2008 BCSC 834 Coton v. Cultus Lake Park Board

Before: The Honourable Madam Justice H. Holmes

Reasons for Judgment

Counsel for the Petitioners:	D.G. Perry J. Copeland
Counsel for the Respondent, Cultus Lake Park Board:	P. Pearlman, Q.C.
Counsel for the Respondent, Cultus Lake Water Park:	K.L. Boonstra
Date and Place of Hearing:	January 9-11, 2008
	Vancouver, B.C.

INTRODUCTION

[1] The petitioners are members of the Cultus Lake community who challenge various decisions and actions that the respondent Cultus Lake Park Board took to allow for a major expansion of the local water park operated by the other respondent, Cultus Lake Waterpark Ltd. (the “Water Park”).

[2] The petitioners say that the Board’s decisions and actions to allow for the expansion were, variously, invalid as violating either or both of (a) the Board’s by-law (called the “Cultus Lake Park Plan”, which I will abbreviate to the “Park Plan”), and (b) the requirements of procedural fairness toward members of the community, which stood to be significantly impacted by one of the largest developments in the park’s history. The petitioners impugn in particular the Board’s decision not to require the Water Park to produce various assessments and reports concerning the effects of the proposed expansion, until well after the public meeting that the Park Plan required. They say also that the Park Plan, as amended shortly after that public meeting, is impermissibly vague, in failing to adequately denote the geographic area of the expansion.

[3] The Board and the Water Park respond that the Board had an unconstrained discretion to determine how much detail to require in the Water Park’s reports concerning the potential effects of the expansion, and whether and when to make those reports public. They say that the Board’s various decisions and actions were lawful, and met the requirements of procedural fairness, and that in any event the court should not exercise its discretion to grant relief at this late stage when the construction is well underway and substantial prejudice would result.

[4] After the parties made their submissions and the court reserved judgment, the Supreme Court of Canada issued its decision in Dunsmuir v. New Brunswick, 2008 SCC 9 concerning the standard and scope of judicial review. The parties were invited but declined to make further submissions.

SOME CONTEXT

[5] Cultus Lake Park comprises an area of about 251 hectares, and has a community of about 1,000 residents. It attracts an additional 3-4 million visitors each year, mostly in the summer months.

[6] The community is governed by the Cultus Lake Park Act, S.B.C. 1932, c. 63.

[7] Section 3 of that Act establishes the Board, with five members elected from the District of Chilliwack and two members elected by the residents and leaseholders in Cultus Lake Park.

[8] Section 3 gives the Board its responsibility in very general terms: “[the Board] … shall have the regulation, management, maintenance, and improvement of Cultus Lake Park”. Only in very few areas of the short Act are more specific powers set out.

[9] One such power is in s. 14, which authorizes the Park Board to issue leases of “campsites” and “building sites” “for private or public use”. It is on the basis of leases issued under s. 14 that the year-round residents, who include the petitioners, live in permanent residences on land leased as “campsites”, and that 18-plus businesses operate in the park.

[10] In 1997, the Board developed the Cultus Lake Park Plan as the equivalent of an official community plan for zoning and community planning, and adopted it on March 18, 1998, as By-Law 1-1998. Section 12.0 of the Park Plan sets out a process for the amendment of the Park Plan to allow for a major development, and requires that the developer produce reports concerning the potential effects of the development before a public meeting concerning the development.

[11] One of the first of the steps the Board took to allow for the water park expansion was to amend the Park Plan in February 2005. As I will discuss below, the petitioners challenge this step as not in compliance with s. 12.0 of the Park Plan, and they challenge most of the other main steps that followed, to and including the Board’s final approval of the expansion in early 2007.

THE PETITION

[12] The petitioners filed their petition on June 25, 2007.

[13] They challenge, and the respondents defend, specifically:

(a) the February 9, 2005 amendment of the Park Plan, to re-designate as “Commercial” a portion of the “Village Center” area

(b) the decision to approve a revised “Plan Concept” map (referred to as “Figure 2” to the Park Plan), to apply if the February 9, 2005 amendment took place through that vehicle

(d) the grant of a lease on August 19, 2006 to the Water Park, including the additional lands required for the expansion

(e) the decision in November 2006 to approve a new location in the Park for the community septic standby field, a decision required (by the Fraser Valley Regional District) because the expansion would displace the existing septic standby field

(f) the decision in or about February 2007 giving final approval to the expansion, and authorizing construction to begin.

[14] They challenge each of these steps (except for the grants of conditional and final approval, see (c) and (f) above) as violating s. 12 of the Park Plan because the Board relieved the Water Park from producing detailed assessments and reports on the potential effects of the expansion before the required public meeting.

[15] They also challenge each of the actions or decisions (except the lease, (d) above) as taken in violation of the requirements of procedural fairness.

[16] And, as to the February 9, 2005 Park Plan amendment ((a) above), they allege that in any event it is so vague as to be invalid.

[17] Any deficiencies identified by the petitioners’ other challenges (such as that the applicable land use designations did not allow for the lease or the re-location of the septic standby field) are insufficient to ground the relief sought, and will not be the subject of separate consideration in these reasons.

THE ISSUES

[18] The positions of the parties require the determination of the following questions:

1. Did the Board violate s. 12.0 of the Park Plan when it amended the Park Plan, having relieved the Water Park from producing detailed assessments and reports on the potential effects of the expansion before the required public meeting?

2. Was the Park Plan amendment necessary for the expansion?

3. If the answer to the first two questions is “yes”, should relief be denied because the violation was of a non-statutory procedural by-law of the Board’s own making?

4. Is the Park Plan amendment in any event too vague to be valid?

5. Did the Board act without procedural fairness in amending the Park Plan and in its various other decisions and steps to allow for the expansion?

