E.Z. Automotive Ltd. v Regina (City), 2021 SKCA 109

Court of Appeal for Saskatchewan Docket: CACV3374 Citation: E.Z. Automotive Ltd. v Regina (City) , 2021 SKCA 109 Date: 2021-08-12 Between: E.Z. Automotive Ltd. Appellant (Respondent/Appellant) And City of Regina Respondent (Appellant/Respondent) Before: Caldwell, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Tholl On appeal from: 2019 SKMB 20 , Regina Appeal heard: February 2, 2021 Counsel: Travis Avery for the Appellant Randy Sandbeck, Q.C., and Kelsey Kreklewich for the Respondent Barrington-Foote J.A. I. INTRODUCTION [ 1 ] E.Z. Automotive Ltd. [EZ] is the owner of 102N and 120N Winnipeg Street, in the City of Regina [Property], where it has operated an autobody repair business since 2005. EZ stores many junked vehicles on the Property, which it uses as a source of parts for its repair business.

An autobody repair business has, throughout the life of EZ’s business, been either a permitted use or a discretionary use of the Property under the Regina Zoning Bylaw No. 9250 [Zoning Bylaw]. On that basis, EZ claims that it has the right to store the junked vehicles on the Property. [ 2 ] The City of Regina [City] sees the matter differently. On January 2, 2018, a City development control officer issued an Order to Comply to EZ [Order] pursuant to s. 242 of The Planning and Development Act, 2007 , SS 2007, c P-13.2 [ PDA ].

The Order alleged that EZ was operating a salvage yard in contravention of the Zoning Bylaw and ordered EZ to “cease operation of the salvage yard” by May 15, 2018. The reason the Order was issued was the storage of junked vehicles. [ 3 ] EZ appealed the Order to the City of Regina’s Development Appeals Board [Board] pursuant to s. 219 of the PDA . The Board dismissed the appeal with the condition that the City specify the number of junked vehicles that could remain on the Property [Board decision].

Both the City and EZ appealed the Board decision to the Planning Appeals Committee [PAC] of the Saskatchewan Municipal Board [SMB], pursuant to s. 226 of the PDA and s. 17 (

b) of The Municipal Board Act , SS 1988-89, c M-23.2 [ MBA ]. On January 16, 2019, the PAC allowed the City’s appeal and reinstated the Order without conditions [Committee decision]. [ 4 ] EZ has been granted leave to appeal the Committee decision to this Court pursuant to ss. 33.1 and 33.2 of the MBA : E.Z. Automotive Ltd. v Regina (City) , 2019 SKCA 38 . For the following reasons, I would allow the appeal. II. BACKGROUND A. The Order [ 5 ] The Order was based on an alleged breach of the Zoning Bylaw (which applies on this appeal but has since been replaced).

The breach was described as follows: An inspection of [the Property] on November 6, 2017, revealed that the development or form of development is in CONTRAVENTION of Section(s) 9C.3.9(3) of the Regina Zoning Bylaw No. 9250 as described below: Salvage yard is not a permitted use in the DCD-3 Zone. [ 6 ]

Chapter 9 of the Zoning Bylaw is titled “Special Zone Regulations”.

Part 9A states the purpose of

Chapter 9:

(1) The purpose of this

Chapter is to provide detailed regulations and requirements over and above the general regulations provided in Chapters 4 and 5, for the special use zones, as well as unique land uses allowed in those zones.

(2) The intent of the special zone regulations is to preserve the unique areas of the City, and to ensure that developments in those areas are sensitive to their unique characteristics. [ 7 ]

Section 9C.3.9 established one of these special use zones – the DCD-3 Direct Control District – for an area which included the Property:

3.9 Direct Control District – DCD-3 Lots 25 - 48, Block 41 and Lots 25 - 48, Block 56, Plan AY 5450 100N and 200N Blocks (west side), Winnipeg Street North

(1) Establishment (

a) A Direct Control District entitled DCD-3 Winnipeg Street North Direct Control District is hereby established and includes Lots 25-48, Block 41 and Lots 25-48, Block 56, Plan AY 5450. (

b) Direct Control District - DCD-3 shall be designated on the Zoning Map as DCD-3.

(2) Purpose and Intent (

a) This Direct Control District (DCD-3) is intended to provide a sensitive control of uses on the west side of the 100 and 200 Blocks of Winnipeg Street North. This regulation is needed because of the proximity to the adjacent residential area. [ 8 ]

Section 9C.3.9(3) listed permitted and discretionary uses in DCD-3. They did not include a salvage yard, but did include the following uses that are relevant in this case:

(3) Permitted Uses and Discretionary Uses (

a) Uses permitted in DCD-3 are specified below: … • Automobile sales and service … (

b) Discretionary Uses in DCD-3 are specified below: … • Repair shop … [ 9 ] A repair shop was defined as follows in

Chapter 2 of the Zoning Bylaw: “REPAIR SHOP” – an establishment engaged in the provision of maintenance or repair for goods or equipment associated in the areas of automotive, building and specialized trade, construction, major appliances and farm machinery. [ 10 ] A salvage yard was not defined in the Zoning Bylaw. However, ss. 5B.3.1 and 5B.3.5 provided as follows: 3.1 Purpose The Classification of permitted and discretionary uses in land use zones in this Bylaw has been tied to the land use

definitions provided in

Chapter 2 of this Bylaw or the classifications of economic activities used in the United States Standard Industrial Classification (SIC) Manual, 1987 . The classification of permitted and discretionary uses is intended to: (

a) ensure that incompatible land uses are properly separated; and (

b) facilitate the location of new land uses not specifically mentioned in this Bylaw. … 3.5 Development Officer’s Determination is Final The determination of the Development Officer as to the proper classification of any land use shall be final subject only to appeal to the Development Appeals Board, as provided in

Chapter 18 of this Bylaw. Land use

definitions provided in

Chapter 2 of this Bylaw shall prevail over SIC codes. The SIC codes shall be used to assist the Development Officer in interpreting land use where a specific land use definition is not provided in

Chapter 2. [ 11 ] The City asserts that the following

definitions from the United States Standard Industrial Classification (SIC) Manual, 1987 [Manual] defined a “salvage yard”: 5015: MOTOR VEHICLE PARTS, USED Establishments primarily engaged in the distribution at wholesale or retail of used motor vehicle parts. This industry includes establishments primarily engaged in dismantling motor vehicles for the purpose of selling parts.

5093: SCRAP AND WASTE MATERIALS Establishments primarily engaged in assembling, breaking up, sorting and wholesale distribution of scrap and waste materials. This industry includes auto wreckers engaged in dismantling automobiles for scrap. B. The Board appeal [ 12 ]

Section 219 of the PDA provides for an appeal to the Board from an order of a development officer made pursuant to s. 242(4).

Section 221 provides as follows: 221 In determining an appeal, the board hearing the appeal: (

a) is bound by any official community plan in effect; (

b) must ensure that its decisions conform to the uses of land, intensity of use and density of development in the zoning bylaw; (

c) must ensure that its decisions are consistent with any provincial land use policies and statements of provincial interest; and (

d) may, subject to clauses (

a) to (c), confirm, revoke or vary the approval, decision, any development standard or condition, or order imposed by the approving authority, the council or the development officer, as the case may be, or make or substitute any approval, decision or condition that it considers advisable if, in its opinion, the action would not: (

i) grant to the applicant a special privilege inconsistent with the restrictions on the neighbouring properties in the same zoning district; (ii) amount to a relaxation so as to defeat the intent of the zoning bylaw; or (iii) injuriously affect the neighbouring properties. [ 13 ] EZ specified two grounds of appeal in its Development Appeal Application Form. First, it maintained that its primary use of the Property was an automobile service/repair shop and an automobile rental shop, which are permitted uses.

It asserted that any use of the Property as a salvage yard was incidental or ancillary to these primary purposes. Second, it claimed in the alternative that its primary use is a salvage yard that is a non-conforming use within the meaning of ss. 89–93 of the PDA . It asserted that these primary uses had been conducted on the Property, uninterrupted, for approximately 25 years, and that salvage vehicles have always been used to pursue them.

