Johnston et al. v. Prince Edward Island, (1995) 128 Nfld. & P.E.I.R. 1 (PEITD)

• Judge: DesRoches, J.
• Case Date: August 29, 1994
• Jurisdiction: Prince Edward Island
• Citations: (1995), 128 Nfld. & P.E.I.R. 1 (PEITD)

Johnston v. P.E.I. (1995), 128 Nfld. & P.E.I.R. 1 (PEITD);

    400 A.P.R. 1

MLB headnote and full text

Franklin R. Johnston and CHD Investments Inc. (plaintiffs) v. The Government of Prince Edward Island (defendant)

(GDC-4460)

Indexed As: Johnston et al. v. Prince Edward Island

Prince Edward Island Supreme Court

Trial Division

DesRoches, J.

February 7, 1995.

Summary:

A developer sought a declaration that provisions of s. 11.2 of Part III.1 of the Planning Act Regulations relating to retail devel­opment were invalid and ultra vires the powers conferred upon the Lieutenant-Gov­ernor-in-Council by s. 46 of the Prince Edward Island Planning Act. The Province subsequently enacted the Shopping Centres (Development) Act. The parties agreed to state a case to determine whether, assuming that the impugned regu­lation was ultra vires, the Shopping Centres (Development) Act oper­ated retroactively so as to bar the de­veloper's building permit application.

The Prince Edward Island Court of Appeal, in a decision reported 26 Nfld. & P.E.I.R. 317; 72 A.P.R. 317, concluded that the Shopping Centres (Development) Act did not constitute a bar and ordered the parties to proceed to a determination of whether the impugned regulation was ultra vires. The Attorney General sought leave to appeal to the Supreme Court of Canada.

The Prince Edward Island Court of Appeal, in a decision reported 29 Nfld. &. P.E.I.R. 237; 82 A.P.R. 237, granted leave and an ex­tension of time to appeal. The Attorney General applied for an order clarifying the order granting leave and the extension of time.

The Prince Edward Island Court of Appeal, in a decision reported 29 Nfld. & P.E.I.R. 270; 82 A.P.R. 270, granted the order and clarified its decision. The Province passed a Bill which repealed the Shopping Centre (Development) Act, amended the Planning Act and rendered the vires of the impugned regulation academic. The developer sued the Province asserting that the Province passed ultra vires legislation, acted in bad faith, abused its authority or power, committed abuse of process, interfered with contractual relations and made negligent misrepresenta­tions.

The Prince Edward Island Supreme Court, Trial Division, declared the impugned legis­lation valid and dismissed the action.

For related proceedings see also 20 Nfld. & P.E.I.R. 140; 53 A.P.R. 140; 20 Nfld. & P.E.I.R. 161; 53 A.P.R. 161; 73 Nfld. & P.E.I.R. 219; 229 A.P.R. 219; 73 Nfld. & P.E.I.R. 222; 229 A.P.R. 222; 73 Nfld. & P.E.I.R. 228; 229 A.P.R. 228; 94 Nfld. & P.E.I.R. 4; 298 A.P.R. 4.

Administrative Law - Topic 3204

Judicial review - General - Agencies or tribunals subject to review - Lieutenant-Governor-in-Council - The Prince Edward Island Lieutenant-Gov­ernor-in-Council enacted an Order-in-Council which amended the Planning Act Regula­tions to prohibit the issuance of build­ing permits for the construction of shop­ping malls larger than a specified size - The Prince Edward Island Supreme Court, Trial Divi­sion, referred to a discussion by the British Columbia Supreme Court respecting judi­cial review of regulations to determine whether the enabling legislation authorized the regula­tions - The court affirmed that the Lieu­tenant-Governor-in-Council had authority to make the amend­ment, where the Planning Act had autho­rized the mak­ing of regulations respecting the use of develop­ment and building per­mits and the terms and conditions under which a permit could be issued or refused - See para­graphs 121 to 123.

Administrative Law - Topic 3211

Judicial review - General - Review of exercise of statutory power - Bad faith - Plaintiffs alleged that the Province of Prince Edward Island acted in bad faith at differ­ent times at all three levels; execu­tive, legislative and managerial - The Prince Edward Island Supreme Court, Trial Divi­sion, reviewed the concept of bad faith in relation to the exercise of statutory powers - See paragraphs 234, 235.

