Court of Appeal decision dissected further

In a story published May 14, 2020, the Review reported on the success of the appellants in a Court of Appeal decision in one of three grounds of appeal.

The other two grounds for appeal by the appellants were dismissed by the court.

The Subdivision  Development Appeal Board (SDAB) did not, according to the Court of Appeal, err in law or jurisdiction by concluding the term “municipality”, nor did they err by failing to wait for the AUC approval before issuing the development permits.

 Three judges within the Court of Appeal of Alberta made a unanimous decision after 11 appellants brought issues forward against the County of Paintearth and Capital Power.

The issue stems from the Subdivision and Development Appeal Board (SDAB) decision to allow the issuance of 10  development permits being appealed during its public hearing regarding Capital Power’s second wind project in the county located north of Halkirk for at totalling 74 wind generators.

The SDAB adjourned its hearing of those appeals pending the release of the AUC decision and scheduled a second bifurcated hearing: a preliminary hearing to address the scope of the SDAB’s authority under the Municipal Government Act, followed by a subsequent hearing on the merits of the appeals.

After the AUC approval was released, the SDAB held its preliminary hearing.

Having heard submissions from the parties, the SDAB dismissed the appeals, upheld the development permits, and cancelled the merits hearing.

It was the cancellation of the “merits hearing” that was upheld by the Court of Appeal, reported on earlier by the ECA Review.

The judgment stated,  “proceeding in this fashion constituted a breach of the duty of procedural fairness owed by the SDAB to the appellants.

“Even recognizing that the merits hearing would be limited in scope by virtue of the MGA to the extent that the SDAB determined that certain matters had already been addressed by the AUC, the appellants were deprived of the opportunity to make submissions on the remaining matters.

“Because of the bifurcated manner in which the appeal was structured, there was no reason for the appellants to have made such submissions at the preliminary hearing.

“In the absence of knowing what those submissions would have been, it cannot be said that they may not have been affected some aspects of the development permits that were the subject of the appeals.

“Pursuant to section 689 of the MGA, the decision of the SDAB dismissing the 10 appeals is cancelled and those appeals are referred back to the SDAB to be reheard and dealt with in accordance with the direction to approve the development permits to the extent that the applications are consistent with and comply with the AUC approval.”

In the previous story titled ‘Alberta Court of Appeal sides with appellants on Paintearth wind turbine SDAB decision’ in the May 14 edition of the ECA Review, Donna Fetaz was incorrectly identified as an appellant.

The 11 appellants are Gerald Borgel, Brenda Anderson, Dwayne Felzien, Adam Fuller, Rhonda Fuller, Donald Coulthard, Doug Potter, Lynne Potter, Terry Vockeroth, Peggy Vockeroth and Brian Perreault.

The appeal had been heard on March 31, 2020.


Terri Huxley

ECA Review

About the author

Terri Huxley

Terri grew up on a grain farm near Drumheller, Alberta with an eye for the beautiful and uncharted. Living in such a unique and diverse area has helped her become the photographer and reporter she is today.

Coming from the East Central region getting this newspaper on her dinner table growing up, it helped her understand the community she now serves.

In May 2019, Terri was awarded Alberta Weekly Newspaper Association (AWNA) Canada's Energy Citizens Photographic Awards Sports Action – First Place as well as first for the same sports action image nationally with the Canadian Community Newspaper Association (CCNA). Fast forward to 2020, she has won second in the same category for the AWNA.