alberta take five february 2013

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February 2013

ALBERTA EDITION

Inside this Issue:

Real Property; Resulting Trust; Presumption of Resulting Trust

Utilities; Electricity; Alberta Utilities Commission; Transmission Line Approval; Critical Transmission Infrastructure; Public Interest Component

Real Estate; Condominiums; Agreement of Purchase and Sale; Time of the Essence Clause

Municipal Law; Land Development Approval; Administrative Law; Reasonable Apprehension of Bias

First Nations; Métis; Aboriginal Fishing Rights; Judicial Review

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The appellant Roman Catholic

Bishop of the Diocese of Calgary (“Diocese”) and the respondent Catholic Charities Clothes Bank of Lethbridge (“Clothes Bank”) disputed ownership of certain real properties. The first of these properties was the land and building situated at 118 5th Street South (“5th Street property”), which was purchased by

the Clothes Bank in 1983. The second property was located at 1802 2nd Avenue (“2nd Avenue property”), which was purchased by the Clothes Bank in 1995. The Clothes Bank purchased the properties using its own funds and a mortgage on the 2 Avenue property, under which there remained approximately $165,000 still owing. Title to both of the properties was registered in the name of the Diocese. When the Diocese refused the Clothes Bank’s request to approve the sale or refinancing of these properties, the Clothes Bank brought its application for a declaration of ownership and transfer of titles to it. The application judge ruled in favour of the Clothes Bank, declaring that the Diocese held certain properties in trust for the Clothes Bank and ordered the Diocese to convey title to the properties to the Clothes Bank within 30 days of the filing of that order. The Diocese appealed.

Catholic Charities Clothes Bank of Lethbridge v Roman Catholic Diocese of Calgary, 2012 ABCA 390Areas of Law: Real Property; Resulting Trust; Presumption of Resulting Trust

~Diocese not holding realty in resulting trust for benefit of Charities Clothes Bank~

BACKGROUNDCLICK HERE TO ACCESS

THE JUDGEMENT

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APPELLATE DECISION

Catholic Charities Clothes Bank, (cont.)

The appeal was allowed. The trial

judge made a number of errors, both legal and factual. The central issue was whether the Diocese owned the properties in question outright, or whether it held title to the properties in trust for the Clothes Bank. There was no evidence of an express trust. If there was any trust, it must be a resulting trust. The presumption of resulting trust will only apply to tip the scale in the event that the trial judge, after considering all of the evidence, is unable to reach a conclusion on the transferor’s intention.

The evidence substantiated the conclusion that it was the intention of the Clothes Bank to transfer ownership of the properties in question to the Diocese at the time that the properties were registered in the name of the Diocese. When the Clothes Bank was incorporated in December 1982, the objects of the society specifically stated that it shall be operated under the auspices of the Roman Catholic Bishop of the Diocese of Calgary through the Deanery of Lethbridge. The Clothes Bank’s actions also demonstrated that it was acting under the auspices of the Diocese. It specifically sought the approval of the Bishop for the purchase of the 5th Street property. The purchase of the 2nd Avenue property involved a loan from the Diocese’s Central Fund and thus the Clothes Bank sought approval from the Diocese for that purchase as well. If the title was to be held in trust for the Clothes Bank, there would at least have been some mention of that, or even a trust declaration prepared. But there was not. This gave credence to the argument that full title to these properties was given to the Diocese, which was not simply to hold that title in trust for the Clothes Bank.



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The respondent Alberta Utilities

Commission, the regulatory body charged with considering and approving the construction and operation of new electrical transmission facilities in Alberta, approved an application to construct and operate the Heartland project. The project was the first project for consideration designated as “critical transmission infrastructure”. In November 2009, the Alberta legislature enacted the Electric Statutes Amendment Act, 2009, SA 2009, c. 44, which modified the regulatory approval process for some major electrical transmission projects. In particular,

the Act introduced the concept of “critical transmission infrastructure”, infrastructure identified as “required to meet the needs of Alberta”. The appellants Stuart Shaw and Karen Shaw appealed to the Court of Appeal, submitting that the Commission continued to enjoy a broad public interest mandate when considering transmission facility applications generally, and that that mandate has not been circumscribed for critical infrastructure projects by the new legislation. They submitted that the new statutory framework required the Commission to undertake a full and purposive exploration of all the socio-economic impact of the proposed project before granting approval, regardless of whether or not the project was deemed “critical” by the government.

BACKGROUND

Shaw v Alberta (Utilities Commission), 2012 ABCA 378Areas of Law: Utilities; Electricity; Alberta Utilities Commission; Transmission Line Approval; Critical Transmission Infrastructure; Public Interest Component

~Alberta Utilities Commission not required to conduct full public policy review in application for project designated as “critical transmission infrastructure”~

CLICK HERE TO ACCESS THE JUDGEMENT



February 2013


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Shaw v Alberta (Utilities Commission), (cont.)

