58663 Newfoundland v. Labrador Ltd., 2018 NLSC 223

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : 58663 Newfoundland and Labrador Ltd. v. Kippens (Town) , 2018 NLSC 223 Date : November 7, 2018 Docket : 201701G4796 Between: 58663 Newfoundland and Labrador Ltd. APPLICANT And: Town Council of the Town of Kippens First RESPONDENT And: Her Majesty THE Queen in Right of Newfoundland and labrador as represented by the minister of municipal affairs and environment Second RESPONDENT Before: Justice Deborah J. Paquette Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 12, 2018 and August 28, 2018 Appearances: Daniel W. Bennett Appearing on behalf of the Applicant

Mark Mills Appearing on behalf of the First Respondent Mark P. Sheppard Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick, 2008 SCC 9, ; Edmonton (City) v. Edmonton East (Capilano) Shopping CentresLtd., 2016 SCC 47; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61; Atlantic Salmon Federation (Canada) v.Newfoundland (Environment and Climate Change), 2017 NLTD(G) 137; Butler v. Town of Conception Bay South, 2017 NLTD(G) 196;Lynch v. St. John’s (City), 2016 NLCA 35; Leiriao v. Val-Bélair (Ville), (SCC), [1991] 3 S.C.R. 349; Martell v.

Halifax(Regional Municipality), 2015 NSCA 101; Tuteckyj v. Winnipeg (City), 2012 MBCA 100; Thorcon Enterprises Ltd. v. West Vancouver(District), (BC SC), [1988] B.C.W.L.D. 267, 20 B.C.L.R. (2d) 259 (B.C. S.C.); British Columbia (Milk Board) v.Grisnich, (SCC), [1995] 2 S.C.R. 895; Rose v. Grand Bank (Town) (1990), (NL SC), 82 Nfld. &P.E.I.R. 317, 257 A.P.R. 317 (Nfld. S.C. (T.D)); Mifflin v North Atlantic Refining Limited, 2017 NLTD(G) 140; Bhasin v. Hrynew, 2014SCC 271; Weir’s Construction Limited v. Warford (Estate), 2018 NLCA 5 STATUTES CONSIDERED: Urban and Rural Planning Act, 2000, S.N.L. 2000, c.

U-8; Town of Kippens Development Regulations,2011; Municipalities Act, 1999, S.N.L. 1999, c. M-24; Highway Traffic Act, R.S.N.L. 1990, c. H-3.; Expropriation Act, R.S.Q., c. E-24 TEXTS CONSIDERD: Todd, Eric, The Law of Expropriation and Compensation in Canada (Toronto: Carswell, 1992) REASONS FOR JUDGMENT Paquette, J.: INTRODUCTION [1] On 30 April 2017, approval was given by the Minister of Municipal Affairs and Environment (“Minister”) to the TownCouncil of Kippens (“Town”) for the expropriation of a 15.2m parcel of land belonging to the Applicant adjacent to McCarthy’s Lane, adead end residential street.

The Town had initiated the expropriation process to acquire a turnaround for municipal services vehicles. The Approval to Expropriate and accompanying Notice of Expropriation from the Town were received by the Applicant on 9 June 2017. [2] The Applicant applies for judicial review of the Approval to Expropriate and Notice of Expropriation on the grounds thatthere was non-compliance with the Urban and Rural Planning Act, 2000, S.N.L. 2000, c.

U-8 (“Act”), the Town of Kippens DevelopmentRegulations, 2011, (“Development Regulations”) and the Town of Kippens Collector and Supplementary Roads Concept Plan (“RoadsConcept Plan”). It seeks an order of certiorari quashing the decision of the Minister. [3] The Applicant also maintains that the Town’s decision to acquire its land was illegal, in bad faith and ultra vires under theAct. Alternatively, it seeks a declaration that the resulting expropriation was illegal. BACKGROUND [4] Affidavit evidence and the Records of the Respondents were filed in these proceedings.

