Caregivers Inc. O/A Blue Sky Family Care Appellant And: Central Newfoundland Regional Appeal Board First Respondent And: Town of Grand Falls-Windsor Second Respondent Corrected decision: T he text of the original decision was corrected on August 15, 2019 v. a description of the correction is appended., 2019 NLSC 151

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Caregivers Inc. (Blue Sky Family Care) v. Newfoundland and Labrador (Central Newfoundland Regional Appeal Board ) , 2019 NLSC 151 Date : August 13, 2019 Docket : 201601G3675 Between: Caregivers Inc. O/A Blue Sky Family Care Appellant And: Central Newfoundland Regional Appeal Board First Respondent And: Town of Grand Falls-Windsor Second Respondent Corrected decision: T he text of the original decision was corrected on August 15, 2019 and a description of the correction is appended. Before: Justice Sandra R.

Chaytor On Judicial Review From: A Decision of Central Newfoundland Regional Appeal Board, dated the 4th day of May, 2016. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 14, 2019

Summary:

An operator of a youth residential care home appealed a decision of a regional appeal board pursuant to the Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8 which upheld a decision of a town council to revoke the operator’s permit to carry on its business within the town. Held: The Board erred in law in misinterpreting its authority under the Act and, in particular, the restriction imposed on its powers by subsection 42(11) of the Act . The Board has authority to consider and rule upon whether the process followed by the Town was in accordance with the principles of natural justice. The appeal is allowed. Pursuant to

section 46 of the Act, the decision of the Board is vacated and the matter is referred back to the Board for rehearing in accordance with these reasons. The Appellant is awarded its costs of the appeal on a party and party basis. Appearances: J. Alexander Templeton Appearing on behalf of the Appellant No Appearance On behalf of the First Respondent Robert H. Fedder Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick, 2008 SCC 9 ; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 .

STATUTES CONSIDERED: Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 . RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D . REASONS FOR JUDGMENT Chaytor, J. : OVERVIEW: [ 1 ] On October 28, 2014, apparently in response to ongoing complaints from residents, the Council of the Town of Grand Falls- Windsor met and revoked the Appellant’s (Blue Sky) permit to operate a youth residential care home in the Town. [ 2 ] The permit, which had been issued less than five months before revocation, included the following conditions: 4.

Blue Sky Family Care must ensure that Residential Care Use at the approved location does not disrupt the normal enjoyment of adjacent residents and character of the neighbourhood. 6. Blue Sky Family Care is to make every effort to address concerns from adjacent residents and/or the Town. Business Permit is subject to review if complaints are received. Council may revoke the Business Permit (operation of Blue Sky Family Care) if issues cannot be resolved.

[ 3 ] On August 7, 2014, the Town had notified Blue Sky that there had been a commotion at the residence and disturbance in the neighbourhood. On August 15, 2014 the Town’s community planner spoke by telephone to Blue Sky’s director, regarding the issues. The following week, Blue Sky’s director emailed the Town advising that a representative of Blue Sky had visited neighbouring properties and had provided contact information for Blue Sky but no response had been received.

He also advised that he would personally be coming to Town and intended to meet with neighbours and requested input from the Town as to whom he should approach. He also indicated that he would be meeting with Child Youth and Family Services and the RCMP. [ 4 ] Without any further communication with Blue Sky, the Town revoked the permit. The Town wrote to Blue Sky on October 28, 2014 notifying of its decision. The letter referenced permit conditions enumerated 4 and 6 and stated that in light of the continuous and unresolved disturbance to the neighbourhood, the permit had been revoked.

The operation of the home was to cease by November 30, 2014. [ 5 ] Blue Sky appealed the revocation to the Central Newfoundland Regional Appeal Board asserting, for a variety of reasons – including an allegation of bad faith – that it had been denied procedural fairness by the Town. [ 6 ] The hearing before the Board occurred May 24, 2016. At the outset of the hearing, Blue Sky contended that there had not been full disclosure by the Town.

It asked the Board to issue a subpoena compelling the Town to produce all relevant documentation including: any documentation of the concerns raised by the neighbouring residents; documentation of internal and external communications by Town officials and staff regarding the issues raised; a copy of the Minutes of any meetings of the Town council in which the issues were discussed; and a copy of the report of the Royal Canadian Mounted Police pertaining to complaints regarding the property.

In response, the Town took the position that it had produced the information requested by the Board. [ 7 ] The Board considered that it had sufficient information to decide the matter and declined to issue the subpoena. The Board continued with the hearing and decided that because there was no prescribed procedure governing the Town’s process of revocation, the process invoked was a matter wholly within the discretion of the Town and therefore was not reviewable by the Board. [ 8 ] Blue Sky has appealed to the Court pursuant to

section 46 of the Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8 (the “ Act ”), asserting that the Board erred when it refused to issue the subpoena and failed to find that the Town had not breached any duty of procedural fairness owed to Blue Sky. Counsel for the Town advised that although the permit revocation was to be effective November 30, 2014, the Town has taken no further steps to enforce the revocation pending the conclusion of the appeal process. [ 9 ] Pursuant to subsection 46(1) of the Act , appeals are limited to questions of law or jurisdiction.

