Spring 2009 - Reynolds Mirth Richards & Farmer LLP

A N N O U N C E M E N T S
THE MUNICIPAL TEAM
We congratulate Carol Zukiwski, Atul
Omkar, and Matthew Woodley on
their admission to the Partnership of
Reynolds, Mirth, Richards & Farmer
LLP.
Carol is a member of the Municipal
Team and has considerable
administrative law experience, with
a particular emphasis on assisting
municipalities with property
assessment complaints and
appeals.
Atul is a member of the Corporate
and Finance teams and carries on
a general Corporate/Commercial
Practice.
Matt is currently in Australia pursuing
his Master’s Degree in Media Law.
Upon his return to RMRF in 2010
he will resume his practice focusing
on labour, employment and media
issues.
We welcome Stephanie Gerow.
Stephanie carries on a general
Corporate/Commercial Practice.
Her experience includes domestic
and cross-border mergers and
acquisitions, including both share
and asset purchases, commercial
real estate transactions, leasing
matters and financing, as well as
a variety of general commercial
matters.
Allan Farmer
780-497-3360
afarmer@rmrf.com
Carol Zukiwski
780-497-3350
czukiwski@rmrf.com
Nick Parker
780-497-3342
nparker@rmrf.com
Mark Hildebrand
780-497-3316
mhildebrand@rmrf.com
Sheila McNaughtan
780-497-3362
smcnaughtan@rmrf.com
Bill Barclay
780-497-3379
wbarclay@rmrf.com
Todd Shipley
780-497-3339
tshipley@rmrf.com
Slader Oviatt
780-497-3399
soviatt@rmrf.com
NEW LAW SOCIETY RULES
Randy McCreary
780-497-3348
rmccreary@rmrf.com
Alberta Lavergne
780-497-3310
alavergne@rmrf.com
Kelsey Becker-Brookes
780-497-3304
kbeckerbrookes@rmrf.com
Sean Ward
780-497-3334
sward@rmrf.com
By Bill Barclay
Doris Bonora
780-497-3370
dbonora@rmrf.com
Cherisse Killick-Dzenick
780-497-3372
ckillick @rmrf.com
Matthew Woodley
780-497-3307
mwoodley@rmrf.com
The Law Society of Alberta has adopted new rules which require lawyers to obtain certain information
from their clients. You may therefore have received a letter from us asking for confirmation of key contact
information, and identifying those persons who are authorized to provide us with instructions.
The rules themselves are a by-product of the ongoing attempts to avoid money laundering. Basically,
because Law Societies across the country have instituted these types of rules, monetary transactions
handled by lawyers are not subject to the more onerous legal requirements that would otherwise be
imposed. Similarly, public bodies, such as municipalities, and municipal organizations, are not required to
provide us with the same amount of information that is required from general clients. For instance, when
lawyers handle financial transactions on behalf of most clients, we are now required to verify the source
of funds being provided for payment to others. To do so, we must obtain positive identification from our
clients, or anyone else who is providing those funds. However, this is not required for public bodies such
as municipalities.
Nonetheless, we are required to obtain basic information from our municipal clients including the proper
name of the client, address, phone numbers and other contact information, together with the identity and
contact information of all of those individuals who are authorized to provide us with instructions.
Land Comepnsation Board........................................................................P 1
Regulation of Inter Municipal Business.....................................................P 2
Province Wide ARB Fees...........................................................................P 3
Municipal Team, New Law Society Rules, Announcements.......................P 4
By Nick Parker
By-Law
Land Compensation Board Holds
MGA Section 534 Applies to Commissions
Spring 2009
The Land Compensation Board (“LCB”) recently held that s. 534 of the Municipal Government Act
(“MGA”) applies to a Regional Services Commission (“Commission”). Although the LCB was applying s.
534 prior to its amendment in June 2007, it is clear from the LCB’s reasons that it would have made the
same ruling in respect to the current version of s. 534. Section 534 provides statutory compensation to
landowners who have suffered a loss in land value as a result of a public work or structure.
