Reconstructing the Role and Responsibility of Local Governments in Making the Built Environment Accessible

By: Kala Bryson

Introduction

In Associated Provincial Picture Houses, Ltd v Wednesbury Corporation, Lorde Greene discussed the importance of courts deferring to local governments (“LGs”) in matters implicating competing interests, priorities, and values, making the following observation:

“If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. […] It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.”¹

This rationale for a heightened degree of judicial restraint when reviewing LG exercises of power continues to be persuasive over half a century later.² While the observation is most applicable within the context of judicial review, its underlying premise (i.e., that LGs are best situated to balance competing interests in their communities) has also received general acceptance from Canadian human rights tribunals including the BC Human Rights Tribunal (“BCHRT”).³ In its recent Belusic obo Canadian Federation of the Blind v City of Victoria and another (No. 4), 2020 BCHRT 197 (“Belusic”) decision, however, the BCHRT displaced the respondent LG’s analysis of its community’s needs with its own, finding that the respondent LG had contravened s 8 of the BC “Human Rights Code” (“Code”) by failing to adequately consider the needs of blind or visually impaired people when it decided to construct “floating bus stops” in its community.⁴ Accordingly, while the BCHRT has generally acted with restraint when reviewing LG exercises of power, as this paper will argue, “Belusic” suggests a renewed willingness by the Tribunal to review how LGs exercise their powers in matters relating to their communities’ built environment, a shift with significant implications for BC LGs.

This argument will be made in four parts. Part I will provide an overview of the statutory powers held by BC LGs, and Part II will discuss the limited circumstances under which a court or tribunal will review how an LG has exercised these powers. Following this, Part III will discuss how the BCHRT addressed complaints by persons with disabilities against LGs concerning the accessibility of their community’s built environment (“Built Environment Complaints”) prior to “Belusic”, and how “Belusic” differs from these decisions. Part IV will then discuss the implications of this paper’s argument, highlighting the importance of LGs receiving guidance on how they can make their built environments accessible in light of the costs associated with Built Environment Complaints and current climate change-motivated upgrades being made to the built environments of communities throughout the province.

Part I | BC LG Powers

To enable LGs to provide for the “good government” of their communities and foster their communities’ “economic, social and environmental well-being,” BC LGs are authorized to exercise a array of powers.⁵ For most of these LGs, this authority can be found in the “Community Charter” (“Charter”) and the Local Government Act (“LGA”), which provide LGs with general and specific powers.⁶ For example, s 8 of the “Charter” and s 263 of the LGA provide LGs with their “fundamental” or “general” powers, with the former authorizing municipalities to, among other things, “provide any service that the council considers necessary or desirable,” and the latter enabling regional districts to, inter alia, “make agreements respecting [the] regional district’s services, including agreements respecting the undertaking, provision and operation of those services”.⁷

Other, more detailed, provisions throughout the “Charter”, “LGA”, and community-specific legislation grant BC LGs specific powers. For example, ss 26-30 of the “Charter” provide municipalities with the “unrestricted authority” to dispose of works that supply and/or distribute gas or electrical energy, or form part of its “transportation system” insofar as they are no longer required for those purposes, while provisions like ss 35-46 of the “Charter” provide municipalities with broad decision-making powers in relation to streets, roads, lanes, bridges, viaducts and “any other way open to public use, other than a private right of way on private property”.⁸ Similarly, under the “LGA”, provisions like s 298 give the boards of regional districts authority to “regulate the construction, alteration, repair or demolition of buildings and other structures,” while ss 488-491 provide councils of municipalities and boards of regional districts with significant decision-making powers pertaining to the issuance of development permits.⁹

Part II | Reviewing the Exercise of LG Powers

Judicial Review Petitions

If there are concerns about how an LG in BC has exercised its powers, BC’s Judicial Review Procedure Act (“JRPA”) provides a mechanism through which a court can review the LG’s actions.¹⁰ This process is instigated by way of a judicial review petition and enables courts to address these concerns by authorizing them to, inter alia, order an LG to reconsider how it exercised its powers, set the LG’s decision aside, and/or issue an interim decision.¹¹

Although courts regularly review the exercise of broad, robust, and discretionary delegated powers like those held by LGs under the “JRPA”, courts are often reluctant to interfere with the exercise of LG powers.¹² This reluctance is because LGs “essentially represent delegated government” and thus attract a heightened degree of deference on judicial review.¹³ Courts are even more reluctant interfere with exercises of LG powers where the LG is a municipality due to their status as a “democratically elected, autonomous, responsible and accountable” form of government.¹⁴ Indeed, as Newbury J. observed in Catalyst Paper Corporation v North Cowichan (District), 2010 BCCA 199 at para 37:

“It is a central principle of democratic government that elected decision-makers must be given the highest degree of deference by courts of law, provided those decision-makers remain within constitutional and statutory boundaries.”¹⁵

Accordingly, a judicial review petition is not a forum through which a court will “adjudicate” the information used by the LG when exercising its powers, nor is it an opportunity for courts to “reconsider the wisdom” of an LG.¹⁶ Indeed, as Savage J. observed in International Bio Research v Richmond (City), 2011 BCSC 471, it is not the role of “a court to make judgments about the probable consequences” of an LG action.¹⁷ As a result, insofar as an LG can show that the exercise of its powers is within “a range of acceptable outcomes that are defensible with regard to the facts and law,” it will be difficult for a petitioner under the “JRPA” to successfully challenge how an LG has exercised its statutory powers.¹⁸

