COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

C.P.R. v. Vancouver (City),

 

2004 BCCA 192

Date: 20040407


Docket: CA30277; CA30357

Between:

Canadian Pacific Railway Company

Respondent
(Petitioner)
(Appellant on Cross Appeal)

And

City of Vancouver

Appellant
(Respondent)
(Respondent on Cross Appeal)

 


Before:

The Honourable Mr. Justice Esson

The Honourable Madam Justice Southin

The Honourable Mr. Justice Donald

 

G.K. Macintosh, Q.C.

S.B. Horne

 

Counsel for the Appellant Respondent on Cross Appeal

 

 

P. Kenward

Counsel for the Respondent

Appellant on Cross-Appeal

 

Place and Date of Hearing:

Vancouver, British Columbia

December 15-17, 2003

Place and Date of Judgment:

Vancouver, British Columbia

April 7, 2004

 

Written Reasons by:

The Honourable Mr. Justice Esson

Concurred in by:

The Honourable Mr. Justice Donald

Concurring reasons by:

The Honourable Madam Justice Southin (Page 57, para. 114)


Reasons for Judgment of the Honourable Mr. Justice Esson:

[1]            I will refer to the parties as “the City” and “CPR”.  The City appeals from the order of Madam Justice Brown setting aside the City’s Arbutus Corridor Official Development Plan Bylaw (“AC ODP Bylaw”) as an invalid exercise of its powers under the Vancouver Charter.  The neutral citation for the reasons is 2002 BCSC 1507.  They are reported at (2002) 33 M.P.L.R. (3d) 214, (2002) 47 Admin. L.R. (3d) 56, and can be found on QuickLaw at [2002] B.C.J. No. 2451.

[2]            The operative provisions of the AC ODP Bylaw enacted on July 21, 2000 are:

Section 2 Designations

2.1   Designations for the Arbutus Corridor
This plan designates all of the land in the Arbutus Corridor for use only as a public thoroughfare for the purposes only of:

(a)   transportation, including without limitation:

(i)   rail;

(ii)  transit; and

(iii)  cyclist paths

but excluding:

(iv)  motor vehicles except on City streets crossing the Arbutus Corridor; and

(v)   any grade-separated rapid transit system elevated, in whole or in part, above the surface of the ground, of which one type is the rapid transit system known as “SkyTrain” currently in use in the Lower Mainland;

(b)   greenways, including without limitation:

(i)   pedestrian paths, including without limitation urban walks, environmental demonstration trails, heritage walks and nature trails; and

(ii)  cyclist paths.

BACKGROUND

[3]            The land referred to as the Arbutus Corridor is CPR’s rail line which runs from the False Creek area on the north to Marpole on the south.  It consists of some 45 acres of land having a length of about 6 miles and, for the most part, a width of 50 or 66 feet with some short lengths having a width of 100 feet.

[4]            The land has been beneficially owned by CPR since February 1886 and thus prior to the incorporation of the City in June of that year.  It was part of the 6,000 acre block of land granted to CPR by the Crown provincial as consideration for CPR’s undertaking to extend its main line from the original designated terminus at Port Moody to Coal Harbour.

[5]            The rail line was built in 1902 by CPR’s subsidiary, the Vancouver and Lulu Island Railway Company (“V and LI”) as part of a line running from the south shore of False Creek in Vancouver to Steveston on the south arm of the Fraser River.  For those who may wonder how the present municipal area of Richmond came to bear the name “Lulu”, the answer is to be found in the valuable work of G.P.V. & H.B. Akrigg, 1001 British Columbia Place Names:

Named by Colonel Moody in 1862 after Miss Lulu Sweet, a young actress in the first theatrical company to visit British Columbia.

 

[6]            The history of the line is summarized in the reasons for judgment of this court in Canada (Attorney General) v. Canadian Pacific Ltd. 2 R.P.R. (4th) 249.  I quote ¶69-73:

[69]  It appears from internal correspondence written about 1900 that the trestle built in 1886 across False Creek failed soon after construction and that the line across the reserve and running west was dormant for a good many years. In a letter dated January 17, 1900 from Mr. Abbott to Mr. Drinkwater discussing CPR’s intentions to build a railway from Vancouver to Lulu Island, Mr. Abbott said:

In connection with this line: I have always thought it would be worth the Company’s while to re-open the old line to the Western Boundary of their property on English Bay, lay out lots at that point, and run a regular tram service which could be done in connection with the City tram service and, by this means I think a sufficient number of lots could be sold to more than pay for the construction of the bridge. This would also serve to open up this section of the Company’s land which is unprofitable at present.

 

[70]  That letter includes discussion of the desirability of building a new bridge. By that time, detailed planning had begun for the construction of the V & LI which went into operation in 1902. That company had been incorporated in 1890 as a Provincial corporation. It seems that the shareholders and directors were, from the beginning, nominees of CPR but, for a time, an effort was made to keep the connection secret in the hope of persuading landowners along the proposed line to provide benefits. By 1900, when active planning began, the company was openly a subsidiary of CPR.

[71]  By 1902, a new trestle had been built across False Creek and the railway line had been built from the trestle, running in a generally southern direction to Marpole thence on a bridge across the north arm of the Fraser River and on to Steveston which was then a thriving town of some size, being an important location in relation to the salmon fishing industry. After crossing False Creek on the trestle, the line passed through the Indian reserve on the two curving lines shown in the plan annexed hereto. Those two curving lines and the land lying between them comprised what later became Block I, and, along with the straight line across the reserve (Lot J), became known as the Kitsilano Wye.

[72]  In 1902, before operation was begun, the V & LI was declared a work for the general advantage of Canada and thus became subject to federal regulation. In addition to the line to Steveston, the V & LI had a branch line which ran to the east along the south shore of False Creek to a point near Main Street and 6th Avenue where there was link with the Great Northern Railway. That branch, known as the False Creek Branch, existed primarily to serve the industries which developed along the south shore.

[73]  From 1902 to 1905 V & LI operated one or two mixed trains a day from the main CPR terminal at the foot of Granville Street to Steveston Street to Steveston and return. However, in 1905 the V & LI line, including the False Creek branch, was leased to the B.C. Electric Railway (BCER) which, for the next 50 years, operated a fast and frequent “interurban” service on the line from False Creek to Steveston and also provided freight service with electric locomotives on that line and the False Creek branch. Passenger service ended in the mid-1950’s but BCER and its successor, B.C. Hydro, continued to operate the freight service until 1985. We are told by Mr. Gouge that CPR always retained running rights over the V & LI line. The V & LI Corporation was dissolved in 1954 and its assets were transferred to CPR.

[7]            That litigation dealt with two parcels of land totalling about 10 acres which had been part of the Kitsilano or False Creek Indian Reserve which, until 1913, was situated on the south shore of False Creek.  Those parcels had been expropriated by CPR for railway purposes, one in 1886 and the other (which comprised the northernmost three acres of the V and LI line) in 1902.  The issue was whether CPR, having ceased to use the land for railway purposes, could retain title to it.  In respect of each parcel, it was held that the restriction on alienation in the Railway Act required CPR to return the land to Canada for the benefit of the Indian Band.  No such issue arises here.

[8]            By 1985, when CPR resumed operation of the line, the amount of traffic was low.  It continued to decline to the point where, in 1999, CPR initiated formal abandonment proceedings under the Canada Transportation Act.

[9]            By 1986, the City and other levels of government had recognized that the line was approaching the end of its useful life for CPR’s rail operations and that the Corridor, which runs from the southern edge of downtown Vancouver to the Fraser River, was potentially an asset of unique importance for the public purposes of providing transportation.

