COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Wu v. Vancouver (City), |
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2019 BCCA 23 |
Date: 20190121
Docket: CA44963
Between:
Zheqiang Wu and Binxia Cao
Respondents
(Plaintiffs)
And
City of Vancouver
Appellant
(Defendant)
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Before: |
The Honourable Mr. Justice Harris The Honourable Madam Justice Dickson The Honourable Madam Justice Griffin |
On appeal from: An order of the Supreme Court of British
Columbia,
dated November 14, 2017 (Wu v. Vancouver (City), 2017 BCSC 2072,
Vancouver Registry S144129).
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Counsel for the Appellant: |
D.R. Bennett, Q.C. and E.C. Lapper |
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Counsel for the Respondent: |
R.D. Holmes, Q.C. and M. Good |
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Place and Date of Hearing: |
Vancouver, British Columbia September 18, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia January 21, 2019 |
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Written Reasons by: |
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The Honourable Mr. Justice Harris |
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Concurred in by: |
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The Honourable Madam Justice Dickson The Honourable Madam Justice Griffin |
Summary:
Appeal of a judgment recognizing a private law duty of care imposed on municipal officials to make a decision on a development permit application in a reasonable time and concluding the duty breached. Appeal allowed: the proper remedy for delay in making a decision is mandamus. The public law duty cannot be converted to a private law duty. The regulatory scheme does not create the necessary proximity to justify recognizing a private law duty of care. Policy reasons, in any event, justify negativing a prima facie duty of care. The order cannot be supported on alternative grounds.
Reasons for Judgment of the Honourable Mr. Justice Harris:
[1] The City of Vancouver appeals an order declaring the City liable to compensate the respondent homeowners for failing to make a decision on a development permit application within a reasonable time. The consequence of not making a decision was that the respondents arguably lost a right to compensation that would otherwise have been available to them under certain bylaws existing at the time.
[2] The judge found that the City, through its officials and Council, acted intentionally and in bad faith in delaying a decision on the development permit application until a change in applicable bylaws removed a right to compensation that previously existed. The judge concluded, nonetheless, that the respondents failed to make out the tort of abuse of public office and they were not entitled to a remedy in the nature of mandamus compelling the issuance of the development permit. Rather, the judge recognized in the law of negligence a novel private law duty of care to make a decision within a reasonable time in accordance with the applicable bylaws. She found the City, in bad faith, breached that duty.
[3] For the reasons that follow I would allow the City’s appeal.
[4] The respondents bought a home in the First Shaughnessy District (“FSD”) of Vancouver in December 2011. The house was built before the First World War. When they bought the house, they knew of land use restrictions that could affect their right to demolish and replace the house. They understood, however, that under the existing rules if the City refused the respondents’ right to demolish the house and the parties could not agree on terms for its retention, the City was obliged to compensate the respondents for the property’s resulting loss of value.
[5] Given the view I take of this case, it is not necessary to outline the background and the regulatory regime in detail. The essential bylaws are found as an appendix to these reasons. As well, further detail may be found in the reasons for judgment from the Court below, indexed as 2017 BCSC 2072. The history of the City’s attempts to protect the heritage character of FSD and the regulatory changes to do so implemented over many years are explained in Cummings v. City of Vancouver, 2016 BCSC 1918.
[6] The City has long evinced a desire to protect the historic character of FSD and preserve homes of heritage value within it. In 1982, the City rezoned FSD. It also adopted the First Shaughnessy Official Development Plan (“FSODP”) with the goal to “preserve and enhance First Shaughnessy’s unique character”. The goals contained in the FSODP represented the basic planning philosophy for FSD, and the City’s Director of Planning had to take these goals into account when considering new development in FSD. Those goals were more fully articulated in First Shaughnessy Design Guidelines (“Guidelines”). The Guidelines informed the interpretation and implementation of the FSODP and provided a framework for reviewing all new development in FSD.
[7] One issue in this case is whether the respondents’ proposed development was consistent with the Guidelines even if the development permit application was, as the judge found, otherwise complete.
[8] The process governing development in FSD became more complicated in 1994 when Council created the First Shaughnessy Advisory Design Panel (“Design Panel”). The Design Panel was an advisory body that assisted the City in implementing planning policy by reviewing all development applications for FSD. The mandate of the Design Panel was to “preserve and protect the heritage and special character of the [FSD]”.
[9] In 1994, Council created the First Shaughnessy Heritage Inventory (“Heritage Inventory”), listing all 353 pre‑1940 homes. Homes were listed on the Heritage Inventory for planning purposes. Being listed did not confer heritage status or protection. It identified properties as eligible for development incentives to encourage retention. In order to be protected as heritage property, a property had to be added to the Heritage Register by order of Council pursuant to s. 582 of the Vancouver Charter, S.B.C. 1953, c. 55. The respondents’ property was listed on the Heritage Inventory but not on the Heritage Register.
[10] By the early part of this decade, pressure to demolish pre‑1940 homes and replace them with new homes increased significantly. In response to the increase in proposals to demolish pre‑1940 homes, an administrative bulletin was published by the City Planning Department in May 2012 (“2012 Bulletin”). The Bulletin was amended in November 2012 and again in February 2013. The stated objective was reconfirmed: preserving and protecting FSD character through the retention of pre‑1940 houses of merit. The 2012 Bulletin required all pre‑1940 homes to be evaluated for merit prior to approving demolition permits.
[11] The Bulletin set out a “process of careful analysis” to establish the heritage merit of pre‑1940 homes. This could include the provision of a Statement of Significance (“SOS”). Ultimately, the Director of Planning would decide if a property had heritage merit. If so, that determination would have to be addressed in any subsequent application for a development permit and the City would encourage the property’s retention. If the Director of Planning favoured retention, but the homeowner still wished to demolish the home, the Director could recommend to Council that the house be protected by a designation as “protected heritage property”. In that event, the City would be required to compensate the homeowner for any loss of value under the existing bylaws.
[12] This describes some of the basic regulatory principles in place at the time the respondents engaged in pre‑application discussions with the City about their plans to demolish the house. In May 2012, Mr. Leyland, the respondents’ architect, met with the Design Panel and presented their proposed plans. At this meeting, the City presented a heritage evaluation report prepared by Hugh McLean, a heritage planning analyst with the City. Mr. McLean’s report recommended that the property be designated with heritage status. Shortly after the May meeting, the City requested that the respondents prepare retention studies. On October 3, 2012, the City wrote to Mr. Leyland advising the Director of Planning had reviewed the merit evaluation and retention studies, a confirmation of merit of the house had been established, and the Director of Planning would therefore seek retention of the house. The judge found that the October 3, 2012 letter represented a decision by the City that the house had heritage merit and needed to be retained: at para. 96.
[13] On January 30, 2013, the respondents submitted a development permit application to the City for the demolition of the house and construction of a new single-family dwelling. The judge found that the application was complete and that the respondents had submitted all of the materials the City required to make a decision with respect to the application: at para. 22. This conclusion is in issue on appeal.
[14] The judge concluded that, at this point, the City had three options for dealing with the application: (1) permit the demolition of the house and new development; (2) reach an agreement with the plaintiffs to retain the house with incentives; or (3) designate the property as “protected heritage property” and compensate the respondents for any resulting loss of value under s. 595 of the Vancouver Charter: at para. 20.
