Midtown Tavern & Grill Ltd. v. Nova Scotia (Utility and Review Board),

• Jurisdiction: Nova Scotia
• Judge: MacDonald, C.J.N.S., Freeman and Cromwell, JJ.A.
• Neutral Citation: 2006 NSCA 115
• Citation: 2006 NSCA 115,(2006), 248 N.S.R.(2d) 319 (CA),[2006] NSJ No 418 (QL),248 NSR (2d) 319,248 NSR(2d) 319,[2006] NS.J. No 418 (QL),(2006), 248 NSR(2d) 319 (CA),248 N.S.R.(2d) 319
• Date: 24 October 2006
• Court: Court of Appeal of Nova Scotia (Canada)

Midtown Tavern v. N.S. Utility (2006), 248 N.S.R.(2d) 319 (CA);

    789 A.P.R. 319

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. OC.046

Midtown Tavern & Grill Limited (appellant) v. Nova Scotia Utility and Review Board, Heritage Trust of Nova Scotia, Paul and Joyce McCulloch, Peninsula South Community Association, Federation of Nova Scotian Heritage and Halifax Regional Municipality (respondents)

(CA 257605; 2006 NSCA 115)

Indexed As: Midtown Tavern & Grill Ltd. v. Nova Scotia Utility and Review Board et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Freeman and Cromwell, JJ.A.

October 24, 2006.

Summary:

A developer wished to demolish a tavern two blocks from Citadel Hill and replace it with a 17 storey hotel and shopping complex. Zoning bylaws reflecting the city's municipal planning strategy (MPS) prohibited the building because of height restrictions, unless approved by the Halifax Regional Municipality (HRM) by way of a development agreement. Following public debate, the HRM, without stated reasons, approved the project. Opponents of the project appealed to the Nova Scotia Utility and Review Board, which had a mandate to set aside such decisions if they did not reasonably carry out the intent of the MPS. The Board ruled in the opponents' favour, setting aside the project approval decision. The developer appealed.

The Nova Scotia Court of Appeal dismissed the appeal on the ground that the Board committed no reviewable error. The Board gave appropriate deference to the HRM's interpretation of the MPS and was correct in finding that "simply put, the height of the proposed structure is not reasonably consistent with the MPS" in light of its proximity to Citadel Hill.

Editor's Note: Note that Freeman, J.A., having ceased to hold office prior to judgment being delivered, did not participate in the judgment.

Land Regulation - Topic 2618

Land use control - Zoning bylaws - Enactment and interpretation - Planning strategy approval - [See Land Regulation - Topic 2649 ].

Land Regulation - Topic 2649

Land use control - Zoning bylaws - Building restrictions - Height restrictions - A developer wished to demolish a tavern two blocks from Citadel Hill and replace it with a 17 storey hotel and shopping complex - Zoning bylaws reflecting the city's municipal planning strategy (MPS) prohibited the project because of height restrictions, unless approved by the Halifax Regional Municipality (HRM) by way of a development agreement - Following public debate, the HRM, without stated reasons (none required), approved the project - Opponents of the project appealed to the Nova Scotia Utility and Review Board, which had a mandate to set aside such decisions if they did not reasonably carry out the intent of the MPS - After a full hearing, the Board ruled in the opponent's favour, setting aside the project approval decision - The developer appealed - The Nova Scotia Court of Appeal dismissed the appeal on the ground that the Board committed no reviewable error - The standard of review of the Board's decision was correctness - The standard of review by the Board of Council's decision was dictated by its statutory mandate to set aside a decision that did not reasonably carry out the intent of the MPS (i.e. no pragmatic and functional analysis required) - The Board gave appropriate deference to the HRM's interpretation of the MPS, did not substitute its interpretation of the MPS for that of the HRM, and was correct in finding that "simply put, the height of the proposed structure is not reasonably consistent with the MPS" in light of its proximity to Citadel Hill.

Land Regulation - Topic 4122

Land use control - Statutory appeals - Judicial review (incl. standard of) - [See Land Regulation - Topic 2649 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - [See Land Regulation - Topic 2649 ].

Public Utilities - Topic 4741

Public utility commissions or corporations (incl. private providers) - Judicial review - General (incl. standard of review) - [See Land Regulation - Topic 2649 ].

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 19].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 20].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 21].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 26].

Canada Post Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2004), 222 N.S.R.(2d) 191; 701 A.P.R. 191; 2004 NSCA 40, refd to. [para. 27].

Antigonish (County) v. Antigonish (Town) (2006), 241 N.S.R.(2d) 332; 767 A.P.R. 332; 2006 NSCA 29, refd to. [para. 31].

Granite Environmental Inc. v. Labour Relations Board (N.S.) et al. (2005), 238 N.S.R.(2d) 59; 757 A.P.R. 59; 2005 NSCA 141, refd to. [para. 42].

New Brunswick (Board of Management) v. Doucet-Jones (2004), 274 N.B.R.(2d) 237; 718 A.P.R. 237; 2004 NBCA 65, refd to. [para. 43].

R. v. Owen (T.), [2003] 1 S.C.R. 779; 304 N.R. 254; 173 O.A.C. 285; 2003 SCC 33, refd to. [para. 44].

Tsimiklis v. Nova Scotia Utility and Review Board et al. (2003), 213 N.S.R.(2d) 30; 667 A.P.R. 30; 2003 NSCA 30, refd to. [para. 47].

Knyock v. Bennett et al. (1994), 131 N.S.R.(2d) 334; 371 A.P.R. 334 (C.A.), refd to. [para. 48].

Mahone Bay Heritage and Cultural Society v. 3012543 Nova Scotia Ltd. et al. (2000), 186 N.S.R.(2d) 201; 581 A.P.R. 201; 2000 NSCA 93, refd to. [para. 49].

Heritage Trust of Nova Scotia et al. v. Nova Scotia Utility and Review Board et al. (1994), 128 N.S.R.(2d) 5; 359 A.P.R. 5 (C.A.), refd to. [para. 53].

Statutes Noticed:

Municipal Government Act, S.N.S. 1998, c. 18, sect. 190 [para. 34]; sect. 214(1)(n), sect. 214(1)(o), sect. 214(2) [para. 60]; sect. 251(2) [para. 35].

Utility and Review Board Act, S.N.S. 1992, c. 11, sect. 26 [para. 30]; sect. 30(1) [para. 29].

Counsel:

Robert G. Grant, Q.C., for the appellant;

Ronald A. Pink, Q.C., and Gordon Forsyth, for the respondents, Heritage Trust of Nova Scotia, Paul and Joyce McCulloch, Peninsula South Community Association and Federation of Nova Scotia Heritage;

Karen L. Brown, for the respondent, Halifax Regional Municipality.

This appeal was heard in Halifax, N.S., on May 24, 2006, before MacDonald, C.J.N.S., Freeman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On October 24, 2006, MacDonald, C.J.N.S., delivered the following judgment for the Court of Appeal.