In an unprecedented challenge of municipal power, the B.C. Court of Appeal has backed Vancouver Mayor Sam Sullivan and council’s summary decision to fire the five volunteer members of the city’s board of variance.
Justice Risa Levine, supported by Justices Anne Rowles and David Frankel, said such quasi-judicial bodies are the spawn of government, exist to implement policy and have no judicial “independence.”
Sullivan’s enemies had hoped the appellate panel would provide ammunition for the coming election by overturning the decision to axe the board; those hopes were dashed.
For Sullivan it is a bogeyman slain.
The dismissal on June 29, 2006, of the five board members (all but one former mayor-now-Senator Larry Campbell appointees) was a big reason he was branded a “bully.”
The city won a judgment in B.C. Supreme Court that it was within its rights to dump the board. But that didn’t improve the optics.
Terry Martin, chairman of the board, appealed, saying again that council acted outside its authority, in bad faith and in contravention of the principles of procedural fairness in rescinding the three-year appointments without notice, a hearing or cause.
As Justice Levine noted last week, this was a novel case mixing political decision-making with principles of administrative law.
“To my knowledge, and that of counsel for both parties, this case is without precedent, and there has been no judicial consideration of the power of a municipal council to rescind the appointments of members of a board of variance ‘at any time,’ ” Justice Levine noted.
“In my opinion, [B.C. Supreme Court Justice Robert Bauman] was correct in [his initial judgment] concluding that, in the context of the statutory framework within which council functions and the nature of the decision in question, council breached no principles of procedural fairness and acted in good faith in rescinding the appointments of the members of the board.”
The justice said the City Charter clearly empowers council with such authority.
Boards of variance were created in the last century to provide a low-cost alternative to litigation. Or, as the city’s lawyer, George Macintosh, described it, they are a safety valve or adjustment mechanism to tweak what the bureaucrats are doing — and get you help for your backyard problems.
Which is why the back-story to this suit goes to the heart of what these boards do — at its core was a tug-of-war between city staff and the board.
In recent years, the board has clashed with the bureaucrats and the resulting challenges to the board’s exercise of its jurisdiction by developers led to two court decisions that restricted the board’s jurisdiction.
This problem increased legal costs for the city and heightened tension between the planning department and developers.
At the same time, the city balked at letting the board hire new staff.
Martin insisted the board had the authority to hire its staff independently, while the city maintained it had oversight and a legal interest in monitoring qualifications.
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