IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Denman Island Local Trust Committee v. Ellis
2005 BCSC 1238
Date: 20050831
Docket: L042564
Registry: Vancouver
Between:
Denman Island Local Trust Committee Plaintiff
And:
Francis Dean Ellis , Daniel John Stoneman and Debra Monica Stoneman , Defendants
Before: The Honourable Mr. Justice Groberman
Reasons for Judgment
Counsel for the Plaintiff: F.V. Marzari
Counsel for Mr. Ellis : B.R. Lokash
In Person: D.J. Stoneman
Date and Place of Trial/Hearing: Jan. 24 – 28, Feb. 1, 2005 Vancouver , B.C.
[1] The plaintiff is the local government body for Denman Island . It alleges that the defendant Ellis removed trees and otherwise altered areas of two lots in breach of a bylaw. Relying on section 28 of the Islands Trust Act, R.S.B.C. 1996, c. 239 and section 281 of the Local Government Act, R.S.B.C. 1996, c. 323, it seeks a declaration that Mr. Ellis has violated the bylaw, an injunction to prevent further violations, and an order compelling Mr. Ellis to take measures to remediate the damage caused.
[2] Mr. Ellis resists the action, arguing that he has not violated the bylaw, that the bylaw is invalid or inapplicable, and, in the alternative, that the court has no jurisdiction to require that he undertake remedial measures.
[3] The Stonemans purchased one of the two lots after this litigation was commenced, and after a certificate of pending litigation was registered against the lot. No remedy is currently sought against them, other than an order that they permit Mr. Ellis to enter and remediate their lot in the event that such an order is granted against him.
[4] The current application is brought under Rule 18A. While there are is sue s of credibility, none of the parties seriously contends that the action is not amenable to determination by way of summary trial. I am of the view that such is sue s of credibility as arise can be resolved based on the affidavit evidence alone. Accordingly, I am prepared to deal with this matter by way of summary trial.
The Legislative Background
[5] The Islands Trust Act establishes a specialized regime of land use regulation within the trust area. Under section 29 of the Act, Local Trust Committees have most of the powers and authority of Regional District Boards under part 26 of the Local Government Act, which deals with planning and land use management. Among those powers is the power, under s. 876, to adopt an Official Community Plan by bylaw. Section 919.1 of the Local Government Act provides as follows:
919.1 (1) An official community plan may designate development permit areas for one or more of the following purposes:
(a) protection of the natural envi ron ment, its ecosystems and biological diversity;
(b) protection of development from hazardous conditions;
….
(2) With respect to areas designated under subsection (1), the official community plan must
(a) describe the special conditions or objectives that justify the designation, and
(b) specify guidelines respecting the m anne r by which the special conditions or objectives will be addressed.
….
920. (1) If an official community plan designates areas under section 919.1(1), the following prohibitions apply unless … the owner first obtains a development permit under this section:
(a) land within the area must not be subdivided;
…
(d) land within an area designated under section 919.1 (1) (a) or (b) must not be altered;
…
(2) Subject to subsections (3) to (6), a local government may, by resolution, is sue a development permit that
…
(b) includes requirements and conditions or set standards under subsections (7) to (10), and
…
(7.1) For land designated under section 919.1(1)(b), a development permit may do one or more of the following:
(a) specify areas of land that may be subject to flooding, mud flows, torrents of debris, erosion, land slip, rock falls, subsidence, tsunami, avalanche or wildfire, or to another hazard if this other hazard is specified under section 919.1(1)(b), as areas that must remain free of development, except in accordance with any conditions contained in the permit;
…
(11) Before issuing a development permit under this section, a local government may require the applicant to provide, at the applicant's expense, a report, certified by a professional engineer with experience relevant to the applicable matter, to assist the local government in determining what conditions or requirements under subsection (7.1) it will impose in the permit.
[6] In May 1999, in Bylaw No. 111, the plaintiff amended the Official Community Plan Bylaw (Bylaw No. 60) to designate the Komas Bluff area as a Development Permit Area pursuant to the predecessor of section 919.1(1)(b) of the Local Government Act. The bylaw lists the objectives of the designation as follows:
1. To protect areas of unstable terrain from increased risk of slope failure and/or erosion due to cutting or removal of trees or other development.
2. To protect ground water and surface water from degradation due to development.
[7] It should be noted that the validity of Bylaw No. 111 was challenged in Denman Island Local Trust Committee v. 4064 Investments Ltd., 2000 BCSC 1618, appeal allowed 2001 BCCA 736. This court’s finding that Bylaw No. 111 was part of a package of invalid bylaws aimed at forest management was overturned by the Court of Appeal. Because certain is sue s of validity specific to Bylaw No. 111 were not fully argued before it, the Court of Appeal remitted those is sue s to this court. The case appears to have settled, however, and questions concerning the validity of Bylaw No. 111 remained unanswered.
