NOVA SCOTIA COURT OF APPEAL Citation: Annapolis County (Municipality) v. Heritage Wooden Shingles, 2016 NSCA 58 Between: Date: 20160721 Docket: CA 443074 Registry: Halifax Municipality of the County of Annapolis, a body corporate pursuant to the Municipal Government Act, R.S.N.S. 1989, c. 18 Appellant v. Heritage Wooden Shingles, a body corporate, and Merwin Clayton Respondents Judge: Appeal Heard: The Honourable Justice David P.S. Farrar May 25, 2016, in Halifax, Nova Scotia Subject: Municipal Law. Municipal Government Act, R.S.N.S. 1998, c. 18, s. 238(2) s. 241. Abandonment of Legal Non- Conforming Use. Summary: The Municipality of the County of Annapolis made an application to a judge sitting in Chambers seeking an order restraining the respondents from continuing to use a property located in Cornwallis Park as a residence. The Municipality argued that it was a non-conforming use. The respondents countered acknowledging that it was a nonconforming use but that it had been in existence for a number of years and, therefore, was a legal non-conforming use which had never been discontinued pursuant to the provisions of the Municipal Government Act.
The application judge agreed with the respondents and found that the use of the property as a residence was a legal nonconforming use. The Municipality appeals arguing that the application judge made errors of fact and law in his decision. Issues: Result: Did the application judge err in his determination that the residential use of the property (the Coach House) was a legal, non-conforming use? Appeal allowed. The application judge misdirected himself on the appropriate period of time for considering whether the non-conforming use had been abandoned. His misdirection resulted in him failing to consider whether the legal nonconforming use had been abandoned between the years 2000 and 2004. Had he directed his mind to that period of time the inevitable conclusion would have been that the legal, nonconforming use had been discontinued for a period in excess of six months and, therefore, the building could no longer be used as a residence. As the determination of the appeal turned on an issue not initially raised by the appellant, no costs were awarded on the appeal. This information sheet does not form part of the court s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages.
NOVA SCOTIA COURT OF APPEAL Citation: Annapolis County (Municipality) v. Heritage Wooden Shingles, 2016 NSCA 58 Between: Date: 20160721 Docket: CA 443074 Registry: Halifax Municipality of the County of Annapolis, A Body Corporate pursuant to the Municipal Government Act, R.S.N.S. 1989, c. 18 Appellant v. Heritage Wooden Shingles, A Body Corporate, and Merwin Clayton Respondents Judges: Appeal Heard: Held: Counsel: Fichaud, Beveridge and Farrar, JJ.A. May 25, 2016, in Halifax, Nova Scotia Appeal allowed without costs per reasons for judgment of Farrar, J.A., Fichaud and Beveridge, JJ.A. concurring. W. Bruce Gillis, Q.C., for the appellant Gregory D. Barro, Q.C., for the respondents
Page 2 Reasons for judgment: Overview [1] The Municipality of the County of Annapolis made an application to Justice Pierre R. Muise, sitting in Chambers, seeking an order pursuant to s. 266 of the Municipal Government Act, R.S.N.S. 1998, c. 18. It sought to restrain the respondents from continuing to use the property located at 116 Tribal Street, Cornwallis Park, Annapolis County (known as the Coach House) as a residence in violation of the Municipality s Land Use By-law. [2] The respondents contested the application on the grounds that their residential use of the property was a legal residential non-conforming use by virtue of ss. 238 to 241 of the Municipal Government Act. [3] The application judge agreed with the respondents and, in an oral judgment rendered on June 17, 2015, found that the respondents use of the Coach House was a legal residential non-conforming use which had not been discontinued. [4] The Municipality appeals arguing that Justice Muise made numerous errors of fact and law in his decision. It asks that the decision be overturned and the respondents be ordered to immediately cease the residential use of the premises. [5] For the reasons that follow, I would allow the appeal without costs. Background [6] The Coach House was part of the former Canadian Forces Base Cornwallis which was transferred to the Cornwallis Park Development Authority on September 13, 1995. At the time it was transferred, there was no land use by-law and, therefore, no restrictions on the use of the lands or buildings of CFB Cornwallis. [7] A Notice of the Intention to Adopt the Land Use By-law was first published in May 1998, and it was adopted on September 15, 1998. It received Ministerial approval on October 30, 1998. A subsequent Cornwallis Land Use By-law was adopted on March 18, 2014, with an effective date of May 1, 2014. The adoption of the new Land Use By-law does not impact the issues on this appeal.
