Municipal & Planning Law Reports

MUNICIPAL & PLANNING LAW REPORTS Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit municipal

VOLUME 90 (Cited 90 M.P.L.R. (4th))

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[Indexed as: Prairie Communities Development Corp. v. Okotoks (Town)] Prairie Communities Development Corp., Appellant (Applicant) and Town of Okotoks, Respondent (Respondent) Alberta Court of Appeal Docket: Calgary Appeal 1001-0240-AC 2011 ABCA 315 Marina Paperny, Keith Ritter, Clifton O’Brien JJ.A. Heard: September 16, 2011 Judgment: November 10, 2011 Municipal law –––– Development charges and levies — Levies –––– Applicant sought order quashing resolution of municipal council of town on basis that it adopted form of agreement under which municipality sought to impose obligation on developers to pay municipality off-site levies for categories of municipal works other than those for which it can impose off-site levy under s. 648 of Municipal Government Act — Applicant also sought order quashing municipality’s by-law, or portions thereof, which was also enacted under foregoing resolution and which imposed 2009 Off-Site Levies and Acreage Assessment, on basis that by-law failed to comply with Act — Application was dismissed — Appli- cant appealed — Appeal allowed in part — Portion of town’s Resolution adopting Contribution Agreement was declared invalid — Those parts of by-law imposing levies with respect to 32nd Street Bridge and roadway corridor were declared to be invalid, and by-law was quashed to that extent — Explanation proffered by municipal engineer was not adequate to relieve town from contributing to cost of these projects — By-law failed to disclose methodology adopted by town for making its proposed contribution at some future time through widening of bridge and corridor roads, nor was there certainty that town will ever share in these costs. 2 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

Municipal law –––– Attacks on by-laws and resolutions — Grounds — Ultra vires — Miscellaneous –––– Applicant sought order quashing resolution of municipal council of town on basis that it adopted form of agreement under which municipality sought to impose obligation on developers to pay municipality off- site levies for categories of municipal works other than those for which it can impose off-site levy under s. 648 of Municipal Government Act — Applicant also sought order quashing municipality’s by-law, or portions thereof, which was also enacted under foregoing resolution and which imposed 2009 Off-Site Levies and Acreage Assessment, on basis that by-law failed to comply with Act — Application was dismissed — Applicant appealed — Appeal allowed in part — Portion of town’s Resolution adopting Contribution Agreement was declared invalid — Those parts of by-law imposing levies with respect to 32nd Street Bridge and roadway corridor were declared to be invalid, and by-law was quashed to that extent — Explanation proffered by municipal engineer was not adequate to relieve town from contributing to cost of these projects — By-law failed to disclose methodology adopted by town for making its proposed contribution at some future time through widening of bridge and corridor roads, nor was there certainty that town will ever share in these costs. Cases considered by Clifton O’Brien J.A.: Bristol Developments (Alberta) Ltd. v. Sturgeon (Municipal District No. 90) (March 27, 1992), Doc. Edmonton 9203-00319, [1992] A.J. No. 1458 (Alta. Q.B.) — followed Keyland Developments Corp. v. Cochrane (Town) (2007), 32 M.P.L.R. (4th) 180, 416 A.R. 24, 2007 CarswellAlta 322, 2007 ABQB 160, [2007] A.J. No. 275 (Alta. Q.B.) — considered Nanaimo (City) v. Rascal Trucking Ltd. (2000), 20 Admin. L.R. (3d) 1, 183 D.L.R. (4th) 1, 2000 CarswellBC 392, 2000 CarswellBC 393, 2000 SCC 13, 251 N.R. 42, 132 B.C.A.C. 298, 215 W.A.C. 298, [2000] 1 S.C.R. 342, [2000] 6 W.W.R. 403, 76 B.C.L.R. (3d) 201, 9 M.P.L.R. (3d) 1, [2000] S.C.J. No. 14 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Shell Canada Products Ltd. v. Vancouver (City) (1994), 1994 CarswellBC 115, 1994 CarswellBC 1234, [1994] 3 W.W.R. 609, 20 M.P.L.R. (2d) 1, 20 Ad- min. L.R. (2d) 202, 110 D.L.R. (4th) 1, 88 B.C.L.R. (2d) 145, [1994] 1 Prairie Communities Development Corp. v. Okotoks 3

S.C.R. 231, 163 N.R. 81, 41 B.C.A.C. 81, 66 W.A.C. 81, [1994] S.C.J. No. 15, EYB 1994-67078 (S.C.C.) — referred to St. Paul (County) No. 19 v. Belland (2006), (sub nom. St. Paul (County) v. Bel- land) 263 D.L.R. (4th) 385, 20 M.P.L.R. (4th) 1, 380 A.R. 324, 363 W.A.C. 324, 57 Alta. L.R. (4th) 12, 2006 ABCA 55, 2006 CarswellAlta 165, [2006] A.J. No. 152 (Alta. C.A.) — considered United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (2004), 46 M.P.L.R. (3d) 1, 236 D.L.R. (4th) 385, [2004] 7 W.W.R. 603, 346 A.R. 4, 320 W.A.C. 4, 318 N.R. 170, 18 R.P.R. (4th) 1, [2004] 1 S.C.R. 485, 2004 CarswellAlta 355, 2004 CarswellAlta 356, 2004 SCC 19, 26 Alta. L.R. (4th) 1, 12 Admin. L.R. (4th) 1, 50 M.V.R. (4th) 1, [2004] S.C.J. No. 19, REJB 2004-55539 (S.C.C.) — considered Urban Development Institute v. Leduc (City) (2006), 2006 CarswellAlta 2087, 2006 ABQB 952, [2006] A.J. No. 1168 (Alta. Q.B.) — considered Statutes considered: Municipal Government Act, R.S.A. 1980, c. M-26 Generally — referred to s. 6 — considered s. 536 — considered s. 648 — considered s. 648(1) — considered s. 648(2) — considered s. 649 — considered s. 650 — considered s. 655 — considered Regulations considered: Municipal Government Act, R.S.A. 2000, c. M-26 Principles and Criteria for Off-site Levies Regulation, Alta. Reg. 48/2004 Generally — referred to s. 3 — considered s. 3(3) — considered s. 3(5) — considered s. 3(9)(a) — considered

APPEAL by applicant from judgment reported at Prairie Communities Development Corp. v. Okotoks (Town) (2010), 72 M.P.L.R. (4th) 205, 492 A.R. 247, 2010 ABQB 359, 2010 CarswellAlta 1009, 28 Alta. L.R. (5th) 215 (Alta. Q.B.), which dismissed application for order quashing municipality’s by-law, or portions thereof, which was also enacted under foregoing resolution and which imposed 2009 Off-Site Levies and Acreage Assessment, on basis that by-law failed to comply with Municipal Government Act. 4 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

F.R. Haldane, Q.C., N.J. Whitling, for Appellant A.L. Friend, Q.C., for Respondent

Clifton O’Brien J.A.: I. Introduction 1 The Municipal Government Act, RSA 2000, c M-26, (MGA), empow- ers municipalities to impose off-site levies in respect of land that is to be developed or subdivided. Such levies are chargeable with respect to new or expanded facilities or infrastructure, of a designated nature or kind, which are constructed off-site but which are required by, and benefit, the lands sought to be developed or subdivided. The levies can be imposed as a condition of granting a development permit or subdivision approval. Typically, the levies are borne by the initial developers of the subject lands, who, in turn, attempt to recoup these charges from the purchasers of the land after it has been developed or subdivided. 2 On September 14, 2009, the respondent, Town of Okotoks, (the Town), passed a Resolution enacting Bylaw 04-09, (the Bylaw), which imposed Off-Site Levies for 2009. The Town also approved in the same Resolution a form of agreement entitled the Contribution and Recovery of Expense Agreement, (Contribution Agreement). The Contribution Agreement set out the terms of an agreement contemplated to be entered into with developers. It provided for payment of fees with respect to off- site facilities and services of a kind and nature not designated in the MGA. As these fees fall outside the statutory grant of authority allowing for the imposition of off site levies, the Town has treated them as being payable by developers as a matter of contract, and relies upon its natural person powers to negotiate an agreement for that purpose. 3 The appellant, Prairie Communities Development Corp, (the Devel- oper), objected both to the Bylaw and to the Resolution adopting the Contribution Agreement. It filed an Originating Notice seeking to quash the Bylaw for non-compliance with the MGA and Alberta Regulation 48/2004 entitled “Principles and Criteria for Off-site Levies Regulation”, (the Regulation). The Developer also challenged the validity of the Con- tribution Agreement, and the Resolution adopting it, on the basis that the fees sought to be collected were unauthorized levies. 4 A chambers judge dismissed the application: Prairie Communities Development Corp. v. Okotoks (Town), 2010 ABQB 359, 492 A.R. 247 (Alta. Q.B.). The Developer appeals. Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 5

II. Legislation and Background 5 Sections 650 and 655 of the MGA allow a municipality to require a developer to either construct, or pay the cost of, new infrastructure within the area of planned development. These sections also allow the development authority, or the subdivision authority, to make construction, or payment of the cost of construction, a condition of gaining development or subdivision approval. 6 Many costs related to new development, however, fall outside the area of the development itself. They involve the construction of new infrastructure, or improvements to existing municipal infrastructure, to accommodate the increased demand for water treatment and distribution, sanitary sewage and like services created by the new development. Sub- section 648(1) of the MGA therefore allows a municipality to impose an “off site levy” by way of bylaw: 648(1) For the purposes referred to in subsection (2), a council may by bylaw (a) provide for the imposition and payment of a levy, to be known as an “off site levy”, in respect of land that is to be developed or subdivided, and (b) authorize an agreement to be entered into in respect of the payment of that levy. 7 Subsection 648(2) of the MGA limits that application of the off-site levy to certain discrete kinds of infrastructure, as follows: (2) An off site levy may be used only to pay for all or part of the capital cost of any or all of the following: (a) new or expanded facilities for the storage, transmission, treatment or supplying of water; (b) new or expanded facilities for the treatment, movement or disposal of sanitary sewage; (c) new or expanded storm sewer drainage facilities; (c.1) new or expanded roads required for or impacted by a subdivision or development; (d) land required for or in connection with any facilities described in clauses (a) to (c.1). [emphasis added] 8 As with infrastructure within the development, sections 650 and 655 of the MGA provide that a municipality can make either the issuance of a development permit, or the granting of subdivision approval, conditional 6 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

on the payment of an off-site levy. In addition, section 649 requires that, where an off-site levy is imposed, the bylaw authorizing the levy must set out the object of each levy and indicate how the amount was determined. 9 The Regulation sets out the principles and criteria to be applied in establishing an off-site levy for purposes of the MGA. Section 3 of the Regulation provides: 3(1) In determining the levy costs, the municipality is to retain the flexibility to negotiate the levy in good faith and in a manner that recognizes the unique or special circumstances of the municipality. (2) There is to be a full and open disclosure of all levy costs and payments. (3) There is a shared responsibility between the municipality and developers for addressing and defining existing and future infrastructure requirements and all beneficiaries of development are to be given the opportunity to participate in the cost of providing and installing infrastructure in the municipality on an equitable basis related to the degree of benefit. (4) Where necessary and practicable, the municipality is to coordinate infrastructure provisions and services with neighbour- ing municipalities. (5) There is to be a correlation between the levy and the impacts of new development. (6) The methodology for determining the levy is to be consistent across the municipality, while recognizing variations among infrastructure types. (7) The method of calculation for the levy is to be clear. (8) The information used to calculate the levy is to be kept current. (9) The calculation of the levy is to include, but is not limited to, (a) a description of the specific infrastructure facilities, (b) a description of the benefitting areas, (c) supporting technical data and analysis, and (d) estimated costs and mechanisms to address cost increases over time. (10) Calculation of the levy is to be determined in consultation with affected landowners and developers. (11) The levy is to be subject to annual reporting requirements. Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 7

10 The Town’s Bylaw provides for two types of levies: common levies that are said to be collected to pay for off-site infrastructure that will benefit the Town as a whole; and site-specific levies that relate to infrastructure within certain areas of development. 11 The Bylaw expressly incorporates the “common levies”, “site specific levies”, and “project descriptions” contained in a lengthy Report prepared by the Town’s administration entitled “2009 Off-Site Levies and Acreage Assessments”, (the 2009 Report). The Bylaw states: “The object of the levy and the method for determining the amount of the levy shall be as set out in” the 2009 Report. 12 The 2009 Report was supplemented by an Update report at the time of Council’s meeting on September 14, 2009. The Update report stated that the 2009 Report “... provides a compilation of project costs to be levied against new development on a per acre basis to finance utility and transportation infrastructure projects which are required as a result of growth”, (emphasis added). 13 The Update report also introduced the proposed Contribution Agree- ment: A Contribution and Recovery of Expenses Agreement is proposed to be executed in conjunction with the Servicing and Construction Agreements. The Contribution and Recovery of Expenses Agreement will address expenses incurred by the Municipality which fall outside the provisions of the Municipal Government Act, R.S.A. 2000, Chap- ter M-26 regarding offsite levies. The Contribution and Recovery of Expenses Agreement (Attachment 2) is brought forward for consideration in conjunction with the Off-site Levies and Acreage Assessments. [emphasis added] 14 The Motion passed by Council adopted the off-site levies and acreage assessments set out in the 2009 Report as “the basis for charging off-site levies and acreage assessments in 2009”. The Motion adopted the Contri- bution Agreement as “the basis for charging fees related to other development costs”. It is useful to quote the Motion in its entirety: By Councillor Sands that the 2009 Off-Site Levies and Acreage As- sessments be adopted and form the basis for charging off-site levies and acreage assessments in 2009; and That the Contribution and Re- covery of Expenses Agreement be adopted and form the basis for charging fees related to other development costs. [emphasis added] 8 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

15 The Contribution Agreement is attached as Appendix “A” hereto. It provides for payment on a per acre basis for each subdivision development within the Town of Okotoks, as follows: (a) public facilities fee — $16,225 per acre (b) engineering review and inspection $ 1,760 per acre fee — (c) survey control stations fee — $ 400 per acre (d) water and sewage fee — $ 364 per acre (e) water license acquisition fee — $ 5,000 per acre The cumulative fees are $27,749 per acre.

III. Chambers Judgment 16 The chambers judge asked first whether the application with regard to the Contribution Agreement was premature, since the Developer had not yet been asked to sign such an agreement. She decided that, because the Developer was seeking to have the resolution adopting the Contribution Agreement declared invalid — which it was entitled to do under section 536 of the MGA — and it was not attacking the reasonableness of the terms of the Agreement, the application was not premature. This finding was not contested on appeal. 17 The judge then turned to the standard of review and found that, where the issue was whether the municipality had the jurisdiction to do something, the standard was correctness; whereas, if the question was whether it had exercised its jurisdiction properly, the standard was reasonableness. Applying these criteria to the issues before her, she held that the standard of review regarding the extent of a municipality’s power as a “natural person” was correctness. As for the question of whether the municipality had properly exercised its jurisdiction in imposing the 2009 Off-Site Levy, the standard was reasonableness. 18 She then examined the Contribution Agreement and noted that none of the fees to be paid by developers fell under “the categories of costs” which can be imposed on a developer under an off-site levy bylaw. Thus, in her view, they were not off-site levies as provided in the MGA, but rather were fees collected apart from the MGA. She held that the municipality could rely on its powers as a natural person to make a contract, voluntarily entered into with developers, for payment of fees for off-site facilities and infrastructure which could not be imposed by bylaw. In the end, she concluded that the Contribution Agreement intended to be en- Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 9

tered into with the Town’s developers was of that nature, and properly adopted for that purpose. 19 Finally, the chambers judge turned to the argument that the 2009 Off- Site Levy did not comply with the provisions of the MGA and the Regu- lation. Applying the reasonableness standard, she dismissed these arguments, finding the process employed by the municipality was justifiable, transparent and intelligible. She found, in addition, that the Town’s use of the “but for” test was reasonable, and that the Developer’s argument that the Off-Site Levy failed to expressly allocate the costs of the projects identified among the beneficiaries was not made out on the evidence. She concluded that the Town had complied both with the MGA and the Regu- lation, so that there was no basis for setting the Bylaw aside.

IV. Grounds of Appeal 20 The Developer advances two grounds of appeal. First, it submits that the chambers judge erred in finding the Contribution Agreement was a valid exercise of the municipality’s “natural person” powers. Second, the Developer submits that the chambers judge erred in finding that the 2009 Off-Site levies Bylaw complied with the statutory and regulatory requirements by identifying areas of mutual benefit and allocating costs accordingly.

V. The Standard of Review 21 As this is an appeal involving the legislative actions of a municipal council whose powers are derived solely from statute, there are particular principles that direct the choice of the proper standard. Where the issue involves determining whether the municipality has gone beyond its statutory powers in enacting a bylaw or resolution, the standard of review is correctness. In United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485 (S.C.C.), where the issue was whether the City of Calgary had the authority to issue a bylaw freezing the number of taxi licences issued, Bastarache J. stated at para 5: The only question in this case is whether the freeze on the issuance of taxi plate licences was ultra vires the City under the Municipal Government Act. Municipalities do not possess any greater institutional competence or expertise than the courts in delineating their jurisdiction. Such a question will always be reviewed on a standard of correctness: Nanaimo (City) v Rascal Trucking... 10 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

22 United Taxi Drivers was applied by the Court in its subsequent decision in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.). The Court stated at para 59: “The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction ...”. 23 Where the municipality is acting within its statutory powers, however, its decisions will be afforded deference: Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342 (S.C.C.), at para 35. In addition, modern courts eschew a strict and narrow approach in interpreting statutes granting municipal powers, and take a broad and purposive approach: Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 (S.C.C.), at 244-5; (1994), 110 D.L.R. (4th) 1 (S.C.C.).

VI. Analysis A. Contribution and Recovery of Expenses Agreement 24 The Developer submits that the use of the municipality’s statutory natural person powers cannot be used to circumvent those provisions of the MGA which allow for off-site levies but limit what they can be charged for. This is a direct challenge to the Town’s jurisdiction to approve the Contribution Agreement intended to be entered into with developers for payment of additional charges, and the chambers judge properly found that, because the matter was jurisdictional, the standard of review is correctness. Did she apply this standard correctly? 25 The chambers judge held that the Town had the power to enter into an agreement of the nature in question if it was entered into voluntarily by a developer, but that the Town would exceed its jurisdiction under the MGA if it sought directly or indirectly to require developers to enter into such agreement as a condition of obtaining a development permit or subdivision approval, (para 63). In my view, the chambers judge properly identified the issue. As will be seen, however, I disagree with her conclusion. 26 The Contribution Agreement contemplates that a developer will contribute toward the expenses of off-site facilities and infrastructure for which no levy may be made under section 648 of the MGA. Clause 3 of that agreement contains an express acknowledgment on the part of a developer that the amounts paid thereunder “will be paid and received” apart from the provisions in the MGA governing off site levies, and as “a matter of contract” between a developer and the Town. The Town asserts Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 11

that it is entitled to recover off-site facilities and infrastructure expense, which it cannot obtain through a bylaw, by way of contract pursuant to its natural person powers. 27 The Town’s “natural person” powers are set out in section 6 of the MGA, which states: “A municipality has natural person powers, except to the extent that they are limited by this or any other enactment.” In St. Paul (County) No. 19 v. Belland, 2006 ABCA 55, 380 A.R. 324 (Alta. C.A.), this Court observed that the “new” MGA, in section 6, “now grants a municipality all of the powers of a natural person”, and made specific note that the powers of a municipality are stated in that enactment “in the broadest forms”, (para 4). The Court stated further at para 15: [S]ection 11(1) makes it clear that the power to act by bylaw is in addition to, and not a limitation on, all of the powers of a natural person. If a municipality wishes to do something that a natural person could do, the municipality may do it in any manner that a natural person could. It is only where a municipal government is granted a power to do by bylaw something that a natural person could not do, that the power must be exercised by bylaw. St. Paul also deals with the proper approach to the interpretation of municipal powers. The court held that “the MGA must ... be construed in a broad and purposive manner”, (para 16). 28 In attacking the Contribution Agreement, the Developer does not deny that the Town has the power to enter into agreements as a natural person. It argues, however, that the municipality’s natural person powers cannot be used to circumvent section 648 of the MGA, which prescribes the off-site expenses subject to levy. Its position is succinctly set out as a ground for relief sought under its Originating Notice: The municipality has no power to arbitrarily expand the authority vested in the municipality to approve development or subdivisions by imposing conditions requiring the applicant enter an agreement to recover costs except as expressly authorized by the Act. 29 The chambers judge concluded that the Town was using its natural person powers to seek “to enter into a voluntary agreement to collect levies other than those that it may only collect by bylaw”, (para 60). I agree that the purpose of the Contribution Agreement is to collect off-site levies other than permitted by the bylaw under section 648 of the MGA. However, in my view, the collection of levies by way of contract does not fit comfortably with voluntary contributions. No one doubts the right 12 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

of a municipality to freely negotiate an agreement with a developer, or to receive a gift from a developer if it is legitimately given for an altruistic purpose. The substantive question here, however, is whether the “agreement” adopted by Council was intended to facilitate voluntary contributions towards off-site expenditures, or to coerce developers to make payment of unauthorized levies as a condition of the development process. I have concluded that the Contribution Agreement is a colourable attempt by the Town to impose off-site levies for improvements not allowed by section 648. I explain as follows. 30 The Online Edition of the Oxford English Dictionary defines “levy” as: “the action of collecting an assessment, duty tax, etc.” Paragraph one of the Contribution Agreement, following the recitals, speaks of the per acre sums listed thereafter as “payment ... applicable to each new subdivision development within the Town of Okotoks, which sums will be incorporated in the Development Agreement to be entered into between the Developer and the Town of Okotoks for each phase of subdivision...” There is nothing in this description to suggest either that entering into such an agreement is optional, or that the payments thereunder are intended to be voluntary. 31 Furthermore, an examination of the contextual materials leading to the Town passing the Bylaw and adopting the Contribution Agreement by way of resolution, as well as the terms of those instruments, leave no doubt that the fees payable under the Contribution Agreement are true levies, and are not contributed pursuant to a contract voluntarily entered into by an applicant seeking to develop or subdivide land. 32 Marley Oness, the Municipal Engineer for the Town, in an e-mail to developers dated July 7, 2009, sent prior to the meeting of Council which adopted the Contribution Agreement, advised that the first key issue was that “public facilities assessment was not allowed under the MGA”. He stated: The Town has previously considered Engineering Review and In- spection Fees, Public Facilities Fees, Water Usage Fees, survey fees as development levies which do not fall into the category of offsite levies. They have been charged as Acreage Assessments or additional charges in accordance with Town Council’s direction and in cooperation with the development community. Other municipalities ... address these fees through their Master De- velopment Agreements. In order to address the concern that these fees do not fall under the MGA, the Town will propose to address these fees ... and draft a Master Development Agreement, which Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 13

identifies applicable development fees and this agreement will provide clarity and certainty of development costs. The Master Agree- ment is proposed to be presented to Council for adoption at the Au- gust meeting concurrent to second and third readings of the Levies bylaw. We are proposing that the existing rates for these assessments remain as per the 2008 rates. There will be one additional assessment in 2009 — Water License Acquisition. This assessment is intended to cover costs associated with securing additional water licensing. The rate is still under review. [emphasis added] (Exhibit “C” to Affidavit of Marley Oness, sworn January 15, 2010) 33 The “additional assessment” relating to Water Licensing, in the amount of $5,000 per acre, is included as a “fee” payable by a developer in clause 1(d) of the Contribution Agreement. 34 A further key issue identified by Mr Oness in his e-mail to the developers related to the obligation of the municipality to pay for third party studies. He stated in this regard: Engineering Review and Inspection Fees are charged as assessments to support the effort required to process a subdivision from application through to final acceptance. Third party engineering fees are considered in establishing the rate for engineering and inspection. [emphasis added] This “charge” for engineering review and inspection fee is found in clause 1(b) of the Contribution Agreement at a “fee per acre” of $1,760. 35 Mr Oness, by a further e-mail to developers dated July 10, 2009, forwarded a draft Contribution Agreement which he also referred to as the draft “Master Agreement”. This draft is very similar to the form of agreement subsequently adopted by resolution, with one exception. This draft contained the following paragraph: 5. The Municipality agrees to approach any new developers coming into the Town of Okotoks that are not signatories to this agreement to require that they become signatories to this agreement, and the De- velopers jointly agree that the Municipality may unilaterally add future developers as signatories to this agreement without requiring further agreement of the Developers. [emphasis added] 14 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

While this clause is omitted from the draft adopted by the Town, the intent to require all developers to become signatories remains clearly evident. 36 The Update report provided to Council at the time of its meeting on September 14, 2009, is also telling. It tied the Contribution Agreement to the off-site levies, acreage assessments, and other development fees which are the subject of the 2009 Report. The Update report provided an explanation of the “public facilities fee acreage assessment”, which, at $16,225 per acre, forms the largest “fee” payable under the Contribution Agreement. This particular assessment was identified in the 2009 Report as one that “will be charged on new sub-division development”. It is difficult to reconcile this terminology with an optional or voluntary payment under a contract freely made by a developer. 37 It is useful to quote more fully from the 2009 Report, which explains the purpose and function of the public facilities fee acreage assessment: Public Facilities Fee Acreage Assessment Implementation of a Public Facilities Acreage Assessment Summary/Issue The Town of Okotoks is falling behind in constructing, expanding and/or upgrading public facilities to meet the demands of an expanding population. Okotoks has public facility infrastructure deficit in excess of $40 million. A sampling of the public facility development/expansion requirement of the community to meet population growth requirements as known and identified in 2009 based on pre- design cost estimates include: • Police Services/Fire Services (south) Expansion — $12 million • Outdoor Facilities Upgrades and Expansion — $11 million • Twin Okotoks Centennial Arena — $15 million • Water Spray Park — $750,000 • Off-Leash Park — $250,000 • Rotary Performing Arts Centre Rehabilitation — $1.1 million ... A significant portion of Okotoks fiscal capacity has been devoted to ensuring the Town’s water and sewer utility infrastructure are in place to service population growth. The public facilities acreage assessment that will be charged on new sub-division development will assist in funding these required public facilities and is entirely dedi- cated towards capital projects. A public facilities acreage assessment Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 15

of $16,822 per acre will generate approximately $11 million over Window E and $10.5 million over Window F. [population growth windows] [emphasis added] 38 When cross-examined on his Affidavit, Mr Oness confirmed that, in arriving at this per acreage assessment, “an assumption was made that a certain number of acres would be developed and that each of the developers would enter into an agreement to pay these charges”. Mr Oness characterized the Contribution Agreement as a contractual matter which was not part of the subdivision approval process. It is clear, however, that to raise the revenues contemplated to be collected by the Town each developer was required to pay the “charges” levied under the Public Fa- cilities Fee Acreage Assessment. 39 The 2009 Report also outlined a “procedure for calculating total levy charges”, and stated: “The Levies calculated as outlined in this report will form part of the payments due the Town”, (emphasis added). The significance of this statement is that the “common levies” summarized in this report included the acreage assessments and other development charges payable under the Contribution Agreement. In short, the acreage assessments payable pursuant to the Contribution Agreement are shown as a component of the “common levies”. It is, of course, a contradiction in terms to speak of assessments and levies as voluntary payments. 40 The Town Council also had before it a legal opinion which described the issue as being “the validity of the Town requiring a Contribution and Cost Recovery Agreement to be executed by a Developer as part of the subdivision implementation process”, (emphasis added). 41 I also make reference to the Town Council meeting on September 14, 2009, where Council considered off-site levies and acreage assessments as one topic. The Minutes state: G.1. 2009 Off-site Levies and Acreage Assessments Update Marley Oness, Municipal Engineer, reviewed the report containing the issue that a review and adoption of the Off-Site Levies and Acre- age Assessments is undertaken on an annual basis. 42 Council then passed a resolution adopting the Bylaw containing the proposed off-site levies and acreage assessments, as well as adopting the Contribution Agreement, as the basis for charging off-site levies and acreage assessments in 2009, and for charging fees related to other development. 16 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

43 The Bylaw itself is also instructive. It is entitled, “A Bylaw of the Town of Okotoks in the Province of Alberta to Impose an off-site Levy in Respect of Land that is to be Developed or Subdivided”, and provides in part: 2. The off-site levy shall be in accordance with the rates set out in Schedule B, entitled “Appendix A- Common Levies”, “Appendix — B Site Specific Levies” and “Appendix C — Project Descriptions” which is attached hereto and forms part of this Bylaw. These rates shall be the effective rates for agreements entered into from date of third and final reading to such time as Council approves new off-site levy rates. 3. The object of the levy and the method for determining the amount of the levy shall be as set out in 2009 Off-Site Levies and Acreage Assessments. 4. The Mayor and Municipal Secretary are hereby authorized to enter into agreements in respect of payment of off-site levies. [emphasis added] 44 Appendix A, “Common Levies”, is taken directly from the 2009 Re- port. It includes a summary of the common levies made up of the following components: Summary of 2009 Common Levies (a) Water System — $11,529 per acre (b) Sanitary Sewer System — $ 3,433 per acre (c) Transportation System — $12,290 per acre Common Levies subtotal $27, 252 per acre Summary of 2009 Acreage Assessments (a) Engineering review and inspec- $ 1,760 per acre tion fees — (b) Water license transfers — $ 5,000 per acre (c) Public facilities fees — $16,822 per acre Acreage Assessment Subtotal $23,582 per acre TOTAL $50,834 (per acre) 45 The Update report, after identifying some changes in the levies proposed for 2009, then states: “These changes result in an overall increase in levies/assessments of 5.2%, resulting in a common levy of $50,834.” This passage confirms that the off-site levies sought by the Bylaw to be Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 17

imposed on new development include the acreage assessments to be paid pursuant to the Contribution Agreement. 46 The 2009 Report sets out the “Procedure for Calculation Total Levy Charges”. It states thereunder that “the total levies for a particular project will be calculated as follows”: 1. Determine the area of the proposed development in acres or hectares. 2. Multiply the acres or hectares by the 2009 Common Levy rates. Increase by 25% if development is classified as infill, taking into consideration intensity of use factor if applicable. Add on storm water treatment levy if applicable. 3. Determine the location of the site and identify which site specific levies are applicable. Multiply the acres or hectares by the applicable 2009 Site Specific Levies and any other levies for projects not identified in this report that became apparent during development agreement negotiations. Again, increase totals by 25% on infill development, if applicable. 4. Add the totals for Item 2 and 3, which yield the total cost of common and site specific levies. 47 As can be seen once again, the 2009 common levy rates include the Acreage Assessments and other development charges intended to be paid under the Contribution Agreement. The acreage assessments are “levies” which are required to be paid through the Contribution Agreement. 48 The evidence reviewed above clearly shows that the Acreage Assess- ments included in the Town’s 2009 Common Levy rates on off-site facilities and infrastructure are off-site levies beyond those authorized by section 648 of the MGA. The form of Contribution Agreement adopted by Council was intended to facilitate collection of these levies. Further, the legal opinion relied upon by the Town states that the Contribution Agree- ment would be “required” to be executed by a developer “as part of the subdivision implementation process”. 49 In my view, therefore, the chambers judge erred in finding that the Town was merely using its natural person power “to enter into a voluntary agreement to collect levies other than those that it may only collect by bylaw” (para 60). The overwhelming evidence is that the acreage assessments and other development charges would be “required” to be paid by each developer seeking to develop land through the means of the Con- tribution Agreement. Indeed, the resolution expressly recognizes that the Contribution Agreement is the basis for “charging fees”. Levies are by 18 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

definition neither optional nor voluntary. Here, the clear intent evident from a review of the Town’s own documents is that the fees and charges set out in the Contribution Agreement form part of the Common Levies imposed by the Bylaw and required to be paid by a developer as part of the subdivision and development process. 50 Nor can the Town, in these circumstances, rely upon its natural person powers to collect these unauthorized assessments and levies. The self-serving form and language of the Contribution Agreement cannot be allowed to obscure its purpose of compelling the payment of unauthorized offsite levies. The MGA spells out the facilities and infrastructure for which off-site levies may only be made. The natural person powers cannot be used to impose levies on other facilities and infrastructure. Section 6 of the MGA speaks to the limitation on natural person powers by excepting such powers “to the extent that they are limited” by that enactment. It cannot be supposed that the legislature intended that the Town could impose off-site levies through use of its natural person powers in respect to facilities and infrastructure that are not identified in section 648. 51 Further, natural person powers do not extend to imposing fees or charges, or coercing developers into agreements to “voluntarily” pay for infrastructure deficits. Natural persons have no powers to issue subdivision or development approvals. Here, the Town is exercising its municipal powers which are restricted by the MGA. 52 I agree with the observations of Cooke J. in Bristol Developments (Alberta) Ltd. v. Sturgeon (Municipal District No. 90), [1992] A.J. No. 1458 (Alta. Q.B.), at paras 5-7: Bristol seeks to strike from the Development Agreement executed by the parties certain provisions which Bristol claims are beyond the statutory powers of Sturgeon. Sturgeon on the other hand argues that while the provisions may well be beyond its statutory power it has the power to contract generally. My view generally is that a municipality should not be able to demand as a condition to the execution of a development agreement arising out of a subdivision approval granted by an appeal body the inclusion of terms therein that are beyond its express statutory provisions. It is hard to conceive of more fertile ground for the abuse and oppres- sion of the citizen by the state than to allow that situation to exist where the bargaining positions of the parties are so disparate. Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 19

53 Likewise Professor Laux, in his analysis of municipal contracting powers, remarks in his text: While a municipality has the capacity, due to the natural person powers conferred on it in s. 6 of the Act, to enter into a contract to provide for almost anything in a servicing agreement, it does not have the power to compel a developer to sign a contract to do anything more than is expressly set out in ss. 650, 651 and 655. The natural person power does not enlarge a municipality’s coercive powers. (Frederick A Laux, QC, Planning Law and Practice in Alberta, loose- leaf ((consulted on September 21, 2011)), 3d ed (Edmonton: Juriliber, 2010), at 14-33.) 54 The Town argues that there was no evidence in the record that any developer had been denied subdivision approval because it refused to enter into the Agreement. That is so, but the evidentiary record demonstrates that the Contribution Agreement was the intended means to collect these unauthorized off-site levies, and that the Town intended that each developer who developed land would pay these “fees” and “charges” purportedly imposed pursuant to the Bylaw. The Town has no authority to impose the acreage assessments and other development charges as part of the common levies. 55 The Town submits, further, that the judge’s finding of voluntariness is a finding of fact that is subject to deference. I am not convinced that the finding is strictly one of fact. The Town adduced no evidence that the payment of the acreage assessments and other development fees was optional and voluntary. Rather, the finding arises as a matter of interpretation of the Contribution Agreement and other materials before the court. In any event, however one characterizes the finding, the evidence cited above overwhelms any suggestion that the sums payable under the Con- tribution Agreement were intended to be voluntary, or that entering into the Contribution Agreement was to be optional on the part of a developer. Any contrary finding is palpable error. 56 For these reasons, I have concluded that the form of Contribution Agreement adopted by the Town as a basis for charging acreage assessments and other development costs is a colourable attempt to impose unauthorized off-site levies. In adopting the Contribution Agreement for this purpose, the Town went beyond its jurisdiction. The resolution adopting the Contribution Agreement is, therefore, invalid. 57 I add that I have come to this conclusion with reluctance, as the Town, speaking through its elected representatives, clearly believes that 20 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

it is only fair and proper that the developers (and through them, the new residents of the lands under development) should bear these charges attributable in whole, or in part, to the growth of the Town. However, whether section 648 should be expanded to permit off-site levies for additional facilities and infrastructure than presently provided in the MGA, is a matter for legislative consideration. Further, as will be evident from the next part of this decision, any expansion of the powers would also engage the allocation of benefit as between the new development and the existing development.

