Democracy and the Role of Courts

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Originally Published Feb.16, 2016, written by Nerys Poole

Uh, oh, I hear you say – “Yawn, this one for the recycling bin.”  “No, No,” I say – “give me a chance.”  Read on before you cast this aside.

As I sat in the B.C. Supreme Court a few weeks ago, listening to the latest challenge to a bylaw of our island municipality, I recalled my introduction to and fascination with administrative law, a required course in first year law school.  Many of my classmates found it incredibly boring but I loved it.  This was the reason I went to law school.  As a mature student, I had chosen to go to law school partly because of my desire to understand our legal system and how it can be used to bring about change in society.   Because of my activism on a number of social issues, I wanted this knowledge: What is meant by jurisdiction? What is fairness in the legal context? What is justice?  Where are the limits of political and judicial power?

Administrative law is based on the principle that government action, whatever form it takes, must be legal, and that citizens who are affected by unlawful acts of government officials must have effective remedies if the Canadian system of public administration is to be accepted and maintained.

To bring this principle back to the case recently heard before the Supreme Court, we have two Bowen Island landowners, Shu Lin Dong and Zhen Wang,  unhappy with the docks bylaw passed by this current Council, applying to court to overturn the bylaw.

What do the courts generally do with such challenges?  Over the years, judges have developed a number of principles when reviewing decisions of elected officials.  Unless there is some major defect in the process leading up to a decision, or the passing of a bylaw, e.g. a failure to give the required proper notice of the public hearing – judges take a very “hands off” or deferential approach to these decisions.  And rightly so.  This, to me, is the essence of our democracy.  We elect people to represent us – whether municipal, provincial or federal.  In doing so, we expect these people to make decisions on our behalf, to follow through where possible on their campaign commitments and not to have their decisions overturned by unelected officials like judges.

You may believe that a bylaw is wrong – that is your right.  But it is not your right to have it overturned just because you believe it is wrong or maybe even unfair to you or your neighbours.  With respect to something like this bylaw, zoning bylaws by their very nature are not fair and treat landowners differently.  I may want to build a hotel on my property or a widget factory, but if my property is zoned residential, I am forbidden from doing so – for very good reasons.  If you as a citizen are unhappy with a decision of your elected official(s), and the decision was passed fairly in accordance with all procedures, your remedy is at the ballot box.  The courts have been very clear about this principle.

To quote a 2012 decision of our Supreme Court of Canada:

“The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation.  Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature.  Bylaws are not quasi-judicial decisions.  Rather, they involve an array of social, economic, political and other non-legal considerations.  “Municipal governments are democratic institutions”, per LeBel J. for the majority in Pacific National Investments Ltd. v. Victoria (City), [2000] 2 S.C.R. 919, at para. 33.  In this context, reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable.”

Court challenges may be one way for an angry citizen to express his/her displeasure at what an elected body is doing.  However, the threat of litigation is too often used as a tool to stifle legitimate and considered decision-making by an elected body.  One need only look at the views expressed by one of our councillors during the third reading debate on the docks bylaw (Dong’s lawyer showed the video of this during the hearing), who, despite not being a lawyer, stated: “we know this bylaw will be challenged and challenged successfully.”

These kinds of threats have a real chilling effect on municipalities like ours where taxpayers often end up paying the costs of litigation even when the municipality is successful.  A good example of this is the Duntz & Underhill v. BIM lawsuit, a challenge to our Official Community Plan that was heard by the Supreme Court in 2011.  The court dismissed the challenge and awarded costs to BIM just prior to the 2011 election.  Despite this, the newly elected council of 2011 made a decision to waive the collection of these costs and they were never collected.  Even when the successful party collects costs, they rarely represent the actual legal costs of a lawsuit.

The threat of litigation should never be a deterrent to a duly elected Council in its decision making.  Yes, the Council should be making any decisions with full legal advice but should not back off in the face of such threats.  I applaud our Council members who voted for the docks bylaw.  I look forward to the outcome of the Dong lawsuit.  Mr. Justice Punnett heard the case on February 1 and 2, 2016 and reserved his decision.

Submitted by Nerys Poole, a retired lawyer who practiced constitutional and administrative law

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