The Subject Lots
[8] The lots with which the current case is concerned are located on the western side of Denman Island , at the south end of the Komas Bluff Development Permit Area (the “Komas Bluff DPA”). They have over 800 metres of coastline, all of which is within the Development Permit area.
[9] In early 2000, the then-owner of the land obtained a development permit allowing it to harvest trees and clear parts of the lots for the purpose of creating a Christmas tree farm. The development permit included the following conditions:
No Harvesting of trees and/or clearing or alteration of land is permitted within 50 metres of the top edge of the bluff situated on the eastern side of the subject property.
Harvesting of trees and/or clearing or alteration of land lying 50 metres or more from the top edge of the bluff … is permitted only if the 50-metre setback line mentioned above has first been located and clearly identified on site by the applicant, to the satisfaction of the Denman Island Local Trust Committee.
[10] A subsequent owner of the land proceeded to have the 50-metre setback (the “buffer”) flagged by a surveyor in September 2000. It cleared the land on the inland side of the buffer. It may be that a few trees within the buffer were removed, but it was otherwise left untouched, and retained its forest cover.
[11] In February of 2002, when Mr. Ellis purchased the land, the flagging was in place, and the buffer was, for all practical purposes, intact. Although there were st ron g storms in the winter of 2000 – 2001 and 2001 - 2002, the buffer zone was not affected in any material way.
[12] In June of 2002, Mr. Ellis was granted a Development Permit allowing him to adjust the boundary between the lots by subdivision. The geotechnical report that accompanied the application for the Development permit indicated that new ditches had been excavated on the land, and that there were concerns about slope regression and also about overhangs at the crest of the bluff. The report recommended the maintenance of the buffer zone, but suggested that it might be possible to improve the view on the lots by removing some trees, particularly those of small diameter.
[13] Mr. Ellis made a number of inquiries to Islands Trust staff about cutting trees, and was advised that he needed to obtain a development permit prior to any cutting. Nonetheless, there is overwhelming evidence indicating that Mr. Ellis made a concerted effort to remove trees from the buffer zone.
[14] In the fall of 2002, the Islands Trust responded to complaints about tree cutting in the buffer zone on lot A. Larry Olafson , a Bylaw Enforcement Officer, visited the lots in early November of that year, and noted that parts of one of the lots have been cleared, levelled, and seeded to within about 10 metres of the crest of the bluff. He also observed a portion of Lot B that appeared to have been recently cleared, up to about 5 metres from the bluff. Although it had rained for several days, excavator tracks were clearly visible in the vicinity of the clearing. At that time, Mr. Ellis claimed that trees had been cleared from the land prior to him purchasing it, and that he was merely removing stumps. He was cautioned that even the removal of stumps required a Development Permit.
[15] Mr. Olafson visited the land again in early April 2003. He noted piles of freshly cut logs, and observed that clearing had taken place up to 1 metre from the crest of the bluff for a length of about 70 metres. A further 30 metres along the bluff had been cleared, though not as close to the crest. Trees at the north end of the clearing showed signs of having been recently pushed over, including machine marks on the trunks. Again, fresh excavator tracks were present in the soil within the cleared area.
[16] A week later, Peter Jungwirth , a Bylaw Enforcement Officer with the Islands Trust who had experience in forestry matters, visited the property. He observed a pile of logs, and considerable reduction in the tree cover along the length of the lands. He noted that some areas had been cleared right up to the crest of the bluff.
[17] Mr. Jungwirth made a second visit to the land about two weeks later, and noted that a significant number of trees had been removed from the buffer zone in the interim. Mr. Ellis claimed to be removing wind-thrown trees and stumps, but the evidence is inconsistent with that explanation. The stumps appeared to have been freshly cut (although it appears that some efforts may have been made to cover them in soil to disguise the recentness of the cutting). Intact roots were observed on felled trees, as well as marks showing them to have been knocked over by machines.
[18] A number of local residents observed significant logging activity taking place on the lands between May and August of 2003. Cindy Critchley deposes that in May of 2003, she noticed an excavator working on the lands, heard chainsaws being used, and observed logging trucks. She noted a significant loss in forest cover during that period.
[19] Flenn Pollitt saw apparently-healthy trees being cut down with a chainsaw within 5 metres of the crest of the bluff on May 25, 2005 . The area was substantially cleared by May 28, and it appeared to him that trees had simply been pushed over the bluff. Similarly, Ken Fisher deposes that he noticed the use of chainsaws, and saw apparently-healthy trees pushed over during the period from May to August 2003.
[20] In the summer of 2003, Carol Addison observed an excavator driving along the crest of the bluff, and trees that had been standing coming crashing down onto the beach. Leo Jansen also observed people cutting down trees on the slope of the bluff.
[21] A third Bylaw Enforcement Officer, Peter Phillips , attended on the site in early July and late August of 2003. His observations and photographs show there to have been a further significant reduction in forest cover.
[22] In December 2003, there was a series of significant slumps in the Komas Bluff area. Nonetheless, Mr. Ellis appears to have continued to work within the buffer zone, digging drainage ditches as late as January of 2004.
