Peter Gerard Coffey Plaintiff v. Fraser Valley Regional District, 2018 BCSC 959

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Coffey v. Fraser Valley (Regional District), 2018 BCSC 959 Date: 20180612 Docket: S31858 Registry: Chilliwack Between: Peter Gerard Coffey Plaintiff And Fraser Valley Regional District Defendant Before: The Honourable Mr. Justice N. Brown Reasons for Judgment Counsel for Plaintiff: C.R. Terepocki Counsel for Defendant: A.M. Bookman Place and Date of Trial/Hearing: Chilliwack, B.C. December 13, 2017 Place and Date of Judgment: Chilliwack, B.C. June 12, 2018 [ 1 ] The plaintiff, Peter Gerard Coffey, seeks a variety of damages for alleged trespass and violations of his rights under s. 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [ Charter ] to be free from unreasonable search and seizure by the defendant Fraser Valley Regional District, (“FVRD”). The breach is alleged to have occurred when representatives of the defendant attended the plaintiff’s property to conduct inspections to ensure bylaw compliance. [ 2 ] The defendant seeks an order dismissing the plaintiff’s claim pursuant to Rule 9-6 of the Supreme Court Civil Rules .

FACTS [ 3 ] The FVRD is a regional district within the definition of the provisions of the Local Government Act , R.S.B.C. 2015, c. 1 [ LGA ]. [ 4 ] The plaintiff resides at 41351 Morton Road, Deroche, B.C. (the “Property”). That address is located within the FVRD. The Property is owned by the plaintiff’s brother, Joseph Martin Coffey (“Joseph Coffey”); the plaintiff is his tenant. [ 5 ] The plaintiff deposed he is licenced to grow medical marihuana under the Medical Marihuana Access Regulations, S.O.R./2001-227 [ MMAR ] (repealed since 2014-03-31 and replaced by S.O.R./2013-119 ).

On the Property are several outbuildings which the plaintiff used in the production of medical marihuana. He used one building to grow the plants, another to dry them, another for harvesting and processing, and yet another for packaging. [ 6 ] On September 30, 2013, a solicitor for Greenleaf Natural Care Products Inc. (“Greenleaf”) wrote the FVRD regarding her client’s application to the Office of Controlled Substances/Health Canada for a Research and Development License to grow marihuana for medical purposes at the Property.

The letter noted that the subject site was already an established production facility for medical marihuana under the existing regulations. [ 7 ] In 2014, Joseph Coffey filed a Crown Land Tenure Application with the Province for the purpose of remediating a building that erroneously was built, in part, off the Property and onto the Crown land, which directly abuts the Property.

FVRD staff recommended that the Crown Land Tenure application be denied, in part because the structure referred to in the application had been built without a building permit or a development permit. [ 8 ] In February 2014, an RCMP member asked Jennifer Wells, a Bylaw, Permits and Licences Technician with the FVRD, for information regarding bylaws for medical marihuana grow operations in the Deroche area; and in particular, for the Property. On review of the FVRD files for the Property, Ms.

Wells noted that while the FVRD had received a “letter of intent” to grow marihuana at the Property, it had not received any building permits or applications for the Property, aside from the original residential building permit

issued on April 6, 1978. [ 9 ] Ms. Wells’ further review of FVRD files located a letter dated March 14, 2014, from the Director of Planning and Development at the FVRD, written in response to the inquiry from Greenleaf. Ms. Wells noted that the director had advised that building permits and development permits would be required for any new construction on the Property related to the proposed Producer’s License under the Marihuana for Medical Purposes Regulations , S.O.R./2013-119 [ MMPR ] and that no applications had been received to date. [ 10 ] In her affidavit in this proceeding, Ms.

Wells noted many structures require building permits. She explained the requirements are based on, among other things, the function of the structure and the square footage. She further explained that in order for her to determine whether the structure referred to in the Crown Land Tenure application required permits, she had to inspect it to determine its size and intended purpose.

She also needed to determine the exact location of the structure and its proximity to Deroche Creek, to determine whether it required a development permit. [ 11 ] On April 2, 2015, over a year before FVRD officials attended the Property, Ms. Wells wrote to Joseph Coffey (the plaintiff’s brother), with copies to the Property’s occupants, notifying him that the FVRD had become aware of construction without a permit at the Property and requesting his cooperation to have FVRD staff attend the Property at a mutually convenient date to conduct an inspection. Ms.

