SOUTHEAST REGIONAL SERVICE COMMISSION – PLANNING REVIEW v. ADJUSTMENT COMMITTEE,, 2022 NBKB 178

Southeast Regional Service Commission v. K. Cormier et al , 2022 NBKB 178 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MM/21/2022 BETWEEN: SOUTHEAST REGIONAL SERVICE COMMISSION – PLANNING REVIEW AND ADJUSTMENT COMMITTEE, Applicant – and – KRISTINE LEE CORMIER, JOSEPH REGIS CORMIER, MAJELLA CORMIER, and MARIE ALICE CORMIER Respondents DECISION BEFORE: Justice Jean-Paul Ouellette AT: Moncton, New Brunswick DATE OF HEARING: May 16, 2022 DATE OF DECISION: September 23, 2022 APPEARANCES: Timothy Bell , for the Applicant Ronald Cormier , for the Respondents Ouellette, J. INTRODUCTION

[ 1 ] Regis and Majella Cormier bought a real estate property in the early 1980’s originally used as a family cottage. This property was accessible by a private road leading to the lot. Over the years, the family continually expanded and erected new structures making it two distinct permanent residences occupied year-round. [ 2 ] Kristine Lee Cormier, subject to Mr. and Mrs. Cormier’s life estate, held the title to this property for the purpose of the procedure undertaken in this matter. Her interest in the property was later transferred to her husband, Ronald Cormier, after their separation.

Their intent, in submitting this subdivision plan was for each party to have their own title to their perspective residences. [ 3 ] Southeast Regional Service Commission Planning and Adjustment Committee (“PRAC”) is seeking to remove into this Court and quash a decision of the Assessment and Planning Appeal Board (“APAB”) dated December 3, 2021. [ 4 ] The decision of APAB reversed a decision made by PRAC refusing to approve a variance for the creation of a new lot as it was not on a public street and not within the width requirements of a lot in compliance with the by-laws for subdivision regulations in the Village of Memramcook, New Brunswick. [ 5 ] For the reasons that follow, the Court is of the opinion that the APAB decision of December 3, 2021, is unreasonable and should be removed into this court and quashed.

FACTUAL BACKGROUND [ 6 ] In 2018, the Cormiers submitted a variance request to the PRAC to reduce the required access width of their lot in Memramcook and to create access from a private road to this lot. In 2018, the PRAC denied the request. [ 7 ] A second application was submitted to the PRAC in 2020 for two variances:

a) To reduce the required lot width from 54m to 44m for the creation of lot 1 7- 1; and

b) Allowing access to lot 16-1 other than via a public street. [8] Following its meeting, the PRAC passed two unanimous motions to refuse the variance requests. [9] The Respondents appealed to the APAB and, following a hearing, the APAB issued its decision on December 3, 2021. APAB DECISION [10] The APAB held that it was unreasonable for the PRAC to refuse the proposed subdivision and refuse the requested variances.

In allowing the appeal, it directed the PRAC to approve the variances requested for the reduction of the required lot width and to approve the subdivision plan subject to various conditions and restrictions such as the owners being responsible for snow removal, that they have no access to any public services and the duty to disclose to potential purchasers those conditions and restrictions. [11] The APAB recognized its statutory jurisdiction found under the Community Planning Act, pursuant to subparagraph 120(1) (a)(ii). 120(1) Subject to subsection (2), a person, including the Director, may appeal to the Board if he or she alleges that: (

a) the terms and conditions imposed or the prohibition of his or her development in accordance with paragraph 53(3)(c), the refusal to approve his or her regional or other development in accordance with subsection 20(1) or paragraph 108(1)(

a) or (

b) or the refusal to grant him or her a permit under this Act or the terms and conditions attached to a permit, […] (ii) would cause him or her special or unreasonable hardship not subject to alleviation under

section 55 or 78 or for which alleviation was unreasonably refused. [12] From this statutory jurisdiction, the APAB set its reasons with the following three questions that must be answered:

a) Does the Planning Committee’s refusal cause the Appellants special or unreasonable hardship?

b) If so, was alleviation from that hardship unreasonably refused by the Planning Committee?

c) If not, was the Planning Committee’s refusal unreasonable? [13] The APAB confirmed that there was no hardship as one can read at page 13 of its decision: The evidence presented before the Board in this case is sufficient to demonstrate that the Appellants suffered [no] special or unreasonable hardship as a result of the PRAC’s refusal to grant the application for a variance. Therefore, the Board concludes the answer to question No. 1 is “No”.

