St. George's Lawn Tennis Club v. Halifax (Regional Municipality)

St. George's Lawn Tennis Club v. Halifax (Regional Municipality) Court Supreme Court Date 2007-01-26 Citation 2007 NSSC 26 Docket SH 261036 Judge/Registrar/Adjudicator Smith, Deborah K. (Honourable Associate Chief Justice) (SC) Document Type Decision Relations Library Sheet - St. George's Lawn Tennis Club v. Halifax (Regional Municipality) - 2007 NSSC 26 - 2007-01-26 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: St. George’s Lawn Tennis Club v. Halifax (Regional Municipality), 2007 NSSC 26 Date: 20070126 Docket Number: S.H. 261036 Registry: Halifax, NS Between: St. George’s Lawn Tennis Club, Joan Rankin & Ed Lake Applicants v. Halifax Regional Municipality Respondent Judge: The Honourable Associate Chief Justice Deborah K. Smith Counsel: Ed Lake (Self-Represented) for the Applicants Karen L. Brown – solicitor for the Respondent By the Court: [1] This matter involves an application for an Order in the nature of certiorari arising from certain decisions made by the Harbour East Community Council (a council of the Halifax Regional Municipality) concerning a proposed land development in Dartmouth, Nova Scotia. [2] In March of 2005, Watermark Developments Inc. (hereinafter referred to as “Watermark”) made application to the Halifax Regional Municipality for site-plan approval of a six unit townhouse development that they wanted to build on property located at civic number 7, St. George’s Lane in Dartmouth, Nova Scotia. The development would involve the demolition of a single family dwelling that was already located on the said property. [3] On March 18th, 2005, Mr. Sean Audas (a Development Officer with the Halifax Regional Municipality) granted the said approval. Pursuant to ss. 232(2) and 236 of the Municipal Government Act, Mr. Audas forwarded notice of his decision to all property owners within thirty (30) metres of the property in question. [4] Section 232 of the Municipal Government Act grants a right of appeal of a Development Officer’s site-plan approval decision to the appropriate municipal council. In this case, a number of individuals appealed Mr. Audas’ decision to the Harbour East Community Council (hereinafter referred to as “Council”). [5] The appeal hearing was originally scheduled to be heard May 5th, 2005 but was deferred to May 25th, 2005. Prior to the hearing, Mr. Jess Landry (the vice-president of Watermark) asked Mr. Audas whether someone from Watermark would be given an opportunity to speak at the appeal hearing. According to Mr. Landry, the reason that he asked this question was that this was the first time anyone from Watermark had attended an appeal hearing and they were unsure of the process. Mr. Landry was advised that the Chair of the meeting would ask whether someone from Watermark wanted to speak before Council made its decision. [6] Mr. Landry was present at the May 25th, 2005 hearing. I am satisfied from the materials presented that the Chair of the meeting asked whether anyone wished to speak against the application (a number of people did) but failed to ask whether anyone wanted to speak for the application. Mr. Landry did not raise any objection that evening to not being invited to speak. After hearing from those opposed to the development, Council voted not to uphold the Development Officer’s decision to approve the site-plan application. [7] The next day, Mr. Landry telephoned Mr. Audas and inquired as to why he had not been invited to speak at the appeal. He indicated that he expected that someone would ask him to speak before the vote was taken. An in camera report was subsequently prepared for Council concerning this issue and a motion was passed by Council that a new appeal hearing concerning this development would be held. The surrounding property owners were advised of the situation and were given notice of a second hearing which was scheduled for August 4th, 2005. [8] At the time of the second hearing, the Chair invited both those opposed to and those in support of the development to speak. Two representatives of Watermark took the opportunity to address Council. At this second hearing, Council voted to uphold the Development Officer’s decision to approve the site-plan application. In other words, Council came to a different decision at the conclusion of the second hearing than they did at the conclusion of the first hearing. [9] Three parties have requested judicial review in relation to the second hearing. The first party is the Saint George’s Lawn Tennis Club which was incorporated by statute over one hundred years ago and which apparently owns property within thirty (30) metres of the area that Watermark proposes to develop. The other two parties (Joan Rankin and Ed Lake) also own property in the said area. [10] According to the brief filed on behalf of the Applicants, they seek to quash Council’s decision to hold the second appeal hearing or alternatively, they seek to quash Council’s August 4th, 2005 decision to approve the site-plan application. In the pre-hearing memorandum filed on behalf of the Applicants they state: The Applicants respectfully seek an order from this Court in the nature of certiorari pursuant to Civil Procedure Rule 56 to quash either of two decisions by the Council on grounds that: < Council acted in excess of jurisdiction and violated the doctrine of functus officio by reopening the appeal process of the Site-Plan Application in the face of a lawfully made decision to deny the approval of the site-plan; and, < Council erred in law during the second appeal hearing of the Site-Plan Application by not adhering to Section 217 of the MGA as they believed that under the law, they could not contemplate policies of the MPS [Municipal Planning Strategy] in reaching a decision. STANDARD OF REVIEW [11] I must begin my analysis by determining the appropriate standard of review for each of the issues in question. [12] There are three generally recognized standards of judicial review all of which involve a different level of deference to the original decision maker. At one end of the deferential spectrum is correctness. This