



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Vancouver
                (City) v. Maurice,









2005 BCCA
            37




Date: 20050124

Docket: CA030345

Between:

City of
      Vancouver

Respondent

(
Plaintiff
)

And

Claude
      Maurice, Kerry Pakarinen
and Anton Pilippa

Appellants

(
Defendants
)

And

Craig Ballantyne,
      Jim Leyden, Jane Doe, John Doe and Other Persons Unknown, erecting, maintaining,
      or occupying tents, structures and other objects on City of Vancouver streets
      in the 100 block West Hastings Street, the 300 block Abbott Street, or
      the 100 block West Cordova Street, Vancouver, British Columbia

Defendants











Before:



The Honourable
            Madam Justice Rowles





The Honourable
            Madam Justice Prowse





The Honourable
            Mr. Justice Oppal









A.C. Ward and L.J. Tessaro



Counsel for the Appellants





T.M. Zworski



Counsel for the Respondent





Place and Dates of Hearing:



Vancouver, British Columbia





7 and 8 June 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





24 January 2005









Written
              Reasons by
:





The Honourable
            Madam Justice Rowles





Concurred
              in by:





The Honourable
            Madam Justice Prowse

The Honourable
            Mr. Justice Oppal





Reasons for Judgment
        of the Honourable Madam Justice Rowles:

I.    Overview

[1]

The
      appellants seek to overturn an interlocutory injunction granted to the
      City of Vancouver (the "City") on 22 November 2002, during a
      period of political and social protest about the lack of social housing
      for the poor and homeless in Vancouver.  In part, the protest took place
      on the sidewalks surrounding the former Woodward's department store building
      (the "Woodward's Building").

[2]

The
      appellants do not attack the legal foundation for the granting of the order
      under appeal.  There is no issue that the placement and maintenance of
      tents, shelters, mattresses and other objects and structures on City sidewalks
      around the Woodward's Building constituted an obstruction to the free use
      of those sidewalks and was in contravention of the City's
Street and
      Traffic By-law
(the "By-law").  Instead, the appellants seek
      to have the injunction set aside on procedural grounds.

[3]

The
      appellants argue that since
Everywoman's Health Centre Society (1988)
      v. Bridges
(1990), 54 B.C.L.R.(2d) 273 (C.A.)
,
it has become
      almost settled practice in British Columbia for corporations or government
      entities to attempt to quash political or social protest activities by
      inviting the courts to grant injunctions and then to exercise the court's
      powers to punish for contempt.  It is the appellants' submission that when
      the extraordinary remedy of an injunction is sought, the court must ensure
      that fundamental procedural safeguards are met.  The appellants argue that,
      in this case, the City failed to add as parties in the style of cause those
      persons who had filed Appearances to the City's action and that certain
      unrepresented persons were denied an opportunity to make submissions when
      the motion for the interlocutory injunction was heard.

[4]

The
      City does not dispute the appellants' basic proposition that when injunctive
      relief is sought, the procedures set out in the
Rules of Court
and
      the principles of fundamental justice must be followed.  The City's position
      is that neither the style of cause in its action nor its motion for injunctive
      relief were procedurally flawed and that the chambers judge was not in
      error in not adding parties and in exercising his discretion not to hear
      further from those persons who had filed Appearances but had not filed
      a Response to the City's interlocutory injunction application.

[5]

For
      the reasons which follow, I am of the view that the appellants' complaints
      of procedural error and their potential consequences are not well-founded
      in this case and that the appeal must be dismissed.

II.   Background

[6]

In
      September 2002, various people began to occupy the Woodward's Building
      and to camp on the sidewalks adjacent to it.  Tents,
mattresses and other objects were placed around the building in contravention
      of the City's

By-law.

[7]

The
      occupation of the Woodward's Building and the erection of structures on
      the sidewalks around the building were part of a social or political protest
      about the lack of social housing available for poor and homeless people
      in the Vancouver area.

