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Arguments for Court of Appeal case submitted by TSMVPL, Stoney, LPRT

The arguments to decide if an appeal can move forward on the Land and Property Tribunal orders for the Town of Canmore to approve a pair of area structure plans were filed by all parties.
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New houses under construction in Stewart Creek at Three Sisters Mountain Village in 2021. RMO FILE PHOTO

CANMORE – Arguments to decide if an appeal can move forward on a tribunal's orders for the Town of Canmore to approve a pair of area structure plans guiding future development on Three Sisters land were filed by all parties.

Three Sisters Mountain Village Properties Limited (TSMVPL), the Town of Canmore, Stoney Nakoda, Natural Resources Conservation Board (NRCB) and Land and Property Rights Tribunal (LPRT) all filed for the Sept. 12 deadline for the Court of Appeal case in early October.

TSMVPL’s 27-page memorandum argues the Town failed to show the LPRT erred in either law or jurisdiction in rendering the two decisions and emphasized the standard of review being reasonableness as opposed to correctness as outlined in the Town’s memorandum.

“The Town misapprehended the standard of review of decisions of the LPRT,” TSMVPL’s memorandum stated. “The applicable standard of review, as set by statute, is reasonableness. In light of the Town’s misapprehension, the Court should carefully scrutinize the Town’s submissions. … When reviewed from a reasonableness standard, the LPRT did not err in law or in jurisdiction, or indeed at all.”

The standard of review for a court focuses on correctness and reasonableness. In the case of decisions made by administrative bodies such as the LPRT, the tribunal’s act establishes the standard of review.

Reasonableness examines if a decision was reasonable or unreasonable in coming to a decision, which if it isn’t, the court could send it back to the decision-maker to look at it once again. The Town would have to show the LPRT’s decisions were unreasonable and that it acted outside of its legislative powers.

Correctness can examine if a decision is about the law or the decision-maker's ability to decide the matter such as the LPRT to render an order on the Three Sisters Village and Smith Creek area structure plans (ASPs).

The small but important difference in the Town’s memorandum was emphasized in both TSMVPL’s and the LPRT’s submissions.

“A reasonableness standard of review requires the Town to meet a higher threshold to succeed in obtaining permission to appeal, as compared to appeals from SDABs where the standard of review is correctness,” TSMVPL’s memorandum stated. “The reviewing court must not reweigh the evidence, but is to determine whether the decision made by the administrative decision-maker, including both the rationale for the decision and the outcome to which it led, was unreasonable.”

TSMVPL’s memorandum hammered home the standard of review needing to be reasonableness, with it coming up 14 times as reasonableness and 23 as reasonable.

“Contrary to the Town’s submissions, the standard of review for a decision of the LPRT is prescribed statute as reasonableness on all issues, including questions of law and jurisdiction,” it stated.

“To obtain permission to appeal, the Town must demonstrate that each ground of appeal involves a question of law or jurisdiction of sufficiency importance to merit a further appeal and the appeal will have a reasonable chance of success.”

The LPRT’s nine-page submission emphasized Section 688 appeals are only for questions of law and the “standard of review is reasonableness” as outlined in the LPRT Act.

It continued to stress the LPRT’s jurisdiction in hearing the two cases under Section 619 of the Municipal Government Act (MGA).

“The LPRT may either dismiss an appeal or order the municipality to amend the statutory plan or land use bylaw in order to comply with the authorization granted by the NRCB or other provincial agency.”

The NRCB and Stoney Nakoda were allowed to file a single written submission of no more than 10 pages. The Stoney Nakoda is limited to addressing four specific subparagraphs, while the NRCB was more focused on providing any necessary background.

The NRCB submitted 126 pages of reference material to go with its 10 pages of memorandum of argument. It was adamant no challenge to the 1992 NRCB decision be made or any insinuation of a timeline to its decision would be argued by any party.

“The NRCB is concerned about the implication that anyone, including this Honourable Court, has jurisdiction to stale-date an NRCB approval. … The Court of Appeal cannot, in the midst of a permission to appeal process for LPRT decisions, revisit an NRCB decision that was never appealed and is not being appealed today.”

It emphasized it has jurisdiction to determine if projects are in the public interest, but are not a regulator for any approved project.

The NRCB also said its decisions can be flexible with future changes such as those that led to the Canmore Undermining Review Regulation in the MGA and the approved wildlife corridor granted by Alberta Environment and Parks.

“The credibility of the NRCB process is contingent on the effectiveness of any approval that may be issued as a result of a review under the NRCB Act,” its memorandum stated.

“Section 619 (1) of the MGA is prospective legislation. It places constraints on municipalities, subdivision and development appeal boards and the LPRT. It requires these bodies to accommodate existing provincial approvals, licences or permits. It does not place constraints on the NRCB.”

The Stoney Nakoda argued the LPRT erred in not addressing how changes since 1992 have affected its rights and interests could impact the consistency between the ASPs and NRCB approval as well as not considering reconciliation and honour of the Crown.

The 10-page Stoney memorandum with 36 pages of reference material highlighted the development of law with reconciliation and honour of the Crown since 1992, with public interest now accounting for those principles.

“The Stoney Nations note that the NRCB approval is reflective of the period in time in which it was made – a time when the law had not yet made certain the requirement of government decision-makers to consider honour of the Crown and the objectives of reconciliation when determining which developments are, or are not in the public interest.”

TSMVPL emphasized the lack of experts called by either the Town, Stoney Nakoda and Yellowstone to Yukon (Y2Y) during the hearings and its use of experts in highlighting the two ASPs and their consistency with the 1992 NRCB decision.

“The Town put in no evidence showing a side-by-side comparison of the ASPs with the NRCB approval and raised nine discrete issues regarding consistency between the NRCB approval and the ASPs,” TSMVPL’s memorandum argued.

It also noted the LPRT’s decisions were in line with other cases heard under Section 619 in AES Calgary and the MD of Rocky View in 2002 and Borgel v. Paintearth in 2020 that found a project with provincial approval didn’t need to “re-justify their project to the municipality” and it limits the municipality's authority in planning issues.

“The LPRT’s decisions were reasonable as its conclusions are in line with established jurisprudence from this Court and the [Municipal Government Board].”

The Town filed its permission at the end of August to appeal the LPRT decisions on nine grounds.

It focused on the retrospectivity of the LPRT having jurisdiction to decide on the matter, the Smith Creek and Three Sisters Village ASPs not being amendments as needed under Section 619 in the MGA and challenging the consistency of the plans with the NRCB approval.

“The prejudicial consequence of Section 619 on the Town (and its residents) is limiting local autonomy and the ability of council and planning authorities to make decisions in the best interests of residents,” according to the Town’s memorandum. “The impact of Section 619 may benefit TSMVPL, but it prejudices the Town.”

The Town’s argument stated the affordable housing and phasing were inconsistent with the NRCB decision and the LPRT not giving enough reasons for issuing its orders. It also argues the LPRT erred in giving itself jurisdiction to hear the appeals from TSMVPL.

The tribunal hearings lasted 15 days and had more than 110 hours of testimony as well as thousands of pages of evidence.

Bow Valley Engage had its intervenor status denied. The court also ordered the organization to pay TSMVPL $1,000 for its legal costs.