Chaban v. City of West Kelowna, 2021 BCPC 113

Citation: Chaban v. City of West Kelowna 2021 BCPC 113 Date: 20210223 File No: 125597 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: EDWARD CHABAN CLAIMANT AND: CITY OF WEST KELOWNA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. TAM Appearing on their own behalf: E. Chaban Counsel for the Defendant: H. Sian Place of Hearing: Kelowna , B.C. Date of Hearing: January 25, 2021 Date of Judgment: February 23, 2021 Introduction

[ 1 ] Mr. Chaban, the Claimant, lives in the City of West Kelowna (the “City” hereafter). On October 29, 2017, his neighbour (the “Neighbour” hereafter) installed a woodstove. On November 7, 2017, Mr. Chaban complained to the City that the chimney or flue of this woodstove was improperly installed. He also learned that no permit was issued for this appliance. He then had a discussion with the Neighbour who agreed to stop using the woodstove on November 14, 2017. On November 17, 2017, Mr. Chaban emailed the City, urging them to not issue a permit for the woodstove. Mr.

Chaban was unhappy with the smoke that was drifting into his home, causing him and his wife health issues. Mr. Chaban warned that if the City were to issue a permit, then he may pursue a civil action against them. This is that action. [ 2 ] On November 20, 2017, the Neighbour applied for a permit. This caused the City to dispatch an inspector to view the appliance, which occurred on November 23, November 28, November 29, and December 2, 2017. Five Inspection Reports were generated by 3 different inspectors. Initially, there were deficiencies identified.

But by the last inspection on December 2, the inspector was satisfied that any previous deficiencies were corrected. On that same day, the Neighbour began using the woodstove again. [ 3 ] Mr. Chaban again complained about the smoke coming from the woodstove. He contacted emergency services as well as the City. Mr. Chaban alleged that the Neighbour was violating the Solid Fuel Burning Domestic Appliance Regulation BC Reg 218/2016 (the “ Fuel Regulation ” hereafter) as it appeared to Mr. Chaban that the Neighbour was not burning seasoned firewood as required by the regulation.

By this point, the Neighbour had obtained a valid permit for the woodstove and the City declined to take any enforcement action. Procedural History and Parameters of this Hearing [ 4 ] Mr. Chaban filed a Notice of Claim with this Court on November 6, 2019. It is brief and so I will reproduce it here in its entirety: Our next door neighbor whom [sic] is a City of West Kelowna employee improperly installed a wood stove without permits or approval from the City, and started burning unseasoned firewood day and night resulting in toxic smoke drifting into our home.

The City of West Kelowna was negligent in responding to several complaints (bylaws did not respond at all) the City was Negligent in issuing a permit without due diligence, negligent in refusing to enforce the Solid Fuel Burning Domestic Appliance Regulation BC . [ 5 ] The City filed a reply. Among other defences, the City relied on s. 742 and s. 743 of the Local Government Act , granting immunity to municipalities under certain circumstances (enforcement of building bylaws or issuing a building permit that does not comply with regulations).

The City also pled that there was no duty of care owed from the City to Mr. Chaban under these circumstances. Since Mr. Chaban’s action is in negligence, the existence of a duty of care is an essential element to the success of his case. [ 6 ] The matter proceeded to a Trial Conference before me pursuant to Rule 7.5 of the Small Claims Rules . Both parties filed a Trial Statement, identifying the issues as well as listing the witnesses they intended to call. For his case, Mr. Chaban intended to call six witnesses.

They are as follows: • the administrator of engineering services from the Regional District of Central Okanagan; • an expert in the proper use of a wood burning appliance; • an Air Quality Specialist from the City of Kelowna; • the acting head of the Clean Air Environmental Protection Division from the BC Ministry of Environment and Climate Change Strategy; • Mr. Chaban’s physician; and • a Kelowna councillor; [ 7 ] And although not listed, it could be expected that Mr. Chaban himself would be testifying at this hearing. The City intended to call 4 witnesses.