6. If some or all of the challenges are established, should relief, which is discretionary, be granted?

1. DID THE BOARD VIOLATE SECTION 12.0 OF THE PARK PLAN?

[19] The first question is whether the Board violated s. 12.0 by amending the Park Plan without requiring, and making public before a public meeting, sufficient assessments and reports on certain potential effects of the expansion.

[20] Section 12.0 of the Park Plan sets out the procedure for amendment and review of the Park Plan, to allow for a major development proposal such as, it is common ground, the expansion:

12.0 PLAN AMENDMENT AND REVIEW

1. This Plan shall be amended only by a bylaw adopted by the Board and only after a public meeting has been held by the Board.

2. Where a proposed amendment of the Plan is being considered, notice will be mailed or otherwise delivered at least 20 days prior to the public meeting of the Board.

3. The Board may amend this Plan in consideration of a major development proposal, but only where, prior to a public meeting, the development proponent has assessed and reported on the effects of the development on:

a) scenic values of the park

b) recreation use and quality

c) water supply and waste disposal infrastructure

d) traffic volumes in the park

e) Park Board revenues and costs.

4. The Board will review and update the Plan every five years.

[21] The pertinent public meeting was held on January 26, 2005. The Board passed the Park Plan amendment, which the petitioners impugn, shortly afterwards, on February 9, 2005.

[22] It is common ground that to that time, the Board had not required the Water Park to produce (for the Board or the public) detailed reports and studies concerning the areas of potential effect of the expansion, as listed in s. 12.0(3). Mr. Grant Sanborn, Commissioner and Chair of the Board in his affidavit explained:

The Board . . . determined that it would be inappropriate to ask the development proponent to incur the expense of producing detailed reports and studies without some assurance that the Board would proceed with the waterpark expansion proposal.

[23] Detailed reports were produced much later, between November 2005 and December 2006, well after the February 9, 2005 Park Plan amendment and the Board’s grant of conditional approval for the expansion on September 28, 2005. Indeed, among the seventeen conditions attached to the Board’s conditional approval were conditions requiring the Water Park to produce, at its cost, technical reports and independent peer reviews of those reports, in the areas described in s. 12.0 of the Park Plan. These later, more detailed studies exposed several matters of concern to the petitioners, such as, for example, that the expansion would require a new location within the park for the septic standby field, and that the Ministry of Transportation would require the construction of a traffic roundabout.

[24] The Board and the Water Park submit that the requirements of s. 12.0 were nonetheless met, even without, at or before the public meeting, the detailed reports and studies that were later produced,. This was because the Board itself had, before the public meeting, received general information from the developer, about the potential effects of the expansion proposal. During the fall of 2004, each of the Board and its Advisory Committee met privately on several occasions with Mr. Steunenberg, to review the expansion proposal, and to discuss the potential effects of the expansion in areas such as are listed in s. 12.0(3). The Board, in its submissions, describes these meetings as follows:

Prior to the January 26, 2005 public hearing, both the Committee and the Board had received and considered presentations from the development proponent that identified, at a conceptual level, how the Waterpark proposed to address issues related to landscaping and scenic values, water supply, waste disposal infrastructure, recreation use and quality, traffic volumes in the Park and Park Board revenues and costs, each of the subjects listed in paragraph 12.03 of the Park Use Plan.

[25] The Board and the Water Park submit that s. 12.0 requires neither detailed, written reports on each of the listed factors, nor that any such reports be made public before the public meeting; rather, the degree of detail required of the developer’s reports and assessments, and the extent to which the reports are made public before the public meeting, are matters within the Board’s discretion. The Board submits that even under the more rigorous scheme of the B.C. Local Government Act for the development or amendment of an official community plan, a local government may determine the level of public consultation required, and courts will generally defer to that determination: Gardner v. Williams Lake (City), 2006 BCCA 307 at ¶24-29. The Board submits that its own determination as to the level of reporting from the developer before the public meeting should attract similar deference.

[26] The difficulty with this submission is that it does not answer the objection that the Board held the public meeting, which s. 12.0 requires, without making public (at or before the meeting) even the limited reporting from the developer that the Board had deemed appropriate to require. Even if the Board itself, at the time of the public meeting, had an adequate basis to assess the impact of the proposal on the factors listed in s. 12.0(3), there is no serious suggestion that the public had that basis. It was only at the later meeting, in September 2005, that representatives of the Board and the Water Park presented to the public the same conceptual or overview reports the Board had received privately from the Water Park before the January public meeting. Thus, even if s. 12.0 does not require, in the assessments and reports, the detail found in those which were eventually produced and made public, the fact remains that at the January public meeting, before the Park Plan amendment, the public had no information that could reasonably satisfy the requirements of s. 12.0(3).

[27] The Board and the Water Park submit that nothing in s. 12.0 required the Board to make public the Water Park’s reports -- such as they were -- before the public meeting; rather it was sufficient that the Board, having been informed in private meetings about the various potential effects of the proposal before the public meeting, was in a position to explain those effects to the public at the meeting, and to answer questions from members of the public.

[28] This amounts to a submission that the requirements of s. 12.0 may be met where a developer reports to the Board on the potential effects of the development in the listed area – and may do so in conceptual overview only – and the Board then holds a public meeting, whether or not the Board disseminates, before or at the meeting, the information it received from the developer.

