Surrey (City) v. Gill

2023 BCSC 2114 Surrey (City) v. Gill

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Surrey (City) v. Gill, 2023 BCSC 2114 Date: 20230718 Docket: S249252 Registry: New Westminster Between: City of Surrey Petitioner And Jaskaran Singh Gill Respondent Before: The Honourable Mr. Justice Taylor Oral Reasons for Judgment In Chambers Counsel for the Petitioner: A. Wu W. Aujla The Respondent Appearing on own behalf: J. Singh Gill Place and Date of Hearing: New Westminster, B.C. July 18, 2023 Place and Date of Judgment: New Westminster, B.C. July 18, 2023 [1] THE COURT: The respondent, Mr. Gill, is the registered owner of a residential property at 7685 125 Street in Surrey, BC. ("the Property"). The petitioner, City of Surrey ("the City"), is a municipal corporation with the responsibility and authority to regulate construction in the City. [2] Mr. Gill has recently constructed a two‑storey addition to the pre‑existing home on the Property ("the Addition"), which occupies the substantial portion of the rear yard area. The uncontested evidence on the application was that Mr. Gill has constructed the addition without a building permit in violation of Surrey Building Bylaw, 2012, No. 17850 ("the Building Bylaw"), and Surrey Zoning Bylaw 1993 No. 12000 ("the Zoning Bylaw"), and had continued construction in disregard of a stop‑work notice issued by the City under the Building Bylaw. The City seeks a declaration that Mr. Gill has contravened the Building Bylaw and injunctive relief as more particularly specified in Part 1 of the City's petition. Statutory Framework [3] The City has adopted the Building Bylaw and the Zoning Bylaw pursuant to its authority under the Community Charter, S.B.C. 2003, c.

26. The relevant portions of the Building Bylaw are as follows: · Section 8 prohibits construction that is not authorized by a building permit; · Section 21(a) requires an owner to apply and obtain a permit before carrying out any construction. "Construction" is broadly defined under section 2; · Section 51 sets out the conditions for issuance of a building permit, including the information required; · Section 65 requires the building official's acceptance of certain specified stages of construction before commencement of subsequent stages; · Section 66 requires the building official's written acceptance of each aspect of the work listed in section 65 before such aspect is concealed; · Section 97 authorizes the building official to post a stop‑work notice while work is proceeding in contravention of the building code or the Building Bylaw; · Section 98 requires the owner of a lot on which the stop‑work notice has been posted to cease all construction immediately; and · Section 9 prohibits occupancy of a building unless a valid occupancy permit has been issued by the building official. Background [4] The City first became aware of an unauthorized construction of the Addition when a bylaw enforcement officer attended the Property on March 5, 2022 and observed construction in progress. The officer confirmed with City records that a building permit had not been issued for the

construction. [5] On March 18, 2022, a City building official attended the Property and posted a stop‑work notice. Correspondence was also sent to Mr. Gill advising him to stop work. [6] On May 27, 2022, another building official attended the Property and observed the stop‑work notice had been removed. The building official posted a new stop‑work notice. [7] On May 27, 2022, a bylaw enforcement officer again attended the Property and observed that the construction on the Addition had progressed since the initial stop‑work notice had been posted. At the hearing of this application, the City adduced affidavit and photographic evidence to support this assertion. [8] On September 26th, 2022, a building official returned to the Property and conducted a detailed inspection. The building official observed that the old house had been fully extended by the Addition, which itself contained two full two‑bedroom suites on both the top and bottom floors. Each suite was occupied by tenants at the time of the inspection and the tenants were present at the time. [9] As of the date of the hearing, no building permit or occupancy permit has been issued for the Addition, even though it is now occupied by tenants. [10] Mr. Gill filed no materials on the application and does not contest the accuracy of any of the factual assertions made by the City. Mr. Gill admitted at the hearing that he was

