Sun Life Assurance Co. of Canada et al. v. St. John's (City) et al., 2006 NLCA 62

• Judge: Roberts, Rowe and Mercer, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 19, 2006
• Jurisdiction: Newfoundland and Labrador
• Citations: 2006 NLCA 62;(2006), 261 Nfld. & P.E.I.R. 55 (NLCA)

Sun Life v. St. John's (2006), 261 Nfld. & P.E.I.R. 55 (NLCA);

    790 A.P.R. 55

MLB headnote and full text

Temp. Cite: [2006] Nfld. & P.E.I.R. TBEd. NO.008

Sun Life Assurance Company of Canada (first appellant) and FHR Real Estate Corporation (second appellant) v. City of St. John's (first respondent) and Patrick Street Holdings Limited (second respondent)

(05/119; 2006 NLCA 62)

Indexed As: Sun Life Assurance Co. of Canada et al. v. St. John's (City) et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Roberts, Rowe and Mercer, JJ.A.

November 7, 2006.

Summary:

The owners of the Fairmont Hotel (the applicant) applied to set aside two decisions of the St. John's Municipal Council which approved a residential condominium development directly across from the hotel and approved a discretionary use respecting the residential use of the first floor.

The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported 251 Nfld. & P.E.I.R. 334; 752 A.P.R. 334, dismissed the application. The owners appealed.

The Newfoundland and Labrador Court of Appeal allowed the appeal.

Land Regulation - Topic 2003

Land use control - General principles - Application of legislation - [See Municipal Law - Topic 1422 ].

Land Regulation - Topic 3216.1

Land use control - Building or development permits - Grounds for refusal - Development contrary to the public interest (incl. interference with view of harbour) - [See Municipal Law - Topic 1422 ].

Land Regulation - Topic 4142

Land use control - Appeals to the courts - Right of appeal - The owners of the Fairmont Hotel (the applicant) applied to set aside two decisions of the St. John's Municipal Council which approved a residential condominium development directly across from the hotel and approved a discretionary use respecting the residential use of the first floor - The applicant expressed concerns about the impact that the four storey condominium would have on the view of the harbour - The applicant argued that the council's decision was based on a fundamental misapprehension of its authority to reject a proposed development even where all zoning requirements were met - The applications judge dismissed the application - The applicant appealed, seeking to raise a new issue (i.e., whether the development complied with the St. John's Development Regulations) - The city argued that consideration of this new issue was barred because there was a statutory appeal process available under the Urban and Rural Planning Act - The Newfoundland and Labrador Court of Appeal rejected this argument, holding that consideration of this issue was not barred by either the collateral attack rule or the availability of an alternative remedy - See paragraphs 22 to 27.

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - The owners of the Fairmont Hotel (the applicant) applied to set aside two decisions of the St. John's Municipal Council which approved a residential condominium development directly across from the hotel and approved a discretionary use respecting the residential use of the first floor - The applications judge dismissed the application - The applicant appealed, arguing that the judge (1) erred in law in determining that ss. 354 and 390 of the City of St. John's Act were in conflict with the Urban and Rural Planning Act, 2000 and supporting regulations; (2) erred in determining that the development application did not engage the discretionary authority of council; and (3) erred in failing to consider evidence presented by the applicant that applications for permits that were unusual in their size or scope were presented to council for approval by the city staff as allowed under s. 354 under the City of St. John's Act - The applicant also raised a fourth issue as to whether the proposed development complied with the City of St. John's Development Regulations - The Newfoundland and Labrador Court of Appeal held that the standard of review of correctness applied to issues one to three - With regard to the fourth issue, the court concluded that the application of the standard of correctness would not be warranted; rather the standard of reasonableness was the appropriate standard - See paragraphs 28 to 37.

Municipal Law - Topic 421

Councils - Decisions of - General - [See Municipal Law - Topic 1422 ].

