Court of Appeal Decision of the Week

Municipal Law: Breach of Statutory Duty v. Private Law Duty of Care

Case: Wu v. Vancouver (City), 2019 BCCA 23 (CanLII) 

Keywords: Private Law Duty of Care; Municipal Officials; Proximity; Policy Reasons

Synopsis:

The City of Vancouver appeals a decision imposing a private law duty of care on municipal officials to make a decision with respect to a development permit application within a reasonable time. The Supreme Court of British Columbia found the City acted intentionally and in bad faith – engaging in “a circuitous course of delay” (see para. 31) until after a crucial change to the applicable bylaws removed a right to compensation for homeowners, including Zheqiang Wu and Binxia Cao (the Respondents).

The Court of Appeal allows the appeal; determines public law duties cannot be converted into private ones and the proper remedy for delay in making a decision is mandamus or an order directing the City to make a decision.

Importance:

In addition to providing commentary as regards the recognition of novel duties of care, the reasons of the Court of Appeal herein provide a useful summary of administrative law remedies. Citing Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), the Court of Appeal noted mandamus is the appropriate remedy for delays associated with municipal decision-making. For the Court, mandamus may be used to compel an official to make a decision regardless of whether the official possesses “…a duty to make a particular decision.” (See para. 40).

For the Court of Appeal:

  • It is a “settled principle” that “Canadian law” [presumably the B.C.C.A. is not also talking about Québec?] does “not recognize a nominate tort of breach of statutory duty.”
  • “…there is no duty of care imposed on officials to act in accordance with authorizing statutes or regulations”.
  • “Standing alone, a breach of a statutory duty is not a breach of a private law duty of care.”
  • “While a breach of a statutory duty is subsumed within the law of negligence, a breach of a statutory duty can be evidence of negligence”.
  • and, as a “general rule”, a breach of a public law duty is not sufficient to establish the breach of a private law duty” (see para. 43).

The Court also determined that, “…as a general proposition subject only to arguably rare exceptions, statutory duties owed by public authorities are insufficient to ground private law duties arising out of interactions that are inherent in the exercise of the public law duty.” (See para. 58).

After discussing the development and application of the Anns/Cooper framework, the Court of Appeal determined that the bylaws applicable in this case did not create a sufficient relationship of proximity:

“In this case, the bylaws in issue were concerned with protecting the heritage character of a certain part of Vancouver. The regulatory framework exists to promote a conception of the public interest or public good by regulating the type and character of new construction in FSD. The primary objective of the scheme is to promote the public good. In the circumstances, I do not think it can be said that the regulatory framework, standing alone, either explicitly or by implication, creates a relationship of proximity capable of giving rise to a prima facie duty of care.” (para. 63)

In the alternative, the Court of Appeal cited “…the risk of indeterminate liability” (see para. 78) as a policy reason which would justify not recognizing the duty of care:

“It is not apparent what concrete meaning can be given to “a reasonable time” given the scarcity of resources public authorities can deploy in processing applications and given the competing and shifting priorities public authorities face while discharging their responsibilities. What is reasonable will vary contextually depending on the policy choices a public authority makes.” (para. 77)

Ultimately, the Court concluded that the City did not owe a private law duty of care to the Respondents. (See para. 82). The appeal was allowed the Order set aside, and the Respondents’ action dismissed. (See para. 95).

With respect to the appropriate remedies available to the Respondents, the Court of Appeal stated the following:

“I agree with the judge that mandamus could not be ordered. The respondents applied for an order directing the City to issue the development permit. Given the discretion that was available to the City, no such order could be made. The order that was available, at least in principle, was an order directing the City to make a decision. The respondents did not make that application. They could have done so, especially given the public knowledge during much of the material period that the City was actively contemplating changing its approach to heritage protection.” (para. 85)

The Court of Appeal also confirmed that the “existence of a private law duty of care must be established by the application of common law principles.” (See para. 43)

Counsel for the Appellant: Dan Bennett, Q.C. and Emily Lapper (Norton Rose LLP, Vancouver)

Counsel for the Respondent: Robert Holmes, Q.C. (Holmes & Bilawich, Vancouver) and M. Good

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Posted: Wednesday, January 23, 2019