Dalhousie University v. HRM, 2023 NSSC 374

SUPREME COURT OF Nova Scotia Citation: Dalhousie University v. HRM , 2023 NSSC 374 Date: 20231121 Docket: 519239 Registry: Halifax Between: Dalhousie University Applicant v. Halifax Regional Municipality and Halifax University Neighbourhood Association, an unincorporated association represented by Peggy and Shimon Walt Respondents Decision Judge: The Honourable Justice Peter Rosinski Heard: June 15, 2023, in Halifax, Nova Scotia Counsel: Peter Rogers, for the Applicant Randolph Kinghorne, for the Respondent (HRM) (Halifax University Neighbourhood Association not participating)

A document with text on it Description automatically generated By the Court: A - Introduction [ 1 ] In July 2021, Dalhousie University [“Dalhousie”] bought a residential lot [1245 Edward Street, Halifax, Nova Scotia] within its campus footprint, which coincidently had thereon a house built in 1897. [ 2 ] Dalhousie’s assessment was that it was in its best interests to demolish the building on the lot: “before it became unsafe or unsightly… [as it] was contaminated with asbestos, mould and lead paint. There was no safe economically viable use for the building on the property.

Once demolished, the property would then be used to advance Dalhousie’s long-term strategic goal of growing its institutional footprint in a manner that is accessible to Dalhousie’s diverse population, environmentally sustainable, and economically viable.

Dalhousie did not have a specific plan for use of the property at the time of its purchase, but the location immediately adjacent to a university residence within the primary Dalhousie campus area made it a good candidate to integrate into a larger project.” [1] [ 3 ] Dalhousie had no immediate or short-term use or plans for the building. [2] [ 4 ] Dalhousie bought the property for a purpose. [ 5 ] Dalhousie intended to demolish the building. [ 6 ] The lot next door is also owned by Dalhousie.

It is an older multi-unit residence (Glengary Apartments). [ 7 ] Dalhousie could demolish that building as well and later be in a position to build a larger modern construction, if it decided in its exclusive estimation, that that was its preferred use of the property. [3] [ 8 ] By early May 2022, Dalhousie had begun gutting the interior of the building in anticipation of receiving a demolition permit, which it had applied for on May 2, 2022.

[ 9 ] However, on or about May 9, 2022, a special interest group, Halifax University Neighbourhood Association [“HUNA”] made an “application” to have HRM Council’s Heritage Advisory Committee [“HAC”] evaluate the building- exterior’s “heritage value”, with the expectation that the HAC would make a recommendation to HRM Council to designate it a municipal “Heritage Property” - the effect of which would be to put a legislated stay under the Heritage Property Act , RSNS 1989, c. 199 [“ HPA ”], on Dalhousie’s demolition permit, and, if HRM Council agreed to register the property, Dalhousie would thereafter have to maintain the exterior of the building without changes to its heritage character. [ 10 ] By June 13, 2022, HRM Heritage staff had prepared a Research Report to assist the HAC in deciding whether to recommend the property be forwarded to HRM Council for its consideration of whether the property should be designated a municipal Heritage Property. [ 11 ] Dalhousie was unaware that HUNA had made a so-called “third-party application” to HRM Council to have its 1245 Edward Street property designated a municipal Heritage Property until HRM advised of this by letter on June 14, 2022. [4] [ 12 ] Only coincidently, on July 11, 2022, did Dalhousie became aware that the HAC had convened a hearing for July 15, 2022, to consider whether it should recommend 1245 Edward Street for designation as a municipal Heritage Property. [ 13 ] HRM did not provide the HUNA third-party application and supporting documents to Dalhousie; nor did it advise Dalhousie that the HAC would be considering the Application for designation as a municipal Heritage Property on July 15, 2022; nor did it provide a copy of its June 13, 2022, Heritage staff Research Report to Dalhousie until one day before the HAC hearing. [5] [ 14 ] Only coincidently on July 12, 2022, was Dalhousie able to locate a copy of the HUNA third-party Application via an online media report. [ 15 ] Dalhousie applied for and received from HRM, a demolition permit, dated July 14, 2022, with an expiry date of March 1, 2024. [6] [ 16 ] “On July 14, 2022, the day before the accelerated meeting date [7] Dalhousie was advised that it could not make an oral presentation to HAC, but could make written submissions, and was provided a copy of the staff Report by HRM [HRM Heritage staff Research Report] for the first time .” [8] [My underlining added] [ 17 ] The HAC held an expedited meeting on July 15, 2022 (on the minimum three days’ notice required) and recommended that HRM Council designate the property as a municipal “Heritage Property”. [9] [ 18 ] On October 18, 2022, HRM Council was in receipt of Dalhousie’s September 16, 2022, written submissions, and afforded it the usual ten minutes’ oral presentation time before Council. [ 19 ] Dalhousie pointed out to HRM Council that, while the HAC assessed the Heritage Score of the building as 64 out of a possible 100 points, its Heritage Architecture consultant scored the property at only 32 points. [ 20 ] Dalhousie had submitted that: In its conclusion, the [Heritage Architect’s] report refers to the importance of vitality (having a viable human occupancy use of some sort) in heritage conservation.

Dalhousie submit this should be a key consideration for Council before registering a property in the face of opposition from the owner . (p. 133, Record) [My underlining added] [ 21 ] Dalhousie’s consultant stated in conclusion (p. 160, Record): The HRM staff Report concludes with the statement that the ‘building remains in sufficient condition to be a candidate for successful restoration’.

The important issues of cost and vitality are not addressed in the HRM staff Report . (p. 156, Record). … Vitality is a reality of conservation – without utility, the building is destined to be a museum… There has been no discussion about the vitality of the property in its assessment using the ‘Evaluation Criteria for registration of Historic Buildings in Halifax Regional Municipality’. The six criteria used to evaluate a building for registration as being of cultural heritage value do not speak to this requirement.

Comparing the scoring by HRM HAC to that of +VG Architects using the six Evaluation Criteria (HAC = 64; +VG = 32) will identify the differences and highlight the areas of disagreement. [which he does in succinct fashion immediately thereafter]. [My underlining added] [ 22 ] As a result of HRM having designated 1245 Edward Street as a municipal “Heritage” building, Dalhousie was precluded from demolishing the building. [10] [ 23 ] As Dalhousie put it in its September 16, 2022, written submission to HRM Council for its October 18, 2022, meeting: The building has been assessed to be in very poor condition, questioning the long-term viability of the property.

This would require significant financial investment in a building with no genuine prospect of occupancy or use by Dalhousie. [ 24 ] HRM has its in-house Heritage Staff, which can be consulted by the HAC and HRM Council, in relation to the selection of suitable buildings/properties to be considered for designation as “heritage” properties, and their Evaluation Criteria scoring value. According to

section 9 of By-law H 200: HRM “Council may, from time to time, after public hearing, set out and amend such guidelines as it sees fit for the designation of property as Heritage Property , and the Committee shall make recommendations in accordance

therewith.” Presumably the latter is the legislative basis from which the Heritage Value Scoring Evaluation criteria is derived. General procedure at HAC meetings is addressed at s. 5(3): “The procedure of the Committee shall be governed, where not inconsistent with the Act or this By-law, by the Rules of Order Administrative Order of the Region.” [ 25 ] During the decision-making processes in relation to 1245 Edward Street, only Dalhousie presented evidence in relation to the “condition” of the building, and specifically its financial viability .

Dalhousie’s July 15, 2022, written submission to the HAC can be found at pages 42-74 of Kayla MacDonald’s affidavit. [ 26 ] Therein, Mr. Rogers argued that there were “three high level propositions” which “should inform the Committee’s approach towards this property and other properties which the University owns: First, the University’s approach is to build a sustainable, accessible campus that supports modern housing options that contribute to greatly needed supply … Preserving low-density housing that does not meet these criteria is not the answer to affordable housing needs for students or citizens.

