Mort and Power et al. v. Le et al. Date:, 2016 BCPC 287

Citation: Mort and Power et al. v. Le et al. Date: 20160908 2016 BCPC 287 File Nos: C6626; C6643 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil Division File No. C6626 BETWEEN: ANTHONY MORT CLAIMANT AND: LAN-AHN (ANNIE) LE DEFENDANT File No. C6643 BETWEEN: KEVIN JOSEPH POWER AND INGELORE POWER CLAIMANT S AND: LAN-AHN (ANNIE) LE, CITY OF COLWOOD AND LEHIGH HANSON MATERIALS LIMITED DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing for A. Mort : A. Mort

Appearing for K. and I. Power : K. and I. Power Counsel for Lan-Ahn (Annie) Le : L.J. Alexander Appearing for City of Colwood and Lehigh Hanson Materials Limited : No appearance Place of Hearing: Colwood , B.C. Date of Hearing: August 31, 2016 Date of Judgment: September 8, 2016 Introduction [ 1 ] THE COURT: Before the court are two applications by the Defendant Annie Lan-Ahn Le, otherwise described as Lan-Ahn (Annie) Le (the "Defendant"), brought against two sets of Claimants in two separate actions, namely the action of Anthony Mort (the "Claimant Mort"), being Western Communities Registry File No.

C6626 (the "Mort Action"), and Kevin Joseph Power and Ingelore Power (the "Claimants Power"), in Western Communities Registry File No. C6643 (the "Power Action").

The applications are to strike their respective claims against the Defendant and to dismiss each of the two actions against the Defendant. [ 2 ] The respective applications in each of the two actions have been heard at the same time. [ 3 ] The Claimant Mort and the Claimants Power are collectively referred to as the "Claimants" in these reasons. [ 4 ] The Claimants oppose the Defendant's applications to strike and dismiss their respective claims. [ 5 ] These applications follow a settlement conference held in each of the actions at separate times and in front of separate settlement conference judges. [ 6 ] As I understand it, the issues identified by the settlement conference judges were: 1) whether the Claimants have standing in their respective actions to sue the Defendant based upon the relevant facts; and 2) whether the Provincial Court has jurisdiction to hear the subject matter of the Claimants' actions against the Defendant. [ 7 ] These issues are therefore before me in each action for a determination. [ 8 ] The Claimants are self-represented and have been at all material times.

The Defendant is represented by legal counsel. [ 9 ] At the conclusion of the hearing of these applications, I told the parties that I was granting the relief being sought by the Defendant to strike both claims and to dismiss each of the two actions against the Defendant, and that reasons would follow. These are those reasons for judgment.

Circumstances Relevant Circumstances Relating to the Royal Bay Bluffs Development [ 10 ] The Claimants and the Defendant live in a neighbourhood in the City of Colwood, British Columbia (the "City"), commonly known as "Royal Bay Bluffs" or "The Bluffs", which is part of a residential development known as the Royal Bay Development. [ 11 ] This development was undertaken in separate stages by the same developer, Lehigh Cement Limited ("Lehigh Cement").

At least two separate subdivision plans giving rise to the subdivision community were registered in the Land Title Office. [ 12 ] The Claimant Mort owns Lot 23 within Subdivision Plan VIP 79371 and the Claimants Power own Lot 24 within the same Subdivision Plan VIP 79371. That plan of subdivision was filed in the Land Title Office around August of 2005. [ 13 ] Claimant Mort acquired title to Lot 23 in December of 2010. Claimants Power acquired title to Lot 24 in May of 2014. [ 14 ] The Defendant owns a lot in a different plan of subdivision, namely Lot 31 in Plan VIP 84204.

That plan of subdivision was filed in the Land Title Office around December of 2007. The Defendant acquired title to Lot 31 in January of 2010. [ 15 ] It is common ground that the Claimants' lots, on one hand, and the Defendant's lot, on the other, are accessed by different streets but are in fairly close proximity to each other. The Defendant's Lot 31 is on a bluff above the separate lots owned by Claimant Mort and by Claimants Power.

