Neufeld v County of Mountain View, 2016 ABQB 676

Court of Queen ’ s Bench of Alberta Citation: Neufeld v County of Mountain View, 2016 ABQB 676 Date: 20161202 Docket: 1301 09070 Registry: Calgary Between: Abe Neufeld, 1273927 Alberta Ltd., 404048 Alberta Ltd., Style Realty Inc. and 1546775 Alberta Ltd., Operating as Neuroese Properties Appellants/Plaintiffs - and - The County of Mountain View, Paddy Munro and Kevin Good Respondents/Defendants _______________________________________________________ Memorandum of Judgement of the Honourable Madam Justice E.A. Hughes _______________________________________________________

Appeal from the Order by J.T. Prowse, Master in Chambers ( 2014 ABQB 443 , Docket: 1301 09070) I. Introduction [ 1 ] The Respondents/Defendants, the County of Mountain View, Paddy Munro and Kevin Good (collectively referred to as the “County” or the “County of Mountain View” or “MVC”) sought

summary judgment pursuant to Rule 7.3 submitting there was no merit to the Appellants/Plaintiffs, Abe Neufeld, 1273927 Alberta Ltd., 404048 Alberta Ltd., Style Realty Inc. and 1546775 Alberta Ltd., operating as Neuroese Properties (collectively referred to as “Neuroese”) claims. [ 2 ] The application was heard by the Master who granted the County’s application and dismissed Neuroese’s claims summarily. [ 3 ] Neuroese appeals that decision. II. The Evidence [ 4 ] The evidence in this application is extensive and voluminous. Argument proceeded over four days. [ 5 ] The County filed an affidavit in support of its application for

summary dismissal. The affiant was John Rusling, the County’s Director of Planning and Development. Mr. Rusling was questioned on his affidavit. [ 6 ] Neuroese questioned two of the defendants: 1. Kevin Good - Mr. Good was an elected Councillor in the County between October 2010 and October 2013. 2. Paddy Munro - Mr. Munro was an elected Councillor in the County between October 2010 and October 2013. [ 7 ] Pursuant to Rule 6.8 of the Alberta Rules of Court , Neuroese questioned the following individuals: 1. Al Kemmere - Mr. Kemmere was and is an elected Councillor in the County of Mountain View.

He served as Reeve between 2004- 2010. 2. Bruce Beattie - Mr. Beattie was and is an elected Councillor in the County. 3. Tracey Connatty - Ms. Connatty was and is a planner in the County commencing in January 2008. 4. Tony Martens - Mr. Martens was and is the Chief Administrative Officer for the County. 5. Gail Eyers - Ms. Eyers was and is the Executive Assistant to Mr. Martens 6. Jonathan Schmidt- Mr.

Schmidt was a community planner with McElhanney Consulting, a consulting firm, which has worked for the County. [ 8 ] Neuroese filed affidavits from the following three individuals, each whom was questioned on their respective affidavit(s): 1. Herbs Styles - Mr. Styles is an officer and director of Styles Reality Inc., one of the Plaintiffs in the action. 2. Nathan Petherick - Mr. Petherick is a Planner and his employer consults to Neuroese. He is also a former employee of the County of Mountain View. Mr. Petherick was the Manager for Planning Services with the County and was terminated in March 2011. 3.

Diana Hawryluk- Ms. Hawryluk is the Director of the Planning Department in Regina, Saskatchewan. She left her position as Director of Planning for the County of Mountain View in March of 2011 under the terms of a confidentiality agreement. [ 9 ] In addition to the above, numerous exhibits were tendered during the questioning of the above individuals, and were provided on the application. III. Background Facts [ 10 ] Neuroese is an experienced real estate developer. Mr.

Styles, in his Affidavit, attested that he has operated in the business of real estate development for over 45 years and has worked on developing residential, commercial and industrial subdivisions in Alberta and the United States. [ 11 ] Beginning in October 2006, Neuroese began to purchase lands in the County of Mountain View. By February 8, 2008,

Neuroese had purchased five agricultural quarter sections of land within an area of the County of Mountain View referred to as Netook Crossing. Neuroese purchased its last land for its project in July 2010. By this time, Neuroese owned approximately 625 acres within five quarter sections located east of the Town of Olds, in Netook Crossing. [ 12 ] It was Neuroese’s intention to develop these lands for commercial, industrial, recreational and residential purposes. [ 13 ] Neuroese began to acquire the lands because, Mr.

Styles was of the view that the then, Mountain View County Council “...made it clear that Mountain View’s intention was to greatly increase density targets and build services in the Netook Crossing area in order to encourage growth and development.” [ 14 ] In this regard, on March 14, 2007, Mountain View County Council passed Bylaw No. 01/07/-Highway 2/27 Area Structure Plan.

The bylaw observed that the County Council “...has the authority to prepare and adopt an Area Structure Plan describing the land uses proposed for the Area Structure Plan, the sequence of development proposed , the land uses proposed , the population density proposed , the major transportation routes and public utilities proposed , and such other things Council considers necessary for the area, so that future development maybe organized and implemented having regard for the requirements for this plan...”[emphasis added]. [ 15 ] This Area Structure Plan, amongst other things, increased proposed residential density in some areas of Netook Crossing, and spoke to required water and sewer services. [ 16 ] In October 2007, the County passed the 2007 Municipal Development Plan- Bylaw No. 17/07, which set out Residential Land Use Policies.

In particular the Municipal Development Plan (“MDP”) spoke to low density rural residential development, high density rural residential development, which meant 6-80 lots per quarter sections, and density bonusing. Density bonusing spoke to increasing the density above 80 lots to a maximum of 240 lots per quarter section. [ 17 ] After Neuroese purchased its initial lands, it began to prepare a Concept Plan for the Netook Crossing area.

In the fall of 2008, Neuroese submitted a redesignation application and a subdivision application to Mountain View County respecting some of its land in Netook Crossing. [ 18 ] On March 3, 2010, Mountain View Council was asked to pass Bylaw No. 01/10 which adopted the Netook Crossing North Concept Plan, as well as Bylaw No. LU04/10 which redesignated some of Neuroese’s land.

The Concept Plan was consistent with the Highway 2-27 Area Structure Plan and the Municipal Development Plan. [ 19 ] The request for the decision prepared for this Council meeting stated: BACKGROUND/PROPOSAL Council i s being asked to consider the follow i ng: By l aw No. 01/10 proposes the adoption of the Netook Cross i ng North Concept P l an wh i ch shall prov i de a pol i cy framework to gui de and eval uate future redesi gnati on, subdivision, and development applications wi thin SE 2-33- 1 -5, SW 2-33- 1 -5 P l an 06 1 1 833 B l ock 2 Lot 2, SW 2-33- 1 -5 Plan 06 1 1 832 B l ock 2 Lot 1 SE 3-33- 1 · 5, SE 3- 3 1 -5 P l an 9210118 B l ock A and NW 2-33-1-5 .

The concept p l an affects approx i mately 565 . 38 acres. Secti on 653(4.4b) of the Municipal Government Act allows a munici pality to adopt a conceptual scheme (concept plan) by bylaw.

Part 1 ( 7

b) of the Subdivis i on and Deve l opment Regu l at i ons reduces the referral requ i rements for subd i vis i on appl ic ations where a conceptual scheme has been adopted. Administration recommends the Netook Crossing North Concept Pl an be adopted by bylaw as it. • allows for a public hearing on the concept pl an; • provides clear directi on to future redesignation. subdi vi si on, and development permi t applications; • provi des certainty to resi dents and developers affected within the pl anni ng area; • faci l itates faster subd i vis i on rev i ew due to reduced referral requ i rements. Bylaw No.

