Altemeyer v. Winnipeg (City) et al., 2016 MBCA 86

• Judge: MacInnes, Beard and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 09, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 86;(2016), 330 Man.R.(2d) 306 (CA)

Altemeyer v. Winnipeg (2016), 330 Man.R.(2d) 306 (CA);

      675 W.A.C. 306

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. SE.028

Jennifer Altemeyer (applicant/appellant) v. City of Winnipeg and West Broadway Development Corporation (respondents/respondents)

(AI 15-30-08520; 2016 MBCA 86)

Indexed As: Altemeyer v. Winnipeg (City) et al.

Manitoba Court of Appeal

MacInnes, Beard and Pfuetzner, JJ.A.

September 9, 2016.

Summary:

Altemeyer, self-represented, applied for judicial review respecting a variance order granted by the City of Winnipeg in relation to a vacant lot used as a community garden for over 20 years. The property was owned by West Broadway Development Corp. (WBDC), a not-for-profit organization. Altemeyer moved for an interlocutory injunction, a Mareva injunction, and an Anton Piller order/injunction, pending a decision on the merits.

The Manitoba Court of Queen's Bench, in a decision reported at 325 Man.R.(2d) 7, dismissed the motion. Regarding the request for an interlocutory injunction, the Court found that there was no serious question to be tried, Altemeyer had not suffered, nor would suffer, irreparable harm if the injunction were not granted, and the balance of convenience favoured WBDC. The Court also found that there was no basis for granting either a Mareva injunction or an Anton Piller order/injunction. Altemeyer appealed. She challenged certain inquiries and comments made by the judge in the course of the hearing, and the sufficiency of the reasons for judgment.

The Manitoba Court of Appeal, in a decision reported at 330 Man.R.(2d) 180; 675 W.A.C. 180, dismissed the appeal. Altemeyer moved for an order for the rehearing of her appeal, pursuant to Court of Appeal Rule 46.2.

The Manitoba Court of Appeal dismissed the motion.

Courts - Topic 2109

Jurisdiction - Appellate jurisdiction - Reconsideration of decisions - [See Practice - Topic 9136 ].

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - The applicant sought judicial review of the by-laws and rezoning order issued by the respondent City in respect of a vacant lot used as a community garden for over 20 years - The property was owned by the respondent "WBDC", a not-for-profit organization - The applicant also moved for interlocutory injunctive relief against WBDC to prevent the conversion of the garden - The motion was dismissed - The motion judge found that there was no serious question to be tried, the applicant had not suffered, nor would suffer, irreparable harm if the injunction were not granted, and the balance of convenience favoured WBDC - The applicant's appeal was dismissed - She now moved for rehearing of the appeal, pursuant to Court of Appeal Rule 46.2 - The Manitoba Court of Appeal dismissed the motion - The underlying decision denying injunctive relief was a discretionary decision of a motion judge for which the standard of review for intervention by an appellate court was one of significant deference - There was no error on the part of the motion judge and no basis upon which to interfere with his decision - The materials filed by the applicant on her motion for a rehearing were fundamentally a reiteration of the arguments on the substantive appeal - "[T]he rehearing of an appeal is a remedy rarely granted. There is nothing in the materials filed by the applicant that would demonstrate exceptional circumstances sufficient to meet the heavy burden required in order to justify an order for rehearing."

Counsel:

J. Altemeyer, on her own behalf;

J.S. Michaels, for the respondent, West Broadway Development Corp.;

M. Muller, on a watching brief for the City of Winnipeg.

This motion was heard before MacInnes, Beard and Pfuetzner, JJ.A., of the Manitoba Court of Appeal. The Court delivered the following judgment and reasons, dated September 9, 2016.