Page 3 [8] It was acknowledged in the proceeding below that for much of the time the property was owned by the Development Authority, it was vacant. In particular, the residential occupation of the building ceased sometime in 1996. The Coach House remained vacant until June of 2000 when it was rented from the Development Authority by Carey Simmons, the proprietor of Bear River Construction. [9] On June 22, 2000, the Development Authority, at the request of Mr. Simmons, made an application for a Development Permit seeking to use the Coach House as an apartment, workshop and office. The application was denied by a Development Officer for the Municipality. The decision of the Development Officer to refuse the Development Permit for a residential use was not appealed. [10] On July 5, 2000, the Development Authority submitted a new application for a Development Permit seeking to use the Coach House as a workshop and office. The request to have an apartment in the premises was absent from the second application. [11] On July 11, 2000, Albert Dunphy, the Coordinator of Planning and Development Control, wrote to John Brittain of Kespuwick Developments (Kespuwick Developments was a business name utilized by the Development Authority) as follows: Thank you for your letter of July 5, 2000 with an application for a workshop and accessory office for Bear River Construciton. This application will be processed as Permit No. 2000-227, but still requires an application fee of $10.00. As we discussed during our telephone conversation last week, your original application for a workshop and apartment, processed under permit no. 2000-202 was rejected pursuant to Section 245(2) of the Municipal Government Act. The reason approval for this application could not be granted was that according to the Cornwallis Park Land Use By-law, the location of the proposed apartment fell within the Institutional (I-2) Zone and in accordance with Part 15(1) of the Cornwallis Park Land Use By-law, apartments are not a permitted use. [12] The Development Permit allowing the building to be used as a workshop and office was approved on July 27, 2000. [13] In its Supplemental Factum, the respondents say that it was Mr. Simmons who was contacted by the Municipality about the refusal of the Development Permit for a residential use. They also assert that it was Mr. Simmons who submitted the second application and not the Development Authority.
Page 4 [14] The respondents version of the facts is unsupported by the record. Both applications for development permits were signed by Mr. Brittain on behalf of the Development Association. The letter rejecting the first application for a development permit was sent directly to Mr. Brittain. The respondents suggestion that the Development Authority was not involved in the process after the initial application is without merit. [15] Mr. Simmons used the premises for an office, workshop and storage. He did not use it for a residence. He vacated the premises sometime in 2002 or 2003. [16] The premises remained vacant until Heritage Wood Shingles purchased it on February 26, 2004. The respondent, Merwin Clayton and his common law partner, Theresa Hannam, moved into the property on June 1, 2004. Except for a brief period in the winter of 2013, the Coach House has been used continuously as a residence since June 1, 2004. [17] Mr. Clayton received a letter from the Municipality dated November 28, 2012, advising him that the residential use of the property was a non-conforming use and he was to vacate the premises. Mr. Clayton advised the Municipality that he had ceased using the property as a resident on December 16, 2012, as requested. He and Ms. Hannam then went to Florida for the winter. [18] Upon his return from Florida in April or May of 2013, Mr. Clayton changed his position saying that he had received legal advice that his use of the property as a residence was a legal, non-conforming use. Mr. Clayton and Theresa Hannam resumed residing in the Coach House in April or May, 2013, prompting the Municipality to make an application against the respondents to cease using the property as a residence. Issues [19] In its factum, the appellant identifies the issues on this appeal as follows: 1. Did the Learned Trial Judge err in his interpretation of the Municipal Government Act and his application of the evidence to that Statute and in particular: (a) by finding that the establishment of a non-residential use for over two years did not constitute a discontinuance pursuant to the Act; (b) by applying a reverse onus to the Appellant with respect to establishing the owner s intention as to use;
