Fergus Creek Homes Ltd. Petitioner v. The City of Surrey, 2024 BCSC 207

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fergus Creek Homes Ltd. v. Surrey (City), 2024 BCSC 207 Date: 20240208 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 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 These decisions rescinded resolutions Council had made previously relating to the Petitioner’s development project, including (1) rescinding third reading of bylaws applicable to the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 a pplicable 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; (“Resolution R22-2225”) (

c) rescinding third reading of Bylaw No. 20730, granted by Resolution RES.R22-1623, at the August 8, 2022, Special Council meeting;

(“Resolution R22-2226”) (

d) filing Bylaw No. 20730; (“Resolution R22-2227”) (

e) closing Application No. 7920-0224-00. (“Resolution R22-2228”) (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 itsdeliberations on a motion to reconsider, rescind, or amend. It referred to Pacific National Investments Ltd. v. Victoria (City), 2000 SCC64 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 itfor review relevant information about what steps City staff have taken relevant to the municipal resolution or bylaw which Council isreconsidering or considering to rescind or amend. Such information about staff actions may also indirectly shed light on what steps, ifany, third parties have taken in reliance on a resolution or bylaw which Council proposes to rescind or amend, so that Council is apprisedof the potential implications of its actions should it choose to rescind something it had previously adopted. (Section 43(1)(

a) would alsoapply in the event the Motion were characterized as to “reconsider” as the petitioners contend, a point on which it is unnecessary for meto 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: noreport with information about prior staff actions in respect of the Petitioner’s Proposed Development was submitted to Council at thisNovember 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 aparticular 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 iseffectively 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, 2006BCSC 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 ownprocedure and that such procedural bylaws are not binding on Council, and that non-compliance with the Procedure Bylaw does notinvalidate 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 ofAppeal quoted with approval the following passage from Westcliff Management Ltd. v.

Fredericton (City), 118 D.L.R. (3d) 101, (N.B.C.A) (which, in turn, quoted a passage from Ian Rogers, The Law of Canadian Municipal Corporations, loose-leaf, 2ded., 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 ofexpress statutory requirements, is a matter wholly of domestic concern and internal regulation.

The courts will accordingly not giveeffect to objections based upon the failure of a council to observe its established procedure, unless there is clear evidence of bad faith orfraudulent intent. The presiding officer is the judge of the propriety of the proceedings, subject to the appellate jurisdiction of the wholecouncil.

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, butsuch non-interventionism is subject to any “express statutory requirements”; see also 3L Developments Inc. at para. 42. (Hidber, alsorelied by the City, pre-dates Virdis and 3L Developments Inc., and, in my view, the subsequent Court of Appeal cases articulate theapplicable 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 inthe

Interpretation Act to include a bylaw; and an “enactment” includes a “regulation”: s. 1, “enactment,” “regulation.” The ProcedureBylaw 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 anexpress statutory procedural requirement and is subject to reasonableness review. The application of the reasonableness analysis willdepend on the particular circumstances in which Council departs from s. 43(1)(a), including the potential impact (if any) on the decisionproposed 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 8 th 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.”