2013 NBCA 9, 2013 NBCA 9

COURT OF APPEAL OF NEW BRUNSWICK 109-12-CA PROVINCE OF NEW BRUNSWICK, as represented by THE MINISTER OF TRANSPORTATION AND INFRASTRUCTURE AND THE MINISTER OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT (Respondent) APPELLANT PROVINCE DU NOUVEAU-BRUNSWICK, représentée par LE MINISTRE DES TRANSPORTS ET DE L’INFRASTRUCTURE et par LE MINISTRE DE L’ÉDUCATION ET DU DÉVELOPPEMENT DE LA PETITE ENFANCE , (Intimé

e) APPELANTE - and - - et - MARK LEBLANC, DEBORA JEFFERY, ROY MacMULLIN and SCOTT AGNEW (Applicants) RESPONDENTS MARK LEBLANC, DEBORA JEFFERY, ROY MacMULLIN et SCOTT AGNEW , (Requérants) INTIMÉS Province of New Brunswick v. LeBlanc, Jeffery, MacMullin and Agnew, 2013 NBCA 9 Province du Nouveau-Brunswick c.

LeBlanc, Jeffery, MacMullin et Agnew, 2013 NBCA 9 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: August 13, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 13 août 2012 History of case: Decision under appeal: N/A Preliminary or incidental proceedings: [2012] N.B.J. No. 296 (QL) Historique de la cause : Décision frappée d’appel : s.o.

Procédures préliminaires ou accessoires : [2012] A.N.-B. n o 296 (QL) Appeal heard: October 10, 2012 Appel entendu : Le 10 octobre 2012 Judgment rendered: January 24, 2013 Jugement rendu : Le 24 janvier 2013

Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at hearing: For the appellant: Richard A. Williams and Maya Hamou For the respondents: Alison J. Ménard Avocats à l’audience : Pour l’appelante : Richard A. Williams et Maya Hamou Pour les intimés : Alison J. Ménard THE COURT The appeal is allowed without costs. The judgment of the Court was delivered by BELL J.A. I.

Introduction and brief overview of the facts [ 1 ] In the fall of 2010, the Province of New Brunswick concluded the Moncton High School, located at the corner of Mountain Road and Church Street in Moncton, New Brunswick, required extensive renovations in order to continue its use as a high school. As a result, the Province decided to construct a new facility and close the existing one. On July 5, 2011, after extensive consultation, the Minister of Education and Early Childhood Development announced the new high school facility would be located on Elmwood Drive in Moncton. [ 2 ]

Section 45 of the Education Act , S.N.B. 1997, c. E-1.12, requires the District Education Council provide input on the “general location” of a new school before the Minister makes his site selection. On or about March 21, 2012, the respondents learned, through media reports, that the District Education Council Chairperson claimed he had no input into the Province’s decision regarding the location of the new school.

On June 14, 2012, approximately 11 months after the Minister’s announcement of July 5, 2011, the respondents filed a Notice of Application seeking judicial review of the decision to locate the new school facility on Elmwood Drive, and requesting, among other things, that the decision be “removed into [the Court of Queen’s Bench] and quashed”.

The respondents, aware that Rule 69.03 of the Rules of Court provides for a three-month limitation period within which to seek judicial review, contended before the motion judge, and on appeal, that the limitation period started to run on March 21, 2012, the date they had reason to believe the District Education Council had not fulfilled its requirements under s. 45 of the Act . Consistent with their position that the limitation period commenced on March 21, 2012 rather than July 5, 2011, the respondents did not request an extension of time within which to file their Notice of Application.

[ 3 ] In the court below, the Province sought an order that the Notice of Application be summarily dismissed since it was not filed within three months of the Minister’s decision of July 5, 2011. The Province contended the only possible decision to be reviewed is that of July 5, and that the respondents cannot extend the limitation date by investigating, gathering new information, or obtaining legal advice.

With respect to whether the motion judge should grant an extension, the Province contended he had no authority to do so because: (1) no request had been made; (2) it (the Province) was substantially prejudiced by the delay in bringing the application; (3) the respondents failed to provide an adequate explanation for their delay; and (4) there were no exceptional circumstances which would justify the extension. [ 4 ] The motion judge dismissed the Province’s motion for

summary dismissal. It is unclear whether he extended the time for filing or whether he concluded no extension was necessary because of the new information obtained in and around March 21, 2012. The Province appealed. On October 10, 2012 we allowed the appeal with reasons to follow. These are my reasons. II. Issues [ 5 ] The Province appeals based upon four grounds, two of which are, in my view, determinative of the issue. They are that the motion judge erred in law by: (

a) disregarding uncontested evidence relating to substantial prejudice to the Province; and (

b) extending the time for filing in the absence of exceptional circumstances. III. Analysis A. Decision in the Court below [ 6 ] In order to properly frame my analysis, I find it necessary to quote extensively from the motion judge’s decision. I do this for two reasons. First, in fairness to the parties and the motion judge, it is useful to set out his perspective.

