Chernen v. Robertson Date:, 2014 BCPC 241

Citation: Chernen v. Robertson Date: 20141016 2014 BCPC 0241 File No: 14-50047 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GLEN CHERNEN APPLICANT AND GREGOR ROBERTSON RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE M.E. RAE Appearing for Applicant : G. Chernen Appearing for Respondent : D. Gruber Place of Hearing: Vancouver , B.C.

Date of Hearing: October 16, 2014 Date of Judgment: October 16, 2014 [1] Mr. Chernen has filed an application pursuant to

section 45.2 (9) of the Vancouver Charter for a declaration that theRespondent, Mr. Robertson is no longer a candidate for the position of Mayor of Vancouver in the upcoming municipal election. Thebasis for his challenge is that the Respondent has not complied with

section 45.2 (4) (

b) which states that one of the bases forchallenging a nomination is that the nomination was not made in accordance with sections 43 to 45 of the Vancouver Charter. [2] There are strict time limits within which applications to challenge nominations must be completed. We are within those timelimits. [3] Specifically, Mr. Chernen says that

section 44 (

d) states that a nomination for office must include the residential address of theperson nominated, and the mailing address if this is different. He alleges that the address provided by the Respondent in his nominationdocument includes an address that is false and misleading. [4] The nomination document was submitted by the Respondent on September 30, 2014. He states his residential address to be aresidence in Kitsilano. On July 6, 2014 an

article appeared in the Vancouver Sun which contained a statement from the Respondentindicating that he and his wife were separating and that he had moved out of the Kitsilano house and into an apartment downtown. Mr.Chernen says that the information as to the Respondent’s address in the nomination documents is untruthful and deliberately misleading. [5] The Respondent and his wife have both filed affidavit evidence confirming that the address on the nomination form is theaddress of a residence in Kitsilano which he and his wife purchased in 2013. He and his wife are on the title.

He deposes that since theirseparation he has been living in an apartment in downtown Vancouver while the family works out what their future will hold. His wifecontinues to reside in the residence, and he keeps some belongings there, pays the bills, and sometimes has meals there. His wifeconfirms that he has a key and pays the bills including the property tax. [6]

Section 7 of the Vancouver Charter defines “residential address” as follows: “residential address includes an indication of the area in which a person lives if no other specific designation is reasonably available” [7] Accordingly the term “residential address” as defined in the Vancouver Charter carries its ordinary meaning, and includes amore general description where there is no specific designation available.

That is not the case here, since we are dealing with a specificaddress. [8] The term “residential address” has been interpreted in a number of cases and seems to be a flexible term according to thecontext in which it is used. The term has been interpreted in the context of statutes, wills, contracts, and the Income Tax Act to name afew. It has been defined as “the place where an individual eats, drinks and sleeps, or where his family or his servants eat, drink andsleep” (per Bayley J., R. v. North Curry, 4 B. & C. 959).

It has been noted that it is not unusual for a person to have two permanentresidences at the same time and the fact that a person spends time in both places whether for a brief or lengthy period of time does notnegate the fact that he could be resident in both places. In Kamloops (City) v. Northland Properties Ltd. 2000 BCCA 344 76 B.C.L.R. (3d) the Court held that there can be no hard and fast line in terms of length of stay only that can be drawn as a matter oflaw. Many other factors are involved in determining “residence”. [9] In “The Owners”, Strata Plan NW 499 v.

Louis 2009 BCCA 54 the Court said at paragraph 29: “I agree with the chambers judge that there is an element of permanency to the meaning of the words under consideration. But for aperson to reside at a place does not require the place to be that person’s exclusive or even primary abode.” [10] The Respondent is an owner of the residence at issue. His family lives there. He is and was at the time he signed thenomination documents living primarily in another residence on what may be a temporary basis while he and his wife work out whetheror not they have a future together.

He pays the bills related to the residence. He has a key. Many of his personal possessions remain inthe residence. He sometimes has meals there. [11] I would note that Mr. Chernen does not take issue with the affidavits of the Respondent and his wife. His argument is basedsolely on the fact that the Mayor’s office confirmed in July that the Respondent had moved into an apartment downtown. [12] I am satisfied that there was nothing false or misleading about the address given by the Respondent on the nominationdocument. Mr. Chernen has given the term “residential address” a very narrow meaning.

It is a much more ambiguous term than thatespoused by Mr. Chernen, and in the context of these facts, I find that the term “residential address” as defined by the VancouverCharter is broad enough to encompass the situation described by the Respondent. [13] Pursuant to

section 45.2 (9) of the Vancouver Charter I confirm the Respondent as a candidate for Mayor in the MunicipalElection presently set for November. COSTS

[ 14 ]

Section 45.2 (10) provides that this Court, which has jurisdiction to hear these applications, may order that the costs of a challenge, within the meaning of the Supreme Court Civil Rules may be paid in accordance with the order of the Court. [ 15 ] This is the third application that Mr. Chernen has brought against the Respondent in the context of this election. One of those applications was dismissed by the Supreme Court of British Columbia as an abuse of process. The other one has not yet been set for hearing. In my view this application was without merit. The thrust of Mr.

Chernen’s challenge as I understand it was the fact that there was something dishonest about the residential address. There was not a whiff of anything intentionally misleading or dishonest as to the Respondent’s declared residence. The most that could be said about the Respondent is that there might be some understandable confusion as to which residence to designate as his residential address. Accordingly I order costs against Mr. Chernen. Margaret E. Rae Provincial Court Judge