Abbas Khani-Hanjani v. City of Surrey Date:, 2012 BCPC 346

Citation: Abbas Khani-Hanjani v. City of Surrey Date: 20120927 2012 BCPC 0346 File No: 68313 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ABBAS KHANI-HANJANI CLAIMANT AND: CITY OF SURREY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Claimant: Self-Represented Counsel for the Defendant: B. Lee Place of Hearing: Surrey , B.C. Date of Hearing: July 23, 2012 Date of Judgment: September 27, 2012

[ 1 ] The Defendant City of Surrey applies to have the claim filed by Abbas Khani-Hanjani dismissed. The Defendant says the Claimant failed to give notice of his claim within the time period required under s.286(1) of the Local Government Act, RSBC 1996 c.323 . Further the Defendant says the Claimant failed to commence proceedings within the limitation period set out in the Limitation Act (RSBC) 1996 c.266, s.3(2) and s.285 of the Local Government Act . [ 2 ] For the reasons that follow, the Defendant’s application is granted and the claim is dismissed. [ 3 ] Mr.

Khani-Hanjani (the Claimant) filed his claim on August 18, 2010. In that claim he asserts that on May 3, 2007, representatives of the City of Surrey unlawfully broke and entered the premises he owned at 7150 – 182 nd Street, Surrey, British Columbia, causing damage to the property, causing him to incur the costs of electrical upgrading and licencing and leading to the loss of rental revenue for 11.5 months. [ 4 ] Further, the Claimant says that on May 19, 2010, he was unlawfully served with the Notice of a Tax Sale because he refused to pay $2,371 in fees assessed by the Defendant.

He seeks reversal of the penalties and interests set out in the relevant invoice. [ 5 ] The Claimant asserts that he is entitled to damages and redress exceeding $25,000 but he abandons his claim beyond that amount to meet this Court’s monetary jurisdiction. [ 6 ] In support of this application, the City has filed 9 affidavits sworn by 8 current or former employees of the City with knowledge of the events. The Claimant gave oral evidence and was cross-examined.

Various documents were filed. [ 7 ] I will now outline the circumstances relevant to the application. [ 8 ] The Claimant is and was at all material times the registered owner of 7150 – 182 nd Street, Surrey, British Columbia (the property). The property includes a house and several outbuildings. The Claimant did not reside there. He rented the premises to a tenant. The State of Title Certificate states that the Claimant’s application to register his interest was accepted on May 12, 2006. The document states the Claimant’s address at that time to be 9876 Casewell Street, Burnaby, British Columbia, V3J 1G9.

The property report record on file with the City and dated April 21, 2007, also set out the same Burnaby address for the Claimant. [ 9 ] In 2006, the Defendant City, acting under authority of s.8(3) (a), (

h) and (

i) of the Community Charter SBC 2003 c.26, enacted the Controlled Substance Property Bylaw , 2006 No. 15820, amended from time to time.

Section 7.3 of that bylaw states that an inspector as defined in the bylaw may enter property for the following purposes: (

a) Inspect and determine whether all regulations, prohibitions or requirements under this bylaw or under enactments are being met in relation to any manner for which the council, a municipal officer or employee or a person authorized by the council has exercised authority under this or another Act to regulate, prohibit or impose requirements; (

b) To carry out a special safety inspection under s.7.2; (

c) Take action authorized under s.9.1 of this bylaw; or (

d) Inspect, disconnect or remove service under s.10.1, 10.2 and 10.3 of the bylaw. [ 10 ] The City is permitted to levy fees and service costs for such attendances. These are provided for in s.8 and

Schedule A of the Controlled Substance Property Bylaw and are authorized under the Community Charter and the Fee Setting Bylaw No. 14577 as amended. [ 11 ] The Controlled Substance Property Bylaw is intended to address health and safety concerns including fire hazards created by unsafe electrical wiring or other risks in buildings, including residences, used to unlawfully produced substances controlled under the Controlled Drugs and Substances Act (see Controlled Substance Property Bylaw

preamble and

definitions). To carry out this work, the City created an Electrical Fire and Safety Inspection Team (the Team). [ 12 ] During 2007, Andrew Blackburn was a fire captain with the Defendant and a member of the Team. He stated that based on an assessment of British Columbia Hydro and Power Authority Residential Consumption Records, the Team concluded that a marijuana grow-operation was being operated on the property. [ 13 ] On May 1, 2007, the Team posted a notice on the property seeking to arrange an inspection within 48 hours.

