Melanie Lafosse Appellant And: Eastern Newfoundland Regional Appeal Board First Respondent And: THE TOWN COUNCIL FOR THE Town of Witless Bay Second Respondent, 2021 NLSC 77

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Lafosse v. Eastern Newfoundland Regional Appeal Board , 2021 NLSC 77 Date : June 2, 2021 Docket : 202101G2679 Between: Melanie Lafosse Appellant And: Eastern Newfoundland Regional Appeal Board First Respondent And: THE TOWN COUNCIL FOR THE Town of Witless Bay Second Respondent Before: Justice Glen L.C. Noel Edited Transcript of Oral Reasons for Judgment On Appeal From: A Decision of Eastern Newfoundland Regional Appeal Board pursuant to section 46(2) of the Urban and Rural Planning Act, 2000 , S.N.L. 200, c.

U-8, File # 15-006-067-011 dated the 23rd day of March, 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 19, 2021 Date of Oral Judgment: May 20, 2021

Appearances: Michael J. Crosbie, Q.C. Appearing on behalf of the Appellant No Appearance On behalf of the First Respondent Joseph J. Thorne Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; CaddyLake Cottagers Assn. v. Florence-Nora Access Road Inc., (MB CA), 126 Man. R. (2d) 230, 1998 CarswellMan 81(C.A.) STATUTES CONSIDERED: Judicature Act, R.S.N.L. 1990, c. J-4 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch.

D REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] The Appellant, Melanie LaFosse has applied for a stay of the Order appealed pursuant to Rule 58.06 of the Rules of theSupreme Court, 1986, S.N.L. 1986, c.42, Sch. D; or alternatively for an Interim Interlocutory Injunction pursuant to Rule 24.04(4). background Late Filing of Affidavits [2] The first issue I must decide is: whether to give leave to permit the late filing of Affidavits from Donna LaFosse, AlanRichards, Lorna Yard and two Affidavits of Noel O’Dea. [3] The Town objects and asks that I not allow the Affidavits into evidence.

Counsel for the Town further raises concerns aboutthe inadmissibility of opinions, conclusions, and prejudicial comments in the Affidavits that go beyond the scope of grounding the factsin support of the Application. [4] I am allowing the Affidavits into evidence despite the late filing. The remedy otherwise would have been to grant the Town apostponement. Counsel for the Town did not seek a postponement but submitted I not accept the Affidavits into evidence. To refuse theadmission of the Affidavits would prevent Ms.

LaFosse from establishing a proper evidentiary foundation to ground her Application andthe relief she seeks. This would not be doing justice and allowing for a determination on the merits of the Application. The Town hasnot pointed to any evidentiary prejudice in its ability to respond to the Affidavits and the merits of the Application with a request to crossexamine the affiants or to file rebuttal affidavits. Offending Comments in Affidavits [5] In allowing the Affidavits into evidence, I am disregarding and attributing no weight to the offending comments that Counselfor the Town has alluded to in argument.

I am directing Counsel for Ms. LaFosse to be mindful that unnecessary and inflammatorycomments in Affidavits or other filings may be struck and result in cost consequences. The parties have a right to be passionate abouttheir interests and causes. What they do not have a right to is to make unsupported allegations. Counsel for the Town, if he chooses todo so, has leave to apply for the striking of offending language and comments in the Affidavits setting out specifically what wording he

contends should be struck. It may be that Counsel for Ms.

LaFosse can agree on redactions to the Affidavits filed in the event the Townintends to pursue this issue. [6] It may also be that the parties have more pressing concerns to deal with now that Counsel for the Town has forcefully madehis position clear on the record concerning the alleged offending comments in the Affidavits. analysis Issue: Whether to Grant Stay or Interim Injunction? [7] I will now turn to the consideration of whether to stay the Decision appealed, or to grant an Interim Injunction in relation to theproceeding before the Court. [8] The Decision is the Eastern Newfoundland Regional Appeal Board ruling of 23 March 2021.

The Board ordered that it has nojurisdiction to hear Ms. LaFosse’s appeal against the decision of the Town made on 19 May 2020, to tender for road work to extendMullowney’s Lane from the turnaround for 168 meters, and to upgrade the right of way to the existing standards of Mullowney’s Lane. [9] Ms. LaFosse filed a Notice of Appeal of the Decision in this Court on 28 April 2021. The Notice is signed by her and not bylegal counsel. However, I do observe the level of detail and legal sophistication makes it appear as if she had the guidance of capablelegal counsel.

In her appeal she relies on s. 34(2) of the Judicature Act, R.S.N.L. 1990, c. J-4, which permits the Court to alter or modifythe decision or make an Order that is just. [10] The Town asserts a stay of the Board’s Order will have no force and effect because the Town could carry on with the work toMullowney’s Lane as it intended. What LaFosse is asking the Court, the Town submits is for the Court to order the Town to stop work.

