City of Surrey v. Housewise Construction et al. Date:, 2017 BCPC 266

Citation: City of Surrey v. Housewise Construction et al. Date: 20170407 2017 BCPC 266 File No: S74271, 78258 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: CITY OF SURREY CLAIMANT AND: HOUSEWISE CONSTRUCTION LTD. HOUSEWISE CONSTRUCTION LTD. dba SEGAL DISPOSAL WING YUEN AU JOHN DOE DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.S. GILL

Counsel for the Claimant: B. Lee, W. Aujla Appearing for the Defendants: Wing Yuen Au Place of Hearing: Surrey , B.C. Dates of Hearing: December 7, 8, 9, 2016 Date of Judgment: April 7, 2017 [ 1 ] The plaintiff, City of Surrey (“the City”), claims against the defendants, Housewise Construction Ltd., Housewise Construction doing business as Segal Disposal, and Wing Yuen Au, also known as Samuel Au. The claim also named John Doe, an unidentified person whose name and address is unknown to the plaintiff. [ 2 ] The defendant, Mr.

Au, is the sole officer and director of the defendant, Housewise Construction Ltd. (“Housewise”). The corporate defendant carries on the business of waste disposal and sorting, operating under a proprietorship doing business as Segal Disposal. The waste disposal business is carried on at a property owned by Housewise (“the Housewise property”) and located at 12393 Industrial Road, Surrey. [ 3 ] The plaintiff owns property in the form of a dedicated road allowance (“the City property”).

The City property is located immediately adjacent and on the east side of the Housewise property. [ 4 ] The claim by the plaintiff alleges that the defendants caused damage to physical barriers placed by Surrey along the boundary between the two properties, deposited refuse on the city property, and polluted a stream located at the north of their respective properties, all of which resulted in the plaintiff incurring various costs and expenses to redress, as a result of which the City also claims damages. [ 5 ] The claim is framed in two actions, heard at the same time.

Action 74271 alleges harm incurred on or about July 17, 2011 and claiming $6,875.13 in property damage and $18,124.87 in punitive/aggravated and general damages. [ 6 ] Action 78258 alleges harm incurred on or about July 16, 2013 and claiming $25,000.00 for property damage and clean up, abandoning any amount in excess of the court’s statutory limit. [ 7 ] The defendants were represented by their sole representative, Samuel Au, also appearing on his own behalf. Mr.

Au denied the defendants causing harm as alleged, and suggested the city to be singling them out unfairly and in a biased manner. [ 8 ] The Housewise property fronts onto Industrial Road, which runs roughly east-west. [ 9 ] The City property, in the form of a registered but unused road allowance, also fronts onto Industrial Road and is located adjacent and immediately to the east of the defendant’s property. [ 10 ] There is a waterway at the rear (north end) of all of the properties and flowing in an easterly direction.

At the back of the Housewise property this waterway, at least in part, flows through a culvert, emerging on the east side of the property and it then continues along the City property before branching out and terminating a short distance further. [ 11 ] Housewise uses its property to truck in various types of debris, sort it on the property, and then take it away to various destinations for recycling or ultimate disposal.

That debris is trucked by Housewise trucks, operating under the aforementioned proprietorship, Segal Disposal, or by third parties contracting with the defendant. [ 12 ] The claimant called a number of witnesses to support the factual basis for its claims. [ 13 ] Surrey by-law enforcement officer Andrew Singh testified that on October 25, 2010, he attended the Housewise property on Industrial Road, prompted by reports received of debris spotted in the watercourse where it passed along the Housewise and City properties, as well as reports of such debris on the City’s property itself. [ 14 ] Officer Singh testified he saw Mr.

Au and asked him if he was responsible for the debris, which Mr. Au denied. Officer Singh noted the debris was of the same type as that which was also contained and being sorted on the Housewise property. [ 15 ] On February 10, 2011, Officer Singh again attended the Housewise property. He testified that on this attendance he asked Mr. Au to move his trucks and garbage bins that were encroaching onto the City property. He also provided Mr. Au with an aerial map depicting the lot line separating the two properties so that Mr.

Au would have a better idea of where the Housewise property ended and the City property began. [ 16 ] A Warning Notice (filed at Tab A23), dated February 16, 2011 was subsequently delivered by Officer Singh and left at the Housewise property. Officer Singh could not recall whether he left this Notice directly with Mr. Au, or with another person on the property, or whether he simply left it at the property.

