Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of section 39(1)(b) of the City of Calgary Land Use Bylaw regarding whether an automatic stay of a development permit is triggered by the filing of an application for permission to appeal.

• Uncertainty due to the City of Calgary and Best Investment Group Inc. not disclosing when the development permit was released.

• Application of the legal test for a stay pending appeal, including serious question, irreparable harm, and balance of convenience.

• Consideration of whether the applicant should be required to provide an undertaking in damages as a condition for the stay.

• The City’s position that it may release a permit with knowledge of an appeal application unless formally served, and the Court’s observation that the bylaw does not reference service.

• Balancing the public interest in additional housing and mortgage conditions against the applicant’s right to an effective appeal.

Background and facts of the case

Evgeny Zhuromsky, the applicant, owns land immediately west of property owned and developed by Best Investment Group Inc. (Best). The City of Calgary approved Best’s development permit for a five-unit rowhouse building with four suites below grade. Zhuromsky appealed the development permit to the Calgary Subdivision and Development Appeal Board (SDAB), which upheld the permit with additional conditions on November 18, 2024. On December 5, 2024, Zhuromsky applied to the Alberta Court of Appeal for permission to appeal the SDAB’s decision under section 688 of the Municipal Government Act. The next day, a copy of the application was provided by email and courier to the City. On March 25, 2025, Zhuromsky was granted permission to appeal, with the appeal scheduled for September 11, 2025.

On April 15, 2025, Zhuromsky noticed excavation had commenced on the subject property. His counsel contacted the City to inquire whether the development permit had been released. The City confirmed the permit had been released but did not specify when. On May 21, 2025, Zhuromsky applied for a stay of the development permit pending appeal.

Discussion of policy terms and bylaw clauses

Section 39(1)(b) of the City of Calgary Land Use Bylaw IP2007 prohibits the City from releasing a development permit during the 21-day SDAB appeal period, and, in the event of an appeal, until the appeal is fully dealt with by the Appeal Body or the Alberta Court of Appeal, or the appeal is withdrawn or abandoned. Zhuromsky argued that this provision provides for an automatic stay once an application for permission to appeal is filed, relying on comments in previous cases. The City and Best argued that section 39(1)(b)(ii) does not automatically stay a development permit that has already been released when an application for permission to appeal is filed, and distinguished the cases cited by Zhuromsky based on different bylaw language.

The Court found that section 39(1)(b)(ii) does not automatically stay an already released development permit upon an application for permission to appeal being filed. The Court noted that the bylaw can act as a stay by prohibiting the City from releasing a permit during specified periods, but there is a gap after the SDAB decision and before an application for permission to appeal is filed, during which the City is not prohibited from releasing the permit. The Court also noted that the bylaw does not reference service, and that the apparent purpose is to maintain the status quo pending an appeal. However, the Court left open the question of whether the prohibition is triggered by notice or service, as it was not necessary to decide for this application.

A key factual issue was that neither the City nor Best disclosed when the development permit was released, making it impossible for the Court to determine whether the permit was released at a time when the bylaw prohibited its release. The applicant suggested an adverse inference should be drawn from this failure to disclose, but the Court did not make such a finding.

Outcome and reasoning

Justice Strekaf declined to find that the released development permit had been effectively stayed by section 39(1)(b)(ii) of the bylaw, due to the lack of evidence about the timing of the permit’s release. However, she proceeded to consider whether a discretionary stay should be granted under rule 14.48 of the Alberta Rules of Court and section 18 of the Judicature Act. The Court applied the test for a stay pending appeal: (1) serious question to be determined, (2) irreparable harm, and (3) balance of convenience. The Court found the threshold for a serious question was met, as permission to appeal had been granted. The Court was satisfied that Zhuromsky would suffer irreparable harm if the development proceeded and the permit was ultimately set aside, as construction would be substantially completed by the time of the appeal, and a meaningful remedy would be difficult to obtain if the development was occupied.

On balance of convenience, the Court noted that Zhuromsky took steps to file the application for permission to appeal and made the City aware on December 6, 2024. Best argued it needed to proceed with development due to mortgage financing conditions and that the public interest in additional housing weighed against a stay. The Court found that the appeal was scheduled expeditiously and that, given the uncertainty about whether an automatic stay should have applied, the balance of convenience favored granting the stay. The Court also noted that Zhuromsky may have been entitled to the benefit of an effective automatic stay under the bylaw, in which case he would not be required to post security or provide an undertaking in damages.

Final order

Justice Strekaf granted the application. The decision of the SDAB and any development permit issued pursuant to it is stayed pending determination of Zhuromsky’s appeal. No specific monetary amount was ordered or awarded, as the relief was a stay of proceedings. The successful party for this application was Evgeny Zhuromsky.