T.S.G. Sales Ltd. v. Vancouver (City)

2012 BCSC 1177 T.S.G. Sales Ltd. v. Vancouver (City)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: T.S.G. Sales Ltd. v. Vancouver (City), 2012 BCSC 1177 Date: 20120803 Docket: S107845 Registry: Vancouver Between: T.S.G. Sales Ltd. and N.P. Boutiques Ltd. Petitioners And The City of Vancouver and The Director of Planning Respondents Before: The Honourable Mr. Justice Voith Reasons for Judgment Counsel for the Petitioners: Joseph J. Arvay, Q.C. Alison M. Latimer Counsel for the Respondent The City of Vancouver: Grant Murray Place and Date of Hearing: Vancouver, B.C. May 10, 2012 Place and Date of Judgment: Vancouver, B.C. August 3, 2012 [1] The central facts that underlie this Petition are not in dispute. The Petitioners wished to change the permitted use of premises, located at Unit 27 - 701 Kingsway Street (the "Premises"), to an Adult Retail Store use. They were unable to comply with the regulatory requirements that would have enabled them to operate an Adult Retail Store legally. They have chosen to operate an Adult Retail Store without the necessary licenses and permits. They argue that there are multiple other businesses in Vancouver that similarly do not comply with these various requirements and no enforcement action has been taken against these other businesses. [2] The Petitioners seek a declaration that the City of Vancouver "unlawfully discriminated against the Petitioners in the enforcement of the Vancouver Zoning

and Development Bylaw (No. 3575) [the "Zoning Bylaw"] and has otherwise an unlawfully discriminatory policy with respect to Adult Retail Stores". In practical terms, the Petitioners seek to suspend the City's enforcement action against them. [3] The City, in turn, seeks a dismissal of the Petition and an order prohibiting the Petitioners from acting in contravention of the Zoning Bylaw by operating an adult Retail Store without a development permit. The Relevant Regulatory Regime [4] Before turning to a detailed review of the facts, I have chosen to address the various statutory provisions, bylaws, and guidelines that establish the legal framework within which an Adult Retail Store can be established. Because this framework and its interpretation are not in dispute, I have not quoted these various requirements at length. A. The General Scheme [5] Part XXVII of the Vancouver Charter, S.B.C. 1953, c. 55, grants the City broad authority in relation to land-use planning and development. Section 565 of the Vancouver Charter is part of that grant of authority. Section 565(1) permits Council to make bylaws dividing the city, or any portion of it, into districts and zones and to regulate the use or occupancy of land within such districts or zones. Section 565(2) makes clear that a bylaw that regulates the use or occupancy of land may permit such uses or occupancy either outright or

conditionally. [6] Section 565(1) confirms that council may make bylaws prohibiting any person from undertaking a development without first obtaining a development permit. Such permits can be made subject to conditions, and the failure to comply with such conditions constitutes an offence. [7] In 1995, council, after a process of consultation with the public, enacted the Adult Retail Store Regulation. This regulation resulted in the creation of an Adult Retail Store use, as well as Adult Retail Store Rules and Adult Retail Store Guidelines (the "Guidelines"). [8] The Adult Retail Store use was permitted as a conditional approval use, but not as an outright approval use, in several zones, including Commercial 2, or "C-2", zones. [9] Section 559 of the Vancouver Charter defines a conditional approval use as "a use of land or a building which is permitted in a district or zone at the discretion of Council...". [10] Conditional approval uses in C-2 zones are governed by s. 3.1 of the C-2 Schedule of the Zoning Bylaw, which permits the Development Permit Board, subject to certain limitations, to approve certain uses, including Adult Retail Store, provided that it first considers: (a) the intent of this Schedule and all applicable policies and guidelines adopted by Council; and (b) the submission of any advisory group, property owner or tenant. [11] The Zoning Bylaw defines each of