The Defendant's residence and a portion of her lot are visible from the respective lots of the Claimants. [ 16 ] The respective lots of the Claimants are subject to a statutory building scheme created under s. 222 of the Land Title Act and registered under No.

EX103304 (the "SBS"). [ 17 ] The SBS was registered at the time of filing Plan VIP 79371 and apparently remains registered against all of the 39 lots created by and contained in Plan VIP 79371. [ 18 ] The respective lots of the Claimants are also each subject to a number of covenants in favour of the City. [ 19 ] The Defendant's lot is not subject to the SBS, or to any other registered statutory building scheme or any registered common law

building scheme. [ 20 ] However, the Defendant's Lot 31 is subject to a covenant in favour of the City granted by Lehigh Cement pursuant to s. 219 of the Land Title Act and registered under number FB128167 (the "s. 219 Covenant") at the time of the registration of Plan VIP 84204.

The s. 219 Covenant charges all of the 39 separate lots within Plan VIP 84204. [ 21 ] It is common ground that the SBS and the s. 219 Covenant are quite similar in relation to the content, wording, and the various terms contained within each. [ 22 ] Overall, the SBS and the s. 219 Covenant contemplate procedures whereby there is a restriction on commencing any improvements on a charged lot until plans and specifications are submitted to an approving entity described as an "Administrator" and the approval of the Administrator is obtained through what is called a "Design Review Process". [ 23 ] Both the SBS and s. 219 Covenant contain a reference to what is referred to as a "design code" (herein referred to as the "Design Code").

The Design Code is not to be confused with the National Building Code. [ 24 ] Both the SBS and the s. 219 Covenant say that the objective and the purpose of the Design Code are to establish "an identifiable high-quality residential neighbourhood that complements the physical character of the Colwood area" and to ensure "quality of development". Both the SBS and the s. 219 Covenant indicate that "while the [Design] Code controls architectural and landscaping elements within each home-site, the intent is not to inhibit creativity".

Each goes on to say that the purchasers (or owners) of the burden lots are "encouraged to explore home site potential within the context of the [Design] Code." [ 25 ] In more specific language contained within paragraph 2(

b) of the SBS and paragraph 2.2 of the s. 219 Covenant, both state that as follows: "The purpose of the [Design] Code is to establish and protect the purchaser's [or owner's] investment in the neighborhood by ensuring the integrity of development of every home-site in the Bluffs subdivision [and says in the case of the s. 219 the Subdivision: "of every dwelling in the Subdivision”]. The [Design] Code addresses the character and quality of all aspects of development: (

i) form and placement of buildings within the home site and relative to one another; (ii) architectural form and character of buildings; (iii) landscape elements within the home-site. [ 26 ] The Design Code requirements found in the SBS and in the s. 219 Covenant also contain and provide landscape and construction guidelines and requirements besides the design guidelines and requirements.

These are described in the provisions dealing with buildings and siting of improvements and also in what is separately described as "architectural character" to ensure "a general sense of fitting into the surrounding context of homes".

Specifically it is noted that: Topographical features such as rock outcroppings, grade changes, and native tree cover must form an integral part of each property's development, severe grade alteration or excessive tree removal which affects adjoining properties will be cause for plan's rejection. [ 27 ] The restrictions in the SBS are stated to be for the benefit of all of lots in Plan VIP 79371, being 39 lots in number.

The SBS contains the following relevant provision in paragraph 14: The terms have been instituted for the general benefit of all owners of all Lots from time to time and each owner, in agreeing to buy any lot or lots, acknowledges such general benefit and the personal benefit attaching to the Lot purchased and agrees that notwithstanding anything herein contained, their being in violation of the restrictions will constitute an injury and damage to all owners of the Lots from time to time impossible to measure monetarily and, as a result, any or all the other owners of the lots from time to time shall, in addition to all the other remedies in law and in equity or herein, be entitled to a decree or order restraining or enjoining any breach of any such provisions and, if named in an application for such an order, will not plead in his or her defense that there would be an adequate remedy in law. [ 28 ] The Administrator named in the SBS is the corporate entity known as Royal Bay Development Limited; it is granted significant discretion under the SBS.

