LOCAL GOVERNMENT LAW - LGMAand~Events/Conference~and~Tradeshow...LOCAL GOVERNMENT LAW Legal Update...

5/25/2017

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LOCAL GOVERNMENT LAW

Legal Update 2017

Presented at:

Local Government Management

Association Conference

May 18, 2017

Colin Stewart

Presented by:

• Pipeline to move crude oil and petroleum products fromAlberta to the B.C. Coast

• City of Burnaby enacted bylaw amendments to regulatesuch activity including:

– Parks & Recreation Bylaw Amendment;

– Streets & Traffic Bylaw Amendment

• Burnaby sought injunction to restrain Trans MountainPipeline from carrying on its works without regard to itsbylaws

Constitutional Law Issues

Burnaby (City) v. Trans Mountain Pipeline

ULC 2017 BCCA 132

5/25/2017

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• B.C.S.C refused to hear application as matter fell under

federal jurisdiction

• Trans Mountain brought forward an application for an NEB

ruling that the NEB had jurisdiction to determine whether

Burnaby’s bylaws applied to the pipeline project

• NEB ruled that it did have such jurisdiction, that the

doctrines of paramountcy / interjurisdictional immunity made

bylaw provisions inoperative



ULC 2017 BCCA 132

• Burnaby denied leave to appeal NEB order in Federal Court

• Burnaby sought answer to constitutional law question in BC

Courts. Trial judge determined he had no jurisdiction to

decide issue which had already been the subject of

proceedings before NEB with leave to appeal denied in

Federal Court

• Nevertheless addressed constitutional issues anyway

• Agreed with NEB that Burnaby’s bylaws were

constitutionally inoperative



ULC 2017 BCCA 132

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• Provisions of the NEB Act were held to apply to override

municipal bylaws and authorize the contravention of bylaws,

such as Burnaby’s

• On appeal, Burnaby abandoned the constitutional

argument, limiting its argument to the point, based on a

Supreme Court of Canada decision and the argument that

there was no case law giving a tribunal such as the NEB the

jurisdiction to make an order that a municipal bylaw was

invalid



ULC 2017 BCCA 132

• B.C.C.A. distinguished the Windsor decision on the basis

that in the Burnaby situation there was a provision in the

federal legislation that specifically allowed an inter-

provincial undertaking such as Trans Mountain Pipeline to

enter onto land to conduct work related to the pipeline

project without regard to local bylaws.

• NEB had a statutory grant of jurisdiction from the federal

Parliament



ULC 2017 BCCA 132

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• Athletic, experienced, 43 year old mountain bike rider injuredwhen participating in an obstacle course event

• Suffered broken neck and rendered quadriplegic

• Signage cautioned riders to ride within ability and risk, and thathelmets were mandatory

• Promotional material included warning that mountain bikingwas risky and that visitors should ride within own abilities andat own risk

• No mechanism for ambulance call at park

Municipal Liability - Negligence

Campbell v. Bruce (County) 2016 ONCA 371

How much warning of risk is enough?

• Plaintiff fell while attempting to cross constructed “teeter-

totter” obstacle in park, suffered broken neck, and was

rendered quadriplegic

• At trial, municipality was found liable for Plaintiff’s injuries

• Trial judge found that Plaintiff was not contributorily

negligent for his injuries

• Appeal dismissed by Ontario Court of Appeal



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The trial judge found five ways that the municipality had

breached the duty it owed the Plaintiff under the Ontario

Occupiers’ Liability Act to ensure that he was reasonably safe

while in the Park:

1) negligent promotion of the park;

2) failure to post proper warning signs;

3) failure to adequately monitor risks and injuries at the

park;

4) failure to provide an "adequate progression of

qualifiers"; and

5) failure to make the “Trials Area” a low-risk training area



• The brochure should have contained more detailed

warnings about the skill level required to use the features as

well as the risks of injury from being off the ground

• Court found injuries wouldn’t have happened with increased

signage



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• City refused building permit on basis of Petitioners’ ongoingrefusal to provide suitable geotechnical report relating to loton which home was to be built, as required by legislationand its development policy

