COURT OF APPEAL
FOR BRITISH COLUMBIA

Citation:

Wu v.
  Vancouver (City),

2019 BCCA 23

Date: 20190121

Docket: CA44963

Between:

Zheqiang Wu and Binxia Cao

Respondents

(Plaintiffs)

And

City of Vancouver

Appellant

(Defendant)

Before:

The
  Honourable Mr. Justice Harris

The
  Honourable Madam Justice Dickson

The
  Honourable Madam Justice Griffin

On appeal from:  An order of the Supreme Court of British
Columbia,
dated November 14, 2017 (
Wu v. Vancouver (City)
, 2017 BCSC 2072,
Vancouver Registry S144129).

Counsel for
  the Appellant:

D.R. Bennett, Q.C. and E.C. Lapper

Counsel for
  the Respondent:

R.D. Holmes, Q.C. and M. Good

Place and
  Date of Hearing:

Vancouver, British Columbia

September 18, 2018

Place and
  Date of Judgment:

Vancouver, British Columbia

January 21, 2019

Written
  Reasons by:

The
  Honourable Mr. Justice Harris

Concurred
  in by:

The
  Honourable Madam Justice Dickson

The
  Honourable Madam Justice Griffin

Summary:

Appeal of a judgment recognizing a private law duty of care
imposed on municipal officials to make a decision on a development permit
application in a reasonable time and concluding the duty breached. Appeal
allowed: the proper remedy for delay in making a decision is mandamus. The
public law duty cannot be converted to a private law duty. The regulatory
scheme does not create the necessary proximity to justify recognizing a private
law duty of care. Policy reasons, in any event, justify negativing a prima
facie duty of care. The order cannot be supported on alternative grounds.

Reasons for Judgment of the Honourable Mr. Justice
Harris:

Introduction

[1]

The City of
Vancouver appeals an order declaring the City liable to compensate the
respondent homeowners for failing to make a decision on a development permit
application within a reasonable time. The consequence of not making a decision
was that the respondents arguably lost a right to compensation that would
otherwise have been available to them under certain bylaws existing at the time.

[2]

The judge found that
the City, through its officials and Council, acted intentionally and in bad
faith in delaying a decision on the development permit application until a
change in applicable bylaws removed a right to compensation that previously
existed. The judge concluded, nonetheless, that the respondents failed to make
out the tort of abuse of public office and they were not entitled to a remedy
in the nature of
mandamus
compelling the issuance of the development
permit. Rather, the judge recognized in the law of negligence a novel private
law duty of care to make a decision within a reasonable time in accordance with
the applicable bylaws. She found the City, in bad faith, breached that duty.

[3]

For the reasons that
follow I would allow the Citys appeal.

Background

[4]

The respondents
bought a home in the First Shaughnessy District (FSD) of Vancouver in
December 2011. The house was built before the First World War. When they bought
the house, they knew of land use restrictions that could affect their right to
demolish and replace the house. They understood, however, that under the
existing rules if the City refused the respondents right to demolish the house
and the parties could not agree on terms for its retention, the City was
obliged to compensate the respondents for the propertys resulting loss of
value.

[5]

Given the view I
take of this case, it is not necessary to outline the background and the
regulatory regime in detail. The essential bylaws are found as an appendix to
these reasons. As well, further detail may be found in the reasons for judgment
from the Court below, indexed as 2017 BCSC 2072. The history of the Citys
attempts to protect the heritage character of FSD and the regulatory changes to
do so implemented over many years are explained in
Cummings v. City of
Vancouver
, 2016 BCSC 1918.

[6]

The City has long
evinced a desire to protect the historic character of FSD and preserve homes of
heritage value within it. In 1982, the City rezoned FSD. It also adopted the
First Shaughnessy Official Development Plan (FSODP) with the goal to
preserve and enhance First Shaughnessys unique character. The goals
contained in the FSODP represented the basic planning philosophy for FSD, and
the Citys Director of Planning had to take these goals into account when
considering new development in FSD. Those goals were more fully articulated in
First Shaughnessy Design Guidelines (Guidelines). The Guidelines informed the
interpretation and implementation of the FSODP and provided a framework for
reviewing all new development in FSD.

[7]

One issue in this
case is whether the respondents proposed development was consistent with the
Guidelines even if the development permit application was, as the judge found,
otherwise complete.

[8]

The process
governing development in FSD became more complicated in 1994 when Council
created the First Shaughnessy Advisory Design Panel (Design Panel). The
Design Panel was an advisory body that assisted the City in implementing
planning policy by reviewing all development applications for FSD. The mandate
of the Design Panel was to preserve and protect the heritage and special
character of the [FSD].

[9]

In 1994, Council created
the First Shaughnessy Heritage Inventory (Heritage Inventory), listing all
353 pre‑1940 homes. Homes were listed on the Heritage Inventory for
planning purposes. Being listed did not confer heritage status or protection.
It identified properties as eligible for development incentives to encourage
retention. In order to be protected as heritage property, a property had to be
added to the Heritage Register by order of Council pursuant to s. 582 of
the
Vancouver Charter
, S.B.C. 1953, c. 55. The respondents
property was listed on the Heritage Inventory but not on the Heritage Register.

[10]

By the early part of
this decade, pressure to demolish pre‑1940 homes and replace them with
new homes increased significantly. In response to the increase in proposals to
demolish pre‑1940 homes, an administrative bulletin was published by the
City Planning Department in May 2012 (2012 Bulletin). The Bulletin was
amended in November 2012 and again in February 2013.
The stated objective was reconfirmed:
preserving and protecting FSD character through the retention of pre‑1940
houses of merit. The 2012 Bulletin required all pre‑1940 homes to be
evaluated for merit prior to approving demolition permits.

[11]

The Bulletin set out
a process of careful analysis to establish the heritage merit of pre‑1940
homes. This could include the provision of a Statement of Significance (SOS).
Ultimately, the Director of Planning would decide if a property had heritage
merit. If so, that determination would have to be addressed in any subsequent
application for a development permit and the City would encourage the
propertys retention. If the Director of Planning favoured retention, but the
homeowner still wished to demolish the home, the Director could recommend to
Council that the house be protected by a designation as protected heritage
property. In that event, the City would be required to compensate the
homeowner for any loss of value under the existing bylaws.

[12]

This describes some
of the basic regulatory principles in place at the time the respondents engaged
in pre‑application discussions with the City about their plans to
demolish the house. In May 2012, Mr. Leyland, the respondents architect,
met with the Design Panel and presented their proposed plans. At this meeting,
the City presented a heritage evaluation report prepared by Hugh McLean, a
heritage planning analyst with the City. Mr. McLeans report recommended
that the property be designated with heritage status. Shortly after the May
meeting, the City requested that the respondents prepare retention studies. On
October 3, 2012, the City wrote to Mr. Leyland advising the Director
of Planning had reviewed the merit evaluation and retention studies, a
confirmation of merit of the house had been established, and the Director of
Planning would therefore seek retention of the house. The judge found that the
October 3, 2012 letter represented a decision by the City that the house
had heritage merit and needed to be retained: at para. 96.

[13]

On January 30,
2013, the respondents submitted a development permit application to the City
for the demolition of the house and construction of a new single-family
dwelling. The judge found that the application was complete and that the
respondents had submitted all of the materials the City required to make a
decision with respect to the application: at para. 22. This conclusion is
in issue on appeal.

[14]

The judge concluded
that, at this point, the City had three options for dealing with the
application: (1) permit the demolition of the house and new development;
(2) reach an agreement with the plaintiffs to retain the house with
incentives; or (3) designate the property as protected heritage property
and compensate the respondents for any resulting loss of value under s. 595
of the
Vancouver Charter
: at para. 20.

[15]

With respect, I
think the judge was wrong to limit the Citys options in this way. In fact, the
City could have rejected the application if the proposed development did not
comply with the Guidelines. Indeed,

the
City was required by s. 1.6 of the FSODP to comply with Zoning and
Development Bylaw, and the related goals, development principles, regulations,
and all applicable policies and guidelines adopted by Council, including those
in the FSODP and the Guidelines.

[16]

Alternatively, the
Council could have, as it did later, resort to its power under the bylaws to
impose a temporary 120‑day heritage protection order on the property or pass
a more general order protecting all properties in the neighbourhood.

[17]

Between January and
April 2013, City staff discussed internally the possibility of recommending to
Council that the property be designated as protected heritage property and
compensating the respondents. Designation under s. 593 of the
Vancouver
Charter
would have been an unprecedented step. The record discloses that
the City had never unilaterally designated a property under s. 593 of the
Vancouver
Charter
, requiring it to pay compensation under s. 595. Rather any
designation had been by agreement, including as to the amount of compensation.
The risk of designation, absent agreement on compensation, leading to an
uncertain amount of compensation determined by arbitration had not been taken
by the City.

[18]

The record also
discloses that early in 2013 a policy concern was developing in the City that
the existing regulatory regime was proving ineffective in protecting heritage
properties and preventing developments that were inconsistent with its
conservation policies. As a result, on May 15, 2013, Council passed a
motion requesting staff review the Citys Heritage Conservation Program and
identify potential improvements to it. This motion led to Council approving a
Heritage Action Plan to update and strengthen the Citys heritage conservation
programme on December 4, 2013. These facts were in the public domain.

[19]

In the meantime, on
February 15, 2013, the City advised Mr. Leyland that the respondents
needed to submit an SOS prepared by an independent heritage consultant in order
to finalize the merit question for the house. The judge was critical of the
City for requesting the SOS, given her finding that the Director had already
decided the home had heritage merit and for other reasons.

[20]

On July 19, 2013,
the respondents submitted an SOS to the City. On September 16, 2013, the
Vancouver Heritage Commission recommended that the property be added to the Heritage
Register. It also requested revisions to the SOS. As I understand it the City took
the view that the proposed development was inconsistent with the FSODP.

