q SUPREME COURT Citation: Bancrout v. Nova Scotia Between: Rober Bancroft and Eastern Shore Nova Scotia Minister of Lands The Attorney General of Nova Scotia In Right of the Province Judge: The I lonourable Justice Heard: June 29, 2020, in Halifax, ‘Vritten Decision: August 5, 2020 Counsel: James Simpson, Counsel Jack Townsend. Counsel OF NOVA SCOTIA (Lands and Foresirvi. 2020 NSSC 114 Date: 20200805 Docket: HEx. No. 496023 Registry: Halifax Forest Watch Association Applicants and Forestry and representing Her Majesty the Queen of Nova Scotia Respo;/enis Kevin Coady Nova Scotia for the Applicants for the Respondents
By the Court: Background [I] On January 31,2020, the Applicants “extend the six-month time limit per Civil intention to seek judicial review “of the decision Lands and Forestry to delist Owl’s Head Provincial and Protected Areas Plan of2013”. (PAPA) Civil Procedure Rule 7.05(l) states: A person may seek judicial review ofa decision review before the earlier of the following: (a) twenty—five days after the day the person; (b) six months after the day the decision Furthermore, Civil Procedure Rule 2.03 states: (I) A judge has the discretions, which are in Rules 2.03(2) and (3). to do any of the (c) excuse compliance with a Rule, period provided in a Rule and to The Applicants submit that the Provincial Government’s without public awareness due to a secret process This process attracts cabinet confidentiality Page 2 filed a Motion seeking an Order to Procedure Rule 7.05(1)”. It was their by the Nova Scotia Minister of Park Reserve from the Parks by filing a notice forjudicial decision is communicated to the is made. limited by these Rules only as provided following: including to shorten or lengthen a dispense with notice to a party. decision was made referred to as a “Letter of Offer”. and, as such, does not appear in
conventional Provincial Government reports. legislation. [2] PAPA legislation allows for the designation Parks or Park Reserves. The latter designation lands that, in the future, may become Provincial reserve prior to delisting. It is now classilied [3] The evidence on this Motion clearly portrayed to the public as a Provincial Park. maps. going back as far as 1978, refer to the Further, it was managed by Lands and Forestry public had every reason to assume Owl’s Head therefore, attracted protections not available [41 The delisting of the Owl’s head Provincial 13. 2019. by’ way of a minute letter issued by request of the Minister ol’ Lands and Forestry. Applicants wish to challenge by way ofjudicial [5J In late 2019 UBU journalist. Michael information related to the Province’s plans Page 3 It is accessible through FOIPOP of areas as either Provincial creates a sort of holding pen (hr Parks. Owl’s [lead was a park as general Crown land property. establishes that Owl’s I lead was Government documentation and area as “Owl’s I lead Provincial Park”. to maintain its reserve status. Thc was a Provincial Park and. on Crown lands. Park Reserve occurred on \larch the Provincial Treasury Board at the It is this decision that the review. Gomian, made a FOIPOP request (hr for the development of the Owl’s I lead
property. lie published the response, which December 18, 2019. Subsequently, on December was published on the Province’s Freedom of AppI ieants position that this represents [lie available to the public. Mr. Banerofi filed Shore Forest Watch Association joined the [6] There can be no question that the Applicants’ filed beyond the six—month limitation as stipulated 7.05(1 )(h). It was not filed in advance of September secrecy of the decision precluded any member responding within the six—month window. suggests the Applicants were dragging their Gorman’s December IX. 2019 news report [7] It appears as ifthe Applicants Notice the 25-day window stipulated in Civil Procedure of time is governed by Civil Procedure Rule as the day the decision was communicated would have to be filed by January 23. 2020.Page 4 included the minute letter, on 23, 2019, the same information Information portal. I accept the earliest date that this information was his Notice on January 30. 2020. Eastern Application on January 31. 2020. Notice ofJudicial Reiew was in Civil Procedure Rule 13. 2019. 1 Fowever. the of the public &om legally There is nothing in the evidence that feet. They responded to Mr. in a timely manner. of’Judicial Review was filed outside Rule 7.05(1 )(a). The calculation 94.02. III accept December IX. 2019 to the person’. the Applicants Notice
[XI The Applicants are advocates for the IX, 2019, had some knowledge of’discussions [lead property. They may have felt unconcerned the property was a fully protected Provincial as the earliest the Applicants could be aware propeily. Consequently, they are outside the [9] In Bridqeniter (Town) i’. Soul/i Shore 25. justice Lynch commented as Follows, at The tirst question ilien was when does the was the decision oF the School Board communicated! argued that it was not until the whole Council it was clear that the mayor had commented happened. Wednesday. September 25. 2016. that case law, is when Council kne oF the communication necessary. It is when they media reported on it and I can accept. as I indicated not C\ ervone would know that night. There 3id hut, as I indicated before, that is still out Town was between one and four days out oF Justice Lynch’s comments support my decision date of communication to the public. [10] The test for using my discretion under forth in .Iollj’more Estate ;‘. Jollj’,nore, 2001 Page 5 environment and, prior to December around development of the Owl’s it’ they were under the impression Park. I consider December IX. 2019 of the Pmvince’s decision to delist the 25-day period. Regional School Board, 2017 NSSC para. 8: period start In run 11w fling. So. when The Town oF Briduewater knes . not just the Mayor, although on the decision on the day it As I said. communical ion, bused on decision, there is no special knots September 2ISU . is also when the to en tinsel iii argu (lie nt. tli at could have been at least until October of time. It is clear days and so the time in tiling. to set December IX. 2019 as the Civil Procedure Rule 2.03(1 )(c) is set N SCA 116:
I. The Applicant had a hona lick appeal existed; 2. The Applicant had a reasonable launched the appeal within the 3. There are compelling or exceptional would warrant an extension of there is a strong case for error appellate interference. .Jdllj’nwre states there is a fourth part of the 4. Where justice requires that the allow an extension of time even iii et. The same Court indicated, in Farrell i cusuvant, weight to be given to these and other factors flexible, uninhibited by rigid guidelines. [Ill In R. p. MiwLen,,, 2018 NSCA I, Justice follows:Page 6 intention to appeal when the right to excuse for the delay in not having prescribed time; and circumstances present which tinie. not the least of’which being that at trial and real grounds justifying test: Application be granted, the Judge may if the three-part test is not strictly 2010 NSCA 71. thai the relative may vary, and the test should be Derrick commented at para. 18 as
Pursuant to section 67( 2) of the C’,’in,i;sui a judge of the Court ol’ Appeal has the discretion Notice of Appeal. The discretion must he interests of justice and is structured liv such appeal. a reasonable excuse 11w the delay. the merits of the proposed appeal. CR. i’. RaAL. Civil Procedure Rules 91.04 and 2.03(2) are [12] In Lois’ r. Nova Scotia Police &n,rplaints Justice Smith applied the principle of”discoverability” limitation period was held to stan only alier of’ Information Report. She relied on Pioneer 42. and staled at para. 2$: In Pionc’cs’. the majority of the Court afimied subject to a rule of diseoverabilitv. such that the purpose of the running ol’ a Ii mi tat ion period the cause of action is based have been discovered, discovered by the exercise of reasonable diligence. rule of construction to aid in the interpretation In this case the Court applied the discoverahility limitation period in the Conpetiiimz Act. The In detemiining whether a limitation period knowledge of the injun’. such that discos erability to prevail: even where the statute does not period runs Ii’om tlie accrual of’ the cause of it is evident that the operation o ‘a Ii ui tattoo upon accrual of a cause of action or knowledge statutory lcxl is necessary to oust its application. Court applied its diseoverahility rule to 2600) Page 7 (‘ac/c and (‘liii Pruccdurt’ lOs/c 91 .04. to extend the Lime 11w tiling a exercised in accordance with the factors as a genuine iitcntion to whether any prejudice will arise, and 20/i NM’ I e 39. similar in their import. (‘onisnissioner. 2020 NSSC 113. to a complaint wherein the the complainant recd ed a Freedom Corporation 1’. Godfrs.y. 2019 SCC that limitation periods may be a cause ofaction will not accrue 11w until the material liicts on which or ought to have been The disco’.erahilitv rule is a of statutory limitation periods. principle to extend the two—year Cou r slated hi rther at pata. 36: runs from the accrual of act ion or applies, substance, not Ibmi. is explicitly’ slate that the limitation action’. discovcrahi litv will apply it’ period is. in substance, conditioned of an injun’. Indeed, clear In PcLwisv. br example. this of the Iflghwur I*n//kicr.
R.S.O. I 990 c. H.X. which stated that an action years of the time when damages were sustained’ damaues were sustained’ rather than ‘when distinction without a difference’. as it was that the I imitation period should run without It is my view that discoverability is recognized Pi-ocedure Rule 7.05(1 )(a). I conclude that Bar. [13] In conclusion I find as follows in relation The Applicants had a bonn Me 2. Application of lhe cliscoverability Applicants delay amounts to 3. The Applicants have a reasonable nature of the process); 4. The Applicants will suffer prejudice whereas the Respondent will suffer granted: and 5. The Applicants have a well—reasoned and it should be heard on the merits. On point 5 above. I adopt Justice Lynchs comments Page 8 must he commenced within two (para.2). The use oUhe phrase the cause of action arose’ was a unlikely that the legislature intended the plainti Ifs knowledge ( para. 35). in the 25—clay window in Civil cliscoverability applies in the case at to the test: intention 10 appeal: principle indicates that the a matter of clays: excuse for the delay (i.e.. secretive if’the extension is not granted, little prejudice iI’the extension is Application for .ludicial Re’ iew in BridgL’lI’utcr at pam. 34:
Having said that the niatter can go Ihrward is not a decision on the merits of the judicial cases to win. Lt ts always diflicutt when seeking reasonable standard. The decision would range and I am not deciding that toda I am are being granted or not and I dismissed the Conclusion [14J In light of’ these conclusions. I grant Notice of’ Judicial Review. I direct that Ii! date of this decision. CoiPage 9 I want everyone to understand that this review. Judicial re’ tews are di F icult a judicial revie\ because it isa ha e to be whether or not it is within just deciding whether the motions motions. [lie Applicants an extension to lile their v.jihin 14 days of the
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