Burrardview Neighbourhood Association v. Vancouver (City) et al., (2007) 362 N.R. 208 (SCC)

• Judge: Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 31, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 362 N.R. 208 (SCC);2007 SCC 23;362 NR 208;[2007] 6 WWR 197;JE 2007-1107;241 BCAC 1;34 MPLR (4th) 1;[2007] SCJ No 23 (QL);[2007] 2 SCR 86;66 BCLR (4th) 203;281 DLR (4th) 54

Neighbourhood Assoc. v. Vancouver (2007), 362 N.R. 208 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.R. TBEd. MY.035

Attorney General of British Columbia (appellant) v. Lafarge Canada Inc. and Vancouver Port Authority (respondents) and Burrardview Neighbourhood Association and City of Vancouver (respondents) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick and Attorney General of Alberta (intervenors)

(30317; 2007 SCC 23; 2007 CSC 23)

Indexed As: Burrardview Neighbourhood Association v. Vancouver (City) et al.

Supreme Court of Canada

Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

May 31, 2007.

Summary:

Lafarge proposed to build an integrated ship offloading/concrete batching facility on land leased from the Vancouver Port Authority (VPA), a federal undertaking which owned the land in its own right. At issue was whether the proposed facility had to comply with the City of Vancouver's Zoning and Development Bylaw (provincial/municipal law), which required a Development Permit that included, inter alia, a height restriction that was not required by the federal law governing land use controls (authorized by Canada Marine Act and implemented by the Port Land Use Management Plan).

The British Columbia Supreme Court, in a decision reported at [2002] B.C.T.C. 1412, granted the petition and declared that the VPA lacked jurisdiction to approve the project. The court held that the land was not "public property" under s. 91(1A) of the Constitution Act, 1867, as the land was neither owned by the federal Crown nor owned by the VPA as agent for the federal Crown. The court held that the Lafarge proposal did not fall under exclusive federal jurisdiction over shipping and navigation (Constitution Act, 1867, sect. 91(10)). Lafarge and the VPA appealed.

The British Columbia Court of Appeal, in a judgment reported (2004), 194 B.C.A.C. 78; 317 W.A.C. 78, allowed the appeal and dismissed the petition. The court held that the VPA land constituted "public property", as s. 91(1A) was broad enough to include land owned by an entity "controlled" by the federal Crown. Accordingly, the VPA land fell under exclusive federal jurisdiction and was not subject to provincial/municipal land regulation. No development permit was required. The court, per Finch, C.J.B.C., further opined that provincial/municipal land regulation did not apply on an application of the doctrine of federal paramountcy, as that would impermissibly affect a vital federal shipping function (exclusive federal jurisdiction over shipping and navigation under s. 91(10)). Mackenzie and Thackray, JJ.A., having agreed that provincial/municipal land use regulation did not apply because the land was "public property", found it unnecessary to address the issue of federal jurisdiction over shipping and navigation. The Attorney General of British Columbia appealed.

The Supreme Court of Canada dismissed the appeal. The VPA-owned land was not exempt from provincial/municipal land use regulation under s. 91(1A), as the land was not "public property" where it was neither owned by the federal Crown nor held by the VPA as agent for the federal Crown. Land held by the VPA in its own right was not "public property" merely because the VPA was "controlled" by the federal Crown. A "proprietary interest" was required. However, provincial/municipal laws regulating land use were inoperative as against the VPA land on an application of the doctrine of federal paramountcy. There was an operational conflict where the trial judge could not have given effect to both the provincial/municipal law and the federal law.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - Lafarge proposed to build an integrated ship offloading/concrete batching facility on land leased from the Vancouver Port Authority (VPA), a federal undertaking which owned the land in its own right (i.e., not "public property" under s. 91(1A) of Constitution Act, 1867) - At issue was whether the proposed facility had to comply with the City of Vancouver's Zoning and Development Bylaw (provincial/municipal law), which required a Development Permit that included, inter alia, a height restriction that was not required by the federal law governing land use controls (authorized by Canada Marine Act and implemented by the Port Land Use Management Plan) - The Supreme Court of Canada held that absent federal regulatory land use controls, the provincial land use controls would apply - The whole of the Lafarge project was sufficiently "integrated" into the ship/barge unloading facility to make federal regulation applicable to all aspects of the project - There was "valid and applicable federal legislation which is in conflict, both in its operation and in its purpose with the provincial land-use legislation and regulations adopted under its authority" - Accordingly, the court held that the issue was best resolved under the doctrine of federal paramountcy, not on the basis of interjurisdictional immunity, which "ran contrary to the 'dominant tide' of Canadian constitutional jurisprudence" - See paragraph 4.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - Lafarge proposed to build an integrated ship offloading/concrete batching facility on land leased from the Vancouver Port Authority (VPA), a federal undertaking which owned the land in its own right (i.e., not "public property" under s. 91(1A) of Constitution Act, 1867) - At issue was whether the proposed facility had to comply with the City of Vancouver's Zoning and Development Bylaw (provincial/municipal law), which required a Development Permit that included, inter alia, a height restriction that was not required by the federal law governing land use controls (authorized by Canada Marine Act and implemented by the Port Land Use Management Plan) - The Supreme Court of Canada held that absent federal regulatory land use controls, the provincial land use controls would apply - The whole of the Lafarge project was sufficiently "integrated" into the ship/barge unloading facility to make federal regulation applicable to all aspects of the project - The federal land use controls were paramount over the conflicting provincial land use controls, which were rendered inoperative under the doctrine of federal paramountcy - Operational conflict was present where "the judge could not give effect both to the federal law ... and the municipal law" - See paragraphs 62 to 85.