Page 5 (c) by determining that a non-conforming use had not been discontinued based on a vague principle of fairness ; (d) erred in failing to admit business records as evidence of the intention of the owner with respect to the proposed use of the property while it was still vacant; and (e) failing to strike certain Affidavit evidence of the witness Peter Terauds. [20] During the course of the oral hearing in this matter, the panel identified another potential issue not raised before Justice Muise nor on the appeal. The issue identified was the effect, if any, the refusal of the Development Officer to allow a residential use of the property had on this appeal. [21] As a result of the panel s inquiries, the solicitor for the Municipality asked for permission to amend his Notice of Appeal. The panel directed that a proposed Amended Notice of Appeal should be sent to the Court and that the parties should file supplemental submissions on whether leave to amend the Notice of Appeal should be granted and on the new issues raised in the proposed Amended Notice of Appeal. [22] On June 13, 2016, the Municipality filed a motion to amend with a proposed Amended Notice of Appeal. [23] The Municipality seeks an amendment to Ground #1 of its previous Notice of Appeal and seeks to add two new grounds of appeal. The amended ground of appeal and the two new grounds are that the application judge: 1. Misinterpreted the Municipal Government Act, RSNS 1998, c. 18, and in particular but not limited to ss 238 to 240 and sections 244, 245, 246 and 247(3). 5A Purported to override or repeal the decision of the Appellant s development officer made June 22 nd, 2000, rejecting an application for development permit made by the owners of the subject property at the time as the application requested a residential use not permitted in the Institutional Business Zone under the Land Use By-law in force at the time, which decision was not appealed by the owner Applicant to the Nova Scotia Utility and Review Board as permitted under the Municipal Government Act, 247(3) and was therefore a final decision rendering the matter res judicata which the Trial Judge had no jurisdiction to challenge or vary as he purported to do. 5B Made a finding that the denial of the development permit by the development officer misled the Applicant owner as to the existence or
Page 6 non-existence of a purported legal non-conforming residential use thereby causing the Applicant owner to discontinue efforts to secure any other residential use. [24] Supplemental submissions were received from the Municipality on June 16, 2016 and from the respondents on June 30, 2016. [25] Before turning to the issues on the appeal, I must first decide whether to grant the Municipality s request to amend its Notice of Appeal. Preliminary Issue Amendment to the Notice of Appeal [26] Whether this Court should allow the amendment to the Notice of Appeal arises for the first time on the appeal. There is no standard of review. [27] The Municipality moves to amend pursuant to Rule 90.39: (2) A judge of the Court of Appeal may permit a party to amend a document filed at any time. [28] The proposed amendment would add two new issues to the appeal. The first being whether the issues before the application judge were res judicata as a result of the decision of the Development Officer. The second is whether the application judge failed to properly consider the denial of the Development Permit when he determined the legal, non-conforming use had not been discontinued. [29] In R. v. Marriott, 2012 NSCA 76, Justice Fichaud set out the considerations governing a judge s exercise of discretion under Rule 90.39(2). Although he was considering an amendment to a Notice of Appeal prior to the appeal hearing, the same considerations apply when considering whether to exercise the discretion at or after the appeal hearing. They are as follows: [5] The judge s exercise of discretion under Rule 90.39(2) should be governed by whether: (1) the amendment is arguable on its face, (2) the amendment is reasonably necessary for the administration of justice by enabling the presentation and determination of a material issue between the parties, and (3) the interval between the original, and properly timed notice of appeal and the amendment would cause irreparable prejudice to the respondent. On the first point, if the amendment is arguable on its face, the merits of the amendment are for the panel on the appeal, not the motions judge. Another way to express the second point is to say that the amendment must be sought in good faith, and not for an ulterior purpose. On the third point, the mere fact that the respondent will now have to
Page 7 reply to the issue in the amendment does not constitute prejudice. [citations omitted] [30] Applying those principles to the proposed amendments in this case will result in one being allowed, and the others refused. I am satisfied that 5B which relates to the consideration of the refusal of the Development Permit is raised in good faith and is arguable on its face. Perhaps more importantly, the amendment is reasonably necessary for the presentation and determination of a material issue between the parties on this appeal. However, the other proposed amendments are not reasonably necessary for the determination of this appeal. [31] Finally, I am satisfied that any prejudice to the respondents can be remedied in addressing costs on the appeal. [32] As a result, I would allow the amendment identified as 5B in the proposed Amended Notice of Appeal. [33] I now turn to address the issues on appeal. It is only necessary to address the amended ground of appeal to dispose of this matter. I would restate it as follows: Analysis 1. Did the application judge err in his determination that the residential use of the property (the Coach House) was a legal, non-conforming use? Issue #1 Did the application judge err in his determination that the residential use of the property (the Coach House) was a legal, nonconforming use? Standard of Review [34] I will discuss the standard of review when addressing the application judge s findings. Analysis [35] It was agreed before the application judge that the residential use of the Coach House whether reference is made to the 1998 By-law or the 2014 By-law was not a permitted use. The trial judge correctly identified that the issue before him involved the interpretation of the Planning Act, R.S.N.S. 1989, c. 346 (which
