Marvel Metal and Glass Products Ltd. v. Annapolis County (Municipality)

Marvel Metal and Glass Products Ltd. v. Annapolis County (Municipality) Court Supreme Court Date 2002-02-18 Citation 2002 NSSC 45 Docket SAR 020242 Judge/Registrar/Adjudicator Haliburton, Charles E. (Honourable Justice) (SC) Document Type Decision Decision Content 2002NSSC045 S.AR. No: 020242 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Marvel Metal and Glass Products Ltd. v. Annapolis County (Municipality), 2002 NSSC 45] BETWEEN: MARVEL METAL AND GLASS PRODUCTS LTD. PLAINTIFF - and - MUNICIPALITY OF THE COUNTY OF ANNAPOLIS and ALBERT M. DUNPHY, DEVELOPMENT OFFICER for the Municipality of the County of Annapolis DEFENDANTS HEARD: At Annapolis Royal, Nova Scotia on December 18, 2001 BEFORE: The Honourable Justice Charles E. Haliburton SUBJECT: Application for certiorari and mandamus, Municipal Development Officer and building by-laws DECISION: February 18, 2002 ATTENDING: E. Roxanne MacLaurin, Solicitor for the Petitioner Bruce Gillis, Solicitor for the Respondent D E C I S I O N [1] The Plaintiff has brought this application seeking the following remedies: 1. An order in the nature of certiorari pursuant to Civil Procedure Rule 56 to quash the decision of Albert M. Dunphy, Coordinator of Planning and Development Control for the Municipality of the County of Annapolis, dated March 20, 2000, indicating that the Plaintiff’s tentative plan for subdivision approval in respect to lands of the Plaintiff at Phase 2 of Winbaker Heights Subdivision in the Municipality of the County of Annapolis whereby the Plaintiff seeks to create Lots 13 to 26 inclusive has lapsed because the said lots “were not shown on a final plan of sub-division within two years of March 16, 1998, the date of approval of the tentative plan of subdivision; 2. An order in the nature of certiorari to quash the decision of Albert M. Dunphy, Coordinator of Planning and Development Control for the Municipality of Annapolis, dated March 21, 2000 indicating that although the Plaintiffs [sic] application for approval of a final plan of subdivision was “considered complete” that a “new application for approval of a tentative plan of subdivision must be submitted and approved before an approval of a final plan of subdivision can be granted”; 3. An order in the nature of certiorari to quash the decision of David J. Almon of the Nova Scotia Utility and Review Board dismissing the Plaintiff’s appeal and confirming the decision of the Development Officer; 4. An order in the nature of mandamus directing the Defendants to give final subdivision approval in respect of the Plaintiff’s Application for final subdivision approval. [2] The remedies sought in paragraphs 1 and 2 above seek to quash the decision of Mr. Dunphy as represented in his letter of March 21st to the solicitor for the Plaintiff that “I regret to inform (you) of my decision to refuse to approve your final plan of subdivision as submitted.” [3] As a result of Mr. Dunphy’s decision, the Plaintiff appealed to the Nova Scotia Utility and Review Board (URB) pursuant to Section 284 of the Municipal Government Act, SNS 1998 ch. 18. The appeal having been denied by the Board, the relief sought in paragraph 3 above is that the Board’s decision, like Mr. Dunphy’s decision, be quashed. [4] The remedy sought in paragraph 4 above is straightforward. The Plaintiff seeks to have this court direct the Development Officer to issue a final approval of the plan of subdivision. BACKGROUND [5] The essence of the dispute here is that the Plaintiff (Marvel) is a land developer. In 1997 Marvel began to work on Phase 2 of a subdivision with the prospect of developing fifteen lots. There was, at that time, an existing regime constituted by the Planning Act, RSNS 1989, Chapter 346 and the By-laws of the Municipality, made in contemplation of that Act. The tentative plan was vetted by the Department of Environment and by the Nova Scotia Department of Transportation and Public Works as required by the then-existing rules. On March 16, 1998 a tentative approval was obtained. [6] The approval of the Department of Transportation was specifically contingent upon the Plaintiff providing further details. The Area Manager of the Department of Transportation and Public Works wrote to Mr. Dunphy March 5, 1998: Prior to final approval a drainage plan must be submitted to show the bearing drainage water will have on the proposed subdivision as well as Cameron Drive, also a profile showing the final grades of the intersection of the proposed private road and Cameron Drive. [7] As a result, the tentative approval granted by Mr. Dunphy, carried the following notation “additional drainage information is required.” [8] The materials before the court indicate that continuing discussions and/or negotiations took place between the Plaintiff and the Development Officer between March 16, 1998 and June 24, 1998. [9] There is no evidence contained in the file to indicate that the deficiencies noted in the tentative approval were ever rectified. [10] Without doubt the subject matter of the discussions in the spring and summer of 1998 relate to the fact that a new regime for subdivision approval and road construction was being implemented in the Municipality. Insofar as that bears upon the present application the parties have conducted themselves as “two ships passing in the night”. Mr. Dunphy, on behalf of the Municipality, took