The notice stated that the Team had authority to enter premises at a reasonable time to conduct an inspection of electrical systems and equipment under the Safety Standards Act . The notice further stated the Team had authority to disconnect electrical power if the notice was not complied with. The notice was also couriered to the complainant at the Burnaby address.

The Team believed that the Claimant resided at that address because it was the address on the property record document held by the City. [ 14 ] On May 3, 2007, the Team attended the address and it appears was given access by the tenant to inspect the residence and one outbuilding. Access to a second outbuilding was not granted. [ 15 ] The Team couriered a letter to the Claimant at the Burnaby address setting out the results of that inspection.

The Team discovered “significant fire and electrical safety concerns relating to a marijuana grow operation in the first outbuilding, such that immediate action was required to eliminate the hazard to life and property” (see Affidavit of Andrew Blackburn). [ 16 ] BC Hydro was ordered to discontinue electrical service to the property pursuant to the Safety Standards Act . The letter alerted the Claimant to the need to retain a registered electrical contractor to address the issues and the need to obtain an electrical permit to carry out the work (see Affidavit of Andrew Blackburn).

[ 17 ] Also on May 3, 2007, the City sent an invoice to the Claimant at the Burnaby address. The invoice totalled $2,371. The invoice was for costs incurred by the City associated with the investigation carried out by the Team. The invoice referenced the “ Surrey Community Improvement and Controlled Substance Manufacture Bylaw 2006 No.15820 ”. Although the title is incorrect, the Controlled Substance Property Bylaw reference number is accurate. I find for purposes of this application nothing turns on the mis-statement of the bylaw title.

I find the fees set out in the invoice are consistent with the fees permitted for an attendance for the purpose of the Controlled Substance Property Bylaw and in accord with those established under that bylaw and the Fee Setting Bylaw (see Affidavit of Sandra Melanie Atkinson). [ 18 ] John Hofmann was a Senior Bylaw Enforcement Officer with the Defendant at the time. He oversaw cost recovery for the Team. He states that the invoice couriered to the Claimant at the Burnaby address was returned undelivered but with information that the Claimant’s address was 7104 – 95 th Avenue N.W., Edmonton, Alberta. Mr.

Blackburn believes the invoice was forwarded to the new address on the same date that it had been returned undelivered to the City, that being May 10, 2007 (see Affidavit No. 1 of John Hofmann). [ 19 ] On May 16, 2007, the Team conducted an inspection of the second outbuilding. The Team was met at that location by Joe Pal who was a realtor for the Claimant, and the locksmith who provided access to the second outbuilding allowing the inspection to be carried out.

On the same date, the Team sent a letter to the Claimant at his Edmonton address stating that significant fire and safety concerns relating to a marijuana grow-operation were discovered in the second outbuilding and immediate action was required. Pursuant to the Safety Standards Act , electrical power was disconnected (see Affidavit of Andrew Blackburn). [ 20 ] On June 28, 2007, Sterling Electric, an electrical contractor, applied on behalf of the Claimant for and was granted an electrical permit to rectify deficiencies identified by the Team at the property.

It appears the work was carried out on June 29, 2007 (see Affidavit of Warren Edward Laforte). [ 21 ] It appears, based on documents provided by the Claimant during the discovery process in these proceedings, that the Claimant was billed $5,247 by Sterling Electric and that he was provided an estimate by Belfor Canada Ltd. for further repair work to the residence totaling $13,785.14.

Those documents are dated June 29, 2007, and July 14, 2007 respectively (see Affidavit of Charleen Symons). [ 22 ] By December 31, 2007, the Claimant had failed to pay the invoice rendered by the City, covering costs related to the May 3, 2007, inspection. The amount of that invoice together with interest as allowed under the Community Charter was added to City taxes relating to the property as taxes in arrears pursuant to ss. 258 and 265 of the Community Charter and the Controlled Substance Property Bylaw .

