Turanich v Fort Saskatchewan (Subdivision and Development Appeal Board), 2023 ABCA 204

In the Court of Appeal of Alberta Citation: Turanich v Fort Saskatchewan (Subdivision and Development Appeal Board), 2023 ABCA 204 Date: 20230629 Docket: 2303-0069AC Registry: Edmonton Between: Patricia Turanich Applicant - and - City of Fort Saskatchewan and City of Fort Saskatchewan Subdivision and Development Appeal Board Respondents _______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________ Application for Permission to Appeal _______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________

[1] The applicant has applied for permission to appeal a decision of the Fort Saskatchewan Subdivision and DevelopmentAppeal Board. [2] The applicant applied for and was granted a development permit to construct a 2.44 m fence around her country residentialproperty. This involved a variance, because the standard maximum height for rear and side yard fences is 1.85 m. [3] A neighbour appealed the permit to the Board. The Board allowed the appeal, and amended the development permit topermit only a 1.85 m fence.

The Board did allow the applicant to have a 1.85 m. fence along the front of her property, although thestandard maximum height would have been .91 m. [4] The test for permission to appeal under s. 688(3) of the Municipal Government Act, RSA 2000, c. M-26 is whether theproposed appeal involves a question of law of sufficient importance to merit a further appeal and has a reasonable chance of success: L’ilRock Enterprise Ltd v Black Diamond (Town), 2022 ABCA 371 at paras. 4-7. [5] The applicant proposes two grounds of appeal: (

a) Did the Board err in law by failing to provide sufficient reasons for its decision in accordance with s. 687(2) of the Act? (

b) Did the Board err in law in the proper exercise of its variance power under s. 687(3)(

d) of the Act by adopting an incorrect standardin assessing whether the applicant’s proposed development materially interfered with or affected the use, enjoyment or value ofneighbouring parcels of land under section 687(3)(

d) of the Act? Neither proposed question is of sufficient importance, with a reasonable chance of success, to merit a further appeal. [6] The reasons of the Board are somewhat formalistic, in that they largely recite various planning documents, but they must beread in the context of the issues and the arguments presented: Fraser v Edmonton (City), 2021 ABCA 195 at paras. 35-36; Stubicar vCalgary (Subdivision and Development Appeal Board), 2022 ABCA 299 at para. 62. It is quite clear that the Board accepted theposition of those neighbours who opposed the development permit. [7] The test in s. 687(3)(

d) provides that in determining an appeal, the board hearing an appeal: (

d) may make an order or decision or issue or confirm the issue of a development permit even though the proposed development does notcomply with the land use bylaw if, in its opinion, (

i) the proposed development would not (

A) unduly interfere with the amenities of the neighbourhood, or (

B) materially interfere with or affect the use, enjoyment or value of neighbouring parcels of land. The reasons, when read as a whole, show that the Board applied the proper test. It used phrases like “materially interfere with theenjoyment of neighbouring parcels of land”, “impact the open and natural characteristics of the [Point Aux Pins Estates] that theresidents there enjoy”, that “an 8ft fence would be inconsistent with the existing developments in the PAPE” and, would not be“compatible with neighbouring uses”. These are all phrases consistent with the test in s. 687(3)(d).

The Board applied this test both inallowing the appeal, and in permitting the variance respecting the front yard fence. [8] Further, neither ground of appeal, nor the underlying substantive issue on the height of the fence, are of sufficient publicimportance to warrant a further appeal. [9] In conclusion, the applicant has failed to meet the test for permission to appeal, and the application is dismissed. [10] The Board filed a memorandum in response to this application, and counsel for the Board appeared at the hearing.

In myview, after the decision in Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, appearances by theBoard are inappropriate and unnecessary where both sides are represented and a sufficient adversarial context already exists. AfterVavilov there is no need for the Board to make submissions about the standard of review. True “issues of jurisdiction” rarely arise. Therewas no need to explain the record.

There is no valid reason for the Board to repeat or make arguments that should be made by theparties. [11] The Board notes that it is a statutory respondent under s. 688(5)), but that has never entitled a tribunal to make submissions onthe merits: Northwestern Utilities v Edmonton (City), (SCC), [1979] 1 SCR 684 at pp. 708-710. The Board is made aparty to the appeal to inform it that an appeal has been launched, and because it must file the return. This also ensures that the Board isgiven notice of, and to the extent necessary is bound by, the outcome of the application and any subsequent appeal.

However, the Board should at most maintain a watching brief unless there is real justification for greater involvement.

Application heard on June 28, 2023 Reasons filed at Edmonton, Alberta this 29th day of June, 2023 Slatter J.A. Appearances: W.L. McElhanney, K.C. A.W. Yiu for the Applicant A. Gulamhusein for the Respondent, City of Fort Saskatchewan G.J. Stewart-Palmer, K.C. For the Respondent, City of Fort Saskatchewan Subdivision and Development Appeal Board