At the Board hearing, EZ argued that it had operated an autobody repair business since 2005 and that the existence of junked vehicles in pursuit of a lawful business is permissible. [ 14 ] The City submitted to the Board that the only uses permitted in the DCD-3 zone were those expressly listed in

Chapter 9 of the Zoning Bylaw. It argued that the classifications in

Chapter 5 of the Zoning Bylaw were applicable, including the Manual. It asserted that the development officer’s inspection had resulted in a determination that EZ’s use of the Property was a salvage yard within the meaning of the Manual. It claimed that while salvage can be an accessory to the primary function of an autobody repair shop, it is not in this case due to the adverse impact on the neighbourhood. It took the position that EZ would essentially have to remove all junked vehicles from the Property.

It characterized the issue as one of scale, suggesting that while EZ might be allowed to bring some junked vehicles onto the Property to extricate parts, it must then remove them. [ 15 ] The Board made the following findings, most of which are findings of fact that the parties have not challenged:

a) E.Z Automotive performs accredited auto body and automobile repair work on the properties, many of which are through the SGI claims process;

b) Junked vehicles on the properties are used for parts to perform both auto body and auto repair work;

c) E.Z. Automotive recovers parts from wrecked vehicles purchased from SGI and uses those parts to repair their clients’ vehicles;

d) Included in the cost for each part billed by E.Z. Automotive, on the client’s SGI claim, is the cost of the labour for removing the part from the wrecked vehicle purchased from SGI;

e) E.Z. Automotive, on occasion, closes down operations and moves all the junked vehicles away to sell for scrap when the scrap prices are high enough;

f) There are 100 to 200 junked vehicles on the properties;

g) E.Z. Automotive has invested in the properties by repairing the building, putting up fences, installing spray paint booths, installing ventilation systems, purchasing frame machines, and installing SGI technology and computer software;

h) The properties are immediately beside a residential area;

i) Compliance with land use in the Zoning Bylaw was not the subject of previous Orders from Regina Fire Department and Building Standards Officers;

j) The sale of property from the City to the property owner involved the property owner’s other property on Quebec Street, not the properties subject to this Order to Comply;

k) The Official Community Plan consists of broad policy statements and does not provide a specific definition as to what compatibility within a neighbourhood means nor does it provide a specific framework for regulating the character of neighbourhoods; and

1) There was a letter from the North East Community Association and an e-mail from a neighbouring property owner, where they expressed opposition to a salvage yard on the properties, primarily due to the resulting negative aesthetics to the neighbouring property owners. [ 16 ] The Board then offered its analysis and conclusions. It noted that s. 9C.3.9(3) lists permitted uses and discretionary uses, “with all other uses prohibited”. It pointed out that the phrase “salvage yard” does not appear in the bylaws.

It found that the descriptions in the Manual referenced above do not define a salvage yard, but “are simply descriptions of a couple of categories of establishments” (at 20). [ 17 ] On this basis, the Board concluded that the issue was not whether EZ was operating a salvage yard, but whether its operation was a permitted use.

It found that EZ operated a business falling within two permitted uses – “Automobile sales and service” and “Repair shop” – but that it did so in “a way that is quite different than the typical ‘automobile service’ or ‘repair’ business”, reasoning as follows at page 21: While some junked vehicles may need to be on the properties for [EZ] to access parts for repairs, the high number of junked vehicles stacked on top of each other on the properties and the eyesore that is created as a result places this operation outside the permitted use and makes it something else.

In addition, the Board finds compelling the [City’s] argument regarding the large negative visual impact on the immediate residential neighbourhood , supported by two letters from the community association and a neighbouring property owner. The Direct Control District 3 designation in the bylaw which requires development to be sensitive to the adjacent residential area and the unique character of the neighbourhood helps to define the scope of what would constitute the permitted use of “automobile sales and service” and “repair shop”, as the [City] argues.

Whatever this is – whether one describes it as a “salvage yard” or something else – it falls outside any “permitted use”. (Emphasis added) [ 18 ] Having reached the conclusion that EZ’s operation was not a permitted use, the Board confirmed the Order. However, it did so on the condition that the City “make clear the number of junked vehicles that can remain on the properties in order for [EZ] to access parts for their automobile repair service” (at 21). C. The PAC appeal [ 19 ]

Section 17 of the MBA provides that the SMB shall hear appeals under the PDA .

Section 12 of the MBA provides that the board shall appoint three or more of its members to sit as a committee to hear s. 17 appeals.

Section 226 of the PDA provides for an appeal of a decision of a development appeals board to the SMB. Both EZ and the City appealed the Board decision pursuant to these provisions. [ 20 ] The Committee decision was based on the record before the Board and written submissions from the parties—it did not conduct an oral hearing. In its submission, the City conceded that EZ was operating an autobody repair shop on the Property and that this constituted a “Repair Shop” within the meaning of the Zoning Bylaw.

However, it argued that EZ was also operating a “Salvage and Recycling Yard”, which the City continued to maintain was defined in the Manual and was a prohibited use in the DCD-3 zone.

It submitted that the Board, by making the Order conditional on the City specifying the number of junked vehicles that could remain on the Property, had erred by permitting a prohibited use on a limited scale. [ 21 ] The City also took the position that the Board’s direction that it specify how many junked vehicles could remain on the Property was contrary to the decision in Immeubles Jacques Robitaille inc. v Québec (City) , 2014 SCC 34 , [2014] 1 SCR 784, which affirmed that a municipality could not consent to a non-conforming use.

On that basis, the City said that it could not specify how many vehicles could remain, as that would permit such a use. Accordingly, the City requested that the PAC remove this condition and confirm the Order in its original form, with a three-month deadline for EZ to comply. [ 22 ] The City also submitted that a salvage yard is incompatible with residential development and with the intent of the DCD-3 zone, which was established to provide sensitive control of uses on the west side of Winnipeg Street because of the proximity of the adjacent residential area.

It noted that it had received numerous complaints from area residents. Further, the City asserted that the Board decision was inconsistent with the Official Community Plan. [ 23 ] EZ took the position that the Board’s approach of first attempting to classify EZ’s operation based on the available evidence and then determining whether that use is prohibited by the Zoning Bylaw was correct. It argued that the Board did not err in deciding that the Manual did not define a salvage yard.

In EZ’s view, the real issue in the appeal was determining the line between an unlawful salvage yard and a lawful autobody repair service. It argued that the Board had decided that issue in part, by finding that EZ was carrying on a lawful business but that stacking vehicles was not permitted. EZ asserted that the PAC was not entitled to interfere with these conclusions, as they were within the Board’s authority: At the end of the day the DAB is an administrative body with relative expertise in zoning matters.

The DAB reviewed the available evidence, considered the arguments as they were presented, and considered the applicable portions of the zoning bylaw. The DAB concluded that E.Z.’s business is lawful; but that stacking junked vehicles on top of each other is not permitted. The City has presented no compelling reason to overturn these findings. [ 24 ] EZ did take issue with one aspect of the Board decision. It submitted that the Board had unlawfully delegated the authority to fix the maximum number of junked cars permitted on the Property to the City and, by doing so, had failed to fully decide the appeal.

In EZ’s view, the Board – having identified the line between a lawful autobody repair service and an unlawful salvage yard – had only two options: to either revoke the Order in its entirety, or to vary the Order to require EZ to cease stacking vehicles, as it had decided stacking vehicles was not permitted. It asserted that the PAC’s decision that the City must determine the number of junked vehicles it would permit made it impossible for EZ to comply, as it was not possible to say what would constitute compliance. [ 25 ] In the result, the PAC agreed with the key arguments advanced by the City.

