The province unsuccessfully appealed from a decision of the Nova Scotia Utility and Review Board (the “Board”) that a man whose land had been expropriated (“Bishop”) was entitled to an Order directing a Discovery of the province’s expert appraiser

26. December 2006 0

Administrative law – Expropriation – Decisions of administrative tribunals – Utility and Review Board – Practice and procedure – Administrative tribunals – Examination for discovery – Hearings – Appeals – Disclosure – Judicial review – Procedural requirements and fairness – Standard of review – Correctness

Nova Scotia (Attorney General) v. Bishop, [2006] N.S.J. NO. 411, Nova Scotia Court of Appeal, October 20, 2006, E.A. Roscoe, M.J. Hamilton and J.E. Fichaud JJ.A.

The province expropriated Bishop’s land and Bishop claimed compensation under the Expropriation Act R.S.N.S. 1989, c. 156 (the “Act”). Bishop obtained an Order from the Board directing Discovery of the province’s appraiser and the province appealed pursuant to section 30 of the Utility and Review Board Act (the “URB Act”) S.N.S. 1992, c. 11. The issue for the Court was whether the URB Act and the Regulations under the Act authorized the Board to direct the Examination for Discovery.

Although counsel for the Board argued that the appeal of this interlocutory issue was premature, and that the Appeal Court should defer on a discretionary interlocutory ruling to the Administrative Tribunal, the Court held that this question of whether the Board had the statutory authority to direct prehearing Discoveries was an important question of law that had yet to be considered. The Court also noted that the question may not have a meaningful place in the Board’s final award which would likely deal with the compensation issue.

The Court considered the standard of review to be applied to an expropriation decision of the Board and held that because this was a question of law, the standard of review should be correctness.

Section 12 of the URB Act authorized the Board to make rules governing “practice and procedure”. In addition, the Act authorized the making of Regulations “generally for any matter or thing necessary to affect the purposes of this Act”.

With respect to whether the Regulation authorizing the Board to give directions as to “practice and procedure” extended to making an Order in respect of prehearing disclosure such as the Discovery of the province’s appraiser, the Attorney General argued that a Discovery Order was not a practice or procedure issue but a substantive issue. The Court rejected this analysis, pointing out that the issue of substance in an expropriation matter is the expropriation compensation award and its calculation whereas the Discovery Order does not determine any aspect of the compensation award and is a “proceeding or machinery by which the right is enforced” and is one of the things that “stream, control or shape the manner in which existing rights are pursued” which is definitive of a procedural matter according to MacAulay and Sprague Practice and Procedure Before Administrative Tribunals.

The Attorney General also argued that the language in Regulation 26 that the Board may give directions as to the practice and procedure to be followed “in any proceeding” really meant the same thing as “at the Hearing”. Again, the Court rejected this Submission and found that the wording “in any proceeding properly extended to prehearing disclosure and that the Regulation supported the legislative intent to promote an effective hearing process before the Board. The appeal was dismissed with costs to Bishop.

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