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Introduction

Fulton recently acted for the Regional District of North Okanagan (“RDNO”) in litigation concerning a dispute involving public lands and Provincial foreshore licenses. The resulting decision, which dismissed all claims against the RDNO, solidifies local governments’ discretionary decision-making authority regarding lands acquired for a public purpose.

Background

The plaintiffs were residential property owners in Vernon. The plaintiffs’ property was separated from Kalamalka Lake by a corridor of land that is now known as the “Okanagan Rail Trail.” At the time the plaintiffs purchased the property, the Kelowna Pacific Railway owned the Okanagan Rail Trail corridor. The plaintiffs had a crossing agreement with the Railway, which allowed them to access the foreshore of the Lake. The plaintiffs also obtained a foreshore license from the Province, which permitted them to construct and use a dock on the foreshore of the lake for a term of ten years.

The RDNO acquired the Okanagan Rail Trail corridor and converted it to public use. The Board resolved that it would not support any applications for private dock licenses on Kalamalka Lake. The plaintiffs attempted to renew their Provincial foreshore license and were told that the RDNO would not support their renewal application. In December 2017, the plaintiffs obtained legal counsel and wrote to the RDNO arguing that they were entitled to the RDNO’s support for their renewal application, citing the principle of proprietary estoppel. In April 2021, the Province notified the plaintiffs that their dock was in trespass.

Court’s Decision

The plaintiffs commenced this action at the Supreme Court of British Columbia in May 2021. They relied on the principle of proprietary estoppel and sought a declaratory easement along the Okanagan Rail Trail. The plaintiffs further argued that the RDNO had assured them that, despite any future acquisition of the Rail Trail corridor, it would support their application for renewal of the foreshore license.

The RDNO argued that the plaintiffs’ claims were statute barred: the applicable limitation period was two years and the latest that period would have begun running was the December 2017 letter from their lawyer. In the alternative, the RDNO submitted that the plaintiffs’ claim in proprietary estoppel must fail because they had not established that the RDNO had made any assurances to the plaintiffs. In the further alternative, the RDNO submitted that if an assurance was given, the plaintiffs’ reliance on that assurance was not reasonable.

The plaintiffs argued that the limitation period had not expired because the RDNO had never provided a definitive answer to their December 2017 letter. The Court rejected this argument and held that the plaintiffs were aware of the RDNO’s position in December 2017, and so the two-year limitation period ended in December 2019.

The Court went on to canvass the elements of proprietary estoppel, being: 1) an assurance from the RDNO; 2) reasonable reliance by the plaintiffs; and 3) the plaintiffs suffering a detriment as a result of their reliance. On the first element, the Court held that there was insufficient evidence to support the plaintiffs’ assertion that they had received assurances from the RDNO that it wouldsupport any future foreshore license renewal application. Rather, the plaintiffs’ evidence spoke only to their belief or understanding of an assurance. They had not proven that anyone with authority at the RDNO had actually made any specific statement to them.

On the second element, the Court held that any expectation by the plaintiffs of their continued use of the dock past the ten-year term of the license was unreasonable. Given that the Province, not the RDNO, is responsible for the granting of foreshore licenses, the assurance that the plaintiffs would retain entitlement to their dock was not something within the RDNO’s control. As a result, the Court held that the plaintiffs’ expectations were incapable of supporting a claim in proprietary estoppel.

In light of the Court’s earlier conclusions, the Court did not address the third element of proprietary estoppel. The plaintiffs’ claims were dismissed.

Takeaways

This decision helps to clarify the application of limitation periods and proprietary estoppel as against local governments.

The Court’s rejection of the plaintiffs’ limitation argument – that the limitation period had not yet started because the RDNO had never definitively closed the door on supporting their license renewal – will be welcomed by local governments. Had this argument succeeded, it would have prevented local governments from relying on limitation periods in many cases, since it is always possible for a future board or council to reconsider a previous decision.

As for proprietary estoppel, this decision underscores that local governments will rarely be liable for assurances given by individuals who lack the legal authority to bind them. Further, for reliance to be reasonable, the subject of the assurance must be within the control of the local government.

