R. v. Provincial Foods Inc., (1991) 109 N.S.R.(2d) 209 (ProvCt)

• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: May 28, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 109 N.S.R.(2d) 209 (ProvCt)

R. v. Provincial Foods Inc. (1991), 109 N.S.R.(2d) 209 (ProvCt);

  297 A.P.R. 209

MLB headnote and full text

Her Majesty the Queen v. Provincial Foods Inc.

Indexed As: R. v. Provincial Foods Inc.

Nova Scotia Provincial Court

Batiot, J.P.C.

August 23, 1991.

Summary:

An official of the City of Halifax incor­rectly defined Provincial's business oper­ations on an occupancy permit application. Provincial received the permit and moved their business to Halifax. The city discovered Provincial was not complying with the permit description and commenced a prose­cution alleging Provincial had the wrong permit and was violating a city bylaw.

The Nova Scotia Provincial Court dis­missed the charge.

Land Regulation - Topic 2651

Land use control - Zoning bylaws - Pro­hibited uses - General - Provincial decided to move its business of preparing and selling vegetables to Halifax - A city official defined Provincial's business on an occupancy permit application as "the retail sale of prepared vegetables" - Provincial received an occupancy permit and moved to Halifax - The city then commenced a prosecution alleging the permit did not allow for the preparation of food and that Provincial was violating a bylaw - The Nova Scotia Provincial Court concluded that the phrase used on the application did not permit, per se, the activity of the de­fendant - See paragraphs 14 to 18.

Land Regulation - Topic 2671

Land use control - Zoning bylaws - Permitted uses - Accessory uses - Provin­cial decided to move its business of pre­paring and selling vegetables to Halifax - Provincial received an occupancy permit which described their business as "the retail sale of prepared vegetables" - After Provincial relocated, the city commenced a prosecution alleging the permit did not allow for the preparation of food and that Provincial was violating a bylaw - The Nova Scotia Provincial Court concluded, inter alia, that Provincial violated a city bylaw by occupying the premises for the main purpose of preparing vegetables as opposed to an accessory use - See para­graphs 22 to 26.

Mistake - Topic 5

General - Mistake - Officially induced - An official of the City of Halifax incor­rectly defined a business' operations on an occupancy permit - The city discovered the business did not comply with the per­mit description - The city commenced a prosecution alleging the business did not have the proper permit and was violating a city bylaw - The Nova Scotia Provincial Court dismissed the charge as the error was officially induced - See paragraphs 27 to 35.

Trials - Topic 1111

Summary conviction - Defences - Mistake - Officially induced - [See Mistake - Topic 65 ].

Words and Phrases

Retail - The Nova Scotia Provincial Court defined retail as a sale directly to the ultimate consumer - See paragraph 12.

Words and Phrases

Wholesale - The Nova Scotia Provincial Court defined wholesale as a sale to a middleman who then sells to a retailer - See paragraph 12.

Cases Noticed:

Wilmot v. Kingston (City), [1945] O.R. 532, refd to. [para. 16].

R. v. Wells (1911), 24 O.L.R. 77, refd to. [para. 19].

Oriole Lumber Ltd. v. Markham (Town­ship) et al., [1968] S.C.R. 549; 69 D.L.R.(2d) 339, refd to. [para. 25].

Provincial Food Company Ltd. v. A.J. Find and Sons Ltd. (1981), 128 D.L.R. (3d) 252 (Ont. C.A.), refd to. [para. 25].

R. v. Flemming (1980), 43 N.S.R.(2d) 249; 81 A.P.R. 249, consd. [para. 29].

R. v. MacDougall, [1982] 2 S.C.R. 605; 54 N.S.R.(2d) 562; 112 A.P.R. 562; 18 M.V.R. 180; 31 C.R.(3d) 1; 1 C.C.C.(3d) 65; 142 D.L.R.(3d) 216; 44 N.R. 560, consd. [para. 32].

R. v. Sault Ste Marie (City) (1978), 21 N.R. 295; 40 C.C.C.(2d) 353 (S.C.C.), consd. [para. 36].

H.L. and M. Shoppers v. Berwick (Town) (1977), 28 N.S.R.(2d) 229; 43 A.P.R. 229; 3 M.P.L.R. 241; 32 D.L.R.(3d) 23, refd to. [para. 36].

Dartmouth (City) v. Ramia (1990), 99 N.S.R.(2d) 50; 270 A.P.R. 50; 73 D.L.R.(4th) 307 (T.D.), refd to. [para. 37].

Statutes Noticed:

Halifax Land Use Bylaw (1978), sect. 2(b) [paras. 10, 22].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed. 1979), pp. 686 [para. 23]; 1182 [para. 15]; 1278 [para. 23].

Rogers, Ian Mac F., Q.C., Canadian Law of Planning and Zoning p. 20.4 [para. 16].

Shorter Oxford English Dictionary On Historical Principles (3rd Ed.), vol. I, p. 1044 [para. 23]; vol. II, pp. 1813 [para. 15]; 2170 [para. 24].

Counsel:

Nadine M. Smillie, for the Crown;

Winston B. Cole, for the defendant.

This case was heard on May 28, 1991, at Halifax, N.S., before Batiot, J.P.C., of the Nova Scotia Provincial Court, who delivered the following judgment on August 23, 1991.