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2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach (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 http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach 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 http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
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