Pink v. Davis et al., 2011 NSSC 237

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 15, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSSC 237;(2011), 304 N.S.R.(2d) 338 (SC)

Pink v. Davis (2011), 304 N.S.R.(2d) 338 (SC);

    960 A.P.R. 338

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JN.057

Joan E. Pink (applicant) v. June Davis and Allan Davis, Municipality of the Region of Queens and Nova Scotia Building Advisory Committee (respondents)

(Hfx. No. 342580; 2011 NSSC 237)

Indexed As: Pink v. Davis et al.

Nova Scotia Supreme Court

Warner, J.

June 15, 2011.

Summary:

A Municipality issued a Conditional Occupancy Permit to Pink in relation to renovations to her cottage. Five months later, the owners of property adjacent to Pink's property (the respondents) made an application to the Nova Scotia Building Advisory Committee under s. 15(1) of the Building Code Act disputing the Municipality's decision on the interpretation of "limiting distance", which formed the basis of the decision to issue the Permit. The Committee determined that it had jurisdiction to hear the respondents' application and substituted its decision. The Committee informed Pink of its decision. Pink immediately sought a reconsideration. The Committee replied that it had no authority to reconsider its decision. Pink applied for judicial review.

The Nova Scotia Supreme Court allowed the application.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The Nova Scotia Supreme Court discussed the doctrine of procedural fairness, noting that the standard of judicial review for procedural fairness and the content of the duty of procedural fairness were affirmed and clarified by the Supreme Court of Canada in Mavi et al. v. Canada (Attorney General) et al. (2011) - From that decision, the court gleaned the following principles: "1) The doctrine of procedural fairness is a fundamental component of Canadian administrative law. ... 2) While the content of the duty of procedural fairness varies with circumstances, the legislative and administrative context, Parliament did not intend that administrative officials be free to deal unfairly with people who are subject to their decisions. ... 3) A balance must be struck in determining the content of procedural fairness between delay and cost on one hand, and erroneous, incomplete or ill considered findings and exercises of discretion, and the public perception of unfairness, on the other hand. ... 4) The particular legislative and administrative context is crucial to determining the content of the duty of procedural fairness. ... 5) A number of factors help to determine the content of the duty of procedural fairness, in each particular legislative and administrative context. ... 6) 'The simple over-arching requirement is fairness and this central notion of the just exercise of power should not be diluted or obscured by jurisprudential lists developed to be helpful but not exhaustive.'" - See paragraph 67.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - A Municipality issued a Conditional Occupancy Permit to Pink in relation to renovations to her cottage - Five months later, the owners of property adjacent to Pink's property (the respondents) made an application to the Nova Scotia Building Advisory Committee under s. 15(1) of the Building Code Act disputing the Municipality's decision on the interpretation of "limiting distance", which formed the basis of the decision to issue the Permit - The Committee determined that it had jurisdiction to hear the respondents' application and substituted its decision - The Committee then informed Pink of its decision - Pink immediately sought a reconsideration - The Committee replied that it had no authority to reconsider its decision - Pink applied for judicial review - The Nova Scotia Supreme Court allowed the application - The Committee had a duty of procedural fairness that included giving notice to the owner of a building about which there had been a determination by a building official on the application of the Code and permitting the owner to participate in making the submissions which were called for in s. 15(4) - In this case the building official interpreted the "limiting distance" provisions of the Code and applied them in considering the occupancy permit which was granted to Pink - The Committee decided to substitute a different interpretation - This decision very clearly affected Pink's interests - It was made without notice to Pink and without any opportunity for her to make submissions - Pink should have had the opportunity to make submissions on a decision affecting her rights and interests in a fair, impartial and open process - She was denied the opportunity to do so - This was clearly a breach of the duty of procedural fairness - See paragraphs 60 to 81.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - A Municipality issued a Conditional Occupancy Permit to Pink in relation to renovations to her cottage - Five months later, the owners of property adjacent to Pink's property (the respondents) made an application to the Nova Scotia Building Advisory Committee under s. 15(1) of the Building Code Act disputing the Municipality's decision on the interpretation of "limiting distance", which formed the basis of the decision to issue the Permit - The Committee determined that it had jurisdiction to hear the respondents' application and substituted its decision - Pink applied for judicial review - The Nova Scotia Supreme Court held that "[a] statutory body, such as the Committee, when sitting as an appellate tribunal, must be correct in determining true questions of jurisdiction. No standard of review analysis is required to determine whether a more deferential standard of review must be undertaken. If the Committee did not interpret its grant of authority in s. 15(1) of the Act correctly, the decision is ultra vires." - See paragraphs 26 to 32.

Administrative Law - Topic 3349

Judicial review - Practice - Costs - A Municipality issued a Conditional Occupancy Permit to Pink in relation to renovations to her cottage - Five months later, the owners of property adjacent to Pink's property (the respondents) made an application to the Nova Scotia Building Advisory Committee under s. 15(1) of the Building Code Act disputing the Municipality's decision on the interpretation of "limiting distance", which formed the basis of the decision to issue the Permit - The Committee determined that it had jurisdiction to hear the respondents' application and substituted its decision - Pink was successful in her application for judicial review - Pink and the Municipality sought costs - The Nova Scotia Supreme Court found that both the respondents and the Committee were responsible for Pink's and the Municipality's costs - Given that this was not a complex matter, the importance of the matters to the parties and the amount of effort by the parties' counsel, the court found that Pink's and the Municipality's claims of $3,000 in costs was appropriate - See paragraphs 92 to 131.

