SUPREME COURT OF BRITISH COLUMBIA VANCOUVER REGISTRY =-.=:~:; AUG 2 7 2013. ~ w ;;~;-.: ~~~( i~ :~::-~--~~ ~-~~~--- No. S-083289 VANCOUVER REGISTRY IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: AND: NICOLA MONACO and TAMMY MARIE JOSEPH THE CITY OF COQUITLAM and THE MINISTER OF JUSTICE (BRITISH COLUMBIA) PLAINTIFFS DEFENDANTS Brought pursuant to the Class Proceedings Act, RSBC 1996, c 50 NOTICE OF CIVIL CLAIM (Amended pursuant to order issued June 20, 2013) 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) 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 (b) serve a copy of the filed response to civil claim on the plaintiff. If you intend to make a counterclaim, you or your lawyer must (a) 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 (b) serve a copy of the filed response to civil claim and counterclaim on the plaintiff 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 - Time for response to civil claim A response to civil claim must be filed and served on the plaintiffs, (a) if you were served with the notice of civil claim anywhere in Canada, within 21 days after that service, (b) if you were served with the notice of civil claim anywhere in the United States of America, within 35 days after that service, (c) if you were served with the notice of civil claim anywhere else, within 49 days after that service, or (d) if the time for response to civil claim has been set by order of the court, within that time. CLAIM OF THE PLAINTIFFS Part 1: STATEMENT OF FACTS The parties 1. The plaintiff, Nicola Monaco ( Monaco ) is an electrician who currently resides in the City of Vancouver, in the Province of British Columbia. 2. The plaintiff, Tammy Marie Joseph ( Joseph ) is an office worker who currently resides in the City of Surrey, in the Province of British Columbia. 3. At all material times: a. Monaco was the registered owner of the property located at 368 Seaforth Crescent, Coquitlam, British Columbia, and more particularly known and described as Lot 69, Plan 211136, District Lot 47, New Westminster Land District, PID 010-282-602 (the Property ); and b. Joseph was the tenant of Monaco and resided at the Property. 4. The defendant, the City of Coquitlam ( Coquitlam ), is a municipality incorporated pursuant to the laws of British Columbia, with a business office located at 3000 Guildford Way, in the City of Coquitlam, in the Province of British Columbia. 5. The defendant, the Minister of Justice of British Columbia (the Minister ), is named in these proceedings pursuant to the provisions of the Crown Proceedings Act, RSBC 1996, c 89 (as amended) and the Police Act, RSBC 1996, c 367 (as amended) (the Police Act ).
- 3 - The Bylaw 6. In 2007, Coquitlam enacted the City of Coquitlam Controlled Substance Property Bylaw No. 3833, 2007 (the Bylaw ). 7. For the purposes of the application of the Bylaw, the following terms had the following definitions: a. Inspector means the Manager of Permits for the City, any Bylaw, Property Use, Building or Plumbing Inspector employed by the City, any Firefighter or Fire Prevention Inspector employed by the City or any member of the Royal Canadian Mounted Police. b. Property means any parcel of land, and includes, without limitation, any permanent or portable building or structure located on the parcel, as well as any personal property, equipment or chattel located on the parcel or on or within any permanent or portable building on the parcel. c. Controlled Substance means a controlled substance as described in Schedules I, II, III, IV, V, or VI of the Controlled Substances Act, R.S.C. 1996, c.19, as amended, but does not include the trade or manufacture of a controlled substance that is permitted under that Act [emphasis in original]. d. Hazardous Situation means any real or potential risk to persons or property that arises from the use of a Property for the manufacture of a Controlled Substance or for the trade, use, sharing, storage, sale, or barter of a Controlled Substance. 8. Section 5 of the Bylaw provides that: An inspector has the right to enter upon any Property in accordance with the provisions of the [Community Charter, SBC 2003, c 26] for the purpose of inspecting the Property and declaring whether the Property is being used for the manufacture, trade, use, sharing, storage, sale or barter of a Controlled Substance, contains a Hazardous Situation or is otherwise not in compliance with this Bylaw. 9. Section 7.1 of the Bylaw provides that: Where an Inspector finds that a Hazardous Situation or other thing or condition that is not in compliance with this Bylaw or the Provindat Code exists on a Property, he may revoke any Occupancy Permit for that Property. The inspector will provide written notice of revocation of an Occupancy Permit including particulars of the Hazardous Situation or