Her Application is therefore best characterized as an application for Interlocutory Injunction. [11] Both parties agree the legal test for a stay is similar to the test for an Interim Injunction. Before analyzing the test, I wouldpoint out Rule 58.06(3) dealing with a stay pending appeal permits the Court to make an order “on any terms a judge considersappropriate.” It is not necessary for me to decide that a “stop work order” could be made under Rule 58.06(3). I am going to determinethis matter on the basis of the injunctive relief that LaFosse seeks.

The Town makes a further preliminary objection that there is nosuitable underlying proceeding. I disagree with that objection. [12] The underlying proceeding is the Appeal. Rule 22.01(1) states an application for an injunction may be made by a party to aproceeding, at any time after the commencement of the proceeding. [13] Although there is no specific reference in Rule 22.01(1) to an appeal, I must take a contextual approach to

interpretation of theRules of the Supreme Court. Rule 1.02 stipulates the rules govern every proceeding in the Court, including conduct of appeals. The Legal Test for Interim Injunction [14] It is with this background that I will proceed to consider the legal test formulated by the Supreme Court of Canada in RJR –MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 for interim injunctions. The test has threeprongs that the Court is required to address: 1. Whether there is a serious issue to be argued on appeal; 2. Whether there will be irreparable harm if the injunction is not granted; and 3.

Who the balance of convenience favours. [15] The Town does not take strong objection to the serious issue and the balance of convenience factors. However, the Townsubmits there is no evidence or insufficient evidence to establish irreparable harm on a balance of probabilities. [16] On the first prong of the test on whether this is a serious issue, I am satisfied on a preliminary assessment of the grounds ofappeal that the Appeal is not frivolous or vexatious. I make no conclusion otherwise as to the merits of the Appeal. [17] I am also satisfied that the balance of convenience favours the relief sought.

The Town will be delayed, if it is successful onthe Appeal, in the performance of the work tendered. The delay will not be undue as I have given the date of 30 June 2021, for thehearing of the Appeal. [18] What the Interim Injunction relief turns on then is whether there is sufficient evidence of irreparable harm, and to whom. Irreparable Harm [19] The only authority I have been referred to by the parties in the context of environmental irreparable harm is the Manitoba Courtof Appeal decision in Caddy Lake Cottagers Assn. v. Florence-Nora Access Road Inc., (MB CA), 126 Man. R. (2d)230, 1998 CarswellMan 81 (C.A.).

Even in that case, the appellate judge proceeded to analyze the real issue in dispute on the basis of thebalance of convenience. I note in paragraph 11, it is stated: “the refusal to grant the relief sought will basically trigger a non-reversibleprocess.” [20] I find Ms. LaFosse and others, as confirmed by the evidence of the affiants, will suffer irreparable harm if the Town proceedswith the construction work tendered, and ultimately it is determined the Town had no legal authority to carry out the work in the mannerit did so.

To undo the construction work would neither be practical nor put the land and environment back to its before constructionstate.

[ 21 ] The interest of justice demands LaFosse be given an opportunity to have her legal position determined on the merits, and leave the land as is until that determination is made. The foundation of our freedoms and democracy is grounded in citizens respecting the rule of law. LaFosse and the Town will get a prompt and fair hearing before this Court to resolve the contentions and passionate dispute according to the governing legal principles and law. [ 22 ] The authorities establish, and Counsel for Ms.

LaFosse concedes, that the Appellant is required to give an undertaking to abide by any order that the Court may see fit as to damages by reason of the granting of the Interim Injunction, if it shall hereafter appear that the Town has sustained any damages which the Appellant ought to pay. costs [ 23 ] I will deal next with costs. In the normal course the successful party would be entitled to costs, or there would be an order as to the costs in the cause meaning ultimate success in the proceeding.

Even if LaFosse is ultimately successful in her Appeal, I am not ordering costs against the Town for this Application for two reasons. Firstly, the supporting Affidavits were filed late. And secondly, the Town was in its right to contest the Application given there are no reported cases from our Court on the granting of an injunction on a statutory appeal. In the event the Town is ultimately successful, the Town will have leave to address costs of this Application in the cause.

Other Procedural Matters [ 24 ] There are other matters in the conduct of proceedings, I am now going to address. [ 25 ] I am going to give leave to LaFosse to file a Judicial Review Application as an alternative form of relief; if it is determined the Appeal Board had no jurisdiction to hear the Appeal. [ 26 ] I am ordering Case Management on this proceeding and any subsequent proceedings that may be filed as a result of the leave given herein. [ 27 ] I will be asking Counsel to address the draft Order that has been filed, and for us to set filing dates and a Case Management Meeting date. [1] _____________________________ Glen L.C.

Noel Justice