Doucette v. Halifax (Regional Municipality), 2015 NSSC 151

• Jurisdiction: Nova Scotia
• Court: Supreme Court of Nova Scotia (Canada)
• Judge: Moir, J.
• Citation: 2015 NSSC 151,(2015), 360 N.S.R.(2d) 181 (SC)
• Date: 09 April 2015

Doucette v. Halifax (2015), 360 N.S.R.(2d) 181 (SC);

    1135 A.P.R. 181

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.040

Richard Doucette (applicant) v. Halifax Regional Municipality (respondent)

(Hfx. No. 434595; 2015 NSSC 151)

Indexed As: Doucette v. Halifax (Regional Municipality)

Nova Scotia Supreme Court

Moir, J.

May 21, 2015.

Summary:

Doucette had a two year building permit for a home renovation. While the permit was in force, Halifax issued an unsightly premises order for the property. Doucette's appeal was dismissed. He applied for judicial review.

The Nova Scotia Supreme Court allowed the application, annulling the unsightly premises order.

Administrative Law - Topic 225

The hearing and decision - Right to be heard - What constitutes not being heard - In September 2013, Doucette obtained a two year building permit for a very substantial renovation of his home - In May 2014, the municipality received a complaint about the property - A compliance officer issued an order to remedy unsightly premises - Doucette appealed - At that time, Doucette did not know that a municipal councillor (McCluskey) was the person who made the initial complaint - McCluskey was part of the appeal committee, which dismissed Doucette's appeal - Doucette applied for judicial review - When McCluskey's participation became known, the municipality conceded the judicial review and vacated the unsightly premises order - In October 2014, the municipality issued a new unsightly premises order - Doucette appealed - The appeal committee included six of the eight members that had dismissed Doucette's earlier appeal - McCluskey did not attend - Doucette was not allowed to speak about bias and "the way he had been treated" earlier, but was told to keep his comments focussed on the current appeal - The appeal was dismissed - The Nova Scotia Supreme Court, having allowed Doucette's application for judicial review on other grounds, stated that the unsightly premises order would have been stayed, in any event, on grounds of procedural unfairness - Doucette had a right to make submissions about McCluskey's improper participation and the danger of real or apparent bias at the second appeal hearing - See paragraphs 73 to 91.

Administrative Law - Topic 2094

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Municipal councillors - [See Administrative Law - Topic 225 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 225 ].

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - [See Administrative Law - Topic 225 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - Under s. 354 of the Halifax Regional Municipality Charter, every property had to be maintained so as not to be "dangerous or unsightly" - Section 8 of the Building Code Act required a valid permit to be in force for all construction - Doucette had a two year building permit for a home renovation - While the permit was in force, Halifax issued an unsightly premises order for the property - Doucette's appeal was dismissed - At issue on his application for judicial review was the standard of review - The Nova Scotia Supreme Court held that the standard of review was correctness - Neither s. 354 nor s. 8 was subject to the other - The obligation to maintain sightly premises was not suspended by construction or renovation under a building permit - Therefore, the question of how those regimes limited one another was a question of statutory interpretation - Although the appeal committee was interpreting its home statute, it had to be correct - Further, the courts shared jurisdiction with the municipality on unsightly premises - The question of the overlap between the legislation was for the courts at first instance as well as the municipality - Finally, there was a dichotomy between a building official's power to issue a permit for something that might be unsightly or dangerous and the compliance officer's power to halt the danger or unsightliness - Correctness was the presumed standard for questions regarding such jurisdictional lines - See paragraphs 25 to 46.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See Administrative Law - Topic 3202 ].

Land Regulation - Topic 5002

Unsightly premises (neglected buildings) - Interpretation of legislation - Under s. 354 of the Halifax Regional Municipality Charter, every property had to be maintained so as not to be "dangerous or unsightly" - Section 8 of the Building Code Act required a valid permit to be in force for all construction - Doucette had a two year building permit for a home renovation - While the permit was in force, Halifax issued an unsightly premises order for the property - Doucette's appeal was dismissed - The Nova Scotia Supreme Court allowed Doucette's application for judicial review, annulling the unsightly premises order - The compliance officer and the appeals committee misinterpreted s. 354 by ignoring the relationship between it and s. 8 - "Unsightly" meant "unsightly" in relation to lawful use - The appeals committee's reasoning that the building permit had no effect on the power to issue an unsightly premises order was flawed - The building permit was not a mere "administrative authorization" that was trumped by "requirements imposed under a provincial statute" - Further, unsightly premises legislation had long been interpreted in a way that precluded comparing a home under construction with neighbouring homes not under construction - See paragraphs 47 to 72.

