2019 NLCA 36, 2019 NLCA 36

Shirley French (first appellant) and Carol Barnes (second appellant) and William Barnes (third appellant) v. Eastern Newfoundland Regional Appeal Board (first respondent) and Town of Paradise (second respondent) (17/73) Indexed As: French v. Newfoundland and Labrador (Eastern Newfoundland Regional Appeal Board) 2019 NLCA 36 4 C.A.N.L.R. 481 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Goodridge JJ.A. June 3, 2019

Summary: The appellants, the owners of land they had inherited, sought authorization from the Town of Paradise, NL to divide the land into two lots. The Town concluded, on the basis of its Regulations , that to create the two lots required subdivision approval and the payment of “open-space” and “park-outfitting” fees amounting to $23,080. The owners unsuccessfully appealed the Town’s decision to the Eastern Newfoundland Regional Appeal Board and the Supreme Court of Newfoundland and Labrador. They then appealed to the Court of Appeal. Held: Appeal dismissed.

Welsh J.A. (Fry C.J.N.L. and Goodridge J.A. concurring): At issue in the appeal is whether the judge in the Court appealed from erred in concluding that the

interpretation of the Regulations by the Board was reasonable in determining that the division of the land into two lots was a comprehensive subdivision warranting the imposition of open-space and park-outfitting fees. T he Urban and Rural Planning Act, 2000 authorizes a town to make regulations requiring that, when an application is made for a subdivision of land, the applicant may be required to dedicate a portion of the land for public use. In this case, the Town has made Development Regulations ,

Part IV of which imposes a requirement to dedicate land for public use or to pay an open-space fee where an application for subdivision relates to a comprehensive subdivision.

Section 74 of the Development Regulations provides that a subdivision is a comprehensive subdivision where the subdividing of land is proposed to include, or is required by the Council to include infilling of two or more lots on an existing public street. The Board’s

interpretation of the Regulations raises a question of law for purposes of an appeal pursuant to section 46(2) of the Act . The applicable standard of review is reasonableness. Questions of law of general application to the legal system as a whole and outside the Board’s expertise, complex common law rules and conflicting jurisprudence, decisions of competing specialized tribunals, and similar issues requiring a standard of correctness do not arise on the facts of this case. In determining that the division of the land into two lots amounted to a comprehensive subdivision, the Board relied on

section 74(

c) of the Regulations . While the Board’s reasons for applying

section 74(

c) of the Regulations are skeletal, the factual basis was laid for determining, as it did, that the division of the land into two lots was for the purpose of residential development. The inference may be drawn that it was expected that the two lots were being created for the purpose of each holding a residence. In the absence of a definition of “infill” in the Regulations , it was reasonable for the Board to look to the provision in the Town’s Municipal Plan for assistance. While there may have been alternative

interpretations of

section 74 (

c) in these circumstances, it is clear that the Board was alive to the question at issue. A determination that the division of the owners’ land into two lots constituted a comprehensive subdivision warranting the imposition of open-space and park-outfitting fees was within the range of reasonable outcomes.

There is no basis on which to allow the appeal. Cases cited: Canadian National Railway Co. v. Canada (Attorney General ), 2014 SCC 40 , [2014] 2 S.C.R. 135 Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development ), 2018 SCC 4 , [2018] 1 S.C.R. 83 Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 Service NL v.

Penney , 2019 NLCA 27 Counsel: Sarah Clarke, for the first, second and third appellants; No appearance by the first respondent; Jonathan Dale, for the second respondent. This appeal was heard before Fry C.J.N.L., Welsh and Goodridge JJ.A. on February 12, 2019. The following judgment was filed on June 3, 2019 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] The appellants, the owners of land they had inherited, sought authorization from the Town of Paradise, NL to divide the land into two lots.

The land is located in a residential, un-serviced rural area of the Town. The Town concluded, on the basis of its Regulations , that to create the two lots required subdivision approval and the payment of “open-space” and “park-outfitting” fees amounting to $23,080. The owners appealed the Town’s decision to the Eastern Newfoundland Regional Appeal Board. The Board dismissed the appeal, which was then unsuccessfully appealed on that issue to the Supreme Court, General Division. The owners now appeal to this Court.

