(1) DRIPA incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the domestic law of British Columbia, as an interpretive aid; 

(2) the Crown has a statutory mandate under DRIPA to ensure that laws in British Columbia are consistent with UNDRIP; and 

(3) in certain circumstances, courts can determine whether a law of British Columbia is consistent with UNDRIP. 

While a court will not invalidate or strike down a law based on inconsistency with UNDRIP – which is an international human rights instrument first adopted by the United Nations General Assembly – it can issue a declaration stating the inconsistency. Such a declaration would form a basis for informing the Crown’s statutory obligation to consult in respect of the consistency of its laws. 

Gitxaala arose from a judicial review of the Province’s decision to operate an automated online registry system in respect of mineral rights. Under this system, “free miners” are able to register claims to mineral rights on Crown land prior to any constitutional consultation taking place between the Crown and an affected First Nation. The two First Nations at issue, Gitxaala and Ehattesaht, argued both that the Crown breached the duty to consult by maintaining these decisions, and that the Mineral Tenure Act was inconsistent with UNDRIP. In the Supreme Court of British Columbia, the Nations were successful on the first issue, but not the second. On the UNDRIP issue, the BC Supreme Court found that nothing in DRIPA indicated that a court should adjudicate the issue of consistency between UNDRIP and a law of British Columbia. 

A majority of the Court of Appeal disagreed with this conclusion, holding that DRIPA – and in particular sections 2 and 3 – imposes a positive obligation on the Crown to “take all measures necessary” to ensure that all the laws of British Columbia are consistent with UNDRIP. Compliance with this obligation may require legislative, executive, or administrative action. In the context of the case, the Court of Appeal found that the Crown could potentially comply with this duty either through the tabling of amendments to the Mineral Tenure Act or through policy changes regarding the “free miner” system. 

The majority also confirmed that section 8.1 of the Interpretation Act, which requires that all laws of British Columbia be interpreted in a manner that is consistent with UNDRIP, has significant effects. This provision means that all laws will be construed as consistent with UNDRIP unless they show a contrary intention. Applying this principle, the majority found that the Mineral Tenure Act was inconsistent with article 32(2) of UNDRIP, which states: 

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Notably, the Province did not advance the position on appeal that the Mineral Tenure Act was consistent with UNDRIP and instead relied wholly on the position that relief of the kind sought by the Gitxaala and Ehattesaht was unavailable on a reading of DRIPA. Accordingly, the Court did not engage in a detailed consideration of Article 32(2) or other articles of UNDRIP.

While Gitxaala arose in relation to the effects of a provincial statue on Crown land, the effects of the decision are broader than this and will certainly be felt by local governments in British Columbia. While local governments are not bound by section 3 of DRIPA, because they are not the “government” and therefore do not have to “take all measures necessary” to align their laws with UNDRIP, a First Nation wishing to challenge a local government decision may now argue that the decision is incompatible with an UNDRIP-consistent interpretation of the statutory provision under which it is made, including for reasons of the local government’s failure to properly consult the First Nation in accordance with UNDRIP before making it.  Alternatively, the First Nation may seek a declaration that the statutory provision is simply inconsistent with UNDRIP and must therefore be dealt with by the Legislature.  How a court would adjudicate such challenges would be specific to the applicable facts of the case and the articles of UNDRIP that are engaged. 

This bulletin has not reviewed the reasons of the dissenting judge, but we simply note that the presence of a dissent in our Court of Appeal (which is rare) indicates the controversy attached to this matter. Also indicative of this controversy, as well as the far-reaching consequences of the ruling, are statements made by both the Premier and the leader of the opposition. Premier Eby, who introduced the legislation as Attorney General in 2018, has indicated that the government will review the decision and “if necessary, amend the Declaration Act”.  Meanwhile, the new Conservative leader, Trevor Halford, has stated that the BC Conservatives will “work co-operatively” to repeal the legislation completely. 

