Administrative law – Decisions reviewed – Utility and Review Board – Statutory interpretation – Judicial review – Procedural requirements and fairness – Jurisdiction – Appeals – Standard of review – Reasonableness – Government – Municipal boards
Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General),  N.S.J. No. 420, 2019 NSCA 77, Nova Scotia Court of Appeal, October 1, 2019, P. Bryson, J.W.S. Saunders and J.E. Fichaud JJ.A.
This was an appeal by the Municipality following the decision of the Utility and Review Board, which found that the Municipality’s decision to rezone the respondent’s property from Rural to Campground use on the basis that the Council of the Cape Breton Regional Municipality (the “Council”) did not reasonably carry out the intent of the Municipality’s Municipal Planning Strategy. On appeal the issue was whether or not the Board was reasonable in determining that the decision to re-zone by the Council did not reasonably carry out the intent of the Municipality’s planning strategy and policy.
The first thing for the Court of Appeal to determine were what grounds of appeal were permitted by the enabling legislation, the Utility and Review Board Act, SNS 1992, c 11. According to the legislation, the only grounds of appeal were those of jurisdiction or law. It was held that where a finding of fact is made, but there is no evidence to support it, it may be arbitrary and appealable as an issue of law.
Although the Council argued that the Board stepped outside of its jurisdiction, it was held that the issues identified related to the standards and process of the Board’s home or related statutes. Therefore, there was no issue of jurisdiction and the standard of review was reasonableness. The Council also argued that the Board offended principles of procedural fairness by giving more weight to evidence of unqualified witnesses. It was held that these were not issues of procedural fairness and the standard of review analysis, as articulated in Dunsmuir v. New Brunswick,  1 SCR 190 applied.
It was held that reasonableness means that the reviewing court follows the tribunal’s analytical path to assess whether the tribunal’s reasoning is understandable and leads to an outcome permitted by the legislation. This was found to be the case and the appeal was dismissed.
This case was digested by Deanna C. Froese, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Deanna C. Froese at dfroese@harpergrey.
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