lgma legal update 2012 reasons, reasonableness and the duty to

LGMA

Legal Update 2012

Reasons, Reasonableness and

the Duty to Consult First Nations

Presented by: Colin Stewart

Baziuk v. Shelley

• Can a ‘volunteer’ firefighter receive remuneration and qualify to hold local elected office?

• Volunteer Eligibility for Office Regulation, BC Reg 165/2011

• Regulation deems a volunteer someone who:

a) Provides volunteer service; and

b) Does not receive monetary compensation from a municipality or regional district for services

1. Elected Officials

Qualification for Office

• Village had established its Fire Department by bylaw.

The bylaw provided for remuneration to be

established by Village policy upon recommendation of

the Fire Chief and Administrator

• Had been paid $1,772.00 by way of hourly wage on

quarterly basis

• Court found not a ‘volunteer’

• Court ruled volunteer firefighter not qualified to hold

office when elected in November 2011 and office

declared vacant


Qualification for Office

• Elected Officials and Not for Profit Societies

Schlenker v. Torgrimson; Schlenker v. Hendren

• Does involvement in a non-profit society create a conflict of

interest?

• Challenge to Trust committee members of Islands Trust and

CRD Director on basis of conflict of interest

• Founding members and directors of the Climate Action

Society and the Salt Spring Island Water Council Society

• Allegation that Trustees and CRD director had a pecuniary

interest when they voted to provide money to the non-profit

societies


Conflict of Interest

• CRD director acted as liaison between Water Council Society and 6 CRD local water commissions on Salt Spring

• Trustees voted money be dedicated to water council projects

• Constitution and bylaws of the societies indicated that the organizations were established to deal with significant public issues

• Test: “whether the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence that duty” (Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 and applied in many BC cases)



• Court ruled that none of the elected officials had pecuniary

interest

• Allegation also made that officials had a ‘common law’ non

pecuniary interest

• Dismissed by the Court

• No personal gain; no interest particular to the personal

interests of the elected officials

• Nothing to suggest a vote for any reason other than best

interests of the community



• “… a common law conflict of interest (as opposed to

common law bias or prejudgment) arises where the

interests are particular to the official, where they are not

shared by or would not benefit others in the community,

and, where – if the interest is particular to the official – a

reasonably well-informed person would find that the elected

official might be influenced in the exercise of public duty by

his or her personal interests”



Skakun v. Prince George (City)

• Does a Council have the right to pass a motion of censure?

• Councillor disclosed confidential report containing personal information from in camera meeting

• Convicted in Provincial Court of offence of contravening the FIPPA

• Prince George Council proposed motion of censure

• Councillor challenged ability of the Council to pass such a motion

• Court held that Councillor had violated his oath of office as well as s. 117 of the Community Charter


Motion of Censure

• Court found authority for motion to censure could be

inferred from legislation

• “In sum then, I find there is an implied power in

Council to regulate misconduct of a Councillor that

falls short of disqualification”

• Court suggested a process that included filing

evidence by way of affidavits was appropriate

• Council must listen to representations from Mr.

Skakun or his legal counsel

• Council could then withdraw to consider


Motion of Censure

Webber v. Anmore (Village)

• Can a delegation of power be done in camera?

• Challenge to resolution to delegate power to

Approving Officer to exempt applicant from frontage

requirements of zoning bylaw

• Challenge to Approving Officer’s ability to do this

brought by neighbour


In Camera Meetings

• Approving Officer alleged that Council had authorized

Approving Officer to do this years ago but corporate

record couldn’t be found

• Council met in camera to make re-appointment

• Neighbours argued this should have been done at an

open meeting

• Court upheld council’s action: resolution was related

to conduct of the litigation and therefore properly dealt

with at a closed meeting


In Camera Meetings

Halalt First Nation v. British Columbia

• Does involvement of First Nations in discussion

amount to adequate consultation?

• District of North Cowichan sought a Certificate of

Approval from the Minister of Environment for water

project

• New wells needed to provide water for Chemainus

• Province and Federal government involved

2. Duty to Consult First Nations

• Halalt First Nation invited to participate in working

groups but Court found real decisions were made

elsewhere

• Halalt had claimed aboriginal title to lands where wells

located and to water flowing in Chemainus River

• Halalt wanted control of water

• North Cowichan eventually proposed modified plan

reducing two wells to one but wanted decision about

summer pumping to be determined by itself and VIHA


• Test for whether the Crown has fulfilled its constitutional

duties to consult has three stages:

1. Did the Crown have knowledge of a potential Aboriginal

claim or right?

