Nova Scotia (Attorney General) v. Nova Scotia (Municipal Affairs)

Nova Scotia (Attorney General) v. Nova Scotia (Municipal Affairs) Court Court of Appeal Date 1996-05-21 Citation 1996 NSCA 127 Docket 122478, CA 122436 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Roscoe, Elizabeth A. (Honourable Justice) (CA); Hallett, J. Doane (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 122436 C.A. No. 122478 NOVA SCOTIA COURT OF APPEAL Cite as: Nova Scotia (Attorney General) v. Nova Scotia (Municipal Affairs), 1996 NSCA 127 Hallett, Freeman and Roscoe, JJ.A. BETWEEN: THE ATTORNEY GENERAL OF NOVA ) ) Appellant ) Attorney General not appearing ) - and - ) ) Peter M. Rogers for ) the Respondent THE HONOURABLE SANDY JOLLY, ) The Municipality Minister of Municipal Affairs, and THE ) MUNICIPALITY OF THE COUNTY OF ) Gary A. Richard for COLCHESTER ) Canada Life ) Respondents ) Robert G. Grant and ) Nancy G. Rubin - and - ) for Sobeys ) THE CANADA LIFE ASSURANCE ) COMPANY ) ) Appellant/ ) Appeal Heard: Applicant ) April 16, 1996 ) - and - ) Judgment Delivered: ) May 21, 1996 ) SOBEY LEASED PROPERTIES LIMITED ) and SOBEYS INC. ) ) Respondents/ ) (Third Parties) ) ) THE COURT: Appeal dismissed per reasons for judgment of Hallett, J.A.; Freeman and Roscoe JJ.A. concurring. HALLETT, J.A.: This is an appeal from a decision of a justice of the Supreme Court of Nova Scotia sitting in Chambers. He granted an application made by the Municipality of the County of Colchester and the third parties, Sobey Leased Properties Limited and Sobeys Inc. for an Order striking the supplemental return filed by the Minister of Municipal Affairs in connection with a pending certiorari application of Canada Life Assurance Company to quash the Minister's approval of a land-use by-law of the Municipality. The supplemental return consists of a series of letters exchanged between the Deputy Minister of Municipal Affairs and the Minister with the solicitor for the Town of Truro and the Warden of the Municipality of the County of Colchester. This correspondence occurred subsequent to the Minister's approval of the Municipality's land use by-law on November 18th, 1994. Canada Life asserts that in approving the Municipality's land use by-law the Minister failed to properly exercise the power conferred on her by s. 65 of the Planning Act, R.S.N.S. 1989, c. 346 in that she failed to direct her attention as required by s. 65(2)(d) to provisions of the land use by-law which Canada Life says conflicts with the provincial interest in controlling the effects of flooding in the Robie Street area of the Municipality as evidenced by the Flood Damage Reduction Program (FDRP) brought into existence pursuant to an agreement made between the Province and the Government of Canada which was in force at the time the Minister approved the Municipality's land use by-law. Pursuant to the agreement the first step in developing effective methods of cutting the public cost of flooding is to identify and map flood prone areas. The mapping has been done with respect to the flooding in the Robie Street area of Central Colchester caused by floods from the Salmon River. The mapping identifies areas that could expect to be flooded once in every 20 years. These are designated "floodway" and areas that could expect to be flooded once in every 100 years are designated as the "floodway fringe". The mapping would indicate that the Truro Mall owned by Canada Life is located in a floodway fringe but land owned by Canada Life and abutting the land on which the Mall is located is in the floodway. While Sobeys' Fundy Trail Mall appears to be located in the floodway fringe, it too is surrounded by land designated floodway. Part of the lot on which the Fundy Trail Mall is located is in the area designated floodway. It is alleged by Canada Life that the Municipality's land use by-law allows for greater development on that part of Robie Street which is outside the Town of Truro's boundary than that which is permitted by the Town's land use by-law. This fact is not in dispute. The Town land use by-law conforms to the mapping provisions made under the FDRP and, thus, further development in the lands adjacent to the existing Mall of Canada Life is severely restricted as adjacent lands are in the floodway. On the other hand, the Municipality's land use by-law allows development on a lot on which there is an existing structure despite the fact that part of the lot is located within the area designated as floodway. The Fundy Trail Mall owned by Sobeys is on the Municipality's side of the line. It competes with Canada Life's Mall which is located within the Town boundary and within one-half of a mile of the Fundy Trail Mall. Both are on Robie Street in what is known as the Lower Truro area. Sobeys and the Municipality oppose the application for certiorari. The correspondence which forms the supplemental return starts with a letter of March 29th, 1995, from the Town of Truro's solicitor to the Deputy Minister of Municipal Affairs in which he points out that the Minister's approval of the Municipality's planning strategy and land use by-law created an uneven playing field when it came to competing for development between the Town and the Municipality. Truro's solicitor requests that he be advised what steps the Department intended to take to rectify the situation. On May 1st, 1995, the Deputy Minister responded to the Town's solicitor; he acknowledged that the Department had been made aware that the floodplain zoning in the Lower Truro area of the Municipality does not reflect the flood risk areas as identified under the FDRP and that this was not obvious from reading the municipal planning strategy and land use by-law of the Municipality which had been approved by the Minister. The letter ended with the hope that the Municipality would make the necessary changes to its planning documents. On May 12th, 1995, the Town's solicitor again wrote the Deputy Minister with respect to the latter's letter of May 1st. He disagreed with the Deputy's view that the discrepancies were not apparent from a reading of the municipal planning strategy and land use by-law. He pointed out that the discrepancy had been mentioned at a public meeting held at Truro at which a member of the Minister's staff was present. This was prior to the Minister's approval. The solicitor asked on behalf of the Town Council that a meeting be arranged on an urgent basis with the Minister or appropriate staff to discuss the matter. On June 5th, 1995, the Warden for the Municipality wrote the Minister of Municipal Affairs. Apparently he had been advised