IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The disputant, 0927000 BC Ltd., is a corporation, registered pursuant to the Business Corporations Act, SBC 2002, c 57.  The Corporation owns the land and building at 33 West Hastings Street, in the city of Vancouver, province of British Columbia, where it operates a flophouse called, “Chelsea Hotel”.

[2]           At trial the disputant faced a total of 15 charges pursuant to the Fire Bylaw #8191, as follows:

[3]           Pursuant to the Vancouver Charter S.B.C. 1953, c.55, the City of Vancouver has authority to enact bylaws regulating civic conduct of individuals and corporations within its jurisdiction.

[4]           The City of Vancouver By-law 8191 commonly known as Fire Bylaw was in force until it was repealed by the City Council on July 21, 2015, and replaced by By-law No. 11312, which currently regulates standards for fire safety in buildings and facilities.  A cursory read of the amended document shows that not much has been changed insofar as regulations are concerned.  The new By-law adopts the British Columbia Fire Code.  At the time of the alleged commissioning of the violations, By-law 8191 was in force.

[5]           Chronology of events leading up to the laying of the foregoing charges is as follows:

[6]           The present case is one of the many cases concerning the SRAs or SROs with almost identical facts that regularly occupy the dockets of this Court, see for example, R. v. Picadilly Investments Ltd. 2008 BCPC 97 (CanLii), http://canlii.ca/t/1x1h0.  The most common feature of these cases is the abject squalor in which the residents dwell.  

[7]           The City called one witness.  Inspector Colin Macaulay, a fire inspector for the City of Vancouver Fire Department.  Two witnesses for the defence were: Ms. Jillian Skeet, who did not reveal any job title but described her role as being that of advocacy, lobbying and rendering general administrative and financial management assistance and help to Mr. Yahya Nickpour, who presumably is the operating mind of the Corporation; and, Keith Norwood, a general maintenance person who works at the Chelsea as well serving at three other properties owned by the Corporation or Mr. Nickpour.

[8]           The name “Chelsea Hotel”, should not conjure up thoughts of a tony, Bohemian retreat with necessary creature comforts that one likely associate with the original Chelsea district of London, famous for its annual flower show and for being a neighbourhood of choice for almost who-is-who in letters during the 19^th and 20^th century Britain.  Chelsea that sits atop the “Lost and Found Café” in Unit Block of West Hastings Street, using my youngest son’s terminology for similar properties, is “a certified dive”, although the café downstairs is quite cute.  There are 15 rooms on each of the second and third floors.  Occupants share one bathroom located on each floor.

[9]           The occupants of this collective dwelling place, are humans facing severe conditions of life.  In addition to the evidence adduced by both parties, I am able to take judicial notice of a fact that is well-known within the community that a majority of clientele using the SRO facilities are extremely poor, receiving some sort of financial assistance from the state, and are, in most cases, afflicted with mental health and therapeutic conditions including substance abuse and addictions.  In the absence of these so-called “independent and community living” places afforded by the SRO providers, their typical client would either be living on the streets or would be admitted as an in-patient in a psychiatric unit of a hospital or would be a full-time resident of a psychiatric hospital.

[10]        The parties agree that the offences charged are that of strict liability.  Exhibit 8 furnishes sufficient proof of actus reus respecting all 15 counts.  These being strict liability offences, the owners of the property may avoid liability by establishing due diligence, on the test of balance of probabilities.  That is, I must reflect upon the question: did the accused corporation undertake reasonable steps to ensure compliance with the material Bylaws.

[11]        Societies are organic structures, in a constant state of flux.  With our evolution into a complex industrial, more accurately as some sociologists and economists argue post-industrial society (see for, example, Bell, Daniel (1973, 1999), The Coming of Post Industrial Society: A Venture in Social Forecasting. New York: Basic Books), the very nature of our social contract has transformed.  Some hitherto reified values and principles at law succumbed to this overwhelming force of an evolving social contract.  The purity and sacrosanct nature of the notion of fault at common law underwent a significant makeover.  Mental element or mens rea was no longer a Holy Grail in the context of an ever-increasing body of public welfare regulations.

