Changes to the MGA regarding Mask Bylaws

[Updated March 18, 2022]

Over the past two years it has been impossible to escape the topic of masks. These little pieces of fabric or paper have been the subject of public health directives, protests, jokes, memes, and fashion debates.

During the pandemic many municipalities in Alberta have adopted mandatory mask bylaws and the Province of Alberta is looking to put a stop to it. On March 1st, 2022, Premier Jason Kenney of the UCP party of Alberta stated:

“That is why I am announcing today that Alberta’s government will introduce in the legislature, as soon as possible, amendments to the Municipal Government Act which will remove the abilities of municipalities to impose their own separate public health restrictions.” (CBC News)

I’m not going to comment today on the merits of masks and mask mandates. Instead, I’m going to look at the other implications that such a move would have.

This new wording took the form of Bill 4. Bill 4 changes section 7 of the Municipal Government Act, which allows municipalities to pass bylaws related to “the safety, health and welfare of people…”.

Municipalities can still pass bylaws related to the safety, health and welfare of individuals, but now they need Ministerial (provincial) approval in order to pass bylaws that

(1) Require a person to wear a mask for the purpose of preventing transmission of COVID-19 or any other communicable disease; or

(2) Require a person to provide proof of vaccination against COVID-19 upon entering a premises.

These legislative amendments will not impact bylaws which only apply to property “owned or leased and operated” by a municipality.

The wording in Bill 4 contains some ambiguities. For example, municipalities will still be able to pass bylaws which apply to property which is “owned or leased and operated” by them, but what about property that is just operated by them? Outside of cities, municipalities don’t own the roadways, but they don’t lease them either, they are granted direction, control and management of this property which belongs to the Province. This could have implications for public transit systems in town, villages, rural areas, etc.

Whatever your stance is with respect to mask requirements and vaccination policies, it seems that this amendment might raise more questions than it answers, and I suspect that we haven’t heard the last of this issue.

When Receivership meets Planning

The Court of Queen’s Bench of the Province of Alberta has ruled in favour of the Town of Okotoks in an application for advice and direction brought forward by the Court-Appointed receiver of Alberta Foothills Properties Ltd., the proponent of the seven-phase Wind Walk Development Project planned for an area to the south of the Town. In his ruling, Justice Jones held that the Town of Okotoks was not stayed from adopting two proposed bylaws by the Consent Receivership Order granted in May of 2021.

The Facts

Alberta Foothills Properties Ltd. (“AFPL”) acquired land south of the Town of Okotoks with the intention of pursuing a seven—phase development called the Wind Walk Development. In June of 2017, the Town approved an area structure plan (the “ASP”) required for the purposes of the Development. In August of that year, the Town re-designated part of the property as residential and approved AFPL’s outline plan. In February of 2019, the Town approved AFPL’s subdivision plan for the development’s first phase subject to a number of conditions. AFPL attempted to sell the property in August of 2019, but failed to do so. The approval of the subdivision plan was valid for one year and was subsequently extended. Despite this extension, AFPL failed to satisfy the Town’s conditions and the subdivision plan was not extended beyond September of 2020.

In May of 2021, AFPL’s primary creditor applied to have it placed in receivership, which occurred pursuant to a Consent Receivership Order. The Receiver advised the Town of its intention to list the property for sale.

In June of 2021, the Town introduced Bylaw 20-21 (the “ASP Bylaw”) and Bylaw 19-21 (the “Land Use Bylaw”), which rescinded the ASP and rezoned the Property from residential to urban or agricultural holdings. The Receiver opposed these bylaws and applied for the advice and direction of the Court.

The Issue:

The Receiver contended that clauses 9 and 11 of the Receivership Order, which state that “All rights and remedies (including, without limitation, set-off rights) against or in respect of the Debtor, the Receiver, or affecting the Property, are hereby stayed and suspended except with the written consent of the Receiver or leave of this Court” and “No person shall accelerate, suspend, discontinue, fail to honour, alter, interfere with, repudiate, terminate or cease to perform any right, renewal right, contract, agreement, licence or permit in favour of or held by the Debtor”, respectively, prohibited the town from enacting its Bylaws as they appeared to, on plain reading, “affect” the Property.

The Town of Okotoks contended that the proposed bylaws did not “affect the property” as the Receiver proposed and that, in the event that the Court found that the bylaws affected the property, the Receivership order did not have the effect of estopping the Town from employing the powers it holds pursuant to the Municipal Government Act.

The Ruling:

The Court held that the proposed bylaws did not defeat the Receiver’s attempts to maintain the status quo surrounding the property, nor did it prejudice AFPL’s creditors by affecting any rights held by the Receiver or the value of the property.

First, the Court found that an ASP does not, in and of itself, permit the development of the Property. Rather, the ASP is a policy document that sets out proposals for future development but does not create any right to the development for the project’s proponents. As a result, the Town’s recission of the ASP did not affect any right held by the Receiver.