"'Adult Retail Store", "Adult Magazine", and "Sex Objects" with some precision. It is common ground that the Premises constitute an Adult Retail Store that displays and sells Adult Magazines and Sex Objects, and that the Premises are zoned C-2. B. The Particular Bylaws or Guidelines that are Relevant to the Premises [12] Section 6.4 of the Zoning Bylaw requires a property holder to seek a development permit when changing the use of premises. In this case, it is accepted that the Petitioners have changed the use of the Premises from an outright approval use (Retail Store) to a conditional approval use (Adult Retail Store). [13] Section 10.29.2 of the Zoning Bylaw limits the frontage of any Adult Retail Store to 7.6 m. The word "frontage" is not defined in the Zoning Bylaw. The Respondent, in its written submissions, and after referring to dictionary definitions, other zoning bylaws, and case law, developed what it says constitutes the "frontage" of a site. No objection was taken by the Petitioners to the Respondent's definition, which describes the "frontage" of a site as "the boundary or length...of any premises which abuts or faces upon a street...". On this basis, the frontage of the Premises is no less than 14.6 m and clearly exceeds the maximum frontage permitted by the Zoning Bylaw. [14] The Guidelines provide: These guidelines are to be used for development applications

involving adult retail stores, including any redevelopment of the premises. Adult retail store is defined in Section 2 of the Zoning and Development By-law. (1) An adult retail store should not be located within 305.0 m of an existing adult retail store, elementary or secondary school, community centre, neighbourhood house, park or licenced group daycare centre. (2) Facades and storefront windows should be compatible with the commercial districts in which they are located. (3) Sex objects and adult publications should not be visible from the street. (4) All signs, posters and other advertising material should be a consistent quality in keeping with retail businesses within the adjacent block. Signage indicating minimum age of admission should be clearly visible from the street. [15] It is accepted that the Premises are approximately 172 m from Robson Park, which contains the Mount Pleasant Family Centre Society's premises. The Centre is a resource centre for adult caregivers and their children. Consequently, the use of the Premises as an Adult Retail Store does not comport with the Guidelines. The Relevant Facts [16] Mr. Anthony Perry is the director and president of each of the Petitioners. Mr. Perry owns other Adult Retail Stores in Vancouver. [17] On October 1, 2009, the Petitioner N.P. Boutiques Ltd. entered into a five-year lease for the Premises. It remains their present

occupant. [18] Prior to that time, the Premises were used to operate a video rental business. That business operated under a 2009 business license that allowed a video rental business, including the rental of adult videos. [19] In November 2009, the City received and approved the transfer of this business license to the Petitioner T.S.G. Sales Ltd. On March 5, 2010, Mr. Peet, an inspector for the City, sent a letter to Mr. Perry that stated that following an inspection, it had been determined that the Premises were being used as an adult entertainment store, and that this constituted a change in use from a video rental store without the tenant having first obtained the necessary development permit. [20] On April 16, 2010, T.S.G. Sales Ltd. applied for an adult entertainment business license for the sale of videos, including videos with graphic sexual material, the sale of sex paraphernalia and adult publications, making single-person occupancy booths with pornographic film viewers available, and adult video rentals. [21] On May 31, 2010, Mr. Peet conducted a further inspection of the Premises. His check of the City's records indicated that there had been no development permit application submitted for a change of use to an Adult Entertainment Store. His inspection revealed that the Premises were still being operated as an Adult Entertainment Store and were divided into two

