Heritage Trust of Nova Scotia v. Halifax (Regional Municipality), (2007) 252 N.S.R.(2d) 114 (SC)

• Judge: Hood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 26, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 252 N.S.R.(2d) 114 (SC);2007 NSSC 72;2007 NSSC 28

Heritage Trust v. Halifax (2007), 252 N.S.R.(2d) 114 (SC);

    804 A.P.R. 114

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. MR.001

Heritage Trust of Nova Scotia and Howard Epstein (applicant) v. Halifax Regional Municipality (respondent) and United Gulf Development Ltd. (intervenor)

(SH 265550; 2007 NSSC 28; 2007 NSSC 72)

Indexed As: Heritage Trust of Nova Scotia v. Halifax (Regional Municipality)

Nova Scotia Supreme Court

Hood, J.

February 26, 2007.

Summary:

Halifax Regional Council (HRC), after a public hearing, approved a development agreement allowing construction of a building comprised of two towers in downtown Halifax. Heritage Trust of Nova Scotia, which opposed the development, applied to quash HRC's decision for want of procedural fairness where HRC received new and relevant information from the developer after the close of the public hearing and failed to provide all relevant information to the public prior to the hearing. Heritage Trust also submitted that HRC fettered its discretion by contractually binding itself to approve the development and erred in considering irrelevant factors. The developer challenged Heritage Trust's standing to bring the application.

The Nova Scotia Supreme Court dismissed the application. Heritage Trust had standing to seek to quash the development agreement approval. There was no lack of procedural fairness in the conduct of the public hearing, HRC did not fetter its discretion and irrelevant factors were not considered in making the decision.

Administrative Law - Topic 389

The hearing and decision - Public hearings - Public right to documents - Halifax Regional Council (HRC), after a public hearing, approved a development agreement allowing construction of a building comprised of two towers in downtown Halifax - Heritage Trust of Nova Scotia, which opposed the development, applied to quash HRC's decision for want of procedural fairness where HRC failed to provide all relevant information to the public prior to the hearing (eg., tender documents, agreement of purchase of sale, wind and shadow studies) - The Nova Scotia Supreme Court held that procedural fairness did not require pre-hearing disclosure of the studies relied on by HRC in making its decision - A public hearing before HRC was not a trial with full disclosure - Procedural fairness required that Heritage Trust be given an opportunity to put forward its views and evidence in opposition to the development agreement - Procedural fairness required sufficient disclosure to permit Heritage Trust to participate meaningfully at the public hearing - The court noted that the tender documents and purchase and sale agreement were not relevant to development agreement approval - Further, HRC did not have the wind and shadow studies until after the public hearing, whereas Heritage Trust had pre-hearing access to the information and specifically spoke to the issues concerned at the hearing - The public hearing was a consultation process, not an adversarial one - Even if the studies should have been produced earlier, the court would exercise its discretion to deny ordering a further public hearing, as the non-disclosure did not prejudice any party where the issues of wind and shade were fully dealt with - See paragraphs 108 to 167.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Halifax Regional Council, after a public hearing, approved a development agreement allowing construction of a building comprised of two towers in downtown Halifax - Heritage Trust of Nova Scotia, which opposed the development, applied to quash HRC's decision for want of procedural fairness - The Nova Scotia Supreme Court stated that the level of procedural fairness required depended upon: (1) the nature of the decision and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of those challenging the decision; and (5) council's choice of procedure - The court held that "the duty of procedural fairness in a situation like this is moderate to fairly high. The hearing was a public one but not one involving a few residents in a local neighbourhood but one with broader policy considerations. [Halifax Regional Municipality] was entitled to and did establish procedures for conducting public hearings with which the applicants were familiar and there were no representations that special provisions would be made for them. ... the public hearing in this specific matter was less judicial and more legislative." - See paragraphs 72 to 107.

Administrative Law - Topic 2606

Natural justice - Evidence and proof - Receipt of evidence or information after close of hearing - Halifax Regional Council (HRC), after a public hearing, approved a development agreement allowing construction of a building comprised of two towers in downtown Halifax - Heritage Trust of Nova Scotia, which opposed the development, applied to quash HRC's decision for want of procedural fairness where HRC received new and relevant information from the developer after the close of the public hearing - The Nova Scotia Supreme Court held that, based on a moderate to fairly high procedural fairness content, the receipt by HRC of information from the developer after the public hearing did not vitiate the public hearing process - Since the public could continue to make written submissions to HRC up until the final decision, so too could the developer, as long as procedural unfairness did not result - If the developer changed its proposal after the public hearing closed, that would subvert the process - The information provided by the developer after the public hearing closed could not raise new issues which the public had no opportunity to address - The information provided by the developer was either clarification or additional information on matters already raised - There was no "new" information upon which the public had no opportunity to comment, nor had the substance of the developer's proposal changed, both of which would have required the re-opening of the public hearing - See paragraphs 168 to 224.

