Seminar Papers - Young Anderson - Barristers and Solicitors

Caselaw Update

Fri, 21 Nov 2025 15:15:00 -0800

This paper examines five court decisions over the past year that are of particular interest to local governments: (i) a B.C. Supreme Court decision to strike down a Community Amenity Contribution Policy because it created a mandatory collection scheme unsupported by statutory authority; (ii) the B.C. Supreme Court’s finding that a local government's retention of a $6 million construction deposit related to a stalled development was not an unlawful penalty; (iii) the Court of Appeal’s finding that a local government was not liable for issuing building and occupancy permits to the holder of an easement without the land owner’s consent; (iv) a Court of Appeal decision that a Municipalities Enabling and Validating Act (MEVA) was unconstitutional because it ousted the adjudicative role of the court with respect to a particular development; and (v) a Court of Appeal decision confirming a local government’s broad discretion in the referral of cannabis retail store licence applications.

Heritage Conservation: The Act and More

Fri, 21 Nov 2025 14:16:00 -0800

Sometimes local governments wish they had more authority to achieve important policy objectives, including objectives promoted by the Province, which of course is the source of all local government authority in the first place. Sometimes (and by “sometimes” we mean “often”) the Province would like local governments to assist the Province in achieving provincial policy objectives (like protecting farm land or fish habitat, or increasing the supply of housing). When it comes to heritage conservation, local governments need look no further than Part 15 of the Local Government Act. Part 15 offers a comprehensive suite of powers local governments can rely on to identify, and protect, heritage properties, in some cases including undeveloped land, within their boundaries. And to be clear it leaves it up to local governments in most cases to decide what property is worth preserving in the first place. Yet local governments and the Province seem quick to look beyond Part 15 for heritage conservation opportunities, and even obligations. Therefore, before turning to Part 15, this paper will first review the Heritage Conservation Act and the role of local governments in that universe, and then consider heritage conservation moments in the broader context of other local government development approvals. We’ll then attempt to convince readers that Part 15 should be the first, not the last, place to look in any search for heritage conservation authority.

FOIPPA Toolkit: Dealing with External and Internal Conflicts

Fri, 21 Nov 2025 14:15:00 -0800

For anyone working in local government, an additional layer of consideration exists with your work products and communications, being your duties under the Freedom of Information and Protection of Privacy Act (“FOIPPA”). Under FOIPPA, public bodies (such as local governments) have obligations to fulfill requests for information made under FOIPPA (referred to in this paper as “access requests”, “FOI requests” or “requests”), as well as obligations to safeguard personal information and other confidential information. When it comes to processing access requests, this already challenging work can be further complicated by bad apples both inside and outside the organization, from applicants submitting vexatious requests to members within the organization blatantly disregarding their duties under FOIPPA.

This paper provides an overview of some common external and internal conflicts surrounding FOIPPA processes and obligations. Regarding external conflicts, we first identify some key responsibilities in navigating and fulfilling FOI requests that may come to a head when dealing with difficult applicants. We then discuss applications to the Office of the Information and Privacy Commissioner (the “OIPC”) to disregard FOI requests in prescribed circumstances, outlining the grounds on which such an order may be granted, the circumstances that might lead to a successful section 43 application, and the kind of evidence that is necessary to meet this very high threshold. Regarding internal conflicts, we discuss the proper recourse where staff or elected officials fail to adhere to their obligations under FOIPPA, including where privacy is breached or where records are not provided in response to an access request, whether intentionally or not.

Building Regulation and Inspection: A Refresher

Fri, 21 Nov 2025 13:31:00 -0800

Local governments in British Columbia are empowered to enforce the 2024 BC Building Code (the “Code”). While they are not required to do so, many municipalities choose to adopt building bylaws and inspection regimes to regulate construction within their jurisdictions. By assuming this responsibility, municipalities may potentially expose themselves to liability where their actions—or inactions—in the permitting or inspection process fall below the standard of reasonable care. British Columbia courts have sometimes decided that municipal building inspectors owe a duty of care to both property owners and subsequent purchasers once a municipality elects to regulate construction under a building bylaw. Courts have confirmed that the purpose of regulating building construction is to protect the health and safety of building inhabitants by providing an independent review of the sufficiency of construction undertaken by builders who might otherwise intentionally cut corners to save cost or time, or who are unaware of mistakes in their work. If extant, exposure to liability can be significant and defects in construction often remain latent for many years, surfacing only after ownership has changed hands. When such defects are discovered, municipalities may face claims that their inspectors negligently approved, or failed to prevent, non-compliant construction. This paper examines the statutory framework governing municipal building regulation and enforcement in BC, the leading jurisprudence on negligence in building regulation regimes, and defences to limit or negate liability. It concludes with practical guidance for municipalities to minimize liability exposure while maintaining effective oversight of building activity within their jurisdictions.

All Things Alternative Approval Process

Fri, 21 Nov 2025 13:30:00 -0800

Every 4 years, the electors head to the polls to vote for the individuals they would like to see represent their interests as municipal council or regional board members. Aside from the occasional by-election, the successful candidates then hold office for 4 years and may exercise the significant powers that the Province and voters have entrusted to them under the Community Charter (Charter) and Local Government Act (LGA). Needless to say, these powers are significant and can result in significant financial commitments, with a significant tax burden on future tax payers that can exceed the 4-year term of office, in some cases for many years. For this reason, the Charter and LGA require a council or board to go back to the electors for “approval” before exercising some of these significant powers.

A council or board may obtain such “approval of the electors”, by going through an election type process referred to as the “assent of the electors”, permitting electors to vote “yes” or “no” in relation to the particular matter. However, in many, but not all cases, the Charter and LGA also permit a local government to seek the approval of the electors by using a simpler, faster and less expensive process, known as the “alternative approval process” (AAP).