areas: (i) a retail area containing movies, DVDs, magazines, books, and sexual paraphernalia for sale, which did not offer movie rentals; and (2) an area containing ten coin operated peep show single seat booths and two preview bench booths for viewing full length movies. [22] An "Adult Entertainment Store" is separately defined under Licencing Bylaw (No. 4450), and includes a business that sells either sex paraphernalia or graphic sexual material or where pornographic film viewers are made available to the public. [23] Mr. Peet recommended that a 14 day zoning and development order be issued to the agent for the store owner to cease the Adult Entertainment Store use. On June 8, 2010, this order was issued. [24] On or about June 10, an agent for the Petitioners attended at City Hall with architectural plans for the Premises and was told that any application for a development permit would be rejected. Thereafter, counsel for the Petitioners asked that the reasons for that position be communicated in writing. [25] In correspondence dated June 16, 2010, Mr. Michaels, Assistant Director of Development Services, wrote that there were "two very obvious issues of noncompliance for which there are no discretion or relaxation provisions". Those issues were the frontage of the Premises, which exceeded 7.6 m, contrary to s. 10.29.2 of the Zoning Bylaw, and proportion of the floor space

that was devoted to "accessory uses" such as the viewing booths, which exceeded 25%, contrary to ss. 2.2.A and 3.2.A of the C-2 District Schedule. [26] Mr. Michaels further stated that the blacking out of the windows conflicted with the objective of a "visually interesting interactive experience for pedestrians." [27] On July 16, 2010, Mr. Perry submitted Development Permit Application No. DE4 14076 (the "Development Permit Application") for interior alterations and change of use of the Premises from Retail Store to Adult Retail Store. He advised that he wished to operate a Fantasy Factory, which would be an Adult Retail Store that operated from noon until midnight and sold sex objects and adult magazines. He said he would not sell or rent adult videos and would not provide viewing booths. He asked that the frontage of the Premises be determined to be approximately 4 m. [28] He agreed that in order to facilitate a visually interactive experience for pedestrians, he would not black out the windows of the store, and would instead put controlled displays in the windows. [29] On July 28, 2010, Claudia Hicks, a Project Coordinator with the City, sent a letter to 735 neighbouring property owners regarding the Development Permit that requested comments on or before August 13, 2010. The City received 104 responses, out of which 102 were opposed to the Development Permit and two were in

favour. The City also received three petitions with a total of 63 names, all of which were opposed to the application. [30] On September 3, 2010, the Development Permit Application was refused by the Director of Planning for the following reasons: The proposed development does not comply with s. 10.29.2 of the Zoning & Development By-law [which provides: "Adult retail stores shall be restricted to a maximum floor are of 278 m2 and a maximum premise frontage of 7.6 m"]; The proposed development does not comply with the Adult Retail Store Guidelines adopted by City Council May 16, 1995 [because it was located within 305 m of a park and community centre]; Objections have been received from neighbouring property owners; The proposed use is considered inappropriate at this location. [31] On September 20, 2010, Mr. Perry filed a Notice of Appeal of this decision. [32] On October 13, 2010, the Board of Variance disallowed the appeal. [33] On October 15, 2010, the City sent Mr. Perry a further 14 day zoning and development order to cease the adult entertainment use that was still taking place at the Premises. [34] On November 30, 2010, the Petitioners commenced these proceedings, naming both the City and the Board of Variance. The Board of Variance was thereafter removed, by consent, as a party. [35] On February 17, 2011, counsel for the Petitioners wrote to the City to inquire why a

number of other stores that fit the description of Adult Retail Stores were not licensed as such. That letter identified seven separate businesses and a further ten locations of London Drugs (collectively "the Other Stores") that displayed and sold "Sex Objects" as defined in the Zoning Bylaw. [36] Mr. Peet, in an affidavit sworn December 7, 2011, confirmed that each of the Other Stores, but for one that had gone out of business, was selling "sexual paraphernalia" [37] Mr. Peet further confirmed: (a) that the City's typical policy in relation to property use inspections is to respond to complaints; (2) that the City had received no public complaints regarding the sale of sexual paraphernalia at the Other Stores; and, (3) that as at that date he was not aware of any further enforcement action being taken in relation to any of the Other Stores. [38] The affidavit of Ms. Burpee, sworn March 1, 2012, confirms that most of the Other Stores do not comply with the Guidelines. Ms. Burpee is a City Planner. [39] The affidavit of Mr. Johnston, Director of Licenses and Inspections for the City, sworn May 7, 2012, confirms that none of the Other Stores sought or obtained a development permit that would allow the operation of an Adult Retail Store and that none holds an Adult Entertainment business license. [40] Mr. Johnston noted that two of the 17 businesses that comprise the Other Stores

