IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120119

Docket: S132319

Registry:
New Westminster

Between:

Edward Chase

Plaintiff

And

The Municipality
of Surrey

The Greater
Vancouver Regional District

The British
Columbia Society for the Prevention of Cruelty to Animals

Defendants

Before:
The Honourable Madam Justice E.A. Arnold-Bailey

Reasons for Judgment

Introduction

[1]            
This is an application by the Municipality of Surrey (“Surrey”) to
dismiss the claims of Mr. Chase for theft, malicious prosecution, harassment,
abuse of power (by which I assume he means the tort of abuse of process), and an
alleged breach of Mr. Chase’s section 2(b) Charter rights with respect
to his right to freedom of expression.

[2]            
Mr. Chase has been in conflict with municipal authorities for some time.
The difficulties appear to have begun when he was evicted from his
apartment. Thereafter, for at least some of the time in late 2007 and early
2008, he lived, or at least stayed past closing time, at Tynehead Regional Park
in Surrey. Mr. Chase also spent the winter of 2007 in his vehicle in the
parking lot of Parkland Fellowship Baptist Church, located near 96^th
Avenue and 160^th Street in Surrey (the “intersection”).

[3]            
The staff at Tynehead Regional Park retained a fencing company in order
to keep Mr. Chase out. In February 2008 the fence was built and R.C.M.P. officers
were present to keep order. Mr. Chase then resided in his vehicle at the Parkland Church.
He was asked to leave by the pastor when the pastor was informed by a bylaw
enforcement officer that Mr. Chase’s presence contravened a Surrey zoning
bylaw. Mr. Chase left voluntarily. He then sold his car as scrap metal and began
living in a small tent near the intersection on what Mr. Chase claims is Church
property (and which Surrey states is public property). This occurred in or
around May 2008.

[4]            
His stay was contentious. Affidavit evidence of municipal employees indicates
some residents supported him and provided him food and tents, whereas others
wished him to be removed. Various municipal employees asked him to leave. He erected
several signs critical of Surrey, the Society for the Prevention of Cruelty to
Animals (the “SPCA”), and other parties. There is affidavit evidence from a
police officer indicating these signs distracted a driver, causing a car
accident with the police officer.

[5]            
Mr. Chase has suffered various setbacks at the intersection. He states his
possessions were taken multiple times by municipal employees. The affidavit
evidence of the employees is that much of it was unsightly garbage, which was
removed after Mr. Chase was provided notice. Mr. Chase’s unsworn evidence is
that his legal documents were thrown away by municipal employees. The employees
disagree. Mr. Chase also states he was assaulted by a block watch member on
June 25, 2008 and that one of his two dogs, called “Raymond”, came to his
defence and was punched in the face.

[6]            
Further, it is common ground that on July 3, 2008, Raymond was taken
away by the Surrey SPCA. Mr. Chase states this was because Raymond was not
wearing a muzzle. The SPCA states the reason was that Raymond was “running at
large” as defined in the City of Surrey, By-law No. 13880, Dog
Responsibility Bylaw (1999). In November of 2009 Surrey unsuccessfully
sought an order to destroy Raymond in the Provincial Court of B.C., which
perhaps explains some of the acrimony in these proceedings. Raymond was
returned to Mr. Chase on December 22, 2009, more than a year after his seizure.

[7]            
In an order dated August 18, 2008, Mr. Justice Davies found Mr. Chase
had breached the City of Surrey, By-law No. 13007, Highway and Traffic
By-law (1997) (the “Highway By-law”) by placing chattels on a highway and
depositing, throwing or leaving refuse, debris or other things on a highway. He
also found Mr. Chase to have breached s. 46 of the Community Charter, S.B.C.
2003, c. 26 by causing a nuisance on, obstructing and fouling part of a highway
or other public place.

[8]            
In the order of August 18, 2008 of Mr. Justice Davies, Mr. Chase was
prohibited from (1) placing chattels on a highway in the City of Surrey; (2)
depositing, throwing or leaving refuse, debris or other things on a highway in
the City of Surrey; and (3) causing a nuisance on, obstructing or fouling part
of a highway or public place in the City of Surrey.