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See Administrative Law - Topic 389 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Nova Scotia Supreme Court stated that "the standard of review of issues of procedural fairness is one of correctness. ... Courts decide whether the procedure used by a tribunal, board, council or other body acting quasi-judicially are fair. Procedural issues are not subject to the pragmatic and functional analysis, only substantive issues are." - See paragraph 56.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - [See Municipal Law - Topic 414 ].

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - [See Municipal Law - Topic 1586 ].

Municipal Law - Topic 386

Councils - Meetings - Public hearings - Reasonable opportunity to be heard - [See Administrative Law - Topic 389 ].

Municipal Law - Topic 414

Councils - Resolutions - Quashing of - Status or standing - Halifax Regional Council (HRC), after a public hearing, voted to approve a development agreement allowing construction of a building comprised of two towers in downtown Halifax - Heritage Trust of Nova Scotia, which opposed the development, applied to quash HRC's decision for, inter alia, want of procedural fairness in relation to the conduct of the public hearing - The Nova Scotia Supreme Court held that Heritage Trust had standing to apply to quash the decision - The court held that: (1) there was a justiciable issue; (2) a serious issue was raised concerning procedural fairness at the public hearing; (3) members of Heritage Trust were directly affected by the decision and had a genuine interest in the matter; and (4) there was no other reasonable and effective manner of bringing the issue before the court - The court noted that although there was an appeal to the Nova Scotia Utility and Review Board respecting approval of the agreement, the Board's jurisdiction was limited to whether the decision carried out the intent of the Municipal Planning Strategy - The Board had no jurisdiction respecting the procedural fairness of the public hearing - See paragraphs 23 to 44.

Municipal Law - Topic 428

Councils - Decisions of - Duty of fairness - [See Administrative Law - Topic 2266 ].

Municipal Law - Topic 1586

Powers of municipalities - Exercise of powers - Prohibition against fettering of - Halifax Regional Council (HRC), after a public hearing, approved a development agreement allowing construction of a building comprised of two towers in downtown Halifax - Heritage Trust of Nova Scotia, which opposed the development, applied to quash HRC's decision, submitting that HRC fettered its discretion by the terms of the tender call and agreement of purchase and sale - Heritage Trust submitted that HRC had prejudged the development agreement application by contractually binding itself to approving it - The Nova Scotia Supreme Court rejected the submission - Any agreement with the developer made it clear that HRC was not obligated to approve the development agreement and that the risk of obtaining approval was to be borne by the developer - See paragraphs 225 to 238.

Municipal Law - Topic 6213

Actions against municipality - Capacity to sue - Interest groups - [See Municipal Law - Topic 414 ].

Practice - Topic 220

Persons who can sue and be sued - Individuals and corporations - Status or standing - Respecting validity of administrative action by government officials or public body - [See Municipal Law - Topic 414 ].

Public Utilities - Topic 4404

Public utility commissions or corporations (incl. private providers) - General - Jurisdiction - [See Municipal Law - Topic 414 ].

Cases Noticed:

Mountain Ash Court Property Owners Association et al. v. Dartmouth (City) et al. (1993), 127 N.S.R.(2d) 139; 355 A.P.R. 139; 109 D.L.R.(4th) 738; 1993 CarswellNS 84 (S.C.), affd. (1994), 132 N.S.R.(2d) 74; 376 A.P.R. 74; 115 D.L.R.(4th) 361; 1994 CarswellNS 527 (C.A.), refd to. [paras. 26, 27].

Coalition of Citizens for a Charter Challenge v. Metropolitan Authority et al. (1993), 122 N.S.R.(2d) 1; 338 A.P.R. 1 (S.C.), refd to. [para. 26].

Heritage Trust of Nova Scotia et al. v. Provincial Planning Appeal Board (N.S.) et al. (1981), 50 N.S.R.(2d) 352; 98 A.P.R. 352; 1981 CarswellNS 282 (T.D.), refd to. [para. 34].

Saskatchewan Action Foundation for the Environment Inc. v. Saskatchewan (Minister of the Environment and Public Safety) (1992), 97 Sask.R. 135; 12 W.A.C. 135 (C.A.), refd to. [para. 36].

Friends of the Public Gardens v. Halifax and United Equities Ltd. (1985), 68 N.S.R.(2d) 433; 159 A.P.R. 433 (T.D.), dist. [para. 37].

Halifax (County) v. Maskine and Ghosn (1992), 118 N.S.R.(2d) 356; 327 A.P.R. 356 (C.A.), refd to. [para. 39].