The following are the issues for determination on this appeal: 1. Did the Board err in law or jurisdiction in refusing to compel the Town to produce all documentation relating to the decision to revoke the Permit? 2. Did the Board err in law or jurisdiction in failing to find that the Town had denied procedural fairness to Blue Sky in the revocation process? [ 10 ] For the reasons that follow, I have concluded that Blue Sky succeeds on the second issue. Accordingly, it is not necessary to determine the issue of the subpoena.

ANALYSIS Issue: Did the Board err in law or jurisdiction in failing to find that the Town had denied procedural fairness to Blue Sky in the revocation process? [ 11 ] The Board did not reach any conclusion regarding the fairness of the process adopted by the Town because it was of the view that the process followed was within the discretion of the Town and that, accordingly, the Board could not interfere. [ 12 ] It stated in its decision: Since the Development Regulations do not prescribe how a permit may be revoked, the Board determined that the Town exercised its discretion when it determined how to proceed with revoking the subject Business Permit.

While the Board acknowledges that the Town could have been more transparent throughout the process leading to the revoking of the Business Permit, the Board is bound by

section 42 of the Urban and Rural Planning Act, 2000 and thus, must make a decision that complies with the applicable legislation, policy and regulations and shall not insert its discretion for that of Council’s. The Board therefore finds that the Town notified the Appellant that their Business Permit was revoked in accordance with the Town’s Development Regulations and in a manner prescribed by the Authority.

[ 13 ] In reaching its decision, the Board appears to be referencing the following subsections of

section 42 of the Act and the subsections of the Town’s development regulations 2012-2022 [1] referenced below: 42(3) An appeal board shall not make a decision that does not comply with a plan, scheme and development regulations that apply to the matter being appealed. 42(9) A board shall consider and determine appeals in accordance with this Act and a plan, scheme and regulations that have been registered under

section 24 and having regard to the circumstances and merits of the case. 42(10) In determining an appeal, a board may confirm, reverse or vary the decision appealed from and may impose those conditions that the board considers appropriate in the circumstances and may direct the council, regional authority or authorized administrator to carry out its decision or make the necessary order to have its decision implemented. 42(11) Notwithstanding subsection (10), where a council, regional authority or authorized administrator may, in its discretion, make a decision, a board shall not make another decision that overrules the discretionary decision. [ 14 ]

Section 35 of the Act , directs a Town council to make development regulations, including those respecting the approval and cancellation of permits, and conditions applicable to permits. The purpose of such regulations is to ensure that land is controlled and used in accordance with the Town’s plan. [ 15 ] Subsections 3.3(3), 3.3(4), 3.6.9(2) and 3.6.9(6) of the Town’s development regulations state as follows: 3.3

(3) The Town may cause notice in writing to be served to the owner or occupier of real property found to contravene the provisions of the Development Regulations, identifying the details of the contravention and the action required of the party so notified. 3.3(4) The notice in writing may be served by the Town by hand delivering it to the owner or occupier of the real property that is subject to the notice, by posting it on a conspicuous place on the subject property, or by registered mail. 3.6.9(2) The Authority may attach to a Development Permit or to an approval in principle such conditions as it deems necessary in order to ensure that the proposed development will be in accordance with the purposes and intend [sic] of these Regulations. 3.6.9(6) The Authority may revoke a Development Permit for failure by the holder of it to comply with these Regulations or any condition attached to the Permit or where the Permit was issued in error or was issued on the basis of incorrect information. [ 16 ] Although most decisions of an administrative tribunal will be reviewed based upon a reasonableness standard, true questions of jurisdiction or vires are included in the exceptions noted in Dunsmuir v.

New Brunswick , 2008 SCC 9 , which attract a standard of correctness. True jurisdiction questions arise where the tribunal maker must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction ( Dunsmuir , at paragraph 59 ). [ 17 ] The Board declined to examine the issue of the fairness of the Town’s process because it was of the view that it had no authority to do so. Although this issue involves an

interpretation of the Board’s “home statute”, the provision in question is one that goes to the ambit of the Board’s adjudicative authority. Given the current tendency for issues of jurisdiction to be constrained within narrow parameters, I am satisfied to consider this

interpretation as an error of law; however, given the nature of the error, it is my view that it falls within a true jurisdictional issue that is properly reviewed on a standard of correctness. The Board must interpret its grant of authority correctly. I hasten to add that, even if reviewed against a reasonableness standard, the

interpretation reached by the Board - that it had no authority to review the process adopted by the Town so as to ensure procedural fairness - is unreasonable. [ 18 ] Although the Board expressed concerns about the transparency of the Town’s revocation process, it refused to review the process. The Board was of the view that as the regulations did not prescribe a process, the Town had the discretion to determine the appropriate process, and because the process chosen was a discretionary decision of the Town, the Board could not review the process.