2. Did the Crown’s contemplated conduct have the

potential to adversely affect the claim or right?

3. What was the scope and content of the duty to consult

and accommodate in the circumstances of the

particular case, and was that duty adequately met?


• Court concluded Halalt not properly consulted by Crown

despite discussions and involvement of Halalt in working

group

• Project had potential to adversely affect Halalt’s claims and

rights

• Court ordered stay of Certificate of Approval sought by

North Cowichan, putting a freeze on the project


Neskonlith Indian Band v. Salmon Arm (City)

• Does a local government have a separate duty to consult

• BCSC dismissed claim City owed legal and constitutional

duty to consult and accommodate the Indian Band before

issuing a DP

• Shopping mall proposed for Salmon River flood plain


• Court rejected that duty vests automatically with any

tribunal or subsidiary body empowered to make

decisions affecting aboriginal rights

• Court considered nature of a DP


• Key points

1) honour of the Crown can’t be delegated

2) procedural aspects of the duty can be delegated but

this must be expressly or impliedly done by statute

3) municipality has no independent constitutional duty to

consult

• Nothing in the Local Government Act indicated a delegation

of the duty to consult in this case

• Section 879: duty expressed in statute to consult in

connection with Official Community Plan

• Therefore no duty on Salmon Arm to consult


2241960 Ontario Inc. v. Scugog (Township)

• Does local government have a right to regulate fill deposit at

aerodrome

• Ontario Divisional Court considered impact of two Supreme

Court of Canada cases on jurisdiction over aeronautics

• Landowner actively developing land for heliport

• Placed fill on land contrary to fill deposit bylaw

• Took position that the fill was necessary to create a landing

pad for heliport and therefore local bylaw inapplicable

3. Constitutional Law

Jurisdiction over Aeronautics

• Court disagreed

• Conflicting evidence whether owner actually developing

aerodrome in good faith

• Court found on the evidence that the owner was not actually

engaged in the construction of an aerodrome or a runway

• Owner not really engaged in an activity related to

aeronautics



• Therefore valid provincial and local regulation

• Interesting comment about earlier decision Greater Toronto Airports Authority v. Mississauga decision where local building and DCC byaws held inapplicable to airport operation:

“I note that Laskin JA writing for the Court of Appeal, asked whether the provincial legislation affects a vital or essential or integral part of a federally regulated enterprise. The Supreme Court of Canada has since made it clear in Canadian Western Bank and COPA that the test requires serious impairment of the core competence of aeronautics”



• On the effect of the Scugog bylaws the Court stated:

“In my view, the old and new fill bylaws merely regulate

the manner in which the site alteration is to be

performed. They do not seriously impair the landowner

from performing any site alteration required to enable a

runway to be built. Therefore, the doctrine of inter-

jurisdictional immunity does not apply”



Catalyst Paper Corp. v. North Cowichan (District)

• Do tax rates bylaws have to be reasonable?

• Supreme Court of Canada ruling on the tax rates saga

• Catalyst alleged paying unreasonable rates of taxes that

were unlawful

• Supreme Court of Canada confirms that appropriate

standard of review for a tax rates bylaw is reasonableness

• Appellants argued that Dunsmuir decision meant Courts

should no longer give deference to local government

decisions

4. Reasonableness – The Dunsmuir Legacy

• Test: does the bylaw fall within a reasonable range of

outcomes given legislative scheme and context of the type

of decision

• Supreme Court of Canada rejected argument that the bylaw

had to be ‘demonstrably’ reasonable or rational

• Court’s role to be approached based on wide variety of

factors that Councils may properly consider

• Dunsmuir “described reasonableness as a flexible

deferential standard that varies with the context and nature

of the impugned administrative act.”


• Section 197 Community Charter gave municipalities a

broad and virtually unfettered discretion to establish

property tax rates

• Council not required to give reasons for the bylaw

• “The bylaw favours residential property owners, to be sure.

But it is not unreasonably partial to them.”