LU 0 4 / 1 0 proposes to amend Bylaw 55/95 being the Land Use By l aw, by redes i gnati n g 1 37 . 72 acres/55 . 7 4 hectares with i n the SE 2-33- 1 -5, part of P l an 06 1 1832 B l ock 2 Lot 1 and a part of P l an 0611833 B l ock 2 Lot 2 from Agr i cultural D i str i ct AG to Bus i ness Park District “ BP’ This redes i gnation appl i cation has been filed i n accordance w i th the Netook North Concept P l an and the 2 and 27 Areas Structure P l an. [ 20 ] Other background information provided included:

Application revised from submission: Yes; refinements to land use configuration, roadway alignments and policy framework have been made to the concept plan based on administrative review and public and government consultation. Supportive engineering has undergone peer review and revisions. The proposed redesignation application has been amended to include only the Phase One business park. It is anticipated that redesignation of proposed residential development areas will not be sought until such time as full water/sewer services are available .[Emphasis added.] [ 21 ] Council passed Bylaw No. 0/10 and Bylaw No.

LU-04/10. [ 22 ] All of the lands described in para 20 above were owned by Neuroese. [ 23 ] Mr. Styles explained why Neuroese did not seek redesignation of all of its properties at this time at paras 37 and 38 of his affidavit sworn March 18, 2014: In large development projects of this nature, it has been my experience that an effective and efficient developer would typically not seek full redesignation and subdivision approval of an entire project all at once, unless there was a compelling reason to do so. This is because redesignation and subdivision approval brings with it a number of tax consequences.

In my experience, a developer generally phases in their project over a number of years and only seeks redesignation and subdivision approval as required prior to commencing development on a new phase to begin the actual physical improvements. In the case of the Neuroese Project at Netook Crossing, there was no compelling reason in April of 2010 to seek a complete redesignation and subdivision approval for all of the intended phases that would be developed on the Lands.

In deciding to defer the redesignation and subdivision approval for the remaining Lands in 2010, Neuroese was confident that the remaining land development phases would be approved in reliance upon the unanimous MVC support for the Conceptual Plan, the strong MVPD support as demonstrated by the Request for Decision, the MVPD Recommendation , all the previous statements and representations from Reeve Kemmere and other Mountain View representatives, and the approval of the Concept Plan Bylaw, the Land Use Bylaw and the Phase 1 Subdivision (collectively, the "Approval Representations") [ 24 ] However, by this time in Mountain View County, a group of individuals named the Rural Roots Association had formed.

Two of its founders were the Defendants, Mr. Good and Mr. Munro. [ 25 ] The group, amongst other things, was opposed to high density residential development in MVC. Mr. Rusling stated in his affidavit that the Rural Roots Association’s activities were “widely publicized and known throughout the County” prior to October 2010. [ 26 ] On October 18, 2010, the election for Councillors was held in Mountain View County. Of the seven Councillors elected, six were new Councillors. Two of the six new Councillors were Mr. Munro and Mr. Good. Only Mr. Kemmere was returned to office. [ 27 ] Mr.

Good testified respecting how he came to run in the election and what he saw as his mandate: … before we were elected – well, let me back up. Initially, my worst nightmare was having to run. I have had several conversations with my Councillor at the time one day to try to convince her to listen to the majority of the people and do that thing. So it was unfortunate that I had to – felt I had to run.

I didn’t want to, but when it was clear after our Rural Roots meetings that the majority of the people were thinking the same things we were and wanted to literally turn the County around and head in a different direction – the opposite direction, I might add – it was – it was clear I had to run. So we made that decision, and then, at that point it wasn’t if we went – won the election. We knew we were going to win, because there was such a small percentage of people that agreed with the previous counsel. Like, 2 percent may be. So that did come to light in the election. All of us won with huge margins.

There were very few close races, and it was – before we were elected, it was like, well, we’ve got to have a plan what we’re going to do if we get in… … Q … When you were campaigning to be elected in 2010, was the vision established for the County through the… 2007 municipal development plan an election issue? A Absolutely. Most people didn’t realize where we were being taken as a County, and once that information was brought forward, that’s why the big up- swell of concerned people on the meetings Rural Roots had.

And as a Councillor, I ran on that platform, that the majority of the people’s views would be represented by me, and I wouldn’t put my own views forward, but I would put their views forward. Q And you recall if the vision set out in the 2007 MDP was an issue countywide during that election? A Oh, absolutely. From one end to the other. [ 28 ] Mr. Munro also testified that the potential for high-density residential development and the density of such development was the main election issue.

In addition, he testified regarding his view of his role as a Councillor: … When I got on council,… I no longer had an opinion. I had no opinion. We said time and time again, if the people in our County

wanted the entire County paved, that’s what we would have. If they want two-acre – or if they wanted residential lots the same size as in towns, if we would have got the information that said that’s what they wanted, that’s what we would have done. So I have no opinion. That was very clear in our council. We truly – with as much dedication as we could, we asked the public for their comments, and we came up with the municipal development plan that, to the best of our ability, reflected their views.

Now, there is going to be – there is people, if you just go up a little farther:(as read) This is far too dense of development. Unless the area is non-farmable, it should not be developed. It goes from one extreme to the other, and that’s what we had to deal with every day… We have some people that are saying, Quarter- lot sizes everywhere, and we have other people saying, None. We had to gather the information. Council had to come up with a consensus on what would actually work for that – – you know, to satisfy the most amount of people in our County.

That’s a democracy. [ 29 ] The Mountain View Gazette reported on November 2, 2010 that: [O] Ne one day after being sworn in, Mountain View County’s new elected council terminated …[the] Chief Administrator Officer. The 6-1 vote to fire the CAO- with only… counc. Al Kemmere opposed… when asked what grounds the CAO was being fired, reeve Paddy Munro directed the Gazette to a press release stating that… [the CAO] was terminated because council “ was of the view that the county administration required a change of direction and a fresh leadership approach.” [ 30 ] In November 2010, Council suspended the operation of

section 3.3.3 of the MDP which permitted low density rural residential development outside of “growth areas”. [ 31 ] In January 2011, the Mountain View Council began a new MDP review process. Mr.

Rusling described it as follows in his affidavit sworn September 25, 2013: In 2011 the County began a lengthy consultation process with respect to the creation of a new Municipal Development Plan (the “New MDP"), which included roundtable sessions, Councillor open houses, mail-out and telephone surveys, Council workshop and strategy sessions, the circulation of a draft Municipal Development Plan, additional publically advertised open houses, and feedback questionnaires .

The consultation process continued until June, 2012. [Emphasis added] [ 32 ] Neuroese’s Amended Statement of Claim at para 37 sets out a chronology of the “initial extensive public consultation “respecting the review of the MDP: (

a) a workshop was held by the New Council to review the MDP on December 14, 2010; (

b) a further workshop was held by the New Council to review the MDP on January 7, 2011; (

c) public round table sessions were held by the New Council to review the MDP on January 25, January 26, February 1 and February 2, 2011; (

d) a further workshop was held by the New Council to review the MDP on February 18, 2011; (

e) each New Council member participated in a public open house, which were held on March 24, March 30, April 7, April 11, April 13, April 18 and April 21, 2011; (

f) a mail-out/online survey was conducted in April and May, 2011; (

g) a further workshop was held by the New Council to review the MDP on May 24, 2011; (

h) a telephone survey was conducted in June, 2011; (

i) public open houses were held on November 29, December 2, December 6 and December 8, 2011, at which was presented and discussed an initial draft of a revised municipal development plan, plus a

summary of the proposed changes in such initial draft; (

j) the Mountain View Policies and Priorities Committee, comprised of all of the Councillors of the New Council, held public meetings on February 8, March 27, April 18 and May 9, 2012 to review and discuss firstly, the initial draft of a revised municipal development plan that had been presented at the public open houses held in November and December, 2011, and then subsequent amendments to such initial draft. [ 33 ] The results of the public consultations were provided to Council. [ 34 ] In November 2011, Neuroese made application for redesignation of approximately 414 acres of its property from agriculture to a combination of residential and commercial, and subdivision, seeking to obtain approval for density bonusing for approximately 276 acres.

Neuroese’s planning consultant was advised by Mr. Rusling that: Greg, we talked this morning that Council has suspended one

section (3.3.3) of the MDP and is not accepting new applications for low density residential clusters. This is because of the MDP review underway. Your application is inside a growth centre and is not subject to this suspension. Ultimately Council will decide on how to proceed with your application, but I want you to know that tabling it until the MDP and ASP review is completed is one option. I want you and your clients to know that if you do proceed with a sub division application, significant fees will be involved and the application could be tabled for a length of time.

