Alberta (Administrator of Administrative Penalties) v Alberta (Land and Property Rights Tribunal), 2024 ABKB 043

Court of King’s Bench of Alberta Citation: Alberta (Administrator of Administrative Penalties) v Alberta (Land and Property Rights Tribunal), 2024 ABKB 043 Date: 20240123 Docket: 2203 14095 Registry: Edmonton Between: Administrator of Administrative Penalties, Safety Codes Act Applicants - and - The Land and Property Rights Tribunal for the Province of Alberta, Ron Smith and Cindy Schmidt Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice C.L.

Arcand-Kootenay _______________________________________________________ Introduction [ 1 ] The Administrator of Administrative Penalties (Administrator) seeks a judicial review of a decision of the Land and Property

Rights Tribunal (LPRT) [ 2 ] The central issue for determination in this judicial review is whether it was reasonable for the LPRT to reduce the penalty amount issued to Ronnie Smith and Cindy Schmidt (Respondents) by the Administrator. Standard of Review [ 3 ] The framework for judicial review has recently been restructured and is now set out by the Supreme Court of Canada (SCC) in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 [ Vavilov ].

When a Court reviews the merits of an administrative decision there is a presumption that the standard of review is reasonableness: Vavilov at paragraph 23 . This presumption may be rebutted where the legislature has indicated that a different standard should apply: Vavilov at para 33 . [ 4 ] The Land and Property Rights Tribunal Act (LPRTA)

section 19 states: 19 On an application for judicial review of or leave to appeal a decision or order of the Tribunal or on appeal of a decision or order of the Tribunal, the standard of review to be applied is reasonableness. [ 5 ] The SCC in Vavilov specifically provides guidance on the proper application of the reasonableness standard. The focus of the reasonableness review “must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”. Vavilov at para 83 .

The SCC further provides that a “reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”. Vavilov at para 85 . [ 6 ] My job as a reviewing court, as described in paragraph 99 of Vavilov , is to: …develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency, and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir , at paras 47 and 74; Catalyst , at para 13. [ 7 ] As set out in Vavilov , the starting point and focus for the within judicial review is the Decision itself. My role is to review the Decision and in the process of my review, refrain from deciding the issue myself.

I will look at the rationale and outcome of the LRPT’s Decision to determine whether the Decision was unreasonable, as was argued by the Administrator. [ 8 ] As the application for judicial review in this case was brought by the Administrator, the onus is on the Administrator, who is challenging the Decision, to demonstrate it is unreasonable: Vavilov at para 100 . Issues [ 9 ] The issues in this application are as follows: 1. What standard of review is applicable to the judicial review of the LPRT’s decision. 2. Was the LPRT’s decision reasonable, specifically: a.

Was it reasonable for the LPRT to reduce the penalty against Ronnie Smith and Carol Schmidt from $12,000 to $1,000. Analysis of Facts and Law A. ALBERTA RULES OF COURT: [ 10 ] Rule 3.15 through 3.19 of the Alberta Rules of Court, give jurisdiction for Originating Applications for Judicial Review. [ 11 ] The LPRT released its decision on July 26, 2022.

The applicant filed an Originating Notice on September 12, 2022; and then served the Notice on the Respondent. [ 12 ] The provisions of r 3.15 have been met. [ 13 ] The Certified Record of Proceedings was filed on October 31, 2022, and a Supplemental Certified Record of Proceedings was filed on February 11, 2023, pursuant to r 3.18 and r 3.19, and they both form part of the Court Record. [ 14 ] I find that all procedural requirements in the Rules of Court have been met. B. SUBSTANTIVE REVIEW OF THE BOARDS DECISION

1. What standard of review is applicable to the judicial review of the LPRT’s decision. 2. Was the LPRT’s decision reasonable, specifically: a. Was it reasonable for the LPRT to reduce the penalty against Ronnie Smith and Carol Schmidt from $12,000 to $1,000. Applying the standard of review: Reasonableness [ 15 ] The standard of review of the LPRT’s decision on the merits, in the matter before me is reasonableness.

