Okanagan-Similkameen (Regional District) v ... - Rdosmaps.bc.ca

2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach 

IN THE SUPREME COURT OF BRITISH COLUMBIA 

Citation: 

Okanagan-Similkameen (Regional District) 

v. Leach, 

2012 BCSC 63 

Date: 20120118 

Docket: 31634 

Registry: Penticton 

Between: 

And 

Regional District of Okanagan-Similkameen 

Robert George Leach and Cari Diane Leach 

Claimant 

Respondents 

Before: The Honourable Madam Justice Dardi 

Reasons for Judgment 

Counsel for the Claimant: 

Counsel for the Respondents: 

Place and Date of Trial: 

T.A. Duerr 

D.J. Mildenberger 

Penticton, B.C. 

May 10-11, 2011 

Written submissions received: May 18, 2011 

June 17, 2011 

Place and Date of Judgment: 

Penticton, B.C. 

January 18, 2012 

INTRODUCTION 

[1] The defendants Robert George Leach and Cari Diane Leach, who are husband and wife, are the 

registered owners of property at 3585-4 th Street, Naramata, British Columbia (the “Property”). The Property 

is located within the Regional District of Okanagan-Similkameen in an area presently zoned “Residential 

Single Family One Zone” (RS1) under the Regional District’s Electoral Area “E” Zoning Bylaw No. 2459, 

2008 (the “2008 Zoning Bylaw”). Since 2005, the Defendants have rented their Property as a weekly vacation 

rental without being present at the Property during those rentals. 

http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]


[2] The plaintiff, the Regional District of Okanagan-Similkameen (the “Regional District”), seeks a 

declaration that the defendants are utilizing the Property as a “commercial tourist accommodation” in 

contravention of the Regional District’s bylaws (the “Bylaws”); it also seeks an injunction restraining the 

defendants from continuing to use the Property as a vacation rental. 

[3] Pursuant to the agreement of counsel this matter proceeded by way of summary trial. The trial 

proceeded on affidavits, admissions made by the defendants pursuant to a Notice to Admit, and excerpts 

from the defendants’ discoveries read in by the Regional District’s counsel. I am satisfied that I am able to 

decide the issues on the evidentiary record before me and to do so would not be unjust. 

[4] Before turning to the analysis it is necessary to summarize the pertinent facts, to outline the positions 

of the parties, and to identify the key provisions of the Bylaws. 

FACTS 

[5] The essential facts are not in contention. 

[6] The Property is the defendants’ second home which they use as a vacation home. They reside at the 

Property one to three months each year. 

[7] The defendants acquired the Property in 2004, and in or about 2005, the defendants began renting out 

the Property, primarily on a weekly basis, for use by vacationers (“the Vacation Rentals”). The Vacation 

Rentals were advertised via a website. The website was operated by the defendant Robert Leach for the 

purpose of advertising the rental of the Property, providing contact information for the defendants to those 

interested in renting, facilitating the booking of rentals, providing schedules of dates and times available for 

rental and providing pictures and information regarding the Property. The defendants are the only people 

who have carried on the Vacation Rentals. Mr. Leach’s sister answers some calls from time to time, but she 

receives no remuneration for her services. 

[8] The Vacation Rentals provide for weekly rental of the Property with full use of the primary dwelling 

located on the Property. The Property was rented out an average of five weeks per year, primarily in the 

summer months, during the years of 2005 through to 2009. The defendants made the Property available for 

rent to one family or group ranging from two to eight people at a time. The longest period of rental to any 

single family was three weeks. The defendants did not operate the Vacation Rentals as a bed and breakfast. 

They were not present at the Property during the currency of the Vacation Rentals. 

[9] Zoning Bylaw No. 1566, 1995 (the “1995 Zoning Bylaw”) was the governing bylaw when the 

defendants began operating the Vacation Rentals. 

[10] From May to August of 2007, the Regional District received complaints from citizens concerning the 

ongoing vacation rental operation on the Property. On July 10, 2007, Roza Aylwin, who was then a planning 

technician with the Regional District, wrote to the defendants to advise them that their use of the Property as 

a tourist accommodation business was contrary to the applicable zoning bylaws. 



[11] On September 7, 2007, the Regional District demanded that the defendants cease the Vacation 

Rentals and the advertising associated with those rentals. 

[12] On November 15, 2007, the Regional District repealed the 1995 Zoning Bylaw and replaced it with the 

Regional District’s Electoral Area “E” Zoning Bylaw No. 2373, 2006 (the “2006 Zoning Bylaw”). 

[13] On December 20, 2007, the Regional District’s counsel sent the defendants a letter demanding that 

they immediately bring to an end all vacation rental use and related advertising. The letter requested that the 

defendants confirm they had done so within 21 days, failing which enforcement proceedings would occur 

without further notice. 

[14] The defendants continued to operate the Vacation Rentals on an intermittent basis from 2006 through 

to 2009. 

[15] On July 4, 2008, the Regional District received another complaint regarding the use of the Property as 

a tourist accommodation. 

[16] On November 6, 2008, the 2006 Zoning Bylaw was repealed and replaced with Zoning Bylaw No. 

2459, 2008 (the “2008 Zoning Bylaw”). 

[17] The defendants commenced renovations to the Property in 2009. As a result of the renovations which 

carried on into 2010, the Defendants did not rent the Property in 2010. The defendant Mr. Leach deposed 

that: 

ISSUES 

I had many inquiries about rentals and had to defer the requests to 2011 as the renovation timeline 

dragged on longer than I expected. Part of this delay was due to the fact that I was carrying out most 

of the work on my own. 

[18] The heart of this dispute is whether or not the defendants are in breach of the 2008 Zoning Bylaw and, 

if so, whether they can rely on the defence of lawful non-conforming use. 

[19] I will analyze the issues under the following headings: 

(1) Has there been a breach of the 2008 Zoning Bylaw 

(2) If yes, can the defendants rely on the defence of lawful non-conforming use This turns on: 

Whether the Defendants’ use of the Property was “lawful” under the 1995 Zoning Bylaw which 

governed at the time the use began; and 

Whether the defendants have continued their use within the meaning of s. 911 of the Local 

Government Act, R.S.B.C. 1996, c. 323 (the “LGA”). 

POSITION OF THE PARTIES 



Plaintiff’s Position 

[20] The Regional District’s overarching submission is that the use of the Property to provide short-term 

vacation rentals without the defendants being present is prohibited by each of the 1995, 2006, and 2008 

Zoning Bylaws. It seeks a declaration that the defendants are utilizing the Property as a “commercial tourist 

accommodation”. 