[21]

Following that
decision, Mr. Leyland met with the City to reiterate that the respondents
wanted to demolish the house. On November 7, 2013, the Director of
Planning wrote to Mr. Leyland indicating that staff would recommend
Council add the house to the Heritage Register if the respondents wanted to
proceed with the development permit application. However, on November 25,
2013, the Director of Planning recommended to Council that the property be
granted temporary heritage protection under s. 589 of the
Vancouver
Charter
, to allow staff time to assess retention options for this property
which is a candidate for addition to the Vancouver Heritage Register. This was
done. Accordingly, the property was granted temporary heritage protection.

[22]

During the 120‑day
temporary protection period, the City continued to encourage the respondents to
consider incentives to retain the house. The respondents reiterated they were
not interested in retention. Following the expiry of the temporary protection
period, the respondents did not hear anything further from the City regarding
their application.

[23]

As mentioned
earlier, on
December 4,
2013, Council approved the Heritage Action Plan to update and strengthen the Citys
heritage conservation programme.

[24]

One action item in
the Heritage Action Plan was a review of the FSODP to consider the
establishment of a heritage conservation area for FSD as a unique and historic
neighbourhood. The Heritage Action Plan recommended a review of the FSODP to
consider the establishment of a heritage conservation area in FSD and a period
of temporary protection for FSD. The stated rationale for was:

In
the past few years there have been increasing concerns in First Shaughnessy
including the number of demolition proposals for houses, the use of double
height interior spaces which result in large-scaled or bulky houses, and the
loss of some of the areas landscape features. A comprehensive review of the
[FSODP] has not been undertaken since it was approved in 1982, even though
periodic reviews and updates of the adopted document were intended.

[25]

I note in passing
that the respondents application raised a number of concerns reflected in the
quoted rationale, including issues to do with bulk and scale, roof lines, and
landscaping.

[26]

In May 2014, the
plaintiffs started this action seeking an order in the nature of
mandamus
to compel issuance of the development permit or, in the alternative, alleging
abuse of public office, expropriation, and negligence.

[27]

On June 24,
2014, less than one month after the respondents claim was filed, Council
enacted Bylaw 10991, establishing a heritage control period for FSD. The
purpose of this bylaw was to ensure that no pre‑1940 buildings were
demolished unless authorized by a heritage alteration permit while work to
review the FSODP under the Heritage Action Plan was underway. Pursuant to
ss. 590(2) and (5) of the
Vancouver Charter
, such a heritage
control period is effective for no longer than one year and can only be
implemented in a single area once in a 10‑year period.

[28]

A report dated May 29,
2015, from the Citys General Manager of Planning and Development Services, recommended
that the FSODP be repealed, that Council enact a city‑wide Heritage
Conservation Area Official Development Plan and bylaws designating First
Shaughnessy as the first heritage conservation area in the City. In part, these
recommendations reflected the concern about a significant increase in enquiries
and applications to demolish pre‑1940 homes. The report also identified
that one advantage of adopting the HCA Bylaws was that no compensation would be
payable to homeowners who were refused permission to demolish existing houses.

[29]

On September 29,
2015, after public hearings, Council repealed the existing FSD zoning bylaw and
the FSODP and enacted Bylaw Nos. 11352 and 11349 (the HCA Bylaws),
establishing a new district schedule for First Shaughnessy and the Heritage Conservation
Area Official Development Plan (HCAODP) respectively. The HCA Bylaws and
HCAODP established FSD as a heritage conservation area and prevented the
demolition of any house in the area unless the Director of Planning decided the
house no longer of sufficient heritage character or value. Designation of FSD
as a heritage conservation area also had the effect of removing the requirement
that the City pay compensation to homeowners under s. 595 of the
Vancouver
Charter
.

[30]

The property is now
subject to the HCA Bylaws and HCAODP. Once a development plan is adopted as
official by Council, s. 563 of the
Vancouver Charter
mandates
that the City cannot authorize, permit, or undertake any development contrary
to or at variance with the official development plan. As a result, as the
judge recognized, the HCA Bylaws and HCAODP frustrated the respondents plans
to develop the property: at para. 94.

Reasons for Judgment

[31]

The judge held that
the City had embarked upon a circuitous course of delay with respect to the
application: at para. 96. She concluded that the Citys conduct in
repeatedly asking the plaintiffs to consider retention of the House; requiring
an SOS; requesting the respondents prepare retention studies; granting a
temporary protection period for the property; and failing to seek heritage
protection; all constituted delay tactics by the City: at para. 96.

[32]

The judge was
satisfied that the City had acted in bad faith in dealing with the application:
at para. 97. She inferred that the only rational explanation of the Citys
actions was that it delayed making a decision until the HCA Bylaws were passed,
thereby avoiding the requirement to pay compensation: at paras. 98, 223.

[33]

Nonetheless, the
chambers judge concluded the respondents had not established the tort of abuse
of public office or misfeasance (paras. 114‑15) or the requirements
for a finding of expropriation: at paras. 119‑21. Moreover, she
dismissed the application for
mandamus
on the basis that the City had an
option either to grant the application or designate the property and pay
compensation: at paras. 236‑38.

[34]

On the primary issue
on appeal, the judge recognized the City owed the respondents a novel duty of
care to make a decision on the plaintiffs development permit application, in
accordance with the applicable laws, and to do so within a reasonable time: at
paras. 173, 191, 211. She found the meaning of within a reasonable
time could be established by reference to the Citys average processing time
for a development application (10‑14 weeks) and the time limits set out
in section 4.2 of the Citys Zoning and Development Bylaw which provide
for the expiry of an application for a development permit after one year: at para. 216.

[35]

Relying on her
findings of bad faith, the judge concluded that the City had breached its
standard of care (at paras. 223‑24) resulting in direct and
foreseeable economic losses.

[36]

Given her findings
that the City never intended to grant the respondents a development permit because
of the heritage merit of the property, and given that the respondents were not
interested in retention, the judge concluded the only option for the City was
to designate the property as heritage and provide compensation. The Citys failure
to do so within a reasonable time wrongfully deprived the plaintiffs of the
compensation they were owed under the existing bylaw: at para. 232.

[37]

The quantum of
damages was set to be determined at a subsequent hearing.

Analysis

The public law duty

[38]

The judge concluded
that under the bylaws the City owed the applicants a duty of care to make a
final decision on a development permit application within a reasonable time, in
accordance with the applicable statutory framework: at paras. 191, 211.

[39]

The duty, as
characterized by the judge, is equivalent to and no different from the public
law duty owed to applicants as a result of the empowering enactments. Public
officials are under statutory duties to act in accordance with obligations
imposed on them by statute, which also serve as the source of their authority
to act. Public law duties exist in any circumstance where a public official is
authorized and obliged to process an application seeking a grant of permission
to act in certain ways.

[40]

Where an official
fails to act in a manner required by statute and accordingly breaches his or
her statutory obligations, remedies exist in administrative law. For current
purposes, it is sufficient to note that the duty described by the judge is
simply a duty to make a decision, not to make a particular decision where the official
has a choice or a discretion about what decision to make within the regulatory
scheme.
Mandamus
lies to compel an official to make a decision. It is a
remedy for delay. Its availability does not depend on an official having a duty
to make a particular decision. This proposition is illustrated by
Dagenais
v. Trenton
(1893), 24 O.R. 343 (Ont. C.A.), in a municipal law
context, but it is a principle of wider application. As Justice LeBel explained
in
Blencoe v. British Columbia (Human Rights Commission)
, 2000 SCC 44:

[146]    The
notion that justice delayed is justice denied reaches back to the mists of time.
In
Magna Carta
in 1215, King John promised: To none will we sell, to
none will we deny,
or delay
, right or justice (emphasis added [in
original]).

[149]    Today,
there is no doubt that mandamus may be used to control procedural delays. In
the middle of the last century, a British Columbia Court of Appeal judgment
recognized the principles behind mandamus, stating that [t]he high prerogative
writ of mandamus was brought into being to supply defects in administering
justice  (
The King ex rel.

Lee v. Workmens Compensation Board
,
[1942] 2 D.L.R. 665, at p. 678). It went on to note that the granting of
mandamus was to be governed by considerations which tend to the speedy and
inexpensive as well as efficacious administration of justice (at p. 678,
cited with approval in
Harelkin v. University of Regina
, [1979] 2 S.C.R.
561).
Members of our Court have on occasion alluded to the use of mandamus
specifically to control delay.
(See notably:
R. v. Bradley
, [1941]
S.C.R. 270, at p. 277,
per
Duff C.J.;
Rourke v. The Queen
,
[1978] 1 S.C.R. 1021, at p. 1027,
per
Laskin C.J.; and
Rahey,
supra
, at pp. 624‑25,
per
Wilson J., and p. 631,
per
La Forest J.)

[Emphasis
added.]

[41]

The public law obligation
to make a decision in a reasonable time is reflected in a number of cases: see,
for example,
Austin v. Canada (Minister of Consumer and Corporate Affairs)
(1986),
10 F.T.R. 86 (F.C.T.D.) (obligation to exercise discretion within a reasonable
time: at para. 6);
Ramsay v. Toronto (City) Commissioners of Police
(1988),
66 O.R. (2d) 99 (Div. Ct.) (
mandamus
requires a statutory duty to
be done, not the way it is done, decision to be made without ordering what
decision). In
Dass v. Canada (Minister of Employment and Immigration)

(1996), 193 N.R. 309 (F.C.A.), the point is put clearly:

[17]
This is not to say that the officials may make unlawful decisions without
review, or delay indefinitely making a decision. A decision once communicated
may be open to attack on judicial review.
And if there is undue delay in
processing an application for landing it is always open to the applicant to
apply for

mandamus
, not to require a specific decision
but rather to require that a

decision be taken
.

[Emphasis added.]

