Nor-Chris Holdings Inc. v. Sturgeon (County), 2013 ABQB 184

Court of Queen ’ s Bench of Alberta Citation: Nor-Chris Holdings Inc. v. Sturgeon (County), 2013 ABQB 184 Date: 20130322 Docket: 1203 06212 Registry: Edmonton Between: Nor-Chris Holdings Inc. Applicant - and - Sturgeon County Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is an application for judicial review of a resolution by Sturgeon County Council on February 28, 2012 (the "Resolution") whereby Sturgeon County: ...place(

d) a moratorium on re-zoning for the purposes of multi-lot residential subdivisions in the area of Cardiff which is in the Inter-Municipal Fringe IMF-A district around Morinville.

[ 2 ] The applicant Nor-Chris Holdings Inc. is a land developer and property owner and is directly affected by the Resolution.

Its principal, Norman Suvan, is an experienced developer, familiar with the subdivision and zoning process. [ 3 ] Nor-Chris seeks to have the Resolution set aside on the basis that Sturgeon County did not have any statutory authority to impose a development moratorium of indefinite duration in relation to the applicant's (and others') lands. [ 4 ] Alternatively, Nor-Chris argues that Sturgeon County Council did not exercise its discretion lawfully and for legitimate and valid planning purposes in passing the Resolution.

Background [ 5 ] The following background is not controversial, and is taken primarily from the Applicant's submission on this application. [ 6 ] Nor-Chris owns 134 acres located adjacent to the hamlet of Cardiff in Sturgeon County.

It purchased the lands in September, 2007 for the purposes of a staged country residential development. [ 7 ] Before proceeding with the purchase, Nor-Chris had two public consultations on its proposed development, and received sufficient support from the community and from municipal officials to decide to proceed with the purchase. [ 8 ] Nor-Chris's lands are designated ‘ inter-municipal fringe' and its proposed development of the lands requires an amendment to the existing Municipal Development Plan.

The current zoning is IMG-A-Intermunicipal Fringe -A, and Nor-Chris requires the zoning to be amended to HR Hamlet Residential. [ 9 ] After providing all assessments, investigations and reports required by municipal officials, Nor-Chris made an application to amend the Municipal Development Plan on October 6, 2009. As part of that process, Nor-Chris filed an application on May 10, 2010 for Council to adopt the Area Structure Plan which had been prepared by its consultants with i1nput from municipal officials.

The Municipal Development Plan contains directions as to the preparation of Area Structure Plans in conjunction with subdivision applications, and allows the municipality a large amount of latitude as to what an Area Structure Plan may be required to contain. [ 10 ] One of the County Councillors requested that Nor-Chris hold a further public open house meeting for the purpose of public review and obtaining input into the proposed Area Structure Plan. The meeting was held on March 22, 2011. Nor-Chris alleges that this councillor was surprisingly hostile to Mr.

Suvan at the meeting. [ 11 ] Issues arising at this meeting were subsequently dealt with by Nor-Chris, although in November, 2011, Nor-Chris was advised by municipal officials that a revised Traffic Impact Assessment was required because the Sturgeon County had been advised that the Province was constructing a new interchange at Highway 2 and Cardiff Road.

Nor-Chris complied, and a new Traffic Impact Assessment was provided in January, 2012. [ 12 ] A review of Nor-Chris's proposed by-law to amend the Municipal Development Plan and to adopt the Area Structure Plan was conducted at a meeting of Council's Committee of the Whole on January 24, 2012. Mr. Suvan presented their proposal to Council.

It was supported by County Administration, as well as 6 of the 7 Councillors who gave informal support to bringing the proposal to Council at a regular meeting so as to give it first reading. [ 13 ] It would appear that at that time, the contents of the proposed Area Structure Plan were in accordance with what Nor-Chris had been required to do.

[14] Before Nor-Chris's applications were brought to Council for first reading, some members of the Cardiff communitycirculated a petition requesting a moratorium on development within the Cardiff area. The petition was presented to Council at theFebruary 28, 2012 meeting. [15] At its regular Council meeting on February 14, 2012, a notice of motion was presented to be brought forward at Council'sFebruary 28 meeting.

The notice of motion stated: RE-ZONING FOR THE PURPOSE OF MULTI-LOT SUBDIVISIONS IN THE AREA OF CARDIFF That Sturgeon County place a moratorium on re-zoning for the purpose of multi-lot residential subdivisions in the area of Cardiff whichis in the Inter-Municipal Fringe IMF-A district around Morinville. This moratorium should affect all lands within 800 meters of CardiffEchoes, Cardiff Pittsburg and Cardiff Park.

Thirdly, this moratorium should stay in effect until such time that an Area Structure Plan forthis area is completed.. [16] The motion was passed on February 28, by a majority of four to three Councillors. [17] The effect of the Resolution is to place a freeze on subdivision of Nor-Chris's lands until an Area Structure Plan has beenapproved for the area surrounding Cardiff, instead of just Nor-Chris's lands themselves. [18] The Resolution also freezes subdivision of lands owned by other landowners in other directions from Cardiff.

Position of the Parties Nor-Chris [19] Nor-Chris argues that the exercise of a municipality's statutory powers is reviewable on a correctness standard, citing CatalystPaper Corp. v. North Cowichan (District), 2012 SCC 2 and United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City),2004 SCC 19 , [2004] 1 S.C.R. 485. [20] Nor-Chris argues that there is no express statutory authority under the Municipal Government Act, R.S.A. 2000, c.

