2019 BCCA 99 Maple Ridge (City) v. Copperthwaite

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Maple Ridge (City) v. Copperthwaite,
	2019 BCCA 99

Date: 20190312

Docket: CA45928

Between:

City of Maple Ridge

Respondent

(Plaintiff)

And

Lois Gayle Tana Copperthwaite, Dwayne Alain Martin

and Eva Dianne Bardonnex

Appellants

(Defendants)

And

Tracy Scott, Jane Doe, John Doe

and Other Unknown Persons

Defendants

And

Her Majesty the Queen in Right of the Province of British Columbia

and the BC Transportation Financing Authority

Respondents

(Third Parties)

Before:

The Honourable Mr. Justice Fitch

(In Chambers)

On appeal from: An order of the Supreme Court of British Columbia, dated
February 8, 2019 (Maple Ridge (City) v. Scott, 2019 BCSC 157,
Vancouver Docket S175088).

Oral Reasons for Judgment

Counsel for the Appellants:	R. Mittal L. Watson
Counsel for the Respondent, City of Maple Ridge:	J.W. Locke J.J. Krusell
Counsel for the Respondents, Her Majesty the Queen in Right of the Province of British Columbia and the BC Transportation Financing Authority:	M.B. Rankin M.N. Weintraub
Place and Date of Hearing:	Vancouver, British Columbia March 8, 2019
Place and Date of Judgment:	Vancouver, British Columbia March 12, 2019

Summary:

The applicants, occupants of an encampment for the homeless on lands owned or licensed by the City of Maple Ridge, seek leave to appeal an interim injunction which authorized the City to enter the encampment and bring the lands into, and maintain them in, compliance with fire safety orders. The order also authorized the City to require occupants to verify their identities by presenting ID or having their picture taken. The applicants say that the chambers judge made several errors, including permitting a collateral attack on a prior consent order that also had fire safety as its objective; including the verification terms in the order; making an order that was vague and ambiguous; and permitting indefinite incarceration of those arrested for violating the order. They also seek orders abridging the time to bring the motion, staying the order of the chambers judge pending the appeal, and admitting new evidence regarding the manner in which the order was enforced. Held: application to abridge time granted; applications for leave to appeal and to admit new evidence dismissed. The proposed appeal raises no issues of significance to the practice. The applicants have not identified any merit in their proposed grounds of appeal, all of which take aim at the terms of a discretionary order. Some of the applicants’ concerns with the wording of the order are more properly the subject of a variation application in the court below. It is unnecessary to consider the other orders sought.

I. Nature of the Application

[1] FITCH J.A.: The applicants, all of whom occupied an encampment for the homeless on lands located in the City of Maple Ridge, B.C. (the “City”), seek leave to appeal an interim injunction order made on February 8, 2019. That order authorized the City to enter the encampment and bring the lands into, and maintain them in, conformity with fire safety orders designed to prevent the destruction of property and potential harm to or loss of human life. In addition, the applicants seek orders abridging the time for bringing this motion, staying the order of the chambers judge pending their appeal, and admitting new evidence relating to the manner in which the terms of the order were carried out on February 22–24, 2019. This new evidence is said by the applicants to be relevant to both the leave and stay applications.

[2] It is common ground that the order sought to be appealed is a “limited appeal order” within the meaning of Rule 2.1 of the Court of Appeal Rules and that leave is therefore required under s. 7 of the Court of Appeal Act, R.S.B.C. 1996, c. 77.

[3] The respondents, the City and Her Majesty the Queen in Right of the Province of British Columbia and the British Columbia Transportation Financing Authority (“BCTFA”), take no position on the application to abridge time and I would make an order, nunc pro tunc, abridging time for the bringing of this motion.

[4] The respondents oppose the application for leave and the stay application should leave be granted. The respondents also seek to adduce new evidence of events that have occurred since the making of the order sought to be appealed. That new evidence relates to fires and related propane tank explosions that occurred in the encampment on February 27, 2019 and March 1, 2019 – events which led to the making of an Evacuation Order by the Fire Commissioner on March 1, 2019, on grounds that there was an imminent and serious danger to life and property. The new evidence sought to be adduced establishes that the encampment was evacuated on March 2, 2019. I was advised by counsel on the hearing of these applications that the site remediation was expected to be completed on March 10, 2019 at which time the Evacuation Order would be spent.

II. Background

[5] The material facts relevant to the disposition of the applications before me are set out in the thoughtful reasons for judgment of the chambers judge, indexed as Maple Ridge (City) v. Scott, 2019 BCSC 157.

