Prince George (City) v. Riemer: Seek approval – not forgiveness

By
Grant Murray
Barrister & Solicitor
gjm@murdymcallister.com
February 16, 2010

The recent decision of the B.C. Supreme Court in Prince George (City) v. Riemer 2010 BCSC 118 is a good example of how self-help remedies can sometimes lead to a bigger problem than they solve.   The case arose when the City applied for a court order requiring a home owner, Mr. Riemer, to bring his property into compliance with the City’s Zoning Bylaw and Maintenance Bylaw.  The City was concerned about the storage and accumulation of materials on the property.  Mr. Riemer responded with a counterclaim that the City had wrongly confiscated items from his property, wrongly disassembled structures on the property, and had harassed him.

The City generally succeeded in its application and Mr. Justice Hinkson ordered Mr. Riemer to remove rubbish and materials stored on the property in contravention of the bylaws.  While there was some dispute about whether materials were “rubbish” and “useless” within the meaning of the bylaw, Mr. Justice Hinkson adopted a common sense approach to find that the property was in violation of the bylaws, noting that the property was in a neighbourhood that was “a modern and well maintained one, with the exception of the defendant’s property.”

Mr. Justice Hinkson also dismissed complaints raised by Mr. Riemer in his counterclaim, holding that the City acted reasonably in requiring Mr. Riemer to cut his grass and rake his lawn.  

However, Mr. Justice Hinkson did not dismiss one key claim of Mr. Riemer– that the City had abused its power when it seized two truckloads of material from a carport on the property.  The key evidence against the City was the testimony of a bylaw enforcement officer who had removed the material from the carport without trying to determine whether the materials contravened the bylaws.  The officer testified that he took the material in the carport to appease the complaints of neighbours.  While the reasons are unclear on why this occurred, evidence was also put before the Court that the City’s lawyer had advised the City that it may have overstepped its authority by removing the materials.  Mr. Justice Hinkson concluded that the City had abused its power by knowingly acting outside of “what its Bylaw Enforcement Officer and its counsel believed at the time to be the ambit of its power as set out in the plaintiff’s bylaws, and did so with indifference to any foreseeable harm that its actions may have caused the defendant.”  The Judge added “It is no excuse for a municipal government or its employees to act wrongly against a person, no matter how annoying he may be to them”.

Mr. Justice Hinkson awarded Mr. Riemer nominal damages of $1,000, ordered the City to bear the costs of recovering and storing the materials, and to return the materials to Mr. Riemer if he asked for them.

Apart from the admonition to treat people fairly, no matter how annoying they may be, the case is also a good example of a situation where acting without court approval can backfire.   The case is also notable for being one of the rare examples of liability being found against a local government for misfeasance in public office.  If the City had asked for a court order authorizing it to remove the materials before it acted, it would not have faced a finding of abuse of power.

It is not known if the City will be appealing the finding of misfeasance.