Neufeld et al. v. Mountain View (County) et al.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Prowse
• Neutral Citation: 2014 ABQB 443
• Citation: (2014), 592 A.R. 364 (QBM),2014 ABQB 443,592 AR 364,(2014), 592 AR 364 (QBM),592 A.R. 364
• Date: 25 June 2014

Neufeld v. Mountain View (2014), 592 A.R. 364 (QBM)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.063

Abe Neufeld, 1273927 Alberta Ltd., 404048 Alberta Ltd., Style Realty Inc. and 1546775 Alberta Ltd. operating as Neuroese Properties (plaintiffs) v. The County of Mountain View, Paddy Munro and Kevin Good (defendants)

(1301 09070; 2014 ABQB 443)

Indexed As: Neufeld et al. v. Mountain View (County) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Prowse, Master

July 22, 2014.

Summary:

The plaintiffs were land developers. Their redesignation applications from agricultural to high density residential were refused, due to a change in land planning bylaws. The plaintiffs sued the County and two of its councillors. The defendants applied for summary dismissal. The plaintiffs asserted that the evidence disclosed triable issues of four types of bad faith: (1) "targeted malice"; (2) the process under which the County reviewed and amended the existing Municipal Development Plan; (3) delaying the redesignation applications; and (4) terminating the employment of planning department employees.

A Master of the Alberta Court of Queen's Bench summarily dismissed the claims. There was no triable issue. The County's decisions were bona fide.

Land Regulation - Topic 2141

Land use control - Municipal plan - Amendments - General - [See Municipal Law - Topic 1704 ].

Municipal Law - Topic 602

Council members - General - Liability of - [See Torts - Topic 226 ].

Municipal Law - Topic 830

Council members - Actions against members - Statutory immunity - Acting pursuant to public duty - [See Torts - Topic 226 ].

Municipal Law - Topic 1430

Powers of municipalities - Respecting land - Land use - [See Municipal Law - Topic 1704 ].

Municipal Law - Topic 1704

Liability of municipality - General and definitions - Bad faith - The plaintiffs were land developers - Their redesignation applications from agricultural to high density residential were refused, due to a change in land planning bylaws following a review of the Municipal Development Plan (MDP) - The plaintiffs sued the County and two of its councillors - The defendants moved for summary dismissal - The plaintiffs asserted that the evidence disclosed triable issues of bad faith - A Master of the Alberta Court of Queen's Bench summarily dismissed the claims - There were only two possible complaints about the bona fides of the process - (1) The voluntary review process, and in particular, the surveys associated with that process, were arguably deficient - Carelessness with respect to those surveys did not amount to mala fides - (2) There was an arguable case that the redesignation applications might have been slowed - However, documents created contemporaneously disclosed that, had the applications come forward earlier than the changes to the MDP, they would simply have been tabled; something that the County was lawfully entitled to do - Further, as sophisticated developers, the plaintiffs would have been aware that, until a development reached at least the stage where the land in question had been rezoned, it was always possible that a change would be made in land planning bylaws which would not allow the development to proceed - See paragraphs 17 to 22.

Municipal Law - Topic 6226

Actions against municipality - Capacity to be sued - Policy decisions - [See Torts - Topic 2643.1 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Municipal Law - Topic 1704 ].

Torts - Topic 226

Negligence - Exercise of statutory power - General - The plaintiffs were land developers - Their redesignation applications from agricultural to high density residential were refused, due to a change in land planning bylaws - The plaintiffs sued the County and two of its councillors - Negligence was brought forward as an alternative claim - A Master of the Alberta Court of Queen's Bench held that negligence was not available - "[W]e are not dealing with operational conduct of the County, but on planning decisions of a legislative nature. ... Absent bad faith, both the County and the defendant councillors are protected from liability under the Municipal Government Act." - In the end result, the Court concluded that the councillors and the Council acted in good faith in deciding to lower the residential density allowable in the County and in rejecting the plaintiffs' redesignation applications for that reason - See paragraphs 122 to 124, 133.