[6] Briefly, the encampment was established in May 2017 on lands known as the St. Anne Lands. The St. Anne Lands consist of two parcels owned by the City and two parcels owned by BCTFA, an agency of the Province. Prior to the formation of the camp, BCTFA licensed its lands to the City for use as a park. The St. Anne Lands are located in a primarily residential urban area of the City.

[7] At the end of May 2017, the City commenced an action and filed a notice of application for an injunction requiring the occupants of the encampment to vacate the St. Anne Lands. The City did not pursue that application.

[8] Over time, fire safety hazards associated with the site became more acute, particularly as winter approached. Occupants of the camp sought to warm themselves by starting campfires and using flammable liquids and propane tanks.

[9] In November 2017, the City filed an application for injunctive relief requiring the property to be vacated or, in the alternative, requiring occupants of the encampment to comply with fire safety regulations (the “Fire Safety Regulations”) developed by the Maple Ridge Fire Department (“MRFD”). The City did not pursue that application. Instead, it negotiated the terms of a consent order (the “Consent Order”) incorporating the Fire Safety Regulations, which was pronounced by a Supreme Court judge on November 27, 2017. The context in which the Consent Order was made, its recitals and terms were summarized by the chambers judge:

[20] To its credit, Maple Ridge followed then, and has attempted to do so since, an approach more collaborative than confrontational. It did not pursue its application to evict the occupants. Instead, it negotiated.… The result [of the negotiations] was the Consent Order, by which the parties agreed to a number of terms intended to improve fire safety. That order comprises recitals as well as the operative terms, and incorporates the MRFD’s fire safety regulations (I have added the emphasis):

...

AND UPON HEARING A JOINT SUBMISSION on behalf of the Plaintiff and Defendants, whereas:

1. The Defendants and others (the “Occupants”) have taken up occupation in an encampment on the lands described below as the St. Anne Lands (the “Encampment”).

2. The Maple Ridge Fire Department has issued certain Fire Safety Regulations in respect of the St. Anne Lands and Encampment, as developed in consultation with the Occupants, and as described below.

3. The parties agree that fire safety within the Encampment is of critical importance and best achieved through cooperation and collaboration between the parties.

4. The Occupants are primarily comprised of homeless people, some of whom have mental health, addiction or other disabilities.

5. In order to comply and maintain compliance with the Fire Safety Regulations to the best of their abilities, the Occupants require support and services to be provided at no cost to them, including the following:

a) Fire-resistant tents;

b) Fire-resistant tarpaulins;

c) Cold weather sleeping bags;

d) Cold weather clothing; and

e) In-tent heaters, subject to the safety approval by the Maple Ridge Fir Department (not to be unreasonably withheld)

all in sufficient quantities to meet the needs of those Occupants occupying the Encampment as at the date of this Order (the “Life Safety Necessities”).

6. The City supports the delivery to the Encampment of the Life Safety Necessities.

7. Furthermore, in conjunction with Fire Safety Regulation compliance being achieved upon the St. Anne Lands, the City supports the installation upon the St. Anne Lands of a potable water supply and a modular washroom unit.

8. The parties agree that the purpose and intention of this Order is to obtain and maintain Fire Safety Regulation compliance upon the St. Anne Lands.

THIS COURT ORDERS:

1. The Defendants and all those individuals who have taken up continuous occupation upon the lands ... and who have notice of this Order, shall make best efforts, each according to individual ability, to achieve and maintain upon the St. Anne Lands compliance with the “Maple Ridge Fire Department - Community Health and Safety Notice” which are attached to this Order as Schedule “A” (the “Fire Safety Regulations”).

2. The Plaintiff, or its agent or contractor, may enter upon the St. Anne Lands and assist the Defendants in bringing the St. Anne Lands into compliance and in maintaining compliance with the Fire Safety Regulations.

3. No person having notice of this Order shall hinder, delay, interfere or obstruct any person from performing any provision of this Order.

…

Schedule “A”

MAPLE RIDGE FIRE DEPARTMENT

COMMUNITY HEALTH AND SAFETY NOTICE

For the fire safety benefit of all those occupying this encampment, the following regulations have been put in place. This notice to be posted in a conspicuous place within the camp.

FIRE & LIFE SAFETY REGULATIONS:

1. Entrance & Exits

§ Two points of entrance / exit are to be maintained along 223rd Street at all times. Unobstructed width of each to be 2 meters.

§ Exits must be maintained unobstructed and openable without keys or special knowledge at all times.

§ Pathways between occupied areas to be minimum 1 meter wide with no overhead obstructions and kept clear at all times.

