Atkins et al. v. Calgary (City), (1994) 162 A.R. 97 (CA)

• Judge: Harradence, Kerans and Foisy, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 01, 1994
• Citations: (1994), 162 A.R. 97 (CA)

Atkins v. Calgary (1994), 162 A.R. 97 (CA);

    83 W.A.C. 97

MLB headnote and full text

Jo Anne Atkins, Jack MacCalder, James Wilson and Gary E. Thompson (appli­cants/appellants) v. City of Calgary and Dalhousie Station Limited (respondents/respondents)

Raymond A. Mireault and Carl Hannigan (applicants/appellants) v. The City of Calgary and Dalhousie Sta­tion Limited (respondents/respondents)

(Appeal Nos. 14932 and 14923)

Indexed As: Atkins et al. v. Calgary (City)

Alberta Court of Appeal

Harradence, Kerans and

Foisy, JJ.A.

December 1, 1994.

Summary:

The City of Calgary rezoned 37 acres of land in the city for, inter alia, a shopping centre. Several citizens applied to quash the rezoning bylaw on several grounds.

The Alberta Court of Queen's Bench, in a decision reported 148 A.R. 81, dismissed the application to quash. The citizens appealed.

The Alberta Court of Appeal dismissed the appeal.

Administrative Law - Topic 1009

Classification of power or function - General principles - Judicial and legisla­tive powers distinguished - The Alberta Court of Appeal reviewed when a municipal decision making process respecting the enactment and amendment of land use bylaws is judicial in nature and when it is legislative in nature - The court discussed the requirement to act on sound planning principles, the right to a hearing, when a hearing should be inclus­ive and the rules respecting conflict of interest - See para­graphs 7 to 24.

Administrative Law - Topic 1264

Classification of power or function - Powers or functions classified as legisla­tive - Municipal bylaws - [See first Municipal Law - Topic 3404 ].

Land Regulation - Topic 2002

Land use control - General principles - Scheme of legislation - [See Land Regu­lation - Topic 2003 ].

Land Regulation - Topic 2003

Land use control - General principles - Application of legislation - The City of Calgary rezoned a 37 acre parcel of land for, inter alia, a shopping centre - Several citizens attacked the rezoning, asserting that council forced one of the land owners to sell at a lower price by deferring the third reading of a land redesignation sought by the owner - The Alberta Court of Appeal rejected the theory of improper influence, but stated that a bargain price was not relevant to sound planning prin­ciples as expressed under s. 2 of the Planning Act - See paragraphs 25 to 30.

Municipal Law - Topic 386

Councils - Meetings - Public hearings - Reasonable opportunity to be heard - [See first Municipal Law - Topic 3404 ].

Municipal Law - Topic 905

Council members - Conflicts of interest - Reasonable apprehension of bias - The City of Calgary rezoned a 37 acre parcel of land for, inter alia, a shopping centre - The citizens who attacked the rezoning submitted that there were conflicts of interest and a reasonable apprehension of bias - One of the councillors had pur­chased a car from the president of the developer's consultant - The same coun­cillor had a daughter who worked for a company associated with an interested party - Several councillors had attended a "celebratory party" hosted by the developer's consultant - The Alberta Court of Appeal affirmed that such conduct did support a finding of a conflict of interest or apprehension of bias - See paragraphs 36 to 40.

Municipal Law - Topic 908

Council members - Conflicts of interest - Pecuniary interest - The City of Calgary rezoned a parcel of land for, inter alia, a shopping centre - Early in the process, a councillor disqualified himself because his daughter worked for a corporation associ­ated with an interested party - Some months later he announced that he believed that he was no longer disqualified - No reasons were provided for the belief - The councillor voted for the rezoning - Citi­zens challenged the rezoning, asserting that the councillor had a conflict of interest - The Alberta Court of Appeal rejected the assertion and affirmed that the councillor did not have a pecuniary interest in the rezoning for purposes of s. 30 of the Municipal Government Act - See para­graph 37.

Municipal Law - Topic 1409

Powers of municipalities - General prin­ciples - Legislative power defined - [See Administrative Law - Topic 1009 and first Municipal Law - Topic 3404 ].

Municipal Law - Topic 1410

Powers of municipalities - General prin­ciples - Judicial power defined - [See Administrative Law - Topic 1009 ].

Municipal Law - Topic 3404

Bylaws - Enactment - Public hearing - Duty of fairness - The City of Calgary rezoned a parcel of land for, inter alia, a light rail transit system - Several citizens attacked the rezoning, asserting that the city breached their right to a fair hearing by receiving private submissions from interested parties - Alternatively, the citizens asserted that those who had been lobbied did not tell other interested parties what had been said preventing them from replying - The Alberta Court of Appeal rejected the submission, where the para­mount issue was a legislative and policy question respecting the implementation of a transportation policy - Councillors should be free to follow traditional politics provided that they not close their minds utterly to a contrary view until everybody who wants to be heard has been heard - See paragraphs 32 to 34.

