Case Name: Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd.

Transcription

1 Page 1 Case Name: Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd. Between Salt Spring Island Local Trust Committee, Petitioner, and B & B Ganges Marina Ltd., BC Ltd. and B.C. Ltd., Respondents [2007] B.C.J. No BCSC M.P.L.R. (4th) A.C.W.S. (3d) CarswellBC 1439 Vancouver Registry No. S British Columbia Supreme Court Vancouver, British Columbia Tysoe J. Heard: April 18-20, Further written submissions: June 7 amd 13-14, Judgment: June 20, (97 paras.) Municipal law -- Bylaws -- Enforcement -- Interpretation -- Scope of enabling statute -- Particular subject matter -- Zoning -- Application by Salt Spring Island for a declaration that a floating office owned by Ganges Marina was not permitted in the marina or any Shoreline Zone pursuant to the Salt Spring Island Land Use Bylaw, 1999 allowed in part -- The Land Use Bylaw applied to the structure and the structure contravened the size and height restrictions contained in the Land Use

2 Page 2 Bylaw -- Marina was ordered to either alter the structure to make it comply with the Land Use Bylaw or remove it. Application by Salt Spring Island for a declaration that a floating office owned by Ganges Marina was not permitted in the marina or any Shoreline Zone pursuant to the Salt Spring Island Land Use Bylaw, A lease was held from the Provincial Government for the water lot -- The structure was used as a temporary place for the office -- A temporary use permit was issued for a period of two years and could be renewed once upon application -- The Marina had been using the structure as a temporary office for several years and the Local Trust Committee directed the Marina to remove the structure within three months -- The Marina wished to make the structure permanent -- HELD: Application allowed in part -- The Land Use Bylaw applied to the structure and the structure contravened the size and height restrictions contained in the Land Use Bylaw -- The Marina was not entitled to rely on the temporary use permit to excuse the contravention -- Structure was not being used as a vessel and as it was possible to once again use it as a vessel, the requested declaration went too far -- The structure was declared to not comply with the Land Use Bylaw because of the height restrictions -- Marina was ordered to either alter the structure to make it comply with the Land Use Bylaw or remove it -- Order was suspended for one month to give time to the Marina to comply. Statutes, Regulations and Rules Cited: Salt Spring Island Land Use Bylaw, 1999 Counsel: Counsel for the Petitioner: Francesca Marzari. Counsel for the Respondents: L. John Alexander and William Carroll. Counsel for the Attorney General of British Columbia: Richard Butler and Bryant Mackey. [Editor's Note: Supplementary reasons for judgment were delivered July 24, See [2007] B.C.J. No ] Introduction TYSOE J.:-- 1 The Petitioner, Salt Spring Island Local Trust Committee (the "Local Trust Committee"), seeks a declaration that a floating structure being used as the office for the marina in the Ganges Harbour (the "Ganges Marina") is not permitted in the Ganges Marina or any Shoreline Zone pursuant to the

3 Page 3 Salt Spring Island Land Use Bylaw, 1999 (the "Land Use Bylaw"). If the declaration is granted, the Local Trust Committee also wants a mandatory injunction requiring the Respondents to remove the floating structure from the Ganges Marina. 2 The Respondents are the owners and operators of the Ganges Marina (the "Marina Owners"). One of the Marina Owners holds a lease from the Provincial Government for the water lot occupied by the Ganges Marina. 3 Counsel for the Petitioner refers to the floating structure as the "Float Camp". Counsel for the Respondents refers to it as the "Registered Vessel". For the sake of neutrality, I will call it the "Floating Structure". 4 The Marina Owners say that they are entitled to have the Floating Structure in its present location in the Ganges Marina under the Land Use Bylaw or pursuant to a temporary use permit or, alternatively, that the Land Use Bylaw is inapplicable to the Floating Structure for constitutional reasons. Background 5 The first part of the Floating Structure was built in 1933 as an oil tank barge. It was registered in 1934 under the name "P.W.D. No. 315" at the Ship's Registry pursuant to the predecessor of the Canada Shipping Act, 2001, S.C. 2001, c. 26, and continues to be registered up to the present day. 6 This is the second excursion of the Floating Structure into litigation waters. In its first excursion, it had been used as a floating camp to accommodate people engaged in sports fishing. It had sunk, giving rise to an insurance claim. Lowry J.A. gave some of its background in B.C. Ltd. v. Allianz Insurance Co. of Canada, [2006] B.C.J. No. 2754, 2006 BCCA 469: [2] The "P.W.D. No. 315" is a creosote treated timber (4" x 12") plank-constructed barge built in She is approximately 88 feet in length, 28 feet wide, and almost 7 feet high, raked bow and stern. Three longitudinal bulkheads divide the hull into four compartments with access between each. Accommodation facilities were constructed on her deck in 1995 and she was thereafter operated as a sport fishing lodge. During September 1999 she was laid up, as she had been in previous winters, secured to a dock in a bay used as a log storage ground, and it was there that she sank on the morning of March 3, The sinking occurred as a result of a malfunction of an electric pump powered from the shore. The Court of Appeal held the damage was not covered by a marine policy insuring against perils of the sea. 7 The accommodation facilities referred to by Lowry J.A. consisted of a two storey structure, with each storey having 222 square metres in area. The main floor consisted of a large foyer/entrance area with six staterooms. The upper floor consisted of a large dining area and eight additional staterooms.