Since the answer to question No. 1 is “No”, there is no need to deal with question No. 2. [14] After drawing these conclusions, the APAB went on to inquire if the PRAC’s refusal was unreasonable and concluded that the request was unreasonably refused and, in their decision, wrote the following: Unreasonable Refusal

In regard to question No. 3, since the application for a variance regarding the width and access of the potential subdivision was subject to alleviation under

Section 55 of the Act that leaves the Board with the question of whether or not the application for a variance was unreasonably refused. When the Board examined the minutes of the PRAC meeting and the evidence of the witnesses at the hearing, it concludes that an important factor in the refusal of the variance application was the notion that the location of the Property was not suited for the development of the lot as proposed.

The foundation for the Respondent’s reasoning was that the lots would not have access to a public road and would be limited in public services, especially emergency services and winter services such as snow removal. The main concern was regarding the general standard of safety and access, the question of width was a secondary question for PRAC. There is no evidence before the Board that the PRAC attempted to address any potential issues by adding terms and conditions to the proposed use which was supported by the Council of the Village of Memramcook.

Section 55(1) of the Act grants the PRAC the power to impose certain terms and conditions when reviewing an application. Although this power is discretionary in nature, it must be interpreted within the context of

Section 55 as a whole. As was noted by this Board in Malmane v. Greater Moncton P.A.C. , 1999 NBAPAB 43 : The power to grant variances [and similar and compatible uses] is contained in the Act in order to inject flexibility into an otherwise inflexible by-law. If planning considerations were the only ones brought to bear in such a decision, then it is difficult to imagine circumstances where a variance would be granted. By-laws are drafted based on planning considerations.

Variances [and similar and compatible uses] on the other hand, are intended to lessen the rigidity of the planning principles by taking into account the realities of a particular situation provided that the proposal meets the general intent of the by-law. In the instant case, the general intent of By-law No. 38 - Rural Plan, Zoning By-Law, is to govern rural lots by providing guidelines for the lots and their subdivisions. Furthermore, the Zoning By-Law No. 39 - Subdivision By-Law stipulates that each subdivision if not on a public road be useful for the development of the lot.

Section 10.2(5) of By-law No. 38 – Rural Plan reads as follows: 10.2(5) Lots serviced by a private water system must be approved or exempted by the Minister of Health and Environment and must have:

a) in the case of a single-family dwelling or a building or structure that is not used for residential purposes,

i) a width of at least 54 meters on a public street; ii) a minimum depth of 38 meters; and iii) and area of at least 4,000 square meters; The Municipal Plan By-law serves to outline the development policies and objectives of the Village of Memramcook over a period of several years. The Board notes the By-Law No.39 – Subdivision By-Law, sets out development objectives, which reads as follows: 6.1 Each lot, block or other parcel of land in a subdivision project must be on a public street or other access road that the Commission may approve as being useful for the development of the lot.

Taking into consideration the stated general intent of By-laws No. 38 and No. 39, the Board considers that the Appellants’ proposed subdivision does not meet all three requirements of By-Laws No. 38. However, the Board is of the opinion that the subdivision can be useful for the development of the lot.

The Board also accepts that the proposed subdivision is useful for the development of the lot for the following reasons: it aims to create distinct lots for two separate houses that are currently located on the same lot; the subdivided lots would not need further assistance from the municipality regarding services since they have been there permanently and they have taken care of their own garbage removal, snow removal and other services. The Municipal Council in Memramcook had also accepted and supported the subdivision with the condition that the municipality not be responsible for the potential risks.

