Debra Bradbury Plaintiff And: THE Town Council for the Town of Carbonear Defendant, 2019 NLSC 1

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Bradbury v. Carbonear (Town) , 2019 NLSC 1 Date : January 4, 2019 Docket : 201701G1148 Between: Debra Bradbury Plaintiff And: THE Town Council for the Town of Carbonear Defendant Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 16, 2018

Summary: The Court allowed the Defendant’s application to strike the claim as an abuse of process on the basis of the doctrine of issue estoppel and collateral attack. The fundamental question that the Court would have to determine had already been adjudicated in prior proceedings. Appearances:

Daniel M. Glover Appearing on behalf of the Plaintiff J. William Finn, Q.C. Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Bradbury v. Newfoundland & Labrador (Eastern Regional Appeal Board), 2012 NLTD(G) 31; Quinlan v.Newfoundland (Minister of Natural Resources), 2000 NFCA 49; Guardian Insurance Co. of Canada v. Roman Catholic Episcopal Corp.of St. John's, 2013 NLCA 62; Angle v. Minister of National Revenue, (SCC), [1975] 2 S.C.R. 248; Ontario Mission ofthe Deaf v. Barrie (City) (ON SC), 2004, 70 O.R. (3d) 394, 130 A.C.W.S. (3d) 62 (Ont. Sup. Ct.

J.); Grosvenor v.East Luther Grand Valley (Township) 2006, 32 M.P.L.R. (4th) 20, 53 R.P.R. (4th) 176 (Ont. Sup. Ct. J.); St. John’s (City) v. SeanicCanada Inc., 2016 NLCA 42; Lynch v. St. John’s (City), 2016 NLCA 35; Devereaux v. Royal Bank (1996), (NL SC),145 Nfld. & P.E.I.R. 334, 453 A.P.R. 334 (Nfld. S.C. (T.D.)); Rasanen v. Rosemount Instruments Ltd. (1994), (ONCA), 112 D.L.R. (4th) 683, 45 A.C.W.S. (3d) 666 (Ont. C.A.); Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44; Nordica FoodsA/S v. Eimskip, USA Icelandic Steamship Inc., 2013 NLTD(G) 114; Penner v.

Niagara Regional Police Services Board, 2013 SCC 19;Eimskip, USA, Icelandic Steamship Inc. v. Nordica Foods A/S, 2015 NLCA 17; Furlong v. Avalon Bookkeeping Services Ltd., 2003NLSCTD 140; Garland v. Consumers’ Gas Co., 2004 SCC 25; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62; Best(Guardian ad litem of) v. Nunatsiavut Assembly, 2011 NLCA 36; Best v. Nunatsiavut, 2015 NLTD(G) 83; Pucci v. North Vancouver(City), 2010 BCSC 743 STATUTES CONSIDERED: Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8; Expropriation Act, R.S.N.L. 1990 c.

E-19 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The Town Council for the Town of Carbonear (the “Town”) has brought an application under Rule 14.24(1)(

d) of the Rulesof the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D to dismiss the Plaintiff’s claim on the basis that it is an abuse of process. Referring to prior proceedings involving the same parties and the same property that is at issue in the current proceeding, the Town reliesupon both the doctrine of res judicata and the rule against collateral attack for its position that the Statement of Claim should bedismissed. [2] For her part, the Plaintiff submits that new issues have been raised in the Statement of Claim that have not been previouslyadjudicated.

She says the within action therefore does not violate either the doctrine of res judicata or the rule against collateral attack. [3] As a determination of the issues raised in this Interlocutory Application requires me to examine the nature of both the currentand prior proceedings involving these parties, I will provide a brief

summary of the history of the proceedings. background [4] The Plaintiff’s claim stems from the Town’s refusal to allow her to construct a single residential dwelling on property at ornear Bunker Hill, in the Town of Carbonear, in the Province of Newfoundland and Labrador (the “Property”). Ms. Bradbury and WalterBradbury initially submitted an application to construct a single dwelling on the Property in 2009. That application was denied by theTown due to a lack of public road access.

At that time, the Town wrote to the Bradburys stating that an estimate of the cost to constructan access road had been obtained, indicating an approximate cost of $150,000. Further, a roadway would need to cross over private landsof other individuals. The Town advised that obtaining such access would be at the Bradburys’ expense and effort. [5] The Bradburys submitted an appeal of that decision to the Eastern Regional Appeal Board (the “Board”) pursuant to section42 of the Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8 (the “Act”). They took the position that a nearby road could provide

access to the Property. However, the Board agreed with the Town’s position that the road in question was a service road owned by the Provincial government and that the Province would not grant permission to use its service road to access the Property. By order dated October 8, 2009, the Board upheld the decision of the Town to refuse to issue a development permit to the Bradburys (the “2009 Board Decision”). [ 6 ] The Bradburys then appealed the 2009 Board Decision to this Court pursuant to

section 46 of the Act . By order of Chief Justice Orsborn (as he then was), it was ordered that the Board reopen the hearing to provide the Bradburys with the opportunity to introduce fresh evidence. The Board was then to reconsider its decision (the “Orsborn Decision”). [ 7 ] The Board subsequently reconvened a hearing and rendered a written decision in which it reaffirmed its prior decision (the “2011 Board Decision”). [ 8 ] The Bradburys again appealed the 2011 Board Decision to this Court. Justice Fry (as she then was, now Chief Justice of Newfoundland and Labrador) delivered a written decision ( Bradbury v.

Newfoundland & Labrador (Eastern Regional Appeal Board) , 2012 NLTD(G) 31), upholding the 2011 Board Decision (the “Fry Decision”). The Bradburys did not appeal the Fry Decision. [ 9 ] The following findings and conclusion from paragraphs 36, 37, 46 and 47 of the Fry Decision are particularly relevant to this application: 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 Bradbury's to access the service 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 many years, did some snow clearing, grading and kept the road open as either a shortcut, or a turning point for some town equipment does not establish 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 have been identified which would justify this court in overturning the Board’s decision. In addition, the Board did not find any evidence of misconduct, bad faith or any improper motive or illegality in the actions of the Town Council.