[9]            
Mr. Chase states he could not leave his dogs to attend the hearing leading
to the order and that in any case his presence would have been futile, given
that his legal materials had been thrown away by municipal workers.

[10]        
Mr. Chase now lives in another vehicle, his truck, near the
intersection.

[11]        
The action against the Greater Vancouver Regional District (the “GVRD”)
was dismissed in an order by Mr. Justice Smith on April 7, 2011. The action
against the SPCA was dismissed by consent before me on November 28, 2011. It is
against this backdrop that Surrey brings this application to dismiss Mr.
Chase’s claims against it.

Position of the Respondent Mr. Chase

[12]        
Mr. Chase commenced an action against Surrey, the GVRD, and the SPCA on
January 21, 2011. The notice of claim pleads several facts, which include the
following: the GVRD illegally evicted him from Tynehead Park; Surrey stole his
possessions, including his signs and harassed him; Surrey forced the Church to ask
Mr. Chase to move; the Surrey SPCA illegally seized his dog Raymond; Surrey
applied for Raymond’s destruction; and the affidavits of Surrey and the GVRD,
used to obtain the order of Mr. Justice Davies, contain lies.

[13]        
These facts are pleaded to support claims against Surrey for theft,
breach of Mr. Chase’s s. 2(b) Charter rights, malicious prosecution, harassment,
and abuse of process.

[14]        
Mr. Chase has not filed a response to the present application by Surrey to
dismiss this action.

Position of the Applicant Surrey

[15]        
Surrey seeks an order to dismiss Mr. Chase’s claim and advances five
grounds to dispose of all or some of his claim. First, Mr. Chase’s cause of
action is statute barred by s. 286(1) of the Local Government Act, R.S.B.C.
1996, c. 323, which provides that a municipality is in no case liable for
damages unless notice in writing is delivered to the municipality within two
months from the date on which the damage was sustained.

[16]        
Second, Mr. Chase’s claim relates to events that occurred outside the six month
limitation period prescribed by s. 285 of the Local Government Act and
is thus again statute barred.

[17]        
Third, Mr. Chase’s claim raises issues substantively dealt with by
Davies J. and should be dismissed due to issue estoppel.

[18]        
Fourth, Mr. Chase advances an argument relating to the Charter and
no notice was provided pursuant to the requirements of the Constitutional
Question Act, R.S.B.C. 1996, c. 68.

[19]        
Finally, Mr. Chase alleges malicious prosecution. Surrey claims this
tort may not be available for civil matters. Alternatively, Surrey argues it is
improperly pleaded.

The Limitation Defences

[20]        
Notice to a municipality within two months of a claim is required by
virtue of s. 286 of the Local Government Act, which states
in part as follows:

Immunity unless notice given to municipality after damage

286  (1) A municipality is in no case liable for damages
unless notice in writing, setting out the time, place and manner in which the
damage has been sustained, is delivered to the municipality within 2 months
from the date on which the damage was sustained.

…

(3) Failure to give the notice or its insufficiency is not a
bar to the maintenance of an action if the court before whom it is tried, or,
in case of appeal, the Court of Appeal, believes

(a) there was reasonable excuse,
and

(b) the defendant has not been prejudiced in its defence by
the failure or insufficiency.

[21]        
It appears that notice of claim by Mr. Chase was received by Surrey on
February 22, 2010. In contrast, his notice of claim was filed with the Court on
January 12, 2011. Mr. Chase states the date on which he sustained damage was
the date of the release of the Provincial Court decision on December 17, 2009,
regarding the application for destruction of his dog Raymond. From his oral
submissions I gather he believes the limitation period under s. 286 is six
months, rather than two. When one uses the December 17, 2009 date, Mr. Chase states
he is within the time limit for notice to Surrey (when he actually is not). I
surmise he believes December 17, 2009 is the correct date to use because that
decision is the last event in what he would characterize as, among other
things, continuing harassment and abuse of process by Surrey.

