Northern Constr. Ent. v. Halifax, 2015 NSCA 44

Judge:MacDonald, C.J.N.S., Beveridge and Farrar, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:February 11, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 44;(2015), 359 N.S.R.(2d) 201 (CA)
 
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Northern Constr. Ent. v. Halifax (2015), 359 N.S.R.(2d) 201 (CA);

    1133 A.P.R. 201

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Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.022

Northern Construction Enterprises Inc. (appellant) v. The Halifax Regional Municipality, Dwight Ira Isenor and Staceylee Rudderham (respondents)

(CA 428571; 2015 NSCA 44)

Indexed As: Northern Construction Enterprises Inc. v. Halifax (Regional Municipality) et al.

Nova Scotia Court of Appeal

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

May 12, 2015.

Summary:

Northern Construction Enterprises Inc.'s request for a permit to develop an aggregate quarry was refused by the Halifax Regional Municipality (HRM) on the basis that the proposed operations would comprise "extractive facilities" prohibited under s. 2.29 of the Land Use Bylaw, made pursuant to the HRM Charter. Northern applied for a declaration that s. 2.29 of the Bylaw was ultra vires and of no force and effect.

The Nova Scotia Supreme Court, in a decision reported at (2014), 344 N.S.R.(2d) 310; 1089 A.P.R. 310, dismissed the application. Section 2.29 of the Bylaw was intra vires. While the Province had exclusive jurisdiction under the Environment Act (EA) to determine the location of quarries, the Municipality had authority to regulate "extractive facilities" (processing activities at the quarry site, following the extraction of rock). Applying a modern and purposive interpretation, the Court concluded that the EA and the Bylaw could co-exist. Northern appealed.

The Nova Scotia Court of Appeal, on a correctness standard, allowed the appeal. The impugned Bylaw trespassed into provincial jurisdiction and to that extent it was declared invalid.

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - The Nova Scotia Court of Appeal held that the respondent Halifax Regional Municipality (HRM), with the impugned land use bylaw, trespassed into the Province's jurisdiction to regulate the location of quarries - To that extent, the bylaw was declared invalid - "No approach to statutory interpretation, however benevolent, purposive and contextual, can create authority that does not exist. ... [W]hatever broad authority might have been bestowed, everyone agrees that the Province reserved the right to control the location of quarries. ... No benevolent interpretation can suggest otherwise. In fact, the only fair inference is that by granting express authority over developments adjacent to quarries, the Province excluded authority over quarries. ... [R]eference to non-legislative guidelines involving a different piece of legislation [Environment Act] is not enough to overcome the unreasonable outcomes mandated by the HRM's proposed interpretation. ... [T]he HRM is attempting to do indirectly what is it unauthorized to do directly" - See paragraphs 14 to 30.

Mines and Minerals - Topic 6022

Operation of mines, quarries and wells - Licences and permits - Issuance of - [See Land Regulation - Topic 3239 ].

Municipal Law - Topic 1430

Powers of municipalities - Respecting land - Land use - [See Land Regulation - Topic 3239 ].

Municipal Law - Topic 1526

Powers of municipalities - Construction of powers - General - [See Land Regulation - Topic 3239 ].

Municipal Law - Topic 3731

Bylaws - Construction or interpretation - Purpose - [See Land Regulation - Topic 3239 ].

Municipal Law - Topic 3803

Bylaws - Quashing bylaws - General - Excess of powers - [See Land Regulation - Topic 3239 ].

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - [See Land Regulation - Topic 3239 ].

Municipal Law - Topic 3860

Bylaws - Quashing bylaws - Grounds for judicial interference - Unauthorized by empowering statute - [See Land Regulation - Topic 3239 ].

Cases Noticed:

Elderkin et al. v. Nova Scotia (Minister of Service Nova Scotia and Municipal Relations) (2013), 331 N.S.R.(2d) 372; 1051 A.P.R. 372; 2013 NSCA 79, refd to. [para. 10].

RSJ Holdings Inc. v. London (City), [2007] 2 S.C.R. 588; 364 N.R. 362; 226 O.A.C. 375; 2007 SCC 29, refd to. [para. 10].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [paras. 11, 12].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (2004), 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [paras. 11, 12].

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. [paras. 11, 13].

Statutes Noticed:

Halifax (Regional Municipality) Bylaws, Land Use Bylaw, sect. 2.29 [para. 9].

Halifax Regional Municipality Charter, S.N.S. 2008, c. 39, sect. 2 [para. 16]; sect. 208 [para. 18].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statues (6th Ed.), p. 7 [para. 13].

Counsel:

Peter Rogers, Q.C., for the appellant;

E. Roxanne MacLaurin, for the respondent, the Halifax Regional Municipality;

Paul Miller, for the respondents, Dwight Ira Isenor and Staceylee Rudderham.

This appeal was heard on February 11, 2015, in Halifax, Nova Scotia, before MacDonald, C.J.N.S., Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by MacDonald, C.J.N.S., the Court delivered the following judgment, dated May 12, 2015.

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