Municipal Inspection Powers

Posted by Johannes Schenk on April 12th, 2007 — Posted in Municipal Law

Municipal inspectors have tremendous powers under the legislative schemes that govern their inspection powers. Brewster v. City of New Westminster, 2006 BCSC 1837 is a case that concerns the powers of a City of New Westminster municipal fire inspector. The fire inspector made an order to remove a canoe from a parking space on the basis that the canoe was a fire hazard according to the New Westminster Fire Protection Bylaw.

The Fire Protection Bylaw adopts the National Fire Code and is similarily worded to fire safety bylaws in other BC municipalities such as Vancouver, Burnaby and Surrey.

The Judge in this case held that the fire inspector was subject to review on a standard of patent unreasonableness. The parties agreed that the inspector’s juridiction was to be reviewed on correctness and that his decison was to be reviewed on a patently unreasonable standard. I’m not quite sure how you do that, and in any event I’m not sure that someone like a fire inspector should always have the benefit and protection of a patently unreasonable standard of review (they get to be wrong to the point of unreasonableness). While an inspector will have inspection expertise, he is after all interpreting a statute/bylaw, something the Court can do, there is no privitive clause and a fire inspector’s decisions are often appealable under the Fire Safety Act. And in any event why agree to a review standard that is almost impossible to argue around?

I have noticed on several occassions now that the reasons in United Taxi have been adopted as a catchall response to standards of review to be applied to a municipal decision maker: if it’s municipal, review it on a patently unreasonable standard. This is not what Unted Taxi stands for and not the kind of power that should be granted to municipal officials in the absence of a legislatied basis. United taxi actually says:

The only question in this case is whether the freeze on the issuance of taxi plate licences was ultra vires the City under the Municipal Government Act. Municipalities do not possess any greater institutional competence or expertise than the courts in delineating their jurisdiction. Such a question will always be reviewed on a standard of correctness: Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13, at para. 29. There is no need to engage in the pragmatic and functional approach in a review for vires; such an inquiry is only required where a municipality’s adjudicative or policy-making function is being exercised.

That certainly doesn’t take you to an automatic review on a patently unreasonable standard.

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