I have reviewed all the material, included in the record and there is nothing in the record or transcript of the proceedings 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 to the lack of road access and services was appropriately within the authority of the Town Council pursuant to its Municipal Plan and Development Regulations. [ 10 ] On February 9, 2017, Debra Bradbury filed a Statement of Claim in this proceeding.

In her Statement of Claim and Reply to Demand for Particulars, she pleads the following material facts: 1. On April 23, 2009 the Plaintiff submitted an application to the Town to construct a single dwelling on the Property. The Town refused the application. The stated reason for the refusal was that the Property lacked adequate road access and services. The Town imposed a condition on the Plaintiff that she had to build a 15-metre road at a cost of $150,000 prior to further consideration of any building approval. 2.

Since the refusal of the Plaintiff’s building application, other houses have been constructed in the same area on the same road without the allegedly arbitrary, unreasonable and exorbitant pre-conditions being placed on the Plaintiff by the Town. The Reply to Demand for Particulars states that two new homes are located on English Hill Extension and were built in 2014. 3. The road adjacent to the Property is regularly maintained by the Town, contrary to the Town’s assertions. It has been graded by the Town. It is plowed in the winter by the Town after any significant snowfall. 4.

The Town continues to refuse to allow the Plaintiff to build on her Property. The Plaintiff pleads that the refusal to permit her to develop her Property unless she pays for work that is unnecessary or is the responsibility of the Defendant is oppressive, high-handed and arbitrary treatment constituting an abuse of public authority. The Plaintiff further alleges that the Defendant’s conduct constitutes a deliberate and direct unlawful interference with her right to exclusive possession and quiet enjoyment and use of her Property. 5.

The Plaintiff further alleges that the Defendant has demonstrated a flagrant disregard and careless indifference to her rights. The Plaintiff pleads that, as a result of the Defendant’s unlawful actions, the Plaintiff has suffered damages and much unnecessary agitation, frustration and inconvenience.

The Plaintiff further alleges that she has suffered unnecessary stress, aggravation and psychological harm as a result of the Defendant’s actions. [ 11 ] The Town filed its defence maintaining that the action constitutes an abuse of process as the Act provides a process for a person aggrieved by the Town’s decision on an application for development. The Plaintiff previously went through that process with the

matters set forth in the Statement of Claim having been previously determined and adjudicated by that prescribed process and by thisCourt. [12] The Plaintiff denies that the issues raised in the Statement of Claim have been previously adjudicated. The Plaintiff alleges thatthe Town has continued to maintain its position that the Property may not be developed unless the Plaintiff complies with allegedlyarbitrary, unreasonable and exorbitant conditions. In the meantime, it has approved development of other properties in the area withoutthe same conditions as were placed upon the Property.

She says it is those continuing actions that are discriminatory, arbitrary and anabuse of public authority. Further, the Town’s actions have deliberately and unlawfully interfered with her property rights. She thereforeclaims injunctive relief and damages, including damages for stress, aggravation and psychological harm. issue [13] Should the Plaintiff’s Statement of Claim, or part thereof, be struck out pursuant to Rule 14.24 as an abuse of process on thebasis of the doctrine of res judicata or as an impermissible collateral attack? law and analysis A.

The Doctrine of Res Judicata [14] The leading decision from this Province dealing with the doctrine of res judicata is Quinlan v. Newfoundland (Minister ofNatural Resources), 2000 NFCA 49. At paragraphs 6 and 7 of that decision, Green, J.A. noted that, subject to certain restrictive rules, alitigant ought not to be able to retry a cause of action, or to claim any relief flowing from that cause of action, that has already beenlitigated between the same parties or those with whom they have privity.

The principles underlying this doctrine are the promotion offinality of litigation and the prevention of a multiplicity or fragmentation of proceedings. [15] In a later decision from the Court of Appeal, Green, C.J., as he then was, identified two different types of res judicata: (1)cause of action estoppel; and (2) issue estoppel. At paragraphs 42 to 44 of Guardian Insurance Co. of Canada v. Roman CatholicEpiscopal Corp. of St.

John's, 2013 NLCA 62, Green, C.J., summarized these two species of res judicata as follows: 42 It is generally recognized that there are two species of res judicata, or estoppel by record: cause of action estoppel and issueestoppel: Angle v. Minister of National Revenue (1974), (SCC), [1975] 2 S.C.R. 248 (S.C.C.), per Dickson J. at p. 254.For the former category, the cause of action in the prior proceeding must be the same (i.e. not "separate and distinct") from the cause ofaction in the current proceeding: Doering v. Grandview (Town) (1975), (SCC), [1976] 2 S.C.R. 621 (S.C.C.) per RitchieJ. at p. 65; Furlong v.

Avalon Bookkeeping Services Ltd., 2004 NLCA 46, 239 Nfld. & P.E.I.R. 197 (N.L. C.A.) per Roberts J.A. at para.17. If the facts relied on to support the cause of action in the prior proceeding constitute substantially the same facts supporting the causeof action in the current proceeding, the causes of action will be regarded as the same (i.e. not separate and distinct) for the purposes ofcause of action estoppel, even though the actual relief sought in the two proceedings is not the same. See Donald J.

Lange, The Doctrineof Res Judicata in Canada, 3d ed. (Markham, ON: Lexis Nexis, 2010), pp. 147-151 and cases there cited. 43 For issue estoppel, on the other hand, the causes of action need not be the same but an issue or question fundamental to thedisposition of the previous litigation must be at issue again in the current litigation: Angle, per Dickson J. at p. 255; Quinlan at paragraph7; Furlong at paragraph 16. 44 Where cause of action estoppel is established, the party seeking to relitigate will, subject to limited exceptions, be barred fromretrying the cause of action or any claim or argument which could have been made in the prior action had the party exercised reasonablediligence.

Where issue estoppel is established, the party seeking to relitigate will, subject to limited exceptions, be barred fromchallenging the "material facts and the conclusions of law or of mixed fact and law ... that were necessarily (even if not explicitly)determined in the earlier proceedings": see Danyluk, per Binnie J. at paragraph 24. [16] In this case, the Town alleges that the Plaintiff’s actions should be dismissed on the issue estoppel branch of the doctrine of resjudicata.

The test for issue estoppel was succinctly summarized as a three-part test, at paragraph 15 of Quinlan, quoting from theSupreme Court of Canada in Angle v. Minister of National Revenue, (SCC), [1975] 2 S.C.R. 248: (

i) the same question must have been contested and decided in the earlier proceeding; and that question must have been "fundamental" tothe decision arrived at, in the sense that it must have arisen more than "collaterally or incidentally" and is not simply to be inferred byargument from the judgment; (ii) the decision in the earlier proceeding was final; (iii) the parties to the earlier decision or their privies were the same persons as the parties to the proceeding in which the estoppel israised, or their privies. [17] The Plaintiff does not disagree that the foregoing represents the test to be applied in determining whether a proceeding shouldbe struck on the basis of the issue estoppel branch of the doctrine of res judicata.

However, the Plaintiff asserts that not all aspects ofthat three-part test have been made out by the Defendant. I will therefore now examine each part of the test.

i. three part TEST for issue estoppel 1. Has the same question already been decided? [18] The Town takes the position that the prior proceedings all dealt with the same fundamental issue that is now fundamental to thedisposition of this proceeding: that is, the appropriateness of the Town’s refusal to issue a development permit to the Bradburys due to alack of road access.

The Town says that issue was previously decided in the Town’s favour. [19] The Town refers to the Plaintiff’s assertions in the current Statement of Claim that the Town continues to refuse to allow thePlaintiff to build on the Property unless she pays for work that is unnecessary or the responsibility of the Defendant. She asserts thiscontinued refusal is oppressive, high-handed and arbitrary treatment of the Plaintiff by the Defendant and is an abuse of public authority.

The Town says that the appropriateness of the Town’s reasons for refusing to allow the Plaintiff to build on her Property, i.e. the need forher to install and pay for road access and services, were at the heart of the prior appeals of the Town’s refusal to allow development. They are again at the heart of the issues raised in this Statement of Claim. These fundamental issues were already decided in favour ofthe Town. [20] As a result, the Town says that the Plaintiff’s Statement of Claim is merely an attempt to have the matter re-litigated basedupon an unsuccessful outcome.

The only difference here is the nature of the relief sought, i.e. a claim for special damages, generaldamages and injunctive relief. [21] For her part, the Plaintiff states that the Town has now allowed development of nearby properties but not her own, indicating ithas singled out the Plaintiff’s Property for different treatment. This was not in issue in the prior proceeding.

Further, the Plaintiff allegesthat the Town’s actions indicate it will never allow her Property to be developed, resulting in an effective confiscation or constructiveexpropriation of the Property. [22] The Plaintiff says that the Fry Decision did not forever exclude any judicial review of the Town’s subsequent actions. Fry, J.did not and could not have considered issues arising from the Town’s actions after her decision was released.

These actions indicate arefusal by the Town to allow development of the Property in the future while allowing the Plaintiff’s neighbours to develop. [23] Further, the prior limited scope statutory appeal did not address the issue of compensation triggered by the Town’s effectiveconfiscation or constructive expropriation of the Plaintiff’s Property, even assuming that the Town’s actions were deemed appropriate.

The Plaintiff characterizes what was at issue in those prior proceedings as a limited statutory appeal to decide whether or not the refusalof the 2009 application for development approval was intra vires the Town. [24] As a result, the Plaintiff submits that the following issues were not considered in the Fry Decision: (

i) abuse of publicauthority; and (ii) constructive expropriation. I will consider each of these issues in light of the pleadings to determine whether thedoctrine of issue estoppel applies. [25] With respect to the alleged abuse of public authority, the Plaintiff submits that discretionary decisions must not be arbitraryand must be made in good faith.

In respect of her right to a building permit, she says the Town is not entitled to refuse developmentalapproval for an arbitrary or unlawful reason and thereby effectively frustrate a landowner's prima facie basic right to a building permit. (Ref: Ontario Mission of the Deaf v. Barrie (City) (ON SC), 2004, 70 O.R. (3d) 394, 130 A.C.W.S. (3d) 62).

Atparagraph 20 of that decision, the court noted that the exercise of discretion must be based on proper principles and not influenced byextraneous, irrelevant or collateral considerations. [26] The Plaintiff also submits that the Town cannot exercise its powers in bad faith, to avoid a responsibility the municipalityknows it has under legislation. (Ref: Grosvenor v. East Luther Grand Valley (Township) 2006, 32 M.P.L.R. (4th) 20, 53 R.P.R. (4th)176 (Ont. Sup. Ct.

J.). [27] The Plaintiff also states that, if a project proponent applies to develop a property and the proposal is purportedly in conformitywith zoning and other regulatory requirements, then the proponent is entitled to receive approval to proceed with the project or, if suchapproval is denied, to be informed of the reasons why approval was denied. If the reasons disclose no valid basis for denying theapproval, then the proponent has a right to seek judicial review, with a view to compelling the municipality to grant approval. (Ref: St.John’s (City) v.

Seanic Canada Inc., 2016 NLCA 42, at paragraph 36). [28] While I do not disagree with the principles contained in the above decisions, the facts in those cases are markedly differentfrom the matter before me in which the Town’s reason for continuing to refuse development is cited as lack of adequate road access andservices. The legitimacy of that same reason for denying development approval was at the heart of the prior proceedings.

It is thereforerelevant to consider the specific findings of the Board and this Court in respect of the prior refusal to allow development. [29] In the 2009 Board Decision, the Board noted that it was binding upon the Town to permit development only in accordance withits Municipal Plan and Development Regulations.