M-26 (the"MGA") for a municipal council to pass a bylaw or resolution imposing a moratorium on development. [21] Because at common law a landowner is free to subdivide and develop his lands without interference from government, rulesof construction or

interpretation of statutes purporting to limit or alter those rights are to be given stricter meaning, following Nanaimo(City) v. Rascal Trucking Ltd., 2000 SCC 13 , [2000] 1 S.C.R. 342 (and earlier cases to the same effect). [22] While a freeze or moratorium on development is acknowledged to be intra vires if made for or incidental to a valid andlegitimate planning purpose, following Hartel Holdings Co. Ltd. v.

Calgary (City), 1982 ABCA 10, reversed on other grounds (SCC), [1984] 1 S.C.R. 337, Nor-Chris argues that the resolution or bylaw here was not incidental to any valid planningpurpose. [23] In the absence of a valid planning purpose, Nor-Chris submits that a moratorium or freeze on development is ultra vires, asthere is no express statutory authority for the same.

[24] Nor-Chris also relies on Catalyst Paper for the principle that "a legislature does not intend the power it delegates to beexercised unreasonably, or in some cases, incorrectly." (At para. 12) [25] It acknowledges, however, that s. 539 of the MGA shields municipal councils' bylaws from challenges on the basis ofunreasonableness: 539 No bylaw or resolution may be challenged on the ground that it is unreasonable. [26] However, Nor-Chris argues that notwithstanding s. 539, a bylaw or resolution which is unequal in its operation, is manifestlyunjust, discloses bad faith, or involves oppressive or gratuitous interference with the rights of landowners, is tainted by errors which goesto a want or excess of jurisdiction, again referring to Catalyst Paper and its approval of Kruse v.

Johnson, [1898] 2 Q.B. 91 (Div.

Ct.). [27] Nor-Chris also refers to a paper by New York's Governor Cuomo, Land Use Moratoria, Revised 2010,http://www.dos.ny.gov which concludes that there are five key elements for a ‘legally defensible' moratorium: The land use moratorium should: 1) have a reasonable time frame as measure by the action to be accomplished during the term; 2) have a valid public purpose justifying the moratoria or other interim enactment; 3) address a situation where the burden imposed by a moratorium is being shared substantially by the public at large; 4) strictly adhere to the procedure for adoption laid down by the enabling acts; and 5) have a time certain when the moratorium will expire [28] Nor-Chris objects to the imposition of a requirement that an Area Structure Plan be prepared for a large area surroundingCardiff.

It points out that it, at the direction of County Administration, prepared an Area Structure Plan for its 134 acres. That Plan wassatisfactory to County Administration, although Nor-Chris acknowledges that its approval did not fetter the discretion of CountyCouncil. [29] Nor-Chris argues that Council ought to have justified the moratorium and the imposition of a new Area Structure Planrequirement in the context of valid public purposes, which it did not do. [30] It also argues that the moratorium fails to provide a reasonable time frame and a time certain when it will expire, and it has noend date.

Further, the County has taken no steps to proceed with an Area Structure Plan in accordance with the Resolution. [31] Nor-Chris argues that the Resolution was passed in breach of the County's duty of fairness, in breach of natural justice, andunder an apprehension of discrimination or bias. These amount to a want or excess of jurisdiction, and make the Resolution void, citingWood v. Wetaskiwin (County No. 10), 2001 ABQB 681 , [2001] A.J. No. 775 (Q.B.).

[ 32 ] Nor-Chris submits that it had a reasonable expectation that its proposed Area Structure Plan and the amendment to the Municipal Development Plan would proceed to a public hearing after receiving first reading. Instead, the notice of motion and the passing of the Resolution in the face of County Administration approval ‘ raises questions as to motive and fairness.' [ 33 ] It argues that the procedure used by Council was ‘ so dramatically devoid of the appearance of fairness that the administration of justice is brought into disrepute ’ , quoting from Wood v.

Wetaskiwin at para. 68. [ 34 ] Nor-Chris relies on the doctrine of reasonable expectations, citing Lewis v. Pincher Creek (Municipal District No. 9), [2005] A.J. No. 339 (C.A..) and Action Council of Reasonable Neighbours v. Edmonton (City), [2003] A.J. No 1340 (Q.B.) . It argues that there should have been a public hearing on the merits of its applications. [ 35 ] Alternatively, it argues that more notice of the February 28 Council meeting and the notice of motion regarding the moratorium should have been given to Nor-Chris so that it could retain counsel and consultants to oppose the Resolution.

County of Sturgeon [ 36 ] Sturgeon's response is that Council, at an early stage, has the jurisdiction to require that an Area Structure Plan be enlarged ‘ so as to consider the wider context of development in the overall area involved'. [ 37 ] As such, Council here did not act improperly and the Resolution is valid. [ 38 ] Sturgeon argues that Council has broad authority over generally defined matters, and that the MGA is to be given a broad and purposive

interpretation, also citing United Taxi Drivers Fellowship of Southern Alberta v. Calgary (City) . [ 39 ] Sturgeon notes that the moratorium or freeze imposed is only a freeze on subdivision, and does not otherwise freeze development within the affected area. [ 40 ] Sturgeon says that Nor-Chris's proposed development requires an amendment to the existing Municipal Development Plan, an Area Structure Plan and then re-zoning of the lands. It argues that the Resolution dealt with the timing of the planning and ultimate re-zoning of a significant area.

