The City’s Appeal Committee overturned a Variance Order that allowed the Applicant to subdivide his property. An application for judicial review of this decision was dismissed. The Court held that the Appeal Committee did not err in its interpretation of the criteria set out in section 247(3) of the City of Winnipeg Charter. No manifest injustice occurred and the decision was not arbitrary, oppressive or improper. The Appeal Committee did not act in bad faith and there was no breach of natural justice.

Administrative law – Municipalities – Planning and zoning – Variance orders – Decisions of administrative tribunals – Municipal Appeal Committee – Judicial review – Failure to provide reasons – Procedural requirements and fairness – Natural justice

Rohs v. Winnipeg (City), [2006] M.J. No. 275, Manitoba Court of Queen’s Bench, July 6, 2006, McCawley J.

The Applicant sought judicial review of a Variance Appeal Order made by the City of Winnipeg Appeal Committee which overturned a Variance Order that allowed the Applicant to subdivide his property into two residential lots. The Applicant asserted that the Appeal Committee erred in its interpretation of the criteria set out in section 247(3) of the City of Winnipeg Charter, that it acted in bad faith and that it failed to observe the rules of natural justice.

Section 247(3) of the City of Winnipeg Charter sets out the criteria for approving a variance with respect to a property. The thrust of the Applicant’s argument was that it was not sufficient for the Appeal Committee to simply state that the applicable criteria had not been met without it being clear on the record what the decision-making process was and the reasons for arriving at the decision.

Upon a review of the transcript the Court was satisfied that the Appeal Committee properly considered the appropriate criteria that governs its considerations and applied them to the decision. The Court found that the Appeal Committee, while clearly being aware of other matters of concern that had been raised by the area residents, restricted its ultimate decision to the municipal purposes contained within the identified criteria in section 247(3). To find otherwise would set an impossibly high standard for a process that involved participation by the public and would mean the Committee’s decision would be invalidated at the mere mention of matters falling outside the criteria. While it was always preferable to have clear and cogent reasons for any decision, to hold the Appeal Committee to the same standard as a Court of law would also be unrealistic and impractical. There was no basis to find in this case that a manifest injustice had occurred, or that the decision was arbitrary, oppressive or improper. As such, the Court held that the Appeal Committee did not err in its interpretation of the criteria set out in section 247(3) of the City of Winnipeg Charter.

With respect to whether the Appeal Committee acted in bad faith, the Court noted that the onus of establishing that bad faith existed fell on the person alleging it. Supposition and suspicion were no substitutes for evidence. The Court found that nothing in the evidence demonstrated that the Appeal Committee was substantially influenced in reaching its conclusion by improper or irrelevant considerations to warrant curial interference and a finding of bad faith.

The Court then considered the Applicant’s argument that the Appeal Committee failed to comply with the principles of procedural fairness by allowing a city councillor to be present at the hearing and make submissions in support of the appeal when he was not a party to the proceedings nor a member of the Appeal Committee. The Court noted that nothing in the City’s bylaws prohibited this person from participating in the appeal as he did. Nothing on the record remotely suggested that others were not afforded an opportunity to speak. The Court held that a flexible approach should be taken in such cases, recognizing that the test of reasonable apprehension of prejudgment was too stringent and could not have been intended by the legislature to apply to municipal councillors. There was nothing inherent in councillors’ hybrid functions that made it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have either a personal or other interest. Where such an interest is found, both at common law and by statute a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well informed person would conclude that it might influence the exercise of that duty. Adopting that approach, the Court found no basis on which the Councillor’s participation should vitiate the Appeal Committee’s decision. The Applicant therefore had not demonstrated that the Appeal Committee failed to observe the rules of natural justice and, in particular, its duty to be fair.

The application was therefore dismissed.

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