St. Mary’s Cement Inc (Canada) v Clarington (Municipality), 2012 ONCA 884

In this case, the Ontario Court of Appeal considered whether substituting alternative fuel for a traditional fuel source at a cement manufacturing plant would give rise to a new land use. St. Mary’s Cement Inc. (SMC) proposed to substitute alternative fuel recovered from post-recycling and post-composting materials, for the use of petcoke at its cement manufacturing plant in Clarington. The Municipality submitted that this would give rise to a new land use, that is, use of the site as a “waste disposal area” which is not permitted under the by-law. Winkler C.J.O held that the fuel substitution would not give rise to a new land use.

The Court concluded that the alternative fuel falls within the definition of “waste”, however the proposed plan does not constitute a “waste disposal area” within the meaning of the by-law. The by-law defines “waste disposal area” as “a place where garbage, refuse or domestic or industrial waste is dumped, destroyed, or stored in suitable containers.” The Court rejected the argument that the waste is “destroyed” when it is burned as fuel, stating, “SMC’s use of the alternative fuel would not be considered ‘destruction of waste’, just as the use of petcoke fuel would not be characterized as the destruction of petcoke. In both cases, fuel is being used productively as part of the permitted use – the manufacturing of cement.” The Court concluded that the by-law does not bar SMC’s alternative fuel use.

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Rebecca Crangle

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Davis v. Guelph, 2011 ONCA 761

In Davis v. Guelph, the Ontario Court of Appeal clarified the definition of a “room or place actually being used as a dwelling” for the purposes of the Municipal Act and the Building Code Act. The Court held that the term means "a building, room or physical structure that is actually being occupied and used as a residence or live-in accommodation", and that a backyard swimming pool did not meet this definition. The Court also held that the appropriate test for bias in a situation where a municipal officer issues a repair order or bylaw compliance order is a "loose" version of the reasonable apprehension of bias standard.

Under the Municipal Act and the Building Code Act, municipalities may pass by-laws permitting their officials to enter property for purposes of inspection without consent and without a warrant, excluding any “room or place actually being used as a dwelling.” Blair J. pointed out that there is no definition of "dwelling" in any Ontario legislation, but looked to legislation from other provinces and definitions of similar terms in Ontario legislation to conclude that the term refers to a room or place being used as living space. Stating that there is a distinction between a private dwelling and a person's backyard on the basis that there is a significantly reduced expectation of privacy in the latter, Blair J. reasoned that a backyard swimming pool does not fall within the definition of "room or place actually being used as a dwelling" under the relevant legislation.

Blair J.A. also noted that the appropriate test for bias in a situation where a municipal officer issues a repair order or bylaw compliance order had not yet been determined in previous caselaw. He reasoned that such decisions were closer to "enforcement" than to "adjudicative" decisions on the spectrum between the two categories. He nonetheless concluded that the reasonable apprehension of bias standard, rather than the "closed mind" test, should apply, but that the test should not to be applied in its strictest form.

December 6, 2011
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Rebecca Crangle & Kai Sheffield
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Town of Gander v. Gander International, 2011 NLCA 65

The Supreme Court of Newfoundland and Labrador Court of Appeal held that s.17 of the Assessment Act, RSNL 1990, c. C-44 [the “Act”], required the municipal assessor to take into account the special lease restrictions imposed on the Gander International Airport Authority [the “Authority”] when assessing the Gander International Airport [the “Airport”] for taxation purposes. Section 17(1) of the Act mandates an assessor to assess property at its fair market value.

Justice Welsh first dealt with a gap in s.44(2) of the Act, holding that a review of the assessment review commission’s decision should “proceed by way of inquiry into the matter anew,” rather than by way of judicial review of the commission’s decision [9]. The Authority leased the Airport from the federal government in 2001. The lease contains severe lease restrictions, requiring the Authority to operate an airport that, in 2001, “was not financially or economically viable”. Where the Crown leases property to a tenant, s.13 of the Act requires the property to be assessed as if the tenant were the owner. This, according to the majority, meant that the lease restrictions must be accounted for when determining “fair market value” under s.17.  The court went on to hold that the proper approach to determining fair market value is to first identify the market, even if it is a hypothetical one, and then to consider the proper method of valuation. In identifying the market for a public amenity under strict restrictions, the court held that in addition to the lease restrictions, the fact that public utilities are often exempt from taxation, due to their social utility and limited revenue generating abilities, should be taken into consideration. Ultimately, the court held that where no alternate use is possible, a willing buyer in an open market would not offer more than a nominal amount.

Dissenting, Justice Barry cautions that the majority decision “risks creating doubt regarding the established approach to valuation for assessment purposes, which recognizes that a tenant’s interest must be valued as though the tenant were the owner.” Accordingly, the land in this case should have been valued, “not as a mere interest under a restrictive ground lease but as an interest in fee simple”. The government is entitled to take possession of the property in the event that the Authority defaults. In this situation, the property would have value to a subsequent entity mandated to operate a major international airport at Gander. Therefore, the hypothetical market, though limited, exists. Furthermore, Justice Barry felt that the obligation to continue the operation of an airport distinguished this case from the public amenity cases.

October 4, 2011
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Steve Holinski & Katerina Svozilkova
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Christensen v. Calgary (City), 2011 ABCA 244

In Christensen v. Calgary (City), the Alberta Court of Appeal considered the standard of care under the Occupiers’ Liability Act, R.S.A. 2000, c. O-4 for public in-line skating paths. Berger J.A., writing for the majority, noted that there were no established standards for constructing in-line skating paths and instead stated that the question was whether the plaintiffs had established on a balance of probabilities that, but for the wrongful actions of the appellant, the respondents’ injuries would not have occurred. McDonald J.A., writing in dissent, held that the trial judge failed to articulate a standard of care and that Berger J.A. made the same error as the trial judge and effectively reversed the onus of proof.

