This case was heard in the Court of Queen's Bench of New Brunswick.
Gowan owned property near Chamcook Lake in Charlotte County, New Brunswick. Chamcook Lake supplies the drinking water for the town of St. Andrews – it is subject to a Watershed Protected Area Designation Order under s. 14 of the Clean Water Act, which limits certain activities, such as construction.
Gowan had applied for an exemption to construct a garage on his property, which was subject to strict conditions under the exemption, including limitations on size and usage. A Watershed Protection Officer visited the site and took pictures of the garage when the construction was nearly complete. Afterwards, Gowan received a cease and desist order, alleging unauthorized construction of a dwelling in violation of the exemption. He appealed without success, arguing procedural unfairness and misinterpretation of his building's purpose.
Gowan applied for judicial review based on:
1. Assumptions about the building that cannot be supported by the evidence.
2. The lack of objections or concerns raised during the construction phase of the building.
3. Improper inspection of the building.
4. Not allowing the Applicant to address outstanding concerns the Minister or his agents had by finishing the building.
At the hearing of the judicial review application, the issues addressed by the parties were:
1. The timeliness of the application,
2. The reasonableness of the Minister’s decision,
3. Whether the applicant was denied natural justice, and
4. Costs.
Since Gowan’s application for judicial review was filed within three months of the date of the cease and desist order, the court found that it complied with the time limit.
In judicial review, reasonableness is concerned with justification and transparency within the decision-making process. Reasonableness is defined by whether the decision falls within a range of acceptable outcomes which are defensible in respect of the facts and law. The court found that the cease and desist order was unreasonable in this case as it lacked transparency. It provided no specifics as to the reasonable and probable grounds.
Natural justice refers to the right to a fair hearing with impartial decision-making authority. The court found that the vagueness of the cease and desist order made it impossible for Gowan to know what he was appealing, denying him the right to natural justice.
However, Gowan’s failure to consult with the respondent in full, made him at least in part, responsible for this application in the eyes of the court. In effect, there was no order as to costs.
View the Decision on CanLII: 2018 NBQB 212 (CanLII) | Gowan v. Province of New Brunswick | CanLII
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