Alberta Court of Appeal finds breach of procedural fairness in Borgel v Paintearth (Subdivision and Development Appeal Board), 2020 ABCA 192

In the recent Alberta Court of Appeal case of Borgel v Paintearth (Subdivision and Development Appeal Board), 2020 ABCA 192, the unanimous Court (Watson, Wakeling and Strekaf JJA) found that the County of Paintearth Subdivision and Development Appeal Board (SDAB) had breached its duty of procedural fairness to the 11 appellants represented by our Bill McElhanney, Q.C., and Alexander Yiu.

In brief, the appeal involved a dispute between 11 appellant landowners, the County of Paintearth (County) Respondent, Capital Power Generation Services Inc. (Capital Power), over a windfarm project in the County. In Alberta, windfarm projects need the approval of the Alberta Utilities Commission (AUC) and development permits from the County. The County approved the windfarm project and issued 74 development permits. The AUC approved the project seven months later.

In the interim, the appellants appealed the approval of 10 development permits to the Subdivision and Development Appeal Board (“SDAB”). The SDAB adjourned the hearing pending the release of the AUC decision and scheduled a hearing to discuss the SDAB’s authority under s. 619 of the Municipal Government Act, RSA 2000, c M-26 (“MGA”). Once the AUC decision was released the SDAB upheld the development permits and cancelled the merits hearing.

The issues before the Alberta Court of Appeal were threefold: (1) whether the SDAB erred by concluding that the term ‘municipality’ in ss. 619(2) and (4) of the MGA including the SDAB and the County’s Municipal Planning Commission; (2) whether the SDAB erred by failing to hold that ss. 619(2) and (4) of the MGA required the County to await for the approval of the AUC prior to issuing development permits; and (3) whether the SDAB breached its duty of procedural fairness by cancelling the merits hearing?

In resolving the first issue, the Court held that the SDAB is included in the definition of ‘municipality’ in s. 619 of the MGA. In coming to this conclusion, the Court looked at the MGA as a whole and its legislative history and concluded that the purpose of s. 619 is “to reduce regulatory burdens and increase administrative efficiency and consistency”[1]. This is done by giving provincial bodies paramountcy over certain decision so that projects are not stalled at the municipal level for issues that have already been decided at the provincial level.

The Court of Appeal further concluded that the County’s Municipal Planning Commission was not required to wait for AUC approval of the project prior to issuing permits. The Court held that s. 619 does not “prescribe a statutory chronology for events” when an application is made to a municipality for development permits.[2] The Court compared s. 619 to the Natural Resources Conservation Board Act, RSA 2000, c N-3 where s. 5(2) indicates that the NRCB may order that no permits be approved until the project has been approved by the NRCB.

Regarding the third issue, the Court concluded that the SDAB breached its duty of procedural fairness to the appellants by cancelling the merits hearing. Despite the merits hearing being limited in scope due to s. 619 of the MGA, the appellants were deprived of the opportunity to make submissions on remaining issues.

The Court cancelled the SDAB’s decision to dismiss the 10 appeals and the matter was to be referred back to the SDAB to be reheard with the following directions: (1) the SDAB is to approve the development permits provided the applications comply with the AUC approval; and (2) the SDAB hearing is not address matter which have already been decided by the AUC.

This case is significant in the body of administrative jurisprudence in that it is the first time that Alberta’s highest court has addressed the statutory interpretation of section 619(2) of the MGA.  In addition, the finding of the Court of Appeal that there was a denial of procedural fairness to the appellants by the SDAB affirms that an individual’s right to not only be heard but fully heard remains entrenched as a fundamental component of the rule of law in our society.

To access a full copy of the Court of Appeal decision, please click here.

For more information regarding this article, please feel free to contact Bill McElhanney, Q.C., or Alexander Yiu.

[1] Borgel v Paintearth (Subdivision and Development Appeal Board), 2020 ABCA 192 at para 22.

[2] Ibid at para 26.