[21] In developing its primary contention, the Regional District argues that the defendants’ operation of their 

tourist accommodation business contravenes each of the three Zoning Bylaws because the rental does not 

fit within the prescribed list of permitted uses under the RS1 Zoning. It asserts that the rental of the property 

contravenes the use as a “single-family dwelling” (within the meaning of the 1995 Zoning Bylaw) or as a 

“single detached dwelling” (within the meaning of the 2006 and 2008 Zoning Bylaws (the “2006/2008 Zoning 

Bylaws”)). 

[22] The Regional District says that to allow persons to provide temporary accommodation with a singlefamily 

or single detached dwelling would render the Bylaws ineffectual or superfluous. 

Defendants’ Position 

[23] As a general posture the defendants assert that the Regional District’s position is not supported on a 

proper interpretation of the Bylaws. The defendants argue that: 

(a) the 2008 Zoning Bylaw does not prohibit the defendants’ use. The defendants assert that their 

use, which includes short-term rentals, falls within the permitted principal use in the 2008 Zoning 

Bylaw as a “single detached dwelling” - the defendants, their guests and renters all use the 

dwelling unit for living and sleeping purposes; 

(b) alternatively it is a permitted secondary use as “private visitor accommodation”; and 

(c) the 1995 Zoning Bylaw did not prohibit the defendants’ use and consequently their use currently 

qualifies under s. 911 of the LGA as a lawful non-conforming use. 

[24] The defendants challenge the Regional District’s characterization of their use as a “commercial tourist 

accommodation”. They point out that there is no reference to the phrase “commercial tourist accommodation” 

in any of the Bylaws. 

[25] The defendants note that short-term rentals have always been common in residential neighbourhoods 

in Naramata. They do not dispute, however, that the Regional District is not required to enforce every breach 

of every bylaw. Its failure to prosecute a large number of violations of a particular bylaw does not invalidate a 

prosecution of a violation of that bylaw: Coquitlam (City) v. Aweryn, 2000 BCSC 777 at para. 13, aff’d 2001 

BCCA 373, citing with approval Burnaby (City) v. Pocrnic (1999), 6 M.P.L.R. (3d) 250 (B.C.C.A.) and Polai v. 

Toronto (City), [1973] S.C.R. 38. Moreover, the right of a municipality to rely upon the provisions of its bylaws 

cannot be waived, lost or vitiated by acquiescence, laches, or estoppel (Langley (Township) v. Wood, 1999 

BCCA 260). 



STATUTORY FRAMEWORK 

1995 Zoning Bylaw 

[26] The authority for a local government to pass bylaws to regulate the use of land is s. 903 of the LGA. 

[27] Part V, s. 4 of the 1995 Zoning Bylaw provides for a general prohibition against any use not expressly 

permitted in each zone. It proscribes as follows: 

In each zone created under Part V, Section 1 of this Bylaw: 

(A) 

(B) 

the only uses permitted are those listed in respect of each zone under the heading “Permitted 

Uses” in Section 1 to 21 of Part X of this Bylaw; and 

uses not listed in respect of a particular zone are prohibited. 

[28] Lands in the RS1 Zone are permitted to be used only for the following purposes: 

a) single family dwelling, 

b) parks and playgrounds, 

c) home occupations, 

d) buildings and structures auxiliary to all of the above uses. 

[29] A “single family dwelling” is defined as: 

a building, excluding single wide and double wide mobile homes, that: consists of one dwelling unit; 

is located on an approved continuous perimeter foundation; and is occupied or intended to be 

occupied by one family. 

[30] A “dwelling unit” is defined as: 

one or more habitable rooms constituting one self-contained unit with a separate entrance, and used 

or intended to be used for living and sleeping purposes for not more than one family and containing 

only: one kitchen equipped with a sink and one set of cooking facilities; one or more bathrooms with 

a water closet, wash basin and bath or shower, and; not more than one electrical service; 

[31] “Family” is defined as: 

1. an individual or two (2) or more persons related by blood, marriage, adoption or foster 

parenthood sharing one dwelling unit; or 

2. not more than five (5) unrelated persons living together as a non-profit group in a dwelling unit 

and using a common cooking area. 

[32] A “home occupation” is defined as: 

an occupation or profession which is ancillary and subordinate to the use of a dwelling unit for 

residential purposes or the residential use of a parcel occupied by a dwelling unit; (emphasis added) 

[33] Part IV, s. 13 provides further restrictions and requirements for home occupations. For instance, no 

more than 50 square meters of a dwelling may be used in conjunction with a home occupation and only the 



inhabitants of the principal dwelling may own the home occupation on the site occupied by the principal 

dwelling unit. 

[34] A “bed and breakfast”, which is defined as “an occupation conducted within a principal dwelling unit by 

the residents of the dwelling unit”, is a permitted form of home occupation. 

[35] A Tourist Commercial/Heritage Zone (CT4) has “hotels” as one of its permitted uses. 

2006/2008 Zoning Bylaws 

[36] Section 6.4 of the 2006/2008 Zoning Bylaws again provides a general prohibition against all uses not 

listed in any respective zone: 

In each zone created under Section 6.1 of this Bylaw: 

1. The only uses permitted are those listed in respect of each zone under the heading “Permitted 

Uses” in Section 10.0 to 15.0 of this Bylaw; and 

2. uses not listed in respect of a particular zone are prohibited 

[37] The permitted uses of lands in the RS1 Zone contained in s. 11.1.1 of the 2008 Zoning Bylaw are 

identical to those contained in s. 11.1.1 of the 2006 Zoning Bylaw. The restrictions on home occupations (s. 

7.17) and private visitor accommodations (s. 7.19) in the 2008 Zoning Bylaw are nearly identical to those in 

the 2006 Zoning Bylaw. Similarly, the definitions of principal and secondary use (s. 4) are virtually identical in 

both the 2008 Zoning Bylaw and the 2006 Zoning Bylaw. 

[38] With respect to lands in the RS1 Zone, the 2006 and 2008 Zoning Bylaws list “single detached 

dwelling” as the only permitted principal use. A single detached dwelling is defined as meaning “a detached 

building consisting of one dwelling unit that does not exceed a width-to-length ratio of 1:4, and has a 

minimum width of 5.0 metres”. 

[39] A “dwelling unit” is defined as meaning “one or more habitable rooms constituting one self-contained 

unit which has a separate entrance, and which contains washroom facilities, and which is designed to be 

used for living and sleeping purposes”. 

