Gruman v Canmore (Town), 2016 ABQB 441

Court of Queen ’ s Bench of Alberta Citation: Gruman v Canmore (Town), 2016 ABQB 441 Date: 20160812 Docket: 1601 01690 Registry: Calgary Between: Mark Gruman Applicant - and - The Town of Canmore Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.L. Rawlins _______________________________________________________ I Introduction [ 1 ] This matter comes before me as part of an ongoing judicial review process.

As will be described in more detail below, the Town of Canmore (the “Town”) passed a bylaw changing the zoning designation of certain lands in the Peaks of Grassi area (the “Lands”). The Applicant, Mr. Gruman, objects to that rezoning and has brought an application for judicial review of the decision to pass the impugned bylaw (the “Bylaw”), which application is scheduled to be heard on January 4, 2017. A stay of the operation of the Bylaw is currently in place and Mr. Gruman seeks an extension of that stay until the hearing of the judicial review application.

II Facts [ 2 ] The essential facts leading to this application may be summarized as follows. [ 3 ] The Lands consist of three lots in the Peaks of Grassi neighbourhood in Canmore. The Lands are privately owned by 1861523 Alberta Ltd., Hillcroft Developments Ltd. and 1457115 Ontario Limited (collectively, the “Developer”). [ 4 ] The Lands currently are zoned as Urban Reserve. The purpose and uses of Urban Reserve land are set out in Canmore’s Land Use Bylaw 22-2010 as follows: 1.61 UR Urban Reserve District

2.61.1 Purpose To protect land that is potentially suited for urban uses from premature subdivision and development. Lands located within this district have received preliminary screening only and may require environmental, geotechnical and other screening to determine their potential suitability for any development.

The further intent of the district is to provide for a limited range of rural pursuits and recreational uses that utilize large areas of land. 2.61.2 Permitted Uses Public Utilities 2.61.3 Discretionary Uses Campgrounds Cemeteries Cultural Establishments Extensive Agricultural Pursuits Intensive Agricultural Pursuits Kennels Outdoor Athletic/Recreational Activities Parks and Playgrounds Public and Quasi-Public Buildings & uses Signs [ 5 ] On January 19, 2016, the Town Council of Canmore (the “Council”) approved passed the Bylaw redesignating the Lands as “DC2015-19 Peaks of Grassi Direct Control District, PD-Public Use District, and R1B – Residential Single-Family Detached Plus District”.

The purpose and uses under this redesignation are as follows: 3.33 Peaks of Grassi Direct Control District 3.33.1 Purpose To provide for single family detached, duplex dwelling units, townhouses, and secondary suites where the built form of the homes from the street are similar to the existing dwellings currently constructed on Lawrence Grassi Ridge. 3.33.2 Permitted Uses Home Occupations – Class 1 Parks and Playgrounds Public Utilities Single Family-Detached Dwellings – Site 3 Only Single Family-Detached Plus Dwellings – Site 3 Only Townhouses – Site 1 Only Duplex Plus Dwellings – Site 2 Only Secondary Suites within Single Family Detached or Duplex Dwellings 3.33.3 Discretionary Uses Accessory Development Home Occupations – Class 2 Public and Quasi-Public Buildings Signs [ 6 ] The application for rezoning included a proposal that would see the Developer build a certain number of affordable housing units on the Lands. [ 7 ] As required by the Municipal Government Act , RSA 2000, c M-26 (the “MGA”), Council scheduled a public hearing on

November 24, 2015 in respect of the application. At the hearing before me, counsel for both parties acknowledged that the affordablehousing aspect of the application was discussed at the public hearing. [8] On January 19, 2016, the Canmore Community Housing Corporation (“CCHC”) entered into an agreement (the“Agreement”) with the Developer that, in essence, commits the Developer to building certain of the affordable housing units andcommits the CCHC to buying them. The CCHC is a corporation wholly owned by the Town of Canmore.