standard affords no deference to the body under review and allows the reviewing judge, if appropriate, to substitute her own conclusions for the impugned findings. [13] The next standard of review is simple reasonableness. This standard allows for greater deference to the original decision maker provided that the body under review followed a reasonable path to its conclusion (see Midtown Tavern & Grill Ltd. v. Nova Scotia (Utility and Review Board), 2006 NSCA 115 at ¶ 22.) [14] At the far end of the deferential spectrum is patent unreasonableness. This standard of review provides the greatest level of deference to the body under review and does not allow the reviewing court to interfere with the impugned decision unless it is “clearly irrational” or “evidently not in accord with reason” (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at ¶ 52 and the cases referred to therein.) [15] The appropriate standard of review is determined by using the “pragmatic and functional approach” (see Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18 at ¶ 21.) In Granite Environmental Inc. v. Nova Scotia (Labour Relations Board), [2005] NSCA 141 Justice Fichaud described the pragmatic and functional approach as follows: [21] Under the pragmatic and functional approach, the court analyses the cumulative effect of four contextual factors: the presence, absence or wording of a privative clause or statutory appeal; the comparative expertise of the tribunal and court on the appealed issue; the purpose of the governing legislation; and the nature of the question, fact, law or mixed. From this the court selects, for each issue, a standard of review of correctness, reasonableness or patent unreasonableness. Dr. Q, at paragraphs 26-35; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 27; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 55-62. [16] In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (S.C.C.) Bastarache, J. stated: ¶26 The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must ask: “[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?” (Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2. S.C.R. 890, at para. 18, per Sopinka J.). ¶27 Since U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, this Court has determined that the task of statutory interpretation requires a weighing of several different factors, none of which are alone dispositive, and each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision in question. This has been dubbed the ‘pragmatic and functional’ approach........... [17] Not all issues, however, require a “pragmatic and functional” analysis. While in Dr. Q v. College of Physicians and Surgeons of British Columbia, supra, the Supreme Court of Canada stated at ¶21 “In every case where a statue delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach” the Court clarified this general statement in C.U.P.E. v. Ontario (Minister of Labour), [2003] S.C.J. No. 28. In this latter case, the Court distinguished between the standard of review to be applied to the ultimate decision of an administrative body as opposed to the procedural framework in which the decision was made. Binnie J., speaking for the majority stated at ¶100 and 102: The second order of business is to isolate the Minister’s acts or omissions relevant to procedural fairness, a broad category which extends to, and to some extent overlaps, the traditional principles of natural justice..........It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions. It is only the ultimate exercise of the Minister’s discretionary s. 6(5) power of appointment itself that is subject to the ‘pragmatic and functional’ analysis, intended to assess the degree of deference intended by the legislature to be paid by the courts to the statutory decision maker, which is what we call the ‘standard of review’. .......... The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations. [18] See also Creager v. Provincial Dental Board of Nova Scotia, [2005] N.S.J. No. 32 where Fichaud, J.A. stated at ¶24 “Issues of procedural fairness do not involve any deferential standard of review.......” [19] The first issue before me (whether Council acted in excess of jurisdiction and violated the doctrine of functus officio by reopening the appeal in the face of a lawfully made decision) requires an analysis of whether the Developer was denied a right to be heard at the initial hearing. This involves a question of procedural fairness and goes to the manner in which Council made its decision as compared to the end product of its deliberations (see the comments of Binnie J. in C.U.P.E. v. Ontario (Minister of Labour), supra, at ¶102.) Accordingly, I will not conduct a pragmatic and functional analysis in relation to this issue and will decide the matter without deference. [20] In arriving at this conclusion, I have considered the decision in Nova Scotia Government and General Employees Union v. Capital District Health Authority, [2006] NSCA 85 where the Court of Appeal determined that the lower Court judge should have applied the pragmatic and functional approach in a case dealing with the issue of whether an arbitration board (which made a supplemental award after its main award) had breached the doctrine of functus officio. In that case, the Board under review decided that its initial award did not express its manifest intent and concluded that it could therefore issue a supplemental award. This issue (whether the Board’s initial award expressed its manifest intent) was not one of procedural fairness and the Court of Appeal concluded that the justice reviewing the supplemental award should have applied the pragmatic and functional approach. In my view, that case is not meant to be authority for the principle that in all cases of judicial review, where the issue of functus officio is raised, the Court must apply the pragmatic and functional approach. [21] The second issue before me (whether Council erred during the second appeal hearing by not adhering to s. 217 of the Municipal Government Act when rendering its decision) requires a pragmatic and functional analysis in order to determine the