Lewvest Ltd. v. St. John's (City) et al., (1983) 42 Nfld. & P.E.I.R. 181 (NFCA)

• Judge: Mifflin, C.J.N., Gushue and Morgan, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: March 07, 1983
• Jurisdiction: Newfoundland and Labrador
• Citations: (1983), 42 Nfld. & P.E.I.R. 181 (NFCA)

Lewvest Ltd. v. St. John's (1983), 42 Nfld. & P.E.I.R. 181 (NFCA);

    122 A.P.R. 181

MLB headnote and full text

Lewvest Limited v. City of St. John's and Scotia Towers Limited

(1981 Nos. 151, 152 and 153)

Indexed As: Lewvest Ltd. v. St. John's (City) et al.

Newfoundland Court of Appeal

Mifflin, C.J.N., Gushue and Morgan, JJ.A.

March 7, 1983.

Summary:

Lewvest, owner of an office building in St. John's, brought three actions attempting to prevent the construction of a new office building in the area. Lewvest applied for declarations that demolition and construction permits issued by city council were void. Lewvest also applied for injunctions to prevent the demolition of an existing building on the construction site and to prevent the construction of a new building. The Newfoundland Supreme Court, Trial Division, in a judgment reported at paragraphs 18 to 188 below, dismissed the actions. Lewvest appealed.

The Newfoundland Court of Appeal dismissed the appeal, holding that the decision to grant the permits was a valid exercise of council's discretionary power.

Municipal Law - Topic 905

Council members - Conflicts of interest - Reasonable apprehension of bias - A city councillor voted to issue a permit to allow construction of a building - The councillor received a pension from one of a group of companies belonging to the construction company - The Newfoundland Court of Appeal held that there was no reasonable apprehension of bias where the councillor voted, because his pension was received under a contract and he had no further ties with the company - See paragraphs 8, 176 to 182.

Municipal Law - Topic 3226

Bylaws - Form and content - General - The Newfoundland Court of Appeal held that a local authority or municipal body must draft bylaws strictly within the framework of the legislative power delegated to it - See paragraph 6.

Municipal Law - Topic 3803

Bylaws - Quashing bylaws - General - Excess of power - A St. John's zoning bylaw required a certain minimum set-back from the street, rear and side of any building - The set-back requirements for the rear and side of buildings were challenged as being in excess of the council's authority - The Newfoundland Court of Appeal held that the set-back requirements were within Council's powers under ss. 106(c) and 367 of the City of St. John's Act - See paragraphs 9, 139.

Municipal Law - Topic 3857

Bylaws - Quashing bylaws - Grounds for judicial interference - Discretion - Prior fettering of - The Newfoundland Court of Appeal held that a local authority, or other such administrative body, could not fetter or restrict a discretionary power granted to it by provincial legislation by adopting bylaws which would inhibit or deny the exercise of the discretion - See paragraph 7.

Municipal Law - Topic 6211

Actions against municipality - Capacity to sue - General - The Newfoundland Court of Appeal referred generally to what factors give a person status to bring a civil action against a municipal or public body - See paragraph 11.

Municipal Law - Topic 6212

Actions against municipality - Capacity to sue - Persons specially affected - An office building owner brought three actions against the City of St. John's, claiming that the issuance of demolition and construction permits was ultra vires the city council - The owner submitted that the actions were brought to preserve the nature of the Heritage Area where his building and a proposed building were to be situated - The Newfoundland Court of Appeal held that the owner lacked status to bring the actions, because the alleged wrongful acts were of a public nature which did not specially affect the owner - See paragraphs 10 to 15.

Cases Noticed:

L'Association des Proprietaires des Jardins Tache Inc. and others v. Les Enterprises Dasken Inc. et al., [1974] S.C.R. 2, refd to. [paras. 10-15, 80-86].

Hope v. Hamilton Park Commissioners (1901), 1 O.L.R. 477, refd to. [paras. 11, 72, 87].