Second, since I do not understand precisely how he arrived at his decision, I prefer to quote him rather than attempt to paraphrase his conclusions. [ 7 ] In the opening paragraphs of his decision, the motion judge states: The Government and Minister made it known to the public in general and the District Education Council as early as July, 2011 that the new high school that the Government had already resolved earlier to build would be built at the Royal Oaks development, at the extension of Elmwood Drive, right at the limit. […] […]

The Court, based on the record, the motion record, is satisfied that the four Applicants, with respect to the application that was filed on June the 14 th , 2012, that the Applicants were aware since July of 2011 of the Minister’s decision. […] So, it’s eight months later, June the 14th, 2012, that the application was filed. In that application that was filed on behalf of the four Applicants […] the Applicants don’t seek an extension of time. They don’t refer to Rule 69.03. Essentially, as far as the application itself is concerned, it’s like they assume that they will be heard on the merits of the application.

Now the Respondent in that application, the Province of New Brunswick, has just recently filed its own motion asking that the Court rule on the admissibility [ sic ] of that application considering that the Applicants have not sought an extension of time and considering that the motion was filed 11 months after the Minister’s disputed decision or impugned decision. [pp. 212-214] [Emphasis added.] [ 8 ] To this point in his decision, the motion judge appears to conclude the decision was made in July, 2011 and notes the Applicants’ failure to request an extension.

He does not, however, conduct any analysis about whether he has the authority, on his own motion, to extend the time limit. He then directs his attention to Rule 69.03 as it deals with extensions of time and states: Now rule 69.03 grants the Court a discretion but it’s not an automatic discretion, it’s [a] conditional discretion. So not all the analysis under 69.03 deals with court discretion.

There is a factual appreciation, there is a factual basis that needs to be established before the Court will exercise its discretion. [p. 214] [ 9 ] The “factual appreciation” referred to by the motion judge relates to the issue of whether or not the granting of an extension would cause “substantial prejudice” to anyone. After quoting Rule 69.03, he states: So before the Court [can] find that it is vested with a discretion, the Court needs to exclude the possibility that in granting an extension, it will cause substantial prejudice to anyone.

If that element is not satisfied, the Court does not even have the discretion. So that issue was resolved this morning. […] […] the Court did not even have to listen to Ms. Ménard because the case [substantial prejudice] was not made on the preponderance of the evidence. Based on the material, the Court was not satisfied that granting an extension would cause substantial prejudice to anyone. […]

Now once the Court has declared that the case was not made that a substantial prejudice to anyone would be caused if the Court were to consider granting an extension, then the Court, okay, accordingly then the Court finds that it has the discretion given under 69.03. [pp. 216-217] [Emphasis added.] [ 10 ] At this point in his reasons, it appears the motion judge concludes he has the jurisdiction to grant an extension of time without a request to do so. It also appears he is about to embark upon his analysis as to whether or not he will exercise that discretion.

However, before making any conclusion in that regard, he abandons that analysis and moves to the respondents’ contention that the three-month limitation date only started to run on March 21, 2012, the date at which the respondents acquired some hearsay evidence, published in a newspaper, that perhaps the District Education Council had not exercised its authority under s. 45 of the Education Act .

On this issue, the motion judge framed the question as follows: Is it the decision to choose Royal Oaks Development as the site for the new high school that is disputed or in the mind of the four Applicants, it’s the decision to choose the site of the Royal Oaks without getting prior recommendation from the District Education Council.

That is the decision that is disputed and that is the decision, in the face or from the standpoint of the Applicants, that decision that they are disputing, that the Minister would have chosen the Royal Oaks site without getting the recommendation of the District Education Council, they were made aware of that decision in the latter part of March, 2012, not in July, 2011. […] The four Applicants, according to the material that is before the Court, had no reason to feel aggrieved before they had reasons to believe that the District Education Council had not been consulted in the choice of the site. [pp. 225 and 227] [Emphasis added.] [ 11 ] In his concluding paragraphs, the motion judge revisits the issue regarding the extension of time, but appears to resolve the matter based upon a conclusion that the three-month limitation period started to run on March 21, 2012.

