Court of Appeal Decision of the Week

Civil Procedure/Municipal Law: Stay Applications Preceding Permission to Appeal

Case: 360Ads Inc v Okotoks (Town), 2018 ABCA 319 (CanLII)

Keywords: Signs; Stay Application; Alberta Rules of Court, Alta Reg 124/2010

Synopsis:

The Town of Okotoks enacts a land use bylaw controlling the use and development of municipal lands. Pursuant to this bylaw, an order requires the Applicant, 360Ads Inc., to remove signs it has placed on trailers on lands along Highway 7 on the south side of metro Okotoks. The Applicant does not own the lands “to whom the stop order is directed”, but does own the trailers which bear the advertising signs. The Applicant files an application for permission to appeal. In the meantime, the Applicant seeks a stay of the enforcement with respect to a stop order.

The Court of Appeal refuses to grant the stay.

Importance:

Citing Lafarge Canada Inc v Lac Ste Anne (County) Subdivision and Development Appeal Board, 2016 ABCA 50 (CanLII) and RJR – MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385, the Court of Appeal noted that a stay is sometimes available before and after leave to appeal, or, as in this case, permission to appeal is granted:

The Supreme Court came to this conclusion on the basis that it needed the power in order to achieve the purpose of preventing prejudice pending resolution of the leave application by the court. However, since this issue was not argued before me, I leave it to others to resolve should the issue ever arise. (See para. 4).

For future reference, the Court of Appeal indicates that jurisdiction may be found in the following rules of the Alberta Rules of Court:

  • Rule 1.4(2)(h); and
  • Rule 14.48.

However, the Court stopped short of confirming whether a single judge of the Court of Appeal has jurisdiction to grant the stay before permission to appeal has been granted. (See para. 4).

The Court recited the “well-known three-part test” for stays as set out in RJR-MacDonald. To grant a stay, the following must be shown:

  1. a serious issue to be decided;
  2. irreparable harm to the applicant if the stay is not granted; and
  3. a balance of convenience favouring the granting of the stay. (See para. 5).

Notwithstanding the fact the Applicant “posited 10 grounds of appeal”, the Court was “unable to determine whether there is a serious issue to be tried on appeal”. (See para. 9).

With respect to irreparable harm, the Court of Appeal was “prepared to accept” the Applicant would suffer at least some financial losses, but noted the Applicant had time to adjust:

To establish irreparable harm, the applicant posited losses it says it will incur up until a projected resolution of this appeal in 2020. My view is that between now and then the applicant will have had plenty of time to make adjustments to its business in order to replace some of the income stream it says it will lose. (See para. 10).

Finally, as regards the balance of convenience and public interest considerations, the Court of Appeal pointed out that, since the Respondent in this case was a governmental authority discharging its responsibility pursuant to the Municipal Government Act, RSA 2000, c M-26, its doing so was presumably in the public interest. As such, the Applicant was responsible to “…offset those presumed public interest considerations by demonstrating a more compelling public or private interest in staying the municipality’s actions.” (See para. 14). For the Court of Appeal, the Applicant failed to do so.

In arriving at this conclusion, the Court noted as follows with respect to the application of Okotoks’ land use bylaws:

As an aside, a competitor of 360Ads on lands directly adjacent to the lands in question removed its offending advertisements in response to the municipality’s direction. To grant a stay to 360Ads may give it an unfair competitive advantage. Any such advantage would have a negative public interest aspect to it as well. (See para. 15).

Counsel for the Applicant: Brad Findlater (James McCall Panunto, Calgary)

Counsel for the Respondent Town of Okotoks: Gregory Plester (Brownlee LLP, Calgary)

Counsel for the Respondent Subdivision and Appeal Board of the Town of Okotoks: Jennifer Sykes (Caron & Partners LLP, Calgary)

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Posted: Wednesday, October 03, 2018