Executive Summary: Key Legal and Evidentiary Issues

• Neighbouring property owners challenged a development permit for an eight-unit building approved as a "townhouse" with "secondary suites" in a Residential – Grade-Oriented Infill (R-CG) district.

• Applicants contend the below-grade units are fully independent dwelling units, not "secondary suites," making the project an impermissible "multi-residential development – minor" under the Bylaw.

• The Calgary Subdivision and Development Appeal Board upheld the permit with a condition requiring submission of revised plans but did not vary the use approved by the City.

• Sparse, conclusory reasons from the Board failed to explain how or why the below-grade units can be defined as "secondary suites."

• Respondent Saikat objected that the misclassification argument was a new issue not raised before the Board and would cause prejudice on appeal.

• Permission to appeal was granted on both grounds — misinterpretation of Bylaw definitions and inadequacy of reasons — by Justice Friesen of the Court of Appeal of Alberta.

The development and the neighbours' objection

The City of Calgary approved a development permit for a New Townhouse (1 building), Secondary Suite (4 suites), and Accessory Residential Building (2 garages) in a neighbourhood designated as a "Residential – Grade-Oriented Infill" (R-CG) land use district under the City of Calgary Land Use Bylaw IP2007. The proposed development includes a building with four above-grade units and four below-grade units, and two detached garages. Each of the eight units has its own at-grade entrance. The proposed development was approved as a "discretionary use" within the R-CG land use district under the Bylaw.

The Board's partial allowance of the appeal

Three neighbouring property owners — Arden Conley, David Baker, and Travis Brown — appealed the City's decision to grant the development permit to the Calgary Subdivision and Development Appeal Board. The Board allowed the appeal in part, upholding the permit but adding a condition that requires the submission of revised plans to reduce the impact of the proposed development on the adjacent neighbour; however, the Board did not vary the use approved by the City.

The Bylaw definitions at issue

Central to the dispute are several provisions of the Bylaw. The applicants argued that the four below-grade units cannot meet the Bylaw definition of "secondary suites" because they are not "located within or part of and secondary to" the above-grade dwelling units, as required by s 295 of the Bylaw; rather, the below-grade units are fully independent from the above-grade units. They say the Bylaw, properly interpreted, does not allow townhouses to have secondary suites, which means the units must be classified as "dwelling units," as per s 188 of the Bylaw. If the proposed development consists of four above-grade dwelling units and four separate below-grade dwelling units, then it is a "multi-residential development – minor" under s 240 of the Bylaw. Multi-residential developments are not allowed in the R-CG district, and therefore the applicants argue the proposed development violates the Bylaw and the Board lacked jurisdiction to approve it under the Municipal Government Act, ss 687(3)(a.3) and (d). The respondent Saikat countered that the Bylaw permits secondary suites within any type of "dwelling unit" and the definition of "townhouse" does not prohibit secondary suites. He further argued the Board applied the correct legal test in categorizing the use — namely, the "use which most clearly fits" test under s 130(5) of the Bylaw — and that a challenge to the Board's application of this test to the facts raises a question of mixed fact and law.

The new-issue objection

Saikat raised a preliminary objection, arguing that the applicants did not raise the issue of the misclassification of the approved development before the Board. Rather, in that hearing, the applicants appeared to concede that the proposed development had been properly classified because they asked the Board to exercise its discretion to refuse to approve the development. He contended this was a new issue raised on appeal and that he would be prejudiced if the Court considered it at this stage, because had the issue been raised before the Board, he says he would have adduced evidence of materials before council related to various Bylaw amendments to inform the Board's statutory interpretation. The City of Calgary, as a mandatory party to the action, took no position on the merits of the application but raised three procedural and policy considerations: that appellate courts should not generally hear new issues on appeal; that the Municipal Government Act does not allow appeals on questions of mixed fact and law; and that deference is owed to the Board respecting the specific issues of fact underlying its interpretation of the Bylaw.

The Court's reasoning on the new-issue question

Justice Friesen agreed with the respondents that the specific theory of statutory interpretation to be advanced by the applicants regarding the definition of "townhouse" was not clearly articulated before the Board; however, the broader issue of the applicable use under the Bylaw was before the Board. In his submissions, applicant Travis Brown argued the below-grade units were not truly "secondary suites." Building on this, he argued the developer's interpretation of the Bylaw had become "a loophole, which allows developers to build eight-unit apartment buildings disguised as a townhouse." Speaking on his own behalf before the Board, Brown did not define the applicable use as "multi-residential development – minor," as he now does through counsel on this application, but his characterization of the development as an "eight-unit apartment building disguised as a townhouse" arguably put the applicable "use" definition into issue. Relying on Zhuromsky v Calgary, 2025 ABCA 352, the Court noted this possibility is particularly salient in review of Board decisions, given that many applicants are self-represented before the Board, and recognised that "the arguments may have been refined with the benefit of counsel on appeal." Therefore, the applicant's argument with respect to the definition of "townhouse" should not be barred as a new issue at the permission to appeal stage.

Permission granted on both grounds

The Court found the first ground — the assertion that the Board erred in its interpretation of "townhouse" and "secondary suite" under the Bylaw — to be a question of law with a reasonable prospect of success and sufficient importance, given that the Court's determination on that interpretive issue will impact "the parties to the dispute, their neighbours, the rest of the community subject to the zoning bylaw, and other communities that have similar zoning bylaws." Permission to appeal was granted on the first ground. On the second ground — inadequacy of the Board's reasons — the Court observed that a challenge to sufficiency of reasons will rarely be considered a question of law of sufficient importance to warrant appellate review; however, conclusory reasons that fail to disclose a reasonable basis for the Board's conclusion may ground appellate intervention. The Board's explanation as to why the below-grade units meet the definition of "secondary suite" on their face seem to simply restate the constituent elements of the definition. Because the "sufficiency of reasons argument is wholly intertwined with the interpretive issue on which permission to appeal has been granted," the Court found "no harm in granting permission to appeal on the sufficiency of reasons issue as well," following the approach in Zhuromsky v Calgary (City), 2025 ABCA 106. Justice Friesen cautioned that it remains open to the appeal panel to determine whether any issue before it is new, and that enhanced costs have been awarded against appellants who unsuccessfully raised a new issue on appeal, even where permission to appeal was granted on that issue. Permission to appeal was granted to the applicants on both grounds; no monetary award or damages were at issue in this decision, as the proceeding concerned only whether the appeal could proceed. The application was heard on February 12, 2026, with reasons filed at Calgary, Alberta on April 2, 2026, by Friesen J.A.