Case: 992704 Ontario Limited v. British Columbia (Attorney General), 2021 BCCA 469

Keywords: judicial review; standing of Attorney General; Judicial Review Procedure Act, R.S.B.C. 1996, c. 241

Synopsis:

The Applicant, 992704 Ontario Limited, owns a residential property in Whistler, BC. The Applicant is successful in seeking judicial review against a decision of the Respondent Property Assessment Review Panel (“PARP”) upholding a property assessment under the Assessment Act, R.S.B.C. 1996, c. 20. The BCSC finds the PARP breached the principles of procedural fairness in its conduct of a hearing. (See 2021 BCSC 1029 at para. 79). The BCSC describes the Attorney General as an “attendee” rather than as “Respondent” to the proceedings. (See para. 24; see also “style of cause” in BCSC 1029).

The Attorney General of British Columbia appeals this decision to the Court of Appeal. The Applicant applies to quash the Attorney General’s appeal. The question is whether the Attorney General has standing to appeal an adverse decision of the BCSC.

The Court of Appeal finds the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 preserves the right of the Attorney General to bring an appeal where it has exercised its right to be a party. The Court of Appeal also clarifies that, in future filings, parties should adopt a style of cause recognizing the Attorney General as “Respondent”. (See para. 24).

Importance:

This case addresses a matter of significant public importance – namely, the status of the Attorney General on a petition for judicial review. To answer this question, the Court of Appeal referred to its prior decision in Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244, wherein the Court stated “when the Attorney General appears in his own right he is a party”. (See para. 13; 2005 BCCA 244 at para. 30).

For the Court of Appeal, the decision in Lang appropriately rejected an expressio unius est exclusio alterius approach to the Judicial Review Procedure Act.

Let’s unpack this point. Section 16 of the Judicial Review Procedure Act provides that the Attorney General “must be served with notice of an application for judicial review and notice of an appeal from a decision of the court with respect to the application”; and that “[t]he Attorney General is entitled to be heard in person or by counsel at the hearing of the application or appeal.”

From the Applicant’s perspective, s. 16 does not confer party status on the Attorney General. In support of this position, the Applicant cited the maxim expressio unius est exclusio alterius. In other words,

  • since s. 16 does not explicitly confer party status on the Attorney General, and
  • s. 15(1) of the Judicial Review Procedure Act expressly mentions only that “the person who is authorized to exercise [statutory power]…may be a party to the application, at the person’s option”,

the juridical implication is (or should be) that this excludes the Attorney General. (See paras. 6, 8).

However, the Court of Appeal herein declined to make this juridical implication based on the “unique” role of the Attorney General as a “guardian of the public interest” (see para. 17); the fact that “historically” judicial review applications in British Columbia were brought in the name of the Crown (see para. 18); and the historic role of the Attorney General remains in place by virtue of the Attorney General Act, R.S.B.C. 1996, c. 22, s. 2(b) and (c). (See para. 22).

In summary, the Court of Appeal cited a decision of the Court of Appeal for Yukon for the proposition that the Attorney General becomes a party to judicial review proceedings and enjoys the right to launch an appeal whenever it has filed a response to the judicial review:

The unique constitutional role of the Attorney General supports the position adopted by this Court in Lang to the effect that, by filing a response to a judicial review petition, the Attorney General becomes a party to the proceedings. The rights of a party include the right to launch an appeal (see the decision of our sister court, the Court of Appeal for Yukon, in Silverfox v. Chief Coroner, 2013 YKCA 11). (See para. 23).

Counsel for the Applicant/Respondent, 992704 Ontario Limited: M. Ball and I.T. Bern

Counsel for the Respondent/Appellant, Attorney General of British Columbia: Kathleen Reilly (Attorney General of BC, Vancouver) and M. Bennett

Counsel for the Respondent, Property Assessment Review Panel: Alandra Harlingten (Lovett Westmacott, Victoria)

Counsel for Respondent, BC Assessment – Area #08 Vancouver Sea to Sky: Tim Summers (Crease Harman LLP, Victoria)

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