Northern Construction Enterprises Inc. v. Halifax (Regional Municipality) et al., 2015 NSCA 75

• Judge: Beveridge, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: Thursday July 16, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 75;(2015), 364 N.S.R.(2d) 1 (CA)

Northern Constr. Ent. v. Halifax (2015), 364 N.S.R.(2d) 1 (CA);

    1146 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.051

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

(CA 428571; 2015 NSCA 75)

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

Nova Scotia Court of Appeal

Beveridge, J.A.

July 28, 2015.

Summary:

Halifax Regional Municipality (HRM) enacted a land-use bylaw that prohibited "extractive facilities" in certain planning districts. Included in those districts was the Aerotech Business Zone. Northern Construction Enterprises Inc. proposed to develop an aggregate quarry in that Zone. HRM refused to issue a development permit to Northern. The Utility and Review Board dismissed Northern's appeal. Northern applied for a declaration that the bylaw was invalid.

The Nova Scotia Supreme Court, in a decision reported at (2014), 344 N.S.R.(2d) 310; 1089 A.P.R. 310, dismissed Northern's application. Northern appealed both the Board and the Supreme Court decisions.

The Nova Scotia Court of Appeal, in a decision reported at (2015), 359 N.S.R.(2d) 218; 1133 A.P.R. 218, dismissed the appeal from the Utility and Review Board, but, in a decision reported at (2015), 359 N.S.R.(2d) 201; 1133 A.P.R. 201, allowed the appeal from the Supreme Court, and declared HRM's bylaw to be invalid. HRM moved to stay the effect of the judgment pending its application to the Supreme Court of Canada for leave to appeal.

The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the motion.

Mines and Minerals - Topic 6022

Operation of mines, quarries and wells - Licences and permits - Issuance of - [See Practice - Topic 9090.4].

Practice - Topic 9090.4

Appeals - Supreme Court of Canada - Leave to appeal - Stay of judgment pending application for - The respondent sought to operate an aggregate quarry with rock crushing equipment - The judgment of the Nova Scotia Court of Appeal was that the appellant municipality (HRM)'s bylaw that purported to prohibit activities at a quarry site was beyond its legislative authority - HRM moved to stay the effect of the judgment pending its application to the Supreme Court of Canada for leave to appeal - The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the motion - "There is considerable force to the respondent's argument that HRM has not shown that its proposed appeal is arguably one of national or public importance. ... Speculation about what things 'could' occur, 'potential' negative impacts and conclusionary statements of irreparable impact hardly suffice. ... [G]overnment action is being asked to be allowed to continue despite a considered decision by this Court that HRM lacks the authority to prohibit the conduct in question. There may well be some circumstances where it is appropriate and just to stay the effects of a decision declaring a by-law invalid, but not on this record. ... HRM refuses to provide an undertaking for damages that would be caused by a stay in the event the appeal proceedings are unsuccessful. In these circumstances, the balance of convenience plainly favours the respondent."

Cases Noticed:

T.G. v. Nova Scotia (Minister of Community Services) et al. (2012), 318 N.S.R.(2d) 317; 1005 A.P.R. 317; 2012 NSCA 71, refd to. [para. 12].

Morrison Estate et al. v. Nova Scotia (Attorney General) et al. (2009), 284 N.S.R.(2d) 292; 901 A.P.R. 292; 2009 NSCA 116, refd to. [para.12].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311, refd to. [para. 12].

Baier et al. v. Alberta, [2006] 2 S.C.R. 311; 351 N.R. 302; 391 A.R. 287; 377 W.A.C. 287; 2006 SCC 38, refd to. [para. 12].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 13].

Turf Masters Landscaping Ltd. v. T.A.G. Developments Ltd. and Dartmouth (City) (1995), 144 N.S.R.(2d) 326; 416 A.P.R. 326 (C.A.), refd to. [para. 29].

Nova Scotia (Minister of Community Services) v. B.F. and B.W. (2003), 219 N.S.R.(2d) 67; 692 A.P.R. 67; 2003 NSCA 125, refd to. [para. 29].

Higgins v. Nova Scotia (Attorney General) et al. (2013), 335 N.S.R.(2d) 292; 1060 A.P.R. 292; 2013 NSCA 118, refd to. [para. 29].

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. [para. 31].

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. 31].

Statutes Noticed:

Rules of Court (S.C.C.) - see Supreme Court of Canada Rules.

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 65.1(1) [para. 10].

Supreme Court of Canada Rules, rule 62 [para. 11].

Counsel:

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

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

Edward A. Gores, Q.C., for the Attorney General of Nova Scotia (watching brief only).

This motion for a stay was heard on July 16, 2015, in Halifax, Nova Scotia, before Beveridge, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision, released on July 28, 2015.