New Directions for Children, Youth, Adults and Families Inc. v. Springfield (Rural Municipality), 2013 MBQB 243

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 09, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 243;(2013), 300 Man.R.(2d) 1 (QB)

New Directions v. Springfield (2013), 300 Man.R.(2d) 1 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.041

New Directions for Children, Youth, Adults and Families Inc. and Karen Kazubek as litigation guardian for Bert Gockel (applicants) v. Rural Municipality of Springfield (respondent)

(CI 11-01-69876; 2013 MBQB 243)

Indexed As: New Directions for Children, Youth, Adults and Families Inc. v. Springfield (Rural Municipality)

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

October 9, 2013.

Summary:

New Directions was a non-profit organization that sought to establish a group home in Springfield as a residence for Gockel, who had a profound intellectual disability, and two others with similar needs. Springfield's position was that the home required "institutional zoning" and denied New Directions' request to rezone its property. New Directions required a letter of zoning compliance from Springfield in order to obtain provincial funding. Taking the position that rezoning was not required and that the proposed use of the property was compliant with the residential zoning requirements, New Directions and Gockel applied for declaratory relief from the court and made a complaint to the Manitoba Human Rights Commission. Springfield moved to strike the application.

The Manitoba Court of Queen's Bench denied the motion.

Administrative Law - Topic 4501

Judicial review - Declaratory action - General principles - When available - [See Administrative Law - Topic 5104 ].

Administrative Law - Topic 5104

Judicial review - Certiorari - Conditions precedent - Requirement of decision or finality of decision - New Directions was a non-profit organization that sought to establish a group home in Springfield as a residence for Gockel, who had a profound intellectual disability, and two others with similar needs - Springfield's position was that the home required "institutional zoning" and denied New Directions' request to rezone its property - New Directions required a letter of zoning compliance from Springfield in order to obtain provincial funding - Taking the position that rezoning was not required and that the proposed use of the property was compliant with the residential zoning requirements, New Directions and Gockel applied for declaratory relief from the court - Springfield moved to strike the application, asserting, inter alia, that it failed to disclose a reasonable cause of action - The Manitoba Court of Queen's Bench denied the motion - The court rejected Springfield's argument that New Directions should have pursued the requested relief by way of the remedy of certiorari, rather than by a declaration that New Directions' group home met the definition of a single family dwelling - Springfield had not made a "legal" decision on the single family dwelling issue - There was no decision or determination that would attract the application of an order of certiorari - The court had not been referred to any decisions that stated that declaratory relief was not available in these circumstances - A cause of action should only be struck in the clearest of cases - This was not such a case - Further, it was not appropriate to strike out a remedy as disclosing no reasonable cause of action - See paragraphs 25 to 41.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Practice - Topic 221 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - New Directions was a non-profit organization that sought to establish a group home in Springfield as a residence for Gockel, who had a profound intellectual disability, and two others with similar needs - Springfield's position was that the home required "institutional zoning" and denied New Directions' request to rezone its property - New Directions required a letter of zoning compliance from Springfield in order to obtain provincial funding - Taking the position that rezoning was not required and that the proposed use of the property was compliant with the residential zoning requirements, New Directions and Gockel applied for declaratory relief from the court and made a complaint to the Manitoba Human Rights Commission (MHRC) - Springfield moved to strike the application for declaratory relief, asserting, inter alia, that the pleadings were an abuse of process - The Manitoba Court of Queen's Bench denied the motion - No decision had been rendered by MHRC and did not appear to be imminent - The abuse of process doctrine was intended to be used where a party was endeavouring to relitigate a matter that had already been determined - Further, while there were two forums involved, not all of the matters or available remedies overlapped - This was not one of the clearest of cases that justified striking out the pleadings or staying the process - See paragraphs 9 to 24.