They consist of a bylaw supervisor, two inspectors, and a specialist environmental health officer. [ 8 ] As noted above, the City identified two discrete legal issues that may be determinative of this case. Since these legal issues could be decided without the need to hear from the list of witnesses Mr. Chaban and the City would have had to call, I exercised my trial management power and directed that a 2-hour hearing be held only on those two issues. If, and only if, these two issues were resolved in Mr. Chaban’s favour, then the case would be scheduled to hear the rest of Mr. Chaban’s case.

For this 2-hour hearing, I permitted each party to file an affidavit no longer than 15 pages in length and I directed the parties to exchange case authorities. [ 9 ] At this hearing, the City had abandoned the claim for immunity under s. 742 and s. 743 of the Local Government Act . This is because the narrow list of actions for which the City enjoys immunity under those sections does not include the scenario in the case at bar. As such, the only remaining issue at this hearing is whether the City owed a duty of care to Mr. Chaban.

During the course of submissions, I allowed both parties to refer not only to the affidavits filed specifically for this hearing, but also documents previously filed with the Court which had been provided to the other party. These include the pleadings, a list of documents filed by the City, and also documents filed by both parties for the purpose of the Trial Conference alluded to above. Duty of Care between public body and private citizen On the issue of the relationship between a public body and a private citizen, I find the case of Wu v. Vancouver (City) , 2019 BCCA 23 to be instructive.

In Wu , the plaintiff sued the City of Vancouver essentially for failing to make a decision on a development permit application within a reasonable time. As a result, the plaintiff lost out on compensation to which they would otherwise have been entitled. But on the issue of duty of care, the Court said this at para. 43:

[43] This brings us to the first problem with the judge’s analysis. It is a settled principle that Canadian law does not recognize anominate tort of breach of statutory duty. As The Queen (Can.) v. Saskatchewan Wheat Pool, (SCC), [1983] 1 S.C.R.205, and Holland v. Saskatchewan, 2008 SCC 42, make clear, there is no duty of care imposed on officials to act in accordance withauthorizing statutes or regulations. Standing alone, a breach of a statutory duty is not a breach of a private law duty of care.

While abreach of statutory duty is subsumed within the law of negligence, a breach of a statutory duty can be evidence of negligence. As ageneral rule, a breach of a public law duty is not sufficient to establish the breach of a private law duty. The first is not readily convertedto the second. The existence of a private law duty of care must be established by the application of common law principles. [Emphasisadded.] [10] As best I can tell, Mr. Chaban complains that the City was negligent in issuing the permit as well as not enforcing the FuelRegulation.

On the authority of Wu, then, those facts, by themselves and without more, do not create a private law duty of care from theCity to Mr. Chaban. [11] However, the analysis does not end there. Since Kamloops v. Nielsen, (SCC), [1984] 2 S.C.R. 2, the law inCanada has recognized that, under some circumstances, a public body does owe a private law duty of care to a member of the public.Quoting Lord Wilberforce with approval from Anns v.

Merton London Borough Council, [1978] A.C. 728, the Supreme Court of Canadasaid in Kamloops, at p.8: Lord Wilberforce pointed out that the local authority is a public body whose powers and duties are definable in terms of public ratherthan private law. However, in some circumstances the law could impose over and above, or perhaps alongside, these public law powersand duties a private law duty towards individuals enabling them to sue the authority for damages in a civil suit. The difficulty was todetermine when such a private law duty could be imposed.

The first step, Lord Wilberforce said, is to analyse the powers and duties ofthe authority to determine whether they require the authority to make "policy" decisions or "operational" decisions. He said at p. 754: Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The courts callthis "discretion" meaning that the decision is one for the authority or body to make, and not for the courts.

Many statutes also prescribeor at least presuppose the practical execution of policy decisions: a convenient description of this is to say that in addition to the area ofpolicy or discretion, there is an operational area.

