Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Planning and zoning – By-laws – Validity – Notice and consultation – Judicial review – Procedural requirements and fairness – Standard of review – Correctness
Airport Self Storage and R.V. Centre Ltd. v. Leduc (City),  A.J. No. 26, Alberta Court of Queen’s Bench, January 7, 2008, D.R.G. Thomas J.
The Applicant owned a parcel of land on which it operated a facility providing outdoor access storage space to a variety of tenants. A developer sought, and was granted, a development permit which allowed a competitive development to be built across the street from the Applicant’s land. The Applicant appealed the decision to issue this permit on the basis that the proposed use was neither a permitted nor a discretionary use under the zoning for that parcel of land. That appeal to the City’s Subdivision and Development Appeal Board was dismissed, and the Applicant was granted leave to appeal the decision to the Alberta Court of Appeal. While that appeal was pending, the City passed a new bylaw, and established a new land use category which was defined in such a way as to encompass the use proposed by the developer, which was the subject of the appeal.
Notice of the public hearing respecting the proposed bylaw was published in local newspapers, although no notice was given to the Applicant. When a second development permit was issued to the developer, the Applicant received written notice as an adjacent property owner. The Applicant appealed the decision to issue the second development permit on the basis that it had not received notice of the proposal to hold a public meeting and adopt the bylaw. That appeal was denied. The Applicant contends that had notice been provided to it, it would have made oral and written submissions to City Council in opposition to the bylaw.
The issue before the Court was whether the City breached a requirement of procedural fairness when it failed to provide personalized written notice to the Applicant of the public hearing in respect of the proposed bylaw, and whether this breach of procedural fairness rendered the bylaw invalid.
The Court held that an application for judicial review which raises an issue of procedural fairness is to be reviewed on the standard of correctness as measured by the factors set out in Baker v. Canada (Minister of Citizenship and Immigration),  S.C.J. No. 39. The Court concluded that given this was an obvious dispute between neighbours rather than some sort of neutral text amendment involving passage of the bylaw, it was appropriate to impose a higher duty of procedural fairness in this circumstance. Similarly, the nature of the Municipal Council decision on a zoning amendment was such that it was final and binding and there was no right of appeal. This elevated the degree of fairness required. The importance of the decision to the Applicant was demonstrated by the fact that the Applicant had initiated an expensive legal challenge to the Court of Appeal following its appeals to the City. This factor, and the legitimate expectations of the Applicant that it would expect to be consulted about land use regulations located immediately across the street from its parcel were such that a fairly high duty of procedural fairness were required. Finally, the Court noted that in circumstances where a decision maker appeared to be going out of its way to defeat the interests of one affected resident in favour of another, very little deference should be granted to that decision maker.
Given that there was a high duty of procedural fairness on the Council, and that the City knew or should have known that the Applicant had a legitimate interest in the changes in land use policies and bylaws, the circumstances demanded a more proactive role on the part of Council to reach out to the Applicant, notify it, and include it in the public discussion before passing the bylaw. As no such notice was given to the Applicant, there was a breach of procedural fairness that rendered the bylaw invalid.
In the end, the application for judicial review was granted and the bylaw was declared invalid.
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