Second, and furthering the Court’s analysis on the recission of the ASP, it held that the proposed bylaws did not Prejudice the Receiver. Specifically, it stated that:

·         It is well established that the receiver has no greater rights than the debtor whose estate it administers;

·         The ASP did not, on its own, grant AFPL any right to the development as further approvals and permits would have been needed;

·         AFLP had not satisfied the conditions imposed by the town on the approval of the ASP, and therefore the subdivision approval that had been granted had expired;

Analysis:

This matter provided a unique and interesting opportunity to explore the intersection between the municipal and insolvency areas of law. It provided important clarification around the rights of developers seeking a Statutory Plan and maintained the established principle that a Receiver stepping into the shoes of an insolvent debtor gains no greater or stronger right than those previously held by that debtor.

In the end, the Court did not address the Town’s submissions relating to the interaction between the Court’s receivership order and the employ of the Town’s powers under the Municipal Government Act. This could be a question before the courts again in the future as, given the number of corporations under receivership in a municipality at any given time, the intersection between the stay of proceedings in an insolvency context and a municipality’s ability to govern its affairs could prove to be a sticking point in future receiverships.

Considerations in Passing Mask Bylaws

Is your municipality thinking about passing a bylaw requiring people to wear masks or face coverings to respond to the COVID-19 pandemic? If so, you aren’t alone. Here are some suggestions for things you may want to keep in mind:

1.       How far should the bylaw go? In other words, where will the bylaw require people to wear masks? Some options include requiring masks in all indoor public spaces, requiring masks in both indoor and outdoor public spaces, and requiring masks just in certain public spaces such as municipal buildings and public transit vehicles. Where you require masks will probably depend on your municipality’s unique characteristics.

2.       What exemptions will apply to the mask requirement? Some people might be unable to wear masks, such as young children, people who cannot safely put on or take off a mask on their own, and people with medical conditions that could be made worse by wearing a mask. You will want to think about what exceptions to the mask requirement you want to set out and also how these exceptions will be administered.

3.       How long with the mask bylaw be in place? We are all hoping that COVID-19 will be a temporary situation, and with luck masks will eventually no longer be needed. Will your bylaw set a specific date to reconsider, will your mask bylaw remain in force until Council decides it is no longer needed, or will your mask bylaw have built in triggers for when masks are or are not required?

We are happy to help you navigate the new challenges that municipalities are facing when it comes to mask/face covering bylaws and other issues that are coming up as we face life with COVID-19.

Court Activities Suspended

In these exceptional times, the Court of Queen’s Bench has suspended its normal sittings. This will impact applications which were set to be heard between March 16 and May 1, 2020. There will still be sittings to deal with emergency applications.

Filing deadlines will also be suspended during this time period, but be careful, this doesn’t apply to all filing deadlines. The deadlines to commence a court action will still apply.

The Court’s announcement can be accessed here: https://www.albertacourts.ca/qb/resources/announcements/covid-19-extension-of-suspension-of-sittings.

States of Local Emergency

With the COVID-19 pandemic, new phrases have been creeping into everyday conversations. A few months ago many of us had never heard the terms “social distancing” or “flatten the curve”, but now they are everywhere.

One of these phrases is “state of local emergency”. Municipalities have the power to declare a state of local emergency, and many have done so, including Calgary, Red Deer and Chestermere. But what does this really mean?

Declaring a state of local emergency is the biggest hammer a municipality has in its tool kit. A state of local emergency is declared under the Emergency Management Act.

Once a municipality has made a declaration, its powers are surprisingly broad. In addition to activating its own emergency management plans, here are just a few of the powers which are available to a municipality:

• acquire land and personal property without paying at the time;

• limit travel;

• enter and access any buildings;

• fix the price of essential supplies; and

• conscripting people to help.

Of course, the bills will eventually come due for all of these steps (and there are arbitration provisions to deal with disagreements about costs). Municipalities can borrow money to deal with emergencies, and have a bit more flexibility than with other borrowing.

The extreme nature of these powers underscores the severity of the situation that we are all now facing. We at Caron & Partners are still available and are ready to help you during these difficult times, and we hope that you are taking care and staying safe and healthy.

Big Changes in the Standard of Review

In case you were wondering how to spend the holiday season, why not curl up with a cup of hot chocolate and read the Supreme Court’s latest decisions on the standard of review?

On December 19, 2019, the Supreme Court issued its decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. You can access it here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/18078/1/document.do. This decision (and others issued with it) means big changes for the way appeals will be treated in all areas of law, including municipal law.

“Standard of review” refers to the standard courts will hold tribunals to when reviewing their decisions. Simply put, how wrong does the court have to think a tribunal is before the court will intervene? There are generally two standards, reasonableness and correctness.

Correctness is pretty straightforward: if the court would have decided the case differently, it will overturn the decision. Reasonableness is a more deferential standard. A lot of litigation has happened over the question of when to apply the reasonableness or the correctness standard.

As a starting point, courts are directed to assume that they are applying the reasonableness standard. However, there are two circumstances that would suggest that the correctness standard would apply instead.