It is chaired by JoannaMcCallum, a councillor of the Town, and the Town’s mayor, John Borrowman, is a member of the board. [9] On March 17, 2016, Mr. Gruman filed an application for judicial review of the Bylaw pursuant to s. 536 of the MGA. Asnoted above, that application is scheduled to be heard on January 4, 2017. [10] Two prior stay applications have been brought in respect of this matter. On March 11, 2016, an application before JusticeJones was adjourned to a Special Chambers Application.

On March 31, 2016, it having becoming known that the Developer intended toproceed with logging on the Lands, a stay application was brought before Justice McCarthy on an interim basis. Justice McCarthygranted a stay on that basis pending this hearing. [11] Mr. Gruman seeks an extension of the stay of the operation of the Bylaw pending the hearing of the judicial reviewapplication. III Issues [12] The issue on Mr. Gruman’s application is simply whether he has met the test for an interim stay. If he has not, the Town hasbrought a cross-application seeking to have this matter dismissed on its merits.

IV Law and Analysis [13] The parties are in substantial agreement as to the applicable law. Mr. Gruman relies on Rule 3.23 of the Rules of Court, whichprovides: Stay of decision 3.23(1) The Court may stay the operation of a decision or act sought to be set aside under an originating application for judicial reviewpending final determination of the originating application.

(2) Despite subrule (1), no order to stay is to be made if, in the Court’s opinion, the stay would be detrimental either to the public interestor to public safety. [14] It is common ground that the test on an application under this Rule is the tripartite test for an interlocutory injunctionarticulated by the Supreme Court of Canada in RJR-MacDonald Inc v Canada (Attorney General) (SCC), [1994] 1SCR 311.

An applicant must establish that: a. there is a serious issue to be tried; b. the applicant will suffer irreparable harm if no injunction is granted; and c. the balance of convenience between the parties favours granting the injunction. A. Serious Issue to be Tried [15] Mr. Gruman asserts that the threshold for demonstrating a serious issue to be tried is low. He cites the Court of Appeal’sdecision in ARLS v MD, 2014 ABCA 292 at para 14 for the proposition that “The first question requires a preliminary assessment of themerit of the case.

The court must determine if this is a serious question as opposed to a frivolous or vexatious one.” The Town concedesthat the threshold is low but argues nevertheless that Mr. Gruman has not met it. [16] Mr. Gruman relies on the following five grounds for seeking judicial review of the Bylaw. However, his counsel devotedmost of his oral submissions to the first of these and acknowledged that it was his strongest argument: 1. In passing the Bylaw, the Town breached natural justice, fairness and the Town’s procedural bylaw by consulting with ornegotiating with the Developer after the close of the public hearing. 2.

In passing the Bylaw, the Town failed to consider whether the rezoning of the Lands was premature or whether environmental,geotechnical or other screening was required by the Town’s Land Use Bylaw to determine the suitability of the Lands for rezoning. 3. In passing the Bylaw, the Town failed to comply with an undertaking given to the NRCB proscribing construction on slopes inexcess of 25% grade or alternatively, in light of the NRCB’s concern, failed to undertake geotechnical or other screening beforerezoning. 4.

The Council was biased or created the perception of bias in passing the Bylaw as a result of the familial relationship between one ofthe Councillors and counsel for the Developer. 5. The rezoning violates the Water Act, RSA 2000, c W-3.

[17] Turning to the first ground, Mr. Gruman cites clause 12.7 of the Town’s Procedural Bylaw (Bylaw 04-2013), which providesas follows: 12.7 Council shall not discuss or consider any input from the applicant or members of the public regarding a matter underconsideration that is received after the adjournment of the public hearing held to hear that matter. [18] Mr. Gruman asserts that the rationale behind this provision is to prevent private discussion and consideration of matterswithout public input.

He also argues that procedural fairness and natural justice require that the public be given an opportunity to addressadditional submissions and promises made by the Developer. [19] Though the Agreement was made between the Developer and the CCHC, not the Town, it was presented at the Councilmeeting at which the Bylaw was passed and Mr. Gruman argues that this is equally offensive.

