Ken Barron FIRST Appellant And: Wanda Barron SECOND Appellant And: Eastern Newfoundland Regional Appeal Board First Respondent And: Town of Marystown Second Respondent, 2021 NLSC 150

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Barron v. Eastern Newfoundland Regional Appeal Board , 2021 NLSC 150 Date : November 17, 2021 Docket : 201901G6550 Between: Ken Barron FIRST Appellant And: Wanda Barron SECOND Appellant And: Eastern Newfoundland Regional Appeal Board First Respondent And: Town of Marystown Second Respondent Before: Justice Valerie L. Marshall On Appeal From: A Decision of the Eastern Newfoundland Regional Appeal Board pursuant to the Urban and Rural Planning Act, 2000 , SNL 2000, c. U-8 , dated the 18 th day of September, 2019 . Place of Hearing: St. John’s, Newfoundland and Labrador

Date of Hearing: October 4, 2021 Appearances: Judy M. Manning Appearing on behalf of the Appellants No appearance On behalf of the First Respondent Cindy E. Picco Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Housen v. Nikolaisen , 2002 SCC 33 ; Petten v. St. John’s (City) , 2021 NLSC 87 ; Yates v. Springdale (Town) , 2021 NLSC 3 ; Flynn v. Newfoundland and Labrador , 2018 NLSC 29 ; Baker v.

Canada (Minister of Citizenship and Immigration) , 1999 SCC 699 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 TEXTS CONSIDERED: David Phillip Jones, Q.C. & Anne S. de Villars, Q.C., Principles of Administrative Law , 6th ed. (Edmonton: Thomson Reuters, 2014) REASONS FOR JUDGMENT Marshall, J. : INTRODUCTION [ 1 ] Pursuant to section 46(1) of the Urban and Rural Planning Act, 2000 , S.N.L. 2000, c.

U-8 (the “ Act ”), the Appellants appeal the decision of the Eastern Newfoundland Regional Appeal Board (the “Board”), dated September 18, 2019. In its decision, the Board considered two appeals filed by the Appellants pertaining to the Town’s decision to approve an application by Can-Am Platforms &

Construction Ltd. to build an extension onto an existing commercial building located at 130-140 Ville Marie Drive, Marystown. The Board confirmed the Town’s decision to approve the application. BACKGROUND [ 2 ] The facts are not disputed, and are contained in the briefs filed by the Appellants and the Second Respondent. The First Respondent did not participate in the hearing. [ 3 ] On January 28, 2019 Can-Am Platforms & Construction Ltd. applied to the Town of Marystown for a permit to build an extension onto an existing building.

The application sought approval of an extension to the rear of the building, with the proposed extension measuring 65’ by 40’. On February 5, 2019 the Town passed a motion approving an extension measuring approximately 65’ by 40’ to the rear of the existing building, “subject to Government Services, floor plan, surveyors site location certificate and site inspection”. [ 4 ] The Appellants had concerns regarding the approved extension.

Specifically, their concerns were whether such an extension would violate parking regulations, wheelchair accessibility requirements, and fire and life safety requirements pertaining to commercial buildings. The Appellant, Kenneth Barron, apparently advised the Town’s Director of Planning and Development Control, Mr.

Alje Mitchell, of these concerns. [ 5 ] After reviewing the location certificate and Can-Am’s proposed plan, Town staff determined that the proposed design and extension would not meet setback requirements; this was because the variance between the building and the rear of the property would not be wide enough, if the extension was built at the rear of the building. [ 6 ] On April 2, 2019, the Town did ultimately approve the 65’ by 40’ extension to the building “subject to Government Services Centre for wheelchair accessibility and accessible parking, Fire and Life Safety approval and site inspection”; however, the extension was to be positioned on the right side of the building, not the rear of the building. [ 7 ] On April 15, 2019, the Appellants appealed to the Board the Town’s April 2, 2019 decision.

The grounds of appeal included: that Can-Am’s plan specifications submitted to Council were for an extension smaller in dimension than the 65’ by 40’ extension ultimately approved by the Town, and described in the application; that the application breached

section 108 of the Act by increasing a non-conformity; and that the application breached

section 64 and

Schedule “D” of the parking regulations of the Town. [ 8 ] On May 7, 2019 the Town amended its approval of the proposed building extension, which had earlier been approved on April 2, 2019. The Town amended this by approving a building extension measuring 32.8’ by 40’. On May 31, 2019 the Appellants appealed this second decision of the Town to the Board. [ 9 ] The Board identified the Appellant’s first appeal to the Board as Appeal No. 15-006-064-002. The second appeal was identified as Appeal No. 15-006-064-008.

