Colhoun vs RM Lumsden, COURT_Statement_of_Claim_re__R_M_.pdf February 2021

COURT FILE NUMBER Q.B.G. No. _____ of 2021
COURT OF QUEEN’S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE
PLAINTIFF
REGINA
NORMAN COLHOUN and LAURA COLHOUN
DEFENDANT RURAL MUNICIPALITY OF LUMSDEN NO. 189
NOTICE TO DEFENDANT
1. The Plaintiff may enter judgment in accordance with this Statement of Claim or the
judgment that may be granted pursuant to The Queen's Bench Rules unless, in accordance
with paragraph 2, you:
(a)
(b)
serve a Statement of Defence on the plaintiff; and
file a copy of it in the office of the local registrar of the Court for the judicial
centre named above.
2. The Statement of Defence must be served and filed within the following period of
days after you are served with the Statement of Claim (excluding the day of service):
(a)
(b)
(c)
20 days if you were served in Saskatchewan;
30 days if you were served elsewhere in Canada or in the United States of
America;
40 days if you were served outside Canada and the United States of America.
3. In many cases a defendant may have the trial of the action held at a judicial centre
other than the one at which the Statement of Claim is issued. Every defendant should consult
a lawyer as to his or her rights.
4. This Statement of Claim is to be served within 6 months from the date on which it is
issued.
5. This Statement of Claim is issued at the above-named judicial centre on the
day of February, 2021.
Court Seal
Local Registrar

STATEMENT OF CLAIM
1. The Plaintiff, NORMAN COLHOUN (“Norman”), is an individual who
resides in the Rural Municipality of Lumsden No. 189, in the Province of Saskatchewan.
2. The Plaintiff, LAURA COLHOUN (“Laura”), is an individual who resides in
the Rural Municipality of Lumsden No. 189, in the Province of Saskatchewan.
3. The Defendant, RURAL MUNICIPALITY OF LUMSDEN NO. 189 (the
“R.M.”), is a Rural Municipality located in the Province of Saskatchewan, governed by The
Municipalities Act, SS 2005, c M-36.1 (the “Municipalities Act”).
History
4. In or around March of 2013, the following property was purchased by
Norman and Laura, which thereafter has been held in joint tenancy:
Blk C, Plan No. 101443823, Extension 127
Surface Parcel No. 153739424
(the “Property”).
5. The Property was purchased by Norman and Laura with the intention of
subdividing same into approximately eleven (11) residential lots, with the remainder of the
Property being utilized for commercial purposes (the “Development”). At this time, the
Property was zoned “R1-Low Valley Residential District” (“R1”) as defined in The Rural
Municipality of Lumsden No. 189 Bylaw No. 7-2012 – Zoning Bylaw (the “Zoning
Bylaw”).
6. In or around June of 2015, a joint concept plan was submitted to the R.M. by
Norman and Laura, along with two other individuals seeking to develop adjacent property
(the “Joint Concept Plan”). The Joint Concept plan was received and reviewed by the R.M.
for approximately 5 years prior to the developers abandoning same as a result of delays.

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7. In or around 2015, Norman and Laura retained the services of Clifton
Associates to complete a geotechnical assessment on the Property, which was completed on
or around April 1, 2015 (the “Report”). The Report revealed that increased slope stability
can be achieved with the removal of aggregate from the Property, stating that the “excavation
of aggregates at the top of the slope would unload the crest of the slop and reduce the driving
force from any landslides, increasing the stability of the slope.”
8. Norman and Laura determined that it was necessary to excavate the aggregate
at the top of the slope prior to moving forward with the Development, as recommended in the
Report. Aggregate extraction is not a permitted or discretionary use for R1 properties,
pursuant to the Zoning Bylaw.
9. As such, Norman and Laura determined that it would be appropriate/necessary
to rezone the Property from R1 to “A – Agricultural District” as defined by the Zoning
Bylaw, which would allow for the discretionary use of the Property to remove the aggregate.
10. Prior thereto, Norman and Laura sought to subdivide the northern most 25%
of the Property, being approximately 2.11 acres, and rezone same to “C2 - Highway
Commercial District” as defined in the Zoning Bylaw (the “Subdivision”). Norman and
Laura submitted a Development Permit Application to the R.M requesting the Subdivision on
or around October 22, 2019 (the “Subdivision Application”).
11. In response to the Subdivision Application, the R.M. passed Resolution No.
2019-578 at the Regular Council Meeting held on December 12, 2019, which reads
(“Resolution No. 2019-578”):
"That we agree to table Development Application #2019-038 and the associated Bylaw
No. 25-2019 [a bylaw to rezone the lands proposed for subdivision], until the applicant
submits a revised plan of proposed subdivision, showing road allowance widening from
twenty-two (22) to thirty (30) metres on the undeveloped RM road legally described as,
Surface Parcel No. 111090192, which provides access to the proposed subdivision, in
order for the applicant to be able to upgrade the road to a commercial/industrial standard in
accordance with the RM Road Servicing Agreement Policy."

