NOTICE OF CIVIL CLAIM

Transcription

1 tfo. Vancouver Registry In the Supreme Court of British Columbia Between and ANN WEST, JOHN LAWRENCE, JOHN MCINTOSH, CANDACE MCINTOSH, STEPHANIE MARY YORATH and JAVA SEA INVESTMENTS INC. HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, REPRESENTED BY THE MINISTER OF AGRICULTURE AND LANDS and POWELL RIVER REGIONAL DISTRICT NOTICE OF CIVIL CLAIM Plaintiffs Defendants This action has been started by the Plaintiffs for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must (a) (b) file a Response to Civil Claim in Form 2 in the above-named registry of this Court within the time for Response to Civil Claim described below, and serve a copy of the filed Response to Civil Claim on the Plaintiffs. If you intend to make a counterclaim, you or your lawyer must (a) (b) file a Response to Civil Claim in Form 2 and a Counterclaim in Form 3 in the above-named registry of this Court within the time for Response to Civil Claim described below, and serve a copy of the filed Response to Civil Claim and Counterclaim on the Plaintiffs and on any new parties named in the Counterclaim. JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the Response to Civil Claim within the time for Response to Civil Claim described below.

2 2 Time for response to civil claim A Response to Civil Claim must be filed and served on the Plaintiffs, (a) (b) (c) (d) if you reside anywhere in Canada, within 21 days after the date on which a copy of the filed notice of civil claim was served on you, if you reside in the United States of America, within 35 days after the date on which a copy of the filed notice of civil claim was served on you, if you reside elsewhere, within 49 days after the date on which a copy of the filed notice of civil claim was served on you, or if the time for response to civil claim has been set by Order of the Court, within that time. Part 1: STATEMENT OF FACTS The Plaintiffs 1. The Plaintiff, Ann West, is an individual with an address for service of Georgia Street, Vancouver, British Columbia. West 2. At all material times to these proceedings, Ann West was the registered owner in fee simple of the following property located at 3014 Malaspina Promenade, Savary Island, British Columbia: Parcel Identifier: Legal Description: Lot 13, Block 8, Plan 2732, District Lot 1372 Group 1, New Westminster Land District 3. Ann West and her family use this property as a residential/recreational property. 4. The Plaintiff, John Lawrence, is an individual with an address for service of West Georgia Street, Vancouver, British Columbia. 5. At all material times to these proceedings, John Lawrence was the registered owner in fee simple of the following property located at 3130 Malaspina Promenade, Savary Island, British Columbia:

3 3 Parcel Identifier: Legal Description: Lot 24, Block 2, Plan 2732, District Lot 1372 Group 1, New Westminster Land District 6. John Lawrence and his family use this property as a residential/recreational property. 7. The Plaintiffs, John Mcintosh and Candace Mcintosh (the Mclntoshes ), are individuals with an address for service of West Georgia Street, Vancouver, British Columbia. 8. At all material times to these proceedings, the Mcintoshes were the registered owners in fee simple of the following property located at 3120 Sherman Walk, Savary Island, British Columbia: Parcel Identifier: Legal Description: Lot 20, Block 7, Plan 2732, District Lot 1372 Group 1, New Westminster Land District 9. The McI ntoshes and their family use this property as a residential/recreational property. 10. The Plaintiff, Stephanie Mary Yorath, is an individual with an address for service of West Georgia Street, Vancouver, British Columbia. 11. At all material times to these proceedings, Stephanie Mary Yorath, was the registered owner in fee simple of the following property located at 3064 Malaspina Promenade, Savary island, British Columbia: Parcel Identifier: Legal Description: Lot 5, Block 7, Plan 2732, District Lot 1372 Group 1, New Westminster Land District 12. Stephanie Mary Yorath and her family use this property as a residential/recreational property. 13. The Plaintiff, Java Sea Investments Inc., is a company incorporated under the laws of the Province of British Columbia with an address for service of Cambie Street, Vancouver, British Columbia.

4 4 14. At all materials times to these proceedings, Java Sea Investments Inc. was the registered owner in fee simple of the following properties on Savary Island, British Columbia located at 3134, 3140 and 3146 Malaspina Promenade respectively: (i) Parcel Identifier: Legal Description: Lot 23, Block 2, Plan 2732, District Lot 1372 Group 1, New Westminster Land District (ii) Parcel Identifier: Legal Description: Parcel B, Block 2, Plan 2732, District Lot 1372, Group 1, New Westminster Land District, BEING A CONSODATION OF LOTS 3,4,21 & 222 (iii) Parcel Identifier: Legal Description: Parcel A, Block 2, Plan 2732, District Lot 1372, Group 1, New Westminster Land District, BEING A CONSODATION OF LOTS 5 & Java Sea Investments Inc., uses the properties located at 3140 and 3146 Malaspina Promenade as residential/recreational properties. The property located at 3134 Malaspina Promenade is a vacant lot. 16. Ann West, Stephanie Mary Yorath, John Lawrence, John Mcintosh, Candace Mcintosh and Java Sea Investments Inc. are together referred to herein as the Plaintiffs. The seven properties owned by the Plaintiffs, as referenced in paragraphs 2, 5, 8, 11 and 14 of this Notice of Civil Claim, are together referred to herein as the Properties. The Defendants 17. The Defendant, Her Majesty the Queen in Right of the Province of British Columbia, represented by the Minister of Agriculture and Lands (the Province ), has an address for service of P.O. BOX 9044 Stn. Provincial Government, Victoria, British Columbia. 18. The Defendant, Powell River Regional District (the Regional District ), is a regional district incorporated under the Local Government Act, R.S.B.C. 1996, c. 323 and has an address for service of 5776 Marine Avenue, Powell River, British Columbia.

5 5 Savarv Island 19. Savary Island is located in the Strait of Georgia, northwest of Powell River and six kilometres offshore from the Village of Lund on the Sunshine Coast of British Columbia. It is part of the Regional District. The Barge Service 20. There is a barge service to Savary Island (the Barge Service ) that is operated by a number of entities and lands at the intersection of Malaspina Promenade and Sherman Walk on Savary Island (the Barge Landing Site ). 21. The Barge Service began operating in the early 1990 s, unlicensed and unregulated, as a way of transporting building supplies, bulk fuel, service vehicles and other heavy items from the Village of Lund to Savary Island. The Barge Service continued to operate in this way until October 4, 2005, when the Province issued License of Occupation No (the License ) to the Regional District, permitting it to use and occupy the Barge Landing Site. The License has remained in effect since it was issued in 2005, and remains in effect as of the date of this Notice of Civil Claim. 22. Since the License was issued to the Regional District, as set out in paragraph 21, the Barge Service has been operated in breach of the License, particulars of which include the following: (a) The Barge Service regularly transports all manner of goods including building supplies, bulk fuel, service vehicles, recreational vehicles and the personal belongings of passengers. (b) The Barge Service regularly transports large numbers of passengers. (c) There have been no restrictions placed on the months, days and hours of operation of the Barge Service and, at times, the Barge Service operates seven days per week from 7:00 A.M. until dusk. (d) Cars, boats and other materials are stored at or near the Barge Landing Site throughout the year. (e) The Barge Landing Site is used for the launching of private recreational vessels.

6 6 (f) The Regional District has not imposed a landing fee on any of the barge landings. The License 23. Articles 4.1 of the License provides that the Regional District must, inter alia: (c) observe, abide by and comply with: (i) all applicable laws, bylaws, orders, directions, ordinances and regulations of any government authority having jurisdiction in any way affecting [its] use or occupation of the [Barge Landing Site], and (ii) the provisions of [the License]; (e) not commit any wilful or voluntary waste, spoil or destruction on the [Barge Landing Site] or do anything on the [Barge Landing Site] that may be or become a nuisance or annoyance to an owner or occupier of land in the vicinity of the [Barge Landing Site]; and (p) adhere to the Management Plan dated June 16, 2005 held on file by [the Province]; 24. Article 4.2 of the License provides that the Regional District must not permit any person to do anything that it is restricted from doing under Article Article 11.3 of the License states as follows: The grant of a sublicence, assignment or transfer of [the License] does not release [the Regional District] from [its] obligation to observe and perform all the provisions of [the License] on [its] part to be observed and performed unless [the Province] specifically releases [it] from such obligation in [the Province s] consent to the sublicense, assignment or transfer of [the License]. The Management Plan 26. The License refers to a Management Plan held on file by the Province. This Management Plan requires the Regional District, amongst other things, to take specified steps to alleviate the impact of the Barge Service on upland property owners, which would include each of the Plaintiffs.