This case also further supports local governments’ discretionary decision-making authority regarding lands acquired for a public purpose.
When communicating with members of the public in contentious situations, the following tips can help to mitigate a local government’s risk:

• Consider seeking legal advice before committing to a position;
• Ensure to convey the local government’s position with utmost clarity, preferably in writing; and
• Ensure that staff do not make representations on topics that are properly matters for the local government’s board or council.

If you have questions, contact a member of our experienced Local Government Team.

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Introduction

BC Courts have previously confirmed that a property owner cannot be held liable in negligence for injuries sustained by a third party when a property owner fails to clear a sidewalk owned by the local government, even if the local government has a bylaw requiring the owner to clear the sidewalk.

However, local governments may still require that owners clear snow and ice from sidewalks in their bylaws, enforcing the requirement through ticketing.

Against this background, the British Columbia Supreme Court recently upheld a bylaw court decision dismissing the City of Vancouver’s charge against a resident for failing to remove snow and ice from his sidewalk. This decision underlines the need for clear drafting of bylaws to ensure enforceability.

Background

The accused was charged with failing to remove snow and ice from his sidewalk under section 76 of the City’s Street and Traffic By-Law No. 2849 (the “Bylaw”). The relevant Bylaw provision stated:

The owner or occupier of any parcel of real property shall, not later than 10:00 a.m. every day, remove snow and ice from any sidewalk adjacent to such parcel for a distance that coincides with the parcel’s property line and for the full width of the sidewalk. [emphasis added]

At trial, the Judicial Justice dismissed the charge.  The City appealed.

Trial Decision

At trial, the City’s witness testified that the City had received a complaint about snow on the accused’s sidewalk. The witness attended at the property and observed snow on the sidewalk.  Photographs tendered at trial indicated that some snow had been removed, but not all of it.

The Judicial Justice dismissed the charge, noting that the Bylaw required snow and ice to be “removed,” but did not require the sidewalk to be “perfectly clear.” As the photographs showed that some snow had been “removed”, the City had not proved its case.

Appeal Decision

On appeal, the City argued that the Judicial Justice had incorrectly interpreted the Bylaw by finding that the requirement to “remove” snow and ice did not require “all” snow and ice to be removed. The City argued that any interpretation that did not require all ice and snow be removed would render the Bylaw ambiguous and unenforceable.

The Court disagreed that the Bylaw required complete removal of snow, as the Bylaw did not require the “clearing of all snow and ice off a sidewalk”.  Accordingly, the appeal was dismissed.

Takeaways

This decision highlights the importance of using clear and unambiguous language in bylaw drafting. Bylaws that are capable of multiple interpretations may be unenforceable.

In light of this decision, local governments should review their snow removal bylaws and ensure that they include language that “all snow and ice be completely cleared”, or other unambiguous language.  This language should be similarly applied to other sidewalk clearing provisions, for example in relation to the accumulation of rubbish or dirt.

To mitigate the risks associated with ambiguous bylaws on an ongoing basis, local governments should:

• • retain counsel with experience in bylaw drafting to draft or review their bylaws;
  • use clear and unambiguous language in their bylaws; and
  • regularly review older bylaws and consider whether amendments are required.

Finally, to reduce liability that may befall the City due to slip-and-falls on snowy sidewalks, local governments may consider ticketing enforcement to ensure that property owners are proactive in completely clearing their sidewalks.

If you have questions, contact a member of our experienced Local Government Team.

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Yesterday, the Supreme Court of Canada released its decision in the City of Nelson snow clearing case (Nelson (City) v. Marchi, 2021 SCC 41) in which it confirmed and clarified the principle of policy immunity that can shield government bodies from claims in negligence.

On the facts of the case, the Court unanimously rejected the City’s policy defence, and ordered a new trial on standard of care and causation.