Wells never received a reply from Joseph Coffey, the plaintiff, or any other occupant of the residence. [ 12 ] In her affidavit, Ms. Wells explained that although the LGA and the Building Bylaw do not require FVRD staff to have the permission of the land owner or occupant to conduct a bylaw inspection, her usual practice was to try to work with the landowner or occupant to find a convenient date for an inspection, as a courtesy. [ 13 ] On September 15, 2015, Ms.

Wells learned of a complaint of someone discharging raw sewage into a creek from the Property; and another, that gunshots had been fired from an area near the Property. In December 2015, the RCMP informed Ms. Wells an investigation was occurring at the Property regarding possible offences under the Controlled Drugs and Substances Act , S.C. 1996 c. 19 [ CDSA ]. [ 14 ] The reports of gunshots and the CDSA investigation caused Ms. Wells to have safety concerns.

In January 2016, she contacted the RCMP to request a police escort to ensure the safety of FVRD staff while they were attending the Property to conduct a bylaw inspection. [ 15 ] On January 13, 2016, an RCMP officer phoned Ms. Wells and informed her the police were conducting an investigation of the Property that day and the residents had been removed for 24 hours. The officer told Ms. Wells that FVRD staff should attend immediately in order to safely inspect the Property for bylaw violations. [ 16 ] Accordingly, that day Ms.

Wells attended the Property with her colleague, Rudy Weiler, to inspect for bylaw violations. From her inspection, she determined a number of structures on the Property had been built without building or development permits, as required. They posted “No Occupancy” and “Stop Work” notices on the structures that violated the Building Bylaw and the Official Community Plan. [ 17 ] Ms. Wells deposed that neither she, nor Mr. Weiler, entered any occupied residence on the Property.

She noted all the structures that were inspected were outbuildings that were not being used as residences. [ 18 ] On January 18, 2016, the FVRD received a letter from counsel for Joseph Coffey, Mr. Terepocki, in which he advised he considered the FVRD actions of January 13, 2016, to constitute a trespass, as the entry onto the Property was done without an administrative warrant. [ 19 ] The plaintiff alleges the RCMP reached out to the FVRD for information while they were preparing their information to obtain a search warrant.

He argues the search warrant that was ultimately obtained allowed only RCMP members to access the Property for a limited time of seven hours, and for the purpose of searching for marihuana plants in excess of amounts set out in the plaintiff’s MMAR licence, equipment that may have been used to produce the excessive marihuana, and electronic and paper documents related to the excessive production of marihuana. [ 20 ] The plaintiff maintains that at no point did he consent to FVRD officials coming onto the Property.

He argues the timing of the search was entirely unreasonable and it could not have come at a worse time. [ 21 ] The plaintiff asserts that as a result of the warrantless entry on the Property by FVRD officials, he was forced to shut down his medical marihuana grow site, which he was lawfully allowed to run in accordance with his valid medical marihuana license. As a result, the plaintiff alleges, he was prevented from using the buildings to produce medicine he relies on for mental and physical health issues; and as such, suffered a great deal of anxiety and stress.

As a result, he and other medical marihuana users he grew for have been forced to purchase medical marihuana from a licensed producer at a substantially higher retail price than if they grew the marihuana themselves. [ 22 ] The balance of the plaintiff’s Statement of Facts appears to be legal argument. [ 23 ] The defendant agreed the search warrant provided the permissions described by the plaintiff but maintained the warrant did not prohibit any other person from attending the Property; and that the plaintiff’s assertion to that effect is incorrect. [ 24 ] The defendant maintains the entry onto the Property had no effect on the plaintiff’s medical marihuana grow site.

It also denies any impact on other medical marihuana users who are, in any event, not parties to this case. Suitability for

summary judgment under Rule 9-6 [ 25 ] In 4 Corners Properties Ltd. v. Boffo Developments (Smithe) Ltd ., 2013 BCSC 1926 [ Boffo ], Savage J., as he then was,

summarized the nature of a Rule 9-6 application, starting at para. 20: [20] The

summary judgment rule serves an important purpose. In the civil litigation system, it prevents claims or defences that haveno chance of success from proceeding to trial. As the Supreme Court of Canada noted in Canada (Attorney General) v. Lameman, 2008SCC 14 [Lameman], "[t]rying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation andthe justice system" (para. 10). It is therefore essential that claims without any chance of success be weeded out at an early stage.Conversely, it is essential to justice that claims which disclose real issues should proceed to trial. [21] In Lameman, the Court said: [11] … The defendant who seeks

summary dismissal bears the evidentiary burden of showing that there is “no genuine issue ofmaterial fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423, atpara. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario JockeyClub (1995), (ON CA), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), (AB KB), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute orcounter the defendant’s evidence, or risk

summary dismissal: Murphy Oil Co. v. Predator Corp.(2004), 365 A.R. 326, 2004 ABQB 688,at p. 331, aff’d (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must “put its best foot forward” with respect to the existence ornon-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v.

Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32.The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are stronglysupported by the facts: Guarantee Co. of North America, at para. 30. [Emphasis Added.] [22] The jurisdiction under Rule 9-6 is intended to allow the court to determine on a

summary basis whether there is a genuine issuestanding between the plaintiff’s claim and judgment: See Lameman at para. 10; Leclair v. Ontario (Attorney General) (2008), (ON SC), 93 O.R. (3d) 131, aff’d, 2009 ONCA 471. [23] A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future if the matter isallowed to proceed. The determination made must be based on the pleadings as framed and the evidence before the court, not onsuppositions about what might be proven if the claim is allowed to proceed: Lameman at para. 19. [26] Finally on this aspect, counsel for the plaintiff referred to Gayton v. Lacasse, 2010 ABCA 123: [10] We agree with our colleague's description of the general test for

summary judgment under Rule 159(2). The defendant bears theonus of proving there are no genuine issues to be tried. "The bar on a motion for

summary dismissal is high": Canada (Attorney General)v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. [11] Furthermore, where the ultimate outcome of a case may depend on the

interpretation of some statute or document, or on someother issue of law that arises from undisputed facts, the test for

summary judgment is whether the issue of law can fairly be decided onthe record before the court. Unsettled or complex legal issues and those intertwined with the facts can necessitate a full trial to provide aproper foundation for the decision: Tottrup v. Clearwater (Municipal District No. 99), 2006 ABCA 380, 401 A.R. 88 (Alta. C.A.) atpara.11. Discussion - Rule 9-6 [27] The plaintiff submits a Rule 9-6 application is a very drastic remedy, and that the FVRD has not discharged its burden. [28] There are no noteworthy material conflicts in the facts.

I find no genuine issue on a material fact that necessitates a trial. As fordetermining if the plaintiff has any real prospect of successfully establishing the alleged Charter breach, that can be reasonablydetermined based on established facts and existing case law. [29] As for the prescribed limitation for bringing an action, the parties presented thick case books and the plaintiff argued asextensively, or more, than what one would expect in a trial.

The facts in the cases are clear enough and the state of the law sufficientlysettled to determine if a trial could shed any light on the subject and on whether the plaintiff’s Charter infringement claim has any realchance of success. [30] I conclude that this claim is suitable for disposition pursuant to Rule 9-6. Expiry of Limitation Period Issue [31] Before considering the plaintiff’s claims, I must determine whether they are barred because they were brought outside thelimitation period contained in the LGA. [32] The defendant submits there is a limitation period and that it has expired.

The alleged breach occurred on January 13, 2016. OnJanuary 18, 2016, the plaintiff’s counsel wrote to the FVRD taking issue with its actions. The plaintiff’s Notice of Civil Claim (“NCC”)was filed on November 3, 2016, approximately 10½ months after the alleged breach. [33]

Section 735 of the LGA provides a six-month limitation period for claims against municipalities and regional districts for actsthat could have been done lawfully by the district or that the district believed were done lawfully. The

section provides: Limitation period for certain actions

735 All actions against a municipality or regional district for the unlawful doing of anything that (

a) is purported to have been done by the municipality or regional district under the powers conferred by

an Act, and (

b) might have been lawfully done by the municipality or regional district if acting in the manner established by law must be commenced within 6 months after the cause of action first arose, or within a further period designated by the council or board ina particular case, but not afterwards. [34] In short, the FVRD submits the plaintiff did not bring the claim within the six-month limitation period that s. 735 of the LGAprescribes and the LGA does not provide exceptions to this limitation period for extenuating circumstances.

The defendant submits,accordingly, s. 735 of the LGA clearly bars the plaintiff’s claim. [35] The plaintiff grants the claim in trespass is likely barred; but contends that the claim for a s. 24(1) Charter remedy continues,unaffected by the six-month limitation period. This raises the issue of whether the limitation period in the LGA applies to claims forCharter remedies brought outside that limitation period. This issue has not been considered in B.C. but has arisen in other Canadianjurisdictions. Prete v. Ontario (Attorney General) [36] The plaintiff relied primarily on Prete v.