Furthermore, there would be a significant investment loss since as of now the appellants cannot sell or refinance their individual homes as they are located on the same lot. As the Board previously noted, the Act provides for variances under Section 55(1) in order to allow a certain amount of flexibility in instances where a by-law is too rigid to address a particular situation. There is a reason that the Act provides for planning advisory committees to have discretionary powers to impose terms and conditions.

This reason is to make certain that where a proposed variance or similar and compatible use may be refined by terms and conditions in order to better respond to the intent of the by-laws to assure that alleviation is not unreasonably refused. [15] The APAB concluded that it was unreasonable for the PRAC to refuse the proposed subdivision of the lot and granted the required variances. [16] The APAB’s decision is subject to an application for judicial review. ISSUES [17] The issue to be decided in this matter is as follows:

a) What is the standard applicable to a judicial review?

b) Was the decision of APAB reasonable?

ANALYSIS AND CONCLUSION [18] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 , [2019] 4 SCR 653, the SupremeCourt established a presumption that reasonableness is the applicable standard in all cases and reviewing courts should derogate fromthis presumption only where required by a clear indication of legislative intent or by the rule of law. [19] In Brown v.

GNB et al, 2021 NBQB 28 , the Court confirms that an application under the Community Planning Actis no exception to that presumption of reasonableness as the applicable standard for review. [20] The APAB’s conclusion on question one and two should have ended the matter and by adding a third question, whether thePRAC’s refusal was unreasonable, is not within the APAB’s jurisdiction. [21] In Dugas v.

Commission d'aménagement de la péninsule acadienne, (NB CA), Drapeau, J.A. discussedthe purpose of variances, citing text from Municipalities and Canadian Law: Defining the Authority of Local Governments, as variancesare used to escape the hardships caused by rigid by-laws in those terms: “[…] Insisting on compliance with the letter of the bylaw in all such situations would often cause hardships that could not be justified byprejudice to either the intent and purpose of the bylaw or harm to neighbouring properties. […] […] Even if a municipality were sympathetic with the plight of an owner facing needless hardship, a bylaw amendment offers at best aprocedurally complex, time-consuming, and expensive remedy to the problem. [22] It goes without saying that the rigid application of aby-law could cause hardship and variances are to alleviate a person from the hardship caused by an inflexible by-law. […]” [22] On the flipside, however, a variance is not meant to be a tool to avoid planning goals.

Simply because a by-law causes someinconvenience or an undesired outcome is not sufficient to issue a variance. Importantly, when there is no hardship, there is no reason toexamine the reasonableness of a variance refusal. [23] To summarize, the APAB’s jurisdiction to review the “reasonableness” of the refusal of a variance is only triggered when ahardship is present. [24] The APAB’s limited jurisdiction is confirmed by jurisprudence from our Court of Appeal which states that it is not theAPAB’s role to take on the function of the PRAC. In the matter of Westfield (Village) v.

Wambolt, (NB CA),(“Wambolt”), Hoyt, J.A. explained the scope of the APAB’s role: [10] […] For example the Board noted that it "would greatly increase the construction costs" to build the garage elsewhere on the lot andthat it was "mandatory" for the garage to be constructed somewhere near the proposed location. But this reasoning can only lead us toconclude that the Board simply put itself in the position of the Committee by undertaking an inquiry entrusted to the Committee by s.35(

b) of the Act. While this provision permits a reasonable variance from the requirements of a zoning bylaw, it requires the Committeeto be of the opinion that the variance is desirable and that it be in accordance with the general intent of the bylaw. But this does not meanthat the Board can undertake the Committee's function. It can only determine if the Committee's refusal caused Mr.

Wambolt special orunreasonable hardship not subject to alleviation or that alleviation was unreasonably refused. [26] Justice Hoyt’s statement highlights thefact that the discretion is by the Committee, i.e., the PRAC, and not the APAB. He makes clear, however, that it is not for the APAB todecide whether it is desirable or in accordance with the general intent of the by-law.

