by AT, all highway accesses are effectively temporary under the [ HDPA ], since s. 11(1) (

a) of the HDPA provides that “a person is not, of right, entitled to any direct access to or from a controlled highway or controlled street from or to any land adjacent to it.” ... [ 42 ] The appropriate approach to

interpretation is the “Modern Principle”: see Ruth Sullivan, The Construction of Statutes , 7 th ed (Toronto: LexisNexis, 2022),

chapter 2 . The Modern Principle to statutory

interpretation was adopted by the majority of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , at paras 117 and 118 , a decision particularly relevant to the Closure Bylaw Judicial Review: A court interpreting a statutory provision does so by applying the “modern principle” of statutory

interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re) ... and Bell ExpressVu Limited Partnership ... both quoting E. Driedger, Construction of Statutes ... Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the

interpretation of statutes and regulations ... This Court has adopted the “modern principle” as the proper approach to statutory

interpretation, because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: Sullivan, at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. ... [ 43 ]

Section 10 of the

Interpretation Act , RSA 2000, c I-8 , states: An enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and

interpretation that best ensures the attainment of its objects. [ 44 ] I find that the portion of s 11(1)(

a) of the HDPA stating that there is no entitlement “of right” refers to there being no claim as of right but that the right may be granted. This was described in the context of an application for certiorari by Wilson J in R v Currie , (1871), 31 UCQB 582, 1871 CarswellOnt 221, para 8 : ...

It is said that the granting of a certiorari is not of right, but is grantable in the exercise of a sound legal discretion ... [ 45 ] Under the common law, a private owner is entitled to uninterrupted access from the owner’s property to an adjacent public highway and, absent a contrary express statutory right, a municipal authority is not entitled to deprive the private owner of the full enjoyment of that right: Swansea , at page 457.

The HDPA , and its predecessor legislation, must be considered in this context to determine whether it creates a contrary express statutory right. [ 46 ] In Frederick A Laux “The Zoning Game – Alberta Style

Part II: Development Control” (1972) 10:1 Alta L Rev 1, Professor Laux traced the history of the Alberta Planning Act (now part of the MGA ) and, at footnote 35, commented on how the 1950 version of that legislation was based on surveys of land use, population, transportation and other considerations, as part of an increasingly sophisticated view of municipal development.

[ 47 ] In the context of ever-increasing complexities of transportation management, it is not surprising that s 24(1)(

a) of the 1966 Public Highways Act curtailed the common law right of access for the benefit of transportation planning: A person (

a) is not, of right, entitled to any direct access to or from a controlled highway or controlled street from or to any land adjacent thereto ... [ 48 ] While not part of the wording of s 24(1)(

a) of the 1966 Public Highways Act , the notation beside that

section states: “Abrogation of common law rights”. [ 49 ] Under s 33 of the HDPA , an urban municipality, such as the City, must establish a transportation system and designate it by bylaw. That bylaw must list the streets that are to be designated “controlled streets”. There was no issue raised in these applications about the designation of 68 th Street SE as a “controlled street” under the HDPA . The purpose of the HDPA is clear in providing management and control over the use of “controlled highways” and “controlled streets”. [ 50 ] In my view, the wording of s 11(1)(

a) of the HDPA clearly and unambiguously abrogates any common law right of a landowner to access an adjacent controlled highway or controlled street. Access to an adjacent controlled highway or controlled street is a matter of discretion that is exercised by the party with authority. The City of Calgary council (Council) has the ability to pass a bylaw to regulate the physical means of access to controlled streets under s 26(

c) of the HDPA and to remove a direct physical means of access between a controlled street and the land adjacent under s 28(3) of the HDPA . The City’s dual role as developer and municipality [ 51 ] My conclusion on the

interpretation of s 11(1)(

a) of the HDPA means that Westcan does not have a common law right of access to 68 th Street SE. However, this finding does not conclude the analysis on whether there is a serious issue to be tried. In fact, it highlights the issue that pervades all aspects of both of the applications. [ 52 ] The City acknowledges that RE&DS is acting as a developer and successor of Walton, but the City also claims a public interest in the orderly development of the municipality and asserts its rights as a statutory body to rely on the HDPA , together with its other powers.

At the hearing on August 30, 2022, the City submitted that it develops its own lands all the time and pays for the associated development costs. The City asserts that the roads it builds in connection with its developments become public roads and are approved in the same manner.

In the case of the 68 th Street Expansion, the Transportation Infrastructure department within the City is undertaking the construction and RE&DS is funding that work. [ 53 ] Westcan asserts that the City cannot use its regulatory authority to benefit its affiliated developer, RE&DS, to the detriment of the interests of Westcan. [ 54 ] The City acknowledges that, in its role as developer, RE&DS has no power to build roads or accesses without the approval of the City as regulator.

Apart from the Point Trotter Subdivision and the 68 th Street Expansion, the City acknowledges that RE&DS has other internal administrative roles within the City, such as looking after some City lands and facilities. The City submits that the discretionary decision-making functions in this case “were all left up to other parts of the City”. [ 55 ] The City submits that when it became apparent to RE&DS that Westcan’s Accesses needed to be closed to accommodate the 68 th Street Expansion, RE&DS was required to request Council to close them under the HDPA .

Conversely, Westcan says that had RE&DS designed the 68 th Street Expansion in the centre of the road right-of-way, which is typical, then Westcan’s Accesses could remain open. This is an issue to be determined at trial. [ 56 ] The City asserts that it has the statutory framework under the HDPA to close accesses and that closure is normally undertaken with the cooperation of the landowner. In this case, the City said that Westcan was not willing to cooperate on the closure of Westcan’s Accesses and the Closure Bylaw was necessary.