Page 8 was in force when the original Cornwallis Park Land Use By-law was promulgated in 1998) and the Municipal Government Act, S.N.S. 1998, c. 18 which came into force on April 1, 1999. The Municipal Government Act repealed and replaced the Planning Act. [36] There is no material difference between the wording in the non-conforming use provisions in the Municipal Government Act and those in the Planning Act. For the purposes of my analysis I will set out provisions in the Municipal Government Act which are: Nonconforming structure or use 238 (1) A nonconforming structure, nonconforming use of land or nonconforming use in a structure, may continue if it exists and is lawfully permitted at the date of the first publication of the notice of intention to adopt or amend a land-use bylaw. Nonconforming use of land 240 A nonconforming use of land may not be (a) extended beyond the limits that the use legally occupies;... (b) changed to any other use except a use permitted in the zone; and (c) recommenced, if discontinued for a continuous period of six months. 1998, c. 18, s. 240. [37] The application judge recognized that he had two questions to answer arising out of these provisions: 1. When the Notice of Intended By-law was first published in May, 1998, was there residential use being made of the building so as to constitute a non-conforming, residential use? 2. If a non-conforming, residential use was being made of the building when the notice was published, was that use discontinued for a continuous period of six months after May, 1998? [38] With respect to the first question, the application judge summarized his findings as follows: In May 1998, the Coach House had not been occupied for anything other than residential purposes. It was set up as a residence. It had been occupied as a residence since decades earlier. It was not vacated until sometime in 1996. Its
owner, the Association, wanted to either rent or sell the Coach House. It wished to maintain the possibility of someone living and also having a business in it. It did not want to close off the possibility of renting or selling it for residential purposes only. Further, its significance as a residential building was made known during negotiations for funding with the Federal Government. Therefore, in my view, the Association intended that at least a portion of the Coach House be used for residential purposes, at least until such time as someone sought to purchase or rent it exclusively for non-residential purposes. At that point, in my view, given the history of use, the intended use, and the configuration of the Coach House, the existing status quo of the premises was that at least a portion of it was residential. It was a use that had materialized already, not one which was merely intended or contemplated. The possibility that the Coach House might be rented or sold for commercial purposes only, though it may raise some doubt as to the residential use, does not make it that the use was converted to a non-residential use. Any such doubt must be resolved in favour of the landowner. Therefore, in my view, when the Notice of the Intended By-law was published, there was a legal non-conforming residential use of at least a portion of the Coach House. Page 9 [39] The application judge, before reaching this conclusion, reviewed the evidence and the law in detail. His reasons are supported by the law which he cites and the evidence on the record. I would not interfere with his conclusion on the first question. [40] In my view, the application judge falls into error in his response to the second question. [41] In considering whether there had been a discontinuation of the nonconforming use, the application judge considered the relevant period of inquiry to be between May 1998 (the date the Land Use By-law was first published) and June 22, 2000 (the date when the Development Permit was refused). He reasoned that if there was a non-conforming use in place on June 22, 2000, the period between 2000 and 2004 could not operate to establish a discontinuance extinguishing the non-conforming use because any discontinuance during that period of time came about as a result of misrepresentation by the Municipality; the misrepresentation being the decision of the Development Officer to reject the Development Authority s application for a development permit which contained a residential component.