He points to the comments of the majorityof the British Columbia Court of Appeal in Re Bourque (1978), (BC CA), 6 BCLR 130 at para 10: What is determinative, in my opinion, is that a proponent of the by-law was heard by the planning committee in the absence ofopponents of the by-law and that the report of the committee prepared following that hearing was considered by council without theappellants being heard thereon.

There is no question that it would have been improper for council to have heard an officer of thedeveloper in the absence of the opponents of the by-law and without their being afforded an opportunity to be heard. That wouldcontravene the provisions of s. 703 as interpreted by this court in both Bay Village Shopping Centre Ltd. v. Victoria, (BC CA), [1973] 1 W.W.R. 634, 31 D.L.R. (3d) 570, and McMartin v. Vancouver (1968), (BC CA), 65 W.W.R. 385,70 D.L.R. (2d) 38.

I think the provisions of s. 703 are equally contravened where, as in the case at bar, a proponent of the by-law is heardin the absence of opponents of that by-law by a special committee of council which then submits a report to council. That, it seems to me,is doing indirectly what may not be done directly. [20] Mr. Gruman argues that, in meeting with the Developer and negotiating the Agreement, albeit on behalf of the CCHC ratherthan the Town, Councillor McCallum and Mayor Borrowman violated the Procedural Bylaw and the duties of procedural fairness andnatural justice.

He asserts that these negotiations were an opportunity for the Developer to “sweeten” the deal for the Town without aconcomitant opportunity for opponents to be heard. His position is that the presentation of the Agreement at the Council meeting prior tothe vote on the Bylaw was “input” subsequent to the public hearing and violated the Procedural Bylaw. [21] For its part, the Town argues that clause 12.7 of the Procedural Bylaw applies only to the conduct of public hearings, not tothe conduct of meetings of Council.

The Town also asserts that “no new substantial information” was provided to the Council betweenthe public hearing and the January 19, 2016 Council meeting. It states that “The Agreement in no way affected the use or developmentof the lands and only provided an incentive to develop the Lands.” [22] The Town makes the point that it would be unreasonable to expect that no information would come to Council’s attentionbetween the public hearing and the vote on the Bylaw.

It refers to Atkins v Calgary (City) 1994 ABCA 385 , [1994] 162 AR 97at para 14 where Kerans JA said: I would not extend, in every case, the right to be heard to a right to demand of the councillors that they decide the case only on what theyhear at the public hearing. The undoubted duty of council to exercise its powers fairly does not go that far, at least not in a case where thequestion before council involves matters of public and legislative policy, and not just a fair resolution of a dispute between citizens on thebasis of sound planning principles. [23] Counsel for Mr.

Gruman pointed out that neither Bourque nor Atkins pertained to a provision akin to clause 12.7 of theProcedural Bylaw. [24] The Town argues that the Procedural Bylaw is not intended for the purpose advocated by Mr. Gruman and is intended only toprevent private meetings resulting in fundamental changes to what is discussed at the public hearing. [25] While I think Mr. Gruman’s

interpretation of the Procedural Bylaw is strained and his argument that the Agreementconstituted impermissible input is not strong, I cannot go so far as to conclude that the argument is frivolous and vexatious. Accordingly,I must, with some reluctance, find that Mr. Gruman has met this portion of the tripartite test. I hasten to add that, had the standard beenmore stringent, I would have arrived at a different conclusion. [26] Moreover, notwithstanding the rigorous standard, I find that none of Mr.

Gruman’s arguments respecting further screening,the NRCB, the Water Act and the alleged bias of one of the Councillors raises a triable issue. [27] Mr. Gruman argues that the Town failed to follow the Land Use Bylaw by obtaining environmental, geotechnical and otherscreening of the Lands as required under the Urban Reserve designation. [28] The Town argues, first, that the Urban Reserve designation states only that such further screening may be required atCouncil’s discretion and only if the Lands are to remain Urban Reserve.