It may be a subsidiary of Lehigh Cement. [ 29 ] The SBS contains several provisions purporting to shield or waive liability on the part of the Administrator and to indemnify and save harmless the Administrator from liability for failure to enforce any of the terms of the SBS or any diminution in value of any lot as a result of the creation of or modification or amendments to the Design Code. [ 30 ] Under the terms of the s. 219 Covenant, the Administrator also named is the corporate entity known as Royal Bay Development Limited.

Similar provisions purporting to shield or waive liability and similar indemnity provisions are contained in the s. 219 Covenant.

These provisions also extend to cover the City. [ 31 ] Again the Administrator is granted broad discretion under the s. 219 Covenant. [ 32 ] Paragraph 10 of the SBS and paragraph 12 of the s. 219 Covenant state the restrictions contained in each document are not to be "deemed to be exclusive either of the requirements of bylaws of the City or of obligations or liabilities imposed by statute or the common law on owners or occupiers of land, all of which shall be complied with." [ 33 ] Significantly, under paragraph 15 of the s. 219 Covenant it states: The City shall be under no obligation to enforce any of the provisions of this Covenant.

The Claimants' Claims Against the Defendant [ 34 ] The Claimants Power and the Claimant Mort each are suing the Defendant for damages for loss of property value, which in their respective Notices of Claim, is stated to be $70,000, which of course is beyond the monetary jurisdiction of this court. Accordingly, they have each limited their claim to the monetary jurisdiction of this court.

There is no issue that they waived the amount in excess of the monetary jurisdiction of this court, although those precise words of waiver are absent. [ 35 ] Each of the two sets of Claimants sues the Defendant on the basis that the Defendant failed to gain the approval of the Administrator before the Defendant proceeded with her construction on Lot 31.

Each particularizes what are alleged to be breaches all resulting from the work undertaken by the Defendant, including what is described as construction of an "extensive and unsightly concrete retaining wall (as much as 14 feet high)". [ 36 ] The Notice of Claim in the Power Action filed January 13, 2016, pleads as follows: All owners of the property within the Royal Bay Bluffs subdivision are the ultimate beneficiaries of the Building Scheme which Lehigh Cement Limited registered pursuant to a

section 219 Covenant in favour of the City of Colwood in the Victoria Land Title Office under no. FB128167. We, as owners of a home in the Royal Bay Bluffs subdivision and as part of the neighbourhood also have a Statutory Building Scheme, registered pursuant to a

section 220 Covenant registered against our property by Lehigh Cement Limited in the Victoria Land Title Office under no. EX103304. [ 37 ] The Notice of Claim in the Power Action therefore refers to the s. 219 Covenant as a "Building Scheme" and pleads that "all owners within the Royal Bay Bluffs Subdivision" are the ultimate beneficiaries of that charge.

I understand that such owners are to be the ultimate beneficiaries, because they have the SBS registered against their lots, and both the SBS and the s. 219 Covenant have very similar arrangements requiring the approval of the Administrator before commencement of work on any of the lots that are subject to those restrictions. [ 38 ] The Notice of Claim in the Mort Action filed December 16, 2015, makes no mention of the s. 219 Covenant, but does refer to the SBS, which is described as "intended for the general benefit of all owners".

Based upon the submissions of Claimant Mort, I now understand this to mean all owners within any stage of the subdivision commonly known as the Royal Bay Bluffs Subdivision, and in no way limited to any particular stage, phase, or subdivision plan or any particular type of encumbrance, such as the s. 219 Covenant or the SBS. [ 39 ] The Notices of Claim filed by each group of Claimants allege that work undertaken by the Defendant has negatively impacted the value of the neighbouring properties including their own.