[23] Numerous photos that are in evidence, including aerial photos, document the very significant loss of forest cover within the buffer zone up to 2004. In his June 8, 2004 report, Robert Green , RPF estimates that about 75% of the forest cover of the buffer zone was removed between 2002 and 2004. This estimate appears to be a reasonable one on the evidence.
[24] I am also satisfied on the evidence that only a tiny proportion of the clearing could conceivably have been wind-throw. The thinning of the forest cover does not coincide with periods of high wind, and it appears that the buffer survived st ron g storms in the winters of 2000-2001 and 2001-2002 without material degradation. Indeed, other buffer zones on the island have survived intact since the 1980s. It is inconceivable that the buffer was destroyed by wind.
[25] The area of the buffer zone is somewhat over four hectares, and it is estimated that there the tree density in 2002 was about 800 trees / ha. Based on this density, counsel for the plaintiff asserts that about 2400 trees must have been removed by Mr. Ellis .
[26] While I am cautious about accepting that number, there is other evidence indicating that a very large number of trees were removed. Aside from the clearing which is obvious from the photographs and from the descriptions of the witnesses, there is evidence that Mr. Ellis sold logs taken from the land. He himself admits to selling about 400 logs from the lands. Scaling records indicate a total of about 800 logs. Mr. Ellis says that those records are unreliable because he mistakenly marked logs taken from other properties with the timber mark that was supposed to be used for the lands in question. I view his assertion with considerable scepticism.
[27] While I recognize that the number of logs does not necessarily coincide with the number of merchantable trees – particularly high trees may yield more than one log – it is a good indicator of the number of merchantable trees felled. There is also evidence that a considerable number of trees were not merchantable, and were burned or disposed of rather than being sold.
[28] Mr. Ellis ’s evidence with respect to the vanishing forest cover has not been altogether consistent. At one time, he appears to have contended that all of the forest cover that has been removed was windfall. Later, he said that while he also removed standing trees, those were “hazard trees”. Given the volume of timber removed, its apparently healthy condition, the observations of local witnesses, and the timing of the removal of forest cover (generally during periods of calm winds), I must reject Mr. Ellis’s contentions. It is obvious to me that a concerted effort has been made to clear the lots, with the majority of the trees having been removed from the buffer zone. This has resulted in profits from logging, potential new areas of farmland, and, more importantly to the lot values, an impressive ocean view from the lots.
[29] The evidence also satisfies me that the removal of trees and stumps along the bluff crest and in the buffer zone has significantly destabilized the bluff. An expert report prepared for the plaintiff by Thurber Engineering estimates that an area of 5,660 m 2 or 18% of the slope of the bluff has been damaged directly by “incautious human activity.” The report estimates that the regression of the bluff crest has been accelerated by those activities, to the point where it is now 5 -10 times the natural rate.
Has there been a Violation of the Bylaw?
[30] The parties have generally referred to the bylaw that establishes the Komas Bluff DPA as Bylaw No. 111. In fact, Bylaw No. 111 enacted amendments to the Official Community Plan Bylaw (Bylaw No. 60), and its operative provisions are now part of Bylaw No. 60. In the balance of these reasons, I will refer to the bylaw as Bylaw No. 60.
[31] The plaintiff claims that the clearing of the lots contravened Bylaw No. 60, and also contravened the existing development permit in respect of the lots, which specifically required the maintenance of a 50 metre buffer zone.
[32] I am satisfied that the only reasonable conclusion that can be drawn from the facts is that there has been a deliberate and systematic effort on the part of Mr. Ellis to clear the buffer zone of tree cover. He has knowingly ignored the requirement to obtain a Development Permit before clearing the land, and, to the extent that it is valid and enforceable, contravened Bylaw No. 60 and (in the result) section 920 of the Local Government Act. Even if I accepted his own evidence as accurate (which I do not), it is clear that he has removed tree cover from the buffer zone without a permit.
[33] Before turning to the main is sue before me – whether or not the portions of Bylaw No. 60 that establish the Komas Bluff DPA are valid and enforceable – I will deal with the plaintiff’s argument that quite apart from the bylaw, the defendant can be found liable for breach of the conditions contained in the 2000 development permit. That permit allowed portions of the lots to be cleared, but prohibited all clearing and harvesting within 50 metres of the bluff.
[34] The provisions of the development permit limiting alteration of the land are authorized, if at all, by s. 920(7.1)(a) of the Local Government Act. Their validity, therefore, depends upon a finding that the Komas Bluff DPA was validly designated. Unless the designation of the Development Permit Area in Bylaw No. 60 is valid and enforceable, therefore, there was no authority for the restrictions in the development permit. In these circumstances, the restrictions in the development permit cannot stand unless the bylaw itself is valid and enforceable. Accordingly, I have concluded that the restrictions set out in the existing development permit do not advance the plaintiff’s case. The real is sue s in this action concern the validity and enforceability of the portions Bylaw No. 60 establishing the Komas Bluff DPA.