Reasonableness refers to the acceptability and defensibility of the decision and the justifications offered by the LPRT on key points: It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issues themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem….Instead, the reviewing Court must consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable.

As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first.

A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion… Vavilov , at para 83 and 84 . [ 16 ] Reasonableness is an attitude of respect to the administrative decision maker, a recognition that the legislature has given it the job of deciding the merits, not the reviewing court. [ 17 ] In assessing reasonableness under Vavilov , I must examine the following: 1. The acceptability or defeasibility of the outcome.

Did the decision stay within the constraints to which the administrator was subject? 2. The reasoning of the tribunal.

Was it rational, logical, and sufficient? [ 18 ] The Governing Legislation is the Administrative Penalties Regulation , Alta Reg 207/2017 , s 6, which designates the LPRT as the body to hear appeals of administrative penalties under s 57.3 of the Safety Codes Act , R.S.A 2000, c S-1 : [ 19 ] Safety Codes Act, R.S.A. 2000, c S-1 Appeal of Administrative Penalty [ 20 ] 57.3(1) A person served with a notice of administrative penalty may appeal the imposition of or the amount of the administrative penalty, or both, by submitting a notice of appeal of administrative penalty in accordance with the regulations to the appeal body established or designated by the regulations.

(2) Subject to the regulations, the appeal body referred to in subsection (1) may make rules governing its own procedure and business.

(3) The Regulations Act does not apply to rules made under subsection (2).

(4) The appeal referred to in ss (1) shall be dealt with in accordance with the regulations and the rules made under ss (2).

(5) Any subsequent actions before a court following a notice of administrative penalty shall be dealt with in accordance with the regulations. Administrative Penalties Regulation , Alta Reg 207/2017 : Appeal Board [ 21 ] 6(1) For the purposes of s 57.3 of the Act , the Land and Property Rights Tribunal is designated, and shall be referred to in this Regulation as the “appeal board”. [ 22 ]

(2) An appeal under this

section is a new trial of the issues that resulted in the administrative penalty being appealed. [ 23 ]

(3) Except as provided in this Part, for the purposes of an appeal, (

a) All the powers, duties and functions of the appeal board, its chair, members, and panels as set out in the appeal board regulation apply;

(

b) Part 2 of the appeal board regulation, except s 7(2) and (4), 8, 9, 11, 12 and 30 to 32, applies, with such modifications as the circumstances require; (

c) Sections 20, 20.1, 20.2 and 21.1 of the New Home Buyer Protection Act apply. … Notice of Appeal [ 24 ] 7(1) A notice of appeal referred to in s 57.3 of the Act must be filed within 30 days after the date on which the notice of administrative penalty was served, in the form approved by the chair, and set out in writing … Decisions and Directions [ 25 ] 10 The appeal board may (

a) Dismiss the appeal, (

b) Vary the notice of administrative penalty, including i. The particulars of the contravention or failure to comply referred to in s 57.1(4)(

b) of the Act , ii. The Administrator’s finding under s 57.1(4)(

c) of the Act , or iii. The amount of the administrative penalty imposed, [ 26 ] or (

c) Allow the appeal and give the directions, if any, that the appeal board considers appropriate in the circumstances. Facts and Analysis: [ 27 ] On April 13, 2021, the Respondents, Ronnie Smith, and Cindy Schmidt (the Respondents) were issued an Order by a safety codes officer, Joe Petryk, directing them to bring their non-compliant private sewage system (the sewage system) into compliance by June 30, 2021 (the Order). The Order was served multiple ways. Service by registered mail was refused. No acknowledgement of service by email was received. The Order was ultimately posted to their property with the aid of a Peace Officer on June 29, 2021. [ 28 ] Under the Safety Codes Act , RSA 2000,

Chapter S-1 ( Safety Codes Act ),

section 49 : 49(1) A safety codes officer may issue an order if the safety codes officer believes, on reasonable and probable grounds, that: (

a) This Act is contravened, or (

b) The design, construction, manufacture, operation, maintenance, use or relocation of a thing or the condition of a thing, process, or activity to which this Act applies is such that there is danger of serious injury or damage to a person or property. [ 29 ] The Respondents took no steps to bring their Sewage System into compliance. Under the Safety Codes Act , the Respondents had a right to appeal the merits of the Order to the Safety Codes Council.