were operating prior to the adoption of the Regulations. [41] Importantly, Mr. Johnston has deposed: 4. I intend to meet or arrange City staff meetings with the operators of all 17 businesses, to discuss the City's regulations and the alleged unlawfulness of the operations. I intend to seek to bring the 17 businesses into compliance with the City's Adult Retail Store regulations, including the Zoning and Development By-law and the License By-law.

5. The enforcement options open to the City include: a. issuing orders pursuant to section 7.1 of the Zoning By-law; b. seeking an injunction to enforce City by-laws under section 334 of the Vancouver Charter; c. referring the matter to the City Prosecutor; or d. a business license suspension hearing under the Vancouver Charter. Analysis i) A Summary of the Various Issues that were raised and that are not directly Relevant [42] The central issue raised by the Petitioners is the legal result that arises from the City's failure to enforce the Zoning Bylaw and the regulatory regime associated with the proper establishment and operation of an Adult Retail Store, other than against the Petitioners. [43] Both parties raised various other factual and legal issues that I do not consider germane to this central issue, but that I feel I should first address. This exercise also assists in distilling and identifying those few issues that do matter. [44] The City argued that I should infer that Mr. Peet's inspection of the Premises, and the ensuing orders of June 8, 2010 and October 15, 2010, took place as a result of complaints by a third party. It is to be recalled that Mr. Peet deposed that there were no recorded complaints against the Other Stores - at least pertaining to their sale of "sexual paraphernalia". [45] I understood that the object of this submission was to provide some

principled distinction between the enforcement activity that has taken place in relation to the Petitioners and the Other Stores. In addition, some case law that is relevant, and that I will return to, relies on the existence of "public complaints" or an enforcement policy that is based on "public complaints" to explain ostensibly discriminatory enforcement activity. [46] I do not accept this submission. If the City wished to assert that its focus on or inspection of the Premises was precipitated by "public complaints", its affidavit materials should have said so in clear terms. In addition, the concept of an enforcement policy that is based on public complaint is ambiguous in its ambit. Such a policy may be designed to respond to a public outcry over some illegal or non-compliant activity. It may also constitute the means by which such non-compliance comes to the City's attention, after which time its enforcement mechanisms become engaged. [47] In this case, the February 17, 2011 letter from counsel for the Petitioners to the City brought to its attention the activities of the Other Stores. Mr. Peet's subsequent affidavit stated that notwithstanding the City's awareness of this activity it did not contemplate any "further enforcement steps" against the Other Stores. [48] However, the recent affidavit of Mr. Johnston, which signals an intention to undertake enforcement activity

against the Other Stores, appears to have overtaken this issue or argument. Thus, the facts before me no longer address a situation where the City is willing to allow the Other Stores to operate illegally. [49] This leads me to the next matter. The Petitioners sought to persuade me that I ought to give little weight or significance to the affidavit of Mr. Johnston. They argued that his affidavit was only delivered on the eve of the hearing, when these proceedings had been underway for approximately 18 months, and that I should be skeptical of the intentions or assertions expressed within it. [50] Counsel for the City explained, however, that the original Petition challenged both the Bylaw and the Guidelines as being ultra vires and an unjustifiable infringement of s. 2(b) of the Charter of Rights and Freedoms. The Petition was amended on May 5, 2012, at which time the s. 2(b) challenge was abandoned and the declaration that Petitioners now seek, and that I identified at the outset of these reasons, was advanced. Counsel for the City further explained that during the time that the focus of the Petition was on the validity of the Zoning Bylaw and Guidelines, the City did not consider it prudent or appropriate to begin enforcement proceedings against the Other Stores. After the Petitioners change of focus or legal theory became apparent on May 5, 2012, the City promptly responded

