Mushka v. Candle Lake (Resort Village) et al., 2003 SKQB 147

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 31, 2003
• Jurisdiction: Saskatchewan
• Citations: 2003 SKQB 147;(2003), 233 Sask.R. 246 (QB)

Mushka v. Candle Lake (2003), 233 Sask.R. 246 (QB)

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. AP.030

Robert Mushka and Karen Mushka (plaintiffs) v. The Resort Village of Candle Lake and Dale McLeod (defendants)

(1998 Q.B. No. 865; 2003 SKQB 147)

Indexed As: Mushka v. Candle Lake (Resort Village) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Ryan-Froslie, J.

March 31, 2003.

Summary:

The Resort Village of Candle Lake passed three resolutions which effectively forced the Mushkas to stop work on renovations to their mobile home and remove the home from the resort village. The Mushkas applied for judicial review. They also claimed damages against the resort village and the village's mayor for deterioration of the renovations which could not be completed because of the resolutions in question.

The Saskatchewan Court of Queen's Bench, allowed the application and quashed the resolutions because the resort village did not comply with the principles of procedural fairness. The court dismissed the damages claim where damages were not proven.

Administrative Law - Topic 548

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When not required - [See Municipal Law - Topic 428 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See Municipal Law - Topic 428 ].

Administrative Law - Topic 2442

Natural justice - Procedure - Notice - When required - [See Municipal Law - Topic 428 ].

Municipal Law - Topic 428

Councils - Decisions of - Duty of fairness - The Resort Village of Candle Lake passed three resolutions which effectively forced the Mushkas to stop work on renovations to their mobile home and to remove that home from the resort village, after the resort village had initially approved the renovations - The Mushkas applied for judicial review - The Saskatchewan Court of Queen's Bench, allowed the application and quashed the resolutions because the resort village did not comply with the principles of procedural fairness - The court held that the duty of fairness applied to the discretionary decision of the municipality to stop the renovations - The duty included giving notice to the Mushkas of the resort village's concerns and an opportunity to be heard on those issues - The court opined that the duty of fairness did not require the resort village to give reasons for its decision - See paragraphs 32 to 55 and 63 and 64.

Municipal Law - Topic 1601

Powers of municipalities - Exercise of powers - Natural justice - Duty of fairness - When required - [See Municipal Law - Topic 428 ].

Cases Noticed:

Gallagher v. Armstrong (1911), 3 Alta. L.R. 443, refd to. [para. 30].

Norfolk v. Roberts (1913), 28 O.L.R. 593, affd. (1914), 50 S.C.R. 283, refd to. [para 30].

Glenella Management Ltd. v. Winnipeg (City) and Rivers and Streams Authority No. 1 (1985), 40 Man.R.(2d) 53 (Q.B.), refd to. [para. 32].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 32].

Beer v. Fort Garry (Rural Municipality) (1958), 16 D.L.R.(2d) 316 (Man. C.A.), refd to. [para. 32].

Namusa Enterprises Ltd. v. Etobicoke, Lottery Licensing Officer for Etobicoke and Etobicoke Board of Control (1984), 6 O.A.C. 137; 47 O.R.(2d) 769 (Div. Ct.), refd to. [para. 32].

Morrison v. Parkland No. 31 (County) (1995), 173 A.R. 346; 33 Alta. L.R.(3d) 238 (Q.B.), refd to. [para. 32].

Kirkfield Park & Arthur Oliver Residents Association Inc. v. Winnipeg (City) et al., [1996] 4 W.W.R. 393; 107 Man.R.(2d) 259; 109 W.A.C. 259 (C.A.), refd to. [para. 55].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 57].

Harker et al. v. Regina (City) et al. (1995), 128 Sask.R. 224; 85 W.A.C. 224; 29 Admin. L.R.(2d) 106 (C.A.), refd to. [para. 58].

Atkins et al. v. Calgary (City) (1994), 162 A.R. 97; 83 W.A.C. 97 (C.A.), refd to. [para. 58].

Save Richmond Farmland Society et al. v. Richmond (Township) et al. (1989), 36 B.C.L.R.(2d) 49 (C.A.), affd. [1990] 3 S.C.R. 1213; 116 N.R. 68; 52 B.C.L.R.(2d) 145; 75 D.L.R.(4th) 425, refd to. [para. 59].

Argue (E.C.) Holdings Ltd. et al. v. Edenwold No. 158 (Rural Municipality) (1999), 179 Sask.R. 142 (Q.B.), refd to. [para. 62].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (3rd Ed. 2001), p. 85 [para. 55].

Rogers, The Law of Canadian Municipal Corporations (2nd Ed. 2000), vol. 1, p. 9 [para. 30].

Counsel:

G.J. Scharfstein, for the plaintiffs;

R.C. Mills, Q.C., for the defendants.

This matter was heard before Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following decision on March 31, 2003.