Kane et al. v. Lac Pelletier No. 107 (Rural Municipality), 2009 SKQB 348

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 03, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 348;(2009), 342 Sask.R. 113 (QB)

Kane v. Lac Pelletier (2009), 342 Sask.R. 113 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. SE.028

Danny Kane, Shelley Dawson-Briere, Douglas Smith, Solange Godenir and Cecile Blanke (applicants) v. Rural Municipality of Lac Pelletier No. 107 (respondent)

(2008 Q.B. No. 78)

Danny Kane, Shelley Dawson-Briere, Douglas Smith, Solange Godenir and Cecile Blanke (applicants) v. Director of Community Planning (respondent)

(2008 Q.B. No. 79; 2009 SKQB 348)

Indexed As: Kane et al. v. Lac Pelletier No. 107 (Rural Municipality)

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

McIntyre, J.

September 3, 2009.

Summary:

The applicants (interested parties) sought various remedies against the Rural Municipality of Lac Pelletier No. 107 (RM) and the Director of Community Planning, in an effort to stop a resort development on the southwest corner of Lac Pelletier, a recreational area located within the RM. In particular, with respect to the RM, the applicants sought to quash two municipal amending bylaws relating to the rezoning of the land in question from agricultural use to resort use and two resolutions relating to the subdivision of the land and a servicing agreement. The applicants also sought mandamus to compel the RM to take proactive steps to stop any development until the developer obtained a development permit and to oppose an application by the developer to Fisheries and Oceans Canada for a permit to construct a back shore marina. The applicants also sought to quash a decision of the Director of Community Planning which granted a certificate of approval under the Planning and Development Act for a resort residential subdivision.

The Saskatchewan Court of Queen's Bench dismissed the applications. The applications against the RM were dismissed on account of undue delay by the applicants in pursuing the judicial review proceedings. The application against the Director was dismissed because the Director's decision to grant subdivision approval was reasonable (i.e., it was within the range of possible and acceptable outcomes).

Administrative Law - Topic 2442

Natural justice - Procedure - Notice - When required - A rural municipality passed amending bylaws rezoning certain land near a lake from agricultural to resort use - A developer acquired the land and applied to the Director of Community Planning for subdivision approval - The Director sent the application to the rural municipality for its comments and the Council expressed its approval of the subdivision - Thereafter, the Director issued a certificate of approval under the Planning and Development Act - The applicants applied for judicial review, claiming that the Director failed to provide notice of the subdivision application to persons that could be affected by the proposed subdivision (e.g., cottage owners or users of the lake) - The Saskatchewan Court of Queen's Bench stated that while s. 12(1)(a) of the Subdivision Regulations required the Director to send a copy of the application to the rural municipality and to request its comments, it was clearly a discretionary call on the part of the Director as to whether he would send copies of the application to other persons or agencies and request their comments - The Act was also clear that while the Director had to consider comments and resolutions submitted, he was not bound by them - The court concluded that the duty of fairness did not oblige the Director to provide a copy of the subdivision application to any of the applicants and seek their input - See paragraphs 60 to 70.

Administrative Law - Topic 3306

Judicial review - General - Bars - Delay - On July 11, 2006, a rural municipality passed amending bylaws to rezone certain land from agricultural to resort use - On May 8, 2007, Council passed a resolution consenting to a subdivision and on August 7, 2007, passed a resolution authorizing a service agreement - On September 4, 2008, interested parties applied for certiorari to quash the amending bylaws and resolution and sought mandamus to compel the rural municipality to take proactive steps to temporarily stop the development - The rural municipality alleged undue delay - The Saskatchewan Court of Queen's Bench dismissed the judicial review application - The court noted that this application was brought under Part 52 of the Queen's Bench Rules as opposed to s. 358 of the Municipalities Act (which contained a 60 day limitation period) - Therefore, rule 675 which codified the common law principles with respect to the timeliness of a judicial review applied - However, the 60 day statutory time limitation in s. 358 was a pertinent consideration when considering the timeliness of an application brought under the judicial review provisions of general application - The court held that there was undue delay in this case, stating that an application for judicial review in these circumstances should typically be brought in a matter of months and not years - In any event, the court was satisfied that granting certiorari, even if there were basis for relief, would cause substantial hardship or prejudice as well as be detrimental to good administration - Here the project was 85% complete and substantial monies had been expended - The court held that its ruling on undue delay applied also to the request for mandamus, and in any event, mandamus was not available where it was not shown that the rural municipality was under a legal duty to act as suggested - See paragraphs 32 to 46.

Administrative Law - Topic 3342

Judicial review - General - Practice - Limitation period - [See Administrative Law - Topic 3306 ].

Administrative Law - Topic 3553

Judicial review - Mandamus - Conditions precedent - Existence of duty - [See Administrative Law - Topic 3306 ].

Administrative Law - Topic 3584

Judicial review - Mandamus - Bars - Delay, inconvenience or expense - [See Administrative Law - Topic 3306 ].

Administrative Law - Topic 5186

Judicial review - Certiorari - Discretionary bars to issue of certiorari - Delay, inconvenience or expense - [See Administrative Law - Topic 3306 ].

Administrative Law - Topic 5261

Judicial review - Certiorari - Limitation period - General - [See Administrative Law - Topic 3306 ].

Administrative Law - Topic 7052

Judicial review - Bars - Statutory - Limitation period - [See Administrative Law - Topic 3306 ].