7 7 The Sublicense 27. Sometime after issuing the License to the Regional District, the Province gave written consent to the Regional District to issue a sublicense to each of a number of entities to operate the Barge Service at the Barge Landing Site (the Sublicense ). 28. The Plaintiffs have not seen or reviewed the Sublicense, however, the Plaintiffs have previously been provided with a draft of said Sublicense (the Draft Sublicense ). 29. Article 4 of the Draft Sublicense reads as follows: The Barge Operator will use the [Barge Landing Site] solely for barge landing purposes specifically for egress and ingress to and from Savary Island and transporting people, material (including dangerous goods) and equipment (including vehicles) to and from Savary Island. 30. Article 6 of the Draft Sublicense provides that the Barge Operator acknowledges having received and read a copy of the License and covenants and agrees with the Regional District, inter alia: (a) (b) (c) to be bound by the terms of the [License]; to perform all of its obligations under the [Sublicense]; not to do or omit to do any act in or around the [Barge Landing Site] which would cause a breach of the Regional Districts obligations as Barge Operator under the [License]; (f) to operate in a manner which will keep the [Barge Landing Site] in a clean and sanitary condition; (g) not to do anything on the [Barge Landing Site] that may become a nuisance or annoyance to an owner or occupier of land in the vicinity of the [Barge Landing Site], except as may be reasonably required in the operation of the [Barge Service]; (h) to carry on and conduct its activities on the [Barge Landing Site] in compliance with any and all statutes, enactments, bylaws, regulations and orders from time to time in

8 8 force and to obtain the required approvals and permits thereunder and not to do or omit to do anything upon or from the [Barge Landing Site] in contravention thereof. 31. Article 7 of the Draft Sublicense provides as follows: The Barge Operator shall not store any goods, including vehicles, on the [Barge Landing Site] and shall advise customers to deliver or pick up goods specifically at the time of the scheduled arrival or departure of the barge. 32. Article 10 of the Draft Sublicense states as follows: The Barge Operator shall use the [Barge Landing Site] in accordance with all rules posted at the site and with such other reasonable rules and regulations as the Regional District may establish from time to time. 33. Article 11 of the Draft Sublicense provides as follows: The Barge Operator shall prepare Operation Plans setting out procedures to be followed to mitigate the impacts of the use and to ensure its compliance with the covenants under Article 6. The Official Community Plan 34. On February 22, 2007 the Regional District adopted the Savary Island Official Community Plan (the OCP ) as Bylaw No, 403. The OCP sets out a vision as to how the Savary Island community wishes to evolve in the future. The stated purpose of the OCP is to provide direction to government agencies, businesses and private landowners concerning future land use and the provision of services. The principal aim of the OCP is to maintain Savary Island s unique character and rustic island lifestyle while protecting the island s groundwater resources, its sensitive ecosystems and its unique biophysical characteristics. 35. Section 2 of the OCP is concerned with environmental, marine and heritage resources. Section 2.2, which deals exclusively with marine resources, states that the marine foreshore is fragile and highly vulnerable to the effects of inappropriate upland development and foreshore intrusions. It notes that nearshore habitat may be physically impacted or disrupted by increased boat use and moorage. 36. Section 2.2. lists the following four objectives:

9 To recognize the importance of the marine and foreshore environment to the quality of life on Savary Island and protect these features from detrimental use and the negative impacts of development To protect the natural and scenic values of the coastline which provide the Island with its rural marine character To minimize the impact of foreshore uses on upland property owners and vice versa To limit human interference with the drift sector movement of sediment along the foreshore. 37. Section 2.2. also lists four policies. Theseinclude, amongst other things: 2.2.c 2.2.d The Savary wharf and, if appropriate, the [Barge Landing Site], will be zoned marine transportation. No buildings or structures except for those facilities required to facilitate marine transportation shall be permitted. The Regional District, should evaluate the range of options available to accommodate increased boat presence and use in the foreshore water off Savary. 38. Section 6 of the OCP is concerned with transportation planning. Section 6.1, which deals with transportation generally, lists several objectives. These include, amongst other things: To support appropriate modes of water, land and air transport to and on Savary Island which ensures public safety, minimizes the environmental impact and do not detract from the peaceful enjoyment of the Island while taking into account the dramatic increase in people arriving and staying on the Island during the summer months To ensure good channels of communication exist to keep appropriate government bodies including Ministry of Transportation and [the Regional District] officials well informed regarding the transportation priorities and concerns of Island residents and property owners To accommodate goods and equipment shipped to the Island by barge and to attempt to limit the number and types of vehicles permitted to gain access to the Island. However, the Ministry of Transportation cannot limit licensed vehicles on the roads. 39. Section 6.3, which deals with marine transportation, lists seven policies. These policies include, amongst other things:

10 c 6.3.d 6.3.e In order to limit the impact of barge landings on residences in the vicinity of [the Barge Landing Site] and to restrict excessive vehicle traffic on the Island, the [Regional District] is encouraged to use its authority to regulate the months, days and hours of operation and impose a landing fee on all barge landings. The [Regional District] should work in conjunction with the Savary Island Committee and the local barge operator(s) to reduce or discourage the number of vehicles transported to Savary Island. A study to identify alternative barge landing sites may be considered. The Characterof the Neighbourhood & The Sensitivity of the Plaintiffs Use 40. The Properties are located along Malaspina Promenade and Sherman Walk, within close proximity to the Barge Landing Site. The neighbourhood in which the Properties are located is an established recreational home area with a unique character and a rustic island lifestyle. 41. The Plaintiffs purchased the Properties because, among other things, the Properties offered a safe, quiet, peaceful and aesthetically pleasing location to live. The Nature. Severity and Duration of the Interference 42. The Province is not requiring the Barge Service to be operated in accordance with the License or the Management Plan. 43. The Regional District is not requiring the Barge Service to be operated in accordance with the License, the Management Plan or the Sublicense. In breach of the Management Plan, the Regional District has failed to take all of the specified steps contained in the Management Plan to alleviate the impact of the Barge Service on upland property owners, including the Plaintiffs. 44. Vehicle traffic before, during and after the operation of the Barge Service has caused, and continues to cause, increased noise, pollution and dust around the Barge Landing Site and along Malaspina Promenade and Sherman Walk. This vehicle traffic, combined with permanent storage of cars, boats and other materials at the Barge Landing Site, has a serious negative impact on each of the Properties and each of the Plaintiffs,

11 11 including but not limited to, blocking some of the Plaintiffs views from the Properties and reducing the value of the Properties. 45. In addition, increased vehicular traffic in and around the Barge Landing Site poses a risk to the safety of the Plaintiffs and their families who live and play in close proximity to the Barge Landing Site. 46. The actions of the Defendants, as described in this Notice of Civil Claim, and the resulting damage caused to the Plaintiffs and the Property, have created a private nuisance actionable by the Plaintiffs. 47. The Barge Service has both social utility and social costs. The Barge Service has social utility for all of the residents of Savary Island. However, the Plaintiffs and the other residents who live in the vicinity of the Barge Landing Site bear the entire social cost of the Barge Service. 48. As a result of the private nuisance, the Plaintiffs have suffered loss, damage and expense, including a loss in the value of the Properties. Part 2: REEF SOUGHT The Plaintiffs seek the following relief: 1. interim and permanent injunctive relief against the Regional District prohibiting the conduct creating the private nuisance, including but not limited to, prohibiting the conduct referred to in paragraph 22 (a) through (e) of Part I of this Notice of Civil Claim, or in the alternative, a mandatory injunction requiring the Regional District to take all necessary steps to ensure the Barge Service is operated in accordance with the License, the Management Plan and the Sublicense; 2. a declaration that the operation of the Barge Service to the Barge Landing Site is inconsistent with the OCP, contrary to subsection 884(2) of the Local Government Act, R.S.BC. 1996, c. 323; 3. general damages; 4. special damages;

