Breakfast With Appeal: Kitsilano Coalition for Children & Family Safety Society v. British Columbia (Attorney General)

There’s a fine line between legislative intent and legislative meddling, and in a recent decision, the BC Court of Appeal sought to find it, arguing that the B.C. Legislature’s attempt to retroactively pass legislation to allow for amendments to a zoning bylaw constituted an infringement of the separation of powers (originally recorded on February 26, 2025).

Transcript

Yael Bienenstock (00:08): Welcome to Breakfast With Appeal, Torys’ quarterly series on the cases you want to know about. We offer our thoughts on the appellate law that’s shaping Canadian conversations. Let’s dive in.

Andrew Bernstein (00:24): Let's move on to the next case, which is Kitsilano Coalition for Children and Family Safety Society in British Columbia. Okay. So Jeremy: Section 96 of the Constitution Act, 1867 says, “the Governor General shall appoint the judges of the superior district and county courts in each province”. Somehow, this has given rise to an entire suite of constitutional guarantees that have literally nothing to do with judicial appointments. So, since you're a big proponent of that idea, for your sins, you have to set this one up for us.

Jeremy Opolsky (00:56): Listen, Andrew, I will gladly pay for my sins of supporting independent courts’ rule of law [laughter]. It’s not a hard one, in fact if you want to turn that into a nickname, feel free. But, in a nutshell here, there are procedural—

Andrew Bernstein (01:09): Mr. Self-Righteous? Sorry [laughter].

David Outerbridge (01:12): Mr. Rule-of-Law?

Jeremy Opolsky (01:13): That's right, Mr. Rule-of-Law [laughter]. Mr. Self-Righteous is… [laughter]. There were procedural problems with the zoning application. And the B.C. legislature tried to fix them through retroactive legislation, leading to more litigation. And that's what this case is about. So, this story starts, as all good 2025 stories in Canada do, with the housing market. And there is, unsurprisingly, a housing crisis in Vancouver.

One of the steps of the City of Vancouver is taking is to build a 12-storey development with 140 studio apartments in a part of the city called Kitsilano or “Kits”, and that housing development is for low-income Vancouverites or those on support services. But this development needed rezoning. And under the Vancouver Charter, Section 566, a public hearing was required to amend the zoning bylaw.

At the public hearing, anyone who thinks they are affected has a right to be heard. So, here the appellant, the Kitsilano Coalition for Children and Family Safety Society, was incorporated to promote a safe, friendly and open living environment in Kits. They did not like the proposed development and they complained that the public meeting had breached the procedural bylaw and obligations of procedural fairness for a host of reasons, including related to a memorandum of understanding between the city, where the province and the feds that wasn't appropriately disclosed and constrained the discretion of the city to make changes or make requirements.

They said certain issues were off limits for discussion with public hearing, etc. So, the coalition JR’ed the public hearing on the basis that it wasn't a sufficient public hearing for the procedural bylaw. And all of this is interesting, but not really what makes this case BWA-worthy. What makes it very interesting is the province was so concerned that the rezoning would be delayed by the litigation, it passed a new law. 

And the law, Bill 26, known as MEVA Five, says that despite the relevant sections of the Vancouver Charter and procedural bylaw—so despite that these completely valid laws that still exist, despite any decision of the Court to the contrary made before or after this section comes into force—the public hearing was conclusively deemed to be validly held. And the amending zoning bylaw was deemed to have been validly adopted. Remember, this is irrespective of what any court finds about this at all. And then after this law was passed, quite predictably, more litigation ensued.

Andrew Bernstein (03:47): Okay. Yael... okay, first of all, let's take a step back. The Kitsilano Coalition for Children and Family Safety Society. It sounds like if they were getting a nickname, it would be Mr. NIMBY [laughter]. I thought it was a real organization, but in fact, it was just people who don't want a big condo in Kitsilano. Yael, so we've got a case here involving judicial review. Vavilov says that legislative intent is the polar star of judicial review. We know what legislative intent here is: what could go wrong?

Yael Bienenstock (04:24): Section 96?

Andrew Bernstein (04:27): It goes wrong all the time [laughter].

Yael Bienenstock (04:30): It turns out there's a bit of a fine line between legislative intent and legislative meddling in an ongoing court proceeding, and the Court kind of, at the beginning, delineates where this line is. They quote from another B.C. Court of Appeal decision, Barbour, where the Court says it's clear... like, here's what you can do and here's what you can't do.

It's clear in Canada, the legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. So, the legislature can do that. While a legislature may not interfere with the Court’s adjudicative role, it may amend the law in which the Court is required to apply its adjudication. And so, you know, I think you said, isn't this easy?

Delineating the line between those two things, I think, is anything but easy, because they're kind of two separate things that may also overlap. So, its, it's a little bit hard to say. And certainly, the Court I think had a very hard time determining, is this actually permissive? What is allowed, which is enacting legislation that has the effect of altering the law applicable to a dispute, or are you actually interfering with the Court’s adjudicative role?

