MelanIe Lafosse Appellant And: Eastern Newfoundland Regional Appeal Board First Respondent And: The Town Council OF the Town of Witless Bay Second Respondent, 2021 NLSC 111

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : LaFosse v. Eastern Newfoundland Regional Appeal Board , 2021 NLSC 111 Date : August 31, 2021 Docket : 202101G2679 Between: MelanIe Lafosse Appellant And: Eastern Newfoundland Regional Appeal Board First Respondent And: The Town Council OF the Town of Witless Bay Second Respondent Before: Justice Glen L.C. Noel On Appeal From: A Decision of Eastern Newfoundland Regional Appeal Board pursuant to section 46(2) of the Urban and Rural Planning Act, 2000 , S.N.L. 200, c.

U-8, File # 15-006-067-011 dated the 23rd day of March, 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 30, 2021

Summary: Melanie LaFosse appealed the Eastern Regional Appeal Board’s Decision holding that it had no jurisdiction to hear the appeal of a decision of the Town Council of Witless Bay to tender for roadwork to extend Mullowney’s Lane and to upgrade a right-of-way.

The Court held: 1. The standard of review is correctness. 2. The Board did not err in law or jurisdiction in determining LaFosse’s appeal did not involve an application to undertake a development. 3. The Board had a sufficient evidentiary basis to conclude that the right-of-way in issue is a roadway vested in the Town. The appeal was dismissed with no order as to costs. Appearances: Michael J. Crosbie, Q.C. Appearing on behalf of the Appellant No appearance On behalf of the First Respondent Joseph J.

Thorne Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 ; Freake v. Gander (Town) , 2020 NLSC 87 ; Yates v. Springdale (Town) , 2021 NLSC 3 ; Newfoundland and Labrador Refining Corporation v. IJK Consortium , 2009 NLCA 35 ; Rich v. Bromley Estate , 2013 NLCA 24 ; O’Dea v. Witless Bay (Town), Eastern Regional Appeal Board, File Number 15-006-064-037; Lafosse v.

Eastern Newfoundland Regional Appeal Board , 2021 NLSC 77 STATUTES CONSIDERED: Urban and Rural Planning Act , 2000, S.N.L. 2000, c. U-8 ; Municipalities Act, 1999 , S.N.L. 1999, c. M- 24 REASONS FOR JUDGMENT Noel, J. : INTRODUCTION [ 1 ] The Town Council of Witless Bay made a motion on 19 May 2020 “to tender for roadwork to extend Mullowney’s Lane from the turnaround for 168 meters, and to upgrade the ‘Right-of-Way’ to the existing standards of Mullowney’s Lane” (“ Council ’s Decision”). [ 2 ] The Appellant, Melanie LaFosse appealed Council ’s Decision to the Eastern Newfoundland Regional Appeal Board.

The Board decided that it had no jurisdiction to hear the appeal (the “Board’s Decision”). It is from the Board’s Decision that LaFosse appeals to this Court. [ 3 ] I heard this statutory Appeal of the Board’s Decision together with a separate Application LaFosse filed for judicial review of Council ’s Decision (202101G3623). The Board’s Decision [ 4 ] The Board held that it did not have jurisdiction under s. 42 of the Urban and Rural Planning Act , 2000, S.N.L. 2000, c.

U-8 , because Council ’s Decision did not involve “an application to undertake a development or decision to allow/approve a development.” “Development” is defined in s. 2(g)(vi) of the Act to exclude “the maintenance or improvement of a road” by public authorities “within

the boundaries of the road reservation.” [ 5 ] The Board explained in its reasons that infrastructure works on highways/roads vested in the Town are not considered “development” as defined by the legislation, and “the Town does not complete applications or issue permits to administer such undertakings of its own.” The Board pointed to ss. 163 , 164 , and 165 of the Municipalities Act, 1999 , S.N.L. 1999, c.

M-24 as Council ’s authority for the construction and maintenance of public roadways, and for taking over privately developed roads for public use and vesting in the Town. [ 6 ] The Board determined its jurisdiction under s. 42 is limited to decisions based on an application. It stated, “[i]n this case, there was no application submitted to the Town as the Town does not need to submit an application to itself for the proposed extension of Mullowney’s Lane.” issues [ 7 ] The issues are: 1. The standard of review of the Board’s Decision; 2.

Whether the Board erred in law or jurisdiction in determining LaFosse’s appeal did not involve “an application to undertake a development”; and 3. Whether the Board erred in law in making a decision not based on evidence or insufficient evidence? Analysis 1. The standard of review of the Board’s Decision [ 8 ]

Section 46 of the Act permits a limited statutory right of appeal to this Court of a decision of the Board on a question of law or jurisdiction. [ 9 ] The Board’s Decision involves an issue of law and jurisdiction. The parties are in agreement that the standard of review on such a question is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , at para. 37 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 , at para. 35 ; Freake v. Gander (Town) , 2020 NLSC 87 , at paragraph 16 ; and Yates v. Springdale (Town) , 2021 NLSC 3 , at para. 7 . 2.