A decision of that nature is at the policy end of development decisions. A wide discretion is given to municipal councils in the area of policy decisions. [ 41 ] Sturgeon argues that it is within Council's authority to identify the scope of an Area Structure Plan. [ 42 ] As for the standard of review to be applied when a court judicially reviews a resolution or bylaw of a municipal council, Sturgeon relies on Nanaimo (City) v. Rascal Trucking Ltd. , 2000 SCC 13 and Northland Material Handling Inc. v. Parkland (County ), 2012 ABQB 407 .

It argues that the appropriate standard here is reasonableness, with considerable deference to Council. [ 43 ] In Northland Material Handling Inc. , Veit J. held that judicial review of a municipal council's actions while acting within its authority is based on the reasonableness standard, with strong deference. [ 44 ] She considered the impact of Dunsmuir v.

New Brunswick , 2008 SCC 9 , on previous cases dealing with the standard of review and noted that while a municipal council is not a quasi-judicial tribunal, the court's task on review of resolutions and bylaws is to ensure "the legality, the reasonableness and the fairness of the administrative process and its outcomes" (at para. 34). [ 45 ] She distinguished between the

interpretation by a decision-making body of its own statute or one closely connected with its function, in which case deference will be given to the

interpretation. Where the

interpretation is one which requires the determination of

jurisdictional lines between two or more competing specialized tribunals, the standard of review is correctness (at para. 38). For the purposes of that case, she accepted for the purposes of the hearing that the standard was correctness, because of the interplay between the development regulation function of the municipal council and the regulatory functions of other statutory bodies. [ 46 ] Justice Veit considered the standard applicable to the determination of whether council acted for an improper purpose.

At para. 40, she noted that the standard of correctness applies to "intentionally or recklessly illegal acts or clearly irrelevant council acts" while the reasonableness standard will be applied to "actions that come within a council's legislative authority even though there may be a variety of reasons to explain that council's actual decision." [ 47 ] In the absence of intentional or reckless illegality or of any act outside council's legislative mandate, she held that the challenge to council's decision based on allegations of bad faith, improper purpose and improper considerations were to be reviewed on the reasonableness standard (at para. 41). [ 48 ] She also noted at para. 42 that the MGA does not require council to give reasons for its administrative processes. [ 49 ] When considering whether council acted for an improper purpose, Veit J. noted at para. 68 that unless "an illegal or improper purpose is the only possible explanation for the decision of a municipal council, the council's decision must be assessed on the basis of reasonableness. [ 50 ] She quoted from Catalyst Paper Corp. v.

North Cowichan (District ) , 2012 SCC 2 , and Rascal Trucking Ltd. at para. 69 : It is thus clear that courts reviewing bylaws for reasonableness must approach the task against the backdrop of the wide variety of factors that elected municipal councillors may legitimately consider in enacting bylaws.

The applicable test is this: only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside. [ 51 ] If the decision is within the range of decisions that council could reasonably make, it should not be set aside (at para. 70). [ 52 ] In the context of these comments, Sturgeon argues that the Resolution was not unfair, as it could have voted Nor-Chris's proposal down on the next reading on the ground that it did not favour piecemeal subdivisions in the Cardiff area, requiring a more comprehensive Area Structure Plan. [ 53 ] Sturgeon argues that its actions were fairer for the Applicant and others affected by the Resolution, as more cost would have been expended had Council waited until later in the process to require an overall Area Structure Plan. [ 54 ] Sturgeon also argues a number of points: 1.

That the impugned Resolution is at the policy end of the spectrum and Council should thus be given a very wide discretion; 2. The standard of review to be employed is reasonableness, with considerable deference; 3. Nor-Chris's reasonable expectations were impacted by more recent developments, including the petition from Cardiff residents and the Province's plans to make changes to the intersection of the roadway servicing Cardiff from Highway 2, which could affect traffic patterns for the area;

4. Council is entitled to make policy decisions contrary to positions taken by administration; and 5. As for procedural fairness, Nor-Chris had notice of the February 28, 2012 meeting and attended by its president and its planning officer. Nor-Chris had the opportunity to make submissions to Council before the Resolution was voted on. Issues [ 55 ] There are in substance two issues to be determined on this application. The first is whether a municipal council has the statutory authority to imposed a freeze on subdivision in a particular area in the municipality, by ordinary resolution of council.

This ground encompasses the specific jurisdiction of the municipality to enact the resolution it did. [ 56 ] The second issue, which needs to be determined only if council had the basic jurisdiction to pass a resolution of this nature, is whether council acted improperly, such as with bias, improper motive, irrelevant considerations or otherwise. Analysis Standard of Review [ 57 ] Sturgeon relies on Veit J. ’ s analysis of the standard of review in Northland Material Handling Inc. v.

Parkland (County) , where she stated at para. 33: The common law has a long history of wide deference to elected municipal councils in recognition of their role in a democracy. This deference recognizes, in part, the different roles attributed in a democracy to elected decision makers and unelected judges. This deference, wide and strong as it is, nonetheless applies only to the actions of a council taken within authority. The role of courts on judicial review of decisions of municipal councils is, first, to ensure that the council acted legally, i.e. within the authority granted to it.

On issues of legality, the standard of review is correctness. The second role of a court on judicial review, if it has concluded that a municipal council is acting legally, is then to review council decisions according to the standard of reasonableness, which is where the strong deference comes into play: Rascal Trucking Ltd. [ 58 ] In Catalyst Paper Corp. v. North Cowitchan (District) , the parties had agreed that the standard of review was reasonableness. They did not agree as to what the standard of reasonableness required.

Catalyst took the position the “ reasonableness ” meant whether the bylaw came within a range of reasonable outcomes in the context of municipal taxation bylaws.