[42]

These considerations
are pertinent here. On the judges reading of the Citys statutory obligations,
the City had a discretion to decide whether to approve the development permit
application or put the house on the Heritage Register and pay compensation. The
respondents did not have a right to a particular decision, but they did have a
right to a decision. The duty as defined by the judge is nothing more than the
public duty articulated as or converted into a private law duty of care.

[43]

This brings us to
the first problem with the judges analysis. It is a settled principle that
Canadian law does not recognize a nominate tort of breach of statutory duty. As
The Queen (Can.) v.

Saskatchewan Wheat Pool
, [1983] 1 S.C.R. 205,

and
Holland v. Saskatchewan
, 2008 SCC 42, make clear, there is no
duty of care imposed on officials to act in accordance with authorizing
statutes or regulations. Standing alone, a breach of a statutory duty is not a
breach of a private law duty of care. While a breach of statutory duty is
subsumed within the law of negligence, a breach of a statutory duty can be
evidence of negligence. As a general rule, a breach of a public law duty is not
sufficient to establish the breach of a private law duty. The first is not
readily converted to the second. The existence of a private law duty of care
must be established by the application of common law principles.

[44]

This proposition is
illustrated by the decision of the Supreme Court of Canada in
Holland
.
In that case, the Supreme Court of Canada upheld a decision of the Saskatchewan
Court of Appeal striking a claim in negligence based on a failure of public
officials to act in accordance with the authorizing acts and regulations. The
statement of claim had explicitly alleged a duty of care to ensure that the legislative
framework at issue was administered in accordance with the law. McLachlin C.J.,
writing for the Court, outlined the alleged acts of negligence as follows:

[7]
The statement of claim, read generously as required in an application to
strike, focused mainly on two alleged acts of negligence: requiring the game
farmers to enter into the broad indemnification agreement, and down-grading the
status of those who refused to do so.
In both cases, the alleged fault may
be described as failing to act in accordance with the authorizing acts and
regulations
.

[Emphasis
added.]

[45]

The Supreme Court of
Canada relied on
Saskatchewan Wheat Pool
for the principle that the law
does not recognize an action for negligent breach of statutory duty and that
mere breach of statute is not negligence. The Court endorsed the view that the
law has not recognized an action against a government authority for negligent
breach of statutory duty by acting outside or contrary to the law. The issue
thus became whether a new instance of negligence should be permitted, by
reference to the principled
Anns/Cooper
analysis (
Anns v. Merton
London Borough Council
, [1978] A.C. 728;
Cooper v. Hobart
, 2001 SCC
79). The Chief Justice reasoned:

[9]        In my
view, the Court of Appeal was correct in these conclusions. The law to date has
not recognized an action for negligent breach of statutory duty. It is well
established that mere breach of a statutory duty does not constitute
negligence:
The Queen in right of Canada v. Saskatchewan Wheat Pool
,
[1983] 1 S.C.R. 205 (S.C.C.). The proper remedy for breach of statutory duty by
a public authority, traditionally viewed, is judicial review for invalidity. The
appellant pursued this remedy before Gerein C.J.Q.B. and obtained a
declaration that the government's action of reducing the herd certification
status was unlawful and invalid. No parallel action lies in tort.

[10]      The
next question was whether a hitherto unrecognized relationship of potential
liability in negligence should be recognized under the
Anns
test.
Assuming, without deciding, that the legislative and regulatory matrix
established proximity between the Class and the government at the first step,
policy considerations would negate recognition of liability, as the Court of
Appeal detailed. These include the chilling effect and specter of indeterminate
liability. As Richards J.A. stated at para. 43 of the Court of
Appeals decision:

... the
respondents theory of liability would fundamentally shift the way in which the
public and private spheres historically have carried the consequences or burden
of governmental action which is shown to be ultra vires. I see no policy reason
which would warrant such a dramatic revision in the shape of the law and, as
indicated above, see much which cuts tellingly against shaping the law in the
manner sought by the respondent.

[46]

The principles set
out in this case were quoted and relied on by this Court in
Ari v. Insurance
Corporation of British Columbia
, 2015 BCCA 468, albeit in a somewhat
different context.

[47]

With respect, the
analysis in
Holland
appears to me to be directly applicable to this
appeal. The duty described by the judge is no more than an action for negligent
breach of statutory duty by a public authority. The proper remedy is judicial
review. A failure to act as required by statutory authority is properly
remedied by an order in the nature of
mandamus
compelling the authority
to decide. The duty recognized by the judge amounts to a fundamental shift in
the way in which public and private spheres have historically addressed
improper governmental action.

The
Anns/Cooper
analysis

[48]

Notwithstanding the
problem just identified, it remains necessary to consider whether the duty the
judge recognized could survive the
Anns/Cooper
test for identifying
novel private law duties of care. Indeed, the judge engaged in an
Anns/Cooper
analysis in recognizing a private law duty of care. I will address the judges
reasons in order to explain why, in my opinion, the judges analysis does not
avoid the result in
Holland
. As I shall attempt to demonstrate, the judges
analysis does not engage sufficiently with the law concerning the circumstances
in which proximity can be established in connection with the existence of a
scheme of regulation in the public interest.

[49]

The law concerning
the recognition of a private law duty of care has evolved significantly in
recent decades. This evolution has occurred within the
Anns/Cooper
framework. I will return later to the issue of whether the law already
recognizes the duty recognized in this case. I agree with the judge that if
such a duty does exist, it must be rooted in the principled
Anns/Cooper
framework since the duty is novel.

[50]

The most significant
evolution in applying the
Anns/Cooper
framework is the increasing
emphasis placed on the analysis of proximity, at the expense of reasonable
foreseeability, as the critical element in recognizing a
prima facie
duty of care. In
Cooper
, the Supreme Court of Canada made clear that
reasonable foreseeability standing alone is insufficient to ground a
prima
facie
duty of care. In addition to reasonable foreseeability, there must be
proximity:
Cooper
at para. 42. In
Deloitte & Touche v. Livent
Inc. (Receiver of)
, 2017 SCC 63, the Supreme Court of Canada has recently
traced the refinements in the
Anns/Cooper
framework placing greater
emphasis on a robust analysis of proximity as the touchstone for recognizing a
novel
prima facie
duty of care.

[51]

The law has not
defined proximity with precision. Indeed, as was said in
Cooper
, the
word may amount to little more than a label identifying the type of
relationship in which duties of care arise:
Cooper
at para. 31.
Nonetheless, one can recognize the kind of considerations pertinent to
analysing proximity. Such relationships are said to be close and direct:
Cooper
at para. 32. They may involve physical closeness, direct relationships
or interactions, the assumption of responsibility; or turn on expectations,
representations, reliance, or the nature of property or other interests
involved: see,
Cooper
at paras. 32‑34. In short, proximity
recognizes those circumstances in which one individual comes under an
obligation to have regard for the interests of another so as to be required to
take care not to act in a manner that would cause injury to those interests.
Proximity involves an analysis both of the nature of the relationship between
the parties and the kind of harms carelessness might cause: see
The Los Angeles
Salad Company Inc. v. Canadian Food Inspection Agency,
2013 BCCA 34. It
involves having regard to all relevant factors arising from the relationship
between the parties:
Deloitte
at para. 29.

[52]

The evolution in the
Anns/Cooper
framework is also reflected in cases dealing with the
recognition of private law duties owed by public authorities. The historical
emphasis on the distinction between operational and policy decisions has been
overshadowed by a more rigorous proximity analysis. One of the difficult issues
has been the role that a statutory scheme of regulation plays in analysing
whether sufficient proximity exists between a public authority and a claimant
to justify recognizing a
prima facie
private law duty of care. In
relation to the proximity analysis in relation to public authorities, the issue
is complicated first by the underlying principle that no nominate tort of
breach of statutory duty is recognized in Canada, and second by the fact that
public authorities generally have powers and duties to act in the public
interest rather than in a manner designed to protect the private interests of
individuals affected by a scheme of regulation.

[53]

Some general
principles apply to the recognition of
prima facie
private law duties of
care owed by public regulators to private parties.

[54]

First, it is
possible that a private law duty of care may arise explicitly or by necessary
implication from a statutory scheme: see
R. v. Imperial Tobacco
Canada Ltd.,
2011 SCC 42 at para. 43. The existence of a statutory
scheme of regulation does not foreclose the possibility of finding proximity.

[55]

Second, while a
scheme of statutory regulation may be relevant to whether proximity exists,
generally the existence of such a scheme is insufficient to support a finding
of proximity. The Supreme Court of Canada appears to have moved beyond its
statement in
Edwards

v. Law Society of Upper Canada
, 2001 SCC 80
at para. 9, that factors giving rise to proximity must be grounded in the
governing statute if one exists. More recently, in
Reference re Broome
v. Prince Edward Island
, 2010 SCC 11, Justice Cromwell observed that
statutory duties do not generally, in and of themselves, give rise to private
law duties of care: at para. 13. A similar view is found in
Alberta v.
Elder Advocates of Alberta Society
, 2011 SCC 24. In that case, the Chief
Justice, endorsing
Broome
, reasoned that [w]here the defendant is a
public body, inferring a private duty of care from statutory duties may be
difficult, and must respect the particular constitutional role of those
institutions:
Alberta
at para. 74. Much the same view was
articulated in
Imperial Tobacco
. In that case, the Court noted [i]t may
be difficult to find that a statute creates sufficient proximity to give rise
to a duty of care: at para. 44.

[56]

Third, a principal
reason why public law duties are, standing alone, generally insufficient to
create proximity is because statutory schemes generally exist to promote the
public good. To the extent that one conceives the issue as a matter of
legislative intent, as the Supreme Court of Canada noted in
Imperial Tobacco
,
it is difficult to infer that a legislature intended to create a private law
duty where a scheme is aimed at a public good: at para. 44. Viewed in this
way, the question is whether the legislature intended as a positive matter to
create a private law duty notwithstanding that the scheme is aimed at promoting
the public good. The basic proposition remains, however, that a public law duty
aimed at the public good does not generally provide a sufficient basis to
create proximity with individuals affected by the scheme. This is so, even if a
potential claimant is a person who benefits from the proper implementation of
the scheme. This proposition is illustrated by numerous cases including
Cooper,
Gill v. Canada (Minister of Transport),
2015 BCCA 344,
Imperial Tobacco,
and
Elder Advocates,
to name just a few.