[10]        By the 1990’s, the public bodies having an interest in development of the corridor for public purposes included the provincial government, its transportation authority (TransLink) and the Greater Vancouver Regional District (GVRD).  There was wide support for the principle of acquiring the corridor for public purposes but no consensus as to the specific uses to which it would be put or how the acquisition would be funded.

[11]        In 1999, CPR took extensive steps to prepare to redevelop under existing zoning as soon as abandonment was completed.  It put forward detailed proposals for various residential and commercial uses.  Such proposals, had they come to fruition, would of course have destroyed the Corridor as a corridor.  CPR also made clear its view that, if the City or any other public body wished to acquire the line, it was willing to sell at whatever price was determined by agreement or expropriation.  As time went by the CPR, with increasing vigour, expressed its view that it was not tolerable for the City and other governmental bodies to seek to keep the Corridor intact without purchasing it.

[12]        At the time the AC ODP Bylaw was enacted in July 2000, the line was still operating but only to the extent of serving Molson’s Brewery the last remaining customer and the end of that vestige of use was obviously not far away.  The chambers judge summed up the City’s purpose in proceeding with the Bylaw in this passage:

[53]  The City currently has no plans to acquire this property and may not do so for many years to come, if at all. Presumably, if the City’s discussions with any of TransLink, the Federal Government, the Airport Authority, the GVRD or the Olympic Bid Group are fruitful then one or more of these entities may fund acquisition of the property for some form of public transportation. However, at this time, this is a mere hope on the City’s part.

[54]  The City acknowledges that it passed this bylaw to ensure that CPR could not develop its property as it would otherwise be able to do. The City knew that CPR was in the process of decommissioning its rail line. Zoning bylaws permitted certain development upon the CPR property. The City was anxious to ensure that the CPR not develop any portion of its property. The City was unsure of the exact timing for decommissioning the rail line and enacted the AC ODP to ensure that the property was preserved for use only as a public thoroughfare.

[13]        Counsel advised us, as a point of interest, that the last train ran in June 2001, but that the formal abandonment proceedings are not yet complete.  Apparently, there remains a question whether the line should be classified under the Canada Transportation Act as a “spur” rather than a “branch”.  We are told that, if it is a spur, formal approval is not required.  The line remains intact in the sense that the track, signalling devices and other physical components remain in place.

POSITION OF THE CITY

[14]        In enacting the AC ODP Bylaw, the City relied on Part XXVII of the Vancouver Charter headed “Planning and Development”.  Part XXVII, which was added to the Charter in 1959, has its own definition section, part of which reads:

559.  In this Part, or in any by-law made thereunder, unless the context otherwise requires,

“development” means a change in the use of any land or building, or the carrying-out of any construction, engineering or other operations in, on, over, or under land or land covered by water;

“development plan” means a plan or plans for the future physical development of the city or any part thereof, whether expressed in drawings, reports, or otherwise, and whether complete or partial; …

“official development plan” means any development plan, whether complete or partial, which has been adopted under this Part; …

[15]        The City’s case is founded upon ss.561 to 563 which, so far as material, read:

Development plans

561.  (1)   The Council may have development plans prepared or revised from time to time.

(2)   A development plan under this section may

(a)  relate to the whole city, or to any particular area of the city, or to a specific project or projects within the city;

(b)  be altered, added to, or extended;

(c)  designate

(i)  land for streets, lanes and other public thoroughfares, and for the widening of streets, lanes and other public thoroughfares,

(ii) sites for parks, schools and public buildings, and

(iii) areas for special projects, including projects that require development or redevelopment as a whole.

Council powers respecting official development plan

562.(1)     The Council may, by by-law,

(a)  adopt as the official development plan, or as part of the official development plan, any development plan prepared under section 561, or

(b)  revise or amend the official development plan or any part of the official development plan. …

Undertakings, official development plan

563.  (1)   The adoption by Council of a development plan shall not commit the Council to undertake any of the developments shown on the plan.

(2)   The Council shall not authorize, permit, or undertake any development contrary to or at variance with the official development plan.

(3)   It shall be unlawful for any person to commence or undertake any development contrary to or at variance with the official development plan.

[16]        It will be seen that “development plans”, which are provided for in s.561, are essentially statements of intention which do not directly affect the owner’s rights in the real property to which they apply.  Such a plan need have no particular form provided that it is “a plan … for the future physical development of the city or any part thereof”.  The plan may be expressed in “drawings, reports or otherwise, and whether complete or partial”.

[17]        The development plans which together comprise the plan adopted by City Council in the Bylaw are described in the preamble to the Bylaw as:

      (a)   City Plan,

      (b)   Vancouver Transportation Plan, and

      (c)   Vancouver Greenways Plan,

which plans determined the importance of providing corridors for improved rapid transit and opportunities for increased walking and biking as part of the City’s transportation network.

[18]        I do not understand CPR to dispute the proposition that the three plans are development plans within the meaning of s.559 and that they are plans which determine “… the importance of providing corridors for improved rapid transit and opportunities for increased walking and biking as part of the City’s transportation network.”  Those plans are therefore development plans within the meaning of s.561(2)(c).  Nor is it disputed that they relate to the Arbutus Corridor which is, in the words of s.561(2)(a), a “… particular area of the city.”

[19]        It is also beyond dispute that the Bylaw, in the words of s.561(2)(c)(i) designates “land for … public thoroughfares.”

[20]        It follows that, in the words of s.562(1), the Council has “adopted as the Official Development Plan or as part thereof, a development plan prepared under s.561.”  That being so, the consequences are those set out in s.563 which I summarize:

(1)   council is not committed to undertake any of the development shown on the plan;

(2)   the council must not permit any development which conflicts with the AC ODP; and

(3)   no one may commence or undertake any development contrary to the AC ODP.

[21]        The result, if the Bylaw was validly enacted, is that the rights which CPR would otherwise have to proceed with the redevelopment of its land are frozen or sterilized for an indefinite period of time during which the only uses to which it can be put are those which existed at the date of designation which by then had become uneconomic.

[22]        That, from the point of view of CPR, is unfair and unreasonable.  I have no doubt that many right thinking people, not having CPR’s direct interest in the issue, would agree.  But that is not a ground for setting aside the Bylaw.  The court’s jurisdiction to set aside a bylaw is a narrow one.  Section 148 of the Charter reads:

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 in 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.

[23]        CPR has not, either before the chambers judge or in this court, alleged absence of good faith.  It did advance such an allegation at the interlocutory stage and made a strenuous effort to find evidence of bad faith, but to no avail.

[24]        CPR’s primary position at first instance was that the AC ODP Bylaw was validly enacted but that, because it constitutes a “taking” of the land, the court should now order the City to pay compensation as the parties might agree or after expropriation proceedings.  The chambers judge having rejected that submission, CPR’s primary position in this court is that the decision of the chambers judge to the effect that the Bylaw was ultra vires City Council should be sustained.  The primary position taken at first instance is advanced before us by cross-appeal as an alternative position should we find the Bylaw to have been validly enacted.  A final alternative position, with which the chambers judge did not find it necessary to deal, is that the Bylaw was not “duly passed” because of procedural irregularities in connection with the public hearing which preceded the passage of the Bylaw.

