Gook Country Estates Ltd. v. Quesnel (City) et al., (2008) 261 B.C.A.C. 69 (CA)

• Judge: Low, Frankel and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 10, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 261 B.C.A.C. 69 (CA);2008 BCCA 407

Gook Country Estates v. Quesnel (2008), 261 B.C.A.C. 69 (CA);

    440 W.A.C. 69

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. NO.019

Gook Country Estates Ltd. (appellant/plaintiff) v. The Corporation of the City of Quesnel, 553615 BC Ltd., Grand Forks Trail Properties Ltd., ICI Properties Ltd., Dalton Hooker, Peter Couldwell, Dwight Pujol, Peter MacLaughlan, and Stephen Wallace (respondents/defendants) and Douglas Ruttan and Jack Marsh (defendants)

(CA034497; 2008 BCCA 407)

Indexed As: Gook Country Estates Ltd. v. Quesnel (City) et al.

British Columbia Court of Appeal

Low, Frankel and Groberman, JJ.A.

October 10, 2008.

Summary:

Two rival developers (the plaintiff and one of the defendants) owned adjacent commercial properties in the City of Quesnel. The plaintiff claimed that the defendant developer received unlawful assistance from Quesnel city officials, alleged to include illegal extension of city water lines and approval of developments that did not comply with legal requirements. The plaintiff successfully developed its own property and did not seek to recover any direct loss. However, the plaintiff claimed that the city had suffered loss and claimed to bring the action on behalf of all of the city's taxpayers. It said that the city should recover that loss not only from the defendant developer, but in some cases from the responsible city officials, including the former mayor and city manager. It also sought an order nullifying certain development permits, although the buildings authorized by those permits had been built and were occupied.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. D08, determined the issues. The plaintiff appealed from the refusal to grant a declaration that two development permits were void.

The British Columbia Court of Appeal dismissed the appeal.

Equity - Topic 2065.1

Equitable defences - Laches - Application to set aside development permit - [See second Practice - Topic 5652 ].

Municipal Law - Topic 3810

Bylaws - Quashing bylaws - General - Jurisdiction - The British Columbia Court of Appeal, referring to its own previous decision, rejected the proposition that a trial court lacked discretion to deny declaratory relief where a plaintiff alleged that a bylaw was void - The court also referred to two Supreme Court of Canada decisions that suggested that some discretion, though clearly a narrow one, might apply in cases where the matter at issue was a "total lack of jurisdiction" - See paragraphs 7 to 16.

Municipal Law - Topic 3843

Bylaws - Quashing bylaws - Grounds for judicial interference - Illegality - [See Municipal Law - Topic 3810 ].

Practice - Topic 5652

Judgments and orders - Declaratory judgments - When available - General - [See Municipal Law - Topic 3810 ].

Practice - Topic 5652

Judgments and orders - Declaratory judgments - When available - General - The plaintiff appealed from a trial judge's refusal to grant a declaration that two development permits were void - The British Columbia Court of Appeal dismissed the appeal - The developments authorized by the permits had long since been built - The plaintiff did not appear to have any particular legal interest in the developments, and came before the court simply as a taxpayer, alleging that that was sufficient to give it standing - The trial judge had discretion to refuse to entertain the plaintiff's action for a declaration - In determining whether or not to exercise that discretion, he properly considered the possibility of adverse effects on third parties, the plaintiff's delay in bringing the matter before the court, the plaintiff's limited interest in the matter, the lack of any clear utility to a declaration, and the fact that the developments in question had already been built in reliance on the permits.

Practice - Topic 5652

Judgments and orders - Declaratory judgments - When available - General - The British Columbia Court of Appeal reaffirmed the general proposition that declaratory relief per se was discretionary - The court stated that "When an action is brought by a plaintiff seeking a declaration, the court may deny relief on several discretionary grounds, including standing, delay, mootness, the availability of more appropriate procedures, the absence of affected parties, the theoretical or hypothetical nature of the issue, the inadequacy of the arguments presented, or the fact that the declaration sought is of merely academic importance and has no utility. I do not suggest that this list is exhaustive." - See paragraph 10.

Practice - Topic 5666

Judgments and orders - Declaratory judgments - Bars - Adequate alternate remedy - [See third Practice - Topic 5652 ].

Practice - Topic 5667

Judgments and orders - Declaratory judgments - Bars - Academic questions - [See third Practice - Topic 5652 ].

Practice - Topic 5667.1

Judgments and orders - Declaratory judgments - Bars - Uncertain factual underpinning - [See third Practice - Topic 5652 ].

Practice - Topic 5667.2

Judgments and orders - Declaratory judgments - Bars - Equitable defences - [See second and third Practice - Topic 5652 ].

Practice - Topic 5668

Judgments and orders - Declaratory judgments - Parties - [See second and third Practice - Topic 5652 ].

Cases Noticed:

Hornby Island Trust Committee v. Stormwell (1988), 53 D.L.R.(4th) 435 (B.C.C.A.), dist. [para. 7].

Newson v. Esquimalt (Township), [1989] B.C.J. No. 525 (S.C.), not folld. [para. 11].

Highlands Preservation Society v. Highlands (District) et al., [2005] B.C.T.C. 1743; 2005 BCSC 1743, not folld. [para. 11].

Immeubles Port Louis ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; 121 N.R. 323; 38 Q.A.C. 253, consd. [para. 12].

RSJ Holdings Inc. v. London (City), [2007] 2 S.C.R. 588; 364 N.R. 362; 226 O.A.C. 375; 2007 SCC 29, consd. [para. 15].

Authors and Works Noticed:

Sarna, Lazar, The Law of Declaratory Judgments (3rd Ed. 2007), c. 3 [para. 10].

Zamir, Itzhac, The Declaratory Judgment (1st Ed. 1962), p. 183 [para. 7].

Zamir, Itzhac, and Woolf, Jeremy, The Declaratory Judgment (2nd Ed. 1993), c. 4 [para. 10].

Counsel:

R. Burke, for the appellant;

J. Yardley, for the respondents, City of Quesnel, D. Hooker, P. Couldwell, D. Pujol, P. MacLaughlan and S. Wallace;

A. Winstanley, for the respondents, 553615 B.C. Ltd., Grand Forks Trail Properties Ltd. and ICI Properties Ltd.

This appeal was heard at Vancouver, B.C., by Low, Frankel and Groberman, JJ.A., of the British Columbia Court of Appeal, on October 10, 2008. Groberman, J.A., delivered the following oral decision for the court on the same date.