2024 BCSC 207

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Fergus Creek Homes Ltd. v. Surrey (City),

2024 BCSC 207
Date: 20240208
2024 BCSC 207 (CanLII)

Docket: S2210195
Registry: Vancouver
Between:
Fergus Creek Homes Ltd.
Petitioner
And
The City of Surrey

Respondent
Corrected Judgment: The text of the judgment was corrected at paragraphs 31 and
64 on February 12, 2024.
Before: The Honourable Justice Stephens
Reasons for Judgment
Counsel for the Petitioner: N. Baker
Counsel for the Respondent: P. Hildebrand
Place and Date of Hearing: Vancouver, B.C.

August 30 and November 6, 2023
Place and Date of Judgment: Vancouver, B.C.
February 8, 2024
Fergus Creek Homes Ltd. v. Surrey (City) Page 2
Table of Contents
INTRODUCTION ....................................................................................................... 3
BACKGROUND......................................................................................................... 3
ISSUES ...................................................................................................................... 7

DISCUSSION............................................................................................................. 7
Council’s Decision to Not Apply the Procedure Bylaw is Reviewable..................... 8
Council’s Decision to Not Apply s. 43(1)(a) of the Procedure Bylaw was
Unreasonable ....................................................................................................... 11
REMEDY ................................................................................................................. 16
ORDERS ................................................................................................................. 18
Introduction
[1] Fergus Creek Homes Ltd. (the “Petitioner”), a property developer, applies for
judicial review of a series of decisions made on November 28, 2022, by Council for
the City of Surrey (the “City”) which had the effect of halting the Petitioner’s

proposed property development project. These decisions rescinded resolutions
Council had made previously relating to the Petitioner’s development project,
including (1) rescinding third reading of bylaws applicable to the Petitioner’s
proposed development; (2) “filing” the applicable bylaws; and (3) closing the
Petitioner’s development application.
Background
[2] The Petitioner is the registered owner of a 10.4-hectare property consisting of

five legal parcels in Surrey, British Columbia (the “Property”).
[3] In or about September 2020, the Petitioner submitted a development proposal

to build, among other things, 482 townhouses on the Property (the “Proposed
Development”). The City assigned the proposal as Application No. 7920-0224-00.
[4] In or about November 2020, Council voted unanimously to refer Application

No. 7920-0224-00 back to the City staff to “complete the application review process
and to prepare the rezoning report including all By-law and Development Permit for
Council’s consideration at a future Regular Council - Land Use meeting.”
[5] On July 25, 2022, Council gave first and second readings to two bylaws to
permit the Proposed Development:
(a) “Surrey Official Community Plan Bylaw, 2013, No. 18020, Amendment
Bylaw, 2022, No. 20729”, to amend the OCP to change the land use
designation from Mixed Employment to Multiple Residential (the “OCP
Amendment Bylaw”); and
(b) “Surrey Zoning Bylaw, 1993, No. 12000, Amendment Bylaw, 2022,
No. 20730” rezone the Property from RA to RM-30 (the “Rezoning Bylaw”).
(collectively, the “Amending Bylaws”)
The motion carried.
[6] The City then held a public hearing for the Amending Bylaws on August 8,
2022. Following the public hearing, Council gave third reading to the Amending
Bylaws. Council also:
(a) supported the issuance of development variance permit No. 7920-0224-