So, the Court, I think, struggled a little bit with this. They spent a lot of time canvassing a lot of cases looking for guidance, and I think fundamentally find nothing exactly on point. They start their analysis with a discussion of unwritten principles that are implicit in the Canadian Constitution, including in Section 96, judicial—all of Jeremy's favourites, judicial, not that I think any of us have a problem with these—judicial independence, separation of powers, access to justice, the overarching ideal of the rule of law. So, there's a discussion about that. It doesn't, as far as I could tell, really help them in their decision. They don't rely on it in the end. And then they kind of go bouncing around from one case to another, I think, really trying to figure this out, and they come out sort of saying this: where a law is amended in general terms, and the amendment or the replacement of a law is intended to be retroactive, courts have to give effect to the law. That you have to do, even if that amendment or the new law, like, negates rights that existed before, or it makes it easier for the government in an ongoing case, you still have to, the Court is obliged to, apply the law. And the government can enact legislation that, let's say, creates a new cause of action, modifies rules of evidence, burdens of proof, making it easier for the government, that doesn't interfere with the court’s adjudicative role. At the end of the day, you're just setting different rules for the courts, t he courts still are going to do their own job. But what the legislature can't do is, let's say, as an example, they can't legislate the dismissal of a case or direct a court to give a specific judgment. So, they can—this is not what the Court says but I think one way to put it is—they can change the rules of the game, they can't actually direct the result of the game. It seems to me. 

So, then the Court looks at the legislation here that Jeremy talked about. So, this MEVA five, what does it do? It says... because it's kind of in between, it doesn't fall squarely into either of these categories. The legislation says that, despite these other laws that exist and despite any decision of a court to the contrary, whether it's before or after this law, the public hearing is deemed to be valid. The amending by law is conclusively deemed to have been validly adopted by the Vancouver Council. It does actually direct our result. It doesn't say the Court has to decide the result, but it kind of makes what the Court does irrelevant. And as a matter of fact, that was one of the government's arguments here. They said, “we're not interfering with the adjudicative function, we're just saying it doesn't matter what the courts do, it's valid anyways”. 

And the Court of Appeal did not really buy that argument. They said, “that's not actually what you're doing here”. This isn't like some of these other cases where what the law does is amend legislation and put in place new rules of the game that then the Court has to adjudicate.

What it's actually doing is deeming that a particular state of affairs is deemed to exist. It deems things to be true, and in that way, it indirectly directs the outcome of a specific court proceeding. And that's the court's job, not the legislature’s job. And they go on to say, in all the cases that we looked at, the legislation amended a law, it didn't just bypass the courts by essentially deeming a fiction. And that's what you're doing here. So here the Court is essentially bypassed. They're left with no adjudicative role after these so-called amendments. And if we go back and ask the question, “does the law allow the Court to perform its adjudicative role without interference,” the answer is no, because the law essentially says it doesn't matter what the Court thinks, it's irrelevant. And this infringes the court's adjudicative role, contrary to Section 96.

Andrew Bernstein (09:35): I have to say, like, in my view, every piece of legislation indirectly determines [laughter] a judicial...

Yael Bienenstock (09:40): That's why it's really hard.

Andrew Bernstein (09:43): Yeah.

Yael Bienenstock (09:43): I think. It’s it's... I found it difficult, and it felt to me like the Court was struggling too [laughter].

Andrew Bernstein (09:51): To me, it's one of the—anyway, let's throw it over to David. David, the flip side of being Mr. Negligence, but...

Yael Bienenstock (09:56): He’s a smart man [laughter].

Andrew Bernstein (09:57): Is that your... he's the reasonable man! Do you buy this distinction?

Yael Bienenstock (10:02): We all want to be David, by the way.

Andrew Bernstein (10:04): Yeah [laughter].

David Outerbridge (10:05): I'm on my omnibus [laughter].

Andrew Bernstein (10:08): Do you buy into this distinction between changing substantive law and changing a judicial outcome? And is this something that, you know, clever legislature can always draft around?

David Outerbridge (10:22): So, the principle I buy into is that courts always have a role in a democratic society. And you can't oust the role of the court completely. The legislature can't just say, “we do what we want”. You know, maybe people south of the border feel like they should be able to do that, but, you know, in Canada [laughter], the courts have a role that they have to be able to review legislative and executive action for some things.

This case, to me, strikes me as a bit of a dog's breakfast created by, maybe, not the best choice of legislative drafting techniques. You know, legislatures all the time direct things to be deemed— you know, in the criminal law context, an over 80... if you blow over 80, you're deemed to be guilty of, you know, certain elements of the offense of what would otherwise be impaired driving are deemed to exist, you know, so courts are directed to treat certain things as proxies from an evidentiary perspective from, for other things.

