Date: 19970731 Docket: C.A. 140187
NOVA SCOTIA COURT OF APPEAL
Cite as: Truro Development Corp. v. IPCF Properties Inc., 1997 NSCA 125
BETWEEN:
TRURO DEVELOPMENT CORPORATION ) Peter M. Rogers
LIMITED ) for the Appellant
)
Appellant ) Peter McDonough, Q.C. and
) Peter Bryson
- and - ) the respondent
) IPCF Properties Inc.
)
) John R.M. Akerman, Q.C. ) and Gary Richard
) for the Respondent
IPCF PROPERTIES INC., THE TOWN OF ) Town of Truro
TRURO, THE TRURO RESIDENTS )
ASSOCIATION and THE NOVA SCOTIA )
UTILITY AND REVIEW BOARD )
)
Respondents ) Application Heard:
) July 30th, 1997
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) Judgment Delivered:
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BEFORE THE HONOURABLE JUSTICE BATEMAN IN CHAMBERS
BATEMAN, J.A.: (in Chambers)
The appellant, Truro Development Corporation Limited, has appealed from the decision of the Nova Scotia Utility and Review Board dated July 18, 1997. In that decision the Board dismissed the appeal and affirmed the February 3, 1997 decision of Council of the Town of Truro to enter into a development agreement with the respondent, IPCF Properties Inc., permitting the construction of a Superstore in downtown Truro.
The Town of Truro joins IPCF Properties in opposing the application for a stay. The appellant asks that this Court grant a stay of execution of the Board’s decision pending appeal. In addition to this appeal, on July 28 1997, the appellant commenced certiorari proceedings in the Supreme Court in relation to the decision of the Board and was unsuccessful, before a judge of the Supreme Court, on an application for an interlocutory injunction prohibiting the respondent’s continued development of the project pending hearing of the certiorari application.
The TBDC is an incorporated body with the primary purpose of development and revitalization of the downtown of Truro. Its membership consists of the retail and other commercial businesses in the downtown core. In relation to the development of the Superstore, the TBDC is particularly concerned about the significant negative impact that will be caused by increased traffic volume. The TBDC appeals, in part, on the basis that Council, in agreeing to enter into this development agreement without adequately addressing the traffic issue, acted in a manner inconsistent with Truro’s Municipal Planning Strategy. The Board, however, in dismissing the appeal and affirming the development agreement, found that Council’s decision was consistent with the intent of the Municipal Planning Strategy.
LAW:
The application for the stay of execution is made pursuant to Rule 62.10 which provides:
(1) The filing of a notice of appeal shall not operate as a stay of execution of the judgment appealed from.
(2) A Judge on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution of any judgment appealed from or of any judgment or proceedings of or before a magistrate or tribunal which is being reviewed on an appeal under Rules 56 or 58 or otherwise.
(3) An order under Rule 62.10(2) may be granted on such terms as the Judge deems just.
The test to be applied in determining whether or not to grant a stay is that stated by Hallett, J.A. in Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R. (2d) 341 (C.A.) at pp. 346‑347:
A review of the cases indicates there is a trend towards applying what is in effect the American Cyanamid test for an interlocutory injunction in considering applications for stays of execution pending appeal. In my opinion, it is a proper test as it puts a fairly heavy burden on the appellant which is warranted on a stay application considering the nature of the remedy which prevents a litigant from realizing the fruits of his litigation pending the hearing of the appeal.
In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either:
(1) satisfy the court on each of the following:
(i) that there is an arguable issue raised on the appeal;
(ii) that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to, or cannot be compensated for by a damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages but also whether if the successful party at trial has executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect, and
(iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; the so‑called balance of convenience or:
(2) failing to meet the primary test, satisfy the court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case.
Analysis:
The respondents oppose the application for a stay both on the merits and on the basis that to seek a stay is an abuse of process in view of the unsuccessful application for an injunction.
I agree with the respondents that the appellant is, in essence, seeking an injunction, preventing the progress of the Superstore construction. The operative part of the proposed order sought by the appellant is:
The Order of the Utility and Review Board dated July 23, 1997 affirming a decision of the Council of the Town of Truro to enter into a development agreement with IPCF Properties Inc., is hereby stayed and the parties to the proposed development are hereby enjoined from carrying out any construction on the proposed development, pending disposition of the within appeal.
In oral submission counsel for the appellant advised that, in his view, the condition contained in the draft order is not essential and that the appellant would be satisfied with wording which simply granted a stay. It is the appellant’s submission that it is the intent of the Planning Act, R.S.N.S. 1989, c. 346 that all action on a development agreement be stayed until all appeals are exhausted. He relies principally upon s. 75 of the Act which provides:
An agreement pursuant to Section 55 or 56 shall not be entered into until
(a) the time for appeal has elapsed; or
(b) any appeals have been disposed of and the resolution has been affirmed by the Board.