[40] The 2006/2008 Zoning Bylaws list the permitted secondary uses, including: 

(c) 

... 

(f) 

home occupations, subject to Section 7.17 (Section 7.11 in the 2006 Zoning Bylaw); 

private visitor accommodation, subject to Section 7.19 (Section 7.13 in the 2006 Zoning 

Bylaw). 

[41] A “principal use” is defined as meaning “the main purpose for which the parcel, building or structure is 

used”. Secondary Use is defined as meaning “a use that is permitted only in conjunction with a designated 

principal use for each zone”. 

[42] With respect to home occupations, s. 7.17(2) of the 2008 Zoning Bylaw (s. 7.11(2) of the 2006 Zoning 



Bylaw) states that “no more than 50% of the floor area to a maximum of 75 m 2 of a principal dwelling unit 

must be used in connection with the home occupation”. 

[43] The term “private visitor accommodation” is a separate category from a home occupation and is not 

subject to the same restrictions. Section 4 of the 2006/2008 Zoning Bylaws provides the following definition 

for “private visitor accommodation”: 

an occupation conducted within a principal dwelling unit, by the residents of the dwelling unit, which 

provides sleeping accommodations to the traveling public (Provincially exempt). A bed and breakfast 

operation is a form of private visitor accommodation and includes the provision of a morning meal for 

the persons using the sleeping accommodations. 

[44] A “principal dwelling unit” is defined as a “principal residential unit” that: “(b) is used or intended for 

use as a residential premises, ...”. 

[45] The term “residential” is not defined anywhere in the 2006/2008 Bylaws; however, “residence” is 

defined as a “permanent or seasonal home on a lot”. 

[46] There is no indication in the 2006/2008 Bylaws as to what is meant by “Provincially exempt”. 

[47] Section 7.19 of the 2008 Zoning Bylaw (s. 7.13 of the 2006 Zoning Bylaw) states that: 

a private visitor accommodation, which includes a bed and breakfast operation, is permitted where 

listed as a permitted use, provided that: 

1. it is located within one principal dwelling unit on the parcel, and not permitted in conjunction 

with a secondary suite; 

2. no more than eight (8) patrons shall be accommodated within the dwelling unit; 

3. not more than three (3) bedrooms shall be used for parcels less than 0.8 ha, and not more than 

four bedrooms for parcels greater than 0.8 ha; 

4. no cooking facilities shall be provided for within the bedrooms intended for the private visitor 

accommodation operation; 

5. no patron shall stay within the same dwelling for more than thirty (30) days in a calendar year; 

and 

6. only the residents of the principal dwelling unit may carry on the private visitor accommodation 

on the site occupied by the principal dwelling unit. 

[48] Section 6.4.3 was introduced in the 2008 Zoning Bylaw and proscribes that “the headings in respect of 

each zone are part of this Bylaw”. 

[49] The heading in s. 7.19 of the 2008 Zoning Bylaw for “private visitor accommodation” is entitled “Private 

Visitor Accommodation (Bed and Breakfast)”. “Bed and breakfast” is defined as “a form of ‘private visitor 

accommodation’ conducted within a principal dwelling unit which provides sleeping accommodations to 

visitors and includes the provision of a morning meal for those persons using the sleeping accommodations”. 

ANALYSIS 



General Legal Framework 

[50] Bylaw interpretation is grounded in the well-settled principles of the modern approach to statutory 

interpretation. Recently, in North Pender Island Local Trust Committee v. Conconi, 2010 BCCA 494, at para. 

13, the Court of Appeal, quoting Elmer Driedger, The Construction of Statutes (Toronto: Butterworths, 1974) 

at 67, affirmed that: 

... the words of an [enactment] are to be read in their entire context, in their grammatical and ordinary 

sense harmoniously with the scheme of the [enactment], the object of the [enactment], and the 

intention of [the legislative body that passed the enactment]. 

[51] With respect to interpreting zoning bylaws, the Court in North Pender Island Local Trust Committee 

articulated the governing principles which inform the analysis: 

14 In interpreting zoning or land use bylaws, one must have regard to their general purpose. 

That purpose was described in I.M. Rogers, Canadian Law of Planning and Zoning (Toronto: 

Carswell, 1973), which was cited with approval in Whistler (Resort Municipality) v. Miller, 2001 BCSC 

100, 20 M.P.L.R. (3d) 128 at para. 51, aff’d 2002 BCCA 347, 32 M.P.L.R. (3d) 29, as follows: 

The principal purpose of zoning regulations, as with restrictive covenants, is to preserve 

property values by prohibiting uses which are believed to be deleterious to neighbourhoods 

mainly residential in character ... 

[52] In Neilson v. Langley Township (1982), 134 D.L.R. (3d) 550, Hinkson J.A. summarized the general 

interpretive principle at para. 18: 

In the present case, in my opinion, it is necessary to interpret the provisions of the zoning by-law not 

on a restrictive nor on a liberal approach but rather with a view to giving effect to the intention of the 

municipal council as expressed in the by-law upon a reasonable basis that will accomplish that 

purpose. 

[53] Each bylaw must be interpreted within its own particular context and in light of its own wording. As a 

result, definitions in other cases are of little assistance: Conconi, at para. 25. 

[54] A statute is presumed not to have superfluous words or provisions and the courts should presume that 

all words were included for a specific purpose and should be given effect .The rule of effectivity was 

described by Ruth Sullivan in Driedger on the Construction of Statutes, 5 th ed. (Markham, ON: LexisNexis, 

2008) at 210: “every word in a statute is presumed to make sense and to have a specific role to play in 

advancing the legislative purpose”. 

[55] As a result of the presumption of implied exclusion, in cases where a permitted use is expressly listed 

in one zone, but not another, the courts have found that the municipality intended to exclude that specific use 

from the more general provision: Regional District of Kootenay Boundary v. McKay, 2008 BCSC 174. 

[56] For instance, in S.R.V. Developments Ltd. v. Courtenay (City) (1992), 12 M.P.L.R. (2d) 154 (B.C.S.C.), 

aff'd 42 M.P.L.R. (2d) 261 (C.A.), the Court considered whether the general classification of "retail and 

wholesale outlets”, which was permitted in a C-2 zone, also included liquor stores. The bylaw expressly used 



“liquor store” in the C-1 zone. The Court held that it was open to the municipality to limit the ordinary 

definition of words, in this case “retail and wholesale outlets”. By application of the principle of implied 

exclusion, the Court concluded that by using "liquor store" in C-1, the municipality had removed the term 

"liquor store" from the more generic classification of "retail and wholesale outlets” such that the liquor store 

was not a permitted use in the C-2 zone. 

