Carbonear (Town) v. Aisthorpe, (2015) 372 Nfld. & P.E.I.R. 305 (NLTD(G))

• Judge: Orsborn, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 05, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 372 Nfld. & P.E.I.R. 305 (NLTD(G))

Carbonear v. Aisthorpe (2015), 372 Nfld. & P.E.I.R. 305 (NLTD(G));

    1158 A.P.R. 305

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. OC.021

Town of Carbonear (appellant) v. Marie Aisthorpe (respondent)

(201501G2140; 2015 NLTD(G) 140)

Indexed As: Carbonear (Town) v. Aisthorpe

Newfoundland and Labrador Supreme Court

Trial Division (General)

Orsborn, J.

October 9, 2015.

Summary:

In an effort to create privacy, Aisthorpe replaced an old fence with a six-foot fence in the backyard of her home in the Town of Carbonear. Eight and one-half years later, the Town Council issued a removal order to "pull down" the fence, citing that it had been built without a permit. Aisthorpe appealed. The Eastern Newfoundland Regional Appeal Board stated that it was unaware whether the six year limitation period in s. 6 of the Limitations Act applied and vacated the removal order so that Council could undertake the necessary inquiries to determine if they had authority to issue the order. The Town appealed, asserting that the Board erred in vacating the order without having first made a decision as to whether s. 6(f) applied or, alternatively, the Board, by vacating the order, incorrectly decided that the Act applied.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at 350 Nfld. & P.E.I.R. 158; 1088 A.P.R. 158, allowed the appeal, holding that the Board erred in law and jurisdiction by (i) vacating the removal order prior to making a decision on the merits of the appeal; and (ii) in delegating its decision-making authority to the Town. The Board also erred in its consideration of the ambit of the Limitation Act. The Act did not bar the Town from its authority to enact removal orders. The court referred the matter for rehearing and reconsideration as to whether: (i) Aisthorpe's fence contravened the Town's Fence Regulations; (ii) the issuance of the removal order was a valid exercise of the Town's discretionary authority; and (iii) by virtue of the circumstances, the doctrine of estoppel precluded enforcement of the removal order. The Board conducted another hearing on March 24, 2015, and on June 21, 2011, held that, inter alia, Aisthorpe's fence was built without a permit; it contravened the height requirements of the Town's Fence Regulations; it was not reasonable for the Board to issue a removal order; and the doctrine of estoppel precluded the Town from enforcing the removal order. The court vacated the removal order. The Town appealed.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the appeal, vacated the Board's order and referred the matter back to the Board with the following directions: "(i) Any review by the Board of the June 21, 2011 discretionary decision ("Order") of the Town is limited to grounds relating to, or similar to, an excess or abuse of statutory authority, bad faith, or misconduct. The Board will not review the Order for reasonableness. (ii) As a matter of law, the doctrine of estoppel is not available to be used as a defence to the enforcement of the Order. Further, based on the record before and available to the Board up to and including its hearing in March 24, 2015, the facts do not support a finding that an estoppel - even if otherwise legally available - has been established."

Estoppel - Topic 4

General principles - Burden of proof - Aisthorpe replaced an old fence with a six-foot fence in the backyard of her home in the Town of Carbonear without obtaining a building permit - The fence contravened the height requirements of the Town's Fence Regulations - Eight and one-half years later, the Town Council issued a removal order to "pull down" the fence, citing that it had been built without a permit - Aisthorpe appealed - The Eastern Newfoundland Regional Appeal Board held that the doctrine of estoppel precluded the Town from enforcing the order - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that estoppel was not available to be used as a defence to the order's enforcement - Further, even if applicable the facts did not support a finding of estoppel - There was no evidence of a common assumption held by the Town and Aisthorpe or of a representation by the Town that was relied upon by Aisthorpe which might have induced her to build six-foot fence without a permit - The Town had the discretion to make the removal order under s. 102(1) of the Urban and Rural Planning Act - Once the order was validly issued under s. 102(1) , s. 102 provided a full code covering compliance, timing and enforcement - Offence provisions were set out in s. 106 - The operation of those provisions left no room for consideration of unfairness as a defence against a validly-issued s. 102(1) order - Generally, municipal duties and powers, including the enforcement of regulations, were of such a public nature that they could not be lost or diminished by the operation of court-created equitable doctrines such as estoppel - The Board held that the Town had not established that it had acted in the public interest - Assuming that an absence of public interest was relevant, it was not for the Town to demonstrate that its action was in the public interest - In the context of raising estoppel as a defence to enforcement of the regulation and removal order, Aisthorpe had to demonstrate an absence of public interest - In making its own assessment of the public interest, the Board erred in substituting its view for that of the Town - See paragraphs to 37 to 73.

