Bowen v. Edmonton (City), (1977) 3 A.R. 63 (CA)

• Judge: McGillivray, C.J.A., Clement and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 28, 1977
• Citations: (1977), 3 A.R. 63 (CA)

Bowen v. Edmonton (1977), 3 A.R. 63 (CA)

MLB headnote and full text

Bowen v. The Council of the City of Edmonton

Indexed As: Bowen v. Edmonton (City)

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., Clement and Morrow, JJ.A.

February 28, 1977.

Summary:

This case arose out of an application for a development permit to construct a social club in the appellant's immediate neighbourhood by the Edmonton Firefighters' Social Club. A development permit was refused by a Development Officer. The Social Club appealed to the Development Appeal Board under s. 121(1) of the Planning Act, R.S.A. 1970, c. 276. The hearing of the appeal was a public one. A neighbourhood association opposed the granting of a permit to the Social Club. The appellant was a property owner and resident of the neighbourhood and a member of the neighbourhood association. The appellant, however, was not at the hearing. After hearing those who wanted to be heard the Board withdrew privately to make its decision. It returned to the meeting to announce that the appeal had been dismissed and the permit would not issue. After those present left, however, the Board reconsidered, allowed the appeal and granted the permit. Notice of the decision was mailed to those who participated at the meeting. The appellant appealed.

The Alberta Court of Appeal dismissed the appeal. The Court of Appeal held that, since the Board did not render its decision until it was reduced to writing and communicated to interested parties, the Board was within its rights in reconsidering and reversing its disposition of the appeal in the way that it did - see paragraphs 7 to 11.

The Court of Appeal held that the appellant was a person affected by the development and was entitled to appeal under ss. 128(4) and 146(2) of the Planning Act, although she was not at the appeal hearing and received no notice of the decision - see paragraphs 12 to 14.

Administrative Law - Topic 542

The hearing - Decisions of the tribunal - What constitutes a decision - After a public hearing of an applicant's controversial appeal from the refusal of the issue of a development permit, the Development Appeal Board announced to those who participated at the hearing that the appeal was dismissed and the permit refused - After the people at the hearing left, the Board reconvened, changed its disposition of the appeal and ruled that the permit should issue - Section 128(6)(b) of the Planning Act, R.S.A. 1970, c. 276, provided that the Board's decision be rendered in writing - The Alberta Court of Appeal held that the Board was within its rights in changing its disposition of the appeal before its decision was put in writing and communicated to the parties - See paragraphs 7 to 11.

Administrative Law - Topic 553

The hearing - Decisions of the tribunal - Effective date of decision - The Development Appeal Board voted on December 11, 1975, to allow an applicant's appeal and issue it a development permit - On January 12, 1976, a notice of the decision was issued to interested parties and received by an agent of the appellant on January 16 - Section 148(6)(b) of the Planning Act, R.S.A. 1970, c. 276, provided that the Board's decision be rendered in writing - The Alberta Court of Appeal held that the decision was rendered in writing to the appellant's agent on January 16 and that the 30 day appeal period began to run from that date - See paragraphs 7 to 10.

Administrative Law - Topic 557

The hearing - Decisions of the tribunal - Persons entitled to receive a decision or notice thereof - Planning Act, R.S.A. 1970, c. 276, ss. 128(4), 146(2) - The appellant appealed from a decision of the Development Appeal Board, which granted a development permit for development in the neighbourhood in which the appellant was a property owner and resident - The appellant was not present at the hearing of the appeal, but a neighbourhood association, of which the appellant was a member, was present - The Alberta Court of Appeal held that under ss. 128(4) and 146(2) of the Planning Act, the appellant was a person affected by the development and was entitled to notice of the decision - See paragraph 9.

Administrative Law - Topic 1220

Classification of power or function - Functions classified as quasi-judicial - Appeal respecting municipal land use permit - The Alberta Court of Appeal held that the hearing of an appeal concerning the issuance of a development permit under the Planning Act, R.S.A. 1970, c. 276, by the Development Appeal Board was a quasi-judicial function - See paragraph 11.

Administrative Law - Topic 6105

Judicial review - Statutory appeal - Persons with status to appeal - The appellant appealed from a decision of the Development Appeal Board, which granted a development permit for development in the neighbourhood in which the appellant was a property owner and resident - The appellant was not present at the hearing of the appeal, but a neighbourhood association, of which the appellant was a member, was present - The Alberta Court of Appeal held that under ss. 128(4) and 146(2) of the Planning Act, the appellant was a person affected by the development and was entitled to appeal - The Court of Appeal stated in any event that the neighbourhood association was the appellant's agent at the meeting, which gave her status to appeal - See paragraphs 12 to 14.

Administrative Law - Topic 6108

Judicial review - Statutory appeal - Commencement of time in which to appeal - Persons with status to appeal, but who do not receive notice of decision - The Development Appeal Board rendered a decision on the issuance of a development permit under the Planning Act, R.S.A. 1970, c. 276 and gave notice of the decision to persons who participated in the appeal hearing - The appellant sought leave to appeal from the Board's decision, although she was not at the appeal hearing and received no notice of the decision - The Alberta Court of Appeal held that the appellant was a person affected by the development and was entitled to appeal under ss. 128(4) and 146(2) of the Planning Act - The Alberta Court of Appeal held that the 30 day period in which to appeal started to run with respect to the appellant at the same time as for those who did receive notice of the decision - See paragraph 14.

Time - Topic 704

Computation of time - Beginning of fixed period - Interpretation Act, R.S.A. 1970, c. 189, s. 18(1)(k) - A decision of the Development Appeal Board under the Planning Act, R.S.A. 1970, c. 276, was rendered on January 16 - A 30 day appeal period was provided under s. 146(2) of the Planning Act - The Alberta Court of Appeal held that the appeal period began to run on January 17 and expired on February 15 - See paragraph 10.

Time - Topic 2547

Days - Sundays and holidays - Performance of judicial acts on Sundays - Interpretation Act, R.S.A. 1970, c. 189, ss. 18(2), 21(1)(11) - A limitation period for an appeal from a decision of the Development Appeal Board under the Planning Act, R.S.A. 1970, c. 276, expired on a Sunday - The Alberta Court of Appeal held that under ss. 18(2) and 21(1)(11) of the Interpretation Act the appeal period expired on the Monday following - See paragraph 10.

Cases Noticed:

Macri v. The Council of the City of Edmonton (1976), 2 A.R. 378, refd to. [para. 7].

United Association of Journeymen etc. v. Board of Industrial Relations et al., [1975] 2 W.W.R. 470, consd. [para. 8].

Actus Management Ltd. v. Calgary, [1975] 6 W.W.R. 739, folld. [para. 13].

Statutes Noticed:

Interpretation Act, R.S.A. 1970, c. 189, sect. 18(1)(k), sect. 18(2), sect. 21(1)(11) [para. 10].

Planning Act, R.S.A. 1970, c. 276, sect. 3 [para. 13]; sect. 109(1), sect. 126(6) [para. 8]; sect. 128(1) [para. 4]; sect. 128(4)(c) [paras. 4, 13]; sect. 146(2) [para. 7].

Counsel:

D.G. Finlay, for the appellant;

C.E. Frost, for the Council of the City of Edmonton.

This case was heard before McGILLIVRAY, C.J.A., CLEMENT and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On February 28, 1977, CLEMENT, J.A., delivered the following judgment of the Appellate Division: