Oakland/Indian Point Residents Association v. Seaview Properties Ltd. et al., (2008) 266 N.S.R.(2d) 256 (SC)

• Judge: Scaravelli, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 04, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 266 N.S.R.(2d) 256 (SC);2008 NSSC 209

Residents Assoc. v. Seaview Prop. Ltd. (2008), 266 N.S.R.(2d) 256 (SC);

    851 A.P.R. 256

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JL.003

Oakland/Indian Point Residents Association (applicant) v. Seaview Properties Limited and Municipality of the District of Lunenburg (defendants)

(S. Bw. No. 292852; 2008 NSSC 209)

Indexed As: Oakland/Indian Point Residents Association v. Seaview Properties Ltd. et al.

Nova Scotia Supreme Court

Scaravelli, J.

June 27, 2008.

Summary:

Oakland/Indian Point Residents Association brought an application for an order in the nature of certiorari to quash a final plan of subdivision and seven development permits granted to Seaview Properties Ltd. in respect of its property in Lunenburg County. The Association also sought certain declaratory relief in respect of the same property. The respondent, the Municipality of the District of Lunenburg, applied for (i) an order dismissing the Association's application for lack of standing; (ii) an order to convert the Association's application to an action; and (iii) security for costs. Seaview applied to be removed as a party to the Association's application on the basis that the originating application disclosed no cause of action against Seaview.

The Nova Scotia Supreme Court dismissed the Municipality's application and Seaview's application.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - Oakland/Indian Point Residents Association brought an application for an order in the nature of certiorari to quash a final plan of subdivision and seven development permits granted to Seaview Properties Ltd. in respect of its property in Lunenburg County - The Association also sought certain declaratory relief in respect of the same property - The respondent, the Municipality of the District of Lunenburg, argued that although several members of the Association owned land in the area, they were not a party to the application, and, as the Association was an incorporated society that did not own or have an interest in land anywhere in the area or otherwise, it did not have a direct interest in the matter and it lacked standing to bring the application - The Nova Scotia Supreme Court held that the Association had standing to bring the application - The test for determining the issue of standing only required that the applicant be "directly affected" or have a "genuine interest" - The Association had, if not a direct interest, then certainly a genuine interest in the decisions under review - See paragraphs 6 to 15.

Administrative Law - Topic 4602

Judicial review - Declaratory action - Practice - Persons entitled to apply - [See Administrative Law - Topic 3347 ].

Administrative Law - Topic 5402

Judicial review - Certiorari - Practice - Persons entitled to apply - [See Administrative Law - Topic 3347 ].

Administrative Law - Topic 5414

Judicial review - Certiorari - Practice - Parties - What constitutes interested party - [See Administrative Law - Topic 3347 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See Practice - Topic 2208 ].

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - [See Practice - Topic 2487 ].

Practice - Topic 220

Persons who can sue and be sued - Individuals and corporations - Status or standing - Respecting validity of administrative action by public body - [See Administrative Law - Topic 3347 ].

Practice - Topic 2208

Pleadings - Striking out pleadings - Application for - Evidentiary limitations - Oakland/Indian Point Residents Association brought an application for an order in the nature of certiorari to quash a final plan of subdivision and seven development permits granted to Seaview Properties Ltd. in respect of its property in Lunenburg County - The Association also sought certain declaratory relief in respect of the same property - Seaview brought an application pursuant to rule 14.25 and the court's inherent jurisdiction to strike out the Association's application - Seaview submitted that the Originating Notice (Application Inter Partes) disclosed no cause of action against Seaview - It also submitted that an examination of that issue was restricted to an examination of the pleadings only - The Nova Scotia Supreme Court dismissed Seaview's application - The court had discretion to review affidavit evidence where an application was made on the basis that the claim disclosed no reasonable cause of action - That authority was found in rule 14.25(2) and also in the court's inherent jurisdiction - The court concluded that "In reviewing the Application, Affidavit and documentation relating to the Application, I find that Seaview's participation in the proceedings is necessary for the court to effectively adjudicate on issues raised in the pleadings" - See paragraphs 30 to 36.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Practice - Topic 2208 ].