In 2013, the Applicant applied tothe Town for approval to develop on its lands a 12-lot residential subdivision and an extension to McCarthy’s Lane to facilitate traffic toits proposed subdivision. The Town denied the application at a council meeting 11 June 2015. The Applicant successfully appealed tothe West Newfoundland Regional Appeal Board which vacated the Town’s decision and ordered a reconsideration. [5] On 10 December 2015 the Town again denied the application. This decision was upheld by the Appeal Board. TheApplicant has appealed this decision and has also sued the Town in negligence.

[ 6 ] McCarthy’s Lane had been extended between November 2010 and October 2011 as part of a development application and the road was conveyed to the Town. The subject property was still owned privately, but “its use as a turning circle was arranged for by the Town and permitted by the owner”. It was used in this fashion up until the time that the Applicant erected a steel barrier across it. (Affidavit of L. Hann - Town Manager) Mr. Hann deposed: 9.

Since the erection of the barrier, residents have made repeated and numerous complaints about the inability of municipal vehicles to turn around on McCarthy’s Lane. 10. Large vehicles such as garbage trucks and plows, are now forced to execute unsafe maneuvers, and to incur upon private driveways in order to turn around on McCarthy’s Lane. 11. During winter months, a large buildup of snow and ice is created at the barrier, which has resulted in flooding. 12.

Temporary cul-de-sacs such as the one proposed are commonplace in the Town of Kippens. [ 7 ] In January 2016, the Town obtained an engineering opinion respecting the creation of a turnaround on McCarthy’s Lane.

The engineer outlined three options of differing dimensions pursuant to which the Town could seek expropriation: 1) 15.2 m which is common practice for temporary cul de sacs in Kippens 2) 24.4m to allow turning of largest equipment used by Town(s) 3) 30m to be in line with Town of Kippens Development regulation 86(2) [ 8 ] The Town stated that it considered the first option to be an appropriate temporary measure - the turning circle is the same width as the street and the least intrusive measure until a potential future extension makes it unnecessary. [ 9 ] The Town sent an offer of purchase of the subject property to a representative of the Applicant on 4 April 2016 but did not receive a response.

Subsection 50(4) (

a) of the Act permits commencement of the expropriation process provided that “an agreement cannot be reached on the amount to be paid for the land”.

The Applicant had initially contested the Town’s fulfilment of this precondition, but retreated from this position at the hearing. [ 10 ] On 28 November 2016, the Town’s solicitor wrote to the Minister requesting approval to expropriate the subject property to “install a temporary cul de sac at the end of McCarthy’s Lane to allow for municipal services such as snow-clearing, garbage collection, and for school-bus turnaround.” [ 11 ] The request was considered by officials within the Department of Municipal Affairs and the Town was asked to provide further documentation. Ms.

Blanchard, a senior planner with the Local Governance and Planning Division of the Department of Municipal Affairs and Environment, provided an affidavit in relation to the proposed expropriation. She stated: “As a Senior Planner, I am responsible for reviewing regional and municipal planning documents to ensure consistency with provincial policy and law.” In the course of her work she reviews requests by municipalities for proposed expropriations.

She explained the Department’s understanding of a temporary turning circle: The purpose of the temporary turn-around is to allow for vehicular turn-around at the end of a dead end street, until such time as the street is extended with a loop, an alternate layout for turning around, or road connectivity, and the need for a temporary turning circle is rendered unnecessary. [ 12 ] Her affidavit included appendices which placed McCarthy’s Lane within the context of the Town’s Land Use Zoning Map and the Roads Concept Plan. [ 13 ] On 17 April 2017, a Decision Note was provided to the Minister seeking his decision as to whether to approve the expropriation.

Public safety and vehicle circulation were noted. STANDARD OF REVIEW [ 14 ] Counsel were unable to identify caselaw which has settled the standard of review for ministerial approval of a municipal expropriation under the Act . [ 15 ] The authoritative decision Dunsmuir v. New Brunswick , 2008 SCC 9 , addresses the framework germane to the determination of an appropriate standard of review. A two-part process is engaged. First, has jurisprudence already decided the appropriate standard of review to be applied? Second, if there is no judicial precedent, the following factors are to be considered: (

i) whether the legislation in question contains a privative clause; (ii) the tribunal’s purpose as evidenced by its enabling legislation; (iii) the nature of the question at issue; and (iv) the expertise of the decision-maker (at paragraphs 62 and 64). [ 16 ] The Supreme Court of Canada in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 ,

explained that if the applicable standard of review has yet to be determined, the reviewing court’s first task is to consider whether the issue “involves the

interpretation by an administrative body of its own statute or statutes closely connected to its function.

