Ross, Barrett & Scott et al. v. A.S., (1994) 136 N.S.R.(2d) 9 (SC)

• Judge: Kelly, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 21, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 136 N.S.R.(2d) 9 (SC)

Ross, Barrett & Scott v. A.S. (1994), 136 N.S.R.(2d) 9 (SC);

  388 A.P.R. 9

MLB headnote and full text

Ross, Barrett & Scott and Gillis & Walden (appellants) v. Trevor Townsend in his capacity as guardian ad litem for the infant A.S. (respondent)

(S.H. 104680)

Indexed As: Ross, Barrett & Scott et al. v. A.S.

Nova Scotia Supreme Court

Kelly, J.

July 21, 1994.

Summary:

A law firm provided legal services to a child pursuant to the Children and Family Services Act (N.S.). Their account for ser­vices was taxed. The Taxing Master stated he was bound by the tariff set out in s. 46 of the Children and Family Services Act Regu­la­tions, and rendered a decision accordingly. The law firm appealed alleg­ing, inter alia, s. 46 was inconsistent with s. 37(4) of the Children and Family Services Act, and therefore ultra vires.

The Nova Scotia Supreme Court allowed the appeal, and remitted the matter to the Taxing Master.

Statutes - Topic 1831

Interpretation - Intrinsic aids - Preamble - General - The Nova Scotia Supreme Court had to determine whether or not s. 46 of the Children and Family Services Act Regulations (N.S.) was "inconsistent" with s. 37(4) of the Act - The court held the regulation was inconsistent with s. 37(4) of the Act, and was ultra vires - The court opined that when it is asked to de­termine if an inconsistency exists between a regu­lation and it's parent statute, the whole statute, including the preamble, must be considered, and not only the auth­orizing section.

Statutes - Topic 5364

Operation and effect - Delegated legisla­tion - Regulations - Validity of - Conflict with statute authorizing the regulation - The Nova Scotia Supreme Court had to determine whether or not s. 46 of the Children and Family Services Act Regula­tions (N.S.) was "inconsistent" with s. 37(4) of the Act - The court held the regulation did conflict with the Act, and was ultra vires - In reaching it's decision, the court discussed the parameters of the Governor-in-Council's rights to make Regulations, and the restrictions imposed on courts regarding regulatory review - See paragraphs 8 to 59.

Statutes - Topic 5367

Operation and effect - Delegated legisla­tion - Regulations - Validity of - Ultra vires - Whether purpose of regulation authorized by empowering statute - The Nova Scotia Supreme Court had to deter­mine whether or not s. 46 of Children and Family Services Act Regulations (N.S.) was inconsistent with s. 37(4) of the Act, which dealt with, inter alia, payment of "reasonable fees and disbursements" to a child's counsel - The court held the regu­lation was inconsistent with the Act, and was ultra vires - The court did recognize ss. 99(1)(o) and (ag) of the Act authorized the making of regulations dealing with payment of fees, however stated such authorization did not allow the Governor-in-Council to make regulations which con­flicted with the Act, its intents or pur­poses - See para­graphs 8 to 59.

Words and Phrases

Reasonable fees and disbursements - The Nova Scotia Supreme Court discussed the meaning of the phrase "reasonable fees and disbursements", as found in s. 37(4) of the Children and Family Services Act, S.N.S. 1989, c. 5 - See paragraphs 8 to 57.

Cases Noticed:

Investment Property Owners' Association of Nova Scotia v. Nova Scotia (1984), 65 N.S.R.(2d) 319; 147 A.P.R. 319 (C.A.), refd to. [para. 23].

Irving Oil Ltd. et al. v. National Harbours Board (1983), 46 N.R. 91 (S.C.C.), refd to. [para. 25].

Wentzell et al. v. Nova Scotia (1985), 70 N.S.R.(2d) 181; 166 A.P.R. 181 (C.A.), refd to. [para. 26].

Dartmouth (City) v. O'Hearn (1981), 46 N.S.R.(2d) 194; 89 A.P.R. 194 (T.D.), refd to. [para. 40].

Amdue Holdings Ltd. v. Calgary (City) (1976), 15 A.R. 271; 11 L.C.R. 372 (Land Comp. Bd.), refd to. [para. 41].

Dill v. Windsor (Town) (1976), 16 N.S.R.(2d) 560; 16 A.P.R. 560 (C.A.), refd to. [para. 42].

Belanger v. R. (1916), 34 D.L.R. 221 (S.C.C.), refd to. [para. 47].

Booth v. R. (1915), 51 S.C.R. 20, refd to. [para. 47].

Grand Trunk Pacific Railway Co. v. Fort William (City) (1910), 43 S.C.R. 412, refd to. [para. 47].

Metropolitan Toronto Police Associ­ation v. Inflation Restraint Board et al. (1984), 4 O.A.C. 150; 9 D.L.R.(4th) 634 (Div. Ct.), refd to. [para. 48].

Trans-Canada Pipe Lines Ltd. v. Saskatchewan (Treasurer) (1968), 67 D.L.R.(2d) 694 (Sask. Q.B.), refd to. [para. 49].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541; 68 D.L.R.(3d) 452, refd to. [para. 51].

Attorney General v. Wilts United Dairies (1922), 91 L.J.K.B. 897 (H.L.), appld. [para. 55].

Statutes Noticed:

Barristers and Solicitors Act, R.S.N.S. 1989, c. 30, sect. 41 [para. 37].

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 2(2) [para. 50]; sect. 33(1), sect. 33(4) [para. 2]; sect. 37(1) [para. 29]; sect. 37(2) [para. 5]; sect. 37(3) [para. 30]; sect. 37(4) [para. 10]; sect. 99(1)(o), sect. 99(1)(ag), sect. 99(1)(ah) [para. 20].

Children and Family Services Act Regu­lations (N.S.), sect. 46 [para. 11].

Civil Procedure Rules (N.S.), rule 63.04 [para. 6]; rule 63.16 [para. 37].

Education and Health Tax Act, R.S.S. 1965, c. 66, gen­erally [para. 49].

Expropriation Act, R.S.N.S. 1989, c. 156, generally [para. 36].

Legal Aid Act, S.N.S. 1977, c. 11, gen­erally [para. 32].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (2nd Ed. 1983), p. 323 [para. 22].

Nova Scotia Barrister's Society, Legal Ethics and Professional Conduct, gen­erally [para. 39].

Thompson, D.A.R., The Annotated Children and Family Services Act, (1991), gen­erally [para. 50].

Counsel:

Brian J. Hebert, for the appellants;

Alison W. Scott, for the respondent.

This appeal was heard on July 21, 1994, at Halifax, Nova Scotia, before Kelly, J., in Chambers, of the Nova Scotia Supreme Court, who delivered orally the following judgment on the same date, with written rea­sons released on September 13, 1994.