The petitioner, Amix, unsuccessfully brought a petition for an order of mandamus, which would have required the respondents (City of Chilliwack and its Approving Officer) to make an improvement to the water line on its land

Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Planning and zoning – Building permits – By-laws – Utility services – Judicial review – Public officer – Remedies – Mandamus – Availability

Amix Salvage & Sales Ltd. v. Chilliwack (City), [2010] B.C.J. No. 2067, 2010 BCSC 1493, British Columbia Supreme Court, October 25, 2010, M.J. Allan J.

The petitioner, Amix Salvage & Sales Ltd. (“Amix”), operates a scrap metal salvage business on a property in the City of Chilliwack (the “City”). Amix has occupied the property since July 2007. Amix purchased the Property (Lot 3) in 2008 when the owner of a larger parcel subdivided it into 3 Lots. The Property is on a flood plain and is behind another Lot (Lot 1) that is adjacent to the roadway. There is a small water line servicing the Property through Lot 1 and in June 2009, Amix applied for a building permit to add an extension to its existing shop on the Property. The City advised Amix that it would have to install a fire hydrant and a fire suppression system on the Property. Such a system would require the installation of a larger diameter water line. The City takes the position that Amix must pay for the installation of such a water line from the roadway through to the Property (through lot 1). Amix is not prepared to pay for the cost of the water line upgrade on the City’s property.

Ms. Thompson (the City’s Approving Officer) deposed that the Property is on a flood plain and she believed further development of the Property was unlikely because of the potential for flooding. The owner’s subdivision application was granted with that expectation.

Amix argued that Ms. Thompson failed in her duty as Approving Officer to require the subdivision to comply with the City’s bylaws before granting approval. Amix also argued that the City had a legal duty to require the owner to provide a water distribution system to and into the Property and that the City currently has a legal obligation to provide Amix with that system in order to enable Amix to improve the Property.

The City argued that Amix does not meet the test for mandamus and that the City is under no legal duty to construct a water main to the Property. The City also argued that Amix’s conduct (in leasing a portion of the property contrary to the provisions of the Land Title Act) disentitles it from equitable relief.

The court reviewed the requirements imposed upon a party seeking mandamus. First, there must be a public legal duty to act. The question for the court was whether the City had a public duty to connect its water distribution service to the waterline on the Property. The court noted that the Subdivision Bylaw (relied upon by Amix) has the stated objective of requiring owners of land being subdivided to make certain improvements to their land prior to subdivision. The court noted that this may impose a duty on the City to approve subdivisions only where the improvements are made prior to subdivision but that duty does not create any obligation of the City to make those improvements and pay for them if the owner of the land at the time prior to subdivision did not do so.

The court further held that, in any event, Amix’s conduct disentitled it from equitable relief since mandamus is a discretionary prerogative remedy which can be denied to applicants who are guilty of misconduct. In this regard, the court accepted the City’s submission relating to Amix’s conduct in leasing a portion of the Property in contravention of the Land Title Act.

The petition of Amix was dismissed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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