If so, the standard of review is presumed to be reasonableness…” (at paragraph 22). [ 17 ] The presumption of reasonableness as the standard of review can be rebutted and a standard of correctness applied where the issues are “constitutional questions regarding the division of powers, issues “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”, “true questions of jurisdiction or vires” , and issues “regarding the jurisdictional lines between two or more competing specialized tribunals” ( Edmonton (City) v.

Edmonton East (Capilano) Shopping Centres Ltd. at paragraph 24 citing Dunsmuir at paragraphs 58-61 ). [ 18 ] Rothstein, J. in A.T.A. v. Alberta (Information & Privacy Commissioner) , 2011 SCC 61 , wrote at paragraph 33 : 33. … Experience has shown that the category of true questions of jurisdiction is narrow indeed. Since Dunsmuir , this Court has not identified a single true question of jurisdiction…”. [ 19 ]

Section 50 of the Act governs expropriation by municipalities: 50.

(1) A council may, with the approval of the minister, expropriate property, land or an interest in land in accordance with this Part for the use of the council for the purpose of the powers given to the council under the Municipalities Act, 1999 .

(2) The minister and a council or a regional authority, with the approval of the minister, may, in accordance with this Part, acquire by expropriation or otherwise, land or an interest in land where that land or interest is essential to the carrying out of a plan, including a plan under

Part IV, or regulation, together with (

a) remnants and portions of parcels of land that are necessary for carrying out that plan or regulation; or (

b) land that may be injuriously affected by that plan or regulation [ 20 ] The Minister is authorized by the Act to determine whether the expropriation was for a municipal purpose as set out in the powers granted to municipalities under the Municipalities Act , 1999 , S.N.L. 1999, c. M-24 . Both statutes are connected with the Minister’s functions. [ 21 ] I am satisfied that a determination requiring a specialized knowledge of municipal operations for which advice is received from departmental staff is closely connected with the Minister’s function.

Jurisprudence confirms that this factor supports the standard of reasonableness when considered within the factual and statutory context of the decision. ( A.T.A. v. Alberta (Information and Privacy Commissioner ) at paragraph 34; Atlantic Salmon Federation (Canada) v. Newfoundland (Environmental and Climate Change) , 2017 NLTD(G) 137 at paragraph 49)). [ 22 ] The Applicant referred to the decision Butler v. Town of Conception Bay South , 2017 NLTD(G) 196, as supporting a correctness standard. Butler considered the standard of review in relation to a different

section of the Act : 98. Notwithstanding sections 96 and 97, where development in an area is prohibited under this or another Act or law of the province or of Canada for the purpose of protecting a watershed area or for another environmental reason sections 96 and 97 shall not apply to that land. [ 23 ] The court found that the application of

section 98 engaged a “true question of jurisdiction or vires” because unless the specific statutory criteria were met, the Minister’s powers were curtailed (at paragraph 26). Such is not the case with the expropriation exercised here. [ 24 ] Dunsmuir explains the reasonableness standard at paragraph 47: 47. Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 25 ] I am satisfied that the standard of review in this proceeding is reasonableness. ANALYSIS Whether the Minister’s Decision to Grant Approval to the Town to Expropriate the Applicant’s Property was reasonable? [ 26 ] The Applicant contends that statutory

interpretation favouring the landowner must be applied by the Court in the review of the Minister’s decision. It cites the 1992 text, Todd, Eric, The Law of Expropriation and Compensation in Canada (Toronto: Carswell, 1992) at page 26:

The exercise of the power of expropriation interferes drastically with private property rights and therefore the courts generally construeexpropriation statues strictly and in favour of the individual whose rights are affected. Moreover, as Rand J. said in Diggon-Hibben Ltd.v. R., A compensation statue should not be approached with the attitude that Parliament intended an individual to be victimized in loss becauseof the accident that his land rather than his neighbour’s should be required for public purposes. [27] The Newfoundland and Labrador Court of Appeal in Lynch v. St.