Human Rights Complaints

Where a concern about how an LG has exercised its powers can be brought within the ambit of the “Code” and articulated as a human rights complaint, the “Code” offers another mechanism through which these concerns can be addressed. Under this process, once the BCHRT has found that an LG’s exercise of its powers contravenes/contravened the “Code”, the Tribunal can order the LG to, inter alia, “cease the contravention and [refrain] from committing the same or a similar contravention,” and/or “ameliorate the effects of the discriminatory practice” or “the conditions of disadvantaged individuals or groups”.¹⁹

The BCHRT’s authority to examine LG exercises of power is premised upon the notion that once an LG “has elected to undertake a public activity, [it] must do so in a way that is inclusive of people with disabilities and furthers the purposes of the “Code””.²⁰ Accordingly, unlike courts reviewing petitions under the “JRPA”, when the BCHRT reviews a human rights complaint under the “Code”, it has freedom to consider the adequacy of the information that was before the LG when it made its decision, as well as the consequences associated with the LG’s exercise of its powers.²¹

There are numerous provisions of the “Code” that could be implicated through the exercise of LG powers; however, due to the role of LGs in providing day-to-day local services and facilities, s 8 of the “Code” is particularly relevant to BC LGs:²²

8 (1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.

Indeed, the BCHRT has significant discretion to evaluate human rights complaints concerned with LG exercises of power due to the expansive interpretation that has been applied to “accommodation, service or facility” under this provisionof the “Code”.²³

Thus, while concerns about how LG exercises of powers can be addressed by the courts through judicial review, or by the BCHRT through a human rights complaint, the level of scrutiny applied to how the LG exercised its powers will vary significantly between the two processes. While the former, for instance, will take place in accordance with the applicable standard of review which imports a high degree of deference, the latter is primarily concerned with whether the LG contravened the “Code”. Thus, since the adjudication of a complaint under the “Code” will not necessarily afford an LG the same degree of deference it would receive in the judicial review context, the BCHRT’s approach towards these complaints has significant implications for BC LGs.

Part III | Built Environment Complaints & Belusic

Although the BCHRT owes less deference to LGs than the courts, the BCHRT has historically given significant deference to LGs when handling Built Environment Complaints. This approach is particularly evident in how the BCHRT handled Built Environment Complaints prior to Belusic, in cases like Moser v District of Sechelt, 2004 BCHRT 72 2004 (“Moser”), Bowers v City of Port Coquitlam, 2009 BCHRT 410 (“Bowers”), Basic v City of Vancouver and another, 2015 BCHRT 155 (“Basic”) and Riddle v Town of Gibsons, 2017 BCHRT 148 (“Riddle”).

In Moser, for example – one of the few pre-Belusic decisions where the Built Environment Complaint was not dismissed under s 27 of the “Code”, the BCHRT found that the respondent LG had contravened s 8 of the “Code” by failing “to modify [a popular] walkway to better accommodate those with mobility impairments”.²⁴ When addressing the contravention, however, the BCHRT gave significant deference to the respondent LG and refrained from ordering it to implement a “specific solution, such as the installation of a railing,” instead providing the LG with “the flexibility to consider a range of alternatives”.²⁵ Additionally, the Tribunal left it open that the community’s “desire for unobstructed views” could “supersede the requirements of the “Code”” had the LG tendered more evidence on the matter.²⁶ Indeed, even though the BCHRT found that the respondent LG had discriminated against the complainant, it nevertheless offered considerable deference to the LG, leaving it to the LG to determine how to accommodate the complainant and suggesting that a decision to prioritize other community interests – where substantiated with evidence, could suffice to exempt the LG from a finding of discrimination under the “Code”.²⁷

In subsequent pre-“Belusic” decisions like “Bowers, Basic, and Riddle”, the BCHRT was even more deferential to the respondent LGs, with the Built Environment Complaints in all of these decisions being dismissed under s 27 of the “Code”. In dismissing these complaints, the BCHRT relied on considerations like constraints on LG resources, the presence of “detours” or “alternatives” the complainants could access, and the LGs’ responsibility to balance community interests and allocate resources accordingly.²⁸ While the Tribunal did not purport to owe deference to the respondent LGs when referring to these considerations, its reliance on the unique circumstances that affect the ability of LGs to accommodate persons with disabilities is reminiscent of the deference applied to reviews of LG exercises of power under the “JRPA”.²⁹

In “Belusic”, however, the BCHRT was considerably less deferential to the respondent LG than it had been to the LGs in prior decisions involving Built Environment Complaints (i.e., “Moser”, “Bowers”, “Basic”, and “Riddle”). Departing from its approach in “Bowers” and “Basic”, for example,the Tribunal gave little weight to the respondent LG’s generalized attempt to accommodate the complainant class in “Belusic” (i.e., its decision to install tactile mats at the impugned locations).³⁰ Indeed, despite the Tribunal referencing analogous efforts by the respondent LGs in “Bowers” and “Basic” in its reasons for dismissing their Built Environment Complaints, in “Belusic”, it gave little-to-no weight to the LG’s installation of tactile mats.³¹ While it is possible that the Tribunal gave less attention to the tactile mats since they did not address the concern identified by the complainant class(i.e., help them detect cyclists), this is hard to accept given that the tactile mats were arguably more responsive to the concern identified in the complaint relative to the accommodative measures contemplated or implemented in “Bowers” and “Basic”.³² Indeed, when the accommodative measures in “Bowers”, “Basic”, and “Belusic” are compared, it is clear that the respondent LG in “Belusic” received greater scrutiny from the Tribunal than the other LGs.