appropriate standard of review. Before conducting this analysis it is useful to review some of the provisions of the Municipal Government Act. [22] Part VIII of the said Act (Sections 190 to 267) deals with the planning and development of municipalities. Pursuant to s. 212 of the Act a municipal council may adopt a Municipal Planning Strategy for all or part of a municipality. Section 213 states, inter alia, that the purpose of a Municipal Planning Strategy is to provide statements of policy to guide the development and management of a municipality. Section 216 indicates that a Municipal Planning Strategy may provide for the preparation and adoption of a Secondary Planning Strategy which applies, as part of a Municipal Planning Strategy, to a specific area or areas of the municipality. [23] All parties agree that in the case at Bar, the property in question is located in a neighbourhood that is covered by the “Downtown Dartmouth Secondary Planning Strategy”. This document lists as one of its objectives the protection and strength of the traditional character and stability of the downtown Dartmouth neighbourhoods (page 19 of the said Planning Strategy.) Policy N-4 of the said document reads as follows: “Small scale townhouse development may occur within the neighbourhoods without impacting on neighbourhood character or stability. Such developments shall be considered through the site plan approval process to ensure appropriate site design standards are satisfied to maintain compatibility and minimize any adverse effects on adjacent dwellings. The Land use Bylaw shall set out the requirements for site plan approval.” [24] When a municipal council adopts a Municipal Planning Strategy that contains policies about regulating land use and development Council shall, at the same time, adopt a land-use by-law or land-use by-law amendment that shall enable the policies to be carried out (see s. 219(1) of the Act.) A council shall not adopt or amend a land-use by-law except to carry out the intent of a Municipal Planning Strategy (s.219(3)). The approval or refusal by a council to amend a land-use by-law may be appealed to the Nova Scotia Utility and Review Board but only on the ground that the decision of Council did not reasonably carry out the intent of the Municipal Planning Strategy (see ss. 247(1) and 250(1)(a) of the Act). [25] In the case at Bar, the “Land Use-By-Law for Downtown Dartmouth” applies to the property in question. This document breaks land in Dartmouth, Nova Scotia into various zones including the Downtown Neighbourhood Zone. The purpose of this Zone is said to be “...........to protect the integrity and character of existing residential neighbourhoods by limiting the type, scale and design of new development, renovations, and home based businesses” (page 27 of the said Land-Use By-Law). [26] There are certain property uses that are permitted as-of-right in the Downtown Neighbourhood Zone. These include, inter alia, single unit dwellings, two unit dwellings and townhouse and multiple residential uses which were in existence on the effective date of the by-law (July 11th, 2000). Additional uses such as townhouse dwellings that were not in existence on the effective date of the by-law may be considered by way of site-plan approval. Other uses may only be considered by way of a Development Agreement which involves a more formal procedure than site-plan approval. For example, Council must hold a public hearing before approving a Development Agreement (see s. 230(2)of the Act). No such requirement exists in relation to a site-plan approval. [27] Further, the approval or refusal of a Development Agreement is also appealable to the Nova Scotia Utility and Review Board on the ground that the decision of Council does not reasonably carry out the intent of the Municipal Planning Strategy (see ss. 247(2) and 250(1)(b) of the Municipal Government Act.) No such appeal is available in relation to a decision by Council concerning a site-plan approval. [28] Section 9(14) of the “Land Use-By-Law for Downtown Dartmouth” is applicable to this development and reads as follows: Requirements for Site Plan Approval for Townhouse Dwellings (14) All townhouse dwellings are subject to approval of a site plan. The Development Officer shall approve a site plan where the following matters have been addressed: (a) Adequate separation distances shall be provided for townhouse dwelling units which abut single detached dwellings. (b) The front yard setback required for townhouse buildings shall be in context with the setbacks of buildings within the immediate neighbourhood. (c) Driveways should not be located so as to dominate the front yard of the lot, and the remainder of the front yard not required for parking shall be landscaped. (d) Any common parking areas shall be screened from adjacent single unit dwellings and the street by landscaping and/or fencing. (e) Landscaping and/or trees of an adequate caliper shall be provided in the front yard of townhouse dwellings at a rate of one tree per two townhouse units. (f) To create additional opportunity for development on designated sites A, B, C, D, and E on Schedule B of this Bylaw, provisions are established to permit construction of laneways narrower than the standard public street width to provide access to the development, provided that the laneway is of adequate width to facilitate the safe movement of traffic to and from the site and adequate [sic] addresses maintenance. (g) Measures including lot grading shall be required to adequately dispose of storm and surface water. (h) Provisions are established to ensure individual townhouse units and any required site improvements are maintained to a high standard. [29] [Emphasis added] [30] Section 231 of the Municipal Government Act deals with site-plan approvals. It states, inter alia, that a development permit shall not be issued for a development in a site-plan approval area unless the class of use is exempt from site-plan approval as set out in the land-use by-law and the development is otherwise consistent with the requirements of the land-use by-law or the Development Officer has approved an application for site-plan approval and the development is otherwise consistent with the requirements of the land-use by-law. [31] Section 232(1) of the said Act also deals with site-plan approvals and states: Site-plan approval 232 (1) A development officer shall approve an application for site-plan approval, unless the (a) matters subject to site-plan approval do not meet the criteria set out in the land-use by-law; or (b) [sic] applicant fails to enter into an undertaking to carry out the terms of the site plan. (2) Where a development officer approves or refuses to approve a site plan, the process and notification procedures and the rights of appeal are the same as those that apply when a development officer grants or refuses to grant a variance. ............ (3) The council, in hearing an appeal concerning a site-plan approval, may make any decision that the development officer could have made. ............ [Emphasis added] [32] It is important to note that in the case at Bar, the Applicants do not suggest that the development in question fails to comply with the applicable land-use by-law (In fact, they acknowledge that it does comply with the said by-law.) Their position is that the development does not adhere to the policies and objectives of the applicable Municipal Planning Strategy and that Council erred by not adhering to s. 217 of the Municipal Government Act during the second appeal hearing. Section 217 of the said Act reads as follows: No action inconsistent with planning strategy. 217(1) A municipality shall not act in a manner that is inconsistent with a municipal planning strategy. .......... [33] I will now review the four factors in the pragmatic and functional approach in order to determine the appropriate standard of review in relation to this second issue. [34] There is no privative clause or statutory right of appeal in relation to Council’s decision concerning this site-plan approval. The presence of a privative clause would usually suggest a high level of deference to the original decision maker. The absence of such a clause, however, is not as significant and does not suggest a high standard of scrutiny where other factors suggest a low standard (Pushpanathan v. Canada (Minister of Citizenship and Immigration), supra.) The fact that there is no statutory right of appeal, as there is for other decisions (such as the approval or refusal of a Development Agreement or the approval or refusal of Council to amend a land-use by-law) in my view suggests deference. [35] The next factor is the expertise of the body under review on the matter in issue compared to that of the reviewing Court. While on matters of planning and development generally, Council could be expected to have a higher level of expertise than the Court – on this issue (whether Council failed to adhere to s. 217 of the Municipal Government Act) which involves an interpretation of the relevant statute, it is my view that the Court has the greater level of expertise. This suggests little deference is owed to Council on this issue. [36] I must then consider the purpose of the governing legislation. The Municipal Government Act and Part VIII specifically, suggest a legislative intent to vest municipalities with broad authority over planning. Section 2 of the Act states: Purpose of Act 2. The purpose of this Act is to (a) give broad authority to councils, including broad authority to pass by-laws, and to respect their right to govern municipalities in whatever ways the councils consider appropriate within the jurisdiction given to them; .......... [37] The purpose of Part VIII (as described in s. 190) includes enabling “municipalities to assume the primary authority for planning within their respective jurisdictions, consistent with their urban or rural character, through the adoption of municipal planning strategies and land-use by-laws consistent with interests and regulations of the Province”. All of this suggests deference. [38] In the case before me, Council was exercising its appellant authority under s. 232 of the Act. Pursuant to that section, Council was permitted to make any decision that the Development Officer could have made. This too suggests deference. [39] Finally, I must consider the nature of the question. In my view, the question of whether Council failed to adhere to s. 217 of the Municipal Government Act involves an interpretation of the said Act and hence is a question of law. This often suggests little deference to the body under review although it is not, in itself, determinative of the matter (see Nova Scotia Teachers Union v. Nova Scotia Community College, 2006 NSCA 22.) [40] The ultimate question is whether the legislature intended that the issue under review be left to Council (see Nova Scotia Teachers Union v. Nova Scotia Community College, supra., at ¶11.) While ordinally, decisions of a municipal council are given significant deference (see for example Patriarche v. Lunenburg (Town), [2001] N.S.J. No. 458 and Grove v. Chester (District), [2002] N.S.J. No. 145 affirmed at [2003] N.S.J. No. 6) in this case, the issue as framed by the Applicants, is whether Council failed to adhere to s. 217 of the Municipal Government Act. After weighing the four contextual factors, including the nature of the question, I have concluded that the appropriate standard of review on this issue is correctness. [41] I will now return to the two issues raised by the Applicants. 