John’s (City), 2016 NLCA 35 (leave to appeal to SCC denied[2016] S.C.C.A. No. 390) considered whether property had been constructively expropriated following refusal to permit a 10-lotresidential development. Barry, J.A. discussed statutory

interpretation at paragraphs 31 and 32: 31. As noted by the majority of this Court in Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43, 215Nfld. & P.E.I.R. 124 (Nfld. C.A.), at para. 15, the Supreme Court of Canada has adopted as its "modern rule" of statutory

interpretationthe statement in Driedger, The Construction of Statutes (2nd ed., 1983), at p. 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. 32. The majority in Archean Resources Ltd., at paragraph 19, also pointed to s. 16 of our

Interpretation Act, R.S.N. 1990, c. I-19: Every Act and every regulation and every provision of

an Act or regulation shall be considered remedial and shall receive the liberalconstruction and

interpretation that best ensures the attainment of the objects of the Act, regulation or provision according to its truemeaning. [28] Concurring in the result, Green, C.J.N.L. addressed statutory

interpretation in separate reasons which were adopted byHarrington, J.A. He wrote at paragraph 75: 75. The real question becomes how does one discern the object and purpose - and hence the legal effect - of the legislative act set inmotion by the legislature? The answer is by reference to all relevant sources of meaning, including the words used, the statutory context,the court's knowledge of the state of the pre-existing law, social context, the perceived mischief that caused the government (or privatemember) to act by introducing the bill into the legislature and the legislative history.

There is no separate stand-alone search for actualintentions of legislators, either collectively or individually. In that sense, the search for intention is fictionalized. Rather, the phrase"intention of the legislature" is a convenient turn of phrase that compendiously encapsulates the result of an interpretive exercise ("our[i.e. the Court's] characterization" of the legislative intent: per Wagner and Gascon JJ. in Minister of National Revenue v. Thompson,2016 SCC 21 (S.C.C.) at paragraph 32) that involves consultation of all relevant sources of meaning.

It is the inference that is drawnfrom all these sources that may, as a convenient fiction, be referred to as the intention of the legislature. In other words, the intention ofthe legislature is not a separate component of the search for meaning, but rather a description of what results from that search, properlyconducted. [29] In Leiriao v. Val-Bélair (Ville), (SCC), [1991] 3 S.C.R. 349, the Supreme Court of Canada considered thesufficiency of a Notice of Expropriation in circumstances similar to those here. The court addressed statutory

interpretation inaccordance with the scheme of the legislation and intent of the legislature at paragraph 30: 30. I consider that s. 570 C.T.A. allows municipalities to expropriate for purposes of a land reserve, as this

interpretation is mostconsistent with the scheme of the legislation and intent of the legislature, and gives s. 29.4 C.T.A. its full meaning. My conclusion is alsoconsistent with the trends in Quebec decisions (see Belcourt Inc. c. St-Laurent (Ville), [1990] R.J.Q. 1122 (C.S. Que.); Belcourt Inc. c.Kirkland (Ville) (November 3, 1989), N[o] C.S. Montréal 500-05-010994-885, J.E. 90-91 (C.S. Qué.); Collins v. Laval (Ville) (May 3,1989), N[o] C.S. Montréal 500-05-001920-881, J.E. 89-899 (C.S. Qué.); and 117080 Canada Ltée c.