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing - New Directions was a non-profit organization that sought to establish a group home in Springfield as a residence for Gockel, who had a profound intellectual disability, and two others with similar needs - Springfield's position was that the home required "institutional zoning" and denied New Directions' request to rezone its property - New Directions required a letter of zoning compliance from Springfield in order to obtain provincial funding - Taking the position that rezoning was not required and that the proposed use of the property was compliant with the residential zoning requirements, New Directions and Gockel applied for declaratory relief from the court - Springfield asserted that New Directions lacked standing to advance a claim for declaratory relief based on alleged violations of s. 15 of the Charter - The Manitoba Court of Queen's Bench agreed with New Directions that it might have public interest standing - There was a justiciable issue regarding the rights of individuals with intellectual disabilities - Further, given New Directions' mandate, this matter might be one where it was appropriate to afford New Directions public interest standing as an advocate for a group of individuals who were marginalized - This was a reasonable and effective way to bring the issue before the court - Using a flexible and discretionary approach, the matter should be permitted to go forward - In the event that New Directions was not permitted to argue the Charter on a public interest standing basis, the Charter issue would remain before the court as Gockel had legal standing - Therefore, no significant legal costs or time savings would be realized by striking out New Directions as a party - See paragraphs 42 to 55.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Administrative Law - Topic 5104 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Courts - Topic 2015 ].

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - New Directions was a non-profit organization that sought to establish a group home in Springfield as a residence for Gockel, who had a profound intellectual disability, and two others with similar needs - Springfield's position was that the home required "institutional zoning" and denied New Directions' request to rezone its property - New Directions required a letter of zoning compliance from Springfield in order to obtain provincial funding - Taking the position that rezoning was not required and that the proposed use of the property was compliant with the residential zoning requirements, New Directions applied for declaratory relief from the court and made a complaint to the Manitoba Human Rights Commission (MHRC) - Springfield moved to stay the proceedings under Queen's Bench Rule 21.01(3)(c) until the MHRC complaint had been conclusively determined - The Manitoba Court of Queen's Bench denied the motion - Rule 21.01(3)(c) stated that a defendant could move to stay an action where there was "another proceeding" pending between the same parties with the same subject matter - A complaint with the MHRC was not a "proceeding" within the meaning of the Queen's Bench Rules - Accordingly, it could not be considered a second proceeding for which a stay could be granted - See paragraphs 56 to 61.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - New Directions was a non-profit organization that sought to establish a group home in Springfield as a residence for Gockel, who had a profound intellectual disability, and two others with similar needs - Springfield's position was that the home required "institutional zoning" and denied New Directions' request to rezone its property - New Directions required a letter of zoning compliance from Springfield in order to obtain provincial funding - Taking the position that rezoning was not required and that the proposed use of the property was compliant with the residential zoning requirements, New Directions applied for declaratory relief from the court and made a complaint to the Manitoba Human Rights Commission (MHRC) - Springfield moved to stay the proceedings until the MHRC complaint had been conclusively determined - The Manitoba Court of Queen's Bench denied the motion - It was not prudent to stay this matter as there was no indication as to how long the MHRC process would take or whether it would proceed to a final adjudication - There was, at this point, only a very recently completed investigation and direction to mediation - See paragraphs 62 to 69.

Words and Phrases

Proceeding - The Manitoba Court of Queen's Bench considered the definition of "proceeding" as found in rule 21.01(3)(c) of the Queen's Bench Rules - See paragraphs 56 to 61.

Cases Noticed:

Kreiner v. Auditor General (Man.) (2007), 213 Man.R.(2d) 252; 2007 MBQB 61, affd. (2007), 220 Man.R.(2d) 302; 407 W.A.C. 302; 2007 MBCA 154, refd to. [para. 8].

Robertson v. Manitoba Keewatinowi Okimakanak Inc. et al. (2011), 262 Man.R.(2d) 126; 507 W.A.C. 126; 2011 MBCA 4, refd to. [para. 8].

Driskell v. Dangerfield et al. (2008), 228 Man.R.(2d) 116; 427 W.A.C. 116; 2008 MBCA 60, refd to. [para. 8].

Hall v. Puchniak et al. (1995), 99 Man.R.(2d) 186 (Q.B.), revd. in part (1995), 107 Man.R.(2d) 93; 109 W.A.C. 93 (C.A.), refd to. [para. 11].

Glenko Enterprises Ltd. v. Keller (2000), 150 Man.R.(2d) 1; 230 W.A.C. 1 (C.A.), refd to. [para. 11].

Sparrow v. New Flyer Industries Ltd. et al. (2004), 206 Man.R.(2d) 1; 2004 MBQB 281, refd to. [para. 13].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 15].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 51 O.R.(3d) 481 (C.A.), refd to. [para. 20].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 26].

