We have received notice that the City of Vancouver and the developer will appeal the landmark CANY ruling (Community Association of New Yaletown v. Vancouver (City), 2015 BCSC 117). The honourable Judge Mark McEwan forcefully ruled that the public hearing and the development permit processes were flawed in the rezoning and land exchange of 508 Helmcken and 1099 Richards in the downtown mixed-income neighbourhood of New Yaletown.

The ruling is a crucial turning point in public consultation and applies to the interpretation of the law citywide. The ruling fundamentally impacts the way City Hall operates, now and in the future. If the ruling against the City were overturned, it would have severe and negative consequences on public participation across the entire city.

“In appealing, the City is essentially rejecting Justice Mark McEwan’s ruling that City Hall must include the public in a fair and open process,” said Jon Green, President of CANY. “It is shocking to hear that our elected officials would try to reject the legal requirement that they properly inform the public and actually consider public input.” CANY is fighting for a more open and transparent city government to ensure our elected representatives listen to the concerns of residents.

CANY is a grassroots and non-partisan group of volunteers. This appeal is expected to be rushed through by the City and Brenhill so CANY is URGENTLY seeking donations to help fund legal costs. A loss will have significant implications in all Vancouver neighbourhoods. Concerned citizens who wish to donate are asked to visit the CANY website for more information (www.newyaletown.ca) or speak to a CANY member directly (info@newyaletown.ca). CANY is seeking donations of any size and has pledged to donate to social housing initiatives in the New Yaletown neighbourhood in the event funds raised exceed legal costs.

Community Association of New Yaletown
Proud Member of the Coalition of Vancouver Neighbourhoods

Download the CANY media release:

CANY media release, City of Vancouver Appeals Landmark CANY Ruling, Feb 19, 2015

Neighbourhood Association Slams City for Violations of Procedural Fairness and for Secret Contract to Build Massive Tower

BC Supreme Court will be hearing the claims of the Community Association of New Yaletown (CANY) against the City of Vancouver in a four-day hearing, starting Monday, August 25 2014. CANY’s legal petition presents evidence that the City signed a secret Land Exchange Contract with a developer, Brenhill Development Ltd. six months before the public hearing regarding the developments. The outcome of the public hearing was predetermined, in violation of procedural fairness.

CANY is asking the Court to quash the contract and subsequent rezoning in order to prevent the densest residential building in Vancouver from being built right on the corner of Emery Barnes Park downtown. This case is “one of the most troubling of several legal battles launched by citizens against the City of Vancouver,” according to the CityHallWatch website.

“The City has repeatedly violated standards of procedural fairness with respect to these two developments—from failing to disclose the contract and other related documents at the public hearing to withholding documents requested through FOI.” said CANY President Jon Green. “This was a secret, backroom deal. The entire process was extremely unfair to the public.”

CANY has posted the complete amended petition, images of the developments, a summary chronology and additional information at https://newyaletown.ca.

This lawsuit follows fourteen others from community associations, including a petition from the Residents Association Mount Pleasant challenging the Rize development, and another from the False Creek Residents Association before the Court in early September and challenging commercial use of land that is zoned exclusively for park and recreation uses.

Download the CANY media release:
CANY Media Release, CANY v CoV, Aug 21 2014

The City of Vancouver continues to withhold documents, requested in December 2013 under the Freedom of Information act, regarding the land swap, rezoning and redevelopment of 1099 Richards and 508 Helmcken. 144 days later, and one day after the Community Association of New Yaletown filed and served its Judicial Review Application to set aside the rezoning, the City finally released a portion of the requested records. The released records were heavily redacted.

Now, more than 6 months after the original request, the City continues to intentionally withhold over 90% of the documents identified in this request.

FOIPPA requires delivery of records requested under the Act within 30 business days.

“Our request was a simple request for emails,” said Jon Green, President of the Community Association of New Yaletown (CANY). “Anyone can search their email in seconds. The City appears to be intentionally delaying delivery of the records. What is the City hiding?”

The City’s repeated delays and continued refusal to deliver the requested documents are not isolated incidents. The newspaper industry association Newspapers Canada, in its National Freedom of Information Audit, recently gave the City of Vancouver a mark of “C” for extent of information disclosed, and an “F” for speed of responses.