Longueuil (Ville), (QC CS), [1988] R.J.Q. 538, [1988] R.D.I. 153, 39 L.C.R. 342, 53 D.L.R. (4th) 506 ( C.S.) ). [30] In Martell v. Halifax (Regional Municipality), 2015 NSCA 101, the Nova Scotia Court of Appeal had occasion to consider theapplication of the restrictive approach as advocated by the Applicant here, explaining at paragraph 23: 23. Is there support for the Appellant's "well-recognized precept"? There is historically, but it appears to be challenged and notuniversally applied in modern times. There is ample authority for the view that such a restrictive approach to by-law

interpretation hasbeen superseded by the modern purposive approach. [31] The modern purposive approach to municipal legislation is also discussed in the Manitoba Court of Appeal decision Tuteckyj v.Winnipeg (City), 2012 MBCA 100 (at paragraph 54): 54. Given these developments in the law, it is clear that the strict compliance approach to statutory

interpretation regarding the powerof public entities, including municipalities, over private property that was in effect at the time of the decision in Riopelle has beenreplaced by the Supreme Court of Canada's adoption of the broad and purposive approach in United Taxi Drivers' Fellowship and ShellCanada Products Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231 (S.C.C.). Thus, the trial judge did not commitan error of law by failing to apply the rule of strict

interpretation. For these reasons, this ground of appeal has no merit.

[ 32 ] On review of the jurisprudence, I reject the Applicant’s arguments that the Act is to be interpreted restrictively and in favour of the Applicant. [ 33 ] The Approval to Expropriate uses language which mirrors subsection 50(1): WHEREAS the Urban and Rural Planning Act, 2000,

Chapter U-8, provides that a Council of a municipality may, subject to the approval of the Minister of Municipal Affairs and Environment expropriate land for a purpose provided to the Council under the Municipalities Act, 1999 . AND WHEREAS the Town Council requires land for the purpose of essential municipal services; AND WHEREAS

Part VII of the Municipalities Act, 1999 allows Council to acquire land for such a purpose; [ 34 ] The Notice to Expropriate adopts the same language: WHEREAS it is deemed necessary to acquire land for in the Town of Kippens for the purpose of essential municipal services; AND WHEREAS the Minister of Municipal Affairs and Environment has approved the expropriation of land to enable the undertaking of the said development in accordance with

Section 50 of the Urban and Rural Planning Act , 2000 ; … [ 35 ] Subsection 50(1) of the Act expressly authorizes expropriation for the purpose of a Town Council exercising powers under the Municipalities Act, 1999 , and the approval to expropriate mirrors the wording of this provision.

The Applicant contends that the failure to reference the subsection is fatal to the validity of the Minister’s decision and advances that the Applicant is prejudiced by not knowing the reason for the expropriation. [ 36 ] The Applicant also contends that the decision to expropriate should be vacated because the Notice to Expropriate does not state the purpose of the expropriation as required by subsection 52(4) (

b) of the Act : A notice of expropriation shall (

b) state the purpose for which the land is required and that it is being taken for that purpose under this Act ; [ 37 ] The Municipalities Act, 1999 , mandates that certain services be provided by the Town. Pursuant to

section 176 the town council must collect garbage: 176. A council shall provide for the collection of solid waste within the municipality and for its disposal in a manner and in a place, either inside or outside the boundaries of the municipality, in accordance with the Environmental Protection Act and regulations made under that Act . [ 38 ] Winter maintenance of highways and snow clearing is also mandatory: 414.

(1) A council shall make regulations (nn) respecting winter maintenance of highways and snow clearing, including regulations which (

i) prohibit or control parking during winter months, (ii) prohibit or control the erection of structures which impede or hinder winter maintenance of highways and snow clearing, and (iii) prohibit or control the deposits of snow on sidewalks and public highways. [ 39 ] The Town has authority over roadways within the municipality pursuant to subsection 163(1) of the Municipalities Act, 1999 :

(1) The ownership, management and control of all highways, sidewalks and bridges in the municipality, except highwaysvested in the Crown under

section 5 of the Works, Services and Transportation Act, are vested in the council. [40] Subsection 2(

l) of the Municipalities Act, 1999, provides that the definition of highway for purposes of the statute is set out inthe Highway Traffic Act, R.S.N.L. 1990, c. H-3: aa) "highway" means a place or way, including a structure forming part of the place or way, designed and intended for, or used by,the public for the passage of traffic or the parking of vehicles and includes all the space between the boundary lines of the place or way; [41] The Applicant cites Thorcon Enterprises Ltd. v.