[29] In my respectful view, this approach to s. 12.0 is unduly literal, and overlooks the stated purpose and policy of the Park Plan, to involve the public in decisions concerning development and land use in the park. This policy is explicit, fundamental, and directly related to the mandatory process for the review of new development proposals and amendments of the Park Plan, such as the proposal to expand the water park. It appears, for example, in this excerpt from the Park Plan:

4.2 Effect of the Plan

…

… In adopting the Cultus Lake Park Plan, the Park Board is establishing an open process, which involves the public, for the adoption of new bylaws and amendment of existing bylaws, and for the review of all new development proposals and Board initiatives affecting land use in the Park. By Board policy, new development proposals must comply with the policies and objectives of the Park plan, and all new bylaws and amendments to existing building, works and services, specified area, and other bylaws, shall comply with the policies and objectives of the Park plan. [emphasis added]

[30] An “open process, which involves the public” has little utility if the public has no information with which to participate. A public meeting, as required by s. 12.0, offers little opportunity for meaningful involvement if the public is not given information regarding key matters, as identified in s. 12.0(3), with which to assess the proposal in issue.

[31] No meaningful information about the nature or scope of the expansion or of its potential effects was published before the meeting. At the meeting, there was no specific reference to the potential effects of the development in the areas listed in s. 12.0. It was not sufficient for the Board to be available to answer questions from the public, because members of the public lacked the information necessary for them to appreciate what they should ask.

[32] The Park Plan, in s. 12.0, sets out very few pre-conditions to its amendment. If it contemplated that the public meeting would proceed without the benefit of the required assessments and reports, s. 12.0 would not have expressly required those assessments and reports “prior to” the public meeting.

[33] The Park Plan amendment on February 9, 2005 violated the requirements of s. 12.0 of the Park Plan, because the public was not provided, before or at the public meeting which preceded the amendment, with meaningful information concerning the listed areas of potential effect of the development, as s. 12.0(3) requires.

2. WAS THE PARK PLAN AMENDMENT NECESSARY FOR THE EXPANSION?

[34] The Board and the Water Park submit that any violation of s. 12.0 in the process that led to the Park Plan amendment was immaterial, because amendment of the Park Plan to permit the expansion was unnecessary. The amendment changed the designation of the lands required for the water park expansion from “Village Centre” to “Commercial”. However, the designation “Village Centre” permits uses which, the Board and the Water Park argue, would have allowed for the expansion in any event:

8.0 VILLAGE CENTRE AREA

…

Land Use

…

2. The Village Centre Area shall be used only for commercial, institutional and public recreation use, and for public utilities.

[35] The existing water park and most of the lands required for the expansion fall within the area designated Village Centre. The Board and the Water Park submit that, like the existing water park, the expansion is a “commercial … use”, that falls properly within the scope of permissible Village Centre uses, as described in s. 8.0(2)

[36] The difficulty with this submission is that it reads s. 8.0(2) in isolation from its full context in the Park Plan.

[37] The Park Plan as a whole makes clear its fundamental focus on potential changes to the existing use of the park. Thus, in its portions concerned with land use, the Park Plan proceeds from a description (with corresponding land use designations) of the existing uses of the park, and requires that new development conform to the requirements of the existing uses, such as by supporting or servicing those existing uses. See, for example, the description in s. 8.0 of the Village Centre Area as including “… the existing commercial and institutional uses fronting on [street references]” and the discussion of land use policy in s. 8.0, which begins with the following:

1. New commercial or institutional development may be considered in areas designated commercial within the village centre area in the plan, to provide basic services and support for the existing level of population and businesses. [emphasis added]

[38] Set against such references in s. 8.0 to the existing uses of Village Centre lands are repeated references in the Park Plan to the need for careful and public review of “any major development proposal”. Any such extensive new use must undergo scrutiny as a “major development proposal” according to s. 12.0.

[39] The water park expansion within the Village Centre Area was a “major development proposal” outside the scope of the water park’s existing commercial use of its lands. The Board itself must have reached the same conclusion, when, contrary to its present position, it determined that expansion of the Water Park would require re-designation of the necessary lands through a Park Plan amendment.

[40] The water park expansion was a “major development proposal” and, as such, not a permitted use of the Village Centre Area.

[41] Accordingly, the Park Plan amendment was a necessary step to allow for the expansion.

3. IS RELIEF AVAILABLE IN RESPECT OF THE BOARD’S VIOLATION OF ITS OWN PROCEDURAL BY-LAW?

[42] It is common ground that the Park Plan is a validly enacted by-law of the Board, which falls squarely within the Board’s by-law-making authority in s. 12 of the Cultus Lake Act, and its general responsibility, described in s. 3 of the Act, for the “regulation, management, maintenance, and improvement” of the park, as also elaborated in s. 14:

14. The Board shall have the power to: --

(f) To construct, operate, and maintain in the park such improvements, buildings, equipment, facilities, conveniences, amusements, and businesses as the Board considers conducive to the more convenient use of the park by the public and to make charges in respect thereof.

[43] The question is whether the Board’s breach of s. 12.0, a by-law of its own making, provides a basis for relief.

[44] The respondents submit that it does not, because there is no statutory requirement that the Board follow the process described in s. 12.0, or, indeed, any particular process in its rezoning decisions. The Park Plan, including the amendment process in s. 12.0, is a by-law which the Board has adopted for its own use. It is not required by the Cultus Lake Park Act or by any other statute.

[45] The respondents submit that breach of a local government’s internal procedures will not render the decision in question ultra vires or otherwise support relief, unless the breached procedure is grounded in statute. They rely on the following authorities: Brentwood Lakes Golf Course Ltd. v. Central Saanich (District) (1991), 6 M.P.L.R. (2d) 1, aff’d 76 B.C.L.R. (2d) 292 (B.C.S.C.); Pollard v. Surrey (District) (1992), 7 M.P.L.R. 213 (B.C.S.C.); Silverado Land Corp. v. Courtney (City), 2000 BCSC 1667; and Canadian Pacific Railway Co. v. Vancouver (City), 2004 BCCA 192 at ¶104; aff’d Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5. The relevant analysis in Silverado relied in part on Botterill v. Cranbrook (City), 2000 BCSC 1225, and, in turn, was recently applied in Hibder v. Buckley-Nechako (Regional District), 2006 BCSC 789 at ¶44-45.