The argument of the Commission and its municipal members before the LCB was that based on rules
of statutory interpretation s. 534 does not apply to any commissions because s. 534 refers only to
municipalities and not to commissions. In addition, not only does the definition of “municipality” in the
MGA not include a “commission”, the MGA defines a “commission” and states that a commission is a
corporation. In other words, a commission is a separate legal entity from a municipality and from its
member municipalities. Simply put, if the legislature had intended s. 534 to apply to commissions it
would have used the word “commission” in s. 534 along with the word “municipality”.
Further buttressing the Commission’s statutory interpretation argument is that the MGA also states that
the Minister may make provisions of the MGA applicable to one or more commissions by simply passing
a regulation. That is, if the omission of commission from the language of s. 534 was an oversight by the
legislature, this could be remedied by simple regulation rather than a legislative amendment. However,
no such regulation had been passed applying s. 534 to any commission. Accordingly, where the language
of the statutory provisions are clear, as here, and it is also clear that the Minister has taken no steps to
use his powers to apply s. 534 to a commission, then it was argued it would be an error for the LCB to
substitute its own view of what the legislature must have intended by finding that s. 534 nevertheless
did apply to commissions. As a result, it was argued that the landowners in this case had to look to the
common law for any compensation for the effects of the public work or structure on their land values.
However, the LCB rejected these arguments. The LCB stated that to allow the municipal members of a
commission to escape liability under s. 534 in this fashion would result in “a bizarre outcome”. The LCB
further found that because s. 534 did not expressly state that it did not apply to commissions then the
section applied equally to both commissions and municipalities.
The LCB’s Order is presently under appeal to the Court of Appeal of Alberta. Ultimately, the final decision
on this issue may have important implications for both commissions and their municipal members. It
will not only clarify the scope of statutory liability for public works or structures, but will also clarify
when notice of the construction or erection of public works and structures is required to be given under
s. 534.
4
1

The Regulation of Inter-Municipal Businesses
and Extraterritoriality of Bylaws Under Section 12 of the MGA
By Nick Parker
In a recent decision, the Court of Appeal of Alberta had to consider the above issues. The case involved a business (“ATS”) in which taxi
operators would pick up passengers from stands held exclusively under contract at the Edmonton International Airport, located in Leduc
County on federal Crown land. ATS is located in, and licensed by, the City of Leduc. Due to the exclusive contract, other cab companies may
drop off passengers and pick up pre-arranged fares at the airport, but they may not wait there for casual fares.
The dropping off of passengers in Edmonton apparently caused the City no concerns. However, ATS also wanted to be able to pick up
passengers in Edmonton and take them to the airport, and began advertising this service. The City’s Chief Licence Inspector found that the
pick up service violated the provisions of an Edmonton licensing bylaw (the “Bylaw”) because ATS did not have the required City licenses. The
Inspector issued an Order, which in essence prevented ATS from brokering taxi pick up inside the City.
ATS claimed that this Order affected its business, and that as its business was located outside of Edmonton, that the Order was beyond the
City’s jurisdiction under s. 12 of the Municipal Government Act. Section 12 limits the applicability of a bylaw to within the boundaries of the
enacting municipality except (a) by agreement with another municipality, or (b) as allowed by another statute.
A majority of the Court of Appeal rejected ATS’ s. 12 argument. The majority held that the Order was not an attempt by the City to apply its
Bylaw outside Edmonton and that the Order did not have that effect. Rather, the Order merely prohibited ATS from arranging or encouraging
taxi operators and passengers to transact business within Edmonton.
The majority reasoned that the conversation that occurs upon a taxi driver picking up a passenger results in an oral contract, and that this
transaction was the carrying on of the taxi business within Edmonton. Further, it was ATS’ business “to arrange for these negotiations and
contracts to happen”, and this amounted to the carrying on of the business of a taxi broker within Edmonton. As such, it was not necessary to
consider if other activities, such as merely driving through or parking in Edmonton, might also constitute carrying on the taxi business within
Edmonton. The end result is that the City has jurisdiction under the Bylaw to make the Order, and the Order could validly apply to ATS.
Although the majority held that the Order did nothing to force Edmonton licensing onto taxi drivers or brokers operating outside of Edmonton,
they did agree with the dissenting justice that there would be logical limits to Edmonton’s efforts to enforce the Bylaw. The majority stated that
“[i]f Edmonton tried to prohibit the mere delivery of passengers into Edmonton by Order, the situation would be very different than the case
at bar”.