They did not file any such appeal. [ 30 ] On October 26, 2021, the Administrator issued a Notice of Administrative Penalty to the Respondents of $12,000 (the Penalty) because of their non-compliance with the Order issued on April 13, 2021. [ 31 ] Under the Safety Codes Act , s 57.1: 57.1(1) An Administrator may impose an administrative penalty in accordance with this

section and the regulations if the Administrator is of the opinion that a person has failed to comply with or contravened .. (

b) An order made under this Act , or ..

(2) An administrative penalty may be (

a) A single amount, or …

(3) The total amount of an administrative penalty must not exceed … (

b) The maximum cumulative amount of $100 000. … [ 32 ] The Respondents appealed (the Appeal) the Penalty to the Respondent, Land and Property Rights Tribunal (LPRT) by sending a Notice of Appeal by email to the LPRT on November 18, 2021.

The email included a request that the appeal fee be waived as the Respondents lacked the funds. [ 33 ] On November 22, 2021, the LPRT responded to the email with a request for a copy of the decision they wished to appeal, and the Respondents responded in the evening of the same day with a copy of the Notice. [ 34 ] On November 25, 2021, the LPRT emailed the Respondents stating that the filing fee must be received for the Appeal to be valid. [ 35 ] On November 29, 2021, the Respondents sent the appeal fee by Xpresspost via a Postal Money Order in the amount of $250.00 which was received by the LPRT on December 1, 2021. [ 36 ] On December 16, 2021, a Preliminary Hearing occurred before the LPRT.

The Preliminary Hearing was scheduled to determine whether the Appeal was valid in view of the date the fee was received. [ 37 ] Upon hearing from the parties, the LPRT gave the following reasons and or decisions in their Decision dated January 5, 2022: Validity of Appeal:

(1) Decision: the appeal was filed in time and was properly before the LPRT. Scope of Appeal:

(2) Reason: [22] The LPRT’s authority in hearing an appeal of a Notice is more limited than the Safety Codes Council’s authority in hearing an appeal of an Order. If the Appellants had wished to challenge the merits of the Order, they could have filed an appeal with the Safety Codes Council. The Order clearly set out details of the Appellants’ right to appeal to the Safety Codes Council within 35 days of the date of service; however, the Appellants did not do so. [23] Neither the Act nor the Regulation provide authority for the LPRT to vary the findings or directives of a safety codes officer that underlie an order issued under

section 49 of the Act . There was a separate mechanism available to the Appellants to appeal the merits of the Order under

section 50 of the Act , but they failed to utilize it. Accordingly, the Respondent seeks the LPRT’s confirmation and direction that the scope of this appeal is limited to what it may have jurisdiction to consider, which is solely the imposition and/or the amount of the administrative penalty due to non-compliance with the Order, and not the merits of the Order itself

(3) Decision: [27] The LPRT agrees that it does not have the authority to review the merits of the Order; however, the Appellants’ submission may include details of the relevant facts to argue the appropriate amount of the Administrative Penalty. The LPRT declines to dismiss the appeal at this preliminary hearing.

(4) Reason: [29] If an appeal of an administrative penalty could require the LPRT to consider the merits of an Order, this mechanism could be used as a collateral attack on decisions of the Safety Codes Council, which the Act designates as the appropriate forum to appeal compliance orders. This result would create potential for inefficiencies and duplicate appeals, which could not have been the Legislature’s intent. Accordingly, the LPRT agrees it does not have the authority to consider the merits of the Order in the context of this appeal.

As the Appellants agree that they did not comply with the Order and that the Notice was served on October 27,2021, there is nothing to support an appeal with respect to the imposition of the administrative penalty as set out in the Notice. … [31] Accordingly, the LPRT declines to dismiss the appeal at this preliminary stage, but orders that any submission with respect to the merits of the Order must be limited to evidence in support of a reduction in the amount of the administrative penalty, or as to other appropriate directions or conditions, such as timing of payment. [ 38 ] The LPRT heard the Appeal on July 11, 2022, and it issued its decision on July 26, 2022 (the “Decision”).