00 (the “Development Variance Permit”); and
(b) resolved to consider issuance of the subject permit upon final adoption of
the associated Rezoning Bylaw.
[7] On October 7, 2022, the City’s approving officer granted a preliminary layout
approval (“PLA”) for the proposed subdivision of the Property, setting out the
conditions that had to be met before the subdivision would be approved (the “PLA
Letter”). The PLA Letter stated that the PLA was valid for one year from the date of
issuance.
[8] On October 19, 2022, a City planner wrote the petitioner’s architect a letter
stating that “this application was granted third reading by Council on August 8,
2022”, and that the letter “set[s] out the requirements to complete your application”.
A section entitled “Council Requirements/Comments” followed for three pages.
[9] On October 15, 2022, there was a 2022 general municipal election. A new
mayor and a newly-constituted Council were elected There were five new Council
members of the nine-member Council, and these five new members were not
Council members at the time of the August 8, 2022 public hearing and special
Council meeting.
[10] Following the October 2022 municipal elections, the newly constituted Council
further considered the Proposed Development, leading up to the November 28, 2022
municipal decisions now at issue.
[11] Specifically, at a November 14, 2022 Council meeting, a notice of motion was
brought forward to “rescind third reading of the bylaws related to development
application number 7920-0224-00 and that the bylaws be filed and the application be
closed” (the “Motion”).
[12] The Petitioner was informed by an email sent on Friday, November 25, 2022
at 3:33 p.m. that the Mayor had put forward the Motion on November 14, 2022 and
that the Motion would be considered at the regular Council public hearing meeting
on November 28, 2022.

[13] On Monday, November 28, 2022, the Mayor brought forward the Motion at a
Council meeting.
[14] A copy of the August 8, 2022 minutes were provided to Council on November
24, 2022. However, Council was not provided with a new staff report or any other
written briefing about the Proposed Development that was the subject matter of the
Motion which included the history of prior relevant staff actions or consideration of
s. 43(1)(a) of the Procedure Bylaw (which is discussed below).
[15] After a brief debate (also discussed further below), Council voted by a
majority in favour of rescinding third reading of the Amending Bylaws, filing the
Amending Bylaws, and closing Application No. 7920-0224-00 (“Resolution R22-
2223”).
[16] Council then proceeded by a majority to pass five additional related

resolutions:
(a) rescinding third reading of Bylaw No. 20729, granted by Resolution

RES.R22-1622, at the August 8, 2022, Special Council meeting;
(“Resolution R22-2224”)
(b) filing Bylaw No. 20729;
(c) rescinding third reading of Bylaw No. 20730, granted by Resolution
RES.R22-1623, at the August 8, 2022, Special Council meeting;
(d) filing Bylaw No. 20730;
(e) closing Application No. 7920-0224-00.
(Resolution R22-2223 to Resolution R22-2228 are collectively, the “Impugned

Resolutions”)
[17] The Petitioner’s Proposed Development came to a halt after the Impugned
Resolutions were passed on November 28, 2022.

[18] The Petitioner was not invited to speak to the Motion or the Impugned
Resolutions at the November 28, 2022 meeting.
[19] The City has taken the position and says it has adopted the practice of not
considering further representations from any party (including the petitioner) in
relation to these resolutions because the City did not wish to impair the integrity of
the applications, or the application process, by considering further submissions from
any party following the August 8, 2022 public hearing.
[20] Other and separate development applications were also on the agenda at the
same Council meeting, but I do not find it necessary to consider those other
applications or Council’s treatment of them for the purposes of deciding the issues in
my reasons for judgment.
Parties’ Positions
[21] The Petitioner argues that the Motion and Impugned Resolutions should be
quashed and set aside on the grounds that the respondent City made an
unreasonable decision contrary to the principles in Canada (Minister of Citizenship
and Immigration) v. Vavilov, 2019 SCC 65, depriving the Petitioner of procedural
fairness, and was also conducted contrary to s. 131 of the Community Charter,
S.B.C. 2003, c. 26. The petitioner also contends that City Council failed to comply
with its procedure bylaw in its decision-making process.
[22] The City opposes this petition and contends, among other things, that the
Impugned Resolutions should not be set aside since (1) they withstand
reasonableness scrutiny under the Vavilov standard, contending “the reasons for
opposing this development are as transparent, reasonable, and justified, as they
could possibly be”; (2) they were made in the public interest, and there is an ample
basis to justify this decision; (3) they were not adopted in contravention of any
municipal legislation or other legal requirements; (4) they were not passed contrary
to the duty of fairness; and (5) the procedure bylaw is not binding on it.