The Notice demanded that Housewise (actually its operational business, Segal Disposal) remove its vehicles and bins from the City property and that Segal Disposal not put anything further on the City property. [ 17 ] A letter dated February 22, 2011 was sent to the defendants, Mr. Au and Segal Disposal, itemizing the debris infractions, and advising that barriers would be installed between the two properties to prevent any further unauthorized access, parking of vehicles and debris overflowing onto the City property.

The letter also required the defendants to provide a plan to remediate the existing pollution and notifying them that the City would otherwise attend to same and seek repayment.

[ 18 ] On August 12, 2011, Officer Singh again attended the property, observing significant quantities of debris deposited on the City property including bags that looked just like bags also then seen and being sorted on the Housewise property. He spoke with a man on the Housewise property identifying himself as Mr. Ma, the Segal Disposal office manager. Mr. Ma said the debris had been placed on the City property only temporarily while it was being sorted.

Officer Singh at that time issued a ticket for unlawful dumping, in response to which he saw the immediate commencement of debris removal from the City property. [ 19 ] The debris itself can be seen in photos filed at Tab B35 and includes numerous sandbags of rocky soil which Officer Singh testified he saw not only that day but during previous visits.

This debris overflowed from the Housewise property onto the City property as well as into the watercourse. [ 20 ] The City says that the “no post” cement barriers installed along its side of the boundary between the two properties were subsequently damaged by the defendant’s business operations. Specifically it is alleged that the cement barriers were physically moved by persons from the Housewise property onto the City property in a way that created more operational space on the Housewise property.

It is also alleged, a number of the barriers were physically damaged in the process. [ 21 ] Another occupier of property on Industrial Road, Mr. Mohammed Zkeer, testified that on July 17, 2011, he was passing by the Housewise property and saw a person that looked like Mr.

Au using a small bobcat on the Housewise property pushing the City’s cement blocks away from the property line and further back onto the City property. [ 22 ] Photos taken on September 13, 2011, and filed at Tab A4, show a number of the “no-post” cement blocks cracked, tipped over and misaligned, and pushed further towards and onto the City property.

Some of the photos show clear tire track marks, on the side facing the Housewise property, which would be entirely consistent with trucks bringing waste disposal products at the Housewise property having bumped into and/or dislodged the said blocks. [ 23 ] As a result of the extensive damage, the City removed the “no-post” barriers and installed heavier cement “lock-block” barriers. [ 24 ] On November 4, 2011 and April 18, 2012, demand letters (Tab A15 and A16) were sent to the defendants seeking recovery of the aforementioned costs.

Housewise did not respond in any fashion. [ 25 ] The City alleges that despite the aforementioned attendances, warnings, remediation and repayment demands, the Defendants continued to allow the depositing of debris onto the City property. [ 26 ] Officer Singh again attended the site on July 9, 2013 and saw garbage bags filled with soil, and other debris located on the Housewise property and overflowing onto the City property.

He also noted the new cement lock-blocks were now again misaligned. [ 27 ] Photos taken at the site on July 9, 2013 (Tab A9) show refuse piled on the lock-blocks and overflowing from the Housewise property onto the City property. Some of the lock-blocks have again been dislodged from their initial position and bumped further over onto the City property.

Such overflow is also visible in the photos showing the rear (north) end of the properties, including into and around the watercourse. [ 28 ] Additional photos taken on July 16, 2013 (Tab A10) depict a variety of debris appearing to consist of soil, gyproc or other boards, cut piping, rocks, paper and other construction related waste overflowing from the Housewise property onto the City property and littering the watercourse.

There is a bobcat at the rear of the Housewise property. [ 29 ] Photos taken on August 26, 2013 (Tab A14) further depict the large quantities of aforementioned litter overflowing from the Housewise property onto the City property and into and around the watercourse. [ 30 ] Throughout his various attendances at the properties, Mr. Singh testified that he would often see Mr. Au on the Housewise property and speak with him. He also saw Mr. Au often driving trucks on the said property. [ 31 ] A large clean-up and remediation operation was undertaken by the City between the dates of August 28 to September 6, 2013.