• Bylaw within a reasonable range of outcomes and did not

constitute a decision that no reasonable elected municipal

council could have made


Johal v. Surrey (City)

• To what extent is a decision to revoke a chauffeur’s licence

subject to a duty of reasonableness?

• What implications does this have for other similar situations

such as business licences?

• Taxi driver since 1990

• Needed annual chauffeur’s permit


• Chief Constable delegated authority to issue the chauffeurs’

permits

• Bylaw specifies circumstances where chauffeurs’ permits

could be revoked

• Driver was charged with impaired driving and assault

• Licence refused in 2009 on the basis of a conviction for

impaired driving and criminal offence of assault


• Driver had been convicted of driving without due care and

attention and domestic violence charge resulted in the

driver placing himself voluntarily on peace bond

• Appeal for reconsideration by Chief Constable not

successful

• Appeal to Council: driver given opportunity to attend and be

represented by counsel

• After hearing Council withdrew in camera to consider

• Council declined without reasons


• Court found initial decision was founded on materially

incorrect facts

• On failure to give reasons:

“. . . the fact that Surrey’s decision was not legislative or

otherwise administrative in nature, the decision-making

process afforded a high degree of participation, and an

adverse decision would have a significant effect on Mr.

Johal’s livelihood, all point to the conclusion that Surrey

Council was required to give Mr. Johal reasons”


“It is neither possible nor desirable to be categorical

about what may constitute adequate reasons.

Adequacy will depend upon the context. There may be

occasions where a simple endorsement on appeal of a

subordinate decision may serve as a sufficient facsimile

for written reasons. On the other hand, there are

authorities which hold that a statement of conclusions

with nothing or little more than nothing, including a

conclusion that continuing a permit is not in the public

interest, will not do . . .”


“. . . Without the benefit of having even a bare bones

explanation from Surrey as to why it upheld the Initial

Refusal Decision, this Court is effectively hamstrung in

its ability to meaningfully discern whether Surrey

Council took alien considerations into account in

arriving at its decision or whether the decision was

reasonable in the sense of falling within a range of

possible acceptable outcomes which are defensible

within the meaning of Dunsmuir and its judicial lineage”


• Court concluded Surrey required to provide Mr. Johal

with basic reasons for decision

• Remitted back to Council


Fisher Road Holdings Ltd. v. Cowichan Valley Regional District

• Are disclosure requirements for public hearings absolute or

flexible?

• Petitioner owned land for composting facility

• Attacked zoning bylaw amending zoning to remove

recycling, composting and auto-wrecking as permitted uses

5. Planning Law

Public Hearing Procedures

• Owner planned to expand business before rezoning to

expand composting and add recycling

• Regional District had not disclosed all material relevant to

the bylaw

• Document was an engineering report reviewing

environment impact of composting and recycling in the area

looking at nitrate contamination affecting groundwater +

report of advisory committee

5. Planning Law


• Alleged breach of rules of natural justice & procedural

fairness from failure to make reports available

• Court upheld validity of process:

1. Petitioner had access to engineering report and even

had input into the final draft – report also available on

Regional District’s website

2. Bylaw consistent with Official Community Plan

• Quoted with approval from earlier case Wilde v. Metchosin:

“In each case, whether the disclosure process employed

was fair will depend upon the circumstances of the case”

5. Planning Law


• Accepted criteria for disclosure from an earlier Langford decision:

• Does the bylaw create a conflict of interest for the municipality

• Does rezoning significantly affect only one or two people or broad legislative decision

• Do disputed records add to the debate

• Is contemplated rezoning significant land use change

• Do records pertain to concerns of the Petitioner

• Was public hearing mandatory or could it be waived

• Are documents relevant to zoning or are they relevant to site specific concerns?

• If document was agreement, was agreement still subject to negotiation?

5. Planning Law


• Re minutes:

“While the minutes have peripheral relevance to the zoning

issue, they are not material to the approval or rejection.

Not every document created for the licensing process was

material to, and needed to be disclosed for the public;

hearing on the Bylaw. It would be burdensome to require

local governments to disclose every document with

peripheral relevance”

5. Planning Law


Okanagan Land Development Corp. v. Vernon (City)

• Court ruled bylaw imposing latecomer charge was invalid

• Bylaw imposed apportionment charge on ‘per unit’ basis

• Bylaw required that charge imposed at subdivision or

application of building permit or connection

5. Planning Law

Latecomer Charges

• Reasonable for municipality to determine benefit based on

number of potential development ‘units’

• Bylaw schedules contained errors and inconsistencies; did

not define what a ‘unit’ was; did not state the number of

‘units’ for each benefitting property

• No power to impose the charge at the time of subdivision or

building permit

• Latecomer charges imposed only as a condition of

connection or ‘hook up’ of the benefiting property to the

excess or extended service

5. Planning Law

Latecomer Charges

Re: MM Project Management Services Inc.