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12. The property referenced in Resolution No. 2019-578, being NW 32-19-21
W3, Surface Parcel No. 111090192 (“NW 32”), is not the subject matter of the Subdivision,
the Subdivision Application, nor owned by Norman or Laura. For further clarity, Emshay
Enterprises Ltd. is the registered owner of NW 32.
13. On or around January 28, 2020, Jeremy Dela Cruz (“Mr. Dela Cruz”),
Planning Consultant for the Government of Saskatchewan, commented on the
inappropriateness of Resolution No. 2019-578, stating:
…Under 184 of The Planning and Development Act, 2007 the approving authority may
require the owner of land that is subject of the proposed subdivision to provide without
compensation part of that land in any location that the approving authority considers
necessary to the Crown. The important clause is that the request of the dedication must be
applicable to the subject land of the proposed subdivision and cannot be extended outside
of the proposed subdivision application….
14. In response to the comments of Mr. Dela Cruz, the R.M. passed Resolution
No. 2020-119 at the Regular Council Meeting held on March 19, 2020 (“Resolution No.
2020-119”), which reads, in part, that “we deny Development Application #2019-038 to
rezone and subdivide land…The RM is unwilling to initiate highway commercial rezoning
proceedings unless it is ensured that the developer has secured land to upgrade the
undeveloped access road to a standard suitable for highway commercial development.”
15. As a result, Norman and Laura were forced to appeal the decision to the
Planning Appeals Committee (the “Appeal”), a committee of the Saskatchewan Municipal
Board (the “SMB”). The Appeal was set down for a hearing date of September 22, 2020 (the
“Hearing Date”).
16. Prior to the Hearing Date, the R.M. had failed and/or refused to present
Norman and Laura with a serving agreement in relation to the Subdivision Application.

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17. On the Hearing Date, the SMB made a verbal request for the R.M. to
negotiate the terms of the Subdivision Application in good faith, and also required the R.M.
to provide Norman and Laura with a serving agreement on or before November 4, 2020.
18. Following November 4, 2020, there were continued delays in the R.M.
completing and providing a servicing agreement to Norman and Laura. As at the date hereof,
Norman and Laura have not yet received confirmation from the R.M. that a servicing
agreement has been entered into, despite executing same and paying the required fee to the
R.M.
19. Between the date of the Subdivision Application and the date hereof, Norman
and Laura have witnessed numerous applications of a similar nature from third parties be
approved by the R.M., including an application from an adjacent landowner. For further
clarity, Norman and Laura submit that the Subdivision Application is being subjected to a
unique set of rules, reviews, and is not being moved forward in a timely manner.
20. As a result of the difficulty Normand and Laura have experienced in moving
this matter forward, they have sustained the following damages:
(a)
(b)
(c)
(d)
Costs associated with retaining third party professionals to assist with the
Subdivision Application;
Costs associated with the Appeal;
Increased costs and standby costs in relation to the Development; and
Lost revenue and opportunities in relation to the delay in completion and
approval of the Subdivision Application.
Procedural Fairness
21. It is trite law that the R.M. owes a duty of fairness to Norman and Laura in all
decisions that affect their rights, privileges, or interests. Moreover, in the event a prescribed

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process is in place, compliance with said process sets a minimum level of procedural fairness
to be afforded and creates a legitimate expectation that it will be followed.
22. Norman and Laura submit that the R.M. has breached the duty of fairness
owed to them. Examples of such procedural unfairness include, but are not limited to, the
following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Failing to “enter into a servicing agreement within 90 days after the day that
the municipality receives the subdivision application,” contrary to Section
172(5) of The Planning and Development Act, 2007, SS 2007, c P-13.2 (the
“Act”);
Failing to provide, amend and/or address issues surrounding any required
servicing agreement in a timely and reasonable manner;
Failing and/or refusing to consider the Subdivision Application in a timely
and reasonable manner;
Imposing conditions in a servicing agreement without authority, particularly
the requirement to utilize land owned by a third party for road widening,
contrary to Section 184 of the Act;
Failure to consider and apply Section 3(a) of the Road Development Policy;
Failure to raise concerns in regard to road widening in a timely and reasonable
manner. For example, the failure to raise any such concern during the fiveyear
period the Joint Concept Plan was being considered; and
Preferring other subdivision/rezoning applications over the Subdivision
Application.
23. As a result of the actions of the R.M., Norman and Laura have sustained
damages including, but not limited to, the damages outlined at Paragraph 20 above, in an
amount to be proven at trial.

