Docket: CACV2202 Frederick Behenna, Sue Peterson, Hans Peterson, Keith Hill, David Haugen, Jacob Vanderschaaf, Jan Woudwijk, Catharina Woudwijk- Hoekstra, Sparrow Properties Inc., Mabel Eliason, Evelyn Johnson, Bernard Britnell, Janet Eliason, Dale Eliason, Lloyd Johnson, Jane Peterman, Patricia Peardon, Amanda Bouchard v. Colin Bouchard, 2012 SKCA 14

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 14 Date: 20120222 Between: Docket: CACV2202 Frederick Behenna, Sue Peterson, Hans Peterson, Keith Hill, David Haugen, Jacob Vanderschaaf, Jan Woudwijk, Catharina Woudwijk- Hoekstra, Sparrow Properties Inc., Mabel Eliason, Evelyn Johnson, Bernard Britnell, Janet Eliason, Dale Eliason, Lloyd Johnson, Jane Peterman, Patricia Peardon, Amanda Bouchard and Colin Bouchard Prospective Appellants (Appellants) - and - Rural Municipality of Rudy No. 284 Prospective Respondent (Respondent) - and - Namaka Farms Inc. Prospective Respondent (Other Party)

Before: Lane J.A. (in Chambers) Counsel: Terry J. Zakreski for the Prospective Appellants Lyle K. Bouvier for the Prospective Respondent, Rural Municipality of Rudy No. 284 Sean M. Sinclair for the Prospective Respondent, Namaka Farms Inc. Application: From: Planning Appeals Committee, Saskatchewan Municipal Board Heard: February 13, 2012 Disposition: Application for leave is denied Written Reasons: February 22, 2012 By: The Honourable Mr.

Justice Lane Lane J.A. [1] The prospective appellants seek leave to appeal a decision of the Planning Appeals Committee of the Saskatchewan MunicipalBoard (“Appeals Committee” or “Committee”) pursuant to s. 33.1 of The Municipal Board Act, S.S. 1988-89, c. M-23.2 which reads: 33.1 Any person affected by an order, decision or determination of the board may appeal to the Court of Appeal against the order,decision or determination on a question of law or on a question concerning the jurisdiction of the board: (

a) within: (i) 30 days after the date on which the order, decision or determination is made; or (ii) any further time, not exceeding 30 days, that a judge of the Court of Appeal may allow on an application made within 30 days afterthe date on which the order, decision or determination is made; and (

b) with leave of a judge of the Court of Appeal. [2] No issue is taken with the principles governing this application for leave and the requirements to be met for the granting of leave. All parties rely on the decision of this Court in Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2002 SKCA 119, 227 Sask. R. 121wherein this Court said, at para. 6: [6] The power to grant leave has been taken to be a discretionary power exercisable upon a set of criteria which, on balance, must beshown by the applicant to weigh decisively in favour of leave being granted: Steier et al. v.

University Hospital Board et al., (SK CA), [1988] 4 W.W.R. 303; 67 Sask. R. 81 (C.A., per Tallis, J.A., in Chambers). The governing criteria may be reducedto two-each of which features a subset of considerations-provided it be understood that they constitute conventional considerations ratherthan fixed rules, that they are case sensitive, and that their point by point reduction is not exhaustive.

Generally, leave is granted orwithheld on considerations of merit and importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? - Is it prima facie frivolous or vexatious? - Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, forinstance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? - Is it apt to unduly delay the proceedings or be overcome by them and rendered moot?

- Is it apt to add unduly or disproportionately to the cost of the proceedings?

Second : Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? - does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? - does it raise a new or controversial or unusual issue of practice? - does it raise a new or uncertain or unsettled point of law? - does it transcend the particular in its implications? [ 3 ] The issue grounding this application arises from an application by the prospective respondent Namaka Farms Inc. to build an Intensive Livestock Operation (“ILO”) in the Rural Municipality of Rudy No. 284.

The prospective respondent Namaka received a discretionary use approval from the Rural Municipality which approval was upheld by the Development Appeals Board and, exercising its discretion under The Planning and Development Act, 2007 , S.S. 2007, c. P-13.2 (the “ Act ”), that Board made a variation in the approval. The Development Appeals Board clarified the municipal approval stating the approval granted was for a discretionary use only and that Namaka would need to apply for a development permit once all required governmental regulatory approvals were obtained.

That Board did not see the application as one for a development permit.

The Board in its unanimous decision approving the discretionary use application stated it was conditional on compliance with the conditions contained in the Council resolution “and the requirement for a formal and complete Development Permit Application being submitted as required… of the Zoning Bylaw to allow Council to consider all relevant requirements of the Zoning Bylaw and Basic Planning Statement” (Board decision, February 9, 2011, para. 21). [ 4 ] The prospective appellants appealed the decision to the Appeals Committee and the Committee varied the Board’s decision setting out the process to be followed on applications for ILOs.

It found the Rural Municipality had the responsibility to review and approve or refuse applications for an ILO discretionary use in relation to the requirements of its zoning bylaw particularly in terms of the land-use separation requirements. It saw the process as a bifurcated one which was contemplated by both the Act and the requirements of the Department of Agriculture. If the Rural Municipality approved, the applicant could then proceed to prepare studies and detailed engineering plans to meet the requirements of the Department of Agriculture.

