Background
After a 2015 fire damaged Rosa Donna Este’s house, the District of West Vancouver issued a 2020 remedial action requirement directing that the derelict house be demolished. Este’s judicial-review challenge to the demolition order was dismissed, that dismissal was affirmed on appeal, and the Supreme Court of Canada refused leave. Este later performed repairs without a permit, leading the District to obtain an interlocutory injunction and then a permanent statutory injunction restraining her from working on the property and obstructing enforcement of the demolition order.
Este appealed the permanent injunction and sought a stay pending that appeal. A chambers judge dismissed the stay application, finding no serious issue to be tried, no irreparable harm attributable to refusal of the stay, and a balance of convenience favouring enforcement of the bylaw. Este then applied under s. 29 of the Court of Appeal Act to vary or cancel that ruling, relying principally on evidence that the fire damage had allegedly been assessed at only 20–25%. By the time the division heard the application, the District had demolished the house but left its foundation.
The Court’s Holding
The Court of Appeal dismissed Este’s application. A division reviewing an order of a single chambers judge does not rehear the original application; it may intervene only where the chambers judge made an error of law or principle or misconceived the facts. Este established none of those grounds.
The chambers judge properly treated the application as one to stay the permanent injunction, not as another challenge to the demolition order, whose validity had already been litigated. The Court upheld the conclusions that Este’s inconsistent positions concerning the extent of the fire damage amounted to an abuse of process and that her proposed fresh evidence was directed at relitigating the demolition order and did not satisfy the Palmer relevance requirement.
The Court also held that any request for interim protection while Este pursued reconsideration of the earlier judicial-review proceeding belonged in the Supreme Court of British Columbia. That issue was not engaged by either the original stay application or the application to vary.
Key Takeaways
- A division of the British Columbia Court of Appeal will vary a chambers judge’s order only for an error of law or principle or a misconception of the facts.
- A stay application concerning a permanent injunction cannot be used to relitigate a separately issued demolition order whose validity has already been finally adjudicated.
- Proposed fresh evidence must bear on a decisive or potentially decisive issue in the proceeding; evidence aimed at a different, concluded dispute does not satisfy that requirement.
Why It Matters
The decision underscores both the deferential standard governing review of a Court of Appeal chambers order and the importance of matching requested interim relief to the order actually under appeal. Evidence challenging the factual basis of a demolition order could not justify staying a permanent injunction when the demolition order itself was not at issue.
For municipal-enforcement disputes, the ruling also confirms that litigants must seek preservation relief in the proceeding where the underlying administrative order is being challenged, rather than using a related injunction appeal to reopen that order.