the position that the developer would have to comply with the new road construction standards which required paving. The developer contended that tentative approval of their plan before the regime had changed, “grand-fathered” their right to approval for a subdivision created in accordance with the rules and regulations which had been in effect at the time the tentative approval was given. [11] The Planning Act itself was repealed when the Municipal Government Act (MGA) came into effect on the 1st of April, 1999. Thereafter the planning and sub-division authority of the Municipality fell under the provisions of the MGA. Almost simultaneously the Municipal Council, on April 21st approved “revised development standards” which required that new public roads be paved as an additional “standard” to those previously existing. [12] It appears to be of the essence that the municipal authorities were, throughout the following period, insisting that the developer must meet the “new standard” for road construction which included paving. The developer, meanwhile, contended that because they had a tentative plan approved before the standards changed, they were entitled to proceed with their development and insist on final approval on the basis of the previously existing standards. [13] Under both the old and the new rules the tentative approval had to be made “final” within two years. Circumstances came to a head on March 15, 2000 when the developer applied for final approval as Mr. Scotney’s affidavit asserts, “based on its satisfaction of the terms, conditions, policies and by-laws in existence as at March 16, 1998.” [14] It may be significant that a “decision” was made by Mr. Dunphy in the form of a letter issued March 21, 2000 in which he “refused” to approve the final plan. [15] This decision was appealed, as already mentioned, to the URB where it was heard on June 22, 2000 and a decision was rendered November 1, 2000 dismissing the appeal. ISSUES [16] Ultimately, the court is left with two issues which have been argued: Limitation Period 1. An application for an order in the nature of certiorari is governed by Civil Procedure Rule 56. Does the limitation period of six months stipulated in Rule 56.06 require the dismissal of this application where the decisions sought to be quashed were made respectively on March 21st of 1998 and on November 1, 2000; this action not having been commenced until November 19, 2001. Mandamus 2. With respect to the application for mandamus, has the Plaintiff established that, in the circumstances established by the evidence, Albert Dunphy was obliged to “approve” the final plan of subdivision as of March 20, 2000. ISSUE I [17] It is apparent from a review of the Rule itself, and of the cases that the Plaintiff was out of time in filing this application. The rule provides: 56.01 All other Civil Procedure Rules, with any necessary modifications, including any rule relating to the abridg- ment or extension of time, apply in all matters not provided for in Rule 56. 56.02 (1) An order in the nature of mandamus, prohibition, certiorari, habeas corpus or quo warranto may be granted by the Court upon application by an Originating Notice (2) No writ of mandamus, prohibition, certiorari, habeas corpus or quo warranto shall be issued, but all necessary directions shall be made by Order. 56.06 An Originating Notice for an order in the nature of certiorari shall be filed and served within six months after the judgement, order, warrant or inquiry to which it relates and Rule 3.03 does not apply hereto. (my emphasis) Rule 3.03 is a general provision relating to the granting of an extension of time. It provides: 3.03 (1) The court may on such terms as it thinks just, extend or abridge the period within which a person is required or authorized by these Rules, or by any order, to do or abstain from doing any act in a proceeding. (2) The court may extend any period referred to in paragraph (1) although the application for extension is not made until after the expiration of the period. (3) The period within which a person is required by these rules or any order to serve, file or amend any pleading or other document may be extended by consent in writing of the parties. [18] Rule 56.01 states that the general Civil Procedure Rules will apply in Crown Practice matters except as varied by Rule 56. The abridgement or extension of time is specifically recited as one of those exceptions. The importance of the intention of Rule 56.01 in this regard is then emphasized by Rule 56.06 which specifically requires , with respect to an order in the nature of certiorari in particular, that it must be filed and served within six months of the order to which it relates. [19] The Rule has been the subject of substantial judicial comment in both trial courts and in the Court of Appeal. Counsel have cited a number of cases including Shepherd v. Colchester 131 N.S.R. (2d), 129; Melford Concerned Citizens Society v. Nova Scotia (Minister of the Environment) 181 N.S.R. (2d) 52; Chipman v. Workers’ Compensation Board (N.S.) 99 N.S.R. (2d) 290. [20] In this latter case, Clarke C.J.N.S. delivered the judgement for the Court of Appeal. The facts were that the Workers’ Compensation Act had been applied to a claim by Mr. Chipman in a way that deprived him of some of the benefits to which he was entitled. In 1973 and again in 1980 orders of the Board were made which limited his compensation. In