Reece Harding and Nick Falzon 

Section 35 of the PLA allows the court to cancel charges against land on five grounds.  Two of those grounds were engaged in the Watermark case: (i) the charge was obsolete, and (ii) cancellation of the charge would not injure the person entitled to its benefit.  The covenant in question had been registered in 2007 as a condition of rezoning and subdivision approval and prohibited construction of buildings to protect a portion of a corridor for a future roadway project extending from Kelowna’s downtown to the Okanagan campus of UBC, and comprising three segments. Construction of Segment 1 (closest to the downtown) was included in the OCP and Transportation Management Plan (TMP), both of which had 20-year planning horizons out to 2040.  For Segment 2, the cost of land acquisition (but not construction) was also included in the OCP and TMP.  The final leg, Segment 3, which included the portion covered by the covenant over Watermark’s lands, was not included in the OCP or TMP.  Watermark argued that this amounted to abandonment of that portion of the road project by Kelowna, rendering the covenant being obsolete.

The appeal court observed that the project had evolved in scope (going from a four-lane road with interchanges to two lanes) and been much delayed from its 2007 vision when it was anticipated that Segments 1 and 2 would be completed within the next 3 years; progress since had been “glacial” in the words of the Court.  However, there had been no express abandonment of Segment 3. Nor had there been any actions or expressions of interest that could constitute “effective abandonment”, the Court noting steps taken more recently by Kelowna to protect other portions of the road corridor in Segment 3.  While acknowledging that these steps did not amount to a commitment to proceed with completion of Segment 3, and that the plan was subject to future budgeting and feasibility studies, that was “different from being abandoned” and thus did not satisfy the properly understood definition of “obsolete” under s. 35.

Addressing the chambers judge’s more specific observations going to the finding of obsolescence, the appeal court stated that:

1. the length of the timeframe for realizing the project was irrelevant, as long as “the plan remains in play”, rejecting the lower court’s reliance on a case where a no-build covenant had been cancelled just 4 years after registration as establishing a benchmark for an excessive timeframe;
2. the fact that the eventual construction of Segment 3 was uncertain did not render its future a matter of “pure speculation” in the context of the City’s sequential planning of the three segments; and
3. the lower court’s finding that the City had abandoned the historical vision of the road project in favour of a “patchwork extension” was a palpable and overriding error; the purpose underlying the protection had not been abandoned; the three segments were always seen as sequential sections of a planned continuum. 

Summing up, the appeal court accepted that planning beyond 2040, with no funding having been committed, could be described as “speculative”.  However, the kind of road project at issue involved “planning long into the future”. So long as the prospect of proceeding with Segment 3 “remains realistically in contemplation”, the protection of the corridor was not obsolete within the meaning of s. 35 of the PLA. 

With respect to the further ground that cancellation of the covenant would not injure the City, the chambers judge was found to have erred by balancing the interests of the City with those of the landowner. Properly interpreted, s. 35(2)(d) does not involve a balancing of interests.  Depriving the City of its legal right under the covenant would have serious consequences by adding significant expense to the project, equating to a real injury to Kelowna.

The Court of Appeal’s decision in Watermark is a welcome acknowledgement of the realities facing local governments in planning for future infrastructure projects.  Orderly planning and delivery of such projects would be adversely affected if protective charges could be cancelled by courts applying a watered-down standard of “effective abandonment” arising out of long timeframes for project realization.

Hopefully, the decision will assist in maintaining the effectiveness of no-build and other protective covenants as useful planning tools.

Barry Williamson

Fee simple title is, in general terms, as close to absolute ownership as exists in the Canadian system of property law. As homeowners know, fee simple title carries with it a right of exclusive use and occupation. While fee simple titles are subject to regulation by the government, and the exercise of rights on fee simple titles is also limited by common law principles like the law of nuisance, fee simple title has always been reliable, secure, and constant. 