Municipal Law - Topic 1422

Powers of municipalities - Respecting land - Development of - The owners of the Fairmont Hotel (the applicant) applied to set aside two decisions of the St. John's Municipal Council which approved a residential condominium development directly across from the hotel and approved a discretionary use respecting the residential use of the first floor - The applicant argued that the council's decision was based on a fundamental misapprehension of its authority to reject a proposed development even where all zoning requirements were met - The applications judge dismissed the application - The judge held that the legislative provisions relied on by the applicant to give council a discretion (i.e., ss. 354 and 390 of the City of St. John's Act) were in conflict with the provisions of the current governing legislation and supporting regulations (i.e., the Urban and Rural Planning Act (URPA) and 1994 Development Regulations) - Pursuant to s. 111(2) of the URPA, in the case of conflict with other legislation, the URPA would take precedence - Accordingly, provided that council had the authority to approve the development as a whole, council did not have the discretionary authority to reject the application, except insofar as the application concerned the proposed discretionary use of the first floor of the development - The applicant appealed - The Newfoundland and Labrador Court of Appeal held that the applications judge correctly decided the conflict and precedence issues - However, the court accepted the applicant's argument that the proposed development did not, in fact, comply with the URPA and Development Regulations - The court therefore quashed the impugned decisions and directed Council to reconsider the issue in accordance with the URPA and Development Regulations - See paragraphs 1 to 73.

Municipal Law - Topic 1582

Powers of municipalities - Exercise of powers - Discretionary powers - [See Municipal Law - Topic 1422 ].

Cases Noticed:

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. 24].

MacLeod v. Yong (1999), 121 B.C.A.C. 296; 198 W.A.C. 296; 67 B.C.L.R.(3d) 355 (C.A.), refd to. [para. 24].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161; 123 C.C.C.(3d) 449, refd to. [para. 26].

R. v. Klippert (Al) Ltd., [1998] 1 S.C.R. 737; 225 N.R. 107; 216 A.R. 1; 175 W.A.C. 1; 123 C.C.C.(3d) 474, refd to. [para. 26].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194; 9 C.C.C.(3d) 97, refd to. [para. 26].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 27].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 28].

Green v. Green (2005), 247 Nfld. & P.E.I.R. 82; 7 35 A.P.R. 82 (N.L.C.A.), refd to. [para. 28].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 30].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 30].

Stuckless (A.L.) and Sons Ltd. v. Newfoundland and Labrador (Minister of Forest Resouces and Agrifoods) et al. (2005), 244 Nfld. & P.E.I.R. 298; 726 A.P.R. 298 (N.L.C.A.), refd to. [para. 30].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 30].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 32].

Croplife Canada v. Toronto (City) (2005), 198 O.A.C. 35; 254 D.L.R.(4th) 40 (C.A.), refd to. [para. 41].

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. 44].

Archean Resources Ltd. v. Newfoundland (Minister of Finance) (2002), 215 Nfld. & P.E.I.R. 124; 644 A.P.R. 124 (Nfld. C.A.), refd to. [para. 45].

Winsor Homes Ltd. v. St. John's Municipal Council (1978), 20 Nfld. & P.E.I.R. 361; 53 A.P.R. 361 (N.L.C.A.), refd to. [para. 49].

Lewvest Ltd. v. St. John's (City) et al. (1981), 42 Nfld. & P.E.I.R. 186; 122 A.P.R. 186 (N.L.T.D.), affd. (1983), 42 Nfld. & P.E.I.R. 181; 122 AP.R. 181 (N.L.C.A.), refd to. [para. 50].

St. John's (City) v. St. John's Development Corp. (1986), 59 Nfld. & P.E.I.R. 39; 178 A.P.R. 39 (N.L.T.D.), refd to. [para. 53].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 64].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 65].

Statutes Noticed:

City of St. John's Act, R.S.N.L. 1990, c. C-17, sect. 354, sect. 390(1) [para. 15].

Development Regulations - see Urban and Rural Planning Act Regulations (Nfld. & Lab.).

Urban and Rural Planning Act, S.N.L. 2000, c. U-8, sect. 111(2) [para. 15].

Urban and Rural Planning Act Regulations (Nfld. & Lab.), 1994 Development Regulations, sect. 10.23 [para. 3].

Authors and Works Noticed:

Jones, David Phillip, and de Villars, Anne, Principles of Administrative Law (4th Ed. 2004), p. 431 [para. 36].

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (2nd Ed. 2000), pp. 63 to 68 [para. 24].

Counsel:

Robert Andrews, Q.C., and Raelene Lee, for the appellants;

Robert Bursey, for the first respondent;

No representation for second respondent.

This appeal was heard on September 19, 2006, before Roberts, Rowe and Mercer, JJ.A., of the Newfoundland and Labrador Court of Appeal. The following judgment was delivered for the court by Mercer, J.A., on November 7, 2006.