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You Don’t Need No Representation? Procedural Fairness and the Municipal Government Act

Case: Money v Bonnyville (Municipal District No. 87), 2015 ABCA 254

Keywords: Procedural Fairness; Municipal Law; Stop Order; Municipal Government Act; Administrative Law

Synopsis: A stop order requires the Applicants to demolish cabins situated on their land. The order states the structures do not comply with ‘Bylaw No 1207’ as there is no development permit and too many ‘dwellings’ on the parcel as per s. 43 of the Bylaw.

The Applicants appeal the stop order. Counsel requests adjournment of the hearing, but the Subdivision and Appeal Board of the Municipal District of Bonnyville No 87 (the “SDAB”) declines – leaving Ms. Money to represent herself. The SDAB finds against the Applicants without providing written reasons.

The Applicants (Cheryl Money, Lillian Hankey, and Delmar Hankey) seek permission under ss. 688(3) of the Alberta Municipal Government Act to appeal the decision of the SDAB.

Ms. Money (who owns one of the cabins) says the SDAB erred in three respects:

  • denying her procedural fairness in refusing her request to adjourn the hearing;
  • failing to provide adequate reasons for her decision; and
  • basing its decision to uphold the stop order on an incorrect or unreasonable interpretation of “dwelling” in the land use Bylaw.

Brown J.A. (now of the S.C.C.), of the Alberta Court of Appeal grants permission to appeal on the first two grounds, but finds there is no reasonable prospect of success on the third.

Importance:

Procedural Fairness

An administrative decision maker’s refusal to grant an adjournment is a question of law. The Court must determine whether an adjournment is necessary to give the parties reasonable opportunity to present their case.

The Applicants argued they were deprived an opportunity to be represented by counsel at the hearing. The Respondent replied that, unless it could be shown the adjournment decision actually affected the outcome, there was no chance of success on this ground.

Citing Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, Brown J.A. reminded future courts that analysis of the duty of fairness is ‘context specific’. The Alberta Court of Appeal was satisfied the Applicant had a reasonable prospect of success on this ground of appeal (met the test under ss. 688(3) of the Municipal Government Act).

 

Inadequate Reasons

Ss. 687(2) of the Municipal Government Act requires that the SDAB provide written reasons for its decision. The Applicants received the following:

“Motioned … to uphold the stop work order as the Board has not heard sufficient evidence to counter the stop order.”

Brown J.A. found ‘inadequate reasons’ not to be a stand-alone ground of appeal from an administrative tribunal (citing at para 14, Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII)). Yet, in the present case, he was impressed by the suggestion that the SDAB’s motion represented a ‘complete failure’ to give written reasons. As such, Brown J.A. found the Applicants had met the test at ss. 688(3) of the Municipal Government Act – there was a reasonable prospect of success on this ground.

Dwelling

The Applicant contended that her cabin was not a “dwelling” as per the definition found in the Bylaw. Here Brown J.A. found no basis on the record to attribute the Applicant’s interpretation of “dwelling” (that to qualify as such, the cabin must have cooking, eating, or sanitary facilities). The Court found no reasonable prospect of success on this ground – no evidence to support Ms. Money’s claim that no bathroom or kitchen facilities were present at the cabin.

Concluding Thoughts:

Brown J.A. chose to use the more general and neutral term ‘building’ when referring to the structures in question – a great lesson and reminder of the important role strategic language selection plays in framing legal argument. Here, the Alberta Court of Appeal adopted a dispassionate objective stance. Rather than intervene and make a determination in favour of the Applicant, the Court prefers that, should SDAB grant the appeal and reconsider the matter, Applicant’s counsel is then given the opportunity to present evidence as to the legal status of the cabin. This effectively downloads the decision to the SDAB – a distinctly ‘hands off’ approach.

Counsel for the Applicants: Janice Agrios Q.C. (Kennedy Agrios LLP, Edmonton)

Counsel for the Respondent: Daina Young (Reynolds Mirth Richards & Farmer LLP, Edmonton)

Discuss on CanLii Connects

Posted: Wednesday, August 19, 2015