June, 1983, in an unrelated case, (Herman v. W.C.B. (1983) 58 N.S.R. (2d) 353) it was determined that the Board’s interpretation of the law was in error and would have affected Chipman’s claim. In 1998 Mr. Chipman applied to the Board to recover the amounts which had been wrongfully withheld. In reaching the conclusion that Chipman’s action was out of time, Clarke, C.J.N.S. said at paragraphs 11, 12 and 13 of his judgement: The evidence of Mr. Chipman’s own affidavit is that he knew that the deductions were made in each of 1976 and 1980 therefore his application for certiorari in 1989 is clearly out of time. Civil Procedure Rule 56.06 is authority for that proposition...Rule 56.06 begins to run...the day the decision was delivered, namely June 7 1983. The law is well settled that, rigorous though it may appear, the decision of the court, like a change in a statute, is deemed to be known when it is or becomes effective. (13) Thus in failing to apply for certiorari within the six months after June 7, 1983 Mr. Chipman’s application would also be out of time by Civil Procedure Rule 56.06. [21] The reference to “June 7, 1983" is a reference to Herman v. W.C.B. (above) which had determined the interpretation being applied by the Workers’ Compensation Board was in error. [22] In Melford v. Nova Scotia (1999), 181 N.S.R. (2d) 52 Wright, J. dealt with a situation in which a solicitor’s error had caused an Originating Notice to be served one day late. In dismissing the application for certiorari he observed: Paragraph 11: The sole issue to be decided is whether...the judicial review application should be dismissed for failure to comply with the time requirements specified in Civil Procedure Rule 56.06... Paragraph 12: Rule 3.03 is the Civil Procedure Rule which otherwise confers upon the court a discretion to extend or abridge the time...however such relief is clearly excluded when it comes to certiorari applications. Paragraph 33: ...I have concluded that the court ought not exercise its inherent jurisdiction when to do so would abrogate its own judge-made Civil Procedure Rules and the legal jurisdiction requiring strict adherence to those rules where certiorari applications are involved. [23] In Shepherd v. Colchester (1994), 131 N.S.R. (2d) 129 Scanlan, J. said at paragraph 56: As harsh as it may appear the courts have held that the six month limitation must be complied with. It is clear that Rule 3.03 is not applicable to 56.06 as it is specifically excluded in Rule 56.06. [24] The decisions complained of in this application were made well outside the six month limitation period. As the cases reveal, even missing that limitation period by one day, would almost invariably result in dismissal. I find that the Originating Notice herein was out of time when issued and that even if the merits of the application were such as to result in a favourable decision, I would be without jurisdiction to grant that result. ISSUE II Mandamus and Onus [25] To quash the decision of the Development Officer and/or the Utility Review Board would be of no use to the Plaintiff without the granting of a companion order in the nature of “mandamus” requiring the Development Officer to grant the subdivision approval. [26] The parties are agreed that the prerequisites for granting mandamus were correctly identified in Rawdon Realties Ltd. v. Nova Scotia (Rent Review Commission), Rogers, J. 56 N.S.R. (2d) 403. In paragraph 5 of that decision, the learned judge succinctly outlined those prerequisites. I have paraphrased slightly his words: In order for mandamus to lie or an order in the nature of mandamus to lie there must be: 1. standing, a sufficient legal interest in the parties making the application. 2. no other legal remedy equally convenient, beneficial and appropriate. 3. a duty to the applicant, by the party sought to be coerced, to do the act requested. 4. the duty owed must not be one of a discretionary nature, but many be established in common law, or by statute. 5. the act requested to be done must be required at the time of the application, not at some future date. 6. there must be a request to do the act, and that request must have been refused. [27] It is my view that the Plaintiff clearly meets all these criteria for the granting of a mandamus excepting only the fourth. There is a real issue here with respect to whether or not the Development Officer had a “discretion” to be exercised in approving or refusing the final plan of subdivision. [28] It is argued with some merit that the Plaintiff was treated unfairly during the “process” and in the result of the process. After the preliminary plan was approved the rules with respect to the construction of roadways changed. The Municipality applied the new rules which required paving. The developer (Plaintiff) sought to have the final plan approved on the basis of the former rules. This difference of perspective or opinion raised an issue of law. [29] Timing is relevant to demonstrate why the Plaintiff can legitimately feel unfairly treated. The Municipality within the same time frame encountered a problem of a very similar nature with another developer. That matter, George Eddy Co. v. Annapolis County cited as 2000 Carswell NS 246 was heard and decided July 6, 2000 by MacDonald A.C.J. The dispute between the parties in that case was strikingly similar. To quote the headnote: Development company submitted sub-division plans for tentative sub-division