CALGARY – The next move in the ongoing legal battle between the Town of Canmore and Three Sisters Mountain Village Properties Limited is in the hands of Alberta’s Court of Appeal.
The legal body heard from both sides in the Town’s leave to appeal hearing on Oct. 5 on whether the Town will be permitted to file an appeal against the Land and Property Rights Tribunal’s (LPRT) decisions on the Smith Creek and Three Sisters Village area structure plans (ASPs).
The Town brought forward nine grounds that raised issues of retrospectivity of the LPRT having jurisdiction to decide on the matter, the two ASPs not being amendments as required by the 1992 Natural Resources Conservation Board (NRCB) decision and issues of consistency in the ASPs with the NRCB approval.
In her opening arguments, Kelsey Becker Brookes, the Town’s legal counsel, argued TSMVPL amended the project the NRCB had approved and relied on Section 619 of the MGA to have Canmore council adopt the plans. It doesn’t mean the plans didn’t have the right to be heard by council, she said, but that the changes led it to straying and relying on the NRCB decision.
“Making changes to the project that the NRCB approved means that council is no longer required to approve ASPs under Section 619,” she said. “It doesn’t mean the developer can’t develop, it simply means they have to follow the same rules that apply to all other developers who are not developing in accordance with an NRCB approval.”
Becker Brookes told Justice Jolaine Antonio, who is deciding on the leave to appeal, it was the Town’s belief that Section 619 can’t undermine a council’s authority and emphasized the two ASPs were different than what the NRCB approved.
After Antonio pushed her to raise issues of legal error, she further noted the implementation plan focused on golf courses, commercial development, a convention facility and residential “but the primary driver in the Three Sisters area remains commercial and golf courses.”
In TSMVPL’s presentation, legal counsel Gwendolyn Stewart-Palmer, said an appeal can only move forward if the LPRT erred in its determination of consistency between the ASPs and NRCB approval. She argued the “Town has failed to establish these grounds are of sufficient importance to justify the appeal.”
Stewart-Palmer further stressed the hearing was to decide if the question of fact of law had been brought forward by the Town, but also pointed out an error in the Town’s original legal submissions that misinterpreted the standard of review needed to be factored.
The Town’s original submission incorrectly stated the court would focus on correctness rather than reasonableness.
Standard of review in the case of decisions made by administrative bodies such as the LPRT under its legislative act establishes it as reasonableness, which examines if a decision was reasonable or unreasonable in coming to a decision.
If it isn’t, the court could send it back to the decision-maker to review it again. Correctness can examine if a decision is about the law or the decision-maker’s ability to decide the matter such as the LPRT to render an order on the ASPs.
The mistake led to an apology letter being submitted by the Town to the Court of Appeal.
“The foundational misalignment of standard of review needs to be taken into account,” Becker Brookes said.
Stewart-Palmer spoke on the past cases heard under Section 619 and while there are few, she highlighted “this court has spoken to 619,” in reiterating past precedence to deny leaves of appeal.
In Section 688 of the MGA, an appeal has 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.
The Court of Appeal previously permitted the Stoney Nakoda First Nation, NRCB and LPRT intervenor status, while it denied Bow Valley Engage’s request and ordered the organization to pay TSMVPL $1,000 in legal fees. The intervenors were given limited areas to bring forward arguments.
The Town and Stoney Nakoda First Nation in its intervenor status both raised issues with the three decades of time that has passed since the NRCB’s approval, specifically noting how the NRCB unlikely considered what is now being proposed in the project.
“The NRCB didn’t consider what it didn’t know that it was supposed to consider in 1992,” said Brooke Barrett, representing Stoney Nakoda First Nation.
The issue has continually been raised since the ASPs were submitted to the Town in 2021, the LPRT hearings and in arguments from the Town and the Stoney Nakoda First Nation.
The NRCB has also repeatedly shut down any attempts to potentially reopen the 1992 approval or place an expiry date, noting it would be an attack on the board’s “credibility of our stock and trade.”
“Frankly, the NRCB is concerned that its approval has somehow aged out,” said Fiona Vance, legal counsel for the NRCB. “However, I’ve heard suggestions from both the Town and the Stoney Nakoda Nations that the evidence and what the NRCB should or would consider has changed between 1992 and 2022.
“We will never know what the NRCB would consider today because there is no application before the NRCB in 2022. My concern comes from this line of argument which has the same effect as urging this court as to whether the 1992 NRCB decision was stale dated or something that can be revisited or delved into again … The reality is those discussions have no place here. It is improper and not a question of law or jurisdiction rising from the LPRT decisions. Today, this is a dispute between the Town of Canmore and Three Sisters Mountain Village Properties Limited. The NRCB decision is a fact and not a legal issue.”
Stewart-Palmer also raised issues with the argument and that “neither the LPRT or the court can impose a time limit in relation to the NRCB approval.”
She further said it was a “collateral attack” on the NRCB decision and “the decision is the decision. Times change, but the decision continues to speak. To say we want a do-over to reflect the passage of time is not how decisions are interpreted.”
Both the Town and TSMVPL argued their interpretations of Borgel v. Paintearth, a 2020 court case under Section 619 which was cited multiple times in the LPRT decisions. The interpretation of consistency between the ASPs and the NRCB approval was also disputed, specifically if what was brought forward by TSMVPL aligned with the 1992 decision.
“The board’s assessment of determination of broad consistency is not plucked out of the air, but came from the submissions of the Town,” said Stewart-Palmer. “It came from the questioning of the Town’s witnesses and submissions to the tribunal. When the board comes to a conclusion of broad consistency being the test, this is not plucked from air. It’s derived from the submissions of the parties before it.
“At the end of the day, the tribunal found there was 100 per cent consistency and the Town be directed to pass the area structure plans. Factually, they found them to be consistent. … They didn’t have to draw a line where they weren’t consistent because factually they found they were.”
Becker Brookes said the two ASPs were not consistent due to differences in the plans to the NRCB decision, especially with the proposed commercial and recreation development.
“They are not 100 per cent consistent. There are not three golf courses. There are not five hotels. There is no convention facility. There is a change in phasing, which is not happening between 1992 and 2022. It is happening between 2022 and 30 or 40 years out in the future.”
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.
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.
No timeline was given on when a decision will be made by the court.