1. Did Council act in excess of jurisdiction and violate the doctrine of functus officio by reopening the appeal process in the face of a lawfully made decision to deny the approval of the site-plan? [42] The Applicants argue that Council acted in excess of jurisdiction and violated the doctrine of functus officio by reopening the appeal of the site-plan approval. In other words, that Council exceeded its jurisdiction by calling a second hearing. [43] The Respondent submits that Council had breached the audi alteram partem rule by not giving the Developer an opportunity to speak at the initial appeal hearing and that this constituted a breach of natural justice. It is therefore argued that the initial proceeding was a nullity and, as a result, Council was not functus and was free to proceed with the second hearing. It is further submitted that it was not necessary for Council’s initial decision to be formally quashed (based on the purported breach of natural justice) before the second hearing could be held. [44] As indicated previously, the answer to this question requires an analysis of whether the Developer was denied a right to be heard at the initial hearing. [45] The facts of the case disclose that prior to the initial hearing, Mr. Jess Landry (of Watermark) asked Mr. Audas (the Development Officer in question) whether someone from Watermark would be given an opportunity to speak at the appeal hearing. Mr. Landry was advised that the Chair of the meeting would ask whether someone from Watermark wanted to speak before Council made its decision. Through inadvertence this did not occur. [46] The next day, Mr. Landry telephoned Mr. Audas to inquire as to why he had not been invited to speak at the hearing. He said that he had expected that someone was going to ask him to speak at the meeting. Mr. Audas recalls that Mr. Landry asked for a copy of the minutes of the hearing to give to his lawyer. [47] The matter was then brought to the attention of Council and a motion was passed to conduct a new appeal hearing. The notice of the second hearing that went out to the abutting property owners contained the following: Subsequent to the appeal hearing on May 25, 2005 it has been brought to the Municipality’s attention that the applicant was not invited to speak. A review of the minutes of the meeting confirmed that this was the case. The purpose of a hearing is for Council to hear from all those involved who wish to speak or submit a written argument prior to Council making their decision. This ensures a fair process and Council is provided with all of the relevant information/opinions before making a decision. Where did this not occur, Harbour East Community Council has decided to conduct a new appeal hearing for 7 St. George’s Lane, Dartmouth – Site Plan Application 11771. [48] At the commencement of the second appeal hearing the Chair stated: “The next item on the agenda is item 8.2, an appeal hearing, 8.2.1, the appeal of Development Officer’s decision to grant site plan approval at 7 George’s Lane in Dartmouth. I just want to explain to those present the reason that we are here is that I, as Chair, inadvertently neglected to specifically invite or offer the proponent, who is, in this case, the respondent to the appeal, the opportunity to make a presentation, and that is the proponent/respondent’s right to do that, and that wasn’t clarified or invited at the original appeal hearing. Therefore, the legal direction and advice that we got is that, in fairness, to be sure that all opportunity is provided to everyone who should have an opportunity that we just repeat the process. So it’s not a second opportunity, in any sense. It’s redoing the procedure because it was incorrectly done previously......” [49] I am satisfied that the Developer in this case was not given an opportunity to be heard at the initial hearing after being advised that such an opportunity would be given and that in the circumstances of this case, this constituted a breach of natural justice. [50] The Applicants have made note of the fact that the Developer’s representative did not rise at the time of the initial hearing and announce that he wished to speak. Nor did he rise to protest the fact that the vote was taking place before he was offered a chance to be heard. [51] It must be remembered that Mr. Landry was advised that he would be invited to speak before Council made its decision. It is therefore understandable that he did rise at the time of the initial hearing and announce that he wished to speak. [52] Mr. Landry acknowledges that he did not rise to protest on the evening of the initial hearing when he was not invited to speak. According to the evidence, the May 25th, 2005 appeal hearing was the first such hearing that Mr. Landry had ever been to. He said that he would not have known who to protest to and that this meeting of Council did not seem like the type of forum that you would get up and start “blurting something out”. [53] Mr. Landry did call the Development Officer the next day and inquired as to why he had not been invited to speak after being told that an such invitation would be extended. While, in my view, it was incumbent upon Mr. Landry to raise his concern about procedural fairness in a timely manner, I am satisfied that in the circumstances of this case his actions were reasonable and his failure to rise in protest at the meeting did not preclude the conclusion that natural justice had been breached in the circumstances. [54] The Applicants have also raised the fact that the Developer did not formally request a new hearing before Council nor did it file a formal protest in writing concerning this matter. They have referred the Court to the case of Bell Canada v. Allstream Corp., [2004] F.C.J. No. 1491 where the Federal Court of Appeal held that a party may not attack a decision of an administrative tribunal for breach of a duty of fairness on the basis of the tribunal’s failure to afford some other person their procedural rights. In other words, if the person whose procedural rights are violated chooses not to challenge that breach, another party cannot rely on the breach to impugn a decision of the body under review. [55] As I understand it, the argument being made on behalf of the Applicants in this case is that since the Developer did not formally request a new hearing or file a formal complaint in writing concerning this matter, Council is prevented from considering the matter because the aggrieved party has not pursued the matter. [56] In my view, Bell Canada, supra, has little application to the case at Bar. In the case before me, the aggrieved party (the Developer) contacted Mr. Audas the day following the initial hearing to inquire as to why he was not invited to speak at the hearing as was anticipated. Mr. Audas recalls that Mr. Landry