[46] The petitioners submit that relief may be granted in respect of a decision that violates any valid and binding law, whether in a statute or in a by-law. They rely mainly on Manufacturers Life Insurance Co. v. Burnaby (District) (1987), 13 B.C.L.R. (2d) 166 (S.C.), where Spencer J. quashed a municipal resolution because of its failure to comply with the District’s procedural by-law, reasoning that procedural rules found in by-laws carry the same legal weight as those found in a statute (at 173):

a by-law to a municipal corporation is the equivalent of an Act to Parliament.

Spencer J.’s reasoning was adopted, although to a different result, in Manning Estate v. Delta (1992), 14 M.P.L.R. (2d) 174 (B.C.S.C.).

[47] It is unnecessary for me to resolve the question whether the court may grant relief in respect of the breach of a non-statutory procedural rule. Even if relief is in law available in respect of the Board’s breach of s. 12.0, I would not grant that relief, as I will explain later in these reasons. However, I would offer the following obiter observations on the present issue.

[48] Although the two lines of authority appear to stand largely at odds, a close review of the individual contexts in which the various judicial comments are made, in my view permits the analysis of Spencer J. in Manufacturers Life to prevail without direct conflict with the authorities on which the respondents rely.

[49] In Manufacturers Life, Spencer J. distinguished numerous authorities, including some on which the respondents here rely, which held that relief is unavailable in respect of breach of a local government’s rules of internal procedure that are not dictated by statute. He noted in particular that: (a) in some of the authorities, the breach in question was of an informal procedural rule, and not of a by-law; (b) in many of the authorities, the determination was made in obiter dicta; and, notably, (c) in most, the non-compliance was trivial (at 173):

Even in cases where the court has said it would not interfere to quash a by-law because of a procedural error, that refusal has been limited to mere technical omissions, not of a substantive nature and not going to the root of the validity of council’s resolution.

[50] In distinguishing the cases before him, Spencer J. noted that one of them, Sailor v. Surrey (District), [1978] B.C.J. No. 543 (S.C.), in obiter, relied on a short passage from Ian Rogers’ text on Municipal Law, The Law of Canadian Municipal Corporations, 2nd ed., looseleaf (Toronto: Thomson Carswell, 1971) at ¶48.22. This extract, which appears today in an almost identical form, stated that “[t]he courts will accordingly not give effect to objections based upon the failure of a council to observe its established procedure, unless there is clear evidence of bad faith or fraudulent intent.” It is this passage that was cited in Sailor for the proposition that courts will not grant relief in respect of breaches of a local government’s own procedural by-laws. In Manufacturers Life Insurance, Spencer J. noted that the authorities to which the learned author of the text referred, like the case authorities cited directly to him, all involved breaches of procedural rules, and not procedural by-laws.

[51] Key to Spencer J.’s reasoning was his distinction between mere technical omissions and defects of a substantive nature that go to the root of a council’s resolution. He quashed the resolution in question because it was made on a second motion for reconsideration, contrary to the by-law’s prohibition of more than one reconsideration, and was thus a substantive irregularity. However, he would not have granted relief in relation to a different procedural irregularity: in what Spencer J. determined to be a purely technical breach, the motion also violated the rule in Robert’s Rules of Order (which the District had adopted in its procedural by-law) that a motion to reconsider may be moved only by one who was previously on the prevailing side of the motion.

[52] While the various authorities supporting the respondents’ position may not be entirely reconciled with Spencer J.’s analysis in Manufacturers Life, any conflict in their approach to the matter may not be as stark or as deeply-rooted as it first appears.

[53] This is in large part because the various bases on which Spencer J. distinguished the authorities before him exist also in respect of these other authorities. Many of these authorities also involved alleged breaches of procedural rules which were not contained in formal by-laws. In most of the authorities, the courts noted that the breaches would have been trivial, had they been established. In almost all of the authorities, the alleged procedural errors were not established, and the courts’ various comments concerning the present issue were therefore obiter dicta.

[54] It seems also that in none of those authorities was Spencer J.’s decision in Manufacturers Life drawn to the court’s attention. Nor is there any indication that counsel in those cases outlined Spencer J’s analysis of the matter, or the points of distinction he identified in the authorities before him.

[55] Were I to resolve the issue, I would incline to the view that a court may grant relief in relation to a local government’s breach of its procedural by-law where the breach is substantive or significant to the purpose of the by-law, and is not technical or trivial. For the reasons given earlier, I would conclude that the Board’s breach of s. 12.0 was a substantive breach in relation to which relief may properly be granted, if, as will be discussed below, the court exercises its discretion to do so.

4. WAS THE BY-LAW AMENDMENT TOO VAGUE TO BE VALID?

[56] The petitioners contend also that the Park Plan amendment is invalid for vagueness and uncertainty, because it fails to adequately specify the boundaries or area of the re-designated area. As stated in Arnett v. Ottawa (City), [1965] O.J. No. 528 (C.A.) at ¶10-11, a zoning by-law placing restrictions on the use of land “must be defined with a degree of accuracy and exactness which will enable the boundaries and limits thereof to be ascertained without any reasonable doubt”.

[57] There is merit to this submission, in that the Park Plan amendment by its own terms re-designated a “portion” of the Village Centre lands, without further identifying the portion except by way of a map marked roughly by hand at the public meeting concerning the amendment.

[58] However, this imprecise approach to identifying the lands in question is consistent with the approach of the Park Plan as a whole to the matter of zoning and land use. From its inception, the Park Plan set out general concepts for the use of different geographic areas of the park; it did not purport to delineate the particular areas with precision. Indeed the maps or diagrams attached to the plan to describe the land use areas are each titled “Plan Concept”.

