Vaughn Palmer: The project at issue was a 12-storey, 129-unit building in Kits intended to house homeless, mentally ill and low-income residents.
“The court was bypassed,” wrote Appeal Court Justice Mary Newbury on behalf of a three-member panel. “This clearly infringes on the court’s adjudicative role, contrary to section 96 of the Constitution Act.”
The 33-page judgement invalidated the provincial legislation and faulted the Eby government for failing to respect “the court’s authority to interpret the law.” It further indicated that the province had attempted to bypass the law “by a fiction”.
The project at issue was a 12-storey, 129-unit building intended to house homeless, mentally ill and low-income residents on a site near Arbutus and Broadway in Vancouver’s Kitsilano neighbourhood.
The implications go beyond the Arbutus project because Eby himself chose to make it an example of the NDP government’s determination to bypass not-in-my-backyard (NIMBY) opposition to social housing projects.
“This is housing that everyone agrees is needed,” Eby told The Vancouver Sun in an April 2023 interview. “It’s been completely stalled out. Despite there being a housing crisis, we’re now going into year two and it is still not built.”
At the time, the provincial housing ministry was in receipt of a letter from the City of Vancouver, pleading for the province’s help in heading off a neighbourhood group’s court challenge to the city-approved rezoning of the site.
“The filing of the petition (in court) creates potential uncertainty and delay for an urgently needed social housing project,” the letter read in part. “In order to resolve this uncertainty and prevent further delay the City of Vancouver formally requests that the province take whatever legislative steps are necessary to enable the rezoning of the site for the proposed social housing project.”
The premier’s lament, combined with the city’s request, led to the Municipalities Enabling and Validating Amendment Act, introduced and passed in the legislature in late spring 2023.
The Act was crafted to pre-empt any further challenges to the city’s approval of the project and to allow construction to proceed.
Accordingly, it declared that Vancouver’s hearing on the Arbutus project “is deemed to be validly held.” It also said that the amendment to the city’s zoning “is conclusively deemed to have been validly adopted by Vancouver council.”
Those deemings were further deemed to be valid “despite any decision by a court to the contrary before or after the section comes into force.”
The decision to bring down the legislative hammer on the court challenge from the neighbourhood group was unprecedented but necessary, said Housing Minister Ravi Kahlon.
“We simply cannot wait long and longer to get the critical housing that we need for people in the community,” said Kahlon. “That’s why we’re taking the steps we’re taking today.”
While the bill applied only to the Arbutus project, Eby didn’t rule out using it to expedite approval of other social housing projects down the line. “We’ll have to see in the future,” he told Katie Derosa of Postmedia at the time.
Still, the self-styled Kitsilano Coalition for Children and Family Safety fought on. In a follow-up action, it asked the courts to overturn the Eby government’s effort to pre-empt its right to challenge the validity of the city’s public hearing and rezoning approval on the Arbutus project.
The coalition lost the first round in B.C. Supreme Court. But this week, the court of appeal ruled that the Eby government had gone too far.
“A monumental win” that “underscores the vital principle that citizens have the right to challenge governmental actions through the court system,” said the coalition, taking a well-earned victory lap.
As a reminder that the forces of NIMBY have their reasons, the coalition reiterated its reservations about putting that particular project on that particular site.
“The project, as proposed, would have placed 129 units of low-barrier supportive housing, including an in-house drug consumption room, a mere 17 metres from an elementary school with 450 children, a successful women’s recovery home, and a toddler park. This is simply not a recipe for success.
“Unfortunately, our calls for meaningful engagement and collaboration have been largely ignored, forcing us to seek redress through the legal system.”
Officially, the province and the city are studying the court decision.
The Arbutus project has significant political implications for the New Democrats. The site is in the riding of Finance Minister Brenda Bailey and not far from the one represented by the premier himself.
In defending the project before he became premier, Eby tried to reassure the neighbourhood that the government was on top of concerns about public safety.
“Once the building has been operating for a bit, the community will see that it works well,” Eby told Dan Fumano of Postmedia. “And if it doesn’t, I’ve committed to them that I’ll work to address those issues immediately.”
The “trust us” defence didn’t work.
Now, having been slapped down by the court of appeal, the province would be wise to disavow further use of the legislative hammer and try in concert with the city to placate the Kitsilano neighbourhood concerns.