First, there is the question of legislative intent. Did the legislature prescribe a different standard of review? If not, did the legislature give a statutory right of appeal? A statutory right of appeal has now been taken to indicate that the legislature intended that the same standards of review would apply to challenges to administrative decisions as in other appeals. I would expect some debates on this point in future cases.

Second, the integrity of the legal system (the “rule of law”) might require a correctness standard in some circumstances. These would include constitutional issues, issues of central importance to the legal system, and issues about where one type of administrative tribunal’s jurisdiction ends and another one begins.

Assuming that the reasonableness standard is going to be applied, what does this look like? In general, it is a review of the decision and the process used to reach it to determine if the decision is transparent, intelligible and justified. The decision will be considered in context, looking at the submissions, arguments and legislative provisions. The decision will also be reviewed for internal coherence.

Also, administrative tribunals should keep in mind that even though they aren’t bound by their past decisions (precedent), if they are issuing inconsistent decisions this could support a finding that their decisions are unreasonable.

This is a significant case with major implications for a lot of areas of law. In the municipal context, this could impact challenges to SDABs, ARBs, and the like. Stay tuned for more commentary as we all have time to really digest this case.

Demystifying the Court of Appeal

Municipal cases often go to the Court of Appeal, especially cases relating to subdivision and development. Have you ever wondered what happens at the Court of Appeal? Your chance is coming.

Starting on December 16, 2019, the Alberta Court of Appeal will be livestreaming its three-day haring about the constitutionality of the carbon tax. This isn’t a municipal law case (although it is interesting in its own right), but it will give you a chance to see what a Court of Appeal process looks like without actually visiting the Court.

Several news organizations are going to pick up the livestream. For example, CBC will be showing it here: https://www.cbc.ca/news/canada/alberta-court-of-appeal-hears-carbon-tax-reference-case-live-1.5369341.

The Line Between Municipal Utilities and Condo Utilities

On August 1, 2019, the Alberta Court of Appeal issued its decision in Condo Corporation No. 0410106 v Medicine Hat (City), 2019 ABCA 294. This decision drew, and possibly changed, the line between utility infrastructure owned and operated by condominium corporations and such infrastructure owned and operated by municipalities.

The Court stated that, based on the Municipal Government Act’s treatment of main lines and service connections, utility infrastructure that services any parcel of land outside of the condo plan area is the responsibility of the municipality to manage, not the condo corporation. This rule will apply regardless of whether the utility infrastructure is on private or public land, and regardless of whether the utility infrastructure meets the municipality’s standards.

There could be implications for both municipalities and condo corporations with this ruling. Extra care should be taken when considering a condo servicing strategy that involves the condo’s infrastructure providing services to any parcels of land outside of the condo plan area.

For more information, the Court’s original decision is available here: https://www.canlii.org/en/ab/abca/doc/2019/2019abca294/2019abca294.pdf.

City Charters

On April 4, 2018, City Charters were adopted by Order in Council for Calgary and Edmonton. These Charters modify a number of clauses in the Municipal Government Act as they apply to those two municipalities, as well as adding many new clauses.

The City Charters can be viewed here:

• Calgary:

http://www.qp.alberta.ca/documents/orders/Orders_in_Council/2018/418/2018_082.pdf

• Edmonton: 

http://www.qp.alberta.ca/documents/orders/Orders_in_Council/2018/418/2018_081.pdf

Costs in Appeals of SDAB Decisions (Liquor Stores Limited Partnership v Edmonton (City), 2018 ABCA 34)

On January 26th, 2018, the Alberta Court of Appeal issued Liquor Stores Limited Partnership v Edmonton (City), 2018 ABCA 34.

That case considered costs in an appeal of a decision by Edmonton’s Subdivision and Development Appeal Board (SDAB). This type of appeal is a two-step process: first permission to appeal must be granted, and then the appeal itself is heard. In this case, permission to appeal had been granted but the appeal was ultimately unsuccessful.

The Court awarded costs for both the permission application and the appeal itself. The general rule is that the winner of an application is awarded costs. This case was different, because the respondent was unsuccessful in the permission application but still was awarded costs for it. The Court did this based on the finding that the permission application is a key step in the appeal process.

The Court also awarded costs based on Column 2 rates. Usually, in this type of appeal, the lower Column 1 rates are used. The Court strayed from this because the appeal involved important issues (who operates liquor stores in Edmonton and the surrounding area). The respondent argued that there should also be higher costs because of delays in the appeal process. The Court did not reject such an argument in principle, but did not base its decision to award higher costs in this case because there was no evidence of undue delays.

What does this mean for those involved in challenges to SDAB decisions?

1.    Success in a permission to appeal application doesn’t protect an appellant from having costs awarded against him or her for that application. Also, the Court is willing to award higher cost rates than the minimum in the right circumstances. This is one more factor to take into account when weighing the risks and benefits of appealing a SDAB’s decision.

2.    While it didn’t do so in this case, the Court has expressed willingness to award higher levels of costs in cases marked by delay. An appellant should be careful to move the appeal forward with reasonable speed, taking into consideration the timelines set out in the Rules of Court.

The full text of the Alberta Court of Appeal’s decision is available on CanLII.org.