[8]

On
      16 September 2002, the owner of the Woodward's Building obtained an interlocutory
      injunction prohibiting entry into the building.  On 21 September 2002,
      54 people were arrested in the building and were brought before the court.  Reasons
      for judgment in the appeals from orders made in those proceedings are being
      released contemporaneously with these reasons.

[9]

The
      City has the power to seek an injunction to enforce its by-laws by reason
      of ss. 334 and 571 of the
Vancouver Charter
, S.B.C. 1953,
      c. 55.

[10]

Outside
      the Woodward's Building, there was a changing population in the tents and
      other structures that had been put up by the protesters on the City's sidewalks.
On 30 October 2002, the City commenced an
      action naming five individuals as defendants (the "Named Defendants")
      in the style of cause.  The Writ also named as defendants "Jane Doe,
      John Doe and Other Persons Unknown, erecting, maintaining, or occupying
      tents, structures and other objects on City of Vancouver Streets in the
      100 block West Hastings Street, the 300 block Abbott Street, or the 100
      block West Cordova Street, Vancouver, British Columbia."

[11]

The
      appellants are three of the Named Defendants.

[12]

Between
      31 October 2002 and 2 November 2002, the Writ was served on the Named Defendants.  As
      well, the City had 32 copies of the Writ handed out to persons present
      on the sidewalks outside the Woodward's Building and a further 81 copies
      of the Writ were left inside the tents, shelters, couches and on mattresses
      on the sidewalks outside the building.

[13]

By
      15 November 2002, 34 people, including the five Named Defendants, had filed
      Appearances to the City's action.  The fact that m
any
      of those filing Appearances did not include an address for delivery, as
      required by the
Rules of Court
, may reflect the fact that
      a number of the protestors were apparently homeless.  However, the City
      went to considerable lengths to ensure that notice was given to all those
      who might be affected by an application for an injunction.  On this appeal,
      no issue arises from the fact that the Appearances failed to comply with
      the
Rules of Court
.

[14]

Between
      5 and 10 November 2002, the City served the Named Defendants as well as
      the majority of other persons who had filed Appearances to the action with
      a Notice of Motion for an interlocutory injunction.  The Notice of Motion
      and supporting materials were served mainly on individuals on the sidewalks
      around the Woodward's Building.  The Notice of Motion showed the date for
      hearing as 19 November 2002.

[15]

Eight
      persons, four of whom were the Named Defendants, Claude Maurice, Kerry
      Pakarinen, Anton Pilippa and Craig Ballantyne, delivered Responses to the
      City's Notice of Motion.  Those who delivered Responses
were
      represented by counsel at the hearing of the City's injunction application.  None
      of the other persons served with the Motion and materials delivered a Response
      to the City's motion.

[16]

The
      hearing of the interlocutory injunction application took two days. The
      eight individuals who had filed Responses and an intervenor, the British
      Columbia Civil Liberties Association, appeared by counsel to oppose the
      City's applica­tion.  Near the end of the second day of the hearing of
      the City's application, eight persons, who had not filed Responses to the
      City's application but who said they had filed Appearances, asked to address
      the court.  The chambers judge agreed to permit them to make submissions
      but specifically cautioned them not to give oral evidence and to limit
      them­selves to making submissions.  Despite the caution, the first four
      speakers attempted to offer unsworn evidence.  After the fourth person
      had spoken, there was cheering and clapping in the courtroom.  At that
      point, the chambers judge refused to hear from any more of the unrepresented
      persons.
The identities
      of the four individuals who were not permitted to address the court are
      unknown.

[17]

The
      chambers judge found that there was a clear contra­vention of the By-law
      and that there were no exceptional circumstances present and consequently
      granted the injunction the City sought.  No issue is taken with the findings
      made by the chambers judge.

