Case involves by-law passed amid Calgary's efforts to develop Point Trotter Industrial Park
The Court of Appeal of Alberta allowed the appeal of a decision refusing to vacate an injunction preventing development beside the respondents’ land and quashing a by-law closing their access to the adjacent property.
The City of Calgary – the appellant in this case – owned and began to develop the Point Trotter Industrial Park, an industrial area in Southeast Calgary, with the city’s real estate and development services business unit (REDS) leading the development. A subdivision approval for the Point Trotter Development required the widening of 68th Street SE.
One of the respondents in this case owned land adjacent to 68th Street SE, while another respondent operated a recycling facility on that land. Vehicles would access the land and facilities from entrances on 68th Street SE.
This prompted the respondents to bring a statement of claim against the city. They requested an interim injunction seeking to prevent the expansion of 68th Street SE beside their property. The city agreed to an interim injunction order.
After the REDS got the approval for an alternative access design, the city informed the respondents via counsel that it was planning to enact a by-law to close their access to 68th Street SE, as it was allowed to do under s. 28(3) of Alberta’s Highways Development and Protection Act, 2004 (HDPA).
The city council’s infrastructure and planning committee heard from the respondents and the city’s representatives. The councillors in attendance voted 5 to 1 to recommend passage of the closure by-law. The next month, the council voted 14 to 1 to pass the by-law.
The city applied to vacate the injunction, while the respondents cross-applied to quash the by-law. The chambers judge refused to vacate the injunction and granted the respondents’ cross-application. The city appealed the judge’s decision.
The city alleged that the chambers judge erroneously found the by-law’s enactment procedurally unfair and substantively invalid. The city also argued that the judge should have vacated the injunction based on a proper application of the tri-partite test from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311.
In Westcan Recyclers Ltd v Calgary (City), 2025 ABCA 67, the Court of Appeal of Alberta allowed the appeal of the city and vacated the interlocutory injunction to which the parties agreed in the past. Upon application of the tri-partite test, the appeal court set aside the chambers judge’s order quashing the closure by-law and continuing the injunction based on reviewable errors.
First, the appeal court saw no denial of procedural fairness to the respondents. The appeal court ruled that the respondents made extensive submissions to the city’s council and infrastructure and planning committee so that their concerns would be presented and heard.
The appeal court held that the city adopted a fair procedure when enacting the by-law. Its administration gave submissions that did not mislead the council or committee about the REDS’ role, the litigation pending among the parties, and the by-law’s purpose.
The appeal court decided that evidence in this case failed to establish bias under the correct test and failed to suggest that the councillors were resistant to persuasion. The city did not create or breach the respondents’ legitimate expectation on procedure, the appeal court said. Even if such an expectation existed, the procedure here met that expectation, the appeal court added.
Next, the appeal court found the by-law substantively valid. Regardless of their terms and conditions, the subdivision and design approvals could not properly restrict or eliminate the council’s statutory authority under the HDPA, the appeal court noted. The city did not act to benefit itself as a developer instead of the public interest, the appeal court said.
The appeal court found no improper purpose in the council’s decision to enact the by-law. The appeal court deemed the decision consistent with:
The appeal court determined that the council’s and committee’s members took the respondents’ concerns into account and identified reasonable and relevant public interest reasons for passing the by-law, namely the need to ensure the flow of goods and people and to drive development in the area, as supported by the record of the administrative proceedings.
Lastly, assuming that the claim raised a serious issue for trial, the appeal court decided that the respondents failed to show that they would suffer harm that was irreparable or that would outweigh the public interest in ending the injunction.
The appeal court concluded that the balance of convenience favoured vacating the injunction, with the identifiable harm to the public interest of preventing the expansion of 68th Street SE outweighing the harm to the respondents of allowing the expansion to proceed.