[57]

Fourth, where a conflict arises between a potential private law duty
and the public authoritys duty to the public, the private law duty would unlikely
be recognized. This is so whether the issue is viewed as one of proximity or as
a policy reason to negate a duty. This principle has been engaged in a number
of cases, see for example,
Imperial Tobacco, Cooper, Gill, Los Angeles Salad
.

[58]

What I take from
these broad principles is that, as a general proposition subject only to
arguably rare exceptions, statutory duties owed by public authorities are
insufficient to ground private law duties arising out of interactions that are
inherent in the exercise of the public law duty. Indeed, it is difficult to
convert public law duties into private law duties where those public law duties
exist to promote a public good. Generally, discharging public law duties does
not give rise to a private law duty of care to particular individuals.

[59]

Typically, if a
private law duty of care is recognized, it will arise from specific
interactions either between the public authority and the claimant sufficient to
create the necessary proximity or in the context of a statutory scheme:
Imperial
Tobacco
at paras. 45‑46. An example of such an approach is found
in
Fullowka v. Pinkertons of Canada Ltd.
, 2010 SCC 5, where the Court
emphasized the specific features of the relationship between the plaintiffs and
the regulator in the circumstances of the case. There, a combination of
factors, including the regulatory regime and the interactions and knowledge of
regulators, were necessary to ground a finding of proximity.
Vlanich v.
Typhair
, 2016 ONCA 517, para. 31, helpfully explains how proximity may
arise between a public authority and a member of the public where a public
authority assumes responsibility for ensuring compliance with standards.

[60]

I agree with the
comments of Mr. Justice Bryson of the Nova Scotia Court of Appeal in
Canada (Attorney General) v.
Walsh Estate
,
2016 NSCA 60:

[64]      Notwithstanding
judicial comment to the contrary, it is hard to see how a public statute,
empowering public actors to accomplish public goals, could alone give rise to a
private duty between those public actors and a particular member of the public.
Unless the statute conferred a right of action or limited such a right or any
remedy, one would expect the statute to be a neutral factor in the analysis. Statutes
generally do not create a private law duty of care:
Reference re Broome v.
Prince Edward Island
, 2010 SCC 11 at ¶ 13.

[65]      To
impose a private duty of care on public actors, one needs to overcome the
generic relationship and establish a private one, although it need not be
personal. There may be interaction between public defendants and plaintiffs,
such as to give rise to a relationship between them, (Hill, ¶ 29).

[61]

It is necessary,
therefore, to begin by characterizing the purpose of the regulatory scheme at issue
in this case. The scheme is intended to protect the heritage character of First
Shaughnessy. It does so by seeking to preserve properties possessing heritage
value and the overall historic character and ambience of the neighbourhood. To
achieve that aim, it regulates proposed developments by property owners. The
scheme imposes statutory duties on the regulators and provides statutory rights
to property owners in making a development permit application. I see nothing in
the scheme to suggest the legislative intent is to create a private law duty of
care owed to property owners.

[62]

In this respect, the
bylaws at issue are a specific type of bylaws aimed at regulating development.
Development permits often authorize the demolition and replacement of certain
buildings. Generally speaking, bylaws regulating development do so to control
permissible development in accordance with a variety of criteria. Those
criteria may encompass a wide range of matters, such as density, use, or
compliance with design guidelines, just to name a few.

[63]

In this case, the
bylaws in issue were concerned with protecting the heritage character of a
certain part of Vancouver. The regulatory framework exists to promote a
conception of the public interest or public good by regulating the type and
character of new construction in FSD. The primary objective of the scheme is to
promote the public good. In the circumstances, I do not think it can be said
that the regulatory framework, standing alone, either explicitly or by
implication, creates a relationship of proximity capable of giving rise to a
prima
facie
duty of care.

[64]

I am reinforced in
this view, by examining those factors the judge relied on at paras. 159‑73,
in concluding that such a relationship of proximity existed. In my respectful
opinion, most of the factors were generic and inherent in the regulatory
framework and, accordingly, are not indicative of a relationship of proximity.

[65]

While the
relationship between the parties can be described as direct and
transactional, this does not materially advance the proximity analysis because
such a relationship is both inherent in and an inevitable and necessary part of
the regulatory framework, in which individuals apply for permission to
undertake a certain activity. The same applies to virtually any licensing or
permitting process. I do not think that the inevitable reality of a specific
individual making an application to a regulator, and thereby entering into a
direct transactional relationship with the regulator, advances the argument
that proximity exists in the sense that the regulator has come under an
obligation to have particular regard for the interests of the applicant beyond
the regulators obligation to fulfil his or her statutory duties.

[66]

Moreover, as I see
the matter, the expectations and reliance on representations, referred to by
the judge at para. 44, is simply another way of describing an applicants
expectation that a public official will fulfil his or her statutory public law
obligations in the manner described in the Administrative Bulletin referred to
at para. 10 above. The representations are not an indication that the
public official is assuming a private law duty of care to have regard for the
applicants private interests, whatever they may be. Further, the expectation
that a public official will act as authorized by law does not, by itself,
ground any reasonable expectation that the applicant can rely on the official
to discharge his or her obligations with a particular regard for the
applicants private interests.

[67]

I agree that a failure
by a public official to process a development application according to the law could
in some circumstances cause reasonably foreseeable harm to the economic
interests of an applicant where there is a clear right to a permit. In this
case, it may have been reasonably foreseeable that a failure to process the
development permit application in accordance with the law might interfere with
private property rights of the applicant. Again, much the same could be said
about any scheme of regulation which involves granting or withholding
permission to engage in certain kinds of activity. But none of this takes the
relationship between the parties outside what is inherent in the scheme of
regulation. Moreover, reasonable foreseeability is now treated as a secondary
factor. Primary emphasis is given to proximity. Reasonable foreseeability does
not create proximity:
Deloitte
paras. 32-6
.

[68]

While property
owners are entitled to use their property as they wish, they may do so only
within a regulatory framework. Property development is highly regulated in the
public interest. The manner in which economic interests or property rights may
be affected by a failure to administer the law is variable and unpredictable. Given
that property owners are not entitled to do what they like with their property
outside of the regulatory scheme, it can be conceptually difficult to draw the
link between the denial of a permit and causation of damages. The fact that
property rights are involved in this regulatory framework does not elevate the
nature of interest engaged to such a level that a relationship of proximity is
created.

[69]

In summary, I do not
think that the factors inherent in administering a regulatory scheme of this
nature are sufficient to create a relationship of proximity.

[70]

Importantly, this
does not foreclose the possibility that a relationship of proximity could be
created in the context of a scheme, including this one, and specific facts and
circumstances arising from interactions between the parties. There could be a
case in which a public official negligently misrepresented certain facts that were
relied on by an applicant. This is not such a case. Alternatively, a public
official could act in such a way so as to assume a responsibility to have
regard for the private interests of an applicant who in turn relies upon that
assumption of responsibility. Again, this is not such a case. The representations
the judge referred to were, at best, general statements about process. I see
nothing in the evidence that would warrant treating them as actionable
misrepresentations, and the judge did not do so.

[71]

In the result, I do
not think the scheme of regulation, in and of itself, gives rise to private law
duties of care that exist alongside public law duties. I see no basis to
convert statutory duties into private law duties. The inevitable interactions
involved in development permit applications are not sufficient to create a
relationship of proximity. There is nothing in the individual and specific
interactions in this case capable of creating a relationship of proximity
between these respondents and the City.

[72]

If I am wrong in my
analysis of proximity, policy reasons exist to negative a
prima facie
duty of care. Here, the Supreme Court of Canada reasons in
Holland
apply.

[73]

I observe in the
first place that the duty recognized is open-ended and of broad application.
The duty is described as a duty to decide within a reasonable time according to
the law. Such a duty would apply indiscriminately to virtually any public
authority granting or withholding permission through permits or licenses to
individuals wishing to make use of private property or engage in certain economic
activity. The potential burden imposed on governments to discharge its responsibilities
is extraordinary: see e.g.,
Elder Advocates
where at para. 74 the
Court identifies the fear of virtually unlimited exposure of government to
private claims, taxing public resources, and chilling government intervention
as policy reasons to negative a private duty. While one must be careful not to
treat the chilling effect on government as a blanket means of avoiding
recognizing private law duties of care imposed on public authorities, the danger
in this case stems from the breadth of the duty the judge recognized.

[74]

The most recent
articulation of the principle of indeterminate liability is found in
Deloitte
.
The Court pointed out that a concern for indeterminate liability should rarely
persist after applying a proper proximity and foreseeability analysis:
Deloitte
at para. 42. It may be, therefore, that the issue I address here has
been canvassed in my proximity analysis offered above: in particular, the
concern that the judges analysis captured relationships generic to and
inherent in virtually any permit granting authority.

[75]

Having said that,
the concern arising out of indeterminate liability remains a live issue. It was
one of the factors the Supreme Court of Canada relied on in both
Holland
(at para. 10) and
Elder Advocates
(at para. 74) referred to
above. This is not a question of the magnitude of potential liability. Rather,
it is a question of potential liability in indeterminate amounts owed to an
indeterminate class: see
Deloitte
at para. 43.

[76]

With respect, I do
not share the opinion of the judge that the issue of indeterminate liability is
resolved by acknowledging that regulators know who they are dealing with and
the nature of the permit applied for. To the contrary, given the breadth of the
duty and the extraordinary range of circumstances to which it would apply,
knowing who had applied for particular permits provides little information
about the potential impact of delay on their interests. In my respectful
opinion, it is impossible to ascertain the scope of liability the duty contemplates.

