IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Martin v. The City of Vancouver, |
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2006 BCSC 1260 |
Date: 20060725
Docket: S064324
Registry: Vancouver
Between:
Terry
Martin, Jan Pierce, Quincey Kirschner, Raymond Tomlin, and
Tony Tang, all on behalf of the Vancouver Board of Variance and Parking Variance
Board, and the Vancouver Board of Variance and
Parking Variance Board
Petitioners
And:
The City of Vancouver
Respondent
Before: The Honourable Mr. Justice Bauman
Oral Reasons for Judgment
In Chambers
July 25, 2006
| Counsel for the Petitioners |
D. C. Creighton |
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| Counsel for the Respondent |
G. K. Macintosh, Q.C.
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| Counsel for the Ministry of the Attorney General of British Columbia |
G. H. Copley, Q.C. |
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Place of Trial/Hearing: |
Vancouver, B.C. |
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I
[1] THE COURT: The Board of Variance for the City of Vancouver is a quasi judicial tribunal established under ss. 572 and 573 of the Vancouver Charter, S.B.C. 1953, c. 55. The Board’s jurisdiction comprises principally two elements:
• hearing appeals for a variance of the zoning regulations that would otherwise apply to a property; and
• hearing appeals from decisions “on a question of zoning by any official charged with the enforcement of a zoning bylaw”.
[2] On 27 and 29 June 2006, Vancouver City Council, sitting in camera considered and passed a five-part resolution rescinding the appointment of the chair and the other four members of the Board. The rescissions were effective immediately. The individual Board members were not afforded an opportunity to be heard by City Council prior to the passage of the resolution.
[3] The wholesale rescission of the appointments of members of a quasi judicial tribunal, on the face of it, and without reference to the legislative scheme, does not sit well with many persons’ notions of judicial independence. The action of City Council has been very controversial. These proceedings by the ousted members of the Board of Variance have resulted.
[4] The petitioners seek this relief, and here I am quoting from the petition:
1. An order pursuant to Sections 2 and 7 of the Judicial Review Procedure Act quashing the Resolution of the Council of the Respondent to dismiss the members of the Board of Variance;
2. An order enjoining the City from appointing new Board of Variance appointments until the end of the terms of the existing members except by further order of this Honourable Court;
3. A declaration that the decision of the City Council was made without jurisdiction and in bad faith;
4. A declaration that section 572(2.1) of the Vancouver Charter SBC 1953 c.54 [sic] is void insofar as it fails to provide secure tenure for Board Members or should be read down as only applying where there is reasonable cause for such a recession [sic];
5. A declaration that the decision of Council is void as having failed to comply with principles of Natural Justice.
II
[5] The theme developed by the petitioners in oral argument and written submissions essentially conjures a scenario in which City Council and staff, in particular senior planning staff, had become disgruntled with the Board’s independent approach to its duties both in the decisions it has made and in its efforts to control the hiring and management of its staff. The petitioners suggest that Council’s "firing" of the Board has resulted from this disgruntlement and that it is really little more than a veiled attempt to control the Board in the future.
[6] The petitioners summarize this point in their submissions at page 5 in this way:
While apprehension of bias is often created by the circumstances of an appointment or as a result of a lack of structural safeguards it is submitted that in the case at hand the circumstances of the Board’s termination raise a very real apprehension of bias. This is confirmed by the reaction of the press to this decision. The improper rescission of appointments creates an apprehension of bias and will influence all future Boards of Variance and will severely affect the integrity of the Board as an institution. The wholesale firing of the full Board for decisions that, specifically in regards to budgetary matters (which four of the five members of the Board had no say in whatsoever) and jurisdictional issues, will have the following consequences.
[7] And then they are set out in (a) to (d) of the written submission.
[8] Sitting in judicial review of council's resolution, I am not properly concerned with what effect council’s action may have in the future on future boards, and the public’s perception thereof. I am rather concerned with the lawfulness of the present resolution itself and the process which led to its adoption.
[9] In argument, I pointed this out to counsel for the petitioners and he reframed his point to this effect: what Council has done here has been activated by the improper motive, the bad faith motive, of getting rid of what City Council perceived to be maverick Board and by replacing it with a more compliant one. Effectively, counsel argues that the members of the Board have been dismissed for an improper purpose. This is a very serious allegation.