B. The Bylaw 58 The Developer’s principal argument is that the Bylaw did not comply with the Regulation, because it failed in many instances to allocate the costs of the new infrastructure and facilities amongst all of the antici- pated users. The issue is framed, as follows, in the Developer’s factum: Do the MGA and Regulation require the application of a “user pay” principle of assessment concerning off-site levies or does it allow levies to be assessed only upon new development which allegedly creates the need for such infrastructure regardless of who benefits? 59 The Developer points out that the majority of the common levies impose the whole of the net cost (after deduction of provincial grants related to these projects) of the new or expanded facilities or infrastructure upon the new development, so that the existing Town residents bear no share of such costs. It says that this burden is imposed upon the developers even when it is clear that the existing residents of the Town will benefit from the new or improved infrastructure. The Developer argues that the failure to allocate a portion of the costs to the Town, where it is clear the Town will benefit, is contrary to the principles and criteria in the Regulation. 60 Before examining the merits of this argument, I turn to consider whether the chambers judge chose the proper standard of review. The chambers judge saw this as being a review of an intra vires action — the imposition of an off-site levy — for which the standard of review was reasonableness. With respect, I disagree. The Developer is alleging that the Town went beyond its statutory authority by enacting a bylaw that did not contain certain mandatory elements, described in section 3 of the Regulation. This is a challenge to the Town’s legislative jurisdiction, which, as the Supreme Court pointed out in United Taxi Drivers, attracts the standard of correctness. In particular, the question is whether the By- Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 21

law itself complied with the MGA and the Regulation, which is a matter of law and jurisdiction. 61 The application of the proper standard requires determination of the scope of the Town’s authority to enact a bylaw containing off-site levies, having regard to the statutory requirements found in the MGA and the Regulation. In particular, I must ask whether section 3 of the Regulation requires that an off-site levy bylaw contain an allocation of benefit and cost where the off-site improvement benefits both the municipality and the development. 62 The Regulation does not explicitly direct a proportionate division of costs between a developer and a municipality. In fact, a strange choice of words is used in section 3(3) of the Regulation. It requires that “all beneficiaries of development are to be given the opportunity to participate in the cost of providing and installing infrastructure in the municipality on an equitable basis related to the degree of benefit”. It seems unlikely that all beneficiaries of development would look upon sharing in the costs as an “opportunity to participate”. Further, it is unusual to foist an “opportunity”, as distinct from providing one which may or may not be accepted. 63 It would be wrong, however, to read subsection (3) in isolation. Sub- section (5) of section 3 of the Regulation speaks in terms of there being “a correlation between the levy and the impacts of new development”, and subsection 9(a) of section 3 speaks of “benefiting areas”. The latter presumably refers to areas within the municipality that benefit from the new or expanded infrastructure and facilities. 64 Interpreting the principles and criteria of the Regulation as a whole, it is reasonable to divine an intent that those benefiting from the types of infrastructure and facilities identified in section 648 should contribute to their costs. As observed by Professor Laux at 14-40, fn 203, of his text: In practice, the type of facilities described in s. 648(2) are likely to benefit not just new developments and subdivisions, but also the existing community. For that reasons, fairness dictates that a municipality ought not to place the burden of the entire costs of the facilities on newcomers. 65 In Keyland Developments Corp. v. Cochrane (Town), 2007 ABQB 160, 32 M.P.L.R. (4th) 180 (Alta. Q.B.), McIntrye J. quashed the municipality’s off-site levy because it cast substantially the whole of the cost of certain off-site projects upon the developer, when it was apparent that the project benefited residents not only of the proposed new development, but also existing residents of the Town. He held at para 24: “The Regula- 22 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

tion mandates a sharing of cost based on the benefits obtained. Most importantly, there must be a correlation between the levy and the impacts of the development.” 66 McIntyre J. held the bylaw to be ultra vires, because it failed to comply with the Regulation. He explained at para 25: I do not see in the Bylaw an articulation of the benefits, that is, the degree of benefit that new infrastructure will provide to each of the municipality and the developers. For example, there is no articulation of benefit to the town of the new pumping station nor of the twinning of the waste disposal pipeline as required by subsections 3(3). It may be that there is no benefit to the town; although I do not see how an improvement to the waste disposal system could not benefit the town as a whole. It may be that the Town’s position is that there is no benefit, that infrastructure improvements will only keep pace with development, and only for the areas south of the river. It seems odd however that a bridge to the south side of the river, on the town’s approach to the calculation of the levy, would only benefit the development south of the river, and nothing north. As counsel for the Ap- plicant said, it is not a one-way bridge. If there is a need for such a bridge, as the Town has long believed and said, I would have thought that there would be an evident benefit to residents north of the river to visit residents south of it. If there is no benefit, I would expect to see that expressed in the determination of the levy as required in section 649 of the Act. I do not think the Town can simply say that which it has eventually said here, that is, for infrastructure improvements of $51,766,000 the Town will benefit to a value of $350,000 (without disclosing how that number is arrived at). It is essentially saying there is no benefit. The Regulation speaks of shared responsibility and benefit. Suggesting, as the Town does by this minuscule contribution, that there is no benefit is not an exercise of jurisdiction, to which the Town is entitled deference, but an abdication of jurisdiction and responsibility as prescribed by the Act and Regulation. 67 The Town has cited the decision in Urban Development Institute v. Leduc (City), 2006 ABQB 952, [2008] A.W.L.D. 2478 (Alta. Q.B.), as interpreting the Regulation in a contrary fashion. In Urban Development, Agrios J. refused to declare a bylaw invalid that required the developer to pay off-site levies in relation to expanded road and water services for new developments. It appears that the City, in that case, allocated the costs of the expanded facilities to the new development on the principle that the costs would not have been incurred but for the new development. Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 23

68 The Regulation is not referred to in Urban Development. The chambers judge, in that case, rejected the developer’s so-called “user pay” argument. In doing so, however, he simply stated that he accepted “the reasons explained by the City’s Counsel” without setting forth those reasons. In any event, the judge concluded at para 21: I have also accepted arguments that the form of the bylaw is in compliance with the Act, and from the information placed before me, the City has endeavoured to rationally apportion the new costs. To repeat once again, the City has not been irrational. He added at para 23: In summary, the City bylaw based on the premise that new development ought to pay for the increased costs by new development is rational and appropriate. 69 There is no discussion in Urban Development of shared benefits, nor, I repeat, of the Regulation. It may well be that the judge was satisfied by the City that, in the circumstances before him, the expanded facilities gave no real benefit to the existing residents. If that is so, his judgment is consistent with Keyland. 70 In any event, I agree with McIntyre J. that, in determining whether or not the bylaw complies with the Regulation, it is necessary to address the issue of benefit. The Town is not entitled to offload the whole of the costs of new or expanded off-site infrastructure and facilities upon a developer, in circumstances where it is reasonable to suppose that the existing residents will share in the benefit. In other words, a municipality is not entitled to allocate the whole of the off-site costs of new or expanded infrastructure or facilities upon new development, unless it can be reasonably supposed that the existing residents derive no benefit therefrom. 71 I do not find the term “user pay” to be of much assistance. The Regu- lation speaks in terms of “degree of benefit”, not in terms of “use”. It may well be that use demonstrates benefit, but certainly not in all instances. It is difficult to understand why a new facility necessarily benefits existing residents, even if they use it, if it merely replaces an existing facility that was entirely adequate to the needs of the existing residents, and which would not have required replacement except to serve the new development. “New” does not always mean better or an added benefit. 72 Nor do I find the so-called “but for” test to be determinative, i.e., requiring the new development to pay for all the costs of new infrastructure or facilities in situations where the projects would not have been undertaken but for the new development. The Regulation does not speak 24 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

in such terms. Rather, the issue is benefit, not necessarily what prompted obtaining the benefit. For example, a new facility may result in greater reliability of service, improved quality of service or longer lifetime of the service. If existing residents derive such benefits, then they should contribute to the costs of the new development whether or not occasioned by new development. It is the responsibility of the municipality enacting an off-site levy bylaw to address the issue of the respective degree of benefit between existing residents and the new development, and allocate the costs in a reasonable and responsible manner. In addition, it must include this allocation in the bylaw. 73 In the case at bar, the chambers judge noted that the Town shared in the costs of the new or expanded facilities with respect to certain projects where Council recognized that the existing residents benefited through increased reliability of the water delivery system as well as through the expansion of the municipality’s sanitary sewer system pollution control centre, (para 80). I agree with her that it is apparent that Council addressed the issue of shared responsibility for shared benefits in these instances. 74 The Developer points out, however, that new development is required under the Bylaw to pay the whole of the cost of the new or expanded off- site infrastructure or facilities with respect to the majority of projects. It appears from her reasons that the chambers judge accepted that the Council had reasonably determined that there was no benefit to existing residents from those projects, and I accept her findings in this regard. 75 It is significant that the Developer,for the most part, adduced no evidence demonstrating the benefit of the projects in question to the existing residents of the Town. The burden of proof lay, of course, with the De- veloper seeking the declaration of the Bylaw’s invalidity: Ian MacF Rog- ers, QC, The Law of Canadian Municipal Corporations, loose-leaf (consulted on September 20, 2011), 2d ed (Toronto: Carswell, 2009), at para 190.3. Having regard to the record before us, and with the exception for the bridge and corridor projects discussed below, I conclude that there is no basis for interfering with the implicit finding of the chambers judge that the Town appropriately allocated costs between the Town and the Developers and, in doing so, took benefits between the new development and existing residents into appropriate consideration. 76 The exception that I make relates to the 32nd Street Bridge and roadway corridor projects, which are identified in the bylaw as CT19, CT20 and CT21. The designation CT references “common transportation”. The Prairie Communities Development Corp. v. Okotoks Clifton O’Brien J.A. 25

estimated cost of these projects totals $46,770,000. The Bylaw discloses that the net cost of the bridge and related works, after deductions for provincial grants and other contributions, is to be borne wholly by new development. (It should perhaps be pointed out that the chambers judge deals only with CT19 (at para 81) and appears to have overlooked the other two projects, which Mr Oness confirmed in his cross-examination are related one to the other.) 77 The Town acknowledged that the existing residents will benefit from the bridge and corridor. In its 1998 — 2003 Municipal Development Plan Review, it concluded: 4. The improvement of 32nd Street, including the critical link across the Sheep River, is absolutely vital to ensure the development of existing and planned industrial areas. Further, Mr Oness agreed that the construction of the new bridge, which included an overpass over an existing railway line, would be advanta- geous to the Town’s existing emergency services. 78 In short, the Town admitted that there are shared benefits arising from the bridge and corridor (but it has not set this out in the Bylaw), nor has it allocated the sharing of costs. Mr Oness, in the cross-examination of his affidavit, attempted to justify the exclusion of contribution by the Town firstly on the basis that the Town would bear the future cost of expanding the bridge and corridor to four lanes, and secondly on the ground that the Town would be absorbing carrying costs on monies borrowed to carry out these projects. 79 In my view, the explanation proffered by Mr Oness is not adequate to relieve the Town from contributing to the cost of these projects. The By- law fails to disclose the methodology adopted by the Town for making its proposed contribution at some future time through widening of the bridge and corridor roads, nor is there certainty that the Town will ever share in these costs. While Mr Oness spoke of negotiations at unspecified times in the past with unspecified developers, there is no contractual commitment, nor is there evidence of any understanding in that regard with the Developer. Further, the intention of the present administration does not bind future administrations. The Town may be successful in obtaining future grants to cover the whole of future widening, if and when it is ever carried out. Further, it seems likely that the new development expected to bear the costs of the current projects will also participate, as residents of the Town, in paying for the widening if and when it occurs. In any event, none of these matters are addressed in the Bylaw. As for 26 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

carrying charges, section 648(2) speaks only in terms of an off-site levy being used to pay for all or part of the “capital costs” of certain new or expanded facilities or infrastructure. 80 The intention of the town planners that the Town pay the whole of the costs of future widening projects, if carried out, does not satisfy the principles and criteria for off-site levies as set out in the Regulation. The Bylaw does not address the sharing of costs between the new development and the Town on an equitable basis related to the degree of benefit. In fact, the common levies made under the Bylaw with respect to these projects give no recognition whatsoever to allocation of cost based upon degree of benefit. The Town has failed to comply with the Regulation in relation to the off-site levies for the bridge and corridor roads, and conse- quently common levies for projects CT19, CT20 and CT21 are declared invalid. These parts of the Bylaw are separate, so are neither integral nor indispensable parts of the whole, so that severance is appropriate in this instance: Rogers at para 195.7.

VII. Conclusion 81 The appeal is allowed in part. The portion of the Town’s Resolution adopting the Contribution Agreement is declared invalid. Those parts of the Bylaw imposing levies with respect to the 32nd Street Bridge and roadway corridor (CT 19, CT20 and CT21) are declared to be invalid, and the Bylaw is quashed to that extent.

Marina Paperny J.A.:

I concur:

Keith Ritter J.A.:

I concur: Appeal allowed in part. Prairie Communities Development Corp. v. Okotoks Keith Ritter J.A. 27

Appendix A

CONTRIBUTION AND RECOVERY OF EXPENSES AGREEMENT MEMORANDUM OF AGREEMENT made this ______day of ______, 2009 BE- TWEEN: THE TOWN OF OKOTOKS A Municipal Corporation, incorporated Pursuant to the laws of Alberta (hereinafter referred to as the “Municipality”) OF THE FIRST PART AND: (hereinafter referred to as the “Developer”) OF THE SECOND PART RECITALS 1. The Developer and the Municipality agree that it would be beneficial to the Municipality in general and would enhance the marketability of developments constructed by the Devel- oper within the Town of Okotoks, if the Municipality were to provide additional recreational and public facilities; 2. The Developer and the Municipality agree that the Municipal- ity in the subdivision and development process incurs otherwise non-recoverable expenses which costs would in the usual course be taxed, in part, upon the purchasers of lots within the development areas. NOW THEREFORE in consideration of the mutual covenants and undertakings herein provided, the Municipality and the Developer agree as follows: 1. The Developer and the Municipality have negotiated the payment of the following sums on a per acre basis, applicable to each new subdivision development within the Town of Okotoks, which sums will be incorporated into the Develop- 28 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

ment Agreement to be entered into between the Developer and the Town of Okotoks for each phase of subdivision: a) Public Facilities Fee: $16,225/acre The Municipality covenants and agrees that the funds collected from the Public Facilities Fee will be utilized to finance the construction and development of new public facilities within the Town of Okotoks, and for no other purpose. b) Engineering Review and Inspection Fee: $1,760/acre The Municipality incurs expenses in engineering and inspection services; the Municipality requires in implementing the Development Agreements, including but not limited to the review and approval of plans, site inspections etc. This fee per acre is to compensate the Municipality for expenses incurred on a development by development basis. c) Survey Control Stations Fee: $ 400/acre The Municipality incurs expenses in installing or having installed survey control stations. d) Water Usage Fee: $ 364/acre The Developer utilizes water from the Municipality’s water system, unmetered, during the construction of the subdivision improvements. This fee approximates the cost of water used, and is to compensate the Municipality for the water consumed during development. e) Water License Acquisition Fee: $5000/acre As part of the Municipality ensuring that sufficient water sup- ply is available to accommodate future development within the Town of Okotoks, the Municipality will be acquiring water licenses, the cost of which is attributable to the developments contemplated by this Agreement. A fee will be charged back with each development to recover the costs incurred by the Municipality in acquiring those licenses to accommodate such development. 2. The Developer agrees that for each new subdivision development, as part of the Development Agreement, they will pay to the Municipality in accordance with the terms and provisions of the Development Agreement, the above fees per acre for the total acres being subdivided in the development. 3. The Developer acknowledges and agrees that the amounts to be paid pursuant to this Agreement for each development will be paid and received apart from the Municipal Government Prairie Communities Development Corp. v. Okotoks Keith Ritter J.A. 29

Act, R.SA 2000, Chapter M-26 provisions regarding offsite levies, and are a matter of contract between the Developer and the Municipality. The Developer acknowledges that these amounts are being paid to compensate the Municipality for expenses that are or will be incurred by the Municipality as set out above. 4. The Municipality agrees that the above fees will not be changed or increased without the express written agreement of the Developer. The term of this Agreement shall be for a term of one (1) year or until such time as a replacement Con- tribution and Recovery of Expenses Agreement is adopted by Council and executed by the Developer. 5. The Developer and the Municipality jointly covenant and agree to negotiate in good faith towards a replacement Agree- ment, including negotiating the level of fees to be paid. THIS AGREEMENT HAS BEEN EXECUTED THE DAY AND DATE FIRST ABOVE WRITTEN. TOWN OF OKOTOKS DEVELOPER ______Mayor ______Municipal Manager (C/S) 30 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

[Indexed as: London Property Management Assn. v. London (City)] London Property Management Association, Applicant and The Corporation of the City of London, Respondent and Information and Privacy Commissioner of Ontario, Intervener Ontario Superior Court of Justice Docket: 2263/2010 2011 ONSC 4710 L.C. Leitch J. Heard: May 10, 2011 Judgment: September 30, 2011 Municipal law –––– Attacks on by-laws and resolutions — Grounds — Ultra vires — Duplicity — Provincial legislation –––– Preamble to by-law provided that city considered it necessary to regulate renting of residential premises for purpose of protecting health and safety of renters by insuring that regulations were met; that required essentials, such as plumbing, heating and water were provided; that residential rental premises did not create nuisance to surrounding properties and neighbourhood; and, to protect residential amenity, character and stability of residential areas — By-law prohibited operation of rental unit without license issued under by-law, valid for one year, but subject to renewal, suspension, revocation, or imposition of conditions — By-law required license, with licensee’s name, address, and phone number, to be prominently displayed — Applicant LPMA took position that city determined to utilize by-law to resolve student housing issues — LPMA brought application pursuant to s. 273(1) of Municipal Act, 2001 (MA) to quash by-law on grounds that it violated s. 14 of MA in that it conflicted with superior Provincial legislation, namely Residential Tenancies Act, 2006 (RTA), Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), Human Rights Code, and MA — Applica- tion dismissed — By-law did not conflict with RTA — Purpose of RTA set out in s. 1 of RTA supported notion that by-law, which regulated rights of landlords vis-`a-vis city, was regulating different conduct — Legislature did not preclude other acts from dealing with units in residential complexes — While LPMA asserted that conflict could arise if failure to get license resulted in tenant eviction, by-law did not discuss what happened to tenant if license was refused or revoked, and judge was not satisfied that dual compliance was not possible or that RTA was frustrated — By-law contained no provisions which evicted tenants — By-law did not contravene Code — By-law applied throughout city, did not target any particular person or group of people or whether or not housing was af- London Property Management Assn. v. London (City) 31 fordable, rather, it targeted specific types of dwellings — By-law did not conflict with MFIPPA which protects personal information because information requested came within exclusion set out in s. 2(2.1) of MFIPPA — Contact information identified individual in business capacity — By-law did not conflict with MA by unlawfully delegating municipal powers — By-law provided exhaustive list of factors for licence manager to consider, and only where one of those enumerated grounds was satisfied, could license manager refuse, suspend or revoke license — Furthermore, by-law provided for right of appeal. Municipal law –––– Attacks on by-laws and resolutions — Grounds — Bad faith –––– On January 1, 2007, Province of Ontario enabled municipalities to pass business licensing by-law regulating residential rental units — Preamble to by-law provided that city considered it necessary to regulate renting of residential premises for purpose of protecting health and safety of renters by insuring that regulations were met; that required essentials, such as plumbing, heating and water were provided; that residential rental premises did not create nuisance to surrounding properties and neighbourhood; and, to protect residential amenity, character and stability of residential areas — By-law prohibited anyone from operating rental unit without holding current valid license issued under by-law, valid for one year, but subject to renewal, suspension, revocation, or imposition of conditions — Applicant LPMA took position that city determined to utilize by-law to resolve issues relating to student housing — LPMA brought application pursuant to s. 273(1) of Municipal Act, 2001 to quash by-law on grounds that it was enacted in bad faith — Application dismissed — LPMA failed to show that by-law was enacted in bad faith — City was not trying to prohibit particular business or stop it from operating in particular areas, rather, by-law applied city-wide — By-law was regulating business. Municipal law –––– Attacks on by-laws and resolutions — Grounds — Un- certainty — Business regulation –––– On January 1, 2007, Province of Ontario enabled municipalities to pass business licensing by-law regulating residential rental units — Preamble to by-law provided that city considered it necessary to regulate renting of residential premises for purpose of protecting health and safety of renters by insuring that regulations were met; that required essentials, such as plumbing, heating and water were provided; that residential rental premises did not create nuisance to surrounding properties and neighbourhood; and, to protect residential amenity, character and stability of residential areas — By- law prohibited anyone from operating rental unit without holding current valid license issued under by-law, valid for one year, but subject to renewal, suspension, revocation, or imposition of conditions — Applicant LPMA took position that city determined to utilize by-law to resolve issues relating to student housing — LPMA brought application pursuant to s. 273(1) of Municipal Act, 2001 to quash by-law on grounds that it was vague and/or uncertain — Application dismissed — By-law did not contain sections that were so vague and/or uncer- 32 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th) tain that they should be quashed — Absence of definitions for terms “person” and “operate” was not strong enough to meet standard for vagueness — Reason- ably intelligent person could likely determine if they were person who was operating rental unit — Inconsistency in use of terms was not so serious as to make it impossible to determine meaning of by-law. Cases considered by L.C. Leitch J.: Adult Entertainment Assn. of Canada v. Ottawa (City) (2007), 33 M.P.L.R. (4th) 1, 2007 ONCA 389, 2007 CarswellOnt 3190, 224 O.A.C. 267, 283 D.L.R. (4th) 704, 156 C.R.R. (2d) 61, [2007] O.J. No. 2021 (Ont. C.A.) — considered Allen v. Canada (Human Rights Commission) (1992), 92 C.L.L.C. 17,045, (sub nom. Allen v. Canadian Human Rights Commission) 59 F.T.R. 155, 1992 CarswellNat 800, [1992] F.C.J. No. 934 (Fed. T.D.) — considered Bayfield (Village) v. MacDonald (1997), 1997 CarswellOnt 1559, 100 O.A.C. 42, 39 M.P.L.R. (2d) 63, [1997] O.J. No. 1892 (Ont. C.A.) — considered Brantford (City) Public Utilities Commission v. Brantford (City) (1998), (sub nom. Public Utilities Commission of Brantford v. Brantford (City)) 108 O.A.C. 24, 36 O.R. (3d) 419, 1998 CarswellOnt 274, 44 M.P.L.R. (2d) 151, [1998] O.J. No. 235 (Ont. C.A.) — considered C.B. Powell Ltd. c. Canada (Agence des services frontaliers) (2010), 2010 Car- swellNat 1197, 2010 CAF 61, [2011] 2 F.C.R. 332, (sub nom. Powell (C.B.) Ltd. v. Canada Border Services Agency (President)) 400 N.R. 367, 2010 FCA 61, 2010 CarswellNat 391, [2010] F.C.J. No. 274 (F.C.A.) — considered Canada v. Pharmaceutical Society (Nova Scotia) (1992), 15 C.R. (4th) 1, (sub nom. R. v. Nova Scotia Pharmaceutical Society) 93 D.L.R. (4th) 36, (sub nom. R. v. Nova Scotia Pharmaceutical Society) [1992] 2 S.C.R. 606, (sub nom. R. v. Nova Scotia Pharmaceutical Society) 43 C.P.R. (3d) 1, (sub nom. R. v. Nova Scotia Pharmaceutical Society) 74 C.C.C. (3d) 289, (sub nom. R. v. Nova Scotia Pharmaceutical Society) 10 C.R.R. (2d) 34, (sub nom. R. v. Nova Scotia Pharmaceutical Society (No. 2)) 139 N.R. 241, (sub nom. R. v. Nova Scotia Pharmaceutical Society (No. 2)) 114 N.S.R. (2d) 91, 1992 Car- swellNS 15, 313 A.P.R. 91, 1992 CarswellNS 353, EYB 1992-67391, [1992] S.C.J. No. 67 (S.C.C.) — considered Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 1995 CarswellNat 264, 1995 CarswellNat 700, 26 Admin. L.R. (2d) 1, (sub nom. Matsqui Indian Band v. Canadian Pacific Ltd.) [1995] 2 C.N.L.R. 92, 122 D.L.R. (4th) 129, 85 F.T.R. 79 (note), [1995] 1 S.C.R. 3, 177 N.R. 325, [1995] S.C.J. No. 1 (S.C.C.) — considered Cash Converters Canada Inc. v. Oshawa (City) (2007), 2007 CarswellOnt 4229, 2007 ONCA 502, 86 O.R. (3d) 401, 67 Admin. L.R. (4th) 103, 35 M.P.L.R. (4th) 161, 226 O.A.C. 104, [2007] O.J. No. 2613 (Ont. C.A.) — followed London Property Management Assn. v. London (City) 33

Corbiere v. Canada (Minister of Indian & Northern Affairs) (1999), 163 F.T.R. 284 (note), 1999 CarswellNat 663, 1999 CarswellNat 664, (sub nom. Canada (Minister of Indian & Northern Affairs) v. Corbiere) 61 C.R.R. (2d) 189, (sub nom. Corbi`ere v. Canada (Minister of Indian & Northern Affairs)) 173 D.L.R. (4th) 1, 239 N.R. 1, [1999] 3 C.N.L.R. 19, [1999] 2 S.C.R. 203, [1999] S.C.J. No. 24 (S.C.C.) — considered Country Pork Ltd. v. Ashfield (Township) (2002), 60 O.R. (3d) 529, 9 R.P.R. (4th) 182, 2002 CarswellOnt 2492, 162 O.A.C. 223, 31 M.P.L.R. (3d) 1 (Ont. C.A.) — considered Croplife Canada v. Toronto (City) (2005), 2005 CarswellOnt 1877, 254 D.L.R. (4th) 40, 75 O.R. (3d) 357, 10 M.P.L.R. (4th) 1, 14 C.E.L.R. (3d) 207, 198 O.A.C. 35, [2005] O.J. No. 1896 (Ont. C.A.) — followed Fountainhead Fun Centres Ltd. c. Montr´eal (Ville) (1985), (sub nom. Montreal (Ville) v. Arcade Amusements Inc.) [1985] 1 S.C.R. 368, (sub nom. City of Montreal v. Arcade Amusements Inc.) 18 D.L.R. (4th) 161, (sub nom. Montreal v. Arcade Amusements Inc.) 29 M.P.L.R. 220, (sub nom. Arcade Amusements Inc. v. Montreal) 58 N.R. 339, 1985 CarswellQue 107, 1985 CarswellQue 54, [1985] S.C.J. No. 16 (S.C.C.) — followed Grosvenor v. East Luther Grand Valley (Township) (2007), 53 R.P.R. (4th) 161, 219 O.A.C. 381, 84 O.R. (3d) 346, 2007 CarswellOnt 337, 278 D.L.R. (4th) 483, 32 M.P.L.R. (4th) 1, 2007 ONCA 55, [2007] O.J. No. 241 (Ont. C.A.) — considered H.G. Winton Ltd. v. North York (Borough) (1978), 1978 CarswellOnt 491, 20 O.R. (2d) 737, 88 D.L.R. (3d) 733, 6 M.P.L.R. 1, [1978] O.J. No. 3488 (Ont. Div. Ct.) — considered Hendershott v. Ontario (Ministry of Community & Social Services) (March 10, 2011), Leslie Reaume V-Chair, [2011] O.H.R.T.D. No. 478 (Ont. Human Rights Trib.) — considered Khan v. Metroland Printing, Publishing & Distributing Ltd. (2003), 178 O.A.C. 201, 68 O.R. (3d) 135, 2003 CarswellOnt 4087, 44 C.P.C. (5th) 110, [2003] O.J. No. 4261 (Ont. Div. Ct.) — followed Khan v. Metroland Printing, Publishing & Distributing Ltd. (2005), 2005 Cars- wellOnt 1751, 253 D.L.R. (4th) 265, 199 O.A.C. 80, 75 O.R. (3d) 165, 13 C.P.C. (6th) 391, [2005] O.J. No. 1787 (Ont. C.A.) — referred to Law Society (British Columbia) v. Mangat (2001), 157 B.C.A.C. 161, 256 W.A.C. 161, 16 Imm. L.R. (3d) 1, 205 D.L.R. (4th) 577, 2001 SCC 67, 2001 CarswellBC 2168, 2001 CarswellBC 2169, 276 N.R. 339, [2002] 2 W.W.R. 201, 96 B.C.L.R. (3d) 1, [2001] 3 S.C.R. 113, [2001] S.C.J. No. 66, REJB 2001-26158 (S.C.C.) — considered Nanaimo (City) v. Rascal Trucking Ltd. (2000), 20 Admin. L.R. (3d) 1, 183 D.L.R. (4th) 1, 2000 CarswellBC 392, 2000 CarswellBC 393, 2000 SCC 13, 251 N.R. 42, 132 B.C.A.C. 298, 215 W.A.C. 298, [2000] 1 S.C.R. 342, 34 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

[2000] 6 W.W.R. 403, 76 B.C.L.R. (3d) 201, 9 M.P.L.R. (3d) 1, [2000] S.C.J. No. 14 (S.C.C.) — followed Neighbourhoods of Windfields Ltd. Partnership v. Death (2008), 2008 Carswell- Ont 5025, 49 M.P.L.R. (4th) 183, [2008] O.J. No. 3298 (Ont. S.C.J.) — referred to Nistap Development Corp. v. McIntyre (2009), 2009 CarswellOnt 4125, [2009] O.J. No. 2960 (Ont. Div. Ct.) — distinguished North Vancouver Shops Regulation By-law, Re (1972), [1972] 2 W.W.R. 625, 24 D.L.R. (3d) 305, 1972 CarswellBC 52 (B.C. S.C.) — considered Ontario (Director of Disability Support Program) v. Tranchemontagne (2010), 2010 ONCA 593, 2010 CarswellOnt 6821, 12 Admin. L.R. (5th) 179, 102 O.R. (3d) 97, 324 D.L.R. (4th) 87, (sub nom. Tranchemontagne v. Disability Support Program (Ont.)) 269 O.A.C. 137, [2010] O.J. No. 3812 (Ont. C.A.) — followed Outdoor Neon Displays Ltd. v. Toronto (City) (1960), 22 D.L.R. (2d) 241, 1960 CarswellOnt 60, [1960] S.C.R. 307 (S.C.C.) — considered Prince George (City) v. Payne (1977), [1978] 1 S.C.R. 458, [1977] 4 W.W.R. 275, 1977 CarswellBC 366, 1977 CarswellBC 493, 15 N.R. 386, 2 M.P.L.R. 162, 75 D.L.R. (3d) 1 (S.C.C.) — considered Reference re Municipal Freedom of Information & Protection of Privacy Act (Ontario) (2011), 81 M.P.L.R. (4th) 95, 2011 ONSC 1495, 2011 Carswell- Ont 1581, [2011] O.J. No. 1071 (Ont. S.C.J.) — considered Reynolds v. Ontario (Registrar, Information & Privacy Commissioner) (2006), 27 M.P.L.R. (4th) 24, 2006 CarswellOnt 6718, 55 Admin. L.R. (4th) 83, (sub nom. Reynolds v. Binstock) 217 O.A.C. 146, [2006] O.J. No. 4356 (Ont. Div. Ct.) — considered RSJ Holdings Inc. v. London (City) (2007), 2007 SCC 29, 2007 CarswellOnt 3919, 2007 CarswellOnt 3920, 364 N.R. 362, 36 M.P.L.R. (4th) 1, [2007] 2 S.C.R. 588, 283 D.L.R. (4th) 257, 226 O.A.C. 375, [2007] S.C.J. No. 29 (S.C.C.) — followed Sacré-Coeur (Municipalité) c. Lacombe (2010), (sub nom. Lacombe v. Sacré- Coeur) 324 D.L.R. (4th) 625, 2010 CarswellQue 10210, 2010 CarswellQue 10211, 2010 SCC 38, (sub nom. Quebec (Attorney General) v. Lacombe) 407 N.R. 1, (sub nom. Québec (Procureur général) c. Lacombe) [2010] 2 S.C.R. 453, 75 M.P.L.R. (4th) 1 (S.C.C.) — referred to Stone v. Metropolitan Toronto Housing Authority (1987), 59 O.R. (2d) 605, 1987 CarswellOnt 427, 19 C.P.C. (2d) 31, [1987] O.J. No. 1504 (Ont. Dist. Ct.) — distinguished Uukkivi v. Lake of Bays (Township) (2004), 2004 CarswellOnt 4494, 2 M.P.L.R. (4th) 240, [2004] O.T.C. 970, [2004] O.J. No. 4479 (Ont. S.C.J.) — considered Vic Restaurant Inc. v. Montreal (City) (1958), [1959] S.C.R. 58, 17 D.L.R. (2d) 81, 1958 CarswellQue 49 (S.C.C.) — considered London Property Management Assn. v. London (City) 35

Wong v. University of Toronto (1990), 45 Admin. L.R. 113, 1990 CarswellOnt 825, 79 D.L.R. (4th) 652, [1989] O.J. No. 979 (Ont. Dist. Ct.) — referred to 114957 Canada Ltée (Spray-Tech, Société d’arrosage) v. Hudson (Ville) (2001), (sub nom. 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town)) 200 D.L.R. (4th) 419, 19 M.P.L.R. (3d) 1, 40 C.E.L.R. (N.S.) 1, 271 N.R. 201, 2001 SCC 40, 2001 CarswellQue 1268, 2001 CarswellQue 1269, (sub nom. 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town)) [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, REJB 2001-24833 (S.C.C.) — considered 2027625 Ontario Ltd. v. Kitchener (City) (2007), 2007 CarswellOnt 7215, 39 M.P.L.R. (4th) 250, [2007] O.J. No. 4319 (Ont. S.C.J.) — considered Statutes considered: Building Code Act, 1992, S.O. 1992, c. 23 Generally — referred to Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to Canadian Human Rights Act, R.S.C. 1985, c. H-6 Generally — referred to Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 Generally — referred to Human Rights Code, R.S.O. 1990, c. H.19 Generally — referred to s. 2 — considered s. 2(1) — considered s. 9 — referred to Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to Landlord and Tenant Act, R.S.O. 1980, c. 232 s. 113 — referred to Legal Profession Act, S.B.C. 1987, c. 25 Generally — referred to Municipal Act, 2001, S.O. 2001, c. 25 Generally — referred to s. 8 — considered s. 9 — considered s. 10 — referred to s. 10(1) — considered s. 10(2) — considered s. 11 — referred to s. 14 — considered s. 14(1) — considered s. 14(2) — considered 36 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

s. 23.1 [en. 2006, c. 32, Sched. A, s. 15] — considered s. 23.2 [en. 2006, c. 32, Sched. A, s. 15] — considered s. 23.2(1) [en. 2006, c. 32, Sched. A, s. 15] — considered s. 23.2(1)(c) [en. 2006, c. 32, Sched. A, s. 15] — considered s. 23.2(2) [en. 2006, c. 32, Sched. A, s. 15] — considered s. 23.2(4) [en. 2006, c. 32, Sched. A, s. 15] — considered s. 23.2(5) [en. 2006, c. 32, Sched. A, s. 15] — considered s. 151 — considered s. 151(1)(d) — considered s. 273 — considered s. 273(1) — pursuant to s. 273(5) — considered Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 Generally — referred to s. 1(b) — considered s. 2(1) “personal information” — considered s. 2(1) “personal information” (d) — considered s. 2(2.1) [en. 2006, c. 34, Sched. C, s. 13(3)] — considered s. 28(2) — considered s. 31 — considered Residential Tenancies Act, 2006, S.O. 2006, c. 17 Generally — referred to Pt. 4 — referred to s. 1 — considered s. 3 — considered s. 4 — considered s. 18 — considered s. 37 — considered s. 49 — referred to s. 50 — referred to Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 Generally — referred to Tenant Protection Act, 1997, S.O. 1997, c. 24 Generally — referred to Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Generally — referred to

APPLICATION pursuant to s. 273(1) of Municipal Act, 2001 to quash by-law providing for licensing and regulation of residential rental units in city.

Joe Hoffer, for Applicant London Property Management Assn. v. London (City) L.C. Leitch J. 37

Janice L. Page, for Respondent David Goodis, for Intervener

L.C. Leitch J.:

1 This is an application under s. 273(1) of the Municipal Act, 2001, S.O. 2001, c. 25 to quash By-law CP-19, a by-law of the Corporation of the City of London (the “City”) to provide for the licensing and regulation of residential rental units in the City (the “Licensing By-law”). 2 Section 273 of the Municipal Act permits any person to bring an application before this court to quash a by-law in whole or in part for illegality. Section 273(5) requires such an application to be made within one year after passage of the by-law in issue as was done in this case. 3 The Applicant’s position is that the Licensing By-law is illegal and should be quashed on the following grounds: (a) it directly conflicts with and/or frustrates the purpose of superior Provincial legislation in violation of s.14 of the Municipal Act: (i) the Residential Tenancies Act, 2006 S.O. 2006, c. 17 as amended (“RTA”), (ii) the Municipal Freedom and Protection of Privacy Act, R.S.O. 1990, c. N56 as amended (“MFIPPA”), (iii) the Human Rights Code, R.S.O. 1990, c.H19 (“the Code”) and (iv) the Municipal Act. (b) the Licensing By-law was enacted in bad faith. (c) the provisions of the Licensing By-law are vague and/or uncertain

The Standard of Review 4 In RSJ Holdings Inc. v. London (City), [2007] 2 S.C.R. 588 (S.C.C.), the Supreme Court of Canada, adopting a test from Country Pork Ltd. v. Ashfield (Township) (2002), 60 O.R. (3d) 529 (Ont. C.A.), stated at paras. 36 and 37 that the Superior Court can properly take jurisdiction over a s. 273 application if the application involves “a direct frontal attack on the underlying validity and legality of the by-law.” 5 RSJ Holdings also sets out the standard of review of a by-law. In re- viewing the legality of the by-law, the proper standard is correctness. On the question of “illegality” which is central to a s. 273 review, municipalities do not possess any greater institutional expertise than the courts. 6 This standard is adapted from the Supreme Court of Canada’s decision in Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 38 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

(S.C.C.) where it was applied to a municipality’s attempt to interpret a statute to determine the scope of its authority. 7 The case law also recommends a deferential and purposive approach to municipalities’ decisions. In Cash Converters Canada Inc. v. Oshawa (City) (2007), 86 O.R. (3d) 401 (Ont. C.A.), the Ontario Court of Appeal said at para. 20, The question of whether a by-law is ultra vires the jurisdiction of the enacting municipality is a question of law which is reviewed on the standard of correctness. However in determining the question, courts are to take a broad and purposive approach to the construction and interpretation of municipal powers.

The Relevant Provisions of the Municipal Act 8 Section 8 of the Municipal Act provides that a municipality has powers that “shall be interpreted broadly so as to confer broad authority on a municipality to enable a municipality to govern its affairs as it considers appropriate and to enhance a municipality’s ability to respond to municipal issues.” 9 Section 9 of the Municipal Act confers the powers of an actual person on a municipality. 10 Section 10(1) of the Municipal Act permits a municipality to provide any, “service or thing that the municipality considers necessary or desirable for the public.” Section 10(2) specifically authorizes a municipality to pass by-laws respecting economic, social and environmental wellbeing of a municipality; health, safety and wellbeing of persons; protection of persons and property; business licensing; and, services and things that the municipality is authorized to provide under s. 10(1). 11 Section 14 of the Municipal Act states that a municipal by-law is without effect to the extent that it conflicts with a federal or provincial statute. Section 14(2) provides that without limiting the generality of subsection (1), there is conflict between a by-law of a municipality and a federal or provincial Act if the by-law frustrates the purpose of the Act. 12 Section 23.2(1) authorizes a municipality to delegate its powers and duties under the Act. Section 23.2(1) provides that sections 9, 10 and 11 do not authorize a municipality to delegate legislative and quasi-legislative powers except those listed in subsection (2) and legislative and quasi-legislative powers may be delegated only to specific persons including individuals appointed by its council or an individual who is an officer, employee or agent of the municipality. London Property Management Assn. v. London (City) L.C. Leitch J. 39

13 Section 23.2(4) further restricts the delegation of legislative and quasi-legislative powers by providing that no delegation of a legislative power shall be made to an individual unless in the opinion of council, the power being delegated is of a minor nature. Section 23.2 (5) specifically provides that the power to issue and impose conditions on a license is an example of a power considered to be of a minor nature. 14 Section 151 permits a municipality to provide for a system of licenses with respect to a business, without limiting ss. 9, 10 and 11 of the Act, and permits a municipality to differentiate its licensing requirements between different types of businesses: 151. (1) Powers re licences- Without limiting sections 9, 10 and 11, a municipality may provide for a system of licences with respect to a business and may, (d) impose special conditions on a business in a class that have not been imposed on all of the business in that class in order to obtain, continue to hold or renew a license.

Summary of the Licensing By-law in Issue 15 On January 1, 2007, the Province of Ontario enabled municipalities to pass a business Licensing By-law regulating residential rental units. Prior to that time, municipalities were prohibited from regulating such units. 16 The preamble to the Licensing By-law provides that the City considered it necessary and desirable for the public to regulate the renting of residential premises for the purpose of protecting the health and safety of the persons residing in residential rental premises by insuring that certain regulations are met; that the required essentials, such as plumbing, heating and water are provided; that the residential rental premises do not create a nuisance to the surrounding properties and neighbourhood; and, to protect the residential amenity, character and stability of the residential areas. 17 A Rental Unit is defined in the Licensing By-law as a building, or part of a building, consisting of one or more rooms, containing toilet and cooking facilities, designed for use as a single housekeeping establishment and used, or intended for use, as a rented residential premise. 18 Rental Property is defined to include each building containing a Rental Unit and the lot on which the Rental Unit is situated. 19 Pursuant to para. 2, the Licensing By-law prohibits anyone from operating a Rental Unit without holding a current valid license issued under the provisions of the Licensing By-law. 40 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

20 The Licensing By-law applies to specific housing types as set out in Part 3 of the Licensing By-law. 21 Part 4 of the Licensing By-law provides authority for the License Manager to administer the Licensing By-law. The License Manager is defined as the director of building controls for the City. 22 Part 5 provides further requirements for an application for a license including the name address and telephone number of each owner and payment of a prescribed fee per rental property. This part also provides that every application may be subject to investigations by and comments or recommendations from the municipal or provincial departments or agencies as the License Manager deems necessary including but not limited to the director of building control; the manager of by-law enforcement; the fire chief; and the medical office of health. 23 Part 6 of the Licensing By-law provides for the issuance of licenses and sets out information to be set out on the face of the license (including the name, address and telephone number of each licensee), what conditions may be imposed upon the issuance of a license and the fact that each valid license shall have a term of one year. 24 These conditions include that the conduct of the applicant or licensee shall not afford reasonable cause to believe that they will not carry on or engage in the operation of the Rental Unit in accordance with the law or with honesty or integrity; that the Rental Unit and Rental Property shall comply with the requirements of the Building Code Act, the Fire Preven- tion and Protection Act, 1997, and the regulations there under and the City’s Property Standards By-law; that the use of the Rental Unit and Rental Property is permitted or conforms with the uses permitted under the applicable zoning by-law or is a legal non-conforming use; and that the licensee shall ensure that a legible copy of the issued license is posted and maintained in a prominent position inside the Rental Unit near the front entrance. 25 Part 7 of the Licensing By-law delegates to the License Manager the power and authority to issue, renew, refuse to renew, or revoke or suspend a license or impose conditions. Section 7.2 sets out the grounds for such decisions by the License Manager. This section provides that the License Manager may refuse to issue or renew a license or may revoke or suspend a license on the following grounds: (i) the conduct of the Applicant or Licensee, or any partner, officer, director, employee or agent of the Applicant or Licensee, affords reasonable cause to believe that the Applicant or Licensee will not London Property Management Assn. v. London (City) L.C. Leitch J. 41

carry on or engage in the operation of the Rental Unit in accordance with the law or with honesty or integrity; (ii) there are reasonable grounds to believe that an application or other documents provided to the Licence Manager by or on behalf of the Applicant or Licensee contains a false statement; (iii) an Applicant or Licensee is carrying on activities that are in contravention of this By-law; or (iv) an Applicant or Licensee does not meet all of the requirements of this By-law or that the Rental Unit or Rental Property does not comply with the provisions of this By-law. 26 Decisions by the License Manager are to be made in writing and there is a right of appeal to a Hearings Committee. 27 Part 8 of the Licensing By-law provides for a hearing before the Hearings Committee which is subject to the Statutory Powers and Proce- dures Act. 28 Part 10 of the Licensing By-law sets out penalties for non-compliance with the provisions of the by-law.

The Overall Position of the Parties and Evidence Filed on the Application 29 The Applicant’s position is that once the City had the jurisdiction to licence residential rental units, the City determined to utilize the Licens- ing By-law to resolve issues relating to student housing. The Applicant questions the statement in the Licensing By-law’s purpose that it is to “protect the residential amenity, character and stability of residential areas” and submits that the Licensing By-law targets student housing. Fur- thermore, the Applicant submits that City Council rejected the overwhelming majority of public input and submissions opposed to the Licensing By-Law and the contents of two petitions containing over 9,000 signatures of tenants opposed to the proposed Licensing By-Law. 30 With respect to the licensing application procedure, the Applicant notes that the City has not refused any licenses but has instead placed 842 of 2617 applications into “indefinite abeyance” since the Licensing By-law came into force on March 1, 2010. 31 The application record includes affidavits from Ms. MacLaren and Mr. Angelini, both of whom applied for a license which resulted in them being directed to either remove or shut down units in their property which the License Manager asserted was an illegal use of the property. 42 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

Both of these applicants retained counsel and provided evidence to dis- prove the License Manager’s contention that the use was illegal. 32 The City, in its responding application, set out that the City Council received nine public reports from civic administration prior to passing the Licensing By-law, held two open houses to consider options and con- vened two public participation meetings to consider a draft proposed by- law. In addition, the City observes that the Applicant also had access to civic administration, including the City’s lawyers and councillors, to voice concerns with the Licensing By-law. 33 City Council received advice from the fire marshall who made a rec- ommendation that the City consider regulation of Rental Units by way of licensing to address illegal conversions of properties as a result of an investigation into fires in illegal basement residential units. City Council also received information that the number of property standard complaints and tenant complaints were increasing significantly.

The Test Required under s. 14 of the Municipal Act 34 As previously set out, section 14 of the Municipal Act provides that a municipal by-law is without effect to the extent that it conflicts with a provincial statute. 35 In Croplife Canada v. Toronto (City) (2005), 75 O.R. (3d) 357 (Ont. C.A.), the Court of Appeal dealt with a by-law limiting the use of pesticides within the City of Toronto. To determine whether the by-law conflicted with federal or provincial legislation, the court applied the following test at para 63: ...the conflicts test explicitly provided in s. 14 of the Municipal Act, 2001 must be interpreted in accordance with the two-pronged test prescribed in Rothmans: (1) Is it impossible to comply simultaneously with the pesticide by-law and with the federal PCPA or the Ontario Pesticides Act?; (2) Does the by-law frustrate the purpose of Parliament or the Ontario legislature in enacting those laws? If the answer to both questions is “no,” then the by-law is effective. 36 Therefore, in order to determine whether the Licensing By-law conflicts with a provincial statute, the following inquiries must be made: a. Is it impossible to comply simultaneously with the Licensing By- law and the superior legislation? and; London Property Management Assn. v. London (City) L.C. Leitch J. 43

b. Does the Licensing By-law frustrate the purpose of the Ontario Legislature in enacting the superior legislation in issue? 37 If the answer to either question is “yes”, the Licensing By-law conflicts with superior provincial legislation and is without effect to the extent of any conflict.

