CASUAL LEGAL: Reasonableness is in the Eyes of the Beholder: Council’s Power to Pass Municipal Bylaws

Reasonableness is in the Eyes of the Beholder: Council’s Power to Pass Municipal Bylaws  

By Sander M. Lekas

Reynolds Mirth Richards Farmer LLP

Alberta Municipalities Casual Legal Service Provider

Section 539 of the Municipal Government Act states that “no bylaw or resolution may be challenged on the ground that it is unreasonable”. In 2012, the Supreme Court of Canada in Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 affirmed that, in the context of municipal bylaws, “reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable” and that the courts will not “overturn municipal bylaws unless they are found to be ‘aberrant, ‘overwhelming’, or if ‘no reasonable body’ could have adopted them”.

Recently, the Alberta Court of Appeal considered whether four municipal bylaws relating to land redesignation should be struck down. In this case, four developers had applied for land use redesignations and an expansion in order to facilitate the development of gravel extraction facilities. Despite the County’s municipal development plan (the “County Plan”) requiring each application for redesignation to include a Master Site Development Plan (“MSDP”), the bylaws were passed to facilitate the developments notwithstanding the MSDAs had not yet been approved by council. Instead, council passed motions directing administration to collaborate with the developers to revise the MSDPs for later approval.

Each of the four bylaws were challenged as unreasonable on judicial review by an adjacent landowner, largely on the basis the MSDPs were not approved prior to passage of the bylaws. At first instance, the chambers judge set aside each of the bylaws, concluding the MSDPs provided by the developers were deficient and failed to consider cumulative aspects of extraction in the area. In doing so, the Chambers Judge reasoned that passing the bylaws undermined the overarching purposes of the County Plan.

The Alberta Court of Appeal overturned the lower court’s decision, concluding as follows:

• 41 The respondents were aware the Master Site Development Plans needed to be addressed collaboratively with the County's administration for multiple improvements; this occurred. The sequence of events did not prejudice the respondents. We decline to quash the bylaws on this basis, leaving open for another day the question whether similar sequencing in a different factual matrix might underpin prejudice.
• 42 It is not the role of this Court to weigh the policy choices or social, economic, or political factors that were before council.
• 43 We conclude the decisions of [Council] were transparent, intelligible and justified. Despite what a given judge or court may envision as being in the best interests of the County, the bylaws cannot be challenged on the ground of unreasonableness.

In short, the actions of the County were reasonable and justified in the circumstances, despite non-compliance with its own County Plan. The Courts continue to affirm their trust in elected officials, as the individuals with the direct knowledge of underlying circumstances and stakeholders, to make decisions in the best interest of their electors.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or email casuallegal [at] abmunis.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca, or call 310-MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.\

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.