CANMORE – Canmore council will adopt the Three Sisters Village and Smith Creek area structure plans (ASP), meaning development will soon begin in the southeastern part of town.
Town council will formally adopt the two ASPs Tuesday (Oct. 24) after the Court of Appeal found it had to accept the Land and Property Rights Tribunal’s (LPRT) decisions from May 2022 on the two ASPs as originally presented to Canmore council in February 2021.
Council will also have to adopt necessary amendments to the Town’s Municipal Development Plan.
A staff report highlighted council’s responsibility in adopting both the ASPs and MDP amendments since a court decision requires a council vote, meaning all council members will have to legally vote in favour.
“As only council can make bylaws, the Town is entirely dependent on council to achieve the municipal corporation’s compliance with the MGA (Municipal Government Act), the LPRT decisions, the Court of Appeal decision, and the mandamus adjournment agreement has,” the report stated. “Approving the ASPs is needed to meet the statutory and fiduciary duties of council and councillors. It is not an unfettered choice of council or individual councillors.
“There will be consequences to both a councillor and the Town if a councillor who participates in the meeting votes against approving the ASPs. Adoption of the ASPs is now required by the LPRT decisions, the outcome of a Court of Appeal decision, and an agreement between the Town and TSMVPL (Three Sisters Mountain Village Properties Limited) to adjourn the mandamus application.”
While some have bristled that a provincial tribunal could order the Town to adopt ASPs, the report emphasized that “municipalities in Canada are not their own order of government under the Constitution and receive their powers through ordinary provincial legislation.”
“Section 619 (1) and (2) refer to land use bylaws or subdivision divisions in the same way that they apply to statutory plans, including an area structure plan,” said Eran Kaplinsky, a law professor at the University of Alberta who specializes in municipal and planning law, told the Outlook Oct. 16. “Subsequent decisions of the Town will similarly need to respect the previous provincial approval.”
The report noted the Town and TSMVPL agreed to suspend the mandamus agreement if the Town chose not to pursue an appeal of Alberta’s Court of Appeal decision to the Supreme Court of Canada if the LPRT decisions were dismissed.
TSMVPL filed its mandamus application with the Court of King’s Bench in August 2022, which sought the court to order the Town to follow the ASPs as determined by the LPRT decisions.
The Town could’ve sought a stay of the LPRT decisions while it argued the Court of Appeal case, but it would’ve led to the Town being saddled with costs for delay in potential development that TSMVPL estimated to be slightly more than $200,000 a month.
“Any interest in further action, despite the mandamus agreement, is a nonstarter as the dismissal decision clearly leaves the Town with no reasonable prospect of obtaining leave to appeal the Court of Appeal decisions to the SCC,” stated the report.
The report further added the extreme unlikelihood of an appeal reaching the Supreme Court of Canada with it receiving between 478 and 577 applications each year and only granting about 16 to 26 being heard.
“The Town cannot and should not seek leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada,” highlighted the report.
“Additionally, the Town has no reasonable prospect of obtaining leave to appeal from the Supreme Court of Canada.”
The Court of Appeal dismissed the Town’s legal arguments to the LPRT decisions on Oct. 3. It noted “the Town [had] not established a basis upon which we can interfere with the tribunal’s decisions.”
The Town argued on nine grounds to have the Court of Appeal dismiss the LPRT decisions, focusing on the tribunal not properly applying Section 619 of the MGA retrospectively, the LPRT not giving adequate reasons for the ASPs moving forward and the ASPs not being consistent with the 1992 National Resources Conservation Board (NRCB) decision.
“Beyond arguing the tribunal lacked jurisdiction to hear the respondent’s appeal under Section 619 of the MGA, the Town resisted a finding of consistency by emphasizing that the NRCB preserved municipal discretion to ‘refuse the project’. … the tribunal did not accept the Town’s assertion that it had the authority to completely reject the project even if it complied with the NRCB Approval. Neither do we,” the appeal court’s decision stated.
The court added “the NRCB approval was expected to govern for several decades” and “the Town’s position, therefore, came down to an argument that the ASPs were simply too different from what was considered and approved by the NRCB to be considered consistent with the NRCB approval.”
However, with three councillors – Karen Marra, Joanna McCallum and Jeff Hilstad – all part of a civil suit brought by TSMVPL and Thunderstone Quarries, the report states they can self-assess a pecuniary interest to participate or abstain from the vote since they have previously done so at different times.
Council could have a “limited public hearing” but Town staff recommended against it since anything discussed at the public hearing wouldn’t change the outcome of legally having to adopt the ASPs.
According to the report, the Town has spent $546,000 of its $750,000 capital budget to address legal fees associated with TSMVPL. It noted about $500,000 is from ASP-related cases, but it had also spent $49,000 prior to the capital project being approved at the 2022 budget.
The Town also spent roughly $44,000 on contract workers to help with a Freedom of Information and Protection of Privacy Act brought forward by TSMVPL in 2021 and 2022.
The report stated the Town had spent about $579,000 for TSMVPL, not including staff time.
An Oct. 6 letter from Shores Jardine LLP, the law firm representing TSMVPL, asked for $129,600 – which was less than 40 per cent of TSMVPL’s legal fees for the appeals – be paid for by the Town.
The letter stated the Alberta Rules of Court set the fee schedule and the 2021 Court of Appeal case McAllister vs. City of Calgary “endorsed that a successful party is to be partially indemnified to approximately 40-50 per cent of their costs.”
It noted evidence presented at the LPRT hearings had TSMVPL spending more than $11 million to prepare the two ASPs.
If the Town chose to not pay the request, TSMVPL could seek a cost direction from the court.
The LPRT ordered the Town to adopt both ASPs in May 2022. The decisions ruled entirely in TSMVPL’s favour and came after 15 days of hearings with more than 110 hours of testimony, more than 5,000 pages of evidence presented, more than 3,000 pages of transcripts and close to a dozen experts being questioned by the five-person tribunal.
The Smith Creek ASP would see an estimated population of 2,200 to 4,500 people and includes about 1,000 and 2,150 residential units. The ASP includes upwards of 75,000-square-feet of light industrial and business space and roughly 125,000-square-feet of retail and commercial space for local services.
Three Sisters Village ASP could have between 3,000-5,000 residential units – which would depend on the bonus density element – and between 5,500-10,000 visitors and permanent population. It would include up to 602,000-square-feet of retail and business space and about 190,000-square-feet of indoor recreation and entertainment, with 75 hectares of open space and 10 per cent of affordable housing.
The ASP covers about 169 hectares.
The adoption of the ASPs and MDP amendments, however, will bring an end to other legal cases with TSMVPL since they’d no longer be needed.
TSMVPL brought forward a judicial review application for each of the Three Sisters Village and Smith Creek ASPs in 2021, but adjourned the cases to prioritize the LPRT hearings and Court of Appeal case.
The mandamus application, which is also adjourned, would also be unnecessary with the ASPs and MDP amendments receiving adoption.
However, the civil suit against the Town by TSMVPL for $161 million and Thunderstone Quarries for $63.5 million could continue. The report noted it’s in the records compilation stage and the Town has its case being defended by its insurer.
“Adopting the ASPs will conclude a major piece of the litigation between the Town and TSMVPL and will improve the chances of concluding multiple other actions at lower cost,” the report stated, adding it would also free up staff time for other requirements.
Though possible for a council member to vote against the LPRT decisions, it would put the Town and council in a rare position of being against both the tribunal orders.
“It would be very rare, almost unheard of, for council not to respect an order with a tribunal,” said Kaplinsky. “Both the tribunal and the Town of Canmore are creatures of the province of Alberta.”
