Campaign Contributions from Developers with “In-Stream” Development Applications held not to Create a Conflict of Interest.

In Reasons for Judgement issued January 8, 2021 in Allan v Froese, 2021 BCSC 28 [Allan], the BC Supreme Court upheld the long-standing principle that the acceptance of a campaign contribution from a developer to an elected local government official does not establish that the official has a monetary interest in that developer’s matters before council without evidence of “something more”.

Jeff Locke and Andrew Buckley of Stewart McDannold Stuart “vigorously defended” the mayor, two current councilors and one former councilor from the Township of Langley in the Allen matter and successfully argued that the fact that a developer’s development applications were “in-stream” before council at the time the contributions were received does not constitute that “something more”. As Justice Walker concluded at the end of his judgement: (more…)

The Limitation Defence in the Public Authorities Context: A Tool for Disposing of Claims Summarily

The civic functions performed by many public authorities put their employees in routine contact with members of the public. As can be expected, their public-facing nature will consequently make these public bodies and their employees the target of some frivolous litigation. The finite time and financial resources available to address these nuisance claims are an unfortunate reality that strains the legal budgets of public authorities and acts as a drain on the use of limited court resources. Addressing and disposing of such claims in a time and cost-sensitive manner is in the best interest of the public authority so that these organizations and their legal counsel can focus their time and resources on more pressing legal matters. (more…)

Surrey not Responsible for Tree Fallen on a Car Due to Policy Defence

A claim against the City of Surrey recently came before the B.C. Civil Resolution Tribunal for the relatively modest amount of $5,000, but the decision of the Tribunal is nevertheless illustrative of the power of the policy immunity defence for local governments facing claims of negligence. (more…)

Supreme Court of Canada Greenlights Appeal of Municipal Snow Clearing Case

On August 20, 2020, the Supreme Court of Canada granted leave to hear a future appeal in the matter of Marchi v. City of Nelson.

This case arose from an incident in Nelson, BC in January 2015. The City was experiencing a heavy snowfall and on the early morning of January 5 sent out City crews to plow the main downtown area. The plowing created snowbanks along the curb and onto the sidewalk of the streets.  On January 6, 2015, Ms. Marchi parked her car along Baker Street in downtown Nelson and attempted to make her way to the sidewalk. Seeing no other convenient way of getting to the sidewalk, she attempted to walk over the snowbank left by the City’s work crews, which was approximately 2’ high, 2-3’ wide, and appeared to run the length of the block. As Ms. Marchi attempted to cross the snowbank, her right foot sunk deep into the snow and she suffered a serious injury to her leg. Ms. Marchi sued the City, alleging it was negligent in leaving the snowbanks along the road without spaces for pedestrians to cross from their car onto the sidewalk. (more…)

Won’t you be my neighbour?

The recent decision of Pellegrin v. Wheeldon, 2020 BCPC 143 reads as an “instructable” on neighbourly nuisances.  In Judge Catherine Crockett’s judgment she reviews a lengthy history of behaviour between neighbours that would make Mr. Rogers shudder. Judge Crockett uses this decision as an opportunity to give a lesson on the torts of nuisance and trespass, and the differences and similarities between these causes of actions. As most local governments have the power to regulate or prohibit nuisances by bylaw pursuant to sections 8(3)(h) and 64 of the Community Charter or Division 6 of Part 9 of the Local Government Act,  it is an interesting case to read for the sheer volume of different types of objectionable behaviour that are captured in the decision.

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Damages Claim Relating to a Zoning Error Dismissed for Failing to Establish a Private Law Duty of Care Where Only a Public Duty Existed

The BC Supreme Court recently dismissed an action brought against the Regional District of Okanagan-Similkameen (the “RDOS”) by a land owner and developer seeking lost profits and other damages relating to the alleged frustration of his attempts to move forward with a planned large-scale development. Jeff Locke and Josh Krusell of Stewart McDannold Stuart successfully defended the RDOS in this proceeding. The developer’s claim largely related to the decision of the RDOS Board to down-zone the subject property after it was discovered that the property had been inadvertently up-zoned years earlier. (more…)

Court Finds that Zoning Bylaw is Consistent with Official Community Plan and Denies Challenge Brought by Community Association against High-density Development

The B.C. Supreme Court recently dismissed a judicial review petition challenging the validity of a Town of Gibsons zoning bylaw amendment on grounds that it conflicted with the Official Community Plan (OCP) by allowing for a new high-density residential development in Gibsons. (more…)

Court of Appeal weighs in on Application of Vavilov to Local Governments

Last year, the Supreme Court of Canada in the decision of Canada (Minister of Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”), revised the test for determining the applicable standard of review in judicial review decisions. Following Vavilov, the default standard of review is reasonableness, subject to a few very specific exceptions. For a more detailed analysis of Vavilov see a summary of the decision previously published on our website here.

As most types of local government decisions do not fall into the limited exceptions, we have been waiting to see how the new judicial review test and framework will play out in the context of local government decisions. We recently provided analysis of a local government judicial review in the post-Vavilov world conducted by the BC Supreme Court, which can be found here. (more…)

Court Approval of Waiver of Liability Clauses Contained in Section 219 Covenants

Recently, in Nelson v British Columbia (Environment), 2020 BCSC 479 (“Nelson”), the BC Supreme Court examined and ultimately approved a broad exclusion of liability clause contained in a restrictive covenant registered on title to property pursuant to section 219 of the Land Title Act, RSBC 1996, c. 250 (the “LTA”).

Under the LTA, an Approving Officer may, as a condition of approving a subdivision, require that a restrictive covenant be registered on title to the lands being subdivided “if the approving officer considers that the land is, or could reasonably be expected to be, subject to flooding, erosion, land slip or avalanche”.  Under the LTA, such covenants may contain terms “of a negative or positive nature”.  The LTA also makes express provision for the inclusion of indemnity provisions whereby the subdividing party, and the successors in title to that party, may be obliged to indemnify the subdividing authority for matters addressed in the covenant. (more…)

Vavilov in Action: New Test and Framework for Standard of Review applied in Local Government Context

As addressed in a previous post, in December 2019, the Supreme Court of Canada released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] which introduced a new test for the determination of the applicable standard of review of administrative decisions and revised the framework for conducting reasonableness review. (more…)