The Board referred to both the Municipal Plan and the Development Regulationswhich state that, where Council determines that a development proposal is premature due to the lack of services (e.g. roads) or where thesite lacks adequate road access, neither a permit nor approval in principle shall be issued for development unless the applicant contractsto pay the full costs of construction of the services deemed necessary by the authority, including road access.

The Municipal Planspecifically states that development may only be permitted on sites which are directly accessible to a public street. [30] The Board clearly found that the road access proposed by the Bradburys was from a road reservation owned by the ProvincialGovernment and that the Provincial Government would not allow this road reservation to be used for access. Further, the Board foundthat the Town had no authority to grant access off a road reservation of a provincial highway. At paragraph 37 of the Fry Decision, Fry,J. (as she then was) upheld this finding.

Further, at paragraph 38, she noted that the Town had no authority to expropriate the land.

[ 31 ] In the 2011 Board Decision, which was upheld in the Fry Decision, the Board concluded by accepting the assertion of the Town that it cannot approve development that is in contravention of its Municipal Plan and Development Regulations. [ 32 ] This was not a situation where the Town was in a position to make a discretionary decision or where its decision was made for no valid planning or policy purpose, as was the case in Ontario Mission of the Deaf .

In that case, the Court found that the City was ignoring and seeking to circumvent a decision of the Ontario Municipal Board by arbitrarily exercising its discretion not to lift a 0.3 m reserve. It was notable that the City was unable to formulate any legitimate planning purpose for its discretionary refusal. [ 33 ] On the issue of discrimination, the 2009 Board Decision further specifically states that the Board found no evidence that Mr. and Mrs. Bradbury were dealt with in a discriminatory manner by the Town.

Fry, J., as she then was, also dealt with the allegation that the Town had engaged in misconduct, bad faith or acted with any improper motive or illegality. At paragraph 46 she stated: …In addition, the Board did not find any evidence of misconduct, bad faith or any improper motive or illegality in the actions of the Town Council. I have reviewed all the material, included in the record and there is nothing in the record or transcript of the proceedings that would suggest any such activity. [ 34 ] As such, there were clear judicial findings that the Town acted legally and without improper motive or bad faith.

There was also no evidence of misconduct. [ 35 ] While I recognize these findings were made in respect of the 2009 application for development, the question remains whether these findings dispose of an issue or question that is fundamental to this current litigation which is stated to be focused on the Town’s continued refusal.

It is therefore necessary to look to the specific factual allegations in the Statement of Claim which, for the purposes of this Rule 14.24 application to strike, must be presumed as true. [ 36 ] The Statement of Claim alleges that the Town continues to maintain the Property cannot be developed because of lack of adequate road access and services.

The pleadings allege no facts indicating there has been a change in the Town’s Municipal Plan or Development Regulations that would have allowed the Town to approve the proposed development at any time after the Fry Decision. [ 37 ] Further, there is no suggestion that ownership of the former Provincial Government road reservation, or control over access to it, has changed.

The pleadings take issue with the Town’s continuing assertion that the roadway near her property, described as a provincial highway, cannot be considered an access road despite the fact that the Town has used this provincial highway for its own equipment and that the Town maintains and clears this highway. However, the impact of the Town’s use of the roadway over the years has already been dealt with in the prior proceedings.

It was held that the Town’s use and maintenance of the road reservation was irrelevant as it did not change the ownership or control over the road reservation. [ 38 ] Further, no facts are pleaded which would indicate that the Plaintiff’s proposal to develop has changed and is now in conformity to the Town’s Municipal Plan and Development Regulations.

The statement from Seanic Canada Inc. to the effect that a proposal to develop that is purportedly in compliance with existing statutory requirements is entitled to receive approval therefore has no application to these facts. [ 39 ] The Plaintiff has also failed to plead a fact that could give rise to a finding that the Town is seeking to avoid a responsibility it has under legislation.

There is no pleading that there has been any change in legislation such that the Town now has a positive obligation to provide and pay for road access, with that issue having been decided in favour of the Town in the prior proceedings.

This is dissimilar to Grosvenor where a town council was found to have engaged in bad faith conduct by passing a by-law with the motive of displacing responsibility for fencing from the Town to a property owner. [ 40 ] Finally, there are no new facts pleaded to support an assertion that the Town is seeking to acquire the Plaintiff’s Property. [ 41 ] As such, there are no factual allegations that were not previously adjudicated to support a claim that the Town’s continued refusal is for an unlawful reason. [ 42 ] Further, in respect of the Town’s 2009 decision, the Board did not find any evidence of misconduct, bad faith or improper motive in the actions of the Town, nor was there any evidence of that in the prior record (paragraph 46 of the Fry Decision).

The Statement of Claim also does not put forward any new facts which, if assumed to be true, could give rise to this Court making such a finding.

The only new factual assertion is that approval was given by the Town to the development of neighbouring properties in 2014 without the same conditions as were imposed on the Plaintiff. [ 43 ] However, there is no factual assertion in the pleadings that the Plaintiff actually filed a development application seeking approval from the Town to develop her Property after the prior proceedings were determined or that she sought approval on the same or substantially the same conditions as were imposed on the neighbouring property owners.

There is also no pleading or assertion that the Plaintiff put forward a new proposal containing conditions that could lawfully be imposed in respect of the Property. Unless approval was sought by the Plaintiff to develop her property on the same or substantially the same proposed conditions as her neighbours, and her proposal was in accordance with the Town’s Municipal Plan and Development Regulations, how can it be said that there was any arbitrariness or discrimination in any decision made by the Town?

Also, even if the Town had unlawfully disregarded its own Municipal Plan and Development Regulations in respect of the development of other properties, this does not give the Plaintiff the right to claim damages against the Town for refusing to allow her to unlawfully develop the Property. [ 44 ] The second issue raised by the Plaintiff is that of confiscation or constructive expropriation of the Property by the Town. The Plaintiff cites Lynch v. St.

