BM Halifax Holding Ltd. et al. v. Nova Scotia (Attorney General) et al., 2015 NSCA 89

• Judge: MacDonald, C.J.N.S., Fichaud and Van den Eynden, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 01, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 89;(2015), 365 N.S.R.(2d) 296 (CA)

BM Halifax Holding v. N.S. (A.G.) (2015), 365 N.S.R.(2d) 296 (CA);

    1151 A.P.R. 296

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.009

BM Halifax Holding Limited, TDB Halifax Holdings Limited and Robin Halifax Holdings Limited (appellants) v. The Attorney General of Nova Scotia, Representing Her Majesty the Queen in Right of the Province of Nova Scotia (respondent)

(CA 435638; 2015 NSCA 89)

Indexed As: BM Halifax Holding Ltd. et al. v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Fichaud and Van den Eynden, JJ.A.

October 6, 2015.

Summary:

The construction of a new convention centre (Nova Centre) was being planned for downtown Halifax. In order to proceed with the development, the province of Nova Scotia enacted two regulations: (1) the Statement of Provincial Interest Regarding the Development of the Nova Centre (enacted pursuant to s. 193 of the Municipal Government Act); and (2) the Ministerial Order establishing an Interim Area Planning Order (enacted pursuant to s. 214 of the Halifax Regional Municipality Charter). The applicants applied for declarations that the impugned regulations were not within the regulation-making authority of their respective enabling statutes.

The Nova Scotia Supreme Court, in a decision reported at (2014), 354 N.S.R.(2d) 1; 1120 A.P.R. 1, dismissed the application. The applicants appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Land Regulation - Topic 2002

Land use control - General principles - Scheme of legislation - [See both Statutes - Topic 5367 ].

Statutes - Topic 5352

Operation and effect - Delegated legislation - Regulations - Scope of regulation-making power - [See both Statutes - Topic 5367 ].

Statutes - Topic 5363

Operation and effect - Delegated legislation - Regulations - Validity of - Scope of authority to make - [See both Statutes - Topic 5367 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - The Halifax Regional Municipality (HRM) and the province of Nova Scotia believed that the construction of a new convention centre would bring significant economic benefit to the area - Sub-grade work had already begun when amendments to the above-grade design were proposed - The approval process for the amendments was expected to take eight months - Due to concerns that the momentum of construction would suffer if sub-grade work was stopped in the meantime, the province enacted, inter alia, a Statement of Provincial Interest (SPI) pursuant to s. 193 of the Municipal Government Act (MGA), which allowed the sub-grade work to continue while the above-grade design changes were considered - The applicants' application for a declaration that the SPI was not within the province's regulation-making authority was dismissed - They appealed, arguing that s. 193 authorized an SPI which acted as a shield, not a sword - The Nova Scotia Court of Appeal dismissed the appeal - The objective of the MGA and the HRM Charter was to protect the province's interest in the development of land - The province was not confined to just stopping a development that offended the provincial interest - It could also promote a development and attempt to avoid the adverse consequences of a stalled development in which it had a substantial investment - The province clearly had an ascertainable interest in the timely development of the convention centre, which was the interest identified by the SPI - The SPI was intra vires - See paragraphs 30 to 43.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - The Halifax Regional Municipality (HRM) and the province of Nova Scotia believed that the construction of a new convention centre would bring significant economic benefit to the area - Sub-grade work had already begun when amendments to the above-grade design were proposed - The approval process for the amendments was expected to take eight months - Due to concerns that the momentum of construction would suffer if sub-grade work was stopped in the meantime, the province enacted two regulations that allowed the sub-grade work to continue while the above-grade design changes were considered: (1) a Statement of Provincial Interest (SPI) enacted pursuant to the Municipal Government Act; and (2) an Interim Planning Area (IPA) Order enacted pursuant to the HRM Charter - The applicants' application for a declaration that the IPA Order was not within the province's regulation-making authority was dismissed - The Nova Scotia Court of Appeal dismissed the applicants' appeal - Section 214(3)(b) of the HRM Charter stated that an IPA Order could be issued where development that was inconsistent with an SPI might occur, and the Minister was satisfied that there were necessary and compelling reasons to establish an IPA to protect the provincial interest - Those requirements were met here - The SPI stated that timely construction of the sub-grade portion was a matter of provincial interest - Without the IPA Order, work might have stalled, causing increased construction costs for which the province would be liable, and a delay in the ultimate benefits of its investment - The IPA Order was intra vires - See paragraphs 45 to 57.

Cases Noticed:

Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al., [2013] 3 S.C.R. 810; 451 N.R. 80; 312 O.A.C. 169; 2013 SCC 64, appld. [para. 31].

Katz Group Canada Inc. v. Ontario (Health and Long-Term Care) - see Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al.

Elderkin et al. v. Nova Scotia (Minister of Service Nova Scotia and Municipal Relations) (2013), 331 N.S.R.(2d) 372; 1051 A.P.R. 372; 2013 NSCA 79, refd to. [para. 34].

Statutes Noticed:

Halifax Regional Municipality Charter, S.N.S. 2008, c. 39, sect. 208 [para. 33]; sect. 213 [para. 39]; sect. 214(3)(b) [para. 45].

Municipal Government Act, S.N.S. 1998, c. 18, sect. 190 [para. 33]; sect. 193 [para. 16].

Counsel:

Victor J. Goldberg and Ezra B. van Gelder, for the appellants;

Adriana L. Meloni, for the respondent.

This appeal was heard in Halifax, N.S., on June 1, 2015, before MacDonald, C.J.N.S., Fichaud and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following reasons for judgment for the court on October 6, 2015.