Miraculous Growth Investments Inc. et al. v. Safety Codes Council, 2010 ABQB 620

• Judge: Macklin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 21, 2010
• Citations: 2010 ABQB 620;(2010), 503 A.R. 43 (QB)

Miraculous Growth Inv. v. Safety Codes Council (2010), 503 A.R. 43 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. OC.068

Miraculous Growth Investments Inc. and Robert Meyer (applicants) v. Safety Codes Council (respondent)

(1003 04619; 2010 ABQB 620)

Indexed As: Miraculous Growth Investments Inc. et al. v. Safety Codes Council

Alberta Court of Queen's Bench

Judicial District of Edmonton

Macklin, J.

October 7, 2010.

Summary:

The applicant corporation owned a building in Edmonton commonly described as a semi-detached dwelling or duplex. Following an inspection of the building, a City of Edmonton Safety Codes Officer issued an order directing the applicants to cease using the building as a boarding and rooming house. On appeal, the Safety Codes Council issued an order varying the earlier order so as to require the applicants to return the building's occupancy from a rooming house to its original intended use and occupancy as a residential duplex building having not more than one single family use per duplex unit. The applicants appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - The applicant corporation owned a building in Edmonton commonly described as a semi-detached dwelling or duplex - Following an inspection of the building, a City of Edmonton Safety Codes Officer issued an order directing the applicants to cease using the building as a boarding and rooming house - On appeal, the Safety Codes Council issued an order varying the earlier order so as to require the applicants to return the building's occupancy from a rooming house to its original intended use and occupancy as a residential duplex building having not more than one single family use per duplex unit - The applicants appealed, asserting that the Council's reasons for decision were inadequate - The Alberta Court of Queen's Bench dismissed the appeal - The changes made by the Council to the original order were supported by its findings and explained in its decision - The reasons for decision adequately explain the Council's reasoning - They showed how, and on what evidence, the Council reached its conclusions - See paragraphs 29 to 35.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The applicant corporation owned a building in Edmonton commonly described as a semi-detached dwelling or duplex - Following an inspection of the building, a City of Edmonton Safety Codes Officer issued an order directing the applicants to cease using the building as a boarding and rooming house - On appeal, the Safety Codes Council issued an order varying the earlier order so as to require the applicants to return the building's occupancy from a rooming house to its original intended use and occupancy as a residential duplex building having not more than one single family use per duplex unit - The applicants appealed, asserting the following breaches of their right to procedural fairness: "(a) the Council made changes to the Order without giving adequate reasons; (b) Robert Stephen Meyer, a director of [the corporate applicant], was not served with or mentioned in the Order and was, therefore, deprived of the opportunity to know the case against him and the opportunity to put forward his views and evidence fully for consideration by the Council; and (c) the Applicants were not afforded an opportunity by the Council to review the evidence submitted at the hearing by the City." - The Alberta Court of Queen's Bench dismissed the appeal - The applicants failed to adduce any evidence as to the consequences of the City's failure to provide notice of the Order to Robert Stephen Meyer in his personal capacity - Further, the applicants had clear notice and understood that the characterization of the property was a significant issue and, indeed, the most important issue - With respect to the allegation that the City failed to provide the applicants with an opportunity to review its evidence prior to the hearing, there was no requirement for the City to do so in advance of a hearing - The applicants failed to establish that the Council committed any breaches of procedural fairness - See paragraphs 53 to 61.

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - The applicant corporation owned a building in Edmonton commonly described as a semi-detached dwelling or duplex - Following an inspection of the building, a City of Edmonton Safety Codes Officer issued an order directing the applicants to cease using the building as a boarding and rooming house - On appeal, the Safety Codes Council issued an order varying the earlier order so as to require the applicants to return the building's occupancy from a rooming house to its original intended use and occupancy as a residential duplex building having not more than one single family use per duplex unit - The applicants appealed, asserting that the Council based its decision on irrelevant considerations - The Alberta Court of Queen's Bench dismissed the appeal - Council's reasons for its decision were adequately set forth in its order and Council's findings of fact could not be considered irrelevant - These facts were clearly relevant to Council's finding that the property and duplex were currently being used and occupied as a rooming house rather than a residential duplex - See paragraphs 36 to 42.