John’s (City) , 2016 NLCA 35 and submits that it is unfair to expect individual claimants to bear, without compensation, the disproportionate burden of damage which flows from interference with the use and enjoyment of land caused by municipal land management decisions.

[45] It cannot be contested that a discretionary refusal to approve a development may cause injury. However, Lynch involved aclaim that the City of St. John’s had constructively expropriated land through legislative amendments that had the effect of appropriatingthe landowner’s groundwater. This, in turn, restricted the landowners in developing their land.

There was no claim that the City hadeffectively expropriated land through a discretionary decision to refuse development. [46] The Court of Appeal found that it was the change in legislation that effectively took away the landowners’ right to a continuousflow of uncontaminated groundwater downstream to the City’s water facility. The right to access groundwater associated with the landwas a property interest, ie., an appurtenance associated with the land, that had been effectively taken away by the legislative change. This constituted a de facto compulsory taking.

The Court then considered the second requirement of the test for de facto or constructiveappropriation, namely, whether all reasonable uses of the property had been removed. [47] At paragraph 65, Barry, J.A., stated that if the court finds there has been an acquisition of a property interest by the authorityand removal of all reasonable uses of the property, the question then becomes whether there is a statutory provision which, whenreasonably interpreted, expressly authorizes the taking without compensation.

If no such legislative provision allowing the taking of aninterest is put forth, the Court must order that compensation be paid by the adoption of an expropriation procedure. [48] In this case, I am unable to glean from the Statement of Claim any alleged unlawful taking by the municipality of a pre-existinginterest or right associated with the Property. It is not pleaded that there had been a previous right to develop the Property with the roadaccess proposed. Nor is it pleaded that any such right was subsequently taken away by the Town, through legislation or otherwise.

Infact, prior proceedings indicate that the proposed road was owned by the Province when the Bradburys acquired the Property in 2006. [49] It is also nowhere alleged in the Statement of Claim that the Plaintiff has been deprived of any reasonable use to which theProperty may be put. All that is alleged is that significant costs will need to be incurred to develop the Property. [50] A review of the Statement of Claim reveals that, not only are facts supporting the requisite elements of constructiveexpropriation not pleaded, the claim of constructive expropriation is not itself referenced in the pleadings.

All that is alleged is that theTown’s conduct constitutes a deliberate and direct unlawful interference with the Plaintiff’s right to exclusive possession and quietenjoyment and use of her property. Again, there has been a previous finding that the Town did not act unlawfully in denying approval. There are no new facts asserted with respect to any subsequent allegedly unlawful conduct. [51] Further, even if constructive expropriation or facts in support of that claim had been pleaded, I must consider

section 96 of theAct. That

section allows a landowner who has been refused development, rendering their land incapable of reasonably beneficial use, toserve a purchase notice requiring the purchase of the land by the Town. [52] No facts are alleged to indicate that the Plaintiff has complied with the requirements of this

section by making a developmentapplication that was refused and then serving a purchase notice on the Town. That is the process the legislature has provided if anaggrieved person is seeking compensation for constructive expropriation of land arising from the refusal of a development application. [53] It is also notable that, in Lynch, the landowner did not seek, and the Court of Appeal did not order, that damages be paid to thelandowner. The relief granted by the Court was a declaration that the City had constructively expropriated the Plaintiff’s land.

Therewas no procedure set out in statute to make such a determination by any other process. [54] The Court of Appeal further declared that the landowners had a right to proceed to a determination of their compensation claimby the Board of Commissioners of Public Utilities in accordance with the Expropriation Act, R.S.N.L. 1990 c. E-19, as though a notice ofexpropriation had been served under and in conformity with the Act. That is not what is sought in this proceeding.

However, the counselfor the Town notes there is no reason the Plaintiff could not file another development application and proceed with this process if theapplication is refused. [55] In

summary, based on the above analysis, I find that the alleged causes of action, as pleaded, all require the court to answer thesame fundamental questions that were contested and decided in the earlier proceedings; ie., whether the Town’s decision with respect todevelopment of the Property was lawful, did not involve misconduct and was not made for any improper motive or in bad faith. The firstbranch of the three part test for issue estoppel has therefore been met. [56] The second two branches of the test are also met, as indicated in the following reasons. 2.

Was the decision in the earlier proceeding final? [57] While the rules surrounding cause of action estoppel and issue estoppel were initially developed in the context of prior courtproceedings, the Town submits that those principles have now been extended, with necessary modifications, to administrative decisionsclassified as being of a judicial or quasi-judicial nature. [58] The Town refers to paragraph 20 of Devereaux v. Royal Bank (1996), (NL SC), 145 Nfld. & P.E.I.R. 334,453 A.P.R. 334 (Nfld.

S.C. (T.D.)), in which Russell, J. referred to the reasons of Abella, J.A. (then sitting as a judge of the OntarioCourt of Appeal) in Rasanen v. Rosemount Instruments Ltd. (1994), (ON CA), 112 D.L.R. (4th) 683, 45 A.C.W.S. (3d)666 (Ont. C.A.) (leave to appeal to the Supreme Court of Canada denied).

At page 704 of that decision, Abella, J.A. noted that: … the policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs andinconclusive proceedings are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions. [59] In determining whether appropriate circumstances exist in which to acknowledge the binding nature of prior decisions, atparagraph 35 of Danyluk v.

Ainsworth Technologies Inc., 2001 SCC 44, Binnie, J., identified three elements that may be taken intoaccount: 1) Is the administrative authority issuing the decision an institution that is capable of receiving and exercising adjudicative authority?;

2) As a matter of law, is the particular decision one that was required to be made in a judicial manner?; and 3) As a mixed question of law and fact, was the decision made in a judicial manner? [ 60 ] A review of the provisions of the Act indicates that the Board has been established to receive and exercise adjudicative authority in hearing appeals from municipalities.

