Campbell v Edmonton (City), 2014 ABQB 742

Court of Queen ’ s Bench of Alberta Citation: Campbell v Edmonton (City), 2014 ABQB 742 Date: 20141204 Docket: 1303 15234 Registry: Edmonton Between: Jarrett Campbell Applicant - and - City of Edmonton Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] Jarrett Campbell applies for an Order pursuant to

section 536 of the Municipal Government Act , RSA 2000, c M-26 [ Municipal Government Act ], and an Order in the nature of certiorari to have three Bylaws of the City of Edmonton [the City] declared invalid and quashed. The Application was made on the basis that the process adopted for the enactment of the Bylaws was not fair as the City Administration provided information to the Councillors of the City [City Council] that was incomplete and misleading; and that, at

least some members of City Council met with and received information from the developer of the project under consideration that was not disclosed or made available to other interested parties. At the hearing of this Application, Mr. Campbell abandoned the ground that members of City Council met with and received information from the developer that was not disclosed or made available to other interested parties. II. Factual Background [ 2 ] Mr. Campbell is a resident of the Oliver community in the City of Edmonton and is the President of the Oliver Community League [the Community League].

Initially, this Application was brought by Mr. Campbell personally. However, he subsequently received authorization to proceed with the Application as a representative of and on behalf of the Community League. [ 3 ] The three Bylaws in question relate to the redevelopment of lands located at 10439-121 st Street and 10549-121 st Street in the City of Edmonton [the Molson Site]. [ 4 ] The three Bylaws challenged are: (

a) Bylaw 16552 – an Amendment to the Oliver Area Redevelopment Plan to allow the development of commercial, residential and public park uses on the Molson Site; (

b) Bylaw 16553 – to rezone the Molson Site from Heavy Industrial to General Business Zone, High Rise Apartment Zone and Public Parks Zone; and (

c) Bylaw 16554 – on closure of a portion of 120 th Street and consolidation with the Molson Site.

Bylaws 16552, 16553 and 16554 are collectively referred to herein as the Bylaws. [ 5 ] In March 2013, the developer of the Molson Site applied to the City to pass certain Bylaws required in order to redevelop the Molson Site [the Rezoning Application]. [ 6 ] The Community League supported redevelopment of the Molson Site but favoured redevelopment pursuant to a Site Specific Development Control [Direct Control] which, in its view, would provide for a greater degree of control over the development of the Molson Site. [ 7 ] The process within the City, upon receipt of a rezoning application, is that the Sustainable Development Department circulates the application to various Branches and Sections within the Sustainable Development Department, as well as to other City Departments and to utility agencies.

There are four other Departments in the organizational structure of the City: Transportation, Financial Services and Utilities, Corporate Services and Community Services. [ 8 ] The Sustainable Development Department is tasked with circulating the application, assembling and weighing feedback received, and making a recommendation to City Council to either support or not support the application. One of the Branches within the Sustainable Development Department is the Current Planning Branch [Current Planning].

The decision of the Sustainable Development Department to support or not support a rezoning application has been delegated to Current Planning. This process was followed with respect to the Rezoning Application. [ 9 ] Notice of the Rezoning Application was also provided by the Sustainable Development Department to surrounding property owners, the Oliver, Queen Mary Park and Westmount Community Leagues, the 124 th Street and Area Business Revitalization Zone Association and the North Edge Business Revitalization Zone Association.

Notice was provided to 1,111 (one thousand, one hundred and eleven) individuals and entities. A public meeting was also held. Feedback was received from some of the parties who had received notice of the Rezoning Application. [ 10 ] Scott Mackie is, and was at the material times, Branch Manager of Current Planning. He was involved in the Rezoning Application. Mr.

Mackie has deposed that the decision to support or not support a rezoning application is based upon the input Current Planning receives from within the Sustainable Development Department and from input it receives from outside the Department; and that in nearly every rezoning application put to City Council, there are critical comments and observations made internally within the Sustainable Development Department.

Current Planning is responsible for determining whether the concerns are substantial enough to merit non-support of the application under consideration or whether such concerns can be otherwise addressed. [ 11 ] Mr.