Administrative Law - Topic 3211

Judicial review - General - Review of exercise of statutory power - Bad faith - Plaintiffs sued the Province of Prince Edward Island making allegations of bad faith - Included was an allegation that Crown employees manipulated a planning commit­tee into an official commun­ity plan planning process for the purpose of delay­ing and preventing the plaintiffs' building permit application - The plaintiffs also asserted that the Minister of Highways and the Cabinet deliberately chose not to make highway improvements for the pur­pose of delaying the plaintiffs' building project - The Prince Edward Island Supreme Court, Trial Divi­sion, concluded that the evidence did not support the allega­tions - See para­graphs 236 to 248.

Administrative Law - Topic 3211

Judicial review - General - Review of exercise of statutory power - Bad faith - Plaintiffs asserted that the Province of Prince Edward Island acted in bad faith in enacting legislation which was competition legislation and ultra vires the Province - The Prince Edward Island Supreme Court, Trial Division, rejected the assertion - The legislation was intra vires the provincial government power - The government's actions were based on econ­omic policy and politics and the court could not inquire into the validity of those grounds - See paragraphs 249 to 252.

Agency - Topic 323

Creation of relations - Parties - Who constitutes an agent - [See Crown - Topic 26 ].

Constitutional Law - Topic 401

Powers of parliament and the legislatures - General - Section 50.13 of a Planning Act Amending Act prohibited the issuance of building permits for malls exceeding a specified size, notwithstanding a court order declaring a vested right to a permit - A developer asserted that s. 50.13 was ultra vires because it was aimed at the developer and usurped the Provincial Courts' jurisdiction (Constitution Act, s. 92) - The Prince Edward Island Supreme Court, Trial Division, rejected the asser­tions - A provincial legislature, when dealing with matters of provincial concern, such as property and civil rights in the province, has authority to enact legislation concerning a particular right or property or affecting the ability to sue in the Supreme Court - See paragraphs 192 to 217.

Constitutional Law - Topic 1044

Interpretation of Constitution Act - Pre­sumptions - Of validity - [See Constitu­tional Law - Topic 2621 and Courts - Topic 5683 ].

Constitutional Law - Topic 2566

Determination of validity of statutes or acts - Evidence and proof - Burden of proof - [See Constitutional Law - Topic 2621 ].

Constitutional Law - Topic 2621

Determination of validity of statutes or acts - Considerations - General - The Prince Edward Island Supreme Court, Trial Division, reviewed the considerations relevant to determining the constitutional validity of a statute - See paragraphs 100 to 107 - The court stated that the burden of rebutting the presumption of constitu­tional validity rests upon the person chal­lenging the legislation and cannot be met by mere conjecture or speculation - See para­graph 104.

Constitutional Law - Topic 2701

Determination of validity of statutes or acts - Colourability - General - The Province of Prince Edward Island intro­duced legislation directed at the regulation and control of major retail development within the province - The Prince Edward Island Supreme Court, Trial Division, reviewed the colourability doctrine and concluded that the impugned legislation were not colourable attempts to preserve the appearance of constitutionality in order to conceal an unconstitutional objective - See paragraphs 218 to 221.

Constitutional Law - Topic 6440

Federal jurisdiction (s. 91) - Criminal law - General - The Prince Edward Island Supreme Court, Trial Division, reviewed the tests for determining whether impugned legislation is within the feder­al criminal law jurisdiction - See para­graphs 108 to 110.

Constitutional Law - Topic 6503

Federal jurisdiction (s. 91) - Criminal law - Respecting maintenance of competi­tion - [See second, third and fourth Constitu­tional Law - Topic 7227 ].

Constitutional Law - Topic 6503

Federal jurisdiction (s. 91) - Criminal law - Respecting maintenance of competi­tion - Section 50.13 of a Planning Act Amending Act prohibited the issuance of building permits for malls exceeding a specified size, notwithstanding a court order declaring a vested right to a permit - A developer asserted that s. 50.13, being directed at stopping the developer from building a mall, constituted competition legislation and was ultra vires the Province - The Prince Edward Island Supreme Court, Trial Division, rejected the assertion - See paragraphs 192 to 217 and 222 to 227.

