Wells v. Amherst (Town)

Wells v. Amherst (Town) Court Supreme Court Date 2014-09-24 Citation 2014 NSSC 378 Docket Amh 428524 Judge/Registrar/Adjudicator Van den Eynden, Elizabeth (Honourable Justice) (SC) Document Type Decision Relations See also - Wells v. Amherst (Town) - 2019 NSSC 251 - 2019-07-31 - Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Wells v. Amherst (Town), 2014 NSSC 378 Date: 20140924 Docket: Amh. No. 428524 Registry: Amherst Between: Walter Wells Applicant v. Municipality of the Town of Amherst Respondent _____________________________________________________________ DECISION _____________________________________________________________ Judge: The Honourable Justice Elizabeth Van den Eynden Heard: 18 September 2014, in Amherst, Nova Scotia Oral Decision: 24 September 2014 Release of Written Decision: October 17, 2014 Counsel: Mr. Jim O’Neil Mr. Doug Shatford, Q.C. O’Neil Law Offices Creighton, Shatford 38 Havelock Street 14 Electric Street Amherst NS B4H 3Z5 Amherst NS B4H 3Z5 By the Court: Introduction: [1] This is an application for judicial review filed by the Applicant, Mr. Wells, seeking to quash demolition orders issued by the Municipality of the Town of Amherst respecting his properties at 12 and 14 Charles Street in the Town of Amherst. By consent, an interim stay order was granted on July 10, 2014. The demolition of the subject premises was stayed pending final disposition of this application. [2] The main argument advanced by Mr. Wells centres on the interpretation of Section 345 and 346 of the Municipal Government Act, which I will refer to as the MGA. If Mr. Wells’ interpretation of these provisions prevails, he asserts it leads to the conclusion the Town did not have jurisdiction to make the subject demolition orders. Background: [3] By way of background, the record filed by the respondent Town sets out the background of the Town’s determination of the premises as being dangerous and unsightly. The record was supplemented by two additional documents; draft minutes of the June 9, 2014 appeal hearing, and Town policy number appearing to be 66150-01, pertaining to dangerous or unsightly premises and delegation of powers to the planning and advisory committee, which I will refer to as PAC. [4] The record, which is not page numbered, establishes the following, which is a brief summary of what I feel are the most salient parts of the record: a. The Town’s concerns with the condition of Mr. Wells’ property has been longstanding; b. The concerns with the subject properties intensified in October 2013. Unsafe conditions and danger to the public and responders, including police and fire, were of paramount concern to the Town; c. Tab five contains a detailed letter dated October 17th, 2013 from the Town to Mr. Wells. It outlines the concerns, and includes the following paragraphs: Please be advised that with the present state of the dwelling and the lack of progress in the last 4 or more years, it is clear that the building is not fit for human habitation and may be required to be demolished. The interior of the dwelling is falling apart, the ceilings are collapsing, there are signs of decay, mold and structural failures. There is a significant amount of wild animal activity living in the dwelling with feces and signs of nesting. At present it poses a risk for vandalism, fire and transient activity. The work required would clearly be extensive and expensive to bring the dwelling up to “Minimum Standards for Residential Occupancy”. Unless there is a significant amount of progress made towards bringing the dwelling up to “Minimum Standards for Residential Occupancy” before November 18, 2013, then the Town of Amherst will recommend demolition based on the present condition and the lack of progress. An official “Unsightly and Dangerous Premises” Committee meeting will take place in the near future. When a date is set you will be notified and will be required to attend if you oppose the recommendation of the Town of Amherst. d. Tab five also contains a follow up letter to Mr. Wells of November 1, 2013. Mr. Wells did not appear to address any of the Town’s concerns, and under letter of November 1, he was advised of the committee meeting for November 8, 2013, at which time the committee would deal with a recommendation to demolish. Mr. Wells was given the required notice under the MGA, and an opportunity to be heard; e. Mr. Wells was represented by counsel at the November 28 meeting. The Town was persuaded to give Mr. Wells a 30 day reprieve to create and implement a concrete plan to address the dangerous and unsightly condition of the premises. Details of the reprieve and expected actions of Mr. Wells are set out in the letter from the Town dated November 29, 2013 also found under tab five of the record. It was made clear to Mr. Wells that unless he undertook to fulfill his commitments to the Town by December 30, 2013, the committee would reconvene a new date to consider the demolition recommendation; f. December 30 came and went. No response from Mr. Wells, despite follow up by the Town. Under letter dated April 16, also found under tab five of the record, Mr. Wells was advised that a meeting of the PAC committee would be held on May 5, 2014 and demolition would be recommended. Again, Mr. Wells was given the required notice under the MGA, and an opportunity to be heard; g. Mr. Wells was represented by counsel at