Sahota v. Vancouver (City)

2010 BCSC 387 Sahota v. Vancouver (City)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sahota v. Vancouver (City), 2010 BCSC 387 Date: 20100324 Docket: S095208 Registry: Vancouver Between: Parkash Kaur Sahota Petitioner And The City of Vancouver Respondent Before: The Honourable Mr. Justice Greyell Reasons for Judgment Counsel for the Petitioner: D. Creighton Counsel for the Respondent: B. Parkin Place and Date of Hearing: Vancouver, B.C. November 18 and 19, 2009 Place and Date of Judgment: Vancouver, B.C. March 24, 2010 [1] On June 26, 2008 Vancouver City Council passed a resolution declaring 1847 Larch Street (the "Premise") to be a nuisance and dangerous to public safety and issued an order (the "Order") it was to be demolished within 30 days of the service of the resolution. The City Building Inspector was instructed to withhold action on the Order on the condition the petitioner submit a viable application for building and development permits by August 31, 2008, that she maintain the Premise in a neat, tidy and secure condition during the permit application process, and on other conditions. [2] The petitioner seeks to quash the Order on the following grounds: 1. the City acted beyond its powers and unreasonably in declaring the Premise to be a nuisance and dangerous to public safety; 2. the City improperly and unreasonably concluded the Premise did not retain its status as a legally non-conforming use;

and 3. the City improperly and unreasonably applied RT-8 Guidelines to the development permit process. [3] The petitioner seeks orders from the court: 1. quashing the City's determination the Premise is a nuisance pursuant to s. 324A of the Vancouver Charter, S.B.C. 1953, c. 55.; 2. quashing the Order to demolish the Premise; 3. for a declaration that the use of the Premise as a boarding house remain a legally non-conforming use; 4. that the City receive and process applications made by the petitioner for development of the Premise and for building permits; 5. that the City hear submissions to extend the time for issuing such permits and extend the time for completion of certain required work to the Premise; 6. that the front porch enclosure and rear room areas as set out in the petitioner's Development Permit Application had been legally approved and a City requirement to remove them was not lawful; and 7. restraining the City from demolishing the Premise until the petitioner has been given an opportunity to make submissions to City Council to extend the time for filing an application for the development and building permits.

BACKGROUND [4] The petitioner has owned the Premise since at least 1975. On April 24, 1975 the City approved a development permit authorizing a change of use to the Premise from a private hospital to one which permitted a total of nine sleeping units, two housekeeping units and a dwelling unit to be located on the main, first and second floors with a requirement there be no separate sleeping or living quarters in the basement. The Premise has since been used by the petitioner as a rooming house. [5] The zoning in the area of the Premise has changed since 1975. As a result it is now a non-conforming structure located in an RT-8 zone. In addition, the City's building by-laws have changed. [6] The City's development by-laws and particularly those where the Premise is located are discretionary in nature, often requiring detailed design constraints which the City development staff communicate to development permit applicants through "prior-to" development permit conditions. [7] A portion of the Premise was damaged by fire in April 2006. While the petitioner says the fire damage was of a minor nature, City officials describe the damage to the building as extensive. The building became uninhabitable as a result of the fire. I have reviewed below some of the findings by inspectors who attended the Premise at that time. [8] Following a co-ordinated service inspection shortly after the

fire, the City issued an order on April 24, 2006 (the "April 24 Order"), signed by each of the Building Inspector, City Electrician and Gas Safety Manager, ordering that occupancy of the building cease immediately and that the building not be reoccupied until various building and development permits were obtained and a re-occupancy permit granted. The April 24 Order "certified" the building to be in an unsafe condition for occupancy. [9] The violations and deficiencies noted in the April 24 Order included: three unapproved sleeping rooms in the basement; unapproved additions and alterations to the suites on the main, second and third floors; numerous violations of the electrical code; a non-operational sprinkler system; deficiencies under the Standards of Maintenance By-Law; deficiencies in the fire alarm and exit systems; and to correct deficiencies in work directed to be done by the Gas Safety Manager. [10] On December 26, 2006, some eight months after the fire, the petitioner applied to the City for the necessary building and development permits to repair the Premise. A permit was issued by the City on February 13, 2007. The permit required the petitioner to return each level of the Premise to the last approved use and to comply with the terms set in the April 24 Order. [11] Following an inspection of the Premise the City's Building Inspector wrote the petitioner on October

18, 2007 advising that as work had not commenced, the permit had expired pursuant to the provisions of the Vancouver Building By-Law. The by-law required work to be commenced within six months of the date of issue of a permit. The petitioner was advised work could not proceed until a new permit was obtained and that the building could not be re-occupied until a re-occupancy permit was issued. [12] The petitioner says she was unable to commence work or start repairs as a result of a disc hernia operation and her recovery from surgery. [13] On December 11, 2007 the petitioner submitted a further application for a building permit which the City refused on March 17, 2008. [14] In an order issued that date the City advised the petitioner that before proceeding with obtaining a building permit she would be required to obtain full Development Permit approval to repair the building and to restore the occupancy to its approved use. The City noted the Premise had been closed for two years since the fire, that there had been problems with squatters living in or about the property who the City had to remove and that the City had to secure the property on a number of occasions. The order declared the Premise to be a nuisance and dangerous to public safely because of the problem with squatters and the extensive by-law violations and unauthorized suites, and "requested" the petitioner obtain

a building permit to "pull down and demolish the building BY APRIL 14, 2008" (bolded in original). The petitioner was advised if she did not do so the Chief Building Inspector would request City Council to issue an order for demolition. [15] The petitioner then hired an architect, Mr. McEwen, who contacted the City's property use department to discuss permit applications. He was advised the City did not trust the petitioner to adequately upgrade the property given that two years had passed since the fire and no steps had been taken to repair the property under the repair permit. Mr. McEwen was also advised the City planned to seek a demolition order from City Council. [16] On June 12, 2008 the City Building Inspector issued an Administrative Report to a committee of City Council recommending, pursuant to s. 324A of the Vancouver Charter, that Council declare the Premise a nuisance and dangerous to public safety and approve a resolution requiring the petitioner to demolish it, remove all demolition debris and put up a chain-link fence around the property within 30 days of the resolution being served on the petitioner. The Report also sought approval to apply for injunctive relief, approval for the building inspector to carry out the work should the owner fail to comply, and approval to have a warning notice placed on title to the property. [17] The Report included the

following: In April of 2006 the building was vacated due to a fire. The electrical service was disconnected at that time. Afterwards, the Coordinated Enforcement Division carried out an inspection of the building to determine whether it could be re-occupied. The inspection revealed that the building had been previously altered without permit or approval and that additional unauthorized residential units were installed in contravention of the Zoning and Development and Building By-laws. Further, it was noted that in addition to the fire damage, portions of the building (stairs, support posts, doors, eavestroughs and downspouts) were in a rotten/dilapidated condition and that there were serious violations of the Electrical By-law throughout the building. Close to one year after the fire, the owners obtained a building permit to commence repairs, however, no work was carried out and the permit was expired in October of 2007. The owners subsequently submitted a new application for building permit in December of 2007 at which point it was determined that the application could not be processed as full development permit approval must first be obtained for this non-conforming building. Accordingly, the building permit application was refused. Since the fire in 2006, the owners have not monitored the property to ensure that it remains in a secure condition. This department has

responded to several complaints from neighbouring residents about squatters living in the building and on the property. Squatters have been vacated by the City and Police and the building has been boarded-up by the City on several occasions. Following refusal of the building permit, the owner was sent written notification from the City Building Inspector requesting that the building be demolished. The owner's architect subsequently contact staff to advise that the owner would like to obtain permits to re-occupy the building. The architect was advised that there is a long history of non-compliance with this owner (who owns many residential properties throughout the city). Based on past history the city has no confidence that this owner will: a) obtain the required permits in a timely fashion; b) carry out the necessary repairs and restoration of the building within a reasonable timeframe; c) carry out regular maintenance of the building after occupancy approval; d) maintain the legal occupancy of the building.

CONCLUSION The building in its present state is unsafe, dilapidated and is an eyesore. The use of the building has been changed and does not comply with the current RT-8 District Schedule. The security of the building is not being maintained by the owners. It is attracting squatters and has been broken into on several occasions. It is a detriment to the neighbourhood and is becoming a drain on City resources. It is therefore recommended that Council declare the building a nuisance and order the registered owner to demolish the building and provide a chain-link fence around the perimeter of the site afterwards to prevent dumping. Although the property is not currently listed for sale, it is recommended that a 336D Warning to Prospective Purchasers be filed on Title in the Land Titles Office to warn any prospective purchasers that there are violations of the Zoning and Development, Building, Standards of Maintenance and Electrical By-laws and that there is a demolition order of Council against the property. [18] The Report recommended that Council pass a resolution concerning the following provision: 1. THAT the building at 1847 Larch Street, Lot A, (Reference Plan 294) of Lots 11 and 12, Block 220A, District Lot 526, Plan 1058, PID 014-980-924 is a nuisance and dangerous to public safety pursuant to Section 324A of the Vancouver Charter. [19] On June 23, 2008 Mr. McEwen

attempted to submit a development permit application for the retention of the existing 12-unit rooming house. The application was not accepted as the matter of the Premise being declared a nuisance and the demolition order were on Council's agenda for June 26, 2008. [20] Mr. McEwen as well as Mr. Creighton, counsel for the petitioner, attended the meeting of City Council on June 26, 2008 at which the Administrative Report was considered. They made submissions as did a number of members of the public, some of whom spoke in favour of retaining the existing building given its historical and heritage status. Ms. Robbins, the City's Manager of Property Use Inspection Branch spoke to the reasons City staff had made the recommendation. [21] City Council approved the recommendation contained in the Report and passed the resolution. The resolution reads in part: 1. THAT the building at 1847 Larch Street, Lot A, (Reference Plan 294) of Lots 11 and 12, Block 220A, District Lot 526, Plan 1058, PID 014-980-924 is a nuisance and dangerous to public safety pursuant to Section 324A of the Vancouver Charter.

2. THAT the registered owner is hereby ordered to pull down and demolish the building , remove all demolition debris from the site and thereafter provide a chain-link fence around the perimeter of the site, within 30 days of a copy of the resolution being served pursuant to Section 324A of the Vancouver Charter.

3. THAT in the event that the owner fails to comply with this order of Council, Council further orders and hereby authorizes the City Building Inspector or his designate, to pull down and demolish the building, remove all demolition debris from the site and thereafter provide a chain-link fence around the perimeter of the site pursuant to Section 324A(1) of the Vancouver Charter. [22] Council instructed the City Building Inspector to withhold action regarding the Order on the condition the petitioner apply for development and building permits. Those conditions included: a requirement she post a $100,000 letter of credit to the City and commit to submitting a "viable" application for building and development permits to carry out the repairs and upgrading to the Premise by no later than August 31, 2008; she maintain the building and yard in a neat and secure condition; she commence repairs immediately upon issuance of the permits; and obtain other permits and licences as necessary. The City would retain the right to cash all or part of the letter of credit to secure the building, clean up the site or demolish the building if all terms of the Resolution were not complied with. [23] The petitioner agreed with these terms and signed a Letter of Commitment to that effect. [24] Mr. McEwen submitted a combined application for redevelopment on August 27, 2008. [25] Mr. McEwen was

advised by the City's project co-ordinator in September that the City had reviewed the application and that one of the units fell below minimum unit size and a room on the lower level was not reflected on old plans and therefore would not be permitted. The City requested copies of revised plans by October 22, 2008. It is unclear whether such plans were submitted. [26] The petitioner says the development permit issued in 1976 permitted the room on the lower floor. The City's position is that the Premise was a non-conforming use and that pursuant to s. 568(3) of the Vancouver Charter any application to rebuild must conform to current by-laws. [27] In a meeting on October 20, 2008 the City advised Mr. McEwen and the petitioner the project would require extensive rebuilding including internalizing all external exit stairs, removing the rear room, and adhering to the RT-8 Guidelines and the 2007 Vancouver Building By-Law. According to Mr. McEwen, as a result of the City's conditions it became impossible to meet minimum unit size requirements as well as internalize all exit stairs for the suites while at the same time maintaining the proposed nine dwelling units for the development. [28] On February 6, 2009 the City issued a "prior to letter" approving the application for permits subject to a number of design, landscaping and other conditions. The design conditions permitted eight

self-contained dwelling units but required the deletion of "unauthorized" additions to the front and rear of the building and the restoration of an open porch at the front of the Premise. In material filed on the hearing of this application a representative for the City deposed the issue was not that the additions were unauthorized but, rather, that the City wanted them removed such that the restoration would be in keeping with the original character of the building. The City also took the position that the exterior exit stairs were not acceptable. [29] The City required a conforming application to be filed by March 9, 2009. The City advised the petitioner that if such an application was not forthcoming by that date the application "may stand refused" and that "due to on-going enforcement, time extensions will not be granted". [30] The petitioner took issue with the City planning staff's interpretation of the RT-8 Guidelines underlying the above conditions; taking the position the City's interpretation was unreasonable and inflexible. Further, as stated, the petitioner viewed a number of the City's requirements as contrary to the Development Permit it had received in 1976 approving both the rear addition and front porch enclosure. [31] The petitioner did not respond to or file drawings or documents in response to the February 6 letter from the City. Accordingly the City issued

a Development Permit Refusal dated March 11, 2009. [32] On Mr. McEwen's recommendation, the petitioner appealed the refusal to the Board of Variance. Mr. McEwen filed written submissions with the Board, [33] At the hearing before the Board of Variance on April 15, Mr. McEwen and the petitioner's counsel made representations as did a representative of the City's by-law enforcement division. A number of residents also appeared and made representations. Many of the residents were opposed to the appeal and expressed concern with the run-down and ill-kept state of the building and yard and the fact the petitioner had done little to maintain the Premise in a tidy or secure condition over the years. At the conclusion of the hearing the Board declined to grant the appeal. [34] The petitioner says the Board's focus was not on the legality of the conditions the City was imposing but, rather, on the complaints of the neighbours which focused on the conduct of the tenants or squatters who had occupied the Premise since the fire. [35] On April 22, 2009 the Chief City Building Inspector issued a demolition order ("Demolition Order") advising the petitioner that as she had failed to comply with the conditions outlined in City Council's Resolution of June 26, 2008. She was ordered, pursuant to that resolution to: 1. to pull down and demolish the building; 2. Remove all demolition debris from

the site; 3. Provide a chain-link fence around the perimeter of the site ON OR BEFORE JUNE 30, 2009 [36] The Demolition Order noted the site was infested with vermin and the petitioner was required to retain the services of a company to address this issue. The petitioner was advised if she failed to complete the demolition, the City would carry out the demolition on or about the week of July 13, 2009 at the cost of the petitioner. [37] This action was commenced by the petitioner shortly thereafter. The parties have agreed to put the demolition on hold pending this decision.

CONSIDERATION OF THE ISSUES [38] The petitioner challenges the City's Order declaring the Premise to be a public nuisance and ordering it be demolished. The petitioner says the City failed to recognize she had a valid and subsisting development permit issued in 1976, authorizing the use of the Premise as it existed before the fire. As a consequence the City was in error or acted in bad faith in insisting on a new development permit which required adherence to the 2007 Vancouver Building By-Law and RT-8 Guidelines before issuing a building permit. According to the petitioner, these are discretionary guidelines rather than mandatory requirements. In addition the petitioner argued the City's action in cutting off electricity to the building following the fire exacerbated the condition of the Premise. [39] The first question is whether the City had the jurisdiction to make the Order. While the petitioner seeks to challenge the Demolition Order made April 22, 2009 by the Chief Building Official, the Order made by City Council declaring the Premise a nuisance and ordering it to be demolished was made pursuant to s. 324A of the Vancouver Charter on June 26, 2008. That Order imposed conditions and instructed the Building Inspector to withhold action to allow the petitioner time to comply with the conditions. When the petitioner did not comply the Chief Building Official implemented

Council's earlier resolution. [40] Accordingly, the order I intend to address is that made by Council on June 26, 2008. [41] The City's jurisdiction to make such an order is well founded in Part XIV (Nuisances), s. 324A of the Vancouver Charter which provides: 324A. (1) The Council may, by resolution or by by-law, declare any building ... a nuisance or dangerous to the public safety or health, and may, by such by-law or resolution ... order that the same shall be removed, pulled down, ... as the Council may determine ... within such time after the service of the order as may be therein named....The Council may, by such by-law or resolution, further order that, in case of default by the owner, agent, lessee, or occupier to comply with the order within the period named in such order, such removal, pulling down ... shall be done by any officer of the corporation authorized for that purpose ... at the cost of such owner ... [42] In my view the City's Order fell fully within the jurisdiction of the City under the powers granted to it in s. 324A of the Vancouver Charter. [43] The next question that arises is the standard of review which applies to the City's decision to declare the Premise a nuisance and order it be demolished. This issue was considered in Hastings Park Conservancy v. Vancouver (City), 2008 BCCA 117, in which Tysoe J.A. succinctly stated, at para. 34: ...The standard