2. Tents

§ Tent doorway must face a common pathway that leads to an exit.

§ Individual tents and associated personal belongings must be separated by a minimum 1 meter fire safety buffer maintained clear at all times.

3. Fence

§ Individual tents and associated personal belongings must be kept clear of fences by minimum 1 meter.

§ Fence is to be kept clear of all personal belongings.

4. Tarpaulins

§ Tarpaulins are limited to the polypropylene variety - no poly vapour barrier permitted -- no building material wrap permitted.

§ Limit one tarpaulin per tent when draped over top. Multiple tents under a single tarpaulin permitted if the tarpaulin is suspended minimum 1 meter above tents.

§ Tarpaulins may be hung vertically from fences to act as “privacy screens”. Tarpaulins are not to be otherwise fastened to the fences.

5. Cooking

§ Limit of one communal camp kitchen utilizing ULC (or equiv.) rated propane appliances only.

§ Limit of two 20lb. propane cylinders in the camp at any given time.

§ 5lb. ABC fire extinguisher required in close proximity of cooking appliances.

6. Open flame

§ No open flames (candles, torches, tiki, etc.) permitted.

§ No camp fires permitted.

7. Combustibles/Flammables

§ No accumulation of flammable liquids or aerosols permitted on site beyond those reasonably required for personal use (i.e. personal hygiene, etc.).

§ No upholstered furniture (couches, chairs) permitted on site.

§ Combustible materials must be kept to a minimum and separated from tents wherever possible.

§ Cardboard or wooden pallets are not permitted under tents.

§ Garbage to be collected and disposed of appropriately on a daily basis.

[21] The order and its recitals reflect some of the realities that distinguish this case from ordinary injunction applications. One reality is that, as counsel for the defendants observed, the camp occupants are marginalized persons many of whom suffer from mental health issues, medical problems, and addiction. They have no financial resources and limited life skills. Consequently, perfect compliance is an unrealistic expectation. This is reflected in the reference to the obligation of occupants to make “best efforts, each according to individual ability” to achieve compliance, and in the absence of any proceedings for contempt.

[22] A second reality is jurisdictional. Although the St. Anne Lands are in Maple Ridge, it is the province that is responsible for providing housing and social support, although the cooperation of Maple Ridge is essential. This is reflected in the reference to Maple Ridge supporting the delivery of the Life Safety Necessities which were contemplated to be provided to the occupants at no cost to them.

[23] Pursuant to those provisions, Maple Ridge has supported and facilitated the provision of fire-resistant tents and tarpaulins, cold weather sleeping bags and clothing, a modular trailer containing an electrically-powered hygiene centre that provides restroom facilities and hot water for washing and showering, and a large heating tent, heated by propane that is cordoned off. As I understand it, these have been funded by the province and by private charity. There is, of course, also a cold-weather shelter available for overnight occupation in Maple Ridge.

[24] What neither Maple Ridge nor the province has provided are in-tent heaters. According to Maple Ridge, no heaters have been suggested or found that are safe for in-tent use. According to the defendants, Maple Ridge and its fire department have unreasonably withheld approval.

[10] On October 19, 2018, an order was made by Acting Fire Commissioner Ron French pursuant to s. 27 of the Fire Services Act, R.S.B.C. 1996, c. 144 (the “French Order”) following an appeal taken on behalf of the occupants of the encampment from an earlier order made by the Local Assistant to the Fire Commissioner. The decision given by Acting Commissioner French and the order he made are as follows:

Decision

After consideration of the photographs of the encampment I find that the premises are in a state of disrepair such that a fire starting in the premise is likely to spread rapidly and endanger life or other property due to the proximity of tents, tarpaulins overlapping any gaps between tents/structures and lack of clear egress from all tents/structures. The Section 22 Orders are hereby modified by rescinding the wording of the actions ordered and replacing it as follows (compliance required within time indicated for each)

YOU ARE HEREBY ORDERED TO:

Position all tents and structures to maintain a 1 meter clear space on all sides. (7 days)

Position the entrance of all shelters or tents to face the path of egress. (3 days)

Ensure all egress routes shall be unimpeded. (24 hours)

Remove any tarpaulins that extend over more than one shelter or structure. (7 days)

Restrict the use of open flame; not to be used within 3 meters from combustible materials and do not use under combustible overhangs. (Immediately)

No storage or use of flammable liquids. (Immediately)

Restrict the use of propane (and reasonable storage) to a communal area. (3 days)

The work required by this decision shall be completed to the satisfaction of the LAFC having jurisdiction. In the event that you disagree with this decision I refer you to the provisions in section 28 of the Fire Services Act.

