The Rural Municipality of St. Clements v. Date:, 2013 MBCA 65

Citation: The Rural Municipality of St. Clements v. Date: 20130704 Zucawich, 2013 MBCA 65 Docket: AI 11-30-07597 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : THE RURAL MUNICIPALITY OF ST. CLEMENTS )) G. W. Zucawich on his own behalf ) (Applicant) Respondent ) M. G. Tramley ) for the Respondent - and - ) ) Appeal heard: GERALD WILLIAM ZUCAWICH ) March 19, 2012 ) (Respondent) Appellant ) Judgment delivered: ) July 4, 2013 BEARD J.A. I.

THE ISSUE [ 1 ] The appellant, Gerald William Zucawich, is appealing an order pronounced on March 3, 2011 (the restraining order), pursuant to s. 240 of The Municipal Act , C.C.S.M., c. M225 (the Act ). In that order, the application judge authorized the respondent, the Rural Municipality of St. Clements or its representatives (St. Clements), to enter the property at 6043 Henderson Highway (the property) to carry out remedial action under a clean-up order and enjoined Mr. Zucawich from interfering with the clean-up. The clean-up order was issued pursuant to St.

Clements’ By-law No. 16-2007, being the municipality’s unsightly property by-law (the By-law). [ 2 ] The grounds of appeal raised by Mr. Zucawich in his notice of appeal are as follows: (

i) the application judge erred in holding that the November 19, 2009 clean-up order was valid and that its validity could not be attacked; (ii) the application judge erred in issuing the restraining order under s. 240 of the Act allowing St. Clements to enter onto the property and in restraining and prohibiting Mr.

Zucawich from in any way preventing or interfering with that entry; (iii) the application judge erred in finding the property unsightly at the time of the issuance of the restraining order under s. 240; and (iv) the application judge erred in finding the clean-up order had not been satisfied. [ 3 ] At the appeal hearing, Mr. Zucawich also argued that the By-law was null and void, thereby invalidating any order made pursuant to that By-law, and that the restraining order was unreasonable, entitling him to a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ). [ 4 ] St.

Clements argues that the appeal has been rendered moot due to it having completed the clean-up work during the week of November 7, 2011. It takes the position that it no longer needs to enter the property, so it has no further need of the restraining order that is under appeal. For this reason, it argues that this court should decline to hear the appeal. II. THE FACTS [ 5 ] The facts in this matter are not at issue. St. Clements first received complaints about the condition of the property in 2005. Attempts were made over the next few years to have Mr.

Zucawich voluntarily clean up the property, but they were largely

unsuccessful. On February 13, 2009, St. Clements issued an order confirming the unsightly condition of the property and ordering that it be cleaned up by March 15, 2009. When Mr. Zucawich failed to take any action, St. Clements twice attended to do the clean-up, but, on both occasions, Mr. Zucawich refused them entry. [ 6 ] On November 17, 2009, St. Clements re-inspected the property, found that it continued to be in an unsightly condition and, on November 19, 2009, issued a new clean-up order requiring the property to be cleaned up by December 19, 2009. This is the clean-up order that was served on Mr.

Zucawich on November 26, 2009, and is the subject of this appeal. It contained a warning that failure to comply would result in St. Clements arranging for the clean-up at Mr. Zucawich’s expense and also advised him of his right to appeal, with an appeal form attached. Mr. Zucawich has never pursued a statutory appeal of the clean-up order. [ 7 ] On April 12, 2010, St. Clements served a letter on Mr. Zucawich that was dated April 1, 2010, confirming that the property remained unsightly and that it would be entering the property on April 20, 2010, to clean it up pursuant to the clean-up order.

He was advised that the estimated cost of the clean-up would be $11,550. At the time of service, Mr. Zucawich threatened to have anyone who took anything from the property charged with theft. [ 8 ] It appears that the next time that St. Clements attended at the property was on June 16, 2010, the purpose being to serve Mr. Zucawich with a letter providing him one final opportunity to clean up the property. The letter indicated that, if he failed to do so, representatives would return on June 23, 2010, to undertake the clean-up. [ 9 ] On June 23, 2010, several representatives of St.

Clements and a contractor hired to do the clean-up arrived at the property and began to work. Neighbours arrived and someone blocked the exit, so the representatives called the police. Mr. Zucawich then asked the representatives and the contractor to leave, so they all stopped working and left. [ 10 ] On July 6, 2010, St. Clements filed its application for a restraining order under s. 240 of the Act , which was granted on March 3, 2011. When the restraining order was granted, Mr. Zucawich quickly applied for a stay pending appeal and also filed a notice of appeal.

The application judge refused the stay application by judgment pronounced on October 19, 2011. [ 11 ] Mr. Zucawich had been represented by legal counsel for the proceedings in the lower court, but, in late September 2011, he filed a notice to act in person in this court and represented himself at both the hearing of his motion for a stay and for this appeal. [ 12 ] Mr. Zucawich was served with a notice that St. Clements would be completing the clean-up work during the week of November 7, 2011, and the clean-up of the property was completed at that time.

Thus, no work remains to be done under the clean-up order and, as indicated by St. Clements, it has no further need for the restraining order. III. STANDARD OF REVIEW [ 13 ] The proceedings between the parties were initiated by an administrative order, being the clean-up order issued by St. Clements, and Mr. Zucawich is challenging the validity of that order. As a result, it may appear that the appropriate standard of review should be that applicable to an appeal from a review of an administrative decision. (See Dr. Q v.

College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at paras. 43-44 , [2003] 1 S.C.R. 226 .) That is not the case in this instance because the application before the application judge was not for a review of the clean-up order, but for a restraining order, which is made in the first instance by the court. Further, while the effect of the application judge’s decision was to uphold the clean-up order, none of the decisions that she made required her to rule on the essential validity of the clean-up order or the decisions made by St.

