The Armstrong’s Point Association Inc. v. Date:, 2013 MBCA 110

Citation: The Armstrong’s Point Association Inc. v. Date: 20131220 The City of Winnipeg et al., 2013 MBCA 110 Docket: AI 13-30-07974 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Mr. Justice Christopher J. Mainella BETWEEN : THE ARMSTRONG’S POINT ) ASSOCIATION INC. ) D. G. Hill ) for the Appellant (Applicant) Appellant ) ) D. A. M. Pambrun - and - ) for the Respondent ) The City of Winnipeg THE CITY OF WINNIPEG, THE BOARD ) OF ADJUSTMENT OF THE CITY ) K. J.

Ferbers OF WINNIPEG and THE APPEAL ) for the Respondent COMMITTEE OF THE CITY OF ) The Mennonite WINNIPEG, THE MENNONITE ) Educational Society EDUCATIONAL SOCIETY OF ) MANITOBA O/A WESTGATE ) Appeal heard and MENNONITE COLLEGIATE ) Decision pronounced: ) December 20, 2013 (Respondents) Respondents ) CHARTIER C.J.M. (for the court): [ 1 ] The Westgate Mennonite Collegiate (the Collegiate) wishes to develop its school by adding approximately 4,700 square feet for a storage room, atrium, fitness room and additional choral and music space.

In order to obtain the required development permit from the City of Winnipeg (the City), the Collegiate applied for and was granted a conditional use order and a variance order (the Orders). A number of members of The Armstrong’s Point Association Inc. (the Association) appealed that decision to the Appeal Committee, which is comprised of the three City Councillors. That committee also approved the Orders. The Association then appealed that decision to the Court of Queen’s Bench.

The reviewing judge dismissed the appeal. [ 2 ] The Association now appeals the decision of the reviewing judge dismissing its request to quash the Orders granted to the Collegiate. [ 3 ] On appellate review from a decision of a judge hearing an application for judicial review or on a statutory appeal from a decision of an administrative tribunal, appellate courts are to simply determine whether the reviewing judge chose and applied the correct standard of review. Those two questions are questions of law and are to be reviewed by the appeal court on the standard of correctness (see Dr. Q v.

College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at paras. 43-44 , [2003] 1 S.C.R. 226 . [ 4 ] In this case, the reviewing judge chose the standard of reasonableness. All parties agree that she selected the correct one and we are of the same view. The second part of our review is whether the reviewing judge correctly applied the standard of reasonableness in her analysis. To be clear, the matter is not whether she erred in applying the law to the facts.

That question is a question of mixed fact and law and is outside our purview unless the reviewing judge commits palpable and overriding error on the facts. The question is whether the reviewing judge correctly applied the law. [ 5 ] It is also useful to remember that, an appeal under s. 495(1) of The City of Winnipeg Charter , S.M., 2002, c. 39 (the Charter ), to the Court of Queen’s Bench, is limited only to questions of law, not questions of mixed fact and law.

[ 6 ] In her reasons, the reviewing judge correctly reviewed the applicable criteria for the approval of variances and conditional uses prescribed by ss. 247(3) and 254 of the Charter . She also considered the correct provisions pertaining to queuing and parking stalls found in the City of Winnipeg By-Law No. 200/2006 (the Zoning By-law). The reviewing judge then reviewed at length the issues raised by the Association. Critical to her decision were her findings first, that the Appeal Committee’s “interpretation and application of the Charter was certainly reasonable, as were the decisions [it] reached.” The reviewing judge showed deference to the tribunal’s

interpretation of its own statute and we have not been convinced that she erred in this regard. Second, the reviewing judge found that the

interpretation given to s. 36 of the Zoning By-Law by the Appeal Committee, that its injurious effect “was intended to address the use of the property” and not be limited only to the physical impact or injury to the owner’s property, was a reasonable one. Again, the Association has not demonstrated any error in principle by the reviewing judge. To use the words of the Supreme Court of Canada in McLean v. British Columbia (Securities Commission) , 2013 SCC 67 (at para. 33 ): … [T]he resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice between multiple reasonable

interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker — not the courts — to make. …. [ 7 ] Simply put, in the context of administrative law, there is no legal error if it is reasonable. [ 8 ] We also agree with the reviewing judge that the reasons provided by the Appeal Committee were adequate in the circumstances. [ 9 ] In the end, we are all of the view that the reviewing judge chose the correct standard by which to conduct her review and correctly applied it in her analysis.

Despite the able argument of counsel, the Association has not been able to convince us that appellate intervention is warranted. Like the reviewing judge, we have assumed, without deciding, that the Association has the necessary standing to make this appeal. [ 10 ] The appeal is dismissed with costs. C.J.M. J.A. J.A.