SUPREME COURT OF NOVA SCOTIA Citation: Dawgfather PHD v. Halifax (Regional Municipality), 2016 NSSC 104. v. Halifax Regional Municipality

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: Dawgfather PHD v. Halifax (Regional Municipality), 2016 NSSC 104 Date: Docket: Hfx No Registry: Halifax Between: Dawgfather PHD v. Halifax Regional Municipality and Nadia Perry LIBRARY HEADING Applicant Respondent Intervenor Judge: The Honourable Justice James L. Chipman Heard: March 29 and 30, 2016 in Halifax, Nova Scotia Final Written April 4, 2016 Submissions: Written Decision: April 15, 2016 Subject: Administrative law. Application to quash/for a declaration of invalidity. Summary: The Applicant and Intervenor sought to quash and set aside a resolution of the Halifax Regional Municipality Council. The resolution pertained to a bicycle lane pilot project on University Avenue in Halifax. The Applicant and Intervenor argued they would be adversely affected if construction of the bicycle lane went ahead. The Respondent contested the application, arguing that the establishment of a bicycle lane is the function of their Traffic

2 Authority and not Council. They argued that the actions of the Traffic Authority relating to the bicycle lane on University Avenue were in accordance with the requirements of law. Issues: Result: (1) Jurisdiction (2) Whether the application to quash the resolution to approve the construction of a bicycle lane on University Avenue should be allowed? (3) Whether declaratory relief is available? The Court concluded it had jurisdiction over the Application pursuant to: 1. Section 207 of the Halifax Regional Municipality Charter, S.N.S. 2008, c. 39 ( HRM Charter ); and 2. Civil Procedure Rules 38.01(1) and 38.07(5). The establishment of a bicycle lane is a form of traffic regulation within the function of the Traffic Authority and not Council. Council is empowered, under s. 325(1) of the HRM Charter, to close streets. This must be done by policy. But s. 325(1) has no application here because establishing a bicycle lane is not a street closure. The Applicant therefore failed to establish that Council failed to follow a statutory procedure. The Court found the rest of his attacks on the legality of the resolution amounted to criticisms of Council's failure to follow internal procedure, which cannot constitute illegality. Accordingly, the Applicant's application to quash the resolution under s. 207 was dismissed. Determined the Applicant was provided ample participatory rights. Found the Respondent acted reasonably and correctly in adopting the resolution. Accordingly, the Court denied the application for declaratory relief and dismissed the application in its entirety. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

3 SUPREME COURT OF NOVA SCOTIA Citation: Dawgfather PHD v. Halifax (Regional Municipality), 2016 NSSC 104 Date: Docket: Hfx No Registry: Halifax Between: Dawgfather PHD v. Halifax Regional Municipality and Nadia Perry Applicant Respondent Intervenor Judge: Heard: Final Written Submissions: The Honourable Justice James L. Chipman March 29 and 30, 2016, in Halifax, Nova Scotia April 4, 2016 Counsel: Blair Mitchell, for the Applicant and the Intervenor Randolph Kinghorne and Colin Taylor, for the Respondent

4 Page 2 By the Court: Introduction [1] The Applicant and Intervenor seek to quash and set aside a resolution of the Halifax Regional Municipality Council. The resolution pertains to a bicycle lane pilot project on University Avenue in Halifax, Nova Scotia. The Applicant and Intervenor say they will be adversely affected if construction of the bicycle lane goes ahead. [2] The Respondent contests the application, arguing that the establishment of a bicycle lane is the function of their Traffic Authority and not Council. They further say that the actions of the Traffic Authority relating to the bicycle lane on University Avenue are in accordance with the requirements of law. [3] The Applicant lives and works in Halifax. For nearly 20 years, he has operated a hot dog vending business in front of the Dalhousie Student Union Building on University Avenue. [4] The Intervenor is a physically challenged full-time student at Dalhousie University. She requires access to Dalhousie s buildings, including those located on University Avenue. [5] The Applicant and Intervenor argue that the proposed bicycle lane will interfere with the ways they have become accustomed to using University Avenue. Indeed, the Applicant says the proposed bicycle lane will irreparably harm his business, effectively ending the operation of his business from its current site. [6] In his Amended Notice of Application in Court filed February 2, 2016, the Applicant requests an order against the Respondent, as follows: 1. further to the Halifax Regional Municipality Charter S.N.S. 2008, [s.] 207, quashing and setting aside the Resolution of the Council of Halifax Regional Municipality adopted May 12, 2015 ( the Resolution ): (a) to approve the construction of protected bicycle lanes on University Avenue as described in an April 15, 2015 staff report of Halifax Regional Municipality; (b) authorizing the Chief Administrative Officer to enter into an agreement with Dalhousie University for the construction and operation of a