[11] The French Order was not appealed, nor did the occupants seek judicial review of that order.

III. The Application before the Chambers Judge

[12] As fire safety concerns persisted, the City made application to the chambers judge for an interim injunction permitting entry onto the St. Anne Lands to carry out the French Order and effect compliance with the Fire Safety Regulations. The City sought inclusion in the interim injunction order of verification terms requiring occupants of the encampment who were seeking housing to identify themselves to a representative of the City. To be clear, the City did not seek a variation of the Consent Order, but the making of a new order to address ongoing fire hazards.

[13] The chambers judge applied RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311 at 347–48 to the application before him, noting that the analysis comprises three questions: first, whether the applicant has demonstrated that there is a fair question to be tried; second, whether the applicant will suffer irreparable harm if an injunction is not granted; and third, whether the balance of convenience favours the granting of injunctive relief. He noted that the first two branches of the RJR-MacDonald test were not in serious dispute. The City and BCTFA were found to be subject to the French Order and exposed to liability and the real risk of irreparable harm should a fire occur. The chambers judge concluded that “fire safety has not been achieved through cooperation and collaboration between the parties as contemplated by the Consent Order”: RFJ at para. 31.

[14] The chambers judge focused on whether the balance of convenience favoured granting injunctive relief authorizing the City to enter upon the lands to bring them into and maintain them in conformity with the fire safety orders. He set out the position taken on behalf of the encampment occupants and his response to that position in the following passages:

[32] The defendants accept that, on the RJR-McDonald analysis, it would be appropriate to provide for enforcement of some of the terms sought by Maple Ridge, such as the requirements in the French order relating to the positioning of tents and structures, and egress routes. But, they say, in the absence of the provision of in-tent heaters as contemplated in the Consent Order, they have no choice but to take such steps as they can to be warm and dry. Any fire risk arising, they contend, is outweighed by the risk of hypothermia and the health and safety risks of being forced to live outside of the Anita Place community, which they maintain would be the likely effect of enforcement. Thus the balance of convenience, they argue, favours maintaining things as they are in so far as in-tent heat is concerned.

[33] In these circumstances, the defendants propose that I grant the orders Maple Ridge requests except those that affect their ability to produce heat in their tents or other structures. Those aspects, they submit, should be adjourned until Maple Ridge has lived up to what the defendants characterized as its obligation to provide safe in-tent heating.

[34] When I asked, “But what if a catastrophic fire occurred in the meantime?”, counsel’s response was, “"That would be unfortunate”. So the defendants must risk exposure to cold and damp, or they risk fire. As I said, absent practicable housing options, there is no satisfactory answer to this situation.

[35] The defendants submit that Maple Ridge should, in effect, be judicially encouraged to follow a policy of harm reduction, rather than enforcement. Instead, the defendants contend, Maple Ridge has declined to continue negotiations, and through its fire department, has unreasonably withheld approval of means of providing in-tent heat.

[36] On the evidence, however, no safe means of providing in-tent heat have been proposed other than two: a properly installed electrical grid that would allow individual occupants to hook up to power safely; or a central propane-powered heating system that would supply warm air to each tent or structure through ducts. Both proposals are practicable; as Mr. Wotherspoon put it, “all it takes is willingness and money”. But that is the problem. Both proposals involve infrastructure and expenditure well beyond anything contemplated in the Consent Order, and well beyond what it is open to this Court to order. Moreover, while Maple Ridge is responsible for fire safety in the community, it is British Columbia that is ultimately responsible for housing, although the cooperation of Maple Ridge is essential.

[37] Since I cannot order ”willingness and money”, the question is whether it would be legally right to suspend the enforcement of steps designed “to minimize the life safety risk to the collective group” pending the proper authorities getting around to doing something to solve this problem -- in the hope that nothing “unfortunate” would happen in the meantime. On balance, I do not think it would.

[38] On the facts, there can be no doubt (as the defendants recognized, and indeed acknowledged in the Consent Order) that the risks are real and serious…

[39] There can also be no doubt that there has been a considerable amount of resistance among some members of the Anita Place community to attempts by Maple Ridge employees to enforce the terms of the Consent Order already in place.

…

[48] Given the availability of a heating tent, communal cooking, hot water washing facilities, and cold weather shelter space within Maple Ridge, I must agree. A solution that fully meets the health and safety needs of the occupants of Anita Place may take some time, but the risk of catastrophic injury and loss of life is too great to ignore in the meantime. The balance of convenience favours the granting of the injunction in relation to the Fire Safety Orders.

