Legal Advice helps Municipality defend “Abuse of Public Office” Claim
In March 2006, the BC Supreme Court dismissed claims of “misfeasance in public office” (aka “abuse of public office”) and “negligence” made by Windset Greenhouses against Delta and its officials. The BC Court of Appeal’s rejection of Windset’s appeal was reported in Windset Greenhouses (Ladner) Ltd. v. Delta 2007 BCCA 126 and will not be appealed further.

This was the sixth court proceeding between these two parties, related to Delta’s attempt to regulate greenhouses. Previously, the courts had ordered certain restrictive covenants to be cancelled, finding that the municipality did not have the authority to require restrictive covenants concerning habitat preservation, lighting and heating as a condition of issuance of building permits.

The courts also declared invalid portions of Delta’s business licence bylaw dealing with greenhouse lighting and heating, concluding that it was a “farm bylaw” which required Ministerial approval, that was not obtained, under section 917 of the Local Government Act. With these successful actions, Windset then sought damages to recover its losses from Delta.

The BC Court of Appeal cited the following fundamental principles from the Supreme Court of Canada’s judgment in Odhavji Estate v. Woodhouse 2003 3 SCR 263:

… The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of “bad faith” or “dishonesty”. In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office.

The court’s key finding is that the municipal officials had an “honest but mistaken belief” that the municipality did have the authority to require the restrictive covenants and adopt the business licence bylaw.

On the restrictive covenant issue, Delta’s lawyer initially provided an outline of the procedure, but apparently made “an incorrect assumption” that one of the statutory prerequisites had been satisfied. Although that assumption was clarified and corrected with later advice, the court accepted that the municipal official “did not understand the consequences of [that] advice”. Windset had not proven that Delta’s officials “acted with knowledge of, or [were] recklessly indifferent to, the fact that there was no power to require…the restrictive covenant …[which] would probably injure Windset”.

On the business licence issue, the court reached a similar conclusion, noting that “Delta received a legitimate legal opinion that it had power” to do what it did and therefore was “entitled to rely on the opinion”.

Lui Carvello, MCIP
Spring 2007

This article was published in Spring 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.