Judicial review may not be utilized where an adequate alternative remedy, such as a statutory right of appeal, has not been exhausted prior to judicial review proceedings being taken

22. December 2015 0

Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – By-laws – Nuisance – Continuing contravention – Extension of time – Appeals – Remedies – Alternative remedies – Judicial review – Delay – Limitation of actions

Moyer v. Corman Park No. 344 (Rural Municipality), [2015] S.J. No. 513, 2015 SKQB 281, Saskatchewan Court of Queen’s Bench, September 15, 2015, R.W. Danyliuk J.

Residents of the defendant rural municipality (the “Moyers”) had been the subject of various proceedings by the municipality to clean up their land. The Moyers had occupied the subject property within the rural municipality for a long time and there had been concern over the state of repair and items stored on that property. In the summer of 2014, a rural municipality bylaw inspector inspected the property pursuant to the Abatement of Nuisances Bylaw 26/13.  A contravention of the bylaw was issued in July of 2014 providing that all building items and other materials be stored appropriately or removed and that the number of junk vehicles be reduced to six or less. A deadline for compliance for the order was set for September 1, 2014.

An statutory appeal was available under s.365(1) of the The Municipalities Act, which would allow the Moyers to bring an appeal to their municipality’s council. The Moyers launched that appeal but rather than asking to overturn the remedy, simply requested more time for compliance. The municipality’s council allowed the appeal and granted an extention for completion of the clean-up work to March 31, 2015.

There was no application for judicial review of council’s decision to extend the deadline, nor any appeal taken from that decision.

In May 2015, municipality officials inspected the property again. The property continued to be in violation of the Nuisance Abatement byaw and therefore a notice of noncompliance was sent to Ms. Moyer as owner of the property. The municipality advised that it would secure contractors to complete the work and have them on the site by July 6, 2015.

On June 1, 2015 the Moyers wrote to the municipality requesting an extension. The request for an extention was denied and communicated by letter to the Moyers’ counsel. Moyers’ counsel then indicated an intention to bring a judicial review application and the municipality indicated it would not proceed further until that question was determined.

The court considered whether the plaintiff had an adequate alternative remedy making judicial review unavailable. Judicial review may not be utilized where an adequate alternative remedy, such as a statutory right of appeal, has not been exhausted prior to judicial review proceedings being taken.

In this instance, there were other remedies under the Municipalities Act. Some of those remedies were followed by the applicants, but not to their full extent. While an order to remedy was issued and an appeal was brought to the council under the Act, a time extension was granted but the applicants did not exercise any further right of appeal on a question of law or jurisdiction within the 30 days that were permitted under the Act.

There were arguments that could have been made that the council’s decision was made ultra vires and these could have been raised on the statutory appeal. Instead, a chambers application was made a year after the council’s decision was made, well out of time for statutory appeal.

Such a delay on this type of application can be a serious factor on a consideration of the merits.

While there are cases where a court can entertain a judicial review application prior to the exhaustion of other remedies, those cases are an exception. In this case, the applicants had an adequate alternative remedy in the form of a statutory appeal. There was no statutory requirement that the municipal council notify the applicants of their further right of appeal, and Mr. Moyer’s statement that he was unaware of his statutory right was of no assistance; the applicants were taken to know the law.

There were no exceptional circumstances to justify entertaining an application for judicial review. Statutory appeal was convenient and readily available to the applicants, and the significant delay involved was not explained.

The application was dismissed.

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