ROBERT MUSHKA v. KAREN MUSHKA, 2003 SKQB 147

2003 SKQB 147 Q.B. A.D. 19 98 No. 865 J.C. P.A. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: ROBERT MUSHKA and KAREN MUSHKA PLAINTIFFS - and - THE RESORT VILLAGE OF CANDLE LAKE and DALE McLEOD DEFENDANTS G.J. Scharfstein for the plaintiffs R.C. Mills, Q.C. for the defendants JUDGMENT RYAN-FROSLIE J. March 31, 2003 [ 1 ] This is an action by the Mushkas for judicial review of three resolutions of the resort village of Candle Lake, the cumulative effect of which would be to force the Mushkas to stop work on the renovations to their mobile home and remove that home from the resort village.

The Mushkas also claim damages against the resort village and the village’s mayor, Dale McLeod for deterioration of the renovations which could not be completed because of the resolutions in question. FACTS [ 2 ] In 1995 the Mushkas purchased Lot 16, Block 106, Plan 83-PA-14829 in the resort village of Candle Lake. The lot was zoned R-1 Residential.

[ 3 ] In September, 1995 Mr. Mushka’s mother offered her mobile home in Yorkton for use on the lot. Mr. Mushka talked to the village administrator, Clint Mauthe, who made him aware that mobile homes were not allowed in R-1 Residential areas except with council approval. This was in accordance with zoning Bylaw No. 6 (see Tab 6 and Tabs 1 to 4). [ 4 ] On September 25, 1995 Mr. Mushka wrote to the council for the resort village of Candle Lake to request permission to move the mobile home onto his lot. His request included an undertaking to change the exterior appearance of the mobile home.

That letter reads in part: ...My wife Karen and I have made plans on how to renovate the mobile home, by changing the exterior as well as constructing an addition that would totally change the elongated look of the mobile home to a look that will compliment the surrounding neighbourhood of Island View. (cedar or 1/4 log siding 2 story addition and a new roof line).... Along with this letter was submitted a drawing which showed an addition being added to the middle of the mobile home. There were very few structural details contained in the letter or the drawing. Mr.

Mushka sought no professional advice in making the drawing but rather relied upon his own experience as he had built two homes for himself and assisted other friends to construct their homes. [ 5 ] At its October, 1995 meeting, the council for the resort village of Candle Lake passed Resolution No. 231-95. That resolution allowed the Mushkas to move their mobile home into the subdivision. The resolution read as follows: 4. Robert Mushka (Moving in of trailer & Converting to House). Hawker: That the trailer be allowed to move in and be converted into a two storey house.

That a $1,000 bond be given to Council and that the conversion must be completed by September 30, 1997. [ 6 ] The Mushkas were informed of the approval by a telephone call from the town administrator, Clint Mauthe. They never received a copy of the resolution but were aware that there was a time limit within which the construction must be completed. I accept Mr. Mushka’s evidence that it was his intention to follow through with the proposal as outlined in his September 25, 1995 letter. [ 7 ] In January, 1996 the Mushkas moved the mobile home onto their property and began development.

On May 16, 1996 Jim Cunningham, the village’s building inspector, attended at the Mushka’s lot to complete and issue a building permit (See Exhibit P-1, Tab 14). No building requirements were set out in the permit. Mr. Mushka signed the permit in blank and paid the fee of $70. I accept Mr. Mushka’s testimony that neither his September 25, 1995 letter nor his drawing were attached to the permit when he signed it. [ 8 ] As the Mushkas began to develop their project, they realized there were difficulties associated with their plan. Structurally, the trailer could not withstand the load of a second storey.

There was also a mechanical problem. Carbon monoxide poisoning would occur unless the furnace was moved. Faced with these difficulties, the Mushkas decided to revise their plan. Under the new plan, the second storey addition would not be over the mobile home but would be connected to it by a gabled roof. The Mushkas did not advise the resort village of Candle Lake of their altered plan. I accept Mr.

Mushka’s testimony that he did not think it was necessary to do so. [ 9 ] On July 15, 1997 the resort village wrote to Robert Mushka advising him that the deadline for completion of his project was approaching and requesting that he pay the $1,000 bond. Mr. Mushka testified that this letter was not a surprise to him as he knew the deadline for completion was approaching. [ 10 ] As a result of receiving the July 15, 1997 letter, Robert Mushka talked to Mr. Mauthe on or about August 11, 1997. It was at that point that Mr. Mushka first raised the changes he had made to the plan. Mr.

