Executive Summary: Key Legal and Evidentiary Issues

• The Court remitted the matter to the Appeal Board because its decision failed to address the Town's authority to issue the Removal Order.
   
• Justice Osborne applied a correctness standard to review both the alleged errors of law and the procedural fairness question.
   
• Interim court orders from 2020 restricted the size and function of the barricade without expressly authorizing its continued existence.
   
• Allegations that the Town acted in bad faith or with an improper motive were never explicitly resolved in the Board's reasons.
   
• Procedural fairness was not breached despite the omission of an index, since every underlying document had already been disclosed.
   
• Costs of the appeal were awarded to Asphalt Product Industries Inc. on a Column III basis.
   

Facts of the case

Asphalt Product Industries Inc. ("API") operates a liquid asphalt facility on waterfront property in the Town of Come By Chance, which it asserts it owns subject to an easement permitting foot access to floating and private wharves. After API erected a barricade restricting vehicle access to the property without a permit, the Town commenced a Supreme Court action seeking a permanent injunction. In April 2020, Justice Marshall issued an interim order requiring the barricade to permit emergency access, expressly limited to the urgent question of emergency access and made without prejudice to the remaining issues in the litigation. Justice Stack varied that order in October 2020, requiring the barricade to be at least 20 feet wide and setting additional access requirements, while otherwise confirming the original order. While the interim orders remained in effect, the Town pursued expropriation of a portion of the property, obtaining an Approval to Expropriate from the Minister of Environment, Climate Change and Municipalities in June 2021. The Minister rescinded that approval after API advised of the ongoing litigation and court orders. On December 9, 2020, the Town issued a Removal Order under section 102(1) of the Urban and Rural Planning Act, 2000, requiring API to remove the barricade within 15 days on the basis that it constituted an unpermitted development. API appealed to the Eastern Regional Newfoundland Appeal Board (the "Board") on the grounds that the barricade was authorized by the court orders and that the Removal Order improperly targeted a lawfully placed structure, also raising arguments that the marina itself was an illegal development and that the Town acted in bad faith. The Board found the Town had authority to issue the Removal Order and dismissed the appeal, prompting API's further appeal to the Supreme Court of Newfoundland and Labrador.

Policy and legislative provisions at issue

The appeal centred on section 46(2) of the Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8, which restricts statutory appeals from the Board to questions of law or jurisdiction. The Town's authority to issue the Removal Order derived from section 102(1) of the same Act, which the Board applied in concluding that the barricade constituted an unpermitted development. API's procedural fairness argument engaged the Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1, under which it had obtained the omitted index document. The Court also considered the Town of Come By Chance Development Regulations, N.L.R. 3/01, enacted under the Act, which govern what constitutes a development requiring a permit.

Reasoning and analysis

Justice Osborne held that questions of law and procedural fairness are reviewed on a correctness standard, citing Oleynik v. Law Society of Newfoundland and Labrador, 2026 NLCA 15. On the jurisdiction argument, the Court found that although the Technical Report prepared for the Board had flagged the need to address whether the interim court orders ousted the Town's authority, the Board's decision never expressly addressed this issue. The Court expressed no final view on the merits but observed that the orders did not appear as "plain and clear" as API suggested, noting they seemed directed at ensuring emergency access rather than authorizing the barricade generally. On the illegal-marina argument, the Court found no authority supporting API's premise, but held that because the Board had been asked to address it, procedural fairness required an explanation if the argument was rejected. Regarding bad faith, the Court noted that a discretionary decision made in bad faith or for an improper motive is one basis on which the Board may interfere with the Town's discretion, citing Paradise (Town) v. Newfoundland and Labrador (Eastern Regional Appeal Board), 2010 NLTD 116. Since API's bad-faith allegations formed a substantial part of its appeal, the Board's failure to make explicit findings on the issue was a further gap requiring reconsideration. Turning to procedural fairness, the Court applied the framework in Oleynik and the non-exhaustive factors from Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, finding that although an index document was omitted from the appeal package, all four documents it identified were in fact provided to the parties, and API could not identify any resulting prejudice. Drawing on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Court emphasized that responsive reasons are how decision-makers demonstrate they have engaged with the parties' core arguments, and found the Board had failed to do so on the authority and bad-faith issues.

Ruling and overall outcome

The Court allowed the appeal in part, finding that the Board's decision failed to address the core planks of API's case regarding the Town's authority to issue the Removal Order and the allegations of bad faith or improper motive. The matter was remitted to the Board for reconsideration with directions to provide reasons on those two issues. The Court dismissed API's procedural fairness ground of appeal concerning the omitted index, finding no prejudice resulted from its absence. API, as the appellant, was awarded costs of the appeal on a Column III basis; no other monetary award or damages figure was granted or specified in the judgment.