Précis: The British Columbia Supreme Court dismissed a challenge of the approval of a licence of occupation for a private marina.
Facts: This was a judicial review of the Defendant/Respondent Ministry’s decision to grant a licence of occupation over aquatic Crown land in 2018. In 2004 the local Council passed a resolution permitting the Defendant Strata to build a marina on Quarry Bay on Okanagan Lake. That resolution stipulated a policy that South Bay, a neighbouring area, would be closed to vessels and moorage buoys. The Quarry Bay marina was not built with a breakwater that the local Council had required the marina to be, and the marina was destroyed by a storm in 2010. In 2011, the Defendant Strata submitted an application and management plan for a 72 slip marina in South Bay (the “First Application”), citing that the wind direction at Quarry Bay was not suitable for moorage. In the interim, the Defendant Strata began installing moorage buoys in both Quarry Bay and South Bay, all of which were authorized by the federal Minister of Transport. The Defendant Ministry denied the First Application, on the basis that the Quarry Bay marina was not built according to the Council standards, and that the resolution had a policy of no South Bay marina development. As the number of mooring buoys increased to over 90 by 2015, it was mutually agreed that the mooring buoys were creating a hazard to safe navigation. This resulted in a second application to the Defendant Ministry in 2015 for a marina at South Bay (the “Second Application”). The Second Application received the support from the local Council, federal and provincial government agencies (D.F.O./Ministry of Environment) , and was ultimately approved in 2017 for a twenty year term.
The Plaintiff/Petitioners challenged the decision approving the Second Application, stating that the First Application decision should stand. The Petitioners challenged on grounds that the approval of the marina in South Bay was unreasonable, the Respondent ministry sub-delegated or fettered its discretion in approving the Second Application, and that the principles of procedural fairness were not complied with in making the decision.
Decision: Petition dismissed.
Held: The Court applied the Dunsmuir standard of reasonableness to the Respondent Ministry’s decision. In doing so, the Court found that the decision to depart from the First Application decision and reasons for doing so were within the range of acceptable outcomes, given that the decision was made in consideration of different studies, the protection of the environment, local government zoning and Indigenous consultation. The decision and reasons for the decision were transparent, justified and intelligible.
The Court rejected the Petitioner’s argument that the Respondent Ministry fettered its discretion by approving the Second Application based on the Council’s decision to permit moorage in South Bay. On the evidentiary record before it, the Court found that the decision to approve the Second Application was made in light of extensive reports, provincial and federal government approval, and were therefore not made solely on the basis of the Council’s approval.
The Court also rejected the Petitioner’s argument that the Respondent Ministry failed in their duty of procedural fairness. It was clear to the Court that the Petitioners were involved throughout the approval process, had communication with the Ministry’s representatives, the opportunity to make submissions to the Council and also have specific questions answered by the Ministry. While noting that the approval of the Second Application may have impacted some individuals, the Court held the duty of procedural fairness was adequately complied with.