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24. Norman and Laura also claim that the Subdivision Application be returned to
the R.M. for a decision to be made in accordance with the principles of natural justice.
25. Norman and Laura also claim for elevated costs in relation to this action as a
result of the R.M.’s mishandling the Subdivision Application, resulting in the necessity to
commence the within action.
Negligence
26. Further, or in the alternative, Norman and Laura submit that they and the R.M.
had a sufficient relationship to impose a duty of care, which required the R.M. to act in a fair,
just and reasonable manner. Norman and Laura further submit that the failure and/or refusal
of the R.M. to consider the Subdivision Application in a reasonable manner gave rise to
reasonably foreseeable damages.
27. Norman and Laura submit that the R.M. was negligent in carrying out its duty
of care as follows:
(a)
(b)
(c)
The conduct outlined at Paragraph 22 above;
Failing to properly read, interpret and apply the Act; and
Failing to correct the errors in a timely and reasonable manner, despite same
being repeatedly brought to the attention of the R.M.
28. As a result of the actions of the R.M., Norman and Laura have sustained
damages including, but not limited to, the damages outlined at Paragraph 20 above, in an
amount to be proven at trial.
29. Norman and Laura submit that the R.M. is unable to rely upon the statutory
immunity outlined in Section 339 of the Municipalities Act as, at all material times, the R.M.
lacked a bona fide belief that its actions were justified, had knowledge that its actions were

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not justified, had the intention to cause harm to Norman and Laura, and/or its behavior was
markedly inconsistent with the legislative context.
Malfeasance of Public Office
30. Further, or in the alternative, at all material times, the R.M. engaged in
deliberate and unlawful conduct that was likely to cause harm, and did in fact cause harm to
Norman and Laura. Such conduct included, but was not limited to, the conduct outlined at
Paragraphs 13 and 16 above.
31. As a result of the actions of the R.M., Norman and Laura have sustained
damages including, but not limited to, the damages outlined at Paragraph 11 above, in an
amount to be proven at trial.
Vicarious Liability
32. Further, or in the alternative, the R.M. is vicariously liable for the actions of
the development officer by virtue of Section 356 of the Municipalities Act, whom Norman
and Laura submit denied them procedural fairness, acted in a negligent manner, and/or acted
with malfeasance, as outlined at Paragraphs 22 and 27 above.
33. As a result of the actions of the R.M., or agent thereof, Norman and Laura
have sustained damages including, but not limited to, the damages outlined at Paragraph 20
above, in an amount to be proven at trial.
34. Therefore, the Plaintiffs, Norman Colhoun and Laura Colhoun, claim from the
Defendant, Rural Municipality of Lumsden No. 189, as follows:
(a)
(b)
General damages in an amount to be determined at trial;
Referral of the Subdivision Application back to the R.M. to be decided in
accordance with the principles of natural justice;

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(c)
(d)
(e)
Interest pursuant to The Pre-judgment Interest Act, SS 1984-85-86, c P-22.2;
Costs of and incidental to the within action on a solicitor/client basis; and
Such further and other relief as this Honourable Court may allow and counsel
may advise.
DATED at Swift Current, Saskatchewan, this _____ day of February, 2021.
KANUKA THURINGER LLP
Per:
Solicitors for the Plaintiffs,
Norman Colhoun and Laura Colhoun
CONTACT INFORMATION AND ADDRESS FOR SERVICE
KANUKA THURINGER LLP
Barristers and Solicitors
302 - 350 Cheadle Street West
Swift Current, Saskatchewan
S9H 4G
Address for Service: Same as above
Telephone: (306) 773-4800
Fax: (306) 773-0040
Email address: rnagel@ktllp.ca
Lawyer in Charge of File:
42033-0001
DM 2792500 v1
Ryan M. Nagel