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Court of Queen?s Bench of Alberta

 

 

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Citation: Grunmn Canmore (Town), 2013 ABQB 507

Date:
Docket: 160] 01690
Registry: Calgary

Between:
Mark W. Gruman

Applicant
- and 

The Town of Canmorc

Respondent

 

Reasons for Decision
ofthc
Honourable Mr. Justice M. David Gates

 

I .. Introduction and Overview

The rezoning of part of the Peaks of Grassi area (the ?Lands?) located in Canmore is a
matter of interest. to many citizens of Camnore, as evidenced by the number of people who
attended the hearing of this Court application on March 14, 2017. The rezoning may lead to an
increase in residential units being built in an area where it is not previously permitted. The strong
Opposition to the rezoning expressed by certain Citizens, notably the Applicant, is not, however,
suf?cient to grant the application. In this matter, I need to determine if the amendment to the
zoning bylaw, approved by a majority of the Town of Canmore Council, is invalid.

This is a judicial review application relating to a Canmore rezoning bylaw that is
applicable to the Lands which consists of three lots. The Applicant, Mark W. Gruman, is
opposed to the rezoning and seeks an order invalidating Bylaw 20} 5?19, Peaks qurassz? Direct
C(mrrol District (the ?Grassi Bylaw Amendment?) enacted by the Town of Canmore
(?Town? Prior to the amendment, the lands were zoned as Urban Reserve. The

 

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third lot (?Site is adjacent to an environmental reserve. The Applicant is one of the owners
of land adjacent to the lands sought to be rezoned and he lives in the neighbourhood where the
lands are located.

The issue in this case is whether the Grassi Bylaw Amendment is invalid for reasons of
tim'casonableness or lack of procedural fairness in the process leading up to its passage. During
oral submissions, Counsel for the Applicant specified that his main concerns relate to the
procedural defaults. 

The Applicant questions the nature, appropriateness, accuracy and completeness of the
information given by the Town?s administrative employees (?Administration") to Council when
the majority voted in favour of the Grassi Bylaw Amendment. Specifically, the Applicant
submits that the Town Administration misinformed or misled Council with reapect to the ?ood
risk analysis, the screening reports, as well. as the environmental impact statement
which led to a breach of the Applicant?s right to procedural fairness as well as rendered
Council?s decision unreasonable.

The Applicant also questions whether Council complied with the prescribed procedure
mandated by the legislative scheme. First, he submits that Council considered input following
the public hearing, thereby violating Council?s procedural bylaw. Second, he submits that the
Town ofCanmore failed toineet the Municipal Development Plan mandatory
requirements for an independent, and professional third party review of the BIS.

The Town of Canrnore?s position is that the Grassi Bylaw Amendment should be upheld,
because the procedure that was adopted met the applicable standard of procedural fairness and
involved no breaches of administrative law principles.

This application for judicial review of the Grassi Bylaw Amendment was heard by me on.
March 14, 2017. At the conclusion of oral argument, the parties were invited to ?le
supplementary written arguments on the question relating to the EIS. The Town filed
supplemental written submissions on March 21, 2017, while the Applicant tiled supplemental
written submissions on March 29, 2017.

Before 1 determine the issues as to whether there was a breach of procedural fairness and
whether Council?s decision was reasonable, will ?rst briefly review the procedural history of
this case. Second, I will review the facts that are relevant to all issues raised in this Application,
and third, I will determine the applicable standards of review. 1 will then turn to each issue
raised by the Applicant.

These are my reasons for decision.

II. History of the Proceedings

[l 0] The Originating Application was ?led on February 26, 2016, following a decision made
by the Council on January 19, 2016, to change the zoning of the lands from Urban Reserve
District to DC-Direct Control District, PD?Public Use District, and R1 B?Rcsidential Single-w-
Family Detached Plus District. This change permits different types of development uses to be
considered on. the Lands in the future, including the development of residential units which use
was not permitted, and could not be considered, under the Urban Reserve District designation.

 

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[1 l] The Amended Originating Application (?the Amended Application?) was ?led on March
17, 2016. The Amended Application added four new grounds for relief in addition to those
advanced in the Originating Application.

[12] On March 31, 2016, McCarthy .1. granted an initial interim stay. On July 21, 2016,
Rawlins J. heard an application for an extension of the interim stay of the operation of Grassi
Bylaw Amendment as well as a cross?application brought by Canmore to strike the Amended
Application on the basis that the Applicant could not show a triable issue. On August 12, 2016,
Rawlins granted the stay pending the judicial review application. At the same time, she struck
four of the grounds of requested relief. On December 7, 2016, the Court of Appeal restored the
four grounds lot-judicial review previously struck by Rawlins .l .1 2016 ABCA 392.

Facts

[13] The Lands form part of the Peaks ol" Grassi neighbourhood and consist of 44.99 acres
excepting two parcels of 21 .2 and 19.79 acres (subdivision numbers 971 1290 and 98 3573),
respectively. The Lands include three lots: Site 1 (the most westerly parcel), Site 2 and Site 3
(the East parcel).

[14] The Lands were purchased by 1.861523 Alberta Ltd, l'lillcrol?t Developments Ltd. and
1457115 Ontario Limited (?the Developer") on March 11, 2015. The Lands consist of an
undevelOped mixed coniferous forest with a limestone outcrop in one area and were designated
Urban Reserve prior to the March 2015 purchase.

5] The purpose of the ?Urban Reserve" is protect land that is potentially suited for
urban uses from premature subdivision and development?: Tom-1 ofCam-nore Land Use Bylaw
22-2010, 8 2.61.1. Urban Reserve lands receive preliminary screening only and may require
environmental, geotechnical and other screening in order to determine their potential suitability
for any development: Town ofCanmore Land Use Bylai-v 22?2010, 3 2.61.1.

[16] The permitted uses and discretionary uses of an urban reserve are enumerated under
2.61.2. and 2.61.3 of the Town QfCai-nnore Land Use Bylaw 222010 as follows: public utilities,
campgrounds, cemeteries, cultural establishments, extensive agricultural pursuits, intensive
agricultural pursuits, kennels, outdoor athletic and recreational activities, parks and playgrounds,
public and quasi-public buildings and uses and signs. In other words, under the Urban Reserve
zoning, the Lands could have been developed, although only in accordance with the permitted or
discretionary uses specified under 2.61.2 and 2.61.3.

[l 7] In 1998, the Totvn of Camnore and the prior owners of the Lands entered a non?legally
binding Settlement Agreement according to which building within the Peaks of Grassi
neighbourhood was capped at 45 acresgvith residential units not to exceed 404: Af?davit of Mr.
Ciruman, ?led February 26, 2016, tab 3 at para 4.1.

[18] In 2014, the Developer sought to rezone the Lands from Urban Reserve to Direct Control
and Public Use District which would have permitted the development of residential units. This
type of development was not permitted under the Urban Reserve designation. This first
application to rezone a part ol?the Peaks of Grassi, which is not at issue in the Application before
this Court, was rejected by Council in February 2015.