They also both indicate that the various breaches of the SBS or the s. 219 Covenant "are reversible", and each state that it is "our preferred solution", but go on to indicate that the Defendant's refusal to take necessary remedial action results in them seeking "financial compensation for [their] home depreciation." [ 40 ] The Claimants Power have named two other defendants in the Power Action, namely the City of Colwood and a corporate entity known as Lehigh Hanson Materials Limited, which they allege is now the Administrator under the s. 219 Covenant. [ 41 ] As against the City, the Claimants Power claim damages based for diminution of the value of their property based on an allegation that the City issued a building permit to the Defendant, notwithstanding that the Administrator or its designate had not granted the necessary approvals under the s. 219 Covenant. [ 42 ] As against the corporate entity Lehigh Hanson Materials Limited, identified in the Notice of Claim as being the Administrator, it is alleged that it is liable to the Claimants Power for breach of a duty owed to the Claimants Power to perform its duties under the s. 219 Covenant "to ensure that any and all improvements proposed on lots controlled by the Covenant (Building Scheme) do factually comply with the provisions of the Building Scheme and to prevent construction that is not approved.” Further they demand that this defendant fulfils its duties and "instruct" the Defendant "to reverse all infractions she made against the Building Scheme." [ 43 ] I understand that this reference to the "Building Scheme" is to the restrictions contained in the s. 219 Covenant. [ 44 ] The two defendants, the City and Lehigh Hanson Materials Limited, have filed their respective replies.

Separate applications have been filed by each of these defendants seeking the same relief as is sought by the Defendant in this hearing.

Those applications are scheduled for hearing shortly. [ 45 ] The Claimant Mort has not joined the City or Lehigh Hanson Materials Limited as defendants in the Mort Action. [ 46 ] In the Defendant's Reply to the Power Action filed January 25, 2016, and in her Reply to the Mort Action filed December 30, 2015, she denies: 1) that her Lot 31 is subject to a statutory building scheme; 2) that any modifications to Lot 31 are in contravention of any statute, regulation, bylaw, or legal instrument; 3) that any change or alteration of Lot 31 has caused loss or damage to the Claimants; 4) that there is any diminution in the value of the Claimants' lands or any other provable damages; and then pleads failure on the part of the Claimants to mitigate damages. [ 47 ] The Defendant says in her Replies that she has obtained a development variance permit and a building permit from the City, who has the right under the s. 219 Covenant to choose to enforce or not to enforce the s. 219 Covenant.

[ 48 ] The Defendant further says that the Claimants do not have any standing to enforce the s. 219 Covenant because that right is held by the City and nobody else and, in any event, the Claimants do not hold property within the subdivision in which Lot 31 is located, namely Subdivision Plan VIP 84204, and hence, if anybody else has such a right to enforce the s. 219 Covenant, which is denied, the Claimants do not. [ 49 ] Specifically, the Defendant also says that this court is without jurisdiction to grant relief to the Claimants, to the extent that any changes to Lot 31 be reversed or to grant any other injunctive or mandatory orders. [ 50 ] On August 4, 2016, the Claimant Kevin Power alone purportedly filed an "Amended Notice of Claim" which was apparently completed by a solicitor. [ 51 ] It was filed after the June 24, 2016, Settlement Conference in the Power Action, but without permission of a judge as required by Rule 8(1)(

b) of the Small Claims Rules . In the Amended Notice of Claim, the Claimant Kevin Power pled that the Defendant had breached her duty to the Claimants Power to have the retaining wall and its footings and foundations designed by a qualified engineer and inspected by a person qualified to do this, thus resulting in the creation of "a real and substantial danger to the Claimants of the collapse of the retaining wall" into the residence of the Claimants Power, and thereby resulting in loss and damages to the Claimants Power. [ 52 ] In submissions at the outset of the hearing before me, the Defendant took issue with the lack of compliance with Rule 8(1)(

b) and with the substance of these new allegations. [ 53 ] I ruled that the "Amended Notice of Claim" was not properly before the court and accordingly the application to strike the Claimants Power's Claim would be dealt with only on the basis of the original Notice of Claim filed on January 13, 2016. I also ruled that the new issues raised in the Amended Notice of Claim would not in any way be considered to have been adjudicated upon by this application. Position of the Defendant on the Application [ 54 ] By way of a brief

summary, the basis of the Defence application to strike and to dismiss both sets of claims relies upon certain issues raised in each Reply; namely of the Claimants' lack of standing to bring their respective claims, and the lack of standing and jurisdiction of the Provincial Court to deal with the subject matter of the Power Action and the Mort Action. [ 55 ] The Defendant says specifically that this court has no jurisdiction to grant declaratory or injunctive relief, nor to grant damages in lieu of injunctive relief. [ 56 ] Further, the Defendant argues that if this court does not have jurisdiction to hear a dispute relating to the s. 219 Covenant or to the SBS, then such lack of jurisdiction gives the Claimants no standing. [ 57 ] Simply put, if a person has no standing or there is no jurisdiction to address the matters sought to be brought in front of this court, there is no cause of action and nothing upon which to base any claim for damages or other relief.