That role is solely for the PRAC. [25] Secondly, the statement from Wambolt confirms that the APAB’s reviewal role is triggered where alleviation from hardshipwas unreasonably refused. [26] In the present matter, the APAB decided that the Respondents suffered no unreasonable hardship in this matter. The APABalso held that it did not have to examine the second question, that is, whether the alleviation was unreasonably refused for obviousreasons. [27] In La Commission de Services Régionaux du Nord-Ouest v.

Somers et Vigneault rendered on October 7, 2020, Robichaud,J. confirmed, in reference to subparagraph 120(1)(a)(ii) in a similar appeal, that it is not the APAB’s role to determine if the PRAC’sdecision was reasonable.

He explained: [TRANSLATION] “[14] After reading over the full decision, I can conclude only that, in effect, the Board did not base its decision on the grounds givenby the respondents and set out in the Act, but it reviewed the Committee’s decision for the purpose of determining whether the decisionwas reasonable. [15] In an appeal under subparagraph 120(1)(a)(ii), the Board’s role is not to determine whether the Committee’s decision, madepursuant to

section 55, was reasonable, but only to determine whether the decision caused the respondents special or unreasonablehardship not subject to alleviation under

section 55 or 78 or for which alleviation was unreasonably refused. See the decision of this Courtof Appeal in Westfield (Village) v. Wambolt, (NB CA), in paragraph 10, and the decision of Justice Christie of thisCourt in Southwest New Brunswick Service Commission v. Garth Browne et al., 2020 NBQB 178.” [28] At bar, the APAB did exactly what was not to be done, i.e. determine if the PRAC’s decision was reasonable. Thereasonableness standard of review does not allow administration decision makers to assume powers which the legislator never wanted toconfer to them. [29] In analysing whether the PRAC’s decision was “reasonable”, the APAB acted outside its statutory authority. Consequently,

the APAB’s decision in this matter is unreasonable. [30] In addition to the APAB acting outside its statutory authority, its decision demonstrates that the APAB’s practices areinconsistent. [31] The issues with the APAB’s inconsistent practices are, firstly, in failing to consistently apply the same test to similar matters,being a two-part test and not a three-part test. [32] In Vavilov, supra, the Supreme Court at paragraph 131 indicated that “[w]hether a particular decision is consistent with theadministrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether anadministrative decision is reasonable”. [33] The APAB’s inconsistent practices relate to its application of subparagraph 120(1)(a)(ii).

In particular, it appears that the testapplied depends on the makeup of the APAB panel. [34] For instance, while the instant case proceeded on a three-step test in which the APAB analyzes the “reasonableness” of thevariance decision, other decisions, such as Laurent Lanteigne c. Comité de révision de la planification de la CSRPA, 2021 NBAPAB 4, determine whether an appellant can show a special or unreasonable hardship.

In Lanteigne, the APAB’s conclusion did notapply a three-part test and did not look at whether the refusal to issue a variance was unreasonable. [35] The APAB’s conclusion in Lanteigne is as follows: Considering all the evidence, the Commission concluded that the CRP's decision does not cause the Appellant to suffer from anyparticular or unreasonable discomfort. We accept the definition of special or unreasonable discomfort set out in Chamberlain v.

The Cityof Bathurst (supra) as follows: "Having the effect of causing oppression or a need or something difficult to bear and which is out of thenormal or ordinary, or which is not based on reason and common sense or is not in conformity with it". For the reasons set out, the Commission finds that the Appellant has failed to demonstrate that the PRAC's decision to deny his requestfor exemption causes him particular or unreasonable discomfort within the meaning of subparagraph 120(1)(a)(ii) of the Act. The appeal is therefore dismissed. [36] Other matters did not apply a three-part test, including:

a) Allan Arpin and Aeron Elizabeth Arpin-Johnson v. Restigouche RSC, 2021 NBAPAB 9 ;

b) Nicole Doucet c. CSR Chaleur, 2018 NBAPAB 6 ;

c) Michel Mills v. Moncton PAC, 2021 NBAPAB 8 ; and

d) Marc André Brun v. Southeast RSC, 2020 NBAPAB 6 (“Brun”). [37] In Brun, supra, the Board recognized its role was not to second guess every variance decision: [32] It is not for this Board to second-guess every decision on a variance made by a planning commission.