Both appeals were heard by the Board on September 18, 2019; and both appeals were dismissed by written decision also dated September 18, 2019.

THE BOARD’S DECISION [ 10 ] With respect to the first appeal, the Board determined that the Town had the authority to allow Can-Am’s application to construct the proposed extension “provided any existing non-conformities of the existing building respecting the development standards of the current commercial zoning designation of the property, are not increased” (page 4 of the Board’s decision). [ 11 ] With respect to the second appeal, the Board determined that it lacked authority to hear the appeal, as the “nature of this appeal does not fall within the scope for appeals” under the Act , and that the appeal was filed outside the 14 day requirement in

section 42 of the Act (page 5 of the Board’s decision). [ 12 ] More specifically, at page 6 of the Board’s decision, the Board’s conclusion stated as follows: Conclusion In arriving at its decision, the Board reviewed the submissions and evidence provided by the Appellants and the Authority, along with the technical information and planning advice from the Department of Municipal Affairs and Environment. The Board is bound by

Section 42 of the Urban and Rural Planning Act, 2000 and therefore must make a decision that complies with the applicable legislation, policy and regulations. With regards to Appeal File Number 15-006-064-002: Based on its findings, the Board has determined that the Town of Marystown Council had the authority to make its decision of May 7, 2019 to approve the application from Can-am Platforms and Construction to construct the proposed extension to the commercial building located at 130-140 Ville Marie Drive. With regards to Appeal File Number 15-006-064-008: Based on its findings, the Board has determined it does not have the jurisdiction to hear this appeal.

[ 13 ] The Board made the following order at page 7 of its decision: Order (Appeal File Number 15-006-064-002) Based on the information presented, the Board orders that the decision dated May 7, 2019 of the Town of Marystown Council to approve the application from Can-am Platforms and Construction to construct an extension to the existing commercial building at 130-140 Ville Marie Drive, be confirmed The Board’s decision to confirm the Council decision is based on the Board’s understanding and full expectation that the Authority (the Town) will ensure that the building extension will meet all applicable requirements of the Town’s Development Regulations 2017-2027, including off-street parking requirements for both the existing building and the proposed building extension and further, that there will be no increase to any possible existing non-conformities respecting driving/parking aisle widths at the property.

Appeal File Number 15-006-064-008 Based on the information presented, the Board has determined that it does not have the authority to confirm, reverse or vary the May 7, 2019 decision of the Town of Marystown Council to make an amendment to the April 2, 2019 decision of the Council respecting the application from Can-am Platforms and Construction to construct an extension to the existing commercial building at 130-140 Ville Marie Drive which Council decision was made prior to the appeal from Ken and Wanda Barron being considered by the Eastern Newfoundland Regional Appeal Board.

The Town of Marystown and the Appellants are bound by these decisions of the Eastern Newfoundland Regional Appeal Board. According to

Section 46 of the Urban and Rural Planning 2000, these decisions of the Eastern Newfoundland Regional Appeal Board may be appealed to the Supreme Court of Newfoundland and Labrador Trial Division on a question of law or jurisdiction. If this action is contemplated, the appeal must be filed no later than ten (10) days after the Board’s decisions have been received by the Appellants. [ 14 ] On October 21, 2019 the Appellants filed with this Court a Notice of Appeal with respect to the Board’s decision.

The Appellants alleged that numerous errors of law had been committed by the Board when it confirmed the Town’s April 2, 2019 decision, and when it declined to hear the appeal of the Town’s May 7, 2019 decision. The Appellants asserted that they were denied a full and fair hearing before the Board. Specifically, the Appellants asserted that they were not provided complete copies of architectural plans purportedly relied on by the Town, and referenced by the Town at the hearing.

The Appellants further asserted that they were not afforded the opportunity to make submissions with respect to those plans, which were put before the Board at the hearing.

More specifically, the Appellants asserted that the larger and enhanced plans upon which the Town relied at the hearing were different from those provided to the Appellants prior to the hearing, as contained in the Board package. [ 15 ] The Appellants further submitted that the Board erred in law by relying on the Town of Marystown Development Regulations, 2017-2027 (made pursuant to the Act ), when confirming the Town’s decision, as such regulations were not in force at the time of the Town’s initial decision on April 2, 2019.

The Town of Marystown Development Regulations, 2017-2027 were not adopted until April 23, 2019; and Can-Am’s original application would have been approved by the Town under the Town of Marystown Development Regulations, 2002 . The new regulations changed parking area standards. [ 16 ] The Appellants further submitted that the Board was not duly informed of the subject matter of the appeal, pursuant to section 42(8) of the Act .

