Samborski Garden Supplies Ltd. v. MacDonald Date:, 2015 MBCA 26

Citation: Samborski Garden Supplies Ltd. v. MacDonald Date: 20150310 (Rural Municipality), 2015 MBCA 26 Docket: AI14-30-08232 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : SAMBORSKI GARDEN SUPPLIES LTD. ) E. G. Zazelenchuk ) for the Appellant (Applicant) Appellant ) ) M. T. O’Neill - and - ) for the Respondent ) ) Appeal heard: THE RURAL MUNICIPALITY OF ) January 28, 2015 MACDONALD ) ) Judgment delivered: (Respondent) Respondent ) March 10, 2015 MAINELLA J.A.

Introduction and Issue [ 1 ] The principal issue on this appeal is whether an approved non-conforming use of land lapsed under The Planning Act , R.S.M. 1987, c. P80 (the Act ) (since repealed and replaced by C.C.S.M., c. P80 ) before it could be assigned to the appellant. Background [ 2 ] On March 27, 1990, the owners of approximately 80 acres of farmland south-west of Winnipeg (George DeVos and Joseph DeVos) were granted a conditional use order under the Act allowing for the establishment of a landscaping operation on the farmland.

Subsequently, a development agreement was negotiated between a developer (Campbell’s Garden Supplies Ltd.) and the respondent; it allowed for commercial composting as part of the landscaping operation. On October 3, 1990, a caveat evidencing the existence of the development agreement was registered by the respondent. That same day, a corporation, Maytime Properties Inc., took title to the farmland. [ 3 ] The idea of a landscape operation then gathered dust. Save for the land being used for farming, nothing happened for the next 18 years.

No steps were taken by anyone to comply with the affirmative covenants in the development agreement such as fencing the boundaries of the farmland. [ 4 ] In March 2009, the farmland was sold by Maytime Properties Inc. to Vince Zettler. Subsequently, he agreed to sell it to the appellant, a commercial composter, provided that the non-conforming use right could be assigned to the appellant. [ 5 ] On December 14, 2009, Mr.

Zettler’s solicitor advised the respondent of the pending sale of the farmland to the appellant and requested the respondent’s approval, as required by the development agreement, to assign the non-conforming use right. [ 6 ] This news surprised the respondent’s administration. The development project was long forgotten.

No records of the 1990 conditional use order, development agreement and subsequent caveat had been kept. [ 7 ] Once the council for the respondent was made aware of the events of 1990, and the current request for an assignment, it reacted by passing a resolution on December 22, 2009, authorizing its staff to discharge the caveat because the landscaping business did not proceed and the conditional use order had expired. [ 8 ] After failing on four separate occasions to get the approval of the council for the respondent for a conditional use order to operate its business on the land it had an option to acquire from Mr.

Zettler, the appellant applied to court for a declaration of validity as to the 1990 conditional use order and a declaration of invalidity of the 2009 resolution of the council for the respondent authorizing discharge of the caveat.

[ 9 ] The application was unsuccessful. [ 10 ] The judge interpreted the 1990 conditional use order as requiring “two separate and distinct steps, the first being the execution of the development agreement and the second being that the developer start developing the Land for use as a landscaping business” (at para. 24).

He concluded that despite the execution of the development agreement, because absolutely no steps were taken to comply with the affirmative covenants of the development agreement, the conditional use order expired and ceased to have any effect because it was “not acted upon” within 12 months of the decision to grant it ( s. 59(10) of the Act , now C.C.S.M., c. P80, s. 110(1) as amended). [ 11 ] The judge also concluded that the appellant had not established that the council for the respondent had acted in bad faith in authorizing the discharge of the caveat.

He accepted that the events of 1990 were forgotten by 2009 and, because the conditional use order had long expired, there was nothing inappropriate in the council authorizing the discharge of the caveat. [ 12 ] Before the hearing of this appeal, the Registrar, on behalf of the Court of Appeal, wrote to counsel asking them to address at the hearing an issue not argued in the court below; namely, the effect, if any, of s. 54(1) of the Act as it then read (now C.C.S.M., c.