Background Facts

During a heavy snowfall, the City’s crews began plowing the streets in accordance with its written snow clearing policies and its unwritten practices. Crews cleared snow in angled parking stalls on a street in the City’s downtown core. Crews pushed the snow to the top of the parking spaces, creating a continuous snowbank along the curb between the parking stalls and the sidewalk. They did not clear an access route through the snowbank to access the sidewalk from the street. The plaintiff parked in one of the angled parking stalls and decided to cross the snowbank, seriously injuring her leg in the process. She sued the City for negligence.

Lower Court Decisions

The City argued that it was immune from liability because its decision not to clear the snowbanks right away was a core policy decision based on budgetary constraints – in essence, the City argued that it chose to deploy its staff to other tasks rather than to provide access through the snowbanks, in accordance with its policies and long-standing practice.  As such, it should not be required to pay damages to the plaintiff.

The trial judge agreed with the City.

The plaintiff appealed, and the BC Court of Appeal found in her favour. The City then appealed to the Supreme Court of Canada.

Supreme Court of Canada Decision

The Court unanimously held that the City’s decision to clear the snow from the parking stalls by creating snowbanks along the sidewalks without ensuring direct access to sidewalks was not a core policy decision. In explaining its decision, the Court confirmed that the following criteria are relevant to determining whether a particular decision is a core policy decision:

1. The level and responsibility of the decision-maker;
2. The process by which the decision was made;
3. The nature and extent of budgetary considerations; and,
4. The extent to which the decision was based on objective criteria.

The Court noted that none of these factors are determinative on their own, and courts must assess all the circumstances. The Court also noted that the fact that a local government calls something a “policy decision” is not determinative.

On application of these criteria, the Court found that the City’s decision bore none of the hallmarks of a core policy decision, because:

• The public works supervisor testified that she did not have the authority to make a different decision with respect to the clearing of parking stalls.
• There was no suggestion that the method of plowing the parking stalls resulted from a deliberate decision involving any balancing of competing objectives and policy goals by the supervisor or her superiors.
• There was no evidence suggesting an assessment was ever made about the feasibility of clearing pathways in the snowbanks.
• Although it was clear that budgetary considerations were involved, these were not high‑level budgetary considerations but rather the day‑to‑day budgetary considerations of individual employees.
• The City’s chosen method of plowing the parking stalls can easily be assessed based on objective criteria (e.g. a review of other local governments’ practices).

Accordingly, the City’s policy defence failed, and the Court ruled that the City owed the plaintiff a duty of care.

To be clear, the Court did not rule on whether the City was in fact negligent, or whether the City’s actions caused the injury – those will be the issues at a new trial.

Takeaways

The main takeaway from this decision is that the policy defence has been narrowed somewhat and local governments cannot expect to be able to rely on anything other than a comprehensive written policy adopted by elected officials or, at least, senior management. Unwritten departmental “policies” based on staff choices about how to prioritize scarce resources, or on long-standing practice, are very unlikely to form the basis of a successful defence.

We recommend that local governments review and update all of their policies for winter snow and ice clearing activities, as well as for other areas with high liability potential where the policy defence is commonly invoked. These include road/sidewalk maintenance and infrastructure repair/replacement.

Local governments should incorporate all important aspects of these activities into a written policy, leaving nothing important in the realm of “unwritten practice”. The resulting draft policy should be debated and adopted at a high level – preferably, by the council or board – with consideration given to overarching economic, social and political concerns, as well as objective standards.

Questions? Contact Devin Buchanan or our Local Government Law Team.

Local Government’s Powers Regarding Homeless Encampments

The BC Supreme Court recently issued a decision that impacts local governments’ ability to address homeless encampments that pose a fire risk: Vandenberg v. Vancouver (City) Fire and Rescue Services, 2023 BCSC 2104. This decision clarifies that when a local government’s fire chief determines that a homeless encampment poses a fire risk, before issuing any fire order, the fire chief must perform a proportionate balancing of the fire risk against the encampment occupants’ Charter rights and must give notice of the pending order and solicit feedback from the encampment occupants about the impact of the order on their ability to find safe shelter.