[57] In Thomas C. Watkins Ltd. v. Cambridge Leaseholds Ltd., [1966] S.C.R. v. (unreported), the zoning 

bylaw established five different commercial zones. All five zones listed "retail stores" as a permitted use but 

only one listed "department store" as a permitted use. The issue was whether the expression "retail store" 

included a department store. McGillivray J.A., dissenting at the Ontario Court of Appeal, held that by making 

the two items separate and distinct in the bylaw, the municipality intended to draw a distinction between the 

two terms, even though, as a generic term, "retail store" would normally include a department store. On 

appeal, the Supreme Court of Canada expressly adopted the dissenting reasons of McGillivray, J.A. The 

relevant portions of the judgment of McGillivray, J.A. were subsequently cited with approval by the Supreme 

Court of Canada in Bayshore Shopping Centre v. Nepean (Township), [1972] S.C.R. 755. 

Issue 1: Has there been a breach of the 2008 Zoning Bylaw 

[58] The first question that arises with respect to compliance with the 2008 Zoning Bylaw is whether the 

defendant’s present use of the Property qualifies as a permissible principal use; namely, as a single detached 

dwelling in the RS1 Zone. 

[59] The Regional District asserts that the defendants’ use of the Property is not a permitted principal use in 

the RS1 Zone. The Regional District relies on the prohibitive clause in the 2008 Zoning Bylaw which prohibits 

any use in a given zone other than those uses which are expressly permitted. 

[60] The defendants submit that their principal use of the Property is as a single detached dwelling. In 

support of this position, they emphasize that their use of the Property is not limited to the Vacation Rentals. 

They refer to their various non-renting uses - such as using the Property themselves, letting friends and 

family use it, or simply leaving the Property vacant - and maintain that the permissible primary use as a 

single detached dwelling is satisfied by all of them, regardless of whether the defendants are physically 

present at the Property. 

[61] The defendants assert that as a corollary to the principle of implied exclusion, the Court, in finding that 

a particular use is prohibited in a zone, must find that the particular use falls clearly within some other class 

of use in another zone. The defendants contend that there is no other category of use that expressly 

captures their present use of the Property as a short-term vacation rental. In particular, the defendants say 

that their use is not more appropriately classified as a motel, hotel, or resort, which are expressly permitted in 

other zones. Therefore, they say their use as a short-term vacation rental should presumptively be permitted 

in the zone for residential single detached dwellings. 

[62] It emerges from the authorities that the provisions in the 2008 Zoning Bylaw must be interpreted 

purposively and within the context of the bylaw as a whole. 



[63] I am not persuaded that the general prohibitive clause is only engaged if the challenged use more 

appropriately fits in another class of uses in another zone. Rather the appropriate inquiry is to examine what 

is permitted in a given zone; any other uses are prohibited. 

[64] A “single detached dwelling” is defined as “a detached building consisting of one dwelling unit that 

does not exceed a width-to-length ratio of 1:4, and has a minimum width of 5.0 metres”. This definition refers 

solely to the structure, not to any activities in the dwelling. However, a “dwelling unit” is defined as meaning 

“one or more habitable rooms constituting one self-contained unit which has a separate entrance, and which 

contains washroom facilities, and which is designed to be used for living and sleeping purposes” (emphasis 

added). The only restriction with respect to the activities that are permissible in the use of a dwelling unit is 

that it must be designed to be used for living and sleeping purposes. There is no express provision which 

states that the dwelling unit must be put to a “residential” use. 

[65] However, the heading, which is a part of the 2008 Zoning Bylaw by virtue of s. 6.4.3, describes the 

RS1 Zone as a “Residential Single Family One Zone”. The Court must interpret the provisions so as to give 

effect to the Regional District’s intention as reasonably expressed in the bylaw. In my view the intention of 

the Regional District as expressed through the heading is that the single family dwelling must be put to a 

“residential use”. Notably, the term “residential” is not defined anywhere in the 2008 Zoning Bylaw. 

[66] The plain meaning of “residential” is connected with or pertaining to a residence. “Residence” is 

defined in the 2008 Zoning Bylaw as referring to a “permanent or seasonal home on a lot”. 

[67] The meaning of the terms “residential” and “reside” were considered by the BCCA in Kamloops (City) 

v. Northland Properties Ltd., 2000 BCCA 344 where the Court of Appeal stated as follows at para. 14: 

... they refer to having one’s home in a particular place “for a considerable length of time”, and define 

“residential” to mean “occupied mainly by private houses”... 

[68] Black’s Law Dictionary, 8th ed. (St. Paul: West Pub. Co., 2004) at 1335 defines residence as: 

The act or fact of living in a given place for some time. 2. The place where one actually lives, as 

distinguished from a domicile. Residence usually just means bodily presence as an inhabitant in a 

given place; domicile usually requires bodily presence plus an intention to make the place one's 

home. A person thus may have more than one residence at a time but only one domicile. 

Sometimes, though, the two terms are used synonymously. ... 

[69] In Whistler (Resort Municipality) v. Miller, 2001 BCSC 100, the primary authority relied upon by the 

Regional District, the term "residential" was expressly defined in the bylaw as meaning a fixed place of living, 

excluding any temporary accommodation, to which a person intends to return when absent. The term "tourist 

accommodation" was also defined as meaning a building containing one or more habitable rooms or dwelling 

units that are used primarily for temporary lodging by visitors. The Court held at para. 23 that it was 

therefore: 

...untenable to suggest that the rental of a detached dwelling to short term paying guests is a normal 



and customary residential use. ...this is particularly true in the context of the Bylaw where 

Residential/Tourist Accommodation Zones have been established and in which detached dwelling 

and tourist accommodation uses are expressly permitted. 

[70] In the 2008 Zoning Bylaw, unlike the bylaw considered by the Court in Whistler, there is no express 

provision to oust temporary accommodation as a permissible use in the RS1 Zone. This renders the analysis 

in Whistler distinguishable. 

[71] I do accept, nonetheless, that on the principles articulated by the Court in Whistler, the rental of a 

detached dwelling to short-term paying guests is not a normal and customary residential use in the sense of 

being the principal use for this type of property. 