Is the Establishment of the Komas Bluff DPA Void for Vagueness?
[35] Mr. Ellis ’s primary argument in this case is that the bylaw establishing the Komas Bluff DPA is void, because it fails to adequately define the boundaries of the area.
[36] When Bylaw No. 111 was enacted, it included a map designated as “Schedule E”. The map anne xed to the copies of the bylaw in evidence indicates a scale of 1:50,000, though the evidence is that the scale of the original is 1:20,000.
[37] In 2001, apparently in order to deal with suggestions that the boundaries shown on Schedule E were inadequately delineated, the plaintiff amended Bylaw 60 by enacting Bylaw 140, which sets out interpretive rules for the establishment of boundaries. The relevant rules are Rules 15 and 16, which are as follows:
Rule 15
The boundaries of the … development permit areas shown on Schedule E … are delineated and described on the ... "Development Permit Map" ….
· Th[at] map consist[s] of a computer record compiled by means of geographic information software and global positioning system.
· The … Development Permit Map [is] kept at the Islands Trust Victoria Office. ….
· A generalized diagrammatic representation of the "Development Permit Map" is anne xed to this Bylaw as Schedule E. In the event of any conflict or inconsistency between the Development Permit Map and Schedule E, the Development Permit Map shall govern
· ….
Rule 16
In the event of uncertainty regarding the location of the development permit area boundaries shown on Schedule E, the location must be determined by the application of the following rules:
· where development permit area boundaries coincide with lot boundaries, the development permit area boundary is the same as the lot boundary;
· …
· where development permit area boundaries and the natural boundary of the sea coincide, the development permit area boundary is the same as the natural boundary;
· …
· in all other cases, the development permit area boundary must be determined by scaling to the centre of the line demarking the development permit area boundary on Schedule E.
[38] It is apparent from Schedule E that the south end of the Komas Bluff DPA coincides with a surveyed lot boundary, and that the northern and eastern boundaries coincide with natural boundaries of the sea. The western boundary of the area, however, does not coincide with either a surveyed or natural boundary. It is simply a line drawn on a map.
[39] In its terms, Rule 16 requires the western boundary to be determined by scaling to the centre of the line representing that boundary on Schedule E. The relatively small scale of the Schedule E map limits the utility of scaling. Even on a 1:20,000 scale map, the width of the line marking the western boundary of the Development Permit Area corresponds to about 10 metres on the ground. David Bazett , a B.C. Land Surveyor, stated in evidence that scaling would, from a practical standpoint, only establish the boundary to an accuracy of about ±5 metres.
[40] The uncertainty is compounded by the existence of Rule 15, which provides that Schedule E is merely a diagrammatic representation of the official map, which consists of computer data housed at the offices of the Islands Trust. In the event of any inconsistency between Schedule E and the official map, the official map governs.
[41] The data which comprise the official map were compiled using geographic information software and the global positioning system. As I understand it, this method of specifying the position of a point on the ground is not particularly precise. Further, because the data is not tied to a survey, other errors can occur.
[42] Mr. Bazett attempted to use the data to locate the western boundary of the Komas Bluff DPA. He found that points that were supposed to be on surveyed lot lines did not correspond with those lot lines – as I understand his evidence, discrepancies of 1.5 to 5 metres were found. Further, boundary lines that appear to be straight on Schedule E are, instead, when plotted using the computer data, somewhat deflected.
[43] In the result, the computer data, far from resolving difficulties in determining the position of the boundary, compound the problem. I accept that whether the schedule E map or the computer data is used, there is uncertainty in the position of the western boundary of the Komas Bluff DPA. Its position can only be determined within a tolerance of about ±5 metres.
[44] The clearing and tree harvesting activities that occurred in the case at bar were not close to the western boundary of the Development Permit Area. On any interpretation of the boundaries of the Area, they were within them. Nonetheless, Mr. Ellis argues that the imprecision in translating the map to the ground renders the bylaw “vague”, and therefore unenforceable.
[45] I am unable to agree with that contention. In Service Corp. International (Canada) Ltd. v. Burnaby (City)2001 BCCA 708, 95 B.C.L.R. (3d) 301, the Court of Appeal established that the general tests for vagueness enunciated in Regina v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 apply in municipal law. In that case, at pp. 638-639, the court discussed the question of how precise a law needs to be in order to escape being unenforceable by reason of vagueness. It observed:
Legal rules only provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. In the meanwhile, conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances.
By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion as to their actualization. They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens.
[46] Other cases, such as Perry v. Vancouver (1994), 88 B.C.L.R. (2d) 328 (CA), Sundher v. Surrey, (1995) 30 M.P.L.R. (2d) 250 (BC SC) aff’d. 148 D.L.R. (4th) 250 (BC CA), and Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 demonstrate that the degree of precision necessary before a law will be enforceable is not particularly exacting. In the context of land boundaries, I read the decision of Clancy J. in Striegel v. Tofino (District) (1994), 20 M.P.L.R. (2d) 218 (BC SC) as reaching a similar conclusion.
