CANMORE – A potential agreement between the Town of Canmore and Three Sisters Mountain Village Properties Limited could see the Court of Appeal process play out prior to other legal action on the future of the Smith Creek and Three Sisters Village area structure plans.
Canmore council voted to have its outside legal counsel offer an agreement with TSMVPL that would adjourn the mandamus application – a filing from TSMVPL to direct the Court of King's Bench to have the Town follow the Land and Property Rights Tribunal (LPRT) decisions – to no set date and have it rescheduled until after a Court of Appeal decision had been rendered.
However, in return the Town will cover TSMVPL’s costs of filing the mandamus application, waive any fees for Municipal Development Plan amendments and if the Court of Appeal rules in favour of TSMVPL and the LPRT, it would adopt both ASPs within 30 days of the decision.
“I believe this is a good arrangement that benefits the Town and allows the Court of Appeal process to unfold so the parties can get clarity based on the Court of Appeal,” said Mayor Sean Krausert after council came out of a roughly hour long in camera session.
“There are multiple lanes of litigation going on and parallel to each other and which affect the other. Without this agreement to adjourn the mandamus application, the Town would incur significant legal and human resource costs while an appeal is being heard for the decisions that are subject of the mandamus application.”
Chris Ollenberger, the director of strategy and development for TSMVPL, said they are reviewing the Town's offer.
"We have always been open to discussions towards resolution that respect the NRCB and LPRT decisions, and perhaps this is a step on that path," he said.
Under the agreement, the Town of Canmore would also waive its right to appeal a Court of Appeal ruling in TSMVPL’s favour. The only avenue would have been to seek a leave to appeal from the Supreme Court of Canada.
Krausert noted Town council had been advised the likelihood of getting such an appeal from Canada’s top court was “very small.”
Adam Driedzic, the Town’s solicitor, told council picking up the application fees TSMVPL paid for the mandamus application was “insignificant compared to the value of this agreement from council’s perspective.”
He estimated it would likely be $2,000 to $3,000.
The waiving of the MDP amendment fees would be far more significant on paper, but Town staff told council due to the amount of work and the fees being calculated by area it would’ve left staff likely to bring a fee reduction to council since the master fee schedule didn’t reflect a project the size of the ASPs.
“It would be significant since the fee is calculated by area … I would suggest out of sync with the level of effort it would take to produce the MDP amendment,” said Whitney Smithers, the Town’s general manager of municipal infrastructure.
Sally Caudill, the Town’s CAO, echoed Smithers since “administration would’ve likely been looking at some fee reduction out of appropriateness of fees and workload.”
According to the 2023 master fee schedule, per MDP amendment application is $3,265 for each but also an additional $1,650 per hectare. With Smith Creek being 154 hectares and Three Sisters Village at 169 hectares of land, the total would’ve been a little less than $540,000
The Court of Appeal date is set for April 3, meaning it would be heard prior to the mandamus application on June 1.
The Town and Stoney Nakoda First Nation will file factums – a written argument provided prior to arguments being made – by Jan. 20 for the Court of Appeal, while TSMVPL, the Natural Resources Conservation Board and LPRT have until Feb. 28 to file factums. TSMVPL has filed to expedite the process, which could lead to a quick decision but is ultimately up to the court.
The Town’s legal counsel on the mandamus application – McLennan Ross LLP – wrote in an October letter to council noted preparing evidence for the mandamus application is “onerous and needs to begin as soon as possible.”
Driedzic told council if the appeal is decided in the Court of Appeal, it would ultimately mean the mandamus application wouldn’t be needed.
“Should this appeal the Town is now making be able to decide the matter between the parties, then these procedural steps in the mandamus application may no longer be relevant or material of disposing of the dispute,” he said.
Driedzic highlighted in an October report to council that any evidence for the Court of Appeal would be limited to evidence heard at the LPRT hearings. It was also emphasized as the cases continue, they “will become increasingly narrow, legalistic and less directly connected to Canmore.”
The Town could ask for a stay on the LPRT’s decisions, but have yet to do so. If it does, the court would have the Town file an undertaking for damages. However, if the Town were to lose the appeal, since TSMVPL would have been deprived of the benefit of developing on the land, it could have the Town pay for damages.
Affidavit evidence has previously stated TSMVPL is out $217,000 a month by the project not moving forward.
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 in the Smith Creek ASP.
