LONG HARBOUR HOLDINGS INC. Applicant And: CITY OF ST. JOHN'S Respondent, 2019 NLSC 162

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Long Harbour Holdings Inc. v. St. John's (City) , 2019 NLSC 162 Date : September 13, 2019 Docket : 201901G4607 Between: LONG HARBOUR HOLDINGS INC. Applicant And: CITY OF ST. JOHN'S Respondent Before: Justice David B. Orsborn Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: September 6, 2019

Summary: The St. John’s Local Board of Appeal turned down an appeal by Randy Walsh in respect of a work permit issued by the City of St. John’s to Long Harbour Holdings. Walsh filed an appeal in this Court seeking to set aside the Board’s decision. (That appeal has yet to be heard.) Upon the filing of Walsh’s appeal in this Court, and acting in accordance with its view of the governing regulations, the City issued an order directing Long Harbour to stop work on that part of the project covered by the work permit.

Long Harbour has applied for a declaration that, properly interpreted, the applicable regulation does not require the City to issue a stop work order on the filing of an appeal in this Court. Held : The application was granted. As used in the applicable regulation, the word appeal refers only to appeals to the Local Board of Appeal. Further, if the regulation were to be interpreted as suggested by the City, the regulation would be beyond the regulation-making authority of the City. Appearances:

Philip J. Buckingham Appearing on behalf of the ApplicantLinda S. Bishop, Q.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43; Immeubles Port Louis Ltéev. Lafontaine (Village), (SCC), [1991] 1 S.C.R. 326; 10718 Nfld. Inc. v. St. John’s (City), 2018 NLSC 82, aff’d 2019NLCA 41; Sun Life Assurance Co. of Canada v. St. John’s (City), 2006 NLCA 62. STATUTES CONSIDERED: City of St. John’s, St. John’s Development Regulations (July 2019), see Notice of Approval

(1994) N.Gaz. I, 325 (Urban and Rural Planning Act); Urban and Rural Planning Act, 2000, SNL 2000, c. U-8; Development Regulations, N.L.R.3/01 under the Urban and Rural Planning Act, 2000.

REASONS FOR JUDGMENT Orsborn, J.: INTRODUCTION [1] In the scheme of land development regulation, work on a development is, by law, stayed—stopped—if a regulatory authority’sdecision relating to the development is appealed to a municipal board of appeal. [2] The decision of a board of appeal may be further appealed to this Court. [3] Does the automatic stay—work stoppage—following the institution of an appeal to a board of appeal also apply on the filingof an appeal in this Court? In my view, the answer is no.[1] ISSUES [4] To put the issues more specifically, does the following provision of the St.

John’s Development Regulations (City of St.John’s, St. John’s Development Regulations (July 2019), see Notice of Approval

(1994) N. Gaz. I, 325 (Urban and Rural Planning Act),extend to an appeal to the Supreme Court?

Section 4.3.4: Where an appeal is made, the Development concerned shall not proceed pending a decision of the appeal and the subsequent issue of allrequired permits. [5] Further, in the event that, properly interpreted, the provision does indeed operate to stop work on a development pendingdisposition of an appeal to the court, is the provision then within the regulatory authority of the City of St. John’s? BACKGROUND [6] Long Harbour Holdings Inc. (“Long Harbour”) is engaged in a development project in the Quidi Vidi Village area of the Cityof St. John’s (the “City”).

That project includes repairs and upgrades to a wharf and sewer. [7] On September 28, 2018, the City gave its approval to the work proposed on one area of the site. That approval has not beenchallenged. [8] Approval for work on a second area was given on April 12, 2019, and the necessary work permit issued on April 23, 2019. [9] On May 7, 2019, Randy Walsh, a concerned citizen, appealed the City’s approval and issuance of the April 23, 2019 permit tothe St.

