DeMarsh v. PNB Exec. Council, 2008 NBQB 96 (CanLII)

PDF Format
Date:	2008-03-03
Docket:	F-M-61-07
URL:	http://www.canlii.org/en/nb/nbqb/doc/2008/2008nbqb96/2008nbqb96.html

Reflex Record (noteup and cited decisions)

Noteup

[Search for decisions citing this decision]

Legislation cited (available on CanLII)

Expropriation Act, R.S.N.B., 1973, c. E-14

Decisions cited

Thorne's Hardware Ltd. v. The Queen, 1983 CanLII 20 (S.C.C.) — [1983] 1 S.C.R. 106

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

Citation: DeMarsh v. PNB Exec. Council - 2008 NBQB 096 Docket: F-M-61-07

Date: 20080303

B E T W E E N:

PETER GRANT DEMARSH, MURRAY ALDEN MUNN and MURRAY MUNN & SONS LTD.,

Plaintiffs;

- and -

THE PROVINCE OF NEW BRUNSWICK (EXECUTIVE COUNCIL) and THE PROVINCE OF NEW BRUNSWICK (MINISTER OF TRANSPORTATION),

Respondents.

Date of Hearing: February 8, 2008

Date of Decision: March 3, 2008

Before: Madam Justice J. L. Clendening

Appearances:

Christopher R. Lavigne and Hazen F. Calabrese for the Applicants.

William E. Gould for the Respondents.

CLENDENING, J.

[1] The Applicants, Peter Grant DeMarsh, Murray Alden Munn, and Murray Munn & Sons Ltd., have applied to the Court for an order that:

1. Pursuant to Rules 3.02(1) - (2), that the applicants be granted an extension of time to in which to file and serve their Notice of Application with respect to the Notices of Expropriation referred to as Department of Transportation files numbers: 293-15-41, 293-15-42 and 293-15-43 filed with the Office of the Registrar of Deeds and Office of the Registrar of Land Titles in the County of York on the 2^nd, 1^st and 2^nd days of November, 2007 respectively;

2. In the alternative and pursuant to Rules 3.02(1) - (2) and 69.03(a) - (c), that the applicants be granted an extension of time on appropriate terms in which to commence their application to judicially review Orders of the Lieutenant-Governor in Council numbers: 2007-268 issued the 2^nd day of August, 2007; 2007-269 issued the 2^nd day of August, 2007; and 2007-283 issued the 16^th day of August, 2007.

After reviewing the application, I requested that counsel for the Applicants appear on the record to present argument pursuant to Rule 69.04(1)(a) with respect to fixing a date for hearing.

[2] The Applicants provided notice to counsel for the Respondents so that both parties provided argument at the hearing. The only notice of expropriation which fell within the timeframe for filing a Notice of Application under the Expropriation Act, R.S.N.B. 1973, C. E-14, is that of #293-15-40 in respect of Murray Munn & Sons Ltd. That notice is not considered in this decision.

[3] Counsel for the Applicants suggests that Rules 3.02(1) and (2) of the Rules of Court of New Brunswick (Rules) may be available to grant them an extension of time under the Expropriation Act to file and serve a Notice of Application. Under the Act,

section 19(a) sets out that the application shall be filed within 30 days. The question to be answered is how can Rule 3.02 be used to grant leave to issue and have heard an originating process which is statute barred because the time for filing has elapsed? In my view, this rule cannot be used to supersede a substantive statutory provision. This rule allows the Court to correct a procedural error when a party has not complied with some other provision in the Rules of Court of New Brunswick, such as failing to file or serve a document within the time limits set out in the Rules. The Court has no jurisdiction to extend a limitation period (see: McKay v. Russell 2007 CarswellNB 312). It does not apply to extend time for filing when the time is specifically defined in a statute. Consequently, no date will be fixed for a hearing on number one request in paragraph 1 above.

[4] The second argument advanced for an extension of time involves a request for a judicial review.

