Bi et al. v. City of Surrey Date:, 2017 BCPC 386

Citation: Bi et al. v. City of Surrey Date: 20171019 2017 BCPC 386 File Nos: 80547, 80548, 80549, 80550, 81075 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims File Nos. 80548, 80549, 80550, 81075 BETWEEN SHAMIMA BI CLAIMANT AND CITY OF SURREY DEFENDANT AND File No. 80547 BETWEEN MOHAMMED IZAZ CLAIMANT AND CITY OF SURREY DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for Mr. Bi : Self-Represented Counsel for Mr. Izaz : Self-Represented Counsel for City of Surrey : B. Lee Place of Hearing: Surrey , B.C. Dates of Hearing: May 31, September 8, 2017 Date of Judgment: October 19, 2017

INTRODUCTION [ 1 ] Mr. Mohammed Izaz and his wife, Ms. Shamima Bi (“the Claimants”), own rental properties in Surrey, B.C. [ 2 ] The City of Surrey (“the City”) took enforcement action against them in regard to various alleged by-law contraventions, which included the imposition of a number of fees. [ 3 ] The Claimants sought to challenge that action, or otherwise resolve these issues, directly with the City, but were unable to do so.

As a result, the Claimants brought five actions against the City, alleging that the City’s conduct was effectively improper or illegal, causing the Claimants to suffer loss and damage. [ 4 ] This is a pre-trial application brought by the City to dismiss those five claims. [ 5 ] The primary issue is whether this Court has jurisdiction to provide the remedies sought by the Claimants. BACKGROUND [ 6 ] Ms. Bi owns two properties, and Mr. Izaz owns one, all in Surrey, and described by them as rental properties.

Those properties came to the attention of the City as a result of complaints by members of the public in regard to their poor condition and maintenance, as well as the number and conduct of the occupants.

There was also a fire at one of the properties, which brought the attention of the City’s Fire Department. [ 7 ] The City investigated, including attendance on the properties, and made its own determination that there were contraventions of certain by-laws. [ 8 ] The City then took certain remedial action, as well as imposed a number of fees for services, fees for cost recovery, and administrative fees, and relies upon various by-laws and other legislation in support of all of its actions. (“By-Law Enforcement”) [ 9 ] The non-payment of those fees has resulted in the attachment of those amounts to the property tax accounts of the respective properties.

THE CLAIMS [ 10 ] In order to address the City’s application for dismissal, it is essential to understand the nature of the claims being made by the Claimants. Since the Claimants were self-represented at the time of the filing of these actions, as well as at the time of this application, I have reviewed both the pleadings and other documentary evidence, as well as the submissions, in order to determine the nature of the claims.

(1) Action 80547 [ 11 ] Action 80547 was filed by Mr. Izaz as the owner of property at 14155-110 Avenue in Surrey (“110 th Avenue”).

The claim was filed on August 29, 2016, and alleges that from June 2014 to October 2015, the City imposed “parking tickets”, “fire violation tickets”, “nuisance abatement invoices”, and “false invoices”, later attached to his property tax, and seeks $14,092.59 (plus interest) for “money illegally collected.” [ 12 ] The claim seeks a further $10,000.00 in damages for loss of “income from property.” [ 13 ] The claim also alleges that the City representative “would continually harass” them, that the City banned Mr.

Izaz’s family from using City facilities, and that an RCMP member pressured them to remove their tenants by imposing “driving tickets.”

(2) Action 80548 [ 14 ] Action 80548 was filed by Ms. Bi on August 29, 2016 as the owner of property at 11409-142 Street in Surrey (“142 nd Street”). The claim alleges that the City was negligent (and without authority) when it came on the property on September 30, 2014 with a backhoe and destroyed or damaged building materials (and a sofa), valued at $20,000.00, as well as damaged plants and landscaping, valued at $15,000.00. [ 15 ] The claim includes rental loss of $3,000.00. [ 16 ] The amount over $25,000.00 is waived.

(3) Action 80549 [ 17 ] Action 80549 was also filed by Ms. Bi on August 29, 2016 as the owner of a property at 13901 Hansen Road (“Hansen Road”). The claim alleges that from June 2014 to February 12, 2016, the City issued “parking tickets”, “false nuisance abatement fees”, and thereby claims for “money illegally obtained” in the amount of $12,077.68 (plus interest). [ 18 ] The claim also seeks “damages [for] loss of rental income and bailiff costs” in the amount of $12,000.00.

(4) Action 80550 [ 19 ] Action 80550 was also filed on August 29, 2016 by Ms. Bi in relation to 142 nd Street. The claim alleges that from June 2014 to February 2016, the City sent “fire safety violation tickets” and issued “invoices”, and seeks the “money illegally collected” totalling $25,103.00.

(5) Action 81075 [20] Action 81075 was filed on January 17, 2017 by Ms. Bi in relation to Hansen Road. That claim alleges that the City’s FireDepartment were without authority when they boarded up the property on July 28, 2016, as well as fenced that same property onSeptember 12, 2016. The claim seeks the cost of that boarding up and fencing totalling $5,388.80, which was imposed on Ms. Bi. [21] The claim also seeks the loss of rental income for 5 months for a total of $21,250.00. WHAT IS THE NATURE OF THE CLAIMS? [22] In

summary, all of the claims allege that the By-Law Enforcement by the City was improper or illegal, and effectively seeksreversal or recovery of the fees. Claim 85048 also seeks damages for negligence. [23] In addition, these claims seek recovery of alleged loss of rental income, arising out of that same By-Law Enforcement. [24] Although the claims also allege certain facts, such as racial or religious persecution, or harassing conduct, those are not the basisfor the remedies or damages being sought by the Claimants.