• Developer claimed non-conforming status for campsite to

enable large scale resort development

• Bylaw did not permit Park Model trailers

• Developer claimed would allow it to construct 10 m square

storage sheds on each of the 165 campsites

5. Planning Law

Incidental Use

5. Planning Law

• Sheds to be leased by 199 year leases with licence for campsite

• Evidence didn’t establish that permanent sheds of this type were ‘customarily incidental’ to a campsite use

• Main purpose of sheds was vehicle to market individual campsite sale of which was to be the main source of revenue for the owner

• Sheds not incidental but central and necessary to marketing of campsites

• Camping use incidental and subordinate to the shed use

• Park model use protected as part of the non-conforming use

5. Planning Law

Incidental Use

Residents & Ratepayers of Central Saanich Society v. Central

Saanich (District)

• To what extent can Council decide if there is conflict

between OCP and proposed Zoning Bylaw?

• Rezoning involved a higher density development within an

area of land designated as ‘Rural’ in the OCP and falling

outside Urban Containment Boundary in OCP and RGS

5. Planning Law

Conflict Between OCP and Zoning Bylaw

• Court of Appeal upheld Chambers Judge ruling

• Two competing tests had emerged from case law:

1. ‘absolute and direct collision’ [Rogers v. Saanich

(District)]

2. ‘consistent with’ [McLean Lake Residents’ Association

v. Whitehorse (City)]

• Court ruled ‘consistency’ was a ‘matter of interpretation’

• Chambers Judge recognized that ‘not possible to promote

each of the objectives stated in the OCP equally in each

case’

5. Planning Law


• Decision of Chambers Judge seen as reasonable

• Consistency not a matter to be determined on standard of

‘correctness’ like a question of statutory interpretation or

constitutional law

• “. . .Council was permitted to weigh these positive and

negative factors in making its decision and to determine that

the proposed development, considered as a whole and in

conjunction with the other concessions insisted upon by the

District, was consistent with the OCP’s ‘vision’ of rural

lands.”

5. Planning Law


Yanke v. Salmon Arm

• Can local government go behind report of a QEP?

• Court had opportunity to look at Riparian Areas Regulation (“RAR”)

• Commented on flaws in current regulatory framework:

“It is not clear why there seems to be such a dissonance between the statutory provisions and the regulatory framework that is actually applied. What is clear, however, is that the Court must be guided by the legislative provisions rather than by the Guidebook, the Intergovernmental Agreement, or provincial government publications.”

5. Planning Law

Riparian Areas Regulation

• Was City entitled to rely on basic wording of s. 4(2)(b)(iii)(A) of the RAR?

“(2) A local government may approve or allow development to proceed if the local government is notified by the ministry that Fisheries and Oceans Canada and the ministry have been

(a) notified of the development proposal, and

(b) provided with a copy of an assessment report, prepared by a qualified environmental professional who has carried out an assessment, that

. . .

(iii) Provides the professional opinion of the qualified environmental professional that

(A) If the development is implemented as proposed there will be no harmful alteration, disruption or destruction of natural features, functions and conditions that support fish life processes in the riparian assessment area”

5. Planning Law


• Developer hired Registered Professional Biologist to

prepare assessment report

• Report defined SPEA to extend 26 m upland

• DFO claimed report faulty in two respects – the high water

mark picked and the ability of the professional to provide a

report because had not been allowed to diverge from the

Detailed Assessment Methods

5. Planning Law


• Report stated that if proposed development didn’t come

closer than 15 m upland there would be no HADD (harmful

alteration disruption or destruction)

• Chambers Judge held that report complied with s. 4(2) of

RAR and therefore Salmon Arm did not need to refer the

matter to DFO

• Upheld by Court of Appeal

• “Like the Chambers Judge, I see nothing, in s. 4 of the

government where the qualified environmental professional

has given an opinion that the proposed development will not

result in a HADD.”

