CALGARY – The Town of Canmore will be able to appeal the Land and Property Rights Tribunal decisions on Three Sisters Village and Smith Creek area structure plans.
The Court of Appeal permitted the leave to appeal Tuesday (Oct. 25) when it granted the Town the ability to argue its case on whether the LPRT erred on jurisdiction and law.
In its determination, the court stated the Town’s appeal is “of sufficient importance to merit a further appeal.”
Justice Jolaine Antonio wrote in her decision the issues raised by the Town’s legal counsel surpassed the “not frivolous threshold” that warrants an appeal to be heard.
“A ground of appeal has a reasonable chance of success if it is arguable, and a question of law is arguable if it is not frivolous. … The Town’s proposed grounds of appeal are interrelated and pertain to the scope of the Town’s involvement and ability to apply its own processes in. considering applications for projects with its boundaries,” Antonio wrote.
“These issues are compounded by the evolution of the legal landscape surrounding project development in the 30 years since the NRCB approval.”
The Town and TSMVPL presented their cases on Oct. 5, with the Stoney Nakoda First Nation, Natural Resources Conservation Board (NRCB) and LPRT all receiving intervenor status.
The Town argued on nine grounds that raised issues of retrospectivity of the LPRT having jurisdiction to decide the matter, the two ASPs not being amendments required under the 1992 NRCB decision and issues of consistency in the ASPs and the adequacy of the LPRT’s decisions.
The Town was permitted to appeal under Section 688 of the Municipal Government Act (MGA), but it had to raise a question of law or jurisdiction, question the law or jurisdiction sufficiently to warrant an appeal and have a reasonable chance for success.
While being granted the leave to appeal is the first victory the Town of Canmore has had since TSMVPL went to through the LPRT hearings, it now means the municipality will have to argue its case at the Court of Appeal.
It will have to show the court enough evidence to potentially overrule the LPRT decisions, which if successful, the Court of Appeal would decide the next steps that could potentially have it go back to the LPRT.
A panel review will be scheduled at a later date.
Antonio noted legal counsel for TSMVPL submitted the issues raised by the Town were questions of fact of mixed fact, which would have made it non-appealable under Section 688. However, she found the issues – particularly the interpretation of Section 619 of the MGA – involved questions of law or jurisdiction.
The two sides can continue to negotiate a potential settlement, similar to the one in the late-1990s. In that case, the Municipal Government Board ruled in favour of Three Sisters Golf Resorts in 1997, but the two sides reached a settlement in 1998.
The LPRT decisions entirely went in favour of TSMVPL, with the tribunal noting in both decisions it aligned with the 1992 NRCB decision.
The LPRT stated since the 1992 NRCB decision remains in effect, the Town was legally obligated to pass the ASPs and Canmore was unable to “refuse the project altogether if it complies with the NRCB approval. Section 619 requires the Town to approve the application to the extent that it complies with the NRCB approval.”
The LPRT hearings lasted 15 days and had more than 110 hours of testimony in addition to thousands of pages of evidence accepted.
Town council set aside a budget of $750,000 for litigation with TSMVPL, having spent $217,000 during the LPRT hearings. According to the Oct. 25 finance committee agenda, the Town has spent $260,000 in litigation involving TSMVPL, not including staff time.
TSMVPL filed a writ of mandamus application in August to have the Court of King’s Bench direct Canmore to adopt the two ASPs, as per the LPRT decisions.
TSMVPL also has a $161 million lawsuit against the Town and previous council, while Thunderstone Quarries has a $63.5 million lawsuit against the Town since it owns lands that are part of the Smith Creek proposal.