Constitutional Law - Topic 7227

Provincial jurisdiction (s. 92) - Property and civil rights - Land - Use - [See Constitutional Law - Topic 401 ].

Constitutional Law - Topic 7227

Provincial jurisdiction (s. 92) - Property and civil rights - Land - Use - Part III.1 of the Planning Act Regulations prohibited the issuing of a build­ing permit for the construction of a shop­ping mall with more than 50,000 square feet of retail space - A developer asserted that the regulations were intended to pre­vent the developer from competing with the Charlottetown Area Development Corpor­ation projects, which the province had invested in, and was in pith and sub­stance competi­tion legisla­tion ultra vires the Province - The Prince Edward Island Supreme Court, Trial Divi­sion, rejected the assertion - The court concluded that the regulations were enacted to give the gov­ern­ment time to consider the policy it would adopt respect­ing major retail devel­opment and were within the Province's property and civil rights - See para­graphs 117 to 132 and 222 to 227.

Constitutional Law - Topic 7227

Provincial jurisdiction (s. 92) - Property and civil rights - Land - Use - The Prince Edward Island Shopping Centres (Development) Act imposed a two year moratorium on the construction of shop­ping centres or retail stores with more than 6,000 square metres of gross floor area - A developer asserted that the Act was passed to protect the Province's investment in downtown Charlottetown development, and in pith and substance was competition legislation falling within the criminal law power of the federal govern­ment - The developer further asserted that the Act's penalty clause was of a criminal nature - The Prince Edward Island Supreme Court, Trial Division, rejected the assertions, concluding that the Act was intra vires the provincial head of power respecting prop­erty and civil rights - See paragraphs 133 to 151 and 222 to 227.

Constitutional Law - Topic 7227

Provincial jurisdiction (s. 92) - Property and civil rights - Land - Use - The Prov­ince of Prince Edward Island amended the Planning Act to introduce a planning regime respecting retail development involving the provision of new or addi­tional retail space in excess of 2000 square meters - A developer asserted that the amendments were intended to impose a scheme that would make it uneconomical to apply for a shopping mall permit and protect the Province's investment in down­town Charlottetown development - The developer asserted that the amendments were in pith and substance competition legisla­tion falling within the federal juris­diction of criminal law (Con­sti­tution Act, 91(27)) - The Prince Edward Island Supreme Court, Trial Division, concluded that the amending Act was intra vires the provin­cial head of power respecting prop­erty and civil rights - See paragraphs 152 to 191 and 222 to 227.

Courts - Topic 5683

Provincial courts - Jurisdiction or powers - Re constitutionality of statutes - The Prince Edward Island Supreme Court, Trial Division, reviewed the role of a court in assessing the constitutionality or validity of legislative enactments - The court stated that "... a court must be sensitive to the freedom of action which must be allowed the legislatures to safeguard their legit­imate interests as in their wisdom they see fit. A court must presume the legisla­ture has acted constitutionally and the wisdom or expediency, or likely success of a par­ticular policy expressed in legislation is not subject to judicial review. ... The onus of rebutting the presumption of con­stitu­tionality is upon the plaintiffs ..." - See paragraphs 224, 225

Courts - Topic 5695.1

Provincial courts - Jurisdiction or powers - Respecting orders of the Lieutenant-Governor-in-Council - [See Administra­tive Law - Topic 3204 ].

Crown - Topic 26

General principles - Definitions - What constitutes an agent of the Crown - The Charlottetown Area Development Corpo­ration (CADC) was incorporated under the Companies Act - Shares were owned 75% by the Province, 15% by Charlottetown and 10% by a Regional Planning Board - CADC had its own bylaws, board of di­rectors, officers and assets - Share­holders and directors' meetings were held annually - Each director could vote on any issue as the director saw fit - The Prince Edward Island Supreme Court, Trial Divi­sion, concluded that CADC was not a Crown agent, where the evidence did not establish the requisite extent and degree of control - CADC's receipt of development plan funds, a yearly appropriation from the government as part of its operating budget and government guaranteed loans did not create an agency relationship - See para­graphs 73 to 99.