[72] Significantly, the 2008 Zoning Bylaw defines a “secondary use” as “a use that is permitted only in 

conjunction with a designated principal use for each zone”. The 2008 Zoning Bylaw includes a list of 

permissible secondary uses for each zone. “Private visitor accommodation” is expressly permitted as a 

secondary use in the RS1 Zone. It follows, that the explicit listing of private visitor accommodation as a 

secondary use demonstrates that the Regional District did not intend for short-term vacation rentals to fall 

within the scope of the approved principal use as a single detached dwelling. Applying the principles of 

effectivity and implied exclusion, I conclude that short-term vacation rentals are not permissible as a principal 

use in the RS1 Zone. On a proper interpretation of the 2008 Zoning Bylaw, short-term vacation rentals are 

only permissible as a secondary use in the RS1 Zone if these rentals qualify as “private visitor 

accomodation.” 

Whether the defendants have been lawfully using the Property as a “private visitor 

accommodation” 

[73] Having determined that short-term vacation rentals are only permissible as a secondary use in the 

RS1 Zone, the question in this case is whether the defendants’ use of the property qualifies as “private visitor 

accommodation” and if so, whether the defendants’ use is secondary to the principal residential use of the 

Property as a single detached dwelling. 

[74] A “private visitor accommodation” is defined as “an occupation conducted within a principal dwelling 

unit, by the residents of the dwelling unit, which provides sleeping accommodation to the traveling public 

(Provincially exempt)”. A bed and breakfast operation is stated to be “a form of private visitor 

accommodation”. 

[75] It emerges from the submissions that there are three principal objections to the Vacation Rentals 

qualifying as private visitor accommodation under the 2008 Zoning Bylaw: 

(1) by definition – the occupation must be conducted within a principal dwelling unit, by the residents 

of the dwelling unit, 

(2) pursuant to s. 11.1.1 private visitor accommodation is permitted only as a secondary use in the 

RS1 Zone, 



(3) pursuant to s. 7.19.6 only the residents of the principal dwelling unit may carry on the private 

visitor accommodation on the site occupied by the principal dwelling unit. I note parenthetically 

that there was no suggestion that the defendants contravened the provisions of ss. 7.19.1- 

7.19.5. 

[76] I will address each of these issues in turn. 

(i) Are the defendants the “residents” of the Property 

[77] As a threshold issue the defendants must properly be characterized as “the residents” of the Property. 

The 2008 Zoning Bylaw does not define the term “resident”. 

[78] The authorities mandate that where some, but not all, terms have been defined in a bylaw, the courts 

must not apply a restrictive meaning to an undefined term; that term should be ascribed its ordinary meaning. 

[79] The Court of Appeal in Neilson applied this principle in determining what meaning should be given to 

the term “golf-course” in a bylaw. The Court noted that other terms in the bylaw had been defined in the 

schedule, and the effect of defining these terms restricted the meaning that might otherwise be attributed to 

such terms. However, no such restrictions had been imposed with respect to the term “golf-course”. The 

Court concluded therefore that “golf-course” was intended to have a broad meaning and that anything that 

can be regarded as reasonably coming within the operation of a golf-course was a permitted use: see also 

Castle Trucking Ltd. v. Central Saanich (District), [1994] B.C.J. No. 2045 (Q.L.)(S.C.). 

[80] The law has recognized that a person may have more than one residence: see e.g. Fox v Stirk, 

Ricketts v Registration Officer for the City of Cambridge, [1970] 3 All E.R. 7 at 11-12. Significantly, the 2008 

Zoning Bylaw indicates that a “residence” can be either a permanent or a seasonal home, which implies that 

“residency” and “residents” can be either permanent or seasonal as well. 

[81] In my view, in applying the ordinary meaning of the term “residents”, the defendants are properly 

characterized as residents of the Property. Although they do not reside at the Property full-time, they have 

resided there for some time each year since 2004. They spend between one to three months a year at the 

Property. The defendants return to the Property habitually. They have undertaken renovations of the 

Property. The critical and uncontroverted evidence of the defendants is that the Property is their second 

home; there was no evidence adduced to refute this characterization. 

[82] In summary on this issue, I am satisfied that for the purpose of carrying on the visitor accommodation, 

the defendants are the residents of the Property. 

(ii) Was “private visitor accommodation” the secondary use 

[83] The next issue for determination is whether the defendants’ “private visitor accommodation” is properly 

characterized as a secondary use of the Property. 

[84] The uncontroverted evidence is that the Property was only rented out for approximately five weeks per 



year. The defendants live there themselves for approximately one to three months per year. The Property is 

vacant much of the time, and is used by the defendants’ friends and family about two weeks per year. 

[85] I am satisfied that the overall use of the Property as a private visitor accommodation is not the 

principal use.Rather it is a secondary use in conjunction with the defendants’ overall residential use of the 

Property. 

(iii) Does s. 7.19.6 require the residents to be on site 

[86] The Regional District forcefully asserts that the 2008 Zoning Bylaw requires the residents of a property 

to be on site during the provision of private visitor accommodation to ensure that the use of the property is 

consistent with a residential neighbourhood. 

[87] The essential question thus is whether or not in order for the use to qualify as private visitor 

accommodation, s. 7.19.6 requires that a resident be on site when they rent out their property. For the 

reasons set out below, I am not persuaded that the section can reasonably be interpreted to include such a 

requirement. 

[88] I first address the contention by the Regional District that private visitor accommodation is intended to 

refer exclusively to a bed and breakfast operation and therefore the residents are required to be on site 

during any short-term rentals. 

[89] With respect to the submission that the term “private visitor accommodation” is intended to refer 

exclusively to a bed and breakfast, I am not persuaded that this is a tenable proposition based on a plain 

reading of the 2008 Zoning Bylaw. The definition of “private visitor accommodation” describes a bed and 

breakfast operation as a form of private visitor accommodation. Likewise, s. 7.19 describes private visitor 

accommodation as including a bed and breakfast operation. The 2008 Zoning Bylaw clearly contemplates 

forms of private visitor accommodation beyond a bed and breakfast operation. I therefore reject the position 

taken by the Regional District that private visitor accommodation is intended to refer to bed and breakfasts 

exclusively. 

[90] There is no provision in the 2008 Zoning Bylaw which expressly stipulates that the residents of a 

property must be on site during the use of the property as a private visitor accommodation. On a plain 

reading of the definition of a private visitor accommodation, it is clear that only the residents of a principal 

dwelling unit may conduct the business of the private visitor accommodation. Similarly, s. 7.19.6 states that 

only the residents of the principal dwelling unit may carry on the private visitor accommodation on the site 

occupied by the principal dwelling unit. Does this require the residents to be “on site” Or does it simply 

mean that if someone is to be carrying on the private visitor accommodation on site, it can only be the 

residents that do so In my view, the words of the provision reasonably support the latter interpretation. 

