COURT OF APPEAL FOR BRITISH COLUMBIA  
Citation:  
The Redeemed Christian Church of God v.  
New Westminster (City),  
2022 BCCA 224  
Date: 20220624  
Docket: CA47688  
Between:  
The Redeemed Christian Church of God  
City of New Westminster  
Respondent  
(Petitioner)  
And  
Appellant  
(Respondent)  
Before:  
The Honourable Madam Justice Fenlon  
The Honourable Mr. Justice Grauer  
The Honourable Mr. Justice Voith  
On appeal from: An order of the Supreme Court of British Columbia, dated  
July 19, 2021 (The Redeemed Christian Church of God v. New Westminster (City),  
2021 BCSC 1401, New Westminster Docket 209759).  
Counsel for the Appellant:  
A.M. Latimer, Q.C.  
A. Crouse, Articled Student  
Counsel for the Respondent:  
R.S. Wiltshire  
M. Moore  
Counsel for the Attorney General of British  
Columbia:  
J.G. Penner  
R.J. Danay  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, British Columbia  
March 14–15, 2022  
Vancouver, British Columbia  
June 24, 2022  
Written Reasons by:  
The Honourable Mr. Justice Voith  
Concurred in by:  
The Honourable Madam Justice Fenlon  
The Honourable Mr. Justice Grauer  
The Redeemed Christian Church of God v. New Westminster (City)  
Summary:  
Page 2  
The respondent church sought judicial review of the City’s decision to terminate a  
contract with it, and alleged violations of different provisions of the Charter. The  
judge held that the matter was not subject to judicial review. Nevertheless, the judge  
held that s. 24(1) of the Charter and Rules 1-2(4) and (5) authorized an application  
to court for Charter relief by petition. The judge found the City infringed the church’s  
s. 2(b) rights, that the church had standing to bring a s. 2(a) claim and that the s.  
2(a) claim should be converted to an action. The City challenges these orders. Held:  
Appeal allowed. Neither s. 24(1) of the Charter nor Rules 1-2(4) and (5) authorize a  
claim for Charter relief to be brought by petition. A standalone Charter claim must be  
brought as an action, but a judge has significant discretion to convert an improperly  
brought petition to an action under R. 22-7. The judge’s determination on s. 2(b) is  
therefore set aside. The judge also erred in principle in holding that the church had  
standing to bring a s. 2(a) claim. That issue is both novel and complex, and should  
not have been determined separately from the s. 2(a) claim itself.  
Reasons for Judgment of the Honourable Mr. Justice Voith:  
[1]  
The respondent, the Redeemed Christian Church of God, British Columbia,  
also known as Grace Chapel, organized a one-day Christian youth conference. It  
booked a space for the conference at the Anvil Centre, a facility wholly-owned and  
operated by the appellant, the City of New Westminster. The City cancelled the  
booking and its contract with Grace Chapel due to concerns with the content of the  
conference. The respondent filed a petition seeking various forms of Charter and  
other relief. It purported to seek such relief under either s. 2(2)(a) or s. 2(2)(b) of the  
Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA], or under s. 24(1) of  
the Canadian Charter of Rights and Freedoms.  
[2]  
The hearing judge determined that neither s. 2(2)(a) or s. 2(2)(b) of the JRPA  
were engaged. The judge held, however, that s. 24 of the Charter, together with R.  
1-2(4) and (5) of the Supreme Court Civil Rules [Rules] authorized an application to  
court by way of petition where Charter relief was being sought. Though the judge  
made numerous other findings and orders, it is this conclusion that is central to the  
present appeal. For the reasons that follow, I would allow the appeal.  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 3  
Background  
[3]  
Grace Chapel is a multi-ethnic church that meets in downtown New  
Westminster. It does not own any facilities, but rents meeting space in New  
Westminster for its Sunday services, office needs and some of its events. The Anvil  
Centre is an arts, conference and event centre located in New Westminster. Grace  
Chapel had previously rented space at the Anvil Centre from the City. The City is a  
municipal corporation.  
[4]  
Grace Chapel rented a ballroom in the Anvil Centre to host a Christian youth  
conference that was to take place on July 21, 2018. The City received an email  
complaint from a member of the public about the alleged nature of the youth  
conference. The complainant asserted that the content of the upcoming youth  
conference would be “anti-LGBTQ.” This was primarily based on the involvement  
and previously expressed views of one of the conference’s facilitators.  
[5]  
The next day the City cancelled its agreement with Grace Chapel following  
some limited online inquiries and internal discussions. The City communicated its  
decision by way of an email in which it advised that one of the speakers/facilitators  
for the conference “vocally represents views and a perspective that run counter to  
the City of New Westminster.” The email also relied on the booking policy of the  
Anvil Centre which “restrict[ed] or prohibit[ed] user groups if they promote[d] racism,  
hate, violence, censorship, crime or unethical pursuits.”  
[6]  
The administrator for Grace Chapel sent an email to the City requesting an  
opportunity for “due process” and to discuss the matter further. The email  
emphasized that there would be “no hate, racism or violence promoted at [the]  
conference.” The City responded indicating a willingness to meet “to further discuss  
our policy” but it made clear “that this does not change our decision and the event is  
cancelled.”  
[7]  
Counsel for the respondent sent a further letter to the City, with copies going  
to the mayor and city councillors. The letter emphasized the “fundamental freedoms”  
of expression, association, conscience, and religion in the Charter and noted that the  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 4  
Anvil Centre was regularly used for expressive and associative activities. It asserted  
that the City could not “deny use of its facilities in a matter that unjustifiably infringes  
the freedoms protected in section 2 of the Charter.” The City did not respond to the  
letter.  
The Petition  
[8]  
The respondent filed a petition (the “Petition”) on December 28, 2018, in  
which it sought various forms of relief including:  
a) A declaration, pursuant to s. 2(2)(b) of the JRPA and s. 24(1) of the Charter  
that the City’s decision to cancel its contract with the respondent to rent  
space in the Anvil Centre was “procedurally unfair, biased, unreasonable,  
and unjustifiably infringed the freedoms of conscience, religion, thought,  
belief, opinion, expression, and association and [the] right to be free from  
discrimination on the basis of religion as protected by sections 2(a), 2(b),  
2(d) and section 15(1) of the Charter, respectively”; and  
b) An order pursuant to s. 2(2)(a) of the JRPA and s. 24(1) of the Charter  
quashing the City’s decision to cancel its contract with the respondent.  
The Judge’s Reasons  
[9]  
The judge dealt with each of the numerous issues that were raised by the  
parties. Her reasons for judgment are indexed at 2021 BCSC 1401. Central to her  
conclusions, and central to this appeal, was her finding that the issues raised by  
Grace Chapel were not the proper subject of a judicial review under the JRPA. Early  
in her reasons, the judge summarized her conclusions:  
[5]  
For the reasons set out below, I find that this petition is, at its core, a  
contractual dispute over the rental of property that does not fall within the  
ambit of the JRPA. Declaratory relief under s. 2(2)(b) of the JRPA is not  
available because the Decision did not involve the exercise of a statutory  
power. In addition, the City’s decision to terminate the Agreement does not  
have a sufficiently public character to engage s. 2(2)(a) of the JRPA. While  
the Decision was informed by the City’s policies, it was ultimately the exercise  
of a contractual right contained within the Agreement. The Booking Policy did  
not afford the City the capacity to terminate the Agreement; the contract did.  