Second, … Dalhousie submits that considerable moderation should be used in designating houses of modest architectural interest because they were commissioned by a prominent businessperson. Third, Dalhousie University, as one of the very few Canadian universities with a 200+ year history, takes a long-term view of its planning for both the University, its association with the and the [sic] City, and our Province. Dalhousie is deeply committed to protecting the heritage and character of its campus and its importance within the City.

At the same time, however, it is deeply committed to supporting and fostering the growth of the University, the City and our Province as vibrant, sustainable, accessible places, that look forward at least as much as they look back. The University also requests that the Committee thoughtfully review the attached expert report from Torquil Duncan of Capital Management Engineering Limited . While the report was not received in time for the University to provide substantive comment in the submissions, the University believes it is relevant to the Committee’s evaluation of the property.

However, the University wishes to note that the Report is preliminary, and that the University expects the cost estimate to increase significantly. The University requests that the Committee be aware that the property is in very poor condition. This is illustrated in video footage which is being submitted to the Committee for its consideration… This video shows that the building has an undistinguished addition which is out of character with the original structure.

Although the interior of the building is beyond the purview of the Committee from a heritage preservation perspective, the University wants the Committee to be made aware that attractive woodwork such as baseboards mantles and other trim is being saved for repurchasing in the local market. … We ask that the Committee not be influenced by social media commentary complaining of work on the interior of the building. 1245 Edward Street is not a public building and therefore the interior is not subject to heritage preservation… Finally, Dalhousie University strongly objects to the manner and timing by which this Application has been brought forward .

There have been years to consider the heritage attributes of this building and to seek to have the property registered. It appears, only once it became known that Dalhousie University was undertaking work on the site, and once it became known that Dalhousie had applied for a demolition permit, that HRM has taken extraordinary steps to ensure that Dalhousie’s demolition permit (granted on July 14) could be rendered ineffective by accelerating the Committee’s meeting date from July 27 to July 15. On July 14, 2022, the day before the accelerated meeting date, Dalhousie was advised that he [i.e., Mr.

Rogers] could not make a presentation to the Committee, but could make written submissions, and was provided a copy of the Staff report by HRM for the first time.” The report of Mr.

Duncan , based on his July 6, 2022, attendance at the site, notes that “ the purpose of the assessment was to provide a general overview of the present condition of the building components and to provide an opinion of anticipated costs to remedy any identified physical deficiencies. … Based on the visual assessment and on the information reported the building appears to be [sic] a failed condition . … There were significant indications of major physical deficiencies observed during the site visit… [Recommendations p. 62 MacDonald affidavit] the assessment of the property and building was completed on July 6, 2022.

At the time of the assessment the site appeared to be in poor to failed condition. It is anticipated that the majority of the building components will require replacement or major repair. These include repair/replacement of the siding, roof, complete replacement of the interior finishes, and electrical replacement . Prior to reinstating power and water to the building it is expected that inspection by licensed trades will be required. The overall estimated costs associated with repairing and returning this building to service may not be financial [sic] viable.

A serious review of costs taking into account availability of trades etc. may result in the building being demolished and replaced with new.” [My bolding and underlining added] [ 27 ] The HAC is to be solely focused on the “heritage value” of a property. [11] [ 28 ] HRM’s staff oriented their research and preparation of their Report solely on that factor (while evaluating only the exterior of that building) when assisting the HAC with its advice by way of recommendation to HRM Council. [ 29 ] The HAC is not expressly required to consider the consequent implications of such designation to the owner’s reasonable uses of that property. [12] [ 30 ] However, HRM Council is not so restricted. [13] It is required to consider the effects of such designation on the owner’s interest in the property. [ 31 ] I conclude that HRM Council was required to seriously consider, but did not reasonably do so [see also the videotape and Minutes of October 18, 2022]:

a) the purpose for which Dalhousie acquired the property/the proposed use of its property (at the time of the October 18, 2022, HRM Council meeting); and

b) the “vitality” of the building [14] ;

c) together with the “heritage value” of the building at 1245 Edward Street.

[ 32 ] Dalhousie’s fundamental and consistent position since it purchased the property was that the building on the property was to be demolished. [ 33 ] Dalhousie had no immediate plans for the property after demolishing the building, but had long-term use intended for the property, the specifics of which it had not yet determined. [ 34 ] The October 18, 2022, Council hearing videotape shows that members of Council appeared to consider it relevant to whether the property should be designated a municipal Heritage Property, that Dalhousie did not have a short-term plan/use intended for the property. [15] [ 35 ] That Dalhousie had no immediate plans after the property was demolished, is irrelevant to whether HRM Council should designate the property a municipal Heritage Property. [ 36 ] The short and long term use of its property was a decision exclusively for Dalhousie.

As Dalhousie expressly referenced in its September 16, 2022, written submission to HRM Council (p. 134 Record): “ It was never Dalhousie’s intent to keep 1245 Edward Street as a residential dwelling. … Preserving the house on 1245 Edward Street which would require significant and disproportionate financial investment and could only accommodate a few residents, is not the answer to affordable housing needs for students or citizens.

Furthermore, the property is in very poor condition , which was confirmed by a Property Condition Assessment prepared by Capital Management Engineering Limited, which Dalhousie shared with HAC on July 14, 2022 , and again by +VG Architects … The cost required to rehabilitate the house would be significant and are costs that Dalhousie never intended to incur. … If 1245 Edward Street is registered as a Heritage Property, it will serve no useful purpose to Dalhousie, and Dalhousie will make no further investments in the property.

No public good is served by leaving this failed building standing, further deteriorating and unoccupied, for the next three years .” [My bolding added] [ 37 ] Dalhousie received a Demolition Permit from HRM on July 14, 2022, which HRM is deemed to have known as of July 14, 2022.

I am satisfied that on October 18, 2022, HRM Council knew that HRM had issued a Demolition Permit regarding 1245 Edward Street on July 14, 2022, and although generally (in non- HPA cases) that requires formal notification to HRM of at least 7 days before demolition could be started, the ability to demolish the building in this case upon 7 days notice of demolition was nullified temporarily for 120 days after the HAC recommendation in any event pursuant to sections 14 and 15 of the HPA . [ 38 ] HRM Council was not entitled, by designating the property a municipal Heritage Property, to intentionally effectively defeat Dalhousie’s pre-existing right to demolish the building, on the basis that Dalhousie had no short-term plans for use of the property, and that Council preferred another use of the property as more appropriate. [ 39 ] Moreover, since designating 1245 Edward Street a municipal Heritage Property would confer an “advantage” to HRM (see my other comments regarding “constructive takings”), it was required to have seriously considered the effect of such designation , in relation to the reasonable uses of the property that would remain available to Dalhousie . [16] [ 40 ] It did not. [ 41 ] The “reasons” of the HAC for recommending, and HRM Council for voting, in favour of designation of 1245 Edward Street as a municipal Heritage Property can be discerned from various sources in the “Record” [by which I mean, the Record per se filed by HRM and the Supplemental affidavits herein filed by Dalhousie]. [17] [ 42 ] The HAC assigned a score of 64 of a 100 possible “Heritage” Value points to 1245 Edward Street - that being more than 50 points, this led to its recommendation for designation as a municipal Heritage Property. [ 43 ] HRM Council does not assign its own “Heritage Value” scoring criteria to the property.

From the video of the October 18, 2022, hearing, it appears that Councillors were not much concerned with the specific Heritage Value assigned by the HAC, as long as it was greater than the threshold of 50. They were more generally concerned with whether the property should be so designated. [ 44 ] The “majority” HRM Council members did not expressly give “reasons” per se for their decision.