“While I respect the role that confidentiality plays in good government, secrecy undermines it,” said Kerry Corlett, a CANY member. “The City of Vancouver intentionally withheld crucial information from the public, including the January 2013 Land Exchange Contract between the City and Brenhill. This information should have been disclosed at the open houses and public hearings. Based on the City’s continued refusal to provide full disclosure under FOI legislation, one can only draw the conclusion that the City has something to hide.”

Mr. Green’s FOI Request was for:

“All email correspondence between Brian Jackson, Penny Ballem, Mike Magee, Michael Flanigan and Kent Munro with regards to the 508 Helmcken rezoning and/or the 1099 Richards rezoning from August 1, 2012 to December 13, 2013.”

The FOI request relates to the Community Association of New Yaletown’s quest to stop the developments at 508 Helmcken and 1099 Richards. These buildings were approved by the City over the objections of 90% of area residents, in violation of numerous bylaws and the Vancouver Charter, and through a process that repeatedly breached legal standards of procedural fairness, according to the amended legal Petition filed July 3, 2014 in BC Supreme Court.

“We now know that the City entered into a Land Exchange Contract with a developer 6 months before the public hearing,” added CANY President Green. “This contract and other related agreements were kept secret and intentionally withheld from the public at the public hearing. The entire hearing was a sham. The public didn’t stand a chance.  Now the City is withholding documents detailing these secret deals. The City continues to use secrecy as a weapon.”

By email dated March 12, 2013, the City replied regarding the FOI request, advising that it had over “9000 pages of responsive records”. Yet after 3 months of delays past the legal due date, the City released just 85 pages. Of those 85 pages released on May 6, 2014, City officials blanked out a total of roughly 29 pages.

The redacted FOI documents can be viewed at CANY FOI #1 Info Requested 2013-377 – res.pdf.

On May 20, May 23, and again on June 2, 2014, Mr. Green inquired as to why only 1% of the responsive records were delivered. Receiving no reply from the City to any of his emails, on June 3 Mr. Green once again submitted a complaint to the OIPC requesting an inquiry into the City’s refusal to deliver the bulk of the requested documents.

On June 4, Barbara Van Fraassen, the City’s Director of Access to Information finally replied to Mr. Green, falsely claiming that “Your request keyed on/revolved around Michael Flanigan’s correspondence with a set of named parties” and that this reduced the number of respondent pages.

Despite Ms. Van Fraassen’s false claims, the FOI request clearly lists five City employees equally, not just Michael Flanigan, who is no longer employed by the City and now works for BC Housing. Michael Flanigan left the City within a month of the City approving the two developments around which the FOI request centres.

Mr. Green sent numerous emails to the City requesting the missing requested documents, re-documenting the initial request and even quoting Ms. Van Fraassen’s correspondence listing the 5 individuals involved. The City remained silent, and refused to deliver the emails involving Brian Jackson, Penny Balem, Mike Magee and Kent Munro.

Finally on June 27 the City replied, suggesting that since the matter was subject to an inquiry by the OIPC, it did not have to provide documents until the complaint was resolved. Mr. Green immediately replied demanding delivery of the missing records but the City continues to withhold the documents.

The City has not replied since, and continues to be in violation of the Freedom of Information act.

CANY’s legal claims are scheduled for a 4-day hearing commencing on August 25, 2014.  CANY is asking the Court to set aside Council’s decision to rezone 508 Helmcken and to declare the Land Exchange Contract unenforceable.

If built, these developments will prevent the planned expansion of Emery Barnes Park to occupy the full block, as had been previously planned and budgeted.

Hundreds of residents have signed CANY’s Change.org petition online at https://www.change.org/petitions/the-city-of-vancouver-save-emery-barnes-park-andvancouver-s-green-space and are donating towards legal fees and following updates on the case at www.newyaletown.ca.