the PAC meeting held on May 5, 2014. The thrust of the submissions was although he had not followed through as previously committed, Mr. Wells was serious about addressing the concerns, and requested the committee adjourn its decision for 30 days, allowing Mr. Wells to make good on his promises to carry out repair work; h. Mr. Wells was advised under letter dated May 6, 2014 that the decision of PAC was to order clean out and demolition of the buildings within 30 days. The formal order was dated May 8, 2014. Both the letter and the order are found under tab four of the record; i. Under the Town’s policy, that is the policy I referred to regarding the dangerous and unsightly premises, it stipulates: APPEALS (OF PLANNING ADVISORY COMMITTEE DECISIONS): 1. Any decision of the Planning Advisory Committee may be appealed to Amherst Town Council within seven days of such decision. Such appeal must be submitted in writing to the Chief Administrative Officer; 2. Appeals may be lodged by the property owner or complainant; 3. Council may make any decision that the Planning Advisory Committee could have made; 4. A decision of Council is not appealable. j. Mr. Wells was advised of his appeal rights under the letter of May 6 and the May 8 order. Mr. Wells filed an appeal, which was heard by council on June 9, 2014. Mr. Wells was represented by counsel at the appeal, and had an opportunity to make submissions. Mr. Wells was not limited in his ability to make representations to council. Mr. O’Neil, who represented Mr. Wells in this application for judicial review, also represented Mr. Wells at his November 28 and May 5 appearance before the PAC, and also at the June 9 appeal before council; k. Council advised Mr. Wells of its decision under letter dated June 12, 2014. The effect of its decision was to confirm the decision of the PAC to order demolition. Council issued a new demolition order on June 12 requiring demolition by July 12, 2014. Particulars of the June 12 letter and order are contained at tab one of the record; and l. Mr. Wells filed his notice of judicial review on June 16 respecting the June order. An amended notice was filed on July 17, and the amended notice brought under review the May order; The “Appeal” Process: [5] I now turn to the appeal process and the relevancy of the appeal process. Both parties clearly treated the June 9, 2014 process as an appeal hearing. Although in its written submissions the respondent Town argued the June 9 process was not an appeal, this position changed during oral submissions to the court. That change was adopted as a result of the policy of the Town filed as exhibit one. The Town does bear responsibility for any confusion the applicant might have had respecting this issue of whether the June 9 was an appeal process or not. In the Town’s written submission it argues: The special meeting of Town Council on June 9th, 2014 to hear the “appeal” of the Applicant was not an “appeal” of the May 8th, 2014 Order specifically required or even contemplated by the MGA. The “appeal” was merely an opportunity for the Applicant to make further submissions prior to the granting of the second demolition order. This special meeting was arranged as a second chance for the applicant and provided a measure of fairness over and above that which is strictly required by the MGA. (See paragraph 4 of the respondent brief.) The labeling of the June 9th hearing as an “appeal” was not a product of the requirements of the MGA but merely a helpful way for the parties to characterize a second hearing before Council dealing with the same issue and subject matter. While this label may have been applied in error, it does not change the fact that the MGA does not specifically require a second hearing. It was held in this case merely to afford the applicant a greater level of procedural fairness than is expressly provided under the MGA. This second hearing was a necessary product of the substantial extension of time granted to the applicant by the respondent. (See paragraph 17 of the respondent brief.) There is also no prohibition of a second hearing, whether a fresh original hearing or an appeal hearing. The applicant is correct in submitting that council lacks the jurisdiction to sit in appeal of its own decision. This submission however further evidences that the June 9th hearing was not an appeal hearing in substance, but in name alone. Council issued a new demolition order, dated June 12th, rather than making a determination regarding the force and effect of the original May 8th order, demonstrating that council was not sitting in appeal of its own decision. (See paragraph 18 of respondent’s brief.) [6] As the record demonstrates, the relevant documentation generated by the respondent Town in this matter characterizes the June 9 process as an appeal. That appears in many places throughout the record. Appeal language is intentionally and expressly used throughout, including the correspondence to the property owner, the order, the notice of meeting and minutes. It was not a one off reference or misunderstanding used in this case. Had counsel for the Town made reference to the policy (exhibit one) from the outset of this judicial application, I doubt the Town would have made the representations it did respecting the June 9 event being incorrectly labeled as an appeal. In fact, the written submissions respecting whether the June 9 