[25]        The City relies not only upon s.561(1) to 563 of the Charter but also upon s.569(1) which reads:

569.  (1)   Where a zoning by-law is or has been passed, amended, or repealed under this Part, or where Council or any inspector or official of the city or any board constituted under this Act exercises any of the powers contained in this Part, any property thereby affected shall be deemed as against the city not to have been taken or injuriously affected by reason of the exercise of any such powers or by reason of such zoning and no compensation shall be payable by the city or any inspector or official thereof.      [emphasis added]

[26]        In 1959, when Part XXVII was added to the Charter, that section applied only to zoning bylaws.  It reads:

Property shall not be deemed to be taken or injuriously affected by reason of the passing of a zoning by-law under this Part or by reason of the amendment or repeal of any such by-law.

[27]        The underlined words, which are those applicable to this case, were added by an amendment in 1964.  That amendment indicates a legislative intention to treat Part XXVII differently from other parts of the Charter.  The general provision with respect to injurious affection is s.541, enacted in 1953, which reads:

541.                                      Where real property is injuriously affected by the exercise on the part of the city of any of its powers, the city shall, unless it is otherwise provided in this or some other Act, make due compensation to the owner for any damage necessarily resulting therefrom beyond any advantage which the owner may derive from any work in connection with which the real property is so affected.
                                          [emphasis added]

[28]        In my view, it is clear, that if effect is given to the plain or literal meaning of ss.561 to 563 and 569(1), Council must be found to have acted within its powers when enacting the AC ODP Bylaw and to be under no obligation to compensate CPR for having done so.

[29]        The chambers judge, however, held that it had acted beyond its powers and that the Bylaw must be set aside.  She stated a number of grounds for that conclusion.  In ¶80 of her reasons she said:

[80]  Reading the Vancouver Charter as a whole, I am satisfied in the circumstances before me, where the City proposes to designate a property of an owner for use only as a public park or street, it must acquire that property or reach an agreement with the property owner. That is the effect of ss.289, 563 and 564. To do otherwise, in the circumstances of this case, would deprive the owner of the use and enjoyment of its property, to appropriate it to the public without compensation.

[30]        Insofar as that conclusion rests on s.289 of the Charter, it adopts the position of CPR in this proceeding to the effect that the City exceeded its powers under s.562 by designating the land for public purposes without first having acquired it.  The submission is that s.289(1) requires the City to acquire the real property before, or least contemporaneously with, exercising its powers under s.562 to adopt a designation under s.561(2)(c).

[31]        Section 289(1) appears in Part VIII of the Charter which is headed “Public Works”.  It reads:

289.(1)     Unless otherwise expressly provided, the real property comprised in every street, park, or public square in the city shall be absolutely vested in fee-simple in the city subject only to section 291A of this Act; provided that section 3 of the Highway Act shall not apply to any street, park, or public square aforesaid; provided further, however, that it shall be lawful for the city to acquire from any person rights or easements for street, park, or public square purposes less than the fee-simple, whether on, above, or below the surface of any real property owned by such person.

 

[32]        That section has not changed since it was enacted in the original Charter in 1953.  With all respect, I can see nothing in the language of the statute or the legislative history which would allow effect to be given to CPR’s position based on s.289(1).  It will come into play if and when the property is acquired by the City.  It says nothing as to the manner or point in time at which the City must acquire title to the property, or at which it becomes a street.

[33]        The reliance by the chambers judge on s.563 as providing support for CPR’s position I find, with all respect, somewhat mystifying.  Section 563 contradicts the thesis that the City could enact the Bylaw only after acquiring the property.  Were the City to acquire the property before adopting the designation for public purposes or contemporaneously with the adoption, there would be no remaining subject matter upon which the three subsections of s.563 could operate.

[34]        Nor does s.564, in my view, provide any support for the judge’s conclusion.  It reads as follows:

564.  (1)   Where a project is shown upon an official development plan, the Council may acquire any real property it considers essential to the carrying-out of the project, and in addition acquire other adjacent or neighbouring real property. Such additional real property may include

(a)  the remnants of parcels, portions of which are essential to carrying out the project;

(b)  any lands which may be injuriously affected by the project;

(c)  any lands which, if allowed to be built upon without restriction, might become the site of buildings or structures which would prejudicially affect the full enjoyment of any building forming part of the project or the architectural effect thereof;

(d)  any lands which the Council is of the opinion could be conveniently and profitably resubdivided or rearranged and developed as part of the project.

[35]        That section applies only to “projects” which are referred to in s.561(2)(c)(iii) which is set out in ¶15, supra, and which I repeat here.  It reads:

A development plan under this section may …

(c)  designate …

(iii) areas for special projects, including projects that require development or redevelopment as a whole.

[36]        The subject matter of that provision is entirely separate from that of a designation under s.561(2)(c)(i) which deals with the designation of public thoroughfare.  Section 561(2)(c)(iii) deals only with “projects” and therefore has no direct application to the facts of this case.  Nevertheless, insofar as s.564(1) employs the words “may acquire any real property” which clearly leave it open to the City to decide, at some time in the future from the date of the Bylaw, whether to acquire property, it lends support to the position of the City.

[37]        The chambers judge also had resort to the rule that legislation should not be construed to produce an absurd result.  I quote ¶78-79 of her reasons:

[78]  The City’s interpretation leads to this result: a person may acquire a bare lot in the City of Vancouver which is zoned for residential development and is in every respect appropriate for residential development. Before that development occurs, the  City may pass an official development plan which designates that particular lot as a public park, even though it remains zoned for residential development. Thereafter, the owner of that property may not develop the property in any way other than as a public park. The City need not acquire that property and may never acquire the property because the City is not compelled to undertake any of the developments shown on the plan. The individual has been deprived of all of the benefits of ownership of that land and has only the burden of paying taxes and, presumably, maintaining the property. Should the individual fail to keep the grass cut, the City would be able to cut the grass and charge the individual with the expense of doing so.

[79]  To my mind, this is an absurd result. Legislation should not be interpreted to produce an absurd result.

A related passage is in the first two sentences in ¶81:

[81]  At best, the provisions are ambiguous. This ambiguity is best illustrated by the example discussed above. …

[38]        I do not understand counsel for CPR to seek to support the decision on those grounds.  In any event, I cannot accept that analysis as sound.  There is, of course, precedent for rejecting a particular interpretation of legislation on the ground that it would produce an absurd result but, in my view, “absurdity” in that context cannot be established by reference to a hypothetical set of facts far removed from the facts of the case at bar.

[39]        Without reaching any conclusion on the point, I suggest that “absurdity” as a ground for setting aside the Bylaw might well run afoul of s.148, supra, ¶22, which precludes the court from setting aside a bylaw “on account of the unreasonableness or supposed unreasonableness of its provisions or any of them.”  The Canadian Oxford Dictionary, published in 1998, gives as the first meaning of “absurd”:

1.    (of an idea, suggestion, etc.) wildly unreasonable, illogical or inappropriate …

[40]        I find it unnecessary to reach a final conclusion on that question.

[41]        I return to the facts of the case at bar.  The chambers judge did not suggest that the City’s position and its action in freezing or sterilizing the development of the property is absurd and, in my respectful view, no such finding could reasonably be made.  From the point of view of CPR, the result is unfair.  But, looking at the matter from the point of view of Council, it clearly had substantial reasons, based on its view of what was in the interests of its citizens, to take the action it did.  The Corridor is unique in its size, its location and its potential for being utilized for public purposes.  The redevelopment proposed by CPR would have precluded the land from being used for the purposes favoured by the City, other governments and public bodies and many citizens of the City.  The continuing uncertainty about precise uses and about the all important matter of funding made it impractical in 2000 for the City or any other public body to acquire the Corridor.  It was in that context that Council concluded that it was in the best interests of the City, having regard to its statutory obligations to the Region, to enact a Bylaw which would maintain the status quo and go some way to defining the public uses to which the Corridor should be put.