with the affidavit of Mr. Johnston on May 7, 2012. [51] While none of the foregoing explanation is contained in an affidavit, the chronology it is based on aligns with my review of the relevant pleadings and their amendments, as well as with the filing of Mr. Johnston's affidavit. Still further, and at bottom, the affidavit of Mr. Johnston is clear and unambiguous. [52] The next matter arises from the Petitioners seeking to ascribe some discriminatory purpose to the City's conduct. Mr. Perry, in his affidavit of July 19, 2011, has commented that some of the Other Stores have a "focus on the sexual health of their female customers", others cater "to the gay and lesbian community", and still others are said "to be targeting a higher income clientele". Conversely, Mr. Perry considers the Premises and his other adult retail stores to be the "Army and Navy of sex stores". [53] It is not clear what legal purpose this evidence is intended to serve. There was a time when a discrimination claim required some proof of an improper motive to either aid or injure one party. This may no longer be the case. This evolution is succinctly expressed in David Jones & Anne de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) at 193: (b) Discrimination There is also a presumption that a statutory delegate must not exercise its discretion in a discriminatory manner. Chief

Justice McKeigan stated the test for what constitutes discrimination in Lacewood Development Co. v. Halifax (City) as follows. Wrongful discrimination involves two elements, both of which must be present before a by-law should he condemned on this ground: (1) The by-law must discriminate in fact. To use the words of Middleton, J. in the "classic definition'', by-laws discriminate if they "give permission to one and refuse it to another". ([2]) The factual discrimination must be carried out with the improper motive of favouring or hurting one individual and without regard to the public interest. Some more recent cases suggest that the second part of the Lacewood test--an improper motive--is no longer required to establish discrimination. These cases focus more on whether there has in fact been discrimination and on whether the enabling legislation authorizes it (either expressly or impliedly), or whether the discrimination was necessarily incidental to the exercise of the delegate's powers. [54] In any event, I consider that Mr. Perry's comments are speculative in nature and that they do not provide an adequate evidentiary basis from which I might draw a proper inference. There is nothing in the record before me that suggests that Mr. Perry's other Adult Retail Stores have been the focus of specific or undue attention from the City. Still further, Mr. Perry's suppositions are

belied by Mr. Johnston's assertion that the City intends to contact the Other Stores and to seek to bring them into compliance with the relevant regulatory regime. [55] Finally, counsel for the Petitioners sought to persuade me that s. 3.1.1 of the Zoning Bylaw creates a "duty to enforce", rather than a discretion to do so. That provision states: Save and except as provided in subsections 3.1.3 and 3.1.4, it shall be the duty of the Director of Planning to carry out and enforce the provisions of this Bylaw. [56] I do not believe I need address this issue directly for two reasons. First, even if s. 3.1.1 of the Zoning Bylaw conferred a discretion, rather than a duty, to enforce on the Director of Planning, that discretion would have to be properly exercised on a principled basis with reference to legally relevant considerations. A failure to exercise a discretion properly renders the ensuing decision arbitrary and/or unreasonable and/or ultra vires. [57] Here, as I have said, the City has provided no sworn evidence of why in the past it focused on the activities of the Petitioners when it was aware of the non-compliant activity of the Other Stores. Thus, it has not expressly sought to justify any of its decisions as an exercise of discretion. Again, however, the City has now made clear its intention to enforce the Zoning Bylaw and other regulatory requirements against the Other

