The question of whether the British Columbia Court of Appeal has the jurisdiction and authority to suspend an order by the B.C. Supreme Court setting aside or quashing local government bylaws pending an appeal has not been expressly answered by the Court of Appeal until just recently.
On February 25, 2009 the B.C. Court of Appeal in Western Forest Products Inc. v. Capital Regional District answered this question affirmatively for the first time. In December 2008 the B.C. Supreme Court allowed the application by WFP and quashed a number of CRD zoning and OCP bylaws. The CRD appealed to the Court of Appeal and applied for a stay of the B.C. Supreme Court Order setting aside the bylaws pending the determination of the appeal. WFP argued that the Court of Appeal did not have the jurisdiction to grant the stay or suspension of the B.C. Supreme Court Order.
In allowing the CRD’s application, the Court stated:
The power to grant a stay pending appeal is conferred by s. 18(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77. That section reads:
18(1) After an appeal or application for leave to appeal is brought, a justice may, on terms the justice considers appropriate, order that all or part of the proceedings, including execution, in the cause or matter from which the appeal has been taken are stayed in whole or in part.
The purpose of a stay is to temporarily suspend the operation of the decision made by the court from which the appeal is taken. That decision is evinced by that court’s formal order (i.e. judgment). In this case, the formal orders that have been entered include recitals declaring the cost-sharing agreements unlawful, and quashing the bylaws. As those orders are “part of the proceedings … in the cause or matter from which the appeal has been taken”, I have the power to stay them, i.e., to suspend their operation. …
The Court went on to hold that a stay should be granted in this case as there was merit to the appeal, potential for irreparable harm, and the balance of convenience favoured a stay order being granted. On the issue of irreparable harm the Court stated:
In my view, there is the potential for irreparable harm if a stay is not granted. The CRD is responsible for regulating land development in the Juan de Fuca Electoral Area in a manner it considers to be in the public interest. To allow development and growth to proceed contrary to the CRD’s express wishes would result in harm to the public interest if this Court finds that the impugned bylaws were properly adopted. Further, given the present uncertainty as to which bylaws govern, allowing matters to proceed under the old bylaws could result in what ultimately proves to be the unnecessary expenditure of funds by the CRD, landowners, potential developers, and others.
This case is of significance for local governments as it is now clear that, pending the determination of an appeal by the Court of Appeal, they can apply for an order temporarily suspending a lower court’s order quashing a bylaw. They must show that (a) there is merit to the appeal, (b) there is potential for irreparable harm if the stay is not granted and (c) the balance of convenience lies with the Court of Appeal granting a temporary order that suspends the quashing order until the appeal has been determined.