[77]

Moreover, the
standard of care to be applied is indeterminate: see e.g.,
Ari
at para. 51,
and incapable of having any predictable or objective content. It is not
apparent what concrete meaning can be given to a reasonable time given the
scarcity of resources public authorities can deploy in processing applications
and given the competing and shifting priorities public authorities face while discharging
their responsibilities. What is reasonable will vary contextually depending on
the policy choices a public authority makes.

[78]

In my opinion, the risk of indeterminate liability is a sufficient
public policy reason not to recognize the duty.

[79]

Finally, the law
already provides for alternative remedies. As I have said, the proposed private
law duty replicates the existing public law duty. A failure to make a decision
within a reasonable time is capable of being remedied by
mandamus
. This
remedy was appropriate in this case. The respondents were not entitled to a
particular decision, for example, the grant of a development permit, but they
were entitled to a decision. In addition to
mandamus
, under the bylaws,
a failure to make a decision on a development permit is a deemed refusal of the
permit. In those circumstances, the respondents again had a remedy. They had a
right to appeal to the board of variance, which was empowered to address their
complaint. The availability of these alternative remedies provides another policy
reason not to recognize the duty.

[80]

One last
issue must be addressed briefly. The judge approached the issue as one of
recognizing a novel duty of care. She was right to do so. The respondents
argued before us that the duty recognized by the judge was analogous to
previously recognized duties, but I see no merit in that argument. We have been
reminded recently by the Supreme Court of Canada to pay attention to the
particular circumstances and relationships involved in previous cases and not
to apply an overly general approach: see
Deloitte
; see also
Rankin
(Rankins Garage & Sales) v. J.J
., 2018 SCC 19. As the Court stated in
Deloitte
:

[28]      It follows that, where a party seeks to base a
finding of proximity upon a previously established or analogous category, a
court should be attentive to the particular factors which justified recognizing
that prior category in order to determine whether the relationship at issue is,
in fact, truly the same as or analogous to that which was previously
recognized. And, by corollary, courts should avoid identifying established
categories in an overly broad manner because, again, residual policy
considerations are not considered where proximity is found on the basis of an
established category (
Cooper
, at para. 39). Analytically, this
makes sense. For a court to have previously recognized a proximate
relationship, second-stage residual policy considerations must already have
been taken into account. When, therefore, a court relies on an established
category of proximity, it follows that there are no overriding policy
considerations that would [negate] the duty of care (
ibid
.). A
consequence of this approach, however, is that a finding of proximity based
upon a previously established or analogous category must be grounded not merely
upon the identity of the parties, but upon examination of the particular
relationship at issue in each case. Otherwise, courts risk recognizing
prima
facie
duties of care without any examination of pertinent second-stage
residual policy considerations.

[81]

Previous
cases recognizing a private law duty of care have tended to be rooted in the
assumption of responsibility to take care to protect certain interests, whether
against personal injury (see e.g.,
Just

v. British Columbia
,
[1989] 2 S.C.R. 1228) or safety (see e.g.,
Kamloops

(City) v. Nielsen
,
[1984] 2 S.C.R. 2) or have been derived from undertakings or
representations reasonably relied on by an individual: as explained in
Vlanich
.
Alternatively, they have involved direct and specific interactions going beyond
those inherent in the application of the regulatory scheme. They have not
sprung simply from a failure to make a decision in a reasonable time under the
governing law.

[82]

In the
result, I conclude that the City did not owe the respondents a private law duty
of care as the judge recognized.

Is the Order Capable
of Being Upheld for Other Reasons
?

[83]

The
respondents contend that even if the judge erred in recognizing a private law
duty of care, the order can be supported on alternative grounds. They contend
that they were entitled to an order of
mandamus
or that they made out
the tort of abuse of public office.

[84]

The judge found
the development permit was complete. Nevertheless, she declined to make an
order in the nature of
mandamus
because the City had a discretion
whether or not to issue a development permit.

[85]

I agree with
the judge that
mandamus
could not be ordered. The respondents applied
for an order directing the City to issue the development permit. Given the
discretion that was available to the City, no such order could be made. The
order that was available, at least in principle, was an order directing the
City to make a decision. The respondents did not make that application. They
could have done so, especially given the public knowledge during much of the
material period that the City was actively contemplating changing its approach
to heritage protection.

[86]

Accordingly,
quite apart from the fact that the order under appeal deals with issues of
compensation, it cannot be supported by way of
mandamus
.

[87]

The City
raised another ground in support of the argument that the Court could not order
mandamus
. It contends that the judge made a reversible error in finding
that the development permit application was complete and was capable of being
issued, subject to the respondents satisfying certain conditions.

[88]

It is not
necessary to address this issue definitively. If it were so, I would be
inclined to agree with the City that there were material deficiencies in the
development permit application. The judge dismissed the Citys argument out of
hand. Respectfully, I think she was too quick to do so. Critically, the
development permit application did not, among other deficiencies, comply with
the design guidelines forming part of the official community plan. Those
deficiencies related, amongst other matters, to the roofline, as well as the
bulk, size and scale of the proposed house. The development permit application
could not be approved if it were inconsistent with the design guidelines. This
was not a minor or trivial deficiency; it would have to be rectified before the
City could issue a permit. Similarly, the respondents failure to provide an
arborists report is not a minor deficiency, since landscaping of any proposed
development is integral to preserving the heritage character of First
Shaughnessy.

[89]

Finally, I
turn to the issue of abuse of or misfeasance in public office. The judge found
that the City acted in bad faith in delaying the processing of the respondents
development permit application. After describing the elements of the tort, she
gave the following reason for denying a remedy:

[114]    I
find that this tort is not made out. The plaintiffs claim is that several
members of the planning department acted improperly, not one in particular. In
fact the claim is advanced against the City of Vancouver.

[115]    The court in
J.P.
held that the individual
in question must be personally named as a defendant, making it clear that the
claim of misfeasance in public office is a claim against one public official:
J.P.
at para. 350.

[90]

With
respect, I think the judge fell into error in concluding that a claim of
misfeasance in public office can only be made out against one public official. Certainly,
it is intrinsic to the tort that it be committed by a person exercising public
functions or offices and the City is not an office holder: see
Moses v.
Lower

Nicola Indian Band
, 2015 BCCA 61 at para. 44. To conclude
the claim failed because it was premised on several members of the planning
department acting improperly, rather than one in particular, is an error. I am
aware of no principle in law that would prevent two or more individuals acting
in concert from committing the tort. Indeed, embedded in the judges findings
of fact must be a finding that several members of the planning department were
acting in concert.

[91]

This,
however, is not the end of the matter. As this Court held in
J.P. v. British Columbia (Children and
Family Development),
2017 BCCA 308
:

[319]    The
mother advanced her claim of misfeasance in public office against the Director
and her delegates generally. This is an intentional tort and, therefore, the
claim must be pleaded against the individual holder of the public office:
Moses
v. Lower Nicola Indian Band
, 2015 BCCA 61 at para. 44.

[350]    The tort of misfeasance in public office is an
extremely serious claim. Finding someone liable for such egregious conduct
requires, at the very least, that the individual be a named party in the Notice
of Civil Claim so that they may defend the claim against them. Procedural
fairness in our justice system mandates that an alleged tortfeasor have notice
of, and the opportunity to defend, such a claim, with all of the attendant
procedural safeguards to which a party to a proceeding is entitled.

[92]

The point in
Moses
was expressed in this way:

[44]      The even greater difficulty
that I see in Mr. Moses pleading is that it seems to equate the five
councillors who purported to pass the invalid resolutions, with
the Band
itself. Only the Band is named as a defendant in this proceeding. It is
difficult to conceive how
it
could be said to have committed the tort of
misfeasance in public office: the only public offices or functions in this
case are those of councillors and chief, which are obviously held by
individuals
.
The five councillors opposed to the plaintiffs holding office were defendants
in the Federal Court action, but are not named in this proceeding.

[Emphasis in original.]

[93]

The effect
of these cases is that in an action alleging misfeasance of public office or
abuse of office the plaintiff(s) must name as defendant(s) the public
official(s) who are alleged to have abused their office. This was not done
here. The finding that the City acted in bad faith is a finding that those
officials who handled the development permit application together with the
Council engaged in egregious conduct. If such a claim were to be advanced,
those officials (and councillors) should have been named. Findings of fact
against those individuals ought not to have been made, as they implicitly were,
because they were not parties. The failure to name them is fatal to the claim.

[94]

In the
result, I do not think any alternative grounds exist to uphold the order. Accordingly,
it is unnecessary to consider the effect of an immunity clause under s. 569
of the
Vancouver Charter
, which may have at least limited the scope of
recoverable damages arising from the bylaw change, as well as the potential
continuing relevance of
Monarch Holdings Ltd v. Oak Bay (District)
(1977), 4 B.C.L.R. 67 (C.A.).

Disposition

[95]

I would
allow the appeal, set aside the order below, and dismiss the action.

The Honourable Mr. Justice Harris

I agree:

The Honourable Madam Justice
Dickson

I agree:

The Honourable Madam Justice
Griffin

APPENDIX

Vancouver Charter,
S.B.C. 1953, c. 55

Good rule and government

189.
The Council
may provide for the good rule and government of the city.

Council powers respecting official development plan

562
.    (1)
The Council may, by by-law,

(a)      adopt
as the official development plan, or as a part of the official development
plan, any development plan prepared under section 561, or

(b)      revise
or amend the official development plan or any part of the official development
plan.

(2) If
a by-law under subsection (1) adopts or amends a regional context statement
under section 561 (4) (b), before adoption of the by-law the Council must refer
the by-law for comment to the board of the Greater Vancouver Regional District.

(3)
Before adopting a by-law under subsection (1), if the official development plan
designates a heritage conservation area and includes a schedule referred to in section
596A (3) (b), the Council must hold a public hearing.

