Samborski Garden Supplies Ltd. v. MacDonald Date:, 2015 MBCA 53

Citation: Samborski Garden Supplies Ltd. v. MacDonald Date: 20150527 (Rural Municipality), 2015 MBCA 53 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 : ) E. G. Zazelenchuk ) for the Appellant ) SAMBORSKI GARDEN SUPPLIES LTD. ) M. T.

O’Neill ) for the Respondent (Applicant) Appellant ) ) Appeal heard: - and - ) January 28, 2015 ) THE RURAL MUNICIPALITY OF ) Judgment delivered: MACDONALD ) March 10, 2015 ) (Respondent) Respondent ) Motion under Court of ) Appeal Rule 46.2 ) ) Decision pronounced : ) May 27, 2015 PER CURIAM [ 1 ] The applicant moves for an order pursuant to Rule 46.2 of the Court of Appeal Rules, Man. Reg. 555/88R , for the rehearing of its appeal that was dismissed on March 10, 2015.

No certificate of decision has yet been entered. [ 2 ] The applicant filed a memorandum of argument in support of its motion, the respondent filed a memorandum of argument in response to the motion, and then the applicant filed a reply memorandum. [ 3 ] For the following reasons, we are satisfied that oral argument on the motion for a rehearing is not required and that the applicant has not met its heavy burden of establishing special or unusual circumstances that would justify the court rehearing the appeal.

Background Facts [ 4 ] The relevant facts on the motion for a rehearing of the appeal are as follows. [ 5 ] The applicant applied for a declaration that a conditional use order granted in 1990 by the council for the respondent under The Planning Act , R.S.M. 1987, c. P80 (the Act ) (since repealed and replaced by C.C.S.M., c. P80 ), which allowed for land zoned for agricultural use to be used for a landscaping business, was still valid in 2009 when the applicant wished to purchase the land to use for its business. [ 6 ] In answer to the application, the respondent filed an affidavit from W. Thomas Raine (Mr.

Raine), the Chief Administrative Officer of the respondent, where he deposed that the use of the land in 1990, when the conditional use order was granted, was that of a “farmer’s field” and that the land had only been used as a farmer’s field since that time to the present. Mr. Raine further explained in his affidavit that although a development agreement to permit a landscaping business to operate on the land was negotiated and registered on title in 1990, the land was never used as a landscaping operation which was the purpose for which the conditional use order was granted.

[ 7 ] Mr. Raine’s evidence was the only evidence before the application judge as to the use of the land between 1990 and 2009 after the development agreement was signed and registered on title. In his reasons, the application judge, relying on Mr.

Raine’s evidence, stated (at para. 17): The developer never took any steps to comply with the affirmative covenants set out in the development agreement and the Land continues to be used strictly for agricultural purposes to the present day, notwithstanding that title to the Land changed hands several times in the years prior to the start of this litigation. [ 8 ] The application judge concluded that “the conditional use order ceased to exist by virtue of the fact that the developer failed to take any steps down the road of compliance” (at para. 30).

As explained in the reasons dismissing the appeal (at para. 17), the application judge held that the conditional use order had expired under s. 59(10) of the Act because it was not acted upon within 12 months of being granted. [ 9 ] Before the appeal was heard, the court raised on its own motion a new issue of concern to it.

On January 16, 2015, the Registrar notified the parties by letter that the court wished the parties to address the effect, if any, of another provision of the Act , namely whether the conditional use order lapsed because it was discontinued ( s. 54(1) of the Act ). [ 10 ] The applicant filed a supplementary factum on the issue raised by the court and proceeded with the appeal as scheduled without requesting an adjournment or making a motion to file further evidence. [ 11 ] The appeal was dismissed on the basis that it was unnecessary to decide whether the negotiation of the development agreement was sufficient for the conditional use order to be “acted upon” within 12 months as required by s. 59(10) of the Act because, according to Mr.

Raine’s evidence, the land simply was never used for anything other than farming for almost two decades which meant that, even if the conditional use order did not expire 12 months after being granted, it would have lapsed well before the applicant was interested in buying the land.