Clements in relation to the granting of that order. [ 14 ] As will be seen, although the outcome of the appeal is to leave the clean-up order in effect, none of the relevant grounds of appeal relate to the validity of the clean-up order, but to issues that were decided by the application judge as matters of first instance. [ 15 ] For these reasons, the standard of review to be followed in this appeal is that applicable in a civil case, being the well- known standard set out in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 .

Questions of law are to be reviewed on a standard of correctness, while questions of fact and inferences of fact are to be reviewed on a standard of palpable and overriding error. Questions of mixed fact and law, including the application of a legal standard to a set of facts, are also to be reviewed on a standard of palpable and overriding error, unless the question relates to an extricable question of law, including the characterization of the legal standard, for which the applicable standard is that of correctness. IV.

THE LEGISLATION [ 16 ] The relevant sections of the Act are: Municipal purposes 3 The purposes of a municipality are (

a) to provide good government; (

b) to provide services, facilities or other things that, in the opinion of the council of the municipality, are necessary or desirable for all or a part of the municipality; and (

c) to develop and maintain safe and viable communities.

Municipal inspections and enforcement 239(1) If this or any other Act or a by-law authorizes or requires anything to be inspected, remedied, enforced or done by a municipality, a designated officer of the municipality may, after giving reasonable notice to the owner or occupier of land or the building or other structure to be entered to carry out the inspection, remedy, enforcement or action, (

a) enter the land or structure at any reasonable time, and carry out the inspection, enforcement or action authorized or required by the Act or by-law; …. Court authorized inspections and enforcement 240(1) The municipality may apply to the court for an order under subsection (2) if a person (

a) refuses to allow or interferes with the entry, inspection, enforcement or action referred to in

section 239; or …. Court order 240(2) On an application under subsection (1), the court may issue any order it considers appropriate, including (

a) restraining a person from preventing or interfering with the entry, inspection, enforcement or action; or …. Order to remedy contravention 242(1) If a designated officer finds that a person is contravening a by-law or this or any other Act that the municipality is authorized to enforce, the designated officer may by written order require the person responsible for the contravention to remedy it if, in the opinion of the officer, the circumstances so require. Content of order 242(2) The order may (

a) direct a person to stop doing something, or to change the way in which the person is doing it; (

b) direct a person to take any action or measure necessary to remedy the contravention of the Act or by-law, including the removal or demolition of a structure that has been erected or placed in contravention of a by-law and, if necessary, to prevent a reoccurrence of the contravention; (

c) state a time within which the person must comply with the directions; and (

d) state that if the person does not comply with the directions within a specified time, the municipality will take the action or measure at the expense of the person. Review by council

244(1) A person who receives a written order under

section 242 or 243 may request the council to review the order by written noticewithin 14 days after the date the order is received, or such longer period as a by-law specifies. Powers of council 244(2) After reviewing the order, the council may confirm, vary, substitute or cancel the order. Municipality remedying contraventions 245(1) A municipality may take whatever action or measures are necessary to remedy a contravention of a by-law or this or any otherAct that the municipality is authorized to enforce or to prevent a re-occurrence of the contravention, if (

a) the designated officer has given a written order under

section 242; (

b) the order contains a statement referred to in clause 242(2)(b); (

c) the person to whom the order is directed has not complied with the order within the time specified in the order; and (

d) the appeal period respecting the order has passed or, if an appeal has been made, the appeal has been decided, and it allows themunicipality to take the action or measures. Costs 245(3) The costs of an action or measure taken by a municipality under this

section are an amount owing to the municipality by theperson who contravened the Act or by-law. [17] The relevant portions of By-law No. 16-2007 have been attached as

Schedule A. V. THE APPLICATION JUDGE’S DECISION [18] The application judge began her reasons by stating that the application by St. Clements was for an order under s. 240 ofthe Act restraining Mr. Zucawich, or anyone acting on his behalf, from preventing or interfering with St. Clements in the enforcement ofthe clean-up order that it had issued on November 19, 2009, for the property. [19] She indicated that Mr. Zucawich was resisting the application on the basis that the clean-up order was not valid and,alternatively, that the property had already been cleaned up. She stated that the two bases on which Mr.

Zucawich was challenging thevalidity of the clean-up order were that the copy of the clean-up order that had been served on him was unsigned and that the designatedofficer had not properly exercised his discretion in determining that the property was unsightly. [20] She noted that St. Clements’ response was that Mr. Zucawich had failed to avail himself of the appeal procedureprescribed by the Act to appeal the clean-up order, so he was precluded from challenging it in the proceeding before her on the basis ofthe doctrine of collateral attack. She noted, further, that St.

Clements took the position that, as of that date, the property had not beencleaned up. [21] The application judge resolved Mr. Zucawich’s major objection to the clean-up order by applying the doctrine ofcollateral attack. She considered the decisions in R. v. Consolidated Maybrun Mines Ltd., (SCC), [1998] 1 S.C.R. 706,and R. v. Al Klippert Ltd., (SCC), [1998] 1 S.C.R. 737, as well as Edmonton (City) v. Cormier, 2002 ABQB 133 (QL),all of which dealt with a collateral attack on an administrative order.

After applying the five factors set out in Consolidated Maybrun tothe facts of the case, she found as follows: I am satisfied that the Act’s purpose and wording indicate that the legislature intended that [Mr. Zucawich’s] challenge to theclean-up order be decided by the council of the municipality as part of the established appeal procedure. [Mr. Zucawich] says that hechose not to appeal because he thought the clean-up order was invalid due to lack of signature. However, this does not change the factthat he chose not to appeal. Not only did he not appeal at the time, he has not attempted to do so since.

I, therefore, conclude that [Mr. Zucawich] is precluded from attacking the validity of the clean-up order in this proceeding; as aresult, I need not address his arguments as to why the order is invalid.