Land Regulation - Topic 5004

Unsightly premises (neglected buildings) - Unsightly - What constitutes - [See Land Regulation - Topic 5002 ].

Land Regulation - Topic 5017

Unsightly premises (neglected buildings) - Removal or clean-up - [See Land Regulation - Topic 5002 ].

Land Regulation - Topic 5017.1

Unsightly premises (neglected buildings) - Removal or clean-up - Appeals - [See Administrative Law - Topic 3202 ].

Municipal Law - Topic 1682

Powers of municipalities - Judicial review of exercise of powers - Scope of powers of judicial review - [See Administrative Law - Topic 3202 ].

Words and Phrases

Unsightly - The Nova Scotia Supreme Court discussed the definition of "unsightly" as found in s. 3(q) of the Halifax Regional Municipality Charter, S.N.S. 2008, c. 39 - See paragraphs 60 to 72.

Cases Noticed:

Sydney Precision Machining Ltd. et al. v. Cape Breton (Regional Municipality) (2003), 219 N.S.R.(2d) 129; 692 A.P.R. 129; 2003 NSSC 222, refd to. [para. 27].

Wells v. Amherst (Town) (2014), 350 N.S.R.(2d) 268; 1105 A.P.R. 268; 2014 NSSC 378, refd to. [para. 27].

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. 27].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 29].

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 29].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

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. 29].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 2012 SCC 35, refd to. [para. 29].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 29].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 29].

National Gallery of Canada v. Canadian Artists' Representation et al. (2014), 458 N.R. 233; 2014 SCC 42, refd to. [para. 29].

Coates v. Sharp et al. (2013), 329 N.S.R.(2d) 264; 1042 A.P.R. 264; 2013 NSCA 52, refd to. [para. 31].

Delport Realty Ltd. et al. v. Halifax (Regional Municipalities) (2014), 343 N.S.R.(2d) 341; 1084 A.P.R. 341; 2014 NSCA 35, refd to. [para. 31].

Rocky Top Farm v. Nova Scotia (Minister of Agriculture) (2015), 354 N.S.R.(2d) 305; 1120 A.P.R. 305; 2015 NSSC 21, refd to. [para. 31].

Millett v. Nova Scotia (Minister of Agriculture) - see Rocky Top Farm v. Nova Scotia (Minister of Agriculture).

Aloni v. Chester (District Municipality), [1995] N.S.J. No. 297 (Prov. Ct.), affd. (1995), 145 N.S.R.(2d) 56; 418 A.P.R. 56 (S.C.), affd. (1996), 149 N.S.R.(2d) 86; 432 A.P.R. 86 (C.A.), refd to. [para. 51].

R. v. Aloni - see Aloni v. Chester (District Municipality).

Kings County (Municipality) v. Witter (1991), 101 N.S.R.(2d) 151; 275 A.P.R. 151 (T.D.), refd to. [para. 53].

Colchester County (Municipality) v. Spencer (2004), 226 N.S.R.(2d) 92; 714 A.P.R. 92; 2004 NSSC 156, affd. (2005), 231 N.S.R.(2d) 172; 733 A.P.R. 172; 2005 NSCA, refd to. [para. 56].

R. v. Koskolos (A.N.) Realty Ltd. (1995), 146 N.S.R.(2d) 387; 422 A.P.R. 387 (S.C.), refd to. [para. 61].

Delport Realty Ltd. et al. v. Halifax (Regional Municipality) (2010), 293 N.S.R.(2d) 240; 928 A.P.R. 240; 2010 NSSC 290, refd to. [para. 65].

R. v. Hicks (G.T.) (2013), 332 N.S.R.(2d) 284; 1052 A.P.R. 284; 2013 NSCA 89, refd to. [para. 65].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re (1998), 221 N.R. 241; 106 O.A.C. 1 (S.C.C.), refd to. [para. 65].

Statutes Noticed:

Building Code Act, R.S.N.S. 1989, c. 46, sect. 8 [para. 32].

Halifax Regional Municipality Charter, S.N.S. 2008, c. 39, sect. 3(q) [para. 60]; sect. 354 [para. 32].

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes (2nd Ed. 1974), p. 185 [para. 38].

Counsel:

Richard W. Norman, for the applicant;

Randolph Kinghorne and Tara Gough, for the respondent.

This application was heard at Halifax, N.S., on April 9, 2015, by Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on May 21, 2015.