Casual legal: Appealing the unappealing
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
By Tina Pashootan
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Appealing a decision made by a Subdivision and Development Appeal Board (“SDAB”) in Alberta takes a unique legal route by proceeding directly to the Alberta Court of Appeal (“ABCA”) for leave to appeal before an appeal can actually proceed. The rules for getting an SDAB appeal heard are strict, ensuring that the ABCA reviews only serious legal missteps involving a question of law or jurisdiction.
Appeals to the ABCA are not an automatic right. The process begins with obtaining permission from a single judge of the ABCA, who must first determine whether the appeal should be heard by the Court, who typically sit in three-person judicial panels. This application must be filed and served within 30 days of the original SDAB decision. The hearing to determine permission is brief, allowing up to 30 minutes for oral argument, supported by a concise 10-page factum. The Board and the municipality are always notified of this application and are entitled to participate. To succeed in a leave to appeal application, every proposed ground of appeal presented must meet a three-part test1:
It must be a question of law or jurisdiction – This means the argument must point to the Board misinterpreting a legal rule or improperly exercising its legal authority. This includes issues such as an allegation of bias, which is classified as a jurisdictional problem.
It must be of sufficient importance – The issue must possess broad relevance, such as potentially affecting planning procedures across the province or involving the interpretation of a statute that applies province-wide. Matters that are "very fact specific will not be enough".
It must have a reasonable chance of success – The merits of the case are "weighed on a standard of correctness," meaning the court reviews the SDAB's legal conclusions with a non-deferent standard.
Ultimately, a successful appeal must demonstrate that the SDAB made a genuine mistake in applying its powers. Examples of potential errors recognized as legal grounds for appeal include: the improper exercise of discretion; actions taken in bad faith or for an improper purpose; failing to consider necessary factors; taking irrelevant factors into consideration; engaging in discrimination; fettering (improperly limiting their own decision-making authority); or improper sub-delegation.
If the Court ultimately finds the appeal successful, it has the authority to either (1) confirm, (2) vary, (3) reverse, or (4) cancel the original SDAB decision.2 If the decision is cancelled, the Court refers the issue back to the SDAB and provides directions on how the matter must be reheard in accordance with the Court’s instructions.3
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1.800.661.7673 or email casuallegal [at] abmunis.ca (casuallegal[at]abmunis[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca (riskcontrol[at]abmunis[dot]ca), or call 310.MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
