Miner v. Kings (County), 2017 NSCA 5

Nova Scotia Court of Appeal Citation: Miner v. Kings (County) , 2017 NSCA 5 Date: 20170117 Docket: CA 451529 Registry: Halifax Between: Russell “Bret” Miner and Marjorie Jean Miner Appellants/Respondents by Cross-Appeal v. The Municipality of the County of Kings and Glooscap First Nation Economic Development Corporation Respondents Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: November 8, 2016, in Halifax, Nova Scotia Subject:

Section 189 of the Municipal Government Act ( MGA ); Public Interest Standing

Summary: The Miners sought to challenge by way of judicial review, the legality of a bylaw enacted by the Municipality of the County of Kings (The Municipality). The Miners’ chief complaint was that the process implemented by the Municipality in passing the bylaw denied landowners in Avonport procedural fairness. The Miners did not own property in Avonport and conceded they had been treated with procedural fairness in the process. Glooscap challenged the Miners’ standing to bring the judicial review. The reviewing judge granted standing, but ultimately dismissed the Miners’ notice of judicial review.

The Miners appealed, asserting the reviewing judge failed to consider their arguments that the bylaw was illegal. Glooscap filed a cross-appeal asserting the reviewing judge erred in granting standing. Issues: The issues arising from the cross-appeal are dispositive of the matter. They are:

(1) What standard of review applies to the reviewing judge’s determination they had standing?

(2) Did the reviewing judge err in granting standing?

(3) Should standing have been granted to the Miners on the basis of considerations other than those stated by the reviewing judge? Result: Appeal dismissed, cross-appeal allowed. In the present circumstances, the standard of review is correctness. The reviewing judge erred in granting the Miners standing under s. 189 of the MGA , nor did they meet the criteria for public interest standing. 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 15 pages. Nova Scotia Court of Appeal Citation: Miner v.

Kings (County) , 2017 NSCA 5 Date: 20170117 Docket: CA 451529 Registry: Halifax Between: Russell “Bret” Miner and Marjorie Jean Miner Appellants/Respondents by Cross-Appeal

v. The Municipality of the County of Kings and Glooscap First Nation Economic Development Corporation Respondents Judges: Bourgeois, Saunders and Van den Eynden, JJ.A. Appeal Heard: November 8, 2016, in Halifax, Nova Scotia Held: Appeal dismissed, cross-appeal allowed, per reasons for judgment of Bourgeois, J.A.; Saunders and Van den Eynden, JJ.A. concurring Counsel: Douglas Lutz and Jillian D’Alessio, for the appellants/respondents by cross-appeal Jonathan G. Cuming, for the respondent Municipality Jason T.

Cooke and Keith Lehwald, for the respondent Glooscap/appellant by cross-appeal Reasons for judgment: [ 1 ] The appellants, Russell Miner and his mother, Marjorie Jean Miner, are residents of the Municipality of the County of Kings. They own property located on the Ben Jackson Road in Lockhartville. [ 2 ] The Glooscap First Nation Economic Development Corporation (Glooscap) also owns land on the other side of Ben Jackson Road, adjacent to Highway 101, which it would like to commercially develop. In pursuit of that goal, in May 2015, Glooscap submitted a planning application to the Municipality.

It sought to have its land rezoned from Forestry (F1) to Highway Commercial (C11). [ 3 ] At the conclusion of the process that flowed from the application, the Municipality passed two resolutions. The first served to rezone Glooscap’s land from (F1) to (C11) as requested, referred to as a land use bylaw map amendment. The second resolution served to amend the land use bylaw to permit additional uses not previously allowed in (C11) zones. This change was made by way of a land use bylaw text amendment.

At that time, besides the newly created (C11) zone on the Ben Jackson Road, only one other (C11) zone existed in the Municipality – in the hamlet of Avonport. [ 4 ] In October 2015, the appellants filed a Notice for Judicial Review pursuant to s. 189 of the Municipal Government Act , S.N.S. 1998, c. 18 ( MGA ), seeking to have the two amendments quashed on the basis of illegality. The focus of their challenge later became solely the bylaw text amendment. The matter was heard by Justice C.

