Permission to Appeal – Dismissed
In this decision, the Alberta Court of Appeal (the “ABCA”) considered the Town of Coaldale (“Coaldale”)’s application for permission to appeal the AUC’s decision rendered on August 24, 2018 (the “AUC Decision”). The AUC Decision concluded that certain water, drainage, and sewer service charges levied by Coaldale did not conform to Coaldale’s public utility rate structure and were improperly imposed.
The ABCA dismissed the application for permission to appeal.
Background
Doug Shields, Nadine Britz, and Eleanor Britz (the “Complainants”) operated a residential property in Coaldale as a partnership. Eleanor Britz is the registered owner of the property. Although the property is zoned as single-family residential, the Complainants rent out four suites on the property to tenants. The property is therefore noncompliant, which the Complainants conceded before the AUC. While the property has only one water line and one sewer line, Coaldale has historically assessed four flat monthly service fees for water, drainage, and sewage. Effectively, Coaldale charged service fees to the property as if it consisted of four individual units. Coaldale transferred unpaid utility service amounts to the tax roll every three months for the property pursuant to section 553(1)(b) of the Municipal Government Act (“MGA”), which provides that
“[a] council may add… to the tax roll… unpaid charges… for a municipality utility services provided to the parcel by a municipal public utility that are owing by the owner of that parcel.”
The Complainants initiated an appeal under section 43(2) of the MGA challenging service charges applied to the property since Eleanor Britz purchased it in 2010.
Before the AUC, Coaldale argued that its approach struck a compromise that avoided forcing property owners to renovate noncompliant properties and bring them into compliance. Coaldale also submitted that the AUC did not have jurisdiction to review taxes, and therefore acted outside of its jurisdiction in reversing the charges assessed to Ms. Britz’s property.
The AUC allowed the complaint in part, reversing the water, drainage, and sewer service charges applied by Coaldale within two years of the application. The AUC concluded that it was only appropriate for Coaldale to assess one flat fee for water, drainage, and sewer service, as Coaldale’s bylaws did not contemplate a different rate scheme for noncompliant properties.
Grounds of Appeal
Coaldale’s application raised three proposed grounds of appeal:
(a) Did the AUC act outside of its jurisdiction when it ordered the repayment of unpaid municipal utility service amounts that had been transferred to the municipal tax roll?
(b) Did the AUC err in law when it failed to consider Coaldale’s broad powers under section 9 of the MGA to interpret its own bylaws and that Coaldale properly exercised such powers when it applied its own bylaws to this non-conforming property?
(c) Did the AUC err in law when it failed to request evidence and ignored evidence regarding the standing of the Complainants to bring the complaint?
Permission to Appeal
This appeal was before the ABCA pursuant to section 29 of the Alberta Utilities Commission Act (“AUCA”). The ABCA considered the test for permission to appeal and indicated that granting leave to appeal requires consideration of the following factors:
(a) whether the issue is of significance to the practice;
(b) whether the issue is of significance to the action;
(c) whether the appeal is prima facie meritorious;
(d) whether the appeal will unduly hinder the progress of the action; and
(e) the appellate standard of review that would apply if leave was granted.
Findings
The ABCA dismissed Coaldale’s application for permission to appeal on the latter two proposed grounds of appeal, which the ABCA found both involved questions of mixed fact and law. As a result, the ABCA found that these grounds did not disclose issues of law that were of sufficient importance to warrant further appeal.
Section 43 of the MGA states that a person who uses, receives or pays for a municipal utility service may appeal a service charge, rate, or toll made in respect of it to the AUC. Section 553(1)(b) provides that municipalities can add unpaid utility service charges to the tax roll for a parcel of land. Section 553(2) of the MGA provides that amounts added are for all purposes to be a tax imposed under the property taxation provisions of the MGA.
The ABCA found that while section 553 of the MGA permitted the charges to be recovered as a tax, that provision did not preclude the AUC’s statutory authority to review and vary utility charges.
The ABCA found that the appeal was not sufficiently meritorious under either the reasonableness or correctness standard to justify granting permission to appeal. For the purpose of this application, the ABCA determined that it was not necessary to determine which standard of review would be applied, should permission to appeal be granted.
Accordingly, Coaldale’s application for permission to appeal was dismissed.
