Property Rights Not Guaranteed In Canada : A Real Courtroom Drama

Seated across from me next to the Judge at the Settlement Conference table were the three lawyers for the City, GVRD, and the Sewage Authority. They eyed me like sharks circling their bait. “All right gentlemen” said the Judge, “what have you decided to offer the Claimant to settle this case?”

The lawyer representing the City of Vancouver and Mayor Sullivan said “Nothing Your Honour, he doesn’t have any cause of action against the City or the Mayor. We will apply to have this case dismissed.” The two other lawyers seconded him. I responded, “I didn’t know we were living under a dictatorship. Is this Uganda of the North, with all due respect to Idi Amine?” The lawyer grinned and nodded.

The Judge looked at me and said “You have invoked the Charter of Rights, but property rights are not guaranteed under our Constitution, that is still a controversial issue.” I knew that, but why the hell not, although I wasn’t referring to property rights but to Section 12 of the Charter of Rights and Freedoms of Canada, the only Made-in-Canada part of our Constitution. That is the section that protects citizens against “cruel treatment or punishment”.  As far as I was concerned, subjecting people to 24 hours of gruelling noise and earth-shaking vibration, sleep deprivation, disrupting their lives, and ignoring their pleas to stop it, constitute cruel treatment. Furthermore, they had broken their own laws.

I was suing the City of Vancouver, Mayor Sam Sullivan, Greater Vancouver Regional District (Now Metro Vancouver) and the sewage people for damages at the Small Claims Court, and hoping that they would at the very least apologise and pay for my Prozac prescriptions. The Claim was caused by the excavation of a hole across from what I used to call home, now a 10-story vibrator buzzing around the clock, to pull a sewage pipe across False Creek. They could have done the drilling on the other side, half a mile from residences, but that might have affected Planetarium’s business. They could also have observed a more reasonable work schedule and let us have our peace on the weekend. They have closed and reopened the work site twice for summer holidays, so obviously there was no pressing public emergency. But what does City Hall care about a hundred residents losing sleep and the quiet enjoyment of their homes?

I had drafted my claim in haste without doing my homework when I was going through a family crisis. Municipal liability is a complex area of the law that is still evolving and the dust has not yet settled on it, but I thought I’d grasped the nuts and bolts of the legal issues when I went to the full-day hearing. What had surprised me was that municipalities, and other governments for that matter, are not obliged to enforce or to comply with their own laws. It turned out that even the Judge didn’t know about that. They can hound you to hell for a $30 ticket, but you can’t hold them responsible for breaking their own laws, ignoring them, or applying them discriminately, and that was the law. Never assume that just because it seems unjust, unfair or unreasonable to you it must be unlawful. Laws are made by politicians and only tempered by judicial wisdom, and politicians hate judges tampering with their decisions.

I therefore had to redraft my pleadings and I was applying for the Court’s permission to do so at the same hearing.

The Small Claims Court is a bare-bones legal process, I’ve heard judges call it the debt court or the people’s court, and lawyers are not supposed to be welcome against Joes and Janes that don’t know much about the law. It only consists of the Settlement Conference and the Trial, no discovery, and trial is your only chance to call witnesses and documents and cross-examine your opponent. GVRD adamantly refused to let me examine its contract with the contractor, and the lawyers insisted that the hearing would only be an argument at law to determine if there was a reasonable cause of action against the defendants. That's not the way it turned out. 

Denying an ordinary citizen his day in court was therefore to me the ultimate act of intimidation and abuse by an authority that would rather pay a fortune to lawyers to make a point than take responsibility for its mistakes. Obviously they could not risk a legal precedent or being questioned under oath about a project that was not going the way they had planned. The project that started in 2006, and was supposed to be completed in 6 months, has still not been completed, and I can still hear the trucks, through my industrial ear protection gear, pumping water from the pit across from my home.

As the hearing progressed the lawyers were unpleasantly surprised to find out that I had come prepared and they were not going to have the easy victory they expected. One of them said to the Judge in desperation, “But this is unfair, this is not the way he pleaded on his Claim.” I told the Judge that was why I was applying for permission to amend it. So the Judge told me to amend it during the lunch break, which effectively gave me 45 minutes to run home to prepare a professional-looking document.

I liked the lawyers, they were professionals doing their best, and wished I could afford the services of a good one.  I always get the best part of my legal education from opposition lawyers. Governments and big corporations have deep pockets, so they throw at you the best talent money can buy. I especially liked the shoes of Vancouver’s finest, which was a cross-breed of moccasins and cowboy boots. He said they were his lucky shoes. He was the right choice for the legal stampede.

At the end of the day the Judge announced that she was going to reserve judgment and she wasn’t sure until when. One of the lawyers started to laugh and shook my hand, which I took as a compliment. The others looked stunned.

The Judge could not render her decision for 10 months, and I think she would’ve taken longer if I hadn’t filed a formal inquiry with the court. In the end she took the escape clause in the Charter of Rights that is Article 1, if it’s in public interest, which can suspend all of our fundamental constitutional rights, and dismissed the claim. She conducted the hearing like a full trial although it was not a proper trial, made findings of fact, and the decision was full of procedural flaws. There was no reference to my application for amended pleadings, or the legal issues I raised in my submission.  However, I have great respect for our judges, and my faith in the justice system has not been shaken. Judges and the justice system are our only hope to get our democracy back in the face of the ever-increasing abuse of authority and lack of accountability by politicians.

Later I found out that no claim has ever succeeded in court under Section 12 of the Charter of Rights. Cruel treatment in Canada is when a Third World dictator’s thugs deprive somebody of his property or rough him up, not our civilised men wearing suits and ties and acting under the so-called statutory authority.

Two good things came out of it, so it wasn’t entirely in vain.

Government asked for my feedback on the Small Claims Court process, and who knows, maybe someone will listen.

Metro Vancouver changed the work schedule on the site to 9AM to 6PM and eliminated Saturdays, as I’d been asking all along...