First National Properties Ltd. v. Highlands (District) et al., (2001) 152 B.C.A.C. 83 (CA)

• Judge: Newbury, Levine and Proudfoot, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 25, 2001
• Jurisdiction: British Columbia
• Citations: (2001), 152 B.C.A.C. 83 (CA);2001 BCCA 305

First Nat. Prop. Ltd. v. Highlands (2001), 152 B.C.A.C. 83 (CA);

    250 W.A.C. 83

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. MY.127

First National Properties Ltd. (plaintiff/respondent) v. Robert McMinn (defendant/appellant) and The Corporation of the District of Highlands, Bruce Woodbury, Her Majesty The Queen in Right of the Province of British Columbia and Frank Edgell (defendants)

(V03554)

First National Properties Ltd. (plaintiff/respondent) v. The Corporation of the District of Highlands and Bruce Woodbury (defendants/appellants) and Robert McMinn, Her Majesty The Queen in Right of the Province of British Columbia and Frank Edgell (defendants)

(V03555)

(2001 BCCA 305)

Indexed As: First National Properties Ltd. v. Highlands (District) et al.

British Columbia Court of Appeal

Newbury, Levine and Proudfoot, JJ.A.

April 25, 2001.

Summary:

First National Properties Ltd. owned 1767 acres of undeveloped rural land. First Na­tional proposed to develop the property into residential parcels. It was unable to obtain approval for rezoning from the District. First National sold all but 30 acres of the property to the Province. The District allowed the Province's rezoning application. First Na­tional's requests for rezoning for the 30 acres that it retained were denied. First National sued the District, its mayor, its approving officer, the Province and a Provin­cial employee. First National claimed that the District through the mayor and approving officer, committed an abuse of public office in their dealings with First National's appli­cations. First National also alleged that the District conspired with the Province and its employee to put First National in the posi­tion where it had no reasonable alternative but to sell the property to the Province at a price that was below fair market value. First National claimed that the Province and its employee committed the tort of bad faith during the negotiations to purchase the property by failing to be completely open in its negotiations. First National sought dam­ages, including punitive or exemplary dam­ages.

The British Columbia Supreme Court, in a decision reported in 21 B.C.T.C. 290, held that the mayor and approving officer com­mitted the tort of abuse of public office by disadvantaging First National in its negoti­ations with the Province. The court held that the District was vicariously liable for the mayor's and approving officer's actions. Further, the District committed an abuse of public office in rejecting First National's application for rezoning of the 30 acre par­cel. The court held that the Province and its employee did not conspire with the other defendants. The court held that the tort of bad faith was not a recognized cause of action in Canada. The court awarded First National $500,000 damages against the mayor and approving officer. The court awarded $10,000 punitive damages against the mayor. The mayor, approving officer and district all appealed.

The British Columbia Court of Appeal allowed the appeal and dismissed the actions against all defendants.

Municipal Law - Topic 113

Mayors - Authority - Abuse of - The owner of undeveloped rural land could not obtain rezoning to permit residential de­velopment, so sold all but 30 acres to the province - The district approved the prov­ince's rezoning application, but rejected the owner's bid to rezone the remaining 30 acres - The British Columbia Court of Appeal held that the mayor (a known advocate for preserving the natural envi­ronment), in his pursuit of a bona fide political belief about the public interest, did not abuse his public office - There was no "targeted malice", which was nec­essary for such a cause of action - Preser­vation of lands in their natural state was a proper municipal purpose, even where lawful actions carried out to further that purpose adversely affected property own­ers' inter­ests - See paragraphs 38 to 45, 64.

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - [See second Torts - Topic 9162 ].