Page 10 [42] There was no dispute that the building was not used as a residence between June 22, 2000 and June 1, 2004, well in excess of the six months discontinuance period referenced in s. 240(c). The application judge found that this could not prejudice the position of the respondents: In my view, any discontinuance of residential use created by the Municipality prohibiting the owner from using the Coach House for residential purposes, or representing to the owner that it could not use it for residential purposes, cannot be used by the Municipality to establish a discontinuance extinguishing a legal non-conforming residential use. This view is based on the Decision in City of Toronto v. San Joaquin Investments Limited et al., [1978] OJ 3271, a High Court of Justice Decision, affirmed by the Court of Appeal, [1979] OJ 4447. In that case, at the time of the adoption of the By-law, a non-conforming use of the land in question as a parking lot was being made. The Defendants were charged by the City for violating the new By-law. In response, they fenced the land and made no use of it for approximately two years until the charges were dealt with. The Court concluded that that did not constitute discontinuance because the Defendants had only stopped using the property to endeavour to resolve the differences with the City. Further, the Municipality is seeking equitable relief in the form of an injunction. In my view, it would be inequitable to grant them relief based on a discontinuance resulting from a prohibition imposed by them or a misrepresentation made to the Respondents by them, or to the prior landowners, the predecessors to the Respondents. Unless the non-conforming residential use had already been discontinued prior to the representation being made that residential use was not permitted, it was, at the time, a misrepresentation. Therefore, in my view, the relevant time of enquiry into whether there was a discontinuance of the non-conforming use, is a period of time between May 1998 and June 22, 2000, when the Municipality rejected the Association s Application for a Development Permit to use the Coach House as an apartment and workshop. But for that rejection, more likely than not, Mr. Simmons would have recommenced actual occupied residential use of the Coach House. The rejection, in my view, amounted to a prohibition. If use had not already been discontinued, it also amounted to a misrepresentation. Mr. Simmons wanted to rent out the apartment to supplement his business income. He was not able to keep the business afloat and ceased occupancy in 2002 or 2003. The Municipality s rejection of a residential use, more likely than not, thereafter continued to mislead the Association into believing no such use was
Page 11 permitted, such that it could not reasonably be expected to continue efforts to secure any other residential use, tenant, or purchaser. [43] With respect, this reasoning is fundamentally flawed. [Emphasis added] [44] The June 22, 2000 application required the Development Officer to decide if the property had a legal, non-conforming use at that time. He found it did not. His decision could arguably have run afoul of the Cornwallis Park Land Use By-law and, in particular, s. 3.2(b) which provides: DEVELOPMENT PERMIT 3.2 a. Unless otherwise stated in this By-law, no person shall undertake a development on a lot within the Planning Area without first obtaining a development permit from the Development Officer for Annapolis County. b. The Development Officer shall only issue development permits in conformance with this By-law except in the case of non-conforming uses and structure and minor variances. c. The Development Officer shall only issue development permits for nonconforming uses and structures and minor variances in conformance with the Planning Act. [45] The decision of the Development Officer was appealable to the Utility and Review Board pursuant to s. 247(3)(a) of the Municipal Government Act: Appeals to the Board 247 (3) The refusal by a development officer to (a) (b) issue a development permit; approve a tentative or final plan of subdivision or a concept plan, may be appealed by the applicant to the Board. 1998, c. 18, s. 247; 2000, c. 9, s. 44. [46] The powers of the UARB on appeal are set out in s. 251 of the Municipal Government Act: Powers of Board on appeal 251 (1) The Board may
