BC Court Of Appeal Confirms Application Of Statutory Interpretation Principles In Reasonableness Review, Including Admissibility Of Extrinsic Evidence

• Published date: 16 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Cannabis & Hemp, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Daniel Siracusa and Victoria Tortora(Summer Student)

In English v Richmond (City), 2021 BCCA 442, Justices Frankel and DeWitt-Van Oosten of the British Columbia Court of Appeal (the "BCCA") considered an appeal from an order requiring the issuance of a building permit for a cannabis greenhouse on land within the provincially regulated Agricultural Land Reserve ("ALR").

English highlights that the principles of statutory interpretation operate within a reasonableness review: although a court conducting a reasonableness review must show deference to administrative decision-makers, it retains a positive obligation to determine whether the decision-maker's interpretation respects the applicable legal constraints.¹

Background

English concerned a dispute between Linda English and the City of Richmond (the "City"). In May 2019, Ms. English applied to the City for a building permit for a greenhouse to grow cannabis within the provincially regulated ALR. The greenhouse was to be built as a soil-based structure. As Ms. English's land was located within the ALR, the Agricultural Land Commission Act, SBC 2002, c. 36 and its regulations applied.²

In September 2019, the City's Director of Building Approvals (the "Inspector") denied the application. He interpreted the regulations as containing a cut-off date after which a local government can prohibit the growing of cannabis in all structures, including those that are soil-based. Ms. English applied for a judicial review of the Inspector's decision.³

Regulatory Framework

Section 8 of the Agricultural Land Reserve Use Regulation, B.C. Reg. 30/2019 (the "2019 Regulation")⁴ outlines instances in which local and First Nations governments may (and may not) prohibit cannabis production in the ALR. Under s. 8(1), the use of agricultural land for producing cannabis may not be prohibited if cannabis is produced (a) outdoors in a field, or (b) inside a structure that, subject to subsection (2), has a "base consisting entirely of soil". Section 8(2) precludes local governments from prohibiting cannabis production in the ALR if grown lawfully in a structure that was either constructed or under construction prior to July 13, 2018 and is unaltered since then.

The Chambers Judge's Decision

At the British Columbia Supreme Court, Mayer J. overturned the Inspector's decision. Although Mayer J. was unable to find the Inspector's interpretation was "obviously wrong",⁵ upon considering the 2019 Regulation's "context and purpose", he found there was a single reasonable interpretation: local governments may not prohibit the production of cannabis inside structures with a base consisting entirely of soil no matter when the structure was built'the July 13, 2018 cut-off date does not apply to soil-based structures.⁶ Accordingly, Mayer J. held the Inspector committed a reviewable error.⁷

To arrive at this conclusion, Mayer J. relied on extrinsic evidence concerning the 2019 Regulation, including emails, government bulletins and other publicly available documents.⁸...