Posts
- C. S. Lewis
- Assumptions
- Let us assume the unlikely circumstance that 18% of the voters of the city of Vancouver elected a city council whose goals included marking crosswalks in all visible and invisible colours, engraving fish on manhole covers and reducing the municipal budget to 141 characters plus Instragram so it could fit on Twitter.
With hearts, as pure as the driven slush, they claimed that they were returning the world to happier times, when humans moved under their own power. They were supported by and in turn generously rewarded cyclists, herbivores and locavores by ceding to them all public roads and parks. They enacted a five year plan for kale production. They provided angel financing for the local manufacture of bikes made entirely of wicker.
Finally, they turned the best roads over to cyclists and forced the morally bankrupt majority to drive their automobiles, even electric ones, on other, already crowded streets.
All of this was supported by truckloads of surveys and studies that had not yet been carried out, tending to show that bike ridership exceeded cars, pork production was down, the consumption of dandelions exceeded imported lettuce and businesses without automobile access enjoyed a 400% increase in sales. They also traveled to China to persuade that country to stop buying China's favorite car – the Buick 8.This was done because Buicks in China emitted more carbon dioxide than the entire Province of British Columbia.
The public push back took various forms. Flash mobs occupied city Hall. The Council announced in response that they intended to demolish it immediately because it wasn’t safe. The auto drivers blockaded the streets. The City merely applauded this action and planted grass on the Granville Bridge where sheep could safely graze.
The question is this: Could a citizen apply to the courts to set aside any of these decisions?
Let us use the West Point Grey Road partial closure as an example of how one would proceed.
Closed mind
In Save Richmond Farmland Society v Richmond (Township) the Supreme court of Canada set a high bar for setting aside a bylaw. If a councilor had an absolutely closed mind – a mind that had snapped shut like a steel trap – a mind that could not learn because it already knew then a bylaw might be set aside. But, and here was the catch, if a city councilor had sprung a leak in his certitude and had a slightly open mind before going into a public hearing the bylaw would not be set aside.
That case was recently distinguished in Garowey v. Whitemouth (Rural Municipality) 83 MPLR (4th) 29 (2011) (Manitoba Queen's Bench). It examined the "closed minded issue" and quoted another related Supreme Court decision:
“The legislature could not have intended to have a hearing before a body who had already made a decision which is irreversible. The party alleging disqualifying bias must establish that there is a pre-judgment of the matter, in fact, to the extent that any representations at variance with the view, which had been adopted, would be futile. *** [there must be] some indication that the position taken is incapable of change."
Duty of Fairness
A second ground for attack in the Garowey case was the breach of duty of fairness. These factors include:
1. The nature of the decision made and the process followed in making it. The closer the administrative processes to judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required.
2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. Greater procedural protections are required when there is no appeal procedure or the decision determines the issue and further requests cannot be submitted.
3. The importance of the decision to the individual or individuals affected. The more important or the greater the impact the decision has, the more stringent are the procedural protections.
4. The Court must determine whether the procedure that was used in reaching any given decision was in fact, there, impartial and open.
In the result, the court granted a declaration that the respondent acted in excess of jurisdiction by pre-deciding that it would pass the bylaw, quashed the bylaw and ordered a new hearing.
Methods of Attacking the Bylaw or Resolution
There are two available procedures for attacking a decision.
1. Vancouver Charter sections 525 two 530. This must be brought within 30 days of the hearing.
2. Judicial Review Procedure Act for which there is no specific limitation period although a court can where delay has been unreasonable refuse to grant relief.
Parties
A society or community group could bring the petition and it would have a chance of avoiding an award of court costs against it if it loses. The Petitioner should have an interest in the subject matter above and beyond that of a mere taxpayer. The petitioner should be specially affected in some way. A neighborhood group whether or not incorporated could have community interest standing as long as it was a group with a particular interest in this issue, whether citywide or local.
If an individual brings the action, he should have standing as one who is specially affected by the decision but could face court costs if he lost.
Evidence
With respect to bike lanes and bicycle matters generally, the city has been relentlessly pursuing its agenda. In connection with West Point Grey Road they say that this was a campaign promise, that the road was unsafe, and I believe that on reviewing news stories and matters on YouTube, a case can be made that the decision was made in advance. Certainly if construction on other lanes was started as soon a resolution was passed this might be evidence that orders had been given to staff in advance of any public hearings.
The posting below is found on the Cedar Party web site and indicates some of the issues.