that the Department of Municipal Affairs did not propose to participate in the certiorari proceedings that had been commenced by Canada Life to have the court judicially review the Minister's approval of the Municipality's land use by-law. The Warden was of the opinion that as the proceedings sought an order to quash Minister approval that the Minister should care enough about the matter to participate in the legal proceedings. The Warden stated in his letter: "....Surely the Municipalities ought to expect the Minister to uphold the finality of a Ministerial decision which has been signed and advertised or, if a mistake has been made, to take appropriate corrective actions." The most critical letter from the point of view of Canada Life is the response by the Minister on June 8th, 1995, to the Warden's letter of June 5th, the full text of which is as follows: Re: Floodway Designation and Zoning in the Lower Truro Area I am replying to your letter dated June 5, 1995. By previous correspondence from our Deputy Minister dated January 13, 1995, your Chief Administrative Office, Andrew Beckett, was informed that a certain portion of the floodway, as designated under the Canada/Nova Scotia Flood Damage Reduction Program, has not been properly applied in the Lower Truro area of the Colchester Municipal Planning Strategy and Land Use Bylaw. In that letter the Deputy Minister suggested that the County Council should consider amending the floodplain zoning to make it consistent with the Program. This has not been done. The Province is an active participant in the Canada/Nova Scotia Flood Damage Reduction Program and is continuing in the effort to ensure development does not occur in a known floodway. The Program has been identified as a provincial interest under the Planning Act and is considered in approving planning documents pursuant to the Act. Your staff were aware of the Department's position. We have taken action in the past to ensure compliance with the program and would have in this case if I had been aware of the discrepancy at the time of approval. Our policy has been, and continues to be, to require municipalities to adhere to the floodplain mapping and prevent development from occurring within the 1 in 20 year floodway. the only exception to this is for existing development. In this case the floodway designation should be applied up to the normal yard requirements of the building envelope, which is usually 20 to 30 feet around the structure. Our purpose in applying this strict policy is to prevent the financial and emotional hardship that flood damage can bring. We know there will be difficulties. People want to be able to develop their land. We believe the difficulties now in controlling development in these flood prone areas are minor compared to the later problems the municipality will face when a flood disaster occurs. In addition, by preventing development from locating in a floodway, the flood profile will remain constant and known. If new development occurs, the floodway is likely to expand causing flooding in new areas that had not been subject to flooding before. My staff have reviewed your planning documents and find that municipal council policy on floodway areas, as expressed in policy 17 of the Municipal Planning Strategy, is generally consistent with our own. Specifically, policy 17 of the Municipal Planning Strategy states: It shall be the policy of Council to designate the area of floodplain subject to a 1 in 20 year flood as "Floodway", ... The exception to this policy are lots or portions of lots with existing structures located within the floodway... . This policy has been applied in the Generalized Future Land Use Map throughout the plan area in a manner consistent with our policy, with the exception of the Lower Truro area. Unfortunately, this was not identified in the staff review of the documents prior to Ministerial approval. I can only conclude that this was an oversight and would urge your Council to make the appropriate amendments to the Environmental Conditions Map, the Generalized Future Land Use Map and the Zoning Map as quickly as possible. My staff are available to assist if your staff wish to discuss where the floodway boundaries should be drawn. In closing, I want to raise the issue of liability and compensation for flood damage should a disaster occur. It is our concern that a municipality could be liable for flood damage compensation if it was aware that an area was susceptible to flooding and had not taken steps to prevent flood damage from occurring. My advice to your Council would be to make appropriate amendments. The present lawsuit might not have been commenced if these steps had been taken in response to the Deputy Minister's letter of January 13." {Emphasis added} On September 8th, 1995, the solicitor for the Town again wrote the Minister advising her that at a special meeting of the Municipality's Council approval was granted to Sobeys for an expansion of its Mall. The Town solicitor advised the Minister that the Town would appeal that decision to the Nova Scotia Utility and Review Board. In the September 8th letter he stated: "It is our understanding that the Colchester County, M.P.S. was approved in error by you and your department without the realization that it did not conform to the so-called "Ministers Red Line" as established by the Flood Plain Reduction Study. Do you now intend to take action to correct the mistake to now stop development in the area of the Flood Plain as agreed to in the Federal and Provincial Agreement signed as a result of the original study? . . . . . We presently have two different standards for development in the flood plain, one for Colchester and a more restrictive policy for the Town of Truro. This is an unfair situation which should not continue. I would appreciate your early response in order that it might be conveyed to the Town Council of the Town of Truro." On September 18th, 1995, the Minister responded to the Town solicitor's letter taking exception to the remark that the Department had been doing nothing to correct the situation. The Minister pointed out that there had been meetings between the staffs of the Department, the Municipality and the Town to try to develop New Map Lines in the Lower Truro area on a co-operative basis and that if that endeavour failed the Minister would "consider other options". The Chambers judge's decision In the course of his judgment striking the supplemental return, the learned Chambers judge stated that Civil Procedure Rule 56.08, which describes what shall constitute "the record" for the purpose