Justice Coady’s Decision in Bancroft v. Nova Scotia (Land and Forestry) 2020 NSSC 214

Robert Bancroft and Eastern Shore Forest Watch Association (Applicants)

v.

Nova Scotia Minister of Lands and Forestry and
The Attorney General of Nova Scotia representing
Her Majesty the Queen In Right of the Province of Nova Scotia (Respondents)


Judge: The Honourable Justice Kevin Coady
Heard: June 29, 2020, in Halifax, Nova Scotia
Written Decision: August 5, 2020

Counsel: James Simpson, Counsel for the Applicants
Jack Townsend, Counsel for the Respondents

Highlights

“On January 31, 2020, the Applicants filed a Motion seeking an Order to “extend the six-month time limit per Civil Procedure Rule 7.05(1).” It was their intention to seek a judicial review” of the decision by the Nova Scotia Minister of Lands and Forestry to delist Owl’s Head Provincial Park Reserve from the Parks and Protected Areas Plan of 2013.” (PAPA)”

Interlocutory Decision, Page 2

“PAPA legislation allows for the designation of areas as either Provincial Parks or Park Reserves. The latter designation creates a sort of holding pen for lands that, in the future, may become Provincial Parks. Owl’s Head was a park reserve prior to delisting. It is now classified as general Crown property.”

Interlocutory Decision, Page 3

“The evidence on this Motion clearly establishes that Owl’s Head was portrayed to the public as a Provincial Park. Government documentation and maps, going back as far as 1978, refer to the area as “Owl’s Head Provincial Park”. Further, it was managed by Lands and Forestry to maintain its reserve status. The public had every reason to assume Owl’s Head was a Provincial Park and, therefore, attracted protections not available on Crown lands.”

Interlocutory Decision, Page 3

“There can be no question that the Applicants’ Notice of Judicial Review was filed beyond the limitation stipulated in Civil Procedure Rule 7.05(1 )(h). It was not filed in advance of September 2019. However, the secrecy of the decision precluded any member of the public from legally responding within the six-month window. There is nothing in the evidence that suggests the Applicants were dragging their feet. They responded to Mr. Gorman’s December 18, 2019 news report in a timely manner.”

Interlocutory Decision, Page 4

In conclusion I find as follows in relation to the test:

1. The Applicants had a bona fide intention to appeal;
2. Application of the discoverability principle indicates that the Applicants’ delay amounts to a matter of days;
3. The Applicants have a reasonable excuse for the delay (i.e., secretive nature of the process);
4. The Applicants will suffer prejudice if the extension is not granted, whereas the Respondent will suffer little prejudice if the extension is granted; and
5. The Applicants have a well-reasoned Application for Judicial Review and it should be heard on the merits

Interlocutory Decision, Page 8

“In light of these conclusions, I grant the Applicants an extension to file their Notice of Judicial Review. I direct that filing shall take place within 14 days of the date of this decision.”

Interlocutory Decision, Page 9

You can read the whole decision here or download the file at the bottom of this page. You can go to the next page by using the arrows or zoom using the toolbar function.

2020nssc214-1-050820


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