BACKGROUND [ 2 ] The owners originally applied to divide the land into three lots, but were advised that the area was not sufficiently large to permit division into more than two lots. When the owners then applied on August 23, 2013 for approval to divide the land into two lots, the Town advised them that the Town of Paradise Development Regulations, 2004 , authorized under sections 35 and 37 of the Urban and Rural Planning Act, 2000 , SNL 2000, c.

U-8 , required development approval and the payment of an open-space fee based on the value of the land, amounting to $22,080 (in lieu of conveying a portion of the land for open-space purposes), and a park-outfitting fee of $1,000.

On August 28, 2013, the owners asked the Town to waive the fees. [ 3 ] In the appeal to the Supreme Court, General Division, the judge summarized (2017 NLTD(G) 64): [10] The [owners’] request to waive the subdivision fees was considered and rejected in a privileged meeting of council on September 3 rd , 2013 and communicated to the [owners] by correspondence dated September 5 th , 2013. On the same date the Town issued a development approval which also required a $1,000 park outfitting fee.

In total therefore the [owners] were required to pay and have paid a total of $23,080 in fees required for the subdivision approval. [ 4 ] The appeal of the Town’s decision to the Board was based on four grounds: (1) the division was not a “comprehensive subdivision” as defined in the Regulations ; (2) the Town failed to provide the option of identifying land available for open-space purposes in lieu of the fee; (3) the Regulations purport to eliminate the Town’s discretion to waive the open-space fees; and (4) the park- outfitting fee was not applicable.

The Board dismissed the appeal, concluding that the Town had the necessary authority to impose the fees under the Regulations . [ 5 ] On appeal to the Supreme Court, General Division, the judge upheld the decision of the Board affirming the Town’s conclusion that dividing the land into two lots amounted to a comprehensive subdivision, but the judge remitted the matter to the Town to comply with the procedure relating to the open-space requirement:

[85] The Board’s characterization of the division of the Property as a comprehensive subdivision of land under

section 74(

c) of the Town’s Development Regulations warranting development and park outfitting fees was a justifiable

interpretation of the legislative provisions applicable notwithstanding that there were other outcomes. The conclusions meet the standard of review of reasonableness. [86] The Board’s

interpretation of section 109(2) of the [ Urban and Rural Planning Act, 2000 ] and 21(8) of the Town’s Development Regulations (relative to the staff’s ability to consider waiver of the subdivision fee) also meets the standard of review of reasonableness. [87] The Board exceeded its jurisdiction and erred in law in upholding the Town’s Decision to fix the development fees without first giving the applicant the opportunity to reach agreement with the Town and failing which the matter was to be referred to a Board of Arbitrators as required under section 37(4) of the [ Urban and Rural Planning Act, 2000 ].

The decision in this regard does not meet the standard of review of correctness and must be remitted back to the Town to follow the provisions of section 37(4) of the [ Urban and Rural Planning Act, 2000 ] in establishing development fees. [ 6 ] The only issue under appeal in this Court is that which was dealt with in paragraph 85. The issue addressed in paragraph 87 has not been appealed or cross-appealed. Accordingly, I make no comment on the judge’s determinations in that paragraph. ISSUES [ 7 ] At issue in this appeal is whether the judge in the Court appealed from erred in concluding (1) that the

interpretation of the Regulations by the Board was reasonable in determining that the division of the land into two lots was a comprehensive subdivision warranting the imposition of open-space and park-outfitting fees, and (2) that reasonableness is the appropriate standard of review regarding that issue. ANALYSIS Relevant Provisions of the Act and Regulations [ 8 ] A decision of the Board may be appealed to the Supreme Court, General Division pursuant to

section 46 of the Urban and Rural Planning Act, 2000 . The appeal is restricted to a question of law or jurisdiction:

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

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

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

(4) The court shall either confirm or vacate the order of the board and where vacated the court shall refer the matter back to the board with the opinion of the court as to the error in law or jurisdiction and the board shall deal with the matter in accordance with that opinion. (Emphasis added.) [ 9 ] The decision at issue in this appeal engages provisions of the Urban and Rural Planning Act, 2000 and the Town of Paradise Development Regulations . [ 10 ] The Act authorizes a town to make regulations requiring that, when an application is made for a subdivision of land, the applicant may be required to dedicate a portion of the land for public use.