(d) allow the appeal and order that the development permit be granted; (2) The Board shall not allow an appeal unless it determines that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land-use by-law or the subdivision by-law. 1998, c. 18, s. 251; 2001, c. 35, s. 12; 2003, c. 9, s. 66. Page 12 [47] The Development Authority had 14 days to appeal the decision. It did not do so. Instead, on July 5, 2000, it filed a new application for a development permit which did not propose a residential use. As noted earlier, that Development Permit was approved. [48] In June 2000 the Development Authority had a choice to make. It could have appealed the decision of the Development Officer to the UARB to permit it to use the Coach House for a residential purpose. Alternatively, it could have accepted the decision of the Development Officer and proceeded to use the property for commercial purposes. It chose the latter. [49] The decision of the Development Officer is not, as the application judge characterized it, a misrepresentation. It was a decision which the Development Officer made after his consideration of the proposed use and his interpretation of the Land Use By-Law. [50] The application judge relied on the decision of the Ontario Court of Justice in City of Toronto v. San Joaquin Investments Ltd., [1978] O.J. 3271, affirmed [1979] O.J. 4447 (C.A.), to support his finding that the decision of the Development Officer amounted to a misrepresentation. With respect, that decision is distinguishable from this situation. In San Joaquin the defendants were using a parcel of land as a parking lot for its grocery supermarket business. The issue in that case, as before the application judge here, was whether the parking lot was a non-conforming use. [51] The City took the position that it was not a non-conforming use. The defendant, obviously, took the opposite view. The Court concluded that at the time of the passing of the By-law, it was a legal, non-conforming use. The issue then became whether that use had been discontinued. The Court accepted that the property had been fenced sometime in early 1973 and there was no use made of the property at least until sometime in late 1974 and that during that time the lands were not used as a parking lot.
Page 13 [52] In that case, there were issues with respect to charges laid against the owners in December of 1971 for violating the City Zoning By-law and for parking transient motor vehicles on the lands on March 9, 1972. On appeal those convictions were quashed. The trial judge was of the view that the outstanding charges were a factor in the owner s discontinuing use of the property as a parking lot. He further found that the owners always intended to use the property as a parking lot. The discontinuance was an effort to resolve their outstanding issues with the City and to avoid additional charges. The trial judge found: [30] However, because of the City's strong position announced early in 1971 that the use was not a permitted use and the fact that charges laid in the Provincial Court against the owners in December of 1971 were not finally disposed of until 1973, I find that the owners fenced the property and discontinued the use to avoid confrontation with the City. [53] In those circumstances, the trial judge concluded it would be inappropriate to use the period of disuse for the purposes of calculating the time for the discontinuance. [54] That is not the case before us. In this case, there was an application for a Development Permit which, if granted, would have permitted a residential use on the property. That Development Permit was refused. There is no evidence of any confrontation or legal proceedings between the Municipality and the Development Authority between 2000 and 2004. In fact, to the contrary, the Development Authority accepted the decision of the Development Officer and moved on with using the property for only commercial purposes, clearly evidencing its intention to abandon the non-conforming use, if one existed at that time. [55] An analogous situation to San Joaquin would have been if the Development Authority had appealed the refusal of the Development Permit to the UARB and ceased using the property as a residence during the period of time that the appeal and decision were pending. If the appeal were successful and the time between filing the appeal and the decision exceeded the six months set out in the Municipal Government Act, in those circumstances, it may be inappropriate to use that period of time against the Development Authority. [56] Finally, in San Joaquin, the trial judge did not characterize the actions of the City as a misrepresentation but simply that the parties had different views with respect to the interpretation of the By-laws.