It is a decision-making process resolved by way of a majority of the votes cast [13 to 4 in dissent]. [18] [ 45 ] Nevertheless, the October 18, 2022, Minutes (p. 206, Record) include: [19] Regional Council stated that the Heritage Property Act allows for third-party Heritage Property registration, recognizing that the third- party Heritage Property registration process could be improved, indicated that the property’s exterior possesses significant architectural style and value that contributes to Halifax’s built heritage , recognized that the Heritage Advisory Committee’s scoring of the property’s heritage value was above the threshold required for registration , indicated concerns about the property owner’s lack of plans to use the property and encouraged the property owner to consider restoration and adaptive reuse of the property to preserve its heritage architecture. [My bolding added] [ 46 ] In my opinion, the latter factor that constituted Council’s reasons [“concerns about the property owner’s lack of plans to use the property”] is irrelevant and an improper consideration, which materially taints the reasonableness of the outcome. [ 47 ] I discuss below my concerns about what a reasonable onlooker could conclude are indicia of actual or an apprehension of bias against Dalhousie by some of the decision-makers.

[ 48 ] Evidence of the circumstances surrounding the time interval before and during that meeting provide further insights into whether the majority’s votes could reasonably have rendered the decision to designate 1245 Edward Street as a municipal Heritage Property; and whether there were indicia of an apprehension of bias, or actual bias, as alleged by Dalhousie. [ 49 ] Having bought the residential lot before it was designated a municipal Heritage Property, was it not then for Dalhousie exclusively to decide what it would do with its property, provided it is not contrary to the applicable laws at the relevant times? [20] [ 50 ] According to HRM Council, it was not. [ 51 ] On October 18, 2022, HRM Council designated the building thereon a municipal Heritage Property. [ 52 ] That designation imposes a substantial and ongoing interference with Dalhousie’s exclusive right to otherwise make decisions about its property.

I bear in mind the statement of “ purpose ” of the Act , in

section 2 of the HPA : “The purpose of this Act is to provide for the identification, designation, preservation, conservation, protection and rehabilitation of buildings, public-building interiors, structures, streetscapes, cultural landscapes, areas and districts of historic, architectural or cultural value, in both urban and rural areas, and to encourage their continued use”; and the definition of “ heritage value ” found that s. 2(be): "heritage value means the aesthetic, historic, scientific, cultural, social or spiritual importance or significance for past, present or future generations and embodied in character-defining materials, forms, locations, spatial configurations, uses and cultural associations or meanings.” [ 53 ] On November 21, 2022, Dalhousie filed a Notice for Judicial Review, requesting this Court quash the decision and require HRM to remove 1245 Edward Street, Halifax, from HRM’s Registry of Heritage Properties. [ 54 ] Dalhousie argues that, on various legal bases, HRM Council’s decision should not be upheld by this Court.

The Notice for Judicial Review raises three grounds for quashing the decision:

a) the decision was made without respect for the statutory purposes of the public notification provisions of the Heritage Property Act , which allow purchasers of property to know whether a property is constrained by its heritage status, and is accordingly ultra vires the Act ;

b) the decision was made without allowing a sufficient standard of fairness and due process commensurate with the factual and statutory context; [21] and

c) the decision was substantively unreasonable as HRM assigned unreasonably high scores on its heritage scoring of the Property, without having attempted to see the building interior [which was] necessary to evaluate its deteriorated condition and the significant changes made to its original architectural style. [22] [ 55 ] Respectfully, I conclude that HRM Council’s decision to designate 1245 Edward Street as a municipal Heritage Property:

a) was the product of an unfair process in all the circumstances;

b) is not one that was within a range of reasonable outcomes; and

c) was tainted by a reasonable apprehension of closed-mindedness at the Heritage Advisory Committee level, and a reasonable apprehension of bias at the HRM Council level of the process. [ 56 ] I quash the decision to register 1245 Edward Street on the HRM Registry of Heritage Property, and order HRM to remove the property from the Registry, and to make corrections to any previously filed/registered public notice of such registration. [23] B - Background [ 57 ] In order to better understand the legal and factual context here, I will review various topics including an examination of the legislative provisions underlying the processes of the municipal Heritage Property designation. 1.

The relevant legislation does not expressly contemplate “applications” (whether by owners or other persons) to HRM for designation/registration of buildings as “Heritage Property” [ 58 ] It appears that the HPA intended that only HRM itself would identify potential “heritage” buildings for such consideration.

Let me next set out an abbreviated context in order to understand the “application” process adopted by HRM herein. [ 59 ] In July 2021 Dalhousie bought the property with the intention of demolishing the building thereon. [ 60 ] On May 2, 2022 , Dalhousie applied for a demolition permit from HRM, which was granted on July 14, 2022. [24] [ 61 ] On or about May 9, 2022 , two individual co-applicants, on behalf of themselves and others who signed an online petition in support of an informal group under the banner of the “Halifax University Neighbourhood Association” [HUNA], filed a so-called “third party application” requesting HRM Council to add the property to the municipal Heritage Property Registry. [ 62 ] Although HRM has an “Application” form/template (p. 3 Record) that could permit any third-party to make application to request HRM Council designate any property a municipal Heritage Property, there is no legislated basis for such an “application” - not in the Heritage Property Act and not in HRM By-law H-200.

The Court wrote to counsel after the hearing on June 15, 2023, and requested their perspectives about “what is the statutory or other authority for such ‘third-party’ applications?”. [ 63 ] Counsel for HRM, Mr. Kinghorne responded in part:

… The HPA [ Heritage Property Act ] is silent on how a property gets before the HAC [Heritage Advisory Committee] to consider [ sic ] for a recommendation, and there is nothing in the HPA that precludes a property owner or third-party applicant. On its face the HPA only seems to authorize the HAC on its own initiative to identify and make recommendations. Implicitly, the HRM Council could request the HAC to investigate and make a recommendation on the property.

If the absence of express authority to seek HPA registration was determinative of the matter, then there could never be any registration on [ sic ] based on the request of the Council, the property owner or anyone else. HRM has reasonably interpreted the HPA otherwise. It is our understanding that the HPA provincial registrations are conducted similarly regarding third-party application on corresponding language. [25] Under the HRM

interpretation the practice has fallen into place over many years that the HAC will consider the appropriateness for registration of properties identified by HRM staff, the property owners, and anyone else who comes forward. There has never been any suggestion of a lack of bona fides on the part of those presenting their requests. [My bolding added] [ 64 ] Dalhousie likewise responded , to my question, having the benefit of receiving Mr. Kinghorne’s response: … Dalhousie agrees with Mr. Kinghorne that the HPA is silent on that subject.

Furthermore, HRM’s own By-law found at Tab 15 of HRM’s Record, does not contain any authority whatsoever for third parties to make such applications either. Certainly, it is implicit in conferral of authority to the Municipality, that the Municipality itself has the right to ask its HAC to advise it on particular properties for heritage registration. Further, Dalhousie does not dispute that a property owner likely has standing to request registration. The standing of any other member of the public to do so is not, however, at all obvious.

Standing is often an issue expressly addressed in municipal legislation where it is intended to be conferred upon persons whose property is not the subject of municipal process. For example, third parties never have standing to appeal a decision of a municipal development officer to grant the development permit or to approve a subdivision: see for example the Municipal Government Act section 247(3) and the Halifax Regional Municipality Charter section 262(3) . Only an ‘aggrieved person’ has the right to appeal certain planning decisions of municipal councils: Municipal Government Act ss. 247(1) and (2).

An ‘aggrieved person’ for such purposes is defined in the Municipal Government Act , s. 191 and Halifax Regional Municipality’s Charter s. 209(aa). As for the HPA itself, s. 15(2) notably gives only the owner a right to a hearing. If third-party applicants were contemplated, one would expect that the hearing would refer to their participation. Explicitly, only the Council or the owner can apply under

section 16 for deregistration of municipal heritage properties. Also, the Act does not provide for notice of

section 16 hearings to be given to third parties who may have made initial registration applications – likely because there was no intention to confer authority on third parties to make such applications in the first place. The HPA silence on third-party applications to register an individual Heritage Property is in contrast to the specific provisions applicable where Heritage Conservation Districts are involved. Such districts involve multiple properties and one can understand the interests of one property owner being affected by certificates allowing others in the district to alter the exterior appearance of the buildings. Thus, we see in

section 19H of the HPA that ‘aggrieved persons, as defined in subsection 19H (2), have a right of appeal the granting of such certificates to the UARB. Our conclusion is that the HPA and the applicable HRM By-law do not provide standing for third parties to make applications for registering someone else’s property . Otherwise, it would allow third parties to weaponize the HPA as a means to protect their own interests – including interests relating to non-heritage issues, such as potential developments.