[91] Section 7.19.6 plainly sets out a restriction on who may carry on a visitor accommodation on site, not 

on where the resident must be during the use of the property as a private visitor accommodation. There is no 

principled basis, either through statutory interpretation or by application of the relevant jurisprudence, to 



interpret the provision as importing a requirement that the resident be on site during the private visitor 

accommodation. 

[92] The Regional District points out that the Court may consider evidence of administrative interpretation 

in order to resolve any ambiguities in a bylaw: Conconi, at para. 29. Contrary to their submission, however, I 

am not persuaded that the 2008 Zoning Bylaw is ambiguous insofar as it refers to “residents” in the definition 

of “private visitor accommodation” or in s. 7.19.6. 

[93] For completeness I have nonetheless considered Ms. Aylwin’s evidence, to which she deposed in May 

2011, after she was promoted to the role of Bylaw Enforcement Coordinator, that the Regional District’s 

administrative and enforcement staff have consistently interpreted s. 7.19.6 of the 2008 Zoning Bylaw as 

requiring the residents of a principal dwelling unit to be present on site if they wish to use their property for 

the purpose of providing private visitor accommodation in the RS1 Zone. However, In her affidavit on the 

point she purports to use the term “resident” interchangeably with the terms “occupier” and “inhabitant”, which 

terms are not referenced in the provisions regarding “private visitor accommodation”. 

[94] The authorities direct that the courts are to interpret bylaws so as to give effect to the intention of the 

municipal authority as expressed in the bylaw on a reasonable basis: Neilson, at para. 18. I am not 

persuaded that, on an objective analysis, the interpretation advocated by the Regional District is expressed 

in the 2008 Zoning Bylaw. 

[95] The parties made submissions on the applicability of the presumption of validity and whether the 

disputed provisions are intra vires the Regional District under the LGA. In view of my findings it is 

unnecessary to address those submissions. 

[96] In the result, I conclude that the defendants, in compliance with the 2008 Zoning Bylaw, have been 

lawfully operating their private visitor accommodation as a secondary use of their single family dwelling. 

[97] This is sufficient to dispose of this application. However, for completeness, I turn to consider the 

application of the doctrine of lawful non-conforming use. 

Issue 2: Can the defendants rely on lawful non-conforming use 

[98] The defendants rely on the protection of s. 911(1) of the LGA and submit that they meet the criteria for 

lawful non-conforming use. 

Legal Framework 

[99] Lawful non-conforming use is permitted under certain circumstances, as set out in s. 911 of the LGA. 

This section provides that a use of land that is lawful when a bylaw is adopted, but is subsequently rendered 

unlawful by the enactment of the bylaw, may continue. Section 911 of the LGA provides as follows: 

If, at the time a bylaw under this Division is adopted, 

(a) land, or a building or other structure is lawfully used, and 



(b) the use does not conform to the bylaw, 

the use may be continued as a non-conforming use, but if the non-conforming use is discontinued for 

a continuous period of 6 months, any subsequent use of the land, building or other structure 

becomes subject to the bylaw. 

[100] Notably, if a use has been discontinued for a continuous period of six months, the user can no longer 

rely on the exemption provided for lawful non-conforming use. 

[101] Subsection 911(2) provides that a use of land on a seasonal basis is not discontinued as a result of 

normal seasonal practices, including 

(a) seasonal, market or production cycles, 

... 

(c) the repair, replacement or installation of equipment to meet standards for the health or safety 

of people or animals. 

[102] Section 911(5) explicitly limits the scope of renovation activities permitted on properties relying on the 

lawful non-conforming use exemption: 

(5) A structural alteration or addition, except one that is required by an enactment or permitted 

by a board of variance under section 901 (2), must not be made in or to a building or other structure 

while the non-conforming use is continued in all or any part of it. 

[103] The onus is on the party alleging lawful non-conforming use to prove it on a balance of probabilities: 

Country Lane Developments v. Coquitlam (City), 2003 BCSC 1121; North Vancouver (City) v. Vanneck 

(1997), 39 M.P.L.R. (2d) 249 (B.C.S.C.). 

(i) Was the use permitted under the 1995 Zoning Bylaw 

[104] The pivotal question is whether the use of the Property as a short-term vacation rental was permitted 

under the 1995 Zoning Bylaw. 

[105] The Regional District argues that the defendants cannot rely on the protection of the law of nonconforming 

use because the use of the Property as a commercial tourist accommodation was never a 

permitted use under the 1995 Zoning Bylaw. Under the 1995 Zoning Bylaw, the only relevant permitted uses 

for the defendants’ Property in the RS1 Zone were as a “single family dwelling” or a “home occupation”. The 

defendant’s use clearly would not qualify as a “home occupation”, as this use is only permissible if involves 

less than 50 square metres of the floor area of the dwelling unit and the defendants admit that the Vacation 

Rentals provided use of the Property as a whole. The Regional District submits that the Property was not 

being used as a “single family dwelling” either, as this refers to a dwelling unit occupied or intended to be 

occupied by one family. The Regional District points out that the defendants admit they rented the Property 

out on a short-term basis to various vacationing families throughout the years. Hence, they submit, the 

defendants were in breach of the 1995 Zoning Bylaw and cannot rely on the law of non-conforming use 

because their use was never “lawful”. 



[106] The Regional District also contends that under the 1995 Zoning Bylaw the defendants’ use of the 

Property to provide temporary rental accommodation would have been allowed in other zones within the 

Naramata area, namely the general tourist commercial zone and the tourist commercial heritage zone, both 

of which permit motels, hotels, and resorts. I note parenthetically that, as in the 2008 Zoning Bylaw, there is 

no reference whatsoever in the 1995 Zoning Bylaw to a “commercial tourist accommodation”. 

[107] The defendants submit that their use of the Property met the criteria for use as a “single family 

dwelling” under the 1995 Zoning Bylaw: the building contains one “dwelling unit” and is occupied or intended 

to be occupied by one “family” at a time. 

[108] As mentioned earlier, the defendants’ uncontroverted evidence is that the use of the Property since 

2005 can be characterized as follows: vacant much of the time, used by the defendants as a second home, 

used by friends and family members of the defendants from time to time, and available for rent to one family 

at a time by the week, mainly in the summer months. 