Section 37 provides, in relevant parts:

(1) A council … may make regulations requiring that an applicant for a permit for a subdivision dedicate to the council … not more than 10% of the subdivision or land to be developed for park land or other public use. …

(3) Where it is not feasible or desirable to set aside a proportion of the land under subsection (1), the applicant may pay an amount of money to the council … that is equivalent to the value of the land in that subdivision that would have been conveyed under subsection (2).

(4) Where an agreement cannot be reached on the amount of money to be paid under subsection (3), a board of arbitrators shall fix the amount as if the land were expropriated under

Part IX. [ 11 ] “Subdivision” is defined in

section 2(

q) of the Act to mean: the dividing of land, whether in single or joint ownership into 2 or more pieces for the purpose of development; [ 12 ] “Development” is defined in

section 2(

g) of the Act to mean: … the making of a material change in the use, or the intensity of use of land, buildings or premises … [ 13 ] In this case, the Town has made Development Regulations in which

Part IV addresses “Comprehensive Subdivision of Land”. In that Part, where an application for subdivision relates to a comprehensive subdivision, the requirement to dedicate land for public use or to pay an open-space fee is addressed in

section 79, which provides, in relevant parts: Subject to

Section 37 of the Act, the Council may require the developer to convey to the Council title to an area of land for public use equal to, but not exceeding, 10% of the gross land area to be developed, provided that; (

a) the location and suitability of the land conveyed is acceptable to the Council,

(

b) in lieu of the conveyance of land, the Council may accept a sum of money equal to the value of the land. … [ 14 ]

Section 74 of the Development Regulations defines a comprehensive subdivision under

Part IV: This Part of the Regulations applies where the subdividing of land is proposed to include, or is required by the Council to include, one of the following: … (

c) infilling of two or more lots on an existing public street. This is considered a Comprehensive Subdivision of Land. [ 15 ] Where that definition is satisfied,

section 75 of the Regulations provides that the Council must first issue the relevant permit for a comprehensive subdivision. [ 16 ] Finally, regarding the jurisdiction of the Board to hear an appeal of the Town’s decision,

section 25 of the Regulations provides, in relevant parts: Where the Council makes a decision that may be appealed under

Section 42 of the Act , the Council shall, in writing, at the time of making that decision, notify the person to whom the decision applies of the: (

a) person’s right to appeal the decision to the appeal board; …

Section 29 of the Regulations provides: The Eastern Newfoundland Board of Appeal is established as the appeal Council for the Paradise Municipal Planning Area. … Appeal on a Question of Law or Jurisdiction [ 17 ] The threshold issue established by

section 46 of the Act is whether the appeal raises a question of law or jurisdiction. In this case, the Board had jurisdiction to hear the appeal from the Town’s decision, and, for that purpose, jurisdiction to interpret the Regulations , including sections 74 and 79. No question of jurisdiction arises. [ 18 ] However, the Board’s

interpretation of the Regulations raises a question of law for purposes of an appeal pursuant to section 46(2) of the Act because the

interpretation of a provision of a statute or regulations is a question of law ( Canadian National Railway Co. v. Canada (Attorney General ) , 2014 SCC 40 , [2014] 2 S.C.R. 135 , at paragraph 33 ). It is necessary, then, to determine the appropriate standard of review. Standard of Review [ 19 ] In Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , at paragraphs 60 and 61 , in determining the standard of review to be applied to the tribunal’s decision, Bastarache and LeBel JJ., for the majority, identified particular circumstances when a question of law will attract a standard of review of correctness.

Those situations include questions of law of general application to the legal system as a whole and outside the Board’s expertise, complex common law rules, conflicting jurisprudence, decisions of competing specialized tribunals, and similar issues. [ 20 ] In Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development ) , 2018 SCC 4 , [2018] 1 S.C.R. 83 , Wagner J., for the majority, also referenced a contextual analysis that may result in a standard of review of correctness: [27] … None of the points of statutory

interpretation or common law on which the Tribunal’s decision rests falls into the categories that this Court identified in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , at paras. 58-61 , as attracting a correctness standard. Nor does the Act provide any contextual indicators sufficient to displace the presumption that Parliament intended the Tribunal to be accorded deference on the

interpretation of the term “legal obligation” as used in s. 14: see Edmonton (City) v.

Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 , [2016] 2 S.C.R. 293 , at paras. 32-34 . [ 21 ] In the Edmonton (City) decision, Karakatsanis J., for the majority, wrote: [32] … The presumption of reasonableness may be rebutted if the context indicates the legislature intended the standard of review to be correctness [citations omitted]. [33] The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing. … However, as with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member.

Rather, expertise is something that inheres in a tribunal itself as an institution: “… at an institutional level, adjudicators … can be presumed to hold relative expertise in the

interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions” ( Dunsmuir , at para 68 ). As this Court has often remarked, courts “may not be as well qualified as a given agency to provide

interpretations of that agency’s constitutive statute that make sense given the broad policy context within which that agency must work” [citations omitted]. [34] As discussed, this Court has often applied a reasonableness standard on a statutory appeal from an administrative tribunal, even when the appeal clause contained a leave requirement and limited appeals to questions of law (see, e.g., McLean , Smith , Bell Canada ). …

[ 22 ] In applying a reasonableness standard, it is important to recognize that a question being considered by the tribunal may lend itself to more than one result; that is, the question “may give rise to a number of possible, reasonable conclusions” ( Dunsmuir , at paragraph 47 ). As discussed in Dunsmuir , a court reviewing a tribunal’s decision is “concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (paragraph 47). Further, as set out in Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 : [17] The fact that there may be an alternative

interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes.

Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful. … [26] In this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes. … [ 23 ] Recently, this Court applied a standard of reasonableness to a decision of this Board where the question of law was sufficiency of reasons to ground the tribunal’s decision ( Service NL v.

Penney , 2019 NLCA 27 , at paragraphs 19 to 22 ). The same conclusion regarding application of a standard of reasonableness applies in this appeal. The exceptions set out in the above decisions, resulting in a standard of review of correctness, are not engaged in this case.

Questions of law of general application to the legal system as a whole and outside the Board’s expertise, complex common law rules and conflicting jurisprudence, decisions of competing specialized tribunals, and similar issues do not arise on the facts of this case. [ 24 ] Rather, the rationale for applying a standard of reasonableness set out in Service NL applies equally to the question of statutory

interpretation engaged in this appeal. That is, as stated in Service NL : [21] In reaching that conclusion, an important consideration is the limited authority of the court under section 46(2) of the Act . In particular, the court on appeal is restricted to considering questions of law or jurisdiction and the only remedy available if an error is found is to remit the issue to the Board (section 46(4) of the Act ). There is no authority to substitute the court’s decision for that of the Board.

This indicates a legislative intention that the Board shall make the final decision when exercising its mandate to review the decision of an authority regarding local development issues, including issuing development approvals, issuing or revoking development permits, and issuing stop work orders ( section 42(1) of the Urban and Rural Planning Act, 2000 ). [22] In

summary, the Board’s decision engages a standard of review of reasonableness given the purpose for which the Board has been established, the nature of the questions it is required to decide, and the expertise developed by the Board in making such decisions by applying the relevant legislation and regulations. [ 25 ] It follows in this case that the judge in the Court appealed from did not err in concluding that a standard of review of reasonableness applies to the question of whether the

interpretation of the Regulations by the Board was reasonable in determining that the division of the land into two lots was a comprehensive subdivision warranting the imposition of open-space and park-outfitting fees. The Issue of Reasonableness of the Board’s Decision [ 26 ] In determining that the division of the land into two lots amounted to a comprehensive subdivision, the Board relied on

section 74(

c) of the Regulations : The Board learned that Ms. French’s application does not require new street construction, street upgrading, or street extension; therefore,

section 74(

a) of the Town’s Development Regulations does not apply. Moreover, the Board accepts that subsection (

b) does not apply as Ms. French’s application does not require an extension or upgrading of the municipal water and sewer system. The Board finds that

section 74(

c) is applicable as Ms. French’s application proposes to create two lots on Round Pond Road, which is an existing public street, for the purpose of residential development. Due to the fact Ms. French’s application to subdivide land includes one of the factors listed in

section 74 of the Town’s Development Regulations, the Board concludes that Ms. French’s application is a comprehensive subdivision. [ 27 ] As set out above, a subdivision is considered to be a comprehensive subdivision if it includes “infilling of two or more lots on an existing public street” (section 74(

