Sand, Surf and Sea Ltd. v. Nova Scotia (Minister of Transportation and Public Works), 2005 NSSC 233

• Judge: Murphy, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 27, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 233;(2005), 236 N.S.R.(2d) 201 (SC)

Sand, Surf & Sea Ltd. v. N.S. (2005), 236 N.S.R.(2d) 201 (SC);

    749 A.P.R. 201

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. AU.029

Sand, Surf and Sea Limited (applicant) v. The Minister of the Department of Transportation and Public Works for the Province of Nova Scotia (respondent)

(SH 224279; 2005 NSSC 233)

Indexed As: Sand, Surf and Sea Ltd. v. Nova Scotia (Minister of Transportation and Public Works)

Nova Scotia Supreme Court

Murphy, J.

June 27, 2005.

Summary:

The applicant applied for an order of mandamus directing that the Minister of Transportation and Public Works provide consent under s. 42 of the Public Highways Act to the construction of a building within 100 metres of the centre line of a public highway. In the alternative, the applicant requested a declaration that it was unlawful for the Minister to refuse to provide that consent.

The Nova Scotia Supreme Court dismissed the application.

Administrative Law - Topic 3756

Judicial review - Mandamus - Mandamus to public officials and boards - Respecting discretionary powers - [See Administrative Law - Topic 3773 ].

Administrative Law - Topic 3773

Judicial review - Mandamus - Mandamus to public or quasi public corporations, boards and officials - Existence of duty - The applicant applied for an order of mandamus directing that the Minister of Transportation and Public Works provide consent under s. 42 of the Public Highways Act to the construction of a building within 100 metres of the centre line of a public highway - The Nova Scotia Supreme Court dismissed the application - Mandamus was not available to compel the Minister to consent where s. 42(1) of the PHA did not impose a duty to waive requirements and it did not qualify or fetter the decision-maker's discretion - Even if the Minister's discretion under s. 42 was restricted, mandamus would not issue to an applicant seeking an order directing that the discretion be exercised in a particular way - See paragraphs 65 to 70.

Administrative Law - Topic 3806

Judicial review - Mandamus - Practice - Application - General - The applicant applied for an order of mandamus directing that the Minister of Transportation and Public Works provide consent under s. 42 of the Public Highways Act to the construction of a building within 100 metres of the centre line of a public highway - The Minister argued that the application was premature because the applicant had not submitted all of the information/documentation required to complete the application and enable the Minister to exercise his discretion to make an informed decision - The applicant claimed that the Minister was given a complete application containing all information necessary to give consent to build - The Nova Scotia Supreme Court held that it would address the merits of the application now - The applicant had chosen to have its rights finally determined based on the information it had submitted - See paragraphs 16 to 27.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - The applicant applied for an order of mandamus directing the Minister of Transportation and Public Works to provide consent under s. 42 of the Public Highways Act (PHA) to the construction of a building within 100 metres of the centre line of a public highway - The applicant claimed that the Minister's refusal to consent was unfair and amounted to an abuse of discretion, because the Minister created and applied a mandatory standard of conduct which was ultra vires the Minister - The applicant argued that set-back, access, and off-highway parking requirements, which the Minister considered while determining whether to waive the 100 metre setback under s. 42(1) of the PHA, created a mandatory standard of conduct, the application of which constituted improper fettering of ministerial discretion - The Nova Scotia Supreme Court rejected the argument - The evidence did not establish a fettering of discretion by automatic application of unpublished or ultra vires mandatory policies without consideration of the applicant's individual circumstances - See paragraphs 54 to 57.

Administrative Law - Topic 8345

Administrative powers - Review of discretionary powers - Bad faith - [See Crown - Topic 675 ].

Crown - Topic 675

Authority of Ministers - Exercise of - Abuse of office - The applicant applied for an order of mandamus directing that the Minister of Transportation and Public Works provide consent under s. 42 of the Public Highways Act to the construction of a building within 100 metres of the centre line of a public highway on land owned by the applicant - The applicant argued that the Minister acted in bad faith or arbitrarily and that such conduct was demonstrated by the Minister's failure to provide sufficient and timely information to the applicant and by the manner in which the Minister conducted sale negotiations regarding the subject property and adjacent land owned by the Crown, including improper altering of the positions he adopted - The Nova Scotia Supreme Court held that the applicant had not proven dishonesty, malicious or fraudulent behaviour, arbitrariness, or other conduct amounting to bad faith on the part of the Minister - Neither party had always been prompt in providing information, and both had changed positions and explored different solutions during discussions - The evidence did not demonstrate that the Minister abused his authority - See paragraphs 58 to 64.

Crown - Topic 676

Authority of Ministers - Exercise of - Discretionary power - Limitations - [See Administrative Law - Topic 8264 ].

Highways - Topic 4662

Rights of abutting owners - Restrictions - Permit for development - Setback requirements from highway - A building on the applicant's property was destroyed by fire - The applicant wanted to rebuild - The destroyed building, and the proposed location for rebuilding, were both within 100 metres of the centre line of a public highway - The applicant applied for an order of mandamus directing the Minister of Transportation and Public Works to provide consent under s. 42 of the Public Highways Act (PHA) to the construction of a building within 100 metres of the centre line of a public highway - The applicant argued that the Minister failed to consider the non-conforming use provisions in Part VIII of the Municipal Government Act (MGA), which overrode s. 42 of the PHA - The Nova Scotia Supreme Court rejected the argument - Section 42(1) of the PHA did not conflict with the general, broad purpose of Part VIII of the MGA by prohibiting the right to rebuild - Section 42(1) identified and addressed a public safety aspect of highway management by conferring ministerial discretion in setting a restriction on the setback distance of a structure - The co-existence of s. 42(1) of the PHA and Part VIII of the MGA did not lead to absurd or manifestly unreasonable results - See paragraphs 37 to 50.

