A reminder that, in the coming weeks and months, I will be running a symposium on SEAR to commemorate five years under the Vavilov framework. I invite any interested subscribers to contribute a short piece reflecting on Vavilov. The pieces can be around 1000-2000 words.
Pringle v Peace River (Regional District), 2024 BCCA 322 (September 12, 2024)
Category: Remedy
Context: From the Court’s summary:
The appellants purchased a property which, unbeknownst to them at the time, was subject to bylaws which made it unsuitable for their intended uses. The appellants constructed buildings and a campground on the property in contravention of the bylaws, and the regional district issued two bylaw contravention notices. The appellants sought to modify the zoning designation for the property and appealed to various decision makers for relief. Failing that, they opposed the bylaw notices before an adjudicator appointed under the Local Government Bylaw Notice Enforcement Act. The adjudicator cancelled one of the notices on the basis the appellants were taking steps to remedy the contravention. The regional district applied for judicial review and the reviewing judge set aside the adjudicator’s decision.
Issue: While there are substantive issues in this case, I focus on the Court’s (per Skolrood JA) choice of remedy.
Analysis: Skolrood JA concludes that the matter should not be remitted, in contrast to the usual remedial rule. Here, however, Skolrood JA points out the very purpose of the Bylaw Enforcement Act “is intended to provide for the timely and efficient resolution of bylaw infraction matters” [48]. Additionally, on the facts of this case, “the outcome arrived at by the judge was inevitable” and so remitting would “serve no useful purpose” [48].
Skolrood JA’s comment on the purpose of the statute is interesting. In Vavilov, the factors that can drive a court’s remedial discretion to not remit are open-ended, but one concerns “the nature of the particular regulatory regime” (Vavilov, at para 142). This is not a factor that, to my knowledge, has received much attention in the cases. But I think one can profitably take a lesson from this case: where there are clear textual or purposive indications in a particular statute that efficient decision-making is a hall mark of the statutroy regime, this may be a relevant factor in exercising remedial discretion. Of course, it is important not to generalize: while one purpose of legislative delegation to administrative decision-makers is, writ large, to enable efficient decision-making, that is not necessarily evidenced in every statute delegating power. Here, however, there is a good case to be made that the Bylaw Enforcement Act enshrined such considerations, and the nature of that regime is relevant to the exercise of remedial discretion.
Jubenville v Municipality of Chatham-Kent et al, 2024 ONSC 4839 (September 3, 2024)
Category: Record.
Context: The applicant, a city councillor, sought judicial review “of decisions made by and/or on the recommendation of the respondents in relation to her conduct as a City Council Member…” [1]. The municipal Integirty Commissioner offered a report and conclusions to support these decisions. Within the, she brought a motion seeking an order to exclude certain materials from the record filed by the respondents. The applicant argued, among other things, that her motion to exclude materials was designed to prevent the respondent from bolstering the record with materials that were not truly before the decision-maker/at issue in the judicial review.
Issue: Should the evidence be excluded?
Holding: No.
Analysis: It is interesting to see an applicant seeking to exclude evidence—usually, we see applicants trying to rely on exceptions to the general rule that no new evidence can be tendered on judicial review. The applicant, however, was caught between a rock and a hard place. Her arguments sought “declaratory relief…asking this court to find that there were numerous alleged faults and failings in the procedures followed and the conclusions reached and reported by the Integirty Commissioner…” [6(d)]. But on the other hand, her motion suggested that material plausibly relevant to her arguments should be excluded.
One can see this case as a piece with other cases that, in recent years, have construed the “record” of proceedings broadly.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own