World Health Edmonton Inc. v. Edmonton (City) et al., (2015) 609 A.R. 156

• Judge: Berger, Bielby and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 06, 2015
• Citations: (2015), 609 A.R. 156;2015 ABCA 377

World Health Edmonton Inc. v. Edmonton (2015), 609 A.R. 156; 656 W.A.C. 156 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. DE.027

World Health Edmonton Inc. (appellant/plaintiff/applicant) v. The City of Edmonton and The Subdivision and Development Appeal Board of the City of Edmonton (respondents/defendants/respondents) and Kensington G.P. Ltd. (respondent by Order/respondent by Order/respondent by Order)

(1403-0180-AC; 2015 ABCA 377)

Indexed As: World Health Edmonton Inc. v. Edmonton (City) et al.

Alberta Court of Appeal

Berger, Bielby and Veldhuis, JJ.A.

December 7, 2015.

Summary:

Kensington GP Ltd. owned and operated a shopping centre that was partially destroyed by a fire. The City of Edmonton issued a development permit which allowed Kensington to redevelop the site. Section 20.1(3) of Zoning Bylaw 12800 required the City to publish "a notice describing the development" in a daily newspaper. In December 2013, the City published a notice of the permit's issuance in the Edmonton Journal. World Health Edmonton Ltd., one of Kensington's tenants, did not learn of the development permit until May 2014, at which point it filed a notice of appeal. The City's Subdivision and Development Appeal Board (SDAB) declined to hear the appeal on the ground that it lacked jurisdiction because the appeal was not commenced "within 14 days ... after the date on which the notice of the issuance of the permit was given in accordance with the land use bylaw" (Municipal Government Act, s. 686(1)(b)). World Health applied for leave to appeal.

The Alberta Court of Appeal, per Brown, J.A., in a decision reported at (2014), 584 A.R. 214; 623 W.A.C. 214, allowed the application in part. World Health was permitted to appeal on the issues of (1) whether the SDAB erred in law in finding that the notice published in the Edmonton Journal constituted "notice describing the development"; and (2) if the SDAB did so err, whether the appeal period had not yet commenced.

The Alberta Court of Appeal, Veldhuis, J.A., dissenting, allowed the appeal and remitted the matter for rehearing by a differently constituted panel of the SDAB.

Land Regulation - Topic 3211

Land use control - Building or development permits - Duties of owner after issuance - Kensington GP Ltd. owned and operated a shopping centre that was partially destroyed in a fire - The City of Edmonton issued a development permit which allowed Kensington to redevelop the site - Under s. 20.1(3) of Zoning Bylaw 12800, the City was required to publish "a notice describing the development" in a daily newspaper - In December 2013, the City published a notice in the Edmonton Journal - World Health Edmonton Ltd., one of Kensington's tenants, filed a notice of appeal in May 2014 - The City's Subdivision and Development Appeal Board (SDAB) declined to hear the appeal because it was not commenced "within 14 days ... after the date on which the notice of the issuance of the permit was given in accordance with the land use bylaw" (Municipal Government Act, s. 686(1)(b)) - World Health appealed, arguing that the SDAB erred in law in finding that the notice published in the Edmonton Journal "described" the development - The Alberta Court of Appeal allowed the appeal - The notice had to provide information sufficient to enable a reasonable reader to appreciate that his or her interests might be adversely affected by the development - In this case, the notice only referenced one of the 11 municipal addresses that were affected by the permit - It gave no description of the site to be affected, nor did it mention that the permit authorized construction over portions of a no-build area - It was irrelevant that World Health had not seen or read the notice and was therefore not misled by the inadequacies - The statutory preconditions to the commencement of a limitation period were not met - See paragraphs 10 to 16.

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - [See Land Regulation - Topic 4143 ].

Land Regulation - Topic 3277

Land use control - Building or development permits - Appeals to appeal board - Grounds - [See Land Regulation - Topic 3211 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - Standard of review - Kensington GP Ltd. owned and operated a shopping centre that was partially destroyed in a fire - The City of Edmonton issued a development permit which allowed Kensington to redevelop the site - Under s. 20.1(3) of Zoning Bylaw 12800, the City was required to publish "a notice describing the development" in a daily newspaper - In December 2013, the City published a notice in the Edmonton Journal - World Health Edmonton Ltd., one of Kensington's tenants, filed a notice of appeal in May 2014 - The City's Subdivision and Development Appeal Board (SDAB) declined to hear the appeal because it was not commenced "within 14 days ... after the date on which the notice of the issuance of the permit was given in accordance with the land use bylaw" (Municipal Government Act, s. 686(1)(b)) - World Health appealed - At issue was whether the SDAB erred in law in finding that the notice published in the Edmonton Journal "described" the development - The Alberta Court of Appeal held that this issue had to be reviewed for correctness - Determining the requirements of adequate notice did not engage the expertise of the SDAB - See paragraph 9.

Cases Noticed:

Young v. Okotoks (Town) et al., [2015] A.R. Uned. 368; 2015 ABCA 345, refd to. [para. 9].

McCauley Community League v. Edmonton (City) et al. (2012), 522 A.R. 98; 544 W.A.C. 98; 35 Admin. L.R.(5th) 181; 2012 ABCA 86, refd to. [paras. 9, 36].

Cameron Corp. et al. v. Subdivision and Development Appeal Board (Edmonton) et al., [2012] A.R. Uned. 302; [2012] A.W.L.D. 4302; 2012 ABCA 254, refd to. [paras. 9, 36].

1694192 Alberta Ltd. v. Subdivision and Development Appeal Board (Lac La Biche (County)) et al. (2014), 584 A.R. 112; 623 W.A.C. 112; 2014 ABCA 319, refd to. [paras. 9, 36].

Bowen v. City of Edmonton (1977), 3 A.R. 63 (C.A.), refd to. [para. 12].

Coventry Homes Inc. v. Subdivision and Development Appeal Board (Beaumont (Town)) et al. (2001), 277 A.R. 278; 242 W.A.C. 278; 2001 ABCA 49, refd to. [paras. 17, 45].

Masellis et al. v. Subdivision and Development Appeal Board (Edmonton (City)) et al. (2011), 505 A.R. 231; 522 W.A.C. 231; 2011 ABCA 157, dist. [para. 18].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 41].

Mattel Inc. v. 3894207 Canada Inc. et al., [2006] 1 S.C.R. 772; 348 N.R. 340; 2006 SCC 22, refd to. [para. 41].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 44].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 44].

Counsel:

J.A. Agrios, Q.C., for the appellant;

M.S. Gunther, for the respondent, City of Edmonton;

J.W. Murphy, Q.C., for the respondent by Order, Kensington G.P. Ltd.

This appeal was heard on October 6, 2015, before Berger, Bielby and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Edmonton, Alberta, on December 7, 2015, and included the following opinions:

Berger and Bielby, JJ.A. - see paragraphs 1 to 20;

Veldhuis, J.A., dissenting - see paragraphs 21 to 61.