wakeling jA

14.40: Applications to single appeal judges
14.45: Application to admit new evidence
14.70: No new evidence without order

Case Summary

The Applicant, Bergstrom, sought permission to appeal the Decision of the Respondent town’s Subdivision and Development Appeal Board under Section 688(2) of the Municipal Government Act, RSA 2000, c M-26 (“MGA”). The Respondent had revoked the Applicant’s permit for a home-based business, issuing brief Reasons for Decision after a Hearing which the Applicant did not attend. The Applicant challenged the sufficiency of those reasons.

The Applicant submitted an Affidavit in support of her Application pursuant to Rule 14.40(1)(b). Wakeling J.A. noted that, while 14.70 of the Rules of Court and Section 689(1) of the MGA collectively state that the Record on Appeal will consist of only the evidence before the Board, those rules do not apply to an Application for Permission to Appeal. Affidavit evidence is permissible on an Application for Permission to Appeal for two distinct purposes: first, to set out facts challenging the procedural fairness of the process, including allegations of bias; and second, to establish that a question of law for which the Applicant seeks permission to appeal is of importance to the Applicant or to the community. Justice Wakeling determined that the Applicant’s Affidavit was merely an attempt to introduce evidence that could have been presented to the Board, and thus was an attempt to circumvent Rule 14.70. In order to do this, the Applicant would have had to file an Application under Rule 14.45 for permission to adduce new evidence. The Affidavit was therefore inadmissible, as it was submitted for an improper purpose.

Wakeling J.A. held that the Applicant failed to meet the test set out in Section 688(3) of the MGA, and therefore the Application was denied.

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