Northern Construction Enterprises Inc. v. Halifax (Regional Municipality) et al., (2014) 344 N.S.R.(2d) 310 (SC)

• Judge: Murphy, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 11, 2013
• Jurisdiction: Nova Scotia
• Citations: (2014), 344 N.S.R.(2d) 310 (SC);2014 NSSC 166

Northern Constr. Ent. v. Halifax (2014), 344 N.S.R.(2d) 310 (SC);

    1089 A.P.R. 310

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.021

Northern Construction Enterprises Inc. (applicant) v. The Halifax Regional Municipality (respondent) and Dwight Ira Isenor and Stacey Lea Rudderham (intervenors)

(Halifax No. 412683; 2014 NSSC 166)

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

Nova Scotia Supreme Court

Murphy, J.

May 5, 2014.

Summary:

Northern Construction Enterprises Inc.'s request for a permit to develop a rock 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 for Planning Districts 14 and 17, made pursuant to the HRM Charter. Northern applied for a declaration that s. 2.29 (the Bylaw) was ultra vires and of no force and effect.

The Nova Scotia Supreme Court dismissed the application. 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 coexist.

Land Regulation - Topic 3216.2

Land use control - Building or development permits - Grounds for refusal - Development contrary to municipal planning strategy - [See Land Regulation - Topic 3239 ].

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - Northern Construction Enterprises Inc.'s request for a permit to develop a rock 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 for Planning Districts 14 and 17, made pursuant to the HRM Charter - Northern applied for a declaration that s. 2.29 (the Bylaw) was ultra vires and of no force and effect - The Nova Scotia Supreme Court dismissed the application - HRM had the statutory authority to regulate extractive facilities at quarry sites - The Bylaw was intra vires - "The Bylaw must be considered in the context of an overall statutory scheme which assigns responsibility for planning and development to HRM under the Charter, and includes the provisions in the EA [Environment Act] which recognize municipal responsibility and authority in relation to industrial approvals. Applying a modern and purposive interpretation to the plain and ordinary language in the HRM Charter and the EA, I conclude that the EA and the By-law can coexist. The legislature has recognized that municipalities have a role to play in the location of extractive facilities. The Supreme Court of Canada has affirmed that a deferential approach should be applied. The Province has not retained jurisdiction to regulate extractive facilities or production and processing activity; the HRM Charter gives the municipality authority to pass by-laws regulating industries and associated works." - See paragraphs 53 and 54.

Land Regulation - Topic 3503

Land use control - Environmental protection - General principles - Permitted uses - [See Land Regulation - Topic 3239 ].

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 1583

Powers of municipalities - Exercise of powers - Conflict with provincial or federal legislation - [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 - The applicant's request for a permit to develop a rock 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 - The applicant sought a declaration that s. 2.29 (the Bylaw) was ultra vires - It maintained that under the Environment Act (EA), the Province retained authority to regulate all activities at the proposed quarry - The Nova Scotia Supreme Court held that the applicant had not established that the Province retained jurisdiction to regulate all aspects of pits and quarries, including production and processing - The Court agreed with the respondent's submission that ss. 6(3), 6(5), 45 and 53(4) of the EA, as well as s. 47(1) which provided for joint provincial-municipal assessments and allowed the Province to delegate responsibility to municipalities, contemplated participation by the respondent in zoning aspects of quarry activity - Municipal approval requirements were also recognized in EA regulations and in the province's Pit and Quarry Guidelines - Also, as the Province had defined "quarry" without including extractive facilities separately from "associated works", its exclusive jurisdiction to determine quarry locations did not extend to regulating "extractive facilities" at those sites - See paragraphs 9 to 14.

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - The applicant's request for a permit to develop a rock 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 - The applicant sought a declaration that s. 2.29 (the Bylaw) was ultra vires - It submitted that because s. 235(4)(j) of the HRM Charter explicitly stated that "A land-use by-law may regulate the location of developments adjacent to pits and quarries", the respondent did not have authority to regulate development on lands used as, or within quarries - The Nova Scotia Supreme Court held that s. 235(4)(j) of the Charter should not be construed as limiting the respondent's authority to regulate post-extraction activities within quarry boundaries - The applicant's submission that s. 235(4)(j) was restrictive and limited municipal jurisdiction to regulating developments adjacent to quarries was inconsistent with other HRM Charter provisions (ss. 187 and 235(1)(b)) - See paragraphs 16 to 19.