Relative to other Built Environment Complaints, the Tribunal also gave considerably less deference to how the respondent LG in “Belusic” exercised its powers. The depth of the Tribunal’s inquiries into the respondent LGs’ decision-making processes varied between “Moser”, “Bowers”, “Basic”, and “Riddle”, however, the Tribunal generally left it to the LGs in these decisions to determine what interests needed to be included and prioritized in their decision-making processes.³³ In contrast, in “Belusic”, the Tribunal found that it was “incumbent” on the LG “to take reasonable steps to remove the barriers created for the blind”, concluding that the LG had been “unaware of the [safety issues for visually impaired pedestrians before construction began], although [it] reasonably should have been” (my emphasis), citing interactions that took place before construction that should have made the LG aware of the concern raised in the complaint.³⁴ While it was open to the Tribunal to come to this conclusion, since this finding has the incidental effect of prescribing interests the respondent LG should have considered in its decision-making process, it offers considerably less deference to the respondent LG when compared to how the Tribunal handled pre-Belusic Built Environment Complaints.

The Tribunal’s analysis of what would need to be done to remedy the discrimination further illustrates the heightened scrutiny applied to the respondent LG in “Belusic”. Indeed, while the hearing had been bifurcated with the remedy portion of the decision being scheduled for a later date, the Tribunal nevertheless provided the respondent LG with directions on measures it would need to undertake to remedy the discrimination.³⁵ As part of this analysis, the Tribunal rejected various accommodative measures the LG proposed during the hearing, finding instead that a “commitment to install the audible flashing lights at [the impugned locations would] constitute a reasonable accommodation for the present and foreseeable future”.³⁶ The Tribunal also offered a vague and cryptic warning that if the respondent LG were to delay “an accommodation until [the Tribunal confirmed] the appropriateness of a particular accommodation,” the LG would “risk facing a remedy respecting that delay,” importing a tacit, direct, and indeterminate order that the LG be proactive in implementing accommodative measures in its community.³⁷ This analysis can be contrasted with the Tribunal’s more deferential approach in “Moser” in which the Tribunal gave the respondent LG “the flexibility to consider a range of alternatives,” and refrained from imputing an indeterminate remedy, deliberately declining the complainant’s request that it make a declaratory order under s 37(2)(b) of the “Code” on the basis that making such a broad declaration was not appropriate in light of the uncertain effect it would have on the respondent LG (i.e., what the LG would need to do in the future to avoid a finding that it had engaged in “similar conduct”).³⁸

Accordingly, while LGs in pre-“Belusic” Built Environment Complaints could rely on the BCHRT considering accommodative interventions they had introduced (i.e., contemplated or implemented), and deferring to them on the specifics of their decision-making processes or how they should go about remedying a finding of discrimination, post-“Belusic”, LGs facing Built Environment Complaints cannot expect such deference. This reduced deference makes LGs akin to other respondents facing human rights complaints, and thus supports the notion that “[LGs] who discriminate against people with disabilities should be treated the same as anyone else who discriminates,” namely, they “should be forced to stop the discrimination and take steps to make sure it doesn't happen again”³⁹ Whether “Belusic” will have this effect (i.e., stop LGs from discriminating and make them prevent discrimination from occurring in the future), however, is contingent upon LGs knowing how to make their built environments accessible.

Part IV | Discussion

There is currently no clear or definitive guidance for BC LGs on how they can go about making their built environments accessible.⁴⁰ This lack of guidance is a serious problem for LGs in BC because, as “Belusic” illustrates, it hinders the ability of LGs to recognize accessibility barriers being created in their built environments, creating the conditions that generate Built Environment Complaints.⁴¹ Accordingly, while this guidance would not necessarily give LGs a defence to Built Environment Complaint since compliance with guidelines or standards is generally not accepted as a defence under the “Code” (i.e., LGs would not be able to cite compliance with these theoretical guidelines to prevent a finding of discrimination under the “Code”), it is nevertheless critically important that LGs receive authoritative and clear directives on how they can make their built environments accessible to help prevent Built Environment Complaints.⁴²

The importance of helping LGs avoid Built Environment Complaints derives, in part, from the costs associated with these complaints. To elaborate, regardless of whether an LG is found to have contravened the “Code”, Built Environment Complaints pose a serious cost for LGs, as they require LGs to expend valuable financial resources and time that could otherwise be spent on other community priorities.⁴³ Further, as “Moser” and “Belusic” demonstrate, beyond the cost of litigation, there is also a risk of LGs being ordered to cover the cost of making their built environments accessible and/or being ordered to compensate the complainant for the injury to dignity associated with the discrimination.⁴⁴ Indeed, while “the expense is relatively small” “[s]o long as accessibility is incorporated in the initial design of [a] facility,” responding to an allegation or finding of discrimination can be a significant expenditure for an LG.⁴⁵ These costs are even more consequential for LGs due to their “limited resources” which place disproportionate financial strains on LGs that “do not have the same revenue-raising capacity as their federal and provincial peers”.⁴⁶ Accordingly, insofar as guidance on how LGs can make their built environments accessible will help LGs avoid Built Environment Complaints, it is critically important that they receive this guidance to avoid the financial costs associated with these complaints.

