Giving Reasons For Local Government Decisions
In a series of Court decisions covering a variety of subject matters regulated by local government, it is increasingly clear that the Courts will now impose a requirement for elected officials to give reasons for the decisions made by them. The question that arises for staff is how to effectively meet this new obligation to give reasons.

As we reported in Giving Reasons in Zoning Matters, the Supreme Court of Canada in a Quebec case involving Jehovah’s Witnesses Congregation v. Village of Lafontaine held that the denial of a rezoning application, without the Council giving reasons for the denial, amounted to a breach of procedural fairness. Imposing an obligation to give reasons in a rezoning matter is a novel proposition here in British Columbia where zoning has always been seen as a legislative process.

In British Columbia, the Lafontaine decision has not yet been followed in a challenge to a rezoning decision, but it will no doubt happen soon. Lafontaine, however, was applied by the B.C. Supreme Court in Westwood Congregation of Jehovah’s Witnesses (Trustees of) v. Coquitlam (City) where there was a successful challenge to the City’s refusal to grant a permissive tax exemption. The Court held:

I conclude that Council was required to give reasons to the Congregation for its refusal to include the Congregation in the permissive exemptions. Such reasons needed to include Council’s reasons for refusing the Congregation’s request for exemption. The reasons needed to go beyond a mere recitation of the Policy.

Council did not provide reasons for its refusal that addressed the merits of the Congregation’s applications. Accordingly, I find that Council breached the duty of procedural fairness that it owed to the Congregation in its deliberations with respect to the bylaws.

The Courts have for many years imposed a duty of procedural fairness in excess of the obligations set out in the statutory requirement for rezoning applications, such as the duty of disclosure prior to a public hearing. However, the imposition of a requirement for Council to give reasons for its decisions raises issues for staff about how best to meet this requirement.

Under no circumstances should there be a transcript of individual elected officials explaining publicly how or why they are voting. Rather, I believe guidance for how to give reasons can be found in two recent business license cases where the Courts upheld the local government sending a letter, through its staff, to the affected party briefly setting out the basis for Council’s decision. Hopefully, the basis for Council’s decision will be similar to the considerations set out in the staff report to the Council prior to the decision being made. So long as the applicant understands the basis of Council’s decision, then brief written reasons in a letter from staff should be seen as sufficient to comply with the requirement to give reasons.
In 552197 B.C. Ltd. v. City of Abbotsford, a 2003 decision of the B.C. Supreme Court, the Court stated:

The reasons are not comprehensive. However, there is no doubt that the owners of the club were aware of the reasons for Council’s decision. The club had had lengthy dealings with the police and Council. The concerns of Council must have been well known to the operators of the club. There could not have been any mystery as to the reasons for the suspension. Courts give reasons to parties in order to ensure that they have a reasonable understanding of a decision. Accordingly, with respect, there is no merit to this argument.

In 377050 B.C. Ltd. v. Burnaby (City), the B.C. Court of Appeal stated:

The respondent clearly knew the issues that were troubling the City. An April 4, 2006 letter from Council provided adequate reasons in the circumstances of this case. That letter replied to an inquiry made by counsel for the respondent. It noted that the municipality did not base its decision on the contravention of any particular bylaw or policy and stated that Council exercised its authority under s. 60 of the Community Charter to not renew the business license for what it considered to be reasonable cause: poor management of the operation of the motel giving rise to concerns for public safety, the enjoyment of use of neighbouring properties and a high demand for police services related to the business.

Municipal councils are not courts. Their reasons should not be scrutinized with the same criteria as judicial reasons. Decisions by councils are made by a vote. The votes taken into account the public interest. They also may reflect political considerations.

Conclusion
As long as a local government is satisfied that it has made the applicant aware of the issues which the elected body was considering and has given the applicant the opportunity to be heard in response to those issues, a brief description of the basis for Council’s decision in a letter from staff consisting of two or three sentences should be sufficient in British Columbia if it accurately addresses the merits of the application.

Guy McDannold

This article was published in Fall 2007 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.