In May 2008, a Property Tax Notice including the outstanding amount of the invoice and the interest were sent to the Claimant at the Burnaby address (see Affidavit of Sally Bhullar-Gill). [ 23 ] I note here that both the 2007 and 2008 Property Tax Notices were sent to the Burnaby address in May of each of those years. The property taxes were paid on time despite the notices having been sent to the Burnaby and not the Edmonton address.

However, the Claimant has not paid the amount of the outstanding invoice for attendance on May 3, 2007, by the Team and that is the matter for which he sought reversal of the invoice. [ 24 ] On or about July 2, 2008, the Claimant called Senior Bylaw Officer John Hofmann who was responsible for administering and managing cost recovery for the Team. Mr. Hofmann believes this was his first communication with the Claimant. They discussed the costs arising from the inspection of May 3, 2007. The Claimant said he had not received the original invoice. [ 25 ] It appears from email records included with Mr.

Hofmann’s Affidavit No.1 that the Claimant asserted he only learned of these charges with his 2008 Property Notice. During the conversation on this date, the Claimant told Mr. Hofmann that he had consulted a lawyer involved in another case who told him that the search carried out by the Team was illegal and the City had no grounds to charge him the costs set out in the invoice. [ 26 ] On July 4, 2008, Mr. Hofmann sent a letter to the Claimant at the Edmonton address confirming the charges could not be waived.

He provided a revised version of the invoice with the Claimant’s Edmonton address, dated July 4, 2008, properly citing the Controlled Substance Property Bylaw (Affidavit No. 1 of John Hofmann.) [ 27 ] Jane Sullivan is the City Clerk in the Legislative Services Division for the Defendant. She is designated by Surrey City Council, pursuant to the Surrey Officer and Indemnification Bylaw 2006 No. 19512, to accept notices in writing delivered to the City under s.286 of the Local Government Act respecting claims for damages against the City. [ 28 ] On October 29, 2009, Ms.

Sullivan received on behalf of the City and logged a letter dated October 27, 2009, from the Claimant and directed to the Mayor in Council, City of Surrey. The letter is lengthy. It sets out issues the Claimant said he raised respecting the property and the tenant with the RCMP in 2007 and his efforts to monitor the property prior to the inspection by the Team on May 3, 2007. He stated that he was informed by the RCMP of the inspection on the day it had occurred. He asserted that the residence was carelessly raided and further that the City broke and entered and damaged the property.

He stated that he has spoken with lawyers involved in a similar case who told him he had a good case against the City for unlawful break and enter and negligence causing damage. He stated his total damages exceeded $46,000. He stated that, in the absence of settlement, he would have no choice but to pursue legal proceedings (see Affidavit of Jane Sullivan). [ 29 ] In his evidence, the Claimant confirmed that he knew of the inspection on May 3, 2007, the day on which it occurred. He took steps readily to retain an electrical contractor to address the deficiency identified and he undertook repairs.

He stated he had telephone communication with the City in June 2007 and has provided telephone records to support that assertion. He further asserted that in his conversation with John Hofmann on July 2, 2008, he told Mr. Hofmann that he intended to sue the City. He acknowledged receipt of the letter of July 4, 2008, from the City. He said that at about this time he spoke with lawyers conducting a similar ongoing case. He stated in evidence that he decided to await the outcome of that case before taking any further steps. That case is Arkinstall v. The City of Surrey .

I note the trial decision in the British Columbia Supreme Court is cited as 2008 BCSC 1419 and is dated October 24, 2008. The

case ultimately went to the British Columbia Court of Appeal and is cited as 2010 BCCA 250 . The judgment was released on May 20, 2010. [ 30 ] From this I conclude the Claimant waited over a year following a discussion with lawyers in July 2008 and the release of the trial decision on October 24, 2008, before sending his letter of October 29, 2009, to the City. That letter would in substance constitute the notice contemplated under s.286 (1) of the Local Government Act were it delivered within the time periods set in that section. [ 31 ] By letter dated December 2, 2009, to the Claimant, Gordon Howling, Senior Claims Manager in the Risk Assessment

Section at the City, alerted the Claimant to the limitation and notice provisions set out in the Local Government Act and the Limitation Act and advised him that the City viewed his claim as statute barred (see Affidavit of Gordon Howling). [ 32 ] Despite this information, the Claimant did not file his claim with the Court for a further period exceeding 9 months. [ 33 ] The Claimant said that in his conversations with the City, no one informed him that time limits and notice requirements might apply to legal proceedings against the City until those time periods had passed.