Mauthe told him that if he wanted to change the plan he would need council’s approval. [ 11 ] Relying on Mr. Mauthe’s representations, Mr. Mushka wrote to the resort village of Candle Lake on August 11, 1997 advising them of his “new” plan. In the letter he states the reason for the change in plan was that construction costs created excessive material and labour barriers, making the original proposal too expensive. The letter included a drawing depicting the revised front profile for the home. The letter stated:

...The intention is still, to totally change the outward exterior of the trailer and the addition to blend into one cottage look. This fall I intend to install windows, doors and siding to the addition. I will be installing a new gable roof to the trailer, and side the trailer to match the two story addition in the spring of 1998. [ 12 ] On September 9, 1997 the council for the resort village of Candle Lake met and Mr. Mushka’s proposed revisions were dealt with. The minutes of that meeting show Resolution No. 230-97 was passed relating to the Mushkas’ trailer. The resolution reads as follows: 4.

Letter from Bob Mushka (Trailer in Island View) Wasyluk: That a letter be sent to Mr. Mushka stating the following: That the $1,000.00 bond has been forfeited to the Resort Village, that he has to post another $1,000.00 bond, that proper footings have to be installed within 60 days, that he has to comply to his original proposal, and that he is given an extension until September 30, 1998. If he does not comply he will have to remove the trailer. Mr. Mushka was advised of this resolution by letter dated September 10, 1997.

No reasons were given for the council’s decision not to approve the revised plan. [ 13 ] Upon receiving the September 10, 1997 letter, Robert Mushka phoned the town administrator, Clint Mauthe, to find out why the revised plan had not been accepted. Mr. Mauthe suggested a meeting between Mr. Mushka, a representative of the resort village, and Jim Cunningham, the building inspector. Mr. Mauthe was very evasive in his testimony as to the purpose of this meeting but finally admitted in cross-examination that the meeting was held to discuss the Mushka’s revised plan.

That meeting took place on Thanksgiving weekend in October, 1997. The Mushkas testified they felt Dale McLeod, the mayor for the resort village, authorized them to proceed with their altered plan at that meeting. Mr. McLeod denies this. Both parties acknowledge it was agreed that the Mushkas would put concrete footings around the addition only. Those footings were completed by November 11, 1997 and the town administrator was advised accordingly. [ 14 ] On May 22, 1998 Jim Cunningham did an inspection of the Mushka’s project. His purpose in doing the inspection was to look at the footings.

His building inspection report dated May 22, 1998 confirms that the footings were completed and placed only beneath the addition. [ 15 ] During the spring and summer of 1998 the Mushkas continued to develop their mobile home in accordance with their altered plan. They installed a new roof profile, strapped the trailer and installed the siding, doors and windows. [ 16 ] On July 24, 1998 Mr. Cunningham did another inspection at the request of the mayor, Dale McLeod. Mr. Mushka was present during the inspection. No concerns were raised by Mr. Cunningham with regard to the work done. Mr.

Cunningham prepared an inspection report dated July 30, 1998. In that inspection report he noted that the Mushkas were not following their original proposal. He also concluded “...that it would not be in anyone’s best interest to attempt a second storey on a mobile home not designed for that purpose....” Mr. Cunningham provided the inspection report to Mr. Mauthe.

From October, 1997 to August, 1998, no one from the resort village called the Mushkas to raise any concerns about the work they had done or the fact they were not following their original plan. [ 17 ] On August 4, 1998 the council for the resort village held a meeting and the Mushka development was placed on the agenda by Mr. Smith, one of the counsellors. The Mushkas were not advised that their property was to be discussed at the meeting. According to Mr.

Mauthe who was present at the meeting, the council had before it the Mushkas original application, the building permit, the application for revision and the inspection reports done by Mr. Cunningham. Mr. Mauthe testified there was very little discussion on the matter and that the result of the meeting was summarized in Resolution No. 181-98 which reads as follows: 2. Bob Mushka Property Wasyluk: That the Resort Village issue a stop work order on Bob Mushka’s property. [ 18 ] The Mushkas found out about the stop work order when relatives staying and working at the cabin were given a copy of

the order by Mr. Cunningham on August 5, 1998. On that same date the town administrator, Mr. Mauthe, sent a letter to Robert Mushka advising him of the order. [ 19 ] On August 7, 1998 Clint Mauthe faxed Robert Mushka a copy of Resolution No. 181-98, on which Mr. Mauthe had written “Unofficial Resolution” and “Resolution has not been adopted by council”. When questioned in cross-examination about this fax, Mr. Mauthe testified he did not intend to convey that the resolution had not been passed but rather that the minutes referring to it had not yet been adopted. Whatever Mr. Mauthe’s intent, I find Mr.

