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BYLAWS AND RESOLUTIONS - Interpretation - Broad and purposive approach

Friday, February 03, 2017 @ 3:33 PM  

Appeal by Tavolini Ventures and Qterra Properties from a decision upholding the denial of its application for a business licence. The property was governed by a land use contract (LUC), which was entered into in 1976. The LUC restricted the use of the land to that permitted by the commercial zoning bylaw in place at the time of the contract, which included “retail trade”. Retail trade in the zoning bylaw was defined as “resale to the general public for personal or household consumption”. In 2016, the appellant sought to establish a retail liquor store on the property and Tavolini applied for a business licence from Delta. Delta rejected the application because when the LUC was signed, provincial law prohibited the proposed use. The appellants filed an application for judicial review of the decision, seeking a declaration that the liquor store was a permitted use and an order of mandamus compelling Delta to issue a business licence. The chambers judge dismissed the petition, finding that the liquor store was not a permitted use under the LUC because of the circumstance at the time the original parties entered into the LUC. The appellants appealed the decision of the chambers judge on the basis that he incorrectly interpreted the LUC.

HELD: Appeal allowed. An order in the nature of mandamus was granted. The permitted uses were defined by the bylaw incorporated into the LUC. Bylaw interpretation was reviewed on the correctness standard. The ordinary meaning of the bylaw definition of “retail trade” included a liquor store. Nothing in the LUC or the legislative scheme displaced the ordinary meaning. Delta’s interpretation created an impermissible distinction based on users rather than assessing whether the proposed use was permitted under the LUC.

Qterra Properties Ltd. v. Delta (District), [2016] B.C.J. No. 2703, British Columbia Court of Appeal, P.D. Lowry, P.M. Willcock and J.E.D. Savage JJ.A., December 22, 2016. Digest No. 3636-012