A successful appeal was brought by residents of an apartment building that was ordered demolished despite a Letter of Request filed by the Appellants requesting an adjournment because their legal counsel could not attend at the Council meeting where the determination was made

Administrative law – Decisions of administrative tribunals – Municipal councils – Landlord and tenant – Conduct of tenant – By-laws – Practice and procedure – Administrative tribunals – Adjournment – Failure to provide reasons – Appeals – Disclosure – Judicial review – Procedural requirements and fairness – Natural justice – Remedies – Alternative remedies

Markwart v. Prince Albert (City), [2006] S.J. No. 676, Saskatchewan Court of Appeal, October 26, 2006, Sherstobitoff, Lane and Smith JJ.A.

An apartment building in Prince Albert, Saskatchewan, was a known gathering place for alcohol and drug use. City police had been dispatched to the property to investigate hundreds of complaints, including complaints of property crimes, violent assaults and a homicide.

In November 2004, City employees inspected the apartments and identified several deficiencies. A Notice of Non-compliance with the Nuisance Abatement Bylaw was served on the Appellants residents, including an Order that they vacate the building and that demolition proceed with the debris to be cleaned up within two months.

Two of the building residents appealed the demolition Order contained in the Notice to City Council pursuant to the Cities Act. On the day of the appeal, the Applicants filed a letter requesting an adjournment because their legal counsel was unable to attend the Council meeting. At the meeting, Council passed resolutions effectively denying the Applicants’ appeal. There was a resolution that demolition continue as scheduled.

The residents applied to Queen’s Bench Chambers for an Order quashing the resolutions and an Order quashing or staying the City’s decision to continue with the demolition Order. They also sought an Order quashing the Notice of Non-compliance issued by the City or, in the alternative, ordering that the matter be returned to City Council for an additional appeal hearing on the amended Notice of Non-compliance.

The Applicants were unsuccessful and brought an appeal from the Order dismissing their application for judicial review, as well as from the Order dismissing their appeal.

The appeal was dismissed because the Applicants were out of time and the judicial review was also dismissed. The judicial review decision was appealed to the Court of Appeal. The issues on the appeal were whether the amended Notice of Non-compliance entitled the Appellants to an additional appeal to City Council, whether they were denied procedural fairness by not being granted an adjournment, by being denied legal counsel, and by the failure of the City to give them a copy of the report that had been adopted as the reasons of Council’s decision to proceed with the demolition.

The Court held that the letter amending the Notice of Non-compliance did not grant the Applicants a new right of appeal in a situation where the amendment was to correct a typographical error and the Notice had given a date for compliance, which had already passed at the time of the alleged amendment. There was no prejudice that arose as a result of Council proceeding on the non-amended Notice of Compliance in the circumstances.

The City conceded that it owed a duty of procedural fairness that included a duty to provide reasons for denying the appeal. The Court held that the City did not have an obligation to provide reasons for denying the request for an adjournment because this did not have the requisite degree of importance.

The Court stated that there is no requirement for “archival” reasons such as those associated with Court judgments. There is flexibility as to the type of written reasons required. The Court referred to the decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, for the proposition that the requirement for reasons to be issued under the duty of fairness should involve sufficient flexibility to decision-makers to allow for various types of written explanations for a decision.

The Court held that the memorandum of the inspector of the property, which was accepted as the basis for the Order, was sufficient, along with the notes of an immigration officer, to comply with the duty to provide reasons.

However, the Court held that the City had breached its duty of procedural fairness by denying the Appellants’ request for an adjournment due to the unavailability of their counsel. The Court noted that the nature of the decision being made and the process followed in making it, the nature of the statutory scheme and the terms of the statute to which the body operates, the importance of the decision to the individuals affected, legitimate expectations of the persons challenging the decision, and the choice of procedure made by the administrative body itself, all needed to be considered in weighing the duty of procedural fairness and what it entailed in these circumstances. The Court held that the destruction of an asset held by the Appellants was clearly of significant importance to them. Blame was not to be placed on the shoulders of the Appellants for having chosen a lawyer who was unavailable on short notice. Although the decision to grant or refuse an adjournment is discretionary, the seriousness of the potential injury to the Applicant is a relevant consideration and the Chambers Judge was found to have failed to consider the serious effect that the decision would have on the Appellants. The Court held that the Applicants should have received a copy of the report on which the Council’s decision was based, so that they would know how the case was going to be presented to City Council. The Appellants could not properly respond without that information. The Court held that the Chambers Judge erred in the exercise of his discretion by failing to give effect to the lack of representation of the Appellants and the lack of disclosure to them of the reasons for the decision. The City attempted to raise an argument that the Appellants should be precluded from obtaining the relief of judicial review because there was an effective alternate remedy in the form of a statutory right of appeal. The Chambers Judge had held that the City did not challenge the Applicants’ right to pursue judicial review of the City’s action and therefore, the Court of Appeal declined to grant the City leave to raise the ground at this late stage.

The appeal was allowed, the resolutions of the City Council were set aside and the matter was remitted back to the City for a new appeal.

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