Case information

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The Appellant has run a train line north to south through the Respondent City since 1901. The line comprises approximately 45 acres, varies in width form 50 to 66 feet, and is known as the Arbutus Corridor (the "Lands"). The Appellant no longer needs a rail line running through the west side of Vancouver and no trains run along the line. The Respondent City and the Appellant have had ongoing discussions about the potential use of the Lands, and the Respondent commenced the three year process of decommissioning the Lands in 1999. In September 1999, the Respondent passed the Regional Context Statement Official Development Plan Bylaw ("RCS ODP Bylaw").

The Appellant commenced a petition seeking to set aside the RCS ODP Bylaw, as it was concerned that it would prevent the Appellant from pursuing its plans to develop the Lands. The Appellant and the Respondent then delayed the hearing of the petition while they tried to cooperate in finding a solution. In July 2000, the Respondent passed the Arbutus Corridor Official Development Plan Bylaw ("AC ODP Bylaw"), which applies only to the Lands owned by the Appellant.

The Appellant therefore proceeded with its petitions to set aside the RCS ODP Bylaw and the AC ODP Bylaw, challenging them on the basis that they constituted a taking of the Lands for which compensation was payable. Alternatively, it challenged the bylaws on procedural irregularities relating to the public hearings held, and later argued that it was ultra vires the City Council. The Respondent's position was that it had the power to adopt official development plans and to approve only those developments which were consistent with those plans, under sections 561(1) to 563 of the Vancouver Charter, S.B.C. 1953, c. 55. It also argued that by virtue of s. 569, any lands affected would not be considered to be taken or injuriously affected, and no compensation would be payable.

The Supreme Court of British Columbia held that the RCS ODP Bylaw did not affect the rights of the Appellant, and found that it was valid. However, the chambers judge held that the AC ODP Bylaw had a confiscatory effect, and that it was ultra vires the Respondent's City Council. She therefore found it invalid and set it aside. The Court of Appeal for British Columbia allowed the Respondent's appeal and dismissed a cross-appeal.