If the the city improperly discriminated between classes in the sense that it is favoring a small group of bike riders and some property owners on Point Grey Road, over the vast majority of people who use the road for cars this could be a factor. If they are also discriminating against those property owners who will be receiving the traffic this might be a consideration. The Vancouver Charter and the common law does not bar all discrimination and Local Governments are given a great deal of power to discriminate on zoning and road related matters, but the courts are struggling to determine the limits.
Although any one factor might be insufficient, the clear presentation of all of the evidence might result in a decision to set aside the bylaw, resolution or decision.
The
Supreme Court web site has an excellent self-help page on judicial review:
http://www.supremecourtbc.ca/sites/default/files/web/Judicial-Review.pdf
http://www.supremecourtbc.ca/sites/default/files/web/Starting-a-Proceeding-by-Petition.pdf
http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx
(select judicial review package)
http://www.supremecourtbc.ca/sites/default/files/web/Judicial-Review.pdf
http://www.supremecourtbc.ca/sites/default/files/web/Starting-a-Proceeding-by-Petition.pdf
http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx
(select judicial review package)
Form 66
No.
…………………………..
……………………… Registry
In the Supreme Court of British Columbia
IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE ACT
R.S.B.C. 1996, C. 241
Between
Petitioner(s)
and
Respondent(s)
PETITION TO THE COURT
ON NOTICE TO:
……………………………………………..
[name and address of each
person to be served]
……………………………………………...
………………………………………………
………………………………………………
This
proceeding is brought for the relief set out in Part 1 below, by
[Check whichever one of the following boxes is
correct and complete any required information.]
ð
the person(s) named as petitioner(s) in the style of
proceedings above
ð
………………………………… (the petitioner(s))
[name]
If you intend
to respond to this petition, you or your lawyer must
(a) file a response to petition in Form 67
in the above-named registry of ` this court within the time for
response to petition described below, and
(b) serve on the petitioner(s)
(i) 2 copies of the filed response to
petition, and
(ii) 2 copies of each filed affidavit on
which you intend to rely at the hearing.
Orders, including orders granting the relief
claimed, may be made against you, without any further notice to you, if you
fail to file the response to petition within the time for response.
Time for response to petition
A response to
petition must be filed and served on the petitioner(s)
a) if you were
served with the petition anywhere in Canada, within 21 days after that service,
b) if you were
served with the petition anywhere in the United States of America, within 35
days after that service,
c) if you were
served with the petition anywhere else, within 49 days after that service, or,
d) if the time
for response has been set by order of the court, within that time.
(1)
|
The address of the registry
is:
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(2)
|
The ADDRESS FOR SERVICE of
the petitioner(s) is:
[set out the street address of the address for service
for each petitioner: One or both of a
fax number and an e-mail address may be given as additional addresses for
service.]
Fax number address for
service (if any) of the petitioner(s):
E-mail address for service
(if any) of the petitioner(s):
|
(3)
|
The name and office address
of the petitioner’s(s’) lawyer is:
|
Claim of the
Petitioner(s)
Part 1: ORDER(S)
SOUGHT
[Using numbered paragraphs, set out the order(s) that will be sought at
the hearing of the petition and indicate against which
respondent(s) the order(s) is(are)
sought.]
1.
2....
Part 2: FACTUAL
BASIS
[Using numbered paragraphs, set out the material facts on which this
petition is based.]
1.
2.
Part 3: LEGAL
BASIS
[Using
numbered paragraphs, specify any rule or other enactment relied on and provide
a brief summary of any other legal basis on which the petitioner(s) intend(s) to
rely in support of the orders sought.]
1.
2…..
Part 4: MATERIAL
TO BE RELIED ON
[Using numbered paragraphs, list the affidavits
served with the petition. Each affidavit included in the list must
be identified as follows: “Affidavit #......[sequential number, if any, recorded in the
top right hand corner of the affidavit]……..
of ……….[name]………., made
……[dd/mmm/yyyy]…….”.]
1.
2….
The
petitioner(s) estimate(s) that the hearing of the petition will take ……………........................
.
[time estimate]
Date: ……………………………….…. ……………………………………….
Signature
of
o petitioner
o lawyer for petitioner(s)
…………………………………………….
[type
or print name]
To be completed by the
court only:
Order made
|
||||||||||||
No. …………………..
………………………… Registry
In the Supreme Court of British
Columbia
Between
Petitioner
and
Respondent
NOTICE OF APPLICATION
Name(s) of applicant(s): .........................................
To: ……………………………………………..……….
[name(s) of party(ies) or
person(s) affected]
TAKE NOTICE that an application will be made by the
applicant(s) to the presiding judge or master at the courthouse at ……….