The City called various witnesses who described the work in detail which involved attendance by various City employees to gather the waste and haul it away. [ 32 ] The City also called other witnesses who also attended the site and observed the damage. [ 33 ] Lauralane Saxton is the acting supervisor of by-law enforcement, having prior experience with the City as a by-law enforcement officer as well as in the environmental engineering department, and dealing with matters involving watercourse protection and soil erosion. Ms.

Saxton personally saw the misaligned lock-blocks and the debris on the site overflowing from the Housewise property onto the City property and then into the watercourse and riparian area, confirming the accuracy of the photos depicting same and also taking additional photos of her own. [ 34 ] A letter from the City dated April 22, 2014 to the defendants demanded repayment of the costs incurred to date. [ 35 ] Mr. Au testified that he was being unfairly picked on.

He suggested in cross-examination to Officer Singh that the City was biased against him, which the officer denied. [ 36 ] In response to the method of conduct of the Housewise business, and in response to related complaints received by the City regarding the unsightly upkeep and appearance of the Housewise property, Officer Singh issued a total of 3 tickets. The first ticket was issued in 2010 for operating without a business license, the second in August 2011 for unlawful dumping onto the City property and watercourse, and the third for unsightly maintenance of the Housewise property.

The ticket issued in August 2011 was contested by Housewise but, after a hearing at Surrey Provincial Court, there was a finding of guilt according to a Record of Proceedings filed at Tab B39. A fine of $1,000 was imposed.

[ 37 ] Mr. Au also pointed out that the City property can be accessed freely from Industrial Road by anyone, and suggested thereby that the debris was not his but rather belonging to someone else. This is contrary to his own evidence whereby he agreed the debris came from the Housewise property. [ 38 ] The witness, Mohammed Zkeer, denied any personal animosity to Mr. Au but agreed he had complained to Surrey of repeated violations involving Mr. Au’s business operations, mostly about illegally parked trucks along the roadway and blocking Mr.

Zkeer’s access to his own property. [ 39 ] Based on the foregoing recitation of the evidence, I conclude the City to have proven on a balance of probabilities that the source of the refuse deposited on its property, as well as in and about the north end of their property and in the watercourse adjacent thereto, came from the operations conducted by Housewise and for which Housewise is responsible.

I also conclude that the damage to the barriers owned and installed by the City along the property line was caused by operations conducted by Housewise. [ 40 ] I will address later in these reasons the question of the City’s entitlement to the other heads of damage claimed, as well as whether or to what extent the defendant, Mr. Au, is responsible in his personal capacity for any of the Housewise liability.

Damages [ 41 ] The out of pocket loss sustained by the City relates to damage incurred to the barriers installed along the property line, costs to clean up and remove the refuse, and the related costs for labour and equipment. [ 42 ] As noted earlier in these reasons the first claim, Action No. 74271 alleges harm incurred on or about July 17, 2011 and claiming $6,875.13 in property damage and $18,124.87 in punitive/aggravated and general damages as set out in the Notice of Claim filed, as further amended on March 3, 2016.

In that claim, no allocation is made as between the punitive, aggravated and general damages. [ 43 ] In the City’s written closing argument, dated December 9, 2016, the out of pocket losses are as set out in the Notice of Claim, in the sum of $6,875.13; however, general damages of $15,000, punitive damages of $20,625.39 and special costs of 10 percent of $25,000.00 pursuant to Rule 20(5) are now claimed, latterly on the alleged basis “the Claimant [sic] proceeded through trial with no reasonable basis for success.” There is also a claim for “fees, costs and expenses.” [ 44 ] The second claim, Action No. 78258 alleges harm incurred on or about July 16, 2013 and claiming $25,000.00 for property damage and clean up, abandoning any amount in excess of the court’s statutory limit. [ 45 ] In the City’s closing argument, dated December 9, 2016, the amount sought has been re-defined to actual damages of $20,189.57, general damages of $15,000, punitive damages of $60,568.71 and special costs of 10 percent of $25,000 pursuant to Rule 20(5), again on the same basis as for Action No. 74271.

There is again a claim for fees, costs and expenses. [ 46 ] I will deal firstly with the claim for actual expenses incurred, all of which I find to have been established and directly attributable to the conduct of Housewise as described earlier in these reasons. [ 47 ] In the first Action, Housewise or its agents and employees caused the “no-post” barriers to be so significantly misaligned and dislodged that they were cracked, crumbling and unusable. They had to be subsequently replaced with stronger barriers known as lock- blocks.

