In Fahr v Schnitzer Steel Canada Ltd., 2024 BCSC 296, the BC Supreme Court affirms that municipalities are not required to enforce bylaws so long as their decision to not undertake enforcement is done in good faith.This decision follows the Court’s prior decisions in Suncourt Homes (2019 BCSC 2258) and Lebourdais (2022 BCSC 281). Specifically, the Court endorsed the statement that “[m]unicipalities will be immune from liability if they contemplate [bylaw] enforcement in good faith, regardless whether action is ultimately taken.”
Background
The defendant, Schnitzer Steel Canada Ltd (“Schnitzer”), operates an automobile wrecking business within the Cowichan Valley Regional District (the “CVRD”). The plaintiffs are neighbours of Schnitzer and complained of “ongoing nuisance causing them property damage, emotional upset and pecuniary loss.”
The plaintiffs’ claimed the CVRD was liable in negligence because the CVRD failed to enforce bylaw provisions against Schnitzer which would have reduced or eliminated the harms it caused them.
In response, the CVRD brought an application to strike the plaintiffs’ negligence claim.
The Court’s Analysis
In assessing the CVRD’s application to strike, the Court could only dismiss the plaintiffs’ claim where it had no reasonable prospect of success and was bound to fail. Further, the Court had to assume that all facts pleaded by the plaintiffs in support of the claim were true at this stage.
Accordingly, the Court accepted as true the following relevant facts:
- the automobile wrecking facility (the “Facility”) is unlawful under CVRD bylaws concerning zoning and waste management;
- the Facility causes nuisance to the plaintiffs and the bylaws were enacted to prohibit such nuisance;
- in 2008 the CVRD sued to shut down the Facility, but abandoned the lawsuit;
- the CVRD is now negotiating to rezone Schnitzer’s land, which would include requirements on Schnitzer to work toward eliminating the nuisance;
- Schnitzer has submitted a rezoning application, which the CVRD will likely approve;
- the CVRD decided not to investigate the plaintiffs’ complaints about the Facility while this re-zoning application is under consideration; and
- if approved, the rezoning bylaw will legalise the Facility.
On the facts, the Court found that “the CVRD has attempted in good faith to balance legitimate but competing public interests” even though the CVRD’s process has taken many years. Further, the CVRD’s approach to dealing with the Facility “fits within its broad discretion in matters of bylaw enforcement and land use regulation”. Finally, the Court noted that there was no allegation that the CVRD “ever assumed responsibility for [the plaintiffs’] private law interests” or “stepped outside of its regulatory role”.
The Court confirmed that local governments owe no duty of care to someone harmed by bylaw violations of a third party where the local government has discretion regarding enforcement and has decided in good faith not to enforce. Since the plaintiffs alleged no bad faith on the part of the CVRD, and the bylaws in question did not mandate enforcement, the plaintiffs’ negligence claim was considered to be doomed to fail at the first stage of analysis regarding duty of care.
Held
In the result, the Court granted the CVRD’s application to strike. In doing so, the Court clarified that the plaintiffs “are perfectly entitled to pursue Schnitzer and [its landlord] for their alleged wrongdoing, of course, but [the plaintiffs’] attempt to attach responsibility for it to the CVRD is bound to fail”.
This article was co-authored by our articled student, Mel van Fram.