This was due to an erroneous technical report received by the Board from the Department of Municipal Affairs and Environment, which did not address the appropriate issue before the Board. [ 17 ] In addition, the Appellants submitted that the Board erred by sanctioning the Town’s decision to increase a non-conformity contrary to section 108(3) (

f) of the Act . Further, the Appellants submit that the Board erred in law by concluding in the absence of evidence that there was “not a non-conformity respecting either the existing use of the property or the proposed use of the existing building and the proposed extension to the building”, and further that there “is no non-conformity regarding usage under either the previous Development Regulations or the current Development Regulations” (page 4 of the decision).

At the same time, the Board also stated in its decision that “there may be an existing non-conformity respecting driving/parking aisle widths on the subject and the existing number of parking spaces on the site” (page 4 of the decision). [ 18 ] In addition to the above-described grounds for appeal, the Appellants further asserted that the Board failed to provide a complete and accurate record to the Court for this appeal. ISSUES [ 19 ] The issues raised by this appeal are as follows: 1. What is the standard of review for this appeal; and 2. Did the Board commit errors in law and/or jurisdiction?

ANALYSIS Issue 1: What is the standard of review for this appeal? [ 20 ] The Appellants appealed the Board’s decision pursuant to

section 46 of the Act which states, as follows: 46.

(1) A decision of a board may be appealed to the court not later than 10 days after that decision has been received by the appellant.

(2) An appeal of a decision of a board under subsection (1) may be made on a question of law or jurisdiction.

(3) A board may be represented by counsel and heard on an appeal under this section.

(4) The court shall either confirm or vacate the order of the board and where vacated the court shall refer the matter back to the board with the opinion of the court as to the error in law or jurisdiction and the board shall deal with the matter in accordance with that opinion. [ 21 ] In accordance with section 46(2) of the Act , the Appellants are entitled to a statutory right of appeal on questions of law or jurisdiction. [ 22 ] In this matter, the Appellants submitted that this appeal engages questions of law, including questions of

interpretation of the Act , as well as questions regarding the Board’s authority and statutory duties. In the Appellants’ brief, they further characterized their grounds for appeal as errors in law and/or jurisdiction. [ 23 ] The Appellants submitted that a standard of review of correctness is appropriate.

The Town submitted that the standard of review is correctness for questions of law, and palpable or overriding error for questions of mixed fact and law. [ 24 ] The Supreme Court of Canada described the standard of review for a statutory appeal of an administrative decision to a court in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 .

At paragraph 37 of Vavilov , the Supreme Court of Canada stated, as follows: 37 It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review.

Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory

interpretation and those concerning the scope of a decision maker's authority, apply the standard of correctness in accordance with Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , at para. 8 . Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen , at paras. 10, 19 and 26-37 .

Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute. [ 25 ] The appellate standard of review applies to the Board’s decision as described in Vavilov (and in Housen v. Nikolaisen , 2002 SCC 33 , at paragraph 8 ). Grounds of appeal which can be characterized as errors of law and jurisdiction fall within the scope of statutory appeal under

section 46 of the Act ; and the standard of review for such alleged errors is correctness. Issue 2: Did the Board commit errors in law and/or jurisdiction? [ 26 ] Although the Appellants enumerated several grounds for appeal, the Court’s analysis will commence by considering the Appellants’ assertion that they were denied a full and fair hearing. This has been described as an error in law at ground 5 in the Notice of Appeal, as follows: “5. That the Board erred in law in failing to provide the Appellants with the opportunity for a full and fair hearing and, without limiting the generality of the foregoing, the Board erred in failing to provide a copy of the larger/enhanced drawing(

s) upon which the Town of Marystown relied at the Hearing on September 18, 2019, and the Appellants were denied an opportunity to review and make submissions with respect to same and, as such, the Board erred in law in failing to follow due process, which flawed process is prejudicial to the Appellants.” [ 27 ] The Appellants’ allegation that they were denied a full and fair hearing is an allegation of a breach of the duty of procedural fairness.

The substance of the Appellants’ allegation of breach of the duty of procedural fairness emanates from the Town putting before the Board, at the hearing, architectural plans which were different than those provided by the Town in advance of the hearing. The record, the transcript, and the submissions of Counsel confirm that the Appellants were never provided with these “different” architectural site plans provided by the Town to the Board at the hearing.

Further, it is unclear whether these different plans provided by the Town to the Board, at the hearing, were contained in the record ultimately filed with the Court by the Board. It is clear, however, that the Appellants were not provided with the opportunity to make full submissions to the Board on the different plans submitted by the Town at the hearing. [ 28 ] To elaborate, it is not disputed that prior to a hearing before the Board, the parties and the Board are provided with documentation pertaining to the hearing. These documents are referred to as the “Board package”.