4 Page 4 8 The Floating Structure was refloated after its sinking and sold to the Marina Owners in December In the same month, it was brought to the Ganges Marina. 9 The Ganges Marina is located in S1 Shoreline Zone of the Land Use Bylaw. The uses permitted in the S1 Shoreline Zone are consistent with the operation of a marina (e.g., navigational uses, commercial moorage, wharfage for resident boats). The Land Use Bylaw also permits buildings and structures, but it stipulates that the maximum size of buildings is 60 square metres and that the maximum height of buildings and structures is 4.5 metres. The terms "building" and "structure" are defined in the Land Use Bylaw as follows: "building" means a structure having a roof or cover supported by columns or walls and used or intended to be used for supporting or sheltering any use or occupancy. "structure" means any material or combination of materials that are constructed for use, occupancy or ornamentation whether installed on, above or below the surface of land or water, but excludes paving. The size and height of the Floating Structure is greater than both of the maximums specified by the Land Use Bylaw for buildings and structures. 10 In January 2002, the Local Trust Committee, having received legal advice that neither the mooring nor the repair of the Floating Structure was permitted under the Land Use Bylaw, resolved that the staff should commence bylaw enforcement procedures to have the Ganges Marina cease the moorage and repair of the Floating Structure. 11 The Marina Owners then decided to use the Floating Structure as a temporary place for the office of the Ganges Marina. They were advised by the staff of the Local Trust Committee that a temporary use permit would be required. In May 2002, the Marina Owners applied for a temporary use permit for two purposes; namely, (i) to use it as office space while a contemplated rezoning application for the Ganges Marina was being processed, and (ii) to use it as a replacement for amenities such as showers and retail space during the proposed redevelopment. The Marina Owners submitted the rezoning application in September At a meeting of the Local Trust Committee held on June 26, 2003, the issuance of a temporary use permit to the Marina Owners was approved, and the permit was subsequently issued. The permit gave the legal description of the water lot and stated that it was issued: to allow the following uses to occupy a floor area not to exceed 413 square metres (4,452 sq. ft.) of a two-storey float camp building.

5 Page 5 (a) (b) Use of the float camp for a construction and project management office associated with the redevelopment of B&B Ganges Marina; Use of the float camp for washrooms, shower facilities, laundry room, storage, marina retail, marina administration and one dwelling unit accessory to the marina operation. The permit also stated that the uses were subject to a number of conditions set out in section 3 of the permit. Two of the conditions read as follows: (c) (d) The use of the float camp building for a construction and project management office is conditional on there being a rezoning application for redevelopment of the marina under consideration by the Salt Spring Island Local Trust Committee. If the current rezoning application is refused, withdrawn or abandoned, the use of the float camp for an accessory construction and project management office is not authorized and the owner shall immediately remove all uses from the float camp, prepare the float camp building for removal and within three months remove the float camp building from the Salt Spring Island Local Trust Area. The use of the float camp for washrooms, shower facilities, laundry room, storage, marina administration and accessory dwelling unit is conditional on there being an approved development permit, building permit and active construction respecting the redevelopment of the marina. If a development permit and building permit are not issued or are issued and lapse or are revoked for any reason, or the construction ceases, the use of the float camp for washrooms, shower facilities, laundry room, storage, marina administration and accessory dwelling unit is not authorized and the owner shall immediately remove all uses from the float camp, prepare the float camp building for removal and within three months remove the float camp building from the Salt Spring Island Local Trust Area. 13 In accordance with applicable legislation to which I will refer later, the permit stated that it was valid for a period of two years from the date of the authorizing resolution of the Local Trust Committee and could be renewed once upon application. 14 The Marina Owners have been using the Floating Structure as the office and reception area for the Ganges Marina for the past several years. The Floating Structure has electrical, water and telephone connections from land. It also had an unlawful connection to the sewer on the upland property, but that was disconnected after the commencement of these proceedings. Also after the commencement of these proceedings, the Marina Owners put up a sign displaying the name "P.W.D. No. 315" and New Westminster as the port of call (both of which are required by the Canada Shipping Act) and installed navigation lights on the Floating Structure.

