Can-Euro Investments Ltd. v. Nova Scotia Utility and Review Board et al., 2008 NSCA 123

• Judge: Roscoe, Cromwell and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 23, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSCA 123;(2008), 272 N.S.R.(2d) 309 (CA)

Can-Euro Inv. Ltd. v. N.S. Utility (2008), 272 N.S.R.(2d) 309 (CA);

    869 A.P.R. 309

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. DE.045

Can-Euro Investments Limited (appellant/respondent on cross-appeal) v. Nova Scotia Utility and Review Board, Halifax Regional Municipality and Dexel Developments Limited (respondents/appellants on cross-appeal)

(CA 289704; 2008 NSCA 123)

Indexed As: Can-Euro Investments Ltd. v. Nova Scotia Utility and Review Board et al.

Nova Scotia Court of Appeal

Roscoe, Cromwell and Oland, JJ.A.

December 23, 2008.

Summary:

A municipality approved a development agreement for the construction of two buildings with mixed commercial/residential uses. The only access to the development site was an equitable easement and right-of-way over land owned by Can-Euro. Can-Euro appealed, submitting that the decision did not reasonably carry out the intent of the Municipal Planning Strategy, where the municipality entered into the agreement before all access issues were resolved. At the appeal hearing, Can-Euro called evidence, then closed its case. When the adjourned hearing resumed, Can-Euro's request for an adjournment to call additional evidence was refused. The Nova Scotia Utility and Review Board, subject to ordering three "minor amendments" to the commercial content of the two buildings, approved the agreement as reasonably carrying out the intent of the Municipal Planning Strategy. The Board held that it had jurisdiction to amend the development agreement to limit cumulative square footage, restrict hours of retail operation and exclude certain types of businesses. Can-Euro appealed. The developer and municipality cross-appealed.

The Nova Scotia Court of Appeal dismissed the appeal and allowed the cross-appeal. Can-Euro failed to prove that the Board erred in finding that the development agreement reasonably carried out the intent of the Municipal Planning Strategy. The Board, by ordering what it considered to be "minor amendments" to minor aspects of the development agreement, impermissibly substituted its opinion for that of the municipality, exceeding its appeal powers under s. 251(2) of the Municipal Government Act.

Administrative Law - Topic 523

The hearing and decision - Conduct of hearing - Reopening of - A municipality approved a development agreement for the construction of two buildings with mixed commercial/residential uses - The only access to the development site was an equitable easement and right-of-way over land owned by Can-Euro - Can-Euro appealed, submitting that the decision did not reasonably carry out the intent of the Municipal Planning Strategy, where the municipality entered into the agreement before all access issues were resolved - Can-Euro presented its evidence and closed its case - The matter was adjourned - Upon resumption of the hearing, Can-Euro sought to reopen its case to introduce new evidence and also sought an adjournment to replace counsel, who had withdrawn - The Nova Scotia Utility and Review Board denied the requests where the evidence had been available, but was not presented - The Board noted that Can-Euro remained entitled to call rebuttal evidence - The adjournment was requested shortly before the hearing recommenced - No effort had been made to find replacement counsel and Can-Euro's president, who wished to represent Can-Euro himself, had health problems which would require an indefinite adjournment - Can-Euro appealed - The Nova Scotia Court of Appeal held that the Board did not err in exercising its discretion to refuse to reopen the case or grant an adjournment - Can-Euro was not prejudiced, as it subsequently received (three days later) the same three week adjournment it had requested - See paragraphs 30 to 38.

Administrative Law - Topic 526

The hearing and decision - Conduct of hearing - Adjournments - [See Administrative Law - Topic 523 ].

Land Regulation - Topic 3035

Land use control - Development agreements - Contents - Consistency with intent of municipal planning strategy - A municipality approved a development agreement for the construction of two buildings with mixed commercial/residential uses - The only access to the development site was an equitable easement and right-of-way over land owned by Can-Euro - Can-Euro appealed, submitting that the decision did not reasonably carry out the intent of the Municipal Planning Strategy (MPS), where the municipality entered into the agreement before all access issues were resolved - The Nova Scotia Utility and Review Board allowed Can-Euro's appeal (agreement not consistent with MPS), but went on to order that with three "minor amendments" to the commercial content of the two buildings, the agreement would be approved as reasonably carrying out the intent of the MPS - Can-Euro failed to establish that relevant access issues were unresolved or that the traffic consequences of the development did not reasonably carry out the intent of the MPS - The Board held that it had jurisdiction to amend the development agreement to limit cumulative square footage, restrict hours of retail operation and exclude certain types of businesses - The Nova Scotia Court of Appeal restored the municipality's decision - Section 251(2) of the Municipal Government Act precluded the Board from allowing an appeal unless the decision did not reasonably carry out the intent of the MPS - The Board considered all of the evidence and all of Can-Euro's concerns - Its decision was clearly explained and amply supported by the evidence - Can-Euro failed to show that the development agreement was inconsistent with the intent of the MPS - The Board had no power to amend an agreement to make an otherwise inconsistent agreement consistent with the MPS - The Board erred in imposing its own interpretation of the MPS to substitute its own opinion as to the appropriate types of commercial uses and hours of operation - See paragraphs 39 to 95.