However, when asked to identify how Westcan had been uncooperative, RE&DS acknowledged that the characterization of Westcan being uncooperative was used because RE&DS was not able to reach a negotiated resolution with Westcan. The City submitted that since Westcan was not willing to cooperate, then it could rely on its power under s 28 of the HDPA to close Westcan’s Accesses. [ 57 ] Clearly, s 28 of the HDPA permits the City, as a municipality, to close Westcan’s Accesses, which it did when it passed the Closure Bylaw.

However, the obligation to complete the 68 th Street Expansion and to pay for all “land acquisition and legal costs, including possible expropriation of all additional right-of-ways [ sic ] required for the necessary off-site infrastructure improvements” was an obligation of the developer, first Walton and then RE&DS. [ 58 ] In Prairie Communities Development Corp v Okotoks (Town) , 2011 ABCA 315 , the Town attempted to use its natural person powers to require developers to make contributions for off-site levies which it did not have the ability to collect under the MGA : see para 50.

The Court of Appeal identified the issue as being whether the levy contribution agreement adopted by the Town Council “was intended to facilitate voluntary contributions towards off-site expenditures, or to coerce developers to make payment of unauthorized levies as a condition of the development process”.

While the facts are different, this case and Prairie Communities share a common theme of a municipality taking on dual roles: one as a regulator with statutory powers and one as a private entity under its natural person powers, in this case, as a developer. [ 59 ] The City submits that it was first Walton’s, and then RE&DS’, obligation to undertake the 68 th Street Expansion. I note that the City can impose subdivision conditions under s 655 of the MGA .

The City submits that the 68 th Street Expansion was being undertaken at the behest of the City for the municipal purpose of expanding a public roadway to create a safer transportation system. The

City says that the Court should consider the City’s “big picture” vision that the 68 th Street Expansion is required for the benefit of, and to service, the citizens of the City. In that manner, the City asserts that the 68 th Street Expansion is a public infrastructure project to benefit the public at large. [ 60 ] However, it is not the City in its capacity as a municipality undertaking the 68 th Street Expansion, it is RE&DS as developer.

The City required the developer to undertake the 68 th Street Expansion and to deal with the administrative, land acquisition and legal costs required for the necessary off-site infrastructure improvements, which the evidence shows would include impacts to the Westcan Site. [ 61 ] RE&DS, as developer, does not have the ability to close Westcan’s Accesses, to use Westcan’s lands to support the infrastructure necessary for the Alternative Accesses, or pass a bylaw.

RE&DS is the developer with the obligation to complete the 68 th Street Expansion and it is that project that requires the closure of Westcan’s Accesses. Notwithstanding these limitations, Mr.

Rumer, in his February 11, 2022 Affidavit, said that the City acknowledged that the 68 th Street Expansion will impact Westcan’s Accesses and attached as an exhibit an “Important Notice”, on City letterhead from Nik Danilov, PEng, PMP, a Senior Transportation Engineer with the City, which said, emphasis in the original: We also want to let you know of a potential full closure of 68 Avenue SE between the Canal and Glenmore Trail to allow for efficient and effective construction in the widening of the roadway.

In order for this to happen, The City proposes adding/building an additional accesses/driveways for you at the proposed locations shown on the map below. These additional access points will be used during construction and will be left for you to use in the future or as a replacement of the current access. ... [ 62 ] On July 15, 2021, RE&DS notified Westcan that Westcan’s Accesses would be temporarily closed for a weekend so that some of the 68 th Street Expansion work could be undertaken. Westcan and RE&DS then exchanged communications regarding safety issues.

On July 28, 2021, RE&DS advised Westcan that the northern most one of Westcan’s Accesses would be blocked-off for four to five weeks to accommodate the 68 th Street Expansion. [ 63 ] Conflicts between RE&DS and Westcan led to the first injunction being granted on August 11, 2021, a revision to that order being granted on August 25, 2021, with both being eventually superseded by the Injunction Order. [ 64 ] While the City’s duality was acknowledged, the line between the two roles was often blurred. Two lawyers represented both RE&DS and the City in relation to the Injunction Revocation Application.

A different lawyer represented the City on the Closure Bylaw Judicial Review. [ 65 ] In argument, the City submitted that the distinction between RE&DS, as developer, and the City, as a municipality, was “a bit artificial”. I disagree. I am of the view that the actions of the City through RE&DS, as a developer, must be considered distinctly and separately from the City, as a municipality, exercising its statutory powers. RE&DS, as a developer, is acting under the City’s natural person powers fulfilling a subdivision condition imposed by the City under s 655 of the MGA .

On the other hand, the City has an interest in public infrastructure for the greater good and derives the authority to pass bylaws from s 3 and 8.1 of the MGA . More particularly, the City can pass a bylaw to remove any direct physical means of access between a controlled street and land adjacent under s 28(3) of the HDPA . [ 66 ] While the 68 th Street Expansion may have a public benefit associated with it, it is being undertaken by RE&DS as a condition of subdivision and RE&DS acknowledges that its role is one of a developer.

The City, having imposed the 68 th Street Expansion on the developer of the Point Trotter Subdivision, cannot now characterize the 68 th Street Expansion as a public infrastructure project. I find that the 68 th Street Expansion is an undertaking which RE&DS has an obligation to complete as the developer of the Point Trotter Subdivision. Once complete, and turned-over to the City, the 68 th Street Expansion may be differently characterized.

Conclusion on serious issue to be tried [ 67 ] As between Westcan and RE&DS, as developer, Westcan has alleged, among other things, negligence and constructive taking and diminution of value of the Westcan Site. As between Westcan and the City, as a municipality, Westcan has alleged, among other things, intentional misfeasance. I find that Westcan has shown that there is a serious issue to be tried and its claim is not frivolous or vexatious. Part two: Will Westcan suffer irreparable harm?

