Trak Developers Inc. Appellant And: Eastern Newfoundland Regional Appeal Board First Respondent And: Town of Portugal Cove-St. Philip's Second Respondent, 2022 NLSC 57

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Trak Developers Inc. v. Eastern Newfoundland Regional Appeal Board , 2022 NLSC 57 Date : March 31, 2022 Docket : 202001G5442 Between: Trak Developers Inc. Appellant And: Eastern Newfoundland Regional Appeal Board First Respondent And: Town of Portugal Cove-St. Philip's Second Respondent Before: Justice Valerie L. Marshall On Appeal From: A Decision of the Eastern Newfoundland Regional Appeal Board pursuant to

section 46 of the Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 , dated October 8, 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 28, 2022

Summary: Trak appealed a Board decision, primarily on grounds of breach of the duty of procedural fairness.

HELD: The appeal was dismissed. Appearances: Ernest L. Gittens Appearing on behalf of the Appellant No appearance On behalf of the First Respondent Jonathan D. Dale Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Barron v. Eastern Newfoundland Regional Appeal Board , 2021 NLSC 150 ; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Housen v. Nikolaisen , 2002 SCC 33 ; Aylward v. Law Society of Newfoundland and Labrador , 2013 NLCA 68 ; Flynn v. Newfoundland and Labrador , 2018 NLSC 29 ; Baker v.

Canada (Minister of Citizenship & Immigration) , 1999 SCC 699; Kirchmeir v. Edmonton , 2000 ABCA 324 ; Gedge v. Newfoundland & Labrador , 2011 NLCA 50 ; Eckervogt v. British Columbia , 2004 BCCA 398 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 Philip Jones, Q.C. and Anne S. de Villars, Q.C., Principles of Administrative Law , 6th ed., (Edmonton: Thomson Reuters, 2014); Donald J. M. Brown & John M.

Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada Limited, 2021) REASONS FOR JUDGMENT Marshall, J. : INTRODUCTION [ 1 ] Pursuant to

section 46 of the Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 (the “ Act ”), Trak Developers Inc. (“Trak”) appeals a decision of the Eastern Newfoundland Regional Appeal Board (the “Board”), dated October 8, 2020. [ 2 ] The Board dismissed Trak’s appeal of a decision of the Town of Portugal Cove - St. Philip’s (the “Town”) to reject Trak’s application for a development permit for a residential subdivision within the Town’s boundaries.

BACKGROUND FACTS [ 3 ] The background facts are not in dispute. [ 4 ] On January 15, 2014, Trak submitted an application with the Town seeking to develop a residential subdivision (the “Development Application”). When Trak submitted the Development Application, the Town’s municipal plan and development regulations were from 2004 (the “2004 Plan”). [ 5 ] On October 17, 2014, the Town implemented a new municipal plan along with new development regulations (the “2014 Plan”).

[ 6 ] In December of 2014, Trak’s Development Application received approval in principle from the Town. The Development Application was approved under the 2014 Plan. In early January of 2015, Trak received correspondences from the Town attaching conditions to the approval of the Development Application (the “Town’s 2015 Decision”). According to Trak, the conditions had the effect of reducing the number of lots available for development. [ 7 ] Later in January of 2015, Trak filed an appeal with the Board respecting the Town’s 2015 Decision.

In appealing the Town’s 2015 Decision, Trak submitted to the Board that its Development Application should have been considered by the Town under the 2004 Plan, not the 2014 Plan. [ 8 ] On August 14, 2015, the Province’s Department of Environment and Conservation released a new provincial flood risk mapping (the “2015 Flood Risk Mapping”).

This new 2015 Flood Risk Mapping was not the same flood risk mapping in force when Trak had originally submitted its Development Application in January of 2014; and it was not in force when Trak had been issued approval in principle from the Town. [ 9 ] On October 1, 2015 the Board heard Trak’s appeal of the Town’s 2015 Decision. On October 12, 2015, the Board’s decision was released (the “Board’s 2015 Decision”). That decision was in favour of Trak, vacating the Town’s 2015 decision.

Specifically, in the Board’s 2015 Decision, the Board vacated the Town’s 2015 Decision regarding Trak’s Development Application; and the Board directed the Town to reconsider that application under the 2004 Town Plan, because the 2004 Plan was the plan in effect at the time Trak’s application was initially made (page 29 of the Board’s 2015 Decision). [ 10 ] On March 15, 2017, the Town communicated to Trak (via correspondence) the Town’s decision made following its reconsideration of Trak’s Development Application. In the Town’s 2017 Decision, the Town decided to again reject Trak’s Development Application.

In its correspondence, the Town indicated that the Development Application was reconsidered under the 2004 Plan (and regulations), as was directed by the Board in the Board’s 2015 Decision. However, in so doing, the Town applied the 2015 Flood Risk Mapping, and rejected the Development Application. [ 11 ] More specifically, pursuant to its correspondence to Trak, the Town’s 2017 Decision stated, as follows: “Dear Mr. Stapleton: At a meeting of the Portugal Cove-St.

Philip’s Town Council, held March 14th, 2017, your application to subdivide property and construct a residential subdivision at Civic # 12-16B Mercers Road was presented and reviewed, and it was resolved by Council that your application be rejected. Your application was reviewed under the 2004 Municipal Plan & Development Regulations in accordance with a directive from the Eastern Newfoundland Regional Appeal Board on October 1 st , 2015 that required the Town to reconsider this application under the 2004 Town Plan.

The proposal submitted to the Town is contrary to Provincial Legislation and the Town’s 2004 Municipal Plan & Development Regulations, specifically:

a) Policy 6.04 (Project Classifications) of the Department of Environment and Climate Change’s Policy for Flood Risk Management which does not permit residential projects within the 1:20 year flood zone. Proposed residential building lots within the subdivision will be partially located within 1:20 year flood risk area identified on the Department of Environment and Climate Change’s Flood Risk Mapping.

b) Plan Policy 3.3 (viii) (Soils and Drainage) which states that Development shall only be permitted on lands having soil and drainage conditions that are suitable to permit the proper siting and development of the proposed uses. The proposed residential subdivision will be partially located within 1:20 and 1:100 year flood risk areas identified on the Department of Environment and Climate Change’s Flood Risk Mapping.

c) Plan Policy 3.3 (v) (Environmental Preservation and Enhancement) which states that the Policy of preserving the natural environment will be extended to all natural systems within the Planning Area, including aquifer recharge areas, natural drainage systems and wildlife, plant and fish habitats. The proposed residential subdivision will be partially located within 1:20 and 1:100 year flood risk areas identified on the Department of Environment and Climate Change’s Flood Risk Mapping.

d) Development Regulation 73 (Issue of Permit Subject to Considerations) which states that in considering an application, the Authority shall, without limiting the generality of the foregoing, consider:

a) The location of the land;

b) The availability of and the demand created for schools, services, and utilities;

c) The provisions of the Plan and Regulations affecting the site;

d) The land use, physical form and character of adjacent developments;

e) The transportation network and traffic densities affecting the site;

f) The relationship of the project to existing or potential sources of nuisance;

g) Soil and subsoil characteristics;

h) The topography of the site and its drainage;

i) Natural features such as lakes, streams, topsoil, trees and shrubs;

j) Prevailing winds;

k) Visual qualities;

l) Community facilities;

m) Energy conservation;

n) Such other matters as may affect the proposed development. The proposed residential subdivision will be partially located within 1:20 and 1:100 year flood risk areas identified on the Department of Environment and Climate Change’s Flood Risk Mapping.

e) Development Regulation 10(1) (Discretionary Powers of Authority) which states that in considering an application for a permit or for approval in principle to carry out development, the Authority shall take into account the policies expressed in the Municipal Plan and any further scheme, plan or regulations pursuant thereto, and shall assess the general appearance of the development of the area, the amenity of the surroundings, availability of utilities, public safety and convenience, and any other considerations which are, in its opinion, material, and notwithstanding the conformity of the application with the requirements of these Regulations, the Authority may, in its discretion, and as a result of its consideration of the matters set out in this Regulation, conditionally approve or refuse the application.

