CANMORE – A decisive decision from Alberta's Court of Appeal on Section 619 of the Municipal Government Act could give a measure of precedence and clarity for similar challenges in future years.
While it may impact other potential court challenges, it leaves no doubt that Three Sisters Mountain Village Properties Limited's (TSMVPL) Three Sisters Village and Smith Creek area structure plans (ASP) will move ahead.
Canmore council will adopt the two ASPs Oct. 24 after the Court of Appeal ruled the Land and Property Rights Tribunal (LPRT) decisions from 2022 were to be followed by the Town of Canmore.
“This is one of those examples of provincial interests trumping local interests,” said Eran Kaplinsky, a faculty of law professor with the University of Alberta who teaches municipal and planning law.
“The only thing before the court is whether a tribunal or appeal board has made a legal error or exceeded its jurisdiction, so the precedent this case sets is on very narrow ground that the Town was allowed to appeal.
"I would say that the Court of Appeal affirms the tribunal's authority in interpreting consistency under the MGA (Municipal Government Act) and what evidence should be taken into account when determining whether the Town’s decision or plan is consistent with provincial approval.”
Kaplinsky said the Court of Appeal ruling to uphold the LPRT decisions provides clarity not only for the ASPs but as they work through the remainder of the planning stages.
“Section 619 (1) and (2) refer to land use bylaws or subdivision divisions in the same way that they apply to statutory plans, including an area structure plan,” he said. “Subsequent decisions of the Town will similarly need to respect the previous provincial approval.”
Scott Johnston, the press secretary for the Ministry of Municipal Affairs, said the Court of Appeal, which is the highest court in Alberta, ruled that the tribunal followed legislated processes appropriately in this case.
“The decision was made by the independent Land and Property Rights Tribunal, which is committed to supporting decisions that are fair, unbiased, well-reasoned, and thoughtful,” he said in an email. “In deciding these matters, the tribunal followed the legislated process set out in Section 619 of the Municipal Government Act, which included a public hearing where parties had the opportunity to put forward their concerns and arguments.”
While Section 619 came into existence after the 1992 Natural Resources Conservation Board (NRCB) decision, the court found the LPRT’s interpretation of Section 619 was consistent with the law.
“We cannot disturb the tribunal’s determination that the NRCB approval is continuing, and the reasonableness standard of review prevents this court from interfering with the tribunal’s interpretation of the law in question,” the appeal court’s decision stated.
The appeal court noted TSMVPL argued the LPRT’s “decision is based on an internally coherent and rational analysis and is justified in relation to the facts and law.”
“The tribunal reasonably declined the invitation to revisit the NRCB public interest determination,” according to the appeal court’s decision. “That is not something the tribunal has jurisdiction to do. It is also important to remember that the NRCB approval was expected to govern for several decades.”
“The Town’s position therefore came down to an argument that the ASPs were simply too different from what was considered and approved by the NRCB to be considered consistent with the NRCB approval. The tribunal disagreed, with reasons that adequately explain its reasoning process when they are read in the context of the proceedings. The tribunal considered the evidence and argument it heard and addresses all the consistency issues raised by the Town in an intelligible and transparent way.”
“The Town’s argument that the tribunal took into consideration irrelevant evidence in concluding the ASPs were consistent with the NRCB approval is without merit,” stated the appeal court’s decision.
“The tribunal had the benefit of a considerable body of evidence – including expert evidence – addressing the question of consistency between the NRCB approval and the Three Sisters ASP as submitted and considered by council on Feb. 9, 2021.”
The Court of Appeal heard arguments from all sides April 3. The Town, Stoney Nakoda First Nation, the LPRT, NRCB and TSMVPL were part of the legal hearing.
The basis for the Town’s arguments included nine grounds, claiming the LPRT failed to apply Section 619 of the MGA retrospectively, the LPRT failed to give adequate reasons for the ASPs moving forward and the ASPs weren't consistent with the 1992 NRCB decision.
During the appeal hearing, Justices Frans Slatter, Anne Kirker and Beth Hughes raised issues with the Town’s argument surrounding the ASPs consistency and the NRCB decision, Section 619 of the MGA, the 2018 terms of reference and if arguing the passage of time was a collateral attack on the NRCB.
“The NRCB approval could have been, but was not, time limited. … No one appealed it,” the appeal court decision stated.
“Neither Town council nor Town administration suggested the NRCB approval was no longer valid. On the contrary, the terms of reference made clear that the parties were proceeding on the basis that pursuant to Section 619 of the MGA, the Town would be obligated to approve the Smith Creek and Three Sisters ASPs if they were consistent with the NRCB approval.”
The court decision emphasized that in the 2018 terms of reference, the Town had not said the NRCB approval was no longer relevant.
The appeal court noted the Town had “resiling” – meaning it backed away from a previous agreement – from the terms of reference in its arguments to the Court of Appeal.