[18]

In
      its material part, the order under appeal reads as follows:

THIS COURT ORDERS
      that:

1.    the Defendants
      and all other persons having knowledge of this order remove all structures
      or objects belonging to them, or used by them, which are located upon City
      of Vancouver streets or any part thereof, in the 100 block West Hastings
      Street, the 300 block Abbott Street, and the 100 block West Cordova Street,
      Vancouver, British Columbia by noon on Monday, November 25th, 2002;

2.    the Defendants
      and all other persons having knowledge of this Order be prohibited and
      restrained, from noon on Monday, November 25th, 2002 until the trial of
      this matter or further order of this Court, from constructing, placing,
      or maintaining structures or objects upon City of Vancouver streets or
      any part thereof, in the 100 block West Hastings Street, the 300 block
      Abbott Street and the 100 block West Cordova Street, without having first
      obtained written consent from the City of Vancouver Engineer;

3.    this injunction
      Order does not prohibit or limit the right of the Defendants, or any other
      persons, to lawfully assemble on any street or any part thereof;

4.    for the
      purposes of this Order:

(a)   "structures and objects" include tents,
      sofas, chairs, mattresses, tarpaulins, tables, buckets, shopping carts,
      traffic delineators, traffic cones, wood pallets and other items or objects,
      and any other items which encroach on or obstruct the free use of the street;
      and

(b)   "street" includes public road, lane,
      and sidewalk, and any other way normally open to the use of the public;

5.    the Plaintiff
      shall distribute and post copies of this Order to give sufficient notice
      to the Defendants as to the terms of this Order; and

6.    the approval by the Parties as to form of this
      Order be dispensed with except for approval by Counsel present at the pronouncement
      of this Order.

[19]

The
      order was served on the Named Defendants and copies were distributed to
      persons on the sidewalks around the Woodward's Building.

[20]

On
      29 November 2002, the City brought a further motion before the court and
      obtained an order permitting the City Engineer to remove the structures
      and objects on the City's streets.  The order reads as follows:

THIS COURT ORDERS that:

1.    the City
      Engineer and any person directed by him be authorized to remove any structures
      and objects which are located upon City of Vancouver streets, or any part
      thereof, in the 100 block West Hastings Street, the 300 block Abbott Street,
      and the 100 block West Cordova Street, Vancouver, British Columbia;

2.    the Defendants
      and all other persons having knowledge of this Order be prohibited and
      restrained from interfering with or obstructing the City Engineer, or any
      person directed by him, from removing any structures or objects pursuant
      to this Order;

3.    any police
      officer of the Vancouver Police Department be authorized to arrest and
      remove any person who the police officer has reasonable and probable grounds
      to believe is interfering with or obstructing, or is attempting to interfere
      with or obstruct, the City Engineer, or any person directed by him, from
      removing any structures or objects pursuant to this Order;

4.    any police
      officer of the Vancouver Police Department who arrests and removes any
      person pursuant to this Order be authorized to:

(a)   bring such person before this Court at Vancouver,
      British Columbia forthwith for the purpose of being proceeded against for
      contempt of Court, or for fixing a time for such proceedings, and the police
      officer may detain such person until it is possible to bring such person
      before the Court; or

(b)   release that person, once the police officer is
      satisfied that the person will no longer contravene the provisions of this
      Order.

* * *

6.    the approval by the Parties as to the form of
      this Order be dispensed with except for approval by Counsel present at
      the pronouncement of this Order.

[21]

Although
      the latter order was obtained by the City, no enforcement action was necessary
      and no contempt proceedings were ever brought in relation to the interlocutory
      injunction the City had been granted.  The structures were removed from
      the City's sidewalks in early December 2002.

III.  Grounds of Appeal

[22]

The
      grounds of appeal, as set out in the appellants' factum, are that the chambers
      judge:

(i)   ... erred in failing to grant unrepresented persons
      who had filed Appearances the opportunity to be heard before granting the
      Respondent an injunction.

(ii)  ...
      erred in failing to ensure that identified persons were before the Court.

IV.   The Appellants' Arguments

[23]

Although
      the grounds of appeal concern procedural matters, appellants' counsel urged
      us to consider the significance of the points raised in the context of
      the loss of liberty that may occur when an interlocutory injunction has
      been granted and enforcement proceedings are taken.  In the appellants'
      submission, there can be no doubt that applications for interlocutory injunctions
      in cases such as the one at bar are brought for the purpose of effecting
      the arrest of any and all persons who are considered to be interfering
      with the rights of the party bringing the application.  The appellants
      argue that where a civil proceeding could result in a remedy that deprives
      persons of their liberty through the enforcement and arrest provisions
      contained in a court order, the court should be scrupulous in ensuring
      that the principles of fundamental justice and fairness are followed.