Issues
[23] I address these three issues in my reasons disposing of this petition:
1. Is Council’s decision to not apply s. 43(1)(a) of the Procedure Bylaw

reviewable?
2. If so, was the decision unreasonable?
3. If so, should other grounds of review advanced by the petitioner be

decided, and what is the appropriate remedy?
Discussion
[24] I find that in adopting the Impugned Resolutions, Council unreasonably

decided to not follow a provision of the City’s procedure bylaw (s. 43(1)(a)) which
would have informed Council of prior staff actions relating to the Proposed
Development before making the rescission decision. In the manner it proceeded,
Council was not so informed of prior staff actions as the City’s procedure bylaw
requires and its decision to depart from that aspect of the procedural bylaw was not
reasonable.
[25] Accordingly, I find that the Impugned Resolutions should be set aside for this
reason, and the November 14, 2022 Motion to rescind third reading of the bylaws
related to development Application 7920-0224-00 (and file the bylaws and close the
application) be remitted back to Council for reconsideration.
Council’s Decision to Not Apply the Procedure Bylaw is Reviewable
[26] The City has the statutory obligation to “by bylaw, establish the general
procedures to be followed by council and council committees in conducting their
business”: Community Charter, s. 124(1).

[27] Pursuant to s. 124, the City has adopted Council Procedure Bylaw, 2004, No.
15300 (the “Procedure Bylaw”), which establishes the general procedures to be
followed by Council in conducting its business.
[28] Section 43(1)(a) of the Procedure Bylaw specifically provides that if a

previously adopted resolution or bylaw is brought back for Council to reconsider,
rescind, or amend, consideration must be given to any actions taken by City staff
with respect to the matter being brought back:
43. (1) A resolution or by-law which was adopted may be brought back before
Council by a motion to reconsider, rescind or amend something previously
adopted, provided:
(a) Council has given due consideration to any actions taken by an
officer, employee, or agent of the City; and
(b) the resolution or by-law has not had the approval of the electors or
the assent of the electors.
[Emphasis added.]
[29] Counsel for the City submitted that one possible reading of s. 43(1)(a)
(though not an interpretation the City strongly advanced) is that it purports to
impermissibly fetter Council’s discretion as it pertains to the considerations it must
take into account in its deliberations on a motion to reconsider, rescind, or amend. It
referred to Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64 at para.
18. However, I do not read s. 43(1)(a) as having such a substantive connotation or
effect.
[30] Instead, I read s. 43(1)(a) as simply being a procedural provision – an

informational provision requiring Council to have before it for review relevant
information about what steps City staff have taken relevant to the municipal
resolution or bylaw which Council is reconsidering or considering to rescind or
amend. Such information about staff actions may also indirectly shed light on what
steps, if any, third parties have taken in reliance on a resolution or bylaw which
Council proposes to rescind or amend, so that Council is apprised of the potential
implications of its actions should it choose to rescind something it had previously

adopted. (Section 43(1)(a) would also apply in the event the Motion were
characterized as to “reconsider” as the petitioners contend, a point on which it is
unnecessary for me to make a decision: characterized as either a motion to rescind,
or to reconsider, s. 43(1)(a) applied.)
[31] The record before me indicates that Council did not have any such s. 43(1)(a)
information at the November 28, 2022 meeting: no report with information about
prior staff actions in respect of the Petitioner’s Proposed Development was
submitted to Council at this November 28, 2022 meeting.
[32] Therefore, in adopting the Impugned Resolutions, Council implicitly departed

