Summerland wins latest court battle against self-appointed watchdog

A failed judicial review by longtime District of Summerland watchdog Brad Besler will be appealed, Besler announced prior to a brief council meeting Friday afternoon.

At the public meeting — which lasted only a few minutes — members of Summerland council voted to pass a loan authorization bylaw to fund two major road projects in downtown Summerland, both nearing completion.

A previous bylaw, which sought to borrow roughly $5 million from the provincial government to help fund upgrades to Wharton Street and Victoria Road South, was delayed after Besler launched legal action calling for a judicial review. The total cost of both projects is approximately $12 million.

Besler, who did not stay for the official vote, was present before the meeting and verbally announced that he would be appealing the court’s decision.

He left council chambers before proceedings began, informing council that he intended to challenge the District in court again and believed an injunction would be granted.

CAO Graham Statt expressed disagreement, telling Mayor Doug Holmes and council members that he remains confident the law is on the District’s side.

Before exiting, Besler advised Statt to seek legal counsel.

Last Thursday, a judge ruled that the District of Summerland had successfully defended itself against Besler’s judicial review, which had been launched several months earlier.

While the District intends to pursue court costs, the amount recouped will likely represent only a small portion of the public funds used to defend the case.

The decision, released on Oct. 9 9 by Justice Christopher Giaschi, is available publicly at: bccourts.ca/supreme_court/recent_Judgments.aspx.

Giaschi ruled there was no evidence of bad faith on the part of Summerland Council and rejected claims by Brad Besler that the process to obtain public assent for borrowing on key infrastructure projects was flawed.

“There is simply no evidence of bad faith on the part of District Council,” Giaschi wrote in his Reasons for Judgment.

Other arguments presented by Besler were also analyzed and dismissed in full.

His petition questioned the validity of the public assent process followed by the District and alleged bad faith on the part of staff—allegations unrelated to the borrowing bylaws in question.

Due to the wording of the Community Charter, the litigation effectively brought the voter-approved borrowing process to a halt.

With few alternatives, Holmes and council authorized short-term internal borrowing from various reserve funds to keep the projects on track while awaiting Giaschi’s ruling.

Giaschi further noted: “…Courts should be very reluctant to interfere with decisions of a municipality concerning loan authorization bylaws that otherwise comply with the requirements of the Community Charter.

These are decisions that directly engage the public interest and a wide array of political, economic, and social factors. They are decisions that should properly be made by the elected body. Courts should not interfere in such decisions where the elected body has complied with the governing legislation.”

The District of Summerland spent approximately $70,000 in public funds to defend itself in this case alone. For comparison, a one per cent tax increase in Summerland yields about $100,000.

The District is actively defending several other legal challenges launched by Besler, a self-represented litigant. These include:

• Besler v. Statt (Penticton Registry No. 49758): Alleging misfeasance and conspiracy regarding the District’s Freedom of Information (FOI) officer obtaining an order under section 43 of FIPPA.
• Besler v. (Mayor) Holmes (Registry No. 50803): A defamation suit against Mayor Holmes.
• Besler v. Summerland (District) (Registry No. 51183): Alleging bad faith by staff and Council in the passage of a zoning bylaw.

In early May, Besler once again challenged the District during a council meeting, objecting to the funding strategy for two major downtown infrastructure projects.

Last year, council approved borrowing $5 million from the provincial government to support upgrades to Wharton Street and Victoria Road South, with a total project cost estimated at $12 million.

The District used the Alternative Approval Process (AAP), which allows borrowing to proceed unless at least 10% of registered voters submit objections. The borrowing bylaws received 7% and 9% opposition, respectively—below the required threshold—allowing the borrowing to proceed.

However, Besler’s legal challenge delayed access to the funds.

To avoid further construction delays, council opted to use reserve funds instead.

“As you know, the District is prevented from long-term borrowing until my judicial review is heard,” Besler said at the May council meeting. “Because of that, CAO Graham Statt has recommended using reserve funds instead.”

Statt maintained that the review was “without merit,” but Besler disagreed, claiming that if the court ruled in his favour and overturned the AAP, taxpayers would face significant cost increases.

“He claims that if borrowing resumes, reserves will be repaid with interest,” Besler said. “But if the District loses and the AAP is overturned, repayment would require a major tax hike.”

He also alleged that key financial data was withheld from both the public and council.

Besler further warned that using reserve funds could pose financial risks.

Statt confirmed that the approved borrowing—meant to be repaid over 25 years at low interest—had been paused.

“The projects have been council priorities since 2022,” he said. “We’re now using taxpayer funds to defend this litigation, which we believe is meritless.”

Statt warned that even a one-year delay could raise project costs by $250,000 to $620,000 due to inflation and contractor uncertainty. The Ministry of Municipal Affairs confirmed that internal borrowing from reserve funds is permitted.

— This story was originally published by the Penticton Herald.