Legal Update for Clerks and Corporate Officers October 15, Presented by Colin Stewart Staples McDannold Stewart

Transcription

1 Legal Update for Clerks and Corporate Officers October 15, 2010 Presented by Colin Stewart Staples McDannold Stewart

2 1. Recent Caselaw Sierra Club of Canada v. Comox Valley Regional District Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways) Dales Properties Ltd v Surrey (City) Virdis v North Vancouver (City) Ridley Brothers Ltd. v. Colwood Catalyst Paper Corp. v. North Cowichan (District) Pucci v. North Vancouver (City) Victoria (City) v. Adams, 2009 BCCA 563

3 Delegation and Development Permits Sierra Club of Canada v. Comox Valley Regional District Development permit issued subject to certain conditions Sierra Club attacked the development permit as being conditional in nature, not authorized by Local Government Act

4 Sierra Club of Canada v. Comox Valley Regional District Board Resolution:... THAT the board approved development permit DP DB07...for the purposes of commercial development, subject to the development permit not being issued until the following conditions have been met. Conditions: Water servicing Stormwater management plan Eagle tree management plan Improvements and signage conform to dark sky policy

5 Sierra Club of Canada v. Comox Valley Regional District Court ruled development permit complied with legislative scheme (storm water plan and eagle tree assessment clearly related to environmental issues) Deference given to local government Quoted from McLachlin J s dissent in Shell Canada case: If municipalities are to be able to respond to the needs and wishes of their citizens, they must be given broad jurisdiction to make local decisions reflecting local values.

6 Sierra Club of Canada v. Comox Valley Regional District Both the BC Supreme Court and the Court of Appeal upheld the validity of the permit issuance: The permit was issued by the board at the time it took the legislative step of its conditional resolution Court held: Section 920 permits the Board to attach conditions... It could have directed that the permit be issued with a proviso that Gas N Go not undertake activity on the site until the conditions were fulfilled.

7 Sierra Club of Canada v. Comox Valley Regional District Delegation Issue Sierra Club challenged development permit resolution that authorized Manager of Legislative Services to execute the permit Argued this was unlawful delegation because not done by bylaw Court disagreed - authorizing execution was administrative act distinct from delegation

8 Sierra Club of Canada v. Comox Valley Regional District Threat of Legal Action Sierra Club alleged development permit only issued to avoid lawsuit Court stated:...there is insufficient evidence that the Board issued the permit to avoid a pecuniary detriment. Suggests that issuing the permit to avoid lawsuit would have been a ground for challenge

9 Sierra Club of Canada v. Comox Valley Regional District Development permit issued when Board or Council passes resolution Development permit may be subject to conditional issuance Conditions must have been ones the local government could put into permit Permit and proviso?

10 2. Tendering Law Recall Ron Engineering v. the Queen; Contract A/Contract B Double N Earthmovers Ltd. v. Edmonton (City) Allowed City to accepted bid from bidder that did not in fact have equipment that was 1980 or newer despite what it said in bid City relied on the bid documents (no collusion) Bid non-compliance discovered after tender awarded After Contract B awarded, that was an end to Contract A City had no further duty to tenderers and could amend

11 Basic Principles of Tendering Law: An owner may only accept a compliant tender; The lowest compliant tender is to be accepted; and The owner owes bidding contractors a duty of fairness in analyzing the tender bids.

12 Double N Earthmovers Ltd. v. Edmonton (City), 2007 SCC 3 Caution: 4 judges would have held City liable

13 Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways) Tendering and RFPs: found that a proposal submitted by a proponent was in fact submitted by a party that was not a qualified proponent found that the arrangement between the qualified proponent and a subcontractor was in fact a form of joint venture held that the exclusionary clause holding the Province free from liability didn t cover the situation of a noncompliant proponent held Province liable to pay significant damages

14 Problems for Owners: Determining whether a tender is compliant Owner s ability to choose the tenderer that the owner thinks will in fact perform best is constrained; Owners exposed to risk of claims from noncompliant low-bid tenders that are rejected and compliant tenderers that aren t the low bidder and object to an owner s waiver of an apparent defect

15 This one isn t sealed Where s the list of subcontractors? That one doesn t have bonding Why did they include that $1000 bill?

16 Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways) In Tercon, the court was dealing with an RFP Court found it was subject to the same rules as a tender Province had through RFEI process established a qualified pool of proponents This qualified pool became the underlying premise of the process A departure from that process became a fundamental type of breach

17 Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways) In Tercon there was a nice exclusion clause: 2.10 Except as expressly and specifically permitted in these instructions to Proponents, no Proponent shall have any claim for compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a Proposal each Proponent shall be deemed to have agreed that it has no claim. SCC didn t like the exclusion Province couldn t award to an ineligible bidder as this was outside the RFP process and the

18 Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways) As a result of Tercon: RFEI may turn the qualified pool into the underlying premise of the process (be careful what you wish for) RFPs can be subject to the same rules as tenders Fairness remains an important principle in tendering Reservation of rights clauses and exclusion of liability clauses are useful but courts will construe narrowly so beware

19 Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways) In Tercon the majority of the judges found the Province had acted unfairly by accepting the proposal that included another party.

