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…)

New Local Government Meetings and Bylaw Process (COVID-19) Order

On May 1, 2020 the Minister of Public Safety and Solicitor General issued the Local Government Meetings and Bylaw Process (COVID-19) Order No. 2. Ministerial Order No. 83/2020 (as referred to in our March 26, 2020 post) is repealed.

The new Order continues and expands upon the provisions of Ministerial Order 83/2020, by providing that the ability to hold an open meeting without the public being present is extended to a trust body, or a board of variance established by a local trust committee under the Islands Trust Act. For regional districts, the new Order makes it clear that in addition to boards and board committees, other bodies established by a regional district, such as a commission, are not required to allow members of the public to attend an open meeting. The ability to hold electronic meetings is similarly extended to other regional district bodies, to a trust body or board of variance under the Islands Trust Act, and to improvement district boards and their committees. For improvement districts, an annual general meeting is not permitted to be held by means of electronic or other communication facilities, but the new Order allows an improvement district to defer the date of its annual general meeting, and the preparation of its financial statements, to December 31, 2020. (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…)

Changing Property Tax Due Dates and Penalties in Response to the COVID-19 Pandemic

Under section 234 of the Community Charter, July 2 is the date on which property taxes for a year are due under the general tax collection scheme. The Municipal Tax Regulation provides that if all or part of the property taxes payable under the general tax collection scheme remain unpaid after July 2, the collector must add a penalty equal to 10% of the portion that remains unpaid. Under the general tax collection scheme, a municipal council does not have the authority to change the due date, or to provide any relief from the penalty provisions of the Municipal Tax Regulation. So far, the Province has not changed the due date under the general tax collection scheme in response to the COVID-19 pandemic, or the penalty provisions under the Municipal Tax Regulation. (more…)

Update re: Temporary Suspension of Limitation Periods in BC

On April 8, 2020, the Minister of Public Safety and Solicitor General made Ministerial Order MO98 pursuant to the Emergency Program Act, titled the Limitation Periods (COVID-19) Order No. 2. This Ministerial Order replaces MO86 made on March 26, 2020.

The new Ministerial Order continues to suspend all mandatory limitation periods and any other mandatory time periods for the commencement of a “civil or family action, proceeding, claim or appeal” in the Provincial Court, Supreme Court or Court of Appeal. However, it has carved out an exception for limitation periods and time periods under the Builders Lien Act and certain provisions of the Strata Property Act. Therefore, limitation periods and other mandatory time periods related to builders’ liens remain in effect.

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…)

Protection Against Liability for Essential Service Providers

On April 2, 2020, the Minister of Public Safety and Solicitor General made Ministerial Order M094 pursuant to the Emergency Program Act, RSBC 1996, c. 111, titled Protection Against Liability (COVID-19) Order. Order M094 will remain in effect until the declaration of a state of emergency expires or is cancelled, or if extended, until the last extension of the declaration expires or is cancelled. (more…)

Guidelines for Bylaw Enforcement Officers assisting with enforcement of COVID-19 Public Health Orders

As we have previously noted on this page, on March 26, 2020 the Minister of Public Safety and Solicitor General issued Ministerial Order No. M082, which requires local authorities, to the greatest extent possible without unduly compromising any other bylaw enforcement objectives of the local authority, to ensure that their Bylaw Enforcement Officers provide assistance in the enforcement of public health orders. To that end, the Provincial Health Officer has now issued Compliance and Enforcement Guidelines for Bylaw Enforcement Officers who provide assistance with the enforcement of public health orders. The list of all current Public Health Officer Orders can be found here. (more…)

Ministerial Order under the Freedom of Information and Protection of Privacy Act

On March 26, 2020, the Minister of Citizens’ Services made Ministerial Order No. M085 pursuant to section 33.1(3) of the Freedom of Information and Protection of Privacy Act (“FIPPA”). Order M085 will remain in effect until June 30, 2020 unless rescinded by the Minister before that date. (more…)

Temporary Suspension of Limitation Periods in BC

On March 26, 2020, the Minister of Public Safety and Solicitor General made Ministerial Order M086 pursuant to the Emergency Program Act, titled the Limitation Periods (COVID-19) Order. This Ministerial Order reflects the significant impact the COVID-19 pandemic has had on all aspects of society, including legal proceedings. This Order acknowledges that it may not be possible for a person involved in legal or administrative proceedings to take steps within the timeframe required by legislation. As such, commencing March 26, 2020 and continuing until the provincial state of emergency expires or is cancelled, every mandatory limitation period and any other mandatory time period for the commencement of a “civil or family action, proceeding, claim or appeal” in the Provincial Court, Supreme Court or Court of Appeal is suspended. Additionally, any decisions required to be made within a statutorily defined timeframe by a person, tribunal, or other body may be waived, suspended, or extended by that decision maker.

Of note, the suspension of limitation periods does not appear to apply to deadlines for filing with tribunals or other administrative bodies.

A party wishing to nonetheless file a claim with the BC Supreme Court during this suspension, may do so electronically or in accordance with this court announcement.