The Interpretation of Impossibility of Dual Compliance and Frustration of Purpose 38 In Croplife, the Court went on to say that if a particular level of government intends to occupy the field on an issue then they must use very clear language to express that intention. In Croplife, the first prong of the test was conceded. With respect to the second prong, the Court found that the by-law did not frustrate the purpose of the superior legislation. The superior legislation was permissive in the use of pesticides but did not propose to allow everyone to use any permitted pesticide in any un- restricted way. Therefore, superior legislation did not preclude the municipal by-law limiting the use of certain pesticides. 39 In Cash Converters, the same test was used in examining a by-law requiring dealers of second hand goods to record personal information about sellers of such goods and to transmit that information electroni- cally to the police department at least once daily. The court had to determine whether the by-law conflicted with s. 28(2) of MFIPPA which prohibits the collection of personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity. 40 In Cash Converters, the City of Oshawa argued that the by-law did not conflict with MFIPPA because the collection of the information was necessary for the proper administration of a lawfully authorized activity. However, the by-law was found to be in conflict with MFIPPA because the City of Oshawa was unable to demonstrate that the collection of personal information and its transmission to the police was necessary to protect the sellers of second hand goods and their customers as required under s. 28(2). 41 In Law Society (British Columbia) v. Mangat, [2001] 3 S.C.R. 113 (S.C.C.), the federal Immigration Act provided that non-lawyers could appear before the Immigration Review Board for a fee. The provincial Legal Profession Act prohibited non-law society members from providing legal services. The court found that it was logistically possible to 44 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

comply with both Acts by becoming a member in good standing of the law society or by not charging a fee. However, to require this would be contrary to the purpose of the impugned sections of the Immigration Act. 42 In discussing operational conflict, the court said at para. 69: There will be a conflict in operation where the application of the provincial law will displace the legislative purpose of Parliament. The test is stated at p.191 [of Multiple Access]: “one enactment says ‘yes’ and the other says ‘no’; ‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other”. 43 And at para. 72: In this case, there is an operational conflict as the provincial legislation prohibits non-lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee. At a superficial level, a person who seeks to comply with both enactments can succeed either by becoming a member in good standing of the Law Society of British Columbia or by not charging a fee. ... To require “other counsel” to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament’s purpose in enacting ss. 30 and 69 (1) of the Immigration Act. In those provisions, Parliament provided that aliens could be represented by non-lawyers acting for a fee, and in this respect it was pursuing the legitimate objective of establishing an infor- mal, accessible (in financial, cultural, and linguistic terms), and expe- ditious process, peculiar to administrative tribunals. Where there is an enabling federal law, the provincial law cannot be contrary to Par- liament’s purpose. ... 44 Another way in which one law might frustrate the purpose of another is if the intention of the superior law is to provide a complete code for the subject matter in question. Khan v. Metroland Printing, Publishing & Distributing Ltd. (2003), 68 O.R. (3d) 135 (Ont. Div. Ct.) (aff’d on other grounds (2005), 75 O.R. (3d) 165 (Ont. C.A.)) considers this issue. In this case, the court was deciding whether the Libel and Slander Act provided a complete code of procedure such that the Rules of Civil Proce- dure did not apply. 45 The court stated at para. 69: A piece of legislation can be considered a code once it provides a comprehensive treatment or contains a comprehensive list of laws and procedures in that particular field. This was clearly why the Landlord and Tenant Act was found to be an “extensive-self con- London Property Management Assn. v. London (City) L.C. Leitch J. 45

tained code” in Stone v. Metropolitan Toronto Housing Authority. [relied on by the Applicant as discussed below]

Does the Licensing By-law directly conflict with and/or frustrate the purposes of the RTA? 46 The RTA states at s. 3: This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. 47 And at s. 4: If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies. 48 The Applicant submits that the RTA was intended to be a complete code to regulate all aspects of residential tenancies. The Applicant relies upon Stone v. Metropolitan Toronto Housing Authority, [1987] O.J. No. 1504 (Ont. Dist. Ct.) quoted by Kahn for the assertion that the RTA constitutes a complete code. It also relies on Nistap Development Corp. v. McIntyre, [2009] O.J. No. 2960 (Ont. Div. Ct.). 49 Stone dealt with Part IV of the RTA (which has since been repealed) and found that this particular part was “an extensive self- contained code of procedure that must be followed in s. 113 ‘summary applications’” [Emphasis added]. Nistap dealt with the Tenant Protection Act, 1997 (repealed and replaced by the RTA). This case found that the Tenant Protec- tion Act “is a complete code of the rights between the landlord and the tenant” [Emphasis added]. 50 In my view, Stone and Nistap are different than the situation on this application. It is significant that Stone was dealing with one part of the landlord and tenant legislation for particular procedural purposes. In Nis- tap, the court dealt with the rights between landlords and tenants. The Licensing By-law regulates the rights of the landlord vis-`a-vis the City. 51 The purpose of the RTA set out in s. 1 supports the notion that the Licensing By-law was regulating different conduct. Section 1 of the RTA provides as follows: The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes. 46 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

52 In my view, the legislature has not precluded other acts from dealing with units in residential complexes. 53 In 114957 Canada Ltée (Spray-Tech, Société d’arrosage) v. Hudson (Ville), [2001] S.C.J. No. 42 (S.C.C.) at para. 40, similar provisions were taken to show that the legislature had contemplated the existence of complementary legislation: According to s. 102 of the Pesticides Act, as it was at the time By- law 270 was passed: “The provisions of the Pesticide Management Code and of the other regulations of this Act prevail over any inconsistent provision of any by-law passed by a municipality or an urban community.” Evidently, the Pesticides Act envisions the existence of complementary municipal by-laws. As Duplessis and Hétu, supra, at p. 109, put it, [TRANSLATION] “the Quebec legislature gave the municipalities the right to regulate pesticides, provided that the by- law was not incompatible with the regulations and the Management Code enacted under the Pesticides Act”. Since no Pesticide Manage- ment Code has been enacted by the province under s. 105, the [page273] lower courts in this case correctly found that the by-law and the Pesticides Act could co-exist. In the words of the Court of Appeal, at p. 16: [TRANSLATION] “The Pesticides Act thus itself contemplated the existence of municipal regulation of pesticides, since it took the trouble to impose restrictions.” 54 I note also that as a matter of statutory interpretation, courts should attempt to interpret two potentially conflicting pieces of legislation in a way that avoids a conflict. In Brantford (City) Public Utilities Commission v. Brantford (City) (1998), 36 O.R. (3d) 419 (Ont. C.A.), the Ontario Court of Appeal said at para. 27: In dissolving the Public Utilities Commission and establishing the Hydro-Electric Commission the City was not exercising any of the powers given to municipalities by Bill 26. More importantly, in my view, the exercise of those powers did not conflict with s. 210.4 or the regulations. In approaching this issue it is important to bear in mind a fundamental principle of statutory construction that courts should attempt to avoid finding a conflict between two pieces of legislation. Anglin J. expressed this principle in The Toronto Railway Company v. Paget (1909), 42 S.C.R. 488 at p. 499: • It is not enough to exclude the application of the general Act that it deals somewhat differently with the same subject-matter. It is not “inconsistent” unless the two provisions cannot stand together. London Property Management Assn. v. London (City) L.C. Leitch J. 47

55 The Applicant asserts that there is a possible conflict between the Li- censing By-law and the RTA. If a license is refused or revoked under the Licensing By-law, it may be impossible for the landlord to evict the tenant in a way that complies with the RTA. However, if the landlord does not evict the tenant then they will be violating the Licensing By-law. The Applicant asserts that a conflict may arise if the failure to get a license results in a tenant eviction. 56 The Applicant points out s. 37 of the RTA, which provides that: a tenancy may be terminated only in accordance with this Act. However, s. 2.2 and 2.4 of the Licensing By-law provide, respectively, that no person shall operate a Rental Unit without holding a current valid license or while their license is under suspension. 57 The Licensing By-law does not discuss what happens to the tenant in a scenario where a license is either refused or revoked. The Applicant points to Ms. McLaren’s and Mr. Angelini’s circumstances where the License Manager asserted the Rental Unit was illegal and could not be rented. Assuming that a refusal to grant, or a revocation of, a license renders the tenancy at an end the Applicant submits that there is an operational conflict between the statutes. 58 However, I am not satisfied that dual compliance is not possible or that the RTA is frustrated. For example, if a license is not granted because of a failure to meet Building Code standards, the landlord may properly evict the tenant under s. 50 of the RTA in order to undertake repairs to the rental property. 59 The Applicant asserted that another potential area of conflict that exists is between s. 6.6 of the Licensing By-law and s. 18 of the RTA. Sec- tion 18 of the RTA provides that, covenants concerning things related to a rental unit or the residential complex in which it is located run with the land, whether or not the things are in existence at the time the covenants are made. Therefore, when a building containing a rental unit is sold the purchaser must maintain the tenancy subject of the limited exceptions set out in s. 49. 60 However, s. 6.6 of the Licensing By-law states “No licence issued under this By-law may be sold, purchased, leased, mortgaged, charged, assigned, pledged, transferred, distrained or otherwise deal with.” 61 Therefore, if a purchaser takes ownership of the Rental Unit, the previous license is no longer valid and the unit becomes unlicensed. A purchaser is unable to obtain a license in advance because, according to the Licensing By-law, only the owner of a unit may apply for a license. This 48 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

results in a gap in time where the unit it unlicensed. The Applicant argues that because both the current owner and the purchaser are unable to evict the tenant under the RTA and the purchaser will be unable to comply with the Licensing By-law there are operational conflicts. 62 However, I cannot accept this argument by the Applicant. The Li- censing By-law contains no provisions which evict tenants. I disagree with the Applicant’s submission that the Licensing By-law creates a new ground for termination of a tenancy not found in the RTA. The penalty for failing to comply with a Licensing By-law is the potential of a fine or a finding of contempt. The penalty section of the Licensing By-law provides for the imposition of a fine for contravening any provision of the Licensing By-law and s. 10.5 provides that the court which enters a conviction and any court of competent jurisdiction thereafter may make an order prohibiting the continuation or repetition of the offence (that is operating without a license) and requiring the person to correct the contravention in the manner and within the period that the court considers appropriate.

Does the Licensing Bylaw directly conflict with the Code by discriminating in the right to housing accommodation on the basis of age, marital status and receipt of public assistance? 63 The purposes of the Code are stated in its preamble which includes the following: WHEREAS it is public policy in Ontario ... to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province; 64 Further, s. 2 of the Code states as follows: 2. (1) Accommodation- Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance. 65 On the first prong of the test under s. 14 of the Municipal Act dual compliance is possible. The Licensing By-law does not compel landlords to refuse to rent to any particular group. It merely requires them to meet certain safety standards and to maintain a license. London Property Management Assn. v. London (City) L.C. Leitch J. 49

66 The Applicant argues that the Licensing By-law has a discriminatory effect with respect to the right to accommodation on a ground protected by the Code contrary to s. 9 of the Code and as a result the Licensing By- law frustrates the purpose of the Code. 67 In Ontario (Director of Disability Support Program) v. Tranchemontagne (2010), 102 O.R. (3d) 97 (Ont. C.A.) at para. 86, the Ontario Court of Appeal set out the appropriate test to apply when determining whether discrimination exists for the purposes of the Code. This test asks, 1. Does the law create a distinction based on an enumerated or analogous ground? 2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? 68 The Code does not list student status as an enumerated ground. Therefore, it is necessary to analyze whether student status is an analogous ground. 69 The considerations for analogous grounds often come from the jurisprudence surrounding s.15 of the Charter. In Corbiere v. Canada (Minister of Indian & Northern Affairs), [1999] 2 S.C.R. 203 (S.C.C.), the majority of the Court, in considering the grounds enumerated in s. 15, says at para. 13, It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s.15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. 70 The issue of whether student status is an analogous ground was considered in Allen v. Canada (Human Rights Commission), [1992] F.C.J. No. 934 (Fed. T.D.) and Wong v. University of Toronto (1990), [1989] O.J. No. 979 (Ont. Dist. Ct.). 71 In Allen, the Federal Court of Canada was dealing with a claim made against the Human Rights Commission regarding a complaint under the Canadian Human Rights Act. A group of students was claiming that they 50 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

were discriminated against based on race, and in particular, that student status was equivalent to race. In dismissing this claim McGillis J. said, A review of the jurisprudence, literature and international human rights conventions and agreements reveals that “race” is not an am- biguous term, but rather is consistently referred to in the context of inheritable, physical attributes. Student status is not an inheritable, physical attribute, but rather is a transient, non-physical state. Ac- cordingly, a group of students may not properly be included in the definition of the word “race” for the purposes of making a complaint on a prohibited ground of discrimination under the Act. Furthermore, student status is not analogous to any ground of discrimination pro- scribed in subsection 3(1) of the Act. 72 In Wong, the Ontario District Court briefly considered whether an ac- ademic appeals process mandated by the University discriminated against a student on the basis of his student status, Finally the plaintiff argues that to deny him access to the courts discriminates against students within the meaning of section 15(1) of the Canadian Charter of Rights and Freedoms. While I am not denying Mr. Wong access to the courts and this point was not argued exten- sively before me, I agree with the defendants that the rights of students are not analogous to those listed in section 15(1). 73 I reach a similar conclusion and do not consider student status an analogous ground. However, because the Applicant asserts that the Li- censing By-law discriminates on the basis of age, marital status and receipt of public assistance I will consider whether the Licensing By-law creates a distinction based on these grounds and whether this distinction creates a disadvantage that perpetuates stereotypes and prejudice. In relation to this question, the purpose of the by-law is important (Sacr´e-Coeur (Municipalit´e) c. Lacombe, [2010] 2 S.C.R. 453 (S.C.C.), at para. 20). 74 The Applicant argues that the Licensing By-law has a collateral purpose to limit the rental housing available to students and also to young single people and those who receive social assistance and the City has enacted the by-law with that purpose in mind. According to the Appli- cant, the effect of the Licensing By-law is to impose restrictive conditions on the rental properties typically occupied by students, young single people and recipients of social assistance. 75 In Tranchemontagne, supra, the Court of Appeal stated at para. 90 that, In the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based London Property Management Assn. v. London (City) L.C. Leitch J. 51

solely on the claimant’s evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of with- holding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone. However, in other instances a more nuanced inquiry may be necessary to properly assess whether a distinction based on an enumerated ground that creates a disadvantage actually engages the right to equal treatment under the Code in a substantive sense. 76 In Hendershott v. Ontario (Ministry of Community & Social Ser- vices), [2011] O.H.R.T.D. No. 478 (Ont. Human Rights Trib.), the On- tario Human Rights Tribunal considered Tranchemontagne and stated at para. 55, I would not interpret the discussion of prejudice or stereotyping as adding a new element to the traditional human rights analysis. I adopt the reasoning of the Court of Appeal that in most cases under the Code, prejudice and stereotyping will be inferred where the claimant is able to link their identity to the prohibited ground and prove that the ground was a factor in the disadvantage they experienced. In those cases where the claimant’s identity and/or the subject-matter of their claim appear inconsistent with the purposes of the Code, consideration of issues such as prejudice and stereotyping may be useful in clarifying whether or not the allegations raise concerns for substantive equality. 77 The City points out that the Human Rights Commission was provided with a copy of the Licensing By-law and provided the City with the following qualified advice on March 24, 2009: In general, by-laws can come into conflict with the Code when they either intend to target particular groups based on Code grounds in their creation or enforcement, or where they tend to have an adverse impact on people from Code protected groups. Where licensing by- laws are not connected to a rational purpose, target particular geo- graphic areas where residents are known to be from Code-protected groups, and a negative impact results (example loss of affordable housing, or higher scrutiny from officials), this could be problematic from a human rights perspective. In this case, however, the licensing scheme is city-wide and based on structure type (example — four or fewer rental units), not on the characteristics of renters, and appears to be based on objective rationale that these units are more likely to be in a higher need for repair. 52 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

78 I agree with the City’s submission that there is no evidence to support a finding that the Licensing By-law contravenes the Code. It applies throughout the City. It does not target any particular person or group of people or whether or not the housing is affordable. Rather, it targets specific types of dwellings. The Licensing By-law does not conflict with the Code.

Does the Licensing By-law directly conflict with MFIPPA? 79 Section 5.1 of the Licensing By-law requires every application for a licence to include, (a) the name, municipal address and telephone number of each Owner; (b) if the Owner is a partnership, the name, address and telephone number of each partner; (c) if the Owner is a corporation, the address of its head office, the name, address and telephone number of each director and officer; (d) the municipal address and legal description of the Rental Unit; ... 80 Section 6.1 provides the information the licence must include, information which the Applicant asserts is personal and which the City asserts is business contact information. Section 6.2 requires that the licence be visibly and prominently displayed inside near the front entrance of the rental unit, 6.1. Every licence issued under this By-law shall be in the form and manner as provided by the Licence Manager and without limitation shall include on its face the following information; (a) the licence number (b) the name, address and telephone number of each Licensee; (c) the date the licence was issued and the date it expires; and, (d) the municipal address of the Rental Unit 6.2 Every licence that is issued for the first time, and every renewal thereof, is subject to the following conditions of obtaining, continu- ing to hold and renewing a licence all of which shall be performed and observed by the Applicant or the Licensee: (k) the Licensee shall ensure that a legible copy of the license is issued under this By-law is posted and maintained in a prominent and visible position inside the Rental Unit near the front entrance. London Property Management Assn. v. London (City) L.C. Leitch J. 53

81 As the Intervener notes, this application raises the threshold issue of whether the names, addresses and telephone numbers collected by the city under the Licensing By-law qualify as “personal information” under the definition in sections 2(1) and 2(2.1) of MFIPPA. The definition of “personal information” in s. 2(1) of MFIPPA is as follows: “Personal information” means recorded information about an identifiable individual, including, (d) the address, telephone number....of the individual. 82 Section 2(2.1) states the following: “Personal information” does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity. 83 Section 28 (2) of MFIPPA states, (2) Collection of personal information- No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity. 84 Section 31 of MFIPPA states, 31. Use of personal information- an institution shall not use personal information in its custody or under its control except, (a) if the person to whom the information relates has identified that information in particular and consented to its use; (b) for the purpose for which it was obtained or compiled or for a consistent purpose; or (c) for a purpose for which the information may be disclosed to the institution under section 32 or under section 42 of the Freedom of Information and Protection of Privacy Act. 85 Whether the information required by the Licensing By-law is personal information is central to the question of dual compliance. If it is business information than it is outside the ambit of MFIPPA. If the information required by the Licensing By-law is business information it is not subject to MFIPPA and therefore there can be no problem with dual compliance. 86 The Intervener in this case made three submissions. The first submission raises the doctrine of adequate alternative remedy. Their position is that this court can decline to make a ruling on this issue because judicial review of the Commissioner’s decision is available. 54 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

87 In support of its first submission, the Intervener referred me to C.B. Powell Ltd. c. Canada (Agence des services frontaliers), [2010] F.C.J. No. 274 (F.C.A.), where the Federal Court of Appeal said at para 31, ...absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. 88 In Reference re Municipal Freedom of Information & Protection of Privacy Act (Ontario), [2011] O.J. No. 1071 (Ont. S.C.J.) at para. 31, the court set out the six factors enumerated by the Supreme Court of Canada in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 (S.C.C.) to consider in determining whether an appeal mechanism is an adequate alternative remedy, 1. The procedures on appeal including the convenience of the alternative remedy. 2. The nature of the appellate body, i.e. its investigatory, decision-making and remedial capacities. 3. The powers of the appellate body and the manner in which they were to be exercised. 4. Expeditiousness and costs. 5. The burden of the previous finding. 6. The nature of the error. 89 However, I am unable to accept this first submission from the Inter- vener. In Reynolds v. Ontario (Registrar, Information & Privacy Com- missioner), [2006] O.J. No. 4356 (Ont. Div. Ct.) the applicant argued that the information and privacy Commissioner had a duty to adjudicate privacy complaints because of s. 1(b) of MFIPPA which sets out one of the purposes of the legislation as being to “protect the privacy of individuals with respect to personal information about themselves held by institu- tions.” However, the court found that there was a striking difference in the way the legislation handled access disputes and privacy complaints and the Commissioner only had tribunal jurisdiction for access disputes. 90 The other submissions of the Intervener were that this court could adopt the Commissioner’s finding that the information in issue was not “personal information” under s. 2(1) of MFIPPA as a result of the Appli- cant’s privacy complaint to the Commissioner or for this court to make a ruling on the MFIPPA issues. 91 The Court of Appeal in Cash Converters at para. 28 was clear that the Commissioner has “recognized expertise in the interpretation and appli- London Property Management Assn. v. London (City) L.C. Leitch J. 55

cation of the statues relating to personal information and the protection of privacy” and the Commissioner is given “primary responsibility...for supervising compliance.” However, notwithstanding these observations, the court did not defer to the decision of the Commissioner and decided the issue itself although adopting the Commissioner’s approach to the interpretation of the section in question (paras. 40 to 45). 92 In my view, it is appropriate to take that same approach here and this court should make a ruling on the MFIPPA issue raised on this application. In my view, landlords who lease Rental Units are engaged in business whether or not the landlord is an individual leasing a Rental Unit in his own home or a corporate landlord leasing units in a large apartment building. Both landlords are operating a business. As a result, I am satisfied that the Licensing By-law does not conflict with the provisions of the MFIPPA which protects personal information because the information requested comes within the exclusion set out in s. 2(2.1) of MFIPPA. It is contact information that identifies the individual in a business capacity.

Does the Licensing By-law directly conflict with the Municipal Act by unlawfully delegating Municipal powers? 93 What is at issue here is the delegation to the License Manager of the power to revoke, refuse or suspend a license. Section 23.1 of the Munici- pal Act gives the City a general power to delegate. Section 23.2 (1) (c) allows for delegation to an individual who is an officer, employee or agent of the municipality. However, according to section 23.2 (4) the powers that may be delegated to such persons are restricted to powers of a minor nature. Section 23.2 (5) indicates that the power to issue and impose conditions on a license is an example of a power considered to be of a minor nature. 94 The Applicant relies on 2027625 Ontario Ltd. v. Kitchener (City), [2007] O.J. No. 4319 (Ont. S.C.J.) for the proposition that the authority to refuse licenses is a major judicial power that cannot be delegated. However, the proposition that the authority to refuse a license cannot be delegated under any circumstances does not mesh well with jurisprudence from the Supreme Court of Canada. Further, as noted by the City, the 2027625 Ontario Ltd. case did not interpret section 23.2 in its entirety. 95 In Vic Restaurant Inc. v. Montreal (City) (1958), [1959] S.C.R. 58 (S.C.C.), the Supreme Court considered a by-law that gave the director 56 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

of police the power to refuse permits to sell liquor. In that case, the delegation was improper because no directions for the exercise of this power were given to the director of police, they were able to arbitrarily refuse a permit. The majority of the Court said, The power to fix the terms upon which they are to be issued has been vested in the city council. For that body to say that before the Direc- tor of Finance may issue a licence, the Director of Police, in his discretion, may prevent its issue by refusing approval is not to fix the terms, but is rather an attempt to vest in the Chief of Police power to prescribe the terms, or some of the terms, upon which the right to a licence depends. In this case, granted the necessary power had been given to the council by the charter, the by-law might, as pointed out in the judgment of this Court in Bridge’s case, have prescribed a state of facts the existence of which should render a person ineligible to receive a permit...Nothing of this nature appears in this by-law but, as in the cases to which I have referred in the other provinces, it has been left without direction to the Chief of Police to decide whether the applicant should or should not be permitted to carry on a lawful calling. 96 In Outdoor Neon Displays Ltd. v. Toronto (City), [1960] S.C.R. 307 (S.C.C.), the court found that a delegation to refuse a permit was lawful because “the bylaw states with sufficient particularity the grounds on which the approval of a proposed location is to be granted or withheld.” 97 Finally, the Ontario Court of Appeal has recently applied this kind of reasoning in Adult Entertainment Assn. of Canada v. Ottawa (City), [2007] O.J. No. 2021 (Ont. C.A.). In that case, the Chief License Inspec- tor and the Chief of Police were able to refuse licenses for adult entertainment parlours. Anyone wishing to obtain a license for an adult entertainment parlour had to submit a floor plan to the Chief License Inspector and the Chief of Police for inspection. The court found that this was a proper delegation because it was, ...clear that the Chief License Inspector and the Chief of Police do not have an unbridled discretion to approve or not approve the issuance of a license to an adult entertainment parlour owner at their whim on a case-by-case basis and without regard to any standards. 98 The Licensing By-law provides an exhaustive list of factors in s.7.2 (b) for the Licence Manager to consider. It is only where one of these enumerated grounds is satisfied that the license manager may refuse, suspend or revoke a license. Following the jurisprudence above, I am satisfied that the delegation under the Licensing By-law is lawful. In addition, London Property Management Assn. v. London (City) L.C. Leitch J. 57

the Licensing By-law provides for a right of appeal to a Hearings Com- mittee from a decision of the License Manager to refuse to issue a license, to refuse to renew a license, to revoke a license or to impose conditions on the license. As the City notes, issues respecting the proper administration of the Licensing By-law are subject to judicial review.

Is the Licensing By-law illegal because it was enacted in bad faith? 99 Although the trend has been to take a deferential approach to municipalities, this does not apply in cases of bad faith. The Ontario Court of Appeal said in Grosvenor v. East Luther Grand Valley (Township) (2007), 84 O.R. (3d) 346 (Ont. C.A.) at para. 42, This provision [s. 272 of the Municipal Act, 2001] reinforces the notion that municipal by-laws properly enacted are not to be lightly quashed; they are not open to review even if they are unreasonable. It is a pre-condition to that immunization from review, however, that the by-law is “passed in good faith”. This, in turn, reinforces the essential character of a valid and legal by-law: it must be enacted in good faith. 100 However, the case law shows that the standard to establish bad faith on the part of a municipal council is high. There is a presumption of good faith that must be overcome by the party alleging bad faith. 101 These principles are outlined in the Ontario Superior Court case of Uukkivi v. Lake of Bays (Township) (2004), 2 M.P.L.R. (4th) 240 (Ont. S.C.J.). In discussing bad faith, Low J. stated that, “The onus is on the applicant to establish bad faith. To establish bad faith the applicant must show that the township acted other than in the public interest” and “By- laws are presumed to have been enacted in good faith unless the person attacking them proves the contrary.” 102 Referencing a British Columbia Court of Appeal case, Low J. also concluded “...courts should be slow to find bad faith in the conduct of democratically elected representatives acting under legislative authority, unless there is no other rational conclusion.” 103 The Divisional Court case of H.G. Winton Ltd. v. North York (Bor- ough) (1978), 20 O.R. (2d) 737 (Ont. Div. Ct.), describes what may constitute bad faith, To say that council acted in what is characterized in law as “bad faith” is not to imply or suggest any wrongdoing or personal advantage on the part of any of its members. But it is to say, in the factual situation of this case, that council acted unreasonably and arbitrarily 58 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

and without the degree of fairness, openness, and impartiality required of a municipal government. [citations omitted] 104 This case also provides some indicia of bad faith, That the by-law was pushed through with inordinate speed, that it was designed to give the pretense of being operative on a larger area, that usual Borough practices and procedures were set aside, and that the two most affected parties were kept in the dark- all point to a lack of good faith. So also, does the fact that the by-law singles out one property, to the clear detriment of its owners, for a use classification different to that applicable to all other owners covered by the same zoning category under the borough’s comprehensive zoning scheme. 105 The Applicant argues that the use of a Licensing By-law is improper here because the City is attempting to regulate land use rather than regulating and governing the manner in which a business is carried on. 106 In Prince George (City) v. Payne (1977), [1978] 1 S.C.R. 458 (S.C.C.), the Supreme Court considered the power of council to pass a resolution denying a license for an adult boutique. In that case, the Court found that the council was trying to use its licensing power to restrict land use because the effect of the resolution was to prohibit this type of business from operating in Prince George. 107 In Neighbourhoods of Windfields Ltd. Partnership v. Death (2008), 49 M.P.L.R. (4th) 183 (Ont. S.C.J.), Howden J. of the Ontario Superior Court discussed some examples where a Licensing By-law was found in effect to be a zoning by-law, The Rogers text gives the following examples of by-laws passed under the licensing authority or similar authority which were ruled to have been in effect zoning by-laws: a by-law prohibiting the location of a gas station in a specified area, a by-law restricting the operation of self-service stations at certain locations; a by-law prohibiting a public garage within a certain radius of single dwellings; and a by- law restricting the operation of an adult entertainment parlour to certain defined areas. 108 I am satisfied that this case falls outside of the examples given above. Here, the City is not trying to prohibit a particular business or stop it from operating in particular areas. Rather, the Licensing By-law applies citywide. I find that the Licensing By-law is regulating a business. 109 In regards to the bad faith issue more generally, the indicia outlined above are not present. The evidence is that the normal procedures were followed, public meetings were held, and that the action by the council London Property Management Assn. v. London (City) L.C. Leitch J. 59

was not arbitrary. I cannot find that the Applicant has met the high standard required to establish bad faith.

Are sections of the Licensing By-law so vague and/or uncertain that they should be quashed? 110 The standard for finding a law void for vagueness is high. Two Su- preme Court cases canvas this issue. 111 The first, Fountainhead Fun Centres Ltd. c. Montr´eal (Ville), [1985] 1 S.C.R. 368 (S.C.C.), deals with whether a by-law regulating the uses of arcades was too vague. Writing for the Court, Beetz J. quoted with approval from North Vancouver Shops Regulation By-law, Re (1972), 24 D.L.R. (3d) 305 (B.C. S.C.), where it was said that, It may be that the by-law here will occasion some difficulty in interpretation. But difficulty of interpretation is not to be confused with vagueness and uncertainty to the point of invalidity. 112 Beetz J. also adopted the standard of vagueness found in the book Principes de contentieux administrative (1982) Pepin and Ouellete: [TRANSLATION] In short, the vagueness must be so serious that the judge concludes that a reasonably intelligent man, sufficiently well informed if the by-law is technical in nature, is unable to determine the meaning of the by-law and govern his actions accordingly. 113 Beetz J. further stated that “Mere uncertainty as to the scope of a by- law will not suffice to make it void” and “Each case is practically unique and the courts have to determine each time whether the true meaning of the by-law in question can be understood by the persons to whom it applies.” 114 In Canada v. Pharmaceutical Society (Nova Scotia), [1992] 2 S.C.R. 606 (S.C.C.) the Supreme Court again considered the concept of vagueness, this time in relation to constitutional vagueness. Gonthier J. speaking for the court stated that, “The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.” 115 The Ontario Court of Appeal has applied both decisions when interpreting whether a by-law is vague. 60 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

116 In Adult Entertainment Assn. of Canada v. Ottawa (City), [2007] O.J. No. 2021 (Ont. C.A.), the Court said, A law is too vague where it “does not provide an adequate basis for legal debate” and “does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion”...Language is not an exact tool, however, and a law cannot be expected to predict the legal consequences of all possible courses of conduct...A law is unconstitutionally vague if it cannot, even with judicial interpretation, give meaningful standards of conduct. 117 In Bayfield (Village) v. MacDonald, [1997] O.J. No. 1892 (Ont. C.A.), the Court was considering whether a by-law was vague because it failed to define certain terms used. Here the Court quoted the passage from Pepin and Ouellette above and found that the provisions were not too vague. 118 Here, where there is no Charter argument, the appropriate test is likely the Montr´eal (Ville) test. However, as the two tests are similar in scope and application, the jurisprudence regarding unconstitutional vagueness is also helpful. 119 The Applicant’s argument that the Licensing By-law is void for vagueness is mainly based on a lack of definitions in the Licensing By- law. 120 Their first submission is that it is unclear who is prohibited from operating a rental unit without a license because the terms “person” and “operate” are undefined. This argument is not strong enough to meet the standard for vagueness. A reasonably intelligent person could likely determine if they were a person who is operating a rental unit. 121 The second submission is that the definition of “converted dwelling” does not provide clear notice of whether the Licensing By-law applies to a particular property owner. This argument is based on the fact that as a result of the definition in the Licensing By-law, in order to know whether a property is a “converted dwelling” the owner must know what kind of dwelling was on the property prior to July 1, 1993, and whether the dwelling has since been altered. Here, I think the comments of Beetz J. in Montr´eal (Ville) regarding difficulty in interpretation and uncertainty regarding scope apply. 122 The third and final submission is that it is unclear to whom the Li- censing By-law applies because of the use throughout the Licensing By- law of “owner”, “registered owner”, “person” and “licensee” where only London Property Management Assn. v. London (City) L.C. Leitch J. 61

“owner” and “licensee” are defined terms. I am not satisfied that these potential flaws in the Licensing By-law are able to meet the high standard set out by the Supreme Court. The inconsistency in use of terms, while unfortunate, is not so serious as to make it impossible to determine the meaning of the Licensing By-law.

Conclusion 123 For the foregoing reasons, the application is dismissed. The extensive factums and fulsome submissions from counsel on these issues were very helpful in considering the issues raised upon this application. 124 If necessary, counsel may make brief submissions on the issue of costs within the next 30 days. Application dismissed. 62 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

[Indexed as: Burnett v. Moir] Garrett Burnett, Plaintiff and Scott Moir, Garry Todoruk, George Holmes, Sunny Jara, Jeremy Wocknitz, Tyler Wocknitz, Paul Uppal, Lorne Pike, Jim Cessford, The Corporation of Delta, John Does 1 to 10 and Employees 1 to 10, Defendants British Columbia Supreme Court Docket: Vancouver S088358 2011 BCSC 1469 A.F. Cullen J. Heard: April 4-8, 11-15, 18-21, 26, 28, 2011; May 2-6, 9-12, 16-18, 2011 Judgment: November 1, 2011 Torts –––– Negligence — Duty and standard of care — Duty of care –––– Plaintiff was severely assaulted while patronizing nightclub in Municipality of Delta — Assault occurred while plaintiff and other patrons were being pushed outside through door; assault was captured by surveillance camera — Recording was not sufficiently clear to allow identification of assailant and subsequent police investigation could not determine his identity — Plaintiff suffered moderately severe traumatic brain injury which significantly compromised his future — Plaintiff brought action in negligence against local police department as well as municipality — Action dismissed — Defendants did not have requisite relationship with plaintiff to establish duty of care and were not liable to plaintiff for negligence — Plaintiff failed to meet burden of establishing proximity necessary to prove liability against municipality or police — Pre-assault, municipality did not have necessary close and direct relationship to plaintiff necessary to establish private law duty of care — There was no evidence that plaintiff relied on licensing issued by municipality as warranting particular standard of behaviour at bar — Post-assault, nexus between alleged negligence and harm was weak — Policy reasons intrinsic to relationship between investigator and victim dictated against finding that it was close and direct in sense contemplated by proximity analysis — There was no duty of care owed by defendants to plaintiffs either pre- or post-assault. Law enforcement agencies –––– Police — Duties, rights and liabilities of officers — Conduct of officers — Negligence –––– Plaintiff was severely assaulted while patronizing nightclub in Municipality of Delta — Assault occurred while plaintiff and other patrons were being pushed outside through door; assault was captured by surveillance camera — Recording was not sufficiently clear to allow identification of assailant and subsequent police investigation Burnett v. Moir 63 could not determine his identity — Plaintiff suffered moderately severe traumatic brain injury which significantly compromised his future — Plaintiff brought action in negligence against local police department as well as municipality — Action dismissed — Defendants did not have requisite relationship with plaintiff to establish duty of care and were not liable to plaintiff for negligence — Plaintiff failed to meet burden of establishing proximity necessary to prove liability against municipality or police — Pre-assault, municipality did not have necessary close and direct relationship to plaintiff necessary to establish private law duty of care — There was no evidence that plaintiff relied on licensing issued by municipality as warranting particular standard of behaviour at bar — Post-assault, nexus between alleged negligence and harm was weak — Policy reasons intrinsic to relationship between investigator and victim dictated against finding that it was close and direct in sense contemplated by proximity analysis — There was no duty of care owed by defendants to plaintiffs either pre- or post-assault. Municipal law –––– Municipal liability — Negligence — Building review, inspections and permit issuance –––– Plaintiff was severely assaulted while patronizing nightclub in Municipality of Delta — Assault occurred while plaintiff and other patrons were being pushed outside through door; assault was captured by surveillance camera — Recording was not sufficiently clear to allow identification of assailant and subsequent police investigation could not determine his identity — Plaintiff suffered moderately severe traumatic brain injury which significantly compromised his future — Plaintiff brought action in negligence against local police department as well as municipality — Action dismissed — Defendants did not have requisite relationship with plaintiff to establish duty of care and were not liable to plaintiff for negligence — Plaintiff failed to meet burden of establishing proximity necessary to prove liability against municipality or police — Pre-assault, municipality did not have necessary close and direct relationship to plaintiff necessary to establish private law duty of care — There was no evidence that plaintiff relied on licensing issued by municipality as warranting particular standard of behaviour at bar — Post-assault, nexus between alleged negligence and harm was weak — Policy reasons intrinsic to relationship between investigator and victim dictated against finding that it was close and direct in sense contemplated by proximity analysis — There was no duty of care owed by defendants to plaintiffs either pre- or post-assault. Cases considered by A.F. Cullen J.: Abarquez v. Ontario (2009), 2009 CarswellOnt 2380, 189 C.R.R. (2d) 131, 95 O.R. (3d) 414, 2009 ONCA 374, 66 C.C.L.T. (3d) 169, 75 C.C.E.L. (3d) 159, 310 D.L.R. (4th) 726, 252 O.A.C. 267, [2009] O.J. No. 1814 (Ont. C.A.) — referred to Athey v. Leonati (1996), [1997] 1 W.W.R. 97, 140 D.L.R. (4th) 235, 81 B.C.A.C. 243, 132 W.A.C. 243, 203 N.R. 36, [1996] 3 S.C.R. 458, 31 64 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

C.C.L.T. (2d) 113, 1996 CarswellBC 2295, 1996 CarswellBC 2296, [1996] S.C.J. No. 102 (S.C.C.) — considered Attis v. Canada (Minister of Health) (2008), 59 C.P.C. (6th) 195, 300 D.L.R. (4th) 415, 2008 CarswellOnt 5661, 2008 ONCA 660, 254 O.A.C. 91, 93 O.R. (3d) 35, [2008] O.J. No. 3766 (Ont. C.A.) — referred to Beckstead v. Ottawa (City) (1997), 155 D.L.R. (4th) 382, (sub nom. Beckstead v. Ottawa (City) Chief of Police) 37 O.R. (3d) 62, 1997 CarswellOnt 4960, [1997] O.J. No. 5169 (Ont. C.A.) — referred to Clements (Litigation Guardian of) v. Clements (2010), 327 D.L.R. (4th) 1, 12 B.C.L.R. (5th) 310, (sub nom. Clements v. Clements) 505 W.A.C. 56, (sub nom. Clements v. Clements) 298 B.C.A.C. 56, 2010 CarswellBC 3477, 2010 BCCA 581, 79 C.C.L.T. (3d) 6, 4 M.V.R. (6th) 1, [2010] B.C.J. No. 2532 (B.C. C.A.) — considered Cooper v. Hobart (2001), [2002] 1 W.W.R. 221, 2001 CarswellBC 2502, 2001 CarswellBC 2503, 2001 SCC 79, 8 C.C.L.T. (3d) 26, 206 D.L.R. (4th) 193, 96 B.C.L.R. (3d) 36, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 277 N.R. 113, [2001] 3 S.C.R. 537, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 160 B.C.A.C. 268, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 261 W.A.C. 268, [2001] S.C.J. No. 76, REJB 2001-26862 (S.C.C.) — referred to Dorset Yacht Co. v. Home Office (1970), [1970] 1 Lloyd’s Rep. 453, [1970] A.C. 1004, [1970] 2 All E.R. 294, [1970] 2 W.L.R. 1140 (U.K. H.L.) — considered Edwards v. Law Society of Upper Canada (2001), 34 Admin. L.R. (3d) 38, 2001 CarswellOnt 3962, 2001 CarswellOnt 3963, 2001 SCC 80, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35, 206 D.L.R. (4th) 211, 277 N.R. 145, [2001] 3 S.C.R. 562, (sub nom. Edwards v. Law Society of Upper Canada (No. 2)) 56 O.R. (3d) 456 (headnote only), 153 O.A.C. 388, [2001] S.C.J. No. 77, REJB 2001-26863 (S.C.C.) — referred to Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 35 C.P.C. (6th) 7, 2006 CarswellOnt 6777, 43 C.C.L.T. (3d) 163, 82 O.R. (3d) 321, 217 O.A.C. 69, 276 D.L.R. (4th) 411, [2006] O.J. No. 4400 (Ont. C.A.) — referred to Hanke v. Resurfice Corp. (2007), 69 Alta. L.R. (4th) 1, 404 A.R. 333, 394 W.A.C. 333, 2007 CarswellAlta 130, 2007 CarswellAlta 131, 2007 SCC 7, [2007] 4 W.W.R. 1, 45 C.C.L.T. (3d) 1, 278 D.L.R. (4th) 643, [2007] R.R.A. 1, 357 N.R. 175, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7 (S.C.C.) — followed Hill v. Chief Constable of West Yorkshire (1988), [1988] 2 W.L.R. 1049, [1989] A.C. 53, [1988] 2 All E.R. 238 (U.K. H.L.) — considered Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2005), 202 O.A.C. 310, 36 C.C.L.T. (3d) 105, 2005 CarswellOnt 4589, 76 Burnett v. Moir 65

O.R. (3d) 481, 33 C.R. (6th) 269, 259 D.L.R. (4th) 676, [2005] O.J. No. 4045 (Ont. C.A.) — referred to Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2007), 2007 SCC 41, 2007 CarswellOnt 6265, 2007 CarswellOnt 6266, 87 O.R. (3d) 397 (note), 40 M.P.L.R. (4th) 1, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 368 N.R. 1, 285 D.L.R. (4th) 620, [2007] 3 S.C.R. 129, [2007] R.R.A. 817, 50 C.R. (6th) 279, 230 O.A.C. 253, [2007] S.C.J. No. 41 (S.C.C.) — followed Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1989), [1989] O.J. No. 471, (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 58 D.L.R. (4th) 396, 39 O.R. (3d) 47, (sub nom. Jane Doe v. Police Bd. of Commissioners (Metropolitan To- ronto)) 48 C.C.L.T. 105, 1989 CarswellOnt 684 (Ont. H.C.) — referred to Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 1 C.R.R. (2d) 211, (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 72 D.L.R. (4th) 580, 1990 CarswellOnt 442, (sub nom. Jane Doe v. Board of Police Commissioners of Metropolitan Toronto) 40 O.A.C. 161, 5 C.C.L.T. (2d) 77, (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 74 O.R. (2d) 225, 50 C.P.C. (2d) 92, [1990] O.J. No. 1584 (Ont. Div. Ct.) — referred to Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 160 D.L.R. (4th) 697, (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 39 O.R. (3d) 487, 43 C.C.L.T. (2d) 123, 126 C.C.C. (3d) 12, 1998 CarswellOnt 3144, [1998] O.J. No. 2681 (Ont. Gen. Div.) — considered Mooney v. British Columbia (Attorney General) (2004), [2004] 10 W.W.R. 286, 25 C.C.L.T. (3d) 234, 2004 BCCA 402, 2004 CarswellBC 1707, 31 B.C.L.R. (4th) 61, 202 B.C.A.C. 74, 331 W.A.C. 74, [2004] B.C.J. No. 1506 (B.C. C.A.) — considered N. (D.) v. Oak Bay (District) (2005), [2005] B.C.T.C. 1412, 261 D.L.R. (4th) 692, 2005 BCSC 1412, 2005 CarswellBC 2469, [2005] B.C.J. No. 2268 (B.C. S.C.) — considered Norris v. Gatien (2001), 2001 CarswellOnt 4006, 151 O.A.C. 394, 8 C.C.L.T. (3d) 220, 56 O.R. (3d) 441, 41 M.V.R. (4th) 260, [2001] O.J. No. 4415 (Ont. C.A.) — considered Odhavji Estate v. Woodhouse (2003), 19 C.C.L.T. (3d) 163, [2004] R.R.A. 1, 233 D.L.R. (4th) 193, 11 Admin. L.R. (4th) 45, [2003] 3 S.C.R. 263, 70 O.R. (3d) 253 (note), 2003 SCC 69, 2003 CarswellOnt 4851, 2003 CarswellOnt 4852, 312 N.R. 305, 180 O.A.C. 201, [2003] S.C.J. No. 74 (S.C.C.) — considered Project 360 Investments Ltd. v. Toronto Police Services Board (2009), 2009 CarswellOnt 3418, [2009] O.J. No. 2473 (Ont. S.C.J.) — considered 66 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

Schacht v. R. (1974), 3 N.R. 453, (sub nom. O’Rourke v. Schacht) 55 D.L.R. (3d) 96, 1974 CarswellOnt 251, 1974 CarswellOnt 251F, [1976] 1 S.C.R. 53 (S.C.C.) — considered Small v. Stec (2009), 186 C.R.R. (2d) 363, 2009 CarswellOnt 511 (Ont. S.C.J.) — considered Traversy v. Smith (2007), 52 C.C.L.T. (3d) 109, 2007 CarswellOnt 7452 (Ont. S.C.J.) — considered Wellington v. Ontario (2011), 2011 CarswellOnt 2334, 2011 ONCA 274, 81 C.C.L.T. (3d) 230, 333 D.L.R. (4th) 236, 105 O.R. (3d) 81, 277 O.A.C. 318 (Ont. C.A.) — considered Williams v. Canada (Attorney General) (2009), 2009 CarswellOnt 2378, 95 O.R. (3d) 401, 57 M.P.L.R. (4th) 164, 2009 ONCA 378, 66 C.C.L.T. (3d) 193, 249 O.A.C. 150, 70 C.P.C. (6th) 213, 310 D.L.R. (4th) 710, [2009] O.J. No. 1819 (Ont. C.A.) — referred to Statutes considered: Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267 Generally — referred to Police Act, R.S.B.C. 1996, c. 367 s. 34 — considered Regulations considered: Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267 Liquor Control and Licensing Regulation, B.C. Reg. 244/2002 Generally — referred to

ACTION by plaintiff seeking damages in negligence from both defendant municipality and police department relating to assault suffered by plaintiff at nightclub.

