Specter v. Nova Scotia (Minister of Fisheries and Aquaculture) et al., (2011) 307 N.S.R.(2d) 142 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 16, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 307 N.S.R.(2d) 142 (SC);2011 NSSC 333

Specter v. N.S. (2011), 307 N.S.R.(2d) 142 (SC);

    975 A.P.R. 142

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. SE.001

Marian Specter and Herschel Specter (appellants) v. Minister of Fisheries and Aquaculture and Kelly Cove Salmon Ltd. (respondents)

(Hfx. No. 350371; 2011 NSSC 333)

Indexed As: Specter v. Nova Scotia (Minister of Fisheries and Aquaculture) et al.

Nova Scotia Supreme Court

LeBlanc, J.

September 1, 2011.

Summary:

The appellants appealed, pursuant to s. 119 of the Fisheries and Coastal Resources Act, a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses. The Minister and the respondent brought preliminary motions, pursuant to Rule 12 of the Nova Scotia Civil Procedure Rules, seeking to summarily dismiss the appeal on the basis that it was not filed in time and that the appellants lacked standing.

The Nova Scotia Supreme Court dismissed the motions.

Administrative Law - Topic 6108

Judicial review - Statutory appeal - General - Commencement of time in which to appeal or apply for leave to appeal - The appellants appealed a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses - The Minister and the respondent moved to summarily dismiss the appeal on the basis that it was not filed in time - The Nova Scotia Supreme Court discussed the impact of a jurisdictional challenge on timeliness - It stated that "[t]he rule of law requires fidelity to both the spirit and substance of the law. A decision made without jurisdiction is the same as a decision that exceeds jurisdiction. Both types of decisions are unlawful and ultra vires the decision-maker. Both types of decisions are reviewable by courts. ... a statutory time limit does not prohibit a late application for certiorari based on excess or absence of jurisdiction. This does not mean that an appellant can wait forever to bring their appeal and then simply rely on an argument that the decision was ultra vires the decision-maker. Where such an appellant is excessively late, they may be exposed to an argument of laches or undue delay. Nor can an appellant, seeking certiorari, simply avoid a statutory time limit by arguing lack of jurisdiction. There must be an arguable basis for the appellant's contention that the decision-maker exceeded or was without jurisdiction." - See paragraphs 27 to 29.

Administrative Law - Topic 6108

Judicial review - Statutory appeal - General - Commencement of time in which to appeal or apply for leave to appeal - The appellants appealed a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses - The Minister and the respondent moved to summarily dismiss the appeal on the basis that it was not filed in time, i.e., within 30 days - The decision issued on March 9, 2011 - The appellants learned of the decision on March 24, 2011 and obtained the details of the decision on May 9, 2011 - The appeal was filed on June 13, 2011 - The Nova Scotia Supreme Court dismissed the motions - There was an arguable basis that the Minister exceeded his jurisdiction - Section 59(2) of the Act stated that "[w]here, in the opinion of the Minister, the proposed amendment is substantial and may have a detrimental impact on other uses of marine resources, the Minister shall follow the procedure set forth for a new license application" - In granting the license amendments, the Minister followed the license amendment procedure in the Act, and not the new license procedure - While the new sites were in the same general geographic location, and of approximately the same size, they all possessed entirely different coordinates; none of the new sites shared any boundaries with the previous sites - There was also evidence that the sites might have a detrimental impact on other uses of marine resources, particularly in the intertidal zone - In these circumstances, there was an arguable case that the amendment procedure was not appropriate, and that the Minister should have followed the procedure for granting new licenses - On this basis, the court found that the appellants' appeal was not untimely - See paragraphs 30 to 32.

Administrative Law - Topic 6108

Judicial review - Statutory appeal - General - Commencement of time in which to appeal or apply for leave to appeal - The appellants appealed a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses - The Minister and the respondent moved to summarily dismiss the appeal on the basis that it was not filed in time, i.e., within 30 days - The decision issued on March 9, 2011 - The appellants learned of the decision on March 24, 2011 and obtained the details of the decision on May 9, 2011 - The appeal was filed on June 13, 2011 - The Nova Scotia Supreme Court followed Brighton v. Nova Scotia (Minister of Agriculture and Fisheries) (N.S.S.C. 2002) and held that the 30 day statutory limitation period in s. 119 of the Fisheries and Coastal Resources Act started on the day that the full reasons for decision, in the form of the complete license(s), were communicated to persons that had been actively involved in the amendment/approval process - Had the appellants filed a motion to extend the limitation period, the court would have granted it - The motions were dismissed on other grounds - See paragraphs 33 to 55.