of review with respect to decisions made by the Council within its jurisdiction is patent unreasonableness: Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342 (which, as a result of the recent decision in Dunsmuir v. New Brunswick, 2008 SCC 9, is now simply to be referred to as "unreasonableness" without the adjective "patent"). [44] I turn then to consider whether the decision by the City was unreasonable. In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada discussed the two then prevailing standards of review of reasonableness simpliciter and patent unreasonableness and the analytical approach to be followed by the courts to determine which standard applies in a given circumstance. The court collapsed the two into a single standard of "reasonableness" and in doing so discussed the meaning of the revised standard at paras. 46 to 47: [46] What does this revised reasonableness standard mean? Reasonableness is one of the most widely used and yet most complex legal concepts. In any area of the law we turn our attention to, we find ourselves dealing with the reasonable, reasonableness or rationality. But what is a reasonable decision? How are reviewing courts to identify an unreasonable decision in the context of administrative law and, especially, of judicial review? [47] Reasonableness is a deferential standard animated by the principle

that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [45] The "deferential standard" to be applied in each case is an inherent part of the application of the test of reasonableness. The deferential standard will vary according to the nature of the adjudicative body and the function such body is performing. Some bodies are specialized tribunals utilizing particular expertise and experience. The courts are inclined to give an increased amount of deference depending upon the level of expertise of the decision-making tribunal. In Dunsmuir, the majority elaborated on the

concept of deference at paras. 48-49: [48] The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference "is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers" (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 596, per L'Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of "deference as respect" requires of the courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision": "The Politics

of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L'Heureux-Dubé J.; Ryan, at para. 49). [49] Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference "recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J. Mullan, "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p.

93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. [46] Binnie J. In a concurring judgement stated, at paras. 135-137: [135] The distinction between reasonableness simpliciter and patent unreasonableness was not directed merely to "the magnitude or the immediacy of the defect" in the administrative decision (para. 41). The distinction also recognized that different administrative decisions command different degrees of deference, depending on who is deciding what. [136] A minister making decisions under the Extradition Act, R.S.C. 1985, c. E-23, to surrender a fugitive, for example, is said to be "at the extreme legislative end of the continuum of administrative decision-making" (Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p. 659). On the other hand, a ministerial delegate making a deportation decision according to ministerial guidelines was accorded considerably less deference in Baker (where the "reasonableness simpliciter" standard was applied). The difference does not lie only in the judge's view of the perceived immediacy of the defect in the administrative decision. In

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, a unanimous Court adopted the caution in the context of counter-terrorism measures that "[i]f the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove" (para. 33). Administrative decision makers generally command respect more for their expertise than for their prominence in the administrative food chain. Far more numerous are the lesser officials who reside in the bowels and recesses of government departments adjudicating pension benefits or the granting or withholding of licences, or municipal boards poring over budgets or allocating costs of local improvements. Then there are the Cabinet and Ministers of the Crown who make broad decisions of public policy such as testing cruise missiles, Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, or policy decisions arising out of decisions of major administrative tribunals, as in Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 753, where the Court said: "The very nature of the body must be taken into account in assessing the technique of review which has been adopted by the Governor in Council." [137] Of course, the degree of deference also depends on the nature and content of the question. An adjudicative tribunal

called on to approve pipelines based on "public convenience and necessity" (Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322) or simply to take a decision in the "public interest" is necessarily accorded more room to manoeuvre than is a professional body, given the task of determining an appropriate sanction for a member's misconduct (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20). [47] In my view the degree of deference to be adopted in reviewing the City's Order falls at the higher end of the scale of deference. I reach this conclusion for several reasons. [48] First, as already stated, the decision made by the City falls within a specific power granted to the City pursuant to s. 324A of the Vancouver Charter. The legislature has specifically delegated this decision making power to Vancouver's City Council. [49] Second, s. 148 of the Vancouver Charter contains a strongly worded privative clause sheltering its resolutions from reviews in court "on account of the unreasonableness or supposed unreasonableness of its provisions". While the section cannot oust review by the court, it is indicative of the legislature's intent to protect the political and administrative functions of the City as much as possible from judicial review. Accordingly, a high degree of deference ought to be accorded to decisions made in the exercise of