Applicable test [ 68 ] To support its position that interference with a business does not constitute irreparable harm, the City relies on RJR , where, at page 341, the Court said: "Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

Examples of the former include instances where one party will be put out of business by the court's decision ...; where one party will suffer permanent market loss or irrevocable damage to its business reputation ... [ 69 ] In May v 1986855 Alberta Ltd , 2018 ABCA 94 , the Alberta Court of Appeal articulated the test to be applied for irreparable harm, at paras 12 to 14:

... The appellant submits that a plaintiff must prove only that the possible harm is “of such a nature that no fair and reasonable redress would be available after trial”: Lubicon Lake Band v Norcen Energy Resources Ltd. , 1985 ABCA 12 ... Noise Solutions v Commercial Insulation Contracting , 1998 ABCA 257 ... In his reasons, the chambers judge concluded that ... any harm that flowed from the construction of a multi-family dwelling would at most result in a diminution in the value of her property that was capable of being remedied by an award of money damages.

That conclusion does not consider whether a monetary award would amount to fair and reasonable compensation. This court has said that irreparable harm does not mean that the injury must be beyond the possibility of repair by money compensation. Rather, the test is whether “no fair and reasonable redress can be had in a court of law unless the injunction is granted and that its refusal would be a denial of justice”: Noise Solutions ...

The question is adequacy of damages as compensation, not complete impossibility: Maverick Equities Inc v The Owners: Condominium Plan no 942 2336 , 2008 ABCA 190 ... [ 70 ] I find that the applicable test to be applied to part two of the injunction test is whether no fair and reasonable redress is available unless the injunction is granted and that its refusal would be a denial of justice. Parties’ positions [ 71 ] The City submits that Westcan will suffer no irreparable harm if Westcan’s Accesses are closed and the 68 th Street Expansion is constructed, and relies on a number of different grounds: (

a) RE&DS has offered the Alternative Accesses so that Westcan will suffer no harm; (

b) section 29 of the HDPA provides for compensation where accesses are closed, though not in the case where alternative accesses are provided; and (

c) Westcan will not suffer harm that cannot be quantified in monetary terms and damages, if any, can be compensated financially. [ 72 ] On the other hand, Westcan submits the only evidence on the issue of irreparable harm is that of Mr.

Dimant, Westcan’s principal, who says that the Alternative Accesses will be so disruptive that Westcan’s business will be irreparably affected and forced to close. [ 73 ] I will address the irreparable harm test from the perspective of the City’s three submissions; however, this does not reverse the onus on the Injunction Revocation Application and the burden remains with Westcan to satisfy the Court that it will suffer irreparable harm.

Alternative Accesses [ 74 ] A municipality may, by bylaw, remove any direct physical means of access between a controlled street and land adjacent to the controlled street: HDPA , s 28(3). Compensation for the removal of an access to a controlled street is payable in accordance with s 29 of the HDPA . However, where an alternative means of access exists or is provided, no compensation is payable: HDPA , s 29(4). [ 75 ] RE&DS has no ability to rely on the HDPA because it is a developer, no different from the private developer, Walton, which initially had the subdivision condition imposed on it.

On the other hand, the City, as a municipality, has the authority under the HDPA to pass a bylaw to remove access to a controlled street. [ 76 ] I find that in relation to the Westcan Site and the 68 th Street Expansion, RE&DS, as a developer, has no ability to force Westcan to accept the Alternative Accesses or a closure of Westcan’s Accesses. However, as RE&DS asserts that the Alternative Accesses prevent Westcan from suffering irreparable harm, I will consider them from this perspective.

Furthermore, Westcan represented to Yamauchi J that it would consider alternative accesses and that was one of the reasons why the Independent Engineer was engaged. [ 77 ] The Independent Engineer assessed the Alternative Accesses but the City and Westcan do not agree on how the Independent Engineer reports should be interpreted. [ 78 ] This is an interlocutory application and not a trial where findings of fact are to be made, but I find that the evidentiary record, together with the submissions made in the Injunction Revocation Application, show that: (

a) The Independent Engineer identified that Westcan’s existing operations would be impacted and that there are three areas of “conflict” between the Alternative Accesses and current configuration of the workflow on the Westcan Site (the Three Conflict Areas). The Independent Engineer concluded in the August 29, 2022 report that: The analysis has shown that some existing Westcan operations may be maintained with the closure of [Westcan’s Accesses]. However, this is contingent on providing the necessary routing to support existing operations and requires relocating three conflict areas off-site. (

b) Westcan’s expert, Ron Kellam, PEng, opined that the tie-in to the proposed 86 th Avenue SE access would require some portion of the Westcan Site to be re-graded and used as a ramp to achieve the elevation difference between 86 th Avenue SE and the Westcan Site (the Access Ramp). Mr. Kellam further opined that the Access Ramp would need to be 18 m wide and have a length of between 21.74 m (for a 4% slope) and 36.43 m (for a 2% slope). RE&DS acknowledges that part of the Westcan Site would be required for the Access Ramp but submits that the length would be slightly less than estimated by Mr. Kellam because the finished road would be approximately 10 cm higher than the height he used in his

calculations. RE&DS concedes that re-grading on the Westcan Site would be necessary to tie-in to the Alternative Accesses. RE&DS acknowledges that the Access Ramp and related re-grading would cause “some disruption” to the Westcan Site. RE&DS acknowledges that the Access Ramp would affect Westcan’s operations. However, RE&DS tempers that acknowledgement by asserting that Mr. Dimant’s evidence relates to his personal view of the impact of the Alternative Accesses on Westcan and the Westcan Site and he provided no “corroborating support”. (

c) The drawings for the Alternative Accesses prepared by Morrison Hershfield (the MH Alternative Access Drawings), on behalf of RE&DS, as developer, and which were ultimately approved by Brian Merriman, a Design and Development Technologist with the City, on May 19, 2022, show the 90 th Avenue SE access marked as “FUTURE WESTCAN DRIVEWAY TIE-IN”. When questioned as part of the pre-hearing steps, Mr. Merriman gave the following evidence: Q All right.

