Clarke's Trucking and Excavating Ltd. v. Paradise (Town) et al., (2015) 366 Nfld. & P.E.I.R. 69 (NLTD(G))

• Judge: Goodridge, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 03, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 366 Nfld. & P.E.I.R. 69 (NLTD(G))

Clarke's Trucking v. Paradise (2015), 366 Nfld. & P.E.I.R. 69 (NLTD(G));

    1144 A.P.R. 69

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. AP.030

Clarke's Trucking and Excavating Ltd. (appellant) v. Town of Paradise (first respondent) and Eastern Newfoundland Regional Appeal Board (second respondent)

(201401G603; 2015 NLTD(G) 51)

Indexed As: Clarke's Trucking and Excavating Ltd. v. Paradise (Town) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Goodridge, J.

April 21, 2015.

Summary:

The Town of Paradise ordered Clarke's Trucking and Excavating Ltd. to discontinue certain "development" type activity on its land and to reinstate the land to its original condition. Clarke appealed to the Eastern Newfoundland Regional Appeal Board. The Board determined that the appeal was invalid because Clarke failed to include the grounds of appeal when filing its Appeal Summary Form in accordance with s. 42(5)(b) of the Urban and Rural Planning Act. The Town advised the Board that it was willing to waive compliance with s. 42(5)(b), but the Board did not believe that it had the authority to accept waiver of a statutory requirement. Clarke appealed the Board's preliminary ruling.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the appeal.

Land Regulation - Topic 4125

Land use control - Statutory appeals - Jurisdiction of appeal board - [See Waiver - Topic 10 ].

Municipal Law - Topic 1662

Powers of municipalities - Statutory appeals from exercise of powers - Jurisdiction of appeal board - [See Waiver - Topic 10 ].

Statutes - Topic 4506

Operation and effect - General principles - Persons entitled to plead or invoke a statute - Waiver of statutory requirement - [See Waiver - Topic 10 ].

Waiver - Topic 10

General principles - Waiver of statutory benefit - The Town of Paradise ordered Clarke's Trucking and Excavating Ltd. to discontinue certain "development" type activity on its land and to reinstate the land to its original condition - Clarke appealed to the Eastern Newfoundland Regional Appeal Board - The Board determined that the appeal was invalid because Clarke failed to include the grounds of appeal when filing its Appeal Summary Form in accordance with s. 42(5)(b) of the Urban and Rural Planning Act - The Town advised the Board that it was willing to waive compliance with s. 42(5)(b), but the Board did not believe that it had the authority to accept waiver of a statutory requirement - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed Clarke's appeal from the Board's preliminary ruling - Waiver of a statutory or regulatory requirement was permitted where it was enacted in the sole interest of one individual or category of individuals - In this case, s. 42(5)(b) existed for the sole benefit of the Town - As such, it could be waived by the Town, and non-compliance did not impact the Board's authority to hear the appeal.

Cases Noticed:

Newfoundland Association of Public Employees v. Newfoundland et al. (1994), 125 Nfld. & P.E.I.R. 271; 389 A.P.R. 271; 51 A.C.W.S.(3d) 476 (Nfld. C.A.), refd to. [para. 19].

N.H.D. Developments Ltd. and Regional Assessment Commissioner, Region No. 11 et al., Re (1980), 118 D.L.R.(3d) 365; 30 O.R.(2d) 689 (Div. Ct.), refd to. [para. 22].

Warren et al. v. Nova Scotia (Director of Assessment) (1999), 180 N.S.R.(2d) 327; 557 A.P.R. 327; 1999 NSCA 135, refd to. [para. 23].

R. v. Pardy (T.) (2014), 357 Nfld. & P.E.I.R. 49; 1109 A.P.R. 49; 2014 NLCA 37, refd to. [para. 25].

Statutes Noticed:

Urban and Rural Planning Act, S.N.L. 2000, c. U-8, sect. 42(5)(b) [para. 15].

Authors and Works Noticed:

Côté, Pierre-André, The Interpretation of Legislation in Canada (2nd Ed. 1989), p. 207 [para. 19].

Counsel:

William S. Kennedy, for the appellant;

Jonathan D. Dale, for the first respondent;

No participation by the second respondent.

This appeal was heard at St. John's, N.L., on February 9 and March 3, 2015, before Goodridge, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on April 21, 2015.