Canada Life Assurance Company v. Nova Scotia (Municipal Affairs)

Canada Life Assurance Company v. Nova Scotia (Municipal Affairs) Court Court of Appeal Date 1996-04-19 Citation 1996 NSCA 96 Docket CA 124042 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Hallett, J. Doane (Honourable Justice) (CA); Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 124042 NOVA SCOTIA COURT OF APPEAL Cite as: Canada Life Assurance Company v. Nova Scotia (Municipal Affairs) , 1996 NSCA 96 Hallett, Freeman and Roscoe, JJ.A. BETWEEN: THE CANADA LIFE ) Gary A. Richard ASSURANCE COMPANY ) for the Appellant Appellant ) ) - and - ) ) ) THE HONOURABLE SANDY JOLLY, ) Peter M. Rogers MINISTER OF MUNICIPAL AFFAIRS and ) for the Respondent, THE MUNICIPALITY OF THE COUNTY) The Municipality OF COLCHESTER ) Respondents ) ) ) - and - ) ) SOBEY LEASED PROPERTIES LIMITED ) Robert G. Grant and and SOBEYS INC. ) Nancy G. Rubin Third Parties ) for Third Parties, ) Sobeys ) ) ) Appeal Heard: ) March 28, 1996 ) ) Judgment Delivered: ) April 19, 1996 ) ) THE COURT: Appeal allowed per reasons for judgment of Freeman, J.A.; Hallett and Roscoe, JJ.A., concurring. Freeman, J.A. The appellant, Canada Life, cannot develop its shopping centre on land it owns on a flood plain in the Town of Truro because of the town's land use by-law. Recent by-laws of the adjoining Municipality of the County of Colchester would permit its competitor, Sobey's, to develop its shopping centre on similar, neighbouring land just outside the town. The appellant applied to the Supreme Court of Nova Scotia for judicial review of a ministerial decision approving the Colchester by-laws. The certiorari application was struck out in interlocutory proceedings before a chambers judge under Civil Procedure Rule 14.25. He found the appellant's pleadings did not disclose a cause of action because ministerial approval was a legislative act beyond the review of the courts. In Barkhouse v. Steele (1995), 142 N.S.R. (2d) 397 (N.S.C.A.) Roscoe, J.A., discussed the test to be applied: The relevant Rule is as follows: 14.25 (1) The court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that, (a) it discloses no reasonable cause of action or defence; . . . (2) Unless the court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under paragraph (1)(a). The issue raised by this appeal is whether the trial judge erred in law in finding that the statement of claim discloses no reasonable cause of action. The Chambers judge, in his decision, applied the test established by this court in Vladi Private Islands Ltd. v. Haase et al. (1990), 96 N.S.R. ( 2d) 323 on applications of this type: . . . It is clear from the authorities that a judge must proceed on the assumption that the facts contained in the statement of claim are true and, assuming those facts to be true, consider whether a claim is made out. An order to strike out a statement of claim will not be granted unless on the facts as pleaded the action is "obviously unsustainable". . . . In Seacoast Tower Services Ltd. V. McLean (1986), 75 N.S.R. (2d) 70 at p. 73 Matthews, J.A., stated: A statement of claim may be struck out under rule 14.25(1)(a) where it is clear on the face of the pleadings that no reasonable cause of action is disclosed or, to put it another way, that, on the face of the pleadings, the action is obviously unsustainable. Here, the judge in chambers did not follow the principle that the purpose of an application under that rule is not to try issues, but determine if there are issues to be tried. It is, therefore, not necessary for the appellant to show that the Minister’s decision was justiciable; that is, to show it was not beyond review by the court because it was not a legislative act reflecting government policy. It is enough for the appellant to show that an arguable issue exists as to whether it is subject to review. There is no clear-cut line of demarcation between functions which are reviewable and those which are not. In Martineau v. Matsqui Institution Disciplinary Board (1979), 30 N.R. 119 at 149 Dickson, J., spoke of a spectrum: Between the judicial decision and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible graduation of procedural fairness through the administrative spectrum. Following a public process under the Planning Act R.S.N.S. 1989, c. 346, the Municipality of the County of Colchester adopted the Central Colchester Municipal Planning Strategy and the Central Colchester Land Use Bylaw on August 25, 1994. These were then submitted to the Minister of Municipal Affairs, the Honourable Sandy Jolly, who approved them with certain amendments on November 18, 1994, pursuant to s. 65(2) of the Planning Act, which provides: 65 (2) The Minister shall approve a land-use by-law or amendment thereto submitted to the Minister for approval unless (a) it contravenes or conflicts with the law; (b) it conflicts with an applicable provincial land-use policy or regulation; (c) it does not carry out the intent of the applicable planning strategy or amendment thereto; (d) in the opinion of the Minister, it conflicts with any other provincial interest. Section 65(2) must be read in light of the purpose of the Planning Act set out in s. 2, and particularly subsection (b): The purpose of this Act is to . . . (b) enable 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, land use by-laws and subdivision by-laws consistent with the policies and regulations of the Province. Subsection 5 of s. 65 is also relevant in this context: Where the Minister does not make a decision pursuant to subsection (4) within the time set out in that subsection, the land-use by-law or amendment thereto is deemed to be approved. "Primary authority" for land use is thus assured to municipalities. Section 65(2) gives the Minister a window of opportunity to protect provincial interests and ensure the by-law is not in conflict with other laws, but if she does