Although this distinction between the policy area and the operational area is convenient,and illuminating, it is probably a distinction of degree; many "operational" powers or duties have in them some element of "discretion."It can safely be said that the more "operational" a power or duty may be, the easier it is to superimpose upon it a common law duty ofcare. [12] In the end, the Supreme Court of Canada held that the City of Kamloops did owe a duty of care to the plaintiff in that case whenthe City of Kamloops was aware that there were structural deficiencies at the construction of a house, issued a stop work order, butnevertheless permitted the project to continue despite the stop work order.

The plaintiff ultimately purchased the house from the ownerwho built the house. [13] The Supreme Court of Canada had occasion to revisit the duty of care owed by a public body to a private citizen in Cooper v.Hobart, 2001 SCC 79. In that case, Mr. Hobart was the registrar of mortgage brokers. The plaintiff was an investor who gave money to amortgage broker firm (Eron Mortgage Corporation) who invested her money in unauthorized ways, resulting in significant losses.

Theplaintiff then sued the registrar for failing to suspend Eron in a timely way and notify investors when he was aware that Eron was guiltyof a number of serious violations under the Mortgage Brokers Act. [14] In clarifying the jurisprudential development on this issue, the Supreme Court of Canada said this at para. 30: 30 In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is bestunderstood as follows.

At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeableconsequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the firstpart of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns testfocuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in thebroad sense of that word.

If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At thesecond stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of theparties that may negative the imposition of a duty of care. It may be, as the Privy Council suggests in Yuen Kun Yeu, that suchconsiderations will not often prevail.

However, we think it useful expressly to ask, before imposing a new duty of care, whether despiteforeseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed. [15] Subsequent to Cooper, the legal framework analyzing whether a duty of care is owed by a public body to a private citizen isoften referred to as the Anns/Cooper analysis. In Wu, supra, the British Columbia Court of Appeal commented on the direction the lawhas taken since 2001 when Cooper was decided.

At para. 50 of Wu, Harris J.A. said this for the Court: [50] The most significant evolution in applying the Anns/Cooper framework is the increasing emphasis placed on the analysis ofproximity, at the expense of reasonable foreseeability, as the critical element in recognizing a prima facie duty of care. In Cooper, theSupreme Court of Canada made clear that reasonable foreseeability standing alone is insufficient to ground a prima facie duty of care. Inaddition to reasonable foreseeability, there must be proximity: Cooper at para. 42. In Deloitte & Touche v.

Livent Inc. (Receiver of), 2017SCC 63, the Supreme Court of Canada has recently traced the refinements in the Anns/Cooper framework placing greater emphasis on arobust analysis of proximity as the touchstone for recognizing a novel prima facie duty of care. [16] On the authority of the above, there must be an element of proximity between Mr. Chaban and the City in order for there to be aduty of care owed to him. Reasonable foreseeability, by itself, is not enough. Nor does the existence of a statutory obligation (by virtue ofa bylaw or a provincial regulation) means necessarily that such a duty of care exists.

The focus, per Wu, must be placed on therelationship between Mr. Chaban and the City. Was there Proximity in this case?

[ 17 ] Mr. Chaban does not disagree with the above characterization of the law. However, he says that there was proximity in this case for three reasons. Firstly, he complained to the City on November 7, 2017 about the Neighbour improperly installing his woodstove. He then contacted them on November 17, 2017, warning the City not to issue a permit. Otherwise, serious health consequences would result for him and his wife. This interaction, says Mr. Chaban, sets him apart from a regular member of the public. [ 18 ] Secondly, he says that the City stepped outside its role as regulator in this case.

The inspection reports indicated that not only did the City inspect the woodstove, but the inspectors gave advice on what remained deficient and advised the Neighbour on how to remedy them. For that reason, the City’s role morphed from that of regulator to advisor. This then resulted in a relationship that was sufficiently proximate to ground a duty of care. [ 19 ] Lastly, he says that the City lied to him about not having jurisdiction to enforce the Fuel Regulation . He was initially told by the City that it was not responsible for Regional District complaints.