Although the issuance of a penalty was upheld, the LPRT reduced the amount of the penalty to $1000. The following are excerpts from the Decision:

Issues: [6] The matters to be decided are: 1. Was the imposition of the Notice valid? Specifically, can more than one order be issued for the same offence, and if not, was the Notice issued beyond the limitation period? 2. Is the amount of the Penalty reasonable, and if not, what should be the amount? … [20] The Order was issued April 13, 2021 and compliance was required by June 30, 2021.

The Appellants did not request an Administrator’s review or file an appeal of the Order, and compliance with the Order had not occurred when the administrative penalty was requested by the Safety Codes Officer on August 30, 2021. The Administrator reasonably found that the Appellants had failed to comply with the Order which had been made under the Act, and that it warranted an administrative penalty. There is no evidence that the Appellants have made any effort to remedy their non-compliance with the Order or to discuss remedial measures with the Administrator.

Decision : [29] The Notice is upheld, but the Penalty is reduced to $1,000. Reasons: [30] The Notice was properly issued.

There is no dispute that the Order was issued and that there was no compliance… [31] With respect to the amount of the penalty, the LPRT has some sympathy for the position of the Appellants… … [33] This is not a situation where there are highly significant public safety concerns – it only affects the Appellants and one farmland parcel the LPRT does not agree that there is an urgent public safety concern. [34] However, the LPRT is of the opinion that the Appellants should be provided the opportunity to argue their case before the proper body.

Another Order may be issued pursuant to the Act and the Appellants may appeal it to the Safety Codes Council as provided for in the Act . [35] The amount of the Penalty is subject to multiple factors, and the factors noted by the Respondent mainly focus on compliance with the 2021 Order, which outlines the steps to remedy the issues surrounding the private sewage system and determined the appropriate amount would be the lowest cost compliant system.

As noted above, the LPRT considers that this may be unfair, subject to the findings of the Safety Codes Council. [36] The LPRT agrees that there should be a consequence for such actions, and this is reason to impose a penalty, but that under the circumstances, $2,000 is too high to reflect only the penalty for not complying with the Order.

The LPRT determined that a Penalty of $1,000 was more reasonable, as the matter of responsibility for the cost of compliance of the sewage system should be a matter to be decided by the appropriate body. [37] Accordingly, the LPRT upholds the Notice but reduces the Penalty to $1000. The SCO has the ability to issue another Order, which may be appealed as set out in the Act . [ 39 ] I must look at the rationality, logic, and sufficiency of the reasons.

The principles of justification and transparency require that an administrative decision maker’s reasons reveal an “internally coherent and rational chain of analysis” on “critical points” that “meaningfully account for the central issues and concerns raised by the parties” or “meaningfully grapple with key issues or central arguments raised by the parties”, i.e. to “assure the parties that their concerns have been heard”, demonstrate that they “have actually listened to the parties” and were “actually alert and sensitive to the matter before it”.

Vavilov , at para 102 – 103, and 127 – 128 . [ 40 ] As set out in Vavilov at paragraphs 125 and 126 : It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing Court will not interfere with its factual findings. The reviewing Court must refrain from “reweighing and reassessing the evidence considered by the decision maker”. CHRC , at para 55; see also Khosa , at para 64. That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir , para 47.

The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them. See Southam at para 56.

The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. [ 41 ] In the LPRT Decision, July 26, 2022, at paragraphs 24 to 28, the position of the Administrator regarding the penalty is stated as follows: [24] Administrative penalties are discretionary, and the Respondent considered the objective of administrative penalties under the Act , which is to gain compliance. Internal policy guidelines with respect to the seriousness and impact of the non-compliance were also considered:

• Non-compliance with the Order has an impact on the overall safety system. Orders that are not followed or enforced create aperceived inability to ensure compliance and protect Albertans. • Adequate time was provided to the Appellants to gain compliance.

