2357596 ALBERTA LTD v ANTONIUK

The Appellant appealed an Applications Judge’s refusal to discharge a Caveat registered against a group of residential properties located in Edmonton’s Glenora neighbourhood (the “Site”). The Caveat restricted the Site to low-density residential development, while the Site had been rezoned to permit higher-density residential development.

Justice Akgungor confirmed that, under Rule 6.14(3), an appeal from an Applications Judge proceeds on the record but may also be based on additional evidence that is relevant and material. The threshold for admitting such evidence is low. The Court admitted supplemental Affidavit evidence regarding planning instruments enacted after the Applications Judge’s decision, as that evidence bore directly on the public interest analysis.

Applying the correctness standard, the Court held that the Applications Judge erred in finding no conflict between the Caveat and the Zoning Bylaw. It was impossible for new development on the Site to comply both with the Caveat’s density restrictions and the minimum density requirements under the Bylaw.

The Court further held that discharge of the Caveat was in the public’s interest, having regard to the current statutory planning framework and the Site’s location within a primary corridor near future mass transit. The Appeal was allowed and the Caveat was discharged.