He later found out that the Regional District of the Central Okanagan claim that they were also not responsible. This, along with the City’s failure or refusal to enforce the regulation gave rise to proximity. [ 20 ] The concept of proximity was not precisely defined by the Supreme Court of Canada. Nor does such a concept lend itself to a precise definition.

Nevertheless, the court in Wu offered this guidance at para. 59: [59] Typically, if a private law duty of care is recognized, it will arise from specific interactions either between the public authority and the claimant sufficient to create the necessary proximity or in the context of a statutory scheme: Imperial Tobacco at paras. 45-46. An example of such an approach is found in Fullowka v. Pinkerton’s of Canada Ltd. , 2010 SCC 5 , where the Court emphasized the specific features of the relationship between the plaintiffs and the regulator in the circumstances of the case.

There, a combination of factors, including the regulatory regime and the interactions and knowledge of regulators, were necessary to ground a finding of proximity. Vlanich v. Typhair , 2016 ONCA 517 , para. 31 , helpfully explains how proximity may arise between a public authority and a member of the public where a public authority assumes responsibility for ensuring compliance with standards. [ 21 ] Dealing firstly with the statutory scheme, Mr. Chaban says that the City was negligent in issuing the permit. The permit was issued under District of West Kelowna Building Regulation Bylaw 2009 No. 0086.

In a very general way, this bylaw deals with the administration of building and construction.

Section 9 of the bylaw spells out the process for applying for a permit. In my view, nothing about s. 9 or indeed the entirety of the bylaw leads me to conclude that the statutory scheme is one that inherently creates a relationship of proximity between Mr. Chaban and the City. If anything, the bylaw puts the reader on notice that such a proximity does not exist. For example, s. 3.2 of the bylaw says: 3.2 This bylaw has been enacted for the purpose of regulating construction within the District in the general public interest.

The activities undertaken by or on behalf of the District pursuant to this bylaw are for the sole purpose of providing a limited and interim spot checking function for reasons of health and safety of persons and property.

It is not contemplated nor intended, nor does the purpose of this bylaw extend: 3.2.1 to the protection of owners, owner/builders or contractors from economic loss; 3.2.2 to the assumption by the District or any Building Inspector of any responsibility for ensuring the compliance by any owner, their representatives or any employees, contractors or designers retained by them, with the Code, the requirements of this bylaw or any other applicable enactments respecting safety; 3.2.3 to providing any person a warranty of design, workmanship or materials with respect to any building or structure for which a permit is issued under this bylaw; and, 3.2.4 to providing a warranty or assurance that work undertaken pursuant to permits issued by the District is free from latent, or any defects. [ 22 ] And further, s. 19.2 says this: 19.2 It is the obligation of the owner or the owner’s agent to obtain inspections.

No duty to inspect is cast upon the Building Inspector or the District due to the overriding obligation of the owner to ensure compliance with the Code and this bylaw. [ 23 ] Accordingly, I find that no relationship of proximity exists by virtue of the bylaw. And a duty of care argument based thereon fails. [ 24 ] I now turn to the three specific points Mr. Chaban raised in his dealings with the City that he says resulted in proximity. Previous complaints [ 25 ] Mr. Chaban did complain to the City that the Neighbour had an improperly installed stove, and then did try to urge the City to not issue a permit.

However, I cannot imagine that these types of interactions were the ones contemplated by Wu that would give rise to proximity. Citizens make complaints to municipalities all the time. There is nothing about what Mr. Chaban said to the City, or his conduct, that takes this outside the normal interaction between a municipality and a citizen.