The proper remedy, in the context of this case, is not by way of judicial  
review.  
The Redeemed Christian Church of God v. New Westminster (City)  
[6] I find that the petitioner’s request for declaratory relief under s. 24(1)  
Page 5  
of the Charter was brought properly by way of petition. I also find that the City  
unjustifiably infringed Grace Chapel’s freedom of expression. I am unable to  
find an infringement of Grace Chapel’s s. 2(d) right to freedom of association.  
Further, I find Grace Chapel’s claim that the City infringed its s. 2(a) Charter  
right involves triable issues that must be determined by way of a civil claim or  
action, and not by petition.  
[10] The judge then addressed the language of each of s. 2(2)(a) and s. 2(2)(b) of  
the JRPA as well as various authorities that pertain to those provisions. The judge  
identified that s. 2(2)(b) of the JRPA requires “the exercise, refusal to exercise, or  
proposed or purported exercise, of a statutory power.” She correctly observed that  
“[u]nless the City was exercising a statutory power, the declaratory relief sought by  
the petitioner under the JRPA is unavailable.” She ultimately concluded:  
[38]  
I agree with the City that s. 2(2)(b) of the JRPA does not apply. The  
City was not exercising a statutory power when it terminated the contract.  
There is no statute or bylaw that compels or enables the City to cancel a  
private contract. While the City’s decision was informed by the Booking Policy  
and its overall vision statement, its ability to terminate the contract flowed  
from its contractual rights, not a statutory power. It was an exercise of a  
contracting party’s common law right to abrogate its contractual obligations,  
and to pay damages if the termination was a repudiatory breach.  
[11] In relation to s. 2(2)(a), and after a thorough review of the parties’ respective  
positions and the authorities they relied on, the judge concluded:  
[75]  
In sum, the administrative law remedies sought under s. 2(2)(a)—  
prohibition and certiorari—are unsuitable in addressing the issue before me.  
This also indicates that this matter is not of a “sufficiently public character”  
such that it should fall within the ambit of s. 2(2)(a).  
…
[77]  
On the whole and in light of the above considerations, I am unable to  
conclude that this matter is of a sufficiently public character such that it falls  
within the ambit of s. 2(2)(a) of the JRPA. Nor does this case involve the  
exercise of a statutory power in accordance with s. 2(2)(b). It follows that no  
duty of procedural fairness was owed in these contractual circumstances: see  
e.g., Air Canada at para. 53, and Dunsmuir at paras. 74, 95 -111. The same  
holds true for Grace Chapel’s allegations of bias by the decision-maker, as  
the Decision itself falls outside the ambit of judicial review.  
[12] Importantly, Grace Chapel has not appealed those aspects of the judge’s  
order that reflect these various determinations.  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 6  
[13] The judge next considered whether, notwithstanding her conclusion that the  
Petition was not suitable for judicial review, she had jurisdiction to grant declaratory  
relief under s. 24(1) of the Charter in circumstances where Grace Chapel had  
initiated the proceeding by way of petition. She concluded that Grace Chapel’s  
request for declaratory relief pursuant to s. 24(1) of the Charter was “properly before  
the Court by way of petition.” Because this conclusion is the primary focus of the  
present appeal, I will return to this aspect of the judge’s reasons in more detail.  
[14] With this conclusion in hand, the judge then turned to each of the Charter  
claims that Grace Chapel advanced. I have briefly addressed these issues in the  
same order as did the judge.  
a)  
Section 2(b), Freedom of Expression  
[15] The judge identified that the City did not challenge Grace Chapel’s standing  
to argue that its right to freedom of expression had been infringed. She considered it  
clear that “the Charter always applies to governmental actors like the City” and she  
observed that “[t]he City itself does not argue that the Anvil Centre (i.e., as a facility)  
is private property.” She described the centre as “a place where renters can  
potentially engage in a broad range of expressive activities.” Finally, she noted that  
the City “rightly acknowledges that Grace Chapel’s freedom of expression has been  
curtailed…”  
[16] The judge found that: i) “[T]he expression contemplated at the Youth  
Conference [fell] within the sphere of protection of s. 2(b) of the Charter”; and  
ii) “[T]here ha[d] been an infringement of the protected right that resulted from the  
impact of the City’s actions. The City cancelled [its agreement with Grace Chapel]  
and prevented Grace Chapel from engaging in expressive activity in a facility it  
owned and operated.”  
[17] The judge then turned to whether the City’s infringement was justified under  
s. 1 of the Charter. She recognized that the case fell “within relatively novel legal  
territory”:  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 7  
[102] In light of the particular facts before me, this case falls within relatively  
novel legal territory. The “Oakes” test governs the s. 1 analysis when dealing  
with a piece of legislation or some other government enactment that infringes  
a Charter right: R. v. Oakes, [1986] 1 S.C.R. 103. In contrast, a judicial review  
of an administrative decision that impacts Charter rights is governed by the  
proportionality framework in Doré v. Barreau du Québec, 2012 SCC 12.  
Neither of these tests readily apply in this case: that is, the Decision of the  
City falls outside of the ambit of the JRPA and, further, there is no impugned  
legislative enactment underpinning the Decision. This is neither a case with  
impugned legislation (i.e., Grace Chapel does not challenge the Booking  
policy) nor a truly administrative decision (i.e., it is not of a sufficiently public  
character and does not involve the exercise of a statutory power).  
[18] The judge sought to navigate the difficulty she faced and she concluded:  
[110] In the instant case, which is neither a challenge to a law of general  
application nor a judicial review of an administrative decision, I am of the view  
that “analytical harmony” can be found by upholding the Charter values at  
play, through applying the criteria of minimal impairment and the  
proportionate balancing of Charter protections, viewed through the lens of  
reasonableness. On the specific facts before me, I find that neither criterion  
has been satisfied; as such, the City’s infringement of Grace Chapel’s  
freedom of expression was unjustified.  
b)  
Section 2(d), Freedom of Association  
[19] The judge observed that a “claimant alleging a s. 2(d) infringement must show  
a substantial interference with their freedom of association rights.” The judge  
concluded that in the circumstances of the case before her, and based on the  
jurisprudence she referred to, she was “not able to conclude that Grace Chapel’s  
freedom of association was unjustifiably or unreasonably infringed.” The respondent  
does not challenge this conclusion.  
c)  
Section 2(a), Freedom of Religion  
[20] Before the judge, the City argued that Grace Chapel, as an unincorporated  
society, did not have standing to assert a s. 2(a) right under the Charter. The judge  
disagreed. The City has appealed that conclusion.  
[21] For various reasons, however, the judge concluded that there was insufficient  
evidence before her to properly address this Charter claim. She said:  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 8  
[143] … This issue requires a trial; it is material and directly informs the  
question of whether this claim falls within the scope of the protection  
subsumed within s. 2(a) of the Charter or whether any infringement could be  
justified. Put differently, I am not satisfied the City’s argument, that the s. 2(a)  
protection does not apply in this case, is an issue that is bound to fail.  
[22] Finally, the judge dismissed Grace Chapel’s claim that the City had breached  
its duty of state neutrality concerning religious matters.  
[23] The judge summarized her various determinations and orders in the following  
terms:  
[147] Grace Chapel’s request for relief under the JRPA is dismissed for the  
reasons set out above.  