6 Page 6 15 The temporary use permit expired on June 27, 2005 and the Marina Owners applied for a renewal. At its meeting on August 25, 2005, the Local Trust Committee authorized a renewal for a two year period and resolved that the renewed permit be issued "at such time as confirmation is received from referral agencies that their interests in this temporary use remains unaffected". A renewal permit has not yet been issued because responses from all of the referral agencies have not been received. 16 The bylaw to implement the rezoning application of the Marina Owners received first reading, and a public hearing was held in September Second reading was scheduled for a meeting of the Local Trust Committee on October 12, One of the trustees spoke in favour of further readings of the bylaw and another trustee spoke in favour of a motion to proceed no further with the bylaw. The motion passed by a majority of the three trustees was that "proposed Bylaw No. 404, cited as "Salt Spring Island Land Use Bylaw No. 355, Amendment No. 1, 2005, PROCEED NO FURTHER". 17 One aspect of the Marina Owners' rezoning application was that some of the upland owned by them be dedicated as a public walkway. However, in November 2005, the Marina Owners applied for a development permit to construct 16 accessory structures, some of which are to be erected where the public walkway was proposed. In February 2007, construction of one of the structures was commenced on land which was to be part of the public walkway. 18 On April 25, 2006, the Local Trust Committee directed staff to instruct the Marina Owners to remove the Floating Structure within three months. The staff sent a letter dated May 2, 2006 to the Marina Owners requesting that they comply with section 3(c) of the temporary use permit and remove the Floating Structure outside the local trust area by July 25, The Floating Structure partially sank on July 7, It was refloated in August 2006 and wrapped in a plastic diaper. It is again being used as the primary office and reception area for the Ganges Marina. Issues 20 One of the issues raised by counsel for the Marina Owners was whether there was an inappropriate delegation to the "referral agencies" when the Local Trust Committee made the issuance of the renewed temporary use permit conditional on the interests of the referral agencies remaining unaffected. Counsel for the Local Trust Committee effectively conceded this point, and I will proceed as if the temporary use permit had been renewed. The other non-constitutional issues to be decided in this proceeding are as follows: (a) (b) were the conditions contained in sections 3(c) and (d) of the temporary use permit proper conditions and, if not, what is the effect on the permit? was the Marina Owners' rezoning application refused, withdrawn or abandoned for the purpose of section 3(c) of the temporary use permit?

7 Page 7 (c) does the Land Use Bylaw apply to the Floating Structure and does the Floating Structure fail to comply with it? 21 All counsel agree that I should only decide the constitutional issue if it is necessary for the determination of this proceeding (see Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97). The determination of the constitutionality of legislation in relation to the division of powers must always begin with an analysis of the "pith and substance" of the legislation but, in this case, it is conceded by counsel for the Marina Owners that the pith and substance of the Land Use Bylaw relates to property and civil rights in the Province within the meaning of s. 92(13) of the Constitution Act, The constitutional issue is whether the Land Use Bylaw should be read down or declared inapplicable to the Floating Structure on the basis that Parliament has exclusive jurisdiction over the matters of navigation and shipping pursuant to s. 91(10) of the Constitution Act, Discussion (a) Conditions in Temporary Use Permit 22 Section 921 of the Local Government Act, R.S.B.C. 1996, c. 323, authorizes a local government to issue a temporary commercial or industrial use permit. Subsection (3) reads as follows: Despite a zoning bylaw, a temporary commercial or industrial use permit may do one or more of the following: (a) allow any commercial or industrial use, including... (b) permit the construction or use of buildings or structures to accommodate persons who work at the commercial or industrial enterprise in respect of which the permit is issued; (c) specify conditions under which the temporary commercial or industrial use may be carried on. 23 Counsel for the Marina Owners says that the conditions contained in the temporary use permit are not enforceable because they do not relate to the carrying on of the use. He maintains that they must be conditions of use, and must not relate to the activities of the user. Relying on the decision in Greater Victoria School District No. 61 v. Oak Bay (District), [2006] B.C.J. No. 110, 2006 BCCA 28, counsel submits that, like the zoning power contained in s. 903 of the Local Government Act, the conditions referred to in s. 921(3)(c) must relate to use, not users. 24 I find the Oak Bay decision to be of little assistance to the case at hand. That decision related to the distinction between uses by a public body and a private body. Here, the conditions in the temporary use permit did not relate to the user.

8 Page 8 25 Clause (c) of s. 921(3) allows the temporary use permit to specify conditions under which the use may be carried on. The conditions contemplated by clause (c) are not restricted to conditions as to how the use is carried on. Rather, they include conditions as to the circumstances under which the permitted use may be carried on. One of these permissible circumstances is when a rezoning application is pending. The rezoning application, if successful, may allow for the permitted use or the permitted use may facilitate the implementation of the rezoning. I can envisage conditions which may not be permissible, but the condition that there be a pending rezoning application is not one of them. 26 However, even if I am mistaken and the conditions specified in the temporary use permit are not permissible, the position of the Marina Owners is not advanced. In Hall & Co. Ltd. v. Shoreham-by-Sea Urban District Council, [1964] 1 All E.R. 1 (Eng. C.A.), it was found that conditions attached to a planning permission were improper. The English Court of Appeal held that the improper conditions were not simply severed from the planning permission but that the whole planning permission failed. The rationale was that it was assumed that, without the conditions, the planning permission would never have been granted. I agree with this reasoning, and I am satisfied that the Local Trust Committee would not have granted the temporary use permit without the conditions in question. 27 The result is that either the conditions in the temporary use permit are valid or the temporary use permit is a nullity. The Marina Owners cannot rely on the temporary use permit unless the conditions contained in it are met. (b) Rezoning Application 28 The condition contained in clause 3(c) of the temporary use permit was that the Marina Owners' rezoning application be under consideration by the Local Trust Committee and had not been refused, withdrawn or abandoned. Counsel for the Marina Owners say that the rezoning application was never refused, withdrawn or abandoned. Counsel says that in order for the rezoning application to be considered to have been refused at the meeting of the Local Trust Committee on October 12, 2005, it was necessary for the proposed bylaw to have been put to second reading and voted down. Counsel argues that the decision to proceed no further was simply a decision not to proceed with second reading at that meeting. 29 In my opinion, this is not a reasonable interpretation of the events which occurred at the October 12, 2005 meeting. Before the resolution in question was passed, there had been a motion to table the motion for second reading and the Local Trust Committee removed that motion from the table. If that motion had passed, it would have represented a decision not to proceed with second reading at that meeting and would have left second reading open for a future meeting. However, the motion for second reading was not tabled and, when the Local Trust Committee resolved to proceed no further, it was not simply deferring second reading of the bylaw to a future meeting. Rather, it decided not to proceed further with the bylaw on a permanent basis. This decision was equivalent to

