Failure to remove building results in contempt order

Posted by Johannes Schenk on May 12th, 2016 — Posted in Litigation, Municipal Law

2016 BCCA 201 Langford (City) v. dos Reis concerns a failure to abide by a Court of Appeal issued order to remove a building. The refusal to abide by the order resulted in a contempt finding.

On intention to breach the order the Court had this to say:

[24] It is not controversial that the first two elements of civil contempt are satisfied: the order is clear and the respondent was fully aware of it. The real issue in this case is the third element: intent. The respondent’s position is simply that her mind was on saving the building, not on breaching the order. That is not a valid defence to civil contempt. I refer again to Carey v. Laiken:

[38] It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25; Sharpe [Robert J. Sharpe, Injunctions and Specific Performance, 2d ed. (Aurora, Ont.: Canada Law Book, 1992) (loose-leaf updated November 2014, release 23)], at para. 6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” (2013 ONCA 530, at para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard; and Sharpe, at para. 6.200.

[25] There cannot be the slightest doubt that the respondent intentionally omitted to remove the building. I find that the third element of civil contempt has been made out.

Injunction: stay granted against a local authority

Posted by Johannes Schenk on April 19th, 2016 — Posted in Litigation, Municipal Law

2016 BCCA 160 Cowichan Valley Regional District v. Cobble Hill Holdings concerns injunction stays.

The outcome in this case appears to buck a developing trend in which the Courts defer to local government discretion.

The injunction was granted by the lower court to prevent movement of contaminated soil. The Court of appeal granted the stay on the basis that the injunction could cause severe financial hardship to the appellant resulting in an orphaned contamination site.

Charter Does Not Apply to University Outdoor Spaces

Posted by Johannes Schenk on April 19th, 2016 — Posted in Human Rights Law, Municipal Law

2016 BCCA 162 BC Civil Liberties Association v. University of Victoria concerns the application of the Canadian Charter of Right and Freedoms to pseudo-governmental decision making. In this case the BC Court of Appeal has said that the control of outdoor university space is not governed by charter considerations. The decision concerning the use of outdoor space was not governmental in nature and as such was not subject to the charter.

Courthouse Camping

Posted by Johannes Schenk on April 6th, 2016 — Posted in Litigation, Municipal Law

2016 BCSC 584 British Columbia v. Adamson, concerns the occupation of the Victoria Courthouse grounds. Well, for now it’s okay.

The analysis is based on an RJR tri-partite injunction test. The Court found that there was no irreparable harm and that the balance of convenience was in favour of the encampment.

The Court had this to say on harm:

The fact remains that most of the damages alleged by the plaintiffs have already crystallized. Any further costs or damage that would be occasioned by the ongoing presence of the Encampment would, as I will discuss below, simply take place somewhere else in the City or Victoria if the injunction sought were issued.

And on the balance of convenience:

[183] Ultimately, in determining whether or not to grant an interim injunction at this time, I find that the balance of convenience is overwhelmingly in favour of the defendants, who simply have nowhere to move to, if the injunction were to issue, other than shelters that are incapable of meeting the needs of some of them, or will result in their constant disruption and a perpetuation of a relentless series of daily moves to the streets, doorways, and parks of the City of Victoria.

[184] In addition, many of the homeless cannot access those spaces which do exist for variety of reasons. While the new options provided by the Province address some of the identified barriers, they do not make the spaces available to everyone. Individuals who have high needs, or who have had problematic relationships with the staff at the other shelters run by the agencies administering the new options, will not be able to access these spaces even if they do become available. Many of the current residents of the Encampment have had extremely negative experiences in the current shelter system, where large groups of high needs individuals are crowded together with minimal support, and rigid rules regarding attendance make it difficult to secure or maintain a spot.

[185] Further, I am not satisfied on the evidence before me that many of the problems alleged by the plaintiffs are the unique result of the existence of the Encampment, and are not simply part of the reality of homelessness. If I were to issue the injunction at this point, I am concerned that the problems would simply migrate to other areas in the City of Victoria.

BC analysis for land claims based on adverse possession

Posted by Johannes Schenk on April 5th, 2016 — Posted in Municipal Law

2016 BCCA 113 Mowatt v. British Columbia (Attorney General) is a very interesting case on the matter of an adverse possession land claim involving longstanding historical evidentiary facts.