process was an appeal, in my view seem inconsistent with the clear and express wording of the actual policy implemented by the Town and reduced to writing. During oral submissions and review of the policy during the course of the judicial review hearing, the Town’s submissions shifted to the June 9 event being an appeal; noting in delegating its powers to the PAC, council retained the right to hear appeals from any PAC decision. [7] What impact does this (the “Appeal”) have on the application for judicial review? I have determined it has no impact. Although the confusion is unfortunate and not of the applicant’s making, I find it has no material impact on the outcome of the judicial review application. [8] The ground being advanced by the applicant pertains to the statutory interpretation of the provisions of section 345(1) and (2) and section 346(2). The arguments advanced by the applicant do not pertain to the substantive merits of the decision; in particular, whether the PAC or council got it wrong when determining the premises were dangerous and unsightly, and whether a demolition order was warranted. The arguments advanced by the applicant pertain to jurisdiction to delegate authority to the PAC and jurisdiction to order demolition prior to ordering any specified repairs. [9] Respecting the right to establish an appeal process, I note the appeal process expressly contemplated by the MGA under Part XV Dangerous or Unsightly Premises section 346(2) provides as follows: An owner may appeal an order made under section 346(1) to the council or to the committee to which the council has delegated its authority. [10] This provision does not seem to contemplate this situation and the appeal process established by policy. Section 346(2) permits an owner to appeal the decision of an administrator to the council or to the committee council has delegated its authority. [11] Section 346(3) provides the safeguard of notice to the owner and the opportunity to be heard before any order to demolish is made. [12] In this case, by its own policy, the Town established a clear appeal process. Arguably a process that the Town did not have to establish, but one that serves the interest of a property owner and one that, from my perspective, is conceivable to establish under the provisions of the MGA. When questioned by the court, Mr. O’Neil was not able to articulate in any substantive manner how the framing of the process as an “appeal” negatively impacted the advancement of his arguments against a demolition order. [13] Turning to the provisions of the MGA which in my view could support the implementation of a policy and the structure of appeal. I refer to section 2 of the MGA. Section 2 sets out the purpose of the MGA. 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; (b) enhance the ability of councils to respond to present and future issues in their municipalities; and (c) recognize that the functions of the municipality are to (i) provide good government; (ii) provide services, facilities and other things that, in the opinion of the council, are necessary or desirable for all or part of the municipality, and (iii) develop and maintain safe and viable communities. [14] Section 3(r) of the MGA sets out the definition of dangerous and unsightly premises, but most importantly, section 48 (3) provides as follows: In addition to matters specified in this Act or another Act of the Legislature, the council may adopt policies on any matter that the council considers conducive to the effective management of the municipality. In my view, addressing any dangerous or unsightly property seems not only conducive to effective management; it supports the safe and viable community objectives of the Act. [15] Section 345(2) permits council to delegate its authority under the dangerous and unsightly provisions of the MGA to a committee. In this case, under its policy, council expressly delegated its authority to the PAC while still providing property owners a right of appeal to council from PAC decisions. On the face of the policy, it appears council has taken a broader view of the appeal provisions contained under section 346(2). That said, under the permissive delegation provisions set out in section 346(2), it is arguably open to council to determine the extent of its delegation of authority to a committee. In other words, delegate all of its authority, or to retain some of that authority. [16] In short, the appeal hearing arguments are more form than substance. Furthermore, as I have indicated, Mr. O’Neil has confirmed that Mr. Wells had the opportunity to make the representations he wanted, and he was not restricted by the appeal process. In fact, going back to the May 5, 2014 minutes, when the PAC issued the first demolition order, the minutes say: The risk to face demolition is understood by Mr. Wells. He said the Town is being incredibly fair, and that Mr. Wells realizes this. These statements were made by Mr. Wells counsel (Mr. O’Neil) during the May 5 hearing. Substance of the Applicants Grounds for Judicial Review: [17] I now turn to the substance of the applicant’s grounds for judicial review, having determined that the appeal process does not impact, from my perspective, the final outcome of this matter. [18] Mr. Wells asserts the Town acted without jurisdiction or lawful authority by ordering the demolition of the property. The foundation of this