The proposed residential subdivision will be partially located within 1:20 and 1:100 year flood risk areas identified on the Department of Environment and Climate Change’s Flood Risk Mapping,

Section 2 (Objectives) of the Water Resources Management Division’s Policy for Flood Plain Management identifies potential public safety concerns related to development within identified Flood Risk Areas. Conditions Subject to Approval You have a right to appeal this decision under Section 42(1) of the Urban and Rural Planning Act, 2000 . The appeal and a fee of $200.00 plus HST must be submitted to the Secretary of the Appeal Board at the Department of Municipal Affairs, 1 st floor Confederation Building (West Block) P.O. Box 8700, St.

John’s, NL, A1B 4J6, within 14 days after the person who made the original application appealed from has received the decision being appealed (as per Section 42(4) of the Act ). If the appeal and fee are not submitted within this time limit, your right to appeal is considered to be forfeited. You should note that any interested person also has the right to appeal the decision regarding your application within the 14 day appeal period. If you have any questions related to the above information, please contact the Planning & Development Department at 895-8000.

Sincerely, (Sgd.) Les Spurrell Planning & Development Coordinator” [ 12 ] As stated, the Town’s 2017 Decision engaged the Province’s new 2015 Flood Risk Mapping, and further referred to the Town’s discretionary powers under development regulation 10(1) to refuse an application for various reasons, including public safety. [ 13 ] Trak filed an appeal with the Board of the Town’s 2017 Decision.

Trak’s position on appeal was that the Town’s second rejection of the Development Application was erroneously based on the 2015 Flood Risk Mapping, which was not in effect at the time the Town had initially considered the application. According to Trak, the Town acted contrary to the Board’s 2015 Decision by considering the 2015 Flood Risk Mapping. [ 14 ] On October 7, 2020, the appeal of the Town’s 2017 Decision was heard before the Board. The Board’s decision was issued on October 8, 2020.

This second decision of the Board respecting Trak’s Development Application (the “Board’s 2020 Decision”) is the Board’s decision considered by the Court in this appeal. [ 15 ] In the Board’s 2020 Decision, the Board confirmed the Town’s 2017 Decision to reject Trak’s Development Application (page 9 of the Board’s 2020 Decision).

The Board concluded that the Town had the authority to deny Trak’s Development Application, on the basis that a portion of the proposed subdivision would be partially located in the flood risk areas, in accordance with the 2015 Flood Risk Mapping; and further that the Town had acted in compliance with the Board’s 2015 Decision, by reconsidering the application in accordance with the 2004 Plan and development regulations (page 8 of the Board’s 2020 Decision).

Trak’s appeal of the Board ’ s 2020 decision [ 16 ] Pursuant to section 46(2) of Act , the Board’s decisions can be appealed on questions of law or jurisdiction. [ 17 ] Trak’s appeal to the Court is primarily based on an alleged denial of procedural fairness by the Board at the 2020 hearing.

Specifically, Trak asserted that the Board’s breach of the duty of procedural fairness arose from: an unreasonable curtailing of cross- examination; the format of the hearing; denying Trak the opportunity to bring forward additional evidence; and a reasonable apprehension of bias in respect of the Board’s composition. [ 18 ] A further issue raised by Trak in its appeal was whether the Board erred by allowing the Town to use the 2015 Flood Risk Mapping, when the Town reconsidered the Development Application.

STANDARD OF REVIEW [ 19 ] Trak and the Town agreed that the standard of review is correctness with respect to the errors alleged by Trak in this appeal. [ 20 ] In Barron v. Eastern Newfoundland Regional Appeal Board , 2021 NLSC 150 , this Court indicated that the appellate standard of review applies to Board decisions, as it is described by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , and Housen v. Nikolaisen , 2002 SCC 33 .

At paragraphs 24 and 25 of Barron , the Court stated, as follows: 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.

[21] Trak has alleged that the Board erred by allowing the Town to use the 2015 Flood Risk Mapping, and/or by allowing the Townto not follow the Board’s 2015 Decision. This ground of appeal is, in my view, an alleged error of law. As such, it is subject to thestandard of review of correctness (Barron, at paragraph 25). [22] With respect to the procedural errors alleged by Trak as grounds of appeal, I refer to Aylward v.

Law Society of Newfoundlandand Labrador, 2013 NLCA 68, in which the Court of Appeal stated that the Court does not need to determine the appropriate standard ofreview when a party alleges a breach of the duty of procedural fairness. The Court of Appeal stated this at paragraph 19 of Aylward, asfollows: 19 Where a party alleges a breach of the duty of procedural fairness, the Court does not need to engage in an assessment of theappropriate standard of review: Moreau-Bérubé c. Nouveau-Brunswick, 2002 SCC 11, [2002] 1 S.C.R. 249 (S.C.C.) at para. 74.

If thetribunal being reviewed failed to accord appropriate procedural safeguards to an interested party, the decision must be set aside. Khosa v.Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para. 43. See also McAdam v. LawSociety (Newfoundland & Labrador), 2010 NLTD 39, 302 Nfld. & P.E.I.R. 284 (N.L. T.D.), at para. 11, citing I.B.E.W., Local 894 v.Ellis-Don Ltd., 2001 SCC 4, [2001] 1 S.C.R. 221 (S.C.C.) at para. 65. [23] In Flynn v.

Newfoundland and Labrador, 2018 NLSC 29, the Court determined that a breach of the duty to be fair is an errorwhich is “jurisdictional in nature”. On this, the Court referenced the text by David Philip Jones, Q.C. and Anne S. de Villars, Q.C.,Principles of Administrative Law, 6th ed., (Edmonton: Thomson Reuters, 2014, at 263), and the Court stated at paragraph 17 of Flynn, asfollows: 17 Natural justice is a legal concept which requires fairness in the process of decision-making. Judicial review is used to control theprocedure utilized to exercise legislative powers.

If the Court finds a breach of the duty to be fair, the delegate’s actions (and thedecision) are void because the error is jurisdictional in nature (David Philip Jones, Q.C. & Anne S. de Villars, Q.C., Principles ofAdministrative Law, 6th ed. (Edmonton: Thomson Reuters, 2014 at 263). [24] Further, at paragraph 18 in Flynn, the Court again referred to Principles of Administrative Law and stated that the “the scopeand extent of procedural fairness will vary by the circumstances and the subject matter of the case”.

Such analysis requires considerationof what has become known as the “Baker factors” from the Supreme Court of Canada’s decision in Baker v. Canada (Minister ofCitizenship & Immigration), 1999 SCC 699. These factors are described at paragraphs 23 to 27 of Baker, as follows: 23 Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty ofprocedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the processfollowed in making it.

