Neighbours of a metal recycling operation in Cassidy won’t be able to sue the regional district, but a lawsuit can still proceed against the other defendants, the B.C. Supreme Court has decided.
Schnitzer Steel Canada Ltd., now known as Radius Recycling, is situated in Cassidy on land zoned for recycling, but the company also runs automobile wrecking, which is not permitted under Cowichan Valley Regional District bylaws. In an April 2023 amended notice of civil claim, Dorothy Fahr, Sheldon Scheller and Sarbjit Kallar contended the business establishes “an actionable and ongoing nuisance causing them property damage, emotional upset and pecuniary loss, and that the CVRD, being conscious of this harm, is in breach of a private law duty of care by its failure to enforce bylaws enacted to prevent it.”
“The plaintiffs concede that they cannot use this litigation to compel the CVRD to enforce its bylaws or seek to do so themselves,” noted justice Robin Baird in his Feb. 22 judgment. “Instead, their goal is to pursue compensation from the CVRD for the harm they claim to have suffered as a result of the CVRD’s alleged negligent failure to enforce its bylaws.”
However, the judge said he thought the lawsuit had a low likelihood of success.
According to court documents, the CVRD stated there is precedent that “local government owes no such duty, and that it cannot be sued by individual property owners for losses alleged in relation to bylaw infringements committed by their neighbours.”
Municipal solid waste and recycling site operators are required to own and follow a CVRD facility licence, meant to protect the environment, which Schnitzer has not applied for, said Baird, and he was “reliably informed that, in its present [form], it would not qualify for one.” The CVRD can fine businesses that don’t comply up to $200,000 at its discretion, he said, but there is nothing compelling it to “pursue or enforce such penalties.”
Similar business operations happened at the site before 2006, when the zoning came into effect, noted the judge.
At the heart of the claim, he said, is the CVRD has long known the property use contravened bylaws and that leads to “serious and specific risks” to the litigants.
Baird did not agree with the plaintiffs’ claim that the CVRD has a duty to enforce its bylaws, reiterating the power is “discretionary” and the “plaintiffs have failed to distinguish [the] precedent cases, and … they are dispositive of their claim against the CVRD.” The judge said the plaintiffs’ efforts to pin responsibility on the CVRD “is bound to fail.”
“In my view, it is plain and obvious that the CVRD’s decision to take this approach fits within its broad discretion in matters of bylaw enforcement and land use regulation for which it is immune from private lawsuits, but accountable at the ballot box,” he ruled.
The decision does not affect Fahr, Scheller and Kallar’s claims against the former Schnitzer Steel and Cassidy Sales and Services Ltd., which owns the subject property, the court noted.
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