The Supreme Court of British Columbia confirms that bylaw enforcement by a local government is a discretionary power so long as the enforcement was not statutorily mandated and the local government acted in good faith.
Facts
Dorothy Fahr, Sheldon Scheller and Sarbjit Kallar (the “Plaintiffs”) alleged that the defendant Cowichan Valley Regional District (“CVRD”) was negligent in its failure to enforce its zoning and waste management bylaws (the “Bylaws”) relating to the commercial activities of the defendant Schnitzer Steel Canada Ltd. (“Schnitzer”) on a leased property.
Schnitzer was operating an automobile recycling facility in contravention of the Bylaws but which may be a legal non-conforming use. The Plaintiffs alleged that Schnitzer’s commercial activities constituted an ongoing nuisance and caused them property damage, emotional upset, and pecuniary loss. The Plaintiffs further alleged that because the CRVD was aware of the alleged harm caused by Schnitzer, the CVRD was in breach of its private law duty of care by failing to enforce the bylaws enacted to prevent the harm. The Plaintiffs sought compensation from the CVRD for the harm they suffered as a result of the CVRD’s alleged negligent failure to enforce the Bylaws.
The Plaintiffs asserted that when a local government makes a policy decision to take up an optional statutory power to enact a bylaw, it has a corresponding duty at the operational level to use due care in enforcing it.
The CVRD did not dispute that Schnitzer was contravening the Bylaws. However, the Bylaws did not contain legislative provisions mandating their enforcement. The CVRD took the position that a local government does not owe a private law duty of care and that it could not be sued by individual property owners for losses alleged in relation to bylaw infringements committed by the Plaintiffs’ neighbours.
The CVRD applied under Rule 9-5(1)(a) of the Supreme Court Civil Rules for an order striking the claim as disclosing no reasonable cause of action.
Decision
The Honorable Justice Baird held that the Plaintiffs failed to establish that the CVRD owed them a duty of care. Baird J. found that the CVRD had never stepped outside of its regulatory role in dealing with the Plaintiffs or Schnitzel. Rather, Baird J. concluded that the CVRD had attempted in good faith to balance competing public interests, and that this approach fit within the CVRD’s broad discretion in matters of bylaw enforcement and land use regulation.
As a result, the Plaintiff’s claim in negligence against the CRVD failed. Baird J. struck the Plaintiffs’ claim in negligence against the CVRD.
Takeaway
Bylaw enforcement by a local government is a discretionary power. Individual property owners cannot seek compensation from local governments forthe negative impacts of a bylaw contravention committed by a third party on a neighboring property when enforcement is not statutorily mandated.