In Knight, supra, at p. 683, it was held that "the closeness of the administrative process to the judicial processshould indicate how much of those governing principles should be imported into the realm of administrative decision making". The morethe process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be madeto reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will berequired by the duty of fairness. See also Old St. Boniface, supra, at p. 1191; Russell v.

Duke of Norfolk, [1949] 1 All E.R. 109 (Eng.C.A.) at p. 118; Syndicat des employés de production du Québec & de l'Acadie v. Canada (Human Rights Commission), (SCC), [1989] 2 S.C.R. 879 (S.C.C.) at p. 896, per Sopinka J. 24 A second factor is the nature of the statutory scheme and the "terms of the statute pursuant to which the body operates": Old St.Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in thestatute help determine the content of the duty of fairness owed when a particular administrative decision is made.

Greater proceduralprotections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinativeof the issue and further requests cannot be submitted: see D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action inCanada (loose-leaf), at pp. 7-66 to 7-67. 25 A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individualor individuals affected.

The more important the decision is to the lives of those affected and the greater its impact on that person or thosepersons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he thenwas) 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. As Sedley J. (now Sedley L.J.) stated in R. v.

Higher Education Funding Council (1993), [1994] 1 All E.R. 651 (Eng. Q.B.), at p. 667: In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people's lives than thedecisions of courts, and public law has since Ridge v. Baldwin, [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact.

While thejudicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example byrequiring contentious evidence to be given and tested orally, what makes it "judicial" in this sense is principally the nature of the issue ithas to determine, not the formal status of the deciding body.

The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty ofprocedural fairness. 26 Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty offairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or naturaljustice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (Canada), (SCC), [1991] 2 S.C.R. 525 (S.C.C.) at p. 557.

As applied in Canada, if a legitimate expectation is found to exist, thiswill affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has alegitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada(Minister of Citizenship & Immigration) (1995), 33 Imm. L.R. (2d) 57 (Fed. T.D.); Mercier-Néron v. Canada (Minister of NationalHealth & Welfare) (1995), 98 F.T.R. 36 (Fed. T.D.); Bendahmane v. Canada (Minister of Employment & Immigration), (FCA), [1989] 3 F.C. 16 (Fed. C.A.).

Similarly, if a claimant has a legitimate expectation that a certain result will be reached in hisor her case, fairness may require more extensive procedural rights than would otherwise be accorded: D.J. Mullan, AdministrativeLaw (3rd ed. 1996), at pp. 214-15; D. Shapiro, "Legitimate Expectation and its Application to Canadian Immigration Law" (1992),8 J.L. & Soc. Pol'y 282, at p. 297; Canada (Attorney General) v. Canada (Human Rights Tribunal) (1994), (FC), 76F.T.R. 1 (Fed. T.D.). Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the proceduraldomain.

This doctrine, as applied in Canada, is based on the principle that the "circumstances" affecting procedural fairness take intoaccount the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act incontravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. 27 Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices ofprocedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures,or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, atpp. 7-66 to 7-70.

While this, of course, is not determinative, important weight must be given to the choice of procedures made by theagency itself and its institutional constraints: I.W.A. Local 2-69 v. Consolidated Bathurst Packaging Ltd., (SCC), [1990]1 S.C.R. 282 (S.C.C.), per Gonthier J. [25] The foregoing principles shall be applied. The analysis will commence by considering the procedural errors raised by Trak. DID THE BOARD BREACH ITS DUTY OF PROCEDURAL FAIRNESS? [26] Trak submitted that the Board breached its duty of procedural fairness owed to Trak.

It is necessary to consider the Bakerfactors in order to determine the content of the duty of fairness owed to Trak in this matter. [27] To begin with, as was determined in Barron (at paragraph 47), I am satisfied that the Board’s proceedings are similar to courtproceedings, and that the nature of the Board’s decision making process is close to judicial decision making. Specifically, the Board’srules of procedures indicate that proceedings are recorded, the parties present their cases, witnesses may be called, there may be cross-examination, and submissions are made by the parties.

I find that the Board’s procedures further created the legitimate expectation thatsignificant procedural protections should have been afforded to Trak, so as to permit Trak to fully present its case to the Board at thehearing. [28] As well, the importance of the Board’s decision to Trak, inasmuch as the decision impacts on whether its developmentproceeds, is another factor weighing in favour of significant procedural protections being afforded to Trak. I balance this against thestatutory scheme, which provides a means of appeal.

Overall, the Baker factors seem to weigh in favour of finding that Trak should havebeen afforded significant procedural protections at the hearing. [29] Further on this, and specifically with respect to Trak’s concerns regarding curtailing of cross-examination, the Town submittedthat the Court must pay particular attention to the fifth Baker factor. The Town submitted that in accordance with the fifth Baker factor,the Court should give “important weight” not only to the Board’s choice of procedures, but also its institutional and jurisdictionalconstraints.

The Town submitted that the only limitations imposed by the Board on Trak’s cross-examination were for the purpose ofconfining cross-examination to matters of relevance, in light of the issues engaged by the appeal and the limited jurisdiction of theBoard. [30] With respect to these jurisdictional constraints, pursuant to section 42(1)(

a) of the Act the Board has jurisdiction to hear anappeal of a municipality’s decision regarding “an application to undertake a development”. The Town submitted that the Board’sjurisdiction is limited to determining whether the Town’s decision was made in accordance with the Town’s plan, scheme anddevelopment regulations. Section 42(3) of the Act states, as follows: 42.

(3) An appeal board shall not make a decision that does not comply with a plan, scheme and development regulations thatapply to the matter being appealed. [31] Further, the Town noted that the Board cannot overturn discretionary decisions made by the Town. The Town referred tosections 42(10) and 42(11) of the Act, which state, as follows: 42.

(10) In determining an appeal, a board may confirm, reverse or vary the decision appealed from and may impose thoseconditions that the board considers appropriate in the circumstances and may direct the council, regional authority or authorizedadministrator to carry out its decision or make the necessary order to have its decision implemented.

(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. [ 32 ] In addition, the Town submitted that the issues before the Board are limited by their jurisdiction, and are generally document- driven and focussed issues.

In this matter, the issues were to be analyzed by the Board in light of the Development Application, the Town’s 2017 Decision, the Board’s 2015 Decision and the Town’s governing documents. [ 33 ] Further on this point, the Town submitted that limitations on the relevant issues to be considered by the Board are contained within the Board’s rules of procedure. Specifically, rules 3, 10(a), and 10(

e) state, as follows: 3. Before hearing an appeal, the members of the Appeal Board hearing that appeal shall thoroughly acquaint themselves with the provisions and intent of the Legislation, Regulations, Plans, Schemes, and Orders that bear upon the case. … 10. The Hearing will proceed in the following matters: (

a) there shall be a technical advisor to the Board who shall provide data relative to the Municipal Plan or other Scheme in effects and an

interpretation on whether or not the proposal under appeal conforms, is contrary to, or could be discretionarily approved pursuant to the Municipal Plan, Scheme or Regulations in effect. … (

e) the respondent will be asked to state the regulations or legislation authorizing the decision from which the appeal was made and to read any relevant sections; to state the grounds for the decision being appealed from; to comment on the circumstances and merits of the case, and the respondent may call witnesses; [ 34 ] The Town also noted section 42(8) of the Act , which states: 42.