A second bylaw application, the subject of this Application, was submitted on August 25,
2015. it included a proposal to allow for affordable housing to be built perpetually affordable

 

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housing ?PAl?l?) and market affordable housing. The application was considered by Council
and given a first reading. It was then set down for a Public Hearing in accordance with section
230 of the Municipal Government Act, RSA 2000, M-26 (as it react at that time). The
Public I?learing was held on November 24, 2015, and adjourned at the close of the hearing. It is
not disputed that the majority of the submissions made by members of the public opposed the
application for rezoning.

[20] Following the conclusion of the Public Hearing, the Developer and the Canmore
Community Housing Corporation a corporation with 100% of its shares owned by
the Town of Canniore, worked on several draft. agreements speci?cally contemplating
perpetually affordable housing on Site 1. On January 19, 2016, entered into a purchase
and option agreement with the Developer Agreement"). I. note that mandate
includes the provision of perpetually affordable housing.

[21] On January 19, .2016, Town Council approved the second bylaw application, the Grassi
Bylaw Amendment, for a re-designation of the Lands, effectively opening them up for residential
development. The Applicant now seeks an order invalidating the bylaw resulting from the second
bylaw application the Grassi Bylaw Amendment.

1V. Standard of Review

[22] The Applicant submits that the standard of review for questions of procedural fairness is
correctness. The Applicant also says that the decision of a municipal council is rcviewable on a
reasonableness standard.

[23] The Town agrees with these standards, but adds that the reasonableness of municipal
bylaws must be assessed in the context of the particular type of decision-making involved in this
case, and all other relevant factors. Citing Catalyst Paper Corp North Cowieiimi (District),
[2012] 1 SCR 5, the Town argues that bylaws are not quasi-judicial decisions, but rather are
legislative (as opposed to adjudicative) in nature.

[24] The applicable standard of review with respect to issues ofprocedural fairness is
correctness: see, for example, Eagles Nest. Your]: Ranch Inc Corinna Pork (Rum!
Municipality #344), 2016 SKCA 20 at paras 20-25. The content of the duty varies according to
the following ?ve factors:

a) the nature of the decision and the decision making process employed in making it;

b) the nature ofthe statutory scheme and the precise statutory provisions pursuant to
which the public body operates;

c) the importance of the decision to the individuals affected;
d) the legitimate espectations of the party challenging the decision; and
e) the nature of the deference accorded to the body.

See Baker Canada (tittinisfer of Citizenship and [1999] 2 SCR 817 at
paras 21 ff. See also Cannibal! Edmonton (Clint), 2014 ABQB 742.

[25] in this case the Town argues that it was required to afford a low to a moderate degree of
procedural fairness. The Applicant argues that a high degree of procedural fairness must be
afforded.

 

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[26] As more fully explained below, i ?nd the Town was required to afford a moderate
amount procedural fairness.

[27] A municipal council?s decision is generally reviewable on the reasonableness standard:
Catalyst Paper Carp. at paras 18-20. The test is, as stated in Catniysr? Paper Cm?p. at paras 24
and 36, that. a bylaw will be set aside only if the bylaw is one that no reasonable body could have
adopted. The reasonableness standard is a ?exible standard that varies in light of the context and
nature of the challenged aclt?ninistrative act: at para 23. McLaChlin CJC, as she then was, writing
For the Court explains at para 25 how this standard restricts municipal councils:

Reasonableness limits municipal councils in the sense that the substance of their
bylaws must conform to the rationale of the statutory regime set up by the
legislature. The range of reasonable outcomes is thus circumscribed by the
purview of the legislative scheme that empowers a municipality to pass a bylaw.

[28] Section 539 of the MGA provides that ?[nlo bylaw may be challenged on the ground that
it is unreasonable?, which has been interpreted in some cases as equating to a higher level than
that of reasonableness. For example, in Nor Chris Holdings Inc. Sturgeon County, 2013
ABQB 134, the Court held that a municipal council?s decision is reviewable on the standard of
?patent umeasonableness?.

[29] According to the Applicant, this provision does not forcelosejudicial review of municipal
decisions. 

[30] In my View, the standard of reasonableness applicable in this case must be informed by
the wording provided under s. 539, and interpreted in light of the context ol?the particular type of
decision?making involved here, as well as all other relevant factors.

V. Issues
[31] The issues for consideration in this case are as follows:

A. i. Was there a violation of section 12.7 of the Town ot?Canmore Procedure!

ii. If so, did it result in a breach ofthe Applicant?s right to procedural
Fairness?
B. i. Did the Town Administration mislead or otherwise misinl?orm Council as to the
Flood Risk Analysis?
ii. It?so, did it lead to a failure ofConncil to properly consider that risk in determining
that the subject parcel was suitable for development?
If so, did it result in a breach ol?the Applicant?s right to procedural fairness?

i. Did the Town Administration mislead or otherwise misint?orm Council as to the
geotechnical screening reports in regards to building on the rock outcrop (Site 
ii. If so, did it result in a breach of the Applicant?s right to procedural fairness?

.0

D. i. Did the Town Administration mislead or otherwise misinform Council as to the
need for a third party in the determination that the subject parcel was suitable for
development?

 

 

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ii. If so, was the failure to provide such a statement. result in a breach of the
Applicant?s right to procedural fairness?

E. Was Council?s decision unreasonable because it considered what was to be built on
the subject lands rather than the land?s suitability for development"?

.P. Was Council?s decision unreasonable because it was based on incomplete, inaccurate
and faulty evidence with respect to flood risk, geotechnical screening and
environmental screening?

[32] During oral submissions, the Applicant speci?cally abandoned the issues raised in his
Amended Application with reSpeet to the alleged reasonable apprehension of bias, as well as
issues related to the Water Act, RSA 20001 W-3.

[33] I will. now turn to each issue.

VI. Analysis
A. Section 12.7 ofthe Town of Canmorc Procedural Bylaw

[34] Section l2.7 of the Procedural Bylaw 04-2013, amended June 17, 2015, provides that
?Council shall not discuss or consider any input from the applicant or members of the public
regarding a matter under consideration that is received after the adjoununent of the public
hearing held to hear that matter."

[35} The Applicant says that there was a violation of the Procedural Bylm-r in this case,
because Council received information relevant to the affordable housing consideration from the
Developer before the final vote on the Grassi Bylaw Amendment, but after the Public Hearing.
The Applicant contends that the violation. resulted in a breach ol?his right to procedural fairness.
More specifically, the Applicant maintains that, following the adjournment of the Public
Hearing, Councillor McCallum, who also chairs the CCHC, met. with the Developer. According
to the Applicant, Councillor McCalltun wrote to the CCHC Board of Directors to petition the
Board, on behalf of the Developer, to enter into an agreement relating, to the Peaks olt?Gr-assi. The
Applicant?s argument is that, as a result of meetings and negotiations between and the
Developer, the parties entered into the CCHC Agreement. Moreover, the Applicant describes as
significant the fact that Councillor McCallum executed the agreement on behalf of and
that the Mayor of Caninore, John Bon?owman, is also a member of the Board.