c) of the Regulations ). In finding that

section 74(

c) applies, the Board refers to the creation of two lots from one on an existing public street for the purpose of residential development. The Board does not provide more detail by addressing the meaning of “infilling”. [ 28 ] The judge in the Court appealed from concluded: [43] The [Town] asserts that in the absence of a relevant statutory provision or municipal policy on which the Board could rely in its

interpretation of

section 74(

c) of the Development Regulations, it was open to the Board to look at other sources to assist. There is no evidence that the Board did so. The Board merely referred to

section 74(

c) as applicable to the creation of two lots without addressing the term “infilling” at all. [ 29 ] This led the judge to consider supplementing the Board’s reasons. That is, in such circumstances, the court may consider not only the reasons that are offered, but also the reasons “which could be offered in support of a decision” ( Dunsmuir v. New Brunswick , supra , at paragraph 48 ; Newfoundland and Labrador Nurses’ Union , supra , at paragraph 12).

As discussed in the Nurses’ Union decision, the essential questions is: [16] … In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

See Service NL v. Penney , supra , at paragraphs 23 to 42 . [ 30 ] In my view, while the Board’s reasons for applying

section 74(

c) of the Regulations are skeletal, the factual basis was laid for determining, as it did, that the division of the land into two lots was for the purpose of residential development. The inference may be drawn that it was expected that the two lots were being created for the purpose of each holding a residence. [ 31 ] While the Board does not define the term “infilling”, one of the sources considered by the Board, as indicated at the outset of its decision, is the Town of Paradise Municipal Plan and Development Regulations, 2004 .

Section 12 of the Municipal Plan addresses development on serviced streets: As municipal water and sewer services are extended into existing developed areas, infill opportunities are created through the subdivision of individual lots and vacant street frontage, which had been restricted from development until services became available. By increasing housing density in serviced areas, infill development contributes to more efficient use of land and municipal services. The policy of this Plan is to encourage appropriately designed infill development in serviced areas where infill opportunities are feasible.

Such development will be permitted to the extent that it is compatible with the existing neighbourhood character. Site plans and building designs must meet the approval of Council. Council may seek public input from abutting owners when reviewing applications. [ 32 ] While that

section applies to serviced areas and is, therefore, not directly applicable here, in the absence of a definition of “infill” in the Regulations , it was reasonable for the Board to look to the provision in the Town’s Municipal Plan for assistance. I note in passing that it would have been preferable for the Board to have quoted

section 12 of the Municipal Plan and to provide some discussion to make its reasons more clear. [ 33 ] In supplementing the Board’s decision to provide more comprehensive reasons, the judge in the Court appealed from referred to the definition of “infilling” in The New Shorter Oxford English Dictionary ; that is, “filling of a cavity space, etc.; (Town Planning) the filling of vacant gaps between houses” (decision of the judge, at paragraph 39). In addition, she referred to the Town’s Fee Schedule: [57] To assist me in what was intended for the development fees, I look to the Town’s Fee

Schedule which confirms the Town’s Policy on subdivisions; it requires land for public use or funds in lieu. The

section does not restrict the fee to situations where new street construction or upgraded municipal services are required (the

section 74(

a) and (

b) scenarios) and I note that

section 74(

c) is not restricted to “serviced” streets. This is the larger context for the development fees. [ 34 ] In the result, the judge was satisfied that the Board’s conclusion was reasonable because it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. While there may have been alternative

interpretations of

section 74(

c) in these circumstances, it is clear that the Board was alive to the question at issue. A determination that the division of the owners’ land into two lots constituted a comprehensive subdivision warranting the imposition of open-space and park-outfitting fees was within the range of reasonable outcomes. There is no basis on which to conclude that the judge erred in dismissing this ground of appeal. Costs [ 35 ] In the Court appealed from, the judge ordered that the parties would bear their own costs in light of their mixed success. I would not disturb that order. In this Court, the Town, being successful on the appeal, should have its costs of the appeal.

SUMMARY AND DISPOSITION [ 36 ] In

summary, the judge in the Court appealed from did not err in concluding that the

interpretation of the Regulations by the Board was reasonable in determining that the division of the land into two lots was a comprehensive subdivision warranting the imposition of open-space and park-outfitting fees, and that reasonableness is the appropriate standard of review regarding that issue. [ 37 ] Accordingly, I would dismiss the appeal, with the Town entitled to costs of the appeal under column 3 of the scale of costs in the Court of Appeal Rules . Appeal dismissed.