2007 BCSC 295err1 Kollen v. Vancouver (City)

Before: The Honourable Mr. Justice Joyce

Reasons for Judgment

Counsel for the Plaintiffs and Defendants by Counterclaim (with the exception of Tim Louis Law Corporation)	Daniel R. Bennett Christopher S. Wilson
Counsel for the Defendant	François LeTourneux
Date and Place of Hearing:	February 15, 2007
	Vancouver, B.C.

[1] This is the latest skirmish in a long standing dispute between the City of Vancouver (the “City”) and the owners of a building concerning the City’s efforts to extinguish the owner’s legal, non-conforming use relating to a large billboard sign that sits atop their building.

[2] The City seeks a declaration that the defendants by counterclaim, with the exception of Tim Louis Law Corporation, (the “Owners”) are in contempt of an order of Satanove J. pronounced December 16, 2005 by continuing to place advertising copy on the Sign.

[3] For the reasons that follow, I am not satisfied that the City has proven to the requisite standard that the Owners are in contempt of court.

[4] The following chronology sets out the background leading to Madam Justice Satanove’s order:

*Date*	*Event*
1954	The Sign was installed on the building pursuant to a permit issued by the City. The sign was therefore legal and conformed to the by-laws.
1970	The City amended its by-laws making rooftop signs illegal. The legal status of the Sign became “grandfathered”. It remained legal but was now non-conforming.
March 30, 1972	The Legislature enacted s. 571A of the Vancouver Charter, which enabled the City to order the removal of signs that had become non-conforming.
1976	The City requested the voluntary phasing out of non-conforming signs. As a result the advertising copy was removed from the Sign but the supporting structure remained.
January 1998	The Owners once again placed advertising copy on the Sign structure.
September 28, 1998	The City adopted a resolution ordering the removal of the Sign.
December 13, 1999	Lowry J. (as he then was) quashed the resolution on the ground that the City had failed to give the Owners notice and an opportunity to be heard but rejected the Owner’s argument that the resolution was unconstitutional because it conflicted with the Charter.
March 30, 2001	The Court of Appeal upheld the constitutionality of the resolution.
September 20, 2001	The Supreme Court of Canada refused leave to appeal.
June 13, 2001	The City adopted a fresh resolution ordering the removal of the Sign.
May 20, 2004	Garson J. quashed the second resolution on the ground that the City’s decision was based on a wrong assumption, namely that the placing of advertising copy on the sign was illegal.
February 3, 2005	The City adopted a third resolution ordering the removal of the Sign.

[5] The plaintiffs, being two of the Owners, challenged the validity of the third resolution and the City by counterclaim sought an injunction to enforce the resolution. On December 16, 2005, Satanove J. upheld the third resolution and granted the following orders:

THIS COURT ORDERS:

2. that the Defendant’s Counterclaim be and is hereby allowed, as follows:

(a) the Court declares that the [Owners] have contravened the resolution of the City Council passed February 3, 2005, by maintaining or allowing to be maintained the non-conforming rooftop sign (which includes the supporting sign structure) on the premises located at 151 – 177 East Broadway in the City of Vancouver (the “Lee Building”);

(b) the Court orders the [Owners] to remove the non-conforming rooftop sign (which includes the supporting sign structure) from the Lee Building within 30 days of the date of pronouncement of this Order; and

(c) the Court grants a permanent injunction preventing the [Owners] and their agents from erecting, causing, suffering and allowing to be erected and maintained any other rooftop sign (which includes a supporting sign structure) on the Lee Building.

[6] On January 13, 2006 the Owners filed a Notice of Appeal from the order of Satanove J.

[7] On January 16, 2006 the Owners removed the advertising copy from the Sign structure but left the structure in place.

[8] On January 27, 2006 the Owners sought a stay of the injunction pending their appeal. On March 1, 2006 Smith J.A. stayed the enforcement of paragraph 2(b) of the order of Satanove J.

[9] A disagreement then arose between the parties as to the effect of the stay. The Owners were of the view that they were entitled to place advertising copy on the sign structure from time to time without being in breach of that part of the order that had not been stayed. The City was of the view that the Owners were only allowed to replace the advertising copy that had been removed on January 16, 2006 and that paragraph 2(c) prevented them from placing any different advertising copy on the sign structure.

