r v Winnipeg, 2016 MBCA 86

Citation: Altemeyer v Winnipeg (City) et al, Date: 20160909 2016 MBCA 86 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 ) for the Respondent West (Applicant) Appellant ) Broadway Development ) Corporation ) ) M.

Muller ) on a watching brief for the ) City of Winnipeg - and - ) ) Appeal heard: ) May 10, 2016 ) CITY OF WINNIPEG and WEST ) Judgment delivered: BROADWAY DEVELOPMENT ) June 22, 2016 CORPORATION ) ) Motion under Court of (Respondents) Respondents ) Appeal Rule 46.2 ) ) Decision pronounced: ) September 9, 2016 PER CURIAM [ 1 ] The applicant moves for an order pursuant to Rule 46.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R, for the rehearing of her appeal. The appeal was dismissed on June 22, 2016.

No certificate of decision has yet been entered. [ 2 ] The applicant filed a memorandum of argument in support of her motion. The respondent, West Broadway Development Corporation (WBDC), filed a memorandum of argument in response.

The City of Winnipeg did not participate in the appeal, nor does it in respect of this motion. [ 3 ] This litigation pertains to a property located at 198 Sherbrook Street in Winnipeg (the Property) and, more particularly, to the continued existence thereon of what the applicant refers to as the Sherbrook Street Community Garden (the Garden). [ 4 ] The Property operated as the Garden for over 20 years and the applicant gardened there since approximately 1995. [ 5 ] WBDC supported and managed ongoing gardening efforts at the Property between 2001 and 2007.

An urban design consultation process was undertaken in 2008 involving WBDC, local residents and stakeholders, and WBDC took steps to implement the recommendations flowing from that process. [ 6 ] In 2013, WBDC formed a partnership with the Westminster Housing Society to develop the Property.

The development would, of necessity, terminate the existence of the Garden, although the building to be constructed on the Property was designed to have a community garden on its roof 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) respecting its plan for development of the Property, and advising that it would only support the continuation of the Garden for the 2014 growing season. [ 9 ] WBDC took steps to obtain the necessary approvals for development of the Property.

The applicant opposed the process throughout, and, in fact, she and one other person appealed to the City of Winnipeg Appeal Committee the rezoning order granted by the City of Winnipeg. The appeal was dismissed. [ 10 ] The applicant then commenced this litigation, seeking judicial review of the by-laws and rezoning order issued by the City of Winnipeg in respect of the Property. That action remains extant. [ 11 ] The applicant also moved for interlocutory injunctive relief against WBDC as owner of the Property to prevent the conversion of the Garden.

The motion for injunctive relief was heard and dismissed by the motion judge. As previously mentioned, the applicant appealed and her appeal was dismissed on June 22, 2016. She now moves for rehearing of the appeal. [ 12 ] In Oliver et al v Blais et al , 2015 MBCA 115 , the Court wrote (at para 7): The rehearing of an appeal is an extraordinary remedy that is rarely granted. It is to be granted only in exceptional circumstances, where the interests of justice demand it.

The heavy burden for a rehearing may be satisfied in circumstances including, but not limited to, where: 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 Samborski Garden Supplies Ltd v MacDonald (Rural Municipality) , 2015 MBCA 53 , 319 ManR (2d) 138 ; Rémillard v Rémillard , 2015 MBCA 42 , 319 ManR (2d) 94 ; Director of Child and Family Services (Man) v AC et al , 2007 MBCA 59 , 214 ManR (2d) 177 ; and Willman v Ducks Unlimited (Canada) , 2005 MBCA 13 , 192 ManR (2d) 39 . [ 13 ] We note that the underlying decision denying injunctive relief was a discretionary decision of a motion judge for which the standard of review for intervention by an appellate court is one of significant deference. [ 14 ] On her appeal before us, both in her written and oral submissions, the applicant proceeded essentially to simply reiterate the arguments that she had made before the motion judge.

We concluded that there was no error on the part of the motion judge and no basis upon which to interfere with his decision. [ 15 ] In our view, the materials filed by the applicant on her motion for a rehearing of her appeal are fundamentally a reiteration of the arguments advanced before us on the substantive appeal. [ 16 ] As indicated, the rehearing of an appeal is a remedy rarely granted.

There is nothing in the materials filed by the applicant that would demonstrate exceptional circumstances sufficient to meet the heavy burden required in order to justify an order for rehearing. [ 17 ] The applicant’s motion is, accordingly, dismissed with costs. JA JA JA