aware of the stop‑work orders but thought he could ignore them by proceeding with the construction and simply pay a fine. Analysis [11] Pursuant to section 274(1) of the Community Charter, the City may apply to the Supreme Court to enforce its bylaws and restrain their contravention. [12] In North Pender Island Local Trust Committee v. Conconi, 2010 BCCA 494, the Court of Appeal declined to overturn a trial judge's decision to issue an injunction, emphasizing that the discretion to decline an injunction to enforce a bylaw is very narrow: The trial judge observed that the requested injunction is not based in equity but is a statutory injunction under s. 274 of the Community Charter ... After referring to three decisions of this Court ... the judge concluded that the narrow jurisdiction to refuse an injunction did not exist in this case because an injunction would remedy the mischief of the bylaw. Mr. Conconi says the judge erred in principle because she viewed the discretion to refuse an injunction too narrowly. It is my view that the judge did not err in granting the injunction. The requested injunction is a statutory remedy that engages the public interest. The discretion of the court to decline an injunction to enforce a bylaw is very narrow and is reserved for rare cases with exceptional circumstances. This is not one of those rare cases. [13] Similarly, in Surrey (City) v.

Singh, 2022 BCSC 1455, Justice Gomery recently explained the applicable analysis, emphasizing that the discretion should only be exercised in exceptional circumstances: The City is authorized to apply to court to enforce its laws, its bylaws and restrain the contravention of its bylaws... The public interest favours the enforcement of municipal laws. While the court has a discretion to refuse to enforce legislative requirements, it will only be exercised in exceptional circumstances... Generally speaking, personal hardship resulting from the requirement does not qualify. [14] Mr. Gill's actions were clearly deliberate as he has admitted that he consciously disregarded two stop‑work orders and related correspondence from the City and allowed tenants to occupy the addition without an occupancy permit. [15] Mr. Gill has adduced no evidence of exceptional circumstances and, indeed, he filed no evidence at all on the application. Mr. Gill claimed financial hardship at the hearing with respect to the debt he has incurred to build the Addition. But as noted by Mr. Justice Gomery in Singh, personal hardship taken alone is generally insufficient. [16] Mr. Gill also argues that there are many houses in his neighbourhood where the owners have built similar non‑conforming additions without enforcement action being taken by the City. As a result, he feels he is being unfairly targeted and

that the City is trying to make an example of him. [17] Counsel for the City disputed this characterization noting that, due to limited resources, the City cannot proceed against all non‑conforming properties at once, but this does not mean that enforcement is not continuing against others. [18] While I am sympathetic that Mr. Gill is in a difficult personal situation. I am also conscious of the narrow role of the court in this context. [19] Mr. Gill's argument amounts to the proposition that because others have disregarded the law, he too should be entitled to disregard the law with impunity. Such a proposition cannot be the governing principle in these circumstances because, taken to its logical conclusion, it would render the City's Building Bylaws unenforceable. [20] Further, to the extent that Mr. Gill argues that he ought to be given the opportunity to legalize the work that has been unlawfully constructed, Justice Gomery dismissed that argument on the basis that there was no realistic prospect of a retroactive building permit in that case. [21] In my view, the same conclusion pertains in this case for two reasons: · First, the Addition far exceeds the floor area ratio permitted by the Zoning Bylaw, the lot coverage permitted by the Zoning Bylaw and also violates setbacks imposed by the Zoning Bylaw. These structural issues cannot be fixed except with a demolition. ·

Second, the progress of construction has already covered many of the elements that the City would need to inspect in stages pursuant to section 65 of the Building Bylaw to ensure that the construction is safe and a building permit is appropriate. Since construction was completed without permitting, the City has been unable to complete the staged inspections required to assure safety, nor can it now do so retroactively. [22] Accordingly, I conclude that the relief sought by the City should be granted, subject to: (1) amending the wording in paragraph 3 of the order from "the respondent must do all things necessary" to "all things reasonably necessary", and (2) providing 30 days rather than 15 days. [23] The City will have its costs at Scale B. "Taylor J."