West Hants District (Municipality) v. Nova Scotia (Utility and Review Board), 2016 NSCA 57

Nova Scotia Court of Appeal Citation: West Hants District (Municipality) v. Nova Scotia (Utility and Review Board) , 2016 NSCA 57 Date: 20160713 Docket: CA 450501 Registry: Halifax Between: Municipality of the District of West Hants Appellant v. The Nova Scotia Utility and Review Board and the Attorney General of Nova Scotia Respondents Judge: The Honourable Justice Peter M.S. Bryson Appeal Heard: June 16, 2016, in Halifax, Nova Scotia Subject: Municipal law. Appeal from the Nova Scotia Utility and Review Board

Summary: The Nova Scotia Utility and Review Board left in place a councillor for former Town of Hantsport, following Town’s dissolution based on “community of interest”. West Hants appealed, arguing that the -26% voter variance for the former town was unjustified. West Hants also argued that Board had failed to follow its previous decision on procedure and failed to consider West Hants’ application and a consultant’s report. Issues:

(1) Did Board fail to follow its own guidelines regarding voter variance?

(2) Did Board fail to follow its previous decision on procedure?

(3) Did Board fail to consider West Hants’ application and a consultant’s report? Result: Appeal dismissed. Board followed guidelines, which permitted a voter variance when justified. A community interest in the former town of Hantsport justified deviating from voter variance guidelines. Board’s previous decision did not limit its jurisdiction to require further study and consideration of former town’s “community of interest”. Board did consider application and consultant’s study, but was not required to “rubber stamp” council’s decision or consultant’s report.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 11 pages. Nova Scotia Court of Appeal Citation: West Hants District (Municipality) v. Nova Scotia (Utility and Review Board) , 2016 NSCA 57 Date: 20160713 Docket: CA 450501 Registry: Halifax Between: Municipality of the District of West Hants Appellant v. The Nova Scotia Utility and Review Board and the Attorney General of Nova Scotia Respondents

Judges: Beveridge, Bryson and Scanlan, JJ.A. Appeal Heard: June 16, 2016, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Bryson, J.A.; Beveridge and Scanlan, JJ.A. concurring Counsel: Jane O’Neill, for the appellant Bruce Outhouse, Q.C. for the respondent Nova Scotia Utility and Review Board (not participating) Edward A.

Gores, Q.C., for the respondent Attorney General of Nova Scotia (not participating) Reasons for judgment: Introduction [ 1 ] West Hants appealed a decision by the Nova Scotia Utility and Review Board, which fixed the electoral boundaries to be effective for October 2016 municipal elections. Owing to the imminence of the elections, the Court scheduled and heard the appeal on an expedited basis. [ 2 ] At the hearing, the Court dismissed the appeal with reasons to follow. These are they. Background [ 3 ] Sadly, it is commonplace in rural Nova Scotia that many older communities are shrinking.

Populations are aging—young people and industry move away. They are not replaced. Small communities struggle to maintain their corporate existence. [ 4 ] The Town of Hantsport faced this reality when it recently applied to the Nova Scotia Utility and Review Board for dissolution of the Town under the Municipal Government Act , S.N.S. 1998, c. 18 . [ 5 ] Almost coincident with the Town’s application, the Municipality of the District of West Hants undertook a required boundary review of proposed electoral districts.

At a preliminary hearing before the Board, the boundary review was adjourned pending the Town’s dissolution application so that the outcome of the application could be considered in the context of the electoral boundary review. [ 6 ] Stantec Consulting Limited was retained to provide a report and make recommendations regarding municipal district boundaries. [ 7 ] The Stantec Report contemplated three options, depending on the outcome of the Hantsport dissolution application.

Hantsport would either join Kings County, join West Hants as a village, or not. [ 8 ] Hantsport was dissolved and joined with West Hants effective July 1, 2015. Pending the October 2016 elections, the Board added Hantsport’s former mayor to the West Hants council. The Board ordered a public hearing to consider the Stantec study and the appropriate polling districts and boundaries for the 2016 elections.

