Whereas the original intent of section 92 of the Community Charter was to give a council unfettered discretion to elect to adopt a bylaw under a head of power determined by the council such that a bylaw will be upheld if it is attacked on the basis that the predominant purpose in fact versus the legitimate purpose elected by the council is one requiring ministerial approval; And whereas the original intent and effect of section 92 was that a municipality need only determine one proper purpose for a bylaw to be valid, even if members of Council may have had other motivations: International Bio Research v. Richmond City, 2011 BCSC 471 at para. 43: Therefore be it resolved that UBCM request that the Province amend section 92 of the Community Charter to provide that a a bylaw is presumed to be enacted validly, in good faith and for a proper purpose if the council elects to determine in the bylaw the predominant purpose, and b that the council may adopt a bylaw under more than one head of power under the Community Charter, whether this is a matter of concurrent jurisdiction under section 91.
Ministry of Municipal Affairs Sections 8 and 9 of the Community Charter set out the spheres of authority for municipalities to regulate, prohibit and impose requirements by bylaw. Section 8 sets out areas of fundamental authority while section 9 sets out areas of concurrent authority between the Province and municipalities, including the requirement for provincial approval in areas of concurrent authority. Provincial approval of municipal bylaws can take the form of specific approval by the responsible minister, through agreement, or under a regulation made by the responsible minister specifying any limits on how a municipality may exercise powers in that sphere. Section 92 of the Community Charter further provides guidance as to the intended relationship between bylaws under sections 8 and 9. The Province recognizes that the recent BC Court of Appeal decision in Canadian Plastic Bag Association v. Victoria City, 2019 BCCA 254 and its interpretation of the intent and application of section 92 of the Community Charter has created uncertainty in relation to the meaning and application of this provision. Ministry of Municipal Affairs staff are reviewing the implications of the Court of Appeal decision to determine if a change to section 92 of the Community Charter should be put forward for governments consideration to clarify its intent.