P80, s. 91(1) as amended): Discontinuance of non-conforming use. 54(1) Where the non-conforming use of land, building or structure has been discontinued, for more than 12 consecutive months, it shall not thereafter be used except in conformity with the zoning by-law or amendment thereof. [ 13 ] The appellant filed a supplementary factum on the new issue. The respondent did not. The appeal proceeded as previously scheduled. [ 14 ] During the hearing of the appeal, the appellant conceded that if the conditional use order was invalid, the 2009 resolution cannot be said to have been passed in bad faith.

Given I am satisfied that the conditional use order is invalid, it is not necessary to comment on the judge’s conclusion on the question of bad faith. Discussion Standard of Review [ 15 ] The judge’s determination of the validity of the conditional use order was not a judicial review of an administrative decision, therefore, the standard of review of his decision is governed in accordance with the principles set out in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 (see Bourgouin v.

Rosser (Rural Municipality) et al. , 2014 MBCA 103 at paras. 11-14 , 310 Man.R. (2d) 284). [ 16 ] The judge’s application of the Act to the facts to determine whether the conditional use order was “acted upon,” and thus did not expire, raises a question of mixed fact and law. Absent an extricable error of law, the standard of review of such a decision is palpable and overriding error ( Housen at paras. 36-37 ). Analysis [ 17 ] In his reasons, the judge referred to s. 53(13) of the Act in deciding whether the conditional use order was “acted upon” within one year of being granted.

Nothing turns on the fact that the provision the judge referenced was not in force until well after the conditional use order would have expired according to his reasoning ( The Planning Amendment and Consequential Amendments Act , S.M. 1998, c. 39, s. 33).

The correct version of the Act ; namely, s. 59(10) , was similar in wording: Expiry of approval. 59(10) The approval of council under subsection (4) shall expire and cease to have any effect if it is not acted upon within 12 months of the date of the decision, unless it is renewed prior to the expiry date at the discretion of council for an additional period not exceeding 12 months. [ 18 ] The appellant argues that the judge’s two-step analysis of whether the conditional use order was “acted upon” and expired for inaction was a legal error.

It says the judge came up with this two-step test by erroneously adding together the conditions attached to the resolution approving the conditional use order and the conditional order itself. It says that the only requirement set out in the conditional use order was that it had to be “acted upon” within one year. The appellant submits that the requirement was satisfied by the negotiation and signing of the development agreement in the months after the granting of the conditional use order prior to the caveat being registered.

It submits that the language and extensive scope of the 14-page development agreement confirms that considerable effort and expense was taken to act upon the conditional use order, prior to the registering of the caveat. The appellant argues that the conditional use order did not expire one year after it was granted, pursuant to what was then s. 59(10) of the Act . [ 19 ] It is well accepted that a conditional use order does not expire for failure to be “acted upon” merely because the development of land is not complete within a year of the issuance of the conditional use order ( St.

Clements Ratepayers Association Inc. v. St. Clements (Rural Municipality) , 2001 MBQB 232 at paras. 25-27 , 158 Man.R. (2d) 250 ). The myriad of regulations that face

modern developments can take years to satisfy before sod is turned on a project. [20] While I see merit in the appellant’s argument, in my view, there is a more fundamental problem that is dispositive of thisappeal and makes it unnecessary to decide whether the judge committed reversible error in deciding the conditional use order expiredbecause it was not “acted upon” within one year of being granted. [21] Modern land use regulations seek to balance the interests of owners and municipalities (Saint-Romuald (City) v. Olivier,2001 SCC 57 at para. 13, [2001] 2 S.C.R. 898).

Accordingly, an acquired right regarding land use cannot be interfered with by amunicipality except as allowed for by statute (Saint-Romuald at para. 15). In Manitoba, discontinuing a non-conforming use of land formore than 12 consecutive months causes the acquired right to lapse (at the time s. 54(1) of the Act, now C.C.S.M., c. P80, s. 91(1)). [22] The test for discontinuance of a non-conforming use under the Act is two-part.

