Richmond County (Municipality) v. Nova Scotia (Attorney General) et al., (2016) 370 N.S.R.(2d) 210 (CA)

• Judge: MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 28, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 370 N.S.R.(2d) 210 (CA);2016 NSCA 11

Richmond County v. N.S. (A.G.) (2016), 370 N.S.R.(2d) 210 (CA);

    1165 A.P.R. 210

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.044

Municipality of the County of Richmond (appellant) v. Attorney General of Nova Scotia and Nova Scotia Utility and Review Board (respondents) and Rod Samson, Alvin Martell, Steve MacNeil and Steve Sampson (intervenors)

(CA 442005; 2016 NSCA 11)

Indexed As: Richmond County (Municipality) v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A.

February 23, 2016.

Summary:

As prescribed by the Municipal Government Act (MGA), the Utility and Review Board conducted an octennial review of the number of councillors that were appropriate for the Municipality of Richmond. After hearing evidence and weighing the criteria stated in the MGA, the Board reduced the number from 10 to five. The Municipality appealed the Board's ruling.

The Nova Scotia Court of Appeal dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - As prescribed by the Municipal Government Act (MGA), the Utility and Review Board conducted an octennial review of the number of councillors that were appropriate for the Municipality of Richmond - After hearing evidence and weighing the criteria stated in the MGA, the Board reduced the number from 10 to five - The Municipality appealed the Board's ruling stating four grounds - The Municipality also submitted that the Board's decision offended the principles stated in Reference re Provincial Electoral Boundaries (Saskatchewan) (1991 SCC) ("Carter") - In Carter, the Supreme Court determined whether variances among the size of voter populations in Saskatchewan violated s. 3 of the Charter - The Nova Scotia Court of Appeal stated that the Board's interpretation and application of the MGA, its home legislation for municipal matters, presumptively was subject to reasonableness review by the court - Nothing had rebutted that presumption - The court stated that it would apply correctness to the Municipality's submission on the Carter decision - Reasonableness governed the other issues - See paragraphs 16 to 25.

Administrative Law - Topic 9069

Boards and tribunals - Jurisdiction of particular boards and tribunals - Energy and utility boards - [See first and third Municipal Law - Topic 205 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Scope of review - [See Administrative Law - Topic 3202 ].

Municipal Law - Topic 205

Councils - General principles - Number of councillors - As prescribed by the Municipal Government Act (MGA), the Utility and Review Board conducted an octennial review of the number of councillors that were appropriate for the Municipality of Richmond - After hearing evidence and weighing the criteria stated in the MGA, the Board reduced the number from 10 to five - The Municipality appealed the Board's ruling - The Municipality submitted that the Board erred by failing to apply a threshold criterion not mentioned in the MGA, namely the Council's desired style of governance - The Nova Scotia Court of Appeal disagreed - The Board balanced the criteria stated in s. 368(4) of the MGA - That was the Board's assignment - The Board's findings on the balancing exercise were supported by the evidence - The Board's application of the criteria, its findings and conclusions, occupied the range of permissible outcomes within the Board's discretion under ss. 368 and 369 of the MGA - See paragraphs 26 to 38.

Municipal Law - Topic 205

Councils - General principles - Number of councillors - As prescribed by the Municipal Government Act (MGA), the Utility and Review Board conducted an octennial review of the number of councillors that were appropriate for the Municipality of Richmond - After hearing evidence and weighing the criteria stated in the MGA, the Board reduced the number from 10 to five - The Municipality appealed the Board's ruling - The Municipality submitted that the Board's decision offended the principles stated in Reference re Provincial Electoral Boundaries (Saskatchewan) (1991 SCC) ("Carter") - In Carter, the Supreme Court determined whether variances among the size of voter populations in Saskatchewan violated s. 3 of the Charter - The Nova Scotia Court of Appeal stated that "The Municipality does not make a Charter argument. Section 3 of the Charter doesn't apply to municipal elections. The Municipality cites Charter values, i.e. the constitutional principle of effective representation, to support its interpretation of the statutory criteria that governed the Board's analysis. As explained earlier, this submission attracts correctness. The Municipality's Carter submission is unpersuasive. Section 368(4), enacted seven years after Carter, basically synopsizes Carter's factors for effective representation. The Board's test incorporates the gist of Justice McLachlin's approach - that deviations from voter parity should not be countenanced unless they are justified based on those factors. The Board cited Carter as guidance. The Board's interpretation of the MGA's criteria is consistent with Carter's principles" - See paragraphs 39 to 41.

Municipal Law - Topic 205

Councils - General principles - Number of councillors - As prescribed by the Municipal Government Act (MGA), the Utility and Review Board conducted an octennial review of the number of councillors that were appropriate for the Municipality of Richmond - After hearing evidence and weighing the criteria stated in the MGA, the Board reduced the number from 10 to five - The Municipality appealed the Board's ruling - The Municipality submitted that the Board had usurped the Municipality's exclusive jurisdiction to decide between a warden model and a mayoralty - The Municipality said that, by reducing the number of councillors, the Board effectively forced the Municipality to become a mayoralty, to increase the elected number, which invaded the Council's exclusive jurisdiction under s. 12(8) of the MGA - The Nova Scotia Court of Appeal disagreed - The Board quoted s. 12(8) and noted that the decision whether to become a mayoralty was for the Municipality - The Board said it was not determining the warden/mayor issue - The Board confined its ruling to the number of councillors and boundaries of polling districts, as directed by ss. 368 and 369 of the MGA - Whether Richmond should have a warden or mayor remained for Council to decide under s. 12(8) - See paragraphs 42 to 46.

Cases Noticed:

Reference Re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; 127 N.R. 1; 94 Sask.R. 161, refd to. [para. 19].

International Association of Fire Fighters, Local 268 v. Adekayode et al., [2016] N.S.R.(2d) TBEd. FE.025; 2016 NSCA 6, refd to. [para. 19].

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. 21].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 21].

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. 21].

Halifax (Regional Municipality) v. Canadian Union of Public Employees, Local 108 (2011), 303 N.S.R.(2d) 156; 957 A.P.R. 156; 2011 NSCA 41, refd to. [para. 21].

Coates v. Sharp et al. (2013), 329 N.S.R.(2d) 264; 1042 A.P.R. 264; 2013 NSCA 52, refd to. [para. 21].

Delport Realty Ltd. et al. v. Halifax (Regional Municipalities) (2014), 343 N.S.R.(2d) 341; 1084 A.P.R. 341; 2014 NSCA 35, refd to. [para. 21].

Egg Films Inc. v. Labour Board (N.S.) et al. (2014), 343 N.S.R.(2d) 204; 1084 A.P.R. 204; 2014 NSCA 33, refd to. [para. 25].

Halifax (Regional Municipality), Re, 2004 NSUARB 11, refd to. [para. 34].

Statutes Noticed:

Municipal Government Act, S.N.S. 1998, c. 18, sect. 12(8) [para. 43]; sect. 368(1), sect. 368(3) [para. 22]; sect. 368(4) [para. 26]; sect. 369 [para. 22].

Counsel:

D. Bruce Clarke, Q.C., and Jennifer Huygen, for the appellant;

Edward A. Gores, Q.C., for the respondent, AGNS, not appearing;

Bruce Outhouse, Q.C., for the respondent, NSUARB, not appearing;

Rod Samson, Steve MacNeil and Steve Sampson, intervenors;

Alvin Martell, intervenor, not appearing.

This appeal was heard on January 28, 2016, in Halifax, N.S., before MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Fichaud, J.A., on February 23, 2016.