Mackie deposed that the process for considering concerns raised is as follows: Where senior administration of the Sustainable Development Department concludes that a concern or opinion can be meaningfully addressed (whether through development and, or subdivision conditions, servicing agreements, negotiation, legal instrument or some other mechanism, etc), or is significantly outweighed by other planning or policy factors, it is the standard practice of the Sustainable Development Department to consider the issue and, or concern “resolved” and it is not brought forth to Council in the report of the Sustainable Development Department (although it may still be discussed at the Public Hearing). [see, Affidavit of Scott Mackie, filed November 13, 2014, at para 9]. [ 12 ] Normally, rezoning precedes the submission of applications for Development Permits.

In this case, the developers of the Molson Site submitted material to support a Development Permit Application with respect to the Molson Site and an adjacent site prior to approval of the Rezoning Application. As was known to the Sustainable Development Department, subdivision of the Molson Site and closure of 120 th Street was required in the development proposed for the Molson Site and the adjacent site. Mr. Mackie deposed that a number of concerns raised by individuals within the Sustainable Development Department could be addressed as conditions of the

Development Permits, subdivision approval or agreements made with the developers of the project. [13] Ultimately, the Rezoning Application was to proceed to a Public Hearing before City Council. A pre-hearing review wasconducted which entailed discussions and communications, both internal and external, to the City. Certain Branches of the SustainableDevelopment Department raised concerns with the Rezoning Application and did not support same. Other Branches within theSustainable Development Department supported the Rezoning Application.

None of the other four City Departments or the utilitiesaffected took a position of non-support to the Rezoning Application.

Some Branches within the Financial Services and TransportationDepartments and some of the utilities affected supported the Rezoning Application with conditions. [14] As a result of that review process and weighing the concerns expressed, Administration within the Sustainable DevelopmentDepartment was of the opinion that the Rezoning Application was worthy of support. [15] Current Planning prepared Administration Council Reports [the Council Reports] with respect to each of the three Bylaws.Each Council Report contained a statement that “no civic department or utility agency expressed concern regarding” the Bylaw inquestion.

In addition, Current Planning prepared a Sustainable Development Report [the Department Report]. The Department Reportrecommended approval of the Bylaws. The Council Reports and the Department Report were all provided to members of City Councilbefore the Public Hearing was conducted on August 26, 2013. [16] The Council Reports and the Department Report were available to Mr. Campbell and the Community League prior to thePublic Hearing. Mr.

Campbell, or others, met with six members of City Council prior to the Public Hearing and sent an email to thosesix members and one other member of City Council setting out concerns which they had with respect to the Council Reports and theDepartment Report. The concerns expressed were that the statement in the Council Reports that “no civic department expressed concern”was misleading and that the concerns expressed by Branches within the Sustainable Development Department were omitted from theDepartment Report. The email sent by Mr.

Campbell urged the members of City Council to whom the email was sent to question themembers of the City Administration attending the Public Hearing on these matters. One of the members of City Council to whom theemail was directed advised Mr. Campbell after the Public Hearing that the email directed to her had not been received. [17] A representative of the Community League attended the Public Hearing and addressed City Council.

The individualappearing at the Public Hearing advised City Council that representatives of the Community League had had an opportunity to reviewthe internal documents generated within the Sustainable Development Department with respect to the Rezoning Application, and thatsome groups within the Department had expressed concerns with respect to the Rezoning Application and did not support same.

Therepresentative of the Community League expressed the desire of the Community League that the development proceed as a DirectControl development. [18] At the conclusion of the Public Hearing on August 26, 2013, the Bylaws were voted on and passed by City Council. III. Positions of the Parties [19] Mr.

Campbell and the Community League argue that the Council Reports and the Department Report were incomplete andmisleading in that they failed to document the concerns of various planners and others within the City Administration; and that some ofthe parties to whom the Rezoning Application had been circulated did not support the Rezoning Application. Further, Mr.

Campbell andthe Community League argue that the Council Reports and the Department Report failed to mention the manner in which certainenvironmental issues were being addressed; and how land with respect to future LRT development along the Molson Site was beingacquired. Mr.

Campbell and the Community League therefore seek to have the Bylaws set aside and a new Public Hearing held as, theysay, the manner of passing the Bylaws was not procedurally fair. [20] The City argues that the Rezoning Application was reviewed pursuant to the process adopted by the City and that anyinformation provided to City Council was neither incomplete nor misleading. The Public Hearing was conducted in accordance with theprinciples of natural justice and procedural fairness and there is, therefore, no basis for setting aside the Bylaws. IV.

Issue [21] The Court must determine whether City Council was misled or misinformed by the City Administration in passing theBylaws and there was, therefore, a breach of the rules of procedural fairness. V.