[ 22 ] She also dealt with Mr. Zucawich’s argument that the property was no longer in an unsightly condition. She accepted the evidence filed on behalf of St. Clements that the work had not been completed on June 23, 2010, before they left the property, and that nothing appeared to have been done thereafter. She then proceeded to grant to St. Clements the order it had requested under s. 240 of the Act , restraining Mr. Zucawich or anyone on his behalf, from preventing or interfering with the clean-up of the property. [ 23 ] Given her findings, she stated that it was not necessary for her to deal with Mr.

Zucawich’s challenges to the validity of the clean-up order on the bases that the copy of the clean-up order served on him was unsigned and that the designated officer had not properly exercised his discretion in determining that the property was unsightly. VI. THE POSITIONS OF THE PARTIES The Appellant’s Position [ 24 ] Mr. Zucawich became self-represented some time following the filing of the notice of appeal in this court, so he prepared his own factum and argued the appeal on his own behalf.

His arguments focus on the following issues: - the application judge did not address his argument that the clean-up order was not legal because the copy that he received had not been signed; - the By-law was not valid for a number of reasons that need not be set out here; - it should have been the whole council, and not a designated officer, that decided whether his property was unsightly; - there was no complaint made to St. Clements regarding the condition of the property, without which St.

Clements was not entitled to take any action under the By-law or the Act ; - the restraining order was unreasonable, entitling him to relief under s. 24(1) of the Charter ; and - there were issues with his lawyer taking instructions from the lawyer for St. Clements and making a concession at the hearing with which Mr. Zucawich was not in agreement. [ 25 ] Mr. Zucawich did not address the question of the doctrine of collateral attack; in particular, he did not point to any errors in the law cited by the application judge on the issue of the doctrine of collateral attack, in her

summary of the facts or any inferences of fact that she drew, or in her application of the facts to the law. His position was that she erred in not considering all of the issues that he raised at the appeal, as set out above. The Respondent’s Position [ 26 ] St. Clements’ first position is that this court should decline to hear the appeal because it has been rendered moot since the work authorized by the order has already been completed.

It states that a decision by this court will not have the effect of resolving or affecting the rights of the parties, and, if the decision will have no practical effect on such rights, the court should decline to hear and decide the matter. For the reasons set out herein, at paras. 102-105, I would not decline to hear and determine this appeal on the basis that it is moot. [ 27 ] St.

Clements’ second position is that the doctrine of collateral attack applies to prevent a party from challenging the validity of an order (here the clean-up order) in separate proceedings when that party has not invoked the available procedure for reviewing or reconsidering the order. It argues that the application judge identified the correct test to be applied from Consolidated Maybrun and Klippert and committed no error in applying it to the facts in this case. It states that there is no legal basis to interfere with her decision as regards the application of the doctrine of collateral attack. [ 28 ] St.

Clements’ position is that, if Mr. Zucawich is entitled to attack the validity of the clean-up order, his grounds of attack are without foundation. It argues as follows: - the clean-up order contained all of the information required by the By-law and the Act , it had all of the information required to put Mr. Zucawich on notice of the action being undertaken by St.

Clements, and there were no grounds to conclude that the clean-up order was not valid on the basis that it was not signed; - there was overwhelming evidence to support its position that the property was unsightly in November 2009; and - complaints about the condition of the property are not a prerequisite to proceeding under the By-law or the Act , so there are no grounds to conclude that the clean-up order is not valid on this basis. [ 29 ] St.

Clements argues that there was ample evidence that the property remained unsightly up until it enforced its clean-up order, and there is no basis to interfere with the application judge’s finding in that regard. [ 30 ] St. Clements’ position is that Mr. Zucawich’s arguments related to a remedy under the Charter were not raised at the hearing and should not be considered on the appeal. Regarding Mr. Zucawich’s complaints about his lawyer, St. Clements argues that those are not matters for the court to address on the appeal. VII. ANALYSIS – GROUNDS OF APPEAL (

i) T he application judge erred in holding that the November 19, 2009 clean-up order was valid and that its validity could not be attacked.

[31] Mr. Zucawich’s notice of appeal states, as one ground of appeal, that the application judge erred in holding that thevalidity of the clean-up order could not be attacked. The particulars of the errors are not set out in the notice of appeal, and Mr.Zucawich did not address this ground of appeal in his factum or in his oral argument, so there is no indication as to the manner in which itis alleged that the application judge erred – whether an error of law, of fact, and/or of mixed fact and law.

Given that this issue formedthe basis of the application judge’s decision, however, I will undertake a review of her reasons. [32] Some assistance regarding this ground of appeal can be taken from argument in the supplementary application brieffiled by Mr.

Zucawich’s lawyer in the court below on January 17, 2011, wherein the lawyer stated (at paras. 36-37): It is clear that the doctrine as contemplated in Consolidated [Maybrun] deals specifically with cases where the attack on an orderis raised as a defence to a conviction for failure to comply with that order, rather than as grounds for this Honourable Court to grant asecondary order to enforce the first. For these reasons [Mr.

Zucawich] submits that the test from Consolidated [Maybrun] does not apply in these circumstances. …. [33] This issue raises a question of law, being whether the application judge applied the correct law. Thus, the standard ofreview is one of correctness. The Law Regarding the Doctrine of Collateral Attack [34] Both the application judge and St. Clements rely on Consolidated Maybrun and Klippert as the leading authoritiesregarding the doctrine of collateral attack.

These decisions have been judicially considered, and the comments of those other courts arerelevant in interpreting and applying the principles in those cases. I will, very briefly, review the law regarding the doctrine of collateralattack. [35] In Wilson v. The Queen, (SCC), [1983] 2 S.C.R. 594, McIntyre J., for the majority, described acollateral attack as “an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of theorder or judgment” (at p. 599). (See also Canada (Attorney General) v.

TeleZone Inc., 2010 SCC 62 at para. 60, [2010] 3 S.C.R. 585.) [36] The rationale behind the doctrine of collateral attack (also referred to as the rule against collateral attack) was set out byIacobucci J., for the majority, in R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333 (at p. 349): …. The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of theadministration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of thecourt issuing the order would result in uncertainty.