Persons aggrieved from a municipal decision may appear before the Board and make representations, as the Bradburys did in this case. [ 61 ] In making these decisions, the Board is required to determine appeals in accordance with the Act and the applicable plan, scheme and regulations, having regard to the circumstances and merits of the case. Like a court, the Board has the authority to confirm, reverse or vary a decision appealed from. The Board can further impose conditions that it considers appropriate in the circumstances, including an order that the municipality carry out its decision.

The Board’s decisions must be based on findings of fact and the application of objective legal standards to those facts. This indicates that the Board’s adjudication is of a judicial nature. [ 62 ] In looking at the particular circumstances of this case, a review of the Board’s two decisions indicates that it reviewed and considered the submissions of the parties and the evidence presented, including the relevant technical information and planning advice. It also ensured its decision was in accordance with the Town’s Municipal Plan and Development Regulations.

In this instance, the Plaintiff had a second opportunity to appear before the Board and present new evidence when Orsborn, J. sent the matter back for reconsideration. [ 63 ] As a result, I find that the Board, acting as an adjudicative body, made judicial decisions and acted in a judicial manner. The decisions of this Court also do not reveal any reason why I should not view the prior Board decisions as binding. There is therefore no principled basis for exempting the issues decided by the Board from the operation of issue estoppel.

Further, not only are the prior decisions of the Board binding, the Bradburys availed of the opportunity to appeal the Board’s decision to this Court on two separate occasions. Certainly, the judicial review of the Board’s 2011 decision must be considered a final and binding decision. 3. Are the parties to the earlier decision the same persons? [ 64 ] Ms. Bradbury is the same party who made application to develop the Property and who subsequently appealed the Town’s refusal to grant a permit both to the Board and then to this Court.

The fact that Walter Bradbury is not a party to the existing proceeding has no bearing on whether the third element of the test for issue estoppel has been met. ii. discretionary nature of estoppel [ 65 ] As noted by Burrage, J. in Nordica Foods A/S v. Eimskip, USA Icelandic Steamship Inc. , 2013 NLTD(G) 114, at paragraph 53, the determination of whether issue estoppel applies in a given circumstance is a two-step process.

Having determined that all three branches of issue estoppel are met, I must still consider whether I should exercise discretion not to apply the doctrine, recognizing that estoppel is an equitable doctrine whose purpose is to protect against injustice. [ 66 ] At paragraphs 29 and 30 of Nordica , Justice Burrage cited from the Supreme Court of Canada decision in Penner v. Niagara Regional Police Services Board , 2013 SCC 19 , in which the court noted that the doctrine of issue estoppel balances judicial finality and economy with other considerations of fairness to the parties.

At paragraph 30 of Penner , the Supreme Court of Canada summarized the principle of fairness underpinning the court’s discretion not to apply the doctrine as follows: 30 The principle underpinning this discretion is that "[a] judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice": Danyluk , at para. 1 ; see also Toronto (City) v.

C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77 (S.C.C.), at paras. 52-53 . [ 67 ] At paragraph 80 of Nordica , Justice Burrage notes the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Further, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nevertheless be unfair to use the results of that process to preclude the subsequent claim. [ 68 ] On appeal of Nordica , the Newfoundland and Labrador Court of Appeal in Eimskip, USA, Icelandic Steamship Inc. v.

Nordica Foods A/S , 2015 NLCA 17 , agreed with the above statement of principle from Penner . Hoegg, J.A., further commented that the law’s strong interest in the finality of litigation means that the exercise of judicial discretion not to apply the doctrine is circumscribed. [ 69 ] At paragraph 45, Hoegg, J.A. noted that the party relying on the doctrine bears the initial burden of establishing that the three criteria have been met.

The resisting party then has the burden of establishing that it would be unfair to the resisting party if the doctrine was applied and that the court should exercise its discretion not to apply it. [ 70 ] The issue of the nature of the court’s discretion was also dealt with at paragraph 25 of Furlong v. Avalon Bookkeeping Services Ltd. , 2003 NLSCTD 140 . In that case, Hall, J. referred to paragraph 62 of Danyluk in which Binnie, J. noted there is was no doubt that a discretion exists to refuse to apply the doctrine of estoppel.

In the context of prior court proceedings, such a discretion must be very limited in application. However, the discretion is necessarily broader in relation to prior decisions of administrative tribunals. [ 71 ] The Town submits that I should decline to exercise my discretion not to apply issue estoppel in this particular case as the Plaintiff has not demonstrated how its application would work any injustice. The Town’s decision to deny the Plaintiff’s application to develop the Property been thoroughly considered and adjudicated by the Board on two occasions. There was no unfairness in the tribunal process.

Additionally, the Plaintiff has had the benefit of a decision referring the matter back to the Board for reconsideration. Even after that reconsideration, the Plaintiff appealed to this Court and received a final decision from which it did not appeal. The Town submits the prior tribunal and court proceedings were conducted fairly and properly having regard to their purposes. As such, there was no unfairness in the prior proceedings. This is not contested by the Plaintiff. [ 72 ] The Town further submits that this is not a situation where the differences between purposes, processes or stakes involved in

the prior proceedings and the current action are so significant that it would be unjust to use the results from the prior proceedings to preclude this proceeding.

The Plaintiff was expected to raise all relevant issues in the prior proceedings and should not be permitted multiple opportunities to obtain a favourable judicial determination. [ 73 ] As noted by Green, J.A. at paragraph 7 of Quinlan : …as a subspecies of issue estoppel, the doctrine also applies to an issue that, though not actually raised, nevertheless properly belonged to the previous litigation and which could reasonably have been expected to have been brought forward at that time.

This aspect of the doctrine is sometimes called the rule against “litigation by installment”. [ 74 ] On the other hand, the Plaintiff submits that application of issue estoppel in this case would in fact be used to work an injustice.