“Municipalities and developers will often come to some sort of understanding, but when it comes to vote council is not required to vote in any particular manner even if it’s contrary to previous understanding with the developer,” Kaplinsky said.
While TSMVPL could potentially challenge costs associated with their legal fees, the Town was using legal measures that allowed for a municipality to appeal the LPRT decisions.
A party attempting to regain legal fees would have to show bad faith had been undertaken by the other organization involved in the legal case and the onus would be on them to prove it took place.
Though rare, it’s not unheard of – albeit quite difficult.
The most recent successful legal case in Canada was in Winnipeg when the Manitoba Court of King’s Bench awarded developer Andrew Marquess $5 million after finding the City of Winnipeg had deliberately slowed progress for a 1,900-unit residential development.
As of June 20, 2023, the Town’s litigation costs for TSMVPL-related cases were $591,000.
Banff-Kananaskis MLA Sarah Elmeligi said Thursday (Oct. 12) after an appearance by Premier Danielle Smith at the Bow Valley Builders and Developers Association monthly luncheon, it was time to move forward given the court decision.
However, she said it was important for the province to provide added infrastructure funding to help with the growth of the Town.
“It seems to me the time to move forward on the decision has been made and if this development must happen it must serve our community, so there’s no doubt that the community of Canmore is under increasing pressure with infrastructure, healthcare wise to welcome the world here,” she said.
“We are a small town and we welcome millions of people, so if this development must happen it must serve our community. The province must follow up with support for improved infrastructure. It could be water and sewage, roads or anything, but also increased support for our healthcare system, which is a rural healthcare system that serves more of an urban population.”
David Taylor, the president of TSMVPL, said in an Oct. 3 media release the company was happy to continue with the two ASPs.
“We appreciate the court's due diligence in making this decision and look forward to moving ahead in the coming weeks and months to help enhance the Canmore experience through Three Sisters Mountain Village,” he said.
Since the decision, the application for the first phase of the Three Sisters Village ASP has been filed with the Town, which would be followed by a pre-application meeting. The application for the first phase of the Smith Creek ASP will be made in the coming weeks.
Chris Ollenberger, director of strategy and development for TSMVPL, said the development is anticipated to begin in 2025.
Last January, the Town and TSMVPL agreed to a pause on the mandamus application, which had TSMVPL asking the Court of King’s Bench to direct the Town to implement the LPRT’s decisions on the ASPs.
Part of the agreement had the Town agreeing to abandon any future appeals, though the Supreme Court of Canada was the last remaining option. In reaching the agreement, the Town agreed to uphold the LPRT’s decisions and TSMVPL paused its mandamus application.
The Town could have applied for a stay in the LPRT’s decisions, but it would have had to handle a monthly financial burden determined by the court. Without a stay in the LPRT’s decisions, the two ASPs have been legally in place since the tribunal’s ruling in 2022.
Following a brief in camera session of council at its Tuesday (Oct. 3) meeting, Canmore Mayor Sean Krausert said the Town would not be seeking a leave to appeal with the Supreme Court of Canada.
Town council met Tuesday (Oct. 17) for a 90-minute in camera session to receive legal advice. The Town has 30 days from the release of the decision to adopt the two ASPs.
TSMVPL continues to have a $161 million lawsuit against the Town and the previous council. Thunderstone Quarries also has a $63.5 million lawsuit against the Town since it owns lands in the Smith Creek ASP.
The appeal hearing came after the LPRT ordered the Town to adopt both ASPs in May 2022. The two decisions ruled entirely in TSMVPL’s favour, with the tribunal highlighting the 1992 NRCB decision has no expiration date for development to take place.
The LPRT hearings lasted 15 days with more than 110 hours of testimony, more than 5,000 pages of evidence presented, more than 3,000 pages of transcripts and nearly a dozen experts presenting and being questioned by the five-person board.
The Smith Creek ASP would see an estimated population of 2,200 to 4,500 people and includes about 1,000 and 2,150 residential units. The ASP includes upwards of 75,000-square-feet of light industrial and business space and roughly 125,000-square-feet of retail and commercial space for local services.
Three Sisters Village ASP could have between 3,000-5,000 residential units – which would depend on the bonus density element – and between 5,500-10,000 visitors and permanent population. It would include up to 602,000-square-feet of retail and business space and about 190,000-square-feet of indoor recreation and entertainment, with 75 hectares of open space and 10 per cent of affordable housing.
The ASP covers about 169 hectares.
With the Court of Appeal upholding the LPRT decisions, Canmore council will legally have to adopt the TSMVPL ASPs in the 30-day timespan.
“It would be very rare, almost unheard of, for council not to respect an order with a tribunal,” Kaplinsky said. “Both the tribunal and the Town of Canmore are creatures of the province of Alberta.”
