By COLLIN GALLANT on September 19, 2019.
cgallant@medicinehatnews.com@CollinGallant
City Hall is hoping to gather support to lobby the province to revisit legislation that led Medicine Hat to lose a recent appeal court decision.
Though a lawyer representing three condo associations in Riverside says that since the law was in force currently and during the decade-long dispute over a sewage lift station built by private developer, he expects no impact for his clients.
“It’s too late; the court has ruled on this aspect,” said Barry Miskuski of the local firm Niblock and Company.
“It’s can’t be (changed) retroactively.”
In August, the Alberta Court of Appeal reversed a lower court decision and ruled that subsurface infrastructure on the three condo sites, though installed by private developer, was a “public” utility because it serves more than one property at the expense of one.
City officials have not commented on the judgment, but on Monday, council passed an emergent motion requesting the Alberta Urban Municipalities Association ask the provincial government to examine and clarify the relevant pieces of legislation in the Municipal Government Act.
It states the ruling has potentially far-reaching implications for municipalities and the development community, and asks that the government consider specifically stating conditions of legal ownership.
“We want the government to clarify things,” said Mayor Ted Clugston on Monday in brief comments to the media. “It doesn’t necessarily mean it would be used in this case, but it could, and there’s the rest of the province. Every municipality has privately-owned infrastructure, and they’ll be affected by this.”
Council’s goal is to bring the resolution up as an emergent motion at the AUMA convention in Edmonton from Sept. 25-27.
In the court of appeal decision, a three-member panel stopped short of issuing a writ of mandamus, compelling the city to act, but unanimously ruled that the station should be considered a public utility, which, under the MGA, private entities are barred from operating. Therefore, it follows that the city should operate it and be responsible for it.
The unanimous nature of the ruling makes it difficult to further counter appeal, which would be to the Supreme Court of Canada if pursued.
Since the issue of lift station ownership first cropped up in the late 2000s, the city’s position has been that the disagreement was between the developer, Medican, and the condo owners.
That company entered creditors protection and later dissolved.
In 2012, the city utility department estimated it would cost more than $1 million to rebuild the station, which didn’t meet city standards, on public lands before the possibility of folding it into city operations.
In 2015, city council offered to cover that cost if owners of River Ridge, the Garden Homes and River Stone – all adjacent properties built by Medican, could come to joint-use agreement on maintenance on other utilities, such as pipes and sewers that cross the properties.
The recent judgment also awarded costs to the appellants. Miskuski, who acted during the lower court decision, not the appeal, told the News those discussions are ongoing.