BC Supreme Court finds Minister’s decision to cancel licence for public safety concerns is reasonable

Application for judicial review of decision cancelling license of occupation under Land Act, R.S.B.C. 1996, c. 245‎.

Administrative Law – Decisions reviewed – Judicial Review – Licences – Ministerial – Natural resources – Public interest – Reasonableness – Standard of Review

Falkenstein v. British Columbia (Ministry of Forests Lands and Natural Resource Operations), [2017] B.C.J. No. 502, 2017 BCSC 421, British Columbia Supreme Court, March 16, 2017, L.A. Warren J.

The applicants held a license of occupation in respect of lands on Diamond Island, located in the Fraser River near Quesnel, issued by the Minister of Forests, Lands and Natural Resource Operations under the Land Act, R.S.B.C. 1996, c. 245 (the “Act”).

The applicants’ access to the property was by bridge from the mainland. They had non-exclusive rights, meaning there was no prohibition against members of the public using the bridge. A condition of the license required the applicants to keep the bridge in a safe condition and maintain it in compliance with a professional engineer’s standards and to the Minister’s satisfaction. The Minister was entitled to cancel the license for breach of the conditions on notice to the applicants.

In 2012, issues arose with the dangerous condition of the bridge. From 2012 to 2015, the applicants and Minister corresponded regarding necessary repairs to the bridge in accordance with the terms of the license, with various extensions of the Minister’s right to cancel the license. Over that period the applicants put forward one repair plan approved by a professional engineer, at a cost of ‎$500,000.00, but were not prepared to undertake the repairs.

In February 2015, the Minister cancelled the license. The applicants applied for judicial review of the Minister’s decision.

On judicial review, the Supreme Court held the Minister’s decision was reasonable.

The terms of the license required the Minister to act reasonably and the Act required the Minister to act in the public interest. Ministerial regulation in the public interest is accorded a “high degree of deference” (see: Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41 at para. 58).

The Minister was entitled to cancel the license if the applicant’s default was not remedied in the required time. The applicants were granted numerous extensions over more than two years. The Minister approved the only viable proposal advanced by the applicants addressing the significant public safety concerns. The applicants did not implement those approved repairs.

The application for judicial review was dismissed. The applicants were able to apply for a new license by submitting an alternative proposal regarding bridge repairs.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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