Failure to consider permit evidence warrants permission to appeal: Alberta Court of Appeal

The Alberta Court of Appeal has granted permission to appeal a decision that failed to reference any evidence related to the existence a development permit, in a dispute over the conditions of the permit.

In 836663 Alberta Ltd v. Chinook Intermunicipal Subdivision and Development Appeal Board, 2022 ABCA 249, Ken and Linnet Segboer were directors and shareholders of 836663 Alberta Ltd (836). 836 owned land in Fort McLeod, Alberta.

In 2020, the 836 leased the lands to Shinah House Foundation for the purpose of operating a non-profit home for Indigenous foster children. Later, they were advised by the Town of Fort Macleod that the land was no longer being zoned for a group home and they were asked to apply for a new development permit. The permit was issued in late 2020.

A year later, the town issued a stop order alleging that 836 failed to comply with outstanding conditions. 836 sought revocation of the stop order, arguing that they never discontinued the legal non-conforming use of the land as a group home. The Chinook Intermunicipal Subdivision and Development Appeal Board (SDAB) denied the appeal.

836 sought permission to appeal, arguing that the SDAB erred in law by failing to consider appropriate evidence in arriving at its conclusion.

The appellate court granted the application.

Decisions must consider all evidence

“The test for permission to appeal … requires the applicant to demonstrate that the appeal involves a question of law or jurisdiction of sufficient importance to merit further appeal, and the proposed appeal must have a reasonable chance of success,” said the court.
The primary issue before the SDAB was the validity of the development permit, because if it was valid, then it would be a defence to the stop order, said the court.

Upon reviewing the decision as a whole, the appellate court found that the SDAB made no reference to any of the applicants’ evidence nor to the Municipal Government Act, RSA 2000, c M-26 regarding non-conforming use. Its findings were also unclear, the decision lacked analysis, and, ultimately, the reasons at issue did not adequately reflect the basis upon which it was reached, said the court in granting the permission to appeal.