MacDonald v. Nova Scotia (Attorney General)

MacDonald v. Nova Scotia (Attorney General) Court Supreme Court Date 2003-07-28 Citation 2003 NSSC 186 Docket 192196 Judge/Registrar/Adjudicator Scanlan, J. Edward (Honourable Justice) (SC) Document Type Decision Relations Library Sheet - MacDonald v. Nova Scotia (Attorney General) - 2003 NSSC 186 - 2003-07-28 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Cite as: MacDonald v. Nova Scotia ( Attorney General), 2003 NSSC 186 Date: 20030728 Docket: 192196 Registry: Halifax Between: Colin MacDonald, Michael Mulrooney, John McCurdy, Rebecca Bridge, Holly Chandler Applicants and The Attorney General of Nova Scotia, Representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondent DECISION Judge: The Honourable Justice J. E. Scanlan Heard: July 28, 2003, in Halifax, Nova Scotia Written Decision: September 2, 2003 Counsel: Mr. Joel E. Fichaud, Q.C./Mr. Jack A. Innes, Q.C., Solicitors for the Applicants Mr. Alexander M. Cameron, Solicitor for the Respondent Scanlan, J. : [1] The Applicants seek to have s. 4 of the Statutes of Nova Scotia, 2000, c.36; “An Act to amend c. 18 of the Acts of 1998, Municipal Government Act, and to require a vote to be taken with respect to the incorporation of the Town of Chester” declared invalid and of no force and effect pursuant to s. 52(1) of the Constitution Act, 1981". [2] In their brief the Applicants’ ask three questions: (1) Does s. 4 violate s. 96 of the Constitution Act, 1867? (2) Does s. 4 violate the constitutional separation of powers of the legislature and the Courts under the Constitution Act, 1867 and the Constitution Act, 1982? (3) Does s. 4 violate s.7 of the Charter of Rights by denying liberty contrary to the principles of fundamental justice? BACKGROUND [3] In December of 1998 a number of rate payers applied to the Utility and Review Board under the Municipal Boundaries and Representation Act, R.S.N.S., 1989, c.298, asking that an area in the Municipality of the District of Chester be incorporated as “The Town of Chester”. Throughout the proceedings before the Utility and Review Board the municipality opposed the application for town status. [4] The Municipal Boundaries and Representation Act, R.S.N.S., 1989, c.298, had been replaced by the Municipal Government Act, S.N.S., 1998, c.18. This Act was given Royal Assent on December 3, 1998 but did not come into force until April 1, 1999, several months after the application for Chester town status had been filed with the Utility and Review Board. On April 20, 1999, the Utility and Review Board held a hearing to determine the preliminary issues with respect to the application, deciding which law would govern the application. As part of that initial decision the Utility and Review Board noted that the application, as filed in December of 1998, survived the repeal of the Municipal Boundaries and Representation Act but that the procedural provisions of the Municipal Government Act would govern where they do not interfere with the substantive rights that had been vested or acquired by the rate payers under the Municipal Boundaries and Representation Act. [5] The Municipal Boundaries and Representation Act, s. 45, authorized the Utility and Review Board to direct a vote of the rate payers in the area affected but the decision as to whether or not to order a vote or plebiscite of the rate payers was left to the discretion of the Utility and Review Board. [6] The new Municipal Government Act made no specific reference to plebiscites respecting town status but it did provide that the Utility and Review Board may consider “any other evidence”. [7] The Respondent, Her Majesty the Queen in Right of the Province of Nova Scotia, was given notice of the application to the Utility and Review Board. Throughout the entire process prior to this application the Provincial Crown declined to participate at any hearings. [8] The municipality appealed the Utility and Review Board’s preliminary decision to the Nova Scotia Court of Appeal. By decision dated January 28, 2000, (Certain Ratepayers of Chester (District) v. Chester (District) [2000] N.S.J. No. 29) the Court dismissed all grounds of appeal. The crux of the January 28, 2000, decision of the Court of Appeal was to the effect that the Applicants’ substantive rights vested under the original Municipal Boundaries and Representation Act, surviving the repeal of that statute. The Court held that the substantive provisions of the new Municipal Government Act did not apply. [9] As part of the preliminary decision of the Utility and Review Board, (NSURB decision # NSUARB-MB-98-05 dated August 26, 1999) the Board determined that: At the present time, the Board does not consider it necessary to make a finding on the need for such a plebiscite, or its jurisdiction to order one. If the issue is considered further at some point in the future, the parties will be given an opportunity to submit written briefs on the matter. With respect to the issue of a plebiscite the Court of Appeal ([2000] N.S.J. No. 