Aboriginal title is a concept that courts have found to be recognized by section 35 of the Constitution Act, which states that “the existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognized and affirmed”. Aboriginal title, like fee simple title, is a form of land ownership that carries with it an exclusive right of use and occupation. However, unlike fee simple, which is registered in a land title system created provincially, Aboriginal title has been called by Canadian courts a sui generis interest. This means that Aboriginal title is “of its own kind, or “unique”. Canadian courts have said that Aboriginal title is a collective form of title that attaches to a particular indigenous body. It carries with it three things: (1) the right to exclusive use and occupation of the land; (2) the right to determine the uses to which the land is put; and (3) the right to enjoy the economic fruits of the land. 

Until the Cowichan Tribes decision, no court had ever directly grappled with a circumstance in which fee simple title was challenged as being invalid on the basis of a claim for Aboriginal title. That was exactly what was put to the Court in this case. Among other findings, the Court found that the Province of British Columbia has no jurisdiction to extinguish Aboriginal title through the granting of fee simple interests. 

While the decision is very lengthy and complex, and is being appealed, its implications could be far-reaching if upheld. If indigenous bodies can prove Aboriginal title to a fee simple parcel in British Columbia, then a Court may invalidate that title. The Court also appears to contemplate certain circumstances in which Aboriginal title and fee simple title might co-exist, with Aboriginal title as a “burden” on fee simple estates that were granted by the Province. How such titles could co-exist is not a question that the Court answers, as the specific remedy granted in relation to Richmond’s title allowed the Cowichan Tribes’ title to overcome and displace that of Richmond.

We will continue to report on this landmark case as we come to understand other implications that affect BC local governments.

Reece Harding, Gregg Cockrill & Nick Falzon

In Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, the Supreme Court of Canada had to decide whether the same access regime applies to wireless telecommunications infrastructure, specifically “5G small cell antennas.” The Court concluded it did not and that to install small cell equipment on local government infrastructure, telecom carriers must secure the local government’s agreement. 

The decision turned on the Court’s interpretation of the term “transmission line” (which is undefined in the Telecommunications Act), because the CRTC’s authority to grant access to telecom carriers under the Act only applies to transmission lines. If the term “transmission line” included wireless transmission infrastructure, then telecom carriers could use the CRTC access regime to install 5G small cell antennas on local government property; if it did not, then carriers would have to negotiate with local government. The Court held that wireless telecom infrastructure is not included within the ordinary meaning of “transmission line,” which is instead limited to transmission of intelligence along physical linear pathways. Antennas, which emit radio waves that travel through space, did not fit naturally within the ordinary meaning of transmission line. 

The carriers argued that the term “transmission line” ought to be read in harmony with Parliament’s broader policy objective of facilitating the “orderly development” of telecommunications. They said a broad interpretation of “transmission line” that includes antennas would best accord with Parliament’s objective by ensuring the efficient deployment of 5G infrastructure across the country. 

 A broader interpretation would clearly be favourable to telecom carriers because it would allow them to seek a CRTC order for access, despite any local government objections. However, the Court was not convinced. The Court noted that Parliament had no issue placing other limits on the scope of the telecom access regime and that the existence of a procedure for installing antennas under the Radiocommunications Act signalled Parliament’s intention to maintain a distinction between how wireless and wireline equipment ought to be treated. The Court concluded that Parliament intended to leave access to public property sites up to good faith negotiation between carriers and the relevant public authorities, including local governments. 

The Supreme Court’s ruling makes clear that until Parliament says otherwise, telecom carriers do not have the same right of access to install wireless infrastructure on local government land as they do for wired technology. Because the CRTC does not have jurisdiction to set the terms of access for small cell antenna installations, local governments can refuse to allow telecom carriers to use their infrastructure for 5G small cell antennas unless the carriers offer satisfactory terms, and the CRTC cannot interfere.

Nick Falzon has also written about this case in the firm's June 2025 Newsletter.

