In Good Faith to Whom? An Analysis of Judicial Deference to Municipal Authority and the Dispute over the Arbutus Corridor

• Author: Ryan Goldvine
• Pages: 40-56

40 APPEAL  VOLUME 11  2006

IN GOOD FAITH TO WHOM?

AN ANALYSIS OF JUDICIAL DEFERENCE TO

MUNICIPAL AUTHORITY AND THE DISPUTE

OVER THE ARBUTUS CORRIDOR

Ryan Goldsmith

I recall driving across the Arbutus Corridor daily on my way to

school and being stopped by the familiar lights and sounds of a

train crossing. Sometimes it would be only for a moment, and other

times I might be waiting for what seemed like an hour. I later

remember wondering (while really knowing) why the trains never

passed by that crossing at 16th Avenue anymore. I also recall

wondering how such an odd-shaped piece of land might be developed

after it was no longer used for rail—perhaps it would remain

undeveloped and be used as bike trails, or perhaps it would be a

stretch of very narrow houses and shops. It never occurred to me that

these musings might be the subject of consideration by our nation’s

highest court of appeal, the Supreme Court of Canada.

The legislature of British Columbia has empowered municipalities

with broad powers of discretion over land use planning. Since these

powers could be seen to conflict with the rights of landowners, these

discretionary powers must often be enforced by the courts. While

there is a general presumption in favour of the courts deferring to

municipal authority, the courts can intervene and review municipal

actions where they are outside the authority of the municipal

government or where the actions are marked by “patent

unreasonableness”. Where the courts draw the line between deference

and intervention has been debated over many years, but continues to

lack the clarity the courts insist it has. Recently, the British Columbia

APPEAL  VOLUME 11  2006 41

Court of Appeal overturned a lower court decision that struck out a

by-law restricting development on private land owned by Canadian

Pacific Railway (CPR), finding the city acted within its powers in

enacting this by-law.

The goal of this case comment is to examine the current case before

the Supreme Court of Canada (SCC) regarding the Arbutus Corridor,

and to consider the likely outcome in light of the specific statutory

context and past jurisprudence regarding judicial deference to

municipal authority in municipal land use planning. Given these two

formative factors, I conclude that the SCC will find against the private

property rights of CPR and in favour of the by-laws enacted by the

City of Vancouver. I will begin with an overview of municipal

authority over land use planning, followed by an examination of case

law, setting out the parameters of judicial deference to municipal

authority. I will then look at municipal authority in relation to the

current dispute between the City of Vancouver and Canadian Pacific

Railway over the future use of the Arbutus Corridor.

Municipal Land Use and Planning

Though real property may be privately owned, an owner of land is

restricted in what may be done with that land. Section 92 of the

Constitution Act, 1867 gives provinces authority over both “Municipal

Institutions in the Province”, and “Property and Civil Rights in the

Province”.

1

The most recent legislation governing municipal

institutions is the Local Government Act, which confers on regional

districts and municipalities authority over land use and planning.

Provisions mandating long term strategies begin in Part 25, entitled

“Regional Growth Strategies”, while more localized planning and

specific land use zoning is outlined in Part 26, “Planning and Land

Use Management”. In addition, more detailed loca l authority is set

forth in the Community Charter

2

and the Vancouver Charter.

3

It is through

1

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985,

App. II, No. 5.

2

S.B.C. 2003, c. 26 (Community Charter).

3

S.B.C. 1953, c. 55 (Vancouver Charter). It is useful to note that the

Vancouver Charter predates both the Loca l Government Act and the Community

Charter.