'Scandalous remarks' strike a sour note with judge in Vernon neighbours dispute

Neighbours weren't so happy when this house started going up on Okanagan Landing Road in Vernon.

VERNON - Making inflammatory statements, allegations of deceit and scandalous remarks did not pay off in court for some Vernon residents trying to halt a neighbour’s lakefront home construction.

On the contrary, it will cost them, a Supreme Court Judge has ordered. Justice Gary Weatherill said in a March 29 judgement in Kelowna court that the groundless claims made by Okanagan Landing Road residents Lorena Zigarlick, and Nikki and Jamie Filipuzzi were ‘reprehensible.’

The statements were part of the trio’s petition seeking a judicial review of the City of Vernon’s decision to issue a building permit to Ryan and Rebekah Danchuk for a home on Okanagan Landing Road. Justice Weatherill dismissed that petition Feb. 15, 2017. 

The Danchuks argued the allegations of deceit made by the petitioners were "wanton and reckless" and were made against professionals in the community and in the public court record. The judge agreed. 

“My assessment is that in their (petitioners’) over-enthusiastic desire to set aside the building permit and at all costs, they chose to place very serious allegations of deceit before the court as if the allegations were true when the allegations were based solely on their own perceptions,” Weatherill said.

The dispute arose after the Danchuks bought the property and began construction on a new house, on the old foundation. Images from Google Maps around the time show the previous home was a small, single storey building.

This Google Street View photo, taken in June 2016, shows a small house on the property in question.
This Google Street View photo, taken in June 2016, shows a small house on the property in question.
Image Credit: Google Street View

The petitioners live across and immediately to the north of the property. They argued that the cinder block foundation was not a foundation under the B.C. Building Code and that the City’s decision to authorize construction was based on inaccurate and misleading information provided by the Danchucks for the purpose of deceiving the city. 

According to Weatherill, the permit was valid and the petitioners’ real reason for mounting the petition was to protect their lake views and side-yard privacy.

“I am satisfied that the entire foundation of the petition was flawed from the outset and had little chance of success. Many of the petitioners’ allegations in their affidavits were baseless. The affidavits were replete with arguments in the guise of facts. They contained hearsay. They put their opinions forward as facts and in the process made improper allegations of deceitful conduct by the Danchuks and their agents,” Weatherill said.

The judge concluded the petitioners' real motives were to protect their lake views and side-yard privacy.
The judge concluded the petitioners' real motives were to protect their lake views and side-yard privacy.

He said the statements were malicious and included “argument in the guise of evidence, scandalous remarks, personal opinions and groundless allegations of deceit.”

Weatherill took the step of awarding special costs to the Danchuks for the petitioners’ reprehensible conduct. He also said the case is a good example of why individuals should defer to decisions made by municipal bodies.

“Failure to do so would lead to wasteful, expensive and damaging legal disputes between private parties who, if upset with a decision the city has made, could come to court and easily hinder or obstruct the construction of their neighbour’s house for improper motives. Such a system could lead to the disintegration of the construction approval process and would delay and add unnecessary expense to construction in general. Municipalities have been entrusted with the responsibility of ensuring their building codes and adopted bylaws are complied with, within a broad range of discretion. Provided that discretion is exercised reasonably, it ought not to be fettered or interfered with.”

He also had a reminder for lawyers:

“… counsel in general are reminded and must recognize that affidavits should be confined to facts within the deponent’s direct knowledge and should contain only evidence that the deponent would be permitted to say if testifying in court.”

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