[36] The Applicant argues that the Developer was not permitted to provide private incentives
to councillors to vote in favour of the Grassi Bylaw Amendment given the ?tremendous negative
feedback? that was heard at the Public Hearing. Further, the public had no opportunity to provide
input on the content of the CCHC Agreement at the Public Hearing, or at any point. thereafter. In
the Applicant?s view, the violation of s. 12.7 of the Procedural is especially egregious
because of the blatant way in which the CCHC Agreement was utilized to promote the Grassi
Bylaw Amendment.

[3 7] The Town argues that there is no evidence that any discussions occurred between any
member of Council qua councillor and the Developer. it adds that the evidence indicates that
several drafts of the CCHC. Agreement were circulated between legal counsel at the direction of
Town Administration before being presented to the CCHC Board, but that nothing indicates that

 

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Councillor McCallum had any involvement in the negotiations or had a meeting with the
Developer related to the CCHC Agreement, whether as a Chair or as a Councillor.

[38] The CCHC Agreement was signed after the Public l-learing. It was presented to Council
prior to the third reading of the Grassi Bylaw Amendment. During the January 19, 2016 meeting,
Council was to ?rst consider the Grassi Bylaw Amendment, followed by the Agreement
between the Developer and the CCHC. In fact, after the Agreement was signed, the
agenda for the meeting was altered so that a Town of Canmore Brie?ng on the Agreement was
addressed first, followed by the consideration of the Grassi Bylaw Amendment.

[39] The Agreement included the option that if the perpetually affordable housing units
are not under construction by a specific date, the CCHC had the option to acquire Site 1 for a
nominal price. The possibility that perpetually affordable housing would never be built was a
concern that was raised at the Public Hearing: see for example Record of Respondent at 496,
642, 647, 667, 685, 774, 777, 826 and 859.

[40] In his affidavit, Steven I?Irudey, co-owner of a home in the Peaks of Grassi
neighbourhood, and President of the Peaks of Grassi Community Association, states that there
was a meeting after the Public Hearing between the CCHC and the Developer regarding public
affordable housing. He contends that this discussion or input violates s. 12.9 of the Procedural
Bylaw-v. He also refers to meetings and to ?Confidential Briefing? notes to the Board of
Directors in support of a proposed agreement and which preceded the CCHC Agreement
as defined above.

[41] I note that the af?ant, Mr. I-lrudey, was not at the alleged meetings and has no personal
knowledge that these meetings occurred, let alone what was discussed at the meetings. The notes
were posted on the CCHC website and were available for public download despite their
?con?dential.? designation.

[42] In the CCHC Confidential Brie?ng dated January 14, 2016, the authors, Mr. Sorllcet and
Ms. McCallum (Chair) explain why an agreement was important in the circumstances:

What is the rush?

in order to provide some certainty to Council that if the bylaw amendment is
approved the PAH [perpetually housing] units would be built, the
desire is to have this offer and option executed prior to Council considering third
reading of the Peaks landing bylaw amendment. The reason for this is that ifthe
lands were zoned already and such an agreement and option were not in place, the
deveIOpers would be able to renege on their commitment to provide 7 PAH units.

[43] Counsel for the Applicant acknowledged during oral submissions that the question as to
whether Council can receive information from a party after a public hearing on an informal basis
has been considered in the common law context and found to not necessarily create an unfair
process: Atkins Calgary (Ciao (1994), 162 AR 97 (CA) at para 14. [n this instance, he
contends that ifaffordablc housing was thought to be a desirable goal, the fact that more
in that regard was received after the public hearing is inconsistent with s. 12.7 in that
there should be no discussions behind closed doors where public input and scrutiny is precluded.

[44] 1 am not persuaded that the Agreement is input from the Developer. Rather, it is
properly characterized as reassurance from the Developer of its commitment to perpetually
affordable housing. The reassurance was given because the application contemplated affordable

 

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housing, despite the fact that it was a rezoning application and not a development application. As
picviously noted, this Issue was speci?cally raised at the Public Hearing. Indeed, the Applicant
questioned whether the Developer would even proceed with the ptomised peipetually affordable
housing. The Applicant had the 1ight to be heatd and was in tact hea1d at the Public Hearing. In
the circumstances oli?this case, the CCHC Agreement is not. input under s. 12.7; it was not a new
issue and it addressed one of the concerns speci?cally raised at the Public Hearing as to how the
creation of the perpetually affordable housing would actually be ensured or promoted.

[45] Even if I am wrong and the Agreement is input under s. 12.7, there is no evidence
of prejudice arising From the violation of s. l2.7 in this instance given that the purpose of the
Agreement. was to ensure that the concerns raised at the Public Hearing were addressed.

[46] In the Court of Appeal addressed the issue of prejudice in the following terms,
at para 41:

With regard to prejudice, our Court of Appeal in Keefe at para 29 stated as

follows:

Absent an express statutory statement, no procedural defect should
vitiate a proceedings [sic] unless a real possibility of prejudice can
be shown or unless the procedure Followed is so devoid o'lithe
appearance of Fairness that the administration ofjustice would be
brought into disrepute: Bridgeicmd Riverside 
Association v. Calgary (1982), 37 AR. 26 at para. 28 (C.A.).

[47] It follows, in 111 view, that the Grassi Bylaw Amendment should not be invalidated on
this ground in any event.

[48] The purpose oi the CCIIC Agreement was to add1ess the concerns already raised. at the
Public Hearing (See, for example, PSI) Enterprises Lida/itchr Westminster(Crt1) 2012 BCCA
319. In fact, had the IC Agreement been entered after the approval of the Grassi Bylaw
Amendment, there would have been no at guablc breach of procedural Fairness unders 1.2. 7.

[49] In summary, this argument fails on two grounds. First, I [ind that. there was no violation
ofs. 12.7 because the CCHC Agreement did not amount to input. Second, even it? the CCHC
Agreement were input, there is no prejudice. Thus, there was no breach of the Applicant?s right
to procedural "fairness.

B. Flood Risk Analysis

[50] The second argument relied upon by the Applicant to invalidate the Grassi Bylaw
Amendment relates to the accuracy of the information relayed to Council by the Town
Administration and whether it misled or nusinliormed Council as to the Flood Risk Analysis.