John’s Local Board of Appeal (“Board of Appeal”). [10] As it is required to do by regulation 4.3.4—reproduced above—the City issued a stop work order to Long Harbour. The effectof the order, as a practical matter, was to bring work to a halt on the project as a whole. [11] The Board of Appeal heard the appeal on June 11, 2019, and on June 20, 2019, issued a decision dismissing Walsh’s appeal onthe grounds that the City’s approval of the work in question was reasonable and not contrary to the governing plan and regulations.

[ 12 ] On June 28, 2019, Walsh filed an appeal with this Court as permitted by

section 46 of the Urban and Rural Planning Act, 2000 , SNL 2000, c. U-8 (“ URPA ”)—file 201901G4228. [ 13 ] On July 3, 2019, as a result of the filing of Walsh’s appeal in this Court, the City issued a stop work order for all work on the second area of the site. Again, this had the effect of bringing to a halt all work on the project. [ 14 ] Long Harbour then brought this application for relief, seeking a declaration that

section 4.3.4 of the St. John’s Development Regulations does not extend to appeals to a superior court and for an order directing the City to withdraw the July 3, 2019, stop work order and to issue the appropriate permit as contemplated on April 23, 2019. [ 15 ] As noted above, the requested relief was granted shortly following the hearing. REGULATORY FRAMEWORK [ 16 ] The St. John’s Development Regulations are at the bottom of a hierarchical regulatory structure governing development in the City. They are made pursuant to a mandatory direction in

section 35 of URPA ; the direction enumerates a number of matters that a municipality’s regulations must include. The relevant URPA provision: 35.

(1) A council or regional authority shall, to ensure that land is controlled and used only in accordance with the appropriate plan or scheme, make development regulations … (

l) respecting appeals of decisions to boards. [ 17 ] The limited extent of the direction relating to appeals is apparent. [ 18 ] The St. John’s Development Regulations are subject to the Development Regulations , N.L.R. 3/01 , regulations which are made by the appropriate Minister pursuant to subsection 36(1) of URPA . They apply province-wide. These regulations must be included in regulations passed by a municipal authority such as the City. [ 19 ] The relevant URPA provisions: 36.

(1) The minister shall, as follows, make development regulations that shall be included in the development regulations of councils and regional authorities with respect to (

a) appeals made under the Act; …

(4) Where regulations are made under this

section that are contrary to existing development regulations of a council or regional authority, that council or regional authority shall make the required changes to their regulations to bring them into conformity with the regulations made under this section. [ 20 ] The Development Regulations : 3.

(1) These regulations shall be included in the development regulations of an authority and shall apply to all planning areas.

(2) Where there is a conflict between these regulations and development regulations or other regulations of an authority, these regulations shall apply.

(3) Where another Act of the province provides a right of appeal to the board, these regulations shall apply to that appeal. [ 21 ] Sections 5 - 11 of the Development Regulations address appeals, as required by paragraph 36(1) (

a) of URPA . After addressing issues of notice (

section 5 ), filing requirements (section 6), and registration (section 7), the regulation addresses the cessation of work pending appeal: 8.

(1) Immediately upon notice of the registration of an appeal the appropriate authority shall ensure that any development upon the property that is the subject of the appeal ceases.

(2) Sections 102 and 104 of the Act apply to an authority acting under subsection (1).

(3) Upon receipt of a notification of the registration of an appeal with respect to an order under

section 102 of the Act, an authority shall not carry out work related to the matter being appealed. [ 22 ]

Section 9, 10 and 11 deal with the hearing of the appeal and the requirement that a decision of an appeal board must comply with any applicable municipal plan. [ 23 ] URPA is the governing statute. [ 24 ]

Section 40 of URPA governs the establishment of appeal boards, including local appeal boards in the cities of Corner Brook, St. John’s, and Mount Pearl.

Section 42 provides the right of appeal to these boards and outlines a number of related matters. The section, in part: 42.

