2008 BCCA 407 Gook County Estates Ltd. v. Quesnel (City of)

Before:	The Honourable Mr. Justice Low
	The Honourable Mr. Justice Frankel
	The Honourable Mr. Justice Groberman

Oral Reasons for Judgment

R. Burke	Counsel for the Appellant
J. Yardley	Counsel for the Respondents, City of Quesnel, D. Hooker, P. Couldwell, D. Pujol, P. MacLaughlan & S. Wallace
A. Winstanley	Counsel for the Respondents, 553615 B.C. Ltd., Grand Forks Trail Properties Ltd. & ICI Properties Ltd.
Place and Date:	Vancouver, British Columbia
10 October 2008

[1] GROBERMAN, J.A.: The appellant appeals from part of the order of N. Smith J. pronounced September 13, 2006. The reasons for judgment are indexed as 2006 BCSC 1382. The appellant appeals only from the refusal of the learned trial judge to grant a declaration that two development permits were void. The trial judge’s reasons on this issue are found primarily at paragraphs 189 through 207 of the judgment.

[2] The development permits were issued on April 15, 2003, in one case, and September 24, 2003, in the other. Quesnel city counsel had considered the issue of whether or not to issue the permits on August 26, 2002 and July 28, 2003, respectively.

[3] The developments authorized by the permits have long since been built. It does not appear that the plaintiff has any particular legal interest in the developments, and came before the court simply as a taxpayer, alleging that that was sufficient to give it standing. The plaintiff chose not to adopt the normal, expeditious methods of challenging the city’s actions by petition under section 262 of the Local Government Act, R.S.B.C. 1996, c. 323 or under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. Instead, it included its claim that the permits were invalid within very complex litigation. It took almost two years for the matter to get to trial. The trial itself was long and complex, and judgment was not released until almost three years had elapsed from the time the last permit was issued.

[4] The trial judge noted that by the time of trial the buildings purportedly authorized by the development permit had been built, leased, and occupied. Understandably, he wished to know what would be gained by granting a declaration as to the invalidity of the development permits at that point. At paragraph 198 of his judgment, the trial judge states:

During argument, I asked counsel for the plaintiff what the effect of the declaration sought would be. Would, for example, the buildings have to be torn down? Counsel’s response, essentially, was that his client is entitled to the declaration sought and the consequences that flow from it would have to be decided in subsequent proceedings. He said he didn’t know what the next step would be.

[5] The plaintiff’s factum sheds no further light on the reasons for seeking a declaration. Before us this morning, counsel suggested that a declaration might lead the municipality to issue new development permits conforming to the development that has occurred. Alternatively, he said, there might be some further litigation, though he was vague as to what that might be.

[6] The trial judge held that declaratory relief is discretionary, and indicated that he was not prepared to entertain such relief in the circumstances of this case. He cited as reasons for exercising his discretion against granting relief as being that third parties might be affected by such a declaration, and that the delay in having the matter come to the court was excessive.

[7] The plaintiff argues that the learned trial judge was in error in holding that he had discretion to refuse to grant declaratory relief. In support of this proposition, it relies on the decision of this court in Hornby Island Trust Committee v. Stormwell (1988) 53 D.L.R. (4th) 435. In that case, the local authority brought an action to enjoin a landowner from using his property in a manner that allegedly breached a bylaw. The owner argued that the bylaw was invalid. The local authority argued that even if the bylaw was invalid, the court could refuse to declare it invalid, and thereby uphold it. The court rejected that proposition. Lambert J.A., with whom Hutcheon J.A. concurred, stated at p. 440:

It is unnecessary in this case to discuss whether such a power to withhold a declaration of invalidity rests with the judge who hears the request for a declaration. The reason is that such a power cannot apply to cases where the by-law was wholly void from its inception because of failure to comply with a statutory pre-condition to validity. If such a power rests with a judge, it must be confined to cases where the flaw in the by-law renders it merely voidable.

Macdonald J.A., concurring, at p. 448 referred to Zamir, The Declaratory Judgment (Stevens & Sons Ltd., 1962) at p. 183 as follows:

Discretion with reference to the declaratory judgment, means that even though the plaintiff may have proved his right, the court, taking into account a variety of considerations, may still refuse to declare it.

[8] He indicated that the general statement put forward by Zamir was not applicable to the case before the court:

It is my opinion that the discretion which may be involved in the grant of declarations is not available to the court when a defendant pleads and proves that a statutory prerequisite to the adoption of a by-law was not fulfilled.

[9] In my view, the words of this Court in Hornby Island Trust v. Stormwell have been misconstrued by the plaintiff. The question in that case was whether, notwithstanding its invalidity, the plaintiff local authority could take action against a landowner under a bylaw. Not surprisingly, the court ruled that it would not enforce a void bylaw against a defendant who had pleaded its invalidity.

