Lindsay v. Nova Scotia (Minister of Consumer Affairs), (1986) 76 N.S.R.(2d) 208 (TD)

• Judge: MacIntosh, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 29, 1986
• Jurisdiction: Nova Scotia
• Citations: (1986), 76 N.S.R.(2d) 208 (TD)

Lindsay v. N.S. (1986), 76 N.S.R.(2d) 208 (TD);

    189 A.P.R. 208

MLB headnote and full text

Gertrude M. Lindsay v. R. Laird Sterling, Minister, Department of Consumer Affairs for the Province of Nova Scotia

(S.H. 57980)

Indexed As: Lindsay v. Nova Scotia (Minister of Consumer Affairs)

Nova Scotia Supreme Court

Trial Division

MacIntosh, J.

November 18, 1986.

Summary:

Lindsay applied under the Embalmers and Funeral Directors Act for a licence to operate a funeral home. Although Lindsay met the requirements of the Act and Regulations, the Minister denied the application on the ground that Lindsay was merely a front for her husband, who lost his licence because of fraud convictions in relation to his conduct of a funeral home. Lindsay applied for certiorari to quash the Minister's decision and mandamus to compel the Minister to issue the licence.

The Nova Scotia Supreme Court, Trial Division, allowed the application in part. The court quashed the Minister's decision where he breached his duty of fairness in basing the decision on extraneous matters (i.e. unproved suspicions of the husband's involvement). The court granted mandamus to compel the Minister to reconsider his decision.

Administrative Law - Topic 2264

Natural justice - Duty of fairness - When required - Section 19A(2) of the Embalmers and Funeral Directors Act provided that "the Minister may for any reasonable cause refuse to issue ... a licence" - The Nova Scotia Supreme Court, Trial Division, held that in making the decision, the Minister was under a duty of fairness, the exercise of which was reviewable by way of certiorari - See paragraphs 16 to 24.

Administrative Law - Topic 2608

Natural justice - Evidence and proof - Extraneous or irrelevant considerations - Lindsay applied under the Embalmers and Funeral Directors Act for a licence to operate a funeral home - Section 19A(2) of the Act empowered the Minister to refuse the application for any reasonable cause - Although Lindsay met the requirements of the Act and Regulations, the Minister refused the licence on the ground that he believed Lindsay was merely a front for her husband, who lost his licence because of fraud convictions in relation to his conduct of a funeral home - The Nova Scotia Supreme Court, Trial Division, held that the Minister, by basing his decision on unproved suspicions of the husband's involvement, breached his duty of fairness by relying on extraneous matters - The court allowed Lindsay's application for certiorari to quash the decision - See paragraphs 4 to 25.

Administrative Law - Topic 3589

Judicial review - Mandamus - Bars - Discretionary power - A Minister had a discretionary power to deny a licence under the Embalmers and Funeral Directors Act for any reasonable cause - An applicant successfully applied for certiorari to quash the Minister's refusal to issue a licence, where the Minister breached his duty of fairness by relying on extraneous matters - The Nova Scotia Supreme Court, Trial Division, held that mandamus was available to compel the Minister to reconsider his decision, but did not lie to compel the Minister to reach a particular decision, where his decision making power was discretionary - See paragraphs 27 to 32.

Administrative Law - Topic 5003

Judicial review - Certiorari - When available - The Nova Scotia Supreme Court, Trial Division, held that certiorari was available to quash a decision of a Minister of the provincial Cabinet, where that decision breached the Minister's duty of fairness - See paragraphs 6 to 24.

Administrative Law - Topic 5024

Judicial review - Certiorari - Grounds for granting - Consideration of irrelevant matters - [See Administrative Law - Topic 2608 above].

Cases Noticed:

Bedford Service Commission et al. v. Attorney General of Nova Scotia (1977), 18 N.S.R.(2d) 132; 20 A.P.R. 132, appld. [para. 10].

Irving Oil Ltd. et al. v. Attorney General of Nova Scotia (1979), 35 N.S.R.(2d) 269; 62 A.P.R. 269, appld. [para. 11].

D.R. Fraser & Co. v. Minister of National Revenue, [1949] A.C. 36 (P.C.), appld. [para. 11].

Irving Oil Limited, Canaport Limited, Kent Lines Limited and Thorne's Hardware Limited v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 12].

R. v. Minister of Mineral Resources (Sask.), [1973] 1 W.W.R. 199, refd to. [para. 28].

Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 1007, refd to. [para. 30].

Statutes Noticed:

Embalmers and Funeral Directors Act, R.S.N.S. 1967, c. 86, sect. 12, sect. 16(1), sect. 19, sect. 19A, sect. 19B, sect. 19C, sect. 19D, sect. 19E [para. 5]; sect. 20A [para. 6].

Authors and Works Noticed:

Mullen, Administrative Law (2nd Ed.), p. 3-197 [para. 7].

Jones and deVillars, Principles of Administrative Law, pp. 174-176 [para. 8]; 177 [para. 9].

Reid and David, Administrative Law and Practice (2nd Ed.), p. 403 [para. 29].

de Smith, Judicial Review of Administrative Action (4th Ed.), pp. 553-554 [para. 29].

Counsel:

Mark H. Arnold, for the applicant;

Alison Scott, for the respondent.

This application was heard on October 29, 1986, at Halifax, N.S., before MacIntosh, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on November 18, 1986.