[148] Grace Chapel is entitled to a declaration that the City unjustifiably  
infringed its right to freedom of expression under s. 2(b) of the Charter.  
[149] Grace Chapel has standing to seek a declaration that the City  
breached its s. 2(a) Charter right.  
[150] Grace Chapel is at liberty, should it choose, to convert its s. 2(a)  
Charter claim into an action under R. 22-1(7)(d).  
[151] Grace Chapel’s claim that the City breached its duty of state neutrality  
concerning religious matters is dismissed.  
[152] Grace Chapel’s request for a declaration that the City unjustifiably  
breached its s. 2(d) right to freedom of association is dismissed.  
On Appeal  
[24] Several distinct issues arise from this appeal.  
Issue 1: Was it open to Grace Chapel to advance its Charter claims by way of  
petition?  
[25] The City contends that neither the Rules nor s. 24(1) of the Charter  
authorized the judge to grant the declaratory relief Grace Chapel sought. The City is  
joined in this contention by the Attorney General of British Columbia (the “AGBC”),  
who intervened in the appeal to make submissions with respect to two discrete  
issues. The first is whether s. 24(1) of the Charter allows a court to grant declaratory  
relief in petition proceedings when neither R. 2-1(2) nor the JRPA applies.  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 9  
[26] On appeal, Grace Chapel initially sought to shift the focus of this ground of  
appeal. Specifically, it sought to revisit the judge’s decision that the claims advanced  
in the Petition did not fall within the ambit of the JRPA. However, it had not cross  
appealed the judge’s order that ensued from that determination. Thus, as the issue  
is not properly before this Court, we are unable to entertain this submission.  
Alternatively, Grace Chapel relied on the judge’s reasons in relation to this issue  
without making any further submissions in support of those reasons.  
[27] Before the judge, the City had argued that since Charter and contractual relief  
are not enumerated under R. 2-1(2), Grace Chapel’s case had to be brought by way  
of notice of civil claim under R. 2-1(1). The judge disagreed and said:  
[82]  
I cannot accept the City’s procedural argument in light of the relevant  
authorities and the operative wording of the Rules. It is trite law that a  
conventional claim for breach of contract must be brought by way of an  
action. However, as Grace Chapel points out, it does not seek any  
contractual remedies. It advances an independent claim for a declaration  
pursuant to s. 24(1) of the Charter. This does not require a notice of civil  
claim.  
…
[87]  
Section 24(1) permits “[a]nyone whose rights or freedoms, as  
guaranteed by this Charter, have been infringed or denied may apply to a  
court of competent jurisdiction to obtain such remedy as the court considers  
appropriate and just in the circumstances.” Putting aside the issue of standing  
under the Charter, s. 24(1) allows an aggrieved party to make an application  
for relief. This Court is undoubtedly a court of competent jurisdiction for the  
purposes of s. 24(1) of the Charter.  
[88]  
The petitioner’s request for declaratory relief pursuant to s. 24(1) of  
the Charter is, therefore, properly before the Court by way of petition:  
R. 1-2(4), R. 1-2(5), Banks v. Canada (1983), 12 Imm. L.R. (2d) 305 (F.C.);  
MacKenzie v. Canadian Human Rights Com’n (1985), 33 A.C.W.S. (2d) 254  
(F.C.); British Columbia (Milk Marketing Board) v. Saputo Products Canada  
G.P. / Saputo Produits Laitiers Canada S.E.N.C., 2017 BCCA 247 at para. 39  
[Saputo].  
[28] In my view, the judge erred in various respects in arriving at these  
conclusions. The starting point is the Rules. The following Rules are relevant:  
Rule 1-1 — Interpretation…  
(1) In these Supreme Court Civil Rules, unless the context otherwise  
requires:  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 10  
…
“action” means a proceeding started by a notice of civil claim;  
…
“proceeding” means an action, a petition proceeding and a requisition  
proceeding, and includes any other suit, cause, matter, stated case  
under Rule 18-2 or appeal;  
…
Rule 1-2 — Citation and Application  
…
(4) If an enactment, other than these Supreme Court Civil Rules or the  
Supreme Court Family Rules, authorizes an application to the court or  
to a judge, the application must be  
(a) by petition under Rule 16-1 or requisition under Rule 17-1, or  
(b) if the application is for an order other than a final order, by  
application under Part 8,  
whether or not the enactment provides for the mode of application.  
…
(5) Subrule (4) does not apply if a particular mode of application is required  
by an enactment of Canada.  
…
Rule 2-1 — Choosing the Correct Form of Proceeding  
…
(1) Unless an enactment or these Supreme Court Civil Rules otherwise  
provide, every proceeding must be started by the filing of a notice of  
civil claim under Part 3.  
…
(2) To start a proceeding in the following circumstances, a person must file  
a petition or, if Rule 17-1 applies, a requisition:  
…
(b) the proceeding is brought in respect of an application that is  
authorized by an enactment to be made to the court;  
[Emphasis added.]  
[29] Subparagraphs 2-1 (2)(a) and (c)–(h) provide other specific instances of when  
a proceeding is to be commenced by petition. Rule 2-1(1) mandates that every  
proceeding be commenced by way of a notice of civil claim unless an enactment or  
another rule otherwise provides.  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 11  
[30] It is interesting and relevant that the rules of court in Ontario, Prince Edward  
Island and Saskatchewan expressly permit applications for Charter relief to be  
brought by application (or the provincial equivalent): Rules of Civil Procedure,  
R.R.O. 1990, Reg. 194, R. 14.05(3)(g.1) [Ontario Rules]; PEI, Rules of Civil  
Procedure, R. 14.05(3)(h) [PEI Rules]; Queen’s Bench Rules, (2013) Sask. Gaz. I,  
2684, R. 3-49(1)(h) [Saskatchewan Rules]. For example, the Ontario and Prince  
Edward Island rules of court state:  
14.05  
…
(3)  
A proceeding may be brought by application where these rules  
authorize the commencement of a proceeding by application or where the  
relief claimed is,  
…
for a remedy under the Canadian Charter of Rights and Freedoms;  
[31] Notwithstanding the availability of these rules, proceedings can still be  
converted to an action where there are material facts in dispute, where there are  
complex factual questions or where issues of credibility exist: Karen Horsman and  
Gareth Morley, Government Liability Law and Practice, 5th ed. (Toronto: Thomson  
Reuters, 2017) (loose-leaf updated 2022), ch. 12:16, and the cases noted therein,  
including Energy Probe v. Canada (Attorney General) (1989), 68 O.R. (2d) 449 at  
470, 1989 258 (C.A.), leave to appeal to SCC ref’d, 21496 (12 October  
1989); Assoc. Francaise des Conseils Scolaires de L’Ontario v. Ontario (1988), 55  
DLR (4th) 394 at 398, 1988 4759 (Ont. C.A.).  
[32] Furthermore, the provincial rules of court in all provinces other than British  
Columbia expressly provide that an application or petition can be brought to  
commence proceedings where there are no substantial facts in dispute; Ontario  
Rules, R. 14.05(3)(h); Alberta Rules of Court, Alta. Reg. 124/2010, R. 3.2(2)(a);  
Queen’s Bench Rules, Man. Reg. 553/88, R. 14.05(2)(d); Rules of Court, N.B. Reg.  
