Masellis et al. v. Subdivision and Development Appeal Board (Edmonton (City)) et al., 2011 ABCA 157

• Judge: Watson, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 17, 2011
• Citations: 2011 ABCA 157;(2011), 505 A.R. 231 (CA)

Masellis v. Dev. Appeal Bd. (2011), 505 A.R. 231 (CA);

      522 W.A.C. 231

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MY.118

Vincenzo and Deborah Masellis, Joan Groff and Celestine Montgomery (applicants) v. The Subdivision and Development Appeal Board of the City of Edmonton and the City of Edmonton (respondents) and Greg Weiss and Charlene Weiss (respondents (by Order))

(1103-0086-AC; 2011 ABCA 157)

Indexed As: Masellis et al. v. Subdivision and Development Appeal Board (Edmonton (City)) et al.

Alberta Court of Appeal

Watson, J.A.

May 25, 2011.

Summary:

The Subdivision and Development Appeal Board of the City of Edmonton (SDAB) declined to take jurisdiction to hear the applicants' appeals in relation to a proposed single detached house that was in the process of being constructed on the basis that the appeals had not been commenced within the 14 day appeal period prescribed in s. 686(1) of the Municipal Government Act. The applicants sought leave pursuant to s. 688(3) of the Act to appeal the SDAB's decision.

The Alberta Court of Appeal, per Watson, J.A., dismissed the application.

Land Regulation - Topic 3272

Land use control - Building or development permits - Appeals to appeal board - Jurisdiction - [See Land Regulation - Topic 4145 ].

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law - On November 25, 2010, the City of Edmonton issued a Class A development permit for construction of a single detached house (the property) - The applicants (Mr. and Mrs. Masellis, Ms. Groff and Ms. Montgomery) lived near the property - On December 2, 2010, the Senior Development Compliance Planner (Hickmore) informed Mrs. Masellis that a development permit had been issued for the property - On January 13, 2010, Hickmore sent a letter to counsel for Mr. and Mrs. Marsellis in which she conceded that a Class B permit was required as a variance was necessary - Mr. and Mrs. Marsellis filed an appeal on January 14, 2011, Groff appealed on January 25, and Montgomery appealed on January 27, 2011 - The Subdivision and Development Appeal Board (SDAB) declined to take jurisdiction to hear the appeals on the basis that s. 686(1) of the Municipal Government Act (MGA) required that the appeals be filed within 14 days "after the date on which notice of the issuance of the permit was given in accordance with the land use bylaw" - The SDAB found that the permit was issued as a Class A permit on November 25, 2010, and that construction had commenced in November 2010 - The SDAB found that as the applicants resided on the same block as the development, they would have had constructive notice of the issuance of a development permit - Further, Mr. and Mrs. Masellis received verbal notice of the issuance of a development permit on December 2, 2010, and they had consulted with their neighbours on the issue - The applicants sought leave to appeal pursuant to s. 688(3) of the MGA - The applicants argued that the SDAB erred in law or jurisdiction on the following grounds: a. in finding that living on the same block as the property was constructive notice of the issuance of a development permit, thereby starting the running of the 14 day appeal period from the date the permit was issued; b. in failing to find that the time for filing an appeal began to run from the date that the City gave notice that a Class B permit had been issued; c. by dismissing the Groff and Montgomery appeals without making any finding as to when those parties had notice of issuance of the permit; d. by attributing the knowledge of Mrs. Masellis to Groff and Montgomery; and e. by providing inadequate reasons - The Alberta Court of Appeal, per Watson, J.A., dismissed the application - None of the proposed grounds of appeal was a question of law of sufficient importance to go to a panel of the court - Nor did they have a reasonable chance of success.

Cases Noticed:

Coventry Homes Inc. v. Subdivision and Development Appeal Board (Beaumont Town) et al. (2001), 277 A.R. 278; 242 W.A.C. 278; 2001 ABCA 49, appld. [para. 24].

Mirror Village v. Subdivision and Development Appeal Board (Lacombe County), [2001] A.R. Uned. 273; 2001 ABCA 272, refd to. [para. 27].

Mountain Creeks Ranch Inc. v. Subdivision and Development Appeal Board (Yellowhead County) et al., [2004] A.R. Uned. 68; 2004 ABCA 177, refd to. [para. 27].

Investors Group Trust Co. v. Calgary (City) et al. (2005), 361 A.R. 323; 339 W.A.C. 323; 2005 ABCA 34, refd to. [para. 28].

Calterra Land Developments Inc. v. Rocky View No. 44 (Municipal District) et al., [2005] A.R. Uned. 475; 2005 ABCA 356, refd to. [para. 28].

Lor-Al Springs Ltd. et al. v. Subdivision and Development Appeal Board (Ponoka County) et al. (2000), 271 A.R. 149; 234 W.A.C. 149; 2000 ABCA 299, refd to. [para. 28].

Postman et al. v. Development Appeal Board (Lethbridge) and Lethbridge (County), [1998] A.R. Uned. 695; 1998 ABCA 370, refd to. [para. 31].

Bowen v. Edmonton (City) (1977), 3 A.R. 63 (C.A.), refd to. [para. 36].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 36].

Cunningham v. Irvine-Adams et al. (2001), 277 A.R. 115; 242 W.A.C. 115; 2001 ABCA 38, refd to. [para. 38].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 38].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193, refd to. [para. 46].

R. v. Effert (K.A.) (2010), 477 A.R. 349; 483 W.A.C. 349; 2010 ABCA 144, refd to. [para. 48].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 686(1), sect. 688(3) [para. 1].

Counsel:

F.A. Laux, Q.C., and C.A. St. Dennis, for the applicants;

J.W. Murphy, Q.C., for the respondents by order;

P.A. Smith, Q.C., for the respondent, the Subdivision and Development Appeal Board of the City of Edmonton (no appearance);

J.C. Johnson, for the respondent, the City of Edmonton (no appearance).

This application for leave to appeal was heard on May 17, 2011, before Watson, J.A., of the Alberta Court of Appeal, who delivered the following reasons for decision on May 25, 2011.