[24]

The
      appellants argue that an interlocutory injunction is an extraordinary discretionary
      remedy and that the discretion to grant such relief must be exercised with
      caution.  To support those submissions, the appellants referred us to
Aetna
      Financial Services v. Feigelman
, [1985] 1 S.C.R. 2.

[25]

Relying
      on
British Columbia (Attorney General) v. Wale

(1986),
      9 B.C.L.R. (2d) 333 (C.A.), the appellants further argue that injunctive
      relief should only be granted when it is "just and equitable in all
      the circumstances of the case".

[26]

As
      to the importance of the procedural points raised, the appellants submit
      that it is trite to assert that the civil justice system is founded on
      the concept of notice and on principles of fundamental justice, including
      affording the parties to an action the opportunity to be heard.

[27]

As
      noted earlier, in this case the City commenced an action against five actual
      persons as well as "Jane Doe, John Doe and Other Persons Unknown".  The
      appellants argue that the terms John Doe and Jane Doe are "misnomers" in
      that they are ordinarily used to refer to identifiable but unascertained
      persons and that once the identities of the persons are ascertained, real
      names ought to be substituted.  To support that argument, the appellants
      referred to
Jackson v. Bubela and Doe
, [1972] 5 W.W.R. 80
      (B.C.C.A.),
Davies v. Elsby Bros. Ltd.
, [1960] 3 All E.R.
      672 (C.A.), and Fraser and Horn,
Conduct of Civil Litigation in British
      Columbia
, Issue 33, looseleaf (Vancouver: Butterworths, 1978) vol.
      1 at c. 5, para. 7.4.

[28]

The
      appellants submit that when injunctions are granted summarily to restrain "Jane
      Doe, John Doe and Other Persons Unknown", injustices can and do occur
      because the effect or consequences of granting injunctive relief cannot
      necessarily be foreseen when those against whom the order may be enforced
      have not had an opportunity to be heard.

[29]

In
      this case, some 34 persons had filed Appearances before the application
      for an injunction came on for hearing.  The appellants contend that the
      City ignored the fact that, as a result of the Appearances having been
      entered, there were ascertained defendants, but the City did not seek to
      add them as parties, even though serious consequences, including loss of
      liberty, could follow a failure to obey the injunction being sought.

[30]

The
      appellants further argue that the unrepresented persons ought to have been
      allowed to prepare and to address the court on the merits of the injunction
      application.  Although no reasons or examples were provided, the appellants
      assert that had all the unrepresented persons who had filed Appearances
      been allowed to speak, the result may have been different.

V.    Discussion

[31]

In
      this case, the City commenced an action in the Supreme Court of British
      Columbia relying on the provisions of the By-law authorizing the City to
      remove obstructions from the sidewalks.  The City then sought an interlocutory
      injunction to enforce the By-law and restrain continuation of its contravention.  As
      noted earlier, the appellants do not attack the legal foundation for the
      granting of the interlocutory injunction, which is the order under appeal.  The
      placement and maintenance of tents, shelters, mattresses and other objects
      and structures on City sidewalks around the Woodward's Building constituted
      an obstruction to the free use of those sidewalks and contravened the City's
      By-law.

[32]

Sections
      334 and 571 of the
Vancouver Charter
, S.B.C. 1953, c. 55,
      specifically give the City the power to seek an injunction to enforce its
      by-laws.  Section 334 provides:

334.  Without limiting the right to enforce any proprietary, contractual
      or other rights, where an offence is committed against any by-law passed
      in the exercise of the powers of the Council or the Board of Parks and
      Recreation, in addition to any other remedy provided or penalty imposed,
      the continuance of such offence may be restrained by action of the city
      or the Board of Parks and Recreation as the case may be, or by action at
      the instance of a registered owner of real property in the city.

