Right or Reasonable: Judicial Review of the Decisions of Bylaw Adjudicators

In Romegioli v. Langley (Township) 2018 BCSC 1867, the B.C. Supreme Court recently had opportunity to judicially review the decision of a bylaw adjudicator upholding over 500 bylaw infraction notices (with associated fees and costs of approximately $270,000) that had been issued to the petitioner, Mr. Romegioli, relating to the operation of a cannabis dispensary. The dispensary caught the attention of Langley for breaches of multiple bylaws relating to operations, renovations and signage.

This decision is important in confirming, as was held in previous decisions of the court in Yard Investment Inc. v. Langley (Township) 2018 BCSC 1658 and Leaf v. Langley (Township)2018 BCSC 335, that an adjudicator or tribunal reviewing whether to uphold bylaw infraction notices will be held to a reasonableness standard of review by the courts, and not correctness. Further, the decision also recognizes that bylaw infraction notices may be issued to persons other than the owner or lessee of the property/premises that is in contravention of a bylaw, as the language at sub-section 4(3) of the Local Government Bylaw Enforcement Act (the “Act”) may be interpreted broadly where it permits a bylaw notice to be issued to “a person against whom a bylaw contravention is alleged”.

Mr. Romegioli is the sole director and shareholder of a numbered company that leased a building in the Township of Langley to operate a cannabis dispensary. While the lease was executed between the property owner and Mr. Romegioli’s numbered company, the lease stated that Mr. Romegioli personally provided a covenant to indemnify the property owner from certain harms, including penalties for bylaw infractions at the property.

After being issued the bylaw infraction notices from Langley, Mr. Romegioli disputed through Langley’s bylaw adjudication system, which was established in accordance with the Act, that he should be the recipient of the notices and the party responsible for the associated fines. TheAct provides that the role of the adjudicator in this process is to decide, on a balance of probabilities, based on all of the information put before him or her, whether “the contravention alleged in the bylaw occurred as alleged”. The adjudicator in this case rendered an oral decision upholding the notices and later provided a written confirmation.

Mr. Romegioli subsequently brought his petition for judicial review, arguing that the adjudicator’s decision was in error of law because it was premised on a finding that Mr. Romegioli had provided a covenant in the lease even though he was not a contracting party, and such interpretation therefore violated the principle of privity of contract.

Madam Justice Iyer presided over the petition and commented on the reasonableness standard of review to be applied by the courts to the adjudicator’s decision by stating that:

 [T]he task of the reviewing court is not to ask whether the decision maker accepted or rejected particular submissions. It is to ask whether the outcome is supported by the law and the evidence.

Iyer J. disagreed that there was evidence on the record to permit the finding that the adjudicator had entirely premised her decision on whether or not Mr. Romegioli was bound, at law, as a covenantor to the property owner. The Court noted that “the Actrequired the adjudicator to determine only whether Mr. Romegioli was responsible for the bylaw infractions, in that he was aware of the conduct and could have done something about it”, and, accordingly, the adjudicator need not find that Mr. Romegioli was an owner, lessee or covenantor.

The Court found that, leaving aside the issue of the content of the lease, there was evidence before the adjudicator that Mr. Romegioli was the sole shareholder of the numbered company lessee, he was on the premises, he had represented himself as being in charge, and he had accepted the bylaw infraction notices. Accordingly, the Court held that the adjudicator’s decision to uphold the bylaw notices fell within the range of acceptable outcomes defensible in light of the facts and the law.

Accordingly, the Court dismissed Mr. Romegioli’s application for judicial review.