Quispamsis (Village), Re, (1976) 15 N.B.R.(2d) 145 (QB)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 17, 1976
• Jurisdiction: New Brunswick
• Citations: (1976), 15 N.B.R.(2d) 145 (QB)

Quispamsis, Re (1976), 15 N.B.R.(2d) 145 (QB);

    15 R.N.-B.(2e) 145; 18 A.P.R. 145

MLB headnote and full text

Sommaire et texte intégral

Re Village of Quispamsis

Indexed As: Quispamsis (Village), Re

Répertorié: Quispamsis (Village), Re

New Brunswick Court of Queen's Bench

Stratton, J.

May 17, 1976.

Summary:

Résumé:

This case arose out of a building inspector's refusal to issue a building permit to the purchasers of a subdivision lot. The subdivision was created in the Village of Quispamsis in 1966. Subsequently, the village was incorporated and the whole of the village was zoned residential. In 1974 the village passed a by-law under which the land including the subdivision was rezoned industrial with residential housing prohibited. In 1975 the lot was sold and the purchasers began to build a house on the lot without a building permit. The purchasers were forced to apply for a building permit, which was refused by the building inspector for the village. The purchasers appealed to the Provincial Planning Appeal Board, which under its powers pursuant to s. 86(2)(a)(ii) of the Community Planning Act, R.S.N.B. 1973, c. C-12, ordered the building inspector to issue a building permit on the ground that a refusal would cause the purchasers unreasonable hardship. The village and the building inspector applied for an order of certiorari to quash the decision of the Board.

The New Brunswick Court of Queen's Bench dismissed the application. The New Brunswick Court of Queen's Bench held that the decision of the board that a refusal of the building permit in the circumstances would work an unreasonable hardship on the purchasers was reasonable and should not be disturbed. See paragraphs 1 to 6.

The New Brunswick Court of Queen's Bench held in any event that the function of the board in allowing the purchasers appeal was an administrative function against which certiorari did not lie. See paragraph 7.

Administrative Law - Topic 1033

Classification of power or function - Functions classified as administrative - Planning appeals - Hearing of an appeal by Provincial Planning Appeal Board from refusal of a building permit by building inspector - The New Brunswick Court of Queen's Bench held that the Board's function was administrative and that certiorari did not lie to review it - see paragraph 7.

Administrative Law - Topic 5003

Certiorari - General principles - When available - Review of decision of Provincial Planning Appeal Board under s. 86(2)(a) (ii) of the Community Planning Act, R.S.N.B. 1973, c. C-12, ordering a building inspector to issue a building permit - The New Brunswick Court of Queen's Bench held that, if the board acted in good faith and its decision could be rationally supported on a construction which the relevant legislation may reasonably be considered to hear, the Court will not intervene - The Court of Queen's Bench refused to set aside the board's order - See paragraphs 1 to 6.

Administrative Law - Topic 5003

Judicial review - Certiorari - When available - The New Brunswick Court of Queen's Bench held that certiorari does not lie to quash an administrative act - See paragraph 7.

Land Regulation - Topic 3202

Land use control - Legislation - Building permits - Issue of building permit on ground that a refusal would result in unreasonable hardship - After a subdivision was created in a village the village was first zoned residential and then an area including the subdivision was rezoned industrial only - After the rezoning the first of the lots in the subdivision was sold to a purchaser, who began to build a house on the lot without a building permit - The building inspector subsequently refused to issue a building permit - The Provincial Planning Appeal Board ordered the building inspector to issue a building permit under s. 86(2)(a)(ii) of the Community Planning Act, R.S.N.B. 1973, c. C-12, on the ground that a refusal would cause the purchaser unreasonable hardship - The New Brunswick Court of Queen's Bench refused to set aside the order - See paragraphs 1 to 6.

Words and Phrases

Unreasonable hardship - The New Brunswick Court of Queen's Bench discussed what constitutes "unreasonable hardship" within the meaning of s. 86(2)(a)(ii) of the Community Planning Act, R.S.N.B. 1973, c. C-12 - See paragraphs 1 to 6.

Cases Noticed:

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses Association (1974), 41 D.L.R.(3d) 6, appld. [para. 5].

Dobson v. Edmonton (1959), 19 D.L.R.(2d) 69, appld. [para. 7].

Re Legare and Calgary Municipal Planning Commission (1972), 28 D.L.R.(3d) 730, appld. [para. 7].

Mckinnon v. Attorney General of Canada (1975), 11 N.B.R.(2d) 119, appld. [para. 7].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 84, sect. 86, sect. 87 [para. 3].

Counsel:

Douglas A. M. Evans, for the Village of Quispamsis and Mr. Robert J. Kelly;

Deno P. Pappas, Q.C., for Mr. Walter W. Truan and Miss Marie A. Hodgin.

This case was heard on February 5, 1976, in chambers at Saint John, N.B., before Stratton, J., of the New Brunswick Supreme Court, Queen's Bench Division.

On May 17, 1976, Stratton, J. delivered the following judgment: