Bourgouin v. Rosser (Rural Municipality) Date:, 2014 MBCA 103

Citation: Bourgouin v. Rosser (Rural Municipality) Date: 20141110 et al., 2014 MBCA 103 Docket: AI 13-30-08102 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella BETWEEN : ) J. D. Kendall GEORGE BOURGOUIN and ) for the Appellants DENIS BOURGOUIN ) ) (Applicants) Appellants ) O. L. Currie and ) J. S. Winter - and - ) for the Respondents ) THE RURAL MUNICIPALITY OF ) ROSSER and SOUTH INTERLAKE ) Appeal heard: PLANNING DISTRICT ) June 10, 2014 ) (Respondents) Respondents ) ) Judgment delivered: ) November 10, 2014 BEARD J.A. I.

THE ISSUE [ 1 ] The appellants, George Bourgouin (George) and Denis Bourgouin (Denis) (collectively, the Bourgouins), have appealed the application judge’s decision dismissing their application for a declaration that they can build a single family dwelling on their property in the Rural Municipality of Rosser (the R.M.) (the property) and for an order in the nature of mandamus requiring the R.M. and South Interlake Planning District (the S.I.P.D.) (collectively, the respondents), to issue a building permit to allow them to do so. [ 2 ] The grounds of appeal raised by the Bourgouins are: (

i) What is the applicable standard of review? (ii) Did the application judge err in concluding that the two-acre provision was only applicable to a retiring farmer subdividing a farmstead and, therefore, unavailable to them? (iii) If the application judge erred in finding that only a retiring farmer could utilize the two-acre provision and a right to a development permit flows to them, what remedy follows? II. THE FACTS [ 3 ] The facts as they are relevant to this appeal are not in dispute.

The Application [ 4 ] Denis was interested in purchasing some land close to his parents and building a home there for his family. The Bourgouins located a 10-acre property that was for sale and made inquiries at the offices of the R.M. and the S.I.P.D. as to whether the lot was suitable for building a single family dwelling.

After receiving some verbal assurances from employees of the R.M. and the S.I.P.D. and a letter from the manager of S.I.P.D. that they could build a single family dwelling on the land subject to them complying with all zoning and municipal requirements, George purchased it in late April or early May 2011, for Denis.

[ 5 ] When they began work to ready the property for building, they immediately encountered delays in obtaining a permit to install a culvert. They attended several council meetings of the R.M. to enquire about the delay, and, on June 28, 2011, they were told that the council was not ruling out trying to halt residential development in that area and that it was awaiting the receipt of advice from legal counsel.

The Bourgouins waited for further information as to whether a decision had been made but did not receive an official response. [ 6 ] George applied to the S.I.P.D. in late July or early August 2011 for a building permit to build the house, at which time he was told by two employees of the S.I.P.D. that there was a hold on the approval of building permits on the property and surrounding lands until further notice. Despite making many inquiries as to the status of their application, the Bourgouins were not successful in obtaining a permit.

They retained a lawyer to see if he could get the permit, but he did not have any success. [ 7 ] While they received a number of responses in the fall of 2011 and winter of 2012 indicating that the land did not comply with the zoning requirements and that a development permit could not be issued without a variance, the explanation as to why the property did not comply varied over time. The frustration for the Bourgouins was compounded because building permits had been issued in the past to owners of similar properties. Needless to say, they were very frustrated with the process.

Despite these difficulties, the application judge concluded (at para. 32): This is not a situation of bad faith or vendettas being exercised – it is simply the case where the R.M. discovered very late in the day that it never properly followed the correct legal process to issue building permits in prior years. …. [ 8 ] Finally, with the respondents refusing to issue a building permit, the Bourgouins filed an application in the Court of Queen’s Bench on October 3, 2012, for a declaration that they could build a single family dwelling on the land and for an order in the nature of mandamus requiring the respondents to issue a building permit to allow them to proceed with the construction.