Land Regulation - Topic 4125

Land use control - Statutory appeals - Jurisdiction - A Municipality issued a Conditional Occupancy Permit to Pink in relation to renovations to her cottage - Five months later, the owners of property adjacent to Pink's property (the respondents) made an application to the Nova Scotia Building Advisory Committee under s. 15(1) of the Building Code Act disputing the Municipality's decision on the interpretation of "limiting distance", which formed the basis of the decision to issue the Permit - The Committee determined that it had jurisdiction to hear the respondents' application and substituted its decision - Pink applied for judicial review - The Nova Scotia Supreme Court allowed the application - The owner of the building which was the subject of the building official's decision was the only person who could be an applicant under s. 15(1) - She was the person in control of the property and the building under consideration - The only building about which there was a dispute regarding the technical requirements of the Building Code or the sufficiency of Pink's compliance with those requirements was Pink's property - There was no other building about which there was a dispute regarding the technical requirements of the Code or the sufficiency of compliance with those requirements - Accordingly, the Committee did not have jurisdiction to deal with the application from the respondents or to make its decision regarding the application of the Code to Pink's building - See paragraphs 33 to 59.

Land Regulation - Topic 4125

Land use control - Statutory appeals - Jurisdiction - Section 15(1) of the Building Code Act provided that "[w]here a dispute arises between an owner of a building or the owner's agent and an [a] building official respecting the technical requirements of the Building Code or the sufficiency of compliance with such requirements, or respecting an order made by the building official pursuant to Section 12, the owner or the owner's agent may make an application to the Committee for a ruling on the subject-matter of the dispute" - The Nova Scotia Supreme Court held that "[a] reading of s. 15(1), in its grammatical and ordinary sense, demonstrates that in order to bring an application for a hearing before the Committee, a person must be an owner of a building or the owner's agent with respect to a dispute that has arisen between a building official and the owner about Code requirements. The term 'owner' is defined in s. 2(o) of the Act. The connection between an 'owner' and the control of property 'under consideration', is also seen in the definition of 'owner' in the [Building] Code (Article 1.1.3.2.) and in the Nova Scotia Building Code Regulations ... (Article 1.3.1.3.). Based on the definition of 'owner' in the Act and related legislation, the meaning of 'the owner of a building' is that an owner has to be either the person controlling the property 'under consideration' by the building official or the assessed owner of the property 'under consideration'." - See paragraphs 43 to 45.

Land Regulation - Topic 4125

Land use control - Statutory appeals - Jurisdiction - Section 15(1) of the Building Code Act provided that "[w]here a dispute arises between an owner of a building or the owner's agent and [a] building official respecting the technical requirements of the Building Code or the sufficiency of compliance with such requirements, or respecting an order made by the building official pursuant to Section 12, the owner or the owner's agent may make an application to the [Nova Scotia Building Advisory] Committee for a ruling on the subject-matter of the dispute" - Section 16(1) provided "[a]ny person who is adversely affected by an order given or decision made by [a] building official under this Act, or by a decision of the Committee may, within thirty days after the order or decision is made, apply to the Supreme Court of Nova Scotia for a hearing and appeal." - The Nova Scotia Supreme Court held that "section 16(1) shows that the intention of the legislature in relation to a s. 15(1) application to the Committee was that only an owner of a building that is subject to a decision of a building official can apply to the Committee. This is based on the very different wording in ss. 15(1) and 16(1) with respect to the authority of the Committee and the Court. The words '[A]ny person who is adversely affected by an order' used in s. 16(1) unequivocally allows any adversely affected person to bring an appeal to the Supreme Court of Nova Scotia. ... By contrast, individuals who are able to bring an application to the Committee under s. 15(1) are restricted to the 'owners of a building' where a dispute arises with a building official. Had the legislature intended to broaden the scope of the Committee's jurisdiction 'to any person who is adversely affected by a decision', they could have chosen similar wording to that employed in s. 16(1). ... Taken together, the provisions of the Act, in their entire context, read harmoniously with the scheme and object of the Act and the related legislation shows that only owners of buildings under consideration by building officials can apply to the Committee for a ruling." - See paragraphs 46 to 51.

