It should first be clearly stated what this application is about and what
it is not about. This application is not about public policy or the
right of the MD to make political decisions relevant to its constituents.
Rather, this application is about two key legal issues. Does the bylaw
discriminate between users of Springbank Road and, if so, is that
discrimination permitted by statute. As summarized by Rooke J. in
Claudia's Restaurant Group Inc. and Lamonaca v.
Calgary (City) (1993), 140 A.R. 376 at 386 (Q.B.), a city or
MD may have every right to make decisions of policy to meet the needs and
wishes of residents within that jurisdiction. However, it may not make
S.1 44 Unless the context otherwise requires, a person operating a
bicycle or motor cycle on a highway
of a driver under Part 3.
(a) has all the rights, and
(b) is subject to all the duties,
The applicants submit that, for the purposes of the Highway Traffic
Act, the rights and obligations of motorists and cyclists are
"equal". With the important caveat that the Act contemplates that
this equality of rights and obligations may be disturbed if 'The context
otherwise requires," I agree with the applicants that this is the plain
and ordinary meaning to be given to this provision. The applicants
concede that the MD has control over the roads in the MD and, for the
most part, the right to make decisions regarding the use of the roads.
What the applicants submit the MD may not do, however, is discriminate
between users of those roads without statutory right.
It is their position that the bylaw is discriminatory because it treats
cyclists different from all other classes of users. lndeed, the
bylaw treats cyclists, one subset of the class of slow moving vehicles,
different from any other subset of slow moving vehicles. Specifically,
the bylaw prevents cyclists from using Springbank Road during certain
times of the day without a similar restriction being placed on any other
users. They submit that the discriminatory nature of the bylaw evolved
from how "the problem" on Springbank Road was originally defined.
The heart of this first issue lies in the MD's motive or purpose in
enacting the bylaw. As stated by Ian MacF. Rogers, 0.0., The Law of
Canadian Municipal Corporations, 2nd ed. (looseleaf) (Toronto:
Carswell, 1971), Vol.2, p.1026, para. 193.51:
A bylaw will not be characterized as discriminatory simply because it is
directed at one particular person or lot. Two elements are required to
establish discrimination: (1) the bylaw must in fact discriminate, by
giving permission to one person and refusing permission to another, and
(2) the factual discrimination must be carried out with an improper
motive of favouring or hurting the individual without regard to the
The learned author describes the requisite public interest, supra,
The fact that a bylaw is passed to benefit a particular group, even at
the expense or to the prejudice or another group, is not sufficient to
invalidate it on this ground so long as council acts in what it regards
as the best interests of the public.
And at p.101 9, para. 193.22:
Generally speaking, the courts take the view that the council, being
familiar with local conditions, is in the best position to determine what
is or is not in the public interest and if it has exercised its
discretion bona fide, Its judgment will not be disturbed by the
court unless good and sufficient reason can be established.
See also Marion v. Regina City (1982), 22 Sask.
R. 72 (Q.B.) and Re Edmonton By-Law No. 1546 (1953), 10
W.W.R. (N.S.) 407 (Alta.C.A.). The burden rests upon the person
challenging the bylaw to show that council was not acting in the public
interest (Rogers, supra, and Keily v.
Edmonton,  1 W.W.R. 365,  2 D.L.R. 705
The applicants must do more than simply show that the MD's decision to
enact the bylaw was ill-considered or unpopular. Firstly, it must be
shown that the bylaw discriminated against the cyclists. Secondly, it
must be shown that council's purpose in enacting this bylaw was not
bone fide or made with or in good faith. Such relief, as in the
form of an order quashing a bylaw, will only be granted if the applicants
can show that
council did not act in the best interests of the public and, in so
failing, exercised its discretion to pass the bylaw in bad faith or with
an improper motive.