The situation remains urgent due to ongoing health concernsrelating to the discharge of effluent. • There is no evidence of physical harm to the parties involved; however, there was photographic evidence of children’s toys inproximity of the open effluent and there is potential risk of people coming into contact with the effluent. • The water well was not tested but could have been contaminated by improper disposal and proximity to the effluent. • The Appellants have willfully neglected compliance standards, stating they will not comply, and they have not attempted to rectifythe situation. • The Appellants have benefited by avoiding the cost of replacing the non-compliant sewage system, which could range from$12,000 to $50,000 depending on the specific method. [25] Municipal Affairs has been attempting to work with the Appellants regarding the issue of improper sewage disposal on theirproperty since 2015 and had no communication from the Appellants regarding this issue since October 2020, despite requests for theAppellants’ preferred form of communication.

The Order was served multiple ways – service by registered mail was refused and noacknowledgement of service by email was received. The Order was ultimately posted to the Appellants’ property with the aid of a peaceofficer on June 29, 2021. [26] The administrative penalty provisions under the Act are new, and this was the first Penalty issued. In deciding the amount of thePenalty, the Respondent considered administrative penalties issued by Alberta Occupational Health and Safety and by AlbertaEnvironment.

There were three options: • A penalty of $12,000 which would align with the lowest estimated cost of a compliant system a pump and haul method which maynot be adhered to in the long term. • A penalty of $2,000 which would be a direct result of not complying with the Order.

While outside the penalty amount matrix fortype and impact, it was more in line with first time offences used by other ministries. • A penalty of $25,000 which would be more in line with the average cost of the most common system installed in Alberta andremain withing the penalty matrix for type and impact. [27] The Respondent had the discretion to consider the information and the cost of installing a compliant system.

As noted, the objectiveof the Penalty is to encourage compliance, and if the contravener complies with the Order and immediately installs a new system, the Actprovides that the Respondent may suspend, reduce, vary, or withdraw the penalty. This remedy was not available once the Appeal wasfiled, but the Respondent stressed that the selected amount of the penalty was based on the lowest cost of a compliant system.

This wouldhave provided for discussion with the Appellants for measures to achieve compliance. [28] In conclusion, the Respondent reasonably interpreted the Act, including the scope of authority and discretion. The continued refusalof the Appellants to comply with the Order, and the benefit that they have received in terms of avoiding the cost of installing a compliantsystem justifies the amount of the penalty that has been assessed.

The decision made by the Respondent regarding the amount of thepenalty was supported by the information and material before her and the amount of the penalty is reasonable. [42] There is no dispute that a public authority that makes an administrative decision which affects the rights, privileges andinterests of an individual has a duty to act fairly. See Cardinal v. Director of Kent Institution (SCC), [1985] 2 SCR 643at 653. [43] In Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 22: Although the duty of fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rightsaffected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in agiven set of circumstances.

I emphasize that underlying all these factors is the notion that the purpose of the participatory rightscontained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure,appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by thedecision to put forward their views and evidence fully and have them considered by the decision maker. [44] And at para 24: A second factor is the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates” …Greaterprocedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision isdeterminative of the issue and further requests cannot be submitted. [45] In the matter before me, the LPRT’s decision is not determinative of the issue.

The parties had the right to file an applicationfor judicial review of the LPRT’s decision, Alberta Rules of Court 3.15 above. This is the application currently being considered. [46] And further, at para 26. Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairnessrequires in given circumstances. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the dutyof fairness owed to the individual 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. [ 47 ] The LPRT’s Decision’s demonstrates how the evidentiary record was considered and shows how the outcome reached is not justified and supported by the evidence that was before it. [ 48 ] A reasonableness review is not to be conducted as a line-by-line treasure hunt for error; however, the reasons must demonstrate connection, or a path of analysis, between the evidence and the decision made.