Ramon Dabiryan & Lynda Stokes

Prior to passing the resolutions, Council was provided with a staff report that contained information on the potential censure and sanction of the Mayor “for his actions in distributing/promoting” the book. The report set out four bullet points describing what were defined as the “Events” underlying the report – they were:

1. The distribution of the book by the Mayor’s wife;
2. The fact that the CAO informed the Mayor that the Lhtako Dene Nation was upset about the actions of the Mayor’s wife;
3. The fact that the Mayor said he had seen the book at his home but had not opened it; and
4. A report in local media that the Mayor himself attempted to distribute the book at a Regional District meeting.

The Mayor argued the resolutions were procedurally unfair because the staff report was ambiguous and did not clearly indicate that censure and sanctions would be decided, and that the staff report failed to provide specific details and evidence about the alleged misconduct. 

In response, the City argued the staff report provided sufficient information for the Mayor to understand the issues, and that the decision to censure and sanction was based on the Mayor’s leadership and accountability, not on the factual issues with respect to whether the Mayor was actually promoting the book.

The Court found that the staff report was not a clear and unambiguous document setting out the allegations that would underlie a motion of censure and sanction – that is the “case to be met” [at para. 164]. The first two Events underlying the report related to actions of persons other than the Mayor, and the third (the fact that he had seen the book but not opened it) was uncontroversial [at para. 167]. The Court recognized that the Mayor “personally attempt[ing] to distribute the book at a Regional District meeting” was a “substantive and active allegation,” but noted that Council proceeded on a different basis than this allegation. In its decision to adopt the resolutions, Council appeared to have “pivot[ed] to a new theory of the case against the Mayor – that the book does not matter, but that something had to be done to improve the relationship with the Lhtako Dene Nation and other Indigenous bodies that deteriorated as a result of the Mayor’s actions” [at para. 174]. In summary, the Court found that the City failed to observe procedural fairness by purporting to censure and sanction the Mayor based on a staff report that was “at best ambiguous and confusing” and deciding to censure and sanction the Mayor based on alleged misconduct different from the “Events” that were set out in the staff report.

Motions of censure have long been used by all levels of government to express disapproval of a member’s conduct. In the municipal context, the courts have affirmed that councils are entitled to use this procedure to respond to the conduct of their members, sourced from the relatively broad powers in sections 4 and 114 of the Community Charter for municipalities and their councils to control their own processes [Dupont v. Port Coquitlam (City), 2021 BCSC 728; Barnett v. Cariboo Regional District, 2009 BCSC 471; Skakun v. Prince George (City), 2011 BCSC 1796]. However, the power to censure for misconduct is one which must be exercised with great care and discretion. Municipal staff should ensure that staff reports prepared for these decisions provide an unambiguous factual record and a clear indication of the consequences at stake for the affected party. Councils should ensure that the misconduct they are voting to censure is in line with the information on the record before them and proceed on the basis outlined in the staff report. Failure to do so may attract criticism from the courts for improper observance of procedural fairness.

Jack Wells, Nick Falzon & Reece Harding

Local governments will likely recall completing a survey in September of 2024 for the OIPC – this survey was the foundation of the Report and asked questions targeting three main categories of FOI processes: (1) the administration of the application fee; (2) proactive disclosure; and (3) records made available for purchase. The OIPC identified four specific issues in the Report, and provided corresponding recommendations to improve upon FOI processes. The first three are aimed directly at local governments, while the last one requires clarity from the provincial government.

1. Local governments should have telephone or online payment options when administering application fees

The OIPC found that local governments vary in how they administer application fees for an FOI request, including for waivers of fees and for the fee payment options made available. Local governments, on average, provided at least six different payment options, with some providing ten or more. Some, however, had no options for applicants to pay application fees by telephone or online (such as by credit card or e-transfer). The OIPC noted that online and digital payment options are commonplace nowadays, and far more convenient for applicants, providing greater expediency and accessibility. Conversely, limiting forms of payment to those that require applicants to pay in person, or via regular mail, may create barriers to the right of access. As such, the OIPC recommended that all public bodies that administer an application fee should have fee payment options that allow applicants to pay by telephone or online.

