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

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