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown - Duty to consult - A rural municipality passed amending bylaws rezoning certain land near a lake from agricultural to resort use - A developer acquired the land and applied to the Director of Community Planning for subdivision approval - The Director sent the application to the rural municipality for its comments and the Council approved the subdivision - Thereafter, the Director issued a certificate of approval under the Planning and Development Act - The applicants, including a local Métis elder residing in the area, challenged the Director's decision on the basis that he failed to fulfil his duty of procedural fairness, including his duty to consult - The Métis elder did not purport to act in a representative capacity - The Saskatchewan Court of Queen's Bench, reviewing the consultation issue on the standard of correctness, held that since Métis rights were communal in nature, the proper applicant was the rights-bearing community itself or an individual member of the community in a representative capacity on behalf of all other members of the community - In any event, the Director did not have actual or constructive knowledge that Métis rights being asserted when he issued the subdivision approval - See paragraphs 47 to 59.

Indians, Inuit and Métis - Topic 8735

Practice - Representative actions - On behalf of band and/or nation (incl. Métis) - [See Indians, Inuit and Métis - Topic 3.3 ].

Land Regulation - Topic 2711.1

Land use control - Subdivision control - Subdivision applications - General - [See Administrative Law - Topic 2442 ].

Land Regulation - Topic 2714

Land use control - Subdivision control - Subdivision applications - Relevant considerations - A rural municipality passed amending bylaws rezoning certain land near a lake from agricultural to resort use - A developer acquired the land and applied for subdivision approval - The Director of Community Planning approved the subdivision under the Planning and Development Act - The applicants applied for judicial review, claiming that the Director's decision was unreasonable and contrary to law because of the failure to consider suitability of the land having regard to various factors enumerated in the Subdivision Regulations (e.g., issues of public safety from increased boating on the lake and the environmental effects of a back shore marina) - The applicants also claimed that the decision was contrary to the provisions of the rural municipality's basic planning statement and it was unreasonable in that it included provision for a back shore marina - The Saskatchewan Court of Queen's Bench dismissed the application - The issue of boating safety was not a public safety issue within the meaning of the Regulations - Further, the Director did not approve a back shore marina, but noted that such a development was a separate project requiring approval from the appropriate environmental/government authorities - The court concluded that none of the evidence or argument advanced by the applicants demonstrated either a flaw in the process followed by the Director in considering the factors or any conclusion reached which was not within the range of possible and acceptable outcomes - Finally, it was not a matter for the Director to determine whether a subdivision proposal accorded with a rural municipality's planning statement - See paragraphs 70 to 86.

Municipal Law - Topic 3890

Bylaws - Quashing bylaws - Judicial review - Practice - Limitation period - [See Administrative Law - Topic 3306 ].

Municipal Law - Topic 3902

Bylaws - Quashing bylaws - Judicial review - Bars - Tardiness or delay - [See Administrative Law - Topic 3306 ].

Municipal Law - Topic 3905

Bylaws - Quashing bylaws - Judicial review - Bars - Statutory bars - [See Administrative Law - Topic 3306 ].

Cases Noticed:

Kitsch v. Provincial Planning Appeals Board (Sask.), [1986] S.J. No. 78 (C.A.), refd to. [para. 28].

Ostrowski v. Beef Stabilization Board (Sask.) et al. (1993), 109 Sask.R. 40; 42 W.A.C. 40; 101 D.L.R.(4th) 511 (C.A.), refd to. [para. 34].

Warner v. Workers' Compensation Board (Sask.) (2007), 292 Sask.R. 283; 2007 SKQB 76, refd to. [para. 35].

Gook Country Estates Ltd. v. Quesnel (City) et al., [2006] B.C.T.C. Uned. D08; 152 A.C.W.S.(3d) 924; 2006 BCSC 1382, refd to. [para. 36].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 40].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 44].

Society for the Preservation of the Englishman River Estuary v. Nanaimo (Regional District) et al. (1999), 4 B.C.T.C. 356; 28 C.E.L.R.(N.S.) 253 (S.C.), refd to. [para. 44].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 48].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 53].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201, refd to. [para. 55].

Lethbridge (City) et al. v. Daisley et al. (2000), 250 A.R. 365; 213 W.A.C. 365; 12 M.P.L.R.(3d) 153; 2000 ABCA 79, leave to appeal refused (2000), 268 N.R. 200; 293 A.R. 189; 257 W.A.C. 189 (S.C.C.), refd to. [para. 74].

Sussex Corner (Village) v. Sussex (Town) et al. (2008), 331 N.B.R.(2d) 107; 849 A.P.R. 107; 46 M.P.L.R.(4th) 140; 2008 NBQB 188, refd to. [para. 74].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 74].

Saskatchewan (Minister of the Environment) v. Redberry Development Corp. et al. (1987), 58 Sask.R. 134 (Q.B.), affd. (1992), 100 Sask.R. 36; 18 W.A.C. 36 (C.A.), refd to. [para. 84].

Statutes Noticed:

Municipalities Act, S.S. 2005, c. M-36.1, sect. 2(ccc), sect. 143(1), sect. 144(1), sect. 144(2), sect. 144(4), sect. 145(1), sect. 147(1)(e)(ii), sect. 358(1), sect. 358(2), sect. 358(6), sect. 359(1), sect. 359(2), sect. 360, sect. 361(a) [para. 29].

Planning and Development Act Regulations (Sask.), Subdivision Regulations, Reg. 1, sect. 12(1), sect. 14 [para. 29].

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 665(1), rule 675 [para. 29].

Subdivision Regulations - see Planning and Development Act Regulations (Sask.).

Counsel:

Murray Walter, Q.C., for the applicants;

Meredith A. Hagel and Christy J. Stockdale, for the Rural Municipality of Lac Pelletier;

Barry J. Hornsberger, Q.C., for the Director of Community Planning;

P.M. McAdam, for the Attorney General;

Louis Stringer, for 101083806 Saskatchewan Ltd.

These applications ware heard by McIntyre, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following decision on September 3, 2009.