2. Local governments should provide mandatory and more comprehensive routine training to staff

The OIPC noticed a discrepancy between several local governments’ proactive disclosure practices and what their staff actually knew about their proactive disclosure practices. Nearly a quarter of municipalities reported that they did not proactively make records available to the public. The OIPC reviewed the official website for each municipality and found that, in all cases, those municipalities did, in fact, proactively release records to the public. The OIPC described this as “concerning”, suggesting municipal staff are either unaware that their municipality routinely releases records or do not understand the requirements of section 71 of FIPPA, potentially having a substantial impact on the public’s access to records. As such, the OIPC recommended that municipalities should provide mandatory routine training to all staff on:

• FIPPA and their responsibilities under FIPPA;
• municipal routine disclosure and FOI policies and processes; and
• how and where to locate records available for routine disclosure

3. Local governments should publish meaningful categories for routine disclosure

FIPPA requires the head of a public body to establish categories of records available to the public without an FOI request, but the survey data showed that local governments differ in the volume and types of records made available. Many local governments established categories of records that were generally well-documented, descriptive, and meaningful, while others reported they had not established any categories. In other circumstances, the OIPC found that established categories were overly broad, not descriptive, and less meaningful (such as simply categorizing records as “routine release”). As such, the OIPC recommended that municipalities publish meaningful categories for routine disclosure, meaning they:

• regularly consider their records and establish meaningful categories for routine disclosure;
• publish the records in an easily accessible and highly visible location; and
• ensure that staff direct people to the records without delay upon request.

4. The provincial government should establish clear criteria to determine when a record is excluded from FIPPA

Finally, the OIPC found inconsistencies across local governments about which records are made available for purchase, and whether obtaining a record for purchase still requires an FOI request and staff intervention. Section 3(5) of FIPPA sets out certain records that are not subject to the access provisions in Part 2 of FIPPA, including records available for purchase or records that do not relate to the business of the public body. The OIPC acknowledged that further guidance is needed on this section and that the absence of clear criteria has led to a broad application of this provision. As such, the OIPC directed its final recommendation toward the provincial government to establish clear criteria that would help local governments, and other public bodies, determine which records should be provided for purchase as opposed to for proactive disclosure or regular FOI processes, along with the associated costs.

Amy O’Connor & Jack Wells

Background

In December 2020, South Coast British Columbia Transportation Authority (“TransLink”) was subject to a cyber attack in which the appellants’ – former TransLink employees – personal information was compromised.

In response to the breach, several former TransLink employees filed a proposed class action. The plaintiffs’ were required to demonstrate that their pleadings disclose a cause of action. The plaintiffs asserted four causes of action: violation of privacy, negligence, conversion, and unjust enrichment. The British Columbia Supreme Court (“BCSC”) found that each claim was bound to fail, therefore the plaintiffs’ pleadings did not disclose a cause of action under the Privacy Act or in negligence.

For more detail on the BCSC decision please see our September 2023 newsletter article “Limits on Liability: Recent Court Decision Considers Public Body’s Liability in the Wake of Privacy Breach”.

The Decision

The BCCA was tasked with determining whether the judge in the BCSC decision erred in concluding that it was plain and obvious that:

1. The appellants claim under s. 1(1) of the Privacy Act was bound to fail.
2. The appellants' claim in common law negligence was bound to fail.

Issue 1 – Violation of Privacy

The BCSC found that only the cyber attacker, not the entity storing third party personal information, would be liable for violation of privacy under the Privacy Act. The BCCA disagreed, finding that the allegations TransLink wilfully violated the privacy of the plaintiffs and class members, contrary to the Privacy Act, were sufficiently pleaded to sustain a cause of action.

The BCCA concluded that it was at least arguable that an entity’s failure to take reasonable measures to safeguard private information that it collects against a breach is itself a violation of a person's privacy.

The BCCA considered the proper interpretation of the Privacy Act. Section 1(1) of the Privacy Act provides:

1 (1) “It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another”

The BCCA found that the BCSC’s interpretation of section 1(1) was too narrow, and that the purpose of the Act is to protect privacy interests by ensuring that harms to those interests do not go without a remedy. The BCCA also found that the term “wilfully” could include reckless behaviour, or behaviour based on an unreasonable belief.