[33]

It
      is true that it was open to the City to enforce its By-law by prosecution
      under the
Offence Act
, R.S.B.C. 1996, c. 338.  It is also
      true that the decision whether to prosecute or to seek injunctive relief
      was one for the City to make.  In this case, City officials were apparently
      of the view that the injunction process would be more effective in restraining
      continuing contravention of the By-law than would be a prosecution under
      the
Offence Act
.

[34]

Contrary
      to the submissions made by the appellants, where a public authority, such
      as the City, turns to the courts to enforce an enactment, it seeks a statutory
      rather than an equitable remedy, and once a clear breach of an enactment
      is shown, the courts will refuse an injunction to restrain the continued
      breach only in exceptional circumstances:
Maple Ridge (District)
      v. Thornhill Aggregates Ltd.
(1998), 47 M.P.L.R. (2d) 249 (B.C.C.A.),
      and

British Columbia (Minister of Forests) v. Okanagan Indian Band

(2000),
      187 D.L.R. (4th) 664 (B.C.C.A.).

[35]

The
      following passage from the decision in
City of Toronto v. Polai

(1969),
      8 D.L.R. (3d) 689 at 696-697 (Ont. C.A.), aff'd [1973] S.C.R. 38, 28 D.L.R.(3d)
      638, is useful in explaining the role of a city corporation in the enforcement
      of its by-laws:

As members of the
        city corporation the inhabitants are entitled to look to the duly elected
        representatives who comprise the municipal council for enforcement of
        the provisions of by-laws passed for their protection, and in enforcing
        those by-laws the corporation, whether by means of a prosecution or in
        a suit for injunctive relief, acts on behalf of all the inhabitants
.  The municipality, acting through its council
        and duly appointed officials, occupies in a more restricted sense the
        same position as does the Attorney-General who represents the Crown in
        its capacity as
parens patriae
charged with the responsibility
        of enforcing the rights of the public when they are violated.  The decision
        whether or not the Attorney-General should prosecute or sue is a matter
        for him, and the Courts have no power to question his right to do so
        or to refrain from doing so as distinct from his right to relief.

[Underlining added.]

[36]

In
      this case, the relief the City sought in its Writ was directed entirely
      to the contravention of the City's By-law.  The specific relief sought
      included:

a.    a
      declaration that the Defendants have constructed, placed or maintained
      Structures on City of Vancouver sidewalks in contravention of the
Street
      and Traffic By-law
of the City of Vancouver;

* * *

c.    a permanent injunction restraining the Defendants
      or anyone acting on their behalf and all other persons to whom notice of
      the order may be given, by themselves, their servants or agents, from constructing,
      placing or maintaining Structures on City of Vancouver streets or sidewalks;

d.    an interlocutory injunction restraining the Defendants
      or anyone acting on their behalf and all other persons to whom notice of
      the order may be given, by themselves, their servants or agents, from constructing,
      placing or maintaining Structures on City of Vancouver streets or sidewalks;

e.    an
      interlocutory mandatory injunction requiring the Defendants to remove all
      Structures belonging to or used by then from City of Vancouver streets.

[37]

Some
      of the appellants' arguments raise issues surrounding the use of "John
      Doe", "Jane Doe" and "Persons Unknown" in the
      style of cause in proceedings in which injunctive relief is sought.  With
      deference, the thrust of those arguments overlooks important points decided
      by the Supreme Court of Canada in
MacMillan Bloedel Ltd. v. Simpson
,
      [1996] 2 S.C.R. 1048.  In that case, issues were raised as to whether the
      courts can make orders against unidentified persons not named in the action
      or named only in proxy as "Jane Doe" and "John Doe"
.
Those
      issues were squarely before that court because of the dissent of Wood J.A.
      in this Court, who concluded that court orders are binding only on named
      parties to the action and that the epithets "John Doe, Jane Doe and
      Persons Unknown" did not make members of the public parties to the
      action.

In his opinion, the proper remedy when mass protest action
      threatens to overrun private rights is for the Attorney General to enforce
      the criminal law
.