J. Vilvang, Q.C., T.G. Lewis, for Plaintiff J.M. Poole, J.A. Dowler, M. Chorlton, for Defendants, Corporation of Delta, Paul Uppal, Lorne Pike, Jim Cessford

A.F. Cullen J.: A. Introduction i. The Action 1 This case raises a number of legal and factual issues, but the foremost question is, in what circumstances will police officers be subject to a private law duty of care for acts or omissions committed in the exercise of their public responsibility to preserve the peace and prevent the commission of offences? Burnett v. Moir A.F. Cullen J. 67

2 The plaintiff, Garrett Burnett, was brutally assaulted early in the morning of December 26, 2006 while he was a patron of Cheers Night- club, located in the North Delta Inn (“NDI”), in the Municipality of Delta. The assault occurred as Mr. Burnett and other patrons were being pushed from the pub out through a door into an adjacent sidewalk and roadway. The assault was captured on video-tape from a surveillance camera which showed an assailant striking the plaintiff on the head with a bar stool taken from the premises after he apparently stumbled and fell to the ground as he and the others were being ejected. The video recording is not sufficiently clear to allow an identification of the assailant and the subsequent police investigation did not determine who he was. 3 As a result of the assault, the plaintiff has suffered a moderately severe traumatic brain injury which has had a significant impact on the course of his life over the past four and a half years and which will significantly compromise his future. 4 The plaintiff brought a law suit against the owner of the Cheers pub, Three Jay Holdings Ltd., doing business as the North Delta Inn and the Cheers pub, and John Doe 1 and John Doe 2 under action number S073004. Mr. Burnett subsequently commenced a second lawsuit against the owners, the management and certain employees of Cheers as well as against Chief Constable Jim Cessford (“Cessford”), Inspector Lorne Pike (“Pike”), Constable Paul Uppal (“Uppal”) of the Delta Police Depart- ment (“DPD”), the Corporation of Delta, John Does 1 to 10 and employees 1 - 10. For ease of reference, where appropriate I shall refer to the members of the DPD and the Corporation of Delta as the “Delta Defend- ants”. The Delta Defendants filed a Third Party Notice against Three Jay Holdings. The two actions were ordered to be tried together, but before the commencement of the trial, the plaintiff settled his claim against the owners, the management and the various employees of the NDI and Cheers pub and filed a Notice of Discontinuance against those parties. 5 In the result, this action proceeded only as against the Delta Defend- ants, alleging liability in negligence. The Delta Defendants do not dispute that the plaintiff has suffered significant loss and damage, but they take the primary position that the plaintiff has not established one or more of the elements essential to affixing them with liability in negligence. 6 The defendants’ alternative position is that the plaintiff’s own conduct contributed significantly to his injuries and he should be found contributorily negligent for the events leading to his loss. 68 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

7 For the reasons that follow, I conclude that the defendants are not liable to the plaintiff for negligence.

ii. The Plaintiff 8 The plaintiff at the time of trial was 35 years old. He grew up in the lower mainland area of British Columbia, with his mother, Vicci Burnett, his father, Bob Burnett, and his younger sister Andrea Burnett. He was married for a relatively short time, but divorced in 2004. 9 His sister, Andrea, presently lives with her fianc´e, Justin Lieberich. Mr. Burnett’s parents and sister live in New Westminster where he presently resides as well. 10 Both Mr. Burnett Sr. and Mrs. Burnett retired in 2006 from long-term careers with their respective employers. 11 At the time of his injury, the plaintiff was in a relationship with a woman by the name of Carla Guttierez. He had recently returned to Van- couver, on December 23, 2006 and was living with her in her family’s home in North Vancouver. 12 Growing up, the plaintiff was very active in sports including hockey, soccer, lacrosse, baseball, swimming, rugby and football, but as he got into high school, he concentrated on hockey and lacrosse as his primary sports. 13 He first left home at age 18 in 1993 to play hockey in a number of small towns in the interior of British Columbia. The following year he went to Ontario and played with two junior teams in the Ontario Hockey League. His aspiration was to play in the National Hockey League. 14 After starting the next year with a junior team, he ended up playing in the professional or semi-professional leagues, including the new IHL, CHL and ECHL. He played in the ECHL from 1995/96 to 1997/98 when he graduated to the AHL, initially with the Philadelphia Phantoms. He played in the AHL until the end of the 2002/2003 season except for a number of stints in the IHL. 15 In 2003/04 he realized his aspirations by signing with the Anaheim Mighty Ducks of the NHL and playing 39 games with that team. He scored one goal, made two assists and served 184 minutes in penalties. His primary role throughout his professional career was as an enforcer; a fact which is reflected in his statistics, showing relatively high penalty minutes and low point totals throughout the years which he played. Burnett v. Moir A.F. Cullen J. 69

16 In 2004/05 the NHL underwent a lockout. For part of that year, the plaintiff played with the Danbury Thrashers of the new IHL. The following year, 2005/06, he signed a contract with the Dallas Stars of the NHL, but was with Dallas only for the pre-season when he suffered a hand injury. He went on to play ten games with the Iowa Stars of the AHL and finished the season with Phoenix Road Runners of the ECHL, playing 29 games there. 17 The following year, he worked out in Vancouver with a number of NHL players including Trevor Linden, who testified as to his fitness and dedication, but he was unable to secure a contract with an NHL team or otherwise. Later on in 2006 he signed a contract with the St. Jean Sum- mum Chiefs in the LNAH, a league based in Quebec that features fighting as a prime attraction. 18 He was suspended from the league after playing four games with the Chiefs. The original suspension was for three games, but it was increased by the league to 36 games. The team did not appeal the suspension as Mr. Burnett’s injury, at the heart of this action, prevents him from playing any further hockey, makes such an appeal moot. 19 After his suspension which occurred on December 17, 2006, Mr. Bur- nett flew to Dallas where his vehicle was, and drove home to Vancouver from Dallas, arriving on December 23, 2006.

B. Liability - The Plaintiff’s Case i. The Pleadings 20 The plaintiff’s claim against the Delta Defendants rests on assertions of negligence both before and after the assault. It is not alleged that the Delta Defendants had any direct involvement in the specific events leading up to or comprising the attack on the plaintiff. Rather, it is alleged that the Delta Defendants, specifically, Cessford, Pike and Uppal, failed to properly identify Cheers as a nuisance to the public, a trap for the unwary, and to take pre-emptive steps to abate the danger it represented to potential patrons. 21 It is also alleged that in the wake of the attack upon the plaintiff, the Delta Defendants, specifically the defendants Uppal and Pike, were negligent in the way they responded, initially in seeking “first responder assistance for the plaintiff” and subsequently in investigating the assault, resulting in a failure to capture potential evidence of the identity of the 70 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

assailant or assailants responsible for the attack, and in the loss of a surveillance video containing a depiction of the events at issue. 22 More specifically, the allegations are that the defendants Cessford, Pike and Uppal failed to warn of the dangers of entering Cheers; that the defendants Cessford, Pike, Uppal and the Corporation of Delta were negligent in allowing Cheers to continue to operate, thereby creating a nuisance to the public and a trap for the unwary; that the defendants Cess- ford, Uppal and Pike failed to report incidents of violence at Cheers to the Corporation of Delta for by-law enforcement purposes or to the Li- quor Control and Licensing Branch (“LCLB”) of the Government of British Columbia; that the defendant Uppal failed to call for First Re- sponder assistance for the plaintiff; that the defendant Uppal failed to conduct a full and thorough investigation of the witnesses to the assault, and failed to keep any adequate record of such an investigation; and that the defendant Pike lost or destroyed a hard drive and/or video surveillance video depicting the events at issue.

ii. The Evidence (1) Statistics of Service Calls to NDI 23 A significant part of the foundation for the plaintiff’s action against the Delta Defendants comes from a letter directed to the plaintiff’s mother, Ms. Vicci Burnett, dated April 2, 2007 from the DPD in response to her request for information concerning “police statistics pertaining to the business ‘Cheers’ located at 11920 - 70th Avenue, Delta, B.C.” 24 The letter set out information gathered from “police statistics from all [their] records and databases beginning from January 1st, 1998 to March 21st, 2007.” According to the letter, there were a total of 2,410 police service calls to Cheers during that period, 231 of which were for assaults, 9 of which were for uttering threats, 10 of which were obstructing a peace officer, 138 for suspicious person/vehicle occurrences, 200 of which were for creating a disturbance, 217 for “unspecified assistance” and 1,605 of which were for “other”. 25 In the period for which such statistics were available, from February 2005 forward, there were a total of 38 arrests and charges forwarded to Crown Counsel, including 7 in 2005, 28 in 2006, and 3 to the end of March 2007. The yearly number of service calls were set out as follows: • 1998 - 292 Burnett v. Moir A.F. Cullen J. 71

• 1999 - 267 • 2000 - 267 • 2001 - 242 • 2002 - 331 • 2003 - 274 • 2004 - 243 • 2005 - 199 • 2006 - 258 • 2007 - 37

(2) The Anselmo Letter 26 There were additional documents evidencing the history of occurrences at Cheers. Council for the Municipality of Delta received a letter dated October 24, 2006 concerning an assault at Cheers, and complaining about the police response (the “Anselmo Letter”). Council referred the letter to Cessford for a review and report “including a review of the history of complaints relating to this property” for a future executive meeting. On November 20, 2006, Cessford reported orally at a council meeting that the specific matters raised in the letter had been dealt with and resolved to the satisfaction of the writer and no further action was required. According to the Minutes, he advised council that 392 complaints over the past 22 months had been registered, not all attributable to management of the bar and the management of the bar had cooperated with the department through the installation of security cameras, improved lighting and sound attenuation. 27 Council moved to have “staff report back regarding the specific nature of the police complaints related to the activities at the NDI and [the] potential success of show cause hearing.” The report from staff was scheduled to be given at a meeting on December 18, 2006, but that meeting was cancelled by council.

(3) The Liquor Inspector 28 The plaintiff called Kane Scott, an inspector with the LCLB since 1998. His area of responsibility includes White Rock, Delta and New Westminster. He swore an affidavit dated November 26, 2009 to which a number of documents were exhibited. The documents were admitted as authentic by the defendants. Mr. Scott’s evidence was that Cheers pub was part of the NDI which had several different liquor licenses, including 72 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

two liquor primary licenses for Cheers, another liquor primary license for a separate premises called “All Stars”, one food primary license and one license for a cold beer and wine store. 29 Mr. Scott conducted random inspections of the liquor licensed premises in his jurisdiction, primarily to inspect for over-crowding, intoxication and service to minors. He detailed the means of ensuring compliance, including discussions, correspondence and issuance of contravention notices which could lead to enforcement actions. He identified a schedule of penalties applicable to various contraventions including license suspensions and financial penalties for “riotous conduct”. He is the person responsible for initiating procedures against offending premises and would get the necessary information from his inspections, from complaints from members of the pubic, from information from other agencies, or information from police through the issuance of licensed premises checks (“LPCs”). The LPCs were issued on pre-printed forms provided to the police, copies of which were to be sent to the LCLB. He identified several issued LPCs and accompanying police reports issued in October of 1999 and September of 2001 relating to events at Cheers, indicating that the matters at issue were resolved without enforcement actions being taken. 30 In May of 2005, Mr. Scott received a report of “riotous conduct” at Cheers, but decided not to pursue further action. 31 In August 2005 in an inspection visit, he found evidence of minors being served at Cheers and of a fight which events were resolved by a monetary penalty being imposed after an enforcement action was taken. His last visit to the bar before the assault on the plaintiff was on Novem- ber 25th, 2006. On that occasion he prepared a Compliance and Enforce- ment Contravention Notice relating to service of a minor. 32 Mr. Scott was not aware of the number or nature of service calls to Cheers between 1998 and the end of March 2007 as set out in the summary sent to Ms. Burnett. He was only advised of the assault upon the plaintiff through media reports, but he testified there was no expectation that the police would advise the LCLB one way or the other of incidents related to premises. He had meetings with Cheers management about matters subject to regulation by the LCLB. Mr. Scott made numerous visits to Cheers where no enforcement action was taken as a result. He noted that Cheers had two separate areas, each subject to a separate liquor licence. His jurisdiction did not extend outside of the licensed bar areas or into the parking lot, and so he would not need to know what Burnett v. Moir A.F. Cullen J. 73

went on in the parking lot unless the police thought there was something he needed to know. The use of LPCs was discretionary by the police and that was only one of several ways for Mr. Scott and other liquor inspectors to determine what was going on at bars within their jurisdiction. He noted Cheers had staff at the front door, did “pat downs” for patrons, had security staff monitoring the conduct of patrons, used head sets to com- municate, and wore identifiable clothing. The Cheers approach to patron control was consistent with other similar bars. 33 Mr. Scott conducted approximately 32 inspections in all over the years from 1998 to 2006. He noted that altercations including pushing and shoving were occurrences at every bar and what occurred at Cheers was not unique to Cheers. He was aware bar staff would call the police when necessary and cooperate with the police when they attended. Those circumstances would factor into whether an enforcement action would be taken or not. If matters went to a hearing, the penalty he recommended would not always be imposed. In the case of serving the minor in 2005 he recommended a two day suspension, but the adjudicator imposed a $3,000 fine instead. 34 The more contraventions by a premise, the higher the penalty and serial contraventions could ultimately lead to closure. He was aware of other bars where that had happened but it was a last resort and there were many other enforcement steps to be taken before that ultimate one. 35 Mr. Scott had imposed a 24-hour suspension on one of the other premises at the NDI - All Stars - but not at Cheers. 36 He was never aware of any other occasion at Cheers where there was an assault as extreme as that on Mr. Burnett. He noted that the service calls to the NDI encompassed all the areas of the complex, not just Cheers. It would encompass the NDI, the cold beer and wine store, All Stars, and the Cheers pub. 37 He agreed that if fights began in the bar and spilled out onto the street or parking lot, that would be of interest to him and he would have the authority to deal with it and could investigate with a view to possible enforcement action. 38 Mr. Scott would not expect an LPC for each “little incident” at NDI - it was not something he could follow up on. 74 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

(4) The Licensed Premises Agreement 39 On July 2, 2002, Cheers entered into a Licensed Premises Agreement through its owners with the Corporation of Delta. The agreement provided in part, as follows: 3. The Owners undertake to work with Delta Police Department to reduce calls for Police attendance related to the operation of the North Delta Inn and to attend meetings upon request by Delta Police Department; 4. The following measures will be implemented by the Owners: ... 3. There will be complete support for, and cooperation with, the Delta Police Department Licenced Premises Walk-Throughs; 4. When incidents occur which require police involvement, all North Delta Inn staff will cooperate with police members and will not im- pede or obstruct the investigation in any way; ... 7. Security cameras, linked to video recording equipment, will be maintained on the interior as well as on the outside of the building on 70th Avenue, at the entrance to Cheers, at the south exits to Cheers and in the parking lot east of the building. Any videos that are so required will be surrendered immediately to the Delta Police Depart- ment for investigative or evidentiary purposes; ... 10. The Owners will employ security staff, who will be dressed in a clearly identifiable manner, to patrol the premises and to monitor the activity of the patrons immediately outside the North Delta Inn, particularly at closing time to ensure orderly dispersal. 40 The agreement also provided as follows: THE Corporation of Delta and The Owners recognize that participation in this Agreement is voluntary. Further, there is recognition that the Liquor Control and Licencing Act, the Policies of the Liquor Control and Licencing Board, City Bylaws, and other Statutes and Legislation shall at all times take precedence over this Agreement. The Owners have voluntarily entered into the Agreement. The Cor- poration of Delta would like to commend the North Delta Inn, its owners and principals, for their recognition of their civic responsibilities and their commitment to fostering a good working relationship with The Corporation of Delta and its neighbours. Burnett v. Moir A.F. Cullen J. 75

The Owners recognize that the Business Licence shall be subject to cancellation, after consideration by Council, if there has been violation of any conditions of this agreement or the proprietor has failed to maintain law and order on the premises, as stipulated in the Agreement. The Corporation of Delta is committed to the vitality of the 120th Street commercial core and welcomes the owners of the North Delta Inn as active partners in this process. 41 On an earlier occasion, on March 5, 1996, the regional manager of the LCLB wrote to Cessford. The letter concerned the then named “Delta Scottsdale Inn Hotel - Liquor Specials at Cheers Pub - complaint of Councillor Krista Engelland”. The letter referred to a meeting between DPD members and branch members and read in part, as follows: Our meeting explored the complaint of Councillor Engelland regarding constant requirement of police presence at the Delta Scottsdale to deal with drinking and fighting, particularly on cheap drink nights. We were advised by Insp. Rankin at that time that most problems occurred in the parking lot outside the licensed premises. Insp. Rankin also advised that Delta Police no longer write Licensed Pre- mise Check Slips (LPC’s) except when a violation of the Liquor Act or it’s Regulations are observed. This office has received no LPC’s for any licensed premises from your Department for about 3 years. Can we assume that no LPC’s were written or that perhaps you no longer forward LPC’s to this office for enforcement action? In light of the Attorney General’s indication that there will be increased monitoring of the licensed establishment to ensure compliance with the law, we are requesting an updated report on the current situation. In the interim, I wish to re-iterate that our Liquor Inspectors are prepared to work closely with your Department to monitor compliance in all licensed establishments in Delta Municipality including Scotts- dale Inn Hotel.

(5) Discovery of the Delta Defendants 42 The plaintiff also read in and relied on portions of Cessford’s examination for discovery in support of the contention that his conduct was negligent. 76 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

43 Cessford has been the chief of the DPD since February of 1995 and as such, was in charge of “structuring the intentions and directions of the police force” and agreed it is better to be “proactive rather than reactive”. 44 Chief Cessford noted in his discovery that the total number of service calls for DPD in 2006 was 30,341 and the total number of service calls to Cheers for the same period was 258. 45 He agreed that after the October 24, 2006 letter of complaint concerning the assault at Cheers, municipality staff were asked to prepare a report on the possibility of a show cause for Cheers, arising out of the number of police service calls to that location. He said that initiative would come not from the police, but from the municipality’s staff through the municipality’s legal department. 46 Cessford was aware of the requirement for pubs like Cheers to be licensed by the LCLB to be operated as a liquor selling establishment. There is no policy that a Delta police officer must report “each and every response to a service call to a liquor selling establishment, but they were instructed to advise the LCLB if they have problems and there are issues occurring at a particular bar.” 47 He noted that the DPD put out monthly bulletins on its website, in part to alert the public to areas of criminal activity. The DPD did not provide any statistics of service calls to Cheers to LCLB representatives. 48 There is no record of any response to the LCLB general manager’s letter of March 5, 1996. He only recalled a meeting between his staff and management of Cheers to discuss assaults on one occasion when a shooting took place at a hotdog stand in the parking lot. 49 There was no meeting with the owners and management of Cheers over the assault on the plaintiff and no report was ever filed with Crown Counsel seeking approval of charges. 50 The only licensed premises checks which were kept by the DPD in relation to Cheers were those contained in the documents provided to the plaintiff by the DPD marked as Exhibit 9 at the Examination for Discov- ery of Cessford. 51 The plaintiff also relied on read-ins of Uppal’s Examination for Dis- covery. Uppal acknowledged knowing some of the management at Cheers. He had never been asked to compile or record his attendance at Cheers prior to the assault on the plaintiff. He had never completed any LPCs in respect of Cheers or otherwise. Burnett v. Moir A.F. Cullen J. 77

52 Portions of Pike’s Examination for Discovery were also read in by the plaintiff. Pike had been with the DPD since 1986. He testified he could not clarify the bar as “rough” in the sense of a likelihood on a weekly basis of an assault taking place, but he would not “take his wife there for a drink”. Pike testified there were no statistics kept on Cheers by the DPD and he was not aware of any warnings, suspensions, or citations issued to Cheers. He believed the compilation of LPCs was part of DPD’s officers’ duties to report to the LCLB to keep it informed of occurrences at licensed premises. He did not believe any LPCs were written with respect to the assault on the plaintiff.

(6) The Evidence of the Plaintiff 53 In his evidence, Mr. Burnett was unable to cast much light on the specific events leading up to and comprising the assault on him because of the nature and extent of his head injury and accompanying memory loss. 54 He recalled being at his sister’s apartment in New Westminster on Christmas morning. The previous evening (Christmas Eve) he had been with his girlfriend and her family in North Vancouver. He was at his sister’s with his girlfriend, Carla, his sister, her fianc´e Justin Lieberich, and for a period, his parents. He and Carla then returned to her parents’ place. The plaintiff made a number of telephone calls and ended up talking to Greg Allan, a friend or acquaintance from Vancouver. He arranged to meet with Greg later for dinner downtown. He did not recall if he had anything to drink. They then went looking for some place where people were “up-beat and celebrating”. They went to several places and then Greg suggested they go to Cheers in Delta. He did not recall going to Cheers or how he got there. The surveillance video showed him, Greg Allan and Greg Allan’s girlfriend Sharon Catanghal, but he did not inde- pendently remember whether Sharon was with them or not. 55 Mr. Burnett’s next memory was being in the hospital, with his parents, sister and his sister’s fianc´e present. 56 Mr. Burnett testified he was not the sort of person to get involved in fights off the ice and had not before. He would tend to try and calm things down. Mr. Burnett testified he barely drank alcohol because of his training regime and need to eat properly. Even in the off-season he would train hard. He denied ever using anabolic steroids, but said he used supplements that would parallel the kind of benefit he would get 78 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

from steroids, but “without breaking the law”. He would get the supplements from supplement stores in the U.S. and Canada. 57 Mr. Burnett saw a Dr. Lee in California, where he was prescribed several medications including testosterone, but testified it had to do with his own sexual heath, not to counteract the effects of steroids. He never failed any tests for the use of steroids or other drugs during his hockey career. Mr. Burnett acknowledged having used cocaine before. He testified it was “very minimally”. He “never actually purchased it” himself and used it “only a handful of times” if something was going on or at a gathering and he was “pressured into it”. He used it in the off-season at parties. Mr. Burnett did not believe he used cocaine in the summer of 2006 while he was training in Vancouver and playing lacrosse, or in the fall before he went to play in Quebec, or while playing in Quebec. He did not use any cocaine after leaving Quebec and returning to Vancouver on December 23, 2006. 58 It was pointed out to Mr. Burnett that some blood test results in Van- couver taken after the assault showed an amount of cocaine in his blood. He said he did not remember taking any cocaine, but if there was some in his blood, he “could see a possibility someone had some and [he] did a bit.” 59 In cross-examination, Mr. Burnett was probed about the use of “en- hancements” for his hockey career. Although he maintained that he only used supplements that mimic the effects of anabolic steroids and his use of testosterone and other drugs had nothing to do with off-setting the effects of actual steroid use, I am satisfied on all the evidence including his examination for discovery on the balance of probabilities that the plaintiff did indeed use steroids to enhance his performance as a professional athlete. Indeed, in argument, his counsel fairly conceded that likelihood and attributed the plaintiff’s reticence to admit it to the effect of his head injury and accompanying diminished judgment. 60 The plaintiff acknowledged being in bars when fights or altercations broke out. He agreed one of the bars he went to both before and after his injury was the Roxy on Granville Street in downtown Vancouver. He was aware of altercations there and aware staff would sometimes eject would-be combatants. He had seen fights on the streets outside many bars. He made sure he was “not involved in that kind of stuff”. 61 Mr. Burnett had not lived in Delta since he was five years old, did not read the local papers, and had never read the DPD website before the assault upon him. Burnett v. Moir A.F. Cullen J. 79

62 The plaintiff did not call Greg Allan as a witness. Mr. Burnett’s mother testified that attempts to locate him and his girlfriend Sharon Cat- anghal were unsuccessful.

C. Liability - The Defendant’s Evidence 63 At the close of the plaintiff’s case, the defendants brought a no evidence motion seeking to have the action dismissed on the basis that there was no evidence to support at least one essential element relating to each cause of action that makes up the plaintiff’s case. I dismissed the application holding that there was some evidence to consider in respect of each of the essential elements of negligence which was in substance, the basis of the plaintiff’s claim against the Delta Defendants. As a result, the defendants called a body of evidence that addressed both the issue of liability, and, in the alternative, damages. 64 It was the defendant’s ultimate submission that taken as a whole, the evidence fails to establish, to the required degree, the essential elements of negligence. In particular, the defendants in argument focussed on the alleged deficiencies in the evidence cogent to establishing a duty of care, and also on the absence of sufficient evidence relevant to the issue of a standard of care or that the acts or omissions of the defendants amounted to a breach of such a standard.

i. Expert Report of Dr. John McNeill 65 The defendants rely on the report of Dr. John McNeill, a Professor and Dean Emeritus, in the Faculty of Pharmacological Sciences at the University of British Columbia to provide expert opinion evidence on two questions that potentially relate to the issue of liability: 1. what effect, if any, would the alcohol and cocaine present in Mr. Burnett’s system likely have had on his physical condition, mental state and behaviour on the evening and early morning of Decem- ber 25/26, 2006? 2. assuming Mr. Burnett used steroids in 1998 - 2004 and in Novem- ber and December 2006, what effect, if any, would this use have had on his physical condition, mental state and behaviour on the evening and early morning of December 25/26, 2006. 66 The assumptions on which Dr. McNeill based his opinion or set out in his report as follows: For the purpose of providing my opinion, I have been asked to assume the following: 80 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

1. Garrett Burnett was born on September 23, 1975. 2. Garrett Burnett began using steroids after a major knee injury sustained during the 1998/1999 season of the American Hockey League. Following that, he continued to use a variety of nutritional supplements and steroids, including anabolic steroids that he injected, to assist with his training for professional hockey throughout most of his career. He continued to use steroids in order to remain competitive with other players, improve his endurance and to assist him in bouncing back from his injury. 3. Between the end of summer 2004 and mid-November 2006, Garrett Burnett continued to take caffeine and ephedrine but did not use anabolic steroids because the NHL began drug testing and he did not want to be caught using illegal supplements. 4. As of mid-November 2006, Garrett Burnett used oil-based steroids to assist with his training in preparation for playing in the Ligue Nord-Americaine de Hockey (LNAH), a semi-professional league which does not test players for steroids. 5. In early December 2006, Burnett began playing professional hockey for the St. Jean Chiefs of the Ligue Nord-Americaine de Hockey (LNAH). 6. On the night of the incident, December 25, 2006, Garrett Bur- nett was approximately 6'3" tall and weighed approximately 240 pounds. 7. On the night of the incident, Burnett had consumed a quantity of alcohol and a quantity of cocaine. 8. From 2004 to 2006, Garrett Burnett was prescribed medications and/or supplements to enhance his testosterone levels. 9. Following the incident, Garrett Burnett continued to take medications and/or supplements to enhance his testosterone. 67 Dr. McNeill noted, that in his review of Mr. Burnett’s medical records “there are numerous references to a drug and alcohol problem”. He also noted that while Mr. Burnett was at G.F. Strong Rehabilitation Centre, both as an in-patient and out-patient following the assault, he was seen by a drug and alcohol counsellor. 68 So far as the alcohol present in Mr. Burnett’s system was concerned, Dr. McNeill reasoned that if at the time of testing he had 123 mg per 100 ml of blood (what the plasma alcohol reading of 29.8 mm ultimately amounts to) he would have had between .133 to .153 mg per 100 ml of Burnett v. Moir A.F. Cullen J. 81

blood at the time of the assault. He noted that at that level, “individuals are impaired and are more likely to engage in arguments and physical confrontations.” 69 Insofar as the presence of cocaine in Mr. Burnett’s system is concerned, Dr. McNeill noted that “it is a stimulant drug”. It “can produce arousal, alertness, wakefulness and euphoria with an increased sense of energy, alertness and hyper-vigilance.” Dr. McNeill cited an article that stated “that both cocaine and alcohol increase violence and decrease impulse control” and when given together, “their effects are at least addi- tive”. Dr. McNeill noted: In the case of Mr. Burnett, there is the possibility of the drugs acting together in this manner. However, we do not know the quantity of cocaine taken by Mr. Burnett or when it was taken. 70 In terms of the plaintiff’s steroid use and its effect upon him, Dr. Mc- Neill noted that “anabolic steroids are drugs that mimic the effects of the male sex hormone testosterone”. He referenced a review which states that “aggression and violence, mania psychosis and suicide have been associated with anabolic steroid abuse”. He concluded that “steroids taken in November and December of 2006 could certainly have influ- enced Mr. Burnett’s mental state and affected his behaviour on Decem- ber 26, 2006 at the time of the incident.” He noted “anabolic steroid use from 1998 to 2004 would most likely not affect his mental state in 2006.” 71 He noted, based on his review of Mr. Burnett’s medical records, that Mr. Burnett was receiving treatments for adverse effects of steroid use in 2008 and 2009. The effects noted by Dr. Dahl, an endocrinologist who was treating Mr. Burnett in 2008 and 2009 for the effects of steroid use, according to Dr. McNeill “indicate either a long term adverse effect of anabolic steroids or the continued use of those drugs”. He noted “long- term effects on the personality including hypomania aggression and depression have been found in some individuals”. 72 Dr. McNeill concluded: In summary, Mr. Burnett had consumed three types of drugs, all of which are known to increase aggressiveness prior to the incident of December 26, 2006. The amount of alcohol consumed was calculated and found to be in a range that produces decreased inhibitions and increased aggression. The amount of anabolic steroids consumed was significant since side effects of their use were noted. The amount of cocaine consumed is not known and it may or may not have contributed to Mr. Burnett’s behaviour on that date. 82 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

ii. The Evidence of Dr. James Kennedy 73 Dr. James Kennedy is an expert in internal medicine and clinical pharmacology and toxicology and was able to give opinion evidence on the effects of the use of alcohol, cocaine and anabolic steroids. He was retained by the Delta Defendants to proffer an opinion on the effects of the use of those substances on the plaintiff on the night in question. 74 By an agreed statement of facts, it was established that analysis of a blood sample and a urine sample from the plaintiff after the assault at 2:40 a.m. on December 26, 2006 revealed the presence of alcohol and cocaine. Dr. Kennedy estimated Mr. Burnett’s blood alcohol reading at the time of the assault to be approximately .139 - .146 mg/100 ml of blood. The urine test for cocaine was not quantitative but the positive test indicated a quantity of at least 300 nanograms of cocaine per millilitre. Dr. Kennedy noted that with the presence of alcohol, cocaine has a life of two to two and a half hours, which allowed him to conclude at the time of the assault at about 1:40 a.m., Mr. Burnett was under the influence of cocaine. Dr. Kennedy testified cocaine increases a person’s level of energy, self-confidence, and gregariousness. It can make a person feel self- confident, powerful and sometimes stimulate aggression. It produces adrenaline which is part of the “flight or fight” mechanism. In circumstances of a confrontation with others, a person having ingested cocaine is more likely to be aggressive and more violent than if he had not ingested it. Taking alcohol with cocaine will prolong the effects of the cocaine. Alcohol is a disinhibitor and will break down day to day control mechanisms. The combination of alcohol and cocaine would have an ad- ditive effect and would render a subject more likely to be aggressive and prone to violence. 75 As far as steroids are concerned, the effect is very variable, and dependent on amounts in the time frame over which it was used. It can lead to feelings of power, inner strength and lack of judgment depending on the circumstances. It can lead to impairment of impulse control. 76 If a person had been taking steroids within the last two months, used cocaine within the last two hours and had alcohol measurements of .37 to .146, he would “be asking for trouble”. The combination of drugs would amplify violent or combative tendencies. 77 Dr. Kennedy reviewed the clinical records of Dr. Lester Lee who prescribed various medications to the plaintiff in California. In his report of Burnett v. Moir A.F. Cullen J. 83

January 10, 2011, Dr. Kennedy detailed his review of Dr. Lee’s notes as follows: Opinion: Anabolic steroid use has many and varied long term toxic effects. The likelihood of both short and long term toxic effects is greatly increased with the use of multiple steroid drugs at the same time in various patterns. A common pattern is 1 to 3 times weekly injections, in 4 to 12 week cycles. Dr. Lester Lee’s notes from Janu- ary 2004 to June 2006 describe such a coincident multiplicity of steroid drug use by Mr. Burnett over this time. He already has toxic effects of previous anabolic steroid use when he sees Dr. Lee in January, 2004: hypogonadism (long term effect), low HDL choles- terol (increased cardiac risk), and mild liver damage (short term effect). Over this time, Dr. Lee further prescribes both oil-based and injectible steroids, and other oral agents. These drugs include human Growth Hormone (GH) for muscle bulk and strength, human Chori- onic Gonadotropin (hCG) and Clomid to stimulate testosterone production, and Tamoxifen to block the effects of steroid-induced es- trogen (gynecomastia). He has this tender breast enlargement toxic effect of steroid use during the time that he saw Dr. Lee. Also during this time he had a thigh abscess, secondary to oil-based steroid injec- tion, another acute side effect. Dr. Lee also prescribed Zoloft, an anti depressant, implying that Dr. Lee has diagnosed a mood disorder. 78 Dr. Kennedy agreed with the proposition put to him in cross-examination that the circumstances in which a person consumes alcohol produced greater changes than the alcohol itself. He agreed that if the circumstances are happy and tranquil as opposed to threatening, that will have a significant influence on the effect of the alcohol, and that is the same with cocaine. He agreed it is the existing state of mind that is exaggerated. If the person affected by alcohol and cocaine went into a bar with fights going on, he might react in an exaggerated way. If confronted by violence, he would be more likely to react in an exaggerated way. He agreed that at the plaintiff’s level of alcohol ingestion, he would be moderately intoxicated. He also agreed that cocaine stays in the body for a longer period than it has a psychological effect for and there is nothing to permit him to say that the plaintiff was under the influence of cocaine at the time of the assault as the psychological effects of cocaine will disap- pear after one and a half to two hours. 79 As far as steroids are concerned, the psychological effects vary. As with alcohol, the effect of steroids could vary in reaction to the circumstances and rage has to be triggered by some external event. 84 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

iii. The Evidence of Jeremy Wocknitz 80 Jeremy Wocknitz was employed by Cheers as part of the security team for about two and a half years prior to the incident. He was one of the individual defendants in the settled action against Cheers. He was, at the relevant time, the head of security. He was responsible for scheduling security personnel, the overall supervision and reporting of security and of reporting to management. Decisions on how to deal with security issues in the bar were ultimately his. 81 The Cheers bar was a split level with two separate spaces. The total capacity was about 600 people. It was open Thursday to Saturday and on long weekends from 9:00 p.m. to 2:00 a.m. There was music and a dance floor and on special occasions the bar had live bands. The clientele was diverse, but mostly under 25. It was only suspected, not confirmed, that gang members attended but the wearing of gang colours was strictly prohibited. 82 The security staff were usually positioned two at the front door, two in the entrance past the coat check area, one in the smoking room, one at the washrooms, one at the rear exit and one on the stairs between the two levels. The job of security staff was to observe the behaviour of patrons and prevent anything from happening. 83 The security staff and management had two way radios with ear pieces. There were codes to identify the levels of response required for an incident or occurrence. The bar itself was broken down into eight sections. The objective was to calm people down or get them to leave if they remained too agitated to calm down. The term “Code Red” required an immediate response to an ongoing physical altercation. The term “Code Yellow” was used to identify an argument or potential problem. Code Yellows would happen three to five times a night. Code Red sometimes none, sometimes two. Police would be called if any injury occurred or the fighting carried on or broke out outside the bar. The management of Cheers would make the call and police would respond quickly, within two to three minutes. 84 Repeat offenders would be barred from the pub. If they offended a second time, they would be barred a week. If they offended a third time, they would be barred indefinitely. He had barred 12 - 13 people in the course of his time at Cheers. 85 Occasionally it would be necessary to call police to deal with those who were being refused entry to Cheers. Burnett v. Moir A.F. Cullen J. 85