Position of the Claimants on the Application [ 58 ] The basis of the Claimants opposing the Defendant's application is less clear. I understand that both groups of Claimants support the position being advanced by the other. [ 59 ] At the foundation of their respective positions, as I understand them, is the notion that starting back in 2001 there was a common intent and an understanding at the time of the planning of and in the early processes of obtaining community approval and the formal approval of the City for the Royal Bay Bluffs Subdivision.

It is submitted that the common intent and understanding was that it was to be only one carefully planned and controlled subdivision, with a large number of lots, and all of those lots were to be developed in accordance with the same rules and standards set out in a form of a building scheme. [ 60 ] Furthermore, that form of building scheme was to impose certain burdens and restrictions on the owners, and all of the owners would have the benefit and protection derived from the building scheme and the ability to enforce against all other owners who were not in compliance with the building scheme. [ 61 ] Also, no staged or phased development was contemplated at the time that the common intent and understanding was reached. [ 62 ] Essentially, it is argued that it was not commonly known by the residents of Royal Bluffs Subdivision, and specifically the owners within Plan VIP 79371, that the SBS that burdened their property did not also extend to the lots within Plan VIP 84204. [ 63 ] It is further submitted that what was registered against both the lots within Plan VIP 79371 and the lots within Plan VIP 84204 was the identical type of restrictions and identical approval requirement, all to be administered by the same Administrator and in the same consistent manner. [ 64 ] Notwithstanding that as against the lots in Plan VIP 79371 the building scheme was registered as the SBS and as against the lots in Plan VIP 84204 the building scheme was registered as the s. 219 Covenant, that on what I understand is an equitable basis or a fairness basis, the Claimants argue that the owners, subject to the SBS, and the owners, subject to the s. 219 Covenant, should have the benefits and burdens of the same building scheme restrictions and should be able to enforce those benefits and burdens against all the owners of lots within the Royal Bay Bluffs subdivision. [ 65 ] The Claimants argue that they are not trying to get an injunction against the Defendant, but rather to be compensated by way of damages for their loss flowing from the failure of the Defendant to obtain the Administrator's approval for her house design and development, or for proceeding without that approval, or for proceeding not in accordance with the Administrator's approval.

[66] While I have outlined the position of the Claimants for the purposes of my reasons, I must note that there is very little in theway of actual evidence before me to support their notion of the common intention and agreement reached back as far as 2001. Analysis The Law Relating to Jurisdiction of the Provincial Court [67] Section 3(1) of the Small Claims Act, S.B.C. 1996, c. 430, provides a general statement of the jurisdiction of the ProvincialCourt under the Small Claims Act in the following terms: Claims the court may hear 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.

(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution. [68] The Provincial Court has no express authority to grant equitable remedies. However, under the Law and Equity Act, R.S.B.C.1996, c. 253, the Provincial Court has limited jurisdiction arising from "necessary implication" to deal with matters of procedure toensure justice is done (see: CLEBC: Provincial Court Small Claims Handbook,

Chapter 2,

part 2.3 and the cases referred to thereinincluding R.K. v. McBride, [1994] B.C.J. No. 2791 (QL) (Prov. Ct.), and Craig v. Gidyk, [1994] B.C.J.

No. 1591). [69] Generally, a claim that seeks certain types of injunctive relief is beyond the jurisdiction of the Provincial Court except as noteddirectly above. [70] Also, a claim that seeks a declaratory order is beyond the jurisdiction of the Provincial Court, unless the order is incidental to aclaim for relief in which the court has jurisdiction, such as specific performance (see: CLEBC Provincial Court Small Claims Handbook,Chapter 2, part 2.4(3) and the cases referred to therein including: Stenerson v. Insurance Corporation of British Columbia (1992)C.C.L.I. (2d) 111 (Prov. Ct.); Evans v.