[59] I agree with the Board that a member of the community who refers to the Plan Concept associated with the February 2005 amendment can reasonably determine the location of the areas in question, by referring to the depicted landmarks, such as roads, park boundaries, and facilities. Even though some ambiguity may remain, its effect would be insufficient to support the grant of relief the petitioners now seek.

5. DID THE BOARD ACT WITHOUT PROCEDURAL FAIRNESS?

[60] It is common ground that the Board was bound by the requirements of procedural fairness. The dispute concerns, essentially, whether the Board gave the public sufficient notice and information, and allowed for sufficient public comment, to satisfy those requirements.

[61] The petitioners submit that the Board violated the requirements of procedural fairness through most of the process that culminated in final approval of the expansion. The particular steps and decisions they challenge are described earlier in these reasons. Some of the defects in procedural fairness are alleged to relate generally to the entire process; others are alleged in relation to specific steps or decisions.

[62] In the main, the petitioners contend that the public had no meaningful opportunity to consider and comment on the expansion proposal, because notice of at least the first public meeting (in January 2005) was vague and possibly inaccurate as to the geographic area to be affected by the Park Plan amendment and the expansion, and because the Board provided little information about the proposal or its potential effects until the second public meeting (in September 2005), and did not provide members of the public with sufficient opportunity to consider the proposal and provide their comments.

[63] Procedural fairness requires that administrative decisions be made “using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context”: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R 817 at ¶22. The requirements that a particular administrative body must observe will vary with the particular statutory scheme and the rights affected by the administrative decision in question. The Supreme Court of Canada offered a useful set of factors to help expose the content of the duty of procedural fairness, in a given situation: Baker (at ¶22-27) and Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5 at ¶39). These factors include:

· the nature of the decision, and the process followed in making it

· the nature of the statutory scheme, and the terms of the statute under which the administrative body operates

· the importance of the decision to the individual or individuals affected

· the legitimate expectations of the person or people challenging the decision, and

· the administrative body’s own choice of procedures, particularly where the statute leaves to the administrative body the ability to choose its own procedure, or where that body has expertise in the choice of appropriate procedures.

[64] It is common ground that the Board had a duty to provide those affected by its decisions “the opportunity to put forward their views and evidence, and have them considered by the decision-maker”: Canadian Pacific at ¶38. However, the parties dispute the extent of this duty over the course of the process that led to final approval of the expansion, and in particular whether the duty required the Board to give the public specific or detailed information about the expansion proposal and its potential implications. The petitioners contend that the Board had such a duty, but the Board and the Water Park contend that the Board’s duty in this area was satisfied with the Board publicly disclosing and inviting public comment on only the “general concept” of the expansion.

[65] This position of the Board and the Water Park cannot succeed. The factors outlined above point clearly to a weighty duty on the Board to ensure that the public had sufficient information and opportunity to reach and convey considered views about the proposed expansion, and that duty was not met. My conclusion, in this regard, will likely have been apparent from the earlier discussion of the Board’s failure to comply with s. 12.0 of the Park Plan, but I will explain further.

[66] The Cultus Park Lake Act, under which the Board is constituted, confers a broad and general authority on the Board to regulate, manage, maintain, and improve the park. The Act says nothing about the procedure by which the Board is to make land use decisions, and thus leaves this matter for the Board’s own determination. As I discussed earlier, through the Park Plan the Board expressly chose and proclaimed itself committed to a public process for major land use decisions, which it recognized as of key importance to members of the local community.

[67] The petitioners, and other members of the community, thus had legitimate expectations that the public would have a meaningful role in land use decisions. Those expectations were, reasonably, all the stronger in relation to the proposal to expand the water park, which was one of the most significant developments in the history of the park. Legitimate expectations based on explicit commitments in the Board’s own Park Plan are a substantial factor in describing the Board’s duty of procedural fairness.

[68] I accept the Board’s and the Water Park’s submissions that the weight of the duty, and the degree of detail to be given to the public about the proposal, may have been lighter at the earliest stages, when only preliminary or conditional approval for the expansion were in issue. The Board and the Water Park submit that the Board’s public disclosure of the “general concept” of the expansion, and the public meetings to discuss that general concept, thus met the procedural fairness requirements, at least at the early stages of the process, in 2005.

[69] However, even if the duty was lighter in the early stages, the duty was not met, because the Board undermined the utility of the public meeting the Park Plan required it to hold.

[70] This in large part followed from the fact that the Board failed before the January 2005 public meeting to give the public information about the potential effects of the expansion, and also allowed little if any meaningful opportunity for the public to comment on anything it learned at the meeting, before it amended the Park Plan to allow for the expansion.

[71] The notice of that January 2005 meeting advised simply of possible re-designation, as Commercial, of a “portion of the Village Centre” to allow for “a possible expansion of the Water Park”. While this was, on a literal reading, accurate, it did little to alert the public to the magnitude and significance of the expansion proposal, and it provided no detail as to what was under contemplation or what consequences might follow. Any meaningful information about the proposal before the Park Plan amendment must have come, if it came at all, at the public meeting itself.

[72] However, if the public meeting was the occasion for the public to learn about the proposal, then – even if the information provided at the meeting was adequate to achieve that purpose, which I doubt – the Board then failed to afford the public an adequate opportunity to comment on what they learned. The approximately two-week interval between the public meeting and the Park Plan amendment cannot have been sufficient to allow the public to consider and comment on the expansion proposal, and the Board to consider those comments. This is not altered by the fact that some individuals spoke against the proposal at the meeting.

[73] The Board also explains that before the January 2005 meeting, it was aware of strong public support for the general concept of expansion of the water park. I understand the Board to suggest by this submission that the proposal for expansion of the water park was sufficiently well-known and supported in the community that potential opponents could reasonably be expected to have formulated their views, and to realize that the public meeting was their opportunity to voice any concerns.

