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

AuthorRyan Goldvine
40 APPEAL VOLUME 11 2006
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 railperhaps 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
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
and the Vancouver Charter.
It is through
Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985,
App. II, No. 5.
S.B.C. 2003, c. 26 (Community Charter).
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

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