Maple Leaf Construction Ltd v Rockwood (Rural Municipality of), 2023 MBCA 75

Citation: Maple Leaf Construction Ltd v Rockwood (Rural Municipality of), 2023 MBCA 75 Date: 20230912 Docket: AI23-30-09910 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) R. C. Roy and ) P. J. Rykes ) for the Applicant ) ) M. G. Tramley maple leaf construction ltd. ) for the Respondent ) ) B. T. Jones (Applicant) Applicant ) for The Municipal Board ) of Manitoba - and - ) ) P. R.

Kathler rural municipality of rockwood ) on a watching brief ) for the 17 Objectors ) (Respondent) Respondent ) Chambers motion heard: ) July 6, 2023 ) ) Decision pronounced: ) September 12, 2023 Cameron JA Introduction [ 1 ] This is a motion for leave to appeal a decision of The Municipal Board of Manitoba (the Board) rejecting the respondent, Rural Municipality of Rockwood’s (the RM), proposed by-law No 12/20 (the proposed by-law).

The proposed by-law resulted from the applicant’s application to rezone lands it owned in the RM to support quarry development and aggregate extraction on said lands. [ 2 ] The RM and the Board take the position that this Court does not have jurisdiction to hear this appeal and, therefore, leave should be denied. For the reasons that follow, I agree.

Background [ 3 ] The applicant applied to the RM pursuant to section 80(1) of The Planning Act , CCSM c P80 (the PA ) for an amendment to by-law No 20/19 (the zoning by-law) to permit it to establish an aggregate quarry operation. [ 4 ] Following a public hearing, the RM resolved by resolution No 2022 129 to deny the proposed by-law. [ 5 ] The applicant appealed the RM’s decision to the Board pursuant to

section 82.1(1) of the PA . After three days of hearings, the Board issued written reasons rejecting the proposed by-law. It is from that decision that the applicant moves for leave to appeal. The Issue and Positions of the Parties [ 6 ] The Board and the RM argue that this Court does not have jurisdiction to hear the appeal. They rely on

section 82.1(10) of the PA , which states:

Decision not subject to appeal 82.1(10) A decision of the Municipal Board on an appeal is final and not subject to further appeal. [7] They submit that the decision of this Court in Morton v Manitoba (Municipal Board), , isdeterminative of their position that

section 82.1(10) of the PA applies. In that case, Monnin JA, writing for the Court on this point, heldthat

section 47 (as it then appeared) of the PA[1] applied to an appeal of an order of the Board.

Section 47 provided that the decision ofthe Board was final and binding and not subject to appeal. Consequently, Monnin JA found that this Court did not have jurisdiction tohear such an appeal. [8] In contrast, the applicant argues that section 60(1) of The Municipal Board Act, CCSM c M240 (the MBA) applies tothe decision of the Board. That

section states: Grounds of appeal 60(1) An appeal lies from any final order or decision of the board to The Court of Appeal upon (

a) any question involving the jurisdiction of the board; or (

b) any point of law. [9] Section 60(2)(

a) of the MBA provides that an appeal shall be taken only by leave of a judge of this Court. [10] In support of its position, the applicant refers to varying methods of statutory

interpretation, including the presumptionof coherence[2], the presumption of overlap[3] and “strained

interpretation.[4]” [11] Applying the above principles, the applicant argues that there is no conflict in the provisions at issue as they servedifferent purposes. It submits that

section 82.1 of the PA provides for a de novo appeal to the Board on the merits and facts of a planningdecision. Therefore, the purpose of

section 82.1(10) of the PA is to eliminate any further appeal regarding merits and facts. Consequently, it argues that section 60(1) of the MBA deals with appeals concerning alleged errors of jurisdiction and legal principles inthe Board’s decision. [12] Alternatively, the applicant argues that, if there is a conflict, an application of the strained

interpretation principlewould lead to the

interpretation it suggests above. [13] Additionally, the applicant submits that Morton is distinguishable or, alternatively, wrongly decided. Analysis and Decision [14] The main issue in this leave motion is whether the decision in Morton applies. In that case, the Court considered it’sjurisdiction to hear an appeal of a rezoning decision made by the Board pursuant to the PA. Monnin JA had initially allowed leave toappeal on a number of questions. At the hearing of the appeal, he raised the issue of the applicability of

section 47 of the PA, whichstated (at para 3): . . . 47. The decision or order of The Municipal Board or the board of a district under

section 46 is final and binding on all persons andis not subject to any appeal. [15] Then

section 46 of the PA dealt (in part) with public hearings and decisions of the Board. [16] Monnin JA observed that he must have earlier granted leave to appeal based on section 60(1) of the MBA, which read(at para 6): . . . 60(1) Subject to The Municipal Assessment Act, an appeal lies from any final order or decision of the board to The Court of Appealupon

