Antigonish (County) v. Antigonish (Town), (2006) 241 N.S.R.(2d) 332 (CA)

• Judge: Cromwell, Freeman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 07, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 241 N.S.R.(2d) 332 (CA);2006 NSCA 29

Antigonish v. Antigonish (2006), 241 N.S.R.(2d) 332 (CA);

    767 A.P.R. 332

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. MR.009

Town of Antigonish (appellant) v. Municipality of the County of Antigonish (respondent)

(CA 242677; 2006 NSCA 29)

Indexed As: Antigonish (County) v. Antigonish (Town)

Nova Scotia Court of Appeal

Cromwell, Freeman and Oland, JJ.A.

March 7, 2006.

Summary:

The Municipality of the County of Antigonish applied to the Nova Scotia Utility and Review Board for amalgamation with the Town of Antigonish. The Board ruled that it had jurisdiction under s. 358 of the Municipal Government Act to hear the application. The Town appealed, submitting, (1) that the result would be the forced creation of a regional municipality, which was beyond the Board's jurisdiction; (2) the amalgamation would result in the dissolution of the Town contrary to s. 394 of the Act; and (3) the Board erred by considering irrelevant factors in exercising its discretion.

The Nova Scotia Court of Appeal dismissed the appeal.

Administrative Law - Topic 2146

Natural justice - Administrative decisions or findings - Effect of consideration of irrelevant evidence - [See Municipal Law - Topic 8410 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - [See Public Utilities - Topic 4741 ].

Municipal Law - Topic 8202

Dissolution of municipalities - General - Method - [See Municipal Law - Topic 8410 ].

Municipal Law - Topic 8410

Amalgamation - General - Jurisdiction - The Nova Scotia Utility and Review Board ruled that it had jurisdiction to hear an application under s. 358 of the Municipal Government Act by the Municipality of the County of Antigonish for amalgamation with the Town of Antigonish - The Town appealed, submitting that (1) the result would be the forced creation of a regional municipality, which was beyond the Board's jurisdiction (permissible only under s. 372); (2) the amalgamation would result in the dissolution of the Town contrary to s. 394 of the Act; and (3) the Board erred by considering irrelevant factors - The Nova Scotia Court of Appeal dismissed the appeal - Section 372, which dealt with the creation of regional municipalities, did not displace and was not paramount to a s. 358 amalgamation or annexation - They were two distinct procedures which overlapped, but did not result in internal conflict, repugnancy or inconsistency - Notwithstanding the existence of s. 394 dealing with dissolution of a Town, the fact that an amalgamation resulted in dissolution in favour of a new entity did not negate the Board's jurisdiction - Finally, respecting the two irrelevant factors allegedly relied on by the Board, one factor was relevant and the other was not determinative where the Board stated that its decision would be the same whether or not the other factor was considered - See paragraphs 26 to 50.

Municipal Law - Topic 8705

Regional municipalities - General - Creation of - Jurisdiction - [See Municipal Law - Topic 8410 ].

Public Utilities - Topic 4741

Public utility commissions or corporations (incl. private providers) - Judicial review - General (incl. standard of review) - The Nova Scotia Court of Appeal held that a decision of the Nova Scotia Public Utility and Review Board on the issue of its own jurisdiction was subject to review, on appeal, on the standard of correctness - See paragraphs 14 to 20.

Cases Noticed:

Myers v. Mannette (2003), 216 N.S.R.(2d) 106; 680 A.P.R. 106; 2003 NSCA 64, refd to. [para. 15].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 16].

Creager v. Provincial Dental Board (N.S.) (2005), 230 N.S.R.(2d) 48; 729 A.P.R. 48; 2005 NSCA 9, refd to. [para. 16].

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 24].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 24].

Bristol-Myers Squibb Co. et al. v. Canada (Attorney General) et al. (2005), 334 N.R. 55 (S.C.C.), refd to. [para. 24].

Municipal Contracting Ltd. v. Nova Scotia (Attorney General) (2003), 212 N.S.R.(2d) 36; 665 A.P.R. 36; 2003 NSCA 10, refd to. [para. 26].

Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488, refd to. [para. 43].

Tabernacle Permanent Building Society v. Knight, [1892] A.C. 298 (H.L.), refd to. [para. 43].

Macpump Developments Ltd. v. Sarnia (City) (1994), 75 O.A.C. 378; 20 O.R.(3d) 755 (C.A.), refd to. [para. 52].

Statutes Noticed:

Municipal Government Act, S.N.S. 1998, c. 18, sect. 3(ar) [para. 7]; sect. 3(aw) [para. 6]; sect. 358 [para. 5]; sect. 363(3) [para. 61]; sect. 372 [para. 9]; sect. 394 [para. 51].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 24].

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (2003), vol. 1, p. 71 [para. 52].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 159 [para. 39]; 262, 263 [para. 42]; 273 [para. 56]; 499 [para. 26].

Counsel:

John MacPherson, Q.C., and Jack Innes, Q.C., for the appellant;

Robert Grant, Q.C., and Nancy Rubin, for the respondent;

Bruce Outhouse, Q.C., for the Nova Scotia Utility and Review Board, not present;

Edward Gores, Q.C., for the Attorney General of Nova Scotia, not present;

Gary Cusack, in person, for the Antigonish Chamber of Commerce, not present.

This appeal was heard on September 23, 2005, at Halifax, N.S., before Cromwell, Freeman and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On March 7, 2006, Oland, J.A., delivered the following judgment for the Court of Appeal.