Court rules B.C. law to push through Vancouver housing project is unconstitutional

Houses are shown in the Vancouver Kitsilano neighbourhood on Monday, Oct. 3, 2022. THE CANADIAN PRESS/Jonathan Hayward

The B.C. Court of Appeal has ruled that a law passed by the provincial government to stave off opposition to a supportive housing development in the Vancouver neighbourhood of Kitsilano is unconstitutional.

The provincial government had adopted the law at the request of the City of Vancouver in 2023 to push through a 12-storey housing development at Arbutus Street, featuring units open to low income residents and users of support services.

But the Arbutus development was opposed by the Kitsilano Coalition for Children & Family Safety Society, which took the city to court over its in-principle approval of a rezoning to allow the project to go ahead.

Monday's ruling says the provincial government "evidently became concerned" the litigation could delay the rezoning, so it passed the Municipal Enabling and Validating Act to facilitate the project.

The B.C. Supreme Court upheld the law in November last year, but the community group appealed, arguing the law crossed the line in bypassing the court's "supervisory role" enshrined by Constitution.

The three-judge appellate panel found the legislation "amounted to interference" with the court’s adjudicative role.

Peter Gall, the coalition's lawyers, said Monday that the ruling is a "very important rule-of-law decision."

"It affirms the constitutional principle that the legislature can't take away or usurp the right of citizens to challenge governmental action," Gall said. "That's what the legislature attempted to do here with the law it passed."

The ruling said the case wasn't about whether the housing crisis "requires action or whether the proposed development should proceed" — the "sole issue" was whether the province infringed upon the role of the court.

Gall said the coalition challenged the validity of the public hearing into the project, and did so by going to court. The provincial government "simply said that 'we deem the public hearing to be in compliance with the law,'" Gall said.

"And that's not the legislature's role. That's the court's role," Gall said. "Citizens always have the right to go to court to challenge the exercises of statutory power," he said. "That's the essence of the rule of law."

Gall said the city can't proceed with the development until it holds a valid public hearing, and the coalition still wants the opportunity to work with city council to make changes to the development between West 7th and 8th avenues to "fit it better into the community."

"They wanted to work with the city to come up with a win-win," he said.

He said the province pressured the city to "ram" the project through, and instead of amending the law as allowed, the legislature "just prevented the court from ruling on the application of the existing law."

"The government in its haste really ignored that fundamental constitutional principle that you can't take away the right of the court to apply the existing law," he said.

The City of Vancouver said in a statement that it was reviewing the decision, although it was not a party to the appeal, and construction has not started.

Housing Minister Ravi Kahlon said in a statement that the province was also reviewing the ruling.

He said the province would "keep doing the work to make sure that more homes people need are being built."

This report by The Canadian Press was first published Dec. 23, 2024.