Tymchak v. Subdivision and Development Appeal Board (Edmonton) et al., (2012) 519 A.R. 295

• Judge: Côté, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 12, 2012
• Citations: (2012), 519 A.R. 295;2012 ABCA 22

Tymchak v. Dev. Appeal Bd. (2012), 519 A.R. 295; 539 W.A.C. 295 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.102

Wayne Tymchak and Oksana Tymchak (applicants) v. The Subdivision and Development Appeal Board of Edmonton (SDAB)

(respondent) and The City of Edmonton (respondent) and Tamara Nicholson and Todd Nicholson (respondents by order)

(1103-0249-AC; 2012 ABCA 22)

Indexed As: Tymchak v. Subdivision and Development Appeal Board (Edmonton) et al.

Alberta Court of Appeal

Côté, J.A.

January 24, 2012.

Summary:

A development officer refused the Nicholsons' request for a building permit for a new home in an established neighbourhood because some zoning requirements (especially setbacks) were not met. The Nicholsons appealed to the Subdivision and Development Appeal Board which had the power to relax the requirements. The Board allowed the appeal, granted variances and granted the permit. The applicants (neighbours) applied for leave to appeal the decision. At issue was: (1) whether the applicants showed any suitable question of law or jurisdiction to justify leave to appeal to the Court of Appeal; and (2) whether the motion for leave was served in time.

The Alberta Court of Appeal, per Côté, J.A., denied leave, holding that the motion failed both on the merits, and on the issue of time. The court ordered the applicants to pay (jointly and severally) one set of costs of all of the Court of Appeal proceedings to the Nicholsons.

Editor's Note: An application for an adjournment of the hearing of this matter, was granted earlier, in a decision reported at [2011] A.R. Uned. 551.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - [See first Land Regulation - Topic 4145 ].

Administrative Law - Topic 6127

Judicial review - Statutory appeal - Leave to appeal - Question of law or jurisdiction - [See first Land Regulation - Topic 4145 ].

Land Regulation - Topic 2532

Land use control - Zoning bylaws - Variances - When available - A development officer refused the Nicholsons' request for a building permit for a new home in an established neighbourhood because some zoning requirements (especially setbacks) were not met - The Nicholsons appealed to the Subdivision and Development Appeal Board which had the power to relax the requirements - They submitted a revised site plan, which changed the placement of the house on the lot - The Board allowed the appeal, granted variances and granted the permit - The applicants (neighbours) applied for leave to appeal the decision - The Alberta Court of Appeal, per Côté, J.A., held, inter alia, that the Board did not err in law by failing to discuss the tests for a variance in s. 11.4(1) of the bylaw - They were fairly narrow, and required unnecessary hardship, or practical difficulties peculiar to that lot - That section expressly gave the tests for relaxation by the development officer - The Board was subject to different tests, set by s. 687(3)(d) of the Municipal Government Act (MGA) - They were laxer: no undue or material interference to neighbours' land or the neighbourhood - There was no reason why the Board could or should use the tests in the bylaw - Furthermore, for a generation or more, Alberta planning law had given development officers no power to relax the zoning law, confining that power to the Board - Section 11.4 of the bylaw was a much more recent enactment, passed in light of the well-known history and statute - That reinforced the court's view that the Board need not satisfy s. 11.4 when the MGA permitted it to relax a bylaw requirement, and the MGA's tests were met - A bylaw could not validly contradict an "enactment" of the Province (MGA, s. 13) - See paragraphs 19 to 21.

Land Regulation - Topic 2532

Land use control - Zoning bylaws - Variances - When available - [See first Land Regulation - Topic 4145 ].

Land Regulation - Topic 2533

Land use control - Zoning bylaws - Variances - Procedure - [See first Land Regulation - Topic 4145 ].

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - [See Land Regulation - Topic 4144 and both Land Regulation - Topic 4145 ].

Land Regulation - Topic 4144

Land use control - Appeals to the courts - Leave to appeal - General - A development officer refused the Nicholsons' request for a building permit for a new home in an established neighbourhood because some zoning requirements (especially setbacks) were not met - The Nicholsons appealed to the Subdivision and Development Appeal Board which had the power to relax the requirements - The Board allowed the appeal, granted variances and granted the permit - The applicants (neighbours) filed a notice of motion with the Court of Appeal, seeking leave to appeal - It was filed within the time prescribed by statute, but the only respondent named was the Board - The statute required that the municipality also be a respondent - It was eventually added by an unopposed order of a judge, but that was some weeks after the statutory deadline for filing and service of the notice of motion - No one was served with the notice until about five days after the statutory deadline - The entity served then was the Board - The municipality was not named as a party then, and did not get copies until quite some time after the deadline for service - The Alberta Court of Appeal, per Côté, J.A., denied leave, where, inter alia, the motion had not been served in time - The court held that it lacked jurisdiction to extend the time - Alternatively, it would not have extended the time here - See paragraphs 1 to 9 and 33 to 60.