Estoppel - Topic 1005

Estoppel in pais (by conduct) - General - Against municipalities - [See Estoppel Topic 4 ].

Estoppel - Topic 1387

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - To limit the exercise of a statutory power - [See Estoppel - Topic 4 ].

Estoppel - Topic 1395

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - Decisions of public officials - [See Estoppel - Topic 4 ].

Land Regulation - Topic 3272

Land use control - Building or development permits - Appeals to appeal board - Jurisdiction - Aisthorpe replaced an old fence with a six-foot fence in the backyard of her home in the Town of Carbonear without obtaining a building permit - The fence contravened the height requirements of the Town's Fence Regulations - Eight and one-half years later, the Town Council issued a removal order to "pull down" the fence, citing that it had been built without a permit - Aisthorpe appealed - The Eastern Newfoundland Regional Appeal Board vacated the removal order - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that s. 42(11) of the Urban and Rural Planning Act suggested that, at best, an appeal board could only refer a discretionary decision back to a council for reconsideration - The Board could not exercise its own discretion and make a new order or, as here, simply vacate Council's order - There was little, if any, room for an appeal board to consider the substantive aspects of a discretionary decision of a municipal council - Rather, what could be reviewed was the decision-making process, including bad faith, misconduct, improper motive and the like, together with the basic statutory authority for the Council's decision - Here, the Board considered only the substantive decision and then applied the Board's concept of reasonableness to that decision - There was no issue of bad faith, misconduct or the like, and no issue of any lack of statutory authority - The Board improperly substituted its own discretion for that of the Town - This could be characterized both as an error of law or an error of jurisdiction - If characterized as an excess of jurisdiction, the standard of review was correctness - But even if it was reviewable on the reasonable standard, the Board's decision to vacate the order in the absence of bad faith, misconduct or the like, was unreasonable - See paragraphs 22 to 36.

Land Regulation - Topic 3279

Land use control - Building or development permits - Appeals to appeal board - Scope of appeal - [See Estoppel - Topic 4 and Land Regulation - Topic 3272 ].

Land Regulation - Topic 3948

Land use control - Remedies - Demolition or removal - [See Estoppel - Topic 4 ].

Land Regulation - Topic 4126

Land use control - Statutory appeals - Powers of appeal board - Appeal to appeal board - Scope of appeal - [See Estoppel - Topic 4 and Land Regulation - Topic 3272 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - Standard of review - [See Land Regulation - Topic 3272 ].

Municipal Law - Topic 1662

Powers of municipalities - Statutory appeals from exercise of powers - Jurisdiction of appeal board - [See Land Regulation - Topic 3272 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 16].

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. 16].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 16].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 16].

Petty-Harbour-Maddox Cove (Town) v. Eastern Newfoundland Regional Appeal Board et al. (2015), 370 Nfld. & P.E.I.R. 322; 1153 A.P.R. 322; 2015 NLTD(G) 111, refd to. [para. 16].

Mount Pearl (City) v. Local Board of Appeal (Mount Pearl) et al. (1995), 131 Nfld. & P.E.I.R. 320; 408 A.P.R. 320; 56 A.C.W.S.(3d) 594 (Nfld. C.A.), refd to. [para. 29].

Paradise (Town) v. Eastern Newfoundland Regional Appeal Board et al. (2010), 299 Nfld. & P.E.I.R. 264; 926 A.P.R. 264; 2010 NLTD(G) 116, refd to. [para. 30].

3163083 Canada Ltd. v. St. John's (City), 2004 NLCA 42, refd to. [para. 38].

Hydro Electric Commission of Kenora (Town) v. Vacationland Dairy Co-operative Ltd., [1994] 1 S.C.R. 80; 162 N.R. 241; 68 O.A.C. 241, dist. [para. 46].

Statutes Noticed:

Urban and Rural Planning Act, S.N.L. 2000, c. U-8 , sect. 42(1) [para. 12]; sect. 102 [para. 53].

Counsel:

J. Willian Finn, Q.C., for the appellant;

Marie Aisthorpe (by telephone), on her own behalf.

This appeal was heard at St. John's, N.L., on October 5, 2015, by Orsborn, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on October 9, 2015.