It noted that going to the trouble and expense of obtaining Agriculture’s approval first would “be pointless unless the developer was assured that the Council would not refuse the application for a discretionary use and development permit” (para. 14 of the Committee decision). [ 5 ] It varied the Board’s decision to reflect this process. The Committee then required Namaka to prepare and submit detailed plans and studies to obtain the Department of Agriculture’s approval and to satisfy the condition of the Rural Municipality’s discretionary use approval.

It stated at para. 16: … It is highly likely that those plans will entail a change in location to buildings and facilities to that shown on initial plans. In this event, the developer will be obligated to secure a new development permit from the RM to ensure that the development satisfies the setback standards for ILO development as required by the zoning bylaw. Through the development permit process will come a further opportunity for the Council to determine whether the final layout of the development complies with the terms of the zoning bylaw.

The development permit process will also afford third parties such as the appellants the opportunity to have their specific concerns relating to separation distances voiced and addressed.

Further, the record indicates the developer’s proposal must meet the regulatory requirements of other governmental agencies, whose processes also include public scrutiny and input concerning potential impacts on water and the environment. [My emphasis] [ 6 ] It went further at para. 17 of its decision, referring to the decision of the Development Appeals Board, noting the Board: … recognized in its decision that the developer and the RM both understood that the process the Board would put in place through the additional condition was required.

Both parties acknowledged to the Committee that they agreed with this process and would follow through. It makes sense to the Committee that the developer and the RM would have known that the broad, conceptual plans approved by council would likely require revision (at a minimum, to provide more details) once Agriculture’s review is complete and before any development occurs on the subject property.

Thus, the Board’s decision provides a reasonable solution and the Committee, in spite of its disagreement with the rationale concerning procedure, concurs that the end result of the process achieves the purpose and intent of the Act , the RM’s planning bylaws and Agriculture’s review and approval process for ILO development. [ 7 ] The Committee noted at para. 18 of its decision: In the Committee’s view, the appellants will be able to provide input to Agriculture’s review process and, based on changes to plans, to appeal at the next step should the developer require a revised or new development permit.

Should the RM subsequently issue a new development permit and the appellants allege that the permit was issued through a misapplication of the zoning bylaw, the appellants

would then be able to appeal the permit issuance on that basis. [ 8 ] The prospective appellants seek leave to appeal raising the following grounds of appeal: 1) The Committee exceeded its jurisdiction in improving a bifurcated development permit approval process which does not exist in the governing bylaws; and 2) The Committee committed an error in law by failing to consider:

i) what minimum separation distance was required under the governing bylaws; and ii) whether the Development Appeals Board of the Rural Municipality of Rudy No. 284 failed to exercise its discretion with respect to increasing the minimum separation distance required. [ 9 ] The prospective appellants, in responding to the requirements set out in Rothmans, Benson & Hedges Inc. say firstly, the appeal could not be categorized as prima facie frivolous or vexatious. They argue the approval process goes beyond the

interpretation of the bylaw and was a modification of the bylaw which the Committee was not authorized to make. They disagree with the Committee that Council can require a second development permit. The prospective appellants further contend the appeal is not destined to fail because the grounds of appeal raise serious doubt as to the correctness of the Committee decision. [ 10 ] The prospective appellants argue the proposed appeal is of sufficient importance and would be a model for future intensive livestock operations approval process.

Finally, they argue the decision ought to be stayed. [ 11 ] The prospective respondents argue the appeal is prima facie frivolous, vexatious or destined to fail in any event. They argue that substantial deference should be granted to the elected decision-makers and, further, this is a process-oriented matter and leave ought not be granted. The Rural Municipality referred to this Court’s decision in Regina (City) v. Gordstone Enterprises Ltd. , 2003 SKCA 36 .

Cameron J.A. at para. 5 states: 5 That being so, there is far less room now than there used to be for obtaining leave to appeal in relation to process-oriented issues. This is especially so in light of the standards by which leave applications are determined. I hasten to add that the door may still be opened, but the key to opening it is a demonstrable case of concrete and material failure, particularly as it may relate to the general, though not necessarily so confined. The key certainly does not lie in speculative, abstract, or harmless failures of process related to the particular.

Raising issues of that sort only adds to what are often substantively burdensome applications, making it more difficult to knife through to the core and hence more difficult to obtain leave. [ 12 ] The Rural Municipality argues the question of whether there is the correct separation distance under the governing bylaw is a decision of little precedential value and is destined to fail. It also contends the Committee’s finding the bifurcated process is actually what is contemplated is a reasonable decision.

Requiring a developer to go to the trouble and expense of getting all proper government approvals without knowing whether or not the municipality was willing to approve the development would create uncertainty and could have the potential of bringing future development to a stop. [ 13 ] I am satisfied the application must be dismissed and therefore leave to appeal is denied. The Committee clearly states the prospective appellants will have other opportunities to challenge the local government’s decisions.

To allow an appeal at this stage could well require the Court to ultimately entertain numerous appeals at every stage of the development process. This is a “process- oriented issue” and in these circumstances does not merit the attention of the Court. Given my conclusion, it is not necessary to consider the other issues raised. I might say as well that given the appropriate deferential standard I find it difficult to identify any error by the Committee. [ 14 ] The application is therefore dismissed with costs in the usual manner.

DATED at the City of Regina, in the Province of Saskatchewan, this 22nd day of February, A.D. 2012. “Lane J.A.” Lane J.A.