He expressed the view that the City had an obligation to alert him to time limitations. [ 34 ] I am not aware of any obligation resting on the City to inform an individual in the Claimant’s circumstances of the time limitations and notice requirements. The Claimant has not pointed me to such an obligation. I note that he spoke to lawyers involved in the Arkinstall case and received some information about the possible merits of the City’s position.

There is no evidence that he sought or retained his own legal counsel to provide advice or carry out considered research himself into the claims and the steps required to prosecute the claim against the City. Those inquiries would have provided the necessary information respecting notice and time limits. [ 35 ] The Claimant expressed his frustration with the lack of concern shown by the RCMP in responding to concerns about the property and his tenant which he says he brought to their attention in the months leading up the inspection on May 3, 2007.

He argues that if this had been acted upon, he would not have faced the situation which led to the inspection occurring. This might have relevance were the claim to proceed to trial on the merits. It does not however bear on the factors to be considered on this application. [ 36 ] The Claimant points out that the initial notice of the Team’s intention to inspect the property was couriered to the wrong address on May 1, 2007, as was the report of the inspection outcome and the invoice on May 3, 2007.

They were all sent to the Burnaby address because that was the address for the Claimant as owner of the property on the City’s property record document. The Claimant pointed out that the City had sent the 2005 and 2006 Property Tax Notices to him in Edmonton although I note the address on those notices is not the same Edmonton address as was later confirmed to be his and to which the later documents were addressed once that address was clarified (see documents filed with the Claimant’s submission).

It may be that prior to 2007, the property was jointly owned although this is my supposition based on a review of the names appearing on the Tax Notices for various years and the State of Title Certificate earlier referred to.

Although the documents were returned to the City undelivered on May 10, 2007, and were then sent to the Claimant at the proper Edmonton address, he says he did not receive them and so he was unaware of the invoice and charges until they appeared in his 2008 Property Tax bill. [ 37 ] In respect to his claim for damages as a result of the raid, little turns on confusion over the Claimant’s proper address. The facts demonstrate and the Claimant acknowledges that he was informed of the raid on the day it occurred and he took steps readily to hire a contractor to repair deficiencies and to have power restored.

It is clear he took steps at least to obtain an estimate for other damage done to the property (see Affidavit of Charleen Symons and Warren Edward Laforte). [ 38 ] I will deal first with the Claimant’s plea for reversal of penalties and interest set out in the invoice of March 3, 2007. [ 39 ] The jurisdiction of the Provincial Court to grant relief and the remedies available are set out in the Provincial Court Act RSBC 1996 c.430 at s.3(1) which is as follows: 3(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property, (

c) specific performance of an agreement relating to personal property or services, or (

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs. [ 40 ] The remedy sought by way of reversal of fees is not a claim for debt or damages. It appears to be more in the nature of a declaration or injunction and those forms of relief are not available in this Court. [ 41 ] I have considered whether there is a discretion to recast this head of the claim in a way which might bring it within the Court’s jurisdiction.

However, it is unclear to me how that might be done. I cannot simply clothe the court with the jurisdiction to act in this fashion unilaterally bearing in mind that the Defendant has raised jurisdiction in his reply and referred to this issue in oral argument. [ 42 ] The claim for the reversal of penalties, costs, fees and interest as set out in the invoice of March 3, 2007, is dismissed for want of jurisdiction in this Court. [ 43 ] I will next address the requirement for notice under 286(1) of the Local Government Act . That section, so far as it is relevant here, states:

286(1) A municipality is in no case liable for damages unless notice in writing, setting out the time, place and manner in which thedamage has been sustained, is delivered to the municipality within 2 months from the date on which the damage was sustained.

(3) Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, incase of appeal, the Court of Appeal, believes (

a) There was reasonable excuse, and (

b) The Defendant has not been prejudiced in its defence by the failure or insufficiency. [44] It is clear that the claim for damages arising during the inspection is caught by this notice requirement. [45] The only document which might arguably amount to notice in writing is the letter to the City dated October 27, 2009, andreceived on October 29, 2009. I have reviewed that letter and I am satisfied that it provides sufficient information to meet therequirements of s.286(1) for written notice.