That does not mean that third parties cannot be a source of information for the municipality to consider registration.

But what it does mean, for purposes of the present case, is that HAC had no obligation to consider the information or application from HUNA, let alone having an obligation to consider it on some basis of urgency. … HRM was simply wrong to treat the HUNA application for Edward Street as an application either HAC or Council was obligated to consider . [My bolding added] [ 65 ] In its July 4, 2023, response, HRM says: … Dalhousie is urging the court to strip from these interested members of the public the opportunity to participate in preserving heritage properties that HRM has afforded them… HRM’s

interpretation of its authority under the HPA to follow this procedure, is in accordance with the HPA objective of identifying and preserving heritage properties… Accepting third-party applications is a reasonable

interpretation of the HPA and further to Vavilov [2019 SCC 65] the court should defer to HRM on this. A longtime practice related to such applications, has created a reasonable expectation of the public that their applications will be processed by the HAC. [My emphasis added] [ 66 ] I agree with Dalhousie’s position on this issue. [ 67 ] Let me at this point make some preliminary observations. [ 68 ] I note that there is no express reference to any such “application” to the HAC in

section 13 HPA [“Powers of Heritage Advisory Committee”] or in

section 4 of By-law H-200 [“Powers of the Committee”]. [26] [ 69 ] The use of a “third-party application” as used in this case, is not expressly authorized in the legislation, subordinate legislation, or policy. [27] [ 70 ] On a practical level, HRM has its own “Heritage” staff, so it is fully capable of independently identifying properties that should be considered for municipal Heritage designation without the unnecessary intervention of, and consequent concerns about the so-called “weaponization” or otherwise inappropriate invocation of such processes by, third parties. [28] [ 71 ] At most, in any event, these so-called “applications” could only amount to a “request” to have the HRM consider investigating whether a property should be considered for designation - yet even then, the above-noted concerns may still be present. [29] [ 72 ] Thus, although there is no express legislated legal obligation upon HRM once in receipt of so-called “third-party applications” made to the HAC to conduct an assessment of such properties, by considering itself so prompted to undertake an assessment in this

manner,[30] the HAC is making a “decision” which affects the substantive rights of Dalhousie.[31] [73] By HRM’s accepting a third-party application, which third-party has pre-selected a specific property for consideration by theHAC (including HRM in-house Heritage staff), the HRM process for the designation of a property as a municipal Heritage Property hasbeen deliberately triggered (which would not otherwise have been the case). [74] Additionally:

a) the HAC decides whether the property will even go on to be considered for designation as a municipal Heritage Property byHRM Council: “Should the Heritage Advisory Committee score a property with 50 or more points, a positive recommendation will beforwarded to Regional Council. If the property scores less than 50 points, the report will not be forwarded to Regional Council”[32]; and

b) in this specific case the decision to recommend to HRM Council (which was communicated to Dalhousie on July 15 2022, byForm A- see para. 21 HRM brief June 1, 2023) that the property be designated a municipal Heritage Property also has the effect ofstaying for 120 days the demolition permit that was issued to Dalhousie on July 14, 2022, per sections 14 and 15 of the HPA. [75] Although the HAC is not the ultimate decision-maker per se, it is a creation of, and supervised by, HRM Council, and thereforeCouncil is also responsible to ensure that the HAC process is “fair” in any individual case. [76] In its supervisory role, HRM Council is responsible to ensure that the recommendation it has received from the HAC wasmade in a fair manner, including that the recommendation was not rendered in circumstances where there is a reasonable apprehension ofclosed-mindedness on behalf of HAC members; that the recommendation was not based on irrelevant or arbitrary considerations; or thatthe HAC failed to consider material relevant considerations. [77] Depending on the specific circumstances in a given case, the systemic prejudice to the property owner flowing from the natureand degree of the lack of fair process may taint the recommendation of the HAC to such an extent that it would be unfair or unreasonablefor the HRM Council to place reliance thereon. [78] Next, let me briefly reference the fundamental property interest that Dalhousie, as a real property owner, acquired when itpurchased 1245 Edward Street, which was long before it had any inkling that the property could be subject to a municipal HeritageProperty designation.[33] 2.

The importance of the decision to the property owner/Dalhousie [79] In Canada, the criminal law recognizes the right of a real property owner to be left in peace while on their property. [80] As Justice Dickson stated for the majority in Eccles v. Bourque et al., (SCC), [1975] 2 S.C.R. 739, regardingwhether there was a common law right not to be arrested by state authorities on your own private property: The first issue, therefore, depends upon the second issue, videlicet, can the trespass be justified on common law principles?

For theseprinciples, we go back to vintage common law, to 1604, and Semayne’s Case (1604), 5 Co. Rep. 91a, 77 E.R. 194, in which theprinciple, so firmly entrenched in our jurisprudence, that every man's house is his castle, was expressed in these words [p. 195]:"That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for hisrepose".

That, then, is the basic principle, as important today as in Biblical times (Deuteronomy 24:10) or in the 17th century. [My bolding added] [81] Similarly, in the civil law, the perimeter of one’s property is considered to be inviolable - and anyone who crosses withoutlawful authority or permission is a trespasser. [82] When one buys real property, one expects to be able to do on one’s property anything that is not prohibited by the law at thattime. [83] One also expects that the restrictions relating to what one can do with one’s property will not be unfairly, unreasonably, andmaterially increased. [84] When such increased restrictions are imposed unilaterally by the State (in this case, HRM), real property owners can, inlimited circumstances, rely upon the common law to protect their private interests, using any available court processes. [85] Next, let me set out what interest Dalhousie had in the property, in which it acquired a “fee simple” interest. [86] In the Second Edition of his Introduction to Real Property Law (Butterworth & Co. (Canada) Ltd., 1982), Professor Alan M.Sinclair stated at page 13, under the heading “Freehold Estates”:[34] 1.

The fee simple Remember that the word ‘estate’ comes from the word ‘status’ and you will see what is meant by the statement that the fee simple is thelargest estate known to the law.

It means that if a man owns an estate in fee simple, his interest is as large in relation to that land as ispossible to have and his status is the greatest, for it will last potentially longer than any other of the estates. [87] However, an owner of real property is not completely “free” to do with their property as they wish - real property is also subjectto regulation by government, sometimes in a substantial manner. [88] An example of this flows from section 12(1) of the HPA:[35]

“A municipality may by by-law establish a municipal registry of heritage property.” [ 89 ] In Annapolis Group Inc. v. Halifax Regional Municipality , 2022 SCC 36 , the Majority, per Justices Russell Brown and Suzanne Côté, considered the circumstances in which state regulation of land use may amount to a de facto , or “constructive”, taking of private property. The appellant claimed that HRM used regulatory powers to effectively seize a piece of property without compensation. The Nova Scotia Court of Appeal struck out the claim, applying Canadian Pacific Railway Co. v.

Vancouver (City) , 2006 SCC 5 , [2006] 1 S.C.R. 227. The Majority said: [ 4 ] We would allow Annapolis’ appeal. The Court of Appeal, in our respectful view, misapplied CPR and

summary judgment principles. Read in harmony with the jurisprudence upon which it was decided, CPR signifies that a constructive taking occurs where: (1) a beneficial interest — understood as an advantage — in respect of private property accrues to the state, which may arise where the use of such property is regulated in a manner that permits its enjoyment as a public resource; and (2) the impugned regulatory measure removes all reasonable uses of the private property at issue.

