Executive Summary: Key Legal and Evidentiary Issues

• Whether the City of Camrose's advertising for Off-site Levy Bylaws complied with the Municipal Government Act and its own Advertising Bylaw requirements

• Adequacy of electronic notice when information about bylaws was provided through hyperlinks rather than directly in advertisements

• Compliance with mandatory advertising methods, specifically posting on both Facebook and Twitter as required by the Advertising Bylaw

• Characterization of off-site levy bylaws as regulatory charges versus taxation, affecting the standard of procedural compliance required

• Whether procedural deficiencies in advertising warranted invalidating the bylaws despite actual notice to affected developers

• Impact of statutory appeal rights to the Land and Property Rights Tribunal on the court's decision to issue a declaration of invalidity

Background and Context

In 2022, the City of Camrose passed bylaws 3219-22 and 3220-22 establishing off-site levies payable in respect of developed or subdivided land in the city. Off-site levy bylaws allow municipalities to recover capital costs associated with new or expanded facilities for water, sewage, roads, recreation and other infrastructure required to support new development in the municipality. The off-site levies payable by a developer cannot exceed the developer's "proportional benefit" from the infrastructure funded by the levy. The City's Off-site Levy Bylaws replaced its 2017 off-site levy bylaws, significantly increasing the amounts payable by developers like the appellant Southpoint Landing JV Inc who apply for a development permit or subdivision approval.

The Municipal Government Act requires municipalities to advertise certain bylaws prior to passing them, including off-site levy bylaws. Municipalities may advertise in a variety of ways, including as provided for by advertising bylaws adopted by a municipality. The City adopted an advertising bylaw in 2018: City of Camrose, bylaw No 3005-18, Public Notification Bylaw (7 August 2018).

The Advertising Issue

On June 16, 2022, the City electronically published notice of the June 20 meeting, at which the Off-site Levy Bylaws were to be considered, along with a link to the meeting agenda. The linked meeting agenda listed the proposed bylaws, included copies of them, and had a statement of their general purpose. However, the electronic notice only indicated that a meeting was taking place on June 20. It did not identify the bylaws being considered at the meeting, and did not provide any details about the bylaws' purpose or substance; a person who saw the electronic notice would only obtain information about a proposed bylaw if they clicked the link.

Also on June 16, 2022, the City published a post on Facebook about the June 20, 2022 meeting. The Facebook post explicitly identified the two Off-site Levy Bylaws as matters on the meeting agenda and included a link through which people could view the full agenda. The full agenda included copies of the Off-site Levy Bylaws and a statement of their purpose, but the Facebook post itself did not.

The City did not post information about the Off-site Levy Bylaws on Twitter prior to the June 20 meeting. On the day of the meeting, it posted the following to its Twitter account: "Council's first two items are related to the new Off Site Levy model. This project is in collaboration with Camrose County for coordinated service areas. The County approved first reading of the same bylaw at their meeting last week."

Southpoint Landing brought an originating application pursuant to section 536 of the Municipal Government Act seeking a declaration that the Off-site Levy Bylaws were invalid, asserting that the City did not advertise the Off-site Levy Bylaws as required by the Municipal Government Act.

The Lower Court Decision

The chambers judge refused the application. He found that while the screenshot provided by the City did not include the address www.camrose.ca, he was satisfied that the screenshot was from "the webpage for the City and/or its bulletin board as required by subsections 2.2 and/or 2.4 of the Advertisement Bylaw" and was posted on June 16, prior to the meeting.

The chambers judge rejected the appellant's position that the digital page itself must contain the information about a bylaw's purpose and where it can be inspected as required by section 606(6) of the Municipal Government Act. In his view, a link containing that information is sufficient to satisfy the obligations under the Municipal Government Act and is a format consistent with modern electronic capabilities and practices.

He agreed with the appellant that, because the City posted the notice on Facebook in advance of the meeting, but did not post on Twitter until the day of the meeting, it had not followed the method specified in subsection 2.3 of the Advertising Bylaw. That subsection requires the advertisement be published on both Facebook and Twitter.

The chambers judge found the City's advertising complied with its Advertising Bylaw and the Municipal Government Act and, if it did not, the deficiencies were merely technical and not sufficient to justify invalidating the Off-site Levy Bylaws.

The Appeal Court's Analysis on Advertising Requirements

The Court of Appeal found the chambers judge erred in finding the City's advertising provided the information required by the Municipal Government Act. The Court held that the City's advertising for the Off-site Levy Bylaws did not ensure effective notice. The notice on its website or electronic bulletin board only stated that a meeting was being held on June 20, 2022 and provided a link to the meeting agenda. It did not set out any information about what would be discussed at the June 20 meeting. It did not indicate what was contained in the meeting agenda. An affected person viewing the website or electronic bulletin board, who did not already know the Off-site Levy Bylaws were in the process of being enacted, would not know there was information about the bylaws accessible by clicking the link.

