Hechter et al. v. Winnipeg (City) et al., 2004 MBCA 142

• Judge: Scott, C.J.M., Monnin and Steel, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 28, 2004
• Jurisdiction: Manitoba
• Citations: 2004 MBCA 142;(2004), 190 Man.R.(2d) 22 (CA)

Hechter v. Winnipeg (2004), 190 Man.R.(2d) 22 (CA);

    335 W.A.C. 22

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. OC.018

Lenore Hechter, Dorothy Lynch, Carol Billett, Allen Mills, William Crook, Norma Cameron, Carl Epp, Madeleine Enns, Jeannie Urbanski, Kathleen Leathers, Winston Leathers, Martin Eva and Audrey Stuart (applicants/appellants) and Max Kantor and Mireille Kantor (applicants) v. The City of Winnipeg, City Centre Community Committee, 4199490 Manitoba Ltd. and Jeffrey Badger (respondents/respondents)

(AI 04-30-05865; 2004 MBCA 142)

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

Manitoba Court of Appeal

Scott, C.J.M., Monnin and Steel, JJ.A.

June 28, 2004.

Summary:

The applicants sought judicial review of a series of decisions made by a city respecting the rezoning and development of a property to allow for a condominium.

The Manitoba Court of Queen's Bench, in a decision reported at 183 Man.R.(2d) 77, dismissed the application. The applicants appealed.

The Manitoba Court of Appeal dismissed the appeal.

Land Regulation - Topic 2619.1

Land use control - Zoning bylaws - Enactment and interpretation - Rezoning application - Requirements - In 2000, a city passed a bylaw rezoning a property as a "RM-L" multiple-family residential district to allow for the development of a six-unit condominium building - The property owner did not proceed and sold the property - The new owner successfully sought to increase the number of dwelling units - On judicial review, the applicants (neighbours) argued that the bylaw lapsed when the specific development which was approved did not proceed - The application judge rejected the argument - The city did not intend the bylaw to lapse if the project envisaged by the former owner did not proceed - The Manitoba Court of Appeal held that the application judge did not err - See paragraphs 38 to 43.

Land Regulation - Topic 3007

Land use control - Development agreements - General - Validity of - In 2000, a city passed a bylaw rezoning a property as a "RM-L" multiple-family residential district which permitted the construction of eleven dwelling units on a property - Council made the passage of the bylaw conditional upon the owner entering into a "zoning agreement" stipulating that, inter alia, no more than six residential units would be located on the land - The applicants (neighbours) challenged the bylaw and zoning agreement - They argued that the city only had jurisdiction or authority to regulate the density (i.e., the number of dwelling units permitted on the property) of the property by way of bylaw and had no authority to alter the density by enacting a development bylaw rezoning the property to RM-L and then restricting the allowable number of dwelling units by way of a zoning agreement - The application judge rejected the argument - Section 591(1)(a) of the City of Winnipeg Act gave the city authority to regulate density by way of a development agreement - The zoning agreement constituted a development agreement within the meaning of s. 591(1) as it was an agreement respecting the development - It limited the "use of the land" within the new zoning classification - The Manitoba Court of Appeal dismissed the applicants' appeal - The phrase "use of land" in s. 591(1) was intended to have a broad and general meaning and it included the concept of density - See paragraphs 22 to 37.

Land Regulation - Topic 3007

Land use control - Development agreements - General - Validity of - In 2000, a city passed a bylaw rezoning a property as a "RM-L" multiple-family residential district which permitted the construction of eleven dwelling units on a property - Council made the passage of the bylaw conditional upon the owner entering into a "zoning agreement" (development agreement) stipulating that no more than six residential units would be located on the land - The property owner entered into the agreement but did not proceed and sold the property - The city agreed to allow the new owner to increase the number of dwelling units - On judicial review, the applicants (neighbours) argued that the city had no jurisdiction or authority to consider an application to amend the zoning agreement without a corresponding application for the adoption of a development bylaw in accordance with ss. 591(1) and 629(1) of the City of Winnipeg Act - The application judge rejected the argument - The Manitoba Court of Appeal dismissed the applicants' appeal - The right to enter into an agreement implicitly carried with it the right to rescind or amend the agreement - The express language of s. 591(1) did not make the city's authority to enter into development agreements contingent upon the adoption of a zoning bylaw - See paragraphs 44 and 45.

Land Regulation - Topic 3007

Land use control - Development agreements - General - Validity of - In 2000, a city (Winnipeg) passed a bylaw rezoning a property as a "RM-L" multiple-family residential district which permitted the construction of eleven dwelling units on a property - Council made the passage of the bylaw conditional upon the owner entering into a "zoning agreement" (development agreement) stipulating that no more than six residential units would be located on the land - The property owner entered into the agreement but did not proceed and sold the property - The city agreed to amend the agreement to allow the new owner to increase the number of dwelling units to eight - On judicial review, the applicants (neighbours) argued that there was no authority for the process which was followed by the city to amend the zoning agreement - The City of Winnipeg Act did not set out the procedure to be followed - The city had developed the practice of requiring the applicant to follow the same public hearing process pursuant to which the agreement was originally approved - The Manitoba Court of Appeal held that the procedure to amend the development agreement adopted by the City was fair to third parties and was not inconsistent with the Act, even though the procedure might not be the same as that followed for passage of bylaws - See paragraph 46.

