Exceptional Circumstances? O.K. Industries Ltd. v. District of Highlands, 2022 BCCA 12
In Vavilov, the Supreme Court of Canada established three correctness categories which are exceptions to the presumption of reasonableness review. The majority also noted that these categories are not necessarily closed. To date, there has been little interest in identifying new categories, with the exception of Stratas JA’s discussion in Entertainment Software Association (in which the Court will hear the appeal next week). But in O.K. Industries Ltd. v. District of Highlands, 2022 BCCA 12, the British Columbia Court of Appeal recognized a new exception to the presumption of reasonableness review. Or did it?
The issue here was whether the company’s quarrying operations were subject to the District’s bylaws. The company had a provincial permit under mining legislation, but the District insisted that the land to be quarried had to be rezoned.
At first instance, Hinkson CJ granted a declaration that the quarrying operations were not subject to municipal bylaws. The Court of Appeal agreed (though it modified the declaration). Fisher JA’s discussion of standard of review is of general interest. Whereas Hinkson CJ had seen this as a case of overlapping jurisdiction, where two competing bodies could seek to exercise authority over the same subject-matter, Fisher JA thought an additional exception to the presumption of reasonableness review was appropriate:
In my view, the question in this case does not fit comfortably into the categories described by the Court in Vavilov as exceptions to the reasonableness standard. It does not fit well as a question regarding the jurisdictional boundaries between two or more administrative tribunals, as it involves one administrative decision maker (the mines inspector exercising delegated authority under the Mines Act) and a legislative body (the District exercising delegated authority under the Community Charter). While the mines inspector, in issuing the quarry permit, did not purport to limit the general application of District bylaws, it is not his role to make any such determination. Moreover, it is not simply a jurisdictional question or a question of the interpretation of an enabling statute. The vires of the District’s bylaws is not in issue, as was the case in New Westminster. Rather, the issue is whether the bylaws apply to a quarry, in light of the interplay among the numerous provincial statutes governing the regulation of mines and mining activities and the regulatory authority of local governments. In this circumstance, I agree with the Attorney General’s submission that the question plausibly relates to the overarching concept of a question for which the rule of law requires consistency and a final and determinate answer. It is a question with significant legal consequences to the institutions of the provincial and municipal governments that purport to regulate mining resources in British Columbia (at para. 53).
Accordingly, she held, this was one of the “exceptional circumstances” envisaged by the majority in Vavilov which would permit correctness review (at para. 54).
Fisher JA’s cogent discussion prompts three comments.
First, the overlapping jurisdiction category is probably capacious enough to accommodate the facts of a case like this. There is not quite an operational conflict between the mining and municipal schemes (as the company could, ultimately, wait for a successful re-zoning application before commencing its quarrying operations). But there does not need to be an operational conflict for a matter to fall within the overlapping jurisdiction category: the possibility of conflict is enough; and it certainly seems to exist here.
Second, whether the matter falls within the overlapping jurisdiction category or not, it is undoubtedly a situation where correctness review seems appropriate. Here, the company is in something of a quandary, unsure whether to respect the mining or municipal scheme. The issue could arise in future cases too. Having a superior court provide a final, determinate answer resolves the uncertainty.
Third, however, it is questionable whether one even gets to the question of the application of the correctness categories. For the presumption of reasonableness review in Vavilov applies only where “a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme” (at para. 24; one also finds this principle in US administrative law: see Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638 (1990); see also Mark Mancini). Here, the mining decision-makers are not created to interpret municipal bylaws; and the municipality is not created to interpret the mining scheme. Accordingly, the question at issue having not been assigned to any decision-maker, it falls into the inherent jurisdiction of the superior courts and is subject to de novo assessment by the courts.
In practical terms, of course, this makes little difference, as the superior courts have the final word on the conflict at issue in a case like this one. And there is a debate to be had on whether the purposes of Vavilov are best realized by focusing attention on the ‘charged with administering’ principle of para. 24 or the possibility of expanding the correctness categories. Perhaps the simplest solution in this case would have been to assign it to the overlapping jurisdiction category and say no more.
This content has been updated on January 14, 2022 at 14:57.