Richard Coughlin on April 1, 2016. [ 5 ] Both the Municipality and Glooscap participated as respondents and vehemently opposed the position advanced by the appellants. In addition, Glooscap argued that the appellants ought not to be granted standing to advance an application for judicial review. In an oral decision rendered April 7, 2016, and subsequently released as 2016 NSSC 163 , the reviewing judge concluded the appellants did have standing to bring the matter before the court, but he ultimately dismissed their application. [ 6 ] The appellants now appeal that dismissal.

Glooscap filed a narrow cross-appeal, submitting that the reviewing judge erred in granting standing in the first instance. The Municipality filed a Notice of Contention requesting the decision under appeal be affirmed. It takes no position on the issue of standing. Background and Decision under appeal [ 7 ] Both in the court below, and before us, the appellants assert that the text amendment to the land use bylaw should be deemed illegal pursuant to s. 189 of the MGA due to a lack of procedural fairness.

The appellants assert that proper notice was not provided in accordance with the Municipality’s Public Participation Policy , and as such, the text amendment cannot stand. [ 8 ] For context, it is helpful to set out the particular portions of the Public Participation Policy which anchor the appellants’ submission. The policy sets out 21 steps, the most relevant being: 1. Applicant discusses with planner;

2. Application submitted with the signature or written authorization of a landowner; 6. Notice sent by staff to owners located within 500’ of the property for which the amendment has been requested, advising of PIM (public information meeting); 7. If a PIM is required by this policy, PIM ad is placed on County website and in a local paper; 15. First reading by Council; 17. Public Hearing notice sent to owners located within 500’ of the property for which the amendment has been requested. 18. Ad placed in local paper; 19.

Public Hearing held by Council. [ 9 ] There has never been an issue that the appellants received all required notices under the Public Participation Policy . Mr. Miner, in particular, took advantage of the available opportunities to express his views with respect to the amendment being considered. The appellants concede that they have been treated with procedural fairness by the Municipality in the process giving rise to the amendment they now challenge.

Their complaint is that the Municipality failed to treat landowners within 500 feet of the (C11) zone in Avonport with procedural fairness, as they did not receive the type of notice specified in steps 6 and 17 above. Those owners would have only received notice by virtue of the posting on the municipal website and newspaper advertisements. [ 10 ] In the court below, the respondents advanced multiple arguments, most focusing on the appropriateness of the process utilized by the Municipality. Extensive argument was advanced with respect to the

interpretation and impact of the Public Participation Policy . In short, Glooscap and the Municipality submitted that a proper

interpretation of the policy did not require direct notice to landowners in Avonport; and, in the alternative, that failure to provide direct notice would be a procedural irregularity which s. 189(2) of the MGA specifies does not give rise to an illegality. [ 11 ] As referenced earlier, Glooscap also raised the issue of the appellants’ standing. Both Glooscap and the appellants made extensive submissions to the reviewing judge on that issue.

The reviewing judge was provided with authorities relating to the granting of standing under s. 189 of the MGA ; and, more generally, authorities with respect to public interest standing. [ 12 ] With respect to standing, the reviewing judge concluded: [19] The issue of whether Mr. and Ms. Miner have standing has been raised. [20] Section 189(1) of the Municipal Government Act provides “a person” may apply to quash a bylaw. The record shows Mr. Miner received notice of the rezoning of 410 Ben Jackson Road which was sent to owners of property within 500 feet of the rezoning. No party objected to Ms.

Miner being an applicant. I find Mr. and Ms. Miner are residents and ratepayers of the Municipality of the County of Kings and have standing pursuant to s. 189 of the Municipal Government Act . [21] In dealing with an appeal from a dismissal of applications to quash a bylaw in giving the Ontario Court of Appeal’s judgment in Galganov v.

Russell (Township) , 2012 ONCA 409 , Weiler, J.A., addressed the standing of an individual who operated a business in the Township stating: On appeal, there is no question as to Brisson’s standing to apply to quash the bylaw; he operates a business in the Township. [ 13 ] The reviewing judge then proceeded to note that the procedural fairness concerns raised by the appellants had nothing to do with their treatment, but rather the landowners in Avonport. He dismissed the application for judicial review, and noted: [25] Mr. and Ms.