These are necessarilysubjective and are reached after input from trained planning staff and the examination by local people of local issues. [38] The APAB’s decisions, listed above, demonstrate that the test applied to subparagraph 120(1)(a)(ii) in the within matter isinconsistent with the test the APAB has applied in other matters. [39] As the Supreme Court of Canada said in Vavilov at paragraph 131, where a decision maker departs “from longstandingpractices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons.” [40] Here, based on Vavilov, the APAB was required to justify its departure from its previous

interpretations and decisions. Infailing to do so, its decision runs the risk of being arbitrary and cannot be said to be reasonable. [41] Furthermore, in Vavilov, the Supreme Court said that when a decision maker departs from longstanding practices orestablished internal authority, it bears the justificatory burden of explaining that departure in its reason. Absent the justification, thedecision will be unreasonable. [42] At bar, the APAB applied the reasonableness test to the wrong provision of the Act.

In its decision, the APAB confirms thatthis matter went before the Board pursuant to subparagraph 120(1)(a)(ii) of the Act. [43] However, the APAB then applied the reasonableness test which the Board has used in other cases when consideringsubparagraph 120(1)(a)(i)(b), i.e., the misapplication provision. [44] For example, in Brun, the APAB examined whether the PRAC’s variance refusal was unreasonable in the context of themisapplication provision. [45] In Brun, when it came to the hardship provision under subparagraph 120(1)(a)(ii) of the Act, the APAB did not examinewhether the refusal was unreasonable. [46] This unexplained departure from internal authority, at bar, makes the decision unreasonable. [47] Notwithstanding the APAB’s inconsistent approaches with respect to misapplication and unreasonable hardship, the APAB in

this matter failed to apply its own test in determining reasonableness. [48] In the decision of Colpits v. Greater Moncton P.D.C, 2000 NBAPAB 17 , William T. Grant, Chairman of theProvincial Planning Appeal Board (as he then was), said the following about a planning commission’s discretionary power: In examining the reasonableness of a variance, this Board must also keep in mind that the discretion to grant variances is given by theCommunity Planning Act to the Planning Commission.

Provided they do not act in a manner that is discriminatory, arbitrary orcapricious, then it would be a rare circumstance where their discretion would be overruled by this Board. [emphasis added] [49] Despite the APAB’s jurisprudence acknowledging that overruling a planning decision based on unreasonableness would berare and would require discrimination, arbitrariness or capriciousness, the APAB in this matter neither referred to this jurisprudence norapplied this test. [50] Instead, the APAB first recognized the PRAC’s reasons for the refusal, including:

a) The location of the property was not suited for the development of the lot;

b) The lots would not have access to a public road; and

c) The lots would be limited in public services, especially emergency services and winter services such as snow removal. [51] The APAB decision indicates that the PRAC’s “main concern was regarding the general standard of safety and access, thequestion of width was a secondary question for PRAC”. However, this does not square with the PRAC’s meeting minutes, at page 4 of13, where it reads: “The condition of the road and the creation of a lot on a private access is the main concern of staff with thisapplication.” [52] The record before the APAB contained ample support for the PRAC’s decision.

In its staff report, in the Discussion section,the PRAC wrote: The intent of the Act is that each lot should abut a public street, with some exception under a single condition demonstrated in thelegislative authority given to lands that abut “such other access as may be approved by the Commission as being advisable”. This sectionshould be used with caution and only in exceptional circumstances. This

section should not be used to create a secondary road system oras an affordable means of intensification of land use, such as residential subdivisions on a private access road.

Given the liability issuesand the high potential for land use conflict that results from the creation of lots on a private road, this cannot be considered desirable forthe development of residential lots. [53] PRAC’s analysis also identified other issues with the variance request, such as: a) “There is no record of permits issued by the Commission for the two dwellings and the accessory buildings currently located onPID 70538053.”; b) “Access to the land is via a private road […] and weaves around farm buildings.”; c) “The access is also outside the established right of way for the private road.”; and d) “[…] certain minimum conditions apply to the lot and in particular to an access on a serviced public municipal road that willguarantee the uses that a residence requires, i.e. garbage collection, school transportation, snow removal and especially accessprovided to emergency services at all times (police, fire department, ambulances).