Further, the Court of Appeal erred by holding that Halifax’s intention is irrelevant to applying the second part of that analysis. … … [ 9 ] At issue in this appeal is Annapolis’ allegation of a constructive taking. Specifically, Annapolis says that Halifax’s regulatory measures have deprived it of all reasonable or economic uses of its land, resulting in a constructive taking without compensation, contrary to ss. 65 and 237 of the Halifax Regional Municipality Charter , S.N.S. 2008, c. 39 , and ss. 6 and 24 of the Expropriation Act , R.S.N.S. 1989, c. 156 .

It alleges in particular that Halifax has acquired a beneficial interest in the Lands by exercising dominion over them so as to effectively create a public park at Annapolis’ expense. According to Annapolis, members of the public hike, cycle, canoe, camp, and swim on the Lands, are encouraged to do so by Halifax, and Halifax financially supports organizations that also encourage people to use the Lands as a park. Further, signs posted on the Lands allegedly depict the municipality’s logo and phone number, and a media

article quotes a municipal employee referred to as “the city staffer overseeing the park’s creation”. [My italicization added] [ 90 ] The Majority went on to review the law of takings, and the meaning of “beneficial interest”: A. Overview of the Law of Takings [ 17 ] It is useful to begin with a brief overview of the law of takings. Given the facts of this appeal, our focus is on expropriation through regulation — which, again, we refer to as a “constructive taking” …. [ 18 ] A “taking” is a “forcible acquisition by the Crown of privately owned property . . . for public purposes” (K. Horsman and G.

Morley, eds., Government Liability: Law and Practice (loose-leaf), at § 5:1).

It may take the form of a constructive taking (effective appropriation of private property by a public authority exercising its regulatory powers), or a de jure taking (formal expropriation), by (in the case of land) taking title. [ 19 ] To be clear, not every instance of regulating the use of property amounts to a constructive taking. … The line between a valid regulation and a constructive taking is crossed where the effect of the regulatory activity deprives a claimant of the use and enjoyment of its property in a substantial and unreasonable way, or effectively confiscates the property (Horsman and Morley, at § 5:2).

Put simply, “in order for a Crown measure to effect a constructive taking of property, private rights in the property must be virtually abolished, leaving the plaintiff with ‘ no reasonable use ’ of the property” (Horsman and Morley, at § 5:13 (emphasis added)). … [ 25 ] This legal backdrop brings us to CPR , and its elaboration of the common law rule in the form of a two-part test for showing a constructive taking: “. . . (1) an acquisition of a beneficial interest in the property or flowing from it, and (2) removal of all reasonable uses of the property . . .” (para. 30 (emphasis added), citing Mariner , at p. 716; Manitoba Fisheries ; Tener ).

The issues present in this appeal require us to consider the meaning of a “beneficial interest in the property or flowing from it” under the first part of that test. In bringing greater clarity to this aspect of the CPR test, we do not change the doctrine of constructive takings, but simply apply it to the facts of the present dispute. As we will explain, the Court in CPR did not use “beneficial interest” in the technical sense that it carries in the domain of equity.

Rather, a “beneficial interest” is to be more broadly understood as an “advantage” — hence the Court’s coupling of “beneficial interest” with the phrase “or flowing from [the property]”. Clearly, if the interest acquired by the state can be one which flows from the property, what must be shown by the property owner can fall short of an actual acquisition by the state. [ 26 ] Further, we must also decide the relevance, if any, under the second part of the test of the public authority’s intended use of the land.

B. “Beneficial Interest” … [ 40 ] Secondly, interpreting “beneficial interest” broadly (as meaning a benefit or advantage accruing to the state) ensures CPR ’s coherence to Manitoba Fisheries and Tener , neither of which understood “benefits” in the strict equitable sense of that term. Again, the references to those authorities in CPR demonstrate that CPR merely sought to affirm, and not to alter, our law of constructive takings. This

interpretation is supported by the explicit wording under the first part of the CPR test: “. . . a beneficial interest in the property or flowing from it . . .” (para. 30 (emphasis added)). An interest flowing from the property affirms that a “beneficial interest” can be more broadly understood as an advantage, and need not be an actual acquisition.

…

(4) Conclusion on “Beneficial Interest” [ 44 ] In sum, we affirm that the test to show a constructive taking is that stated by CPR , properly understood. The reviewing court must decide: (1) whether the public authority has acquired a beneficial interest in the property or flowing from it (i.e. an advantage); and (2) whether the state action has removed all reasonable uses of the property . This gives effect to this Court’s acknowledgement of a common law right to compensation where the two-part CPR test is satisfied.

It accords with imperatives of justice and fairness, which underpin the court’s assessment of expropriation claims, and remedies situations where cases do not neatly fit within the expropriation legislative framework and would otherwise “fall between the cracks” (Warchuk, at pp. 686 and 690). [ 45 ] To this, we would add that, because the test focusses on effects and advantages , substance and not form is to prevail. A court deciding whether a regulatory measure effects a constructive taking must undertake a realistic appraisal of matters in the context of the specific case, including but not limited to: (

a) The nature of the government action (i.e., whether it targets a specific owner or more generally advances an important public policy objective), notice to the owner of the restrictions at the time the property was acquired, and whether the government measures restrict the uses of the property in a manner consistent with the owner’s reasonable expectations; (

b) The nature of the land and its historical or current uses. Where, for example, the land is undeveloped, the prohibition of all potential reasonable uses may amount to a constructive taking. That said, a mere reduction in land value due to land use regulation, on its own, would not suffice; and (

c) The substance of the alleged advantage. The case law reveals that an advantage may take various forms. For example, permanent or indefinite denial of access to the property or the government’s permanent or indefinite occupation of the property would constitute a taking ( Sun Construction , at para. 15). Likewise, regulations that leave a rights holder with only notional use of the land, deprived of all economic value, would satisfy the test.

It could also include confining the uses of private land to public purposes , such as conservation, recreation, or institutional uses such as parks, schools, or municipal buildings. … [ 52 ] Respectfully said, neither position is correct. The public authority’s intention is not an element of the test for constructive takings at common law. Again, the mischief addressed by the doctrine is one of advantage and effects, not that a public authority acted in bad faith or with an otherwise ulterior motive .

Indeed, this Court held in CPR that, even if the City’s purpose were to “enable the inhabitants to use the corridor for walking and cycling,” its By-law, in effect , neither encouraged trespassing nor prevented the historical and current use of the land (para. 33) and therefore could not be said to have deprived the landowner of all reasonable uses. [ 53 ] This does not mean, however, that intention is irrelevant to the inquiry. Indeed, the case law we discuss below suggests that the objectives pursued by the state may be some evidence of constructive taking.

Stated differently, the intention to take constructively, if proven by the claimant, may support a finding that the landowner has lost all reasonable uses of their land (inasmuch as a finding of this effect can be supported by evidence that such an effect was intended). But the absence of evidence of the state’s intention does not preclude a property holder’s claim. It follows that intent may constitute a “material fact” in the context of a constructive taking claim.

We stress, however, that the focus of the inquiry must remain on the effects of state action. … [ 57 ] In short, the underlying objective pursued by a public authority may provide supporting evidence for a constructive taking claim. But it is neither necessary nor sufficient. The case law indicates that the assessment of intent has proved helpful in distinguishing between mere regulations in the public interest and takings requiring compensation at common law.

What ultimately matters, however, irrespective of matters of intent, is whether the state-imposed restrictions on the property conferred an advantage on the state that effectively amounts to a taking ( Tener , at pp. 563-65, per Estey J., and pp. 551-52, per Wilson J.; Manitoba Fisheries , at p. 118). [My bolding added] [ 91 ] In my view, the designation 1245 Edward Street as a municipal Heritage Property, is in law, or at the very least closely approaches to, a constructive “taking” by the State (HRM) of private property owned by Dalhousie. [36] [ 92 ] HRM acquired “an advantage” by designating the property a Heritage Property.

It was acting in furtherance of its objective of preserving properties which it assesses as worthy of the municipal “Heritage” designation. [ 93 ] Dalhousie bought the property for a specific purpose - to demolish the building so the vacant lot would be available to it for further development in the longer term.