Procedural Fairness [22] This Application puts in issue the manner in which City Council went about making its decision to pass the Bylaws.Therefore, this requires a consideration of whether there was a breach of procedural fairness. [23] Our Court of Appeal in Keefe v Edmonton (City), 2005 ABCA 144 at para 15, 363 AR 384 [Keefe], addressed the matter ofthe relevant factors to be considered in determining the content of procedural fairness and stated: The central issue in this case concerns the content of City Council’s duty of procedural fairness.

The relevant considerations to beconsidered in determining the content of procedural fairness articulated in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 were recently reiterated by McLachlin C.J.C. in Congrégation des témoins de Jéhovah deSt-Jérôme-Lafontaine c. Lafontaine (Municipalité) (2004), 323 N.R. 1, 2004 SCC 48. There she stated at para. 5:

The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant towhich the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the partychallenging the decision; and (5) the nature of the deference accorded to the body. [24] I turn, therefore, to a consideration of the factors set out in Baker. [25] Dealing, with the nature of the decision being made and the process followed in making the decision, the Supreme Court ofCanada in Baker held that regard must be had to the resemblance between the processes and functions of the board and a trial.

The morethe process, the function of the decision maker, the nature of the decision making body and the determinations that must be made toreach a decision resemble judicial decision making, the more likely it is that procedural protections close to a trial model will berequired. [26] The amount of procedural fairness that must be afforded by City Council on a rezoning application is a spectrum varying froma moderate level of procedural fairness at one end to a high level of procedural fairness at the other.

Our Court of Appeal has consideredthis matter in its decision in Calgary (City) v Valdun Development Ltd, 1997 ABCA 134 at para 22, 51 Alta LR (3d) 31. The Courtstated: The scheme of the planning legislation and the case law interpreting it indicate that the powers exercised by Council in circumstancessuch as this are both legislative and quasi-judicial. Council’s legislative function, which pertains to the public interest in municipalplanning, precludes it from restricting the submissions it hears to those which are relevant only to technical planning issues relating to theproperty in question.

With respect to the nature of the decision-making process facing Council in a situation like this, Kerans, J.A. said inAtkins v. Calgary (City) (1994), 1994 ABCA 385, 25 Alta. L.R. (3d) 365 at 370: The key question is which paradigm best fits the process that engaged council in this case. The Supreme Court, in Old St. BonifaceResidents Assn Inc. v. Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170, 115 N.R. 46, [1991] 2 W.W.R. 145, rejected anyattempt to force any new form of proceeding into one or the other traditional pattern.

It said instead that modern administrative hearingsmight fall anywhere along a spectrum between the two extremes.

Selection of the right point in the spectrum requires examination of thenature of the decision asked of the tribunal, and of the rules established by the governing statute. (Emphasis added) He added that the “dividing line” between the legislative and quasi-judicial functions may lie in the nature of the issue before Council (p.373): When the proposed re-designation is about one parcel, and the dispute is between two citizens, and when no larger question of publicpolicy is engaged, I would expect that, in the absence of some special reason, the hearing would be inclusive and decisive.

In other cases,especially when larger political questions arise, the role of a council is much more legislative than judicial and the hearing should beseen by all as nothing more than one aspect of the decision process. [Emphasis in Original]. [27] The matter being considered by City Council in this case was not a dispute between two citizens. Rather, it involved largerpolitical questions such as the overall development of the Molson Site, ramifications for several surrounding communities andramifications for future LRT development.

That this is so is evident from the fact that notice of the Rezoning Application was circulatedto 1,111 individuals and organizations and from the wide consultation that was undertaken by the Sustainable Development Departmentin its review of the Rezoning Application. [28] The second factor encompasses the nature of the statutory scheme and the terms of the statute pursuant to which City Counciloperated. The Municipal Government Act authorizes, and in certain instances, mandates City Council to undertake steps with respect tothe planning and development of lands within the City.

The Municipal Government Act also directs that in relation to certain matters, aPublic Hearing must be held before second reading of certain bylaws. The steps taken by City Council with respect to the RezoningApplication and the Public Hearing were all in accordance with the Municipal Government Act. Mr.

Campbell and the CommunityLeague do not challenge, in any way, that the process followed by City Council with respect to the Rezoning Application was not inaccordance with the requirements of the Municipal Government Act. [29] The third factor requires that consideration be given to the importance of the decision of City Council to Mr. Campbell andthe Community League. The Supreme Court of Canada in Baker indicated that the more important the decision is to the life of theindividual affected and the greater its impact on that person, the more stringent will be the mandated procedural protections.