[15] With respect, I think the judge was wrong to limit the City’s options in this way. In fact, the City could have rejected the application if the proposed development did not comply with the Guidelines. Indeed, the City was required by s. 1.6 of the FSODP to comply with Zoning and Development Bylaw, and the related goals, development principles, regulations, and all applicable policies and guidelines adopted by Council, including those in the FSODP and the Guidelines.
[16] Alternatively, the Council could have, as it did later, resort to its power under the bylaws to impose a temporary 120‑day heritage protection order on the property or pass a more general order protecting all properties in the neighbourhood.
[17] Between January and April 2013, City staff discussed internally the possibility of recommending to Council that the property be designated as protected heritage property and compensating the respondents. Designation under s. 593 of the Vancouver Charter would have been an unprecedented step. The record discloses that the City had never unilaterally designated a property under s. 593 of the Vancouver Charter, requiring it to pay compensation under s. 595. Rather any designation had been by agreement, including as to the amount of compensation. The risk of designation, absent agreement on compensation, leading to an uncertain amount of compensation determined by arbitration had not been taken by the City.
[18] The record also discloses that early in 2013 a policy concern was developing in the City that the existing regulatory regime was proving ineffective in protecting heritage properties and preventing developments that were inconsistent with its conservation policies. As a result, on May 15, 2013, Council passed a motion requesting staff review the City’s Heritage Conservation Program and identify potential improvements to it. This motion led to Council approving a Heritage Action Plan to update and strengthen the City’s heritage conservation programme on December 4, 2013. These facts were in the public domain.
[19] In the meantime, on February 15, 2013, the City advised Mr. Leyland that the respondents needed to submit an SOS prepared by an independent heritage consultant in order “to finalize the merit question” for the house. The judge was critical of the City for requesting the SOS, given her finding that the Director had already decided the home had heritage merit and for other reasons.
[20] On July 19, 2013, the respondents submitted an SOS to the City. On September 16, 2013, the Vancouver Heritage Commission recommended that the property be added to the Heritage Register. It also requested revisions to the SOS. As I understand it the City took the view that the proposed development was inconsistent with the FSODP.
[21] Following that decision, Mr. Leyland met with the City to reiterate that the respondents wanted to demolish the house. On November 7, 2013, the Director of Planning wrote to Mr. Leyland indicating that staff would recommend Council add the house to the Heritage Register if the respondents wanted to proceed with the development permit application. However, on November 25, 2013, the Director of Planning recommended to Council that the property be granted temporary heritage protection under s. 589 of the Vancouver Charter, to “allow staff time to assess retention options for this property which is a candidate for addition to the Vancouver Heritage Register”. This was done. Accordingly, the property was granted temporary heritage protection.
[22] During the 120‑day temporary protection period, the City continued to encourage the respondents to consider incentives to retain the house. The respondents reiterated they were not interested in retention. Following the expiry of the temporary protection period, the respondents did not hear anything further from the City regarding their application.
[23] As mentioned earlier, on December 4, 2013, Council approved the Heritage Action Plan to update and strengthen the City’s heritage conservation programme.
[24] One action item in the Heritage Action Plan was a review of the FSODP to consider the establishment of a heritage conservation area for FSD as a “unique and historic neighbourhood”. The Heritage Action Plan recommended a review of the FSODP to consider the establishment of a heritage conservation area in FSD and a period of temporary protection for FSD. The stated rationale for was:
In the past few years there have been increasing concerns in First Shaughnessy including the number of demolition proposals for houses, the use of double height interior spaces which result in large-scaled or bulky houses, and the loss of some of the area’s landscape features. A comprehensive review of the [FSODP] has not been undertaken since it was approved in 1982, even though periodic reviews and updates of the adopted document were intended.
[25] I note in passing that the respondents’ application raised a number of concerns reflected in the quoted rationale, including issues to do with bulk and scale, roof lines, and landscaping.
[26] In May 2014, the plaintiffs started this action seeking an order in the nature of mandamus to compel issuance of the development permit or, in the alternative, alleging abuse of public office, expropriation, and negligence.
[27] On June 24, 2014, less than one month after the respondents’ claim was filed, Council enacted Bylaw 10991, establishing a heritage control period for FSD. The purpose of this bylaw was to ensure that no pre‑1940 buildings were demolished unless authorized by a heritage alteration permit while work to review the FSODP under the Heritage Action Plan was underway. Pursuant to ss. 590(2) and (5) of the Vancouver Charter, such a heritage control period is effective for no longer than one year and can only be implemented in a single area once in a 10‑year period.
[28] A report dated May 29, 2015, from the City’s General Manager of Planning and Development Services, recommended that the FSODP be repealed, that Council enact a city‑wide Heritage Conservation Area Official Development Plan and bylaws designating First Shaughnessy as the first heritage conservation area in the City. In part, these recommendations reflected the concern about a significant increase in enquiries and applications to demolish pre‑1940 homes. The report also identified that one advantage of adopting the HCA Bylaws was that no compensation would be payable to homeowners who were refused permission to demolish existing houses.
[29] On September 29, 2015, after public hearings, Council repealed the existing FSD zoning bylaw and the FSODP and enacted Bylaw Nos. 11352 and 11349 (the “HCA Bylaws”), establishing a new district schedule for First Shaughnessy and the Heritage Conservation Area Official Development Plan (“HCAODP”) respectively. The HCA Bylaws and HCAODP established FSD as a heritage conservation area and prevented the demolition of any house in the area unless the Director of Planning decided the house no longer of sufficient heritage character or value. Designation of FSD as a heritage conservation area also had the effect of removing the requirement that the City pay compensation to homeowners under s. 595 of the Vancouver Charter.
[30] The property is now subject to the HCA Bylaws and HCAODP. Once a development plan is adopted as “official” by Council, s. 563 of the Vancouver Charter mandates that the City cannot “authorize, permit, or undertake any development contrary to or at variance with the official development plan”. As a result, as the judge recognized, the HCA Bylaws and HCAODP “frustrated” the respondents’ plans to develop the property: at para. 94.
[31] The judge held that the City had embarked upon a “circuitous course of delay” with respect to the application: at para. 96. She concluded that the City’s conduct in repeatedly asking the plaintiffs to consider retention of the House; requiring an SOS; requesting the respondents prepare retention studies; granting a temporary protection period for the property; and failing to seek heritage protection; all constituted “delay tactics” by the City: at para. 96.
[32] The judge was satisfied that the City had acted in bad faith in dealing with the application: at para. 97. She inferred that the only rational explanation of the City’s actions was that it delayed making a decision until the HCA Bylaws were passed, thereby avoiding the requirement to pay compensation: at paras. 98, 223.
[33] Nonetheless, the chambers judge concluded the respondents had not established the tort of abuse of public office or misfeasance (paras. 114‑15) or the requirements for a finding of expropriation: at paras. 119‑21. Moreover, she dismissed the application for mandamus on the basis that the City had an option either to grant the application or designate the property and pay compensation: at paras. 236‑38.