APPELLATE DECISION

The appeal was dismissed. Section

13.1(2) of the Hydro and Electric Energy Act, RSA 2000, c. H-16, provides that “[t]he construction, connection and operation of a transmission line or part of a transmission line that is designated as critical transmission infrastructure is required to meet the needs of Alberta and is in the public interest.” By designating a transmission

development as critical, and thereby removing the assessment of the need for that development from the Commission, the government has clearly determined that the project and the technical solution specified in the designation were both needed and in the public interest. To read some portions of the legislative scheme as requiring or entitling the Commission to revisit the question of whether the development of a designated project was in the public interest was inconsistent with that determination. When the government designates a transmission development as critical, the legislature intended that government would assume sole responsibility for determining that the development was necessary and in the public interest.

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Sunderji v. Germain Residences Ltd., 2012 ABCA 389Areas of Law: Real Estate; Condominiums; Agreement of Purchase and Sale; Time of the Essence Clause

~Vendor of condominium property not contravening “time of essence” clause in postponing closing date~

BACKGROUND

In 2007, the appellant Dinmohamed

Sunderji (“Sunderji”) purchased a yet to be built condominium. In June 2010, he refused to close and sued for rescission and return of his deposit. He claimed that the respondent Germain Residences Ltd. (“Germain”) had breached the “time of the essence” clause in the purchase agreement.

Germain set the original possession date for June 21, 2010, and gave the required 30-day notice in writing. Germain then changed the possession date to June 28, 2010, and advised Sunderji in writing. The reason for the postponement was attributable to the City of Calgary’s delay in issuing the unit’s occupancy permit. The City was unable to issue the occupancy permit until June 24, 2010.The respondent counterclaimed seeking damages for the appellant’s failure to close. Both parties brought summary judgment applications. A Master of the Court of Queen’s Bench granted summary judgment in favour of Germain and dismissed Sunderji’s application. An appeal to a Justice of the Court of Queen’s Bench was dismissed. Sunderji appealed.


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Sunderji v. Germain Residences Ltd., (cont.)

APPELLATE DECISION

The appeal was dismissed. Article 6(a)

of the agreement provides in part: “The estimated possession date for the Unit is October 1, 2009 which date is an estimate only. The Vendor does not guarantee that possession will be available on the estimated possession date. The actual possession date (the “Possession Date”) shall be established conclusively by the Vendor by notice in writing to the Purchaser at least 30 days prior to the Possession Date … The Purchaser acknowledges that the Possession Date may be delayed by fire, strikes, weather, inability to obtain goods or labour, acts of God or other occurrences beyond the reasonable control of the Vendor ... The Vendor shall not be responsible for any postponement of the

Possession Date, or any consequential damage caused thereby, due to any reason, including without limitation any of the foregoing possibilities or matters.” Article 28 provides: “Time is of the essence of this Contract. No extension of time permitted or agreed to by the Vendor shall be held or construed to be or effect a waiver of this provision.” The parties can provide for unilateral changes of closing dates or possession dates and the court must look at the entire agreement to determine the parties’ intentions. Provisions for the extension of possession dates can co-exist with time of the essence clauses. Article 6(a) gave Germain a broad right to change the possession date and Germain had properly exercised that right. Purchase agreements for pre-build condominiums are typically structured so as to permit the developer to extend the closing date when necessary, given the likelihood of construction and regulatory delays. Whether the reason for the delay was attributable to extraneous factors or the vendor’s conduct was irrelevant. Article 6(a) states that, if for any reason the vendor is unable to grant possession on the possession date, it may be postponed.



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Beaverford v Thorhild (County No. 7), 2013 ABCA 6Areas of Law: Municipal Law; Land Development Approval; Administrative Law; Reasonable Apprehension of Bias

~Land development approval board member having history of opposition to applicant’s proposal; reasonable apprehension of bias established~

The appellant Robert Beaverford

applied to the County of Thorhild’s Municipal Planning Commission for a gravel extraction development permit near Long Lake. The application was denied, and Beaverford appealed that decision to the respondent County of Thorhild No. 7 and County of Thorhild No. 7 Subdivision and Development Appeal Board (“SDAB”). Among the SDAB panel members who heard Beaverford’s appeal was Croswell, a municipal councilor who had previously communicated opinions about gravel pits and gravel extraction within Thorhild County. At the SDAB hearing, Beaverford asked that

Croswell be disqualified or removed from the panel on the ground that his prior comments about the subject matter created a reasonable apprehension of bias on his part that would affect the SDAB. To support his bias allegation, Beaverford provided the SDAB panel with copies of postings from Croswell’s Facebook page. These postings contained pictures of a different gravel pit, near where Beaverford’s proposed pit would be located. Croswell openly opposed that development by 541466 Alberta Ltd., the same company that Beaverford had retained as a consultant. Croswell had added a photo caption that described the site in part as “a waste land for private profit”. Beaverford also produced a flier and an open letter that Croswell had written to his constituents. The flier explained that Croswell had introduced a motion at his last council meeting suggesting that the County prohibit any further gravel extraction, unless it was for the County’s own use. The SDAB rejected Beaverford’s contention, writing: “With respect to Mr. Croswell, the evidence was that he raised a number of questions in relation to another proposed gravel pit in the area. There was no evidence before the Board that Councillor Croswell had made any comments or taken a position with respect to this proposed gravel pit. In light of this, the Board is of the view that it does not have evidence before it that would give rise to a reasonable apprehension of bias with respect to this appeal.” Beaverford appealed.