It found that the Board had erred by deciding that a

salvage and recycling yard is not a use defined “in the Bylaw by way of the [Manual]” and by finding that a salvage yard is not a prohibited use in the DCD-3 zone (at para 17). It noted the Board’s finding of fact that EZ cleared the Property of scrap vehicles from time to time and sold them to a scrap yard. It adopted the City’s submission that “the storage of junked vehicles on the [Property] is not a permitted use regardless of its relationship to the auto repair business” (at para 17). [ 26 ] The PAC concluded that the Board had erred by finding that it had the authority to approve a prohibited use.

It found that the Board had determined that the storage of junked vehicles on the Property – and not simply, as EZ asserted, the stacking of junked vehicles – was not a permitted use. That, in turn, led the PAC to reach the following conclusion: [23] When this finding is applied with the Board’s responsibility to ensure that its decision conform to the use of land, intensity of use and density of development in the Bylaw set out in subsection 221(

b) of the [ PDA ], we agree with the City that requiring the Development Officer to grant a use that the Bylaw does not permit is an error of law. [ 27 ] EZ had also argued that the City had, in the course of various dealings with EZ, approved its use of the Property as a repair service, including the storage of junked vehicles. The Committee decision did not address that issue. [ 28 ] Finally, EZ had submitted to the PAC that it should be awarded solicitor-client costs throughout, as the City had engaged in what EZ characterized as unacceptable, callous and oppressive litigation conduct.

That conduct included a failure to disclose documents that were finally disclosed only when so ordered by the Board. The PAC commented that the SMB is extremely reluctant to award costs and that it would require a finding of significant misconduct before it would do so. It found that the City’s actions during the Board hearing and the PAC appeal did not warrant an award of costs. III. ISSUES AND STANDARD OF REVIEW [ 29 ] EZ was granted leave to appeal the Committee decision in relation to four issues.

I have concluded that I can dispose of this appeal by answering the following questions, both of which are questions of law: (

a) Did the PAC err by applying the wrong standard of review to the Board decision? (

b) Did the PAC err by finding the Board had erred when it interpreted the Zoning Bylaw as permitting some junked vehicles to remain on the Property? [ 30 ] EZ was granted leave to appeal in relation to two other issues, being whether the PAC had failed to provide sufficient reasons for its decision and whether it had failed to give effect to s. 221 (

a) of the PDA . Given how I have decided the appeal, I need not deal with those two issues. [ 31 ] As to the standard of review to be applied by this Court to the Committee decision, this is a statutory appeal from the decision of an administrative tribunal.

In Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ], the Supreme Court of Canada adopted the following presumption [statutory appeal presumption]: [37] It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision.

This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. … [ 32 ] An appeal pursuant to s. 33.1 of the MBA is limited to questions of law or jurisdiction. The appellate standard of review relating to the two questions of law I have identified is correctness: Housen v Nikolaisen , 2002 SCC 33 at para 8 , [2002] 2 SCR 235.

That was the standard of review applied by this Court on a s. 33.1 MBA appeal prior to the decision in Vavilov : Big River (Rural Municipality) v Pettigrew , 2021 SKCA 30 at para 43 , 13 MPLR (6th) 175 [ Pettigrew ]; and Gary L. Redhead Holdings Ltd. v Swift Current (Rural Municipality ), 2017 SKCA 47 at para 88 , 415 DLR (4th) 218, as was recently affirmed in Freeborne Developments Ltd. v Corman Park (Rural Municipality) , 2021 SKCA 48 at para 15 . IV. Did the PAC err by applying the wrong standard of review to the Board decision? A. Standard of review: Framing the issue [ 33 ] Section 12(1) (

b) of the MBA provides for the appointment of a committee of the SMB to hear appeals under the legislation specified in s. 17, including the PDA : 17 The board shall hear and determine appeals: (

a) and other matters under The Planning and Development Act, 2007 , or any order or regulation passed pursuant to it; (

b) from the Meewasin Valley Appeal Board under The Meewasin Valley Authority Act ; (

c) relating to municipal maintenance orders under The Municipalities Act and The Northern Municipalities Act, 2010 ; and (

d) relating to development permits issued pursuant to The Global Transportation Hub Authority Act .

[34] Section 12(1) also provides for the appointment of Board committees to hear appeals under other specified legislation,including assessment appeals pursuant to The Cities Act, SS 2002, c C-11.1, The Municipalities Act, SS 2005, c M-36.1, and The NorthernMunicipalities Act, 2010, SS 2010, c N-5.2. [35] The PAC, accordingly, is an internal appellate tribunal and must apply an internal standard of review. As Jackson J.A. recentlycommented in Pettigrew, the issue of the internal standard of review that applies to a s. 17(

a) appeal has not been fully addressed by thisCourt: [46] To date, there have been few cases in this Court considering the standard of review for a planning and development committee toapply to a development appeals board. However, in Dolman v Royal West Equities Corp. (1990), (SK CA), 87 Sask R277 (CA) [Dolman], this Court dismissed an appeal from the Committee, which had, in its turn, dismissed an appeal from the City ofSaskatoon’s Development Appeals Board.

The Court could find no error of law in the Committee’s approach or conclusion or that it haderred in law or misconstrued or misapplied the statutory provision in question. [47] Having regard for Laing and Dolman, the standard of review that I will apply in relation to the Committee’s review of the Board’sdecision under s. 221(

d) is one that empowers the Committee to review for material error of fact, law or development principles. In doingso, it is understood that a failure to properly construe or apply a statutory or regulatory provision can amount to a material error of law ascan the consideration of an irrelevant factor. Since, the question of the standard of review in relation to planning and development mattershas been raised as a specific question of law in an appeal pending in this Court (see E.Z.

Automotive Ltd. v Regina (City), 2019 SKCA 38,reviewing 2019 SKMB 20), and in light of the limited submissions in this appeal, I will make no further comments on the issue. [36] Nor has the standard of review to be applied by the PAC been addressed since the decision in Vavilov. Although Vavilov did notaddress internal standards of review, there is a live issue as to whether and how it impacts the analysis in that context.

That issue hasgenerally been defined as being whether the statutory appeal presumption that applies when legislation provides, as here, for an appeal toa court also applies where the statute provides for an appeal to an internal appellate body. [37] There is some authority relating to this issue.

In Yee v Chartered Professional Accountants of Alberta, 2020 ABCA 98, 9 AltaLR (7th) 10 [Yee], the Alberta Court of Appeal did not deal directly with the impact of Vavilov on the internal standard of review.However, Slatter J.A., in reasons that concurred in the result, did affirm that “[o]f central importance in setting the internal standard ofreview is the role assigned to the appeal tribunal by the governing statute” (at para 34), citing Newton v Criminal Trial Lawyers’Association, 2010 ABCA 399, [2011] 4 WWR 232 [Newton]; Zuk v Alberta Dental Association and College, 2018 ABCA 270 at para 71,426 DLR (4th) 496; and City Centre Equities Inc. v Regina (City), 2018 SKCA 43, 75 MPLR (5th) 179 [City Centre]. [38] Justice Slatter’s reasons have been relied on by both courts and internal appellate tribunals as affirming that the statutory appealpresumption applies only to the external standard of review – that is, to review by a court of a decision of an administrative tribunal – andnot to the internal standard of review applied by an internal appellate tribunal: see Ackron Egg Farms Ltd. v Manitoba Egg Farmers, 2020MBQB 187 at para 90; Kaderabek v Alberta Health Services, Emergency Medical Services, 2021 CarswellAlta 1072 (WL) (LRB (OHS));Ledcore Pipe & Infrastructure and Alberta (Occupational Health and Safety), Re, 2021 CarswellAlta 1019 (WL) (LRB (OHS)) at paras18–20; and Re O’Brien, 2020 ABASC 160. [39] Justice Slatter’s reasoning as to the correct approach to determining the internal standard of review was also adopted in Moffatv Edmonton (City) Police Service, 2021 ABCA 183 [Moffat].

Moffat was a direct appeal from a decision of the Alberta Law EnforcementReview Board [LERB], an internal appellate tribunal, to the Alberta Court of Appeal. The LERB decision was the result of an appeal of adisciplinary decision that had been made by a presiding officer under the Police Act, RSA 2000, c P-17. [40] In Moffat, there were per curiam reasons by Greckol J.A. and Hughes J.A. and concurring reasons by Wakeling J.A.