[34] On the primary issue on appeal, the judge recognized the City owed the respondents a novel duty of care to “make a decision on the plaintiffs’ development permit application, in accordance with the applicable laws, and to do so within a reasonable time”: at paras. 173, 191, 211. She found the meaning of “within a reasonable time” could be established by reference to the City’s average processing time for a development application (10‑14 weeks) and the time limits set out in section 4.2 of the City’s Zoning and Development Bylaw which provide for the expiry of an application for a development permit after one year: at para. 216.
[35] Relying on her findings of bad faith, the judge concluded that the City had breached its standard of care (at paras. 223‑24) resulting in direct and foreseeable economic losses.
[36] Given her findings that the City never intended to grant the respondents a development permit because of the heritage merit of the property, and given that the respondents were not interested in retention, the judge concluded the only option for the City was to designate the property as heritage and provide compensation. The City’s failure to do so within a reasonable time wrongfully deprived the plaintiffs of the compensation they were owed under the existing bylaw: at para. 232.
[37] The quantum of damages was set to be determined at a subsequent hearing.
[38] The judge concluded that under the bylaws the City owed the applicants a duty of care to make a final decision on a development permit application within a reasonable time, in accordance with the applicable statutory framework: at paras. 191, 211.
[39] The duty, as characterized by the judge, is equivalent to and no different from the public law duty owed to applicants as a result of the empowering enactments. Public officials are under statutory duties to act in accordance with obligations imposed on them by statute, which also serve as the source of their authority to act. Public law duties exist in any circumstance where a public official is authorized and obliged to process an application seeking a grant of permission to act in certain ways.
[40] Where an official fails to act in a manner required by statute and accordingly breaches his or her statutory obligations, remedies exist in administrative law. For current purposes, it is sufficient to note that the duty described by the judge is simply a duty to make a decision, not to make a particular decision where the official has a choice or a discretion about what decision to make within the regulatory scheme. Mandamus lies to compel an official to make a decision. It is a remedy for delay. Its availability does not depend on an official having a duty to make a particular decision. This proposition is illustrated by Dagenais v. Trenton (1893), 24 O.R. 343 (Ont. C.A.), in a municipal law context, but it is a principle of wider application. As Justice LeBel explained in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44:
[146] The notion that justice delayed is justice denied reaches back to the mists of time. In Magna Carta in 1215, King John promised: “To none will we sell, to none will we deny, or delay, right or justice” (emphasis added [in original]). …
…
[149] Today, there is no doubt that mandamus may be used to control procedural delays. In the middle of the last century, a British Columbia Court of Appeal judgment recognized the principles behind mandamus, stating that “[t]he high prerogative writ of mandamus was brought into being to supply defects in administering justice” (The King ex rel. Lee v. Workmen’s Compensation Board, [1942] 2 D.L.R. 665, at p. 678). It went on to note that the granting of mandamus was “to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice” (at p. 678, cited with approval in Harelkin v. University of Regina, [1979] 2 S.C.R. 561). Members of our Court have on occasion alluded to the use of mandamus specifically to control delay. (See notably: R. v. Bradley, [1941] S.C.R. 270, at p. 277, per Duff C.J.; Rourke v. The Queen, [1978] 1 S.C.R. 1021, at p. 1027, per Laskin C.J.; and Rahey, supra, at pp. 624‑25, per Wilson J., and p. 631, per La Forest J.) …
[Emphasis added.]
[41] The public law obligation to make a decision in a reasonable time is reflected in a number of cases: see, for example, Austin v. Canada (Minister of Consumer and Corporate Affairs) (1986), 10 F.T.R. 86 (F.C.T.D.) (obligation to exercise discretion within a reasonable time: at para. 6); Ramsay v. Toronto (City) Commissioners of Police (1988), 66 O.R. (2d) 99 (Div. Ct.) (mandamus requires a statutory duty to be done, not the way it is done, decision to be made without ordering what decision). In Dass v. Canada (Minister of Employment and Immigration) (1996), 193 N.R. 309 (F.C.A.), the point is put clearly:
[17] … This is not to say that the officials may make unlawful decisions without review, or delay indefinitely making a decision. A decision once communicated may be open to attack on judicial review. And if there is undue delay in processing an application for landing it is always open to the applicant to apply for mandamus, not to require a specific decision but rather to require that a decision be taken.
[Emphasis added.]
[42] These considerations are pertinent here. On the judge’s reading of the City’s statutory obligations, the City had a discretion to decide whether to approve the development permit application or put the house on the Heritage Register and pay compensation. The respondents did not have a right to a particular decision, but they did have a right to a decision. The duty as defined by the judge is nothing more than the public duty articulated as or converted into a private law duty of care.
[43] This brings us to the first problem with the judge’s analysis. It is a settled principle that Canadian law does not recognize a nominate tort of breach of statutory duty. As The Queen (Can.) v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, and Holland v. Saskatchewan, 2008 SCC 42, make clear, there is no duty of care imposed on officials to act in accordance with authorizing statutes or regulations. Standing alone, a breach of a statutory duty is not a breach of a private law duty of care. While a breach of statutory duty is subsumed within the law of negligence, a breach of a statutory duty can be evidence of negligence. As a general rule, a breach of a public law duty is not sufficient to establish the breach of a private law duty. The first is not readily converted to the second. The existence of a private law duty of care must be established by the application of common law principles.
[44] This proposition is illustrated by the decision of the Supreme Court of Canada in Holland. In that case, the Supreme Court of Canada upheld a decision of the Saskatchewan Court of Appeal striking a claim in negligence based on a failure of public officials to act in accordance with the authorizing acts and regulations. The statement of claim had explicitly alleged a duty of care to ensure that the legislative framework at issue was “administered in accordance with the law”. McLachlin C.J., writing for the Court, outlined the alleged acts of negligence as follows:
[7] … The statement of claim, read generously as required in an application to strike, focused mainly on two alleged acts of negligence: requiring the game farmers to enter into the broad indemnification agreement, and down-grading the status of those who refused to do so. In both cases, the alleged fault may be described as failing to act in accordance with the authorizing acts and regulations.
[Emphasis added.]
[45] The Supreme Court of Canada relied on Saskatchewan Wheat Pool for the principle that the law does not recognize an action for negligent breach of statutory duty and that mere breach of statute is not negligence. The Court endorsed the view that the law has not recognized an action against a government authority for negligent breach of statutory duty by acting outside or contrary to the law. The issue thus became whether a new instance of negligence should be permitted, by reference to the principled Anns/Cooper analysis (Anns v. Merton London Borough Council, [1978] A.C. 728; Cooper v. Hobart, 2001 SCC 79). The Chief Justice reasoned:
[9] In my view, the Court of Appeal was correct in these conclusions. The law to date has not recognized an action for negligent breach of statutory duty. It is well established that mere breach of a statutory duty does not constitute negligence: The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 (S.C.C.). The proper remedy for breach of statutory duty by a public authority, traditionally viewed, is judicial review for invalidity. The appellant pursued this remedy before Gerein C.J.Q.B. and obtained a declaration that the government's action of reducing the herd certification status was unlawful and invalid. No parallel action lies in tort.
