r v Winnipeg, 2016 MBCA 71

Citation: Altemeyer v Winnipeg (City) et al, Date: 20160622 2016 MBCA 71 Docket: AI15-30-08520 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : ) J. Altemeyer ) on her own behalf JENNIFER ALTEMEYER ) ) J. S. Michaels (Applicant) Appellant ) for the Respondent West ) Broadway Development ) Corporation - and - ) ) M.

Muller ) on a watching brief for the CITY OF WINNIPEG and WEST ) City of Winnipeg BROADWAY DEVELOPMENT ) CORPORATION ) Appeal heard: ) May 10, 2016 (Respondents) Respondents ) ) Judgment delivered: ) June 22, 2016 On appeal from 2015 MBQB 187 , 325 ManR (2d) 7 PER CURIAM [ 1 ] The applicant appeals the dismissal of her motion for an interlocutory injunction against the respondent West Broadway Development Corporation (WBDC) to prevent the alteration of the appearance, content and functionality of what she refers to as the Sherbrook Street Community Garden (the Garden) located at 198 Sherbrook Street in Winnipeg (the Property).

Background [ 2 ] The Property has operated as the Garden for over 20 years. The applicant has been gardening there since approximately 1995. [ 3 ] In 2001, WBDC received a contribution of $30,500 from the Neighbourhood Renewal Fund (an initiative of the Province of Manitoba), to purchase the Property to ensure its continued use for community purposes.

One of the terms of that transaction was that WBDC “will continue the existing use of the property (community garden) until a suitable development purpose is identified.” [ 4 ] WBDC supported and managed ongoing gardening efforts at the Property between 2001 and 2007.

Upon raising funds therefor, an urban design consultation process was undertaken in 2008 involving WBDC, local residents and stakeholders. [ 5 ] Between 2008 and 2013, WBDC took steps to implement the recommendations flowing from the design consultation process. [ 6 ] In 2013, WBDC formed a partnership with the Westminster Housing Society to develop the Property. A development plan was created to construct a four-storey building on the Property.

The building would have a commercial space on its main floor, 18 housing units, half designated for low-income tenants and half for median market rent and a community garden on the roof of the building available for tenants and the broader community. [ 7 ] Throughout the existence of the Garden, and certainly from 2001 while the Property was owned by WBDC, none of the gardeners using the site, including the applicant, had any legal interest in the Property or paid to use the Property. WBDC

communicated with them annually as to the rules pertaining to the use of the Garden. [8] On July 21, 2014, WBDC posted a notice to all gardeners using the Property (and emailed the applicant) respectingthe plan to develop the Property. The notice stated in part, “As development efforts continue, [WBDC] will only support the short termuse of this land as a garden for the 2014 growing season.” [9] The development of the Property required approval from the City of Winnipeg, both as regards subdivision and re-zoning.

Application was made and proceeded successfully through three committees of the City of Winnipeg, and ultimately theCouncil of the City of Winnipeg, where subdivision and re-zoning of the Property were approved. [10] The applicant and one other person appealed the re-zoning order to the City of Winnipeg Appeal Committee, and theappeal was dismissed. [11] The applicant then applied for judicial review of the by-laws and re-zoning order issued by the City of Winnipeg inrespect of the Property.

She also sought interlocutory injunctive relief against the City. [12] Subsequently, she moved for interlocutory injunctive relief against WBDC, as owner of the Property. This appeal is inrespect of the dismissal of that motion.

The Appeal [13] It would appear from comments of the applicant in her oral submission before the motion judge (the judge), and in hersubmissions on appeal (both written and oral) before this Court, that the applicant has a misapprehension of the role of a judge as regardsthe conduct of the hearing and his/her reasons for judgment. [14] It is apparent from the transcript of submissions before the judge, and from the points raised by her in her written andoral submissions before this Court, that she took umbrage at certain inquiries and comments made by the judge in the course of thehearing.

She was also critical of his judgment insofar as it did not deal with all of the arguments that she made, or the evidence that sheadvanced through the numerous affidavits which she filed. [15] But the law is clear in respect of both comments made in the course of oral submission, and in what is required of ajudge in his/her reasons for judgment. [16] In Faryna v Chorny, (BC CA), [1952] 2 DLR 354 (BC CA), O’Halloran JA wrote (at pp 355-56): Counsel for the appellant submits that the learned trial Judge based his decision upon disbelief of [the witness]’s evidence, and reliesupon observations made by the learned Judge during the course of the trial, while the evidence was still incomplete.

But interlocutoryremarks made by a trial Judge or members of a Court of Appeal during the course of the hearing are not to be regarded as part of thejudgment or the reasons for judgment. That is referred to by the late Chief Justice Martin (then Martin J.A.) in R. v. Frederick (1931), (BC CA), 57 Can. C.C. 340 at p. 345, 44 B.C.R. 547, and see also R. v. McNab, (BC CA), [1945] 1D.L.R. 583 at p. 587, 83 Can. C.C. 176 at p. 181, 61 B.C.R. 74.