[74] However, the stated sources for the Board’s conclusion do not, in my view, indicate that the proposal, as it was conceived by the Water Park then or later, was either understood or strongly supported by the public. The three stated sources are these: (1) private discussions between Board commissioners and individual park residents, (2) a park use survey, and (3) the work of the Park Use Plan Advisory Committee.

[75] The first source was, by definition, grounded in a non-public process, and was no substitute for the public process outlined in the Park Plan.

[76] The park use survey, the second source, ranked expansion of the water park tied (with three others) for 10th in a list of 25 options for development within the park. Even if that is taken as strong support, which does not appear to be the only interpretation, the support could not be reasonably be taken as unconditional, particularly since the survey described the expansion proposal in only general terms and without reference to any of the likely consequences of an expansion for other aspects of community life.

[77] The third source, the work of the Advisory Committee, merits more detailed consideration, because that committee involved members of the community, in addition to members of the Board, and its mandate included determining compliance with the Park Use Plan and by-laws, suggesting amendments, and reviewing and discussing potential developments in the park. The Board therefore argues that to some extent the Advisory’s Committee’s work provided for public involvement in decisions such as those that related to the expansion proposal, both in receiving information about the proposal and by allowing for the airing of community members’ concerns.

[78] As early as October 2004, the Board referred the Water Park’s expansion proposal to the Advisory Committee, and later that month Mr. Steunenberg made a detailed presentation to the Advisory Committee in which he addressed various of the potential effects of the expansion, of the types listed in s. 12.0 of the Park Plan.

[79] It appears that the Advisory Committee’s meeting was open to the public. However, it was held without notice to the public that the meeting would address a possible expansion of the Water Park, or that Mr. Steunenberg would appear. Nor were these features of the meeting brought to the public’s attention afterwards: Mr. Steunenberg’s appearance and the subject of his presentation are completely absent from the meeting’s minutes. While I do not doubt the evidence that Mr. Steunenberg in fact appeared and made his presentation, or that his presentation had the content he, in his affidavit, describes, the meeting cannot be said to have brought to the public’s attention either the fact of the expansion proposal or its details and potential effects.

[80] Mr. Steunenberg’s presentations at a meeting of the Board on November 10, 2004 are similarly not recorded in the Board’s minutes, and I make the same observations about that fact. That meeting was the last Board meeting before the Board gave first reading to the Park Plan amendment on December 8, 2004.

[81] That the Advisory Committee included members elected from the community does not, in my view, satisfy the Board’s duty of procedural fairness toward the public, despite some submissions otherwise. An elected or appointed body is to be contrasted with the public from which it is drawn. The broader public may legitimately expect that issues likely to be of particular interest or concern will be specifically brought to its attention, so that individual members of the public may determine whether or not they wish to involve themselves in the process relating to those issues.

[82] For these reasons, I conclude that the process to the time of the January 2005 public meeting and the February 9, 2005 Park Plan amendment, fell short of the requirements of procedural fairness.

[83] The question, then, is whether the process that followed, with a second public meeting on September 28, 2005, compensated for the previous failures in procedural fairness, and provided the public with the information it needed, in order to assess the proposal, and with an opportunity to express its views or concerns.

[84] In this regard, the Board emphasizes that, at the September 28, 2005 public meeting, it gave the public all of the information concerning the potential effects of the expansion that the Board had previously considered in camera. The Board also stresses that it considered all of the information and responses it received at the public meeting, before it gave conditional approval to the expansion proposal.

[85] However, it was on the very day of the public meeting, immediately afterwards, that the Board gave that conditional approval. Members of the public who came to the meeting to learn about the expansion and its potential consequences for the community would have had little opportunity to reflect on the information provided at the meeting, or to respond to it with the benefit of further consideration or discussion with others. Community members who were unable to attend the meeting would have had no opportunity to inquire about the information provided at the meeting, and also to submit a considered view.

[86] The Board in its submissions described the September 28, 2005 meeting as “a public information meeting”, and its purpose as “to gain input on the waterpark expansion proposal”. It will be rare that a single meeting can fairly serve as both a public information session, where information about a proposal is provided for the public’s consideration, and a public hearing, where views from members of the public are received. This will be especially the case where the attendant decision is made immediately following the meeting, with no further opportunity for public input.

[87] However, those were not entirely the circumstances of this case. Although the Board gave its conditional approval to the expansion on September 28, 2005, the subject remained open to question and debate for months to come.

[88] Notably, a new Board was elected in November, 2005, and it received and considered numerous petitions and oral and written submissions from the petitioners and others expressing their concerns about the expansion. The petitioner Mr. Coton and others spoke at Board meetings in January, February, and March 2006. A committee called Save Our Green Space, composed of the petitioners and others, met with Board representatives on January 23, 2006. The Board responded in writing to numerous questions about the expansion, submitted by the petitioners and other members of the community. There is no evidence that the Board declined to receive or consider any further questions or expressions of concern that members of the public may have wished to convey.

[89] Not until later, in 2007, did the Board give final approval to the expansion. That decision was thus made after two public meetings, of which at least the second, in September 2005, provided considerable information to the public, and a period of more than a year during which the Board received and responded to questions and comments from the public. I therefore cannot conclude that the Board gave its final approval to the expansion without allowing for meaningful public input.

[90] The petitioners submit that the Board proceeded without procedural fairness failing to make public, until after it gave final approval to the expansion, the detailed assessments and reports the developer produced between November 2005 and December 2006. It is unclear from the evidence whether the Board made these reports public in March 2007 or, rather, May 2007; also, it is not clear whether the Board’s final approval of the expansion took place on a particular date or, rather, over a period of time as a result of the Water Park’s satisfaction, through the detailed reports and assessments, of the Board’s various concerns and the conditions of approval. However, there is no serious suggestion that the petitioners or the public had an opportunity to review or respond to the detailed reports and assessments before the expansion proposal had the Board’s final approval.