[12]        The raison d’être of establishing regulatory regimes is to establish a uniform standard of conduct for individuals or collectives, such as corporations or companies.  The objective of the state in doing so is to lead individuals and corporations into adopting meaningful, realistic, and reasonable practices that would reduce social or environmental costs and assuage common harm.

[13]        The offences created in Fire Bylaw are strict liability.  These are regulatory offences wherein the fault element is simple negligence rather than mens rea in the traditional sense.  In R. v. Sault Ste. Marie (1978) 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353 S.C.C., Mr. Justice Dickson wrote:

[14]        Notwithstanding negligence being the fault element of a strict liability offence, the prosecution need only prove actus reus beyond a reasonable doubt, leaving it open for the accused to avoid liability by proving on a balance of probabilities that they took reasonable care or acted under a reasonable mistake of fact.  In Sault Ste. Marie, supra, Dickson J, stressed the burden on the accused to establish “due diligence”, (see also, R. v. Metro News Ltd. (1986), 1986 CanLII 148 (ON CA), 56 O.R. (2d) 321, 53 C.R. (3d) 289, (C.A.), R. v. Pontes (1995) 1995 CanLII 61 (SCC), 100 C.C.C. (3d) 353 (S.C.C.)

[15]        I have no reason to doubt the narrative of Inspector Macaulay.  His testimony was unshaken.  In his testimony, Mr. Norwood did dispute location of some of the photographs.  He is at best an itinerant handy-person at Chelsea.  He works for Mr. Nickpour and his companies, taking care of minor repairs in his other properties, particularly another SRO, Persepolis.  He does not maintain an office space in the material property.  He does not have a regular schedule of visit on site.  He attends when a need is expressed by a facility manager.  When on stand, he demonstrated startling defensiveness coupled with fairly aggressive stance.  He worked through Exhibit 8; identified many photographs, which in his view, did not belong to Chelsea.  Others he tried to explain without providing any basis for his deductions.  Respectfully, he presented as a self-serving, rather flippant, and somewhat not very truthful witness, who is willing to do the bidding in protecting the interests of his employer.

[16]        I have no doubt that the photographs entered are a true representation of the condition of Chelsea on March 10, 2014.  These were not altered and were presented as is.  In sum, they furnish an objective and rather stark and graphic view inside Chelsea.  In R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, (S.C.C.), Mr. Justice Cory articulated the following for the majority:

[17]        Admittedly, the condition of Chelsea does not come even close to the condition of some other SRA facilities (see, for example, Picadilly, supra.), which could very well be reminiscent of the 19-century lodging houses that dotted the slums of the newly industrialising London of Charles Dickens.  In comparison, Chelsea seems decent enough place.  Nevertheless, multiplicity of Fire Bylaw violations render its clients seriously vulnerable and exposed to hazardous consequences of fire.  I take judicial notice of the tragic outcome of the fire of August 19, 2008, which burned the Columbus Hotel in Prince George, BC, causing three deaths.

[18]        While testifying, Mr. Norwood and Ms. Skeet laid the blame at the feet of the clientele of Chelsea, painting a rather Sisyphean picture that renders supervision of property or repairs futile.  Install a protective cap on the Fire Department connections, it would go missing forthwith; shut a door in fire separation, it would be wedged open immediately; clear accumulated combustible materials or obstructions around places of egress, more obstructive items would pile up rapidly.  In other words, together they painted a rather gloomy portrait of an urban wasteland inhabited by an assortment of the homeless, the destitute, the mentally challenged, the tramps, the junkies, the afflicted, all having one thing in common: they occupy our social, political, and perhaps legal blind spot; they exist outside our comfort level.  Perhaps an easy target to locate blame for the multiple lapses of the disputant.  However, I am not convinced that knowing their clientele, the disputant acted in a manner a reasonable and conscientious corporation would act.

[19]        The stark reality is that non-compliance of the Fire Bylaw could cause death and untold misery to a large number of human beings who may be faced with tremendous challenges to look after their own safety and security.  Mr. Nickpour emphasized utter disregard for property that was demonstrated by the residents at Chelsea and how no sooner a task is completed, it would be destroyed again.  As a landlord, Mr. Nickpour should have been cognisant of the nature of its clientele.

