North End Community Health Association et al. v. Halifax (Regional Municipality), 2014 NSCA 92

• Judge: MacDonald, C.J.N.S., Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 09, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSCA 92;(2014), 351 N.S.R.(2d) 252 (CA)

North End Com. Health v. Halifax (2014), 351 N.S.R.(2d) 252 (CA);

    1111 A.P.R. 252

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. OC.010

Jono Developments Ltd. (appellant) v. The North End Community Health Association, The Richard Preston Centre for Excellence Society, and The Micmac Native Friendship Society and Halifax Regional Municipality (respondents)

(CA 415197; 2014 NSCA 92)

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

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Farrar and Bryson, JJ.A.

October 9, 2014.

Summary:

A regional municipality (RM) sought proposals to purchase three surplus school properties. Several community service organizations (CSOs) 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 CSOs applied under rule 7.28 to stay the sale to the private developer 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, in a judgment reported (2012), 321 N.S.R.(2d) 162; 1019 A.P.R. 162, 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. The private developer appealed.

The Nova Scotia Court of Appeal, MacDonald, C.J.N.S., dissenting, allowed the appeal. Although the RM owed the CSOs a duty of fairness, the process followed met that duty. The trial judge erred in finding that the sale breached the Charter because it was below the fair market value, as there was ample evidence to support $3 Million being the market value.

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 that was appraised at between $1 Million (as is) and $4.3 Million (redeveloped) - Several community service organizations (CSOs) submitted proposals to acquire the property for $1 to provide programs and services to area community members - The RM accepted a private developer's proposal to purchase the property for $3 Million (as is) - 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 trial judge 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) - The RM breached its duty of fairness by not following its own Disposal Procedure - Further, the RM sold the property for below market value - By the developer's own offer indicating a willingness to pay up to $4 Million if a competing bid of $3.925 Million were received, the fair market value was $4 Million - The Nova Scotia Court of Appeal allowed the private developer's appeal - RM staff were unaware of the Disposal Procedure in place since 2000 - In fact, 16 surplus school properties were sold between 2000 and 2013 without following the Disposal Procedure - The RM owed the CSOs a moderate level of fairness - The lack of pre-existing knowledge of the Disposal Procedure by the CSOs did not defeat a legitimate expectations claim, but the legitimate expectation was fairness, not strict adherence to the Disposal Procedure - Where the procedure actually used was substantially similar to the Disposal Procedure, the legitimate expectations of the CSOs were fulfilled notwithstanding the lack of strict compliance with the Disposal Procedure - The duty of fairness was met - Finally, since the only bid by a "willing buyer" was $3 Million, the trial judge erred in not accepting that as the market value - See paragraphs 43 to 135.

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:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 40].

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, leave to appeal denied (2012), 439 N.R. 392; 334 N.S.R.(2d) 400; 1059 A.P.R. 400 (S.C.C.), refd to. [para. 41].

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. 42].

Nova Scotia (Minister of Community Services) v. N.N.M. and R.D.M. (2008), 268 N.S.R.(2d) 109; 857 A.P.R. 109; 2008 NSCA 69, refd to. [para. 42].

Kelly v. Police Commission (N.S.) (2006), 241 N.S.R.(2d) 300; 767 A.P.R. 300; 2006 NSCA 27, refd to. [para. 42].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 43].

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine (Village), [2004] 2 S.C.R. 650; 323 N.R. 1; 2004 SCC 48, refd to. [para. 44].

Potter et al. v. Board of Education of Halifax Region (2002), 206 N.S.R.(2d) 18; 645 A.P.R. 18; 2002 NSCA 88, refd to. [para. 46].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63, refd to. [para. 53].

Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149 (C.A.), refd to. [para. 66].

Hong Kong (Attorney General) v. Ng Yuen Shiu, [1983] 2 A.C. 629 (P.C.), refd to. [para. 66].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 67].

R. v. North and East Devon HA (ex parte Coughlan), [2001] Q.B. 213 (C.A.), refd to. [para. 68].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services) (2001), 271 N.R. 104; 2001 SCC 41, refd to. [para. 69].

Apotex Inc. v. Canada (Attorney General) et al. (2000), 255 N.R. 319 (F.C.A.), refd to. [para. 70].

Choi v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 308 (T.D.), refd to. [para. 76].

Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36 (T.D.), refd to. [para. 76].

Bendahmane v. Minister of Employment and Immigration, [1989] 3 F.C. 16; 95 N.R. 385 (C.A.), refd to. [para. 76].

Gillingham v. Corner Brook/Deer Lake/St. Barbe District No. 3 (1998), 169 Nfld. & P.E.I.R. 1; 521 A.P.R. 1 (Nfld. T.D.), refd to. [para. 84].

Attaran v. University of British Columbia, [1998] B.C.J. No. 115 (S.C.), refd to. [para. 88].

Campbell v. Workers' Compensation Board (Sask.) (2012), 393 Sask.R. 246; 546 W.A.C. 246; 2012 SKCA 56, refd to. [para. 89].

Mega International Commercial Bank (Canada) v. Canada (Attorney General) (2012), 407 F.T.R. 232; 2012 FC 407, refd to. [para. 91].

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. 124].

Wile v. Barkhouse, [2011] N.S.R.(2d) Uned. 116; 2011 NSCA 50, refd to. [para. 140].

Authors and Works Noticed:

Brown, Donald, and Evans, John, Judicial Review of Administrative Action (1998) (May 2013 looseleaf update), pp. 7-23, 7-24 [para. 65].

Wright, D., Rethinking the Doctrine of Legitimate Expectations in Canadian Administrative Law (1997), 35 Osgoode Hall L.J. 139, generally [para. 66].

Counsel:

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

Ronald A. Pink, Q.C., David Wallbridge and Kelly McMillan, for the respondents, The North End Community Health Association, The Richard Preston Centre for Excellence Society and the Micmac Native Friendship Society;

Martin C. Ward, Q.C., for the respondent, Halifax Regional Municipality (Watching Brief only).

This appeal was heard on May 14, 2014, at Halifax, N.S., before MacDonald, C.J.N.S., Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On October 9, 2014, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Farrar, J.A. (Bryson, J.A., concurring) - see paragraphs 1 to 145;

MacDonald, C.J.N.S., dissenting - see paragraphs 146 to 166.