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Town of Canmore files leaves to appeal tribunal decision on Smith Creek, Three Sisters Village ASPs

The Town of Canmore formally filed a leave to appeal the Land and Property Rights Tribunal’s order for its decisions on the Smith Creek and Three Sisters Village area structure plans.
Canmore Civic Centre 1
Canmore Civic Centre on Thursday (April 21). JUNGMIN HAM RMO PHOTO

CANMORE – The Town of Canmore formally filed leaves to appeal the Land and Property Rights Tribunal’s order for its decisions on the Smith Creek and Three Sisters Village area structure plans.

The Town filed prior to the June 15 deadline and challenged the tribunal’s jurisdiction, argued it misinterpreted various clauses of Section 619 and ruled incorrectly that the two area structure plans (ASPs) were consistent with the 1992 Natural Resources Conservation Board (NRCB) decision.

The two four-page documents ask for leaves to appeal on nine different grounds to allow the Town of Canmore to file a formal appeal. The leaves to appeal asks for a stay on the LPRT decisions, meaning a pause on any development on the two ASP lands will be halted until a court rendering is made.

It also requests a stay on the LPRT’s decisions since the Town “will suffer irreparable harm if the stay is not granted and the balance of convenience favours granting a stay.”

The Town’s memorandum of argument – which outlines the specific reasons for appealing the decisions and the question of law or laws the appeal is being sought – has yet to be filed.

The application from the Town to seek permission to appeal stated the LPRT “failed to provide any or adequate reasons for the LPRT decision,” and it “exceeded its jurisdiction under Section 619 of the [Municipal Government Act] (MGA)” in ordering the Town to adopt the two ASPs since the MGA limits the LPRT’s authority in “ordering a municipality to amend a statutory plan.”

The application states the LPRT also misinterpreted Section 619 in its ability to “hear an appeal concerning a new statutory plan,” and it “failed to articulate or enunciate any legal test, principle or rational it applied in determining the critical issue, consistency as set out in Section 619 (2) of the MGA.”

An affidavit of Kathleen McKay, the legal assistant for Kelsey Becker Brookes and who represented the Town at the LPRT hearings, was also filed for the Three Sisters Village and Smith Creek hearings. The two filings outline the sequence of events from the LPRT hearings.

Town of Canmore leave to ap... by Greg

The two documents were filed June 13 and a first court date has been scheduled for July 19 in Calgary to be heard by a single judge.

While receiving a leave to appeal can at times be straightforward to provide judicial fairness for all parties, a successful appeal is far more difficult and costly.

If the Town were to lose an appeal, TSMVPL could also legally challenge to have the Town cover its legal fees.

The Town was permitted to ask for a leave to appeal under Section 688 of the MGA. The leave to appeal is one step, which if accepted by the court, would move to the Court of Appeals to be heard by a judge.

The appeal court is limited in the scope of what it can hear in way of new evidence and findings of fact.

The Outlook contacted three lawyers who focus on municipal law and estimates of four to 12 months for the leave to appeal to be decided were given. However, all three emphasized the difficulty in drilling down an exact time scope.

The Town set aside $750,000 in its 2022 budget. The Town’s solicitor, Adam Driedzic, told council June 7 if the leave to appeal was successful it’s possible more money would be needed and it would likely continue into 2023.

Town council voted unanimously to file the leave to appeal against the LPRT’s decisions for the Smith Creek and Three Sisters Village ASPs June 7.

The meeting was the first time council publicly addressed the LPRT’s decisions since they were released May 17. A workshop with council and the Town’s senior staff was held May 24.

Couns. Joanna McCallum, Karen Marra and Jeff HIlstad declared a pecuniary interest at the June 7 meeting because all are named in a civil lawsuit by TSMVPL launched last December. None of the three took part in public discussions at the meeting.

Town of Canmore leave to ap... by Greg

The civil lawsuit is for $161 million against the Town and the previous council. Thunderstone Quarries has a $63.5 million lawsuit against the Town since it owns lands that are part of the Smith Creek ASP.

At the June 7 meeting, Mayor Sean Krausert highlighted council isn’t “anti-development” but the focus needs to be on development that fits the needs of the community such as affordable and below-market entry-level housing.

In its decisions, the LPRT found both ASPs consistent with the 1992 NRCB decision.

The tribunal cited the 2020 Court of Appeal case Borgel v. Paintearth several times, which aimed to “prevent a municipality from blocking development that has been deemed in the public interest,” the appeal case stated.

The case was filed under Section 619 and provided the first legal precedent on the section in the MGA.

Throughout the tribunal hearings – which lasted 15 days and included more than 110 hours of testimony – both the LPRT and the NRCB emphasized that the 1992 NRCB decision has no expiration and is in effect, making the Town legally obligated to pass the two ASPs since they were found to be consistent with the provincial board.

Canmore was unable to “refuse the project altogether if it complies with the NRCB approval. Section 619 requires the Town to approve the application to the extent that it complies with the NRCB approval,” the Three Sisters Village ASP decision stated.

The tribunal also noted “there was no evidence disputing the reports and witness testimony, and the reports were prepared by qualified professionals; therefore, the LPRT accepts the evidence of the appellant’s witnesses that the Smith Creek ASP is consistent with the NRCB approval.”