The Applicable Legislation [ 9 ] The development of the property is governed by the The Rural Municipality of Rosser, by-law No. 4-85, Zoning By- law (17 March 1997); The Planning Act , C.C.S.M., c. P80; and the applicable development plan in effect pursuant to The Planning Act . Zoning By-law No. 4-85 zones the property as “A80” Agricultural, for which the permitted uses are found in

Part V and Table V-I “A80” Agricultural Use and Bulk Table (the Bulk Table), the two relevant provisions being: - dwellings, single family or mobile home – site area minimum 80 acres - one-family dwelling or mobile home when located on a lot approved in accordance with the S.I.P.D. Development Plan – site area minimum two acres. The Refusal [ 10 ] There was considerable communication regarding this property, first between the Bourgouins and various employees of the respondents and, later, between counsel for the Bourgouins and counsel for the R.M.

By letter dated December 19, 2011, Beverley Wells, the Chief Administrative Officer for the R.M., wrote to George regarding his application for a building permit: Re: Residential Development in Agricultural Zone Lot 10, Plan 15146 (Part of NE ¼ in

Section 24, Township 11, Range 1 EPM) Further information is being provided as a follow up to our letter of August 15, 2011. The Zoning By-law No. 4-85 provides that in an “A80” Agricultural Zone there is a requirement to have 80 acres to construct a dwelling for a single family or placement of a mobile home. The by-law does refer to 2 acres, but only if the parcel was created under the South Interlake Planning District (SIPD) Development Plan. This parcel was not created under the SIPD Development Plan.

Currently your parcel is located in the “A80” Agricultural Zone of the Municipality and does not meet the requirement of 80 acres for the construction of residence. As your property does not comply a variance application may be submitted to South Interlake Planning District and processed as per requirements of The Planning Act . Given the large degree of variation that will be required there is no guarantee that the application would be approved.

III. STANDARD OF REVIEW [ 11 ] The first ground of appeal relates to the applicable standard of review. Both counsel argued that the application judge’s decision should be reviewed according to the standards set out in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, and both agreed that the applicable standard for the second and third grounds of appeal was that of palpable and overriding error. [ 12 ] Correctly categorizing the nature of the proceeding under appeal is key to selecting the appropriate standard of review. As was stated by the Supreme Court of Canada in Agraira v.

Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, it is important not to confuse the appellate standards of correctness and palpable and overriding error, on the one hand, and the administrative law standards of correctness and reasonableness, on the other. (See para. 45.) [ 13 ] Beginning with its decision in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, the Supreme Court of Canada has revised the framework for reviewing administrative decisions and the applicable standards of review. As it recently stated in Canadian National Railway Co. v.

Canada (Attorney General) , 2014 SCC 40 , determining the applicable standard of review requires a court to first determine whether the Dunsmuir framework applies and, if so, what is the applicable standard in the case at hand. (See para. 50.) [ 14 ] On the issue of whether the Dunsmuir framework applies, the court in Canadian National Railway stated (at paras. 53- 54): Dunsmuir is not limited to judicial review of tribunal decisions (paras. 27-28; Public Mobile [2011 FCA 194 , 420 N.R. 50 ], at para. 30).

Rather, in Dunsmuir , the standard of review analysis was discussed in the context of “various administrative bodies”, “all exercises of public authority”, “those who exercise statutory powers”, and “administrative decision makers” (paras. 27, 28 and 49). This Court has applied the Dunsmuir framework to a variety of administrative bodies (see, for example, Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 , at paras. 13 and 35 , per McLachlin C.J.).

The precedents instruct that the Dunsmuir framework applies to administrative decision-makers generally and not just to administrative tribunals. .... [ 15 ] An application for the remedy of an order in the nature of mandamus is an application for judicial review of a decision of a public official or statutory decision maker. (See Sara Blake, Administrative Law in Canada , 5th ed. (Markham: LexisNexis Canada Inc., 2011) at 186-87.) Thus, a judge hearing an application for a prerogative writ such as mandamus (or certiorari or prohibition) is conducting a judicial review of the decision of the public official or statutory decision maker.

In this case, the authority to grant a building permit is vested in a statutory public authority, with the result that decisions to grant or refuse building permits are administrative decisions and, therefore, come within the Dunsmuir framework. [ 16 ] The standard of review on an appeal from a decision of a judge conducting a judicial review was set out by the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226 (at paras. 43- 44 ): ....

The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event she had not, to assess the administrative body’s decision in light of the correct standard of review, reasonableness. At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of an administrative decision. As such, the normal rules of appellate review of lower courts as articulated in Housen , supra , apply.