Stores. [58] Second, based on the authority of Polai v. Toronto (City), [1973] S.C.R. 38, it is not clear that even if the City had acted in a discriminatory fashion this would necessarily override the public interest in enforcing the Zoning Bylaw. The Real Issue [59] For present purposes, the following uncontradicted facts are central: i) the Premises do not comply with the Zoning and/or Licencing Bylaws and the Guidelines (collectively the "Regulatory Regime"); ii) the Other Stores are not in compliance with the Regulatory Regime; iii) the City has undertaken enforcement proceedings against the Petitioner's; and iv) the City has deposed, through its representative Mr. Johnston, that it now intends to enforce the Regulatory Regime against the Other Stores. [60] The Petitioner's seek to bring themselves within a group of cases that do not govern or pertain to the present circumstances. Specifically, they seek to elevate or re-characterize the City's failure to enforce the Regulatory Regime against the Other Stores. They argue that that failure constitutes a "discriminatory policy" and rely, for example, on Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. [61] In Shell, Vancouver City Council had passed certain resolutions stating that the City would not do business with Shell Canada "until Royal Dutch/Shell completely withdraws from South Africa". The City

had conceded that its resolutions were discriminatory, but argued that such discrimination was authorized by the Vancouver Charter. Sopinka J., for the majority, concluded that the resolutions in question constituted "unauthorized discrimination": Shell, at 280. [62] In Re Namusa Enterprises Ltd. and City of Etobicoke (1984), 47 O.R. (2d) 769, 6 O.A.C. 137 (H.C.J.), another case relied on by the Petitioners, the Ontario High Court of Justice held that when the City's board of control resolved that no further licences for bingos in the applicant's bingo hall would be issued, they discriminated against the applicant. The Court explained, at 771 and 774-775: The applicant's business apparently is a successful one. It got a good number of charitable organizations to be its customers. Those organizations drew many players to their bingo games. Many of those players drove to the bingo hall in their cars and used up much of the parking space in the area. This has led to complaints from other businesses in the neighbourhood when their customers found difficulty in finding parking spots because the bingo players occupied most of them. Attempts to rectify the parking problem have been made, including the installation of parking-meters. But the problem of too many bingo players taking up too few parking spots continued and so did the related complaints from the other businesses. ... We

also think that the resolution was unlawfully discriminatory. It is obvious from our finding of fact that we think that council passed the resolution with the specific purpose of aiding a particular group of persons within a class to the detriment of another member of the same class. Its purpose was to assist a particular group of businesses in the area where the applicant carried on its business. In order to assist those businesses in the way it intended, it was necessary to destroy the applicant's business and thus it acted to the specific detriment of the applicant's legitimate business interests. In determining to assist the other businesses, it must be taken to have decided to destroy the applicant's business. While it is trite that any general law can prejudicially affect some of the persons affected by it, if the law is of general application and for the general public good, the loss suffered by some must be borne in the public interest. In this case, council acted with the specific purpose of helping some members of a class, the businesses on the Lakeshore, to the detriment of one single member of that same class, namely, the applicant. The exercise of the legislative power in this case is so obviously discriminatory that even if it were sanctioned by statutory authority, we would have held it to be illegal. [63] The Petitioners assert that another case that is

informative is Fredericton (City) v. Mclnroy (1989), 101 N.B.R. (2d) 221, 43 M.P.L.R. 264 (C.A.), where a policy that was not applied fairly to all citizens was found to be discriminatory. At issue in that case was a city policy that "an owner may use City property in front of his own unless it causes a hardship to an adjacent land owner." The city had granted permission to an owner to landscape the property in front of his own. Because the street on which that property was semi-circular and the boundaries of the lots were therefore not parallel, this would have reduced the neighbouring property owner's street access from 60 feet to 18 feet. The Court, at paras. 9-10, held that the city was not entitled to use the policy in such a manner: [9] In Rogers, The Law of Canadian Municipal Corporations, (2nd Ed.), vol. 1, at p. 400, para. 65.46, the author refers to a principle of fairness which we think applies to policies as well as to bylaws: "It is a fundamental principle of municipal law that bylaws must affect equally all those who come within the ambit of the enabling enactment. Municipal legislation must be impartial in its operation and must not discriminate so as to show favouritism to one or more classes of citizens. Any bylaw violating this principle so that all the inhabitants are not placed in the same position regarding matters affected by it is illegal, unless the

