Keefe et al. v. Edmonton (City) et al., (2005) 363 A.R. 384 (CA)

• Judge: McFadyen, Russell and Berger, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 12, 2005
• Citations: (2005), 363 A.R. 384 (CA);2005 ABCA 144

Keefe v. Edmonton (2005), 363 A.R. 384 (CA);

    343 W.A.C. 384

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. AP.064

James Keefe, Tim Earle and Mark McDonald (respondents/applicants) v. The City of Edmonton (not a party to the appeal/respondent) and Clifton Corporation and Cliftongate Properties Ltd. (appellants/respondents by order)

(0303-0056-AC; 2005 ABCA 144)

Indexed As: Keefe et al. v. Edmonton (City) et al.

Alberta Court of Appeal

McFadyen, Russell and Berger, JJ.A.

April 12, 2005.

Summary:

A spot zoning bylaw changed the zoning for four city lots from a 2.5 storey townhouse style complex to a 61 suite, five storey apartment building. Residents of the neighbourhood applied to quash or declare the bylaw invalid for breach of procedural fairness and natural justice, or as being void for vagueness and uncertainty.

The Alberta Court of Queen's Bench, in a judgment reported (2002), 329 A.R. 149, quashed the bylaw for breach of natural justice, being the failure to afford the residents a full and fair right to be heard. The developer appealed.

The Alberta Court of Appeal dismissed the appeal.

Administrative Law - Topic 225

The hearing and decision - Right to be heard - What constitutes not being heard - Residents opposed to a spot zoning bylaw attended the public hearing before city council with their transportation expert - The central focus was traffic safety - The hearing was adjourned without being started - The residents and expert attended the rescheduled hearing, which was started but not completed - The expert made some submissions - Residents were assured a right to respond to or rebut new information presented by the developer - However, the expert was unable to attend the continuation of the hearing due to illness - Council refused to permit him to participate by speaker phone, citing an unwillingness to create a precedent whereby persons could participate in hearings where they did not wish to attend - The hearing proceeded - The bylaw passed 7-5 - New information had been presented and the expert's credibility had been challenged - Council mistakenly took the position that there was no policy permitting electronic participation in public meetings - The trial judge quashed the bylaw for want of procedural fairness - The residents, based on Council's own assurances, had a reasonable expectation of being afforded a full opportunity to be heard and to respond to new information - The failure to permit the expert to be heard denied the residents' right to be heard - The developer appealed - The Alberta Court of Appeal substantially endorsed the reasoning of the trial judge and dismissed the appeal - See paragraphs 14 to 31.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See Administrative Law - Topic 225 ].

Municipal Law - Topic 386

Councils - Meetings - Public hearings - Reasonable opportunity to be heard - [See Administrative Law - Topic 225 ].

Municipal Law - Topic 387

Councils - Meetings - Public hearings - Evidence - [See Administrative Law - Topic 225 ].

Cases Noticed:

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199, refd to. [para. 9].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

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; 2000 SCC 13, refd to. [para. 12].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 13].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 15].

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Municipalité) (2004), 323 N.R. 1; 2004 SCC 48, refd to. [para. 15].

Bridgeland Riverside Community Association v. Calgary (City) and Patricia Investments Ltd. (1982), 37 A.R. 26 (C.A.), refd to. [para. 29].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 199(1), sect. 230(2), sect. 230(3), sect. 230(4) [para. 8].

Counsel:

F.A. Laux, Q.C., and J.A. Agrios, for the appellants/respondents by order;

K.D. Wakefield, Q.C., for the respondents/ applicants, James Keefe and Tim Earle;

Mark McDonald, respondent/applicant, no one appeared;

R. Hofer, for the City of Edmonton, not a party to the appeal/respondent, no one appearing.

This appeal was heard on November 4, 2004, before McFadyen, Russell and Berger, JJ.A., of the Alberta Court of Appeal.

The judgment of the Court of Appeal was delivered by Russell, J.A., and filed on April 12, 2005.