• Lot in question was waterfront, with steep slope facingocean

• Petitioners brought petition for declaration that they wereentitled to building permit for home

• Petition dismissed -- In rejecting permit application becauseof absence of geotechnical report, city did not act contraryto terms of legislation or exercise its discretionunreasonably

Building Permits

Compagna v. Nanaimo (City) 2016 BCSC 1045

• Policy review requirement, which applied to "high hazard"

areas covered by the policy, seemed to be means of

furthering obvious purpose of s. 56 Community Charter,

which was to ensure safe construction in geologically

vulnerable areas

• Requirement for covenant at subdivision gave inspectors

necessary information to exercise their statutory discretion

in informed way

• Taking a geotechnical covenant at subdivision doesn’t

preclude taking a covenant at building permit stage

Building Permits

Compagna v. Nanaimo (City) 2016 BCSC 1045

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• Tendering case

• Contract A and Contract B

• Court found that the municipality accepted a non-compliantbid (”Entec Bid”), contrary to the terms of Contract A

• Tender documents contained a list of information requiredfor a compliant bid, including a “Contractor Health andSafety” checklist and agreement

Tendering

Graillen Holdings Inc. v Orangeville (Town)

2016 ONSC 3687

• Entec bid was accepted

• Next lowest bidder sued

• Evidence that the municipality would have awarded the

work to the next lowest bidder was equivocal because the

2nd lowest tenderer had proposed an option for the method

of construction that the municipality ultimately decided not

to use

• More likely to court that municipality would have retendered

the work

Tendering


2016 ONSC 3687

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• “It follows that, although the plaintiffs have persuaded me

that the Town breached Contract A through its acceptance

of a non-compliant bid, they have failed to persuade me that

ROHES would and should have been awarded Contract B.

To succeed in recovering damages in the amount of the lost

profits they would have made under Contract B of the 2010

Tender, the plaintiffs must also prove, on a balance of

probabilities that, but for the improper acceptance of the

non-compliant Entec bid, they would have been the

successful bidders. They have not done so”

Tendering


2016 ONSC 3687

• Company obtained Renewable Energy Approval (REA) inDecember 2013

• REA authorized construction of industrial wind turbines andassociated infrastructure in City

• City passed resolution denying the company access to anunopened portion of a road that would have provided accessbecause it was not prepared to host wind energy projects

• Company successfully brought application for judicial review ofCity resolution, and for orders directing City to consider anddecide in good faith company’s applications for upgrading anduse of road, and for permits to allow expeditious constructionand operation of wind turbine project

Bad Faith

Sumac Ridge Wind Inc. v. Kawartha Lakes (City)

2016 ONCA 496

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• City’s appeal dismissed

• On appeal Court found there was no error in concluding

City acted in bad faith by exercising its jurisdiction over

roads for improper purpose, which was to frustrate the

Provincial approval and prevent wind energy projects

Bad Faith


2016 ONCA 496

• Court referred to s. 14 of the Ontario Municipal Act (similarto s. 10 of the Community Charter which requiresconsistency between provincial and local enactments)

• Court held that a municipality could not use its authorityover roads to prevent an approved project from goingahead for being against its interests and, in effect, thwartingthe provincial purpose

• “To the extent that municipal permits are required, the onlyconcerns a municipality can advance are reasonableconsiderations such as costs, indemnification, and liability,and only so long as it does so in good faith. Permits maynot be refused simply because the municipality disagreeswith the overall project”

Bad Faith


2016 ONCA 496

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• City could not reasonably take position that in exercising its

jurisdiction over roads, it was permitted to refuse to even

consider applications

• Requiring City to act in good faith was not mandamus, but

rather statement of an established principle of law

Bad Faith


2016 ONCA 496

Homeless Encampments

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• B.C. Supreme Court ordered dismantling of homeless

encampment in Victoria, on lawn of the court house in July

2016

• Province had been unsuccessful seeking an interim

injunction in March 2016 on the basis that Province hadn’t

shown that the balance of convenience favoured an interim

injunction


British Columbia v. Adamson 2016 BCSC 1245

Homeless Camp Ordered Dismantled

What changed between March and July?