Although the parties disagree as to when the proposal to impose a cycling
ban first arose, it is clear on the facts that the proposal first
received serious consideration by the Traffic Control Authority Committee
(the 'TCAC") on November 24, 1995. The Committee enacted a cycling ban
and posted signage on or about February 1, 1996, without prior
notice being given to those cyclists who would be affected by the ban.
Council for the MD then determined that the introduction of a bylaw would
"give greater authority" to the ban. The bylaw was introduced at
the April 16, 1996 meeting of Council and was considered at the April 23,
1996 meeting of Council, with third reading and passage of the bylaw
occurring at that April 23, 1996 meeting of Council. Among those opposed
to the bylaw were area residents who would be "landlocked" if the
ban or the bylaw passed. By "landlocked", I find that these
residents (including the applicant, Baskerville) would be prohibited from
using their bicycles for transportation during the hours of the ban.
Recreational cyclists (including members of the applicant club EVCC) were
also opposed to the passage of the bylaw as the effect of the ban is to
close the road to these users, other than during the hours of 7:00 p.m.
Although the Council meetings of April 16 and 23, 1996 were advertised in
the local newspaper and submissions were received from those in favour
and those opposed to the proposed bylaw, the prior decision of the TCAC,
made without prior notice to those cyclists affected by the ban,
and Council's ratification of that ban by bylaw, gives more than the mere
impression that the bylaw was a foregone conclusion. Such an exercise
of discretion by the MD in enacting a bylaw to "give
greater authority" to the TCAC's ban was not bona fide. Such an
exercise was not in the best interests of the public. It was, for all
intents and purposes, a "done deal". Not only was the MD's
discretion in enacting the bylaw not exercised in good faith, the purpose
or reason why the MD enacted the bylaw was not bona fide.
The respondent submits that the bylaw was enacted for the bona
fide purpose of promoting the safety and well being of
cyclists. I do not find the respondents submission persuasive. On
the basis of the documents filed by the applicants, I find that the
purpose of the MD in enacting the ban and bylaw was clearly to spare
motorists, one class of users, from the very presence of cyclists
on Springbank Road during all hours save 7 p.m. to sunset. This is not
the purported bona · fide purpose argued before me
by counsel for the respondent.
Material which had been before the TCAC was present for consideration by
the MD at the April 16th and 23rd, 1996 meetings. Those documents
included, inter alia, the following filed by the applicants on
1. February 6, 1996 - Memorandum from Jim Baldwin, Director of
Transportation and Field Services to Peter Kivisto, Municipal Manager
2. March 15, 1996 - Minutes of the March 15, 1996 TCAC
3. March 15, 1996 - Report from Division 2 Councillor (Gloria Wilkinson)
4. April 16, 1996 - Staff Report To Council from Peter Kivisto, Municipal
5. April 22, 1996 - Facsimile Message from Corporal V.B. McFarlane of
Cochrane R.C.M.P. to Constable Arnie Wilson of M.D. of Rocky View;
6. Traffic Volumes on Springbank Road; and
7. Speeding Statistics for Springbank Road.
Upon review of these documents, as well as the transcript of the
cross- examination on Affidavit of Mrs. Schmaltz, I find that the
following evidenced "the true problem" before the TCAC and
1. More than 55% of the motorists on Springbank Road travel in excess of
the posted speed limit of 80 kph, with nearly half of that number (25%
of total motorists) travelling 10 kph or more over the speed limit. 'The
problem" was aggravated by speeding motor vehicles;
2. Those cyclists who had, in the past, insisted on riding 2-3 abreast
had aggravated "the problem" on Springbank Road;
3. Springbank Road attracts multiple users with different goals and
objectives. 'The problem" was also aggravated when motor vehicles were
required to share the road with other users who were unable to travel at
the posted speed limit of 80 kph and must therefore, of necessity, travel
at a slower speed. Those other users included:
It is apparent that the motive of the MD had little to do with "the
problem" as evidenced by the documents before Council. I agree with the
applicants that "the problem" was one of general road safety for all
users of Springbank Road. I also agree that this problem was not posed
by cyclists, or even by other slow moving users of the road per se
. Danger is not posed to other users of the road simply because
cyclists may also be present on that road at any time of the day. The
safety of &ll users is jeopardized only when any one of the
users, including motorists, utilize the road in a manner contrary to the
relevant provisions of the Highway Safety Act. Lawful usage
of the road is consistent with safe usage. The problem of the unsafe or
illegal actions by offenders from all classes of users of the road was
the issue of public interest squarely before the MD. However, the purpose
of the MD in enacting the bylaw, to spare motorists from the very
presence of cyclists on Springbank Road during all hours save 7 p.m. to
sunset, did not address the problem. The purpose of the MD in enacting
the bylaw clearly did not reflect the public interest and was not bona
d. farm equipment (tractors, balers, et al.)