5 protected bike lane on University Avenue as described in the April 15, 2015 staff report. Page 3 2. in the alternative, for an order declaring the Resolution to be of no lawful force or effect; 3. such other order as is just and appropriate in the circumstances. [7] In the Amended Notice, the Applicant and Intervenor set out 21 grounds for the sought after order. In argument, the Applicant and Intervenor emphasize that they were not afforded appropriate participatory rights. They add that this is particularly the case because the situation amounts to a street closure. [8] By Amended Notice of Contest filed February 26, 2016, the Respondent denies the essential grounds and says the application should be dismissed on account of 21 grounds of their own. The Respondent argues that to the extent the Applicant and Intervenor are entitled to participate in the Respondent's processes, sufficient opportunities to do so have been provided. They add that the proposed bicycle lane does not amount to a street closure. Jurisdiction [9] At the outset of the hearing, I questioned the parties concerning their decision to proceed under Civil Procedure Rule 5 (Application) as opposed to Rule 7 (Judicial Review and Appeal). Counsel confirmed they were ad item that the matter was properly brought pursuant to Rule 5. [10] Following the hearing, I requested further submissions on the issue of jurisdiction. The parties submitted briefs and there was to have been an oral hearing on April 5; however, I wrote counsel on April 5, indicating I was satisfied on this point. In my view, the Court has jurisdiction over the Application pursuant to: 1. Section 207 of the Halifax Regional Municipality Charter, S.N.S. 2008, c. 39 ( HRM Charter ); and 2. Civil Procedure Rules 38.01(1) and 38.07(5). Application for Judicial Review [11] Both parties submit that this application should be treated as an application for judicial review. They assert that all of the major requirements have been complied with and any deviations are minor and can be rectified. The parties have not provided any authorities indicating that in Nova Scotia judicial review and its

6 Page 4 consequent remedies are available outside of the context of an application for judicial review. I am not convinced this is the case. However, it is not necessary to decide this point. My analysis focuses on the other bases for taking jurisdiction. Application to Quash [12] Apart from an application for judicial review, the validity of municipal bylaws and resolutions can be attacked in most jurisdictions in Canada by way of a special proceeding, usually called an application to quash. In The Law of Canadian Municipal Corporations, 2 nd ed., looseleaf (Toronto: Thomson Reuters Canada Limited, 2009), Ian Rogers, Q.C. writes at 190.1: There are several ways in which the validity of municipal by-laws and resolutions can be brought into question. In most jurisdictions in Canada, there are special proceedings, usually by way of application to quash, for summarily testing the legality of the legislative acts of local authorities. Applications to quash are authorized by statute and have the advantage of being inexpensive and speedy. [13] And further, at 191.1: Provision is made in some municipal statutes and charters for testing the validity of by-laws and resolutions by direct proceedings instituted for that purpose. The authority which the courts exercise to quash by-laws upon an application made by way of originating motion is entirely statutory in source and extent. Since this is a proceeding unknown at common law, it is not inherent in the jurisdiction of the court as is the power to declare a by-law invalid in an action. A provision in a city charter conferring upon electors the right to apply to quash a by-law for illegality was held to cover the bringing of an action for the same purpose. An application to quash is in the nature of an application for certiorari at least when a by-law is not illegal on its face and the court has a discretion whether to allow it. The statutory power to quash is said to be permissive in its terms so that a person is not obliged to bring a motion to quash in lieu of any other remedy. [14] Notwithstanding the ability to make an application for judicial review to have a by-law declared invalid, an application to quash can still be brought (see Holmes v. Halton (1977), 2 M.P.L.R. 153, 16 O.R. (2d) 263). [15] In Halifax, applications to quash by-laws and resolutions are available pursuant to s. 207 of the HRM Charter: Procedure for quashing by-law

7 207 (1) A person may, by notice of motion that is served at least seven days before the day on which the motion is to be made, apply to a judge of the Supreme Court of Nova Scotia to quash a by-law, order, policy or resolution of the Council, in whole or in part, for illegality. (2) No by-law may be quashed for a matter of form only or for a procedural irregularity. (3) The judge may quash the by-law, order, policy or resolution, in whole or in part, and may, according to the result of the application, award costs for or against the Municipality and determine the scale of the costs. (4) An application pursuant to this Section to quash a by-law, order, policy or resolution, in whole or in part, must be made within three months of the publication of the by-law or the making of the order, policy or resolution, as the case may be. Page 5 [16] Although s. 207(1) provides for a notice of motion, Civil Procedure Rule says this should be interpreted as providing for a notice of application in circumstances where there is no existing proceeding: Application referred to in legislation A person who is permitted or required by legislation to apply to the court or a judge may start the application by filing one of the following notices: (a) an ex parte application, notice of application in chambers, notice of application in court, or notice for judicial review, if the permission or requirement is for an application that is not connected to an existing proceeding; (b) a notice of motion, if the permission or requirement is for an interlocutory step in a proceeding. [17] Because s. 207(3) says that a judge may quash the illegal by-law or resolution, the power to quash is a discretionary one (see Rogers at 191.2). [18] An application to quash under s. 207(1) may be brought only where the bylaw or resolution is being attacked for illegality. Section 207(2) specifically prohibits an application to quash where the by-law or resolution is being attacked for a matter of form only or for a procedural irregularity.