It also cannot be that all of this developed jurisprudence limiting a public body’s liability vis-à-vis an individual could be circumvented with a quick phone call or a short email. [ 26 ] As Harris J.A. noted in Wu , having direct contact does not advance the proximity ball all that much. In many types of relationships, including one where an applicant seeks a permit, some direct transaction is inherent. An applicant necessarily contacts the authority for the request. And the authority necessarily gives some form of a response.

At para. 65 of Wu , the Court said: [65] While the relationship between the parties can be described as “direct and transactional”, this does not materially advance the proximity analysis because such a relationship is both inherent in and an inevitable and necessary part of the regulatory framework, in which individuals apply for permission to undertake a certain activity. The same applies to virtually any licensing or permitting process. I

do not think that the inevitable reality of a specific individual making an application to a regulator, and thereby entering into a direct transactional relationship with the regulator, advances the argument that proximity exists in the sense that the regulator has come under an obligation to have particular regard for the interests of the applicant beyond the regulator’s obligation to fulfil his or her statutory duties. [ 27 ] For a similar reason, making a complaint to the municipality, and then threatening to sue, does not create a relationship of proximity.

It is nothing more than an ordinary interaction between a member of the public and the City receiving a complaint. Nor does Mr. Chaban warning the City about the potential health hazard take the relationship to the next level. As the Court observed in Wu at para. 67 : [67] I agree that a failure by a public official to process a development application according to the law could in some circumstances cause reasonably foreseeable harm to the economic interests of an applicant where there is a clear right to a permit.

In this case, it may have been reasonably foreseeable that a failure to process the development permit application in accordance with the law might interfere with private property rights of the applicant. Again, much the same could be said about any scheme of regulation which involves granting or withholding permission to engage in certain kinds of activity. But none of this takes the relationship between the parties outside what is inherent in the scheme of regulation. Moreover, reasonable foreseeability is now treated as a secondary factor. Primary emphasis is given to proximity.

Reasonable foreseeability does not create proximity: Deloitte paras. 32-6 . [ 28 ] For the above reason, even if it could be said that the risk to Mr. Chaban’s health is a reasonably foreseeable consequence of the City granting the permit, that does not render the relationship a proximate one. Beyond being regulators [ 29 ] The second factor on which Mr. Chaban relies is the way in which the inspections were done. On November 23, Nov 29, and Dec 2, 2017, five inspection reports were generated by three different inspectors.

Beyond simply saying “pass/fail”, the inspectors detailed what was deficient, and spelled out what more would be required in order to pass inspection. For example, on November 23, Inspector Ganczar noted that a rear heat shield needed to be installed and that a CO detector needed to be mechanically fastened in the same room. On November 29, Inspector Brzezynski noted that there was insufficient combustible air for the woodstove, and that the flashing and sealing of the exterior were incomplete.

Further on November 29, Inspector Newmarch noted that a non-combustible trim was required at the soffit penetration to prevent ingress of insects and animal. Inspector Newmarch also required confirmation from a certified HVAC technician to confirm that adequate combustible air would be available for the appliance. [ 30 ] On the basis of the above comments (and those like it), Mr. Chaban says that the City went beyond being regulators and have, in essence, become advisors. With respect, I cannot give any weight to that argument whatsoever.

What the inspectors said in those reports are exactly the type of comments an applicant would expect at an inspection. If the applicant does not meet certain requirements, the applicant would expect to know why, and to know what more may be needed to pass inspection. All of the documents before the Court evidence an absolutely typical interaction between a licensing body and an applicant.

Indeed, it would be extremely unusual, and highly frustrating for the Neighbour, had the inspector simply said “Fail” without providing any reason why, and advising the Neighbour what more may be required. [ 31 ] Additionally, Mr. Chaban noted that on Mr. Newmarch’s inspection report of November 29, 2017, Mr. Newmarch noted that he required confirmation from an HVAC technician that adequate combustible air was available for the appliance. Mr. Chaban claimed that no HVAC report was ever generated and that Mr. Newmarch nevertheless proceeded to approve the inspection on December 2, 2017. On that point, Mr.