Campbell (1993), (BC CA), 77 B.C.L.R. (2d) 211 (C.A.), and Tilbert v. Jack,[1995] B.C.J. No. 938 (QL) (Prov.

Ct.)). [71] The Provincial Court of British Columbia cannot grant a remedy that affects any interest in land, since Provincial Statutesconfer this jurisdiction on the Supreme Court of British Columbia: for example, see the Property Law Act, R.S.B.C. 1996, c. 377 at ss. 3,13, and 35. [72] The Provincial Court does have jurisdiction to consider claims in which interests in land are at issue, insofar as those interestsrelate to a claim for debt or damages provided, however, no statute precludes consideration by the Provincial Court, and so long as theremedy does not affect title or an interest in land.

Within those limitations, it is open to the Provincial Court to assume jurisdiction; forexample, in matters involving breach of contract relating to land (see Lou Guidi Construction Ltd. v. Fedick, [1994] B.C.J. No 2409(PC)). [73] The Provincial Court does have jurisdiction to dismiss a claim in an application brought upon notice following the settlementconference: see Baldwin v. Baldwin, 2013 BCSC 1396, citing Belanger v. A T & T Canada Inc., [1994] B.C.J. No 2792 at paragraph 4.

The Issue of Standing of the Claimants and the Jurisdiction of the Provincial Court in the Present Case [74] At the very foundation of the Claimants' respective claims are their respective abilities, by way of standing, to maintain anaction and to obtain a remedy against the Defendant on the basis of her breach of either the SBS or the s. 219 Covenant. [75] The evidence before the court is clear that, as against the Defendant, neither of the two groups of Claimants enjoys or has rightsto the benefits under either the SBS or the s. 219 Covenant or any right of enforcement.

The Defendant is a stranger to the SBS and theClaimants are strangers to the s. 219 Covenant. Similarly the Defendant has no rights under the SBS or the s. 219 Covenant as againstthe Claimants or any right of enforcement. [76] This is because the Defendant's Lot 31, Plan VIP 84204, is not part of the Plan VIP 79371. It is only the lots within Plan VIP79371 which are bound by and have the benefit of the SBS.

As owners within Plan VIP 79371, the Claimants have the standing to seekto enforce the SBS against their fellow owners only within that plan in a court of competent jurisdiction. [77] Notwithstanding the similarities between the SBS and s. 219 Covenant, the Claimants have no standing to enforce the s. 219Covenant against the Defendant or any other owner within Plan VIP 84204. [78] The clear wording of the s. 219 Covenant gives only the City that standing; it also gives the City a broad discretion as towhether or not to enforce the terms of the s. 219 Covenant. Century Holdings Ltd. v.

Delta, (BC CA), 89 B.C.L.R.(2d) 193, is authority for the proposition that where the powers of a municipality under a restrictive covenant are permissive or arediscretionary, then there is no claim against the municipality for breach or non-enforcement of the covenant provisions.

[ 79 ] Specifically, the standing and the ability to challenge the City's discretion does not also extend to the owners within Plan VIP 84204.

Certainly that standing does not extend to any other owners within any other plan such as Plan VIP 79371. [ 80 ] The fact that the Claimants are owners of lots within the Royal Bay Bluffs Subdivision does not provide them with the standing to enforce any legally-recognized right based upon their unhappiness with any alleged failure of the Defendant to abide by the Design Code or the development approval process or with any constructed improvements, including the retaining wall which is visible from the Claimants' respective properties. [ 81 ] The authority for these conclusions as to who has the standing to enforce these types of restrictions is established in the decision of Madam Justice Huddart, then a member of the British Columbia Supreme Court, in Munro v.

Jaehrlich , [1994] B.C.J. No 2887 . [ 82 ] Her decision was in the context of a common law building scheme and not in the context of a s. 222 statutory building scheme or a s. 219 Covenant. However, I am of the view that the reasoning in Munro v. Jaehrlich applies to the question of standing to enforce the SBS and the s. 219 Covenant in the matters before me. [ 83 ] I agree with the Defendant's submission as it relates to the s. 219 Covenant in favour of the City.