…

[54] Accordingly, I grant the injunction to the extent of ordering compliance with the Fire Safety Orders, comprising the Consent Order/Fire Safety Regulations and the French order. I do not include the terms sought by Maple Ridge in paragraph 1(f) and 3 of part 1 of Maple Ridge’s notice of application. Those terms are not necessary to achieve compliance with the Fire Safety Orders.

[15] As noted earlier, the City also sought terms requiring any occupant of the encampment who was seeking housing assistance to identify themselves and the location of their campsite to a representative of the City by producing government-issued photo identification, or by agreeing to be photographed and providing their full legal name. The City proposed as a term of the order that occupants taking these identification steps would become “Verified Occupants” of the encampment. The City proposed that such information would be used and retained solely for the purpose of verifying the identity of such individuals. Further, the City sought an order requiring any person who had not become a Verified Occupant to vacate the lands and be enjoined from occupying the lands without the permission of the City. The chambers judge accepted that the purpose of this term was to ensure that the City was able to obtain a verifiable count of the number of occupants who were seeking housing, and to exclude those who did not wish to be housed from unlawful occupation of the St. Anne Lands. The chambers judge noted that similar relief was provided by Chief Justice Hinkson in British Columbia v. Adamson, 2016 BCSC 1245 at para. 86 and by Justice Skolrood in his order pronounced October 19, 2018 (No. S-S-84809, Nanaimo Registry) in Nanaimo (City) v. Courtoreille, 2018 BCSC 1629.

[16] The applicants objected to the inclusion of verification terms in the order, arguing that the requirement would constitute an unnecessary and unjustified invasion of their privacy rights. The judge concluded that the term was appropriate:

[63] While Maple Ridge has no obligation to provide housing, it is obliged to cooperate in and facilitate the provision of housing by the province, and is responsible for zoning and other relevant aspects. I accept at face value Maple Ridge’s assurance that it requires, and will use, the information to assist the province and BC Housing in placing the occupants into housing, and to work towards the closing of the encampment, which all agree is ultimately necessary.

[64] Moreover, I accept Maple Ridge’s assertion that having the information will not only assist in identifying the scope of the need for housing, but will also allow the encampment to be scaled back, and the property cleaned of refuse and hazards following the transition of individuals into housing.

[65] As to the privacy and dignity rights of the defendants, the fact remains that they are occupying land either owned by, or licensed to, Maple Ridge. It does not seem to me to be an unfair requirement that, so long as they do so, they disclose their identities to Maple Ridge. Again, I take at face value Maple Ridge’s assurance that it will use the information only for the purposes described.

[66] Balancing, then, the purposes for which Maple Ridge proposes to use the information with the impact upon the privacy and dignity rights of the defendants, I conclude that the balance favours Maple Ridge. This is not a survival issue, but a process issue -- one that should assist in moving towards a housing solution.

[17] The City also sought a police enforcement clause. The judge held that the need for such a clause was clear on the evidence, noting that efforts by the City to achieve compliance with the Consent Order and the French Order had not been successful, “because of [the] less than full cooperation by the occupants, the actions of some occupants to frustrate Maple Ridge’s efforts, and the inability to resolve the root problem of inadequate shelter”: RFJ at para. 68. The judge rejected an argument advanced on behalf of the occupants that the order sought by the City (enjoining them from “hindering, obstructing or preventing” the City from carrying out the terms of the order) was too vague and gave too much discretion to the police. He also concluded that the enforcement discretion sought by the City would tend to reduce the risk of arrest and punishment, rather than increase it: RFJ at para. 70. The chambers judge declined, however, to authorize the creation of an exclusion zone that would effectively keep occupants away from the site while remediation efforts were undertaken pursuant to the terms of the order.

[18] By the terms of the order sought to be appealed, the City, including its servants, employees and contractors, is authorized to enter the lands on which the encampment is situated for the purpose of bringing those lands into, and maintaining them in, conformity with the French Order and Fire Safety Regulations. The order empowers the City to inspect the interior of any tent, shelter or structure on the St. Anne Lands for compliance with the French Order and Fire Safety Regulations and remove from the lands substances or materials prohibited by those orders. The order sought to be appealed also contains the verification terms objected to by the applicants. In addition, the order contains the following enforcement terms:

6. Any police officer who arrests and removes any person pursuant to the order of this Court is hereby authorized to:

a. release that person from arrest, upon the police officer being satisfied that the person will no longer contravene the provisions of the order of this Court;

b. release that person from arrest upon the person agreeing in writing to abide by the order of this Court and to appear before this Court at such a time and place as may be fixed for the purpose of being proceeded against for contempt of court or for fixing a date for such a proceeding;

c. where such a person has refused to give a written undertaking pursuant to paragraph 6(b) above, or where in the circumstances the police officer considers it appropriate, to bring forthwith such person before this Court at the Supreme Court Registry in Vancouver, or any such other place, or in any such manner, as the Court may direct for the purpose of being proceeded against for contempt of court, or for fixing a time for such proceedings; or

d. detain such person until such time until [sic] they can be brought before this Court.