Robertson v. City of Montreal (1915), 52 S.C.R. 30, refd to. [para. 12].

MacIlreith v. Hart (1908), 39 S.C.R. 657, refd to. [para. 75].

Thorson v. Attorney General of Canada et al. (1974), 43 D.L.R.(3d) 1, refd to. [para. 76].

McNeil v. Nova Scotia Board of Censors and Attorney-General of Nova Scotia (1978), 19 N.R. 570; 25 N.S.R.(2d) 128; 36 A.P.R. 128; 55 D.L.R.(3d) 632, refd to. [para. 76].

Turtle v. Toronto (1924), 56 O.L.R. 252, refd to. [para. 87].

Orpen v. Roberts, [1925] S.C.R. 364, refd to. [para. 96].

Wyant v. Welch, [1942] O.R. 671, refd to. [para. 97].

Howarth v. Canadian Red Cross Society et al., [1943] 2 W.W.R. 692, refd to. [para. 97].

Tchaperoff v. City of Victoria et al. [1948] 2 W.W.R. 722, refd to. [para. 97].

Diana Restaurant Ltd. v. City of St. John et al. (1969), 1 N.B.R.(2d) 154, refd to. [para. 97].

Crowchild Inn Ltd. v. Couch et al., [1973] 1 W.W.R. 624, refd to. [para. 97].

Windsor Homes Limited v. St. John's Municipal Council (1978), 20 Nfld. & P.E.I.R. 360; 53 A.P.R. 360, refd to. [para. 103].

Ex Parte Sidebotham, [1880] 14 Ch. D. 458, refd to. [para. 110].

Seven Oaks Urban District Council v. Twinam, [1929] 2 K.B. 440, refd to. [para. 111].

R. v. The Keepers of the Peace and Justices of the County of London (1890), 25 Q.B.D. 357, refd to. [para. 114].

Ealing Borough Council v. Jones, [1959] 1 All E.R. 286, refd to. [para. 114].

Buxton et al. v. Minister of Housing and Local Government, [1961] Q.B. 278, refd to. [para. 114].

Verdun v. Sun Oil Company Limited, [1952] 1 D.L.R. 529, refd to. [para. 123].

Falls v. Shamrock Fuel Company, [1924] 4 D.L.R. 803, refd to. [para. 125].

Roman Catholic School Board for St. John's and Town of Wabana, Re (1981), 30 Nfld. & P.E.I.R. 387; 84 A.P.R. 387, refd to. [para. 126].

Barthropp v. West Vancouver et al. (1979), 17 B.C.L.R. 202, refd to. [para. 153].

B.C. Electric Company Limited v. Surrey (1956), 18 W.W.R.(N.S) 462, refd to. [para. 153].

Bunce v. Cobourg (1963), 39 D.L.R.(2d) 513, refd to. [para. 154].

Committee for Justice and Liberty et al. v. National Energy Board (1976), 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 176].

Statutes Noticed:

City of St. John's Act, R.S.N. 1970, c. 40, sect. 2, sect. 43, sect. 106, sect. 362(1), sect. 365, sect. 367, sect. 367A, sect. 377, sect. 397, sect. 402, sect. 403. [para. 69].

City of St. John's Zoning Bylaw, sect. 1, sect. 19, sect. 27 [para. 70].

City of St. John's Heritage Bylaw, sect. 11, sect. 12, sect. 13, sect. 14, sect. 17 [para. 71].

Authors and Works Noticed:

de Smith, Judicial Review of Administrative Action (3rd Ed.), p. 369 [para. 92].

Counsel:

John L. Joy, for the plaintiff-appellant;

Ian Kelly, for the first defendant-respondent;

Barrie Heywood, for the second defendant-respondent.

This case was heard before MIFFLIN, C.J.N., GUSHUE and MORGAN, JJ.A., of the Newfoundland Court of Appeal.

On March 7, 1983, GUSHUE, J.A., delivered the following judgment for the Court of Appeal.