r v. Niagara, 2020 NLCA 1

Debra Bradbury (appellant) v. The Town Council for the Town of Carbonear (respondent) (19/09) Indexed As: Bradbury v. Carbonear (Town) 2020 NLCA 1 5 C.A.N.L.R. 304 Court of Appeal of Newfoundland and Labrador Welsh, O’Brien and Goodridge JJ.A. January 13, 2020

Summary: In 2009, the Town of Carbonear denied Ms. Bradbury a building permit to construct a dwelling on her property. Ms. Bradbury’s appeal of this decision to the Eastern Newfoundland Regional Appeal Board was dismissed. Her further appeal to the Supreme Court of Newfoundland and Labrador, General Division was also dismissed. In 2017, Ms. Bradbury filed a statement of claim against the Town. The Town applied to have Ms. Bradbury’s statement of claim struck on the basis that the issue had already been adjudicated.

The applications judge struck the statement of claim on the basis that it amounted to an abuse of process because, first, the matter had already been adjudicated and was therefore precluded by operation of the doctrine of issue estoppel; and second, the claim amounted to a collateral attack on the prior proceedings. Held: Appeal dismissed. Welsh J.A. (O’Brien and Goodridge JJ.A. concurring): Principles of law regarding the operation of issue estoppel including pre- conditions and the role of discretion are discussed (paragraphs 8-12).

There was no basis on which to conclude that the applications judge erred in determining that the criteria for the operation of issue estoppel had been satisfied. First, the facts underlying Ms. Bradbury’s 2009 application were the same as the facts underlying her statement of claim. The question of whether or not the Board erred in denying the 2009 application had already been decided. Ms. Bradbury’s claim for damages or compensation in the statement of claim did not have the effect of altering the conclusion that the same question had been decided in other proceedings.

Second, it was clear that the decision on which issue estoppel was based was a final decision. Third, the statement of claim involved the same parties as the 2009 application (paragraphs 13-23). There was no basis on which to conclude that the applications judge erred in declining to exercise her discretion not to apply the doctrine of issue estoppel (paragraphs 24-26). Cases cited: Bradbury v. Eastern Regional Appeal Board , 2012 NLTD(G) 31 Penner v. Niagara (Regional Police Services Board) , 2013 SCC 19 , [2013] 2 S.C.R. 125 Danyluk v.

Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 S.C.R. 460 Statutes considered: Urban and Rural Planning Act, 2000 , SNL 2000, c. U-8, sections 40 and 42

Rules considered: Rules of the Supreme Court, 1986, rule 14.24(1) Counsel: Daniel M. Glover, for the appellant; J. William Finn Q.C., for the respondent. The appeal was heard on November 15, 2019 before Welsh, O’Brien and Goodridge JJ.A. The following judgment was filed on January 13, 2020 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] Debra Bradbury issued a statement of claim against the Town of Carbonear based on the Town’s refusal to issue her a buildingpermit to construct a dwelling on her property.

The Town successfully argued that the claim should be struck on the basis that it was anabuse of process because the issue had already been determined in prior proceedings. It is that decision that is the subject of this appeal. BACKGROUND [2] In 2009, the Town of Carbonear denied an application by Debra and Walter Bradbury to construct a single dwelling on theirproperty due to the lack of public road access.

However, the Town advised the Bradburys that their application could be reconsidered ifthey constructed an access road, at an estimated cost of $150,000, and if they obtained the consent of the owners of private lands overwhich the road would pass. The Bradburys’ appeal to the Eastern Newfoundland Regional Appeal Board, pursuant to

section 42 of theUrban and Rural Planning Act, 2000, SNL 2000, c. U-8, was dismissed. [3] The Bradburys appealed the Board’s decision pursuant to

section 46 of the Act. As a result of the appeal, the Board was orderedto “reopen the hearing to provide the Bradburys with the opportunity to introduce fresh evidence” and to “reconsider its decision”(decision of the applications judge, 2019 NLSC 1, at paragraph 6). Following a reconsideration hearing, the Board affirmed its decision. Again, the Bradburys appealed. Fry J. dismissed that appeal ( (NL SC), 2012 NLTD(G)31, 321 Nfld. & P.E.I.R. 21). In assessing the Town’s application to strike Ms.

Bradbury’s statement of claim, the applications judgereferred to the following paragraphs from Fry J.’s decision: [36] The Board correctly determined that the service road or part of it is owned and controlled by the Provincial Government. Documents provided to the Board demonstrated that the Provincial Government will not grant permission to the Bradburys to access theservice road for the purpose of accessing their land. [37] The Town has no authority to grant access off a road reservation of a provincial highway.