82-73, R. 16.04(j); Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D,  
R. 5.02(1)(b); PEI Rules, R. 14.05(3)(i); Saskatchewan Rules, R. 3-49(1)(i). For  
example, Ontario R. 14.05(3)(h) states:  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 12  
14.05(3) A proceeding may be brought by application where these rules  
authorize the commencement of a proceeding by application or where the  
relief claimed is,  
…
(h) in respect of any matter where it is unlikely that there will be any  
material facts in dispute requiring a trial.  
[33] The Nova Scotia Civil Procedure Rules (2008) allow a person to choose to  
commence either an action or application “as the person is satisfied would be  
appropriate”: R. 6.01.  
[34] Accordingly, the British Columbia and Federal courts appear to be the only  
jurisdictions whose rules do not either expressly allow for a party to seek Charter  
relief by way of petition or application, or expressly permit a petition or application,  
as opposed to an action, to be brought where there are no substantial facts in  
dispute.  
[35] A review of the various proceedings that are listed in R. 2-1(2) reveals that  
they do not generally require the kind of adversarial fact-finding that is permitted in  
an action. The AGBC also correctly observes that both the Supreme Court of  
Canada and this Court have repeatedly emphasized the importance of ensuring that  
constitutional issues are addressed on a full factual record; see e.g., British  
Columbia (Attorney General) v. Christie, 2007 SCC 21 at para. 28; Danson v.  
Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1099, 1990 93; Denton  
v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 403 at  
para. 49, leave to appeal to SCC ref’d, 37923 (25 October 2018).  
[36] Nevertheless, the concern that a proceeding brought by petition that seeks  
Charter relief may lack a proper factual foundation does not, without more, create a  
principled bar to an applicant commencing a proceeding in this way. Instead,  
whether the factual foundation for a particular case is adequate requires a case-  
specific assessment. The fact that the rules of court in some provinces allow cases  
seeking Charter relief to proceed, in the first instance, by way of petition or  
application speaks to this.  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 13  
[37] Furthermore, some triable issues can now be addressed within a petition  
proceeding. In Cepuran v. Carlton, 2022 BCCA 76, a five-judge division of this Court  
clarified that where a triable issue is raised in a petition, a judge is not obliged to  
refer the matter to the trial list under R. 22-1(7). Instead, the judge has the discretion  
to do so or, alternatively, to employ other pretrial procedures to allow for resolution  
of the issues. In Cepuran, Griffin, J.A., for the court, confirmed that “[t]he mere fact  
that there is a triable issue is no longer a good reason” for dispensing with the  
summary procedure of a petition in favour of an action: at para. 158. Justice Griffin  
said:  
[159] The modern approach to civil procedure, as encouraged in Hryniak, is  
to allow parties and the trial courts to tailor the pre-trial and trial procedures to  
a given case, in the interests of proportionality and access to justice, while  
preserving the court’s ability to fairly determine a case on the merits. In my  
view, R. 16-1(18) and R. 22-1(4) work to reflect this modern approach within  
a petition proceeding.  
[160] To summarize, I am of the view that a judge hearing a petition  
proceeding that raises triable issues is not required to refer the matter to trial.  
The judge has discretion to do so or to use hybrid procedures within the  
petition proceeding itself to assist in determining the issues, pursuant to  
R. 16-1(18) and R. 22-1(4). For example, the judge may decide that some  
limited discovery of documents or cross-examination on affidavits will provide  
an opportunity to investigate or challenge the triable issue sufficiently to allow  
it to be fairly determined by the court within the petition proceeding, without  
the need to convert the proceeding to an action and refer it to trial.  
…
[166] At a minimum, when considering whether to order the use of hybrid  
procedures within the petition proceeding itself, or to refer the matter to trial,  
the court will need to be mindful of the object of the Rules set out in R. 1-3: to  
secure the just, speedy and inexpensive determination of every proceeding  
on its merits, and so far as can be achieved, in ways that are proportionate to  
the amount involved, the importance of the issues, and the complexity of the  
proceeding.  
[38] The question remains, however, of whether s. 24(1) of the Charter is an  
enactment that “authorizes” an application to court that can be brought by petition. In  
this case, the judge relied on several authorities as well as Rules 1-2(4) and (5) to  
determine that it is. Consequently, the judge concluded that Grace Chapel’s  
application for declaratory relief was properly brought by petition.  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 14  
[39] There are several difficulties with this conclusion. First, respectfully, most of  
the cases relied upon by the judge at para. 88 of her reasons do not support her  
conclusion. Indeed, several are inconsistent with the position taken by the judge.  
[40] In McKenzie v. Canadian Human Rights Commission (1985), 85 C.L.L.C.  
17,017, 1985 5268, Justice McNair squarely addressed whether a litigant is  
entitled to seek declaratory relief under s. 24(1) of the Charter in the Federal Court  
by way of an originating application (similar to a petition under the Rules). Justice  
McNair rejected the suggestion, relying in part on the earlier Federal Court decision  
in Banks v. the Queen, 1983 CarswellNat 1034 (T.D.) (Docket T-1110-83,  
unreported), which is the second of the authorities relied on by the judge. Justice  
McNair, at 16–19, said:  
… In my opinion, [s.] 24(1) of the Charter, creates a general, substantive right  
to relief for the infringement or denial of guaranteed rights under the Charter  
but it does not mandate the particular mode of proceeding by which the claim  
for relief must be enforced in the procedural sense.  
Put another way, section 24 of the Charter does not authorize a complainant  
to casually ignore the prescribed rules of procedure of the Court when  
making a claim. If it were otherwise, havoc would result in the plethora of  
litigation arising under the Charter in the sense that the Court would be called  
upon to adjudicate on claims in the abstract without any regard to rules of  
procedure for the pursuit or enforcement of those claims.  
The point came before Mr. Justice Collier in Banks et al v. The Queen  
[unreported; T-1110-83; (F.C.T.D.) May 13, 1983], and he disposed of the  
argument that [s.] 24(1) of the Charter empowered the Court to make a  
declaration on simple application or motion by stating at p. 6:  
I do not agree. The Charter subsection does not, in my  
opinion, alter the procedure set out in the rules or statutes  
governing this, or any other, court of competent jurisdiction. It  
permits someone alleging infringement to apply to a  
competent court for relief. It does not, to my mind, lay down  
the method of getting into, and invoking the process of, the  
particular court.  
In any event, I am of the view the constitutional point should, in  
the best interests of everyone, go to trial in the usual way.  
I am of the same mind and therefore conclude that the application for  
declaratory relief pursuant to section 18 of the Federal Court Act must be  
dismissed on these grounds without prejudice to the applicant’s right to  
proceed by way of action if he deems it advisable.  
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[41] Thus, both Banks and McKenzie are inconsistent with the judge’s  
conclusions. Instead, in both cases the court held that s. 24(1) does not provide a  
stand-alone basis to bring a constitutional challenge by way of an originating  
application or petition proceeding.  
[42] The judge also relied on British Columbia (Milk Marketing Board) v. Saputo  
Products Canada G.P./Saputo Produits Laitiers Canada S.E.N.C., 2017 BCCA 247.  
However, the Charter, and in particular s. 24(1), had no relevance in Saputo.  
Instead, the petition filed in Saputo was authorized by ss. 15 and 17 of the Natural  
Products Marketing (B.C.) Act, R.S.B.C. 1996, c. 330: at paras. 40–41. Thus, Saputo  
was not relevant to the narrow issue before the judge. At most, it provided an  
illustration of where R. 2-1(2)(b) had been properly engaged.  