- 4 - other thing or condition that exists on the Property and is not in compliance with this Bylaw or the Provincial Code, by posting a notice to that effect on the Property and malting a copy of the notice to the Owner's address as shown in the City's property tax records. 10. Section 9.1 of the Bylaw provides that: If, as a result of the use of the Property for the manufacture, trade, use, sharing, storage, sale or barter of a Controlled Substance, any one or more of the following has occurred: (a) the supply of electricity, water or natural gas to the Property has been disconnected by the City or other lawful authority; (b) alterations or repairs have been made to the plumbing, electrical, heating, water or gas systems, building structure, equipment, appliances or other accessories of any kind on the Property without the Owner or Occupant obtaining and complying with any and all permits for such work required by any federal, provincial or municipal statute, regulation or bylaw; (c) a Hazardous Situation exists on the Property; (d) the Occupancy Permit for the Property has been revoked in accordance with section 7; then a person must not reconnect the supply of electricity, water or natural gas, and the Owner and any Occupant must ensure that the Property is not occupied or used for any purpose until: (e) any reports required by the Inspector have been obtained by the Owner and provided to the Inspector, to the satisfaction of the Inspector and at the Owner's cost; (f) any Hazardous Situation on the Property has been remedied; (g) the Owner or Occupant has applied to the City for and passed a Special Safety Inspection of the Property; (h) the Property has been inspected and approved for occupancy by all other lawful authorities having jurisdiction over the supply of electricity, water or natural gas to the Property for compliance with all health and safety requirements of the City's bylaws and any applicable federal or provincial statutes or regulations relating to building, electrical, water, gas or fire safety;
- 5 - (i) the Owner, or the Occupant if acting as the Owner's agent, has obtained and complied with all permits, approvals or authorizations required to carry out the work necessary to bring the Property into compliance with all applicable federal, provincial and municipal statutes, regulations and bylaws; and (j) where the Occupancy Permit has been revoked pursuant to section 7, a new Occupancy Permit has been issued for the Property. 11. Section 10.1 of the Bylaw provides that: The Inspection Pursuant to the authority granted to the City by the Charter, if an Owner or Occupant of Property: (a) is required to remedy any Hazardous Situation or any thing or condition that is not in compliance with this Bylaw or the Provincial Code that exists on the Property pursuant to a notice given under section 6 of this Bylaw and fails to comply within the time specified in such notice; (b) is required to carry out remedial work on the Property pursuant to section 9 of this Bylaw and fails to comply within the time specified in section 9.3 of this Bylaw; or (c) violates section 4 of this Bylaw; the City may, but is not obligated to, by its employees, agents or other persons with whom it contracts or by members of the RCMP, enter onto the Property for purposes of fulfilling the Owner's or Occupant's requirements under this Bylaw at the Owner's or Occupant's expense and may recover all costs incurred as a debt, including, without limitation, all costs incurred by the RCMP in the disassembly, removal, transportation, storage and disposal of equipment, substances, materials and other paraphernalia associated with the manufacture, trade, use, sharing, storage, sale or barter of a Controlled Substance on the Property. 12. On March 26, 2008 at approximately 4:00pm, Monaco received a couriered letter from Coquitlam (the Letter ) requiring that he confirm a Public Safety Team Inspection (the Inspection ) that had been unilaterally scheduled by Coquitlam to occur at the Property between 12:30pm and 1:30pm on March 27, 2008. 13. The Letter stated the following:
- 6 - The City of Coquitlam Public Safety Inspection Team visited the above address to request that a public safety inspection be completed within 24 hours of the time posted. Please see the enclosed information explaining safety concerns and why a public safety inspection is required. A notice has been posted at this property at [12:30pm on March 26, 2008]. You must contact this office at 604-927-3680 to confirm the safety inspection. Failure to comply with this order will result in the disconnection of the electrical service to this property. The Public Safety Inspection Team will return for an inspection on: Date: 03/27/2008 Arriving between: 1230 hours and 1330 hours. Please be advised that the Public Safety Inspection Team has the authority under the City of Coquitlam Controlled Substance Property Bylaw No. 3833, 2007 to enter at any reasonable time any premises for the purpose of inspecting the property for a hazardous situation. It is your responsibility to ensure the security of the property and to address any situation or potential loss that may result from the disconnection of power to this property for an extended period of time. 14. As a result of the threat of a disconnection of power to the Property, Monaco and Joseph arranged for other persons (collectively, the Plaintiffs Representatives ) to be present at the Property at the scheduled date and time for the Inspection. Monaco and Joseph were both unavailable at the unilaterally scheduled time. 15. At approximately 1:30pm on March 27, 2008, the Plaintiffs Representatives met Coquitlam officials, including bylaw enforcement, fire inspectors, electrical inspectors and two members of the Coquitlam detachment of the Royal Canadian Mounted Police (the RCMP ), who attended at the request of Coquitlam (collectively, the Inspectors ). 16. At all material times, there was an agreement between the governments of British Columbia and Canada pursuant to section 14(1) of the Police Act and section 20 of the Royal Canadian Mounted Police Act, RSC 1985, c R-10 whereby the RCMP was authorized to carry out the powers and duties of a provincial police force. As a result, the RCMP officers who participated in the Inspection were deemed to be provincial constables pursuant to section 14(2) of the Police Act. 17. The Inspectors entered the Property. The RCMP officers detained the Plaintiffs Representatives in one room upstairs in the Property for approximately two hours while the other Inspectors performed the Inspection throughout the Property.
- 7-18. No warrant was ever sought or obtained by Coquitlam or the RCMP in relation to the Inspection of the Property. Enforcement measures 19. Following the Inspection, the Inspectors provided Ms. Monaco with an Electrical Advisory Report listing a number of purported deficiencies in the Property, requiring that a contractor check all of the wiring in the Property, and recommending a hydro disconnect. 20. The Inspectors gave Ms. Monaco a form letter on City of Coquitlam Public Safety Team Inspection letterhead stating that BC Hydro had been ordered to discontinue the supply of electricity to the Property and that electrical services could not be restored until certain remediation work had been performed and Coquitlam had approved the remedial work and all fines and fees had been paid to Coquitlam. 21. Monaco was advised that in addition to the remedial work, a $5,000 fee would have to be paid to Coquitlam for a re-inspection to ensure the remedial work had been completed to Coquitlam s satisfaction (the Inspection Fee ). 22. Monaco immediately retained an electrical contractor, performed remedial work, and paid the Inspection Fee to Coquitlam on March 31, 2008. 23. On March 31, 2008, Coquitlam requested that BC Hydro disconnect electrical service to the Property, and electrical service was disconnected. 24. On April 2, 2008, Coquitlam issued a Notice of Revocation of Occupancy Permit for the Property (the Revocation ). The Revocation cited a violation of the Bylaw and advised Monaco that the Occupancy Permit would not be restored until the remedial work had been completed, the electrical and gas inspections completed, and a mold and noxious substances mitigation report delivered to Coquitlam. 25. At all material times, Coquitlam maintained a database of properties that it claims have been used in marijuana grow operations (the Grow Op Registry ). Upon request, Coquitlam will advise any member of the public whether a specific property is listed in the Grow Op Registry. Properties that are listed on the Grow Op Registry become less desirable to buyers or tenants as a result of a fear that those properties will contain any electric or toxic hazards. 26. On or about April 2, 2008, Coquitlam added the Property to the Grow Op Registry. 27. The Occupancy Permit for the Property was restored in February 2009 following the judgment of this Court in 2009 BCSC 141.