The fact that the Town, over manyyears, did some snow clearing, grading and kept the road open as either a shortcut, or a turning point for some town equipment does notestablish the right to grant access off a provincial highway. Only the provincial government could do that and they have not. … [46] As noted previously, no error of law or excess of jurisdiction [has] been identified which would justify this court in overturning theBoard’s decision. In addition, the Board did not find any evidence of misconduct, bad faith or any improper motive or illegality in theactions of the Town Council.

I have reviewed all the material included in the record and there is nothing in the record or transcript of theproceedings that would suggest any such activity. [47] It is my conclusion that the Board correctly decided that the refusal of the Town Council to issue the development permit due tothe lack of road access and services was appropriately within the authority of the Town Council pursuant to its Municipal Plan andDevelopment Regulations. Fry J.’s decision was not appealed. [4] Several years later, on February 9, 2017, Ms. Bradbury filed the statement of claim at issue in this appeal.

The essence of herclaim and her rejection of the Town’s defence that the matter has been previously determined is summarized in the decision of theapplications judge: [12] [Ms. Bradbury] denies that the issues raised in the Statement of Claim have been previously adjudicated. [She] alleges that theTown has continued to maintain its position that the Property may not be developed unless [she] complies with allegedly arbitrary,unreasonable and exorbitant conditions. In the meantime, it has approved development of other properties in the area without the sameconditions as were placed upon [her property].

She says it is those continuing actions that are discriminatory, arbitrary and an abuse of

public authority. Further, the Town’s actions have deliberately and unlawfully interfered with her property rights. She therefore claimsinjunctive relief and damages, including damages for stress, aggravation and psychological harm. [5] The applications judge concluded that Ms. Bradbury’s claim amounted to an abuse of process because, first, the matter hadalready been adjudicated and was precluded by operation of the doctrine of issue estoppel, and second, the claim amounted to a collateralattack on the prior proceedings.

Having struck out the statement of claim, the judge noted: [101] … this does not prevent [Ms. Bradbury] from filing another application to develop the Property, with such application and anyappeals thereof being determined in accordance with the provisions of the Act. ISSUES [6] At issue is whether the applications judge erred by striking Ms. Bradbury’s statement of claim as an abuse of process on thebasis that the matter had been previously adjudicated and decided. ANALYSIS [7] The applications judge had discretion to strike Ms.

Bradbury’s statement of claim pursuant to rule 14.24 (1) of the Rules of theSupreme Court, 1986. That rule provides: The Court may at any stage of a proceeding order any pleading …, or anything therein, to be struck out … on the ground that … (

d) it is otherwise an abuse of the process of the Court, and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. Issue Estoppel – General Principles [8] In applying to strike out Ms. Bradbury’s statement of claim, the Town relied on the doctrine of issue estoppel, which is discussedin Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, in the context of a decision of a disciplinarytribunal and a subsequent civil action.

Cromwell and Karakatsanis JJ., for the majority, explained: [28] Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposesparties to additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in theadministrative law field, may undermine the legislature’s intent in setting up the administrative scheme.

For these reasons, the law hasadopted a number of doctrines to limit relitigation. [29] … [Issue estoppel] balances judicial finality and economy and other considerations of fairness to the parties. It holds that a partymay not relitigate an issue that was finally decided in prior judicial proceedings between the same parties or those who stand in theirplace. However, even if these elements are present, the court retains discretion [not to] apply issue estoppel when its application wouldwork an injustice. [9] In conducting the analysis in Penner, the majority referred to the legal framework set out in Danyluk v.

Ainsworth TechnologiesInc., 2001 SCC 44, [2001] 2 S.C.R. 460, in which Binnie J., for the Court, concluded: [25] The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle [ (SCC), [1975] 2 S.C.R.248], at p. 254: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel israised or their privies. [10] With respect to the role of discretion in determining whether it would be unjust or unfair to apply the doctrine of issue estoppel inparticular circumstances, in Penner, the majority explained: [31] … The discretion requires the courts to take into account the range and diversity of structures, mandates and procedures ofadministrative decision makers; however, the discretion must not be exercised so as to, in effect, sanction collateral attack, or toundermine the integrity of the administrative scheme. … … [39] Broadly speaking, the factors identified in the jurisprudence illustrate that unfairness may arise in two main ways which overlapand are not mutually exclusive.

First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless beunfair to use the results of that process to preclude the subsequent claim. … [41] Many of the factors identified in the jurisprudence, including the procedural safeguards, the availability of an appeal, and theexpertise of the decision maker, speak to the opportunity to participate in and the fairness of the administrative proceeding. These

considerations are important because they address the question of whether there was a fair opportunity for the parties to put forward their position, a fair opportunity to adjudicate the issues in the prior proceedings and a means to have the decision reviewed.