[43] The judge also relied on L’Association des parents de l’école Rose-des-Vents  
v. Conseil scolaire francophone de la Colombie-Britannique, 2011 BCSC 89. The  
judge noted that Justice Willcock, as he then was, commented that “[I]t is  
permissible to seek both declaratory relief under s. 24 of the Charter and a remedy  
under the JRPA in the same petition.” But that proposition was not at issue in the  
proceedings before the judge, nor is it contested on this appeal. Instead, the narrow  
question before the judge was whether a party who seeks Charter relief in  
circumstances where the JRPA is not engaged can do so by way of petition.  
[44] The judge also relied on R. v. S.B. (1982), 40 B.C.L.R. 273, 1982 595  
(S.C.), rev’d on other grounds 43 B.C.L.R. 247, 1983 371 (C.A.), and Noyes  
v. Board of School Trustees, School District No. 30 (South Cariboo) (1985), 64  
B.C.L.R. 287, 1985 508 (S.C.). Both decisions support the judge’s  
conclusions. However, both were decided in the early days of the Charter. Neither  
refer to other authority and both have since been overtaken by other jurisprudence.  
Moreover, in my view, both S.B. and Noyes were wrongly decided.  
[45] In S.B. the petition of the applicant raised three grounds of relief:  
a) an appeal under s. 37 of the Juvenile Delinquents Act, R.S.C. 1979, c. J-  
3;  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 16  
b) the prerogative writ of prohibition; and  
c) a declaration pursuant to s. 24 of the Charter.  
[46] In S.B. the judge correctly observed that “[t]he substantive remedy is spelled  
out in s. 24 of the Charter, while the procedural machinery can be found in the  
Supreme Court Rules”: at 277. He then observed that the Crown did not object to  
the form of proceedings and he concluded that the Rules were “flexible enough to  
entertain all three applications by way of petition”: at 278. In his “Summary” the  
judge held that “[a] person seeking a declaration in accordance with s. 24(1) of the  
Charter may apply to this court by way of petition or notice of appeal”: at 289. It is  
also notable, for reasons I will return to, that the petitioner sought a declaration, and  
the judge determined, that the Juvenile Delinquents Act was “of no force or effect” to  
the extent that it offended s. 11(f) of the Charter.  
[47] In Noyes, the petitioner was suspended without pay by the respondent school  
board. The petitioner argued that procedural errors were made by the school board  
when deciding on his suspension and that the school board contravened the  
Charter. Alternatively, he argued the provisions of the School Act, R.S.B.C. 1979,  
c.375 should be struck down as being contrary to the Charter. The petitioner did not  
seek relief under the JRPA. The judge, who was the same judge as in S.B., referred  
to the language of s. 24(1) of the Charter and, at 289, said:  
Hence, a person complaining about interference with his legal rights may take  
one of three steps:  
(1)  
He may petition the court under the Judicial Review Procedure  
Act in which event the court is confined to an examination of any  
breaches of his common law rights and the remedies available  
thereunder, or  
(2)  
He may petition the court under the Charter in which event the  
court is confined to an examination of a breach of his constitutional  
rights and the remedies available thereunder, or  
(3)  
He may combine his petition under the Canadian Charter of  
Rights and Freedoms with a complimentary request for relief under  
the Judicial Review Procedure Act. In that event, both common law  
rights and constitutional rights may be looked at and the remedies  
available invoked.  
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Page 17  
[48] The first and third of these propositions are not in question. The judge in this  
case relied on the second proposition to ground her conclusions.  
[49] The reasoning in S.B. and Noyes reveal various difficulties. In the early days  
of the Charter, the distinction between s. 52 of the Constitution Act, 1982 and s.  
24(1) of the Charter, and the role each serves, was not well understood. Today,  
however, these matters are much clearer. In R. v. Ferguson, 2008 SCC 6, the Court  
said:  
61  
It thus becomes apparent that ss. 52(1) and 24(1) serve different  
remedial purposes. Section 52(1) provides a remedy for laws that violate  
Charter rights either in purpose or in effect. Section 24(1), by contrast,  
provides a remedy for government acts that violate Charter rights. It provides  
a personal remedy against unconstitutional government action and so, unlike  
s. 52(1), can be invoked only by a party alleging a violation of that party's own  
constitutional rights: Big M; R. v. Edwards, [1996] 1 S.C.R. 128. Thus this  
Court has repeatedly affirmed that the validity of laws is determined by s. 52  
of the Constitution Act, 1982, while the validity of government action falls to  
be determined under s. 24 of the Charter: Schachter; R. v. 974649 Ontario  
Inc., [2001] 3 S.C.R. 575, 2001 SCC 81. We are here concerned with a law  
that is alleged to violate a Charter right. This suggests that s. 52(1) provides  
the proper remedy.  
[Emphasis in original.]  
See also Greater Vancouver Transportation Authority v. Canadian Federation of  
Students — British Columbia Component, 2009 SCC 31 at paras. 85–89; British  
Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228  
at paras. 255–257, leave to appeal to SCC granted, 38814 (13 February 2020),  
appeal discontinued; Peter Hogg and Wade Wright, Constitutional Law of Canada,  
5th ed., vol. 2 (Toronto: Thomson Reuters, 2007) (loose-leaf updated 2021), ch.  
40:13 and 40:22; Horsman and Morley, ch. 12:10.  
[50] Based on this guidance, it is clear that the proceedings in S.B., where the  
applicant sought a declaration that the Juvenile Delinquents Act “was of no force or  
effect,” should have been brought under s. 52 rather than s. 24(1). The same is true,  
at least in part, for Noyes.  
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Page 18  
[51] Furthermore, and perhaps more importantly for present purposes, the judge  
in both S.B. and Noyes considered that s. 24(1) permitted an applicant to proceed  
under the former R. 10, which is presently R. 2-1(2). The judge in this case was of  
the view that the language of s. 24(1) “authorized” an application to the court and  
therefore, under Rules 1-2(4) and (5), that application was properly brought by way  
of petition. Respectfully, these various views are not correct.  
[52] Section 24(1) of the Charter provides:  
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter,  
have been infringed or denied may apply to a court of competent jurisdiction  
to obtain such remedy as the court considers appropriate and just in the  
circumstances.  
[53] To start with, the words “a court of competent jurisdiction” in s. 24(1) have  
nothing to do with the procedure by which an application under s. 24(1) is brought.  
Instead, those words are directed to the question of whether the court or tribunal that  
hears a s. 24(1) application has the jurisdiction to do so. Thus, a superior court of  
general jurisdiction is always a court of competent jurisdiction for the purposes of s.  
24(1): R. v. Rahey, [1987] 1 SCR 588 at 603–04, 1987 52; R. v. Smith,  
[1989] 2 SCR 1120 at 1130, 1989 12; Hogg and Wright, ch. 40:16. Generally,  
an administrative tribunal with the authority to decide questions of law is also a court  
of competent jurisdiction for the purposes of s. 24(1), unless Charter issues have  
clearly been excluded from their jurisdiction by their enabling statute: R. v. Conway,  
2010 SCC 22 at para. 22; Hogg and Wright, ch. 40:16.  
[54] It is also understood that s. 24(1) does not direct the means or procedure by  
which a s. 24(1) claim is brought. In R. v. Mills, [1986] 1 SCR 863, 1986 17,  
Justice McIntyre, for the majority, said: “s. 24(1) gives no jurisdictional or procedural  
guide. This absence makes it clear that the procedures presently followed must be  
adapted and used for the accommodation of applications for relief under s. 24(1)”: at  
956–57. Accordingly, “Charter remedies should, in general, be accorded within the  
normal procedural context in which an issue arises” and it is only “if the ordinary  
procedures failed to meet the requirements of the Charter fully, then a means must  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 19  
be found to give it life”: Mills at 971, La Forest J. dissenting. Justice McIntyre also  
said: “the Charter was not intended to turn the Canadian legal system upside down.  
