Executive Summary: Key Legal and Evidentiary Issues

• The Court of Appeal denied permission to appeal a Land and Property Rights Tribunal decision that found no appealable decision existed under section 678(1) of the Municipal Government Act.
   
• Condition 61 of Avi's subdivision approval required the developer to negotiate a development agreement with the City regarding cost-sharing for public utilities and infrastructure.
   
• A letter from the City's Manager of Development Engineering refusing to facilitate Avi's proposed non-standard cost-sharing arrangement formed the basis of Avi's appeal.
   
• The Tribunal determined that the Refusal Letter was issued by the City's Business Unit rather than the Subdivision Authority, making it non-appealable under the Act.
   
• Justice Feth found that Avi's proposed grounds of appeal either raised no question of law, lacked sufficient importance, or had no reasonable chance of success.
   
• Timeliness of Avi's appeal to the Tribunal was not addressed because the underlying decision was not appealable in the first place.
   

Facts of the case

In December 2022, Homes by Avi (BVX) Inc. obtained a residential subdivision approval from the City of Calgary Subdivision Authority subject to ninety conditions, one of which, Condition 61, required Avi to enter into a development agreement with the City for the installation and construction of public utilities, improvements, fences, a multiuse pathway, and street lighting, subject to normal oversize, endeavours to assist, and boundary cost recoveries. Avi negotiated with the City for more than two and a half years over the cost-sharing terms, including the interpretation of the "endeavours to assist" provision. In February 2024, despite the ongoing negotiations, Avi and the City entered into the required development agreement, and the subdivision was registered in June 2025. The parties continued discussing possible changes to the agreement, but on October 15, 2025, the City's Manager of Development Engineering informed Avi that the City would not facilitate Avi's proposed non-standard cost-sharing arrangements. Avi treated this letter as a decision refusing to assist with cost-sharing for oversized infrastructure and appealed it to the City of Calgary Subdivision and Development Appeal Board, arguing its legitimate expectations to fair treatment were not met. The Appeal Board directed the matter to the Land and Property Rights Tribunal (LPRT) under section 678(2) of the Municipal Government Act. The LPRT found that the Refusal Letter was issued by the City's Development Engineering Business Unit rather than the Subdivision Authority and therefore was not an appealable decision under section 678(1) of the Act. The Subdivision Authority also argued the appeal was filed outside the fourteen-day statutory period, though the LPRT did not resolve that issue given its finding on appealability.

Policy and legislative provisions at issue

Section 678(1) of the Municipal Government Act, RSA 2000, c M-26, permits an appeal of "the decision of a subdivision authority on an application for subdivision approval." Section 678(2) directs such appeals to the LPRT. Section 688(3) of the Act allows permission to appeal to the Court of Appeal where the proposed appeal involves a question of law of sufficient importance to merit a further appeal and has a reasonable chance of success. Sections 623 and 655(1)(b) establish that a subdivision authority exercises subdivision powers and duties on behalf of the municipality and may impose conditions requiring an applicant to enter into an agreement with the municipality. Condition 61 of Avi's approval required it to enter into a development agreement addressing cost-sharing for oversized infrastructure, subject to normal oversize, endeavours to assist, and boundary cost recoveries.

Reasoning and analysis

Justice Feth applied the established test for permission to appeal, considering whether the proposed appeal raised a question of law of sufficient importance with a reasonable chance of success, drawing on Shaikh v Land and Property Rights Tribunal, 2023 ABCA 56, Rendle v Edmonton (Development Appeal Board), 1995 ABCA 499, and Biernacki v Alberta (Land and Property Rights Tribunal), 2022 ABCA 56. The court noted that permission is not granted to dispute factual findings, citing Investors Group Trust Co Ltd v Calgary (City of), 2005 ABCA 34. On Avi's first argument, the court held that the LPRT's conclusion that the Refusal Letter came from the City's Business Unit rather than the Subdivision Authority was a finding of fact or mixed fact and law, raising no question of law and having no implications beyond the specific case. On the second argument, the court held that insufficiency of reasons is not a standalone ground of appeal, citing Site Energy Services Ltd v Wood Buffalo (Regional Municipality), 2015 ABCA 106, and Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, and found the LPRT had provided detailed reasons explaining why the Refusal Letter fell outside the Subdivision Authority's function. Regarding Avi's argument that section 678(1) should extend to disputes over development agreement terms, the court agreed with the LPRT's rejection of this position, noting that extending appealability to every negotiated term of a development agreement would undermine the finality of the subdivision approval process. The court found Avi's reliance on Focaccia Holdings Ltd v Parkland Beach (Summer Village Subdivision and Development Appeal Board), 2014 ABCA 132, unpersuasive, since general comments about the public law character of development agreements did not establish that the Subdivision Authority remained accountable for the City's later refusals to amend agreement terms. The court also declined to consider Avi's timeliness arguments, since those issues only arose if the underlying decision was appealable, which it was not.

Ruling and overall outcome

Justice Feth concluded that Avi's proposed grounds of appeal either raised no question of law, lacked sufficient importance to merit further appeal, or had no reasonable chance of success. The Land and Property Rights Tribunal and the City of Calgary were the successful respondents, as the court denied Homes by Avi (BVX) Inc.'s application for permission to appeal. The decision did not address or order any monetary award, costs, or damages.