Homburg Canada Inc. v. Nova Scotia Utility and Review Board et al., (2010) 289 N.S.R.(2d) 250 (CA)

• Judge: MacDonald, C.J.N.S., Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 04, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 289 N.S.R.(2d) 250 (CA);2010 NSCA 24

Homburg Can. Inc. v. N.S. Utility (2010), 289 N.S.R.(2d) 250 (CA);

    916 A.P.R. 250

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. MR.064

Homburg Canada Incorporated (appellant) v. The Nova Scotia Utility and Review Board, The Halifax Regional Water Commission, and The Attorney General of Nova Scotia (respondents)

(CA 317075; 2010 NSCA 24)

Indexed As: Homburg Canada Inc. v. Nova Scotia Utility and Review Board et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Hamilton and Fichaud, JJ.A.

March 24, 2010.

Summary:

The Halifax Regional Water Commission ordered Homburg Canada Inc. to install a backflow prevention device at its Dartmouth Shopping Centre so as to avoid the risk of contaminating the public drinking water supply. Homburg sought relief from the Nova Scotia Utility and Review Board. The Board dismissed Homburg's complaint. However, the Board questioned the Commission's policy in handling such complaints, which the Board felt required more flexibility. The Board therefore directed a policy revision. Homburg appealed the dismissal of its complaint. The Commission cross-appealed the order to revise its policy.

The Nova Scotia Court of Appeal dismissed the appeal and the cross-appeal.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constituted procedural fairness - The Halifax Regional Water Commission ordered Homburg Canada Inc. to install a backflow prevention device at its Dartmouth Shopping Centre so as to avoid the risk of contaminating the public drinking water supply - Homburg sought relief from the Nova Scotia Utility and Review Board - The Board dismissed Homburg's complaint - However, the Board questioned the Commission's policy in handling such complaints, which the Board felt required more flexibility - The Board therefore directed a policy revision - Homburg appealed, asserting that it had successfully attacked the Commission's policy only to, in the end, lose its complaint on the merits - Homburg argued that, by deciding the case on the merits, the Board denied it natural justice - The Nova Scotia Court of Appeal dismissed the appeal - Homburg advanced this ground of appeal on the incorrect premise that the Board directed a substantive change to the policy - In fact, the Board did not open the door to exceptions - Therefore, on this basis, it was perfectly legitimate and understandable for the Board to then proceed to the merits of the issue - The Board fully canvassed whether or not Homburg would be considered exempt, not in the sense of being excepted or excused but in the sense of whether it was clearly caught by the policy - Thus, it was fair for the Board to conclude that it was "not persuaded that an exemption from the requirement should be granted to Homburg" - The Board at no time denied Homburg natural justice - See paragraphs 66 to 78.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - The Halifax Regional Water Commission ordered Homburg Canada Inc. to install a backflow prevention device at its Dartmouth Shopping Centre so as to avoid the risk of contaminating the public drinking water supply - Homburg sought relief from the Nova Scotia Utility and Review Board - The Board dismissed Homburg's complaint - However, the Board questioned the Commission's policy in handling such complaints, which the Board felt required more flexibility - The Board therefore directed a policy revision - The Commission cross-appealed the order to revise its policy, asserting that the Board erred in, inter alia, finding that the Commission fettered its discretion - The Nova Scotia Court of Appeal dismissed the cross-appeal - The Board correctly covered the legal principles and adequately captured the parties' respective positions - Homburg had filed an objection with the Commission - The Commission was obligated to listen to Homburg's request for an exemption with an "open mind" in case there was a valid case for an exemption - The Commission did not do this and strictly followed its policy - This was a fettering of discretion - See paragraphs 45 to 48.

Administrative Law - Topic 9069

Boards and tribunals - Jurisdiction of particular boards and tribunals - Energy and utility boards - The Halifax Regional Water Commission ordered Homburg Canada Inc. to install a backflow prevention device at its Dartmouth Shopping Centre so as to avoid the risk of contaminating the public drinking water supply - Homburg sought relief from the Nova Scotia Utility and Review Board - The Board dismissed Homburg's complaint - However, the Board questioned the Commission's policy in handling such complaints, which the Board felt required more flexibility - The Board therefore directed a policy revision - The Commission cross-appealed the order to revise its policy - The Nova Scotia Court of Appeal dismissed the cross-appeal - The Board's direction was procedural and not substantive in nature where the Board made it clear that it approved the program in substance and the Board's order was instructive - The Commission's fears that the Board's direction represented a substantive change were unfounded - Instead, the Board simply directed a reasonable procedural change which would "fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law" - The court dismissed the Commission's cross-appeal, but on the understanding that "the Board's direction to have all objections 'investigated and given due consideration' meant no more than a change in procedure that would ensure more flexibility in determining whether if in fact the policy applied to that particular customer" - See paragraphs 49 to 57.