The Court concluded that, depending on the facts found at trial, it is arguable that a trial judge could find TransLink wilfully violated the reasonable expectations of privacy of the class members within the meaning of the Privacy Act by its reckless conduct enabling the data breach. It is arguable that a person’s reasonable expectation of privacy could include the expectation that their personal information and privacy will be protected by the entity to whom they entrusted it to. Therefore, depending on the circumstances, it is at least arguable that a claim of wilful violation of privacy against an organization who has collected private information, but failed to safeguard it from an unrelated cyber attacker, could succeed.

Issue 2 - Negligence

The BCCA disagreed with the BCSC’s decision that the cause of action in negligence was bound to fail. The BCCA found that if it was proven TransLink had failed to meet its obligations to protect the appellants’ privacy, that would inform the analysis of the appellants’ reasonable privacy expectations when they provided their information to TransLink, and whether TransLink’s conduct was a wilful violation of privacy.

The BCCA also found that the BCSC had overlooked the separate claim pleaded in negligence based on a common law duty of care, which did not rely on a breach of section 30 of Freedom of Information and Protection of Privacy Act (“FIPPA”). A common law duty of care can exist alongside a statutory duty, therefore FIPPA does not displace the common law for civil claims arising from breaches of privacy or careless storage of personal information by public bodies.

To establish a common law tort in negligence there must be a duty of care between the parties through a sufficiently proximate relationship and a reasonable foreseeability of harm. There also must not be any residual policy considerations that would negate or limit the scope of that duty.

Due to the sufficient proximity in the relationship between the defendant and the plaintiffs, the novelty of the cause of action, and the sensitivity of the information allegedly taken, the BCCA held that it was not plain and obvious the negligence claim would fail. The pleading of the claim was restored and the certification application was remitted to the trial court.

Key Takeaways:

The BCCA’s decision in GD v. TransLink opens the door for the advancement of claims of statutory tort of breach of privacy and common law negligence in the event of a data breach. We say the BCCA “opened the door” to such claims because it did not find that those claims exist at law, rather, it found that there was an arguable case that they exist at law. While local governments should take note of the potential for increased liability in the event of a data breach, any alarm bells should be tempered by two points.

First, it is important to note that while the BCCA has cleared the way for a potential finding of breach of privacy or common law negligence in this case, these claims have not yet successfully been made. The decision in GD v. TransLink held that such claims were not bound to fail. It was not a finding on the actual merits of those claims. The matter has been remitted back to the trial court to consider the remaining elements of certification for a class proceeding. In the event that the class proceeding is certified, only then will the claims for common law negligence and breach of privacy under the Privacy Act be adjudicated.

Second, while the decision in GD v. TransLink may open the door for new causes of action in relation to a data breach, it does not suggest that public bodies are to be held to a higher standard with regards to safeguarding against a data breach. The same obligations that exist under FIPPA for public bodies to make reasonable security arrangements – proportional to the sensitivity of the personal information in question – against unauthorized collection, use, disclosure or disposal of information in the public body’s custody or control remain applicable.

Ultimately, the decision in GD v. TransLink serves as a strong reminder to local governments of the necessity and importance of taking strong and proactive steps to prevent data breaches, and mitigate the harm such a breach would cause. The precise evolution of the law in BC surrounding privacy liability in the wake of this decision remains to be seen.

James Barth & Aishling Carson

The complainant, a Black woman of Caribbean and West Indian ancestry, alleged that the University discriminated against her in employment based on race and colour contrary to Section 13 of the Code when it terminated her employment. She claimed that her termination was influenced by subconscious discriminatory attitudes about Black workers which were reflected in comments and assumptions made by her supervisor. The University denied discriminating against the complainant and contended that it dismissed her because she lacked the skills necessary to perform her job. The University alleged that the complainant did not have the software skills that she claimed during the interview process, and that she failed to complete assigned tasks.

