NOVA SCOTIA COURT OF APPEAL
Citation: Antigonish (County) v. Alva Construction Ltd.,
2010 NSCA 52
Docket: CA 323179
Registry: Halifax
Between:
Municipality of the County of Antigonish
Appellant
v.
Alva Construction Limited
Respondent
Judges: Saunders, Beveridge and Farrar, JJ.A.
Appeal Heard: June 9, 2010, in Halifax, Nova Scotia
Written Judgment: June 10, 2010
Held: Appeal dismissed per oral reasons for judgment of Saunders, J.A.; Beveridge and Farrar, JJ.A. concurring.
Counsel: Donald Macdonald, for the appellant
John Kulik, Q.C., for the respondent
Reasons for judgment: (Orally)
[1] Mr. Kulik, we need not hear from you this afternoon. While we agree that the appellant has raised an arguable issue warranting leave to appeal, we are unanimously of the opinion that the appeal ought to be dismissed.
[2] The single issue on appeal is whether a Municipality may enforce a by-law through civil litigation, after it has failed to use the enforcement provisions contained within the by-law itself.
[3] The parties appeared in Chambers before Nova Scotia Supreme Court Justice Nicholas M. Scaravelli and asked him to decide this issue based upon an Agreed Statement of Facts. The question they posed pursuant to Civil Procedure Rule 12.02 read:
Can the Plaintiff, the Municipality of the County of Antigonish, seek to recover tipping fees for the deposit of solid waste from the Defendant corporation by means of a civil proceeding where it has not initiated a prosecution under the by-law which imposes the fees, and is now, because of the passage of more than six months from the date of the alleged offence, unable to start such a prosecution?
On the motion to determine this question it is to be assumed, for the purpose of the motion only, that the Defendant deposited the waste at a place other than the facility designated under the by-law, contrary to that by-law.
[4] Scaravelli, J. held that it could not. We agree. Based on the circumstances before him, as stipulated in the Agreed Statement of Facts, we think his decision, now reported at 2009 NSSC 405 was correct. The appeal is dismissed with costs in the amount of $750, inclusive of disbursements payable to the respondent.
Saunders, J.A.
Concurred in:
Beveridge, J.A.
Farrar, J.A.