Constitutional Law - Topic 5623

Federal jurisdiction (s. 91) - Federal debt and property - Federal public lands - Section 91(1A) of the Constitution Act, 1867, gave the federal Crown exclusive jurisdiction over "public property" - The Vancouver Port Authority (VPA), a federal undertaking, owned land in its own right, not as a federal Crown agent - However, the VPA remained subject to significant control by the federal Crown (e.g., ability to acquire, hold and dispose of property) - The British Columbia Court of Appeal held that VPA-owned land was "public property", as s. 91(1A) included not only land owned by the federal Crown or held for the federal Crown by an agent, but also land owned by an entity "controlled" by the federal Crown - Accordingly, the land was not subject to provincial/municipal land use regulation - The Supreme Court of Canada held that the Court of Appeal's interpretation of s. 91(1A) was too broad - Section 91(1A) created immunity for "public property" based on a proprietary interest, which included land owned directly by the federal Crown and lands held by an agent for the federal Crown - Land owned in its own right by an entity "controlled" by the federal Crown (no proprietary interest) did not constitute "public property" - Accordingly, the VPA had to look to the federal government's exclusive jurisdiction over shipping and navigation (Constitution Act, 1867, s. 91(10)), to exempt it from provincial/municipal land use regulation - See paragraphs 54 to 61.

Constitutional Law - Topic 5952

Federal jurisdiction (s. 91) - Navigation and shipping - Scope of power - [See Constitutional Law - Topic 3614 ].

Cases Noticed:

Canadian Western Bank v. Alberta (2007), 362 N.R. 111; 2007 SCC 22, refd to. [para. 4].

Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 4].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 35].

Montreal (City) v. Montreal Harbour Commissioners, [1926] 1 D.L.R. 840 (P.C.), refd to. [para. 36].

Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, refd to. [para. 37].

Hamilton Harbour Commissioners v. Hamilton (City) et al. (1976), 21 O.R.(2d) 459 (H.C.), refd to. [para. 37].

R. v. Canadian Dredge & Dock Co. et al., [1985] 1 S.C.R. 662; 59 N.R. 241; 9 O.A.C. 321, refd to. [para. 38].

Mississauga (City) v. Greater Toronto Airports Authority et al. (2000), 138 O.A.C. 1; 192 D.L.R.(4th) 443; 50 O.R.(3d) 641 (C.A.), leave to appeal refused, [2001] 1 S.C.R. ix; 274 N.R. 196; 153 O.A.C. 200, refd to. [para. 38].

Bell Canada v. Commission de la santé et de la sécurité du travail (Qué.) and Bilodeau et al., [1988] 1 S.C.R. 749; 85 N.R. 295; 15 Q.A.C. 217, refd to. [para. 42].

Reference Re Industrial Relations and Disputes Investigation Act (Canada), [1955] S.C.R. 529, refd to. [para. 42].

Montcalm Construction Inc. v. Minimum Wage Commission (Que.) et al., [1979] 1 S.C.R. 754; 25 N.R. 1, refd to. [para. 55].

Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, refd to. [para. 55].

