IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Okanagan-Similkameen (Regional District) v. Leach, 2012 BCSC 63 Date: Docket: 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 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.

2 [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 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.

3 [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 [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 As a result of the renovations which carried on into 2010, the Defendants did not rent the Property in 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

4 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).

5 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

6 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 of the 2008 Zoning Bylaw are identical to those contained in s 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

7 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 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 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 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

8 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

9 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 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.

10 [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 , 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

11 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 private visitor accommodation is permitted only as a secondary use in the RS1 Zone,

12 (3) pursuant to s 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 [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 (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 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 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

13 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 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 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 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 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 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

14 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 [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 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

15 (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.

16 [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

17 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 (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 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

18 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 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 The defendants