of review by the Supreme Court, did not contemplate a review of a decision of a Minister of the Crown but of a judicial or quasi-judicial tribunal. This comment was in keeping with the comments made by Mr. Justice Freeman in Waverley (Village Commissioners) v. Kerr (1994), 129 N.S.R. (2d) 298 at p. 306. The operative part of the Chambers judge's decision on the application to strike the supplemental return is spelled out in the following words: "The letters are documents which are dated subsequent to the Minister's decision. As stated in the Board of Education of Lincoln County v. Information & Privacy Commissioner (1994), 76 O.A.C. 235 at 237 "the record that goes before the court hearing an application for judicial review should essentially be the material that was before the Commissioner". According to the Ontario Divisional Court the one exception to the rule is the reasons for the decision. The letters in the supplemental return which were to the persons connected with the municipalities are not reasons. They do not explain the Minister's decision. There is no reference to the basis on which the Minister arrived at her decision. One letter suggests the Minister, after making the decision, assumed a position different from that expressed in her decision. This is not relevant to the question of jurisdiction, to the element of fairness or to an error in law on the face of the record. It could be said to be the perception, if not the fact, that permitting persons to file the documents in the supplemental return permits them to create their own record with documents not in existence at the time of the decision. That would be an undesirable perception. Furthermore the parties are not able to attempt to refute the information in the supplemental return. If the information was advanced by affidavit, the interested parties may be in a position to test the information by cross-examination. The supplemental return consists of documents which have no relevance to the decision made on November 19, 1994. They are not necessary to deal with the Minister's jurisdiction, the element of fairness or to an error in law on the face of the record. The supplemental return is struck." Background Canada Life's application in the nature of certiorari which has not yet been heard due to the various preliminary motions brought by the parties is on the following grounds: "(i) The approval by the Minister was ultra vires as the statutory proscription at Section 65(2)(d) of the Planning Act, R.S.N.S. 1989, c. 346 (to wit; that the Minister had declared municipal adherence to floodway boundaries established under the Federal-Provincial Flood Damage Reduction Program to be a provincial interest) barring the exercise of her power to approve the land use bylaw was extant at the time she gave her approval. (ii) In the alternative, the Minister abused her discretion under Section 65(2) of the Planning Act, R.S.N.S. 1989, c. 346, by ignoring or failing to take proper account of the provision limiting her discretion contained in clause (d) of that Section. (iii) In the alternative, the Minister abused her discretion under Section 65(2) of the Planning Act, R.S.N.S. 1989, c. 346, by acting arbitrarily and capriciously in approving the Central Colchester Land Use Bylaw despite the Land Use Bylaw's conflict with Section 65(2) whereas she rejected earlier land use bylaws from other municipalities on the same basis of this same conflict. (iv) In the alternative, the Minister erred in law in her consideration of the effect of Section 65(2)(d) of the Planning Act, R.S.N.S. 1989, c. 346 on her statutory power to approve the Central Colchester Land Use Bylaw and her subsequent exercise of that power. (v) In the alternative, the Minister failed in her duty to be fair by not considering the provincial interest in requiring municipal adherence to the floodway boundaries established under the Federal-Provincial Flood Damage Reduction Program in the course of her deliberations leading to her approval of the Central Colchester Land Use Bylaw when she had previously considered and applied that provincial interest in considering land use bylaws submitted by other municipalities." Section 65(2) of the Planning Act provides: "65 (2) The Minister shall approve a land-use by-law or amendment thereto submitted to the Minister for approval unless (a) it contravenes or conflicts with the law; (b) it conflicts with an applicable provincial land-use policy or regulation; (c) it does not carry out the intent of the applicable planning strategy or amendment thereto; (d) in the opinion of the Minister, it conflicts with any other provincial interest." {Emphasis added} The litigation process that has ensued following the approval of the Municipality's land use by-law has been protracted, expensive and shows no sign of abating. I will summarize the proceedings briefly. On May 16, 1995, Canada Life brought an application for certiorari to review the Minister's decision. On June 1st the Minister filed the return as required under Civil Procedure Rule 56. The return included the municipal planning strategy for Central Colchester and the land use by-law in issue, correspondence between officials of the municipality and the Department of Municipal Affairs respecting some minor changes required by the Department, a copy of the Truro and area flood risk map distributed by Environment Canada and the Nova Scotia Department of Environment, and a letter from the Department dated November 18, 1994 to the Municipality advising of the approval of the municipal planning strategy and land use by-law. Included in the return was a letter dated January 13, 1995, from the Deputy Minister of Municipal Affairs to the Municipality in which he stated: "It has come to my attention that the floodplain zoning in Lower Truro, as adopted by County Council and approved by the Minister on November 18, 1994, does not reflect the flood risk areas as identified under the Canada-Nova Scotia Flood Damage Reduction Program. As you know, that program mapped areas that are known to be flood prone. I understand that the zoning which was adopted by Council last summer reflects the old zoning of the area put in place prior to the 1988 completion of floodplain mapping for the Salmon River. In all other locations within the central Colchester planning area the new zoning consistently and accurately reflects the floodplain information as mapped under the Flood Damage Reduction Program. I would suggest, in order to be consistent, that County Council consider amending the Floodplain zoning for the Lower Truro area so as to bring it