29) ruled at paragraph 14: I would also dismiss the fifth ground of appeal alleging the Board erred in not ordering a plebiscite as part of the preliminary order. The Board concluded that s.45 of the former Act gives it discretion to order a plebiscite. If the new Act governed, authority for a plebiscite could be found under a provision for “any other evidence” in s. 387(1)(d) should it become apparent at the main hearing that one was necessary. At a subsequent hearing the Utility and Review Board ruled at page 16 (NSURB decision # NSUARB-MB-98-05 dated July 14, 2000): At the last prehearing conference held April 17, 2000, the municipality repeated their request for a plebiscite. Upon having deliberated on this matter once more, the Board considers that the plebiscite should only be held, if at all, after the conclusion of the main public hearing on the merits. Based on all the reasons enumerated above, the Board again denies the municipalities request for a Board sanctioned plebiscite. Should the Board consider this issue at the conclusion of the hearing on the merits the Board will hear submissions from the parties respecting the holding of a plebiscite at that time. [10] A hearing was held before the Utility and Review Board commencing January 15, 2001 and continuing intermittently through to and including October 15, 2001. [11] The Utility and Review Board issued a decision dated June 28, 2002, (NSURB decision # NSUARB-MB-98-05 dated June 28, 2002) which purported to grant town status. The Board again considered the municipalities request that the Board order a plebiscite but refused that request. The Board stated at page 75 of the decision: In short, both Acts confer upon the Nova Scotia Utility and Review Board the sole responsibility and authority for making decisions with respect to applications for town status. The Board considers it significant that the legislature which was, no doubt, conscious of the Board’s sole responsibility and authority with respect to the formation of towns under the old Municipal Boundaries and Representations Act choose to preserve the Board’s sole responsibility and authority under the new Act. At the time of the adoption of the new Act, it would, quite obviously, have been simple to remove the responsibility and authority from the Board, place it elsewhere - for example, giving it to the legislature as a whole or to cabinet, or to the municipal councils of existing municipalities, or to the electorates in affected communities. [12] After the Utility and Review Board’s preliminary decision wherein it refused to hold a plebiscite the municipality held its own plebiscite prior to the Board’s hearings. In this regard the Board noted at paragraph seven of its decision: In that plebiscite, more than 41% of the eligible voters did not vote, but 80% of those who did, voted “no” to town status. The Board stated they would take the plebiscite into account along with other evidence in determining whether or not to grant town status to the designated area but noted at paragraph 16 of the decision that it was the Board that would make the decision: ...after taking into account all of the evidence before it, including the plebiscite held by the municipality. [13] The Board referred to the entirety of the evidence before it and determined at paragraph 218 that: ...the Board is satisfied that it is in the best interests of the inhabitants of the area that the application succeed. In the Board’s view, the social benefits of town status (especially in the area of planning, and other areas) are significant. Moreover, according to the evidence (see above paragraph 194), there should be no significant negative financial implications for the Municipality. [14] The municipality filed a notice of appeal from the Utility and Review Board decision to the Nova Scotia Court of Appeal dated July 24, 2002. Section 30 of the Utility and Review Board Act, S.N.S., 1992, c.11, permits an appeal on grounds of error of law or jurisdiction. A hearing of the appeal was scheduled for June 2, 2003, and the Province had not attempted to intervene before the Nova Scotia Court of Appeal. [15] In the fall of 2002 the Nova Scotia Legislature amended the Municipal Government Act by a Bill which received Royal Assent on November 28, 2002. That amendment can be summarized in two parts. Sections one, two and three require that in future applications requesting incorporation of a town, the Utility and Review Board shall direct the taking of a plebiscite. If the vote is “no” on the issue, the Utility and Review Board is required to dismiss the application. Section 4 of the amendment dealt exclusively with the Utility and Review Board decision of June 28, 2002, incorporating the town of Chester. That section required the taking of a vote in the affected area. The legislation set out the question to be asked in the plebiscite: Do you favour the incorporation of Municipal Polling District No. 3 of the Municipality of the District of Chester as a town? The Act went on to provide that if