9 Page 9 a refusal of the zoning application. 30 Alternatively, even if the zoning application was considered to be pending after the October 12, 2005 meeting, I find that the Marina Owners abandoned the application by the construction of a building on land which was to be part of a public walkway under the rezoning application. It is not possible for the rezoning application to go forward in its original form, and the Marina Owners must be taken to have abandoned it. 31 Accordingly, the condition in clause 3(c) of the temporary use permit was no longer satisfied, and the Marina Owners cannot rely on the permit to relieve them from non-compliance with the Land Use Bylaw. (c) Land Use Bylaw 32 Counsel for the parties referred me to seven case authorities with respect to the issue of whether the Floating Structure should be considered a ship or vessel for the purposes of the Land Use Bylaw. I will review these authorities in chronological order. Before reviewing these authorities, however, it is useful to set out the definitions of "ship" and "vessel" under the Canada Shipping Act because they are referred to in some of the authorities. 33 The definition of "ship" is as follows: "ship" except in Parts II, XV and XVI, includes: (a) (b) any description of vessel used in navigation and not propelled by oars, and for the purpose of Part I and sections 574 and 581, any description of lighter, barge or like vessel used in navigation in Canada however propelled; "Vessel" is defined as follows: "vessel" includes any ship or boat or any other description of vessel used or designed to be used in navigation; 34 The first decision referred to by counsel is Merchants' Marine Insurance Company, Ltd. v. North of England Protecting & Indemnity Association, [1926] 25 Ll. L. Rep. 446 (Eng. K.B.). In that case, a steamer collided with a crane mounted on a pontoon. The issue was whether the floating crane was a ship or vessel for the purpose of an indemnity clause protecting the owner of the steamer in respect of damage caused by it. The Court concluded that the pontoon was not a ship or vessel for this purpose because the primary purpose for which the pontoon was designed and adapted was to float and lift, and not to navigate. Although the pontoon was moved from time to time, its movement was more the exception than the rule. 35 In Le Procureur general du Canada v. Les Services d'hotellerie maritimes Ltée, [1968] C.S.

10 Page (Que. Sup. Ct.), the issue was whether an injunction should be granted against the owner of "S.S. Florida" for failure to be in compliance with rules adopted pursuant to the Canada Shipping Act. Under the terms of a lease with the Province of Quebec, S.S. Florida was required to be used as a hotel for the duration of Expo 67, and it was tied to a jetty by fourteen steel cables permanently fixed by cement in land owned by the Province of Quebec. The Court dismissed the application for the injunction on the basis that "S.S. Florida" did not come within the definition of "ship" contained in the Canada Shipping Act as a result of the fact that "S.S. Florida" could not take a voyage during the term of the lease and, therefore, was not a vessel used in navigation. 36 As its name indicates, R. v. The "Gulf Aladdin" (1977), 34 C.C.C. (2d) 460 (B.C.C.A.) was a criminal case. The charge was that the tanker barge "Gulf Aladdin" had discharged a pollutant into certain waters contrary to the Canada Shipping Act. On appeal of an acquittal to the B.C. Court of Appeal, the question of law was whether "Gulf Aladdin" was a ship capable of being prosecuted under the Canada Shipping Act. The "Gulf Aladdin" was a barge which was used as a cargo container and was towed by a tug. The main point of the appeal was whether "Gulf Aladdin" could be a ship even though it had no means of self-propulsion. The Court of Appeal held that it was a ship because, despite the fact that it did not have self-propulsion, it was "used in navigation" within the meaning of the definition of "ship" in the Canada Shipping Act. The Court said that it continued to be a "ship" when at rest and that it did not have to be actively "used in navigation" at the particular time in order to be a "ship". 37 The issue in Canada v. Saint John Shipbuilding and Dry Dock Co. (1981), 43 N.R. 15 (Fed. C.A.) was whether the Federal Court had jurisdiction to deal with a claim of damages in respect of a floating crane which had been damaged while discharging cargo from a ship. The Federal Court had jurisdiction if the matter involved a claim for damage sustained by a ship. The following is the reasoning of the Federal Court of Appeal in holding that the floating crane was a ship: She was a barge built for use on water. She was capable of being moved from place to place and was so moved from time to time, as it was in this case to unload the cargo from the "Eminent Scol". She was capable of carrying cargo and had, in fact, done so. She was certainly capable of carrying people and obviously had to do so to enable the crew to carry out their duties. While it appears that she was not capable of navigation herself and was not self-propelled, those facts do not detract from the fact that she was built to do something on the water, requiring movement from place to place. (p. 26) 38 The fifth decision cited by counsel on this point is Herbstreit v. Regional Assessment Commissioner, Assessment Region No. 15 (1983), 38 O.R. (2d) 642 (Ont. Cty. Ct.), a case involving taxation of a ship called the "Mark Twain" and used as a restaurant. The ship was secured to land and had connections for telephone, gas, electricity, water and sewage. The issue was whether the "Mark Twain" was a ship and not land subject to taxation. Land was defined in the applicable legislation to include all structures erected or placed upon, in, over, under or affixed to, among other