in line with the accuracy levels of the rest of the planning area. Should your staff want to discuss this matter further, please have them contact Peter Newbould at 424-7921. Thank you for considering this issue." The supplemental return was filed on September 19, 1995. It followed the receipt by the Minister of interrogatories from Canada Life. On October 13, 1995, Canada Life filed affidavits of A.A. Pearson, Bill Butler, C. Day, Peter Nelson, Frank Gordon, H.T. Doane and Gary Richards in support of its application for certiorari. On October 31 Sobeys and the Municipality filed an interlocutory notice to strike the supplemental return and portions of the affidavits. This motion was heard by Justice Davison on November 8th. On November 9th he rendered a short decision that he was striking the supplemental return and certain affidavits or portions of affidavits. On November 10, 1995, the Municipality filed an affidavit of Kimberley Patterson. On November 14th a very lengthy affidavit from Crawford MacPherson, the Community Development Co-ordinator for the Municipality was filed by the Municipality in which Mr. MacPherson sets out the history of land use by-laws in effect in the areas subject to flooding from the Salmon River including the area of Lower Truro and setting out the history of the process by which the Municipal Council had passed the municipal planning strategy and land use by-law which was eventually approved by the Minister and which is in issue in this proceeding. The municipal planning strategy and land use by-law are referred to by Mr. MacPherson as the Central Colchester municipal planning strategy and land use by-law as they relate to this particular area of the Municipality. The affidavit in paragraphs 34 and 35 set out a number of ways that properties fronting on Robie Street in the Municipality would be zoned as commercial lands and not as part of a floodway zone and how the municipal planning strategy and land use by-law deal with flood damage reduction. The MacPherson affidavit goes on to state that the officials of the Town and the Municipality are developing a co-operative approach to dealing with the issues involved in the Salmon River floodplain and development of lands in or near the floodplain but that the Council of the Municipality has not yet voted on the recommendation whereas the Council for the Town passed a motion supporting the recommendations of the joint planning staffs on November 6, 1995. The affidavit points out that provincial representatives, including representatives from the flood damage reduction program, have participated in the meetings of the joint planning staff. The recommendations would allow development and building construction to occur within the 1 to 20 year floodway as identified on the FDRP mapping even though this would involve some modest infilling of some of the Salmon River floodplain. On November 15, 1995, Sobeys filed an affidavit of Mr. Douglas Bundy. On November 17th Justice Davison filed further reasons for allowing the application to strike the supplemental return. On November 20th Canada Life filed a notice of appeal from Justice Davison's decision striking the supplemental return. On November 23rd Sobeys filed a notice of motion to strike the certiorari application pursuant to Rule 14.25 as disclosing no cause of action. On January 4th, 1996 a justice of the Supreme Court of Nova Scotia granted the application. His decision was reversed on appeal to this Court by a judgment delivered on April 19th, 1996, on the ground that the certiorari application raised an arguable issue and ought not to have been struck pursuant to Rule 14.25, the arguable issue identified by the Appeal Court being the interpretation of s. 65(2) of the Planning Act. While these judicial proceedings were taking place, Sobeys was in the process of planning for an extension of its Mall and in May of 1995 applied to the Municipality for a development agreement to permit an 18,800 foot expansion of its existing store to bring the total store area to 51,900 square feet. On August 31, 1995, the Municipality approved the entry into a development agreement with Sobeys. Canada Life and the Town appealed the Municipal Council's decision to the Nova Scotia Utility and Review Board. The hearing of that appeal took place on December 11th and 12th, 1995, and by decision dated February 23rd, 1996, the Board ordered the Council to reconsider the matter on somewhat narrow grounds. Both the Municipality and Sobeys have appealed the Board's decision to this Court. The appeal is scheduled to be heard in June of this year. As a result of all these proceedings the initial application by Canada Life to have the Supreme Court review the decision of the Minister to approve the Municipality's land use by-law has not yet been determined, in fact, there is still an outstanding issue as a challenge has been raised as to whether Canada Life has standing to bring such an application. Returning to the issue before us on this appeal, it is relevant to note that in addition to the return filed by the Minister there is a significant amount of evidence by way of affidavit which has been filed in the certiorari proceeding. I will have more to say about this and, in particular, the affidavit of Crawford MacPherson further in this decision. Position of the Appellant In my opinion counsel for Canada Life has properly analyzed the learned Chambers judge's decision to strike the supplemental return. First, the decision is primarily founded on the conclusion that the correspondence, as contained in the supplemental return, was irrelevant to the Minister's decision to approve the Municipality's land use by-law. There were two reasons for the Chambers judge reaching this conclusion: (i) the documents in the supplemental return all post-dated the Minister's decision to approve; and (ii) the letters were not reasons. The learned Chambers judge gave secondary reasons for striking the supplemental return. He concluded that by allowing the filing of the supplemental return a perception could be created that the Minister is creating her own record and that the information in the supplemental return could not be refuted in the same manner as facts set out in an affidavit which could be challenged by the parties opposing the application. Rule 56.08(1) of the Civil Procedure Rules states what shall be filed with the court reviewing a decision of an inferior tribunal: "Upon receiving an originating notice so endorsed, the judge, magistrate, justice or justices, officer, clerk or tribunal, shall return forthwith to the prothonotary