North Pender Island Local Trust Committee v. Conconi, 2009 BCCA 174

• Judge: Frankel, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 16, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 174;(2009), 270 B.C.A.C. 29 (CA)

North Pender Island Trust v. Conconi (2009), 270 B.C.A.C. 29 (CA);

    454 W.A.C. 29

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MY.018

North Pender Island Local Trust Committee (respondent/plaintiff) v. Robert Leslie Conconi (appellant/defendant)

(CA036988; 2009 BCCA 174)

Indexed As: North Pender Island Local Trust Committee v. Conconi

British Columbia Court of Appeal

Frankel, J.A.

April 16, 2009.

Summary:

The North Pender Island Local Trust Committee applied for a declaration that a property owner was using or allowing the use of his property as a commercial resort and wedding facility in contravention of a bylaw. The Committee applied for an interlocutory injunction restraining the owner from using the property for commercial purposes, pending a summary trial of the matter.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. F38, dismissed the application.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 328, declared that the owner was using the property contrary to the bylaw and granted an injunction prohibiting him from using his property as a commercial resort and wedding facility and from marketing the property for those purposes. The owner appealed and applied for a stay of proceedings, including execution of the impugned order, pending the determination of the appeal.

The British Columbia Court of Appeal, per Frankel, J.A., dismissed the application.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - The North Pender Island Local Trust Committee obtained a declaration that a property owner was using his property as a commercial resort and wedding facility contrary to a bylaw and injunctive relief preventing such use - The owner appealed and applied for a stay of proceedings, including execution of the impugned order, pending the appeal - The Committee conceded that there was a serious question to be tried - The British Columbia Court of Appeal, per Frankel, J.A., concluded that the irreparable harm test was met - Prohibiting the owner from operating the business would have a negative financial impact on him - If the appeal succeeded, it would be extremely difficult, if not impossible, for him to obtain damages from the Committee arising out of actions taken by it to enforce the bylaw - Additionally, it would be extremely difficult, if not impossible, to determine the long term impact of a closure on the owner's revenues - However, the balance of convenience tipped in favour of the Committee - Generally, the public interest would suffer if conduct which contravened an admittedly valid bylaw was allowed to continue - An inordinate delay by a local government in seeking to enforce its bylaws might be a relevant factor - Although there had been a delay in having the matter dealt with, the court was unable to attribute fault for that delay - For those reasons, the court denied a stay.

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Practice - Topic 8954 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - The British Columbia Court of Appeal, per Frankel, J.A., rejected an assertion that, on an application for a stay pending an appeal, the fact that a Supreme Court judge had granted an injunction should be treated as effectively conclusive with respect to the balance of convenience test - The court had an independent discretion to exercise and his or her decision was to be informed by factors that were different from those considered by the judge whose order was being appealed - See paragraph 14.

Cases Noticed:

RJR-MacDonald et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, appld. [para. 6].

North Cowichan (District) v. Jopp Ventures Corp. (2000), 139 B.C.A.C. 144; 227 W.A.C. 144; 2000 BCCA 327 (C.A.), refd to. [para. 12].

Vancouver (City) v. Zhang et al. (2009), 270 B.C.A.C. 1; 454 W.A.C. 1; 2009 BCCA 210, refd to. [para. 13].

Counsel:

P.D. MacDonald and E.H.L. Mak, for the appellant;

F.V. Marzari, for the respondent.

This application was heard in Chambers, at Vancouver, British Columbia, on April 16, 2009, by Frankel, J.A., of the British Columbia Court of Appeal, who delivered the following oral reasons for judgment on the same date.