Mushka understood the fax to mean the resolution had not been passed. [ 20 ] On October 6, 1998 the council for the resort village met again and the Mushka property was once more on the agenda. The council decided that the Mushkas would have until November 30, 1998 to remodel their mobile home in accordance with their original proposal or they would have to remove the trailer. The Mushkas were not advised their property was going to be discussed at that meeting, nor were they given any opportunity to be heard. [ 21 ] The Mushkas engaged legal counsel and on November 5, 1998 initiated the within court action.

ISSUES [ 22 ] The issues are as follows: 1. Is the resort village liable to the Mushkas as a result of breach of contract? 2. Is the resort village and/or Dale McLeod liable to the Mushkas for negligent misrepresentation? 3. Did the resort village owe a fiduciary duty to the Mushkas and, if so, was it breached? 4. Did the resort village deny natural justice and procedural fairness to the Mushkas? (At issue is procedural fairness, bias and a duty to give reasons.) 5.

Are the resolutions in issue improper and unenforceable on the basis they require the Mushkas to complete their renovations in a “unsafe” and/or “illegal” manner? 6. What, if any, damages have the Mushkas suffered? 7. Is the Mushkas’ claim barred by a limitation period? ANALYSIS 1. Is the resort village liable to the Mushkas as a result of breach of contract? [ 23 ] The Mushkas allege a contract existed between them and the resort village that they could complete their development in accordance with their revised plan. This contract is alleged to have arisen out of the October, 1997 meeting.

Present at the meeting were the Mushkas, the mayor, Dale McLeod, the town administrator, Clint Mauthe, and the building inspector, Jim Cunningham. What occurred at this meeting is hotly contested. [ 24 ] Dale McLeod testified that when he went to the meeting he did so with the idea that he was not changing his mind and that the only way the Mushkas could proceed with their project was if they followed their original plan. He denies there was an agreement that the Mushkas could proceed with their altered plan. He recalled very little of the meeting other than the discussion with regard to the footings.

[ 25 ] The building inspector, Jim Cunningham, testified that he was asked to attend the October, 1997 meeting by the town administrator, Clint Mauthe. Mr. Cunningham was not advised of the reason for the meeting and was not sure if he was there the whole time. He did not recall any discussion about footings nor did he recall any agreement being reached. It was his recollection that the Mushkas must still comply with their original plan. [ 26 ] The town administrator, Clint Mauthe, testified that the second storey was not even discussed at the October meeting although other things were.

It was his recollection that no agreement was reached at the meeting. Mr. Mauthe was not forthright in his testimony and I give his evidence little weight. [ 27 ] The Mushkas testified that Dale McLeod took control of the meeting and insisted that the Mushkas put a second storey over the mobile home. Mr. Mushka explained why this was not possible and the building inspector confirmed it would not be safe. Concrete footings were also discussed. Mr. Mushka testified that the mayor wanted footings around both the trailer and the addition.

Eventually an agreement was reached that the footings would only be necessary around the addition and that they must be completed within 60 days. The Mushkas both testified their revised plan was discussed at the meeting. Robert Mushka testified in a very open and honest manner. The Court accepts his evidence that the revised plan was discussed. This is consistent with the purpose of the meeting which Mr. Mauthe admitted was to discuss the Mushkas’ proposal. The Court also accepts the Mushkas’ evidence that they believed the Mayor had agreed to the alteration of their plan. Mr.

Mushka testified that this belief may have been based upon the agreement that footings would be necessary only around the addition. The evidence does not establish that Dale McLeod agreed to the Mushkas proceeding with their revised plan. The Court finds the Mushkas had an honest but mistaken belief that such an agreement was reached. This mistaken belief was based on the consensus that footings were needed only around the addition. The Mushkas thought this meant the addition would be beside, not over, the mobile home. No contract was formed.