asked for a copy of the minutes of the meeting to give to his lawyer. The matter was then brought to the attention of Council and a decision was made that a new hearing should be held. These facts distinguish Bell Canada, supra, where the aggrieved party did not complain about the alleged procedural breach. [57] In my view, Mr. Landry’s telephone call to Mr. Audas the day following the initial hearing was sufficient notice of the Developer’s protest concerning the procedural fairness issue and Council was justified in reviewing the matter despite the fact that a formal request was not made for a new hearing nor was the complaint reduced to writing. [58] The Applicants have also raised the fact that Watermark apparently decided not to take legal action following the initial hearing. At the time of the second hearing the president of Watermark spoke and stated: “.........So then as we – as I (inaudible) was accepted by the City and went to Council. We also had a little fallout from that. At the end of that we looked at our options. Our options were (1) legal recourse – yes, we considered it but not being of a litigious nature I decided against it. We were told by legal counsel that, in fact, if we did decide to go forward that we had an excellent chance of winning. We decided not to.........” [59] It is not clear from the above passage whether the Developer was talking about legal recourse over not being given an opportunity to be heard at the original hearing or legal recourse in relation to Council’s initial decision not to uphold the Development Officer’s decision. In any event, it appears that the Developer was not intending to take any kind of legal action arising out of the first hearing. [60] It is also unclear from the above passage when the decision was made by the Developer not to pursue a legal remedy (ie: whether the decision was made before or after the parties were advised that a second hearing would be held.) In addition, there is no suggestion that Council was informed that the Developer did not intend to pursue a legal remedy. Council knew that Mr. Landry had contacted Mr. Audas inquiring as to why he had not been invited to speak and decided that the proper thing to do was to hold a new hearing. The subsequent statement by the president of Watermark that the company had decided not to pursue legal recourse does not, in my view, lead to the conclusion that Council should not have called a second hearing. [61] Council was obliged to observe the rules of natural justice when conducting the appeal hearing relating to this development. An interested party had been told that they would be invited to speak before Council made its decision. Through inadvertence this did not occur. The aggrieved party raised the issue in a timely way and Council determined that a second hearing should be held. In my view, it was proper for Council to attempt to correct this breach of natural justice. [62] The issue then becomes whether Council was functus at the conclusion of the first hearing so that they were unable to hold the subsequent hearing. In other words, could Council recognize the defect and cure it themselves by holding a new hearing or were they prevented from holding the August 4th, 2005 hearing based on the doctrine of functus officio? In addition, the question has been raised whether Council’s initial decision had to be formally quashed before the second hearing could be held. [63] The question of whether the doctrine of functus officio applies to administrative tribunals has been considered on a number of occasions over the years. In the case of Trizec Equities Ltd. v. British Columbia (Area Assessor Burnaby-New Westminister), [1983] B.C.J. No. 1803 (B.C.S.C.) a hearing was scheduled to consider municipal tax assessments for two large shopping centers. The property owner appeared at the time and place stated for the hearing in order to contest proposed increases in the assessments. Upon arrival, it learned that the matter had been considered earlier in the day in its absence and that its tax assessments had been increased. At the request of both the assessor and the property owner a new hearing was conducted. At the conclusion of the second hearing, the Court of Revision (the body that deals with such matters) again concluded that the tax assessments in question should be increased. An appeal was then launched to the Assessment Appeal Board who sought the opinion of the British Columbia Supreme Court. In argument, counsel for the property owner submitted that the Court of Revision became functus at the conclusion of the first hearing with the result that it was powerless to make any further decisions in relation to the matter. Consequently, it was argued, the decision made at the conclusion of the second hearing was without force and effect. Counsel for the municipality argued that the original hearing was taken in excess of the Board’s jurisdiction and consequently, was a nullity. It was therefore submitted that it was as though the first hearing never existed and accordingly, it was open to the Court of Revision to reconvene, hold a proper hearing and render a valid and binding decision. McLachlin, J. (as she then was) considered the matter and stated at ¶18: I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision: Lange v. Board of School Trustees of School District No. 42 (Maple Ridge), (1978) 9 B.C.L.R. 232, (B.C.S.C.); Wilfred M. Posluns v. The Toronto Stock Exchange [1968] S.C.R. 330. In the latter case, the Supreme Court of Canada quoted from Lord Reid's reasons for judgment in Ridge v. Baldwin [1964] A.C. 40, where he said: ‘I do not doubt that if an officer or body realizes that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid.’ [64] It is notable that in Trizec, supra, the initial decision was not formally quashed before the second hearing was held. In other words, the Court accepted that the body under review could recognize the defect in the initial hearing and cure it by holding a new hearing without the need of the first decision being formally quashed. [65] The comments of McLachlin, J. (as she then was) in Trizec, supra, were referred to with approval by the Supreme Court of Canada in Chandler v. Alberta Association of Architects, [1989] S.C.J. No. 102. In that case, the Court dealt with the issue of the applicability of the doctrine of functus officio to administrative tribunals. Sopinka, J. speaking for the majority stated: ¶20............there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., supra. ¶21 To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. [66] In ¶24 of the same decision, Justice Sopinka stated “Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision” and referred to Trizec, supra, in support of this statement. He then stated at ¶25: ¶25 If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect. [67] The issue of the applicability of the doctrine of functus officio to administrative tribunals was dealt with more recently by the Nova Scotia Court of Appeal in Nova Scotia Government and General Employees Union v. Capital District Health Authority, supra. While that case dealt with a recognized exception to the functus officio rule (the ability of a tribunal to reopen a final decision where there was an error in expressing its manifest intent) the comments of the Court are nevertheless instructive. In that case Cromwell, J. A. stated at ¶36-38: [36] Functus officio is a rule about finality: once a tribunal has completed its job, it has no further power to deal with the matter. In relation to court proceedings, the principle means that, in general, once a court has issued and entered its final judgment, the matter may only be reopened by means of appeal. To this general rule, however, there are at least two exceptions: the court may correct slips and, as well, address errors in expressing its manifest intent: Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186; see also Civil Procedure Rule 15.07. [37] These principles developed in the context of court decisions which are subject to full rights of appeal. The existence of these full rights of appeal fostered the view that an appeal, rather than a reopening of the case before the initial decision-maker, was generally the preferred way to address errors in the initial decision. [38] The same general principles of functus officio apply to adjudicative administrative tribunals. However, as there are generally no full rights of appeal from such tribunals, the principles in this context rest solely on the rationale of finality. This difference in the underlying rationale has led the courts to say that, in the administrative law sphere, the principles of functus officio must be applied with greater flexibility and less formalism than in relation to court orders: Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. As Sopinka, J. put it at p. 862 of Chandler: ‘...Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.’ [68] In that decision the Court of Appeal commented upon the tension between two important goals of adjudication – finality and effectiveness. The Court noted “Finality, however, is not an absolute value, and so the functus officio rule is mitigated in certain circumstances in order to serve the goal of effectiveness” (¶ 1). [69] See also the Nova Scotia Court of Appeal decision in McCarthy v. Nova Scotia (Provincial Medical Board), [1994] N.S.J. No. 254 which suggests that if a decision is a nullity as a result of a breach of natural justice, the committee hearing the matter is not functus officio so as to prevent further consideration of the matter. [70] The Municipal Government Act does not confer power upon Council to reopen an appeal hearing being held pursuant to s. 232 of the Act. Nevertheless, I am satisfied that in the case before me there was an error in the initial appeal hearing which rendered Council’s decision a nullity and that, based on the above authorities, Council was permitted to start afresh in order to cure the defect. In my view, Council was not prevented by the doctrine of functus officio from holding the second hearing. [71] I am also satisfied that it was not necessary for the original decision to be formally quashed before a subsequent hearing could be held. Accordingly, the application to quash Council’s decision to hold the second appeal hearing is denied. 2. Did Council err during the second appeal hearing by not adhering to s. 217 of the Municipal Government Act as they believed that under the law they could not contemplate policies of the Municipal Planning Strategy in reaching a decision? [72] The minutes of the initial appeal hearing held on May 25th, 2005 indicate that in response to a question from one of the Councillors the Municipal Solicitor advised that Council’s decision on the appeal was to be based only on the criteria contained in the applicable land-use by-law and that even if Council believed that the land-use by-law was not in keeping with the Municipal Planning Strategy, Council must base its decision on the criteria found in the land-use by-law. The minutes further indicate that certain Councillors felt that the land-use by-law in question did not match or was not in keeping with the Municipal Planning Strategy. As indicated previously, at the conclusion of the first appeal hearing Council voted not to uphold the Development Officer’s decision to approve the site-plan application. [73] Less appears to have been said on this issue at the second appeal hearing held on August 4th, 2005. The Development Officer commented at this hearing that the Municipal Government Act requires that the application for site-plan approval be evaluated against the provisions of the land-use by-law. However, there appears to have been less discussion on the issue of whether Council could consider the policies of the Municipal Planning Strategy in reaching a decision. [74] At the conclusion of the second appeal hearing, Council voted to uphold the Development Officer’s decision to approve the site-plan application. The Applicants submit that Council failed to adhere to s. 217 of the Municipal Government Act at the second appeal hearing as they believed that they could not consider the policies of the Municipal Planning Strategy when rendering their