The percuriam reasons dealt with the impact of Vavilov on the standard of review in relation to both the Court’s review of the LERB decision andthe LERB’s review of the decision of the presiding officer. They concluded that the Vavilov statutory appeal presumption applied to theCourt’s review of the decision of the LERB, as that review was pursuant to a statutory right of appeal (at paras 41–44). [41] The Court also held that, as was the case before Vavilov, both the LERB’s choice of its standard of review and its application ofthat standard to the facts were reviewable on a correctness standard.

That is consistent with the approach adopted by the Federal Court ofAppeal: Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93, [2016] 4 FCR 157 [Huruglica]. Other courts have reached adifferent conclusion on this point, see, for example: Harding v Law Society of British Columbia, 2017 BCCA 171 at paras 25–26, [2017]12 WWR 106 [Harding]; and Law Society of Upper Canada v Nguyen, 2017 ONSC 5431 at paras 39–40. [42] As to the internal standard of review, the Court in Moffat noted that Vavilov did not deal with that issue, but only with judicialreview of administrative decisions.

It held that Yee had found that Vavilov had not changed the approach to determining internal standardsof review and that the Newton approach continued to apply. It expressly rejected the idea that the use of the word “appeal” always signalsthat the appellate standards of review apply, affirming that the analysis should focus on the role assigned by the legislature to the firstinstance and appellate administrative decision-makers. It offered a principled explanation for these conclusions: [53] This is because Vavilov concerned judicial review – as did Dunsmuir.

An internal administrative appeal, by contrast, is in adifferent category altogether. As stated in Newton at para 37: “The role of an internal appellate tribunal operating within an administrativestructure is significantly different from that of an external reviewing superior court”. Vavilov, like Dunsmuir, concerns “external review ofadministrative action”, whereas “[d]ifferent, although overlapping considerations apply to review at various internal levels within theadministrative structure”: Yee at para 32, emphasis in original.

The standard of review analysis relating to judicial review arises out of thetension between

i) the legislative choice to delegate certain matters to administrative decision-makers and ii) the constitutional need forcourts to preserve the rule of law, something not at issue in an internal administrative appeal: Canada (Citizenship and Immigration) vHuruglica, 2016 FCA 93 at para 47 [Huruglica]; Larochelle c Comité de déontologie policière, 2015 QCCA 2105 at para 36 [Larochelle];Paul Daly, “Les Appels Administratifs au Canada” (2015) 93:1 Can B Rev 71 at 80 [Daly]; William Shores, “Vavilov and the Regulationof the Professions”(2020) 33 Can J Admin L & Prac 195 at 226. [54] Accordingly, the judicial review framework cannot settle the standard of review as it relates to internal administrative appeals.

Instead, determining an internal standard of review is primarily a question of interpreting the relevant legislative regime to discern therespective roles given to the first instance decision-maker and the appellate administrative tribunal: Newton at para 57; Yee at para 34;City Centre Equities Inc. v Regina (City), 2018 SKCA 43 at paras 58-59. The answer will always depend on the particular legislativeregime at issue: Workers Comp. of P.E.I. v Dyment, 2016 PECA 10 at paras 40, 44 [Dyment].

And as noted in Huruglica at para 46, “thelegislator can design any type of multilevel administrative framework to fit any particular context”. [55] For this reason, the word “appeal” in a governing statute cannot be imbued with one fixed meaning as it relates to an internalappeal tribunal, let alone one denoting an appellate standard of review.

Vavilov concluded that a statutory right of appeal evidenced alegislative intent to apply the appellate standards from Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 [Housen], partly because theword “appeal” should be given the same meaning in an administrative law context as in a civil or criminal one: para 44. Cst. Moffat urgesan extension of that rationale here: since the Police Act allows for an “appeal” from a decision of a Presiding Officer to the LERB, this issaid to signal a legislative intent that the LERB review such decisions using the Housen framework.

However, where an appeal is to abody other than a court, it cannot be presumed in all instances that the legislature intended by the use of the word “appeal” a standard ofreview framework designed for courts.

To the contrary, internal administrative appeals are of multiple types and therefore do not admit toone single approach to standard of review: Daly at 88-101. (Emphasis in original) [43] In his concurring reasons, Wakeling J.A. agreed that the statutory appeal presumption does not apply to statutory appeals tointernal appellate tribunals. [44] I also note the reasoning in Eniceo v The Life Insurance Council of Saskatchewan [Eniceo], a February 11, 2021, decision ofthe Appeal Panel of the Financial and Consumer Affairs Authority of Saskatchewan, pursuant to The Insurance Act, SS 2015, c I-9.11, s10-34(2), from a decision of the Market Practices Committee of the Life Insurance Council.

Section 10-34 of that Act creates a statutoryright of appeal to the Appeal Panel and s. 10-38 provides a statutory right of appeal to this Court on questions of law. The Appeal Panelreached the same conclusion as Moffat, finding that Vavilov was of no assistance in determining the standard of review and did not changewhat the Appeal Panel described as “the ‘statutory

interpretation’ approach set out in City Centre Equities” (at para 29). [45] There is, accordingly, a good deal of authority that Vavilov changed nothing in relation to internal standards of review.However, some internal appellate tribunals have reached the opposite conclusion, finding that Vavilov means that the statutory appealpresumption applies to all statutory appeals, including those to an internal appellate tribunal.

In Lepage Contracting Ltd. v McCutcheon, (SK LRB) [Lepage], for example, the Saskatchewan Labour Relations Board dealt with a wage assessment appealpursuant The Saskatchewan Employment Act, SS 2013, c S-15.1. Vice-Chairperson Mysko rejected the City Centre approach, which, likeYee, called for a full statutory

interpretation. She instead found that Vavilov means that where the statute provides for an appeal to aninternal appellate tribunal, appellate standards of review apply, just as they do on an appeal from an administrative decision-maker to acourt: [33] In Edmonton East (Capilano), the majority held that a statutory right of appeal does not qualify as a new category of matterssubject to the correctness standard of review. The majority in Vavilov overturns this holding.

By adopting the appellate standards ofreview, the Board applies the underlying principle of Vavilov, which is to demonstrate respect for the choice of the legislature in creating astatutory right of appeal. [46] Lepage and Eniceo demonstrate fundamentally different approaches by two Saskatchewan administrative appellate tribunals.The issue has not yet been decided by a Saskatchewan court. I granted leave to appeal the Saskatchewan Labour Relations Board decisionin Lepage: Lepage Contracting Ltd. v Saskatchewan (Employment Standards), 2020 SKCA 29 (in Chambers).

Although the standard ofreview was not at issue in the leave application, I made the obiter comment that the Board had correctly decided that the appellatestandard of correctness applied, as the statutory right to appeal the decision of an adjudicator pursuant to s. 4-9 of The SaskatchewanEmployment Act was limited to questions of law.

I referred to Vavilov but did not explain why it was relevant. [47] The Saskatchewan Labour Relations Board has, since Lepage, repeatedly applied a correctness standard in the context ofemployment standards appeals: Missick v Regina’s Pet Depot, (SK LRB); Arch Transco Ltd. v United Steel, Paperand Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, (SKLRB); and Saskatchewan Polytechnic Students’ Association Inc. v Benard, (SK LRB). It is not the only tribunal thathas done so.

The same approach was taken by the Ontario Law Society Tribunal Appeal Division in Law Society of Ontario v Chijindu,2020 ONLSTA 19 [Chijindu], where Chairman Mercer wrote: [37] In other words, where there is a statutory right of appeal, Housen v. Nikolaisen and related jurisprudence now ordinarily providethe standard of review on appeal. While the reasons in Vavilov only address statutory appeals to courts from administrative decisions, thelogic of Vavilov applies to Appeal Division appeals from the Hearing Division. [38] The Law Society Act provides for an appeal to the Appeal Division.