(8) A board may inform itself of the subject matter of the appeal in the manner it considers necessary to reach a decision. [ 35 ] Finally, the Court was referred to

section 12 of the Board’s rules of procedure which gives the Board the discretion to hold a subsidiary hearing, if the Board determines additional information is required.

Section 12 of the Board’s rules states, as follows: 12. Immediately following an Appeal Hearing or as soon as possible, the Appeal Board shall discuss the appeal and reach a consensus.

If, after discussion, it is decided that further information is required before a decision can be reached, the appeal may be deferred until a subsidiary hearing is held or until the required information becomes available, which information shall be communicated to all parties for comment prior to any decision being made. [ 36 ] The Town submitted that the limited jurisdiction of the Board suggests that issues of credibility are rarely relevant at Board hearings. However, Trak did raise an issue of credibility at the hearing when Mr.

Robert Stapleton, on behalf of Trak, indicated in the course of cross-examination that he wanted to submit documents contradicting the evidence of one of the Town’s witnesses (page 45 of the transcript). This will be considered when discussing the format of the hearing. [ 37 ] As directed in Baker , I accept that institutional constraints are a relevant consideration when assessing the allegations of breach of the duty of procedural fairness.

The jurisdictional limitations of the Board, as described by the Town, become engaged in the analysis of the grounds of appeal raised. [ 38 ] I conclude that overall, the Baker factors weigh in favour of finding that Trak should have been afforded significant procedural protections at the Board’s hearing. Trak’s allegation of “curtailed” cross-examination [ 39 ] When assessing Trak’s allegation that the Board curtailed cross-examination, it is necessary to consider context, and the issue before the Board at the 2020 hearing. [ 40 ] I first refer to Trak’s characterization of its position before the Board.

This was presented by Trak’s director, Robert Stapleton, who stated at the hearing (at pages 15 and 16 of the transcript) as follows: Our current – our position on the current appeal before the Appeal Board is that the Authority did not adhere to the October 12 th , 2015 decision of the Eastern Regional Appeals Board in which they were directed to review our application under the 2004 municipal plan and development regulations.

[ 41 ] At the Board hearing (pages 28 to 29 of the transcript), and in Court, the Town acknowledged that the updated 2015 Flood Risk Mapping was not the same as the Town’s flood risk mapping previously in effect when Trak’s Development Application was submitted in January of 2014. [ 42 ] Consequently, the issue before the Board was whether the Town adhered to the Board’s 2015 Decision, or whether the Town erred by engaging the 2015 Flood Risk Mapping when reconsidering Trak’s Development Application under the 2004 Town Plan and regulations. [ 43 ] Trak referred to several excerpts from the transcript of the 2020 Board hearing, as examples of the Board’s allegedly curtailing Trak’s cross-examination of the Town’s witness, Mr.

Les Spurrell. In the following excerpts from the transcript, I will bold the portions identified by Trak (in its brief) as examples of such curtailing, but will provide further context from the transcript (as was provided in the Town’s brief). [ 44 ] The first example of alleged curtailing of cross-examination, as provided by Trak, is contained in bold in the following excerpt, from pages 34 to 36 of the transcript MR. STAPLETON: … Q. Would you be in a position to know if a legal opinion was sought by the Authority in regards to the issues contained in this appeal? A. No. Q.

You wouldn’t be in a position to know if a legal opinion was sought? A. No, I’m not familiar. Q. No, that’s not – A. Not that I know of. Q. So, do you know if a legal opinion has been sought with regard to this issue? A. I just answered the question. I can repeat it again. No, and not that I’m aware of. Q. Is it normal practice of the Authority to proceed with such decisions in conflict of an Appeals Board ruling without the benefit of a legal counsel, opinion of a legal counsel? A. That’s questions you need to direct to Council. I’m not in a capacity to basically answer that or nor can I answer it basically. Q.

So, the Authority doesn’t have someone of management appearing at this appeal to be able to answer relevant questions, Mr. Chairman? CHAIRMAN: Q. Well, we know who’s in attendance and who’s speaking on behalf of the Town. Mr. Spurrell and Ms. Lenehan are here on behalf of the Town who have both been sworn in.

MR. STAPLETON: Q. Yeah, and I – well, I note that they swore an oath, sir, to give information to the best of their knowledge and all of that sort of stuff. CHAIRMAN: Q. Yes. MR. STAPLETON: Q. And this, I would imagine that if you are the coordinator, the person responsible for the day-to-day operations of a department that you would know the answers to these questions, and I don’t think – you know, you should know the normal practices of the Authority.

When you’re there from Monday to Friday, 8 to 4:30, and you’re the person that is responsible for the coordination of planning and development for the community, you ought to know the answer to that question, and if you’re refusing it, then you have knowledge – you certainly have the knowledge and you’re not abiding by the oath that you swore to in this hearing. You know, I’d like for you to direct the individual to answer the question, Mr. Chairman. CHAIRMAN: Q. I believe that Mr. Spurrell has provided an answer and has provided an answer to the best of his knowledge.

Do you want to carry on with your questions, Mr. Stapleton, please? [ 45 ] As submitted by the Town, the tenor of the foregoing cross-examination was whether the Town had obtained legal advice on the matter. I agree with the Town that such was irrelevant to the issue before the Board. I do not consider the foregoing as unreasonable curtailing of cross-examination. [ 46 ] This next example from Trak is bolded in the following excerpt of an exchange during Mr. Stapleton’s cross-examination of Mr. Spurrell, from page 37 of the transcript: MR. STAPLETON: Q. Okay.

Do you consider this appeal of the – do you consider this appeal hearing an appeal of the October 12 th , 2015 decision of the original Appeals Board? CHAIRMAN: Q. Mr. Spurrell? A. Yes. Again, if that’s the correct date, yes, that is an appeal. MR. STAPLETON: Q. The question is: do you consider the appeal hearing today to be an appeal of the October 12 th decision of the Eastern Regional Appeals Board?

A. I think, Mr. Chair, that’s one for the Board to answer. You know, that’s my understanding that we are here on an appeal. CHAIRMAN: Q. Okay, Mr. Stapleton, do you want to carry on, please, with your questions? [ 47 ] Again, I do not consider the foregoing to have been an inappropriate curtailing of cross-examination. The question put to the witness appears to be irrelevant. In any event, the witness’ response was sufficient. [ 48 ] Trak further referred to the following exchanges as contained in bold, in this next portion of the transcript (at pages 47 to 50), as follows: MR. STAPLETON: Q. I will do that.

Thank you very much, Mr. Chairman. So, on I go. So, do you know of any development of any kind that was approved by the previous Town Council that did not comply with the requirements of the August 2015 flood risk mapping requirements? A. No, not that I know of. Q. Do you know of any development of any kind that was approved by the previous Town Council that did not comply with the Town plan or development regulations and in fact received a recommendation to reject from the department you lead? A. No. Q.

Are you aware of a document that was circulating during the last election that showed up to 65 or 70 instances where your department recommended rejections to approvals based on numerous Town plan and development regulation issues and they were subsequently approved by the Town Council? You’re not aware of that document? Was it brought to your attention? A. Mr.

Chair, I’d just like – those questions basically, you know, is depending on my memory basically from many years and you know, I think it’s outside of basically specifically the appeal that’s at hand right now, and again, I just want to go back and basically say I’m here to represent Council and certainly Council at that time to basically just give information to Council’s decision and that’s exactly what I have done basically.