It asserts that it would be unjust to allow the Town to render the Plaintiff’s Property unusable through the Town’s arbitrary and unfair exercise of discretion without any remedy or right of compensation. [ 75 ] However, I have already found that the pleadings do not allege facts indicating there are questions fundamental to the causes of actions pleaded, including the claim for abuse of authority, that have not already been adjudicated.

Further, even if there was new evidence or a change in facts that would lawfully entitle the Plaintiff to proceed with development of her Property, the Town states that the Plaintiff 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 notice seeking compensation under

section 96 of the Act . [ 76 ] In response, the Plaintiff notes that section 42(11) of the Act does not allow the Board to overrule a discretionary decision on appeal to the Board, suggesting that this claim is the only way of advancing this cause of action dealing with abuse of authority. [ 77 ] However, the Plaintiff has not provided me with any authority indicating this Court would have the ability to override a discretionary decision lawfully made by the Town that was within its jurisdiction.

As my consideration of this submission requires me to consider many of the same factors to be considered in dealing with the Defendant’s claim of collateral attack, I will deal with this issue under the heading of Collateral Attack below. B. Collateral Attack [ 78 ] In addition to the doctrine of issue estoppel, the Town submits that the existing proceeding represents a collateral attack on the prior proceedings that failed to overturn the Town’s refusal to allow the Plaintiff’s application to develop the Property.

The leading Supreme Court of Canada case dealing with the rule against collateral attack is the decision in Garland v. Consumers’ Gas Co. , 2004 SCC 25 . [ 79 ] At paragraph 72 of that decision, Iacobucci, J. noted that the fundamental policy behind the rule is to maintain the rule of law and to preserve the repute of the administration of justice. In particular, he stated: … The idea is that if a party could avoid the consequences of an order issued against it by going to another forum, this would undermine the integrity of the justice system.

Consequently, the doctrine is intended to prevent a party from circumventing the effect of a decision rendered against it. [ 80 ] The Town says that the Plaintiff is seeking to avoid the consequences of the Board orders that were upheld by this Court by pleading that the Town continues to refuse to allow her to build on her Property and by claiming injunctive relief. The Town says that these pleadings clearly seek to invalidate or render inoperative the prior orders. [ 81 ] In the Supreme Court of Canada case of Canada (Attorney General) v.

TeleZone Inc. , 2010 SCC 62 , the court considered whether litigants who do not seek to overturn an administrative decision, but rather seek compensation or damages flowing from that decision, are required to apply for judicial review. At paragraph 64, Binnie, J., relying on Garland , noted that the doctrine of collateral attack does not apply where the new action is to recover financial losses consequent on an invalid or unlawful government decision because the specific object of the action is not to invalidate or render inoperative that prior governmental order.

The court emphasized the clear doctrinal distinction between (

i) the Crown’s liability in tort or contract as a result of an invalid administrative decision; and (ii) the validity of the underlying administrative decision. [ 82 ] The TeleZone decision was considered by the Newfoundland and Labrador Court of Appeal in Best (Guardian ad litem of) v. Nunatsiavut Assembly , 2011 NLCA 36 . At paragraphs 35 to 36 of that decision, the court found that the TeleZone approach requires the court to determine the essential nature of the claims and decide whether the pleadings set out a valid cause of action for damages that fall within the jurisdiction of the court.

In Best , claimants had sought a remedy of enrolment on the register for the predecessor association to the Labrador Inuit Association (“Association”) in prior years. Enrolment would have allowed them to be considered beneficiaries under a land claims agreement. They also sought damages for the alleged arbitrary actions or omissions of the Association in failing to register them or to maintain their membership.

The damages claimed included losses arising from their failure to obtain benefits under the land claims agreement. [ 83 ] That land claims agreement had been explicitly clear on the process to attain beneficiary status. Eligibility was to be determined by an enrollment committee for various regions set up under the agreement with a contractual right to appeal before an appeal commissioner and then an appeal board. Both bodies were established under the agreement. The agreement also set out a right to judicial review of the decisions of the appeal commissioner and appeal board.

The claimants did not avail of these procedures to obtain enrollment under the agreement. [ 84 ] However, the claimants argued they were not in fact seeking enrollment as a beneficiary under the lands claim agreement. Rather, they claimed damages against the Association for their failure to be registered as an Inuit member of that association, thereby losing beneficiary status under the lands claim agreement.

The Court of Appeal held that it did not necessarily follow that the claims for damages calculated by quantifying the benefits they would have obtained under the land claims agreement as a measure of damages constituted a collateral attack under the TeleZone approach. The Newfoundland and Labrador Court of Appeal allowed the class action

claimants to amend their pleadings to include particulars of negligence, arbitrary action and breaches of fiduciary duty. [ 85 ] Following these amendments to the pleadings, Orsborn, J. heard and determined new applications to strike the claims. He considered the essential nature of the claims under the TeleZone approach and concluded that, although framed as an action for damages, the claims were essentially claims for benefits that were only available to Inuit people flowing from an agreement between the Inuit and two governments.

The entitlement to benefits was dependent on a determination of entitlement following application of the membership criteria set out in that land claims agreement. [ 86 ] Claiming the present value of membership benefits as damages did not transform the claim into one in which eligibility for and entitlement to membership was merely a side issue. At paragraph 42, Orsborn, J. held it was the issue – that is, the foundational issue that must be determined before any quantification of benefits could be made.

That determination fell within the exclusive jurisdiction of the bodies established under the land claims agreement and, for purposes of judicial review, the Federal Court. It therefore followed that this Court did not have jurisdiction to adjudicate the claims ( Best v. Nunatsiavut , 2015 NLTD(G) 83). [ 87 ] Similarly, the Town submits that the Plaintiff’s claim for damages and injunctive relief in the within action does not transform their claim into one in which the Town’s decision to deny the Bradburys their application for development is merely a side issue.

It is the foundational issue when the essential nature of the claim is evaluated. [ 88 ] The Town submits that the Act provides and prescribes the process for a person aggrieved by a decision of the Town with respect to an application for development. That process was open to and exercised by the Plaintiff and the matter disposed of through that statutory process.