[42]        Throughout the submissions of CPR and the reasons of the chambers judge, the underlying assumption appears to be that to interfere so radically with the property rights of the owner is unprecedented and so outrageous an abuse of power that it must be concluded that the legislature could not have intended to confer such powers.

[43]        To put the matter in context, I refer to the analysis of Professor Todd in The Law of Expropriation and Compensation in Canada, 2nd ed. (Toronto: Carswell, 1992) in this passage at pp.22-23:

Land Use Controls
Traditionally the property concept is thought of as a bundle of rights of which one of the most important is that of user. At common law this right was virtually unlimited and subject only to the restraints imposed by the law of public and private nuisance. At a later stage in the evolution of property law the use of land might be limited by the terms of restrictive covenants.

Today the principal restrictions on land use arise from the planning and zoning provisions of public authorities. By the imposition, removal or alteration of land use controls a public authority may dramatically increase or decrease the value of land by changing the permitted uses which may be made of it. In such a case, in the absence of express statutory provision to the contrary an owner is not entitled to compensation or any other remedy notwithstanding that subdivision approval or rezoning is refused or development is blocked or frozen pursuant to statutory planning powers in order, for example, to facilitate the future acquisition of the land for public purposes. Ordinarily, in this country, the United States and the United Kingdom, compensation does not follow zoning either up or down … (but) a taker may not, through the device of zoning, depress the value of property as a prelude to compulsory taking of the property for a public purpose. In some jurisdictions, out of an abundance of caution, planning legislation expressly denies the recovery of compensation. …

[44]        Of the five cases cited in support of those statements, four are decisions of the Supreme Court of Canada:

Vancouver v. Simpson [1977] 1 S.C.R. 71;
Soo Mill & Lumber Co. v. Sault Ste. Marie (City) [1975] 2 S.C.R. 78;
Sanbay Development Ltd. v. London (City) [1975] 1 S.C.R. 485; and
Hartel Holdings Co. v. Calgary (City) [1984] S.C.R. 337.

[45]        The authorities cited by Professor Todd provide ample support for his summary of the law.  All of those cases accept that it is a legitimate exercise of municipal powers to give priority to long term planning and development objectives by removing or placing limits on the right of property owners to deal with their property as they wish.

[46]        In the earliest of those cases (Soo Mill & Lumber Co. v. Sault Ste. Marie (City)) the facts as summarized in the headnote were:

The appellant held eight consecutively numbered lots on a plan of subdivision, which were zoned “residential” under the official plan. The permitted uses for the designation normally would have included triplex dwellings, apartment dwellings and multiple attached dwellings, however, notwithstanding the zoning, the property had not been considered ready for development and the suffix “H” had been added to the zoned designation, the result of which was to place the land in a “holding category”. As the property had, by reason of size, nature and location, no practical use save as the site of multiple-family residences the effect of the zoning by-law was to freeze development of the property and to sterilise it in terms of present use. The trial Judge held s.40 of the by-law was ultra vires since it involved a temporary zoning or development freeze for which there was no statutory authority. The Court of Appeal disagreed and held in addition that s.40 was not prohibitory even though in practical terms it prevented any meaningful use of the land.                         [emphasis added]

[47]        Chief Justice Laskin, giving the judgment of the Supreme Court, said at p.83:

I do not call upon any special or novel principle of interpretation in approaching The Planning Act from the viewpoint of giving effect to its purpose. Although the Act contains no directory preamble, the definition of “official plan” in s.1(h) and the elaborate system of approvals and checks which are associated with the adoption of an Official Plan, indicate to me that planning policies reflected in such a Plan should be liberally construed as (in the words of s.1(h)) “designate to secure the health, safety, convenience or welfare of the inhabitants of the area” in which the Plan operates. Implementing by-laws (which by s.19 of the Act must be in conformity with the purposes of the Plan) are hence integrated with it and deserve similar liberal consideration.

[48]        Equally, the planning policies embodied in ss.561-563 of the Charter may be said to deserve liberal consideration.

[49]        Since the publication of Professor Todd’s second edition in 1992, there have been a number of decisions in this province giving effect to the same principles in ways that support the case for the City.  I refer to:

MacMillan Bloedel Ltd. v. Galiano Island Trust Committee (1995), 28 M.P.L.R. (2d) 157; 126 D.L.R. (4th) 449; 63 B.C.A.C. 81; 10 B.C.L.R. (3d) 121; [1995] B.C.J. No. 1763, application for leave to S.C.C. dismissed, [1996] 1 S.C.R. p.viii; [1995] S.C.C.A. No. 439;


Canada Mortgage & Housing Corp. v. North Vancouver (2000), 10 M.P.L.R. (3d) 1; 134 B.C.A.C. 294; 77 B.C.L.R. (3d) 14; 20 Admin. L.R. (3d) 37; [2000] B.C.J. No. 391, 7 W.W.R. 300, application for leave to S.C.C. dismissed, [2000] 2 S.C.R. p.vi; S.C.C.A. No. 200; and

Pacific National Investments v. Victoria (City) (2000), 15 M.P.L.R. (3d) 1; 193 D.L.R. (4th) 385; 263 N.R. 1; 144 B.C.A.C. 203; 83 B.C.L.R. (3d) 207; [2000] 2 S.C.R. 919; S.C.J. No. 64; [2001] 2 W.W.R. 1.

[50]        A common factor in all of these cases is that, as in the case at bar, the existing bylaws or other municipal regulations governing development of property had the effect of removing or at least freezing for a time the land owner’s right to deal with the property in accordance with the bylaws in force to the point of the amendment or other change.  In each case, the change was made in order to give effect to Council’s view of what was needed for proper planning and development.

[51]        Counsel for C.P.R. seeks to distinguish those authorities on the ground that most of them arose out of the use of zoning bylaws to affect the rights of property owners.  The Bylaw here is not a zoning bylaw.  In my view, to the extent that circumstance is relevant, it favours the City’s position.  As Laskin C.J.C. said in the passage quoted supra, ¶45, these are exercises of planning policies and it is because of the importance attached to the planning function that “liberal consideration” must be given to the bylaws which implement those policies.  It may be recalled that s.561 concludes with this rather unusual statutory admonition:

561.5       To the extent that a development plan under this section deals with these matters, it should work towards the purpose and goals referred to in section 849 of the Local Government Act.

[52]        Section 849, so far as it is potentially relevant to the issues here, reads as follows:

849   (1)   The purpose of a regional growth strategy is to promote human settlement that is socially, economically and environmentally healthy and that makes efficient use of public facilities and services, land and other resources.

      (2)   Without limiting subsection (1), to the extent that a regional growth strategy deals with these matters, it should work towards but not be limited to the following:

(a)  avoiding urban sprawl and ensuring that development takes place where adequate facilities exist or can be provided in a timely way, economic and efficient manner;

(b)  settlement patterns that minimize the use of automobile and encourage walking, bicycling and the efficient use of public transit;

(c)  the efficient movement of goods and people while making effective use of transportation and utility corridors;              . . .

 

[53]        Clearly, that section calls for a liberal construction of ss.561-563 and the Bylaw enacted thereunder.

[54]        It remains to consider two other submissions by CPR which have been advanced in support of its submission that the Bylaw is ultra vires the City.