8 Page 6 Application for Declaration of Invalidity [19] A declaration is available on judicial review, or as a stand-alone remedy under Civil Procedure Rules 38.01(1) and 38.07(5): (1) A party may prepare a pleading, claim a declaratory judgment, or obtain particulars of a claim, defence or ground, in accordance with this Rule (5) A party making a claim in an action or an application may plead or apply for a declaration of the legal status or right of a person. [Emphasis added] [20] An action or application for a declaration is an appropriate response to illegal government action, and it has become a popular remedy in public law: Jones de Villars, Principles of Administrative Law, 5 th ed. (Toronto: Thomson Reuters Canada Limited, 2009) at 756. Rogers writes at 192.1: It is well established that the validity of municipal by-laws and resolutions may be incidentally questioned otherwise than by a motion to quash. In particular a by-law may be brought into question in the following ways: by a motion to quash or an appeal from a conviction thereunder; by an action for a declaration that the by-law is invalid; incidentally in the trial of an action; in proceedings to obtain mandamus; in proceedings to obtain prohibition or certiorari or in an action for an injunction to restrain the municipality from enforcing or acting under the bylaw Provisions for quashing by-laws and those similar to s. 200 [of the 1990 Ontario Municipal Act] in other provinces do not oust the jurisdiction of the court to declare by-laws and resolutions invalid or quash them on certiorari [Emphasis added] [21] The Nova Scotia Court of Appeal has held that a judge may grant a declaration under Rule 38.07(5) only where there are no available effectual alternative remedies (see Nova Scotia (Securities Commission) v. Potter, 2012 NSCA 12 at paras , rev g 2011 NSSC 239). Evidence [22] At the outset of the hearing, the parties agreed the following affidavits would be entered into evidence:

9 Page 7 1. Applicant, sworn/affirmed June 1 and 18, 2015; 2. David MacIsaac, sworn/affirmed July 24 and 30, 2015 and March 21, 2016; 3. Taso Koutroulakis, sworn/affirmed September 18, 2015; and 4. David McCusker, sworn/affirmed September 18, [23] Messrs. MacIsaac, Koutroulakis and McCusker are employed by the Respondent. The Applicant, Mr. MacIsaac and Mr. McCusker were cross-examined on their affidavit evidence. The Applicant and Intervenor chose not to crossexamine Mr. Koutroulakis. Applicant [24] On June 12, 2012, the Applicant legally changed his name from Gerald Anthony Reddick to Dawgfather PHD. In Court, the Applicant said he preferred to be addressed as Mr. Reddick and throughout the remainder of this decision I will refer to him interchangeably either as Mr. Reddick or the Applicant. [25] Mr. Reddick s two affidavits are essentially identical in their content and at para. 7 of both he states: I operate my hot dog vending business on the public space in front of the Dalhousie Student Union Building on University Avenue six days a week, every week of the month for all months, with the exception of University breaks for March break, Christmas break and some other similar interruptions; I have done so for 18 years since [26] On cross-examination, the Applicant was shown photographs appended to Mr. MacIsaac s affidavits. The Applicant agreed certain of the photographs depicted his vending operation as it appears on University Avenue. Mr. Reddick agreed his mobile vending cart is located on the sidewalk outside of the entrance to the Dalhousie Student Union Building. As well, he agreed his van is normally parked on University Avenue, parallel to the vending cart. [27] Mr. Reddick was shown photographs of the signage along the area where he typically parks his van. There is a sign marking a taxi stand and to the west of this sign, No Parking signs. Indeed, the photographs make it abundantly clear that the spot where Mr. Reddick normally parks his van on University Avenue is a No

10 Page 8 Parking zone. Notwithstanding this, the Applicant refused to acknowledge this fact and argued that the signs were not really clear. [28] The Applicant went on to explain that Food Safety Regulations require him to keep his van in close proximity to his vending stand. For example, he said that he needs his van to store his bread, which has to be elevated from the ground. When asked whether he would be able to park his van in another spot (in a nearby location), Mr. Reddick answered that he could not leave his vending operation to retrieve supplies when he had a customer in line. In his words, My operation has to be in one spot. [29] On cross-examination, Mr. Reddick acknowledged he is an active user of Twitter. He was then directed to a printed copy of one of his tweets (contained in Mr. MacIsaac s July 24, 2015 affidavit at Exhibit L) of May 12, 2015, which states: For all you folks who drink Hater Aid and think the bike lane will close my business, Wrong!! I was only fighting for my parking spot. [30] Mr. Reddick refused to acknowledge the above tweet pertained to the matter in issue. Rather, he explained that he was at the same time engaged in a dispute with his landlord over a parking spot at his rental accommodation on Shirley Street. [31] Mr. Reddick confirmed that since the summer of 2014, he has been aware of the proposed bicycle lane. As well, he agreed that he attended a March 11, 2015 open house on the subject of the bicycle lane. [32] The open house took place between 4:00 and 8:00 p.m. at LeMarchant Place on 1246 LeMarchant Street, Halifax. To Mr. Reddick s recollection, it was a haphazard affair: There were no chairs, no tables, just a bunch of people walking around. He said he spoke to someone whom he later learned was David MacIsaac, for about 30 or 40 seconds. The Applicant said nothing of substance was discussed. [33] Mr. Reddick was directed to a report entitled Bicycle Lane Partnership with Dalhousie University from the May 12, 2015 meeting of Council (Tab K of Mr. MacIsaac s July 24, 2015 affidavit). In particular, he was shown a passage contained under the Community Engagement portion of the report, reading: There is a concern that the food vendor who has been operating on the South side of University Avenue between Seymour and LeMarchant streets will be displaced.