This guidance is also particularly urgent due to the extensive upgrades BC LGs are currently making to their built environments. Indeed, while LGs regularly maintain and upgrade of features in their built environments, climate change-motivated funding programs from the provincial and federal governments have instigated additional and more extensive upgrades. These supports are generally targeted at helping LGs (1) mitigate and adapt for disasters, and (2) expand active transportation in their communities, and as a result, implicate the built environments of communities throughout BC.⁴⁷ Accordingly, in light of “Belusic”, unless these upgrades accommodate persons with disabilities – a challenging task unless BC LGs are already alert to how these upgrades may create accessibility barriers, there is a serious risk of the number and scope of Built Environment Complaints against BC LGs increasing with each upgrade made through these programs. An ongoing Built Environment Complaint against the City of Maple Ridge provides a timely example of this issue (i.e., how upgrades like those currently being funded by the provincial and federal governments can instigate a Built Environment Complaint) as it was prompted by, inter alia, the respondent LG’s decision to install bike lanes in its community.⁴⁸ It is thus essential that BC LGs receive guidance on how they can make their built environments accessible as soon as possible, otherwise there is a risk of even more LGs in BC being implicated in Built Environment Complaints.

Although making communities inclusive benefits “people with disabilities and older adults, as well as all citizens traversing urban built environments,” “too often” “the will to address problems of inaccessibility simply does not exist”.⁴⁹ While human rights tribunals like the BCHRT are uniquely well-situated to address this lack of willpower, historically, they have been reluctant to exercise their powers in such a manner – a reluctance exemplified by the OHRT’s observation in Wozenilek v Guelph (City), 2010 HRTO 1652 at para 35:

It is an unfortunate part of the history of discrimination against people with disabilities and their invisibility to decision-makers that our society designed much of its infrastructure around the needs of persons without disabilities, without consideration of the barriers that were being created for others. The elimination of those barriers, however, is a process that sometimes reasonably requires time and significant expenditure, “meaning that full accessibility will not be possible right away” (my emphasis).

This observation, and others like it, have enabled LGs to move forward on matters without affording much consideration to how their actions or omissions may impact persons with disabilities in their communities.⁵⁰ Indeed, as Paul Storer, Vancouver’s Director of Transportation remarked when asked about the “Belusic” decision within the context of the floating bus stops installed in Vancouver, when the first floating bus stops were installed in the municipality in 2012 “[w]e hadn't really thought a lot at that point about the accessibility issues.”⁵¹ Thus, while LGs pre-“Belusic” were able to exercise their powers largely unencumbered by accessibility considerations, in the aftermath of “Belusic”, it is clear that BC LGs must take a more active role in considering and accommodating the needs of persons with disabilities in their communities when making upgrades to their built environments.

Conclusion

Although it has historically been reluctant to interfere with how LGs exercise their broad and robust statutory powers, as this paper has argued, the BCHRT’s recent “Belusic” decision suggests a renewed willingness by the Tribunal to review how LGs exercise these powers in relation to their communities’ built environments. As this paper has further argued, this shift in the law has significant implications for BC LGs as it indicates that the BCHRT will apply greater scrutiny to respondent LGs when handling Built Environment Complaints. Indeed, while there is a shortage of guidance for LGs on how they can make their built environments accessible, as “Belusic” illustrates, this lack of direction will not preclude the Tribunal from ordering an LG to remedy the discrimination, even in circumstances where it is not clear what the appropriate accommodation would be. Thus, given the costs associated with Built Environment Complaints, until clear and comprehensive guidance on how LGs can make their built environments accessible becomes available, it is essential that LGs in BC exercise caution when undertaking changes to their built environments. This caution is particularly important within the context of the various climate-change motivated upgrades being made to the built environments of communities throughout BC.

Citations

Cases

1120732 BC Ltd v Whistler (Resort Municipality), 2020 BCCA 10

1193652 BC Ltd v New Westminster (City), 2021 BCCA 176

Associated Provincial Picture Houses, Ltd v Wednesbury Corporation, [1948] 1 KB 223 (CA)

Basic v City of Vancouver and another, 2015 BCHRT 155

Belusic obo Canadian Federation of the Blind v City of Victoria (No. 4), 2022 BCHRT 2

Belusic obo Canadian Federation of the Blind v City of Victoria and another (No. 4), 2020 BCHRT 197

Belusic obo Canadian Federation of the Blind v. City of Victoria and another (No. 3), 2020 BCHRT 157

Bowers v City of Port Coquitlam 2009 BCHRT 410

Canadian Pacific Railway Co v Vancouver (City), 2006 SCC 5

Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2

Catalyst Paper Corporation v North Cowichan (District), 2009 BCSC 1420

Catalyst Paper Corporation v North Cowichan (District), 2010 BCCA 199

Catalyst Paper Corporation v Port Alberni (City) 2009 BCSC 1751

Freitag v Penetanguishene (Town), 2013 HRTO 554

Guevara v Louie, 2020 BCSC 380

International Bio Research v Richmond (City), 2011 BCSC 47

James v Salmon Arm (City), 2009 BCHRT 285

Kovacs v City of Maple Ridge, 2022 BCHRT 96

McRae v City of Nanaimo, 2019 BCHRT 144

Miele v Patt Quinn’s Restaurant and Bar, 2019 BCHRT 13

Moser v District of Sechelt, 2004 BCHRT 72 2004 paras 75 and 93

Nanaimo v Rascal, 2000 SCC 13

Portman v Yellowknife (City) (No. 1), 2016 CanLII 154167

Riddle v Town of Gibsons, 2017 BCHRT 148

Rocky Point Metalcraft Ltd v Cowichan Valley Regional District, 2012 BCSC 756

Shell Canada Products Ltd v Vancouver (City), 1994 CanLII 115 (SCC), 110 DLR (4^th) 1 (SCC)