[55]        The first of those points is directed at the words “public thoroughfare” in s.2.1 of the Bylaw which reads:

This plan designates all of the land in the Arbutus Corridor for use only as a public thoroughfare for the purpose only of:

(a)   transportation, including without limitations:

      (i)   rail;

      (ii)  transit; and

      (iii) cyclists paths

[56]        The point was linked to CPR’s submission, based on s.289, that the AC ODP designates the Corridor as a “street”.  In CPR’s factum the point is put this way:

Section 561(2)(c) of the Vancouver Charter says that the City may “designate … land for streets, lanes and other public thoroughfares …”. According to standard ejusdem generis principles of interpretation, “other public thoroughfares” would be of the same class as streets and lanes.

[57]        The factum goes on in ¶37 to make the point that:

Section 2 of the Vancouver Charter indicates that “streets” are necessarily public, and encompasses all “public thoroughfares”. It defines “street” as:

… includes public road, highway, bridge, viaduct, lane, and sidewalk, and any other way normally open to the use of the public, but does not include a private right-of-way on private property.

[58]        The point, as I understand it, is that a “public thoroughfare” cannot apply to any “way” other than that which is embraced in the definition of “street”.

[59]        If CPR’s point is that the Corridor cannot be designated as a “public thoroughfare” because its present use is as a “private right-of-way on private property” I would hold that the point has no relevance.  Clearly, the present status of the Corridor is as a private right-of-way on private property.  The Bylaw in using the term “public thoroughfare” is not concerned with the present use – it is concerned with the uses to which the Corridor may be put in the future.

[60]        If the point intended to be made is that the phrase “public thoroughfare” could not refer to a rail transit system operated by a public body, because such a system would not be of the “same class as streets and lanes”, I do not agree.  I see no reason why, in this context, the phrase “public thoroughfare” could not embrace say a light rail system or, had it not been excluded, an elevated system such as sky train.  If in the future the Corridor is put to such use, the right-of-way would not be “private”.

[61]        The final point raised by CPR is not one which directly throws light on the question whether Council acted within its powers in enacting the AC ODP Bylaw but is one intended to buttress CPR’s submissions to that effect by demonstrating the inconvenient and perhaps absurd consequences which might flow from accepting the City’s interpretation.

[62]        The point arises from two sections of the Charter.  The first is this provision in s.559, the definition section for Part XXVII, which reads:

“building” and “construction” means “building” and “construction” as defined in section 304; …

[63]        The point made by CPR is expressed thus in its factum at ¶28:

Because section 559 defines “development” as including “construction” (and because section 304 in turn defines “construction” as including repair and removal), the section 563(3) prohibition even precludes an owner from repairing or removing any improvements it has.

[64]        This submission is, in my view, an excessively strained one.  The City concedes that CPR, which is still the owner of the land, can continue to carry on upon it any uses which it could have carried on before the Bylaw was enacted.  As I have indicated above at ¶21, CPR is only prohibited from developing the Corridor in a way that is, in the words of s.563(3), “… contrary to or at variance with the official development plan.”  The AC ODP provides for the Corridor to be used in the future for public transportation and greenways.  CPR’s existing improvements are limited to railway track and signalling devices.  In this context, I doubt that repair or removal of these improvements could reasonably be construed as a  “… development contrary to or at variance with the official development plan”. 

[65]        In any event, I am of the view that the point can be disposed of on a narrower ground based on the facts of this case.  Section 304 is the interpretation section for Part IX of the Charter which is headed “Buildings”.  That section reads:

304.  In this Part, unless the context otherwise requires,

“building” includes structures of every kind, excavations in respect of any structure, and everything so attached to a structure as to constitute it real property;

“construction” includes erection, repair, alteration, enlargement, addition, demolition, removal, and excavation.

It does not appear that there are now any buildings upon the land affected by the AC ODP Bylaw.

[66]        Should any such issue arise, it will be appropriate to draw to the attention of any court before which the issue comes that the City has firmly rejected the suggestion that such a result could flow from s.304.

CONCLUSION ON THE CITY’S APPEAL

[67]        For these reasons, I am respectfully of the view that the chambers judge erred in her interpretation of the provisions of the Vancouver Charter and in concluding that Council in enacting the Bylaw of July 21, 2000 exceeded its powers.  I would therefore allow the City’s appeal and set aside the finding that those powers were exceeded.

CROSS-APPEAL

[68]        CPR contends that, if the Bylaw is found to have been validly enacted, it follows that the City has acquired the land and that it should be ordered to pay for it either by way of an agreed amount or through expropriation.

[69]        That submission rests on the theory that s.289(1), properly interpreted, requires the conclusion that the City, by enacting that Bylaw “acquired” the land.  For the reasons stated supra ¶31, I reject that submission.  I also agree with the conclusion of the chambers judge in ¶98 of her reasons that s.569, in providing that any exercise of powers by Council pursuant to Part XXVII cannot be deemed a taking, is conclusive against CPR’s contention.

[70]        I would therefore dismiss the cross-appeal seeking a declaration that the City is required now to pay for the land.

CROSS-APPEAL ON PROCEDURAL GROUNDS

[71]        CPR contends that the Bylaw should be quashed because of defects in the procedure adopted by the City in relation to the public hearing conducted by City Council before the Bylaw was passed at a closed hearing.  The chambers judge, having found the Bylaw to be invalid, did not deal with that issue.  I therefore must set out the facts relating to it in some detail.

[72]        After Council passed the RCS ODP in September 1999, CPR launched a petition challenging the validity of that Bylaw.  On the same day it filed that petition, CPR initiated the process for decommissioning the rail line by placing it on its three year plan for discontinuance.  It did not press forward with the petition, having agreed with the City to proceed “in a cooperative manner in seeking a mutually acceptable outcome.”  At that time, CPR made known to the City its intention to proceed with a consultation process through which it would make public its plans for the land and would seek public reaction to those plans.

[73]        From October 1999 to June 2000, there were some communications between the City and CPR but nothing of substance.  In that period, CPR invested substantial efforts in its public consultation process.

[74]        A major meeting between representatives of the City and CPR was scheduled to be held on June 7, 2000.  At the last minute, the City cancelled the meeting on the ground that several of its representatives had become unavailable.

[75]        On June 7, 2000 Mr. Walsh, CPR’s Vice-President, Real Estate, wrote to the City Manager to express his disappointment at the cancellation and to advise of recent developments.  He indicated that the consultation process was quite close to a conclusion and that a large portion (about 80%) of the public who had taken part in it had expressed a preference for the lands being purchased by a public body for public use, with the City of Vancouver, City of Richmond and TransLink having expressed a preference for transportation use.  He also indicated that CPR would shortly be taking the next step in the discontinuance process which would involve public advertising as required by the Canada Transportation Act.  He concluded by saying that CPR’s intention was “to be cooperative to the extent that we are reasonably able, noting again our often stated objective of receiving fair value for the property in a timely fashion.”

[76]        The City Manager’s response was by a letter dated June 13 advising, in the most terse terms, that City Council intended to consider a report, also dated June 13, “on the Arbutus Corridor”.  Enclosed was a copy of the report which was addressed to City Council and several other City officials from Dr. McAfee, the City’s Director of Planning.  It is a quite detailed eight page document recommending the adoption of the Arbutus Corridor Official Development Plan.  It included a recommendation for a public hearing.  Attached as Appendix A to the report was the proposed wording for the AC ODP which was in the same wording as the Bylaw as enacted except that the designations in clause 2.1(a) did not include the words:

[excluding] … any grade-separated rapid transit system elevated, in whole or in part, above the surface of the ground, of which one type is the rapid transit system known as “SkyTrain currently in use in the Lower Mainland.

