Higgins v. Nova Scotia (Attorney General) et al.

• Jurisdiction: Nova Scotia
• Judge: Farrar, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Citation: 2013 NSCA 118,(2013), 335 N.S.R.(2d) 292 (CA)
• Date: 04 October 2013

Higgins v. N.S. (A.G.) (2013), 335 N.S.R.(2d) 292 (CA);

    1060 A.P.R. 292

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. OC.046

Forrest C. Higgins, Jr. (applicant/appellant) v. The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia and D.D.V. Gold Limited, a body corporate and The Mining Association of Nova Scotia and The Nova Scotia Federation of Agriculture (respondents)

(CA 415194; 2013 NSCA 118)

Indexed As: Higgins v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Farrar, J.A.

October 9, 2013.

Summary:

D.D.V. Gold Ltd. tried unsuccessfully over a period of years to buy a parcel of approximately seven acres of land from Higgins, in connection with its plan to develop an open pit gold mine in the Province. D.D.V. applied to the Minister of Natural Resources for the Province for a vesting order, under s. 70 of the Mineral Resources Act, transferring to it fee simple ownership of the subject land. The Minister granted the vesting order. Higgins appealed. The issues related to procedural fairness and bias.

The Nova Scotia Supreme Court, in a decision reported at [2013] N.S.R.(2d) Uned. 84, dismissed the appeal. Higgins appealed, on the grounds that the judge erred (1) in determining that the procedure followed by the Minister in granting the vesting order was fair and (2) by improperly considering inappropriate factors in reaching his decision, i.e., the effect the proposed gold mine would have on the local economy and the mining industry in the Province.

The Nova Scotia Court of Appeal, in a decision reported at 334 N.S.R.(2d) 190; 1059 A.P.R. 190, dismissed the appeal. Higgins applied for leave to appeal to the Supreme Court of Canada, and moved for an order staying the vesting order pending the hearing of his application for leave.

The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed the motion.

Practice - Topic 5948

Judgments and orders - Enforcement of orders - Stay of - The applicant sought an order staying a vesting order issued by the Minister of Natural Resources pending the hearing of his application for leave to appeal to the Supreme Court of Canada - The vesting order would transfer ownership of a parcel of land owned by the applicant to D.D.V. Gold Ltd. - The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed the motion - "The arguable issue test is a low threshold to meet, however, it is nevertheless a threshold. In my view, this is one of those cases where the applicant has failed to meet the threshold. ... Simply stating that an issue is arguable and that it is of national importance does not make it so. There is nothing that has been filed to suggest that there are conflicting decisions regarding the content of the duty of fairness, that there is conflicting legislation in other jurisdictions or that the Baker test is not appropriate in these circumstances. The issue on the proposed appeal is the content of the duty of fairness to be owed to a person in the position of [the applicant] when his land is sought to be expropriated. The duty of fairness owed to him has been determined by the application of the Baker test by the Supreme Court and the Nova Scotia Court of Appeal. There is no arguable issue raised that the Baker test is not the proper test or should be modified." - The motion also failed on the irreparable harm aspect of the test - As a result, the third part of the test, balance of convenience, did not need to be addressed - Finally, this case was not within the exceptional circumstances exception - See paragraphs 6 to 11.

Practice - Topic 5948

Judgments and orders - Enforcement of orders - Stay of - The applicant sought an order staying a vesting order issued by the Minister of Natural Resources pending the hearing of his application for leave to appeal to the Supreme Court of Canada - The vesting order would transfer ownership of a parcel of land owned by the applicant to D.D.V. Gold Ltd. - The applicant's argument on irreparable harm was two-fold: (1) if the respondent's open pit mine was allowed to proceed, the land upon which he grew Christmas trees would be destroyed; and (2) the ancestral home on the property had sentimental value - The Nova Scotia Court of Appeal, per Farrar, J.A., held that the evidence presented fell "far short" of establishing irreparable harm - Bold statements that a party would suffer irreparable harm were not enough; "cogent evidence must be presented to support the assertion." - No evidence was presented to suggest that the land was sufficiently unique that it could not be replaced nor valued in monetary terms - Nor was any authority presented in support of the argument that the loss of the house with "sentimental value" gave rise to irreparable harm - See paragraphs 12 to 17.

Cases Noticed:

T.G. v. Nova Scotia (Minister of Community Services) et al. (2012), 318 N.S.R.(2d) 317; 1005 A.P.R. 317; 2012 NSCA 71, refd to. [para. 3].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 4].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 8].

Martin (M.R.) Construction Inc. v. Doaktown Transport Ltd. et al. (2006), 304 N.B.R.(2d) 236; 788 A.P.R. 236, refd to. [para. 14].

Counsel:

Robert H. Pineo, Alison Morgan and Jeremy Smith, for the applicant/appellant;

Darlene Willcott, for the respondent, Attorney General of Nova Scotia;

John Keith, Jack Townsend and Jeffrey Flinn, for the respondent, D.D.V. Gold Limited;

Geoffrey Saunders, for the respondent, Mining Association of Nova Scotia not participating;

Henry Vissers, for the respondent, Nova Scotia Federation of Agriculture not participating.

This motion for a stay was heard and orally dismissed on October 4, 2013, in Halifax, Nova Scotia, by Farrar, J.A., in Chambers, of the Nova Scotia Court of Appeal. Farrar, J.A., delivered the following written reasons for judgment on October 9, 2013.