Administrative law – Decisions of administrative tribunals – Subdivision and Development Appeal Board – Appeals – Leave to appeal – Tribunal’s power to participate in leave application – Tribunal’s power to consider its own decisions – Judicial review – Jurisdiction – Parties – Standing
1447743 Alberta Ltd. v. Calgary (City),  A.J. No. 263, 2011 ABCA 84, Alberta Court of Appeal, March 16, 2011, P.W.L. Martin J.A.
The applicant, 1447743 Alberta Ltd., sought leave to appeal a decision of the respondent’s Subdivision and Development Appeal Board (the “Board”). The Board had overturned the City of Calgary’s development authority’s decision to issue a development permit to the Applicant for a bottle return depot. Before addressing the merits of the Applicant’s leave to appeal application, the Court of Appeal had to address a preliminary issue relating to the Board’s ability to participate in the leave application.
The parties agreed that the case of Northwestern Utilities Ltd. v. Edmonton,  1 S.C.R. 684, is the leading case regarding a tribunal’s participatory role before the court when its decision is the subject of attack. The Supreme Court of Canada held that the tribunal may not address the merits of its decision, but should limit its participation to providing an explanatory role regarding the record before the tribunal and to making representations relating to its jurisdiction. The Court of Appeal noted that the courts have adopted a more lenient attitude in allowing a tribunal to participate in appeal and judicial review proceedings since the Northwestern decision in 1979.
The Court of Appeal held that the permissible scope of a tribunal’s participation will largely depend upon the circumstances and context of each proceeding. The Court of Appeal reviewed three principle factors influencing the scope of permissible participation for the Board.
First, the nature of the proceeding is a relevant factor to take into account. In that regard, the Applicant here was merely seeking leave to appeal, which is the first step for an applicant seeking to overturn a decision of the Board. However, the Court of Appeal noted that there is a potentiality that the matter may eventually be referred back to the Board for issues to be reheard and this reinforces the need for the Board to preserve its integrity and impartiality.
Second, it was necessary to review the Board’s authority established by its enabling legislation. The Board is permitted to appear as a respondent on the leave application and, if leave is granted, on the appeal itself (with the right to be represented by counsel). However, the Court of Appeal held that the full standing accorded to the Board did not require or justify allowing the Board to address the merits of the issue by defending its decision. In other words, the legislation did not dictate a larger role for the Board but was one factor that suggested a greater role to be played by the Board.
Third, it is important that there is a fully adversarial setting and therefore it is relevant to consider whether there is an absence of any opposing view in the proceeding. In certain cases, the absence of an opposing view may permit a tribunal to advance more extensive submissions. The Board appeared to be the only party willing to oppose the leave application on its merits though there were other parties that may fill that void if the Board’s participation was limited. The Court of Appeal therefore held that there were limited concerns about the lack of an adversarial setting.
The Court of Appeal concluded that the Board was entitled to make submissions as to the scope of its jurisdiction and to explain the record. The Board was not permitted to seek to justify the correctness of its decision.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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