You know, to recollect specifics, you know, throughout the years, certainly without time and those requests put in so we can address each one of them, it’s really, you know, I would say not right for me to basically be caught up in that type of questioning and I don’t think this, the Appeal Board setup is the right place for it. CHAIRMAN: Q. Okay. All right. Fair enough. Mr. Stapleton, I think if you have further questions, I think it would be appropriate that they be directed to the matter under appeal, the development for Mercer’s Road.

So, do you have any further questions for the Town regarding the specific appeal that’s before the Board this morning? MR. STAPLETON:

Q. Yes, I do. I have to sort through them, Mr. Chairman. So, I’d ask for some time to do that. I object to the objection. I don’t think it’s correct. I think the memory should be there, you know, and should be able to answer the questions. We’re all here just to get to the bottom of the matter basically and they’re just simple questions. They’re yes or no. I object to the refusal to answer the questions. And I guess, it does go to the matter of the specific appeal and it goes to the Council at the time and their adherence to proper policies and procedures and guidelines and the Town plan, for instance.

So, when I say “do you know of instances where the Town plan was blatantly ignored by the Town Council and specifically when you told them you’re ignoring the Town plan and development regulations”, I think it’s relevant to go to the mindset of the Council of the day. So, I think it’s – and being it relevant to the mindset of the Council of the day is relevant to the mindset of the people that made this decision in March of 2017 and refused our application. CHAIRMAN: Q. Okay. MR. STAPLETON: Q. And what it goes to, I guess, is that they don’t care about rules. They don’t care about regulations. CHAIRMAN: Q.

Okay, Mr. Stapleton. I’m going to cut you off at that point. I’m going to ask: do you have any further questions on the specifics of the development application that’s under appeal? MR. STAPLETON: Q. I’m reviewing there, Mr. Chairman, if I could have a moment, please? CHAIRMAN: Q. Yeah. [ 49 ] Again, I do not consider the foregoing comments of the Chair to be inappropriate curtailing of cross-examination, or causing unfairness to Trak at the hearing. Rather, the Chair is endeavouring to focus Mr.

Stapleton on the issue before the Board. [ 50 ] Trak further referred to the following excerpt (in bold) as contained in this portion of the transcript, at pages 53 to 55: MR. STAPLETON: Q. Okay. So, one other question. How many permits and houses had been built before the 2014 flood risk mapping in the Town of Portugal Cove-St. Phillips? A. Mr. Chair, Board members, again, these are all prescribed questions that are prepared in well advance which, you know, (unintelligible) is the information and data that we would need to collect in order to give an answer. CHAIRMAN:

Q. Yeah, I’m inclined to agree with you, Mr. Spurrell. Mr. Stapleton, I’m going to – if there’s any further questions on thespecific development? I’m going to give you an opportunity for one last question and then we’re going to go to see if the Boardhas questions. MR. STAPLETON: Q. I guess on a clarification of that question, Mr. Chairman, the simple answer is all of them. Every house, every development inthe Town of Portugal Cove-St. Phillips was done and built – was built before 2015 flood risk mapping. CHAIRMAN: Q. Okay. Well, that – MR. STAPLETON: Q. Every one of them was built. CHAIRMAN: Q. All right.

Thank you. That’s a statement, rather than a question. Do Board members have questions for the Town’srepresentatives? [51] Again, I do not consider the foregoing comments of the Chair as unreasonably curtailing cross-examination. The Chair againappears to be trying to focus Mr. Stapleton’s cross-examination on the issue before the Board, rather than on an irrelevant course ofinquiry. [52] To summarize, with respect to all of the foregoing excerpts, I agree with the Town that the cross-examination by Mr. Stapletondid indeed stray away from the issue before the Board, and into irrelevant matters.

Further, as submitted by the Town, cross-examinationcannot carry on to the extent that the Board is to be prevented from either recognizing the limits of its jurisdiction, or restricting cross-examination to the matters in dispute. At the same time, however, the Board must recognize that broad leeway is permitted with respectto cross-examination. [53] On this, I refer to the following excerpt from the text by Donald J. M. Brown, Q.C. and John M.

Evans, Judicial Review ofAdministrative Action in Canada (Toronto: Thomson Reuters Canada Limited, 2021), in which the authors recognize the importance ofcross-examination to the duty of fairness in administrative proceedings.

At § 10:54, the authors stated as follows: Accordingly, and although administrative agencies are often said to be masters of their own procedure, the duty of fairness will generallyrequire that persons with a right to an oral hearing be afforded the right to cross-examine witnesses, and it has been held that suchwitnesses be under oath. [54] Brown and Evans further state that an administrative tribunal may limit cross-examination “in order to keep the proceedingswithin reasonable bounds”.

They stated this at § 10:58, as follows: As part of its control of the conduct of its hearings, a tribunal has the discretion to limit cross-examination in order to keep theproceedings within reasonable bounds. Accordingly, it is open to a tribunal to limit cross-examination on an irrelevant matter, to preventharassment, to protect confidential information, or so as not to compromise parallel criminal proceedings. [55] Further on this, as referenced by the Town, the Alberta Court of Appeal in Kirchmeir v.

Edmonton, 2000 ABCA 324recognized that cross-examination on irrelevant matters need not be permitted by an administrative tribunal. They stated this atparagraph 21, as follows: … Although there is no statutory provision for the cross-examination of witnesses, the LERB did permit Dr. Kirchmeir to cross-examinethe Staff Sergeant. While a tribunal is obliged to permit cross-examination to controvert prejudicial evidence on a vital issue, repetitiouscross-examination on matters of doubtful relevance need not be permitted: Murray v.

MD Rockyview (DAB) (1980), 1980 ABCA 113, 21 A.R. 512 (C.A.), at para. 41-42. [56] Based on the foregoing, I am satisfied that the Board acted reasonably by “curtailing” Trak from conducting cross-examinationon matters which were irrelevant to the issue before the Board. As submitted by the Town, the Board was restricted to its jurisdiction,and to matters relevant to the issue before it. Trak’s examples of the Board “curtailing” cross-examination do not reflect an unreasonable

curtailing of cross-examination by the Board. [ 57 ] To conclude, after carefully reviewing the entire transcript, and considering the specific examples raised by Trak, I am satisfied that Trak was afforded a reasonable opportunity to cross-examine the witnesses. Mr. Stapleton was only “curtailed” on matters which were clearly irrelevant to the issues, and the jurisdiction of the Board. I am satisfied that the Board acted reasonably in its conduct of the hearing in this regard. There is no apparent breach of the duty of procedural fairness arising from Trak’s cross-examination at the hearing.

The format of the hearing [ 58 ] Trak further submitted that the format of the hearing must also be considered when assessing whether there was a breach of the duty of procedural fairness. Particularly, Trak raised concerns respecting the Board’s response to Mr. Stapleton’s attempt to challenge the credibility of one of the Town’s witnesses. [ 59 ] The Board’s response to Mr. Stapleton’s attempt to challenge the credibility of one of the Town’s witnesses, Mr. Spurrell, is contained in bold within the following exchange from pages 44 to 46 of the transcript: CHAIRMAN: Q. Okay, Mr. Stapleton? MR. STAPLETON: Q.