As the appropriateness of the Town’s refusal to issue a development permit was previously determined and adjudicated by the prescribed statutory appeal process and by this Court, the Town submits that the claim for damages based on the foundational issue that was decided in the statutory process is an impermissible collateral attack on the prior findings of the Board, as upheld by this Court. [ 89 ] Based upon my analysis of the facts and causes of action as pleaded, I agree that the Plaintiff’s claim for compensation, damages and injunctive relief requires this Court to decide the foundational issue of the validity of the Town’s decision.

That foundational issue was previously decided by the Board in accordance with the Act . The essential nature of the claim now before me is to seek damages based on those same alleged lawful or wrongful actions of the Town. The legislature has delegated authority and jurisdiction to the Board to determine such issues, with this Court having the right to judicially review the decisions of the Board.

That has already occurred. [ 90 ] However, as noted above, the Plaintiff submits that, as the Board does not have the authority to override discretionary development decisions of a municipality, this Court may and should hear the matter. However, I must consider that, by operation of the Act , the legislature has determined that discretionary decisions of town councils should be given deference. [ 91 ] The approach of showing defence to discretionary decisions based on legislative intention was referenced at paragraph 45 of the Fry Decision.

Fry, J., as she then was, referred to a decision of Dunn, J. in Paradise (Town) v. Newfoundland and Labrador Eastern Regional Appeal Board , 2010 NLTD(G) 116, a case involving an appeal by the Town of the Board’s overruling of a discretionary decision to refuse to issue a development permit: 27 ENRAB, like this Court, in its review of the appellant's decision was required to adopt the proper approach to the

interpretation of the Town of Paradise Development Regulations, that is, one of a broad and purposive nature. This modern approach recognizes deference is to be shown to decisions of municipal authorities, and this would be particularly so where the authority is exercising its discretionary powers.

As stated by Gushue, J.A., a review board may only overturn the actions of a municipal authority acting in the exercise of its discretionary power where it is demonstrated that without question the municipal authority has acted in excess of those powers . [ 92 ] It is clear that the Act provides the process by which decisions of a municipality can be varied, reversed or overturned and the legislature has indicated that they are not to be overruled on discretionary decisions.

The Plaintiff has provided me with no authority indicating that this Court could oust the jurisdiction of the Board and itself overturn a discretionary decision that the Board could not. [ 93 ] While the Plaintiff has provided me with a number of cases in which courts have considered discretionary decisions by municipalities, in none of these cases was the Plaintiff allowed to by-pass the statutory scheme for review of a municipality’s decision and have the court substitute its own discretionary decision. [ 94 ] Further, in all cases cited to me in which the court enquired into alleged evidence of misconduct, bad faith and improper exercise of discretion, the only cases in which that discretion was overturned were cases in which the municipality’s actions amounted to it acting outside its jurisdiction or illegally.

The Board has jurisdiction to consider such issues. [ 95 ] For example, in Pucci v. North Vancouver (City) , 2010 BCSC 743 , cited by the Plaintiff, the court remitted an application for rezoning back to a municipal council for reconsideration where the former councilors had relied on extraneous or improper considerations, which was a question of jurisdiction. [ 96 ] In Grosvenor , also relied upon by the Plaintiff, the court quashed a by-law that had been passed by the municipality in bad faith. A specific

section of the Municipal Act, 2001 , allowed a person to make application to the Superior Court of Justice to quash a by- law in whole or in part as a result of illegality. [ 97 ] In Seanic Canada Inc. , the Court of Appeal remitted an application to amend a zoning by-law back to council for reconsideration as one of the councilors had prejudged the issue. At paragraph 51, the Court of Appeal agreed that the council’s resulting decision was a discretionary decision.

In making a discretionary decision, the council was to have regard to relevant planning considerations. [ 98 ] However, as the project did not conform with existing zoning, all that the applicant company could expect was that the council would consider the application within the context of the statutory authority conferred on it, with procedural fairness and with

consideration of relevant factors. In that case, the legislation did not have an appeal mechanism with respect to an application to rezone. As such, the court could hear the matter but only send the matter back for reconsideration if the council acted outside the context of its statutory authority, without procedural fairness or without consideration of relevant factors.

The court had no authority to substitute its own opinion. [ 99 ] Further, with respect to the claim of constructive expropriation, even if properly pleaded in this Statement of Claim, the legislature has set out a statutory mechanism to determine whether compensation is due and the amount of any such compensation. The Plaintiff has provided me with no authority to indicate that this Court could independently make a determination as to whether a claim for expropriation has been made out.

In fact, Lynch establishes that all this Court could do, even if it has the ability to hear the matter, is provide a declaration that the Property has been constructively expropriated and refer the issue of compensation back to the statutory procedure. Making such a determination, in turn, would involve the Court having to collaterally attack the findings of the Board with respect to the ownership of the proposed access road and the validity of the Town’s decision to deny approval to develop on the terms proposed by the Plaintiff.

This would be an impermissible collateral attack. conclusion [ 100 ] In conclusion, I find that the Defendant has met all three criteria to establish that the claims of the Plaintiff constitute an abuse of process on the issue estoppel branch on the doctrine of res judicata . The Plaintiff has not satisfied me that I should exercise my discretion not to apply issue estoppel on the basis of fairness. Further, the Plaintiff’s claim constitutes an abuse of process on the basis that it is a collateral attack on the prior proceedings. [ 101 ] The Application of the Defendants to strike the claim under Rule 14.24(1)(

d) of the Rules is therefore allowed and the Plaintiff’s claim is dismissed. As noted above, this does not prevent the Plaintiff from filing another application to develop the Property, with such application and any appeals thereof being determined in accordance with the provisions of the Act . [ 102 ] As the successful party, the Defendant shall be entitled to its costs to be taxed on Column 3 of the Scale of Costs appended to Rule 55 of the Rules of the Supreme Court, 1986 . _____________________________ Rosalie McGrath Justice