West Vancouver (District), (BC SC), [1988] B.C.W.L.D.267, 20 B.C.L.R. (2d) 259 (B.C.S.C.) as authority for its position that the expropriation was invalid as failing to properly disclose itspurpose. In Thorcon, an expropriation of land for “municipal purposes” was quashed: 13. The narrow issue raised is whether or not an expropriating by-law must disclose on its face the precise authority pursuant to whichthe power of expropriation is being exercised, failing which it must be quashed for illegality.

Counsel have not directed me to anyauthority which is directly on point, but the petitioner relies on two decisions of our Court of Appeal which are strongly supportive of itsposition. 27. The words "for municipal purposes" disclose no purpose for the expropriation of the petitioner's property which is expresslysanctioned by the powers of expropriation found in the Municipal Act. Accordingly, by-law 3367 is illegal and must be set aside. [42] Iacobucci, J. for the majority in British Columbia (Milk Board) v. Grisnich, (SCC), [1995] 2 S.C.R. 895rejected the analysis in Thorcon, at paragraph 7: 7.

The respondents, in order to bolster their case, rely upon a decision of the British Columbia Supreme Court according to which, itis submitted, municipalities must identify the source of the power they purport to exercise: Thorcon Enterprises Ltd. v. West Vancouver(District) (1987), (BC SC), 20 B.C.L.R. (2d) 259, followed in Thorcon Enterprises Ltd. v. West Vancouver (District),[1988] B.C.J. No. 323 (QL) [ (BC SC), 23 B.C.L.R. (2d) 386], per Spencer J. With respect, I prefer the reasoning ofthe Quebec Court of Appeal in Northern Telecom Ltée c.

Lachine (Cité) (1991), 52 Q.A.C. 63 (leave to appeal to the Supreme Court ofCanada denied, [1992] 2 S.C.R. ix), in which an issue arose as to whether a municipality had to specify on the face of a tax the exactsource of the taxation power.

After reviewing the relevant case law, Proulx J.A. held that there was no requirement for the legislature toindicate upon the face of its taxation regulation under which enabling legislation the business tax had actually been enacted. [43] Thorcon can also be distinguished on the grounds that the municipal legislation under consideration did not contain a power toexpropriate land “for municipal services” (at para. 11).

In contrast, subsection 50(1) of the Act expressly authorizes expropriation “forthe purpose of the powers given to the council under the Municipalities Act, 1999. [44] In Leiriao, the Supreme Court of Canada considered the contents of a notice of expropriation. Subsection 40(2) of theExpropriation Act, R.S.Q., c.

E-24 required that the notice contain a “precise statement of the purposes of the expropriation.” Theappellant asserted that the wording “…the Town of Val-Belair is expropriating the aforementioned immovable property for purposes of aland reserve” was deficient. [45] Upon consideration of the legislative scheme, the Supreme Court of Canada disagreed with the position of the landowner,finding the wording “for the purpose of a land reserve” sufficiently precise for the formal notice of expropriation. The majority wrote atparagraph 47: 47.

I subscribe to the view taken by Mailhot J.A. in the Court of Appeal, who considered that since the creation of a land reserve is amunicipal purpose, it follows that the phrase “for purposes of a land reserve” is sufficiently precise. … [46] I am satisfied that the Minister’s decision that the delivery of essential municipal services constituted a valid expropriationpurpose pursuant to subsection 50(1) of the Act in facilitating the turnaround of municipal essential services vehicles to the currentresidents of McCarthy’s Lane, was reasonable. [47] I also find that the Notice of Expropriation’s wording: “WHEREAS it is deemed necessary to acquire land for in the Town ofKippens for the purpose of essential municipal services” complies with subsection 52(4)(

b) of the Act. [48] As such it is not necessary to consider the application of

section 56 of the Act which provides: 56.

(1) An error in a notice of expropriation does not invalidate the expropriation of the land.

