The Applicant sought leave to Appeal a decision of the Respondent Subdivision and Development Appeal Board under section 688 of the Municipal Government Act, RSA 2000, c M-26. The Applicant filed an Affidavit in support of his Application which exhibited several instruments which affected the title to his property and were at issue in the underlying dispute. The Respondent Appeal Board challenged the admissibility of the Applicant’s Affidavit.

Justice Wakeling noted that Rule 14.40 permits an Applicant to file an Affidavit in support of an Application for permission to Appeal. Wakeling J.A. noted that an Applicant may do so where either the Appeal alleges the impugned Decision was biased or breached the rules of natural justice, or the Applicant relies on the Affidavit to argue that the question of law at issue is “important to the applicant or other segments of the community”.

Justice Wakeling found that the instruments exhibited in the Applicant’s Affidavit were common to a large number of lots besides the Applicant’s. As such, other land owners would be interested in the resolution of the legal questions engaged by the Applicant’s Appeal. The Applicant’s Affidavit therefore fell within the second permissible category of Affidavits on Applications for leave to appeal. The Court granted the Application for leave to appeal.