Save The Eaton's Building v. Winnipeg,

• Jurisdiction: Manitoba
• Judge: Helper, Kroft and Steel, JJ.A.
• Neutral Citation: 2001 MBCA 186
• Citation: (2001), 160 Man.R.(2d) 236 (CA),2001 MBCA 186,206 DLR (4th) 541,[2002] 3 WWR 419,[2001] MJ No 511 (QL),160 Man R (2d) 236,[2001] M.J. No 511 (QL),160 Man.R.(2d) 236,206 D.L.R. (4th) 541,(2001), 160 ManR(2d) 236 (CA),160 ManR(2d) 236
• Date: 21 September 2001
• Court: Court of Appeal (Manitoba)

Save The Eaton's Building v. Winnipeg (2001), 160 Man.R.(2d) 236 (CA);

    262 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2001] Man.R.(2d) TBEd. DE.029

Save the Eaton's Building Coalition (applicant/appellant) v. The City of Winnipeg and True North Entertainment Complex Limited Partnership (respondents/respondents)

Save the Eaton's Building Coalition (applicant/appellant) v. The City of Winnipeg (respondent) and True North Entertainment Complex Limited Partnership (moving party/respondent)

(AI 01-30-04997; AI 01-30-04998; 2001 MBCA 186)

Indexed As: Save The Eaton's Building Coalition v. Winnipeg (City) et al.

Manitoba Court of Appeal

Helper, Kroft and Steel, JJ.A.

November 30, 2001.

Summary:

The applicant sought to prevent the demolition of what it believed was a heritage building. It challenged certain resolutions, and actions leading to or surrounding those resolutions, of Council and of the Property Committee of the City of Winnipeg. The applicant alleged that the City failed to comply with its own bylaws or procedures and alleged bias and bad faith. The developer applied to be joined as a respondent in the application.

The Manitoba Court of Queen's Bench joined the developer as a party. The application proceeded.

The Manitoba Court of Queen's Bench, in a decision reported 158 Man.R.(2d) 46, dismissed the application. The applicant appealed the decision and also appealed the order adding the developer as a party.

The Manitoba Court of Appeal dismissed the appeal respecting the applicant's challenge to the City's actions. The court, Kroft, J.A. dissenting, allowed the appeal of the order adding the developer as a party.

Administrative Law - Topic 2094

Natural justice - Constitution of board or tribunal - Considerations (incl. bias) - Bias - Municipal councillors - [See Municipal Law - Topic 410 ].

Municipal Law - Topic 410

Councils - Resolutions - Quashing of - Grounds - Winnipeg City Council passed a Term Sheet Resolution (similar to an agreement in principle) respecting a proposed development which would require the demolition of a building - The Standing Policy Committee on Property and Development (Property Committee) subsequently rejected a recommendation of the City's Historical Buildings Committee that the building be placed on the Historic Buildings Conservation List - Council later passed a "Demolition Resolution" adopting the Property Committee's recommendation - The trial judge rejected an argument that the passage of the Term Sheet Resolution and/or the comments or conduct of individual councillors with respect thereto constituted bias respecting the subsequent resolutions - Previous statements, positions or votes did not constitute bias so long as councillors were prepared to hear and did hear proponents and opponents of issues according to the City's procedural requirements and were open-minded in so doing - The Manitoba Court of Appeal dismissed an appeal - See paragraph 2.

Municipal Law - Topic 429

Councils - Decisions of - Bias - [See Municipal Law - Topic 410 ].

Practice - Topic 604

Parties - Adding or substituting parties - General principles - Considerations - Rule 5.03(3) of the Rules of Court (Man.) provided that the court could add as a party a person who ought to have been joined as a party or whose presence as a party was necessary to enable the court to adjudicate effectively and completely on the issues in the proceedings - The Manitoba Court of Appeal reviewed the historical development of rule 5.03(3) - Given the introduction of rule 13 which allowed nonparties to intervene (with leave), a narrower interpretation of the nature of the interest required for the application of rule 5.03(3) was more appropriate - Therefore, commercial interest in the outcome of a court proceeding did not warrant the granting of an application under rule 5.03(3) - See paragraphs 11 to 48.

Practice - Topic 630

Parties - Adding or substituting parties - Necessary parties - General - [See Practice - Topic 604 ].

Practice - Topic 681

Parties - Adding or substituting parties - Intervenors - Persons who may apply - The applicant sought to prevent the demolition of a building - It challenged certain resolutions, and actions leading to or surrounding those resolutions, of Council and of the Property Committee of the City of Winnipeg - The applicant alleged bias and bad faith - The Manitoba Court of Appeal held that an applications judge erred in allowing the developer to be joined as a respondent in the application under rule 5.03(3) of the Rules of Court - Furthermore, it could not be added as a party as an intervenor under rule 13.01 - The developer's only connection to the subject matter of the litigation was the potential adverse effect it could have on the developer financially - It had assumed that financial risk even prior to advancing its project - This commercial interest did not warrant its being added as an intervenor in the proceedings - See paragraphs 55 to 70.

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - [See Practice - Topic 681 ].

Practice - Topic 686

Parties - Adding or substituting parties - Intervenors - Where applicant may be adversely affected - [See Practice - Topic 681 ].