[10] The parties sought to have Smith J.A. resolve this dispute by seeking “clarification” of his decision. In response, Smith J.A. wrote to the Registrar of the Court of Appeal:

Thank you for sending up the letter from counsel for the appellants dated March 14, 2006, in which counsel requests “clarification”.

In the last sentence of my reasons for judgment handed down on March 1, 2006, I ordered a stay, pending disposition of the appeal, of enforcement of paragraph 2(b) of an order made by Madam Justice Satanove of the Supreme Court on December 16, 2005. My order cannot be expressed more clearly. By the aforementioned letter, counsel had, in effect, requested that I interpret Madam Justice Satanove’s order and, depending on my interpretation, express an advisory opinion as to the effect of the stay if certain events should occur. Please advise counsel by copy of this memorandum that I decline to do so.

[11] The Owners have, from time to time, placed new advertising copy on the Sign structure, which the City submits is in contempt of paragraph 2(c) of Madam Justice Satanove’s order.

[12] In my view, the fundamental issue in this application is whether the order in respect of which the Owners are said to be in contempt is clear and precise. In Hama v. Werbes 2000 BCCA 367 Braidwood J.A. referred to the need for precision in an order that is the basis for contempt proceedings. At paragraph 8 he said:

It is well established that civil contempt of court proceedings are quasi-criminal in nature and that the standard of proof is proof beyond a reasonable doubt: Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217 at 229. The orders asserted to have been breached must be clear and precise in their directions to the person who is required to do the act.

[13] The issue is not whether the order of Smith J.A. is clear and precise. As Mr. Justice Smith said, his order could not be clearer. It stayed the enforcement of paragraph 2(b) of Madam Justice Satanove’s order. The issue is whether the part of the order that remains enforceable, paragraph 2(c), is clear and precise even though the preceding paragraph is inoperative.

[14] The City submits that paragraph 2(c) is clear. The City’s argument runs thus:

(a) Paragraph 2(c) enjoins the Owners from erecting “any other rooftop sign”.

(b) “Rooftop sign” is defined in the City’s Sign By-law as “a sign which extends above the roof line” and the Sign in question is undoubtedly arooftop sign.

(c) “Sign” is defined in the City’s Sign By-law as “any device, notice or medium, including its structure and other components, which is visible from any street … and which is used … to attract attention for advertising”.

(d) The new advertising copy is a component of the sign, extending above the roof line, visible from the street, and is used to attract attention for advertising.

(e) Thus any advertising copy that is different from that which existed when the injunction was granted constitutes an “other” rooftop sign and is prohibited by paragraph 2(c).

[15] The Owners also submit that Madam Justice Satanove’s order is clear but say it does not preclude them from doing what they are doing. Their argument runs as follows:

(a) Paragraph 2(b) required the owners to remove the Sign – structure and advertising copy.

(b) Paragraph 2(c) prohibited them from erecting any other sign – that is, a new or different structure and advertising copy.

(d) There is only one sign, which is comprised of the structure and the advertising copy.

(e) The sign can be maintained because paragraph 2(b) was stayed. Changing the advertising copy from time to time is not erecting “anyother sign”, it is simply maintaining the existing sign in the manner it was maintained in the past.

[16] In the alternative, the Owners submit that if the order requires interpretation, they are entitled to the most favourable interpretation (Agricultural Land Commission v. Munro, [2006] B.C.J. No. 2149 (S.C.) at para. 79). They say that the most favourable interpretation is that paragraph 2(c) was intended to prevent the erection of new or additional signs comprised of structures and copy, and was not intended to deal with the maintenance of the existing sign, including changing the advertising copy on it.

[17] The Owners submit that their interpretation is supported by the reasons of Smith J.A. for granting the stay of enforcement of paragraph 2(b), in which he said at paras. 14 – 16:

A more important consideration in the question of where the interests of justice lie, however, is the balance of inconvenience. The appellants’ evidence is that the operation of the Lee Building, which is comprised in large part of rented residential premises, is marginally economic. The building is old, having been constructed in 1911, and they say it is currently in need of roof repairs and modifications to ensure the security of the residents. Their evidence is that the revenue earned from the sign, after payment of legal expenses in their dispute with the City, is necessary to maintain the building. Removal of the sign structure will take approximately 14 days at a cost of approximately $105,000 to $108,000, according to an affidavit sworn by the operations manager of a local sign company, and it will entail cutting the structure into sections.

