Court of Appeal finds the BC government went too far when trying to fast-track a Kitsilano housing development

The Appellant, Coalition for Children & Family Safety Society, was successful in appealing a summary trial decision. The summary trial judge had dismissed the Coalition’s action seeking a declaration that the legislature’s Bill 26 was contrary to section 96 of the Constitution Act, 1867. The Court of Appeal allowed the Coalition’s appeal.

Administrative law – Municipalities – Powers – By-laws – Planning and zoning – Legislation – Jurisdiction – Federal vs. provincial legislation – Constitutional issues – Judicial review – Appeals  

Kitsilano Coalition for Children & Family Safety Society v. British Columbia (Attorney General), [2024] B.C.J. No. 2388, British Columbia Court of Appeal, December 23, 2024, M.V. Newbury, P. Abrioux and J.C. Grauer JJ.A.

In 2021, the City of Vancouver planned to build a 12-storey housing development with 140 studio apartments on land located on Arbutus Street in Vancouver. Approximately half of the units were to be open to low-income residents, with the other half of the units tied to support services.

The Arbutus development required that the land be rezoned to permit such use. This meant that the City was required to amend its Zoning and Development Bylaw. The Appellant, Kitsilano Coalition for Children & Family Safety Society, was incorporated in 2021. The City of Vancouver held a public hearing in 2022. In July 2022, the majority of City Council gave approval, in principle, to the rezoning. In October 2022, the Coalition filed a petition for judicial review. 

In April 2023, before the petition could be heard, the Provincial government introduced Bill 26, the Municipal Enabling and Validating Act (No. 5), S.B.C. 2023, c. 3 (“MEVA 5”). MEVA 5 came into force on May 11, 2023. 

The Coalition filed a new petition on May 25, 2023, seeking a declaration that MEVA 5 was “contrary to section 96 of the Constitution Act, 1867, and of no force and effect under section 52 of the Constitution Act, 1867.”

The parties (the Coalition and the Respondent, Attorney General of British Columbia) agreed that the petition was suitable for summary trial. The proceeding was then converted to an action, which was heard in October 2023. The trial judge posed the question as:  “Does MEVA 5 contravene s. 96?”. The trial judge asked whether MEVA 5 “impermissibly interferes with this court’s ‘core jurisdiction’ in its adjudication of the Coalition’s pending application for judicial review.” The trial judge dismissed the Coalition’s action.

On appeal, the Coalition argued that the trial judge erred by: (1) interpreting the MEVA 5 as creating a “legislated exception” (i.e. a substantive amendment) to the existing law, rather than directing a particular legal outcome; (2) distinguishing the 5185603 Manitoba Ltd. case, and relying instead on the Barbour case; (3) relying upon previous British Columbia authorities that did not address or consider the constitutional issue raised in these proceedings; and (4) by failing to take into account the constitutional importance of section 96.

The Court of Appeal held the standard of review for constitutional questions was correctness. 

The Court of Appeal held that the cases of Highland Copper, Barbour and others in the line of cases were clearly distinguishable. The Court of Appeal reasoned that, in those cases, the legislature changed a statutory provision and formulated a ‘new’ statutory provision that was deemed to have existed retroactively. 

The Court of Appeal held that, based on MEVA 5, the court was left with no adjudicative role after the so-called amendments. This infringes on the Court’s adjudicative role, contrary to section 96.

The Court of Appeal allowed the appeal and granted a declaration that MEVA 5 is contrary to s. 96 of the Constitution Act, 1867 and is of no force or effect under s. 52(1) of the Constitution Act, 1867.

This case was digested by Scott J. Marcinkow of Harper Grey LLP 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 feel free to contact him directly at [email protected].