Further, “the orderly and functional administration of justice” requires that courtorders be considered final and binding unless they are reversed on appeal …. …. (See also Canada (Human Rights Commission) v. Taylor, (SCC), [1990] 3 S.C.R. 892 at 942 (wherein Dickson C.J.C.,for the majority, found that the rule against collateral attacks contributed to the maintenance of public order); Danyluk v. AinsworthTechnologies Inc., 2001 SCC 44 at paras. 18-19, [2001] 2 S.C.R. 460; Toronto (City) v.

C.U.P.E., Local 79, 2003 SCC 63 at paras. 22,34, [2003] 3 S.C.R. 77 (wherein Arbour J. stated that “[p]rohibited ‘collateral attacks’ are abuses of the court’s process” (at para. 34));and TeleZone at para. 61 (wherein the Supreme Court of Canada found that the rule against collateral attack was intended to prevent aparty from circumventing the effect of an adverse decision).) [37] In Consolidated Maybrun and Klippert, the court determined that the doctrine of collateral attack was not limited to acollateral attack on a judgment or order of a court, but would extend to an attack on an administrative order, albeit with some limitations.

The court provided a non-exhaustive list of factors to be considered in determining whether the doctrine would apply in a specificsituation. [38] Those two decisions arose in the context of a party being prosecuted for failing to comply with an administrative orderand that party raising, as a defence, that the order was invalid, having failed to pursue the legislated procedure for appealing the order. That is not the fact situation in this case, as Mr. Zucawich was never prosecuted. Instead, St. Clements took steps in court to enforce itsorder; in resisting enforcement, Mr.

Zucawich argued that the underlying order was not valid. This raises the question of whether theanalysis set out in Consolidated Maybrun applies in this fact situation, which was the position argued by Mr. Zucawich before theapplication judge. [39] This question has been considered in three decisions from Alberta, each dealing with forms of clean-up orders. InEnergy Resources Conservation Board (Alta.) v. Sarg Oils Ltd. et al., 2002 ABCA 174, 312 A.R. 79, leave to appeal to S.C.C. refused,[2002] S.C.C.A. No. 371 (QL), (Sarg), Sarg Oils Ltd. was an oil well licencee.

When it stopped operating its wells, the EnergyResources Conservation Board (ERCB) ordered it to take certain steps to properly abandon the wells. While there was somecommunication, Sarg Oils Ltd. did not do the work and the ERCB eventually undertook the work and ordered Sarg Oils Ltd. to pay. When the ERCB took proceedings in the courts to collect the costs, Sarg Oils Ltd. argued that the ERCB had not acted fairly and, as aresult, it should not be required to pay the costs.

The ERCB argued that this was an impermissible collateral attack on its original order. [40] The trial judge, applying the factors in Consolidated Maybrun, agreed with Sarg Oils Ltd., but the Court of Appealreversed the trial judge’s decision. The trial judge found that the differences between the penal proceedings in Consolidated Maybrun

and Klippert and those in the matter before him favoured allowing the collateral attack. On this point, the Court of Appeal in Sarg stated(at para. 35): While Klippert and Maybrun both involved collateral attacks against tribunal orders in later noncompliance proceedings,nothing therein suggests that they ought to be limited to criminal proceedings. Indeed, the purpose behind the collateral attack rule (topreserve the integrity of the administrative system) applies equally to a case like this: Grossman (Bankrupt), Re (1998), 1998 ABQB381 , 222 A.R. 139 (Q.B.).

Moreover, in Klippert and Maybrun, the potential penalty was financial, not imprisonment. Fromthat point of view, they are not dissimilar to this case. [41] The Consolidated Maybrun analysis was found to apply in both Prince Resource Corp. v. Energy and Utilities Board(Alta.), 2003 ABCA 243, 346 A.R. 226, and Cormier. In Prince, the plaintiff argued that it should not have to pay costs assessed againstit in circumstances similar to those in Sarg, arguing that the underlying order was invalid.

In Cormier, an order was issued by themunicipality requiring the Cormiers to remove a number of vehicles and equipment from the property, as they were being stored there incontravention of a municipal by-law. When they did not comply, the municipality applied to the court for an order to enforce its removalorder. The Cormiers objected, arguing that the removal order was invalid.

In both cases, the arguments were rejected on the basis thatthe parties should have followed the statutory appeal procedures to challenge the underlying orders. [42] These Alberta cases clearly support the view that the Consolidated Maybrun/Klippert analysis will apply not only withrespect to collateral attacks of administrative orders during subsequent penal proceedings, but also during subsequent enforcementproceedings in the civil courts. (See also Michaud v.

Manitoba, 2011 MBQB 34, 263 Man.R. (2d) 62, and this court’s obiter commentson appeal at 2012 MBCA 21 at para. 14, 280 Man.R. (2d) 1.) [43] I agree that there is no reason why the analysis undertaken and the factors set out by the Supreme Court inConsolidated Maybrun and Klippert would be limited to a subsequent penal proceeding.

In that regard, I would adopt the comments ofthe Alberta Court of Appeal in Sarg, as set out at para. 40 herein. [44] Thus, I would find that the application judge was correct, and therefore made no error in law, in applying theConsolidated Maybrun/Klippert analysis in this case to determine whether Mr. Zucawich could challenge the validity of the clean-uporder in the proceedings before her, or whether such a challenge was contrary to the doctrine of collateral attack and, therefore, he wasprecluded from doing so.

Criteria for the Application of the Doctrine of Collateral Attack of an Administrative Decision [45] Mr. Zucawich also argued, in his brief in the lower court, that “[b]ased on the application of the Consolidated[Maybrun] test, [Mr. Zucawich] submits that the doctrine does not bar [him] from attacking the validity of the November 19, 2009 orderin this Court” (at para. 30). [46] This requires the court to interpret the Act and the By-law, as they relate to the doctrine of collateral attack. This is aquestion of statutory

interpretation, which is a question of law. [47] When determining whether a person charged with failing to comply with an administrative order can collaterally attackthe validity of that order, the Supreme Court of Canada has indicated, in Consolidated Maybrun and Klippert, that it is necessary todetermine the legislative intention as to which is the appropriate forum to decide whether the administrative order is, or is not, valid.