Municipal Law - Topic 3404

Bylaws - Enactment - Public hearing - Duty of fairness - The City of Calgary rezoned a parcel of land for, inter alia, a light rail transit system - Several citizens attacked the rezoning, asserting that newly elected councillors should not have par­ticipated in the key decisions, because they had not participated in all the hearings that occurred before the election - The Alberta Court of Appeal rejected the assertion - The duty of fairness required that the newly elected councillors informed them­selves which the councillors claimed they did - See paragraph 35.

Cases Noticed:

Dalhousie Station Ltd. et al. v. Calgary (City) (1991), 123 A.R. 203; 83 Alta. L.R.(2d) 228 (Q.B.), refd to. [para. 2].

Atkins et al. v. Calgary (City) (1994), 148 A.R. 81; 16 Alta. L.R.(3d) 429 (Q.B.), refd to. [para. 5].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; [1991] 2 W.W.R. 145; 75 D.L.R.(4th) 385, consd. [para. 9].

Dallinga v. Calgary (City) (1975), 62 D.L.R.(3d) 433 (Alta. C.A.), refd to. [para. 10].

Hutterian Brethren Church of Starland v. Starland No. 47 (Municipal District) (1993), 135 A.R. 304; 33 W.A.C. 304; 9 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 10].

Campeau Corp. v. Calgary (City) (1978), 12 A.R. 31; 7 Alta. L.R.(2d) 294 (C.A.), folld. [para. 11].

Tegon Developments Ltd. et al. v. Edmonton (City) et al. (1977), 8 A.R. 384; 81 D.L.R.(3d) 543 (C.A.), refd to. [para. 11].

Hartel Holdings Co. v. Calgary (City), [1984] 1 S.C.R. 337; 53 N.R. 149; 53 A.R. 175, refd to. [para. 11].

Campeau Corp. v. Calgary (City) et al. (1980), 22 A.R. 572; 112 D.L.R.(3d) 737; 12 Alta. L.R.(2d) 379 (C.A.), refd to. [para. 11].

Jones et al. v. Delta (Municipality) et al., [1992] 6 W.W.R. 1; 14 B.C.A.C. 241; 26 W.A.C. 241; 11 M.P.L.R.(2d) 1 (C.A.), apprvd. [para. 14].

Hoyda v. Edmonton (City) (1979), 18 A.R. 215 (Dist. Ct.), consd. [para. 15].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 19].

Wiswell v. Metropolitan Winnipeg (Municipality), [1965] S.C.R. 512, refd to. [para. 22].

Save St. Ann's Academy Coalition et al. v. Victoria (City) et al. (1991), 2 B.C.A.C. 296; 5 W.A.C. 296; 5 M.P.L.R.(2d) 331 (C.A.), refd to. [para. 23].

Brentwood Lakes Golf Course v. Central Saanich (District) (1991), 6 M.P.L.R.(2d) 1 (B.C.S.C.), refd to. [para. 23].

Mariano v. Mississauga (City) (1992), 55 O.A.C. 68; 90 D.L.R.(4th) 104 (Div. Ct.), refd to. [para. 23].

Bridgeland Riverside Community Associ­ation v. Calgary (City) and Patricia Investments Ltd. (1982), 37 A.R. 26; 135 D.L.R.(3d) 724; 19 Alta. L.R.(2d) 361 (C.A.), refd to. [para. 27].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, generally [paras. 4, 5].

Municipal Government Act, R.S.A. 1980, c. M-26, sect. 30, sect. 31 [para. 24].

Planning Act, R.S.A. 1980, c. P-9, sect. 2 [para. 13]; sect. 139 [para. 14]; sect. 140 [para. 16].

Authors and Works Noticed:

Mascarin, John, Tolerance for the Biased Municipal Councillor: The Amenable to Persuasion Test (1991), 2 M.P.L.R.(2d) 322, generally [para. 23].

O'Connor, M. Rick, Bias and the Open-Minded Councillor (1993), 11 M.P.L.R.(2d) 250, generally [para. 23].

Counsel:

P.R. Mack, for the appellants;

Craig R. Meyers, for the respondent, Calgary (City);

Neil C. Wittmann, Q.C., and Eric P. Groody, for the respondent, Dalhousie Station Ltd.

This appeal was heard before Harradence, Kerans and Foisy, JJ.A., of the Alberta Court of Appeal.

On December 1, 1994, Kerans, J.A., delivered the following reasons for judgment for the Court of Appeal.