MacDonald v. Nova Scotia (Attorney General)

MacDonald v. Nova Scotia (Attorney General) Court Court of Appeal Date 2004-03-30 Citation 2004 NSCA 48 Docket CA 208164 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - MacDonald v. Nova Scotia (Attorney General) - 2004 NSCA 48 - 2004-03-30 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: MacDonald v. Nova Scotia (Attorney General), 2004 NSCA 48 Date: 20040330 Docket: CA 208164 Registry: Halifax Between: Colin MacDonald, Michael Mulrooney, John McCurdy, Rebecca Bridge, Holly Chandler Appellants v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondent Judges: Roscoe, Bateman and Cromwell, JJ.A. Appeal Heard: March 30, 2004, in Halifax, Nova Scotia Written Judgment: April 7, 2004 Held: Appeal dismissed per oral reasons for judgment of Bateman, J.A.; Roscoe and Cromwell, JJ.A. concurring Counsel: John C. MacPherson, Q.C., for the appellants Alexander Cameron, for the respondent Reasons for judgment: [1] This is an appeal from a disposition by Justice J. Edward Scanlan of the Supreme Court of Nova Scotia, dismissing the appellants’ application for a declaration of invalidity pursuant to s. 52(1) of the Constitution Act, 1982, being Canada Act 1982, (U.K.) Schedule B. The decision of Justice Scanlan is reported as MacDonald v. Nova Scotia (Attorney General) at (2003), 216 N.S.R. (2d) 383; N.S.J. No. 317 (Q.L.). [2] A group of ratepayers applied to have a portion of the Municipality of the District of Chester incorporated as the Town of Chester. The Municipality opposed incorporation. After the initiation of the application, but before the hearing before the Nova Scotia Utility and Review Board (“URB”), the new Municipal Government Act, S.N.S. 1998, c. 18, was proclaimed in effect, replacing the Municipal Boundaries and Representation Act, R.S.N.S. 1989, c. 298. A preliminary issue arose as to which Act governed the application. This was ultimately resolved in this Court (reported as Certain Ratepayers of Chester (District) v. Chester (District), [2000] N.S.J. No. 29 (Q.L.)) in favour of application of the new statute. This issue having been resolved, the application for town status again came before the URB for determination on its merits. [3] The Municipality, in opposing the application, had urged the URB to order a plebiscite on the issue. The Board declined to do so, in part, because it was not clear in the new legislation that it had the power to do so. The Municipality held its own plebiscite before the final order of the Board. Only about 59% of eligible voters turned out. Of those voting, however, more that 80% opposed the granting of town status. The Board took the results of that plebiscite into account, but on June 28, 2002, after a comprehensive hearing process, issued an order granting town status. In July of 2002, the Municipality filed an appeal from the URB decision to the Nova Scotia Court of Appeal. [4] In the fall of 2002 the Legislature amended the Municipal Government Act, (S.N.S. 2002, c. 36 - “The Plebiscite Amendment”). Sections 2 and 3 of the amendment required that, in future applications, where the Board determined that incorporation was “in the best interests of the inhabitants”, before incorporating a town, the Board must direct the taking of a plebiscite, the results of which would determine whether town status was granted. Section 4 of the Amendment deals specifically with the Chester application which, as set out above, at the time of the amendment, was on appeal to this Court from the URB. That section suspends the Board’s order that a Town of Chester be incorporated and requires the holding of a plebiscite. The section further directs that in the event of a “no” vote, the Board’s order of incorporation would be of no force and effect. Alternatively, if the vote was in favour of town status, then the order of the URB would be reinstated. [5] The applicant ratepayers applied to the Supreme Court of Nova Scotia to have s. 4 of the Plebiscite Amendment declared to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. They did not challenge the validity of ss. 2 and 3. That application came before Justice Scanlan and was dismissed. This is the appeal from that disposition. [6] The appellant says that Justice Scanlan erred in dismissing the application in that he failed to find that s. 4 of the Plebiscite Amendment violates the constitutional separation of powers under the Constitution Act, 1867; violates s. 96 of that same Act; and, as well, violates s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. [7] Notwithstanding Mr. MacPherson’s able arguments in his factum and before us today, we are not persuaded that this appeal has merit. We are in substantial agreement with the reasons given by Scanlan, J. The appellants acknowledge that the general subject-matter of the Plebiscite Amendment is within the competence of the provincial Legislature and that, generally, that body has the power to legislate retroactively and retrospectively. It is our view that the enactment of s. 4, altering as it does, the conditions for the granting of town status, does not “supplant a core function” of the s. 96 Courts. It does not effect a transfer of the superior courts’ inherent supervisory authority to the legislature or to a provincial tribunal. The effect of s. 4 is to remove from the URB and transfer to the electorate, the ultimate decision on town status. The URB, however, continues to play a role in the application process, which may ultimately lead to a vote, and the Board’s function in that regard is subject to appeal. Pursuant to s. 30 of the Utility and Review Board Act, S.N.S. 1992, c. 11, this Court’s power to review the decisions of the URB on matters of law or jurisdiction remains in tact. Nor does the impugned section, by injecting at this stage of the process the requirement that there be a favourable plebiscite as a condition to town status, violate the appellants’ s. 7 liberty interests. [8] Accordingly, the appeal is dismissed with costs to the respondent in the amount of $2000.00 inclusive of disbursements. Bateman, J.A. Concurred in: Roscoe, J.A. Cromwell, J.A.