West Hants then filed its boundary review application and requested the Board implement the Stantec recommendations by incorporating the former Town of Hantsport into an electoral district with geographically proximate communities. [ 9 ] The Board refused to implement the recommendations in the Stantec Report. West Hants had not conducted further consultation studies following dissolution of the Town. The Board considered that West Hants and Stantec had not properly addressed the former Town of Hantsport’s “community of interest”.

To remedy this omission, the Board added an additional electoral district for the former Town which resulted in West Hants having ten councillors rather than Stantec’s previously recommended nine. [ 10 ] West Hants appealed the Board’s decision arguing that creating an electoral district for the former Town resulted in a voter variance that is inconsistent with guidelines established by the Board in the past.

West Hants complains that the Board ignored its earlier direction when Hantsport was dissolved and failed to properly consider its boundary review application and the Stantec Report. [ 11 ] West Hants says the Board’s decision was not reasonable and requests that its appeal be allowed and this Court confirm the Stantec Report recommendations.

This Court’s jurisdiction [ 12 ] An appeal of the Board’s decision to this Court is confined to questions of law and jurisdiction: An appeal lies to the Appeal Division of the Supreme Court from an order of the Board upon any question as to its jurisdiction or upon any question of law, upon filing with the Court a notice of appeal within thirty days after the issuance of the order. Utility and Review Board Act , S.N.S. 1992, c. 11, s. 30(1)

Board findings of fact are “binding and conclusive”, (s. 26). [ 13 ] The Act gives the Board the authority to determine the number and boundaries of polling districts, (s. 369). The Board’s decision is reviewed by this Court on a reasonableness standard, ( Richmond County (Municipality) v.

Nova Scotia (Attorney General) , 2016 NSCA 11 , para. 23 ). [ 14 ] Reasonableness has been described by the Supreme Court of Canada as: . . . concerned mostly with the existence of justification, transparency and intelligibility within the decision - making process . . . [but is also concerned with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. Dunsmuir v. New Brunswick , 2008 SCC 9 [ 15 ] The standard does not involve two different inquiries; one for reasons and the other for outcomes.

Rather the exercise is “organic”; “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within the range of possible outcomes” ( Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , para. 14 and Dunsmuir ). Issues [ 16 ] West Hants argues that the Board erred in law in three ways: 1. It failed to consider its own guidelines when fixing the electoral districts. 2. It failed to follow the process set out by the Board panel that originally considered the Town’s dissolution application. 3.

It failed to consider West Hants’ application and the Stantec Report. Did the Board ignore its own guidelines? [ 17 ] The Municipal Government Act requires that each municipality conduct a study every eight years, regarding the number and boundaries of polling districts.

After completion of the study, application must be made to the Board to confirm or vary the number of counsellors and boundaries of each proposed electoral district. [ 18 ] In determining the number and boundaries of polling districts, the Board is required to consider the number of electors, relative parity of voting power, population density, community of interest and geographical size, (s. 368(4)). [ 19 ] In 2004, the Board provided extensive guidelines on the application of s. 368(4), ( Re Halifax Regional Municipality , 2004 NSUARB 11 ). “Community of interest” is one of the guidelines. [ 20 ] In Richmond County , this Court described the guidelines as not jurisdictional fetters but rather as a means of providing assistance to municipalities in navigating the Act ’s process of periodic review.

The Court went on to explain that process: [35] In Re Halifax , para. 107, the Board said the “starting point” is for the council to determine the desired number of councillors following public consultation. This means the council’s preference is the objective of the municipality’s application under s. 369(2). It does not mean the council’s preference presumptively carries the day under s. 368(4). The Board then explained how “relative parity”, from s. 368(4), would apply to the Board’s assessment of a municipality’s application.