Again, it will be Council that will decide on how this will move forward. [ 35 ] On November 18, 2011, Neuroese’s planning consultant advised MVC that it intended to proceed with its applications for redesignation and subdivision.

[ 36 ] Tracey Connatty of MVC’s Planning and Development Department was assigned to the applications. [ 37 ] On November 29, 2011, the County circulated the applications to adjacent land owners and agencies including Alberta Transportation as required by the Subdivision and Development Regulation, A.R. 43/2002. [ 38 ] On January 4, 2012, MVC received a letter from Alberta Transportation which stated that they did not recommend approval of the proposed redesignation, subdivision and concept plan on the basis that a traffic impact assessment was required. [ 39 ] On January 5, 2012, Mr.

Rusling answered a number of questions from Neuroese’s planning consultant, including the following: MDP Planning Process 1. There are presently no provisions in the draft Plan that deal with transitional issues . As you know, this issue has been raised at the open houses and will be part of the information Council considers. As the draft Plan is presently worded, ASP's and other policy documents presently in effect will have to conform to the new Plan (MOA

Section 638)… Area Structure and Area Redevelopment Plan Policies 1. It is premature to speculate how your Concept Plan will be handled. Council will give consideration to amending statutory plans to ensure that are consistent with the new MDP.

As you know, this consistency is the requirement of the Municipal Government Act (Section 638). [ 40 ] On January 9, 2012, MVC received a second letter from Alberta Transportation which stated Alberta Transportation was to review the traffic impact assessment submitted with the redesignation application and was sending it to Edmonton for the review. [ 41 ] During the balance of January and beginning of February, Neuroese’s planning consultant and Mr. Rusling corresponded with respect to the redesignation and subdivision applications. [ 42 ] On March 7, 2012, Ms.

Connatty wrote to Alberta Transportation asking for the status of the traffic impact assessment in relation to the redesignation and subdivision applications. The next day, Alberta Transportation responded and said that no comments had been received from the Edmonton office at that time. On March 16, 2012, Alberta Transportation advised MVC that it still had not received any comments on the traffic impact assessment. [ 43 ] Ms. Connatty again contacted Alberta Transportation on April 23, 2012, for an update at which time she was advised MVC would have a reply within a week.

On April 25, 2012, Alberta Transportation provided its response indicating it accepted the traffic impact assessment in principle in relation to the redesignation and subdivision applications. [ 44 ] On May 9, 2012, the Policies and Priorities Committee of Council (a committee composed of all Councillors) met. At the meeting, Neuroese’s planning consultant presented the following information to the Committee on behalf of the Plaintiffs regarding the new MDP (see Amended Statement of Claim at para 53): (

a) the Plaintiffs were then pursuing the approval of a land use redesignation application for the Netook Crossing North development with the Mountain View Planning Department for, among other things a residential development on approximately 276 acres of an intended 431 lots of 1 /4 acre size; (

b) there was expected to be, according to a financial impact analysis commissioned by the Plaintiffs (the "Financial Impact Analysis"), a net cash flow to Mountain View of approximately $17 Million over the next 20 years flowing from the Plaintiffs' Netook Crossing North development; (

c) to be financially viable, the Plaintiffs' proposed funding of ultimate piped water and sewer servicing required the density previously approved by Mountain View in the 2007 MDP and ASP, as well as the 2010 Concept Plan of 240 lots per quarter

section of 1/4 acre size; (

d) the development of the high value commercial and industrial portion of the Netook Crossing Project was directly tied to, and contingent upon, the residential development density of 240 lots per quarter

section of 1/4 acre size; (

e) a proposed staged and interim servicing strategy for water and sewer servicing, costing the Plaintiffs approximately $7 Million. would be borne solely by the Plaintiffs (the "Staged and Interim Servicing Strategy"); (

f) the lower density of 60 lots per quarter

section proposed in the April 18 Amendments to the Initial Draft MDP and incorporated into the May 9 Draft MDP, would not financially support or cover the costs of the ultimate piped water and sewer servicing that formed part of the Plaintiffs' Staged and Interim Servicing Strategy ; (

g) public and stakeholder consultation was necessary to address the Special Policy Area concept and provisions introduced for the first time in the April 18 Amendments.[emphasis added] [ 45 ] At the conclusion of the meeting, the Committee directed that the draft of the new MDP bylaw be taken to the Council meeting set for May 16, 2012. [ 46 ] On May 11, 2012, Ms. Connatty began to draft a Request for Decision (“RFD”) and draft bylaw for Council in relation to Neuroese’s redesignation and subdivision applications, for consideration at first reading by Council. [ 47 ] On May 16, 2012, the first reading of the new MDP took place. It provided for 80 lots per quarter

section in the 2-27 area, which included Neuroese’s lands, but did not permit interim servicing of the lots.

[ 48 ] On May 25, 2012, Ms. Connatty completed the RFD for Neuroese’s subdivision and redesignation applications; the RFD recommended Council give first reading to the bylaw but table public hearing until the new MDP process was completed. This RFD was reviewed by Mr. Rusling. [ 49 ] On May 28, 2012, MVC provided Neuroese with tentative Council dates for first reading and public hearings with respect to its applications. [ 50 ] The following email exchange took place on May 30 and May 31, 2012, between Neuroese’s planning consultant, Mr. Petherick, and Ms.

Connatty: Nathan Petherick- 5/30/2012 8:50 am Good Morning Tracey; On behalf of Greg Brown I am following up on the above referenced correspondence. We have received your correspondence on the above referenced files that these have been assigned to a Council meeting of June 6, 2012 and July 18, 2012. As part of the processing of these applications, would you be able to advise us as per the department’s assessment and recommendation on these files prior to consideration of first reading.

Based on a review of our file records, we have not received a response from the County to our correspondence as follows: File PLRDSD20113012- February 9, 2012 Request for confirmation as per requirement and rational for TIA based on intensity of subdivision proposed. Request for clarification from SRD Water Boundaries Unit once provided to MVC. File PLRDSD2011309- February 9, 2012 Request for comments from recirculation of TIA to AT have not been received and/or forwarded by MVC. If you could please let us know the department assessment and recommendation on these applications that would be greatly appreciated.

Tracey Connatty- Sent: May- 30-12 9:23 am Good Morning Nathan; The department assessment and recommendation has not been finalized at this time. Please find attached correspondence as per your request. Nathan Petherick- 5/30/2012 9:29 am Ok, thanks for this information. We would request that you please inform us as soon as the department’s assessment and recommendation is finalized so that we may respond appropriately. Tracey Connatty- Sent: May- 30-12 9:40 am Hi Nathan, Am I to understand that Brown & Associates has reservations with proceeding to first reading for these files?

Please advise me on the next steps request from Brown & Associates. Nathan Petherick- 05/30/2012 9:43 am Tracey, prior to having these files assigned to Council, we would like to know the department’s assessment and recommendation on each of these applications. This would allow us time to appropriately respond and address any issues/concerns raised in an effort to potentially remedy any items of concern. Our preference would be that these files are not assigned to first reading and a public hearing until this has been undertaken.

Tracey Connatty- Sent: May- 29-12 11:09 am Hi Nathan, Our assessment is typically done for Council and the Public Hearing. We are not in a position at this time to know the final assessment. Do you want this pulled from the June 6, 2012 agenda? Nathan Petherick- 5/30/2012 11:16 am Ok, so for clarification- no assessment will be provided by the County to the landowner/applicant in advance of the planning application being assigned to Council so that any issues arising from a department review/analysis can be addressed?

Once we are clear on this point, we can discuss with the landowners and respond to your query below regarding the assignment of the applications to the agenda. It is important that we have clarity on this matter as this approach would represent a fundamental departure from how previous applications in regards to Netook and other applications have been handled. Tracey Connatty- Sent: May 30-12 2:22 pm

Hi Nathan, In an earlier email you asked for the department’s assessment and recommendation regarding each of the applications. We are happy to meet and provide our initial comments and those from the circulation agencies. However our recommendations are for Council and the Public Hearing. Our final assessment and recommendations are not known until then. Nathan Petherick- 5/30/2012 2:28 pm Tracey, thanks for taking the time to get back to me.