[47] In defining the boundaries of the Komas Bluff DPA, the plaintiff could undoubtedly have done so with much greater precision than it did. Metes and bounds descriptions or legal surveys could have defined the boundaries to within centimetres. Instead, the plaintiff has chosen to use a system which, at best, defines boundaries to the nearest metre, and, in practice, leaves an area of uncertainty of up to 10 metres.
[48] The test of vagueness, however, is neither absolute precision nor optimal clarity. If it were, very few statutes would pass muster. Instead, the test is whether a law provides adequate notice of a zone of risk, and provides a principled basis for legal debate as to whether conduct falls within or outside the proscribed zone. I am satisfied that the bylaw in question adequately delineates the boundaries of the Komas Bluff DPA. While there may be room for debate as to whether a particular tree is within or without the boundary, the bylaw, together with general principles of legal interpretation provide an adequate basis for that debate.
[49] Accordingly, the bylaw establishing the boundaries of the Komas Bluff DPA is not void for vagueness.
Does the Agricultural Land Commission Act render the Bylaw Unenforceable?
[50] The land in question in this case is designated as Agricultural Land under the Agricultural Land Commission Act, S.B.C. 2002 c. 36. Section 46 of that Act provides:
46. (1) In this section, "bylaw" means
(a) a bylaw, made by a local government, that adopts … an official community plan,
….
(4) A local government bylaw … that is inconsistent with this Act, the regulations or an order of the commission has, to the extent of the inconsistency, no force or effect.
(6) A local government bylaw … that provides restrictions on farm use of agricultural land additional to those provided by this Act and the regulations is not, for that reason alone, inconsistent with this Act and the regulations.
[51] Section 2(2) of the Agricultural Land Reserve Use, Subdivision And Procedure Regulation, B.C. Reg. 171/2002 provides:
2. (2) The following activities are designated as farm use for the purposes of the Act and may be regulated but must not be prohibited by any local government bylaw …:
….
(d) land development works including clearing, levelling, draining, berming, irrigating and construction of reservoirs and ancillary works if the works are required for farm use of that farm;
…
(f) timber production, harvesting, silviculture and forest protection;
….
Mr. Ellis argues that the plaintiff has effectively prohibited farm uses of the subject lands, contrary to section 2(2) of the regulation.
[52] He says that the court should look not only at the legislative scheme applicable to the Komas Bluff PDA, but also at the plaintiff’s history of rejecting applications for development permits. I am unable to accept that proposition. The validity and enforceability of the Komas Bluff PDA depends on the language and context of the legislation itself, and not on any decisions that the plaintiff has made under the legislation. The validity or invalidity of individual decisions may be reviewed by this court by way of Judicial Review. If improper decisions have been made, they can be overturned by the court; such decisions do not form the basis for overturning the bylaw itself.
[53] The question that must be considered is whether the scheme of the Komas Bluff PDA amounts, on the one hand, to “regulation” or, on the other hand, “prohibition” of farm activities. The distinction can be a fine one. As observed by Anglin J. in Montreal (City) v. Morgan (1920), 60 S.C.R. 393 at 400, while a power to regulate is not a power to prohibit, “every power to regulate necessarily implies power to restrain the doing of that which is contrary to the regulation authorized, and in that sense and to that extent involves the power to prohibit.”
[54] In Cannon Contracting Ltd. v. Mission (District) (1992), 9 M.P.L.R. (2d) 109 (BC SC), aff’d. 100 B.C.L.R. (2d) 111 (CA), the is sue was whether a bylaw that required a permit in order for soil to be removed from a parcel of land was “regulation” of the removal of soil, or was a “prohibition”. Under the then-extent provision of the Municipal Act, prohibitions were effective only with the concurrence of the Minister of Energy, Mines and Petroleum Resources. Regulation, on the other hand, did not require such concurrence. In language specifically approved by the Court of appeal, this court held that “provided the permit process itself is not so onerous as to practically prohibit obtaining of permits” the bylaw should be interpreted as being regulatory rather than prohibitive.
[55] Section 920 of the Local Government Act sets out “prohibitions” that apply in permit development areas unless an exemption applies, or a development permit is granted by the local government. The Official Community Plan sets out activities within the Komas Buff PDA that can be carried on only with a permit, and sets out guidelines for the issuance of permits. Among the requirements set out by the guidelines is the provision of a geotechnical report indicating “that the proposed activities will not cause any potential erosion of soil or contribute to any land slip, rock fall, mud flow, sloughing, or water degradation.”
