North End Community Health Association et al. v. Halifax (Regional Municipality), (2012) 321 N.S.R.(2d) 162 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 24, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 321 N.S.R.(2d) 162 (SC);2012 NSSC 330

North End Com. Health v. Halifax (2012), 321 N.S.R.(2d) 162 (SC);

    1018 A.P.R. 162

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. SE.052

The North End Community Health Association, The Richard Preston Centre for Excellence Society and The MicMac Native Friendship Society (applicants) v. Halifax Regional Municipality (respondent) and Jono Developments Ltd. (intervenor)

(Hfx. No. 376190; 2012 NSSC 330)

Indexed As: North End Community Health Association et al. v. Halifax (Regional Municipality)

Nova Scotia Supreme Court

MacAdam, J.

September 24, 2012.

Summary:

A regional municipality (RM) sought proposals to purchase three surplus school properties. Several community service organizations submitted proposals to acquire the properties to provide programs and services to area community members. The RM accepted a private developer's proposal to purchase the property for $3 Million. The developer had indicated a willingness to pay up to $4 Million if there were competing bids. The community service organizations sought judicial review of the RM's decision on the ground that the RM failed to follow its own process for selling surplus property (Disposal Procedure), which provided that if a community organization was interested in purchasing a surplus property, the property could be sold to private developers only if the organization's proposal was unacceptable. The organizations applied under rule 7.28 to stay the sale to the private developer sale pending the hearing of the judicial review application.

The Nova Scotia Supreme Court, in a judgment reported (2012), 314 N.S.R.(2d) 1; 994 A.P.R. 1, granted a stay pending the judicial review hearing.

The Nova Scotia Supreme Court allowed the application and quashed the RM's decision. The RM breached its duty of fairness to the CSOs by not following its own Disposal Procedure. Further, the RM's Charter required it to sell at market value. Applying the reasonableness standard of review to the issue of "market value", the market value was $4 Million and the RM's acceptance of $3 Million was contrary to its Charter.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - A regional municipality (RM) proposed to sell surplus school property - The property was appraised at between $1 Million (as is) and $4.3 Million (redeveloped) - Several community service organizations (CSOs) submitted proposals to acquire the property to provide programs and services to area community members - The RM accepted a private developer's proposal to purchase the property for $3 Million, with that offer going up to $4 Million if there were competing bids over $3 Million - The CSOs sought judicial review of the RM's decision on the ground that the RM failed to follow its own process for selling surplus property (Disposal Procedure), which provided that if a CSO was interested in purchasing a surplus property, the property could be sold to private developers only if the CSO's proposal was unacceptable - The CSOs also argued that the RM's Charter precluded it from selling to the developer at less than market value - The RM argued that it owed the CSOs only a minimal level of procedural fairness and that it was not bound by its own Disposal Procedure - The Nova Scotia Supreme Court quashed the resolution approving the sale - The CSOs had a legitimate expectation that the RM would follow its own Disposal Procedure, notwithstanding that the CSOs had no knowledge of the procedure before the sale (i.e., no reliance) and the fact that the RM had ignored the Disposal Procedure in past sales - The RM owed a duty to the CSOs to act in good faith and observe its own Disposal Procedure - The RM breached its duty of fairness by not following its own Disposal Procedure - Further, the RM sold the property for below market value, which rendered the sale illegal under its Charter - By the developer's own offer indicating a willingness to pay $4 Million, market value was $4 Million and the RM's position that $3 Million was market value was unreasonable.

Municipal Law - Topic 420

Councils - Resolutions - Judicial review (incl. standard of review) - A municipal council passed a resolution accepting a developer's offer to purchase surplus public property (school) - Community organizations who unsuccessfully bid to purchase the property sought judicial review on the grounds that the municipality failed to comply with its own sale procedure and sold for less than market value - The municipality's Charter empowered it to sell surplus property, but not for less than "market value" - The Nova Scotia Supreme Court stated that what constituted "market value" was subject to the reasonableness standard of review - The correctness standard of review applied only to the municipality's interpretation of the scope of its power to sell the property under its Charter - See paragraphs 56 to 71.

Municipal Law - Topic 428

Councils - Decisions of - Duty of fairness - [See Administrative Law - Topic 2267 ].

Municipal Law - Topic 1424

Powers of municipalities - Respecting land - Sale or disposition of - [See Administrative Law - Topic 2267 ].

Municipal Law - Topic 1601

Powers of municipalities - Exercise of powers - Natural justice - Duty of fairness - When required - [See Administrative Law - Topic 2267 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 18].

Mavi et al. v. Canada (Attorney General) et al. (2011), 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 18].

Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141 (2010), 289 N.S.R.(2d) 351; 916 A.P.R. 351; 2010 NSCA 19, refd to. [para. 19].