Land Regulation - Topic 4126

Land use control - Statutory appeals - Powers of appeal board - [See Land Regulation - Topic 3035 ].

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 generally discussed the standard of review on an appeal to the Nova Scotia Utility and Review Board as to whether a development agreement reasonably carried out the intent of the Municipal Planning Strategy - The court held that "where the issue under review is a question of law, then the standard of review is that of correctness ... A question as to the Board's jurisdiction is a question of law which attracts the correctness standard ... That standard also applies to questions of procedural fairness ... Legal questions of central importance to the legal system and outside an administrative tribunal's special expertise attract the correctness standard of review. However, if they are questions other than of general law and related intimately to the tribunal's expertise, and if a legislative intent for deference is shown by a privative clause and an administrative regime in which the decision-maker has special expertise they may be subject to a reasonableness standard." - See paragraphs 20 to 21.

Cases Noticed:

Maritime Telegraph & Telephone Co. v. Chateau Lafleur Development Corp. et al. (2001), 191 N.S.R.(2d) 302; 596 A.P.R. 302; 2001 NSSC 14, affd. (2001), 199 N.S.R.(2d) 250; 623 A.P.R. 250; 2001 NSCA 167, leave to appeal denied (2002), 294 N.R. 398; 209 N.S.R.(2d) 400; 656 A.P.R. 400 (S.C.C.), refd to. [para. 9].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1 (S.C.C.), refd to. [para. 19].

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. 19].

Midtown Tavern & Grill Ltd. v. Nova Scotia Utility and Review Board et al. (2006), 248 N.S.R.(2d) 319; 789 A.P.R. 319; 2006 NSCA 115, refd to. [para. 20].

Antigonish (County) v. Antigonish (Town) (2006), 241 N.S.R.(2d) 332; 767 A.P.R. 332; 2006 NSCA 29, refd to. [para. 20].

Heritage Trust of Nova Scotia v. Halifax (Regional Municipality) (2007), 252 N.S.R.(2d) 114; 804 A.P.R. 114 (S.C.), refd to. [para. 20].

Griffin v. Corcoran (2001), 193 N.S.R.(2d) 279; 602 A.P.R. 279; 2001 NSCA 73, refd to. [para. 36].

Kynock v. Bennett et al. (1994), 131 N.S.R.(2d) 334; 371 A.P.R. 334 (C.A.), refd to. [para. 47].

Kings County (Municipality) v. Lutz et al. (2003), 212 N.S.R.(2d) 222; 665 A.P.R. 222; 2003 NSCA 26, refd to. [para. 47].

Elderkin, Re, 2004 NSUARB 94 (Bd.), dist. [para. 72].

Creelman v. Duke Street Area Residents et al., [2003] N.S.R.(2d) Uned. 92; 2003 NSCA 96, refd to. [para. 98].

Lewis v. North West Community Council of Halifax (Regional Municipality) (2001), 194 N.S.R.(2d) 283; 606 A.P.R. 283; 2001 NSCA 98, refd to. [para. 98].

Chester District (Municipality) v. Certain Ratepayers of the Chester District (Municipality), [2000] N.S.R.(2d) Uned. 7; 2000 NSCA 19, refd to. [para. 98].

Statutes Noticed:

Municipal Government Act, S.N.S. 1998, c. 18, sect. 251(1) [para. 82]; sect. 251(2) [para. 26].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (4th Ed. 2006), pp. 44, 45 [para. 34].

Counsel:

William L. Mahody, for the appellant/ respondent on cross-appeal;

Robert G. Grant, for the respondent/appellant on cross-appeal, Dexel Developments Ltd.;

Karen Brown, for the respondent/appellant on cross-appeal, Halifax Regional Municipality.

This appeal and cross-appeal were heard on October 8, 2008, at Halifax, N.S., before Roscoe, Cromwell and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On December 23, 2008, Oland, J.A., delivered the following judgment for the Court of Appeal.