Land Regulation - Topic 2806

Land use control - Exemptions - Nonconforming use - Reconstruction after destruction - [See Highways - Topic 4662 ].

Cases Noticed:

Karavos v. Toronto and Gillies, [1948] 3 D.L.R. 294 (Ont. C.A.), refd to. [para. 20].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 21].

Smith's Field Manor Development Ltd. v. Halifax (City) (1988), 83 N.S.R.(2d) 29; 210 A.P.R. 29 (C.A.), refd to. [para. 22].

Armoyan Group Ltd. v. Halifax (County) (1994), 129 N.S.R.(2d) 83; 362 A.P.R. 83 (C.A.), refd to. [para. 22].

Rawdon Realties Ltd. v. Rent Review Commission (N.S.) (1982), 56 N.S.R.(2d) 403; 117 A.P.R. 403 (T.D.), refd to. [para. 22].

Saskatchewan (Attorney General) ex rel. Ridge and M.C.C. Design Ltd. v. Saskatchewan Association of Architects (1979), 1 Sask.R. 305; 108 D.L.R.(3d) 441 (Sask. C.A.), refd to. [para. 24].

Ramsay v. Metropolitan Toronto Chief of Police and Metropolitan Toronto Board of Commissioners of Police (1988), 29 O.A.C. 61 (Div. Ct.), refd to. [para. 24].

Devinat v. Commission de l'immigration et du statut de réfugié du Canada, [2000] 2 F.C. 212; 250 N.R. 326 (F.C.A.), refd to. [para. 25].

Sussex Cheese and Butter (1974) Ltd. v. New Brunswick Milk Marketing Board and New Brunswick Dairy Products Commission (1977), 18 N.B.R.(2d) 686; 26 A.P.R. 686 (Q.B.), refd to. [para. 25].

Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, refd to. [para. 29].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 30].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 30].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 30].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al. (2003), 304 N.R. 1; 2003 SCC 28, refd to. [para. 31].

Murphy v. Welsh (1993), 156 N.R. 263; 66 O.A.C. 240 (S.C.C.), refd to. [para. 42].

Associated Picture Houses Ltd. v. Wednesbury Ltd., [1948] 1 K.B. 223, refd to. [para. 45].

Nova Scotia Forest Industries v. Nova Scotia Pulpwood Marketing Board (1975), 12 N.S.R.(2d) 91; 6 A.P.R. 91 (C.A.), refd to. [para. 45].

Tsimiklis v. Nova Scotia Utility and Review Board et al. (2003), 213 N.S.R.(2d) 30; 667 A.P.R. 30; 2003 NSCA 30, dist. [para. 46].

Saint-Romuald (Ville) v. Olivier et al., [2001] 2 S.C.R. 898; 275 N.R. 1, dist. [para. 46].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 52].

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 (S.C.), refd to. [para. 52].

D.D.-T. et al. v. Halifax Regional School Board et al. (2004), 224 N.S.R.(2d) 294; 708 A.P.R. 294; 2004 NSCA 82, refd to. [para. 55].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 60].

Herzig et al. v. Canada et al. (2002), 287 N.R. 105 (F.C.A.), refd to. [para. 66].

Winsor Homes Ltd. v. St. John's Municipal Council (1978), 20 Nfld. & P.E.I.R. 361; 53 A.P.R. 361 (Nfld. C.A.), refd to. [para. 66].

Distribution Canada Inc. v. Minister of National Revenue (1990), 39 F.T.R. 127; 36 Admin. L.R. 34 (T.D.), refd to. [para. 67].

Greenhorn v. Law Society of Saskatchewan (1991), 92 Sask.R. 72; 81 D.L.R.(4th) 712 (Q.B.), refd to. [para. 67].

Statutes Noticed:

Municipal Government Act, S.N.S. 1998, c. 18, sect. 190, sect. 191, sect. 239, sect. 240, sect. 241, sect. 263 [para. 36].

Public Highways Act, R.S.N.S. 1989, c. 371, sect. 42(1) [para. 35].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (3rd Ed. 2001), pp. 91 [para. 62]; 202 [para. 24].

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (Looseleaf), vol. 1, §§ 1:3100 [para. 19]; 1:3210 to 1:3240 [para. 23].

Hogg, Peter W., and Monahan, Patrick, J., Liability of the Crown (3rd Ed. 2000), pp. 41, 42 [para. 19].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (4th Ed. 2004), pp. 176 [para. 61]; 514 [para. 31]; 585 [para. 28].

Rogers, Ian MacF., Canadian Law of Planning and Zoning (2nd Ed), § 6.2.1 [para. 44].

Counsel:

Charles J. Ford, for the applicant;

Catherine Jean Lunn, for the respondent.

This application was heard on February 9 and 10, 2005, at Halifax, Nova Scotia, before Murphy, J., of the Nova Scotia Supreme Court. The decision of Murphy, J., was delivered orally on June 27, 2005, and the following written decision was filed on August 18, 2005.