The $1,000 bond paid by them following the meeting was a performance bond, it was not consideration for a contract. The Mushkas’ claim in contract must fail. 2. Is the resort village liable to the Mushkas for negligent misrepresentation? [ 28 ] The Mushkas argue that at the October, 1997 meeting the mayor, Dale McLeod, authorized them to proceed with their revised plan. This representation was not honoured by the resort village and that as such the resort village and/or Dale McLeod are liable for negligent misrepresentation.

It is not necessary to go into a detailed analysis of the law with regard to this issue as the evidence does not support the Mushkas’ contention. Based on the evidence presented, this Court cannot find that Dale McLeod, authorized the Mushkas to proceed with their altered plan. Any claim against the resort village and/or Mr. McLeod personally on this basis must fail. 3.

Did the resort village owe a fiduciary duty to the Mushkas and, if so, was it breached? [ 29 ] The Mushkas argue that the resort village owes them and all its constituents a fiduciary duty and that the resort village breached this duty when it failed to follow the rules of natural justice in dealing with the Mushkas’ development. [ 30 ] Rogers, in his text, The Law of Canadian Municipal Corporations (2nd ed.), Vol. I (Scarborough: Carswell, 2000) asserts that municipal corporations are of a non-fiduciary nature.

At page 9 of his text he states: The municipal corporation is not a trustee for either the ratepayers or inhabitants, who, if they could be considered cestuis que trustent of the corporation, could sue it for every single breach of a statutory duty imposed on it. Ratepayers are afforded relief against the municipality for ultra vires acts but their right of action does not depend on a fiduciary relationship.... In support of this position, Rogers cites the decisions in Gallagher v. Armstrong (1911) 1911 CanLII 415 (AB KB) , 3 Alta. L.R. 443 and Norfolk v. Roberts (1913) 1913 CanLII 533 (ON CA) , 28 Ont.

L.R. 593 at 602, aff’d 1914 CanLII 13 (SCC) , 50 S.C.R. 283 . [ 31 ] I find that the resort village did not owe a fiduciary duty to the Mushkas which was breached in the circumstances of this case. 4. Did the resort village deny natural justice and procedural fairness to the Mushkas? (At issue is procedural fairness, bias and a duty to give reasons.)

Procedural fairness [ 32 ] The resort village argues it owes no duty of procedural fairness to the Mushkas as the resolutions in issue were purely discretionary. I cannot agree. Municipal councils are the governing bodies of municipalities and as such they operate in different capacities. They perform legislative and administrative functions and are sometimes called upon to act in quasi-judicial capacities. A quasi-judicial function involves the exercise of a statutory discretion in such a manner as to affect rights and/or property (See: Glenella Management Ltd. v.

Winnipeg (1985), 1985 CanLII 3968 (MB KB) , 40 Man. R. (2d) 53 (Q.B.) ). It is clear the rules of natural justice and procedural fairness apply to quasi-judicial matters. Since the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration) , 1999 CanLII 699 (SCC) , [1999] 2 S.C.R. 817 , the distinction between the review process applicable to quasi-judicial decisions and that applicable to purely discretionary decisions has diminished.

As Justice L’Heureux-Dubé stated at para. 20 of the Baker decision: ...The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness: Cardinal v. Director of Kent Institution , 1985 CanLII 23 (SCC) , [1985] 2 S.C.R. 643 , at p. 653 .... The pragmatic and functional approach adopted by the Supreme Court of Canada in Baker looks at decisions, be they discretionary or non-discretionary, as part of a continuing “spectrum”.

Where a particular decision falls within the spectrum will determine the degree of review it is subject to. There is ample case law to support the proposition that a duty of procedural fairness applies to discretionary decisions of a municipal corporation which affect individual rights or property. That is the situation here and as such the resort village owed the Mushkas a duty of procedural fairness. See for example: Beer v. Fort Garry (Rural Municipality) (1958), 1958 CanLII 220 (MB CA) , 16 D.L.R. (2d) 316 (Man. C.A.) ; Namusa Enterprises Ltd. v.

Etobicoke (City) (1984), 1984 CanLII 2074 (ON SC) , 47 O.R. (2d) 769 (Div. Ct.) ; Morrison v. Parkland No. 31 (County) (1995), 1995 CanLII 9172 (AB KB) , 33 Alta. L.R. (3d) 238 (Q.B.) . [ 33 ] The existence of a duty of procedural fairness does not determine what needs to be done to fulfill that duty. What amounts to procedural fairness in one set of circumstances may be very different than what amounts to procedural fairness in another set of circumstances.

