O'Hanlon v. Foothills No. 31, (1979) 17 A.R. 477 (CA)

• Judge: Clement, Haddad and Laycraft, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 07, 1979
• Jurisdiction: Alberta
• Citations: (1979), 17 A.R. 477 (CA)

O'Hanlon v. Foothills No. 31 (1979), 17 A.R. 477 (CA)

MLB headnote and full text

O'Hanlon and O'Hanlon v. Municipal District of Foothills Number 31

Indexed As: O'Hanlon and O'Hanlon v. Foothills No. 31 (Municipal District)

Alberta Court of Appeal

Clement, Haddad and Laycraft, JJ.A.

September 7, 1979.

Summary:

This case arose out of an application for a development permit for a feedlot. Over the objections of opponents of the feedlot a Development Appeal Board affirmed the issue of a development permit without giving written fact findings or reasons as required by s. 83(2)(b) of the Planning Act, S.A. 1977, c. 89. The opponents of the development sought leave to appeal on the ground of the Board's failure to give written reasons and also on other substantive grounds. A judge of the Alberta Supreme Court granted leave to appeal on the substantive grounds, but refused leave to appeal on the ground of the failure to give reasons. The opponents appealed from the failure to grant leave on the ground of the Board's failure to give reasons.

The Alberta Court of Appeal allowed the appeal and remitted the matter to the Development Appeal Board for rehearing. The Court of Appeal held that consideration of the validity of the substantive grounds of appeal was impossible without knowing the fact findings and reasons for the decision of the Development Appeal Board.

Administrative Law - Topic 543

Hearing and decision - Form and content of decision of tribunal - Requirement of written reasons for decision - Planning Act, S.A. 1977, c. 89, s. 83(2)(b) - A Development Appeal Board approved the development of a feedlot without making written findings of fact or reasons as required by s. 83(2)(b) - Opponents of the development appealed on the grounds of the Court's failure to give written reasons, its consideration of irrelevant evidence and its failure to comply with the regional plan - The Alberta Court of Appeal allowed the appeal and ordered a re-hearing - The Court of Appeal held that the failure to state written findings of fact and reasons rendered it impossible for the Court of Appeal to determine the validity of the other grounds of appeal - See paragraphs 2 to 18.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status of board to appear before courts, when its decisions are under judicial review - The Alberta Court of Appeal held that under s. 146(4) of the Planning Act, S.A. 1977, c. 89, a municipal district was entitled to appear on an appeal from a decision of its Development Appeal Board, because the decision of the Development Appeal Board was not a decision of the municipal council - See paragraphs 8 to 10.

Administrative Law - Topic 9112

Boards and tribunals - Judicial review - Review of decision based on irrelevant evidence - The Alberta Court of Appeal held that the consideration of irrelevant evidence by a tribunal was not necessarily fatal unless the tribunal was influenced by the irrelevant evidence - See paragraph 11.

Practice - Topic 8804

Appeals - Duty of appeal court regarding discretionary orders of judge below - A Development Appeal Board permitted the development of a feedlot without giving written fact findings or reasons as required by s. 83(2)(b) of the Planning Act, S.A. 1977, c. 89 - Opponents of the development appeal ed on the ground of the Board's failure to give reasons and also on other substantive grounds - A judge of the Alberta Supreme Court refused leave to appeal on the ground of the failure to give reasons, but allowed leave to appeal on the substantive grounds - It was submitted that the judge's discretionary refusal of leave should not be disturbed - The Alberta Court of Appeal allowed the opponents' appeal from the refusal to grant leave for failure to give reasons, because consideration of the validity of the substantive grounds of appeal was impossible without knowing the reasons for the Board's decision - See paragraph 7.

Cases Noticed:

Couillard v. City of Edmonton (1979), 18 A.R. 31, appld. [para. 4].

Northwestern Utilities Limited v. City of Edmonton (1978), 12 A.R. 449, appld. [para. 4].

Macri v. City of Edmonton (1977), 2 A.R. 378; 2 A.L.R.(2d) 62, dist. [para. 7].

Re Smith & Hogan Ltd., [1931] S.C.R. 652, dist. [para. 7].

Re Smith, [1952] 2 D.L.R. 778, dist. [para. 7].

Osenton (Charles) & Co. v. Johnston (1941), 110 L.J.K.B. 420, appld. [para. 7].

Rozander v. E.R.C.B. (No. 2)(1979), 13 A.R. 479, appld. [para. 7].

Pacific Developments Ltd. v. Council of City of Calgary, [1973] 6 W.W.R. 406, appld. [para. 10].

City of Red Deer v. Council of City of Red Deer (1976), 2 A.R. 271, refd to. [para. 10].

Actus Management Ltd. v. Council of City of Calgary, [1975] 6 W.W.R. 739, appld. [para. 11].

Dalinga v. Council of City of Calgary, [1976] 1 W.W.R. 319, appld. [para. 11].

Sheckter v. Alberta Planning Board (1979), 14 A.R. 492, appld. [para. 12].

Harvie and Glenbow Ranching Limited v. Calgary Regional Planning Commission (1978), 12 A.R. 505, appld. [para. 13].

Statutes Noticed:

Planning Act, S.A. 1977, c. 89, sect. 2 [para. 13]; sect. 83(2)(b) [para. 3]; sect. 83(3)(a), sect. 83(3)(c) [para. 12]; sect. 146(4) [para. 10]; sect. 147(1) [para. 5].

Counsel:

H.S. Prowse, Q.C., for the appellants;

R. Kambeitz, for M.D. of Foothills No. 31;

A.D. MacLeod, for Western Feedlot Ltd.

This case was heard before CLEMENT, HADDAD and LAYCRAFT, JJ.A., of the Alberta Court of Appeal.

On September 7, 1979, CLEMENT, J.A., delivered the following judgment for the Court of Appeal: