Court of Appeal

                                NOVA SCOTIA COURT OF APPEAL

Citation: Colchester (County) v. Spencer, 2005 NSCA50

Date:  20050318

Docket:  CA 229890

Registry: Halifax

Between:

The Municipality of the County of Colchester

Appellant

v.

Winnifred Spencer

Respondent

Judge:                   The Honourable Justice Hamilton

The Honourable Justice Roscoe, in dissent

Appeal Heard:      January 25, 2005   

Subject:                 Municipal law, Municipal Government Act, s. 352(3)

Summary:             The Municipality applied to the judge in chambers pursuant to s. 352(3) of the Municipal Government Act seeking an order (1) allowing it to enter Mrs. Spencer’s properties, part of which were used in a junk business, to clean them up and (2) restraining her from interfering. The chambers judge inferred that the Municipality was trying to shut down the Spencer’s business with the dangerous or unsightly premises order previously issued. He determined that the wording of the dangerous or unsightly premises order was inadequate to inform Mrs. Spencer of the Municipality’s intention and that the Spencers were not informed of this by the deputy building inspector when they made it clear to him that they interpreted the order as permitting them to continue to carry on their junk business by bringing new inventory onto the properties.  The chambers judge refused to grant the order and the Municipality appeals his decision.

Issue:          Did the chambers judge err in refusing to exercise his discretion to grant the order?

Result:                  Appeal dismissed, Roscoe J. dissenting.

Majority:    There was evidence before the chambers judge to support his inference that the Municipality was trying to shut down the Spencers’ junk yard business. Therefore, this conclusion was not a palpable and overriding error. The chambers judge did not err in concluding the order did not adequately notify the Spencers that the Municipality was trying to shut down their business.  Nor did he err in concluding that the Municipality did not inform the Spencers that bringing new inventory onto the properties would be considered a violation of the order, even after it became aware that the Spencers’ interpretation of the order was that it allowed them to continue to carry on their business in this way.  Section 352(3) provides the judge with a discretion that is broad enough to allow him to consider the fairness of the order being sought on the facts before him, including the adequacy of the notice.

Dissent:       This was an application under s. 352(3), not a judicial review. The property was unsightly and dangerous when the order was made and after the time period set out in the order for the removal of the junk. The Municipality was acting within its jurisdiction. The order was not ambiguous, it required all junk to be removed because it was making the property unsightly and dangerous. The inquiry on an application such as this should be narrow. The chambers judge erred in expanding the review to the merits, fairness and intent of the Municipality’s order. Once the Municipality has jurisdiction, the application should have been confined to review for obvious or blatant error in process and the order sought should have been granted.