Land Regulation - Topic 4125

Land use control - Statutory appeals - Jurisdiction - A Municipality issued a Conditional Occupancy Permit to Pink in relation to renovations to her cottage - Five months later, the owners of property adjacent to Pink's property (the respondents) made an application to the Nova Scotia Building Advisory Committee under s. 15(1) of the Building Code Act disputing the Municipality's decision on the interpretation of "limiting distance", which formed the basis of the decision to issue the Permit - The Committee determined that it had jurisdiction to hear the respondents' application and substituted its decision - The Nova Scotia Supreme Court held that "the consequence of the Committee's interpretation regarding its jurisdiction is that any person who is interested or potentially affected by a dispute between a building official and the owner of a building could bring an application before the Committee. This consequence is not consistent with the legislative intent for at least three reasons: (1) upon a grammatical reading, s. 15(1) applies to owners who dispute a decision or order of a building official in respect of the technical requirements applicable to their own building, (2) upon a grammatical reading, s. 16(1) affords affected parties with an appeal to the Supreme Court of Nova Scotia, and (3) if, for the purposes of s. 15(1), an owner can be someone other than the owner of the building in dispute, then it is illogical that in s. 15(2) the applicant need only to cause notice to be served on the building official and not on the owner to the building in dispute. Restricting the term 'owner' in s. 15(1) to the owner of the building in dispute satisfies the requirement of plausibility, efficacy and acceptability as a legislative choice for accomplishing the purposes of the Act." - See paragraphs 52 to 59.

Statutes - Topic 499

Interpretation - General principles - General - The Nova Scotia Supreme Court discussed the proper interpretation to statutory interpretation and summarized Driedger's three analytical steps as: "1. Analysis of the 'textual' meaning (that is, the words of the Act in their entire context). Sullivan notes that finding the grammatical or ordinary sense of words may involve complex issues of linguistic convention, expression and understanding. 2. Analysis of legislative intent. Legislation has a purpose and is intended to achieve certain goals. Courts must try to identify purposes and goals, as well as the means devised to achieve them. 3. Analysis of established legal norms, as part of the context for reading words in legislation. According to Driedger, there are four kinds of legislative intention: expressed, implied, presumed and declared intention. Presumed intention embraces the evolving legal norms found primarily in the common law but also in constitutional, quasi-constitutional and international law. The three analyses are sometimes turned into three questions: 1. What is the meaning of the text? 2. What goals (purposes) and methods did the legislature intend to adopt? 3. What are the consequences of adopting a proposed interpretation? When applying these analytical steps, the resulting interpretation must be justified in terms of its plausibility (compliance with the text), its efficacy (promotion of the legislative intent) and its acceptability (compliance with accepted legal norms)." - See paragraphs 38 to 42.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 26].

Canadian Union of Public Employees, Local 2434 et al. v. Port Hawkesbury (Town) et al. (2011), 301 N.S.R.(2d) 123; 953 A.P.R. 123; 2011 NSCA 28, refd to. [para. 28].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 39].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 39].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 39].

Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) (2009), 277 N.S.R.(2d) 350; 882 A.P.R. 350; 2009 NSCA 44, refd to. [para. 39].

Coates v. Capital District Health Authority et al. (2011), 299 N.S.R.(2d) 202; 947 A.P.R. 202; 2011 NSCA 4, refd to. [para. 39].

Maritime Paper Products Ltd. v. Communications, Energy and Paperworkers' Union, Local 1520 (2009), 278 N.S.R.(2d) 381; 886 A.P.R. 381; 2009 NSCA 60, refd to. [para. 66].

Mavi et al. v. Canada (Attorney General) et al. (2011), 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 67].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 67].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 67].

Iqbal et al. v. Canada (Minister of Citizenship and Immigration) (2005), 281 F.T.R. 68; 2005 FC 1388, refd to. [para. 83].

Menon v. Canada (Minister of Citizenship and Immigration) (2005), 275 F.T.R. 303; 2005 FC 1273, refd to. [para. 83].

Lang v. Superintendent of Motor Vehicles (B.C.) et al. (2005), 212 B.C.A.C. 78; 350 W.A.C. 78; 2005 BCCA 244, refd to. [para. 107].

Court v. Environmental Appeal Board (Alta.) (2003), 345 A.R. 179; 2003 ABQB 912, refd to. [para. 107].

St. Peters Estates Ltd. v. Land Use Commission (P.E.I.) (1991), 93 Nfld. & P.E.I.R. 45; 292 A.P.R. 45; 1991 CarswellPEI 96 (P.E.I.T.D.), refd to. [para. 110].

Kelly v. Human Rights Commission (P.E.I.) et al. (2010), 296 Nfld. & P.E.I.R. 220; 915 A.P.R. 220; 2010 PECA 6, refd to. [para. 113].

Peach v. Nova Scotia (Minister of Transportation and Infrastructure Renewal), [2010] N.S.R.(2d) Uned. 137; 2010 NSSC 207, refd to. [para. 127].

Statutes Noticed:

Building Code Act, R.S.N.S. 1989, c. 46, sect. 15(1), sect. 16(1) [para. 37].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (Looseleaf Ed.), s. 5:2560 [para. 107].

Counsel:

Raymond F. Larkin, Q.C., for Joan Pink ("the applicant");

Roderick H. (Rory) Rogers, Q.C., for the Municipality of the Region of Queens ("the Municipality");

G.F. Philip Romney, for June and Allan Davis ("the respondents");

Ryan Brothers, for Nova Scotia Building Advisory Committee ("the Committee").

This application was heard and decided orally in Halifax, Nova Scotia, on June 15, 2011, by Warner, J., of the Nova Scotia Supreme Court, who delivered the following written decision on June 16, 2011.