(4)
Section 566 (3) to (5.1) [amendment or repeal of zoning by-law] applies in respect
of the adoption of a by-law under subsection (1) and a public hearing referred
to in subsection (3).

Undertakings, official development plan

563.
(1) The adoption by Council of a development plan shall not commit the
Council to undertake any of the developments shown on the plan.

(2) The
Council shall not authorize, permit, or undertake any development contrary to
or at variance with the official development plan.

(3) It
shall be unlawful for any person to commence or undertake any development
contrary to or at variance with the official development plan.

Zoning by-law

565.
(1) The Council may make by-laws

(a)      dividing
the city or any portion thereof into districts or zones of such
number, shape, or size as Council
may deem fit;

(b)      regulating, within any designated district or
zone, the use or occupancy of land and land covered by water for or except for
such purposes as may be set out in the by-law;

(c)      regulating, within any designated district
or zone, the construction, use, or occupancy of buildings for or except for
such purposes as may be set out in the by-law;

(d)      regulating the height, bulk, location,
size, floor area, spacing, and external design of buildings to be erected within
the city or within designated districts or zones;

(e)      establishing, in any district or zone,
building lines and the area of yards, courts and open spaces to be maintained
and the maximum percentage of the area of land that can be covered by impermeable
material;

(e.1)   regulating, in any district or zone, the
maximum density of population or the maximum floor-space ratio permissible;

(f)       designating districts or zones in which
there shall be no uniform regulations and in which any person wishing to carry
out development must submit such plans and specifications as may be required by
the Director of Planning and obtain the approval of Council to the form of
development, or in which any person wishing to carry out development must
comply with regulations and guidelines set out in a development plan or
official development plan;

(f.1)    requiring, where it creates a zone
pursuant to this section, that as a condition of approving a form of
development a person provide public amenities, facilities or utilities or
provide land for such purposes or require that the person retain and enhance
natural physical features of a parcel being developed;

(g)      delegating to the Director of Planning or
such other persons as are authorized by Council the authority to certify the
authorized use or occupancy of any land or building;

(h)      providing for certificates of use or
occupancy and providing that the use or occupancy of any land or building other
than in accordance with the certificate of use or occupancy applicable to such land
or building shall constitute a violation of the by-law and shall render the
owner of the land or building liable to the penalties provided in the by-law;

(i)       authorizing the collection of a fee for a
certificate of use or occupancy, which fee may vary according to the type of
use or occupancy or the value of the land or building used or occupied;

(j)       describing the zones or districts by the
use of maps or plans, and the information shown on such maps or plans shall
form part of the by-law to the same extent as if included therein.

(2)      A by-law regulating the use or occupancy of land, land
covered by water or buildings may

(a)      permit uses or occupancies existing at a
date specified in the bylaw as outright uses, and

(b)      make uses or occupancies existing at a
date specified in the by-law conditional approval uses as of that date.

(3)      The regulations under subsection (1) may be different for
different protected heritage property, as specified in the by-law.

Withholding of permit pending adoption of zoning by-law

570.
(1) Before the adoption of a zoning by-law, an official development
plan or a bylaw under section 593 designating a heritage property, or of an
amendment to a zoning by-law or an alteration, addition or extension to an
official development plan, the Council may cause to be withheld the issuance of
any development or building permit for a period of 30 days from the date of
application for such permit.

(2)
Where any permit is so withheld, the application therefor shall be considered by
the Council within the said period of thirty days, and, if in the opinion of
the Council, the development proposed in the application would be at variance
or in conflict with a development plan in the course of preparation, or with an
alteration, addition, or extension to an official development plan in course of
preparation, or with a zoning by-law in course of preparation, or with an amendment
to a zoning by-law in course of preparation, the Council may withhold the
permit for a further sixty days from the expiration of the thirty-day period
hereinbefore referred to, or the Council may impose such conditions on the
granting of the development permit as may appear to the Council to be in the public
interest.

(3) In
the event that the Council does not within the said period of sixty days adopt
any such plan, alteration, addition, extension, or by-law, the owners of the land
in respect of which a development permit was withheld or conditions were imposed
pursuant to this section shall be entitled to compensation for damages arising
from the withholding of such development permit, or the imposition of such
conditions. Such compensation shall be determined by arbitration pursuant to
the Arbitration Act.

(4)
Despite subsection (1), an owner of property for which a permit has been withheld
before the adoption of a by-law designating a heritage property may agree that
a permit may be withheld for a period longer than the 30 days referred to in
subsection (1) and, in that case, subsection (1) continues to apply during that
longer period and subsection (2) is deemed to read as if the longer period applies.

Heritage register

582.
(1) The Council may, by resolution, establish a heritage register that
identifies real property that is considered by the Council to be heritage property.

(2) The
heritage register

(a)      must indicate the reasons why property
included in a heritage register is considered to have heritage value or
heritage character, and

(b)      may distinguish between heritage
properties of differing degrees and kinds of heritage value or heritage
character.

(3)
Within 30 days after including a property in a heritage register or deleting property
from a heritage register, the Council must give notice of this

(a)      to the owner of the heritage property in
accordance with section 599, and

(b)      to the minister responsible for the
Heritage Conservation Act in accordance with section 602.

(4) The
protection of heritage property is not affected by an error or omission in a heritage
register.

Orders for temporary protection

589.
(1) The Council may order that real property is subject to temporary
protection in accordance with section 591 if the Council considers that

(a)      the property is or may be heritage
property, or

(b)      protection of the property may be
necessary or desirable for the conservation of other property that is heritage
property.

(2) An
order under subsection (1)

(a)      must specify the time period during which
the temporary protection applies, which may not be longer than 120 days unless
the owner of the property agrees to a longer time period, and

(b)      must not be made more than once within a 2
year period.

(3) An
order under subsection (1) may do one or more of the following:

(a)      identify landscape features that are
subject to the order;

(b)      specify types of alterations to property
that are allowed without obtaining a heritage alteration permit;

(c)      establish policies regarding the issuance
of a heritage alteration permit in relation to the property.

Heritage control periods for temporary protection

590.
(1)      For the purposes of heritage conservation planning for an
area identified in the by-law, the Council may, by by-law, declare a heritage
control period with respect to the area.

(2)      A
by-law under subsection (1) must specify the length of the heritage control period,
which may not be longer than one year from the date of adoption of the by-law.

(3)      A
by-law under subsection (1) may do one or more of the following:

(a)      identify types of landscape features that
are included in the protection under this section;

(b)      specify types of alterations to property
that are allowed without obtaining a heritage alteration permit;

(c)      establish policies regarding the issuance
of a heritage alteration permit in relation to property within the area covered
by the by-law.

(4)      During
a heritage control period under subsection (1), property within the area covered
by the by-law is subject to temporary protection in accordance with section
591.

(5)      A
heritage control period under this section may be declared once only during any
10 year period for an area or portion of an area.

Temporary protection

591.
(1) While property is subject to temporary protection in accordance
with this Division, except as authorized by a heritage alteration permit or as
referred to in subsection (2), a person must not do any of the following to the
property:

(a)      alter the exterior of a building;

(b)      make a structural change to a building;

(c)      move a building;

(d)      alter, move or take an action that would
damage a fixture or feature identified in the authorizing resolution, order or
by-law for the temporary protection;

(e)      alter, excavate or build on the property.

(2) The
prohibition under subsection (1) does not apply to alterations that are allowed
by the authorizing resolution, by-law or order for the temporary protection to
be made without a heritage alteration permit.

Heritage designation protection

593.
(1) Except as authorized by a heritage alteration permit or allowed
under subsection (3) (f), a person must not do any of the following:

(a)      alter the exterior of a building protected
under this section;

(b)      make a structural change to a building
protected under this section;

(c)      move a building protected under this
section;

(d)      alter, remove or take an action that would
damage an interior feature or fixture that is identified under subsection (3)
(c);

(e)      alter, remove or take an action that would
damage a landscape feature that is identified under subsection (3) (d);

(f)       alter, excavate or build on land
protected under this section.

(2) The
Council may, by by-law, on terms and conditions as it considers appropriate,
designate real property in whole or in part as protected under this section if
the Council considers that

(a)      the property has heritage value or
heritage character, or

(b)      designation of the property is necessary
or desirable for the conservation of a protected heritage property.

(3) A
heritage designation by-law may do one or more of the following:

(a)      apply to a single property or to part of a
property;

(b)      apply to more than one property, including
properties owned by different persons;

(c)      apply to affixed interior building
features or fixtures identified in the by-law;

(d)      apply to landscape features identified in
the by-law;

(e)      establish policies or procedures regarding
the provision of financial or other support for the conservation of the
heritage property;

(f)       specify types of alterations to the
property that are allowed without a heritage alteration permit;

(g)      establish policies regarding the issuance
of heritage alteration permits in relation to property covered by the by-law.

Heritage designation procedure

594.
(1) Before a heritage designation by-law is adopted, the Council must
hold a public hearing on the proposed by-law for the purpose of allowing
affected parties and the general public to make representations respecting
matters contained in the proposed by-law.

(2)
Section 566 (3), (5) and (5.1) applies with respect to the public hearing and enactment
of the heritage designation by-law.

(3) At
least 10 days before the public hearing, a notice in the prescribed form must
be given in accordance with section 599 to

(a)      all persons who, according to the records
of the land title office, have a registered interest in real property that
would be designated, and

(b)      all occupiers of real property that would
be designated.

(4)
[Repealed 1999-38-67.]

(5) The
Council must have prepared a report regarding the property to be designated
that includes information respecting the following matters:

(a)      the heritage value or heritage character
of the property;

(b)      the compatibility of conservation with the
community planning objectives in the area in which the property is located;

(c)      the compatibility of conservation with
lawful uses of the property and adjoining lands;

(d)      the condition and economic viability of
the property;

(e)      the possible need for financial or other
support to enable appropriate conservation.