Based on this response we would request that all the initial comments on each of these applications is provided in writing so that we may review and consider these with our ownership group. Upon receipt we would then be in a position to arrange a review meeting to discuss the County's initial comments and the best way to move each of these applications forward. As such, we do not feel it is appropriate at this time to assign the files to first reading and a public hearing until we have received, reviewed, discussed and responded to the initial comments from the County as referenced below.

Tracey Connatty- Sent: May 31-12 11:53 pm Good Morning Nathan, As per your request below, the items related to these applications have been removed from the June 6, 2012 agenda. The Department is working on initial comments regarding these files. Once these comments are complete they will be forwarded for review. Nathan Petherick- Sent: May-31-12 12:05 pm Ok, thanks for the update. [ 51 ] Mr.

Rusling stated in his affidavit that “throughout June and July, 2012, the County’s Planning and Development Department undertook further reviews of the applications.” On July 9, 2012, the County provided preliminary comments on the applications to Neuroese’s planning consultant. [ 52 ] During this same time period, two public hearings were held regarding the draft MDP on June 27, 2012 and July 4, 2012. The Plaintiffs, through its planning consultant and Mr.

Styles, made presentations at the public hearings respecting its views of the draft MDP and views of other landowners. [ 53 ] Also during this time, the MVC considered issues raised by the town of Olds and the town of Sundre regarding the draft MDP. [ 54 ] At the conclusion of the July 4, 2012, public hearing respecting the draft MDP, Councillor Kemmer moved that the CAO bring back the new MDP with the changes recommended by administration to the regular council meeting set for July 18, 2012. [ 55 ] On July 18, 2012, second and third readings were given to the new Municipal Development Plan, Bylaw No. 11/12 – Municipal Development Plan Bylaw Amendment.

The amended MDP permitted residential density development to 80 lots per quarter and required developers to service the lots in the area where the Plaintiffs’ lands were situated. [ 56 ] On July 26, 2012, Mr. Rusling advised Neuroese’s planning consultant by letter of the following: Re: Your letter of July 16, 2012 Thank you for your letter of July 16 th responding to our earlier correspondence. You have asked for clarification as to whether your planning applications will be evaluated under the planning framework in place on the date they were submitted.

Our position is that applications will be evaluated under the Bylaws in effect on the date that decisions are made. You are aware that Council has recently adopted the new Municipal Development Plan. This Bylaw will be one that is considered in the evaluation of your applications. Please feel free to call me at 403-335-3311 extension 166 should you wish to discuss this further. Yours Truly, John Rusling, Director [ 57 ] On October 3, 2012, Council passed Bylaw No. 15/12 which amended 2x27 Area Structure Plan Bylaw and repealed the Netook Concept Plan Bylaw. Mr.

Kemmer testified regarding events that led to the repeal of the Concept Plan: Well, the discussion took place throughout the whole repeal process because council had approved the municipal development plan, and it was my position that we needed to sit down with the developers and see if there were ways that we can make their plan fit within the new MDP.

And there’s actually a segment, I believe, that bases that in the new MDP under the special area… area of special development, but I was – I was the only one on council that – that did want to go that way, and so I actually asked for a recorded vote on that one, because I believe strongly that we should go back now that the MDP’s in place and see what we can do to bring things together; the council, you know, it was a six-to-one vote. So it was council’s voice that prevails. [ 58 ] Mr.

Kemmer also testified that he voted in support of the by-law “…but I need to clarify: in both cases there were items in the bylaws that I wasn’t 100 percent in support of, but when it comes to these kinds of documents, when you have a committee of people creating a – there’s give and take has to take place, and so I still voted for both of them because I believed it was for the best interest of the county based on the public involvement that took place at the time and some of my beliefs.”

[ 59 ] The Plaintiffs subsequently commenced two actions against the County: 1. A judicial review of the County’s decision which was subsequently abandoned; and 2. this action against the County and two of its councillors respecting the amendment to the MDP and the process respecting its redesignation application. IV. Reasons of the Master [ 60 ] The County and Defendant councillors moved for

summary dismissal of the claim against them. The Master determined that the case could be fairly decided on the record before the court.

The Master concluded that the “ ‘story’ of what happened with these developers in their dealings with the County does not contain any element of uncertainty which would require a trial to resolve.” [ 61 ] The Master’s conclusions were summarized at paras 16-23 of Neufeld v Mountain View (County) , 2014 ABQB 443 : The developers relied on previous land planning bylaws, went ahead with a development, and were prevented from completing that development due to a bona fide change in land planning bylaws.

The law is clear, and the developers acknowledge, that the County was entitled to review its land planning bylaws and make a bona fide change to those bylaws, and to hold in abeyance outstanding applications until that review had been completed. On close analysis, there are only two possible complaints about the bona fides of the process which led to the rejection of the developers' redesignation applications. First, the voluntary review process undertaken by the County, and in particular, the surveys associated with that process, are arguably deficient.

Carelessness with respect to those surveys does not amount to mala fides. Secondly, there is an arguable case that the developers' redesignation applications may have been slowed and the changes to the MDP accelerated, so that the new MDP was in force when the decision was made on the redesignation applications. However, documents created contemporaneously disclose that, had the developers' redesignation applications come forward earlier than the changes to the MDP, the redesignation applications would simply have been tabled; something that the County was lawfully entitled to do.

Finally, I find that sophisticated developers like the Plaintiffs would be well aware that, until a development reaches at least the stage where the land in question has been rezoned, it is always possible that a change will be made in land planning bylaws which will not allow the development to proceed as planned. Developer cannot acknowledge that the law allows a new council to change zoning bylaws, but then sue the municipality based on statements made by the previous council in favour of the old planning bylaws that had been enacted by the previous council.

If this matter went to trial, the developers could only succeed if they overcame the presumption that the County's decisions were bona fide: Virdis v. North Vancouver (City ), 2009 BCSC 1118 , 2009 CarswellBC 2168 at para 43 . It is plain and obvious that they will not succeed. In my view the defendants have met the onus which rests on them to establish that there is no triable issue. V. Positions of the Parties [ 62 ] The Plaintiffs submit that Master Prowse’s decision for

summary judgment should be overturned. Neuroese’s claims include bad faith, abuse of public office and misrepresentation respecting the delay, interference and obstruction in the processing of the redesignation and subdivision applications as part of the development of a residential and commercial subdivision in the County of Mountain View. [ 63 ] The Defendants submit that Master Prowse’s decision was correct and the Plaintiff’s claim should be summarily dismissed.

The Defendants submit that municipal councils are required to take into account and attempt to balance, multiple and potentially conflicting interests in ascertaining and promoting the interests of the municipality. Judicial intervention is only warranted where there is evidence of bad faith. [ 64 ] Furthermore, there is no evidence which supports the Plaintiffs’ allegations of delay and acceleration, or from which such inferences should be drawn. None of the evidence supports a finding of bad faith. VI.

Standard of Review [ 65 ] An appeal from a Master is de novo and the standard of review on all issues is correctness. As such, no deference is owed. For example, I am not bound by any finding of fact made by the Master. See Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at paras 3 , 25 – 30; Boyd v Cook , 2013 ABCA 27 at para 24 ; McGowan v Lang , 2015 ABCA 217 at para 32 . VII. The Test for

Summary Judgment [ 66 ] Rule 7.3 of the Alberta Rules of Court allows a court to grant

summary judgment where there is “no merit” to a claim or defence. The test for

summary judgment was set out in Amack v Wishhewan ; Amack v AW Holdings Corp , 2015 ABCA 147 at para 26 :

Rule 7.3(1)(

b) allows a court to grant

summary judgment to a defendant where there is "no merit" to a claim. Where the claim is by aplaintiff, it is referred to as

summary judgment; and where it is by a defendant, it is typically referred to as

summary dismissal. The pointis that for purposes of this Rule,

summary judgment includes

summary dismissal. Following the recent Supreme Court of Canadadecision in Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 [Hryniak], this Court has held that

summary judgment can be granted if adisposition that is fair and just to both parties can be made on the existing record: Windsor v Canadian Pacific Railway Ltd., 2014ABCA 108 at para 13, 572 AR 317 [Windsor]; Maxwell v Wal-Mart, 2014 ABCA 383 at para 12. This does not, however, detract fromthe requirement that there be "no genuine issue for trial": Hryniak, supra at para 34; Windsor, supra at para 13; 776826 Alberta Ltd. vOstrowercha, 2015 ABCA 49 at para 11 [Ostrowercha]; Can v Calgary (Police Service), 2014 ABCA 322 at para 10, 315 CCC (3d)337.

