Bi v. City of Surrey, 2018 BCPC 324

Citation: Bi v. City of Surrey 2018 BCPC 324 Date: 20181113 File No: C-80548 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: SHAMIMA BI CLAIMANT AND: CITY OF SURREY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. LA PRAIRIE Counsel for the Claimant: Self-Represented Counsel for the Defendant: B. Lee and S. Shergill (Articled Student) Place of Hearing: Surrey , B.C. Dates of Hearing: May 11, 2018; June 25, 2018; September 18, 2018

Date of Judgment: November 13, 2018 [ 1 ] Shamima Bi has filed a notice of claim against the City of Surrey (“the City”) for damage caused to her property at 11409 142 nd Street, Surrey, BC, when the City entered onto the property on September 30, 2014 with a backhoe to clear what the City considered to be debris from the property. [ 2 ] Ms. Bi alleges that the backhoe caused damage to the landscaping and plants on the property. She is seeking $15,000 in damages for the negligent operation of the backhoe on the property by the City. [ 3 ] Ms.

Bi also alleges that the City workers removed building materials from the property of a value of $20,000 for which she is seeking restitution in damages. [ 4 ] Lastly, Ms. Bi alleges that the damage caused to the property by the City prevented her from renting out the property to tenants. She is seeking loss of rental income of $3,000. [ 5 ] The Notice of Claim was filed on August 29, 2016. At that time, the monetary limit for a claim in the Provincial Court was $25,000. Ms. Bi abandons any portion of claim exceeding that limit. [ 6 ] In total, Ms.

Bi is seeking damages from the City of $25,000 plus filing fees and service fees. [ 7 ] The City filed a reply denying the allegations set out in the notice of claim. [ 8 ] On October 19, 2017, the Honourable Judge Sudeyko ruled on an application brought by the City to dismiss the claim of Ms. Bi in this case, as well as four other claims brought by her and her husband, Mohammed Izaz. The claims were all in relation to the City enforcing by-laws involving properties owned by Ms. Bi and Mr. Izaz. [ 9 ] Judge Sudeyko found that the court lacked jurisdiction to hear challenges to City’s by-law enforcement.

As such, the claims by Ms. Bi and Mr. Izaz challenging the City’s by-law enforcement were dismissed by Judge Sudeyko. [ 10 ] Judge Sudeyko ruled that the claim for damages in this case, resulting from the allegation of negligence on the part of the City in removing debris from Ms. Bi’s property at 11409 142 nd St., was within the jurisdiction of the court and could proceed to trial. [ 11 ] In assessing the claim for loss of rental income, Judge Sudeyko determined that it constituted a claim for injunctive or declaratory relief in relation to the City’s by-law enforcement practices.

At paragraph 28 of his ruling, Judge Sudeyko commented: “The authorities make it clear that this Court does not have jurisdiction to issue either an injunction or make a declaratory order.” Judge Sudeyko determined that the court was without jurisdiction to deal with such a claim and dismissed all claims by Ms. Bi and Mr. Izaz for loss of rental income based upon the City’s enforcement of the by-laws. [ 12 ] I am bound by the decision of Judge Sudeyko on the issue of loss of rental income. The claim for loss of rental income by Ms.

Bi in the present claim remains dismissed. [ 13 ] The issues that I am left to deal with in this case involve Ms. Bi’s allegation that the City caused $15,000 worth of damage to the landscaping and plants through the negligent use of the backhoe to clear debris on the property. The other issue concerns whether the City workers removed $20,000 worth of building materials from the property, as set out in the claim. [ 14 ] On September 30, 2014, the City sent a work crew to the property owned by Ms. Bi at 11409 142 nd St., Surrey, to clear the property of what the City had determined to be debris.

Notice had previously been provided to Ms. Bi by the City of their intended actions. The actions of the City were done pursuant to by-law enforcement procedures. [ 15 ] Whether the City acted within its rights to enforce the by-laws is outside of the jurisdiction of this court. In his ruling of October 19, 2017, Judge Sudeyko limited the scope of this hearing to the issue of whether the City acted negligently in the operation of the backhoe, thus causing damage to the landscaping and plants on the property of Ms. Bi. The other issue is whether Ms.

Bi suffered damages from the City workers removing building materials when they entered onto the property to clear it of debris. [ 16 ] The onus is on the claimant, Ms. Bi, to prove on a balance of probabilities that damage occurred as set out in the notice of claim and to substantiate the monetary claim to remedy the damage. [ 17 ] Mr. Izaz testified that he attended Ms. Bi’s property on September 30, 2014, while the City workers were on the property clearing debris. The City by-law officer who was overseeing the clean-up of the property was Andrew Singh. When Mr.

Izaz attended the property at about noon that day, Mr. Singh refused to permit him onto the property while the City was cleaning the debris. [ 18 ] Mr. Izaz testified that the City workers were emptying the contents of recycling, green, and garbage bins onto the property, and then using the backhoe to pick up the debris. Ms. Bi recorded the actions of the City workers on videos, which were played in court and entered into evidence as exhibits. [ 19 ] According to Mr. Izaz, the City dug up the entire landscaping of the 30,000 square-foot lot with the backhoe.

Photographs of the damage caused to the property by the backhoe were put into evidence by Mr. Izaz. [ 20 ] Mr. Izaz also testified that the City workers removed plywood from the property, granite slabs, wood carvings and items from the storage shed on the property.