Vavilov at paras 102 – 104 . [ 49 ] I find the LPRT’s reasons do not demonstrate a connection between the evidence and the decision the LPRT made with respect to the issues in the appeal, specifically, the amount of the Penalty. [ 50 ] I find the LPRT’s analysis was contradictory and internally inconsistent. [ 51 ] In paragraphs 31 to 37, the LPRTs reasoning was not logical.

The LPRT confirmed the Respondents are non-compliant but seemed to base their decision on sympathy for the Respondents with the suggestion that this matter begin again with the issuance of new order, essentially to re-litigate to determine the cost of compliance. [ 52 ] The LPRT decreased the Respondents penalty and provided the following reasons for doing so: [31] With respect to the amount of the penalty, the LPRT has some sympathy for the position of the Appellants. … [33] This is not a situation where there are highly significant public safety concerns – it only affects the Appellants and one farmland parcel…the LPRT does not agree that there is an urgent public safety concern. [34] However, the LPRT is of the opinion that the Appellants should be provided the opportunity to argue their case before the proper body.

Another order may be issued pursuant to the Act and the Appellants may appeal it to the Safety Codes Council as provided for in the Act . [35] The amount of the Penalty is subject to multiple factors, and the factors noted by the Respondent mainly focus on compliance with the 2021 Order, which outlines the steps to remedy the issues surrounding the private sewage system and determined the appropriate amount would be the lowest cost compliant system.

As noted above, the LPRT considers that this may be unfair subject to the findings of the Safety Codes Council. [36] The Respondent suggested an option of a $2,000 penalty which is in line with first time offences levied by other ministries was appropriate as a direct result of non-complying with the order. The LPRT agrees that there should be a consequence for such actions, and that this is reason to impose a penalty, but that under the circumstances, $2,000 is too high to reflect only the penalty for not complying with the Order.

The LPRT determined that a Penalty of $1,000 was more reasonable, as the matter of responsibility for the cost of compliance of the sewage system should be a matter decided by the appropriate body. [37] Accordingly, the LPRT upholds the Notice but reduces the Penalty to $1000.

The SCO has the ability to issue another Order, which may be appealed as set out in the Act . [ 53 ] The LPRT did not accept that the Administrators decision to impose a penalty was reasonable and coherent. [ 54 ] The Administrators rationale to impose the $12,00 penalty was noted in paragraphs 24 to 28 of the LPRTs decision (July 26, 2022). The record shows the Administrators rationale included the following, 1. Non-compliance; 2. Adequate time was provided to the Appellants to gain compliance; 3. Severity and impact of non-compliance; and 4.

Range of potential amounts. [24] Administrative penalties are discretionary, and the Respondent considered the objective of administrative penalties under the Act , which is to gain compliance. Internal policy guidelines with respect to the seriousness and impact of the non-compliance were also considered: • Non-compliance with the Order has an impact on the overall safety system. Orders that are not followed or enforced create a perceived inability to ensure compliance and protect Albertans. • Adequate time was provided to the Appellants to gain compliance.

The situation remains urgent due to ongoing health concerns relating to the discharge of effluent. • There is no evidence of physical harm to the parties involved; however, there was photographic evidence of children’s toys in proximity of the open effluent and there is potential risk of people coming into contact with the effluent. • The water well was not tested but could have been contaminated by improper disposal and proximity to the effluent. • The Appellants have willfully neglected compliance standards, stating they will not comply, and they have not attempted to rectify the situation. • The Appellants have benefited by avoiding the cost of replacing the non-compliant sewage system, which could range from $12,000 to $50,000 depending on the specific method. [25] Municipal Affairs has been attempting to work with the Appellants regarding the issue of improper sewage disposal on their property since 2015 and had no communication from the Appellants regarding this issue since October 2020, despite requests for the Appellants’ preferred form of communication.

The Order was served multiple ways – service by registered mail was refused and no acknowledgement of service by email was received. The Order was ultimately posted to the Appellants’ property with the aid of a peace

officer on June 29, 2021. [26] The administrative penalty provisions under the Act are new, and this was the first Penalty issued. In deciding the amount of the Penalty, the Respondent considered administrative penalties issued by Alberta Occupational Health and Safety and by Alberta Environment. There were three options: • A penalty of $12,000 which would align with the lowest estimated cost of a compliant system, a pump and haul method which may not be adhered to in the long term. • A penalty of $2,000 which would be a direct result of not complying with the Order.

