Not in the judiciary’s back yard: BC Legislature’s unsuccessful attempt to side-step judicial review of Vancouver’s approval of housing project

The BC Court of Appeal’s (BCCA) recent decision in Kitsilano Coalition v. British Columbia (Attorney General)¹  found that the BC Legislature improperly interfered with the court’s adjudicative role in order to fast-track the construction of a low-income and supportive housing project.

Kitsilano provides valuable guidance on the limits of a legislature’s power to take action that may avoid or curtail litigation arising from approval of a development project. A legislature is permitted to retroactively alter the substantive law that applies to a dispute, but it cannot intrude upon the court’s judicial function.² In Kitsilano, the BC Legislature went too far.  

Companies engaging with governments to expedite infrastructure and resource projects or develop real estate should be mindful of the limits on legislative power highlighted in Kitsilano. Asking government to intervene in a way that oversteps its role may only cause further delay. 

Understanding Kitsilano

Contentious rezoning leads to legislative efforts to curtail judicial review

The facts of Kitsilano revolve around a contentious rezoning application in the City of Vancouver.³ In 2021, the City of Vancouver began planning for a low-income and supportive housing project. As part of this project, the lands in question had to be rezoned. The city applied to amend its zoning bylaw. This triggered a public hearing in accordance with the Vancouver Charter.⁴

After the public hearing, a majority of Vancouver’s City Council approved the rezoning in principle.⁵ The Kitsilano Coalition for Children & Family Safety Society (the Coalition) subsequently identified concerns over the fairness of the public hearing. The Coalition eventually filed a petition for judicial review in October of 2022.

In April of 2023, before the petition could be heard, the Minister of Housing introduced Bill 26, the Municipalities Enabling and Validating Act (No 5) (the Act).⁶ The Act deemed the outcome of the public hearing to be valid despite the Vancouver Charter, the city’s procedural bylaw, and any court decision to the contrary. It had the effect of passing the amendment to the rezoning by-law so the housing development’s construction could begin despite pending litigation by the Coalition.⁷ As the BCCA would go on to find, the effect of the Act was to make the Coalition’s application for judicial review entirely pointless.⁸

The BCCA enforces constitutional roles: Legislatures legislate, courts adjudicate 

The Coalition sought a declaration that the Act was contrary to Section 96 of the Constitution Act, 1867,⁹ as it ousted the power of the BC Supreme Court to conduct judicial review and undermined fundamental constitutional principles including judicial independence, the separation of powers and access to justice.¹⁰

The BCCA overturned the BC Supreme Court’s decision.¹¹ While the Act on its face did not interfere with the judicial process, the BCCA determined it had this effect. Accordingly, through the Act’s enactment, the BC Legislature made the court and its constitutional oversight role irrelevant, sanctioned a possible breach of procedural fairness by the municipal government, and undermined provisions of the Vancouver Charter intended to ensure public participation in decision-making by elected officials.¹²

The BCCA declared the Act to be of no force and effect.¹³

Key insights

In contrast with Kitsilano, the BC Legislature properly stayed in its constitutional lane in Barbour v University of British Columbia. ¹⁴

In Barbour, the BC Supreme Court had ruled UBC’s Board of Governors exceeded its powers by enforcing parking regulations and ordered restitution for members of a class action.¹⁵ In response, the BC Legislature amended the University Act, expanding the board’s powers retroactively and negating the court’s restitution order.¹⁶ The BCCA upheld the BC Legislature’s enactment of retroactive legislation that undid a judicial outcome, finding it within the legislature’s constitutional authority. Unlike the BC Legislature’s attempts to block judicial review in Kitsilano, in Barbour, the BC Legislature did not interfere with the adjudication of the class proceeding itself. Instead, it amended the law, which substantively impacted the rights of class members. This represented a valid exercise of its legislative authority.

Unlike in Kitsilano, where the legislature attempted to block litigation entirely, the BCCA found the legislature’s actions in Barbour acceptable because they only altered the substantive law bearing on the dispute, a power the legislature rightfully holds.¹⁷ In Kitsilano, the legislature overstepped by effectively preventing the courts from exercising their constitutional oversight role.

Companies engaging with government officials during contested development projects should be aware of the limits of legislative power to avoid pursuing unlawful legislative intervention that may only further delay these projects.

While legislatures can properly modify substantive rights, they cannot interfere with the judicial process itself. 

The author would like to thank Madeline Heinke, articling student, for her contribution to preparing this legal update.