Day 1 – FCRA vs the City of Vancouver and Concord Pacific

Back in May 2014, the FCRA filed a petition in the Supreme Court of British Columbia asking the Court to determine whether the City was right in according Concord Pacific “Hardship” status, exempting them from the Park zoning, and allowing them to conduct business on the 9 acres park-zoned site located on the northeast shore of False Creek.  The existing permit expired on May 16th, and our petition to the court asked that it not be renewed.

Our issue was very simple, and lawyers for the City agreed it could be dealt with in one day.  Enter Concord Pacific.  Concord filed an application to be named a full party to our dispute with the city.  Their application was granted, and our case became FCRA vs the City of Vancouver AND One West Holdings (Concord’s legal name).

Let me take a quick detour to provide some definitions.  Our legal action is a Judicial Review procedure.  Many decisions are made by civil servants acting in a quasi-judicial manner, and by various administrative boards and tribunals.  Appointees are normally considered “experts” in their fields.  For example, a member of the BC Labour Relations Board will normally have extensive knowledge of labour law and/or staff relations and/or human resource management.  In cases such as this, Courts allow a high level of “deference” to the decisions made.  Because the decision-maker has specialized expertise, the Judge will only consider whether the decision was “reasonable”, not whether it was correct.

However, the decision-maker must stay within the ambit of his/her expertise.  Otherwise, the decision-maker looses jurisdiction, and a Judge may review the decision on the basis of “correctness”, not simply “reasonableness”.  If a decision-maker makes a decision outside the authority of the legislation that created the mandate, this too would render the decision reviewable on the higher standard of “correctness”.

After our petition was filed in May, on July 24, 2014, the City of Vancouver renewed the “temporary” development permit, allowing Concord another 3 years of doing business on the park site.  We then amended our petition, asking the Court to quash that decision and not to allow for any of the other commercial operations to take place on the 9 acre site.

Back to our day in court.

The day started with Concord’s lawyer, Mr. Hein Poulus, Q.C. asking for an adjournment because he would require more than just one day of the court’s time.  We all knew that to get a 2-day court appointment would take us well into 2015.  Our lawyer, Bob Kasting, argued that we should proceed.  The Mr. Justice Sewell agreed.

Bob presented our case:

  1. That allowing commercial use of park-zoned land wasn’t’ just a mere “relaxation” of the zoning, it was a change of use from Park to Business.
  2. That the Director of Planning did not have jurisdiction in the Vancouver Charter to change use, rather Council would have to go through its normal procedure of re-zoning to change from park zoning to commercial use.
  3. Therefore the Director of Planning did not have the jurisdiction.
  4. Alternately, if the Director of Planning had the jurisdiction, he made an unreasonable decision in considering the application of “hardship” to Concord’s situation as all Concord’s evidence was about their marketing a “waterfront” lifestyle, not about hardship.

Concord presented next, although obviously there were ongoing private discussions between the City’s lawyer and Mr. Poulus. Mr. Poulus took the Court through a lengthy (and in our view totally irrelevant) history lesson from Expo ’86 through to the present.  His presentation also attempted to interpret the FCRA’s motivations.  Hours later, he finally got around to focussing on the questions before the Court.

Concord and the City argue that the Director of Planning has jurisdiction to relax the zoning and allow commercial use of park land.  Further, they argue that because of the shortage of land in northeast False Creek, not allowing this use of the 9 acre park site would cause “unnecessary hardship” to Concord.

By the end of the day, Concord finished its presentation, but indicated that they were “surprised” by our application to deny other commercial uses for Lot 9, and would need time to prepare for additional submissions.

Court adjourned.  Our challenge now is to schedule another day in the Court.  At that point, the City of Vancouver is likely to present rather than simply allowing Concord to speak on its behalf.  Then the FCRA will have an opportunity for a closing statement.

Submissions and supporting affidavits are all posted on our web site: falsecreekresidents.org.

In addition, Jeff Lee has written a piece in the Vancouver Sun.  He was present for the first half of the day’s proceedings.

Although obviously the FCRA wants to get on with building the park, however, that is not the issue before the court.  In our view, Concord’s extensive presentations on soil remediation, viaduct removal, allowing various charitable organizations to use lot 9 for events like the Sun Run, etc. is background noise, attempting to delay proceedings and confound the court.  But at the end of Day 1, Mr. Justice Sewell made it clear that he is still focussed on the “evidence of hardship” before Mr. Jackson when the decision was made to allow commercial use of park-zoned land.

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