The logic of Vavilov requires that, as a matter of statutoryinterpretation, an appellate standard of review be applied in this statutory appeal. This makes practical sense given the further statutoryappeal to the Divisional Court. It makes sense that a Housen v. Nikolaisen type of review be undertaken both by the Appeal Division andthe Divisional Court. A Vavilov review by the Appeal Division followed by a Housen v.

Nikolaisen review by the Divisional Court wouldadd conceptual complexity and uncertainty. [39] Therefore, the standard of review applied by the Appeal Division is now: a. correctness for questions of law, including questions of statutory

interpretation and questions concerning the scope of authority of theHearing Division; b. palpable and overriding error for questions of fact and questions of mixed fact and law where the legal principle is not readilyextricable. Canada (Minister of Citizenship and Immigration) v. Vavilov, para. 37

[ 48 ] In Law Society of Ontario v De Rose , 2021 ONLSTA 9 [ De Rose ], the Tribunal Appeal Division again considered the effect of Vavilov . Despite sounding a cautionary note against engaging in an extensive review of the impact of Vavilov in this context, it made the following interesting observations: [19] On questions of law, the standard of review in the Appeal Division before Vavilov was correctness under the Dunsmui r framework for statutory appeals.

Vavilov deals explicitly only with statutory appeals from an administrative tribunal to a court, rather than an internal appeal within the Law Society Tribunal, for example. Nevertheless, Vavilov provides no impetus to alter the Appeal Division’s correctness standard; the Supreme Court adopted the same standard for the statutory appeals to a court that it considered. [Footnote omitted] [20] On questions of fact or mixed fact and law, the standard of review under Dunsmuir was reasonableness.

Vavilov changes that formulation, albeit directly only in the hearing of appeals by courts, to “palpable and overriding error” to assimilate appellate courts’ standards of review in civil and administrative law appeals. Importantly, the Supreme Court in Vavilov stresses the need to respect legislative choices, within the bounds of adherence to the rule of law, and the Law Society Act , RSO 1990, c.

L.8 (the Act ), grants appeal rights to the Appeal Division and then to the Divisional Court in very similar language. [21] It therefore makes sense, in my view, to apply the same “palpable and overriding” standard for questions of mixed fact and law in appeals to the Appeal Division, for three reasons. First, for purposes of comity, and to avoid unnecessary confusion, given that appeals may proceed to the Appeal Division and then to the Divisional Court. Second, for purposes of practicality, given the likelihood that “reasonableness” and “palpable and overriding error” establish substantively similar criteria.

Third, because ss. 49.38 and 49.39 of the Act , providing for appeals from the Appeal Division to the Divisional Court that are therefore directly subject to Vavilov , involve grounds of appeal that are very similar to those on which appeals can be taken from the Hearing Division to the Appeal Division. [ 49 ] These conflicting decisions confirm the need to resolve the question of the impact of Vavilov on internal standards of review.

In “Unresolved Issues after Vavilov”, 2020 CanLIIDocs 3615 , Professor Paul Daly summarized his view of the post- Vavilov state of play relating to internal standards of review, which he correctly characterized as a question of “perennial importance” to appellate administrative tribunals. Professor Daly observed as follows (at 4): First, I have long argued in this context that borrowing from the law of judicial review is a category error.

There will be a temptation to argue after Vavilov that appeals from a first-instance administrative decision-maker to an appellate administrative tribunal should attract the Housen v Nikolaisen framework just like an “appeal” from an administrative decision-maker to a court. This temptation should be resisted, in my view. Vavilov , just like Dunsmuir before it, addresses a problem in the area of judicial review – that is, the relationship between administrative decision-makers and reviewing courts.

Vavilov is not concerned with the relationship between different parts of the administrative decision-making structure. Vavilov is a judicial review case and thus in a different category to an internal administrative appeal.

That similar words or phrases are used should not blind us to this categorical difference. [Footnotes omitted] [ 50 ] Seen through this lens, decisions such as City Centre , Yee , and Moffat are on the right track, while the authors of decisions such as Chijindu and Lepage have fallen victim to temptation by applying the statutory appeal presumption to determine the internal standard of review. For the reasons explained below, it is my view that Professor Daly’s analysis on this point – which mirrors the reasoning in Moffat – is correct. B.

Internal standard of review: The City Centre framework [ 51 ] Although the parties disagree as to whether certain matters decided by the PAC were questions of law or mixed fact and law, they agree on the internal standard of review. Both submit that the internal standard of review in relation to questions of mixed fact and law is reasonableness.

Although EZ’s position is less clear in relation to appeals on other grounds, I understand the parties also agree that the reasonableness standard applies to findings of fact and that the correctness standard applies to questions of law. [ 52 ] Both parties rely on City Centre in this context. The City also cited Sasco Developments Ltd. v Moose Jaw (City) , 2012 SKCA 24 , 385 Sask R 287 [ Sasco ]; Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 , 73 MPLR (5th) 1 [ Corman Park ]; and Saskatoon (City) v Victory Majors Investments Corporation , 2020 SKCA 59 .

All of these cases, including City Centre , dealt with appeals from decisions of the assessment appeals committee, which, as is noted above, is the committee appointed pursuant to s. 12 of the MBA to hear the assessment appeals pursuant to the legislation specified in s. 16(1) of the MBA . [ 53 ] In City Centre – the key Saskatchewan authority on the approach to be taken in determining the internal standard of review – Whitmore J.A. asked the following question: [42] …What approach should be taken in determining the standard of review to be applied by an administrative appellate tribunal to the decision of an administrative tribunal of first instance?

That is, should the approach be that of Dunsmuir , the appellate standard as stated in Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 [ Housen ], or something else entirely? [43] As will be demonstrated below, courts have not followed Dunsmuir or Housen in this context, and have instead taken different approaches. While the proper approach and what factors are considered remains unsettled, there is, nevertheless, one common theme among jurisdictions: What role did the Legislature intend the appellate tribunal to play?

I will summarize the varying approaches taken to resolve this question. [ 54 ] After canvassing the inconsistent case law from other appellate courts relating to the internal standard of review, including Newton , Huruglica , Harding , and Prince Edward Island (Workers Compensation Board) v Dyment , 2016 PECA 10 , 376 Nfld & PEIR 107 [ Dyment ], Whitmore J.A. adopted the following approach:

[58] Conflicting approaches have been taken in the above-noted decisions but, in general terms, there is one common element amongthem: the intention of the legislature as revealed by statutory

interpretation ultimately determines what standard of review an appellatetribunal should apply. I agree with Jenkins C.J.P.E.I., who expressed the following in Dyment: [40] Counsel cited jurisprudence in this and other jurisdictions as examples of hybrid standards of review. While this case law providesa window on the world of internal standard of review, it provides only limited assistance on the standard of review issue in this appeal. Italways depends on the language of the enabling statute; all cases cited share the view that standard of review is a matter that depends onstatutory

interpretation. None suggest that a new standard is called for only because Dunsmuir and its progeny call for deference injudicial review of administrative decision-making. Those cases come to a variety of conclusions; and most do not necessarily prescribedeference. It always depends.

Some, or most, of the decisions acknowledge virtues of deference; however, the particular decision on extentof deference is often left with the appellate tribunal rather than being imposed as a judicial requirement. [Emphasis added in City Centre] [59] In my view, this is the proper approach to determining the standard of review that the Committee should apply in the present case.The standard of review should be determined by conducting a full exercise in statutory

interpretation, which ultimately will answer whatrespective roles the Legislature intended the Committee and Board to fulfill. Consequently, I will now turn to the governing principles ofstatutory

interpretation, which demonstrate the Legislature intended for the Committee to fulfill a traditional appellate role such that itgives deference to the Board on questions of fact. (Emphasis added) [55] Having adopted this analytical framework, Whitmore J.A. conducted that “full exercise in statutory

interpretation” (at para 59),applying the modern principle of statutory

interpretation adopted in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR27 at para 21; that is, “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament”. The modern principle has since been codified in s.2-10(1) of The Legislation Act, SS 2019, c L-10.2.

