Residents and Ratepayers of Central Saanich Society v. Saanich (District) et al., (2011) 309 B.C.A.C. 96 (CA)

• Judge: Garson, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 12, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 309 B.C.A.C. 96 (CA);2011 BCCA 340

Residents & Ratepayers v. Saanich (2011), 309 B.C.A.C. 96 (CA);

    523 W.A.C. 96

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.017

Residents and Ratepayers of Central Saanich Society (appellant/petitioner) v. Corporation of the District of Central Saanich and Ian Vantreight (respondents/respondents)

(CA039035; 2011 BCCA 340)

Indexed As: Residents and Ratepayers of Central Saanich Society v. Saanich (District) et al.

British Columbia Court of Appeal

Garson, J.A.

August 11, 2011.

Summary:

A non-profit Society petitioned to quash a bylaw passed by the District of Central Saanich.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 491, dismissed the petition. The Society appealed. The District applied for security for costs.

The British Columbia Court of Appeal, per Garson, J.A., allowed the application.

Practice - Topic 8206.2

Costs - Security for costs - Security for costs of an appeal - Application - Considerations - A non-profit Society appealed the dismissal of its petition to quash a bylaw passed by the District of Central Saanich - The District applied for security for costs - The British Columbia Court of Appeal, per Garson, J.A., stated that the application of the usual test would result in an order for security - That was so because the Society had no assets and the appeal costs would not be readily recoverable unless individual members of the Society volunteered to be responsible for costs - There was no evidence of such volunteers - However, it could not be said that the appeal lacked merit or that the application was untimely - The question therefore was whether the presumption was rebutted on account of the public interest nature of the litigation - Although the case raised some questions of law relating to the interpretation of the Local Government Act, the real issue was whether "this" bylaw conflicted with "this" official community plan - It did not require the resolution of broad legal questions that had not previously been resolved - The dispute was not of such gravity and wide importance that it transcended the parties' interest - Moreover, the Society had not tendered evidence that it could not or would not be in a position to pay the security - Rather, it asserted that to do so was an unfair or unreasonable burden to impose upon it - Also, the municipality did not have unlimited resources with which to defend legal challenges to its resolutions - The court ordered the Society to post security.

Cases Noticed:

Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.C. 237; 2009 BCCA 563, dist. [para. 1].

Rogers v. Saanich (District) (1983), 146 D.L.R.(3d) 475 (B.C.S.C.), refd to. [para. 6].

Western ARP Services Ltd. v. Capital (Regional District) (1986), 10 B.C.L.R.(2d) 63 (C.A.), refd to. [para. 6].

McLean Lake Residents' Association v. Whitehorse (City) (2009), 274 B.C.A.C. 296; 463 W.A.C. 296; 2009 YKCA 11, refd to. [para. 6].

Southeast Toyota Distributors Inc. v. Branch et al. (1997), 99 B.C.A.C. 12; 162 W.A.C. 12; 45 B.C.L.R.(3d) 163 (C.A.), refd to. [para. 14].

Edwards v. Moran (2003), 186 B.C.A.C. 31; 306 W.A.C. 31; 2003 BCCA 443, refd to. [para. 15].

Coalition of Citizens for a Charter Challenge v. Metropolitan Authority et al. (1993), 122 N.S.R.(2d) 1; 338 A.P.R. 1; 103 D.L.R.(4th) 409 (S.C.), affd. (1993), 125 N.S.R.(2d) 241; 349 A.P.R. 241; 108 D.L.R.(4th) 145 (C.A.), refd to. [para. 22].

Lancefort Ltd. v. An Bord Pleanala & Ors, [1998] 2 IR 511, refd to. [para. 25].

Village Residents Association Ltd. v. An Bord Pleanala, [2000] I.E.H.C. 34, refd to. [para. 26].

Pierse Desmond Ltd. v. Deirdre Nicfhionnlaoich, 2011 IEHC 145, refd to. [para. 28].

Millstream Recycling Ltd. v. Tierney (Gerald) and Newton Lodge Ltd., 2010 IEHC 55, refd to. [para. 28].

Digital Rights Ireland Ltd. v. Minister for Communication, Marine and Natural Resources, 2010 IEHC 221, refd to. [para. 28].

Lindholm et al. v. Hy-Wave Inc. et al. (1997), 89 B.C.A.C. 197; 145 W.A.C. 197 (C.A.), refd to. [para. 32].

Maughan v. University of British Columbia et al., [2008] B.C.A.C. Uned. 92; 2008 BCCA 295, refd to. [para. 32].

Counsel:

R.J. Gage, for the appellant;

A.D. Bradley, for the respondent.

This application was heard in Chambers, at Vancouver, British Columbia, on July 12, 2011, by Garson, J.A., of the British Columbia Court of Appeal, who delivered the following judgment for the Court of Appeal on August 11, 2011.