Administrative Law - Topic 9069

Boards and tribunals - Jurisdiction of particular boards and tribunals - Energy and utility boards - The Halifax Regional Water Commission ordered Homburg Canada Inc. to install a backflow prevention device at its Dartmouth Shopping Centre so as to avoid the risk of contaminating the public drinking water supply - Homburg sought relief from the Nova Scotia Utility and Review Board - The Board dismissed Homburg's complaint - However, the Board questioned the Commission's policy in handling such complaints, which the Board felt required more flexibility - The Board therefore directed a policy revision - Homburg appealed, asserting that it had successfully attacked the Commission's policy only to, in the end, lose its complaint on the merits - Homburg argued that, by deciding the case on the merits, the Board proceeded without jurisdiction - The Nova Scotia Court of Appeal dismissed the appeal - Under the Public Utilities Act (N.S.), the Board had a clear and very broad mandate to supervise public utilities, including the Commission (s. 18) - The Act directed a liberal interpretation of the Board's powers (s. 116(1)) - The Board's authority to determine Homburg's complaint on the merits was without question - See paragraphs 59 to 65.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Halifax Regional Water Commission ordered Homburg Canada Inc. to install a backflow prevention device at its Dartmouth Shopping Centre so as to avoid the risk of contaminating the public drinking water supply - Homburg sought relief from the Nova Scotia Utility and Review Board - The Board dismissed Homburg's complaint - However, the Board questioned the Commission's policy in handling such complaints, which the Board felt required more flexibility - The Board therefore directed a policy revision - The Commission cross-appealed the order to revise its policy, asserting that the Board erred in (a) finding that the Commission fettered its discretion and (b) by consequently ordering a revision of its policy - The Nova Scotia Court of Appeal held that "in this context, the Board had a two-fold task. Firstly, it had to properly articulate the law in this area. Secondly, it had to apply this law to the facts in order to determine whether or not the Commission fettered its discretion. Each task triggers a separate standard of review analysis. The first task involves a legal question which, depending upon the context, can attract either standard [...] Here the law involving the fettering of discretion falls outside the Board's expertise and I would therefore apply the correctness standard. The second task, however, involves an exercise of mixed law and fact to which the Board, in my view, is entitled to deference. [...] Therefore, the reasonableness standard applies." - See paragraphs 35 to 44.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Halifax Regional Water Commission ordered Homburg Canada Inc. to install a backflow prevention device at its Dartmouth Shopping Centre so as to avoid the risk of contaminating the public drinking water supply - Homburg sought relief from the Nova Scotia Utility and Review Board - The Board dismissed Homburg's complaint - However, the Board questioned the Commission's policy in handling such complaints, which the Board felt required more flexibility - The Board therefore directed a policy revision - Homburg appealed, asserting that it had successfully attacked the Commission's policy only to, in the end, lose its complaint on the merits - Homburg argued that, by deciding the case on the merits, the Board proceeded without jurisdiction and denied Homburg natural justice in the process - The Nova Scotia Court of Appeal held that Homburg "challenges the Board's core jurisdiction to hold a hearing and to grant certain relief. That is a true jurisdictional question of law which we will therefore review on a correctness standard" - See paragraph 58.

Cases Noticed:

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. 33].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 37].

Canada Post Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2009), 276 N.S.R.(2d) 287; 880 A.P.R. 287; 2009 NSCA 41, refd to. [para. 37].

Young v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2009), 276 N.S.R.(2d) 276; 880 A.P.R. 276; 2009 NSCA 35, refd to. [para. 37].

Pelley v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2008), 265 N.S.R.(2d) 143; 848 A.P.R. 143; 2008 NSCA 46, refd to. [para. 37].

Amherst (Town) et al. v. Superintendent of Pensions (N.S.) (2008), 268 N.S.R.(2d) 339; 857 A.P.R. 339; 2008 NSCA 74, refd to. [para. 37].

Casino Nova Scotia v. Labour Relations Board (N.S.) et al. (2009), 273 N.S.R.(2d) 370; 872 A.P.R. 370; 2009 NSCA 4, refd to. [para. 37].

Creager v. Provincial Dental Board (N.S.) (2005), 230 N.S.R.(2d) 48; 729 A.P.R. 48; 2005 NSCA 9, refd to. [para. 66].

Rogier v. Halifax (Regional Municipality) et al. (2009), 273 N.S.R.(2d) 292; 872 A.P.R. 292; 2009 NSSC 14, refd to. [para. 66].

Counsel:

Michael J. O'Hara, for the appellant;

Kevin Latimer, Q.C., and Sarah Drodge, for the respondent HRWC;

Richard J. Melanson, for the respondent, NSUARB.

This appeal and cross-appeal were heard on February 4, 2010, by MacDonald, C.J.N.S., Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by MacDonald, C.J.N.S., on March 24, 2010.