[Emphasis added.]

IV. The Test on an Application for Leave to Appeal

[19] The test for determining whether leave to appeal should be granted was set out in Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326 (Saunders J.A. in Chambers):

[10] The criteria for leave to appeal are well known. As stated in Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A.) they include:

(1) whether the point on appeal is of significance to the practice;

(2) whether the point raised is of significance to the action itself;

(3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and

(4) whether the appeal will unduly hinder the progress of the action.

[20] The overarching concern is whether it is in the interests of justice to grant leave: Hanlon v. Nanaimo (Regional District), 2007 BCCA 538 at para. 2 (Saunders J.A. in Chambers).

[21] The party seeking leave to appeal bears the onus of showing that the requirements for leave have been met: British Columbia Teachers’ Federation v. British Columbia (Attorney General) (1986), 4 B.C.L.R. (2d) 8 (C.A.) at 11 (McLachlin J.A. in Chambers).

[22] The merits threshold on an application for leave to appeal is relatively low: Bartram v. Glaxosmithkline Inc., 2011 BCCA 539 at para. 16 (Prowse J.A. in Chambers). The test is whether the applicant has an arguable case of sufficient merit to warrant scrutiny by a division of this Court: A.L.J. v. S.J.M. (1994), 46 B.C.A.C. 158 at para. 10 (Hinds J.A. in Chambers).

[23] Leave to appeal from a discretionary order will only be granted where the order is clearly wrong, a serious injustice will occur, or the discretion was not exercised judicially or was exercised on a wrong principle: The Owners, Strata Plan LMS 1212 v. Winchester Investments Ltd., 2004 BCCA 500 at para. 2 (K. Smith J.A. in Chambers); Strata Plan LMS 2019 v. Green, 2001 BCCA 286 at para. 6 (Proudfoot J.A. in Chambers); Rand v. The Anglican Synod of the Diocese of British Columbia, 2008 BCCA 294 at para. 4 (Rowles J.A. in Chambers); First Majestic Silver Corp. v. Davila, 2014 BCCA 11 at para. 25 (Neilson J.A. in Chambers).

[24] As Hinkson J.A. (as he then was) stated in Hagwilneghl v. Canadian Forest Products Ltd., 2011 BCCA 478 (in Chambers):

[31] Whether or not to grant or refuse injunctive relief is a matter of discretion. Where an application for leave to appeal relates to a discretionary order, the applicable test on the merits is whether there is an arguable case that the Chambers Judge erred in principle, made an order that is not supported by the evidence, or whether the order appealed will result in an injustice.

[25] In Drader v. Abbotsford (City) (1997), 40 B.C.L.R. (3d) 16 (in Chambers) at para. 27, Ryan J.A. noted that “it would be exceptional to grant leave in a case which turns upon where the balance of convenience lies.”

V. The Applicants’ Position

[26] The applicants submit that the chambers judge erred in principle and made orders unsupported by the evidence. They submit that the orders will continue to be productive of a serious injustice, including by infringing their privacy interests. Specifically, the applicants seek leave to argue that the chambers judge erred:

1. In permitting a “collateral attack” on the Consent Order;

2. In granting verification terms as part of the order;

3. In granting an order that permits the enforcement of fire safety orders that are ambiguous, vague and uncertain;

4. In granting an enforcement condition that is vague and permits the indefinite incarceration of individuals who are arrested for contravening the order; and

5. By refusing to review and consider the evidentiary record.

[27] The applicants submit that their proposed grounds of appeal are meritorious and raise issues of general importance.

[28] I will address in brief terms the substance of each of the applicants’ proposed grounds of appeal.