11 Page 9 [34] When it was suggested to Mr. Reddick that he must have raised the concern, he replied, no, we didn t have that conversation at all. [35] Mr. Reddick was asked about his recollection of the May 12, 2015 Council meeting which addressed, among other things, the proposed bicycle lane. He agreed that in advance of the meeting he contacted Councillors Watts and Mason. Further, Mr. Reddick acknowledged that on the day of the meeting, he submitted a memorandum (Tab J of Mr. MacIsaac s July 24, 2015 affidavit) which his lawyer, Mr. Mitchell, prepared. Mr. Reddick said that he did not make a request to speak at the Council meeting but added, I m speaking in my letter [referring to the memorandum prepared by Mr. Mitchell]. [36] Mr. Reddick recalled that at the May 12, 2015 Council meeting, Councillor McCluskey brought up his concerns, albeit, It was discussed in a very minimal way for about five minutes. Applicant s Credibility [37] In considering a number of Mr. Reddick s answers on cross-examination, I have concerns about his credibility. In particular, when he was shown the No Parking signs, he provided evasive answers. Shown a photograph of a No Parking sign with the arrow clearly pointing to the right, Mr. Reddick insisted on saying the arrow was pointing downwards. This was clearly not the case, and in any event, this would lead to a perverse conclusion, i.e., that one is not permitted to park beneath the street. [38] Mr. Reddick s credibility was further stretched when he was confronted with his tweet to the effect that the bicycle lane would not close his business and that he was only fighting for his parking spot. On a fair reading, and in the context of his previous two tweets of May 12 (also exhibited at Tab L of Mr. MacIsaac s July 24, 2015 affidavit), this tweet obviously pertains to where he typically parks on University Avenue. Mr. Reddick s attempt to relate it to a parking spot on Shirley Street does not withstand scrutiny. [39] Finally, I found Mr. Reddick attempted to downplay his involvement in both the open house and the May 12, 2015 Council meeting. Though he would not admit it when the written records were put to him, the documentation clearly supports the fact that he participated in the process. More will be said about this in the Declaratory Relief Analysis section of this decision.

12 Page 10 Intervenor [40] By order dated January 7, 2016, Nadia Perry was added as an Intervenor. The actual application took place about a month before the order was taken out and the Intervenor was to have made disclosure and be discovered on or before January 8, The Amended Notice adds Ms. Perry to the style of cause and confirms her counsel as being Mr. Mitchell. Amendments pertaining to the Intervenor are made to the grounds for the order, including the following: The Intervenor is a university student and resident of Halifax Regional Municipality. She is in the third year of a degree program in third year student [sic] in a bachelor of science degree (biology) in the University. [para. 1.B] The Intervenor for academic and other purposes requires access to University buildings and facilities including, the University s Rowe Building and Computer Sciences Building fronting on University Avenue, in the area to be affected by the proposed resolution and change. [para. 4.B] The installation and the operation of the protected bike lane will preclude the Applicant from operating the vending stand inclusive of compliance with health requirements and regulations and will impair and impeded and may, depending on snow and ice conditions effectively preclude, the Intervenor s access to University facilities. [para. 6] The Intervenor says that the adoption of the Resolution without consultation and without the opportunity of persons affected by the Resolution to be heard or to be consulted has deprived the Intervenor along with others requiring accommodation for disabilities to be affected the [sic] by the Resolution of the opportunity to be heard or consulted and is in contravention of the principles of procedural fairness and the legitimate expectation that she, with other persons affected, would be afforded the opportunity to be heard. [para. 10.B] [41] The Intervenor and Applicant add that Council s resolution should be quashed and set aside pursuant to the provisions of the Human Rights Act, R.S.N.S. 1989, c. 214.

13 Page 11 [42] During the hearing, there was no reference to Ms. Perry s discovery, whereas discovery excerpts were entered as exhibits in respect of Messrs. MacIsaac and McCusker. Indeed, given the evidence on the application, I have no basis to conclude whether or not Ms. Perry was discovered. In any event, and most significantly, the Intervenor did not file an affidavit. Furthermore, Ms. Perry did not attend the hearing. Consequently, the Court has no evidence from her. [43] In the Amended Notice of Contest, the Respondent has this to say regarding the Intervenor at paras. 18, 29 and 20: The Intervenor is out of time to commence an application in her own right pursuant to HRM Charter section 207, and accordingly she is limited to the role of intervenor and as an intervenor can not challenge the validity of the resolution on grounds (such as the Human Rights Act) which are unrelated to those grounds raised by the Applicant. The impact of the proposed bicycle lane on accessibility by persons with disabilities was reviewed by HRM staff prior to the May 12 th, 2015 resolution and an assessment of the impact of the proposed bicycle lane was outlined in the April 15, 2015 staff report provided to Council in advance of the meeting. The proposed plan to establish the bicycle lane reasonably accommodates the parking requirements of persons with disabilities. Pursuant to the proposal, nine of the ten accessible parking spaces in the affected area would be re-located to nearby side streets with the municipality being prepared to add more on-street accessible parking spaces upon request and there will be an ongoing process over the course of the pilot project to monitor the use of these spots. [44] When I review the entirety of the evidence, I find there is a basis for what the Respondent has set forth in the above quoted paragraphs. Further, accessibility concerns are properly addressed by the Respondent through its Advisory Committee for Accessibility. The Committee s terms of reference are produced as Exhibit A of Mr. McCusker s affidavit. Further, the Committee s July 21 and November 17, 2014 minutes are attached to Mr. McCusker s affidavit as Exhibits B and C. At page 5 of the latter minutes appears this passage: 7.3 Discussion How to ensure street changes (i.e. bike lanes, parking) are considerate of the needs of persons with disabilities The Proposed Changes to Accessible Parking and Taxi Stands on University Avenue was before the Committee.