The question of the right standard to select and apply is one of law and, therefore, must be answered correctly by a reviewing judge. The Court of Appeal erred by affording deference where none was due. The Court of Appeal should have corrected the reviewing judge’s error, substituted the appropriate standard of administrative review, and assessed the Committee’s decision on this basis. Judged on the proper standard of reasonableness, there was ample evidence to support the Committee’s conclusions on credibility, burden of proof and application of the burden of proof to the factual findings.

It follows that the decisions of the reviewing judge and the Court of Appeal should be set aside and the order of the College [of Physicians and Surgeons of British Columbia] restored. (See also, for example, Armstrong’s Point Association Inc. v.

Winnipeg (City) et al. , 2013 MBCA 110 at para. 3 , 303 Man.R. (2d) 56; and Agraira at para. 45 .) [ 17 ] In this case, the application judge approached his analysis as a matter of first instance; he did not consider that he was reviewing the decision of the respondents and, consequently, he did not undertake any analysis of the standard by which he should be reviewing that decision. Further, by conducting his own analysis of the issue, he was, effectively, applying the standard of correctness,

which, for the reasons set out below, is the wrong standard. Thus, by proceeding as he did, he committed an error of law. This court’s role is to determine the appropriate standard of review and review the respondents’ decision on that standard. IV. THE RESPONDENTS’

INTERPRETATION OF THE TWO-ACRE PROVISION Standard of Review [ 18 ] The second ground of appeal raises the issue of whether it was an error to conclude, as the respondents argued before the application judge, that the two-acre provision was only applicable to a retiring farmer subdividing a farmstead and, therefore, not available to the Bourgouins. In coming to that conclusion, the respondents interpreted the R.M.’s zoning by-law and related provincial planning legislation. [ 19 ] Applying the principles from Dunsmuir as set out by this court in Manitoba v. Russell Inns Ltd. et al. , 2013 MBCA 46 , 291 Man.R. (2d) 244, what we are dealing with is the

interpretation by the respondent municipal authorities of their own enabling or home statute and statutes closely connected to their functions. This attracts the standard of review of reasonableness. (See Russell Inns at paras. 65-67; McLean v. British Columbia (Securities Commission) , 2013 SCC 67 at paras. 19-33 , [2013] 3 S.C.R. 895; and Agraira at para. 50 .

In the current case, there is nothing that would rebut the presumption of a reasonableness review and the question does not fall into an exceptional category.) Thus, the question to be resolved is whether the respondents’ conclusion that the two-acre provision was only applicable to a retiring farmer subdividing a farmstead and, therefore, unavailable to the Bourgouins was reasonable. [ 20 ] The reasonableness standard was explained by Bastarache and LeBel JJ. in Dunsmuir (at para. 47 ): ... [C]ertain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. (See also, for example, Canada (Citizenship and Immigration) v.

Khosa , 2009 SCC 12 at para. 59 , [2009] 1 S.C.R. 339.) [ 21 ] This court explained the application of the reasonableness standard in Russell Inns (at para. 81): The application of the reasonableness test requires that the reviewing court examine the tribunal’s reasoning and outcome to see whether the tribunal’s finding or conclusion comes within the set of rational outcomes that are defensible with respect to the facts and the law; that is, whether there is any line of analysis within the reasons that could adequately support the decision.

If there is, then the decision is reasonable, even if a different line of analysis would lead to a different result. It is an error to examine the reasons to determine whether there are sufficient errors to render the decision unreasonable. …. The Issues [ 22 ] While the Bourgouins have raised several issues related to the application judge’s decision, many of them are irrelevant to the question that is before this court. That question is whether the respondents’ conclusion of December 19, 2011, that the two-acre provision did not apply to the property because it was not created under the S.I.P.D.

