Canada: Don’t Waste Your Breath: The Requirements Of Public Hearing Notices

Last Updated: January 17 2015
Article by Kathleen Higgins and Tim Truong

Courts generally give great deference to the democratic mandate of local governments. Accordingly, municipal bylaws are often challenged for their failure to comply with procedural requirements rather than the reasonableness of their content. One key procedural step is the need to hold a public hearing in advance of a zoning bylaw and to publish a notice of the hearing, which sets out the purposes of the proposed bylaw.

Section 892 of the Local Government Act establishes the requirements for the notice of a public hearing on a proposed zoning bylaw. Generally, the notice must set out the time and place of the public hearing, the lands subject to the proposed bylaws, where the bylaws may be inspected, and "in general terms, the purpose of the bylaw".

In the recent decision of Outdoor Recreation Council of British Columbia v. Chilliwack (City), 2014 BCSC 2259 ("Outdoor Recreation") the Court summarized the law regarding how extensive the description of a bylaw's purpose must be. The decision also illustrates that the purpose of a proposed bylaw may be sufficiently described, even though the words are capable of multiple interpretations.

In Outdoor Recreation, a local citizens group argued that the notice of the public hearing was deficient as it only described the proposed bylaw as changing a parcel's zoning from Heavy Industrial to Special Industrial "to facilitate the construction of a waste recycling and transfer facility". The group objected to the notice because it did not specify that the rezoning would allow for the handling of hazardous waste within the facility.

The Court stated that in order to be valid, a notice must inform citizens of the intent of the bylaw and allow them to make a decision about whether their interests would be affected and whether they should attend the public hearing to obtain further information. The Court went on to review some principles expressed in previous cases with respect to whether a notice is valid as follows:

  • the focus of the analysis is on the "average citizen";
  • more detail may be required if the change is complex and elaborate rather than singular and discrete;
  • the analysis can consider whether the rezoning is to an established classification rather than a newly created zone; and
  • more detail may be required where the change relates to a particular parcel of land as compared to where a change relates to many parcels.

Turning to the notice in question, the Court found that although the term "hazardous waste" was not used, the word "waste" was broad enough to encompass a wide variety of subjects including hazardous waste. The Court further held that the word "waste" was not misleading as it did not attempt to hide the true purpose of the bylaw. In previous cases, a general term was found to be misleading where it failed to accurately describe the nature of the bylaw with respect to the natural concerns of the public. For example, the Court noted that in one case the term "parkade" was found to be misleading as it did not actually convey the purpose of a bylaw that would allow for the construction of a multi-storey building with a large commercial space.  

In this case, however, the Court found that the term "waste" sufficiently described the purpose of the facility. The Court also stated that the negative connotation of the word "waste" would "cause a neighbour or a citizen to pause or question" and was thus sufficient to allow them to consider whether to obtain further information. Lastly, the Court noted that the notice specified that the new zoning would be "Special Industrial". This existing zoning designation already described a variety of uses including the handling of hazardous materials.

Although the sufficiency of each notice must be assessed on its particular facts and surrounding circumstances, the Outdoor Recreation decision provides a useful summary of the relevant case law and illustrates that Courts will accept a general description as long as it does not obscure the actual purpose of the bylaw.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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