GEORGE YATES Appellant And: town of springdale first respondent AND: CENTRAL nEWFOUNDLAND rEGIONAL aPPEAL bOARD Second Respondent, 2021 NLSC 3

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Yates v. Springdale (Town) , 2021 NLSC 3 Date : January 7, 2021 Docket : 201901G2907 Between: GEORGE YATES Appellant And: town of springdale first respondent AND: CENTRAL nEWFOUNDLAND rEGIONAL aPPEAL bOARD Second Respondent Before: Justice Deborah J. Paquette On Appeal From: Decision of the Central Newfoundland Regional Appeal Board, File Number: 15-006-054-002, with Order dated the 9th day of April, 2019. Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: November 18, 2020 Appearances:

Sarah J. Clarke Appearing on behalf of the Appellant Shawn C.A. Colbourne, Q.C. Appearing on behalf of the First Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Housen v. Nikolaisen , 2002 SCC 33 ; Flynn v. Newfoundland and Labrador , 2018 NLSC 29 ; Markwart v. Prince Albert (City) , 2006 SKCA 122 STATUTES CONSIDERED: Municipalities Act, 1999 , S.N.L. 1999, c. M-24 ; Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 ; Urban and Rural Planning Act , R.S.N. 1990, c.

U-7 RULES CONSIDERED: Appeal Boards (Rules of Procedure) Order, 1993 , Ministerial Order, N. Gaz. 1994.I.19; Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Paquette, J. : INTRODUCTION [ 1 ] The Town of Springdale (“Town”) issued a Demolition Order (“Order”) in April 2017 in relation to the appellant’s private warehouse property. The Order was confirmed on appeal to the Central Newfoundland Regional Appeal Board (“Board”) following a hearing on 9 April 2019.

This is a statutory appeal from the Board’s decision. [ 2 ] The appellant asserts in these proceedings that the Board erred in law and/or committed a jurisdictional error by breaching the rules of procedural fairness owed to him during the hearing arising from (

i) the Board’s incorrect

interpretation of its jurisdiction and its (ii) denial of natural justice in limiting his right to cross-examination. Such was the appellant’s concern with the breach of procedural fairness and the Chair’s ongoing failure to address same, that his legal counsel explained to the Chair that it was necessary to withdraw before the completion of the appellant’s case (pages 135-136 of the transcript): MR. REGULAR: Thank you, Mr. Chair. I feel that I shouldn’t continue, based on the fact that I feel that there is a prejudice against my client and the handling of the matter is not consistent with appropriate practice.

And in light of that, I don’t think my client is getting a fair hearing and we decided that we’re going to, we’re going to stop here and make an application to the court to deal with it. So that’s where we are at the moment. [ 3 ] For the reasons which follow, the appellant has satisfied me that such errors occurred, evidenced by the transcript of the appeal hearing.

In the result, the Board’s decision is vacated and a new hearing ordered. [ 4 ] While the appellant advanced additional grounds of appeal, it would be inappropriate to address these here, given that the appellant was unable to fully advance his case before the Board. STANDARD OF REVIEW [ 5 ] Section 408(1) of the Municipalities Act, 1999 , S.N.L. 1999, c. M-24 (“ Act ”) provides for appeals from the Town’s orders to the appropriate regional appeal board: 408.

(1) A person aggrieved by an order made under subsection 404(1) may, within 14 days of the service or posting of the order, appeal to the appropriate regional appeal board established under the Urban and Rural Planning Act, 2000 and the board may make an order with respect to the matter that appears just. [ 6 ] Subsections 46(1) - (4) of the Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 , (“ URPA ”) provide for a statutory appeal to this Court, limited to errors in law or jurisdiction: 46.

(1) A decision of a board may be appealed to the court not later than 10 days after that decision has been received by the appellant.

(2) An appeal of a decision of a board under subsection (1) may be made on a question of law or jurisdiction.

(3) A board may be represented by counsel and heard on an appeal under this section.

