Lawyers for Attorney General David Eby fought community group's bid for standing in Bear Creek Park roadway case

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      A nonprofit society in Surrey and two environmental activists have lost a court fight with the City of Surrey over the city's plan to connect two separated stretches of 84th Avenue through parcels connected to Bear Creek Park.

      That's prompted Surrey mayor Doug McCallum to declare in a news release that construction will begin immediately on an $18-million project linking King George Boulevard to 140th Street.

      McCallum was able to do this in part due to lawyers for Attorney General David Eby, who supplied arguments in court that the City of Surrey adopted.

      The Force of Nature Society and its president, Sebastian Sajda, along with Surrey resident Annie Kaps, filed a judicial review petition in B.C. Supreme Court earlier this year challenging the legality of a council resolution authorizing construction contracts.

      They alleged that council's July 26 decision ran contrary to the Community Charter and was inconsistent with land-use restrictions. In addition, the petitioners alleged that the authorization breached charitable trusts applying to some of the lands where the connector road is to be built.

      In August, the Force of Nature Society and the two other petitioners obtained a court order enjoining construction until the petition was heard in court.

      But on December 30, Justice Sheila Tucker dismissed their petition in part because they did not have "standing" in court under the Judicial Review Procedure Act to challenge the issue with four parcels. That's because no private rights were asserted nor was special harm alleged, and the petitioners weren't granted public-interest standing.

      In addition, Tucker ruled that the petitioners did not have standing to raise the issue of breached charitable trusts in connection with other parcels.

      "Each of the parcels has its own legal status," Tucker wrote in her decision. "Association with Bear Creek Park does not bestow any legal status, although the association could, depending on timing and other factors, amount to a surrounding circumstance in assessing the status of a parcel."

      Lawyers representing Attorney General David Eby argued that he had exclusive authority to enforce charitable trusts and that this was beyond the legal powers of the petitioners.

      Moreover, lawyers acting for Eby opposed granting public-interest standing to the Force of Nature Society, Sajda, and Kaps.

      "The AGBC notes that public interest standing test developed in constitutional challenges is now as outlined at para. 53 of Canada v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 [SWUAV]," Tucker wrote in her ruling. "Under SWUAV, a claimant must establish that: (1) the action raises a serious legal question of importance; (2) a genuine interest in the resolution of the question; and (3) that, in all the circumstances, the proposed proceeding is a reasonable and effective means of bringing the matter before the court."  

      The City of Surrey adopted the attorney general's submissions on the question of the petitioners' standing, according to Tucker's decision.

      "The Roadway is a matter of controversy in Surrey," the judge stated in her ruling. "That said, the petition does not involve the wisdom, necessity or desirability of building the Roadway. The only question posed under petition is a legal one—does the Resolution authorize encroachments that are legally impermissible?"  

      Kaps was one of seven people whom the Safe Surrey Coalition banned earlier this year from appearing at council meetings before this prohibition was lifted in December.