Brewster v. City of New Westminster

2006 BCSC 1837 Brewster v. City of New Westminster

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Brewster v. City of New Westminster, 2006 BCSC 1837 Date: 20061212 Docket: S99469 Registry: New Westminster Between: Pierce Alan Brewster Petitioner And The Corporation of the City of New Westminster Respondent Before: The Honourable Mr. Justice Brine Reasons for Judgment Counsel for the petitioner: T. Hewitt Counsel for the respondent: D. Howieson Date and Place of Trial/Hearing: December 1, 2006 New Westminster, B.C. [1] The petitioner applies for Judicial Review of a decision of a City of New Westminster Fire Inspector made February 17, 2006, regarding the storage of, inter alia, canoes in the vehicle parking lot at the petitioner's apartment building. [2] Counsel agreed that the test for review was "correctness" with respect to the jurisdiction of the inspector to make such an order and "patent unreasonableness" with respect to the order made by him. [3] It was the position of counsel for the petitioner that as the governing legislation, the City of New Westminster Fire Protection Bylaw, did not specifically mention or prohibit canoe storage, the order should be set aside. [4] Counsel for the respondent contends that the bylaw (which was not challenged by the petitioner) provides the necessary power for the inspector to make such an order.

BACKGROUND [5] The petitioner resides at 308 - 109 10th Street, New Westminster in a strata unit of Strata Plan NWS1881, residential high-rise strata complex called Landgro Manor ("Landgro"). [6] The petitioner owns a canoe, which he had been storing in one or more parking stalls that were assigned to his exclusive use within Landgro. There was no issue as to the fact that the canoe in question was combustible. [7] On February 14, 2006, one of the respondent's fire inspectors, John McKnight, conducted a fire inspection of Landgro. Following the completion of the inspection, the inspector issued an Order of Deficiencies ("order") dated February 17, 2006, ordering, inter alia, that canoes, including the petitioner's canoe, stored in the parking area of Landgro be removed. [8] As a result of the order, the Landgro Strata Corporation has required the petitioner to remove his canoe. He has done so. [9] The legislative foundation for the order is the City of New Westminster Fire Protection Bylaw No. 6940 ("bylaw"). The bylaw adopts the National Fire Code ("NFC") as the standard of the respondent city. [10] Section 14.1 of the bylaw authorizes a Fire Protection Officer (there was no issue raised as to Mr. McKnight's status in that regard) to " issue orders in writing to an owner or occupier of any building or premises requiring the correction or removal of any condition or thing in or

about any building or structure which is in contravention of this Bylaw ." [11] Section 15.4 of the bylaw permits a Fire Protection Officer to order that the occupier remove a fire hazard. [12] Section 2.4.1 of the NFC deals with fire hazards and combustible materials (in part) as follows: 2.4.1.1 Accumulation of Combustible Materials 2) Combustible materials, other than those for which the location, room or space is designed, shall not be permitted to accumulate in any part of (a) means of egress . [13] The NFC defines Means of Egress as follows: Means of Egress means a continuous path of travel provided for the escape of persons from any point in a building . Means of egress includes exits and access to exits.

DISCUSSION [14] I am satisfied that Mr. McKnight had the jurisdiction to make orders pursuant to the bylaw. [15] I am also satisfied (indeed, it was agreed) that the standard of review of such an order is patent unreasonableness. [16] I am further satisfied that the bylaw is a public safety statute which, by virtue of the Interpretation Act, s. 8, is to be given a fair, large and liberal interpretation or construction. [17] In order to determine whether the order is subject to review it must be patently unreasonable for the inspector to have made the order. I cannot so conclude. [18] The bylaw expressly gives the inspector (Fire Protection Officer) the power to make orders requiring the removal of a fire hazard. The inspector's decision on such an issue, because of his expertise, is entitled to significant deference. The test on review is not whether this court would have arrived at the same conclusion. Rather, it may be reviewed only if the inspector's decision was patently unreasonable, that is if it was completely unsupported by any evidence. This court cannot simply substitute its discretion for the inspector's discretion, nor re-weigh and re-evaluate the evidence considered by the inspector for the purpose of reaching his own decision. [19] Here, the evidence is that the canoe was combustible and it was stored in a location, within the building, that was not designed for the storage of canoes (or other combustibles which are not motor vehicles) and from which a path of travel is provided. [20] I conclude, therefore, that the petitioner's application cannot succeed. The petition is dismissed. "D. Brine, J." The Honourable Mr. Justice D. Brine