[20]        Reasonableness is not an absolutist construct.  It must be sought, found, examined, and analysed within the context and conceptual frame of Chelsea’s patrons, a highly vulnerable clientele with demonstrably severe mental illnesses and addictions.  As such, the threshold for establishing diligence in this case must be higher.

[21]        The lack of diligence in the area of housing for the hard-to-house members of our society would in all likelihood lead to tragic human, social and economic consequences.  In R. v. Wholesale Travel Group Inc. 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154, Mr. Justice Cory wrote that: “…It is absolutely essential that governments have the ability to enforce a standard of reasonable care in activities affecting public welfare.”  In my respectful view, the quantum for reasonableness must not be watered down to the point that the laudable purpose of the State in regulating our civic life is thwarted.

[22]        Chelsea is a lodging facility for individuals with multiple special needs.  The building is one hundred and ten years old, requiring constant care.  A majority of its patrons are mired in a tragic cycle of dispossession, helplessness, and the concomitant alienation.  Some of them are probably at the very end of their life; others may not have much control upon their circumstances.  Dispossession breeds alienation.  Professor Allen Wood of Cornell University suggests, alienation is, “A psychological or social evil, characterized by one or another type of harmful separation, disruption or fragmentation, which sunders things that belong together” (in Honderich, Ted (1995).  The Oxford Companion to Philosophy.  Oxford: OUP, p. 21).  Is it reasonable to expect individuals with demonstrably limited self-care skills and abilities to remain gracious, responsible, and conscientious guests of a lodging place?  What if the lodging place itself is a sad representation of the classic Hollywood post-apocalyptic scene of urban squalor or a minor improvement on the theme of penny-hangs?  Would a dilapidated place engender concern for its upkeep in the hearts of its patrons?

[23]        There is no evidence that the property was obtained by the disputants to run a charitable facility.  In 2012, when they bought Chelsea, they knew exactly what they were buying: management of an aging facility, subject to the SRA rules, to provide lodging to the hard-to-house individuals, afflicted with multiple conditions.  They knew very well Chelsea was not a sister hotel of Shangri-La.  The tenants would not pay “market rental rates” but pay what they receive as “rental allowance” from the State.  The state, in turn, is faced with the dichotomy of shrinking public resources and increasing public needs.  The disputant made a business decision, which one assumes was driven by the logic of the market place – investing for profit and growth.

[24]        When one chooses to locate inside a municipality they become subject to its regulations.  Owning a lodging house in the City of Vancouver is a regulated activity.  Employing a conscientious and erudite helper and advocate like Ms. Skeet or employing a handy person like Mr. Norwood or keeping a fire-safety company on a permanent retainer, are insufficient grounds for extinguishing an owner’s liability.  While having on hand a team of workers and helpers may indicate some diligence, the latter’s belief in the futility of their actions towards bringing the property in compliance, likely renders their toil or engagement less effective, perhaps even useless.

[25]        During his Court appearance, Mr. Nickpour, as stated earlier, an operating mind of the corporation, expressed helplessness and frustration with the “heavy-handed” approach of the City in enforcing the Fire Bylaw.  He did not testify.  For the most part, he maintained control over the conduct of the trial.  Ms. Skeet added to his arguments and submissions at the conclusion of trial.  In her submissions, Ms. Skeet demonstrated empathy and concern for the well-being of their clients.  She directed the Court to look into her track record of advocating for better housing conditions for the mental-health challenged and addicted humans of “Downtown Eastside (DTES) Vancouver”.

[26]        Ms. Skeet made a powerful submission.  She is ostensibly a thoughtful person with her heart in the good place.  As an “agent” of the owners, she demonstrated superior knowledge concerning the unique nature, presentiments and proclivities of their tenants.  In her submissions, however, rather than addressing the specifics, Ms. Skeet proffered a relevant and thoughtful, albeit much broad, critique of the relationship between the City and the SRA owners.  While I appreciate her passion and concern for the hard to house clientele of her employers, applying the rules of evidence, I did not find her testimony helpful in determining whether or not the offences alleged were committed.