In this matter, included in the “Board package” were the written submissions of the Town. In accordance with the record filed in Court by the Board, the Town’s submissions in the Board package included correspondence from Alje Mitchell on behalf of the Town to the Board’s secretary, dated April 25, 2019. That correspondence attached numerous documents. Based on the record, it would appear that there were two sets of architectural site plans which were contained in the Town’s documents provided in advance of the hearing. The plans show the proposed extension and parking stalls.

One set of plans depicted 29 new parking stalls, with 31 existing parking stalls to remain, for a total of 60 stalls. The other plan depicted 23 new parking stalls, with 31 existing parking stalls to remain, for a total of 54 stalls. For ease, these two

architectural plans shall be referenced as the “Board package plans”. [ 29 ] As suggested by the transcript (and not disputed in Court by the Town), at the hearing the Town provided the Board with a further set of architectural plans which were different than those contained in the Board package plans. At the hearing before the Board, the Appellants’ Counsel was invited to view these enlarged plans. According to the transcript, these plans were described by Mr. Mitchell as having 25 new parking spaces; this is not the same number of new spaces included in the Board package plans.

The plan with 25 new parking spaces were referenced by Mr. Mitchell as the plan approved by the Town in the following excerpt from the transcript, at pages 72 to 75: MS. MANNING: Q. Okay. Can you point me to that, because I’m not seeing these measurements? I reviewed these documents. I’m not seeing the measurements. I would submit that the Board can’t see those measurements either. And, of course, the Board can only deal with the information that’s before it, because it’s an appellant level. I can see a real property report at page 36 of the Authority’s submissions. MR. MITCHELL: Q.

Well, that’s the only one there is. There’s only one. MS. MANNING: Q. Okay. There’s a real property report there. I’m not seeing those--I’m not seeing those aisle widths covered on that real property report. MR. MITCHELL: Q. No, because it’s in the engineered drawing that Can-Am Platforms provided, the one that I previously pointed out on page 13. CHAIRMAN: Q. Do you have a printed copy of it there, Mr. Mitchell? MR. MITCHELL: Q. All I have is what’s in there and what was--I didn’t bring everything that was in the file with me because it was--I didn’t--hang on now, maybe I do. MS. MANNING: Q.

I have a printed copy as it appears on an eight and a half by eleven sheet, if you want it. CHAIRMAN: Q. Okay. Well, let’s see if Mr. Mitchell has perhaps a little larger copy. Would you like to come up and we’ll have a look at it up here? MR. MITCHELL: Q. I got the--that’s the submission. CHAIRMAN: Q. Okay. MR. MITCHELL: Q. Now this is the one--this is the one that has been approved as of April 2nd. CHAIRMAN: Q. Okay. So is there anything you’d like to point out to us on this? MR. MITCHELL: Q. The entrance width is seven metres. CHAIRMAN: Q. Um-hm. MR. MITCHELL: Q. These are the new parking spaces.

There are 25 of those. Four of those was going to be extended here, which is where the non- conformity if there’s--if there is this. Because this is, you know, this is parallel parking. And what the aisle width is supposed to be, four metres. But if you look on the--don’t have the real property report, but I believe on the real property report it says, “three metres.” So this is non-conformity existed, hasn’t--

MS. MANNING: Q. Wait, and but-- MR. MITCHELL: Q. This, this is--this is the piece of the building that we’re building on. All this parking conforms. The four metre aisle width conforms. Perpendicular are all 7 metres. Everything else conforms. MS. MANNING: Q. But, Mr. Mitchell, the point you’re missing here is that-- CHAIRMAN: Q. No, questions, okay, not-- [ 30 ] Further, the transcript suggested that Counsel for the Appellants endeavoured to question Mr. Mitchell with respect to these different plans put before the Board at the hearing; but Counsel appears to have been hindered by the Board.

At pages 76 to 82, the transcript stated as follows: MS. MANNING: Q, And with respect to the aisle widths, for example, there’s a four metre aisle width requirement. And what I’m seeing on this plan, this is why I submit to you, I’m not satisfied that this plan meets the requirements that are specified in the Development Standards because, for example, this aisle width, so it says-- MR. MITCHELL: Q. Four metres. MS. MANNING: Q. Yes, it says four metres here. Now, on one of the real--one of the sketches that I had there it showed how the measurements actually enhanced showing--like this, the--I’m sorry.