The evidence presented is that it was “cost prohibitive” to rehabilitate the building, and that, Dalhousie had no use for the building in its existing condition. [ 94 ] Had this designation existed at the time the property was available for sale, Dalhousie has indicated that it would not have purchased the property.

Dalhousie’s intention was always to demolish the building. [ 95 ] Designating the property as a municipal Heritage Property precluded Dalhousie from demolishing the building, and defeated its purpose and plans for 1245 Edward Street. [37] [ 96 ] This substantial interference, which arguably amounts to a constructive taking of the property by HRM from Dalhousie, is most relevant here to the analysis of whether there was a defensible reasonable basis for this outcome, and whether there were correspondingly calibrated levels of procedural fairness in place.

[ 97 ] Seen in this light, municipal Heritage Project designation processes and decisions are of a nature that they correspondingly require HRM to ensure that property owners such as Dalhousie are involved, and provided with an effectual and timely level of procedural fairness throughout the process that HRM undertakes. [ 98 ] Since a property owner’s substantive rights in relation to the property will be engaged from the point at which the registration process is triggered, including when a “third-party application” (and any “request” to similar effect or a unilateral decision by HRM itself have a heritage staff report created regarding the property) is received by HRM, the property owner should then also receive immediate notification including the Application and supporting documentation from HRM. [38] C - The applicable standards of review [ 99 ] Dalhousie has included in its Notice of Judicial Review, and in its arguments, three overall grounds. [ 100 ] Let me briefly deal with the first ground. 1.

Was HRM’s decision ultra vires the Heritage Property Act because it thwarted the purpose of the Act by denying notification to prospective buyers? [ 101 ] In

summary, Dalhousie argues that the HPA intends registration of properties as municipal Heritage Properties to be a means to alert prospective buyers to the restrictions on the property’s buildings. In this case, Dalhousie purchased the property intending to ultimately demolish it. By designating the property a municipal Heritage Property after Dalhousie purchased it having made HRM (the HAC and Council) aware that it did so with the intention of ultimately demolishing it, HRM Council, by ignoring that fact, subverted the intention of the HPA notification of such registrations.

Dalhousie elaborates in its May 15, 2023, Brief, starting at paragraph 236: [Relying on the reasons in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 at paras. 68 and 108] “ … the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority, …”. Because Council (and HAC) are statutory bodies, the governing statutory scheme is ‘likely to be the most salient aspect of the legal context relevant to a particular decision’.

The HPA is the relevant statute that constrains Council’s discretionary authority to register a property. It follows that Council decisions must fall in line with the overall purpose and scheme of the Act . The HPA provides for registration of municipal heritage properties on public registries, namely a municipal Heritage Property’s Registry and the Registry of Deeds. The provisions pertaining to public registration serve an important role in advancing the Act ’s purpose of responsible government regulation of real property to promote conservation of buildings with genuine heritage value pursuant to

section 2 . The registration provisions allow for the public – including prospective purchasers and financers, – to know whether a property is encumbered by heritage registration before buying it. In other words, these provisions ensure that purchasers understand the consequences of buying the property before they do so. When Dalhousie purchased it, the property was not listed in any provincial or municipal Heritage Registry, nor was its Heritage status listed as an encumbrance in the Registry of Deeds. Dalhousie purchased the property in reliance upon its non-Heritage status.

Furthermore, Dalhousie applied for and received the demolition permit in reliance of the property’s non-Heritage status. The Record shows the Council gave no regard to Dalhousie’s reliance of the property’s non-Heritage status, nor did it regards the timing by which the Heritage Application was brought forward .… It appears that only once it became known that Dalhousie intended to demolish the property that HRM took extraordinary steps to consider the property’s Heritage attributes.

If it were a genuine Heritage Property it likely should have been evaluated and registered at a time when it could have a viable human occupancy to help support conservation and preservation. This is an improper and unreasonable use of Council’s discretionary authority to register properties. Council, in resolving to register the property, effectively made an “end run” around the public notification objectives of the HPA . It is ultra vires Council’s authority to disregard the Act’s public notification objectives and the fact that HRM had already issued a demolition permit to a bona fide purchaser.

It is not a situation where the registration Application came forward in the ordinary course as a result of reviewing properties in the area, in which case the fact that the owner bought the property sometime previously, when there was no heritage encumbrance would be irrelevant. But here, the buying of the property with the intention of lawfully demolishing it to the point of applying for and obtaining a demolition permit sets this case on a different footing.

Essentially , it was only because the owner was openly on that course, that HUNA applied or that the Municipality intervened on a so-called ‘emergency’ basis . ” [My bolding added] [ 102 ] While Dalhousie characterizes HRM Council’s decision as ultra vires the HPA and “unreasonable”, in substance its argument is that the decision was “unreasonable”. [ 103 ] I do not accept that the Council’s decision was ultra vires in the strict sense of that concept. [ 104 ] The HPA is intended to, and does, permit a municipality to designate as municipal Heritage Property, properties that are not presently municipal Heritage Property. [ 105 ] I accept that the HPA did not intend any buyer of real property who purchases it before a municipality designates it a municipal Heritage Property to be able to successfully argue later that because they were not so notified at the time of purchase, therefore HRM is precluded from designating it a municipal Heritage Property. [ 106 ] On the other hand, the fact that HRM did not engage the process to designate the property a municipal Heritage Property until Dalhousie had applied for a demolition permit, and then in response to public outcry, did so, may be part of a factual context that leads a court to conclude the decision is procedurally unfair, tainted by alleged closed-mindedness, a reasonable apprehension of bias, and that it is substantively unreasonable. [ 107 ] Therefore, I will not deal with this as an independent ground for judicial review, but rather as part of the unreasonableness ground, and to the extent that it is applicable, incidentally as part of the unfair process ground. [ 108 ] Let me next consider the standard of review for the argued procedural unfairness issues.

2. What is the standard of review in relation to allegations of unfair process[39], and was it breached? (

a) The standard of review [109] First let me set out the standard of review,[40] referencing an excerpt from Jono Developments Ltd. v. North End CommunityHealth Association, 2014 NSCA 92: 41 The reviewing judge correctly identified the principle that no standard of review analysis governs judicial review, where thecomplaint is based upon a denial of natural justice or procedural fairness. (See for example, G. (T.) v. Nova Scotia (Minister ofCommunity Services), 2012 NSCA 43 (N.S.C.A.), leave to appeal refused, [2012] S.C.C.A.

No. 237 (S.C.C.), at ¶90). 42 Instead, a court will intervene if it finds an administrative process was unfair in light of all the circumstances. This broadquestion, which encompasses the existence of a duty, analysis of its content and whether it was breached in the circumstances, must beanswered correctly by the reviewing judge (see: G. (T.) v. Nova Scotia (Minister of Community Services), supra, at ¶8; Bowater MerseyPaper Co. v. C.E.P., Local 141, 2010 NSCA 19 (N.S. C.A.), ¶28; M. (N.N.) v. Nova Scotia (Minister of Community Services), 2008NSCA 69 (N.S. C.A.), ¶40; and Kelly v.

Nova Scotia Police Commission, 2006 NSCA 27 (N.S. C.A.), ¶21-33. [My bolding added] [110] I therefore disagree with HRM in its Brief at para. 29, and following, when it states: It is respectfully submitted that the jurisprudence has been migrating towards adopting reasonableness as the overarching standard ofreview of an administrative decision as a whole – not just on the substance of the decision. In… Vavilov… at paragraph 76, the courtnoted that the duty of procedural fairness in a given case will impact how a court conducts reasonableness review.

Essentially, if thedecision viewed in its entirety is reasonable it stands, if it is unreasonable, it is set aside… It is respectfully submitted that specificcompetency issues such as legality and procedural sufficiency, are only amongst the many factors to be considered in whether theprocess they are part of leads to a decision that is reasonable.