(1) A person or an association of persons aggrieved of a decision that, under the regulations, may be appealed, may appeal that decision to the appropriate board where the decision is with respect to (

a) an application to undertake a development; (

b) a revocation of an approval or a permit to undertake a development; (

c) the issuance of a stop work order; and (

d) a decision permitted under this or another Act to be appealed to the board. …

(3) An appeal board shall not make a decision that does not comply with a plan, scheme and development regulations that apply to the matter being appealed. …

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

(11) Notwithstanding subsection (10), where a council, regional authority or authorized administrator may, in its discretion, make a decision, a board shall not make another decision that overrules the discretionary decision. … [ 25 ] URPA provides a stop work provision: 45.

(1) Where an appeal is made under

section 42, the development with respect to the appeal, work related to that development or an order that is under appeal shall not proceed or be carried out, pending a decision of the board. [ 26 ] Finally, URPA provides for a limited right of appeal to this Court: 46.

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

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

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

(4) The court shall either confirm or vacate the order of the board and where vacated the court shall refer the matter back to the board with the opinion of the court as to the error in law or jurisdiction and the board shall deal with the matter in accordance with that opinion.

[ 27 ] The foregoing represents the context in which the St. John’s Development Regulations must be interpreted. As a regulation,

section 4.3.4 is to be interpreted in accordance with the approach set out in Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NFCA 43 , as follows: 19 The starting point for

interpretation of any statute enacted by the legislature of this province is the legislature’s own directive to the courts as found in s. 16 of the

Interpretation Act : Every Act and every regulation and every provision of

an Act or regulation shall be considered remedial and shall receive the liberal construction and

interpretation that best ensures the attainment of the objects of the Act, regulation or provision according to its true meaning. … 22 Instead of mandating some fictionalized search for a collective “legislative intention”, s. 16 directs the court to consider every provision “remedial” and to interpret it so that it “best” ensures the attainment of its “objects” according to its “true” meaning.

This requires a consideration, as an integral part of the interpretive exercise, of the problem or “mischief” to which the legislature directed its legislative act as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court’s general knowledge of the state of the pre-existing law and any information as to the broad social context in which the legislative act occurred, as to what, broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a “true” meaning.

That inevitably requires an examination of more than the bare words of the legislative enactment that is in issue, no matter how clear or unambiguous they may at first blush appear. The surrounding text, the interrelation of other related statutes, the social and legislative context in which the provision was enacted, and other extrinsic aids are all sources to be consulted in this exercise.

Obviously, if the bare words of the relevant provision appear to be straightforward and seem on their face to admit of only one meaning, they may end up controlling the result, but even in such a case, it is not sufficient to stop the interpretive exercise at this “plain” meaning; s. 16 requires that at the very least this plain meaning be given a “reality check” by being tested against other relevant sources of meaning to ensure that there is not some nuance or variation in the normal or apparent meaning that might indicate a different meaning in the particular context under consideration. “True” meaning is not plain meaning; it is a conclusion arrived at by reconciling all the appropriate indicators of meaning that the court is directed to consider. 23 In truth therefore, s. 16 enunciates a principle of harmonization in which the courts are directed, in cases of dispute, to adopt and apply an

interpretation that fairly reconciles the language used in the enactment with the broader objects of the legislation so as to achieve the general goal, or to rectify the mischief, to which the legislative act appears to have been directed. That exercise determines the general ambit of impact of the legislative act and provides the basis for the court to conclude whether the particular fact situation before it should fall inside our outside that ambit. … 26 The process of

interpretation then becomes an exercise in finding appropriate justifications for a fair and reasonable result in the circumstances of the particular case in a way that respects the important values of society within the context of the legislative directive that has been given. … [ 28 ] The St. John’s Development Regulations establish the St. John’s Local Board of Appeal as mandated by subsection 40(2) of URPA .

Section 1.6 of the St. John’s Development Regulations incorporates the Development Regulations as required by subsection 36(1) of URPA . [ 29 ] It is appropriate to set out in full the St. John’s Development Regulations provisions relating to the local appeal board. These provisions provide the immediate context for the

interpretation of the word appeal as used in

section 4.3.4: 4.3 ST. JOHN'S LOCAL BOARD OF APPEAL 4.3.1 Appointment of Appeal Board

(1) Council shall appoint five (5) persons to constitute the Appeal Board.