Crown - Topic 545

Orders-in-council - Judicial review - [See Administrative Law - Topic 3204 ].

Crown - Topic 1501

Torts by and against Crown - General and definitions - General - A developer sued the Province of Prince Edward Island in tort, claiming that the Province acted through a variety of its servants and agents to cause the developer damage - The plaintiffs asserted that in the same way that directors and executive officers of companies are con­sidered to be the "directing mind" of a corporation, the Premier and Cabinet Min­isters were the "directing mind" of the prov­incial govern­ment whether it was acting in its legisla­tive, executive or implementation mode - The Prince Edward Island Supreme Court, Trial Divi­sion, rejected the analogy - See paragraph 231.

Crown - Topic 1536

Torts by and against Crown - Liability of Crown for acts of servants - Abuse of power - A developer sued the Province of Prince Edward Island making allegations of abuse of authority or power - The developer asserted that the Province, through its servants and agents, chose a deliberate course of action to stop the developer from building a proposed shop­ping mall - The Prince Edward Island Supreme Court, Trial Division, reviewed the jurisprudence and concluded that the allegations were without legal foundation - See paragraphs 256 to 262.

Crown - Topic 1551

Torts by and against Crown - Interference with economic relations - General - A developer sued the Province of Prince Edward Island for the tort of interference with contractual relations - Included was an allegation that a Crown employee manipulated a planning committee into adopting an official community plan that delayed the developer's planned develop­ment - The Prince Edward Island Supreme Court, Trial Division, reviewed the appli­cable legal principles and rejected the allegation - See paragraphs 271 to 278.

Crown - Topic 1554

Torts by and against Crown - Interference with economic relations - By enactment of legislation - The Province of Prince Edward Island introduced legislation directed at the regulation and control of major retail development within the Prov­ince - A developer sued the Province, asserting that the passing of the legislation constituted a tortious interference with the developer's contractual relations - The Prince Edward Island Supreme Court, Trial Divi­sion, concluded that even if the legis­lation interfered with the developer's con­tractual relations, the legislation was valid and, accordingly, the developer did not have a cause of action - See paragraphs 279 to 281.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences - Bars or ex­clusions - "Policy" decisions - A devel­oper sued the Province of Prince Edward Island, assert­ing that the Province's deci­sions respecting an Official Community Plan and to intro­duce legislation directed at the regulation and control of major retail development were operational decisions intended to protect the Province's com­mercial activ­ities - The Prince Edward Island Supreme Court, Trial Division, reviewed the concept of Crown immunity respecting policy decisions and the dis­tinction between policy and operation - The court rejected the assertions, where the decisions were policy related and the Province had not acted in bad faith or abused its authority - See paragraphs 295 to 302.

Expropriation - Topic 2

Right to compensation - General prin­ciples - Right to compensation at common law - [See Expropriation - Topic 190 ].

Expropriation - Topic 190

Right to compensation - Injurious affec­tion - Land subject to development restrictions - The Province of Prince Edward Island passed a Bill amending the Planning Act to prohibit the issuance of building permits for malls exceeding a specified size - A developer sued the Province, asserting that the Bill expropri­ated the developer's right to build a mall and the Province had a common law duty to provide compensation - The Prince Edward Island Supreme Court, Trial Divi­sion, rejected the assertion, stating that at most the amendments imposed a more stringent procedure for applying for a permit and that the developer ultimately obtained a permit - See paragraphs 290 to 294 - The court stated that "... where the legislature imposes some limitation on the use of property, but the legislation does not provide for compensation to the injuri­ously affected owner, no compensation is payable." - See paragraph 291.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepre­sentation - A developer sued the Province of Prince Edward Island making allega­tions of negligent misrepre­sentation - The Prince Edward Island Supreme Court, Trial Division, rejected the allegations, where the developer had not established the existence of any special relationship giving rise to a duty of care - Even if the requi­site relationship existed, the evidence did not support the allega­tions - See para­graphs 282 to 289.

Torts - Topic 5201

Interference with economic relations - Contracts - General - [See Crown - Topic 1551 ].