[10] Further, and in the alternative, the petitioners argue that in any event Council owed a duty of procedural fairness to the members of the Board of Variance and that they were entitled to some form of hearing before their dismissal.
[11] In pursuing relief in respect to s. 572(2.1) of the Vancouver Charter, it is important to note that the petitioners have not issued notice under s. 8 of the Constitutional Question Act, R.S.B.C. 1996, c. 68 and that there is no constitutional challenge to the validity of the subsection before the court.
III
[12] The threshold question on this application concerns the scope of City Council’s authority to remove members of the Board of Variance.
[13] I began these reasons by suggesting that public notions of judicial independence may be initially offended by Council’s resolution.
[14] But what independence an administrative tribunal, like Vancouver’s Board of Variance, enjoys, depends entirely on what the legislature has provided.
[15] This was the point made unequivocally by the Supreme Court of Canada’s decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781.
[16] There, members of the Liquor Appeal Board under the enabling legislation “serve at the pleasure of the Lieutenant Governor in Council”.
[17] The British Columbia Court of Appeal concluded that the members of the Appeal Board lacked the necessary guarantees of independence required of administrative decision-makers imposing penalties and set aside a Board decision suspending the liquor license of an establishment.
[18] Chief Justice McLachlin held at ¶ 20-23:
20 This conclusion, in my view, is inescapable. It is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. It is the legislature or Parliament that determines the degree of independence required of tribunal members. The statute must be construed as a whole to determine the degree of independence the legislature intended.
21 Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal's process to comport with principles of natural justice: Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, at p. 503; Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767, at pp. 783-84. In such circumstances, administrative tribunals may be bound by the requirement of an independent and impartial decision maker, one of the fundamental principles of natural justice: Matsqui, supra (per Lamer C.J. and Sopinka J.); Régie, supra, at para. 39; Katz v. Vancouver Stock Exchange, [1996] 3 S.C.R. 405. Indeed, courts will not lightly assume that legislators intended to enact procedures that run contrary to this principle, although the precise standard of independence required will depend "on all the circumstances, and in particular on the language of the statute under which the agency acts, the nature of the task it performs and the type of decision it is required to make": Régie, at para. 39.
22 However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. See generally: Innisfil (Corporation of the Township of) v. Corporation of the Township of Vespra, [1981] 2 S.C.R. 145; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105. Ultimately, it is Parliament or the legislature that determines the nature of a tribunal's relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator's intention in assessing the degree of independence required of the tribunal in question.
23 This principle reflects the fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. The same constitutional imperative applies to the provincial courts: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (the "Provincial Court Judges Reference"). Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. It protected, and continues to protect, the impartiality of judges — both in fact and perception — by insulating them from external influence, most notably the influence of the executive: Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 69; Régie, at para. 61.
[19] The Chief Justice noted the "at pleasure" nature of the Board’s appointment and concluded, at ¶ 27:
27 In my view, the legislature's intention that Board members should serve at pleasure, as expressed through s. 30(2)(a) of the Act, is unequivocal. As such, it does not permit the argument that the statute is ambiguous and hence should be read as imposing a higher degree of independence to meet the requirements of natural justice, if indeed a higher standard is required. It is easy to imagine more exacting safeguards of independence — longer, fixed-term appointments; full-time appointments; a panel selection process for appointing members to panels instead of the Chair's discretion. However, in each case one must face the question: "Is this what the legislature intended?" Given the legislature's willingness to countenance "at pleasure" appointments with full knowledge of the processes and penalties involved, it is impossible to answer this question in the affirmative. Huddart J.A. concluded that the tenure enjoyed by Board members was "no better than an appointment at pleasure" (para. 27). However, this is precisely the standard of independence required by the Act. Where the intention of the legislature, as here, is unequivocal, there is no room to import common law doctrines of independence, "however inviting it may be for a Court to do so": Re W. D. Latimer Co. and Bray (1974), 6 O.R. (2d) 129 (C.A.), at p. 137.
[20] That takes us to the legislation at bar.
