Case: Borgel v Paintearth (Subdivision and Development Appeal Board), 2019 ABCA 25 (CanLII)

Keywords: Application for Permission to Appeal; Municipalities; Development Permit; Municipal Government Act, RSA 2000, c M-26

Synopsis:

Can permission to appeal be granted by a single judge where there is “a question of law of sufficient importance to merit a further appeal”?

With its application before the Alberta Utilities Commission (“AUC”) still pending, Capital Power Generation Services Inc. applies to the County of Paintearth for development permits for its “Wind Power Project”, located near the town of Halkirk.

The County approves. The Applicants (Gerald Borgel et al.) appeal the development permits to the Subdivision and Development Appeal Board (“SDAB”). Prior to the preliminary hearing before the SDAB, the AUC issues a decision approving the “Wind Power Project” and finding it that it is in the public interest to do so.

Shortly thereafter, the SDAB dismisses the Applicants’ appeal and cancels the merits hearing on the basis that it is “no longer required”. The Applicants apply for permission to appeal and Khullar J.A. grants permission.

Importance:

Pursuant to s. 688(3) of the Municipal Government Act, RSA 2000, c M-26, a single judge of the Court may grant permission to appeal a decision of an SDAB if the appeal “involves a question of law of sufficient importance to merit a further appeal and has a reasonable chance of success.” (See para. 10).

The application for permission to appeal in this case concerns the interpretation and application of s. 619 of the Municipal Government Act, RSA 2000, c M-26 (MGA) by the SDAB.

Khullar J.A. identified the relevant provisions of s. 619 of the MGA as follows:

(1) A licence, permit, approval or other authorization granted by the NRCB, ERCB, AER, AEUB or AUC prevails, in accordance with this section, over any statutory plan, land use bylaw, subdivision decision or development decision by a subdivision authority, development authority, subdivision and development appeal board, or the Municipal Government Board or any other authorization under this Part.

(2) When an application is received by a municipality for a statutory plan amendment, land use bylaw amendment, subdivision approval, development permit or other authorization under this Part and the application is consistent with a licence, permit, approval or other authorization granted by the NRCB, ERCB, AER, AEUB or AUC, the municipality must approve the application to the extent that it complies with the licence, permit, approval or other authorization granted under subsection (1).

 . . .

(4)  If a municipality that is considering an application under subsection (2) holds a hearing, the hearing may not address matters already decided by the NRCB, ERCB, AER, AEUB or AUC except as necessary to determine whether an amendment to a statutory plan or land use bylaw is required. (See para. 9)

In simple terms, the question before Khullar J.A. was, inter alia, whether the SDAB was correct to consider the hearing pending before it “no longer required” on the basis the AUC had already approved the project. Alternatively, were the Applicants not entitled to present their side – regardless of what the AUC had to say? (See para. 8).

Citing Brown J.A. (as he then was) in the case of Carleo Investments Ltd v Strathcona (County), 2014 ABCA 302 (CanLII) at para 10, Khullar J.A. noted that whether an appeal is of sufficient importance to merit an appeal (i.e. passes the test for permission to appeal) depends on its jurisprudential significance – do the issues go beyond the dispute between the parties? Further, in exceptional circumstances the adverse effect of a decision may itself amount to sufficient importance for the purpose of the test for permission to appeal. (See para. 11).

In this case, Khullar J.A. noted that the SDAB interpreted s. 619 of the Municipal Government Act in such a way that it was required to approve the development permits in question:

In its reasons for decision, the SDAB stated that under s 619 of the MGA, “[t]he SDAB must approve an application for a development permit if the application is consistent with the AUC approval,” that it “must approve the development permit to the extent it complies with the AUC approval,” and that it “cannot deny the development permit for reasons already considered and, either, rejected or addressed by the AUC” (Record at 000003). (See para. 13).

For Khullar J.A. the interpretation of s. 619 “clearly” raised a legal issue with implications for future parties appearing before the SDAB and future appeals. The Applicants provided an alternative reading of s. 619 – one which arguably would have permitted the cancelled SDAB hearing:

The applicants submit that the SDAB erred in its interpretation of s 619. They argue that ss 619(2) and (4) authorize the County (and its MPC), but not the SDAB, to determine whether a development permit is consistent with an approval granted by the AUC. Among other things, the applicants contend that the specific references to “municipality” in ss 619(2) and (4) exclude the SDAB. Consequently, they submit, it was the responsibility of the County’s MPC, rather than the SDAB, to determine whether the development permits were consistent with the AUC decision. (See para. 14).

Khullar J.A. found this interesting jurisdictional problem met the test for permission to appeal.

Counsel for the Applicants: William McElhanney & Alexander Yiu (Ackroyd LLP, Edmonton)

Counsel for the Respondent Subdivision and Development Appeal Board County of Paintearth No. 18: Kelsey Becker-Brookes (Reynolds Mirth Richards & Farmer LLP, Edmonton)

Counsel for the Respondent County of Paintearth No. 18: Jeneane Grundberg (Brownlee LLP, Edmonton)

Counsel for the Respondent Capital Power Generation Services Inc.: Gavin Fitch, Q.C. (McLellan Ross LLP, Calgary)