from, and decided to not comply with, s. 43(1)(a) of the Procedure Bylaw.
[33] In short, I find that Council does have the power, in its discretion, to decide to
not follow s. 43(1)(a) of the Procedure Bylaw in a particular instance. However, I also
find that doing so is itself a statutory decision, subject to reasonableness review
under Vavilov.
[34] The City contends that Council’s decision to waive the application of the
Procedure Bylaw to its consideration of the Motion is effectively not reviewable since
“municipal proceedings cannot be impeached for failure to comply with an internal
procedure by-law.” In this regard, the City relied on Virdis v. North Vancouver (City),
2009 BCSC 1118, aff’d 2010 BCCA 222; 3L Developments Inc. v. Comox Valley
Regional District, 2016 BCCA 148; and Hidber, Koopman, and Munroe v. Regional
District of Bulkley-Nechako, 2006 BCSC 789 [Hidber]; and s.27(4) of the
Interpretation Act, R.S.B.C. 1996, s. 238. The City contends that Council is the
master of its own procedure and that such procedural bylaws are not binding on
Council, and that non-compliance with the Procedure Bylaw does not invalidate the
proceeding.
[35] I disagree. In Virdis v. North Vancouver (City), 2010 BCCA 222, aff’g 2009
BCSC 1118, relied on by the City, the Court of Appeal quoted with approval the
following passage from Westcliff Management Ltd. v. Fredericton (City), 118 D.L.R.
(3d) 101, 1980 CanLII 2645 (N.B.C.A) (which, in turn, quoted a passage from Ian

Rogers, The Law of Canadian Municipal Corporations, loose-leaf, 2d ed., vol. 1
(Toronto: Carswell, 1971)):
§. 48.22 Irregularity
The procedure adopted by a council in passing by-laws or in transacting

any other business within its jurisdiction, in the absence of express statutory
requirements, is a matter wholly of domestic concern and internal
regulation. The courts will accordingly not give effect to objections based
upon the failure of a council to observe its established procedure, unless
there is clear evidence of bad faith or fraudulent intent. The presiding officer
is the judge of the propriety of the proceedings, subject to the appellate
jurisdiction of the whole council. With the concurrence of the majority of
those present at the meeting, the rules may at any time be waived or
suspended.
[Emphasis added.]
[36] Therefore, Virdis stands for the proposition that a stance of judicial non-
intervention on matters of council procedure exists, but such non-interventionism is
subject to any “express statutory requirements”; see also 3L Developments Inc. at
para. 42. (Hidber, also relied by the City, pre-dates Virdis and 3L Developments Inc.,
and, in my view, the subsequent Court of Appeal cases articulate the applicable
legal principles on this point.)
[37] Here, there does exist a relevant statutory procedural requirement, being the
Procedure Bylaw. Under the Interpretation Act, R.S.B.C. 1996, s. 238, a bylaw, such
as the Procedure Bylaw, constitutes an “enactment”: s. 1, “enactment.” A
“regulation” is defined in the Interpretation Act to include a bylaw; and an
“enactment” includes a “regulation”: s. 1, “enactment,” “regulation.” The Procedure
Bylaw is therefore not only an “express statutory requirement” within the meaning of
the case law but is also a “statutory obligation”: Virdis at para. 36; 3L Developments
Inc. at para. 42.
[38] I find that Virdis and 3L Developments Inc. do not preclude a Vavilov
reasonableness review of a decision to not apply s. 43(1)(a) of the Procedure Bylaw
which is an express statutory procedural requirement. Nor does s. 27(4) of the
Interpretation Act.

[39] In summary, Council’s decision to not apply s. 43(1)(a) of the Procedure
Bylaw constitutes a statutory decision to not follow an express statutory procedural
requirement and is subject to reasonableness review. The application of the
reasonableness analysis will depend on the particular circumstances in which
Council departs from s. 43(1)(a), including the potential impact (if any) on the
decision proposed by Council to reconsider, rescind or amend.
Council’s Decision to Not Apply s. 43(1)(a) of the Procedure Bylaw was