Background

In July 2022, a two-block stretch of East Hastings Street in Vancouver (the “City”) was the site of a longstanding and growing homeless encampment (the “Hastings Block”). The tents, tarps, and other materials used for shelter created a fire hazard, putting the encampment occupants, the occupants of nearby buildings, and first responders at risk. On July 25, 2022, Vancouver’s Fire Chief ordered the City to clear tarps, tents, and other structures from the Hastings Block pursuant to Vancouver’s Fire Bylaw (the “Fire Order”). Two occupants who were sheltering in the Hastings Block brought a petition for judicial review and sought an order striking the Fire Order. They asserted that the Fire Order was unreasonable because it was made without considering their section 7 (life, liberty, and security of the person) and section 15 (equality) rights under the Canadian Charter of Rights and Freedoms (the “Charter”).

Court’s Decision

The Court noted that the Fire Order mandated the removal of occupants’ tents, tarps, and other structures regardless of whether they were used for daytime or overnight sheltering. As a result, in the absence of viable and accessible indoor shelter, encampment occupants’ Charter rights were engaged. Given that the Fire Order engaged the Charter rights of Hastings Block occupants, the Fire Chief was required to engage in a proportionate balancing of her statutory mandate to address fire risks, against the fact that the tarps, tents, and other structures which constituted the fire risk were being used as shelter.

The Court reviewed the record documenting the Fire Chief’s decision-making process and concluded that she had engaged in a reasonable proportionate balancing of the Hastings Block occupants’ Charter rights and her statutory mandate to address fire hazards. In particular, the Court noted that the Fire Chief had considered the following:

• the Fire Chief had determined that the tarps, tents, and structures on Hastings Block were imminent fire hazards posing a life and safety risk because they were combustible and because they were blocking fire fighter’s access to firefighting equipment and blocking emergency egress from the adjacent buildings;
• the Fire Chief knew the occupants of Hastings Block were vulnerable and were sheltering in the tarps, tents, and structures that constituted a fire hazard; and
• the Fire Chief tried to get assistance with re-housing Hastings Block occupants before she made the Fire Order so that the Fire Order would not have the effect of depriving them of shelter, but no assistance was forthcoming.

Next, the Court concluded that the Fire Chief owed a duty of procedural fairness to the occupants of Hastings Block when deciding whether or not to issue the Fire Order. As a result, the Fire Chief was required to notify Hastings Block occupants of the pending Fire Order and provide them with an opportunity to make submissions on how the Fire Order would affect them. The Court concluded that the duty of procedural fairness was not met in this case; Hastings Block occupants were not given sufficient notice or an opportunity to make submissions on the impact of the Fire Order on their ability to find safe shelter.

Takeaways

In the context of this decision, local governments have heightened obligations when attempting to address fire risks in homeless encampments. This decision emphasizes that local governments owe a duty of procedural fairness not just when enforcing a fire order, but when determining whether or not to make such an order. Namely, a local government’s fire chief must balance the imminent fire risk caused by tents, tarps, and other structures against the occupants’ use of those things as shelter. Where an encampment poses an imminent fire risk, before ordering decampment, fire chiefs should:

• attempt to secure indoor shelter for all encampment occupants prior to issuing any fire order requiring removal of tents, tarps, and other structures;
• meet with local social service agencies to understand the individual needs of encampment occupants;
• partner with local social service agencies to disseminate fire safety information; and
• attempt to mitigate fire risks without decampment (e.g., assisting with removal of propane tanks and providing battery operated lights in exchange for candles).

If a fire order requiring removal of tarps, tents, and other structures is necessary to address encampment fire risks, the fire chief must give notice to encampment occupants and provide them with an opportunity to make submissions about the effect of the fire order on them. Fire chiefs should ensure that their decision-making record clearly reflects this proportionate balancing and all steps taken to protect encampment occupants’ Charter rights.

If you have questions, contact a member of our experienced Local Government Team.