a majority of the electors voted in favour of the incorporation: The orders of the Nova Scotia Utility and Review Board are reinstated and declared to be of full force and effect. If the area voters who voted did not favour incorporation the amendment stated: The orders of the Nova Scotia Utility and Review Board with respect to the incorporation are void and of no force or effect. [16] A plebiscite was held on February 22, 2003 and approximately 73% of the ballots cast voted “no”. [17] On January 10, 2003, one month prior to the plebiscite the Applicants’ brought this application to challenge the constitutional validity of s. 4 of the amendment. The appeal to the Nova Scotia Court of Appeal has been adjourned pending the hearing now before the Court. ISSUES (1) Does s.4 violate s.96 of the Constitution Act, 1867? [18] Pursuant to s. 96 of the Constitution Act the power to review or set aside a decision of an administrative tribunal is one of the “core functions” of a Superior Court appointed pursuant to s.96. If the provincial legislature attempts to transfer this core function to any entity other than a s.96 Superior Court then the legislation is unconstitutional. In Farrah v. A.G. Quebec, [1978] 2 S.C.R. 638 the Quebec legislature established an appeals tribunal to hear appeals from decisions of the Quebec Transport Commission on any question of law, to the exclusion of any other Court. The Supreme Court of Canada held that provincial legislation violated s. 96 of the British North America Act. Justice Pratt at p. 656 stated: The net combined effect of s. 58(a) and of the privative clauses (ss. 24 and 72 of the Transport Act) is therefore to transfer to the Transport Tribunal part of the inherent supervisory authority that was vested in the Superior Court at the time of Confederation. [19] In Farrah the Court also noted at p. 646 that: Where an administrative appeal agency is constituted, divorced, as is the Transport Tribunal here, from involvement in the exercise of original jurisdiction under the Transport Act and given a purely appellate authority which includes the power conferred by s. 58(a), there is a meshing both of jurisdiction and power, giving it the form and authority of a s. 96 Court. The fact that by s. 59 of the Transport Act, the tribunal ‘may confirm, vary or quash any decision submitted to it and render the decision which, in its opinion, should have been rendered in the first instance’ simply underlines appellate authority of a kind which is normally given to appellate courts that meet the tests of s. 96. [20] This lack of constitutional authority in Provincial Legislatures to transfer supervisor jurisdiction of Superior Courts was again noted in Crevier v. A. G. Quebec [1981] 38 2 S.C.R. 220. Chief Justice Laskin stated at page 238: In short, what the Farrah case decided was that to give a provincially constituted statutory tribunal a jurisdiction in appeal on questions of law without limitation, and to reinforce this appellate authority by excluding any supervisory recourse to the Quebec Superior Court, was to create a s. 96 court. [21] There have been a number of legislative bodies which have enacted legislation using privative clauses which have limited, but cannot wholly exclude recourse to the Superior Courts. Privative clauses have had the effect of limiting recourse by way of judicial review from a provincial tribunal to the Superior Courts but have long been held invalid if they have the effect of transferring to the provincial tribunals part of the inherent supervisory authority that was vested in Superior Courts pursuant to s. 96. The legitimacy of these privative clauses was acknowledged by Chief Justice Laskin in Crevier v. Quebec (A.G.), [1981] 2 S.C.R. 220. Chief Justice Laskin noted at p. 237-238: This Court has hitherto been content to look at privative clauses in terms of proper construction and, no doubt, with a disposition to read them narrowly against the long history of judicial review on questions of law and questions of jurisdiction. Where, however, questions of law have been specifically covered in a privative enactment, this court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s.96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s.96, to determine the limits of its own jurisdiction without appeal or review. At page 234 of Crevier Chief Justice Laskin stated: ...where a provincial Legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions, the insulation encompassing jurisdiction, such provincial legislation must be struck down as unconstitutional by reason of having the effect of constituting the tribunal a s.96 Court. [22] In the case now before this Court, s.4 removes from the Utility and Review Board the right to make the final decision on the issue of whether or not a town charter should be granted for the town of Chester. The effect of s.4 is to place that final decision in the hands of the voters in the affected area. [23] Counsel for the Respondent referred to two decisions which highlight the fact