That clause was added at the closed meeting at which the Bylaw was finally adopted.

[77]        CPR responded on June 21 by way of a six page letter from Mr. Walsh to the City Manager expressing with understandable warmth CPR’s reaction to this action which he said was “highly prejudicial to the CPR.”  Three pages of the letter were taken up with a demand for production of documents of remarkable breadth.  As that demand is the principal foundation for CPR’s case on procedural irregularities, I will set it out in its entirety:

Discussions
(1)   all documents pertaining to discussions between the City, TransLink, the Greater Vancouver Regional District, the City of Richmond, the Federal Government and/or Provincial Government relating to the Arbutus Corridor, from January 1998 forward;

Regulatory options
(2)   all documents pertaining to the options considered by the City for regulating the Arbutus Corridor, including all documents pertaining to the perceived advantages and disadvantages of each option;

 

(3)   all documents pertaining to actions taken, or that could be taken, by other governmental agencies, to regulate or otherwise impact the corridor;

Acquisition
(4)   all documents pertaining to the City’s consideration of it or anyone else acquiring the corridor, or of acquiring some legal interest in or right of control over the corridor, in whole or in part;

(5)   all documents pertaining to the consideration by others of, or actions undertaken by others in respect of, acquisition;

Alternative corridors
(6)   all documents pertaining to alternative corridors to service south Vancouver, Richmond and the airport for transit purposes, and the relative merits and otherwise of each option;

(7)   all documents pertaining to the City’s assessment of alternative uses for those corridors, including viability and demand for transit use as compared to greenway use;

Options for rail use
(8)   all documents pertaining to the options for rail use in the Arbutus Corridor;

(9)   all documents pertaining to the viability of rail use in the corridor;

Value
(10)  all documents pertaining to the value of the corridor, including any appraisals;

The CPR’s public consultation program
(11)  all documents pertaining to the City’s assessment of the development concept put forward by the CPR as part of its public consultation process;

(12)  all documents pertaining to the CPR’s consultation process itself;

Viability of development
(13)  all documents pertaining to various alternative forms of development within the Corridor;

(14)  all documents pertaining to how the City might respond to such forms of development;

Discontinuance
(15)  all documents pertaining to the City’s consideration of the CPR’s options under the discontinuance process;

(16)  all documents pertaining to the City’s consideration of the CPR’s actions under the discontinuance process;

(17)  all documents pertaining to the City’s intentions, and options, as regards the discontinuance process, including as regards acquisition by it or any other body;

Funds available
(18)  particulars of the amounts of funds available to the City for land acquisition purposes, which have at any stage been contemplated as being available as regards the acquisition of the Arbutus Corridor, including particulars of expenditures made from those funds;

(19)  the particulars of any funding set aside for the Arbutus Corridor;

Policies
(20)  all policies of the City that specifically reference the Arbutus Corridor, and all documents relating to the application of those policies;

Political assessment
(21)  all documents pertaining to the City’s assessment of the public’s reaction, and anticipated reaction, to various corridor alternatives, to the downzoning, and so on;

Advice
(22)  all documents pertaining to advice given to Council regarding statements to be made, and not to be made, to the public and to the CPR regarding the bylaw and regarding the corridor generally.

 

      In responding to the above request, you may exclude all documents generated by the CPR, and all newspaper or press commentaries, except to the extent that they are the subject of margin notes.

[78]        The letter went on to request that the public hearing, which was scheduled to begin Monday, July 10 at 7:30 p.m., be adjourned for at least one month “beyond the date the above information has been provided.”  The City Manager, Ms. Rogers, replied to that letter on June 28 essentially declining to give effect to any of CPR’s requests or demands.

[79]        The essence of the City’s response was in these two paragraphs of the letter of June 28:

Regarding your comments about the imminence of the public hearing, frankly, I expect CPR is well informed about the Corridor at this time, so that you will be in a very reasonable position to participate in the hearing as presently scheduled. CPR has been well aware since at least 1986 of the City’s stated interest in having the Arbutus Corridor preserved as a potential transportation corridor.

                        . . .

The City does not intend to reschedule the public hearing because of your very broad request for document production. Just to remind you, the public hearing is set to commence July 10, 2000 and I confirm the City Clerk has received a copy of your letter of June 21, 2000 and that you are on the speaker’s list for the public hearing. The City does not intend to further respond to your request for documentation prior to the public hearing.

[80]        The public meeting began on the evening of July 10 and continued on July 12, 17 and 18.  The Mayor presided.  At the opening of the hearing, two councillors withdrew on the ground that, because they lived close to the Corridor, they had a potential conflict.  Councillor Puil was present on the first evening but, because he was unable to attend on July 17, he withdrew from further participation.

[81]        The Mayor stated that 128 members of the public had signed up to speak.  The first person to address the meeting was Dr. McAfee, the Director of Planning.  She explained that the City was “acting now” for two reasons.  The first was that the existing zoning north of 16th Avenue permits a variety of uses and that, if development were to take place in that area, that would result in the loss of the continuous Corridor from the Fraser River to False Creek.  The second was that the Bylaw, by opening up a variety of transportation and greenway uses, would give the City some control over the future “processes” and that approval of the Bylaw would set the stage for further discussions about the use of the Corridor.

[82]        The second speaker was Mr. Massil, CPR’s Regional Manager for Real Estate.  His statement was essentially an eloquent and detailed submission making the point that it was grossly unfair to CPR to prevent it from developing the land without being willing to purchase it.  The complaints set out by Mr. Walsh in the correspondence in June were repeated as was the request for an adjournment and production of documents.  Mr. Massil put considerable stress upon the damage to the City’s reputation which would result from treating land owners in so unfair a fashion.  He wound up his prepared remarks by saying:

… The City should not be using its powers inappropriately to sterilize the use of private land. CPR encourages, as it always has, open, up-front, and cooperative relationships. The effect of this bylaw is extreme and, in our view, is simply not an appropriate way for the municipality to act. We would rather use our respective resources in a more appropriate and positive way to come to conclusions that are fair and equitable to all parties. We hope that the City agrees and the right thing will be done with respect to this bylaw. Thank you.

[83]        Members of the public who had asked to be put on the list of speakers were then heard from.  Over the four evenings some 80 speakers were heard from, some at quite considerable length.

[84]        In general, there was support for preservation of the corridor for “greenway” purposes and some support for various kinds of transportation purposes but clearly there was a general aversion to the notion of the corridor becoming a “SkyTrain” route.  No doubt, that influenced Council in its decision to amend the proposed by-law to exclude “any grade-separated rapid transit system elevated, in whole or in part, above the surface of the ground, of which one type is the rapid transit system known as “SkyTrain” currently in use in the Lower Mainland”.

[85]        CPR’s petition to quash the bylaw was filed on August 24, 2000 but was subjected to various amendments before being heard over nine days in June 2002 with the decision being delivered on October 28, 2002.

[86]        From beginning to end, this proceeding has been litigated with an intensity which seems somewhat inconsistent with it being common ground that the only issue is that as to the proper interpretation of a few sections of the Charter.  Many affidavits were filed on both sides.  We were told that the officials and advisors who provided affidavit evidence for the City were subjected to something over 20 days of cross-examination on those affidavits and there was also extensive cross-examination of CPR’s witnesses.  There were extensive proceedings seeking discovery of documents.  The City produced something over 8,000 documents in response to Freedom of Information requests.