Your assumption ... is that Morrison Hershfield has addressed your concerns satisfactorily by putting in the drawing that this will be dealt with in the future, ie: it says "future Westcan driveway tie in"; correct? A Yes. Q All right. A That they have clarified, shown accurately their tie in to the property line, not encroaching on the property, showing a potential future grade that would help resolve the access. Q ... What you're saying is that the future work would require grading on to Westcan site? A Which still requires consent -- Q Right. A -- from the property owner. . . . Q Okay.

So you just assumed somebody would go get that -- A Yes. Q -- ... and as far as you were aware, that was going to be required because the grading would be required on the Westcan site? A Correct. [ 79 ] I find that Mr. Merriman approved the MH Alternative Access Drawings on the basis that the 90 th Avenue SE access was a future development that was not currently before him for approval. Furthermore, I find that the City’s own approval process required Westcan to give its consent before the 90 th Avenue SE access could be constructed. [ 80 ] RE&DS submits that it has done everything possible to satisfy Westcan.

Without determining that, based on the record before the Court on the Injunction Revocation Application, I find that: (

a) the Independent Engineer has concluded that the Three Conflict Areas must be relocated off-site for the Alternative Accesses to function; (

b) re-grading on the Westcan Site would be necessary to tie-in to the 86 th Avenue SE alternative access and that the Access Ramp that would have to be completed and the related re-grading would require Westcan land and cause some disruption to the Westcan Site; and (

c) re-grading on the Westcan Site would be required to accommodate the 90 th Avenue SE alternative access and consent of Westcan would be required to obtain City approval. [ 81 ] The findings described in the paragraph above show that imposition of the Alternative Accesses will affect the Westcan Site in ways that have not been resolved. I find that it cannot be said that Westcan will suffer no harm from the imposition of the Alternative Accesses.

Section 29 of the HDPA provides for compensation [ 82 ] As already noted, RE&DS cannot rely on the HDPA as a developer. Since RE&DS is undertaking the 68 th Street Expansion, as a developer, whether s 29 of the HDPA provides for compensation for closure of Westcan’s Accesses is irrelevant to the consideration of irreparable harm as between RE&DS and Westcan. Irreparable harm [ 83 ] RE&DS submits that the onus is on Westcan to demonstrate the impact and not to just provide the personal opinion of Mr. Dimant as to the affect of the closure of Westcan’s Accesses. For example, RE&DS submits that Westcan could have obtained an

industrial site analysis or shown why the Westcan Site could not be reconfigured. [ 84 ] In United States Steel Corporation v Canada (Attorney General) , 2010 FCA 200 , at para 7 , Layden-Stevenson JA said: The jurisprudence of this Court holds that the party seeking the stay must adduce clear and non-speculative evidence that irreparable harm will follow if the motion for a stay is denied. It is not sufficient to demonstrate that irreparable harm is “likely” to be suffered. The alleged irreparable harm may not be simply based on assertions ... [ 85 ] Mr.

Dimant says that the imposition of the Alternative Accesses would result in: ... an unsustainable business model for Westcan and it will no longer be economical or safe or practically possible to physically operate at the Westcan Site.

I have reviewed various options with the City and external consultants and no one has been able to devise a plan to internally re-arrange the Westcan Site so as to allow safe, proper and commercially viable operations to continue should Westcan be compelled to use the [Alternative Accesses], given the safety and adequacy issues with same, the lack of any physical space available on the Site, the requisite operational requirements of a recycling facility, and the necessary downsizing of its operations.

Accordingly, this is not simply a matter of performing the Site Reconfigurations so as to make the [Alternative Accesses] operational. Rather, if the injunction is vacated and Westcan is compelled to use the [Alternative Accesses], its operations would permanently stop. [ 86 ] The closure of Westcan’s Accesses would be implemented by removing the Access Approaches. Since the Access Approaches are not on Westcan’s Site, their removal would not constitute trespass. However, I find that the implementation of the Alternative Accesses would materially interfere with the operations of Westcan’s Site. In Robert J.

Sharpe, Injunctions and Specific Performance (Toronto: Thomson Reuters Canada, 2020), online Release 2022-1, at §4:1, footnotes omitted, the author discusses injunctions for interference with property rights: Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured. This is especially so in the case of direct infringement in the nature of trespass. It is also the case where the plaintiff's cause of action lies in nuisance, although somewhat less categorically.

The discretion in this area has crystallized to the point that, in practical terms, the conventional primacy of common law damages over equitable relief is reversed. Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy. However, as always with equity, this must be understood to be a principle rather than a rule and, as will be seen, many factors are taken into account.

The reason for the primacy of injunctive relief is that an injunction more accurately reflects the substantive definition of property than does a damages award. It is the very essence of the concept of property that the owner should not be deprived without consent. An injunction brings to bear coercive powers to vindicate that right. Compensatory damages for a continuous and wrongful interference with a property interest offers only limited protection in that the plaintiff is, in effect, deprived of property without consent at an objectively determined price.

Special justification is required for damages rather than an injunction if the principle of autonomous control over property is to be preserved. A damages award rather than an injunction permits the defendant to carry on interfering with the plaintiff's property. ... [ 87 ] The harm Westcan would suffer if the Alternative Accesses are imposed includes the forced re-configuration of the Westcan Site, including, but not limited to, the relocation of the Three Conflict Areas to an undetermined off-site location, and the forced surrender of Westcan’s land to accommodate the Alternative Accesses.

I find that this possible harm is of such a nature that no fair and reasonable redress would be available after trial. [ 88 ] Mr. Dimant’s evidence of the effects of the forced physical changes to the Westcan Site is not necessary to make a finding of irreparable harm. The harm that goes beyond what could be redressed fairly and reasonably after trial is established by my findings at paragraph [80]. Mr. Dimant’s evidence is confirmation of this conclusion.