Chaban was simply wrong. A certified HVAC technician, Mr. Cody Forsyth, did in fact provide the required confirmation on November 29, 2017. In short, nothing about the conduct of the City gave rise to the proximity claimed by Mr. Chaban. [ 32 ] Equally important, if not more so, one must remember that it was not Mr. Chaban who applied for the woodstove permit; it was the Neighbour. Mr. Chaban was not even involved in those inspections.

If a relationship of proximity is said to exist arising from these inspections (which I have specifically found not to be the case), it would at best exist between the City and the Neighbour. Not between the City and Mr. Chaban. Here, I specifically reject Mr. Chaban’s contention that proximity exists because he was not involved in the inspections, and therefore, greater reliance was placed on the City to comply with the permitting scheme. In my view, Mr. Chaban has confused the concepts of “reasonable foreseeability” with proximity.

On the weight of the authorities, proximity can be created by the existence of specific interactions. However, it is not created because of their absence. [ 33 ] I find this case to be entirely analogous to Suncourt Homes Ltd. v. Cloutier , 2019 BCSC 2258 . In that case, the plaintiff Suncourt was a neighbour of the defendants the Cloutiers. In working on a project, the Cloutiers removed a pond, vegetation and other materials. This was in contravention of the City of Kelowna’s Soil Removal and Deposit Regulation Bylaw No. 9612 (January 10, 2010) .

In addition to the Cloutiers, Suncourt also sued the City of Kelowna for allowing the project to proceed in contravention of the soil bylaw. In analyzing whether proximity existed between Suncourt and the City of Kelowna, Madam Justice Watchuk went through the analysis in Wu and concluded that neither the legislative scheme nor the specific interactions between Kelowna and Suncourt resulted in proximity.

Most poignantly, the court made a comparison to the facts in Wu , saying at para. 158 that “if there is no proximity between a regulator and an applicant for a permit, there is even less between a regulator and the neighbour of such an applicant”. [ 34 ] Those words are completely applicable in this case. There is nothing in the legislative scheme that suggests a relationship of proximity. Further, nothing about the manner in which the inspections were conducted went beyond the inherent and ordinary interactions between a licensing body and an applicant.

Had the Neighbour been before the Court today, I would have held there to be no proximity between him and the City. It follows that Mr. Chaban is no closer to the City than the Neighbour. It was not him who applied for a permit. It was not his house at which the inspections were done. Mr. Chaban is no more proximate to the City of West Kelowna, than Suncourt was to the City of Kelowna. Consequently, a duty of care was not created by virtue of the City’s conduct in this case. Failure to Enforce a Regulation [ 35 ] Finally, Mr.

Chaban says that a duty of care arose because of the series of complaints he made to the City who continued to refuse to enforce the Fuel Regulation . Specifically, s. 2 of the regulation permits only the burning of solid fuel, defined as follows:

"solid fuel" means

a) untreated, seasoned wood or wood products, including, without limitation, cordwood, woodchips, sawdust and wood left over from cutting lumber to length,

b) manufactured firelogs,

c) pelletized fuel, and

d) corn kernels and seed hulls; [ 36 ] The City does not dispute this, but stated that it was a policy decision not to enforce the regulation. And that this policy decision cannot be the basis of liability. [ 37 ] I find that the City’s argument is sound and abundantly supported by the authorities. Returning to the Kamloops case, supra , in which the Supreme Court of Canada cited Anns with approval at p.9: His Lordship then adverted to the fact that frequently policy decisions are affected by budgetary considerations.

It is for the local authority to decide what resources it should make available to carry out its role in supervising and controlling the activities of builders. For example, budgetary considerations may dictate how many inspectors should be hired for this purpose, what their qualifications should be, and how often inspections should be made. He approved the statement of du Parcq L.J. in Kent v.