Miner received notice of the general changes to the Highway Commercial (C11) zone, attendance at the Public Information Meeting, received the notice of public hearing dated July 8, 2015 and notice of public hearing published in the Valley Harvester newspaper. Mr. and Ms. Miner were accorded full procedural fairness with relation to the bylaw in question. [26] They do not argue that they were not accorded procedural fairness.

They have no basis to seek to quash the bylaw. [27] The request for judicial review to quash the bylaw is dismissed. [ 14 ] The reviewing judge did not address the substantive arguments advanced by the parties with respect to the alleged illegality of the bylaw text amendment. Issues [ 15 ] In their Notice of Appeal, the appellants advanced three specific allegations of error.

In oral submissions, the appellants confirmed that the issues they sought to advance on this appeal were confined to the following: The Chambers Judge erred in failing to address the argument of prima facie illegality in his decision to dismiss the application to quash the by-law pursuant to

section 189 of the Municipal Government Act ; and In response to the cross-appeal of Glooscap the Appellants argue they have standing both on the grounds accepted by the Chambers Judge and on other grounds. [ 16 ] As will become apparent, the issue of standing is dispositive of this appeal. If the appellants were improperly granted standing,

they had no right to advance any substantive issues in the court below, or on appeal. [17] In my view, the issues to be determined on appeal are as follows: 1. What standard of review applies to the reviewing judge’s determination that the appellants had standing? 2. Did the reviewing judge err in granting standing? 3. Should standing have been granted to the appellants on the basis of considerations other than those stated by the reviewingjudge?

Analysis What standard of review applies to the reviewing judge’s determination that the appellants had standing? [18] Two preliminary observations inform the standard of review analysis. Firstly, although framed as an appeal of a judicialreview, it is important to note that the court below was not tasked with reviewing a previous decision on standing. The reviewing judgemade a determination of the appellants’ standing to bring a judicial review at first instance.

As such, the standard of review normallyassociated with an appeal of a judicial review decision is not applicable here. [19] Secondly, the identification of the appropriate standard of review is also informed by how the reviewing judge reached theconclusion now under appeal. Both before the court below and on appeal, the appellants assert two sources of standing. They say that s.189 of the MGA gives them standing as of right. Alternatively, they claim that they should be given the opportunity to challenge theMunicipality’s action on the basis of public interest standing.

The appellants were clear that they do not claim any direct or privateinterest standing in the matter, other than what arises based upon their

interpretation of s. 189. [20] It would appear from the reviewing judge’s reasons, that the granting of standing was solely based upon the appellants’ claimunder s. 189(1), and his

interpretation of that legislative provision. The reviewing judge did not engage in an analysis of the appellants’claim that they had public interest standing. Nor did he address the position advanced by Glooscap that a consideration of whether togrant the appellants standing under s. 189 of the MGA, necessarily included a consideration of common law principles. [21] Had the reviewing judge reached his conclusion on the basis of public interest standing, it is clear that such a decision is owedconsiderable deference.

The standard of review engaged by the granting or denial of public interest standing was articulated by theBritish Columbia Court of Appeal in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General),2010 BCCA 439 (aff. 2012 SCC 45) as follows: 37 The order denying the appellants public interest standing was made in the exercise of discretion by the judge. In Canadian Councilof Churches v. Canada, Justice Cory observed at pp. 252-3: ... The decision whether to grant status is a discretionary one with all that that designation implies. Thus undeserving applications may berefused.

Nevertheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner. 38 Being an order made in the exercise of discretion, the order appealed attracts considerable deference from this Court. As a generalproposition, we may interfere with discretionary decisions of the trial court only when this Court considers the judge acted on a wrongprinciple, or failed to give sufficient weight to all relevant considerations: Friends of the Oldman River Society v. Canada (Minister ofTransport), (SCC), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1; Harelkin v.