The clearance here is not going to--whatever--this measurement here, right here, is not the same as this measurement here. I’m sure you’ll agree with that. But the whole thing is identified to be four metres. MR. MITCHELL: Q. But if you had--if you had an engineer’s scale and you scaled that off to the drawing scale, you’d see that it was four metres. MS. MANNING: Q. They’re not scaled off. They’re not scaled off. MR. MITCHELL: Q. The drawing--that’s a copy. MS. MANNING: Q. And the drawing was wrong the first time. It was wrong when the original went in. CHAIRMAN: Q. Okay, that’s fine. MR.

MITCHELL: Q. (Unintelligible). CHAIRMAN: Q. You’re making arguments, not questions. So, you can take your seats again, please. Do you need these back? MR. MITCHELL: Q. I’ll put them in my file. CHAIRMAN: Q. Perhaps would it be possible to-- (Multiple people speaking – unintelligible). CHAIRMAN:

Q. Can we have--you don’t have any other copies-- MR. MITCHELL: Q. Oh, yeah, I got some back at my office. CHAIRMAN: Q. So would we be able to retain these for-- MR. MITCHELL: Q. Yes. CHAIRMAN: Q. All right. Okay. We’re going to conclude the hearing now. MS. MANNING: Q. If I may, I just have one point of rebuttal for the Board. CHAIRMAN: Q. No. Just a moment, please. Just let me proceed. What we’re going to do, we’re going to make an opportunity for both parties, the Appellant and the Authority, the Town, to provide brief concluding remarks if you wish at this point. Okay. MS. MANNING: Q.

First of all, if I may, I’m assuming that that, the record that we just saw will form part of the record of this proceeding and will be made available for the Appellants as well? The exhibit that we’ve just had submitted, because I don’t have that in that form. I don’t have that in a readable form. CHAIRMAN: Q. Will you agree to make that available as soon as possible? MR. MITCHELL: Q. Absolutely. It’s there in--again, it’s not, it’s not-- CHAIRMAN: Q. But at this-- MS. MANNING: Q. Not scaled. CHAIRMAN: Q. At this size-- MR. MITCHELL: Q. That’s not there at that scale, no.

And if you photocopy that, it throws the scale off, so-- CHAIRMAN: Q. All right. So will you-- MR. MITCHELL: Q. In order to get something that’s scalable, it has to come, the original drawing, from the engineer. Like, once that comes up over-- once you start copying stuff and everything, it throws things off, so. CHAIRMAN: Q. So will you agree to make copies available of this? MS. MANNING: Q. And is there a scaled plan, because that’s not scaled? CHAIRMAN:

Q. Okay. You can do that as soon as-- MS. MANNING: Q. Is the Council basing this on a scaled plan? CHAIRMAN: Q. Okay. You do that as logistically as soon as possible? MR. MITCHELL: Q. Whoever needs it, yeah. CHAIRMAN: Q. Okay, fine. To your concluding remarks? CONCLUDING REMARKS BY MS. JUDY MANNING MS. MANNING: Q. Yes. I would just remind the Board, of course, that the Board’s jurisdiction, of course, is limited to the record that’s before it.

So, in terms of what we’ve seen here today and any further submissions that the Council may be--may have, that’s not forming part of the record, it’s not within the jurisdiction of the Board today, certainly not within the jurisdiction of the Appellants to respond to either. Just procedurally I think there’s a denial of natural justice here, which is probably, I submit, based on my friend’s remarks, is probably not being recognized. … [ 31 ] The Appellants assert that the different plans submitted by the Town at the hearing were never provided to the Appellants.

Further, the Appellants were not given the opportunity to make submissions with respect to these different plans prior to the Board releasing its decision. These assertions were not disputed by the Town. [ 32 ] Further on this point, there were additional larger architectural plans attached at the back of the Board’s record filed in Court for this appeal.

However, the Appellants asserted that it remains unclear to them as to whether the different architectural plans provided by the Town at the Board hearing are the same as the additional larger plans provided in the Board’s record filed with the Court for this appeal.

I accept that such remains unclear; the Board did not participate, and the Town did not dispute the Appellants’ assertion in this regard. [ 33 ] Further on this, and with respect to the Board’s record filed for this appeal, the Appellants submitted that the Board failed to provide a complete and accurate record with the Court, contrary to Rule 58.09 of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . Rule 58.09 states as follows: 58.09

(1) The decision-making authority must, within 30 days of being served with the Notice of Appeal, (

a) file a copy of the record of the proceedings heard before the decision-making authority; and (

b) serve a copy of the record on each party to the appeal in accordance with rule 6.11.