the judgment order, warrant, decision or reasons for judgment, together with the process commencing the proceeding, the evidence and all exhibits filed, if any, and all other things in the proceeding, together with the originating notice served upon him, with a certificate endorsed thereon in the following form, 'Pursuant to the accompanying notice I herewith return to this Honourable Court the following papers and documents, that is to say, (i) the judgment, order or decision (or as the case may be) and the reasons therefor; (ii) the process commencing the proceeding and the warrant issued thereon; (iii) the evidence taken at the hearing and all exhibits filed; and (iv) all other papers or documents in the proceeding. And I hereby certify to this Honourable Court that I have above truly set forth all the papers and documents in my custody and power in the proceeding set forth in the originating notice." In short, the position of Canada Life is that the Minister failed to consider whether the Municipality's land use by-law conflicted with the provincial interest in controlling development in the floodplain areas and that the contents of the letters filed in the supplemental return are critical to Canada Life's application for certiorari as the letters show the reason for approving that part of the land use by-law in issue was due to an oversight. Counsel argues that the statement by the Minister in the letter to the Warden is extremely relevant to the position of Canada Life that it has a reasonable apprehension of suffering damage to its property located in the floodway in the event that the development within the floodway on lots where there are existing structures as contained in the Municipality's land use by-law, as approved by the Minister, are allowed to proceed. Relying on the decision of White J. in Board of Education of Lincoln County v. Information & Privacy Commissioner (Ont.) (1974), 76 O.A.C. 235 counsel for Canada Life argues that the subsequent correspondence in the supplemental return should be a part of the record for review by the Supreme Court of Nova Scotia. With respect to the concern of the learned Chambers judge that a decision maker can, subsequent to making a decision, produce a self-serving return, counsel for Canada Life argues that the June 8th letter from the Minister to the Warden should not be categorized as creating a document to justify the decision. He argues that the June 8th letter was written in response to a letter sent by the Warden to the Minister. Therefore he suggests that the perception, of which the learned Chambers judge was concerned, cannot arise on these facts. With respect to the Chambers judge's concern that the evidence in the supplemental return could not be refuted by cross-examination as would be the case if an affidavit had been filed, counsel argues that if an affidavit is seen as a necessary component of a return then such concerns should be embodied in a new Rule. Counsel for Canada Life correctly points out that in Waverley v. Kerr (supra) the Court did not completely rule out discovery of a Minister pursuant to Civil Procedure Rule 18. Therefore, he argues that if the June 5th and June 8th letters between the Warden and the Minister were placed before the Court as exhibits to an affidavit by the Minister, both Sobeys and the Municipality could cross-examine her on the affidavit. He suggests this would be preferable to excluding the evidence from a consideration by the judge hearing the certiorari application. The Minister has not filed such an affidavit. Position of the Respondents Sobeys takes the position that the learned Chambers judge did not apply any wrong principles of law nor does a patent injustice result from his decision to strike the supplemental return. Therefore, this Court should not interfere with the interlocutory decision of the Chambers judge (Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143 (C.A.)) Counsel argues that the letters of June 5th and June 8th, 1995, post-date the commencement of the certiorari application on May 16th, 1995, and as such the Minister's correspondence should be looked upon as an attempt to influence the reviewing court on how her decision could be impugned. He argues that Sobeys was entitled to rely on the Minister's approval and that the Minister, after having approved the land use by-law on November 18th, 1994, was functus. With respect to the Lincoln decision he argues that the case is easily distinguished because the Commissioner, in giving reasons, why he would not reconsider the matter decided in that case, had done so prior to the commencement of proceedings challenging his decision. With respect to the argument by Canada Life that the letters constitute reasons for the decision, counsel for Sobeys argues that they are really an attempt by the Minister to exert political pressure on the Municipality to amend its land use by-law. Sobeys counsel takes the view that the supplemental return was filed on September 18th, 1995, just 12 days subsequent to Canada Life filing interrogatories on the Minister raising a number of questions with respect to her approval of the by-law. He submits that the filing of the supplemental return, including the critical letters of June 5th and June 8th, is not only an attempt to influence the reviewing court but also to avoid the Minister having to answer in court for her decision as would be the case if an affidavit were filed by the Minister. He also argues that pursuant to s. 47 of the Planning Act the Minister has the power to reverse her approval of the land use by-law but that the Minister does not have the political courage to do so. Section 47(1) of the Planning Act provides: "Where the Governor in Council has adopted a provincial land-use policy or regulation and where, in the opinion of the Minister, an existing municipal planning strategy and land-use by-law do not carry out the intent of the policy or regulation, the Minister shall provide for the amendment of the municipal planning strategy or land-use by-law in accordance with this Section to the extent necessary to carry out the policy or regulation." {Emphasis added} It would appear from a review of the Planning Act that if the Minister is of the opinion, as she appears to be, that the land use by-law which she approved conflicts with the provincial interest in controlling development in the floodway in the Lower Truro area, it would be open to her to persuade the Governor-in-Council to adopt a provincial land use policy or regulation pursuant to s. 7 of the Planning Act confirming the Department of Municipal