In his reasons for dismissing the appeal, Mainella J.A. stated (at paras. 23-24) While the conditional use order may not have expired one year after it was granted because of the negotiation of the development agreement, in my view, there is no doubt that the conditional use order lapsed thereafter pursuant to s. 54(1) of the Act as it then read. The interruption of the non-conforming use of the land was not reasonable. Eighteen years passed without any activity associated to the non-conforming use. The land was never used in that period for the non-conforming use, rather it was used only for farming. ....

Position of the Parties on the Motion for a Rehearing [ 12 ] The applicant argues that the only issue before the application judge was whether the negotiation of a development agreement for the land and its registration on title within one year of the conditional use order being granted, was “act[ing] upon” a conditional use order such that it did not expire ( s. 59(10) of the Act ). [ 13 ] The applicant says whether the conditional use order lapsed because it was discontinued pursuant to s. 54(1) of the Act “was not in anyone’s mind prior to being raised” by this court.

It argues that deciding the appeal on the new issue was unfair because there was insufficient evidence for this court to decide whether the conditional use order had been discontinued. It further submits that a miscarriage of justice will occur unless the appeal is reheard because further evidence of the use of the land between 1990 and 2009 and the intention of the owners during that period has been discovered post-appeal. Two of the grounds listed in the notice of motion for a rehearing discuss this further evidence as follows:

e) Subsequent inquiries by officers of the Applicant have uncovered both documentary evidence and evidence which can be placed before this court in affidavit form as to the use of the land during the time in question; such evidence is in contradiction to the statement in paragraph 24 of the Reasons for Judgment that “the land was never used in that period for the non-conforming use…”

f) Subsequent [i]nquiries by officers of the Applicant have uncovered evidence relevant to the intent of the owners of the land at the time in question. [ 14 ] Counsel for the applicant advises in the applicant’s memorandum of argument that he has seen the “substantial amount of evidence” uncovered after the appeal was dismissed and that it “bears directly on the question of whether or not the conditional use was discontinued.” The applicant argues that because it has not had an opportunity to present this further evidence, it has been severely prejudiced by the court dismissing its appeal on the issue the court raised.

If a rehearing is granted, the applicant says it will make a motion to introduce further evidence pursuant to Rule 21 of the Court of Appeal Rules . [ 15 ] The respondent says that the applicant has not suffered any procedural unfairness to warrant a rehearing of the appeal. It

says that the new issue of the conditional use order lapsing under a different

section of the Act was brought to the attention of the parties before the appeal was heard. If the applicant truly was prejudiced by this new issue, the respondent argues that it should have asked to have the appeal adjourned or moved for the court to accept further evidence to refute Mr. Raine’s evidence as to the use of the farmland between 1990 to 2009. Discussion [ 16 ] The rehearing of an appeal is an extraordinary remedy that is rarely granted. As Freedman J.A. explained in Willman v.

Ducks Unlimited (Canada) , 2005 MBCA 13 , 192 Man.R. (2d) 39, an order allowing the rehearing of an appeal under Court of Appeal Rule 46.2(1) is to be “granted only in exceptional circumstances, where the interests of justice manifestly compel such a course of action” (at para. 9). (See also R é millard v. R é millard , 2015 MBCA 42 at paras. 7-9 ; Director of Child and Family Services (Man.) v. A.C. et al. , 2007 MBCA 59 at paras. 6-7 , 214 Man.R. (2d) 177; and Davis v.

Labour Board (Man.) et al. , 2007 MBCA 121 at paras. 12- 13 .) As explained in Willman , the heavy burden for a rehearing may be satisfied in circumstances including, but not limited to where (at para. 10): …. 1) there is a patent error on a material point on the face of the reasons; 2) the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonably been foreseen and dealt with at the hearing; or 3) the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequential serious risk of miscarriage of justice. (See also A.C. at para. 7 .) [ 17 ] The overall theme of the applicant’s request for a rehearing is that there has been a material error in the appellate decision-making process.

While the applicant’s submissions do not fit neatly into the categories discussed in Willman and A.C. , those categories are not intended to limit the court’s discretion to grant a rehearing in the interests of justice. [ 18 ] The applicant’s submission that the appeal was decided on a point of law that “was not in anyone’s mind prior to being raised” is bound to fail. [ 19 ] An appellate court may raise an issue which the court believes is important to the case, but to which the parties have previously not directed their minds ( Willman at para. 14 ).

