14.40: Applications to single appeal judges
14.44: Application for permission to appeal

Case Summary

The Applicant sought permission to Appeal a decision of the Subdivision and Development Appeal Board (the “SDAB Decision”). The SDAB Decision granted the Applicant’s neighbour a development permit for the construction of an accessory dwelling unit. By the time this Application was heard, the Applicant and Respondents had consented to adjourn the Application for several months. In this Decision, the Court commented on an anomaly arising from the language of the Municipal Government Act, RSA 2000, c M-26 (the “Act”).

The Court expressed concern that the individual to whom the development permit was granted was not named as a Respondent to the Applicant’s Application for permission to Appeal. The Court noted, however, that the Act does not strictly require that such a Party be named. Justice Slatter commented that this was an unfortunate anomaly in the drafting of the Act, given the fundamental principle that the Court will not adjudicate on legal rights unless all affected Parties are given appropriate notice of the proceedings. The Court encouraged Parties faced with similar circumstances to name the permit holder or landowner as a Respondent to avoid appearances where no remedy can be granted by the Court because of the absence of an affected Party.

Beyond that anomaly, the Court observed that the Applicant had not filed and served his Affidavit and Memorandum of Argument simultaneously with his Application, as is required for any Application to a single Appeal Judge under Rule 14.40. Justice Slatter noted that on occasion an Application is filed and accepted by the Registry without the accompanying materials for the purposes of preserving the deadline to apply. However, Slatter J.A. also noted that the Applicant had not sought to preserve a time limitation for permission to Appeal as available under Rule 14.44(3).

In the result, the Court granted the adjournment which had been consented to on the basis that it was required in any event such that the permit holder may be given notice; the Court also ordered that the Application be amended accordingly. Finally, the Court ordered that the Applicant’s Memorandum of Argument and any accompanying material be filed and served within a week.

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