Macri v. Council of City of Edmonton, (1977) 2 A.R. 378 (CA)

• Judge: McGillivray, C.J., Clement and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 28, 1977
• Citations: (1977), 2 A.R. 378 (CA)

Macri v. Edmonton (1977), 2 A.R. 378 (CA)

MLB headnote and full text

Macri v. Council of The City of Edmonton

Indexed As: Macri v. Council of City of Edmonton

Alberta Supreme Court

Appellate Division

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

January 28, 1977.

Summary:

This case arose out of the granting of a development permit to a landowner in the City of Edmonton. The plaintiff opposed the granting of the development permit and appealed to the Development Appeal Board. The Development Appeal Board affirmed the issue of the development permit. The plaintiff applied to a judge of the Appellate Division under s. 146(2) of the Planning Act, R.S.A. 1970, c. 276, for leave to appeal from the decision of the Development Appeal Board. The application for leave to appeal was dismissed. The plaintiff appealed.

The Alberta Supreme Court, Appellate Division, dismissed the appeal. The Appellate Division held that the judge of the Appellate Division on the application for leave to appeal was acting in his capacity as a judge of that Division, not as a persona designata - see paragraphs 7 to 9. The Appellate Division held that it had inherent jurisdiction to supervise its members, but that its jurisdiction was limited to interfering with the refusal of leave to appeal only where the judge made a demonstrable and decisive error in exercising his jurisdiction, which had not been shown - see paragraphs 10 to 12.

Courts - Topic 351

Judges - Exercise of authority - Actions as judge of a court - The Planning Act, R.S.A. 1970, c. 276, s. 146(2), provided that leave to appeal from a decision of the Development Appeal Board should be obtained from "a judge of the Appellate Division" - The Alberta Court of Appeal held that a judge acting under the section was acting as a judge of the Appellate Division and not as a persona designata - See paragraphs 7 to 9.

Courts - Topic 8386

Provincial courts - Alberta - Supreme Court, Appellate Division - Jurisdiction - Appeals from orders of single judge of Appellate Division - The Planning Act, R.S.A. 1970, c. 276, s. 146(2), provided that leave to appeal from a decision of the Development Appeal Board should be obtained from "a judge of the Appellate Division" - The Alberta Court of Appeal held that a judge acting under this section was acting as a judge of the Appellate Division and not as a persona designata - The Appellate Division held that the Appellate Division had inherent jurisdiction of supervision over its members exercisable by appeal - See paragraphs 10 to 12.

Practice - Topic 8810

Appeals - Duties of an appellate court regarding orders of appeal court judges - The Alberta Court of Appeal held that the Appellate Division had inherent jurisdiction of supervision over its members exercisable by appeal - The Appellate Division stated that its jurisdiction was limited and that an order, such as a refusal to allow leave to appeal, should only be interfered with where the judge has made a demonstrable and decisive error in exercising his jurisdiction - See paragraph 12.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Points and issues not raised on an application - The plaintiff applied to a judge of the Appellate Division for leave to appeal from a decision of the Development Appeal Board pursuant to s. 146(2) of the Planning Act, R.S.A. 1970, c. 276 - Leave to appeal was refused - The plaintiff appealed to the Appellate Division and raised an issue which had not been argued before the judge on the application - The Alberta Court of Appeal held that the issue could not be raised on appeal, where the plaintiff did not establish that the issue was raised below - See paragraph 4.

Cases Noticed:

Chagnon v. Normand (1889), 16 S.C.R. 661, appld. [para. 7].

Hynes v. Swartz, [1938] 1 D.L.R. 29, appld. [para. 8].

Re Figol and City of Edmonton (1970), 8 D.L.R.(3d) 1, appld. [para. 9].

Re Smith and Hogan Ltd.: Industrial Acceptance Corporation Ltd. and Canadian Acceptance Corporation Ltd. v. Canada Permanent Trust Company, [1931] S.C.R. 652, appld. [para. 11].

Re Smith, [1952] 2 D.L.R. 778, refd to. [para. 11].

Statutes Noticed:

Extra-Curial Orders Act, R.S.A. 1970, c. 131 [para. 8].

Judicature Act, R.S.A. 1970, c. 193, sect. 26 [para. 10].

Planning Act, R.S.A. 1970, c. 276, sect. 128(4)(c), sect. 147(b), sect. 147(c) [para. 5]; sect. 146 [para. 3].

Rules of Court (Alta.), rule 501(b), rule 501(c), rule 505(1) [para. 10].

Counsel:

R.M. Fulton, for the appellant Macri;

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

H.M. Liknaitzky, for B.J. Wensley Architect Ltd.

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

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