[109] The Property does not meet the definition of a “motel” as it was not designed to provide temporary 

accommodation to the travelling public. Nor is the Property a resort “intended to be used by the public on a 

temporary or seasonal basis for recreational purposes”. The term “hotel” is not defined; however, the 

Concise Oxford English Dictionary, 9 th ed. defines it as “an establishment providing accommodation and 

meals for travellers and tourists”. Overall, I am satisfied that the rental by the defendants of their single family 

residence clearly does not amount to the operation of a hotel, motel, or resort. I therefore conclude that the 

short-term rental of a single family dwelling does not expressly fall within a prescribed use in another zone of 

the 1995 Zoning Bylaw. 

[110] Since the defendants’ use did not qualify as a home occupation or a bed and breakfast, the only 

pertinent use is as a single family dwelling. Notably the 1995 Zoning Bylaw does not distinguish between 

principal and secondary uses - unlike the 2008 Zoning Bylaw there is no prescribed secondary use as a 

temporary visitor accommodation. Nor is the heading of Residential Single Family One Zone (RS1) expressly 

stated as a part of the bylaw. 

[111] Unlike the bylaws considered by the Court in Whistler, the 1995 Zoning Bylaw does not provide a clear 

and explicit statement of intent to exclude temporary accommodation; there are no clear restrictions or 

definitions which limit the use to which a single family dwelling can be put. 

[112] The 1995 Zoning Bylaw states that a “single family dwelling” means a building that consists of one 

dwelling unit; is located on an approved continuous perimeter foundation; and is occupied or intended to be 

occupied by one family. The definition of a “dwelling unit” primarily refers to the physical characteristics of the 

dwelling and requires that it be used or intended to be used for the living and sleeping of not more than one 

family. There is, however, no express stipulation that s single family dwelling could not be used by different 

families at different times in the year. Rather one would assume that “occupied by one family” means that 

only one family could occupy the residence at a time; not that another family could never stay there. If such 

were the case, a resident could never allow another family to use their property, which would be a significant 



restriction on the rights of the resident. If the Regional District had intended to impose such a restriction, it 

should have done so expressly. 

[113] There is no express provision in the 1995 Zoning Bylaw to indicate that providing short-term rentals to 

one family at a time in a person’s private residence would not be permitted in a single family dwelling or that it 

would be permitted in another zone so as to be impliedly excluded from the general use as a single family 

dwelling. 

[114] In the result, I conclude that the defendants’ operation of the Vacation Rentals was compliant with the 

1995 Zoning Bylaw at the time the defendants commenced this use in 2005. 

(ii) Was this use continued 

[115] The next question with respect to lawful non-conforming use is whether the present use is, in 

substance, the same as it was in 2005. Moreover, that use must not have been discontinued for a period of 

more than six consecutive months. 

Legal Framework 

[116] In Sanders v. Langley (Township), 2010 BCSC 1543, at para. 33, Wedge J. distilled the principles for 

determining the relevant "use" under s. 911(1) of the LGA: 

... where a property owner can demonstrate that at the time of a new zoning bylaw his or her 

property was actually used in a manner that was a lawfully permitted use but for the new bylaw, the 

property owner is entitled to continue that formerly lawful, but now non-conforming use. The property 

owner must establish the actual use of the property on the exact date of the adoption of the new 

bylaw (City of North Vancouver v. Vanneck (1997), 39 M.P.L.R. (2d) 249 (B.C.S.C.) and cases cited 

therein). 

[117] In Sunshine Coast (Regional District) v. Bailey, (1995), 15 B.C.L.R. (3d) 16 (S.C.) at para. 31, the 

Court described the purpose of the law of non-conforming use and observed that the courts have adopted a 

liberal approach to interpreting the statutory lawful non-conforming use exemption in favour of the user: 

Presumably, it is the concept of fairness that supplies the underlying rationale for the statutory nonconforming 

use exemption, for its liberal interpretation by the courts through development of the 

"commitment to use" doctrine, and for the accompanying proposition that any doubt as to prior use 

ought to be resolved in favour of the owner. To prohibit completion of a land development project to 

which there has been an unequivocal commitment, including significant physical alteration to the site, 

savours of unfairness because it is tantamount to giving the zoning bylaw retroactive effect, to the 

prejudice of the owner. 

[118] The liberal interpretation in favour of users, noted in Sunshine Coast, also applies with respect to 

whether a use has been discontinued. The courts have taken a broad approach to “use” in order to avoid the 

expiration of a lawful non-conforming use through discontinuance. 

[119] For instance, in Cowichan Valley (Regional District) v. Ward (1994), 95 B.C.L.R. (2d) 58 (C.A.), the 

Court considered whether the operation of a sawmill was a lawful non-conforming use pursuant to s. 722 of 



the Municipal Act, R.S.B.C. 1979, c. 290, which provided that a use would be protected as a lawful nonconforming 

use unless it was discontinued for a period of 30 days. There were periods of 30 days and more 

during which the mill itself did not operate. One winter, the roof collapsed and as a result the mill was 

inoperable for some time. However the Court held that this did not mean that the non-conforming use of the 

premises was discontinued, ‘just as it could not be said that a snow covered golf course was not used as a 

golf course’. The Court of Appeal concluded that although the sawmill property was not always running, it 

was still protected as a non-conforming use. The Court reasoned as follows at para. 13: 

it is non-use of the premises as distinct from non-operation of the mill that must be shown. All that 

the trial judge found was that the mill did not operate for periods in excess of 30 days. That is not 

enough. There must be a discontinuance of the use of the premises in order to satisfy s. 722(2). That 

is not shown by the evidence. (emphasis added) 

[120] In Osoyoos (Town) v. Nobbs, 2002 BCSC 1743, aff’d 2004 BCCA 431, Mr. Justice Meztger 

considered whether the use of the owner’s travel trailer for residential purposes and the use of the lot as a 

recreational vehicle park qualified as lawful non-conforming use. The previous owners and present owners 

had used the site every summer for camping. However, one of the issues raised was the fact that the owners 

only used the land for “summer camping”. Hence, the Town argued that the prior use was discontinued 

under s. 911 of the LGA, as there were periods of longer than six months that had elapsed between each 

camping use. Nevertheless, the Court found that there had been on-going use protected by s.911. The Court 

concluded as follows: 

13. The purpose of allowing a non-conforming use to continue after a bylaw has been passed is 

to protect the status quo. This lot is to be used for summer camping, and that use has never 

changed. I find that the lapse provisions only apply if this lot was not used for camping in the May 

through September period in any one year. There has never been a thirty day or six month lapse of 

that particular use. The status quo is preserved ... 