Greater Toronto Airports Authority v. Mississauga (City) (1998), 87 O.T.C. 1; 43 O.R.(3d) 9 (Gen. Div.), refd to. [para. 56].

Coyne v. Broddy (1887), 13 O.R. 173 (Ch. D.), refd to. [para. 57].

R. v. Labour Relations Board (Ont.); Ex parte Food Terminal Board (Ont.) (1963), 38 D.L.R.(2d) 530 (Ont. C.A.), refd to. [para. 58].

Westeel-Rosco Ltd. v. South Saskatchewan Hospital Centre Board of Governors, [1977] 2 S.C.R. 238; 11 N.R. 514, refd to. [para. 58].

Halifax (City) v. Halifax Harbour Commissioners, [1935] S.C.R. 215, refd to. [para. 59].

Minister of National Revenue v. Nova Scotia Power Inc., [2004] 3 S.C.R. 53; 323 N.R. 394; 2004 SCC 51, refd to. [para. 59].

R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 1 O.A.C. 243, refd to. [para. 59].

Queddy River Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222, refd to. [para. 64].

Ontario (Attorney General) v. Winner, [1954] A.C. 541 (P.C.), refd to. [para. 64].

Johannesson v. West St. Paul (Rural Municipality), [1952] 1 S.C.R. 292, refd to. [para. 64].

Orangeville Airport Ltd. v. Caledon (Town) et al. (1976), 11 O.R.(2d) 546 (C.A.), refd to. [para. 64].

Monk Corp. v. Island Fertilizers Ltd., [1991] 1 S.C.R. 779; 123 N.R. 1, refd to. [para. 66].

Whitbread v. Walley et al., [1990] 3 S.C.R. 1273; 120 N.R. 109; 77 D.L.R.(4th) 25, refd to. [para. 66].

Terrasses Jewellers Inc. v. Triglav, [1983] 1 S.C.R. 283; 54 N.R. 321, refd to. [para. 66].

Canadian Pacific Railway Co. v. British Columbia (Attorney General), [1948] S.C.R. 373, affd. [1950] A.C. 122, refd to. [para. 69].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 76].

Rothmans, Benson & Hedges Inc. v. Saskatchewan et al., [2005] 1 S.C.R. 188; 331 N.R. 116; 257 Sask.R. 171; 342 W.A.C. 171; 2005 SCC 13, refd to. [para. 77].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 2001 SCC 67, refd to. [para. 77].

Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; 104 N.R. 110; 82 Sask.R. 120, refd to. [para. 77].

Sturmer and Beaverton (Town), Re (1911), 24 O.L.R. 65 (Div. Ct.), refd to. [para. 79].

M & D Farm Ltd. et al. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 245 N.R. 165; 138 Man.R.(2d) 161; 202 W.A.C. 161, refd to. [para. 82].

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1; 2003 SCC 55, refd to. [para. 96].

Commission du salaire minimum v. Bell Canada, [1966] S.C.R. 767, refd to. [para. 97].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 108].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 2001 SCC 40, refd to. [para. 113].

Hamilton Harbour Commissioners v. Hamilton (City) et al. (1978), 21 O.R.(2d) 491 (C.A.), refd to. [para. 121].

Holman v. Green (1881), 6 S.C.R. 707, refd to. [para. 128].

Reference Re Waters and Water-Powers, [1929] S.C.R. 200, refd to. [para. 129].

Air Canada v. Liquor Control Board (Ont.) et al., [1997] 2 S.C.R. 581; 214 N.R. 1; 102 O.A.C. 1, refd to. [para. 137].

Authors and Works Noticed:

Bakan, Joel, et al., Canadian Constitutional Law (3rd Ed. 2003), pp. 254, 255 [para. 112].

Braën, André, Le droit maritime au Québec (1992), pp. 68 to 75 [para. 62].

Canada, Hansard, House of Commons Debates, vol. 135, 1st Sess., 36th Parliament (October 10, 1997), p. 766 [para. 45].

Canada, House of Commons, Report of the Standing Committee on Transport, A National Marine Strategy (1995), p. 6 [para. 45].

Elliot, Robin M., Constitutional Law - Division of Powers - Interjurisdictional Immunity, Reading Down and Pith and Substance: Ontario Public Service Employees Union v. Attorney General of Ontario (1988), 67 Can. Bar Rev. 523, generally [paras. 102, 105].