Rather, the two concepts are themselves linked, as noted in Hryniak, supra at para 49: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion forsummary judgment.

This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows thejudge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [67] In Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc, 2015 ABCA 252 the Court set out the testthis way at para 9: ... the court asks whether there is any issue of merit that genuinely requires a trial or, conversely, whether the claim or defence is socompelling that the likelihood it will succeed is very high such that it should be determined summarily.

A second consideration iswhether examination of the existing record can lead to an adjudication and disposition that is fair and just to both parties. See generally W.P. v Alberta, 2014 ABCA 404 at para 26, 7 Alta LR (6 th) 319; Windsor v CPR, 2014 ABCA 108 at para 16, 572 AR 317. [68] The phrase “no merit” is defined in 776826 Alberta Ltd. (c.o.b.

Budweiser Motorsports Park) v Ostrowercha, 2015 ABCA 49at paras 10 and 11: ... even assuming the accuracy of the position of the non-moving party as to any material and potentially decisive matters -- matterswhich would usually require ordinary forensic testing through a trial procedure with viva voce evidence and which could not be resolvedthrough the fair and just alternative -- the non-moving party's position viewed in the round has no merit in law or in fact. ... in order for the non-moving party's case to have merit, there must be a genuine issue of a potentially decisive material fact in the casewhich cannot be summarily found against the non-moving party on the record revealed by the "fair and just process".

The mere assertionof a position by the non-moving party in a pleading or otherwise, or the mere hope of the non-moving party that something will turn upat a trial, does not suffice. [69] Factual disputes in the affidavit evidence do not necessarily mean

summary judgment cannot be granted. As observed inCondominium Corp. No. 0321365 v Cuthbert 2016 ABCA 46 at para 28:

Summary judgment is not possible if opposing parties' affidavits and evidence conflict on material facts because a chambers judge cannotweigh evidence or credibility on a

summary judgment application: Sherwood Steel at paras 7-8; Whitecourt at paras 31, 40-41. [70] In a

summary judgment application the chamber’s judge role is not to weigh the evidence or assess credibility. VIII. The Municipal Government Act [71] This matter requires an understanding of the legislative framework within which all municipalities in Alberta operate, and inparticular, planning and development. [72] Prior to setting out the relevant aspects of the legislative framework, one over- arching municipal law principle must bediscussed: a municipal council does not have the authority to fetter the ability of a future council to exercise its legislative power.

Thislegislative proposition was restated in Pacific National Investments Ltd. v Victoria (City), 2000 SCC 64 , [2000] 2 SCR 919.The facts in Pacific National Investments are not dissimilar to this case, albeit the claim in Pacific National Investments was in contractand the claims here are in tort. [73] In the course of development of an area of land located around Victoria’s Inner Harbour, the city granted subdivision andrezoning; the rezoning permitted three story structures with mixed commercial and residential use on two of the lots. The initialdevelopment did not proceed on these two lots.

Rather, as observed by the Court at paras 7 and 8: In any case, the initial development by PNI did not take place on Lots 3 and 4. It began with landscaping of the parks and the otherservicing work that it had to do to fulfill its obligations. It constructed condominiums on the south half of Lot 2 and began developmenton Lots 1 and 5, the other upland lots. No buildings were put up on the water lots.

Through the sale of Lots 1 and 5 and the developedhalf of Lot 2, the trial judge found, at para. 41, that PNI recovered about $7 million compared to its costs for all the Phase II lands of $5million; in other words, with land remaining to sell, PNI already had a 40 percent profit. PNI’s development of residential property amid landscaped parks and near the newly constructed seawall resulted in the creation of apeaceful, tranquil setting.

Residents and visitors would frolic in the parks and might stroll along the seawall to watch the sunset. [74] Approximately five years after the developer purchased the lands, it presented its design for the remaining two lots. The Courtexplained at para 10: As the public became aware of these plans that would transform the harbour front as they now knew it, they began to express theirdiscontent.

They voiced their concerns to their elected representatives on the City Council, and all but one member of the Council votedon August 26, 1993 to rezone the water lots so as to prevent additional residential development on them and so as to limit buildings on

these lots to one storey in height. In implementing new limits, the Council asserted that it was trying to strike a balance appropriate tothe values and interests of the community in 1993 and that, in so doing, it was not bound by the zoning adopted by a previous council. [75] The developer then sued for breach of contract.

The Court noted at para 33 that “Municipal governments are democraticinstitutions through which the people of a community embark upon and structure a life together.” [76] In addresses the specific issue of fettering, the Court observed as follows at paras 55-56: As the authorities make clear, a limitation on a municipality’s legislative power is a very serious matter.

As Rogers, The Law ofCanadian Municipal Corporations, supra, puts it at para. 199.4, “Unless expressly authorized to do so local authorities have no power toenter into an agreement the effect of which will be to restrict or divest the legislative powers of succeeding councils in respect of anymatter affecting the public at large.” Rogers goes on to note that this does not mean that a council acting in its proprietary or businesscapacity cannot make contracts. But it does mean that a council cannot somehow give up its legislative powers: cf. Birkdale DistrictElectric Supply Co. v.

Corporation of Southport, [1926] A.C. 355 (H.L.), at pp. 364 and 371-72. Eloquent echoes of this principle have rung out through Canadian case law: Our municipal councils are just as truly legislative bodies within the ambit of their jurisdiction as Parliament or the Legislature; and anycontract which would interfere with the due exercise of the discretion and judgment of a member of such a council must equally be voidas against public policy. (Town of Eastview v.

Roman Catholic Episcopal Corporation of Ottawa (1918), (ON CA), 44 O.L.R. 284 (S.C., App.Div.), at pp. 297-98 [M]unicipalities must be free to amend or alter their by-laws as circumstances dictate. They cannot bind themselves or their successorsby contract with a third party to the status quo. (Capital Regional District v. District of Saanich (1980), (BC SC), 115 D.L.R. (3d) 596 (B.C.S.C.), at p. 605 [A] municipality cannot bargain away its legislative powers in advance. (Re Galt-Canadian Woodworking Machinery Ltd. and City of Cambridge (1982), (ON CA), 135 D.L.R. (3d) 58 (Ont.Div.

Ct.), at p. 63, aff’d (1983), (ON CA), 146 D.L.R. (3d) 768 (Ont. C.A.)) Municipal legislative powers are an integral part of governance that municipalities cannot give up. Municipal councils cannot fetter thediscretion of successor councils to engage in the legislative process without undue influences. [77] The Court also addressed the public policy considerations of its decision at paras 67-71: I wish to add a brief word as to public policy considerations since a good deal of debate in this case has been related to policy issues.

Tosome, it will seem like a harsh result to say that PNI cannot sue the City for departing from some alleged understanding and withdrawingits consideration after the construction of costly improvements by PNI. Indeed, some would properly argue that there are policy reasonsfor allowing municipalities to derive the benefits of a fuller capacity to contract that would enable them to engage developers on a long-term basis with more certainty. This capacity would presumably help reduce the risk premiums that developers might otherwise require.

But these considerations are not conclusive and should in no way alter the result. First, the result is not as harsh as it might initially seem because those in the business know that dealing with a municipal government isdifferent from dealing with a purely private corporation. For example, no indoor management rule protects someone dealing with amunicipality from having to ensure that proper procedures were followed with respect to the contract, which is quite different from thesituation with a private corporation: Rogers, The Law of Canadian Municipal Corporations, supra, at para. 199.1.