approval and received same in 1998...shortly after tentative approval municipality passed new sub-division by-laws requiring higher road standards...when company submitted plan for final approval in 2000, Development Officer determined that application was incomplete as it failed to meet newly incorporated road standards. [30] The initiative taken by the developer in that case was different from the present, in that Eddy applied immediately to the Court for certiorari and mandamus. In the present case, the developer chose to appeal to the Utility Review Board. The availability of appeal to the Utility Review Board was discussed in relation to the second prerequisite for granting a mandamus in Eddy. My reading of Eddy and a careful reading of s. 250(3) puts in doubt the jurisdiction of the U.R.B. to deal with this particular appeal. Whatever the case, the difficulty for the developer was compounded when the U.R.B. came to a different conclusion as to “the law” from that reached by MacDonald, A.C.J. in Eddy. [31] As I have already indicated the essence of the dispute in Eddy, like the present case, was that a change in the regulations between the date of tentative approval and the date of application for final approval of the subdivision plan resulted in “a much more expensive road construction process. The applicant takes the position that because it received tentative approval before the new road standard was incorporated, its application should be grand-parented and it should only have to meet the road standards as they existed at the time it received the tentative approval.” At paragraph 7 of the decision the judge observes, “the municipality agrees that this exercise involves essentially a question of law...” and at paragraph 10, “the municipality submits that this provision (section 283, MGA) speaks about municipal requirements at the time of final approval which would include the new standards. The applicant, on the other hand, submits that this subsection applies to services required at the time the tentative plan was approved. I agree with the applicant on this issue. The subsection refers to the services “to be constructed”. This speaks to the future and therefore can only apply to requisite services at the time the tentative plan was approved. [32] MacDonald, A.C.J. was addressing the application of section 283 of the Municipal Government Act and section 278. He found there to be a conflict between the two and in so doing, ruled in favour of the developer. He said at paragraph 14: This brings into focus an apparent conflict between section 283 supra and the above subsections of section 278. I find when considering the context of the Act generally, section 278 must be subject to the clear meaning of section 283. I find that section 238 represents the legislator’s effort to protect developers exactly like the applicant who received tentative approval under one regime and are to be protected from any subsequent changes. [33] I have quoted from the Eddy case for the purpose of demonstrating that as of July 6, 2000 when that decision was delivered, it was the law in Nova Scotia, or more particularly in Annapolis County, that the conditions required to be met by a developer to have final approval of a subdivision plan were those conditions which were required to be met when the approval of the tentative plan was given. This has been referred to as “grand-fathering” in the decision and in the argument. [34] This same issue was the primary bone of contention between the Development Officer and the developer in this case. The Development Officer was insisting that Marvel Metal must meet the “new” rules while Marvel Metal continued to insist that they had only to meet the “old” rules. The Eddy decision had not been rendered at the time when the present parties appeared before the U.R.B. on June 22nd. It was, however, rendered two weeks later. Meanwhile the U.R.B. took the same issue under consideration and rendered their decision November 1, 2000. To the extent that the Board’s decision was the result of this error in law, it was wrong. Unfortunately, counsel for Marvel Metal was unaware of the Eddy decision and it was not brought to the attention of the U.R.B. Ultimately the decision made by the Board came to precisely the opposite conclusion. At page 12 of that decision, the Board ruled: In the absence of transitional provisions of general or specific application, the MGA must be taken to apply to an application for approval of the final plan in question. The Planning Act can have no application since it was no longer in force at the date of the application for final approval was filed with the Development Officer. One must look solely to the provisions of the MGA to determine whether the Development Officer’s decision was in conflict with the provisions of the sub-division by-law. By the same token, since a new sub-division by-law was in effect at the date of the application for approval of the final plan was submitted, its terms must apply. and at page 14: In the present matter, the application under appeal was made under the MGA, not the Planning Act, by the time the new sub-division by-law and MGA came into force. In such circumstances the fact that the tentative sub-division was approved at a time where the requirement differed from those under the new by-law, is only relevant if one can find in the words of the MGA some direction, either in express words