The cul-de-sac configuration of this access does notmeet the minimum security and accessibility criteria required.” [54] The PRAC’s staff report set out the test it was required to apply in assessing the variance request, namely: a) “Is it reasonable?”; b) “Is it desirable for the development of the property?”; c) “Is it within the general intent of the zoning regulations?”; and d) “Is it within the general intent of the Rural Plan?”. [55] The PRAC applied the test, conducted its analysis and recommended that the variance request be rejected.

Here, the PRACconducted the proper analysis and decided against issuing the variance. Despite the PRAC’s analysis of the situation and application ofthe proper test, the APAB impugns the decision, stating: “There is no evidence before the Board that the PRAC attempted to address anypotential issues by adding terms and conditions to the proposed use which was supported by the Council of the Village of Memramcook.” [56] Respectfully, the burden imposed by the APAB is an error. The PRAC was not required to attempt to address any potentialissues by adding terms and conditions.

Rather, as indicated by Justice Hoyt in Wamboldt, supra, the PRAC was to examine the variancerequest and could issue one, but only if it is of the opinion that the variance is desirable and in accordance with the general intent of theby-law. [57] The APAB’s conclusion that the PRAC’s refusal was unreasonable did not consider whether the discretionary decision wasdiscriminatory, arbitrary or capricious. Instead, the APAB undertook its own analysis, applied its own standard, and determined itwould have reached a different conclusion.

[58] The PRAC submits that the APAB’s conclusion in this regard is unreasonable as the APAB undertook the PRAC’s function and, furthermore, failed to apply its own jurisprudence to the question of reasonableness. [59] The APAB ordered the PRAC to approve the variances requested and to approve the Respondents’ subdivision plan. The APAB also imposed the following conditions on the subdivision plan and the Respondents:

(1) That the owners of the subdivided lots be responsible for snow removal;

(2) That the owners agree and acknowledge that any and all public services such as snow removal, garbage collection and emergency response services be waived through a signed waiver; and

(3) That the owners agree and acknowledge that they have a duty to disclose to potential purchasers the conditions and restrictions of having permanent residence on said lots. [60] The terms and conditions APAB imposed and its reasons are inconsistent with the remedial authority on which it relied, namely subparagraph 121(1)(

b) of the Act : 121

(1) With respect to an appeal under paragraph 120(1)(a), the Board may […] (

b) allow it by approving the regional or other development or ordering the granting of the permit, as the case may be, subject to the terms and conditions as the Board considers necessary to ensure consistency with this Act or a by-law or regulation under this Act, or […] [61] The APAB’s terms and conditions are not necessary to ensure consistency with the Act , a by-law or a regulation under the Act .

Rather, the terms and conditions imposed by the APAB address issues of potential liability and transfer the responsibility of municipal services to others as well as a duty of disclosure by the Respondents to any future purchaser of the existence of those terms and conditions. [62] The terms and conditions imposed by the APAB do not conform to the remedial powers it has.

Accordingly, like the outcome in Southwest New Brunswick Service Commission v Garth Browne et al , 2020 NBQB 178 (unreported) , the decision cannot stand as being reasonable. [63] The Court states that subparagraph 120(1)(a)(ii) under the Community Planning Act requires a hardship to trigger the right to appeal. If no hardship is present, as in the case at bar, no alleviation (from hardship) is required and therefore there is no jurisdiction to analyze the “reasonableness” of the refusal.

In other words, only when alleviation (from hardship) is unreasonably refused can the matter be appealed. [64] For the reasons set out herein, the decision of APAB dated December 3, 2021, placed under review is removed into this Court and quashed. [65] As requested by counsel, there will be no order of costs. DATED at Moncton, New Brunswick this 23 rd day of September, 2022. ____________________________________ Jean-Paul Ouellette, Justice of the Court of King's Bench of New Brunswick