Paradise Active Healthy Living Society v. Nova Scotia (Attorney General), (2013) 326 N.S.R.(2d) 116 (CA)

• Judge: Oland, Beveridge and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 20, 2012
• Jurisdiction: Nova Scotia
• Citations: (2013), 326 N.S.R.(2d) 116 (CA);2013 NSCA 9

Paradise Active Healthy v. N.S. (A.G.) (2013), 326 N.S.R.(2d) 116 (CA);

    1033 A.P.R. 116

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JA.064

Paradise Active Healthy Living Society (PAHLS) (appellant) v. The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia (respondent)

(CA 393959; 2013 NSCA 9)

Indexed As: Paradise Active Healthy Living Society v. Nova Scotia (Attorney General)

Nova Scotia Court of Appeal

Oland, Beveridge and Bryson, JJ.A.

January 23, 2013.

Summary:

The Province of Nova Scotia obtained title to an abandoned railway corridor. The Annapolis Country Trails Society applied for a letter of authority to develop and maintain the corridor as a multi-use trail open to all-terrain vehicles and snowmobiles. The use of motorized vehicles on the corridor was a contentious issue within the Village of Paradise. The Province erected barriers and posted signs prohibiting the use of motorized vehicles in the Paradise portion of the corridor. The matter remained highly contentious. The Paradise Active Healthy Living Society (PAHLS) was incorporated. PAHLS notified the Province that it intended to apply for a letter of authority for non-motorized use of the corridor within Paradise. The Province hired a consultant to find a resolution respecting the use of the corridor through Paradise. The consultant engaged in community consultation sessions with interested parties. PAHLS refused to participate. Upon receiving the consultant's reports, the Province removed the barriers and signs prohibiting motorized use in Paradise. PAHLS applied for a determination of the legal status of the rail bed in Paradise and declaratory relief. The Province applied for summary judgment.

The Nova Scotia Supreme Court, in a decision reported at [2012] N.S.R.(2d) Uned. 89, dismissed PAHLS' application, holding, inter alia, that the Minister's decision was a decision of a land owner regarding the use of its property. PAHLS appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - The Annapolis Country Trails Society applied for a letter of authority to develop and maintain a railway corridor as a multi-use trail open to motorized vehicles - During the process established by the Province's Rails to Trails policy, it became evident that motorized use was a contentious issue in the Village of Paradise - The Province prohibited motorized use within the Paradise portion of the corridor - The matter remained highly contentious - The Paradise Active Healthy Living Society (PAHLS) was incorporated - PAHLS notified the Province that it intended to apply for a letter of authority for non-motorized use of the corridor - The Province hired a consultant - The consultant held community consultation sessions - PAHLS refused to participate - Upon receiving the consultant's reports, the Province opened the corridor to motorized use in Paradise - PAHLS unsuccessfully applied for declaratory relief - PAHLS appealed, asserting that it had legitimately expected that the decision to close the corridor's Paradise portion to motorized use would be more than an interim solution - The Nova Scotia Court of Appeal dismissed the appeal - The Province made no representation that a change in the corridor's use could only come about by way of strict adherence to the Rails to Trails policy - PAHLS and those who opposed motorized use were given an opportunity to make their case - Having chose not to participate, PAHLS could not complain that it was not consulted - Its expectation that the barricades would have stayed up longer was not an expectation of procedure, but of substance, to which the doctrine of legitimate expectations did not apply - See paragraphs 21 to 27.