[10] The next question was whether a hitherto unrecognized relationship of potential liability in negligence should be recognized under the Anns test. Assuming, without deciding, that the legislative and regulatory matrix established proximity between the Class and the government at the first step, policy considerations would negate recognition of liability, as the Court of Appeal detailed. These include the chilling effect and specter of indeterminate liability. As Richards J.A. stated at para. 43 of the Court of Appeal’s decision:
... the respondent’s theory of liability would fundamentally shift the way in which the public and private spheres historically have carried the consequences or burden of governmental action which is shown to be ultra vires. I see no policy reason which would warrant such a dramatic revision in the shape of the law and, as indicated above, see much which cuts tellingly against shaping the law in the manner sought by the respondent.
[46] The principles set out in this case were quoted and relied on by this Court in Ari v. Insurance Corporation of British Columbia, 2015 BCCA 468, albeit in a somewhat different context.
[47] With respect, the analysis in Holland appears to me to be directly applicable to this appeal. The duty described by the judge is no more than an action for negligent breach of statutory duty by a public authority. The proper remedy is judicial review. A failure to act as required by statutory authority is properly remedied by an order in the nature of mandamus compelling the authority to decide. The duty recognized by the judge amounts to a fundamental shift in the way in which public and private spheres have historically addressed improper governmental action.
[48] Notwithstanding the problem just identified, it remains necessary to consider whether the duty the judge recognized could survive the Anns/Cooper test for identifying novel private law duties of care. Indeed, the judge engaged in an Anns/Cooper analysis in recognizing a private law duty of care. I will address the judge’s reasons in order to explain why, in my opinion, the judge’s analysis does not avoid the result in Holland. As I shall attempt to demonstrate, the judge’s analysis does not engage sufficiently with the law concerning the circumstances in which proximity can be established in connection with the existence of a scheme of regulation in the public interest.
[49] The law concerning the recognition of a private law duty of care has evolved significantly in recent decades. This evolution has occurred within the Anns/Cooper framework. I will return later to the issue of whether the law already recognizes the duty recognized in this case. I agree with the judge that if such a duty does exist, it must be rooted in the principled Anns/Cooper framework since the duty is novel.
[50] The most significant evolution in applying the Anns/Cooper framework is the increasing emphasis placed on the analysis of proximity, at the expense of reasonable foreseeability, as the critical element in recognizing a prima facie duty of care. In Cooper, the Supreme Court of Canada made clear that reasonable foreseeability standing alone is insufficient to ground a prima facie duty of care. In addition to reasonable foreseeability, there must be proximity: Cooper at para. 42. In Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, the Supreme Court of Canada has recently traced the refinements in the Anns/Cooper framework placing greater emphasis on a robust analysis of proximity as the touchstone for recognizing a novel prima facie duty of care.
[51] The law has not defined “proximity” with precision. Indeed, as was said in Cooper, the word may amount to little more than a label identifying the type of relationship in which duties of care arise: Cooper at para. 31. Nonetheless, one can recognize the kind of considerations pertinent to analysing proximity. Such relationships are said to be “close and direct”: Cooper at para. 32. They may involve physical closeness, direct relationships or interactions, the assumption of responsibility; or turn on expectations, representations, reliance, or the nature of property or other interests involved: see, Cooper at paras. 32‑34. In short, proximity recognizes those circumstances in which one individual comes under an obligation to have regard for the interests of another so as to be required to take care not to act in a manner that would cause injury to those interests. Proximity involves an analysis both of the nature of the relationship between the parties and the kind of harms carelessness might cause: see The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency, 2013 BCCA 34. It involves having regard to all relevant factors arising from the relationship between the parties: Deloitte at para. 29.
[52] The evolution in the Anns/Cooper framework is also reflected in cases dealing with the recognition of private law duties owed by public authorities. The historical emphasis on the distinction between operational and policy decisions has been overshadowed by a more rigorous proximity analysis. One of the difficult issues has been the role that a statutory scheme of regulation plays in analysing whether sufficient proximity exists between a public authority and a claimant to justify recognizing a prima facie private law duty of care. In relation to the proximity analysis in relation to public authorities, the issue is complicated first by the underlying principle that no nominate tort of breach of statutory duty is recognized in Canada, and second by the fact that public authorities generally have powers and duties to act in the public interest rather than in a manner designed to protect the private interests of individuals affected by a scheme of regulation.
[53] Some general principles apply to the recognition of prima facie private law duties of care owed by public regulators to private parties.
[54] First, it is possible that a private law duty of care may arise explicitly or by necessary implication from a statutory scheme: see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 43. The existence of a statutory scheme of regulation does not foreclose the possibility of finding proximity.
[55] Second, while a scheme of statutory regulation may be relevant to whether proximity exists, generally the existence of such a scheme is insufficient to support a finding of proximity. The Supreme Court of Canada appears to have moved beyond its statement in Edwards v. Law Society of Upper Canada, 2001 SCC 80 at para. 9, that factors giving rise to proximity must be grounded in the governing statute if one exists. More recently, in Reference re Broome v. Prince Edward Island, 2010 SCC 11, Justice Cromwell observed that statutory duties “do not generally, in and of themselves, give rise to private law duties of care”: at para. 13. A similar view is found in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24. In that case, the Chief Justice, endorsing Broome, reasoned that “[w]here the defendant is a public body, inferring a private duty of care from statutory duties may be difficult, and must respect the particular constitutional role of those institutions”: Alberta at para. 74. Much the same view was articulated in Imperial Tobacco. In that case, the Court noted “[i]t may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care”: at para. 44.
[56] Third, a principal reason why public law duties are, standing alone, generally insufficient to create proximity is because statutory schemes generally exist to promote the public good. To the extent that one conceives the issue as a matter of legislative intent, as the Supreme Court of Canada noted in Imperial Tobacco, it is difficult to infer that a legislature intended to create a private law duty where a scheme is aimed at a public good: at para. 44. Viewed in this way, the question is whether the legislature intended as a positive matter to create a private law duty notwithstanding that the scheme is aimed at promoting the public good. The basic proposition remains, however, that a public law duty aimed at the public good does not generally provide a sufficient basis to create proximity with individuals affected by the scheme. This is so, even if a potential claimant is a person who benefits from the proper implementation of the scheme. This proposition is illustrated by numerous cases including Cooper, Gill v. Canada (Minister of Transport), 2015 BCCA 344, Imperial Tobacco, and Elder Advocates, to name just a few.
[57] Fourth, where a conflict arises between a potential private law duty and the public authority’s duty to the public, the private law duty would unlikely be recognized. This is so whether the issue is viewed as one of proximity or as a policy reason to negate a duty. This principle has been engaged in a number of cases, see for example, Imperial Tobacco, Cooper, Gill, Los Angeles Salad.
[58] What I take from these broad principles is that, as a general proposition subject only to arguably rare exceptions, statutory duties owed by public authorities are insufficient to ground private law duties arising out of interactions that are inherent in the exercise of the public law duty. Indeed, it is difficult to convert public law duties into private law duties where those public law duties exist to promote a public good. Generally, discharging public law duties does not give rise to a private law duty of care to particular individuals.
