A judge has erred in a lawsuit involving a fire-damaged mansion in West Vancouver, a B.C. Court of Appeal judge has ruled.
According to a July 10 ruling, Rosa Donna Este’s application to overturn a court order that would require her to demolish the home was granted because the judge who made that ruling previously represented the municipality, and had sent emails in the past directly related to the home’s possible demolition.
The property at 2668 Bellevue Ave. was bought by Este and her mother Mina Esteghamat‑Ardakani in 2003.
In previous testimony, Este told the court she had lived in the house until 2015, when it was extensively damaged by a fire. It sat derelict for more than five years. In December 2020, the District of West Vancouver issued a demolition order for the home, after receiving complaints.
In 2021, Este applied for a permit to build a new house on the property, but her mother opposed that plan. The district denied the application.
Shortly after, Este applied for a judicial review of the decision and the demolition order, which was rejected by the appeal court.
Last December, a B.C. Supreme Court judge granted the district an injunction to prevent Este and others from interfering with the ordered demolition of the home.
In her most recent application to have that order overturned, Este argued that Justice Francesca Marzari had erred by not recusing herself because she should have been aware of her own bias on the matter.
Este claimed that before being appointed as a judge, Marzari had worked for the law firm that represented West Vancouver.
During the previous hearing, Este had raised this issue to the judge, but Marzari dismissed the application, stating that almost seven years had passed since she worked at the firm, and that she couldn’t remember ever being involved in Este’s case.
“I don’t recall being involved in this file whatsoever. I think it arose after my appointment,” Marzari commented at the time of the application.
Interests of justice necessitate granting the appeal, judge rules
But in his written ruling, appeal court Justice Bruce Butler said counsel for the district has recently alerted the court that Marzari, while practicing at the firm, had sent an email to district employees advising them on matters related to the possible demolition of Este’s home.
Butler said there’s merit to Este’s appeal.
“It is clear the judge was alive to the issue of a potential conflict arising from her past involvement with the district,” Butler said. “While she did not recall any involvement in the file, she clearly wanted to know if ‘there’s a chance I was somehow involved.’”
In her comments, Marzari said that if she had been involved that she would be concerned.
“However, the information regarding her prior involvement was not brought to the attention of the judge and the information was only provided by the district to Dr. Este last week,” Butler said.
The new information means that a person might reasonably conclude the judge, either consciously or unconsciously, would not decide the case fairly, Butler said.
He added that success of the appeal would prevent the district from removing Este from the property and executing the demolition order, at least until the matter is reheard in court or otherwise resolved.
“[But] the interests of justice necessitate granting leave to appeal,” Butler said.
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