If the City wished to enforce the Covenant, the Provincial Court would not have any jurisdiction to do so, as it has no jurisdiction to grant declaratory or injunctive relief in matters of this nature. [ 84 ] If I am incorrect with respect to my conclusion about Claimants' standing to seek remedies based upon the SBS or the s. 219 Covenant, then I must consider the standing which the Claimants claim exists for some remedy based upon the notion of the common intent to have all lots within the Royal Bay Bluffs Subdivision bound by the same set of restrictions enforceable by all owners. [ 85 ] I agree with the Defendant's submission that to accept that submission, this court would have to ignore the clear provisions of the Land Title Act that specify that an owner of an indefeasible title is not subject to any charges that are not property registered against the person's title.

Section 29 of the Land Title Act provides as follows: Effect of notice of unregistered interest 29(1) For the purposes of this section, " registered owner " includes a person who has made an application for registration and becomes a registered owner as a result of that application.

(2) Except in the case of fraud in which he or she has participated, a person contracting or dealing with or taking or proposing to take from a registered owner (

a) a transfer of land, or (

b) a charge on land, or a transfer or assignment or subcharge of the charge, is not, despite a rule of law or equity to the contrary, affected by a notice, express, implied, or constructive, of an unregistered interest affecting the land or charge other than (

c) an interest, the registration of which is pending, (

d) a lease or agreement for lease for a period not exceeding 3 years if there is actual occupation under the lease or agreement, or (

e) the title of a person against which the indefeasible title is void under section 23 (4). [ 86 ] The Provincial Court does not have jurisdiction to grant a remedy that affects the title or an interest in land. I have concluded that any determination of the Claimants' rights as against the Defendant, in light of s. 29 of the Land Title Act , would necessitate affecting the Defendant's title to Lot 31.

Therefore, I am precluded from considering such a remedy. [ 87 ] If I am completely wrong and the Claimants do have standing to maintain their action against the Defendant, then I must still consider whether or not the remedy being sought is within the jurisdiction of this court. [ 88 ] I have concluded that it is not. [ 89 ] The Claimants submit that they are actually seeking damages.

They state in their Notices of Claim words to the effect that the unapproved improvements are "reversible" and that "this is our preferred solution", but because the Defendant has "refused to reverse her actions", financial compensation is being sought "for our home depreciation, unless all infractions have been corrected". [ 90 ] I agree with the Defendant's submission that the remedy that is actually being sought by the Claimants is specific performance of the restrictions, whether contained in the SBS or in the s. 219 Covenant.

That is their "preferred solution". [ 91 ] As stated in Capital Regional District v. Millstream Industrial Park Ltd. , [1990] B.C.J. No 370 on page 6, by Tyrwhitt-Drake L.J.S.C. (as he was then): The enforcement of a negative covenant is really a matter of its specific performance. The Court simply orders the defaulting party to a contract to carry out his negative bargain. No question of the balance of convenience and other such considerations arises; there is very little (if any) discretion in the matter: Doherty v.

Allman (1878), 3 A.C. 709. [ 92 ] However for the court to provide the Claimants with their "preferred solution", it would entail granting injunctive relief or making a declaratory order to require the Defendant to comply with restrictions and requirements contained in the SBS or the s. 219 Covenant. Both remedies are beyond the jurisdiction of this court, especially in light of the fact that to grant such a remedy would affect title or an interest in land.

[ 93 ] Given that such a remedy is not available to the Claimants from this court, I must then consider whether the remedy of damages can by granted by this court as an alternative remedy. [ 94 ] I think not. In Hill v. Vernon (City) , [1987] B.C.J. No 2135 , MacDonald L.J.S.C. (as he then was) was considering the issue of whether the court has the power to award damages in lieu of an injunction when the court had no power to grant an injunction against Her Majesty the Queen in Right of the Province of British Columbia, by virtue of s.11(2) of the Crown Proceeding Act . [ 95 ] The court, in Hill v.