[51] The Applicant. argues that procedural Fairness was violated because some information
regarding the ?ood risk presented to Council was inaccurate. As such, the Applicant relies on the
affidavit of Dr. Boone, a professional engineer who owns a home beside one of the parcels that
was rezoned for development. Relying on Dr. Boone?s af?davit, the Applicant argues that the
Flood risk report, the BCG Report, presented during the Grassi Bylaw Amendment process was
incomplete and Faulty, did not address the risks From all the creeks that might affect the area (Le.
that might Flood into the Peaks oFGrassi), and that it appears that Council 111istal<enly thought
that the ?ood question had been answered in the materials submitted.

 

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[52] Speci?cally, the Applicant contends that the BGC Report assessed the risk from Stones
Canyon Creek only and failed. to consider the risk from two additional creeks. The report was
focused on debris flow risk, not overland water ?ow ?ood risk. The Applicant adds that even
without. considering this additional ?ow from. these other creeks, the ECG Report clearly places
all of Site 1 at risk for overland ?ow ?ooding._

[53] The BGC draft report is a risk assessment that was conducted in support of the proposed
development. ECG was retrained. by the Developer to complete the assessment looking at
whether it would be affected by debris ?ow and ?ooding in the area of the development located
on the Stones Canyon Creek an. It was provided by the Developer to the Town in advance of
the Public Hearing. 1 was part of the application package given for the Town of Canmore
Request for Decision dated October 20, 2015. A ?nal version was attached to the January 5,

2016 Request for Decision meeting.

[54] In his af?davit, Dr. Boone states that the BGC assessment only considered debris ?ow
from Stones Canyon Creek and does not censider Creeks and ?0 He refers to an email dated
July 2, 2015, from Town. official Julia Eisl which states that Creek Z. and Stones Canyon Creek
appear to be relevant: Tab 3 of Dr. Boone?s Af?davit. However, the BGC draft report of
September 23, 2015, only assesses Stones Canyon Creek.

[55] The Town of Camnore argues that not only is the Applicant incorrect, but his
submissions are made without any expert evidence. The Town submits that the reason that the
ECG Report only dealt with Stones Canyon Creek, and no other creeks, was because the BGC
Report only dealt with actual ?ood risk to the development.

[56] The 2013 BGC Report was in Front of Council nine months earlier in the context of the
?rst application where the Developer sought to rezone a part of the Peaks oi" Grassi but, as
mentioned above, the application was ultimately rejected by Council. he Report was not,
however, before Council in. January 2016, in conjunction with the rezoning application at issue in
this case. The 2013 Report provided that the distal fan margins of the and Creeks were
mapped as encroaching on existing housing. When reaching the Peaks of Grassi subdivision, the
Report indicated that ?ows were believed to be very thin and largely unchamielized. Given the
lack of damage following the 20l 3 events, it did not propose any short?term recommendations
for X, and Z. Creeks at that time.

[57] The 2013 BGC report was accurately summarized to Council in February 2015 in the.
context of the ?rst application to amend the zoning bylaw:

5.e Mountain Creek Flood Hazard BGC Engineering Inc. have provided a
Project Memorandum (Forensic analysis), dated December 2, 2013 on X, and 
creeks, which are upslope from the Peaks of Grassi development. This Project
Memoir-induct examined what occurred and the impacts on the Peaks area of the
June, 20.13 flood event. The conclusion From this analysis was that the June 2013
event resulted in an ?overland Flow? through the Peaks area (versus a
sediment/debris flow as occurred on many of the other creeks in Canmore). 1300
have noted that more detailed hazard investigations are required to more clearly
establish the potential for severe debris ?ows. However, based on their .
preliminary investigation, are believed to be very thin (less than 30 cm)
and largely uncharmelizcd". The existing development has wooden diversion.
structures and riprapped channels to mitigate these overland ?ow impacts on the

 

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existing development. The increased risk to property with the proposed
development due to and creeks is deemed insigni?cant.

[58] As noted in the January 2016 Request for Decision, reference is made to steep creek
hazards and indicates that Site 1 is subject to a low hazard, which means that there is slow
flowing shallow and deep water with little or no debris. The low hazard designation also means
that there is a high likelihood of water damage and potentially dangerous to people in buildings,
on foot or vehicles in areas with higher water depths.

[59] This information corresponds to what is found in the BGC draft report dated September
23, 2015, where it also indicates that the proposed development is situated in the lowest hazard
zone categories depicted on the map: Stones Canyon Creek Development Level 2 Debris-Flow

Risk Assessment.

[60] Council was advised by some citizens of Camnore, including Dr. Boone, of the alleged
inadequacies in the report and asked to delay the Public Hearing until the inadequacies could be
addressed, However, the Public Hearing went ahead as scheduled: Af?davit oer. Gruman at
para 12.

[til] i place little weight on the contents of Dr. Boone?s af?davit. First, given the location of
his own home, he clearly has a person interest in this matter. Second, while he is an engineer by
training and profession, there is nothing in his af?davit that speaks to any particular or
specialized knowledge with respect to hydroteclmical analysis. As such, 1 am left in some doubt
as to his quali?cations to provide the opinions set forth in his af?davit.

[62] The Town concedes that the proposed overland flood mitigation solutions have not yet
been adequately studied. However, this issue has not been ignored as evidenced by the Request
for Decision of January 2016, wherein it states that the design and location of
mitigation will need to be determined at subdivision or development 'stage? and goes on to refer
to the next potential steps.

[63] During the Council meeting held on January 19, 2016, Councillor Russell expressed his
concern regarding the fact that the flood mitigation would only be handled at the subdivision
stage. Ultimately, he voted against the Bylaw Amendment, but his intervention during the
Council meeting con?rms, in my view, that Council was in no way misled or provided with
inaccurate information:

One, from the experts telling us one thing, ah, we?ve gone from, we?ve gone

tlu-augh, we have flood, we need flood mitigation in the wildlife corridor, we need

it there. You know and now we?ve got engineering telling that we?ll handle it. at

subdivision and the geotechnical estierts would like a little more. but it?s not

required. That leaves me scout, that leaves leery.

[64] In this case, the Applicant and Dr. Boone are of the opinion that the information relating
to the ?ood risk should have been more comprehensive. An assessment that considered risk
scenarios involving all the creeks would, they contend. have been more helpful and, as such,
have led to a more comprehensive report. While I accept this general proposition, it. does not
follow that the information regarding the ?ood risk was misleading or that it amounted to
misinl?ormation.

[65] The evidence is that the potential risk with respect to other creeks was known and
thought to be very low. it was, accordingly, not the subject of further investigation at the time.