Inthis regard, the Supreme Court of Canada has made it clear that the focus regarding collateral attack is not with respect to whether aperson has the right to challenge the validity of an order, but, rather, whether the legislature has prescribed a specific forum for doing so. [48] In order to determine whether the legislature intended that a specific forum should decide whether the administrativeorder is, or is not, valid, a court should consider the following five factors (see Consolidated Maybrun at paras. 41-51): 1. the wording of the statute from which the power to issue the order derives; 2. the purpose of the legislation; 3. the availability of an appeal; 4. the nature of the collateral attack in light of the appeal tribunal’s expertise and raison d’être; and 5. the penalty on a conviction for failing to comply with the order. [49] L’Heureux-Dubé J. further explained the application of these factors in Klippert (at para. 14): However, I wish to stress once again that these factors are not necessarily exhaustive but rather constitute various indicia whichmight be of assistance in determining the legislature’s intention.

Furthermore, due to the particular characteristics of a givenadministrative scheme, it may be that one of these factors will be decisive on its own in one case but not in another. The determinationof legislative intent is never a mechanical act, and an inflexible formula cannot be applied in carrying it out.

[ 50 ] These are the factors that were considered by the application judge. The Wording of the Statute and the Purpose of the Legislation [ 51 ] Consolidated Maybrun indicates that a court should consider the wording of the statute from which the power to issue the order derives. Although the clean-up order was issued pursuant to the By-law, the municipality’s power to enact the By-law derives from the Act . As it is the legislature’s intention that must be considered, it is the Act that must be examined. [ 52 ]

Section 3 of the Act states that the purpose of the legislation is to give municipalities the ability to provide good government, to provide necessary or desirable services, or other things, that, in its opinion, are necessary or desirable for all parts of the municipality, and to develop and maintain safe and viable communities. [ 53 ]

Section 231 (

a) of the Act confers broad powers on a municipal council to govern the municipality as it sees fit and to pass by-laws in this regard. It specifically states that the power given to the municipality is stated in general terms “to respect [the municipality’s] right to govern the municipality in whatever way the council considers appropriate,” within its jurisdiction. This power includes the ability to pass by-laws regarding unsightly property (see ss. 232(1)(

c) and (

f) and ss. 233(a), (

b) and (d)). The Act also seeks to enhance the ability of a municipal council to respond to issues within the community by passing by-laws (see s. 231 (b)). [ 54 ] Furthermore, the Act gives a municipal council the ability to pass enforcement by-laws, including by-laws that would permit the expeditious enforcement of by-laws through the issuance of time-sensitive enforcement orders by designated officers (see s. 232(1) (

o) and ss. 242(1) and (2) ). [ 55 ] The Act also gives municipal councils broad authority to take any actions or measures necessary to remedy by-law violations or to prevent a re-occurrence of contraventions, such as seizing or removing items that contravene the by-law and pursuing penal proceedings, costs or restraining orders through the courts (see ss. 236(1)(b), 240(1) and 245(1)). [ 56 ] In

summary, these provisions suggest that the purpose of the Act is to give the council of a municipality broad powers of governance through its by-laws, and the ability to expeditiously enforce them in a variety of ways.

In this regard, consider specifically s. 231 (a), which indicates that the power given to a municipal council to pass by-laws “is stated in general terms … to give broad authority to the council and to respect its right to govern the municipality in whatever way the council considers appropriate.” Clearly, the legislature intended to give great deference to a municipal council’s governance. [ 57 ] The application judge came to this same conclusion, noting the broad powers set out in s. 3 of the Act , the extensive power to pass by-laws regarding the maintenance of properties and abatement of unsightly properties, and the significant enforcement powers. [ 58 ] Mr.

Zucawich’s position before the application judge was that s. 240 of the Act and the By-law contemplate oversight by the court, which indicates that the court should hear an attack on an administrative order. In fact, the By-law makes no reference to court proceedings or judicial review.

Section 240 is not a judicial oversight provision; rather, it permits a municipality to apply to a court for a restraining order to restrain a person from preventing it from entering a property for a purpose set out in s. 239. Mr. Zucawich’s argument cannot be supported on any reading of the Act . [ 59 ] I would find that the application judge was correct in her assessment of the wording of the statute and the purpose of the legislation. The Availability of an Appeal [ 60 ] There is provision in the Act to appeal an order made by a designated officer, with similar and complementary provisions in the By-law.

Pursuant to s. 244(1) of the Act , a person who receives an enforcement order pursuant to a by-law or the Act can ask the municipal council to review the order by giving written notice within 14 days after the order was received. Similarly, s. 7 of the By-law provides that an interested person can appeal an order made by a designated officer by filing an objection. Both of these provisions apply to the clean-up order. [ 61 ]

Section 8 of the By-law states that the council will hear the appeal within 40 days of receiving the objection by holding a hearing. This suggests that there will be a de novo process, which allows the order to be reconsidered in light of submissions made by the affected party. The council, either sitting in whole or as a subcommittee, has the full power to review the order of a designated officer and may confirm, vary or set aside the order (see the Act , s. 244(2) and the By-law, s. 9).

No further right of appeal is provided, meaning that the municipal council would make the final determination on the validity of municipal orders. [ 62 ] Overall, these provisions indicate that the legislature intended that any irregularities in a municipal order would be dealt with expeditiously by allowing the council to vary the original order or substitute alternative provisions, and that all challenges to the validity of municipal orders would be quickly and finally determined by the municipal council.