I find that the bylaw factually discriminates against cyclists and
this discrimination was carried out with an improper motive of favouring or
hurting one individual or class of user without regard to the public
The bylaw prohibits cyclists from using Springbank Road outside the hours
of 7 p.m. to sunset without regard to the presence and use of that road
by other classes of users who, because of their unsafe or illegal
actions, pose as much of a potential threat to the general safety of all
road users as cyclists. Other slow moving users, as well as
speeding motorists, may, if acting in an unsafe or illegal manner, pose
the very same risk of accident to law abiding users of all classes.
Presumably, following the logic of the MD in enacting the bylaw, the same
problem is created when motorists encounter these other slow moving
users. However, I find that the respondent has filed no evidence to suggest
that steps were also taken by the MD to restrict the movement of such
other subclasses of slow moving users as pedestrians, in-line skaters,
equestrians or farmers driving tractors and balers.
It is equally clear that the problem of road safety for all users was
never dealt with as a speeding problem. Nor is there any indication in
the record that council took steps to address the issue as a speeding
problem. The perceived danger posed by cyclists was created, in part, by
the irresponsible actions of certain motorists, a majority of whom were
travelling in excess of the posted speed limit. Nowhere in the minutes or
the other documents before council does it appear that the speeding
problem was addressed. There is no indication that efforts would be made
by the MD to enforce the existing speed limit, or to impose a lower speed
law. The latter was one of the options suggested to Mrs. Wilkinson,
Division 2 Councillor, on a number of occasions (see facsimile message
from Corp. McFarlane). If the MD's concern was that certain irresponsible
cyclists were travelling 2 or 3 abreast, or were otherwise operating
their bicycles in contravention of the Highway Traffic Act,
then those individuals should have been charged by the municipal
One subclass of users cannot per se pose a danger of collision and
accident to motorists or any other class or subclass of users. It is the
or user or a combination of users who, by driving or operating their
vehicles in such an unsafe or illegal manner, cause danger and accident.
In light of the documents before the MD and now before this Court, it is
clear that motorists are not exempt and have contributed to the
Comments contained in the above mentioned documents and the passage of
the bylaw by the MD reflect a belief that cyclists are "second
class" users of Springbank Road. Where there was a conflict between the
presence of the cyclists and the "right" of the motorists to travel
the road, at virtually any speed, it was the cyclists' presence that was
curtailed. The cyclists, however, pursuant to s.144 of the Highway
Traffic Act, have an equal right to travel the road. The facts do
not support any possible argument that the "context (might)
otherwise (have) required" the suspension of these rights and
The respondent submits that the ban is a valid vehicle restriction bylaw.
It relies upon R. v. Torrance (1975), 29 C.C.C.
(2d) 376 (Alta. S.C.) for the proposition that, providing the
classification of vehicles is based upon genuine differences in their
characteristics, it is not discrimination to treat classes differently.