North Cowichan argued that reasonableness had to take into account a broader array of social, economic and demographic factors concerning the entire community. [ 59 ] At para. 18, the Supreme Court stated that Dunsmuir recognized that “ reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors. ” [ 60 ] It then noted that (in para. 20) that “ the decided cases support the view of the trial judge that, historically, courts have refused to overturn municipal bylaws unless they were found to be “ aberrant ” , “ overwhelming ” , or if “ no reasonable body could have adopted them ” . [ 61 ] Dunsmuir is characterized in para. 23 as having described reasonableness as a “ flexible deferential standard ” to be exercised in a contextual manner:

[23] This argument misreads Dunsmuir . As discussed above, Dunsmuir described reasonableness as a flexible deferential standard that varies with the context and the nature of the impugned administrative act. In doing so, Dunsmuir expressly stated that the approaches to review developed in particular contexts in previous cases continue to be relevant ( Dunsmuir , at paras. 54 and 57 ). Here the context is the adoption of municipal bylaws. The cases dealing with review of such bylaws relied on by the trial judge and discussed above continue to be relevant and applicable.

To put it succinctly, they point the way to what is reasonable in the particular context of bylaws passed by democratically elected municipal councils. [24] It is thus clear that courts reviewing bylaws for reasonableness must approach the task against the backdrop of the wide variety of factors that elected municipal councillors may legitimately consider in enacting bylaws. The applicable test is this: only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside.

The fact that wide deference is owed to municipal councils does not mean that they have carte blanche . [25] Reasonableness limits municipal councils in the sense that the substance of their bylaws must conform to the rationale of the statutory regime set up by the legislature. The range of reasonable outcomes is thus circumscribed by the purview of the legislative scheme that empowers a municipality to pass a bylaw. [ 62 ] Rascal Trucking , as noted by Veit J. in Northland Material Handling , applied the patent unreasonableness standard of review to decisions within the municipality ’ s jurisdiction.

In Rascal Trucking , the Supreme Court stated at para. 35: 35 In light of the conclusion that Nanaimo acted within its jurisdiction in passing the resolutions at issue, it is necessary to consider the standard upon which the courts may review those intra vires municipal decisions. Municipal councillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipal councils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra vires decisions.

The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferential standard. [ 63 ] I am troubled that s. 539 of the MGA was not dealt with in Northland Material Handling . That provision, which states: No bylaw or resolution may be challenged on the ground that it is unreasonable [ 64 ] It is not present in the legislation considered in either Rascal Trucking or Catalyst Paper .

That provision has been in the MGA since 1994. When that provision was added to the MGA , there were three standards of review: correctness, reasonableness and patent unreasonableness. The standards of review did not change until Dunsmuir in 2008. [ 65 ] I assume that the provision was added to the MGA to limit judicial review to the correctness and patent unreasonableness standards, and to exclude the lower standard of reasonableness. [ 66 ] I do not see that Dunsmuir has changed that.

While “ patent unreasonableness ” was abolished as an ongoing standard of review in administrative law, Dunsmuir did not have the effect of abolishing judicial review of municipal resolutions and bylaws on any standard other than correctness and reasonableness.

Statutory provisions relating to review and standards of review must still be considered. [ 67 ] The legislature obviously wanted something higher than reasonableness per se , as a basis for review, and that is in my view satisfied by perpetuating, for the purposes of a review under s. 536 of the MGA , the concept of patent unreasonableness. [ 68 ] Since the ‘ reasonableness ’ standard is ousted by s. 539 , and Dunsmuir describes two standards, correctness and reasonableness, it may be incorrect to say that there are many separate standards within reasonableness such as reasonableness with no defence, reasonableness with defence and reasonableness with great defence.

While that may be the practical effect of Dunsmuir as it

has been interpreted, those characterizations may not be technically correct.

I think it is safest to characterize the standard where reasonableness has been ousted by statute as ‘ patent unreasonableness ’ . [ 69 ] That standard, for the purposes of the review in Alberta of a municipal bylaw or resolution, is captured by para. 20 of Catalyst Paper : [20] The decided cases support the view of the trial judge that, historically, courts have refused to overturn municipal bylaws unless they were found to be “ aberrant ” , “ overwhelming ” , or if “ no reasonable body ” could have adopted them... [ 70 ] The proviso to that is having regard to reviews under s. 536 of the MGA , determining whether any “ reasonable body ” might have adopted the bylaw or resolution must be approached giving a high level of deference to Council. [ 71 ] I need not discuss or attempt to resolve how (if at all) “ patent unreasonableness ” differs from “ reasonableness with great deference ” . [ 72 ] I agree with Veit J. in Northland Trucking that decisions concerning legality of bylaws and resolutions are to be interpreted on the correctness standard.

I find myself in disagreement with her that other reviews are to be based on a reasonableness with deference standard. With respect, I do not see that that

interpretation accords with s. 539 of the MGA , and I would therefore hold that other reviews are to be based on something higher than the reasonableness standard, thus perpetuating for at least this purpose the concept of patent unreasonableness. [ 73 ] This is, I believe, consistent with my decision in Lloyd v. Alberta (Transportation Safety Board) , 2012 ABQB 443 , in which I discussed situations in which the doctrine of patent unreasonableness may live on after Dunsmuir . Jurisdiction [ 74 ] The jurisdictional issues, to be determined on the correctness standard, are twofold.

Can council enact a moratorium on this type of development, and if so, did council correctly exercise its discretion and find a valid or legitimate planning purpose to do so? [ 75 ] One can parse over the wording of the Resolution itself, but for the purposes of this application, it can be described as doing two things: 1. Requiring that an Area Structure Plan be prepared for the area described in the Resolution, and 2.