Torts - Topic 2643.1

Vicarious liability - Particular persons - Municipalities - The plaintiffs were land developers - Their claim arose from policy decisions (lowering density under the Municipal Development Plan, and refusing to redesignate land from "agricultural" to "high density residential" under its planning bylaws) - The plaintiffs categorized the claim as being against a municipality in its "operational" capacity - The allegations against the planning department employees (the municipality was said to be vicariously liable), and the two councillors, arose from steps taken leading up to the policy decisions - A Master of the Alberta Court of Queen's Bench stated that "we are not dealing with operational negligence ... . We are dealing with a council exercising its legislative land use planning jurisdiction. The steps taken by the employees in the County's planning department were taken as part of that process. A municipality can only operate through its councillors and employees. When a statutue releases a municipality from claims arising from planning decisions taken in good faith, that release cannot be avoided by saying that it was employees who took the steps on behalf of the municipality, and the municipality is vicariously liable. This interpretation would make meaningless section 529 of the Municipal Government Act." - See paragraphs 26 to 28, 125 to 127.

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - [See Torts - Topic 2643.1 ].

Cases Noticed:

Virdis v. North Vancouver (City) et al., [2009] B.C.T.C. Uned. 1118; 2009 CarswellBC 2168; 2009 BCSC 1118, refd to. [paras. 23, 60].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 29].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 29].

First National Properties Ltd. v. Highlands (District) et al. (2001), 152 B.C.A.C. 83; 250 W.A.C. 83; 2001 BCCA 305, refd to. [para. 39].

MacMillan Bloedel Ltd. v. Galiano Island Trust Committee (1995), 63 B.C.A.C. 81; 104 W.A.C. 81; 1995 CarswellBC 436 (C.A.), refd to. [para. 57].

Three Rivers District Council et al. v. Bank of England, [2000] 3 All E.R. 1; 257 N.R. 1 (H.L.), refd to. [para. 57].

Enterprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 CarswellQue 2404; 2004 SCC 61, refd to. [para. 57].

Powder Mountain Resorts Ltd. et al. v. British Columbia et al. (2001), 159 B.C.A.C. 14; 259 W.A.C. 14; 2001 CarswellBC 2225; 2001 BCCA 619, refd to. [para. 57].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 CarswellOnt 4851; 2003 SCC 69, refd to. [para. 57].

Genesis Land Development Corp. et al. v. Alberta et al. (2009), 471 A.R. 1; 2009 CarswellAlta 546; 2009 ABQB 221, refd to. [para. 57].

Windsor Arms Hotel Corp. v. Toronto (City), [2013] O.T.C. Uned. 1174; 2013 CarswellOnt 3489; 2013 ONSC 1174, refd to. [para. 57].

RVB Managements Ltd. et al. v. Rocky Mountain House (Town) (2014), 582 A.R. 1; 2014 CarswellAlta 156; 2014 ABQB 51, refd to. [para. 57].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 CarswellBC 17; 2012 SCC 2, refd to. [para. 70].

Granite Power Corp. v. Ontario et al. (2004), 189 O.A.C. 128; 72 O.R.(3d) 194; 2004 CarswellOnt 3204 (C.A.), refd to. [para. 130].

Winton (H.G.) Ltd. v. North York (Borough) (1978), 20 O.R.(2d) 737; 178 CarswellOnt 492 (Div. Ct.), refd to. [para. 131].

Ottawa (City) v. Boyd Builders Ltd., [1965] S.C.R. 408; 1965 CarswellOnt 66, refd to. [para. 132].

Conway et al. v. Zinkhofer, [2008] A.R. Uned. 306; 2008 ABCA 392, refd to. [para. 136].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 529 [para. 122]; sect. 535(2) [para. 123].

Authors and Works Noticed:

Laux, Frederick A., Planning Law and Practice in Alberta (3rd Ed. 2010) (looseleaf), pp. 12-13, 12-19 [para. 32].

Counsel:

Ariel Z. Breitman and Bryan G. West (McCarthy Tetrault LLP), for the plaintiffs;

Sheila C. McNaughton, Q.C., and Sean Ward (Reynolds, Mirth, Richards & Farmer LLP), for the defendants.

This summary judgment application was heard on June 25, 2014, before Prowse, Master in Chambers, of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision, dated at Calgary, Alberta, on July 22, 2014.