The Alberta Court of Appeal held that, pursuant to the Municipal Government Act, RSA 2000, c.M-26 (the “MGA”), it did not have jurisdiction to hear an appeal of the Alberta Court of Queen’s Bench’s decision to refuse leave to appeal.

[2016] A.J. No. 284

2016 ABCA 81

Alberta Court of Appeal

M.S. Paperney, B.K. O'Ferrall and B.L. Veldhuis JJ.A.

March 24, 2016

The City of Calgary sought to appeal a Court of Queen’s Bench decision which denied it permission to appeal a Local Assessment Review Board (LARB) decision. The City performed a property assessment of two vacant residential lots. The LARB confirmed the City’s assessment. At the time of the first LARB hearing, the City discovered an error in an assessment of the lots which resulted in a lower assessed value. No evidence was called to attempt to rectify the matter at the LARB hearing. The City issued amended assessment notices and applied the higher assessment value. The two lots were part of a group of properties owned by Resman Holdings Ltd. (“Resman”). Resman complained that the City lacked jurisdiction to issue amended assessments after the assessments had been confirmed by the LARB. The City responded that it had jurisdiction to correct assessment errors under the MGA. The LARB upheld the original assessments, noting that the City should have raised the errors during the initial hearing and that the LARB lacked jurisdiction to conduct what was essentially a re-hearing. The City unsuccessfully applied in chambers to the Court of Queen’s Bench for permission to appeal the LARB’s decision, and subsequently brought the matter before the Court of Appeal.

On appeal, the City argued that the chambers judge had mischaracterized the assessments as reassessments, not amended assessments correcting an error. Resman, supported by LARB, raised the threshold question of whether the Court of Appeal had jurisdiction to hear an appeal of a Court of Queen’s Bench decision refusing permission to appeal.

The Court of Appeal considered only whether they had jurisdiction to hear the appeal. The Court of Appeal followed the Supreme Court of Canada’s decision in Ernewein v. Canada (Minister of Employment & Immigration), [1980] 1 SCR 639, wherein Laskin CJ writing for the Court held that where leave is required, a court is “empowered to screen out those cases which it decides not to hear on any of the issues sought to be brought forward for hearing on the merits,” and that an appellate court should respect this statutory differentiation and recognize the legislative policy supporting it, which is to allow the designated intermediate appellate court to determine whether leave to appeal on the merits will be granted.

The Court of Appeal noted that under the MGA, permission to appeal is required from the Court of Queen’s Bench; accordingly, the legislature has empowered the Court of Queen’s Bench to act as a gatekeeper to screen out unnecessary appeals. For the Court of Appeal to hear an appeal from those decisions would negate the statutory purpose and result in a multiplicity of appeals. The only exception to this is where the intermediate appellate court refuses to hear the application for permission to appeal, which does not apply in this case.

The Court of Appeal considered the Alberta Rules of Court and determined that there was no right to appeal a Court of Queen’s Bench decision denying statutorily required permission to appeal in the Rules, as Rule 14.4(1) states that “except as otherwise provided, an appeal lies to the Court of Appeal from the whole or any part of a decision a Court of Queen’s Bench judge sitting in court or chambers”. The Court of Appeal held that in this case the legislature has “otherwise provided” an alternative appeal process in the MGA. Because the legislature had expressly provided that a judge of the Court of Queen’s Bench must determine whether permission to appeal should be granted, and did not provide for an appeal of such a decision to the Court of Appeal, the Court of Appeal lacked the jurisdiction to hear the appeal. The court further held that, in the event that Rule 14.4 did not apply, Rule 1.9 clearly holds that when there is a conflict between the Rules and another enactment, the other enactment prevails. As a result, the restriction on the right of appeal in the MGA prevails over the general appeal provisions in the Rules.