Federation of Nova Scotian Heritage, Re, 2005 NSUARD 105, refd to. [para. 40].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, dist. [para. 42].

South Centre Merchants Association Ltd. v. Halifax (City) (1994), 135 N.S.R.(2d) 373; 386 A.P.R. 373 (S.C.), refd to. [para. 42].

Valdun Developments Ltd. v. Calgary (City) (1997), 200 A.R. 19; 146 W.A.C. 19 (C.A.), refd to. [para. 46].

Jones et al. v. Delta (Municipality) et al. (1992), 14 B.C.A.C. 241; 26 W.A.C. 241; 92 D.L.R.(4th) 714 (C.A.), refd to. [para. 52].

Pitt Polder Preservations Society v. Pitt Meadows (District) (2000), 139 B.C.A.C. 247; 227 W.A.C. 247; 2000 BCCA 415, not folld. [para. 53].

Keefe et al. v. Edmonton (City) et al. (2005), 363 A.R. 384; 343 W.A.C. 384; 2005 ABCA 144, refd to. [para. 56].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 56].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 57].

Wiswell v. Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512, refd to. [para. 57].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 59].

Atkins et al. v. Calgary (City) (1994), 162 A.R. 97; 83 W.A.C. 97 (C.A.), refd to. [para. 63].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 66].

Friends of the Public Gardens v. Halifax et al. (1984), 65 N.S.R.(2d) 297; 147 A.P.R. 297 (T.D.), refd to. [para. 69].

Keefe et al. v. Edmonton (City) et al. (2002), 329 A.R. 149; 2000 ABQB 1098, refd to. [para. 74].

Williams Lake Conservation Co. v. Chebucto Community Council of Halifax (Regional Municipality) et al., [2003] N.S.R.(2d) Uned. 126 (S.C.), refd to. [para. 96].

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. 100].

Heritage Trust of Nova Scotia et al. v. Nova Scotia Utility and Review Board et al. (1994), 128 N.S.R.(2d) 5; 359 A.P.R. 5 (C.A.), refd to. [para. 100].

Kane v. Board of Governors of University of British Columbia (1980), 31 N.R. 214, refd to. [para. 110].

Board of Education v. Rice, [1911] A.C. 179 (H.L.), refd to. [para. 110].

Karamanian v. Richmond (Township) (1982), 138 D.L.R.(3d) 760 (B.C.S.C.), refd to. [para. 115].

Eddington v. Surrey (District), [1985] B.C.J. No. 1925 (C.A.), refd to. [para. 117].

Harrison v. Richmond (City) (1993), 14 M.P.L.R.(2d) 261 (B.C.S.C.), refd to. [para. 117].

Canadian Pacific Railway Co. v. Vancouver (City) (2004), 196 B.C.A.C. 49; 322 W.A.C. 49; 2004 BCCA 1992, affd. (2006), 345 N.R. 140; 221 B.C.A.C. 1; 364 W.A.C. 1; 2005 SCC 5, refd to. [para. 119].

Wilde v. Metchosin (District) et al., [2004] B.C.T.C. 782; 2004 BCSC 782, refd to. [para. 126].

Save the Eaton's Building Coalition v. Winnipeg (City) (2002), 170 Man.R.(2d) 33; 285 W.A.C. 33; 2002 MBCA 140, refd to. [para. 166].

Hubbard et al. v. West Vancouver (District) (2005), 222 B.C.A.C. 61; 368 W.A.C. 61; 2005 BCCA 633, refd to. [para. 177].

McMartin et al. v. Vancouver (City) (1968), 70 D.L.R.(2d) 38 (B.C.C.A.), refd to. [para. 209].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4, refd to. [para. 225].

Pacific National Investments Ltd. v. Victoria (City) et al., [2000] 2 S.C.R. 919; 263 N.R. 1; 144 B.C.A.C. 203; 236 W.A.C. 203, refd to. [para. 230].

R. v. London County Council, [1915] 2 K.B. 466, refd to. [para. 246].

Canada et al. v. Winnipeg (City) (1984), 28 Man.R.(2d) 211 (Q.B.), refd to. [para. 249].

Statutes Noticed:

Municipal Government Act, S.N.S. 1998, c. 18, sect. 189 [para. 24]; sect. 190(c) [para. 47]; sect. 204(3) [para. 78]; sect. 206(4) [para. 79]; sect. 251(1), sect. 251(2) [para. 54].

Counsel:

Ronald A. Pink, Q.C., for the applicant;

Karen Brown, for Halifax Regional Municipality;

Robert G. Grant, Q.C., and Rebecca Druhan, for the respondents.

This application was heard on December 6-7, 2006, at Halifax, N.S., before Hood, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 26, 2007.