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Section 688(3) of the Municipal Government Act specifically contemplates the Court hearing from persons affected by an application for permission to appeal a Subdivision Appeal Board decision

Alberta

,

Canada

Judges Deciding Permission to Appeal to Hear from Affected Persons, per s688(3) MGA In Clark v. Deer Trail Development Inc, 2022 ABCA 44, a person sought to be added as a party or an intervenor to a development corporation’s application for permission to appeal a decision of the Calgary Subdivision and Development Appeal Board (“SDAB”). The decision in question refused to grant the developer’s application for a 4-lot residential subdivision.Kirker J. noted that s.68 (3) of the Municipal Government Act, RSA 2000, c M-26 contemplates that a judge deciding a permission to appeal application will hear from those persons who are in the opinion of the judge, affected by the application (para. 4). Court’s Authority to Add Parties The Alberta Court of Appeal’s authority to add parties to an appeal is rooted in r.14.57 of the Alberta Rules of Court, Alta Reg 124/2010, and in the court’s inherent jurisdiction. R.14.57 allows the Court to do so where the Court is satisfied the order should be made, and the court’s inherent jurisdiction allows it to do so in the interest of justice. The traditional test for party status in an appeal was explained in Carbon: An applicant must show it has a legal interest in the outcome of the proceedings;It is just and convenient to add the applicant; andThe applicant’s interest can be adequately protected only if it is granted party status. (para. 9).However, “[t]he requirement for an adversarial context is a ‘fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome’: Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342, 57 DLR (4th) 231 at para 31”, and that “[a] permissive stance … ensures that a reviewing court is presented with the strongest arguments from both sides” Disposition The Court found the applicant and the other adjacent landowners he represented had a legal interest in the outcome of the proceedings and a unique interest adverse to the developer’s position on the issues to be addressed on the application for leave to appeal. It was thus in the interests of justice that the Court hear this perspective, and s.688(3) of the MGA was held to also contemplate the Court hearing specifically from persons affected by the application (para. 14). The applicant’s interests could be adequately protected only by being granted party status due to the limited and circumscribed role of the SDAB (para. 15).

April 14, 2022
Clark v Deer Trail Development Inc, 2022 ABCA 44