BACKGROUNDCLICK HERE TO ACCESS

THE JUDGEMENT



February 2013


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The appeal was allowed. SDAB is not exclusively

devoted to polycentric issues of policy, and its decisions directly impact legal and property rights of parties and the development writ large of a community, so it must exhibit a high degree of impartiality. Croswell submitted as a test for bias that a reasonable apprehension of bias may be found to arise only where a person has made statements or actions that were directly targeted

at a specific person or development whose appeal they were subsequently required to adjudicate. However, he did not cite any authority where a test of targeted adversity was specified as the rule for reasonable apprehension of bias in municipal governance situations. A reasonable person could infer from the circumstances as a whole that Croswell had influence over the reasoning process of the SDAB panel. Under those circumstances, an apprehension of bias on the part of the SDAB can be reasonably thought to arise from the participation of Croswell.

APPELLATE DECISION

Beaverford v Thorhild (County No. 7), (cont.)



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L’Hirondelle v Alberta (Sustainable Resource Development), 2013 ABCA 12Areas of Law: First Nations; Métis; Aboriginal Fishing Rights; Judicial Review

~Métis fisher with Métis Settlement ID card must prove ancestry bona fides with Fish and Wildlife Office~

BACKGROUND

The appellant Robert L’Hirondelle was a

member of the East Prairie Métis Settlement. He held an identification card issued by the Métis Settlement General Council. The back of the card provides: “The bearer of this card enjoys all i) rights/privileges created (granted) by the Métis Settlements Alberta Accord and by its resulting legislation; ii) rights/privileges existing before the accord; and iii) rights/privileges protected by Section 35 of the Constitution of Canada, including, but not restricted to, Hunting Fishing Trapping and Gathering”. He applied for a Métis domestic fishing licence, asserting that, as a

member of the East Prairie Métis Settlement, he was entitled to such a licence as a matter of right. Alberta has a policy respecting Métis Harvesting which provides in part that the applicant have an ancestral connection to an historic Métis community in Alberta. Alberta’s criteria for assessing an applicant’s right to an aboriginal fishing licence derived from the Supreme Court of Canada decision in R. v Powley, 2003 SCC 43, [2003] 2 SCR 207. The Fish and Wildlife Officer refused to issue the fishing licence until L’Hirondelle could prove that he was in fact of Métis ancestry, connected with a historic Métis community in Alberta. L’Hirondelle applied for judicial review, but the chambers judge held that judicial review was not available to L’Hirondelle because there was no judicial character to the decision whatsoever, and that the decision was entirely ‘ministerial’, relying on McDonald v Alberta (A. G.) (1968), 66 WWR 111, 1 DLR (3d) 118 (Alta AD). L’Hirondelle appealed to the Court of Appeal.




February 2013


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The appeal was dismissed. The chambers judge

erred in concluding that L’Hirondelle was not entitled to judicial review. The granting and refusal of licences, the vires of government policies, and the constitutionality of particular decisions are core topics of judicial review, even in aboriginal law. The issue underlying L’Hirondelle’s appeal was whether the government can “look behind” a Métis Settlement identification card, or whether the government must effectively accept the membership decisions of the Alberta Métis communities. L’Hirondelle argued that it imposed an unfair burden to expect him to have to prove his Métis status over and over again for different purposes. But it can be expected that L’Hirondelle kept any documents that were useful in proving his membership in the Métis Settlement. The Settlement is required by s. 81

of the Métis Settlements Act, R.S.A. 2000 c. M-14, to keep a record of his proof of his status for that purpose, if only so that his direct descendants can also prove Métis status. The incremental effort required to prove his s. 35 status was an incident of having that status. It is an unavoidable fact that those who seek the benefits of constitutionally protected status will have to prove it at some point. Such status should not be available just for the asking. As a result, notwithstanding what was written on his Métis Settlement identification card, L’Hirondelle was not entitled to s. 35 status just because he was a member of a Métis Settlement. The Fish and Wildlife Officer was entitled to delay the issuance of a Métis Domestic fishing licence to L’Hirondelle pending further proof of his status. As L’Hirondelle has failed to establish that he was entitled to a Métis domestic fishing licence as of right on production of a Métis Settlement membership card, he was not entitled to the relief he seeks. While the decision of the chambers judge disclosed errors of law, in the end on a proper analysis L’Hirondelle has failed to establish his claim.

APPELLATE DECISION

L’Hirondelle v Alberta (Sustainable Resource Development), (cont.)

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