The Supreme Court of Canada in Baker at paras. 23 to 27 set out five factors a court should consider in determining what requirements are necessary to meet the duty of procedural fairness in a particular case. These factors are not exhaustive and may be summarized as follows: 1. The nature of the decision being made and the process followed in making it (The more important the decision and the closer the process resembles a judicial process, the greater the requirement of procedural fairness.) 2.

The nature of the statutory scheme and the terms of the statute pursuant to which the body operates (Greater procedural protections are required where the governing statute provides limited protection, for example, where the decision is final and there is no appeal.) 3. The importance of the decision to the individual(

s) affected (The more important the decision, the greater the need for procedural fairness.) 4. The legitimate expectations of the person(

s) challenging the decision (If there is a legitimate expectation that a certain procedure will be followed, the duty is greater.) 5. The choice of procedure made by the administrative body itself (Does the statute give the administrative body the ability to choose its procedure? Does the body have special expertise?) [ 34 ] In order to properly assess how these factors relate to this case, it is necessary to review the resort village’s procedures and the steps taken by them in passing the resolutions in issue. [ 35 ] Municipalities are creatures of statute.

They have no power other than that granted to them by the legislature. The Urban Municipality Act, 1984 , S.S. 1983-84, c. U-11 gives to councils the authority to make bylaws affecting the “construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, reuse and occupancy of any building. The Planning and

Development Act, 1983 , S.S. 1983-84, c. P-13.1 authorizes councils to pass zoning bylaws to control the use of land within their jurisdiction. It is these Acts that give the resort village the authority to pass the resolutions in issue and they, together with the village’s own bylaws, set out the procedure to be followed. The resort village’s building bylaw was not filed as an exhibit in these proceedings. Their zoning bylaw is set out in Exhibit P-1, Tab 6. This zoning bylaw sets out the procedure the resort village is to follow in dealing with zoning and development.

Of particular relevance to this case are ss. 3 and 6.1. [ 36 ] The Mushka’s lot in the resort village is zoned R-1 Residential.

Section 6.1(2) of the resort village’s zoning bylaw [as amended by bylaw 1/90 (Exhibit P-1, Tab 4] provides that “mobile homes” are a discretionary use in R-1 Residential Districts. [ 37 ] A discretionary use is defined in s. 2 of the bylaw as one requiring the approval of council and which complies with the development standards set out in the bylaw. [ 38 ]

Section 6.1(5) of the zoning by-law states that “...all discretionary uses shall maintain the residential character of the area as much as possible.” [ 39 ] In 1995, when the Mushkas requested authorization to move a mobile home onto their R-1 Residential lot, they were in effect asking the resort village to approve a discretionary use. [ 40 ]

Section 3 of the resort village’s zoning bylaw sets out the procedure to be followed when an individual wants to develop a property. The first step is to apply for a development permit. A development is defined in s. 2 of the bylaws as “the carrying out of any building ... in, on or over land, or the making of any material change in the use or intensity of use of any building or land”. [ 41 ]

Section 3.3 of the bylaw sets out how an application for a development permit is to be made. Applications are to be in “Form A” and are to be accompanied by two copies of the lot or building plan showing dimensions. Where the application is for a discretionary use, the applicant shall also provide a written description of the proposed development. Mr. Mauthe, the administrator for the resort village, testified there is no Form A.

It is clear from the evidence that the Mushkas’ letter of September 25, 1995 and drawing enclosed therewith formed their application to the resort village for a discretionary use to bring a mobile home onto their lot. [ 42 ] Once an application is received, s. 3.4 of the zoning bylaw requires the development officer (in this case, Mr. Mauthe) to review the application to ensure the proposed development complies with all applicable regulations and provisions of the bylaw and the policies contained in the basic planning statement bylaw. Mr. Mauthe testified the Mushkas’ application met this requirement.

Because the application was for a discretionary use, the application then had to be submitted to council for approval. [ 43 ]

Section 3.5 of the zoning bylaw provides that when dealing with an application for a discretionary use, the council shall pass a resolution instructing the development officer to either issue a development permit incorporating any special development standards prescribed by council or refuse the application indicating the reason for refusal.