Essentially, the Board’s flexible margin of variance (± 10%, or up to ± 25% if justified) channels the tolerance for the municipality’s indigenous circumstances. A submission about a suggested social compact, as the Municipality urges here, should either address the 10% margin or, if necessary, cite evidence that supports a justification to exceed that margin up to 25%.

A variance in voter parity is permissible, if justified. [ 21 ] West Hants says the Board’s decision is unreasonable because it rejects its council’s recommendations that were formed after extensive public consultation and under direction of the Board when it ordered dissolution of the Town. West Hants argues the Stantec Report was prepared in accordance with Board guidelines, but was then ignored by the Board when according the former Town of Hantsport separate representation.

Providing the former Town with this representation results in a voter variance of -26% “with little to no justification”. [ 22 ] West Hants adds that the Board made the following finding without any evidence beyond the representations of an interest group—“Think Hantsport”: [25] It is a fundamental principle of municipal government that electors are represented by councillors who they believe best represent their collective interest.

The Board finds, in the circumstances, that the Municipality should have given greater consideration to the former town of Hantsport as being a strong community of interest. . . . [ 23 ] The Board is not limited by the same rules of evidence as a court of law. It may receive any information that “may assist it to deal with the matter before it”, ( Utility and Review Board Act , s. 19; Yarmouth (Town) v. Gateway Importers and Exporters Ltd. , 2011 NSCA 17 ; Upshaw v.

Nova Scotia (Utility and Review Board) , 2008 NSCA 88 ). [ 24 ] This Court has no jurisdiction to overturn a finding of fact unless there is no evidence to support it. In the latter case, such a “finding” would be an error of law ( R. v. Schuldt , [1982] 2 S.C.R. 592, at page 604) . [ 25 ] In the administrative law context, the constraints are the same. In Fadelle v. Nova Scotia College of Pharmacists , 2013 NSCA

26, Justice Fichaud explained: [15] Put simply, a finding based on no evidence is arbitrary. Tribunals are not supposed to act arbitrarily in any aspect of theirprocess, including fact finding: Toronto (City) Board of Education v. O.S.S.T.F., (SCC), [1997] 1 S.C.R. 487, para 44,per Cory, J. for the majority, referring to Douglas Aircraft Co. of Canada v. McConnell, (SCC), [1980] 1 S.C.R. 245, at277. So an arbitrary finding, based on no evidence, is an error of law. I add that a fact finding tribunal is entitled to draw inferences,meaning the evidential foundation need not be direct evidence.

Further, I am not commenting on judicial notice, which has no applicationto this appeal. [16] If there is evidence, then a submission that the tribunal gave the evidence either too much weight and wrongly preferred itover other evidence, or too little weight and wrongly discounted it compared to other evidence, raises an issue of fact: Toronto (City)Board of Education, paras 44-45, 48; Young, para 22. Whether the tribunal should draw an inference from the evidence is a question offact: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, paras 19-25.

Similarly, “[a]ssessments of credibility arequintessentially questions of fact”: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 , [2003] 1S.C.R. 226, para 38. [Emphasis added] Like Fadelle, there is no jurisdiction in this case to interfere with findings of fact which have evidentiary support. [26] The Board made strong findings in favour of a community of interest in the former Town of Hantsport: [36] The Board finds that, at this time, there is a strong community of interest in the former town of Hantsport and this is a strongfactor to consider when reviewing elector variances.

Because of the larger issues surrounding the possibility of dissolution, the Boardfinds, on the balance of probabilities, that it is unlikely the residents of the former town were focussed on representation at the time ofthe Stantec Inc. public consultation. The Board finds that the views of THIDA, who were very active in the hearing on the town’sdissolution, on the balance of probabilities, better reflect those of the residents of the former town.

The Board finds that there is a verystrong community of interest within the boundaries of the former Town of Hantsport and that this should have been considered by theMunicipality when it determined its polling districts. The Board also finds that this community of interest, in this circumstance, is onewhich should be given predominant weight.