Unreasonable
[40] Where a municipal decision has been made without formal reasons, the court
must determine if reasons can be discerned and, if so, conduct a reasonableness
review on the basis of those reasons. Judicial review on a reasonableness standard
“requires a ‘sensitive and respectful, but robust evaluation’ of the reasons provided”
Vavilov at paras. 12–13; Mason v. Canada (Citizenship and Immigration), 2023 SCC
21 at paras. 8, 63. I recently summarized a framework for the judicial review of
municipal decisions in Pinnacle Care Group Ltd. v White Rock (City), 2022 BCSC
2272 at para. 37:
[37] From these governing cases, I take the following principles to be

applicable on judicial review of a municipal decision where no formal reasons
are issued:
1. Where the Reasons for the Municipal Decision Can be Discerned. The
reviewing court determines if the reasons can be inferred from the record
before the decision maker or larger context: 1120732 [B.C. Ltd. v. Whistler
(Resort Municipality), 2020 BCCA 101] at paras. 41–42, 49. If it can, the court
conducts the reasonableness review on the basis of those
reasons: Vavilov at para. 137; see e.g. Catalyst; Wilson v. Cowichan Valley
(Regional District), 2021 BCSC 1735 at paras. 51–54.
2. Where the Reasons for Municipal Decision Cannot be Discerned from
the record or larger context, the court determines whether that provision
could “reasonably be interpreted in [the decision maker’s] way” (English [v.
Richmond (City), 2021 BCCA 442] at para. 58), or “whether there are any
reasonable interpretations … that would have authorized” the municipal act
(1120732 at para. 84), by “examin[ing] the decision in light of the relevant

constraints on the decision maker” (1120732 at para. 51; English at para. 66).
A reviewing court does so with an eye to assessing whether the outcome is
reasonable in light of the relevant constellation of law and facts: Vavilov at
para. 138; 1120732 at para. 84.

[41] In this case, at the November 28, 2022 Council meeting, Council members
discussed not only the merit of the Proposed Development but also matters of
process. For example, after the Motion was initially brought forward on November
28, 2022, one council member spoke and said, in part:
… why are we doing this? There was no presentation. There was no

feedback. I mean there’s got to be something I’m missing here, that, that
some maybe the other Councillors or maybe the Mayor know that I don’t? So
I don’t know why we are doing this?
[Emphasis added.]
[42] The Mayor then stated, among other things:
… I also want to just acknowledge that staff on the original application,

recommended against this, and so I, I think this was unfortunately … a
rushed application on August 8th which, was a bit of a surprise meeting as it
was. So with that I certainly won’t be supporting it …
[Emphasis added.]
[43] The City manager then spoke and advised that “we’ll have to report back on
what the actual vote was on the refer back, or sorry the stage one report I should
say.”
[44] The same Council member spoke again and raised the issue of fairness to
the developers, and there was then no further discussion. No other Council
members disagreed with proceeding to vote on the Motion. Following this Council
member’s further remarks, the Mayor called the question.
[45] There was no reference in the debate to the fact that the petitioners had been
issued a PLA by the City on October 7, 2022, nor to the subsequent October 19,
2022 letter from the City. There was a brief reference by a Council member to
“whatever they [the petitioner developer] have been doing from last two years”, but
no details of the history of the application and staff interactions with the petitioner.
[46] On the record before me, no report from City staff about prior staff actions or
any other information within the scope of s. 43(1)(a) of the Procedure Bylaw was

submitted to Council before it voted on the Motion. While the October 7, 2022 and
October 19, 2022 letters do not therefore by definition form part of the record which
was before Council (Pinnacle Care Group Ltd. at paras. 40-46), I consider it
appropriate on this judicial review to consider their absence for the purposes of
determining if Council’s procedure complied with s. 43(1)(a) of the Procedure Bylaw
and whether a decision to not comply with it was reasonable (para. 47).
[47] The Impugned Resolutions were adopted by majority by a vote of six to two.
[48] Compliance with s. 43(1)(a) of the Procedure Bylaw was not directly raised,
nor was there any discussion by Council about whether to comply with s. 43(1)(a) or
not. However, focusing on the portions relating to procedure in the transcript of the
Council meeting in issue, it is possible that the reason given for proceeding in the
manner Council did, contrary to s. 43(1)(a), was because a previous application
about the Proposed Development had been “rushed.”
[49] To the extent that this may have constituted the reason for the decision to
proceed in the manner that Council did, it was an unreasonable basis to not comply
with s. 43(1)(a) of the Procedure Bylaw: Pinnacle Care Group Ltd. at para. 37. That
a prior decision in the matter may have been rushed is not a justifiable reason to
depart from a salutary statutory procedural requirement designed to provide
information to Council relevant to whether it should rescind the prior decision before
its rescission decision is made: Vavilov at paras. 112, 131.
[50] If, however, that was not the reason for departing from s. 43(1)(a), and no
reason for departing from s. 43(1)(a) can be discerned from the record, I cannot in
any event discern any reasonable basis for Council to not follow s. 43(1)(a) of the
Procedure Bylaw in the circumstances: Pinnacle Care Group Ltd. at para. 37. I find
that it was unreasonable for Council to proceed without information about what City
staff had done in respect of the resolutions proposed to be rescinded, so that
Council members were informed about such relevant matters before they made their
decision. Council lacked that information, which s. 43(1)(a) of the Procedure Bylaw