The record shows thatas an experienced developer, PNI was aware of the special legal and political risks attendant on dealing with a municipality. Developerschoose to undertake those risks. Moreover, municipalities will be bound by their business contracts. They will not be free to break them on a whim. They will have topay compensation to the other party barring an express statutory provision denying any form of compensation or damages.

On the otherhand, contracts concerning the exercise of legislative powers involve other legal rules and policy considerations, as appears from thediscussion above of the rules against direct and indirect fettering of municipal authority. Second, municipalities do not become free to break non-contractual understandings based on mere whim. First, there remain legalprotections against a municipality that acts in bad faith. In addition, as R. W. Macaulay and R. G.

Doumani put it in Ontario LandDevelopment: Legislation and Practice (loose-leaf), vol. 1, at p. 4-119, para. 18.8, a major component of development and redevelopmentprojects is “a great deal of faith and trust between the public and private sectors of the region” (emphasis added). Municipalities thatdeal with developers in a manner that does not reflect principles of faith and trust when they are not contractually bound may well facenon-contractual consequences such as developers being less willing to deal with the municipality without significantly higher riskpremiums.

Third, a very important policy consideration militates against municipalities being bound in ways that constrain their legislative powers. This is the policy consideration that runs through the jurisprudence in this area. Municipal governments are governments exercisingpowers delegated by the provincial legislatures, and they must be able to govern based on the best interests of their residents and basedon conceptions of the public good.

To help protect this important value, our Court has adopted such principles as the one thatambiguities in municipal government statutes are to be interpreted so as to favour the citizens and their ability to undertake a path ofshared self-governance (Shell, supra, at p. 277). Although there can be arguments for each kind of public policy as to whethermunicipalities should be able to bind themselves on zoning matters, there is certainly nothing irrational about preventing municipalitiesfrom restraining themselves in striving for the public good in the future. There is no doubt in my mind that British Columbia’s

legislators, carefully balancing many competing interests and considerations, had chosen this latter public policy at the pertinent time. [ 78 ] I find the same policy considerations apply to the case at bar. [ 79 ] Counsel for the County described the Municipal Government Act (“MGA”) in their Brief as providing “a governance model for municipalities and sets out how municipalities operate, the functioning of municipal councils, and how members of the public interact with their municipalities. The MGA also provides a framework for planning and development.” at para 14. [ 80 ] I accept this description. [ 81 ]

Section 3 of the MGA sets out the three purposes of a municipality: 1. to provide good government; 2. to provide services, facilities or other things that, in the opinion of council are necessary or desirable for all or part of a municipality; and 3. to develop and maintain safe and viable communities. [ 82 ]

Part 5 of the MGA deal with Councils, Councillors and Council Committees. [ 83 ]

Section 142 provides that each municipality is governed by a Council. Duties of councillors are statutorily described in

Section 153 which states: Councillors have the following duties: (

a) to consider the welfare and interests of the municipality as a whole and to bring to council’s attention anything that would promote the welfare or interests of the municipality; (

b) to participate generally in developing and evaluating the policies and programs of the municipality; (

c) to participate in council meetings and council committee meetings and meetings of other bodies to which they are appointed by the council; (

d) to obtain information about the operation or administration of the municipality from the chief administrative officer or a person designated by the chief administrative officer; (

e) to keep in confidence matters discussed in private at a council or council committee meeting until discussed at a meeting held in public; (

f) to perform any other duty or function imposed on councillors by this or any other enactment or by the council. [ 84 ] In Entreprises Sibeca Inc v Frelighsburg (Municipality ) , 2004 SCC 61 , the Supreme Court observed at paras 24-25 that elected bodies must have considerable latitude in fulfilling their duties. [ 85 ] Division 8 of

Part 5 sets out how Councils may act including the following: 1. A council may only act by resolution or by law -

Section 180; 2. No bylaw or resolution is valid unless passed at a public council meeting where there is a quorum -

Section 181; 3. Each councillor has one vote -

Section 182; and 4. Councils must conduct their meeting in public; however, a meeting maybe closed if the matter to be discussed falls with two exceptions -

Section 197. [ 86 ]

Section 230 also provides when a council is required to hold a public hearing and how the hearings are to be conducted. [ 87 ]

Part 17 of the MGA speaks to Planning and Development.

Section 617 defines the purpose of this part: The purpose of this Part and the regulations and bylaws under this

Part is to provide means whereby plans and related matters may be prepared and adopted (

a) to achieve the orderly, economical and beneficial development, use of land and patterns of human settlement, and (

b) to maintain and improve the quality of the physical environment within which patterns of human settlement are situated in Alberta, without infringing on the rights of individuals for any public interest except to the extent that is necessary for the overall greater public interest. [ 88 ] Counsel for Mountain View County stated at para 19 of their Brief: The Supreme Court commented on this purpose in an earlier version of the legislation by noting: The legislation had gradually moved away from the situation in which the rights of the property owner were given paramount consideration towards the situation in which planning flexibility and the public interest are given paramountcy.

... These sections indicate that the Alberta legislature has decided that if the rights of individuals and the public conflict, then to the extentnecessary the “greater public interests” must prevail..." [Emphasis added] Hartel Holdings Co. v Calgary (City), (SCC), [1984] 1 SCR 337. SCJ No. 17 [89] Within

Part 17 is a hierarchy of statutory plans. Statutory plans include Municipal Development Plans and Area StructurePlans. That hierarchy of statutory plans is set out in the chart below: Provincial Jurisdiction Municipal Jurisdiction

[ 90 ] In the Hartel decision, the Court observed at 344: Plans are policy documents and set out proposals for future development. They may be subject to review and amendment from time to time as policies and proposals are refined. The land use by-law is the instrument by which the policies are finally implemented. [ 91 ] Mountain View County was required by Section 632(1) of the MGA to have a Municipal Development Plan. [ 92 ]

Section 636 sets out what a municipality must do in preparing a statutory plan. However, Section 636(2) provides that the requirements of 636(1) do not apply to an amendment to a statutory plan. In this case, the MDP Bylaw No. 11/12, the Bylaw which came about as a result of the MDP review process, was an amendment to an existing bylaw. Regardless, MVC held public hearings. [ 93 ] When a public hearing is held,

Section 230 applies:

(1) When this or another enactment requires Council to hold a public hearing on a proposed bylaw or resolution, the public hearing must be held, unless another enactment specifies otherwise, before second reading of the bylaw, or before Council votes on the resolution.

(2) If a public hearing is held on a proposed bylaw or resolution, Council must conduct the public hearing during a regular or special Council meeting.

(3) A Council may by bylaw establish procedures for public hearings.

(4) In the public hearing, Council must hear any person, group of persons, or person representing them, who claims to be affected by the proposed bylaw or resolution and who has complied with the procedures outlined by the Council, and may hear any other person who wishes to make representations and whom the Council agrees to hear.

(5) After considering the representations made to it about a proposed bylaw or resolution at a public hearing and after considering any other matter it considers appropriate, the Council may pass the bylaw or resolution, make any amendment to the bylaw or resolution it considers necessary and proceed to pass it without further advertisement or hearing, or defeat the bylaw or resolution.

(6) The minutes of the Council meeting during which a public hearing is held must record the public hearing to the extent directed by the Council. [ 94 ] Liability is addressed in at least three sections of the MGA-

Section 529, 535, and 621. 529 A municipality that has the discretion to do something is not liable for deciding not to do that thing in good faith or for not doing that thing. 535(1) In this section, “municipal officers” means The chief administrative officer and designated officers, and employees of the municipality; “volunteer worker” means a volunteer member of a fire or ambulance service or emergency measures organization established by a municipality, or any other volunteer performing duties under the direction of a municipality.

(2) Councillors, Council committee members, municipal officers and volunteer workers are not liable for loss or damage caused by anything said or done or omitted to be done in good faith in the performance or intended performance of their functions, duties or powers under this Act or any other enactment. (3) Subsection (2) is not a defence if the cause of action is defamation.

(4) This

section does not affect the legal liability of a municipality.