He states: But in considering the explanation why the Applicants have waited until June 14 th , 2012, the Court accepts that in the mind of the Applicants, they could only consider that they had the right or the possibility to challenge the Minister’s decision as the decision or the circumstances around the decision were communicated to them in March of 2012, the details of that decision, that apparently it was made without obtaining a recommendation of the District Education Council as referenced to in section 45(3) of the Education Act . […] So what is meant by “general location”, well that is something that should be argued on the merits of the application, depending on how the facts will come out, because we don’t know what the Province has to say about this application.

The Province has not filed its responding documents with respect to the application that is set to be heard on September 7 th , 2012. So these are essentially the reasons why the Court is not satisfied that it should grant the Province’s motion and for the same reasons, the Court indicates that it finds there [are] no reasons to force the four Applicants to file a proposed further amended application or to file a motion to seek an extension of time under 69.03. This would be simply academic. The only purpose, the only effect would be to use paper unnecessarily and add material to a file where

the decision has already been made. [pp. 232-234] [Emphasis added.] [12] Did the motion judge extend the time for bringing the application for judicial review; or, did heconclude no extension was necessary because the “real” decision under review was communicated to the respondents on March 21,2012? I do not know the answer to that question. Unfortunately, the answer cannot be gleaned from the language of the order signed bythe judge following the hearing. He ordered: 1.

The Respondent(s)’s [sic] Notice of Motion to dismiss the Notice of Application and the various remedies sought by theRespondents therein are dismissed. 2. The Applicants are not required to file a Notice of Motion or to otherwise amend their Application to request an extension of timeto file the Notice of Application. The Amended Notice of Application shall proceed to be heard on the merits. B. Date of the decision under review [13] The respondents contend the limitation period under Rule 69.03 only begins to run whensomeone finds a reason to challenge the validity of a decision.

The law does not support any such assertion. In The Minister of MunicipalAffairs v. Hache (1969), (NB CA), 1 N.B.R. (2d) 67, [1968] N.B.J. No. 8 (N.B.S.C.) (A.D.) (QL), this Courtconcluded the 30-day time limit for an appeal under the Assessment Act, S.N.B. 1965, c.110, begins to run when a decision of theAppeals Tribunal has been pronounced, either at a hearing or by notification to the parties. Hache was followed in Booth v. PrinceEdward Island (Regulatory and Appeals Commission), 2004 PESCAD 18, [2004] P.E.I.J. No. 72 (QL).

In Booth the appellants, whowished to dispute the issuance of a building permit, contended the limitation date for review of the decision only commenced once theybecame aware the permit had been issued in violation of the zoning regulation. Webber J.A., for the Court, stated: In essence the appellants argue that the appeal period only begins to run when someone can find a reason to challenge the validity of thedecision. Public policy reasons would not support such an

interpretation of the statute. If that

interpretation were allowed, buildingpermits issued years ago, and acted upon, could be challenged because someone just found an error – or thinks they have found an error– in connection with the issuance of the permit. [para. 14] Furthermore, in agreeing with the court in Hache that the appeal period begins to run when an appellant has been notified of the decision,Webber J.A. clarified that such notice could be either specific or general, so long as “the public can become aware of the decision” (atpara. 21).

Using this approach, the date at which the limitation period starts to run is constant for all members of the targeted communityand remains within a decision-maker’s control. [14] The language of Rule 69.03 is clear. It states that the limitation period starts to run from the“date of the […] decision”. Similar language was used in Rule 56.06 of the former Nova Scotia Civil Procedure Rules (1972). InCentral Halifax Community Association v. Halifax (Regional Municipality), 2007 NSCA 39, [2007] N.S.J. No. 135 (QL), leave to appealrefused, [2007] S.C.C.A.

No. 279, the issue squarely before the Court was whether the six-month limitation period set out in the Rulecommenced on the date the decision was made, or on the date the aggrieved party received notice of the decision. Unfortunately, thedecision had been made behind closed doors and communicated to the applicant several weeks later.

Regardless, MacDonald, C.J.N.S.,for a unanimous Court, observed that the rule’s clear language, the extraordinary nature of the judicial review remedy, the lengthylimitation period and the inherent jurisdiction of the Court to prevent abuses, all militated in favour of the municipality’s argument thatthe limitation period commenced on the date of the decision. In commenting upon the need for stability in public administration, theChief Justice observed: Effective public decision-making by its very nature commands precision and clarity.