Practice - Topic 723

Parties - Adding or substituting parties - Respondents - Persons who may apply - The applicant sought to prevent the demolition of a building - It challenged certain resolutions, and actions leading to or surrounding those resolutions, of Council and of the Property Committee of the City of Winnipeg - The applicant alleged bias and bad faith - The Manitoba Court of Appeal held that an applications judge erred in allowing the developer to be joined as a respondent in the application under rule 5.03(3) of the Rules of Court - The developer's legal rights would not be affected by the outcome of the proceedings - It was not a necessary party to the proceedings - The applicant had no cause of action against the developer - The developer's potential financial adversity was its only connection with the subject matter of the litigation - See paragraphs 49 to 54.

Practice - Topic 725

Parties - Adding or substituting parties - Respondents - Interested persons defined - [See Practice - Topic 723 ].

Cases Noticed:

Gurtner v. Circuit, [1968] 2 Q.B. 587 (C.A.), refd to. [paras. 7, 75].

Peters (I.) Transport Ltd. and Jade Transport Ltd. v. Motor Transport Board (Man.) (No. 1) (1981), 17 Man.R.(2d) 359 (C.A.), refd to. [para. 8].

Winnipeg Anti-Sniff Coalition Inc. v. R. (1981), 18 M.P.L.R. 128 (Man. C.A.), refd to. [para. 8].

Stuart and Quinton v. Assiniboine Park-Fort Garry Community Committee of Winnipeg et al. (1992), 76 Man.R.(2d) 276; 10 W.A.C. 276 (C.A.), refd to. [paras. 8, 85].

Woodhaven Homeowners' Association v. Winnipeg (City) (1996), 114 Man.R.(2d) 245 (Q.B.), refd to. [paras. 8, 85].

Kirkfield Park & Arthur Oliver Residents Association Inc. v. Winnipeg (City) (1995), 101 Man.R.(2d) 246 (Q.B. Master), refd to. [paras. 8, 85].

Amon v. Raphael Tuck & Sons Ltd., [1956] 1 All E.R. 273 (Q.B.D.), refd to. [para. 13].

Vandervell's Trusts, Re; White v. Vandervell Trustees and Inland Revenue Commissioner, [1970] 1 Ch. 44 (C.A.), revd. [1971] A.C. 912 (H.L.), refd to. [paras. 18, 19].

Sanders Lead Co. v. Entores Metal Brokers Ltd., [1984] 1 W.L.R. 452 (C.A.), refd to. [para. 21].

Provident Insurance plc v. Richardson, [1997] E.W.J. No. 105 (C.A.), refd to. [para. 22].

White v. London Transport Executive, [1971] 3 All E.R. 1 (C.A.), refd to. [para. 24].

Ronark Developments v. Hamilton (City) et al. (1974), 4 O.R.(2d) 195 (Div. Ct.), refd to. [para. 27].

Orangeville Highlands Ltd. et al. v. Mono (Township) et al. (1974), 5 O.R.(2d) 266 (Div. Ct.), refd to. [para. 27].

Multi-Malls Inc. et al. v. Ontario (Minister of Transportation and Communications) et al. (1975), 7 O.R.(2d) 717 (Div. Ct.), refd to. [para. 27].

Starr v. Puslinch (Township) et al. (1976), 12 O.R.(2d) 40 (Div. Ct.), refd to. [para. 27].

240953 Developments Ltd. v. Hamilton (City), [1977] O.J. No. 799 (Div. Ct.), refd to. [para. 30].

Cambridge Leaseholds Ltd. v. Oakville (Town), [1978] O.J. No. 393 (Div. Ct.), refd to. [para. 30].

Johnson et al. v. Milton (Town) (No. 1) (1981), 34 O.R.(2d) 289 (H.C.), refd to. [para. 30].

Tessis v. Agil Holdings Ltd., [1982] O.J. No. 26 (C.A.), refd to. [para. 30].

Institut de Notre Dame des Missions v. Brandon (City) (1986), 39 Man.R.(2d) 185 (C.A.), refd to. [para. 36].

Athabasca Industries Ltd. v. Lambair Ltd., Lamb and Boyes (1989), 60 Man.R.(2d) 179 (C.A.), refd to. [para. 37].

Pitzel v. Children's Aid Society of Winnipeg (1984), 29 Man.R.(2d) 297 (Q.B. Fam. Div.), refd to. [para. 38].

Mr. Pawn Ltd. v. Winnipeg (City), [1999] 2 W.W.R. 521; 132 Man.R.(2d) 211 (Q.B.), refd to. [paras. 64, 85].

Sawatzky v. Riverview Health Centre Inc. (1998), 133 Man.R.(2d) 41 (Q.B.), refd to. [para. 65].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 5.03(3), rule 13.01(1) [para. 6].

Authors and Works Noticed:

Busby, Karen, Manitoba Queen's Bench Rules Annotated (1992) (Looseleaf), p. 2-15 [para. 14].

Counsel:

R. Kravetsky, for the appellant;

M.S. Samphir and D.A.M. Pambrun, for the respondent, the City of Winnipeg;

C.R. MacArthur, Q.C., for the respondent, True North Entertainment Complex Limited Partnership.

These appeals were heard on September 21, 2001, before Helper, Kroft and Steel, JJ.A., of the Manitoba Court of Appeal. The decision of the Court of Appeal was delivered on November 30, 2001, when the following opinions were filed:

Helper, J.A. (Steel, J.A., concurring) - see paragraphs 1 to 74;

Kroft, J.A., dissenting in part - see paragraphs 75 to 94.