Postponing any applications for subdivision in the area until an Area Structure Plan has been adopted. [ 76 ] While the Resolution uses the word "moratorium" on re-zoning, the only way a re-zoning can take place is for there to be an application to amend the Municipal Development Plan or Land Use Bylaw (or both). [ 77 ] I am prepared to treat the Resolution as if it said that "no applications to amend the Municipal Development Plan or the Land Use Bylaw to permit subdivision in the area will be brought to Council until an Area Structure Plan for the described area has been adopted." [ 78 ] Other

interpretations are possible, but I think a purposive

interpretation is appropriate.

[ 79 ] It is certainly within Council's jurisdiction to require preparation and adoption of an Area Structure Plan for any area within the municipality. [ 80 ]

Section 633 of the MGA deals with Area Structure Plans: 633

(1) For the purpose of providing a framework for subsequent subdivision and development of an area of land, a council may by bylaw adopt an area structure plan.

(2) An area structure plan (

a) must describe (

i) the sequence of development proposed for the area, (ii) the land uses proposed for the area, either generally or with respect to specific parts of the area, (iii) the density of population proposed for the area either generally or with respect to specific parts of the area, and (iv) the general location of major transportation routes and public utilities, and (

b) may contain any other matters the council considers necessary. [ 81 ] The subject matter of the Resolution, the development of an Area Structure Plan (which must satisfy the requirements of subsection 2(a), is part of what a municipal council does in the ordinary course of fulfilling its responsibilities to its electors.

It does not appear to be at all inappropriate for Council to give public direction as to what it may require before it considers an Area Structure Plan for a given area, in advance of applications being made. [ 82 ] Additionally, the timing of bringing matters before Council is an administrative matter well within Council's jurisdiction. Council must surely have a jurisdiction to determine what goes on its agenda, and how and when that is to happen. [ 83 ] The subject matter of the Resolution is rationally connected with each of these matters and thus are clearly within Council's jurisdiction.

I do not think it can be said that Council was acting outside of its jurisdiction. [ 84 ] While Nor-Chris suggests that Council has imposed a moratorium on development within the area affected by the Resolution (and more importantly its lands within that area), that is not accurate. Council did not restrict development any more than it is already restricted by the Municipal Development Plan or the Land Use Bylaw; it only restricted subdivision of land within the area.

No moratorium or freeze was placed on applications to re-zone for developments other than residential subdivisions. [ 85 ] The Resolution is certainly rationally connected with the planning purposes described in s. 633 of the MGA . The evidence demonstrates that density, transportation and the sequence of development were raised in the petition presented to the February 28

Council meeting, and those issues were squarely before Council. [ 86 ] The absence of direct power under the MGA to order a "freeze" or "moratorium" on development, or certain types of development such as subdivision, is not fatal to Council being able to do so. [ 87 ] Indeed, Nor-Chris in its brief of argument acknowledges as much, by stating "a freeze or moratorium on development incidental to a change in land use designation may be intra vires if made for valid and legitimate planning purposes". This acknowledgment appropriately follows the decisions in Hartel Holdings Co. Ltd. v.

Calgary (City) in the Court of Appeal and the Supreme Court of Canada. [ 88 ] The Resolution requires an Area Structure Plan. The area involved for the Area Structure Plan is in the area adjacent to Nor-Chris's lands or adjacent to the hamlet of Cardiff. The description of Area Structure Plans in the MGA , in context of subdivisions of land, makes it clear that requiring the preparation of such a plan for such an area is made "for valid and legitimate planning purposes". [ 89 ] Nor-Chris refers to Governor Cuomo's paper and his conclusion that a land use moratorium: 1.

Have a reasonable time frame as measured by the action to be accomplished during the term; 2. Have a valid public purpose 3. Address a situation where the burden imposed is being shared substantially by the public at large 4. Must strictly adhere to procedures for its adoption and 5. Have a time certain for expiry [ 90 ] Those appear to be sound considerations. However, they are better described as ‘ best practices', or ‘ guidelines' or ‘ recommendations'.

They do not have the force of law, at least in Alberta. [ 91 ] Failure to follow these guidelines, or any of them, does not render the Resolution invalid as they are not requirements imposed by the MGA or any other lawful authority. Consideration of these factors is more appropriately given in the context of the reasonable expectations of persons dealing with municipal bodies, or perhaps in considering the effects of resolutions or bylaws. [ 92 ] Thus no jurisdictional opposition to the Resolution has been made out on the correctness standard, or otherwise.

Council acted within its jurisdiction, and did not fail to follow any statutory requirements imposed on it. This ground of appeal fails. Impropriety [ 93 ] That leaves the second branch of Nor-Chris's argument, that the Resolution is invalid because it is tainted by impropriety. [ 94 ] Nor-Chris ’ impropriety argument really boils down to the duty of fairness generally and one of its subsets, the doctrine of reasonable expectations.

[ 95 ] With respect to the validity of the Resolution itself and the Court's ability to review it under the provisions of the MGA , the relevant sections provide: 536(1) A person may apply to the Court of Queen's Bench for (

a) a declaration that a bylaw or resolution is invalid, or (

b) an order requiring a council to amend or repeal a bylaw as a result of a vote by the electors on the amendment or repeal.

