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| Sara Blake |
Claims concerning a municipality’s refusal to up-zone a plaintiff’s property were routinely dismissed without the need for a trial. Now the door has been opened to situations that would not have met the test and the boundaries of the law have become fuzzy. The new boundaries will need to be redeveloped on a case-by-case basis, after a full factual record developed by way of a trial.
Litigation lawyers who represent developers must be dreaming of the fine houses they will be able to buy with the legal fees earned from these trials.
The majority of the court has opened the door to endless litigation against municipalities, at the expense of taxpayers. This was noted by the dissent who said that the majority’s “opinion risks radically changing the complexion of municipal planning law by providing, in like up-zoning contexts, a windfall to developers who speculate at municipal taxpayers’ expense.”
The plaintiff had bought a vacant piece of wilderness adjacent to a protected wilderness area, speculating that, someday, the municipality might be persuaded to zone it to be developed. The plaintiff’s application for it to be zoned for a housing development was refused by the municipality, “at this time.”
The majority of the court distinguished the previous case on this subject, Canadian Pacific Railway Co. v. Vancouver (City) 2006 SCC 5, because that municipality was protected from these lawsuits by an immunity provision. Section 569 of the Vancouver Charter, SBC 1953, c 55, states that property is “deemed as against the city not to have been taken or injuriously affected by reason of the exercise of any [planning or zoning] powers … and no compensation shall be payable by the city.”
Municipalities are well advised to check whether their statutes provide similar statutory immunity and, if not, to make an urgent appeal to their provincial government to get one enacted and, if necessary, to make it retroactive.
As for the reasons for the revised test, I cannot do better than the dissent’s critique of the majority opinion. There is no need for me to weigh in.
We will never know why the majority felt a need to disturb this well-established tort in this case, given that this plaintiff’s claims of abuse of public office and unjust enrichment will go to trial in any event. If these claims are proven, the plaintiff can be adequately compensated in damages. There was no need to disturb the tort of constructive (de facto) expropriation.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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