Under an AAP, the local government provides notice to the public that it may proceed with the particular matter unless at least 10% of electors sign elector response forms stating opposition to the matter and submit those forms to the corporate officer within a response period of at least 30 days. If there is a sufficient number of petitions against the matter, the local government cannot proceed with the matter, unless the matter first undergoes a successful elector assent process. If the petitions are insufficient, the local government may proceed with the matter.

So, when does an AAP apply? How does it work? What are the common challenges and pitfalls with the process? This paper will examine “all things” alternative approval process.

Abusive Members of the Public: What are Your Rights and Responsibilities?

Fri, 21 Nov 2025 11:40:00 -0800

Dealing with difficult or even abusive members of the public has long been seen as “just part of the job” for those working in local government. But what happens when that behaviour crosses the line? This paper explores what obligations a local government has to protect its employees when interactions become harmful – and what authority it has to respond. We will look at the range of tools available to local governments to manage abusive conduct, including expulsion and suspension from council meetings and remedies arising from the Trespass Act. Finally, we will turn to the law of defamation in B.C., examining when a claim against an abusive individual might be appropriate, the risks it entails, and what the process looks like in practice.

Employment Law Update

Fri, 21 Nov 2025 10:55:00 -0800

In this paper, we discuss recent employment law cases that are applicable to local governments. The cases discussed cover the continuum of the employment relationship including the nature of the relationship itself, the importance of the wording in the employment agreement, changes to employment terms, and the termination of employment. The courts continue to recognize the power imbalance between employers and employees and will consider all of the facts of each specific case in their decision making.

The Cowichan Tribes Decision: Local Government Implications

Fri, 21 Nov 2025 09:15:00 -0800

The Cowichan Tribes decision of the British Columbia Supreme Court, indexed at Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 [Cowichan Tribes], has garnered significant media attention since its release in August of 2025. There are many features of the case that are remarkable. For one, it was the longest trial in Canadian history, running a total of 513 days, from 2019 until 2023. Eighty-six lawyers appeared as counsel for the various parties, which included the Cowichan Tribes, the Attorney General of British Columbia, the Attorney General of Canada, the City of Richmond, the Vancouver Fraser Port Authority (the “VFPA”), the Musqueam Indian Band (the “Musqueam”), and the Tsawwassen First Nation (the “TFN”). The resulting judgment runs 863 pages.

However, the more remarkable component of the case is the fact that, for the first time in Canadian legal history, a court found that Aboriginal title exists in respect existing fee simple titles. The Court held that Cowichan Tribes’ Aboriginal title invalidated the fee simple titles of Canada and Richmond and that its Aboriginal title also at least co-existed with the fee simple titles of private owners who had not been notified of the proceedings. Those are findings are both unprecedented in Canadian legal history.

The analysis that led the Court to these conclusions is lengthy, complex, and deserving of careful thought and attention. The purpose of this paper is not to provide a comprehensive review of every issue canvassed in the judgment. Rather, our goal is to give readers a foundation in the core concepts behind the decision and to explain, in brief, the outcome.

The Provincial Housing Agenda: A Year In Review

Fri, 08 Nov 2024 08:00:00 -0800

OVERVIEW: provincial housing legislation introduced over the past year has largely been viewed as trenching on an area of jurisdiction – residential land use management – that properly belongs to local governments. While the provincial government has certainly reasserted its authority in that regard, many elements in the provincial housing agenda actually enhance local government authority in ways that reinforce and extend local land use management jurisdiction. This paper focuses on those elements.

A principal focus of the provincial housing legislation is the removal of municipal council and regional board discretion over certain categories of residential zoning changes, for the sake of expediting development approvals. It now seems clear that the provincial government understood that the aversion of local governments and their planning staff to zoning significant areas of land for higher-density residential development in advance of site-specific applications to rezone (what has come to be called “pre-zoning”) was not entirely due to their enthusiasm for public hearings. The rezoning process had come to be used as a bargaining chip to obtain all sorts of public benefits from developers – not only cash community amenity contributions but also highway widenings, EV charging stations and other transportation improvements beyond those required by servicing bylaws, tenant relocation commitments not required by the Residential Tenancy Act, affordable housing units and so forth. There is some validity to the argument that the use of the zoning power has been diverted away from traditional land use management objectives and towards revenue generation and programs such as affordable housing that have historically and traditionally been within the jurisdiction of senior governments. With the new provincial requirements for pre-zoning land to accommodate 20 years’ demand for new housing, allowing small-scale multi-unit housing in low-density residential zones, and accommodating higher-density housing in areas well-served by transit, an obvious question was whether and how local governments would be able to secure these types of public benefits – the need for which would only be magnified by provincial and federal government housing supply initiatives. The answer to the question lies in an array of new local government powers reviewed in this paper.

Internal Investigations: Code Of Conduct And Workplace Complaints

Fri, 08 Nov 2024 07:30:00 -0800

In recent years there has been increased attention on investigations for various forms of misconduct within local governments. This paper will focus on two types of investigations: investigations of bullying and harassment in the workplace, and investigations of misconduct of elected officials under municipal codes of conduct.

While local governments may at times conflate the two, workplace bullying and harassment policies and codes of conduct involve entirely separate investigation procedures that flow from distinct statutory authorities, underlying purposes, and permitted scopes. Furthermore, if not conducted properly, each have the potential to expose local governments to different kinds of liability. In this paper, we discuss the key similarities and differences between these investigation procedures, including their statutory authorities, key preliminary considerations, and step-by-step guidelines on how to process and investigate complaints in relation to workplace bullying and harassment and codes of conduct.