World Health Edmonton Inc. v. Edmonton (City) et al., 2014 ABCA 332

• Judge: Brown, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 07, 2014
• Citations: 2014 ABCA 332;(2014), 584 A.R. 214

World Health Edmonton Inc. v. Edmonton (2014), 584 A.R. 214; 623 W.A.C. 214 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. OC.060

World Health Edmonton Inc. (applicant) v. The City of Edmonton, Subdivision and Development Appeal Board of the City of Edmonton and Kensington G.P. Ltd. (respondents)

(1403-0180-AC; 2014 ABCA 332)

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

Alberta Court of Appeal

Brown, J.A.

October 14, 2014.

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., 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.

Land Regulation - Topic 3239

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

Land Regulation - Topic 3280

Land use control - Building or development permits - Appeals to appeal board - Time for - [See first Land Regulation - Topic 4145 ].

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law or jurisdiction - 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 - 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 applied for leave to appeal, arguing that the SDAB erred by finding that the limitation period commenced the day afer the notice appeared in the Edmonton Journal - The Alberta Court of Appeal, per Brown, J.A., refused to grant leave to appeal on this ground - Section 20.1(3) did not impose a specific requirement to give notice to non-landowners such as World Health, even though World Health was directly affected by the development - While the ground of appeal involved a question of law and was of sufficient importance to warrant further appeal (because its answer potentially impacted calculation of the appeal period for all such development permits in Edmonton), it had no reasonable prospect for success - See paragraphs 13 to 22.

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law or jurisdiction - 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 - 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 applied for leave to appeal, arguing that the SDAB erred by finding that the notice in the Edmonton Journal complied with s. 20.1(3) - The Alberta Court of Appeal, per Brown, J.A., granted leave to appeal on this ground - It was reasonably arguable that the SDAB erred in finding that the notice met the legal requirement of furnishing a description of the development - Such notice would typically be the only means by which affected non-landowners would learn of a pending development before it happened - The question was therefore of significance to the City, its residents and developers - General guidance as to what was minimally required by way of notice describing a development would be useful to the SDAB in assessing the notices given in the factual circumstances of individual cases - See paragraphs 23 to 27.

Municipal Law - Topic 1669

Powers of municipalities - Statutory appeals from exercise of powers - Leave to appeal - [See both Land Regulation - Topic 4145 ].

Practice - Topic 8876

Appeals - Leave to appeal - Grounds for granting leave - [See second Land Regulation - Topic 4145 ].

Cases Noticed:

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, dist. [para. 13].

McCauley Community League v. Edmonton (City) et al. (2012), 522 A.R. 98; 544 W.A.C. 98; 2012 ABCA 86, dist. [para. 13].

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, consd. [para. 13].

Airport Self Storage et al. v. Leduc (City) (2008), 439 A.R. 105; 42 M.P.L.R.(4th) 27; 2008 ABQB 12, dist. [para. 13].

HLG Investments Ltd. v. Cochrane (Town) et al., [2014] A.R. Uned. 32; 20 M.P.L.R.(5th) 1; 2014 ABCA 54, refd to. [para. 26].

Karagic v. Calgary (City) et al., [2012] A.R. Uned. 538; 2012 ABCA 309, refd to. [para. 26].

Emeric Holdings Inc. v. Edmonton (City) et al. (2009), 448 A.R. 31; 447 W.A.C. 31; 2009 ABCA 65, refd to. [para. 26].

Carleo Investments Ltd. v. Strathcona (County) et al., [2014] A.R. Uned. 304; 2014 ABCA 302, refd to. [para. 27].

Bowen v. City of Edmonton (1977), 3 A.R. 63; 75 D.L.R.(3d) 131 (C.A.), refd to. [para. 27].

Statutes Noticed:

Edmonton (City) Bylaws, Zoning Bylaw 12800, sect. 20.1(3) [para. 5].

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 686(1)(b) [para. 7].

Counsel:

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

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

P.A.L. Smith, Q.C., and K.L. Hurlburt (no appearance), for the respondent, Subdivision and Development Appeal Board of the City of Edmonton;

J.W. Murphy Q.C., and K.A. Haldane, for the respondent, Kensington G.P. Ltd.

This application for leave to appeal was heard on October 7, 2014, before Brown, J.A., of the Alberta Court of Appeal, who delivered the following reasons for decision at Edmonton, Alberta, on October 14, 2014.