[91] No reason is offered why the Board did not make the reports and assessments available to the public.

[92] In reaching my earlier conclusion that the Board violated s. 12.0 of the Park Plan by failing to provide the public with any meaningful information about the potential effects of the expansion, in the areas listed in s. 12.0(3), I did not find it necessary to determine whether s. 12.0 requires the production of reports and assessments with the same degree of detail as those that were ultimately prepared, because even the limited, informal reports to the Board itself were not shared with the public.

[93] Nor do I find it useful to determine, in the present context, whether by failing to make public, earlier than it did, the detailed reports and assessments it eventually received, the Board breached its duty of procedural fairness. That is largely because I am not persuaded that the matters disclosed by those reports and assessments could have had any real effect on the Board’s decisions.

[94] The detailed reports and assessments, and discussion as a result, exposed three areas of concerns to the petitioners, relating to (a) the need for a traffic roundabout to handle increased traffic, (b) the Water Park’s stated intention to install a chain link fence, and (c) the relocation of the septic standby field to a green space area. Even the most significant of these, the relocation of the septic standby field, is in my view insufficient to support the relief the petitioners seek.

[95] The additional lands leased for the expansion included an area used as a septic standby field for Cultus Lake Park. The original plans for the expansion would have located a parking area above that septic standby field; however, in April 2006, the Ministry of the Environment advised that this would cause a violation of the applicable sewer permit. The Water Park’s engineers then, in September 2006, proposed that the septic standby field be relocated to an area outside the expanded water park, the Board agreed, and, in early November 2006, the Fraser Valley Regional District approved the new location.

[96] The petitioners object that the Board did not, until May 2007, disclose to the petitioners that this decision had been finalized, and that it has yet to announce the decision to the general public. They contend that the relocation to an area that many community members value as “conservation” lands, is precisely the type of potential effect required, by s 12.0 of the Park Plan, to be identified and disclosed to the public at an early stage of the public process. The neglected requirements of s. 12.0 underscore the lack of procedural fairness in both the decision to move the septic standby field to the conversation area, and more generally in the process that allowed for the expansion.

[97] I have considerable sympathy for these submissions, but I am unable to conclude, on the evidence, that the relocation of the septic standby field is of sufficient significance to the community to support the discretionary relief the petitioners seek. The petitioners identify several potentially adverse consequences of relocation, but, by my assessment of the evidence, those consequences are relatively minor and could be adequately addressed by a Board minded to do so. Moreover, on the available evidence, it is unlikely that a septic field will ever need to be constructed on the relocated standby site.

[98] The Board failed in its duty of procedural fairness toward the public in the early stages of the process that led to the expansion. However, efforts at the later stage, between September 2005 and final approval for the expansion in early 2007, largely compensated for the earlier failure, because during that period the public had considerable information about the proposal and had many opportunities to ask questions and express views. The Board’s failure to publicly disclose the detailed technical reports required of the developer as conditions of approval likely breached the duty of procedural fairness, but the consequences of that breach were relatively minor and would not support relief.

6. SHOULD RELIEF BE GRANTED?

[99] The petitioners have established that the Board violated the requirements of s. 12.0 of the Park Plan. They have also established breaches of the Board’s duty of procedural fairness; however, those have largely been cured, or are relatively minor in their effect.

[100] It is common ground that the court has discretion to decline the relief sought, as the Judicial Review Procedure Act in s. 8(1) expressly recognizes:

8(1) If, in a proceeding referred to in section 2, the court had, before February 1, 1977, a discretion to refuse to grant relief on any ground, the court has the same discretion to refuse to grant relief on the same ground.

[101] The Board and the Water Park submit that several factors support the exercise of discretion to decline relief, notably the petitioners’ delay in bringing their application, and the consequent substantial prejudice or hardship that relief would occasion, were it now to be granted while construction is well under way.

[102] In Carpenter v. Vancouver Police Board (1986), 9 B.C.L.R. (2d) 99 (C.A.) at 125, McLachlin J.A. (as she then was) emphasized that delay alone is insufficient to permit the court to refuse a remedy; what must be shown is unreasonable delay. Moreover, unreasonable delay will not preclude relief unless it is shown to have caused the substantial prejudice or hardship to which s. 11 of the Judicial Review Procedure Act refers (at 125). Section 11, in its current iteration, provides as follows:

11 An application for judicial review is not barred by passage of time unless

(a) an enactment otherwise provides, and

(b) the court considers that substantial prejudice or hardship will result to any other person affected by reason of delay.

[103] In Turnagain Holdings Ltd. v. British Columbia (Environmental Appeal Board), 2002 BCCA 564 at ¶18, Madam Justice Huddart explained that a court hearing an application for judicial review is thus to consider a petitioner’s delay in a two-step process:

The first step is to determine whether the petitioner’s delay is unreasonable. A finding of unreasonable delay permits the court to refuse a remedy under the Judicial Review Procedure Act. At this step, the inquiry focuses on the petitioner’s conduct and the reasons for the delay. At the second step, the judge must consider whether the delay resulted in substantial prejudice to the respondent, consider the prejudice to the petitioner if the relief is not granted, the conduct of the respondent, and all other relevant factors.

[104] In MacLean v. University of British Columbia Appeal Board (1993), 87 B.C.L.R. (2d) 238 (C.A.) at ¶16,, to which Huddart J.A. in Turnagain referred, Mr. Justice Lambert concluded that the chambers judge had erred in dismissing a petition, for delay, on a preliminary motion heard in isolation from the merits of the application:

In my opinion, the question of whether delays should affect the outcome of a Judicial Review Application must be made in conjunction with the merits of the Judicial Review Application itself. It is only when those merits are weighed and the prejudice to both sides has been weighed that it is possible for the chambers judge to exercise the principled and guided discretion that is conferred on a chambers judge in relation to granting a remedy under the Judicial Review Procedure Act.