11 Page 11 things, water. The "Mark Twain" was a ship as defined by the Canada Shipping Act and was registered as a ship under the Act. 39 The Ontario County Court held that an item might be one thing for one purpose and something else for another purpose. The Court looked at the intent of the owners of the "Mark Twain" and concluded that they intended to have the boat remain as a restaurant as long as it was viable. As it was a structure placed on or in water, the "Mark Twain" was held to be subject to taxation. In an addendum prepared after the judge learned that the "Mark Twain" was being moved to New York City, the Court stated that it made no difference because the relevant time for considering the intentions of the owners was the time of the notice of assessment. 40 Like "Gulf Aladdin", the next decision was a criminal case from British Columbia involving the discharge of a pollutant contrary to the Canada Shipping Act. In R. v. Star Luzon, [1984] 1 W.W.R. 527 (B.C.S.C.), the lower court judge had concluded that a floating drydock called the "Burrard Yarrows" was not a ship under the Act and, therefore, was not guilty of an offence under the Act. The "Burrard Yarrows" was a barge which had been towed to its place of moorage after it was built and not moved thereafter. It was bolted to a concrete pier and all of its services were permanently coupled to the shore. It could be towed to provide drydock facilities elsewhere. The lower court judge had applied a "function" or "purpose" test. The appeal was dismissed on the basis that the Court of Appeal did not find the lower court judge had acted either without any evidence or that properly instructed as to the law and acting judicially he could not have reached the determination that he did reach. 41 The final decision cited by counsel on this point is Galway and Cavendish (Townships) v. Windover (1995), 130 D.L.R. (4th) 710 (Ont. Ct. (Gen. Div.)). The defendant built a floating dock in Mississauga Lake, a navigable waterway, and subsequently enclosed part of the dock to form a boat-house. The municipality applied for the removal of the structure as a result of its non-compliance with a zoning bylaw. The Court held that the structure was neither a boat nor a vessel and that municipalities have the power to pass by-laws regulating matters on land covered by water as long as they do not permit structures which interfere with navigation. The Court granted the municipality's application to have the boat-house structure torn down. 42 I draw the following principles from these authorities: (a) (b) (c) a floating structure may be a ship for one purpose and not a ship for another purpose, and registration of the structure as a ship under the Canada Shipping Act is not determinative (Herbstreit); the fact that a floating structure is not self-propelled does not mean that it is not used in navigation and, hence, not a ship (The "Gulf Aladdin" and Saint John Shipbuilding); a ship continues to be a ship when at rest and not being actively used in navigation at the time in question (The "Gulf Aladdin");

12 Page 12 (d) (e) (f) depending on the circumstances, a barge can be determined to be a ship (The "Gulf Aladdin" and Saint John Shipbuilding) or determined not to be a ship (Star Luzon); municipal taxing legislation and zoning by-laws can apply to ships (Herbstreit) or to land covered by water as long as they do not interfere with navigation (Galway and Cavendish (Townships); and in determining whether a floating structure is a ship, it is relevant to look at the primary purpose or function of the structure (Merchants' Marine Insurance Company and Star Luzon), the current use of the structure (Le Procureur) and the intent of the owners (Herbstreit). 43 Applying these principles, it is my conclusion that the Floating Structure is not a ship or vessel at the present time. Although it may have been used in navigation in the past as an oil tank barge and as a float camp, it is currently being used as an office for the Ganges Marina. It may be capable of navigation once its connections to shore are severed, but the evidence indicates that the present intention of the Marina Owners is to continue its stationary position for the indefinite future. 44 This is not a situation like "The Gulf Aladdin", where the barge was temporarily at rest. Here, the stationary nature of the Floating Structure is not temporary - it has been in its present location for over five years. The situation in the case at bar is most similar to the situation in Herbstreit. In both cases, the structures are floating on the water and are capable of navigation, but are not being used in navigation because they are being utilized for a purpose which requires them to be stationary. In Herbstreit, it was use as a restaurant and, in this case, it is use as a marina office. 45 The Local Trust Committee has the power to pass zoning bylaws regulating the use of water as well as land: see, for example, Islands Trust v. Pinchin Holdings Ltd. (1981), 130 D.L.R. (3d) 69 (B.C.C.A.) and Lake Cowichan (Town) v. Grants Lake Investments Ltd., [2003] B.C.J. No. 33, 2003 BCSC 40. However, counsel for the Marina Owners submits that even if the Floating Structure is not considered to be a ship or vessel and is treated as a building or structure, it complies with the Land Use Bylaw. This argument is based on an amendment to the Land Use Bylaw in In its unamended form, s of the Land Use Bylaw read as follows: In addition to the uses permitted in Subsection of this Bylaw, the following uses, buildings and structures and no others are permitted in the Shoreline Zones indicated... Following is Table In the second line of the first column is a heading "Principal Uses, Buildings and Structures". Under that column is listed the uses, buildings and structures, and in the other columns there is an indication of whether or not they are permitted in each of the S1 to S8 Shoreline Zones. 47 In 2006, the Land Use Bylaw was amended. Section was amended to read as follows:

13 Page 13 In addition to the uses permitted in Subsection of this Bylaw, the following uses, accessory buildings and structures and no others are permitted in the Shoreline Zones indicated... For certainty, the only buildings permitted in the Shoreline Zones are accessory buildings. (extra emphasis is mine) Table is amended by deleting the word "Buildings" from the first column and second row. 48 As I understand the argument of counsel for the Marina Owners, it is said that the amendment shows that the size restrictions were only intended to apply to accessory buildings and did not apply to principal buildings such as the Floating Structure. Although the amended Land Use Bylaw no longer permits principal buildings in the zone, counsel then relies on s. 911 of the Local Government Act for the proposition that the Marina Owners are allowed to continue using the Floating Structure as a principal building on the basis that it qualifies as a non-conforming use. 49 On its face, the unamended Land Use Bylaw applied to all buildings and structures. It contained maximum size and height restrictions, in respect of which the Floating Structure did not comply. The amendment stated that specified uses, accessory buildings and structures were permitted and that the only buildings permitted are accessory buildings. Whether the Floating Structure is considered to be a principal building, an accessory building or a structure, it does not comply with the Land Use Bylaw. 50 I do not agree with the submission that the size restrictions were only intended to apply to accessory buildings. Prior to the amendment, the size restriction applied to all buildings. The fact that the amendment states that the size restrictions applies to accessory buildings does not result in the conclusion that the size restrictions in the unamended Land Use Bylaw did not apply to principal buildings. Under the amended Land Use Bylaw, it was simply unnecessary to state that the size restrictions applied to principal buildings because they are no longer permitted at all. 51 To accept the submission of counsel for the Marina Owners, one would have to conclude that, prior to the 2006 amendment, the Local Trust Committee intended to have size restrictions on accessory buildings and structures but not on principal buildings. With respect, that would be illogical. 52 As a result, the Floating Structure did not comply with the unamended Land Use Bylaw because, whether it was considered to be a principal building, an accessory building or a structure, it did not comply with the size and height restrictions specified in the Land Use Bylaw. Under the amended Land Use Bylaw, the Floating Structure is either an accessory building or a structure which does not comply with the size and height restrictions or is a principal building which was not permitted at all. In either case, the Floating Structure does not comply with the Land Use Bylaw, in its original or amended form.

14 Page I find that the Land Use Bylaw applies to the Floating Structure and that the Floating Structure does not comply with it. It is therefore necessary to consider the constitutional issue. (d) Constitutional Issue 54 Subsection 91(10) of the Constitution Act, 1867 gives Parliament exclusive jurisdiction over "Navigation and Shipping". Counsel for the Marina Owners says that the use of the Floating Structure as a ship falls within "Navigation and Shipping" and that, even if the Floating Structure is not considered to be a ship (as I have held), the use of the Floating Structure as the office for the Ganges Marina falls within the federal power over "Navigation and Shipping" because it is being used for purposes ancillary to navigation and shipping. Although the Land Use Bylaw is conceded to be intra vires the Local Trust Committee because it relates to property and civil rights in the Province (s. 92(13) of the Constitution Act, 1867), counsel says that the Land Use Bylaw should be read down or declared inapplicable to the Floating Structure as a result of its use ancillary to the federal power. 55 Before I begin reviewing relevant authorities, I will briefly outline three doctrines which are mentioned in the jurisprudence dealing with division of powers between the federal and provincial governments. The three doctrines are referred to as (i) the dual aspect doctrine, (ii) the doctrine of interjurisdictional immunity and (iii) the doctrine of paramountcy. The double aspect doctrine permits both federal and provincial legislation on a single subject to validly subsist, provided that the two pieces of legislation properly fall within the powers of the federal government (s. 91 of the Constitution Act, 1867) and the provincial government (s. 92 of the Constitution Act, 1867), respectively, and provided that neither of the doctrines of interjurisdictional immunity or paramountcy are engaged. 56 The doctrine of interjurisdictional immunity was described in one of the decisions cited to me by counsel in connection with maritime negligence law, Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at p. 496: As a general matter within the Canadian federal system, it is constitutionally permissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. The principal question in any case involving exclusive federal jurisdiction is whether the provincial statute trenches, either in its entirety or in its application to specific factual contexts, upon a head of exclusive federal power. Where a provincial statute trenches upon exclusive federal power in its application to specific factual contexts, the statute must be read down so as not to apply to those situations. This principle of statutory interpretation is known perhaps most commonly as the doctrine of "interjurisdictional immunity": see P.W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at pp et seq. The doctrine of paramountcy provides that if there is operational incompatibility between the