The Court clarified that where a municipality's advertising bylaw permits electronic advertising, a hyperlink may be an option for communicating the information required by the Municipal Government Act. For example, a bylaw's statement of purpose, and the bylaw itself, could be made accessible through a link, so long as the electronic notice itself provided sufficient information about what the link contains, such as a brief description of the bylaw and a statement that by clicking the link a person can access the bylaw's statement of purpose and review its proposed content. Appropriate procedural fairness under the Municipal Government Act and Advertising Bylaw requires the City to do more than publish information that a meeting is being held with a link to the meeting agenda.

The Court also had some reservations with the chambers judge's conclusion that the City satisfied the requirements of the Advertising Bylaw by publishing the notice prominently on its website (subsection 2.2) or on an electronic bulletin board (subsection 2.4). The chambers judge needed to determine whether the screenshot in evidence was of the website www.camrose.ca or whether it was of an electronic bulletin board. In particular, if finding the information was on the website, the chambers judge needed to assess whether the information was there "prominently" as required by subsection 2.2. In the Court's view, information about a meeting with a link, and nothing more, cannot be said to provide the necessary information "prominently".

The chambers judge did not err in finding the terms of the Municipal Government Act only required notice of the Off-site Levy Bylaws to be given prior to second reading. Section 606(3) provides explicit direction that "A notice of a proposed bylaw must be advertised under subsection (2) before second reading". The general guidance applicable to an "other thing" in section 606(5) does not additionally apply in light of the legislature's specific guidance for bylaw advertising.

Characterization of Off-site Levy Bylaws

The chambers judge found the Off-site Levy Bylaws do not expropriate property, do not raise funds for general revenues, and fit within the description of a regulatory charge, not taxation: "They are charged by and collected in order to finance services required to be constructed to facilitate the development proposed on a piece of land". The Off-site Levy Bylaws do not interfere with other private rights and are not an exercise of extraordinary powers.

The Court of Appeal upheld this characterization. The primary purpose of a tax is "to raise revenue for general purposes", whereas the purpose of a regulatory charge is to further a regulatory scheme. Indicia of a regulatory scheme include the presence of "a complete, complex and detailed code of regulation", "the presence of actual or properly estimated costs of the regulation", and the existence of "a relationship between the person being regulated and the regulation, where the person being regulated either benefits from, or causes the need for, the regulation".

The Court found that off-site levies defray the costs associated with a regulatory scheme. The Municipal Government Act and the associated regulations create a detailed scheme through which municipalities construct the infrastructure and facilities necessary for new development, while developers like the appellant pay their development's proportionate share of the costs of that infrastructure. The amount to be paid is calculated based on the infrastructure built, using information, data and assumptions made available to developers, so they can replicate the calculations. The need for infrastructure arises from the activities of developers and its construction ensures their developments have the infrastructure they require; the off-site levy flows from the activities of the developers and the infrastructure construction those activities require.

As a regulatory charge, the updated calculation for the off-site levy does not fall within categories of "by-laws concerning taxation, expropriation or other interference with private rights". It also does not represent another type of extraordinary exercise of municipal power. Setting the amount of an off-site levy is constrained by decisions about infrastructure construction and expansion made separately, by legislative restrictions on calculating the levies, and by oversight from the Land and Property Rights Tribunal.

The Invalidity Question

The chambers judge acknowledged that municipal bylaws must strictly comply with procedural requirements in certain circumstances, such as when the subject matter of the bylaw is taxation or expropriation, or results in interference with other private rights. However, he concluded the Off-site Levy Bylaws did not fit into any of those categories. He held that even if he had found technical non-compliance with the notice requirements, he would not invalidate them. He emphasized the actual notice received by the appellant and its ability to provide its position on the proposed bylaw to the City. He found "Because an affected stakeholder may pursue other recourse for an off-site levy bylaw perceived as unfair, mere technical non-compliance with notice provisions is not fatal to the validity of an offsite levy bylaw".

The Court of Appeal held that while the advertising was done within time, it did not satisfy the advertising obligations set out in the Municipal Government Act because it did not contain the information required to be provided in such advertisements. It did not ensure effective notice.

The Court emphasized that compliance with statutory procedures is not optional, and a failure to do so necessarily calls the validity of the resulting bylaw into question. Section 537 of the Municipal Government Act expressly contemplates applications for a bylaw to be "declared invalid" for failure to comply with statutory procedural requirements, and section 538 allows those applications to be made "at any time" if "the bylaw is required to be advertised and it was not advertised". Once an applicant establishes a municipality has failed to comply with its legislated procedural obligations, the municipality bears the onus of persuading a court that it ought not to issue a declaration of invalidity.