The question becomes more one of materiality of the role played in thedecision outcome – i.e., is an element of procedural unfairness or illegality, so material as to render the decision as a whole unreasonable.This approach seems to flow from the decision in Jono Developments Ltd. v North End Community Health Assn. [citing paragraphs 107-112] … (para. 33) In the present case Dalhousie is arguing that the decision of Council should be quashed on the basis of the allegedbreaches of procedural fairness in the HAC process.

However, as the decision of Council is arrived at via hearing de novo, the allegedunfairness in the HAC processes may lack sufficient materiality to render the ultimate decision by Council unreasonable. [and in

Part III– Issues paras. 34-5] … From HRM’s perspective, preliminary issues forming part of this determination include… Was the processreasonable – i.e., procedurally sufficient in material respects?

Was the decision to register the house as a municipal Heritage Propertyreasonable? [My bolding and underlining added] [111] Although the HAC does not make a “decision” per se that can be judicially reviewed, its process does constitute asignificant step in the Heritage Property designation/registration process where owners do not consent to the designation, andtherefore it is inappropriate to refer to HRM Council’s decision/process as de novo if that suggests the HRM Council’s decision isdisconnected from or unaffected by the pre-HAC and HAC processes in judicial reviews of the present nature. [112] I find helpful, in resolving this issue, the reasons in Halifax (Regional Municipality), v.

Tarrant, 2019 NSCA 27, where thequestion was: “did the [reviewing] judge commit an appealable error by ruling the [HRM] Council had breached the duty of proceduralfairness”?[41] Tarrant, supra, was most recently cited by Justice Sidnell in her reasons from Westcan Recyclers Ltd. v Calgary (City),2023 ABKB 442: Duty of fairness applicable to the passage of the Closure By-law 128 In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, [Baker cited toCanLII] a mother with Canadian-born dependent children, who was ordered to be deported, sought a waiver of the requirement to make apermanent residence application from outside Canada.

A senior immigration officer replied to her request by letter stating, withoutreasons, that there was insufficient humanitarian and compassionate reasons to grant a waiver. The Supreme Court of Canada consideredwhether the principles of procedural fairness were violated and, L'Heureux-Dubé J, for the majority, found that a duty of proceduralfairness applies to decisions that affect the rights, privileges, or interests of an individual: Baker, at para 20. 129 The existence of a duty of fairness does not determine the requirements of that duty.

Procedural fairness is eminently variable, andits content is to be decided in the specific context of each case: Baker, at para 21. 130 Where participatory rights are at issue, administrative decisions are to be made using a fair and open procedure, appropriate tothe decision being made in its statutory, institutional, and social context.

There must be an opportunity for those affected by the decisionto put forward their views and evidence and have that considered by the decision-maker: Baker, at para 22. 131 There are five non-exhaustive factors relevant to determining what is required by the common law duty of proceduralfairness: Baker, at paras 23 to 28. These were applied in Halifax (Regional Municipality) v. Tarrant, 2019 NSCA 27, at para. 30,in the context of judicial review of a municipal By-law.

These five factors were also summarized in Vavilov, at para 77: (1) the nature of the decision being made, and the process followed in making it; (2) the nature of the statutory scheme;

(3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself. 132 To determine the duty of fairness applicable to the Closure By-law, I will consider the five; non-exclusive Baker factors. [113] Justice Fichaud stated in Tarrant: 23 Consequently, this Court is to focus on procedural fairness. In my respectful view, the judge's reasons erroneously applied thoseprinciples. I say this for the following reasons. 24 Kelly v.

Nova Scotia Police Commission [sometimes cited as Burt v. Kelly], 2006 NSCA 27 (N.S. C.A.), is the leading decision inthis Province on the approach to procedural fairness. Justice Cromwell said: [20] Given that the focus was on the manner in which the decision was made rather than on any particular ruling or decision made bythe Board, judicial review in this case ought to have proceeded in two steps. The first addresses the content of the Board's duty offairness and the second whether the Board breached that duty.

In my respectful view, the judge did not adequately consider the firstof these steps. [21] The first step — determining the content of the tribunal's duty of fairness — must pay careful attention to the context of theparticular proceeding and show appropriate deference to the tribunal's discretion to set up its own procedures. The second step— assessing whether the Board lived up to its duty — assesses whether the tribunal met the standard of fairness defined at the firststep. The court is to intervene if of the opinion the tribunal's procedures were unfair. In that sense, the court reviews forcorrectness.

But this review must be conducted in light of the standard established at the first step and not simply by comparingthe tribunal's procedure with the court's own views about what an appropriate procedure would have been. Fairness is often inthe eye of the beholder and the tribunal's perspective and the whole context of the proceeding should be taken into account.

Courtprocedures are not necessarily the gold standard for this review. [My bolding added] [114] From Jono Developments Ltd., supra, per Justice Farrar for himself and Justice Bryson, we find the following statements aboutthe duties of reviewing courts (some citations omitted): Issue #1 Did the reviewing judge err in law in finding that HRM breached a duty of fairness to the Community Groups? Standard of Review 40 This issue addresses the reviewing judge's substantive findings on the judicial review.

The appropriate approach for a court ofappeal to take when reviewing the lower court's decision in a judicial review was addressed by the Supreme Court of Canada in Agrairav. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.): 45 The first issue in this appeal concerns the standard of review applicable to the Minister's decision.

But, before I discuss theappropriate standard of review, it will be helpful to consider once more the interplay between (1) the appellate standards of correctnessand palpable and overriding error and (2) the administrative law standards of correctness and reasonableness. These standards should notbe confused with one another in an appeal to a court of appeal from a judgment of a superior court on an application for judicial reviewof an administrative decision. The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v.

Canada (RevenueAgency), 2009 FCA 23, 386 N.R. 212 (F.C.A.), at para. 18: Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of anapplication for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriatestandard of review and applied it correctly. The appellate court is not restricted to asking whether the first-level court committed palpableand overriding error in its application of the appropriate standard. 46 In Merck Frosst Canada Ltée c.

Canada (Ministre de la Santé), 2012 SCC 3, [2012] 1 S.C.R. 23 (S.C.C.), at para. 247, Deschamps J.aptly described this process as "'step[ping] into the shoes' of the lower court" such that the "appellate court's focus is, in effect, on theadministrative decision" (emphasis deleted). 47 The issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of reviewand apply it properly? 41 The reviewing judge correctly identified the principle that no standard of review analysis governs judicial review, wherethe complaint is based upon a denial of natural justice or procedural fairness. … 42 Instead, a court will intervene if it finds an administrative process was unfair in light of all the circumstances.

This broadquestion, which encompasses the existence of a duty, analysis of its content and whether it was breached in the circumstances,must be answered correctly by the reviewing judge … Existence of a duty of fairness 43 The reviewing judge embarked on a duty of fairness content analysis following Baker v. Canada (Minister of Citizenship &Immigration), (SCC), [1999] 2 S.C.R. 817 (S.C.C.) before assessing the threshold issue of whether a duty was owedat all.

This omission by the reviewing judge is of little consequence as, for the reasons that follow, I am satisfied that HRM owed a dutyof fairness to the Community Groups.

44 In Congrégation des Témoins de Jéhovah de St-Jérôme-Lafontaine c. Lafontaine (Municipalité), 2004 SCC 48 (S.C.C.), theSupreme Court of Canada stated: 3 A public body like a municipality is bound by a duty of procedural fairness when it makes an administrative decision affectingindividual rights, privileges or interests: … 45 The first requirement is that the decision be 'administrative,' as opposed to 'legislative'. 46 Justice Oland in Potter v. Halifax Regional School Board, 2002 NSCA 88 (N.S. C.A.) provides a helpful explanation of thedistinction: [39] [...] I have found the following passage from S.A.

De Smith's text, Judicial Review of Administrative Action, [3rd ed.], 1973London: Stevens at p. 60 on the distinction between administrative and legislative acts helpful for my analysis: The distinction between legislative and administrative acts is usually expressed as being a distinction between the general and theparticular.