Because the appeal was an assessment appeal, Whitmore J.A. considered The CitiesAct, The Municipal Board Act, and The Public Inquiries Act, 2013, SS 2013, c P-38.01, noting that “these three Acts set out the proceduresand powers of the Board and the Committee” (at para 62). [56] After briefly describing the role of an assessor (the first level decision-maker), Whitmore J.A. reviewed the nature and conductof an appeal to the board of revision – the first level internal appellate tribunal in the context of an assessment appeal, which extends toany decision by an assessor.

Boards of revision are appointed by city councils and, subject to certain limits, their qualifications aredetermined by city council. There is pre-hearing disclosure of written materials, and an assessment field sheet filed by the assessor thatexplains how the assessment was determined. Boards can compel the attendance of persons having charge of the assessment roll and ofdocuments relating to the appeal. They have the authority to confirm or change the assessment. [57] Justice Whitmore turned next to the role of the assessment appeals committee (at para 74 et seq).

He noted that TheSaskatchewan Municipal Board Member Qualification Regulations, 2003, RRS c M-23.2 Reg 5 [Board Regulations], set eligibilityrequirements for members of the Municipal Board, which require greater expertise and experience than those appointed to a board ofrevision. He adverted to the broad right to appeal a decision of a board of revision conferred by The Cities Act and to the fact that thesecretary to the board is required to transmit the record of the proceedings before the board to the committee.

He pointed out that thecommittee was empowered to hear and determine questions of fact or law (ss. 12(6) and 20(1), MBA), to require returns from variousofficials, and to exercise the powers conferred by ss. 11, 15 and 25 of The Public Inquiries Act, 2013 (s. 20(9), MBA). Those powersincluded requiring a person to give evidence and produce documents and to hold a person in contempt. [58] However, Whitmore J.A. then noted that s. 222 of The Cities Act provides that an appeal to the committee is an appeal on therecord and that s. 223 limits the authority of the committee to allow new evidence on appeal.

This led him to stress that an appeal to thecommittee is not an appeal de novo: [82] Therefore, while the Saskatchewan Municipal Board, and consequently the Committee, ostensibly have broad powersunder The Municipal Board Act and The Public Inquiries Act, 2013, these powers are curtailed by the express wording in The Cities Act:appeals are to be on the record and new evidence is not to be adduced (absent narrow circumstances), in spite of these powers.

Instead, theCommittee is limited to the record of the proceedings before the Board. (Emphasis in original) [59] After noting the broad corrective powers of the committee, Whitmore J.A. explored the legislative history of the 1996amendments relating to assessment appeals and, in the result, observed as follows: [89] Thus, the purpose of the 1996 amendments was to strengthen the Committee’s appellate role.

These amendments place the onuson a board of revision to develop the record by hearing the evidence and finding facts, while the Committee is now constrained to therecord and only able to hear new evidence in limited circumstances.

The Committee’s role, now, is to review the record before the Boardto determine whether it erred. [60] He then cited existing case law which characterized the role of the assessment appeals committee as that of an appellatetribunal, the function of which is to examine the decision of the board of revision for error, rather than undertaking a reassessment: Regina(City) v Laing Property Corporation (1994), (SK CA), [1995] 3 WWR 551 (Sask CA); Estevan Coal Corporation vEstevan (Rural Municipality No. 5), 2000 SKCA 82, [2000] 8 WWR 474; Sasco; and Corman Park.

He summarized the law on this pointas follows: [97] Thus, this Court has consistently found that the Committee fulfils a traditional appellate role. Instead of rehearing a matter, theCommittee reviews the Board’s decision for error. Error has previously been defined as “material error” (see Laing, Estevan Coal,or Sasco). Once such an error is found, the Committee has the remedial power to correct it.

(Emphasis in original) [ 61 ] Having concluded that the assessment appeals committee fulfilled a traditional appellate role, Whitmore J.A. explained why the reasonableness standard of review should apply on an appeal of a board decision on a question of fact or of mixed fact and law: [99] The Committee’s role within the assessment regime supports a deferential standard of review on questions of fact. The Committee is an appellate tribunal charged with hearing and determining appeals. Unlike the Board, it is not a tribunal of first instance. The Board receives evidence and hears witnesses.

The Committee reviews the record of the Board and only hears new evidence in narrow circumstances, not unlike the role of an appellate court. Consequently, it fulfills a traditional appellate role in that it determines appeals on the record. Its function is not to conduct trials de novo , but to review for error and if an error has been found, to correct it. [Emphasis in original] [100] Both tribunals serve specialized roles that have been created by the Legislature.

It is clear that the legislative intent remains that the Committee fulfil an appellate role such that it gives deference to the Board’s findings of fact. [101] Ultimately, based on the Legislature’s intention regarding the role of the Committee, I am of the view the most appropriate standard of review to be applied by the Committee to the Board’s factual findings and to questions of mixed fact and law where there is no extricable question of law, expressed in traditional terms, is reasonableness.

I say this because a standard of palpable and overriding error, the most deferential standard of review and one that applies in the appellate context, would limit the Committee’s role beyond what the Legislature intended. While deference must be afforded to the Board’s findings of fact, the Committee must be empowered to intervene where such findings are unreasonable or unsupported by the evidence.

Expressing the standard of review in this way is consistent with the approach taken by this Court in Redhead . [ 62 ] City Centre did not address the standard of review in relation to questions of law. [ 63 ] The analytical approach adopted in City Centre differs in certain respects from that specified in Newton , the leading Alberta authority pre- Vavilov ; however, it is the same as that described in Dyment and Huruglica .

In Newton , the Court adopted an approach with unique features, which it described as requiring “a consideration of many of the same factors that are discussed in Housen and Dunsmuir / Pushpanathan , adapted to the particular context” (at para 42). It provided a non-exclusive list of the factors that it thought should generally be examined (at para 43): (

a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (

b) the nature of the question in issue; (

c) the

interpretation of the statute as a whole; (

d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (

e) the need to limit the number, length and cost of appeals; (

f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (

g) other factors that are relevant in the particular context. [ 64 ] In Huruglica , the Federal Court of Appeal rejected the Newton approach and emphasized that the only issue is legislative intent: [46] I do not find the decision in Newton particularly useful. I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory

interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory

interpretation requires an analysis of the words of the IRPA read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object (Elmer A. Driedger, Construction of Statutes , 2d ed. (Toronto: Butterworths, 1983)). The textual, contextual and purposive approach mandated by modern statutory

interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD. [47] The principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision-makers (as set out in Dunsmuir at paras. 27-33) have no application here. … [48] With all due respect to the contrary view, it would also be inappropriate to import the considerations set out in Housen , since the adoption of the high level of deference afforded by appellate courts of law to lower courts of law on questions of fact and mixed fact and law was mainly guided by judicial policy: Housen at paras.16-17. [49] When the legislator designs a multilevel administrative framework, it is for the legislator to account for considerations such as how to best use the resources of the executive and whether it is necessary to limit the number, length and cost of administrative appeals. … [50] To be clear, I am not saying that the standard of reasonableness will never apply in appeals to administrative appeal bodies.

In fact, there are examples where the legislator clearly expresses an intention that such a standard be applied: … [51] Rather, what I am saying is that one cannot simply decide that this standard will apply on the basis of one’s own assessment of factors (

e) and (

f) listed in Newton (see paragraphs 10, 15 and 16 above). One must seek instead to give effect to the legislator’s intent . (Emphasis added)

[65] In Smith v Canada (Attorney General), 2021 FCA 73 at paras 47–50, Rivoalen J.A. affirmed that the Huruglica approachremains valid despite the decision in Vavilov. C. The internal standard of review: Analysis 1. The analytical framework and Vavilov [66] The dominant opinion in the post-Vavilov case law and commentary is that the statutory appeal presumption applies only if thelegislation provides for an appeal to a court and not if the statutory appeal is to an administrative tribunal. I am of the same mind. Asothers have stressed, Vavilov relates to judicial review of the merits of administrative decisions.