[21] The critical provisions are found in s. 572 of the Vancouver Charter and the relevant subsections provide:
(2) Subject to subsection (2.1), each member of the Board shall hold office for a term of three years or until his successor shall be appointed, but a person may be reappointed for a further term or terms.
(2.1) The Council may rescind an appointment to the Board at any time.
[22] The language of s-s. (2.1) certainly suggests that Council has a virtually unfettered power to rescind Board appointments. (I acknowledge of course here that no discretion is wholly unfettered: see the well-known decision of Justice Rand in Roncarelli v. Duplessis, [1959] S.C.R. 121).
[23] Counsel for the petitioners argues with some force that the juxtaposition of the broad power in s-s. (2.1) with a three year term of appointment for Board members provided for in s-s. (2), creates the type of ambiguity referred to by Chief Justice McLachlin in Ocean Port.
[24] However, s-s. (2) creating the three-year term, is expressly "subject to subsection (2.1)".
[25] And, it is apparent that this phrase in s-s. (2) and the whole of s-s. (2.1) were added to the Vancouver Charter by the legislature in 2003 in Bill 22.
[26] Before the promulgation of Bill 22, members of the Vancouver Board of Variance apparently could not be removed before the expiration of their three-year terms.
[27] In my view, the addition by the Legislature of s-s. (2.1) in 2003, can mean only one thing: the Legislature intended to accord City Council a very broad power to rescind the appointments of members of the Board of Variance. While such members are appointed ostensibly to three-year terms, the power to rescind those appointments “at any time” makes them "at pleasure" appointments. True, the Legislature did not use that well-tested phrase, but it has used clear, plain language and in accordance with modern principles of statutory interpretation, I must give effect to that language in accordance with its ordinary grammatical sense.
[28] I agree with the City’s submission, and that of the Attorney General of British Columbia, that the Board of Variance is certainly within the reasoning applied to the Liquor Appeal Board in Ocean Port. In my view, the reasoning in that case is determinative here. There is no room for the argument of petitioners seeking a declaration that s. 572 (2.1) of the Vancouver Charter is “void insofar as it fails to provide secure tenure for Board members or should be read down as only applying where there is reasonable cause for such a rescission”.
[29] What is the essential nature of an "at pleasure" appointment?
[30] Guidance is found in the decision of the Manitoba Court of Appeal in Chadee v. Ross (1996), 139 D.L.R. (4th) (Man.C.A.).
[31] Justice Huband (with Justice Helper concurring) stated at p. 592 of the report:
The common law principle as it applies to employees of the Crown is clear enough. Halsbury’s Laws of England, 4th ed., vol. 8, para. 1106 states:
Tenure of Office. Except where it is otherwise provided by statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown, and all, in general, are subject to dismissal at any time without cause assigned.
[32] In the result, and in the face of s. 572(2.1) of the Vancouver Charter, Vancouver City Council need not articulate any cause for exercising its power to rescind a Board of Variance appointment "at any time".
[33] As counsel for the City submits, that power is constrained only by s. 148 of the Vancouver Charter which provides:
148. A by-law or resolution duly passed by the Council in the exercise of its powers, and in good faith, shall not be open to question at any Court, or be quashed, set aside, or declared invalid, either wholly or partly, on account of the unreasonableness or supposed unreasonableness of its provisions or any of them.
[34] The constraint on City Council then, when it exercises its power to rescind Board of Variance appointments, is the requirement that it act in good faith.
[35] "Good faith", it has been authoritatively said in the context of municipal law is established by the absence of bad faith.
[36] The burden of proving bad faith rests on she who alleges it and it is a heavy burden.
[37] The classic statement of what constitutes bad faith was made by Justice Middleton in Re Foster v. Raleigh (Township), [1910] O.J. No. 7 (Ont.H.C.J.) at ¶ 6:
¶ 6 In my view, the Courts cannot too carefully refrain from entering into matters that by law are made the subject of municipal control. When it is made to appear that the municipal council is acting fraudulently or maliciously, and has in fact abdicated its real function, and is exercising its powers for the attainment of private ends or the gratification of private revenge, then the Court may well interfere; but with respect to all matters delegated to the municipality the council is supreme, and the Court has no power to supervise or criticise. With regard particularly to all questions which arise regarding matters which have or are supposed to have some relation to morals or social questions, nothing could be more dangerous than any attempt to enter upon the motives and reasons which have actuated the legislative body. The members of the council must answer to the electors and the electors alone. The annual election enables speedy redress to be had when any "representative" ceases to represent the true views of the community at large.