Section 3.5 of the bylaw requires the decision be provided to the applicant in writing in Form B. [ 44 ] In response to the Mushka’s application, the resort village passed Resolution No. 231-95, approving the moving of the “trailer” onto the Mushka’s lot. The only conditions set out in the resolution were: (1) that it be converted into a two storey house; (2) that $1,000 bond be paid; and (3) that the conversion be completed by September 30, 1997. By this resolution, the resort village approved the Mushkas’ development. A development permit was never issued because according to Mr.

Mauthe’s evidence the resort village had no such permits. [ 45 ] After a development permit is issued, s. 3.2(3) of the zoning bylaw provides a building permit may be obtained. A building permit is not the same as a development permit. Both are defined in s. 2 of the zoning bylaw. A building permit is issued pursuant to the resort village’s building bylaw and authorizes construction. A development permit is issued pursuant to their zoning bylaw and authorizes a development.

A building permit is not to be issued until a development permit is granted. (See s. 3.2(3) of the Zoning Bylaw). [ 46 ] In this case a building permit was issued for the Mushka’s development (See Exhibit P-1, Tab 14). Unfortunately it was issued in blank. No particulars were included with regard to the building specifications. As indicated earlier, I accept Mr. Mushka’s testimony that his September 25, 1995 letter and drawing were not attached to the building permit when he signed it. In short, the only

indication of what the resort village required of the Mushkas was set out in Resolution No. 231-95, that is, that their “trailer” be converted into a two storey house. The importance of what the resort village required of the Mushkas cannot be overstated. While the resort village had the power to determine zoning districts and to control the types of building permitted therein, they must do so in accordance with The Planning and Development Act, 1983 .

That Act specifically provides for an appeal procedure when applicants for a discretionary use feel the conditions attached to their development by a council are excessive. The resort village’s zoning bylaw incorporates the appeal procedures set out in The Planning and Development Act, 1983 . In order to make an appeal the Mushkas needed to know what conditions the resort village was attaching to their development.

If the resort village intended that the Mushkas’ development had to be in accordance with their September 25, 1995 letter and drawing, they did not say so. [ 47 ] Once the resort village approved the Mushkas’ discretionary use, s. 3.5(4) of the zoning bylaw provided that that resolution could be revoked “...[w]here an approved development is not being developed in accordance with the provisions of this bylaw, or with the standards and conditions specified in the Development Permit...”. [ 48 ] It is clear from the evidence that it was the resort village’s view that the Mushkas had to complete their development in accordance with the September 25, 1995 letter and drawing.

It is also clear that the Mushkas felt they were complying as long as they put a second storey on the trailer and made it look like a “house” as opposed to a mobile home. The Court accepts Mr. Mushka’s evidence that he did not tell the resort village about his change in plans because he did not think he needed council’s approval. The Mushkas accepted without question Mr. Mauthe’s representation that council needed to approve any changes to their plan. The correctness of Mr. Mauthe’s advice is not in issue.

Accordingly, I will refrain from commenting on the approach taken other than to say it was here the resort village embarked on a course of action that appears to be totally unreasonable. The resort village’s position was made very clear by the testimony of Mr. Mauthe and Dale McLeod. The issue for the resort village was not whether the project would convert the mobile home into a two storey house and maintain the residential character of the area.

The sole issue for the resort village was that the Mushkas must follow the plan set out in their September 25, 1995 letter and drawing or they could not proceed with their development. The evidence of Dale McLeod was particularly compelling. He was not happy that the Mushkas had been allowed to move a mobile home onto an R-1 Residential lot. [ 49 ] The resort village argues the request by the Mushkas to alter their plan was not an application for discretionary use and therefore the appeal procedures and requirements set out in s. 3 of the zoning bylaw do not apply.

They argue it was within the discretion of the council for the resort village to revoke permission for the development because the Mushkas did not comply with the plan as set out in the September 25, 1995 letter and drawing. The Court finds that Resolution 231-95 set out all the standard conditions the Mushkas had to meet. The Mushkas did not require the resort village’s approval to change their plan so long as they met the standard condition of converting the mobile home into a two storey house.

The material and architectural details would be up to the Mushkas so long as they complied with all building standards and codes. [ 50 ] The village argues that they had the right to revoke their permission because the development did not “blend in” with the residential character of the district. They say that they are the sole arbiters of what maintains the residential character of the area.