 

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Both the 2013 BGC report and the draft report dated September 23, 2015 stated that the risk of
debris flow was unlikely, but that there was a risk for overland flooding. The risk of loss of life
was negligible. In fact, a signi?cant flood had fairly recently occurred in Canmore and the issues
arising out of that flood were common knowledge. -

[66] The Applicant relies on Simone!? Rocky View (Municipal District No. 44), 2004
ABQB 45. in Simonem, the applicant for?iudicial review brought an application to amend the
Land Use Bylaw to change selective areas of his land designated as floodway to flood fringe.
Following a public hearing, the application was ultimately refused. Justice Park found that the
evidence showed that Council was misdirected as to the correct facts. Justice Park. was of the
opinion that he could not determine what weight, if any, was given to the inaccurate evidence
and concluded that the decision could not be upheld as reasonable considering the inaccuracies
and irrelevant material and considerations provided to Council. In that instance, there were also
some highly prejudicial misstatements which created procedural unfairness. He concluded that
the only way the matter could be resolved was to provide the Applicant with a new public
hearing for his redesignation application.

[67] The Applicant contends that Simonelli establishes that when Council considers irrelevant.
or inaccurate information, this results in a breach of procedural Fairness which vitiates the
proceedings, or at least makes them vulnerable to being set aside onjudicial review. The
Applicant argues that in light ofSimonelli, breach of procedural fairness occurs if inaccurate
evidence is presented to Council at the hearing. In other words, the Applicant contends that
misleading data or evidence presented to Council can create procedural unfairness.

[68] in this case, there is no evidence that Council was misled, misinformed or that the
information conveyed was irrelevant. BGC was of the opinion that risks with respect to other
creeks are not significant. The risk of overland flooding was clearly identified to Council.
Moreover, i am satisfied that Council was aware that ?ood mitigation measures would need to be
considered in the future. In my view, this case is distinguishable from Simonelli. There is no
evidence, expert or otherwise, in this instance that substantiates the Applicant?s assertion that
Council acted on misleading or inaccurate information, thereby giving rise to a breach of
procedural fairness.

C. Geotechnical Screening Reports
[69] The third ground relied upon by the Applicant to invalidate the Grassi Bylaw

Amendment relates to the accuracy of the information conveyed by the Town Administration
with respect to a geotechnical screening report.

[70] The Developer?s application submitted in August 2015 refers to the fact that engineering
and geoteclmical reports will be required shouid the proposal proceed to subdivision approval
and offers a preliminary comments regarding the exposed bedrock in the area.

[7i] Dr. Boone?s affidavit refers to an email dated December 23, 2014, which pro?dates the
second application ?led in August 2015. The geotecluiical report is dated January 16, 2015.
[72] The Applicant argues that the Town Administration misled, or otherwise misinformed,
Council as to the geotechnical screening reports in regard to building on a rock outcrop and that
this action resulted in a breach of procedural faimess.

[73] The Applicant agrees that the provision of a screening report was not
mandatory in this case, but argues that if Council relied on inaccurate this can lead

 

Page:12

to breach of procedural fairness. The Applicant argues that Administration represented to
Council that it had relied on a geotechnical report to recommend the approval of the rezoning.

[74] The Town maintains that Council did not receive the geotechnical report until sometime
in March 2016, well after the Grassi Bylaw Amendment had already been approved. 1t submits
that, in any event, a complete answer to this question is that any decision regarding building on
rock outcrops is a consideration at the development stage and, as such, is not relevant. to the
Grassi Bylaw Amendment relating to rezoning.

[75] There is no evidence that Council considered in any way the report which is date-stamped
March 2016. i am satisfied that it was received after the Grassi Bylaw Amendment had already

been approved.

[76] 1 agree with the Town of Canniore that even if Mr. Boone?s position is correct in stating
that the report is deficient, there is no evidence that the Council reviewed it before March 2016,
or that that it relied on it in reaching its decision to pass the Grassi Bylaw Amendment.

[77] In the result, I am not persuaded that there was a breach of the Applicant?s right to
procedural fairness on this basis.

D. Environmental Impact Statement (BIS)

[78] The provisions of the MDP appear to require that an EIS be submitted with a rezoning
application where a deveIOpment proposal is within or adjacent to Environmentally Sensitive
Areas. in such instances, the MDP requires an independent third party professional to evaluate

the BIS.

[79] The lands sought to be rezoned in this case are clearly adjacent to an Environmentally
Sensitive Area. In this case, the Developer submitted as part of its application an environmental
brief. later supplemented by a series of updates. entitled Enviromnental Study for Peaks Landing.
This document was prepared by Corvidae Environmental Consulting Inc. (?Corivadae Report?).
though no specific author was identi?ed. On the evidence before me. it is clear that there was no
third party review of the Corvidae report

[80] The Applicant argues that the Administration misled or otherwise misinformed Council
as to the need for a third party EIS. He argues that the failure to provide such a statement was
necessary in detennining that the subject parcel was suitable for development and. that this failure
resulted in a breach of the Applicant?s right to procedural fairness. Mere speci?cally, the
Applicant submits the Town ot?Caninore failed to perform the environmental screening required
by sections 8effect the rezoning1 which led to a breach of procedural

fa irness.

[81] The "town does not dispute that an EIS, as mandated by the was required. but.
argues that the Applicant had no procedural right to have an EIS before Council. Thus, there was
no breach of procedural fairness.

[82] In 2014, when the Developer tiled a ?rst application to rezone the Lands from Urban
Reserve to Direct Control and Public Use District, the Administration?s recommendation was
that Council consider giving a second and third reading of Bylaw?2014-18. in suinnitting the
matter to Council fora decision, the Administration took the position at that time that a. more
detailed EIS was not required for the land use amendment application prior to the Council
decision, considering the location of the project in relation to the wildlife corridors and habitat

 

Pagezl3

patches identified in the Town?s MDP. The Request for Decision addressed the issue of the East
parcel:

However, as presented at the public hearing in a statement by Corvidae, they are
con?dent that. a more detailed BIS based on the development proposal would not
change the recommendations or proposed initigations in the study. Corvidae
explained that the Enviromnental Brief is, in essence, a summary of what a more
detailed 1313 would contain and that the existing issue of human use in wildlife
corridors is a more significant issue than the anticipated. impacts of this
development application, Additionally, ESRD did not require a more detailed
report to be submitted or formulate their response.

[83] In the Request for Decision, the Administration stated that the MDP should not be
interpreted literally because it would mean that any and all development in the valley bottom or
adjacent to an Environmental Reserve would require an EIS (cg. internal renovations to an
existing, building, or even a garden shed). The Administration was also of the opinion that and
E18 would not be useful in the circumstances because the Environment Reserve dedication was
due to the steep slepes and, in any event, it was not intended to protect wildlife corridors.
sensitive areas or rare species:

In this case speci?cally, the boundaries of the Enviromnental Reserve (ER) in
question Were defined based on a geotechnical investigation (Appendix 4). The
purpose of the 132R declination was clue to steep slopes greater than 35%. The
preparation of an 1318 to evaluate the impact of the development on the adjacent
steep slopes is not, in Administration?s opinion, useful information to evaluate the
impacts of this application. The purpose of ER as regulated in the MGA pursuant
to Section 664(1) is to protect undevelopable land due to concerns with steep
slopes, gullies, swamps, flooding, or to prevent pollution. Under the current
Provincial. legislation. ER is not intended to protect, for example, wildlife
corridors, sensitive habitat, or rare species.