While outside the penalty amount matrix for type and impact, it was more in line with first time offences used by other ministries. • A penalty of $25,000 which would be more in line with the average cost of the most common system installed in Alberta and remain withing the penalty matrix for type and impact. [ 55 ] Thus, the LPRT had the information for the cost of compliance for a sewer system but chose to disregard or ignore that evidence. [ 56 ] I note, the Administrator had jurisdiction under the Safety Codes Act , s 57. 1(3)(

b) to issue a penalty of up to $100,000.

In paragraph 26 above, the Administrator also considered the option of a $25,000 penalty “which would be more in line with the average cost of the most common system installed in Alberta”. [ 57 ] As noted above, the LPRT’s reasoning is not logical nor reasonable in paragraph 34 to 37, where they direct: • Another order could be issued pursuant to the Act and the Appellants may appeal it to the Safety Codes Council. • The issue of the cost of compliance of the sewage system should be decided by an appropriate body. [ 58 ] The Respondent did not take the steps available to them when the Order was issued on April 13, 2021.

They did not appeal the Order to the Safety Codes Council at that time. In the LPRT’s decision dated January 5, 2022, at paragraph 28 and 29: [28] Both the Order and the previous Order issued in March 2020 clearly stated that a person on whom this Order is issued may, if the person objects to the contents of the Order, appeal the Order to the Safety Codes Council within 35 days of the date the Order was served on the person.

The Appellants did not do so, and an appeal of the Notice does not provide for consideration of whether the issuance of the Order was appropriate. [29] If an appeal of an administrative penalty could require the LPRT to consider the merits of an order, this mechanism could be used as a collateral attack on decisions of the Safety Code Council, which the Act designates as the appropriate forum to appeal compliance Orders.

This result would create potential for inefficiencies and duplicate appeals, which could not have been the Legislature’s intent. [ 59 ] And again, in the LPRT’s decision of July 26, 2022, at paragraph 20: [20] The Order was issued April 13, 2021 and compliance was required by June 30, 2021. The Appellants did not request an Administrator’s review or file an appeal of the Order, and compliance with the Order had not occurred when the administrative penalty was requested by the Safety Codes Officer on August 30, 2021.

The Administrator reasonably found that the Appellants had failed to comply with the Order which had been made under the Act , and that it warranted an administrative penalty. There is no evidence that the Appellants have made any effort to remedy their non-compliance with the Order or to discuss remedial measures with the Administrator. [ 60 ] The LPRT had already found they could not address the issuance of the Order in their January 5, 2022, decision.

The LPRT confirmed that finding in their July 26, 2022, decision above. [ 61 ] Therefore, to suggest or give the direction that the Respondent could start over with the issuance of a new Order, to determine the “cost of compliance of the sewage system”, is neither reasonable nor logical as they already determined that the Respondents did not take the steps they were entitled to take under the legislation regarding the April 13, 2021, Order in both their January 5, 2022, and July 26, 2022 decisions. [ 62 ] At paragraph 29 in the LPRT’s first decision, dated January 5, 2022, the LPRT discusses inefficiencies and duplicate appeals, yet that is what they are suggesting or giving a direction as to what should happen in the matter before me. [ 63 ] The LPRT had evidence of the efforts the Administrator had made since 2015 to work with the Respondents regarding the issue of the sewage system. [25] Municipal Affairs has been attempting to work with the Appellants regarding the issue of improper sewage disposal on their property since 2015 and had no communication from the Appellants regarding this issue since October 2020, despite requests for the Appellants’ preferred form of communication. [ 64 ] The LPRT also had evidence from the Administrator that had the Respondent’s complied, once the Penalty had been imposed, then the Administrator could have even withdrawn the penalty, but the Respondents still did not comply. [27] As noted, the objective of the Penalty is to encourage compliance, and if the contravener complies with the Order and immediately installs a new system, the Act provides that the Respondent may suspend, reduce, vary, or withdraw the penalty.

