Antigonish (County) v. Alva Construction Ltd.
Given the stipulated facts and the by-law's enforcement scheme, the municipality could not recover tipping fees in a civil action after failing to proceed under the by-law and becoming barred by the six‑month prosecution period; the lower court decision (2009 NSSC 405) was correct and is affirmed, and the appeal is...
Source-derived case information.
- Citation
- 2010 NSCA 52
- Parties
- Appellant: Municipality of the County of Antigonish; Respondent: Alva Construction Limited
- Court
- Nova Scotia Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 9 June 2010
- Procedural Posture
- Appeal From Decision on Agreed Statement of Facts Regarding Municipal by Law Enforcement / Nova Scotia Court of Appeal — Oral Reasons and Decision (appeal Heard June 9, 2010; Written June 10, 2010)
- Outcome
- Appeal dismissed
- Legal Topics
- By Law Enforcement, Tipping Fees, Time Limitation on Prosecution, Exclusive Remedy/enforcement Mechanisms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Municipality of the County of Antigonish
Appellant
Alva Construction Limited
Respondent
Procedural Posture
Appeal From Decision on Agreed Statement of Facts Regarding Municipal by Law Enforcement / Nova Scotia Court of Appeal — Oral Reasons and Decision (appeal Heard June 9, 2010; Written June 10, 2010)
Legal Issues
- 1 Whether a municipality may recover by-law tipping fees via civil proceedings after failing to initiate prosecution under the by-law and being time-barred from prosecution
Ratio Decidendi
Given the stipulated facts and the by-law's enforcement scheme, the municipality could not recover tipping fees in a civil action after failing to proceed under the by-law and becoming barred by the six‑month prosecution period; the lower court decision (2009 NSSC 405) was correct and is affirmed, and the appeal is dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed with costs of $750 inclusive of disbursements payable to the respondent
Full Case Text
Judgment text and source record
1 paragraphs
Antigonish (County) v. Alva Construction Ltd. Court Court of Appeal Date 2010-06-09 Citation 2010 NSCA 52 Docket CA 323179 Judge/Registrar/Adjudicator Beveridge, Duncan R. (Honourable Justice) (CA); Farrar, David P.S. (Honourable Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Antigonish (County) v. Alva Construction Ltd. - 2010 NSCA 52 - 2010-06-09 - Library Sheet See also - Antigonish (County) v. Alva Construction Ltd. - 2009 NSSC 405 - 2009-12-31 - Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Antigonish (County) v. Alva Construction Ltd., 2010 NSCA 52 Date: 20100609 Docket: CA 323179 Registry: Halifax Between: Municipality of the County of Antigonish Appellant v. Alva Construction Limited Respondent Judges: Saunders, Beveridge and Farrar, JJ.A. Appeal Heard: June 9, 2010, in Halifax, Nova Scotia Written Judgment: June 10, 2010 Held: Appeal dismissed per oral reasons for judgment of Saunders, J.A.; Beveridge and Farrar, JJ.A. concurring. Counsel: Donald Macdonald, for the appellant John Kulik, Q.C., for the respondent Reasons for judgment: (Orally) [1] Mr. Kulik, we need not hear from you this afternoon. While we agree that the appellant has raised an arguable issue warranting leave to appeal, we are unanimously of the opinion that the appeal ought to be dismissed. [2] The single issue on appeal is whether a Municipality may enforce a by-law through civil litigation, after it has failed to use the enforcement provisions contained within the by-law itself. [3] The parties appeared in Chambers before Nova Scotia Supreme Court Justice Nicholas M. Scaravelli and asked him to decide this issue based upon an Agreed Statement of Facts. The question they posed pursuant to Civil Procedure Rule 12.02 read: Can the Plaintiff, the Municipality of the County of Antigonish, seek to recover tipping fees for the deposit of solid waste from the Defendant corporation by means of a civil proceeding where it has not initiated a prosecution under the by-law which imposes the fees, and is now, because of the passage of more than six months from the date of the alleged offence, unable to start such a prosecution? On the motion to determine this question it is to be assumed, for the purpose of the motion only, that the Defendant deposited the waste at a place other than the facility designated under the by-law, contrary to that by-law. [4] Scaravelli, J. held that it could not. We agree. Based on the circumstances before him, as stipulated in the Agreed Statement of Facts, we think his decision, now reported at 2009 NSSC 405 was correct. The appeal is dismissed with costs in the amount of $750, inclusive of disbursements payable to the respondent. Saunders, J.A. Concurred in: Beveridge, J.A. Farrar, J.A.