Update on CANY v. CoV: Citizens’ Supreme Court challenge of City of Vancouver on “procedural fairness”

508 Helmcken, artist's rendering

508 Helmcken, artist’s rendering

Further to our earlier story (Supreme Court CANY vs CoV. On trial: The integrity of Vancouver City Hall (CityHallWatch, 15-Aug-2014) below, we provide brief coverage of the first three days of the four-day lawsuit. The central theme of the legal case is “procedural fairness.” Justice Mark McEwan is presiding. This case is in the court of law, but will it be a court of justice?

This case has significance far beyond one street corner. Look at the processes this land deal has exposed. Observe how our local government is treating this community. Notice the legal arguments made by the City of Vancouver via its lawyers in Supreme Court. Marvel at the public resources being used by City Hall to defend one single private developer against the public. Is this case the tip of the iceberg? Can other neighbourhoods expect the same treatment?

Recent articles before Day 1:

Yaletown citizens take City of Vancouver to court: CANY alleges city, developer kept details secret (Bob Mackin, Vancouver Courier, 20-Aug-2014)

Yaletown residents sue Vancouver (Brett Mineer, 24 Hours Vancouver, 24-Aug-2014)

DAY 1 (Monday, August 26, 2014)

Vancouver mayor, council accused of ‘sham’ public hearing for Yaletown condo tower (Jeff Lee, Vancouver Sun, 25-Aug-2014). This article is a good summary of Day 1 of the hearing. Nathalie Baker, lawyer for the Community Association of New Yaletown, presented the case. See also CANY’s website for the basic summary of legal claims.


Vancouver right to consider land swap before rezoning for new Yaletown tower: city lawyer (Jeff Lee, Vancouver Sun, 26-Aug-2014). A summary of Day 2.

The judge tried to confirm that the deal was sold as providing 162 units of social housing, but actually there were only 87 units, with no net gain in social housing.” CANY’s lawyer confirmed this, and clarified the point that some of the so-called “social housing” is actually not social housing, as it rents at amounts, per square foot, equal to or in excess of market rents [i.e., above average rents charged for similar housing in the neighbourhood]. (See CANY’s article Social housing rent: How high is too high? for more information on this aspect.)

In the afternoon, the City lawyer began his response, claiming that all the City had to disclose, at a public hearing, is the height and density of the building, and the relevant zoning bylaw, and then listen to whether the public liked the size or not. The judge was quite skeptical that the City didn’t have the duty to keep the public more informed, and allow the public to know the terms of the deal with the developer, and allow the public to be able to comment on the particulars of the deal.

The question of the definition of social housing came up. When questioned by the judge, the City lawyer said that he didn’t really know the “byzantine” definition of social housing that might apply. The judge said he was very sorry to hear this.


Justice Mark McEwan made some comments in regard to Official Development Plans, and the Downtown Official Development Plan (DODP) in particular, of which the development at 508 Helmcken is in direct violation. The DODP sets a density limit of FSR 3 for New Yaletown, and up to FSR 5 for buildings with social housing. Regardless, for all uses, a maximum of FSR 5 is set for corner lots. 508 Helmcken is a corner lot that currently contains social housing. The social housing on the site will be removed as part of the development.

In regard to the approval of 508 Helmcken rezoning to FSR 17, the densest residential building in the City and contrary to the DODP, Judge McEwan sought clarification on many points:

  • “It makes me wonder what development plans are good for.”
  • “What’s the point of development plans if it’s so easy to change them?”
  • “It’s not much of a plan if it can be spot-zoned to nothingness, is it?”
  • “It raises expectations that must make public hearings more awkward.”
  • “What are they good for?”
  • “What force does the DODP have in this case?”
  • “If that’s just pleasant language for ‘things won’t change until they change,’ then what’s the purpose of it?”
  • “What’s the point of calling this thing a plan?”

In the afternoon, Brenhill Developments began its response, focusing on “prejudice,” meaning that because it has spent so much money on development, it would be harmed if the judgment went against the City. Brenhill is arguing that CANY should have sued the City much earlier, before exhausting all attempts to gain a fair hearing at City Council.

One thought on “Update on CANY v. CoV: Citizens’ Supreme Court challenge of City of Vancouver on “procedural fairness”

  1. Reblogged this on North Van City Voices and commented:
    Question from Judge McEwan: “What’s the point of development plans if it’s so easy to change them?” reminiscent of the constant answer from City of North about OCP amendments “it’s a living document”.

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