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Lawsuit Update: First Appearance Before a Judge is Happening in 2 Weeks

In June 2017, the Sahtlam Neighbourhood Association and six local residents launched a lawsuit against the Vancouver Island Motorsport Circuit (VIMC). The lawsuit claims that VIMC is violating provincial Nuisance Laws by creating excessive noise that is interfering with the peaceful enjoyment of private property. The lawsuit also claims that VIMC is creating this excessive noise by engaging in activities that are in violation of North Cowichan Zoning Bylaws as they pertain to the split-zoned property on which the track sits.*

Lawyers for VIMC want the zoning complaint part of the lawsuit thrown out. This is no surprise, because if the court decides that VIMC is operating in violation of the current zoning, they could be ordered to cease operations until such time as the zoning is changed (a public process that has already begun with the VIMC rezoning application and which is anticipated to take months, if not years, to be processed). So, the lawyers for VIMC have filed an application, arguing "You can't ask a court to decide whether a bylaw is being violated, that is up to local government". And that is generally true. However, there is an exception...

If there is reason to believe that local government is failing to enforce a bylaw because doing so would expose them to negative consequences - a situation referred to in law as acting in "bad faith" - then plaintiffs are allowed to ask the courts to rule on whether the bylaw is being violated.

The plaintiffs take the position that the Municipality of North Cowichan is refusing to acknowledge the bylaw violation because they promised VIMC, as a condition of sale, that the property's zoning was already in place for the proposed activities. If the municipality admits now that someone made a huge mistake when they approved the zoning, they expose themselves to legal action by VIMC.

Accordingly, during the week of August 27, 2018 (we won't know exactly when until right before the hearing), a judge will decide whether there is sufficient evidence to consider the "bad faith" argument. The judge will NOT be deciding whether the Municipality is acting in bad faith - that comes later.

If the judge decides that there is no grounds for a claim of bad faith, they will likely grant VIMC's request and drop the zoning bylaw component from the Nuisance Suit (the Nuisance suit will still proceed, just without that component).

If the judge decides there are sufficient grounds for a claim of bad faith, they will likely allow the lawsuit to proceed "as is". In that case, the court will (at some date to be determined) review the North Cowichan Zoning Bylaw and the activities taking place at VIMC and rule as to whether those activities constitute a permitted use on the split-zoned property. The court may then order VIMC to cease engaging in those activities until such time as the zoning can be changed.

In the meantime, all parties in the suit are gearing up for this first kick at the legal can. The outcome will set the tone for future hearings as this matter slowly moves through the courts. While the Nuisance Suit is scheduled for October 2019, it's likely the permitted use aspect will be heard earlier than that, since such "judicial reviews" do not require much in the way of testimonies and depositions. Stay tuned to our blog and/or our Facebook page for more updates.

* For the full argument behind the permitted use suit, click here.

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