I would also note that this Court is without jurisdiction to deal with thoseissues, as they relate to matters under the Human Rights Code R.S.B.C. 1996, c. 210 (Cohen v. Wilder, [1996] B.C.J. No. 856 (Prov.Ct)). Further, to the extent that one of the claims alleges wrongdoing by a member of the RCMP, they are not a named party in any ofthe claims.

THE POSITION OF THE APPLICANT [25] The City submits that these Claims should be dismissed, among other reasons, because this Court has no jurisdiction to issue aninjunction or make a declaratory order, which they say is what is being sought by the Claimants. [26] The City also submits that the Claimants, in all but one claim, were out of time in either providing notice to the City, or in filingtheir claims, or both. THE LAW ON JURISDICTION Injunctions and Declaratory Orders [27] The law on jurisdiction in relation to Small Claims actions in the Provincial Court of B.C. starts with s. 3 of the Small ClaimsAct: 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 interests and costs. [28] The authorities are clear that this Court does not have jurisdiction to issue either an injunction or make a declaratory order (Mortv. Le, [2016] B.C.J. No. 2052 (Prov. Ct.), (“Mort”); and, Dalla Rosa v. Township of Ladysmith, 2017 BCPC 178 (“Dalla Rosa”)). [29] As to what is meant by an injunction or a declaratory order, in Corner v. Strata Plan KAS833, [2014] B.C.J.

No. 2367(“Corner”), Frame J. examined an action by a claimant that was seeking return of fees levied in relation to what they allege was anunlawful by-law imposed by a strata corporation. Although the claimants argued they were only seeking return of money paid for thefees as damages, Frame J. concluded that “does not make it a debt claim or any other contractual claim” and the court had nojurisdiction to hear it. [30] And in Khani-Hanjani v. Surrey (City), 2012 BCPC 346 (“Khani”), the claimant sought a reversal of fees imposed pursuant to acity by-law.

Hicks J. found that: 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 orinjunction and those forms of relief are not available in this Court. [31] Finally, this Court also does not have authority to grant damages in lieu of an injunction or a declaratory order. Simply claimingfor damages as an alternative remedy, or otherwise, will not change the nature of the remedy being sought or provide jurisdiction to thisCourt, if the remedy is actually that of an injunction or a declaratory order (Hill v. Vernon (City), [1987] B.C.J.

No. 2135 and Mort). Claims in Negligence [32] As pointed out by Frame J. in Corner, where the claim is in negligence, it is not exclusively within the jurisdiction of theSupreme Court, and this Court also has jurisdiction (Valana v. Law et al., 2005 BCPC 587 , 2005 B.C.P.C. 587). Frame J.concludes in regard to the facts in Corner that: …if a claim for damages resulting from a failure of a strata corporation to perform its duties to maintain and repair common property is

made, this court has jurisdiction to hear that claim. ANALYSIS By-Law Enforcement Illegal and Return of Fees [ 33 ] Like in Corner , Mort , Khani and Dalla Rosa , I conclude that, to the extent that the claims in this case seek to have this Court declare the By-Law Enforcement illegal, and to reverse the imposition of the fees, they are indeed seeking injunctive or declaratory relief. The claims would require an examination of the legality of the by-laws and the exercise of authority pursuant to those same by- laws, and a declaration that the fees were wrongfully imposed and are to be returned.

These are not claims in debt or a breach of contract, and seeking “damages” in the claim does not change that. [ 34 ] Therefore I conclude that this Court has no jurisdiction with respect to those claims and those remedies.

Loss of Rental Income [ 35 ] The claims also seek a loss of rental income as a result of the alleged unlawful By-Law Enforcement. [ 36 ] In Mort, the court was being asked to award damages for loss of value in lieu of the injunctive or declaratory relief, which the court refused to do, since there was no jurisdiction to make the injunctive or declaratory order. [ 37 ] In this case, the claims allege that the damages of rental loss flow from the unlawful By-Law Enforcement. However, I fail to see any difference in the nature of the remedy being sought.

This Court will still be required to examine the legality of the By-Law Enforcement and to make a declaratory finding before considering the possible damages. [ 38 ] Therefore, with respect to the claim for loss of rental income, I also conclude that this Court has no jurisdiction. Claim in Negligence [ 39 ] The only claim that is in negligence is 80548, in that it is alleged that the City in carrying out the By-Law Enforcement on September 30, 2014, was negligent and caused damage to Ms. Bi’s 142 nd Street property and caused her other loss.

Although the written notice to the City was less clear as to the basis for the claim in negligence, I find that it sufficiently identified that cause of action. [ 40 ] As earlier stated, this Court has jurisdiction to consider actions in negligence, which may include, in this case, the loss of rental income being claimed as possible damages. To be clear, this Court may consider whether the City was negligent in regard to the manner of the clean-up and whether Ms.

Bi suffered any damage, when the City attended at the site on September 30, 2014, but not whether the City had authority under the by-laws to attend and carry out that clean-up. The City is, of course, still open to argue all defenses relevant to the claim, including that it owed no duty of care, met a reasonable standard of care, or that Ms. Bi suffered no damage. Those are matters for trial. [ 41 ] As for any time limit issues, the evidence clearly showed, and I find, that the City was provided with written notice on October 16, 2014, within 60 days, and in the manner required by statute.

I similarly find that the evidence establishes that the claim was filed within the 2 years required for an action in negligence, that being August 29, 2016. CONCLUSION [ 42 ] I dismiss Claims 80547, 80549, 80550, and 81075 for want of jurisdiction in this Court. [ 43 ] I reject the application to dismiss Claim 80548 and refer the parties to the Judicial Case Manager for the purpose of setting a date for hearing. [ 44 ] Since there is mixed success, I make no order as to costs in this application. The Honourable Judge D. Sudeyko Provincial Court of British Columbia