The recent decision of Armstrong v. District of North Saanich, 2024 BCSC 1844 involved the District of North Saanich finding itself in the middle of a neighbour dispute. It is an important decision in confirming that the courts cannot and will not interfere with local government decisions so long as the local government can demonstrate it acted on the basis of at least one reasonable interpretation of the legislative framework granting it authority to act. Even where there is another reasonable interpretation of the legislative framework, even a stronger interpretation, that is not sufficient to authorize the Court to interfere with the local government’s decisions or actions.
In this case, Robert Armstrong and Margaret Latham (the “Armstrongs”) bought a property overlooking the Saanich Inlet through which the neighbouring owners, James Grier and Mary Jean Alger (the “Griers”), had a pre-existing easement. The Armstrongs knew about the easement when purchasing their property, but there were no structures built in the easement when they made the purchase and they did not see any particular text in the easement suggesting a right to build was included in that easement. Subsequent to the Armstrongs moving onto their property, the Griers hired a carpenter to build a staircase from their non-waterfront property down to the water’s edge through the easement on the Armstrongs’ property.
The Griers built the staircase without having first applied for and obtained the necessary development permit and building permit from the District of North Saanich. The Armstrongs raised the lack of permits with the District after thee stairs were built which caused the Griers to seek the necessary permits retroactively. The District subsequently issued the permits confirming that the stairs met all environmental and regulatory requirements and were therefore in compliance with the applicable regulations.
The Armstrongs brought a petition for judicial review, seeking to set aside the decision of the District to process the applications for permits for the stairs. They also asked the Court for an order that the stairs be removed. The Griers and the District opposed these applications.
The Griers brought their own cross-petition asking the Court to declare that the easement did give them the legal right to build the stairs.
The Honourable Justice Greenwood concluded that: (1) the easement included the right to build a staircase as a necessary ancillary right, (2) the District’s decision to process the permit application and issue a permit was not unreasonable, and (3) there was no proper basis upon which to grant the relief sought by the Armstrongs.
The Armstrongs argued that the Griers were not “owners” capable of applying for permits for the stairs, and, accordingly, the District ought not to have processed their retroactive permit applications. The Court assessed the reasonableness of the District having processed the permit applications and found it, ultimately, to have been reasonable.
The definition of “owner” in both the Local Government Act, and the Community Charter includes “the registered owner of an estate in fee simple,” but makes no reference to the holder of a charge such as an easement. Pursuant to section 40 of the Interpretation Act, the same definitions are applicable to all enactments related to municipal or regional district matters, which includes bylaws by virtue of the definitions in s. 1 of the Interpretation Act.
The Court agreed that the plain wording of the statutes in question offered relatively strong support for the Armstrongs’ position. There is no reference to the holder of a charge in land or an easement in the definition of “owner.” However, the Court noted that while that was one reasonable interpretation of the legislation, the question is whether that is the only reasonable interpretation.
In accepting the permit application, the District was interpreting and applying its own bylaw, namely the Development Applications Procedures Bylaw. That bylaw provided as follows: “An Application made pursuant to this bylaw shall be made to the Director and shall be executed in writing by the Owner(s) of the Site that is subject to the Application, or by a person authorized by the Owner(s).”
The bylaw also defined the term “owner” as follows: “In respect of real property, the registered owner of such property, as verified by the District through either a Land Title Office search or BC Assessment Roll search, or such owner’s agent designated by the owner in writing.”
The reference to registered ownership being verified through a Land Title Office search was relied on by the District. Section 1 of the Land Title Act defines “owner” as “a person registered in the records as owner of land or of a charge on land, whether entitled to it in the person’s own right or in a representative capacity or otherwise, and includes a registered owner.”
The Court found that the reference to land titles for confirmation of ownership introduced the concept of how the Land Title and Survey Authority treats ownership and brought the definition under the Land Title Act into play, which includes easements. The easement in this case was registered in the land title office, and the Griers were the owners of the easement charge on land.
Mr. Justice Greenwood concluded the District had chosen one of the reasonable interpretations of the meaning of “owner” in this case: “In my view, there were two competing interpretations of the relevant legislation. While the Armstrong petitioner’s interpretation may be stronger on a strict statutory interpretation basis, I am not persuaded it is the only reasonable interpretation of the District’s authority in light of the legal and factual constraints they were under, and the common law nature of an easement.”
This decision demonstrates that the courts continue to exercise a deferential approach to assessment of local government action in keeping with the guidance from the Supreme Court of Canada in its 2019 decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. While, in this case, the Armstrongs had a stronger interpretation of the legislative framework than did the District, the Court found it had no authority to overturn the district’s decision so long as the District could also demonstrate a reasonable, if weaker, interpretation of the legislative framework that had guided its decision to process the permits.