not act in sixty days, the window is closed and the by-law passed by the municipality becomes effective. This bears on the nature of the minister’s discretion under the Planning Act, and it might be argued that if the Minister wishes to approve by-laws despite the presence of one of the reasons in s. 65(2) (a), (b), (c), or (d), she only has to delay sixty days. However, that in itself would presumably be an exercise of discretion, and it would raise further issues as to good faith. Unless one of the cogent reasons set out in s. 65(2)(a), (b), (c), or (d) is identified, the Minister must approve the by-law. But must she refuse approval when a reason is identified? The appellant argues that the "unless" in s. 65(2) should be interpreted as a mandatory provision depriving the Minister of discretion to approve a by-law when one of the conditions listed in s. 65(2)(a), (b), (c), or (d) is identified. Even if one entertains reservations as to whether such an argument is likely to succeed, an issue of statutory interpretation is raised which is clearly within the jurisdiction of the courts. The appellant argues that construction on the flood plain is in conflict with a provincial interest, the policy established by the Flood Damage Reduction Program signed between the federal and provincial governments dated May 15, 1995, which provides that the Province will encourage zoning authorities to impose restrictions to prevent flood damage. The appellant should not be precluded from arguing that the Minister's duty not to approve the by-law was mandatory or if discretionary, that her discretion was not properly exercised. In my view, there is an arguable issue. In finding that her approval was a legislative act and therefore, apparently, non- justiciable, the chambers judge sought authority in Reference re Language Rights under the Manitoba Act, 1870 (1992), 88 D.L.R. (4d) 385 (S.C.C.). That case, however, was concerned with defining legislative documents which were required to be printed in both English and French under the Manitoba Act, 1870, and does not change the conventional character of executive or administrative ministerial functions. These are discussed in Constitutional Law of Canada, Peter W. Hogg, 3rd edition, Carswell, Toronto, 1992, pp. 9-6 to 9-9. In Finlay v. Canada (1986), 71 N.R. 338 at p. 367 LeDain, J., stated: . . . Where there is an issue which is appropriate for judicial determination the courts should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determination by the legislative or executive branches of government. In Irving Oil Limited, Canaport Limited, Kent Lines Limited and Thorne’s Hardware Limited v. National Harbours Board (1983), 46 N.R. 91, Dickson, J., stated at p. 95: The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial review: The Attorney General of Canada and Inuit Tapirisat of Canada and the National Anti-Poverty Organization, [1980] 2. S.C.R. 735, at p. 748; 33 N.R. 304. I have no doubt as to the right of the courts to act in the event that statutorily prescribed conditions have not been met and where there is therefore fatal jurisdictional defect. Law and jurisdiction are within the ambit of judicial control and the courts are entitled to see that statutory procedures have been properly complied with: . . . Decisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings. Although, as I have indicated, the possibility of striking down an order-in-council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action. In Reference re Canada Assistance Plan (Canada) (1992), I Admin. L.R. (2d) 1, Sopinka, J., stated at p. 22: In considering its appropriate role the court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch. He continued at p. 23: . . . Since only a court can authoritatively resolve a legal question, its decision will serve to resolve a controversy or it will have some other practical significance. Applying the foregoing to this appeal, I am of the view that both of the questions posed have a significant legal component. The first question requires the interpretation of a statute of Canada and an agreement. The second raises the question of the applicability of the legal doctrine of legitimate expectations to the process involved in the enactment of a money bill. Both these matters are in contention between the so-called "have provinces" and the federal government. A decision on these questions will have the practical effect of settling the legal issues in contention and will assist in resolving the controversy. Indeed, there is no other forum in which these legal questions could be determined in an authoritative manner. In my opinion, the questions raise matters that are justiciable and should be answered. In my view, the chambers judge was in error to characterize the Minister's approval of the by-law in question as a purely legislative act. There is a legal component which raises an issue the appellant is entitled to argue on the merits. Accordingly, the application to strike under Civil Procedure Rules 14.25 ought not to have been granted. I would allow the appeal, restore the application, and return the matter to the chambers judge for determination of the issue of standing. It has come to the attention of the panel that the chambers judge addressed the issue of costs in a supplementary decision. I would not make an order for costs on this appeal at this time, but would invite counsel to provide written submissions as to costs on or before May 6, 1996. FREEMAN, J.A. Concurred in: Hallett, J.A. Roscoe, J.A. C.A. No. 124042 NOVA SCOTIA COURT OF APPEAL BETWEEN: THE CANADA LIFE ASSURANCE ) ) Appellant ) ) - and - ) ) REASONS FOR ) JUDGMENT BY: THE HONOURABLE SANDY JOLLY ) MINISTER OF MUNICIPAL AFFAIRS ) FREEMAN, J.A. and THE MUNICIPALITY OF THE ) COUNTY OF COLCHESTER ) ) Respondents ) - and - ) ) ) SOBEY LEASED PROPERTIES LIMITED ) and SOBEYS INC. ) ) Third Parties ) ) ) )