Such an occurrence is necessary in the rare case to prevent the risk of an injustice ( R. v. Mian , 2014 SCC 54 at para. 41 , [2014] 2 S.C.R. 689).

As explained by Mainella J.A. in his reasons dismissing the appeal, in order to maintain respect for the rule of law, it was important for the court to consider all of the relevant sections of the Act , not just the one cited by counsel and the lower court (at para. 29): While I sympathize with the appellant that the question of discontinuance of the non-conforming use was not argued at first instance, the provisions of the Act cannot be simply ignored for that reason ( MacLeod v. Yong , 1999 BCCA 249 at para. 37 , 121 B.C.A.C. 296 ).

To do so would risk an injustice. …. [ 20 ] In this matter, the appeal was not decided on a point of law that counsel did not have an adequate opportunity to address at the hearing ( Compton Agro Inc. (Bankrupt) Re , 2000 MBCA 29 at para. 3 , 145 Man.R. (2d) 227 ). Counsel received notice of the concern of the court prior to the hearing and had opportunity to address it by written and oral submissions. No objection was raised as to this process. [ 21 ] In order to put the applicant’s concern about the sufficiency of Mr.

Raine’s evidence in context, it is important to recall how the applicant, not the court, framed the request for a declaration as to validity of the 1990 conditional use order. As the application judge explained in his reasons, the applicant’s position was that on the evidence before the court the 1990 conditional use order was, because of the wording used in the development agreement, in effect, an easement that ran with the land that “exists in perpetuity and enures to the benefit of all future owners of the Land” (at para. 21).

In order for this analogy to be compelling it had to be consistent with the Act as a whole, and not just the provisions of the Act relied upon by counsel. [ 22 ] Also relevant is the fact that the application judge’s finding of fact that, “The developer never took any steps to comply with the affirmative covenants set out in the development agreement and the Land continues to be used strictly for agricultural purposes to the present day” (at para. 17) was an undisputed fact for the purposes of the appeal. The appeal focussed on the legal effect of the Act on these undisputed facts.

[23] The standard to establish a miscarriage of justice is significant. As Hamilton J.A. explained in Rémillard (at paras. 20-22): .… A miscarriage of justice is hard to define. In the often cited Robins v. National Trust Co., Ltd., (UK JCPC), [1927]All E.R.

Rep. 73, Viscount Dunedin explained it as follows (at p. 73): …. … [S]uch a departure from the rules which permeate all judicial procedure as to make that which happened not, in the proper use ofthe word, judicial procedure at all. … [S]o based on an erroneous proposition of law … that, if that proposition be corrected, the findingdisappears, then it is no finding at all. As explained by Huddart J.A. in Lin v. Tang et al. (1997), (BC CA), 93 B.C.A.C. 57, citing Robins (at para. 64): … [M]iscarriage of justice means that which is not justice according to law.

A miscarriage of justice will almost always be procedural. The blemish must be such as to make the judicial procedure at issue not a judicial procedure at all: Robins v. National Trust Co., (UK JCPC), [1927] 2 D.L.R. 97 (P.C.), affing (1925), 57 O.L.R. 46 (C.A.). …. In my view, miscarriage of justice connotes a result that is perverse and fundamentally wrong. …. [24] We have not been persuaded that the appellate proceedings have unfolded in such a way that a procedural error hasoccurred, let alone that there is consequential risk of a miscarriage of justice unless a rehearing of the appeal is granted.

A party shouldfully develop and put forward its best and strongest case at the hearing of the appeal, not after the appeal is decided. The dismissal ofthe appeal was not the time for the applicant to begin to look for further evidence to support its case. The parties received notice of thecourt’s concern about the conditional use order having been discontinued under the Act in light of the record before the application judgeand each counsel addressed that concern as they saw fit.

A motion for a rehearing is not an opportunity, with the benefit of hindsight, torevisit the conduct of an appeal by experienced counsel (see Compton Argo Inc. at para. 3). To allow a rehearing in such circumstanceswould too quickly sacrifice the important principle of finality in litigation which is central to the proper administration of justice. Conclusion [25] The motion for a rehearing of the appeal is dismissed with costs. J.A. J.A. J.A.