British Columbia (Director of Civil Forfeiture) v. Onn, 2009 BCCA 402

In the Onn case, the Director of Civil Forfeiture had applied for and obtained an interim preservation order over the Defendant’s 7-acre property in Likely, BC, which had been used for a marijuana grow operation, allegedly operated by the Defendant’s nephew. The Director alleged that the Defendant was aware of and profited from the grow operation on her property. The Defendant denied this allegation.

The Supreme Court Chambers Judge found that there was a serious issue to be tried and granted the interim preservation order, pending a trial of the matter. However, he refused to grant certain terms of the interim preservation order sought by the Director, namely that Ms. Onn would:

“…continue to fulfill all the duties and obligations of an owner of real property and in particular, shall:

a. maintain the Property and anything affixed thereto in a good state of repair and to take all steps necessary to preserve and protect the Property, and to prevent waste of any manner, and ensure that all buildings, structures and fixtures are maintained, repaired, serviced and secured;

b. comply with all municipal and other work orders, building codes and bylaws as they related to the Property and any building, structure or fixture thereon;

c. pay all realty and property taxes and all charges for utilities including, where applicable, charges for power, water, sewage, gas, refuse collection and disposal, and condominium fees or other common area costs assessed or incurred in respect of the Property, as they become due, together with any arrears;

d. ensure that the Property is not used in any fashion that is contrary to any statute or regulation of Canada or British Columbia or any by-law of Likely; and

e. insure the Property and all buildings, structures and fixtures thereon against destruction or loss to a value equivalent to their replacement cost and maintain such policy of insurance in good standing.”

These terms, according to the Chambers judge, were overly broad to the point where they were unenforceable.

The Director appealed from this decision and the appeal was granted in part by the Court of Appeal, which stated that “the purpose of the order in the case at bar, is to preserve the value of the property.”

The only orders which the Court of Appeal refused to grant were those proposed in paragraph 7(d), which Madam Justice Garson determined would be unenforceable insofar as it related to matters which were not under the control of Ms. Onn.

“In my opinion sub-paragraph 7(d) is too broad and vague to be enforceable. A permissible order would be one that prohibits the owner from permitting a continuation of the specific alleged unlawful activity on the premises. To be clear, the order sought does not merely require the owner to comply with the law but rather to ensure that no unlawful act take place on her property. This may be unenforceable insofar as it imposes responsibility on the owner for the acts of others not subject to her control.”

All in all, this appeal was a victory for the Director of Civil Forfeiture, in that it allows him to impose positive obligations on a Defendant while an interim preservation order is in effect. This is a major loss for potential Defendants, who may be required to continue paying taxes and maintenance costs on properties that they will ultimately lose.

Decided by the BC Court of Appeal on September 21, 2009.
Click here for the full text of the decision.

Leave a Comment

Filed under Civil Forfeiture in British Columbia

Leave a Reply

Your email address will not be published. Required fields are marked *