Accordingly, the Board finds there should be one polling district which is comprised of theboundaries of the former town of Hantsport. [27] Apart from the submissions of Think Hantsport, the Board observed that former members of the Town of Hantsport hadexpressed concern regarding their Town’s identity following dissolution. The Stantec Report describes this concern: . . . Residents were clearly concerned with the identity of their community following dissolution and the implications of becoming avillage. A substantial portion appeared to be opposed to dissolution or, at least, reluctant to undertake it.

Many of these hoped that villagestatus would allow them to retain a greater measure of control over services, as well as preserving the identification of Hantsport as adistinct place. [28] There was evidence before the Board that supported its conclusion that there is a strong community of interest in the formerTown of Hantsport. That is a conclusion with which this Court cannot interfere. While we may not have accorded the same weight to“community of interest” as the Board, that was the Board’s decision to make. It noted that a ±25% variance should only apply in“exceptional cases”.

It decided that the strong community of interest made this such a case. That was not unreasonable because there wasan evidentiary foundation for that finding. [29] Although West Hants protests that the Board did not follow its own guidelines and “chose to ignore” the Stantec Report, it isplain from its decision that the Board considered both. The Board discussed the Report at some length in its decision. The Boardconsidered council size and polling districts, as well as voter parity. Nine councillors would have resulted in a variance of -33% for theformer Town, assuming it elected its own councillor.

The apparent compromise for the Board was to acknowledge the former Town’scommunity of interest by giving that community its own councillor, while increasing council size from the recommended nine to ten, toreduce the negative variance. [30] The deference with which this Court is obliged to treat the Board’s decision does not permit us to second guess the Board,absent an unreasonable result. Did the Boundary Review Board fail to follow the process set out by the Board’s dissolution decision? [31] West Hants next submits that the Board failed to “follow the process set out by the dissolution panel”.

At a dissolution hearing,the Board has broad authority: 399

(1) After the application for dissolution is heard, the Board may dissolve the town upon such terms as it considers advisable.

(2) The order of the Board dissolving a town shall (

f) make such determinations, issue such orders and directions and do or cause to be done all such other matters and things as, in

the opinion of the Board, are necessary or incidental to the carrying out of the dissolution of the town. [ 32 ] West Hants refers to paragraph 8 of the dissolution order: The Town and Municipality have filed a study under s. 368 of the Municipal Government Act , and an application with the Board under s. 369, outlining the proposed number of councillors and polling district boundaries for the combined Municipality, which are to take effect for the October 2016 municipal election. The Board Clerk will

schedule a hearing with respect to the said application under s. 369. [West Hants’ emphasis] [ 33 ] West Hants also quotes from the Board dissolving decision: [214] Assuming that West Hants remains satisfied with the recommendations in the Stantec Report , the Clerk of the Board will contact counsel to

schedule a hearing to consider the study and to canvass the comments of the parties and the public, if any. [. . .] [277] The Clerk of the Board will contact the parties to

schedule a public hearing respecting the consideration of Stantec’s Governance Study , and the issue of the appropriate number of polling districts and boundaries to be implemented for the October 2016 municipal election. [West Hants’ emphasis] [ 34 ] One can have some sympathy with the Municipality’s apparent consternation that the Board failed to implement the Stantec Report recommendations as the Board’s earlier decision seems to imply.

That report was prepared with extensive public consultation which contemplated precisely the circumstances that transpired here—that the Town would be dissolved and incorporated into the Municipality of West Hants. Everything legally required had been done. Nothing in the dissolution decision suggested that the Municipality should have more public consultations or conduct more studies.

Indeed, the dissolution Board praised West Hants for being “respectful of the residents of Hantsport throughout this entire process”. [ 35 ] West Hants may now feel “blindsided” by the Board’s new requirement for some “additional study”. [ 36 ] While it is possible to infer that the dissolving Board did not expect further evidence to be adduced at the boundary review hearing, that is not prohibited by the Board’s earlier decision or order. And if the Board expected nothing to change, it could have decided no further hearing was required.