(2) A judge may require an applicant to provide security for costs in an amount and manner established by the judge. Procedure 537 A person who wishes to have a bylaw or resolution declared invalid on the basis that (

a) the proceedings prior to the passing of the bylaw or resolution, or (

b) the manner of passing the bylaw or resolution does not comply with this or any other enactment must make an application within 60 days after the bylaw or resolution is passed. [ 96 ] Nor-Chris' objections to the Resolution are two-fold: 1. That Council should have required a public hearing before passing the Resolution; and 2.

The Resolution is "unequal in its operation, manifestly unjust, discloses bad faith or involves oppressive or gratuitous interference with the rights of land owners". [ 97 ] For the former point, the provisions of the MGA are crucial; for the latter, Nor-Chris relies on Catalyst Paper and Kruse v. Johnson . Duty of Fairness [ 98 ] Nor-Chris hints at bias and bad faith by raising unexplained anger expressed by the non-supporting councillor, but its application does not go so far as to allege that the Resolution is tainted by bad faith or bias.

No conflict of interest has been raised, and Nor-Chris did not raise any issue of bad faith or bias at the February 28 council meeting (which was long after the public meeting where the Councillor appeared angry), or seek to have the non-supportive Councillor recuse himself from the proceedings. No ulterior motives (such as keeping the cost of land which might be expropriated in the future down) have been suggested. [ 99 ] Cross-examination of Mr. Suvan in connection with this application discloses that he is experienced and knowledgeable with

respect to subdivision matters. He learned of the petition as it was being circulated and before it was presented to Council, and made apresentation to the Mayor and Council regarding inaccuracies in it. While he was not formally notified of the notice of motion, helearned of it and came to the February 28 council meeting knowledgeable about what was on the agenda, what the issues were, and hewas prepared to deal with them. [100] He was afforded the opportunity to speak to Council on the Resolution. Mr.

Suvan did not challenge the Councillor leadingthe charge on the resolution for bias, bad faith or ulterior motives, and no adjournment was sought for further time to prepare, or toengage Council. [101] There are no parallels here to the situations in Wood v. Wetaskiwin (where procedural irregularities and bias were alleged butthe application was denied), Lewis v. Pincher Creek (where council's

interpretation of the cause of a fire was found to be patentlyunreasonable) or Action Council of Reasonable Neighbours v. Edmonton (City) (where the applicant's complaint that they had not beenallowed to speak on third hearing of the motion was dismissed). [102] Matters going to absence of notice, insufficiency of notice, irrelevant considerations, bias, bad faith, ulterior motives, inabilityto make representations or respond and the like have not been made out on the facts here. [103] Nor-Chris learned of the notice of motion and attended the February 28 Council meeting and voiced its objection.

Noadjournment was requested. [104] As for the failure to hold an public hearing on the Resolution, no public hearing is required. No amendment to the MunicipalDevelopment Plan or the Land Use Bylaw was effected. The Resolution changed nothing. It is akin to a direction to administration andthe public as to what is required for prospective applications. Reasonable Expectations [105] Davidson v. Calgary (City) points out that "reasonable expectations do not create substantive rights" (at para. 18) but are acomponent of procedural fairness, quoting from Moreau-Berube v.

New Brunswick (Judicial Council), [2002] 1 S.C.R. 449: 78 I am not persuaded by any of these arguments. The doctrine of reasonable expectations does not create substantive rights, and does notfetter the discretion of a statutory decision-maker. Rather, it operates as a component of procedural fairness, and finds application when aparty affected by an administrative decision can establish a legitimate expectation that a certain procedure would be followed: Referencere Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, at p. 557; Baker, supra, at para. 26.

The doctrine can giverise to a right to make representations, a right to be consulted or perhaps, if circumstances require, more extensive procedural rights. Butit does not otherwise fetter the discretion of a statutory decision-maker in order to mandate any particular result: see D. Shapiro,Legitimate Expectation and its Application to Canadian Immigration Law (1992), 8 J. L. & Social Policy 282, at p. 297. [106] It is understandable that Nor-Chris is unhappy about the manner in which it has been dealt by Sturgeon.

It worked withCounty Administration for over 3 years to satisfy Administration's issues with respect to the proposed subdivision and to put itself in aposition where it could present an application to amend the Municipal Development Plan and approve an Area Structure Plan supportedby County Administration. It had engaged consultants, provided reports and studies, responded to concerns, prepared supplementalreports and more studies, and held public open houses. [107] Nevertheless, the final decision rested with Council.

Nor-Chris must have been quite encouraged, however, as five weeksbefore the impugned Resolution, Council by a 6-1 margin supported the giving of first reading to the proposed by-law amending theMunicipal Development Plan and approving the Area Structure Plan. This support was informal and not binding. [108] Nor-Chris was understandably expecting the next step to be first reading of the proposed bylaw and resolution, and then apublic hearing.

[109] Instead, public opposition began to grow behind the scenes, with a petition opposing subdivision in the area being circulatedin Cardiff. Nor-Chris learned of the petition and wrote to the Mayor and Council about it. The non-supportive Councillor some threeweeks later put forward the notice of motion for the impugned Resolution. [110] Adherence to procedural requirements as set out in the relevant legislation, and to procedural fairness, are discussed in Woodv. Wetaskiwin and Baker v. Canada. In Wood v. Wetaskiwin, the Court of Appeal summarized the duty of procedural fairness describedin Baker v.