(2) Council shall not appoint elected or appointed officials of the City to be members of the Appeal Board.

(3) Effective January 1, 2001, persons appointed after January 1, 2001 to the St. John’s Local Board of Appeal are appointed for a term of three (3) years.

(4) No Appeal Board member may be appointed for more than two (2) consecutive terms.

(5) Any vacancies which may occur in the membership of the Appeal Board shall be filled for the rest of the vacating member's term by a person appointed by Council.

(6) The Appeal Board shall be presided over by a chairperson appointed from among its members by Council, or, in the absence of the chairperson, such member as the members present shall among themselves appoint.

(7) A majority of the members of the Appeal Board shall constitute a quorum.

(8) Council may, by a two-thirds vote of its members, provide for remuneration to be paid to members of the Appeal Board and may prescribe the amount.

(9) The City Clerk or his or her agent shall be the secretary of the Appeal Board. 4.3.2 Appeals to the Appeal Board

(1) The Appeal Board shall hear appeals from any decisions of Council, or any Officer of Council charged with the administration of these Regulations, made under these Regulations where the decision is with respect to:

a) an application to undertake a development;

b) a revocation of an approval or a permit to undertake a development;

c) the issuance of a Stop Work Order issued pursuant to these Regulations;

d) a decision permitted under the Urban and Rural Planning Act, 2000 or another Act to be appealed to the Appeal Board; and the Appeal Board shall either confirm or reverse the decision of Council or Officer of Council. The decision of Council to adopt, approve or proceed with a municipal plan, development scheme, development regulations and amendments and revisions of them is final and not subject to an appeal.

(2) Any person may appeal to the Appeal Board from a decision of Council or an Officer of Council made under these Regulations.

(3) An appeal shall be submitted on the designated application form to the St. John’s Local Board of Appeal within fourteen (14) days of the decision appealed from, stating the circumstances and grounds for the appeal, together with fee as determined by Council, which fee shall be no greater than the appeal fee established for appeals to the Regional Appeals Board by Order of the Minister of Municipal and Provincial Affairs. The appeal will not be registered unless the required appeal fee is paid.

(4) The Appeal Board shall meet to hear an appeal within thirty (30) calendar days after the appeal has been filed with the Secretary of the Appeal Board and within fourteen (14) calendar days of hearing the appeal shall make its decision known in writing to both the Council and the appellant.

(5) The Secretary of the Appeal Board shall publish a notice in a local newspaper advising that an appeal has been registered and this notice shall be published not less than two (2) weeks before the date the appeal is to be heard by the St. John’s Local Board of Appeal.

(6) Council and the appellant are entitled, but not bound, to appear before the Appeal Board either personally or by representatives appointed by them.

(7) The Appeal Board shall not make a decision that is contrary to the Municipal Plan, or these Regulations.

(8) Where Council may in its discretion make a decision, the Appeal Board shall not make a decision that overrules that decision.

(9) Every member of the Appeal Board shall be subject to the provisions of the Municipalities Act with respect to conflict of interest as if he/she were a Councillor elected under that Act.

(10) The decision of a majority of the members of the Appeal Board present, excluding any members prohibited from voting because of conflict of interest, shall be the decision of the Appeal Board whose decision shall not be subject to further appeal.

(11) If the Appeal Board is unable to decide an appeal because of conflict of interest of a majority of its members, Council shall, for that appeal only, appoint other persons to replace those members so affected. 4.3.3 Effect of Decision by Appeal Board Council or the Officer of Council shall be bound to carry out the decision of the Appeal Board which shall be binding on all parties. 4.3.4 Development May Not Proceed Where an appeal is made, the Development concerned shall not proceed pending a decision of the appeal and the subsequent issue of all required permits. 4.3.5 Return of Appeal Fee Where an appeal made by an appellant is successful, an amount of money equal to the fee paid by that appellant shall be paid to him or her by the Council, and the Local Board of Appeal shall so order in its decision. 4.3.6 Decisions of Appeal Board

(1) A decision of the Appeal Board may be appealed to the Trial Division of the Supreme Court of Newfoundland.