University of British Columbia v Chan, 2013 BCSC 942

Westcoast Energy Inc v Peace River (Regional District), 1998 CanLII 6863

Westfair Foods Ltd v Saanich (District of), 1997 CanLII 3686

Wozenilek v Guelph (City), 2010 HRTO 1652

Yearsley v White Rock (City of), 2009 BCSC 719

Young v British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 1209

Legislation

“Community Charter”, SBC 2003, c 26

“Human Rights Code”, RSBC 1996, c 210

Judicial Review Procedure Act, RSBC 1996, c 241

Local Government Act, RSBC 2015, c 1

Resort Municipality of Whistler Act, RSBC 1996 c 407

Sechelt Indian Government District Enabling Act, RSBC 1996, c 416

shíshálh Nation Self-Government Act, SC 1986, c 27

The Cultus Lake Park Act, SBC 1932, c 63

University Endowment Land Act, RSBC 1996, c 469

Endnotes

¹ Associated Provincial Picture Houses, Ltd v Wednesbury Corporation, [1948] 1 KB 223 (CA) at 230 [Wednesbury]. For the purposes of this paper, a local government (“LG”) includes any village, town, city, or district municipality incorporated as a municipality under Part 2, Division 1 of the Local Government Act, RSBC 2015, c 1 [LGA], as well as “regional districts” incorporated under Part 2, Division 6 of the LGA.

² See e.g., Catalyst Paper Corporation v Port Alberni (City), 2009 BCSC 1751 at para 55; Catalyst Paper Corporation v North Cowichan (District), 2009 BCSC 1420 at para 76; Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at para 20; Westcoast Energy Inc v Peace River (Regional District), 1998 CanLII 6863 at para 26; Shell Canada Products Ltd v Vancouver (City), 1994 CanLII 115 (SCC), 110 DLR (4^th) 1 (SCC).

³ See e.g., Wozenilek v Guelph (City), 2010 HRTO 1652 at para 35 [Wozenilek]; Freitag v Penetanguishene (Town), 2013 HRTO 554 at para 134; Riddle v Town of Gibsons, 2017 BCHRT 148 at para 84 [Riddle]; Basic v City of Vancouver and another, 2015 BCHRT 155 at para 43 [Basic].

⁴ Belusic obo Canadian Federation of the Blind v City of Victoria and another (No. 4), 2020 BCHRT 197 at paras 7 and 127 [Belusic].

⁵ “Community Charter”, SBC 2003, c 26, s 7(a) and (d) [Charter]; “LGA”, supra note 1, s 185(a) and (d).

⁶ “Charter”, supra note 5; “LGA”, supra note 1. For LGs governed by community-specific legislation, determining the source of this authority may also require a consultation of their community-specific legislation. For example, while certain provisions of the “Charter” and “LGA” affect the City of Vancouver’s powers, the municipality’s powers are generally found in the “Vancouver Charter”, SBC 1953, c 55 (e.g., s 199 of the “Vancouver Charter” provides Council with “power to do all such things as are incidental or conducive to the exercise of the allotted powers,” while s 275 gives Council power to “grant, refuse, revoke, or suspend a licence without stating any reason therefor”). Other examples of community-specific legislation include the Sechelt Indian Government District Enabling Act, RSBC 1996, c 416, shíshálh Nation Self-Government Act, SC 1986, c 27, University Endowment Land Act, RSBC 1996, c 469, Resort Municipality of Whistler Act, RSBC 1996, c 407, and The Cultus Lake Park Act, SBC 1932, c 63.

⁷ “Charter”, supra note 5 at s 8(2) and “LGA”, supra note 1, s 2631(c).

⁸ “Municipalities” includes LGs incorporated as municipalities under Part 2 Division 1 of the “LGA”, supra note 1, or under other statutes. The “Charter”, supra note 5,vests streets, roads, lanes, bridges, viaducts and “any other way open to public use, other than a private right of way on private property” in municipalities (s 35(1)(a)) and gives municipalities the right of possession over lands exempted from s 35(1)(a) under s 35(2) (s 35(1)(b)).

⁹ “Regional district” means a regional district incorporated under Part 2, Division 6 of the “LGA”, supra note 1. A regional district’s board is only authorized to exercise its power under “LGA” supra note 1, s 298 if it is a regional district that “provides a service in relation to building inspection”.

¹⁰ Judicial Review Procedure Act, RSBC 1996, c 241, ss 5-7 and 10 [JRPA]. See, e.g., Yearsley v White Rock (City of), 2009 BCSC 719 [Yearsley]; Rocky Point Metalcraft Ltd v Cowichan Valley Regional District, 2012 BCSC 756 [Rocky Point].

¹¹ “JRPA”, supra note 10, ss 5-7, and 10.

