Victory in Supreme Court

Docks Bylaw Lawsuit Dismissed

(April 4th, 2015) It’s been almost a year since Bowen Municipal Council passed the Docks Bylaw, preventing applications for new docks at Cape Roger Curtis. It was a controversial decision, taken under threat of a lawsuit. It’s a great time to thank Council for their decision, and congratulate them on weathering the storm so far.Write a message to all the councilors at once. Though not all councilors voted in favour of the bylaw, it reminds everyone of your support for it.

On March 31st, The Honourable Mr. Justice Punnett delivered his judgement on the case Shu Lin Dong and Zhen Wang vs. Bowen Island Municipality. He dismissed the lawsuit and awarded costs to the Municipality. For supporters of our current council and Stop the Docks, this is a clear victory and vindication of several years of effort.

The two Cape Roger Curtis waterfront property owners challenged the bylaw, claiming that:

  • the bylaw was inconsistent with the Official Community Plan,
  • therefore it was beyond the Council’s authority (‘ultra vires’),
  • it was passed too fast and in bad faith,
  • it was discriminatory,
  • public consultation on the bylaw was inadequate,
  • disclosure to the public before the bylaw was passed was deficient,
  • when the bylaw was passed, some councillors failed to consider the matter 
  • and there was a lack of procedural fairness when the bylaw was passed.

Mr. Justice Punnett dismissed every one of these grounds. He upheld the bylaw and Council’s right to pass such a bylaw. See excerpts below.

In the 45-page B.C. Supreme Court decision, Justice Punnett explains the story behind the lawsuit, the applicable precedents, and his findings on each point.
View the decision (PDF)
or on the Courts of British Columbia website.

[79] While the petitioners assert they have been targeted or singled out, the evidence is that after the first three docks were built public concern grew and the petitioners’ applications to build docks increased that concern. In the context of the Official Community Plan and the prospect of numerous and substantial docks in the area, such concerns are understandable. This does not mean the petitioners were targeted. …

[81] In my opinion Bylaw No. 381 was within the jurisdiction of the Municipal Council under the Islands Trust Act, R.S.B.C. 1996, c. 239, the Islands Trust Policy Statement and the Local Government Act. The petitioner has failed to show that the public interest was not the basis for the decision of the majority of the Municipal Council who voted to adopt Bylaw No. 381. The petitioner has not shown there was some other motive or basis for adopting that bylaw. …

[82] The petitioner alleges that by refusing permission to Cape Roger Curtis property owners to build moorage structures Bylaw No. 381 is discriminatory and therefore illegal. [83] Zoning bylaws are by their nature inherently discriminatory, in that some uses are permitted and some are not. Section 479(4), formerly 903 (3) of the Local Government Act expressly authorizes bylaws that may be different for different zones. …

[93] There is no evidence that the councillors voting in favour of Bylaw No. 381 did so without regard for the public interest. Indeed the level of interest in the issue and the comprehensive information provided to the public and to council would accentuate the public interest. The evidence does not show that the council members ignored or failed to consider all relevant factors and issues. …

[97] … I find no discrimination in law. The evidence does not establish any improper motive, purpose or other irrelevant considerations by Municipal Council.

[125] There is no evidence that the Municipality limited or attempted to limit public debate. There is no evidence that anyone was prevented from saying anything at the public hearing. All who wished to speak were permitted to do so. …

[129] With respect to the allegation that the Municipality passed the bylaw as quickly as possible, which the petitioners say leads to the inference that they were trying to trump the tenure approvals and limit public debate, the evidence does not indicate that to be the case.

[133] The “legitimate expectation” relied on by the petitioners is that the existing regulatory framework would not be changed from the time they initially applied to build a dock and their approval and completion. The doctrine’s application however does not have the substantive effect the petitioners suggest.

[135] Because the decision in question was legislative as opposed to administrative the doctrine does not apply. As a result not only did the petitioners not initially have a “right” to the zoning that permitted a private moorage for every lot nor do they have a “right” to that zoning never being altered.

[137] I do not accept the petitioners submission that the overall situation is that the petitioners are “victims of a ruthless bylaw that was passed to target the petitioners for no justifiable reason”. In my view the bylaw, while prompted by concerns raised by the grandfathered docks and the petitioners’ proposed docks, does not target the petitioners nor is there “no justifiable reason”. The Official Community Plan encompasses broader issues affecting the public interest, an interest that is clearly of significance given the subject is the construction of moorage facilities on the foreshore and into the sea, areas that are Crown property and are open to public access. …

[138] Nor do I accept that the Municipal Council prejudiced and deprived the petitioners of rights because “subjectively” they did not like the view and on a “whim” they deprived the petitioners’ of substantive rights attached to their land. That characterization ignores the fact that the Official Community Plan includes the issue of viewscapes and public access.

[139] The petitioners’ argument in essence, as noted in para. 16(d) of the petition where they allege the Municipality “failed to come to a reasonable solution,” is that the Municipality was obliged to behave reasonably in a manner that favoured the petitioners. It is not for this Court to substitute its decision for that of the Municipal Council where they have acted lawfully and within their authority. As noted in Pollard at para. 51:
… A municipal council acting within its statutory powers is answerable to the electorate and to the Legislature. It is not answerable to this or any other Court.

[140] The petition is dismissed with costs to the respondent.

NOTE: an additional lawsuit filed by Zongshen (Canada), owner of lots 1 and 14 at the Cape, is still pending. Because it is based on very similar grounds to the previous actions, we’re optimistic that it too will be rebuffed.

Presentation to Islands Trust by Melissa Harrison

Read her insightful and articulate exposé on the Stop The Docks website.