University of Regina, (SCC),[1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14; Mining Watch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. [22] Findings of standing as of right do not attract the same deferential approach.

The British Columbia Court of Appeal noted thedistinction between the two sources of standing: 23 The difference between private interest standing and public interest standing may be explained generally as the difference betweenstanding as a matter of right arising from a direct relationship between the person and the state, and standing granted by a court in theexercise of discretion in a situation where, by definition, that direct relationship is lacking.

The difference is reflected in the role of thisCourt in reviewing the judge's order on these two related, but separate, issues, and the conclusion on private interest standingmay attract, by virtue of the different relationships at issue, a lesser level of deference than does the order on public intereststanding. Broadly speaking, it seems to me that the basis for private sector standing admits of little scope for the exercise of discretion,and little deference need be given to a judge of first instance by a reviewing judge.

Where the state engages a person in a court process,under legislation, that person may challenge the constitutional validity of the legislation as part of making full answer and defence, or ofdefending an action. The principle is inextricably entwined with s. 52(1) of the Constitution Act. The question for this Court iswhether the judge was correct in denying private interest standing. (Emphasis added) [23] In my view, whether a party has standing as of right, either by statutory means or otherwise, is a question of law; or, dependingon context, a question of mixed fact and extricable principle of law.

As such, a decision to grant standing on such basis is reviewable ona correctness standard.

Did the reviewing judge err in granting standing? [24] As noted earlier, the reviewing judge granted standing solely on the basis of s. 189 of the MGA. At this juncture, it is helpful toturn to the provision, which reads in its entirety: Procedure for quashing by-law 189

(1) A person may, by notice of motion which shall be served at least seven days before the day on which the motion is to bemade, apply to a judge of the Supreme Court of Nova Scotia to quash a by-law, order, policy or resolution of the council of amunicipality, in whole or in part, for illegality.

(2) No by-law may be quashed for a matter of form only or for a procedural irregularity.

(3) The judge may quash the by-law, order, policy or resolution, in whole or in part, and may, according to the result of theapplication, award costs for or against the municipality and determine the scale of the costs.

(4) No application shall be entertained pursuant to this

Section to quash a by-law, order, policy or resolution, in whole or in part,unless the application is made within three months of the publication of the by-law or the making of the order, policy or resolution, asthe case may be. [25] The appellants advance the following in their written submissions:

Section 189 is meant to grant standing to anyone to attack the validity of a municipal resolution. The Appellants have standingbased on s. 189 of the MGA to bring the conduct of the Municipal Council to a judicial review. (Emphasis added) [26] In their oral submissions before this Court, the appellants submit that as they are residents and ratepayers of the Municipality, s.189 must surely operate to give them standing to challenge municipal action.

As such, they submit that the reviewing judge did not err ingranting them standing on that basis. [27] The same argument has, however, been rejected on a number of occasions where applicants without a direct interest, sought tochallenge municipal action. A series of Nova Scotia Supreme Court decisions have rejected the proposition that s. 189 providesautomatic standing to “any person”; rather, the test for standing arising at common law should be injected into the analysis. [28] In Solid Waste Association of Nova Scotia v.

Halifax (Regional Municipality), 2005 NSSC 89, Hood, J. had the opportunity toconsider s. 189 as it relates to standing and rejected the approach now advanced by the appellants. She wrote: [8] SWANS says the plain meaning of

Section 189 is that anyone, including SWANS, can bring an application to quash a by-law. Alternatively, it says it meets the test for being granted standing. . . . [11] Mr. Merrick says it would not make sense to interpret s. 189 as broadly as Bruce Outhouse, counsel for SWANS, suggests. Hesubmits that, if there is to be a limit, the common law test is the means to determine the limit. He says that there must be clear wordingto oust the court’s discretion to determine what cases come before the courts.

He submits that s. 189 does not have that clear wording. . . . [13] In my view, if a way to limit those who can challenge municipal by-laws is to be found, it must be by using the common law testfor determining standing. [14] I conclude that s. 189 (1) is a procedural provision. Although headings are not determinative in interpreting legislation, I notethat the heading to s. 189 is “Procedure for quashing by-law”. Furthermore, s. 189 (1) does not say that “any person” may apply to quasha by-law but “a person” may apply to quash a by-law.

Section 189 does not define who can apply but only how the application is made. In my view, it does not provide as of right standing to anyone seeking to challenge municipal by-laws. [29] Justice Hood then proceeded to consider whether the test for public interest standing was met by the plaintiff, relying on anumber of Supreme Court of Canada authorities, including Canadian Council of Churches v. Canada (Minister of Employment andImmigration), (SCC), [1992] 1 S.C.R. 236. The approach as articulated in SWANS has been subsequently followed inHeritage Trust of Nova Scotia v.

Halifax (Regional Municipality), 2007 NSSC 28 and Jacques v. Annapolis Royal (Town), 2006 NSSC264. [30] In the matter before us, the reviewing judge’s analysis stopped with his conclusion that s. 189 alone was sufficient to grant theappellants standing, even though he found they have no personal quarrel with the Municipality. He was provided with the cases notedabove, but did not reference them, choosing instead to rely upon a decision of the Ontario Court of Appeal. With respect, the reasoningin Galganov v. Russell (Township), 2012 ONCA 409, does not support the reviewing judge’s

interpretation of s. 189. [31] In Galganov, two applicants challenged the legality of a municipal bylaw which required that all exterior commercial signs bedisplayed in both French and English. The applicant Brisson owned a business in the municipality and was directly impacted by the newlanguage requirements. Both at the lower court and on appeal, there was no issue raised as to his standing. The other applicant,Galganov, did not own property, reside or operate a business in the municipality.

The lower court denied him standing, a decision upheldon appeal. [32] Brisson, a person with a private and direct interest, was permitted to challenge the bylaw. This is much different than thepresent instance where the appellants have not asserted a private interest. Rather, they say they are “a person” as contemplated in s. 189of the MGA, and have standing as of right. The reviewing judge’s reliance of the Ontario Court of Appeal’s observation relating to

Brisson’s standing is misplaced. It fundamentally differs from the circumstances before us. [33] I find the reasoning in SWANS to be applicable and persuasive. Clearly, the legislature could not have intended by the use of “aperson” in s. 189(1), that an unlimited number of persons would have the ability to advance court challenges to municipal decisions. Something more is required. Where, as here, the challenging party does not argue a separate private right to bring action, the somethingmore involves a consideration of the principles of public interest standing. In my view, the reviewing judge was incorrect in hisinterpretation of s. 189. That

section does not give rise to standing as of right to “a person” or, as noted by the reviewing judge,“residents and ratepayers”. Should standing have been granted to the appellants on the basis of considerations other than those stated by the reviewing judge? [34] The appellants assert that notwithstanding the reviewing judge’s failure to consider their claim of public interest standing, theyamply meet the requirements to advance their challenge on that basis. Glooscap disagrees. [35] The parties are, however, in agreement that it is the party seeking standing who bears the burden of meeting the requisite test.

The parties are also aligned with respect to the principles engaged in a claim of public interest standing, and the most recent authoritativestatement thereof. In the opening paragraphs of Canada (Attorney General) v. Downtown Eastside Sex Workers United Against ViolenceSociety, 2012 SCC 45, (Downtown Eastside) Cromwell, J. provided a succinct preview: [1] This appeal is concerned with the law of public interest standing in constitutional cases. The law of standing answers the questionof who is entitled to bring a case to court for a decision.

Of course it would be intolerable if everyone had standing to sue for everything,no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do notbecome hopelessly overburdened with marginal or redundant cases, to screen out the mere "busybody" litigant, to ensure that courts havethe benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within ourdemocratic system of government: Finlay v. Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607, at p. 631.

Thetraditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. Inpublic law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approachto public interest standing, guided by the purposes which underlie the traditional limitations. [2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of theparticular circumstances.

The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action hasa real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable andeffective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236, at p. 253.

The courts exercise this discretion to grant or refuse standing in a "liberal andgenerous manner" (p. 253). [36] Relying on the test set out in earlier decisions of the Court, Cromwell, J. emphasized the inter-related nature of the factors to beassessed: [35] From the beginning of our modern public interest standing jurisprudence, the question of standing has been viewed as one to beresolved through the wise exercise of judicial discretion.

