City of Coquitlam v. Aweryn, et al.

2000 BCSC 777 Citation: City of Coquitlam v. Aweryn, et al.2000 BCSC 777 Date: 20000524 Docket No.: A982471 Registry: VANCOUVER IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CITY OF COQUITLAM PETITIONER AND: BARBARA AWERYN, ABDEL MOUSA, LARRY JOHNSON, JOAN JOHNSON, TONY BELL, SEAN BISHOP, CHARLES ROBICHAUD and C-ANN MERCER RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE MORRISON ( IN CHAMBERS ) Counsel for the Petitioner: Daniel R. Bennett Appearing for the Respondent Owners:Appearing for the Respondent Tenants: Abdel Mousa C-Ann Mercer Date and Place of Hearing: May 11 and 12, 2000 VANCOUVER, BC [1] This application concerns a residential building at 825 Sharpe Street in the City of Coquitlam that has been referred to as a five-plex. It is a dwelling of 3,665 square feet, with five separate apartments contained within, and eight tenants in total. [2] The petitioner, the City of Coquitlam, applies for a number of orders pursuant to ss. 281 and 282 of the Municipal Act, RSBC 1996, c. 323, including a declaration that the respondents are in breach of a City of Coquitlam zoning by-law; for an order that the respondents be enjoined from breaching and continuing to breach the zoning by-law; that the respondents be required to bring the building into compliance with the zoning by-law by removing the illegal suites; and for an order that the building inspector and by-law enforcement officer of the petitioner be permitted to enter the building at such reasonable times as may be necessary for the purpose of conducting an inspection to ensure compliance with the zoning by-law. [3] The respondents, Barbara Aweryn ("Aweryn") and Abdel Mousa ("Mousa"), are the registered owners of 825 Sharpe Street, and the remaining respondents are tenants. Aweryn and Mousa purchased the property in January 1995, at which time it was advertised as a five-plex. A previous property owner in May 1985 had received a building permit to build a single family dwelling on the property, and occupation of the property was ready in time for EXPO 1986. In 1985, at the time of the construction of the building, the then owner was granted a re-zoning of the property from RS-2 to RS-1, as it was his plan to subdivide the lot to build three single family dwellings. The re-zoning was granted in December of that year. The property remains in an RS-1 single family zone under the City's zoning by-law. [4] It is uncertain from the material before me just when the dwelling became a five-plex, but it was certainly a five-plex before the present owners purchased the property in January 1995. Nothing with done with regard to the illegal suites at the property until the City received a written complaint with regard to the property in October 1997. At that time, the City requested an inspection of the premises and, at the same time, increased the utility bill for the property to reflect the fact that it contained five dwelling units instead of one. [5] On April 6, 1998, the City council passed a motion authorizing the commencement of by-law enforcement proceedings against the respondents. [6] Meanwhile, the hot and often controversial topic of illegal suites was of concern to both the municipality and to the public. The petitioner had a study done on the issue of secondary suites in 1997, and a report was issued in February 1998 on secondary suites. That report recommended secondary suites be allowed in the City, with only one secondary suite to be allowed per one-family dwelling. The City of Coquitlam passed a zoning by-law on April 19, 1999, to permit one secondary suite per one-family residential dwelling, on certain terms. Under the present zoning by-law, this residence in question has two legally acceptable suites, and three illegal suites, according to the petitioner. [7] The respondents argue that the City has not prosecuted zoning violations for a long time, in spite of knowing of the number of violations that have existed within the municipality. They allege that it is the known developers who created the alleged violations, but the developers are not being prosecuted but, rather, bona fide purchasers, such as the two owners of this property. [8] The respondents have made a number of arguments, some of them more in the range of political arguments which would be more properly placed before the municipal council rather than this court. However, a number of their arguments are based on legal issues. [9] The respondents Aweryn and Mousa seek the following: 1. A declaration that the practice of the City, of not prosecuting zoning violations which are known to it and only enforcing its zoning by-law upon receiving complaints but not without requiring those complaints to be justified, is unlawful in that it violates the principles of the Rule of Law; 2. A declaration that the practice of the City, of prosecuting persons who buy properties which are alleged to involve zoning or Building Code violations while not prosecuting known developers who created the alleged violations, is unlawful in that it violates s. 15(1) of the Canadian Charter of Rights and Freedoms; 3. A declaration that the practice of the City, of prosecuting persons who buy properties which are alleged to involve zoning or Building Code violations while not prosecuting known developers who created the alleged violations, is unlawful in that it also violates s.225(1) of the Municipal Act [RSBC 1996, c. 323]; 4. A declaration that the City has been in violation of its duty of care towards its citizens by allowing its Building Inspectors to approve changes to the official plans without requiring the Inspectors to document those changes and without having guidelines for its Inspectors regarding the extent of the changes which may be approved without documenting them; 5. A declaration that the City violated its duty of fairness toward Aweryn and Mousa by attempting to hold them liable for the discrepancy between the so-called "Jenish plans" which the City had on file and the existing building and by also refusing to conduct its required February 1998 inspection in accordance with the version of the Building Code which was in effect when the subject building was constructed; 7. A declaration that the City was negligent in failing to implement the June 1, 1984 and November 8, 1985 directives of the Ministry of Environment regarding applying flood plain covenant to the title of the 825 Sharpe Street property; 8. A declaration that public interest and/or fairness considerations favour the continued operation of the property as a five-plex until the end of the useful life of the existing building, i.e. giving it a status equivalent to "legal non-conforming use"; 9. That the court deny all requests of the City and direct