Mountain Ash Court Property Owners Association et al. v. Dartmouth (City) et al., (1993) 127 N.S.R.(2d) 139 (SC)

• Judge: Nathanson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 15, 1993
• Jurisdiction: Nova Scotia
• Citations: (1993), 127 N.S.R.(2d) 139 (SC)

Mountain Ash v. Dartmouth (1993), 127 N.S.R.(2d) 139 (SC);

  355 A.P.R. 139

MLB headnote and full text

Mountain Ash Court Property Owners Association, a non-profit organization duly incorporated pursuant to the Societies Act, R.S.N.S. 1989, c. 435 and Al Moore; Wilfred and Olive 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 being residents of Mountain Ash Court in the City of Dartmouth, Province of Nova Scotia and being members of Mountain Ash Court Property Owners Association (applicants) v. The City of Dartmouth, being an incorporated City within the Province of Nova Scotia pursuant to City Charter and Glenn L'Esperance, Development Officer for the City of Dartmouth and Barry Ducolon and Gerald E. Burton, businessmen of the City of Dartmouth (respondents)

(S.H. No. 93-5303)

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

Nova Scotia Supreme Court

Nathanson, J.

December 2, 1993.

Summary:

The Development Officer of the City of Dartmouth issued development permits under General Provision 19(b) of the Dartmouth Land Use Bylaw for Lots 141 and 142 of Eastmount Subdivision. Residents of that neighbourhood sought (1) certiorari to quash the decision; (2) a mandatory injunction to direct the lot owners to cease further con­struction activity and to demolish and remove any structure already erected on the lots; and (3) prohibition to direct the City not to develop lots 141 to 149 until they were reconfigured into lots of the minimum street frontage required by the Dartmouth Land Use Bylaw.

The Nova Scotia Supreme Court granted certiorari and the mandatory injunction, but declined to issue an order of prohibition.

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 issued development permits for two adjacent undersize lots - The lots were not separ­ated by any physical structure and there were no buildings on the lots to the south of them - The Nova Scotia Supreme Court held that the Development Officer's inter­pretation of General Provision 19(b) was patently unreasonable, where the lots could not be increased to the required size, but not by reason of adjacent buildings or other physical impediments.

Municipal Law - Topic 3728

Bylaws - Construction or interpretation - Ordinary meaning of words - General Provision 19(b) of the Dartmouth Land Use Bylaw provided that where a lot for which a development permit was requested did not comply with the provisions of 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 Nova Scotia Supreme Court considered the plain mean­ing of the words "physical" and "impedi­ments" and held that, together, they referred to material hindrances, obstruc­tions or obstacles, which were like build­ings - See paragraph 18.

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 Development Officer of the City of Dartmouth issued development permits for two undersized lots - Neigh­bouring residents applied for, inter alia, certiorari to quash the Development Offi­cer's decision - The Nova Scotia Supreme Court held that the applicants had standing to apply, where the cause of action was justiciable, a serious issue was raised, the applicants were directly affected and had a genuine interest and there was no other reasonable and effective way to bring the issue before the courts - See paragraphs 7 to 16.

Words and Phrases

Physical impediments - The Nova Scotia Supreme Court discussed the meaning of these words in the context of a municipal land use bylaw - See paragraph 18.

Cases Noticed:

Orpen v. Roberts et al., [1925] S.C.R. 364, refd to. [para. 7].

Howarth v. Canadian Red Cross Society et al., [1943] 2 W.W.R. 692 (Alta. T.D.), refd to. [para. 7].

Singer v. Town N' Country Holding Co. (1966), 56 D.L.R.(2d) 339 (Man. Q.B.), refd to. [para. 7].

Association des Propriétaires des Jardins Taché Inc. et al. v. Entreprises Daskin Inc. et al., [1974] S.C.R. 2; 26 D.L.R.(3d) 79, refd to. [para. 7].

Thorson v. Canada (Attorney General) et al., [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 8].

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, refd to. [para. 8].

Borowski v. Minister of Justice of Canada et al., [1981] 2 S.C.R. 575; 39 N.R. 331; 130 D.L.R.(3d) 588; [1982] 1 W.W.R. 97; 24 C.P.C. 62; 24 C.R.(3d) 352; 12 Sask.R. 420; 64 C.C.C.(2d) 97, refd to. [para. 8].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 331; 33 D.L.R.(4th) 321, refd to. [para. 8].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 8].

Coalition of Citizens for a Charter Chal­lenge v. Metropolitan Authority et al. (1993), 122 N.S.R.(2d) 1; 338 A.P.R. 1 (S.C.), appld. [para. 9].

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. 10].

R. v. Vancouver (City) Zoning Board of Appeal et al. (1966), 60 D.L.R.(2d) 331 (B.C.C.A.), refd to. [para. 12].

Lord Nelson Hotel Ltd. v. Halifax (City) (1972), 4 N.S.R.(2d) 753; 33 D.L.R.(3d) 98 (C.A.), refd to. [para. 14].

Beaton and Beaton v. Prince Edward Island Land Use Commission et al. (1979), 20 Nfld. & P.E.I.R. 140; 53 A.P.R. 140; 101 D.L.R.(3d) 404 (P.E.I.C.A.), refd to. [para. 14].

Oley and Moffat v. Fredericton (City) (1983), 50 N.B.R.(2d) 157; 131 A.P.R. 157; 2 D.L.R.(4th) 42 (T.D.), refd to. [para. 14].

Birks v. Chester (Municipality) (1986), 75 N.S.R.(2d) 75; 186 A.P.R. 75 (T.D.), refd to. [para. 14].

Statutes Noticed:

Dartmouth (City) Bylaws, Land Use Bylaw, General Provision 18 [para. 24]; General Provision 19(b) [para. 5].

Planning Act, R.S.N.S. 1989, c. 346, sect. 70, sect. 78, sect. 79 [para. 15]; sect. 83(1), sect. 83(2), sect. 84(1), sect. 85(5) [para. 22]; sect. 85 [para. 15]; sect. 87(1) [para. 14].

Authors and Works Noticed:

Jones and deVillars, Principles of Admin­istrative Law (1985), p. 369 [para. 7].

Counsel:

Peter A. McInroy, for the applicants;

Michael H. Moreash, for the respondents, Dartmouth (City) and Glen L'Esperance;

Tim Hill, for the respondents, Barry Ducolon and Gerald E. Burton.

This case was heard on November 15, 1993, at Halifax, Nova Scotia, before Nathanson, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 2, 1993.