Ontario (Attorney General) (1993), (ON CA), 16 O.R. (3d) 161(Ont. C.A.) In that case, the appellant was found not guilty of first degree murder. Eighteen months later, he commenced an action fordamages and a remedy under s. 24(1) for an infringement of his rights under s. 7 of the Charter. [37] The respondents moved to dismiss the action as, inter alia, barred by the expiry of the limitation period in s. 11(1) of the PublicAuthorities Protection Act, R.S.O. 1980, c. 406 (now R.S.O. 1990, c. P. 38, s. 7(1)) which provided for a six month limitation period forclaims based on an exercise of statutory authority.

The motions’ court judge dismissed the action as statute-barred. [38] Carthy J.A. found that a statutory limitation period that did not leave the Court with discretion to hear a meritorious case couldnot stand in the way of a constitutional entitlement, saying at paras. 12 to 13: [12] … It is true that in conflict of law jurisprudence, limitation periods have been considered procedural rather than substantive.However, in the context of the Charter, limitation periods are very different from the rules of procedure which effect a dismissal forfailure to meet time requirements.

First and foremost, the rules are subject to the discretion of the court, whereas the statute is not. Inpractice, a meritorious claim will be permitted to proceed, perhaps on terms, despite a breach of the rules. In the few cases where relief isdenied, it is being denied by a court of competent jurisdiction to deal with s. 24(1) relief. The court is simply saying that in thecircumstances presented this is not a case for a hearing and s. 24(1) relief is denied. [13] In M.(K.) v.

M.(H.), (SCC), [1992] 3 S.C.R. 6 at pp. 29-30, 96 D.L.R. (4th) 289, La Forest J. describes thehistoric purposes of limitation periods as providing a time when prospective defendants can be secure that they will not be held toaccount for ancient obligations, foreclosing claims based on stale evidence, permitting destruction of documents, and assuring thatplaintiffs do not sleep on their rights. Those purposes are best served, when Charter remedies are sought, by the court refusing relief onthe basis of laches, in appropriate cases.

The purpose of the Charter, in so far as it controls excesses by governments, is not at all servedby permitting those same governments to decide when they would like to be free of those controls and put their houses in order withoutfurther threat of complaint. [39] As a result, Carthy J.A. found s. 11 of the Public Authorities Protection Act, R.S.O. 1990, c. P. 38, did not apply to reliefclaimed under the Charter. Collins v. Brantford Police Services Board [40] In Collins v. Brantford Police Services Board (2001), (ON CA), 204 D.L.R. (4th) 660 (Ont.

C.A.), theappellant launched a claim for the common law tort of unlawful arrest and for breach of his right to protection against arbitrary detentionunder s. 9 of the Charter. The Board relied in part on the six-month limitation period in s. 7 of the Public Authorities Protection Act,R.S.O. 1990, c. P. 38. The Board conceded that s. 7 is only a bar to the common law action and did not affect the claim based on breachof the Charter. Zadworny v. Manitoba (Attorney General) [41] In Zadworny v.

Manitoba (Attorney General), 2007 MBCA 142, the plaintiff was acquitted on charges of uttering death threatsand breach of a non-molestation order. Following his acquittal, the plaintiff sued the Attorney General, his ex-wife, and the Chief of theWinnipeg Police Service. [42] The plaintiff sought to amend his statement of claim to add an application for a declaration that his Charter rights had beeninfringed and to add two further defendants. The application to add new defendants was denied as the limitation period had expired.

Onappeal to the Court of Queen’s Bench, the decision to allow the addition of a Charter claim was overturned on the basis of an expiredlimitation period under The Limitation of Actions Act. The plaintiff appealed to the Court of Appeal.

The Appeal was deemed abandonedand the appellant sought an order to set aside the deemed abandonment. [43] The Chief Justice of Manitoba, in dismissing the application, considered the decision in Prete to stand for the proposition thatCharter claims may override statutory limitation periods that uniquely benefit the government as it would undermine the purposes of theCharter to permit governments to effectively immunize themselves from its application through the use of preferential limitation periods.

However, an action under the Charter may be dismissed where it falls outside a limitation period of general application because the concern of governments using preferential limitation periods to immunize themselves from Charter claims does not arise. Pearson v. Canada [ 44 ] I found the analysis of Justice de Montigny in Pearson v.

Canada , 2006 FC 931 [ Pearson ] most instructive. [ 45 ] In Pearson , the plaintiff had commenced an action for alleged wilful abuse of process and malicious violations of his Charter rights by the Crown and her officers, servants and agents in his criminal prosecution in the Québec courts. The case evidently had a procedurally complex history. The relevant issue here was whether Mr.

