Templeton Place Ltd. v. Delano and Nova Scotia, (1985) 69 N.S.R.(2d) 211 (CA)

• Judge: MacKeigan, Macdonald and Matthews, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 04, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 69 N.S.R.(2d) 211 (CA)

Templeton Place Ltd. v. Delano (1985), 69 N.S.R.(2d) 211 (CA);

    163 A.P.R. 211

MLB headnote and full text

Templeton Place Ltd. v. Delano and Attorney General of Nova Scotia

(S.C.A. 01407)

Indexed As: Templeton Place Ltd. v. Delano and Nova Scotia

Nova Scotia Supreme Court

Appeal Division

MacKeigan, Macdonald and Matthews, JJ.A.

July 4, 1985.

Summary:

A builder constructed a 70 unit apartment building and applied to the Deputy Registrar of Condominiums to register the building as a condominium. The application was refused. The builder applied for an order of mandamus to compel the Deputy Registrar to register the building.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported (1985), 65 N.S.R.(2d) 399; 147 A.P.R. 399, allowed the application and declared that the building could be registered. The Deputy Registrar and the province appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal and set aside the trial judge's decision. The court held that the declaration was fatally defective procedurally and jurisdictionally and also could not be substantively supported.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person, s. 7 - The Nova Scotia Court of Appeal stated that "although it is not necessary for us to comment, I doubt whether any property rights such as the 'liberty' to alienate are enshrined in s. 7" - See paragraphs 33 to 35.

Land Regulation - Topic 3883

Land use control - Condominiums - Conversion of rental property - What constitutes - The builder of a 70 unit apartment building applied to register it as a condominium - The application was refused on the ground that registration would constitute a conversion of rental property contrary to the Real Property Conversion Act, the Condominium Act and Regulations under both Acts - The Nova Scotia Supreme Court, Trial Division, ordered that registration take place, because there was no prohibited conversion - On appeal, the Nova Scotia Court of Appeal reversed the trial judge, because registration was clearly inconsistent with the Regulations under the Rental Property Conversion Act - See paragraphs 11 to 15.

Practice - Topic 5660

Judgments and orders - Declaratory judgments - Notice to interested persons - The Nova Scotia Court of Appeal held that a declaration was fatally defective procedurally and jurisdictionally, where the originating notice gave no notice of intention to apply for the declaration, there was non-compliance with Civil Procedure Rule 9.02 and there was a substantial dispute as to the facts - See paragraphs 11 to 15.

Real Property - Topic 162

Incidents of ownership - Right of alienation - The Nova Scotia Court of Appeal stated that "although it is not necessary for us to comment, I doubt whether any property rights such as the 'liberty' to alienate are enshrined in s. 7" of the Canadian Charter of Rights and Freedoms - See paragraphs 33 to 35.

Statutes - Topic 5518

Operation and effect - Delegated legislation - Orders-in-council - Validity - The Nova Scotia Court of Appeal stated that "Orders-in-council exclusively of a legislative nature, where the Governor in Council purports to exercise a power specifically delegated to him by the Legislature by statute, are not challengeable by certiorari any more than are the statutes themselves" - See paragraph 27.

Cases Noticed:

Pacific Investments Limited v. Delano and Province of Nova Scotia (1983), 57 N.S.R.(2d) 427; 120 A.P.R. 427, affd. 62 N.S.R.(2d) 365; 136 A.P.R. 365 (C.A.), refd to. [para. 7].

Lord Nelson Hotel Ltd. v. Halifax (1972), 4 N.S.R.(2d) 753 (C.A.), refd to. [para. 15].

Operation Dismantle Inc. et al. v. Canada (1985), 60 N.R. 1 (S.C.C.), refd to. [para. 26].

Statutes Noticed:

Rental Property Conversion Act, S.N.S. 1982, c. 14, sect. 9(1), sect. 9(2) [para. 4].

Condominium Act, S.N.S. 1970-71, c. 12, generally [para. 1].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 33].

Rental Property Conversion Act Regulations, Reg. 255-82, sect. 1 [para. 5]; Reg. 252-83 [para. 10].

Rules of Court (N.S.), Civil Procedure Rule, rule 9.02 [para. 13].

Authors and Works Noticed:

Reid and David, Administrative Law and Practice (2nd Ed.), p. 423 [para. 15].

Driedger, E.A., The Construction of Statutes (2nd Ed.), pp. 303-334 [para. 28]; 329 [para. 29].

Counsel:

Linda D. Garber, for the appellants;

Joel E. Fichaud, for the respondent.

This appeal was heard on May 21, 1985, before MacKeigan, Macdonald and Matthews, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On July 4, 1985, MacKeigan, J.A., delivered the following judgment for the Court of Appeal.