or by necessary implication, that the approval of a tentative plan of sub-division under a former by-law requires a Development Officer to apply the same (former) standards to a subsequent application for approval of a final plan of sub-division. [35] Contrary to the Board’s conclusion, the subdivision regulations which were applicable were the former regulations. That proposition was established in George Eddy v. Annapolis County. In hearing the appeal by Marvel Metal, the U.R.B. was therefore not correct in its interpretation of the law. [36] The decision of the Board could therefore be quashed on an application for judicial review (see Pushpanathan v. Canada (Minister of Employment and Immigration) 1998 1 N.S.R. 982. It was not correct in interpreting the law. [37] Before an order in the nature of mandamus could issue, however, the Plaintiff must demonstrate not only that the U.R.B. applied some wrong principle of law in reaching their conclusion but must go on to demonstrate on the basis of the usual civil standard of proof that, at the time of applying for final approval of their subdivision plan, they had met the requirements of the by-laws which were effective in relation to their development. A careful reading of the Board’s decision indicates that there were either agreed facts or materials in evidence before the Board which have not been placed before me. Among the observations incorporated in the decision are the following: In order to avoid having the tentative plan of the sub- division lapse, under the terms of the Planning Act, (the old regime) an applicant had to receive approval of a final plan of subdivision within two years of the date of approval of the tentative plan. Section 105 (3) provided that a development officer had, at the minimum, 30 days to approve a completed application. One assumes that it would have been necessary to file an application for approval at least 30 days before the end (of) two year period. In this case, the Appellant applied one day before the approval on the tentative plan was due to lapse. After referring to section 108 (1) of the former Planning Act a provision which required the municipal engineer to have approved all streets before the plan of subdivision could be given final approval, the Board observed: Having reviewed the documentary evidence presented, the Board finds that the engineer has not actually approved the public streets in compliance with section 280 (a) of the MGA. [38] If this finding of fact is correct then it would have precluded the Development Officer from granting final approval. [39] The Board, in its decision, as indicated earlier, referred to paragraph 105 of the Planning Act previously in force which provided that the tentative approval would lapse unless approval was given to a final plan approved within two years and notes that the Development Officer was permitted 30 days in which to approve or refuse to approve. This provision obviously accords to the Development Officer some “discretion”. Marvel Metal seeks to have the benefit of section 283 of the new regime which provides: Where a tentative plan of sub-division is approved pursuant to the sub-division by-law, a lot or lots shown on the approved tentative plan shall be approved at [sic] the final plan of sub-division stage...if (b) any conditions (ie. limiting conditions) on the approval of the tentative plan have been met. [40] There is nothing in evidence before me which would establish that the conditions attached to the tentative plan with respect to gradients and water run-offs had been satisfied when the application for final approval was made and before the two year limitation period for the granting of that final approval had run out. A reading of the U.R.B. decision clearly suggests that they were persuaded that these conditions had not been met. [41] The materials submitted suggest that the Development Officer had a discretion to waive the technical requirements in question, provided the developer posted a bond sufficient to pay for the completion of the proposed work if the developer failed to do so. Marvel Metal posted a bond in this case which had an expiry date approximately one year after the date of the application. There was a dispute between the developer and the Development Officer as to whether the bond adequately secured the performance of the work contemplated. It seems evident that, as the U.R.B. decision observed, the road construction was not completed within the two year time frame as contemplated by the preliminary approval. [42] In the result the Plaintiff has failed to establish with the requisite degree of certainty that the duty of the Development Officer to grant the approval was not “discretionary” in nature and/or that the officer had failed to exercise such discretion on a reasonable and proper basis. The Plaintiff moreover has failed to establish on the evidence before me that it had either completed the roadway as contemplated in the plan which had been tentatively approved; and had rectified the deficiencies noted or that it had posted a bond to secure the completion of that project as contemplated under the former by-laws. If the Plaintiff had not done so, it would not have been entitled to have final approval of its subdivision plan in spite of the mandatory wording of the principle clause of section 283 of the Municipal Government Act. The action is dismissed. Dated at Digby, February 18, 2002. J.