It instructs that the presumptive standardof review in that context is reasonableness, “an approach meant to ensure that courts intervene in administrative matters only where it istruly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process” (Vavilov at para 13).

Thatpresumption respects the legislature’s choice to delegate decision-making authority to an administrative decision-maker, whilemaintaining the rule of law. [67] However, as the majority explained in Vavilov, this presumption of reasonableness review does not apply in two situations; thatis, when the legislation provides for a different standard and when the rule of law requires that a different standard apply: [17] The presumption of reasonableness review can be rebutted in two types of situations.

The first is where the legislature hasindicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes theapplicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from anadministrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews thedecision.

The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires thatthe standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, generalquestions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two ormore administrative bodies.

The general rule of reasonableness review, when coupled with these limited exceptions, offers acomprehensive approach to determining the applicable standard of review. … (Emphasis added) [68] This reasoning is straightforward. All administrative decisions are subject to judicial review by a superior court on the standardof review required to maintain the rule of law. The presumptive standard is reasonableness. If the legislation provides for an appeal to acourt, that presumption is rebutted by that expression of legislative intent.

Simply put, to provide for an appeal to a court is to provide forappellate oversight and, thus, for the application of the appellate standards of review that define that oversight. In these reasons, I havedescribed this as the statutory appeal presumption. [69] None of this applies to internal appellate review. Administrative decisions are not subject to internal appellate review unless thelegislation provides for such a review.

The presumption of reasonableness review does not apply, as that presumption is rooted in the factthat judicial review is, by definition, review of administrative action by a superior court. Accordingly, the provision for an appeal to anadministrative tribunal cannot be read, in and of itself, as sending a signal to depart from the presumptive standard.

Further, the appellatestandards of review applied by courts, which are shaped in large part by institutional considerations relating to courts, have no parallel incorrelation to internal appellate tribunals. [70] That does not mean that the reasoning in Vavilov as to the external standard of review is irrelevant to the internal standard ofreview analysis. That is so for two reasons. First, Vavilov confirms that the statutory appeal presumption reflects nothing more than theapplication of the general principle that the legislation determines the standard of review, subject only to constitutional limits.

As themajority made clear in Vavilov, this general principle applies equally in determining the standard of review for both judicial review andstatutory appeals to courts: [33] This Court has described respect for legislative intent as the “polar star” of judicial review: C.U.P.E. v. Ontario (Minister ofLabour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149. This description remains apt. The presumption of reasonableness reviewdiscussed above is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers ratherthan the courts.

It follows that this presumption will be rebutted where a legislature has indicated that a different standard should apply.The legislature can do so in two ways. First, it may explicitly prescribe through statute what standard courts should apply when reviewingdecisions of a particular administrative decision maker.

Second, it may direct that derogation from the presumption of reasonablenessreview is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court, thereby signallingthe application of appellate standards. [71] This respect for legislative intent that was central to the reasoning in Vavilov was also the basis for the approach adopted inCity Centre, Moffat and Huruglica. [72] There is a second reason that Vavilov is relevant to the internal standard of review analysis.

As the majority there noted, “[j]ustas a legislature may, within constitutional limits, insulate administrative decisions from judicial interference, it may also choose toestablish a regime ‘which does not exclude the courts but rather makes them part of the enforcement machinery’: Seneca College ofApplied Arts and Technology v. Bhadauria, (SCC), [1981] 2 S.C.R. 181, at p. 195” (at para 36). Here, the Legislature hasdone so, providing for appellate oversight by this Court.

That is as much a part of the decision-making architecture as the provisions forappeals from the development officer to the Board, and from the Board to the PAC, and, for that reason, must be taken into account whenselecting the internal standard of review. [73] In the result, it is my view that selecting the internal standard of review to be applied by the PAC calls for an analysis of thekind carried out in City Centre; that is, “[t]he standard of review should be determined by conducting a full exercise in statutoryinterpretation, which ultimately will answer what respective roles the Legislature intended the Committee and Board to fulfill” (at para59).

That

interpretation must be in accordance with the modern principle codified in s. 2-10(1) of The Legislation Act.

D. Interpreting the legislation [ 74 ] The legislation that is relevant to determining the standard of review to be applied by the PAC to a decision of the Board is the Zoning Bylaw, the PDA , the MDA , and The Public Inquiries Act, 2013 . This legislation provides for three levels of appeal from the development officer, who made the initial decision which resulted in appeals to the Board, the PAC and this Court. I will review the nature and scope of the functions of each of these decision-makers, together with the role of this Court, to determine the role the Legislature intended the PAC to fulfill and, as such, the internal standard of review. 1. Development officer [ 75 ]

Section 49 (

c) of the PDA requires that a zoning bylaw provide for “the appointment of a development officer for the municipality to administer the zoning bylaw”. The Zoning Bylaw was amended in 2017 to define “Development Officer” as “the Director of Development Services or his or her designate” (Chapter 2,

Part 2C). The development officer has various functions. They process applications and issue development permits for permitted uses ( s. 62(2) , PDA ), and for discretionary uses approved by City council on the advice of the Regina Planning Commission (s. 62(3), PDA ). [ 76 ] Development officers are also regulatory compliance officers.

If a development officer determines, based on an inspection, that a development contravenes any provision of the PDA , or any regulation, bylaw or order made pursuant to the PDA , they may issue a written order that describes the contravention and directs the person to whom the order is issued to take steps specified in the order to cure it ( ss. 242(4) –(5), PDA ). It was the exercise of that administrative authority that ultimately resulted in this appeal. There is no statutory requirement to give notice to or hear from the person subject to the order before it is issued. 2. Development Appeals Board [ 77 ]

Section 49 (

j) of the PDA requires that every zoning bylaw establish a development appeals board pursuant to s. 214 of the PDA .

Section 214 provides that the board shall have at least three members, and s. 215 contains provisions that limit appointments of and participation in hearings by certain persons who may be in a conflict of interest. The PDA is otherwise silent as to the qualifications of potential members. [ 78 ] The right to appeal to a development appeals board is granted by s. 219 of the PDA and extends to an alleged misapplication of a zoning bylaw in the issuance of a development permit; a refusal to issue a development permit which would contravene the zoning bylaw; or, as here, a s. 242(4) order.

An appeal is initiated by filing a written notice of appeal summarizing the reasons for the appeal, the facts and the relief sought ( s. 220 , PDA ). A board has the authority to adopt rules of procedure (s. 216(5), PDA ), except to the extent regulations are promulgated by the Lieutenant Governor in Council pursuant to s. 216(6).

No such regulations have been promulgated. [ 79 ] The board must hold a hearing within 30 days of receiving a notice of appeal ( s. 222(1) , PDA ), and must give notice to the appellant, the owner (if different), council, owners of property within 75 metres of the land in question, and other owners specified in the zoning bylaw of the municipality ( s. 222(3) , PDA ). The appellant must file their supporting documents not less than five days before the date of the hearing. The board may require council to transmit documentation in its possession relating to the subject matter of the appeal.

All documents are available for public inspection prior to the hearing ( s. 223 , PDA ). [ 80 ] Board hearings are open to the public, and the board must hear from the parties who were entitled to notice and any other affected person who wishes to be heard. There is provision for the administration of oaths. A written record of the proceedings must be kept, which may be in the form of a

summary of the evidence at the hearing ( s. 224 , PDA ). The Board must render its decision in writing, together with reasons, within 30 days after the conclusion of the hearing ( s. 225(1) , PDA ). [ 81 ] As is noted above, s. 221 of the PDA specifies the substantive rules that govern and thus limit the authority of a development appeals board: 221 In determining an appeal, the board hearing the appeal: (

a) is bound by any official community plan in effect; (

b) must ensure that its decisions conform to the uses of land, intensity of use and density of development in the zoning bylaw; (

c) must ensure that its decisions are consistent with any provincial land use policies and statements of provincial interest; and (

d) may, subject to clauses (

a) to (c), confirm, revoke or vary the approval, decision, any development standard or condition, or order imposed by the approving authority, the council or the development officer, as the case may be, or make or substitute any approval, decision or condition that it considers advisable if, in its opinion, the action would not: (

i) grant to the applicant a special privilege inconsistent with the restrictions on the neighbouring properties in the same zoning district; (ii) amount to a relaxation so as to defeat the intent of the zoning bylaw; or (iii) injuriously affect the neighbouring properties. 3. Planning Appeals Committee of the Saskatchewan Municipal Board [ 82 ] Appeals from a development appeals board are to the SMB, an administrative tribunal that exercises a broad range of regulatory and appellate functions relating to municipalities and other local authorities.

