R. v. 1127022 B.C. Ltd., 2021 BCPC 361

Citation: R. v. 1127022 B.C. Ltd. 2021 BCPC 361 Date: 20210924 File No: 242351-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. 1127022 B.C. LTD. and MOHINDERPAL SINGH VIRK ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. MACDONALD Counsel for the Crown: W. Aujla Appearing on their own behalf and on behalf of 1127022 B.C. Ltd.: M.S. Virk Place of Hearing: Surrey , B.C. Date of Hearing: September 24, 2021 Date of Judgment: September 24, 2021

[1] THE COURT: Mohinderpal Singh Virk and 1127022 B.C. Ltd., (the “Company”) (collectively, the “Defendants”), are chargedon five counts; three counts are a breach of a court order made under s. 263.1 of the Community Charter, and two counts are infractionsunder a Surrey Zoning By-law. [2] All counts relate to property located at 17854 - 96th Avenue, Surrey, British Columbia, (the “Property”). The Company is theregistered owner of the Property. Mr. Virk is the director and officer of the Company and appears today as its agent.

At all times he wasthe point of contact for the Company. [3] On August 13, 2019, after the Defendants pleaded guilty to various offences on file 232794-1, Judicial Justice Blackstone issuedan order under s. 263.1 of the Community Charter (the “Order”). The Order is filed as Exhibit 1 in this hearing. [4] The terms of the Order relate to the same property and the same defendants as this Information. The Order included terms thatthe Defendants, by November 13, 2019: - remove all 96.1 cubic metres of soil identified in the volume 1 area of

Schedule A to the Order; - remove all 664.9 cubic metres of soil identified in the volume 2 area of

Schedule A to the Order; - obtain an ESC permit; and - remove all vehicles exceeding 5,000 kilograms licenced G.V.W. from the Property. [5] On November 20, 2019, Surrey By-Law Officer Koo met with Mr. Virk at the Property and personally handed him the Order.They reviewed the terms of the Order and Mr. Koo told Mr. Virk what he needed to do about the soil and to apply for the requiredpermit. [6] Mr. Koo returned to the Property on February 24, 2020 in response to a public complaint. He observed that nothing had changedwith respect to the soil and the Defendants had not complied with the Order. Mr. Koo called Mr.

Virk and told him he had to complywith the Order by the end of April 2020. [7] Mr. Koo returned to the Property on June 7, 2020. The soil that was to have been removed pursuant to the Order remained on theProperty unchanged. In addition, he saw on the Property one overweight vehicle and an associated trailer, two shipping containers, onewith signage for Tybo Contracting Limited, a large amount of construction materials, one garbage container with garbage, one pickuptruck, one backhoe and approximately 11 new soil tips. [8] Mr.

Koo took photos on June 7, 2020 that are filed as Exhibit 8 and on December 8, 2020 that are filed as Exhibit 9. Theyclearly support Mr. Koo's evidence of what he observed on the Property. [9] Mr. Shore is a surveyor for the City of Surrey. He attended on the Property with Mr. Koo on December 8, 2020.

He hadreviewed a previous survey of the Property from July 2019 and he, himself, took measurements of the soil levels on December 8, 2020.As a result, it showed a small degree of variability but soil levels were essentially the same. [10] Counts 1, 3 and 4 are offences pursuant to s. 263.1(3) of the Community Charter which states: A person who fails to complywith an order under subsection (1), which the August 13th, 2019 order was, commits an offence. [11] Count 1 is that the Defendants, that is Mr. Virk and the Company, did not remove the soil as required by the Order.

They hadalready pleaded guilty with respect to the soil being on the Property and the Order was to remove it. The evidence of Mr. Koo and Mr.Shore, as well as the photos, clearly show on June 7, 2020 that the Defendants had not removed the soil and thus had not complied withthe Order. [12] The Defendants are guilty of Count 1. [13] Count 3 is that the Defendants did not remove all vehicles exceeding 5,000 kilograms licenced G.V.W.

The Order also directedthe Defendants that for a period of one year from November 13, 2019 “to not suffer or permit” the parking or storage of a vehicleexceeding 5,000 kilograms licenced G.V.W. on the Property. [14] Mr. Virk said that he allowed Tybo Contracting to place vehicles and equipment on the Property on the proviso that theychecked with the City to ensure it was okay. Mr. Atwal gave evidence, most of which was hearsay regarding communications he hadwith the City of Surrey.