¹² For judicial review of decision makers with “broad, robust, and discretionary delegated powers,” see e.g., Young v British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 1209, University of British Columbia v Chan, 2013 BCSC 942 and Guevara v Louie, 2020 BCSC 380. For judicial restraint in reviewing exercises of LG powers under the “JRPA”, see e.g., 1193652 BC Ltd v New Westminster (City), 2021 BCCA 176, 1120732 BC Ltd v Whistler (Resort Municipality), 2020 BCCA 10, and International Bio Research v Richmond (City), 2011 BCSC 47 [International Bio Research].

¹³ Nanaimo v Rascal, 2000 SCC 13 at para 31. The perspective that LGs “essentially represent delegated government” is entrenched in s 1 of the “Charter”, supra note 5, and s 185 of the “LGA”, supra note 1, which establish an LG as an “order of government”. Where LGs act in a “quasi-judicial” manner (e.g., when determining whether to issue a development permit or business licence), courts are more willing to interfere with the LG’s exercise of power on judicial review (see e.g., Westfair Foods Ltd v Saanich (District of), 1997 CanLII 3686 at paras 16-20; Yearsley supra note 10 at paras 24-27; Rocky Point, supra note 10 at para 29).

¹⁴ It is not clear that all LGs (i.e., municipalities and regional districts) are afforded the same degree of deference on judicial review because whereas municipalities are governed by democratically elected councils, regional districts are governed by boards comprised of “elected” electoral area directors and “appointed” municipal directors. As a result, one could potentially dispute whether a regional district is a “democratically elected” and “autonomous” form of government, especially in light of such language being absent from the “LGA” (see “LGA”, supra note 1, s 184). That said, since municipal directors must be elected to a municipality to be appointed, they are still held accountable at the figurative ballot box (“LGA”, supra note 1, ss 198-200). There may, however, be non-elected members in a regional district’s board where there is an acting “alternate” electoral area director and/or a treaty first nation director since these directors may not be democratically elected (“LGA”, supra note 1, ss 201 and 254).

¹⁵ Catalyst Paper Corporation v North Cowichan (District), 2010 BCCA 199 at para 37.

¹⁶ “International Bio Research”, supra note 12 at paras 52 and 54.

¹⁷ Ibid at para 57.

¹⁸ Ibid at para 83.

¹⁹ “Human Rights Code”, RSBC 1996, c 210, s 37 [Code].

²⁰ “Riddle”, supra note 3 at para 62.

²¹ For limitations on the scope of LG actions reviewable under the “JRPA”, supra note 10,see “International Bio Research”, supra note 12 at para 57.

²² For example, when an LG exercises its statutory powers to act as an employer (e.g., pursuant to ss 150-152 of the “Charter”, supra note 5, orss 233 or 241 or “LGA”, supra note 1), like other BC employers in BC, their actions can be reviewed by the BCHRT under ss 12 or 13 of the “Code”, supra note 19 (see e.g., McRae v City of Nanaimo, 2019 BCHRT 144).

²³ In James v Salmon Arm (City), 2009 BCHRT 285, for example, the BCHRT found that an LG’s enforcement of its bylaws fell within the ambit of s 8 of the “Code”, supra note 19. Similarly, in “Riddle” supra note 3, the Tribunal accepted that an LG’s decision to approve a development permit fell within the ambit of activities contemplated under s 8 of the “Code”, supra note 19.

²⁴ Moser v District of Sechelt, 2004 BCHRT 72 2004 paras 75 and 93 [Moser].

²⁵ “Moser”, supra note 24 at paras 91 and 100.

²⁶ Ibid at para 92 (“…the District also raised the possibility that the community desire for unobstructed views made the installation of a railing an undue hardship. “On the evidence before me”, I cannot find that a community preference for unobstructed views can supersede the requirements of the “Code”” (my emphasis)).

²⁷ “Moser”, supra note 24 at paras 70, 89, and 95.

²⁸ For constraints on LG resources, see Bowers v City of Port Coquitlam 2009 BCHRT 410 at para 21 [Bowers]. For the availability of accessible “detours” or “alternatives,” see “Basic” supra note 3 at paras 41 and 45, and “Riddle” supra note 3 at paras 93-95. For the LGs’ responsibility to balance community interests and allocate resources accordingly, see “Basic” supra note 3 at paras 42-43, “Riddle” supra note 3 at paras 84 and 96.

²⁹ In Canadian Pacific Railway Co v Vancouver (City), 2006 SCC 5, for example, the Court found that it was valid for the respondent LG to balance resident concerns about a specific tract of land in their neighborhood with the petitioner’s “other visions for the future of the corridor” in its zoning decision, concluding that the respondent LG “had a duty to deal with a complex situation where different interests were at play” (at paras 49-50). Similarly, in “International Bio Research”, supra note 12, in a matter concerning the validity of one of the respondent LG’s bylaws, the Court found that the LG’s “decision was on a policy laden topic on which there is no established ‘right or wrong in the matter,’” and was valid since it fell “within a range of acceptable outcomes that are defensible with regard to the facts and law” (at paras 42, 48 and 83).

³⁰ “Belusic”, supra note 4 at para 113.

³¹ In “Bowers”, for example,the Tribunal dismissed the Built Environment Complaint, citing the LG’s commitment to try to make its built environment more accessible for the complainant (“Bowers”, supra note 28 at para 20). Similarly, in “Basic”, the Tribunal dismissed the Built Environment Complaintreferencing the LG’s generalized efforts to improve accessibility (“Basic”, supra note 3 at paras 42-43).