15 Page 15 federal and provincial legislation or if the provincial legislation serves to frustrate the purpose of the federal legislation, the provincial legislation is suspended or rendered inoperative to the extent that it is inconsistent with the federal legislation. 57 Counsel for the Marina Owners makes an analogy between marinas in the context of navigation and shipping, and airports in the context of aeronautics. I will begin by reviewing the aeronautics authorities referred to by counsel. (i) Aeronautics 58 The seminal authority in the area of aeronautics is Johannesson v. West St. Paul (Rural Mun.), [1952] 1 S.C.R. 292, which built upon the decision of the Privy Council in Re Regulation & Control of Aeronautics in Canada, [1932] A.C. 54 (P.C.) holding that the whole field of legislation with respect to aerial navigation belonged to Parliament as a matter affecting the peace, order and good government of Canada. The Supreme Court of Canada held that a municipal bylaw prohibiting the establishment of an aerodrome within a part of the municipality was ultra vires. Several justices gave reasons. The reasoning of Kellock J. was capsulated in the following paragraph at p. 311: It is no doubt true that legislation of the character involved in the provincial legislation regarded from the standpoint of the use of property is normally legislation as to civil rights, but use of property for the purposes of an aerodrome, or the prohibition of such use cannot, in my opinion, be divorced from the subject matter of aeronautics or aerial navigation as a whole. If that be so, it can make no difference from the standpoint of a basis for legislative jurisdiction on the part of the province that Parliament may not have occupied the field. Thus, even if Parliament has not enacted legislation (or regulations) regarding the location of aerodromes, provincial legislation cannot regulate their location. 59 In Quebec (Minimum Wage Commission) v. Construction Montcalm Inc., [1979] 1 S.C.R. 754, the issue was whether provincial minimum wage legislation applied to labourers working in the construction of an airport. The Supreme Court of Canada held that the provincial legislation did apply because it did not relate to an integral part of aeronautics. Beetz J., for the majority, said the following at p. 770: The construction of an airport is not in every respect an integral part of aeronautics. Much depends on what is meant by the word "construction". To decide whether to build an airport and where to build it involves aspects of airport construction which undoubtedly constitute matters of exclusive federal concern: the Johannesson case. This is why decisions of this type are not subject to municipal regulation or permission... Similarly, the design of a future airport, its dimensions, the materials to be incorporated into the various buildings, runways and structures, and other similar specifications are, from a legislative

16 Page 16 point of view and apart from contract, matters of exclusive federal concern. The reason is that decisions made on these subjects will be permanently reflected in the structure of the finished product and are such as to have a direct effect upon its operational qualities and, therefore, upon its suitability for the purpose of aeronautics. But the mode or manner of carrying out the same decisions in the act of constructing an airport stand on a different footing. Thus, the requirement that workers wear a protective helmet on all construction sites including the construction site of a new airport has everything to do with construction and with provincial safety regulations and nothing to do with aeronautics. 60 The case of British Columbia v. Van Gool (1987), 36 D.L.R. (4th) 481 (B.C.C.A.) dealt with a municipal zoning bylaw which designated the area in question as agricultural land and only permitted private airports with two or fewer aircraft used in a farming operation. The respondents operated an airfield for ultralight aircraft within the area in question. Charges against the respondents for contravention of the bylaw had been dismissed by the lower courts, but the B.C. Court of Appeal allowed the Crown's appeal. The Court held that the trial judge, [1985] B.C.J. No. 2922, erred in his application of the interjurisdictional immunity doctrine. Relying on the fact that the bylaw was confined to private airports, the Court held that the bylaw was a valid exercise of the jurisdiction of the province and the municipality with respect to the regulation of land and did not intrude upon the exclusive jurisdiction of the federal government over the matter of aeronautics. The Court distinguished Johannesson on the basis that the applicable section in the municipal legislation in that case (which authorized municipalities to pass bylaws preventing aerodromes) was in pith and substance in relation to aeronautics. 61 The decision in Mississauga (City) v. Greater Toronto Airport Authority, [1999] O.J. No. 36, (2000), 50 O.R. (3d) 641 (C.A.), leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 83, related to the redevelopment of Pearson International Airport, which is located on land owned by the federal government. The City of Mississauga maintained that its building code regime applied to all buildings at the Airport and that it should be paid development charges in respect of the redevelopment. The Ontario Court of Appeal upheld the conclusions of MacPherson J. that the entire redevelopment was essential for the operation of the Airport and that the application of Mississauga's building code regime to the redevelopment project would intrude into exclusive federal jurisdiction over aeronautics. 62 The final aeronautics case cited to me by counsel is Regional District of Comox-Strathcona v. Hansen, [2005] B.C.J. No. 365, 2005 BCSC 220. In that case, the Regional District amended its zoning bylaw to remove airports from the list of permitted uses. The owners of the land, having received approval from Transport Canada, established a landing strip on the land. The Court dismissed the Regional District's application for an injunction preventing the airfield. Lander J. discussed the interjurisdictional immunity doctrine and the double aspect doctrine, and concluded that where provincial legislation affects a vital or essential part of the undertaking, the interjurisdictional immunity doctrine takes precedence over the double aspect doctrine.

