Executive Summary: Key Legal and Evidentiary Issues

• Conflict arose over the City of Calgary’s redesign of 68th Street SE, which Westcan claimed would obstruct access to its scrap metal business.

• Westcan challenged the City’s closure bylaw and sought to maintain access through an interlocutory injunction.

• The chambers judge quashed the bylaw and upheld the injunction, but the Alberta Court of Appeal reversed both decisions.

• Central legal issue involved whether municipalities must distinguish between statutory powers and natural person powers when acting with commercial motives.

• A stay was sought to prevent road changes from rendering Westcan’s appeal to the Supreme Court moot.

• The Court granted a stay, finding the appeal could be nugatory without it and the balance of convenience favored Westcan.

Facts and procedural background

Westcan Recyclers Ltd. and 664078 Alberta Ltd. (collectively, “Westcan”) own and operate a scrap metal recycling business on land adjacent to 68th Street SE in Calgary. The City of Calgary, through its Real Estate and Development Services unit (REDS), owns nearby land being developed into an industrial park. As part of the development approval process, the City was required to upgrade 68th Street into a four-lane divided road at its own expense.

Westcan objected to the road redesign, claiming it would interfere with access to and from its site in a way that could threaten the business's viability. The dispute escalated into litigation in 2021. Westcan filed a statement of claim and obtained a temporary injunction preventing the City from interfering with its existing access points. This injunction was extended by consent and remained in effect as of April 2022.

Subsequently, the City enacted a bylaw closing Westcan’s direct access to 68th Street and offering alternate access through 86th Avenue and 90th Avenue. The City issued a temporary permit allowing continued use of the existing access points until further notice.

Trial court ruling

Westcan brought an application for judicial review of the closure bylaw, and the City applied to vacate the injunction. In Westcan Recyclers Ltd v Calgary (City), 2023 ABKB 442, the chambers judge quashed the bylaw and upheld the injunction. The judge found that Westcan had met its burden to show that the road redesign would disrupt operations, require relocating materials, and alter the site. The decision also noted that use of alternate access points would require regrading the site and could involve off-site relocation of materials.

Appellate decision and policy discussion

In Westcan Recyclers Ltd v Calgary (City), 2025 ABCA 67, the Alberta Court of Appeal (majority) allowed the City’s appeal, setting aside the chambers judge’s orders. The Court upheld the closure bylaw and vacated the injunction. It found that the chambers judge made reviewable errors, particularly in assessing harm and not considering the potential for compensation under the Highways Development and Protection Act (HDPA). The majority held that any harms to Westcan were likely compensable in damages.

The case also raised broader legal questions. Westcan argued that the City acted in bad faith and failed to ensure procedural fairness by using regulatory powers to achieve commercial ends. The proposed appeal to the Supreme Court raised the question of whether municipalities must distinguish between actions taken under statutory authority and those under natural person powers, particularly where their commercial interests are involved.

Stay pending Supreme Court leave application

In 2025 ABCA 144, Westcan applied for a stay of the appellate ruling pending a leave application to the Supreme Court of Canada. Justice Ho granted the stay, applying the RJR MacDonald test: (1) serious issue; (2) risk of irreparable harm; and (3) balance of convenience. The Court accepted that the appeal raised serious legal questions, that road construction could render the appeal nugatory, and that the balance of convenience—considering the public interest and City’s construction timeline—favored granting the stay.

Westcan had not received the City’s two months’ formal notice to close the access points, but the permit allowing continued access was revocable on ten days’ notice. The City indicated a desire to complete the roadwork during the 2025 construction season, but could not confirm its specific timing. Given this uncertainty and potential disruption to Westcan’s business, the stay was deemed just and equitable.

Costs ruling

In 2025 ABCA 215, the Court of Appeal addressed unresolved cost issues. The City requested costs for both the appeal and prior chambers applications. It sought 54% partial indemnity, calculated at $335,147.76, or alternatively, four times Column 5 of Schedule C ($104,809.88) for the appeal and $231,070.79 plus disbursements for the lower court proceedings. The City also sought the return of $600,000 paid to Westcan after the chambers decision.

Westcan opposed these amounts and asked for costs on Column 1 of Schedule C, totaling $4,320 in fees and $737.60 in disbursements, with all cost decisions stayed until the Supreme Court proceedings concluded.

The Court ruled in favor of the City, awarding costs on three times Column 5 of Schedule C for both courts, plus disbursements, and ordered the return of the $600,000. However, all cost-related decisions were stayed pending completion of the matter in the Supreme Court of Canada.

Outcome

• The Alberta Court of Appeal reversed the chambers judge, upheld the City’s closure bylaw, and vacated the injunction.

• A temporary stay of that ruling was granted to preserve the status quo until the Supreme Court decides whether to grant leave to appeal.

• The City was awarded costs for both levels of court and the return of $600,000, but enforcement is stayed pending final resolution at the Supreme Court.