(4) The court shall either confirm or vacate the order of the board and where vacated the court shall refer the matter back to the board with the opinion of the court as to the error in law or jurisdiction and the board shall deal with the matter in accordance with that opinion. [ 7 ] In Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , the Supreme Court of Canada adopts the standard of review referred to in Housen v. Nikolaisen , 2002 SCC 33 , where a legislature has provided for an appeal from an administrative decision to the court.

This is explained at paragraph 37 of Vavilov: 37 It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory

interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 (S.C.C.) , at para. 8 . Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen , at paras. 10, 19 and 26-37 .

Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute. ANALYSIS [ 8 ] The Board’s authority is set out in subsections 42(8) to (13) of URPA : 42. …

(8) A board may inform itself of the subject matter of the appeal in the manner it considers necessary to reach a decision.

(9) A board shall consider and determine appeals in accordance with this Act and a plan, scheme and regulations that have been registered under

section 24 and having regard to the circumstances and merits of the case.

(10) In determining an appeal, a board may confirm, reverse or vary the decision appealed from and may impose those conditions that the board considers appropriate in the circumstances and may direct the council, regional authority or authorized administrator to carry out its decision or make the necessary order to have its decision implemented.

(11) Notwithstanding subsection (10), where a council, regional authority or authorized administrator may, in its discretion, make a decision, a board shall not make another decision that overrules the discretionary decision.

(12) The decision of a majority of the members of a board present at the hearing of an appeal shall be the decision of the board.

(13) A board shall, in writing notify the appellant and the appropriate council, regional authority or authorized administrator of the decision of the board. [ 9 ] The Record filed in these proceedings included the Appeal Boards (Rules of Procedure) Order, 1993 , Ministerial Order, N. Gaz. 1994.I.19, enacted under the authority of section 7(9) of the Urban and Rural Planning Act , R.S.N. 1990, c. U-7. These Rules also address the Board’s authority on appeals, including the right to cross-examine. Subsection 10(

f) provides that the appellant or the appellant’s counsel or representative “shall be permitted to cross examine the respondent and the witnesses as each concludes his or her statement, following which the members of the Board may ask questions”. Subsection 10(

e) provides that the Town both explain to the Board “the grounds for the decision being appealed from” and also “comment on the circumstances and merits of the case”. [ 10 ] The right to cross-examine witnesses is also enshrined in the rules of natural justice. Contrary to the law, the Chair initially advised the appellant that he did not have a right to cross-examine any of the Town’s witnesses. He accorded the right to cross- examination only to the Town.

The following exchange illustrates the position adopted by the Chair at the conclusion of the testimony of the Town’s witnesses (pages 123 to 126 of the transcript): MR. CHAIRMAN: Conclusion remark? Concluding remarks, the Appellant? Mr. Regular, would you like to put or make any –

MR. REGULAR: Mr. Chair, I don’t get – I didn’t get a chance to cross-examine the witness? MR. CHAIRMAN: No. You can make any concluding remarks if you like, anything of

summary as you wrap up but no there’s no cross-examination process. MR. YATES: He cross-examined me. MR. CHAIRMAN: He asked the questions. And you can present anything or ask questions, yes, but – MR. YATES: So that’s prejudice I think, isn’t it? If he asked, he cross-examined me, why can’t he cross-examine yours? MR. CHAIRMAN: This isn’t a, you know, this isn’t a court process and the process that’s set out is you both get a chance to present. You present first of course, the respondent presents afterwards and may cross-examine appellants and that’s the process. So you can, you can certainly make any concluding remarks, you can sum up. You can refer to his presentation in your

summary, if you like, but no, it’s not a court process. MR. REGULAR: Mr. Chair, it would have to be a fair process. UNIDENTIFIED SPEAKER: And for the record – MR. REGULAR: Obviously, if we’re not going to be allowed – UNIDENTIFIED SPEAKER: For the record, the Town has no objection to Mr. Regular being able to ask questions to either of the Town witnesses. MR. CHAIRMAN: Okay, on a procedural point of view? MR. COTTER(?): Whatever is written in the procedure is there in front of you.