[22]        
The SPCA stated in previous proceedings that Raymond was released into
Mr. Chase’s care on December 22, 2009 (though Mr. Chase in oral proceedings gives
a date of December 21, 2009). It is not clear to me if Mr. Chase appreciated
that the return of Raymond and the release of the Provincial Court decision
were on different dates. Although it was not argued before me, using this date would
place Mr. Chase within the limitation period of two months.

[23]        
However, the date of the decision in Provincial Court and the return of
Raymond are not events that would give rise to a cause of action. It appears
the bulk of Mr. Chase’s allegations stem from the events of July 2008 at the
latest, and relate squarely to Surrey’s attempts to enforce its bylaws.
Therefore, it cannot be said that Mr. Chase provided notice to Surrey of his
claim within two months of when the damage he alleges was sustained, as
required by s. 286(1).

[24]        
I note that I did not receive any argument as to whether Mr. Chase had a
“reasonable excuse” under paragraph (a) to remove this bar to his action.
Similarly I was given no information as to the prejudice Surrey might suffer.

[25]        
However, I find it sufficient to consider the timeliness of Mr. Chase’s
action within the time limit for such actions imposed by s. 285 of the Local
Government Act, which states:

Limitation period for actions against municipality

285  All actions against a municipality for the unlawful
doing of anything that

(a) is purported to have been done
by the municipality under the powers conferred by an Act, and

(b) might have been lawfully done
by the municipality if acting in the manner established by law,

must be commenced within 6 months
after the cause of action first arose, or within a further period designated by
the council in a particular case, but not afterwards.

[26]        
Mr. Chase commenced his action by filing his notice of claim with the Court
on January 12, 2011. This is well after notice of his claim was given to
Surrey. Even if one were to assume December 22, 2009 was the date when the
cause of action first arose, he is well outside the limitation period of six
months imposed by s. 285. Therefore, if s. 285 is applicable, Mr. Chase’s
cause of action is statute barred.

[27]        
The leading authority with respect to s. 285 is Gringmuth v. North
Vancouver (District), 2002 BCCA 61, which adopts the reasoning of Pausche
v. British Columbia Hydro et al., 2000 BCSC 1556. The key question is “whether,
if the municipality had complied with the existing statute law when it
(allegedly) caused injury to the plaintiff, it could have done that harm
lawfully – i.e., in accordance with the statute” (para. 30 of Gringmuth).

[28]        
The affidavit evidence before me indicates that Surrey acted pursuant to
the Local Government Act and the Community Charter. Counsel for
Surrey also referred to the following by-laws as justification for the actions
of the municipal employees:

a)    City of Surrey, By-law
No. 3052, Surrey Sanitation By-law (1969);

b)    City of Surrey,
By-law No. 3495, Regulation of Garbage Disposal By-law (1971);

c)     Highway
By-law;

d)    City of Surrey,
By-law No. 12883, Prohibition of Nuisances By-law (1996); and

e)    City of Surrey,
By-law No. 13656, Surrey Sign By-law (1999).

[29]        
The present case is similar to the example given in Pausche at
paras. 65 to 70:

[65] I would illustrate the proper application of the section
by suggesting a case where the municipality purports to enact a bylaw under the
Local Government Act expropriating land for a municipal purpose.

[66] The municipality purports to comply with the various
statutory requirements and then enters the land and destroys the home on it in
preparation for the municipal project.

[67] It transpires that the municipality has not properly
complied with the statutory prerequisites to a valid expropriation. (There are
a number under the Act, the details are not important.)

[68] The expropriation bylaw is successfully attacked by the
landowner and it is declared void.

[69] Setting aside considerations of colour of right, the
municipality has in law trespassed and converted the landowner’s property.

[70] The limitation period of six
months, however, properly applies to that cause of action, because if the
municipality had acted in the "manner prescribed by law" in adopting
the expropriation bylaw, what would otherwise have been an unlawful act –
trespass and conversion – might have been lawfully done. [This indeed was
exactly the case in Cameron Investment & Securities Co. and Bailey v.
City of Victoria, [1920] 3 W.W.R. 1043 (B.C.S.C.). See also Timpany v.
Revelstoke (City) (1986), 35 D.L.R. (4th) 729 (C.A.).]