SMB members are appointed by the Lieutenant Governor in Council and must have the combination of education, experience and capacity specified in the MBA and the Board Regulations . Full-time members are required to devote their full-time to the performance of their duties assigned by the MBA and other

legislation. [ 83 ] The qualifications specified by the Board Regulations reflect the nature and breadth of the SMB’s functions.

Qualified appointees include, for example, holders of a rural or urban municipal administrator’s certificate, members in good standing of various professions (such as the Law Society of Saskatchewan, the Saskatchewan Assessment Appraisers’ Association, and the Association of Professional Engineers and Geoscientists of Saskatchewan), members in good standing in an accounting profession recognized by Saskatchewan legislation, and holders of a certificate, diploma or degree from a post-secondary educational institution acceptable to the Lieutenant Governor in Council in a field of study that is relevant to some or all of the matters within the board’s jurisdiction.

All SMB members must also have the following qualifications: 3(b) … experience in conducting public hearings, appeals or meetings that involve hearing submissions from local authorities and the public; and (

c) in the opinion of the Lieutenant Governor in Council, have: (

i) an ability to analyse issues, to impartially consider arguments and to write decisions; (ii) good communication and interpersonal skills; (iii) a familiarity with the board’s jurisdiction and with the relationship of the board to local authorities and to the Government of Saskatchewan; and (iv) technical or substantive knowledge and experience that will assist the board in determining matters within its jurisdiction. [ 84 ] The SMB is authorized to hear appeals under many statutes. The PAC hears planning and development appeals pursuant to the five statutes specified in s. 17 of the MBA .

The assessment appeals committee hears tax appeals relating to assessments, property tax exemptions and secondary audits of assessments pursuant to the eight statutes specified in s. 16, which as noted above include The Cities Act , The Conservation and Development Act , RSS 1978, c C-27 , The Municipalities Act , and The Northern Municipalities Act, 2010 .

The SMB also hears appeals relating to orders and decisions made pursuant to The Fire Safety Act , SS 2015, c F-15.11 , s 18.1, and The Weed Control Act , SS 2010, c W-11.1 , s 18.3. [ 85 ] The SMB also has other regulatory functions relating to local authorities, including, for example, financial supervision, management of sinking funds, and approval of applications by local authorities to commence local improvements and to raise money by way of a long-term security. The SMB may recommend the removal of a municipal council or board of education and the appointment of an administrator.

Section 15 provides that the SMB “may, of its own motion, and shall on the request of the Lieutenant Governor in Council, inquire into, hear and determine any matter or thing within its jurisdiction”. [ 86 ] As to planning and development appeals, s. 226 of the PDA provides that the minister, the council, the appellant or any other person may file a notice of appeal of a decision of a development appeals board with the SMB. A notice of appeal must specify the grounds of appeal.

The SMB – here, for the reasons explained above, the PAC – may dismiss the appeal or make any decision that the development appeals board could have made (s. 226(3)). [ 87 ] On receipt of a notice of appeal, the secretary of the SMB notifies the development appeals board and every party to the appeal other than the appellant (s. 227(1)).

The development appeals board is obliged to send its notice of appeal, supporting materials provided prior to or entered at the board hearing, a copy of the written record of proceedings, and a copy of the written decision to the SMB (s. 227(2)). [ 88 ] The MBA contains provisions relating to the substantive and procedural jurisdiction of the SMB, including the following: 13(4) The board may make rules prescribing rules governing the management and conduct of its affairs and the conduct of the meetings, hearings, inquiries and any other proceedings of the board and its committees and respecting forms, applications and other documents required and procedures to be followed in the conduct of its affairs. … 20(1) The board has authority to hear and determine any question of fact or law as to matters within its jurisdiction. …

(7) In any hearing, appeal, investigation or other proceeding before the board, the board is not bound by the technical rules of legal evidence.

(8) The board may, in its discretion, accept and act on evidence by affidavit or written statement or by the report of a member of the board, other person or technical adviser appointed by it or obtained in any other manner that it may decide, provided that for an appeal those documents are provided at the hearing to both appellant and respondent.

(9) The members of the board have all the powers conferred on a commission by sections 11 , 15 and 25 of The Public Inquiries Act, 2013 with respect to any hearing, inquiry or other proceeding before the board. …

(12) Notwithstanding subsection (11), hearings of the board and any committee of the board relating to any appeals shall be open to the public, unless the board or any committee of the board determines that a matter should be heard in the absence of the public. [ 89 ] However, the fact that the SMB has these broad substantive and procedural powers does not mean an appeal to the SMB is de

novo . As in the case of the assessment appeals committee considered in City Centre , the SMB has limited authority to allow new evidence on an appeal from a development appeals board.

Section 227.1 of the PDA states: 227.1(1) The Saskatchewan Municipal Board shall not allow new evidence to be called on appeal unless it is satisfied that: (

a) through no fault of the person seeking to call the new evidence, the supporting materials and written record of proceedings mentioned in clauses 227(2)(

b) and (

d) are incomplete, unclear or do not exist; (

b) the board has omitted, neglected or refused to hear or decide an appeal; or (

c) the person seeking to call the new evidence has established that relevant information has come to the person’s attention and that the information was not obtainable or discoverable by the person through the exercise of due diligence at the time of the board hearing.

(2) If the Saskatchewan Municipal Board allows new evidence to be called pursuant to subsection (1), it may use any power or authority vested in it pursuant to The Municipal Board Act to seek and obtain further information. 4. Court of Appeal [ 90 ] The final piece of the decision-making puzzle is the provision for an appeal to this Court from a decision of the PAC.

Section 33.1 of the MBA provides that any person affected by an order, decision or determination of the SMB may appeal to the Court of Appeal on a question of law or concerning the jurisdiction of the SMB, with leave of a judge of the Court of Appeal. An order granting leave must state the grounds of appeal. 5.

What is the internal standard of review to be applied by the PAC? [ 91 ] I would first note that the decision-making structure in relation to planning and development appeals is, for the purposes of the standard of review analysis, substantially the same as the assessment appeal process considered in City Centre . To paraphrase City Centre , the PAC, unlike the Board, is not a tribunal of first instance. The Board receives evidence and hears witnesses. It creates the record. The PAC, on the other hand, decides on the basis of that record and hears new evidence only in narrow circumstances.

Its function is not to conduct hearings de novo , but to review for error . If an error is found, it may correct it, by confirming, revoking or varying the decision – including a decision of a development officer – and, within the limits specified in s. 221 of the PDA , may make the decision it considers advisable. [ 92 ] Just as Whitmore J.A. found in City Centre that this appellate structure meant that the assessment appeals committee has a traditional appellate function, I reach the same conclusion in relation to the PAC. This

interpretation is consistent not only with the nature of Board and PAC appeals, but with the purpose of the SMB as a whole. That purpose is to maintain and promote, both directly and through recommendations to the Minister, good governance in accordance with the rule of law by a large number and variety of local authorities, in relation to the important matters specified in the MBA . The creation of consistent jurisprudence by SMB committees, populated by appropriately qualified members and supported by the permanent administration provided for by the MBA , is one of the mechanisms that advances that purpose. This

interpretation accords with s. 2 - 10(2) of The Legislation Act : 2-10(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that best ensures the attainment of its objects. [ 93 ] The creation of a consistent body of law, in turn, calls for an internal standard of review relating to questions of law of correctness. So too does the existence of an appeal on questions of law or jur

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