[105] It follows from these authorities that the reasonableness, or otherwise, of a petitioner’s delay in seeking relief must be assessed in light of all the circumstances, including the fact that prejudice or hardship to others may increase with delay in the bringing and hearing of a petition.

[106] The petition was filed on June 25, 2007, some 2½ years after the Park Plan amendment that proceeded, as discussed above, in violation of s. 12.0 of the Park Plan, and almost two years after conditional approval for the expansion followed from the second, more informative public meeting.

[107] The petitioners explain that they were unable to understand the nature and potential effects of the expansion until a much later stage in the process, because of the Board’s failure, until the spring of 2007, to provide copies of the detailed assessments and reports that could have been produced much earlier. Thus, for example, only through independent discussions with the Fraser Valley Regional District in the fall of 2006 did the petitioners learn that the expansion would likely require re-location of the community’s septic standby field.

[108] However, the petitioners – or some of them – were aware at a much earlier time of many of the issues which underlie their present petition. Mr. Coton wrote at length to the Board in December 2005, identifying many of the matters on which the petition is now founded. His letter included the following:

I am actively part of a group of concerned citizens who have come together to save [a green space (the Public Recreation Area) that would be affected by the expansion]. … We are trying to determine if the correct procedures regarding public notices, public information meetings, and full disclosure of intent were followed as required in the Cultus Lake Park Plan (1997), as many Cultus Lake residents were not aware of this proposed expansion until notice of the final public hearing was issued around mid September.

It was in that public notice that the annexation of the whole Public Recreation Area was declared. Prior to that notice, there was no indication of the specific parcel of land being considered. Even in the Park Board Meeting minutes, the expansion site was referred to as “the area required”, and in the by-law amendment the site was described as “a portion of the Village Centre”. The vague representations of the land being considered for the Water Park expansion meant that no one was aware of the plan to sacrifice the Public Recreation Area.

…

Surely, full disclosure is part of the public notification process as dictated by the Cultus Lake Park Plan (1977). It would seem that the public notification process was flawed and is thus open for a legal challenge.

…

[109] These passages and others clearly indicate that the petitioners were, by December 2005, alive to the key issues that underlie their petition. Relative to those issues, the issues that emerged from the detailed technical reports that the petitioners first saw in the spring of 2007 were minor.

[110] The petitioners submit that had they sought relief at or shortly after the time of Mr. Coton’s letter, they would have faced the response that their application was premature: to that point, the Board had amended the Park Plan by-law and had given conditional approval to the expansion, but it did not give final approval to the expansion until February 2007.

[111] Whether or not that supposition is correct, it does not answer the difficulty that the petition was not filed until June 2007, several months after construction of the expansion began in February 2007, and was not heard until January 2008. There is no suggestion that the petitioners were unaware that construction was underway throughout that time, and there is no suggestion that the petitioners had difficulty arranging for the petition to be heard.

[112] Furthermore, under the Board’s conditions for the expansion, the Water Park is required to adhere to construction deadlines, and to complete the expansion by December 31, 2009. The Water Park thus had no real alternative but to start construction when it did, and to continue despite the filing and hearing of the petition. The petitioners were not necessarily aware of the deadlines for interim phases of the construction, but they were aware of the December 31, 2009 deadline for completion, which is an express term of the August 2006 lease. The petitioner Mr. Coton deposes that he saw a copy of the lease obtained, from the Board, in the fall of 2006 by the Save the Green Space Group.

[113] It is true that both the defects, discussed above, in the process that allowed for the expansion, and the timeline by which the expansion is to proceed, were of the Board’s, and not the petitioners’ making. There are situations where, at law, it is not the responsibility of the petitioner to seek relief at an early stage in relation to defective proceedings initiated by the respondent. Such was the case in Carpenter, where the court described the petitioner’s position (in relation to defective proceedings against him brought by the City) as similar to that of a defendant served with a writ disclosing no cause of action: the defendant has no responsibility to tell the plaintiff to amend (Carpenter at 124-5).

[114] Here, however, the petitioners were not immediate parties to the process which allowed for the water park expansion. Until their petition was filed, the Board and the Water Park had no reason to do other than proceed according to the process on which they were embarked, as they did.

[115] If the Board is effectively enjoined from allowing the expansion to proceed, the Board would lose a significant source of revenue, and the Water Park would suffer very considerable financial loss. Since August 2006, the Water Park has been making lease payments on the new lease of $5,845 per month. When the evidence was filed, the Water Park had also paid construction costs of over one million dollars, and expected to pay another $1.9 million by the end of May 2008, and a further $3.7 million by the end of 2009. The Water Park’s total investment in the expansion is thus expected to be in excess of $6 million dollars by the end of 2009.

[116] The Water Park notes that, with the deadline of December 2009 for completion of the expansion, it has had no alternative except to continue the construction that began in February 2007. Also, it must finance the expansion in phases, with revenue from each completed phase financing the next phase.

[117] At least in the later stages of the process, the Board invited public input and responded to public concerns. It has ensured that the Water Park construct and operate its expanded facilities on the basis of sound technical advice, and that it address, at its own cost and to the Board’s satisfaction, the numerous potential effects of the expansion. There is every indication that the Water Park has been respectful of the community.

[118] At this stage, any impact on the petitioners of the procedural deficiencies is not significant, and has resulted in no significant prejudice to them.

[119] The balance of convenience and fairness to all parties thus indicates that the court’s discretion should be exercised against granting relief.

CONCLUSION

[120] The petition is dismissed.

“H. Holmes, J.”
The Honourable Madam Justice H. Holmes

Citation:	*Coton v. Cultus Lake Park Board,*
	2008 BCSC 834