Gibson, Dale, Constitutional Law - Freedom of Commercial Expression under the Charter - Legislative Jurisdiction over Advertising - A Representative Ruling: Attorney General of Quebec v. Irwin Toy Limited (1990), 69 Can. Bar Rev. 339, generally [para. 99].

Gibson, Dale, Interjurisdictional immunity in Canadian Federalism (1969), 47 Can. Bar Rev. 40, generally [para. 99].

Hansard - see Canada, Hansard, House of Commons Debates.

Hogg, Peter W., and Monahan, Patrick J., Liability of the Crown (3rd Ed. 2000), generally [para. 122].

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), pp. 329 to 332 [para. 100].

Hogg, Peter W., Constitutional Law of Canada (1997 Looseleaf Ed.) (2005 Update, Release 1), vol. 1, pp. 15-6, 15-7 [para. 95]; 15-25 [para. 95 et seq.]; 15-26 [paras. 98, 101, 118]; 15-26, fn. 116 [para. 98]; 15-27 [paras. 97, 110, 118]; 15-28 [paras. 110, 118]; 15-28, fn. 129 [para. 100]; 15-30 [para. 100]; 15-33 [para. 115]; 15-34 [para. 108]; 16-4 to 16-8 [para. 112]; 16-9, 16-10 [para. 113]; 22-20 [para. 129]; 28-2 [paras. 56, 122, 123].

La Forest, Gérard V., Natural Resources and Public Property under the Canadian Constitution (1969), pp. 58 [para. 123]; 135 [para. 56].

Leclair, Jean, L'étendue du pouvoir constitutionnel des provinces et de l'État central en matière d'évaluation des incidences environnementales au Canada (1995), 21 Queen's L.J. 37, generally [para. 99].

Leclair, Jean, The Supreme Court of Canada's Understanding of Federalism: Efficiency at the Expense of Diversity (2003), 28 Queen's L.J. 411, generally [para. 99].

Magnet, Joseph Eliot, Constitutional Law of Canada: Cases Notes and Materials, Research Note: The Difference Between Paramountcy and Interjurisdictional Immunity (8th Ed. 2001), vol. 1, pp. 339 [para. 104]; 341 [para. 102].

Monahan, Patrick J., Constitutional Law (2nd Ed. 2002), pp. 111, 112 [para. 123]; 117 [para. 95]; 123 to 126 [para. 118]; 123, fn. 67 [paras. 96, 111]; 124 [para. 96]; 127 [para. 112].

Wilkins, Kerry, Of Provinces and Section 35 Rights (1999), 22 Dal. L.J. 185, pp. 206, 207 [para. 102].

Counsel:

Nancy E. Brown and Nathalie Hepburn Barnes, for the appellant;

James Sullivan and Gloria Chao, for the respondent, Lafarge Canada Inc.;

D. Geoffrey Cowper, Q.C., and W. Stanley Martin, for the respondent, Vancouver Port Authority;

Patsy J. Scheer, for the respondent, City of Vancouver;

No one appeared for the respondent, Burrardview Neighbourhood Association;

Peter M. Southey, for the intervenor, Attorney General of Canada;

Shaun Nakatsuru and Mark Crow, for the intervenor, Attorney General of Ontario;

Alain Gingras, for the intevenor, Attorney General of Quebec;

Written submissions only by John G. Furey, for the intervenor, Attorney General of New Brunswick;

Robert J. Normey and Nick Parker, for the intervenor, Attorney General of Alberta.

Solicitors of Record:

Attorney General of British Columbia, Victoria, British Columbia, for the appellant;

Blake, Cassels & Graydon, Vancouver, British Columbia, for the respondent, Lafarge Canada Inc.;

Fasken Martineau DuMoulin, Vancouver, British Columbia, for the respondent, Vancouver Port Authority;

City of Vancouver, Vancouver, British Columbia, for the respondent, City of Vancouver;

Attorney General of Canada, Toronto, Ontario, for the intervenor, Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervenor, Attorney General of New Brunswick;

Attorney General of Alberta, Edmonton, Alberta, for the intervenor, Attorney General of Alberta.

This appeal was heard on November 8, 2005, before Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On May 31, 2007, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Binnie and LeBel, JJ. (Deschamps, Fish, Abella and Charron, JJ., concurring) - see paragraphs 1 to 91;

Bastarache, J. - see paragraphs 92 to 143.