I’d like to ask a question, and I find it to be fairly simple to answer. But, in March of 2017 when the refusal was done, did the environmental overlay include the flooding indication of the August of ’15 flood risk mapping? In 2017, when the decision was made to refuse our permit and not abide by the Appeals Board ruling, had it been updated at that point in time? A. Yes. Q. Wow, okay. CHAIRMAN: Q. Mr. Stapleton, did you get that response? MR. STAPLETON: Q. I got the response, Mr.

Johnston, and I got – I’m going to be wanting to be able to submit further evidence contrary to that statement to this appeal process. I am going to – I’m going to be submitting contrary evidence to that fact. CHAIRMAN: Q. You can submit it, Mr. Stapleton, but I will advise you that the requirement for Appeal Boards is that we meet immediately after the appeal hearing concludes to discuss the appeal and to prepare our written decision. So, whether we have it from you or whether we have time to review it, your submission will need to be considered. MR. STAPLETON: Q. Okay, Chairman.

CHAIRMAN: Q. Any further questions? MR. STAPLETON: Q. I’d like to – I do have other questions. I’d just like to point out that as I spoke in my

preamble, I guess, to this hearing, that’s one of the challenges now that we’re being faced with because of this methodology of the hearing. CHAIRMAN: Q. Yes. MR. STAPLETON: Q. I had that document that proves what Mr. Spurrell is saying is not the case in my package here. If we were sitting in the same room, I could hand it over to you right now for consideration. CHAIRMAN: Q. Well, if you wish, Mr. Stapleton, I mean, you have the opportunity to email that to Mr. Kotter, who is here with us at the moment and he can distribute that to us.

You should – if you – if that is what you decide to do, you should also send that to the Town representatives, so that they have the same information. [ 60 ] The foregoing excerpt from the transcript suggests that Mr. Stapleton wanted to challenge the credibility of Mr. Spurrell’s response regarding whether the environmental overlay mapping for the Town included the new 2015 Flood Risk Mapping, at the time of the Town’s 2017 Decision; and Mr. Stapleton wanted to provide the Board with a document to assist with Trak’s challenge of Mr.

Spurrell’s credibility. [ 61 ] The concern raised by Trak is with respect to the response by the Chair, in light of the format of the hearing. Specifically, the Chair’s response that Mr. Stapleton could submit the document, but the Board was required to meet “immediately” after the hearing for the purposes of discussing the appeal, and preparing the Board’s decision. [ 62 ] In other words, the Chair appeared not to be concerned as to whether the Board received the document, even though Mr. Stapleton had suggested that the document would contradict the Town’s witness.

The Chair did not say that the line of questioning was irrelevant. Rather, the Chair seemed to suggest that the Board was constrained by the requirement to meet after the hearing to make the decision; and no regard was given to the constraints of the hearing being conducted by teleconference. [ 63 ] As further context, the matter proceeded by teleconference due to pandemic restrictions. Further, at the beginning of the hearing Mr.

Stapleton was told by the Chair that the Board usually schedules appeals to be heard within the space of one hour; and the Chair asked if the parties thought that an hour was sufficient time to deal with the appeal (page 7 of the transcript). [ 64 ] Mr. Stapleton, on behalf of Trak, proceeded to forewarn the Board of his concerns regarding the format of the hearing if the issue of “flood risk mapping and various versions of flood risk mapping” arose. He stated this at page 8 of the transcript, in the following exchange: MR. STAPLETON: Q.

I feel if we’re going to stick to the basis of the appeal, which is the Town didn’t abide by the previous decision of the Appeals Board, if we get into flood risk mapping and various versions of flood risk mapping and stuff, I find this methodology of a hearing to be difficult to assess various types of mapping and so forth and versions of mapping.

CHAIRMAN: Q. Yes. MR. STAPLETON: Q. So, if it’s – so, I guess I’ve made my statement. CHAIRMAN: Q. Okay, thank you. We will proceed and we’ll judge accordingly as we move forward for the appeal… . [ 65 ] As submitted by Trak, Mr. Stapleton’s concerns regarding the format of the hearing came to fruition; and was evidenced by the exchange and the response of the Chair, as contained in bold in the above-described excerpt from pages 44 to 46 of the transcript.

I agree that this response by the Chair did indeed suggest a nonchalance and unwillingness, on the part of the Board, to accommodate in circumstances where the hearing was conducted through teleconference. [ 66 ] Further, Mr. Stapleton was entitled to attempt to contradict and challenge the witness’ credibility. Mr. Stapleton was not told that he could not enter the document.

As well, he was not told that the issue on which he was seeking to challenge credibility was irrelevant. [ 67 ] In the meantime, as I will discuss later in this decision, the status of the environmental overlay mapping was not proven to be relevant to the issue before the Board. Nonetheless, considering the format of the hearing, in my view the Chair’s nonchalant response to Mr. Stapleton could have resulted in a breach of the duty of procedural fairness.

However, I find that there was ultimately no breach of the duty of procedural fairness in this regard. [ 68 ] To elaborate, as noted by Trak in its submissions at the Court hearing, Mr. Stapleton did indeed email the document to the Board before the end of the hearing. That document appears to be the document contained within the appeal record (at tab 3). From the record, that emailed document has the subject “2014 E.P.O. mapping”. Further, the transcript also confirmed that the document was emailed to the Board (via Mr. Cotter) before the end of the hearing (page 64 of the transcript). Mr.

Stapleton also made submissions regarding same (pages 64 to 65 of the transcript). [ 69 ] In my view, if Mr. Stapleton had been prevented from emailing the document in the course of the hearing, then the duty of procedural fairness owed to Trak would indeed have been violated; because Trak would not have been afforded the fair opportunity to present its case. However, despite the Chair’s indifference to the receipt of the document, and further despite the format of the hearing, I am satisfied that Mr.

Stapleton was indeed permitted to forward the document at the hearing; and that he did get the document to the Board, through Mr. Cotter. [ 70 ] To summarize, I have found that because Mr. Stapleton forwarded the document to the Board prior to the end of the hearing, there was no breach of the duty of procedural fairness with respect to the format of the hearing in this regard, and overall. Trak’s attempt to submit further evidence after the hearing [ 71 ] Mr. Stapleton unsuccessfully attempted to submit further documentary evidence by email the day after the hearing.

It would appear that document may be related to the above-referenced document submitted by email in the course of the hearing. The second document was sent by email dated October 8, 2020. It was sent from Mr. Stapleton at 2:12 p.m., with the subject “Additional mapping information”. The email was sent to Mr. Cotter, the Board’s secretary, and Mr. Stapleton’s email stated, in part: “Please see below the additional information regarding the Environmental protection documentation and its current status for sharing with the board. …” [ 72 ] Mr. Cotter responded at 2:46 p.m. on October 8, 2020, and stated: “Hi Mr.

Stapleton. I’m sorry I am not permitted to receive any additional information as the Chair has closed the hearing.” [ 73 ] It is unclear whether the Board was made aware of Trak’s second email of October 8, 2020, and then directed Mr. Cotter to send the above email; or whether Mr. Cotter sent it on his own accord. [ 74 ] As noted by Counsel, the Board has discretion to re-open hearings under rule 12 of its procedures.

The Board’s discretion to hold a subsidiary hearing (or request further information) under rule 12 of the Board’s procedures, however, arises from the post-hearing discussion by the Board following the hearing. It does not arise from a party choosing to submit further information the day after the hearing.