Canadian Union of Public Employees v. Saskatchewan School Boards Association et al. (2009), 340 Sask.R. 102; 2009 SKQB 332, refd to. [para. 28].

Zeliony v. Red River College (2007), 222 Man.R.(2d) 156; 2007 MBQB 308, refd to. [para. 28].

Dickie Dee Ice Cream Ltd. v. Winnipeg (City) (1985), 34 Man.R.(2d) 43 (Q.B.), revd. (1985), 40 Man.R.(2d) 72 (C.A.), refd to. [para. 38].

Donald B. Holdings Ltd. et al. v. Winnipeg (City) (2012), 280 Man.R.(2d) 273; 548 W.A.C. 273; 2012 MBCA 70, refd to. [para. 39].

0757107 BC Ltd. v. Lake Cowichan (Town), [2008] B.C.T.C. Uned. 603; 2008 BCSC 961, refd to. [para. 40].

St. Mary's Cement Inc. v. Clarington (Municipality) (2012), 299 O.A.C. 357; 356 D.L.R.(4th) 448; 2012 ONCA 884, refd to. [para. 40].

Bethany Community Church of St. Catharines v. St. Catharines (City), [2012] O.T.C. Uned. 2359; 2012 ONSC 2359, refd to. [para. 40].

Balmoral Developments Hilda Inc. v. Orillia (City) et al., [2012] O.T.C. Uned. 6040; 2012 ONSC 6040, refd to. [para. 40].

Payne v. Litz (R.) & Sons Co. (2012), 283 Man.R.(2d) 303; 2012 MBQB 269 (Master), refd to. [para. 41].

Alcoholism Foundation of Manitoba et al. v. Winnipeg (City) (1990), 65 Man.R.(2d) 81 (C.A.), refd to. [para. 43].

Preston v. Chow et al. (2002), 163 Man.R.(2d) 134; 269 W.A.C. 134; 2002 MBCA 34, refd to. [para. 44].

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General), [2012] 2 S.C.R. 524; 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, refd to. [para. 47].

Fédération des parents francophones de Colombie-Britannique v. British Columbia (2012), 328 B.C.A.C. 295; 558 W.A.C. 295; 355 D.L.R.(4th) 688; 2012 BCCA 422, refd to. [para. 53].

Moore v. British Columbia, [1988] 3 W.W.R. 289 (B.C.C.A.), refd to. [para. 56].

Ayangma v. Eastern School Board et al. (2000), 187 Nfld. & P.E.I.R. 154; 566 A.P.R. 154; 187 D.L.R.(4th) 304; 2000 PESCAD 12, refd to. [para. 57].

Grover v. Canada (Attorney General), [2005] O.T.C. Uned. 981; 78 O.R.(3d) 126 (Sup. Ct.), refd to. [para. 59].

Kelly v. Ontario et al., [2008] O.T.C. Uned. 982; 91 O.R.(3d) 100 (Sup. Ct.), refd to. [para. 59].

Gale Estate v. Hominick et al. (1997), 147 D.L.R.(4th) 53 (Man. C.A.), leave to appeal dismissed (1997), 225 N.R. 160; 126 Man.R.(2d) 152; 167 W.A.C. 152 (S.C.C.), refd to. [para. 60].

Downey v. Keenan Truck Repair Inc. (2012), 396 N.B.R.(2d) 279; 1024 A.P.R. 279; 2012 NBQB 347, refd to. [para. 67].

Statutes Noticed:

Queen's Bench Rules (Man.) - see Rules of Court (Man.), Queen's Bench Rules.

Rules of Court (Man.), Queen's Bench Rules, rule 21.01(3)(c) [para. 61].

Authors and Works Noticed:

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (5th Ed. 2009), pp. 639 to 640, 756, 757 [para. 37].

Sarna, Lazar, The Law of Declaratory Judgments (3rd Ed. 2007), p. 3, fn. 1 [para. 34].

Counsel:

Kenneth M. Dolinsky and Shereese R. Qually, for the applicants;

Darcie C. Yale and Jennifer S. Winter, for the respondent;

J. Byron Williams, on a watching brief.

This motion was heard by McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 9, 2013.