Thomas et al. v. Edmonton (City) et al., 2016 ABCA 57

• Judge: Fraser, C.J.A., Martin and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 03, 2015
• Citations: 2016 ABCA 57;(2016), 616 A.R. 195

Thomas v. Edmonton (2016), 616 A.R. 195; 672 W.A.C. 195 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. MR.109

Donna Thomas, Anthony Fields, Patricia Fields, Jim Hole and Marcia Hole (appellants) v. The City of Edmonton and the City of Edmonton Subdivision and Development Appeal Board (respondents) and The House Company Ltd. (respondent by Order)

(1403-0248-AC; 2016 ABCA 57)

Indexed As: Thomas et al. v. Edmonton (City) et al.

Alberta Court of Appeal

Fraser, C.J.A., Martin and Slatter, JJ.A.

March 22, 2016.

Summary:

At issue in this appeal was whether the City of Edmonton Subdivision and Development Appeal Board (SDAB) could waive a community consultation required under Edmonton Bylaw 12800 (Zoning Bylaw) as part of its power under s. 687(3)(d) of the Municipal Government Act to vary requirements in a land use bylaw and grant a development permit.

The Alberta Court of Appeal, Slatter, J.A., dissenting, allowed the appeal. The SDAB had no authority under s. 687(3)(d) of the Act to waive the community consultation requirement mandated in the Zoning Bylaw. Such community consultation was a condition precedent to the issuance of a valid development permit. The failure to comply with this requirement constituted a breach of procedural fairness. This breach could not be waived by the SDAB in the exercise of its variance power under s. 687(3)(d) of the Act.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - At issue in this appeal was whether the City of Edmonton Subdivision and Development Appeal Board (SDAB) could waive a community consultation required under a zoning bylaw as part of its power under s. 687(3)(d) of the Municipal Government Act to vary requirements in a land use bylaw and grant a development permit - The Alberta Court of Appeal answered the question in the negative - The community consultation requirement mandated in the zoning bylaw was a condition precedent to the issuance of a valid development permit - The failure to conduct community consultation constituted a breach of procedural fairness - Further, there was no merit to the argument that the procedural unfairness was "cured" by the SDAB's hearing the appellants' concerns - That the appellants were heard pursuant to s. 687(1)(c) or (d) of the Act was no substitute for community consultation - These were separate rights - See paragraphs 1 to 64.

Administrative Law - Topic 2529

Natural justice - Effect of denial of - Curing of procedural defects in a multi-stage administrative process - [See Administrative Law - Topic 2266 ].

Land Regulation - Topic 2801

Land use control - Exemptions - Nonconforming use - Use not conforming to zoning bylaw - [See Administrative Law - Topic 2266 ].

Land Regulation - Topic 3272

Land use control - Building or development permits - Appeals to appeal board - Jurisdiction - [See Administrative Law - Topic 2266 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - Standard of review - At issue in this appeal was whether the City of Edmonton Subdivision and Development Appeal Board (SDAB) could waive a community consultation required under a zoning bylaw as part of its power under s. 687(3)(d) of the Municipal Government Act to vary requirements in a land use bylaw and grant a development permit - The Alberta Court of Appeal held that this was a question of law to be reviewed for correctness - "This Court does not owe deference to the SDAB's interpretation of the Act or land use bylaws unless the expertise of the Board is engaged ... The reason is simple. It is 'untenable that planning legislation means one thing in one municipality and something else in another' ... The expertise of the SDAB is not engaged in the present case since the question is one of pure statutory interpretation." - See paragraph 17.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - At issue in this appeal was whether the City of Edmonton Subdivision and Development Appeal Board (SDAB) could waive a community consultation required under a zoning bylaw as part of its power under s. 687(3)(d) of the Municipal Government Act to vary requirements in a land use bylaw and grant a development permit - The Alberta Court of Appeal answered the question in the negative - In the absence of a facial inconsistency, the Act and zoning bylaw should be interpreted in a manner that ensured harmony, coherence and consistency between them - Further, the Act had to be read in its entire context, in its grammatical and ordinary sense and in harmony with the legislative scheme, its object and the intention of the legislature - The court stated that: "In summary, statutory construction is ultimately a search for the intention of the legislator. That search requires consideration of the specific words in question, the scheme, purpose and structure of the part of the enactment in which the words are found, along with other legislation (including delegated legislation) touching a similar or related matter. In that way, the overall objective of the specific enactment is identified and fulfilled." - See paragraphs 18 to 23.

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See Statutes - Topic 501 ].

Statutes - Topic 2407

Interpretation - Interpretation of words and phrases - General principles - By context - [See Statutes - Topic 501 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See Statutes - Topic 501 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - [See Statutes - Topic 501 ].

Counsel:

K.D. Wakefield, Q.C., for the appellants;

M.S. Gunther (no appearance), for the respondent, City of Edmonton;

K.L. Hurlburt, for the respondent, City of Edmonton Subdivision and Development Appeal Board;

J. Thompson (no appearance), for the respondent by Order, The House Company Ltd.

This appeal was heard on November 3, 2015, by Fraser, C.J.A., Martin and Slatter, JJ.A., of the Alberta Court of Appeal, who delivered the following decision on March 22, 2016, which included the following opinions:

Fraser, C.J.A. (Martin, J.A., concurring) - see paragraphs 1 to 66;

Slatter, J.A., dissenting - see paragraphs 67 to 82.