In this case,the development of the Molson Site, no doubt, would have an impact on residents in the Oliver community, being a communityrelatively contiguous to the Molson Site. Therefore, Mr. Campbell, as an individual residing within that community, as well as othermembers of the Community League would be affected by any decision of City Council with respect to the development of the MolsonSite. Having said that, any decision with respect to the development of the Molson Site would not, in my view, be said to be an extremelyimportant decision affecting the lives of individuals residing in the Oliver Community.

City Council must, of course, balance anyimpacts on individuals against the overall public interest. [30] Fourth, consideration must be given to the legitimate expectations of Mr. Campbell and the Community League, being thechallengers of the Bylaws. Mr. Campbell and the Community League do not challenge the manner in which the Public Hearing wasconducted. Rather, they challenge the information which was provided by the City Administration to City Council. As stated, Mr.Campbell and the Community League argue that the information provided was either incomplete or misleading.

There is nothing beforethe Court to suggest that the manner in which the Rezoning Application was handled by the Sustainable Development Department or theinformation which was provided to City Council was not in accordance with the procedures as mandated or delegated by City Council; orthat Mr. Campbell or the Community League had some expectation that the procedures would be otherwise than as were followed in thiscase. [31] Fifth, consideration must be given to the nature of the deference accorded to City Council. Municipal councils enjoy a large

degree of procedural autonomy regarding the conduct of their hearings: Keefe at para 21. [32] It must be kept in mind that Mr. Campbell and the Community League bear the onus of proof in this application. Our Court ofAppeal addressed this issue in Lethbridge (City) v Daisley, 2000 ABCA 79 at paras 22-23, 250 AR 365 [Lethbridge] as follows: Normally, he or she who asserts must prove. In the case of an application for judicial review, the applicant bears the initial burden ofestablishing the grounds for review: Minister of National Revenue v.

Wrights’ Canadian Ropes Ltd., (UK JCPC),[1947] 1 D.L.R. 721 (P.C.) aff’g and varying (SCC), [1946] 2 D.L.R. 225 (S.C.C.); H.W.R. Wade, Administrative Law,6th ed. (Oxford: Clarendon Press, 1988) at 342-344. In the present case the neighbours must also overcome the presumption of regularity. The presumption in such cases is omniapraesumuntur rite et solemniter esse acta donec probetur in contrarium - where acts are of an official nature, it is a presumption of lawthat they are correctly and solemnly done unless the opposite is proven: R. v. Larsen (1992), (SK CA), 97 Sask. R.310 (Sask. C.A.); see also Irvine v.

Canada (Restrictive Trade Practices Commission) (SCC), [1987] 1 S.C.R. 181. [33] Having regard to the foregoing, I conclude that the role being exercised by City Council was much more legislative thanquasi-judicial and, therefore, City Council was obliged to afford a moderate level of procedural fairness to Mr. Campbell and theCommunity League. VI. Was the Duty Breached? [34] Mr. Campbell and the Community League argue that the Bylaws were enacted based on misleading or incompleteinformation, and are therefore invalid and must be set aside. Mr.

Campbell and the Community League rely on the decision in Simonelliv Rocky View (Municipal District No 44), 2004 ABQB 45, 350 AR 286 in this regard. [35] The information which Mr. Campbell and the Community League contend was incomplete is that the City Administration inthe Council Reports and the Department Report failed to disclose that certain Branches within the Sustainable Development Departmentdid not support the Bylaws. Further, Mr.

Campbell and the Community League argue that the Council Reports and the DepartmentReport were misleading in that these documents indicated that “no civic department or utility agency expressed concern” with respect tothe Bylaws. Mr.

Campbell and the Community League also argue that Current Planning failed to fully disclose how environmental issuesand future LRT development including the acquisition of land for the LRT right-of-way were being addressed, and whether the TransitOriented Guidelines were being followed. [36] There is nothing to suggest that the way Current Planning handled the Rezoning Application and the reporting thereon wasnot in accordance with the procedures developed for such applications or that the decision made by Current Planning to recommendpassage of the Bylaws was not in accordance with the authority delegated to it.

Mr. Mackie has deposed that the Rezoning Applicationwas processed by Current Planning in accordance with the procedures developed. Further, his evidence is that Current Planningdetermined that any concerns raised by other Branches within the Sustainable Development Department could be addressed through suchthings as development conditions, servicing agreements, legal instruments or other mechanisms.

