West Hants v. N.S. Utility (2016), 375 N.S.R.(2d) 95 (CA);
1182 A.P.R. 95
MLB headnote and full text
Temp. Cite: [2016] N.S.R.(2d) TBEd. JL.006
Municipality of the District of West Hants (appellant) v. The Nova Scotia Utility and Review Board and the Attorney General of Nova Scotia (respondents)
(CA 450501; 2016 NSCA 57)
Indexed As: West Hants District (Municipality) v. Nova Scotia Utility and Review Board et al.
Nova Scotia Court of Appeal
Beveridge, Bryson and Scanlan, JJ.A.
June 16, 2016.
Summary:
The Town of Hantsport applied for dissolution under Municipal Government Act. At the time, the Municipality of the District of West Hants was undertaking a required boundary review of proposed electoral districts. At a preliminary hearing, the Nova Scotia Utility and Review Board adjourned West Hants’ boundary review pending Hantsport’s dissolution application so that the outcome of the application could be considered in the context of the electoral boundary review. Stantec Consulting Limited was retained to provide a report and make recommendations regarding municipal district boundaries. The Stantec Report contemplated three options, one of which was Hantsport joining West Hants. The Town of 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 Report and the appropriate polling districts and boundaries for the 2016 elections. West Hants filed its boundary review application and requested that the Board implement the Stantec recommendations by incorporating the former Town of Hantsport into an electoral district with geographically proximate communities. The Board refused to implement the recommendations. The Board considered that West Hants and Stantec had not properly addressed the former Town of Hantsport’s “community of interest”. To remedy that omission, the Board added an additional electoral district for the former Town of Hantsport which resulted in West Hants having 10 councillors rather than Stantec’s previously recommended nine. West Hants appealed.
The Nova Scotia Court of Appeal dismissed the appeal.
Administrative Law – Topic 9069
Boards and tribunals – Jurisdiction of particular boards and tribunals – Energy and utility boards – The Town of Hantsport applied for dissolution under Municipal Government Act – At the time, the Municipality of the District of West Hants was undertaking a required boundary review of proposed electoral districts – The Nova Scotia Utility and Review Board adjourned West Hants’ boundary review pending Hantsport’s application so that the application’s outcome could be considered in the context of the electoral boundary review – Stantec Consulting Limited provided a report and made recommendations regarding municipal district boundaries – The Town of 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 Report and the appropriate polling districts and boundaries for the 2016 elections – West Hants filed its boundary review application and requested that the Board implement the Stantec recommendations by incorporating the former Town of Hantsport into an electoral district with geographically proximate communities – The Board refused to implement the recommendations – The Board considered that West Hants and Stantec had not properly addressed the former Town of Hantsport’s “community of interest” – To remedy that omission, the Board added an additional electoral district for the former Town of Hantsport which resulted in West Hants having 10 councillors rather than Stantec’s previously recommended nine – West Hants appealed, asserting that the decision resulted in a voter variance (minus 26%) that was inconsistent with the guidelines previously established by the Board – The Nova Scotia Court of Appeal dismissed the appeal – Community of interest was one of the guidelines established by the Board – A variance in voter parity was permissible, if justified – West Hants asserted that the Board made the community of interest finding without any evidence beyond the representations of an interest group – The Board was entitled to receive any information that might assist it to deal with the matter – The court had no jurisdiction to overturn a finding of fact which had evidentiary support – The Board noted that a plus/minus 25% variance should only apply in “exceptional cases” and that the strong community interest made this such a case – That finding was reasonable – The Board considered its guidelines and the Stantec Report – It considered council size, polling districts and voter parity – Nine councillors would have resulted in a minus 33% variance for the former Town, assuming it elected its own councillor – The Board’s decision was a compromise to reduce the negative variance – See paragraphs 17 to 30.
Administrative Law – Topic 9069
Boards and tribunals – Jurisdiction of particular boards and tribunals – Energy and utility boards – The Town of Hantsport applied for dissolution under Municipal Government Act – At the time, the Municipality of the District of West Hants was undertaking a required boundary review of proposed electoral districts – The Nova Scotia Utility and Review Board adjourned West Hants’ boundary review pending Hantsport’s application so that the application’s outcome could be considered in the context of the electoral boundary review – Stantec Consulting Limited provided a report and made recommendations regarding municipal district boundaries – The Town of 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 Report and the appropriate polling districts and boundaries for the 2016 elections – West Hants filed its boundary review application and requested that the Board implement the Stantec recommendations by incorporating the former Town of Hantsport into an electoral district with geographically proximate communities – The Board refused to implement the recommendations – The Board considered that West Hants and Stantec had not properly addressed the former Town of Hantsport’s “community of interest” – To remedy that omission, the Board added an additional electoral district for the former Town of Hantsport which resulted in West Hants having 10 councillors rather than Stantec’s previously recommended nine – West Hants appealed, asserting that the Board failed to follow the process set out in its dissolution decision – The Nova Scotia Court of Appeal dismissed the appeal – The boundary review Board felt that West Hants should have solicited further public input and “some form of additional Report” should have been conducted – There was nothing in the Municipal Government Act or the Board’s dissolution decision and order that purported to curtail the Board’s jurisdiction when hearing the boundary review – 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 – See paragraphs 31 to 40.
Administrative Law – Topic 9069
Boards and tribunals – Jurisdiction of particular boards and tribunals – Energy and utility boards – The Town of Hantsport applied for dissolution under Municipal Government Act – At the time, the Municipality of the District of West Hants was undertaking a required boundary review of proposed electoral districts – The Nova Scotia Utility and Review Board adjourned West Hants’ boundary review pending Hantsport’s application so that the application’s outcome could be considered in the context of the electoral boundary review – Stantec Consulting Limited provided a report and made recommendations regarding municipal district boundaries – The Town of 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 Report and the appropriate polling districts and boundaries for the 2016 elections – West Hants filed its boundary review application and requested that the Board implement the Stantec recommendations by incorporating the former Town of Hantsport into an electoral district with geographically proximate communities – The Board refused to implement the recommendations – The Board considered that West Hants and Stantec had not properly addressed the former Town of Hantsport’s “community of interest” – To remedy that omission, the Board added an additional electoral district for the former Town of Hantsport which resulted in West Hants having 10 councillors rather than Stantec’s previously recommended nine – West Hants appealed, asserting that the Board failed to properly consider its boundary review application and the Stantec Report – West Hants asserted that the Report and the its application were prepared in accordance with guidelines set by the Board – The Nova Scotia Court of Appeal dismissed the appeal – There was nothing that legally constrained the Board from entertaining evidence, making findings, and requiring additional studies if it thought such actions were justified – It was not required to “rubber stamp” the Stantec Report or the West Hants’ council decision – The Board was influenced by the submissions of an interest group and the unresolved community disquiet which the Stantec Report noted – It was not persuaded that Hantsport residents were previously focused on the question of post-dissolution representation – The Board’s solution was a practical one – Nothing implied that it was a permanent resolution – Although the decision resulted in a minus 26% voter variance in the former Town’s electoral district, the Board provided community interest as a clear reason for the variance – That reason had legal foundation in the Act and was based on evidence and submissions in the record – See paragraphs 41 to 49.
Municipal Law – Topic 205
Councils – General principles – Number of councillors – [See all
Administrative Law – Topic 9069
].
Municipal Law – Topic 7703
Boundaries – General – Ward boundaries – [See all
Administrative Law – Topic 9069
].
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).
This appeal was heard and decided at Halifax, Nova Scotia, on June 16, 2016, by Beveridge, Bryson and Scanlan, JJ.A., of the Nova Scotia Court of Appeal. Bryson, J.A., delivered the following written reasons for judgment on July 13, 2016.