Part three: The balance of convenience [ 89 ] The balance of convenience or inconvenience must be considered, including which of the parties will suffer greater harm if the injunction is not granted: RJR , at page 334. In Lubicon Lake Band , 1985 ABCA 12 , at para 34 , Kerans JA said: To be sure, when one gets to the balance of convenience, one returns both to the harm done and to the cause of action.

The harm done to the plaintiff must be weighed against the harm done to the defendant just as the likelihood of victory by the plaintiff must also be weighed against the harm done to the defendant if he succeeds particularly in a case, as here, where no indemnification as to the defendant’s damages is available. ... [ 90 ] Both the City and Westcan submit that the balance of convenience tips in their favour. City’s position on balance of convenience [ 91 ] The City refers to the harm it will suffer if the injunction is not revoked.

The City asserts that this Court should not make any inquiry into whether the City is governing well and should not prevent the City from exercising its legislative powers to complete necessary road upgrades and to close Westcan’s Accesses in furtherance of the public interest.

The City further submits that leaving the Injunction Order in place would call into question the City’s decisions and actions and its authority over road work. [ 92 ] The City submits that it is responsible for providing safe and adequate transportation infrastructure for the public using 68 th Street SE and that the current narrowing of the roadway due to a bottleneck at the Westcan Site is untenable and will have a negative impact on businesses. [ 93 ] The City relies on Valastro v The Corporation of the City of London , 2013 ONSC 598 , for the proposition that there are unique considerations to be taken into account when the balance of convenience involves necessary public infrastructure projects.

Westcan’s position on balance of convenience [ 94 ] Westcan asserts that the City is not only acting in its capacity as a municipality but also as a developer as it has stepped into the shoes of Walton and assumed its obligations to undertake the 68 th Street Expansion to accommodate further development. Based on RE&DS’ role and the effect the Alternative Accesses will have on its site, Westcan submits that the balance of convenience weighs in its favour.

Analysis [ 95 ] The City is correct that this Court’s role is not to make inquiries into whether the government is properly governing or to call into question decisions of Council properly undertaken. However, this premise is only applicable to the City acting as a municipality and does not apply where the City takes on the role of a developer with the capacity, rights, powers and privileges of a natural person: MGA , s 1(1)(

t) and s 6. [ 96 ] If Walton was still the party interacting with Westcan, there would be no confusion as to the roles. Walton was the proponent of the Point Trotter Subdivision and applied for subdivision. The City, as a municipality with statutory authority, imposed subdivision conditions on Walton as a private developer. Walton accepted a subdivision condition to complete the 68 th Street Expansion. To undertake that work, some resolution would need to be reached with Westcan, and that was Walton’s responsibility and cost.

Once Walton completed the 68 th Street Expansion, it would be turned-over to the City and become part of the public infrastructure over which the City could exercise municipal control. Just because Walton suffered from financial difficulties and its interest was sold, does not alter the character of the subdivision conditions or the developer, now RE&DS, who has the burden of fulfilling them. [ 97 ] In Injunctions and Specific Performance , at §4:2.50, Robert J Sharpe discusses injunctive relief in the context of addressing a nuisance: ...

A property owner who merely stands by his or her rights, and refuses to overlook an infringement unless mollified by a money payment, is plainly not exerting any illegal threat. Indeed, in other contexts, the courts have explicitly recognized the likelihood of post- judgment bargaining and seen injunctive relief as an appropriate remedy to guarantee that the plaintiff is able to bargain from a position of strength. In such cases, injunctions vindicate the plaintiff's right to exploit the value of a veto over the use of property and to prevent the defendant from circumventing the bargaining process.

However, the strength of the plaintiff's veto is considerably weakened if the defendant is permitted to invoke the public interest in defense to the injunction claim. [ 98 ] Westcan has not pled nuisance in its Amended Statement of Claim. However, it is important to consider RE&DS’ evidence in context of its assertion that the 68 th Street Expansion is critical infrastructure for the City. [ 99 ] In his Affidavit sworn February 11, 2022, Mr.

Rumer commented on other industrial developments in the vicinity of the Westcan Site, the proposed process to be followed and the safety of the current 68 th Street SE configuration adjacent to the Westcan Site: As Westcan itself points out, Project Maverick and Project Violin are large scale industrial developments that will comprise collectively of 3,252 automobile parking stalls and 762 trailer stalls. It is imperative that the full four lanes of 68 th Street be completed, operational and open to traffic prior to the completion of the Development Projects in the summer of 2022.

On the basis that construction of the Roadway Improvements will resume May 1, 2022, The City's immediate plans going forward include: (

a) The City will submit the Updated Proposed Design/Final Design to the Approving Authority for review and final sign-off. (

b) RE&DS will ask Council to pass a bylaw permanently closing [Westcan's Accesses] (the [Closure Bylaw]), thereby eliminating all potential Safety Risks identified by Westcan's consultants. Westcan will receive prior notice of the dates the Closure Bylaw will proceed to Committee and Council, along with an explanation of the purpose of the bylaw. (Although this type of bylaw does not require a public hearing, Westcan, as a particularly interested party, will have an opportunity to make submissions to Council addressing any concerns it may have). (

c) The City is committed to doing everything in its power to provide Westcan with a safe, operationally adequate, and formally approved access via 90 th Avenue at the south boundary of the Westcan Site. This work is anticipated to be completed by June 1, 2022 assuming commencement of construction by May 1, 2022. This will give The City approximately one month to complete the Roadway Improvements so that all four lanes are operational by July 1, 2022 to coincide with the anticipated completion of the Development Projects. . . .