12 12 5. costs; 6. interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79; 7. such further and other relief as to this Honourable Court may seem just. Part 3: LEGAL BASIS Private Nuisance 1. The interference caused by the operation of the Barge Service, as set out herein, is unreasonable and is intolerable to an ordinary person. The operation of the Barge Service is an unreasonable interference with the Plaintiffs use and enjoyment of the Properties, and thus constitutes an unlawful private nuisance. Inconsistency with the OCP 2. The operation of the Barge Service to the Barge Landing Site is a work undertaken by the council, board or greater board of the Regional District after the adoption of the OCP. 3. The operation of the Barge Service to the Barge Landing Site by the Regional District is inconsistent with the OCP because it: (a) (b) (c) (d) (e) fails to recognize the importance of the marine and foreshore environment to the quality of life on Savary Island and fails to protect these features from detrimental use and the negative impacts of development; fails to protect the natural and scenic values of the coastline which provide Savary Island with its rural marine character; fails to minimize the impact of foreshore uses on upland property owners and vice versa; fails to limit human interference with the drift sector movement of sediment along the foreshore; allows structures which are not required to facilitate marine transportation to be located at the Barge Landing Site;

13 13 (f) (g) (h) (i) fails to support appropriate modes of water transport to Savary Island which ensures public safety, minimizes the environmental impact and does not detract from the peaceful enjoyment of Savary Island; fails to ensure that good channels of communication exist to keep appropriate government bodies well informed regarding the transportation priorities and concerns of Savary Island residents and property owners; fails to attempt to limit the number and types of vehicles permitted to gain access to Savary Island; fails to regulate the months, days and hours of operation of the Barge Service; fails to impose a landing fee on all barge landings; (k) (I) fails to work in conjunction with the Savary Island Committee and the local barge operators to reduce or discourage the number of vehicles transported to Savary Island; and fails to undertake a study to identify alternative barge landing sites. 4. There is an absolute and direct collision between the OCP and the operation of the Barge Service to the Barge Landing Site by the Regional District. As a result, the current operation of the Barge Service is unlawful. Plaintiffs address for service: Fax number address for service (if any): address for service (if any): Place of trial: The address of the registry is: West Georgia Street Vancouver, British Columbia V6E 3R3 None None Vancouver The Law Courts 800 Smithe Street Vancouver, British Columbia V6Z 2E1

14 14 Bull, Housser & Tupper LLP Date: 25/Jun12012 Sint of D jø1tiffs Lawyers for the Plaintiffs James H. Goulden Rule 7-1 (1) of the Supreme Court Civil Rules states: 1, Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (a) prepare a list of documents in Form 22 that lists (I) (ii) all documents that are or have been in the party s possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and all other documents to which the party intends to refer at trial, and (b) serve the list on all parties of record. APPENDIX Part 1: CONCISE SUMMARY OF NATURE OF CLAIM: The Plaintiffs claim injunctive relief and damages for a private nuisance created by the operation of a barge service to a barge landing site on Savary Island. The Plaintiffs seek a declaration that the same barge service is inconsistent with Savary Island s official community plan, contrary to subsection 884(2) of the Local Government Act, R.S.B.C. 1996, c Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: A personal injury arising out of: a motor vehicle accident medical malpractice

15 15 another cause A dispute concerning: contaminated sites construction defects real property (real estate) personal property the provision of goods or services or other general commercial matters investment losses the lending of money an employment relationship a will or other issues concerning the probate of an estate a matter not listed here Part 3: THIS CLAIM INVOLVES: a class action maritime law aboriginal law constitutional law conflict of laws none of the above do not know

16 16 Part 4: 1. The Plaintiffs plead and rely on subsection 884(2) of the Local Government Act, RS.BC. 1996, c. 323.

17 No. Vancouver Registry In the Supreme Court of British Columbia Between: ANN WEST, JOHN LAWRENCE, JOHN MCINTOSH, CANDACE MCINTOSH, STEPHANIE MARY YORATH and JAVA SEA INVESTMENTS INC. and Plaintiffs HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, REPRESENTED BY THE MINISTER OF AGRICULTURE AND LANDS and POWELL RIVER REGIONAL DISTRICT Defendants NOTICE OF CIVIL CLAIM BULL, HOUSSER & TUPPER LLP Barristers & Solicitors West Georgia Street Vancouver BC V6E 3R3 Telephone: (604) Attention: James H. Goulden JHG/jvl Matter # EL1J