86 Police would make regular nightly checks and sometimes do walk- throughs of the bar and check the identification of the patrons. At closing time, police would make their presence known and would routinely patrol the parking lot, and monitor the park located across the street. The police presence both inside and outside the bar was supported by the management and staff. 87 Liquor inspectors would also come by for checks. Mr. Wocknitz estimated at least one time a month a liquor inspector would come and do a walk through the bar and conduct surveillance of anything considered necessary. 88 He was present on the evening that Mr. Burnett was assaulted and injured. The regular security staff were present. He was at the front door and heard a “Code Yellow” being called over the radio near the exit doors of the upper area of the bar. He closed the front doors and went to the area of the exit doors in the upper bar area. When he got there, he saw the door staff trying to intervene in what appeared to be an argument that had started. There appeared to be two groups: one Caucasian, the other East Indian. Nothing physical had happened at that point. He tried to intervene to calm the parties down. He spoke to Mr. Burnett and told him the night was over, it was not worth it, and they should go their separate ways. Another security staffer, Grant Hart, was already dealing with the East Indian group. He described Mr. Burnett as agitated and not responsive to his comments. There appeared to be a couple of other people with him. Mr. Burnett reached over to a nearby table and picked up and threw a highball glass at the other group. The two groups then con- verged and it became a physical confrontation. The immediate response of the security staff was to eject everyone involved. They could not separate, so they surrounded and pushed all the combatants out the door. The security staff were identifiable by their clothes. They wore black pants, white shirts and some had black arm bands. 89 As the staff pushed the group out the door, punches were being thrown between the two groups. The plaintiff stumbled and fell onto his hands and knees. This occurred about 30 seconds after he threw the glass. After that, Mr. Wocknitz saw the flash of a stool being swung outside but then lost sight of it while still removing other combatants. He did not see anyone actually being hit. He went outside briefly. 90 He had watched the video from the surveillance camera and identified Grant Hart as the first security person out through the doorway. He noted the plaintiff on the ground, injured, but did not see who had swung the 86 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

stool. He originally told the police he thought it was someone named Ricky Guy who he saw outside in the area. He testified he just assumed it was Ricky Guy although he had not known him to be in any previous altercations. 91 He was aware that in 2005, there were two incidents at Cheers involving stabbings. That resulted in an increase in security at the front door and physical searches or “pat downs” at the coat check area. In 2006 there was another stabbing injury which led to having a female staff member to search women as well. He wasn’t aware of any incidents involving the use of bar stools as weapons and he regarded significant injuries as being uncommon. 92 In cross-examination, he noted after the incident he went to the front doors to let patrons out. He agreed he was at the front door when the plaintiff came in, but could recall no issues with the plaintiff and he did not see him again until the confrontation upstairs. The police arrived because of the assault and injury to the plaintiff. He assumed that much of the crowd had dispersed by the time the police arrived. 93 He estimated that there were around 12 - 20 involved in the two groups. Code Yellow meant it was an argument that could escalate. He attended, and his brother Tyler Wocknitz was present too. 94 When the police arrived, he did not speak with them or tell them what happened. He made a brief note, but did not talk to the police until two years later. When he did talk to the police, he told them he thought the plaintiff was in the bar with some bikers; although he did not arrive with bikers. 95 After the assault he and Sunny Jara, one of the bar managers, returned three bar stools from outside to the inside of the bar. He said he did not approach the police because he was taking care of the premises which still had many patrons in it. He denied his failure to talk to police was because of outstanding warrants for his arrest at the time. He agreed he was in custody when the police finally approached him for a statement in December 2008. He was aware they were on the scene, but never approached them, despite what he saw and believed to have happened. 96 There was a meeting of the staff afterward to discuss the incident, but he could not recall speaking to Grant Hart about what he saw. He viewed some of the surveillance video and identified his brother as having ejected a patron at about 1:32 a.m., seven or eight minutes before the assault. Burnett v. Moir A.F. Cullen J. 87

97 He was then shown a segment of the video, apparently depicting another incident after the assault but could not recall it. He could not recall picking up the stool he brought inside, but he recalled Sunny Jara taking two stools inside. 98 He was cross-examined on his examination for discovery at question number 222 where he testified as follows: Q And you saw someone that you knew to be Ricky Guy with a stool? A Yes. 99 He was asked if the answer was true, and he said he never actually saw the stool connect, but that’s who he believed hit the plaintiff. The following questions and answers were put to him: Q Do you remember telling Mr. - Constable West that you saw Mr. Guy hit Mr. Burnett with a stool? A I remember the conversation. Q And you remember telling him what I just read to you, don’t you? A No. Q You went on to tell Constable West that then the police were called, and they showed up. And then you say: They showed up and started dispersing the fight. A little further down you say: No one questioned us. We were told to go back to our job and that was the end of that. Now, on the night of - the early morning hours of the 26th after this incident did you talk to any police officers at all about this incident? A We explained the incident. We didn’t give a formal statement. Q Well, when you say “we”, did you talk to a police officer? A Yes. Q Did you explain to the police officer what had happened? A Yes. Q You said to Constable West, “No one questioned us.”” A We didn’t give a formal statement, no. Q That’s what you meant when you say that? A Yes. 88 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

100 He testified he couldn’t recall if he had a conversation with the police at the scene. 101 He testified he believed he saw the glint of the stool when it was in Ricky Guy’s hands, but “never saw it 100% all the way through”. 102 He was also cross-examined on a statement he gave to Constable Al West (“West”) of the DPD on December 16, 2008. There he asserted the plaintiff came in with a group of known bikers and he assumed that the plaintiff was a biker. He agreed that there could be one fight a week “some more, some less”. People sometimes got injured and required medical attention. He said ambulances were fairly regular occurrences “it would be no surprise to see ambulances one time a week in that complex”. He said one reason for ambulance attendance was over service, another was due to injury from fights. He agreed the liquor inspector would show up for inspections fairly early in the evening when the bar was not very full and relatively quiet. He did not agree there were three to four small fights and one big one every week. 103 In his statement to West, he told him the plaintiff was throwing “highball glasses”. He also said in the statement as follows: A We didn’t get involved. They said that it was - you know, it was kind of settled. The other gang was predominantly East Indian and Asian. The next thing we know someone threw a glass from one side of the bar to the other, striking - striking the East Indians. A fight broke out inside the bar. Mister - Mr. Burnett was basically the first one in there throwing glassware. He was throwing highball glasses at them, trying to get at them. 104 He said he could not recall saying that or what it meant. 105 In his statement to West, he also said as follows: A The fight was taking place in the rear corner doors. There was fighting back and forth. Basically, we pushed the entire fight outside - Q Okay. A - to, you know, get it out that way from the bar, away from the patrons. Several bartenders and porters and bussers came to help us with the fight because it was a fairly large fight. And when we got outside, Mr. Burnett fell and tripped over the curb. After he tripped over the curb - what’s his name? I think his name is Ricky. Ricky Guy. Q Ricky what, sorry? A Ricky Guy. Burnett v. Moir A.F. Cullen J. 89

Q Guy? A I believe that’s the name. Q Okay. A Had a stool. Q Okay. A We went to get the stool from him. He brought the stool down on top of Mr. Burnett’s head. He went - Mr. Burnett went down. Collapsed. One of his friends that he was with which was, you know, a group white guys - Q Right. A - knocked out Mr. Guy. He was on the ground unconscious as well. At this point, we continued to deal with the rest of the fights because there was glassware. There was everything else. Basically two guys on the ground is less guys that we have to deal with. So the Delta PD was called. I don’t know who called them, but I know that they were called. They showed up. They showed up and started dispersing the fight. The only people that we let back into the bar were - were staff, and everybody else was kind of questioned at that point and that was it. No one questioned us. We were told to go back to our job and that was the end of that. 106 He testified he could not recall telling West that. He recalled a guy being hit and going down. He then referred to Greg Allan as the person he referred to as Guy being hit and going down. He agreed he did not tell the police when they arrived on the scene that Ricky Guy was involved in the assault. 107 He said there were some incidents that occurred at All Stars and about once a month he would be called to deal with a situation there. He agreed he didn’t tell the police at the time of the incidents that he saw Mr. Burnett being hit, that he took a stool from Ricky Guy; that he saw Mr. Burnett throw a glass or that Mr. Burnett was part of some biker gang. He agreed he did say all of those things when he was interviewed at the Surrey Pre-Trial on December 16, 2008. 108 He was not shown any video by the police. He disagreed that the call before the assault was a Code Red and he disagreed with the suggestion that he never said anything to Garrett Burnett. He denied the fight was on when he arrived and that he just pushed the protagonists outside. 90 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

109 He testified he expected the police would investigate and take a statement from him while he still worked there, but that did not happen. He said he never saw anyone apart from the plaintiff actually throw a glass, but he did hear glasses breaking so he assumed others had as well.

iv. The Evidence of Tyler Wocknitz 110 Tyler Wocknitz is Jeremy Wocknitz’s brother. He was employed as security staff at Cheers the night the plaintiff was assaulted. He had worked at Cheers for less than a year at that time. He estimated that there were two to three Code Yellows a night and maybe one Code Red per weekend. The management and staff at Cheers were in favour of calling the police whenever necessary. 111 On the evening of the assault, a few minutes before it occurred, he removed a patron, but he couldn’t recall why, perhaps it was to do with fighting. 112 It was not unusual to see the police around outside the bar and they would come inside and do walk-throughs two to three times a month. Police vehicles were often in the parking lot around closing time. 113 He recalled the incident as starting with a Code Yellow. He went to the area and saw two large groups having a verbal confrontation. He said his brother Jeremy was talking to them, trying to defuse the situation but it escalated when the plaintiff threw a highball glass. It went into the crowd. He described Mr. Burnett as being in an aggressive mood and after the glass was thrown, people started throwing punches. Grant Hart and his brother got out of the middle of the confrontation; other staff members assisted them by surrounding the group and pushing it into the outside area. 114 He was one of the last people out and saw the plaintiff on the ground. There were people with bottles and stools. He took one stool away - he was not aware that Mr. Burnett had been hit with a stool. He assumed that the person holding the stool had struck Mr. Burnett, but did not see it. He described the person he took the stool from as an East Indian male. He said they waited for the crowd to disperse and then went inside. He did not recall where he left the stool. 115 He said people were grabbing stools as they were being pushed outside the door. Mr. Burnett was throwing punches as were others. He said nobody was looking for a way out of the confrontation. Mr. Burnett was not looking for a way out of the confrontation or playing a peace- maker’s role. The fight broke out when he threw a glass. Burnett v. Moir A.F. Cullen J. 91

116 He first spoke to the police in February 2007. 117 He could not recall seeing his brother approach anyone and take a stool away. When he got outside, he saw a stool in someone’s hand and he took it so it could not be used as a weapon. It was not Ricky Guy he took the stool from and he never saw anyone hit Garrett Burnett with a stool. 118 When he was interviewed by West on February 1, 2007 he did not mention that his brother was present; he did not mention that a glass was thrown or how the fight started. He agreed he said, and it was true, that “there was usually a big fight every weekend; at least one - we get small ones all the time - probably one-half dozen a weekend”. 119 He never saw anyone strike the plaintiff with a stool and his brother never told him Ricky Guy struck the plaintiff with a stool. He did not recall if he told his brother Ricky Guy did not hit the plaintiff with a stool. He testified he believed Ricky Guy was there at the scene and was pushed out the door with the others, but he did not recall seeing him outside. 120 He said by small fights he meant verbal confrontations; big ones were not necessarily related to the number of participants. Anything that came to blows did not always result in an injury.

v. The Evidence of Cory Philpot 121 Cory Philpot is a former football player who was employed as a manager at Cheers between 1995 and 2005 and was involved in security issues at the establishment. After leaving Cheers around Christmas of 2005, he continued to do some promotions for Monday night football at All Stars, the adjacent bar, and he visited Cheers two to three nights a week. He was present on the evening of December 25th and 26th, 2006. He was in the lower bar of Cheers with some friends. He saw a large man come into the bar some time after midnight and walk into the crowd and bump into people without apologizing. He described the male as having dark hair, a dark shirt and jeans. He described his attitude as not caring, just pushing his way through. He saw him go to the upper bar after having a drink. He became aware of the assault the next day. In cross-examination he said he had no dealings in his capacity of manager of Cheers with Cessford of the DPD, but did have dealings with Inspector Charna. He had a conversation with DPD about cheap drink nights. He said the police thought it was a problem and mentioned that to the management and that they would not support it. He said while he was there, security 92 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

did not use numerical or colour codes. They kept a list of banned people at the front door. 122 He was working with the new ownership of the NDI/Cheers. He took over when George Holmes was let go. The bar went in a different direction to appeal to different people after it was sold in 2007. He did not think there were frequent fights or police calls to Cheers; some calls went to All Stars. He agreed there were fights in the parking lot and there were two stabbings in 2005. He agreed that under the old regime, people did not feel safe.

D. Police Witnesses i. Constable Uppal 123 Uppal began his police career with training on the job in May 2004. In December 2006 he was assigned to general duties with the DPD. His role was to respond to calls as they came in and perform general traffic duties. He was familiar with Cheers and the NDI. He would attend at Cheers in response to general calls from time to time and sometimes would go to the Cheers location to be “proactive”. The calls which he responded to would depend on the days he was working. Some days were quieter than others. 124 He sometimes would go at closing time to the general area to monitor and ensure patrons would leave in an orderly fashion and he would stand by and keep the peace. He saw a few altercations or fights in the parking lot and would walk over to break them up. He said that a police presence was often enough to disperse groups who might be inclined to fight. He experienced no difficulties in dealing with the staff or management of Cheers. Occasionally he would be asked to park his police vehicle in the parking lot to establish a police presence or to check identifications at the entrance. That occurred in August and September of 2005. 125 The subject of Cheers would occasionally come up at briefings if there was a particular promotion or special event going on. The police would check on issues of over-service, over-crowding or any problematic people attending at the bar. 126 He was on shift overnight December 25/26, 2006. He heard the dispatch to Cheers and because he was close, he let dispatch know and attended to the scene. He identified a transcript of the dispatch as depicting the communication. The dispatch indicated that the call to police was initiated by Emergency Health Services, which meant that they were ei- Burnett v. Moir A.F. Cullen J. 93

ther already at the scene or had been called to attend and were proceeding there. 127 He arrived within a few moments. According to the surveillance video taken from surveillance cameras at the Cheers pub, his arrival was at 1:43 a.m. He had already been told by dispatch that “EHS is en route” before he got there. After he got there, he requested that dispatch “send him EHS Code 3”. Code 3 meant he requested EHS get there as quickly as possible. He made that request within the first minute or so of his arrival on the scene. On his arrival, he saw the plaintiff on the ground unconscious being tended to by what turned out to be an off duty fire fighter named Steve Brewer, who had placed the plaintiff in a recovery position. It was at that time that he called for EHS to arrive promptly. 128 He noted the plaintiff’s friend Greg Allan in the company of a female person. Allan had a ripped shirt and blood on his face. Uppal determined he was with the plaintiff - he learned that both from Greg Allan and from people standing at the door. According to Uppal, Greg Allan told him that the assailants were “long gone” and indeed he reported that back to dispatch. 129 He described Allan himself as “quite agitated, worked up, angry, very uncooperative”. He did not provide Uppal with “the information he needed in a timely manner”. Uppal’s synopsis which he inputted into his computer at 2:44 a.m. read as follows: Fight at Cheers. Upon police arrival, observed BURNETT lying in a small pool of blood and his friend ALLAN and CATANGHAL standing near by. ALLAN was also involved in the fight and sustained several cuts to his face. ALLAN was hostile and uncooperative. ALLAN iniatilly [sic] declined to be checked by EHS. BUR- NETT transported to RCH and ALLAN transported to SMH. No witness available that were able to recall what had transpired. AL- LAN would only say that they were possibly hit by a chair and physi- cally assaulted by a group of Caucasians [sic] males who had fled the scene prior to police arrival. ALLAN unwilling to provide identification. Identification obtained by girlfriend CATANGHAL. 130 He said that is what Allan had told him about the events. 131 Subsequently, Uppal completed a longer report at the end of his shift. In it he recounted a further discussion he had with Allan, later by cell phone. He summarized that conversation in his report as follows: Cst P UPPAL spoke with Greg by cell phone requesting further details of the incident. Greg indicated that he had brushed up against 94 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

some u/k male inside Cheers and that the other male’s drink had spilled, which lead [sic] to a physical fight between them and Greg and Garrett. All parties were kicked out of the club. As soon as they exited, the other group was already waiting outside. Greg indicated one or two of the males had in their possession chairs that they used to assault Greg and Garrett. Cst P UPPAL requests day shift member to attend Cheers in an effort to obtain surveillance footage of the incident. 132 Allan gave no further description of the assailants. 133 Uppal requested “day shift members” to attend Cheers to obtain surveillance tapes. He also indicated in his report that Constable Formby (“Formby”) and Steve Bentley (“Bentley”) arrived on the scene and assisted in trying to locate any witnesses. After Uppal left the scene, he went to the Royal Columbian Hospital. He checked with the Head Nurse and contacted the plaintiff’s family. He arranged to have the plaintiff’s clothing seized for possible forensic evidence. He himself did not look at the video surveillance from the cameras. 134 He had a conversation with an employee of Cheers while at the scene, but his handwritten notes do not reflect that conversation. He had attended Cheers before, possibly for fights, but could not recall having seen ambulances there. 135 No one in DPD had identified Cheers to him as a “hot spot” of frequent illegal activity. He may have had a licensed premises check book- let with pre-printed LCP forms in his duty bag that evening. He did not utilize one that night and never had before. He did not find it necessary. 136 He was the lead investigator by virtue of being the first to attend. He agreed that of the later two officers to arrive, one was just a trainee, that is, Steve Bentley. Uppal was in charge and had the ability to direct the investigation. 137 He agreed with the following timeline on the basis of the time set out in the video: • the blow with the bar stool 1:39:31 • the off duty firefighter coming to the aid of the plaintiff 1:42:47 • Constable Uppal’s arrival 1:43:44 • second vehicle arrives 14:44:30 • ambulance arrives 1:52:16 • ambulance leaves 2:04 Burnett v. Moir A.F. Cullen J. 95

• third police vehicle arrives 2:04:55 and leaves at 2:06 • Constable Uppal leaves 2:07 138 Uppal agreed it was important to get as much information as possible in an investigation and one way to get that information was to talk to people involved. He agreed Greg Allan seemed agitated, uncooperative and intoxicated and he “wasn’t giving information he could have”. He agreed that at some point he talked to a bouncer at the pub. He agreed he advised the plaintiff’s family that the people involved had left the scene, based on what Greg Allan and the bouncer had said. He agreed everyone else said they had not seen anything. He stayed near the injured plaintiff at the scene. The only information he had about the assailants at that point was from Greg Allan and the bouncer. There were people standing around the front door. He remembered asking people what they saw, but how close he got when he was speaking to them he could not recall. 139 He agreed the employees of the pub might be a source of information. They were likely to be sober and might tend to be reliable. He did not talk to any other employee at Cheers apart from the bouncer. He explained his focus was on the plaintiff and ensuring that when EHS arrived, he could give them an indication of his condition or any changes. 140 He agreed he could probably have stayed and conducted further inquiries of employees and remaining patrons at the pub. He testified because the Cheers employees were known, it would be possible to go back and do follow-up interviews the following day or later on. He did not ask for a list of employees who were present at that time. He agreed he considered it might be possible to identify the assailant from the video tape but he did not ask to see the video tape at that time as the staff were busy at Cheers and he knew they could get it another time. 141 The information he had from Greg Allan was that the assailants were long gone. 142 He only talked to Formby about looking for witnesses, not to Bentley, who was the trainee. He believed the other officers told him they were not successful in obtaining further information. He agreed he believed the chance of altercations occurring at places where alcohol was served, was increased. He agreed with the following questions and answers from his examination for discovery: Q I’m assuming that - perhaps more than what I said there and I don’t want to mislead you. This paragraph alleges that if Cheers pub was a place of violence, that fact was known to Mr. Burnett before he went there. Now, my question is very 96 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

specific. Do you have any information or facts which would support Mr. Burnett knowing that this bar was a place of violence before he went there? A So let me just paraphrase that back to you so I understand it. You’re asking me if I know of any prior knowledge that Mr. Burnett would have had that this was a place of violence. Q Yes. A I don’t know of any specific information that would have lead me to believe that he would know that there was a specific - that this was a violent place. It would just - it would be my understanding that if you’re attending a nightclub where alcohol is served that any person in their right mind would know that this is a - being that alcohol is served and it’s a crowded establishment - that there could be altercations as happens many times in many different places where alcohol is served. ... Q Yeah. A I just think - just personally - is that if you’re going into a liquor establishment where liquor is being served, a night club - it doesn’t matter if it’s Cheers or clubs in Vancouver - fights break out all the time. And if you don’t want to go into a hostile situation like that or a volatile situation like that, then it’s best to avoid it. Q And is every establishment in your mind and in your opinion that serves liquor a hostile and violent situation? A Adding liquor to an establishment can create that environment. Doesn’t mean everyone is - every environment is, no. But situations can arise and incidents can happen. And from that perspective, like I said, it’s no different - Cheers would be - as far as I’m concerned, Cheers would be no different than any other liquor establishment. It just depends on totality of circumstances. Q Like the Four Seasons restaurant in the City of Vancouver? A No, not that. 143 Uppal was not under the impression that there were gangs involved in the assault. He thought there were two groups. He saw Greg Allan as the best potential witness. He was aware Allan’s girlfriend said she did not see anything. He wanted to contain the scene and protect the victim until the ambulance took him away. Burnett v. Moir A.F. Cullen J. 97

144 In this case, further investigation was required and he passed on his report to the Sergeant on the next shift. He believed this investigation would be a longer term one.

ii. Constable Formby 145 Formby has been an officer with the DPD since 2002. He was on duty overnight of December 25th and 26th, 2006 and on patrol with a trainee by the name of Bentley. 146 He was familiar with the NDI and Cheers. He had responded to calls there in the past involving intoxicated people, theft, fights, impaired drivers and other similar issues. He sometimes would patrol in the vicinity of Cheers and its parking lot without being called. From time to time he would conduct walk-through patrols of the Cheers pub. 147 Closing time at Cheers was 2:00 a.m. and he had previously attended at closing time to check and monitor departing patrons. In particular, police would attend on specific occasions, such as long weekends or on “FUBAR” nights or when the pub was featuring live bands. The police would patrol both inside and outside on occasions such as that; to establish a police presence and attempt to maintain order. 148 There were some occasions when the DPD would establish a mobile command post near Cheers on special event nights to show a police presence. He never issued any LPCs for Cheers. 149 He sometimes was called on to break up fights. The fights involved only minimal injuries. He had to assess whether the fights were consen- sual or not and he said it was hard to make that assessment in many cases. He never went inside to deal with fights. The staff had the ability to deal with things occurring inside the bar. 150 Formby identified a police report he authored relating to an incident at Cheers on March 4, 2006 involving a man arrested in the Cheers parking lot, intoxicated, belligerent and resisting arrest. He said that sort of thing would happen quite commonly and there could be arrests, depending on the level of intoxication and the behaviour of the subject. The arrests would be for being in a state of intoxication in a public place. 151 Another report dated December 2, 2006 noted a fight in the parking lot involving about ten Indo-Canadian males who dispersed when police arrived. 152 He was also referred to a call he responded to on December 26, 2006 at 1:09 a.m. in which a man and his wife claim to have been assaulted by 98 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

a bouncer at Cheers. It was determined by the investigation that there was no assault, but that the man and his wife were “escorted out of Cheers by the bouncer after getting caught in the middle of a physical altercation in the bar.” They had both been drinking. 153 Formby didn’t recall how long he dealt with those people in the parking lot that evening, but when the dispatch for the assault on the plaintiff came, he came from somewhere else and saw Uppal already on the scene and a gathering of people at the front entrance to Cheers. 154 He spoke to Greg Allan who was in a state of rage at the scene and not being helpful in providing information. He and Bentley tried to gather information from those in the area. He spoke with some people at the scene. He also spoke with the off duty firefighter, Steve Brewer and his friend Richard Mulenar and some people at the door, but it did not lead to anyone who had seen the actual assault. 155 He submitted a report that reflected his involvement. He summarized speaking with the off duty firefighter at the scene and his dealings with Greg Allan, both at the scene and subsequently at Royal Columbian Hos- pital. In his report, he summarized Allan’s statement to him at the hospital as follows: • he was walking thru the nightclub and a drink was spilled, someone hit him • a few punches were thrown, him and his buddy (Garrett) got into a fight with 5 or 6 guys • the 5 or 6 guys went outside and the bouncers threw them out to them • they (5 or 6 guys) hit him and Garrett with some chairs • that’s the last thing he really remembers and his friend (Gar- rett) was on the ground • it was a bunch of redneck guys, all white guys • one guy had a white shirt and jeans, one guy had a blue shirt and jeans and one guy had a red shirt and jeans • he bumped into the guy and the guy spilled his drink on him and then the guy hit him so he hit him back • Garrett was with him the whole night • he suffered a swollen left eye, cut under his right eye that needed 4 stitches and bunch of bruises and scrapes • his buddy (Garrett) and he both got hit with a chair outside the bar Burnett v. Moir A.F. Cullen J. 99

• the fat bouncer at the front door punched him in the head 156 He described Allan as reluctant to engage in the interview which lasted only a few minutes. 157 He had never before responded to an assault with a bar stool at Cheers. He had responded to fight calls at other drinking establishments, but Cheers is larger and holds many more patrons. 158 In cross-examination, he estimated he was involved in setting up a command post at Cheers about a half a dozen times at special events. He agreed that “FUBAR” was an acronym for “fucked up beyond all reason” and Cheers held such events usually the night before a holiday. The reason for a command post at Cheers was to show a visible police presence to avoid large crowds getting out of control. There were fights which broke out which Cheers staff were able to control within the bar and police would intervene in the parking lot if fights broke out or people were being too boisterous. 159 He agreed that there was a nearby Denny’s Restaurant which was affected by confrontations among Cheers patrons after closing and police recommended that Denny’s close for the period around the Cheers closing time, around 1:00 - 3:00 a.m. 160 He could not recall submitting an LPC which covered various violations of the Liquor Control and Licensing Act including rowdiness and fighting and over-service of alcohol. He agreed that such information would be of interest to the LCLB authorities. He agreed he may have been on scene at the time of the first assault call, longer than for the assault on the plaintiff. 161 Most of the assault calls he responded to at the NDI address were in relation to Cheers and not the other locations. Formby explained that any call or incident resulted in a report being logged onto the computer, and each report would be reviewed by a supervisor. 162 Despite being involved in investigations involving intoxicated and assaulted parties at or outside of Cheers, Formby did not submit LPCs. 163 He did not review video surveillance during his time at the scene of the assault on the plaintiff, but he knew it would be viewed the next day by other investigators. Uppal did not ask him to interview staff, but he approached the people standing at the door outside the Cheers pub to canvass with them about whether they saw the assault and he wasn’t sure whether they were patrons or staff or both. Uppal told them they needed to locate witnesses. He and Bentley spoke to the fireman, Mr. Brewer 100 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

and his friend, Mr. Mulenar, but neither of them had seen what happened. 164 He agreed no forensic assistance was called to the scene; no photo- graphs were taken and the scene was not taped or roped off to preserve it for further investigation. He agreed that no “licensed premises check form” was completed or submitted, at least by him, and he left the scene at 2:09 a.m. He agreed that Uppal did not direct him to stay behind to interview staff and he felt that in his experience, there would be opportunities in the ensuing days to get full statements from staff members. 165 He later went to the hospital and spoke with Greg Allan after he spoke to the duty sergeant.

iii. Constable Bentley 166 The evidence of Bentley was similar to that of Formby. He was a trainee at the time of the assault. He recounted the first attendance at Cheers in relation to the complaint by the couple, that they had been assaulted by being ejected from Cheers. He described the dealings he had with Greg Allan after attending to Cheers in response to the dispatch arising from the assault on the plaintiff. He described Allan as agitated and uncooperative. 167 He spoke with the friend of the off-duty fireman who was attending to Mr. Burnett who reported that he had not witnessed the assault. 168 He confirmed that he and Formby later attended Royal Columbian Hospital where they spoke again with Greg Allan and Allan gave more detail to them about the incident. He agreed no pictures were taken of the scene and no tape to keep it free of bystanders. He did not recall Uppal asking him to do anything in particular, although he understood that he and Formby were looking for witnesses while staying close to the victim until the ambulance arrived. 169 He did not talk to any of the security staff but agreed they would be the best potential source of information. Neither he nor Formby took possession of any stools. They did not ask who the head of security was at Cheers or try to find him. He agreed they could have stayed at the scene after the ambulance left to follow up with staff, but he had no recollection of being asked or directed to do so.

iv. Sergeant Ryan Hall 170 Sergeant Hall (“Hall”) joined the DPD in 1995. He spent some time on patrol and in investigation divisions of the department. He was pro- Burnett v. Moir A.F. Cullen J. 101

moted to the position of Sergeant in 2005 and has fulfilled both a super- visory and investigative role. He was familiar with Cheers along with various other pubs that he patrolled and checked for compliance. The DPD initiated a tactical management team to analyze information and to provide directions to patrol officers to prevent criminal activity. Cheers was a place that was identified from time to time as requiring checking on or a police presence at. 171 The police would generate a file any time there was an incident that they were called to involve themselves in. The file would be reviewed by a supervisor who would direct further investigation as necessary. 172 He identified several reports arising from incidents at Cheers that he had had some involvement with. He identified one case where there was an alleged assault, but where the suspect was never identified and no charges were laid. He identified another case involving the arrest of a person in a state of intoxication in a public place. 173 He testified Cheers was the largest drinking establishment in Delta with about 600 seats for patrons and it was the busiest. The police service calls included reports of assaults, potential impaired driving charges, damage to vehicles and other similar incidents to deal with. He did not, however, see any fights when he went through Cheers in walk-throughs. He was familiar with licensed premises checks which would be issued for non-compliance with the Liquor Control Act and Regulations. He testified that generally, misconduct outside the establishment would not result in licensed premise checks being prepared or issued. 174 He was on night shift starting at 6:00 p.m. on December 26, 2006 and was assigned to investigate the assault on Mr. Burnett. He went to Cheers that evening to obtain video surveillance tapes of the incident. After a discussion with George Holmes, the manager, he returned to the office, prepared an Information to Obtain, and obtained a search warrant on De- cember 27, 2006 which he used to seize the DVR to download all the video taken from the various surveillance cameras at Cheers. He then interviewed George Holmes, Sunny Jara and a person of interest that they indicated, named Kevin Williams. He also did a background check on Mr. Burnett and Greg Allan, the victims of the assault. 175 He contacted Allan by telephone. Mr. Allan expressed reluctance to speak to the police, but Hall eventually located and interviewed him between about 9:00 - 9:15 p.m. on December 27th, 2006. 102 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

176 In a report which he submitted, he summarized Allan’s interview as follows: On December 26th, 2006 from approximately 21:00 hours to 21:17 hours A/Sgt. Hall interviewed ALLEN a second time to clarify some of the details from the assault the night before. The interview was recorded without ALLEN’s knowledge as A./Sgt. Hall had the audio recorder on in his pocket. ALLEN stated in part: a) He was afraid to put himself and BURNETT in jeopardy by talking to the police; b) He did not know who “the guys” were from the night before or he would be dealing with things himself; c) He and “Garrett” (BURNETT) were walking through a group of “guys” and spilled some liquor on them, they swore at each other and a fight ensued; d) The bouncers walked he and BURNETT outside; e) He wanted back in and he pushed one of the bouncers and the bouncer hit him back; f) The police were there while the people who assaulted him were at the front door; g) He was enticing the other people while the police were there; h) He received a black eye and some stitches, possibly with an orbital fracture; i) When the bouncers grabbed them, the other “guys” began hit- ting them with the chairs; j) One of the guys was bald, 5'10, 190 pounds, white, clean shaven and wore a white collared shirt with jeans, ALLEN did not see any further details on the shirt; k) The bouncers threw six of the twelve “guys” out before he and BURNETT were thrown out; l) One of the guys may have been a “bigger” east Indian male with a brown collared shirt; m) ALLEN said he would not pick anyone out of the video if he had the opportunity, and indicated he did not want to cooperate with the investigation; n) The “guys” who were fighting with them kept yelling “Bring them outside?” to the bouncers as he and BURNETT were being escorted outside; o) Some of the clothes DPD seized the night before may have some of the suspects blood on them; Burnett v. Moir A.F. Cullen J. 103

p) Three of the suspects were “Laid out on the floor” or “Knocked the hell out?” and may have been hurt at some time; q) He said BURNETT may not cooperate with the investigation when he wakes up; r) ALLEN did not see what happened to BURNETT and did not see if he was hit with a stool, but thinks BURNETT may have been hit with a stool as he had been; s) ALLEN was hit with the stool outside after being thrown out. 177 He testified that his impression of Allan at the time was that he was not cooperative. 178 He had to get a warrant to obtain the hard drive of the computer that stored the video surveillance and he also downloaded the disk that had earlier been seized of portions of the video surveillance. That disk was downloaded onto the DPD computer hard drive and it was saved there. 179 He initially viewed Kevin Williams as a “person of interest” based on statements from George Holmes and Sunny Jara, but he ruled him out after interviewing him and viewing the video tapes. 180 On December 28, 2006, the police obtained a bar stool, said to be the one used in the assault from George Holmes. Hall sent it to forensic services for testing for blood samples and fingerprinting. 181 In cross-examination, he agreed he was familiar with entertainment district night clubs from his work with the anti-gang task force initiative. He was asked about other bars that had been closed or suspended. He was aware of actions taken in relation to other bars but had no direct involvement in those events. 182 There was no record kept of walk-throughs at Cheers, only of service calls in response to incidents or apparent incidents. Minor things would not be recorded if no action was called for. He never issued an LPC form. He agreed the LCLB authorities would want to know about infrac- tion of the Act and Regulations. He agreed there were various incidents which required police involvement at Cheers that may be of interest to the LCLB but which were not reported by LPC forms. He agreed that Greg Allan spoke to the police two times, but he regarded him as being evasive as he had to track him down and he appeared reluctant to talk. 104 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

v. Inspector Pike 183 Pike had been with the DPD since 1986. He had been in general patrol at various times and at the time of the assault, in 2006, he was the Sergeant in the Criminal Investigation Branch. He is now an Inspector. 184 His patrol experience familiarized him with the NDI and Cheers. Cheers required attention from police patrols around closing time on Fri- day and Saturday nights. He also conducted walk-throughs of Cheers. He described Cheers as catering to a younger crowd. He was aware of fights and altercations both inside and outside the bar. His experience with Cheers pre-dated 1999 while he was still on patrol duties. 185 He said there was a shooting at Cheers in 2003 or 2004 which he became involved in the investigation of. There was an arrest and charges arising from that incident. He also became involved in several of the bar watch programs with other police officers and liquor inspectors, where they would walk through some of the rowdier bars and establish a presence. He did one walk-through of Cheers in September or October of 2006 with a reporter for the local paper, the Delta Optimist and other officers and liquor inspectors. The reporter was there as a ride-along to cover and report on the initiative. In the same night they also visited bars in Langley, Surrey and Maple Ridge. Some of the bars appeared to have a gang presence, but he did not notice that at Cheers. He identified an article written about the bar watch program and the events of that evening in the Delta Optimist by the ride-along reporter. 186 He was also assigned to deal with special events by Inspector Charna (“Charna”) of the DPD. He was the field commander. In those situations, the police would establish a field command post and use video cameras as part of the process of monitoring the behaviour of the patrons at Cheers. There was some interaction with Cheers management in such circumstances as the management tended to be cooperative. 187 He was also a member of the department’s tactical management committee which he described as a group formed to look at the department’s operation and identify specific ongoing issues to deal with. He identified a number of reports detailing occurrences at Cheers and the NDI generally over the years. In particular, he referred to a report of a stabbing incident outside of Cheers in 2005 where there was no or insufficient evidence for charges to proceed. He also referred to minutes of a tactical management meeting on October 18, 2005 referring to information concerning a vehicle being searched for the presence of a gun, where none was found. That vehicle was in the Cheers parking lot. Burnett v. Moir A.F. Cullen J. 105

188 He became involved in the investigation of the assault upon the plaintiff. He said there was no advance warning of any intended assault at Cheers. 189 On the 26th he was the Staff Sergeant in charge of the criminal investigation branch of the department, but he was filling in for the Staff Ser- geant for patrol. He was informed of the events, he reviewed the file as it was submitted and he assessed the case as a serious one. He directed Hall to get a search warrant for the hard drive of the video camera or the computer storing the video from the video surveillance cameras. He was aware of the need to try and get a description of the suspect in the assault. 190 Because of the severity of the injuries to the plaintiff, the criminal investigation branch took on the file. In a case such as this, the expectations of the patrol officer on scene was initially to protect the life of the victim, to gather evidence, if possible, to identify the suspect and effect an arrest. There was an initial indication that the suspect or suspects were Caucasian, but it then changed to an indication that it was an Indo-Cana- dian. Based on his review of the file, he did not regard the witness Allan as being cooperative with the investigation. He noted that Allan’s background showed some association with a criminal gang, and he indicated that would change the way of conducting the investigation. As a result, he assigned the file to experienced investigators. He noted that there were other serious investigations going on as well at the time and it was necessary to prioritize the investigations. 191 One of the things done to attempt to get information was to solicit an anonymous tip through the Crimestoppers program by drafting a description of the event for publication and seeking assistance from members of the public who may have seen the event. No tips were received as a result of that process. 192 Pike identified the timeline of the investigation from the police report. His role was to coordinate the flow of information and direct the investigation. He noted that the investigators became aware of Jeremy Wocknitz as a potential interest, but had some difficulty in locating him. He was eventually interviewed in pre-trial custody on December 16, 2008. 193 He testified there was never enough evidence gathered to forward a report to Crown Counsel seeking charges against any particular individual. He did not feel the investigation was hampered by a failure to rope off the crime scene or talk to Cheers staff the evening of the assault. He 106 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

said the file was open still and it was not uncommon for files such as that one to remain open for some time. 194 In cross-examination he agreed patrol officers play an important role in the investigative process and he as the principal investigator would rely on information acquired and provided by the patrol officer, particularly where they were first responders. 195 When he assumed conduct of the investigation on December 27th, 2006, he had the occurrence report prepared by Uppal at the end of his shift. He did not have the attending officer’s notes and had only a “snip- pet” of video which he did not review at the time, but instead directed a search warrant to get the full surveillance camera videos from the hard drive and to have it mirrored, that is, replicated. He first viewed the video in early January. Pike was cross-examined about whether there was a camera in the upper bar not working and whether anyone checked on that. He was unable to say, but referred to the fact that the hard drive comprising the captured video surveillance was seized and mirrored. He could not say whether a camera in the upper bar was connected to the system or not. 196 He agreed Uppal would not have known Mr. Burnett’s condition or whether it was life threatening until after he left the scene. 197 He thought some of the security staff were identified and interviewed. He said there was a list of those working that day and they were interviewed. He agreed Hart was interviewed on October 29, 2009. Hart said he did not see who had hit the plaintiff. One of the staff members who was not working the night of the assault said in an interview on October 31, 2007 that he heard rumours that it was a staff member who hit the plaintiff over the head with a stool. 198 He agreed that Greg Allan was interviewed on the 26th and again on the 27th of December; George Holmes was interviewed on the 27th of December, 2006, Kevin Williams was interviewed on January 3, 2007; Danielle Tardiff, a security staff member, was interviewed on March 1, 2007; Kyla Johnson, a staff member, was interviewed on March 30, 2007; Mr. Burnett was interviewed on June 5, 2007. 199 He agreed Jeremy Wocknitz was not interviewed until nearly two years later and at that time identified the person by the name of Ricky Guy as the assailant with the bar stool. He noted that Wocknitz also said at that time that Ricky Guy was then hit and knocked out by one of the plaintiff’s friends. Burnett v. Moir A.F. Cullen J. 107

200 He agreed that if that information had come sooner, it would have been useful, but he noted that Wocknitz had left the employ of the bar and it took some time to track him down to interview him. 201 He agreed that Jeremy Wocknitz was not formally interviewed the night of the assault and no information was taken from him. He agreed that Jeremy Wocknitz definitely identified Ricky Guy but then changed his mind several days later and phoned the investigator to say he was not the person who hit Mr. Burnett with the stool. 202 The investigators concluded that Guy was not a viable suspect one or two months later, after some re-interviews, using photos from the surveillance. There was no other credible evidence that he was involved in the assault. 203 Pike agreed the article in the Delta Optimist which he had referred to, referenced closures and/or suspension at bars in jurisdictions other than Delta. He thought there was one suspension in Delta before the article was written. He agreed there was evidence of late service and underage service at Cheers the night the bar watch initiative took place and he said the question of sanction was for the liquor inspector who was present at the time.

vi. Constable Al West 204 West was the principal investigator assigned by Pike. He has been with the DPD since 2001. He served his first four years in patrol, then was with the drug section for a period and in the last three to four years has been a major crime investigator. 205 While on patrol, he was aware of Cheers and would drive through the parking lot on the busier nights. He also did periodic walk-throughs of the bar to check for underage drinking and other Liquor Act infractions. The idea behind that was to establish a police presence to enforce compliance. 206 During that period, he never saw anything get out of control. He had not previously been involved in an investigation featuring Cheers. He became involved in the case in January 2007. He reviewed the video, the patrol reports and any other reports concerning the assault. He prepared a synopsis and a time line for the investigation which he added to as the investigation evolved and developed. 108 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

