2005 BCSC 130 The City of Penticton v. 438144 B.C. Ltd., Melville Robert Mayes et al

Before: The Honourable Mr. Justice Ralph

Reasons for Judgment

(In Chambers)

Counsel for the petitioner	Michael C. Woodward
The defendant Melville Robert Mayes appearing in person and on behalf of Melville Orlando John Mayes and 438144 B.C. Ltd.
Date and Place of Hearing:	November 12, 2004
	Vancouver, B.C.

[1] In this application, the City of Penticton (“the City”) seeks an order declaring the respondents to be in contempt of the order pronounced on June 17, 2004, by Kirkpatrick J. The order of Kirkpatrick J. arose out of the unlawful manner in which the respondents were renovating and utilizing a building at 121 and 123 Westminster Avenue, in the City of Penticton, and restrained them from continuing to do so. The building is a two-storey commercial building in downtown Penticton. The upper floor contains two residential suites.

[2] At the date when the petition was filed, the registered owner of the property was 438144 B.C. Ltd. (“the Company”). Its two directors are the respondents, Melville Robert Mayes and his father, Melville Orlando John Mayes. Melville Robert Mayes is its president. On March 4, 2004, the company transferred title of the property to its two directors. Melville Robert Mayes appeared on behalf of himself, his father and the Company, and I will refer to him as “Mr. Mayes” in this judgment.

[3] During 2003, extensive renovations of the building were carried out. No building permit was obtained. Five stop work orders were made between May 12 and August 12 but work continued. Work carried on after May 12 included roofing, plumbing, insulation, installation of windows and exterior stairs, and drywalling. Mr. Mayes deposed in an affidavit sworn on February 27, 2004, that the cost of repairs to that date was $105,000.00.

[4] The Company applied for a building permit on August 20, 2003 and the City set out a number of prerequisites required under the building bylaw. They included delivery of construction plans, a structural engineer’s review of repairs and a geotechnical engineer’s review of ground conditions under the building. The reports were not produced and the stop work orders remained in effect, but work continued.

[5] In his affidavit sworn April 26, 2004, Mr. Chickloski, the City’s Chief Building Official, deposed that because of the extent of the work, he could not see and could not assume that prior fire separations and fire safety had been incorporated in the upper floor construction of the building. He stated that occupants of the upper floor are potentially at risk in the event a fire breaks out.

[6] On June 17, 2004, Madam Justice Kirkpatrick granted an injunction which included the following provisions:

1. that the respondents and all persons having knowledge of the order were restrained from occupying, inhabiting, renting or residing on the upper floor of the building;

2. that the respondents were to forthwith demolish, remove and undo that which had occurred since January 1, 2003, without a permit.

[7] The order for demolition was suspended for a period of 90 days to provide the respondents time to obtain a building permit to authorize the renovations. As part of the process, the respondents were required to obtain and file proper building plans and reports of structural and geological engineers. The application for the building permit was to be submitted in sufficient time before the specified extension so as to permit the City’s officials to assess the application.

[8] The City says that the respondents have breached both of the orders and are in contempt of court. The building official, Mr. Chickloski, has deposed that, based on visits he made to the premises on July 8 and September 16, 2004, both of the upper floor suites continued to be occupied. In his affidavit, Mr. Mayes admits that one suite was occupied until September 28 and deposes that the other was vacated “prior to the end of August”. He states that he believed he was required to give the tenants notice as required under the Residential Tenancy Act, S.B.C. 2002, c. 78 and that immediate vacancy was, therefore, not achievable.

[9] Mr. Mayes asserts that the renovations have been carried out to a higher standard than required by the building code. He also deposes that the electrical work on the residential suites was done by a qualified and certified electrician under a provincial permit and was inspected and passed by an electrical inspector. He states that it is “absurd” for Mr. Chickloski to conclude that the tenants were in any way at risk from fire or unsafe electrical work.

[10] Mr. Mayes deposes that he retained structural engineers and geotechnical engineers in August 2004 and was advised that both sent faxes to Mr. Chickloski advising him of their engagement. The memoranda sent to the City by the two engineering firms are dated September 3, 2004. No completed reports have been delivered and Mr. Mayes says that the engineers simply did not have time to complete their reports as of November 12.

[11] In his affidavit sworn November 9, 2004, Mr. Mayes states that it remains his intention to provide the City of Penticton with the engineering reports as soon as they have been prepared. Once the reports are provided, an application for the building permit will be made.

[12] It is the position of the City that contraventions of the order of June 17, 2004 have been clearly established. It submits that the case involves significant health and safety issues which arise as a result of the respondents’ deliberate contravention of the order directing non-occupancy of the residential suites. For these reasons, it submits that the appropriate remedy is a fine. In addition, the City seeks special costs in the application.