MR. CHAIRMAN: Yeah, I mean the procedure is just – MR. COTTER(?): 1993. MR. CHAIRMAN: What is the nature of your concern, Mr. Regular? MR. REGULAR: Mr. Chair, it’s normal to be able to ask the witnesses questions on cross-examination. I understand that this is not a court process but every time I’ve been involved in one of those I have been permitted to use the same practice as the method that we used in court, and in order to make it a fair process obviously we need equal opportunity. MR. CHAIRMAN: No, I mean, – MR. REGULAR: And I understand – MR.

CHAIRMAN: I don’t mean about the process I mean what’s your concern, the nature of your concern with respect to the Respondent’s case? MR. REGULAR: Well, that’s what I want to ask questions about. I want to ask questions of those witnesses. UNIDENTIFIED SPEAKER: Yeah, that’s dealt with – MR. REGULAR: And I (inaudible) – UNIDENTIFIED SPEAKER: – specifically in

section 10(

f) of the rules of procedure. So the appellant does have the right to cross-examine. MR. CHAIRMAN: All right, proceed. MR. REGULAR:

And, Mr. Chair, you know, I don’t want to be a stick in the mud here, obviously, at the end of the day but I have to give my client a proper, you know, I have to get his position before the Board. And of course being able to challenge the witness is very important in that process. MR. CHAIRMAN: Still proceed. [ 11 ] Notwithstanding that the Chair was corrected on his misunderstanding of the right to cross-examine, he persisted in his interference with the appellant’s cross-examination.

This appeared to be motivated by the Board’s incorrect determination that it would not consider how the Town arrived at the decision to issue the Order because such facts fell outside their “purview.” Comments by the Chair in limiting the legal counsel’s right to cross-examine illustrate this error (pages 127-132 of the transcript): MR. REGULAR: And can you tell the panel how this report that we’ve been referring to where you indicate that the CAO report of Expropriation Versus Demolition, can you tell us how that arose? MR.

SPARKS: It arose because of the condition of the property that council had a concern with. They asked me to do some research with respect to what remedy would be applicable to this particular case. They asked would expropriation be an option or would a – MR. REGULAR: What remedy, the remedy for what? MR. SPARKS: The dilapidated state of the building. MR. REGULAR: Okay. So in other words – MR. SPARKS: And expropriation wasn’t appropriate. MR. REGULAR: – what to do about a dilapidated building? MR. SPARKS: Yes. MR. REGULAR: Within Town’s jurisdiction? MR. SPARKS: Yes.

MR. REGULAR: And are you talking about this being a new council? MR. CHAIRMAN: Mr. Regular, I’m going to object to that because how the Town arrived at the decision to issue the Order is not really something that’s in our purview at the moment. We’re looking at the Order itself. So if you have anything in particular as it relates to the merits of the Order or its validity you can jump to it, but we’re not in a position to obtain the background in decisionmaking process at the moment. [Emphasis added.] MR. REGULAR: Mr.

Chair, I feel that I’m being interfered with in my—in the process of my client’s case, and obviously that’s prejudicial to my client. And given that it’s prejudicial to my client and that’s evident at the moment it’s almost pointless for me to proceed. And to limit my capacity to cross-examine the witness, generally that’s unacceptable in any legal matter, any fair process. Any natural justice matter which is what this is, then obviously that’s not appropriate, but you know. MR.

CHAIRMAN: I respect your decision but we’re here to look at, to look at one issue and that issue is a demolition order, and how the Town arrived at that decision and the background thereof and assessment of options is really outside the purview of what we’re looking at. [Emphasis added.] … MR. CHAIRMAN: Unless it ties into the validity of the Order itself, it really is not relevant to this here. MR. REGULAR: Mr.

Chair, if the, if the Town was motivated by wanting to have an unsightly property removed from where it was because it’s unsightly, if that’s what their motivation was and they didn’t have, they didn’t have good reason to do that, taking away somebody’s property is something very significant, especially something that’s cost an individual a significant amount of money, and then when you’re going to take that away and deny them the opportunity to be able to repair and renovate the property and use it for their purposes, obviously that’s a significant thing.