[5] Under Rules 69.03(a) - (c) and 3.02(1) - (2), an extension of time may be granted by the Court for a judicial review. Dickson J. for the Supreme Court of Canada in Thorne’s Hardware Ltd. v. Canada 1983 CanLII 20 (S.C.C.), [1983] 1 S.C.R. 106 discussed the issue of a judicial review as it pertains to Orders in Council. He suggested that the mere fact that a statutory power vested in the Governor in Council does not mean that it is beyond a judicial review. However, he elaborated on this by saying that matters of public convenience and general policy are final and not reviewable in legal proceedings. He maintained that it remains open and possible to strike down an Order in Council on jurisdictional and other compelling grounds, but that it would take an egregious case to warrant such action. There is a suggestion that a Governor (or Lieutenant-Governor) in Council has no duty to examine or investigate matters for taking certain lands, but that it is possible to present a “bad faith” argument.

[6] In New Brunswick the Lieutenant-Governor may expropriate land under subsection 18(4) of the Act. It is conceded that this is subject to natural justice and it is not beyond review, but it is also true that if done for public convenience and policy reasons, then it is final and not reviewable. Finally, the cases indicate that if the Lieutenant-Governor examined the merits of the action, did not act in bad faith, or did not base its decision on irrelevant and extraneous circumstances, and if done for policy reasons, the decision is final and not reviewable.

[7] In the case at bar, Rule 69.03 provides that an application should be commenced within 3 months from the date of the order, commitment, warrant, decision, award, or refusal to act, but that the Court may extend the time in appropriate terms, if a delay will not cause substantial prejudice to anyone.

[8] In this case the Applicants did not advance any compelling argument or explanation for their delay in making an application for a judicial review. The Orders in Council were in fact dated in early August 2007.

[9] In Tourbière de Lamèque Ltée v. The New Brunswick Executive Council, 96 N.B.R. (2d) 287, Stratton, C.J.N.B. (as he then was) on an ex parte hearing refused to fix a date for the hearing. His decision upheld that of Stevenson, J. (QBNB) (as he then was). In Tourbière the Applicant requested a date be fixed for a judicial review of an expropriation under subsection 18(4) of the Act. Stratton, C.J.N.B., at paras 9 and 10 of the decision, suggests two possible scenarios for reviewing the trial judge’s decision not to give a date for judicial review:

9 The first question to be answered is the proper interpretation to be given to Rule 69.04(2). In my opinion, two interpretations are possible. One is that the drafters of the Rule intended merely to provide for the review of the exercise of a discretion by a judge of the Court of Queen’s Bench who has refused to fix a date for the hearing of an application. If this is the proper interpretation, the governing principle is that the judge’s discretion must have been exercised judicially and that an appellate court is only entitled to interfere where it has been established that the judge of first instance has erred in principle or his decision is otherwise unjust.

10 The other interpretation of the Rule is that the drafters intended to give to the Court of Appeal, or a judge thereof, a discretion to assess the matter anew independent of the decision of the judge of first instance. If the former interpretation is the correct one, I would be obliged to conclude that the applicant has failed to establish that Stevenson, J. either erred in principle or that his decision is otherwise unjust. However, as no specific argument was addressed to me as to the proper interpretation to be given to Rule 69.04(2), I propose to look at the issue afresh.

[10] In para. 18 and 19 he did look at the issue afresh:

18 Turning now to the instant case, Counsel for the applicant contends that the decision to deny his client’s request to expropriate was made in bad faith because the Executive Council did not deal with the merits of the application. He further submits that the decision was based upon considerations irrelevant or extraneous to subsection 18(4) of the Expropriation Act. There is, as noted, a duty on the Lieutenant-Governor in Council to carry out its mandate in accordance with its statutory powers. It must also act fairly: see Inuit Tapirisat case. Applying these principles in the present case it is my opinion there is insufficient evidence before me to establish either that the Lieutenant-Governor in Council did not examine the merits of the applicant’s application or that there was any bad faith or unfairness on its part. Nor, on reflection, do I think it can be said that the Lieutenant-Governor in Council based its negative decision on irrelevant or extraneous circumstances. Rather, as I see it, the Lieutenant-Governor in Council made a general policy decision.

