Samborski Garden Supplies Ltd. v. MacDonald (Rural Municipality), 2015 MBCA 53

• Judge: Monnin, Cameron and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 27, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 53;(2015), 319 Man.R.(2d) 138 (CA)

Samborski Garden v. MacDonald (2015), 319 Man.R.(2d) 138 (CA);

      638 W.A.C. 138

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JN.009

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

(AI 14-30-08232; 2015 MBCA 53)

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

Manitoba Court of Appeal

Monnin, Cameron and Mainella, JJ.A.

May 27, 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, in a decision reported at (2015), 315 Man.R.(2d) 291; 630 W.A.C. 291, dismissed the appeal. Samborski moved under rule 46.2 of the Court of Appeal Rules for a rehearing of the appeal.

The Manitoba Court of Appeal denied the motion.

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - The plaintiff sought a declaration that a conditional use order granted in 1990 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 - The plaintiff appealed - Before the appeal hearing, the appeal court raised the question of a discontinuance of the non-conforming use on its own motion - In Manitoba, discontinuing a non-conforming use of land for more than 12 months caused the acquired right to lapse - The appeal was dismissed on the basis that the conditional use order had lapsed - Eighteen years had passed without any activity associated with the non-conforming use - The plaintiff moved under rule 46.2 of the Court of Appeal Rules for a rehearing of the appeal - The Manitoba Court of Appeal denied the motion - The rehearing of an appeal was an extraordinary remedy that was rarely granted - The plaintiff's submission that the appeal was decided on a point of law that "was not in anyone's mind prior to being raised" was bound to fail - Counsel were given notice and an opportunity to address the issue - No objection to the process was raised - That the plaintiff had uncovered additional evidence following the appeal hearing did not raise a miscarriage of justice - The dismissal of an appeal was not the time to look for new evidence - Parties had to put their best case forward at the hearing.

Cases Noticed:

Willman v. Ducks Unlimited (Canada) (2005), 192 Man.R.(2d) 39; 340 W.A.C. 39; 2005 MBCA 13, refd to. [para. 16].

Rémillard v. Rémillard (2015), 319 Man.R.(2d) 94; 638 W.A.C. 94; 2015 MBCA 42, refd to. [para. 16].

Director of Child and Family Services v. A.C. et al. (2007), 214 Man.R.(2d) 177; 395 W.A.C. 177; 2007 MBCA 59, refd to. [para. 16].

Davis v. Labour Board (Man.) et al., [2007] Man.R.(2d) Uned. 74; 2007 MBCA 121, refd to. [para. 16].

R. v. Mian (M.H.), [2014] 2 S.C.R. 689; 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 10].

Compton Agro Inc. (Bankrupt), Re (2000), 145 Man.R.(2d) 227; 218 W.A.C. 227; 2000 MBCA 29, refd to. [para. 20].

Counsel:

E.G. Zazelenchuk, for the appellant;

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

This motion was heard without oral argument by Monnin, Cameron and Mainella, JJ.A., of the Manitoba Court of Appeal. On May 27, 2015, the court pronounced the following decision.