CASUAL LEGAL: The Supreme Court Changes How Courts Conduct SDAB Appeals

Attention: AMSC Members – Please distribute to all appropriate personnel

By Michael E. Swanberg

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

On December 19, 2019, the Supreme Court of Canada released two decisions which changed how courts conduct statutory appeals (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and Bell Canada v. Canada (Attorney General), 2019 SCC 66). In these decisions, the Supreme Court conducted a radical overhaul of the law in this area which will impact appeals to the Alberta Court of Appeal from decisions made by Subdivision and Development Appeal Boards (SDABs).

Previously, the Supreme Court had directed that courts show “deference” to decisions made by administrative tribunals when reviewing those decision in a statutory appeal. This means the Appellate Court would review the reasons given by the tribunal to determine whether the tribunal’s decision fell within “a range of possible and acceptable outcomes” – if so, then the Appellate Court would uphold the decision, even if the Court might have come to a different conclusion.

The Supreme Court’s decisions in Vavilov and Bell Canada have altered that framework substantially. Under the revised framework, a distinction is drawn between statutory appeals, and when courts review administrative decisions on judicial review. If the statute provides for a right of “appeal” (instead of “judicial review”), the new framework indicates less deference is to be shown by the Appellate Court to the administrative tribunal on questions of law. In particular, the Court may substitute its own legal analysis in place of the tribunal’s, without having to show deference to the tribunal’s analysis.

This new framework for conducting statutory appeals will impact appeals of SDAB decisions to the Court of Appeal. Section 688 of the Municipal Government Act allows parties to appeal questions of law or jurisdiction to the Court of Appeal. Under the new framework set by the Supreme Court in Vavilov and Bell Canada, the Court of Appeal will no longer be required to show deference to the SDAB in these appeals. Instead, the Court of Appeal will be able to conduct its own legal analysis, and potentially disregard the legal analysis conducted by the SDAB, if the Court determines it would have reached a different legal conclusion based on the SDAB’s findings of fact. While deference will continue to be shown to findings of fact made by the SDAB, the Court of Appeal is no longer required to show any deference to the SDAB’s legal analysis.

This new framework increases the uncertainty in proceeding with SDAB appeals, since parties will be free to present alternate legal arguments for consideration of the Court. Since the Court of Appeal is no longer constrained by the legal conclusions reached by the SDAB, there is greater uncertainty in how the Court of Appeal might deal with any particular legal issue on appeal.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[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 Will Burtenshaw, Senior Director, Risk & Claims, at 780-431-4525, or toll-free at 310-AUMA (2862) or via email at wburtenshaw [at] auma.ca (wburtenshaw[at]auma[dot]ca). Any Regular or Associate member of the AUMA can access the Casual Legal Service.

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.