[27]        Part of her submissions, presented a powerful sketch of the relationship between the SRA owners and the City.

[28]        I am sensitive to the tenor of her reflections.  That, when closing down the mental health residential facilities, the State, represented by the City as well as provincial and federal governments, failed to build proper network for a wide spectrum of services and supports crucial in the rehabilitation of the afflicted in the mainstream of our society.  A short walk through many of the downtown Vancouver streets affords powerful insights into the exceptionally distressing circumstances of the addicted and the afflicted human beings.  I also realise that the SRA facilities are probably insufficiently remunerated.  However, despite necessary compassion for and understanding of the circumstances of the SRA owners, it is important to note their task is limited to providing lodging facilities that are consistent with the provisions in City bylaws respecting safety, security, and comfort of the rent-paying residents.  Notwithstanding, the rectitude of the critical material reported in our media concerning the foregoing, the fact is that a fairly large number of therapeutic and other support services operate inside a fairly small postal code of “DTES”.  The owners of Chelsea are not expected to act as a therapeutic facility; they are only compensated by their clients to afford them safe housing.

[29]        The Fire By-Law, while being an essential regulatory instrument, is also an expression of our citizenship, or the manner in which we must ensure safety of the weak, the ill, the addicted, and the destitute in our midst.  In many ways than mere few, it serves as a minimum standard of safety that must be maintained in the collective dwelling places, especially the ones occupied by the foregoing.

[30]        An owner of a SRA facility, demonstrably cognisant of the conditions of his clientele, is expected to establish realistic and verifiable benchmarks for ascertaining the safety and security of its clientele.  The society at large rightfully expects that there would be proper controls, procedures, systems, and monitors in place, which on the one hand ensures safety of its tenants.  On the other, engenders respect for the premises.  Respectfully, the disputant has failed to do that.

[31]        The case of R. v. Gulf of Georgia Towing Co. Ltd., [1979] CanLii 483 (BCCA), <http://canlii.ca/t/23gjz>, Mr. Justice Seaton of our Court of Appeal underscored the contextual appropriateness of safeguards in the realm of public welfare:

[32]        The table below shows the counts charged and their nexus with the photographs snapped by Officer Macaulay during an inspection of the property on March 10, 2014.  Cumulatively these photographs were admitted into evidence as Exhibit 8.  The condition of the property as photographed was not contested by the defence.  Consequently, it is fair to say that these photographs portray the reality of the property on the material day, hence prima facie case for guilt for counts portrayed.

[33]        The Kienapple principle, as it has come to be known, assumes two disparate positions: (1) against multiple convictions arising from the same delict, and (2) against staying an indictment or a conviction for a greater offence when elements of a lesser offence charged are factually identical, requiring application of the principle (see R. v. Prince [1986] 2 S.C.R.)  In Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, the late Mr. Justice Laskin, as he then was, wrote:

[34]        Counts 3 and 4, concern testing, maintenance, and recharging of portable fire extinguishers.  There were two such extinguishers, one on each of the two floors, both had expired decals.  Counts 5 and 6, concern inspection and tagging of the emergency lighting system.  The element of the foregoing offences is negligence of the disputants to sufficiently monitor and hold to account the service providers entrusted with the task of maintaining these items.  In my view, the failure of disputant to ensure its contractors perform their task, is a single act which should not attract multiple convictions.  Applying the Kienapple principle, I am ordering stays on counts 4, 5, and 6.

[35]        The evidence in its entirety does not prove any diligence on part of the disputant.  They belatedly acted to get the fire extinguishers tested, fix the fire alarm system and exit lamps, remove piled up materials, find a solution to the fire separation doors being wedged open and vandalism of the protective caps on the fire equipment.  Their response followed a rather protracted process involving an inspection, at least two re-inspections, verbal and written warnings, and two orders from the Fire Department.  As a consequence, I respectfully, find the disputant guilty on counts 1, 2, 3, 7, 8, 9, 10, 11, 12, 13, 14, and 15.