[38] And I note, of course, that today while we do not have annual elections, we do have them at regular intervals.
[39] While I have said that the City need not articulate and prove cause for its rescission of the Board of Variance appointments, it has led evidence here of the reasons it acted as it has. It has done so, as Mr. Macintosh submits — not to prove cause — but rather to dispel the aura of bad faith alleged by the petitioners.
[40] The City’s material on this application identifies a number of concerns with the Board’s conduct.
[41] In short form these are:
(i) the Board’s assertion that it, to the entire exclusion of the City, employs the staff members assigned to the Board;
(ii) the Board’s management of its budget, in particular its incurrence of substantial legal fees and overtime costs; and
(iii) the number of complaints which the City has received about various decisions of the Board, especially in latter years.
[42] These concerns, apparently, on the material before me, have been brewing for some time but they came to a head in the spring and early summer of this year.
[43] On 21 March 2006, Council on the motion of Councillor Ladner requested:
… [A] memorandum providing information on four matters regarding the Board of Variance: a recent appeal dealt with by the Board; other appeals to the Board over the past several years; the amount spent for legal services for the Board; and the request by the Board for amendments to the Vancouver Charter to expand its authority.
[44] This last reference arose out of the Court of Appeal’s decision in No. 249 Cathedral Ventures Ltd. v. Vancouver (City) Board of Variance, 2005 BCCA 428. This request led to the preparation of a memorandum concerning these points by the Deputy City Manager dated 18 April 2006. That memorandum, in turn, was put before Council as part of the staff briefing which preceded the in camera resolution of late June 2006 rescinding the Board of Variance appointments.
[45] I interject to note that traditionally appointments to civic agencies are handled in camera by City Council.
[46] Counsel for the petitioners submits that City Council’s concerns go to the very jurisdiction of the Board of Variance; that they essentially strike at the independence of the Board and threaten it.
[47] I disagree. Appointments to the Board are in the discretion of Council. The rescission of those appointments is likewise so. Cause for rescission need not be shown. Given such a broad power of control over the Board, it cannot be said that Council cannot have regard to: either how the Board manages its staff and budget; nor, indeed, how it exercises its jurisdiction. This latter consideration is the most controversial. It is offensive, I suspect, to most Canadians to conceive of a regime in which a judge can be dismissed by the Legislature at will because it does not like that judge’s decisions.
[48] But in the legislative scheme which contemplates "at pleasure" appointments to the Board of Variance, it seems to me that a concern with decisions by a particular Board can be a proper, and not an alien and irrelevant consideration, for City Council. As Ocean Port holds, it is the Legislature or Parliament that determines the degree of independence required of the tribunal members, and the Legislature here has spoken in the Vancouver Charter, in particular in s. 572(2.1).
[49] As I have concluded that the concerns apparently motivating City Council are not alien or irrelevant considerations in the statutory scheme, I do not propose to engage in an analysis of whether they are concerns which can be justified on the record. The merits of Council’s reasons for acting are not reviewable by this court. As s. 148 of the Vancouver Charter states:
a resolution duly passed by the Council in the exercise of its powers shall not be open to question in any court on account of the unreasonableness or supposed unreasonableness of its provisions …
[50] The constraint on Council is that it act in "good faith". Nothing in the record before me establishes, as the petitioners must, bad faith on the part of Council as that term has been judicially defined. The petitioners’ essential submission that Council is reining in an independent-minded Board with the intention of appointing a compliant and intimidated Board in the future is, I say respectfully, rhetoric which is not supported by the evidence in the record. The bad faith submission cannot prevail.
IV
[51] I turn to the question of whether City Council must afford members of the Board procedural fairness before exercising its power of rescinding an appointment. In particular, must Council give a Board of Variance appointee an opportunity to be heard before his or her appointment is rescinded? I approach this issue in light of the particular circumstances before me where Council has seen fit to rescind the appointments of the entire Board.
[52] Procedural entitlements for "at pleasure" appointees was the focus of the House of Lords decision in Ridge v. Baldwin, [1964] A.C. 40 (H.L.).
