Sauve v. McKeage et al.

2006 BCSC 781 Sauve v. McKeage et al

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sauve v. McKeage et al., 2006 BCSC 781 Date: 20060412 Docket: 70231 Registry: Kelowna Between: Holly Denise Sauve Plaintiff And: Bill McKeage, Fortis B.C. and Strata KAS2623

DEFENDANTS Before: The Honourable Mr. Justice Brooke Oral Reasons for Judgment (In Chambers) April 12, 2006 Counsel for B. McKeage and Fortis B.C.: J. Metherell Counsel for Strata KAS2623: S. Andrew Appearing on her own behalf: H.D. Sauve Date and Place of Hearing: April 11, 2006 Kelowna, B.C. [1] THE COURT: The plaintiff and the defendant, Mr. McKeage, are owners of adjoining strata lots within Strata Plan KAS2623. The defendant is employed by Fortis B.C. ("Fortis"), an electrical utility company, and his duties include a call schedule of some eight weeks per year when he may be called out after normal business hours on emergency service calls. When on call, he parks a truck belonging to Fortis in the driveway within his strata lot. It is common ground that the truck is a commercial vehicle and that its load capacity is much greater than three-quarters of a ton. [2] The strata lots owned by the plaintiff and the defendant are each bound by a statutory building scheme registered in the Land Title Office under No. K14521. The plaintiff seeks to enforce the statutory building scheme against the defendant, Mr. McKeage, and seeks injunctive relief restraining him from contravening a provision of that statutory building scheme. She also seeks injunctive relief against the defendant strata corporation, compelling enforcement of the statutory building scheme. [3] While the statement

of claim asserts a claim for damages, as well as an order against Mr. McKeage's employer, Fortis, in respect of Mr. McKeage's use of their truck, no evidence was led in respect of these claims and they were not pressed. The statement of claim also alleges facts which may be seen to support a claim in private nuisance. [4] I now turn to the facts. The statutory building scheme consists of four pages registered in the Land Title Office. The first page is the declaration of the developer, Sunset Ranch Golf Developments Ltd. In Trust, creating the building scheme in respect of the lots described in Schedule A (which are 29 strata lots in number) and enumerating the restrictions described in Schedule B. There is on the first page a declaration that the restrictions shall be for the benefit of all the lots. [5] I now turn to Schedule B, which is divided into four parts consisting of site requirements, building design, general regulations, and transfer and expiration. The general requirements include para. 3.3, which is central to the plaintiff's position, and says this: Storage: No boats, trucks or recreational vehicles of any kind whatsoever, salvage materials or goods intended for commercial use or sale, nor junk or partially dismantled motor vehicles shall be stored on a Lot other than in an enclosed garage or other suitable enclosed space. [6] There are nine other general

requirements addressing such questions as livestock, trailers, satellite dishes, signs, subdivision and the placement of laundry. [7] The plaintiff relies upon this provision, as well as a provision in the design guidelines, sometimes referred to in Parts 1, 2 and 4 of Schedule B and exhibited to the affidavit of the defendant, Mr. McKeage. The design guidelines include para. 26, which is titled "Site Restrictions" and says this: Trailers, boats, recreational vehicles and commercial vehicles in excess of 3/4 ton capacity may not be stored anywhere on the lot or in the community except where specified by the DEVELOPER. [8] In the case of both Schedule B to the statutory building scheme and the design guidelines, the central question is whether the Fortis truck used by the defendant, Mr. McKeage, is "stored" on his lot or, if the design guidelines apply, as the plaintiff contends, in the community. The plaintiff says that storage simply means preserved for later use, and as I understand it, this definition is given in the Merriam Webster Dictionary. [9] The defendant, Mr. McKeage, takes quite a different view and says that storage means something more than transitory or fleeting, and reference is made to the decisions of this court and the Court of Appeal as authority for that proposition. First of all, the defendant Mr. McKeage relies upon Capital Regional District v. Mattison,

[1987] B.C.J. No. 2137 (S.C.), where a restrictive covenant was considered which prohibited unenclosed storage or any use. There, His Honour Tyrwhitt-Drake, as he then was, said this: In my opinion, storage as a concept implies a certain degree of permanence, more, certainly, than in the case of perishable merchandise displayed outside a shop in portable form. These plants, then, are not in storage. [10] In a subsequent decision of this court, Strata Plan No. LMS44 v. RBY Holdings Ltd., [1993] B.C.J. No. 2251, Madam Justice Newbury (as she then was) considered the decision in Mattison and said this at para. 16: As far as "storage" is concerned, the same reasoning applies. First, since I read paragraph 7 to be referring to the storage, manufacture or processing of commercial goods or products of some kind, the word is not applicable. Second, I infer that the word in this context is intended to refer to longer-term storage than the temporary moving of a human body into premises for embalming and shipment out. The purpose of bringing the bodies onto the premises is not to "store" them but to prepare them for burial or cremation. I have already noted Mr. Justice Drake's comments to the effect that "storage" generally implies something less transient or fleeting and suggests that this is not storage in the sense that a commercial parking lot, with cars going in and out, is not