However, the Court premised that ruling upon the following observation at
The respondent states that this situation is analogous to the situation
considered in Torrance "as the bylaw restricts all
bicycles, as a class, from using Springbank Road on the basis of genuine
differences between motor vehicles and bicycles.
bicycles have notably different characteristics than motor vehicles with
respect to travel speed and safety issues in that there is significantly
more risk of injury if a cyclist is in a collision with a motor vehicle
than if a person in a motor vehicle is in a collision with another motor
vehicle. Moreover, a bicycle's comparatively slow speed combined with the
narrow width of Springbank Road creates a serious hazard for motorists
and other users of the road." It is on this basis that the respondent
submits that the bylaw is not discriminatory and should be upheld.
The classification of vehicles in this by-law is based upon genuine
differences of characteristics and all the vehicles in each class are equally
affected. I do not find the by-law to be discriminatory.
In this situation, all the vehicles "in each class" are equally
affected. Torrance must be distinguished upon its facts. In
Torrance, the City of Calgary passed a "truck bylaw"
which restricted trucks from using city streets other than those streets
established as truck routes. The bylaw applied to all vehicles
with a weight exceeding 9,000 pounds intended for the conveyance of
livestock, liquids, goods, merchandise, gravel, sand, concrete and other
materials. Buses of equal weight were exempt. Laycraft J., for the Court,
explained why such a distinction was permissible at p.379:
The distinguishing characteristic relied upon by the respondent is a
characteristic shared by all users of Springbank Road save for
motorists. Cyclists, as well as pedestrians, in-line
skaters, equestrians and farmers operating tractors and balers all
operate at a slower speed in comparison to motorists. It would be
simplistic to classify the users of Springbank Road into sub groups of
motorists, cyclists, pedestrians, in-line skaters and farmers operating
tractors or balers. In the words of Laycraft J., supra, "to
classify the members of a group is to divide them into sub groups
according to the presence or absence of some distinguishing
characteristic." Speed is that characteristic and that one feature is not
sufficient, in this case, to differentiate between motorists and
cyclists without regard to all other users who share that same
characteristic. In Torrance, the distinguishing characteristic was
clearly connected to the bona fide purpose of traffic control. In
this situation, there simply is no bona fide purpose. The
respondent likewise relies upon All-Canadian Push Cart Co.
v. Calgary (City) (1992), 13 M.P.L.R. (2d) 1 at
8-9. And likewise, it too is easily distinguished. In that case, McMahon
J. found that the bylaw had been enacted for the proper purpose of crowd
control. There had been a bona fide purpose.
The decision of Rooke J. in Claudlo's Restaurant Group Inc. and
Lamonaca v. Calgary (City), supra, is truly analogous
and helpful. An application was brought to quash a bylaw purporting to
prohibit "any business" in the "Electric Avenue" area of
Calgary from playing or operating a "sound amplification device" in
an outside area. That bylaw was quashed because only businesses
operating a sound amplification device in an outside area, and not other
users of such devices, were so prohibited.
Dickie Dee Ice Cream Ltd. v. City of Winnipeg
(1985), 40 Man.R. (2d) 72 (Man.C.A.) and R. v.
Sharma,  S.C.R. 650 are the leading authorities. In
Dickie Dee Ice Cream Ltd., supra, Hall J.A. held that any such
prohibition must be exercised for a bona fide municipal purpose.
In the absence of a regulatory rationale, the Court should and must say
that such an enactment is invalid as unauthorized discrimination. In
Sharma, supra, Iacobucci J., for the Court, applied the decision
of the Supreme Court in Montreal (City of) v. Arcade
Amusements Inc.,  1 S.C.R. 368 and held that the power to pass
municipal bylaws does not include enacting discriminatory provisions
unless the enabling legislation authorizes such treatment. At 668:
In its ordinary meaning, to classify the members of a group is to divide
them into sub groups according to the presence or absence of some
distinguishing characteristic. There would not appear to be any reason
why a classification of vehicles could not distinguish between those
which carry passengers and those which do not. That one feature may
well be sufficient to differentiate between groups of vehicles based upon
such factors as silence of operation, speed and silence of acceleration,
axie loading and other attributes which are valid elements of traffic
Upon review of the Municipal Government Act, the
Highway Traffic Act and the documents filed by the
appellants, it is evident that here, as in Sharma, this
discrimination against cyclists was not "a necessary incident to
exercising the power delegated by the province. As stated by Rogers,
supra, at pp. 406.3-406.4:
Further, the general reasonableness or rationality of the distinction
is not at issue: discrimination can only occur where the enabling
legislation specifically so provides or where the discrimination is a
necessary incident to exercising the power delegated by the province.