such functions. [50] The decision of the Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, is instructive in this regard. Nanaimo City Council passed resolutions declaring a pile of soil on Rascal's property a nuisance pursuant to the Municipal Act, R.S.B.C. 1979, c. 290, and ordered the company to remove it. Rascal failed to comply and the city brought a petition for a declaration it was entitled to access to the property to remove the soil. The petition was granted. Rascal then brought a petition seeking to quash the city's resolution. The Supreme Court of Canada, in reversing the British Columbia Court of Appeal, dismissed Rascal's petition concluding that Nanaimo's resolution was not patently unreasonable. In doing so Major J. said, at paras. 35-38: 35 In light of the conclusion that Nanaimo acted within its jurisdiction in passing the resolutions at issue, it is necessary to consider the standard upon which the courts may review those intra vires municipal decisions. Municipal councillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipal councils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra vires decisions. The reality that municipalities often balance

complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferential standard. 36 Kruse v. Johnson, [1898] 2 Q.B. 91 (Div. Ct.), has long been an authority in Canadian courts for scrutinizing the reasonableness of municipal by-laws. There, Lord Russell of Killowen offered the courts some cautionary language on findings of unreasonableness (at p. 100): A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges. Or as more recently expressed in Shell, supra, per McLachlin J., at p. 244: Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens

for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives. 37 I find these comments equally persuasive in the scrutiny of municipal resolutions. The conclusion is apparent. The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness. 38 An example of legislative intent in the review of municipal by-laws or resolutions is found in the Province of Alberta where the province seeks to shield it's municipalities from a challenge on unreasonableness alone. See the Municipal Government Act, S.A. 1994, c. M-26.1, that states: 539 No bylaw or resolution may be challenged on the ground that it is unreasonable. [51] While Nanaimo preceded the Supreme Court of Canada's decision in Dunsmuir it is clear the test of reasonableness would have applied with the same result. [52] In Vernon (City) v. Sengotta, 2009 BCSC 70, Blair J. applied the same reasoning to uphold a municipal resolution

requiring the plaintiffs to demolish fire damaged premises, holding the city's decision was a reasonable one and one to which the court should defer "given the council's knowledge and experience with respect to its community's needs and requirements" (para. 54). WAS THE CITY'S ORDER TO DEMOLISH UNREASONABLE? [53] As stated earlier, the Order in this case was made in response to recommendations contained in an Administrative Report issued May 9, 2008 by the City Building Inspector to the City's Standing Committee on Planning and Environment. In addition to the recommendation for the Order, the Report discussed the background and reasons for the recommendation which I have set out above. [54] The materials filed by the City in response to the petitioner's application support the conclusions drawn in the Report. Ms. Shepherd, a Property Use Inspector, inspected the property April 7, 2006 in response to complaints received by the City. She found tenants from the basements suites living in tents in the yard, as well as discarded furniture and other debris. She also noted the basement suites were illegal, not having been approved by the City. [55] A co-ordinated inspection team visited the Premise on April 19, 2006 and, in addition to the condition of the grounds, found a number of unapproved alterations had been made to the Premise. The building was again inspected May 26, 2006 and

found to be in the same condition. On June 9, 2006 the City issued an order to the petitioner under the Untidy Premises By-law requiring her to "remove the accumulation of rubbish and discarded materials and to cut the overgrown grass/weeds". An inspection of June 20, 2006 showed the order was complied with. [56] On November 7, 2007, in response to complaints from neighbours, Ms. Shepherd attended the Premise and found some of the doors open or broken, the exterior stairs to be unsafe and the yard again littered with debris. The City boarded up the Premise the following day. The petitioner was advised by an order issued by a City Building Inspector on November 23, 2007 that the building was certified to be in an unsafe condition and had been boarded up. [57] The City inspected the Premise again on November 30, 2007 and found two doors unsecured. Again the Premise were boarded up by a city contractor. Again the petitioner was sent an order, on December 21, 2007, in the same form as that sent on November 23. [58] On February 18, 2008 the Premise was inspected again in response to complaints from neighbours about squatters living in the house. Ms. Shepherd found the building had deteriorated since she had last attended. The board-ups had been removed and persons had been living in the Premise. The yard was full of debris. Pictures taken of the interior of the house show it was in

a state of significant disrepair. Once more the building was boarded up by the City and an order was sent to the petitioner on February 25, 2008 in the same terms as the earlier orders. Ms. Shepherd inspected the Premise on March 10, 2008 and noted no change in the condition of the house or yard. [59] As related earlier, the City Building Inspector issued an order to the petitioner on March 17, 2008 "requesting" the petitioner to demolish the building by April 14, 2008 because it was a nuisance and dangerous to the public. The basis for requiring the demolition was "the extensive by-law violations, unauthorized suites and the ongoing problems with squatters". The petitioner was advised if she did not comply the matter would be placed before City Council to request they declare the building a nuisance under s. 324A of the Vancouver Charter. [60] The City again inspected the site on April 15, 2008. No steps had been taken to comply with the order and accordingly the report and recommendations were prepared and forwarded to Council to consider. [61] Another complaint of squatters living in the Premise resulted in a further inspection on May 22, 2008. The house was in the same condition. Squatters had removed a boarded up portion and entered the house. The yards were overgrown and littered with rubbish and discarded items. Again an order in similar terms was sent to the petitioner.