The appellant submits that at the time of the drafting of the Planning Act, there was available only a discretionary appeal (leave required) from an order of the predecessor Nova Scotia Utility and Review Board. There is now, however, pursuant to s. 30(1) of the Utility and Review Board Act, S.N.S., 1992, c.11, an appeal as of right from an order of the U.R. Board on any question of law or jurisdiction. The appellant urges that I interpret the wording of s. 75 to include a moratorium on development pending exhaustion of all appeals, rather than limiting it to its plain wording, which clearly contemplates only completion of any appeal to the Board.
I sympathize with the appellant’s concern that if the Superstore is constructed prior to disposition of this appeal, it may face a potentially insurmountable hurdle. In the appellant’s submission, the appeal will be rendered moot because it is unlikely that the store would be ordered demolished. On the other hand, however, my threshold concern, is that the stay sought, if granted, would not effect the desired injunctive relief. On Thursday, July 31 1997, the Board having affirmed the Town’s decision consistent with s. 75 of the Planning Act, the Town of Truro and IPCF Properties Inc. entered into the development agreement. A stay of the Board’s decision dismissing the appeal would leave the development agreement unaffected. Only if I attached a condition enjoining further action on the development permit, would the stay have the impact sought.
In Re Apotex Inc. and Attorney-General for Ontario et al. (1986), 54 O.R. (2d) 286 (Ont.C.A.), the appellant’s application to the Divisional Court for judicial review of a regulation removing a drug from the Ontario drug plan was dismissed. The appellant sought an order staying the decision of the Divisional Court and declaring, pending appeal to the Court of Appeal, that the drug remain listed. Finlayson, J.A. , in Chambers, considered the application of Ontario Rule 63.02(1) which is similar to our Rule 62.10. He wrote at p. 286:
In my opinion rule 63.02 contemplates that terms may be imposed on the applicant seeking the indulgence as a condition of receiving such indulgence. A stay is by its nature negative and not affirmative and I have great difficulty in contemplating how in the circumstances of this case a stay, however framed, could bring about the result the applicant seeks. On my opinion I have no authority under rule 63.02 to impose the condition on the respondents which the applicant seeks.
The words of Finlayson, J.A. capture my concerns here. I am not persuaded that the granting of the stay without a further injunctive condition effects any relief. I am not satisfied that under Rule 62.10 I have the authority to attach the condition sought by the appellant prohibiting action on the development permit.
As I am not satisfied that this is an appropriate matter for the issuance of a stay, it is unnecessary to move on to an application of the Fulton test.
Disposition:
Accordingly, the application is dismissed. Costs shall be in the cause.
The appellant’s concern is that once the Superstore is constructed, which is likely to occur before the appeal is heard, it will render the appeal moot. He relies, therefore principally upon the “exceptional circumstances” heading of the test applicable to a stay. I have not been presented with any authority, however, that convinces me that should the development agreement be found not to conform to the Municipal Planning Strategy, I will assume, without deciding that the threshold test has been met, that there be an arguable issue advanced by the appellant.
I am not satisfied, however, that if a stay is refused the appellant will incur irreparable harm that is not susceptible to being compensated by an award of monetary damages, nor that the balance of convenience favours the appellant. As to the harm that will be suffered by the appellant if the stay is not granted, the appellant submits that: “Once the store is constructed pursuant to a development permit issued by the Town, the owner may acquire vested rights notwithstanding a subsequent reversal of the decision of Council to authorize the Development Agreement. From any practical point of view, the appeal becomes moot if the store has been constructed.” The appellant says that the potential mootness of the appeal is either evidence of irreparable harm or an exceptional circumstance warranting the granting of the stay. The appellant submits, as well, that the stay should be granted because the Supreme Court decision on the certiorari will likely be appealed to this Court by the unsuccessful party in which event, it should be heard concurrently with this appeal.
It bears noting that the appellant is not prepared to make an undertaking to pay damages to the respondent, if ultimately unsuccessful on the appeal. While this point is not decisive, it is a factor to be considered.
Bateman, J.A.
C.A. No. 140187
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
TRURO DEVELOPMENT CORPORATION
LIMITED )
)
Appellant )
- and - )
) BEFORE THE
IPCF PROPERTIES INC., THE TOWN ) HONOURABLE
OF TRURO, THE TRURO RESIDENTS ) JUSTICE BATEMAN
ASSOCIATION and THE NOVA SCOTIA ) IN CHAMBERS
UTILITY AND REVIEW BOARD ) )
)
Respondents )