Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In the 1980's the Province of British Columbia decided to redevelop lands it owned in Victoria's Inner Harbour known as the Songhees lands. The British Columbia Enterprise Corporation ("BCEC") was established as a Provincial Crown Corporation and control over the lands was shifted from the Province to BCEC. BCEC and the Respondent entered into a comprehensive agreement (the "Master Agreement") whereby the BCEC would develop part of the lands in a Phase I of development, and sell approximately 22 acres of the land to a private developer who would continue the development of the lands into a Phase II. The Respondent's City Council approved the Master Agreement and it was registered as a restrictive covenant against the lands.

The Appellant negotiated a purchase agreement with BCEC to purchase the Phase II lands to develop a commercial and residential development, which would include the construction of three-storey structures on platforms on two proposed water lots. When the Appellant turned to the development of the water lots, the public began to lobby against changing the tranquillity of the waterfront. In 1993, the Respondent's City Council voted to rezone the water lots to prevent residential development and limit the buildings to one storey in height, to strike a balance appropriate to the values of the 1993 community. By the time the down-zoning had occurred, the Appellant had completed works and improvements required of it under the Master Agreement, which totalled more than what was statutorily required for the amount of development now lawfully possible.

The Appellant commenced an action against the Respondent alleging breach of contract and claiming restitution for unjust enrichment, and a "taking" by way of the bylaws. The Supreme Court of British Columbia found that the Respondent had broken an implied promise in the Master Agreement not to change the zoning of the Phase II lands for a reasonable time. The other remedies requested were not addressed. The British Columbia Court of Appeal subsequently overturned that decision, finding that the alleged term could not be implied in the circumstances and that it would likely be ultra vires as a city did not have the power to agree to an implied term that would bind future councils. An appeal to the Supreme Court of Canada was dismissed in 2000. The matter was sent back to the Supreme Court of British Columbia to deal with the issues of unjust enrichment and the "taking". In a separate hearing on a preliminary issue, Wilson J. found that the Appellant's claim was not statute barred by reason of s. 972 of the Municipal Act (now s. 914 of the Local Government Act, R.S.B.C. 1996, c. 323). Wilson J. later gave judgment in favour of the Appellant and ordered that the Respondent pay one million and eighty dollars to the Appellant as restitution for the unjust enrichment. The Court of Appeal of British Columbia reversed that decision, finding that there had been no unjust enrichment. The appeal was allowed and the Appellant's action dismissed.