621(1) Except as provided in this Part and in

section 28 of the Historical Resources Act, nothing in this Part or the regulations or bylawsunder this Part gives a person a right to compensation. (2) Subsection (1) applies only to this Part and does not create, extinguish or affect rights created, extinguished or affected by the restof this Act. [95] In the case at bar, Neuroese submits its applications for redesignation and subdivision, which were filed after the review ofMVC’s existing MDP had begun, but before the amendment to the MDP occurred in July 2012, should have been approved by Council,and submits City of Ottawa v Boyd Builders Ltd., (SCC), [1965] SCR 408 applies. [96] Frederick A.

Laux, QC in his text Planning Law and Practice in Alberta, 3d ed. (looseleaf) (Edmonton: Juriliber Limited,2010) at 12-13 and 12-19, states as follows: Amendments and alterations that govern an application are those in effect on the date the authority renders its decision, and not those inplace on the date of the subdivision application.

Hence, any amendment lawfully made to the instrument between the date of anapplication and the date of the decision may pre-empt any rights the applicant may have had, provided the amendment was made in goodfaith. ... ... an applicant is not necessarily entitled to an approval simply because a proposed subdivision meet minimum or maximum criteria setout in the Regulation or in a land use bylaw... ...

Similarly there may be cases where a proposed subdivision is in complete conformity with existing plans and the land use bylaw, but theplans and bylaw are under review and are likely to be changed so that, in the event that the subdivision had been proposed after thechanges were effected, it would not have conformed. In such a case, the subdivision application may lawfully be refused since orderlyfuture planning is as much of a legitimate objective as is existing planning.

This, of course, is subject to the proviso that the proposedchanges to the existing plans or bylaw are the product of good faith efforts on the part of the relevant planning authorities which areaimed at achieving orderly development in the public interest, and are not motivated by the sole objective of blocking the proposedsubdivision. [97] Neuroese’s application for redesignation required an amendment to an existing bylaw.

Section 230(5) redesignation andSection 654(3) subdivision are both sections of the MGA that permit a council the discretion to approve or refuse the application. [98] The discretionary nature of these decisions differs from a decision with respect to a development permit.

Section 642 of theMGA speaks to an application for a development permit:

(1) When a person applies for a development permit in respect of a development provided for by a land use bylaw pursuant tosection 640(2)(b)(i), the development authority must, if the application otherwise conforms to the land use bylaw, issue a developmentpermit with or without conditions as provided for in the land use bylaw. [Emphasis added]

(2) When a person applies for a development permit in respect of a development that may, in the discretion of a developmentauthority, be permitted pursuant to section 640(2)(b)(ii), the development authority may issue a development permit with or withoutconditions as provided for in the land use bylaw.

(3) A decision of a development authority on an application for a development permit must be in writing, and a copy of it must begiven to the applicant.

(4) If a development authority refuses an application for a development permit, the decision must include the reasons for the refusal. [99] Mr. Laux, QC discusses development permits in his text at

chapter 19 and states at 9-14: The filing of an application for a permit vests no right in the applicant. Thus if a land use amendment rendering the proposeddevelopment non- complying is made to the land use bylaw between the date the application is filed and the date that the decision ismade, the development authority should apply the amendment and reject the application. The general rule is that the law in force at thetime the decision is made is the operative law. That may not, however, be the end of the matter.

An applicant whose permit application has been blocked by an amendment to the landuse bylaw may successfully challenge the validity of the amending bylaw in subsequent judicial review proceedings. This could be doneby bringing an application set aside the amending bylaw on the ground of illegality. Coupled with a mandamus application to compel theissuance of the permit.

The applicant has the onus of establishing that the bylaw was passed for the sole purpose of defeating hisapplication and not in furtherance of any legitimate public planning purpose. [100] I find that the Supreme Court of Canada’s decision in Boyd Builders Ltd., is a decision with respect to a development permitapplication. Therefore, I find Boyd and the cases that interpret it are not applicable to the case before me as this case does not deal with adevelopment permit. IX. Analysis The Plaintiffs’ Claims

[101] I now turn to Neuroese’s Amended Statement of Claim and its bases of liability. The Amended Statement of Claim pleads thefollowing five bases of liability: 1. Conspiracy 2. Misfeasance in public office and bad faith 3. Misrepresentation 4. Negligence 5. Unlawful interference with economic interest [102] In addition, Neuroese relies upon the principle of vicarious liability, respecting the actions of two County employees - Mr.Rusling and Ms.

Connatty. [103] The Plaintiffs claim for damages for loss of profits they would have made had their developments proceeded under the 2007MDP. [104] At para 19 of Neuroese’s Brief of Argument, they state that their claims against the defendants include a claim for bad faith.RVB Managements Ltd. v Rocky Mountain House (Town) 2014 ABQB 51, aff’d 2015 ABCA 188, discussed the issue of bad faith in anaction by a landowner against a municipality. The trial court at paras 104-106 said as follows respecting bad faith: There is no independent cause of action for bad faith: Alberta v.

Elder Advocates of Alberta Society, 2011 SCC 24 (at para 78). Anyliability that may arise in tort when a public authority acts in bad faith does not create a stand-alone action for bad faith. The plaintiffmust first prove that a duty of care was owed to the plaintiff by the pubic authority. [emphasis added] A public authority may be liable in negligence for a legislative, regulatory or quasi-judicial decision made in bad faith.

The concept ofbad faith encompasses not only acts committed deliberately with intent to harm, but also acts that are so inconsistent with the relevantlegislative context that a court cannot reasonably conclude that they were performed in good faith: Entreprises Sibeca Inc v.Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 SCR 304, at para 26. In public regulation there is "no such thing as absolute anduntrammelled 'discretion'; that action can be taken on any ground or for any reason": Roncarelli v. Duplessis, (SCC),[1959] SCR 121 at p 140.

The context of an action determines bad faith's meaning, scope, and character. Bad faith is flexible, and itscontent will vary from one area of law to another: Entreprises Sibeca Inc v. Frelighsburg (Municipality) at para 25. Bad faith may even be inferred from negligent and careless behaviour: Finney v. Barreau du Québec, 2004 SCC 36 at para 42. Publicauthorities should also consider whether they will exercise their discretionary power before deciding not to do so.

Inaction and failure togive proper consideration to a policy decision for improper reasons is "not a policy decision taken in the bona fide exercise ofdiscretion": Kamloops (City) v. Nielsen, (SCC), [1984] 2 SCR 2 at para 35. [105] I accept the above analysis and will not deal with bad faith as a stand-alone claim. I will deal with it in the context of otherclaims. [106] I will review the elements of each tort and the evidence in support of the elements. It is trite law to state that a plaintiff musthave some evidence to support each element of a tort in a

summary dismissal application. 1. The Tort of Civil Conspiracy [107] The tort of civil conspiracy is the conspiracy of two or more to injure a third.

It may be committed in two ways as set out inCanada Cement LaFarge Ltd. v British Columbia Lightweight Aggregate Ltd., (SCC), [1983] 1 SCR 452 at 471-72: Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does notpermit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim againstthem in combination as the tort of conspiracy if: (1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to causeinjury to the plaintiff; or, (2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and thedefendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in theprevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to theplaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff. [108] The first category of the tort- the predominant purpose conspiracy- was recently commented upon in Pro-Sys Consultants Ltd.v Microsoft Corporation, 2013 SCC 57.

The Court stated that predominant purpose conspiracy is made out where the predominantpurpose of the defendant’s conduct is to cause injury to the plaintiff using either lawful or unlawful means, and the plaintiff does in factsuffer loss caused by the defendant’s conduct at para 74. [109] The elements of this form of conspiracy were set out in Shah v LG Chem Ltd., 2015 ONSC 6148 at para 180, leave to appealgranted, 2016 ONSC 4670 (re: certification in a class action proceeding):

The elements of a claim of civil conspiracy are: (1) two or more defendants make an agreement to injure the plaintiff; (2) the defendants:(

a) use some means (lawful or unlawful) for the predominate purpose of injuring the plaintiff, or (

b) use unlawful means with knowledgethat their acts were aimed at the plaintiff and knowing or constructively knowing that their acts would result in injury to the plaintiff; (3)the defendants act in furtherance of their agreement to injure; and, (4) the plaintiff suffers damages as a result of the defendants' conduct:Hunt v. T & N plc, supra; Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., supra; Normart ManagementLtd. v. West Hill Redevelopment Co. (1998), (ON CA), 37 O.R. (3d) 97 (C.A.); Knoch Estate v. John Picken Ltd.(1991), (ON CA), 4 O.R. (3d) 385 (C.A.); Pro-Sys Consultants v.

