Claim for Abuse of Public Office Rejected

The recent British Columbia Supreme Court case of Scory v. Langley (Township) may be of interest to local government.

The Plaintiff, Mr. Scory, brought action against the Township for damages allegedly resulting from the Defendant Township delaying the issuance of a building permit through what the Plaintiff claimed was an abuse of public office.

Mr. Scory applied for a building permit in August 2010 to construct a house on land adjacent to a fish bearing stream.

The Township required that Mr. Scory provide confirmation that the Fisheries Act and applicable guidelines for carrying on work which may be harmful, alter, disrupt or destroy fish habitat were complied with, including any setbacks applicable. It appears the Township also took the position at one point that Mr. Scory had to comply with the Riparian Areas Regulation as a condition of obtaining a building permit, but it appears the Township dropped this requirement.

The building permit was eventually issued some 14 months after the original application and after requirements that were imposed were fulfilled.

Mr. Scory alleged that the Fisheries Act and its guidelines, being federal legislation, fell outside of the jurisdiction and authority of the Township to apply and enforce, and that those requirements should not have formed an impediment to the granting of the building permit.  In support of the allegation of abuse of public office, Mr. Scory claimed that the Township knew that it did not have the authority to require landowners to comply with the Fisheries Act in order to obtain the building permit.

The Township relied upon its Building Bylaw, which authorized it to issue a building permit where the proposed work met all requirements of that Bylaw, the BC Building Code, and “all other applicable enactments”, among other things.  Whether or not the Township could properly rely upon insistence of compliance with the Fisheries Act under these circumstances as an “other applicable enactment” under its Building Bylaw is the issue of most interest in this case.  However, for reasons described later, the Court found that it did not have to rule on that issue.

The Court found that the essential elements of the tort of abuse of public office were not established by Mr. Scory, and therefore the claim failed.  Those essential elements included proof that the public official exercised power for the specific purpose of injuring the Plaintiff (i.e. acting in bad faith and for an improper or ulterior motive), or acting unlawfully and with a reckless indifference to the illegality of the legislation and the probability of injury to the Plaintiff.  In satisfying the second part of this test (acting unlawfully with reckless indifference), it must be shown that the public official engaged in deliberate and unlawful conduct, and that the public official was aware both that his or her conduct was unlawful and that it was likely to harm the Plaintiff.

The Court in this case was unable to find that Mr. Scory proved all of the required elements, and found no evidence that the employees of the Township exercised any power for the express purpose of injuring Mr. Scory.  Thus, the Court found that it did not have to determine whether the Township had the authority to require compliance with the Fisheries Act to obtain a building permit.

It is somewhat unfortunate that the Court did not rule on this issue having regard to the fact that many building bylaws rely upon the same wording as contained in the Township of Langley’s Building Bylaw (requiring compliance with “other enactments” as part of a building permit application requirement).

The Community Charter provides that by bylaw a Council may “regulate, prohibit and impose requirements” in relation to buildings and other structures. Under section 53(2) of the Charter, that authority may only be exercised for certain specific purposes including the health, safety and protection of persons or property. Under the Charter, a Council may also provide for a system of permits or approvals establishing terms and conditions that must be met for obtaining a permit or approval (section 15).  Within this sphere of regulation of buildings and other structures and the issuance of permits or approvals, it could be argued that any legislation respecting health and safety should reasonably be seen as among the “other enactments” for which a municipality would have the authority to require compliance before the issuance of a building permit.  In fact, the Court in the Scory decision, while not ruling on the issue of compliance with the Fisheries Act, did state that “there can be no dispute that the Defendant had the authority to require a storm water assessment, site inspections and professional confirmation of compliance with the Building Code”.

The case leaves open the question as to what provincial or federal legislation, if any, would constitute “other enactments” for purposes of a municipal building bylaw, whether health and safety related or not.  The Fisheries Act and guidelines are unlikely to be found to be health and safety related, given that they are directed at the protection of fish habitat.  Local governments should be aware that the ability to seek compliance with requirements as may be imposed by other levels of government in the process of the issuance of building permits continues to be somewhat uncertain, particularly in matters unrelated to health and safety.  Should local government become aware (by virtue of a Court decision for example) that imposing a requirement outside of its authority is not lawful, it may run the risk of a claim in damages for delay or wrongful refusal in the issuance of a building permit, and may face a claim based upon an allegation of abuse of public office if the elements necessary can be made out.