Knapp et al. v. Faro (Town) et al., 2010 YKCA 7

• Judge: Saunders, Bennett and Garson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 17, 2010
• Jurisdiction: Yukon
• Citations: 2010 YKCA 7;(2010), 291 B.C.A.C. 224 (YukCA)

Knapp v. Faro (2010), 291 B.C.A.C. 224 (YukCA);

    492 W.A.C. 224

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. AU.016

Angelika Knapp dba A. Knapp Accounting Services and North Star Adventures, a partnership between Angelika Knapp and Eric Dufresne (appellants/petitioners) v. Town of Faro, Town of Faro Board of Variance and Town of Faro Licensing Appeal Board (respondents/respondents)

(09-YU635; 2010 YKCA 7)

Indexed As: Knapp et al. v. Faro (Town) et al.

Yukon Court of Appeal

Saunders, Bennett and Garson, JJ.A.

August 19, 2010.

Summary:

Knapp and Dufresne, who operated a wilderness tourism business (North Star Adventures) from their property in the Town of Faro which was zoned as "Hinterland", were denied a business licence and a development permit, because they resided on the property. Residential use was said by the Town to be outside the permitted uses for property zoned as "Hinterland". Knapp and North Star Adventures filed a petition challenging the decisions and actions taken by the Town and sought declaratory relief.

The Yukon Supreme Court, in a decision reported [2009] Yukon Cases Uned. (SC) 34, dismissed the applications for declarations, but quashed certain decisions of the Board of Variance and Licensing Appeal Board relating to the business licence and development permit. Those matters were remitted to the relevant bodies for fresh determination. Knapp and North Star Adventures appealed the court's refusal to grant the declarations sought.

The Yukon Court of Appeal dismissed the appeal.

Land Regulation - Topic 2610

Land use control - Zoning bylaws - Enactment and interpretation - Validity of zoning bylaw - Uncertainty and discrimination - [See Municipal Law - Topic 3846 ].

Land Regulation - Topic 2613

Land use control - Zoning bylaws - Enactment and interpretation - Validity of zoning bylaw not conforming to master plan - [See Municipal Law - Topic 3846 ].

Land Regulation - Topic 2668.2

Land use control - Zoning bylaws - Permitted or discretionary uses - Hinterland - [See Municipal Law - Topic 3846 ].

Municipal Law - Topic 3846

Bylaws - Quashing bylaws - Grounds for judicial interference - Discrimination - Knapp and Dufresne, who operated a wilderness tourism business (North Star Adventures) from their property in the Town of Faro which was zoned as "Hinterland", were denied a business licence and a development permit, because they resided on the property - Residential use was said by the Town to be outside the permitted uses for property zoned as "Hinterland" - Knapp and North Star Adventures (the petitioners) challenged the Town's decisions and actions and sought declaratory relief - An applications judge dismissed the applications for declarations, but quashed certain decisions of the municipality's boards relating to the business licence and development permit, remitting those matters for fresh determination - The petitioners appealed the judge's refusal to grant declaratory relief - The Yukon Court of Appeal dismissed the appeal - The judge was correct in his analysis of the applicable bylaw relating to permitted uses and in determining that the Town was not acting improperly (i.e., there was no discrimination in the municipal law sense) - The judge was also correct in finding that there was no conflict between the zoning bylaw and the official community plan - See paragraphs 27 to 52.

Practice - Topic 6037.3

Judgments and orders - Reasons for judgment after trial or application - Effect of including reference to reasons for judgment in order - The petitioners challenged a municipality's decisions denying them a business licence and development permit and sought declaratory relief - The applications judge quashed a decision relating to a business licence, remitting the matter to the relevant body - The petitioners appealed - The Yukon Court of Appeal noted that the relief requested on appeal contested the application judge's reasons for judgment, likely because the order directed that the matters be resolved "in accordance with the reasons for judgment" - The appellate court stated that an appeal could only be brought from an order and not from the reasons for judgment - Further, an order ought not to recite or include either arguments or reasons - While it might be thought that the inclusion of the direction that matters be resolved "in accordance with the reasons for judgment" made the reasons for judgment part of the order, and therefore appealable on a stand alone basis, the court stated that that view was not correct - That train of reasoning illustrated why it was not sound practice to include in an entered order reference to reasons for judgment - It could be assumed that any decisions made on remission would be made in accordance with the law as it is understood to be, including as it may have been elucidated by reasons for judgment - See paragraphs 6 and 7.

Cases Noticed:

Lake v. Lake, [1955] 2 All E.R. 538 (C.A.), refd to. [para. 6].

Morrison v. Coulter et al. (1991), 3 B.C.A.C. 24; 7 W.A.C. 24; 82 D.L.R.(4th) 568 (C.A.), refd to. [para. 6].

Victoria (Bishop) v. Victoria (City), [1933] 4 D.L.R. 524; [1933] 3 W.W.R. 332 (B.C.C.A.), refd to. [para. 6].

Bauer v. Insurance Corp. of British Columbia (1989), 38 B.C.L.R.(2d) 232; 41 C.C.L.I. 45 (S.C.), refd to. [para. 6].

British Columbia (Attorney General) v. Lindsay, [2009] B.C.A.C. Uned. 25; 2009 BCCA 159, refd to. [para. 6].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 27].

Gibson v. Insurance Corp. of British Columbia (2008), 255 B.C.A.C. 98; 430 W.A.C. 98; 2008 BCCA 217, refd to. [para. 27].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193; 106 D.L.R.(3d) 212, refd to. [para. 39].

Counsel:

S. Roothman, for the appellants;

D. Hoffman, for the respondents.

This appeal was heard in Whitehorse, Yukon Territory, on May 17, 2010, by Saunders, Bennett and Garson, JJ.A., of the Yukon Court of Appeal. The Court of Appeal rendered decision at Vancouver, British Columbia, on August 19, 2010, when Saunders, J.A., filed the following written reasons.