Development Plan was reasonable. The Appellants’ Position [ 23 ] The Bourgouins’ position is that they need only comply with policy 3.7 of South Interlake Planning District, by-law No. 1/02, Development Plan (15 October 2002),

Section III, Part A (Development Plan 1/02), for their property to be “a lot approved in accordance with the [S.I.P.D.] Development Plan” within the Bulk Table and they will then be entitled to a building permit. This argument was not raised with the respondents before the commencement of the application, so the respondents did not have the opportunity to respond to it. Further, the evidence shows that the respondents did not consider this provision in coming to their 2011 decision not to issue the building permit. [ 24 ] The Bourgouins’ position regarding the

interpretation of policy 3.7 is that a development plan is a guide to set out specific policy objectives and criteria for many activities in a municipality and that it is to be construed in a flexible and liberal manner. Further, they argue that such a document is meant to be a “living document” that changes with the times. [ 25 ] Although there have been several development plans since the property was created, their position is that the applicable development plan is the one adopted by the S.I.P.D. in 2002 and appended as

Schedule A to By-law No. 1/02, because it was the development plan in effect when they filed their application for a building permit. The respondents have not disagreed with this position. The Bourgouins are relying, in particular, on

Section III, Part A, policies 3.5-3.7, which state: 3.5 The subdivision of land shall generally not be permitted in the Agricultural Rural Area. The exceptions to this general limitation shall be title holdings for public utilities and works, roads, drains, cemeteries, aggregate extraction and parcels approved under policies

3.6 or 3.9 of this section. 3.6 Subdivision of farmsteads for non-farm dwelling sites may be permitted in the Agricultural Rural Area if the farmstead is no longer required for the farm operation; providing it was existing at the time of the adoption of the original Development Plan January 4, 1984 and contains a habitable dwelling; and is deemed not to negatively impact on adjacent farm activity and generally meets the intent of policy 3.7 of this section. 3.7 The non-farm dwelling sites shall adhere to but not be limited to the following siting criteria:

a) All services can be provided with reasonable efficiency and without undue cost to the municipality.

b) The site shall not be subject to flooding or can be adequately flood proofed.

c) The site shall be adjacent to and have direct access to an all-weather road.

d) In order to minimize land use conflicts, mutual separation distances between the livestock facility / manure storage facility and single residences and designated residential / recreational areas, consistent with those recommended in the Farm Practices Guidelines for Producers in Manitoba, shall be applied to new and expanding livestock production operations. Developments shall be sufficiently separated from existing agricultural operations to ensure they will not cause conflicts. The Zoning By-law will establish separation distances consistent with those specified in the Farm Practices Guidelines for Livestock Producers in Manitoba.

e) The site area shall generally be not less than 2 acres and not greater than 10 acres. [ 26 ] Firstly, they argue that these provisions are ambiguous and that any ambiguity must be resolved in favour of the property owner. [ 27 ] Secondly, they argue that policy 3.5 states the general prohibition against subdividing land in an Agricultural Rural Area, while policy 3.6 is permissive and meant to diffuse the effect of policy 3.5 in relation to land no longer required for a farming operation (sometimes referred to as retiring farmer subdivisions). They argue that the flexible and reasonable

interpretation of policy 3.7 is that it is not intended to refer only to the retiring farmer subdivisions set out in policy 3.6 but, rather, refers to any non-farming development so long as those sites are not less than two acres or more than 10 acres and otherwise adhere to the criteria set out in the rest of policy 3.7. While they do not argue that they comply with the provisions of policy 3.6, they take the position that they do comply with the provisions of policy 3.7 and, therefore, come within the permitted use, entitling them to a building permit. [ 28 ] Finally, they argue that, given that a number of similar lots have been issued building permits in the past, their proposed

interpretation is consistent with the past

interpretation by the R.M. of its zoning by-law, which should assist in determining the true intent of these provisions. The Respondents’ Position [ 29 ] The respondents’ position is that the property has never been legally subdivided; that is, that it has never met the zoning and planning requirements for use as a single-family residential property. As a result, it does not comply with the S.I.P.D. Development Plan, which, absent a zoning variation, is necessary to come within the requirements of the two-acre lot permitted use. [ 30 ] In response to the Bourgouins’

interpretation of policy 3.7 of Development Plan 1/02, the respondents’ position is that interpreting the provisions so broadly as to allow residential development in an “A80” Agricultural Zone area would defeat the entire purpose of the agricultural policies. [ 31 ] Their position is that property owners are entitled to building permits if they can demonstrate compliance with the zoning by-law and development plan.