It is a fundamental principle of municipal law that bylaws must affect
equally all those who come within the ambit of the enabling enactment.
Municipal legislation must be impartial in its operation and must not
discriminate so as to show favouritism to one or more classes of
citizens. Any by-law violating this principle so that all
the inhabitants are not place in the same position regarding matters
affected by it is illegal.
The bylaw is discriminatory as against cyclists.
The general principle does not apply where the enabling statute clearly
specifies that certain persons or things may be excepted from its
operation or expressly authorizes some form of discrimination.
IV. WAS THIS DISCRIMINATION AUTHORIZED BY THE MD'S ENABLING
The respondent submits that s.16 of the Highway Traffic Act
and s.8 of the
Municipal Government Act grant the MD the express authority
to discriminate against users of the highway. However, s.16(l) of the
Highway Traffic Act first contemplates the following
(a) The bylaw must not be inconsistent with this Act;
(b) The bylaw can only be with respect to "matters for which no
provision is made in this Act'; and
(c) The bylaw can only be for "the regulation and control of
vehicle, animal, and pedestrian traffic."
The bylaw is inconsistent with the Highway Traffic Act
because s. 144 of the Highway Traffic Act does
create equality rights for cyclists subject to the Acts provision for
variation in an appropriate context. Accordingly, a bylaw that
discriminates between motor vehicles and bicycles, when no express
statutory rationale exists for revoking the rights and obligations of
cyclists, is inconsistent with the Highway Traffic Act.
Moreover, the powers granted to a MD under s. 16(1) can only be
exercised for "matters for which no provision is made in this Act."
Part 5 of the Highway Traffic Act contemplates the safe
operation of all vehicles and appears to create a "code"
which, if followed, provides for the safe operation of all
vehicles on the highway. It therefore cannot be said that no provision is
made for the "matters" which the bylaw purports to address. Indeed,
the stated purpose of the bylaw, "to restrict and control the use
and operation of bicycles on 7th Avenue (Springbank Road) from the
westerly limit of the City of Calgary to Highway 22," clearly conflicts
with Part 5 and, in particular, s.1 44 of the Highway Traffic Act.
With regard to the respondent's further argument that
s.8 of the Municipal Government Act also grants the MD the
power to pass bylaws discriminatory in nature, it is critical to review
the section carefully. S.8 refers to business activities within the
municipality and not to highway traffic issues. S.8 must also be read in
light of s.9 which stipulates that the powers given to the municipality
under s.8 only refer to those powers within the jurisdiction given to the
municipality. A careful review of s.9, in turn, refers one back to s.
144 of the Highway Traffic Act and the provision of
equality rights and obligations granted to cyclists.
It is particularly significant that no where in either the Highway
Traffic Act or the Municipal Government Act is the
respondent expressly granted the jurisdiction to prohibit bicycles from a
For the above stated reasons I find that the bylaw is discriminatory as
against cyclists and this discrimination is neither authorized by the
Municipal Government Act, the MD's enabling statute, nor
the companion Highway Traffic Act. Bylaw C-4628-96 is
hereby quashed and an Order will also go removing the signage banning
cycling on Springbank Road.
________ day of April, 1997.
R.J. Everard, Esq., for Applicants
G.B. Scott, Esq. & Ms. J.M. Klauer for Respondent
IN THE COURT OF QUEEN'S BENCH
JUDICIAL DISTRICT OF CALGARY
IN THE MATTER OF the Municipal Government
R.S.A., 1980, c. M-26.1