If there was not, it may well be unfair to hold the parties to the results of that adjudication for the purposes of different proceedings. [42] The second way in which the operation of issue estoppel may be unfair is not so much concerned with the fairness of the prior proceedings but with the fairness of using their results to preclude the subsequent proceedings. Fairness, in this second sense, is a much more nuanced enquiry. On the one hand, a party is expected to raise all appropriate issues and is not permitted multiple opportunities to obtain a favourable judicial determination.

Finality is important both to the parties and to the judicial system. However, even if the prior proceeding was conducted fairly and properly having regard to its purpose, injustice may arise from using the results to preclude the subsequent proceedings. This may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings. We recognize that there will always be differences in purpose, process and stakes between administrative and court proceedings.

In order to establish unfairness in the second sense we have described, such differences must be significant and assessed in light of this Court’s recognition that finality is an objective that is also important in the administrative law context. … (Italics in original.) [ 11 ] In Penner , which dealt with the application of issue estoppel in the context of a civil action following a disciplinary proceeding, the majority wrote: [49] In our respectful view, the Court of Appeal failed to focus on fairness in the second sense we have just described.

We do not quarrel with the finding of the Court of Appeal that the disciplinary hearing was itself fair and that Mr. Penner participated in a meaningful way. However, while the court thoroughly assessed the fairness of the disciplinary proceeding itself, it failed to fully analyze the fairness of using the results of that process to preclude the appellant’s civil claims, having regard to the nature and scope of those earlier proceedings and the parties’ reasonable expectations in relation to them. [ 12 ] The majority concluded that to apply issue estoppel to preclude Mr.

Penner’s civil claim for damages was, in the circumstances, fundamentally unfair: [69] Issue estoppel is about balancing judicial economy and finality and other considerations of fairness to the parties. It is a flexible doctrine that permits the court to respond to the equities of a particular case. … [70] Given the legislative scheme and the widely divergent purposes and financial stakes in the two proceedings , the parties could not reasonably have contemplated that the acquittal of the officers at the disciplinary hearing would determine the outcome of Mr.

Penner’s civil action. … (Emphasis added.) Operation of Issue Estoppel in this Appeal The Preconditions to the Operation of Issue Estoppel [ 13 ] In submitting that her action in the statement of claim does not engage the doctrine of issue estoppel, Ms. Bradbury relies primarily on her claim that two other houses have been built in the area. Paragraph 5 of the statement of claim alleges that: Since the refusal of [Ms. Bradbury’s] building application other houses have been constructed in the same area on the same road without the arbitrary, unreasonable and exorbitant pre-conditions being placed on [Ms.

Bradbury] by the Town. The two new homes were built in 2014. [ 14 ] I note here a difficulty arising from a lack of clarity in the facts alleged in the pleadings. There is uncertainty as to the location of the “two new homes” in relation to Ms. Bradbury’s property. In paragraph 3 of the statement of claim, Ms. Bradbury described her property as “a parcel of land situate at 84 Bunker Hill, Carbonear …, located between Bunker Hill and English Hill”. Pursuant to a demand for particulars made by the Town, Ms.

Bradbury states that the houses referred to in paragraph 5 of the statement of claim are at “38 and 40 on English Hill Extension”, which is not, on its face, the same as Bunker Hill or English Hill. [ 15 ] The allegation in paragraph 7 of the statement of claim relies on the earlier adjudication of the Bradburys’ 2009 application for a building permit: The Town continues to refuse to allow [Ms. Bradbury] to build on her Property. [Ms.

Bradbury] states the refusal to permit her to develop her property unless she pays for work that is unnecessary or the responsibility of the [Town] is oppressive, high handed and arbitrary treatment of [Ms. Bradbury] by the [Town] and is an abuse of public authority. The [Town’s] conduct constitutes a deliberate and direct unlawful interference with [Ms. Bradbury’s] right to exclusive possession and quiet enjoyment and use of her property. [ 16 ] A claim for damages as a result of her treatment by the Town is set out in paragraphs 8 and 9 of the statement of claim. Ms.

Bradbury does not plead in the statement of claim that she has made an application for a building permit other than the first application made in 2009. [ 17 ] Turning first to the preconditions for the operation of issue estoppel, the applications judge found that the first element of the test was satisfied, that is, the same question has been decided. In her statement of claim, Ms.