[29] In support of their first proposed ground of appeal, the applicants argue that the City’s application for injunctive relief sought relief inconsistent with the Consent Order. They assert that the application amounted to a collateral attack on the Consent Order, and the chambers judge erred in permitting it. The applicants say that the new evidence they seek to have adduced – in the form of affidavits sworn by Caitlin Shane, a lawyer at Pivot Legal Society, and Ana Ramirez – should be admitted to evaluate this proposed ground of appeal as it is credible and relevant to the issue of whether the two orders can co-exist, an important issue in the determination of the leave application. The new evidence relates to the manner in which the order was executed on February 22–24, 2019. Among other things, the new evidence is said to speak to the inherent incompatibility of the orders, the difficulty some of the occupants may have had in complying with the verification terms of the order, and an allegation that those responsible for the enforcement of the order failed to comply with its terms by establishing an “exclusion zone”, even though the chambers judge specifically declined to impose such a condition. The new evidence also documents the weather-related challenges the occupants experienced after the order was enforced. It is, for this reason, also said to be relevant to the stay application.

[30] The applicants raise two issues in relation to the verification terms of the order. First, they submit that the verification terms should not have been included in the order as they do not raise a fair question to be tried in the context of the City’s pleaded case. Second, they submit that the chambers judge erred in concluding that the balance of convenience favoured the imposition of these terms. They submit, as they did in the court below, that their informational privacy interests in being left alone and free from forced identification are significant, while there are no countervailing public interest considerations that require such identification. They submit that the privacy question that lies at the heart of this case raises issues of general importance that should be addressed by this Court. They also submit that the absence of either a non-disclosure provision or a requirement that personal identifying information gathered pursuant to the order be destroyed after the purpose for which it was gathered has been fulfilled, raise meritorious questions of general importance.

[31] By their fourth proposed ground of appeal, the applicants seek leave to argue that both the Fire Safety Regulations incorporated into the Consent Order and the order of the chambers judge that prohibits all those who have taken up occupancy on the St. Anne Lands from hindering, obstructing or preventing the City from carrying out the terms of the order are ambiguous. They say this ambiguity violates the well-established principle that the terms of an injunction order should be clear so as to permit those who will be governed by it to know with precision what actions are forbidden: Oak Bay Marina Ltd. v. Haida Nation (1995), 69 B.C.A.C. 132 (C.A.) at para. 12. The applicants also seek leave to argue that term 6(a) of the chambers judge’s order authorizes the indefinite detention of an arrested person.

[32] Finally, in their sixth proposed ground of appeal, the applicants seek leave to argue that the alleged errors in principle committed by the chambers judge are compounded by his alleged refusal to review and consider the evidentiary record.

VI. Analysis

[33] Against this background, I turn to consider whether the test for leave to appeal has been met.

[34] In my respectful view, none of the proposed grounds of appeal have been shown to raise questions of general significance to the practice. The order sought to be appealed is a fact-driven order. The conditions of that order turned on the chambers judge’s assessment as to where the balance of convenience lies in a particular context that raises complex social and public safety issues.

[35] Turning to the second component of the test for leave, I have difficulty accepting the proposition that the proposed appeal has significance to the action itself. In its underlying notice of civil claim, the City seeks declarations that the occupants have committed a trespass and that they have breached its Parks Regulation Bylaw by remaining in a park closed to public use and by erecting temporary shelters on park land. In the context of that action, the applicants seek leave to challenge an interim order designed to protect encampment occupants, neighbouring properties and their owners, and the St. Anne Lands from harm pending resolution of the action. These are shared objectives and I do not see how the order sought to be appealed can be said to be significant to the action itself.

[36] Recognizing that the merits threshold is relatively low, I am also of the view that the applicants have not established an arguable case that the chambers judge erred in principle or that he made an order that is either unsupported by the evidence or will lead to a serious injustice.

[37] I do not consider it reasonably arguable that the order sought to be appealed is a collateral attack on the Consent Order. The City did not, by its application to the chambers judge, seek to avoid what it perceived to be the unfavourable consequences of the Consent Order (which limited the City to entering upon the St. Anne Lands to assist the occupants in bringing the encampment into compliance with Fire Safety Regulations) by going to another forum. Rather, it returned to the same forum to argue that the terms of the Consent Order were inadequate to enable it to take the steps necessary to guard against the very real possibility of a catastrophic loss of human life. I do not think it is arguable the two orders are incompatible, nor do I think it is necessary to admit the fresh evidence tendered by the applicants in aid of this argument. The new evidence does not illuminate the question of whether the orders are incompatible. At most, the evidence could potentially establish that the manner in which the order was carried out (including the applicants’ allegation that an exclusion zone was created as the order was being enforced) exceeded the authority conferred by its terms. The manner in which the order was carried out is not, in my respectful view, relevant to the resolution of this leave application. I wish to be clear, however, that I would have reached the same result had I determined to admit the applicants’ evidence on their application for leave to appeal.

