By COLLIN GALLANT on October 9, 2019.
The City of Medicine Hat has asked the Supreme Court of Canada to hear the issue of a contentious sewer lift station after it lost the most recent court action in the decade-old dispute this summer.
The station at River Ridge Condo complex services four nearby other parcels that were developed subsequently, a situation the owners say is costing them money and contrary to utility sections of the Alberta Municipal Government Act.
This summer the Alberta Court of Appeals agreed, reversed a lower court ruling and declared the station the city’s responsibility.
On Sept. 30, lawyers on behalf of the city applied for the case to be considered for review by the top court.
The application, described by the legal terms “leave to appeal” does not mean the case will necessarily be heard.
The Supreme Court of Canada accepts and agrees to hear only a small fraction of applications it receives, with cases based on merit or gravity of the legal issue involved.
If the case is taken up by the court, it would be the first case involving the city to be accepted and heard by the Supreme Court since 1979.
The Supreme Court’s record office confirmed to the News on Tuesday that the city had filed an application for leave to appeal on Sept. 30 – the final day of a 60-day deadline to appeal the Aug. 1 decision.
It does not yet have a file number attached and therefore does not yet appear in the court’s public registry.
The city has not made any public statement about the previous ruling or the move to appeal it, but council did pass a motion asking for the Alberta Urban Municipalities to support a provincial review of the legislation, stating the decision would have wide-reaching effects on municipalities and land development throughout Alberta.
Lawyers for the condo association declined comment but said it was likely the group would “strongly oppose” the case going forward.
A spokesperson for the River Ridge Deep Utilities Committee, made up of representatives from several of the relevant condo boards, said the matter would be discussed at an upcoming meeting.
The issue stems to the development of a parcel of land in western Riverside in the early 2000s by Medican Developments. It portioned the land into five properties that were developed over several years.
The utilities plan was to have the developer operate the lift station that serviced all the properties with lines that ran under portions of others, though they became legally separate entities when they became condominium corporations and sold to unit owners.
River Ridge Association discovered in 2005 that since the lift station was on its property, it was legally responsible, but no joint-use agreement was in place to cover costs or maintenance.
Medican was forced in court to take over operations, though the company entered court creditor proceedings then went out of business.
The late 2018 Alberta Court of Queens Bench ruling stated that while the condo owners may have had a case against the developer, the situation was not the city’s making or responsibility.
The condo association appealed and won a unanimous decision from a panel of three judges based on the definition of public utilities.
Typically “public utilities” are operated on public property or rights of way up to the private property line.
In the local case, such connection points run across private property before reaching the final customer’s property.
The court of appeal stated that it met the definition in the Municipal Government Act, which forbids private firms or individuals from operating public utilities, and therefore makes the system the city’s responsibility.
City council also requested that its lobbying group, the Alberta Urban Municipalities Association, study the issue and potential impacts of the decision, and lobby the provincial government to “clarify” relevant portions of the act pertaining to defining public and private responsibilities in utility systems.
That emergent motion was accepted and approved at the AUMA convention in late September.
In 1979, the City of Medicine Hat succeeded in having overturned an Alberta Supreme Court judgment regarding its ability to place restrictions on who could register as a contractor as it awarded lots for new home construction in a lottery system.
Previous to that, in the mid-1960s a Southeast Hill resident applied to the Supreme Court for relief after he blamed an injury from a fall on an icy sidewalk on the city’s operation of a drainage sewer. It’s not immediately clear if the court heard that case.
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