[59] Typically, if a private law duty of care is recognized, it will arise from specific interactions either between the public authority and the claimant sufficient to create the necessary proximity or in the context of a statutory scheme: Imperial Tobacco at paras. 45‑46. An example of such an approach is found in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, where the Court emphasized the specific features of the relationship between the plaintiffs and the regulator in the circumstances of the case. There, a combination of factors, including the regulatory regime and the interactions and knowledge of regulators, were necessary to ground a finding of proximity. Vlanich v. Typhair, 2016 ONCA 517, para. 31, helpfully explains how proximity may arise between a public authority and a member of the public where a public authority assumes responsibility for ensuring compliance with standards.
[60] I agree with the comments of Mr. Justice Bryson of the Nova Scotia Court of Appeal in Canada (Attorney General) v. Walsh Estate, 2016 NSCA 60:
[64] Notwithstanding judicial comment to the contrary, it is hard to see how a public statute, empowering public actors to accomplish public goals, could alone give rise to a private duty between those public actors and a particular member of the public. Unless the statute conferred a right of action or limited such a right or any remedy, one would expect the statute to be a neutral factor in the analysis. Statutes generally do not create a private law duty of care: Reference re Broome v. Prince Edward Island, 2010 SCC 11 at ¶ 13.
[65] To impose a private duty of care on public actors, one needs to overcome the generic relationship and establish a private one, although it need not be personal. There may be interaction between public defendants and plaintiffs, such as to give rise to a relationship between them, (Hill, ¶ 29).
[61] It is necessary, therefore, to begin by characterizing the purpose of the regulatory scheme at issue in this case. The scheme is intended to protect the heritage character of First Shaughnessy. It does so by seeking to preserve properties possessing heritage value and the overall historic character and ambience of the neighbourhood. To achieve that aim, it regulates proposed developments by property owners. The scheme imposes statutory duties on the regulators and provides statutory rights to property owners in making a development permit application. I see nothing in the scheme to suggest the legislative intent is to create a private law duty of care owed to property owners.
[62] In this respect, the bylaws at issue are a specific type of bylaws aimed at regulating development. Development permits often authorize the demolition and replacement of certain buildings. Generally speaking, bylaws regulating development do so to control permissible development in accordance with a variety of criteria. Those criteria may encompass a wide range of matters, such as density, use, or compliance with design guidelines, just to name a few.
[63] In this case, the bylaws in issue were concerned with protecting the heritage character of a certain part of Vancouver. The regulatory framework exists to promote a conception of the public interest or public good by regulating the type and character of new construction in FSD. The primary objective of the scheme is to promote the public good. In the circumstances, I do not think it can be said that the regulatory framework, standing alone, either explicitly or by implication, creates a relationship of proximity capable of giving rise to a prima facie duty of care.
[64] I am reinforced in this view, by examining those factors the judge relied on at paras. 159‑73, in concluding that such a relationship of proximity existed. In my respectful opinion, most of the factors were generic and inherent in the regulatory framework and, accordingly, are not indicative of a relationship of proximity.
[65] While the relationship between the parties can be described as “direct and transactional”, this does not materially advance the proximity analysis because such a relationship is both inherent in and an inevitable and necessary part of the regulatory framework, in which individuals apply for permission to undertake a certain activity. The same applies to virtually any licensing or permitting process. I do not think that the inevitable reality of a specific individual making an application to a regulator, and thereby entering into a direct transactional relationship with the regulator, advances the argument that proximity exists in the sense that the regulator has come under an obligation to have particular regard for the interests of the applicant beyond the regulator’s obligation to fulfil his or her statutory duties.
[66] Moreover, as I see the matter, the expectations and reliance on “representations”, referred to by the judge at para. 44, is simply another way of describing an applicant’s expectation that a public official will fulfil his or her statutory public law obligations in the manner described in the Administrative Bulletin referred to at para. 10 above. The “representations” are not an indication that the public official is assuming a private law duty of care to have regard for the applicant’s private interests, whatever they may be. Further, the expectation that a public official will act as authorized by law does not, by itself, ground any reasonable expectation that the applicant can rely on the official to discharge his or her obligations with a particular regard for the applicant’s private interests.
[67] I agree that a failure by a public official to process a development application according to the law could in some circumstances cause reasonably foreseeable harm to the economic interests of an applicant where there is a clear right to a permit. In this case, it may have been reasonably foreseeable that a failure to process the development permit application in accordance with the law might interfere with private property rights of the applicant. Again, much the same could be said about any scheme of regulation which involves granting or withholding permission to engage in certain kinds of activity. But none of this takes the relationship between the parties outside what is inherent in the scheme of regulation. Moreover, reasonable foreseeability is now treated as a secondary factor. Primary emphasis is given to proximity. Reasonable foreseeability does not create proximity: Deloitte paras. 32-6.
[68] While property owners are entitled to use their property as they wish, they may do so only within a regulatory framework. Property development is highly regulated in the public interest. The manner in which economic interests or property rights may be affected by a failure to administer the law is variable and unpredictable. Given that property owners are not entitled to do what they like with their property outside of the regulatory scheme, it can be conceptually difficult to draw the link between the denial of a permit and causation of damages. The fact that property rights are involved in this regulatory framework does not elevate the nature of interest engaged to such a level that a relationship of proximity is created.
[69] In summary, I do not think that the factors inherent in administering a regulatory scheme of this nature are sufficient to create a relationship of proximity.
[70] Importantly, this does not foreclose the possibility that a relationship of proximity could be created in the context of a scheme, including this one, and specific facts and circumstances arising from interactions between the parties. There could be a case in which a public official negligently misrepresented certain facts that were relied on by an applicant. This is not such a case. Alternatively, a public official could act in such a way so as to assume a responsibility to have regard for the private interests of an applicant who in turn relies upon that assumption of responsibility. Again, this is not such a case. The representations the judge referred to were, at best, general statements about process. I see nothing in the evidence that would warrant treating them as actionable misrepresentations, and the judge did not do so.
[71] In the result, I do not think the scheme of regulation, in and of itself, gives rise to private law duties of care that exist alongside public law duties. I see no basis to convert statutory duties into private law duties. The inevitable interactions involved in development permit applications are not sufficient to create a relationship of proximity. There is nothing in the individual and specific interactions in this case capable of creating a relationship of proximity between these respondents and the City.
[72] If I am wrong in my analysis of proximity, policy reasons exist to negative a prima facie duty of care. Here, the Supreme Court of Canada reasons in Holland apply.
[73] I observe in the first place that the duty recognized is open-ended and of broad application. The duty is described as a duty to decide within a reasonable time according to the law. Such a duty would apply indiscriminately to virtually any public authority granting or withholding permission through permits or licenses to individuals wishing to make use of private property or engage in certain economic activity. The potential burden imposed on governments to discharge its responsibilities is extraordinary: see e.g., Elder Advocates where at para. 74 the Court identifies the fear of virtually unlimited exposure of government to private claims, taxing public resources, and chilling government intervention as policy reasons to negative a private duty. While one must be careful not to treat the “chilling effect” on government as a blanket means of avoiding recognizing private law duties of care imposed on public authorities, the danger in this case stems from the breadth of the duty the judge recognized.
[74] The most recent articulation of the principle of indeterminate liability is found in Deloitte. The Court pointed out that a concern for indeterminate liability should rarely persist after applying a proper proximity and foreseeability analysis: Deloitte at para. 42. It may be, therefore, that the issue I address here has been canvassed in my proximity analysis offered above: in particular, the concern that the judge’s analysis captured relationships generic to and inherent in virtually any permit granting authority.
