In Wood Buffalo (Regional Municipality) v Malcolm, the Alberta Court confirmed that constitutional arguments can be raised in court as a permissible collateral attack if the administrative body lacks jurisdiction over such questions. However, the court rejected Malcolm's constitutional challenge due to insufficient evidence and upheld the original order under the Safety Codes Act, mandating the removal of his cottage. This case underscores the importance of following proper legal procedures and ensuring that constitutional questions are well-supported when brought before the court.
The Safety Codes Actexists to ensure that all construction within the province must m eet certain prescribed safety requirements. If an order is issued under the Act, there is an existing appeal mechanism to the Safety Codes Council. But what if a party wishes to raise a constitutional argument about an order under the Act? Is that considered a collateral attack on the order? And if the offending party refuses to follow the order, can the Court grant its own Order mandating compliance?
Background
John Malcolm built a wooden cottage in Fort McMurray located on the Snye Dike Causeway. He received an order under the Safety Codes Act ("the Act") ordering him to remove this cottage. The order cited section 49 of the Act, which concerns situations in which a Safety Codes Officer believes the Act is contravened or the construction poses a danger of serious injury or damage to people or property.
Malcolm did not challenge the order using any of the processes set out in the Act, nor did he comply with the order itself. The matter eventually came before the Court, first by the Regional Municipality of Wood Buffalo seeking a Court Order requiring Malcolm to comply with the original order he was issued, and then by Malcolm filing a Notice of Constitutional Question to notify the Court he intended to raise constitutional arguments in defense of his conduct. In essence, Malcolm argued that because his cottage was located on a causeway over a river, the federal government (having jurisdiction over navigable waters), properly had jurisdiction over the area of his cottage.
The Alberta Court of King's Bench had to consider whether Malcolm's constitutional arguments constituted a "collateral attack" on the order, and whether the notice he provided of his Notice of Constitutional Question was adequate. The Court also considered whether the cottage was subject to the Act and if an order requiring Malcolm's compliance should be issued.
What the Court Said
The doctrine of collateral attack applies to administrative or court proceedings, and describes challenging a previous decision by way of a new case, as opposed to a direct appeal. The Supreme Court has previously held that if legislation provides for a specific forum to hear the issue in question, then issues should be raised there.
Challenging administrative orders is a delicate balance. The Supreme Court has emphasized the need to both respect the administrative state and the procedures explicitly set up by the legislature, but also to enforce the rule of law and allow individuals to bring their concerns regarding government action to the courts' attention.
The Court noted that an "administrative decision-maker only has jurisdiction to decide a constitutional question if it has been given that jurisdiction" by the governing legislation. The Court concluded that, in this case, it was clear that "neither the Administrators nor the Safety Codes Council [could] hear the constitutional arguments". Therefore, the only way Malcolm had to effectively challenge the constitutionality of the potential order was through the judicial system – making the application a permissible collateral attack. While the Act contained an appeal mechanism, that appeal would not allow a constitutional argument of the kind Malcolm advanced in Court.
Although Malcolm's constitutional arguments were a permissible collateral attack, they rejected them. The Court was dissatisfied with the supporting evidence. When a party fails to provide sufficient details and particulars in a Notice of Constitutional Question, the law is clear: the courts must decline considering the constitutional questions altogether.
Therefore, the Court concluded that Malcolm failed to comply with the original order he was issued. As a result, the Court issued an order pursuant to s. 57 of the Act, requiring Malcolm to comply with the Order.
Takeaways
As we often see in cases involving an assessment of administrative procedures, courts are apprehensive to hear cases that may best be resolved in the administrative context. However, individuals wishing to bring their concerns about government action to the courts do have options in doing so.
Parties wishing to raise administrative issues in court must refer to the legislation giving rise to the administrative process in question: what did the legislature intend for these bodies to hear? Were they given jurisdiction to hear constitutional questions? If not, the matter may be diverted to the courts.
Further, when raising constitutional questions, this decision illuminates what the Court wants a Notice of Constitutional Question to contain – namely, sufficient particulars in support of each question. Parties should ensure that their arguments are well-researched and thought-out.
This decision also confirms that if a person fails to follow an order under the Act, the body issuing the order can obtain a Court Order requiring compliance. At that stage, failing to follow a Court Order could lead to contempt relief as against the offending person.
Given the complexities of the Safety Codes Act and its application, it is always advisable to consult a lawyer. Contact Anthony Burden in Calgary, Ryan Krushelnitzky in Edmonton, or any member of Field Law's Construction Group for assistance.
Link to decision: Wood Buffalo (Regional Municipality) v Malcolm, 2024 ABKB 297
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.