Road Closure Dispute Could Redefine Municipal Board’s Jurisdiction

This post was written prior to our January 2017 merger, under our previous firm name, Aikins, MacAulay & Thorvaldson LLP.

Manitoba municipalities outside the City of Winnipeg do not have the final say regarding land development within their boundaries. On the other hand, the City of Winnipeg Charter Act gives the City of Winnipeg statutory power with a final say on almost all matters affecting land development within its boundaries. Appeals regarding land use, planning, zoning, road closures, subdivisions, etc. in all other municipal jurisdictions outside of Winnipeg are referred to the Manitoba Municipality Board (the Municipal Board) for final determination by the Board or in some cases by the Minister, but not for Winnipeg.

In the November 2011 edition of this publication I asked the question: “Are elected officials in the City of Winnipeg any more capable of making final decisions on matters of a local nature than other municipal officials in the Province?” Is it time to revisit that question?

Manitoba’s highest court will soon be examining the jurisdiction of the Municipal Board in relation to a dispute between the Rural Municipality of East St. Paul and the City of Winnipeg.  The dispute arose over two proposed road closures that would negatively impact land development within the boundaries of East St. Paul. Although the Municipal Board has no jurisdiction over most matters involving Winnipeg, in a rare exception it is given jurisdiction when Winnipeg has a dispute regarding inter-municipal or shared infrastructure with adjacent municipalities.

First, some background. In 2015, the City of Winnipeg initiated a process to close portions of Raleigh Road and Gateway Road up to the point where they cross into East St. Paul near the north perimeter highway, just west of Lagimodiere Blvd. The City’s reason for closing the roads was to prevent the development of a big box shopping center on a parcel of land in East St. Paul. The City of Winnipeg was concerned the proposed development in East St. Paul would increase traffic within Winnipeg’s boundaries, because Winnipeg residents would use these two roads to access the shopping center. The City was concerned this would put unreasonable demands on these streets that were not designed for the projected volumes. Also, local residents would be adversely affected by the increased traffic to and from the shopping center in East St. Paul.

When it became evident the City was determined to close the roads in an effort to prevent the development from going ahead, negotiations for a mutual compromise broke down. East St. Paul made application pursuant to section 295(5) of The Municipal Act to have the Board prevent the closures. The Board was asked to determine if the streets that were being closed by Winnipeg were needed, and if so, to order the City to refrain from the closure. The relevant excerpt of The Municipal Act which gives jurisdiction to the Board for the dispute, reads:

295(5)   A municipality that is not able to agree with another municipality on a matter relating to a municipal road, bridge or drain may refer the matter to The Municipal Board for determination, including
(a)   whether a road, bridge or drain is needed;
(b)   a standard of construction or maintenance;
(c)   each municipality’s share of construction or maintenance costs;
(d)   which municipality’s by-laws are to be enforced and by which police force; and
(e)   each municipality’s share of the costs of enforcing a by-law.

A hearing was held. The Board’s decision was released January 6, 2015. It concluded that the streets that Winnipeg intended to close were needed and they should not be closed. However, the  Board stopped short of ruling that the City of Winnipeg must refrain from closing them. In its decision the Board concluded that it didn’t have the jurisdiction to require the City of Winnipeg to keep the public roads open.  Instead the Board wrote in its decision that it “encourages” the City of Winnipeg to keep the sections of the two roads open.

East St. Paul’s response was that the Board did in fact have jurisdiction to make the ruling to prevent the road closures, and that it should have ordered such in its decision. East St. Paul then made application to the Manitoba Court of Appeal to hear the matter.

Justice Mainella of the Court of Appeal has granted the leave for the appeal to proceed.

Two questions will be considered by the three member panel of the Court of Appeal:

  1. What is the role and jurisdiction of the Municipal Board under section 295(5) of The Municipal Act in relation to disputes referred to it between Municipalities over interprovincial roads, bridges and drains?
  2. Did the Municipal Board err in its conclusion that it did not have the jurisdiction to order the City of Winnipeg to refrain from taking steps to close Raleigh Road and Gateway Road and / or to keep the roads open?

This hearing will raise some important issues regarding Winnipeg’s right to use the power it has been given under The City of Winnipeg Charter Act to close a road for the purpose of preventing a development from proceeding in an adjacent municipality.

  • Is that the proper use of its statutory power?
  • Should the Municipal Board in Manitoba have the final say on the matter or on such matters of inter-jurisdictional importance such as this?
  • Can Winnipeg be overruled by the Municipal Board? All other municipalities can be overruled on road closures. Why should Winnipeg not be overruled in this instance?

The result of the Court of Appeal hearing could jeopardize the City of Winnipeg’s ability to fully control what happens within its boundaries in relation to inter-jurisdictional roads (putting it on par with all other Manitoba municipalities who don’t have final say on road closure matters). The extent of the Municipal Board’s jurisdiction in such a case has never been argued before the courts.

If the Court of Appeal determines the Municipal Board has the jurisdiction to require Winnipeg to refrain from closing the roads, the Court won’t decide on the closures themselves. Instead, the Court will turn the matter back to the Municipal Board and require it to revisit and then make the determination. This will be an interesting case to follow.

This article was originally published in Municipal Leader, Spring 2016.

Robert Tyler is a partner with the law firm 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.