Heller v. Greater Vancouver Regional District

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: McEachern, C.J.B.C., Southin and Gibbs, JJ.A.
• Citation: (1992), 17 B.C.A.C. 1 (CA)
• Date: 22 June 1992
• Subject Matter: ADMINISTRATIVE LAW,PRACTICE

Heller v. Vancouver (1992), 17 B.C.A.C. 1 (CA);

    29 W.A.C. 1

MLB headnote and full text

Sella Heller (petitioner/appellant) v. Greater Vancouver Regional District (respondent/respondent)

(CA013547)

Indexed As: Heller v. Greater Vancouver Regional District

British Columbia Court of Appeal

McEachern, C.J.B.C., Southin and Gibbs, JJ.A.

August 11, 1992.

Summary:

Heller owned a residential lot of land that had an ocean view. The view became obstructed by trees growing on lands of the defendant municipality. Heller applied for a declaration that the municipality was bound by regulations that gave a minister authority to order the removal of trees that interfere with the enjoyment of adjacent landowners.

The trial judge dismissed the application. Heller appealed.

The British Columbia Court of Appeal dismissed the appeal on the ground that the application was academic.

Administrative Law - Topic 4565

Judicial review - Declaratory action - Bars - Academic questions - Heller's ocean view from her residential lot became obstructed by trees growing on lands owned by a municipality - Heller applied for a declaration that the municipality was bound by regulations that empowered a minister to order the removal of trees that interfered with the enjoyment of adjacent landowners - The British Columbia Court of Appeal affirmed a dismissal of Heller's application because the application was academic (see paragraphs 19, 20 and 43).

Practice - Topic 5667

Judgments - Declaratory judgments - Bars - Academic questions - [See Administrative Law - Topic 4565 ].

Cases Noticed:

Saskatchewan Wheat Pool v. Canada, [1983] 3 W.W.R. 98; 45 N.R. 425 (S.C.C.), refd to. [paras. 15, 68].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [paras. 20, 61].

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government et al., [1960] A.C. 260 (H.L.), refd to. [para. 58].

Orpen v. Roberts, [1925] S.C.R. 364, refd to. [para. 65].

Statutes Noticed:

Offence Act, R.S.B.C. 1979, c. 305, sect. 5 [para. 67].

Rules of Court (B.C.), rules 5(22) [para. 14]; rule 10 [para. 13].

University Endowment Land Act, R.S.B.C. 1979, c. 420, sect. 9 [para. 1].

University Endowment Land Act Regulations (B.C.), sect. 17 [para. 8].

Counsel:

D. Geoffrey Cowper, for the appellant;

Dale B. Pope, for the respondent.

This appeal was heard by McEachern, C.J.B.C., Southin and Gibbs, JJ.A., of the British Columbia Court of Appeal on June 22, 1992. The decision of the court was delivered on August 11, 1992 and the following opinions were filed:

Gibbs, J.A. - see paragraphs 1 to 22;

Southin, J.A. - see paragraphs 23 to 43;

McEachern, C.J.B.C., dissenting - see paragraphs 44 to 75.