City of Vancouver v. Stathis Date:, 2003 BCSC 799

Citation: City of Vancouver v. Stathis Date: 20030403 2003 BCSC 799 Docket: L020301 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment The Honourable Madam Justice Ross April 3, 2003 BETWEEN: CITY OF VANCOUVER PLAINTIFF AND: HARRY STATHIS DEFENDANT Counsel for the Plaintiff: B.

Parkin [ 1 ] THE COURT: This is an application for a declaration that the construction of an addition and retaining walls carried out by the defendant on his property is in contravention of certain City of Vancouver By-laws, and a mandatory injunction requiring the defendant to remove that construction. [ 2 ] The plaintiff seeks the following relief: First, a declaration that the defendant has constructed, added to or renovated the building and constructed a retaining wall on premises at 312 East 16 th Avenue in Vancouver, without having obtained a development permit or building permit as required by the Zoning and Development By-law and the Building By-law of the City of Vancouver.

Second, a declaration that the construction, additions and renovations to the building and retaining wall on the premises are in contravention of the Zoning and Development By-laws and the Building By-law of the City of Vancouver.

Third, a mandatory injunction requiring the defendant to demolish and remove those portions of the building and the retaining wall on the premises which have been constructed, altered or added to, in violation of the Zoning and Development By-law and the Building By-law of the City of Vancouver, and to make such alterations to the building on the premises as may be necessary in order to conform with the said By-laws, and finally costs.

The plaintiff had been seeking an additional permanent injunction, but concluded that such an application may be premature and has withdrawn the application for relief which was itemized in sub-paragraph (

d) of the Notice of Motion. [ 3 ] I should say by way of background that the defendant was served with these materials and counsel provided me with an Acknowledgement of Service of the outline and Notice of Hearing. The defendant, as well, filed a document which he titled Statement of Defence that was, however, clearly in form a response to the Notice of Motion. The defendant did not appear on this application. I note further that he was paged several times in the course of the morning, but did not appear.

Nevertheless, counsel for the plaintiff has taken me through in some detail, both the facts and the law that pertain to this issue and has directed my attention to the potential defences raised by the defendant in relation to this matter. [ 4 ] The complaint dates back to 1999 when, as a result of a neighbourhood complaint, the premises were checked for an illegal suite and Mr. Volpe, the Property Use Inspector for the City, found that the four-door open carport for which there was a permit, located at the rear of the premises had been enclosed and converted to a living space.

No permits had been obtained for this carport enclosure. [ 5 ] The second problem was that in December of 1999, there was an inspection which discovered that retaining walls had been built in the rear driveway covering an approximate size of 24 feet by 18 feet by 4 feet, and that these retaining walls had been filled with sand. Orders in relation to the offending constructions, both the carport enclosure and the retaining wall and second enclosure were issued April 2nd, 1999, December 21st, 1999, February 16th, 2000, February 19th, 2001 and February 4th, 2002.

These orders were all ignored. [ 6 ] In September 2000 charges were laid against the defendant for using a building in which development had taken place without a development permit. The matter went to trial on January 30th, 2001, and the defendant was convicted and fined.

Following that, the premises were inspected again and it was discovered that there was still not compliance, notwithstanding the orders and notwithstanding the conviction, and that brings the plaintiff to court today seeking the relief that has been outlined earlier in these reasons. [ 7 ] I am satisfied on a review of the legislation and decisions cited to me by plaintiff's counsel that, first, this is a circumstance in which a development permit and a building permit would have been required for the work in question, and that such were not obtained.

I am also satisfied that there is authority to order the removal of any building constructed in contravention of these provisions, and further that pursuant to ss. 334 and 571 of the Vancouver Charter that the City has the statutory authority to seek injunctive relief, to enforce its by-laws and to prevent continuation of by-law offences.

[ 8 ] Clearly here all efforts to obtain compliance have failed and the by-law and orders continue to be flouted by the defendant. I am satisfied, as well, that there is no defence to this application for injunctive relief. The City has established a clear breach of the statutory provision and there are no extenuating circumstances that would outweigh the public interest in having the law obeyed. [ 9 ] The only potential defences that appear to be raised in the case at bar are that the unauthorized work has existed for some time and that it will cost money to remove it.

Neither of these, however, is a viable defence to the relief sought in this case, and I would have particular reference in that regard to the decision of the Court of Appeal in the City of Burnaby v. Pocrnic (1999), 1999 BCCA 652 (CanLII) , 71 B.C.L.R. (3d) 211 . [ 10 ] Because of the public interest in having the law obeyed, generally in cases where a public authority seeks statutory injunctive relief to prevent the continued contravention of the law, the relief will be granted in the absence of extraordinary circumstances being shown.

Here I would have reference, in particular, to the decision of Justice Lowry in the City of Vancouver v. Maurice which is found at 2002 BCSC 1421 (CanLII) , 2002 B.C.S.C. 1421. [ 11 ] Having reviewed the circumstances, I am satisfied that there are no exceptional circumstances shown in this case that would constitute a defence to the relief sought.

Further, that it is no defence in the circumstances for the defendant to say that there are other people in Vancouver who have non-compliant buildings. [ 12 ] Accordingly, in the circumstances I am satisfied that the plaintiff is entitled to the relief that it has sought, and grant the orders sought in the form that they were sought by the plaintiff. In addition, the plaintiff will have its costs. “C. Ross, J.” The Honourable Madam Justice C. Ross