[38]

In
MacMillan
          Bloedel Ltd. v. Simpson
, McLachlin J., as she then was, speaking
          for a unanimous court, made clear, at paragraph 23, that "non-parties
          who violate injunctions may be found in contempt of court" and
          that "non-parties may be seen as being, if not technically
bound
          by the order, bound to obey the order.
" [Underlined in original.]  The
          distinction between being bound by an injunction and being bound to
          obey an injunction and the use of language that alerts non-parties
          to the risk of violation was discussed by McLachlin J. at paragraphs
          30 and 31:

Canadian judges
      considering the problem of mass violations of private rights have made
      less of the distinction between being bound by an injunction (confined
      to parties) and being bound to obey an injunction (not confined to parties).  In
Bartle & Gibson
      Co. v. Retail, Wholesale and Department Store Union, Local 580
, [1971]
      2 W.W.R. 449 (B.C.C.A.), Tysoe J.A., considering a submission that non-parties
      should not be described in an order, stated (at p. 455):

I find it a little difficult to understand why, if it is true 
      and it is, of course, quite true that persons who, with knowledge of an
      order, take any steps to assist in contravening it, may be proceeded against
      for contempt of court  why the order should not provide that it covers
      somebody who, having knowledge of the order, disobeys it.

A similar recognition
      that anyone who violates a court order, whether a party or not, may be
      charged with contempt of court seems to underlie the comment of Estey J.,
      speaking for this Court in
International Longshoremen's Association,
      Local 273 v. Maritime Employers' Association
, [1979] 1 S.C.R. 120,
      at p. 144:

However [language enjoining non-parties] has, for many years, been adopted
      in these injunctions ... no doubt for the good reason that
it makes
      the impact and sense of the order clear to all those likely to be affected
      thereby
and, in any event, such wording can hardly be said to harm
any
      of the persons in law affected by the order
. [Emphasis [of McLachlin
      J.].]

In other words, since
      persons other than named parties may be affected by the order, and be held
      in contempt for violating it, it makes good sense to use language which
      alerts those people to that risk. More recent English authority suggests
      that courts there, too, may be coming to see the practical value of such
      an approach. Thus, in
Attorney General v. Newspaper Publishing plc,
[1987]
      3 All E.R. 276 (C.A.), at pp. 314-15, Balcombe L.J. commented that in an
      appropriate case it may be "preferable" for the court to make
      its initial protective order in terms which make it clear to members of
      the public who may be affected by the order that they also are required
      to obey it.

It may be confidently asserted, therefore, that both English and
      Canadian authorities support the view that non-parties are bound by injunctions:
      if non-parties violate injunctions, they are subject to conviction and
      punishment for contempt of court. The courts have jurisdiction to grant
      interim injunctions which all people, on pain of contempt, must obey. The
      only issue -- and one which has preoccupied courts both in England and,
      to a lesser extent, here -- is whether the wording of the injunction should
      warn non-parties that they, too, may be affected by including language
      enjoining the public, or classes of the public, from committing the prohibited
      acts. On this point I share the view of Tysoe J.A. in
Bartle & Gibson,
      supra,
and Estey J. in
International Longshoremen's Association,
      supra
: if members of the public may be bound to respect court orders
      in private suits on pain of being held in contempt, it seems appropriate
      that the order apprise them of that fact.

[39]

On
      the issue of whether the use of "John Doe", "Jane Doe" and "Persons
      Unknown" invalidated the order and what the procedure is for objecting
      to such an appellation, McLachlin J. said, at paragraphs 38 to 40:

The second issue
      is whether the use of terminology such as "John Doe", "Jane
      Doe" and "Persons Unknown" in the style of cause invalidates
      the order. The appellants argue that these terms represent an attempt to
      sue the general public, and that such terms are not justified under the
      British Columbia Rules of Practice and the principles developed under the
      Rules.