Land Regulation - Topic 3007

Land use control - Development agreements - General - Validity of - In 2000, a city passed a bylaw rezoning a property as a "RM-L" multiple-family residential district which permitted the construction of eleven dwelling units on a property - Council made the passage of the bylaw conditional upon the owner entering into a "zoning agreement" (development agreement) stipulating that no more than six residential units would be located on the land - The property owner entered into the agreement but did not proceed and sold the property - The city agreed to amend the agreement to allow the new owner to increase the number of dwelling units to eight (the new owner had wanted 10 units) - On judicial review, the applicants argued that the city's City Centre Community Committee acted without jurisdiction by amending the application to increase the density from six units to eight instead of to ten without an adjournment - The application judge rejected the argument - The Committee had authority under s. 642(1) of the City of Winnipeg Act to approve the application on condition that the number of units be decreased to eight - This change was not a material change which warranted an adjournment - The applicants' arguments against the proposed development would have been no different whether the application was for eight units or ten units as they were opposed to any increase in density - They were not prejudiced - The Manitoba Court of Appeal dismissed the applicants' appeal - See paragraphs 51 to 55.

Municipal Law - Topic 375

Councils - Meetings - Procedure - When action or proceeding respecting matter pending - The applicants argued that the City Centre Community Committee of Winnipeg City Council acted without jurisdiction by holding a special meeting to approve site plans and by hearing representations and approving site plans for a proposed development after the applicants' notice of judicial review application had been filed and served on the city - Rule 54.9 of the Procedure Bylaw provided that "neither the Council, a committee of Council or a sub-committee thereof, shall hear any delegation or representation with respect to a matter ... which is presently the subject of any action or proceedings of which the City or any of its Boards or Commission is a party or may be directly or indirectly affected" - The Manitoba Court of Appeal held that the purpose of rule 54.9 was to ensure that the city did not adjudicate on matters which were also before the courts, not to prevent the city from completing administrative tasks respecting property - The consideration of the site plans was not a "matter" which was subject to legal proceedings at the time - The approval of site plans did not require a public hearing - Their approval was an administrative task intended to implement the Community Committee's decision, as opposed to affording the interested parties another opportunity to argue their position - See paragraphs 56 to 65.

Municipal Law - Topic 3810

Bylaws - Quashing bylaws - General - Jurisdiction - [See first Land Regulation - Topic 3007 ].

Municipal Law - Topic 3860

Bylaws - Quashing bylaws - Grounds for judicial interference - Unauthorized by empowering statute - [See first Land Regulation - Topic 3007 ].

Cases Noticed:

Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2003 SCC 13, refd to. [para. 13].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 13].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 13].

Scarborough (Township) v. Bondi, [1959] S.C.R. 444, refd to. [para. 25].

Mississauga Golf and Country Club Ltd., Re (1963), 40 D.L.R.(2d) 673 (C.A.), refd to. [para. 25].

Rocky View No. 44 (Municipal District) v. Herron Estate, [2000] A.R. Uned. 465; 2001 ABCA 63, dist. [para. 28].

Foothills No. 31 (Municipal District) v. Alberta Planning Board and Wilson (1984), 55 A.R. 6; 33 Alta. L.R.(2d) 181 (C.A.), dist. [para. 28].

Lambert v. Whistler (Resort Municipality) et al., [2004] B.C.T.C. 342; 46 M.P.L.R.(3d) 203; 2004 BCSC 342, additional reasons 2004 BCSC 391, dist. [para. 28].

British Columbia (Capital Regional District) v. Saanich (District) et al. (1980), 115 D.L.R.(3d) 596 (B.C.S.C.), dist. [para. 28].

Jacques et al. v. Alexander (Local Government District) et al. (1996), 109 Man.R.(2d) 223 (Q.B.), dist. [para. 28].

Fischer v. Van Dusen et al., [1997] B.C.T.C. Uned. 160; 38 M.P.L.R.(2d) 68 (S.C.), dist. [para. 28].

Jacques et al. v. Alexander (Local Government District) et al. (1996), 116 Man.R.(2d) 164, additional reasons to 109 Man.R.(2d) 223 (Q.B.), refd to. [para. 43].

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine (Village) (2004), 323 N.R. 1; 241 D.L.R.(4th) 83; 2004 SCC 48, refd to. [para. 47].

Bojkovic v. Winnipeg (City) (2001), 155 Man.R.(2d) 110; 2001 MBQB 99, refd to. [para. 49, footnote 1].

Woodhaven Homeowners' Association v. Winnipeg (City) (1998), 128 Man.R.(2d) 65 (Q.B.), refd to. [para. 54].

Save The Eaton's Building Coalition v. Winnipeg (City) et al. (2001), 158 Man.R.(2d) 46; 2001 MBQB 206, affd. (2001), 160 Man.R.(2d) 236; 262 W.A.C. 236; 2001 MBCA 186, refd to. [para. 60].

Kirkfield Park & Arthur Oliver Residents Association Inc. v. Winnipeg (City) et al. (1995), 103 Man.R.(2d) 256 (Q.B.), affd. (1996), 107 Man.R.(2d) 259; 109 W.A.C. 259 (C.A.), refd to. [para. 65].

Statutes Noticed:

City of Winnipeg Act, S.M. 1989-90, c. 10, sect. 591(1) [para. 23].

Winnipeg (City) Bylaws, City of Winnipeg Procedure Bylaw, Bylaw No. 5400/90, rule 54.9 [para. 57].

Counsel:

E.B. Eva, for the appellants;

M.S. Samphir and J.G. Carter, for the respondents, The City of Winnipeg and City Centre Community Committee;

K.J. Ferbers and N.M. Watson, for the respondents, 4199490 Manitoba Ltd. and J. Badger.

This appeal was heard on June 23, 2004, before Scott, C.J.M., Monnin and Steel, JJ.A., of the Manitoba Court of Appeal.

The following judgment was delivered for the court by Steel, J.A., on June 28, 2004, with written reasons on October 6, 2004.