[53] While its application has been qualified in Canada, it is instructive to begin this discussion with reference to Lord Reid’s speech in Ridge v. Baldwin at pp. 65-66:
… It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason. That was stated as long ago as 1670 in Rex v. Stratford-on-Avon Corporation, where the corporation dismissed a town clerk who held office durante bene placito. The leading case on this matter appears to be Reg. v. Darlington School of Governors although that decision was doubted by Lord Hatherley L.C., in Dean v. Bennett, and distinguished on narrow grounds in Willis v. Childe. I fully accept that where an office is simply held at pleasure the person having power of dismissal cannot be bound to disclose his reasons. No doubt he would in many cases tell the officer and hear his explanation before deciding to dismiss him. But if he is not bound to disclose his reason and does not do so, then, if the court cannot require him to do so, it cannot determine whether it would be fair to hear the officer's case before taking action. …
[Footnotes omitted.]
[54] As I say, that decision has been qualified in Canada — principally by the Supreme Court of Canada’s decision in Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, [1979] 1 S.C.R. 311 and Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653.
[55] In Knight, the court considered the dismissal of the Director of Education of the School Division. He enjoyed a written contract of employment which provided for annual reviews.
[56] The court considered the requirement for procedural fairness in the context of his dismissal.
[57] Justice L’Heureux-Dubé wrote for herself and three other Justices representing the majority. At p. 668 she held:
The conclusion that the respondent's employment could be legally terminated without a showing of just cause does not necessarily entail that the procedure involved can be arbitrary. There may be a general right to procedural fairness, autonomous of the operation of any statute, depending on consideration of three factors which have been held by this Court to be determinative of the existence of such a right (Cardinal v. Director of Kent Institution, supra). If consideration of these factors in the context of the present appeal leads to the conclusion that the respondent was entitled to procedural fairness, The Education Act and, in this case, the terms of the contract of employment, must then be considered to determine whether this entitlement is either limited or excluded entirely. It should be noted at this point that the duty to act fairly does not depend on doctrines of employment law, but stems from the fact that the employer is a public body whose powers are derived from statute, powers that must be exercised according to the rules of administrative law. …
[58] Her Ladyship identifies the three factors at p. 669:
The existence of a general duty to act fairly will depend on the consideration of three factors: (i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual's rights. This Court has stated in Cardinal v. Director of Kent Institution, supra, that whenever those three elements are to be found, there is a general duty to act fairly on a public decision-making body (Le Dain J. for the court at p. 653).
[59] Under the factor "The Nature of the Decision" Justice L’Heureux-Dubé said this at pp. 669-70:
There is no longer a need, except perhaps where the statute mandates it, to distinguish between judicial, quasi-judicial and administrative decisions. Such a distinction may have been necessary before the decision of this Court in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311. Prior to this case, the "duty to act judicially" was thought to apply only to tribunals rendering decisions of a judicial or quasi-judicial nature, to the exclusion of those of an administrative nature. Following Nicholson, that distinction became less important and was found to be of little utility since both the duty to act fairly and the duty to act judicially have their roots in the same general principles of natural justice (see Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96, per Sopinka J. for the majority).
On the other hand, not all administrative bodies are under a duty to act fairly. Over the years, legislatures have transferred to administrative bodies some of the duties they have traditionally performed. Decisions of a legislative and general nature can be distinguished in this respect from acts of a more administrative and specific nature, which do not entail such a duty (see Dussault and Borgeat, Traité de droit administratif, t. III, 2nd ed., at p. 370; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 758, per Estey J. for the Court). The finality of the decision will also be a factor to consider. A decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such an effect (Dussault and Borgeat, op. cit., at p. 372).
[60] Under the factor “The Relationship Between the Employer and the Employee” Justice L’Heureux-Dubé cited Ridge v. Baldwin and Lord Reid’s three categories of employment relationships. She noted them as these at pp. 670-71:
… (i) the master and servant relationship, where there is no duty to act fairly when deciding to terminate the employment; (ii) the office held at pleasure, where no duty to act fairly exists, since the employer can decide to terminate the employment for no other reason than his displeasure; and (iii) the office from which one cannot be removed except for cause, where there exists a duty to act fairly on the part of the employer. These categories are creations of the common law.