Canada at para. 12: 12 The nature of the duty of procedural fairness owed to affected individuals by an administrative body varies depending on thecircumstances that come into play. In Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2S.C.R. 817, 174 D.L.R. (4th) 193, the Supreme Court outlined factors courts must consider when assessing the extent of this duty. Theseinclude: (

i) The nature of the decision being made and the process followed in making it. (ii) The nature of the statutory scheme pursuant to which the tribunal operates. (iii) The importance of the decision to the individuals affected. (iv) The legitimate expectations of those challenging the decision. (

v) The choice of procedure made by the agency. [111] Nor-Chris can certainly demonstrate that this is an important matter to it (factor iii) and that its legitimate expectations werethat their applications would be given first reading and taken to a public hearing (factor iv). Beyond that, however, they could not haveany reasonable expectation that they would be successful. Success might or might not follow the results of the public hearing, andfurther discussions and debate at Council. Notably, however, in this area, Nor-Chris's applications have never been dealt with byCouncil.

They remain outstanding. [112] Council can be said to have side-stepped the usual process of dealing with an application to amend the MunicipalDevelopment Plan, which would have been to give the proposed bylaws first reading and

schedule a public hearing (factor i), although itcan also be said that Council followed its usual process in dealing with a notice of motion from a Councillor. [113] The nature of the statutory scheme (factor ii) is less clear. Council was not directly dealing with Nor-Chris's applicationswhen it passed the Resolution.

And that is, in my view, the most important consideration when considering Nor-Chris's reasonableexpectations and whether they were violated by the passage of the Resolution or the manner in which the Resolution was passed. [114] The Resolution does not deal with Nor-Chris's applications to amend the Municipal Development Plan or for the passage of itsproposed Area Structure Plan. The Resolution deals with a separate matter, brought forward not by Nor-Chris but by one of thecouncillors.

There is no doubt that the Resolution impacts on Nor-Chris's applications, but does not do so directly. [115] A municipal councillor has the right to give a notice of motion and to have his or her motion dealt with by council. There isnothing irregular about the bringing of the motion itself. Further, it was not a motion to approve an Area Structure Plan, which wouldhave required a bylaw and not a simple resolution of council.

[ 116 ] This was a motion to require the preparation of an Area Structure Plan, which is a valid planning consideration for Council pursuant to s. 633 of the MGA . Council is not required to adopt an Area Structure Plan. That is within its discretion. But Council can decide that it is necessary to have an Area Structure Plan rather than deal with future subdivision and development in a piecemeal basis.

That seems to me to be a valid planning consideration, and one which is of general application (at least to those persons affected by it). [ 117 ] It is also a valid planning consideration to provide that subdivision or even development applications not be brought forward to Council until after an Area Structure Plan has been adopted. [ 118 ] Ultimately, I do not think it can be said that the Resolution itself is irregular or failed to follow required process for a resolution of its kind. [ 119 ] From this analysis, applying the Baker tests, factors (

i) and (ii) favour Sturgeon, while factors (iii) and (iv) favour Nor-Chris, although that is essentially on an apples to oranges comparison because the Resolution itself is not responsive to Nor-Chris's applications. [ 120 ] The final factor is the choice of procedure. Council chose to avoid dealing with Nor-Chris's applications on their merits. Council has never scheduled Nor-Chris's applications to be heard.

Instead, Council entertained and passed a resolution which arguably makes Nor-Chris's applications less likely to succeed, but that is still something that needs to be determined. [ 121 ] Sturgeon argues that their choice of doing so was reasonable, as it avoided an unnecessary and potentially costly public hearing and waste of resources (including Nor-Chris's). Sturgeon describes the result of the Resolution as causing a "temporary delay" to Nor-Chris. I do not see how Sturgeon can suggest that the Resolution no longer requires it to deal with Nor-Chris's applications.

If that is the case, or that is the position, it seems to me that would be an end run around Nor-Chris's rights to have its applications properly considered by Council, at a Council meeting that it was given proper notice of, instead of hearing about a notice of motion and attending a council meeting where a petition is presented to Council for the first time. [ 122 ] Ultimately, it is premature for Sturgeon to say that the Resolution has avoided a waste of resources.

It seems to me that Nor-Chris is entitled to have its matter dealt with in the ordinary course. [ 123 ] Nor-Chris's main complaint is that it was denied a public hearing in regard to the Resolution. Since the Resolution which was passed does not directly affect Nor-Chris's applications, no public hearing in relation to the Resolution was required. [ 124 ] Ultimately, the Resolution was regularly passed, following Council's ordinary processes.

I do not see a valid basis on which to set it aside. [ 125 ] Nor-Chris has failed to convince me that the Resolution itself is tainted by procedural unfairness including any denial of Nor-Chris's reasonable expectations. [ 126 ] The situation would be different, however, if the Resolution is treated by Sturgeon as having any direct effect on Nor-Chris's outstanding application to amend the Municipal Development Plan and to approve its proposed Area Structure Plan. [ 127 ] I do not believe it is in the materials before me, but from discussions during the hearing, my understanding is that no one has taken any steps to prepare an Area Structure Plan in accordance with the impugned Resolution., namely for the area described in the Resolution. [ 128 ] It is certainly arguable on the evidence on the application that Sturgeon has so far denied Nor-Chris procedural fairness in dealing with Nor-Chris's applications.

Nor-Chris has two outstanding applications: one to amend the Municipal Development Plan and the other to approve an Area Structure Plan. Council would appear to have failed to follow its usual processes in regard to these applications, and has not likely yet met Nor-Chris's reasonable expectations as to how its applications would be dealt with.

[ 129 ] In Prof. Laux's Planning Law and Practice in Alberta , 3rd Edition (Edmonton, Juriliber, updated to January 2010), he deals with the duty to process an application at page 7-3: Questions have arisen as to what rights an applicant has to see his application for an amendment to a land use bylaw through to a conclusion once a formal application has been submitted. Many bylaws provide for in-house review of applications by the development authority or the municipality ’ s planning department before the application formally reaches a counsel ’ s agenda.

