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

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