³² Whereas the tactile mats would have been installed with the needs of the complainant class in mind, in “Bowers”, the Tribunal accepted that the respondent LG had “taken steps to resolve those issues raised by [the] complaint” by replacing “no stopping” with “no parking signs,” despite there being no apparent connection between the change in signage the concern identified in the complaint (i.e., the complainant’s ability to access his children’s school) and the complainant himself noting that the change had been a response to other groups’ concerns (“Bowers”, supra note 28 at para 22). Similarly, the Tribunal dismissed the Built Environment Complaint in “Basic”, relying largely on the respondent LG’s adherence to its internal timeline for curb maintenance in its reasons for dismissing the complaint, despite the LG’s timeline appearing to be entirely uninformed by the complainant’s needs (i.e., the amelioration of the discrimination was incidental to plans the LG already had underway) (“Basic”, supra note 3 at paras 41-44).

³³ In “Bowers”, the Tribunal accepted that the LG could not “dispatch resources that it [did] not have,” regardless of how “unsatisfactory” the complainant might be about its allocation of resources (“Bowers”, supra note 28 atpara 21). Similarly, in “Basic” the Tribunal concluded that it was up to the LG to “assess priorities” finding that the LG’s prioritization of curb upgrades had been sound (“Basic”, supra note 3 atpara 43). Similar reasoning was employed in “Riddle” where the Tribunal concluded that the LG was “entitled to prioritize greater accessibility to the service for a greater number of people” (“Riddle”, supra note 3 at para 84). Indeed, even in “Moser”, the Tribunal left it open that the community’s “desire for unobstructed views” could “supersede the requirements of the “Code”” had the LG tendered more evidence on the matter, leaving the LG with discretion to determine what interests should be included and prioritized in its decision-making process (“Moser”, supra note 24 at para 93).

³⁴ “Belusic”, supra note 4 at paras 86 and 127.

³⁵ Ibid at paras 6, 129-130, and 140-148.

³⁶ “Belusic”, supra note 4 at paras 129-130, and 140-148.

³⁷ Ibid 4 at para 149. The issue of whether the complainant class in “Belusic” could use this warning to secure remedial orders (i.e., additional or alternative accessibility interventions beyond the installation of audible signals) at the scheduled remedy hearing was contemplated in Belusic obo Canadian Federation of the Blind v City of Victoria (No. 4), 2022 BCHRT 2, with the Tribunal concluding that it did not. While this decision narrowed the respondent LG’s liability in “Belusic”, since it did not address or limit the ability of the complainant class in “Belusic” to pursue another human rights complaint on the same issue, the respondent LG’s liability and responsibility for pursuing accessibility interventions in the future remains open.

³⁸ “Moser”, supra note 24 at paras 94-95 (the Tribunal refrained from issuing a declaration under s 37(2)(b) of the “Code”, supra note 19) due to “the difficulty of determining what ‘similar conduct’ would be” within in the specific circumstances of the decision).

³⁹ Jon Hernandez, “Blind B.C. woman files discrimination complaint over city roundabouts, bike lanes,” CBC News, published January 6, 2023.

⁴⁰ Various levels of government have tried to provide this guidance; however, to-date none have been successful in this regard. For example, although the provincial government created the “Building Accessibility Handbook” in 2020 which “offers suggestions, through text and illustrations, on how many of the requirements in [BC’s Building Code],” since its contents “cannot be read as legal interpretations of the British Columbia Building Code,” and it is not designed to be a “design guide or training manual” its utility is limited (Office of Housing and Construction Standards, “Building Accessibility Handbook: Illustrated Commentary on Accessibility Requirements British Columbia Building Code 2018,” retrieved March 19, 2023, p. 4). Similarly, while the federal government’s recently released document titled, “Draft: A Model Standard for the Built Environment – Accessibility” aims to create standards to “remove and prevent barriers in the built environment for everyone, including persons with disabilities,” since it is “under development and subject to change” and the federal government has indicated that it “should not be used for reference purposes,” its utility is also limited (Accessibility Standards Canada, “Draft: A Model Standard for the Built Environment – Accessibility,” published November 2022, p. 1.) This issue is also evident in decisions from the BCHRT, with the Tribunal in Moser, supra note 24,querying whether the “Building Access Handbook” created by the provincial government would be a “useful resource” to help the LG remedy the discrimination, recognizing that it lacked the evidence necessary to impose a specific remedy (at paras 99-100). Similarly, in Belusic, supra note 4, the BCHRT found that the respondent LGhad discriminated against the complainant class, but lacking guidance on how the complainant class could or should be accommodated, concluded that the only evidence-based intervention before it would suffice as an interim accommodation, leaving it open that the LG may need to install additional or alternative interventions if “technologies that would provide fully guaranteed protection for blind pedestrians [became] available in the future and would not result in undue hardship” (at paras 144-149).

⁴¹ “Belusic” supra 4 at para 127 (“I find that the issue was not a consideration for the City because it was not recognised as such due to its absence from the “Design Guide” and other guides consulted…”).

⁴² “Moser”, supra note 24 at para 67. See also Miele v Patt Quinn’s Restaurant and Bar, 2019 BCHRT 13 at paras 43 and 44.