What is required … is that it be fitted into the existing scheme of Canadian legal  
procedure. There is no need for special procedures and rules to give it full and  
adequate effect”: at 953. See also: R. v. 974649 Ontario Inc, 2001 SCC 81 at para.  
23.  
[55] This guidance finds support elsewhere. In Hogg and Wright, ch. 40:17, the  
authors state:  
… [T]he courts have usually insisted that existing procedures be employed  
for s. 24(1) applications, so that well understood procedural values are not  
ignored simply because a constitutional point is an issue. This is why  
applications respecting the conduct of a trial should normally be made to the  
trial judge, who is in the best position to determine whether a trial should be  
delayed or interrupted.  
[Citations omitted.]  
[56] In Dale Gibson, The Law of the Charter: General Principles (Toronto:  
Carswell, 1986) at 284–285, the author states:  
Existing legal procedures have established an orderly and well understood  
division of labour among the various participants in the adjudicative process.  
These procedures are generally regarded, for the most part, as the fairest  
and most efficient methods of conducting litigation. It would make little sense  
in most cases to abandon or disrupt the system just because Charter rights  
are involved.  
[57] I have also earlier referred to McKenzie and Banks, which confirm that s.  
24(1) claims brought in the Federal Court must conform with the Federal Court  
Rules. Other decisions similarly support the need to bring s. 24 claims within, and in  
accordance with, the appropriate procedural framework. For example, in Lussier v.  
Collin, [1985] 1 F.C. 124, 22 C.C.C. (3d) 124 (C.A.), the Federal Court of Appeal  
quashed a damage remedy granted by the Federal Court in an application for  
judicial review. The original application sought relief in the nature of certiorari and  
mandamus for breach of s. 7 rights and Charter damages. The Federal Court of  
Appeal determined that the Federal rules of court required an action, not an  
application, for a claim for damages, including Charter damages. Justice Pratte  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 20  
reasoned that s. 24 “does not permit the rules of procedure prescribing how such  
claims must be made to be ignored”: at 125. Justice Hugessen, in separate  
concurring reasons, said: “the rules of procedure do not allow such an order to be  
made on a mere motion; to maintain the contrary would seriously prejudice the right  
of the defendant to raise all his defences”: at 126.  
[58] Similarly, in R. v. Reisher, [2002] O.J. No. 1793, 2002 CarswellOnt 1526, the  
applicant brought an application for habeas corpus under Ontario’s Criminal  
Proceedings Rules and also sought Charter damages. The Court, following Mills,  
dismissed the application in part on the basis that the criminal rules provided no  
jurisdiction to award Charter damages. The Court held that the applicants were  
required to commence a separate civil proceeding following the Ontario Rules of  
Civil Procedure: at para. 21.  
[59] As s. 24(1) of the Charter “provides no … procedural guide” on how a s. 24  
claim must be advanced (Mills at 956), such guidance must be found in the Rules.  
For ease of reference I have repeated Rules 1-2(4) and (5), which were relied on by  
the judge, and R. 2-1(2)(b), which the City and the AGBC have referred to:  
Rule 1-2  
(4) If an enactment, other than these Supreme Court Civil Rules or the  
Supreme Court Family Rules, authorizes an application to the court or to a  
judge, the application must be  
(a)  
by petition under Rule 16-1 or requisition under Rule 17-1,  
…
whether or not the enactment provides for the mode of application.  
(5)Subrule (4) does not apply if a particular mode of application is required by  
an enactment of Canada.  
…
Rule 2-1  
(2) To start a proceeding in the following circumstances, a person must file a  
petition or, if Rule 17-1 applies, a requisition:  
…
The Redeemed Christian Church of God v. New Westminster (City)  
Page 21  
(b) the proceeding is brought in respect of an application that is  
authorized by an enactment to be made to the court;  
[Emphasis added.]  
[60] Rule 1-1(2) states: “Unless a contrary intention appears, the Interpretation Act  
… appl[ies] to these Supreme Court Civil Rules.” Section 2(1) of the Interpretation  
Act, R.S.B.C. 1996, c. 238, confirms that its provisions apply “to every enactment”  
unless a contrary intention appears in the enactment or in the Interpretation Act.  
[61] An “enactment” is defined in s. 1 of the Interpretation Act and “means an Act  
or a regulation or a portion of an Act or regulation.” The Rules are found in B.C. Reg.  
168/2009, as amended from time to time, and are therefore undoubtedly an  
“enactment.” Further, s. 1(1) of the Court Rules Act, R.S.B.C. 1996, c. 80, provides:  
“The Lieutenant Governor in Council may, by regulation, make rules that the  
Lieutenant Governor in Council considers necessary or advisable governing the  
conduct of proceedings in … the Supreme Court.”  
[62] An “Act” is defined in the Interpretation Act as “an Act of the Legislature,  
whether referred to as a statute, code or by any other name, and … that has the  
force of law.”  
[63] Pursuant to s. 29 of the Interpretation Act, “Legislature” means “the  
Lieutenant Governor acting by and with the advice and consent of the Legislative  
Assembly.” Finally, “Legislative Assembly” is defined as “the Legislative Assembly of  
British Columbia constituted under the Constitution Act.”  
[64] Simply put, this means the word “enactment’ in Rules 1-2(4) and 2-1(2)(b) is  
limited to Acts or regulations that are enacted in British Columbia. Only Acts or  
regulations enacted in British Columbia can “authorize an application to the court” for  
the purposes of Rules 1-2(4) and 2-1(2)(b).  
[65] Rule 1-2(5) pertains to “enactments of Canada.” Those words are not defined  
in the British Columbia Interpretation Act. However, under the federal Interpretation  
Act, R.S.C. 1985, c.I-12, ss. 2 and 35, an “enactment” is an Act or Regulation of the  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 22  
Parliament of Canada. Rule 1-2(5) establishes that R. 1-2(4) does not apply to  
federal Acts or regulations that require “a particular mode of application.”  
[66] There are number of examples of federal statutes that either expressly  
authorize or require an “application” to be brought by petition or another similar  
procedure. Examples of such federal statutes include the Business Corporations  
Act, R.S.C. 1985. c. C-44, s. 248 (see e.g., Re Anthem Works Ltd., 2005 BCSC 766  
at paras. 30–31; Southpaw Credit Opportunity Master Fund LP v. Asian Coast  
Development (Canada) Ltd., 2012 BCSC 14 at paras. 22–24); Companies’ Creditors  
Arrangement Act, R.S.C. 1985, c. C-36, s.10 (see e.g. Re 360 networks inc., 2003  
BCSC 1030 at paras. 10, 13); Canada Cooperatives Act, S.C. 1998, c.1, s. 347.  
