Executive Summary: Key Legal and Evidentiary Issues

• Shoppes at Galway Limited Partnership appealed a decision of the St. John's Local Appeal Board upholding the City of St. John's rejection of a Traffic Impact Assessment (TIA) report submitted as part of a development application.
   
• Central to the appeal was whether the 2023 development application constituted a new application or a continuation of the 2020 Application, which had not received final approval.
   
• Questions were raised about whether section 4.4.1(2) of the City's Development Regulations provided sufficient authority for the City to require technical references supporting a proposed traffic signal phasing sequence.
   
• Shoppes characterized the City's requirement for technical references as an indirect mandate to construct a roundabout, a position the Board and the Court both rejected.
   
• The Court considered whether the City's reliance on its Standard Terms of Reference and its rejection of a professionally sealed engineering report were lawful exercises of discretion.
   
• Justice Osborne applied a correctness standard to the alleged errors of law and dismissed every ground of appeal, upholding the Board's decision in full.
   

Facts of the case

Shoppes at Galway Limited Partnership submitted a development application to the City of St. John's for land at 85 Danny Drive in Galway, near Costco. Shoppes had an earlier 2020 application reviewed by the City, which in May 2020 advised there were no further comments but identified three conditions required before final approval; final approval was never issued, and Shoppes did not proceed further at that time. In April 2022, Shoppes asked to revisit the file and sought an extension, but did not respond to the City's follow-up questions until February 27, 2023, at which point it indicated it wished to move forward with a modified proposal that included reduced building sizes and the addition of a drive-through. The City treated this as a new proposal (though using the same application number) and issued 38 comments for Shoppes to address, including a requirement for a traffic study. Shoppes submitted a Traffic Impact Assessment (TIA) prepared by Harbourside Transportation Consultants, dated March 12, 2024, recommending a signal phasing sequence combining a protected left turn and a protected/permissive left turn, supported by six examples of similar arrangements in Ontario and British Columbia, along with a peer review. The City rejected the TIA in April 2024, finding it lacked adequate technical references for the proposed signal phasing and requesting either supporting references or an alternative traffic control proposal. Shoppes appealed the City's rejection to the St. John's Local Appeal Board, which dismissed the appeal on all grounds, finding the City had the authority to reject the report and had not, in substance, mandated a roundabout. Shoppes then appealed the Board's decision to the Supreme Court of Newfoundland and Labrador.

Policy and legislative provisions at issue

The appeal turned on the interpretation of several provisions of the City of St. John's Development Regulations and the Urban and Rural Planning Act, 2000 ("URPA"). Section 4.4.1(2) of the Regulations requires that a development application "include such plans, specifications and drawings as necessary to evaluate the application," and lists vehicular access among the minimum categories of required information; this provision was the primary basis for the City's authority to request the TIA and supporting technical references. Section 4.5.1 provides that City staff may approve applications complying with the legislative scheme, while other applications "may be approved by council," a distinction relevant to Shoppes' argument that only Council could issue a refusal decision. Sections 4.5.3 and 4.5.4(2) address the duration of approvals in principle and final approvals, which Shoppes invoked to argue the 2020 Application had not expired — though, as the Court noted, s. 4.5.4 could not apply since final approval had never actually been issued. Section 41(2) of URPA provides that a council decision to adopt or approve development regulations "is final and not subject to appeal," a provision the City relied on to argue that neither the Board nor the Court had jurisdiction to assess the validity of section 4.4.1(2). Section 35(1) of URPA authorizes the enactment of development regulations, and section 352 of the City of St. John's Act was cited as granting authority to regulate development on traffic-related grounds. The appeal itself proceeded under section 3.2.5 of the Regulations and section 46 of URPA, both of which restrict statutory appeals to questions of law or jurisdiction.

Reasoning and analysis

Justice Osborne confirmed that, on a statutory appeal limited to questions of law or jurisdiction, the applicable standard of review for legal errors is correctness, and that the Court's task is to determine whether the decision-maker correctly identified and applied the governing law to the facts found, not to reweigh evidence. On the first issue, the Court held that whether the 2023 application constituted a new proposal was a question of fact or, at most, mixed fact and law, and that the Board's findings — including the passage of time, changes to the building footprint, and the addition of a drive-through — were supported by the record; no error of law was established. On the second issue, the Court exercised its discretion to consider Shoppes' new argument that only Council could issue a refusal decision, since it could be resolved on the existing record without prejudice, and found that the City's rejection of the Report was distinct from a refusal of the Development Application itself, falling within staff authority under section 4.4. On the third issue, the Court declined to consider Shoppes' late-raised argument that section 4.4.1(2) was impermissibly vague, finding the evidentiary record insufficiently developed and noting it was unclear why the argument had not been raised before the Board. On the fourth issue, the Court agreed with the Board that the City's decision was a request for further information rather than a de facto requirement to build a roundabout, and found no extricable error of law in that characterization. On the fifth issue, the Court held that the Standard Terms of Reference fell within the authority conferred by section 4.4.1(2) and rejected Shoppes' claim that it had not received the document, noting record evidence to the contrary. On the sixth issue, the Court found the Board's acceptance of the City's position on the adequacy of Shoppes' technical references was a finding of fact not subject to appellate review, and distinguished Essex Condominium Corp. No. 43 v. LaSalle (Town) on the basis that the City, unlike the municipality in Essex, had not made a policy decision to accept engineer-sealed reports without further scrutiny and employed its own traffic design professionals. The seventh issue was found to raise no new grounds beyond those already addressed.

Ruling and overall outcome

Justice Osborne dismissed each of Shoppes' seven grounds of appeal, concluding that the Board had not erred in law or jurisdiction in upholding the City's rejection of the Report and confirming the City's decision. The City of St. John's, as the successful party, was awarded costs of the appeal on a Column III basis; the judgment does not specify a dollar figure for those costs.