[75] Having said that, the concern arising out of indeterminate liability remains a live issue. It was one of the factors the Supreme Court of Canada relied on in both Holland (at para. 10) and Elder Advocates (at para. 74) referred to above. This is not a question of the magnitude of potential liability. Rather, it is a question of potential liability in indeterminate amounts owed to an indeterminate class: see Deloitte at para. 43.
[76] With respect, I do not share the opinion of the judge that the issue of indeterminate liability is resolved by acknowledging that regulators know who they are dealing with and the nature of the permit applied for. To the contrary, given the breadth of the duty and the extraordinary range of circumstances to which it would apply, knowing who had applied for particular permits provides little information about the potential impact of delay on their interests. In my respectful opinion, it is impossible to ascertain the scope of liability the duty contemplates.
[77] Moreover, the standard of care to be applied is indeterminate: see e.g., Ari at para. 51, and incapable of having any predictable or objective content. It is not apparent what concrete meaning can be given to “a reasonable time” given the scarcity of resources public authorities can deploy in processing applications and given the competing and shifting priorities public authorities face while discharging their responsibilities. What is reasonable will vary contextually depending on the policy choices a public authority makes.
[78] In my opinion, the risk of indeterminate liability is a sufficient public policy reason not to recognize the duty.
[79] Finally, the law already provides for alternative remedies. As I have said, the proposed private law duty replicates the existing public law duty. A failure to make a decision within a reasonable time is capable of being remedied by mandamus. This remedy was appropriate in this case. The respondents were not entitled to a particular decision, for example, the grant of a development permit, but they were entitled to a decision. In addition to mandamus, under the bylaws, a failure to make a decision on a development permit is a deemed refusal of the permit. In those circumstances, the respondents again had a remedy. They had a right to appeal to the board of variance, which was empowered to address their complaint. The availability of these alternative remedies provides another policy reason not to recognize the duty.
[80] One last issue must be addressed briefly. The judge approached the issue as one of recognizing a novel duty of care. She was right to do so. The respondents argued before us that the duty recognized by the judge was analogous to previously recognized duties, but I see no merit in that argument. We have been reminded recently by the Supreme Court of Canada to pay attention to the particular circumstances and relationships involved in previous cases and not to apply an overly general approach: see Deloitte; see also Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19. As the Court stated in Deloitte:
[28] It follows that, where a party seeks to base a finding of proximity upon a previously established or analogous category, a court should be attentive to the particular factors which justified recognizing that prior category in order to determine whether the relationship at issue is, in fact, truly the same as or analogous to that which was previously recognized. And, by corollary, courts should avoid identifying established categories in an overly broad manner because, again, residual policy considerations are not considered where proximity is found on the basis of an established category (Cooper, at para. 39). Analytically, this makes sense. For a court to have previously recognized a proximate relationship, second-stage residual policy considerations must already have been taken into account. When, therefore, a court relies on an established category of proximity, it follows “that there are no overriding policy considerations that would [negate] the duty of care” (ibid.). A consequence of this approach, however, is that a finding of proximity based upon a previously established or analogous category must be grounded not merely upon the identity of the parties, but upon examination of the particular relationship at issue in each case. Otherwise, courts risk recognizing prima facie duties of care without any examination of pertinent second-stage residual policy considerations.
[81] Previous cases recognizing a private law duty of care have tended to be rooted in the assumption of responsibility to take care to protect certain interests, whether against personal injury (see e.g., Just v. British Columbia, [1989] 2 S.C.R. 1228) or safety (see e.g., Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2) or have been derived from undertakings or representations reasonably relied on by an individual: as explained in Vlanich. Alternatively, they have involved direct and specific interactions going beyond those inherent in the application of the regulatory scheme. They have not sprung simply from a failure to make a decision in a reasonable time under the governing law.
[82] In the result, I conclude that the City did not owe the respondents a private law duty of care as the judge recognized.
[83] The respondents contend that even if the judge erred in recognizing a private law duty of care, the order can be supported on alternative grounds. They contend that they were entitled to an order of mandamus or that they made out the tort of abuse of public office.
[84] The judge found the development permit was complete. Nevertheless, she declined to make an order in the nature of mandamus because the City had a discretion whether or not to issue a development permit.
[85] I agree with the judge that mandamus could not be ordered. The respondents applied for an order directing the City to issue the development permit. Given the discretion that was available to the City, no such order could be made. The order that was available, at least in principle, was an order directing the City to make a decision. The respondents did not make that application. They could have done so, especially given the public knowledge during much of the material period that the City was actively contemplating changing its approach to heritage protection.
[86] Accordingly, quite apart from the fact that the order under appeal deals with issues of compensation, it cannot be supported by way of mandamus.
[87] The City raised another ground in support of the argument that the Court could not order mandamus. It contends that the judge made a reversible error in finding that the development permit application was complete and was capable of being issued, subject to the respondents satisfying certain conditions.
[88] It is not necessary to address this issue definitively. If it were so, I would be inclined to agree with the City that there were material deficiencies in the development permit application. The judge dismissed the City’s argument out of hand. Respectfully, I think she was too quick to do so. Critically, the development permit application did not, among other deficiencies, comply with the design guidelines forming part of the official community plan. Those deficiencies related, amongst other matters, to the roofline, as well as the bulk, size and scale of the proposed house. The development permit application could not be approved if it were inconsistent with the design guidelines. This was not a minor or trivial deficiency; it would have to be rectified before the City could issue a permit. Similarly, the respondent’s failure to provide an arborist’s report is not a minor deficiency, since landscaping of any proposed development is integral to preserving the heritage character of First Shaughnessy.
[89] Finally, I turn to the issue of abuse of or misfeasance in public office. The judge found that the City acted in bad faith in delaying the processing of the respondent’s development permit application. After describing the elements of the tort, she gave the following reason for denying a remedy:
[114] I find that this tort is not made out. The plaintiffs’ claim is that several members of the planning department acted improperly, not one in particular. In fact the claim is advanced against the City of Vancouver.
[115] The court in J.P. held that the individual in question must be personally named as a defendant, making it clear that the claim of misfeasance in public office is a claim against one public official: J.P. at para. 350.
[90] With respect, I think the judge fell into error in concluding that a claim of misfeasance in public office can only be made out against one public official. Certainly, it is intrinsic to the tort that it be committed by a person exercising public “functions” or “offices” and the City is not an office holder: see Moses v. Lower Nicola Indian Band, 2015 BCCA 61 at para. 44. To conclude the claim failed because it was premised on several members of the planning department acting improperly, rather than one in particular, is an error. I am aware of no principle in law that would prevent two or more individuals acting in concert from committing the tort. Indeed, embedded in the judge’s findings of fact must be a finding that several members of the planning department were acting in concert.
[91] This, however, is not the end of the matter. As this Court held in J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308:
[319] The mother advanced her claim of misfeasance in public office against the Director and her delegates generally. This is an intentional tort and, therefore, the claim must be pleaded against the individual holder of the public office: Moses v. Lower Nicola Indian Band, 2015 BCCA 61 at para. 44.