[ 21 ] Mr. Izaz estimates that the cost to repair the landscaping on the property would be in the range of $8,000 to $10,000, which is based upon a figure he was provided by someone who looked at the damage. No written estimate was provided. [ 22 ] In support of his assertion that building materials were improperly removed from the property, Mr. Izaz relies upon the photographs of the property prior to the clean-up, showing pieces of wood stacked against the house. He also asserts cement slabs seen on the ground near the garden were, in fact, granite slabs to be used as countertops. Mr.

Izaz relies upon a receipt dated August 17, 2014, for granite countertops valued at $8,805.69, delivered to him at an address of 14165 110 th Ave., Surrey. He alleges that the cement slabs seen in the photos, with grass growing around them, were in fact granite countertops which were removed improperly by the City with the backhoe. [ 23 ] Gordon Wiederick is a by-law officer for the City who had previously dealt with Ms. Bi concerning the removal of debris from the property in March 2014. He testified that complaints had been received from neighbours concerning unsightly debris on the property. Ms.

Bi arranged to have the property cleared of the debris after Mr. Wiederick provided notice that the City required it to be cleaned up. [ 24 ] Andrew Singh testified that he was the by-law officer who provided notice to Ms. Bi in September 2014 that the debris on the property would have to be cleared within a certain time frame or the City would take the necessary actions to clear the property of debris. [ 25 ] On September 30, 2014, Mr. Singh arrived at Ms. Bi’s property at 9:00 a.m. with the City crew to clear the property of the debris, which had not been removed by Ms.

Bi after notice was provided by the City. [ 26 ] Mr. Singh testified that there was debris all over the property, including used syringes or needles scattered across the property, which posed a health risk. According to Mr. Singh, the property was being used as a rooming house. [ 27 ] Mr. Singh identified piles of rubbish, used furniture, rotten wood and other debris from the videos of the property and photographs that were entered into evidence. [ 28 ] Given the nature and extent of the debris on the property, Mr. Singh testified that the City was required to use a backhoe and dump truck to clear the property.

Mr. Singh denies that the City was negligent in the operation of the backhoe, or that any damage was caused to the landscaping and plants. He also denies that the City removed building materials from the property or, in particular, granite countertops. [ 29 ] Mr. Singh testified that the City followed normal procedures in cleaning up the property and removing debris. Any damage that may have occurred was transient in nature.

He points to the photos of the property after the clean-up to demonstrate that although there may be tire marks on the lawn from the backhoe, the tire marks are minimal and temporary. [ 30 ] On May 8, 2015, Mr. Singh drove past the property and observed that the grass on the lawn had grown back. Likewise, on June 7, 2015, he observed that the grass had re-grown. Mr. Singh asserts that no lasting damage was caused to the landscaping or the plants on the property by the City’s use of the backhoe on September 30, 2014. [ 31 ] Clinton May-Jendyk is a heavy equipment operator employed by the City.

He was the operator of the backhoe on September 30, 2014. Mr. May-Jendyk testified that the backhoe was used to pick up heavy or contaminated items from the property. Mr. May- Jendyk testified that he picked up dilapidated furniture, mouldy plywood, garbage, rotting materials, brush and debris from the property using the backhoe. As the backhoe weighs between 5000 and 7000 pounds, it leaves ruts and tire marks on the lawn. Mr. May-Jendyk described the lawn as unmaintained and overgrown. [ 32 ] I accept the evidence of the witnesses called on behalf of the City that Ms.

Bi’s property was covered in debris when the crew attended to clear it on September 30, 2014. I also accept the evidence that used syringes or needles were scattered across the property causing a health concern. [ 33 ] I do not accept Mr. Izaz’s testimony that legitimate building supplies were removed from the property. The photographs support the testimony of the City employees that the building materials consisted of rotting materials and mouldy plywood. [ 34 ] I also do not accept Mr. Izaz’s testimony that granite countertops were removed from the property by the City.

The cement slabs which are seen in the photographs at the edge of the garden are not granite countertops as alleged by Mr. Izaz. Mr. May-Jendyk does not recall removing the cement slabs from the property with the backhoe. If they were removed from the property by the City, Ms. Bi has failed to provide any evidence of their cost. [ 35 ] I find that the City removed debris from the property of Ms. Bi, and she has failed to establish that legitimate building supplies were removed as set out in the notice of claim.

Therefore, the claim for $20,000 for the loss of building supplies is dismissed. [ 36 ] I also accept the testimony of the City employees that the property was overgrown and unmaintained when the backhoe was used to clear the debris. There is no evidence to support Ms. Bi’s allegation that the City was negligent in the use of the backhoe on the property. I accept the testimony of Mr. May-Jendyk that he operated the backhoe in a normal fashion and that it was expected the backhoe would leave tracks due to its weight. [ 37 ] Ms.

Bi has presented no evidence to justify her claim of $15,000 for damage to the landscaping and plants on the property due to the use of the backhoe. I do not accept Mr. Izaz’s testimony as to the oral estimate he received to repair the alleged damage. I accept Mr. Singh’s testimony that within 6 months, the tire treads and ruts from the backhoe had disappeared and the lawn had re-grown. I find that there was no lasting damage to the landscaping or plants from use of the backhoe. [ 38 ] Ms. Bi’s claim for $15,000 in damages to the landscaping and plants is dismissed. [ 39 ] Ms.

Bi’s claim against the City is dismissed.

[ 40 ] Given the ruling of Judge Sudeyko that there were triable issues on the claim for damages by Ms. Bi, I am not going to grant the City’s request for fees, costs, and expenses, or that a penalty is to be levied against Ms. Bi pursuant to Rule 20(5) of the Small Claims Rules . [ 41 ] Order accordingly. ____________________________ The Honourable Judge P. La Prairie Provincial Court of British Columbia