To suggest otherwise would, in my view, impose unreasonable constraints on the Board’s decision making process. [ 75 ] Consequently, I find that regardless of the format of the hearing having been by teleconference, the document submitted by Trak (a full day after the hearing had concluded) need not have been put before, nor considered by, the Board. In my view, the fact that

the Board either did not receive, or did not consider, the subsequent material provided by Mr. Stapleton the day after the hearing, doesnot constitute a breach of the duty of procedural fairness. [76] Further on this point, Trak has not satisfied the Court that the document would have even been relevant to the issue before theBoard. [77] Again, I find no breach of the duty of procedural fairness in this regard.

Was there a reasonable apprehensive of bias? [78] Trak submitted that there was a reasonable apprehension of bias due to the Chair of the Board, and that such constituted adenial of Trak’s right to procedural fairness. Trak further submitted that Chairperson Johnson displayed a predisposition against Trak’sgeneral position. [79] Trak did not raise the concern of bias at the Board hearing. Rather, Trak filed with the Court an interlocutory application inthis matter, seeking to introduce additional evidence at the appeal hearing before the Court.

In an oral decision given on September 28,2021, the Court ordered that Trak was permitted in this appeal to file affidavit evidence setting forth its concerns regarding the allegationof bias. As a result, Trak filed an affidavit of Robert Stapleton, attaching extensive documentation. [80] In essence, Trak’s position was that the allegation of bias arose because Chairperson Johnson had been an employee of aconsulting company, which had provided advice and services to the Town with respect to a previous development referred to as“Maggie’s Place”.

Trak submitted that Robert Stapleton was a member of an association which had advocated against that development. [81] Trak did not raise the issue of bias at the Board hearing, despite being aware of Chairperson Johnson’s past involvement withthe Maggie’s Place development. As a result, the Town submitted that Trak had waived its entitlement to now object on the basis of biasat this appeal before the Court. The Town referred to the decision in Gedge v.

Newfoundland & Labrador, 2011 NLCA 50, where theCourt of Appeal suggested that an allegation of a reasonable apprehension of bias must be raised at the “first possible opportunity”;otherwise, waiver may apply. The Court of Appeal stated at paragraphs 23 and 24 in Gedge, as follows: 23 Other authorities also support the proposition that a reasonable apprehension of bias must be raised at the first possibleopportunity. The basis for this rule is waiver: a party cannot ask for a remedy from a tribunal and afterwards claim reasonableapprehension of bias. See Callahan v.

Newfoundland (Deputy Minister of Social Services) (1993), (NL SC), 113 Nfld.& P.E.I.R. 1 (Nfld. T.D.) and Frecker v. Newfoundland (Medical Care Commission) (1999), (NL CA), 177 Nfld. &P.E.I.R. 298 (Nfld. C.A.). 24 But the waiver rule can only apply if the person alleging a reasonable apprehension of bias had a prior opportunity to raise theissue. The apprehension must be raised at the first possible opportunity. See Chipman Wood Products

(1973) Ltd. v. Thompson (1996), (NB CA), 138 D.L.R. (4th) 761, 42 Admin. L.R. (2d) 259 (N.B. C.A.). For Gedge, this was before the applicationsjudge, as he could not raise concerns relative to bias before the tribunal because he was not aware of when it was meeting or of itscomposition. [82] Trak referred the Court to case law rejecting the presumption of waiver in circumstances where a party is unrepresented bylegal counsel, and was unaware of the right to object; Eckervogt v. British Columbia, 2004 BCCA 398.

In Eckervogt, the BritishColumbia Court of Appeal stated at paragraphs 49 and 50, as follows: 49 On the subject of waiver, Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto: CanvasbackPublication, looseleaf, 2003) said this at 11:5500: A leading English text expresses the general principle as follows: a party may waive his objections to a decision-maker who would otherwise be disqualified on grounds of bias.

Objection is generallydeemed to have been waived if the party or his legal representative knew of the disqualification and acquiesced in the proceedings byfailing to take objection at the earliest practicable opportunity. But there is no presumption of waiver if the disqualified adjudicator failedto make a complete disclosure of his interest, or if the party affected was prevented by surprise from taking the objection at theappropriate time, or if he was unrepresented by counsel and did not know of his right to object at the time. . . . 439 S.A. de Smith, Lord Woolf & J.

Jowell, Judicial Review of Administrative Action, 5th ed. (London: Sweet & Maxwell, 1995) at 542. See also Canada (Human Rights Commission) v. Taylor, (SCC), [1990] 3 S.C.R. 892, where the court rejected the bias

allegation as not having been raised in a timely way. 50 For these reasons I would dismiss the appeal. [ 83 ] Trak was not represented by legal counsel before the Board; however, Mr. Stapleton very ably represented Trak at the hearing. Nevertheless, even if the fact of Trak being unrepresented at the hearing does suggest that there was no effective waiver by Trak of its objection to Chair Johnson, it is my view that the evidence does not near approach a circumstance where a finding of reasonable apprehension of bias could be made. [ 84 ] To elaborate, in Mr.

Stapleton’s affidavit, he referenced and provided extensive documentation evidencing the relationship between the Town and the consulting company Mr. Johnson worked with. The most recent of those documents relating to Maggie’s Place were from 2017. [ 85 ] Having reviewed all of the documentation submitted by Trak, and after considering the submissions of the parties, it is clear that Mr. Johnson’s involvement with the Town was with respect to an unrelated development, over three years prior to the Board’s 2020 hearing.

Such circumstances, in my view, do not approach what could be characterized as a reasonable apprehension of bias. [ 86 ] I add that based on the transcript, I reject Trak’s suggestion that the Chair displayed a predisposition against Trak’s general position. [ 87 ] Based on the foregoing analysis, Trak has not satisfied the Court that the Board breached its duty of procedural fairness owed to Trak.

DID THE BOARD CORRECTLY DECIDE THAT THE TOWN COULD REFER TO THE 2015 FLOOD RISK MAPPING? [ 88 ] The Town submitted that the only issue before the Board at the 2020 hearing was whether the Town’s 2017 Decision to reject Trak’s Development Application contravened the Board’s 2015 Decision. More specifically, the Board had to determine whether the Town was permitted to refer to the Province’s 2015 Flood Risk Mapping when it reconsidered Trak’s Development Application under the 2004 Town Plan.

As stated, the Board confirmed the Town’s 2017 Decision. [ 89 ] Trak submitted that the 2015 Flood Risk Mapping should not have been a consideration in the Town’s re-assessment of Trak’s Development Application under the 2004 Town Plan; nor in the Board’s consideration of the Town’s 2017 Decision. Rather, the Town should have referred to the flood risk mapping in effect under the 2004 Town Plan. As stated, the 2015 Flood Risk Mapping had not been released when Trak initially filed its Development Application. [ 90 ] At the hearing, Mr.

Stapleton referenced there having been several versions of the flood risk mapping “being circulated as late as 2020” (page 66 of the transcript). He further suggested that the Town did not engage the proper process required to amend the depiction of the “environmental protection overlay” on the publicly available documents, which indicate “flood zones and other environmentally sensitive areas of concern” (pages 65 to 66 of the transcript).

