Citation:
Cox v. City of Surrey,
2007 BCCA 72
Date: （略）
Docket: CA033288
Between:
Gordon Cox
Appellant
(Plaintiff)
And
City of Surrey and
Her Majesty the Queen in Right of the Province
of British Columbia
Respondents
(Defendants)
Before:
The Honourable Madam Justice Prowse
The Honourable Madam Justice Huddart
The Honourable Madam Justice Kirkpatrick
G. Cox
Acting on his own behalf
A.K. Fraser
Counsel for the Respondent
Province of British Columbia
R.G. Hildebrand
Counsel for the Respondent
City of Surrey
Place and Date of Hearing:
Vancouver, British Columbia
January 25, 2007
Place and Date of Judgment:
Vancouver, British Columbia
February 6, 2007
Written Reasons by:
The Honourable Madam Justice Prowse
Concurred in by:
The Honourable Madam Justice Huddart
The Honourable Madam Justice Kirkpatrick
Reasons for Judgment of the Honourable Madam Justice Prowse:
[1] Mr. Cox, appearing in person, is appealing from the order of a chambers judge, made August 5, 2005, dismissing his application for judgment against the City of Surrey (the “City”) and Her Majesty the Queen in Right of the Province of British Columbia (the “Crown”). The relief Mr. Cox is seeking relates to a decision made by a government official in 1999 that he was not entitled to home owner grants for the years 1995-1997, and to the subsequent tax sale of his property by the City on September 27, 2004.
[2] The Court was advised that, subsequent to the tax sale, the mortgagee of the property redeemed the property, that Mr. Cox settled with the mortgagee, and that title to the property remains in Mr. Cox’s name.
[3] On appeal, Mr. Cox seeks an order granting him judgment against the Crown and the City for the amount of the home owner grants, plus interest, and the costs he incurred relating to the tax sale. In brief, he submits that he was at all relevant times the owner and occupier of the property; that he filled in the home owner application stating that he was the owner and resident of the property; that this was all the evidence that was required to entitle him to the grants, and that there was no reasonable basis for finding that he was disentitled to the grants. He further submits that he now has evidence that the person who made the decision denying him the grants may not have been the appropriate official designated under the Home Owner Grant Act, R.S.B.C. 1996, c. 194 (the “Act”) to make the decision of disentitlement at the relevant time.
[4] Mr. Cox’s claim against the City is based on his submission that it did not follow proper procedures, or give him appropriate notice of the consequences of failure to bring his taxes up to date, and that it, too, is liable to him for the taxes and costs he has incurred.
[5] In reply, the respondents submit that Mr. Cox’s action was misconceived and that, if he had a remedy, it was solely against the government official who made the decision disentitling him to the grants. In their view, this remedy had to be pursued by way of judicial review of the decision of that official, rather than by action. The City also submits that it did not make the decision denying Mr. Cox the grants, but that it simply carried through with its statutory mandate in advising Mr. Cox of the taxes owing, notifying him in advance of the tax sale, and taking steps to sell the property as provided for under the Act.
[6] In order to place these submissions in context, I will briefly review the somewhat unusual background giving rise to this appeal.
[7] On February 23, 1999, Mr. Steve Ratkai, an auditor with the Ministry of Municipal Affairs dealing with home owner grants, sent a letter to Mr. Cox questioning whether he was entitled to home owner grants with respect to property registered in his name in Surrey for the years 1993-1998. The letter provided, in part, as follows:
It has come to our attention that between 1993 and 1998 you may have claimed the home owner grant at your property in Surrey. As we explain below, you may not have been eligible to do so.
To qualify for the home owner grant, the applicant must be the registered owner of the property, a permanent resident of British Columbia, and must occupy the eligible dwelling as his or her principal residence. The Home Owner Grant Act (the Act) defines principal residence as the “usual place where an individual makes his or her home.” Ownership of a home does not automatically qualify the taxpayer for a grant. Furthermore, an owner, together with his or her spouse or common law spouse qualifies for a grant on only one residence in the province in any one calendar year. For your information, I have enclosed a copy of our program brochure.
As we explained above, to qualify for the grant the registered owner must occupy the property as his or her principal residence. However, according to BC Drivers records you reside in Vancouver, or elsewhere, while maintaining your mailing address in Vancouver at East Broadway. Consequently you may not be eligible for the home owner grants at your Surrey property.
If you wish to contest your eligibility, and to support your claims, please complete the enclosed questionnaire and with the requested documents and explanations return it to this office. This request is being made in accordance with section 10 of the Act. If the required documents are not received within thirty (30) days from the date of this letter, we will assess your eligibility based on the information available at that time. If we confirm that you were ineligible for the grants, we will proceed to recover the grants with interest, in accordance with the Act.
[8] There is some dispute as to whether Mr. Cox responded to this letter. He says that he did respond, and the materials before the Court include a letter dated March 26, 1999 which Mr. Cox says he faxed to the number provided in Mr. Ratkai’s letter. The Crown says that there is no record of this letter ever having been received.
[9] In any event, the letter written by Mr. Cox was not directly responsive to the issue raised in Mr. Ratkai’s letter, and its sarcastic tone was unhelpful. It is fair to say, however, that the tenor of Mr. Cox’s letter was that he was the owner of the property and that just because he had a mailbox number did not mean that he was not living on the property.