In this case, the law was telling them to deem that the meeting, you know, the proper notice is properly held, etc., etc. And I think what happened is that the legislation basically said, we're going to deem these facts and we're going to say that these facts exist regardless of what a court says. And that's like waving a red flag from a separation of powers perspective to the courts.

But what they could have done is said, for this address, at this location in Vancouver, no zoning law applies. Period. You know, this eliminates zoning requirements for this address. Then there wouldn't need to be a notice. It wouldn't need to be a meeting, it wouldn't need to be a hearing, etc. It would have changed the substantive law, and therefore, none of these complaints could have been made and the Court would have just said, well nothing to see here.

You know, that I think would have been entirely within their power because zoning is not a constitutional law principle. It's not something that's protected by anything other than statute and municipal bylaw. And they could have just eliminated that. But they chose to say, you know, “courts, you're not allowed to touch this”. And, you know, I understand why the courts didn't like that from a Section 96 separation of powers perspective.

So, as I say, it's much ado about nothing. I think they could have gotten the same result if they just drafted differently, but in terms of the actual case, I tend to think it's probably the right outcome, even if it's irrelevant in the grand scheme of things [laughter].

Andrew Bernstein (12:26): Thanks, David. Okay, so, Jeremy, last word to you. It sounds like I'm the only real holdout on this panel on Section 96. But just help our audience understand, what does all this Section 96 get us, and do it without reference to the U.S. president [laughter]. In part because I think what Section 96, you know, has been used to not just resist executive action, but also used to resist legislative action.

So why is it that this provision, which really just speaks to appointments, can be used to effectively override democratic legislatures? Why do we need it? And what would we give up if the Supreme Court came to its senses and said, “oh, this means the governor general should appoint the judges”?

Jeremy Opolsky (13:14): I mean, Andrew, again, happy to defend the rule of law. This is a good, good place for me. And what does Section 96 do? You're right that it is an appointment provision, but it falls within the context of 96 through 100 of creating superior courts, as one branch of government, as an incredibly important part of how we view our democratic and legal foundations.

And what it does or what it's been interpreted to do, is protect the special status of the superior courts of general jurisdiction as the cornerstone of our unitary justice system. So, what does that mean? It means it enshrines the rule of law by encoding the separation of powers and safeguarding a core of the Superior Court's jurisdiction. And yes, that can be against the executive sometimes, but also against infringements by the legislature.

It also means it gives the superior courts a unitary and national nature.  By having a federally appointed judiciary in a court of inherent jurisdiction, it means that what the provinces can do to take away from that core jurisdiction has limits. Right? And we saw that in the recent Québec case about the Court of Québec trying to remove jurisdiction from the courts.

We've also seen in cases about small claims court and cases about, about administrative tribunals. It protects interference by the legislatures in the exercise of their jurisdiction and powers, which they have over local matters that effectively infringe upon the very essence of superior courts. 

So, what does that all mean? It means the core of the superior court's jurisdiction, including reviewing constitutionality of laws, the enforcement of those courts’ orders like this case, protecting its own procedure, and protecting the residual and inherent jurisdiction, are all protected from infringements.

And yes, it has been interpreted broadly. B.C. Trial Lawyers is probably the broadest interpretation, which said that fees at the Court could get to a point where they were too high that it would be prohibitive to access to justice, and then in turn violate Section 96, because a lack of the ability to access the courts was a corollary of the court's core jurisdiction.

But again, Andrew, I think—and I want to make this brief—but I think really looking at Section 96, well, Section 96 is often touted as the core of these issues. It really is 96 through 100 and Section 11 of the Charter, which together operate to protect the independence of the judiciary, to protect independent pay and pensions and appointments, and infringements from the government.

And that all comes to a head in the Crevier case, which you and I disagree on in terms of the protection of the superior courts and the role for judicial review. And the role of privative clauses and removing the ability of superior courts to review certain actions of the executive. And we could talk about this for 20 minutes, 30 minutes, so, I won't. I will say, though, that I think this is coming to a head. And we saw it in Democracy Watch, the Federal Court of Appeal, where the judges disagreed in the role of privative clauses. And I would bet good money that within the next two years, we here at Breakfast With Appeal will be spending a significant amount of time talking about a case that will, probably at the Supreme Court, that will put this issue at the fore. To what degree does Section 96 prevent the government from removing the ability of courts to review executive action?

Andrew Bernstein (16:39): Yeah, it’s going to be really interesting to see what the courts do here. I mean, I think more... I think judges are more sympathetic to your view of all of this than mine, which is, you know, basically judges have a lot of power, and that you can’t get rid of... But I agree with you, it’s going to be really interesting.

Okay, so thank you everyone for dealing with the main courses. I think our ad, our promo talked about small plates and large plates. But I think we’re set it up more like dinner and dessert or breakfast and dessert.

That about wraps up our conversation. Before we go, I want to remind our listeners that they can find the webinar version of this edition of breakfast of the peel, along with previous episodes on stories.com, and that our BWA program is eligible for one substantive hour of continuing professional development. Thanks again for joining us and take care.