Case commented on: Envision Edmonton Opportunities Society v. Edmonton (City), 2011 ABQB 29
This case involved an application by the City of Edmonton to sever a question from a judicial review of the City’s decision to reject a petition by Envision, which demanded that the Edmonton City Centre Airport remain open and that the City actively promote the use of the airport. The petition was rejected by the City Clerk on the basis that it was filed outside of the time limits established in the Municipal Government Act, R.S.A. 2000, c. M-26, and that the required number of electors did not sign the petition. Envision sought mandamus to require the City to introduce a bylaw on the matter and to fix an election date to vote on the bylaw. The City sought to have the question regarding the time limit severed and heard first on the grounds that the second question (compliance with the Municipal Government Act) would require significant expense that could be avoided based on the outcome of the first question.
Since the severance application was brought after November 1, 2010, the case raised the issue of whether the new Alberta Rules of Court, Alta. Reg. 124/2010, changed the test for severance. Justice A.B. Moen held that the old test for severance – the “exceptional case” test that developed under Rule 221 of the old Alberta Rules of Court, Alta. Reg. 390/1968 – was not “simply embodied” in Rule 7.1(1)(a) of the new Rules, as counsel for both parties had contended (at para. 14). She found that new Rule 7.1(1)(a) differed significantly from old Rule 221 in setting out specific and alternate grounds for severance, which were not merely a codification of the judicial interpretation of old Rule 221 (at paras. 23-32). Further, new Rule 7.1(1)(a) must be reviewed in accordance with new Rule 1.2, a “Foundational Rule” which “signals that the court should be more willing to grant remedies with the potential to provide a more timely and cost-effective result without sacrificing fairness and justice” (at para. 48). Justice Moen found that the old test, under which severance was not readily available, was inconsistent with the new rules, which suggest a focus “on finding reasons to sever” (at para. 54, emphasis added). However, this does not mean a default to the “just and convenient” test, applied in the U.K. and in some other Canadian jurisdictions. Instead, consideration must be given to the grounds laid out in Rule 7.1(1)(a) itself, filtered through Rule 1.2. Justice Moen stated the new test as follows: If any one of the three elements from Rule 7.1(1)(a) is met — disposing of all or part of a claim, substantially shortening a trial, or saving expense– the court must then determine if severance will meet the objectives of Rule 1.2 (at para. 71). Applying this test to the facts of the case, Justice Moen found the test for severance was met, and allowed the City’s application.
David Elliott
Good to see the Court is reading and applying the new rules even if counsel did not. The Court’s application of the foundational rule is an excellent example of the application of modern and “living” purpose sections. The new rules are not a codification of the old nor a restatement of the old. The starting point for their interpretation is to read and apply them as new rules – certainly using past wisdom if it is relevant, but in the context of new rules, as Justice Moen did.
Admin
Rule 7.1 and its interpretation in Envision Edmonton Opportunities Society have been cited in the following cases:
Ponich Estate (Re), 2011 ABQB 33. Justice Veit, in concluding that severance of entitlement and quantification issues in an estate claim was “permissible, possible and preferred to the combination of the two issues” (at para. 9), stated that Rule 7.1 “is considerably broader in scope than the Rules it replaces and explicitly authorizes the granting of orders designed either to dispose of part of a claim or to save expense. Moreover, New Rule 7.1 must be interpreted in light of the foundational rules, which themselves encourage adoption of processes that will allow fair trials to be held more quickly and more cheaply: Envision Edmonton Opportunities Society” (at para. 32).
Nowicki v. Price, 2011 ABQB 133. Justice Moen, in an application to sever liability from damages issues in three actions arising out of the same automobile/bus collision, cited Rule 7.1 and her interpretation of that Rule in Envision Edmonton Opportunities Society, as authority for the following test for severance: “one must first look to Rule 7.1 and determine if the threshold was met for severance, and then look at the case as a whole to determine if the Foundational Rules for cost effectiveness and timeliness, among other things, would be met by the severance” (at para. 18).
Admin
For a decision on the merits on the first issue in this case, see Envision Edmonton Opportunities Society v. Edmonton (City), 2011 ABQB 131, where Chief Justice Wittman upheld the decision of the City Clerk that the Petition was insufficient because it was not filed in the time required by the Municipal Government Act.