By contrast, the dissenting justice (Côté J.A.) could see no legal distinction between allowing the City to ban pick-ups and not allowing the
City to ban drop offs. He therefore foresaw the potential for the City to be able to “kill a brokerage business which is entirely located outside
that City, and is carrying on its management outside, and performs few if any physical acts inside the City”. He said if that were to occur and
other municipalities were to copy the City’s approach then “no one will be able to take any taxi between any point in the City of Edmonton and
the airport, in either direction” because “[i]n theory, each taxi could run to the exact boundary of its licensing municipality and then turn back”
meaning that “a 40-minute ride” “from St. Albert, Fort Saskatchewan or Sherwood Park through the City of Edmonton to the International
Airport” “might require three taxis”.
Justice Côté therefore had to consider what test should apply in discerning the limits of the extraterritorial effects that a bylaw may validly have.
He rejected “a literal physical” test that he saw the majority applying, and instead said the test should look “for the real and substantial centre
of activity or business.” He said this test was consistent with legal precedent and also made sense from a policy perspective. In applying this
test to determine which municipality could properly regulate ATS’ brokerage business, he found that ATS’ “brokerage business has far more
substantial and legitimate connections with either the City of Leduc or the County of Leduc, and the International Airport, than it does with the
City of Edmonton.”
It is noteworthy that the Court of Appeal asked that a copy of both sets of reasons be sent to the Ministers responsible for Municipal Affairs and
for Highways. Lastly, I understand that the ATS will seek leave to appeal to the Supreme Court of Canada.
Province Wide Assessment
Review Board Fees
By Carol M. Zukiwski
Effective January 1, 2009 a new regulation came into effect
that establishes the maximum amount that an Assessment Review Board (“ARB”)
can charge a property owner to file a complaint against the assessment of their property.
Subject to any regulations made by the Minister of Municipal Affairs pursuant to section 484.1 of the Municipal Government Act,
R.S.A. 2000, c. M-26 (“MGA”), a municipality has the authority to set fees payable by persons wishing to file a complaint with the ARB of the
municipality (s.481(1)). The Assessment Complaints Fee Regulation , AR 243/2008 sets out the maximum fees that the ARB can charge a person
to file a complaint, or to be involved as a party or Intervenor in an assessment complaint hearing before an ARB.
The maximum fee structure under the Regulation is as follows:
Class 1 Residential Property in respect of 3 dwellings or fewer $50
Class 1 Residential Property in respect of more than 3 dwellings $650
Class 2 Non- Residential Property $650
Class 2 Farmland $50
Class 3 Machinery and Equipment $650
A further explanation of the Classes of property for assessment purposes is found in section 297 of the MGA.
The Assessment Complaints Fee Regulation has an expiry date of December 31, 2010. The expiry date ensures that the Regulation
is reviewed for ongoing relevancy and necessity. In its December 22, 2008 News Release, Municipal Affairs indicates that the
Assessment Complaints Fee Regulation is the first step in an improved property assessment complaint and appeals system, and
that the fees allow municipalities to recover the costs of administering ARBs and ensure continued access for taxpayers.
A copy of the Assessment Complaints Fee Regulation AR243/08 can be obtained from the
Queen’s Printer.
OHS QuickFact : Client Contact Reports
By Christopher Spasoff
Workplace Health and Safety (“WHS”) will issue a Client Contact Report (“CCR”) whenever they observe a contravention of
the Occupational Health and Safety legislation, or they attend at the scene of a workplace accident. A CCR often contains
Orders, directing the employer to take certain steps or provide certain information to WHS officials. Should a municipality
fail to comply with these Orders, they almost certainly open the door to charges.
Ashley Olsen
Manager
Business Development
RMRF LLP
Phone: 780.497.3329
3200 Manulife Place
10180-101 Street
Edmonton, AB T5J 3W8
e-mail:
aolsen@rmrf.com
Notwithstanding the fact that compliance with CCR Orders is necessary, there is the ability to challenge the Orders, where
there are grounds for believing they were inappropriately issued. Such challenges must be brought within 30 days. If your
municipality is faced with responding to a CCR, make sure you evaluate your right to a challenge. In the event charges
arise out of the contravention or accident leading to the CCR, it may play a part in establishing a successful defence for
your municipality.
2
3