that the legislature/parliament has authority to retroactively reverse the effect of a judicial decision. I refer, for example, to the case of Burmah Oil Co. et al. v. Lord Advocate, [1965] A.C. 75 (H.L.). This case dealt with a situation where Japanese forces were advancing in Burmah and British forces in retreat destroyed the oil facilities of the Burmah Oil Company so they would not fall into enemy hands. After the war the Burmah Oil Company sought compensation for the destruction of its property. In 1964 the House of Lords sustained the company’s claim to compensation. The British Parliament responded with the War Damages Act, 1965. That legislation in effect overruled the decision of the House of Lords in saying: No person shall be entitled at common law to receive from the Crown compensation in respect of damage to, or destruction of, property caused (whether before or after the passing of this Act, within or outside the United Kingdom) by Acts lawfully done by or on the authority of, the Crown during, or in the contemplation of the outbreak of, a war in which the Sovereign was, or is, engaged. This legislation was ultimately upheld by the Courts. [24] A similar issue arose in International Association of Heat and Frost Insulators and Asbestos Workers, Local 116 v. The Minister of Labour and Manpower and Steen Contractors Ltd. (1993), 121 N.S.R. (2d) 224. That case involved the Court’s interpretation of the Nova Scotia Trades Union Act wherein after the decision from the Court of Appeal, the House of Assembly passed amending legislation to ‘reverse the so-called “Steen” decision’. [25] The fact that the Provincial Legislature has the authority to establish municipal units is reflected in recent legislation creating the Halifax Regional Municipality. In the creation of the Halifax Regional Municipality the province substantially altered the corporate structure of a number of municipal units. [26] Counsel for the Applicant suggests he is prepared to acknowledge the legislative authority to enact legislation retrospectively as was done in the Steen case and the Burmah Oil case. I am satisfied this is an appropriate concession. The Applicants are left in the position whereby they are arguing that the legislature is entitled to enact provisions which will require a plebiscite prior to incorporation of a town. In fact, as conceded by counsel for the Applicants, even if s.4 is struck down by the Court after the judicial review is complete , the Legislature has the authority to legislate an end to the newly incorporated Town of Chester. The incorporated process would then start afresh. The Applicants’ argue that because s. 4 was enacted in the midst of an appeal, the legislation is invalid as it encroaches upon a “core function” of the s.96 Court. The appeal would be heard and it may or may not uphold the decision of the Utility and Review Board. [27] There is nothing in s.4 which would limit the Court of Appeal in its review of the steps taken prior to the February, 2003, plebiscite. In this case, in the plebiscite held pursuant to s.4, the majority voted “no”. If upheld, s.4 therefore renders any appeal by the Municipality moot. I am not satisfied s.4 infringes upon the core function of s.96 Courts in this case. The fact that the appeal to the Court of Appeal is rendered moot is merely incidental to the operation of the legislation which retroactively required a plebiscite as part of the Utility and Review Board process. Sections 2 and s.4 of the Act place constraints on the Board in terms of curtailing the Board’s right to approve an application to incorporate a town in the absence of voter support in a plebiscite. Nothing in either of those sections limits the right of the Court of Appeal to review the Utility and Review Board process as regards either error of law or jurisdictional error. [28] The fact that the legislators have chosen to change the rules of the process after the Utility and Review Board rendered its decision is a political decision. So long as the legislation does not contravene the Charter or go beyond the legislative authority of the Provincial Crown it would be improper for the Courts to interfere with this purely political decision. I am satisfied that s.4 does not go beyond the authority of the legislature. 