[87]        It is reasonable to infer that CPR’s purpose was to unearth evidence which might support an assertion of “bad faith” on the basis of the decision of this court in Hauff v. City of Vancouver (1981) 28 B.C.L.R. 276.  It was there held that a zoning bylaw which reduced the maximum development potential of certain land was enacted in bad faith because the purpose of the bylaw was to depress the value of property which the City wished to purchase.  The search for a “smoking gun” was pursued to the point of a contested application before Mr. Justice Sigurdson who, on November 28, 2001 delivered 31 pages of oral reasons dealing with many issues involving documents of which perhaps the most significant was CPR’s application for a ruling that the City had waived solicitor and client privilege.  That claim was, as Sigurdson J. put it in ¶6 of his reasons, in support of an “allegation that there was an improper purpose behind the City’s actions.”  The communication mainly relied on in support of that allegation was a letter written by Councillor Puil who, at the time, was not only a senior member of Council but also represented the City on the GVRD and was Chair of TransLink, and who appears to have been the most active member of Council in relation to issues involving the Corridor, and transportation generally.  Writing in June, 2000 to citizens who had written to him urging that the Corridor be retained intact, Councillor Puil used this language:

We are currently in the process of doing extensive research as to how we can acquire this Corridor without paying an arm and a leg for it. We will be receiving a report on this within the next two weeks which will outline how this can be done.

      [In the transcript of the judge’s reasons, the  word “Corridor” was rendered as “court order”.     Perhaps a Freudian slip by the transcriber’s    word processor.]

[88]        Sigurdson J. concluded that neither that letter nor any other evidence relied on by CPR was sufficiently cogent to justify disallowing privilege.

[89]        CPR asserts that there were numerous procedural irregularities which must lead to the Bylaw being set aside.  As stated in CPR’s factum, the irregularities come under three headings:

      (1) failure to disclose pertinent documents;
      (2) defects in the public hearing notice; and
      (3) changes following the public hearing.

Failure to disclose pertinent documents

[90]        The authorities principally relied upon by CPR under this heading are:

Eddington v. Surrey (1984), 26 M.P.L.R. 229 (B.C.S.C.), [1985] B.C.J. No. 1925 (Q.L.) (B.C.C.A.);

Pitt Polder Preservation Society v. Pitt Meadows (District) (2000), 12 M.P.L.R. (3d) 1; 2000 BCCA 415;

Paul Esposito Restaurants Ltd. v. District of Abbotsford [1990] B.C.J. No. 1658 (Q.L.) (B.C.S.C.); and

Surfside R.V. Resort Ltd. v. Parksville (City) (1993), 15 M.P.L.R. (2d) 296 (B.C.S.C.).

[91]        The Eddington and Pitt Polder cases, particularly the latter, are now regarded as the leading decisions in this province dealing with the issue of setting aside bylaws for failure to disclose documents which were in the possession of the City prior to a public hearing and were available to Council and were relevant or material to issues raised by persons or groups opposed to the proposed By-law.

[92]        What this case has in common with the those cases and others which have dealt with such issues is that a party (CPR in this instance) opposed to passage of the Bylaw complains that it was prejudiced in its capacity to mount an effective opposition by the City’s failure to make available documents which were in its possession.  In all other respects, the factual and legal aspects of the Pitt Polder line of cases is readily distinguishable from those in the case at bar.  I will note some of the grounds of distinction.

[93]        In the Pitt Polder line of cases, the bylaw under attack was a zoning bylaw and thus was required by statute to be the subject of a public hearing.  Those cases arose under the provisions of the Municipal Act but, in requiring a public hearing for zoning bylaws, the Vancouver Charter also requires a public hearing.  Section 566(1) provides:

The Council shall not make, amend, or repeal a zoning by-law until it has held a public hearing thereon, and an application for rezoning shall be treated as an application to amend a zoning by-law.

Section 566(3)to(5) sets out the requirements for giving notice of the hearing and with respect to the procedure to be followed.  So far as possibly relevant to this case, it reads:

566.(3)     Notice of the hearing, stating

      (a)   the time and place of the hearing, and

      (b)   the place where and the times when a copy of the proposed by-law may be inspected, shall be published in at least 2 consecutive issues of a daily newspaper circulating in the city, with the last publication appearing at least 7 days and not more than 14 days before the date of the hearing.

      (4)   At the hearing all persons who deem themselves affected by the proposed by-law shall be afforded an opportunity to be heard in matters contained in the proposed by-law, and the hearing may be adjourned from time to time.

      (5)   After the conclusion of the public hearing, the Council may pass the proposed by-law in its original form or as altered to give effect to such representations made at the hearing as the Council deems fit.

[94]        A bylaw adopting an Official Development Plan is not a zoning bylaw.  For such a bylaw, there is no statutory requirement to hold a public hearing.  However, it has been the policy of the City to hold a public hearing before enacting such a bylaw and, in doing so, to follow as far as practical the procedure laid down in s.566.  The City takes the position that it did follow that procedure in this instance but that, if it failed in any respect to do so, such failure cannot result in the Bylaw being set aside.

[95]        In the Pitt Polder line of cases, the zoning bylaw had the effect of approving a major project which, if it were to proceed, would have a significant and immediate effect upon the environment and the character of the community.  The effect of this bylaw is quite the opposite.  It is to maintain the status quo in order to allow the Corridor to remain intact to be used for public uses.

[96]        A further distinction is that the nature of the undisclosed documents in the Pitt Polder line of cases was such as to make them clearly material to the issue whether the bylaw should be passed.  In most instances, they were expert reports prepared by consultants for either the City or the developer and were designed to overcome objections based on possible adverse effects to the environment and the community.  In Eddington, the council failed to make available to objectors one of three reports which were available to it.  That report was most material because the City’s municipal engineer had been critical of it.  A further significant element in that case was that the City was in a position of conflict of interest because, if the project went ahead, the developer would buy 20 acres of municipal land at a high price.  In the Pitt Polder case, there were six reports of a highly technical nature which were made available to objectors only after the hearing began.  This court held, reversing the decision at first instance, that the disclosure did not come early enough to allow the objectors to mount an effective response.  I think it is fair to say that Pitt Polder is widely regarded as having gone further than any prior decision in imposing a duty on council to make broad and effective disclosure to members of the public who may wish to oppose enactment of the bylaw.

[97]        CPR’s position goes far beyond that.  It is, as demonstrated in its letter of June 21, 2000 reproduced supra at ¶77, that the City was required to produce to CPR every piece of paper in any category of record which CPR, based on its sophisticated grasp of the history from 1886 to 2000 of consideration by the City of possible future uses of the Corridor, thought might be found in the City’s files.

[98]        To hold that the City’s refusal to comply with such a blanket demand could be a ground for setting aside the Bylaw would be to create a dangerous precedent.  Had the City attempted to comply, the public hearing would have had to be adjourned for months, perhaps years.  Because in this case the City’s purposes might have been served by such a delay, that likely would not have mattered much.  But to sanction such a procedure would, as a general matter, be destructive of the Council’s ability to carry on its business.

[99]        It must be kept in mind that the statutory provisions governing proceedings of this kind clearly express a legislative intention that they proceed with dispatch.  The relevant section of the Charter, which has not changed since its enactment in 1953, reads:

Time within which by-laws may be questioned

149.  Any by-law and any resolution passed by the Council in pursuance of its powers shall be absolutely valid and binding upon all parties concerned, and shall not be questioned in any Court unless within one month after its final passing

(a)  a notice of application to quash the by-law or resolution under Part XXV of this Act has been served upon the city; or

(b)  an action has been commenced in a Court of competent jurisdiction to set the by-law or resolution aside.