assertion is grounded in his interpretation of section 346(1) of the Act which provides: Where a property is dangerous or unsightly, the council may order the owner to remedy the condition by removal, demolition or repair, specifying in the order what is required to be done. (Emphasis added) The applicant focuses intensely on the wording “specifying in the order what is required to be done”. [19] Mr. Wells asserts Section 346(1) requires the town to first articulate in any order what repair work is required. In other words, unless a municipality, in this case the Town of Amherst, first gives an opportunity to repair dangerous and unsightly premises and specifies what repairs are to be done, no demolition order can ever be issued. [20] The applicant did not provide any supporting authority for this desired interpretation or application, nor was reference made to any relevant legal principles of statutory interpretation. [21] The applicant Mr. Wells also asserts the Town cannot delegate its power to order demolition to a committee. He asserts that the wording of section 345(1) and (2) prohibit such delegation. In particular, the applicant isolates the words “except the authority to order demolition” under 345(1) and the words “or such of its authority as is not delegated to the administrator” in 345(2) and arrives at the conclusion that somehow with those provisions taken together, you arrive at the conclusion that council cannot delegate to a committee the power to order demolition. Alternatively, Mr. Wells argues that if the Town had the authority to delegate such demolition power, the committee did not first specify repairs, therefore the committee lacked jurisdiction to order demolition. [22] Respecting the interpretation of 345(1) and (2), I also note the applicant did not provide any supporting legal authority for this desired interpretation or application, nor was reference made to any relevant legal principles of statutory interpretation, at least not in any formal way. [23] To briefly summarize the Town’s position; it argues section 345(2) of the MGA expressly provides for the delegation of its authority to a committee for all or part of the municipality. The exclusion of delegating the authority to grant a demolition order to an administrator within section 345(1) does not extend to delegation of authority to a committee. [24] The second point of the respondent Town’s main argument is the order in question here is for demolition only. There is no requirement that any repairs be made, and no standard of repair to be achieved. All that is required of the property owner is to have the property demolished within the allowed time as provided within the MGA. There is no question of the Municipality’s authority to grant this type of order. That is the position of the respondent. Issues: [25] The issues I have to determine on this judicial review application are: (1) Did the respondent Town have the authority to order demolition? (2) I also turned my mind to whether the proper procedural steps were observed and taken in this process which resulted in the granting of demolition orders. Standard of Review: [26] Turning to the standard of review, neither counsel referred to the applicable standard of review in their written submissions, respecting what standard I must apply when reviewing the decisions and resulting order of the PAC and council. When asked by the court, the applicant indicated the standard of review to be applied to the jurisdictional arguments being advanced was one of reasonableness. With respect, I disagreed. On such issues, the higher standard of correctness is the appropriate standard of review. Either the PAC and/or council had the requisite authority to make the decisions under review, or they did not. Accordingly, on the matters pertaining to jurisdiction and the interpretation and application of statutory provisions advanced by the applicant, the higher standard of correctness applies. The respondent concurs with this standard. Specific arguments on jurisdiction and statutory interpretation/ application: [27] As I noted earlier, the applicant has not advanced arguments challenging the substance of the decision on its merits, only jurisdiction. Had I been called upon to review the decision on its merits, that is to have found the premises to be unsightly and dangerous, and whether a demolition order was warranted in the circumstances, I would not have concluded in favour of the applicant. [28] Turning now to my decision on the specific arguments regarding jurisdiction and the interpretation and application of Section 345 and 346. I am mindful of the principles of statutory interpretation and the broad and purposeful approach to the interpretation of statutes empowering municipalities. I specifically refer to the following principles of statutory interpretation: (1) The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (see Cohen v. Nova Scotia (Workers’ Compensation Board) 2007 NSCA 118 at paragraph 18); (2) Every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless, pointless, or redundant (see Mime’j Seafood’s Ltd v Nova Scotia Workers Compensation Appeals Tribunal 2007 NSCA 115 at paragraph 41); (3) In the absence of a reason to reject it, the ordinary meaning prevails. Even if ordinary meaning is clear, I still must consider the purpose and scheme of the legislation. The court may adopt an interpretation