McLaine (Eric D.) Construction Ltd. et al. v. Southport (Community), (1990) 82 Nfld. & P.E.I.R. 158 (PEITD)

• Case Date: March 29, 1990
• Jurisdiction: Prince Edward Island
• Citations: (1990), 82 Nfld. & P.E.I.R. 158 (PEITD)

McLaine v. Southport (1990), 82 Nfld. & P.E.I.R. 158 (PEITD);

    257 A.P.R. 158

MLB headnote and full text

Eric D. McLaine Construction Ltd., Zakems Limited, Joseph Zakem and Frank Zakem (plaintiffs) v. Community of Southport Inc. (defendant)

(No. GSC-8893)

Indexed As: McLaine (Eric D.) Construction Ltd. et al. v. Southport (Community)

Prince Edward Island Supreme Court

Trial Division

MacDonald, C.J.

March 30, 1990.

Summary:

McLaine applied for a building permit which was denied. McLaine applied for judicial review. The municipality applied to dismiss McLaine's application because of the availability of a statutory appeal.

The Prince Edward Island Supreme Court dismissed the municipality's application.

Administrative Law - Topic 5019.1

Judicial review - Certiorari - Grounds - Error of law, general - The Prince Edward Island Supreme Court, Trial Division, stated that no longer is judicial interference only permissible where error of law is on the face of the record - The court stated that judicial review may be granted where there is error of law, whether or not a record of the tribunal discloses an error (see paragraph 15).

Administrative Law - Topic 5019.1

Judicial review - Certiorari - Grounds - Error of law - [See Administrative Law - Topic 5192].

Administrative Law - Topic 5189

Judicial review - Certiorari - Discretionary bar, existence of alternate remedy - Procedure - The Prince Edward Island Supreme Court referred to the proper procedure when judicial review is sought and a statutory appeal is available (see paragraph 11).

Administrative Law - Topic 5192

Judicial review - Certiorari - Discretionary bars - Existence of another remedy, adequacy of - A municipality refused an application by McLaine for a building permit - Although a statutory appeal was available, McLaine applied for judicial review - The Prince Edward Island Supreme Court, Trial Division, held that judicial review was available to McLaine because it was the most adequate remedy to dispose of a question of law (see paragraphs 14 and 15).

Cases Noticed:

Woodglen & Co. Ltd. and City of North York et al., Re (1983), 149 D.L.R.(3d) 186 (Ont. Div. Ct.), dist. [para. 3].

Williams and Board of Directors of Kemptville District Hospital, Re (1986), 29 D.L.R.(4th) 629, dist. [para. 5].

Harelkin v. University of Regina (1979), 26 N.R. 364; 96 D.L.R.(3d) 14 (S.C.C.), refd to. [para. 7].

Sterzik and Calgary Police Association v. Beattie, Calgary Chief Police Constable and Calgary Police Service (1985), 62 A.R. 390; 39 Alta. L.R.(2d) 375, refd to. [para. 12].

Sahota v. Minister of Employment and Immigration et al. (1985), 21 Admin. L.R. 95 (F.C.T.D.), refd to. [para. 13].

Statutes Noticed:

Judicial Review Act, R.S.P.E.I. 1988, c. J-3, sect. 4(2) [para. 9].

Planning Act, R.S.P.E.I. 1988, c. P8, sect. 28 [para. 1].

Authors and Works Noticed:

Jones and de Villars, Principles of Administrative Law (1985), p. 354 [para. 18].

Counsel:

David W. Hooley and Karen Campbell, for the plaintiffs;

John K. Mitchell, for the defendant.

This application was heard by MacDonald, C.J., of the Trial Division of the Prince Edward Island Supreme Court, on March 29, 1990. The decision of MacDonald, C.J., was delivered on March 30, 1990.