Prince George (City) v. Rahn Bros. Logging Ltd. et al., 2003 BCCA 31

• Judge: Rowles, Prowse and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 07, 2002
• Jurisdiction: British Columbia
• Citations: 2003 BCCA 31;(2003), 176 B.C.A.C. 195 (CA)

Prince George v. Rahn Bros. (2003), 176 B.C.A.C. 195 (CA);

    290 W.A.C. 195

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. JA.098

City of Prince George (respondent/plaintiff) v. Rahn Bros. Logging Ltd. (appellant/defendant)

(CA028952; 2003 BCCA 31)

Indexed As: Prince George (City) v. Rahn Bros. Logging Ltd. et al.

British Columbia Court of Appeal

Rowles, Prowse and Thackray, JJ.A.

January 17, 2003.

Summary:

The plaintiff city sought to permanently enjoin Rahn Bros. Logging and its tenant from storing or parking logging equipment on land in contravention of the city's zoning bylaw. Rahn filed a defence and counterclaim that the city negligently issued two building permits to Rahn. The city admitted negligence with respect to one permit, but not the other. The city applied for an interlocutory injunction, pending a full hearing of the city's claim.

The British Columbia Supreme Court, in a decision reported at [2000] B.C.T.C. 663, granted an interlocutory injunction restraining certain of the defendants' activities.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 1200, granted a permanent injunction. The court also found that the city was negligent in the issuance of building permits in 1985 and 1993, but for which Rahn would have constructed its building and facilities elsewhere. The court awarded Rahn damages accordingly. Rahn appealed the terms of the permanent injunction and the damages awarded.

The British Columbia Court of Appeal allowed the appeal on both issues.

Damages - Topic 3630

Deceit and misrepresentation - Negligent misrepresentation - An injunction enjoined the defendant from storing or parking logging equipment on land, contrary to a city's zoning bylaw - The city made negligent misrepresentations respecting the use to which the property could be put, making it liable to the defendant for damages - The British Columbia Court of Appeal held that the trial judge erred in basing his damage award on a finding, on a balance of probabilities, that the defendant would not need such a property in the future - The proper damages were replacement costs, less deductions for deterioration, obsolescence and uncertainties in the logging industry, or that the defendant might decide not to replace or to replace on a smaller scale - See paragraphs 61 to 93.

Damages - Topic 3630

Deceit and misrepresentation - Negligent misrepresentation - An injunction enjoined the defendant from storing or parking logging equipment on land, contrary to a city's zoning bylaw - The city made negligent misrepresentations respecting the use to which the property could be put, making it liable to the defendant for damages - The British Columbia Court of Appeal affirmed no award for loss of rental revenue between the granting of the interim injunction and the time a new facility could reasonably be expected to be completed - The defendant's counterclaim for damages for negligent misrepresentation was in tort - The defendant could only claim for capital, not income, losses - Use of the property for light industrial rental purposes under existing zoning was not a foreseeable consequence of the negligent misrepresentation - See paragraphs 94 to 102.

Damages - Topic 4343

Torts affecting land and buildings - Cost of reinstatement - Where applicable - [See first Damages - Topic 3630 ].

Injunctions - Topic 1565

Permanent injunctions - Practice - Variation of - [See Injunctions - Topic 7079 ].

Injunctions - Topic 7075

Particular matters - Violation of statute - General - The British Columbia Court of Appeal stated that the court retained a discretion to refuse to grant a statutory injunction but where a clear breach was established the court should only refuse the application in exceptional circumstances - See paragraph 54.

Injunctions - Topic 7079

Particular matters - Violation of statute - Municipal bylaw - A city sought to enforce its zoning bylaw by injunction - The defendant conceded the city's entitlement to a permanent injunction; at issue was its wording - In its pleadings the city sought to enjoin only use of the property by third parties, rather than restricting any use not in compliance with the bylaw - The British Columbia Court of Appeal held that the wording was too broad, as it would catch activities in relation to motor vehicles and equipment that would not be a prohibited use under the applicable zoning bylaw - The court substituted an order that the defendant be permanently enjoined from using its property, or permitting others to use it, for any purpose contrary to the zoning bylaw - See paragraphs 43 to 60.

Cases Noticed:

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241; [1993] 2 W.W.R. 321, refd to. [para. 1].

Maple Ridge (District) v. Thornhill Aggregates Ltd. et al. (1998), 109 B.C.A.C. 188; 177 W.A.C. 188; 54 B.C.L.R.(3d) 155; 162 D.L.R.(4th) 203; 47 M.P.L.R.(2d) 249 (C.A.), refd to. [para. 46].

Attorney General v. Bastow, [1957] 1 Q.B. 514; [1957] 2 W.L.R. 340; [1957] 1 All E.R. 497, refd to. [para. 54].

Coquitlam (City) v. Aweryn et al. (2001), 156 B.C.A.C. 218; 255 W.A.C. 218; 18 M.P.L.R.(3d) 208 (C.A.), refd to. [para. 54].

Nan v. Black Pine Manufacturing Ltd. (1991), 80 D.L.R.(4th) 153; 55 B.C.L.R.(2d) 241 (C.A.), not appld. [para. 64].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1; 99 D.L.R.(4th) 626, refd to. [para. 69].

Mallet v. McMonagle, [1970] A.C. 166, refd to. [para. 73].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 73].

Counsel:

C.G. Fletcher and D.M. Marcotte, for the appellant;

R.J. Stewart, Q.C., for the respondent.

This appeal was heard in Vancouver, British Columbia, on November 7, 2002, before Rowles, Prowse and Thackray, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Rowles, J.A., on January 17, 2003.