lgma legal update 2012 reasons, reasonableness and the duty to
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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
1. Elected Officials
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
1. Elected Officials
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)
1. Elected Officials
Conflict of Interest
• 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
1. Elected Officials
Conflict of Interest
• “… 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”
1. Elected Officials
Conflict of Interest
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
1. Elected Officials
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
1. Elected Officials
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
1. Elected Officials
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
1. Elected Officials
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
2. Duty to Consult First Nations
• 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?
2. Duty to Consult First Nations
• 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
2. Duty to Consult First Nations
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
2. Duty to Consult First Nations
• 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
2. Duty to Consult First Nations
• 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
2. Duty to Consult First Nations
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
3. Constitutional Law
Jurisdiction over 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”
3. Constitutional Law
Jurisdiction over 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”
3. Constitutional Law
Jurisdiction over Aeronautics
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.”
4. Reasonableness – The Dunsmuir Legacy
• 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
4. Reasonableness – The Dunsmuir Legacy
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
4. Reasonableness – The Dunsmuir Legacy
• 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
4. Reasonableness – The Dunsmuir Legacy
• 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
4. Reasonableness – The Dunsmuir Legacy
• 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”
4. Reasonableness – The Dunsmuir Legacy
“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 . . .”
4. Reasonableness – The Dunsmuir Legacy
“. . . 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”
4. Reasonableness – The Dunsmuir Legacy
• Court concluded Surrey required to provide Mr. Johal
with basic reasons for decision
• Remitted back to Council
4. Reasonableness – The Dunsmuir Legacy
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
Public Hearing Procedures
• 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
Public Hearing Procedures
• 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
Public Hearing Procedures
• 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
Public Hearing Procedures
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
• 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
Conflict Between OCP and Zoning Bylaw
• 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
Conflict Between OCP and Zoning Bylaw
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
Riparian Areas Regulation
• 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
Riparian Areas Regulation
• 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
Riparian Areas Regulation
• “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
Riparian Areas Regulation
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”
6. Bylaw Enforcement
Presumption of Enforceability
• 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
6. Bylaw Enforcement
Presumption of Enforceability
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
6. Bylaw Enforcement
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.”
6. Bylaw Enforcement
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.”
6. Bylaw Enforcement
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
• 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
Defending Public Space
• 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
Defending Public Space
• Court ruled in City’s favour on all three points
• Clear breach
• Irreparable harm that could not be compensated in
damages
7. Public Property
Defending Public Space
• 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
Defending Public Space
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