[38] I see no arguable error in principle in the chambers judge’s determination that verification terms were required to facilitate the provision of housing to those in need. First, the absence of adequate housing alternatives and insufficient shelter are squarely put in issue by the pleadings. Indeed, the applicants appear to have conceded this point before in the court below.

[39] Second, I see no arguable error in principle arising from the manner in which the chambers judge exercised his discretion in balancing the public interest in the provision of adequate housing with the applicants’ privacy interests. He weighed the interests at stake and concluded that the verification terms were appropriate to secure housing for people in need and were not unfair given that the occupants are on land owned by, or licensed to, the City: RFJ at paras. 59–66. As noted in Drader, leave will rarely be granted to appeal an injunction order that reflects how competing interests were balanced in a particular factual context. While not determinative of this application, I note that similar terms have been imposed in other cases.

[40] The respondents argue that the applicants’ asserted expectation of privacy and right to anonymity is contrary to the requirements of s. 6(1) of the Trespass Act, S.B.C. 2018, c. 3. Section 6(1) of the Trespass Act provides that on the demand of an occupier or authorized person who has reasonable grounds to believe that a person is trespassing on the premises, that person must provide his or her name and address to the occupier or authorized person. It is unnecessary to address the point on this application and would be unwise to do so. It is sufficient, in my view, to conclude as I have that the chambers judge did not err in principle in imposing the verification terms and that those terms have not been shown to give rise to a serious injustice warranting a grant of leave.

[41] To the extent that the wording of the verification terms might, as the applicants suggest, be improved by imposing on the City obligations not to disclose the information for any reason other than to secure an occupant suitable housing and to destroy the information when it was no longer required for that purpose, I am not satisfied that leave is required to address these issues. First, the chambers judge accepted the City’s position as to why the information was necessary and the limited use the City would make of that information. Further, the chambers judge contemplated that an application to amend unworkable aspects of the order might be made. For its part, the City signalled, on the hearing of this application, its willingness to consider how the verification terms of the order might be amended by the chambers judge to achieve their goals in the least intrusive way possible. The existence of an alternative avenue for relief is, in my view, an appropriate consideration in determining whether it is in the interests of justice to grant leave.

[42] I make the same point with respect to the applicants’ contention that term 6(a) of the order sought to be appealed authorizes the indefinite detention of arrestees. It was the obvious intent of the chambers judge to achieve the opposite result – to craft an order that reduced resort to arrest and limited post-arrest detention periods. Without conceding that term 6(a) has the effect the applicants say it has, the City responded to the applicants’ concern about the language of term 6(a) in a letter dated March 5, 2019. The applicants did not oppose the admission of this letter on the hearing of the leave application. In the letter, the City proposed a consent order that would replace the language of term 6(a) with the following:

6. Any police officer who arrests and removes any person pursuant to the order of this Court is hereby authorized to:

a. release that person from arrest, upon the person stating that he or she will no longer contravene the provisions of the order of this Court; or

…

[Emphasis added.]

The applicants have not taken the City up on its offer, preferring instead to seek leave to argue this ground. In my view, an applicant for leave can have no reasonable expectation that leave will be granted on an issue that can, if necessary, be addressed in the court below.

[43] I see no merit in the applicants’ contention that the chambers judge erred in principle by imposing enforcement terms that are impermissibly vague. Nor do I see any merit in the applicants’ submission that leave should be granted on grounds that the terms of the Fire Safety Regulations and the French Order which the City was authorized to enforce are themselves impermissibly vague. With respect to the Fire Safety Regulations, the applicants consented to the imposition of an order incorporating those regulations. With respect to the French Order, no steps were taken by the applicants to challenge that order on grounds that it was ambiguous or uncertain. Against this background, it is not open to the applicants to advance as a ground of appeal that these uncontested orders are impermissibly vague. With respect to the enforcement terms of the order that enjoin the occupants from “hindering, obstructing, or preventing” the City from carrying out the terms of the order, I am not persuaded it is reasonably arguable that such an enforcement condition, routinely imposed in like cases, is impermissibly vague.

[44] There is no merit in the argument that the chambers judge did not consider the evidentiary record, and the point was not pursued by the applicants in oral argument.

[45] Finally, I agree with the position advanced by counsel for the Province that prolonged litigation of an interim fire safety order will neither serve the interests of the parties nor advance the public interest in ensuring the safety of encampment occupants and the prevention of harm to those who own or live in nearby properties.

[46] As it has not been shown that the test for leave has been met, I would dismiss the application for leave to appeal. Having done so, it is unnecessary to consider the application to stay the order pending appeal or admit the new evidence sought to be tendered by the City.

“The Honourable Mr. Justice Fitch”