And I understand that you’re concerned only with the Demolition Order, but the motivation for the Demolition Order is something that’s very, very relevant. And that’s what I’m trying to examine on. MR. CHAIRMAN: The motive for the Demolition Order is not something that’s in our purview to – the decisionmaking process is not what’s on the table today. What’s at the hearing, the subject of the hearing today is the Order itself and really that’s all we’re in power to hear. MR. REGULAR: Clearly, Mr. Chair, the Town is entitled to issue a demolition order, that’s in the legislation.

Whether or not they should issue the demolition order is clearly within your purview and is the reason for the appeal. MR. CHAIRMAN: It is absolutely and if you have anything that speaks to the Order itself. – MR. REGULAR:

But you’re not allowing me to. You’re not allowing me to examine the witnesses even and that’s unacceptable. MR. CHAIRMAN: You can certainly – MR. REGULAR: I’ve been for about 32 years and I’ve never seen this happen before. MR. CHAIRMAN: Mr. Regular? MR. REGULAR: Yes, sir. MR. CHAIRMAN: This is not a productive conversation. If you have anything to ask of the Respondent with regard to – MR. REGULAR: Are you – MR. CHAIRMAN: – the Order itself – MR. REGULAR: Are you going to – MR. CHAIRMAN: – you can proceed. MR. REGULAR: Are you going to let me cross-examine the witnesses? MR.

CHAIRMAN: Absolutely, to the extent which it’s relevant to the Board. [ 12 ] Further, by failing to consider the Town’s reasons for issuing the Order and precluding the appellant in his attempt to determine this information from the Town’s representatives through cross-examination, the Board denied the appellant natural justice in not affording him the right to understand the case he had to meet and thereby committed a jurisdictional error. [ 13 ] Butler J. (as she then was) discussed procedural fairness in Flynn v. Newfoundland and Labrador , 2018 NLSC 29 .

The right to be heard includes the requirement that one knows the case one has to meet. Flynn explains procedural fairness at paragraphs 17 to 20: 17 Natural justice is a legal concept which requires fairness in the process of decision-making. Judicial review is used to control the

procedure utilized to exercise legislative powers. If the Court finds a breach of the duty to be fair, the delegate’s actions (and thedecision) are void because the error is jurisdictional in nature (David Philip Jones, Q.C. & Anne S. de Villars, Q.C., Principles ofAdministrative Law, 6th ed. (Edmonton: Thomson Reuters, 2014 at 263). 18 According to the Principles of Administrative Law, at page 263, the scope and extent of procedural fairness will vary by thecircumstances and the subject matter of the case. On the facts before me, the Policy did not establish a code of conduct for theinvestigation. There was no hearing, and the only reference to the Reviewer’s role was in

section 3 of the Policy and stated “Thereviewer may contact the person(

s) who filed the appeal to request additional information but is not required to do so”. 19 The two fundamental principles of natural justice are the right to be heard and the rule against bias. 20 The right to be heard includes the requirement that the person know the case against them and be given an opportunity to answer itbefore the Decision is made. At pages 264-265, Jones and de Villars cite the Supreme Court of Canada decision Baker v. Canada(Minister of Citizenship & Immigration) (1999), (SCC), 14 Admin.

L.R. (3d) 173 (S.C.C.), for the factors which shouldbe considered relevant to determining the content of the duty of fairness as follows: 1. The nature of the decision being made and the process followed in making it. The closer the administrative process is to judicialdecision-making, the more likely it is that procedural protections closer to the trial model will be required. 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. The role of the decision in thestatutory scheme helps determine the content of the duty of fairness.

Greater procedural protections are required when there is no appealprocedure or the decision determines the issue and further requests cannot be submitted. 3. The importance of the decision to the individual or individuals affected. The more important or the greater impact the decision has,the more stringent are the procedural protections. This is a significant factor. The court in Baker commented: The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, themore stringent the procedural protections that will be mandated.