I am indebted to my brother Bird for the reference to the clear-cutobservations of Viscount Simon, then Lord Chancellor in [1942] W.N. 89—perhaps I had better read it: “During the hearing of anappeal Viscount Simon L.C., referring to reports which might be made of the case, said that it was well understood that interlocutoryobservations of members of the Board or of a Court were not judicial pronouncements. They did not decide anything, evenprovisionally.

They were made to elucidate the argument, to point the question, or to indicate what were the matters which the judicialspokesman thought needed to be investigated, and that was all.

It would be a very great pity, and a profound error, if anybody . . .supposed that interlocutory observations were anything more.” [17] As regards reasons for judgment, McLachlin CJC, for the Court, in R v REM, 2008 SCC 51, [2008] 3 SCR 3, confirmedthat reasons for judgment serve three main functions: namely, to tell the parties affected by the decision why the decision was made; toprovide public accountability for the judicial decision; and to permit effective appellate review. She wrote (at para 17): These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did.

The object is not to show howthe judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. She referred to the decision of Doherty JA in R v Morrissey (1995), (ON CA), 22 OR (3d) 514 (CA), where at p 525he wrote, “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or shemade that decision.” [18] McLachlin CJC continued (at para 17): What is required is a logical connection between the “what” — the verdict — and the “why” — the basis for the verdict.

Thefoundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and

the history of how the trial unfolded. [19] She wrote (at para 18): Explaining the “why” and its logical link to the “what” does not require the trial judge to set out every finding or conclusion in theprocess of arriving at the verdict. [20] McLachlin CJC continued (at para 20): Similarly, the trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence orcontroverted fact, so long as the findings linking the evidence to the verdict can be logically discerned. [21] In addition, McLachlin CJC gave instruction as to the role of appellate courts in assessing the sufficiency of reasons.

She wrote (at paras 53-54): To justify appellate intervention . . . there must be a functional failing in the reasons. More precisely, the reasons, read in the context ofthe evidentiary record and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable ofpermitting meaningful appellate review.

An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge’s perceptions of thefacts. [22] In the same vein, in R v Dinardo, 2008 SCC 24, [2008] 1 SCR 788, Charron J wrote (at para 30): [T]here is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal.

There isno need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel. [23] Having considered the transcript of submissions before the judge, as well as the applicant’s submissions before thisCourt, it is our opinion that the judge’s inquiries and comments were both legitimate and appropriate.

It is also our view that the judge’sreasons for judgment were comprehensive, both in his review of the facts and the law, and more than compliant with the functionrequired of reasons for judgment. [24] In his reasons, the judge raised and considered whether the applicant had standing to proceed with her motion. Hegranted standing.

Standing was not an issue before us on appeal, and we therefore express no view concerning the judge’s decision inthat regard. [25] As regards the substantive issue on appeal, that is, whether the judge erred in dismissing the applicant’s motion for aninterlocutory injunction, the judge, in his reasons, considered the three criteria to be established by the applicant in order to obtain theinterlocutory injunction she sought.

Those criteria were set out in RJR—MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311, adopting the three-stage test articulated in the decision in Manitoba (Attorney General) v Metropolitan StoresLtd, (SCC), [1987] 1 SCR 110, as follows (at p 334): First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, itmust be determined whether the applicant would suffer irreparable harm if the application were refused.

Finally, an assessment must bemade as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. Itmay be helpful to consider each aspect of the test and then apply it to the facts presented in these cases. [26] He considered each aspect of the test and applied the facts to those three criteria.

Having done so, he found that therewas no serious question to be tried, that the applicant had not suffered, nor would suffer, irreparable harm if the injunction were notgranted and that the balance of convenience favoured WBDC. [27] The applicant had also requested that the Court grant a Mareva injunction (Mareva Compania Naviera SA vInternational Bulkcarriers SA, [1980] 1 All ER 213 (CA)) and an Anton Piller order/injunction (Anton Piller KG v Manufacturing

Processes Ltd , [1976] All ER 779 (CA)). The judge found that there was no basis for granting either. In the result, he dismissed the motion. [ 28 ] The judge’s decision was discretionary. The standard of review for an appellate court in respect of a discretionary decision of a judge is well known. It has been enunciated in many cases, including by Freedman JA in Towers Ltd v Quinton’s Cleaners Ltd et al , 2009 MBCA 81 , 245 ManR (2d) 70 , where he wrote (at para 28): The standard for intervention in a discretionary decision is very high.

It is not enough that the appellate judges think the trial (or motions) judge simply reached a wrong result; there rarely is, in truly discretionary matters, a “right” or “wrong” result. It is not enough that the appellate judges would have decided differently; they are to respect, and not replicate, the unique role of trial judges.

Assuming there have been no reversible errors on fact or law, the appellate judges are not to usurp the trial judge’s role in discretionary matters, barring a decision so “clearly wrong” as to yield a truly unjust result. [ 29 ] Despite the applicant’s passionate advocacy in the written material she provided and in her oral submissions, we have not been persuaded that there is any basis for appellate intervention with respect to the discretionary decision of the judge. [ 30 ] The appeal is therefore dismissed with costs. JA JA JA