Affair's policy with respect to flood control in the Salmon River area. If this were done and, if, in her opinion, the existing municipal planning strategy and land use by-law of the Municipality which permits further development in the floodway adjacent to Robie Street in the area outside the boundaries of the Town does not carry out the intent of the provincial policy or regulation, she has a duty pursuant to s. 47 of the Planning Act to amend the planning strategy and/or land use by-law to the extent necessary to carry out the provincial policy or regulations made pursuant to s. 7 of the Planning Act. Position of the Municipality Counsel for the Municipality says there are three reasons to exclude the supplemental return. First, the correspondence that constitutes the supplemental return is not relevant to the decision to approve that was made by the Minister on November 18th, 1994. Secondly, the correspondence does not contain reasons for her decision, and finally, the filing of the supplemental return breaches the duty of fairness. Counsel argues that the documents in the supplemental return are irrelevant to the main application for judicial review as the Minister's approval cannot simply be quashed because of her statement in the June 8, 1995, letter to the Warden that there appears to have been an oversight in the approval process. He points out that there had been a detailed review by the Minister's staff of the municipal planning strategy and land use by-law in relation to the floodway concerns prior to the approval and even if a mistake may have been made it is not an abuse of process that warrants the approval being quashed after citizens have relied on it. Counsel for the Municipality acknowledges that supplemental reasons can be made part of the record for review by a superior court but it should only be done in situations where a decision of a judicial body, as opposed to the exercise of a Minister's discretion, is subject to review by the court. In his opinion the letter from the Minister to the Warden serves a political interest, that being to alleviate pressure on the Minister from the Town, as the oversight created political embarrassment for herself and her staff and that she is attempting to shift the problem to the Municipality. He suggests that the Minister's letter of September 18th, 1995, to the solicitor for the Town in which she states that she was at that time considering other options implies that she would consider proceeding under s. 47 of the Planning Act. In short, he says that the letter of June 8th did not contain supplemental reasons for her decision but were political documents and have no place as part of the record before the reviewing court. On the subject of fairness, he suggests that a Minister should not be allowed to create a set of documents to justify a decision. He argues that by allowing a Minister to select what shall constitute the record the court will establish a very dangerous precedent. He also argues that if the letters were to be made a part of the record neither Sobeys nor the Municipality would have an opportunity to challenge the Minister by way of cross-examination as would be the case if an affidavit had been filed. Counsel for the Municipality also takes issue with statements contained in the correspondence and further that the parties who exchanged the correspondence ought to be made available for cross-examination before the Court which cannot be done if the correspondence is considered to be part of the record. Disposition of the Appeal In considering whether the learned Chambers judge's decision to strike the supplemental return should be reversed it is well to bear in mind the limitations on the reach of a superior court when reviewing a decision of a Minister of the Government as this bears on what materials are relevant to the review. In Martineau v. Matsqui Disciplinary Board, [1980] 1 S.C.R. 602 at p. 628 Mr. Justice Dickson, after reviewing various authorities as to the scope of the certiorari remedy, stated: "The authorities, in my view, support the following conclusions: 1. Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers. 2. A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum. That is what emerges from the decision of this Court in Nicholson. In these cases, an applicant may obtain certiorari to enforce a breach of the duty of procedural fairness." An application in the nature of certiorari, of necessity, involves a review of the record of the proceedings in which the decision sought to be reviewed was made. If the application is for a judicial review of a tribunal decision what constitutes the record is resolved by the provisions of Civil Procedure Rule 56.08. Here, however, what is sought to be reviewed is the exercise of a statutory power by a Minister of the Government. It is not so easy to determine what shall constitute the record as Civil Procedure Rule 56.08 was not designed with such a review in mind. In my opinion, this appeal basically turns on whether or not the letter of June 8th, 1995, from the Minister to the Warden can be categorized as supplemental reasons to the Minister's decision made on November 18, 1994, to approve the Municipality's land use by-law. Counsel for the appellant relies primarily on the decision of the Board of Education of Lincoln County v. Information & Privacy Commissioner, (supra). In that case White J. sitting as a motion judge for the Divisional Court cited the following passage from Administrative Law, 5th edition, by David Folkes: "Wherever any body having made a decision which can be questioned by certiorari chooses to disclose the reasons for the decision, whether it could have been compelled to do so or not, and however informal the document embodying the reasons, the decision with the added reasons becomes a 'speaking order' and if an error of law appears in the reasons, certiorari will lie to quash the decision. In R. v. Greater Birmingham Supplementary Benefit Appeal Tribunal, ex parte Khan, the court held that the record included a letter sent by the tribunal subsequent to its decision, at the applicant's request, which explained and expanded the reasons for its decisions. The letter disclosed an error of law, etc. ...." In the Lincoln case the Lincoln County Board of Education asked the Information and Privacy Commissioner for Ontario to reconsider a decision. The Board set out a number of reasons why the Board was of the opinion that he should. The Commissioner responded to their request and gave reasons why he would not reconsider. White J. considered the letters from the Commissioner