Public decisions that are tentative or incompletewill lead to an unreliable public administration and a confused public. Thus to achieve the required stability, finality in the publicdecision-making process is crucial. Both government officials and citizens alike need to know precisely when and how such decisionscan be subject to court interference. […] [para. 25]

While not endorsing MacDonald, C.J.N.S.’s conclusion that a limitation date starts to run from the date a “closed door” decision is made, absent notification to the affected parties or public availability, I do agree with his observation that parties require certainty as to the date by which government decisions may be reviewed.

Deadlines cannot be dependent upon when an aggrieved person says he or she learned of a reason to challenge a decision. [ 15 ] One of the reasons for the existence of limitation periods is to permit aggrieved parties the opportunity to investigate, make enquiries and seek advice (legal or otherwise) in order to determine whether judicial intervention is warranted. The decision the respondents sought to have quashed was undoubtedly the Minister’s decision of July 5, 2011 to locate the new school facility on Elmwood Drive.

The comments attributed to the Chairman of the District Education Council on March 21, 2012, even if proven to be true and to bind the DEC, did not alter the timing of the Minister’s decision. The new information, if proven, would become one factor, among many, for a motion judge to consider in the eventual exercise of his or her discretion on the judicial review application. [ 16 ] In the event the motion judge concluded the limitation period commenced on March 21, 2012, I am of the view he erred.

It follows that the respondents required an extension of time in order to proceed with their application for judicial review. C. Extension of time [ 17 ] Rule 69.03 provides as follows: When Proceedings Commenced Subject to any Act, an application under this rule shall be commenced within 3 months from the date of the order, conviction, commitment, warrant, decision, award or refusal to act which is complained of but the court may, (

a) on appropriate terms, (

b) either before or after the expiration of the time limited herein, and (

c) if a delay will not cause substantial prejudice to anyone, extend the time for commencing the application. Quand introduire l’instance

Sous réserve de toute disposition d’une loi, toute requête formulée en application de la présente règle doit être introduite dans les 3 mois de la date de l’ordonnance, de la déclaration de culpabilité, de l’incarcération, du mandat, de la décision, de la sentence arbitrale ou du défaut d’exécution contesté. La cour peut cependant,

a) aux conditions qui conviennent,

b) soit avant soit après l’expiration du délai accordé dans les présentes et

c) si le retard ne cause à personne un préjudice sérieux, prolonger le délai pour l’introduction de la requête.

[18] There are two factors an application judge must consider before extending the time forcommencing an application under Rule 69.03. The first is found in the Rule and requires the Court to be satisfied the extension will notcause “substantial prejudice to anyone”. The second results from the common law development of the jurisprudence and requires theaggrieved party demonstrate “exceptional circumstances” caused a party to miss the limitation period.

(1) Substantial Prejudice [19] At the hearing below, the Province led evidence it had expended approximately $2,000,000 onthe Royal Oaks site. That amount did not include the in-house labour and supply costs related to identifying the need for a new facility,the space requirements for the new facility, planning its construction and site selection. The Province also led evidence regarding thedelays that would be encountered if the application for judicial review were allowed to proceed, and the consequent disruption to thestudents and staff of Moncton High School.

The motion judge, without any evidence to support his position, then embarked upon ananalysis as to why the Province had failed to establish substantial prejudice. That analysis included speculation regarding the potentialsale of the recently acquired property, the value of the improvements to the property, and the potential value of the stumpage for thewood fibre removed from the property. [20] The motion judge’s conclusion there was no substantial prejudice to anyone is, without doubt, afinding of fact.

This Court cannot interfere with such a finding unless it is the product of both palpable and overriding error (see Housenv. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, Doiron v.Haché 2005 NBCA 75, 290 N.B.R. (2d) 79, and D.L.M. v. J.A.M., 2008 NBCA 2, 326 N.B.R. (2d) 111). I am of the opinion the motionjudge’s conclusion there was no substantial prejudice to anyone constitutes a “palpable” error.

I base this opinion upon the followingfactors: (1) he ignored the uncontested evidence offered by the Province; (2) he based his conclusion upon speculation; and (3) the Rulerequires a determination of whether there was prejudice to “anyone”. The motion judge appears to have limited his analysis to whetherthere was prejudice to the Province.