T.G. v. Nova Scotia (Minister of Community Services) et al. (2012), 316 N.S.R.(2d) 202; 1002 A.P.R. 202; 2012 NSCA 43, refd to. [para. 19].

Kelly v. Police Commission (N.S.) (2006), 241 N.S.R.(2d) 300; 767 A.P.R. 300; 2006 NSCA 27, refd to. [para. 19].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 21].

Heritage Trust of Nova Scotia v. Halifax (Regional Municipality) (2007), 252 N.S.R.(2d) 114; 804 A.P.R. 114; 2007 NSSC 28, refd to. [para. 29].

Hong Kong (Attorney General) v. Ng Yuen Shiu, [1983] 2 A.C. 629 (P.C.), refd to. [para. 31].

Czerwinski v. Mulaner (2007), 443 A.R. 125; 2007 ABQB 536, refd to. [para. 33].

Sunshine Coast Parents for French v. Sunshine Coast School District No. 46 (1990), 46 B.C.L.R.(2d) 252; 1990 CarswellBC 213 (S.C.), refd to. [para. 34].

Furey et al. v. Board of Education (Roman Catholic) of Conception Bay Centre et al. (1993), 108 Nfld. & P.E.I.R. 328; 339 A.P.R. 328; 104 D.L.R.(4th) 455 (Nfld. C.A.), refd to. [para. 34].

Attaran v. University of British Columbia (1998), 4 Admin. L.R.(3d) 44 (B.C.S.C.), refd to. [para. 34].

Humber Heights of Etobicoke Ratepayers Inc. v. Board of Education of Toronto District (2003), 171 O.A.C. 21 (C.A.), refd to. [para. 34].

Allard Contractors Ltd. v. Coquitlam (District) (1983), 3 Admin. L.R. 122 (B.C.S.C.), refd to. [para. 45].

Abromovich et al. v. Snow Lake (Town) (1996), 108 Man.R.(2d) 81 (Q.B.), affd. (1996), 113 Man.R.(2d) 164; 131 W.A.C. 164 (C.A.), refd to. [para. 45].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 46].

Friends of the Public Gardens v. Halifax (City) et al. (1984), 65 N.S.R.(2d) 297; 147 A.P.R. 297 (T.D.), refd to. [para. 46].

Sobeys Inc. et al. v. Charlottetown (City) et al. (1996), 137 Nfld. & P.E.I.R. 227; 428 A.P.R. 227 (P.E.I.T.D.), refd to. [para. 46].

Pytka et al. v. Board of Education of Halifax District (1993), 124 N.S.R.(2d) 1; 345 A.P.R. 1 (S.C.), refd to. [para. 46].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 55].

Catalyst Paper Corp. v. North Cowichan (District) (2012), 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 56].

Hubley v. Halifax (City) (1909), 7 E.L.R. 360; 1909 CarswellNS 72, refd to. [para. 60].

St. George's Lawn Tennis Club et al. v. Halifax (Regional Municipality) (2007), 250 N.S.R.(2d) 384; 796 A.P.R. 384; 2007 NSSC 26, refd to. [para. 67].

Nanaimo (City) v. Rascal Trucking Ltd. et al. (2000), 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 73].

Bell ExpressVu Limited Partnership v. Rex et al. (2002), 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 84].

Halifax (Regional Municipality) v. DeWolfe (E.) Trucking Ltd. et al. (2007), 257 N.S.R.(2d) 276; 820 A.P.R. 276; 2007 NSCA 89, refd to. [para. 85].

Shaddock v. Calgary (City) (1959), 28 W.W.R.(N.S.) 49 (Alta. Dist. Ct.), refd to. [para. 88].

Miller et al. v. Salmon Arm (District) et al., [2004] B.C.T.C. 674; 2004 BCSC 674, refd to. [para. 88].

Toronto-Dominion Bank v. 2047545 Nova Scotia Ltd. and Brace (1995), 143 N.S.R.(2d) 27; 411 A.P.R. 27; 1995 CarswellNS 30 (S.C.), affd. (1996), 148 N.S.R.(2d) 228; 429 A.P.R. 228 (C.A.), refd to. [para. 95].

Authors and Works Noticed:

Rogers, Ian MacFee, The Law of Canadian Municipal Corporations (2nd Ed. 2009) (Looseleaf), § 212.4 [para. 61].

Counsel:

Ronald Pink, Q.C., Kelsey McLaren and David Wallbridge, for the applicants;

Jocelyn Campbell, Q.C., and Jack Townsend, for the respondent;

William L. Ryan, Q.C., and Maggie Stewart, for the intervenor.

This application was heard on June 12, 13 and 15, 2012, at Halifax, N.S., before MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following judgment on September 24, 2012.