[56] I am not persuaded that the bylaw should be interpreted as prohibiting farming activities. Rather, it regulates such activities, requiring a permit to be obtained before they can be undertaken. Land owners are required to take appropriate steps to ensure that farming activities do not result in instability of the land or in degradation of groundwater. In some situations, the circumstances of the land will mean that a permit cannot, in practice, be obtained. The dominant feature of the development permit scheme, however, is regulation and not prohibition. I am satisfied that the scheme does not conflict with the Agricultural Land Commission Act or the Agricultural Land Reserve Use, Subdivision And Procedure Regulation .
Does the Workers Compensation Act Excuse Compliance with the Bylaw?
[57] Mr. Ellis also argues that the bylaw is unenforceable because it conflicts with provisions regulations under the Workers’ Compensation Act that require the removal of dangerous trees where workers will be exposed to them in forestry operations. He says that the bylaw prohibits that activity, and so is in conflict with provincial legislation.
[58] It is true that where a bylaw conflicts with provincial legislation, it will be inoperative to the extent of the conflict. Conflict, however, is defined restrictively. In 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, the Supreme Court of Canada applied the “impossibility of dual compliance” test articulated in Multiple Access Ltd. v. McCutcheon, [1982] S.C.R. 161 to alleged conflicts between provincial and municipal laws. Conflict will exist only where complying with both pieces of legislation is impossible.
[59] In the case at bar, there is no difficulty with complying with both the restrictions imposed by Bylaw No. 60 on the Komas Bluff PDA and the provisions of the Workers’ Compensation Act and regulations. If dangerous trees exist on lands within the Komas Bluff PDA, either a development permit can be obtained to allow their removal, or forestry activities may be suspended in the vicinity of those trees. Either course of action will avoid a conflict between the two pieces of legislation.
Remedies Sought
[60] I am satisfied, then, that Mr. Ellis has violated the provisions of Bylaw No. 60 establishing the Komas Bluff PDA, and that the bylaw is valid and enforceable. He has therefore violated s. 920 of the Local Government Act. The remaining is sue is what remedy ought to be granted.
[61] The plaintiff seeks declaration that there have been violations, an injunction prohibiting further violations, and a mandatory injunction requiring restoration of the lands to their condition prior to the violation.
[62] I am satisfied that this is an appropriate case in which to is sue a declaration. In coming to this conclusion, I do not overlook the fact that declaratory relief is discretionary, and will generally not be granted where the declaration will serve little purpose, or will resolve merely hypothetical is sue s: Cheslatta Carrier Nation v. British Columbia 2000 BCCA 539, (2000) 193 D.L.R. (4th) 344, leave to appeal denied [2000] S.C.C.A. No. 625 . A genuine practical dispute lies behind this litigation. The validity of the bylaw establishing the Komas Bluff PDA was in is sue , and it is appropriate that the court grant a declaration. Accordingly, I grant a declaration that the defendant Ellis unlawfully contravened section 920(1)(d) of the Local Government Act by altering land within the Komas Bluff PDA without a development permit authorising such alteration.
[63] The plaintiff seeks a permanent injunction restraining the defendants and all other persons having notice of the order from altering the lands without obtaining a development permit.
[64] I accept that the court will generally grant an injunction to a public authority seeking to restrain continued breach of a statute. As recently stated by the Court of Appeal in Vancouver (City) v. Maurice, 2005 BCCA 37, at paragraph 34:
[W]here a public authority, such as the City, turns to the courts to enforce an enactment, it seeks a statutory rather than an equitable remedy, and once a clear breach of an enactment is shown, the courts will refuse an injunction to restrain the continued breach only in exceptional circumstances.
I am satisfied that there is a basis for an injunction against Mr. Ellis . I have found that he has deliberately breached the Local Government Act by altering land within the Komas Bluff DPA without a permit. Further, his persistence in violating the legislation in the face of the plaintiff’s warnings provides sufficient reason to be concerned that continued violations may occur in the absence of an injunction. Accordingly, I am granting a permanent injunction against Mr. Ellis, restraining him from cutting trees on, clearing, developing, excavating or otherwise altering those portions of the lands that are within fifty metres of the top edge of the Komas Bluff, or causing any of those activities to be carried out on those portions of the lands, without first obtaining a development permit authorizing such activities.
[65] I am not prepared to extend the injunction to persons other than Mr. Ellis . The evidence does not indicate that any other person has persistently violated the Komas Bluff DPA provisions, nor is there any reason to suspect that such violations will occur in the absence of an injunction.
Is There Authority to Grant a Mandatory Injunction?
[66] The parties do not agree on whether the plaintiff has authority to seek a mandatory injunction requiring Mr. Ellis to rehabilitate the land. The power of the plaintiff to apply to court for civil remedies in respect of bylaw contraventions is found in s. 274 of the Community Charter, S.B.C. 2003, c. 26:
274 (1) A municipality may, by a proceeding brought in Supreme Court, enforce, or prevent or restrain the contravention of,
(a) a bylaw ….
[67] Section 274 is rather inelegantly made applicable to the plaintiff by virtue of the combined effect of s. 28 of the Islands Trust Act, R.S.B.C. 1996, c. 239 and s. 281 of the Local Government Act, R.S.B.C. 1996, c. 223.