The current condition of 68 th Street is unsafe and untenable, given that it suddenly narrows from four lanes to just two lanes immediately adjacent to the Westcan Site before widening back to four lanes south of the Westcan Site ... This is not just a civil dispute between The City and Westcan; the current condition of the Roadway poses a danger to the driving public. This should be remedied as soon as possible and certainly during the 2022 construction season.

Any impacts on Westcan's operations resulting from the relocation of [Westcan’s Accesses], including costs to reconfigure the Westcan Site, can be addressed at a later date. The priority now is to complete construction of the Roadway Improvements and the new 90 th Avenue Access. [ 100 ] In his February 11, 2022 Affidavit, Mr. Rumer said that Westcan’s costs of reconfiguring the Westcan Site would be addressed at a later date. In his Affidavit sworn March 31, 2022, Mr. Rumer said: Westcan will be responsible for any changes to its perimeter fencing necessitated by the closure of [Westcan’s Accesses].

A claim for compensation can discussed at a later date.

. . . ... RE&DS agrees, in principle, that certain associated costs may be the responsibility of RE&DS, this will have to be assessed on an item-by-item basis.

For its part, Westcan will be responsible for any levies, fees or boundary costs that arise from any other changes to the Westcan Site or buildings thereon. [ 101 ] It is not clear on what basis RE&DS, as developer, takes the position that any of the cost of changes to Westcan’s Site required to facilitate the completion of RE&DS’ subdivision condition arising from the Point Trotter Subdivision should be borne by Westcan. [ 102 ] In his August 10, 2022 Affidavit, Mr.

Rumer again addresses safety issues: The current condition of 68 th Street as a result of the interim injunction is unsafe and untenable given that it suddenly narrows from four lanes to just two lanes immediately adjacent to the Westcan Site before widening back to four lanes south of the Westcan Site. This should be remedied as soon as possible and certainly during the 2022 construction season.

If the interim injunction is not lifted on or shortly after August 30, 2022, the result would be a loss of the 2022 construction season, meaning that 68 th street will remain in its current condition throughout the upcoming winter. The buildout of the developments to the south of the Westcan Site along 68 th is ongoing.

When those developments are completed, it is anticipated that traffic along 68 th Street will increase substantially as a result. [ 103 ] Whether traffic along 68 th Street SE will increase substantially as developments to the south of the Westcan Site are completed is irrelevant to the balance of convenience as it is an issue peripheral to the dispute between Westcan as a landowner and RE&DS as a developer completing a subdivision condition. [ 104 ] I have no expert evidence from RE&DS or the City with regard to the safety of 68th Street SE. Mr.

Rumer has an MBA in finance, no education in engineering or traffic safety, road design or risk assessment of motor vehicle collisions. There is no evidence that, between August 10, 2022 and the hearing in May 2023, that there were any particular safety issues or near misses on 68 th Street SE adjacent to the Westcan Site. [ 105 ] The City has laudable and important obligations as a municipality, many of which it undertakes for the greater good and safety of the City and the people who live and visit here. However, this dispute is between Westcan and the developer.

The fact that the City has taken on, through RE&DS, a role as a developer, does not change the dispute or the parties to it. I find that RE&DS, where it steps into the shoes of a private developer, cannot invoke the public interest in the balance of convenience part of the test. [ 106 ] Furthermore, even if I were to accept that RE&DS can rely on the public interest, I find that RE&DS has not provided any evidence of what the public interest is, or that it is of such a nature that it would tilt the balance of convenience in RE&DS’ favour.

The “safe and adequate” representation [ 107 ] On April 14, 2022, at the hearing before Yamauchi J resulting in the Injunction Order, counsel for RE&DS and the City made the following representation to the Court, which was relied on by Westcan in the Injunction Revocation Application: The City has always represented that ... the City would never close ... Westcan’s [Accesses] until such time as [Westcan] has been provided with safe and adequate alternative accesses. That’s ... always been the City’s position and on the record that’s the City’s position today. ... . . . ...

So the City takes that very seriously and we have, again, no intention whatsoever to interfere with [Westcan’s] operations out there. At some point ... [Westcan’s Accesses], Sir, are going to be closed, you probably saw that in our affidavits, but not until we have provided Westcan with safe and adequate alternative accesses away from 68th Street and we're working on that now.

And that's ... what the independent engineer is going to help us accomplish. [ 108 ] The Injunction Order did not expressly incorporate the “safe and adequate” access representation but included the following permission and prohibition relating to the 68 th Street Extension work: The City shall be permitted to resume road upgrading and construction work on the northbound (east) lanes of 68 Street SE, however, the City shall not, pending further Order of this Court, perform any road upgrading or construction work adjacent to Westcan’s [Accesses] (the "68 Street Accesses") and/or in any manner that would impede or negatively impact the 68 Street Accesses or Westcan’s operations.

The median barriers currently in front of the 68 Street Accesses preventing through traffic shall remain in place indefinitely. [ 109 ] Pursuant to the Injunction Order, the parties appointed and jointly engaged the Independent Engineer. During the April 14, 2022 hearing, Yamauchi J directed that the Independent Engineer was to provide “a full-on expert opinion on the whole ball of wax” and encouraged counsel to draft wording to accommodate that concept in the resulting order.

The Injunction Order states, in part: [The Independent Engineer is] to review and provide comments on the revised design being proposed by the City for accesses to and from Westcan’s property ... [ 110 ] The Injunction Order states that the Independent Engineer will be provided with a number of documents. The retainer agreement entered into between the parties and the Independent Engineer, dated April 26, 2022, describes the Independent Engineer’s scope of work and further specifies background documentation to be supplied to the Independent Engineer.

