Mountain Ash Court Property Owners Association et al. v. Dartmouth (City) et al., (1994) 132 N.S.R.(2d) 74 (CA)

• Judge: Clarke, C.J.N.S., Matthews and Chipman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 12, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 132 N.S.R.(2d) 74 (CA)

Mountain Ash v. Dartmouth (1994), 132 N.S.R.(2d) 74 (CA);

  376 A.P.R. 74

MLB headnote and full text

Barry Ducolon and Gerald E. Burton (appellants) v. Mountain Ash Court Property Owners Association, Al Moore, Wilfred and Oliver Jackson, John MacInnes, Tim and Rosemary Dunne, Faye and Glenn Murphy, Tom and Audrey Goodyear, Fred Dixon, Mary Helen and Daniel Murray, Gloria Mercer, Wilson Suen, Susan D. Roseveare, Kenneth and Joyce Jones, Jim Bauld and Lorna Randall, Brian and Sandra Hastings, Darrell Misener, Tom and Barbara Merriam, Daniel and Diane Khoury and Scott Watson (respondents)

(C.A. No. 02968)

Indexed As: Mountain Ash Court Property Owners Association et al. v. Dartmouth (City) et al.

Nova Scotia Court of Appeal

Clarke, C.J.N.S., Matthews and Chipman, JJ.A.

May 18, 1994.

Summary:

The Development Officer of the City of Dartmouth issued development permits to two parties (Ducolon and Burton) to con­struct single family dwellings on two lots on Mountain Ash Court. Residents of the neighbourhood, the Mountain Ash Court Property Owners Association, sought, inter alia, certiorari to quash the decision and a mandatory injunction directing Ducolon and Burton to cease further construction activity and to demolish and remove any structure already erected on the lots.

The Nova Scotia Supreme Court, in a decision reported 127 N.S.R.(2d) 139; 355 A.P.R. 139, granted certiorari and the man­datory injunction. Ducolon and Burton appealed.

The Nova Scotia Court of Appeal dis­missed the appeal.

Land Regulation - Topic 3204

Land use control - Building or develop­ment permits - Issue of - Validity of - General Provision 19(b) of the Dartmouth Land Use Bylaw provided that where a lot does not comply with the bylaw "the development officer shall grant a develop­ment permit if ... the lot cannot, by reason of adjacent buildings or other phy­sical impediments, be increased to the required size" - The development officer, relying on s. 19(b), issued development permits for two adjacent undersize lots which could not be enlarged because the lots were abutted by lands owned by other persons - The Nova Scotia Supreme Court quashed the development officer's decision, holding that his interpretation of s. 19(b) was patently unreasonable - The Nova Scotia Court of Appeal affirmed the trial decision.

Practice - Topic 220

Persons who can sue and be sued - Indi­viduals and corporations, status or standing - Respecting validity of administrative action taken by government officials or public body - The City of Dartmouth development officer issued development permits to Ducolon and Burton to con­struct single family dwellings on two lots - Neighbourhood property owners were granted certiorari to quash the decision and obtained a mandatory injunction directing Ducolon and Burton to cease further con­struction activity and to demolish and remove any structure already erected on the lots - Ducolon and Burton appealed, arguing that the neighbourhood residents lacked standing to pursue the applications - The Nova Scotia Court of Appeal affirmed that the neighbourhood residents had standing - See paragraphs 30 to 35.

Cases Noticed:

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; 96 D.L.R.(3d) 14, refd to. [para. 27].

Orpen v. Roberts, [1925] S.C.R. 364, refd to. [para. 30].

Howarth v. Canadian Red Cross Society, [1943] 2 W.W.R. 692 (Alta. T.D.), refd to. [para. 30].

Singer v. Town N' Country Holding Co. (1966), 56 D.L.R.(2d) 339 (Man. Q.B.), refd to. [para. 30].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 30].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85; 55 D.L.R.(3d) 632; 32 C.R.N.S. 376, refd to. [para. 30].

Borowski v. Canada (Minister of Justice and Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; [1982] 1 W.W.R. 97; 24 C.R.(3d) 352; 24 C.P.C. 62; 64 C.C.C.(2d) 97; 130 D.L.R.(3d) 588, refd to. [para. 30].

Coalition of Citizens for a Charter Chal­lenge v. Metropolitan Authority et al. (1993), 125 N.S.R.(2d) 241; 349 A.P.R. 241 (C.A.), refd to. [para. 31].

Canadian Abortion Rights Action League Inc. et al. v. Nova Scotia (Attorney General) (1990), 96 N.S.R.(2d) 284; 253 A.P.R. 284 (C.A.), refd to. [para. 32].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193; 14 C.R.(3d) 22, refd to. [para. 44].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 40 C.C.C.(3d) 1; 62 C.R.(3d) 313; [1988] 3 W.W.R. 193, refd to. [para. 44].

Statutes Noticed:

Dartmouth (City) Bylaws, Dartmouth Land Use Bylaw, Bylaw C-357, sect. 19(b) [para. 36].

Counsel:

Tim Hill, for the appellants;

Tim Dunne and Jim Bauld, on their own behalf.

This appeal was heard in Halifax, Nova Scotia, on May 12, 1994, before Clarke, C.J.N.S., Matthews and Chipman, JJ.A., of the Nova Scotia Court of Appeal. On May 18, 1994, Matthews, J.A., delivered the following judgment for the Court of Appeal.