20 3. Expropriation: Dales Properties Ltd. v. Surrey Understanding the Purpose Behind the Powers Importance of paying attention to process on an expropriation 31(1) Community Charter: For the purpose of exercising or performing its powers, duties and functions, a municipality may expropriate real property or works, or an interest in them, in accordance with the Expropriation Act

21 Expropriation Note that 31(1) specifically links the expropriation power to a municipal purpose Surrey council adopted a resolution to expropriate land for new civic centre project: That Council approve and authorize the expropriation of all interests in land, including the seven fee-simple and the 26 leasehold/business interests in those properties, identified in Column 1 of Table 1 pursuant to section 6 of the Expropriation Act

22 Dales Properties v. Surrey Resolution did not mention purpose of the expropriation; Court held that owner was entitled to notice of the purpose because owner had right to an inquiry in a non-linear expropriation Notice of Expropriation served on owner had been ratified after the fact by Surrey Council Ex post facto ratification saved Surrey

23 Dales Properties v. Surrey Dales also challenged reasonableness of expropriation Court held that expropriation was not outside the reasonable exercise of power:...there is ample authority for the proposition that a municipality need not have any immediate use for the land, in that it may take years to fully develop the property... Court referred to section 3(b) and (c ) of the Community Charter

24 Dales Properties v. Surrey Include purpose of expropriation in authorizing resolution or bylaw Have council or board approve Notice of Expropriation May be possible to do after the fact ratification, as in this case, but try not to rely on that Some powers, duties and functions are granted for a specific purpose and must be exercised for that purpose and not for an irrelevant purpose;

25 Score One Victory for Local Government:

26 Reconsideration Virdis v. North Vancouver (City) 2010 BCJ No. 808 BCCA Rezoning and OCP amendment bylaw failed to pass motion to reconsider; effectively stopping the bylaws Developers appeared before Council Motion to refer the bylaws to the Community Development Department New bylaws containing amendments taken back to public hearing

27 Virdis v. North Vancouver (City) Petitioner alleged: 1. No process provided for that allowed for a bylaw to be referred back to Community Development Department after defeat. 2. The motion to refer back was not a proper motion to reconsider under section 131 of the Community Charter. Chambers Judge: held that the vote was pursuant to the Mayor s right of reconsideration

28 Council voted on a motion which neither statute nor its procedural bylaws prescribe or preclude, to facilitate the Virdis v. North Vancouver (City) Court of Appeal: disagreed Mayor exercised statutory right of reconsideration failed reconsideration motion was not the same as a vote to defeat the bylaw Council did have capacity to refer the matter back to the Community Development Department upheld right of Council to determine its own procedure subject to constraints of legislation

29 Virdis v. North Vancouver (City) Be careful about using possibly outdated processes (although here the court accepted use of reconsideration step because only soft procedural) possibility of misstep go back to the beginning of the process for a cure.

30 Elector Approval Ridley Brothers Ltd. v. Colwood (City) Proposal to create new local area service to rationalize service areas Wording of petition and background material provided to public indicated that the service area would consist of areas within boundaries of 2 original specified areas plus all the various other properties that Council considers can be serviced by the sewers Majority of owners with more than 50% of the value in each area approved merger

31 Ridley Bros. v. Colwood (City) Certificate of sufficiency attested to approval of electors for the adoption of the new bylaw, but did not identify extent to which petition had been approved within each individual service area Despite information provided to public indicating expansion of service area to include new parcels on the petition form and in background material, the only parcels included had been in original service areas Petition didn t set out total outstanding debt of original areas

32 Ridley Bros. v. Colwood (City) Certificate of Sufficiency may need to certify numbers for each area being merged as well as the numbers in favour overall Statements in the petition and the background material must match the terms of the actual bylaw that is brought forward Consider building merger provisions into local area service bylaws

33 Duty to Give Reasons - Duty to be Reasonable 2004 SCC decision in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, Court stated: In cases where a provision in municipal legislation required reasons or a written explanation of the basis for a decision, or where a municipal body performs and adjudicative role, or where considerations of procedural fairness are engaged the content of the formal reasons required are defined by the specific statutory

34 Catalyst Paper Corp. v. North Cowichan (District) Decision of Chambers Judge Chambers judge held that Dunsmuir applied; and that standard of review of taxing bylaw was reasonableness Court indicated it would be necessary for a municipality to provide to the court sufficient understanding of context for decision The Court found an obligation on the municipality to disclose some of the factors and considerations for adopting bylaw

35 Catalyst Paper Corp. v. North Cowichan (District) Court considered the test for the standard of review and quoted from Dunsmuir: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law.

