Matheson et al. v. Nelson et al., (1999) 178 N.S.R.(2d) 18 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 26, 1999
• Jurisdiction: Nova Scotia
• Citations: (1999), 178 N.S.R.(2d) 18 (SC)

Matheson v. Nelson (1999), 178 N.S.R.(2d) 18 (SC);

    549 A.P.R. 18

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. MY.005

Terry Matheson and Gregory S. Marshall, both residents of the Town of Truro, Nova Scotia (applicants) v. Peter Nelson, Development Officer for the Town of Truro and the Town of Truro, a duly incorporated Town pursuant to the Towns Act of the Province of Nova Scotia and Benchmark Developments Ltd., a body corporate duly incorporated pursuant to the Companies Act of Nova Scotia (respondents)

(S.T. No. 08130)

Indexed As: Matheson et al. v. Nelson et al.

Nova Scotia Supreme Court

MacAdam, J.

March 26, 1999.

Summary:

Benchmark obtained two development permits to renovate a property. The appli­cants applied for certiorari, a declaration that the proposed development was a nullity and a mandatory injunction requiring Benchmark to cease working on the property.

The Nova Scotia Supreme Court dismissed the application.

Administrative Law - Topic 4563

Judicial review - Declaratory action - Bars - Delay - Benchmark obtained de­velop­ment permits on April 27, 1998 and July 7, 1998, to renovate a property - On January 6, 1999, the applicants applied for, inter alia, a declaration that the proposed devel­opment was a nullity and a manda­tory injunction requiring Benchmark to cease the development - The applicants had been aware of the planned renovations in the summer of 1998 and perhaps as early as March 1998 - Benchmark had proceeded with the renovations - The Nova Scotia Supreme Court held that the doctrine of laches applied where there was unreason­able delay in bringing the appli­cation - See paragraphs 22 to 30.

Administrative Law - Topic 5261

Judicial review - Certiorari - Limitation period - Benchmark obtained a develop­ment permit on April 27, 1998 (the first permit), to renovate a property - On July 7, 1998, Benchmark obtained a second permit for renovations to another part of the property - On September 2, 1998, Benchmark obtained an amendment to the first permit - On January 6, 1999, the applicants applied for certiorari to quash the issuance of the permits - An issue arose as to whether the application was barred by the six month limitation period (Civil Procedure Rule 56.06) - The Nova Scotia Supreme Court rejected the appli­cant's argument that the first and second permit could be treated as one, because the renovations were for different tenants - However, the court held that by amending the first permit, time began to run at the date of the amendment - Therefore, the application was within the time limit for both permits - See paragraphs 14 to 21.

Administrative Law - Topic 5408

Judicial review - Certiorari - Practice - Application - Time for - [See Adminis­trative Law - Topic 5261 ].

Equity - Topic 2065.1

Equitable defences - Laches - Application to set aside development permit - [See Administrative Law - Topic 4563 ].

Injunctions - Topic 746

Granting an injunction - Bars - Delay or acquiescence - [See Administrative Law -Topic 4563 ].

Injunctions - Topic 2314

Mandatory injunctions - Bars - Delay - [See Administrative Law - Topic 4563 ].

Land Regulation - Topic 3239

Land use control - Building or develop­ment permits - Judicial review - Bench­mark obtained two development permits to renovate a property - The applicants applied for, inter alia, certiorari to quash the issuance of the permits - The Nova Scotia Supreme Court noted that "the decisions of the development officer in issuing the two permits, even absent a privative clause, are entitled to curial deference, and the decisions are to be reviewed, in these circumstances, on basis of whether they are patently unreasonable, so as to be clearly wrong and incapable of being rationally supported." - See para­graph 40.

Land Regulation - Topic 3239

Land use control - Building or develop­ment permits - Judicial review - Bench­mark obtained a development permit to renovate a building to create a bowling centre and a lounge - The permit was subsequently amended to install a golf machine and increase the size of the lounge - Benchmark obtained a second permit to make further renovations to other parts of the building - The building was formerly zoned as commercial and occupied by various government depart­ments and the Emergency Measures Or­ganization - The applicants applied for Certiorari to quash the issuance of the permits - The applicants argued that the change in use of the building represented a new commercial use and as a result Benchmark was required to proceed by a development agreement - The develop­ment officer rejected this position - The Nova Scotia Supreme Court refused to quash the development officer's decision where it was not patently unreasonable - See para­graphs 41 to 46.

Cases Noticed:

Waverley (Village Commissioners) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1993), 123 N.S.R.(2d) 46; 352 A.P.R. 46 (S.C.), refd to. [para. 9].

MacHattie v. Veterinary Medical Associ­ation (N.S.) (1991), 107 N.S.R.(2d) 361; 290 A.P.R. 361 (T.D.), refd to. [para. 15].

Shephard v. Colchester Regional Hospital Commission (1994), 131 N.S.R.(2d) 129; 371 A.P.R. 129 (S.C.), refd to. [para. 16].

Morash v. Morash (1988), 85 N.S.R.(2d) 1; 216 A.P.R. 1 (T.D.), refd to. [para. 27].

Mountain Ash Court Property Owners Association et al. v. Dartmouth (City) et al. (1993), 127 N.S.R.(2d) 139; 355 A.P.R. 139 (S.C.), refd to. [para. 31].

Can-Euro Investments Ltd. v. Dartmouth (City) (1995), 146 N.S.R.(2d) 58; 422 A.P.R. 58 (S.C.), refd to. [para. 32].

Canada (Procureur général) v. Alliance de la Fonction publique du Canada, [1991] 1 S.C.R. 614; 123 N.R. 161; 80 D.L.R.(4th) 520; 91 C.L.L.C. 14, 017; 48 Admin. L.R. 161, refd to. [para. 33].

Public Service Alliance of Canada v. Canada (Attorney General) and Econo­sult Inc. - see Canada (Procureur général) v. Alliance de la Fonction publique du Canada.

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140; 102 D.L.R.(4th) 402, refd to. [para. 34].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 36].

Superintendent of Brokers v. Pezim - see Pezim v. British Columbia Securites Commission et al.

Paccar of Canada Ltd. v. Canadian Asso­ciation of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437; 89 C.L.L.C. 14,050; [1989] 6 W.W.R. 673; 40 Admin. L.R. 181, refd to. [para. 38].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1; 121 D.L.R.(4th) 385; 27 Admin. L.R.(2d) 1; 95 C.L.L.C. 210-009, refd to. [para. 38].

Goldhawk and A.C.T.R.A. v. Canadian Broadcasting Corp.

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 56.06 [para. 14].

Authors and Works Noticed:

New, Graeme, The Law of Limitations, pp. 23 to 25 [para. 22].

Sharpe, Robert J., Injunctions and Specific Performance (Looseleaf Ed.), para. 1-36 [para. 26].

Counsel:

Peter A. McInroy, for the applicants;

Peter M. Rogers, for the respondents, Peter Nelson and the Town of Truro;

Peter Bryson, for the respondent, Bench­mark Developments Ltd.

This application was heard in chambers at Truro, Nova Scotia, on March 26, 1999, by MacAdam, J., of the Nova Scotia Supreme Court, who delivered judgment on March 26, 1999, and released the following written decision on May 5, 1999.