statutorily required Council to have.
[51] When assessing if a decision is reasonable under Vavilov, a court must

consider “whether it is justified in relation to the relevant factual and legal constraints
that bear on the decision”: Vavilov at para. 99; see also Mason at paras. 9–11, 72.
One of the statutory legal constraints on Council was s. 124 of the Community
Charter and s. 43(1)(a) of the Procedure Bylaw. In addition, a “decision will be
unreasonable if the reasons fail to meet the ‘justificatory burden’ for departing from
‘longstanding practices or established internal authority’”: Mason at para. 75.
[52] The impact of the Impugned Resolutions must also be considered under a
reasonableness review: Mason at paras. 66, 76, 81. The principle that affected
parties “are entitled to greater procedural protection when the decision in question
involves the potential for significant personal impact or harm” has “implications for
how a court conducts reasonableness review”: Vavilov at para. 133. Specifically,
… Central to the necessity of adequate justification is the perspective of the

individual or party over whom authority is being exercised. Where the impact
of a decision on an individual’s rights and interests is severe, the reasons
provided to that individual must reflect the stakes.
Vavilov at para. 133.
[53] Council’s rescission decision was significant to the Petitioner because it

brought the Proposed Development to an end when the Petitioner had already taken
steps to further the Proposed Development.
[54] In summary, I find that the reasons given by Council for its implicit decision to
depart from the Procedure Bylaw was not “justified [and] intelligible” in light of the
legal constraints that bear on the decision and therefore unreasonable: Vavilov at
paras. 95, 99, 105; or put another way, the reasons did not justify Council’s
departure from “established internal authority” under s. 43(1)(a): Mason at para 75.
Alternatively, if no reasons for departing from s. 43(1)(a) can be discerned from the
record, I find the implicit decision to not apply s. 43(1)(a) was in any event
unreasonable.

[55] I add that the Procedure Bylaw has many facets, other than Bringing Back
Motions Before Council (Part 11). It also deals with a variety of other subject
matters, such as:
 Council Meetings (Part 2);
 Council Meeting Agendas (Part 3);
 Designation of a Member to Act in Place of Mayor (Part 4);
 Opening of Council Proceedings (Part 5);
 Minutes of Council, Committees, Boards and Commissions (Part 6);
 Rules of Conduct in Council Meetings (Part 7);
 Rules of Debate in Council Meeting (Part 8);
 Motions (Part 9);
 Voting on a Motion (Part 10);
 Recesses and Adjournment (Part 12);
 Delegations to Council (Part 13);
 By-laws and By-law Readings (Part 14); and
 Committees (Part 15).
[56] I have made my decision in this petition proceeding in the context of

s. 43(1)(a) of the Procedure Bylaw and the specific circumstances of the Petitioner
and the nature of the decision at issue, including the impact of the Impugned
Resolutions with respect to the Proposed Development. Specifically, Council made a
decision to rescind previous decisions with respect to a development proposal,
deviating from the s. 43(1)(a) procedure, and made a decision which had an adverse