[30]        
The limitation period of six months applies with regards to this action
by Mr. Chase because if Surrey has acted in the “manner prescribed by law”
through its bylaws, what would otherwise have been unlawful acts (in this case,
conversion, harassment, and abuse of process) might have been lawfully done. I
conclude that Surrey did act pursuant to its bylaws. The aforementioned
affidavit evidence of the municipal employees supports this, as does the
finding of Mr. Justice Davies in his order of August 18, 2008, that Mr. Chase
had breached the Highway By-law and s. 46 of the Community
Charter. As a result, the limitation period applies.

[31]        
It is clear that Mr. Chase feels unfairly targeted by Surrey. The reality
is that many of the behaviours of the indigent like Mr. Chase are legislated to
be illegal and Surrey has acted upon those laws.

[32]        
 Accordingly, I find that Mr. Chase’s action against Surrey is dismissed
as it was not commenced within six months after the cause of action first
arose. On the available evidence the cause of action first arose in the summer
of 2008. Even using the December 22, 2009 date when Raymond was released, Mr.
Chase’s action against Surrey was commenced well beyond the time limit of six months.

The Issue Estoppel Defence

[33]        
Although I find it sufficient to dispose of this matter through the
limitations defence, I would also find Mr. Chase’s action is barred through
issue estoppel.

[34]        
The test for issue estoppel has three requirements: (1) that the same
question has been decided; (2) that the judicial decision which is said to
create the estoppel was final; and, (3) that the parties to the judicial
decision or their privies were the same persons as the parties to the
proceedings in which the estoppel is raised (Angle v. M.N.R., [1975] 2
S.C.R. 248 at 254).

[35]        
Even if the requirements are met, this Court has discretion to refuse to
apply estoppel (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at
para. 33).

[36]        
In his order dated August 18, 2008, Mr. Justice Davies found that Mr.
Chase had breached the Highway By-law and section 46 of the Community
Charter. Section 46 states as follows:

Use of highways and public places

46  (1) Except as permitted by bylaw or another enactment, a
person must not excavate in, cause a nuisance on, obstruct, foul or damage any
part of a highway or other public place.

(2) A council may, by bylaw,

(a) authorize the seizure of things
unlawfully occupying a portion of a highway or public place,

(b) establish fees for such seizure
that are payable by the owner of the thing, and

(c) provide for the recovery of
those fees from the owner of the thing, including by sale of the thing if the
owner refuses to pay or cannot be identified after reasonable efforts.

(3) If a thing is seized under
subsection (2), by a municipality, neither the municipality nor a person to
whom the thing is disposed of is liable, in damages or otherwise, for or in
respect of any claim that may arise in respect of the thing after its disposal
in accordance with this Act.

[37]        
The issues resolved by Davies J. centered on the lawfulness of Mr.
Chase’s occupation of the intersection and the presence of his possessions
and/or garbage. The legality of the actions of Surrey, including the removal of
those possessions, accordingly flowed from that determination. Mr. Chase, in
this action, is essentially again asserting that his occupation of the
intersection is lawful. Given that Mr. Chase was found to be acting illegally,
his claims against Surrey for theft, harassment, malicious prosecution, and
abuse of power, have already been rejected. The findings of fact, law, and
mixed fact and law in the previous action are substantially the same determinations
to be made in this action.

[38]        
Therefore, I find that the first requirement of issue estoppel is met. The second
and third requirements are also met.

[39]        
In deciding whether or not to refuse to apply estoppel as a matter of
discretion I appreciate that Mr. Chase states he was unable to attend the hearing
that gave rise to the order of Davies J. I have no doubt his difficulties are
exacerbated by being indigent and taking care of two dogs. However, these
considerations must be balanced against other considerations. The affidavit
material produced by Surrey for the hearing was considerable. Regardless of
whether he had his legal materials, Mr. Chase should have made
arrangements to attend. It is also my understanding that Mr. Chase did not
appeal the resulting order.

[40]        
I do not believe in all the circumstances the application of estoppel
would result in an injustice. Consequently, I would choose not to exercise my
discretion against such a finding.