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - The applicant's request for a permit to develop a rock 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 - The applicant sought a declaration that s. 2.29 (the Bylaw) was ultra vires - It submitted that the Bylaw represented an effort by the respondent to regulate quarries and their associated works, when it did not have the authority to do so under the HRM Charter - The Nova Scotia Supreme Court considered the scope and purpose of the provision and the power given to the municipality to adopt it, per the analysis method in Halifax v. Ed DeWolfe Trucking Ltd. (2007) (N.S.C.A.) - The Court disagreed with the applicant's interpretation that the Bylaw's scope extended to regulating quarry location - The scope and purpose of the Bylaw did not exceed HRM's authority just because its effect might be to require a quarry operator to develop an alternate business plan for extractive facilities - The provisions of the Bylaw fell within the development and management purpose of the Municipal Planning Strategy set out in s. 228 of the HRM Charter, and its content was consistent with the requirements of s. 235 - See paragraphs 20 to 26.

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - The applicant's request for a permit to develop a rock 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 - The applicant sought a declaration that s. 2.29 (the Bylaw) was ultra vires - It submitted that HRM's authority under the planning provisions of the HRM Charter was limited to general power over land use planning, and did not extend to regulating or prohibiting the operations of quarries or their associated works - The Nova Scotia Supreme Court disagreed - "Applying the purposive and contextual approach mandated by the Supreme Court of Canada and Nova Scotia Court of Appeal I find that the HRM Charter gives the Municipality wide powers respecting planning and zoning." - There were provisions in the Charter which addressed HRM's ability to regulate and/or prohibit extractive facilities - In order to assess the complete legislative scheme, the Court also considered the Environment Act (EA) and concluded that it "recognizes the role of municipal governments with respect to the protection of the environment. There is a shared responsibility without conflict between the various levels of government to monitor and protect the environment." - The Bylaw did not attempt to regulate matters within the realm of provincial control such as "extraction" - "To the contrary, it falls within an area of municipal competence, and is consistent with the legislative scheme of the HRM Charter and the EA. There is no conflict between the Bylaw and any provincial enactment, and therefore the question of paramountcy does not arise." - See paragraphs 27 to 50.

Municipal Law - Topic 3859

Bylaws - Quashing bylaws - Grounds for judicial interference - Conflict with statute or regulations - [See fourth Municipal Law - Topic 3842 ].

Municipal Law - Topic 3860

Bylaws - Quashing bylaws - Grounds for judicial interference - Unauthorized by empowering statute - [See third Municipal Law - Topic 3842 ].

Municipal Law - Topic 3864

Bylaws - Quashing bylaws - Grounds for judicial interference - Field occupied by provincial legislature - [See first Municipal Law - Topic 3842 ].

Cases Noticed:

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, appld. [para. 21].

Annapolis County (Municipality) v. Hankinson et al. (2002), 205 N.S.R.(2d) 304; 643 A.P.R. 304; 2002 NSSC 149, dist. [para. 27 et seq.].

Pickering (Township) v. Godfrey, [1958] O.R. 429 (C.A.), refd to. [para. 27].

Dexter Construction Co. v. Saint John (City) (1982), 35 N.B.R.(2d) 217; 88 A.P.R. 217 (C.A.), refd to. [para. 27].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 2001 SCC 40, refd to. [para. 33].

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. [para. 34].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 37].

Kynock v. Bennett et al. (1994), 131 N.S.R.(2d) 334; 371 A.P.R. 334 (C.A.), refd to. [para. 48].

Pitt River Quarries Ltd. v. Dewdney-Alouette Regional District, [1995] B.C.T.C. Uned. 741 (S.C.), refd to. [para. 51].

Nanaimo (Regional District) v. Jameson Quarries Ltd. et al., [2005] B.C.T.C. 1639; 2005 BCSC 1639, refd to. [para. 51].

Cowichan Valley (Regional District) v. Norton, [2005] B.C.T.C. Uned. 471; 2005 BCSC 1056, refd to. [para. 51].

Squamish (District) v. Great Pacific Pumice Inc. et al. (2003), 185 B.C.A.C. 41; 303 W.A.C. 41; 2003 BCCA 404, refd to. [para. 51].

Statutes Noticed:

Environment Act, S.N.S. 1994-95, c. 1, sect. 6(3), sect. 6(5), sect. 45, sect. 53(4) [para. 11].

Halifax (Regional Municipality) Bylaws, Land Use Bylaw, sect. 2.29 [para. 1].

Halifax Regional Municipality Charter, S.N.S. 2008, c. 39, sect. 235(4)(j) [para. 16].

Interpretation Act, R.S.N.S. 1989, c. 235, sect. 9(5) [para. 36].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statues (5th Ed. 2008), c. 11 [para. 35].

Counsel:

Peter Rogers, Q.C., and Jane O'Neill, for the applicant;

Roxanne MacLaurin, for the respondent;

Paul B. Miller, for the intervenors.

This application was heard on July 11, 2013, in Halifax, Nova Scotia, before Murphy, J., of the Nova Scotia Supreme Court, who delivered the following judgment, dated May 5, 2014.