impact on the Petitioner’s property development and interests.
[57] However, I make no comment on any other aspects of the Procedure Bylaw,
and its application in other circumstances which are not before me. In addition,
nothing in my Reasons should be taken to express any view on a different factual
circumstance, where Council may choose to depart from other aspects of the
Procedure Bylaw apart from s. 43(1)(a).
Remedy
[58] Remitting the matter back to the decision-maker is generally the appropriate
remedy after finding a statutory decision to be unreasonable:
Giving effect to these principles in the remedial context means that where a
decision reviewed by applying the reasonableness standard cannot be
upheld, it will most often be appropriate to remit the matter to the decision
maker to have it reconsider the decision, this time with the benefit of the
court’s reasons. In reconsidering its decision, the decision maker may arrive
at the same, or a different, outcome: see Delta Air Lines, at paras. 30-31.
Vavilov at para. 141.
[59] I find that the Impugned Resolutions must be quashed and set aside, and the
Motion to rescind remitted back to Council in accordance with these Reasons under
s. 5 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.
[60] Disposing of the petition in this way makes it unnecessary for me to address
the other grounds of review advanced by the Petitioner, including a challenge to the
substantive reasonableness (or the merits) of the decision to rescind the resolutions
as to the basis for opposing the Proposed Development; whether it was legally
permissible for Council to rescind third reading; whether the City was obligated to
proceed with a new third reading; whether it failed to comply with other aspects of
the Procedure Bylaw; and alleged breaches of procedural fairness.
[61] The City also submits that the Court should decide the procedural fairness
issue even if the Impugned Resolutions were set aside on other grounds. The City
submitted that there was no breach of the duty of procedural fairness and that, in
any event, the Petitioner failed to raise this issue in a timely manner.

[62] I was not referred to any case on point on the precise issue of the existence
and content of the duty of procedural fairness on a motion to rescind (or reconsider)
in these factual circumstances. Having set aside the Impugned Resolutions on
another ground, it is unnecessary to, and I decline, to decide the procedural fairness
issue on this petition.
[63] Nor do I make any comment on the substantive reasonableness of Council’s

decision to rescind the resolutions. At the petition hearing the City opposed the
Petitioner’s challenge to the substantive reasonableness of Council’s decision to
rescind the resolutions. In these Reasons, I do not address that issue or the
Petitioner’s arguments about whether the City made an unlawful decision to
reconsider, contrary to s. 43(2) of the Procedure Bylaw relating to reconsiderations,
and s. 131 of the Community Charter.
[64] In my view, Council’s unreasonable decision to not comply with s. 43(1)(a) of

the Procedure Bylaw is a threshold finding which, on its own, gives rise to a
reviewable error with respect to the Impugned Resolutions, and justifies the
Impugned Resolutions being quashed and the Motion remitted back to Council for
reconsideration.
[65] Finally, the Petitioner submits that if I were to quash the Impugned
Resolutions, I should not remit the Motion back to Council for reconsideration, but
instead quash the Impugned Resolutions only so as to be left with the third reading
decisions.
[66] I decline to do so. Under s. 5(1) of the Judicial Review Procedure Act, the
court may quash a decision and,
may direct the tribunal whose act or omission is the subject matter of the
application to reconsider and determine, either generally or in respect of a
specified matter, the whole or any part of a matter to which the application

relates.
[Emphasis added.]
Here, the “matter” to which the petition for judicial review relates is the Motion that
was decided by Council on November 28, 2022 which gave rise to the Impugned
Resolutions.
[67] Therefore, the appropriate disposition is to remit the Motion to rescind relating
to the Petitioner’s Proposed Development (and that the bylaws be filed and the
application be closed) back to Council for reconsideration in light of these Reasons.
[68] I add that in its relief sought, the Petitioner also sought, among other things,
an order quashing the Motion itself. I find that there is no basis to quash the Motion
itself and decline to do so.
Orders
[69] For these reasons, I make the following orders:
1. Order that the decisions made by the City of Surrey on November 28, 2022
to adopt the Impugned Resolutions, rescinding third reading of bylaws
related to the Petitioner’s development application no. 7920-0224-00, filing
the applicable bylaws, and closing the Petitioner’s development application,
be quashed; and
2. Order and direct that the Notice of Motion to rescind third reading of the
bylaws related to development application no. 7920-0224-00 and that the
bylaws be filed and the application be closed, be remitted to Council for
reconsideration in accordance with these Reasons pursuant to s. 5 of the
Judicial Review Procedure Act.
[70] If the parties cannot agree on costs and wish to make submissions on costs,
they may do so in writing, with the Petitioner providing submissions of no more than
five pages within ten days, and the respondent providing responsive submissions of
no more than five pages within ten days thereafter. The Petitioner shall have five
days to provide a written reply, if any, of no more than three pages.