36 Catalyst Paper Corp. v. North Cowichan (District) Chambers Judge Decision Supreme Court concluded that the tax rate bylaw was within range of possible and acceptable outcomes. Decision created potential issue for local governments because of comments re: providing context for the court to allow review providing factors and considerations or factual basis for the decision

37 Catalyst Paper Corp. v. North Cowichan (District) Appeal to B.C. Court of Appeal Catalyst appealed BCCA upheld decision of Chambers Judge and somewhat refocused the discussion regarding reasonableness

38 Court found transparency was ensured by the fact that municipal council meetings are open to the public Catalyst Paper Corp. v. North Cowichan (District) B.C.C.A. Decision No duty to give reasons where statute is silent Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine distinguished as a case involving private rights and interests of an individual (zoning case)

39 Catalyst Paper Corp. v. North Cowichan (District) On the question of deference: Municipal case law informed by obligation that courts provide particular deference to Council decisions Councils play a political role Function is not to adjudicate between competing specific interests Council members do not give reasons in formal sense Accountable at the ballot box Dunsmuir does not mean that municipal bylaws are to be subjected to a probing examination

40 Catalyst Paper Corp. v. North Cowichan (District) Where decisions of municipal councils are concerned, the factors that led the Court in Rascal Trucking to choose a standard of patent unreasonableness still form part of the colour... Catalyst is seeking leave to appeal to SCC but is paying its taxes to all jurisdictions

41 A Caution: Pucci v. North Vancouver (City) In Pucci v. North Vancouver BC Supreme Court Quashed decision not to rezone property because Council hadn t been given full context before making decision Could not say that decision was not grounded upon or activated by an improper or incorrect assumption

42 Pucci v. North Vancouver (City) Property owner applying to rezone for fourplex Long history of violation of the zoning bylaw Long history of the municipality dithering over what to do with illegal suites Many members of public opposed to rewarding a lawbreaker by legitimizing illegal use

43 Pucci v. North Vancouver (City) Bylaw defeated after public hearing Councillors indicated that they were not happy about legitimizing unlawful use Owner challenged decision to defeat alleging that planning powers were being used to punish Issue: is Council confined to only considering planning purposes, or was power over rezoning broader than that?

44 Pucci v. North Vancouver I conclude council s use of its authority to defeat a rezoning application is not confined to a consideration of valid planning purposes but rather is broad enough to address issues of public confidence in the integrity of the zoning process. I do not see in council s action in the present case an attempt at enforcement... rejecting the petitioner s application to rezone, council... not depriving them of something... entitled to as of right. Council... entitled to consider

45 Pucci v. North Vancouver (City) Error to not make full zoning enforcment history part of the material, including information about enforcement moratoriums and long forbearance of enforcement activity its failure to consider [past non compliance] in the full context of relevant evidence or information, led to an erroneous assumption about the nature and extent of bad behaviour

46 Pucci v North Vancouver (City) Council not confined to consideration of planning purposes on rezoning However, important to ensure that full context is part of the consideration Court may review the record with a fairly careful eye

47 Nightmare Public Hearing Cameron v. Sechelt (District) Hubbard v. N. Vancouver: to warrant new public hearing information must be new; depends on circumstances of each case In Sechelt, municipality received waste management plan after the meeting; held Q & A session with public

48 Cameron v. Sechelt (District) Court held: New information was not merely clarification Receipt of information after the public hearing rendered the process unfair Q & A session was well intended but not a substitute for a public hearing

49 Victoria (City) v. Adams

50 Victoria (City) v. Adams, 2009 BCCA 563 Court of Appeal upheld trial decision that certain provisions in bylaw prohibiting the erection of temporary overnight shelter violate right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms

51 Victoria (City) v. Adams Clarified that trial judge s reference to temporary meant overnight, rather than not permanent Left open possibility that if circumstances change (i.e., if the number of shelter beds exceeds the number of homeless people) the City could apply to have order cancelled, on basis that bylaw no longer unconstitutional

52 New Court Rules As of July 1, 2010 new Court Rules came into effect for B.C. Supreme Court Purposes: speed up process times simplify process force parties to come to grips with their claim/defence more quickly

53 New Court Rules Changes old: new: writ of summons, statement of claim or petition notice of civil claim or petition

54 New Court Rules old: new: 8 days to file appearance 21 days after statement of claim to file defence 21 days to file a Response that includes substantive answers

55 New Court Rules Affidavits: If petition must file affidavits with petition or Response (unless other side agrees) Documents: List of documents must be filed within 35 days after end of pleading period Fast Track for claims less than $100,000/less than 3 day trial - 2 hours of discovery only

56 New Court Rules What the corporate officer needs to do Act quickly to call MIA or municipal solicitor because of short time for Response or fax all documents served to MIA or solicitor Start assembling documents early

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