Judicial Review – Moot
In this decision, the Alberta Court of Queen’s Bench (“ABQB”) dismissed an application for judicial review from The Edmonton River Valley Conservation Coalition Society (the “Society”), claiming that the Edmonton City Council did not exercise its authority properly when it amended Bylaw 18889 and Bylaw 18890.
The matter concerned an Alberta Utilities Commission (“AUC”) approved solar power plant. EPCOR Utilities Inc. (“EPCOR”), through its subsidiary, EPCOR Water Services Inc., wanted to construct the power plant on approximately 54 acres of land it owns adjacent to the E. L. Smith water treatment plant.
In 2020, the Council of the City of Edmonton (“City Council”) conducted public hearings on proposed changes to the North Saskatchewan River Area Redevelopment Plan. Following these hearings, the City Council approved the amendment of the North Saskatchewan River Area Redevelopment Plan as well as amendments to land-use bylaws resulting in the rezoning of the property to also allow for the use of the land as a solar farm.
The Society sought to have the bylaws quashed. The Society argued that City Council had made errors by not passing a resolution deeming the relevant land essential and by improperly weighing the financial costs, social and environmental, and institutional constraints. The Society contended that the amendments to the bylaws were contrary to the River Valley Redevelopment Act.
EPCOR submitted that the Society did not have standing as it did not have the required public interest standing to bring the application. The ABQB found that the Society does not have a direct or equitable interest in the matter. The ABQB noted that the Society is concerned with the use and preservation of the North Saskatchewan River Valley in Edmonton and considered whether this gives it a public interest standing in the matter.
The ABQB applied the three-part test established by the Supreme Court of Canada in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, (“Downtown Eastside”) to determine if the Society has public interest standing.
The ABQB found that there is a serious and justiciable issue to be addressed and that the Society, as the party in question, has a genuine interest in the outcome. The first two questions of the test were therefore answered in the affirmative.
Is the Action a Reasonable and Effective Way to Bring the Matter Before the Court?
To answer this question, the ABQB took a purposive approach to the analysis, as prescribed in Downtown Eastside.
EPCOR argued that it would have been appropriate for the Society to appeal the development permit for the solar project as set out in the Municipal Government Act. The ABQB, however, found that the Municipal Government Act does not contain provisions for appealing the decision from City Council to enact a bylaw. Accordingly, a judicial review application was the only way to bring the matter before the ABQB. The ABQB consequently held that the Society had standing.
Is the Matter Moot?
EPCOR submitted that the application ought not to proceed because the outcome is moot. EPCOR argued that, under s. 619 of the Municipal Government Act, coupled with the AUC’s approval of the solar power plant, the City Council was forced to approve the rezoning application in order to facilitate the building of the project.
The ABQB noted that the AUC’s decision was silent on whether or not the City Council’s approval was required. The Court further noted that there was no doubt that the AUC was aware of the location of the proposed solar farm. The AUC was also aware that rezoning would be required. The ABQB held that the only conclusion that could be reached upon a reading of the AUC’s decision and the approvals issued in conjunction therewith, is that the AUC approved construction of the solar power plant at the designated location in the River Valley. The ABQB continued to find that the AUC did not delegate any authority to City Council. For the ABQB to find otherwise or impose a different conclusion would defeat the purpose of section 619 of the Municipal Government Act. As a result, the ABQB determined that the application was moot.
The ABQB noted that, even if the matter had not been moot, the application would have been denied. In oral submissions, counsel for the Society agreed that the solar farm is not a “major public facility”, to which the bylaws apply.
The standard of review, in this case, would have been reasonableness. The ABQB found it clear that there were many possible ways to construe the term “major public facility”. The proposed power plant would however be fenced, and the public would not have a general right of access to the plant. No direct city funds would be used to construct the power plant. The ABQB determined it was reasonable for City Council to decide the solar plant was not a major public facility.
The ABQB determined that the Society’s application for an order to quash Bylaw 18889 and Bylaw 18890 should be dismissed.