This would have provided for discussion with the Appellants for measures to achieve compliance. [ 65 ] The LPRT giving a direction to re-litigate is not reasonable considering their reasons in paragraph 20, 28 and 29 above, read

together with the evidence from the Administrator in paragraph 25 and 27. The Respondents have had the opportunity to comply since 2015, but have taken no steps to engage or discuss compliance with the Administrator since October 2020. Of significance is that the Respondents have been aware of the issue regarding compliance since 2015. [ 66 ] Under the Safety Codes Act , RSA 2000,

Chapter S-1 ( Safety Codes Act ), A safety codes officer may issue an Order: S 49. This was done by the safety codes officer on April13, 2021. An Order was issued on the Respondents directing them to bring their non- compliant sewage system into compliance by June 30, 2021. [ 67 ] Pursuant to s 57.1(1) to (3)(b), Safety Codes Act , the Administrator has jurisdiction to impose an administrative penalty for non-compliance. This is what the Administrator did in the matter before me.

The Administrator imposed a Penalty on the Respondents for non-compliance, on October 26, 2021. [ 68 ] The Respondents appealed the Penalty to the LPRT, by sending a Notice of Appeal by email to the LPRT on November 18, 2021. [ 69 ] Pursuant to s 57.3(1) of the Safety Codes Act , the LPRT are the appropriate body to consider the amount of the administrative penalty.

The LPRT can vary the amount of the administrative penalty imposed, pursuant to s 10 of the Administrative Penalties Regulation . [ 70 ] I find the parties have taken the appropriate steps available to them under the legislation regarding the Penalty, thus directing the parties to re-litigate is not reasonable. [ 71 ] I find, the Administrator provided reasons and rationale to the LPRT, an “appropriate body”, for the $12,000 penalty during the Appeal. I find the LPRT did not engage with the reasoning provided by the Administrator regarding the $12,000 penalty.

The LPRT chose to disregard the evidence of the Administrator and simply reduced the penalty because they questioned the merits of the Order by suggesting or directing the issuance of a new Order. [ 72 ] The reduction in the amount of the administrative penalty was in the LPRTs jurisdiction, but the reasons to vary were not supported by the evidence before them. The LPRT focused on the cost of compliance for a sewage system in their decision and were directing the issuance of a new order to allow the Respondents to re-litigate the matter to determine the cost, but: 1.

The LPRT had evidence before them that the Respondent has been aware of the issue of compliance since approximately 2015; 2. The LPRT had acknowledged that the Respondents did not take steps to appeal the Order for compliance in both their decisions, January 5, 2022, and July 26, 2022; 3. The LPRT had evidence before them that if the Respondents had engaged with the Administrator once the Penalty had been issued, and worked towards compliance at that time, the Administrator had the jurisdiction to withdraw the penalty; and 4.

The LPRT had evidence before them provided by the Administrator regarding the cost of compliance for a sewer system but chose to ignore and or disregard that evidence. New Evidence: [ 73 ] The Respondents made submissions before me which included new evidence, however fresh evidence that was not before the LPRT is not allowed and will not be admitted as the Respondents did not make an application to allow new evidence pursuant to R 3.22.

Conclusion [ 74 ] The reasons given by the LPRT to decrease the Respondents penalty are not logical. [ 75 ] I find that the LPRT’s decision, both the reasons and further direction, did not meet the requisite standard of justification, transparency and intelligibility and is not justified within its factual and legal constraints. [ 76 ] I find the LPRT’s decision unreasonable and quash it. [ 77 ] I confirm the Administrator’s penalty decision. Costs [ 78 ] The parties may appear before me to speak to costs. Heard on the 18 th day of January, 2024.

Dated at the City of Edmonton, Alberta this 23 rd day of January, 2024.

C.L. Arcand-Kootenay J.C.K.B.A. Appearances: Natalie Tymchuk for the Applicant Michael D’Alquen for the Respondent Land and Property Rights Tribunal Cindy Schmidt and Ronnie Smith (SRL) for the Respondent