The practice
      of using terms like "John Doe" is directed at permitting a plaintiff
      to sue a person whose name the plaintiff does not know:
Jackson v. Bubela
      and Doe
, [1972] 5 W.W.R. 80 (B.C.C.A.). Under the British Columbia
      Rules, the procedure for objecting to such an appellation is to apply to
      have the terms struck out. Alternatively, an application by the plaintiff
      to have the defendant's name substituted for "John Doe" for the
      purpose of obtaining relief against him may be dismissed if the use of
      the "John Doe" designation is found to have been inappropriate.
      We have been referred to no authority suggesting that an order made under
      a valid action is invalid because the style of cause of the action included
      a reference to "John Doe, Jane Doe and Persons Unknown".

In fact, the use of "John Doe, Jane Doe and Persons Unknown" in
      the present action appears to be surplusage. As discussed above, a person
      who is not a party to an action is bound to respect an order made in the
      action, on pain of being found in contempt of court. This was the procedure
      used to enforce the order here at issue. None of the protesters was charged
      or sued as a party to the action.
So
      the question whether relief may be obtained against them
in the action
on
      the basis of having sued them as "John Doe, Jane Doe and Persons Unknown" never
      arose. Accordingly, it is unnecessary for this Court to decide whether,
      as a matter of pleading, the use of these terms in the style of cause could
      validly engage members of the public served with the writ.

[40]

As
      against the background, I turn now to the specific points raised by the
      appellants in their grounds of appeal.

[41]

The
      appellants contend that the chambers judge "erred in failing to ensure
      that identified persons were before the Court."  T
he appellants argue that the City, after having included "Jane
      Doe, John Doe and Other Persons Unknown" as defendants in the Writ,
      was obliged to add as named defendants each of the individuals who entered
      Appearances to the action before being able to take any further proceedings
      against them.

[42]

In
      my opinion, the reference to "Jane Doe, John Doe and Other Persons
      Unknown" in the style of cause in this case did not impose on the
      City, or the court, any procedural obligation to add any persons as parties
      as a result of their having filed Appearances before the chambers judge
      could make a valid interlocutory order.

[43]

The
      City's action and the interlocutory application that is the subject matter
      of this appeal were governed by the
Rules of Court
in the
      same way the action and application would have been had the City only included
      the Named Defendants.

[44]

In
      addition to four of the Named Defendants, 30 persons filed Appearances
      in the City's action.  However, none of those persons applied to be added
      as parties to the action or to amend the style of cause.  In other words,
      the chambers judge was not asked to make any order with regard to the addition
      of parties to the action.

[45]

After
      an action is commenced, parties may be added or substituted and the style
      of cause amended only with the leave of the Court: see
Martin and
      Corbett v. British Columbia

(1986), 3 B.C.L.R. (2d) 60 (S.C.),
      and

Rule 15(5) of the
Rules of Court.

[46]

Rule
      15(5) of the
Rules of Court
governs removing, adding or substituting
      parties.  It specifically provides that "at any stage of a proceeding,
      the court
on application by any person
" may order that a person
      be removed, added or substituted as a party to the proceeding.  In this
      case, the persons who had filed Appearances could have applied to be added
      as parties but in the absence of such an application, it appears to me
      that the chambers judge could not be said to have erred when he heard the
      City's application on the basis of the existing style of cause and pleadings.

[47]

Apart
      from the fact that there was no application or order made with regard to
      adding or substituting parties, I note that there is no indication of any
      prejudice being occasioned to those who had entered Appearances but were
      not added as parties.  Under the
Rules of Court
, a person
      does not have to be a named party to obtain standing at an inter­locutory
      application.  It is sufficient that the person may be affected by the order
      which is sought, in which case the person may deliver and file a Response
      under Rules 44 and 51A of the
Rules of Court
.  In this case,
      eight individuals appeared by counsel to oppose the City's application,
      although only four of them were Named Defendants.  Of the other four, only
      three had filed Appearances.  However, all eight had delivered and filed
      Responses as required by the
Rules of Court
and, therefore,
      had a right to appear at the hearing of the interlocutory application.