After installation of the lock-blocks, Housewise continued to deposit refuse onto the City property, often covering the lock- blocks themselves in the process. As a result, the City was required to install a 2 nd tier of lock-blocks that better protected its property from the waste overflow.

The City is fully entitled to recover all costs associated with the purchase and installation of the no-post barriers, the removal of those barriers when damaged by the Housewise operations, and the purchase and installation of all of the lock- block barriers. [ 48 ] In the first Action, the total cost in respect of the foregoing expenditures made by the City is claimed in the sum of $6,875.13. [ 49 ] In the second Action, a large clean-up and remediation operation was also undertaken by the City between the dates of August 28 to September 6, 2013. [ 50 ] I find the evidence overwhelmingly establishes Housewise to be the contributor of the pollution of the City property and the waterway.

The nature of the waste is of the type handled by Housewise and has not been realistically demonstrated to have come from any other source. To conclude otherwise would constitute inappropriate speculation. [ 51 ] The City is entitled to all expenses associated with clean-up of its property and the waterway, including all related labour, equipment, materials cartage and associated fees.

The City called various witnesses who described the work in detail which involved attendance by various City employees to gather the waste and haul it away. [ 52 ] I find the foregoing costs to all have been incurred as a result of the deposit by Housewise of large amounts of refuse on the City property, including at the north end of the property and in and about the watercourse located there, and all of which is clearly depicted in the various photos filed in the proceedings.

I find Housewise liable to the City for those expenses in the sum of $6,875.13 and $20,189.57 for the first Action and the second Action, respectively. [ 53 ] The City claims general and punitive/aggravated damages. The City founds all of its various claims in the two actions in negligence, trespass to land, trespass to chattels, private nuisance, and public nuisance, as well as pursuant to what is known as the rule in Rylands v. Fletcher .

The City also asserts the conduct of Housewise to constitute a breach of covenants registered against the properties in respect of the watercourse at the north end thereof. [ 54 ] The City seeks an award of general damages in the range of $10,000 to $15,000 in each of the two actions.

[ 55 ] It is noteworthy that the trespass and waste deposit activities conducted by Housewise on the City property continued despite many warning notices and letters. [ 56 ] In this regard, I find that the conduct of Housewise constituted a clear and repeated disregard for the boundary line between its property and the City property, using the City property to park its vehicles and place its containers, and allowing its waste products to spill over and trespassing upon the latter, and using it essentially as an overflow yard to aid in its sorting operations.

This was despite repeated notices and warnings given by the City to Housewise, all of which failed to prevent a continuation of the activity and eventually requiring the City to take sterner measures to protect its interests. [ 57 ] To the extent that Housewise caused or contributed to the pollution of the watercourse, I find it did so in breach of the statutory right-of-way owned by the City and registered against the title to the Housewise property.

A specific term of that right-of-way subjects Housewise to not “…in any way injure, damage or affect the works…” [ 58 ] Having regard to all of the foregoing, I fix the general damages in the sum of $5,000.00 in the first action and $5,000.00 in the second action. I fix punitive damages in the first action in the additional sum of $2,500.00. No punitive damages are awarded in the second action as no such claim was pleaded. [ 59 ] The City seeks judgment against Mr. Au personally for the loss and damage caused by Housewise. The City bases this claim on the fact that Mr.

Au was, at all times relevant to these proceedings, not only the sole director of Housewise, but is alleged to have been directly involved in its wrongful conduct. [ 60 ] I find these arguments unpersuasive and insufficient to pierce the corporate veil. There is no evidence that Mr. Au ever represented himself in his personal capacity in his dealings with the City by word, deed or contract, nor did he ever hold out the conduct of any of the Housewise operations to be in his personal capacity. The claim against Mr.

Au personally is therefore dismissed. [ 61 ] The judgement in the second Action will be limited to $25,000 in view of the monetary jurisdictional limit of the court at the time of filing the claim. [ 62 ] I decline to order any amount pursuant to Rule 20(5) on the basis that Mr. Au did raise issues including those relating to identification which, although rejected, cannot be said to have had no reasonable prospect of success. [ 63 ] The City is entitled to all reasonable costs associated with filing and service of process. The Honourable Judge G.S. Gill Provincial Court of British Columbia