(2) The record must include the following: (

a) the written decision or order being appealed, or, if no written record was created, a

summary of the decision; (

b) reasons for the decision, if any were recorded; (

c) any exhibit filed with the decision-making authority; (

d) a copy of the official sound recording of the evidence, if any; and (

e) any other relevant documents in the decision-making authoritys possession.

(3) The record may be in Form 58.09A.

(4) Despite the provisions of this rule, the parties to an appeal may agree on what constitutes the record or may file an agreed statement of facts. [ 34 ] The Board had initially filed with the Court a copy of the purported record on December 17, 2019 (the “first appeal record”). The Appellants took issue with the accuracy of the first appeal record. Consequently, on November 17, 2020, the Appellants filed an application seeking an order requiring that the Board file a complete and accurate record.

In that application, the Appellants suggested that the additional larger architectural plans included in the Board’s first appeal record, as filed with the Court, appeared to be different than the plans that had been put before the Board by the Town at the hearing; and were again different from the plans provided to the Appellants in the Board package. [ 35 ] The first appeal record included the Town’s submissions and the Board package plans.

As already stated, the Board package plans included two sets of architectural plans: one denoting 29 new parking stalls with 31 existing parking stalls to remain, for a total of

60 stalls; and the other denoting 23 new parking stalls with 31 existing parking stalls to remain, for a total of 54 stalls. In addition to the Board package plans, the Board’s first appeal record filed with the Court appended additional larger architectural plans; and it was not disputed that these additional plans had not been part of the Board package.

These additional plans were different from the Board package plans inasmuch as these larger plans included one plan indicating 28 new parking stalls with 26 existing parking stalls to remain, for a total of 54 stalls; and another plan denoting 23 new parking stalls with 26 existing parking stalls to remain, for a total of 49 stalls. [ 36 ] The Appellants’ application was heard in Court on November 30, 2020. The Board chose not to participate at the hearing.

Based on the submissions at that hearing, it was ordered that the Board was to file in Court a complete and accurate appeal record in compliance with Rule 58.09 of the Rules of the Supreme Court, 1986 . [ 37 ] Pursuant to the Court’s order, the Board filed a second appeal record with the Court on December 8, 2020. [ 38 ] At the hearing of this appeal, the Appellants submitted that the second appeal record filed by the Board with the Court remained inaccurate.

More specifically, the Appellants submitted that included in the second appeal record was again that set of additional larger architectural plans which had not been included in the Board package plans; but that the additional plans included in the second appeal record still appeared to be different from the materials put before the Board by the Town at the hearing. [ 39 ] The Board did not participate at the hearing of this appeal. However, I note again that at the hearing before the Board, Mr. Mitchell suggested that the new plans he put before the Board had 25 new parking stalls (at page 74 of the transcript).

The architectural plans in the Board package, and the larger architectural plans additionally appended to the Board’s record(

s) filed with the Court, did not indicate 25 new parking stalls. [ 40 ] Considering the submissions of both Counsel, along with the transcript and record(

s) filed, I find that it does indeed remain unclear as to whether the larger architectural plans included with the appeal record(

s) were indeed the plans provided and referenced by Mr. Mitchell, at the hearing before the Board. Consequently, it is unclear as to whether the record(

s) provided by the Board for this appeal were complete. Nevertheless, what is clear and not disputed by the Town is that the Board package provided to the Appellants’ Counsel in advance of the hearing did not include the architectural plans relied on and referenced by the Town, at the hearing before the Board.

Further, it is clear that both before and during the hearing, the Appellants were not provided with the architectural plans relied on by the Town, and presented by the Town to the Board at the hearing. [ 41 ] Further it is also clear that the architectural plans, which depicted the number of parking spaces and aisle widths, were relevant to the Board’s decision. As stated, the Board noted in its decision (at page 4) that “there may be an existing non-conformity respecting driving/parking aisle widths on the subject and the existing number of parking spaces on the site”.

The Board further noted at page 4 that pursuant to section 108(3) (

f) of the Act “where the non-conformance is with respect to standards included in development regulations, shall not be expanded if the expansion would increase the non-conformity”. The Board therefore determined that the Town had the authority under the Act to allow the extension “provided any existing non-conformities of the existing building respecting the development standards of the current commercial zoning designation of the property, are not increased” (page 4 of the Board’s decision).

The Board, in turn, relied upon the advice of the Town’s Director of Planning “that there would be no increase in any possible existing deficiencies to driving/parking aisle widths with the construction of the proposed building extension” (pages 4 and 5).