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In The Redeemed Christian Church of God v. New Westminster (City) 2021 BCSC 1401, the court declared that the City of New Westminster infringed a religious group’s Charter-protected right to freedom of expression, when it cancelled the group’s event on grounds that the event would be discriminatory and would promote hatred against the LGBTQ community.   Although the court acknowledged that protecting LGBTQ rights was laudable, the court found that the City failed to hear from the group prior to canceling the event, and failed to adequately balance the group’s freedom of expression on one hand, and the City’s goals of promoting inclusivity and protecting minority rights on the other.

The takeaway for local governments is this: Before making a decision that may infringe an individual’s or group’s right to freedom of expression, seek out and consider information from both sides, attempt to balance the competing interests at stake, and ensure that any infringement of the freedom of expression resulting from the decision is kept to a minimum.

This decision also serves as a reminder that nearly all actions of a local government must comply with the Charter ­­– even a decision made in the context of a local government’s contractual relationship with a society.

Background Facts

A Christian-based religious society obtained a licence to host a youth conference in a ballroom within a City-owned event centre.

The City’s booking policy for the event centre states, among other things, that the City may prohibit groups if they promote hate or other unethical pursuits, or intend to conduct activities that are incongruent with the mission and vision of the centre and of the City.  The City’s council evidently endorses a vision of inclusivity and social equity, generally.

The theme of the event was “Let God Be True”, and the posters advertising the event used the acronym “LGBT” surrounded by rainbow colouring.

One month prior to the event, the City received a complaint from a member of the public that the event was anti-LGBTQ and would spread misinformation.  The complainant flagged one of the facilitators of the event as a prominent anti-LGBTQ speaker.  The City conducted its own research and determined that the facilitator had expressed anti-LGBTQ views on social media.  The director of the event centre, in consultation with others including the City’s CAO, canceled the society’s licence for the event, on the basis that the event would be contrary to the booking policy.  The director explained to the society that the facilitator “vocally represents views and a perspective that run counter to… the booking policy.”

A representative of the society requested to meet with the City to explain the event and the society’s intentions in holding the event.  The representative explained that the event would not promote hate, or violence.  Although the director of the event centre indicated a willingness to meet, they explained that the decision to cancel the event was final.  Counsel for the society later explained to the City that the focus of the event was to “consider Biblical views regarding sexuality and identity issues”.

Decision

The City did not dispute that the event was a form of expression protected under s.2(b) of the Charter, or that canceling the event infringed the society’s freedom of expression.  The court’s decision centered on whether the infringement was reasonably justified pursuant to s.1 of the Charter.  In determining this issue, the court considered whether the City’s decision was proportionately balanced having regard to the society’s rights and the City’s objectives, and was minimally impairing of the society’s rights – in the result, the court found in favour of the society.

In reaching this conclusion, the court criticized the City for making the decision to cancel the event based on information from one side only.  The court remarked that, while the City had researched the concerns raised about the facilitator, it did not take similar steps to inform itself of the content of the event, and declined to consider submissions from the society itself before making the decision.   Further, the court noted that the City did not consider how any infringement of the society’s rights of expression might be minimized.  The court described the City’s decision as “quick and precipitous”, and uninformed.

Takeaways

There are a number of other legal issues that were addressed in this case, including (with the court’s ruling in brackets): whether the society can use the judicial review procedure for a decision that is not a statutory decision (it cannot); whether the society has standing to assert the right to freedom of religion under the Charter (it does); whether the society’s freedom of association was infringed (it was not).

The primary importance of this decision to local governments stems from the court’s comments and review of the City’s decision, and decision-making process, to cancel an event and thereby infringe the organizer’s right to freedom of expression.

Questions? Contact Devin Buchanan or our Local Government Law Team.

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Local governments can breathe a sigh of relief after the recent decision of the British Columbia Court of Appeal in Rai v Sechelt, 2021 BCCA 349.

Background

Multiple property owners brought an action against the District of Sechelt after they were ordered to evacuate their properties as a result of land subsidence and geotechnical instability. The property owners alleged that the District knew or ought to have known that the area was subject to subsidence and other geotechnical problems. They advanced multiple claims against the District and its approving officer, including negligent subdivision approval, negligent development permit approval, negligent issuance of building and occupancy permits and failure to warn the owners of geotechnical issues.