[84] The Administration also noted that the public had expressed concern that the Town was
not using the new boundaries as shown in the 2012 Bow Corridor Ecosystem Advisory Group
guideline document and, further, that an 1318 should have been required. Administration
conunented that the updated boundaries had not yet been incorporated into the thus, in its
opinion, an EIS was not required. it also stated that. had the boundaries been updated in the MDP,
Administration would have required an EIS to be submitted with the application.

[85] The Council rejected this ?rst application which contemplated the development of 23
dWelling units. The subsequent rezoning application at issue before this Court was made a few
months later, which led to subsequent Requests for Decision (for first reading, a public hearing,
as well as for second and third readings),

[86] The third attachment to the Request for Decision dated October 20, 2015 is the Corvidae
Report. It suggests that no BIS is required because the project complied with the current MDP
and was included in the Natural Resources Conservation Board decision for land use approval in
1992. As part ofthe NRCB process, a full Environmental Impact Assessment covering the
project site was submitted for review and was accepted. in addition the document indicates that
Corvidae Environmental Consulting, inc. was advised by the Town that due to the project area
not being considered adjacent to wildlife corridors or habitat patches, as outlined within the

 

Pagezld

no is required under the MDP. Corvidae received con?rmation of this information
through communication with the of Canmore planners in August 2014 and September
2015.

[87] The August 2015 Application which was reviewed for second and third reading in
January 2.016, and led to the adoption of the Grassi Bylaw Amendment, contemplates between
35 and 40 new dwelling units on 1.83 acres.

[88] in addition to the environmental study, the Developer also provided a letter dated October
20, 2014 from Environment and Sustainable Resource Development (ESRD) which was
addressed to Ms. Woltenko (development planner of Camnore) and was in response to an email
request asking for comments and recommendation in the context of the ?rst bylaw amendment
application. The ESRD commented and made some recommendations with respect to a number
of issues including the impact of the develoiunent on the level of con?ict between human and
wildlife.

[89] In summary, the evidence is that the Corvidae Report (including its Updates), as well as
the letter from ESRD, addressed related environmental issues, but no formal BIS was provided.
Moreover, there was no independent. review of the Corvidae Report.

i. Procedural Fairness

[90] The Applicant submits that the Town of Canmore had an obligation to act in accordance
with the provisions of the as well as with the .MGA. He says that this manifests as a duty of
procedural Fairness which the Town was obligated to follow. The Applicant argues that by
failing to abide by its own bylaw, the Town of Canmore breached its duty of procedural fairness
to the Applicant and that the Applicant has suffered prejudice as a result of the breach.

[91] In this case, the [ends bordering an Enviromnental Reserve are being rezoned. The
Applicant maintains that an EIS is therefore required. He adds that the requirement for on 13.18
can only be met if the 1218 is subject to an independent third party review, pertormed by a
professional selected by the Town.

[92] The Applicant argues that the required EIS and third party review was a condition
precedent to rescuing the Peaks of Grassi. 1.11 the absence of the required BIS and third party
review, the Applicant maintains that the Town did not have the authority to consider and pass the
Grassi Bylaw Amendment without breaching the Applicant?s right to procedural fairness. The
Applicant submits that the failure. to follow the requirements of its own prevents Council
from doing what is required of it to determine whether the Peaks of Grassi are suitable for
rezoning. He adds that when the Town failed to comply with its MDP, it acted contrary to its
duty to accord the Applicant procedural fairness. According to the Applicant, he relied on the

own. to comply with its own bylaw.

[93] The Town says that Administration did not mislead Council regarding the need for an
1318. The Town further submits that. the lack after 1318 with respect to the Grassi Bylaw
Amendment application did not result in a breach of the Applicant?s right to natural justice and
procedural fairness, because he had. no procedural right to have an 1318 before Council. The
Town submits that, in any event, there is no evidence that the Applicant su fered any preiudice as
a result of the lack of an BIS.

[94] It is not disputed that an as mandated by the MDP was required, but the issue in this
case is whether the fact that it was not obtained led to a breach of procedural fairness.

 

Page:l5



[95] In. Iraq}; a Cli??rm Corporation, 2005 ABCA 144 at para 15, the Court discussed what
should be considered when determining the content of procedural Fairness:

The central issue in this case concerns the content ofCity Council?s duty of
procedural fairness. The relevant considerations to be considered in determining
the content of procedural fairness articulated in Baker v. Canada (ilrfinisrer of
Citizenship and Immigration), [1999] 2 S.C.R. 817 were recently reiterated by
McLachlin C.J.C. in Congr?gotion dos ten-toms de Jehovah dc awe-am-
Lofonmine c. quonminc (Municipotit?) (2004), 323 NR. 1, 2004 SCC 48. There
she stated at para. 5:

The content of the duty of ?airness on a public body varies
according to live factors: l) the nature of the decision and the
decision-making process employed by the public organ; (2) the
nature of the statutory scheme and the precise statutory provisions
pursuant to which. the public body operates; (3) the importance of
the decision to the individuals affected; (4) the legitimate
expectations of the party challenging the decision; and (5) the
nature of the deference accorded to the body.

[96] I will consider these five factors in relation to the speci?c facts of this case to determine
the extent of the duty of procedural fairness owed in this instance.

a) Nature of the decision-

[97] i am satis?ed that the nature of the decision then before Council was an important one.
As stated in Atkins at para 20:

The dividing line, 1 suggest, may be the nature of the issues before a council.
When the proposed rte-designation is about one parcel, and the dispute is between
two citizens, and when no larger question of public policy is engaged, I would
expect that, in the absence of some special reason, the hearing would be inclusive
and decisive. In other cases, especially when larger political questions arise, the
role of a council is much more legislative than judicial and the hearing should be
seen by all as nothing more than one aspect of the decision process.

[98] in this case, the decision to pass a bylaw was a decision that obviously rested with the
elected Town Council. The issues identified by citizens at the Public Hearing, including the
question of affordable housing, are illustrative of the broader policy questions raised in this case.
This was not simply a dispute between two citizens, but rather an issue that had broader, more
widespread ramification. While the issue of the rezoning will clearly affect the Developer and
other citizens directly impacted, the issue raises other public policy considerations requiring
Council to exercise a legislative role in the process. This same distinction was described by
Nielsen in Campbell-(at para 

The matter being considered by City Council in this case was not a dispute between two
citizens. Rather, it involved larger political questions such as the overall deveIOpment of the
Molson Site, ramifications for several surrounding communities and ramifications for future
develoljment. That this is so is evident from the fact that notice of the Rezoning
Application. was circulated to ll individuals and organizations and from the wide
consultation that was undertaken by the Sustainable Development Department in its review

 

Pageil?

of the Rezoning Application. Although the rezoning will ultimately affect the Developer and
other citizens impacted by it, the decision is more legislative in nature than judicial
considering the broader nature of the question here.