[100]    It is interesting to note that the equivalent provision in the Local Government Act, R.S.B.C. 1996, c.323 is even more stringent.  Section 262(4) provides:

262(4)      Except for a bylaw referred to in subsection (3)(b), an order under this section relating to a bylaw must not be made unless the application is heard within 2 months after the adoption of the bylaw.

[101]    The demand in this case was so excessively broad and showed so little regard for the question whether any of the documents were pertinent or relevant or, for that matter, whether they ever existed, that the City was in my view fully justified in rejecting it out of hand.

[102]    A further defect in CPR’s case with regard to document production is that the points which it says it might have been able to raise at the hearing, had it had access to the City’s documents, are not points relevant or pertinent to any issue between CPR and the City.  Counsel for CPR referred us to a number of facts which emerged from the protracted cross-examination and discovery of documents which, he suggested, might have had some effect on the outcome had they been brought to the attention of Council at the public meeting.  I have reviewed those instances.  The only purpose which those documents might have served, as far as I can see, would be to illustrate that the City and the other public bodies having an interest in the matter had no clear idea of the specific public uses to which the Corridor should be put.  It was in large part because of the continuing uncertainty as to the most appropriate uses, and the related uncertainty about “funding”, that Council decided to introduce the Bylaw.  That being so, it is difficult to envisage that setting out further examples of specific instances of uncertainty could have served any useful purpose.

[103]    That is particularly so in relation to CPR.  Its position, as put forward very capably in Mr. Webster’s letters prior to the public hearing and in Mr. Massil’s presentation at the hearing, was that the Bylaw should not be enacted.  It was a matter of indifference to CPR as to what specific uses would be provided for in the Bylaw.  But the documents sought by CPR, to the extent they existed and had any relevance to the issues before Council, could bear only on that question.

[104]    The absence of any statutory requirement to hold a public hearing is a significant circumstance in relation to the issues raised here.  It has been held that compliance with the statutory provisions for notice and other procedural matters is at the very root of Council’s authority to adopt a by-law i.e., that it is a condition precedent to Council’s authority so to act.  For a useful discussion of that matter see the reasons of Rae J. in Peterson v. Resort Municipality of Whistler (1982), 39 B.C.L.R. 221 (S.C.).  In that situation, it has been held, it is not necessary for the person who petitions to set aside the by-law to establish that he, she, or it has been prejudiced or has any particular interest.  But that cannot apply to a case such as this where there is no statutory requirement.  I am inclined to think that the City goes too far in arguing that, in the absence of a statutory requirement, it had no obligation of fairness with respect to the public hearing.  However, any obligation which it had must be based on common law principles of fairness.  If the aspect of the hearing to which objection is taken cannot result in prejudice to the complaining party, that is surely a complete answer to its complaint.

The change in the Bylaw wording

[105]    This submission rests upon the fact that City Council, at the closed meeting following the public hearing, amended the wording of the Bylaw by adding the exclusion of elevated rail.  CPR’s submission that the amendment was beyond the powers of Council is based on case authorities decided under s.720(7) of the Municipal Act which reads:

… the council may without further notice, in the zoning bylaw as adopted, give the effect it believes proper to representations made at the hearing, except that any change subsequent to the hearing shall not alter the substance of the bylaw.

[106]    That section has no application to this case.  The equivalent section in the Charter is s.566(5), supra, ¶92, which provides that, after the public hearing, Council may alter the Bylaw “to give effect to such representations made at the hearing as the Council deems fit.”  That describes the course adopted by Council.  While it is true that s.566(5) did not, as a matter of law, govern Council’s procedure in this case, I regard the fact that Council dealt with the matter in accordance with the statutory provision as a complete answer to this complaint.

[107]    A further answer to CPR’s complaint is that no prejudice or unfairness to it arose from the amendment of the Bylaw.  As I said earlier, it was a matter of indifference to CPR what specific public uses would be provided for in the Bylaw.  Indeed, the deletion of one major type of public use would seem, if anything, to be to the benefit of CPR by simplifying the issues and thus perhaps shortening the time before a final resolution is reached.

[108]    I would dismiss the ground of appeal based upon the change in the Bylaw wording.

Failure to provide adequate notice

[109]    This ground of appeal is directed at language used in the “public hearing notice” published in newspapers and the public hearing notification letter distributed by the City to some 11,000 households in neighbourhoods adjacent to the Corridor.

[110]    The wording of the first notice is alleged to have been defective in failing to specifically state that the proposed Bylaw would designate private land as a “public thoroughfare”. With respect to the other, it is said that it was not open to Council to exempt elevated rail uses from the Bylaw because the notice had stated to the public that no decision would be made about specific transit uses.

[111]    The first point appears to me to be so narrowly technical in nature that, having regard to the quite clear notice that was given of the purpose of the intended bylaw, it could not provide a ground for setting it aside.

[112]    The point regarding specific transit uses may be, at least in theory, of somewhat more substance.  However, having regard to the fact that there was no statutory requirement for the hearing and to the fact that CPR, the only petitioner, was not prejudiced by the change in specific uses, I conclude that the matter cannot justify an order to quash.  I would therefore not give effect to this ground of appeal.


SUMMARY

[113]    To sum up, I would:

(a)   allow the appeal of the City and set aside the order declaring the Bylaw invalid;

(b)   dismiss CPR’s cross-appeal seeking an order requiring the City to now pay for the land; and

(c)   dismiss CPR’s cross-appeal on the procedural issues raised by it.

 

 

 

 

“The Honourable Mr. Justice Esson”

 

 

 

 

I Agree:

 

 

 

“The Honourable Mr. Justice Donald”


Reasons for Judgment of the Honourable Madam Justice Southin:

[114]    Many years ago, in Spencer v. Continental Insurance Co., [1945] 4 D.L.R. 593 at 609, [1945] 3 W.W.R. 161 at 180, the Honourable J. O. Wilson, successively Wilson C.C.J., J., J.A., and C.J.S.C., remarked that, in arriving at a conclusion to which he was compelled by law, he was obliged to avert his nostrils.

[115]    As I can see no answer to the analysis in which I concur of my colleague, Esson J.A., to me this is such a case.

[116]    Unlike either of my colleagues, I am an inhabitant of the City (see the Vancouver Charter, s. 6). 

[117]    If the choice of the Cambie Street route for rapid transit to the airport remains unaltered, there does not appear to be any rational possibility of the Arbutus corridor being acquired for transit in the foreseeable future.  Thus the bylaw in issue now can have no purpose but to enable the inhabitants to use the corridor for walking and cycling, which some do (trespassers all), without paying for that use. 

[118]    The shareholders of the CPR ought not to be expected to make a charitable gift to the inhabitants.  I make an educated guess that many of the shareholders are pension plans, including the Canada Pension Plan, and mutual funds in which many of the inhabitants have an interest.

[119]    It is time for this dispute to be brought to an end.  If the City Council and the Board of Directors of the CPR, by negotiation, cannot reach a bargain of purchase and sale which each is prepared to defend as fair and reasonable, in the case of the Council to the inhabitants, and in the case of the Board to the shareholders, the Government of British Columbia should intervene and impose such a bargain, perhaps after a public inquiry.

[120]    The present impasse is an absurdity unworthy of this Province which, on the way to the 2010 Olympic Games, is asserting to all and sundry that it is a marvellous place.

 

 

 

 

“The Honourable Madam Justice Southin”

 

 

Corrigendum to Written Reasons by:

The Honourable Mr. Justice Esson:

 

Paragraphs numbered 2, 32, 51, 65, 72 and 106 have been amended and the amendments have been included in this judgment.