Corporations who had commenced a re-zoning application to permit construction of a five-storey apartment building appealed the decision of a reviewing judge declaring an amending bylaw invalid due to a breach of procedural fairness during the hearing to adopt the bylaw

Administrative law – Municipalities – Planning and zoning – Power to amend by-laws – Judicial review – Procedural requirements and fairness – Public hearings – Standard of review – Correctness

Keefe v.Clifton Corp., [2005] A.J. No. 371, Alberta Court of Appeal, April 12, 2005, McFadyen, Russell and Berger JJ.A.

Residents of the area where the apartment building was to be constructed were concerned about the impact of the building on traffic patterns. A re-zoning application hearing was held where the City and the developer made presentations to local residents. The respondent residents retained a transportation consultant to assist them at the hearing. Partway through the hearing the consultant became ill and was unable to be flown in from Vancouver to attend the hearing for the purpose of providing his traffic analyses. Although the respondents requested that he be permitted to attend by teleconference, City Council voted against permitting such a course of action.

After the Bylaw was passed the respondents applied for judicial review, requesting that the Bylaw be declared invalid. The application was allowed based on a breach of procedural fairness for the failure to permit the traffic consultant to attend the hearing by telephone. The re-zoning Corporations appealed.

On standard of review, the Court held that “issues concerning a reviewing judge’s characterization of an issue and decisions on issues of procedural fairness are questions of law reviewable by this Court on a correctness standard”. The Court went on to state:

The appellants argue that courts ought to review intra vires municipal actions on a standard of patent unreasonableness, relying on Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13 at para. 37. However, as the issue in that case did not involve an allegation of procedural unfairness it has little relevance to the issue before this Court.

A distinction must be drawn between procedural and substantive issues. Only the latter are subject to a pragmatic and functional analysis: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. In that case Binnie J. stated at para. 100: ‘[i]t is for the courts, not the Minister, to provide the legal answer to procedural fairness questions’. Determination of procedural fairness requires an assessment of the procedures followed for compliance with the rules of natural justice.”

The City Council’s duty of procedural fairness was to be considered using the factors originating from Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817:

The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body.

The reviewing judge considered that the nature of the decision making process involved the traffic concerns and the impact of the proposed development on residents. On appeal, the Court held that this was not incorrect. A duty of procedural fairness was required. The fact of the public hearing meant that there should be a fairly high duty of procedural fairness.

The reviewing judge also pointed out that the City’s own policies contained provisions for participation in meetings by electronic and telephonic means when participants are in remote locations. The import of the decision was seen to potentially impact traffic and residents of the area, rather than being limited to a subjective loss of enjoyment for the residents of their properties. The City Council did have a large degree of procedural autonomy, a factor weighing against deference, but in balancing all five factors the reviewing judge was held to have correctly determined that a relatively high duty of procedural fairness was required.

The failure to permit the consultant to participate in the hearing by telephone was found to be a breach of procedural fairness. The breach was held to have created prejudice because of the failure of the City Council to consider its own policy and the resultant lack of ability to respond to an attack on the credibility of the respondent’s traffic consultant that had arisen during the hearing.

The appeal was dismissed.

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