[13] The respondents say that they have taken steps to comply with the order, the residential premises have been vacated, and engineers have been retained to produce the required reports. They say that they have made reasonable efforts to comply with the terms of the court order, that they remain committed to applying for a building permit, and that the failure to fulfill all the provisions of the order has not been wilful.

[14] The allegation of the City is that the respondents are guilty of civil contempt of court. In North Vancouver (District) v. Sorrenti (2004), 29 B.C.L.R. (4^th) 214, 2004 BCCA 316, Newbury J.A. stated at ¶14:

If one removes the element of “public defiance” – which is obviously not necessary for civil contempt – one is again left with the requirement that the conduct constituting disobedience of the court order must have been intentional, as opposed to accidental or unintentional, and with the fact that intention may be inferred from the circumstances. As this court stated in Topgro Greenhouses Ltd. v. Houweling, 2003 BCCA 355 (B.C.C.A.) “[t]o knowingly breach a court order is to commit a contempt of the court. All that is necessary to establish the contempt is proof of deliberate conduct that has the effect of contravening the order; an intent to bring the Court into disrepute or to interfere with the due course of justice or with the lawful process of the Court is not an essential element of civil contempt (¶6).”

[15] In examining the evidence before the court, it is significant in my view that Mr. Mayes continued to make the rental suites available to tenants for a substantial period after the order of Kirkpatrick J. In the case of one suite, the period was approximately two months. In relation to the second suite, it was approximately three and one-half months.

[16] Regarding the engineering reports, the notices of engagement were not given until two and one-half months after the restraining order and no engineering reports had been provided to the City by the time of the contempt application approximately five months after the order. I do not accept Mr. Mayes’ explanation that the engineers are “simply too busy” to have made their reports.

[17] It is clear that no steps have been taken to demolish the construction.

[18] In my opinion, it is also clear that Mr. Mayes intentionally refrained from taking the steps he was ordered to take. He seems to have regarded the City’s enforcement of its bylaws as a battle being waged against him by the City, which it was not. I doubt that he intended to bring the court into disrepute, but, as noted above, such an intent is not an essential element of civil contempt.

[19] I am satisfied beyond a reasonable doubt that Mr. Melville Robert Mayes has acted in contempt of the order of Kirkpatrick J.

[20] Mr. Melville Orlando John Mayes did not appear in the application, but his son spoke for him. He does not, however, appear to have had any participation in the renovation of the property, dealings with the City, or the application before the court. While Mr. Mayes Senior was bound by the order, I am not satisfied beyond a reasonable doubt that there has been deliberate conduct on his part that has had the effect of contravening the order. I do not, therefore, find him to be in contempt of the order.

[21] The respondent 438144 B.C. Ltd. had ceased to be a registered owner of the property prior to the order of Kirkpatrick J. On the evidence before me, I find that there is no basis to find the company in contempt of the order.

[22] What is an appropriate penalty? The City submits that it should be a substantial fine and points to the decision in Kamloops (City) v. Northland Properties Ltd., [1999] B.C.J. No. 2322 (S.C.), in which the defendant company continued to use apartment units as overnight or short-term lodgings in contravention of the City’s zoning bylaw. The court imposed a fine of $25,000 upon the company. There were 32 apartment units and the gross income derived from the units between the date of the injunction and the finding of contempt was $33,723. The City says that in the present case there are safety concerns arising from the construction that were not present in Kamloops (City).

[23] In British Columbia (Health Employers Assn.) v. Facilities Subsector Bargaining Assn. (2004), 31 B.C.L.R. (4^th) 124, 2004 BCSC 762, Bauman J. reviewed the sentencing considerations in civil contempt cases. In the course of doing so, he referred (at ¶14) to the text by Jeffrey Miller, The Law of Contempt in Canada (Toronto: Carswell, 1997) and his statement at p. 129:

As between criminal and civil contempts, the general principle is that criminal contempts are to be answered with penal sanctions, while sanctions for civil contempts should protect the rights as between private litigants and thus generally should be “coercive” (as opposed to punitive).

[24] In the present case, the City is enforcing a bylaw that has a public safety dimension. I have considered this in determining what is a reasonable penalty for Mr. Mayes’ defiance of the court order. I have concluded that Mr. Mayes must pay a fine of $3,000 to the Registry of the Court within 30 days.

[25] The City seeks special costs. Awarding special costs to a successful applicant in a civil proceeding has been recognized as an appropriate order, particularly where a defendant has been prosecuted at public expense for breach of a bylaw (See North Vancouver (District) v. Sorrenti). The City will be entitled to its costs assessed as special costs.

“Bryan F. Ralph, J.”
The Honourable Mr. Justice Bryan F. Ralph

Citation:	*The City of Penticton v. 438144 B.C. Ltd., Melville Robert Mayes et al.,*
	2005 BCSC 130