14 Mr. David McCusker from Strategic Transportation Planning informed the Committee that Dalhousie University has requested that a bike lane be created on University Avenue. It will have a defined plastic divider. There will be a pilot installation for two years. Changes can be made throughout the two years and it can be taken down if the pilot does not go well. All on-street parking on University Avenue and Robie Street will be removed but additional accessible parking spaces created, increasing the number from 2 to 9. Ms. Daley shared that she has heard a number of issues around the Rebecca Cohn Auditorium because the parking will be on the side street but there will not in front where all of the accessible features are located. Councillor Watts stated that there is a larger question around these types of changes being appropriately communicated and that measures need to be taken to ensure that individuals with disabilities are well-informed. Mr. McCusker agreed that having individuals come to the Committee to discuss these sorts of changes would be helpful in a number of circumstances. Mr. Nauffts asked whether or not the Access-A-Bus will be able to pick up and drop off at the university. Mr. Rutt shared that having accessible parking on a side street will be safer for many wheelchair users. He also suggested that if Halifax had an accessibility policy it would be helpful for projects like this. [Emphasis added] Page 12 [45] Mr. Rutt is a member of the Advisory Committee for Accessibility. He works in the Respondent's Human Resources Department and he uses a wheelchair. [46] In all of the circumstances I have determined that nothing is added by Ms. Perry s intervention. Accordingly, I have focused on the Applicant s arguments in the remainder of the decision. David MacIsaac [47] Mr. MacIsaac is currently the Active Transportation Supervisor in the Transportation and Public Works business unit of the Respondent, or Halifax. There are 43 exhibits appended to his three affidavits and this material forms the bulk of the documentary evidence before the Court. [48] Mr. MacIsaac was cross-examined concerning his familiarity with the proposed bicycle lane for University Avenue. He confirmed he was not involved

15 Page 13 with establishing the project s public engagement component. Mr. MacIsaac has, however, been involved with the public engagement processes for other bicycle lane projects in the City. [49] Mr. MacIsaac was responsible for the Respondent s process of public engagement concerning a North-South bicycle corridor, also known as the Windsor Street corridor. He recalled that various options were considered and he spoke to the rather extensive public engagement process. [50] Mr. MacIsaac was shown an eight-page excerpt from the North-South peninsula bicycle corridor public engagement which took place on March 29 and April 3, 2012 (the document was entered as Exhibit 4). He was shown the agenda, depicting five items which were scheduled to take a total of two hours. Mr. MacIsaac recalled the meeting which occurred in, a reserved meeting room for members of the public to attend where staff members were present and that there was a consultant hired to facilitate the meeting. [51] Mr. MacIsaac agreed the North-South public engagement was different from the one that took place in this case. Turning to the latter, he said, [T]o find out more, a person would have to speak to a staff member or observe the five or six display boards and plans. Further, he agreed other options were not presented (as they were for Windsor Street) in respect of University Avenue. [52] Mr. MacIsaac was directed to Tabs G and K of his latest affidavit, containing colour copies of the notice and poster advertising the March 11, 2015 open house. He agreed the text of the two documents is essentially identical and that nothing is said about other options but that rather, only one scenario is addressed. [53] It was Mr. MacIsaac s testimony that Dalhousie University consulted with taxi companies and food service providers (but not Mr. Reddick) concerning the proposed bicycle lane. [54] Next, Mr. MacIsaac was asked about the background concerning the bicycle lane on Rainnie Drive. He said the public engagement involved two public meetings. He gave details surrounding delineator posts and said they are generally intended to keep vehicles out of an area except for the purposes of loading and unloading. While agreeing the public consultation was more extensive than what took place in this case, he recalled the sessions also dealt with discussion of the proposed roundabout. Having said this, he later elaborated that the bicycle lane was

16 Page 14 one of the subjects of the report generated for Council and that three public meetings had taken place. [55] Mr. MacIsaac elaborated as to the genesis of Rainnie Drive's four proposed bicycle routes. He said the Halifax Cycling Coalition initially submitted a petition suggesting one route and a staff report responded with other options. [56] Mr. MacIsaac acknowledged Halifax has yet to put in place bicycle lanes surrounding the one proposed for University Avenue. He was then asked about the public engagement process for the Hollis Street bicycle lane. He recalled there were two public engagement events. Further, whereas the bike lane was initially proposed for the east side of the street, it was ultimately moved to the west side. This decision was made because sightlines for trucks were better on the west, or left-hand side than the east, or right-hand side of the one-way street. Mr. MacIsaac acknowledged the public engagement process was not identical for each of the four bicycle lanes in the city; i.e., Windsor Street, Rainnie Drive, Hollis Street and the one proposed for University Avenue. [57] Turning to the proposed bicycle lane for University Avenue, Mr. MacIsaac acknowledged that there had been an earlier proposal for a bike lane down the centre median. As well, a proposal for a bike lane on the western side had been contemplated. Nevertheless, at the time of the open house, only one option was presented. [58] Questioned further as to why the March 11, 2015 open house was different from other bicycle lane open houses, Mr. MacIsaac listed some advantages. He noted the session went from 4:00 to 8:00 p.m., which he characterized as a long session with great flexibility. He noted eight staff were present and that there were good images and poster boards. David McCusker [59] Mr. McCusker is the Respondent s Regional Transportation Manager. On cross-examination, he was shown the affidavit of Mr. Koutroulakis, the Manager of the Traffic Management division in the transportation and public works business unit of the Respondent. In particular, he was questioned on Exhibit A, a true copy of the University Avenue Cycle Tract Pilot Project approved by Mr. Koutroulakis on September 8, Mr. McCusker described this as a tender-ready design plan of what should happen on University Avenue.