There must be disuse of the non-conforming use for more than 12 consecutive months and a lack of a bona fide intention to use the land for the non-conforming use as faras practicable in the circumstances (Stavely (Town) v.

Fern Brothers, Stacey and Credit Foncier Trust Co. (1987), 1987 ABCA 233, 84 A.R. 266 at para. 5 (C.A.)). [23] While the conditional use order may not have expired one year after it was granted because of the negotiation of thedevelopment agreement, in my view, there is no doubt that the conditional use order lapsed thereafter pursuant to s. 54(1) of the Act as itthen read. [24] The interruption of the non-conforming use of the land was not reasonable. Eighteen years passed without any activityassociated to the non-conforming use.

The land was never used in that period for the non-conforming use, rather it was used only forfarming. There are no external factors outside the owner’s control that temporarily prevented pursuit of the non-conforming use thatwould justify non-interference with the vested right (see Stavely (Town); Cowichan Valley (Regional District) v. Ward et al. (1994), (BC CA), 39 B.C.A.C. 154; Wong v. Maple Creek (Town), 2013 SKQB 240, 424 Sask.R. 94; and Feather v.

Bradford-WestGwillimbury (Town) et al., 2010 ONCA 440, 268 O.A.C. 239). [25] The only conclusion available here is that Maytime Properties Inc. discontinued the non-conforming use of the landsometime in the early 1990s (see Stavely (Town) at para. 6). Accordingly, Mr.

Zettler never acquired the right to use the land for thenon-conforming use when he purchased the land in 2009 and he cannot now assign that right to the appellant. [26] One final comment is necessary as the court raised the question of discontinuance of the non-conforming use on its ownmotion. [27] As a general rule, an issue not pleaded or raised in the trial court should not be considered on appeal (Quan v. Cusson,2009 SCC 62 at para. 36, [2009] 3 S.C.R. 712; and St. Clements (Rural Municipality) v. Zucawich, 2013 MBCA 65 at paras. 94-98, 294Man.R. (2d) 146).

Departure from that rule may occur exceptionally, but only where there is a risk of an injustice and the issue can bedecided without further evidence or procedural prejudice to any party (Quan at para. 37; R. v. C.J. (1997), (MB CA),115 Man.R. (2d) 72 (C.A.); R. v. Mian, 2014 SCC 54 at paras. 41, 51-52; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis ClubLtd., 2002 SCC 19 at paras. 32-33, [2002] 1 S.C.R. 678; Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 at paras. 51-52;and Bell ExpressVu Limited Partnership v.

Rex, 2002 SCC 42 at para. 58, [2002] 2 S.C.R. 559). [28] I am satisfied that no additional evidence is required to consider the legal issue of the discontinuance of the non-conforming use and it is appropriate to do so in the circumstances, as the new issue does not recast the proceedings below or create anyprocedural prejudice to the parties. Rather, the issue addresses the legal consequences of the undisputed facts and findings of the judgeas to what happened between the registration of the caveat in 1990 and the sale of the land to Mr.

Zettler in 2009. [29] While I sympathize with the appellant that the question of discontinuance of the non-conforming use was not argued atfirst instance, the provisions of the Act cannot be simply ignored for that reason (MacLeod v. Yong, 1999 BCCA 249 at para. 37, 121B.C.A.C. 296). To do so would risk an injustice. In my view, respecting the rule of law and the undesirability of knowingly perpetratinga legal error due to an oversight in the court below, outweigh any perceived unfairness (see Donald J.M. Brown, Q.C., Civil Appeals,loose-leaf, (Toronto: Thomson Reuters Canada Limited, 2013) at 10:4323).

Conclusion [30] In the result, I would dismiss the appeal with costs. J.A. I agree: J.A. I agree: J.A.