(

a) any question involving the jurisdiction of the board; or (

b) any point of law. [17] Writing for the Court (on this point), he found that it did not have jurisdiction to hear the appeal of a rezoning decisionmade pursuant to

section 46 of the PA, based on

section 47 of the PA. In reaching his conclusion, he noted that section 60(1) of the MBA“was enacted many years ago (1959 (2nd Sess.), c. 41) and amended as late as 1963 (c. 50, s. 1) and 1972 (c. 81, s. 21)” (at para 7). Hestated (at para 8): On the other hand, the Planning Act received Royal Assent on June 19, 1975 and was proclaimed some time after January, 1976. It is acompletely new statute and therefore subsequent in time to s. 60(1) of the Municipal Board Act. Moreover, the Municipal Board Act isgeneral, and the Planning Act is special legislation.

Section 47 of the Planning Act clearly specifies that a decision or order of theMunicipal Board is final and binding on all persons and is not subject to any appeal. That language is clear and requires nointerpretation. In that respect I conclude that I erred when I gave leave to appeal even though counsel consented thereto. Consentcannot, in the face of such clear language, confer jurisdiction upon this Court.

The Court has no jurisdiction and cannot pretend toexercise any. [18] The reasoning in Morton that section 60(1) of the MBA is general legislation to which exceptions can by found in morespecific legislation has been applied in Manitoba by Philp JA (in chambers) in Harvard Investments Ltd v Winnipeg, (CA), wherein he held that the general words of section 60(1) of the MBA did not indirectly alter the specific appeal provisions in TheCity of Winnipeg Act, SM 1971, c 105 (see paras 8, 21). [19] In Harvard, Philp JA referred to the method of

interpretation he employed as the doctrine of generalia specialibus nonderogant (see para 4). It is more plainly described by Sullivan as the implied exception rule and explained as follows (at p 354): . . . When two provisions are in conflict and one of them deals specifically with the matter in question while the other has a more generalapplication, the conflict may be resolved by applying the specific provision to the exclusion of the more general one.

The specificprevails over the general; it does not matter which was enacted first. . . . . . . [20] In my view, even more closely related to the reasoning in Morton, a similar type of analysis was explained byBastarache J in Lévis (City) v Fraternité des policiers de Lévis Inc, 2007 SCC 14. In that case, he found a conflict between Quebec’sPolice Act, RSQ c P-13.1 and Quebec’s Cities and Towns Act, RSQ c C-19. In determining which legislation applied, he stated (at para58): When a conflict does exist and it cannot be resolved by adopting an

interpretation which would remove the inconsistency, the questionthat must be answered is which provision should prevail. The objective is to determine the legislature’s intent. Where there is noexpress indication of which law should prevail, two presumptions have developed in the jurisprudence to aid in this task. These are thatthe more recent law prevails over the earlier law and that the special law prevails over the general (Côté [Pierre-André Côté, TheInterpretation of Legislation in Canada, 3rd ed (Scarborough: Carswell, 2000)], at pp. 358-62).

The first presumes that the legislaturewas fully cognizant of the existing laws when a new law was enacted. If a new law conflicts with an existing law, it can only bepresumed that the new one is to take precedence. The second presumes that the legislature intended a special law to apply over a generalone since to hold otherwise would in effect render the special law obsolete. Neither presumption is, however, absolute. Both are onlyindices of legislative intent and may be rebutted if other considerations show a different legislative intent (Côté, at pp. 358-59). [21] The modern approach to statutory

interpretation is that the words of a statute are to be read “in their entire context andin their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”(Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 at para 21). [22] In my view, a contextual analysis leads to the conclusion that the

interpretation of

section 82.1(10) of the PA andsection 60(1) of the MBA advanced by the applicant is not supported by the plain language of the sections or the intent of theLegislature. The fact that such a strained

interpretation was not considered in Morton is not the basis on which to grant leave to appeal. [23] The

interpretation suggested by the applicant is not supported by the plain language of the provisions. There is nothingin

section 82.1(1) of the PA that would suggest that an appeal to the Board of a refusal to proceed with a by-law amendment is on itsmerits and facts alone.