17 Page Lander J. also discussed the decision in Van Gool at some length. He suggested that it may not have been correct for the B.C. Court of Appeal in Van Gool to have distinguished Johannesson, and he referred to the decision in Venchiarutti v. Longhurst (1992), 8 O.R. (3d) 422 (C.A.), where the Ontario Court of Appeal criticized Van Gool. He concluded that Van Gool should no longer be considered good law because it conflicted with the leading case on interjurisdictional immunity, Bell Canada v. Quebec, [1988] 1 S.C.R (ii) Navigation and Shipping 64 In turning to the case authorities dealing with the federal power of navigation and shipping, I will begin by referring to Les Services d'hotellerie maritimes Ltée, to which I made reference in connection with the issue of whether the Floating Structure should be considered to be a ship or a vessel for the purposes of the Land Use Bylaw. In that case, the Quebec Superior Court held that a boat being used as a restaurant was not a ship under the Canada Shipping Act and was a local work and undertaking coming under the exclusive power of the Province of Quebec. 65 The leading authority in this area for a number of years has been Hamilton Harbour Commissioners v. City of Hamilton (1978), 6 M.P.L.R. 183, 21 O.R. (2d) 459 (C.A.), where the Hamilton Harbour Commissioners sought declarations that certain bylaws of the City of Hamilton were not binding with respect to lands within the harbour. On appeal, the City of Hamilton challenged the following holdings of the trial judge, (1978), 1 M.P.L.R. 133, who dismissed the application: (a) land-use control in Hamilton harbour is an area of concurrent jurisdiction, admitting of regulation by both the federal Parliament and provincial Legislature, (b) the federal Government has not occupied the field, (c) there is no conflict, as that term has been defined, between the by-laws of the plaintiff and the municipal zoning by-laws so as to justify the application of the paramountcy doctrine, and (d) the plaintiff is not an agent of the Crown. (pp ) The Ontario Court of Appeal dismissed the appeal for the reasons given by the trial judge. It is interesting to note that the Attorney-General for Canada had intervened in the appeal and had accepted the trial judge's conclusion that land-use control in Hamilton Harbour was an appropriate area of concurrent federal and provincial legislation. 66 The Ontario Court of Appeal considered the same issue a year later in Township of Moore v. Hamilton (1979), 8 C.E.L.R. 125, 96 D.L.R. (3d) 156 (Ont. C.A.). The trial judge, [1978] O.J. No. 1107, had dismissed an application by a municipality for an injunction to prevent the defendant from using a commercial gravel dock on the basis that it was in violation of a bylaw. The trial judge had referred to Hamilton Harbour Commissioners, but found the bylaw ineffective to prevent the use of the land for purposes related to navigation and shipping. The Ontario Court of Appeal overturned the decision and granted the requested injunction on the basis that the Navigable Waters Protection Act, R.S.C. 1970, c. N-19, pursuant to which the defendant had received permission to

18 Page 18 build the dock, did not provide for the control of land use in connection with an approved work and that the municipal bylaw did not purport to regulate matters relating to navigation and shipping. 67 The issue in Municipality of St-Denis de Brompton v. Filteau (1986), 59 D.L.R. (4th) 84 (Que. C.A.) was whether a municipality could validly pass a bylaw prohibiting the use of motor boats on certain lakes. The Quebec Court of Appeal held that the bylaw was ultra vires on the basis that it was legislation with respect to navigation, which is a power granted exclusively to Parliament. The Court of Appeal agreed with the trial judge, (1983), 6 D.L.R. (4th) 596, that the provinces cannot take away the public right of navigation. In upholding the trial judge, the Court of Appeal rejected the argument that the word "navigation" in s. 91(10) of the Constitution Act, 1867 was restricted to commercial navigation and did not extend to navigation by recreational boats. 68 At issue in Whitbread v. Walley, [1990] 3 S.C.R was whether the limitation of liability under sections 647 and 649 of the Canada Shipping Act applied to an accident involving a pleasure craft. In holding that those sections did apply to pleasure crafts, the Supreme Court of Canada stated that Parliament's jurisdiction over shipping and navigation has been broadly interpreted and that it is necessary to have uniform maritime law for all navigable waterways in Canada. 69 In Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, the Province of Alberta wanted to build a dam in a navigable river and obtained approval from the federal Minister of Transport under the Navigable Waters Protection Act. In holding that the Minister of Transport should have first conducted an environmental review pursuant to a federal regulation before giving his approval, the Supreme Court of Canada stated that, as Parliament has been given exclusive jurisdiction over navigation, the provinces are constitutionally incapable of enacting legislation that would authorize an interference with navigation. 70 Ordon Estate v. Grail, which I referred to above when describing the doctrine of interjurisdictional immunity, involved four negligence claims arising out of two boating accidents occurring in navigable water in Ontario. In that case, the Supreme Court of Canada considered the applicability of validly enacted provincial statutes to maritime negligence law. Based on the doctrine of interjurisdictional immunity, the Court held that when the application of a provincial statute of general application would have the effect of regulating an issue of maritime negligence law, it was an intrusion upon the core of federal maritime law, and the provincial statute was rendered inapplicable. 71 The relatively recent decision of the Supreme Court of Canada in Isen v. Simms, [2006] 2 S.C.R. 349, 2006 SCC 41, also dealt with maritime negligence law, and it involved a limitation issue similar to the one considered in Whitbread v. Walley. The issue was whether the limitation of liability set out in s. 577 of the Canada Shipping Act applied to an incident where a bungee cord on the cover of a boat's motor caused damage after the boat had been removed from the water. The Court agreed with the dissenting judgment in the Federal Court of Appeal, [2005] F.C.J. No. 756, that the situation did not constitute an integral connection with navigation and shipping and, thus,