2. Does s.4 violate the constitutional separation of powers under the Constitution Act, 1867, and the Constitution Act, 1982? [29] This issue is, in large part, a repetition of the discussion on the first issue. Courts and the Constitution Act, 1982, confirmed the separation of the legislative and judicial branches. The Constitution Act, 1867, contemplated a separation of legislative and judicial powers. In Fraser v. Public Service Staff Relations Board, [1985], 2 S.C.R. 455 at p. 469-470, Chief Justice Dickson stated: There is in Canada a separation of powers among the three branches of government - the legislature, the executive and the judiciary. In broad terms, the role of judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy. [30] As I have already noted it is for the legislature to decide policy issues related to the requirements for things such as incorporation of towns. I have also indicated the legislature has the authority to enact legislation which has retrospective implications. Although the effect of s.4 in this case may well be to render an appeal to the Nova Scotia Court of Appeal moot, s.4 does not infringe upon the role of the judiciary in interpreting and applying the law. It still remains within the authority of the Court of Appeal to interpret and apply the law as enunciated by the legislature. As noted by Chief Justice MacLaughlin Speaker of the House of Assembly v. Canadian Broadcasting Corp. (1993), 100 D.L.R. (4th) 212 (S.C.C.): Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other. [31] In the present case I am satisfied that to rule that the legislature could not enact s.4, requiring a plebiscite, would be overstepping the bounds of judicial authority. The separation of powers is a defining feature of the Canadian Constitution. Proper exercise of judicial power would seek not to have the Courts decide upon and enunciate legislative policies under the guise of judicial independence. This would be beyond the scope of judicial authority as conferred upon s.96 Courts by the constitution. As I have said, in the present case, s.4 may have the effect of rendering the appeal before the Court of Appeal moot but it is only an incidental consequence of the provincial legislature exercising its discretion in deciding upon and enunciating policy. 3. Does s.4 violate s.7 of the Charter of Rights by denying “liberty” contrary to the principles of “fundamental justice”? [32] The Applicants’ refer to s.7 of the Charter which states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [33] The Applicants’ submit that s.4 infringes upon their “liberty” interests contrary to the principles of fundamental justice. The Supreme Court of Canada had noted in Blencoe v. Human Rights Commission (British Columbia), [2000] 2 S.C.R. 307 at p. 309-310: The liberty interest protected by s.7 of the Charter is no longer restricted to mere freedom from physical restraint. “Liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices. This notion of personal autonomy was reflected in R. v. Morgentaler, [1988] 1 S.C.R. 30, where the Court, referring to s.251 of the Criminal Code, indicated that the liberty interest is rooted in fundamental notions of human dignity, personal autonomy, privacy and choices in decisions regarding an individuals fundamental being. [34] The Applicants’ suggest that an individual’s choice of local government is one of those important and fundamental life choices as referred to in s.7 of the Charter. The Applicants’ refer to an affidavit filed by Mr. Colin MacDonald in which he described the choice of local government which would regulate his life and the lives of his family members as being one of his most important personal choices. [35] I can think of few rights which are more essential to the continuation of a democratic form of government than the right to vote. Without the right to vote there is no democracy. An individual’s right to vote is a fundamental right which is protected by the Charter. The selection of a government through the democratic voting process is the culmination of the community exercising its right to vote. Individuals can expect protection of their individual right to vote. On an individual basis it is the right to vote that is entitled to protection. In view of the plebiscite results in this case ironically, on a collective basis if this Court were to grant the application as requested it may well deprive the majority of the population in the designated area of their voice on the issue as to whether or not there should be a town incorporated. Those who voted “no” in the plebiscite would then be entitled to argue that their right to vote has been taken away by this Court. [36] I am satisfied that nothing in s.7 deprives the Applicants’, on an individual basis of their right to participate in choosing the form of government. Section 7 does not guarantee any single Applicant or citizen that their personal view as to the form of government will prevail. It is within the authority of the provincial legislature to establish the process and requirements for incorporation of a town. As already noted this process and the substantive requirements may be altered retrospectively. Under the current legislation the Applicants’ will have the right to vote in selecting their representatives in any form of government. In addition they had the right to participate in the plebiscite which had a direct impact on the issue of whether a town would be incorporated. I am satisfied that the amended legislation has given all individuals in the affected area additional input on the issue of local government as opposed to having deprived them of a right to vote. [37] The application shall be dismissed. [38] I am prepared to receive written submissions on the issue of costs. J. 09/02/03