17 Page 15 [60] Mr. McCusker answered questions concerning the installation of the bicycle lane on Brunswick Street. He said that the bike lane was installed inside a row of parking. [61] Mr. McCusker was also involved with the Hollis Street bike lane. Consistent with Mr. MacIsaac, he recalled two public engagement sessions. Mr. McCusker participated in both and agreed there had been options for a bike lane on either the west or east side of the street. He noted that one of the factors favoring the bicycle lane on the left-hand side was due to superior sightlines. [62] Mr. McCusker confirmed that on September 23, 2014, Council originally approved entering into a cost-sharing agreement with Dalhousie University for the construction and operation of the bike lane. He agreed this took place prior to any public engagement. Mr. McCusker noted that Council passed a February 3, 2015 motion referring the matter back to staff to conduct further public engagement. [63] Referring to the proposed bicycle lane on University Avenue, Mr. McCusker allowed, I was aware the C.A.O. wanted this to happen prior to any public consultation. [64] Mr. McCusker said that by the fall of 2014 there were several possibilities identified for the proposed bicycle lane, as follows: 1. a bicycle lane down both the east and west sides of University Avenue; 2. a bicycle lane down the median (involving closure of the median); 3. a bicycle lane on the south side of the east side of University Avenue; 4. placing the bicycle lane on the north side of University Avenue. [65] With respect to delineator posts, Mr. McCusker said, They are to be at three metre intervals with breaks in contiguous placement to facilitate loading of vehicles in front of the Student Union Building and for a pulling-over area for vehicles turning right into the next streets. [66] Mr. McCusker was taken through a series of s and ultimately agreed that the sole option for the public meeting was the current proposed location and design. As for the other options, referring to the public meeting (which he attended), Other alternatives were considered and rejected. Unless someone

18 Page 16 specifically asked about one, they did not come up. I recall people asking about other alternatives. I was asked or overheard. [67] Mr. McCusker was also involved in the North-South peninsula bicycle corridor process and was shown Exhibit 4. He was present at the majority of meetings which discussed this process and characterized this as a different type of project so different meetings were held than the one that took place for University Avenue. Section 207 Analysis [68] As previously stated, in Halifax, applications to quash by-laws and resolutions are available under s. 207 of the HRM Charter. However, there are limits on who can bring an application to quash. Returning to The Law of Canadian Municipal Corporations, at Rogers has this to say: As a general rule, persons whose rights are not affected by a by-law or resolution or who are not legally interested in the determination of its validity cannot impeach it. Conversely, those whose rights are or may be injuriously affected by municipal action may be entitled to oppose it by appropriate proceedings. A private citizen, generally speaking, may not and has not such an interest as will entitle him to launch nullity proceedings unless he can show special injury. [69] Later, at the author states: Historically, the fact that one is a ratepayer implies an interest in all the by-laws of the corporation to which he pays rates and a non-resident ratepayer is therefore entitled to move to quash such by-laws. Courts may grant standing on the basis of public interest. The interest must be beyond mere curiosity and being a busybody. (See Atkins v. Anmore (Village), 2014 CarswellBC 3844, 2014 BCSC 2402 (B.C.S.C.).) [70] Finally, at Rogers says: A person whose interests are or will be adversely affected by the operation of a by-law may attack its validity in an action to which the enacting municipality is a party. (See Bourassa v. Saskatoon [1979] 5 W.W.R. 380, affirmed [1980] 1 W.W.R. 590 (Sask. C.A.); Gilmore v. Westminster (1929) 64 O.L.R. 344; Sarnia v. McMurphy (1920) 47 O.L.R. 496 (C.A.); Cridland v. Toronto (1920) 48 O.L.R. 266, 55 D.L.R. 384.)

19 Page 17 [71] The Applicant has standing to bring an application to quash the resolution because he stands to be directly affected by the bicycle lane. Mr. Reddick is a resident of Halifax and lives and works in the area of the proposed bicycle lane. Although I question (given his May 12, 2015 tweet and the fact that his business is mobile) whether he will be put out of business, Mr. Reddick s hotdog vending stand will undoubtedly be adversely affected by the proposed bicycle lane. The Respondent has conceded his van is more likely to be towed away if it is parked in a bicycle lane, as opposed to a standard no parking spot, and he testified that his business will be affected if he is no longer able to park his van on University Avenue. [72] Under s. 207(1), "A person may apply to a judge of the Supreme Court of Nova Scotia to quash a resolution of the Council, in whole or in part, for illegality." However, "No by-law may be quashed for a matter of form only or for a procedural irregularity." The HRM Charter therefore distinguishes between "illegality" and "procedural irregularity". Rogers explains at 190.1: Regard should be had to the various infirmities or defects in a by-law or resolution and to the effect of a successful attack upon a decision of council so expressed. The courts have not been consistent or careful in their choice of phraseology in describing the legal consequences of a proceeding to annual a by-law. By-laws have been held to be "void," "ultra vires," "illegal," "invalid," "voidable," "bad" and "inoperative" or "ineffectual." Some of these terms are synonymous whereas others have a different legal connotation. Different grounds of attack may produce different results although for all practical purposes, the result may be the same. The term "illegal" applies to all by-laws which can be quashed irrespective of the ground of attack. "Bad" appears to mean the same thing. [A]ll by-laws liable to be quashed are illegal or invalid [Emphasis added] [73] And further at 193.1: The sole ground upon which many courts are authorized to exercise their statutory jurisdiction to quash municipal by-laws is for "illegality". That is the term used in most of the statutes Although it has been said that a by-law can only be challenged if council has acted in bad faith or has exceeded its authority the grounds on which the courts can annul a by-law are not so restricted. Illegality, like fraud, presents itself in a variety of forms. [74] The Applicant's attack on the legality of the resolution is confined to attacks on Council's failure to follow procedure and to afford sufficient participatory rights. Non-observance of obligatory, i.e. statutorily mandated, procedures can amount to