The Nature of the Statutory Scheme

[99] As mentioned above, in this case there was a public hearing before the second reading of
the Grassi Bylaw Amendment, allowing interested parties to make representations and to ask
questions.

[100] Section 632 of the MGA, as it read at the time of the application, provides that a council
of a municipality with a population of over 3500 must; adopt a municipal development plan. The
refers to what can and must be addressed in a municipal development plan.

[101] Although not a mandatory requirement, the MDP addresses environmental matters as
follows:

8.4 Environmentally Sensitive Area Policies

3) Environmentally Sensitive Areas within the Urban Growth Boundary will
include all lands illustrated in Map 4 Wildlife Habitat and Movement Corridors
and Map 5 Flood Risk Areas. Development on those lands contained within the
proposed Wellhead protection Area will not be treated as environmentally
Sensitive Areas, but will be governed though the requirements of the Land Use
Bylaw. In addition, all lands that qualify as Environmental Reserve under the
Municipal Government Act will be treated as Environmentally Sensitive Areas.
The Speci?c boundaries of Enviroinnenlally Sensitive Areas within the Urban
Growth Boundary shall be de?ned at the Area Structure Plan or Conceptual
Scheme of Subdivision stage.



c) Development proposals within or adjacent to Environmentally Sensitive Areas
shall include an Environmental impact Statement pursuant to Section 8.5(a)
which shall identify the boundaries of the natural area and evaluate the impact of
the proposed development.

[102] Section 8.5 outlines the requirements ofan BIS, including a requirement for a referral to
an independent and professional third party review.

[103] The Applicant maintains that the Town of Canmorc failed to provide an BIS in
conjunction with the rezoning application, as required by sections 8.4 and 8.5 of the MDP.
According to the Applicant, this failure amounts to a breach of procedural fairness. On the other
hand, the Town contends that. the procedures mandated by the MGA were generally followed in
this instance. Speci?cally, a Public Hearing was held before the second reading of the Bylaw.
Moreover, the Town says that the Applicant is in error to suggest that the MDP provides him
with additional rights i.e. the failure to liillow the provisions regarding the EIS is a breach of his
right to procedural fairness.

[104] The Town acknowledges that the 11?po is a mandatory document required by every
municipality with a population 3,500 or more, but that the rlleP is intended to be a guiding

 

Page:l7

document, advisory in nature only, and does not create any substantive rights for the residents of
Canmore. In other words, the Town says that the content of the MDP is not relevant to de?ning
the scope ofprocedural fairness owed to the Applicant: in this instance. Moreover, the Town
contends that Council has a discretion as to which, if any, of the requirements of the MDP will
apply in any given situation. As such, it was open to Council in this instance to determine that for
budgetary or other considerations the procedure mandated under the MDP with respect to an
independently reviewed EIS would not apply.

[105] The MDP states that its role is ?to provide the policies and guidelines that will direct the
future growth and development of the Town of Caninore. The Town suggests that the MDP
should be regarded as ?the principle long?range land use planning instrument of the
municipality?: Town of Canmorc, Municipal Development Plan, Byim-v 30-98, s. 2.0. The
attainment of the MDP '3 goals is subject to budgetary considerations. As such, the Town?s
planned and/or proposed policies and programs must be considered in light of the availability of
funds: Development Plan, Bylaw 30-98, s. 4.0.

[106] In certain circumstances, envirorunental assessments are not required. For example,
section 5.0 of the MDP provides that there will no longer be a requirement to prepare an
environmental assessment or studies for the Town of Canmore in circumstances where an
environmental impact statement has been prepared and approved by the NRCB, and no
signi?cant or relevant change has occurred. Section 5.0 goes on to say that the Town may still
require an additional eaviromnental impact assessment in such circumstances ?where necessary?.

[107] In this case it was not mandatory to address environmental matters, but the MDP in this
case speci?cally addressed the proCedure regarding development proposals adjacent to
environmentally sensitive areas which includes the provision ofan EIS.

c) Importance of the decision to the individuals affected

[108] The Applicant submits that development will clearly disrupt the neighbourhood while
construction is proceeding and will ultimately lead to an increase in density and traf?c. As such,
he maintains that this development will have significant. impact on him.

[109] The Town of Caninore, on the other hand, submits that the impact of development on the
environment is a larger societal and political question, It argues that Council hasjurisdiction over
all of the lands within its boundaries and it must balance the interests of development with the
interests of environmental stewardship, speci?cally the impact of development on the 
envirorunent.

in general, I accept the Town?s submission that it must consider not only how the
rezoning will affect the Applicant, but also the overall public interest. The Town must balance
the interests of the Applicant with the competing interests associated with the provision of
affordable public housing presented by this proposed development. In addition, the Town must
balance those interests with the impact of development on the environment. I would refer again
to the decision of Nielsen in Cannibal! in this regard. In my view, Justice Nielsen?s description.
of this factor is very helpiiul. At para 29, he stated:

The third factor requires that consideration be given to the importance of the decision of
City Council to Mr. Campbell and the Community League. The Supreme Court of
Canada in Biff/{HF indicated that the more important the decision is to the life of the
individual affected and the greater its impact: on that person, the more stringent will be

 

PagezlS

the mandated procedural protections. In this case, the development ol?the Molson Site, no
doubt, would have an impact on residents in [he Oliver community, being a. community
relatively contiguous to the Molson Site. Therefore, Mr. Campbell, as an individual
residing within that conununity, as well as other members of the Community League
would be affected by any decision of City Council with respect to the development oflhe
Molson Site. Having said that, any decision with respect to the development ofthe
Molson Site would not, in my view, he said to be an extremely important decision
affecting the lives ofindividuals residing in the Oliver Community. City Council must, of
course, balance any impacts on individuals against the overall. public interest.

d) The legitimate expectations of the party challenging the decision

[1 l] The Applicant submits that he had a legitimate expectation that the Town would follow
its own bylaws and that certain procedures would be Followed. He says that .his legitimate
espectations in this regard forms the content of the Town?s duty of procedural fairness to him
and to all citizens who are impacted by the decision. He maintains that the requirement to obtain
an EIS reviewed by an independent and professional third party is one element of the Town?s
duty of procedural fairness.

[1 l2] The Town of Caumore acknowledges that the Applicant is entitled to be assured that the
Town has discharged its duty to assess the environmental impact of the development on the
Lands and the surrounding lands. According to the Town, the Applicant is not entitled, however,
to dictate or require the Town to consider the environment in a speci?c way. The Town says that
the level of procedural fairness arising from the legitimate expectations of the Applicant is low,
and all that is required is that the Town consider the enviromnental impact of the development.