The fact that there is no further right of appeal from the council supports the general purpose of the Act , being that the legislature intended to give broad powers, and show great deference, to a municipal council’s governance. [ 63 ] After considering the right of appeal in s. 244(1) of the Act , the application judge noted that Mr. Zucawich took the position that the right of appeal was a limited one, given that, unlike the situation in Consolidated Maybrun , Klippert and Cormier , there was no right of appeal from a decision of the municipal council. She concluded that:

…. … I am not persuaded that these rights of further appeal diminish the fact that an expansive right of appeal is available underthe Act; council is not limited in what it may consider or decide on an appeal. This broad power of appeal is, in my view, a significantindicator that the legislature intended that [Mr. Zucawich’s] challenge to the validity of the clean-up order be considered and decided bycouncil in the administrative appeal procedure. [64] I would not accept Mr. Zucawich’s argument that the right of appeal in the Act and the By-law contemplates oversightby the court.

I would find that the application judge was correct in her assessment that the right of appeal is broad and shows anintention that any appeal from an order under the By-law be heard and determined by the municipal council through the statutory appealprocedure. The Nature of the Collateral Attack in Light of the Appeal Tribunal’s Expertise and Raison d’Être [65] I will first consider the appeal tribunal’s expertise and raison d’être.

L’Heureux-Dubé J. explained this factor inConsolidated Maybrun (at para. 50): Thus, where an attack on an order requires the consideration of factors that fall within the specific expertise of an administrativeappeal tribunal, this is a strong indication that the legislature wanted that tribunal to decide the question rather than a court of penaljurisdiction.

Conversely, where an attack on an order is based on considerations which are foreign to an administrative appeal tribunal’sexpertise or raison d’être, this suggests, although it is not conclusive in itself, that the legislature did not intend to reserve the exclusiveauthority to rule on the validity of the order to that tribunal. This analysis must be conducted in light of the specific characteristics ofeach administrative scheme. …. [66] Mr. Zucawich took the position before the application judge that, while the ERCB in Consolidated Maybrun was aspecialized tribunal, that was not the case in this matter.

He argued that the municipal council is composed of elected officials, whoseexpertise would relate to politics and governance, but not to dealing with appeals of legal questions. [67] While the question of the expertise of a municipal council has not been considered further by the courts in the context ofthe doctrine of collateral attack, it has been considered in relation to the standard of review to be applied by the courts when reviewingdecisions from administrative tribunals, including municipal councils. (See, in particular, Nanaimo (City) v.

Rascal Trucking Ltd., 2000SCC 13 at paras. 30-33, [2000] 1 S.C.R. 342; Chamberlain v. Surrey School District No. 36, 2002 SCC 86 at paras. 9-14, [2002] 4S.C.R. 710; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 at para. 5, [2004] 1 S.C.R. 485; andLondon (City) v. RSJ Holdings Inc., 2007 SCC 29 at para. 37, [2007] 2 S.C.R. 588.) [68] The cases referred to in para. 67 herein were all dealing with the question of the standard of review or degree ofdeference to be accorded by a court when reviewing a decision of an elected body, not the question of the

interpretation and applicationof the doctrine of collateral attack. Even though the context is different, however, there is significant value in interpreting this factorconsistently, where possible, in that it promotes simplification and harmony in the law (see Nanaimo at para. 28). [69] Given that, in both cases, the council’s expertise is based on its role and jurisdiction as set out in its constituentlegislation and in comparison to that of the courts, there is no reason, in principle, why the assessment of a municipal council’s expertiseto make decisions would be different in the two situations.

Thus, I am of the view that the cases set out in para. 67 are of assistance indetermining the expertise of an elected body such as a municipal council, vis-à-vis the courts, regarding questions of law and jurisdictionwhen interpreting and applying the doctrine of collateral attack. [70] The decisions referred to in para. 67 were, for the most part, based on the Supreme Court of Canada’s decisions inU.E.S., Local 298 v. Bibeault, (SCC), [1988] 2 S.C.R. 1048, and Pushpanathan v.

Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982 at paras. 27-38, and the application of the “pragmatic and functional”approach to determining the standard of review of administrative decisions. This test has been replaced by a somewhat different methodof analysis set out in a line of cases beginning with Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, as recently explainedby this court in Manitoba v. Russell Inns Ltd. et al., 2013 MBCA 46.

It is an area of the law currently in a state of evolution. [71] On reviewing the Act, By-law and jurisprudence, it is clear that, as argued by Mr. Zucawich, a municipal council is nota specialized tribunal whose raison d’être is to hear appeals of municipal orders (that is, exercising an adjudicative function). Rather,the council is the body charged by the legislature with providing good government for its municipality and with governing themunicipality “in whatever way the council considers appropriate” (s. 3 and s. 231).

It is also clear that the municipal council has theresponsibility for determining how to provide good government to the municipality, how to provide necessary and desirable things for allor part of the municipality and how to develop and maintain a safe, viable community (s. 3).

Consequently, the council would haveexpertise in matters relating to the management and development of the municipality. [72] As a result, where a municipal council makes an adjudicative decision within its legislated jurisdiction, such as one thatrequires it to balance the interests of different groups with varied outlooks that is based on its understanding of the exigencies of the localcommunity, it will be considered to have considerable expertise. (See Chamberlain at paras. 9-10.) The degree of expertise of amunicipal council when making an adjudicative decision requiring it to interpret its constituent legislation to answer questions of law orjurisdiction is not as clear.

This is due to the recent and ongoing evolution of the law, in general, regarding administrative tribunals, andhow that will apply to a political body like a municipal council. A similar issue regarding the expertise of a political decision-maker wasraised, but not resolved, in Western Canada Wilderness Committee v. Manitoba, 2013 MBCA 11 at paras. 50-51, 288 Man.R. (2d) 216. I

have concluded that it is not necessary for me to resolve this issue in this case, for the reasons set out in para. 73. [ 73 ] As was stated in Consolidated Maybrun (at para. 50, set out in para. 65 herein), the expertise of a municipal council is only one factor to be considered, and it is not determinative. When considering the importance of the expertise of the municipal council, it is important to consider that a municipal council is specifically given an adjudicative role or function by both the Act and the By-law, that being to review administrative orders made pursuant to the Act or the By-law.