A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases;an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specificdirection, and the application of a general rule to a particular case in accordance with the requirements of policy or expediencyor administrative practice. [40] The classification of

an act as legislative or administrative is not always easily done. There is a great diversity of administrativedecision-making with decision-makers ranging from those primarily adjudicative in function to those that deal with purelylegislative and policy matters: see Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623, [1992] S.C.J. No. 21 at para 27.

Where a particular decision-making power falls on thiscontinuum is a consideration in determining the application and extent of any duty of fairness. [...] I agree with Brown and Evansthat those decisions closer to the "legislative and general" end of the spectrum usually have two characteristics: generality (thepower is of "general application and when exercised will not be directed at a particular person") and a broad policy orientation in thatthe decision creates norms rather than decides on their application to particular situations: see D. Brown & J.

Evans, JudicialReview of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998) vol. 2 at para 7:2330. In my view, whenthe Board decides to close a specific school or specific schools, it is applying, among other things, policy and general considerations butto particular situations.

Such decisions are not, in my view, so close to the legislative and general end of the spectrum as to forecloseentirely any duty to act fairly. [Emphasis added] 47 Similarly, the decision to sell the surplus school is a decision related to a particular situation and is not so close to the legislativeend of the spectrum to preclude a duty of fairness. 48 Further, it has been recognized that public interest may give rise to a duty of fairness if an applicant has (

i) a genuine interest in thematter, (ii) the issue is justiciable, (iii) there is a serious issue to the tried and (iv) there is no other reasonable and effective manner forthe issue to be resolved (see Donald Brown & John Evans, Judicial Review of Administrative Action in Canada, (loose-leaf (updatedMay 2013) (Toronto: Canvasback, 1998) at 4-44 and 7-54). [My bolding added] (

b) HRM owes a duty of fairness to Dalhousie [115] The first question I must address is whether a duty of fairness exists at the HAC and/or HRM Council levels (and whether theprocess at each level is “legislative” or “administrative” in nature).

If so, I will go on to assess the limits of the content of that duty offairness. [116] I am satisfied that collectively viewed, HRM’s “Heritage Property” processes involve HRM “[making] an administrative decisionaffecting individual rights, privileges, or interests” [Jono, at paras. 45-46].[42] [117] The nature of the statutorily sequential processes of the HAC and HRM Council are “administrative”, and given the context andinterests involved, a different duty of fairness exists at both levels, which is owed to Dalhousie in this case.[43] (

c) The sources of the content of the duty of fairness [118] As the materiality of the “rights, privileges or interests” that are at risk of interference by the State increases, generally speaking,so will the minimum acceptable content of the duty of fairness increase.

As the Supreme Court noted in Baker, supra, at paras 21-27: “The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances.As [Justice L’Heureux-Dubé] wrote in Knight … ‘the concept of procedural fairness is eminently variable and its content is to be decidedin the specific context of each case.’ All of the circumstances must be considered in order to determine the content of the duty ofprocedural fairness … it is helpful to review the criteria that should be used in determining what procedural rights the duty offairness requires in a given set of circumstances. … I emphasize that underlying all these factors is the notion that the purpose of theparticipatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using afair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with anopportunity for those affected by the decision to put forward their views and evidence fully and have them considered by thedecision-maker.

Several factors have been recognized in the jurisprudence as relevant to determining what is required by thecommon law duty of procedural fairness in a given set of circumstances. … the nature of the decision being made … nature of thestatutory scheme … importance of the decision to the individual … the legitimate expectations of the person challenging the decision …important weight must be given to the choice of procedures made by the agency itself and its institutional constraints …”. [My bolding added]

[ 119 ] The non-exhaustive five Baker factors are a good starting point:

a) the nature of the decision being made, and the process followed in making it;

b) the nature of the statutory scheme;

c) the importance of the decision to the individual or individuals affected;

d) the legitimate expectations of the person challenging the decision; and

e) the choices of procedure made by the administrative decision maker itself. [ 120 ] Next, I will set out some aspects of the statutory scheme, relevant to the process for designating properties in HRM to be municipal Heritage Properties. i. The legislative provisions

a) HRM By-law H-200 [ 121 ] Municipal Heritage Property designations are ultimately decided by HRM Council. [ 122 ] However, all applications are first considered by the Heritage Advisory Committee [“HAC”]. [ 123 ] The “powers” of a Heritage Advisory Committee are expressly set out in

section 13 of the HPA . That

section does include: “(

d) any other matters conducive to the effective carrying out of the intent and purpose of this Act.” Therefore, it would seem a reasonable conclusion, particularly in light of the approval of the Minister of Municipal Affairs of the By-law, that the legislature intended this “catchall” provision to supplement the HAC’s broad powers to conduct its business; subject to section 5(3) of By-law H 200 – see also

section 117 of Administrative Order One. [ 124 ] The HAC must meet at least once a month [section 5], and consists of two HRM Councillors and ten other members (per

section 3 of By-law H-200: “ 10 residents of the Region , who have applied to the Council to act as members and have expressed an interest in heritage preservation ”.) [44] [ 125 ] The HAC is tasked pursuant to its powers under

section 4 of By-law H-200 “within the time limits prescribed by Council or the Act, [to] advise the Region respecting: (

a) the inclusion of buildings , public building interiors, streetscapes, cultural landscapes or areas in the Registry; (b)… (

c) applications to substantially alter the external appearance of or demolish a municipal Heritage Property ; … (

g) building or other regulations that affect the attainment of the intent and purpose of the Act; … (

i) the use, administration, and management of registered heritage properties owned by the Region; … (

l) the deregistration of heritage properties; (

m) the acquisition of heritage properties; (

n) financial incentives to heritage properties; (

o) the amendment of evaluation criteria, guidelines and standards for municipal heritage properties; (

p) recommendations for enforcement in the event of noncompliance; and (

q) any other matters conducive to the effective carrying out of the intent and purpose of the Act. [ 126 ] Under “Procedure”, section 5(3) of the By-law states: The procedure of the Committee shall be governed, where not inconsistent with the Act or this By-law, by the rules of Administrative Order One of the Region.

b) The Provincial Legislation [ 127 ] The provincial statutory framework that gives the municipality its authority, which in turn gives the HAC its authority, includes the HRM Charter , SNS, 2008, c. 39 , [“the Charter ”] and the Heritage Property Act , RSNS 1989, c. 199 [“ HPA ”]. [ 128 ] The HPA provides for both Provincial and Municipal Heritage Property registries, but does distinguish between the two processes in some respects.

[ 129 ] As HRM points out at paragraph 62 of its Brief: HPA s. 7(3) (

e) provides only for ‘ an invitation to the registered owner to comment on the proposed [Heritage Property] registration” to the Minister .’ The municipal process in section 14(3)(

e) provides for ‘notification of the right of the owner to be heard and of the time and place for the hearing’ to the municipal council. [45] [ 130 ] In my opinion, section 14(3)(

e) should be interpreted as intending that a municipal property owner has a robust and meaningful “right to be heard ” at a HRM Council hearing. A ten minute oral presentation, in addition to written submissions, will not always be sufficient if this “right to be heard” is to be meaningful . [ 131 ] Before Council the property owner arguably has its only true opportunity to persuade HRM to not register the property as a municipal Heritage Property. However, as in the present circumstances, “the ground is prepared” at the HAC level, for the crucial hearing at Council.

For example, the staff recommended ranges cumulating to 53-72 (low to high range) points, were apparently deferred to by the HAC members – who gave a 64 overall score in comparison to the 62.5 points average of the staff recommend ranges. Having only received HRM Heritage staff’s Report to HAC on July 14, 2022, which the HAC “scored” on July 15, 2022, as 64 out of a possible 100 points, Dalhousie was severely hamstrung in making meaningful arguments as to why the staff Report’s qualitative comments and, therefore, scoring recommendations were inaccurate, unreliable, and unjustified.

This is an illustration of how, although the HAC is not a decision-maker, the

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