IAN MCDONALD v. ARLENE MCDONALD, 2003 ABCA 103

McDonald v. Calgary (City of), 2003 ABCA 103 Date: 20030401 Docket: 0201-0365-AC IN THE COURT OF APPEAL OF ALBERTA ____________________________________________________ THE COURT: THE HONOURABLE MR. JUSTICE O’LEARY THE HONOURABLE MADAM JUSTICE HUNT THE HONOURABLE MR. JUSTICE WITTMANN ____________________________________________________ BETWEEN: IAN MCDONALD and ARLENE MCDONALD Respondents (Applicants) - and - THE CITY OF CALGARY and SPRUCE LANE FARM INC. Appellants (Respondents) Appeal from the Judgment of THE HONOURABLE MR. JUSTICE LUTZ Dated the 25th day of November, 2002 Filed the 5th day of December, 2002 ____________________________________________________

MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH ____________________________________________________ COUNSEL: D. Gallagher For the Appellant Spruce Lane Farm C. B. Code For the Appellant City of Calgary T.

Bardsley For the Respondents ____________________________________________________ MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH ____________________________________________________ HUNT J.A. (for the Court): [ 1 ] The Respondents sought judicial review of certain decisions of the Appellant City of Calgary (“the City”) pertaining to a tree farm established by the Appellant Spruce Lane Farm Inc. (“Spruce Farm”) pursuant to an order of the Subdivision and Development Appeal Board (“the Board”). [ 2 ] The chambers judge quashed the May 7, 2001 decision of the City’s Development Authority (“the Development Officer”) that Spruce Farm’s revised plans met Planning Prior to Release Condition 1(

e) of the Board’s March 29, 2001 order. He also quashed the Development Officer’s decision made on or about August 24, 2001, accepting Spruce Farm’s further revised plans. In addition, he declared that the sale of sod was not permitted under Permanent Condition 12 of the Board’s order. McDonald v. City of Calgary (25 November 2002), Calgary 0101-17950 (Alta.

Q.B.). [ 3 ] Many interesting legal points have been raised in the course of this appeal, including whether the decisions at issue are amenable to judicial review, and what circumstances give rise to judicial review of the City’s decision not to prosecute or enforce alleged breaches of Spruce Farm’s development permit. We do not think it necessary to decide most of these points in coming to our conclusion, namely, that the appeal must be allowed and the order of the chambers judge vacated. [ 4 ] We will assume, without deciding, that judicial review lies in regard to the decisions at issue.

It is common ground among the parties that, if judicial review is available, the appropriate standard of review is patent unreasonableness.

[ 5 ] In our view, the chambers judge erred in concluding that such a standard had been breached. It is trite law that a decision is patently unreasonable only if it is clearly irrational and one that no reasonable person could have reached: Canada (A.G.) v. Public Service Alliance of Canada , 1993 CanLII 125 (SCC) , [1993] 1 S.C.R. 941 at 961-64. Although he purported to apply the appropriate standard, the chambers judge erroneously concluded that it had been breached in regard to each of the decisions. [ 6 ] The first issue concerns Planning Prior to Release Condition 1(e). That Condition, and Conditions 1(

d) and (g), which are also relevant, read: 1. Revised plans shall be submitted to the satisfaction of the Authority indicating the following: . . . d. construction of a berm along the westerly property line of the site adjacent to 101 Street SW. e. a cross

section showing the elevation of the appellants’ homes, 101 Street SW, the berm indicating that the sales building is not visible from the appellants’ homes. g. details of lilac hedge to be planted along 101 Street SW, indicating height of the hedge. [ 7 ] It is difficult to discern why the chambers judge thought the Development Officer’s decision to accept the revised plans was patently unreasonable. The Development Officer seems to have concluded that the effect of the berm shown on the revised plans, in conjunction with the lilac hedge, was to conceal the sales office from the view of the neighbouring homes.

The Respondents, whose home is across from the sales office, argue that Condition 1(

e) on its face dealt only with the berm, and not the berm in conjunction with the lilacs. [ 8 ] We cannot say that the Development Officer’s decision was patently unreasonable. The language of Condition 1(e), standing alone, is arguably ambiguous. Moreover, the introductory part of Condition 1 requires that the revised plans be “to the satisfaction” of the Development Officer. This language is broad enough to permit the Development Officer to interpret Condition 1(

e) taking account of other relevant conditions, such as Condition 1(g). In addition, the Development Officer’s

interpretation is in harmony with the oral articulation of the condition by the Board near the end of its proceedings. At A.B. E105, Chairman Lowe stated that one of the conditions was that “visual screening including a berm, ensure that the trailer is not visible from the adjacent neighbours.” (Emphasis added.) [ 9 ] The second issue concerns the Development Officer’s decision to accept the second revised plans. The chambers judge seems to have concluded this was unreasonable because it somehow infringed the Respondents’ rights (A.B. Digest F22).

But he should have asked whether the decision to accept the second revised plans was one that no reasonable person could have made. Had he asked the right question, we think his conclusion would have been different. [ 10 ] The Respondents’ argument is mainly that the Development Officer should not have accepted plans that omitted a line of trees on the west side of the property. But the Board’s order itself did not require the line of trees. It gave the Development Officer discretion to accept revised plans.

Moreover, according to Hartwell’s affidavit for Spruce Farm, dated March 6, 2002, “the inclusion of the berm left too small a space in which to plant the trees as originally contemplated.” [ 11 ] The third issue arises from Chief Development Inspector York’s decision (contained in a letter to the Respondents) that sod was included in the definition of “nursery stock”.

Planning Permanent Condition 12 states in part that “[n]o material other than nursery stock shall be brought onto or sold on the property.” Although the chambers judge gave no clear reason for determining that York’s decision was patently unreasonable, he seems to have concluded that the sale of sod brought more vehicles to the premises (A.B. Digest F16). But this was not relevant to whether or not York’s decision was patently unreasonable.

That decision cannot be said to be irrational, especially absent any expert or other evidence about the scope of the term “nursery stock” in the context of a tree farm. [ 12 ] While we might sympathize with the Respondents’ perception that the City has failed to enforce the Board’s conditions, we are not at liberty to deviate from the well-established tests concerning judicial review. [ 13 ] The appeal is allowed and the chambers judge’s order vacated.

APPEAL HEARD on MARCH 21 , 2003 MEMORANDUM FILED at CALGARY , Alberta, this 1st day of APRIL, 2003 ___________________________________ HUNT J.A.