This reflects a misreading of its powers pursuant to the Act and in particular the restriction on its powers imposed by subsection 42(11) of the Act . In my view, this constitutes an error of law. The corollary to the Board’s conclusion is that any review of an alleged breach of procedural fairness by a municipality can only take place in the context of an appeal to the Court of a decision of a Board.

This would run contrary to the statutory process by which appeals from municipal authority decisions are meant to be dealt with expeditiously and rather informally. [ 19 ] It is correct that, pursuant to the Act , if the decision appealed from is a discretionary one the Board cannot make another decision that overrules the Town’s decision. The Act does not go so far, however, to preclude the Board from considering and ruling upon whether the process followed in reaching a discretionary decision was in accordance with the principles of natural justice. As noted in Moreau-Bérubé v.

New Brunswick (Judicial Council) , 2002 SCC 11 , the duty to comply with the rules of natural justice and to follow rules of procedural fairness extend to all administrative bodies acting under statutory authority. In my view, it was incumbent on the Board to ensure that the Town’s process was such that procedural fairness was afforded to both parties. [ 20 ] Absent clear statutory direction, deference is not owed to the Town on issues of procedural fairness. The discretion bestowed upon the Town regarding its process, does not relieve it from abiding by the principles of natural justice.

The Board had the authority to review the process adopted by the Town for procedural fairness and should have done so. It was not sufficient for the Board to simply take the position that because the regulations were silent as to how a permit may be revoked that the Town had discretion to determine

its own procedure and therefore the Board could not interfere. The Board would be expected to conduct an analysis to determine whether the procedure invoked by the Town, in exercising its discretion, was procedurally fair.

Since the Board did not address the issue of the content of any duty of procedural fairness owed by the Town to Blue Sky, and as it is for the Board to express its views on this issue, I will not comment further on the point. [ 21 ] Pursuant to subsection 46(3) of the Act , the Court shall confirm or vacate the order of the Board and where vacated, the Court shall refer the matter back to the Board with the Court’s opinion as to the error in law or jurisdiction and the Board shall deal with the matter in accordance with that opinion. I have already stated the error of law committed.

It may also be appropriate to offer my opinion that should the Board , after considering the matter, find that the Town breached procedural fairness in the process surrounding its decision, the proper course of action would be for the Board to quash the revocation and refer it back to the Town for reconsideration in accordance with procedural fairness. The Town would then consider anew whether or not it should exercise its discretion to revoke the permit.

It would be reasonably expected, given the passage of time, that the Town would take into account current circumstances rather than focusing on the situation as it existed in October 2014. [ 22 ] On the other hand, should the Board conclude that the Town did not breach its duty of procedural fairness, the Board, in the interest of fairness and clarity, should inquire of Blue Sky to what extent Blue Sky’s notice of appeal to the Board was intended to raise issues involving the substance of the Town’s decision – as distinct from procedural issues.

I say this as although the 2014 appeal to the Board solely articulated procedural grounds, the request to the Board to issue a subpoena for full disclosure suggests that a review of the substantive decision of the Town was expected. [ 23 ] To the extent that Blue Sky indicates that the appeal is intended to engage substantive issues, some clarification and perhaps amendment of the notice of appeal may be required. If the appeal is to include substantive grounds, the Board should then determine if all parties have the information needed to address the substantive issues.

The Board would then need to ensure that all information relating to the revocation has been provided and that an adequate opportunity has been given to review the information before the actual hearing proceeds. [ 24 ] Should Blue Sky be of the view that, notwithstanding, the provision of all related information, the allegation of bad faith requires additional evidence or production from the Town, it would be the responsibility of Blue Sky to put evidence before the Board in order to establish that there is an air of reality to the allegation of bad faith, and that there are records in existence that have not yet been produced.

CONCLUSION [ 25 ] The appeal is allowed. Pursuant to

section 46 of the Act, the decision of the Board is vacated and the matter is referred back to the Board for reconsideration of Blue Sky’s appeal in accordance with these reasons. [ 26 ] Blue Sky is awarded its costs of this appeal on a party and party basis pursuant to Rule 55, Column 3 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D . _____________________________ Sandra R. Chaytor Justice APPENDIX Corrections made on August 15, 2019: 1. The neutral citation number has been changed from 2018 NLSC 151 to 2019 NLSC 151.