The next time Vancouver’s Fire Chief seeks to remove the shelters the occupants of Hastings Block erect, procedural fairness demands that notice of this plan and an opportunity for the occupants to provide submissions to the Fire Chief must be provided

Administrative law – Decisions reviewed – Municipal boards –  Judicial review – Procedural requirements and fairness – Mootness – Standard of review – Reasonableness – Municipalities – By-laws – Fire inspectors – Human rights – Charter of Rights and Freedoms

Vandenberg v. Vancouver (City) Fire and Rescue Services, [2023] B.C.J. No. 2309, 2023 BCSC 2104, British Columbia Supreme Court, November 30, 2023, S. Matthews J. (In Chambers)

The Applicant (Stephanie Vandenberg and Lenora Blue, hereinafter the “Applicant”) brought this petition for judicial review of the Fire Chief’s decision to order the clearing of tarps, tents, and other structures at a growing encampment of homeless people in an area of Vancouver known as the Hastings Block (the “Fire Order”).

The central issues on judicial review were:

(a) whether the Court should hear the petition despite that it was moot (as the Fire Chief had rescinded the Fire Order prior to the hearing) (the “mootness issue”);

(b) whether the Applicant’s section 7 Charter rights were engaged and limited by the Fire Order, (the “Charter rights issue”);

(c) if Charter rights were engaged, whether the Fire Chief’s decision was reasonable (the “reasonableness of the Fire Order issue”); and

(d) whether the decision lacked procedural fairness due to failure to give notice and provide an opportunity for a hearing (the “procedural fairness issue”).

With regard to the mootness issue, the court concluded that it ought to hear the issue despite it being moot. To determine whether the court should hear the matter, the court considered three factors: (1) whether there was an adversarial context in which to decide the matter; (2) judicial economy, and (3) the proper role of the court’s adjudicative role compared to the legislative and executive branches of government.

The court found there was an adversarial context that persisted, which was being fully argued in an adversarial manner. The root of the controversy surrounding the Fire Order was unresolved by its recission and had more widespread applicability than this case. Whether the lack of places for homeless people to shelter engages s. 7 rights that a fire chief must proportionally balance with the fire hazards when considering making an order like the Fire Order made in this case was unresolved. In addition, whether the Fire Chief owes a procedural duty when making an order like the Fire Order and what the scope of that duty entails remained unresolved.

The court found the matter was worth the court’s time because these types of circumstances were likely to recur, and the nature of the Fire Order (i.e., being difficult to get a case before the court before the Fire Order is rescinded) and the circumstances of the homeless people (i.e., disadvantaged) makes it likely that the important issue raised on this petition would be evasive to review. Further, the court found that the case engaged the public interest, so it was, overall, worthwhile.

Finally, the court found that hearing this case carried some risk of intruding into the role of the legislative branch; however, that risk did not outweigh the compelling reasons to hear the petition. Here, it helped that the Fire Order was made by the Fire Chief who is not part of the legislative branch. Thus, the court concluded it ought to hear the matter.

With regard to the Charter rights issue, the court concluded that the Applicant’s s. 7 rights were engaged. It applied the framework set out in Doré v Barreau du Québec, 2012 SCC 12 and Loyola High School v. Quebec (Attorney General), 2015 SCC 12 for reviewing discretionary administrative decisions that engage the Charter, which asks two questions: (1) Does the administrative decision engage the Charter by limiting Charter protections – both rights and values?; and (2) if so, does the decision reflect a proportionate balancing of the Charter protections at play?

In answer to the first question, the court concluded that the Applicant’s s. 7 Charter rights were engaged by the Fire Order. Section 7 protects the right to life, liberty, and security of the person and provides that a person is not deprived of them except in accordance with the principles of fundamental justice. Since the Applicant demonstrated that her overnight shelter was affected by the Fire Order, and there were not sufficient accessible indoor spaces for the persons displaced to shelter, the Applicant’s s. 7 rights were engaged. The court concluded that the Fire Order had the effect of requiring the Applicant to relocate to a place where she would face continual displacement and her security of the person would be negatively affected.

In answer to the second question, the court concluded that the Fire Order did not adequately balance the Charter protections at play, as it was overbroad and arbitrary with regard to the Applicant. The Fire Order fulfilled the Fire Chief’s purpose of removing materials accumulated on the Hastings Block which constitute a fire hazard; however, the Applicant’s material did not constitute a fire hazard, and therefore the order was overbroad and arbitrary as it applied to the Applicant’s tent and its contents.

With regard to the reasonableness of the Fire Order issue, the court concluded that the Fire Order was reasonable. The court found that for the Fire Order to be reasonable the decision resulting in it must engage a proportionate balancing of the statutory mandate underlying it (i.e., safety mandate) and the Charter rights engaged. This requires a robust review of the record and a consideration of whether the proportionate balancing included the decision-maker basing the decision on a nexus between the statutory mandate and the decision, mindful of the impact of the decision on the individual Charter rights. The more severe the impact on the individual Charter rights, the greater the importance that the decision-maker’s reasons reflect those stakes.

The court determined that the record revealed the Fire Chief was appropriately concerned with an imminent fire hazard caused by tarps, tents and structures on Hastings Block blocking fire fighters access to firefighting equipment and to the building and blocking emergency egress from the adjacent buildings. Further, the Fire Chief had properly considered the impact on the occupants of Hastings Block, including trying to get assistance with re-housing them and providing them treatment before the Fire Order. As the Fire Chief took all of this into account in issuing the Fire Order, the court concluded that the Fire Chief reasonably proportionately balanced the Applicant’s s. 7 Charter rights.

With regard to the procedural fairness issue, the court concluded that the Fire Chief did not meet the duty of procedural fairness when issuing the Fire Order. The court found that this was a situation in which notice and an opportunity to make submissions to the Fire Chief would have been feasible in advance of the Fire Order, as such the duty of fairness required notice that an order of the type issued was being contemplated, and an opportunity for the Hastings Block occupants whose shelters would be removed to make submissions on how that would effect them. As the Fire Chief did not provide notice and an opportunity for submissions, the court concluded that the duty of fairness was not met.

This case was digested by Renee Gagnon, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Renee Gagnon at [email protected].

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