Pearson’s claim had lapsed as result of time limitations in the Civil Code of Québec , S.Q. 1991, c. 64 and whether Pearson’s claim was prescribed. [ 46 ] Counsel for the Crown argued that a claim for damages based on s. 24 of the Charter is to be assimilated and treated as a civil claim and that, as a result, the Québec law relating to prescription should govern since the cause of action arose in the Province of Québec. The Civil Code of Québec provided that an action to enforce a personal right is prescribed by three years. Mr.

Pearson argued that a limitation period in a provincial statute could not bar a Charter claim. [ 47 ] Justice de Montigny found it was clear that damages could be awarded for breaches of Charter rights though they had only been awarded in a few cases. He concluded at para. 50: [50] … [T]here is a clear consensus that an award of damages contingent on a Charter violation must take place within the general legal regime of the province where the cause of action (or the alleged violation of a fundamental right) has taken place.

This is to say that the rules governing evidence, procedure and jurisdiction related to this field of the law must generally find application, since the Charter itself does not provide a parallel architecture to that found in the various provincial and federal statutory schemes. [ 48 ] Justice de Montigny discussed Prete and the concern that governments could immunize themselves from Charter claims through the use of preferential limitation periods and adopted a “flexible approach” balancing the needs to ensure Charter rights would not lack proper enforcement and the lack of procedural provisions in the Charter .

He concluded at para. 54: [54] … [I]t will be for the person seeking damages under section 24(1) of the Charter to prove that a particular time limitation deprives him or her of an appropriate and just remedy; only then will the burden shift on the government to justify the limitation on the right to sue the state for damages as a result of its actions. In other words, prescriptions found in provincial and federal statutes are not, in and of themselves, antithetical to section 24(1) of the Charter.

The purposes of limitation periods are as valid in the context of a Charter claim as they are for any other type of claims; a claimant should not be entitled to sue the Crown indefinitely just because the basis of his complaint is the violation of a constitutional right.

As long as the government is not trying to do indirectly what it could not do directly, I see no reason not to apply a limitation period. [ 49 ] Justice de Montigny found in this case that the limitation did not deprive the plaintiff of an appropriate remedy as the limitation in question was not overly short and was a limitation of general application that did not favour the state over ordinary citizens. Alexis v. Toronto Police Service Board [ 50 ] In Alexis v.

Toronto Police Service Board , 2009 ONCA 847 [ Alexis ], the Ontario Court of Appeal discussed the decision in Prete and rejected the appellant’s submission that it stood for the proposition that the Limitations Act , S.O. 2002, c. 24, Sch. B , did not apply to a claim brought under s. 24(1) of the Charter . Rouleau J.A. writing for the court said: [15] I disagree. The Prete decision does contain language that could be read as suggesting that the question of whether a s. 24(1) claim is time-barred should be governed by the doctrine of laches and not by statutory limitation periods: para. 13.

However, read in context, these comments express the court's preference for the laches approach over the limitation period set out in the Public Authorities Protection Ac t. They do not support the far broader proposition that s. 24(1) claims, brought by an individual and seeking personal remedies, cannot be subject to any statutory limitation period. [ 51 ] The court in Alexis went on to consider Ravndahl v.

Saskatchewan , 2009 SCC 7 and concluded at para. 17, “In my view, therefore, the Supreme Court's reasons clearly signal that limitation periods of general application will apply to claims made under s. 24(1) of the Charter that are ‘brought as an individual for personal remedy.’” Conclusion on Limitation Argument [ 52 ] Counsel for the plaintiff submitted that shortened limitation timelines are “not withstanding judicial scrutiny”.

I do not find that accurately captures the tenor of the cases, which have not come to the unified conclusion argued by the plaintiff. [ 53 ] It is clear from the cases that claims brought under the Charter are generally subject to provincial limitation periods of general application. However in this case, the limitation period in question is not one of general application, it is a limitation that only applies to claims brought against bodies to which the LGA applies, i.e. government.

The holding in Prete would seem to lead to the conclusion that the limitation in the LGA should not bar a claim for a Charter remedy. [ 54 ] However, I find the decision of de Montigny J. more instructive. The statutory limitation should apply absent evidence it would operate unfairly or deprive the plaintiff of a just remedy in this case. [ 55 ] Though a six-month limitation is relatively short, there is no evidence that applying it in this case would be unfair to the plaintiff.