[ 111 ] In addition, Dr. Morrall sent an email regarding his requests for further information, dated July 28, 2022, to (then) counsel for both parties. [ 112 ] The Independent Engineer issued two expert reports: (

a) Preliminary Report, dated August 20, 2022; and (

b) Review of Access Changes Report, dated August 29, 2022. [ 113 ] The initial return date for the Injunction Revocation Application was August 30, 2022. At that half-day hearing, counsel for RE&DS and the City submitted that it had provided safe and adequate Alternative Accesses: On top of that, you've got now ... Dr. Morrall who has reviewed the City's final approved design and tells us it works and doesn't say that it's unsafe. So my ... argument ... is that the City now has provided safe and adequate access to the Westcan site.

We've done exactly what we said we were going to do. [ 114 ] Westcan took the position that the City’s application was premature. Westcan asserted that the Independent Engineer had not been able to complete the Injunction Order mandate and that the Independent Engineer’s interim position was that the Alternative Accesses were not safe and adequate. Conversely, the City asserted that the additional information requested by the Independent Engineer, and the work which the Independent Engineer recommended should be undertaken, were not necessary.

Given the dispute regarding whether the Independent Engineer’s work was complete, I determined that it would be appropriate to have Dr. Morrall give viva voce evidence before ruling on Westcan’s objection and assertion that the Injunction Revocation Application was premature. [ 115 ] On October 3 and 4, 2022, Dr. Morrall gave viva voce evidence, with both Westcan and the City having the opportunity to ask him questions. By agreement, the Independent Engineer’s two reports, together with Dr.

Morrall’s testimony and his email dated July 28, 2022, are part of the evidence in these applications. [ 116 ] On October 4, 2022, I ruled that the City’s Injunction Revocation Application was not premature. There were several procedural steps to be taken in advance of this hearing on the applications themselves and, to accommodate those steps, this matter was heard over three days from May 24 to 26, 2023. [ 117 ] At the hearing on May 24 to 26, 2023, counsel for RE&DS and the City said: ... The City is my client ... and that's the party to the action. And I was using the term somewhat interchangeably, I suppose.

But certainly the City, the capital C City isn't trying to resile from the fact that these representations were made. The City isn't saying, Well, RE&DS made those representations, we're not bound by them. [ 118 ] When asked if the City’s “safe and adequate” alternative access representation was still extant, counsel for the City and RE&DS said: Not as such. The position of [RE&DS] ... is that those representations were made in good faith, and they were based on an assumption -- and perhaps a misplaced assumption -- that Westcan would cooperate with [RE&DS] in those efforts. . . .

Now, this representation that [Westcan’s Accesses] wouldn't be closed until Westcan had been provided with safe and adequate alternative accesses, as I mentioned earlier, but made in the spirit of assisting Westcan. It was made in the spirit of trying to move matters forward. It tried to resolve the dispute, of cooperating with Westcan to mitigate the impacts of the roadway improvements. And the representation assumed that Westcan would act in the same spirit of cooperation, and that any disagreements about safety and adequacy would be settled by the [Independent Engineer]. ... . . .

Again, the representations assume a degree of reasonableness and cooperation ... The intention of making those representations was not to fetter the City's legislative authority over [Westcan’s Accesses], or to permanently hamstring the City's decision-making powers. RE&DS couldn't do that in making these representations. The intention of representing or advising or offering to Westcan that safe and adequate accesses would be provided in lieu of the closure of [Westcan’s Accesses] was not to give Westcan the ultimate say in whether, in which accesses it preferred, or a veto in how the accesses were constructed.

There was a reasonableness factor to this here, and that's why Dr. Morrall and the findings of Dr. Morrall in terms of the [Alternative Accesses] is so key. I would also point out that these ... weren't flippant representations. These weren't mere platitudes. [RE&DS] has invested thousands of man hours, hundreds of thousands of dollars in designing, building, and in particular, the 90th Avenue access. ... [ 119 ] Here, the City makes a distinction between the ability of RE&DS to make a representation and its inability to fetter the City’s statutorily granted decision-making discretion. I agree.

RE&DS has a different role to play than the City, in its role as a municipal authority. RE&DS’ role is no different than the role Walton would have if it was still the developer. Walton would not be able to impinge on the City’s statutory authority or be able to fetter the City’s statutorily granted decision-making discretion. [ 120 ] In terms of the balance of convenience, the injunction is against RE&DS, which is a developer seeking to comply with its subdivision conditions and in doing so purports to impose the Alternative Accesses on Westcan to facilitate the 68 th Street Expansion.

RE&DS, as a developer, made the representation regarding safe and adequate accesses to the Court. As discussed in paragraph [79], I

have found that there are unresolved problems with the proposed Alternative Accesses that negatively impact the Westcan Site. I findthat RE&DS has not lived up to the representation that it made to the Court. This is not fatal but weighs against RE&DS in the balance ofconvenience analysis. Conclusion on balance of convenience [121] Considering all of the issues discussed above, I find that the balance of convenience is in Westcan’s favour to maintain theInjunction Order.

Injunction Revocation Application conclusion [122] I find that Westcan has demonstrated that there is a serious issue to be tried, that it will suffer irreparable harm that cannot befairly and reasonably compensated for after trial and that the balance of convenience weighs in its favour. Westcan has met its burden ofproof that the injunction is appropriate in the circumstances. [123] As a result, the City’s application to revoke the Injunction Order is dismissed.

Undertaking to pay damages [124] Typically, a plaintiff who applies for an interlocutory injunction provides an undertaking to pay damages in the event that at theconclusion of trial the defendant is successful. This undertaking to pay damages is often a condition of obtaining an injunction, unlessotherwise ordered.

Indeed, in some cases, if the plaintiff refuses to provide an undertaking to pay damages, this refusal is a contributingfactor for dismissing the injunction application: see Alberta v Lac La Biche (Town), 1993 ABCA 104; Questor Technology Inc v Stagg,2021 ABQB 644. [125] The Injunction Revocation Application arose as a result of an injunction initially agreed to by consent. RE&DS now revokes itsconsent. Neither party raised the issue of whether Westcan should be obligated to provide an undertaking to pay damages.