which modifies or rejects the ordinary meaning; however, the interpretation must be plausible and one which the words can bear. (See Driedger on the Construction of Statutes, 3rd edition, Toronto and Butterworths, 1994 page 7); (4) Generally speaking respecting ambiguity, if there are two interpretations, the more reasonable one should prevail. If one cannot be said to be more reasonable than the other, the choice should then be resolved in favour of the taxpayer. (See Ontario Cancer Institute v Ontario (Minister of Revenue) 150 D.L.R. (4th) 371 at paragraph 60; and Recycling v. Inverness (County of) 2006 NCSC 93 at paragraph 19. Although the case before me is not a taxing matter, this principle has relevance. The right of demolition is invasive, and any right should be clearly expressed. [29] I also briefly make note of the Nova Scotia Interpretation Act (1989) R.S.N.S. c., 235, which deems all legislation to be remedial and to be interpreted so that its objects are attained. Specifically I make reference to section 9(5): 9(5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters: (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; And that is why I earlier made reference to the objects of the MGA in particular. (e) the former law, including other enactments upon the same or similar subjects; (f) the consequences of a particular interpretation; and (g) the history of legislation on the subject. [30] With the above legal principles in mind, I have determined that the interpretation advanced by the applicant is contrary to the plain and ordinary meaning of the provisions under review. In fact the sections, in my view, do not and cannot support the meaning being advanced by the applicant. I find there is no ambiguity in the express provisions being challenged. If I were to adopt the meaning proposed by the applicant would, in my view, be to ignore the clear and plain meaning of these provisions. [31] Section 345(1) is clear and means exactly what it says. Council may, by policy, delegate some or all of its authority pursuant to this part to the administrator, except the authority to order demolition. So if council delegated the authority to demolish to the administrator, and the administrator made the order to demolish, the appellant would have grounds to challenge on jurisdiction. That is not what happened in this case. [32] Section 345(2) is also clear and means exactly what it says. Council may delegate some or all of its authority pursuant to this part to a committee, unless that authority is delegated to the administrator. We know that under section 345(1) council cannot delegate the power of demolition to the administrator, so council can delegate this power to a committee. There is case law which specifically recognizes this power of delegation. I refer to the decision of Justice Robertson in Ingham v. District of West Hants, 2005 NSSC 115, and in paragraph 15 she recognizes that particular section permits a delegation of power to a committee. [33] Section 346(1) also cannot support the interpretation advanced by the applicant. The desired interpretation of the words “specifying in the order what is required to be done” does not simply apply to repairs. The interpretation advanced is taken out of context and runs against the plain and ordinary meaning of the words contained in the provision. Council may order the owner to remedy by removal, demolition and repair. Whatever method is chosen, it must be specified in the order. So, specifying in the order what is required to be done - does not just pertain to repairs. If it is going to be remedied by demolition, demolition would be specified in the order. If it was going to be remedied by repair, repair would be specified in the order. But the term “specifying in the order what is required to be done” is not solely anchored to the issue of repairs. [34] The Town in this case specified demolition. That was the decision of the PAC. It was also the decision that was confirmed by council in the June appeal hearing, and demolition was clearly specified in the order. [35] I also refer to Sydney Precision Machining Ltd. v. Cape Breton (Regional Municipality), 2003 NSSC 222. It is helpful. In that decision, the concept of distinct orders for repair and demolition under the MGA is confirmed. The latter requires an opportunity to be heard in compliance with section 346(3), which occurred in this case. That is the provision of the landowner, Mr. Wells, to make representations and be present; to have appropriate notice of the hearing before any demolition order was made. The record is clear that occurred in this particular case. [36] In addition, as a result of the specific policy provisions implemented by the respondent Town, owners were afforded the right of appeal respecting all decisions of the PAC. This is an additional avenue of recourse outside that provided by section 346(3) of the MGA. Even if the appeal process was determined to be outside the jurisdiction of the respondent Town (which for the reasons I have already indicated I do not find that to be the case) the PAC had the requisite authority to issue the demolition order of May 8, 2014. Conclusion: [37] In conclusion, the application for judicial review is dismissed and the stay is lifted. In the event the issue of costs cannot be resolved between the parties, I retain jurisdiction to decide costs. Justice E. Van den Eynden