(2) A notice of expropriation may be amended and that amendment shall be served or posted and registered in accordance with thisPart as if it were a notice of expropriation and shall be considered to have been served or posted at the same time as the notice ofexpropriation that is amended. [49] I have concluded that the approval to expropriate for the provision of essential municipal services pursuant to subsection 50(1)of the Act is reasonable. This finding disposes of the judicial review. The analysis which follows explains why I have rejected theApplicant’s position that the expropriation is in breach of the Development Regulations and Roads Concept Plan.

Development Regulations [50]

Section 12 of the Act provides that a plan and development regulations are binding on municipalities. The Applicant alsoattacks the reasonableness of the Minister’s decision by asserting that the expropriation is contrary to

section 86 of the DevelopmentRegulations. The Development Regulations are broken into five parts.

Part II sets out General Development Standards and

Part IVaddresses the Subdivision of Lands. Subsection 86(2) is found in

Part IV and relates to standards applicable for new subdivisions: Every cul de sac shall be provided with a turning circle of a diameter of not less than 30 m. [51] The Applicant argues that the turning circle, only 15.2m, breaches the Development Regulations and invalidates theexpropriation. [52] The Applicant referred the court to Rose v. Grand Bank (Town) (1990), (NL SC), 82 Nfld. & P.E.I.R. 317,257 A.P.R. 317 (Nfld. S.C. (T.D)).

In that case, the Town’s Development Regulations provided that the maximum length of a cul de sacwithout emergency vehicle access was 110 metres and with emergency vehicle access, 230 metres. The Town had expropriated land tocreate a cul de sac which was 277 metres in length. The Town, in that case, argued that the expropriation would improve the street bywidening the existing cul de sac and that so doing did not constitute the development of a subdivision or a new development.

The courtfound the expropriation invalid because contrary to the Regulations. [53] The Applicant takes the position that the expropriation here creates, not a temporary turning circle, but a cul de sac, within themeaning of the Town’s Development Regulations. [54] “Subdivision” and “Development” are defined under the Act and the Development Regulations as: “subdivision” means the dividing of land, whether in single or joint ownership into 2 or more pieces for the purpose of development; “development” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of amaterial change in the use, or the intensity of use of land, buildings or premises and the (

i) making of an access onto a highway, road or way; (ii) erection of an advertisement or sign, (iii) construction of a building, (iv) parking of a trailer, or vehicle used for the sale of refreshments or merchandise, or as an office, or for living accommodation, and excludes the (

v) carrying out of works for the maintenance, improvement or other alteration of a building, being works which affect only theinterior of the building or which do not materially affect the external appearance or use of the building, (vi) carrying out by a local authority or statutory undertakers of works for the purpose of inspecting, repairing or renewing sewers,mains, pipes, cables or other apparatus, including the breaking open of street or other land for the at purpose, and (viii) use of a building or land within the courtyard of a dwelling house for a purpose incidental to the enjoyment of the dwellinghouse as a dwelling; [55]

Section 63 of the General Development Standards section, on the other hand deals with development standards for streetconstruction in the municipality: 63. A new street may not be constructed except in accordance with and to the design and specifications laid down by the Town. [56] The Town submits that the expropriation of the subject property is neither a subdivision nor a development because there areno operations on the land and there is no material change in its use.

It referred to correspondence from the Town Manager to theDepartment of Municipal Affairs explaining that the property had been used as a turnaround to facilitate snow clearing and garbagecollection for approximately five years. It submits as well that the Applicant had permitted this use until the Town declined itssubdivision permit application. The Town had received advice that the preferred option to improve McCarthy’s Lane was the creation ofa temporary turning circle:

From an Engineering point of view for future development, and in line with past and current Town practice to allow 15.2 diameter cul de sacs as a temporary measure for other developments in the Town, it is recommended to proceed with Option 1 (15.2m).

If it is deemed to be a permanent measure, then the Town should proceed with Option 2 or 3 (24.4 m.; 30m)…(correspondence - Justin House, P.Eng to Town of Kippens, 18 January 2016) [ 57 ] It submits that the temporary turnaround status can be changed should for example the residential subdivision be approved in the future. [ 58 ] The Town also asserts that even if the expropriation constituted a development, it is still not a subdivision because the Town is not dividing a parcel into two or more sections.