The claim arose on the date of the inspection, January 13, 2016, the FVRD officers made no secret of the inspection and posted notices on the buildings that were found in violation of the Building Bylaw. Counsel for the plaintiff sent a letter to the FVRD advising

them he considered their actions to constitute trespass on January 18, 2016, just five days after the inspection. The plaintiff’s NCC wasnot filed until November 3, 2016, approximately 10½ months after counsel’s letter. [56] Given Counsel’s initially quick response followed by a lengthy unexplained delay in filing a claim. I conclude there is nounfairness to the plaintiff arising from the enforcement of the six-month limitation period in the LGA in this case. [57] I find the plaintiff’s claim is out of time and is statute barred.

In case I have erred in that conclusion, I will go on to consider thequestion of whether the actions of the FVRD constitute a breach of the plaintiff’s rights under s. 8 of the Charter. ALLEGED BREACH OF S. 8 OF THE CHARTER Positions of the Parties [58] The plaintiff contends that the FVRD’s entry onto his rented property constituted an unreasonable search contrary to s. 8 of theCharter. The plaintiff does not seek a declaration that s. 419 of the LGA and s. 7.2 of Building Bylaw are invalid for failing to complywith the Charter, granting it is constitutional.

Moreover, the plaintiff did not serve the Attorney General of Canada or the AttorneyGeneral of British Columbia with notice of a question of validity or applicability as required by the Constitutional Question Act,R.S.B.C. 1996, c. 68. [59] The defendant takes the position the inspection conducted on January 13, 2016 by FVRD staff was conducted lawfully. [60]

Section 298 of the LGA provides the FVRD with authority to regulate buildings for the health, safety, or protection of personsor property.

Section 419 gives the power to inspect properties to ensure compliance with building bylaws, as follows: Inspections to determine whether bylaws are being followed 419 If a board has authority to regulate, prohibit and impose requirements in relation to a matter, the board may, by bylaw, authorizeofficers, employees and agents of the regional district to enter, at all reasonable times, on any property to inspect and determine whetherall regulations, prohibitions and requirements are being met. [61] To ensure compliance with the Building Bylaw, the FVRD regulates construction and has established procedures for theinspecting of properties.

The inspection provision in the Building Bylaw No. 1188, 2013 (attached as Exhibit “A” to the November 16,2017 affidavit of J.

Wells), states: 7.2 A building official 7.2.1 may enter any land, building, structure, or premises at any reasonable time for the purpose of ascertaining that the terms of thisbylaw are being observed; 7.2.2 where any residence is occupied, shall obtain the consent of the occupant or provide written notice to the occupant 24 hours inadvance of entry to the residence; and 7.2.3 shall carry proper credentials confirming his or her status as a building official. [62] The defendant pointed out neither the LGA nor the Building Bylaw require that FVRD staff obtain a warrant or permission toenter a property in question to determine whether the terms of the Building Bylaw were being observed. [63] Pointing to the fact that the Building Bylaw specifically states consent or advance written notice are required to enter anyoccupied residence the FVRD argued that the clear and plain

interpretation of the Building Bylaw is that there is no requirement forconsent or advance written notice to the occupant of the Property if FVRD building officials do not enter occupied residences. In the caseat bar, it is not in issue that the FVRD building officials did not enter any occupied residence on the Property, at any material time. [64] As noted, the FVRD stressed that, as a courtesy, it had attempted to arrange a mutually agreeable time to inspect the Propertybut received no cooperation.

Section 8 Jurisprudence [65] The Court of Appeal addressed the subject of regulatory inspections, requirements for administrative warrants, and s. 8 of theCharter, as it relates to inspections of private residences, in Arkinstall v. Surrey (City), 2010 BCCA 250 [Arkinstall].

The main issue onthe appeal (noted at para. 1) was whether the provisions of the Safety Standards Act, S.B.C. 2003, c. 39, which “authorize[d] thewarrantless entry and inspection of residential premises for the regulatory purpose of inspecting electrical systems for safety risks thatmay be related to marihuana grow-operations infringe the appellants’ rights under s. 8 of the Charter”, to be free from unreasonablesearch and seizure. [66] In Arkinstall, unlike the present case, the constitutionality of the bylaw was challenged and not merely the manner in which thesearch was conducted.