He also suggested that at the time of the Town’s 2017 Decision, and at least up until July of 2020, the environmental protection documents attached to the Town Plan which indicate “flood risk areas within the Town” did not indicate any flood risk within the area Trak proposed to develop (pages 64 to 65 of the transcript). [ 91 ] As a result, Trak’s position was that the Board’s decision was incorrect; and Trak characterized the Board’s error as a breach of the duty of procedural fairness.

Trak submitted that it was denied procedural fairness by the Town’s 2017 Decision to reject the Development Application on the basis of non-compliance with the 2015 Flood Risk Mapping. Further, Trak submitted that it was denied procedural fairness by the Board’s confirmation of the Town’s 2017 Decision. [ 92 ] The Town submitted that Trak has incorrectly characterized the Board’s 2020 Decision as constituting a breach of procedural fairness.

The Town submitted that in 2020, the Board made a legal determination respecting whether the Town was permitted to refer to the 2015 Flood Risk Mapping, when the Town reassessed the Development Application and made its decision in 2017. I agree with this submission. As a result, the Board’s 2020 Decision will be reviewed based on the standard of correctness. [ 93 ] The Board’s 2015 Decision required that the Town reconsider Trak’s Development Application under the 2004 Town Plan.

The Town’s 2017 Decision expressly recognized the Board’s 2015 directive, and set forth the provisions of the Town’s former development regulations and former municipal plan, as well as provincial policies that were relied on by the Town. [ 94 ] More specifically, the Town’s 2017 Decision refers to

section 3.3(

v) and

section 3.3(viii) of the 2004 Town Plan, as well as sections 73 and 10(1) of the Town’s former development regulations. As submitted by the Town, the development regulations conferred discretionary powers upon the Town to consider issues which were directly engaged by the 2015 Flood Risk Mapping. [ 95 ] As stated, the Town’s 2017 Decision concluded that the proposed residential subdivision would be “partially located within 1:20 and 1:100 year flood risk areas identified on the Department of Environment and Climate Change’s Flood Risk Mapping”.

This was also confirmed by the Town at the hearing (page 57 of the transcript). [ 96 ] Further, the Town’s 2017 Decision referred to the policy 6.04 of the Department of Environment and Climate Change’s Policy for Flood Risk Management. That provincial policy does not permit residential development within the 1:20 year flood zone.

Again, this policy was confirmed by the Town at the hearing before the Board (page 57 of the transcript). [ 97 ] In essence, the Town followed the Board’s 2015 Decision and reconsidered the Development Application in reference to the 2004 Town Plan and regulations; however, the Town did so in light of the new 2015 Flood Risk Mapping. As stated, the 2015 Flood Risk Mapping had not been released when the Town issued its approval in principle of the Development Application.

[ 98 ] Further on this, at the 2020 Board hearing, the Town’s witness confirmed that the Town did indeed take into account the new 2015 Flood Risk Mapping when reassessing the Development Application under the former town planning documents (page 60 of the transcript). The Town then engaged regulation 10 to exercise its discretion to refuse the application based on public safety concerns (pages 61 to 62 of the transcript).

The public safety concern arose because a portion of the proposed subdivision is in the flood plain area; specifically, a portion was in the 1:20 flood risk area (pages 56 to 57 of the transcript). [ 99 ] At the 2020 Board hearing, Mr. Stapleton seemed to suggest that the 2015 Flood Risk Mapping was before the Board at the 2015 hearing, but determined not to be relevant (at page 66 of the transcript).

The Town disagreed with this, and noted that the 2015 Flood Risk Mapping was not referenced in the Board’s 2015 Decision. [ 100 ] In any event, as submitted by the Town, the Board’s 2015 Decision did not direct the Town to reassess the Development Application based only upon what the Town knew as of January 2014. Rather, the order of the Board in 2015 was for the Town to reconsider Trak’s Development Application based on the 2004 Town Plan; which the Town did in 2017.

The Board’s 2015 Decision did not preclude the Town from considering the updated 2015 Flood Risk Mapping when reconsidering the permit application under the 2004 Town Plan. [ 101 ] Further, Mr. Stapleton suggested at the 2020 Board hearing that at the time of the Town’s 2017 Decision, the environmental overlay was not actually updated on the publicly available documentation so as to include the 2015 Flood Risk Mapping. As referenced earlier, he challenged Mr.

Spurrell’s credibility with respect to this issue (at page 45 of the transcript); and he sought to submit further documentary evidence respecting the environmental overlay in place when the Town made its 2017 Decision. [ 102 ] Further on this, as stated, Mr.

Stapleton submitted to the Board that there had been many versions of the flood risk mapping; as well as improper procedures engaged by the Town to update the public environmental overlay documentation. [ 103 ] Nevertheless, Trak has not satisfied the Court how or why the environmental overlay documentation was relevant to the issue before Board in 2020. [ 104 ] To elaborate, as submitted by the Town, the Town’s 2017 Decision did not expressly engage the environmental overlay mapping.

More specifically, the Town’s 2017 Decision did not state that the development was precluded because of, or in reference to, the environmental overlay mapping contained in the publicly available documentation. Rather, the Town decided to exercise its discretionary power to reject the application for public safety reasons, pursuant to regulation 10, which was in place in 2004. This was done after referring to the 2004 Town Plan and regulations, as ordered by the Board in 2015, in light of the updated 2015 Flood Risk Mapping.

As stated, this decision making process was explained by the Town at the hearing (pages 60 to 62 of the transcript). [ 105 ] For clarity, I am not persuaded that there is relevance to the manner by which the environmental overlay mapping was depicted on the public documentation available at the time of the Town’s 2017 Decision. Trak has not established that the environmental overlay document had to be updated on the public documentation in 2017, in order for the Town to determine and properly assess whether a portion of the proposed development was contained in the updated 2015 Flood Risk Mapping.

In other words, there was not sufficient information before the Board in 2020 to suggest that the only way the Town could properly determine the impact of the 2015 Flood Risk Mapping on Trak’s Development Application was by referring to an updated environmental overlay mapping document. [ 106 ] To summarize, as submitted by the Town’s Counsel, the Town’s 2017 Decision engaged the 2004 Town Plan and regulations. The decision was based upon issues such as soil and sub-soil characteristics, topography and drainage, in light of the 2015 Flood Risk Mapping.

Further, as stated, the Town confirmed at the Board hearing that a portion of the proposed development was indeed in the 1:20 and 1:100 flood risk areas. No development is permitted in the 1:20 flood risk areas, and the Town exercised its discretion to refuse the permit for public safety reasons. This was a reasonable exercise of the Town’s discretionary authority.

I find that the Board was correct in determining that the Town had the authority to deny the Development Application. [ 107 ] Further on this, it was not a legitimate expectation of Trak to expect that the 2015 Flood Risk Mapping be ignored by the Town in 2017, or by the Board in 2020. As stated, the Board’s 2015 Decision did not preclude the Town from considering the 2015 Flood Risk Mapping when reconsidering Trak’s permit application under the 2004 Town Plan. [ 108 ] Trak has not established that the Board’s 2020 Decision was incorrect.

CONCLUSION [ 109 ] After considering the submissions and the law, and based on the foregoing analysis, Trak’s appeal is dismissed in its entirety. [ 110 ] Costs are awarded to the Town on a Column 3 basis, in accordance with Rule 55 of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . [ 111 ] Order accordingly. _____________________________ Valerie L. Marshall Justice