Vancouver (City) v. Zhang et al.,

• Jurisdiction: British Columbia
• Judge: Finch
• Neutral Citation: 2009 BCCA 210
• Citation: (2009), 270 B.C.A.C. 1 (CA),2009 BCCA 210,270 BCAC 1,(2009), 270 BCAC 1 (CA),270 B.C.A.C. 1
• Date: 06 February 2009
• Court: Court of Appeal (British Columbia)

Vancouver v. Zhang (2009), 270 B.C.A.C. 1 (CA);

    454 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JN.004

City of Vancouver (respondent/plaintiff) v. Sue Zhang, John Doe, Jane Doe, and Other Persons Unknown Erecting, Maintaining or Occupying Structures on City of Vancouver Street in the 3300 Block of Granville Street, Vancouver, British Columbia (appellants/respondents)

(CA036802; 2009 BCCA 210)

Indexed As: Vancouver (City) v. Zhang et al.

British Columbia Court of Appeal

Finch, C.J.B.C.

February 9, 2009.

Summary:

The City of Vancouver petitioned for an injunction requiring the defendants, who had maintained a protest vigil for the past seven years, to remove a hut and a billboard from a major street in front of the Chinese Consulate. The City asserted that the structures contravened s. 71 of the street and traffic bylaw, by obstructing the free use of the street. The defendants contended that s. 71 was unconstitutional as overbroad and ambiguous, and sought a constitutional exemption.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 84, granted the injunction. The defendants applied for a stay, contending that denial of their Charter rights to free speech would cause them irreparable harm.

The British Columbia Court of Appeal, per Finch, C.J.B.C., refused the application. The balance of convenience fell in favour of the City. The public interest in having the bylaw obeyed outweighed any hardship from the injunction.

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunction pending litigation of Charter issue - The City of Vancouver petitioned for an injunction requiring the defendants, who had maintained a protest vigil in front of the Chinese Consulate for the past seven years, to remove structures from a major street - The City asserted that the structures obstructed the free use of the street, contravening s. 71 of the street and traffic bylaw - The defendants contended that s. 71 was unconstitutional - A chambers judge granted the injunction, concluding that the vigil was incompatible with the City's purpose of the street and therefore excluded from the protection of s. 2(b) of the Charter - The defendants applied for a stay, contending that denial of their Charter rights to free speech would cause them irreparable harm - The British Columbia Court of Appeal, per Finch, C.J.B.C., refused the application - As conceded, the defendants met the first part of the test stated in RJR-MacDonald (1994) (S.C.C.), i.e., there was sufficient merit in the appeal - To the extent the right to freedom of expression might be infringed, the impairment did not rise to the level of irreparable harm - It would be more inconvenient for the defendants to continue their protest, but their freedom to express their political views remained - If the defendants succeeded on their appeal, the structures could be replaced - The refusal of a stay would not impede their appeal - From the City's perspective, irreparable harm was more easily demonstrated; i.e., public interest in having the law obeyed - The balance of convenience fell in favour of the City.

Injunctions - Topic 1724

Interlocutory or interim injunctions - Stay of interim or interlocutory injunction - Pending appeal - [See Civil Rights - Topic 8587 ].

Injunctions - Topic 4545

Operation of injunctions - Suspension - Stay pending appeal - When available - [See Civil Rights - Topic 8587 ].

Injunctions - Topic 5107

Enforcement of injunctions - General - Stay of - [See Civil Rights - Topic 8587 ].

Land Regulation - Topic 4148

Land use control - Appeals to the courts - Stay pending appeal - [See Civil Rights - Topic 8587 ].

Practice - Topic 5780

Judgments and orders - Interlocutory or interim orders or judgments - Stay of - [See Civil Rights - Topic 8587 ].

Practice - Topic 5948

Judgments and orders - Enforcement of orders - Stay of - [See Civil Rights - Topic 8587 ].

Cases Noticed:

RJR-MacDonald Inc. 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. 3].

North Cowichan (District) v. Jopp Ventures Corp. (2000), 139 B.C.A.C. 144; 227 W.A.C. 144; 2000 BCCA 327, appld. [para. 11].

Counsel:

J.J.M. Arvay, Q.C., and C.M. Ansley, for the appellant;

T. Zworski, for the respondent.

The application for a stay was heard in Chambers at Vancouver, British Columbia, on February 6, 2009, by Finch, C.J.B.C., of the British Columbia Court of Appeal, who orally delivered the following reasons for judgment on February 9, 2009.