5. Planning Law


• “I agree with the Chambers Judge that the City of Salmon

Arm was not required to reject the development application

simply because the [DFO] had not approved the

development”

• “The City of Salmon Arm was not required to go behind the

certification. Accordingly, the Courts cannot go behind the

certification in reviewing the exercise of powers by the City”

• RAR entrusts the issue of compliance with assessment

methods to the professional judgment of the qualified

environmental professional

5. Planning Law


Peachland (District) v. Peachland Self Storage Ltd.

• Municipality attempting to enforce soil removal bylaw and

obtained an interlocutory injunction restraining removal

• Applicant tried to challenge validity of bylaw, claiming

Ministerial approval had not been obtained

• Municipality adopted amendment to its ‘Earthworks Bylaw’

in 2007 to limit extraction or deposit to 200m3/year but

didn’t obtain approval of bylaw from Minister

6. Bylaw Enforcement

Presumption of Enforceability

• Test:

“the mere raising of an arguable defence on the part

of the defendant in this case does not displace the

presumption of statutory validity that appears to be

clearly established by the authorities”



• Quoted with approval from earlier decision Kent (District) v.

Storgoff

“The democratically elected councilors of the plaintiff

municipality, who may be assumed to have acted

responsibly, have enacted a bylaw. It may or may not be

found at the trial of this action to have been a valid

exercise of their powers as such councilors, but at the

moment it is the law, and must therefore be respected and

observed unless and until it is ruled invalid by the courts

• Alternative was chaos

• Law must be obeyed until it is changed



Burke v. Sunshine Coast Regional District

• Does local government have discretion to undertake bylaw

enforcement?

• Neighbour alleged undertaking vehicle repair business

contrary to bylaws limiting use of property

• Regional District determined didn’t wish to enforce bylaw


Duty to Enforce

• Court reviewed statutory scheme and noted applicable provisions of Community Charter empowered but did not oblige the Regional District to make bylaws, establish penalties and take action to enjoin breaches of bylaws

• Number of relevant factors including budget constraints and evidence available

• “In the absence of evidence of bad faith, it is not available to the Court to review the decision taken by the District. Bad faith is not alleged here. The enforcement of a bylaw is a matter of discretion. The Court cannot force the District to enforce its bylaw in the absence of a requirement that the District is required at law to do so. I cannot find that here.”


Duty to Enforce

• Court further noted that in any event there couldn’t be a

cause of action for damages for negligence because the

Regional District didn’t owe a duty of care to the plaintiffs for

a policy decision:

“When a District makes a policy decision (in this case

whether to prosecute or not), the District is exempt from the

imposition of a duty of care and from any claim in

negligence.”


Duty to Enforce

Vancouver (City) v. O’Flynn-Magee

• Can a municipality limit public occupation of public

property?

• Action arose in context of the ‘occupy’ protests

• City of Vancouver entitled to an interlocutory injunction

(before trial)

7. Public Property

Defending Public Space

7. Public Property

• Test from Maple Ridge (District) v. Thornhill Aggregates Ltd.

“. . . Where a public authority, such as the City, turns to the

Courts to enforce an enactment, it seeks a statutory rather

than an equitable remedy, and once a clear breach of an

enactment is shown, the Courts will refuse an injunction to

restrain the continued breach only in exceptional

circumstances.”

7. Public Property


• City showed a clear breach

• Defendants unable to show exceptional circumstances

• Court also considered alternative test from RJR-MacDonald

Inc. v. Canada (1994 SCC):

“has the applicant demonstrated there is a fair question to

be tried? Will the applicant suffer irreparable harm if an

injunction is not granted? Does the balance of

convenience favour the granting of an injunction?”

7. Public Property


• Court ruled in City’s favour on all three points

• Clear breach

• Irreparable harm that could not be compensated in

damages

7. Public Property


• Balance of convenience favoured City:

“The City has a right to regulate the use of its land,

including the type and length of use of public lands . . . The

City has an obligation to regulate City lands to maintain

safety. It is liable for the activities which occur on City

lands. Therefore, it must have control over those lands.

There are significant health and safety concerns at the site.

There have been drug overdoses, an assault of a police

officer and other concerns.”

7. Public Property


lgma legal update 2012 reasons, reasonableness and the duty to

Documents