Further, this power is quite extensive, as the municipal council has the power to hold a de novo hearing and to “confirm, vary, substitute or cancel the order” which was originally made ( ss. 244(1) and (2) ). [ 74 ] Regarding the nature of the collateral attack, Mr. Zucawich challenged the validity of the clean-up order on three grounds: that the property was not unsightly; that there had been no complaint to the council regarding his property; and that his copy of the order was unsigned. He argued that these were legal questions requiring the council to interpret the Act and By-law. Consequently, Mr.

Zucawich argued that legal expertise was required to answer these questions, for which the court was better suited than the council. [ 75 ] With respect to the first complaint, the question of whether the property was unsightly raised a factual, and not a legal, issue. Making this determination would require a balancing of the interests of different groups with varied outlooks and would require an understanding of the exigencies of the local community. In this regard, the council would be “better placed to understand community concerns than the court” ( Chamberlain at para. 10 ).

The determination of whether the property was unsightly was clearly within the council’s expertise. The council would be in the best position to determine what would be considered unsightly in its own municipality and also whether its own By-law was meant to encompass the condition of properties like that of Mr. Zucawich. [ 76 ] With respect to the second complaint, that there had been no complaints to the municipality about the condition of his property, Mr. Zucawich’s lawyer abandoned this matter during the hearing, and the application judge did not consider it.

Thus, the matter was not properly before us for consideration, for the reasons set out in para. 101 herein. [ 77 ] With respect to the third complaint, that the order was unsigned, on its face, this would appear to raise an issue of law, that being whether an unsigned order made pursuant to the By-law was valid. As we have seen, the Act gives the municipal council the ability to hold a de novo hearing when undertaking a review of an order, and it has been given the jurisdiction to “confirm, vary, substitute or cancel the order” ( s. 244(2) ). Thus, had Mr.

Zucawich applied to the council for a review of the clean-up order and argued that the order was invalid because it was unsigned, the council could simply have cancelled the original order and substituted its own, signed order.

This action would clearly be within its legislated jurisdiction and such a decision, based on a factual determination that the property was unsightly, would be within its adjudicative, balancing-of-interests role, in which it has expertise. [ 78 ] However, even if this complaint were considered on the basis that it raised a question of law for which the council had no expertise, the issue of expertise is, ultimately, only one factor to be considered when determining the legislature’s intention as to which forum should decide the question (see Klippert at para. 14).

As discussed earlier, the broad language of s. 244(2) of the Act and s. 9 of the By-law indicates that the legislation intended that all challenges to a municipal order would be dealt with expeditiously by allowing the council to decide whether the original order should be confirmed, varied, substituted or cancelled.

Thus, even if the council were found to lack expertise with respect to legal questions, that would be largely irrelevant, given the legislature’s clear intention as to the appropriate forum. [ 79 ] For these reasons I would not interfere with the application judge’s conclusion regarding these complaints. The Penalty for Failing to Comply with the Clean-up Order [ 80 ] In this case, Mr. Zucawich was not charged with an offence and is not subject to either a fine or imprisonment. He is, however, subject to paying significant clean-up costs.

In my view, however, as was the case in Consolidated Maybrun and Klippert , where fines or significant costs were also possible, the potential harshness of these measures in this case does not justify a conclusion that the legislature would have approved a collateral attack when it had clearly provided for a sufficient appeal mechanism to the municipal council. [ 81 ] The application judge concluded that, while the costs were serious, that did not justify a conclusion that the legislature intended that Mr. Zucawich be entitled to collaterally attack the clean-up order in the courts. [ 82 ] Mr.

Zucawich’s position before the application judge was that this factor only dealt with a penalty on conviction, which was not applicable here because he had not been charged. [ 83 ] I would find that the application judge was correct in her

interpretation of this factor. Conclusion – Doctrine of Collateral Attack [ 84 ] The application judge concluded that she was satisfied that the Act ’s wording and purpose indicate that the legislature intended that the challenge to the validity of the clean-up order was to be decided by the council of the municipality as part of the established appeal procedure, and determined that Mr. Zucawich was precluded from attacking the validity of the clean-up order in the enforcement proceedings before her.

She, therefore, considered the legislature’s intention as to the appropriate appeal forum, as required by Consolidated Maybrun . [ 85 ] Further, she correctly considered the five applicable factors set out in Consolidated Maybrun and correctly addressed the ultimate question – which forum did the legislature intend as the appropriate forum to hear this challenge to the municipal order? In keeping with the rationale behind the doctrine of collateral attack, her judgment upholds the integrity of the administrative process as set up by the legislature, and it prevents Mr.

Zucawich from having a decision made outside the timely control of the body intended by the legislature to exercise it.

[86] In conclusion, the application judge correctly interpreted and applied the doctrine of collateral attack and did not err inrefusing to permit the collateral attack against the clean-up order. [87] For these reasons, I would find that the application judge did not commit any error of law in her

interpretation of thedoctrine of collateral attack or in applying it to the Act and By-law. Further, she did not commit any error of fact or fact and law in herapplication of the doctrine of collateral attack to the facts of this case, leading her to the conclusion that the doctrine of collateral attackapplied. In the result, Mr. Zucawich cannot attack the validity of the clean-up order. (ii) The application judge erred in issuing an order under s. 240 of the Act allowing St. Clements to enter onto the propertyand in restraining and prohibiting Mr.

Zucawich from in any way preventing or interfering with that entry. [88] The basis of this ground of appeal is that the clean-up order was invalid and, therefore, there was no basis upon whichto issue the restraining order under s. 240.

Given my finding that the application judge was correct in her application of the doctrine ofcollateral attack and in her conclusion that the clean-up order remained valid, she clearly did not err in issuing the restraining order. (iii) The application judge erred in finding the property unsightly at the time of the issuance of the order under s. 240. (iv) The application judge erred in finding the clean-up order had not been satisfied. [89] Both of these grounds of appeal relate to the condition of the property at the time of the granting of the restraining orderand can, therefore, be determined together.