As Laskin J. put it in Thorson, public interest standing "is a matter particularlyappropriate for the exercise of judicial discretion, relating as it does to the effectiveness of process" (p. 161); see also pp. 147 and 163;Nova Scotia Board of Censors v. McNeil, (SCC), [1976] 2 S.C.R. 265, at pp. 269 and 271; Borowski, at p. 593; Finlay,at pp. 631-32 and 635. The decision to grant or refuse standing involves the careful exercise of judicial discretion through the weighingof the three factors (serious justiciable issue, the nature of the plaintiff's interest, and other reasonable and effective means).

Cory J.emphasized this point in Canadian Council of Churches where he noted that the factors to be considered in exercising this discretionshould not be treated as technical requirements and that the principles governing the exercise of this discretion should be interpreted in aliberal and generous manner (pp. 256 and 253). [36] It follows from this that the three factors should not be viewed as items on a checklist or as technical requirements.

Instead, thefactors should be seen as interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes. [37] The appellants and Glooscap both invite this Court to now consider the three factors and to determine whether public intereststanding ought to have been granted. The first consideration is whether the appellants have raised, by virtue of their pleadings, a seriousjusticiable issue. This Court has recently considered that factor in Canadian Elevator Industry Education Program v.

Nova Scotia(Elevators and Lifts), 2016 NSCA 80 where Bryson, J.A. observed: [51] In Downtown Eastside, Justice Cromwell elaborated on “serious justiciable issue”: [42] To constitute a “serious issue”, the question raised must be a “substantial constitutional issue” (McNeil, at p. 268) or an“important one” (Borowski, at p. 589). The claim must be “far from frivolous” (Finlay, at p. 633), although courts should not examinethe merits of the case in other than a preliminary manner.

For example, in Hy and Zel’s, Major J. applied the standard of whether theclaim was so unlikely to succeed that its result would be seen as a “foregone conclusion” (p. 690). [52] Justice Cromwell explained that “serious justiciable issue” addressed two related concerns: the appropriateness of judicialresolution of the matter (as opposed to legislative or executive action), and proper use of judicial resources (overburdening the courtswith marginal or redundant suits) (¶¶ 39-41). [53] The Supreme Court did not endorse assessment of the merits of the claim when deciding whether a serious justiciable issue wasraised, (¶ 41).

Nevertheless, it may be difficult in practice to ignore the merits altogether if maintaining the “rule of law” underwritespublic interest standing, as AXA says and Downtown Eastside implies (¶ 31). Certainly, consideration of the merits is how the Ontarioand Manitoba Courts of Appeal resolved this factor in Corp. of the Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), (ON CA), 40 O.R. (3d) 489, ¶ 87 and Rowell v. Manitoba, 2006 MBCA 14, ¶ 50, respectively.

[38] The appellants argue, and Glooscap concedes, that there is a serious justiciable issue to be resolved. They frame the issue aswhether there is a serious issue as to the bylaw text amendment’s legality. With respect, that framing over-generalizes the central issueraised by the appellants in their pleadings and in their submissions.

The more appropriate statement of the central issue is whether thelandowners in Avonport were not given proper notice of the amendment, and accordingly, not afforded procedural fairness. [39] Although I am prepared for present purposes to accept the appellants have raised a justiciable issue, its seriousness isquestionable. Considerations of public interest standing have arisen most notably where constitutional issues are at play, or where thereis a broad or significant impact to the challenged decision or action. [40] In the present instance, the record before the Court is limited.

We know that the challenged text amendment served to addadditional uses to (C11) zones in the Municipality. We know that only two (C11) zones existed – that for which Glooscap had made thesuccessful application for rezoning, and one in Avonport. We know that the appellants have raised procedural fairness concerns only asit relates to the zone in Avonport. It is unclear, however, how many landowners are impacted in Avonport.