Malicious Prosecution

[41]        
The preceding is ample reason enough to dismiss Mr. Chase’s claims.
However, I wish to note for his benefit that the tort of malicious prosecution
may not be available to him.

[42]        
Counsel for the Municipality of Surrey drew to my attention the case of Metall
und Rohstoff A.G. v. Donaldson, Lufkin & Jenerette Inc., [1989] 3 All
E.R. 14, where the court states at 51, “Although we have not heard full
argument on this point, we have great doubt whether any general tort of
maliciously instituting civil proceedings exists.”

[43]        
I could find little that supports Mr. Chase. In Reid v. Webster (1966),
59 D.L.R. (2d) 189 (P.E.I.S.C.) the court held that a municipal by-law
prosecution could give rise to malicious prosecution. However, the by-law
provided for imprisonment in default of payment, affected the plaintiff’s
trade, and the publicity created an aura of scandal that caused damage to the
property and business of the plaintiffs. I find it distinguishable from the
circumstances of Mr. Chase.

[44]        
In any case, I find that Mr. Chase has not properly pleaded facts which
would, if proven, satisfy the four necessary elements of malicious prosecution,
as outlined in Nelles v. Ontario, [1989] 2 S.C.R. 170.

[45]        
Based on the foregoing, I would dismiss Mr. Chase’s claims for malicious
prosecution in the absence of the limitation defence or estoppel.

Constitutional Notice

[46]        
To the extent that Mr. Chase seeks to advance any argument that the
actions of Surrey, or the statutes relied upon by it, violate his right to
freedom of expression as contained in s. 2(b) of the Charter, he is
required to provide proper notice. This requirement is contained in s. 8 of the
Constitutional Question Act which states, in part, as follows:

(2) If in a cause, matter or other proceeding

(a) the constitutional validity or
constitutional applicability of any law is challenged, or

(b) an application is made for a
constitutional remedy,

the law must not be held to be
invalid or inapplicable and the remedy must not be granted until after notice
of the challenge or application has been served on the Attorney General of
Canada and the Attorney General of British Columbia in accordance with this
section.

[47]        
Although not explicitly stated, I infer that Mr. Chase would argue, at a
minimum, that the Community Charter and the Highway By-law violate his s. 2(b)
Charter rights. He also refers to the decision of Victoria (City) v.
Adams, 2008 BCSC 1363 which discusses s. 7 Charter rights at
length.

[48]        
A declaration regarding constitutional validity or the necessity of a
constitutional remedy with respect to the impugned laws would have serious
effects beyond their impact on Mr. Chase. Notice to both levels of government
ensures that judicial interpretation of the Constitution, of which the Charter
is a part, is supplied with proper argument. I have no evidence that Mr. Chase
has given the required notice. Consequently, any argument with regard to his Charter
rights cannot proceed.

Conclusion

[49]        
I find that the application on behalf of Surrey is successful and Mr.
Chase’s claim is struck because of the limitation defence raised by Surrey. In
addition, I would dismiss Mr. Chase’s claim based on the defence of issue
estoppel. With respect to the claim for malicious prosecution, in addition
to the foregoing reasons, I find it was not properly pleaded, and I am doubtful
that it is legally available to Mr. Chase. Finally, in addition to the
foregoing reasons, I find any allegations of interference with Mr. Chase’s Charter
rights are not properly before the Court as no notice was given pursuant to the
Constitutional Question Act.

[50]        
In the matter of costs, I note that in Brown v. Black Top Cabs Ltd., [1998]
5 W.W.R. 666 (B.C.C.A.) a five-member division of the Court of Appeal held
that personal circumstances are not to be considered in awarding costs. Similarly,
financial hardship, in and of itself, is not a proper ground upon which to
decline an award of costs. See Robinson v. Lakner, [1998] B.C.J. No.
1047 (C.A.) at paras. 5-6 and also Morris v. John Doe, 2011 BCSC 1053 at
paras. 35-40. Therefore, I award costs to Surrey in the amount of $500 payable
forthwith by Mr. Chase.

“Arnold-Bailey
J.”