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications, or originating motions - [See Practice - Topic 2208 ].

Practice - Topic 2487

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Application inter partes - Requirement that no material facts be in dispute - Oakland/Indian Point Residents Association brought an application for an order in the nature of certiorari to quash a final plan of subdivision and seven development permits granted to Seaview Properties Ltd. in respect of its property in Lunenburg County - The Association also sought certain declaratory relief in respect of the same property - The respondent, the Municipality of the District of Lunenburg, applied to convert the Association's application into an action on the basis that the issues raised would ultimately lead to a dispute of facts - The Nova Scotia Supreme Court dismissed the Municipality's application - The onus was on the Municipality to demonstrate that the Originating Notice Application did not meet the requirements of rule 9.02 and that there was a "substantial" dispute of facts - As the Municipality had yet to file an affidavit in response to the originating affidavit, the court was unable to examine the extent of the factual dispute in order to make a determination of this issue - A mere blanket assertion of a substantial dispute of fact was insufficient - See paragraphs 16 to 21.

Practice - Topic 2493

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Conversion to or from formal action - [See Practice - Topic 2487 ].

Practice - Topic 8118

Costs - Security for costs - General principles - Nominal plaintiff - Oakland/Indian Point Residents Association brought an application for an order in the nature of certiorari to quash a final plan of subdivision and seven development permits granted to Seaview Properties Ltd. in respect of its property in Lunenburg County - The Association also sought certain declaratory relief in respect of the same property - The respondent, the Municipality of the District of Lunenburg, applied for security for costs - The Municipality argued that the Association was a "nominal applicant", lacking sufficient property to pay costs (rule 42.01(1)(e)) and that the Association's application was frivolous and vexatious (rule 42.01(1)(f)) - The Nova Scotia Supreme Court dismissed the application - The Association was not a nominal plaintiff - It was a long standing organization which had been involved in the planning and development of bylaws - The Association and the members it represented had an interest in the matter before the court - The Municipality had not produced any evidence to indicate that the proceedings were totally without merit - See paragraphs 22 to 29.

Practice - Topic 8120.4

Costs - Security for costs - General principles - Where claim frivolous or vexatious - [See Practice - Topic 8118 ].

Cases Noticed:

Coalition of Citizens for a Charter Challenge v. Metropolitan Authority et al. (1993), 125 N.S.R.(2d) 241; 349 A.P.R. 241 (C.A.), appld. [para. 11].

Mountain Ash Court Property Owners Association et al. v. Dartmouth (City) et al. (1993), 127 N.S.R.(2d) 139; 355 A.P.R. 139 (S.C.), appld. [para. 11].

Heritage Trust of Nova Scotia v. Halifax (Regional Municipality) (2007), 252 N.S.R.(2d) 114; 804 A.P.R. 114; 2007 CarswellNS 91; 2007 NSSC 72, refd to. [para. 14].

Renaud et al. v. Nova Scotia (Attorney General) et al. (2005), 236 N.S.R.(2d) 164; 749 A.P.R. 164; 2005 NSSC 226, refd to. [para. 19].

Goodman Rosen Inc. v. Sobeys Group Inc., 2002 NSSC 264, refd to. [para. 20].

Wall v. Horn Abbott Ltd. - see Wall v. 679927 Ontario Ltd. et al.

Wall v. 679927 Ontario Ltd. et al. (1999), 176 N.S.R.(2d) 96; 538 A.P.R. 96; 1999 CarswellNS 120 (C.A.), refd to. [para. 23].

Haughn et al. v. Halifax Regional Police Service et al. (2001), 197 N.S.R.(2d) 60; 616 A.P.R. 60; 2001 NSSC 117, refd to. [para. 30].

Counsel:

Peter M. Rogers, for Oakland/Indian Point Residents Association;

J.C. Reddy, for the District of Lunenburg;

Kevin Latimer, Q.C., and Andrew Taillon, for Seaview Properties Ltd.

These applications were heard on June 4, 2008, at Liverpool, Nova Scotia, before Scaravelli, J., of the Nova Scotia Supreme Court, who delivered the following decision on June 27, 2008.