(6) At
least 10 days before the public hearing, the report under subsection (5) must
be available for public inspection at the City Hall during its regular office
hours.

(7) No
heritage designation by-law is invalid for inadvertent and minor noncompliance with
this section or Division (6), or for an error or omission in the report under
subsection (5).

(8)
Within 30 days after the Council adopts or defeats a heritage designation bylaw
or determines not to proceed with the by-law, the Council must give notice of this
in the prescribed form to the owners entitled to notice under subsection
(3)(a).

(9)
Within 30 days after adopting a heritage designation by-law, the Council must give
notice of this

(a)      to the land title office in accordance
with section 601, and

(b)      to the minister responsible for the
Heritage Conservation Act in accordance with section 602.

Compensation for heritage designation

595.
(1) If a designation by a heritage designation by-law causes, or will
cause at the time of designation, a reduction in the market value of the
designated property, the Council must compensate an owner of the designated property
who makes an application under subsection (2), in an amount or in a form the
Council and the owner agree on or, failing an agreement, in an amount or in a
form determined by binding arbitration under subsection (4).

(2) The
owner of a designated property may apply to the Council for compensation for
the reduction in the market value of the designated property.

(3) An
application under subsection (2)

(a)      must be made, in order for the owner to be
entitled to compensation under this section, no later than one year after the heritage
designation by-law is adopted, and

(b)      may be made before the heritage
designation by-law is adopted.

(4) If
the Council and an owner are unable to agree

(a)      that the owner is entitled to
compensation, or

(b)      on the amount or form of compensation,

then
either the Council or the owner may require the matter to be determined by binding
arbitration under the Arbitration Act.

(5) An
arbitration under this section must be by a single arbitrator unless the Council
and the owner agree to the appointment of an arbitration panel.

(6) The
arbitrator or arbitration panel, in determining whether the owner is entitled to
compensation and the amount or form of compensation, must consider

(a)      financial and other support available for
conservation of the designated property, and

(b)      any other benefits that are available
because of the designation of the property.

(7)
Compensation must not be paid, and an arbitration must not continue, if the Council
defeats, or determines not to proceed with, the designation by-law.

(8)
Nothing in this section authorizes the Council to give any financial or other benefit
to an owner except that which is commensurate with reduction in the market
value of the designated property as caused by that designation.

(9)
This section does not apply with respect to property that, immediately before the
adoption of the heritage designation by-law, is already designated under a
heritage designation by-law or under section 9 of
the
Heritage
Conservation Act.


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

D.L.T. v. K.K.M.
,

2019 BCCA 13

Date: 20190122

Docket: CA45441

Between:

D.L.T.

Appellant

(Claimant)

And

K.K.M.

Respondent

(Respondent)

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Harris

On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 29, 2018 (
D.L.T. v. K.K.M.
, 2018 BCSC 1133, Vancouver Docket
E131162).

Oral Reasons for Judgment

The Appellant, appearing in person:

D.L.T.

The Respondent, appearing in person:

K.K.M.

Place and Date of Hearing:

Vancouver, British
  Columbia

January 22, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 22, 2019

Summary:

The appellant appeals three
aspects of an order made by a chambers judge in high-conflict family
litigation.  Held:  Appeal dismissed.  In dismissing the appellants
application for the respondent to be restricted to supervised parenting time
with their daughter for at least three months, the judge did not err in any of the
respects asserted by the appellant.  The appellant did not demonstrate a basis
upon which this Court can interfere with the judges exercise of discretion in
allocating the costs of the expert who prepared a report under s. 211 of the
Family Law Act.  The judge did not err in refusing the appellants application
that he be provided with written progress reports from the person who would be
providing therapy to the respondent.

[1]

TYSOE J.A.
:  The appellant appeals three aspects of a 28-paragraph
order made by a chambers judge on June 29, 2018 in high-conflict family
litigation.  Much of the litigation has centred around the parties seven-year-old
daughter and, in particular, the respondents belief that the appellant
presented a risk to their daughter and the appellants concern about parental
alienation.

[2]

The matter went to trial in 2015 with Justice Gray presiding.  She
issued reasons for judgment indexed as 2015 BCSC 1771, but the conflict continued.
Justice Gray continued to hear applications, and she made several
post-trial orders.

[3]

In late 2016, the respondent expressed concern, on the basis of what she
was told by the parties daughter, that the appellant was sexually abusing the
daughter.  The respondent did not allow the appellant the parenting time to
which he was entitled, and the appellant applied in early December 2016 for his
parenting time to be reinstated.  Justice Gray reinstated the appellants
parenting time but directed that there be a further hearing to consider an
investigation into what was troubling the daughter.

[4]

On January 24, 2017, Gray J. heard submissions with respect to who
should be appointed to conduct an assessment under s. 211 of the
Family
Law Act
, S.B.C. 2011, c. 25.  The appellant wanted the assessment
to be conducted by Dr. Krywaniuk who had prepared a report that was
introduced as evidence in the 2015 trial and who estimated that his additional
fees would be up to $5,000.  The respondent wanted a psychologist or one of
three psychiatrists to conduct the assessment.  The psychologist, Mr. Colby,
was in a position to begin work shortly and the respondent said she was
prepared to pay all of his costs, which were estimated to be $15,000.  Justice Gray
appointed Mr. Colby to conduct the assessment and ordered that the
respondent was to pay his fees and was not to have liberty to apply for
contribution by the appellant.  At the time of Gray J.s order, neither
party was employed.

[5]

The order made by Gray J. on January 24, 2017 was incorporated into
an omnibus order made by her on March 1, 2017 in which all continuing orders
were consolidated into one order for convenience.

[6]

The respondent paid a retainer of $7,500 to Mr. Colby.  On the
basis that she had no further available funds to pay Mr. Colby, the
respondent applied to suspend the assessment.  The appellant responded to the
application by requesting that he be permitted to pay the remaining portion of
the $15,000 fee then estimated by Mr. Colby.  On June 6, 2017, Justice
Saunders dismissed the respondents application but varied Gray J.s order
with respect to the payment of the costs of Mr. Colbys report.  Justice
Saunders order was settled by Registrar Nielsen but an appeal from the
settlement of the order was allowed in part by Justice Skolrood.

[7]

The end result of the settled order was that Gray J.s order was
varied to the extent that the respondent was relieved of the obligation to pay
for the entirety of the costs of Mr. Colbys report and that the first
$15,000 of the costs were to be divided on a 50/50 basis.  Justice Saunders
order also stated that the respondent was at liberty to have the issue of
liability for the entirety of the cost of [M]r. Colbys report re-visited
by the Court upon determination of the consequences respecting parenting that
arise from [M]r. Colbys report based on the Respondent showing evidence
of a material change in her circumstances since the said Order of Madam Justice
Gray.  In addition to allowing the appeal from the settlement of Saunders J.s
order, Skolrood J.s order also provided that the appellant was to pay an
additional $4,500 towards the costs to bring the total retainer to $20,000
and that [t]his does not vary Madam Justice Grays order concerning
payment for the s. 211 report and the parties are at liberty to apply at a
later date for a reallocation of the costs.

[8]

The s. 211 assessment report was issued on March 21, 2018.  Mr. Colby
found that the appellant did not present a risk to the parties daughter.  He
also found that there appeared to be a close bond between the appellant and his
daughter, and that there did not appear to be any negation of the appellant by
his daughter.  Mr. Colby warned, however, that there was risk of a
negative effect on the relationship between the appellant and the parties
daughter if she becomes aware as she matures of her mothers extreme wariness
of the appellants engagement with the daughter.

[9]

Mr. Colby made a number of recommendations, including a shared
parenting arrangement, shared guardianship and therapy for the respondent.  He
made the recommendations on the basis that the respondent accepted the finding
the appellant did not present a risk to their daughter and that she does not
engage further in making allegations without concrete support.  He cautioned
that, if the respondent continued in a manner that undermined the relationship
between the appellant and their daughter, consideration should be made for
supervised parenting time being the sole basis of [the respondents]
interactions with her daughter.

[10]

Following receipt of Mr. Colbys report, the appellant made an
application for an order varying the omnibus order dated March 1, 2017 in
numerous respects and for several additional orders.  The chambers judge who
heard the application made a comprehensive order, the relevant aspects of which
are as follows:

(a) he
dismissed the appellants application that the respondents parenting time with
their daughter be restricted to fully supervised access for a period of at
least three months, and he ordered an equal parenting arrangement;

(b) he
declined to accede to the appellants application for reimbursement by the
respondent of the $12,500 the appellant paid to Mr. Colby, and he ordered
that the costs of the report be divided equally, so that the respondent was to
pay $2,000 to the appellant (it appears that the respondent may have paid an
additional $1,000 of the costs in addition to the initial $7,500 retainer); and

(c) he
directed that the respondent have an appointment with a registered psychologist
or psychiatrist at least once a month but he declined to make the direction
requested by the appellant that the therapist provide the appellant with
written progress reports every 30 days (although he did direct the respondent to
advise the appellant of the date of commencement of her therapy appointments
and if she stopped her therapy).

[11]

At the time of the hearing of the application, both parties had become
employed.  The appellant was earning approximately $85,000 and the respondent
was receiving a salary and benefits of approximately $43,000.

[12]

The appellant put into evidence a surreptitious recording he made of a
telephone conversation between the respondent and their daughter on April 28,
2018.  In the recording, the daughter said she told the appellant she did not
want him to change the parenting schedule, and the respondent told her that the
appellant was always going to try and control her but she was getting older and
could make decisions for herself.  The respondent also told her daughter to
keep telling the appellant that the respondent was not working because the guy
is crazy.  He is taking me to court again.

[13]

The appellant also put into evidence a recording of a voicemail message
the respondent left on the telephone of the paternal grandparents of the
respondents other daughter, who is approximately four years older than the
parties daughter.  In the message, the respondent said she was aware that her
older daughters grandparents were going to watch the parties daughter ride
horses and were going out to dinner with her.  The respondent made a comment
about going to court and asked the grandparents to leave the parties daughter
alone.

