Can-Euro Investments Ltd. v. Ollive Properties Ltd. et al., (2013) 332 N.S.R.(2d) 219 (CA)

• Judge: MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 12, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 332 N.S.R.(2d) 219 (CA);2013 NSCA 80

Can-Euro Inv. Ltd. v. Ollive Prop. (2013), 332 N.S.R.(2d) 219 (CA);

    1052 A.P.R. 219

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JN.063

Can-Euro Investments Limited (appellant) v. Ollive Properties Limited and Halifax Regional Municipality and The Attorney General of Nova Scotia and The Nova Scotia Utility and Review Board (respondents)

(CA 413747; 2013 NSCA 80)

Indexed As: Can-Euro Investments Ltd. v. Ollive Properties Ltd. et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A.

June 12, 2013.

Summary:

The case before the Nova Scotia Utility and Review Board concerned an appeal taken by Ollive Properties Ltd. of a development agreement which had been approved, to the benefit of Can-Euro Investments Ltd. Ollive Properties announced on the fifth day of the hearing that it was withdrawing its appeal. The Board (comprising a single member) terminated the proceedings. Both the Board's subsequent decision and order expressed findings of fact which were very critical of Can-Euro and its president, and bore no relationship to Ollive's withdrawal of its appeal. Can-Euro appealed, pursuant to s. 30 of the Utility and Review Board Act.

The Nova Scotia Court of Appeal allowed the appeal on the ground that the Board's actions violated fundamental principles of administrative law and procedural fairness.

Administrative Law - Topic 2142.1

Natural justice - Administrative decisions or findings - Ruling in advance of submissions - [See Administrative Law - Topic 2143 ].

Administrative Law - Topic 2143

Natural justice - Administrative decisions or findings - Duty of administrative bodies to act fairly and observe rules of natural justice - The case before the Nova Scotia Utility and Review Board concerned an appeal taken by Ollive Properties Ltd. of a development agreement which had been approved, to the benefit of Can-Euro Investments Ltd. - Ollive Properties announced on the fifth day of the hearing that it was withdrawing its appeal - The Board member terminated the proceedings - Both the Board's subsequent decision and the order expressed findings of fact which were very critical of Can-Euro and its president, and bore no relationship to Ollive's withdrawal of its appeal - Can-Euro appealed, arguing that the Board's order should be quashed because (1) the Board lacked jurisdiction to issue it; and (2) because the Board's actions violated fundamental principles of administrative law and procedural fairness - Its first submission was based on the proposition that once Ollive Properties announced that it was withdrawing its appeal, the Board was functus officio - The Nova Scotia Court of Appeal stated that "[w]hile this assertion has merit, I prefer not to dispose of the appeal on that basis. I can imagine situations where in somewhat similar circumstances a decision-maker might not be functus and might have continuing responsibilities to fulfil in the ongoing exercise of its jurisdiction" - The Board's actions violated fundamental principles of administrative law and procedural fairness - The most serious failings were the Board's adjudicating the merits before hearing all the evidence; making adverse findings after the appeal had been abandoned and without notice to the parties or giving those affected any chance to be heard; and expressing conclusions which impugned the integrity and good faith of Can-Euro and its president, which found no support in the record.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 2143 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See Administrative Law - Topic 2143 ].

Administrative Law - Topic 2402

Natural justice - Procedure - General - Duty of fairness - [See Administrative Law - Topic 2143 ].

Administrative Law - Topic 9006

Boards and tribunals - Jurisdiction - General - Termination of (functus officio) - [See Administrative Law - Topic 2143 ].

Administrative Law - Topic 9069

Boards and tribunals - Jurisdiction of particular boards and tribunals - Energy and utility boards - [See Administrative Law - Topic 2143 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

Amherst (Town) et al. v. Superintendent of Pensions (N.S.) (2008), 268 N.S.R.(2d) 339; 857 A.P.R. 339; 2008 NSCA 74, refd to. [para. 14].

Can-Euro Investments Ltd. v. Nova Scotia Utility and Review Board et al. (2008), 272 N.S.R.(2d) 309; 869 A.P.R. 309; 2008 NSCA 123, refd to. [para. 14].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 14].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 14].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 14].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 14].

Robinson v. Nova Scotia Power Inc. et al. (2012), 321 N.S.R.(2d) 44; 1018 A.P.R. 44; 2012 NSCA 93, refd to. [para. 14].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 29].

Statutes Noticed:

Utility and Review Board Act, S.N.S. 1992, c. 11, sect. 30(1) [para. 13].

Counsel:

Dennis James and Kimberley Pochini, for the appellant;

Nancy Rubin, Q.C., for the respondent, Ollive Properties Ltd., not participating;

E. Roxanne MacLaurin, for the respondent, Halifax Regional Municipality, not participating;

Edward A. Gores, Q.C., for the respondent, Attorney General of Nova Scotia, not participating;

Elaine Wagner, for the respondent, Nova Scotia Utility and Review Board, not participating.

This appeal was heard and decided on June 12, 2013, in Halifax, Nova Scotia, before MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. Saunders, J.A., delivered the following reasons for judgment, dated June 27, 2013.