It argues that no such screening is required for purposes ofchanging the zoning of the Lands. The Town also argues that, even if further screening was required, a Sustainability Screening Reportwas completed prior to the Request for Decision on October 20, 2015. [29] I am satisfied that there is no serious issue to be tried respecting further screening.

I agree with the Town’s position that suchfurther screening is not required for redesignation and that, even if it was, it appears to have been undertaken. [30] I agree with the Town’s submission that neither the NRCB decision nor the undertaking given to the NRCB is binding uponthe Town so as to preclude the Town from authorizing development of the Lands. This does not raise a serious issue to be tried. [31] Mr. Gruman argues that, in passing the Bylaw, the Town has acted in contravention of the Water Act, which requiresobtaining a license:

License required 49(1) Subject to subsection (2), no person shall (

a) commence or continue a diversion of water for any purpose, or (

b) operate a works, except pursuant to a license unless it is otherwise authorized by this Act. [32] While the Town acknowledges that no such license has been obtained, it argues: (1) that the Bylaw contemplates diversion offlood waters, which are not covered by the Water Act; (2) that no license is needed until development of the Lands begins; and (3) thatthe license requirement applies to the Developer, not to the Town. [33] Based on the evidence before me, I am not able to determine whether the proposed water diversion is of the typecontemplated by the Water Act.

It is clear, however, that the license requirement does not apply to passage of the Bylaw by the Town.Such a license, if it is needed at all, will be needed by the Developer if and when it begins development of the Lands. This argumenttherefore fails to raise a serious issue. [34] Next, Mr. Gruman alleges bias on the part of Councillor Esme Comfort, whose son acts as counsel for the Developer. Henotes that Ms. Comfort voted in favour of the Bylaw notwithstanding that she was in a “clear conflict of interest”. [35] The Town argues that there is no evidence of bias on the part of Ms.

Comfort apart from her familial relationship. It assertsthat such a relationship is expressly excluded as a conflict of interest by s. 170(3) of the MGA, which provides: 170(3) A councillor does not have a pecuniary interest by reason only of an interest (

f) that a member of the councillor’s family may have by having an employer, other than the municipality, that is monetarily affectedby a decision of the municipality. [36] The Town points to Atkins at para 24 in support of its position that the MGA sets out a “complete code” in respect of conflictsof interest for municipal councillors. [37] I agree that the MGA appears to provide a complete answer to Mr. Gruman’s allegation. In the absence of evidence of biasgoing beyond the mere familial relationship, this allegation raises no serious issue. No such evidence is before me. B. Irreparable Harm [38] Mr.

Gruman asserts that irreparable harm is harm that is not compensable by monetary damages and must be clear and non-speculative. The Town agrees with this articulation of the necessary standard. [39] Mr. Gruman argues that the harm in this case is that if the stay preventing the Bylaw’s operation is lifted, the Developer willproceed with logging on the Lands, resulting in the loss of a mixed coniferous forest. Mr.

Gruman states that the trees in question areover 100 years old and, for all practical purposes, cannot be replaced. [40] Counsel for the Town argued that the age of the trees is irrelevant and that logging, should it occur, would represent only “atemporary loss of natural resources”. [41] Each party referred to case law. The Town cited the decision of Madam Justice Kent of this Court in Connop v Dunn, 2002ABQB 989, in which she stated as follows at para 12: The second issue is whether developing the road will cause irreparable harm. Mr.

Connop argues that the irreparable harm is that largetrees that will take many years to replace will be cut down. In fact, that is not the harm. The harm is that a road will be developed. It isnot the trees that will be lost, but the road that will be created. In my view, that is not irreparable harm. If at the end of the day, Mr.Connop succeeds in his action, the road can be plowed under. That can be recompensed with damages. Accordingly, Mr. Connop will notsuffer irreparable harm. [42] In contrast, Mr.