It follows, therefore that the General Development Standards apply which grant the Town a discretion in determining road standards pursuant to

section 63, referred to above. [ 59 ] The Notice of Expropriation and the background documentation, including the Decision Note to the Minister, make no mention of an expropriation of land essential to the carrying out of the Development Regulations , the very premise of subsection 50(2) of the Act .

The stated rationale for the expropriation was always to facilitate the provision of essential municipal services. [ 60 ] I am satisfied that the Record establishes the reasonableness of the Minister’s decision in its characterization of the temporary turning circle, as street improvement and not the creation of a permanent cul de sac in the context of the Development Regulations . Roads Concept Plan [ 61 ] The Roads Concept Plan was adopted by the Town Council on 14 May 2012, and was incorporated into the Development Regulations . This plan establishes a collector road system.

The Applicant submitted pictures of the Roads Concept Plan which it submits reveal that there is no allowance for the cul de sac which was created by the expropriation of its lands. It submits that the cul de sac breaches the Roads Concept Plan, is invalid and impugns the Minister’s decision to approve the expropriation. [ 62 ] The Town states that the Roads Concepts Plan relates to the connection of existing roads and is not relevant to this proceeding.

The Record available to the Minister included information that the expropriation of the subject property to construct a 15.2m diameter temporary turning circle was similar to other temporary turning circles in the Town and was not in excess of the width of a road right-of- way. The engineering review requested by the Town and available to the Minister, confirmed that it would not preclude the future development of westward lands: This is in line with temporary cul de sacs in Kippens as most roads have a ROW width of 15.2m.

This ensures the cul de sac does not infringe on existing or future residential property boundaries. Note that snow clearing equipment and garbage trucks will have to back up within the cul de sac to turn around, and the full 15.2 m diameter surface will have to be paved and snow cleared for the garbage truck to have bumper clearance in doing so. (correspondence – Justin House, P. Eng. to Town of Kippens, 18 January 2016) [ 63 ] To the contrary, the information available to the Minister indicated that a 30m wide permanent cul de sac would be contrary to the Roads Concept Plan.

The Minister’s decision to approve the expropriation in the context of the Roads Concept Plan is reasonable. Bad Faith Expropriation Request [ 64 ] The Applicant contends that the Town is steadfastly opposed to its plans to develop the McCarthy’s Lane Extension and has proceeded to expropriate its lands in order to foil its residential subdivision going so far as to breach its own regulations in pursuit of this motive. It advances that if the expropriation is ultra vires on this basis then the Minister’s decision is also tainted by the ulterior motives.

The Applicant has failed to meet the evidentiary burden necessary to establish bad faith on the part of the Town or the Minister. Nothing on the record evidences dishonesty or deceit by the Town or that it recklessly and carelessly used its statutory authority to defeat the Applicant’s subdivision proposal. (See Mifflin v North Atlantic Refining Limited, 2017 NLTD(G) 140 at paragraphs 143 and 144, citing Bhasin v. Hrynew, 2014 SCC 271 ).

CONCLUSION [ 65 ] The Minister’s decision to approve the expropriation of the subject property as a temporary turnaround to facilitate essential service delivery in the Town is reviewed on a standard of reasonableness. I am satisfied that the decision falls within “the range of possible, acceptable outcomes which are defensible in respect of the facts and the law”. ( Weir’s Construction Limited v. Warford (Estate) , 2018 NLCA 5 at paragraph 29 relying upon Dunsmuir at paragraph 47 ). I further find that the Notice of Expropriation is compliant with subsection 52(4) (

b) of the Act . [ 66 ] The application for an Order of Certiorari quashing the decision of the Minister to grant an Approval of Expropriation is dismissed. [ 67 ] The application for a declaration that the expropriation was illegal, in bad faith and ultra vires under the Act is denied. [ 68 ] The First Respondent and Second Respondent are entitled to their costs in accordance with column 3 of the scale of costs set out in the appendix to Rule 55.

_____________________________ Deborah J. Paquette Justice