were supplemental reasons and ordered that they be made part of the record to go before the Divisional Court on the substantive motion for judicial review of the Commissioner's order. White J., after quoting from the Folkes text, to which I have referred, went on to review the Greater Birmingham decision. White J. stated at paragraph 15: "The case mentioned in the foregoing passage by Professor Folkes is R. v. Greater Birmingham Supplementary Benefit Appeal Tribunal, ex p. Khan, [1979] 3 All E.R. 759 (D.C.), a decision of the Queen's Bench Division, sitting as a Divisional Court, consisting of Chief Justice Lord Widfery, and Lords Justices Shaw, and Lloyd. A statutory tribunal has given short reasons for its decision, and then, the concerned person/solicitor wrote to the tribunal, setting out certain questions: and the tribunal wrote to the solicitor setting out certain reasons supporting its decision which had not been contained in its original short reasons; those supporting reasons purported to justify the tribunal's decision. The issue that the Divisional Court dealt with, that is of concern to me, is whether the record before the Divisional Court should include the correspondence between the solicitor and the tribunal, subsequent to the making of the tribunal's decision. This is dealt with in the court's reasons at p. 762: 'There then remains the question of whether that error is one which is apparent on the face of the record. The answer to that question must again be yes. We are not confined to the decision itself. We can look at the subsequent letter explaining and expanding the Tribunal's reasons for their decision. The error is apparent on the face of that letter.'" I have reviewed the decision in the Greater Birmingham case and it is clear from that decision that the subsequent correspondence was in response to a request from counsel for reasons on a particular issue which the Board did not decide, and which counsel correctly concluded was a necessary step in the Board's decision-making process. In the Greater Birmingham case the issue before the Court was the certiorari application itself. In the course of deciding that application the Court had to consider whether the subsequent letter explaining and expanding on the tribunal's decision should be part of the record. The Court held that, as a reviewing court, it could look at the subsequent letters for this purpose. It is clear on the facts of that case that these were supplemental reasons and properly part of the record brought up to the Court for judicial review. In my opinion the remarks of David Folkes as to the informality of the document (a letter) embodying the additional reasons must be read in the context of the facts in the Greater Birmingham case where the subsequent letter from the Board, although not a formal judgment, clearly contained written reasons for the tribunal's initial decision. These reasons were provided in response to a request from counsel involved in the proceedings before the tribunal. In my opinion, the June 8th, 1995, letter from the Minister to the Warden simply does not fit within the parameters of the decision in the Greater Birmingham case nor does the correspondence fit within the parameters White J. was dealing with in the Lincoln case. The June 8th, 1995, letter was not written for the purpose of giving a party who inquired the reasons why the decision to approve was made by the Minister. In the text Administrative Law by Sir William Wade, 6th edition, (1988) the author, in discussing what constitutes "the record" states at p. 312: ".....Denning LJ summed up the requirements of a proper record, distinguishing between civil and criminal cases as mentioned earlier. The authorities for civil cases showed, he said, that the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision. The authorities likewise showed that if the necessary materials were not submitted, the court could order the tribunal to supply them, on pain of having its decision quashed. This does not mean that the court can call for material to supplement the record, e.g. statements of reasons where those are not required by law. It means merely that the essential items which make up a legal record can be called for. A tribunal cannot be allowed to frustrate judicial review by withholding documents which are part of the record of the proceedings before it. It can also be ordered to supply particulars which it has a legal duty to incorporate in its decision (as where procedural regulations require a statement of reasons), thus saving a separate application for mandamus. If it voluntarily supplies particulars, as by filing an affidavit in certiorari proceedings, that too is part of the record. So is a letter explaining the reasons for an administrative decision, even if sent some time later and not to the party himself." {Emphasis added} The authority for the statement made in the last sentence of the foregoing quote is a decision of the Queen's Bench Division in R. v. Supplementary Benefits Commission ex p. Singer [1973] 1 W.L.R. 713. In that case Mr. Singer who had been refused legal aid by the Law Society because the Supplementary Benefits Commission decided that his disposable income exceeded the maximum allowed for a person to qualify, asked the Commission to give the matter further consideration. The Commission, by letter, confirmed its decision and explained how it determined that his annual income was £5,000. Bridge J., for the Court, in deciding to consider the subsequent letter as forming part of the record stated: "It seems to us that whenever a statutory body, having made a decision of a kind which can be questioned in proceedings for an order of certiorari, has subsequently chosen to disclose the reasons for the decision, whether it could have been compelled to do so or not, and however informal the document embodying the reasons, the decision with the added reasons becomes a "speaking order" and if an error of law appears in the reasons certiorari will lie to quash the decision." I would infer from the decision that the subsequent letter from the Commission was sent to Mr. Stringer, although who it was sent to is not of any particular relevance other than Wade's suggestion that it was sent to someone other than a party. What is significant is that the letter was an unequivocal statement of reasons for the decision and sent following a request by a party to the proceedings that the Commission reconsider the matter. Obviously it should be part of the record to be reviewed by the court. That is not the situation we have under consideration. The law