Administrative Law - Topic 6281

Judicial review - Statutory appeal - Practice - General - The appellants appealed a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses - The Minister and the respondent moved to summarily dismiss the appeal on the basis that the appellants lacked standing - The Nova Scotia Supreme Court dismissed the motions - The value of the appellants' property might be impacted by this decision - The appellants' use of the intertidal zone immediately adjacent to their property might also be impacted by this decision - This potential impact would affect the appellants in ways that were significantly different from the general public - As such, the appellants were "persons aggrieved" within the meaning of s. 119 of the Fisheries and Coastal Resources Act, and they should be granted standing - See paragraphs 56 to 74.

Cases Noticed:

Johnston v. Law Society of Prince Edward Island and Scales (1991), 91 Nfld. & P.E.I.R. 126; 286 A.P.R. 126; 80 D.L.R.(4th) 725; 1991 CanLII 2754 (P.E.I.C.A.), refd to. [para. 18].

Trecothic March, In re (1905), 37 S.C.R. 79, refd to. [para. 21].

Bassett v. Canada et al. (1987), 53 Sask.R. 81; 35 D.L.R.(4th) 537; 1987 CarswellSask 250 (C.A.), refd to. [para. 21].

Cowan et al. v. Aylward et al. (2001), 194 N.S.R.(2d) 6; 606 A.P.R. 6; 2001 NSSC 54, refd to. [para. 22].

Roncarelli v. Duplessis, [1959] S.C.R. 122, refd to. [para. 24].

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. 25].

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, refd to. [para. 35].

Rockwood Community Association Ltd. et al. v. Halifax (Regional Municipality) et al. (2011), 304 N.S.R.(2d) 83; 960 A.P.R. 83; 2011 NSSC 91, refd to. [para. 36].

Eco Awareness Society v. Antigonish (County) et al. (2010), 299 N.S.R.(2d) 175; 947 A.P.R. 175; 2010 NSSC 461, refd to. [para. 36].

Brighton et al. v. Nova Scotia (Minister of Agriculture and Fisheries) et al. (2002), 206 N.S.R.(2d) 95; 645 A.P.R. 95; 2002 NSSC 160, folld. [para. 37].

Skycharter Ltd. et al. v. Canada (Minister of Transport) et al. (1997), 125 F.T.R. 307 (T.D.), refd to. [para. 44].

Silver v. Fulton (2011), 303 N.S.R.(2d) 49; 957 A.P.R. 49; 2011 NSSC 127, refd to. [para. 45].

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 53].

R.K. v. H.S.P. et al. (2009), 274 N.S.R.(2d) 113; 874 A.P.R. 113; 2009 NSCA 2, refd to. [para. 58].

Polycorp Properties Inc. v. Halifax (Regional Municipality) et al., [2011] N.S.R.(2d) Uned. 134; 2011 NSSC 241, refd to. [para. 58].

Friends of the Public Gardens v. Halifax (City) and United Equities Ltd. (1985), 68 N.S.R.(2d) 433; 159 A.P.R. 433; 13 Admin. L.R. 272 (T.D.), refd to. [para. 59].

Oakland/Indian Point Residents Association v. Seaview Properties Ltd. et al. (2008), 266 N.S.R.(2d) 256; 851 A.P.R. 256; 2008 NSSC 209, refd to. [para. 60].

Lord Nelson Hotel Ltd. v. Halifax (City) (1972), 4 N.S.R.(2d) 753; 33 D.L.R.(3d) 98 (C.A.), refd to. [para. 60].

Court v. Environmental Appeal Board (Alta.) (2003), 333 A.R. 308; 2003 ABQB 456, refd to. [para. 64].

Shiell v. Atomic Energy Control Board (Can.) et al. (1995), 98 F.T.R. 75 (T.D.), refd to. [para. 65].

Berg v. British Columbia (Attorney General) (1991), 48 Admin. L.R. 82 (B.C.S.C.), refd to. [para. 65].

Statutes Noticed:

Fisheries and Coastal Resources Act, S.N.S. 1996, c. 25, sect. 119 [para. 15].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (2010 Looseleaf Update), § 4.3443 [para. 59].

Cromwell, Thomas A., Locus Standi: A Commentary on the Law of Standing in Canada (1986), generally [para. 56].

Counsel:

Marc Dunning with Dillon Trider, for the appellants;

Darlene Willcott, for the respondent, Minister of Fisheries and Aquaculture;

A. William Moreira, Q.C., for the respondent, Kelly Cove Salmon Ltd.

These motions were heard at Halifax, Nova Scotia, on August 16, 2011, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on September 1, 2011.