At trial, the City of Calgary was found liable when two in-line skaters injured themselves while using a city maintained pathway on public land. The City appealed, arguing that the plaintiffs failed to lead evidence on the standard of care to which the city should be held, and that the standard of care was not articulated by the trial judge as would have been required by Fullowka v. Royal Oak Ventures Inc., a 2010 case. However, Berger J.A. distinguished Fullowka on the basis that the trial judge did not impose an absolute duty upon the city, and instead outlined steps which the city failed to take to ensure that the pathway was safe. These included consulting with the in-line skating community, reasonably considering the needs of in-line skaters, researching relevant guidelines or formulating new ones if none exist, and placing adequate signage to inform users of risks. Justice Berger deferred to the trial judge’s findings of fact that the city failed to maintain the pathway in a reasonable and safe condition for in-line skaters.

In Justice McDonald's dissenting opinion, the majority approach established a reverse onus, requiring the defendant to prove that it was not liable. In addition, he agreed with the appellants' assertion that the trial judge failed to describe a standard to which the city should be held in constructing the path. McDonald J.A held that the steps described by the trial judge amounted to "little more than a wish list and do not constitute a properly articulated standard of care." He found that the absence of established standards should not prevent the trial judge from articulating a standard of care.

August 19, 2011
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Marc Gibson, Heather Palin & Dominik Swierad
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Greater Vancouver Regional District v. British Columbia (Attorney), 2011 BCCA 345

In Greater Vancouver Regional District v. British Columbia, the British Columbia Court of Appeal clarified the interpretation of s.3(c) of the Local Government Act, R.S.B.C. The issue arose in the context of challenge brought by the Greater Vancouver Regional District ("GVRD") that the Musqueam Reconciliation, Settlement and Benefits Agreement Implementation Act ("Reconciliation Act") was ultra vires the British Columbia Legislature. Dismissing the appeal, Justice Newbury held for the court that s.3(c) does not create obligations for the Province of British Columbia nor a right for the GVRD for notice to be given.

"Block F" and "Block K" ("Park Lands") were sold to the GVRD by the Province in 1989 subject to the condition that it was without prejudice to the Musqueam claim over the lands. In 2008, a "Settlement Agreement" was reached in which the Park Lands were transferred to two companies designated by the Musqueam in exchange for the settlement of certain claims. The Reconciliation Act that then came into force provided that all claims the GVRD had were extinguished. In challenging the constitutionality of the Reconciliation Act, the GVRD claimed that the Province violated s. 3 of the Local Government Act in transferring the lands due to inadequate notice to them.

Newbury J. held that s.3 (c) only stated the "aspirational principle" that there should be notice for actions affecting regional interest such as that of the GVRD's, and should be treated like language in the preamble of a statute. Since the section does not state that the Province would necessarily provide such notification, it does not constitute a "manner and form" restraint on the Province's authority to enact new legislation, and therefore neither a legal obligation on the Province nor a right for GVRD was created. GVRD was denied the declaratory relief it sought and the appeal was dismissed.

August 15, 2011
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Adrienne Ho
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R. v. K.P., 2011 ABCA 233

In R v. K.P., the Alberta Court of Appeal ruled on the validity of a City of Calgary bylaw mandating minimum fines for both adult and young offenders. Justice Rowbotham held that the mandatory minimum fine provisions are inconsistent with the Youth Justice Act ("YJA") as s. 15(5) of that Act dictates that community service and/or probation may be imposed instead of a fine where appropriate.

The issue arose in the context of a 13 year old whom, after being caught applying graffiti to various buildings, was given the mandatory minimum fine of $500. The Court of Queen’s Bench upon appeal ruled that the YJA “completely and exhaustively occupied the legislative field” so there was no room for Calgary City to council to impose a mandatory minimum fine. Justice Rowbatham came to the same conclusion. The appeal was dismissed and the case remitted to the youth court judge for sentencing according to the YJA sentencing scheme.

July 29, 2011
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Sam Golder & Dominik Swierad
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Cronauer v. Grande Prairie (Subdivision and Development Appeal Board), 2011 ABCA 164

The appellant, Cronauer, is appealing for the ability to erect three billboards close to a highway in Alberta. The Subdivision and Development Appeal Board (SDAB) allowed the erection of billboards, but subject to the condition that the appellant apply for a permit from Alberta Transportation. Alberta Transportation does not give such permits, and evidence was before the SDAB to this effect. The primary issue on appeal is whether 3.13(g) and 3.18(d) of the Land Use Bylaw, (the “Bylaw”) of the County of Grande Prairie No. 1 permitted the SDAB to impose the condition. Both subsections state that “A permit from Alberta Transportation may be required.”

The appellant argued that these statements were only informative, and did not give the SDAB the discretion to impose these conditions. However, the Court determined otherwise, based on Driedger’s interpretation of law: “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” The Court determined that based on the Municipal Government Act (“the MGA”), under which the Bylaw was enacted, and based on the purpose of the law as stated in s. 2 of the Bylaw, the two subsections indeed give the SDAB the authority to impose the condition of obtaining a permit from Alberta Transportation, even if such a permit doesn’t exist.

May 30, 2011
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Mike Kholodenko & Mary Phan