Indeed, West Hants requested this, but it was declined by the Board. [ 37 ] As previously described, the Board hearing the boundary review felt that West Hants should have solicited further public input and “some form of additional study” should have been conducted. While the Municipality resisted wasting public resources on any additional study, the Board was not satisfied that the added expense should prevent a public consultation which it saw as necessary.

Previous consultation was inadequate because: The focus of residents of the former town was not [then] on the details of governance, but on [the town’s] survival. In fact, the Board questions how they could be thinking of such detail in respect of West Hants when the majority favoured amalgamation with Kings. [ 38 ] There is nothing in the Act or the Board’s earlier decision and order that purports to curtail the jurisdiction of the Board when hearing the boundary review. [ 39 ] The Board would have preferred to remit West Hants’ application back to the Municipality for further deliberations.

But the imminence of new elections obviated meaningful public input before then. [ 40 ] The Board did not err in law by deciding that the former Town’s “community of interest” should be accommodated by having its own councillor. Did the Boundary Review Board fail to consider West Hants’ application and the Stantec Report? [ 41 ] The Board allegedly failed to consider the Stantec Report when rendering its electoral boundary decision.

West Hants points out that prior to the Board’s decision in this case, there was no issue at any time with Stantec’s proposal of nine electoral districts and councillors. [ 42 ] West Hants reiterates that the Stantec Report and the Municipality’s subsequent application were prepared in accordance with guidelines set by the Board. In particular, West Hants says that the number of councillors and polling districts were considered, relative parity was taken into account, as was community interest and geography.

The most recent voter data was used, there were five public meetings, and focus groups with all three municipalities and the public. The public were free to appear before the Board at the boundary review hearing. [ 43 ] West Hants has requested the Court confirm its recommendation, based on the Stantec Report, that there should be nine councillors with the boundaries to be drawn in accordance with Stantec’s recommendations. [ 44 ] The Board plainly felt that the dissolution of the Town—even though contemplated in the Stantec Report—was a change that required further consultation about future representation.

The Board remarked:

[24] Since the resolution of two of the issues (dissolution and amalgamation with West Hants), the Municipality should have been sensitive to the unresolved concerns of the residents. Unfortunately, it appears the Municipality was not and did not conduct any further study or public consultation. The Municipality did not even hold a special Council meeting to ask for additional public input and have further deliberations. [ 45 ] There is nothing that legally constrains the Board from entertaining evidence, making findings, and requiring additional studies if it thought these were justified.

It was not required to “rubber stamp” the Stantec Report or West Hants’ council decision. The Board was obviously influenced by the submissions of Think Hantsport and the unresolved community disquiet which the Stantec Report noted. The Board was not persuaded that Hantsport residents were previously focused on the question of post-dissolution representation. To reiterate, part of the Board’s finding earlier alluded to: [36] . . .

Because of the larger issues surrounding the possibility of dissolution, the Board finds, on the balance of probabilities, that it is unlikely the residents of the former town were focussed on representation at the time of the Stantec Inc. public consultation. . . . [ 46 ] The solution of providing the former Town with its own councillor was a practical one in view of the Board’s concern about community of interest and the shortage of time before the next elections. Nothing in the Board’s decision implies that this would be a permanent resolution. The Boundaries and representation could change at the next review.

Although the Board’s decision results in approximately a -26% voter variance in the former Town’s electoral district, the Board has provided “community interest” as a clear reason for the variance.

That reason has legal foundation in the Act and is based on evidence and submissions in the record. [ 47 ] In the end, the Board decided that the West Hants council and the Stantec Report did not adequately take into account the former Town’s community of interest, and found that the former Town should have its own councillor. [ 48 ] This was an unwelcome surprise to West Hants; but it was not an error of law. [ 49 ] The appeal is dismissed. Bryson, J.A. Concurred in: Beveridge, J.A. Scanlan, J.A.