decision. [75] Section 217 of the Municipal Government Act states that a municipality shall not act in a manner that is inconsistent with a Municipal Planning Strategy. The Applicants submit, inter alia, that the proposed development will impact negatively on this neighbourhood’s character and stability and that this is inconsistent with the policies set out in the Downtown Dartmouth Secondary Planning Strategy. In addition, the Applicants note that this development will involve the demolition of a home which is presently located on the said property. They suggest that this violates Policy N-5 of the said Planning Strategy which they say discourages demolition in favour of site re-development. All of this, they submit, supports the position that Council acted in a manner that is inconsistent with the applicable Municipal Planning Strategy when, at the second appeal hearing, they voted to uphold the Development Officer’s decision to approve the site-plan application. It is the Applicants’ position that when dealing with this appeal, Council was free to make an independent decision on whether to grant site-plan approval based on the policies set out in the applicable Municipal Planning Strategy and that in failing to do so, Council breached s. 217 of the Municipal Government Act. [76] The Respondents dispute the suggestion that Council acted in a manner that was inconsistent with the applicable Municipal Planning Strategy. They note that Policy N-4 of the Downtown Dartmouth Secondary Planning Strategy specifically states that small scale townhouse development may occur within this neighbourhood without impacting on neighbourhood character or stability and that such developments shall be considered through the site-plan approval process. They also note that s. 9(14) of the applicable land-use by-law states that a Development Officer shall approve a site-plan when all of the requirements set out in that section of the by-law have been complied with. In this case, all parties agree that the development in question complies with all such requirements. [77] For the reasons indicated previously, I am going to review this issue using a standard of correctness. [78] The issue of whether Council failed to adhere to s. 217 of the Municipal Government Act requires me to consider whether Council had the power to analyze this development against the policies set out in the applicable Municipal Planning Strategy or whether Council was required by s. 232 of the said Act to only consider the criteria set out in the applicable land-use by-law. [79] Section 217 of the Municipal Government Act is situated among those sections of the Act that deal with the creation of planning strategies and the adoption of land-use by-laws which are used to carry out those strategies. It is clear from the Act that when adopting or amending land-use by-laws, Council must carry out the intent of a Municipal Planning Strategy (see s. 219(3)) and must not act in a manner that is inconsistent with a Municipal Planning Strategy (s. 217(1)). [80] Once a Municipal Planning Strategy and land-use by-laws are in place, Council performs additional functions such as sitting in appeal of Development Officers’ site-plan approval decisions. Council’s powers when dealing with such an appeal are set out in s. 232 of the Act. Specifically, when hearing an appeal concerning a site-plan approval, Council can make any decision that the Development Officer could have made. [81] Pursuant to s. 232(1) of the Act, a Development Officer shall approve an application for site-plan approval unless the development which is subject to site-plan approval does not meet the criteria set out in the applicable land-use by-law or the applicant fails to enter into an undertaking to carry out the terms of the site-plan. In this case, the development in question met all of the criteria set out in the applicable land-use by-law and there is no suggestion that the developer failed to enter into an undertaking to carry out the terms of the site-plan. Accordingly, the Development Officer and ultimately, Council, were obliged to approve the application for site-plan approval. [82] Sections 217 and 232 of the Municipal Government Act are presumed to work together and, if possible, are to be interpreted so that there is no inconsistency between them. In my view, s. 217 of the Act did not provide additional powers to Council to analyze whether this development was consistent with the applicable Municipal Planning Strategy and Council was restricted when hearing the appeal to make any decision that the Development Officer could have made (s. 232(3)). In my further view, Council did not breach s. 217 of the Municipal Government Act when conducting this appeal hearing and s. 217 must be read subject to and in conjunction with the provisions of s. 232 of the said Act. [83] The Applicants have referred the Court to the case of Rogers v. Saanich (District) (1983), 146 D.L.R. (3d) 475 (B.C.S.C.) in support of their position on this issue. That case involved a petition and action seeking the quashing of a by-law on the basis that it was contrary to a community plan. In the case before me, the Applicants have not sought to quash the by-law in question. Rather, they have suggested that Council failed to adhere to s. 217 of the Municipal Government Act. [84] The Applicants have also referred the Court to the case of Patriarche v. Lunenburg (Town), supra. That case dealt with a discretionary decision of a Development Officer in relation to a variance application pursuant to s. 235 of the Municipal Government Act. In the case at Bar – there was no such discretion. As indicated previously, s. 232(1) of the Act states that a Development Officer shall approve an application for site-plan approval unless the development in question does not meet the criteria set out in the land-use by-law or the applicant fails to enter into an undertaking to carry out the terms of the site-plan. [85] In light of my findings, the application for an Order in the nature of certiorari is hereby dismissed. [86] An Order will issue accordingly. Deborah K. Smith Associate Chief Justice