207 The synopsis he prepared reads as follows: On December 26, 2006 at approximately 0140 hours an altercation took place in the upstairs bar area of the Cheers Nightclub. The altercation involved two large groups of males. Several Cheers doormen attended the fight scene and corralled the two groups of approximately 30 patrons outside of an emergency exit. Once outside of the emergency exit Garrett BURNETT (‘BURNETT’) was hit over the head by an unknown person with a barstool which had been brought outside of the nightclub. BURNETT was knocked unconscious after being struck by the barstool. Greg ALLEN (‘ALLEN’) who accompanied BURNETT in the nightclub was also injured in the altercation. DPD and EHS were dispatched to the scene after 911 calls were received by EHS. BURNETT was transported to Royal Columbian Hospital (‘RCH’) by EHS, and then moved to Vancouver General Hospital (‘VGH’) to receive additional treatment for his closed head injury. ALLEN was transported to Surrey Memorial Hospital (‘SMH’) where he was treated for facial injuries. On December 27, 2006 a search warrant was executed and a digital video recorder was seized. A review of the seized video recorder showed a large group of approximately 30 people exit the club. Al- though the video is of poor quality an unknown male can be seen lifting a dark object (believed to be bar stool) above his head and swinging it downwards. BURNETT is then observed lying motionless. 208 Under the heading “overview of investigation: he wrote as follows: December 26, 2006 a) At approximately 0140 hours an altercation took place between two large groups of customers at the Cheers Nightclub. b) At 0146 hours DPD dispatch were advised by EHS via ECOMM of an assault which had occurred at the Cheers Nightclub. c) At 0148 hours Cst Paul UPPAL (Echo 15) was dispatched to a fight at Cheers in which two males were knocked unconscious. Unit Echo 14 was also dispatched to the call but was advised to stand down by Echo 12 (Cst J. FORNBY and Cst BENTLEY) as they were closer to scene. Patrol Units Echo 11 and Echo 14 were confirmed by dispatch as standing down from the call. Cst J. FORNBY and Cst. BENTLEY arrived at Cheers at approximately 0148 hours. Burnett v. Moir A.F. Cullen J. 109

d) At 0149 hours Cst UPPAL requested DPD dispatch EHS Code 3. e) At 0150 hours Cst UPPAL advised dispatch Subject of Com- plaint “long gone”. f) At 0153 hours Cst UPPAL asked dispatch for an ETA of EHS. g) At 0157 hours EHS arrived at Cheers. h) At 0209 hours EHS transported BURNETT to Royal Colum- bian Hospital arriving at 0224 hours. i) Greg ALLEN (who stated he was BURNETT’S friend) was injured in the altercation and transported to SMH by a second EHS Crew who attended the scene. ALLEN was hostile and uncooperative at the scene. j) Greg ALLEN’S girlfriend Sharon CATANGHAL was standing near ALLEN and BURNETT when police arrived on scene. k) At 0454 hours Cst FORNBY interviewed ALLEN at SMH. Cst BENTLEY seized ALLEN’S white t-shirt, runners and jeans for possible suspect DNA. l) BURNETT’S jeans, black t-shirt, under wear, socks and belt were seized by police. m) At 1330 hours Cst EWING attended the Cheers Nightclub and obtained a Video CD (Video contained CCTV of assault) from Manager George HOLMES. The video was submitted to DPD FISS for enhancement. n) At 2100 hours A/Sgt HALL conducted an interview of AL- LEN at his girlfriend’s (Sharon CATANGHAL’S) residence (CATANGHAL had accompanied ALLEN at Cheers the night of the assault). 209 He then summarized the seizure of the “digital recorder” (which) contained video captured on eight cameras on December 27th at 10:51 p.m. and summarized a review of those recordings. He then listed the date of each witness’ interview and summarized the witness’ evidence. The interviews that were conducted were as follows: • George Holmes, manager of Cheers, December 27, 2006 at 23:23 hours; • Sunny Jara, manager of Cheers, January 1, 2007; • Kevin Williams, witness, January 3, 2007; • Tyler Wocknitz, doorman, February 1, 2007; 110 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

• Baljit Mann, taxi driver, February 1, 2007; • Rob Fai, bartender, February 2, 2007; • Steve Norton, doorman, February 20, 2007; • Matt Steinsvik, doorman, March 1, 2007; • Danielle Tardiff, doorman, March 1, 2007; • Matt McGee, doorman, March 8, 2007; • Adam Rosler, doorman, May 30, 2007; • Kayla Johnson, Cheers employee, May 30, 2007; • Garrett Burnett, complainant, June 5, 2007; • Jared Green, doorman, October 31, 2007; • Jeremy Wocknitz, doorman, December 16, 2008 & December 18, 2008. 210 West also noted that the bar stool said to have been involved in the assault was seized on December 28, 2006 at 9:40 p.m. 211 In the course of the investigation after receiving Jeremy Wocknitz’s information concerning Ricky Guy, West identified him by the name Sengpeth Thammavong. He detailed his attempts to obtain a statement from Thammavong who advised through his counsel that he had nothing to do with the assault at Cheers and was not willing to provide a statement. 212 At the conclusion of his report, West identified what he considered to be discrepancies in the description of the assailant as follows: After interviewing numerous witnesses, the following information was obtained describing a possible suspect in the assault; a) It was a bunch of redneck guys all white guys. Caucasian, 5'10" 190 llbs [sic], clean shaven, white shirt and jeans. (Greg ALLEN) b) East Indian male approximately 5'11" with a skinny build. (Tyler WOCKNITZ) c) A “big guy” grabbed a barstool and hit BURNETT. (George HOLMES). d) East Indian male wearing hat and Nike threw a punch which knocked BURNETT to the ground. e) Heard a rumor [sic] a doorman may have hit BURNETT with a barstool. (Jared GREEN). f) BURNETT was hit with a chair by an Asian male (Jeremy WOCKNITZ). Burnett v. Moir A.F. Cullen J. 111

g) Heard a rumor [sic] it was people from White Rock that were involved in the altercation (Matt MCGEE). 213 He concluded as follows: To date investigators have been unable to obtain sufficient evidence to positively identify a possible suspect. Although Sengpeth Tham- mavong was identified as a possible suspect by one witness, he has refused to provide a statement and at this time, there are insufficient grounds to make an arrest. 214 Delta Police have not received any tips as a result of the media cover- age and Crimestoppers tips. None of the approximately 30 persons in the altercation or any of the nightclub patrons in the club at the time of the incident have provided any information which would assist the investigation. In the absence of receiving information which would insist investigators, the only investigative avenue left for investigators to obtain evidence is to target Sengpeth Thammavong to ascertain what involvement, if any, he has had in this investigation. West also testified about developing the Crimestoppers tip in furtherance of trying to obtain information from the public about the events of the evening. He also testified about a YouTube video which purported to depict the confrontation inside Cheers, but he could not locate the person who created the video to ver- ify it. 215 In cross-examination he agreed he was familiar with the concept of intelligence-led policing and the idea that preventing crime lessens the need to respond. He agreed that police patrols are effective in preventing offending, but when patrol officers are responding to service calls, they are serving in a preventative role. He agreed Uppal, who was the first to respond to this incident, was in charge of the investigation initially. Gen- erally a crime scene will be cordoned off to allow the collection of evidence, but the importance of it depends on the circumstances of the crime. In this case, it doesn’t appear anyone took blood samples or foot- prints from the crime scene, there were no photos of the scene and no measurements taken. He wasn’t aware of Uppal specifying anyone for Fornsby or Bentley to speak to. He agreed it could be useful to get information immediately after an event. In this case, some of the Cheers staff were not interviewed until months later and Jeremy Wocknitz was not interviewed until December 16, 2008. West identified inconsistent descriptions of the assailant as being one of the problems with the case. He agreed the best identification was from Jeremy Wocknitz, who purported to name and know the assailant. He said the reason for the delay in interviewing Wocknitz was that the police had no address for him and their 112 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

attempts to locate him failed. They entered his name on the police computer information system known as CPIC. He did not know why there was no interview of him before he left Cheers in February 2007. He agreed it was possible that if Wocknitz had provided his evidence sooner and the identified assailant was checked, it might have produced evidence of injury consistent with him having been in a fight. 216 West said other people were still describing different suspects and that would not change their descriptions and West “could not speak to” what Jeremy Wocknitz would have said at or near the time of the assault. 217 West said what he used to review the events was a mirrored copy of the hard drive. He said the hard drive was never destroyed, only the original of a CD burnt from a portion of the video captured on the hard drive, but the CD had already been saved to the DPD computer network, so nothing was lost. His recollection was that although there was a camera in the upper bar area, it was not working, but he could not recall where he got that information. 218 In a letter dated December 4, 2009, counsel for the Delta Defendants sent responses to requests for additional information at the discoveries of Uppal, Pike and Cessford. 219 Included in the letter, was the following question and response: At approximately 1:30 p.m. on December 26, 2006 Constable Sandberg and Constable Ewing attended at the liquor store at the North Delta Inn and met with George Holmes. AT that time Mr. Holmes showed them video surveillance footage on the computer in the office and burned a computer disk showing some of the footage from an exterior surveillance camera. Both Constable Ewing and Constable Sandberg saw at that time the video footage that was burned to the computer disk. The computer disk was later provided to Acting Sergeant Ryan Hall. Acting Sergeant Hall viewed the video on the computer disk and also saved it to the computer system of the Delta Police Department. A copy of this video saved to the Delta Police computer system has previously been delivered to counsel for all parties under cover of a letter dated November 30, 2009. The computer disk obtained from George Holmes on December 26, 2006 and discussed herein is the same as the computer disk that was later inadvertently destroyed.

vii. Inspector Charna 220 Charna started with the DPD in 1986. He worked through the ranks to his present position as an inspector. Along the way, he had responsibility Burnett v. Moir A.F. Cullen J. 113

for the patrol division and he became familiar with the Cheers pub. He was also involved as a member of the tactical management team. He testified it meets on a weekly basis to go over issues identified relating to crime in the community, such as theft from autos, breakings and entering and various different kinds of crime. 221 The NDI used to be known as the Scottsdale Inn. His dealings with Cheers involved ensuring that there were both foot and car patrols in the area to deal with patrons and to maintain a police presence. He himself had done walk-throughs of Cheers and he did not register any concern regarding the staff’s internal control of its patrons. There were fights in the parking lot and he was in communication with the management of Cheers over issues such as liquor consumption in the parking lot, and intoxicated patrons outside causing disturbances by fighting and through other means. He regarded management generally as very cooperative over issues of concern to the police. He identified one occasion involving a large fight at the All Stars bar at the NDI which caused him to order it closed for the remainder of the night. 222 He referenced a meeting with himself, Scott Moir, one of the owners of the pub, George Holmes, the manager, and Brad Parker, the former Superintendant at DPD. 223 That meeting centered on a complaint by Cheers management that he, Charna, was being too hard on them. Their position was that they were doing their best to control activities in the parking lot of Cheers and would even have staff members doing patrols. Charna said he did not change his attitude about continually bringing issues that arose in the parking lot to management’s attention and pressuring them to maintain control of their patrons. 224 He testified he would from time to time arrange to have a mobile command post set up at or near Cheers to monitor when Cheers was having a special night such as a live band or some other event. 225 In relation to issues about gangsters going to bars, there was a police initiative to check bars in the lower mainland by observing identifications of potential patrons at the front door and doing computer checks for gang associates. He viewed that as providing a deterrent to gang members from attending certain bars. 226 In the fall of 2006 there was an incident involving a Cheers patron who was injured and taken to the hospital by ambulance. The name of the victim was Anselmo. A complaint was made by his father because he was not interviewed by the police notwithstanding the fact that he had 114 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

been injured. Charna was delegated to deal with that issue by Cessford of the DPD. He dealt with the issue to the evident satisfaction of the victim’s father and he put a report in which was communicated to municipal council who had received the original complaint. Charna was aware that fights occurred inside Cheers and they were usually handled by the staff, but the police would respond when and if called. He had no reports that the staff was unable to control what went on inside the bar as a general rule. 227 He testified the majority of people involved in such cases would disperse when the police came, but they would intervene when necessary and remove the would-be combatants from the area. He had shut down other bars for the night because of fights that occurred inside. 228 There was a Denny’s Restaurant open 24 hours, located not far from the Cheers pub. There were problems that developed in the Denny’s Res- taurant around the time the Cheers pub closed, as patrons would go to Denny’s and create difficulties. Charna spoke to the management of Denny’s who agreed to close their restaurant between 1:00 a.m. and 3:00 a.m., around the time of the bar closing. 229 There were some noise and damage complaints from a neighbourhood townhouse development. At a meeting held with the police, the police agreed to increase patrols in order to prevent those sorts of problems from occurring from intoxicated patrons of Cheers. 230 Charna was aware of several stabbing incidents at Cheers, but he was not himself involved in the response or the ensuing investigation. In cross-examination he agreed he was not involved in the investigation in the assault of the plaintiff. 231 He agreed that evidence of intoxication or drinking in the Cheers parking lot might provide evidence of a liquor violation inside the Cheers pub. He agreed that the stats between January 1, 1998 and March 1, 2007 obtained from the DPD regarding service calls to Cheers would be accurate. Cheers was open three days a week generally, except on long weekends. He agreed that there were 231 assaults over that time period, some disturbances which involved fighting and also instances of uttering threats. 232 There were two stabbing incidents at Cheers within a little more than a month - one at the end of August 2005 and the other at the end of September 2005. That was an issue for the tactical management team, but he could not say what was done concerning that. He agreed that there was an entry in the tactical minutes of September 28, 2006 of two males Burnett v. Moir A.F. Cullen J. 115

checked at Cheers said to be armed and dangerous and as well of a fight involving ten or more Indo-Canadians with the use of pepper spray deployed by someone. He couldn’t say whether those incidents were subjected to any follow-up investigation. 233 He used to issue lots of LPCs but had not done so over the last ten years or so. 234 On April 16, 2006 the tactical management committee minutes reported two arrests for causing a disturbance and an aggravated assault. He could not say if there was any follow-up with Cheers arising out of that reported incident. He would have brought those issues to the attention of the Cheers management. 235 He estimated that perhaps 30 of the 600 Cheers patrons constituted a criminal element. He did not agree that the main purpose of the under- cover or foot patrols of officers in plain clothes was to gather information regarding criminal activities. The purpose was to go in to monitor liquor- type infractions, to check identifications to see if any warrants were outstanding or if there were any gang members at the bar. He said it was a way of staying on top of gang members going to liquor establishments. He agreed that the DPD did not always report infractions to the LCLB. 236 He denied that he regarded Cheers as a “fishing hole” to catch bad guys. He did not agree with the suggestion that Cheers was allowed to operate because it gave police a place to conduct intelligence investigations. He testified that the DPD’s focus was in resolving issues before they became a problem. He felt if the number of people behaving crimi- nally was relatively small in comparison with the total number at the bar, shutting down the whole bar is not justified. He was aware that the LCLB could suspend operations of a bar as a result of police complaints and he was aware that council could shut down the bar by revoking permits. He himself did not report Cheers to council. 237 He agreed the incident arising out of the complaint to council in 2006 got some follow-up and he wrote a memo dated November 8, 2006. The matter was discussed at a council meeting and staff was asked to consider the possible success of a show cause hearing. 238 Charna could not say if that was the only time a show cause hearing was considered. He was aware that reports could be made to the LCLB by LPC forms. He was asked about the number of incidents relating to Cheers in 2005 and 2006 and said if those incidents had been properly collated and brought to his attention, he would have done something about it. He responded that he thought police were doing what should be 116 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

done by foot and car patrols, by attending around closing time, by engaging and interacting with the patrons and staff, by setting up mobile command posts on special event evenings and by sending plain clothes officers to walk through the pub. He acknowledged there was the option of pursuing suspensions through the LCLB. He agreed people should be able to feel safe, but at liquor establishments, things can be unpredictable and no one is forced to go. He agreed that some level of fighting at Cheers was predictable. 239 He testified Denny’s was different from Cheers - there was no security staff and Cheers had more security staff than other establishments. 240 The suspensions he spoke about at other bars were just temporary, he noted that police can only suspend a bar license for up to 24 hours and can advise the LCLB which has the authority to suspend for longer periods.

viii. Chief Constable Jim Cessford 241 Cessford has been chief of DPD since February of 1995 following a 25 year career with the Edmonton Police Service. He has had extensive experience in various areas of policing and has been involved in a wide variety of organizations, programs and initiatives concerned with policing duties. 242 He explained that the establishment of the police department comes from the mayor and council, which is required to create a police service, and a police board provides the governance. Governance includes allocating the budget and hiring the chief of police. The police board consists of the mayor and five community representatives. It meets monthly. The DPD consists of four patrol platoons comprised of 76 officers, operational support services comprised of 40 officers, and the criminal investigation branch, comprised of 25 officers. The executive of the DPD consists of 6 officers and the administration consists of 13. There are also 65 civilian staff members. The DPD management team consists of the chief, a deputy chief, the superintendant in charge of operations and the superintendant in charge of administration. 243 There is a regular morning meeting involving the management team - the operations Staff Sergeant and representatives from each department. There are reports on occurrences of the last 24 hours and assignments are created where necessary from the morning meeting. There is also a tactical management team which analyzes information concerning service calls and reports to concentrate resources on. Burnett v. Moir A.F. Cullen J. 117

244 Cessford first became aware of Cheers in 1995. He went on ride- alongs with his patrol officers and patrolled the various drinking establishments. Cheers was one of them. He was aware that such places can be problematic and he was aware that generally, the service call volume was quite high in relation to drinking establishments concerning liquor act violations, assaults, and assorted general calls. 245 From time to time Cheers would come up in discussions at meetings or less formally. By 2006 his assessment was that Cheers was typical of liquor establishments. In Edmonton, in the inner city, they could be very violent with stabbings, robberies, etc. Delta’s establishments were calmer than those that Cessford experienced in Edmonton. He testified that he did talk to LCLB inspectors and got a sense of how Cheers compared with other establishments. 246 He met with the owner and management of Cheers and talked to police constables and got the sense overall that the management and staff at Cheers were cooperative in most areas. 247 Cessford had some recollection of the agreement Cheers management had entered into with the Municipality of Delta in July 2002. At the time, there was concern about noise and the conduct of patrons. Cheers had security staff and they supported police walk-throughs without any kind of obstruction. He knew Cheers had a policy of baring those who had caused trouble before and they had also installed security cameras and lighting as called for in the agreement. 248 He noted that there had been a hot dog stand in the parking lot which attracted problems because of the intoxicated patrons and fights broke out, but they got rid of it to abate the problem - even though it was a money maker - at the request of the police. 249 He was shown the statistics reflecting service calls to the address which had been compiled over the years. He was not aware of those statistics at the time of the assault upon Mr. Burnett. 250 He did not get any feedback from officers that Cheers was hard to police or expressing concerns about the management or security staff. He felt the department took adequate steps to monitor and police the drinking establishments in the jurisdiction by regular patrols, establishing a high visibility including walk-throughs, establishing a presence at closing time and establishing a command post from time to time to check patrons or to take preventative steps on special event nights. 118 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

251 He testified that all calls for service would be responded to and that research shows more police uncover more crime and encounter more incidents when they are regularly on patrol in particular areas. 252 He was aware that LPCs were available to complete if the liquor establishment is not properly managed. He said the DPD did some operations with the LCLB and they had a good relationship and would from time to time come along with police to inspect drinking establishments. He was aware that there were some noise complaints concerning Cheers and he was aware that Cheers had worked with the police to keep their doors closed to abate the noise. He was also aware of the complaint concerning Mr. Anselmo whose son was the subject of an assault, but was not interviewed by the police. He arranged to have Charna review the file and meet with the complainant in October 2006. 253 He also met with the mayor and city council concerning that matter. There was a discussion about that complaint and also about the complaint history, which Cessford had asked be produced, involving 392 complaints or calls in 22 months. The number encompassed the “whole foot print” at the address including the parking lot. Cessford said he thought the numbers were not out of line with other establishments as they did some comparisons and did not believe the numbers were “out of the ordinary”. 254 The mayor and council asked their staff to report on the viability of a show cause hearing in respect of Cheers, arising out of the service calls. The municipality’s legal staff worked with the DPD on the report, but it came out around the time Cheers was being sold to new owners and a determination was made to work with the new ownership and the issue of a show cause hearing was not pursued at that time. 255 Cessford became aware of the assault on the plaintiff very soon after the incident, but had no involvement with the investigation other than seeking ongoing updates. He was not aware of any incidents similar to that happening at Cheers. 256 In cross-examination, he agreed Cheers was an establishment that required police attention. He was a proponent of intelligence-led policing to prevent crime and disorder. He agreed that that is a process where information is gathered and used to identify and deal with crime areas in a preventative way. 257 He was asked about the suspension of a club called Brandi’s in Van- couver, but said he was not familiar with that. Burnett v. Moir A.F. Cullen J. 119

258 He said information on crime areas in Delta is collected and stored on computers and is subject to analysis. He was not aware of the 2,410 services calls to the NDI between 1998 and 2007, but was informed of the 392 service calls for the past 22 months in December 2006. He said it seemed like a high number, but it involved the whole of the complex, not specifically Cheers. The numbers were broken down and given to council in November 2006. DPD did issue crime reports, but they did not include statistics about crimes against the person, except robbery. The 2008 community report did not produce statistics relating to assaults, although it could have. He agreed there were stats available for the nature and number of service calls to Cheers. He also agreed that there were two stabbings within approximately a month at or outside Cheers in 2005. One of the stabbings occurred outside the bar after it had closed, the other inside the bar. He agreed there were other incidents including fights and assaults and some special events generated calls for medical help because of over-drinking, although he wasn’t personally aware of those incidents. He himself did not engage with Cheers staff over the issue of “FUBAR” nights or cheap drink nights, but he was aware other members of his department had. 259 He was directed to various police reports detailing cases of violent encounters including assaults with weapons or causing injuries and occurrences at or outside of Cheers’ bar throughout 2005 and 2006. He said he had no specific knowledge of those cases. 260 He agreed such incidents were “on occasion” fairly regular. People would go and become involved in drinking and would occasionally get involved in situations which could result in serious bodily injury. He said the department was aware of goings on at Cheers and was “monitoring the situation”. Issues at Cheers were brought up at tactical management meetings from time to time and what was done arising from those issues was to have regular highly visible patrols, meetings with the staff, owner and management of Cheers, working with the LCLB, and bar initiatives, all to establish a good police presence. 261 There were no notes or records of the meeting with the liquor board representatives. Cessford made no directions to patrols to fill out LPCs. He agreed that Cheers was a hot spot in that it had lots of calls for service. 262 He was referred to an LPC issued May 5, 2006 for allowing disorderly/riotous conduct at Cheers. It made reference to 60 - 70 people outside the bar at the rear exit involving some physical altercation. He 120 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

was not aware of that particular incident. He was aware officers had the authority to close the establishment for up to 24 hours and the LCLB had a broad range of penalties for enforcement actions. He was aware that Cheers’ business licence could be suspended or revoked by council and that’s what was being contemplated as a result of the Anselmo complaint. 263 He was aware of an initiative in 2009 involving a violence suppres- sion team which would institute bar or restaurant watches to deter known gang members. The initiative would involve identified gang members being asked to leave by police at the behest of management. It would be done through the application of the trespass law. Delta took the program, which initiated in Vancouver, and used it there. Cheers was not, however, a signatory to the initiative, but the team did attend Cheers to seek its participation. Cessford did not recall if information concerning the number of service calls to Cheers ever had been requested before No- vember 2006. 264 Cessford was referred to an internal LCLB memo dated November 27, 1995 referring to a meeting that took place November 22, 1995 between representatives of the DPD and the LCLB. He did not recall the meeting referenced in that memo. He was referred to a later letter dated March 5, 1996 from the regional manager of the LCLB to himself, referring to that meeting, noting that no liquor LPC forms had been received from the DPD for 3 years and requesting an updated report on the issue of increased monitoring of the Delta Scottsdale Inn. Cessford acknowledged that he would have received the letter. 265 He agreed he was probably aware of the drinking and fighting outside of Cheers referred to in the letter. He had no record of a response to the letter and was not aware of the Attorney General’s indication of increased monitoring. He agreed LCLB inspectors “were willing to work closely with the DPD to monitor compliance with all licensed establishments in the Delta Municipality including the Scottsdale Inn Hotel.” 266 The DPD believed that cheap drink nights were a problem at Cheers and it had recommended to them that they not hold such events. There were a number of people from the police force communicating the mes- sage. He is not certain whether the cheap drink nights stopped as a result of police recommendations or not. 267 He agreed Cheers was a problem in a number of ways requiring increased attention from the police. There were issues of over-service; of Burnett v. Moir A.F. Cullen J. 121

under-age service; the cheap drink nights; the “FUBAR” nights and other special events. 268 Those problems continued through to 2006. He agreed that he had some discussions with the legal counsel for the municipality in Novem- ber and December of 2006 concerning Cheers, arising out of the An- selmo incident and council’s request for an opinion on the viability of a show cause hearing. He was referred to some hand-written notes prepared by a lawyer with the municipality’s legal department. They were dated December 18, 2006, referred to Cheers and the Anselmo letter, and referred to the 392 service calls which included a wide variety of complaints. In the note, there was a reference to murders. Cessford testified however that there were no murders at Cheers. 269 He was aware in December 2006 that previously the Hells Angels had made appearances at Cheers. 270 It was ultimately decided that the show cause would not proceed because of the new ownership. 271 He was referred to a warning letter from Kane Scott to Cheers dated January 13, 2000 relating to an incident that had occurred in October of 1999. The letter read as follows: WARNING LETTER This letter is further to a Licenced [sic] Premise Check issued by Cst. [ ] of the Delta Police Department, concerning disorderly conduct of patrons within your licensed establishment on October 8, 1999. Delta Police attended at your premise about 2:10 a.m., to investigate a complaint of an assault that had just occurred. On arrival they learned that your security personnel had ejected about 10 persons from the premise including two victims of the assault incident. Your security personnel had returned the victims to your premise for their safety after having clarified some details of the incident. The suspects in this incident had left the scene prior to arrival, however, the two victims were transported to Surrey Memorial Hospital for treatment of head and facial injuries. I have discussed this incident with George Holmes and Scott Moir. Although your premises is generally well controlled both in the licenced [sic] areas and the parking lot areas surrounding the hotel incidents of altercations involving several persons and injury to persons cannot be ignored. 122 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

Section 36(2)(a) of the Liquor Control and Licensing Act states: A person holding a licence or the person’s employee must not authorize or permit in the licensed establishment (a) gambling, drunkenness or violent, quarrelsome, riotous or disorderly conduct, Licensees and their employees are responsible for ensuring that adequate patron behaviour and order is maintained within the licensed establishment. Furthermore, public safety, health and well-being must not be jeopardized by the service and consumption of alcoholic beverages. The purpose of this letter is to serve as a warning that should this office continue to receive reports of violations, you could be requested to attend an enforcement hearing. A copy of the Licenced [sic] Premise Check forwarded to our offices is attached for your reference and attention. Should you have any questions concerning the contents of this letter, please do not hesitate to contact the undersigned. 272 The warning letter was based on an LPC issued by a DPD member. Cessford agreed that in that case, the issuance of the LPC had a good result. He was also referred to an LPC issued with respect to an assault with a weapon at Cheers which occurred on September 9, 2001. There was communication between the DPD and Kane Scott concerning the incident and ultimately no further action was taken against the establishment as it was determined the situation was properly handled by security staff who restrained and removed the combatants and called the police. He agreed that sometimes the DPD is reactive by sending officers to respond to calls and at other times proactive by sending bulletins re: hot spots to enable citizens to avoid situations. That, he explained, happens mostly in theft from autos in certain areas of Delta. 273 Initiatives like Bar Watch and Restaurant Watch to get rid of “bad guys” and to avoid danger in public places are other examples of proactive policing. 274 As far as the Hells Angels are concerned, he had been informed that they had been at Cheers, but infrequently. He did not recall having a conversation with the lawyer for the Municipality along those lines. The DPD would make sure they were not intimidating or setting up business at Cheers. Burnett v. Moir A.F. Cullen J. 123

ix. Sergeant Walter Argent 275 Sergeant Argent (“Argent”) has been with the Vancouver Police De- partment (“VPD”) for 31 years. He is the Sergeant for the community police office in district #1, which includes the downtown core. He has patrolled and worked in the downtown entertainment district for many years and is familiar with the Roxy nightclub located on Granville Street in Vancouver. 276 He was referred to a document summarizing calls for service to the Roxy nightclub address between January 1, 2002 and December 31, 2006. The calls totalled 1,316. The Roxy has a seating capacity of 240 and is open 7 nights a week, with the busiest nights being Friday, Satur- day and holiday nights. 60% - 70% of the calls were on those nights. Argent’s office has responsibility for other clubs as well; some of which are worse for the number of service calls. The service calls included complaints of violent assaults. 277 There were many fights inside and outside of the Roxy. The VPD expected the club to handle the inside altercations, unless it was serious enough to call the police in. Ambulances would be called regularly on Friday and Saturday nights to the area of the Roxy and other clubs. If there is a major problem, the police can shut down the bar for up to 24 hours, but he had only done that two times. The police used LPC forms only if something arises in the club, such as over-service, improper service and that sort of thing. LPCs would not be sent to the LCLB in response to fights or violence. The Roxy has 8 - 11 doormen who commu- nicate by radios and headphones. In his experience, it is not possible to eliminate fighting from bars; at best, the authorities can only try and control its nature and extent. The police changed their approach to the entertainment district after 2006. Before then they took a strict enforcement approach and wrote tickets for all infractions, but subsequently changed to what Argent described as a “meet and greet” approach. It was a more flexible, less confrontational approach which he said resulted in a 32% reduction in assaults since that new approach had been adopted. 278 In cross-examination, he said the Roxy is a Bar Watch member. It joined the program and adopts the policy. His view is that bars that don’t join the program don’t want to lose the financial benefits that gang members can bring. He agreed that failing to join might promote gang attendance and he could not think of any good reason not to join. 279 There are over 5,000 liquor establishment seats on Granville Street between Robson Street and Pacific Street. Lots of things occur in the 124 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

streets. Some fights in front of the Roxy may not have anything to do with the Roxy. On hockey nights, more people are out in the street. Drugs are also available, which is another source of bad behaviour, but Argent’s view is that the majority of the problems are caused by alcohol. He said that each bar has different clientele; the Roxy is “relatively high end”. 280 The meet and greet policy would replace the arrest of drunken scuf- flers with sending them home in a cab and getting them off the mall. He testified that in his experience, LPC forms are seldom used. He put in only 3 in 2010. He said in 2002 - 2006 more were used, for liquor violations, but not for incidents on the sidewalks and in front of the various establishments. He said suspensions are used very rarely and he is only aware of it being used two times since 1999. 281 He testified that VPD have a liaison officer who works closely with the LCLB. That officer’s sole duty is to report infractions to the LCLB. That liaison came into being in 2000 and that’s how the main source of information from the police department to the LCLB was channelled, not through the medium of the LPC forms. He assumes that the reports are done in writing and it provides the inspectors with the basis to decide if some enforcement hearing is necessary. He said the object is not to put the bar out of business, but suspensions can cost money and send messages. 282 He said police will complain about cheap drink nights because they can cause problems, but police have no power to prevent such promotions. Argent agreed police “could try” to go to the LCLB with complaints arising from cheap drink nights with a view to provoking a warning or a suspension. It would take “a fair amount of planning and enforcement”. 283 He agreed allowing gang members into bars can lead to violence and fights. He was aware on two occasions of reports going to city hall to raise the issue of suspending or cancelling a business licence. That is another means of enforcement. 284 The VPD also issue warnings to the public on its website about “bad areas of crime”. The warnings concerning night clubs involved date rape drugs and Bar Watch warnings. There was only one Bar Watch warning issued that he could recall. He was aware of Brandi’s nightclub. He said there was a concern about gang members being involved in the ownership and at one point, its liquor licence was suspended, although he was not involved in that. Generally, dispatches are run according to the ad- Burnett v. Moir A.F. Cullen J. 125

dress from which they come and the police try and be accurate. Other clubs will have their own call history, all of which are similar to that of the Roxy. 285 He testified that council pulled the licence of one cafe which had drugs being sold out of it. 286 The VPD website does not have warnings about assaults or fights in the bar area.

x. Police Occurrence Reports Relating to Cheers 2005/06 287 Summaries of all police services calls and those police occurrence reports involving assaults or other forms of violent behaviour relating to 11920 - 70th Avenue in Delta - the NDI complex - for 2005 and 2006 were introduced as exhibits in the defendant’s case. The police reports were subject to the parties’ documents agreement, which reads in part as follows: Police reports of previous incidents will be admissible only as proof of what the police were told about the incident and what they recorded. 288 According to the 2005 summaries, 26 of the service calls related to some form of alleged assault, threatening or obstruction and about 16 to causing a disturbance. According to the 2006 summaries, there were 31 calls related to various alleged forms of assault and a further 35 calls relating to causing a disturbance, many of which involved belligerent behaviour including fighting. 289 In one case on June 24, 2006 a patron was stabbed two times in the back, resulting in a punctured lung. No assailant was identified. Another call on July 3, 2006 about 2:20 a.m. related to a person who suffered a major concussion, who was found at an intersection near Cheers. There was evidence the victim had attended Cheers at about 11:30 p.m. the previous evening. There was no evidence of where the assault on him occurred. 290 Another call involved a woman who was struck in the face by another woman and received a broken nose on August 18, 2006. The assailant was not identified. 291 In 2005, on August 20th, a Cheers patron was stabbed in the stomach after the bar closed. The injuries were not life threatening and no assailant was identified. 126 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

292 On August 26, 2005 a person was stabbed 8 times in the parking lot at Cheers. His wounds were not life threatening and he was released from hospital after getting stitched up. He refused to cooperate with the police and no assailant was identified. 293 On September 30, 2005 a patron was stabbed in the stomach while in the bar. The injury was not life threatening. 294 While there were, as noted, other incidents of belligerent behaviour and acts of violence or threatened violence throughout 2005 and 2006, those were the occasions over that two year period when the injuries were relatively or potentially serious.

E. The Position of the Parties - Liability i. The Plaintiff’s Position 295 The plaintiff relies on the Police Act, R.S.B.C. 1996, c. 367, s. 34 as creating a duty on the police to protect the public from those who would commit crimes. The plaintiff submits that this establishes a private law duty of care to the public at large. 296 The plaintiff notes that as part of their public mandate, the DPD regularly post crime bulletins on their website, warning the public about areas of crime. The plaintiff submits that no such bulletin was posted about Cheers, despite the police being aware of problems at Cheers from as early as 1995. 297 The plaintiff submits that the evidence establishes that Cheers had a reputation for violence, that the DPD knew about the propensity for violence at Cheers due to the high number of reported incidents between January 1998 and March 2007 totalling 2,410 service calls. The plaintiff asserts that the police demonstrated an understanding of the problems at Cheers when they set up “mobile command posts” outside of Cheers to deal with potentially violent situations before they escalated. 298 The plaintiff says that the DPD failed to take appropriate preventative action in relation to Cheers and had they discharged their duty adequately, he would not have sustained his injuries. 299 The plaintiff submits that over-serving alcohol is likely the true cause of the altercation in which he sustained his injuries and submits that the failure of the police to come to grips with the problem of over-service and the accompanying violence amounts to condonation of the atmos- phere at Cheers. The plaintiff referred to the evidence of violence or potential violence at Cheers over the years and submits that the police re- Burnett v. Moir A.F. Cullen J. 127

sponse was inadequate to ensure a safe experience for people such as himself. 300 The plaintiff cited Schacht v. R. (1974), [1976] 1 S.C.R. 53 (S.C.C.) and N. (D.) v. Oak Bay (District), 2005 BCSC 1412 (B.C. S.C.) for the proposition that the police can be held liable for a failure to warn an appropriate association or government agency which would then be in a good position to take preventative action. 301 The plaintiff submits that the obvious preventative step for the DPD to take was reporting Cheers to the municipal council and the LCLB. The plaintiff submits this would have resulted in enforcement proceedings that would have led to either a suspension of Cheers’ liquor licence or closure of the bar. Had such enforcement proceedings taken place, Cheers would either have been closed or operating in a safer manner on the night the plaintiff attended the bar and suffered his injuries. 302 The plaintiff also relies on Schacht, and Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 160 D.L.R. (4th) 697 (Ont. Gen. Div.) for the proposition that police can be held liable for a failure to warn which includes a duty to warn potential victims. The plaintiff submits that the police could have warned individuals entering the bar about potential dangers during their routine patrols of the area or while uniformed officers checked the identification of patrons entering Cheers. The plaintiff also suggested that police could have put up a sign warning people about the dangers of entering Cheers. 303 The plaintiff also submits that the police have liability grounded in the negligent conduct of their investigation of his assault. 304 The plaintiff relies on Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 (S.C.C.) and Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 (S.C.C.) for the proposition that the police owe a duty of care to members of the public and suspects under investigation to conduct themselves competently. The plaintiff submits that the principles in those cases are also supportive of a duty of care to victims. The plaintiff submits this was recognized in Traversy v. Smith (2007), 52 C.C.L.T. (3d) 109 (Ont. S.C.J.) in which there was a refusal to strike a statement of claim asserting a duty of care between an officer investigating an accident and a victim of that accident. 305 The plaintiff relies on the case of Small v. Stec (2009), 186 C.R.R. (2d) 363 (Ont. S.C.J.) for the proposition that a negligent investigation could result if there is proof that interviewing potential witnesses would have had an impact on the outcome of the case. 128 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

306 The plaintiff submits the Delta Defendants were negligent in their investigation of his assault by not proceeding to interview witnesses in a timely manner and submits that had the interviews taken place in a timely manner, the police would have likely made an arrest, secured a conviction and identified the perpetrator to the plaintiff for a civil action. The plaintiff submits that in particular, the police spent insufficient time at the scene conducting an investigation on the night of the altercation. 307 The plaintiff places significant reliance on Odhavji Estate v. Wood- house and Mooney v. British Columbia (Attorney General), 2004 BCCA 402 (B.C. C.A.) as authority that the police can owe a duty of care to victims in the context of conducting criminal investigations. 308 The plaintiff submits that the failures of the Delta Defendants to warn the plaintiff of the dangers at Cheers or to conduct a reasonably competent investigation caused the plaintiff’s injuries. 309 The plaintiff submits the standard of care is dependent on the facts of the case and in the present case, the defendants were required to take reasonable steps to mitigate the danger to the plaintiff in becoming a patron at Cheers pub. The plaintiff submits reasonable steps in the circumstances involve: 1. recognizing the potential for harm to persons who might attend Cheers night club; 2. reporting incidents of violence to the LCLB; 3. reporting incidents of violence to the municipal council; 4. warning management of Cheers to clean up the place or risk los- ing their liquor licence and/or business permit; 5. warning prospective patrons of dangers within Cheers; and 6. conducting a reasonably thorough investigation. 310 As to causation, the plaintiff relied on Athey v. Leonati, [1996] 3 S.C.R. 458 (S.C.C.) where Major J. stated the test for causation at paras. 13 and 14 as follows: [13] Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.). [14] The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441. Burnett v. Moir A.F. Cullen J. 129

311 The plaintiff also relies on Hanke v. Resurfice Corp., 2007 SCC 7 (S.C.C.) at para. 21, where Chief Justice McLachlin confirmed the test for causation as follows: First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred ... 312 The plaintiff submits but for the negligence of the police, Cheers would not have existed in the form that it did on December 26, 2006 and Mr. Burnett would, in all probability, not have been assaulted. The plaintiff submitted in the alternative that if the court determines there are gaps in the chain of causation caused by the need to determine the actions of third parties such as the LCLB or municipal council, the court may need to rely on the “material contribution test”. 313 The material contribution test was set out by Chief Justice McLachlin at para. 25 of Resurfice where she held as follows: First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach. 314 The plaintiff noted that at para. 28 of Resurfice, Chief Justice McLachlin described a situation where it would be impossible for the plaintiff to prove that but for the defendant’s negligence, the plaintiff’s injury was caused: A second situation requiring an exception to the “but for” test may be where it is impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the “but for” chain of causation. 315 The plaintiff submits that in such circumstance, based on the recent case of Clements (Litigation Guardian of) v. Clements, 2010 BCCA 581 (B.C. C.A.), it is appropriate to use the “material contribution test” in 130 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

assessing the Delta Defendants’ liability. The plaintiff submits that liability should be found against the Delta Defendants and apportioned 50% to the Delta Defendants, 25% to Cheers and 25% to the assailant himself. 316 The plaintiff submits there should be no contributory negligence found based on the submission that even if Mr. Burnett was intoxicated and under the influence of cocaine and steroids at the time of the altercation, a person in his position would be “a product of his environment” and ought not to be held responsible for any violent behaviour he may have exhibited while intoxicated at Cheers.

ii. The Delta Defendants’ Position 317 The defendants submit that a review of the police incident reports for 2005 and 2006 reveal relatively minor incidents of violence and that the police response to each of the situations was entirely appropriate in the circumstances. The defendants submit the plaintiff’s claim that there is no evidence of any enforcement measures is therefore without foundation. The plaintiff submits that as far as a failure to warn is concerned, that the evidence taken as a whole does not establish that the plaintiff would have been aware of any warning issued by the Delta Defendants, or if he did become aware, would have heeded it, given the circumstances under which he attended Cheers and given the fact that he had on previous occasions attended at bars in which violence occurred. 318 Insofar as negligent investigation is concerned, the defendants submit that the plaintiff has failed to establish a duty of care owed to him by the police, a breach of the applicable standard of care and causation. The defendants submit the police response was reasonable. 319 As to the duty of care in relation to the plaintiff both pre-assault and post-assault, the plaintiff submits that the test to be met is: a. whether the relation between the plaintiff and the defendant discloses sufficient foreseeability and proximity to establish a prima facie duty of care; and b. if so, whether there are any residual policy considerations which ought to negate or limit that duty of care. 320 The Delta Defendants submit that this case is distinguishable from the Jane Doe case and the case of Mooney relied on by the plaintiff, in that in those cases, the victim was either a member of a narrowly defined class of potential victims or a particular victim exposed to danger from a particular identifiable source. In the present case, the defendants submit Burnett v. Moir A.F. Cullen J. 131

Mr. Burnett cannot be described as falling into a similarly narrow class of potential victims. The defendants say that the harm to the plaintiff is not foreseeable in the present case and in any event, the class to which the plaintiff belongs is too broad to impose a duty of care. 321 As to the standard of care, the defendants say that the applicable standard of care is stated in Hill v. Hamilton-Wentworth as a reasonable police officer in comparable circumstances. 322 The defendants submit that the Court is not to substitute its own judgment for what it might do if put in a position of police at Cheers during the time period in question, but rather to determine whether the steps that were taken by the DPD fall within the range of options of what a reasonable police officer might do in response to such circumstances. 323 The defendants point out that the DPD conducted regular walk- throughs of Cheers, they conducted routine patrols of the area and had an established presence outside Cheers at closing time. The DPD also promptly responded to calls for service when received and accompanied LCLB inspectors on visits to Cheers. The defendants submit that all of these initiatives are consistent with the approach taken by the VPD in policing the Granville entertainment district and meet the appropriate standard of care. 324 With regard to the investigation, the DPD interviewed many witnesses in the days following the altercation. The bar stool thought to be the one used to strike Mr. Burnett was seized and subjected to forensic testing. The surveillance footage was also seized and reviewed thor- oughly. The cab driver who was seen in the video footage passing the bar at the time of the altercation was interviewed. Mr. Burnett himself was also interviewed and shown video footage of the incident, but all these interviews proved fruitless. The defendants say that taken in its totality, the investigation is consistent with a competent police investigation, which is still seen as ongoing. 325 The defendants submit that causation is not made out in the present case. The defendants say that the material contribution test is unavailable under Hanke v. Resurfice Corp. because it is not impossible for the plaintiff to establish causation through the “but for” test. The defendants say that the plaintiff has failed to establish that had the police reported incidents of violence to the LCLB that the board would have exercised its discretion to take action against Cheers. The defendants submit that even if they had, it is unlikely and unproven that the action would have been sufficient to prevent Mr. Burnett’s injuries. The defendants rely on the 132 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

fact that the plaintiff admitted in cross-examination that he attends bars he knows to be violent and submit that even if the police had warned people about potential dangers at Cheers, the plaintiff would have likely been at Cheers on the night in question anyway. The defendants point out that Mr. Burnett is not a resident of Delta and would have had no reason to read DPD bulletins. The defendants submit that there is evidence that Mr. Burnett ignored a caution from Cheers staff to stand down from the verbal altercation that preceded his injuries and that implies he would not have heeded any such warning in any event. The defendants submit in the alternative the plaintiff should be found contributorily negligent and in any event their apportionment of any liability should not exceed 10%.