[10] Nothing in the court’s statements in Hornby Island Trust v. Stormwell should cast any doubt on the general proposition that declaratory relief per se is discretionary. (see Sarna, The Law of Declaratory Judgments (3^rd ed.) Toronto: Thomson Carswell, 2007, particularly at chapter 3; and Zamir, The Declaratory Judgment (2^nd ed.) London: Sweet & Maxwell, 1993, particularly at chapter 4). When an action is brought by a plaintiff seeking a declaration, the court may deny relief on several discretionary grounds, including standing, delay, mootness, the availability of more appropriate procedures, the absence of affected parties, the theoretical or hypothetical nature of the issue, the inadequacy of the arguments presented, or the fact that the declaration sought is of merely academic importance and has no utility. I do not suggest that this list is exhaustive.

[11] Unfortunately, this Court’s remarks in Hornby Island Trust v. Stormwell were misunderstood by the trial court in Newson v. Esquimalt (Township) [1989] B.C.J. No. 525 (S.C.), which case was followed in Highlands Preservation Society v. Highlands (District) 2005 BCSC 1743. While these latter cases may well be rightly decided on their merits, they should not be followed insofar as they stand for the proposition that the trial court lacks discretion to deny declaratory relief where a plaintiff alleges that a bylaw is void.

[12] The plaintiff also places considerable reliance on statements made in the judgment of the Supreme Court of Canada in Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326. That case concerned the validity of a municipal taxation bylaw. A taxpayer sought a declaration that the bylaw was invalidly enacted, but waited five years before bringing the matter to the court. The Quebec Superior Court dismissed the action for a declaration of nullity on discretionary grounds, holding that the delay in bringing the action had been excessive. The Quebec Court of Appeal and Supreme Court of Canada affirmed the judgment.

[13] The proceeding was brought under article 33 of the Quebec Code of Civil Procedure, a provision effectively vesting judicial review powers in the Quebec Superior Court. The Supreme Court of Canada considered the case to be one in which the municipality had jurisdiction to enact the bylaw, and found that the judge had properly exercised discretion in refusing a remedy. At paragraph 99 of the judgment, Gonthier J., for a unanimous court, stated:

In my view, and in general terms, apart from a case where there is a total absence of jurisdiction, a judge hearing an application under art. 33 of the Code of Civil Procedure may refuse to grant the relief sought if, in view of the circumstances, including the importance of the alleged infringement of a right and the plaintiff’s behaviour, he considers it justified to do so.

[14] The plaintiff reads this statement as if it stood for the proposition that a trial judge in an action for a declaration lacks discretion to refuse relief where an action is challenged on the basis of a “total absence of jurisdiction”. I do not understand that to be the issue that Gonthier J. was addressing. He was discussing the breadth of discretion in a case where total absence of jurisdiction was not at issue. While the passage that is cited suggests that a more narrow discretion might apply in cases of total absence of jurisdiction, the court was not called upon to define the breadth of discretion in such a case.

[15] In the more recent decision of the Supreme Court of Canada in London (City) v. RSJ Holdings Inc. [2007] 2 S.C.R. 588, 2007 SCC 29, the court dealt with a statutory power to quash a bylaw. It stated, at paragraph 39:

The power to quash a by-law for illegality contained in s. 273(1) of the Municipal Act, 2001[, S.O. 2001, c. 25] is discretionary. Of course, in exercising its discretion, the court cannot act in an arbitrary manner. The discretion must be exercised judicially and in accordance with established principles of law. Hence, when there is a total absence of jurisdiction, a court acting judicially will quash the by-law. In other cases, a number of factors may inform the court’s exercise of discretion including, the nature of the by-law in question, the seriousness of the illegality committed, its consequences, delay and mootness. For a helpful discussion on the discretionary power to quash a municipal by-law, see Immeubles Port Louis Ltée v. Lafontaine (Village).

[16] Again, there is a suggestion that some discretion, though clearly a narrow one, might apply in cases where the matter at issue is a “total lack of jurisdiction”.

[17] I do not think that the comments in either Immeubles Port Louis Ltée or RSJ Holdings are of assistance to the plaintiff. The case at bar is not a case of “total absence of jurisdiction”. The City clearly has jurisdiction to issue development permits, and the issue here is whether it has done so properly. The errors alleged in this case, while in a broad sense “jurisdictional” do not fall into the category the Supreme Court was alluding to in those cases. Further, I do not read either case as suggesting that there is a complete absence of discretion even in cases that fall into the category of “total absence of jurisdiction”; nothing in the judgments suggests, for example, that lack of standing or absence of utility would not be considered as discretionary bars to relief in such cases.

[18] The learned trial judge had discretion to refuse to entertain the plaintiff’s action for a declaration. In determining whether or not to exercise that discretion in this case, he properly considered the possibility of adverse effects on third parties, the plaintiff’s delay in bringing the matter before the court, the plaintiff’s limited interest in the matter, the lack of any clear utility to a declaration, and the fact that the developments in question had already been built in reliance on the permits. All of these factors were properly taken into account by the learned trial judge. I can see no basis for interfering with his exercise of discretion.

[19] I would dismiss the appeal.

[20] LOW, J.A.: I agree

[21] FRANKEL, J.A.: I agree.

[22] LOW, J.A.: The appeal is dismissed.

“The Honourable Mr. Justice Groberman”

Citation:	*Gook Country Estates Ltd. v. Quesnel (City of),*
	2008 BCCA 407