to stop harassing the owners and tenants of the property; [10] In saying that the City has engaged in selective prosecution of zoning violations, the respondents argue that the punishment would be out of proportion to the alleged wrong-doing, that it would be poor public policy to sanction a punishment in a situation such as this, which does not really aim to cure the underlying mischief. Further, that the City is engaged in discrimination, and the cost of having to comply with the zoning by-law at this stage would be excessive to the owners and to the tenants. The tenants would be out of affordable housing, and the owners would have to carry out extensive modifications to comply with the zoning by-law, as well as lose approximately $100,000 in value on the property if it were forced to go from a five-plex to a two secondary suite status. [11] I have had an opportunity to go over the material filed in this chambers application, as well as the authorities cited by the parties. I will not detail all of the arguments of the respondents, some of which were more appropriate in the political area as I have stated. There were a number of references to the former mayor of the municipality, which I have likened to suggesting that because the Chief of Police may speed on the highway, no one else should be prosecuted for speeding. Such arguments may elicit sympathy, but not success. [12] Among the several cases cited were Burnaby (City) v. Pocrnic (1999), 6 M.P.L.R. (3d) 250, a decision of our B.C. Court of Appeal, and Polai v. Toronto (City), [1973] S.C.R. 38 (S.C.C.). [13] The cases confirm that the failure to prosecute great numbers of owners of illegal suites is irrelevant. In this case, as in the Burnaby case, I find no basis for concluding there was discriminatory prosecution. Reality tells us that no municipality can prosecute and enforce every by-law with respect to every breach, any more than the police can prosecute every speeder on our highways. [14] But when the City of Coquitlam receives a complaint, that complaint is investigated, as this one was, and the process is begun to find the respondents in breach of the zoning by-law, so there can be an order requiring compliance. [15] Is there is any discretion to refuse to make the order or orders requested by the City, once the breach has been established? I am satisfied that the breach is clearly established. The following remarks of Mr. Justice Esson in the Burnaby decision, para. 15, are relied upon by the respondents: Finally, Mr. Azevedo submitted that the trial judge may have been misled by judicial pronounce-ments in some cases of this kind to the effect that, once a breach is established, there is no discretion to refuse the order. The better view I think is that there is a discretion but, because the right to an injunction is created by statute and because the public interest must be weighed against hardship which the order may impose on the defendants, the scope of the discretion is narrow. That the discretion exists is illustrated by a recent decision of this Court: Capital (Regional District) v. Smith (1998), 168 D.L.R. (4th) 52, 115 B.C.A.C. 76, 49 M.P.L.R. (2d) 159 (B.C.C.A.). [16] In the Smith case, there were 17 cottages on a property, and one was destroyed by fire. The municipality tried to stop the owner from re-building the damaged cottage, and refused to issue a building permit. The court held that it would not be appropriate to order the demolition of the cottage that was in the process of being re-built. The court noted that as the new building was exactly the same as the one that burned down, and its completion would simply restore the group of 17 cottages as they were before the fire, there would be no use in granting such an order. [17] I find the fact situation of this case differs substantially from the Smith situation, and I must conclude first of all that the respondents are in breach of s. 1001(2) of the City of Coquitlam zoning by-law No. 3000, 1996. [18] There will be an order that the building inspector and the by-law enforcement officer of the petitioner be permitted to attend the building and enter the building at any reasonable time for the purpose of conducting an inspection. There will also be liberty for the petitioner to re-apply to the court following the inspection. [19] The respondents have submitted that this is a case where it would be appropriate for the court to delay implementation of enforcement of the zoning by-law. They have asked that that delay extend to the end of the useful life of the existing building. The building is only 14 years of age, so that would extend it to a period of time that would amount to no enforcement. [20] However, the owner respondents have the option of applying to the City to develop the property in a manner that would legalize the three remaining suites. Mr. Mousa, on behalf of the respondents, has estimated that that process would take approximately 18 months. He is pessimistic that he will be successful, but that is not something that I can determine. [21] I do think it is appropriate in this situation that the discretion of the court be given to the respondents with regard to the timing in which they must bring the building into compliance with the zoning by-law, by either removing the three illegal suites, or proceeding with their application to try and legalize the three remaining suites. [22] Counsel for the petitioner has recognized that the enforcement of this injunction will cause inconvenience to the tenants, and submitted that two months would be an appropriate period to minimize that inconvenience, to allow the tenants to arrange time to find new accommodation. Because of the history of this dispute with regard to this property, I think a more appropriate period would be 18 months. This would not only minimize the inconvenience to tenants, and certainly allow them time to arrange comparable accommodation, if that is necessary but, more important, it would allow the owners, Aweryn and Mousa, an opportunity to see if they can obtain the necessary changes in permission to legalize the remaining three suites. If that is not possible, then it will allow them time to convert the building into two remaining suites in order to comply with the zoning by-law. The 18 month period will commence May 15, 2000. [23] The respondents' applications for all other orders are dismissed. [24] There will be an order that the respondents be required to bring the building into compliance with the zoning by-law 18 months from May 15, 2000, unless the respondents have been successful in obtaining permission to legalize the remaining three suites in the interval. [25] Each party will pay their own costs. "N. Morrison, J." The Honourable Madam Justice N. Morrison