F. Discussion and Conclusion - Liability i. The Law 326 I see the dominant issue in this case as whether the law recognizes a private law duty of care in the police discharge of their public duties in circumstances akin to those in the present case. 327 A number of cases have explored that issue, the most prominent of which is the decision of the Supreme Court in Hill v. Hamilton- Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 (S.C.C.). It was written by Chief Justice McLachlin and dealt with the issue “whether the law recognizes a duty of care on an investigating police officer to a suspect in the course of an investigation.” 328 The matter was unsettled and the Chief Justice noted the need to “ask whether as a matter of principle, a duty of care should be recognized in this situation.” Although the various other decisions relied on by counsel in the present case focus on the relationship between a police officer and a victim or the family of the victim, the resolution of the issue in Hill, and the analysis which led to it, play an important role in gauging the proper scope of those decisions and the extent to which they assist in resolving this case. 329 In Hill, Chief Justice McLachlin held as follows at para. 20: [20] The test for determining whether a person owes a duty of care involves two questions: (1) Does the relationship between the plaintiff and the defendant disclose sufficient foreseeability and proximity to establish a prima facie duty of care; and (2) If so, are there any residual policy considerations which ought to negate or limit that duty of care? (See Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as affirmed and explained by this Court in a number Burnett v. Moir A.F. Cullen J. 133

of cases (Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79, at paras. 25 and 29-39; Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80, at para. 9; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, at paras. 47-50; Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18, at para. 47.) 330 In connection with the proximity aspect of the relationship at issue, McLachlin C.J.C. held as follows at paras. 22 - 24 of her decision: [22] The first element of such a relationship is foreseeability. In the foundational case of Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), Lord Atkin stated: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted re- ply.... Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Lord Atkin went on to state that each person “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” (p. 580). Thus the first question in determining whether a duty in negligence is owed is whether it was reasonably foreseeable that the actions of the alleged wrongdoer would cause harm to the victim. [23] However, as acknowledged in Donoghue and affirmed by this Court in Cooper, foreseeability alone is not enough to establish the required relationship. To impose a duty of care “there must also be a close and direct relationship of proximity or neighbourhood”: Cooper, at para. 22. The proximity inquiry asks whether the case discloses factors which show that the relationship between the plaintiff and the defendant was sufficiently close to give rise to a legal duty of care. The focus is on the relationship between alleged wrongdoer and victim: is the relationship one where the imposition of legal liability for the wrongdoer’s actions is appropriate? [24] Generally speaking, the proximity analysis involves examining the relationship at issue, considering factors such as expectations, representations, reliance and property or other interests involved: Cooper, at para. 34. Different relationships raise different considerations. “The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. One 134 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

searches in vain for a single unifying characteristic”: Cooper, at para. 35. No single rule, factor or definitive list of factors can be applied in every case. “Proximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors” (Canadian National Railway v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021 at p. 1151, cited in Cooper, at para. 35). 331 Chief Justice McLachlin noted that most cases of negligence proceed on “a type of relationship previously recognized as giving rise to a duty of care” but where “hitherto unconsidered” relationships arise from a claim, “courts must consider whether the claim for sufficient proximity is established.” 332 In the case before her, the Chief Justice posed the question “whether on principles applied in previous cases this relationship is marked by sufficient proximity to make the imposition of legal liability for negligence appropriate.” 333 The court in Hill did not, however, rely heavily on previous cases decided in the context of a relationship between the police and a victim or a police chief and the family of a victim. In connection with such cases, Chief Justice McLachlin wrote as follows: Further, I cannot accept the suggestion that cases dealing with the relationship between the police and victims, or between a police chief and the family of a victim are determinative here, although aspects of the analysis in those cases may be applicable and informa- tive in the case at bar. (See Odhavji and Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 160 D.L.R. 4th, 697 (Ont. Gen. Div.)). I note that Jane Doe is a lower court decision and that debate contin- ues over the content and scope of the ratio in that case. I do not pur- port to resolve those disputes on this appeal. In fact, and with great respect to the Court of Appeal who relied to some extent on this case, I find the Jane Doe decision of little assistance in the case at bar. 334 I take the Chief Justice’s comments with respect to the Jane Doe decision in particular, to be somewhat cautionary. In that case, the Court found a duty of care to exist between the police force investigating a serial rapist operating in a particular neighbourhood and one of his victims. I will return to that case later in these reasons. 335 In the Hill decision, the court concluded that the relationship between an investigating police officer and a suspect under investigation was sufficiently proximate to engage a duty of care. In the result, the Supreme Burnett v. Moir A.F. Cullen J. 135

Court of Canada dismissed the plaintiff/appellant’s appeal however, on the basis that the impugned police conduct met the general standard of care and was therefore not negligent. 336 How the Court in Hill approached and analyzed the issue of proximity is of considerable importance to the case at bar. The Chief Justice noted that the “most basic factor to consider” is whether “there is a relationship between the alleged wrongdoer and the victim, usually described by the words ‘close and direct’”. 337 The court noted the relationship need not be “intimate” or involve “physical proximity”, but requires circumstances in which the actions of the defendant “have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed.” 338 The Chief Justice concluded that the presence or absence of a personal relationship “is an important factor to consider in the proximity analysis” although she noted it was “not necessarily determinative”. 339 Chief Justice McLachlin also noted the plaintiff has “the formal onus of establishing the duty of care” and the factors at play in the first stage of the analysis are those which arise “from the relationship between the plaintiff and the defendant, for example, expectations, representations, reliance and the nature of the interest engaged by that relationship: Cooper at para. 30 (emphasis deleted) and 34.” 340 In finding a relationship with sufficient proximity to support a cause of action in Hill, the Supreme Court found it to be “personal” and “close and direct”. Hill was “a particularized suspect”. The relationship was not with “the universe of all potential suspects” nor was the plaintiff “one person in a pool of potential suspects”. The court noted he was thus in a closer relationship than in Cooper and Edwards where “the public officials were not acting in relation to the claimant (as the police did here) but in relation to a third party (i.e. persons being regulated) who at a further remove interacted with the claimants.” 341 The Chief Justice noted the interests engaged by the relationship are additional considerations. She noted that there were no “personal representations” by the defendant or “consequent reliance” by the plaintiff which weighs against proximity, but that nevertheless the plaintiff (as a targeted suspect) “has a critical personal interest in the investigation” or that his “freedom, reputation and how he may spend a good portion of his life [are] at stake”. 136 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

342 In the result, the court concluded that “viewed from the broader soci- etal perspective, suspects may reasonably be expected to rely on the police to conduct their investigation in a competent and non-negligent manner” [emphasis added]. 343 In the case of Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, supra, there were three decisions: the first was the decision of Henry J. of the Ontario Supreme Court High Court of Justice ((1989), 58 D.L.R. (4th) 396 (Ont. H.C.)) dismissing an application by the defendant to strike the plaintiff’s pleadings; the second was a decision of the Ontario Supreme Court, Divisional Court, (1990), 72 D.L.R. (4th) 580 (Ont. Div. Ct.)) dismissing an appeal from the ruling of Henry J.; and the third was the decision of MacFarland J. of the Ontario Supreme Court ((1998), 160 D.L.R. (4th) 697 (Ont. Gen. Div.)) granting judgment to the plaintiff. 344 Justice MacFarland neatly summarized the issues raised and resolved with respect to the existence of a duty of care in the circumstances of the case before her in paras. 180 - 183 of her judgment as follows: [180] My task has been rendered less onerous by the very thorough analysis of Henry J. of the issues raised by the pleading in this case reported at (1989), 58 D.L.R. (4th) 396, 48 C.C.L.T. 105 (Ont. H.C.J.), when the matter came before him on a motion to strike out the statement of claim and the succinct reasons of Moldaver J. (as he then was) on behalf of the Divisional Court (1990), 74 O.R. (2d) 225, 72 D.L.R. (4th) 580, when the decision of Henry J. went to that court on appeal. [181] After citing s. 57 of the Police Act, and observing that by virtue thereof the police are charged with the duty of protecting the public from those who would commit or have committed crimes, Moldaver J. (as he then was) goes on at pp. 230-31 as follows: To establish a private law duty of care, foreseeability of risk must coexist with a special relationship of proximity. In the leading case of Anns v. Merton (London Borough), [1978] A.C. 728, [1977] 2 All E.R. 492, 121 Sol. Jo. 377 (H.L.), Lord Wilberforce defined the requirements of this special relationship as follows at pp. 751-52 A.C.: First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, Burnett v. Moir A.F. Cullen J. 137

carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. This principle has been approved by the Supreme Court of Canada in Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2, 66 B.C.L.R. 273, 29 C.C.L.T. 97, 8 C.L.R. 1, 10 D.L.R. (4th) 641, 26 M.P.L.R. 81, 54 N.R. 1, [1984] 5 W.W.R. 1. Do the pleadings support a private law duty of care by the defendants in this case? The plaintiff alleges that the defendants knew of the existence of a serial rapist. It was eminently foreseeable that he would strike again and cause harm to yet another victim. The allegations therefore support foreseeability of risk. The plaintiff further alleges that by the time she was raped, the defendants knew or ought to have known that she had become part of a narrow and distinct group of potential victims, sufficient to support a special relationship of proximity. According to the allegations, the defendants knew: (1) that the rapist confined his attacks to the Church- Wellesley area of Toronto; (2) that the victims all resided in second or third floor apartments; (3) that entry in each case was gained through a bal- cony door; and (4) that the victims were all white, single and female. Accepting as I must the facts as pleaded, I agree with Henry J. that they do support the requisite knowledge on the part of the police sufficient to establish a private law duty of care. The harm was foreseeable and a special relationship of proximity existed. Do the pleadings support a breach of the private law duty of care. The law is clear that in certain circumstances, the police have a duty to warn citizens of foreseeable harm. See Schact v. R., [1973] 1 O.R. 221, 30 D.L.R. (3d) 641 (C.A.), affd sub nom. O’Rourke v. Schact, [1976] 1 S.C.R. 53, 55 D.L.R. (3d) 96, 3 N.R. 453, and Beutler v. Beutler; Adams v. Beutler (1983), 26 C.C.L.T. 229 (Ont. H.C.J.). 138 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

The obvious purpose of the warning is to protect the citizens. I would add to this by saying that in some circumstances where foreseeable harm and a special relationship of proximity exist, the police might reasonably conclude that a warning ought not to be given. For example, it might be decided that a warning would cause general and unnecessary panic on the part of the public which could lead to greater harm. It would, however, be improper to suggest that a legitimate decision not to warn would excuse a failure to protect. The duty to protect would still remain. It would simply have to be accomplished by other means. In this case the plaintiff claims, inter alia, that the duty owed to her by the defendants required (1) that she be warned of the impending danger; or (2) in the absence of such a warning, that she be adequately protected. It is alleged that the police did neither. Instead she claims they made a conscious decision to sac- rifice her in order to apprehend the suspect. They decided to use her as “bait”. They chose not to warn her due to a stereotypical belief that because she was a woman, she and others like her would become hysterical. This would have “scared off” the attacker, making his capture more difficult. [182] The evidence establishes that Det. Sgt. Cameron clearly had linked the four rapes which preceded Ms. Doe’s by the early days of August in 1986 and he and Det. Sgt. Derry knew that the rapist would continue to attack women until he was stopped. They knew the rapist was attacking single white women living alone in second - and third-floor apartments with balconies in the Church/Wellesley area of the City of Toronto. [183] On the evidence I find the plaintiff has established a private law duty of care. 345 She went on to consider whether the police breached the private law duty of care to the plaintiff in paras. 184 - 189 as follows: [184] Detective Sgts. Derry and Cameron determined, in the context of their investigation, that no warning would be given to any women - let alone the specific target group they had identified and among the reasons given for deciding not to warn was their view that women would panic and compromise the investigation. Detective Sgt. Cam- Burnett v. Moir A.F. Cullen J. 139

eron gave this as a reason to Ms. Doe when he interviewed her following her rape and she asked why women had not been warned. [185] In spite of the knowledge that police had about this sexual rapist and their decision not to warn, they took no steps to protect Ms. Doe or any other women from this known danger. In my view, in the circumstances of this case, the police failed utterly in the duty of care they owed Ms. Doe. [186] The decision not to warn women was a decision made by Sgts. Cameron and Derry in the course of their investigation. It was made on the basis of “shop talk” they had overheard or been a part of, according to them, in relation to the Dawson Davidson Annex Rapist investigation. What is apparent is that neither Sgts. Cameron nor Derry made any real effort to look into that investigation and determine whether in fact it had been the publicity that caused Dawson Davidson to flee. [187] Their decision was based largely on rumour and “shop talk” essentially within the 52 C.I.B. and they said they relied on it alone in making the very serious decision not to warn these women of the risk they faced. This they did in the face of the almost certain knowledge that the rapist would attack again and cause irreparable harm to his victim. In my view their decision in this respect was irresponsible and grossly negligent. [188] There is simply no evidence before this court which could be interpreted as suggesting that no warning should have been given in the circumstances of this case. The only persuasive expert opinion called by the defence, in fact, suggests that a suitable warning could have been and should have been given. While the defence experts were careful in giving their evidence when one looks at the totality of their evidence this conclusion is irresistible. [189] Sergeants Cameron and Derry made a decision not to warn women in the neighbourhood and did not do so. They took no steps to protect the women they knew to be at risk from an almost certain attack in result, they failed to take the reasonable care the law requires and denied the plaintiff the opportunity to take steps to protect herself to eliminate the danger and ensure that she would not be attacked. 346 In a not dissimilar case, Hill v. Chief Constable of West Yorkshire, [1988] 2 W.L.R. 1049 (U.K. H.L.), a young woman was attacked and killed by a man who was eventually charged and convicted of her mur- der. It was alleged that he had attacked and killed or attempted to kill a number of young women in the same area in similar circumstances in 140 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

previous years. The deceased mother launched an action framed in negligence against the police, claiming damages, alleging the police failed in their duty to properly investigate the previous offences and arrest the perpetrator before the deceased was killed. 347 At first instance, on application of the defendants, the plaintiff’s Writ and Statement of Claim was struck as disclosing no cause of action. That ruling was upheld in the Court of Appeal and ultimately by the House of Lords. 348 In the majority judgment in the House of Lords, Lord Keith of Kinkel outlined the public law duty of police officers and its implication for the private law duty of care being asserted at pp. 5 - 6 as follows: By common law police officers owe to the general public a duty to enforce the criminal law: see Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn, [1968] 2 Q.B. 118. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public. 349 Lord Keith noted at p. 6 the elements of a private law duty of care requires more than simply foreseeability of harm: Some further ingredient is invariably needed to establish the requisite proximity of a relationship between plaintiff and defendant and all the circumstances of the case must be carefully considered and analyzed in order to ascertain whether such an ingredient is present. 350 Lord Keith considered the case of Dorset Yacht Co. v. Home Office, [1970] A.C. 1004 (U.K. H.L.), in which young inmates with records of previous escapes were taken to an island by prison officers in the vicinity of some moored yachts. Some of the inmates escaped from the island by taking a yacht and in the course of their manoeuvres damaged another yacht. Burnett v. Moir A.F. Cullen J. 141

351 The owner brought suit against the prison officials. In that case, a private law duty and care was found to exist with the requisite relationship of proximity. 352 In his judgment, Lord Keith characterized the relationship thus at p. 7: To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a Borstal trainee from escaping from his custody before completion of the trainee’s sen- tence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public. 353 Lord Keith noted that “Ms. Hill was one of a vast number of the female general public who might be at risk from (the killer’s) activities but was at no special distinctive risk in relation to them ...”. He concluded as follows: The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Ms. Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the home office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Ms. Hill by the Westyorkshire police. 354 In Traversy v. Smith, supra, the Court was dealing with an application for leave to appeal the dismissal of a motion to strike out the plaintiff’s statement of claim as disclosing no reasonable cause of action against Her Majesty the Queen in Right of Ontario and Constable P.J. Toms. The claims against HMTQ (Ont) and Toms alleged negligent investigation into a serious motor vehicle accident which the plaintiff/respondent was involved in. The claim was based on “ongoing mental distress, anger, depression and anxiety” as well as “prejudice to the plaintiff’s ability to determine the events of the accident ...” and damages arising from the plaintiff’s inability to prove negligence against the principal defendants as a result of the negligent investigation. 355 The chambers judge noted that the tort of negligent investigation by police had been recognized in Ontario in Beckstead v. Ottawa (City) (1997), 37 O.R. (3d) 62 (Ont. C.A.) and Hill v. Hamilton-Wentworth 142 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

(Regional Municipality) Police Services Board (2005), 76 O.R. (3d) 481 (Ont. C.A.). 356 The chambers judge in Traversy concluded the plaintiff before her had an interest in P.J. Tom’s alleged negligent investigation and that the defendants were unable to demonstrate that it was certain the plaintiffs would fail in establishing liability. 357 The divisional court judge agreed. Mr. Justice Power ruled, after considering the Supreme Court of Canada’s decision in Hill v. Wentworth that leave to appeal should not be granted. He concluded as follows at para. 33: For the foregoing reasons I am satisfied that the moving parties have failed to meet the tests for leave to appeal set out in Rule 62.02(4)(a) and (b). Indeed, in my opinion, Ratushny J.’s decision is a correct decision. In my opinion, the existing jurisprudence does not, as argued, stand for the proposition that there is no private law duty of care giving rise to an action in negligence between a police officer investigating a motor vehicle accident and one of the persons (or to that person’s family) whose injuries in the accident were caused by others and who is claiming damages as a result of the underlying accident. (See para. 15(a) and (b) of these reasons). In addition, without a court having an opportunity to examine the entire circumstances of the relevant circumstances, it cannot be stated categorically that the relationship is not a proximate one. (See para. 15(d) of these reasons). 358 In another case relied on by counsel for the defendants, Donald J.A., in dissent, addressed the issue of whether an investigating officer owes a duty of care to a potential victim. In Mooney v. British Columbia (Attorney General), 2004 BCCA 402 (B.C. C.A.) at issue was whether the trial judge erred in dismissing the plaintiff’s claim finding no causation between the negligent investigation and the ultimate harm suffered by the victims. In coming to his conclusion, the trial judge found a duty of care and a breach of the standard of care in circumstances where the police failed to investigate threatening behaviour of the plaintiff Bonnie Mooney’s former spouse, Ronald Kruska. Seven weeks after the failed investigation, Kruska came to Bonnie Mooney’s house and seriously injured her daughter, the plaintiff Michelle Mooney, shot and killed a friend of Ms. Mooney’s and caused significant psychological trauma to the plaintiff Kristy Mooney who was present at the time, but not physi- cally injured. Burnett v. Moir A.F. Cullen J. 143

359 The trial judge dismissed the action, finding no causal connection between the failure to investigate and the subsequent harm to the various plaintiffs. 360 The trial decision was upheld by Hall and Smith JJ.A. on the issue of causation. 361 In his dissent, Donald J.A. would have found causation and was thus obliged to deal with the respondent’s argument that there was no duty of care in respect of the victims of the crime which the negligent investigation failed to deter. 362 In connection with that argument by the respondents, Donald J.A. held as follows at para. 44: These arguments are supported by English authority, most notably Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238 (H.L.). The trial judge did not find that case helpful, nor do I. The public policy considerations were said there to apply where a claim is from a member of a large indeterminate class of persons to whom a general duty of protection is owed. The House of Lords did not exclude private law responsibility for claims arising within a proximity of relationship between the police and the claimant: Home Office v. Dorset Yacht Co. Ltd., [1970] A.C. 1004, 2 All E.R. 294. 363 Justice Donald then quoted passages from Lord Keith’s judgment in Hill v. Chief Constable of West Yorkshire and made the following observations in distinguishing it from the case before him at paras. 46 and 47: [46] The facts in the instant case are quite different from Hill, supra. Bonnie Mooney sought police assistance and had a direct engage- ment with an officer when she presented her complaint. She had a pressing need for protection as a potential victim of Kruska’s violence and the police should have recognized that. She cannot be said to fall into a large indeterminate class; to the contrary she was a person, in Lord Keith’s words at 243 of Hill, supra, with a “special distinctive risk”. [47] In any event, Canadian courts are not so protective of the police. A private duty of care was found in two cases where the victims were part of a class rather than individuals specifically at risk. 364 The two cases cited by Justice Donald were Schacht v. R. which dealt with a police failure to replace a sign warning of an open culvert under construction on a highway after an accident, and the Jane Doe decision. 365 In finding a relationship of proximity between the police and Ms. Mooney, Donald J.A. also relied on policies laid down by the Ministry of 144 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

the Attorney General, adopted by the R.C.M.P. in relation to domestic violence, which he observed “relate not only to the special proximity between police and complainants, but also gave content to the duty of care and set the standard of care.” 366 Justice Donald then turned to consider the case of Odhavji Estate v. Woodhouse, which had been decided after the appeal before him was argued. He summarized the circumstances of that case in para. 52 as follows: [52] Since the hearing of the appeal, the Supreme Court of Canada issued its reasons in Odhavji Estate v. Woodhouse, 2003 SCC 69. It concerns an action framed in tort alleging misfeasance in public office and negligence against police authorities and others. Marvish Odhavji was shot and killed by officers of the Metropolitan Toronto Police Service after a robbery. The Special Investigations Unit was called in to investigate the conduct of the officers. The officers refused to cooperate and thereby compromised the investigation. Mem- bers of the family of the shooting victim sued to recover damages for psychological harm resulting from the unsatisfactory investigation. They alleged that the failure of the Chief of Police and the Police Services Board to command the officers’ cooperation was misfeasance and negligence. 367 In the result, in that case, the Court held the claims against the police officers and the Chief of Police could stand. 368 Justice Donald concluded in the circumstances before the court in Mooney that the trial judge was correct in imposing a duty of care on the police, holding at para. 57: [57] In summary on the question of the duty of care, having made herself known to the police as a person in fear of a violent abuser, Bonnie Mooney established a special relationship of proximity with the police thereby creating a private duty of care. The duty on the police was to act on the complaint promptly. I am in substantial agreement with the trial judge’s ruling on this issue. 369 As noted, the majority decisions rendered by Hall and Smith JJ.A. dealt with the appeal without reference to the correctness of the trial judge’s determination that there was a duty of care in the circumstances of that case. 370 In a 2009 decision, Project 360 Investments Ltd. v. Toronto Police Services Board, 2009 CanLI 36380 [2009 CarswellOnt 3418 (Ont. S.C.J.)] MacDonnell J. dealt with an application to strike pleadings asserting a claim in negligence against police officers. Burnett v. Moir A.F. Cullen J. 145

371 MacDonnell J. described the application before him thus in para. 1: The defendants move under Rule 21.01(1) of the Rules of Civil Pro- cedure for an Order striking paragraphs 35 and portions of paragraph 36 of the Statement of Claim. They submit that those paragraphs as- sert a claim in negligence that cannot possibly succeed because it is premised on a general private law duty of care, owed to individual members of the public by the police, that does not exist. While the defendants do not dispute that particular circumstances may create a relationship that is sufficiently proximate to give rise to a private law duty of care, they submit that with respect to the claim asserted in the impugned paragraphs no such circumstances have been pleaded. 372 MacDonnell J. gave effect to the motion concluding: In the absence of circumstances giving rise to a special relationship of proximity, the relationship between the police and individual members of the public does not give rise to a private law duty of care. 373 He went on to find “the plaintiff has not pleaded facts that establish a special relationship of proximity.” He granted leave to amend “if the plaintiff’s are so advised”. 374 The factual context before Justice MacDonnell is different from the case at bar. The plaintiffs were the owners of a nightclub in which a patron was shot by a man named McCalla after midnight on October 6, 2002 after he entered the club the previous evening. The plaintiff/owners of the club allege that as a result of the shooting, they suffered economic damages. 375 The impugned pleadings asserted that the police learned on October 5th that McCalla intended to go to the nightclub armed with a firearm. It was not pleaded that the police were aware of any connection, past, present or prospective between McCalla and the nightclub. 376 The defendant police conceded that once they had knowledge of Mc- Calla’s intention to go to the nightclub, there was sufficient proximity in their relationship to the plaintiff to give rise to a private law duty of care, and thus they sought only to strike the portion of the claim that alleged negligent investigation resulting in a failure to arrest McCalla, which would have prevented the shooting and failure to warn the patrons or staff of the nightclub “of the information that had been complied on Mc- Calla”. The pleadings also alleged a failure to identify McCalla as a suspect, a failure to investigate him adequately or at all, and a failure to take 146 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

steps to permit the plaintiffs and their staff to identify and locate McCalla. 377 The premise of the application to strike was that those allegations asserted the police owed the plaintiffs a duty of care “regardless of whether they had any knowledge of a link between McCalla and the plaintiffs.” The defendants submitted it is plain and obvious no such duty of care was owed and the police failure to arrest McCalla was in breach of no such duty. 378 In the course of his reasons for striking the impugned paragraphs, Justice MacDonnell relied on the proposition which he derived from various decisions that “the general relationship between the police and individual members of the public has not been recognized as one in which a private duty of care arises.” He acknowledged, however, relying on the Jane Doe case, that “particular circumstances may create a situation in which such a duty is owed”. He noted in those cases where a duty of care was found, the courts were required to distinguish the plaintiffs from other members of the public. 379 He noted that in a series of decisions “in several contexts over the course of the past eight years” different courts have held that “pursuant to the applicable statutory framework, the duty of the defendants was owed to the public as a whole and not to individual members of the public, and accordingly ... proximity had not been established.” He cited Cooper v. Hobart, [2001] 3 S.C.R. 537 (S.C.C.); Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562 (S.C.C.); Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 82 O.R. (3d) 321 (Ont. C.A.); Attis v. Canada (Minister of Health), 2008 ONCA 660 (Ont. C.A.); Williams v. Canada (Attorney General), 2009 ONCA 378 (Ont. C.A.) and Abarquez v. Ontario, 2009 ONCA 374 (Ont. C.A.). 380 MacDonnell J. concluded from his review of the statutory provisions respecting police in Ontario “it is manifest ... the duties of police officers ... is to the public as a whole and not just specific individuals”. 381 He held at para. 19 as follows: To paraphrase language used by the Supreme Court of Canada in Edwards v. Law Society of Upper Canada, supra, and borrowed by the Court of Appeal in Williams, supra, in fulfilling their duties the police are required to act in the general public interest and to balance “a myriad of competing interests the nature of which are inconsistent with the imposition of a private law duty of care.” Burnett v. Moir A.F. Cullen J. 147

382 On that basis, while acknowledging that a pleading raising a special relationship of proximity between the police and the plaintiff could stand, MacDonnell J. found in the absence of such a pleading no basis to uphold the pleading asserting a private law duty of care. He concluded as follows at para. 28: As I suggested earlier, the focus of the Chief Justice in Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, and of Henry J., Moldaver J., and MacFarland J. in Jane Doe, on the specific aspects of the plaintiffs’ situation vis a vis the police that distinguished them from other members of the public would not have been necessary if there were a general private law duty of care owed by the police to individual members of the public. Accordingly, in order for the plaintiffs to maintain an action in negligence against the police for their failure to arrest McCalla prior to October 5, 2002, they must plead facts on the basis of which it could be found that a special relationship of proximity existed prior to October 5, 2002. The Statement of Claim contains no facts of that nature. The plaintiffs have not pleaded that prior to October 5, 2002, the police had any knowledge that McCalla had any link whatsoever to the plaintiffs or their nightclub, that he had ever been there, or that he ever intended to go there. Further, the plaintiffs have not pleaded that the police had any relationship with them prior to October 5. Based on the facts pleaded in the Statement of Claim, prior to October 5 the plaintiffs were in the same position vis a vis the police as every other member of the public. 383 The most recent decision dealing with allegations of a duty of care arising from police conduct is Wellington v. Ontario, 2011 ONCA 274 (Ont. C.A.). The issue as posed by the Court in that case was “do victims of crime committed by police officers have the right to sue the special investigation unit (“SIU”) for negligent investigation?” 384 The circumstances giving rise to the issue in that case involved two police officers shooting and killing a 15 year old boy in the context of the pursuit of a van he was driving. The SIU was the body charged with the responsibility of investigating the shooting. The deceased’s mother and sister and his estate brought an action against the SIU alleging a negligent investigation. The defendants applied to strike the action as disclosing no cause of action. The application was dismissed by the Chambers judge who held: It was not plain and obvious that the action could not succeed and a full evidentiary record was required. 148 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

385 The dismissal was appealed to the divisional court and upheld with a dissent. On further appeal to the Ontario Court of Appeal, the appeal was allowed and the action was dismissed. 386 In its analysis, the Court of Appeal, speaking through Sharpe J.A. considered whether the duty asserted by the plaintiffs was novel or had already been recognized by law as a precondition for determining whether the facts alleged gave rise to a private law duty of care. 387 The Court noted if the duty has already been recognized by law, then a duty of care is established and it is unnecessary to engage in further analysis. The Court also noted that if it had been held that no duty of care arises on the facts pleaded “a full Cooper/Anns analysis is not required.” 388 The Court considered Hill v. Hamilton-Wentworth, Beckstead v. Ot- tawa (City), supra, and Norris v. Gatien (2001), 56 O.R. (3d) 441 (Ont. C.A.) and Jane Doe v. Metropolitan Toronto (Municipality) Commis- sioners of Police and concluded the state of the law was as follows: While the police owe a duty of care to a particular suspect under investigation (see Hill and Beckstead) and to warn a narrow and distinct group of potential victims of a specific threat (see Jane Doe), there is now a long list of decisions rejecting the proposition that the police owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes. 389 Justice Sharpe found the situation of a suspect, subject to a police investigation, distinguishable as he or she “faces the risk of the stigma of being charged and convicted as well as potential loss of liberty and Char- ter rights.” He noted: “the interest of victims and their families in a proper investigation are simply not comparable.” 390 In the course of his analysis on whether the duty of care alleged had already been recognized by the law, Sharpe J.A. referred to Norris v. Gatien, supra, in paras. 17 - 19 of his reasons as follows: [17] The appellants submit that the duty of care alleged by the respondents has already been excluded by a decision of this court. In Norris v. Gatien (2001), 56 O.R. (3d) 441 (C.A.), leave to appeal to SCC dismissed, [2002] S.C.C.A. No. 54, a cyclist was struck and killed by a motor vehicle driven by an OPP officer. The cyclist’s family sued the officer, the OPP and Mr. Gatien, the municipal police officer who had investigated the fatal accident. Against Gatien, the plaintiffs alleged that he negligently investigated the death, leading to the failure of the criminal prosecution against the OPP officer for impaired driving causing death and driving “over 80”. As in this case, the plaintiffs alleged that their emotional distress had been ex- Burnett v. Moir A.F. Cullen J. 149

acerbated by Gatien’s failure to conduct a proper investigation. Ga- tien successfully moved under Rule 21 to strike the claim as disclosing no cause of action. [18] This court dismissed the appeal and upheld the order striking out the claim against Gatien. Writing for the court, Austin J.A. applied the test set out in Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2, which corresponds closely to the current Cooper-Anns test. Austin J.A. concluded, at paras. 17 - 19, that the relationship between the parties did not give rise to a Prima facie duty of care: This is so because the plaintiffs had no legal interest in the investigation or prosecution of [the OPP officer]; that investigation and prosecution were matters of public law and public interest. Nor had the plaintiffs any legal interest in the disciplinary proceedings taken against [the OPP officer]. Had [the OPP officer] been convicted on either or both charges, the plaintiffs, or some of them, may have derived some personal satisfaction from that conviction. That satisfaction, however, would have been a purely personal matter; it would have no reality in law. Nor did the failure to reach that verdict have any consequence for the appellants sounding in damages. [19] White Norris preceded the Supreme Court’s holding in Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, that the police owe a duty of care to targeted suspects (discussed below), that duty had already been recognized by this court in Beckstead v. Ottawa (City) Chief of Police (1997), 37 O.R. (3d) 62 (C.A.). In Norris, at paras. 19-20, Austin J.A. held that neither Beckstead, nor Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, (1990) 74 O.R. (2d) 225 (Div. Ct.), supported the family’s claim. In Beckstead, the careless investigation resulted directly in the plaintiff being charged with fraud. In Jane Doe, the police negligence contributed to the plaintiff being sexually assaulted by a known suspect. The alleged negligence in both Beckstead and Jane Doe had a direct, profound and damaging legal impact on the plaintiffs. In Norris, the family’s claim for added grief or mental distress did not implicate rights or interests of a like nature. 391 He also dealt with the Odhavji case, distinguishing it from the case before him and finding, in Justice Iacabucci’s reasons in that case, support for the proposition that individuals are not entitled to damages for an 150 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th) alleged failure to conduct a thorough investigation. He reasoned as follows in paras. 25 - 28 of his judgment: [25] It is my view that Odhavji is distinguishable from the case at bar and that, indeed, passages in Odhavji support the position of the appellants. [26] Unlike the present case, in Odhavji the victim’s family did not sue the SIU officers or anyone else for negligent investigation of the shooting. The claim against the police officers was for misfeasance in public office, a tort that requires an element of deliberate unlawful conduct as well as awareness that the conduct is unlawful and likely to harm the plaintiff. In finding that the claim for misfeasance in public office should proceed, Iacobucci J., writing for the court, made clear that he was not deciding that the family could sue for negligent investigation, at para. 40: In the defendant officers’ submission, the essence of the plaintiffs’ claim is that they were deprived of a thorough, competent and credible investigation. And owing to the fact that no individual has a private right to a thorough, competent and credible criminal investigation, the plaintiffs have suffered no compensable damages. If this were an accurate assessment of the plaintiffs’ claim, I would agree. Individual citizens might desire a thorough investigation, or even that the investigation result in a certain outcome, but they are not entitled to compensation in the absence of a thorough investigation or if the desired outcome fails to materialize. This, however, is not an accurate assessment of the plaintiffs’ submission. [27] The negligence claim pleaded against the Chief of Police was directly tied to the misfeasance in public office claim asserted against the individual police officers under his supervision. The “essence” of the claim was that the Chief “breached a duty to take reasonable care to ensure that the defendant officers complied with their legal obligation to cooperate with the SIU investigation”, at para. 52. That claim was considered under the Cooper-Anns test. The court held, at para. 54, that while the plaintiffs might well have difficulty in establishing that their distress and anger rose “to the level of compensable psychiatric harm”, it was not “plain and obvious” that the claim would fail and hence the pleading should not be struck out. Iacobucci J. repeat- edly linked the negligence claim against the Chief to the alleged Burnett v. Moir A.F. Cullen J. 151

“misconduct” or “improper conduct” of the officers, for example, at paras. 57-58: It is only reasonable that members of the public vulnera- ble to the consequences of police misconduct would expect that a chief of police would take reasonable care to prevent, or at least to discourage, members of the force from injuring members of the public through improper conduct in the exercise of police functions. ... The fact that the Chief already is under a duty to ensure compliance with an SIU investigation adds substantial weight to the position that it is neither unjust nor unfair to conclude that the Chief owed to the plaintiffs a duty of care to ensure that the defendant officers did, in fact, cooperate with the SIU investigation. [28] When the judgment is read as a whole, I cannot accept the submission that by allowing the action in negligence to proceed against the Chief, Iacobucci J. intended to reverse the proposition asserted a few paragraphs earlier that individual citizens are not entitled to damages where there is a failure to conduct a thorough investigation. 392 Justice Sharpe concluded that the duty of care at issue before him had not previously been recognized, but went on to consider whether there was anything in the statutory mandate of the SIU that gives rise to a duty of care. 393 He concluded that “to impose a private law duty of care would, in my view, introduce an element seriously at odds with the fundamental role of the SIU to investigate allegations of criminal misconduct in the public interest.” (para. 45). He concluded the SIU’s “duties are not focussed on the detection or protection of victim’s interests but instead relate to protecting the public at large.” (paras. 49). 394 Sharpe J.A. saw in the circumstance before him, similarity to: [a] well established line of cases standing for the general proposition that public authorities charged with making decisions in the general public interests, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public. 395 He concluded the respondents failed to establish a prima facie duty of care under the first branch of the Cooper-Anns test and thus, it was unnecessary to consider whether the duty should be negated for policy reasons. 152 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

ii. Application of the Law to the Facts 396 In my view, the law which has arisen from attempts to establish a private law duty of care from a public official’s discharge of public duties does not favour the plaintiff’s case.

