CASE LAW - Eller v British Columbia (Ministry of Transportation and Infrastructure)

BC Courts Coat of ArmsWilliam Eller represented the Aspen Road Community's interests in this action against the Ministry of Transportation and Infrastructure's (MOTI) proposed changes to the Malahat Highway intersection serving their area. The action was taken because the residents felt that the MOTI failed to incorporate their concerns into the improvement project. An injunction was requested to prevent the changes being made until the safest design for the affected area was determined in full consultation with the residents.

Mr. Justice Grauer examined the project, notice and consultation with the residents and what the law allows the court to consider in these circumstances. He decided that what the Mr. Eller seeks is really a review of the Minister’s substantive conclusion about the design safety of the project, a review which I am not equipped to make, and for which the Judicial Review Procedure Act does not provide.

In summing up, the Justice stated:

I find that the decision challenged by the petitioner did not involve the exercise of a statutory power of decision subject to court review pursuant to the Judicial Review Procedure Act.

But if I am wrong on that, so that this should be viewed as a proper challenge to a statutory power of decision, then assuming without deciding that the interests of the petitioner and the Aspen Road community were sufficient to trigger a duty of fairness, I find that that duty was met. They were given an opportunity to communicate their concerns fully and the Ministry responded to those concerns in a detailed way. Any obligation on the part of the Ministry of procedural fairness was fulfilled. That did not produce a result satisfactory to the petitioner, but it is the fairness of the process that is at issue here, not the substantive quality of the result. Ultimately, the proper design of highways is the business of the Ministry of Transportation, not of this court.

The current configuration of the intersection:


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