BM Halifax Holdings Ltd. et al. v. Nova Scotia (Attorney General) et al., 2014 NSSC 430

• Judge: Edwards, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 27, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 430;(2014), 354 N.S.R.(2d) 1 (SC)

BM Halifax Holdings v. N.S. (A.G.) (2014), 354 N.S.R.(2d) 1 (SC);

    1120 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.050

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

(Halifax No. 427522; 2014 NSSC 430)

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

Nova Scotia Supreme Court

Edwards, J.

December 17, 2014.

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 dismissed the application.

Municipal Law - Topic 3462

Bylaws - Amendment or variation - Jurisdiction - [See second 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 construction of a new convention centre (Nova Centre) was planned for downtown Halifax - Pursuant to s. 193 of the Municipal Government Act (MGA), the province of Nova Scotia enacted the Statement of Provincial Interest Regarding the Development of the Nova Centre (SPI) - The applicants applied for a declaration that the SPI was not within the province's regulation-making authority - The Nova Scotia Supreme Court dismissed the application - While the MGA was enacted as a mechanism to give municipalities more flexibility and control over their own issues, it did not give them carte blanche control over all issues - An SPI as referred to in s. 193 was one area of a land use planning power that the province had reserved for itself - Section 190 clearly and unambiguously gave the province the authority to protect provincial interests in the use and development of land - This was the identified and stated purpose of the issuance of the SPI - Nova Centre was seen to be a matter of provincial interest for the economic growth and employment opportunities it would bring to the province - In the absence of evidence of bad faith, it was not the role of the court to analyse the legislature's rationale or decision-making process in situations where it was clearly acting within its own authority - See paragraphs 32 to 53.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - The construction of a new convention centre (Nova Centre) was planned for downtown Halifax - The province of Nova Scotia determined that the existing by-laws were inconsistent with the proposed development - In order to allow the development to proceed, the province amended the by-laws by enacting the Ministerial Order establishing an Interim Area Planning Order (IPA Order) pursuant to s. 214 of the Halifax Regional Municipality (HRM) Charter - The applicants applied for a declaration that the IPA Order was not within the province's regulation-making authority - The Nova Scotia Supreme Court dismissed the application - The HRM Charter was enacted in recognition of the growing need for a special arrangement between the province and HRM as relating to development opportunities - It clearly gave the province the authority to establish an Interim Planning Area by way of Ministerial Order - The specific planning details contained in the IPA Order were consistent with the Minister's authority to regulate the development as deemed necessary to protect the provincial interest - See paragraphs 54 to 72.

Cases Noticed:

Morrison Estate v. Nova Scotia (Attorney General) (2011), 306 N.S.R.(2d) 124; 968 A.P.R. 124; 2011 NSCA 68, refd to. [para. 22].

Hartling et al. v. Nova Scotia (Attorney General) et al. (2009), 278 N.S.R.(2d) 112; 2009 NSSC 2, affd. (2009), 286 N.S.R.(2d) 219; 909 A.P.R. 219; 2009 NSCA 130, refd to. [paras. 25, 26].

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.

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, refd to. [para. 27].

Geophysical Service Inc. v. Canada (Attorney General) (2014), 345 N.S.R.(2d) 1; 1092 A.P.R. 1; 2014 NSSC 172, refd to. [para. 28].

Sobeys Group Inc. et al. v. Nova Scotia (Attorney General) et al. (2006), 248 N.S.R.(2d) 149; 789 A.P.R. 149; 2006 NSSC 290, dist. [para. 29].

Seguin (Township) v. Hamer, [2014] O.A.C. Uned. 67; 2014 ONCA 108, refd to. [para. 46].

Mr. Pawn Ltd. v. Winnipeg (City) (2002), 170 Man.R.(2d) 1; 285 W.A.C. 1; 2002 MBCA 2, refd to. [para. 46].

Toronto (City) v. Virgo, [1896] A.C. 88 (P.C.), refd to. [para. 66].

Halifax (Regional Municipality) v. DeWolfe (E.) Trucking Ltd. et al. (2007), 257 N.S.R.(2d) 276; 820 A.P.R. 276; 2007 NSCA 89, dist. [para. 68].

Thorne's Hardware Ltd. v. R. - see Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board.

Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 74].

Jafari v. Minister of Employment and Immigration (1995), 180 N.R. 330; 1995 CanLII 3592 (F.C.A.), refd to. [para. 75].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 76].

Statutes Noticed:

Halifax Regional Municipality Charter, S.N.S. 2008, c. 39, sect. 214 [para. 54].

Municipal Government Act, S.N.S. 1998, c. 18, sect. 190 [para. 37]; sect. 193 [para. 38].

Counsel:

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

Adriana L. Meloni, for the respondent.

This application was heard at Halifax, N.S., on November 27, 2014, before Edwards, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 17, 2014.