[10] Thereafter, on May 5, 1999, Ms. Janet Baltes, described in her letter as the “Director of the Home Owner Grant Administration and Assessment Services”, sent a letter to Mr. Cox, advising him that he was disentitled to the home owner grants for the years 1995-1997 inclusive. The letter is headed: “NOTICE OF DISENTITLEMENT”. Since this letter sets out the decision which ultimately triggered the events which followed, I will quote it in some detail:
In our letter dated February 23, 1999 (copy enclosed), we requested that you provide information to assist us in establishing your eligibility for the 1993 to 1998 home owner grants at the above address. To date we have not received a reply to this request.
As stated in that letter, your eligibility has now been assessed based on the information available to us at this time. According to BC Drivers’ records, your official address is at East Broadway in Vancouver. Furthermore, historical records in the BC Drivers’ records indicate a number of addresses for you during our review period. However, these and phone records do not support your residency at 88 Avenue Surrey. Thus, you were not eligible for the home owner grants in Surrey between 1995 and 1997.
Therefore, you will have to pay back the grants with interest, charged in accordance with section 17 of the Home Owner Grant Act (the Act). Please make your cheque payable to the Minister of Finance and Corporate Relations in the amount of $1,828.67, and forward the cheque to the mailing address below.
...
If you wish to appeal this decision, you may do so in writing to this office. Your letter must be received within thirty (30) days from the date of this letter. Please state clearly the basis of your appeal and attach copies of all documents which support your position.
If payment or your appeal is not received within thirty (30) days, we will request the Collector of Taxes for the City of Surrey to add the outstanding amount to your property tax account in accordance with subsection 17(4) of the Act. A copy of that request will be provided for your information.
If you wish to discuss this further, please contact Steve Ratkai at [telephone number].
[11] Mr. Cox did not respond to this letter, nor did he seek to have Ms. Baltes’ decision reviewed.
[12] On June 9, 1999, the Home Owner Grant Branch wrote to the Collector of Taxes at the City advising that Mr. Cox had failed to repay the home owner grants and that he had failed to apply within 30 days of notification for a review of the decision. The City was, therefore, requested to add the amount owing to the tax roll and forward payment of that amount to the office of the Home Owner Grant Administration. The City complied with this request. It appears that a copy of this June 9th letter was sent to Mr. Cox, but he advised the Court he had not received it. He did, however, receive another letter of the same date setting forth the arrears of taxes owing on the property.
[13] Five years later, on July 30, 2004, Ms. Bhullar-Gill, a Senior Property Tax and Utility Representative for the City, wrote to Mr. Cox advising him that 2002 property taxes were owing and that “At 10:00 a.m. on Monday, September 27, 2004, in the Council Chambers, the collector must conduct the annual tax sale by offering for sale by public auction each parcel of real property on which taxes are delinquent.” The letter advised Mr. Cox that the taxes owing had to be paid by 4 p.m. on September 24, 2004 to avoid a tax sale, and the letter provided a telephone number Mr. Cox could call.
[14] Mr. Cox advised the Court that he responded to this letter in person and objected to the sale. He did not attend the tax sale, but, rather, commenced this action on September 27, 2004 seeking, amongst other relief, to have his home owner grants reinstated and unspecified damages.
[15] On August 5, 2005, all of the parties brought applications pursuant to Rule 18A of the Rules of Court, B.C. Reg. 221/90 seeking a summary resolution of Mr. Cox’s action.
[16] The respondents asked that Mr. Cox’s action be dismissed. In their submission, the only remedy available to Mr. Cox in these circumstances was a judicial review of Ms. Baltes’ decision that he was not entitled to the home owner grants, and that such a review should have been commenced by Petition, rather than by Writ of Summons. At the behest of counsel for the Crown, the chambers judge suggested to Mr. Cox that the hearing proceed as if it had been commenced as a Petition for judicial review. Mr. Cox did not agree that he could not pursue relief against the respondents by action, and he would not consent to having his action dealt with as a Petition for judicial review.
[17] At the conclusion of the hearing, the chambers judge agreed with the respondents that Mr. Cox’s action against the Crown and the City could not be maintained, and that his remedy lay in judicial review of the decision of Ms. Baltes. He dismissed Mr. Cox’s action against both respondents and, in so doing, he also commented adversely on the merits of Mr. Cox’s action.
[18] Mr. Cox appears to be of the view that his action was dismissed simply because he did not commence it by Petition. It is clear, however, that it was not the failure of Mr. Cox to commence the proceedings by way of Petition that led to the dismissal of his action, but, rather, his failure to pursue his remedy by way of judicial review of Ms. Baltes’ decision, rather than by action against these respondents. In these circumstances, Mr. Cox did not have a cause of action against either the Crown per se, or against the City. The City did not make any decision adverse to Mr. Cox, but simply gave effect to the finding of disentitlement made by Ms. Baltes, as it was statutorily bound to do.
[19] In the result, I conclude that the trial judge was correct in dismissing Mr. Cox’s action against both respondents, and I would dismiss the appeal.
“The Honourable Madam Justice Prowse”
I Agree:
“The Honourable Madam Justice Huddart”
I Agree:
“The Honourable Madam Justice Kirkpatrick”
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