Alberta Court of Appeal grants rehearing of decision amending conditions for gravel pit development

The Marshall companies had to meet certain “prior to issuance” conditions before the planning commission would finally approve the development and issue the development permit. The two companies challenged some of these conditions via an appeal to the tribunal.

In August 2022, the Land and Property Rights Tribunal issued its first decision modifying some of the challenged conditions. The tribunal confirmed the requirement for the parties to negotiate a development agreement.

The parties did not appeal the first decision. However, over the next months, they disagreed about whether the Marshall companies met the prior to issuance conditions. The planning commission ended up refusing to issue the development permit.

The Marshall companies again appealed to the tribunal. They claimed that they met all prior to issuance conditions.

In September 2023, the tribunal made its second decision. Without hearing further from the parties, it varied two prior to issuance conditions. Specifically, it removed the requirements for the Marshall companies to enter a development agreement with the appellant and to provide auditing of all sand and gravel shipments.

In the present appeal, the appellant challenged the tribunal’s second decision and applied to admit fresh evidence. This proposed evidence included:

• an affidavit stating that, if the appellant had known that a rehearing was possible, it could have taken steps, made submissions, and given evidence addressing whether it was appropriate to amend or remove the initial conditions
• engineering reports
• a history of contempt proceedings that allegedly had bearing on the continuation of the auditing and development agreement conditions

Land tribunal to rehear

The Court of Appeal of Alberta allowed the appeal, returned the matter to the tribunal for a rehearing, and permitted the appellant to present fresh evidence. The appeal court ruled that the tribunal denied the appellant’s right to procedural fairness.

First, the appeal court addressed the issue of procedural fairness. The court noted that the tribunal’s duty of procedural fairness included informing the parties that it had plans to reconsider its first decision and giving the parties an opportunity to address the issue of possible amendments to the conditions.

The tribunal should have decided the issue of whether the Marshall companies met the initial prior to issuance conditions, the appeal court said. Instead, the tribunal converted the appeal into a rehearing of its first decision and amended the conditions, the court found.

The appeal court held that the tribunal failed to notify the parties that it was planning to reconsider its first decision and amend the conditions and failed to give the appellant any opportunity to present evidence or be heard on the issue of whether the tribunal should amend the conditions and, if yes, to what extent.

Next, the appeal court addressed the proposed fresh evidence. It decided that the appellant met the test to admit fresh evidence stated in Palmer v The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759. The evidence appeared relevant and credible and might affect the result, the court said.

The appeal court added that the proposed evidence supported the appellant’s claim that it could have presented more evidence and arguments against amending the conditions if it had been aware that the tribunal was considering that possibility. The court did not blame the appellant for failing to present this evidence earlier as it did not know that this was relevant at the time.

Lastly, the appeal court noted that the tribunal’s second decision interfered with the appellant’s ability to administer general provincial laws in the public interest when it amended previously imposed conditions that the appellant had been administering without providing an opportunity for it to justify maintaining those conditions.