Vernon, stated as follows at pages 10 and 11: . . . The jurisdiction of the courts to award damages for threatened injuries derives from the statutory jurisdiction conferred on the Courts of Equity with the enactment of the Chancery Procedure Amendment Act , 1858, (Lord Cairns' Act) 21 & 22 Victoria C 27 ss. 1 & 2. This statutory jurisdiction was made part of law of B.C. in 1858 - Law & Equity Act , 1979 R.S.B.C. Chap. 224, sec.

Section 2 of Lord Cairns' Act reads: "2.

In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the Court shall direct." [ 96 ] Relying on the decision of Buckley L.J. in Price v.

Strange , [1978] Ch 337 (C.A.) , Macdonald L.J.S.C. concludes as follows at page 12: Buckley L.J. has stated that if the court has jurisdiction to entertain a claim for specific performance, then the court has discretion under

section 2 of Lord Cairns' Act to award damages. It would follow that the same rule would apply when court is entertaining an application for an injunction. If the court has jurisdiction to entertain such an application, then it can award damages in lieu thereof, but not otherwise. Accordingly, I would find that this court has no power to award damages against the defendant, Her Majesty the Queen in Right of the Province of British Columbia, in lieu of an injunction. [ 97 ] The situation in Hill v. Vernon (City) is analogous to the situation before this court.

Here the court has no jurisdiction to grant an injunction against this Defendant in favour of the Claimants and therefore, by operation of Lord Cairns' Act, this court has no power to grant damages to the Claimants in lieu. Conclusions and Orders [ 98 ] Based on all of the above, I have concluded that neither the Power Notice of Claim nor the Mort Notice of Claim disclose a reasonable cause of action against the Defendant Annie Lan-Ahn Le, otherwise described as Lan-Ahn (Annie) Le. Neither the Claimants Power nor the Claimant Mort has the standing to maintain their respective actions.

Therefore, it is the decision of this court that both Notices of Claim against the Defendant Annie Lan-Ahn Le, otherwise described as Lan-Ahn (Annie) Le, be struck in accordance with her application. [ 99 ] Further, and in the alternative, the subject matter of both the Power Notice of Claim and the Mort Notice of Claim are beyond the jurisdiction of the Provincial Court of British Columbia and, accordingly, the Power Action and the Mort Action are both dismissed as against the Defendant Annie Lan-Ahn Le, otherwise described as Lan-Ahn (Annie) Le, in accordance with her application. [ 100 ] Given that the purported Amended Notice of Claim filed by the Claimant Kevin Joseph Power is not properly before this court at this hearing and the new issues purportedly raised by it relating to the design, inspection, and safety of structures allegedly built by the Defendant Annie Lan-Ahn Le, otherwise described as Lan-Ahn (Annie) Le , have thus not been adjudicated upon, therefore the orders made by this court in this hearing are not to be construed as prejudicing the rights of the Claimants Power or the Claimant Mort to bring a separate action against the Defendant Annie Lan-Ahn Le, otherwise described as Lan-Ahn (Annie) Le, on those new issues in a court of competent jurisdiction. [ 101 ] The Defendant Annie Lan-Ahn Le, otherwise described as Lan-Ahn (Annie) Le, will file with the court and serve upon the Claimants her written submissions regarding penalty costs and fees and expenses, as permitted by the Small Claims Rules , that are claimed by the Defendant, and both sets of Claimants will have 14 days to file and serve their respective replies to the Defendant's submissions, and in the event that any new issue is raised by any of the Claimants in their reply submissions, with respect to the question of penalty costs and fees and expenses, then the Defendant will be at liberty to apply to the Registrar for liberty to file and serve a further written submission with respect to that new issue.

I will determine the issues based upon the written submissions, without further oral arguments. However, the court may direct that the parties attend before the court for a further oral hearing on the question of penalty costs and fees and expenses, if deemed necessary by the court. [ 102 ] There will be orders accordingly. The solicitors for the Defendant will be responsible for preparing the necessary form of the orders on each action and presenting each form of order to the respective Claimants for approval as to form within 14 days of receipt by those Claimants. (REASONS CONCLUDED)