of Nova Scotia, as embodied in Rule 56.08 and commented on in Walker v. Keating, Smith & Walker (1974), 6 N.S.R. (2d) 1 (C.A.) provides that "the record" for judicial review purposes shall include the order sought to be reviewed, the decision or reasons for judgment, the evidence and the exhibits as well as the "process commencing the proceeding." In my opinion correspondence from a decision-maker which gives a retrospective insight into the mind of the decision-maker and made subsequent to rendering the decision, should only form part of the record if provided by the decision-maker following a bona fide request of a party for additional reasons for judgment or if supplied voluntarily by the decision-maker such correspondence is forwarded to all the parties and it is apparent that the correspondence contains reasons for the decision. To hold otherwise could lead to abuses as such correspondence might be generated for a variety of ulterior or collateral motives that were not relevant to the decision made in the first instance. In either case, as a general rule, a decision maker should not be able to file reasons after proceedings have been commenced for a judicial review of that decision. Otherwise, there is too much opportunity for abuse by the decision maker to either bolster the reasons for the decision or give different reasons or, as in this case, disavow the decision by the simple expedient of filing what purports to be additional reasons and return those to the court as a supplement to the record required to be filed under Rule 56.08. In this case the certiorari application was commenced on May 16th, 1995. The letter which Canada Life is most anxious to have before the reviewing court as part of the record was written by the Minister on June 8th, 1995. The subsequent correspondence contained in the supplemental return does not meet the threshold criteria I have suggested. I reach this conclusion by considering the circumstances that gave rise to the Minister's letter of June 8th, 1995, that is, the letter from the Warden of June 5th. The Warden did not ask the Minister for reasons why she approved the by-law but, rather, why was she not prepared to oppose Canada Life's application for judicial review of her approval. The June 8th letter does not unequivocally contain reasons why the Minister approved the by-law. The letter does provide some insight into the Minister's mind as of June 8th, 1995; it indicates that she may have concluded in retrospect that the staff review of the by-law was inadequate or that the municipal planning strategy and land use by-law was not clear as to its effect on development in the floodway. Counsel for Sobeys and the Municipality argue that the Minister's planning staff did a review of the land use by-law and were either aware or ought to have been aware of the provisions of the by-law that would allow further development in the Robie Street commercial area that could encroach on the floodway. Furthermore, to allow that correspondence to be part of the record would have it stand before the reviewing Court immune from challenge. I agree with counsel for the Municipality that it would be a dangerous precedent to extend the decisions in the Greater Birmingham and Lincoln cases to encompass the factual situation that is before us. I would not interfere with the decision of the Chambers judge to strike the supplemental return. In my opinion the contents of that letter were not supplementary reasons but were correctly labelled by counsel for Sobeys as attempts to exert political pressure on the Municipality to amend the municipal planning strategy and land use by-law. While a ruling that the supplemental return be struck deprives Canada Life of the evidence or opinion contained in the June 8th, 1995, letter, in which the Minister states that the Department apparently overlooked the conflict between the land use by-law and the policy of the Department to prevent further development in the floodway, it does not appear to me that this has the critical impact on Canada Life's application that its counsel suggests. The letter of January 29th, 1995, from the Deputy Minister to the Municipality which is part of the record that was initially returned indicates that the Department of Municipal Affairs on its review of the land use by-law had not noticed the alleged conflict between the land use by-law and the Department's policy to prevent further development in the floodway. I would dismiss the appeal. I expressly do not decide whether it is open to Canada Life to file an affidavit of the Minister, if available, setting out the reasons or lack of same why she approved the municipal planning strategy and land use by-law in question. To answer a question posed by Canada Life's counsel, an affidavit is not a necessary component of a return under Civil Procedure Rule 56.08. But, if a party wishes to adduce additional evidence on the hearing of an application for judicial review, it must be by way of affidavit. Affidavit evidence is not only admissible but usually necessary when a court is reviewing a decision of an inferior tribunal where the grounds are lack of jurisdiction or bias or fraud. As a general rule, affidavit evidence is not admissible when the grounds for review are in error on the face of the record unless the affidavits show the record to be incomplete (Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw [1952] K.B.D. 338 at p. 354). The contents of the June 8th, 1995, letter and the circumstances giving rise to that letter being written, should not be before the reviewing court unless confirmed by an affidavit of the Minister who would have to be available for cross-examination if the affidavit were to be admitted by the judge hearing the application. Conclusion I am of the opinion the learned Chambers judge did not err in striking the supplemental return. I would therefore dismiss the appeal and order Canada Life to pay costs of $1,000.00 to each of the respondents plus disbursements. Hallett, J.A. Concurred in: Freeman, J.A. Roscoe, J.A. C.A. No. 122426 C.A. No. 122478 NOVA SCOTIA COURT OF APPEAL BETWEEN: THE ATTORNEY GENERAL OF ) NOVA SCOTIA representing Her ) Majesty the Queen in Right of the ) Province of Nova Scotia ) ) Appellants ) ) - and - ) ) THE HONOURABLE SANDY JOLLY, ) Minister of Municipal Affairs, and THE ) MUNICIPALITY OF THE COUNTY OF ) COLCHESTER ) ) - and - ) REASONS FOR ) JUDGMENT BY: THE CANADA LIFE ASSURANCE ) COMPANY ) ) HALLETT, J.A. ) Appellant/ ) Applicant ) ) - and - ) ) SOBEY LEASED PROPERTIES ) LIMITED and SOBEYS INC. ) ) Respondents ) (Third Parties) ) ) )