East Suffolk Rivers Catchment Board, [1940] 1 K.B. 319, at p. 338, that public authorities have to strike a balance between the claims of efficiency and thrift and whether they get the right balance can only be decided through the ballot box and not in the courts. [ 38 ] Accordingly, the City cannot be found to be negligent based on the lack of enforcement of a provincial regulation. No proximity or duty of care was created by virtue of it. And an alleged breach of this statutory duty does not give rise to a cause of action. It, therefore, matters not what a City employee may or may not have told Mr.

Chaban about which entity is responsible for enforcing the Fuel Regulation . The City has decided not to enforce it and they cannot be found liable thereby. [ 39 ] Although I have analyzed each of Mr. Chaban’s argument individually, I have also considered all of his arguments collectively, in conjunction with the statutory scheme. I find that when I consider all of the circumstances, no proximity exists between Mr. Chaban and the City that would give rise to a duty of care. His action against the defendant cannot succeed.

Other policy reasons for negating a duty [ 40 ] Since I have found that no duty of care exists in this case, it is unnecessary to go onto the last step of the Anns/ Cooper analysis to consider whether there are policy reasons not to recognize such a duty of care. Other Cases [ 41 ] Mr. Chaban cited a number of cases in which a duty of care was found to exist between a public body and a private citizen. These include the following cases: • Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General) , 2015 BCCA 163 • R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 • Hill v.

Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 • Fullowka v. Pinkerton’s of Canada Ltd. , 2010 SCC 5 • Taylor v. Canada (Attorney General) , 2012 ONCA 479 • Waterway Houseboats Ltd. v. British Columbia , 2019 BCSC 581 • Holland v. Saskatchewan , 2008 SCC 42 [ 42 ] From these cases, it is clear that there can be a relationship of proximity between a public body and a private citizen. However, as has been observed on numerous occasions, each relationship will be different and it is unlikely that two cases will be exactly the same. Having reviewed the authorities Mr.

Chaban cited, I do not see that any of them is exactly analogous to his situation. Indeed, as I observed above, I find the case of Suncourt to be the closest in terms of its facts. If anything, I find that the plaintiff in Suncourt to be in a better position to argue proximity since in that case, it was Kelowna’s own bylaw they were accused of ignoring. In this case, Mr. Chaban complains that the City is not enforcing a provincial regulation. But be that as it may, the analysis ought to be a principled one. Having gone through the framework in Wu , I conclude that there is no proximity in the case at bar.

Other Comments and allegation of Bad Faith [ 43 ] Throughout Mr. Chaban’s submissions, he placed some emphasis on the fact that the Neighbour is a City employee and accuses the City of being corrupt and having acted in bad faith. For example, he noted that 3 different inspectors were dispatched to expedite the Neighbour’s application for a permit. He also complains that the last of these inspections was done on a Sunday, incurring overtime. [ 44 ] On the evidence before the Court, I see no basis to find bad faith or corruption.

The inspections were properly documented and the record clearly shows the basis upon which the inspectors came to their respective conclusions. The permit was ultimately granted because all of the previous deficiencies were corrected. I do not know whether a personal relationship exists between the Neighbour and any of these inspectors. I also do not know whether an inspector would or would not have worked on a Sunday otherwise. But, in my

view, none of that matters in this case. They simply add nothing to the proximity analysis as between Mr. Chaban and the City.

Summary and Conclusion [ 45 ] In order for Mr. Chaban to succeed in suing the City in negligence, he must establish that the City owes him a duty of care. This turns on whether the relationship between the two parties is sufficiently proximate as to create this duty. Having reviewed the legislative schemes (both the building regulation bylaw and the Solid Fuel Burning Domestic Appliance Regulation ) and the specific interactions between Mr. Chaban and the City, I conclude that no such proximity exists in this case. For all of the foregoing reasons, Mr. Chaban’s action is dismissed. _________________________ The Honourable A. Tam Provincial Court Judge