They argue that policy 3.7 must be read together with policy 3.6, and, as the property does not meet the farmstead subdivision provision in policy 3.6, it is not a permitted use under the zoning by-law. Thus, they argue that the Bourgouins are not entitled to a building permit, and their only recourse is to apply for a zoning variation. Analysis

[ 32 ] To understand the respondents’ position following the Bourgouins’ purchase of the property in 2011, it is necessary to look at the history of the property. That history shows that this property was created on July 31, 1968 and September 20, 1968, when 43 transfers of land were registered in the Winnipeg Land Titles Office to create 43 smaller lots from one large piece of property, one of which is the property purchased by George. It is most likely that this land was in an area zoned Agricultural, as it has been zoned Agricultural throughout.

The zoning and planning legislation then in effect, being The Rural Municipality of Rosser, by-law No. 1169, Zoning By-law (3 February 1959), stated that for land zoned Agricultural the minimum lot size for a one-family dwelling was 20 acres. The result was that all of the 10-acre lots then created (including the Bourgouin property) did not comply with the zoning legislation for use as single-family residential property.

The Winnipeg Land Titles Office was able to create these 43 parcels because there was no legislation in effect at that time preventing the transfers. [ 33 ] Except for the few lots that now have single-family dwellings, the rest of the 43 lots have always been used as farm land. The evidence is that the Bourgouin property has never been part of a registered subdivision and no variation has ever been granted. While the legislation in effect from time to time has had “grandfathering” provisions, none have applied to this property. [ 34 ] Based on this history, I would find that the respondents’

interpretation of the legislation, being that the property has never been legally subdivided for use as a single-family residential property, is both reasonable (meeting the applicable standard of review) and correct (meeting the higher standard).

As a result, their conclusion (apart from policies 3.5-3.7) that the Bourgouins were not entitled to a building permit without obtaining a zoning variation was both reasonable and correct. [ 35 ] The essential basis put forward by the Bourgouins to support their position that the lot has been approved is their argument that they comply with policy 3.7 of Development Plan 1/02. As noted earlier, this argument was advanced for the first time before the application judge.

That said, the argument is easily dismissed on the clear wording of the provisions. [ 36 ] Policy 3.5 states that there shall be no subdivisions in an Agricultural Rural Area except those approved under policies. 3.6 and 3.9 (the latter being inapplicable). Thus, policy 3.7 does not create any separate right to a subdivision because it is not included as a separate exemption. [ 37 ] Policy 3.6 does create an exemption to permit residential subdivisions, but it is limited to subdivisions that existed on January 4, 1984, and contained a habitable dwelling at that time .

This property did not contain a habitable dwelling at that time, so it does not qualify as a permitted residential subdivision under policy 3.6. [ 38 ] Policy 3.6 contains a further limitation, that being that the subdivision must, generally, meet the intent of policy 3.7. Thus, by the wording of policy 3.6, policy 3.7 is clearly part of that exemption and is not a separate exemption. The Bourgouins clearly do not come within the exemption in policy 3.6 as there was no habitable dwelling on the property before January 4, 1984.

Thus, policy 3.7 does not apply to their property and their application cannot be granted on this basis. [ 39 ] In my view, the legislation is not ambiguous, so there is no need to resort to the law in that regard. Further, the respondents have explained how the error in

interpretation of the legislation came to their attention and the fact that, since that time, they have consistently applied this new

interpretation to all building permit applications. Thus, it is of no assistance to the Bourgouins that a few of these properties succeeded in the past in obtaining building permits. [ 40 ] For these reasons, I would find that the respondents’ decision not to grant the Bourgouins a building permit because the property does not comply with the two-acre permitted use in the Bulk Table of the zoning by-law is also reasonable. [ 41 ] Given this decision, it is not necessary to deal with the third ground of appeal.

Further, the Bourgouins argue that the application judge erred in relying on the wrong development plan, being South Interlake Planning District, by-law No. 2/83, Development Plan (19 December 1983) (Development Plan 2/83), instead of the applicable one, being Development Plan 1/02. Given my finding regarding the applicable standard of review and this court’s role in reviewing the respondents’ decision on that standard, there is no need to consider this error. V. DECISION [ 42 ] For the reasons set out herein, I would dismiss the appeal with one set of costs to the respondents. J.A. I agree: J.A. I agree: J.A.