What the Court Said…

A spectator drew my attention to the published decision in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2019 NSCA 77.

That was the CBRM’s attempt to get the Nova Scotia Court of Appeal to overturn the Nova Scotia Utility and Review Board’s (NSUARB) decision in the case of a proposed Big Pond RV park. (In brief: CBRM council approved the first, 211-site phase of Calgary developer Chris Skidmore’s planned park, a group of Big Bond residents appealed that decision to the UARB and the UARB decided in the residents’ favor.)

As the Spectator has reported, the CBRM’s day in court was actually a matter of about an hour — the three-justice panel (Justices Joel Fichaud, Jamie Saunders and Peter Bryson) dismissed the municipality’s appeal in jig time.

And yesterday, they released their written decision, which I’ve attached below.

I read it with interest, myself, because I had written about the CBRM’s chances of winning this appeal back in February and it turns out that what I learned about things like jurisdiction and the standard of “correctness” versus the standard of “reasonableness” all came into play in the Court’s decision (as written by Justice Fichaud). So if you want a primer on any of this, I suggest you read that February article.

Basically, the CBRM appealed the decision on 11 grounds (later reduced to 10) including, wrote Fichaud:

[W]hat the CBRM terms as legal, jurisdictional and factual errors and violations of principles of procedural fairness.

The “jurisdictional” issues raised by the CBRM included:

…that the Board failed to defer to the Council’s decision, wrongly appraised the Council’s reasons and considered the impact of the rezoning on a property whose owner had submitted a letter of comment to the Council, but did not testify at the Board.

But the court ruled that:

There is no issue of jurisdiction.

The CBRM argued the Board had “offended principles of procedural fairness” by:

 …giving more weight to the evidence of “unqualified” witnesses over the evidence of CBRM’s planner and by misapprehending the evidence.

But the court ruled:

With respect, those are not issues of procedural fairness.

 

Policy 17.e

The CBRM’s appeal, wrote Fichaud, turned on one issue:

Under the standard in Dunsmuir v. New Brunswick…did the Board unreasonably determine that the Council’s rezoning decision “did not reasonably carry out the intent of” Policy 17.e within the meaning of ss.250(1) and 251(2) of the Municipal Government Act?

And what does “reasonableness” mean?

The reviewing court follows the tribunal’s analytical path to assess whether the tribunal’s reasoning is understandable and leads to an outcome that is permitted by the legislation. If the answer is Yes, the court dismisses the application for judicial review without asking whether the court would prefer another outcome. If the answer is No, the court overturns the decision as unreasonable.

Fichaud then returns to the wording of Policy 17.e on which the case hinged:

In my view, the Board’s interpretation of Policy 17.e is reasonable. The Policy says if there is no “reasonable protection…the application shall be denied”. It does not say “can be denied” — signalling a discretion — as [CBRM Planner Karen] Neville’s Report informed the Council. The Policy intends that, if there can be no reasonable protection, the prospect of rezoning shall be eliminated, not just reduced in impact by mitigation. The “mitigate, not eliminate” paradigm misconstrued the intent of the municipal planning strategy.

(If you want more detail on the original UARB decision, I’ve got you covered — I wrote about it when it was released.)

As a result:

The Court of Appeal dismissed the appeal. Policy 17.e of CBRM’s Municipal Planning Strategy governed the issue before the Council. The Board reasonably concluded that the Council had misinterpreted Policy 17.e. and that, according to a proper interpretation of that Policy, the rezoning should be denied. Those conclusions entitled the Board to overturn the Council’s decision under ss. 250(1) and 251(2) of the Act.

For me, there are few questions left unanswered by the Court’s decision — but they are questions it was beyond the Court’s responsibility to answer. Namely, why did our regional solicitor — who, I was told by the CBRM, prepared this case himself — decide to pursue this legal case? And why did the CAO approve it? And how much did it cost the citizens of the CBRM?

 

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