“Stephens J.”

2024 BCSC 207

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2024 BCSC 207

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Fergus Creek Homes Ltd. v. Surrey (City),

2024 BCSC 207 (CanLII)

The City of Surrey

Before: The Honourable Justice Stephens

Reasons for Judgment

Counsel for the Petitioner: N. Baker

Counsel for the Respondent: P. Hildebrand

Place and Date of Hearing: Vancouver, B.C.

2024 BCSC 207 (CanLII)

2024 BCSC 207 (CanLII)

[2] The Petitioner is the registered owner of a 10.4-hectare property consisting of

[3] In or about September 2020, the Petitioner submitted a development proposal

[4] In or about November 2020, Council voted unanimously to refer Application

(a) supported the issuance of development variance permit No. 7920-0224-

2024 BCSC 207 (CanLII)

2024 BCSC 207 (CanLII)

[16] Council then proceeded by a majority to pass five additional related

(a) rescinding third reading of Bylaw No. 20729, granted by Resolution

(Resolution R22-2223 to Resolution R22-2228 are collectively, the “Impugned

2024 BCSC 207 (CanLII)

2024 BCSC 207 (CanLII)

[23] I address these three issues in my reasons disposing of this petition:

1. Is Council’s decision to not apply s. 43(1)(a) of the Procedure Bylaw

2. If so, was the decision unreasonable?

3. If so, should other grounds of review advanced by the petitioner be

[24] I find that in adopting the Impugned Resolutions, Council unreasonably

Council’s Decision to Not Apply the Procedure Bylaw is Reviewable

2024 BCSC 207 (CanLII)

[28] Section 43(1)(a) of the Procedure Bylaw specifically provides that if a

[30] Instead, I read s. 43(1)(a) as simply being a procedural provision – an

2024 BCSC 207 (CanLII)

[32] Therefore, in adopting the Impugned Resolutions, Council implicitly departed

2024 BCSC 207 (CanLII)

The procedure adopted by a council in passing by-laws or in transacting

2024 BCSC 207 (CanLII)

Council’s Decision to Not Apply s. 43(1)(a) of the Procedure Bylaw was

[37] From these governing cases, I take the following principles to be

(1120732 at para. 84), by “examin[ing] the decision in light of the relevant

2024 BCSC 207 (CanLII)

… why are we doing this? There was no presentation. There was no

[42] The Mayor then stated, among other things:

… I also want to just acknowledge that staff on the original application,

2024 BCSC 207 (CanLII)

2024 BCSC 207 (CanLII)

[51] When assessing if a decision is reasonable under Vavilov, a court must

… Central to the necessity of adequate justification is the perspective of the

Vavilov at para. 133.

[53] Council’s rescission decision was significant to the Petitioner because it

2024 BCSC 207 (CanLII)

 Council Meetings (Part 2);

 Council Meeting Agendas (Part 3);

 Designation of a Member to Act in Place of Mayor (Part 4);

 Opening of Council Proceedings (Part 5);

 Minutes of Council, Committees, Boards and Commissions (Part 6);

 Rules of Conduct in Council Meetings (Part 7);

 Rules of Debate in Council Meeting (Part 8);

 Motions (Part 9);

 Voting on a Motion (Part 10);

 Recesses and Adjournment (Part 12);

 Delegations to Council (Part 13);

 By-laws and By-law Readings (Part 14); and