[68] The question to be determined is whether a proceeding seeking to have Mr. Ellis restore the subject lands comes within the ambit of the word “enforce” in section 274 of the Community Charter.
[69] The plaintiff cites a number of cases in which mandatory orders have been made in order to prevent property owners from continuing to violate bylaws. For example, in Coquitlam (City) v. Aweryn, 2000 BCSC 777, 11 M.P.L.R. (3d) 43 aff’d. 2001 BCCA 373, 18 M.P.L.R. (3d) 208 leave to appeal denied [2001] S.C.C.A. 392, this court granted an order requiring a landowner to remove three illegal suites from a residential building. In Vancouver (City) v. Stathis 2003 BCSC 799, this court granted an injunction requiring an addition and retaining walls that were built in contravention of zoning and building bylaws to be removed.
[70] While these cases indicate that the court will not hesitate to grant mandatory injunctions in appropriate cases, they are not of great assistance in determining whether or not section 274 of the Community Charter is broad enough to contemplate the remedy being sought in this case. The court was, in those cases, dealing with a continuing violation of a bylaw. The mandatory orders that were granted did no more than was necessary to prevent continuing violations. However one construes the word “enforce” in section 274, it clearly encompasses the kinds of remedies granted in Coquitlam (City) v. Aweryn and Vancouver (City) v. Stathis .
[71] There is, in the case at bar, no continuing violation of the Local Government Act or of Bylaw No. 60. What the plaintiff is seeking is a mandatory order to restore the property to a state equivalent to that which it would be in had violations not occurred. While it is arguable that such a remedy comes within the ambit of the word “enforce”, the is sue is not a clear-cut one.
[72] The plaintiff also cites a number of cases in which this court has granted mandatory orders in order to reverse the effects of a violation of a restrictive covenant, including Burnaby (City v. Racanelli (1998), 45 M.P.L.R. (2d) 117, Cara Glen Estates Ltd. v. Mosychuk 2001 BCSC 761, 42 R.P.R. (3d) 107, McCarten v. Davis 2004 BCSC 962, and Lynch v. In-Situ Production Consultants Ltd., 2000 BCSC 1045. Again, these cases are of little assistance in interpreting section 274 of the Community Charter. Actions to enforce restrictive covenants are effectively actions based on property rights, generally arising out of contracts, and do not depend on the special powers granted to municipalities to act in the public interest.
[73] In support of his argument that section 274 does not contemplate the sort of remedy sought in this case, Mr. Ellis cites Fort Smith (Town) v. Burke, [1985] N.W.T.J. No. 44, [1986] N.W.T.R. 3 (S.C.). In that case, the legislation read as follows:
A … zoning by-law may be enforced, and anything done in contravention of any provisions contained therein may be restrained by order of a judge upon action brought by a council whether or not any penalty has been imposed for the contravention.
[74] The court found that the provision was not broad enough to allow a judge to make a mandatory order for the demolition of a residential structure built in contravention of a zoning bylaw. The case is of limited assistance, however, because the court specifically found that the words “by order of a judge” referred only to the power to restrain contraventions, and not to the power to enforce a bylaw. It was unnecessary, therefore, for the court to consider whether a mandatory order for demolition came within the ambit of the word “enforce”.
[75] The defendant also cites the case of Ontario (Minister of the Envi ron ment) v. National Hard Chrome Plating Co. (1993), 11 C.E.L.R.(N.S.) 73, in which the relevant statute provided:
Where any order is sue d by the Director is contravened such contravention may be restrained by action at the instance of the Minister.
Given the narrow wording of the statue, it is not surprising that the Ontario Court of Justice (General Division) held that it did not have the authority to grant a remedial cleanup order. Again, I find the case of very limited assistance in interpreting the broader language of s. 274 of the Community Charter.
[76] In interpreting s. 274, the court must be cognizant of the expressed legislative intention that municipal powers be broadly interpreted. Section 4(1) of the Community Charter is as follows:
4 (1) The powers conferred on municipalities and their councils by or under this Act or the Local Government Act must be interpreted broadly in accordance with the purposes of those Acts and in accordance with municipal purposes.
[77] Even without this sort of interpretive provision, the trend in Canadian case law has been towards broader interpretation of municipal powers. This trend was commented on by the Supreme Court of Canada in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, at paragraphs 6 and 8:
The evolution of the modern municipality has produced a shift in the proper approach to the interpretation of statutes empowering municipalities…. The "benevolent" and "strict" construction dichotomy has been set aside, and a broad and purposive approach to the interpretation of municipal powers has been embraced. This interpretive approach has evolved concomitantly with the modern method of drafting municipal legislation. Several provinces have moved away from the practice of granting municipalities specific powers in particular subject areas, choosing instead to confer them broad authority over generally defined matters. This shift in legislative drafting reflects the true nature of modern municipalities which require greater flexibility in fulfilling their statutory purposes. [Citations omitted]
…
A broad and purposive approach to the interpretation of municipal legislation is also consistent with this Court's approach to statutory interpretation generally. The contextual approach requires "the words of an Act . . . to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": E. A. Driedger, Construction of Statutes (2nd ed. 1983)….