…
[350] The tort of misfeasance in public office is an extremely serious claim. Finding someone liable for such egregious conduct requires, at the very least, that the individual be a named party in the Notice of Civil Claim so that they may defend the claim against them. Procedural fairness in our justice system mandates that an alleged tortfeasor have notice of, and the opportunity to defend, such a claim, with all of the attendant procedural safeguards to which a party to a proceeding is entitled.
[92] The point in Moses was expressed in this way:
[44] The even greater difficulty that I see in Mr. Moses’ pleading is that it seems to equate the five councillors who purported to pass the invalid resolutions, with the Band itself. Only the Band is named as a defendant in this proceeding. It is difficult to conceive how it could be said to have committed the tort of misfeasance in public office: the only public “offices” or “functions” in this case are those of councillors and chief, which are obviously held by individuals. The five councillors opposed to the plaintiff’s holding office were defendants in the Federal Court action, but are not named in this proceeding.
[Emphasis in original.]
[93] The effect of these cases is that in an action alleging misfeasance of public office or abuse of office the plaintiff(s) must name as defendant(s) the public official(s) who are alleged to have abused their office. This was not done here. The finding that the City acted in bad faith is a finding that those officials who handled the development permit application together with the Council engaged in egregious conduct. If such a claim were to be advanced, those officials (and councillors) should have been named. Findings of fact against those individuals ought not to have been made, as they implicitly were, because they were not parties. The failure to name them is fatal to the claim.
[94] In the result, I do not think any alternative grounds exist to uphold the order. Accordingly, it is unnecessary to consider the effect of an immunity clause under s. 569 of the Vancouver Charter, which may have at least limited the scope of recoverable damages arising from the bylaw change, as well as the potential continuing relevance of Monarch Holdings Ltd v. Oak Bay (District) (1977), 4 B.C.L.R. 67 (C.A.).
[95] I would allow the appeal, set aside the order below, and dismiss the action.
“The Honourable Mr. Justice Harris”
I agree:
“The Honourable Madam Justice Dickson”
I agree:
“The Honourable Madam Justice Griffin”
APPENDIX
Vancouver Charter, S.B.C. 1953, c. 55
Good rule and government
189. The Council may provide for the good rule and government of the city.
Council powers respecting official development plan
562. (1) The Council may, by by-law,
(a) adopt as the official development plan, or as a part of the official development plan, any development plan prepared under section 561, or
(b) revise or amend the official development plan or any part of the official development plan.
(2) If a by-law under subsection (1) adopts or amends a regional context statement under section 561 (4) (b), before adoption of the by-law the Council must refer the by-law for comment to the board of the Greater Vancouver Regional District.
(3) Before adopting a by-law under subsection (1), if the official development plan designates a heritage conservation area and includes a schedule referred to in section 596A (3) (b), the Council must hold a public hearing.
(4) Section 566 (3) to (5.1) [amendment or repeal of zoning by-law] applies in respect of the adoption of a by-law under subsection (1) and a public hearing referred to in subsection (3).
Undertakings, official development plan
563. (1) The adoption by Council of a development plan shall not commit the Council to undertake any of the developments shown on the plan.
(2) The Council shall not authorize, permit, or undertake any development contrary to or at variance with the official development plan.
(3) It shall be unlawful for any person to commence or undertake any development contrary to or at variance with the official development plan.
Zoning by-law
565. (1) The Council may make by-laws
(a) dividing the city or any portion thereof into districts or zones of such number, shape, or size as Council may deem fit;
(b) regulating, within any designated district or zone, the use or occupancy of land and land covered by water for or except for such purposes as may be set out in the by-law;
(c) regulating, within any designated district or zone, the construction, use, or occupancy of buildings for or except for such purposes as may be set out in the by-law;
(d) regulating the height, bulk, location, size, floor area, spacing, and external design of buildings to be erected within the city or within designated districts or zones;
(e) establishing, in any district or zone, building lines and the area of yards, courts and open spaces to be maintained and the maximum percentage of the area of land that can be covered by impermeable material;
(e.1) regulating, in any district or zone, the maximum density of population or the maximum floor-space ratio permissible;
(f) designating districts or zones in which there shall be no uniform regulations and in which any person wishing to carry out development must submit such plans and specifications as may be required by the Director of Planning and obtain the approval of Council to the form of development, or in which any person wishing to carry out development must comply with regulations and guidelines set out in a development plan or official development plan;
(f.1) requiring, where it creates a zone pursuant to this section, that as a condition of approving a form of development a person provide public amenities, facilities or utilities or provide land for such purposes or require that the person retain and enhance natural physical features of a parcel being developed;
(g) delegating to the Director of Planning or such other persons as are authorized by Council the authority to certify the authorized use or occupancy of any land or building;
(h) providing for certificates of use or occupancy and providing that the use or occupancy of any land or building other than in accordance with the certificate of use or occupancy applicable to such land or building shall constitute a violation of the by-law and shall render the owner of the land or building liable to the penalties provided in the by-law;
(i) authorizing the collection of a fee for a certificate of use or occupancy, which fee may vary according to the type of use or occupancy or the value of the land or building used or occupied;
(j) describing the zones or districts by the use of maps or plans, and the information shown on such maps or plans shall form part of the by-law to the same extent as if included therein.
(2) A by-law regulating the use or occupancy of land, land covered by water or buildings may
(a) permit uses or occupancies existing at a date specified in the bylaw as outright uses, and
(b) make uses or occupancies existing at a date specified in the by-law conditional approval uses as of that date.
(3) The regulations under subsection (1) may be different for different protected heritage property, as specified in the by-law.
Withholding of permit pending adoption of zoning by-law
570. (1) Before the adoption of a zoning by-law, an official development plan or a bylaw under section 593 designating a heritage property, or of an amendment to a zoning by-law or an alteration, addition or extension to an official development plan, the Council may cause to be withheld the issuance of any development or building permit for a period of 30 days from the date of application for such permit.
(2) Where any permit is so withheld, the application therefor shall be considered by the Council within the said period of thirty days, and, if in the opinion of the Council, the development proposed in the application would be at variance or in conflict with a development plan in the course of preparation, or with an alteration, addition, or extension to an official development plan in course of preparation, or with a zoning by-law in course of preparation, or with an amendment to a zoning by-law in course of preparation, the Council may withhold the permit for a further sixty days from the expiration of the thirty-day period hereinbefore referred to, or the Council may impose such conditions on the granting of the development permit as may appear to the Council to be in the public interest.
(3) In the event that the Council does not within the said period of sixty days adopt any such plan, alteration, addition, extension, or by-law, the owners of the land in respect of which a development permit was withheld or conditions were imposed pursuant to this section shall be entitled to compensation for damages arising from the withholding of such development permit, or the imposition of such conditions. Such compensation shall be determined by arbitration pursuant to the Arbitration Act.
(4) Despite subsection (1), an owner of property for which a permit has been withheld before the adoption of a by-law designating a heritage property may agree that a permit may be withheld for a period longer than the 30 days referred to in subsection (1) and, in that case, subsection (1) continues to apply during that longer period and subsection (2) is deemed to read as if the longer period applies.
Heritage register
582. (1) The Council may, by resolution, establish a heritage register that identifies real property that is considered by the Council to be heritage property.