By this I mean that it sets out in adequate detail the time, place and manner in which thedamages were sustained. [46] It was not however delivered to the City within two months of the date on which the damages were sustained. [47] I conclude that in respect to these damages the notice period commenced May 16, 2007, the date of the final City attendance forinspection purposes, and expired no later than July 16, 2007. [48] I must now consider whether the relief from failure to provide timely notice set out in s.286(3) should apply here. [49] Both reasonable excuse and absence of prejudice to the Defendant City must be shown. [50] The City has not argued that it was prejudiced by late notice and I find there is no prejudice to the City in its defence to thisclaim on the evidence before me. [51] In Thauli v.

Delta (Corp.) 2009 BCCA 455 at para. 50, the Court of Appeal summarized the approach to be taken in applyings.286(3) to these facts: The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse forthe failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, takinginto account all matters put forward as constituting either singly or together a reasonable excuse. The determination of whether there isreasonable excuse is contextual.

The question is whether it is reasonable that the plaintiff be excused, having regard to all thecircumstances. [52] Here the Claimant has said that he was unaware of the notice requirement and only became aware during conversation with theCity following his letter of October 27, 2009. Although it appears he spoke to lawyers apparently familiar with issues relating to themerits of his claim, there is no evidence or suggestion that they were retained by the Claimant or that they gave him any informationalerting him to the notice issue. When I consider the whole of the circumstances and the purpose this

section is intended to address as summarized in cases such as Thauli v. Delta, supra, Teller v. Sunshine Coast (1990) (BC CA), 67 DLR (4th) 62(BCCA) and Chavez v. Burnaby 2004 BCCA 1106, I conclude the Claimant has shown a reasonable excuse for failure to provide timelynotice to the City. [53] The notice requirement in s. 286(1) of the Local Government Act is not a bar to the maintenance of this claim. [54] The next issue to address is the implication of time limits to commence proceedings under the Local Government Act and theLimitation Act. [55] I will address the Limitation Act first.

Sections 3(2)(a), 6(3) to (6) and s.9 of the Limitation Act are as follows: 3(2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the followingactions: (

a) subject to subsection (4)(k), for damages in respect of injury to person or property, including economic loss arising from the injury,whether based on contract, tort or statutory duty; ... 6(3) The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as providedin subsection (4): (

a) for personal injury;

(

b) for damage to property; (

c) for professional negligence; (

d) based on fraud or deceit; (

e) in which material facts relating to the cause of action have been willfully concealed; (

f) for relief from the consequences of a mistake; (

g) brought under the Family Compensation Act; (

h) for breach of trust not within subsection (1).

(4) Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff’s or claimant’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that (

a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (

b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.

(5) For the purpose of subsection (4), (a) “appropriate advice”, in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require, (b) “facts” include (

i) the existence of a duty owed to the plaintiff or claimant by the defendant or respondent, and (ii) that a breach of a duty caused injury, damage or loss to the plaintiff or claimant, (

c) if a person claims through a predecessor in right, title or interest, the knowledge or means of knowledge of the predecessor before the right, title or interest passed is that of the first mentioned person, and (

d) if a question arises about the knowledge or means of knowledge of a deceased person, the court may have regard to the conduct and statements of the deceased person.

(6) The burden of proving that the running of time has been postponed under subsections (3) and (4) is on the person claiming the benefit of the postponement. [ 56 ] The claim in this case relating to damages arising from the Team’s attendance to the property must have been commenced before the expiration of two years after the date on which the right to bring the action arose. The evidence establishes the Team was last on the property on May 16, 2007. On the face of it, the right to bring this action arose on May 16, 2007. Unless the Claimant’s action is saved by s.6(4) of the Limitation Act , the last day on which this claim could be brought was May 16, 2009. [ 57 ] In Vance v. Peglar

(1996) BCLR (3d) 251, the Court of Appeal broke s.6(4) into 4 components as follows: 1. The identity of the Defendant is known to the plaintiff. 2. The plaintiff has certain facts (including the facts set out in s.6(5)(b)) within her means of knowledge. 3. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that an action would have a reasonable prospect of success. 4.

A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that the plaintiff ought, in her own interests and taking her circumstances into account, to be able to bring an action. [ 58 ] All four components must be satisfied before the limitation period begins to run. If the Claimant demonstrates that any one of the four components is not satisfied “before two years prior to commencement of the action, the action will not be statute barred” ( Ounjian v. St.