In 304373Alberta Inc v Ensteel Properties Ltd, 2002 ABQB 814, at para 34, Veit J, noted that “an undertaking in damages is usually required inapplications for interlocutory injunction in commercial matters”. Given that this Injunction Revocation Application did not come about inthe ordinary course, I grant RE&DS leave to bring an application to compel Westcan to provide an undertaking to pay damages. I am notseized with this matter and such application may be brought on proper notice on the Commercial List.

Application #2 Closure Bylaw Judicial Review [126] Westcan challenges the Closure Bylaw on the basis of a failure of procedural fairness and on a substantive basis because itasserts that no person reasonably informed of the facts would have passed the Closure Bylaw. [127] The City and Westcan agree that the standard of reasonableness applies to a substantive review of the Closure Bylaw and thatthe standard of correctness applies to issues of procedural fairness.

Duty of fairness applicable to the passage of the Closure Bylaw [128] In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, [Baker cited toCanLII] a mother with Canadian-born dependent children, who was ordered to be deported, sought a waiver of the requirement to make apermanent residence application from outside Canada. A senior immigration officer replied to her request by letter stating, withoutreasons, that there was insufficient humanitarian and compassionate reasons to grant a waiver.

The Supreme Court of Canada consideredwhether the principles of procedural fairness were violated and, L’Heureux-Dubé J, for the majority, found that a duty of proceduralfairness applies to decisions that affect the rights, privileges, or interests of an individual: Baker, at para 20. [129] The existence of a duty of fairness does not determine the requirements of that duty.

Procedural fairness is eminently variable,and its content is to be decided in the specific context of each case: Baker, at para 21. [130] Where participatory rights are at issue, administrative decisions are to be made using a fair and open procedure, appropriate tothe decision being made in its statutory, institutional, and social context.

There must be an opportunity for those affected by the decisionto put forward their views and evidence and have that considered by the decision-maker: Baker, at para 22. [131] There are five non-exhaustive factors relevant to determining what is required by the common law duty of procedural fairness:Baker, at paras 23 to 28. These were applied in Halifax (Regional Municipality) v Tarrant, 2019 NSCA 27, at para 30, in the context ofjudicial review of a municipal bylaw.

These five factors were also summarized in Vavilov, at para 77: (1) the nature of the decision being made, and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself.

[132] To determine the duty of fairness applicable to the Closure Bylaw, I will consider the five non-exclusive Baker factors. Factor #1: Nature of the decision and the process followed [133] I have already discussed the nature of the decision being made and its effect on Westcan.

With regard to procedure, in Baker, atpara 23, the Court quoted from Knight v Indian Head School Division No. 19, (SCC), and said: In Knight ... it was held that “the closeness of the administrative process to the judicial process should indicate how much of thosegoverning principles should be imported into the realm of administrative decision making”.

The more the process provided for, thefunction of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemblejudicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. [134] Passage of the Closure Bylaw was a two-part process which is discussed below.

Factor #2: Nature of the statutory scheme [135] At para 24 of Baker, the Supreme Court said: The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the contentof the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will berequired when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requestscannot be submitted ... [136] The Closure Bylaw is not subject to appeal but can be considered on judicial review.

Factor #3 Importance of the decision to Westcan [137] The Closure Bylaw Judicial Review was heard at the same time as the Injunction Revocation Application and I have alreadydiscussed, above, the importance of the Closure Bylaw, and its effect on, Westcan. The Closure Bylaw will require Westcan to use theAlternative Accesses once the Temporary Access Permit is no longer in place: see paragraph [85].

Factor #4 Legitimate expectations of Westcan [138] In Baker, at para 26, regarding the legitimate expectations factor, L’Heureux-Dubé J, explained: Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairnessrequires in given circumstances. ... [I]n Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does notcreate substantive rights ... [I]f a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to theindividual or individuals affected by the decision.

If the claimant has a legitimate expectation that a certain procedure will be followed,this procedure will be required by the duty of fairness ... Nevertheless, the doctrine of legitimate expectations cannot lead to substantiverights outside the procedural domain.

This doctrine ... is based on the principle that the “circumstances” affecting procedural fairnesstake into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to actin contravention of representations as to procedure, or to backtrack on substantive promises without according significant proceduralrights. [139] As discussed below, before both the Infrastructure and Planning Committee (IP Committee) and Council, RE&DS acted, andwas treated, as “administration” and not as a private developer.

Westcan says that it had a reasonable and legitimate expectation that theCity would not give a developer preferential treatment to the point that it would negatively affect Westcan. Factor #5: Choices of procedure made by the City The procedures in this case are highly developed and include the relevant provisions of the HDPA, the MGA and the City’s ProcedureBylaw 35M2017 (the Procedure Bylaw). Westcan has not shown any defect with the procedures. The issue in this case arises with theapplication of the procedures to the Closure Bylaw.

Applying the Baker factors to this case Was there a fair and open procedure, appropriate to the statutory context? [140] The Closure Bylaw states: WHEREAS the Council of The City of Calgary may pass a Bylaw pursuant to

section 28 of the Highways Development and ProtectionAct, S.A. 2004, c. H-8.5 for the purpose of removing any direct physical means of access between a controlled street and land adjacent tothe controlled street; AND WHEREAS the Council of The City of Calgary has considered the proposed closing and has agreed that it is in the public interestto pass this Bylaw; NOW, THEREFORE, THE COUNCIL OF THE CITY OF CALGARY ENACTS AS FOLLOWS: 1. The means of access for 8919 68 Street SE directly on to 68 Street SE, generally as shown on

Schedule “A” and eachlabelled as an "Existing Access Point” are hereby closed.

2. This Bylaw comes into force on the date it is passed. Procedure Bylaw [ 141 ] The IP Committee mandate is set out in the

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