The Court did not agree with the chambers judge that the proposition from an earlier case, that a procedural defect must be "so dramatically devoid of the appearance of fairness that the administration of justice is brought into disrepute", usefully informed the decision about whether to issue a declaration of invalidity in this case. The City needed to establish on the facts that a declaration was unwarranted or inappropriate, taking into account the seriousness of the municipality's failure to comply with required statutory procedures and the failure's impact on the procedural entitlements of the parties affected by the municipality's decision.

Factors Considered in Not Invalidating the Bylaws

The Court acknowledged that the City's advertising materially deviated from its legislative obligations in a way that is hard to understand. The City enacted its own Advertising Bylaw, and the guidance given by the Municipal Government Act as to what needs to be included in an advertisement is straightforward. The City advertised on Facebook but not on Twitter, even though it had an active Twitter account and its Advertising Bylaw required the advertisement to be on both. It provided specifics about what was being considered at the meeting on Facebook but did not include the same information on its other electronic sites. If the screenshot was from its website, there was nothing to indicate that the information was displayed on the website prominently, as the Advertising Bylaw required.

However, the Court found no reviewable error in the chambers judge's decision not to declare the bylaws invalid. The appellant was notified the bylaws were being considered, and that the bylaw process would commence in June. That specific information supplemented the City's advertising. It alerted the appellant of the need to monitor the City's activities, including its social media and electronic postings, and made it much less likely the appellant would miss the information about the meeting to consider the Off-site Levy Bylaws, even if the information was not provided in the proper format or as clearly as it should have been. Everything the appellant needed to know, including the proposal to do all three readings on June 20, was on the agendas made available electronically and through Facebook, had the appellant been monitoring those sites. The appellant and other affected developers were not solely dependent on the City's advertising to learn about the off-site levies, or that they were being considered by the City in June.

The City produced a copy of an e-mail from its Manager of Planning and Development, Aaron Leckie, dated May 11, 2022, that indicated it was sent by "bcc" to "active and recent developers" in Camrose. The e-mail explained the process through which the new levy rates were identified and also identified what the new off-site levy rates would be for each of the 140 off-site levy areas in Camrose. It invited a "continuing... conversation through the month of May" and said the city and council "intend[ed] to commence the Bylaw process in June".

On May 12, the appellant's Manager of Development, Will Adam, responded to the e-mail and expressed concern over the off-site levy rate increase, noting: "Current OSL rates for Valleyview West (Area #89) is $25,946/ha Proposed OSL rate for Area #89 is… $186,821/ha?" Also on May 12, Mr. Leckie replied and provided detailed information to Mr. Adam about the basis for the change to the off-site levy rates, and confirmed they would be speaking that afternoon. The parties exchanged further e-mails discussing the substance of the change.

Even if the appellant had known to attend the June 20 meeting, it had no procedural entitlements in relation to council's consideration of the Off-site Levy Bylaws; the meeting was not a public hearing, and the appellant could have asked to speak but had no right to do so. At the same time, the appellant enjoyed other procedural entitlements. It had a statutory right to be given information and to be consulted, the sufficiency of which it has not challenged. Nor has it appealed the substance of the Off-site Levy Bylaws to the Land and Property Rights Tribunal, although it could have done so. The letter the appellant submitted following the June 20 meeting was considered at a full meeting of council on October 3, 2022, and the appellant was advised of council's response.

On July 8, 2022, Mr. Adam sent a letter on behalf of the appellant to the City with detailed feedback on the calculation of the off-site levy. The letter identified the appellant's particular concern with the infrastructure plans on which the levy was based, and made suggestions for change, including the adoption of a "phased approach". On July 14, 2022, Mr. Leckie responded saying the bylaws had already been enacted. He confirmed that the appellant's concerns were noted, but stated council was aware of the substantial increase and had nevertheless confirmed the revised off-site levies. On October 12, 2022, the mayor of Camrose wrote to Mr. Adam and advised that at the October 3, 2022 meeting of the Committee of the Whole Council, council had reviewed the appellant's concerns regarding the Off-site Levy Bylaws. The mayor advised, "Council has not directed administration to take any further action". The letter also noted that the off-site levies would be reviewed on an annual basis.

The Court also noted the public importance of the Off-site Levy Bylaws. The dramatic increase in the levies from 2017 was unsurprisingly concerning to the appellant. Yet, considering that the substantive validity of that increase has not been disputed, that increase reflects significant cost burdens on the municipality. Invalidating the Off-site Levy Bylaws would have meaningful adverse consequences for other residents and taxpayers within the municipality. That adverse impact would not on its own justify a court in disregarding the City's procedural deficiencies, but it is part of the overall context of the assessment of whether a declaration of validity ought to be issued.

Ruling and Outcome

The Court of Appeal dismissed the appeal. While the advertising was done within time, it did not satisfy the advertising obligations set out in the Municipal Government Act because it did not contain the information required to be provided in such advertisements and did not ensure effective notice. The deficiencies did not materially prejudice the appellant, and do not impugn the legitimacy of the levies enacted by the City. The successful party was the City of Camrose. No monetary award was specified in this decision.