Marché de Poisson du Quai ltée, Le v. Acadian Peninsula District Planning Commission and Caraquet (Town), (1983) 47 N.B.R.(2d) 113 (TD)

• Judge: Deschênes, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 01, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 47 N.B.R.(2d) 113 (TD)

Marché Poisson v. Planning Comm. (1983), 47 N.B.R.(2d) 113 (TD);

    47 R.N.-B.(2e) 113; 124 A.P.R. 113

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Le Marché de Poisson du Quai Limitée v. Acadian Peninsula District Planning Commission and Caraquet, Town of

(No. C/C/6/83)

Indexed As: Marché de Poisson du Quai ltée, Le v. Acadian Peninsula District Planning Commission and Caraquet (Town)

Répertorié: Marché de Poisson du Quai ltée, Le v. Acadian Peninsula District Planning Commission and Caraquet (Town)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Campbellton

Deschênes, J.

April 20, 1983.

Summary:

Résumé:

A fish processing plant operated on property zoned for industrial purposes. The municipality subsequently re-zoned the property, resulting in the plant's use becoming nonconforming. The owner of the plant applied to the District Planning Commission for a variance and a building permit to allow construction of an addition to the plant, which was needed to comply with, inter alia, new Regulations. The District Planning Commission dismissed the application. The owner appealed to the Provincial Planning Appeal Board.

The Provincial Planning Appeal Board allowed the appeal on the ground that the Commission misapplied provisions of the Community Planning Act. The Planning Commission and the municipality applied to quash the Board's decision.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application, because the Board acted within the scope of its powers.

Administrative Law - Topic 1006

Classification of power or function - General principles - Determination of - Method - The New Brunswick Court of Queen's Bench, Trial Division, discussed the method of determining whether a function exercised (or an act performed) is "administrative" or "judicial" - See paragraphs 11 to 13.

Administrative Law - Topic 1221

Classification of power or function - Powers or functions classified as quasi-judicial - Appeal Board - Planning appeals - The New Brunswick Court of Queen's Bench, Trial Division, held that the Provincial Planning Appeal Board, established under the Community Planning Act, performed "quasi-judicial" acts, in exercising its function as a Planning Appeal tribunal - See paragraph 17.

Administrative Law - Topic 3204

Judicial review - General - Agencies or tribunals subject to review - The New Brunswick Court of Queen's Bench, Trial Division, held that judicial review was available against the Provincial Planning Appeal Board (acting as a Planning Appeal tribunal) - The court held that the scope of the review was only to determine if the acts performed were in good faith and within the Board's powers under the Community Planning Act - See paragraphs 17 to 18.

Administrative Law - Topic 5045

Judicial review - Certiorari - Tribunals subject to certiorari - Requirement that order issue against a body performing judicial functions - The New Brunswick Court of Queen's Bench, Trial Division, held that the decisions of statutory boards and tribunals exercising "administrative" and not "judicial" or "quasi-judicial" functions were not open to judicial review on certiorari - See paragraph 11.

Administrative Law - Topic 9103

Boards and tribunals - Judicial review - Scope of review - A town enacted a zoning bylaw which caused the applicant's use of its property to be nonconforming - The Planning Commission dismissed an application for a variance and for a building permit - An appeal was allowed by the Provincial Planning Appeal Board because the Board held that the Commission misapplied provisions of the Community Planning Act - The New Brunswick Court of Queen's Bench, Trial Division, refused to reverse the Board's decision, because the Board acted within the powers conferred on it by s. 87(1) of the Community Planning Act - See paragraphs 21 to 28.

Land Regulations - Topic 2805

Land use control - Exemptions - Nonconforming use - Exceptions - A building was used for fish processing, which was a nonconforming use - The owners applied for a variance and for a building permit to construct additions, to conform with the new Fish Processing Act, new federal Regulations and recommendations of the Research and Productivity Council - S. 40(5) of the Community Planning Act prohibited, except as required by statute, bylaw or regulation, additions to a building containing a nonconforming use - The New Brunswick Court of Queen's Bench, Trial Division, affirmed that the proposed renovations were allowed under the exception to s. 40(5) - See paragraphs 21 to 28.

Cases Noticed:

Miramichi Planning District Appeal Board v. Walsh and Walsh (1982), 40 N.B.R.(2d) 685; 105 A.P.R. 685, consd. [para. 6].

Re Village of Quispamsis (1976), 15 N.B.R.(2d) 145; 18 A.P.R. 145, consd. [para. 8].

Re Village of Quispamsis and Terris (1981), 33 N.B.R.(2d) 648; 80 A.P.R. 648, consd. [para. 9].

McKinnon v. A.G. of Canada (1975), 11 N.B.R.(2d) 119; 7 A.P.R. 119, refd to. [para. 11].

R. v. Barry (1922), 70 D.L.R. 193, refd to. [para. 11].

Re Ashby, [1934] 3 D.L.R. 565, refd to. [para. 15].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses Association (1974), 41 D.L.R.(3d) 11, refd to. [para. 19].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 40(5) [paras. 24 to 25]; sect. 87(1) [paras. 27 to 28].

Authors and Works Noticed:

Reid, Administrative Law and Practice, pp. 121-123 [para. 12]; 127 [para. 13].

Counsel:

Aldéa Landry, for the applicant;

Terrance P. Lenihan, for the respondent.

This application was heard before Deschênes, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Campbellton, on February 1, 1983. The decision of Deschênes, J., was delivered on April 20, 1983.