Eco Awareness Society v. Antigonish (County) et al., 2010 NSSC 461

• Judge: Robertson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 08, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 461;(2010), 299 N.S.R.(2d) 175 (SC)

Eco Awareness Soc. v. Antigonish (2010), 299 N.S.R.(2d) 175 (SC);

    947 A.P.R. 175

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. DE.043

Eco Awareness Society (applicant) v. Municipality of the County of Antigonish, Eastern District Planning Commission, Ms. Wanda Ryan, Development Officer and Shear Wind Inc. (respondents)

(Hfx. No. 336179; 2010 NSSC 461)

Indexed As: Eco Awareness Society v. Antigonish (County) et al.

Nova Scotia Supreme Court

Robertson, J.

December 21, 2010.

Summary:

A development officer granted a development permit allowing the installation of wind turbines for a power project. The applicant filed an application for judicial review of the decision 26 business days after the appeal date expired. Civil Procedure Rule 7.05(1)(a) required filing of a judicial review application challenging the development permits issued within 25 days of the decision to issue the permits being communicated to the applicant. The applicant asked the court to use its general discretionary power under rule 2.03 to extend the time limit set out in rule 7.05.

The Nova Scotia Supreme Court dismissed the motion.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See second Land Regulation - Topic 3239 ].

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - [See both Land Regulation - Topic 3239 ].

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - A development officer granted a development permit allowing the installation of wind turbines for a power project - The applicant filed an application for judicial review of the decision 26 business days after the appeal date expired - Civil Procedure Rule 7.05(1)(a) required filing of a judicial review application within 25 days of the decision to issue the permits being communicated to the applicant - The applicant asked the court to use its general discretionary power under rule 2.03 to extend the time limit in rule 7.05 - The applicant also argued that the term communication of the decision should be interpreted in a far wider context to include giving the applicant the opportunity to review and consider more documentation, specifically the review of a second wind study, before deciding on further legal action - The Nova Scotia Supreme Court dismissed the motion - Civil Procedure Rule 7 specifically contemplated that the time began running before an applicant had received a copy of a written decision, if there was one, or documents evidencing an action taken, such as background information the development officer might have relied on in making his decision - See paragraphs 7 to 20.

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - A development officer granted a development permit allowing the installation of wind turbines for a power project - The applicant filed an application for judicial review of the decision 26 business days after the appeal date expired - Civil Procedure Rule 7.05(1)(a) required filing of a judicial review application within 25 days of the decision to issue the permits being communicated to the applicant - The applicant asked the court to use its general discretionary power under rule 2.03 to extend the time limit in rule 7.05 - The Nova Scotia Supreme Court dismissed the motion - The 50 days' delay, without any indication in writing that the applicant even intended to consider an appeal, was a very significant delay - The applicant never argued inadvertence or mistake or any occurrence that prevented filing an appeal on time - Indeed, the applicant appeared to have decided not to file the appeal within the requisite time, but chose to seek more information and more opinion notwithstanding the deadline - There was no reasonable excuse - The respondents would suffer the greater prejudice - They had made financial commitments and proceeded with both phases of the project in both Pictou and Antigonish Counties on the strength that the decision was made and the appeal periods had run their course - A development officer's decision to issue a permit was accorded a high degree of deference and the standard of review was reasonableness - There was no argument that the development officer exceeded his authority or considered irrelevant matters - See paragraphs 21 to 35.

Practice - Topic 10

General principles and definitions - Extension of time under rules - [See both Land Regulation - Topic 3239 ].

Practice - Topic 3088

Applications and motions - Applications - Limitation period - Extension of - [See both Land Regulation - Topic 3239 ].

Words and Phrases

Communicated - The Nova Scotia Supreme Court discussed the meaning of this word as found in rule 7.05(1)(a) of the Civil Procedure Rules of Nova Scotia - See paragraphs 4 to 20.

Cases Noticed:

Carvery v. Downey et al. (2009), 282 N.S.R.(2d) 346; 895 A.P.R. 346; 2009 NSCA 102, refd to. [para. 11].

Aurelius Capital Partners et al. v. General Motors Corp. et al., [2009] N.S.R.(2d) Uned. 85; 2009 NSSC 100, refd to. [para. 11].

Fuchs v. Minister of National Revenue (1997), 129 F.T.R. 168 (T.D.), refd to. [para. 14].

Forster v. Canada (Attorney General) (1999), 247 N.R. 300; 1999 CanLII 8762 (F.C.A.), refd to. [para. 16].

Goodwin et al. v. Canada (Attorney General) et al. (2005), 279 F.T.R. 100; 2005 FC 1185, refd to. [para. 17].

Peace Hills Trust Co. v. Moccasin et al. (2005), 281 F.T.R. 201 (Fed. Ct.), refd to. [para. 17].

Peace Hills Trust Co. v. Saulteaux First Nation - see Peace Hills Trust Co. v. Moccasin et al.

Peterson v. Kentville (Town) (2008), 275 N.S.R.(2d) 17; 877 A.P.R. 17; 2008 NSSC 254, refd to. [para. 19].

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 21].

Council of Canadians et al. v. Director of Investigation and Research, Competition Act et al. (1996), 124 F.T.R. 269 (T.D.), refd to. [para. 25].

Weilgart et al. v. Halifax (Regional Municipality) et al. (2008), 265 N.S.R.(2d) 26; 848 A.P.R. 26; 2008 NSSC 130, refd to. [para. 31].

Grove v. Chester District (Municipality) et al. (2003), 211 N.S.R.(2d) 249; 662 A.P.R. 249; 2003 NSCA 4, refd to. [para. 31].

Oakland/Indian Point Residents Association v. Seaview Properties Ltd. et al. (2010), 294 N.S.R.(2d) 149; 933 A.P.R. 149; 2010 NSCA 66, refd to. [para. 31].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 7.05(1)(a) [para. 2].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Peter McInroy, for Eco Awareness Society;

Donald Macdonald, for the Municipality of the County of Antigonish, Eastern District Planning Commission, Ms. Wanda Ryan, Development Officer;

Peter M. Rogers, Q.C., for Shear Wind Inc.

This motion was heard at Halifax, N.S., on November 8, 2010, by Robertson, J., of the Nova Scotia Supreme Court, who delivered the following decision on December 21, 2010.