Torts - Topic 6251

Abuse of legal procedure - Abuse of process - General - A developer obtained a declaration that the Prince Edward Island Shopping Centres (Development) Act did not apply retroac­tively to the developer's building permit application - The court ordered the parties to proceed to a deter­mination respecting the vires of an impugned regulation - The Attorney Gen­eral obtained leave to appeal to the Supreme Court of Canada without taking steps to determine the vires of the regula­tion - The Province passed a Bill which rendered the vires of the regulation aca­demic - The developer sued the Prov­ince, alleging that it misused the court processes to give itself time to pass the Bill - The Prince Edward Island Supreme Court, Trial Division, rejected the allega­tion - See paragraphs 263 to 270.

Torts - Topic 6251

Abuse of legal procedure - Abuse of process - General - A developer sued the Province of Prince Edward Island making allegations of abuse of process - The allegations included that the Province wilfully passed legislation that was uncon­stitutional, oppressive and malicious - The Prince Edward Island Supreme Court, Trial Division, rejected the developer's assertion that the tort of abuse of process applied to governmental processes and the processes of tribunals and commissions - The court concluded that the tort had a limited appli­cation to court and judicial processes and the above allegations did not fall within the narrow limits - See paragraphs 263 to 267.

Cases Noticed:

Perehinec v. Northern Pipeline Agency, [1983] 2 S.C.R. 513; 50 N.R. 248; 51 A.R. 10, consd. [para. 79].

R. v. Eldorado Nuclear Ltd.; R. v. Ura­nium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 4 D.L.R.(4th) 193; 8 C.C.C.(3d) 449, consd. [para. 79].

Metropolitan Meat Industry Board v. Sheedy, [1927] A.C. 899 (Aus. P.C.), folld. [para. 98].

British Columbia Power Corp. v. British Columbia (Attorney General) (1962), 38 W.W.R.(N.S.) 657 (B.C.C.A.), consd. [para. 98].

McNeil v. Nova Scotia Board of Censors, [1978] 2 S.C.R. 662; 19 N.R. 570; 25 N.S.R.(2d) 128; 36 A.P.R. 128; 84 D.L.R.(3d) 1, consd. [para. 101].

Canadian Industrial Gas & Oil Ltd. v. Saskatchewan et al. and Canada (Attor­ney General) et al., [1978] 2 S.C.R. 545; 18 N.R. 107, consd. [para. 102].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, appld. [para. 105].

Reference Re Validity of Section 5(a) of Dairy Industry Act (Margarine Case), [1949] S.C.R. 1; [1949] 1 D.L.R. 433, refd to. [para. 109].

Margarine Case - see Reference Re Validity of Section 5(a) of Dairy Indus­try Act (Margarine Case).

R. v. Boggs, [1981] 1 S.C.R. 49; 34 N.R. 520, consd. [para. 110].

Morgan et al. v. Prince Edward Island (Attorney General) et al., [1976] S.C.R. 349; 5 N.R. 455; 7 Nfld. & P.E.I.R. 537; 3 A.P.R. 537, consd. [para. 112].

Walter v. Alberta (Attorney General), [1969] S.C.R. 383, consd. [para. 112].

Forfar v. East Gwillimbury (Township) (1971), 20 D.L.R.(3d) 377 (Ont. C.A.), consd. [para. 114].

British Columbia Civil Liberties Associ­ation v. British Columbia (Attorney General) (1988), 24 B.C.L.R.(2d) 189 (S.C.), consd. [para. 121].

Prince Edward Island (Provincial Secre­tary) v. Egan, [1941] S.C.R. 396, consd. [para. 149].

Smith v. R., [1960] S.C.R. 776, consd. [para. 150].

R. v. Morgentaler (1990), 99 N.S.R.(2d) 293; 270 A.P.R. 293; 270 A.P.R. 229 (Prov. Ct.), refd to. [para. 183].

Bonham's Case (1610), 8 Co. Rep. 114(a); 77 E.R. 646, not folld. [para. 194].

Smith v. London (City) (1909), 20 O.L.R. 133 (C.A.), consd. [para. 195].