(2) A person appealing a decision of the Appeal Board shall file a notice of appeal in the Supreme Court of Newfoundland, Trial Division and serve same upon the City within ten (10) days of the date of the decision being appealed. [ 30 ] In passing I would note what seems to be an internal inconsistency—the reference in

section 4.3.2(10) to no further appeal, and the inclusion of

section 4.3.6—the right of appeal to the Supreme Court. In any event,

section 4.3.6 is unnecessary given the statutory right of appeal and the ‘no further appeal’ reference in

section 4.3.2(10) conflicts with the statutory right of appeal provision in

section 46 of URPA . [ 31 ] I would note, gratuitously, that in any event,

section 4.3.6 may be outside the regulation-making authority of the City. [ 32 ] It is clear—leaving aside sections 4.3.4 and 4.3.6 for the moment—that wherever the word appeal is used in the St. John’s

Development Regulations, it refers to an appeal to the local board of appeal. In my view, this conclusion is inescapable. [33] The City places some reliance on

section 4.3.6—the appeal to court—as suggesting that this provision somehow supports anexpansive

interpretation of the word appeal as used in

section 4.3.4. I do not agree. As noted,

section 4.3.6 is redundant and in alllikelihood ultra vires. It simply reproduces section 46(1) of URPA albeit without the “law or jurisdiction” limit found in the statute. Ifthe provision is deleted, the statutory right to appeal to this Court remains intact; the provision provides no support for the City’s positionthat the stop work on appeal provision applies to appeals to this Court, the Court of Appeal and the Supreme Court of Canada. [34] The

interpretation of appeal as meaning only an appeal to the local board of appeal is reinforced by the broader contextprovided by the Development Regulations and URPA. Section 8(1) of the Development Regulations refers to development ceasing uponnotice of the registration of an appeal. In the context of the Development Regulations, this clearly refers to an appeal to a local board ofappeal. [35] Perhaps more on point, subsection 45(1) of URPA orders a cessation of work “when an appeal is made under

section 42”—to alocal board of appeal—“pending a decision of the board”. It is evident that this provision contemplates a stay only with respect to anappeal to a local board and then only until a decision is made by that board. [36] This hierarchical legislative context must inform the

interpretation of the St. John’s Development Regulations, and I find in thatcontext compelling support for the narrower

interpretation of the word appeal as used in

section 4.3.4. [37] As set out in Archean Resources, the process of

interpretation involves consideration of the general ambit of the legislation witha view, within that ambit, to arriving at an

interpretation—a meaning—that provides a fair and just result in the particular circumstances. [38] The legislative scheme for regulating land development mandates that those concerned with development-related decisions ofmunicipal authorities have access to a process that allows them to challenge such decisions. The local appeal board structure provides anexpeditious, informal and inexpensive avenue through which to have an informed and independent body assess land developmentdecisions of a municipality. [39] The legislative scheme contemplates development disputes being dealt with at the local board level. Above the level of thelocal board of appeal,

section 46 of URPA provides only a limited right of appeal to this Court. The limitation of such an appeal toquestions of law or jurisdiction—itself a narrow concept—shows an intention to limit a court appeal to those issues that may be ofprovince-wide import and be relevant to the functioning of municipalities and boards beyond those directly involved.

Issues relating to‘on-the-ground’ local matters are left to each appeal board. [40] Pending disposition by the appeal board, work on development is stopped, thus preserving the status quo as of the date of thefiling of the appeal. [41] URPA (subsection 42(4)) requires that an appeal to a local board be filed within 14 days of receipt of the impugned decision;section 4.3.2(4) of the St. John’s Development Regulations requires that an appeal be heard within 30 calendar days of filing and adecision rendered by the board within a further 14 calendar days.

