Sand, Surf and Sea Ltd. v. Nova Scotia (Minister of Transportation and Public Works), 2006 NSCA 90

• Judge: MacDonald, C.J.N.S., Saunders and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 14, 2006
• Jurisdiction: Nova Scotia
• Citations: 2006 NSCA 90;(2006), 247 N.S.R.(2d) 70 (CA)

Sand, Surf & Sea Ltd. v. N.S. (2006), 247 N.S.R.(2d) 70 (CA);

    785 A.P.R. 70

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. JL.013

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

(CA 254811; 2006 NSCA 90)

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

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Hamilton, JJ.A.

July 21, 2006.

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, in a decision reported 236 N.S.R.(2d) 201; 749 A.P.R. 201, dismissed the application. The applicant appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The applicant's building at the intersection of two public highways burned down - The Halifax Regional Municipality indicated that the applicant could build under the nonconforming use provisions of the Municipal Government Act (MGA) - The Minister of Transportation and Public Works refused to consent to the rebuilding under s. 42(1) of the Public Highways Act (PHA) - The applicant applied for an order of mandamus, arguing that the Minister was precluded from exercising his discretion to refuse consent under s. 42(1) of the PHA because of the nonconforming sections of the MGA - The applicant argued further that the Minister fettered his discretion by blindly following departmental guidelines and acted in bad faith in exercising his discretion to withhold consent - A motions judge, reviewing the s. 42(1) issue on the correctness standard and the other two issues on the reasonableness simpliciter standard, dismissed the application - The applicant appealed - The Nova Scotia Court of Appeal dismissed the appeal - The court held that the motions judge applied the correct standard of review - As to the standard to be applied on appeal, the court stated that "... on findings of fact and inferences the judge's findings and inferences are not to be disturbed unless they are the result of palpable and overriding error. On questions of law, the standard of review is one of correctness. On questions of mixed fact and law, the standard of review is one of palpable and overriding error unless the error arose from an error of law, in which case the correctness standard applies" - See paragraphs 14 to 30.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - The applicant's building at the intersection of two public highways burned down - The Halifax Regional Municipality indicated that the applicant could build under the nonconforming use provisions of the Municipal Government Act - The Minister of Transportation and Public Works refused to consent to the rebuilding under s. 42(1) of the Public Highways Act - The applicant applied for an order of mandamus, arguing that the Minister unlawfully fettered his discretion by blindly following departmental policy with respect to building set back requirements which prevented the applicant from rebuilding in the location it applied for - A motions judge dismissed the application - The applicant appealed - The Nova Scotia Court of Appeal dismissed the appeal where the motions judge made no palpable or overriding error - The trial judge was entitled to draw an inference from the evidence before him that the Minister did not treat as mandatory or follow blindly without the exercise of discretion, the set back policy - See paragraphs 40 to 44.

Administrative Law - Topic 8345

Administrative powers - Review of discretionary powers - Bad faith - The applicant's building at the intersection of two public highways burned down - The Halifax Regional Municipality indicated that the applicant could build under the nonconforming use provisions of the Municipal Government Act - The Minister of Transportation and Public Works refused to consent to the rebuilding under s. 42(1) of the Public Highways Act - The applicant applied for an order of mandamus, arguing that the Minister acted for an improper purpose without regard to relevant considerations (i.e., arbitrarily) and therefore made the decision in bad faith - A motions judge dismissed the application - The applicant appealed -The Nova Scotia Court of Appeal dismissed the appeal - The court stated that the applicant did not satisfy the court that the motions judge failed to consider the appropriate evidence in reaching his decision that the Minister did not act in bad faith - See paragraphs 45 to 53.

Crown - Topic 675

Authority of Ministers - Exercise of - Abuse of office - [See Administrative Law - Topic 8345 ].

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 - The applicant's building at the intersection of two public highways burned down - The Halifax Regional Municipality indicated that the applicant could build under the nonconforming use provisions of the Municipal Government Act (MGA) - The Minister of Transportation and Public Works refused to consent to the rebuilding under s. 42(1) of the Public Highways Act (PHA) - The applicant applied for an order of mandamus directing the Minister to provide consent under s. 42 - The Halifax Regional Municipality argued that the Minister was precluded from exercising his discretion under s. 42(1) of the PHA because the nonconforming sections of the MGA permitted the applicant to rebuild in the original location - The municipality claimed that there was a conflict between s. 42(1) of the PHA and the nonconforming use sections of the MGA such that s. 263 of the MGA would apply to oust the Minister's discretion under s. 42(1) - A motions judge held that the Minister was not precluded from exercising his discretion under s. 42(1) - The applicant appealed - The Nova Scotia Court of Appeal dismissed the appeal noting that this was not a case of a conflict between two statutes but rather a conflict, if any, between a section in a statute, s. 42(1), and the interpretation given by the municipality to the nonconforming sections of the MGA - The court stated that "section 263 of the MGA, ... does not provide that the MGA prevails when a government department's interpretation of its nonconforming use provisions conflicts with the provisions of another statute, so as to oust the Minister's discretion. It only applies in the event of a conflict between Part VIII of the MGA and another part of the MGA or another statute" - See paragraphs 31 to 39.

Land Regulation - Topic 2806

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

Cases Noticed:

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. 16].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201, refd to. [para. 16].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38, refd to. [para. 17].

Creager v. Provincial Dental Board (N.S.) (2005), 230 N.S.R.(2d) 48; 729 A.P.R. 48 (C.A.), refd to. [para. 18].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 29].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 30].

Tsimiklis v. Nova Scotia Utility and Review Board et al. (2003), 213 N.S.R.(2d) 30; 667 A.P.R. 30 (C.A.), refd to. [para. 37].

Tsimiklis v. Halifax (Regional Municipality) - see Tsimiklis v. Nova Scotia Utility and Review Board et al.

Statutes Noticed:

Municipal Government Act, S.N.S. 1998, c. 18, sect. 263 [para. 32].

Public Highways Act, R.S.N.S. 1989, c. 371, sect. 42(1) [para. 5].

Counsel:

Charles Ford and James MacDuff, articled clerk, for the appellant;

Catherine Lunn, for the respondent.

This appeal was heard on June 14, 2006, at Halifax, Nova Scotia, before MacDonald. C.J.N.S., Saunders and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. Hamilton, J.A., delivered the following reasons for judgment for the court on July 21, 2006.