[14]

At the hearing of the application, counsel for the respondent informed
the chambers judge that the respondent accepted that the appellant is not a
threat to their daughter.

[15]

In his reasons for judgment (indexed as 2018 BCSC 1133), the chambers
judge discussed the recorded telephone conversation between the respondent and
her daughter.  He commented that it was inappropriate for the respondent to
have encouraged her daughter to make her own decisions.  He also commented that
the respondents persistent encouragement of her daughter to insist on the
current parenting schedule and to withhold information from the appellant
appeared to be manipulative and contrary to the best interests of the
daughter.  However, he concluded that the respondents behaviour did not
justify the rather Draconian order of supervised access and that it would not
be in the daughters best interests to make so startling a change in her
circumstances.  The judge proceeded to make the order for an equal parenting
schedule.

[16]

In dealing with the costs of Mr. Colbys report, the chambers judge
wondered about the basis upon which Saunders J. varied Gray J.s
order, but observed that it was settled by the registrar and entered in the
court records.  The judge made no mention of the appeal heard by Skolrood J.
or to the additional order made by him.  He stated that the current situation
was quite different from that contemplated by Gray J. because the
appellant had paid most of Mr. Colbys fees, and he noted that the
appellant was earning double what the respondent was earning.  In those
circumstances, the judge considered it appropriate for the fees to be shared
equally, and ordered the respondent to pay $2,000 to the appellant.

[17]

In ordering that the respondent undergo therapy, the chambers judge
stated that it would intrude too far into the respondents privacy rights if he
acceded to the appellants request for written progress reports to be sent to
him every 30 days.  After ordering that the appellant be advised of the
commencement of the therapy appointments and any cessation of the therapy, the
judge stated that, if the appellant felt the need for more information, he was
to pursue it through the respondents counsel or through the court.  The judge
did order that the respondent was to advise the appellant, through the
respondents lawyer, if she stops her therapy.

Discussion

[18]

The appellant challenges the judges orders respecting the supervised
parenting time, the costs of Mr. Colbys report and the provision of
progress reports by the respondents therapist.

[19]

The decisions of the chambers judge under appeal were discretionary in
nature.  An appellate court will interfere with a discretionary decision only
if the judge misdirected himself or herself or reached a decision that is so
clearly wrong that it amounts to an injustice or the judge gave no or
insufficient weight to relevant considerations: see
Penner v. Niagara
(Regional Police Services Board)
, 2013 SCC 19 at para. 27.

a)
Failure to Order Supervised Parenting Time

[20]

The appellant submits the chambers judge made five errors in dismissing
his application for the respondent to be restricted to supervised parenting
time for at least three months.  He says the judge failed to give paramountcy
to his daughters long-term interests, failed to adequately consider the risk
of family violence, failed to consider relevant cases dealing with parental
alienation, incorrectly interpreted Mr. Colbys report and erred by
failing to listen to the audio recording evidence.

[21]

In my opinion, the judge did not commit any of these alleged errors.  In
declining to make the order, the judge specifically considered the best
interests of the child, and I am not persuaded that he erred in failing to give
effect to her best interests.

[22]

The so-called risk of violence relied upon by the appellant was the
respondents attempt to alienate the parties daughter from the grandparents of
the respondents other daughter, incidents which he considers to be emotional
harassment of himself, and the respondents past denial of his parenting time.
None of these events relate to the interaction between the respondent and her
daughter, and I fail to see how these types of incidents would warrant
supervised parenting time.

[23]

I am not persuaded that the judge improperly overlooked the case
authorities dealing with parental alienation.  Mr. Colby found that there
appeared to be a close bond between the parties daughter and the appellant,
and simply cautioned that there could be a risk of alienation in the future.
The judge did not consider this potential future risk to warrant the
supervision sought by the appellant, and his decision is entitled to deference
in the absence of a demonstration that he gave insufficient weight to the risk.

[24]

The appellant has not established that the judge misinterpreted Mr. Colbys
report.  He says the judge placed too much weight on the issue of whether the
respondent continued to believe he presented a risk to their daughter and did
not understand that the recommendation for supervised parenting was based on
the totality of the respondents behaviour.  However, the appellant does not
point to anything stated by the judge to illustrate that he misinterpreted Mr. Colbys
report.  The judge did not dismiss the appellants application solely on the
basis that the respondent accepted that the appellant does not pose a risk to
their daughter.  He considered the respondents additional behaviour and
concluded that the order sought by the appellant was not justified.

[25]

Finally on this aspect of the appeal, the judge did not err in
exercising his discretion to rely on the transcripts of the audio recordings
without listening to the recordings.  There is no requirement in law that the
listening of audio recordings must always be preferred to the reading of the
transcripts of the recordings.  I have listened to the recordings and there is
nothing unusual about the vocal context or tone that made the transcripts
misleading or deficient.  There is no reason to believe that the judges
decision would have been different had he listened to the recordings.

b)
Costs of the Colby Report

[26]

The appellant submits the chambers judge erred in two respects when he
dismissed the appellants application for an order that the respondent
reimburse him for the portion of Mr. Colbys costs paid by him.  He says
the judge incorrectly applied the test of material change of circumstances and
failed to give sufficient weight to the consequences arising from Mr. Colbys
report.

[27]

As the appellant conceded in his factum, the order made by Saunders J.
(as ultimately settled by Skolrood J.) was not appealed.  This presents
two insurmountable obstacles for the appellant.  First, the order of Gray J.
was varied to change the requirement for the respondent to pay all of the costs
for Mr. Colbys assessment and to substitute a requirement that the parties
were to each pay half of the first $15,000 of the costs.  Second, Saunders J.
gave the respondent, not the appellant, liberty to have the issue of liability
for the costs of the assessment re-visited.  The effect of Saunders J.s
order is that the appellant is not entitled to apply for a reallocation of the
first $15,000 of the costs.

[28]

It is not surprising that the appellant did not appeal Saunders J.s
order.  In contrast to the situation before Gray J., when the respondent
wanted the assessment to be conducted by Mr. Colby, the respondent wanted
the assessment to be suspended.  On the other hand, although initially
resistant to the appointment of Mr. Colby to conduct the assessment, the
appellant did want him to complete the assessment and volunteered to pay the
second half of the $15,000 retainer.

[29]

In the result, the authority to reallocate any of the costs paid to Mr. Colby
on the appellants application was contained in the additional order made by
Skolrood J., not the order made by Saunders J.  The appellants
grounds of appeal on this issue are misconceived because they are based on the
wording of Saunders J.s order (i.e., material change in her
circumstances and determination of the consequences respecting parenting that
arise from [M]r. Colbys report), but the authority to reallocate any of
the costs upon application by the appellant is not contained in Saunders J.s
order.

[30]

In his factum, the appellant concedes that the sentence in Skolrood J.s
order giving the parties liberty to apply for a reallocation of the costs
refers only to the $4,500 cost overrun that he agreed to pay in order to have
the report completed. The effect of the chambers judges order was to
reallocate this cost in an approximately equal fashion.  That was not contrary
to Gray J.s order because her order was varied by Saunders J. to
relieve the respondent of the obligation to pay for the entirety of the cost of
the report.  In my view, the appellant has not demonstrated a basis upon which
this Court can interfere with the judges exercise of discretion in this
regard.

c)
Progress Reports of the Respondents Therapy

[31]

The appellant says that, although his notice of application sought an
order that the respondents therapist provide him with written progress reports
every 30 days, he indicated to the chambers judge during the hearing of
the application that attendance reports from the therapist would be, at a
minimum, necessary to ensure that the respondent was attending the monthly
appointments.  He submits the judge erred when he ruled, in effect, that the
best interests of his daughter did not outweigh this limited intrusion into the
respondents privacy.

[32]

In my opinion, the judge did not err in refusing to order the provision
of written progress reports.  In addition to intruding on the respondents
privacy rights, such an order would undermine the therapy because the
respondent could be reluctant to discuss her true feelings with the therapist
out of fear that it would be used against her by the appellant.  It is in the best
interests of the parties daughter that her mother receive the therapy
recommended by Mr. Colby, and the therapy should not be jeopardized
because of the appellants desire to receive progress reports.

[33]

Although the appellant may have explained to the judge that all he
wanted to know was whether the respondent was attending the therapy sessions,
it is apparent from the judges reasons that he did not understand the
appellant to have withdrawn his request for written progress reports.  The
appellants notice of application did not request attendance reports as an
alternate form of relief, and the judge was not required to consider lesser
remedies if he was not prepared to exercise his discretion to grant the relief
sought in the notice of application.  In addition, the judge left it open to
the appellant to seek further information through the respondents counsel or
through the court.

[34]

I would make one additional comment about the order made by the judge in
connection with the respondents therapy.  He ordered that the respondent was
to advise the appellant, through the respondents counsel, if she stops her
therapy.  At the time of the order, the respondent was represented by counsel,
but she is currently representing herself.  The respondent remains obliged
under the order to advise the appellant if she stops therapy and, in the
absence of counsel, she would have to advise him directly.

Conclusion

[35]

I would dismiss the appeal with costs on a party and party basis to the
respondent.  I would not make an order for special costs as the respondent has
requested because the appellants conduct in this appeal has not been
reprehensible and his bringing of the appeal was not an abuse of process.  Nor
would I make the order requested by the respondent that the appellant be
ordered to obtain leave before bringing another appeal in this Court because
there is no application before us for such an order under s. 29 of the
Court
of Appeal Act
, R.S.B.C. 1996, c. 77, and there is not a proper basis
for this Court to make such an order on its own initiative.

[36]

FRANKEL J.A.
:  I agree.

[37]

HARRIS J.A.
:  I agree.

[38]

FRANKEL J.A.
:  The appeal is dismissed.

The
Honourable Mr. Justice Tysoe