- 8 - The Proposed Class 28. The Plaintiffs bring this action on their own behalf and on behalf of the following class of individuals (the Class ): All British Columbia resident persons who owned or were resident in a property that was subjected to an inspection, pursuant to the City of Coquitlam Controlled Substance Property Bylaw No. 3833, 2007, that was not authorized by a warrant. Class Members complaints 29. Since the Bylaw was passed, Coquitlam has performed inspections that were in all material ways identical to the Inspection (the Class Inspections ) on hundreds of properties owned or occupied by the Class (the Class Properties ). 30. The Class Inspections were performed without Coquitlam or the RCMP seeking or obtaining a warrant for those Inspections, with little or no notice of the Inspections to the Class, and without consent from the Class. 31. Following the Class Inspections, the Class Properties were added to the Grow Op Registry. 32. As a result of the Inspection and Class Inspections, the Plaintiffs and the Class have suffered damage, loss, and expense, including damage to property, the payment of Inspection Fees levied by Coquitlam, expenses incurred in remedial work to have Occupancy Permits restored for the Class Properties, lost rental income, diminution of property value, and expenses incurred in securing and moving to suitable accommodations following the revocation of Occupancy Permits in the Class Properties. 33. As a result of the Inspection and Class Inspections, the Plaintiffs and the Class have suffered humiliation, degradation, mental distress, anxiety, anguish, and other harms. Part 2: RELIEF SOUGHT 1. The Plaintiffs seek the following remedies, on their own behalf and on behalf of the Class: a. An order certifying this action as a class action; b. Damages to the Plaintiffs and Class for: i. Trespass;
- 9 - ii. Breach of Charter rights; iii. Inspection Fees or fines levied by Coquitlam; iv. Loss of rental income; v. Diminution of property value vi. Expenses incurred for work performed on the Class Properties as a result of the Inspections and in order to have utilities and occupancy permits restored to the Class Properties; vii. Expenses incurred in securing and relocating to alternative accommodations as required by the revocation of the Occupancy Permits; viii. Damage to property and personal possessions during the time that the Occupancy Permits were revoked; and ix. Other damages. c. An order that the Defendant remove the Property and Class Properties from the Grow Op Registry; d. Punitive damages; e. Pre- and post-judgment interest pursuant to the Court Order Interest Act, RSBC 1996, c 79; and f. Such further and other relief as this Honourable Court deems just. Part 3: LEGAL BASIS 1. A warrantless entry and inspection of residential premises for the regulatory purpose of inspecting electrical systems or other parts of the premises for safety risks that may be related to the production of controlled substances is an infringement of the owner s and resident s rights under section 8 of the Charter of Rights and Freedoms: Arkinstall v City of Surrey, 2010 BCCA 250 at para 94. 2. Coquitlam and the RCMP infringed the section 8 Charter rights of the Plaintiffs and the Class to be secure against unreasonable search and seizure by entering the Property and Class Properties without a warrant. 3. Coquitlam infringed the section 7 Charter rights of the Plaintiffs and the Class to life, liberty and security of the person and the right not to be deprived thereof by
-10- revoking the Occupancy Permits for the Property and Class Properties without lawful excuse. 4. These infringements cannot be justified in a free and democratic society by section 1 of the Charter. 5. The Inspection and Class Inspections were performed without the consent of the Plaintiffs or the Class. As a result, Coquitlam and the RCMP also committed the tort of trespass. 6. As a result of these breaches of Charter rights and the trespass upon the Property and Class Properties, the Plaintiffs and the Class have suffered the damages particularized above. 7. The conduct detailed above was high-handed, outrageous, reckless, wanton, entirely without care, deliberate, callous, disgraceful, willful, and in complete disregard for the rights of the Plaintiffs and the Class and, as such, renders Coquitlam liable to pay punitive damages. Plaintiffs' address for service: BRANCH MACMASTER LLP 141 0-777 Hornby Street Vancouver, BC V6Z 1 S4 Telephone: (604) 654-2999 (File No.: X01-035) Fax number address for service: (604) 684-3429 E-mail address for service: lbrasil@branmac.com Place of trial: Vancouver, British Columbia The address of the registry is: 800 Smithe Street Vancouver, BC V6Z 2E1 Dated: August 26, 2013 Rule 7-1 (1) of the Supreme Court Civil Rules states: Signature of [v] lawyers for plaintiffs Luciana P. Brasil and Greg McMullen
- 11 - (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) 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 (ii) 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: Breach of Charter rights and slander to title resulting from a Coquitlam bylaw authorizing warrantless electrical inspections. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: [ ] a motor vehicle accident [ ] medical malpractice [ ] 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 [x] a matter not listed here Part 3: THIS CLAIM INVOLVES: [x] a class action [ ] maritime law [ ] aboriginal law
- 12 - Part 4: [x] constitutional law [ ] conflict of laws [ ] none of the above [ ] do not know 1. Charter of Rights and Freedoms 2. City of Coquitlam Controlled Substance Property Bylaw No 3833, 2007