(2) The heritage register
(a) must indicate the reasons why property included in a heritage register is considered to have heritage value or heritage character, and
(b) may distinguish between heritage properties of differing degrees and kinds of heritage value or heritage character.
(3) Within 30 days after including a property in a heritage register or deleting property from a heritage register, the Council must give notice of this
(a) to the owner of the heritage property in accordance with section 599, and
(b) to the minister responsible for the Heritage Conservation Act in accordance with section 602.
(4) The protection of heritage property is not affected by an error or omission in a heritage register.
Orders for temporary protection
589. (1) The Council may order that real property is subject to temporary protection in accordance with section 591 if the Council considers that
(a) the property is or may be heritage property, or
(b) protection of the property may be necessary or desirable for the conservation of other property that is heritage property.
(2) An order under subsection (1)
(a) must specify the time period during which the temporary protection applies, which may not be longer than 120 days unless the owner of the property agrees to a longer time period, and
(b) must not be made more than once within a 2 year period.
(3) An order under subsection (1) may do one or more of the following:
(a) identify landscape features that are subject to the order;
(b) specify types of alterations to property that are allowed without obtaining a heritage alteration permit;
(c) establish policies regarding the issuance of a heritage alteration permit in relation to the property.
Heritage control periods for temporary protection
590. (1) For the purposes of heritage conservation planning for an area identified in the by-law, the Council may, by by-law, declare a heritage control period with respect to the area.
(2) A by-law under subsection (1) must specify the length of the heritage control period, which may not be longer than one year from the date of adoption of the by-law.
(3) A by-law under subsection (1) may do one or more of the following:
(a) identify types of landscape features that are included in the protection under this section;
(b) specify types of alterations to property that are allowed without obtaining a heritage alteration permit;
(c) establish policies regarding the issuance of a heritage alteration permit in relation to property within the area covered by the by-law.
(4) During a heritage control period under subsection (1), property within the area covered by the by-law is subject to temporary protection in accordance with section 591.
(5) A heritage control period under this section may be declared once only during any 10 year period for an area or portion of an area.
Temporary protection
591. (1) While property is subject to temporary protection in accordance with this Division, except as authorized by a heritage alteration permit or as referred to in subsection (2), a person must not do any of the following to the property:
(a) alter the exterior of a building;
(b) make a structural change to a building;
(c) move a building;
(d) alter, move or take an action that would damage a fixture or feature identified in the authorizing resolution, order or by-law for the temporary protection;
(e) alter, excavate or build on the property.
(2) The prohibition under subsection (1) does not apply to alterations that are allowed by the authorizing resolution, by-law or order for the temporary protection to be made without a heritage alteration permit.
Heritage designation protection
593. (1) Except as authorized by a heritage alteration permit or allowed under subsection (3) (f), a person must not do any of the following:
(a) alter the exterior of a building protected under this section;
(b) make a structural change to a building protected under this section;
(c) move a building protected under this section;
(d) alter, remove or take an action that would damage an interior feature or fixture that is identified under subsection (3) (c);
(e) alter, remove or take an action that would damage a landscape feature that is identified under subsection (3) (d);
(f) alter, excavate or build on land protected under this section.
(2) The Council may, by by-law, on terms and conditions as it considers appropriate, designate real property in whole or in part as protected under this section if the Council considers that
(a) the property has heritage value or heritage character, or
(b) designation of the property is necessary or desirable for the conservation of a protected heritage property.
(3) A heritage designation by-law may do one or more of the following:
(a) apply to a single property or to part of a property;
(b) apply to more than one property, including properties owned by different persons;
(c) apply to affixed interior building features or fixtures identified in the by-law;
(d) apply to landscape features identified in the by-law;
(e) establish policies or procedures regarding the provision of financial or other support for the conservation of the heritage property;
(f) specify types of alterations to the property that are allowed without a heritage alteration permit;
(g) establish policies regarding the issuance of heritage alteration permits in relation to property covered by the by-law.
Heritage designation procedure
594. (1) Before a heritage designation by-law is adopted, the Council must hold a public hearing on the proposed by-law for the purpose of allowing affected parties and the general public to make representations respecting matters contained in the proposed by-law.
(2) Section 566 (3), (5) and (5.1) applies with respect to the public hearing and enactment of the heritage designation by-law.
(3) At least 10 days before the public hearing, a notice in the prescribed form must be given in accordance with section 599 to
(a) all persons who, according to the records of the land title office, have a registered interest in real property that would be designated, and
(b) all occupiers of real property that would be designated.
(4) [Repealed 1999-38-67.]
(5) The Council must have prepared a report regarding the property to be designated that includes information respecting the following matters:
(a) the heritage value or heritage character of the property;
(b) the compatibility of conservation with the community planning objectives in the area in which the property is located;
(c) the compatibility of conservation with lawful uses of the property and adjoining lands;
(d) the condition and economic viability of the property;
(e) the possible need for financial or other support to enable appropriate conservation.
(6) At least 10 days before the public hearing, the report under subsection (5) must be available for public inspection at the City Hall during its regular office hours.
(7) No heritage designation by-law is invalid for inadvertent and minor noncompliance with this section or Division (6), or for an error or omission in the report under subsection (5).
(8) Within 30 days after the Council adopts or defeats a heritage designation bylaw or determines not to proceed with the by-law, the Council must give notice of this in the prescribed form to the owners entitled to notice under subsection (3)(a).
(9) Within 30 days after adopting a heritage designation by-law, the Council must give notice of this
(a) to the land title office in accordance with section 601, and
(b) to the minister responsible for the Heritage Conservation Act in accordance with section 602.
Compensation for heritage designation
595. (1) If a designation by a heritage designation by-law causes, or will cause at the time of designation, a reduction in the market value of the designated property, the Council must compensate an owner of the designated property who makes an application under subsection (2), in an amount or in a form the Council and the owner agree on or, failing an agreement, in an amount or in a form determined by binding arbitration under subsection (4).
(2) The owner of a designated property may apply to the Council for compensation for the reduction in the market value of the designated property.
(3) An application under subsection (2)
(a) must be made, in order for the owner to be entitled to compensation under this section, no later than one year after the heritage designation by-law is adopted, and
(b) may be made before the heritage designation by-law is adopted.
(4) If the Council and an owner are unable to agree
(a) that the owner is entitled to compensation, or
(b) on the amount or form of compensation,
then either the Council or the owner may require the matter to be determined by binding arbitration under the Arbitration Act.
(5) An arbitration under this section must be by a single arbitrator unless the Council and the owner agree to the appointment of an arbitration panel.
(6) The arbitrator or arbitration panel, in determining whether the owner is entitled to compensation and the amount or form of compensation, must consider
(a) financial and other support available for conservation of the designated property, and
(b) any other benefits that are available because of the designation of the property.
(7) Compensation must not be paid, and an arbitration must not continue, if the Council defeats, or determines not to proceed with, the designation by-law.
(8) Nothing in this section authorizes the Council to give any financial or other benefit to an owner except that which is commensurate with reduction in the market value of the designated property as caused by that designation.
(9) This section does not apply with respect to property that, immediately before the adoption of the heritage designation by-law, is already designated under a heritage designation by-law or under section 9 of the Heritage Conservation Act.