An applicant is the master of his own application and has the right to withdraw it should be receive any adverse response from this process. On the other hand, he should also have the right to see the application formally dealt with by council through the public hearing process provided for in the Act. A procedure has evolved in some municipalities whereby an application is informally brought before council as a regular agenda item and council may simple decide, without ever hearing from the application, that the application has no merit and strike it form its agenda.

This procedure was canvassed by the Court of Appeal in one unreported decision and was found to be inadequate. It was held that s. 139 of the Planning Act obligated the council to give first reading to an ending by law responsive to the application, and then to hold the public hearing prescribed by that section. [ 130 ] One might ask what would the point be of giving first reading to Nor-Chris's proposed bylaws in the face of the Resolution? One of Nor-Chris's applications was for Council to adopt an Area Structure Plan. Presumably, Council has to deal with an Area Structure Plan on its merits.

The impugned Resolution cannot have the effect of rejecting Nor-Chris's proposed Area Structure Plan because it did not deal with the entire area described in the Resolution, because Nor-Chris's proposed Area Structure Plan was not before Council. [ 131 ] Secondly, Council's Resolution is not something which is written in stone, or which can only be varied or even reversed by bylaw or other special procedure. It can be varied or reversed by the same process employed to pass it in the first place, or following (for example) a public hearing on a proposed bylaw.

There is nothing to say that a public hearing on Nor-Chris's proposed bylaws might not cause Council to change its mind on the need for the scope of Area Structure Plan directed by the Resolution. [ 132 ] The Resolution might legitimately prevent any further applications to amend the Municipal Development Plan until an Area Structure Plan has been adopted for the area. But that does not deal with an application that was already in the works before the Resolution was passed or even contemplated..

Sturgeon owes Nor-Chris procedural fairness on its outstanding applications. [ 133 ] Further, it is questionable whether Council can pass a resolution such as the impugned one and then sit back and do nothing. By freezing subdivisions in a defined area pending the approval of an Area Structure Plan, there is certainly support from Cuomo's materials that Sturgeon may have obliged itself to prepare an Area Structure Plan itself rather than wait for someone in the private sector to do so. [ 134 ]

Section 636 of the MGA deals with the preparation of statutory plans such as Area Structure Plans: 636(1) While preparing a statutory plan a municipality must (

a) provide a means for any person who may be affected by it to make suggestions and representations, (

b) notify the public of the plan preparation process and of the means to make suggestions and representations referred to in clause (a), (

c) notify the school boards with jurisdiction in the area to which the plan preparation applies and provide opportunities to those authorities to make suggestions and representations, (

d) in the case of a municipal development plan, notify adjacent municipalities of the plan preparation and provide opportunities to those municipalities to make suggestions and representations, and

(

e) in the case of an area structure plan, where the land that is the subject of the plan is adjacent to another municipality, notify that municipality of the plan preparation and provide opportunities to that municipality to make suggestions and representations. (2) Subsection (1) does not apply to amendments to statutory plans. [ 135 ] It was suggested in argument that responsibility for preparation of an Area Structure Plan falls on the developer when it is either required by the Administration in their review of an application, or as a condition imposed by Council in relation to an application. [ 136 ] But here, the Area Structure Plan has not been required in the context of a specific application, as the application has never been dealt with and the Resolution is of general application.

It is questionable whether an Area Structure Plan could reasonably be prepared by a developer who does not own all of the lands in the area to be covered by the Plan. [ 137 ] It may not be reasonable, or procedurally fair, for Sturgeon to have passed the Resolution it did, and then do nothing towards preparation of an Area Structure Plan for the area it has affected. I observe that this runs afoul of the principles set out in Cuomo's paper, namely those in relation to time frames and having the burden of the moratorium shared by the public at large. Nevertheless, this issue is not before me.

Conclusion [ 138 ] The Resolution was within the jurisdiction of Council. It is not tainted by procedural unfairness, and the passage of the Resolution itself did not violate Nor-Chris's reasonable expectations. There is no basis under

section 536 of the MGA to set it aside. [ 139 ] Applying a standard of review of patent unreasonableness or reasonableness with great deference does not permit me to set aside Council's decision. [ 140 ] Nor-Chris' application to set aside the Resolution is dismissed. [ 141 ] Council has yet to deal with Nor-Chris's applications to amend the Municipal Development Plan and to adopt its proposed Area Structure Plan. Issues relating to procedural fairness, reasonable expectations and Sturgeon's obligations regarding the preparation of the Area Structure Plan required by the Resolution have not been dealt with.

Costs [ 142 ] While I am sympathetic to Nor-Chris as to the position it has found itself in resulting from what appears to be an about-face by a number of Councillors, that disappointment does not amount to a denial of its reasonable expectations or any breach of procedural fairness. It has been unsuccessful in setting aside the Resolution. [ 143 ] I am not aware of any circumstances why Sturgeon should not have it costs of this application. If costs are in dispute, counsel may speak to me within 30 days from this decision. [ 144 ] I am indebted to counsel for their able written and oral arguments.

Heard on the 16 th day of November, 2012. Dated at the City of Edmonton, Alberta this 22 nd day of March, 2013. Robert A. Graesser J.C.Q.B.A. Appearances: Sheila C. McNaughtan, Q.C. Reynolds Mirth Richards & Farmer LLP for the Plaintiff James K. McFayden, Q.C. Parlee McLaws LLP for the Defendant