Samborski Garden Supplies Ltd. v. MacDonald (Rural Municipality), (2015) 315 Man.R.(2d) 291 (CA)

• Judge: Monnin, Cameron and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 28, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 315 Man.R.(2d) 291 (CA);2015 MBCA 26

Samborski Garden v. MacDonald (2015), 315 Man.R.(2d) 291 (CA);

      630 W.A.C. 291

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.029

Samborski Garden Supplies Ltd. (applicant/appellant) v. The Rural Municipality of MacDonald (respondent/respondent)

(AI 14-30-08232; 2015 MBCA 26)

Indexed As: Samborski Garden Supplies Ltd. v. MacDonald (Rural Municipality)

Manitoba Court of Appeal

Monnin, Cameron and Mainella, JJ.A.

March 10, 2015.

Summary:

In 1990, the owners of the land at issue received a conditional use approval permitting them to develop the land as a landscaping business, including the establishment of a composting facility. The approval was subject to conditions, including that it would "expire if not acted upon within 12 months of its making". The proposed developer (not the owners) and the rural municipality (RM) executed a development agreement and the RM registered a caveat against the land that gave notice to the public of the development agreement. The development never took place. In 2009, the RM discharged the caveat. Samborski Garden Supplies Ltd., which held an option to buy the land, sought to establish a composting facility on the land. Asserting that the RM acted in bad faith when it discharged the caveat, Samborski applied for a declaration that the conditional use order remained valid.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 304 Man.R.(2d) 209, dismissed the application. Samborski appealed.

The Manitoba Court of Appeal dismissed the appeal.

Courts - Topic 2103

Jurisdiction - Appellate jurisdiction - Issues - [See Practice - Topic 9012 ].

Land Regulation - Topic 2680

Land use control - Zoning bylaws - Permitted uses - Conditional uses - [See Land Regulation - Topic 2870 ].

Land Regulation - Topic 2801

Land use control - Exemptions - Nonconforming use - Use not conforming to zoning bylaw or official plan - [See Land Regulation - Topic 2870 ].

Land Regulation - Topic 2870

Land use control - Exemptions - Loss of exemption - Change or discontinuance of use - Discontinuance of use - In 1990, the owners of the land at issue received a conditional use approval permitting them to develop the land as a landscaping business, including the establishment of a composting facility - The approval would "expire if not acted upon within 12 months of its making" - The proposed developer (not the owners) and the rural municipality (RM) executed a development agreement and the RM registered a caveat against the land that gave notice to the public of the development agreement - The development never took place - In 2009, the RM discharged the caveat - Samborski Garden Supplies Ltd., which held an option to buy the land, sought to establish a composting facility on the land - Samborski's application for a declaration that the conditional use order remained valid was dismissed - The Manitoba Court of Appeal dismissed Samborski's appeal - While there was some merit in Samborski's argument that the conditional use order had not expired one year after it was granted, there was a more fundamental problem that was dispositive of the appeal - In Manitoba, discontinuing a non-conforming use of land for more than 12 months caused the acquired right to lapse (s. 91(1) of the Planning Act) - The test for discontinuance was two part - There had to be disuse of the non-conforming use for more than 12 consecutive months and a lack of bona fide intention to use the land for the non-conforming use as far as practicable in the circumstances - Here, there was no doubt that the conditional use order had lapsed - Eighteen years had passed without any activity associated with the non-conforming use - See paragraphs 17 to 25.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - The plaintiff sought a declaration that a conditional use order granted in 1990, which allowed for a composting facility on land within the municipality, remained valid - Rempel, J., dismissed the application on the basis of s. 59(1) of the Planning Act, finding that the conditional use order had ceased to exist because the developer failed to take any steps toward compliance - On the plaintiff's appeal, the Manitoba Court of Appeal raised the question of a discontinuance of the non-conforming use under s. 54(1) of the Act on its own motion - The court stated, "I am satisfied that no additional evidence is required to consider the legal issue of the discontinuance of the non-conforming use and it is appropriate to do so in the circumstances, as the new issue does not recast the proceedings below or create any procedural prejudice to the parties. ... While I sympathize with the appellant that the question of discontinuance of the non-conforming use was not argued at first instance, the provisions of the Act cannot be simply ignored for that reason. ... To do so would risk an injustice. In my view, respecting the rule of law and the undesirability of knowingly perpetrating a legal error due to an oversight in the court below, outweigh any perceived unfairness" - See paragraphs 26 to 29.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

Bourgouin v. Rosser (Rural Municipality) et al. (2014), 310 Man.R.(2d) 284; 618 W.A.C. 284; 2014 MBCA 103, refd to. [para. 15].

St. Clements Ratepayers Association Inc. v. St. Clements (Rural Municipality) (2001), 158 Man.R.(2d) 250; 2001 MBQB 232, refd to. [para. 19].

Saint-Romuald (Ville) v. Olivier et al., [2001] 2 S.C.R. 898; 275 N.R. 1; 2001 SCC 57, refd to. [para. 21].

Stavely (Town) v. Fern Brothers, Stacey and Credit Foncier Trust Co. (1987), 84 A.R. 266 (C.A.), refd to. [para. 22].

Cowichan Valley (Regional District) v. Ward et al. (1994), 39 B.C.A.C. 154; 64 W.A.C. 154 (C.A.), refd to. [para. 24].

Wong v. Maple Creek (Town) (2013), 424 Sask.R. 94; 2013 SKQB 240, refd to. [para. 24].

Feather v. Bradford-West Gwillimbury (Town) et al. (2010), 268 O.A.C. 239; 2010 ONCA 440, refd to. [para. 24].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 27].

St. Clements (Rural Municipality) v. Zucawich (2013), 294 Man.R.(2d) 146; 581 W.A.C. 146; 2013 MBCA 65, refd to. [para. 27].

R. v. C.J. (1997), 115 Man.R.(2d) 72; 139 W.A.C. 72 (C.A.), refd to. [para. 27].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 27].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 27].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 27].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 27].

MacLeod v. Yong (1999), 121 B.C.A.C. 296; 198 W.A.C. 296; 1999 BCCA 249, refd to. [para. 29].

Authors and Works Noticed:

Brown, Donald, J.M., Civil Appeals (2013) (Looseleaf), 10:4323 [para. 29].

Counsel:

E.G. Zazelenchuk, for the appellant;

M.T. O'Neill, for the respondent.

This appeal was heard on January 28, 2015, by Monnin, Cameron and Mainella, JJ.A., of the Manitoba Court of Appeal. On March 10, 2015, Mainella, J.A., delivered the following judgment for the court.