enabling statute clearly specifies that certain persons or things may be excepted from its operation or expressly authorizes some form of discrimination." [10] Thus, in cases of policies, the city cannot prefer one person over the other. The city cannot endorse a policy which cannot be applied fairly to all concerned and certainly not if the policy has the effect of modifying a subdivision plan. [64] Each of the foregoing authorities is an example of a city or municipality consciously and specifically acting, without statutory authority, and either acknowledging that its conduct was discriminatory or the court concluding that its conduct was discriminatory. [65] The City's efforts to require the Petitioners' to comply with the Regulatory Regime do not constitute a "discriminatory policy". This description or re-characterization is, as I have said, not supported by the evidence before me. [66] Instead, the circumstances of this case simply reflect, as do many cases, an instance of selective enforcement by a municipality of various regulatory requirements. In many cases, such selective enforcement is explained or justified by the municipality as being the product of a lack of resources or as being "complaint driven": see, for example, Whistler Service Park Ltd. v. Whistler (Resort Municipality) (1990), 50 M.P.L.R. 233 at 239-240. This, however, need not be so. [67] In the leading

case of Polai, the city brought an action against Ms. Polai seeking an injunction restraining her from using a building as a multi-family dwelling home in contravention of its zoning bylaws. It is noteworthy that notwithstanding the trial judge's conclusion, which was supported by a majority of the Ontario Court of Appeal, that the city had a "list" of persons against whom no enforcement action would be taken, the court concluded that the public interest in enforcement prevailed. Judson J., for the court, succinctly detailed both the history of the matter and the court's conclusions, at 40-41: The trial judge dismissed the city's action because he found that it maintained a secret "deferred list" of infringers against whom no action, either by prosecution or application for an injunction, had been or would be taken. In the Court of Appeal, Schroeder J.A. did not accept this characterization of the list either as to its secrecy or its permanency and rigidity. He expressly found that the committee administering the list had not acted in bad faith or arbitrarily in the discharge of its assumed duties. Jessup J.A and Brooke J.A. thought that the existence and operation of the list amounted to discrimination against Mrs. Polai, but all three judges held that the public has a direct and substantial interest in the enforcement of the by-law and that this public interest must prevail

over the private interest of Mrs. Polai. In my opinion this conclusion is sound. I do not think that law enforcement of a zoning by-law-- and I am by no means sure that it can be called "lax enforcement" in this case--can afford any defence against an application for an injunction under s. 486 of The Municipal Act, which provides: 486. Where any by-law of a municipality or of a local board thereof, passed under the authority of this or any other general or special Act, is contravened, in addition to any other remedy and to any other penalty imposed by the by-law, such contravention may be restrained by action at the instance of a ratepayer or the corporation or local board. This is a case of persistent and defiant infringement. The defence really amounts to a claim for immunity until the list is disregarded and everybody else prosecuted. This is small comfort to a neighbour in an otherwise residential area who is complaining of the infringement. Nor does s. 486 confine the remedy to the municipality. A ratepayer has a right of action. It is no defence against his action to say that there are other cases of infringement which have not been questioned. In this particular case, it is obvious that the immediate neighbours were the ones who were objecting. This gave the evidence. It makes no difference whether they bring the action or the municipality brings the action. The City, in

this action, is seeking to protect and enforce a public right, and should not be denied the remedy of injunction merely because others, in addition to the defendant, are guilty of similar violations and have not been restrained. [68] Recently, in Burnaby (City) v. Oh, 2010 BCSC 1970, the defendant argued that the applicant municipality should not be permitted to enforce various bylaws that prohibited illegal suites against her because there were many other such suites in Burnaby. Greyell J. concluded that there was no evidence that the applicant municipality had discriminated against Ms. Oh, referred to and relied on Polai, and concluded, at para. 26: "The defendant cannot rely on the fact others are breaking the law to justify her own breach of the law." [69] On appeal, in reasons indexed at 2011 BCCA 222, Rowles J.A., for the court, said: [39] I turn now to the arguments the appellant advances in her factum in defence of the City's claim for declaratory and injunctive relief. In the main, the arguments are a repetition of those made in the court below, specifically, that the appellant was discriminated against by being unfairly targeted and, as well, that she was harassed repeatedly by City officials. [40] There is no issue that the City has the power to enforce its Zoning Bylaw by proceedings for an injunction. Section 274(1)(a) of the Community Charter, S.B.C. 2003, c. 26