An assessment of the“seriousness” of a lack of procedural fairness would surely, in the circumstances of this matter, be informed by whether one landownerwas purportedly ill-treated, or whether it was hundreds. [41] “Seriousness” may also be informed by other factors such as the views of those landowners, whether they had actual notice ofthe proposed amendment, or whether the text amendment would result in alleged harm to them or their properties. An allegation thatprocedural fairness has not been afforded is, arguably, serious on its very face. But as Baker v.

Canada (Minister of Immigration), (SCC), [1999] 2 S.C.R. 817 and the jurisprudence arising therefrom make clear, the importance of procedural fairness andthe level to be afforded is contextually driven. Here, the Court has been provided with very little context to meaningfully assess the“seriousness” of the issue raised. [42] I turn to the second factor. Do the appellants have a real stake or genuine interest in whether Avonport landowners wereafforded procedural fairness?

It is here where concerns regarding the use of scarce judicial resources and the need to screen out “themere busybody” are engaged (Downtown Eastside, at para. 43). This factor also considers how the party seeking public interest standinghas a concern which surpasses that of the general public (Canadian Elevator, at para. 63). [43] Neither the record nor submissions give the Court any indication of why the appellants have an interest, beyond that of anyoneelse, in the treatment of Avonport landowners.

Although the appellants most certainly have a general interest in the validity of the bylawtext amendment, the genuine interest must be in the justiciable issue. What was pled as the issue for determination was whetherAvonport landowners had been afforded procedural fairness. [44] The third factor considers whether there are other means for the matter to be advanced. Cromwell, J. expands on this inDowntown Eastside as follows: [50] The Court's jurisprudence to date does not have much to say about how to assess whether a particular means of bringing a matterto court is "reasonable and effective".

However, by taking a purposive approach to the issue, courts should consider whether theproposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicialdetermination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding theprinciple of legality. A flexible, discretionary approach is called for in assessing the effect of these considerations on the ultimatedecision to grant or to refuse standing.

There is no binary, yes or no, analysis possible: whether a means of proceeding is reasonable,whether it is effective and whether it will serve to reinforce the principle of legality are matters of degree and must be considered in lightof realistic alternatives in all of the circumstances. [45] Cromwell, J. gives a number of examples of matters which may be of use in assessing whether granting public interest standingis a “reasonable and effective” means of bringing a matter forward, including • The plaintiff’s capacity to bring forward a claim; • Is the case of public interest which transcends the interests of those most directly affected? • Are there realistic alternative means of bringing the issue forward for adjudication which would be a more effective use ofjudicial resources?

This may include considering the existence of those who have a direct interest; • Should those with a more direct interest refrain from bringing action, this may militate against granting standing. [46] I am not satisfied the appellants’ request for judicial review was a reasonable and effective means of addressing the justiciableissue as pled. Given the central issue was a purported lack of procedural fairness to landowners in Avonport, it begs the question as towhy those persons could not more effectively and reasonably advance that cause.

Clearly, they would have a direct interest in their ownright to procedural fairness, and would be presumably better placed to meaningfully advance how such a purported breach gave rise toharm. The appellants have provided nothing to establish that it is more reasonable or effective to permit them to challenge theMunicipality’s purported poor treatment of the Avonport landowners.

Based on the record available, the appellants, in my respectfulview are “mere busybodies” (Downtown Eastside, para.1), to whom standing ought not be granted. [47] Considering the three factors outlined above, I am satisfied that the appellants were not entitled to public interest standing,either as a stand alone grant, or in conjunction with s. 189 of the MGA.

Conclusion [48] Having concluded that the appellants were not entitled to standing, I would allow Glooscap’s cross-appeal. [49] In light of that conclusion, it is not necessary to consider the substantive issues raised by the appellant, the responses thereto, orthe Notice of Contention. I would dismiss the appeal.

[ 50 ] On the appeal, each respondent shall be entitled to costs of $1,250.00, inclusive of disbursements. Having been successful on the cross-appeal, Glooscap is entitled to costs of $1,000.00, inclusive of disbursements, from the appellants. Bourgeois, J.A. Concurred in: Saunders, J.A. Van den Eynden, J.A.