⁴³ In a 2016 Built Environment Complaint, for example, a respondent LG was ordered to, inter alia, implement a variety of accessibility interventions at its pool, with the complainant receiving a $7,500 injury to dignity award against the respondent LG (Portman v Yellowknife (City) (No. 1), 2016 CanLII 154167 at paras 46-50). Additionally, as evidenced by the City of Toronto’s 2008 “Update on the City’s Accessible Pedestrian Signals (APS) Retrofit Program and an Ontario Human Rights Complaint Involving the City’s Provision of APS,” LGs may also be required to expend a considerable amount of time and money settling a Built Environment Complaint. This “update” was precipitated by a human rights complaint against the LG, with the staff report recommending that the LG transfer $670k to its Accessible Pedestrian Signal Program (“APS”) budget (which had previously been $680k) to make its total budget $1.35M to address the respondent LG’s APS backlog (City of Toronto, “Update on the City’s Accessible Pedestrian Signals (APS) Retrofit Program and an Ontario Human Rights Complaint Involving the City’s Provision of APS” Staff Report, published January 21, 2008, p. 2).

⁴⁴ “Moser”, supra note 24 at paras 96 and 101. While the respondent LG in “Belusic”, supra note 4,was not ordered to compensate the complainant class under s 37(1)(d)(iii) of the “Code”, supra note 19, in a prior decisions the Tribunal dismissed BC Transit’s application to dismiss, identifying that it could order an injury to dignity award against one or both of the respondents (BC Transit and the respondent LG) (Belusic obo Canadian Federation of the Blind v City of Victoria and another (No. 3), 2020 BCHRT 157 at paras 21-23) (“An injury to dignity award is designed to compensate a complainant for injury to their dignity, feelings and self respect and could certainly be appropriate in a case such as this, depending on the evidence presented at a hearing. Although I agree that the most important element of this case, if it is successful, may be the structural or technical solutions resulting, a monetary award is required in most every case to redress the effects of discrimination and there is no basis for concluding that such an order would not be appropriate in this case”).

⁴⁵ Samuel Bagenstos, “Towards An Urban Disability Agenda,” Fordham Urban Law Journal 47, no. 5 (2020), p. 1354 (1335-58) [Towards An Urban Disability Agenda]. See also, The Conference Board of Canada, “The Business Case to Build Physically Accessible Environments” (2018), p. 30. For the cost of remedying discrimination, see “Moser”, supra note 24 at paras 40 and 101, and Wozenilek supra note 2 at paras 32 and 35.

⁴⁶ Sunil Johal, “The case for growing the Gas Tax Fund A report on the state of municipal finance in Canada,” Federation of Canadian Municipalities, published September 2019, p. 11; Auditor General for Local Government “Asset Management For Local Governments: Key Considerations for Local Government Council, Board Members and Staff to Help You Manage Your Infrastructure Assets,” published July 2015, p. 7.

⁴⁷ For disaster mitigation and adaptation programs, see e.g., the federal government’s “Disaster Mitigation and Adaptation Fund” which funds the “construction of [new] public infrastructure and/or modification or reinforcement of existing public infrastructure” and received funding boosts of $1.375B in 2021 and $489.1M 2022 (Infrastructure Canada, “Disaster Mitigation and Adaptation Fund,” accessed March 12, 2023). See also the provincial government’s “Community Emergency Preparedness Fund” which can be used to, inter alia, fund the “new construction of public infrastructure and/or modification or reinforcement of existing public infrastructure, including natural infrastructure, that prevent, mitigate, or protect against natural hazards and climate-related disasters” and in 2023, received an investment that nearly doubled its funding to-date (Ministry of Emergency Management and Climate Readiness, “Province boosts funding for communities to help tackle climate challenge,” News Release, published February 21, 2023). For active transportation programs, see e.g., the federal government’s “National Active Transportation Strategy,” which was launched in 2021 and will “provide $400M over five years to help build new and expanded networks of pathways, bike lanes, trails and pedestrian bridges” in communities across Canada (Minister of the Office of Infrastructure of Canada, “National Active Transportation Strategy 2021-2026,” published 2021, p. 3). See also the provincial government’s “Move. Commute. Connect. Active Transportation Strategy” which was launched in 2019 and aims to support “the development of transportation networks” with convenient “roads, bike lanes, sidewalks and trails” throughout the province (Ministry of Transportation and Infrastructure, “Move. Commute. Connect. BC’s Active Transportation Strategy,” published June 2019, p. 18).

⁴⁸ Kovacs v City of Maple Ridge, 2022 BCHRT 96 at para 1 (“Maria Kovacs lives in the City of Maple Ridge [City]. Ms. Kovacs is blind. She claims that the City “constructed roundabouts and bike lanes that limit her ability to safely walk around her neighbourhood and access public transit”. She alleges that this amounts to discrimination on the basis of a disability, contrary to s 8 of the [Code]” (my emphasis)).

⁴⁹ For the value of making communities inclusive, see Yochai Eisenberg, Amy Hofstra, Sierra Berquist, Robert Gould, and Robin Jones, “Barrier-removal plans and pedestrian infrastructure equity for people with disabilities,” Transportation Research Part D: Transport and Environment 109 (2022), p. 8 (“Accessible communities that are free of barriers benefit people with disabilities and older adults, as well as all citizens traversing urban built environments”). For the lack of willpower by LGs to address accessibility, see Towards An Urban Disability Agenda, supra note 45, p. 1355. See also Thea Kurdi and Anika Abdullah, “Disability justice in the city,” Plan Canada 61, no 1 (2021), 48 (47-49).

⁵⁰ See footnote 3.

⁵¹ Bethany Lindsay, “Ruling on B.C. bus stops reflects cities' 'terrible' track record on accessibility, plaintiff says,” CBC News, published November 21, 2020.

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