This was expressed, for example, by Dickson J. (as he then was) in Kanev. University of British Columbia, (SCC), [1980] 1 S.C.R. 1105 (S.C.C.) at p. 1113: A high standard of justice is required when the right to continue in one’s profession or employment is at stake.... Adisciplinary suspension can have grave and permanent consequences upon a professional career. 4. The legitimate expectations of the person challenging the decision. The doctrine of legitimate expectations is part of the doctrineof procedural fairness.

If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairness requiresthis procedure to be followed. If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairnessrequires this procedure to be followed. If a claimant has a legitimate expectation that a certain result will be reached, fairness mayrequire more extensive procedural rights than might otherwise be accorded. The doctrine of legitimate expectations does not createsubstantive rights outside the procedural domain.

The “circumstances” affecting procedural fairness take into account the promises orregular practices of administrative decision-makers. It will be generally unfair of the decision-makers to act contrary to theirrepresentations as to procedure or to go back on substantive promises without giving the person affected significant procedural rights. 5. The choices of procedure made by the agency itself, particularly if procedure is a matter of discretion or if the agency possessesexpertise in determining appropriate procedures.

Important weight must be given to the choice of procedures made by the agency and itsinstitutional restraints. This list of factors is not exhaustive. Generally, however, it is imperative that individuals who are affected by administrative decisions begiven the opportunity to present their case in some fashion. They are entitled to have decisions affecting their rights, interests, orprivileges made using a fair, impartial, and open process which is appropriate to the statutory, institutional, and social context of thedecision being made.

With those factors enunciated in Baker in mind, a court must determine whether the procedure that was used inreaching any given decision was, in fact, fair, impartial, and open. This involves a detailed review of the circumstances of each case anda determination of whether the factors were applied properly.

[ 14 ] The Saskatchewan Court of Appeal considered breach of procedural fairness in relation to a demolition order in Markwart v. Prince Albert (City) , 2006 SKCA 122 . There, an adjournment to have legal counsel appear at the appeal hearing was denied. The Saskatchewan Court of Appeal described the procedural fairness obligation engaged by this denial measured by the serious rights at stake in a demolition at paragraph 35: 35 The importance of the decision cannot be understated. That is the importance not only to the City but also to the appellants.

The City is proposing to demolish a building owned by the appellants. This, in my view, is tantamount to expropriation without compensation. The appellants will not only lose an asset for which they will not be compensated, they must pay for the demolition at their own expense. These circumstances require strict compliance with the rules and the duty of fairness.

Given the importance of the matter to the appellants and the importance of the decision itself, in my view, the obligation on the City to ensure procedural fairness was high. [ 15 ] The hearing before the Board was in the nature of a court proceeding with the right to call witnesses and cross-examine them. The appellant was represented by legal counsel and testified.

The right to appeal from the Board’s decision is limited to questions of law and/or jurisdiction, and the appellant and his legal counsel had a legitimate expectation that he would be afforded the rights of other appellants in accordance with the statutory procedure set out in URPA . The demolition of his real property was an issue of significant importance to the appellant.

These are all factors which support the appellant’s assertion that he was denied natural justice arising from the conduct of the Board in curtailing his right to cross-examine the Town’s witnesses as to the decision to issue the Order and I accordingly allow his appeal. The matter is remitted for a new hearing to be conducted in compliance with the procedures applicable to it and the rules of natural justice explained above.

The appellant is to be afforded the right to conduct a full cross-examination of the Town’s witnesses and the Board must consider, with the benefit of the proper examination of witnesses, the grounds for the decision being appealed from. The Board must likewise consider evidence presented by the appellant challenging the necessity for a demolition order and any opinion or report which may be advanced by him regarding the structural integrity of his warehouse when the matter is heard once again by the Board.

ORDER [ 16 ] The matter is remitted to the Board for rehearing in conformity to the direction provided in these reasons. [ 17 ] The appellant shall have his costs as against the Town on the basis of Column 3 of the Scale of Costs pursuant to Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . _____________________________ Deborah J. Paquette Justice