Paul’s Hospital 2002, BCSC 104 , Tysoe, J.). [ 59 ] The Claimant commenced his action on August 18, 2010. The burden is on him to demonstrate that one of these components was not satisfied prior to August 18, 2008. [ 60 ] Addressing the first component, the Claimant acknowledged he knew of the inspection on the first day the Team attended and he arranged for his realtor and a locksmith to be present on the second visit on May 16, 2007. He arranged for an electrical contractor to obtain a permit and carry out repairs. The permit itself refers to the Team and was issued June 27, 2007. I conclude the first component

was met certainly no later than during the month of June 2007. [61] The second component requires that I consider when the Claimant had within his means of knowledge the existence of a dutyowed to him by the City and that a breach of that duty caused damage. The Claimant asserts that he was in touch with the City in June2007. He has provided telephone records confirming that. He said in evidence that he spoke with Mr. Hofmann on July 2, 2008, andreferred to a similar case before the Court and that he intended to sue the City and the tenant.

It appears he had at this point spoken tothe lawyers representing the plaintiff in the Arkinstall case. There is no evidence before the Court that he consulted other legal counsel. [62] In Karsanjii Estate v. Rogue (1990) (BC CA), 43 BCLR (2d) 234 (BCCA), Mr.

Justice Taylor stated thefollowing in part: …where a reasonable person in his position would have appreciated that this may reasonably have resulted from a breach of duty on thepart of a person whose identify is known to the prospective plaintiff, and where the fact that it was so caused could reasonably bediscovered by obtaining advice available to the prospective plaintiff (even though the assistance of a lawyer or other intermediary mightbe required in order to obtain such advice), then the relevant “facts” should be regarded as falling within his “means of knowledge” forthe purpose of s.6(3)(i) [now s.6(4)]. [63] I conclude that at least by the point the Claimant spoke to Mr.

Hofmann on July 2, 2008, he met the second component. [64] In addressing the third component, the Court in Ounjian, supra, at paras. 27 and 28, first referenced the concept of notionaladvice introduced by the Law Reform Commission and which is given the conceptual status of facts to be added to those facts within theClaimant’s means of knowledge. [65] Here the Claimant, having incurred costs of repair to his property, having learned at an early stage of the inspection by theTeam, and associated those actions with the damage he suffered, would have known, had he taken appropriate advice, that there was areasonable prospect that the City breached the duty to him causing damage and that he had a reasonable basis to make a claim. [66] This third component similarly was satisfied no later than the July 2, 2008, conversation with Mr.

Hofmann. [67] The fourth component is similarly satisfied at least by that same date. [68] I will note here that I have analyzed the circumstances on the basis that there is no evidence the Claimant retained legal counseland obtained legal advice, that the closest he came to doing so was to speak with counsel involved in the Arkinstall case. I do so despitethe reference in the email from John Hofmann to other City officials, marked Exhibit C in his first affidavit, in which Mr.

Hofmannoutlined his conversation with the Claimant on July 2, 2008, and stated “his lawyer states then search was illegal and no grounds tobill”. Mr. Hofmann was not cross-examined nor was the Claimant directed to this issue during his evidence. In my view, the statementsuggesting that he had retained counsel in these circumstances is unreliable. Particularly I am concerned to rely on that statement in Mr.Hofmann’s email considering that the Claimant has repeatedly referenced speaking to counsel in the Arkinstall case without making anyreference to having retained counsel himself.

Because the Claimant is not represented by counsel on this hearing, I do not place weighton the possibility that he had in fact retained his own counsel. In my view, his position in arguing his case would be weakened if he hadretained counsel.

It is at its strongest in the absence of an implication that he retained his own counsel. [69] In any event, I conclude the claim for damages to the property arising from the inspection by the Team is barred pursuant tos.3(2) of the Limitation Act and further the Claimant has failed to establish the basis on which to postpone the running of time under s.6of that Act. [70] In these circumstances, it is unnecessary to address the 6-month limitation period set out in s.285 of the Local Government Act. [71] The Defendant’s application is granted and the claim is dismissed. ______________________________ The Honourable Judge M.

B. Hicks Provincial Court of British Columbia