Written by John Gescher

A question often asked by parties who have obtained a development permit and are then faced with an Appeal to the Court of Appeal challenging that permit is, can I be compensated for the delay in the development of the project? 

In the recent case of Liquor Stores Limited Partnership v. Edmonton (City), 2018 ABCA 34 (CanLII) http://canlii.ca/t/hq2nl the Alberta Court of Appeal found that costs could not be enhanced on this basis.

The Respondent to the Appeal had been granted a development permit by the Subdivision and Development Appeal Board for a liquor store. The Appellant, who was a competitor, applied for and was granted permission to appeal on April 28, 2017. The Appeal was heard on November 29, 2017 and a decision dismissing the appeal was given by the court on December 19, 2017.  

One of the arguments for enhanced costs made by counsel for the respondent was that the respondent “should be compensated for the fact that he was not able to take advantage of his development permit and operate a liquor store in the Terwilligar Gardens Shopping Centre until Liquor Stores’ appeal was resolved. An application for permission to appeal serves, in effect, as a stay order.”

While the Court did increase cost it declined to increase costs on the basis of this argument. The Court stated “While we accept that Mr. Aggarwal has been inconvenienced by the delay associated with the time it has taken to dispose of the appeal – April 28, 2017 to December 19, 2017 – there is no legal basis to give him an enhanced costs award to compensate him for this.”

The Court also noted that in the case there had been no litigation misconduct and counsel for the appellant behaved in a civil and constructive manner observing the time lines in the rules of court.

The Court stated “A person who is granted permission to appeal a subdivision and development appeal order does not have to undertake, in the event the appellant loses the appeal, to pay the respondent any damages the respondent may suffer as a result of the delay associated with the hearing of the appeal.”