Standard Oil Co. of British Columbia v. Kamloops (City), [1972] 5 W.W.R. 660 (B.C.S.C.), dist. [para. 196].

Winton (H.G.) Ltd. v. North York (Bor­ough) (1978), 88 D.L.R.(3d) 733 (Ont. Div. Ct.), dist. [para. 196].

Hollett v. Halifax (City) (1975), 58 D.L.R.(3d) 746 (N.S.T.D.), dist. [para. 196].

R. v. Thomson (1957), 9 D.L.R.(2d) 107 (Ont. C.A.), dist. [para. 196].

R. (ex rel. Cox) v. Thomson - see R. v. Thomson.

Belvedere Estates Ltd. v. Saanich (District) (1980), 19 B.C.L.R. 110 (S.C.), dist. [para. 196].

Haymour Holdings Ltd. v. British Colum­bia (1986), 5 B.C.L.R.(2d) 145 (S.C.), consd. [para. 196].

Florence Mining Co. v. Cobalt Lake Min­ing Co. (1909), 18 O.L.R. 275 (C.A.), consd. [para. 202].

Montreal Trust Co. v. Abitibi Power & Paper Co., [1943] 4 D.L.R. 1 (P.C.), consd. [para. 208].

Drewery et al. v. Century City Develop­ments Ltd. (No. 2) (1974), 52 D.L.R.(3d) 515 (Ont. H.C.), consd. [para. 209].

Upper Churchill Water Rights Reversion Act, 1980, Re; Churchill Falls (Labrador) Corp. et al. v. Newfoundland (Attorney General) et al., [1984] 1 S.C.R. 297; 53 N.R. 268; 47 Nfld. & P.E.I.R. 125; 139 A.P.R. 125; 8 D.L.R.(4th) 1, consd. [para. 210].

Reference Re Upper Churchill Water Rights Reversion Act - see Upper Churchill Water Rights Reversion Act, 1980, Re.

Saskatoon Criminal Defence Lawyers Association et al. v. Saskatchewan and Lane (1984), 32 Sask.R. 122; 11 D.L.R.(4th) 239 (Q.B.), consd. [para. 222].

Stath v. Williams, 367 N.E.2d 1120 (Ind. App.), refd to. [para. 234].

Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 689, consd. [para. 235].

Irving Oil Ltd. et al. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91; 143 D.L.R.(3d) 577, consd. [para. 251].

Thorne's Hardware Ltd. et al. v. R. - see Irving Oil Ltd. et al. v. National Har­bours Board.

Roman Corp. v. Hudson's Bay Oil & Gas Co., [1973] S.C.R. 820, consd. [para. 255].

Gershman v. Vegetable Producers' Mar­keting Board (Man.) (1977), 69 D.L.R.(3d) 114 (Man. C.A.), consd. [para. 256].

Welbridge Holdings Ltd. v. Winnipeg (City), [1971] S.C.R. 957, consd. [para. 287].

Barratt v. North Vancouver, [1980] 2 S.C.R. 418; 33 N.R. 293; 27 B.C.L.R. 182; 8 M.V.R. 294; 14 C.C.L.T. 169; 13 M.P.L.R. 116, refd to. [para. 258].

Couture v. R. (1972), 28 D.L.R.(3d) 301 (F.C.T.D.), dist. [para. 263].

Atland Containers Ltd. v. Macs Corp. (1974), 7 O.R.(2d) 107 (H.C.), refd to. [para. 265].

Tsiopoulos v. Commercial Union Assur­ance Co. (1986), 32 D.L.R.(4th) 614 (H.C.), consd. [para. 265].

Thomson (D.C.) & Co. v. Deakin, [1952] Ch. 646 (C.A.), [para. 272].

Posluns v. Toronto Stock Exchange (1964), 46 D.L.R.(2d) 210 (Ont. H.C.), consd. [para. 273].

Cheticamp Fisheries Co-Operative Ltd. et al. v. Canada (1994), 134 N.S.R.(2d) 13; 383 A.P.R. 13 (S.C.), consd. [para. 276].

Hedley Byrne & Co. v. Heller & Part­ners Ltd., [1963] 2 All E.R. 575; [1963] 3 W.L.R. 101; [1964] A.C. 465 (H.L.), appld. [para. 282].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, consd. [para. 282].