Section 82.1(10) does not limit its application to merits and facts. Similarly, it would defy the intent of the

Legislature were the Court to apply the strained

interpretation principle to read the sections in the manner suggested by the applicant. [ 24 ] Contrary to the applicant’s position, it is my view that Morton is not distinguishable based on the very few differences between the wording of the legislation in place at that time and the current legislation. [ 25 ] In this regard, the meaning ascribed to

section 47 of the PA in Morton is supported by the decision of Klippenstein v Manitoba (Minister of Family Services and Consumer Affairs) , 2012 MBCA 78 . In that case, Hamilton JA, writing on behalf of the Court, held that a provision that provided that a decision from the Court of Queen’s Bench was final and binding and that there was no appeal from it meant that the Court of Appeal did not have jurisdiction to hear the matter.

In reaching her conclusion, she cited numerous authorities, including Morton , wherein such effect was given to similar provisions in various enactments (see para 14). [ 26 ] Given my above comments, I would summarily dismiss the applicant’s submission that the decision in Morton should be reconsidered by this Court on the basis that it was made per incuriam .

A per incuriam decision is “one that was given in ignorance or forgetfulness of a statute or binding authority, inconsistent with the decision, and that, had it been considered, would have resulted in a different decision” ( R v Neves (JA) , 2005 MBCA 112 at para 77 ). There is no evidence of any such error in Morton . [ 27 ] Finally, I also disagree with the applicant’s argument that Morton is a dated decision that fails to account for legislative changes which inform the proper

interpretation of appeal provisions. In this regard, the applicant argues that the failure of

section 82.1(10), or any other provision in the PA , to specifically state that it takes precedence over the MBA evidences a lack of legislative intent for the PA to supersede the current version of the MBA . To demonstrate its position, the applicant refers to section 24(1) of The Water Rights Act , CCSM c W80 (the WRA ), enacted in 1988, which specifically provides that the decision of the Municipal Board “notwithstanding anything to the contrary in The Municipal Board Act , is final and not subject to further appeal” and

section 27 , which provides that where there is conflict “between [the WRA ] and The Municipal Act , [the WRA ] prevails.” [ 28 ] As was argued by the RM, the PA was recently amended in 2021 (see The Planning Amendment and City of Winnipeg Charter Amendment Act , SM 2021, c 36 ). The amendments, in part, included amendments to make local land decisions that were not previously subject to appeal appealable to the Board, including the addition of

section 82.1 of the PA , the

section under which the applicant appealed the decision of the RM to the Board. [ 29 ] Sullivan explains (at p 205): . . . The legislature is presumed to know all that is necessary to produce rational and effective legislation. This presumption is very far- reaching. It credits the legislature with the vast body of knowledge referred to as legislative facts and with mastery of existing law, common law and the Civil Code of Québec as well as ordinary statute law, and the case law interpreting statutes. . . . [footnotes omitted] [ 30 ] Clearly, the

interpretation of very similar sections in Morton , as well as other case law I have referred to, falls within the above. That the Legislature chose not to further specify its intent given its knowledge of the jurisprudence on the issues raised by the applicant is unsurprising. [ 31 ] Morton is established law; I am not convinced that there is any case law from this jurisdiction or others, or any substantive legislative change or change in the principles of statutory

interpretation that would alter its application. Thus, there is no need for this Court to reconsider the decision. [ 32 ] The application of Morton leads to the conclusion that

section 82.1(10) of the PA applies. There is no appeal to this Court from a decision of the Board in these circumstances. [ 33 ] The applicant also advanced a number of arguments supporting its position that the Board made errors, the nature of which constituted questions of jurisdiction and law in satisfaction of the requirements of section 60(1) of the MBA . At the hearing of this leave motion, I was advised that the applicant has also initiated a judicial review of the Board’s decision in the Court of King’s Bench.

In light of that pending proceeding, the applicant asked that, if I were to find that this Court does not have jurisdiction to hear the appeal, I not make comment on its arguments regarding the legal errors it alleges. Accordingly, I have not addressed those arguments in these reasons. [ 34 ] In the result, the motion for leave to appeal is denied, with costs to both the RM and the Board. JA [1] All subsequent references to sections in the PA that were referred to in Morton are as they appeared at that time.