[61] The learned justice then spoke of the evolution in the law since Ridge v. Baldwin at pp. 672-75:
Being an office, the respondent's situation would fall into one of the last two of Lord Reid's categories. As I have already analyzed the employment contract and The Education Act with regard to the question of whether the respondent could be dismissed only for cause, and concluded in the negative, the employment relation existing between the respondent and the appellant Board would fall into the second of Lord Reid's categories, i.e., an office held at pleasure. I find, however, that this conclusion does not ineluctably lead to the conclusion that the appellant Board was not under a duty to act fairly, as may seem to flow from the judgment of the House of Lord in Ridge v. Baldwin, supra. Administrative law has evolved in recent years, particularly in the Canadian context, so as to make procedural fairness an essential requirement of an administrative decision to terminate either of the last two classes of employment described by Lord Reid. In Nicholson, supra, although the employee was found to be dismissable for cause, Laskin C.J., after referring to the three-class system developed by Lord Reid in Ridge v. Baldwin, supra, expressed some doubts about limiting the duty to act fairly to cases of dismissal for cause, to the exclusion of cases where offices are held at pleasure. …
The justification for granting to the holder of an office at pleasure the right to procedural fairness is that, whether or not just cause is necessary to terminate the employment, fairness dictates that the administrative body making the decision be cognizant of all relevant circumstances surrounding the employment and its termination (Nicholson, supra, at p. 328, per Laskin C.J.). One person capable of providing the administrative body with important insights into the situation is the office holder himself. As pointed out by Lord Reid in Malloch v. Aberdeen Corp., supra, at p. 1282: "The right of a man to be heard in his own defense is the most elementary protection of all ...." To grant such a right to the holder of an office at pleasure would not import into the termination decision the necessity to show just cause, but would only require the administrative body to give the office holder reasons for the dismissal and an opportunity to be heard. I would adopt Wade's reasoning when he writes about offices held at pleasure (Administrative Law (5th ed. 1982), at pp. 500-501):
If the officer is subject to some accusation, justice requires that he should be allowed a fair opportunity to defend himself, whatever the terms of his tenure. To deny it to him is to confuse the substance of the decision, which may be based on any reason at all, with the procedure which ought first to be followed for purposes of fairness. It is then an example of the fallacy, already mentioned, that the argument for natural justice is weaker where the discretionary power is wide.
…
... it would seem right therefore to protect the officer or member against wrongful deprivation of every kind and to accord him the procedural rights without which deprivation is not fair and lawful. Whether he is removable for cause or at pleasure should in principle make no difference. [Emphasis added. [by L'Heureux-Dubé J.]]
[62] In Knight, we were dealing with a person’s employment. That was also the fact in cases which have followed Knight in our courts where the issue of the need for procedural fairness was considered:
• Wong v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia, 2005 BCCA 509; and
• Duncan v. Behdzi Ahda First Nation, 2003 FC 1385.
[63] Malloch v. Aberdeen Corporation, [1971] 1 W.L.R. 1578 (H.L.), cited in Knight, was also referred to in Houle v. Canada (Minister of Labour and Immigration), [1987] 2 F.C. 493. This portion of Malloch, dealing with the employment situation, was cited by the Houle court (p. 1597 of Malloch):
In Ridge v. Baldwin my noble and learned friend Lord Reid, said [1964] A.C. 40, 65: "It has always been held, I think rightly, that such an officer" (sc. one holding at pleasure) "has no right to be heard before being dismissed". As a general principle, I respectfully agree: and I think it important not to weaken a principle which, for reasons of public policy, applies at least as a starting point, to so wide a range of the public services. The difficulty arises when, as here, there are other incidents of the employment … or agreement. The rigor of the principle is often, in modern practice mitigated for it has come to be perceived that the very possibility of dismissal without reason being given — action which may vitally affect a man’s career or his pension — makes it all the more important for him, in suitable circumstances, to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void. So, while the courts will necessarily respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and context of the employment to see whether elementary rights are conferred upon him expressly or by necessary implication, and how far these extend. The present case is, in my opinion, just such a case where there are strong indications that a right to be heard, in appropriate circumstances, should not be denied.