Page 14 [57] With respect, the application judge erred in characterizing the decision of the Development Officer as a misrepresentation. As a result, he failed to turn his mind to the period of time after June 22, 2000 in considering whether there had been a discontinuance of the residential use. Had he done so, the inevitable conclusion would have been that the Development Authority abandoned any intention it may have had to use the property as a residential premises when it decided not to appeal the Development Officer s decision. [58] The application judge concluded: The Municipality s rejection of a residential use, more likely than not, thereafter continued to mislead the Association in believing no such use was permitted, such that it could not reasonably expect it to continue efforts to secure any other residential use, tenant or purchase. [59] With respect, there was absolutely no evidence by anyone from the Development Authority that it was misled by the decision of the Development Officer. Nor was there any evidence to suggest that the Development Authority wanted to use the property as a residential premises after June 22, 2000. The only evidence that could even be remotely interpreted to touch on this issue is that of Peter Terauds. Mr. Terauds was a Warden of the Municipality of the County of Annapolis from 1994 to 2000. He was also one of the founding members of the Board of Directors for the Development Authority. [60] In his affidavit he says the following: 10. The residential use of the Coach House was recognized by the Cornwallis Park Development Agency for the period of time it owned the Coach House until it was transferred to the company owned by Merwin Clayton, which I understand is Heritage Wood Shingles Limited. [61] Mr. Terauds was neither a Warden of the Municipality nor a member of the Board of Directors after November of 2000. [62] Neither in his affidavit, nor in his direct or cross-examination during the hearing, did he give any evidence about the source of his knowledge of the intentions of the Development Authority in 2004 when the Coach House was transferred to the respondents. [63] This was the subject of discussion before the application judge. The solicitor for the Municipality moved to have this paragraph struck from the
Page 15 affidavit of Mr. Terauds. The application judge heard argument on the issue and concluded, in referring to paragraph 10 in the affidavit: Okay. I ll hear his evidence and if he has no personal knowledge, I ll strike that. [64] The Municipality raises as a ground of appeal the application judge s refusal to strike that portion of the affidavit. In reviewing the transcript and the evidence of Mr. Terauds, there is no evidence and no basis for his statement that the residential use of the Coach House was recognized by the Cornwallis Park Development Agency until 2004. I pause here to comment that I am not suggesting that a deponent can cure a defect in an affidavit through direct or crossexamination. That issue does not arise on these facts and it is not necessary to decide it. [65] The application judge makes no mention of this evidence in his oral decision nor what use he made of it. [66] Rule 39.04 of the Civil Procedure Rules provides as follows: Striking part or all of affidavit 39.04 (1) A judge may strike an affidavit containing information that is not admissible evidence, or evidence that is not appropriate to the affidavit. (2) A judge must strike a part of an affidavit containing either of the following: (a) information that is not admissible, such as an irrelevant statement or a submission or plea; (b) information that may be admissible but for which the grounds of admission have not been provided in the affidavit, such as hearsay admissible on a motion but not supported by evidence of the source and belief in the truth of the information. [67] The decision to strike portions of an affidavit is a discretionary one. The standard of review on appeal is whether the judge applied wrong principles of law or that the order gives rise to a patent injustice. (Hall v. Horn Abbot Ltd., [1999] N.S. J. No. 124 (C.A.)). [68] Paragraph 10 of Mr. Terauds affidavit completely skews the purpose of Rule 39.04. The purpose of the Rule is to allow the deponent of an affidavit to set forth his/her belief on matters of fact relevant to the proceedings. It is not intended to allow deponents to offer blanket statements on the intentions or knowledge of others. Paragraph 10 in Mr. Terauds affidavit is simply a bold assertion without
Page 16 any statement of the source and belief or the truth of that information. There is no evidence about how he could have possibly known what was recognized by the Development Authority after he ceased to be on the Board in November 2000. [69] Paragraph 10 of Mr. Terauds affidavit ought to have been struck. In failing to do so the application judge failed to properly apply the principles relating to the introduction of affidavit evidence. To the extent that information influenced the application judge s decision, it should have been ignored. [70] The application judge s determination that the Development Authority intended to and continued a residential use of the property after June 22, 2000, is without any evidentiary foundation. It has long been recognized it is an error of law to make a finding of fact for which there is no evidence (R. v. H.(J.M.), 2011SCC 45, 25). It cannot stand. [71] For these reasons, I would allow the appeal and order that the respondents be enjoined from using the property located at 116 Tribal Street, Cornwallis Park, Annapolis County for residential purposes. [72] As the appeal was primarily decided on an issue not raised initially by the appellant and not argued before the application judge, I would not award costs to either party on the appeal. To the extent that the respondents have received the $3,000 costs awarded below from the Municipality, those monies should be returned. Conclusion [73] The appeal is allowed without costs. Concurred in: Farrar, J.A. Fichaud, J.A. Beveridge, J.A.