This post was written prior to our January 2017 merger, under our previous firm name, Aikins, MacAulay & Thorvaldson LLP.
I start with this question: Are elected officials in the City of Winnipeg any more capable of making final decisions on matters of a local nature than other elected officials in the province?
Unlike the City of Winnipeg, all other municipal councils are required to look to the Manitoba Municipal Board for the final say on matters such as municipal borrowings, local improvement or special services levies, development plan amendments, zoning by-law objections and subdivision approval appeals. For example, the Manitoba Municipal Board has been granted authority to decide appeals on the decisions and conditions imposed by all elected officials outside the City of Winnipeg regarding proposed subdivisions and associated developments under section 129(1) of The Planning Act.
Subdivision approval and associated development decisions are essentially political decisions and can be quite contentious. The planners and the approving authorities have their say, and they have a lot to contribute. At the end of the day it is the local council that has been elected to approve and impose the conditions that they consider most appropriate for the proposed subdivision and development. It is generally viewed that these elected officials who understand the local scene and are closest to the situation are in the best position to make the final decision on matters of a local nature.
That is how it works in the City of Winnipeg. But this is not how it works in the rest of Manitoba.
Of the twenty appeals from decisions of elected officials heard by the Manitoba Municipal Board in 2008, eight were withdrawn, eight were dismissed and four were allowed. In 2009, six were withdrawn, two were dismissed and five were allowed. In these two examples alone the Manitoba Municipal Board has overruled the elected officials almost as many times as they dismissed the appeals of the applicants. This isn’t to say that the Manitoba Municipal Board doesn’t make fair and impartial decisions when the subdivision conditions approved by elected officials are appealed. These are judgement calls, and there are some very competent people appointed from all over the province to sit on the Manitoba Municipal Board. But whose decision should it be? Those elected locally, or those appointed by the Province to serve on the Manitoba Municipal Board? And why do elected officials for the City of Winnipeg have the ultimate say on subdivisions and development within their jurisdiction, while elected officials for all other local governments in the province (who are closest to the local scene, understand it well and have been elected by those most affected) are denied the same final say.
The British North America Act of 1867 (now called the Constitution Act, 1867) divided powers between the federal and provincial governments. Municipal governments were not at the table back then, but the provinces were given the powers to create them. Ever since, municipal governments have been creatures of the provinces. By creating local governments Manitoba has by no means endowed any municipality, including the City of Winnipeg, with absolute power in the realm of local government. Substantial powers are held back by reserving rights to approve or disapprove certain proposed municipal action. This control is evident throughout other provinces in Canada as well. And like Manitoba, most other provinces have established municipal boards, or something similar, which are arms of the executive branch of government for the purpose of exercising control over certain fields of local endeavour.
If you have not already done so, and you are interested, I suggest you take the time to read the information available about the Manitoba Municipal Board. You will find lots of information about the Manitoba Municipal Board’s mandate and responsibilities as well as a series of “Frequently Asked Questions” which are informative and provide helpful background information on who they are, what they do and the role they are mandated to play in the aspects of local government.
In comparison to other provinces, the Manitoba Municipal Board has a lot of power.
It is not subject to direction by any minister, any members of the legislature, or government officials with respect to any of the decisions it makes within its authority. Its primary authority is granted by The Municipal Board Act and additional authority is granted through several other Acts of the Manitoba legislature such as The Municipal Act, The Planning Act and The Real Property Act. By contrast, Ontario’s Municipal Board Act gives the Ontario Municipal Board broader power than Manitoba in some areas but less power in others. In some matters within its jurisdiction the Manitoba Municipal Board even has the power of a Court of Queen’s Bench judge. In other cases, provinces such as British Columbia do not have a provincial body comparable to Manitoba’s Municipal Board. The Municipal Act in British Columbia deals mainly with process, and municipalities there are required to follow the process prescribed by legislation. In British Columbia, the appeal of municipal decisions are to the courts if the municipalities fail to follow the process or if they act outside their authority. As long as they follow process and act within their authority, elected officials in British Columbia have the final say.
The Manitoba Municipal Board is not a corporation. It cannot be sued.
When it acts in a judicial capacity to make findings of fact and render decisions and orders, it is not subject to any legal action against it by members of the public or municipal governments in respect of the exercise of its powers. All sittings of the Manitoba Municipal Board for the hearing of applications and appeals are to be open to the public and there are no provisions in the legislation for dispensing with a public hearing where one is required. There is no appeal from their decision except in certain cases. Appeals can be made to the Manitoba Court of Appeal only if the Manitoba Municipal Board applies the law incorrectly or acts outside its authority or jurisdiction.
So when, for example, an order of the Manitoba Municipal Board is made under The Planning Act that overturns a condition imposed by a rural council on a subdivision application, the Manitoba Municipal Board’s decision is declared to be final and binding. It is not subject to any appeal as long as the Manitoba Municipal Board conducted its hearing in accordance with legislative procedures and natural justice for all parties involved. The Manitoba courts have no jurisdiction to hear an appeal of the Manitoba Municipal Board’s decision even with the consent of all parties.
So why is it that we hear rumblings when elected officials outside the City of Winnipeg are overruled by the Manitoba Municipal Board on certain matters of a local nature such as subdivisions and related development conditions while the elected officials for the City of Winnipeg have the final say on such things. Are the elected officials of the City of Winnipeg any more capable than other elected officials in Manitoba in making the final decisions on subdivision and development? I think not!
So, is it then time for some reform?
How long has it been since the jurisdiction of the Manitoba Municipal Board has been reviewed, or The Municipal Board Act amended in any substantial way? Should the Manitoba Municipal Board still have the authority to overrule decisions of elected municipal councils in rural Manitoba on subdivision and related development matters? What do you think?
This article was originally published in Municipal Leader, Fall 2011 Issue.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
Robert L. Tyler is a partner with the law firm of Aikins, MacAulay & Thorvaldson LLP and practices in the area of Municipal Law. He is currently the chair of the Municipal Law Subsection of the Manitoba Bar Association.