Ms. Shepherd notes that when she attended the Premise on June 4, 2008 the majority of rubbish had been removed and the overgrowth had been cut. [62] Several persons who owned property or lived in the neighbourhood swore affidavits describing the physical state of the property as consistently ill-kept and run down, with numerous visits by the police regarding vagrants and squatters using the property. The property was described as being infested with vermin. A fence erected to keep the property secure "was of no value whatsoever" in keeping people out of the property. One neighbour described the Premise as "a rat-infested shambles." Two neighbours had resided in the vicinity for 30 years and said the ill-kept nature of the Premise had existed since the late 1970s. Photographs taken by various City Inspectors support the conclusions drawn in the Administrative Report submitted on City Council and the descriptions of the Premise attested to by persons living in the neighbourhood. [63] The petitioner was put on notice of the state of the Premise a number of times but chose to ignore the various notices sent by the City. She did not obtain a building permit to restore the Premise until some eight months after the fire in December 2006. She then let that permit expire and did not do anything further to seek a permit until one year later in December 2007, some 17 months after the

fire. [64] While the petitioner pleads she was in ill health and not able to attend to matters affecting the Premise, it would have been a simple matter for her to arrange for a clean-up of the house and yard if she had interest in doing so. It appears she had little such interest. Some effort was made to clean up the yard in June 2006 and June 2008. In the interim the petitioner chose not to maintain the Premise and to ignore the City's requests she do so. She did not live up to the Letter of Commitment she signed in July 2008 when the City deferred demolition on the condition she maintain the Premise. She adduced no evidence she was prevented from doing so or why she acted in contravention of the City's numerous orders to clean up the Premise and ensure they were in a safe and secure condition, as was her responsibility. [65] I conclude the City acted within its statutory powers provided in s. 324A of the Vancouver Charter and, based on the evidence before me, acted reasonably in declaring the Premise a nuisance and threat to public safety on June 26, 2008 and in ordering them to be demolished. Discussion of the "prior-to conditions" [66] The petitioner claims the City erred on a number of other grounds which should result in striking down the resolution. I will consider these grounds in order. [67] The petitioner says she was given an unreasonable time by the City to file

her revised application for development and building permits by no later than August 31, 2008. Mr. McEwen deposed that "while this was a limited time to put forward the required application" he did manage to submit the application by August 27, 2008. There is nothing in the material before me to suggest Mr. McEwen could not meet the deadline required by the City or that any extension to such deadline was sought. I do not accept the petitioner's position the City acted unreasonably when it set August 31, 2008 as the time the application was required to be submitted. [68] The petitioner argued the City "made it impossible for the petitioner to comply with the August 31, 2008 condition" when it did not provide "prior-to conditions" until February 9, 2009. In my view this ground has no substance. The petitioner was well aware the application made on August 27, 2008 would go through a rigorous review by the City's planning, building and development departments. The building was non-conforming, was subject to the application of discretionary development guidelines and had a number of additions (e.g. sleeping units in the basement) which did not comply with permits granted in 1975, or with the new Vancouver Building By-law and RT-8 Guidelines. The submission of the plans on August 27, 2008 simply triggered the beginning of a process. As Mr. McEwen noted in his affidavit "The subject

application was certainly not an uncomplicated DP application and could be considered in many aspects to be quite complex." The petitioner was initially advised the City's processing could take up to 14 weeks, was then given a date of December 18, 2008 and the final "prior-to" letter was not issued until February 6, 2009. However, in the interim, there were a number of communications between City planning staff and Mr. McEwen concerning the City's requirements. Most if not all of the contentious items had been identified early on in the process. The petitioner was well aware during this process of the City's requirements ultimately set out in the February 6, 2009 letter and was not prejudiced as a result of any term in that letter. Was the non-conforming use "discontinued" [69] The petitioner argues the City erred by imposing illegal conditions in its prior-to approval letter relating to the removal of the front porch enclosure and the rear room area because these were legally approved by DP 69749 on April 24, 1975 and Building permit B79619 issued June 22, 1976. The petitioner argues that while the use is now non-conforming with present by-laws, the use is protected under s. 568 of the Vancouver Charter. The City argues such non-conforming use was lost because s. 568(3) of the Vancouver Charter provides that a lawful non-conforming use is lost if such use is "discontinued" for

