In 1976 in City of Vancouver v. Simpson, the Supreme Court of Canada settled the law relating to appeals from decisions of subdivision approving officers under section 89 of the Land Title Act. The Court limited the grounds for appealing those decisions to three grounds, namely, was the decision made
1. in bad faith,
2. with an intention to discriminate against the property owner, and
3. on a specious and totally inadequate factual basis?
The Supreme Court of Canada emphasized that, on an appeal from an approving officer’s decision, the Court should not interfere lightly with a decision that refuses to approve the subdivision application because the officer is of the opinion that the subdivision would be against the public interest.
During the 1980’s, some Judges became more proactive in their reviews and strayed from the limited grounds established in Vancouver v. Simpson. However, in 1989, the British Columbia Court of Appeal in Hlynsky v. West Vancouver firmly settled the principle that, on an appeal from an approving officer’s decision, the Court should have regard only to the three factors cited in the Vancouver v. Simpson case. The Court of Appeal stated that an appellate court should assess the approving officer’s decision by giving the officer considerable latitude and not lightly or arbitrarily coming to a conclusion contrary to that of the approving officer.
Then the Dunsmuir case was decided.
In March 2008, the Supreme Court of Canada gave its landmark judgment in Dunsmuir v. New Brunswick. It changed the law relating to judicial review of administrative law decisions by restructuring the approach a Court must take on a judicial review. The Dunsmuir decision has had a dramatic effect on Court reviews of administrative decisions in all areas of administrative law in Canada.
There arose a concern that the Dunsmuir decision may change the settled law set out in the Hlynsky judgment relating to approving officer appeals. That concern was finally laid to rest on February 5, 2010 in Edwards v. Noakes. The British Columbia Court of Appeal, in a unanimous ruling, held that the Dunsmuir decision did not apply to statutory appeals, such as appeals from an approving officer under section 89 of the Land Title Act. The Court confirmed that its 1989 judgment in Hlynsky remains the law in British Columbia as to the powers of the Court on an appeal from an approving officer’s decision.
The significance of this case is that the settled law in the Vancouver v. Simpson and Hlynsky v. West Vancouver cases remains the law on appeals from decisions by approving officers in British Columbia and will not be affected by the far reaching changes brought about by the Supreme Court of Canada’s judgment in Dunsmuir v. New Brunswick.