Reasonable Notice: 24 Months

Posted by Johannes Schenk on September 27th, 2006 — Posted in Employment Law

Stroppa v. Globe Foundry Ltd., 2005 BCSC 312, is a dismissal case. The defendant business was owned by three siblings. The 47 year old female plaintiff was one of those siblings and was also employed by the business as office manager for a period of 27 years. She was awarded 24 months reasonable notice which was reduced to 20 months due to mitigation issues.

Board of Variance: Third Party Appeals

Posted by Johannes Schenk on September 26th, 2006 — Posted in Municipal Law

Planning matters, whether they relate to development permits, building permits or zoning changes can get pretty heated. Can you say NIMBY? The Salisbury Gardens matter in Vancouver City is a perfect example of a planning matter gone sideways. A developer bought some land and obtained development permits from the City of Vancouver. The neighborhood thought that the land should be a park and two of the neighboring property owners appealed the Director of Planning’s approval of the development permits. The Vancouver Board of Variance overturned the permit approval and denied the development permits.

The decison was reviewed by the BC Supreme Court in Niebuhr et al. v. Vancouver (City) Board of Variance, 2006 BCSC 1425. The Court held that third parties do not have a right to appeal a development permit decision of the Director of Planning to the Vancouver Board of Variance. Third parties do get notice of an appeal hearing and may have standing to judicially review the Director’s decison. However, the right of appeal to the Board of Variance is restricted to the individual applying for the development permit and affected by the Director’s decision. NIMBY be gone.

The decision does away with individuals not materially affected meddling and tying up the development process but, having said that, direct neighbors are now in an unfortunate position of having little recourse to deal with zoning decisions made by the Director of Planning.

Take a look at the approach in Ontario, their Notice of Decision for Regulation and the Development Permits regulation. In developing the development permit system consideration was given to third party appeals and finally rejected.

Contrast this with the approach taken by the City of Calgary Subdivision and Development Appeal Board. Individuals materially affected have an appeal right.

Municipal Bylaw Interpretation

Posted by Johannes Schenk on September 21st, 2006 — Posted in Municipal Law

Interpreting municipal bylaws can be a difficult task at the best of times. You need to rely on every aspect of the bylaw to properly assist your interpretation. It’s not often that you see the recitals relied on but it is proper and they should be considered in support of your position. For the folks that say recitals should not be relied on take a look at paragraph 98 of GVSDD v. Ecowaste Industries Ltd.,2006 BCSC 859. This is an example of the proper reliance on bylaw recitals to interpret a municipal bylaw.

Injunctions: Irreparable Harm and Business Losses

Posted by Johannes Schenk on September 20th, 2006 — Posted in Municipal Law

The Plaintiff in Kosub et al. v. Cultus Lake Park Board, 2006 BCSC 1410, had leased waterfront property from the Parks Board and had spent considerable time and money on improvements on the property. The plaintiff was in the process of building a new boat rental building for tourists and other visitors to the lake and was close to finishing the building when the Parks Board terminated the lease.

The Plaintiff sought an injunction to stop the Parks Board from interfering with the lease and the new boat rental building. In a nutshell, the Court held that there was no irreparable harm. Any damage (business loss and expenses related to the improvements) that the plaintiff suffered was quantifiable and compensable.

I don’t see in the reasons that anyone addressed the position that a waterfront boat rental property on Cultus lake was entirely unique: the loss thereof would be difficult to impossible to compensate. That position may be different than a straight business loss which is generally quantifiable (see: White Room Ltd. v. Calgary (City of), 1998 ABCA 120; Semelhago v. Paramadevan, [1996] 2 S.C.R. 415)

In any event I think it is fair to say that when you are looking for injunctive relief where damages can be quantified your are not getting your injunction.

Dismissal of an “At Pleasure Appointee”

Posted by Johannes Schenk on September 12th, 2006 — Posted in Employment Law, Municipal Law

Dismissal of statutory appointees has recently been examined by the BC Supreme Court in McKenzie v. Minister of Public Safety and Solicitor General et al., 2006 BCSC 1372 and Martin v. The City of Vancouver, 2006 BCSC 1260. Martin involved the wholesale dismisal of the Vancouver Board Of Variance and McKenzie concerns the dismissal of a Residential Tenancy Act arbitrator. Both cases turn on specific statutory language governing the appointments and consider the tribunal’s independence as a factor in determining whether the appointment is truly at pleasure or requires the dismissal to be measured on some basis for cause. The outcome in both cases is different and they make for a contrasting read on dismissal of statutory appointees.