normally described as a place for the "storage" of cars. In the result, I would conclude that the operation of a mortuary does, and the operation of a crematorium would, contravene the terms of the building scheme... [11] The decision of Madam Justice Newbury was referred to and affirmed by the Court of Appeal in Strata Plan No. LMS44 v. RBY Holdings Ltd., [1994] B.C.J. No. 3290. [12] On the evidence before me, Mr. McKeage only leaves his truck in the driveway of his strata lot when he is on call. That amounts to about eight weeks per year. He was called out eight times in 2005 between midnight and 7 a.m. The truck has an alarm which is activated when the vehicle is placed in reverse gear, but it has been modified in such a way that it can be disengaged so that the alarm is not activated when the truck is backed out. This is an aspect of greater importance in the question of common law or private nuisance. [13] I find that the use of the lot for the purpose of parking the truck while on call is transitory and intermittent in nature, and does not amount to storage within the meaning of Schedule B. [14] I find that the design guidelines do not form part of the statutory building scheme, except where those design guidelines are specifically referred to therein. Thus, I confine my consideration to para. 3.3 of the statutory building scheme. [15] While it is not necessary for the

purposes of the matter before me to do so, it may be helpful to say that parking the truck overnight each day for a week, and for only eight weeks in all in one year, does not, in my opinion, rise to the storage of the truck on the lot for those times. However, if the truck were parked, for example, for eight consecutive weeks in any year, the result might very well be different. [16] I am satisfied that the plaintiff does have standing to apply to enforce the statutory building scheme, and that the statutory building scheme runs with the land in accordance with its terms until its expiry in January 2018. [17] I now turn to the question of nuisance. I find that the parking of the truck, and its use, does not constitute the tort of a private nuisance. A useful definition of private nuisance can be found in Royal Anne Hotel Co. Ltd. v. Village of Ashcroft (1979), 95 D.L.R. (3d) 756 (B.C.C.A.), where Mr. Justice McIntyre (as he then was) says this: When then can it be said that the tort of nuisance has been committed? A helpful proposition is advanced by the learned author of "Street, Law of Torts"...in these terms. A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land where, in the light

of all the surrounding circumstances this injury or interference is held to be unreasonable. ... The test then is, has the defendant's use of this land interfered with the use and enjoyment of the plaintiffs' land and is that interference unreasonable? Where, as in the case at bar, actual physical damage occurs it is not difficult to decide that the interference is in fact unreasonable. Greater difficulty will be found where the interference results in lesser or no physical injury but may give offence by reason of smells, noise, vibration or other intangible causes. ... What is an unreasonable invasion of an interest in land? All circumstances must, of course, be considered in answering this question. What may be reasonable at one time and place may be completely unreasonable at another. It is certainly not every smell, whiff of smoke, sound of machinery or music which will entitle the indignant plaintiff to recover. It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that is clear according to the accepted concepts of the day that it should be an actionable wrong. [18] Mr. Justice McIntyre then goes on to say that: Consideration must also be given to the character of the neighbourhood where the nuisance is alleged, the frequency of the occurrence of the nuisance, its duration, and many other factors

which could be of significance in special circumstances. [19] I find, first of all, that the truck or trucks owned by Fortis and used by the defendant, Mr. McKeage, are not offensive to the eye or unsightly, in the sense that the trucks are depicted as in a proper or appropriate state of maintenance and repair, and to put that in another way, do not appear to be dilapidated or in a state of disrepair. [20] I find that the noise (and here I refer to the affidavit of Mr. Marchak, who performed a decibel analysis) does not interfere with the reasonable use or enjoyment by the neighbours of their lands, nor on the comparisons provided by Mr. Marchak can the noise be seen as offensive. [21] It is also to be noted that there is a public interest element in the use of the driveway of Mr. McKeage's strata lot to park the Fortis vehicle, inasmuch as it is tasked to respond to after-hour emergencies which would in some cases, although not necessarily in all cases, involve an interruption of electrical service. However, this is not the principal basis for my decision. [22] It must be remembered that in an urban society (and the condominium regime can be seen as an urban society in microcosm), a certain amount of give and take is necessary among neighbours and between the users, both of the strata lots and of the common property. As Mr. Justice Smith said in Sutherland v. Canada (Attorney

General) (1997), 15 C.P.C. (4th) 329 (B.C.S.C.), dealing first of all with the test for private nuisance: The test is an objective one...that is, whether there is an actionable nuisance will depend in each case upon whether the interference would be substantial, not just with reference to the plaintiff, but with reference to any reasonable person occupying the plaintiff's premises... ...it was observed that the very existence of organized society depended on a generous application of the principle of "give and take, live and let live". [23] I also refer to the decision of Mr. Justice Bauman in Woodman v. Capital (Regional District), [1999] B.C.J. No. 2262 (S.C.), where after applying the decision of Mr. Justice Smith in Sutherland, this is said at para. 111 concerning the case before him: This case is quintessentially one calling for a strong dose of "give and take, live and let live." [24] In the result, the plaintiff's claims are dismissed. [25] The defendants have submitted that the plaintiff's action is tantamount to a frivolous and vexatious one and that her allegations are unfounded and without any substantial basis. The defendants seek costs. I am satisfied that Ms. Sauve, who represented herself throughout this proceeding and made submissions on her own behalf in respect of her claims, was not actuated by either malice or a vexatious spirit but rather endeavouring to

define the boundaries of her own entitlement, as well as the limitations on the use of the other strata lots and, specifically, the strata lot of her neighbour, Mr. McKeage. [26] While I appreciate that there have been significant costs incurred by both Fortis and the strata corporation, this case approaches a public interest kind of a case, where the interest of the plaintiff is not solely limited to her private interest but can be seen as representative of the interests of others. [27] I, therefore, decline to order costs against her, with the exception of the costs incurred by Mr. McKeage, who himself has been brought into this litigation largely without any blame that can be seen on the evidence before me. Accordingly, it is ordered that the costs of Mr. McKeage be paid by the plaintiff and these I fix at $750. [28] Thank you. "T.R. Brooke, J." The Honourable Mr. Justice T.R. Brooke