• Province had diligently created supported housing spacesboth in the immediate area and in other locations in theVictoria region

• Better evidence of costs to the City of policing & securitypresented by the Province

• Change in leadership among the campers meant thatleadership no longer as effective in dealing with problems

• Evidence of health & safety risks to the neighbours of theencampment from discarded needles, human feces,condoms, and a significant rat infestation



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• Significant fire hazard created by types of shelters erected;

storage of combustible material; use of fires, candles, and

smoking

• Significant increase in violence

• Court’s focus in the July decision was not on the actions of

the Province or the City, but rather on the changing dynamic

of the campers themselves and the increasingly negative

effect on the neighbourhood

• Question: If the camp had been located somewhere with

less impact; or if it had been better managed, would

Province have been successful?




Courthouse Lawn Today

5/25/2017

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• 68 year old Plaintiff retained legal counsel in November, 2010

regarding a slip on the municipal sidewalk in August 6, 2010

• Legal counsel didn’t give notice until January 28, 2011

• At the time of the accident, s. 286(3) of the LGA (now s.

736(3)) required that notice of a claim be delivered within 2

months from the date the damage was sustained

• Court found there was no “reasonable excuse”—neither age,

nor limited English skills, nor lawyer’s further delay were a

‘reasonable excuse’

Claims Against Local Government

Kazemi v. North Vancouver (City) 2016 BCSC 1240

Failure to Give Notice Results in Claim Dismissal

Land Use and Development Law

Zongshen (Canada) Environtech Ltd. v. Bowen Island

(Municipality) 2016 BCSC 2058

Local Government Ability to Prohibit Permanent Moorage

Upheld

• Owner wished to construct a private dock

• Owner applied to Ministry of Forests, Lands and Natural

Resources for tenure

• Owner applied to municipality for building permit

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• Bowen Island amended its Zoning Bylaw within the WG-1zone to permit boat moorage, docking and launching but toprohibit private moorage facilities and permanent moorage

• Zoning Bylaw as amended did not prohibit temporarymoorage associated with marine navigation (importantbecause of earlier decisions)

• Court upheld refusal to issue building permit







• In this case the municipality was successful because the

owner’s right to a building permit did not crystallize until it

obtained tenure from the Province

• Decision supports position that local bylaws that prohibit

private docks are not invalid provided that the bylaw does

not interfere with the right to temporary moorage which

earlier case law has determined is beyond their authority

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• 2014 the CSRD adopted an OCP bylaw creating a riparian

area development permit area

• Developer met with RD staff shortly before the OCP was

adopted

• Developer argued not required to obtain a development

permit because her project of bringing in fill to place on land

within the designated riparian area near a lake had started

in 2005 and was “ongoing”


Columbia Shuswap (Regional District) v. Darnell

2016 BCSC 1674

• Court rejected the argument, as the non-conforming use

sections (now ss. 528-535 LGA) only apply where a local

government adopts a new land use regulation bylaw which

is defined in the LGA

• OCPs and developments permits, authorized under

Divisions 4 and 7 of Part 14, don’t fall within the LGA

definition of “land use regulation bylaw” which includes

bylaws under Divisions 5, 12 and 13 only

• Question: what if the development permit guidelines had

been done by amending the zoning bylaw?


Columbia Shuswap (Regional District) v. Darnell

2016 BCSC 1674

5/25/2017

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Challenging Election Results

• School District failed to hold one of the statutorily mandated

advance voting opportunities

• Clearly a failure to follow the required procedure

• Section 155(3) LGA provides that Courts not declare an

election invalid due to an irregularity if the Court is satisfied

that the election was conducted in good faith and in

accordance with the principles of the Act, and that the

irregularity did not materially affect the result of the election

Elections

Duperron v. School District No. 53 (Okanagan-

Similkameen) 2017 BCSC 20

• In this case, through the presentation of evidence of historic

patterns of voter turnout at advance polls, the Court

accepted that, given local patterns of advance voter polling

(around 20%); and given that 25% of the voters had already

turned out to the advance poll that was held, it was unlikely

that there would have been many more advance voters

• The winning candidate had received 60% of the votes at the

advance poll, convincing the court that an additional

advance poll would not have altered the outcome of the

election.

