Board of Variance

The East Vancouver Salsbury Garden plot thickens  

In the latest installment, things have heated up considerably: Vancouver City Council has fired the whole Board of Variance and the Board have taken the City to BC Supreme Court  

by Kevin Potvin  

Previously in The Republic, we told you about Salsbury Garden, a small patch of urban oasis that nearby neighbours had over the decades carved out of the noisy and bustling east side of the city. We told you about how the property had recently been sold to a developer, Niebuhr Construction, who planned to put up two duplexes on top of the garden.

We wrote then about how neighbours banded together and succeeded in getting the Parks Board to offer market rates to the developer to purchase the land and make an official park out of the lots. And we told you how the stubborn developer rebuffed these offers.

Then we told you how the neighbours got the Heritage Committee to recognize the two old prefabricated workers’ cottages on the property as number six on the city’s endangered list for heritage sites, and how the developer was unmoved still.

We then told you, as the story unfolded, about how the neighbours appealed the developer’s permit, issued by the planning department, to the Board of Variance, and how, after a marathon meeting in a hot airless room in City Hall, the miraculous occurred, and the Board of Variance overturned the permit.

Then we told you about how the developer again resisted selling the property to the Park Board and instead took the Board of Variance to BC Supreme Court. We wrote about the surprise we found there when a City staff lawyer was spotted taking a seat at the table alongside the developer’s lawyers, joining them in arguing before the court against the Board of Variance, claiming it had exceeded its jurisdiction by even listening to the neighbours and what they had to say about their love of the unofficial park. That case is still in the judges’ hands and no decision has been handed down yet.

In the meantime, we told you about how two homeless men living and sleeping on the grounds told us the developer had been encouraging them to break into the two historic cottages and a special cob house on the property, and to keep the neighbours and children from coming back in to tend the gardens, and to destroy the work they find the gardeners had carried out.

We left off telling you we would stay tuned to the story for future developments. Well, those future developments have occurred. Boy, have they ever.

Two weeks ago, acting on advice from the same staff the Board of Variance had overturned, City Council fired the whole Board of Variance and is planning now to replace all five members with hand-picked toadies. The fired members of the Board believe the first thing a new replacement Board will do is withdraw from the challenge of the Board over Salsbury Garden at BC Supreme Court—to, in essence, give up.

To further complicate matters, the fired members of the Board have themselves taken the City to BC Supreme Court to get the firing overturned, arguing that the mass dismissal was enacted in bad faith by City Councilors who were acting on malicious advice produced by staff in a closed meeting of Council June 27 and June 29. The BC Supreme Court heard arguments last week and will render a decision on July 25—one day before the next scheduled meeting of the Board of Variance, whoever that might be.

This case was not without its surprises too. Who should show up taking a seat at the City lawyer’s desk but a lawyer from the provincial government’s Attorney General’s office. George Copley told me he was there to ensure nothing happens to dilute the clarity of that piece of provincial legislation called The Vancouver Charter, in particular, section 572, part 2.1, which says that City Council can rescind an appointment to the Board of Variance at any time.

There were many arguments made over the two days of presentations by all three sides. The lawyer for the fired members argued that part 2.1 should be “read down,” meaning the absolute right of Council to fire the Board should be tempered with either the requirement for a fair hearing for the affected members, or a requirement to show just cause. But the argument is not likely to succeed. Both the Attorney General’s lawyer and the City’s lawyer argued persuasively that if the legislation intended to temper City Council’s power, it would have consciously done so. The fact that nothing is added to the sentence laying out Council’s right to fire any Board member at any time makes the legislators intent clear, and it is not the role of a court to rewrite legislation, but only to discern what the intent of it is.

But the critical argument that could swing the case one way or the other seems to be whether City Council acted in good or bad faith when it took the decision to fire the whole Board. Even the lawyer for the City agreed that if it acted in bad faith, the court has a role to play in overturning Council’s decision. “Good faith” and “Bad faith” have specific meanings in court parlance. The Council can be unreasonable, misinformed, and even plain wrong in its judgments, but still be acting in good faith, if it thinks it is doing the right thing for what it believes are legitimate reasons. It is acting in bad faith, however, if it is knowingly applying misinformation or using illegitimate reasons to make its decisions.

The problem is, the only evidence available for what the reasons were for the firing are in the press, and the judge informed the fired member’s lawyer three times that he can’t rely on the hearsay of press reports to discern the reasons, stated or secret, for Council to fire the Board. But the only reason the press is the only source of information on why the Council fired the Board is because the Council took the matter in-camera, meaning the chambers were closed to the public and press while it was being discussed, and it is only press interviews with Councilors after the fact that have revealed what may or may not have been the reasons for the decision to fire the Board inside Council Chambers.

Days later, the City Clerk made the minutes of the in-camera meeting publicly available. But the one big difference between in-camera and in public meetings is that the minutes of an in-camera meeting do not contain any transcript of what was said in debate by Councilors or by staff testifying to them, while debates and comments made during public meetings by both Councilors and staff are available for all to see. We can never know what was said in chambers by Councilors or staff before the fateful decision was made to fire the Board of Variance en masse, and we cannot conclude, therefore, whether the decision was made in good faith or bad.

But there is one clue. Why was the Council meeting taken in-camera? A public and elected body can never, and should never, take meetings in-camera unless it is absolutely necessary. The reason one might suppose this meeting was taken in camera is because all meetings in which appointments of specific people are discussed are conducted in-camera to protect the applicant from negative comments Councilors and staff might make about them. The same, we might imagine, would apply to discussions about the dismissal of an individual. But in the case of these five dismissals, there is no evidence that any one individual’s performance was to be specifically assessed. In public comments, it would appear it was the performance of the Board as an institution that was being assessed. There has been no allegation of wrongdoing laid against any member. Even one of the reasons offered in public for the dismissal—cost overruns on the legal budget—have only to do with the Chair of the Board, since the other members have no control over spending decisions.

So why was the meeting taken in-camera? The decision to do so suggests bad faith, because no good faith reasons to do so are available. And once we accept that bad faith surrounds the decision to take the meeting in camera, we can only conclude that it was because bad faith was going to play a role inside that meeting—bad faith that would never be recorded for future court review, which is the purpose of taking a meeting in-camera.

In a press release, the City announced it is already proceeding with appointing a new Board of Variance, in case the judge rules on July 25 that the firing of the old Board can stand. Members of the old Board inform me they suspect the first order of business for the new Board will be to withdraw from the Salsbury Garden case currently awaiting the judge’s decision at BC Supreme Court. The old Board, should the judge overturn Council’s decision to fire them, would not likely withdraw from the case. To do so would be to send a message to all developers that one need only threaten to sue the Board to cause the Board to find in one’s favour.