(1) Pre-Assault 397 The essence of the plaintiff’s case against the Delta Defendants for the pre-assault period is that they knew or ought to have known that Cheers was an environment that fostered a certain level of disturbance and violence on an ongoing basis and that their failure to warn of dangers to potential patrons, to take definitive steps to solve the problem, or to abate the risk it represented to an acceptable level, constitutes negligence. Inherent in the plaintiff’s position is the precept that the Delta Defendants owe a private law duty of care to individual members of the public who might become patrons at Cheers pub. 398 The plaintiff likens his position to that of the plaintiffs in Schacht, or Jane Doe, alleging, as with those plaintiffs, both foreseeability and a sufficiently proximate relationship to establish a private law duty of care. 399 As I see it, however, although the plaintiff’s argument has some attraction, it fails to account for the necessary elements of proximity identified by Chief Justice McLachlin in Hill v. Hamilton Wentworth and ex- emplified in the other decisions dealing with the question of whether and when a private law duty of care can arise from the discharge of a public duty or function. 400 The dominant characteristic of proximity necessary to a private law duty of care is a relationship between the alleged wrongdoer and the victim, that is “close and direct” in the sense that “the wrongdoer ought to have the victim in mind as a person potentially harmed”. (Hill v. Hamil- ton Wentworth at para. 29). In that context, “while not necessarily determinative, the presence or absence of a personal relationship is an important factor”. (Hill v. Hamilton Wentworth para. 30). In the present case, it could not be said that the relationship between the plaintiff and the Delta Defendants before the assault was close or direct. The plaintiff had never attended Cheers before, he was not known to the Delta Defendants as a person more likely than anyone else to become a patron of Cheers or to be caught up in an assault. He was not a member of a group more likely to be targeted by an assault at Cheers or elsewhere. There is no personal relationship between the plaintiff and the Delta Defendants. Burnett v. Moir A.F. Cullen J. 153

401 Insofar as the other factors identified by Chief Justice McLachlin in- dicative of a close and direct relationship are concerned, including “any expectations, representations and reliance” arising from the relationship are concerned, there was little or no evidence that the plaintiff had any particular expectation of the Delta Defendants vis-a-vis the Cheers pub. It was clear from his evidence that he had been in other drinking premises where fights had broken out both inside and out. Indeed he testified that he had been at the Roxy nightclub both before and after the assault, and based on the evidence of police service calls to that establishment and the evidence of Argent of the VPD, it appears there is little to distinguish the Roxy (and other adjacent Granville Street nightclubs) from Cheers in terms of the number or nature of police service calls and corre- sponding activities. 402 In addition, there was no evidence of any specific representations from or reliance on the Delta Defendants beyond the implicit representation that because Cheers was licensed to operate meant that it met certain regulatory standards. There is little or no evidence, however, that the plaintiff relied on the fact of licensing as warranting a particular standard of behaviour at the bar. Given his previous experiences in various bars and nightclubs, it appears unlikely that the relationship, such as it was, between the plaintiff and the Delta Defendants, entailed any substantive reliance by the plaintiff based on the fact that Cheers was licensed to operate. 403 His relationship to the Delta Defendants was no closer or direct (and arguably more removed and less direct) than the relationships in Cooper and Edwards where “public officials were not acting in relation to the claimant ... but in relation to a third party ... who, at a further remove, interacted with the claimants.” 404 In the present case, the Delta Defendants were similarly removed from the plaintiff. They dealt with representatives of the LCLB as well as Cheers staff and management in an enforcement capacity, but had no direct dealings or relationship with the plaintiff or the person who assaulted him. 405 The cases in which police failure to act, or negligent actions in connection with a potential victim have engaged a duty of care, in Mooney, Jane Doe and Schacht, either involve specific ascertainable threats to specific ascertainable victims or specific ascertainable threats to a particular class of victim. In Mooney, the police duty was engaged by a complaint made by the potential victim, of threats from her former spouse. In 154 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

Schacht, the specific threat or risk of harm was an open culvert under construction on a highway and the identifiable group were users of the highway - a group in relation to whom the elements of representation, reliance and expectation would undeniably be at play in relation to those charged with the responsibility of patrolling the highway. As noted by Sharpe J.A. in Wellington v. Ontario, in connection with the Jane Doe case, the victims were part of a “narrow and distinct group” facing “a specific threat”. There are thus clear distinctions to be drawn between the present case involving the plaintiff’s membership in a large indeterminate pool of potential victims and a non-specific threat, which the evidence reveals, was not unique to the Cheers pub. 406 Another aspect of the evidence that weighs against finding proximity based on the factors of expectation, representations and reliance, relates to the plaintiff’s consumption of alcohol and cocaine in combination with his steroid use. The evidence is that combination of drugs is a potent mix, likely to make the user more prone to responding belligerently to real or perceived provocations. 407 While that evidence may be primarily relevant to an issue of contributory negligence, it also has some bearing on proximity. In particular, it belies any inference that might otherwise be open that the plaintiff attended Cheers pub with any particular expectation of, or reliance on there being an environment shaped by police presence, enforcement or regulation. 408 In other words, whether the plaintiff’s consumption of drugs and alcohol actually contributed to the circumstances giving rise to the harm is not at issue in assessing proximity. The point is simply that it is objectively improbable that a person who consumes a mix of drugs with the potential to cause aggression (in the case of steroids and cocaine) and to decrease inhibitions (in the case of alcohol) in the context of attending a particular nightclub has expectations of or reliance on there being police enforcement of the Liquor Act or licensing regulations. 409 That illustrates the difficulty in finding a close and direct relationship between a police or other regulatory agency and a pool of people as large, indeterminate, and idiosyncratic as the potential patrons of any particular bar. 410 It also illustrates the difficulty in finding a close causal relationship in such circumstances as it relates to the failure to warn and the subsequent harm caused. It is objectively improbable that the plaintiff would have encountered a warning had one been issued, in respect of the Cheers pub, Burnett v. Moir A.F. Cullen J. 155

given his lack of connection to Delta and unfamiliarity with the Delta Defendants’ website or any local news sources. Equally, it is objectively improbable that he would have heeded any such warning had he encountered it, given the evidence of his attendance at other bars or nightclubs with similar environments to Cheers, and his consumption of drugs that would tend to affect his judgment. 411 The presence or absence of a close causal connection between the negligence alleged and the harm caused is a factor in determining proximity. In Odhavji Estate v. Woodhouse, supra, Iacobucci J. held as follows in the context of a proximity analysis at para. 57: Although a close causal connection is not a condition precedent of liability, it strengthens the nexus between the parties. 412 Where, as here, the causal connection, insofar as the failure to warn is concerned, is remote and speculative rather than close, it cannot be said that the nexus between the parties is strong or compelling. 413 For those reasons, while finding some limited evidence of a connection between the Delta Defendants and prospective Cheers patrons arising from the police corporate knowledge that a person entering Cheers was likely to be exposed to an environment involving some violent or turbulent circumstances, I am not satisfied the evidence reaches the level of establishing a close and direct relationship featuring the indicia of proximity identified by Chief Justice McLachlin in Hill v. Hamilton- Wentworth, supra, or manifested in other decisions such as Jane Doe, Mooney, or Schacht. 414 I thus conclude the relationship at issue does not sustain sufficient proximity to found a duty of care. The plaintiff was but one of a large indeterminate pool of potential patrons of Cheers, rather than an identifiable potential victim of a specific threat.

(2) Post-Assault 415 The foundation for the asserted liability of the Delta Defendants in negligence post assault, consists of a number of contentions. The first is that Uppal failed to call for assistance from EHS in a timely way. The second is that DPD lost or destroyed critical videotape evidence. The third is that the Delta Defendants negligently conducted their investigation into the plaintiff’s assault, thus failing to identify the perpetrator. 416 Insofar as the first contention is concerned, assuming the existence of a duty of care between Uppal and the plaintiff when Uppal arrived on the scene to find him seriously injured, there is no evidence of what is al- 156 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

leged. The evidence is that EHS had already been called to the scene and were on the way, and it was EHS who notified the police of the circumstances. There is further evidence that Uppal did in fact request that EHS get to the scene as soon as possible. In the result, there was an interval of slightly less than 13 minutes between the assault and the arrival of EHS. There is no evidence that even if there had been a negligent failure by the defendants to summons an ambulance as soon as possible, that it had any effect or impact on the plaintiff’s injuries. There is thus no basis for a finding of a breach of any standard of care against Uppal on the basis that he failed to call for assistance from EHS or that if he did, it was not in any way causative of the plaintiff’s injuries. 417 An aspect of the plaintiff’s assertion of a negligent investigation is the loss or destruction of the critical video evidence. Leaving aside the question of whether there is a duty of care which arises between the Delta Defendants and the plaintiff in the circumstances, the evidence falls short of establishing the loss or destruction of any video surveillance evidence. At best, the evidence establishes that a compact disk “burnt” from the video surveillance on a hard drive was inadvertently destroyed, but only after it was downloaded onto the DPD’s hard drive. In addition, the evidence establishes that the video surveillance captured on Cheers pub’s computer hard drive from the evening in question was “mirrored” by DPD and was available for the investigation and, in turn, for the plaintiff’s action. Accordingly, there is no basis for a finding of negligence with respect to that allegation. 418 The main thrust of the plaintiff’s allegation relates to the fact that the police efforts did not yield sufficient evidence of an assailant to even consider charges, which the plaintiff attributes to the lack of a thorough or competent investigation. 419 The plaintiff relies particularly on Odhavji Estate, Mooney and Traversy in support of a contention that once he became the victim of a crime, a private law duty of care is imposed on the police charged with the responsibility of investigating the crime. 420 The case which is factually most similar to the case at bar is Traversy. It is important to note, however, that neither in the original application to strike the pleadings, nor in the application for leave to appeal in that case, was there an affirmative finding that there was such a duty of care. Burnett v. Moir A.F. Cullen J. 157

The net effect of Traversy is summed up by Power J. in para. 33 of his judgment that: Without a court having an opportunity to examine the entire circumstances of the relevant circumstances, it cannot be stated categorically that the relationship was not a proximate one. 421 Moreover, the currency of that holding, it seems to me, is called into question by the decision of the Ontario Court of Appeal in Wellington v. Ontario which held: [t]o impose a private law duty of care would in my view introduce an element seriously at odds with the fundamental role of the SIU to investigate allegations of criminal misconduct in the public interest. (para. 45); And: In my view, this is not a case where a trial is required to resolve the duty of care issue. A duty of care has been excluded by prior decisions of this court, the British Columbia Court of Appeal and numerous trial courts. (para. 52) 422 Insofar as Mooney is concerned, it dealt not with the failure of the police to properly investigate the crime which caused the plaintiff’s injuries; rather it dealt with an investigative failure which arguably caused those injuries. It was a case like Jane Doe of a failure to deal with a specific threat to a specific individual or “a narrow and distinct group of potential victims” (Wellington para. 20). 423 Insofar as Odhavji Estate is concerned, it too is distinguishable from the case at bar. As Sharpe J.A. noted in Wellington, the claim in Odhavji was “for misfeasance in public office, a tort that requires an element of deliberate unlawful conduct as well as awareness that the conduct is unlawful and likely to harm the plaintiff”. Justice Sharpe placed significant reliance on the statement of Iacobucci J. who agreed with the proposition that “no individual has the right to a thorough, competent and credible investigation”, but noted the claim before the court in Odhavji was on a different footing. 424 Although the plaintiff has argued in the case at bar that Wellington is distinguishable because it was the family of a victim, rather than the victim, who was the plaintiff, it is significant that the suit was brought in part by the victim’s estate. In stating the issue, Sharpe J.A. identified the issue as “do victims of crime committed by police officers have the right to sue the SIU for negligent investigation?”. 158 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

425 The concept that there is a lack of proximity in the relationship between investigating police officers and the victims of the crime which is under investigation, which emerges from Wellington and the obiter of Iacobucci J. in Odhavji arises from the precept that the primary relationship in a criminal investigation is between the authority of the police and the individual under investigation. 426 It is clear from Hill v. Hamilton-Wentworth it is that relationship and the function which it embraces which is close and direct and engages the indicia of proximity. While that does not necessarily preclude other relationships of proximity from developing, those other relationships must be subject to the need to protect the primary relationship and function. 427 In the present case, it is not pleaded, and nor is there evidence that the failure of the police investigation caused or contributed to any of the injuries suffered by the plaintiff. The evidence presented is compendiously summarized in a report dated June 9, 2009 by Dr. Derek Smith, a psychi- atrist retained by the plaintiff to conduct an independent medical examination: Prior to the assault, the plaintiff was free of medical and psychiatric illness. It is therefore my opinion that all of the current problems are a direct result of the assault and subsequent brain injury of December 26, 2006. 428 The relationship at issue is thus not direct. It is not the impact of the asserted negligence on the plaintiff that is relied on as engaging liability but the impact on his opportunity or ability to seek damages from a third party. That was one of the heads of damage alleged in Wellington v. On- tario, supra, that the allegedly negligent investigation “lessened (the plaintiff’s) opportunity to recover damages in a civil suit.” In rejecting that relationship as proximate, Sharpe J.A. noted, in referring to the Cooper-Anns test: Policy reasons are relevant at both stages of the test. At the first stage, the policy reasons must arise from the nature of the relationship between the parties rather than any external concerns. 429 It was in that context that the court in Wellington ruled at para. 45: In my view, the SIU does not and should not conduct criminal investigations to advance the private interests of any individual citizen. I agree with the submission ... that there is an inherent tension between the public interest in an impartial and competent investigation and a private individual’s interest in a desired outcome of that same investigation which includes seeking to ground a civil action against the Burnett v. Moir A.F. Cullen J. 159

alleged perpetrator. To introduce a private law duty of care would in my view introduce an element seriously at odds with the fundamental role of the SIU to investigate allegations of criminal misconduct in the public interest. 430 The Wellington case, while not binding on me, is persuasive authority. Although it is concerned with the statutory mandate of the SIU in Ontario, there is in my view no basis to distinguish Wellington from the case at bar for that reason. The relevant provision of the Police Act, R.S.B.C. 1996, c. 367 is s. 34 which reads as follows: Duties and functions of chief constable and municipal police 34 (1) The chief constable of a municipal police department has, under the direction of the municipal police board, general supervision and command over the municipal police department and must perform the other functions and duties assigned to the chief constable under the regulations or under any Act. (2) The municipal police department, under the chief constable’s direction, must perform the duties and functions respecting the preservation of peace, the prevention of crime and offences against the law and the administration of justice assigned to it or generally to peace officers by the chief constable, under the regulations or under any Act. 431 In my view, the direction in the Police Act that the police “must perform the duties and functions respecting the preservation of peace, the prevention of crime and offences against the law and the administration of justice” emphasize the very public nature of the duty created, akin to that confronting the SIU. 432 The point made by Wellington v. Ontario, supra, and the cases which it relies on, is that a public duty by its nature excludes the indicia of a proximate relationship with individual or private interests, absent exceptional circumstances. In Hill v. Hamilton-Wentworth, supra, those exceptional circumstances were described as “critical personal interests” of a suspect whose “freedom ... reputation and how he may spend a good portion of his life” were put directly at stake by the investigator into the underlying “offences against the law and administration of justice.” 433 In relation to the plaintiff, however, the direct impact on his personal interest came from the underlying offence, not from the investigation into it. 160 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

434 The importance and scope of that distinction is emphasized in Hill v. Hamilton-Wentworth, supra, where the Chief Justice noted at para. 36 as follows: [36] The personal interest of the suspect in the conduct of the investigation is enhanced by a public interest. Recognizing an action for negligent police investigation may assist in responding to failures of the justice system such as wrongful convictions or institutional ra- cism. The unfortunate reality is that negligent policing has now been recognized as a significant contributing factor to wrongful convictions in Canada. While the vast majority of police officers perform their duties carefully and reasonably, the record shows that wrongful convictions traceable to faulty police investigations occur. Even one wrongful conviction is too many, and Canada has had more than one. Police conduct that is not malicious, not deliberate, but merely fails to comply with standards of reasonableness can be a significant cause of wrongful convictions. (See the Honourable Peter Cory, The In- quiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001), at p. 10 (“Cory Report”); the Right Honourable Antonio Lamer, The Lamer Commission of Inquiry into the Proceedings Pertaining to Ronald Dalton, Gregory Parsons and Randy Druken; Report and Annexes (2006), at p. 71; Federal/Provincial/Territorial Heads of Prosecutions Committee Working Group, Report on the Prevention of Miscar- riages of Justice (2004); the Honourable Fred Kaufman, The Com- mission on Proceedings Involving Guy Paul Morin: Report (1998), at pp. 25, 26, 30, 31, 34-36, 1095-96, 1098-99, 1101 and 1124). 435 It is clear from the judgment in Hill v. Hamilton-Wentworth that the relationship forged by the investigative function between a police officer and a suspect is both close and direct, implicates “critical” personal interests and engages a significant public interest in avoiding wrongful convictions. 436 By contrast, the relationship between an investigator and a victim, at least where the substantive harm has already been caused by a third party, is removed and indirect. Moreover, the asserted foundation for finding proximity - the negligent failure to facilitate a civil action against the perpetrator of the substantial harm - runs directly counter to the public interest in ensuring that public officials do not perform their duties and functions to serve private interests. 437 In this case, it is alleged that not enough was done in the immediate aftermath of the offence to identify witnesses and obtain information which may assist in determining who the assailant was. That assertion is Burnett v. Moir A.F. Cullen J. 161

somewhat speculative, as is the inference that a more comprehensive initial investigation would lead to a successful action or result in the recovery of damages. 438 The evidence does establish that over time, all potential witnesses were interviewed, all surveillance tapes were seized and reviewed, certain forensic tests were performed on the alleged weapon used, and information from the public was solicited through the Crime Stoppers program. The causal connection between the alleged negligence and harm to the plaintiff is tenuous. It assumes the presence of a forthright, willing and impartial witness who was overlooked. It also assumes that interviewing Jeremy Wocknitz or other Cheers staffers earlier, or acquiring the surveillance tapes earlier would have changed the course and result of the investigation. 439 Jeremy Wocknitz was the only witness who purported to be able to identify the assailant. The fact that at the time of the assault, despite knowing the police were investigating, he declined to come forward to provide any information casts doubt on his initial willingness to cooperate and the reliability of his identification two years later. That he appeared to confuse the assailant with Greg Allan as the one who was knocked down further compromises his reliability. That he subsequently recanted his evidence concerning “Ricky Guy” being the assailant and testified that he did not see what he originally represented to have seen, undermines him and marks his evidence as unreliable. 440 The other witnesses who were interviewed gave largely conflicting accounts of what occurred, and Greg Allan, who was likely in the best position to provide information as to what occurred was uncooperative and contradictory in his accounts of the events. 441 As earlier noted, in Odhavji Estate v. Woodhouse, supra, Justice Iacobucci held that a close causal connection was one of the factors relevant to the inquiry into proximity. 442 In my view, the lack of a close causal connection is thus an additional factor weighing against finding proximity in the present case. 443 As I see it, while there may be particular cases where the evidence justifies finding a proximate relationship between a police investigator and the victim of an offence being investigated, the circumstances would need to overcome both the inherently indirect nature of the relationship, and the critically important precept that criminal investigations do not serve private interests. 162 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

444 I conclude this is not such a case. While the import of the assault upon the plaintiff has been profound and devastating, as is clear from Wellington, supra, it is not the severity of the underlying harm that determines the issue of proximity. 445 This is not a case such as Mooney or Jane Doe where it is alleged the investigative negligence led to or failed to prevent the harm to the plaintiff. Nor is it a case such as Odhavji Estate where it is alleged there was a deliberate and unlawful attempt to thwart an investigation into the wrongdoing which led to the harm alleged. 446 In this case, the nexus between the alleged negligence and the harm is weak. Policy reasons intrinsic to the relationship between an investigator and a victim, unlike those between an investigator and a suspect, dictate against finding it to be close and direct in the sense contemplated by the proximity analysis. 447 For those reasons, both general to the relationship between an investigating officer and a victim, and specific to the circumstances to the case at bar, I conclude the evidence falls short of establishing the requisite proximity to found a duty of care in the relationship between the plaintiff and the Delta Defendants post assault. 448 I am thus I am unable to conclude that the plaintiff has met the burden of establishing liability against the Delta Defendants in this case and accordingly I dismiss the plaintiff’s action with costs to the defendants. Action dismissed. 9139-4429 Qu´ebec inc. c. Rosem`ere (Ville) 163

[Indexed as: 9139-4429 Québec inc. c. Rosemère (Ville)] 9139-4429 Québec inc., Demanderesse c. Ville de Rosemère, Défenderesse Cour supérieure du Québec Docket: C.S. Terrebonne 700-17-006795-107 Danielle Turcotte, J.C.S Heard: 8 septembre 2011 Judgment: 19 septembre 2011* Droit municipal –––– Conseil municipal — Maire ou préfet — Pouvoirs et devoirs — Divers –––– Promoteur immobilier a vu une occasion de construire un projet sur un terrain situé dans une municipalité — Cette occasion s’est apparemment evanouie´ a` la suite d’une election´ au cours de laquelle un nouveau maire a et´´ e elu´ — Promoteur immobilier a déposé une action en dommages-in- térêts a` l’encontre de la municipalité — Comme il voulait interroger les deux maires, le promoteur immobilier leur a envoyé des subpoenas — Municipalité a déposé une requête en cassation des subpoenas — Requête rejetée — Article 398 du Code de procédure civile prévoit qu’une partie peut assigner a` comparaˆı- tre toute autre partie, son représentant, agent ou employé ou, avec la permission du tribunal, toute autre personne — En l’espèce, le Tribunal a rejeté la préten- tion de la municipalité selon laquelle le maire n’était pas un représentant de la municipalité parce qu’il n’avait pas le pouvoir d’engager celle-ci — Tribunal etait´ d’avis qu’en utilisant les mots « représentant, agent ou employé », le légis- lateur n’avait pas l’intention d’exiger que la personne que l’on souhaite interroger ait le pouvoir d’engager la partie — Par conséquent, la permission du Tri- bunal n’était pas exigée. Preuve –––– Temoins ´ — Capacité a` témoigner et contraignabilité — Di- vers –––– Promoteur immobilier a vu une occasion de construire un projet sur un terrain situé dans une municipalité — Cette occasion s’est apparemment eva-´ nouie a` la suite d’une election´ au cours de laquelle un nouveau maire a et´´ e elu´ — Promoteur immobilier a déposé une action en dommages-intérêts a` l’encontre de la municipalité — Comme il voulait interroger les deux maires, le promoteur immobilier leur a envoyé des subpoenas — Municipalité a déposé une requête en cassation des subpoenas — Requête rejetée — Tribunal a rejeté la prétention de la municipalité selon laquelle il n’était pas nécessaire d’interroger les maires puisque le promoteur immobilier avait déjà interrogé

*Un rectificatif publié par la Cour 10 novembre 2011 a et´´ e reproduit ici. 164 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th) quatre témoins — Tribunal etait´ d’avis que les quatre témoins n’avaient pas réussi a` jeter un eclairage´ suffisant sur la présente affaire pour que le promoteur immobilier puisse préparer sa cause adéquatement — Tribunal a conclu, compte tenu des circonstances, qu’il ne s’agissait pas d’un abus de procédure — De plus, le Tribunal a rappelé a` la municipalité qu’elle pourrait toujours soulever des objections — Par conséquent, le Tribunal a conclu que les droits de la municipalité n’étaient pas en danger. Municipal law –––– Municipal council — Mayor or reeve — Powers and duties — Miscellaneous –––– Real estate developer saw opportunity to build project on land located in municipality — That opportunity was allegedly lost following municipal election in which new mayor was elected — Real estate developer introduced action seeking damages against municipality — As he wanted to examine both mayors, real estate developer sent them subpoenas — Municipality brought motion to quash subpoenas — Motion dismissed — Arti- cle 398 of Code of Civil Procedure provides that any party may summon to be examined any other party, or his representative, agent or employee or, with permission of court, any other person — Here, Court did not accept municipality’s argument that mayor was not representative of municipality because mayor did not have power to bind municipality — Court was of view that by using words “representative, agent or employee”, legislature did not require that person to be examined should have power to bind party — Therefore, permission from Court was not required. Evidence –––– Witnesses — Competence and compellability — Miscellane- ous –––– Real estate developer saw opportunity to build project on land located in municipality — That opportunity was allegedly lost following municipal election in which new mayor was elected — Real estate developer introduced action seeking damages against municipality — As he wanted to examine both mayors, real estate developer sent them subpoenas — Municipality brought motion to quash subpoenas — Motion dismissed — Court did not accept municipality’s argument that it was unnecessary to examine mayors, as real estate developer had already examined four witnesses — Court was of view that four witnesses had been unable to shed sufficient light on matter to allow real estate developer to properly prepare his case — Court found that, given circumstances, this was not abuse of process — Further, Court reminded municipality that it still could raise objections — Therefore, Court concluded that municipality’s rights were not in jeopardy. Statutes considered: Code de procédure civile, L.R.Q., c. C-25 art. 165 al. 1 — referred to art. 165 al. 3 — referred to art. 165 al. 4 — referred to 9139-4429 Québec inc. c. Rosemère (Ville) Danielle Turcotte, J.C.S. 165

art. 398 — referred to

REQUETEˆ de la municipalit´e s’opposant a` ce que le promoteur immobilier in- terroge ses maires.

Me Sylvain B´elair, pour la demanderesse Me Paul Wayland, pour la d´efenderesse

Danielle Turcotte, J.C.S.: Introduction 1 Un promoteur immobilier soutient qu’une municipalité lui a fait miroiter une expectative légitime et raisonnable de développement de ses terrains. 2 Le projet en question, peut-être l’objet d’un enjeu electoral,´ est laissé pour compte a` la suite d’un changement de garde au sein des elus´ municipaux. 3 Le promoteur intente un recours en dommages contre la ville. Celle-ci a déposé une défense. Le promoteur souhaite interroger les mairesses en poste au moment des ev´´ enements en litige. 4 La ville présente deux requêtes en cassation de subpoenas. Selon elle, le maire est un tiers par rapport a` la ville et, conséquemment, la permission du Tribunal est requise. 5 En deuxième lieu, quel que soit le statut du maire, le Tribunal devrait restreindre le droit d’interroger puisque le promoteur a déjà eu ample- ment l’occasion de le faire.

Questions en Litige 6 Quel est le statut du maire d’une municipalité au sens de l’article 398 du Code de procédure civile ? 7 Nonobstant la réponse a` la première question, le droit d’interroger devrait-il etreˆ refusé ou restreint, compte tenu que d’autres individus ont déjà et´´ e interrogés ? 166 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

L’Analyse 1. Le statut du maire au sens de l’article 398 C.p.c. 8 L’article 398 C.p.c. stipule qu’une partie peut etreˆ interrogée après défense. Il expose aussi le cas où une permission est requise : Après production de la défense, une partie peut, après avis de 2 jours aux procureurs des autres parties, assigner a` comparaˆıtre devant le juge ou le greffier, pour y etreˆ interrogé sur tous les faits se rapportant au litige ou pour donner communication et laisser prendre copie de tout ecrit´ se rapportant au litige : 1. toute autre partie, son représentant, agent ou employé; 2. toute personne mentionnée aux paragraphes 2 et 3 de l’article 397; 3. avec la permission du tribunal et aux conditions qu’il déter- mine, toute autre personne. Le défendeur ne peut cependant, sans l’autorisation du juge ou dans le cas visé au paragraphe 3 du premier alinéa, du tribunal, interroger en vertu du présent article une personne qu’il a déjà interrogée en vertu de l’article 307. (nos soulignements) 9 Dans leur ouvrage, Droit municipal, principes généraux et conten- tieux1, les auteurs Hétu et Duplessis semblent etreˆ d’opinion que le maire est un représentant de la municipalité : Les pouvoirs mentionnés plus haut ne sont pas les seuls que la loi attribue au maire mais ils suffisent, a` notre avis, a` démontrer le rôle excessivement important que joue cette personne au sein de l’administration municipale. Tout en etant´ le principal porte-parole ou représentant de sa municipalité, le maire n’est ni un fonctionnaire (art. 6 (4) (12) L.C.V.; art. 25 (10) C.M.) ni un préposé de la corporation municipale. Il occupe une charge municipale [...] Il est le chef exécutif de l’administration municipale qui répond directement a` la population de ses faits et gestes. 10 Néanmoins, la ville plaide que c’est le troisième alinéa de l’article 398 C.p.c. qui doit recevoir application. 11 Elle avance qu’un représentant a le pouvoir de lier la partie qui le mandate.

1Jean HETU´ et Yvon DUPLESSIS, Droit municipal, principes généraux et contentieux, Hébert Denault, Montréal, 1998, p.137. 9139-4429 Québec inc. c. Rosemère (Ville) Danielle Turcotte, J.C.S. 167

12 Sur ce point, la définition proposée par Gérard Cornu lui donne raison2 : Représentant 1. Celui qui fait valoir les intérêts (privés) d’une autre personne physique ou morale. a/ (sens technique). Celui qui agit par représentation, au nom, a` la place et pour le compte du représenté (avec le pouvoir de l’obliger), en vertu d’un pouvoir conféré par la convention (représentant conventionnel), par une décision de justice (représentant judiciaire) ou par la loi (représentant légal). V. mandataire, administrateur, séquestre, tuteur, gérant, conseil. • de société. Mandataire social ayant pouvoir d’engager la personne morale a` l’égard des tiers. Ex. le gérant d’une société a` responsabilité limitée, d’une société en nom collectif, le prési- dent-directeur général d’une société anonyme. V. signature, fondé de pouvoir. [...] (nos soulignements) 13 Or, seul le conseil de ville détient le pouvoir d’obliger la ville. En effet, l’article 47 de la Loi sur les cités et villes3 stipule que : [47] La municipalité est représentée et ses affaires sont adminis- trées par son conseil. (nos soulignements) 14 Il apparaˆıt exact que le maire n’est peut-être pas un représentant dans tous les sens du terme. 15 Toutefois, le premier alinéa de l’article 398 C.p.c. enum`´ ere divers statuts dont celui d’agent, que Gérard Cornu4 définit comme suit : Agent a/ En général, toute personne au service d’une administration publique; en ce sens, les agents s’opposent aux gouvernants, qui ont seuls la qualité de représentant; le mot peut etreˆ utilisé accompagné de l’indication soit du type de fonction exercés (ex. agent d’autorité participant a` l’exercice de la puissance publique et emettant´ des actes d’autorité, agents de gestion) soit du type d’organisation administrative dont relève l’agent (ex. agent décentralisé par référence a` la

2Gérard CORNU (dir.), Vocabulaire juridique, 1ere` ed.,´ Paris, P.U.F., 1987, p. 807. 3L.R.Q. c. C-19. 4Précité, note 2, p. 40. 168 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

décentralisation; agent déconcentré par référence a` la déconcentration). [...] • de l’autorité publique. Qualité exclusivement reconnue a` celui qui accomplit une mission d’intérêt général en exer¸cant des prérogatives de puissance publique (par ex. en vertu d’une délégation de compétence ou de signature), 1. 29 juill. 1881, a. 31 V. dépositaire, citoyen. • de la force publique. Agent de l’autorité publique ayant pour mission de contraindre par la force a` l’observation des lois et règlements et au respect de l’ordre et d’exécuter les ordres des autorités administratives et judiciaires. (1/ Les agents civils, ou agents de la force publique proprement dite qui sont a` la disposition des autorités civiles compétentes. [...] (nos soulignements) 16 En fait, on constate des similitudes importantes entre le rôle du maire, tel qu’exposé a` l’article 52 de la Loi5, et le paragraphe qui précède : [52] Le maire exerce le droit de surveillance, d’investigation et de contrôle sur tous les départements et les fonctionnaires ou employés de la municipalité, et voit spécialementa ` ce que les revenus de la municipalité soient per¸cus et dépenses suivant la loi, et a` ce que les dispositions de la loi, les règlements et les ordonnances du conseil soient fidèlement et impartiale- ment mis a` exécution. Il soumet au conseil tout projet qu’il croit nécessaire ou utile, et lui communique toutes informa- tions et suggestions relatives a` l’amélioration des finances, de la police, de la santé, de la sûreté, de la propreté, au bien-être et au progrès de la municipalité. Dans l’exercice de ses fonctions comme chef exécutif de l’administration municipale, le maire a droit, en tout temps, de suspendre un fonctionnaire ou employé de la municipalité, mais il doit faire rapport au conseil, a` la séance qui suit cette suspension, et exposer ses motifs par ecrit;´ le fonctionnaire ou employé suspendu ne doit recevoir aucun traitement pour la période pendant laquelle il est suspendu, a` moins que le conseil n’en décide autrement sur cette suspension et celle-ci n’est valide que jusqu’à cette séance. (nos soulignements)

5Précité, note 3. 9139-4429 Québec inc. c. Rosemère (Ville) Danielle Turcotte, J.C.S. 169

17 On réalise aussi que les termes représentant et agent ont des sens dif- férents. Le premier a une corrélation de mandataire, alors que ce n’est pas le cas du second. 18 En utilisant les mots « représentant, agent ou employé » a` l’article 398 C.p.c., le législateur n’exige pas que la personne interrogée possède nécessairement l’autorité d’engager la partie. 19 Compte tenu de ce qui précède, le Tribunal en conclut que le maire est visé par le premier alinéa de l’article 398 C.p.c. et conséquemment, aucune permission n’est requise pour procéder a` l’interrogatoire.

2. Les restrictions au droit d’interroger 20 Nonobstant la réponse a` la première question, la ville est d’opinion que le Tribunal devrait tout de même intervenir et mettre un frein au droit du promoteur. Elle soutient que quatre personnes ont déjà subi un interrogatoire et que cela est suffisant pour que le promoteur soit prêt a` procéder. 21 De son côté, le promoteur avance que les personnes interrogées n’ont pas et´´ e en mesure de lui fournir les réponses complètes aux questions posées. 22 Ses motifs sont bien exposés a` son plan d’argumentation. En résumé, les quatre personnes interrogées n’ont pu apporter un eclairage´ suffisant lui procurant une préparation adéquate : le greffier a une connaissance limitée de la mise en veilleuse du projet de développement; la directrice générale, ecart´´ ee par la nouvelle administration municipale de toute discussion entourant le projet, ne connaˆıt pas la suite du dossier; un des urbanistes a quitté son poste avant les ev´´ enements, alors que l’autre est parti en mauvais termes et n’a qu’un souvenir imprécis des faits en litige. 23 Il est indéniable qu’en pareille circonstance, il ne semble pas y avoir abus du processus. 24 Par ailleurs, le Tribunal est confiant que le professionnalisme du procureur du promoteur est une garantie suffisante que les interrogatoires seront tenus dans le respect des règles sans qu’il faille le baliser davantage. 25 De toute manière, le droit a` l’objection demeure et grâce a` la vigilance du procureur de la ville, dont le Tribunal ne saurait douter, les droits de cette dernière seront bien protégés. 170 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

POUR CES MOTIFS, LE TRIBUNAL : 26 REJETTE les requêtes en cassation de subpoenas; 27 DECLARE´ sans objet la requête de bene esse pour permission d’interroger; 28 LE TOUT, avec dépens. Requête rejetée. Parker, Re 171

[Indexed as: Parker, Re] In the Matter of subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: David Parker Appellant: Robert Schwenger Applicant: Doyle Homes Ltd. Subject: Consent Property Address/Description: 22, (22A & 22B) Jonathan Pack Street Municipality: City of Ottawa Municipal File No.: D08-01-1010B/00179 OMB Case No.: PL110374 OMB File No.: PL110374 Ontario Municipal Board Docket: PL110374 M.C. Denhez Member Decision: August 3, 2011 Municipal law –––– Planning appeal boards and tribunals — Jurisdiction — Miscellaneous –––– Applicants proposed to split their lot into two lots — Pro- posed contractor applied for severance on their behalf — Committee of Adjust- ment (COA) authorized necessary variances for lot width — Two neighbours P and S appealed to Ontario Municipal Board — Applicants brought motion to dismiss appeals without hearing, saying notices of appeal disclosed no apparent land use planning ground upon which all or part of appeal could be allowed — Motion to dismiss granted — P withdrew his appeal — S was unable to attend and another neighbour was given every opportunity to outline thrust of his case — Dispute should not proceed to further hearing — Consent for severance may be turned down if it fails to meet statutory criteria outlined in Planning Act — Criterion is not merely whether appeal discloses “any apparent land use planning ground”, but also whether that planning ground is one on which “Board could allow all or part of the appeal” — There was no actual evidence that S was preparing “defendable” case on planning merits — Present proceedings did not compromise S’s legal rights on integrity of his property, pertaining to runoff and drainage — Provisional consent granted — Variances authorized in accordance with decision of COA. 172 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

Municipal law –––– Subdivision control — Severance of land — Consent to sever — Miscellaneous –––– Applicants proposed to split their lot into two lots — Proposed contractor applied for severance on their behalf — Committee of Adjustment (COA) authorized necessary variances for lot width — Two neighbours P and S appealed to Ontario Municipal Board — Applicants brought motion to dismiss appeals without hearing, saying notices of appeal disclosed no apparent land use planning ground upon which all or part of appeal could be allowed — Motion to dismiss granted — P withdrew his appeal — S was unable to attend and another neighbour was given every opportunity to outline thrust of his case — Dispute should not proceed to further hearing — Consent for severance may be turned down if it fails to meet statutory criteria outlined in Planning Act — Criterion is not merely whether appeal discloses “any apparent land use planning ground”, but also whether that planning ground is one on which “Board could allow all or part of the appeal” — There was no actual evidence that S was preparing “defendable” case on planning merits — Present proceedings did not compromise S’s legal rights on integrity of his property, pertaining to runoff and drainage — Provisional consent granted — Variances authorized in accordance with decision of COA. Cases considered by M.C. Denhez Member: Lee v. Waterloo (City) (2005), 2005 CarswellOnt 6980, (sub nom. Waterloo (City) Zoning By-law 05-129) 52 O.M.B.R. 119 (O.M.B.) — considered Rylands v. Fletcher (1868), [1861-73] All E.R. Rep. 1 at 12, 37 L.J. Exch. 161, 19 L.T. 220, 33 J.P. 70, L.R. 3 H.L. 330, [1868] UKHL 1 (U.K. H.L.) — considered Statutes considered: Planning Act, R.S.O. 1990, c. P.13 Generally — referred to s. 45(17) — considered s. 51(24) — referred to s. 53(31) — considered s. 53(31)(a)(i) — considered

MOTION to dismiss appeal from decision of Committee of Adjustment granting variance.

Paul Webber, for Tarek and Jennifer Hassani, Alex Markell No one for Robert Schwenger

M.C. Denhez Member:

1 This Motion to Dismiss arises from a dispute over a proposed severance. Tarek Hassani, Jennifer Hassani and Alex Markell (the Applicants) Parker, Re M.C. Denhez Member 173

proposed to split their lot in the Stittsville area of the City of Ottawa (the City) into two lots, of 15 m (49.2 feet) and 15.44 metres (50.7 feet). Their proposed contractor, Doyle Homes Ltd., filed an application for a severance on their behalf, with proposed variances for lot width (the Zoning By-law calls for lot width of 20 metres). 2 City planning staff had no objection. On March 24, 2011, the Com- mittee of Adjustment (COA) authorized the width variances, and granted consent to the severance, subject to various conditions. Two neighbours, David Parker and Robert Schwenger (Appellants), each filed appeals to the Board, dated April 13, 2011. 3 On the Board’s “Appellant Form A1”, in response to the question of what witnesses would be called, each Appellant inscribed the same answer: None. Written submissions only. 4 On the same Form, in response to the question about “the nature of your appeal and the reasons”, Mr. Parker referred only to stormwater/flooding. Mr. Schwenger referred to the same, plus two other points: • The proposed construction of another house immediately be- side my property would be completely out of character with the very established neighbourhood. • It would be dissimilar to every other house due to its size and location. 5 On June 7, 2011, the Applicants responded with this Motion to Dis- miss the appeals without a hearing, saying the Notices of Appeal disclosed no apparent land use planning ground upon which the Board could allow all or part of the appeal. 6 On the morning of the Motion, the Board was told that Mr. Parker had withdrawn his appeal. Mr. Schwenger, for his part, was apparently unable to attend and another neighbour, Ms Mary Herbert, asked to speak on his behalf. Counsel for the Applicants objected on the grounds that proper authorization did not exist; the Board took that objection under advisement, and as matters turned out, it was not determinative. 7 The Board has carefully considered all the Affidavit evidence, as well as the able arguments of both sides. In particular, the Board gave every opportunity to Ms Herbert to outline the thrust of Mr. Schwenger’s case. Ms Herbert emphasized that Mr. Schwenger looked forward to the opportunity of having his say. 174 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

8 Despite the lucidity of Ms Herbert’s arguments, the Board finds that this dispute should not proceed to a further hearing. The Motion should be granted — not because the questions raised by Mr. Schwenger are un- important, but because there was no evidence of preparation. His position was hence not one “upon which the Board could allow all or part of the appeal”. He is not, however, left entirely empty-handed, in that the Board duly notes that on the subject of stormwater, he has legal rights which are already acknowledged/protected elsewhere in the legal system. The details and reasons are set out below. 9 In variance matters, Subsection 45(17) of the Planning Act states: ...The Municipal Board may dismiss all or part of an appeal without holding a hearing... if, (a) it is of the opinion that, (i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all or part of the appeal.... In severance matters, Subsection 53(31) similarly provides: ...The Municipal Board may dismiss an appeal without holding a hearing... if, (a) it is of the opinion that, (i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could give or refuse to give the provisional consent.... The above makes it clear that the statutory criterion: • is not merely whether the appeal discloses “any apparent land use planning ground”, but also • Whether that planning ground is one “upon which the Board could allow all or part of the appeal”. 10 The Planning Act and the Provincial Policy Statement call Ontario’s process for land use planning a “policy-led” system. It is not discretionary. Board hearings are based on evidence of policy direction. Consent for a severance may be turned down if it fails to meet statutory criteria; those are clearly outlined in the Planning Act, notably at Section 51(24), and since these include conformity to the City’s Official Plan (OP), sev- erances must comply with it too. Parker, Re M.C. Denhez Member 175

11 So there are indeed specific criteria. Indeed, the OP includes several important provisions about neighbourhood “character”. Those provisions are not to be taken lightly; but if the appeal process is to be used to in- voke them, it should be done methodically. With all possible sympathy to the neighbours, the general purpose of litigation is not merely to vent; it is to succeed. 12 In Lee v. Waterloo (City) (2005), 52 O.M.B.R. 119 (O.M.B.), the Board added this: When embarking on an appeal, one must make time to understand the rules and obligations of a very serious matter involving very serious implications. There is a responsibility for readiness not to be left to the last minute. On a motion to dismiss, the Board must be satisfied that the reasons for appeal are fleshed out and are defendable.... The Board finds that the state of readiness of the appellant, more than two months following from her notice of appeal, is inadequate. 13 This case is no different. If there had been any actual evidence that Mr. Schwenger was preparing a “defendable” case on the planning merits, with due diligence — whether based on the OP or other relevant policies — then matters might have been different. In this case, however, the problem is that Mr. Schwenger gave absolutely no indication that any such evidence was likely to materialize in the foreseeable future, including at any hearing on the merits. 14 To be clear: an appeal without visible evidence — or any apparent means of gathering same — is not likely to be one “on which the Board could allow all or part of the appeal”. The Board would be doing Mr. Schwenger no favours, in scheduling such a hearing on the merits. 15 The Board is, however, prepared to acknowledge the following: a) The COA’s Condition 4 to the severance addresses drainage at length. For good measure, neither the Board, nor its proceedings, nor the Zoning By-law, exempts Parties from the law of nuisance. It remains incumbent on the Applicants to manage their affairs to avoid same. b) Specifically as for runoff (including nuisance and the like), the case of Rylands v. Fletcher, [1868] UKHL 1 (U.K. H.L.), held that when water escapes from “property A” to “property B”, the owner of “property A” is responsible for damages. That remains un- changed. Nothing in these proceedings, nor in a Zoning By-law, authorizes the Applicants to discharge water onto Mr. Schwenger’s property in a way that damages the latter, nor do 176 MUNICIPAL & PLANNING LAW REPORTS 90 M.P.L.R. (4th)

these proceedings relieve the Applicants of any liability which might result. c) Similarly, the Board does not interfere with the Ontario Building Code (OBC), including its provisions on runoff and drainage. Nothing in these proceedings, or in a Zoning By-law, authorizes the Applicants to digress from the OBC on that account, or any other. 16 Mr. Schwenger can therefore take comfort that these proceedings do not compromise his legal rights on the integrity of his property, pertaining to runoff and drainage. Those rights remain intact and enforceable in a court of law. However, if his appeal was intended to sustain those rights in principle, then to that extent, the appeal was redundant. Those concerns - however understandable - are outside the realm of grounds “upon which the Board could allow all or part of the appeal”. 17 This dispute will therefore not proceed to a further hearing. 18 THE BOARD ORDERS that the Motion to Dismiss the appeal, and dispense with a hearing, is granted. The provisional consent is to be granted, and the variances authorized, in accordance with the Decision of the Committee of Adjustment. 19 It is so Ordered. Motion granted.