R. v. How (H.) et al., (2009) 347 Sask.R. 63 (QB)

• Judge: Foley, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 16, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 347 Sask.R. 63 (QB);2009 SKQB 490

R. v. How (H.) (2009), 347 Sask.R. 63 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JA.042

Helene How (appellant) v. Her Majesty the Queen (respondent)

(2009 Q.B.C.A. No. 3; Information No. 104997)

David How (appellant) v. Her Majesty the Queen (respondent)

(2009 Q.B.C.A. No. 2; Information No. 104998; 2009 SKQB 490)

Indexed As: R. v. How (H.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Foley, J.

December 16, 2009.

Summary:

The Hows used their residential property for their hobby of restoring farm tractors. Some of the restored tractors were displayed on their lawn. They were convicted of violating the city's bylaw 7800, which prohibited storing and repairing vehicles except those "primarily used for personal transportation, recreation and non-commercial gardening and yard maintenance". The Hows appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Land Regulation - Topic 2601

Land use control - Zoning bylaws - Enactment and interpretation - Interpretation of zoning bylaws - The Hows used their residential property for their hobby of restoring farm tractors - Some of the restored tractors were displayed on their lawn - They were convicted of violating the city's bylaw 7800, which prohibited storing and repairing vehicles except those "primarily used for personal transportation, recreation and non-commercial gardening and yard maintenance" - The Hows appealed, asserting that because the vehicles came into existence through their hobby, their use was a permitted one - The Saskatchewan Court of Queen's Bench dismissed the appeal - The trial judge's findings were both reasonable and correct - The bylaw had only one reasonable interpretation, which was that advanced by the city - To adopt the Hows' interpretation would be to sanction the antithesis of "regulated development" or "amenity of the area" - The focus would shift from the actual use being made of the land to the purpose or incentive for the activity of a particular actor - On any sensible, reasonable reading of the bylaw, it was apparent that the thrust of the provisions was to enable residential householders to store a particular vehicle of a recreational nature at their residence.

Land Regulation - Topic 2654.1

Land use control - Zoning bylaws - Prohibited uses - Parking vehicles on residential or other properties - [See Land Regulation - Topic 2601 ].

Land Regulation - Topic 2666

Land use control - Zoning bylaws - Permitted or discretionary uses - Recreational - [See Land Regulation - Topic 2601 ].

Cases Noticed:

Northern Sunrise (County) v. De Meyer et al. (2009), 454 A.R. 88; 455 W.A.C. 88; 6 Alta. L.R.(5th) 63; 2009 ABCA 205, refd to. [para. 4].

R. v. Morrisseau (J.) (2003), 240 Sask.R. 222; 2003 SKPC 173, refd to. [para. 13].

Hutterian Brethren Church of Eagle Creek Inc. v. Eagle Creek No. 376 (Rural Municipality) (1982), 21 Sask.R. 361; 144 D.L.R.(3d) 685 (C.A.), refd to. [para. 14].

Pitt Meadows (District) v. Jones (Ron) Ltd. (2004), 197 B.C.A.C. 57; 323 W.A.C. 57; 28 B.C.L.R.(4th) 324; 2004 BCCA 277, refd to. [para. 14].

1254582 Alberta Ltd. et al. v. Edmonton (City) (2009), 448 A.R. 58; 447 W.A.C. 58; 306 D.L.R.(4th) 31; 2009 ABCA 4, leave to appeal denied (2009), 398 N.R. 398 (S.C.C.), refd to. [para. 14].

Statutes Noticed:

Saskatoon (City) Bylaws, Zoning Bylaws, Bylaw No. 7800, sect. 5.17(8) [para. 6].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 18].

Counsel:

Jay D. Watson, for Helene How and David How;

Kim M. Bodnarchuk, for the City of Saskatoon.

This appeal was heard by Foley, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on December 16, 2009.