(emphasis mine) 

[121] On appeal, Saunders J.A. writing for the Court, upheld the trial judgment. She noted as follows with 

respect to the proper approach to determining the relevant “use” in the context of an alleged discontinuance: 

20. In my view the issue here on "use" is not whether the use of this lot meets a particular 

definition in a bylaw, but whether the present use is, in substance, the same as it was in 1973. 

Setting aside for the moment the issue of degree, in my view the answer is yes. The trial judge found 

as a fact, amply supported by evidence, that "[f]riends and relatives of the owners have brought 

tents, trailers and recreation vehicles onto the property every year since it was first purchased in 

1969". The evidence establishes that the present owners use the trailer, still capable of road use, 

and that friends bring recreational vehicles and tents onto the property....Here, on the findings of fact 

by the trial judge, supported by the evidence, this lot was a "private camping site" available for all 

degrees of camping in 1973 to family and friends of the owners and it remains so today. That being 

the case, one cannot say there has been a discontinuance of that use so as to sever the legality of 

the non-conforming use under s. 911(1) of the Act. (emphasis added) 

Discussion 

[122] The defendants submit that they have continued their use since the summer of 2005. The defendants 



contend that the “use” protected by s. 911 of the LGA is the “broad use” to which the property has been put, 

not the individual acts that make up that broad use. They maintain that they were not required to rent out the 

Property in exactly the same fashion and frequency every year. They simply must show that since 2005 the 

Property has been continuously used as a rental property in the same general manner. The defendants say 

that there has been continuous use in the broader sense since 2005, which includes the period in 2010 when 

the renovations were undertaken and the Property was not rented. 

[123] They rely on Cowichan Valley (Regional District) v. Ward (1994), 39 B.C.A.C. 154, where the Court of 

Appeal held that, although the sawmill property was not always running and had been subject to 

maintenance from time to time, the use was nonetheless protected under the provisions for lawful nonconforming 

use. 

[124] In my opinion, the fact that the defendants rented out the Property only during the summer months 

does not mean that the use was discontinued. This position accords with the plain wording of s. 911(2)(a) of 

the LGA, which provides that a seasonal use of land is not discontinued as a result of normal seasonal 

practices, including seasonal or market cycles. Moreover, it emerges from the jurisprudence that it is the 

actual use in the general sense that matters with respect to the continuance of lawful non-conforming use. 

As with the summer camping in Nobbs, short-term rentals during certain weeks in the summer months were 

part of the general status quo over the years. The Property was actually rented out for approximately five 

weeks out of the year, used by the defendants and their friends or family for one to three months per year, 

and vacant for much of the year. 

[125] However, there remains the issue of whether the defendants’ renovations, which commenced in 2009 

and included the addition of a bathroom and 33 square feet of floor space, terminated the lawful nonconforming 

use. 

[126] The Regional District submits that the defendants’ comprehensive renovations to the Property have 

terminated the lawful non-conforming use pursuant to s. 911(8) of the LGA. That section provides that if a 

building that is being used for a non-conforming purpose is damaged or destroyed to the extent of 75% or 

more of its value above its foundations, as determined by the building inspector, it must not be repaired or 

reconstructed except for a conforming use in accordance with the bylaw. However, the evidence does not 

establish that the Property was damaged or destroyed to the extent of 75% or more of its value above its 

foundation, as determined by the building inspector. I conclude, therefore, that s. 911(8) of the LGA is not 

applicable. 

[127] The defendants submit that the renovation to the Property included upgrades to the plumbing, heating, 

and electrical system, all of which were needed to comply with modern codes to protect the health and safety 

of the occupants of the Property. They contend that the renovations fall within s. 911(2)(c) of the LGA, which 

provides that a use is not discontinued as a result of repairs to meet health and safety standards. 

[128] However, in my opinion, s. 911(2)(c) is not applicable because the section clearly refers to repair, 

replacement or installation of equipment. The record does not establish that the renovations undertaken by 



the defendants pertain to equipment. 

[129] I turn to address whether the renovations undertaken by the defendants constituted a structural 

addition pursuant to s. 911(5), which provides as follows: 

(5). A structural alteration or addition, except one that is required by an enactment or permitted 

by a board of variance under section 901 (2), must not be made in or to a building or other structure 

while the non-conforming use is continued in all or any part of it. (emphasis added) 

[130] Mr. Leach testified in his examination for discovery that the renovations to the Property were 

undertaken due to a leaky roof, which was replaced, and that replacement and upgrades were required to 

meet modern building codes. As referred to earlier, a bathroom was added and the house in total was 

expanded by 33 square feet. Two interior walls and the underlying foundations were changed. Mr. Leach 

deposed as follows: 

28. The renovation and refurbishment included updated electrical wiring to meet current code 

requirements, plumbing upgrades, replacement of all mechanical HVAC components, utility upgrades 

and general finishing. The replacements and upgrades all need to be completed to modern codes for 

building, electrical and plumbing. 

[131] The defendants’ uncontradicted evidence is that the replacement of the roof was required by the 

applicable building codes and that the replacement and upgrades were required for compliance with the 

modern electrical, plumbing, and building codes. The evidence does not show, and I cannot accept, that the 

addition of a new bathroom constitutes either a replacement or an upgrade that was required to meet current 

code requirements. The evidence does not show that this structural addition or alteration was permitted by a 

board of variance. I conclude, therefore, that the addition of a new bathroom constitutes a structural alteration 

or addition which is prohibited by the provisions of s. 911(5). 

[132] In the result, with respect to the 1995 Zoning Bylaw the defendants have failed to establish that they 

meet the criteria for lawful non-conforming use. 

[133] In view of my findings, it is not necessary to address the Regional District’s submission that the 

defendants did not continue the operation of the Vacation Rentals, either after the renovations or following 

the commencement of these proceedings. 

CONCLUSION 

[134] The Regional District has failed to show that the defendants are utilizing the Property in breach of the 

2008 Zoning Bylaw. As a result, I need not consider the issue of the appropriate remedy. The Regional 

District’s application is therefore dismissed. 

COSTS 

[135] Counsel have requested the opportunity to make submissions on costs following the delivery of these 

reasons for judgment. If the parties are unable to resolve the issue of costs, they may reserve a date through 



Supreme Court Scheduling to address the issue. 

_________ “Dardi J.”______________ 

Dardi, J.

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