The question of whether the property was unsightly within the meaning of the By-law is aquestion of mixed fact and law for which the standard of review is that of palpable and overriding error. [90] The evidence before the application judge consisted of the affidavits that had been filed, to which she referred. Therewas evidence before her on which she could come to the conclusion that the property was unsightly at the time that she issued the order,and Mr.

Zucawich has not pointed to any errors that she made in this regard. [91] Thus, I would find that the application judge did not commit any palpable and overriding error in concluding that theproperty was unsightly at the time that she made the restraining order. VIII. NEW ISSUES RAISED ON APPEAL [92] As noted in para. 3 herein, Mr. Zucawich raised two new issues at the appeal hearing, where he focussed much of hisargument on the validity of the By-law, alleging several defects that, according to him, rendered it invalid.

He argued that, because theBy-law was invalid, the clean-up order that was issued pursuant to that By-law was also invalid, with the result that the order under s.240, which was based on that clean-up order, was issued in error. [93] The second new issue raised by Mr. Zucawich was that the restraining order was unreasonable, entitling him to aremedy under s. 24(1) of the Charter. [94] These issues were raised for the first time at the appeal hearing. They were not argued by Mr. Zucawich at the hearingbefore the application judge, and they were not set out as grounds of appeal in the notice of appeal. Further, Mr.

Zucawich did not applyto amend his notice of appeal to add them as new grounds of appeal. [95] This court set out the criteria for permitting a party to raise a new issue for the first time on appeal in R. v. C.J. (1997), (MB CA), 115 Man.R. (2d) 72. Scott C.J.M., speaking for the court, stated (at paras. 4-5): The law is clear that an appellate court will only allow an issue to be raised for the first time on appeal in exceptionalcircumstances …. ….

The authorities noted above state that an issue may only be argued de novo at the appellate level when it could not have beenproperly raised [or] anticipated in the court below, and where it is clear that the relevant facts are already on the record. Neither of thesecriteria have been met in this case. [96] In Harder v. Manitoba Public Insurance Corp. et al., 2012 MBCA 101, 284 Man.R. (2d) 254, in a unanimous decision,Chartier J.A., as he then was, explained the reason for this rule (at para. 12): …. The basis for this general rule is simple. Appellate courts review decisions to correct error.

If an issue is not raised in thefirst instance, it is difficult for an appellant to argue that the decision-maker committed an error on that issue. (See also Andison v. Katz, 2012 MBCA 107 at paras. 45-46, 288 Man.R. (2d) 53.) [97] There being no lower-court decision on these issues, there is no basis upon which this court can undertake a review. There is nothing on the record to indicate that these are matters that could not have been raised before the application judge. Mr.Zucawich has not shown that any exceptional circumstances exist such that we should depart from our usual practice of refusing to hear

matters that are raised for the first time on appeal. [ 98 ] Thus, Mr. Zucawich has not persuaded me that this court should depart from its usual practice of not hearing new matters for the first time on appeal. In the result, I would decline to decide these issues. IX. OTHER ISSUES RAISED BY MR. ZUCAWICH [ 99 ] Mr. Zucawich argues that the application judge erred in not addressing the several bases upon which he alleged that the clean-up order was invalid, including that it was not signed. [ 100 ] Once the application judge determined that Mr.

Zucawich was foreclosed from challenging the validity of the clean-up order due to the doctrine of collateral attack, she was correct in stating that it was not necessary for her to address the individual reasons for which he argued that it was invalid. [ 101 ] Mr. Zucawich argues that the application judge erred in not addressing his argument that the clean-up order was invalid because there were no complaints to the municipality that his property was unsightly. The application judge noted that this position was abandoned by his lawyer during oral submissions.

Thus, this was not before her, and is not before this court. As St. Clements stated, if Mr. Zucawich is unhappy with the position taken on his behalf at the hearing, or with other aspects of his legal representation, he will have to pursue those matters in another forum. In any event, this is yet another reason for which he argues that the clean-up order was invalid, and it would not have been necessary for the application judge to consider it, given her finding regarding the doctrine of collateral attack. X. MOOTNESS [ 102 ] As set out in para. 4 herein, St.

Clements argues that the appeal has been rendered moot due to it having completed the clean-up work during the week of November 7, 2011. It takes the position that it no longer needs to enter the property, so it has no further need of the restraining order under appeal, with the result that any order made by this court would have no practical effect. [ 103 ] This issue was not raised before the application judge, so we have no reasons from her on this point. While this was also a new issue, it is different from those raised by Mr.

Zucawich because it is based on events that occurred after the application judge had given her decision and signed the restraining order. Thus, it was not an issue at the time of the hearing before her. [ 104 ] While St. Clements argues that a decision from this court regarding the validity of the clean-up order would have no practical effect, on questioning by this court, its counsel acknowledged that, although all of the clean-up work had been completed, there would, in fact, be other consequences to Mr. Zucawich if the order is determined to be valid.

Those consequences arise from s. 245(3) of the Act , which makes the person who contravenes it liable to pay the costs of any action or measures taken to remedy that contravention. In this case, if Mr. Zucawich is not successful in having the order found invalid on this appeal, he will have a debt owing to St. Clements, which would not be the case if he is successful. [ 105 ] Given that the order, if valid, will have continuing consequences for Mr. Zucawich, I would not decline to hear and determine this appeal on the basis that it is moot. XI.

DISPOSITION OF THE APPEAL [ 106 ] For the above-noted reasons, I would find that the application judge did not err in applying the doctrine of collateral attack and confirming the validity of the clean-up order. I would dismiss the appeal and confirm the application judge’s restraining order under s. 240 of the Act . [ 107 ] I would order costs of this appeal and in the court below payable by Mr. Zucawich to St. Clements. __________________________ J.A. I agree: __________________________ J.A. I agree:

__________________________ J.A.