A detailed chronology follows:

• On December 13, 2013, the FOI request was submitted to the City.
• The City initially set its own due date for delivery on January 30—the maximum allowed by law.
• On February 4, responding to a query about its non-delivery, the City set itself a new due date for delivery on March 17, 2014.
• On March 18, responding to a query about this second non-delivery, the City told Mr. Green that there were over 8,500 respondent documents and that they “expected” to deliver the requested information by April 30, 2014.
• On March 21, Mr. Green submitted a formal Request for Review to the BC Office of the Information and Privacy Commissioner, seeking an inquiry into for the multiple delays.
• On March 31, an OIPC officer told Mr. Green that the City was claiming it would now take an additional 400 business days to deliver the documents. Citing the City’s highly unusual call for significant further delay, the OIPC fast-tracked its inquiry into the matter.
• On May 6, the Community Association of New Yaletown filed its Petition in BC Supreme Court seeking to halt the developments at 508 Helmcken and 1099 Richards, alleging violations of City bylaws, the Vancouver Charter, and violations of procedural fairness.
• Within hours of being served notice of Court action, the City notified Mr. Green that the requested information was suddenly now available. Mr. Green paid for and collected the documents from City Hall the following day—144 days after the initial request and 96 days after the initial due date that the City had set. The documents supplied by the City contained only 85 heavily redacted pages, not the 8500+ pages previously indicated by Ms. Van Fraassen.
• On May 20, May 23, and again on June 2, Mr. Green repeatedly sought an explanation for the non-delivery of roughly 99% of the respondent documents.
• On June 3, 2014, Mr. Green again contacted the OIPC to request a review of the City’s withholding the remaining documents.
• On June 4, the City falsely claimed that the FOI request centred on one individual, Michael Flanigan.
• On June 13, June 20 and again on June 27, Mr. Green documented the full scope of the FOI request, quoting the City’s own correspondence mentioning the 5 individuals involved, and demanding delivery of the missing documents.
• On June 27, the City finally replied, only to ask if the matter was under investigation by the OIPC.
• On June 27, Mr. Green asked again for immediate delivery of the documents.
• No response from the City has been received since June 27.
• On July 3, CANY filed its amended Petition in BC Supreme Court.

Download the CANY media release, July 16, 2014:  CANY Media Release, FOI re Helmcken and Richards, July 16, 2014

The Community Association of New Yaletown (CANY) on July 3 filed an amended petition in BC Supreme Court regarding the land swap and redevelopment of 1099 Richards and 508 Helmcken.

New documents recently obtained by CANY show that the City of Vancouver entered into a Land Exchange Contract with the developer months before the rezoning was publicly considered by Council and did not disclose this at the public hearing—a clear violation of procedural fairness.

The amended petition alleges that the City, in approving development of the 36-storey tower at 508 Helmcken St. and a related building across the street at 1099 Richards St.:

• Withheld crucial information from the public about the planned development, including the January 28, 2013 Land Exchange Contract between the City and the Developer, the January 31, 2013 Lease Surrender Agreement between the City, the Developer and 127 Society and May 15, 2013 Development Agreement between the City, Developer, 127 and BC Housing;
• Fettered its voting discretion contrary to the Vancouver Charter; and
• Repeatedly breached its legal duty to procedural fairness.

“The public hearing process relating to this development was completely flawed and totally unfair. Documents we obtained from the City after filing our original petition in May show that the City had, unbeknownst to the public, already entered into a Land Exchange Contract with the developer, months before the matter was put before Council for approval,” said Jon Green, President of the Community Association of New Yaletown (CANY). “By the time the rezoning was publicly considered by Council, the agreement was a done deal.”

“At the public hearing, I witnessed overwhelming public opposition to the rezoning of the Jubilee House site,” said Alexander Hayne, a neighbourhood resident. “My New Yaletown neighbours were begging the City to reduce the size of the proposed 36-storey condo tower to save the character of Emery Barnes Park and to better fit within our
neighbourhood.”

“I was deeply disappointed when Council voted to approve the project with no changes to building height or density—against the emotional pleas of New Yaletown residents,” continued Hayne. “I invite other concerned Vancouver residents to join me in supporting the CANY lawsuit to hold our government accountable to conduct the rezoning via a fair and transparent process.”

Hundreds of residents have signed CANY’s Change.org petition online at https://www.change.org/petitions/the-city-of-vancouver-save-emery-barnes-park-andvancouver-s-green-space and are donating towards legal fees and following updates on the case at www.newyaletown.ca.

The petition is scheduled for a 3-day hearing commencing on August 18, 2014. CANY is asking the Court to set aside Council’s decision to rezone 508 Helmcken and to declare the Land Exchange Contract unenforceable.

Download the CANY Media Release, July 7 2014:
Community Association Files Amended Court Petition
to Stop Development near Emery Barnes Park