BC Supreme Court finds that if an administrative decision-maker is going to veer off its typical course in a decision, it needs to provide sufficient reasons to explain and justify its departure from the norm

21. February 2023 0

Administrative law – Decisions reviewed – Municipal boards – Planning and zoning – Intervenor status – Judicial review – Procedural requirements and fairness – Delay – Failure to provide reasons – Standard of review – Correctness – Unreasonableness

Beedie (Keefer Street) Holdings Ltd. v. Vancouver (City), [2022] B.C.J. No. 2392, 2022 BCSC 2150, British Columbia Supreme Court, December 9, 2022, J. Brongers J.

The petitioner brought this judicial review to challenge the City of Vancouver Development Permit Board’s (the “Board”) decision to deny its application (the “Application”) for a development permit for a proposed 9-storey mixed residential-retail building to be located on its property in Chinatown (the “Property”).

The petitioner claimed that the Board’s decision was made in bad faith and without affording the petitioner procedural fairness for several reasons, and that the decision is substantively unreasonable.

The Independent Contractors and Business Association and Urban Development Institute – Pacific Region were granted intervenor status. They urged the judicial review judge to consider the importance of fairness when dealing with municipal development permitting authorities. They argued that the permitting regime needed to be sufficiently transparent to facilitate developers proposing and building residential developments.

The City argued that the petitioner’s application for judicial review ought to be dismissed on the basis that it is untimely. The judicial review judge denied this request, holding that the discretion to dismiss a judicial review for delay can only be exercised in situations where the delay is unreasonable, which was not the case here. The judicial review judge arrived at this decision weighing several factors including, the underlying administrative scheme and whether it is undermined by delay, whether the issue is of critical importance to the parties, and whether the delay will result in hardship, prejudice or injustice.

The judicial review judge applied the standard of correctness (i.e., whether the rules of procedural fairness or natural justice have been adhered to by the Board) to the issues of procedural fairness and bad faith; and the standard of reasonableness to the issues regarding the merits of the Board’s decision.

The judicial review judge rejected the petitioner’s argument that the Board’s decision was made in bad faith and without affording the petitioner procedural fairness. The judicial review judge was not convinced that the Board’s reliance on prewritten scripts prepared by a tribunal staff member, containing rationales for approving and rejecting the Application, indicated the Board’s decision was unfair and made in bad faith. There was no evidence of improper delegation. Furthermore, the Board was not required to disclose the draft scripts to the petitioner to provide an opportunity to respond, as the petitioner knew the issues addressed in the scripts and had already had the opportunity to respond to them. The judge noted that there is a presumption of good faith, here, and a finding of bad faith should only be made if there is no other rational conclusion. The evidence was that the Board confined its reasons to the design merits, so the petitioner’s unsubstantiated argument that the Board was motivated by political or other irrelevant consideration was rejected. The judge also rejected the petitioner’s argument that it was treated unfairly based on evidence that the Board had approved similar projects in the Chinatown neighbourhood, pointing out that it is a well-established principle of administrative law that inconsistency in tribunal decision-making is not a stand-alone ground of judicial review. Given the presumption of regularity, further evidence to substantiate such a serious allegation must be provided.

However, the judicial review judge accepted that the Board’s decision was unreasonable for failing to provide adequate reasons. The evidence revealed that out of 111 development permit applications considered by the Board between 2012 and 2017, the petitioner’s was the only one that was refused outright by the Board. The judicial review judge found that in these circumstances, the Board had a burden to explain and justify its departure from the norm in its reasons, which it failed to do, thereby making its decision unreasonable. As a result, the judicial review judge allowed the petitioner’s Application, set aside the Board’s decision to dismiss the petitioner’s Application, and remitted the decision to the Board to reconsider the Application.

This case was digested by Renee Gagnon, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Renee Gagnon at rgagnon@harpergrey.com.

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