A statutory stop work order after a permit has been issued obviouslycreates some concern for a developer. The opposing interest is that of the concerned appellant and the legitimate wish to ensure thatdevelopment proceeds only in accordance with the governing plan and regulations.

The legislative structure balances those interests byrequiring a halt to the development pending completion of the relatively quick local appeal board process. [42] To accede to the City’s view that work must stop until all court appeals—including up to the Supreme Court of Canada—areexhausted would lead to circumstances where work is delayed for a number of years. Such a circumstance would be both unfair andunreasonable. [43] Had the legislature intended to extend the stop work provision beyond appeals to the local board, it could have easily done so.

It did not. [44] For the above reasons, my view is that the word appeal as used in

section 4.3.4 of the St. John’s Development Regulations,interpreted within the context of those regulations, and with such

interpretation informed by the provisions of URPA and theDevelopment Regulations, means an appeal only to the Board of Appeal. [45] Although that finding is sufficient to dispose of the appeal, I will give my views on the ability of the City to pass a regulationthat requires a stoppage of work once an appeal from the Local Board of Appeal is filed with this Court. [46] The authorities make it clear that the City is a creature of and derives its regulatory authority from statute. I refer to ImmeublesPort Louis Ltée v.

Lafontaine (Village), (SCC), [1991] 1 S.C.R. 326, at paragraph 44: 44 A municipality, which is a creature of statute, has only the powers expressly delegated to it or resulting directly from powers sodelegated. Acting otherwise goes to the very existence of the power, since the administrative authority has no jurisdiction to act as it isdoing. This lack of jurisdiction may relate to the subject matter, the territory or the person. … [47] See also 10718 Nfld. Inc. v. St.

John’s (City), 2018 NLSC 82, at paragraphs 20-22; aff’d 2019 NLCA 41. [48] Subsection 35(1) of URPA, reproduced above, gives municipal authorities the power to make development regulations relatingto specific matters. One of those matters is “respecting appeals of decisions to boards”.

[ 49 ] That limited authority does not extend to appeals to a superior court. The ability for an appellant to engage the jurisdiction of the superior court is governed by

section 46 of URPA . Had the legislature intended to delegate to the City and to other municipalities the authority to regulate ‘respecting appeals of decisions to the Supreme Court’, it could have done so. It did not, but rather occupied the field of court appeals through the provisions of URPA and delegated only matters relating to local board appeals to the municipalities. [ 50 ] To interpret

section 4.3.4 of the St. John’s Development Regulations as applying to appeals to the courts would be to recognize a regulation that would be ultra vires the regulation-making authority of the City. DISPOSITION [ 51 ] In the particular circumstances of this case, and supported by the comments of Mercer, J.A. in Sun Life Assurance Co. of Canada v. St. John’s (City) , 2006 NLCA 62 , at paragraph 27 , I am comfortable in making an adjudication at this stage rather than returning the issue of the validity of the July 3, 2019, stop work order to the St. John’s Local Board of Appeal.

Given my ruling and reasons on the legal issues here engaged, a remission to the Board of Appeal would be pointless and counterproductive. Accordingly:

(1) It is declared that the word “appeal” as used in

section 4.3.4 of the St. John’s Development Regulations means an appeal only to the St. John’s Local Board of Appeal;

(2) The stop work order of July 3, 2019, issued by the City and reproduced at Tab “C” of the July 11, 2019, affidavit of Joseph McKenna is set aside;

(3) Should the work permit issued on April 23, 2019, be no longer valid, the City is directed to issue the appropriate permit or permits relating to the work subject to the July 3, 2019, stop work order; and

(4) Long Harbour is entitled to its Column 3 costs pursuant to Rule 55 of the Rules of the Supreme Court, 1986 , SNL 1986, c. 42, Sch. D . [ 52 ] Nothing in these reasons should be taken in any way to affect the carriage or adjudication of Randy Walsh’s appeal 201901G4228, nor affect in any way Mr. Walsh’s ability, should he so choose, to seek pre-hearing relief by way of an application for a stay or injunction. _____________________________ David B. Orsborn Justice