[1 13] The MDP requirement for an independent third party review cannot, in my view, he
disregarded. One would expect that a certain minimum level ol?compliance with this
process would be Followed. In this case, the report by Corvidae does not identify the expert or
the members otthe expert team who prepared the report. On the evidence before me, it is clear
that it was submitted by the Developer as part of its application and did not involve any third-
party assessment or review. The report does not comply, in my view, with the MDP
requirements. In fact, the report speci?cally refers to the fact that compliance with the MDP was
not required. I am satisfied that the Applicant had a legitimate expectation that this required
assessment and independent review, and that the speci?ed procedures would be completed
before the Grassi Bylaw amendment was submitted to Council for approval.

9) The Nature of the deference accorded to the body

[1 14] The Council consists ofelected officials. The decisions ol?elected of?cials are generally
accorded a hi gh level of del?crence. Section 539 ol? the {110.4 is clear in this regard.

15] In Keefe, the issue was whether the reviewi-ngjudge erred when she concluded that there
was a breach of procedural fairness because the City Council did not allow the respondent?s
consultant whose credibility was challenged - to make submissions by telephone. While the
facts in Keefe are readily distinguishable from the within matter, the decision is persuasive in
that it con?rms that a municipal council enjoys a large degree of procedural autonomy. At para
2 l, the Court of Appeal held:

The fifth factor to consider in determining the content of City Council?s duty of
t?aimess is the nature l? the deference owed to its procedural choices. The

 

Pagetl9

reviewingjudge expressly acknowledged that municipal councils enjoy a large
degree of procedural autonomy regarding the conduct of their hearings. However,
she concluded that the issue in this case was ?closer to an inter?party dispute than
a policy decision" from which we infer that she concluded less deference was
required. We see no error in such a conclusion. Council?s discretion to determine
its own procedure is subject to compliance with its own legislative scheme and
procedural fairness.

[116] The Council exercised its discretion in accordance with the MGA and chose to address
enviromnental matters in its MDP. It also exercised its discretion by adopting a Specific process
in circumstances where a proposal is located within, or adjacent to, an environmentally sensitive
area. Although Council enjoys a significant degree of procedural autonomy, Council is not free
to disregard its own legislative scheme.

l) Conclusion

[l 17] The extent of procedural fairness that must be afforded by a town council with respect to
a rezoning application varies according to the [actors enumerated in Baker. After considering the
five Factors, i find that the "Iowa Council?s role was more legislative than quasi-judicial in
nature. The rezoning decision affects the Applicant, but there are also broader considerations at
play impacting the public, generally. Of particular importance here is that Council opted to
establish a process in cases where a development. proposal lay within, or adjacent to,
Envirorunentally Sensitive Areas. It is part of the legislative scheme and the Applicant had a
reasonable expectation that Council would follow its own procedures. Accordingly, I ?nd that
the Council was obliged to afford a moderate level of procedural Fairness in this instance.

ii. Was there a breach of procedural fairness?

[l 18] In this caseCouncil was aware of the stated requirements of the MDP with reSpect to an

BIS. i-lowever, it was told by Administration in the Request: for Decision dated February 3, 20l 5
that the Administration did not recommend it. During oral submissions, the Town conceded that
a strict interpretation of the MDP did, indeed, impose such a requirement on the Town.

[1 The latest Corvidae Report dated November 20] 5 is unsigned. it was submitted by the
Developer with no third party audit. it refers to the MDP, but only to state that it was advised
that an EIS was not required. 'l?hercfore, it obviously does not comply with the 
requirements. The Administration wrote ?as presented at the public hearing in a statement by
Corvidae, they are. con?dent that a more detailed EIS based on the development proposal would
not change the recommendations or proposed mitigations in the study.? This statement was no
doubt meant to he reassuring. However, i find that it. was actually misleading considering that no
proper 813 detailed or otherwise - was prepared so as to be available to Council prior to making
its decision.

[1.20] A breach of procedtu?al fairness does not automatically vitiatc a proceeding without.
evidence ofprejudice, or circumstances in which the breach would bring the administration of
justice into disrepute: Campbell at paras 41?42; Keefe at para 29.

[l 2 t] In my view, the duty of procedural fairness owed by the Town of Canmore in this
instance was moderate. Here, the Town not only disregarded the requirement For an but also
other requirements, including a mandatory third party review. The procedural safeguard that was
in place was discarded. It is dif?cult to even assess the prejudice considering that the

 

Page:20

process in place with respect to the EIS was not followed at all. 1 cannot accept the Town?s
contention that no prejudice has been established given that, according to the Town, the outcome
Would necessarily have been the same. Under the circumstances, it is not possible to know the
outcome if this important additional information had been available for Council?s consideration.
in my view, it would be speculative to conclude that the outcome would necessarily have been
the same ifthese requirements had been met.

[122] Accordingly, I find the manner the EIS requirement was dealt with was so ?devoid ol? the
appearance of fairness that the administration of ustice is brought into disrepute.? On this basis,
I find that the Grassi Bylaw Amendment must be invalidated.

E. Was Council?s decision unreasonable because it considered what was to he built
on the subject lands rather than the land?s suitability for development?

[123] In view of my ?nding that the Town of Canmore breached its duty of fairness in failing
to comply with the EIS requirements as mandated by the it is not necessary for me to
detemiine this issue.

[124] i would note, however, that the MDP objectives include the provision of a ?well-balanced
mix of housing types, tenure options and prices that meet the household accommodation needs of
a full range of socio-economic groups and maintain the current demographic diversity of the
community?. A municipal council has latitude when passing a bylaw. Council may consider
?broader social, economic and political factors that are relevant to the electorate?: Catalyst Paper
Corp. at para 3t).Given the content of ss 617 and 539 of the and the objectives of the

MDP, I would have foiled that the reliance on the interest of affordable housing in the adoption
at? the Grassi Bylaw Amendment was reasonable under the circumstances.

F. Was Council?s decision unreasonable because it was based on incomplete,
inaccurate and faulty evidence with respect to flood risk, screening
and environmental screening?

[125] In view ol?my ?nding that the Town of Canmore breached its duty of Fairness in failing
to comply with the E18 requirements as mandated by the MDP, it is not necessary For me to
determine this issue.

VI. Conclusion

[12.6] i conclude that the Town of Canmore Bylaw 2015?19 is invalid.

 

Page: 21

[127] The Applicant is entitled to his costs given his success in this Application. If the parties
are unable to reach an agreement on the issue of the appropriate costs in this instance, they may
seek direction from the Court within 30 days ol?the date of the tiling ofthis decision.

Heard on the 14'h (lay of March, 2017 with additional written submissions filed on March 21"

and March 2017.
Dated at the City ot?Calgary, Alberta this 3?1 day efJuly, 20 i 8.

 

Gates
J.C.Q.B.A.

M. David/ 

Appearances:

James B. Laycraft, Q.C. and Richard E. Harrison
for the Appiicant

Michael D. Aasen
for the Respondent