Further, at page 5, the Board relied upon the Director’s advice that the additional on-site parking which Can-Am intended to provide would “satisfy the parking requirements for both the existing building and building extension as per the parking requirements of the Town’s current Development Regulations 2017-2027 ”. [ 42 ] In any event, I am satisfied that the Appellants were neither provided with the different architectural plans submitted by the Town at the Board hearing, nor were they provided with the additional architectural plans appended to the back of the Board’s record(

s) prior to, and at the hearing. Further, I accept the Appellants’ submission that the Board did not provide them with the reasonable opportunity to make full submissions before the Board with respect to the architectural plans ultimately relied on by the Town for its decision respecting Can-Am’s application. To be clear, I find that the Appellants did not know the case that they had to meet before the hearing; and they were not afforded a reasonable opportunity to question Mr.

Mitchell on the different plans, and to make submissions with respect to these plans. [ 43 ] It is not disputed by the parties that a fair hearing before the Board would include the requirement that the parties know the case that they must meet at the hearing, and be afforded a reasonable opportunity to present their case. This was recently succinctly stated by Justice Khaladkar in Petten v. St.

John’s (City) , 2021 NLSC 87 at paragraph 23 , as follows: 23 It is a long established and fundamental tenet of our common law that a fair hearing requires that each party to a case have reasonable and adequate notice of the case that s/he is to face and be offered a fair opportunity to present and state her/his case. [ 44 ] In addition, the curtailing of cross-examination of a witness may also support a finding of a breach of the duty of procedural fairness. This was the finding in Yates v. Springdale (Town) , 2021 NLSC 3 where such a breach was found to have occurred.

At paragraph 13 of the Yates decision, Justice Paquette referred to Justice Butler’s detailed discussion of the duty to be fair in Flynn v. Newfoundland and Labrador , 2018 NLSC 29 , as follows: 13. Butler J. (as she then was) discussed procedural fairness in Flynn v. Newfoundland and Labrador , 2018 NLSC 29 . The right to be heard includes the requirement that one knows the case one has to meet. Flynn explains procedural fairness at paragraphs 17 to 20: 17 Natural justice is a legal concept which requires fairness in the process of decision-making.

Judicial review is used to control the procedure utilized to exercise legislative powers. If the Court finds a breach of the duty to be fair, the delegate’s actions (and the decision) are void because the error is jurisdictional in nature (David Philip Jones, Q.C. & Anne S. de Villars, Q.C., Principles of Administrative Law , 6th ed. (Edmonton: Thomson Reuters, 2014 at 263).

18 According to the Principles of Administrative Law, at page 263, the scope and extent of procedural fairness will vary by thecircumstances and the subject matter of the case. On the facts before me, the Policy did not establish a code of conduct for theinvestigation. There was no hearing, and the only reference to the Reviewer’s role was in

section 3 of the Policy and stated “Thereviewer may contact the person(

s) who filed the appeal to request additional information but is not required to do so”. 19 The two fundamental principles of natural justice are the right to be heard and the rule against bias. 20 The right to be heard includes the requirement that the person know the case against them and be given an opportunity to answerit before the Decision is made. At pages 264-265, Jones and de Villars cite the Supreme Court of Canada decision Baker v. Canada(Minister of Citizenship & Immigration) (1999), (SCC), 14 Admin.

L.R. (3d) 173 (S.C.C.), for the factors which shouldbe considered relevant to determining the content of the duty of fairness as follows: 1. The nature of the decision being made and the process followed in making it. The closer the administrative process is to judicialdecision-making, the more likely it is that procedural protections closer to the trial model will be required. 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. The role of the decision in thestatutory scheme helps determine the content of the duty of fairness.

Greater procedural protections are required when there is no appealprocedure or the decision determines the issue and further requests cannot be submitted. 3. The importance of the decision to the individual or individuals affected. The more important or the greater impact the decision has, themore stringent are the procedural protections. This is a significant factor. The court in Baker commented: The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the morestringent the procedural protections that will be mandated.

This was expressed, for example, by Dickson J. (as he then was) in Kane v.University of British Columbia, (SCC), [1980] 1 S.C.R. 1105 (S.C.C.) at p. 1113: A high standard of justice is required when the right to continue in one’s profession or employment is at stake.... A disciplinarysuspension can have grave and permanent consequences upon a professional career. 4. The legitimate expectations of the person challenging the decision. The doctrine of legitimate expectations is part of the doctrine ofprocedural fairness.

If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairness requires thisprocedure to be followed. If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairnessrequires this procedure to be followed. If a claimant has a legitimate expectation that a certain result will be reached, fairness mayrequire more extensive procedural rights than might otherwise be accorded. The doctrine of legitimate expectations does not createsubstantive rights outside the procedural domain.

