North West Co. v. Fort Smith (Town) et al., (2006) 397 A.R. 195 (NWTCA)

• Judge: Fruman, Veale and Ritter, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: June 27, 2006
• Jurisdiction: Northwest Territories
• Citations: (2006), 397 A.R. 195 (NWTCA)

North West Co. v. Fort Smith (2006), 397 A.R. 195 (NWTCA);

      384 W.A.C. 195

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. AU.063

The North West Company (appellant) v. Municipal Corporation of the Town of Fort Smith, Marie Swanson, Glen Freund, Roger Rawlyk, William Tordiff and John Minute (respondents)

(A-1-AP-2005000036; 2006 NWTCA 4)

Indexed As: North West Co. v. Fort Smith (Town) et al.

Northwest Territories Court of Appeal

Fruman, Veale and Ritter, JJ.A.

June 27, 2006.

Summary:

The appellant owned and operated a retail store in a town. The store applied for a development permit to add a gas bar to its retail operations. The development application was conditionally approved by the town's development officer. Five individuals appealed. The development appeal board allowed the appeals on June 15, 2005. On July 14, 2005, the store filed an application for leave to appeal the board's decision to the Supreme Court under s. 51 of the Planning Act. On August 15, 2005, the application was served on the town and four of the five individuals involved. A chambers judge heard the application on October 3, 2005. Only the store and the town made submissions. The chambers judge held that s. 51(2) of the Planning Act required both filing and service of the leave application on the town within 30 days of the board's decision. Accordingly, he held that the store's application for leave to appeal was out of time and he dismissed it. The appellant appealed.

The Northwest Territories Court of Appeal allowed the appeal, holding that only "reasonable notice of the hearing" was required under s. 51(2)(b) and that reasonable notice had been provided.

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - The appellant owned and operated a retail store in a town - The store applied for a development permit to add a gas bar to its retail operations - The development application was conditionally approved by the town's development officer - Five individuals appealed - The development appeal board allowed the appeals on June 15, 2005 - On July 14, 2005, the store filed an application for leave to appeal the board's decision to the Supreme Court under s. 51 of the Planning Act - On August 15, 2005, the application was served on the town and four of the five individuals involved - A chambers judge heard the application on October 3, 2005 - Only the town and the store made submissions - The chambers judge held that s. 51(2) of the Planning Act required both filing and service of the leave application on the town within 30 days of the board's decision - Accordingly, the judge decided that the store's application was out of time - The appellant appealed - The Northwest Territories Court of Appeal allowed the appeal, holding that only "reasonable notice of the hearing" was required under s. 51(2)(b) and that reasonable notice had been provided.

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - Sections 51(2)(a) and 51(2)(b) of the Planning Act provided that "Leave to appeal must be obtained from a judge of the Supreme Court on (a) application made within 30 days after the making of the order or decision sought to be appealed from; (b) notices to the parties affected" - The Northwest Territories Court of Appeal stated that "Section 51(2)(b) contains an express reference to notice. Section 51(2)(a) stipulates a 30 day deadline for making an application, but s. 51(2)(b) contains no similar requirement for notices to affected parties. The provisions are grouped in separate subclauses, separated by semi-colons. There is a presumption that language is used consistently and uniformly within a statute and, when different language is used, a different meaning is intended. Accordingly, the 30 day limitation in s. 51(2)(a) should not be read into s. 51(2)(b)." - The court applied a contextual approach to the interpretation of the legislation and held that only "reasonable notice of the hearing" was required.

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Interpretation by context (incl. modern rule) - Intention from whole of section or statute - [See second Land Regulation - Topic 3239 ].

Cases Noticed:

Treeshin v. Yellowknife (City), [1994] N.W.T.R. 237 (S.C.), refd to. [para. 5].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 12].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 12].

Statutes Noticed:

Planning Act, R.S.N.W.T. 1988, c. P-7, sect. 51(2)(a), sect. 51(2)(b) [para. 6].

Counsel:

S. Kay and P. Smith, for the appellant;

T. Marriott, for the respondents.

This appeal was heard by Fruman, Veale and Ritter, JJ.A., of the Northwest Territories Court of Appeal, on June 27, 2006. Fruman, J.A., delivered the following memorandum of judgment from the bench, for the court, on the same date, and filed it on July 31, 2006.