19 To sum up, it is my opinion that sub-section 18(4) of the Expropriation Act vests in the Lieutenant-Governor in Council a statutory but discretionary power to expropriate lands. In the exercise of that discretionary power, the Lieutenant-Governor in Council has declined to approve the present application and has given four reasons why it has not done so. While the applicant questions the validity of the reasons given, I have concluded that the decision to refuse to expropriate the lands in question is a decision made by the Lieutenant-Governor in Council for policy considerations. In my view, such a decision is final and not reviewable in legal proceedings.

[11] There are two other decisions that are also useful to consider in the case before me. The first is Hall and Fineberg v. New Brunswick (Attorney General) and Grand Bay (Village), 72 N.B.R. (2d) 399. This case also dealt with an expropriation and in paragraph 17 Dickson J. (as he then was) made an observation about the issue of public interest. He stated:

17 I am unable to perceive that the plaintiffs could possibly succeed in obtaining the declaration they seek in respect to s. 10(2). What they in effect seek is to have their own opinions as to what may be sufficiently considered in the public interest to warrant dispensing with a public hearing, or alternatively that of the court, substituted for the opinion of the Lieutenant-Governor in Council. But the Act provides for no such thing. The Legislature, while adopting a procedure for expropriation which would normally envisage a public hearing when objections have been filed, has nevertheless explicitly endowed the Lieutenant-Governor in Council, where he considers it in the public interest, with the power and authority to dispense with a hearing and that authority has here been exercised. The Order-in-Council here made expressly indicates that the Lieutenant-Governor in Council was before making the order satisfied that it was in the public interest to do so, and a court has no power, certainly in the absence of any suggestion of fraud or other impropriety, to look behind that determination. The provisions, earlier quoted, of s. 19(10) of the Act certainly reinforce that view. The latter section would in fact appear on its face to undermine the whole basis of the plaintiffs' action against both defendants. While I do not strictly find it necessary to determine such point, it seems entirely likely that dispensation with a public hearing under s. 10 (2) could be considered a "step preliminary to the registration of the notice of expropriation" as referred to in s. 19(10).

[12] The Applicants in this case before me seek to have the Court accept that their opinion as to what is the best route for the highway should be considered as that which is in the public interest, but it is doubtful that their opinion would change the eventual outcome.

[13] In CUPE, Local 1253 v. New Brunswick et al, 2006 CarswellNB 145, Drapeau, C.J.N.B. considered the effect of not giving a date for a review by the Court of Queen’s Bench. However, in paragraph 6 he commented on the correct approach to be used in deciding whether to give a date and it is useful to repeat his view of the correct approach:

6. In my view, the correct approach involves a determination of the following question: does the Notice of Application articulate a legally recognized ground for relief and otherwise comply, to an acceptable degree, with the Rules of Court? A date for hearing should only be refused where it is plain and obvious that the Notice of Application does not feature such a ground for relief, or where it otherwise offends the Rules of Court in a significant way. The first part of the test is akin to the standard applied under Rule 23.01(1)(b), which allows the striking of a pleading that does not disclose a reasonable cause of action or defence.

[14] In the case at bar there is no evidence before me that would persuade me that the Lieutenant-Governor in Council did not act in good faith. There was no suggestion in the affidavits filed that there are any compelling grounds to warrant setting a date for a judicial review. This is a discretionary power given to the Lieutenant-Governor in Council by the Legislature to enable it to expropriate lands for a public purpose. This power is granted to the Lieutenant-Governor in Council in section 4 of the Act. Further, the Notice of Application does not articulate a legally recognized ground for relief that is apt to succeed on a review. The reason for not giving them a date is based not only on the failure to comply with the Rules, but also because the Application does not articulate a legally recognized ground for relief. Because the expropriation is for a public purpose (in this case a highway), in my view such a decision is final and not reviewable in this legal proceeding.

[15] For the reasons stated, I would refuse the Applicants’ request to fix a date for the hearing.

____________________________________

J. L. Clendening, J.C.Q.B.