[78] The purpose of section 274 of the Community Charter is to give a municipality broad powers to approach the court for the purposes of ensuring that its bylaws are not flouted. In keeping with this purpose, the word “enforce” should be broadly interpreted. I find that the plaintiff’s application for a mandatory injunction requiring Mr. Ellis to remediate the lands comes within the ambit of s. 274.
What Mandatory Order Should be Granted
[79] The plaintiff seeks an order requiring the defendant to obtain a geotechnical report from a registered professional approved by the plaintiff detailing the work required to restore the lands to their previous condition, and then to complete the prescribed work. For a variety of reasons, I do not think that such an order is appropriate.
[80] First, it is obvious to me that the lands cannot be restored to their previous condition. It is simply not possible to rebuild eroded slopes, stabilize them, and restore a mature forest. An order in the terms sought by the plaintiff would demand the impossible.
[81] Second, and in consequence, a significant degree of judgment must be applied in determining what work will suffice in restoring the lands. The exercise of that judgment is a task for the court, and it cannot properly be delegated to a geotechnical expert.
[82] Third, an order for the restoration of the lands would not be in keeping with the expressed purpose of the bylaw that established Komas Bluff PDA. The purpose of the bylaw was not preserve land in an unaltered state, nor even to protect the bluff. The bylaw was passed under the authority of s. 919.1(1)(b) of the Local Government Act, not s. 919.1(1)(a). Its purpose was not to protect the designated land itself, but rather to protect development from potentially hazardous conditions.
[83] While Mr. Ellis’s actions in this case amounted to a deliberate flouting of the bylaw, and undoubtedly are worthy of rebuke, a remedy granted under section 274 of the Community Charter is not intended to be penal in nature. The remedy must take into account the purposes for which the bylaw was enacted.
[84] Accordingly, I find that the court has jurisdiction in this case to require Mr. Ellis to undertake remedial work on the lands, but remedial work should be aimed at the enforcement of the statute according to its purposes. Here, that purpose is the “protection of development from hazardous conditions”.
[85] The evidence does not allow me to determine what needs to be done in order to protect development from hazardous conditions. It would appear to me that some work may be necessary in order to protect the foreshore, so that any future foreshore development will not be adversely affected. It may also be that some remedial work is necessary to protect existing development on the subject lands that lies outside of the Komas Bluff PDA.
[86] The parties have leave to come back before me, with proper evidence, to argue about the scope of remedial work necessary to fulfill the limited purposes of section 919.1(1)(b) of the Local Government Act. I will determine what work ought to be ordered, and will grant a mandatory injunction requiring Mr. Ellis to have the work performed, and requiring the remaining defendants to allow him access to their lands for the purpose of performing the work.
[87] It is not my intention to prevent the parties from reaching agreement, or proceeding cooperatively to a resolution of this matter. If the parties are able to agree on what work should be ordered, they may so advise me by letter to the trial coordinator addressed to my attention, and I will consider their proposal. I would also respectfully suggest that the parties consider jointly retaining a geotechnical expert to provide a report.
[88] Failing agreement, the parties have leave to schedule additional time before me to present argument as to the appropriate terms of a mandatory injunction.
Costs
[89] The plaintiff seeks special costs of this action against Mr. Ellis . I am inclined, at this juncture, to accede to that request, given that I have found a deliberate flouting of the bylaw for personal profit. I am, however, prepared to hear the parties’ submissions as to costs, and may be persuaded that a different order is more appropriate, particularly if there are matters relevant to costs that I have not yet been made aware of. I am prepared to hear brief oral submissions as to costs; counsel should arrange to appear before me before or after ordinary court hours on a day that I am sitting in Vancouver should they wish to present such argument.
Order
[90] I am, therefore, at this time granting:
a) a declaration that the defendant Ellis unlawfully contravened section 920(1)(d) of the Local Government Act by altering land within the Komas Bluff PDA without a development permit authorising such alteration; and
b) a permanent injunction against Mr. Ellis, restraining him from cutting trees on, clearing, developing, excavating or otherwise altering those portions of the lands that are within fifty metres of the top edge of the Komas Bluff, or causing any of those activities to be carried out on those portions of the lands, without first obtaining a development permit authorizing such activities.
[91] I have also determined that this is an appropriate case in which to grant a mandatory injunction against Mr. Ellis requiring him to undertake rehabilitative measures on the lands, limited to those measures necessary to fulfill the purposes of section 919.1(1)(b) of the Local Government Act. An ancillary order will require the Stonemans to allow him to undertake that work. I will determine the appropriate terms of the mandatory injunction after hearing further evidence and argument from the parties.
“ H.M. Groberman , J.”
The Honourable Mr. Justice H.M. Groberman
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