Administrative Law - Topic 8264

Discretionary powers - Judicial review - The Annapolis Country Trails Society applied for a letter of authority to develop and maintain a railway corridor as a multi-use trail open to motorized vehicles - During the process established by the Province's Rails to Trails policy, it became evident that motorized use was a contentious issue in the Village of Paradise - The Province prohibited motorized use within the Paradise portion of the corridor - The matter remained highly contentious - The Paradise Active Healthy Living Society (PAHLS) was incorporated - PAHLS notified the Province that it intended to apply for a letter of authority for non-motorized use of the corridor - The Province hired a consultant - The consultant held community consultation sessions - PAHLS refused to participate - Upon receiving the consultant's reports, the Province opened the corridor to motorized use in Paradise - PAHLS unsuccessfully applied for declaratory relief - PAHLS appealed, asserting that the applications judge's reasons were insufficient - PAHLS asserted that although the judge identified the Trails Act, he failed to consider it and its Regulations and the mandatory procedure provided for by the Rails to Trails policy which was not followed the second time - The Nova Scotia Court of Appeal dismissed the appeal - The Act and its Regulations did not apply where the trail in question had not been designated by the Governor-in Council as required by ss. 3(i) and 5 of the Act - Moreover, the Minister's approval of a particular entry or use of Crown lands was a discretionary decision entitled to a high degree of deference - Policies were not legally binding - Moreover, it appeared that the Rails to Trails policy put in place procedures to be followed by trail proponents interested in taking on primary responsibility for development, management and maintenance of abandoned corridors - Here, it was not a trail proponent, but the Province which sought resolution of the issue in Paradise - It was therefore not essential to respond to PAHLS's argument that the Province had "no clear reason" why the Rails to Trails approach was not followed a second time - However, the judge had affidavit evidence that that approach was inadequate for the Paradise situation - See paragraphs 22 to 36.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Administrative Law - Topic 8264 ].

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The appellant appealed the dismissal of its application for declaratory relief, asserting that the applications judge's reasons were insufficient - The appellant pointed out that the recounting of the facts, statement of the issues and the relevant statutory provisions consumed the first 22 paragraphs of the 33 paragraph decision - The Nova Scotia Court of Appeal dismissed the appeal - The reasons were short - However, the fact that the applications judge did not deal with the appellant's conspiracy theory or all of the appellant's submissions did not mean that he did not grasp the issues or that his decision was wrong - See paragraph 40.

Crown - Topic 682.1

Authority of ministers - Exercise of - Policy statements - Effect of - [See Administrative Law - Topic 8264 ].

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative or policy decisions - Appeals or judicial review - [See Administrative Law - Topic 8264 ].

Crown - Topic 6881

Crown lands - Licenses or permits to uses - General - [See Administrative Law - Topic 8264 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 21].

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. 22].

Smith v. Canada (Attorney General) et al., [2009] 1 F.C.R. 3; 348 F.T.R. 290; 2009 FC 228, refd to. [para. 22].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 25].

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 (S.C.C.), refd to. [para. 25].

S.R. v. Nova Scotia (Minister of Community Services) (2012), 317 N.S.R.(2d) 73; 1003 A.P.R. 73; 2012 NSCA 46, refd to. [para. 28].

North End Community Health Association et al. v. Halifax (Regional Municipality) (2012), 321 N.S.R.(2d) 162; 1018 A.P.R. 162; 2012 NSSC 330, dist. [para. 29].

Maple Lodge Farms Ltd. v. Canada and Canada (Minister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 33].

R. v. Beaudry (A.) (2007), 356 N.R. 323; 216 C.C.C.(3d) 353; 2007 SCC 5, refd to. [para. 34].

Harnum v. Canada (Attorney General) (2009), 355 F.T.R. 58; 2009 FC 1184, refd to. [para. 34].

Jivalian v. Nova Scotia (Department of Community Services) (2013), 323 N.S.R.(2d) 395; 1025 A.P.R. 395; 2013 NSCA 2, refd to. [para. 34].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2012 Looseleaf), vol. 3, pp. 12-39 to 12-43, 15-45 [para. 34].

Counsel:

W. Dale Dunlop and Ian Gray (Articled Clerk), for the appellant;

Alexander M. Cameron, for the respondent.

This appeal was heard on November 20, 2012, at Halifax, Nova Scotia, by Oland, Beveridge and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following judgment for the court on January 23, 2013.