He failed to consider the potential prejudice to students, teachers, other employees, contractors andsuppliers involved in the project. [21] Having concluded the motion judge made a palpable error regarding a finding of fact, I mustthen consider whether that error is “overriding” in the sense that it “discredits the result”: H.L. v. Canada (Attorney General) at para. 69.See also: Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254, [1996] S.C.J. No. 15 (QL); Doiron v. Haché; D.L.M. v.J.A.M; C.A. v. A.A., 2011 NBCA 109, 381 N.B.R. (2d) 199; and Construction B.H.M. Limitée and Brideau v.

Caisse populaire deShippagan Limitée, 2012 NBCA 30, 386 N.B.R. (2d) 373. This analysis is very simple. Had the motion judge concluded that anextension of time would result in substantial prejudice to someone, he had no jurisdiction to extend the time period. The error regardingsubstantial prejudice was therefore not only overriding, it was determinative. For that reason alone, I would allow the appeal. However,I wish to comment briefly upon those circumstances, absent issues of substantial prejudice, which should inform decisions regardingrequests for extensions of time under Rule 69.03.

(2) Exceptional circumstances [22] In Smith v. Human Rights Commission (N.B.) et al. (1998), (NB CA), 217N.B.R. (2d) 336, [1999] N.B.J. No. 392 (C.A.) (QL), leave to appeal refused, [1999] S.C.C.A. No. 543 (QL), the applicant sought leaveto extend the time within which to bring a judicial review application.

Drapeau, J.A. (as he then was), in dismissing the application,stated in part: […] three months is, except in the most exceptional circumstances, more than enough time for an aggrieved party to commence anApplication for judicial review. […] [para. 25] [23] While this Court has not had occasion to define “exceptional circumstances” for purposes ofapplying Rule 69.03, related jurisprudence from New Brunswick and elsewhere provides some guidance. In R. v. Guitare, [2001] N.B.R.(2d) (Supp.) No. 61, [2001] N.B.J.

No. 242 (C.A.) (QL), Larlee J.A. heard a motion to extend the time for filing an appeal from aconviction and sentence pursuant to s. 678(2) of the Criminal Code and Rule 63.26 of the Rules of Court. She observed that an extensioncould only be granted in “exceptional circumstances” where there is concern that an injustice may have occurred. From the time of hisconviction and sentence to September 17, 1997, Mr. Guitare was regularly taking anti-psychotic medication. He filed his Notice ofAppeal on August 25, 1998.

While the time for filing an appeal expired before September 17, 1997, Larlee J.A. appears to acceptMr. Guitare’s explanation for the delay until that time, namely, that the anti-psychotic medication he was taking prevented him fromfiling his appeal. However, between September 17, 1997, the date he ceased taking the medication, and August 25, 1998, the date hefiled the Notice of Appeal, Mr. Guitare had no valid excuse for not filing his appeal. It would appear that a diagnosed medical condition

which prevents one from meeting a limitation date may constitute “exceptional circumstances” which would justify an extension of the limitation period. [ 24 ] In Blue v. Antigonish District School Board , [1990] N.S.J. No. 37 (N.S.S.C.(T.D.)) (QL) Glube, C.J. extended the time period for filing a judicial review application under Nova Scotia Rule 56.06 in circumstances where the applicant attended at the Prothonotary’s Office on the last possible date for filing and was prevented from doing so because of a power outage.

In such circumstances, the Court observed it would be “totally inequitable not to allow the certiorari application to proceed”. No one would seriously dispute that government’s inability to accept documents, for whatever reason, on the last day of the limitation period, should constitute exceptional circumstances for purposes of considering a request for an extension. As a general proposition, I agree with the comments of Reed J. in Chin v. Minister of Employment and Immigration , [1993] F.C.J.

No. 1033 (T.D.) (QL) , wherein she stated: “[w]hen an application for an extension of time comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event” (at para. 8). [ 25 ] In the present case, the “exceptional circumstances” advanced by the respondents included observations that they were busy lobbying politicians, holding and/or attending meetings, and, in one case, pre-occupied with personal matters.

Clearly, none of those reasons constitute exceptional circumstances as contemplated by the Court in Smith . Had there been no evidence of substantial prejudice, I would allow the appeal on the basis that no exceptional circumstances exist which would have permitted an extension of the time for filing the application for judicial review. IV. Conclusion [ 26 ] It is for these reasons that I joined with my colleagues and allowed the appeal. Because the Province does not request costs, I would make no order in that regard. ________________________________ B. RICHARD BELL, J.A.

WE CONCUR: ________________________________ M.E.L. LARLEE, J.A. _________________________________ KATHLEEN A. QUIGG, J.A.