The Court discussed (at paras. 51 to 52) the framework under which courts apply s. 8 of the Charter: [51] An inquiry under s. 8 proceeds in two steps: R. v. Edwards, (SCC), [1996] 1 S.C.R. 128. First, it is necessary todetermine whether a person possesses a reasonable expectation of privacy on the basis of all the circumstances. This is a threshold stepnecessary to determine whether s. 8 is engaged. There is no question that individuals possess a considerable expectation of privacy inrelation to their homes.

Section 8 is clearly engaged. Second, the court must determine whether the search was reasonable.

[52] In Hunter, the Supreme Court of Canada stated that a warrantless search is prima facie unreasonable. To rebut this presumptionof unreasonableness, it is necessary to meet the three requirements established in R. v. Collins, (SCC), [1987] 1 S.C.R.265: that the search was authorized by law; that the law authorizing the search was reasonable; and that the manner in which the searchwas carried out was reasonable.

The main area of dispute on this appeal is under the second Collins criterion. [67] It is well established that there is a high expectation of privacy in the home, as stated in Arkinstall at para. 69: [69] There is a "hierarchy of places", atop of which is the home.

Importantly for our purposes, the hierarchy decreases in the level ofexpected privacy as one moves from the home to the perimeter space around the home, to commercial space, to private cars, to schools,and then, at the bottom, to prisons. … [68] Given that the search in question was conducted without prior judicial authorization, I will assess the claims on the frameworkestablished in R. v. Collins, (SCC), [1987] 1 S.C.R. 265. Was the Search Authorized by Law? [69]

Section 419 of the LGA authorizes the FVRD to authorize its agents to enter any property at reasonable times to inspect anddetermine whether all regulations, etc., are being complied with. [70]

Section 7.2 of the Building Bylaw authorizes FVRD building officials to enter “any land, building, structure or premises at anyreasonable time” to determine if bylaws are being observed. The

section requires the consent of the occupant or 24 hours’ written noticewhere the place in question is an occupied residence and requires that officials carry proper credentials. [71] The LGA and the Building Bylaw clearly authorize the type of search which was conducted in this case. While notice or consentis required in the case of inspection of an occupied residence, the inspection in issue dealt with outbuildings, not occupied residences, sono notice was required.

There is no evidence to suggest the FVRD exceeded the scope of the search power conferred by the Bylaw.While in an ideal scenario the FVRD may choose to obtain consent to inspect buildings other than occupied residences, there is norequirement that it do so. Is the Law Reasonable? [72] It is important to bear in mind that the search power in issue is granted for the purpose of determining bylaw compliance.Searches in the regulatory context must be reasonable but are distinct from the requirements for searches in the criminal context.

Asstated by the Ontario Court of Appeal in Re Belgoma Transportation Ltd. and Ontario (Director of Employment Standards) (1985), (ON CA), 20 D.L.R. (4th) 156 (Ont.

C.A.): [7] The standards to be applied to the reasonableness of a search or seizure and the necessity for a warrant with respect to criminalinvestigations cannot be the same as those to be applied to search or seizure within an administrative and regulatory context. [73] As stated earlier, the plaintiff does not challenge the constitutionality of the LGA or the Building Bylaw which authorized thewarrantless search of the Property for the limited purpose of ensuring bylaw compliance. Legislation is presumed to be Chartercompliant: R. v. Ahmad, 2011 SCC 6 at para. 28.

This presumption of constitutionality can be rebutted but a plaintiff who wishes to do sois required by s. 8 of the Constitutional Question Act, R.S.B.C. 1996, c. 68 to provide notice: 8(2) If in a cause, matter or other proceeding (

a) the constitutional validity or constitutional applicability of any law is challenged, or (

b) an application is made for a constitutional remedy, the law must not be held to be invalid or inapplicable and the remedy must not be granted until after notice of the challenge or applicationhas been served on the Attorney General of Canada and the Attorney General of British Columbia in accordance with this section. [74] As there is no indication notice was provided and the plaintiff has stated he does not challenge the constitutionality of the LGAor the Building Bylaw, I will not consider that issue but proceed on the unrebutted presumption they are Charter compliant.

Was the Search Conducted Reasonably? [75] The plaintiff submits the inspection by FVRD officials was not conducted reasonably.