90 days. Any future use is required to conform to current by-laws. Under the current building by-laws and RT-8 Guidelines the City required the Premise restored in conformity with the original character of the building. [70] The petitioner relies on two authorities to support her argument she did not "discontinue" her non-conforming use: Capital Regional District v. Smith (1998), 168 D.L.R. (4th) 52 and Cowichan Valley v. Yole, [1998] B.C.J. No. 2448, 41 M.P.L.R. 79 (C.A.). In my view neither case supports the petitioner's position. In Capital Regional District the facts were quite different from those in the present case. Hall J.A., speaking for the court, held the case was "one of those rare cases where the court can exercise its discretion" (para. 24) to refuse to grant a mandatory order of destruction because of the unique circumstances noted in the decision. The case before me does not raise the same fairness considerations which call for the exercise of such discretion. [71] In Cowichan Valley the Court of Appeal accepted several decisions from Ontario which supported the view that "commitment to a use is equivalent to a use for the purpose of the lawful non-conforming use provision" of a planning act. The facts underlying that case are very different from those in the present case. In Cowichan Valley there was no issue of discontinuance of use or of nuisance before the

court. In the present case the petitioner, as stated, did nothing following the fire to demonstrate she was interested in maintaining the Premise as a rooming house for some eight months. She did not apply for a building permit or a repair permit or even attend to the cleaning or regular maintenance of the Premise. I find as a matter of fact she had "discontinued" use of the Premise for a period of 90 days. [72] Section 568(3) reads: (3) A lawful use of premises existing at the time of coming into force of a zoning by-law, although such use is not in accordance with the provisions of the by-law, may be continued; but, if such non-conforming use is discontinued for a period of ninety days, any future use of those premises shall be in conformity with the provisions of the by-law. The Board of Variance may extend the aforesaid period of 90 days to a maximum of 180 days. [73] As will be noted, the section refers to discontinuance for a specified period of time. It does not refer to discontinuance of use simpliciter, which implies there need be an intention to abandon the non-conforming use. A discontinuance for a period of time means the right to use the premises as a non-conforming use is lost simply by ceasing to use it for that period of time: see Saint John (City) v. Killam (1973), 6 N.B.R. (2d) 642 (C.A.) at 646. [74] Accordingly, I find the City was correct in determining the

petitioner was required to comply with its current building and development by-laws. [75] While the RT-8 Guidelines are discretionary, the exercise of such discretion falls to the City's planning and building permit departments subject to an appeal to the City Board of Variance. I am unable to conclude on the facts of this case the either the City's planning or building departments or the Board of Variance acted unreasonably or in bad faith in applying the Guidelines. The Board of Variance is the political body charged with the overview of the City's planning and development decisions. The Board gave the petitioner's representatives a full opportunity to make both written and oral submissions. The Board took those submissions as well as those made by the City and others present into consideration in making its decision. I am unable to conclude the decision was unreasonable in the context of the deference which should be shown to municipal bodies in the exercise of their planning functions. For the reasons expressed this Court should grant a high degree of deference to decisions made by those who are familiar with and responsible for planning issues in their community. Extension of time for issuing permits [76] The petitioner seeks an order this Court direct City Council to hear submissions from the petitioner to extend the time for issuing development and building permits and

to extend time for completion of required work on the Premise. In my view, the court does not have such jurisdiction. The petitioner cited no authority to support this ground of relief. In my view, the court should not direct how Council should conduct its business beyond determining whether, on review, it has acted within its jurisdiction and if so has it acted unreasonably given the parameters set out above. As stated, I have found Council's decision not to have been an unreasonable one. Council deferred implementation of the Order pending the petitioner complying with set conditions. Those conditions required her to comply with current development and building by-laws. The petitioner has chosen not to meet those conditions and she has lost her appeal to the Board of Variance.

CONCLUSION [77] For the above reasons the petition is dismissed. "GREYELL J."