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - The owner of undeveloped rural land could not obtain rezoning to permit residential de­velopment, so sold all but 30 acres to the province - The district approved the prov­ince's rezoning application, but rejected the owner's bid to rezone the remaining 30 acres - The owner accused the district's approving officer of abuse of public office - The British Columbia Court of Appeal set aside a finding that the approving officer abused his office - The court held that the trial judge erred by failing to make any causal connection between the alleged wrongs and the owner's sale of the land to the province - See paragraphs 46 to 56, 65.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See second Torts - Topic 9155 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The owner of undeveloped land could not obtain rezoning for residen­tial development, so sold all but 30 acres to the province - The district approved the province's rezoning application, but rejected the owner's bid to rezone the re­maining 30 acres - The British Colum­bia Court of Appeal held that the district coun­cil did not abuse its public office - There was no evidence at trial of the councillors' states of mind, other than the mayor - Even if the majority had a "stated inten­tion" to reject the rezoning application and disadvantage the owner, the court doubted that state of mind constituted malice for purposes of the tort of abuse of public office - See paragraphs 67 to 73.

Cases Noticed:

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 64 B.C.L.R.(3d) 206 (C.A.), refd to. [para. 3].

Simpson v. Vancouver (City), [1977] 1 S.C.R. 71; 7 N.R. 550, refd to. [para. 11].

Hlynsky v. West Vancouver (Approving Officer) (1989), 37 B.C.L.R.(2d) 79 C.A.), refd to. [para. 11].

Lundy v. Metchosin (1990), 44 B.C.L.R.(2d) 338 (C.A.), refd to. [para. 11].

Continental Insurance Co. v. Dalton Cartage Co. et al., [1982] 1 S.C.R. 164; 40 N.R. 135; 131 D.L.R.(3d) 559, refd to. [para. 31].

Bater v. Bater, [1950] 2 All E.R. 458 (C.A.), refd to. [para. 31].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 31].

Roncarelli v. Duplessis, [1959] S.C.R. 122, refd to. [para. 32].

Bourgoin SA and Others v. Ministry of Agriculture, Fisheries and Food, [1985] 3 All E.R. 585 (C.A.), refd to. [para. 32].

Chhabra v. Minister of National Revenue (1989), 26 F.T.R. 288; 43 D.T.C. 5310 (T.D.), refd to. [para. 32].

Francoeur et al. v. Canada (1994), 78 F.T.R. 109 (T.D.), refd to. [para. 32].

Three Rivers District Council et al. v. Bank of England, [2000] 3 All E.R. 1; 257 N.R. 1 (H.L.), refd to. [para. 32].

Three Rivers District Council et al. v. Bank of England, [2000] 2 W.L.R. 15, affing. [1996] 3 All E.R. 558 (Q.B.), refd to. [para. 32].

MacMillan Bloedel Ltd. v. Galiano Island Trust Committee (1995), 63 B.C.A.C. 81; 104 W.A.C. 81; 10 B.C.L.R.(3d) 121 (C.A.), consd. [para. 38].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609; 49 C.C.L.T. 217, refd to. [para. 39].

Simpson v. Vancouver, [1977] 1 S.C.R. 72; 7 N.R. 550, consd. [para. 41].

Clare v. Thomson et al. (1993), 25 B.C.A.C. 146; 43 W.A.C. 146; 83 B.C.L.R.(2d) 263 (C.A.), refd to. [para. 51].

Serendipity Ventures Ltd. v. White Rock (City) (1988), 39 M.P.L.R. 1 (B.C.S.C.), consd. [para. 68].

Jones v. Swansea City Council, [1990] 1 W.L.R. 1453; 132 N.R. 81 (H.L.), consd. [para. 69].

Canada Mortgage and Housing Corp. v. North Vancouver (District) (2000), 134 B.C.A.C. 294; 219 W.A.C. 294 (C.A.), refd to. [para. 69].

Save Richmond Farmland Society et al. v. Richmond (Township), [1990] 3 S.C.R. 1213; 116 N.R. 68, consd. [para. 71].

Statutes Noticed:

Land Title Act, R.S.B.C. 1979, c. 219, sect. 85, sect. 86 [para. 11].

Counsel:

L.J. Alexander, for the appellant, Robert McMinn;

B. Williamson, for the appellants, The Corporation of the District of Highlands and Bruce Woodbury;

J.L. Finlay and M.G. Underhill, for the respondent, First National Properties Ltd.

This appeal was heard in Vancouver, Brit­ish Columbia, on March 12 and 13, 2001, before Newbury, Levine and Proudfoot, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Newbury, J.A., on April 25, 2001.