[67] The Expropriation Act, R.S.C. 1985, c. E-21, s. 31, is an example of a federal  
statute that directs the mode of application to the courts by way of an action.  
[68] In circumstances where a federal enactment contemplates an application to  
the courts but does not require “a particular mode of application,” neither R. 1-2(4)  
nor R. 1-2(5) is applicable. It is then necessary to consider whether the intended  
proceeding otherwise falls within one of the circumstances that are described in R.  
2-1(2). If it does not fall within R. 2-1(2), then R. 2-1(1), which can be viewed as a  
default provision, is engaged and states that the proceeding “must be started by the  
filing of a notice of civil claim under Part 3.”  
[69] There are numerous federal statutes that authorize an “application” to be  
made to court but make no reference to the required mode of application. This  
includes, for example, the Aeronautics Act, R.S.C. 1985, c. A-2 ss. 4.5, 15; the  
Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp) s. 29; and the Canada  
Transportation Act, S.C. 1996, c. 10, s. 53.4.  
[70] Finally, I turn to the Charter. It is properly described as Part 1 of the  
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.  
It was adopted by a constitutional process which initially took the form of a statute of  
the Parliament of the United Kingdom: Law Society of Upper Canada v. Skapinker,  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 23  
[1984] 1 S.C.R. 357 at 365, 1984 3; Patrick J. Monahan and Byron Shaw,  
Constitutional Law, 4th ed. (Toronto: Irwin Law, 2013) at 4–6.  
[71] Furthermore, and in any event, s. 24(1) of the Charter does not, as we have  
seen, direct or require any specific mode of application. Accordingly, neither R. 1-  
2(4) nor (5) is relevant and neither dictates or informs how a proceeding under the  
Charter is to be commenced. Instead, R. 2-1(1) is engaged and, by default, directs  
that Charter proceedings “must be started by the filing of a notice of civil claim under  
Part 3.”  
[72] In my view, the judge erred in concluding that s. 24(1) of the Charter and  
Rules 1-2(4) and (5) authorized the respondents to commence these proceedings by  
way of petition in the absence of a properly brought judicial review petition.  
Issue 2: What is the Appropriate Remedy in the Circumstances?  
[73] The general answer to this question, which is found in the Rules, is  
straightforward and not in dispute. Rules 22-7(1), 22-7(2)(e) and 22-7(3) provide:  
22-7  
Non-compliance with rules  
(1) Unless the court otherwise orders, a failure to comply with these Supreme  
Court Civil Rules must be treated as an irregularity and does not nullify  
(a) a proceeding,  
(b) a step taken in the proceeding, or  
(c) any document or order made in the proceeding.  
Powers of court  
(2) Subject to subrules (3) and (4), if there has been a failure to comply with  
these Supreme Court Civil Rules, the court may  
…
(e) make any other order it considers will further the object of these  
Supreme Court Civil Rules.  
Proceeding must not be set aside for incorrect originating pleading  
(3) The court must not wholly set aside a proceeding on the ground that the  
proceeding was required to be started by an originating pleading other than  
the one employed.  
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[74] The effect of R. 22-7(3) is clear: It confirms that a proceeding is not to be  
“wholly set aside” on the basis that it was incorrectly commenced using a form of  
pleading other than the one required. However, a trial or motions judge has  
significant discretion on how best to rectify such a situation.  
[75] In Gittings v. Caneco Audio-Publishers Inc. (1988), 26 B.C.L.R. (2d) 349,  
1988 2832 (C.A.), the plaintiff had commenced an action for damages for  
breach of fiduciary duty and negligent misrepresentation, as well as a claim for  
compensation under s. 224 of the Company Act, R.S.B.C. 1979, c. 59. The  
defendants applied to have the statement of claim struck out, in part on the basis  
that it should have been brought by way of petition. Several paragraphs of the  
statement of claim were struck out, as was the s. 224 claim. The appeal from that  
order was allowed in part on the basis that the judge failed to apply R. 2(3) of the  
previous Rules, which is equivalent to the present R. 22-7(3). What is important, for  
present purposes, is that the court recognized that, although the claim should have  
been brought by petition, nevertheless, “it would not be a practical possibility to deal  
with the complex issues which appear to be raised here without essentially  
converting the proceeding into an action”: at 352. Rather than have the plaintiffs file  
a petition, which would then be converted into an action, the court struck the  
plaintiff’s statement of claim, which was defective for other reasons, but granted the  
plaintiff leave to file a new statement of claim. See also: Leung v. 568263 BC Ltd.,  
2000 BCSC 577 which is to similar effect.  
[76] In 0927745 B.C. Ltd. v. Charlie’s Chocolate Factory Ltd., 2014 BCSC 610,  
Justice Myers addressed a proceeding that had been commenced by way of petition  
and which should have proceeded by notice of civil claim. He fashioned a practical  
solution and said:  
13  
Rule 22-7 deals with the effect of non-compliance with the Rules. Rule  
22-7(3) provides that a proceeding is not to be set aside if it was commenced  
by a pleading other than the mandated one. Accordingly, I order that this  
petition be converted to an action. To save the parties costs, I also order that  
the petition stand as a notice of civil claim and that the response to the  
petition stand as a response to the civil claim.  
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Page 25  
[77] In Transpacific Tours Ltd. (c.o.b. CP Air Holidays) v. Canada (Director of  
Investigation and Research) (1985), 68 B.C.L.R. 32, 1985 107 (S.C.), which  
dealt with a Charter claim, the judge concluded that the proceeding had been  
incorrectly commenced as a petition. However, neither of the parties objected to the  
proceeding having been commenced by petition instead of by writ of summons.  
Therefore, the court exercised its discretion “to permit continuance of the  
proceedings in their present form”: at 38.  
[78] I have said that I consider the judge erred in finding that this proceeding was  
properly before the court by way of petition. In the present case, I am of the view that  
the judge’s order granting the respondent a “declaration that the City unjustifiably  
infringed its right to freedom of expression under s. 2(b) of the Charter” should be  
set aside.  
[79] This result is informed by various considerations. In particular, I have  
considered that the appellant argues that it was inhibited from marshaling and  
advancing the evidence it wanted to within Grace Chapel’s petition proceeding.  
Furthermore, the judge has already granted Grace Chapel liberty, should it choose,  
to convert its s. 2(a) Charter claim into an action. It is preferable, for self-evident  
reasons, that the two claims be addressed concurrently within a single pleading and  
a single proceeding. Accordingly, in my view, Grace Chapel’s petition should be  
dismissed without prejudice to its right to commence an action seeking the same  
relief. It should be apparent that this conclusion has nothing to do with the merits of  
the claim, or with the substantive relief Grace Chapel advances.  
Issue 3: Standing  
[80] The next issue is whether the judge correctly decided that “Grace Chapel has  
standing to seek a declaration that the City breached its s. 2(a) Charter right.” In her  
reasons, she canvassed the relevant legal authorities. She was persuaded to adopt  
the views of Justices McLachlin, Moldaver and Rothstein, expressed in Loyola High  
School v. Québec (Attorney General), 2015 SCC 12 at paras. 99 and 100, that given  
the collective aspect of religious freedom, a religious organization itself could have s.  
The Redeemed Christian Church of God v. New Westminster (City)  
Page 26  
2(a) protection. She recognized that in Law Society of British Columbia v. Trinity  
Western University, 2018 SCC 32 at para. 61, the majority of the Court declined to  
decide whether an institution could possess rights under s. 2(a) of the Charter.  