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - The applicant corporation owned a building in Edmonton commonly described as a semi-detached dwelling or duplex - Following an inspection of the building, a City of Edmonton Safety Codes Officer issued an order directing the applicants to cease using the building as a boarding and rooming house - On appeal, the Safety Codes Council issued an order varying the earlier order so as to require the applicants to return the building's occupancy from a rooming house to its original intended use and occupancy as a residential duplex building having not more than one single family use per duplex unit - The applicants appealed, asserting that the Council overlooked relevant factors, i.e., definitions and criteria set out in the zoning bylaw in determining whether the property was being used as originally intended - The Alberta Court of Queen's Bench dismissed the appeal - The Council did not fail to consider any relevant factors nor could it be said to have misinterpreted or misapplied any relevant statutory provisions - The Council's Order showed that it did consider the issues raised by the applicants in their appeal and made its determination on the basis of the evidence before it and the applicable statutory provisions - The applicants failed to rebut the presumption that the Council considered and weighed all relevant considerations - See paragraphs 43 to 52.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The applicant corporation owned a building in Edmonton commonly described as a semi-detached dwelling or duplex - Following an inspection of the building, a City of Edmonton Safety Codes Officer issued an order directing the applicants to cease using the building as a boarding and rooming house - On appeal, the Safety Codes Council issued an order varying the earlier order so as to require the applicants to return the building's occupancy from a rooming house to its original intended use and occupancy as a residential duplex building having not more than one single family use per duplex unit - The applicants appealed - With respect to the standard of review, the Alberta Court of Queen's Bench stated that "the appropriate standard of review for any questions of law or jurisdiction raised by the Applicants in this case is correctness. ... Judicial review of the substance of the decision on the merits and conclusion of the Council attracts the reasonableness standard. ... the standard with respect to procedural fairness is akin to the correctness standard, the content being informed by the [Baker v. Canada (Minister of Citizenship and Immigration) (SCC 1999)] factors." - See paragraphs 18 to 23.

Cases Noticed :

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; 2008 SCC 9, refd to. [para. 19].

Hennig v. Institute of Chartered Accountants (Alta.) (2008), 433 A.R. 221; 429 W.A.C. 221; 2008 ABCA 241, refd to. [para. 19].

Leduc (County) v. Safety Codes Council et al. (1999), 252 A.R. 350 (Q.B.), refd to. [para. 19].

Tirion Properties Ltd. et al. v. Safety Codes Council, [2008] A.R. Uned. 577; 2008 ABQB 549, refd to. [para. 19].

Nortel Networks Inc. v. Calgary (City) et al. (2008), 440 A.R. 325; 438 W.A.C. 325; 2008 ABCA 370, refd to. [para. 22].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 23].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2010), 294 Nfld. & P.E.I.R. 161; 908 A.P.R. 161; 190 L.A.C.(4th) 385; 2010 NLCA 13, refd to. [para. 29].

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. 31].

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. 36].

Keephills Aggregate Co. v. Subdivision and Development Appeal Board (Parkland County) et al. (2003), 348 A.R. 41; 321 W.A.C. 41; 2003 ABCA 242, refd to. [para. 36].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 36].

Simonelli v. Rocky View No. 44 (Municipal District) (2004), 350 A.R. 286; 2004 ABQB 45, refd to. [para. 37].

Lethbridge (City) et al. v. Daisley et al. (2000), 250 A.R. 365; 213 W.A.C. 365; 2000 ABCA 79, refd to. [para. 37].

Counsel:

Roberto Noce, Q.C., for the applicants;

Thomas D. Marriott, for the respondent.

This appeal was heard on September 21, 2010, by Macklin, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 7, 2010.