When dismissing the complainant, the University paid her one week’s salary in lieu of notice. It also offered her an additional three weeks’ pay in exchange for signing a release. The University gave her one week to sign and return the release. However, the complainant signed and returned the release during the termination meeting.

In the application to dismiss process, the complainant claimed that she was under financial pressure to sign the release right away because she needed to pay her rent. She said that she did not read the release before signing it given the emotional nature of the termination meeting. She also said that she would not have signed the release without first getting advice if she had read it or understood it.

The Tribunal noted that there was a strong policy rationale for holding people to their settlement agreements. Considerable public and private resources may be saved when parties are able to resolve human rights disputes via a settlement agreement. The parties may also be able to craft a resolution which more closely matches their needs and interests than would a decision of the Tribunal. However, the Tribunal also stated that the fact that parties have entered into a settlement agreement regarding a human rights dispute does not remove the Tribunal’s jurisdiction to hear the dispute. The Tribunal stated in that regard that the parties cannot contract out of their rights under the Code.

The Tribunal also held, based on its prior decision in Thompson v. Providence Health Care, 2003 BCHRT 58, that there are several factors that may signal that terms of settlement or the conditions under which a settlement was reached are contrary to the Code’s purposes, such that a complaint should proceed despite the settlement agreement. In other words, there are circumstances in which a settlement and release will not bar a human rights complaint from proceeding. The Tribunal quoted the following factors from Thompson:

1. The actual language of the release itself as to what is included, explicitly or implicitly.
   
   
2. Unconscionability, which exists where there is an inequality of bargaining power and a substantially unfair settlement. …
   
   
3. Undue influence may arise where the complainant seeks to attack the sufficiency of consent. A plea of this nature will be made out where there has been an improper use by one party to a contract of any kind of coercion, oppression, abuse of power or authority, or compulsion in order to make the other party consent.
   
   
4. The existence or absence of independent legal advice may also be considered. However, if a party has received unreliable legal advice that may not affect the settlement.
   
   
5. The existence of duress (not mere stress or unhappiness) and sub-issues of timing, financial need, and the like, may also be factors.
   
   
6. The knowledge on the party executing the release as to their rights under the [Code], and, possibly, the knowledge on the party receiving the release that a potential complaint under the [Code] is contemplated.
   
   
7. Other considerations may include lack of capacity, timing of the complaint, mutual mistake, forgery, fraud, etc.

In the Fyffe decision, the Tribunal was unable to assess those factors. The parties provided conflicting evidence as to what was said at the termination meeting. The Tribunal found the conflicts in the evidence to be irreconcilable on the evidence that was before it. The University’s human resources advisor was the person leading the termination meeting, and stated that she had explained the termination letter and release to the complainant, including that the release agreement would release the University from further claims, and that the complainant had one week to consider and sign the release, and that she was entitled to speak with her bargaining agent about the release. The complainant on the other hand said that she was emotionally shocked, overwhelmed and confused during the termination meeting. The complainant contended that at no point did the human resources advisor inform her that she would be releasing the University from all claims if she signed the release. The complainant said that if she had known that she would not have signed the release and would have gotten legal advice. She also said that the human resources advisor did not tell her that she was entitled to speak with her bargaining agent before signing the release.

Because of those conflicts in the evidence, the Tribunal held that it could not properly assess the Thompson factors or conclude that proceeding with the complaint would not further the purposes of the Code. The Tribunal held that the issue should be left for determination at a hearing, if the University wanted to raise the issue there.

This case provides employers seeking to rely on release agreements with some best practices to increase the likelihood that a release agreement obtained in the context of a termination will be enforceable:

1. The release agreement should be written in as clear and plain language as possible.
   
   
2. Employers should be mindful of the inequality of power between the employer and the employee generally, and especially during a termination meeting. Employees should not be pressured to sign the release agreement during the termination meeting. Instead, employees should be given time to read and consider the release agreement, outside of the termination meeting.
   