[81] In my view, the judge’s decision to address the narrow issue of standing, in  
circumstances where she decided Grace Chapel’s s. 2(a) Charter claim could not be  
determined on the record before her and should be converted to an action, reflected  
an error in principle. In particular, I consider the judge erred in failing to consider the  
various factors that were relevant to her decision to sever the standing issue apart  
from the balance of the issues that would arise in Grace Chapel’s s. 2(a) claim.  
[82] The issue of severing and then deciding a single issue apart from the  
numerous other issues that are raised by a claim is often addressed in the context of  
summary trial applications brought under R. 9-7. And it is in that context that this  
Court has frequently addressed the risks associated with “litigating in slices.”  
Further, it is in that context that this Court, in Ferrer v. 589557 B.C. Ltd., 2020 BCCA  
83 at para. 27, quoting from Greater Vancouver Water District v. Bilfinger Berger  
AG, 2015 BCSC 485 at para. 110, recently distilled a number of relevant factors that  
must be considered when deciding whether to determine only some of the issues  
that are raised by a claim:  
a) whether the court can find the facts necessary to decide the issues of fact  
or law;  
b) whether it would be unjust to decide the issues by way of summary trial,  
considering amongst other things:  
i. the implications of determining only some of the issues in the  
litigation, which requires consideration of such things as:  
(1) the potential for duplication or inconsistent findings, which  
relates to whether the issues are intertwined with issues  
remaining for trial;  
(2) the potential for multiple appeals; and  
(3) the novelty of the issues to be determined;  
ii. the amount involved;  
iii. the complexity of the matter;  
iv. its urgency;  
The Redeemed Christian Church of God v. New Westminster (City)  
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v. any prejudice likely to arise by reason of delay; and  
vi. the cost of a conventional trial in relation to the amount involved.  
[83] I recognize that some of these considerations have limited relevance in a  
Charter claim. Nevertheless, I consider that, in the main, this list of factors provides  
a useful framework for considering whether the judge erred in severing the issue of  
standing from the balance of Grace Chapel’s s. 2(a) claim. I leave aside, for present  
purposes, that the judge had already decided to sever and determine Grace  
Chapel’s s. 2(b) claim within its petition proceeding, while concurrently allowing  
Grace Chapel to convert its s. 2(a) claim to an action. Addressing the question of  
standing in isolation was, in a sense, dealing with a further “slice” of a separate  
Charter claim.  
[84] Reference to the factors that I have identified reveals that they  
overwhelmingly militate against the judge’s decision. The standing issue the judge  
chose to address was both novel and complicated. It is an issue that the majority of  
the Supreme Court of Canada in both Loyola and Trinity Western University, had  
chosen not to address. There was also no need to address the issue of standing at  
that stage of the proceedings. Having decided that she could not, on the record  
before her, address Grace Chapel’s s. 2(a) claim, the parties would not suffer any  
prejudice on account of delay by having all of the issues associated with the s. 2(a)  
claim heard concurrently. Further, addressing the standing issue gave rise to the  
real prospect of multiple appeals as the different aspects of Grace Chapel’s claim  
worked their way through the courts.  
[85] In addition, by not deciding the standing issue, the judge would have avoided  
the risk that Grace Chapel, having already succeeded on its s. 2(b) claim, might  
choose not to pursue its s. 2(a) claim. This, in fact, appears to be the likely  
consequence of the judge’s decision, as Grace Chapel has indicated in its factum  
that it is now unlikely to pursue its s. 2(a) claim. The consequence of this would be  
that the judge’s standing decision, and more importantly her adoption of the views of  
three judges in Loyola, would become stranded and untethered from a claim.  
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[86] Finally, the judge failed to consider the general policy of judicial restraint that  
underlies constitutional litigation and that is often reflected in questions of standing  
or mootness: see, for example, Borowski v. Canada (Attorney General), [1989] 1  
S.C.R. 342, 1989 123.  
[87] I would allow this aspect of the City’s appeal and set aside the judge’s  
decision on standing.  
Issue 4: The judge’s s. 1 justification test.  
[88] Because she dealt with Grace Chapel’s s. 2(b) Charter claim, the judge was  
required to consider the novel question of how to analyse when government’s  
exercise of a contractual right constitutes a “reasonable limit prescribed by law”  
under s. 1 of the Charter. I have said that the judge recognized the case before her  
fell “within relatively novel legal territory.” The case before her dealt with a  
contractual decision that was exercised by the City as a non-adjudicative decision-  
maker.  
[89] The judge recognized that the justification test initially developed by the  
Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, 1986 46, did  
not apply because the prima facie breach was not caused by a legislative  
enactment. As the Supreme Court of Canada held in Doré v. Barreau du Québec,  
2012 SCC 12 at para. 5, a formulaic application of the Oakes test does not work for  
an individual discretionary decision. However, the justification test from Doré and  
Loyola is likewise inappropriate because it relies on concepts of administrative law  
that are foreign to the exercise of discretion in a contractual setting. The judge  
accordingly developed a new test of “applying the criteria of minimal impairment and  
the proportionate balancing of Charter protections, viewed through the lens of  
reasonableness.”  
[90] This proposed test is the second basis on which the AGBC has intervened in  
this appeal. The AGBC proposes a different framework, in the present  
circumstances, within which to measure justification under s. 1 of the Charter. The  
AGBC argues that such a framework should draw on the Supreme Court of  
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Page 29  
Canada’s jurisprudence on the common law duty to exercise contractual discretion  
in good faith. The City agrees with this proposed framework in general terms albeit,  
as I understand it, with some differences. Grace Chapel relies on the framework  
created by the judge and does not respond in any meaningful way to the AGBC’s  
proposal.  
[91] I do not consider it prudent or necessary to address this issue. Doing so  
would give rise to the same concerns and risks that I identified when dealing with the  
judge’s decision to address the issue of Grace Chapel’s standing to bring a s. 2(a)  
claim. The s. 1 issue raised is both complex and novel. It has not been fully argued  
before us. Whether Grace Chapel will choose to pursue its s. 2(a) and (b) claim as  
an action is unclear. If it does choose to advance its claims, this s. 1 issue, together  
with any other issues associated with the claim, should be advanced on a full record.  
[92] Since I am of the view that the judge’s s. 2(b) decision could not be advanced  
within a petition proceeding and should be set aside, it follows, with respect, that the  
judge’s proposed s. 1 justification test should not be relied upon in other  
proceedings.  
Disposition  
[93] In summary, I am of the view that the judge erred in determining that Grace  
Chapel could advance its s. 2(b) Charter claim by petition in the absence of a proper  
JRPA proceeding and that her resulting declaration that the City unjustifiably  
infringed Grace Chapel’s right to freedom of expression under s. 2(b) of the Charter  
should be set aside. I am similarly of the view that her order concluding that Grace  
Chapel has standing to seek a declaration that the City breached its s. 2(a) Charter  
rights should be set aside. Finally, I would convert the existing petition proceeding to  
an action and give Grace Chapel leave to file a notice of civil claim. That right is  
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Page 30  
without prejudice to the City thereafter raising whatever issues or defences it  
considers appropriate.  
“The Honourable Mr. Justice Voith”  
I AGREE:  
“The Honourable Madam Justice Fenlon”  
I AGREE:  
“The Honourable Mr. Justice Grauer”  


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