The “circumstances” affecting procedural fairness take into account the promises orregular practices of administrative decision-makers. It will be generally unfair of the decision-makers to act contrary to theirrepresentations as to procedure or to go back on substantive promises without giving the person affected significant procedural rights. 5. The choices of procedure made by the agency itself, particularly if procedure is a matter of discretion or if the agency possessesexpertise in determining appropriate procedures.

Important weight must be given to the choice of procedures made by the agency and itsinstitutional restraints. This list of factors is not exhaustive. Generally, however, it is imperative that individuals who are affected by administrative decisions begiven the opportunity to present their case in some fashion. They are entitled to have decisions affecting their rights, interests, orprivileges made using a fair, impartial, and open process which is appropriate to the statutory, institutional, and social context of thedecision being made.

With those factors enunciated in Baker in mind, a court must determine whether the procedure that was used inreaching any given decision was, in fact, fair, impartial, and open. This involves a detailed review of the circumstances of each case anda determination of whether the factors were applied properly. [45] To reiterate, as stated by Justice Butler in the foregoing excerpt from Flynn v.

Newfoundland and Labrador (at paragraph 20),the “right to be heard includes a requirement that the person know the case against them and be given an opportunity to answer it beforethe Decision is made”. [46] Further, I have considered the above-described factors from Baker v. Canada (Minister of Citizenship and Immigration), 1999SCC 699; as referenced in Flynn v. Newfoundland and Labrador, at paragraph 20, where Justice Butler refers to the text David Phillip

Jones, Q.C. & Anne S. de Villars, Q.C., Principles of Administrative Law , 6th ed. (Edmonton: Thomson Reuters, 2014), at pages 264- 265. Based on the Baker factors, I am persuaded that the content of the duty of fairness required that the Appellants be provided with a copy of the architectural plans relied on by the Town in its submissions at the Board hearing; and that the Appellants be afforded a reasonable opportunity to cross-examine the Town’s witness, and make submissions, in respect of same. [ 47 ] When considering the Baker factors in Yates v.

Springdale (Town) , Justice Paquette (at paragraph 15 of Yates ) determined that the hearing before the Board in that case was “in the nature of a court proceeding”. Similarly, in this case I find that the nature of the decision making process engaged by the Board was close to judicial decision making, and that the hearing was also “in the nature of a court proceeding”.

More specifically, the Board’s rules of procedure (as contained in the appeal record(s)) indicate that the proceedings are recorded, the parties present their cases before the Board, they call witnesses and may cross-examine the witnesses, following which the parties make submissions; and the Board’s decision follows the hearing.

In my view this process, in itself, created the legitimate expectation that the Appellants should have been afforded the opportunity to review the “different” architectural plans provided at the Board hearing by the Town, and that they should have been permitted to cross-examine and make submissions with respect to same. [ 48 ] Granted, there is a statutory right of appeal. Further, at the hearing of this appeal, the Appellants did not make it abundantly clear how the Board’s decision would impact them.

Nevertheless, standing was not in issue at the Board hearing (pages 32-33 of transcript), nor was it raised by the Town at this appeal. [ 49 ] On balance, based on the Baker factors, I am satisfied that the content of the duty of fairness in this matter required that the Appellants be provided with the architectural plans relied on by the Town at the hearing; and that the Appellants be afforded the opportunity to cross-examine the Town’s witnesses, and make submissions in respect of same.

This did not occur at the hearing. [ 50 ] Based on the foregoing analysis, I am satisfied that the Appellants were denied a full and fair hearing before the Board; and I find that the Board committed a breach of the duty of procedural fairness. As referenced by Justice Butler in Flynn v. Newfoundland and Labrador (at paragraph 17 ), a breach of the duty to be fair is in the nature of a jurisdictional error which voids the administrative decision.

Therefore, I find that the decision and order made by the Board is to be set aside, and the matter is to be remitted back to the Board for a full re-hearing; with the direction that there is to be full disclosure of the parties’ documents in advance of the hearing.

If any new documents are provided in the course of the hearing, the parties are to be afforded a reasonable opportunity to review the documents; and to cross-examine and make submissions with respect to same. [ 51 ] Based on the determination that the Board’s decision and order is to be set aside, it is not necessary to consider the remaining grounds of appeal. CONCLUSION [ 52 ] In conclusion, it is ordered that the appeal is allowed, and that the Board’s decision and order dated September 18, 2019, is vacated in its entirety.

It is further ordered that the matter is remitted back to the Board for a re-hearing, subject to the above-described direction. Further based on this outcome, the Town is ordered to pay the costs of the Appellants, pursuant to Column 3, Rule 55 of the Rules of the Supreme Court . [ 53 ] Order accordingly. _____________________________ Valerie L. Marshall Justice