……………………………………………………….…………
[address of registry in which the proceeding
is being conducted]
on ……………………………………. at ……….…….. for the order(s) set out
in Part 1 below.
[dd/mmm/yyyy] [time of day]
Part 1: ORDER(S)
SOUGHT
[Using
numbered paragraphs, set out the order(s) that will be sought at the application
and indicate against which party(ies) the order(s) is(are) sought.]
1.
The execution of the order of the Dispute Resolution
Officer dated ........................ be stayed pending the hearing of the
petition for Judicial Review of the said order.
2.
Part 2: FACTUAL
BASIS
[Using
numbered paragraphs, set out a brief summary of the facts supporting the application.]
1.
2.
[If
any party sues or is sued in a representative capacity, identify the party and describe the
representative capacity.]
Part 3: LEGAL
BASIS
[Using
numbered paragraphs, specify any rule or other enactment relied on and provide a brief
summary of any other legal arguments on which the applicant(s) intend(s) to rely
insupport of the orders sought If
appropriate, include citation of ` applicable
cases.]
1.
2.
Part 4: MATERIAL
TO BE RELIED ON
[Using numbered paragraphs, list the affidavits
served with the notice of application and any other affidavits
and other documents already in the court file on
which the applicant(s) will rely. Each affidavit included in the list must be identified as follows: “Affidavit #.......[sequential number, if any, recorded in the top right hand corner of the
affidavit]…….. of ……….[name]………., made …[dd/mmm/yyyy]…”.]
1.
2.
The
applicant(s) estimate(s) that the application will take ……………………..
[time estimate]
[Check the correct box.]
o This matter
is within the jurisdiction of a master.
o This matter
is not within the jurisdiction of a master.
TO THE
PERSONS RECEIVING THIS NOTICE OF APPLICATION:
If you wish to respond to this notice of application, you must, within 5
business days after service of this notice of application or, if this
application is brought under Rule 9-7, within 8 business days after service of
this notice of application,
a) file an
application response in Form 33,
b) file the
original of every affidavit, and of every other document, that
i.
you intend to refer to at the hearing of this
application, and
ii.
has not already been filed in the proceeding, and
c) serve on the
applicant 2 copies of the following, and on every other party of record one
copy of the following:
i.
a copy of the filed application response;
ii.
a copy of each of the filed affidavits and other
documents that you intend to refer to at the hearing of this application and
that has not already been served on that person;
iii.
if this application is brought under Rule 9-7, any
notice that you are required to give under Rule 9-7(9).
Date: …………………………. …………………………………………..
Signature
of
o applicant
o lawyer for applicant(s)
……………………………………………
[type
or print name]
To be completed by the court
only:
Order made
|
||||||||||||
APPENDIX
[The following information is provided for data
collection purposes only and is of no legal effect.]
THIS APPLICATION INVOLVES THE FOLLOWING:
[Check the box(es) below for the application type(s)
included in this application.]
o discovery: comply
with demand for documents
o discovery: production
of additional documents
o other matters concerning document discovery
o extend oral discovery
o other matter concerning oral discovery
o amend pleadings
o add/change parties
o summary judgment
o summary trial
o service
o mediation
o adjournments
o proceedings at trial
o case plan orders:
amend
o case plan orders:
other
o experts
"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral "bicycultists"."
ReplyDeleteThe fact that the option of using city property appropriated by the Point Grey Road residents to accommodate a bike lane was discounted by council is a further indication that not only was the decision already made to favour the few to the detriment of the many in closing Point Grey Road, but that the die was cast as to how to proceed with that even before consultations took place with stakeholders.
Jim Howden
3784 W 16th Ave.
Sorry got caught up in wordplay and mangled my point.
DeleteShould have read:
The fact that the option of using city property appropriated by the Point Grey Road residents to accommodate a bike lane was discounted by council is a further indication that not only was the decision already made to favour the few to the detriment of the many in putting a bike lane on Point Grey Road, but that the die was cast as to how to proceed with that matter even before consultations took place with stakeholders.
Jim Howden
Great blog post! Hopefully I'll get a chance to take on one of these cases. Do you know if Garowey v. Rural Municipality of Whitemouth has been applied in BC yet?
ReplyDeleteGarowey has not yet been applied in BC. Also remember that you could not rely on that case alone because you would be applying to set aside a decision made in the exercise of an street and traffic power set out in Part 12 of the Vancouver Charter. The attack would be partially on the grounds that The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless the decision will be set aside. The same goes if they failed to take in consideration relevant matters. (see Kollen case BCCA)
Delete