Whether the Board erred in law or jurisdiction in determining LaFosse’s appeal did not involve “an application to undertake a development”? [ 10 ] The Board was correct in concluding that it did not have jurisdiction. The Board’s Jurisdiction [ 11 ] The Board’s jurisdiction is set out in s. 42(1) and is confined to four particular categories: (

a) an application to undertake a development; (

b) a revocation of an approval or a permit to undertake a development; (

c) the issuance of a stop work order; and (

d) a decision permitted under this or another Act to be appealed to the Board. [ 12 ] I accept the submission of counsel for the Town that the Board is not general supervisor of infrastructure work or development. [ 13 ] For LaFosse to succeed, she has to demonstrate that her appeal to the Board engaged the Board’s narrow jurisdiction.

She attempts to do so by asserting, “the Town applied to itself for approval to undertake a development.” [ 14 ] There was no evidence before the Board to substantiate LaFosse’s assertion that Council was either submitting or considering an application for a permit, when it resolved to tender for the roadwork. [ 15 ] There is no legal basis for deeming that the Town applied to itself for a permit, or deeming that the Town issued a development permit to itself. Accordingly, the Board correctly determined there was no application and the Town did not need to submit an application to itself. 3.

Whether the Board erred in law or jurisdiction in making a decision not based on evidence or insufficient evidence? [ 16 ] The Board did not err in law or jurisdiction on the evidence before it. LaFosse’s Position [ 17 ] LaFosse submits the Board erred in law by making a decision that was not based on evidence.

The argument is the Board did not state the evidentiary basis or explain the factual evidence for its conclusion that the development area in issue was a highway/road vested in the Town. [ 18 ] Alternatively, LaFosse argues that the disputed Right-of-Way is not a public highway vested in the Town, and the improvement

project constitutes a defined “development” pursuant to s. 2(g)(

i) of the Act for the “making of an access onto a highway, road or way.” Town’s Position [ 19 ] The Town submits that the question of the status and nature of the Right-of-Way, and the sufficiency of the evidence before the Board to establish whether it is a public highway vested in the Town, is immaterial because no application was involved.

Nevertheless, the Town points to evidence before the Board on the nature of the Right-of-Way and the roadwork improvement for completion. [ 20 ] The Town also argues a failure to consider evidence or the Board’s weighing and balancing of evidence is an error of fact, not an error of law or jurisdiction: Counsel for the Town relies on Newfoundland and Labrador Refining Corporation v. IJK Consortium , 2009 NLCA 35 , at para. 26 ; and Rich v.

Bromley Estate , 2013 NLCA 24 (at para. 49 ). [ 21 ] I do not accept these appellate authorities from our Court to stand for the proposition that proceeding with no evidence on an essential matter that requires evidence and proof would be an error of fact, rather than an error of law. Barry, J.A. in Newfoundland and Labrador Refining Corporation , at para. 28 , concluded it was an error of law for the parties not to have had “the opportunity to be heard on [the point in issue] or to adduce evidence.” LaFosse did have the opportunity to adduce evidence and to be heard on the subject Right-of-Way.

In any event, I am not applying the appellate standard of review of “a palpable and overriding error” to the evidence before the Board. [ 22 ] The Board was fully aware of the evidentiary dispute over how parties viewed the Right-of-Way.

It was open to the Board to accept the evidence tendered by the Town that the Right-of-Way is a roadway, notwithstanding LaFosse characterizing the Right-of- Way as either a “cart path” or “fisherman’s path.” The Board correctly concluded the Town controls, and has responsibility for, road works within Town boundaries. [ 23 ] The Board’s conclusion was consistent with the findings from its previous decision relating to the area in question.

In 2019, the Town issued a permit to a resident, Ron Harte to maintain and improve the area that included the subject Right-of-Way leading to his property, from Mullowney’s Lane Extension. Noel O’Dea, a resident of Witless Bay, appealed the permit issued to Mr. Harte to the Board. Mr. O’Dea was one of LaFosse’s representatives on her appeal before the Board. [ 24 ] The Board held the Town did not have the authority to issue the permit to Mr. Harte and ordered the permit invalid: O’Dea v. Witless Bay (Town), Eastern Regional Appeal Board, File Number 15-006-064-037 (“the O’Dea Decision”).

The Board considered the evidence presented and concluded: (at page 6) “the subject of the appeal is a historic crown land right-of-way, which is vested in the Town, and is not privately owned.” The Board further determined in the O’Dea Decision that Council has the authority for undertaking or controlling all road works in its jurisdiction. There was no appeal of the O’Dea Decision. [ 25 ] There is no basis to set aside the Board’s Decision, and I dismiss LaFosse’s appeal. costs [ 26 ] In the normal course, the Town would receive its costs in successfully opposing LaFosse’s appeal of the Board’s Decision.

However, I am making no order as to costs, since LaFosse was successful in her judicial review application in having Council ’s Decision quashed. It would be impractical trying to sort through time expended on each of the separate proceedings. [ 27 ] The fairest and most reasonable way for me to exercise my discretion is to have the parties bear their own costs throughout all the proceedings, including the Interlocutory Application for the Injunction ( Lafosse v. Eastern Newfoundland Regional Appeal Board , 2021 NLSC 77 ). Conclusion [ 28 ] 1. The standard of review is correctness. 2.

The Board did not err in law or jurisdiction in determining LaFosse’s appeal did not involve an application to undertake a development. 3. The Board had a sufficient evidentiary basis to conclude that the Right-of-Way is a roadway vested in the Town. ORDER : [ 29 ] The appeal is dismissed with no order as to costs. _____________________________ GLEN L.C. NOEL Justice