Elections

Duperron v. School District No. 53 (Okanagan-

Similkameen) 2017 BCSC 20

5/25/2017

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Marihuana Dispensaries

• Defendant applied for a business licence for a medical

marihuana dispensary

• Delta refused the business licence

• Court had no difficulty finding that the business contravened

the criminal law as it currently exists and Delta’s bylaw


Delta v. WeeMedical Dispensary Society

2016 BCSC 1566

5/25/2017

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• Another medical marihuana dispensary decision

• Municipality sought to enforce its Zoning Bylaw and

Business Licence Bylaw

• Zoning Bylaw contained a general prohibition against

cultivating, growing, producing, packaging, storing,

distributing, trading and selling cannabis except where

specifically allowed


Abbotsford (City) v. Mary Jane’s Glass & Gifts Ltd.

2017 BCSC 1674

• Constitutional argument challenged municipal jurisdiction toregulate sale of cannabis

• Court found that the pith & substance of the bylaw was landuse regulation and would not be invalidated because of an“incidental intrusion” into area covered by criminal law

• Court rejected argument that the zoning bylaw restrictedaccess to medical marihuana since, under current federallaw, medical marihuana is not available through retaildispensaries

• Doctrine of interjurisdictional immunity didn’t apply



2017 BCSC 1674

5/25/2017

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• “Permissive federal legislation, without more, will not

establish that a federal purpose is frustrated when provincial

legislation restricts the scope of the federal permission”

• Important to anticipate future legal changes at federal level

and position zoning bylaws to deal with land use issues

relating to cannabis through a coherent approach to land

use planning



2017 BCSC 1674

• City of Vancouver had designated a heritage conservation

area under the Vancouver Charter (First Shaughnessy)

• City had not done an individual assessment of all pre-1940

homes in the designated area

• Issue: was an individual assessment of each property to

determine its heritage value a prerequisite to inclusion of

property in a heritage conservation area?

Land Use Planning and Development

Cummings v. Vancouver (City) 2016 BCSC 1918

Heritage Designation

5/25/2017

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• In 2012 Vancouver had indicated that all pre-1940 homes

would have to be assessed prior to demolition

• June 2014 - Heritage control period bylaw passed to allow

one year ‘pause’ (extended by 120 days to permit adoption

of heritage conservation bylaw)

• September 2015 - Heritage conservation area created by

bylaw under sections 596A and 596B of Vancouver Charter

(similar to sections 614 and 615 LGA)



Timeline

• Court concluded that an individual assessment was not

necessary under the legislation

• City persuaded Court that it had acted in good faith in

creating the HCA; that it had employed measures that were

not arbitrary and were rationally connected to a legitimate

municipal objective (heritage conservation)

• “Pre-1940” as the criteria for creating the area designation

based on report of consultant—not arbitrary

• City’s decision was “reasonable”



5/25/2017

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• Cobble Hill Holdings Ltd. held a Mines Act permit

• Permit included reclamation activities for mine—backfilling

the cavity with soil

• Ministry of Energy and Mines and Ministry of Environment

issued permit amendment to allow reclamation to be done

using contaminated soil and authorized on-site bio-

remediation

• CVRD argued that reclamation activity was equivalent to a

“landfill” use, prohibited under the zoning bylaw

Mines: Between a Rock and a Hard Place

Cowichan Valley Regional District v. Cobble Hill

Holdings Ltd. 2016 BCCA 432

• BCSC had agreed with CVRD but BCCA reversed BCSC

decision

• BCCA found that site reclamation was not a landfill use—

EMA distinguished between municipal solid waste and

environmental waste

• BCCA found that quarries/mines and the reclamation of

these sites was part of an integrated process under the

Mines Act, that wasn’t subject to local regulation




5/25/2017

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• Province has exclusive jurisdiction over mines under the

Mines Act

• “Land” as defined in LGA excludes ‘mines’

