Focus On

PROCEEDINGS - Appeals and judicial review - Scope of review

Monday, April 01, 2019 @ 1:06 PM  

Lexis Advance® Quicklaw®
Motion by the parties to an appeal for directions. The appellant, Linden Leas Limited, sought to appeal a decision made pursuant to the Overholding Tenants Act following a complaint by the respondent, the Nova Scotia Farm Loan Board. The respondent sought an order of possession over lands it owned and leased to the appellant. The lease was terminated in September 2018, three months prior to the respondent's complaint. In February 2019, the matter proceeded based on affidavit evidence and written submissions. An oral decision required the appellant to deliver vacant possession of the lands by the end of March. Linden appealed on the basis the judge erred in failing to apply equitable principles in determining there was no basis for relief from forfeiture, erred in finding that its timber harvest plan was not ecologically sustainable, and erred in relying upon a decision in an unrelated matter. The parties sought directions regarding the Court's role on appeal and the proper interpretation of s. 18 of the Act. The appellant took the position that the appeal should proceed by way of a de novo hearing with evidence from witnesses. The respondent submitted that the appeal should proceed based on the record below with no new evidence.

HELD: Motion allowed in respondent's favour. The purpose of the Overholding Tenants Act was to provide a landlord with the means to regain possession of premises from a tenant after expiration of the lease. Various provisions of the Act signified an intent that such matters proceed expeditiously. Given the context of the Act as a whole, s. 18 could not be interpreted on its face as explicitly contemplating a trial de novo for appeals. A broad and liberal interpretation did not support a conclusion the appellant was entitled to a trial de novo. The use of "de novo" wording signified the non-deferential standard of review on appeal rather than the nature of the hearing. The appeal was to be undertaken based on the evidentiary record of the court below, with the Court free to make its own determinations of both fact and law.

Linden Leas Ltd. v. Nova Scotia (Farm Loan Board), [2019] N.S.J. No. 93, Nova Scotia Court of Appeal, C.A. Bourgeois J.A., March 8, 2019. Digest No. TLD-April12019003