Gruman refers to the decision of the Court of Appeal in Bar C Ranch and Cattle Company Ltd v Red RockSawmills Ltd, 2004 ABCA 113 at para 16: In our view, there is ample authority for the proposition that damage from logging falls into the category of irreparable harm, see:MacMillan Bloedel Ltd. v. Mullin, (BC CA), [1985] 3 W.W.R. 577 (B.C.C.A.), leave to appeal to Supreme Court ofCanada refused [1985] 5 W.W.R. lxiv. In that case the court noted that if logging proceeds, and it turns out that the applicants had theright to the area with the trees standing, it would no longer be possible to give them that right.

Accordingly, we find that there is asubstantial risk of irreparable harm and that it would be difficult to quantify, if indeed it could be quantified. [43] The Town points out that Bar C concerned the ownership of the land and trees in question while Mr. Gruman does not ownthe Lands or, by extension, the trees. It argues in its brief that Mr. Gruman “...may like the existence of the trees on the Lands, and its useas a green space, but he has no right to preserve it.” [44] Be that as it may, I prefer the view of the Court of Appeal that logging represents irreparable harm.

In my view, it is thedestruction of the forest, not the ownership thereof, that is material to this analysis. [45] Accordingly, I find that Mr. Gruman has satisfied the irreparable harm criterion of the tripartite test.

C. Balance of Convenience [ 46 ] Finally, there is the question of balance of convenience. In this respect, Mr. Gruman’s argument is substantially the same as his argument under irreparable harm. Indeed, his counsel argued at the hearing that the inconvenience to Mr. Gruman is “sort of tied to the irreparable harm”. [ 47 ] Mr. Gruman argues that there is no significant inconvenience to the Town.

He points to the fact that the judicial review application is scheduled to be heard some five months from now. [ 48 ] The Town asserts in its brief that “This Action is an attempt by a disgruntled citizen to have his opinion take precedence over the decision of an elected government body.” and that “If this Court permits decisions of Council to be stayed for months, citizens will use and abuse the judicial process to interfere with the orderly government of municipalities.” [ 49 ] The analysis of this part of the tripartite test is, by its very nature, a balancing exercise.

While I appreciate that Council may find it frustrating to have its decisions delayed, the MGA specifically provides for this level of judicial oversight. Mr. Gruman is entitled under that statute to seek judicial review and, should his application be found to be without merit, that may be addressed in costs. Given the nature of the potential harm and the short time before the hearing of the judicial review application, and notwithstanding that I consider his argument tenuous, I find that the balance of convenience is in Mr. Gruman’s favour.

V Cross-Application [ 50 ] The Town brought a cross-application seeking to dismiss Mr. Gruman’s action on the basis that he could not show a triable issue. That cross-application is brought pursuant to Rule 7.1(3), which states:

(3) If the Court is satisfied that its determination of a question or issue substantially disposes of a claim or makes the trial of the issue unnecessary, it may (

a) strike out a claim or order a commencement document or pleading to be amended, (

b) give judgment on all or part of a claim and make any order it considers necessary, (

c) make a determination on a question of law, or (

d) make a finding of fact. [ 51 ] In light of my conclusions above, the cross-application is dismissed with respect to the Procedural Bylaw issue. [ 52 ] However, as I have found that Mr. Gruman’s arguments with respect to further screening, the NRCB, the Water Act and the alleged bias do not raise a serious issue to be tried, it follows that the cross-application should be granted with respect to those issues. VI Conclusion [ 53 ] In the result, Mr. Gruman has satisfied the tripartite test. The operation of the Bylaw is stayed pending the hearing of the judicial review application.

That judicial review application, however, will proceed only on the issues not dismissed pursuant to the Town’s cross-application. [ 54 ] Costs shall be in the cause. Heard on the 21 st day of July, 2016. Dated at the City of Calgary, Alberta this 12 th day of August, 2016. B.L. Rawlins J.C.Q.B.A. Appearances: James L. Laycraft, Q.C.

Wilson Laycraft for the Applicant Michael Aasen McLennan Ross LLP for the Respondent