On an appeal from a dismissal of an application for judicial review of a series of decisions made by the City of Winnipeg in relation to the rezoning and development of a property, the Court of Appeal held that the application judge did not misapprehend either the law or the facts and exercised his discretion correctly in dismissing the application. The City had the jurisdiction to make the decisions in question and did not lose jurisdiction by the manner in which it made them.

Administrative law – Municipalities – Jurisdiction – Planning and zoning – Decisions of administrative tribunals – Municipal councils – Rules and by-laws – Judicial review – Procedural requirements and fairness – Statutory powers – Standard of review – Correctness

Hechter v. Winnipeg (City), [2004] M.J. No. 357, Manitoba Court of Appeal, June 28, 2004, Scott C.J.M., Monnin and Steel JJ.A.

An appeal was commenced from a dismissal of an application for judicial review of a series of decisions made by the City of Winnipeg in relation to the rezoning and development of property. The Applicants were a group of property owners who wished to stop the development of an eight-unit condominium project on the property, arguing that the City acted without jurisdiction or, procedurally, without due fairness, in deciding to allow the development.

The court noted that the City was a body created by statute and that it therefore had only the authority that had been expressly conferred on it. On an application for judicial review, a public body must be able to demonstrate that there was a statutory provision authorizing the action in question, that its actions fell within the grant of authority and that it complied with the particular requisites for the exercise of the authority. The determination of whether a public body has acted within its jurisdiction is an exercise in statutory construction. As such, the court held that questions relating to the jurisdiction and authority of municipalities were to be reviewed on a standard of correctness.

The court noted that a municipality could not regulate a matter by way of a zoning agreement where the legislation required the matter be contained in a bylaw. However, whether the legislation required a bylaw in this particular case was a question of statutory interpretation. The court noted that the authority to enact zoning bylaws was contained in the City of Winnipeg Act, S.M. 1989-90, c.10, where Council could pass development bylaws “to control or prohibit the use of land and buildings and development in the city or a part of the city.” The court noted that the interpretation of the act asserted by the Applicants was a restrictive one and not in accord with the broad and liberal approach to statutory interpretation. Given the purpose of the legislation was to regulate development, not to restrict development, and given the accepted canon of statutory interpretation that the word “use” should be given a broad, liberal and remedial interpretation, there was no reason to read in the kind of restrictive interpretation the Applicants had submitted. Otherwise, the City would be forced to have a great number of zoning bylaws to accommodate specific developments. Moreover, reading the Act as a whole, it was clear that the bylaws were meant to set out a general plan and not to regulate the specifics of every conceivable situation. The City therefore did not err when it acted by way of a zoning agreement rather than by bylaw.

The court also held that the application judge did not err when he held that the procedure adopted by the City to amend the development agreement was fair to third parties and not in any way inconsistent with the Act, even though the procedure may not have been the same as that followed for the passage of bylaws. While a municipality was bound by a duty of procedural fairness when it made administrative decisions affecting individual rights, privileges or interests, the court held that the transcript indicated that the Appellants had a fair opportunity to advance their position, and the ultimate decision of the Community Committee was a compromise of the positions being advanced by the developer and the local residents. The Appellants were afforded an adequate opportunity to make their submissions.

With respect to the approval of site plans, the court noted that the approval was an administrative task intended to implement the political decision of the community centre as opposed to affording the interested parties another opportunity to argue their position. There was no evidence before the court that the site plans approved in the meetings were not in accordance with the representations made by the developer in December 2002. The court noted that it was obvious that the Appellants were not satisfied by the decision of the Community Committee but the approval of the site plans by the Committee was not intended to afford the Appellants a second opportunity to repeat their concerns.

The court therefore held that the City had the statutory authority to regulate density by way of a zoning agreement after rezoning the property to a multi-family residential district. They had the statutory authority to amend the zoning agreement. In so acting, they did not breach their duty of fairness to the Appellants. The appeal was therefore dismissed.

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