Therefore, Current Planning consideredthe concerns or issues resolved which resulted in the Sustainable Development Department supporting the Rezoning Application andrecommending passage of the Bylaws. [37] I find that the information provided by the City Administration to City Council was neither incomplete nor misleading. [38] The issue before this Court is different from the issue which was before the court in Simonelli.

In that case, the municipalcouncil involved acted on incorrect evidence which was shown at the judicial review to be false and which was not in any meaningfulway challenged or debated before the municipal council. Park J concluded that it was “impossible to determine what weight, if any, wasgiven to such inaccurate considerations and evidence” and that the decision could not “be upheld as being reasonable based on theinaccuracies and irrelevant material and considerations provided”.

The Bylaw in question was therefore set aside and a new publichearing ordered. [39] In this case, it cannot be said that the information provided to City Council was in any way inaccurate or irrelevant. Based onthe evidence before me, the information from and recommendation by Current Planning was in accordance with the establishedprocedures: Affidavit of Scott Mackie, filed November 13, 2014, at para 9.

Further, City Council must be taken to know, generally, thebasis upon which the Rezoning Application would be reviewed by the Sustainable Development Department, and the basis upon whichthat Department would make recommendations to City Council. As set out in Lethbridge, acts of an official nature are presumed to becorrectly and solemnly done unless the opposite is proven. That presumption applies to the manner in which City Council received therelevant information and recommendations from the Sustainable Development Department. Mr.

Campbell and the Community Leaguebear the onus of proof and they have failed to prove that the actions of City Council were not correctly and solemnly done. [40] I find there was no breach of procedural fairness in this case and, therefore, no basis to set aside the Bylaws. VII.

Was There Prejudice? [41] With regard to prejudice, our Court of Appeal in Keefe at para 29 stated as follows: Absent an express statutory statement, no procedural defect should vitiate a proceedings [sic] unless a real possibility of prejudice can beshown or unless the procedure followed is so devoid of the appearance of fairness that the administration of justice would be brought

into disrepute: Bridgeland Riverside Community Association v. Calgary (1982), 1982 ABCA 138 , 37 A.R. 26 at para. 28(C.A.). [42] Even if there was a breach of procedural fairness in this case, I would not set aside the Bylaws as, in my view, there is no realpossibility of prejudice to Mr. Campbell or the Community League, and the procedure – in the circumstances of the present matter – wasnot so devoid of the appearance of fairness that the administration of justice would be brought into disrepute. [43] Mr.

Campbell and others met with six members of City Council and forwarded an email to at least those six members whichaddressed the concerns of the Community League that the information provided by the City Administration in advance of the PublicHearing was both misleading and inaccurate. The email urged the members of City Council to ask questions of the City Administrationwith respect to these issues at the Public Hearing.

Further, the representative of the Community League who addressed City Council atthe Public Hearing also raised these issues. [44] A review of transcripts of excerpts of the Public Hearing makes it clear that City Council was alive to the concerns of theCommunity League and that there was a full airing of those concerns at the Public Hearing. [45] As set out previously herein, the fundamental concern of the Community League is that the Molson Site should have beenredeveloped pursuant to a Direct Control.

A review of the transcripts makes it clear that there was also a full airing of this issue beforeCity Council. [46] I am satisfied that the procedures leading up to the Public Hearing, and the conduct of same, are not so devoid of theappearance of fairness that the administration of justice would be brought into disrepute.

A reasonable person reasonably informed of thefacts surrounding the process for reviewing the Rezoning Application, the making of a recommendation to City Council and the conductof the Public Hearing would not conclude that the process as a whole was devoid of fairness such as to bring the administration of justiceinto disrepute. [47] I therefore find that neither Mr. Campbell nor the Community League were prejudiced in any way in the process leading up tothe passage of the Bylaws. VIII. Conclusion [48] The Application of Mr. Campbell and the Community League is dismissed. IX.

Costs [49] The parties may speak to me within 30 days of these Reasons for Judgment if they are otherwise unable to agree on costs. Heard on the 21st day of November, 2014. Dated at the City of Edmonton, Alberta this 4th day of December, 2014. K.G. Nielsen J.C.Q.B.A. Appearances: Janice A. Agrios, QC Kennedy Agrios LLP for the Applicant

Michael S. Gunther and Barry R. Alloway City of Edmonton - Law Branch for the Respondent