East St Paul (Rural Municipality ) v Date:, 2016 MBCA 103

Citation: East St Paul (Rural Municipality ) v Date: 20161019 Winnipeg (City), 2016 MBCA 103 Docket: AI15-30-08335 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : ) M. G. Tramley THE RURAL MUNICIPALITY OF ) for the Appellant EAST ST. PAUL ) ) D. A. Pambrun (Appellant) Appellant ) for the Respondent ) - and - ) T. D.

Gisser ) on a watching brief for the ) Municipal Board of Manitoba THE CITY OF WINNIPEG ) ) Appeal heard and (Respondent) Respondent ) Decision pronounced: ) October 19, 2016 PFUETZNER JA (for the Court): [ 1 ] This appeal involves a dispute between the Rural Municipality of East St. Paul (the RM) and the City of Winnipeg (the City) in respect of two roads, one of which crosses the boundary between the RM and the City and the other nearly so.

The dispute arose when the City determined that it would close both roads at or near the boundary between it and the RM. [ 2 ] The RM applied to the Municipal Board (the Board) under section 295(5) of The Municipal Act , CCSM c M225 (the Act ), which provides, in part, that: Reference to Municipal Board 295(5) A municipality that is not able to agree with another municipality on a matter relating to a municipal road . . . may refer the matter to The Municipal Board for determination, including (

a) whether a road . . . is needed. [ 3 ] After a hearing, the Board decided that the roads are needed, at least in the immediate term. However, the Board also concluded that it did not have the jurisdiction to order that the roads should remain open. Rather, it stated: With respect to the requests of the [RM] . . . for orders that any attempt by the City to close the roads shall have no force and effect; and/or that the roads should remain open, these matters are beyond the Board’s jurisdiction. [ 4 ] The RM received leave under section 60(2) of The Municipal Board Act , CCSM c M240, to appeal the Board’s

decision that it lacks jurisdiction to make the orders requested by the RM. The Board’s decision that the roads are needed is not under appeal. [ 5 ] The parties agreed, as do we, that the standard of review to be applied to the decision of the Board is reasonableness. [ 6 ] The Board provided no reasons for its conclusion that it did not have jurisdiction to make the orders requested by the RM. In fact, that issue was not raised at the Board hearing, nor was it argued before the Board. As a result, there is no record before this Court in respect of the decision under appeal.

This Court cannot review the reasonableness of the Board’s decision when there is absolutely no basis to determine how the decision was reached. [ 7 ] Accordingly, the appropriate disposition of this appeal is to set aside the decision of the Board only in respect of its conclusion that it lacks jurisdiction to make the orders requested by the RM, and to refer this issue back to the Board to hear argument from the parties and to provide reasons for whatever decision is ultimately reached by the Board. JA JA JA