He had no documents to prove his statements that the City was aware of his materials being on the Property.There is no evidence that the City approved Tybo Contracting or anyone parking their vehicles or storing equipment and supplies on theProperty. In any event, it is the property owner that bears the responsibility to ensure they are in compliance with the City regulationsand by-laws. The registered owner is the Company and they act through their agent, Mr. Virk. [15] To “not suffer or permit” was addressed in the case of R. v. Dan Gamache Trucking Inc., 2005 BCSC 1487.

This case involvedregulatory offences under the Motor Vehicle Act. The Court considered the words “allow,” “suffer,” “permit” in regulatory offences. Topermit was a passive action but one in which the person charged had control. Citing the case of R. v. Sault Ste. Marie, (SCC), 40 C.C.C. (2d) 353: The test is a factual one, based on an assessment of the defendant's position with respect to the activity which it undertakes and whichcauses pollution. If it can and should control the activity at the point where the pollution occurs, then it is responsible for the pollution. [16] Here, Mr.

Virk clearly had control over whether Tybo Contracting or anyone parked vehicles on or stored equipment on theProperty. He did not exercise that control and both of the Defendants are guilty of Count 3.

[ 17 ] Count 4 is that the Defendants were directed under the Order for a period of one year from November 13, 2019 to not allow or permit soil or other material to be deposited on the Property. The evidence from Mr. Koo is clear there was additional soil brought onto the Property. This evidence is supported by the photos he took on June 7, 2020. There were 11 new tips or piles of soil material that were not there when Mr. Koo attended previously.

By allowing or permitting the soil or other material to be deposited on the Property, the Defendants are in breach of the order. [ 18 ] They are guilty of Count 4. [ 19 ] Counts 5 and 6 pertain to a breach of the Surrey Zoning By-law for use contrary to zoning in the R-A zone. That is filed as Exhibit 6. The relevant zoning by-law is

Part 2,

Section A ,which is filed as Exhibit 3 that states: [as read in] No person shall use land or buildings for any use except for those specifically permitted in the zone in which the land or building is located, whether in that zone or in

Part 4 general provisions. Any use not specifically permitted in a zone is an unlawful use. [ 20 ] The Property is zoned R-A. The relevant part of the by-law is

Part 12 that sets out the allowed use. There is no provision in that Part for industrial use, storage or outdoor storage. [ 21 ] Count 5 pertains to shipping containers being stored on the Property. The general provisions of the by-law deal with shipping containers.

Part 4, s. 3 states: [as read in] A shipping container shall only be used, placed, stored, repaired, cleaned, upgraded or modified on a lot in an industrial zone and in such cases the shipping container must comply with the requirements of the zone as if it were a building or structure. Where a shipping container is necessary and accessory to construction in progress, and such construction is the subject of a current and valid building permit, a shipping container will be permitted. [ 22 ] Mr. Koo gave evidence that he checked and there was no building permit in effect for the Property or the Defendants.

The photos clearly show a shipping container being stored on the Property. That is not a permitted use in this zone. [ 23 ] The Defendants are guilty of Count 5. [ 24 ] Count 6 is that the Defendants did unlawfully suffer or permit the Property to be used for parking or storage of construction materials, equipment and/or machinery. The evidence is clear the Property was being used for industrial storage. There was a backhoe, trailer, other commercial and construction materials, pipes, pipe joints and a commercial garbage bin on the Property. Mr. Atwal and Mr.

Virk gave evidence that a contractor was doing work in the area. Tybo Contracting stored the material on the Property. This is not permitted in this zone. The Defendants had the responsibility to control the Property and they did not do so. [ 25 ] Mr. Virk submits that no one told him about the breaches on June 7, 2020 when Mr. Koo attended the Property and took photos. He said he heard nothing until December 2020. That is not the test. He, personally, and as the agent for the Company, have the obligation to ensure compliance with by-laws. It is no one else's responsibility. Even if Mr. Koo had told Mr.

Virk on June 7, 2020 that he was in breach, nothing would change with respect to these charges. [ 26 ] The defendants are guilty of Count 6. (REASONS FOR JUDGMENT CONCLUDED)