The plaintiff’s submission was focussedon the fact that the inspection was conducted while the RCMP were present, conducting a separate search pursuant to a warrant and theplaintiff had been removed from the Property. [76] The plaintiff points to the requirement in the Building Bylaw that inspectors carry identification when conducting inspections.He argues that the purpose of this requirement must be so the occupant of a property to be inspected can verify the inspectors’ identityand authority and this leads to the conclusion that the occupant must be present or the search will not have been conducted at areasonable time. [77] By his

interpretation, the plaintiff is effectively re-writing the legislation: The legislation and bylaw clearly authorize officers,employees and agents to enter, at any reasonable time on any property to inspect and determine whether all regulations, prohibitions andrequirements are being met. The presence of the owner or occupant is not a prerequisite for an inspection not involving entry to aresidence. The plaintiff argues that if he had been present, he could have explained and shown things. But as mentioned above, theinspection focused on empirical information and measurements.

[ 78 ] The FVRD’s notice about a year earlier to the owner and to the occupants of 41351 Morton Road, that it had become aware of construction without permits is, in my opinion, relevant to the issues in this case.

The letter recited s. 7.2.1. of the FVRD Building Bylaw No. 1188, 2013, a building official “may enter any land, building, structure, or premises at any reasonable time for the purpose of ascertaining that the terms of this bylaw are being observed.” [ 79 ] The following paragraph in the FVRD’s April 2, 2015 letter is significant: The Regional District wishes to work with you to enable you to bring your property [into] compliance with all current bylaws. In order to accomplish this, we request that you provide access for staff to inspect your property on a mutually convenient date.

Should you fail to respond before May 15, 2015 , you may be subject to ticketing and your file may be referred to the Regional Board for their consideration and recommendation regarding further bylaw enforcement. [ 80 ] Neither the owner nor the plaintiff, nor any other party responded to the invitation to arrange a mutually convenient date. The plaintiff complained that the FVRD did not take any further steps after that but said nothing about the legal responsibility of the owner and the plaintiff’s own responsibility as an actor in this state of affairs.

The FVRD clearly was not seeking permission to enter on the lands as the plaintiff seems to intimate; it had the right to do so without warrant because it was not going to enter the residence. [ 81 ] Further in this vein, counsel for the plaintiff complained he did not see any other evidence that showed any attempt by the FVRD to try and facilitate a site visit or to coordinate entry of any sort – suggesting no reasonable good faith efforts were made by the FVRD.

But an objective person, knowing of the infringement of the bylaws and the FVRD’s significant concerns, set out in the report; and seeing the FVRD’s expression of a willingness to work with the owner and to bring his property into compliance with all current bylaws, would not see the FVRD as obligated to pursue the owner and occupiers for a mutually convenient date.

Rather, they would most likely see the reverse, that this was something the owner and plaintiff ought to have pursued in their own best interests; particularly given the circumscribed nature of the inspection, the significant reasons for the FVRD’s concerns, and the potential consequences if the owner did not respond. The FVRD’s letter clearly calls for the owner’s and the occupants’ timely response. What more could be reasonably asked of the FVRD in this situation? [ 82 ] The plaintiff granted the RCMP operation was a separate event.

At the same time however, the plaintiff appeared to maintain the RCMP and FVRD were working as a team. The facts do not support such a characterization. [ 83 ] The RCMP conducted its investigation for its own purposes, on its own terms and authorization. The FVRD had no

part in the RCMP’s criminal investigation or on how it was conducted. The FVRD officers went on the Property after being advised it was safe to do so and that no one was on the Property. If police escorted the plaintiff and his common-law wife off the Property at gunpoint that would be disturbing, of course. But the reasonableness of the manner of any detention or arrest is a matter to be addressed in that case. The FVRD officers were not present and had no

part in that. They were only told the occupants had been removed and that it was safe to enter the lands. The legality and Charter compliance (or not) of the police actions is a separate matter not in issue or in evidence in this case. If the plaintiff’s complaints about the manner of his arrest or detention are tenable, it is a matter for him to pursue separately from any complaints about the FVRD’s conduct. [ 84 ] I conclude the manner in which the search was conducted by the FVRD was entirely reasonable. They attempted to gain the cooperation of the homeowner and tenant and received no reply.

It was reasonable for the FVRD agents to come and inspect the Property when they were informed by the RCMP that it was safe to do so. They had no involvement with the RCMP investigation or how it was conducted. The agents limited their search to outbuildings, took measurements, posted notices and left the Property. CONCLUSION [ 85 ] Considering the uncontested facts, the case authorities presented, and my conclusions, the able submissions of counsel, mindful of the principle that the bar on a motion for

summary dismissal is high, I have concluded the defendant FVRD met the burden of showing there is no genuine issue for trial with respect to the plaintiff’s claim. Put another way, the plaintiff has no real prospect for success at trial. The plaintiff’s claim is dismissed with costs at Scale “B” to the defendant. “N. Brown J.”