Thursday, 27 February 2014


A Vancouver City Councilor’s pronouncements on the law of zoning and public hearings gave me an idea for a game. We would produce fridge magnets with legal phrases like quasi judicial, torts, volente non fit injuria, public policy, policy making, public hearing, fettering discretion. The players would toss them at a fridge and whoever produces the most incomprehensible doctrines of law would win.

Councillor Reimer, interviewed  in the Vancouver Courier,  lectures that “when Council sits as a Council it’s a policy making body but in a public hearing its not.”
In fact, when Council sits in any properly constituted formal meeting whether at a zoning hearing or at a meeting to declare National Potato Chip Week, it is sitting as a Council. Period. Council performs many different functions. It acts in various capacities, often simultaneously. These have been characterized by the courts as legislative, administrative or quasi judicial. Decisions made in any capacity are referred to as “statutory powers of decision.”

Reimer and her VISION colleagues already know how they are going to vote. Have they ever split on any vote? Her lecture on the law is for the sole purpose of persuading those whose neighborhoods she will destroy,  that she and her colleagues have no choice. They are driven inexorably to wreck the neighborhood by a higher law.

Reimer would have you believe that if the City has a policy respecting rezoning, a Court would take a dim view of any councillor who votes  for the public and against the policy. How can that be? Because, she says, that Council must act quasi judicially.

But quasi judicially means fairly and impartially. So, according to her, to act fairly and impartially she can only vote one way.

The law may be an ass, but it is not that big an ass.

Suppose Council passed a resolution stating that it shall be a policy to always increase the density of the city in every zoning application for properties near arterials or transit. Assume the policy was adapted without any public hearing. Assume it was not enacted as a bylaw.

At the zoning hearing there are the usual, enraged protesters. Some speakers support the rezoning for various reasons. Others oppose it. “In Oakridge,” they shout, “a Maginot Line of towers will block our light, air and views”

After the hearing the vote is called.

Reimer wouldn’t want the voters to misinterpret her support for the developers as being – er, um support for the developers. What’s a gal to do?

Blame the law. The Reimer doctrine as set out in the Courier is as follows:

“We’re making a decision on land use that is based on existing policy. In fact it would likely to be tested poorly in the courts if we tried to make policy as we go in a public hearing,” she said. “The challenge is if you’re a member of the public, you come in and see the same 11 people that you see making policy and you assume we can do everything in a public hearing that we can do in a council meeting, which is not the case.”

She has the law backwards and upside down.

The Council must not unlawfully fetter its discretion.

In the case of

Hospital Employees’ Union, Local 180 v. Peace Arch District Hospital (1989), 35 B.C.L.R. (2d) 64 at 30-31 (C.A.) it was held:

“A body entrusted with a discretion must not disable itself from exercising its discretion in individual cases by adopting a fixed rule of policy. In modern administrative law this issue arises most often when an administrative agency of its own volition seeks to structure its discretion by formulating and following policy statements, guidelines, and the like…

An authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance. It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each one must be considered on its own merits and decided as the public interest requires at the time

The law as set out by the Court of Appeal in Save Richmond Farmland Society v. Richmond (Township) (B.C.C.A.)(Affd. SCC)

"There must be a degree of open-mindedness; there must be a capacity to be influenced by persuasion. But provided that the alderman is not acting improperly in the sense of having been procured to vote in a certain way, (of which there is no suggestion whatsoever in this case,) and providing that he retains the capacity to be influenced by a yet unheard and perhaps unexpected argument, he or she will not be disqualified from participation in this particular process of zoning bylaw consideration by attitudinal views of the kind that are inherent in the political nature of our form of municipal government, and which may well have been exposed by the cut and thrust of that political process."

After a zoning hearing council makes a legislative decision to rezone. It must also act quasi judicially and conduct the hearing fairly and impartially. The council has the broadest discretion in making its decision. It must not completely fetter its discretion by following a pre-existing policy that has not been adapted as law.

Reimer has every right to vote any way she wants following the public hearing. That's politics.  

The voters have every right to throw her out of office at the next election. So's that.


  1. Thank you Mr. Baker !
    The laws is an ass but not as big an ass as Reimer has with her comments.

  2. Of course – the ‘provocation’ for this line of thinking, i.e. do Councillors have a grip/understanding on the powers they truly have – is a profound and worrisome question -- that you have rightly discovered and articulated.

    If Councillor’s can not exercise their own judgement – as their duty & the law compels them to do -- the complex and carefully crafted series of public and private meetings (designed to receive information and opinion) – can be seen to be impotent at best; and a farce, at worse.

    By legal and administrative design – a complex information/opinion gathering “machine” is in place to allow decision-makers to receive the best/informed information; and, then make the best/informed decisions.

    What a tragedy – if someone elected to “make decisions” – decides to “gag themselves”.

    I have heard of monks and nuns taking a “vow of silence” – however, I am sure if the Prelate or Mother Superior determined their duty was otherwise – the “vow of silence” would not occur.

    Who is going to free our Councillors from their self-imposed decision-making chains/fetters – and allow them to do the job -- they were elected to do.

    Who is going to convince them – they have a voice, and their duty is to use their voice.