The concerned properties were encumbered by s. 219 covenants that released the District and its officers from any and all liability arising “from or in connection with the construction of any structures on the Lands or use of the Lands” … “including without limitation any subsidence, settling of any structure including any utility or road infrastructure, loss of slope stability, or any similar matter.” (emphasis added)

Prior to development in 2006, the District had required the developer to execute these s. 219 covenants as a condition of subdivision approval, after consultants identified seepage and slope stability as “issues of potential concern” in their initial assessment. The District also required the developer to provide the District with a comprehensive geotechnical report from a qualified professional confirming that the subject lands were “not subject to land slip, sinkholes or erosion”, which was to be appended to the s. 219 covenants and registered in the Land Title Office as a notice to all prospective buyers.

Lower Court Decision

The owners had successfully argued in the lower court that the s. 219 covenants did not operate to release the District and its officials against their claims. The chambers judge held that s. 219 of the Land Title Act (“LTA”) expressly refers to the inclusion in a covenant of an indemnity, but not a release. As a result, he found that the covenants registered on title as a condition of subdivision approval exceeded the scope of s. 219 authority.

The chambers judge went on to narrowly interpret these particular s. 219 covenants, and found that – on the facts of this case – the  release language did not apply to the claims advanced by the owners.

The issues before the Court of Appeal were:

1. Whether s. 219 of the LTA authorizes the inclusion of a release in a covenant; and
2. If so, whether the language in these particular s. 219 covenants released the District from the claims advanced by the owners.

Appellate Decision

The Court of Appeal found in favour of the District and its officials on both points. Section 219 of the LTA does authorize the inclusion of release language in covenants described in that section. Further, the specific release language here was broad enough to encompass the owners’ claims against the District.

On the first point, the Court held that section 219 of the LTA contemplates that local governments and their officials may allocate the risk associated with, among other things, subdivision approval, building approval and land or building uses, and provide for public notice through the use of a covenant that runs with the title and binds future owners. The broad wording of the section “contemplates management and allocation of risk, notice to the public, and the protection of the public purse”.

On the second point, the Court reiterated that releases are contracts, and as such, subject to the ordinary approach to contractual interpretation. The factual matrix (surrounding circumstances) – and not just the specific words of the release – must be taken into consideration when determining whether it applies to a given claim. Here, the chambers judge fell into error by narrowly interpreting the scope of the release contained in the s. 219 convents.

The Court found that the clear purpose of the release language was to mitigate risk to, and absolve the District from, any and all liability arising “from or in connection with the construction of any structures on the Lands or use of the Lands.” (emphasis added).

The claims of the respondents all arose from or were in connection with the construction of structures in the development or the use of development lands generally, including claims based on negligent subdivision approval, negligent development permit approval, negligent issuance of building and occupancy permits and failure to warn respondents of geotechnical issues. These were the precise types of damage, loss, claims and demands contemplated by the s. 219 covenants.

As a result, the Court held that the s. 219 covenants apply to release the District against the claims advanced by the owners.

Takeaway

Section 219 covenants are an invaluable tool for local governments to manage and allocate risk associated with subdivisions, construction and land or building uses that may be subject to future subsidence issues or other geotechnical concerns.

This case demonstrates the benefit of carefully drafted covenants containing release provisions broad enough to encompass all future claims arising from or in connection with all construction on and use of specified lands.

While the specific wording of the covenant remains crucial, the surrounding circumstances will also be taken into consideration, including the intent of the local government to mitigate risk of and absolve itself from a broad range of liability. To this end, appropriate policies and procedures governing the retention of project correspondence and related records can be of great assistance in the event a local government is required to demonstrate the “factual matrix” or intention of the parties when agreeing to a covenant that is later the subject of litigation.

Questions? Contact Denise McCabe, Casey Helgason, Kendra Murray or our Local Government Law Team.