Microsoft, supra. See also Godfrey v. Sony Corporation, 2016 BCSC 844 at para 91; Watson v. Bank of America, 2015 BCCA 362 at para 125 [110] I begin my assessment of this tort by looking for evidence of an agreement. [111] I note that the Plaintiffs’ claims are based on two propositions they submit arise from the evidence: 1. The Plaintiff’s redesignation and subdivision applications should have been placed before Council sooner than they were;and 2. The MVC Council fast tracked the development of the new MDP.

The new MDP rendered the plaintiff’s pendingredesignation and subdivision applications inconsistent with it and therefore “unpassable”. [112] The Plaintiffs’ proposition appears to be based on the alleged mala fides of two councillors: Mr. Munro and Mr. Good.

There isno suggestion of any mala fides by any of the other five councillors. [113] I take from these propositions that the plaintiffs submit there is evidence that two or more of the defendants made an agreementto injure the plaintiffs by preventing their redesignation application to proceed before the new MDP was passed. [114] I have reviewed the evidence and can find no direct evidence of an agreement between any of the defendants with respect to thePlaintiffs. For example, there is no direct evidence Ms. Connatty ever communicated in any fashion with Mr. Good, Mr.

Munro or Mr.Martins respecting Neuroese’s applications. Ms. Connatty was not involved in the consultation process respecting the new MDP. [115] Mr. Rusling was asked no questions regarding any meetings, communications, etc. with Mr. Good, Mr. Munro or any othercouncillor. He testified in questioning as follows: Q And during this period of time, to whom did you report? A I reported to the CAO, Mr. Martens. Q Did you report to anyone else? A No. Q Within the structure of the County and the planning department, did you take instructions during that time period from anyone else,such as the council?

A No -- Q That is, the council of the County? A The instructions come from -- from Mr. Martens. Of course, when we -- when we prepare planning documents, we work with council,and you could –instruction comes from council in that sense, but from an employee oversight, it's -- it's Mr. Martens. Q And when you say "we work with council" with respect to redesignation and subdivision applications, in what way did you work withcouncil? A Well, I was referring there to statutory plans, area structure plans, municipal development plans.

But eventually, a redesignationapplication gets presented to council, and when -- when the file is complete, the public hearing is held. And so we would present it tocouncil, and if any further work needed to be done, council would -- would direct that. Q Would there be occasion when you would discuss with council or council members a redesignation application or subdivisionapplication before it was presented for first reading or public hearing? A That would be -- that would be highly unlikely.

I can't remember a situation where -- where I did that in that period. [116] The evidence is also silent regarding any communication between Mr. Good, Mr. Munro and/or any other councillor, and Mr.Rusling or Ms. Connatty vis a vis the Plaintiffs’ redesignation application. [117] Mr. Munro testified as follows regarding his dealings with Planning Department staff: Q -- May 16th, there was a decision made by someone, and then a direction was obviously made to the planning department to includethese six amendments into the MDP draft on May 16th. A I don't recall. Q Were you involved in making those directions?

A I don't -- I don't recall. Q Are you saying you may have been? A I'm saying I don't recall. Q Do you recall meeting with John Rusling at any time during that time period of May 9th to May 16th to discuss including these six amendments into the May 16th draft? A We only saw John Rusling at P&P and council meetings. Q Okay. A Or there were times, if we had, say, a -- someone in our area that was in my division that was, say, having problems with whatever, a bylaw or whatever, we might sit down with John or staff in that situation. MDP was talked about with council in -- you know, in our MDP discussion sessions.

Q How about Mr. Martens, the CAO? A No. Q Do you recall having had discussion with Mr. Martens at any time in that time period of May 9th to May 16 th with respect to the introduction of these six amendments into the May 16th the MDP draft? A Mr. Martens didn't have anything to do with the MDP draft. Q Do you recall we looked at the May 9th minutes of meeting a little earlier? If you could just bring that back before you. A Yes. ... Q Okay.

And do you see that, as soon as the committee came out of camera, that there was a motion by Councillor Beattie that the draft MDP be brought to the May 16th 2012 council meeting for consideration. Do you see that? A Yes. Q And is it fair to state that the agenda for that May 16th, 2012, council meeting had already been set prior to May 9th? A I don't understand the question. Q Is it fair to state that the agenda for that May 16th, 2012, council meeting had to be revised pursuant to this request that the draft MDP be brought to that May 16th meeting for consideration? That's what I meant.

It had to be revised in order to put the MDP on the agenda. Do you recall that? A No. ... A By what date? Shortly after John arrived? Q I believe Mr. Rusling commenced employment with the County in July of 2011. A Yeah. And like I say, I don't know when it started, but certainly that was the policy at the -- you know, later in our council term. Q Was one of the reasons so councillors could try to avoid being lobbied when there was an active application? A That was the intent. Q Mr. Munro, do you recall if you ever gave any direction to Mr.

Rusling or any other member of the planning and development department regarding the timing of processing of any applications for redesignation? A Absolutely not. Q Are you aware if council -- or do you recall if council members gave any such direction to Mr. Rusling or the planning and development department with regard to applications for redesignation made by the plaintiffs? A Absolutely not. Q And do you recall or are you aware if other councillors and you gave any such direction to Mr. Rusling or the planning department?

A I'm not aware of any councillor giving direction in that regard. Q Mr. Munro, did you give any direction to Mr. Rusling or the planning department to delay processing any applications made by the plaintiffs for redesignation in the period -- well, while you were a councillor? A Absolutely not. [ 118 ] I note that direct evidence is rarely available to prove the agreement. See for example Kent v Martin , 2013 ABQB 436 ; Ghost Riders Farm Inc v Boyd Distributors Inc , 2016 ABCA 331 , aff’ing 2016 ABQB 165 .

I must therefore turn to consider the evidence from which the Plaintiffs submit inferences maybe drawn to establish the necessary evidence of an agreement between two or more of the defendants. [ 119 ] In R v Villaroman , 2016 SCC 33 , the Court considered the nature of circumstantial evidence and said that the trier of fact is to consider the reasonable inferences that maybe drawn from the evidence. The inferences must be “...assessed logically, and in light of human experiences and common sense.” at para 36. They cannot be “just possible” or “unreasonable” at para 42.

The Court acknowledged that the line between speculation and reasonable inference in a particular case is not always easy to draw. While I am not the trier of fact, the inferences the Plaintiffs rely on may not be speculative or unreasonable. [ 120 ] The Plaintiffs point to the evidence of Mr. Petherick to support their inference that the delay in placing the Plaintiffs’ redesignation application before council sooner than it was, was part of an agreement between two or more of the Defendants to injure the Plaintiffs. In particular, Mr.

Petherick in his affidavit sworn May 18, 2014 spoke to the development and operation of a software system, CityView, used by MVC with respect to development approval processes: One of the fundamental and critical tasks in configuring the CityView system was business process mapping. In conjunction with MVPD staff and the Director of Planning, I led the development of business process mapping for redesignation, subdivision, development, building, electrical, plumbing and private sewage treatment system permitting processes.

These business process maps went through a number of iterations in consultation with staff and Hawryluk to capture key activities, outcomes and requirements of each step of the respective planning process. Checklists were also developed at key activity points to provide further guidance and ensure consistent application handling amongst staff. Once business process maps were complete and finalized, they were utilized to configure and test the planning software system.

Once implemented, the system tracked and prompted activities of staff throughout the Development Approval Process to assist all staff in moving applications through the respective business process in a consistent and efficient manner. Template letters were also designed to correspond to certain activities where required. Collectively, the system was planned and implemented to ensure consi

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