Steer Holdings Ltd. v. Manitoba et al. (1992), 83 Man.R.(2d) 171; 36 W.A.C. 171; 99 D.L.R.(4th) 61 (C.A.), consd. [para. 292].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 41 B.C.L.R.(2d) 350; 18 M.V.R.(2d) 1; 64 D.L.R.(4th) 689, consd. [para. 297].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, consd. [para. 297].

Swinamer v. Nova Scotia (Attorney Gen­eral) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, consd. [para. 297].

Statutes Noticed:

Companies Act, R.S.P.E.I. 1974, c. C-15, sect. 13 [para. 97].

Constitution Act, 1867, sect. 91 [para. 105]; sect. 91(27) [para. 100 et seq.]; sect. 92 [para. 105]; sect. 92(13) [para. 111 et seq.]; sect. 92(15) [para. 148].

Crown Proceedings Act, R.S.P.E.I. 1988, c. C-32, sect. 4 [paras. 229, 230].

Orders-in-Council, EC 382/79, generally [para. 60 et seq.]; EC 541/78, generally [para. 46 et seq.]; 1083/79 [paras. 162, 173].

Planning Act, An Act to Amend, S.P.E.I. 1981, c. 28, sect. 50.13 [para. 69 et seq.]; sect. 50.13(1), sect. 50.13(2), sect. 50.13(3) [paras. 69, 192]; Part III [para. 5].

Planning Act, R.S.P.E.I. 1974, c. P-6, sect. 24(1.8) [para. 38]; sect. 24(2) [para. 36]; sect. 46 [para. 56 et seq.]; sect. 46(1) [paras. 118, 120, 124].

Planning Act, R.S.P.E.I. 1988, c. P-8, sect. 10 [para. 38]; sect. 22 [para. 14].

Planning Act Regulations (P.E.I.), sect. 2, sect. 11.1 [para. 60]; sect. 11.2 [paras. 60, 62]; sect. 11.3 [para. 60]; sect. 182(4) [paras. 44, 46, 51]; sect. 182(5), sect. 182(6) [para. 45 et seq.]; Part III.1 [paras. 60, 62, 117].

Planning Act, S.P.E.I. 1968, c. 40, gen­erally [para. 11].

Public Inquiries Act, R.S.P.E.I. 1974, c. P-30, generally [paras. 67, 162].

Shopping Centres (Development) Act, S.P.E.I. 1979, c. 17, sect. 6 [paras. 134, 147, 151].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed. 1979) [para. 233].

Edinger, Elizabeth R., Case Note (1985), 63 Can. Bar Rev. 203, generally [para. 220].

Evans, Judicial Review of Administrative Action (4th Ed.), generally [para. 234].

Fridman, G.H.L., The Law of Torts in

Canada, vol. 2, pp. 250 [para. 264]; 279 [para. 271].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), pp. 15-18 [para. 219]; 18-5, 18-6 [para. 109]; 21-25 [para. 111].

Rogers, Ian MacFee, Canadian Law of Planning and Zoning, pp. 1 [para. 113]; 7 [para. 115].

Stevenson & Kellogg Report, The Greater Charlottetown Urban Area Opportunities Study (December 1973), vols. I, II, III, generally [para. 10 et seq.].

Strayer, Barry L., The Canadian Constitu­tion and the Courts (2nd Ed. 1983), p. 215 [para. 223].

Counsel:

Norville T. Getty, for Franklin R. Johnston;

Zia H. Chishti, for CHD Investments Inc.;

Jack O'Keefe, Q.C., and Don MacKenzie, for the Government of Prince Edward Island.

This case was heard on December 13-16, 20 and 21, 1993 and January 4-6, 17-20, 24-27 and 31, February 1-3, 8-10, 14-17, 21-24 and 28, March 1-3, 7-9, 14-17, 29 and 30, April 5 and 6, May 24 and 25, 1994, with Post Trial Briefs filed August 29, 1994 and Rebuttal Briefs filed October 14, 1994, before DesRoches, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered judgment on February 7, 1995.