If the appellants’ application is not granted, revenue from the sign will be irrevocably lost and the structure will have to be demolished and removed at substantial expense. If the appeal should succeed, these costs will not be recoverable by the appellants and, indeed, the sign structure will likely not be re-erected.

On the other hand, if the application is granted, the detriment to be suffered by the City pending the appeal will be modest and will not involve any economic loss. It will simply mean that a sign that the City considers to be a visual blight on the landscape will continue to annoy those whose sensibilities are offended by its presence until the appeal is heard.

[18] The Owners submit that the limited stay of paragraph 2(b) of the order was predicated on the continued use of the sign by placing advertising copy on the structure. There was evidence that by the time the stay application was heard the advertising copy had been removed from the sign and new copy would have to be put up in order to permit the Owners to continue to earn revenue pending the disposition of the appeal.

[19] The City submits, however, that there was no evidence before Smith J.A. that it was necessary to put up advertising copy different from that which had formerly adorned the structure in order to generate revenue. The City refers to paragraphs 6 and 7 of the affidavit of John Hurd, which was before Smith J.A.:

6. I am advised by Scott Primrose of J.J. Barnicke Vancouver Ltd. (“J.J. Barnicke”), the Lee Building’s Property Manager, and believe, that the sign company responsible for displaying and maintaining the advertising copy on the Sign confirmed that it would remove the advertising copy from the Sign by January 16, 2006. I understand that the advertising copy was removed from one face of the Sign before January 16, and from the other face on the afternoon of January 16.

7. We have arranged that, if a stay of proceedings is granted, the advertising copy will be returned to the Sign so that it will continue to generate revenue.

[20] The City submits that the reference to “the advertising copy” being “returned” to the Sign is consistent with return of the same advertising copy. In my view, it is common knowledge that billboard ads change from time to time. The statements in the affidavit are not inconsistent with the intention to place or permit to be placed new advertising copy from time to time.

[21] The Owners submit that the City’s Sign Bylaw also supports its position. Section 5.1 of the bylaw requires a permit to erect or alter a sign but section 5.2.1(a) provides that a permit is not required for “a change of copy for a sign authorized under a previous permit”. The Owners submit this section provides an indication that changing the copy on a sign is not equivalent to erecting or maintaining another sign.

[22] In my view, Madam Justice Satanove’s order is clear enough when considered in its entirety as it was pronounced. Paragraph 2(b) requires the Owners to remove the Sign, comprised of the structure and the advertising copy, within 30 days. Paragraph 2(c) prohibits the Owners from erecting any other rooftop sign. The intention is clear – remove that which exists and do not erect anything in its place. Paragraph 2(c) was intended to come into play once paragraph 2(b) had been complied with. It was intended to prohibit the erection of signs in the place of that which was removed.

[23] It is also my view that when enforcement of paragraph 2(b) was stayed the scope of operation of paragraph 2(c) was rendered far from clear and precise. I am not satisfied that it must be read so as to preclude changing the advertising copy on the structure which the Owners are entitled to keep in place pending the disposition of the appeal. The situation that paragraph 2(c) was intended to deal with, namely, the prohibition against replacing that which was removed with another rooftop sign, has not come to pass.

[24] It is not perfectly clear, in my view, that the Owners have erected “any other rooftop sign” by merely changing the advertising copy on the existing structure. I am satisfied that sufficient ambiguity exists with respect to the order that it cannot be said, beyond a reasonable doubt, that the Owners are in contempt of it.

[25] Accordingly, the application is dismissed. In my view the costs of this application should follow the result of the appeal.

“B.M. Joyce, J.”
The Honourable Mr. Justice B.M. Joyce

April 19, 2007 – Revised Judgment

Please be advised that the attached Reasons for Judgment of Mr. Justice B.M. Joyce dated March 2, 2007 have been edited.

On the front page, Counsel for the Plaintiffs are identified as follows:

Daniel R. Bennett and Christopher S. Wilson

Citation:	*Kollen v. Vancouver (City),*
	2007 BCSC 295