Bradbury relies on the factual circumstances in play in 2009 when the decision was made by the Town to refuse a building permit, a decision that was considered on appeal to the Board and the courts, with the final decision of Fry J. made in March 2012. That decision was not appealed and Ms. Bradbury does not rely on a new application for a permit based on a change in circumstances. [ 18 ] The applications judge reviewed the statement of claim and determined that no facts were pleaded to ground a claim that (1) the

Town’s municipal plan or the development regulations had been changed, (2) ownership of the provincial government’s road reservation had changed,

(3) Ms. Bradbury’s proposed development had changed and now conforms to the municipal plan and regulations, or (4) the Town is seeking to acquire Ms. Bradbury’s property by means of an expropriation. The only new fact asserted in the statement of claim is that two other houses have been built. However, the pleadings do not clearly set out as a fact that they are on the same road with the same lack of public access by road. [ 19 ] In any event, the Town’s denial of the 2009 application for a permit was considered by the Board and the court in accordance with the legislation and relevant regulations.

It is the facts underlying that same application on which Ms. Bradbury relies in her statement of claim. Exactly the same question as was earlier adjudicated was before the applications judge who reviewed the statement of claim; that is, based on the municipal plan and regulations, did the Town err in denying Ms. Bradbury’s 2009 application for a permit?

As discussed by the applications judge, as referenced above, that question has been decided. [ 20 ] Further, if the additional information about the construction of two houses in the area several years after the Town’s denial of the Bradburys’ 2009 application is relevant, with the result that Ms. Bradbury is raising a new question, then the legislation requires her to proceed with a new application to permit the Town to assess the new circumstances.

It is clear from the Urban and Rural Planning Act, 2000 that decisions regarding the approval or denial of a permit to undertake development of a property are within the jurisdiction of the Town where the property is situate, and that an appeal of the Town’s decision is to the appropriate Board, with a further appeal to the courts (sections 40 and 42 of the Act ). [ 21 ] In the result, there is no basis on which to conclude that the applications judge erred in determining that the first precondition for the operation of issue estoppel has been satisfied; that is, that the same question has been decided.

Nonetheless, Ms. Bradbury submits that her claim for damages or compensation, which is pleaded in the statement of claim, was not considered for purposes of the application for a building permit. However, since the Town’s decision in the prior proceedings not to grant the permit was determined by the Board and the court to be within the authority of the Town and in accordance with the municipal plan and relevant regulations, there would be no basis for an award of damages or compensation.

Accordingly, a claim for damages or compensation in the statement of claim does not have the effect of altering the conclusion that the same question has, in fact, been decided in the prior proceedings. [ 22 ] The second precondition is that the decision on which issue estoppel is based is a final decision. There is no doubt that that criterion is satisfied. The Town’s decision was subject to appeal to the appropriate Board, with a final decision on appeal to the court in accordance with the legislation. [ 23 ] Similarly, the third criterion is satisfied, that is, the statement of claim engages Ms.

Bradbury and the Town, the same parties as the 2009 application for a building permit. Discretion in the Operation of Issue Estoppel [ 24 ] As discussed in Penner , under this portion of the analysis, the focus is on whether there was unfairness in the prior proceedings, or, alternatively, whether in any event, having regard to the purposes of the two proceedings, it may be unfair to use the results of the prior proceeding to preclude the subsequent claim. [ 25 ] Regarding the first of these, the applications judge commented that Ms. Bradbury did not contest the fairness of the prior proceedings.

With respect to the purposes of the proceedings, as discussed above, since it has been decided that the Town’s decision in the prior proceedings not to grant the permit was determined before the Board and the court to be within the authority of the Town and in accordance with the municipal plan and relevant regulations, there would be no foundation for an award of damages or compensation. It follows that there is no basis on which to engage the court’s discretion not to apply issue estoppel in these circumstances.

I would reiterate the applications judge’s comment: [75] … Further, even if there was new evidence or a change in facts that would lawfully entitle [Ms. Bradbury] to proceed with development of her Property, the Town states that [Ms. Bradbury] is not without recourse. She can still proceed to make a new development application. If that application is refused, she may file another appeal with the Board. She also has the ability to file a [purchase] notice seeking compensation under

section 96 of the Act . [ 26 ] In the result, there is no basis on which to conclude that the applications judge erred in deciding not to exercise her discretion not to apply the doctrine of issue estoppel on the facts of this case.

SUMMARY AND DISPOSITION [ 27 ] In

summary, the applications judge did not err in concluding that the Town had established the preconditions to the operation of issue estoppel and that this was not an appropriate case in which to exercise her discretion not to apply issue estoppel. In the result, she did not err in striking the statement of claim on the basis that it was an abuse of process because the issue had already been determined in prior proceedings. [ 28 ] Accordingly, I would dismiss the appeal with costs to the Town under column 3 of the scale of costs under the Court of Appeal Rules . Appeal dismissed.