While there is some merit to the resort village’s position, any decision which affects the property and rights of individuals must meet the requirements of procedural fairness. [ 51 ] The resort village’s first resolution, being No. 203-97, came about after the Mushkas submitted their August, 1997 letter to the council requesting a change to their plan. The new plan still provided for a second storey and the goal was still to convert the mobile home into a “house”. This matter was put on the council agenda for the September 9, 1997 meeting at the Mushka’s request. I accept Mr. Mushka’s evidence that he felt Mr.

Mauthe would adequately present their position to council. It is clear from their evidence that the Mushkas did not anticipate a problem. It is also clear that they had limited participation in the passing of Resolution No. 203-97. That resolution deals with matters that were not raised by the Mushka’s letter, for example, footings and the removal of the mobile home. These two matters were dealt with without notice to the Mushkas and without giving them an opportunity to be heard.

Moreover, the result of this resolution was to attach new standard conditions to the Mushkas’ development i.e that they must now comply with the plan as set out in their September 25, 1995 letter and drawing. The process used by the village amounted to treating the Mushkas’ letter of August, 1997 as an application for a discretionary use.

The village’s authority to do that was not argued before me but in applying that procedure the village should have advised the Mushkas of the appeal procedure available as required by s. 3 of their zoning bylaw and s. 74(4) of The Planning and Development Act, 1983 and should have provided written reasons for their decision as required by s. 3 of their zoning bylaw. [ 52 ] The other two resolutions in issue, being Resolution No. 181-98 and the October 6, 1998 resolution dealt with forcing the Mushkas to comply with the plan as set out in their September 25, 1995 letter.

Those resolutions were made without any notice to the Mushkas and without giving them an opportunity to be heard. Those resolutions had adverse consequences to the Mushkas’ rights and property and in the interests of procedural fairness, the Mushkas should have received notice and been given an opportunity to be heard. [ 53 ] While the resort village’s decisions in this case were not judicial decisions and involved a considerable exercise of discretion, they nevertheless affected the Mushkas’ rights and property. The resolutions approving the stop work order and removal of

the trailer were final and of significant importance to the Mushkas. The circumstances required a full and fair consideration of the issues and the Mushkas, whose interests were significantly affected, should have been given a meaningful opportunity to be heard. This does not mean the resort village was required to hold a “hearing” but they should have provided the Mushkas with notice of their position and concerns and allowed the Mushkas to be heard on those issues before rendering any decision.

The failure of the resort village to provide the Mushkas with notice and afford them a proper opportunity to be heard constitutes a violation of the requirements of procedural fairness. Reasons [ 54 ] The duty of fairness does not always require that reasons be provided for administrative decisions. The usefulness of reasons has long been recognized. Reasons make decision making more transparent. They reduce the chances of arbitrary or biased actions and they increase confidence in the decision making process.

The Supreme Court of Canada in Baker recognized that in some circumstances the duty of procedural fairness will require reasons be provided for decisions, for example, when the decision has important significance for the individuals or there is a statutory right of appeal. [ 55 ] Sara Blake, in her book Administrative Law In Canada , 3d ed. (Markham: Butterworths, 2001), at page 85, asserts that elected bodies that make decisions by way of a vote “...cannot give reasons for [a] decision because each member may have different reasons for voting for or against a measure....” She cites the Manitoba Court of Appeal decision in Kirkfield Park & Arthur Oliver Residents Assn.

Inc. v. Winnipeg (City) , 1996 CanLII 7292 (MB CA) , [1996] 4 W.W.R. 393 (Man. C.A.) , leave to appeal to the Supreme Court of Canada refused October 3, 1996. Applying that case to the situation before me, reasons would not be required. Bias and bad faith [ 56 ] Finally, the Mushkas argue that the resort village was biased and/or acted in bad faith in passing the resolutions. The duty of procedural fairness includes a duty to act in a manner that does not give rise to a reasonable apprehension of bias ( See: Baker v.

Canada, supra ). [ 57 ] The test for reasonable apprehension of bias approved by the Supreme Court of Canada was set out by Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board) , 1976 CanLII 2 (SCC) , [1978] 1 S.C.R. 369 at 394 : ...The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude.

Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly”. [ 58 ] The Saskatchewan Court of Appeal in Harker v. Regina (City) (1995), 1995 CanLII 3906 (SK CA) , 128 Sask. R. 224 (C.A.) dealt with the issue of bias. At para. 14 of that decision, Justice Sherstobitoff, speaking for the Court, adopted the reasoning of Kerans, J.A. in Aitkens et al. v. Calgary (City) et al. (1994), 1994 ABCA 385 (CanLII) , 162 A.R. 97 (Alta C.A.) at pages 9-10 : This was the precise issue in the Old St. Boniface case.

Rejecting the approach earlier taken by it in Wiswell v. Metropolitan Corporation of Greater Winnipeg , 1965 CanLII 106 (SCC) , [1965] S.C.R. 512 , the Supreme Court held that, where political and legislative duties are engaged, fairness requires only that the predisposition of the legislators not be so firm that submissions are futile because minds are utterly closed. That is quite different from a claim that fairness commands that minds must be utterly open. [ 59 ] The evidence in this case discloses the mayor, Dale McLeod, was biased in making the decisions in issue.

It is clear from his testimony that he did not approach the Mushkas’ situation with an open mind. He made it quite clear that his mind was closed and that nothing the Mushkas could have said or done would have changed his mind. Such bias should have disqualified Mr. McLeod from participating in the decision. He was, however, only one member of the council for the resort village. He could not pass the resolutions in issue except as part of a quorum of that council. There was no evidence that any other member of the council was biased. Mr.

McLeod’s bias is insufficient to taint the whole council. (See: Save Richmond Farmland Society v. Richmond (Township) (1989), 1989 CanLII 2718 (BC CA) , 36 B.C.L.R. (2d) 49 , aff’d 1990 CanLII 1132 (SCC) , 52 B.C.L.R. (2d) 145 (S.C.C.) ) 5. Are the resolutions in issue improper and unenforceable on the basis they require the Mushkas to complete their renovations

in a “unsafe” and/or “illegal” manner? [ 60 ] The Mushkas argue the resolutions in issue are “illegal” because they require the renovations to the mobile home be completed in a manner that is unsafe or inappropriate. The evidence before this Court does not establish that. What the evidence does establish is that the Mushkas would be put to greater expense to safely and appropriately complete their original proposal. The Mushkas’ claim in this regard must fail. 6.

What, if any, damages have the Mushkas suffered? [ 61 ] The Mushkas claim damages against the resort village, arguing their renovations suffered “damages” as a result of their inability to complete them. The only evidence of such damage was that given by Mr. Mushka who testified there was water damage to the floor of the addition and around the windows. He estimated it would cost $20,000 to repair that damage. There was no evidence how the resort village’s actions caused this damage, the extent of the damage complained of or how the figure of $20,000 was arrived at. The burden of proof rests with the Mushkas.

A simple assertion that damage has occurred is not sufficient to meet that burden. The Mushkas’ claim for damages is dismissed. 7. Is the Mushkas’ claim barred by a limitation period? [ 62 ] The resort village argues the Mushkas cannot bring the within action because of the limitation periods set out in ss. 90 , 91 and 318 of The Urban Municipality Act, 1984 . Those sections do not apply to applications for judicial review. I agree with Justice Barclay’s statement in E.C. Argue Holdings Ltd. v. Edenwold (Rural Municipality) No. 158 (1999), 1999 CanLII 12500 (SK KB) , 179 Sask.

R. 142 (Q.B.) which dealt with similar provisions under The Rural Municipality Act, 1989 . At para. 11 of that decision, Justice Barclay stated: The purpose of s. 182 of The Rural Municipality Act, 1989 , is to establish a

summary procedure by which electors may challenge the validity of a bylaw or resolution. It does not prohibit an attack on a bylaw or resolution by way of judicial review . [emphasis added] CONCLUSION [ 63 ] The three resolutions of the Resort Village, being Resolution No. 230-97 passed on September 9, 1997; Resolution No. 181-98, passed on August 4, 1998; and the resolution passed on October 6, 1998 are quashed on the basis that the resort village did not comply with the principles of procedural fairness.

The Mushkas’ claim for damages is dismissed as are all claims against the defendant, Dale McLeod. [ 64 ] The plaintiffs shall pay to Mr. McLeod his costs to be taxed. The Resort Village of Candle Lake, shall pay to the Mushkas their costs to be taxed. Costs shall be taxed in accordance with

Schedule I “B”, Column 3 of The Queen’s Bench Rules of Court. ____________________ J.