20 Page 18 illegality, but failure to observe internal procedure cannot: Rogers, supra at [75] The Applicant and Intervenor say Council failed to comply with ss. 58(2) and 325(1) of the HRM Charter. Section 58(2) says: 58 (2) The Council may exercise any of its powers and duties by resolution unless a policy or a by-law is required by an enactment. [76] Section 325(1) provides: 325 (1) The Council may, by policy, permanently close any street or part of a street and the Council shall hold a public hearing before passing the policy. [77] The Applicant argues that a bicycle lane amounts to a street closure, and therefore a policy authorizing the bicycle lane is required. The Respondent argues that the establishment of a bicycle lane is not a street closure within the function of Council, but rather, it is a form of traffic regulation within the function of the municipal traffic authority. For the reasons that follow, I find the Respondent's position is the correct one. [78] The Motor Vehicle Act, R.S.N.S. 1989, c. 293 ( MVA ), provides for the regulation of traffic and parking by municipalities. Within Halifax, such regulation is conducted by the HRM Traffic Authority, appointed by Council. Section 86 of the MVA provides for the appointment of a municipal traffic authority: 86 (6) The council of a city or town may, from time to time, appoint the city or town manager, the chief of police, or some other official of the city or town, to be the traffic authority for the city or town. (12) Subject to subsection (13), the traffic authority for a city or town shall have, with respect to all highways within the city or town, all the powers conferred upon a traffic authority by or under this Act. [79] Section 89 of the MVA provides for regulation of traffic and parking by signage erected by the traffic authority: 89 (1) Subject to such authority as may be vested in the Minister, the Registrar or the Department, traffic authorities in regard to highways under their respective authority may cause appropriate signs to be erected and maintained designating

21 business and residence districts and railway grade crossings and such other signs, markings and traffic control signals as may be deemed necessary to direct and regulate traffic and to carry out the provisions of this Act. Page 19 [80] In addition to MVA s. 89(1), the traffic authority derives power to establish a bicycle lane from s. 90: 90 (3) The traffic authority may also mark lanes for traffic on street pavements at such places as he may deem advisable, consistent with this Act and may erect traffic signals consistent with this Act to control the use of lanes for traffic. [81] The Act defines bicycle lane at s. 2(ca) as: (ca) bicycle lane means a marked lane on a roadway designated by a traffic sign for the use by bicyclists; [82] The effect of a bicycle lane on the operation of a motor vehicle is provided for in MVA s. 131A: 131A The driver of a vehicle shall not operate the vehicle in a bicycle lane unless (a) it is necessary to do so to go around a vehicle or a bicycle immediately in front of the driver s vehicle that has signalled its intention to turn left; (b) it is necessary to do so to complete a lawful manoeuvre; or (c) the driver has encountered a condition on the roadway, including a fixed or moving object, parked or moving vehicle, pedestrian, animal or surface hazard that makes it impracticable not to do so, but in that event shall yield the right of way to any cyclist lawfully in the bicycle lane. [83] Additionally, MVA s. 143(2) provides : 143 (2) It shall be an offence for the driver of a vehicle to park the vehicle, whether attended or unattended, in a bicycle lane, except in compliance with the directions of a peace officer. [84] Parking is defined in MVA s. 2(am) as follows: 2 (am) parking means the standing of a vehicle whether occupied or not, upon a roadway, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading, or in obedience to traffic regulations or traffic signs or signals;

22 Page 20 [85] In Canada Trust Co. v. Halifax (City), 126 N.S.R. (2d) 218 (N.S.C.A.), our Court of Appeal considered the role of a municipal traffic authority. Justice Roscoe, in upholding the trial decision, concluded at para. 19 that the decision of the Halifax Traffic Authority was not a decision of Council: The City Council, in my opinion, did not have the authority or jurisdiction to usurp the powers of the traffic authority duly appointed under the Motor Vehicle Act. [86] Justice Roscoe considered a challenge to the intended use of a concrete island to narrow the road and to reduce the amount of traffic. Justice Roscoe found that the use of a physical impediment to regulate traffic did not amount to the closure of part of a street. The Court found that the proposed changes did not constitute a closure, a temporary alteration or an alteration, diversion or encroachment (para. 9). [87] Notwithstanding that Justice Roscoe was considering the former Halifax City Charter (repealed and replaced with the HRM Charter), it is my determination that the case is of guidance here. The establishment of a bicycle lane is a form of traffic regulation within the function of the HRM Traffic Authority and not Council. Council is empowered, under s. 325(1) of the HRM Charter, to close streets. This must be done by policy. But s. 325(1) has no application here because establishing a bicycle lane is not a street closure. The Applicant has therefore failed to establish that Council failed to follow a statutory procedure. The rest of his attacks on the legality of the resolution amount to criticisms of Council's failure to follow internal procedure, which cannot constitute illegality. Accordingly, the Applicant's application to quash the resolution under s. 207 is dismissed. Declaratory Relief Analysis [88] Declaratory relief is available pursuant to Civil Procedure Rules 38.01(1) and 38.07(5). Declarations are a flexible remedy suitable for use in a wide variety of circumstances: de Villars, supra at 755. Specifically, declarations may be used as a supervisory remedy to challenge the validity of administrative action: ibid. at 757. Standard of Review [89] Issues of procedural fairness are usually reviewable on a standard of correctness: Guy Régimbald, Canadian Administrative Law, 2nd ed. (Markham, Ont.: LexisNexis Canada Inc., 2015) at 373. In Jono Developments Ltd. v. North End Community Health Association, 2014 NSCA 92, the Nova Scotia Court of Appeal overturned a judicial review decision quashing HRM's approval of its