[48]

The
      appellants were served with the Writ and the application materials.  There
      is no suggestion that they did not have enough time to prepare their Responses,
      and they were represented at the hearing by counsel.  Other Named Defendants
      were also served with the Writ and the application materials.  As noted
      earlier, some of the Appearances did not include an address for delivery,
      but the City went to some length to ensure that notice of the City's application
      for an interlocutory injunction was given to all those who had erected
      structures and objects around the Woodward's Building.  The application
      materials were served on most of the persons who had filed Appearances.  The
      City's process server attended at the sidewalks around the Woodward's Building
      on a number of occasions to serve the application materials.  There is
      no evidence that any affected person was not aware of the City's application
      or the hearing date.

[49]

I
      agree with the City's submission that the chambers judge did not err when
      he allowed the application to proceed on the basis of the existing style
      of cause and pleadings.

[50]

The
      other ground advanced by the appellants is that the chambers judge "
erred in failing to grant unrepresented persons
      who had filed Appearances the opportunity to be heard before granting the
      Respondent an injunction".

[51]

Generally
      speaking, there is no unqualified right to participate in a hearing of
      an interlocutory application.  The
Rules of Court
, which
      are aimed at ensuring fairness to both sides, prescribe the procedures
      that must be followed by all persons before the court.

[52]

An
      interlocutory application is governed by Rules 44 and 51A of the
Rules
      of Court
. Under Rule 44(5), the applicant is required to serve
      all parties of record and all persons affected by the order sought with
      the Notice of Motion and supporting materials.  Any person who wishes to
      respond to the application must deliver to the applicant a Response and
      materials he or she intends to rely on within the prescribed time limits.  Rule
      51A, which sets out the procedure for interlocutory applications, specifically
      defines "respondent", at subsection (2), as the person who has
      delivered a Response.

[53]

Under
      Rules 44 and 51A, only those who have delivered a Response have the right
      to oppose the application.  Therefore, neither the four unrepresented persons
      who were allowed to speak, nor the four unknown persons who were not, were
      entitled under the
Rules of Court
to participate in the hearing
      as of right.  To hold otherwise would negate the clear requirements of
      Rule 44(6) and would tend to invite hearings by ambush.  Nonetheless, no
      one would suggest that the chambers judge was wrong in agreeing to hear
      from those who had filed Appearances and who said they wished to make submissions.

[54]

The
      chambers judge had inherent jurisdiction to control the process and to
      maintain order within the courtroom.  It was pursuant to that authority
      that the chambers judge exercised his discretion to allow persons who had
      not filed Responses to speak:
R. v. Hothi
, [1985] 3 W.W.R.
      256 (Man. Q.B.), aff'd [1986] 3 W.W.R. 671, leave to appeal to S.C.C.
      refused [1986] 5 W.W.R. lxviii.

[55]

It
      was also within the chambers judge's discretion, once it became clear that
      the speakers continued to offer unsworn evidence and without contributing
      anything relevant to the issues before the court, to refuse to hear from
      any additional persons.


[56]

Appellate
      courts are reluctant to interfere with the exercise of discretion in such
      circumstances and will do so only where it can be said that the decision
      was so clearly wrong as to amount to an injustice.  The appellants have
      not provided any foundation from which such a conclusion could be drawn.

[57]

As
      discussed above, once a breach of an enactment is established, a statutory
      injunction will only be refused in exceptional circumstances.  In this
      case, the appellants have not put forward any material or argument that
      would support the possibility that exceptional circumstances existed in
      this case that could have altered the outcome of the City's application.

VI.   Summary and conclusion

[58]

For
      the reasons given, I am of the view that in this case the reference to "Jane
      Doe, John Doe and Other Persons Unknown" in the style of cause did
      not impose upon the City or the court any procedural obligation to add
      those who had filed Appearances as parties to the proceedings.  I am also
      of the view that there is no basis upon which this Court could properly
      interfere with the discretion exercised by the chambers judge in refusing
      to hear from some of those who had filed Appearances but not Responses
      to the City's application.

[59]

I
      would dismiss the appeal.

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Madam Justice Prowse

I Agree:

The Honourable
Mr. Justice Oppal