provides: 274(1) A municipality may, by a proceeding brought in Supreme Court, enforce, or prevent or restrain the contravention of, (a) a bylaw or resolution of the council under this Act or any other Act ... . [41] Once the municipality applying for the injunction has demonstrated that there has been a breach of a bylaw, the court has limited discretion to deny a statutory injunction to enforce a public right: Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 54 B.C.L.R. (3d) 155, 162 D.LR. (4th) 203 (C.A.) at para. 9: Where an injunction is sought to enforce a public right, the courts will be reluctant to refuse it on discretionary grounds. To the extent that the appellants may suffer hardship from the imposition and enforcement of an injunction, that will not outweigh the public interest in having the law obeyed. ... [42] In this case, Justice Greyell concluded that the appellant, in asserting discrimination as a defence, could not rely on the City's alleged non-enforcement of the Bylaws against others in order to defeat the application the City had brought against her. The correctness of the judge's conclusion on this point is well-supported by the decision in Polai v. Toronto (City), [1970] 1 O.R. 483 (Ont. C.A.), aff'd [1973] S.C.R. 38. ... [70] Rowles J.A. then quoted from those passages from Polai that I have referred to and confirmed, at para. 43, that the

evidence supported Greyell J.'s conclusion that there was no evidence of discrimination by Burnaby's officials. [71] Polai and Oh dictate the result in this case. The Petitioners seek to place the focus on the activity of the Other Stores and the City when the real issue is the illegality of their conduct. That conduct, as in Polai, evinces a pattern of "persistent and defiant infringement". As in Polai, the Petitioners now seek "immunity" until each of the Other Stores is prosecuted. There is no principled basis for any such immunity. [72] A municipality's earlier condonation of the violation of its bylaws does not estop it from later seeking to enforce the same bylaw: Fraser Valley Regional District v. Petrie, 2005 BCSC 1385 at para. 7. [73] In Langley (Township) v. Wood, 1999 BCCA 260 at para. 12, Mr. Justice Cumming stated: [12] As a general rule, municipal rights, duties and powers, including the duty to carry out the provisions of a statute, are of such public nature that they cannot be waived, lost or vitiated by mere acquiescence, laches or estoppel. [citations omitted] [74] Still further, in this case, the City has confirmed its intention to require that the Other Stores comply with the Regulatory Regime. Thus, the present concern of the Petitioners, in real terms, is not that the City is not enforcing the Regulatory Regime against the Other Stores, but rather that the

Premises are the first Adult Retail Store against which such enforcement action has been brought. How and when the City requires compliance with the Regulatory Regime from the Other Stores, recognizing that it has various enforcement options available to it, is within its discretion. [75] It is acknowledged that the Petitioners are acting in violation of the Zoning Bylaw. [76] In Langley, the Court, at para. 17, held that "the court has no discretion to deny the Township an injunction once a breach is established". [77] In Burnaby (City) v. Pocrnic, 1999 BCCA 652, the Court, at para. 15, recognized a limited discretion to deny a statutory injunction in exceptional circumstances. [78] Though there is some inconsistency between these cases, even if Pocrnic is followed there is nothing in this case that would lend itself to a finding that exceptional circumstances exist. [79] There is no point in my requiring that the Petitioners comply with the Zoning Bylaw. The physical configuration of the Premises makes that impossible. I am ordering that the Petitioners cease the unlawful operation of an Adult Retail Store on the Premises. They are to do so within 90 days of these reasons being issued. "Voith J."