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LIABILITY OF MUNICIPALITY - Duty of care - Building regulation

Tuesday, February 26, 2019 @ 8:31 AM  


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Appeal by the defendant City from an order declaring the City liable to compensate the respondents for failing to decide on their development permit application within a reasonable time. In January 2013, the respondents submitted a development permit application to the City for the demolition of the house and construction of a new single-family dwelling on their property. Between January and April 2013, the City discussed internally the possibility of recommending to Council that the property be designated as protected heritage property and compensating the respondents. The property was then granted temporary heritage protection. During the 120 day temporary protection period, the City continued to encourage the respondents to consider incentives to retain the house. In May 2014, the respondents commenced this action seeking an order in the nature of mandamus to compel issuance of the development permit or, in the alternative, alleging abuse of public office, expropriation, and negligence. In June 2014, the appellant enacted a heritage bylaw whereby the respondents lost the right to compensation that would otherwise have been available to them under the bylaws existing at the time. The judge found that the City acted intentionally and in bad faith in delaying a decision on the development permit application until a change in applicable bylaws removed a right to compensation that previously existed. The chambers judge concluded the respondents had not established the tort of abuse of public office or misfeasance or the requirements for a finding of expropriation. She also dismissed the application for mandamus on the basis that the City had an option either to grant the application or designate the property and pay compensation. The judge then recognized in the law of negligence a novel private law duty of care to make a decision within a reasonable time in accordance with the applicable bylaws and found that the City, in bad faith, breached that duty.

HELD: Appeal allowed. Action dismissed. There was no duty of care imposed on officials to act in accordance with authorizing statutes or regulations. Standing alone, a breach of a statutory duty was not a breach of a private law duty of care. A breach of a public law duty was not sufficient to establish the breach of a private law duty. The duty described by the judge was no more than an action for negligent breach of statutory duty by a public authority. The proper remedy was judicial review. A failure to act as required by statutory authority was properly remedied by an order in the nature of mandamus compelling the authority to decide. The duty recognized by the judge amounted to a fundamental shift in the way in which public and private spheres had historically addressed improper governmental action. The duty the judge recognized could not survive the Anns/Cooper test for identifying novel private law duties of care. Nothing in the regulatory scheme at issue suggested the legislative intent was to create a private law duty of care owed to property owners. The factors inherent in administering a regulatory scheme of this nature were insufficient to create a relationship of proximity. The fact that property rights were involved in this regulatory framework did not elevate the nature of interest engaged to such a level that a relationship of proximity was created. The risk of indeterminate liability was a sufficient public policy reason not to recognize the duty. The availability of alternative remedies provided another policy reason not to recognize the duty.

Wu v. Vancouver (City), [2019] B.C.J. No. 55, British Columbia Court of Appeal, D.C. Harris, G. Dickson and S.A. Griffin JJ.A., January 21, 2019. Digest No. TLD-February252019004