[64] So in that context I turn to the legislation at bar. It is important to note that with the Board of Variance members we are not dealing with individuals who serve full-time in an employment-type relationship. The Board is made up of volunteers who meet apparently for one-half to one day every two weeks. They serve without compensation although their expenses are reimbursed.
[65] The rescission of their appointments does not vitally affect their careers or pension, to use the words in Malloch. Section 572(2.1) provides that: "the Council may rescind an appointment to the Board at any time". Mr. Macintosh for the City stresses the words, "at any time", and he forcefully submits that the phrase does not suggest pre-rescission hearing rights. He argues that to graft such rights onto the power to rescind appointments would be to seriously qualify the freedom of action Council apparently enjoys "at any time". Mr. Macintosh also forcefully reminds the Court of Chief Justice McLachlin’s recent admonitions about implying judge-made qualifications on the exercise of municipal powers by elected politicians (see for example Justice McLachlin, as she then was, in Shell Canada Products Ltd. v. Vancouver (City) (1994), 110 D.L.R. (4th) 1 (S.C.), at p. 25).
[66] So I approach the issue of whether there is a duty to accord Board members procedural fairness in the context of the factors identified in Knight.
[67] Under factors two and three, that is: the relationship between City Council and the Board of Variance members and the effect of the decision on Board members’ rights, I have already discussed the fact that the Board is made up of volunteers who serve very much part-time. The security of their employment and livelihoods are not at stake here.
[68] I would like to spend a little more time on the first factor: the nature of the decision made by the administrative body — here the Council of the City of Vancouver.
[69] At first blush, the rescission of a Board of Variance appointment does appear to be an administrative act affecting an individual’s “rights” in office. It is initially difficult to characterize the rescission of a specific appointment as an act of a legislative nature, thus negativing notions of procedural fairness. But here we have the rescission of all appointments to the existing Board.
[70] Institutionally speaking, there has been a clean sweep.
[71] Clearly it can be inferred from the record that Council was concerned with the entire Board, not just individual members of it. This is made clear by the inclusion of Board member Tony Tang in the rescission. He was only appointed in April 2006 and could hardly be viewed as an author of the more historical problems Council apparently had with the Board. The dismissal of the entire Board suggests that Council had a concern with the Board as an institution.
[72] This suggests that Council was motivated by general policy concerns (I include here budgetary, personnel, and reputational concerns with the Board in the community). Such a motivation suggests that Council was acting in more of a legislative, policy-driven, role rather than as an adjudicator determining an individual’s rights to public office.
[73] As Justice Southin noted in another context in Jones v. Delta (District) (1992), 69 B.C.L.R. (2d) 239 (C.A.) at 261, the standard of procedural fairness which the Legislature would expect to be observed in a matter before a municipal Council depends on what the Council is really doing on any particular matter. Here, Council is addressing an institutional problem with the Board of Variance generally. It is acting in essentially a legislative capacity. A consideration of this factor, the nature of the decision, strongly favours the conclusion that, in the context of this particular decision, Council owed no duty of procedural fairness to the Board members. A consideration of the other Knight factors supports this conclusion.
[74] To summarize my conclusions then:
(1) Section 572(2.1) is not void nor is it to be read down as only applying where there is reasonable cause for a rescission;
(2) The petitioners have not established that Council acted in bad faith in adopting the rescission resolution. City Council did not consider improper matters in exercising its jurisdiction; and
(3) In the circumstances of this case, City Council did not owe a duty of procedural fairness to the appointed members of the Board of Variance.
[75] The petition is accordingly dismissed.
(Submissions re costs)
[76] THE COURT: I would agree with Mr. Creighton’s submission except for one consideration, that is that bad faith was alleged. There is a taint in alleging bad faith, a taint that settles on the person against whom bad faith is alleged. In those circumstances I think it is appropriate that the normal order for costs go. Costs to the City of Vancouver will follow the event.
“R.J. Bauman, J.”
The Honourable Mr. Justice R.J. Bauman
July 25, 2006 – Revised Judgment
Corrigendum to Oral Reasons for Judgment issued advising that Counsel for the respondent, G. Johnson, should be deleted and the name T.A. Dickson added as counsel for the respondent.