   
3. Employees should be informed of their right to obtain independent legal advice and should be encouraged to do so.

We also recommend that local government employers contact us for advice before terminating an employee and presenting them with a release agreement.

S. Michelle Blendell

• 529 (1) If the use and density of buildings and other structures conform to a land use regulation bylaw but
  
  • (a) the siting, size or dimensions of a building or other structure constructed before the bylaw was adopted does not conform with the bylaw, or
    
  • (b) the siting, size, dimensions or number of off-street parking or loading spaces constructed or provided before the bylaw was adopted does not conform with the bylaw,
• (2) A building or other structure or spaces to which subsection (1) applies may be maintained, extended or altered only to the extent that
  • (a) the repair, extension or alteration would, when completed, involve no further contravention of the bylaw than that existing at the time therepair, extension or alteration was started ...

The SCRD determined that subsection 529 (2) allowed the proposed replacement dwelling on the ground that the work constituted a “repair” as that term is used in that subsection. On that basis it issued a development permit to Ms. Vanderhaeghe to tear down and replace her cottage without requiring any zoning variances.

You might have thought the SCRD was doing Ms. Vanderhaeghe a favour when it adopted this broad interpretation; otherwise, to rebuild so close to the lake she would have required not just a development permit, but also a variance (to the 20-metre zoning bylaw setback). And if the SCRD was doing Ms. Vanderhaeghe a favour by issuing a DP without requiring any variances, you might have expected her to return the favour, for example by building in accordance with the permit, which she did not do. Instead, after demolishing the old non-conforming structure (which she was authorized to do), she completed the construction of a new house that was bigger, taller and closer to the lake than what her development permit allowed. She also erected a previously unanticipated retaining wall in a riparian area (apparently for emergency erosion control purposes). All of this despite two stop work orders.

The Supreme Court of British Columbia accepted that Ms. Vanderhaeghe’s troubles were basically the fault of Regional District staff, beginning with their unreasonable, if favourable to Ms. Vanderhaeghe, interpretation of s. 529 of the Local Government Act. The lower court concluded the words “repair”, “maintain” and “alter” are not reasonably capable of supporting full demolition and replacement. The British Columbia Court of Appeal patiently considered the Regional District’s contrary arguments (including an increasingly common argument that the judge mistakenly applied a “correctness” standard of review after acknowledging that “reasonableness” review was required) but was not persuaded to reach a different conclusion:

Nor do I see an error in the [lower court] judge’s view that what s. 529(1) allows to be “maintained, extended or altered” is “a building or other structure constructed before” the adoption of the bylaw causing the edifice to be non-conforming. This cannot include a new building constructed after the bylaw has come into effect … In my view, “repair” cannot reasonably capture the destruction of a building in its entirety and its replacement with a new building.

What, if anything, should we take from the Vanderhaeghe decision? On the s. 529 issue, a non-conforming building or structure may be maintained and repaired (provided no further contraventions are involved), but replacement will require compliance with current zoning regulations, or a trip to the board of variance, or the council or regional board for a development variance permit, or a delegate of the council or regional board for a minor development variance permit (not to be confused with a “minor variance”, which is what the board of variance can permit).

Also this week, the Supreme Court of Canada dismissed an application for leave to appeal in another non-conforming use case (Onni v Ucluelet), where a landowner wanted to rely on works and services constructed for a bare land strata subdivision as evidence of a commitment to use each of 29 undeveloped strata lots in accordance with a previous and far more generous zoning scheme. That case turned mainly on findings of fact, not so much on questions of interpretation, but otherwise reinforced the view that intention alone, without actual physical alteration of the subject lands, is insufficient to support a non-conforming use claim.

Guy Patterson

While the provincial government is apparently planning to introduce a bill during the Spring Legislative session, there are no draft amendments at this point. The Union of BC Municipalities is hosting an engagement session for local governments on February 21, 2024. If you are interested in learning more, or have questions or comments, you can sign up here.

Nick Falzon & Nate Ruston