Executive Summary: Key Legal and Evidentiary Issues

• Brian Ferstel sought judicial review of a remedial action requirement (RAR) passed by the Regional District of Nanaimo ordering demolition of two buildings on property located on Nanaimo River Road, formerly owned by his deceased father.

• Ownership of the property had likely escheated to the Crown in the Right of the Province in February 2025, though Ferstel retained standing as a person with a right of redemption.

• Procedural fairness was not established as a valid ground, since Ferstel received advance notice, attended Board meetings, and was afforded opportunities to make oral and written submissions.

• Sufficient evidentiary basis existed for the Board to reasonably conclude the two remaining buildings were structurally unsound and therefore in an unsafe condition.

• Promised engineering assurances and building permits were never obtained by Ferstel prior to the June Reconsideration Decision, nor adequately provided even at the judicial review stage.

• The Court applied the reasonableness standard of review per Vavilov and found the Board's decision rational, dismissing the petition and awarding tariff costs to the Regional District.

Background and property history

Brian Gordon Ferstel petitioned the Supreme Court of British Columbia for judicial review of a remedial action requirement resolution passed by the Regional District of Nanaimo, dated June 24, 2025, which required him to remove two buildings on a property located on Nanaimo River Road in Nanaimo, BC. The property had been in his deceased father's name, and it had been more than 10 years since his father's death, but Mr. Ferstel had yet to seek to have the property placed in his own name, largely because of the significant taxes owed on the property that he would then have to pay. It appears that the land is owned by the Crown in the Right of the Province, and that it likely escheated to the Crown in February of 2025 prior to the current round of remedial action requirements. Despite not being the registered owner, the Regional District conceded that Mr. Ferstel had standing to bring the petition as a person with a right of redemption over the property. Neither the Attorney General nor the Crown entity that controls the property indicated an intention to respond or participate in the judicial review.

The remedial action requirement and Board proceedings

The Regional District's concerns about the property centered on the hazardous structural condition of the buildings and the general unsightliness of the property. The Board initially passed a remedial action requirement resolution in March 2025 (the "March Resolution"). Mr. Ferstel was given advance notice that the Board was intending to consider the initial RAR at its March 25, 2025 meeting, and he was given an opportunity to make oral submissions prior to that resolution being passed. The Board also considered at that initial meeting Mr. Ferstel's request for an extension of time to repair the buildings at issue, but that extension request was moved and considered, and ultimately did not pass. Mr. Ferstel then sought reconsideration of the March Resolution, and the Board received and reviewed his written and oral submissions before issuing the June Reconsideration Decision, affirming the requirement for the demolition of the remaining buildings without delay. The Court noted that the Regional District had been somewhat patient with Mr. Ferstel, in the sense that the June Reconsideration Decision would have required demolition of both remaining buildings within 30 days. The Regional District provided Mr. Ferstel additional time and a warning, allowing him to comply with the RAR by October 8, at which point he obtained demolition permits for both buildings, which themselves provided another 30 days for him to complete the demolition.

Mr. Ferstel's arguments and repair efforts

Mr. Ferstel's legal basis, which the Court described as slight, was undue hardship and unreasonableness. He relied on an affidavit filed in December 2025 stating the decision was unreasonable and had caused him undue hardship, primarily because he had done considerable work on the buildings at issue and in securing the property, including replacing windows and doors, replacing sheathing, and applying new tar paper and roofing materials. He argued that two of the three buildings subject to the RAR, although previously unsafe and structurally unsound, could be made sound. He had already demolished a third building pursuant to the RAR and had fully addressed the unsightly conditions on the property. He attributed the property's unsafe and unsightly state to his late brother's occupation of the property, mostly because his brother let squatters and vandals occupy it. Since his brother's death, which occurred before the March Resolution, Mr. Ferstel secured the property for the safety of the public. He also presented unsworn photographs and a copy of an engineering report signed the past weekend, arguing that building #2 was fully remediated and safe, while conceding that more work was still needed on building #3 and that it was not yet structurally sound because the roof of building #3 is essential to its structural integrity. He also stated he had a heated cement slab floor built in or about 1992 before permit requirements applied in his electoral area that was still good and not cracked.

The statutory framework and standard of review

The Regional District is empowered by s. 305 of the Local Government Act, R.S.B.C. 2015, c. 1, to impose remedial action requirements under s. 73(a) of the Community Charter, S.B.C. 2003, c. 26, with respect to hazardous conditions of a building or structure. The Court confirmed that the applicable standard of review was reasonableness, as established in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and affirmed in prior cases such as North Vancouver (District) v. Wilson, 2022 BCSC 2014, and Este v. District of West Vancouver, 2022 BCSC 584, which was upheld by the Court of Appeal at 2022 BCCA 445. Under the reasonableness standard, the role of the court on judicial review is not to reweigh the evidence or substitute its own findings of fact or views of what would be appropriate for those of the democratically elected decision maker, but rather to decide whether the decision is rational or logical and justified in relation to the constellation of law and facts that are relevant to the decision. The Court also noted, citing Madaninejad v. North Vancouver (District), 2015 BCSC 895, that it is generally considered in the public interest that lawfully made decisions by municipal or local government authorities are complied with, particularly when they relate to safety.

The Court's findings on procedural fairness and reasonableness

The Court found that Mr. Ferstel had neither pleaded nor established, on the evidence, a lack of procedural fairness by the Regional District. On the question of reasonableness, the Court examined the record before the Board at the June Reconsideration Decision. Staff reports before the Board acknowledged that Mr. Ferstel had made significant progress to the unsightliness of the property, such that there was no longer any grounds to impose a remedial action requirement on the grounds of unsightliness, and that one of the three buildings had been removed in accordance with the March Resolution, albeit without a permit. The report also acknowledged that the problem with unsightliness and vagrancy on the property was largely a result of Mr. Ferstel's brother who had now passed, and that Mr. Ferstel was more responsible with respect to the property. Staff expressly provided an option to the Board to defer the RAR reconsideration for six months, but the Board's decision was to affirm the requirement for demolition without delay. Despite some Board members and directors being opposed, the vote to confirm the RAR in June of 2025 was overwhelming. Staff had also noted that the promised engineering assurances had still not been provided, that work had been done on the property without permits, and that the buildings were still structurally unsound. Even at the judicial review hearing, more than six months after the June Reconsideration Decision, the promised engineering assurances had not been provided, and what had been provided was insufficient to reassure the Court. At best, the report indicated that with substantially more unspecified and as yet incomplete work, Mr. Ferstel would be able to ask for a reconsideration of the 2024 demolition recommendation made by that same engineer. Mr. Ferstel conceded that building #3 was still not in a position where he could get an engineer to say even that much.

Ruling and outcome

Justice Marzari dismissed the petition, finding the Regional District of Nanaimo's decision to confirm the March Resolution with respect to the demolition of the two remaining buildings on the property was reasonable in the legal sense. The Court lifted the interim stay previously imposed by Justice Young in December 2025 but imposed a very limited and interim stay on the actual demolition, largely on compassionate grounds, to allow Mr. Ferstel 30 days to remove the most valuable things from the property and to demolish the buildings himself with appropriate permits, making clear this was not an opportunity to try again to save the buildings. The interim stay did not prevent the Regional District from beginning preliminary steps such as inspections or having contractors come to look at the property. With the consent of the Regional District, the Court also expressly excluded from the scope of the RAR the concrete slabs under the two buildings, which may remain and do not have to be removed. The Regional District of Nanaimo was found to have been substantially successful, and tariff costs on the ordinary scale were awarded in its favor; however, no exact monetary amount was specified in the decision.