23 Page 21 decision to purchase a surplus school property. In discussing the standard of review, Justice Farrar (on behalf of the majority) stated as follows at paras. 41 and 42: [41] The reviewing judge correctly identified the principle that no standard of review analysis governs judicial review, where the complaint is based upon a denial of natural justice or procedural fairness. (See for example, T.G. v. Nova Scotia (Minister of Community Services), 2012 NSCA 43, leave to appeal refused, [2012] S.C.C.A. No. 237, at para. 90). [42] Instead, a court will intervene if it finds an administrative process was unfair in light of all the circumstances. This broad question, which encompasses the existence of a duty, analysis of its content and whether it was breached in the circumstances, must be answered correctly by the reviewing judge (see: T.G. v. Nova Scotia (Minister of Community Services), supra, at para. 8; Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd.,2010 NSCA 19, para. 28; Nova Scotia (Community Services) v. N.N.M., 2008 NSCA 69, para. 40; and Kelly v. Nova Scotia Police Commission, 2006 NSCA 27, paras [90] In the next paragraph, Justice Farrar began his analysis of the existence of a duty of fairness with this: [43] The reviewing judge embarked on a duty of fairness content analysis following Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 before assessing the threshold issue of whether a duty was owed at all. This omission by the reviewing judge is of little consequence as, for the reasons that follow, I am satisfied that HRM owed a duty of fairness to the Community Groups. [91] Given the above, I must assess the threshold issue of whether Halifax owes a duty to Mr. Reddick. For the same reasons the Applicant has standing to bring an application to quash the resolution, I conclude the Respondent owed a duty of fairness to the Applicant. [92] The Applicant says he has not been afforded full participatory rights. Mr. Reddick refers to the Supreme Court of Canada in Catalyst Paper Corporation v. North Cowichan (District), 2012 SCC 2 at para. 12: A municipality s decisions and bylaws, like all administrative acts, may be reviewed in two ways. First, the requirements of procedural fairness and legislative scheme governing a municipality may require that the municipality comply with certain procedural requirements, such as notice or voting requirements. If a municipality fails to abide by these procedures, a decision or bylaw may be invalid. But in addition to meeting these bare legal requirements, municipal acts

24 may be set aside because they fall outside the scope of what the empowering legislative scheme contemplated. This substantive review is premised on the fundamental assumption derived from the rule of law that a legislature does not intend the power it delegates to be exercised unreasonably, or in some cases, incorrectly. Page 22 [93] Mr. Reddick points to the Council meeting minutes of February 3, 2015 (Exhibit G of David MacIsaac s July 24, 2015 affidavit) and in particular the motion of Council to refer the matter back to staff to conduct further public engagement on the proposed construction and operation of a protected bike lane on University Avenue, with a staff report incorporating the results being brought back to Council by March 10, [94] The Applicant argues that the March 11, 2015 open house was inadequate public engagement and therefore Council's motion was not given proper effect. In support of his position, the Applicant points to alleged deficiencies in the open house when contrasted with similar open houses in Halifax, before and after this one. [95] In this regard, I previously outlined the witness evidence referable to the March 11, 2015 and May 12, 2015 Council meeting. Documents surrounding these events (during which Mr. Reddick was present) are attached to Mr. MacIsaac s affidavits and offer further evidence to counter the Applicant's submissions. Indeed, it is my finding that he was afforded appropriate participatory rights. For example, the April 13, 2015 report entitled Bicycle Lane Partnership with Dalhousie University under the heading of Origin starts out with this: February 3, 2015 resolution of Halifax Regional Council directing staff to conduct further public engagement on the proposed construction and operation of a protected bicycle lane on University Avenue, with a staff report incorporating the results being brought back to Council. [96] Further, there is a Discussion section which commences with this paragraph: In 2014, Dalhousie University proposed showcasing a protected bicycle lane on University Avenue between LeMarchant and Robie Streets. This was intended to implement previous university and district plans, and support HRM s active transportation objectives. While the Municipality would retain full ownership of the street, a partnership with Dalhousie was proposed to help expedite implementation of the project, and to provide increased monitoring support than the Municipality could achieve on its own. Dalhousie and its funding partner, the Province of Nova Scotia, have offered to pay the entire construction cost (approximately $50,000) and all operational costs (approximately $150,000 over