| Victoria Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CAPITAL REGIONAL DISTRICT PLAINTIFF AND: THE RANGE NEIGHBORHOOD PUBS LTD., DEFENDANTS ___________________________________________________________ STATEMENT OF CLAIM ___________________________________________________________ Staples McDannold Stewart GEM:si __________ No.: 99 3300 IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CAPITAL REGIONAL DISTRICT PLAINTIFF AND: THE RANGE NEIGHBORHOOD PUBS LTD., DEFENDANTS WRIT OF SUMMONS |
| (Name and address of each Plaintiff) | CAPITAL REGIONAL DISTRICT c/o Staples McDannold Stewart Barristers and Solicitors 2nd Floor, 837 Burdett Avenue Victoria, B.C. V8W 1B3 |
| Name and address of each Defendant) | THE RANGE NEIGHBORHOOD PUBS LTD. Registered Office: 300 - 1111 Melville Street Vancouver, B.C. V6E 4H7 D. MANNING & ASSOCIATES INC. HALFWAY HOUSE (V.l.) LTD. __________ |
| No.: 99 3300 Victoria Registry (Sealed - Jul 19 1999) IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CAPITAL REGIONAL DISTRICT PLAINTIFF AND: THE RANGE NEIGHBORHOOD PUBS LTD., DEFENDANTS |
STATEMENT OF CLAIM
| 1. | The Plaintiff is a Regional District incorporated pursuant to the provisions of the Municipal Act, R.S.B.C. 1996, Chapter 323 (the "Regional District"). |
| 2. | The Defendant, The Range Neighborhood Pubs Ltd., is a company incorporated pursuant to the provisions of the Company Act, R.S.B.C. 1996, Chapter 62 (the "Company") and is the registered owner of those lands and premises located at 856 Esquimalt road, Victoria, British Columbia, and legally described as Parcel Identifier No.: 004-663-802, Lot 1, Section 11, Esquimalt district, Plan 12825, except that part in Plan 24950; and Parcel Identifier No.: 005-916-542, Lot 1, Section 11, Esquimalt District, Plan 6038 (the "Property"). |
| 3. | The Defendant D. Manning & Associates Inc. is the Trustee in Bankruptcy for the Company. |
| 4. | The Defendant Halfway House (V.l.) Ltd. is a company incorporated under the laws of the Province of Alberta and registered pursuant to the provisions of the Companies Act of the Province of British Columbia and carries on business under the name Esquimalt Inn; the Esquimalt Inn is located at the Property. |
| 5. | The Defendant Brian Mayzes is the Manager of the business premises Esquimalt Inn located at the Property. |
| 6. | The Defendants are the proprietors of the business premises located at the Property. |
| 7. | The Regional district has the jurisdiction under Section 523 of the Municipal Act, by virtue of paragraph 16, Division Xl of its Health Letters Patent authorized May 16, 1974. |
| 8. | Section 523 of the Municipal Act authorizes the Regional District, by bylaw, to "regulate persons, their premises and their activities, to further the care, protection, promotion and preservation of the health of the inhabitants of the municipality, including regulating by prohibiting the smoking or other use or consumption of tobacco products in classes of premises specified in the bylaw." |
| 9. | The Regional district on August 14, 1996 adopted Bylaw No. 2401 (the "Clean Air Bylaw") as amended. |
| 10. | The Clean Air Bylaw provides in Section 2(2) as
follows:
"No proprietor of a business shall permit a person to carry or have in his possession a burning cigarette or pipe containing burning tobacco, or to burn tobacco in any manner, inside any part of the business building, structure, or vehicles." |
| 11. | Proprietor is defined in Section 1 of the Bylaw
as follows:
"Proprietor means the person who controls, governs or directs the activity carried on within the building, place or premises referred to in this bylaw and includes the person actually in charge thereof." |
| 12. | Business is defined in the Clean Air Bylaw as
follows:
"Business means carrying on a commercial or industrial undertaking of any kind or nature by the provision of professional, personal or other service and includes an activity carried on by a government, government agency, Crown corporation, educational institution, municipality, Regional District, or charitable organization." |
| 13. | The Defendants as proprietors of the business located at the Property have contravened Section 2(2) of the Clean Air Bylaw by permitting persons to carry or have in their possession a burning cigarette or pipe containing burning tobacco or to burn tobacco in any manner inside any part of the business building or structure. |
| 14. | The Defendants have repeatedly permitted persons to smoke within the business premises, the particulars of which are within the knowledge of the Defendants and include: |
| (a) | Having taken no steps to advise their patrons of the Clean Air Bylaw; |
| (b) | Having provided ashtrays to their smoking patrons; |
| (c) | Having continued to serve smoking patrons; |
| (d) | Having warned the patrons on their public address system of the presence of Regional District enforcement staff; and |
| (e) | Having issued a Press Release indicating that the business premises located at the Property would not be complying with the Clean Air Bylaw. |
| 15. | Three separate warning letters have been received by the Defendants on April 10, May 3 and June 3, 1999, respectively. Each letter warned that a failure to comply with the provisions of the Clean Air Bylaw might result in the Regional District taking civil injunctive action to obtain compliance with the Clean Air Bylaw. |
| 16. | Additionally, on June 10, 1999, a further
demand letter was sent to the Defendants by the Regional District
solicitor advising that the failure to comply with the provisions of the
Clean Air Bylaw would result in the CRD considering whether to take
legal injunctive action and a demand that the Defendants comply with the
terms of the Clean Air Bylaw forthwith. |
| 17. | The Defendants have willfully refused to comply
with the provisions of the Clean Air Bylaw.
WHEREFORE the Plaintiff claims: |
| (a) | A Declaration that the Defendants have contravened paragraph 2(2) of the Capital Regional District Clean Air Bylaw No.1, 1996 as amended; |
| (b) | A mandatory injunctive Order that the Defendants comply with the Capital Regional District Clean Air Bylaw No. 1, 1996 forthwith; |
| (c) | A mandatory injunctive Order that the Defendants not operate their business at the Property located at 856 Esquimalt Road, Victoria, B.C. unless they do so in compliance with the Capital Regional District Clean Air Bylaw No. 1, 1996 as amended; |
| (d) | A mandatory injunctive Order that anyone having knowledge of this Order comply with this Order; |
| (e) | Costs; and |
| (f) | Such further and other relief as this Honourable Court seems just and appropriate in the circumstances. |
PLACE OF TRIAL: Victoria, British Columbia.
DATED at the city of Victoria, in the Province of British Columbia, this 15th day of July, 1999.
(signed)
Solicitor for the Plaintiff
This Statement of Claim is filed and delivered by Guy McDannold, of the firm of Staples McDannold Stewart, solicitors for the Plaintiff, whose place of business and address for delivery is 2nd Floor - 837 Burdett Avenue, Victoria, British Columbia, V8W 1B3 Telephone: (250) 380-774 Fax: (250) 380-3008
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