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On a question of law - A development officer refused the Nicholsons' request for a building permit for a new home in an established neighbourhood because some zoning requirements (especially setbacks) were not met - The Nicholsons appealed to the Subdivision and Development Appeal Board which had the power to relax the requirements - They submitted a revised site plan, which changed the placement of the house on the lot - The Board allowed the appeal, granted variances and granted the permit - The applicants (neighbours) applied for leave to appeal the decision - They complained, inter alia, of a lack of notice of the amended site plan - The Alberta Court of Appeal, per Côté, J.A., denied leave where, inter alia, the applicants had not showed any suitable question of law justifying leave - The applicants' presentation to the Board was after the discussion of the new plan - Short notice was not the same as no notice, and the amount of change on the plan was not large enough to make it impossible to understand, nor to meet the Nicholsons' revised case - It was dangerous for the Court of Appeal to allow an appeal on a ground not raised before the tribunal under appeal, if a timely objection to that tribunal could well have removed the problem (e.g., by a brief adjournment, or a chance to reply or lead more evidence) - The chance of the Court of Appeal allowing the appeal on that ground was slight - It would also be unfair - See paragraphs 1 to 7 and 10 to 15.

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On a question of law - A development officer refused the Nicholsons' request for a building permit for a new home in an established neighbourhood because some zoning requirements (especially setbacks) were not met - The Nicholsons appealed to the Subdivision and Development Appeal Board which had the power to relax the requirements - They submitted a revised site plan, which changed the placement of the house on the lot - The Board allowed the appeal, granted variances and granted the permit - The applicants (neighbours) applied for leave to appeal the decision - They complained, inter alia, of the non-use of certain allegedly relevant evidence and the use of other allegedly irrelevant evidence - The Alberta Court of Appeal, per Côté, J.A., held that the applicants' arguments were without merit - In any event, the two questions of evidence raised were totally, or almost entirely, questions of fact - The Court of Appeal had no power to hear such questions - See paragraphs 22 to 28.

Practice - Topic 8872

Appeals - Leave to appeal - Extension of time for application for - [See Land Regulation - Topic 4144 ].

Cases Noticed:

Strathcona (County) v. Allan et al. (2006), 384 A.R. 290; 367 W.A.C. 290; 2006 ABCA 129, refd to. [para. 32].

Ouimet et al. v. Subdivision and Development Appeal Board (Sturgeon (County)) et al. (2002), 312 A.R. 181; 281 W.A.C. 181; 2002 ABCA 187, refd to. [para. 32].

K.C. v. College of Physical Therapists (Alta.) (1998), 212 A.R. 16; 168 W.A.C. 16; 1998 ABCA 213, refd to. [para. 41].

Riverside Community Association v. Calgary (City) and Patricia Investments Ltd. (1982), 37 A.R. 26; 19 Alta. L.R.(2d) 361 (C.A.), dist. [para. 42].

Lamont No. 30 (County) v. St. Michael and Area Landowners Protection Society et al. (1998), 216 A.R. 168; 175 W.A.C. 168; 1998 ABCA 150, dist. [para. 42].

Houg Alberta Ltd. v. 417034 Alberta Ltd. (1991), 117 A.R. 196; 2 W.A.C. 196 (C.A.), refd to. [para. 45].

Sommers v. Subdivision and Development Appeal Board (Red Deer No. 23 (County)) et al. (2000), 266 A.R. 90; 228 W.A.C. 90; 2000 ABCA 225, refd to. [para. 45].

Northern Sunrise (County) v. De Meyer et al. (2009), 454 A.R. 88; 455 W.A.C. 88; 2009 ABCA 205, dist. [para. 45].

B.D.W. v. G.B.G.R. (1989), 68 Alta. L.R.(2d) 377 (C.A.), refd to. [para. 45].

Hudson Fashion Shoppe, Re, [1926] S.C.R. 26, refd to. [para. 45].

J.U. v. Regional Director of Child Welfare (Alta.) et al. (2001), 281 A.R. 396; 248 W.A.C. 396; 2001 ABCA 125, leave to appeal denied (2001), 283 N.R. 398; 299 A.R. 305; 266 W.A.C. 305 (S.C.C.), refd to. [para. 45].

Murphy v. Welsh, [1993] 2 S.C.R. 1069; 156 N.R. 263; 65 O.A.C. 103, refd to. [para. 45].

Lakevold et al. v. Dome Petroleum Ltd. (1979), 181 A.R. 254; 116 W.A.C. 254 (C.A.), refd to. [para. 45].

Yorkshire Trust Co. v. Mallett (1986), 71 A.R. 23 (C.A.), refd to. [para. 45].

Van Panhuis v. Lamont (Town) et al., [2000] A.R. Uned. 234; 2000 ABCA 201, refd to. [para. 48].

Seabolt Watershed Association v. Yellowhead (County) et al. (2002), 303 A.R. 347; 273 W.A.C. 347; 2002 ABCA 124, refd to. [para. 48].

Edith Lake Service Ltd. and Hoyda Holdings v. Edmonton (City) (1981), 34 A.R. 390 (C.A.), refd to. [para. 48].

Authors and Works Noticed:

Laux, Frederick A., Planning Law and Practice in Alberta (Looseleaf Jan. 2010), pp. 16-10, 16-11 [para. 35].

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), vol. 4, c. 76, Part C.15, p. 76-22 [para. 45].

Counsel:

J.A. Agrios, Q.C., for the applicants, Wayne Tymchak and Oksana Tymchak;

K.L. Hurlburt, for the respondent, SDAB (no appearance);

J. Johnson, for the respondent, City of Edmonton (no appearance);

K.D. Wakefield, Q.C., for the respondents by order, Tamara Nicholson and Todd Nicholson.

This application for leave to appeal was heard on January 12, 2012, by Côté, J.A., of the Alberta Court of Appeal, who delivered the following decision on January 24, 2012.