• Jurisdiction over soil deposit is a matter of joint

local/provincial jurisdiction subject to Provincial approval

requirements and CVRD had been unsuccessful in having a

soil deposit bylaw approved by the Minister of Environment

• Decision on leave to appeal to SCC not yet rendered




• Decision relating to enactment of a road closure bylaw under

s. 40 of the Community Charter

• Petitioner argued not enough notice of bylaw consideration

and that this breached Delta’s duty of fairness to the

Petitioner

Administrative Law - Duty of Fairness

667895 B.C. Ltd. v Delta 2016 BCSC 1918

5/25/2017

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• Road had been used to bring equipment and materials onto

their property

• Owners made 2 unsuccessful bids to purchase the road

• Delta decided to close the road

• Owners were informed by Delta of the intention to close the

road



• Owners given 10 days to respond to notice from Delta that

road closure bylaw had been given 3 readings

• Delta later adopted the bylaw

• Court found that a road closure bylaw was more like a land

use bylaw affecting specific land (zoning)

• Therefore owners of land adjacent to road were entitled to

“fairness” from Delta over and above the statutory

requirements



5/25/2017

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• Delta failed to advise owner that the bylaw was on the

agenda

• Petitioners argued that they should have been told that the

bylaw was on the agenda to be adopted

• Court decided that despite the fact that the adjacent owners

knew that the decision on the bylaw was imminent, they

were still entitled to notice and that the failure to provide

notice was fatal to the bylaw



• Significant because of high level of actual involvement and

awareness on the part of the owner about the bylaw

• This was not a case where the bylaw was brought in and

adopted without any notice to the owner

• It was a relatively simple misstep at the end of the process

that created the fatal flaw to the process

• Consider this issue whenever dealing with a bylaw that

affects a particular property owner, or a small group of

owners



5/25/2017

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• Plaintiff tripped on the post left when a metal traffic sign was

broken off and left in a resident’s yard

• Sign maintenance technician retrieved the sign, but

because of snow didn’t know exactly where the stump of

the post would be

• Policy called on City to use “best efforts” to locate missing

signs and fix damaged signage

Municipal Liability: Policy vs Operation

Binette v. Salmon Arm (City) 2017 BCSC 302

• City employee had the sign and the post, but Court found

that City had not used ‘best efforts’ to locate missing sign

base and attend to it

• Court found failure to attend to the matter was a breach of

the City’s policy

• Decision on carrying out the policy was an “operational”

decision and the failure to conform to policy was negligent



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• Standard for sidewalks is not perfection

• But, in this case “the Policy, created by the City, required it

to use “best efforts” all thing considered having regard to

the resource constraints and the hazardous nature of the

sign, to remediate the problem”

• Court found that in this case, despite the snow, the City

would or should have known where to look for the sign

because it included the name of the street

• At a minimum ‘best efforts’ must include some efforts



• Policies are important risk mitigation tool—but the wordingof the policy is going to be very critical because once thepolicy is created, local government will be expected tofollow the policy

• If there are exceptions when the policy can’t reasonably befollowed, then those policy exceptions should be containedin the policy

• Don’t use the term “best efforts” as part of a policy becauseit sets a very high standard and be wary of other similarlanguage that creates a duty that might not be realistic forstaff to fulfill



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• Decision relating to Canada Post’s decision to discontinue

household delivery in favour of community mailboxes

• City of Hamilton adopted bylaw purporting to control what

could be done on public land, including the installation of

community mailboxes

• Bylaw found by courts to be inoperative on the doctrine of

paramountcy because it conflicts with federal legislation

Constitutional Law

Canada Post Corporation v. Hamilton (City)

2016 ONCA 767

• Court of Appeal determined that the ‘pith & substance’ of

the bylaw, or it’s true nature, was to regulate the use of

public property for “…the protection of persons and property

from the harm occasioned by equipment installed on

municipal road allowances”– so it fell within provincial (and

hence local) constitutional authority

Constitutional Law


2016 ONCA 767

5/25/2017

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• “The power of the Postmaster General (and its successor,

Canada Post) to locate mail receptacles in its national

network, free of interference, has existed from

Confederation and has been continuously exercised…..a

harmonious reading of the CPCA and Regulation together

with the By-law is not possible”

• Bylaw found to be inoperative to the extent of the conflict

Constitutional Law


2016 ONCA 767

Drawings ©

Matt Stewart

All Rights Reserved

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