West Kelowna (District) v. Newcomb, 2015 BCCA 5

JudgeDonald, MacKenzie and Goepel, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateJanuary 09, 2015
JurisdictionBritish Columbia
Citations2015 BCCA 5;(2015), 365 B.C.A.C. 285 (CA)

West Kelowna v. Newcomb (2015), 365 B.C.A.C. 285 (CA);

    627 W.A.C. 285

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JA.041

District of West Kelowna (respondent/plaintiff) v. Keith Newcomb (respondent/appellant on cross-appeal/defendant) and Attorney General of British Columbia (appellant/respondent on cross-appeal/respondent pursuant to the Constitutional Question Act, R.S.B.C. 1996, c. 68)

(CA041172; 2015 BCCA 5)

Indexed As: West Kelowna (District) v. Newcomb

British Columbia Court of Appeal

Donald, MacKenzie and Goepel, JJ.A.

January 9, 2015.

Summary:

The Regional District of Central Okanagan's Zoning Bylaw 2000 No. 871 was made applicable to the District of West Kelowna upon its incorporation by Letters Patent in December 2007. It was amended in 2009 by the District's adoption of Zoning Bylaw Amendment 2009 No. 871.202 providing for the addition of s. 5.3, W1 Water Use (Recreational) Zone ("W1 Zone") (together "Bylaw 871"). The W1 Zone provisions permitted "temporary boat moorage accessory to the use of the immediately abutting upland parcel". In 2010, the Province of British Columbia granted a Licence of Occupation (the "Licence") to the District pursuant to s. 39 of the Land Act over Crown foreshore of a portion of Okanagan Lake fronting on Gellatly Bay, for public recreation and park purposes. The area subject to the Licence represented a portion of the area covered by the W1 Zone. Newcomb moored his houseboat in Gellatly Bay until the District issued a notice to relocate in June 2010 pursuant to the Licence. Newcomb moved his houseboat to other parts of Okanagan Lake, still within the W1 Zone. Newcomb did not own an upland parcel. The District applied for declarations that Newcomb was in breach of the Licence and the provisions of the W1 Zone as well as injunctive relief. Newcomb challenged the constitutional validity of Bylaw 871.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1411, found the portion of Bylaw 871 creating and defining the W1 Zone to be constitutionally valid as being in pith and substance about land use and regulation of land use under property and civil rights (s. 92(13)), and matters of a merely local or private nature (s. 92(16)), both within provincial jurisdiction under the Constitution Act, 1867. While finding Bylaw 871 did not purport to regulate the operation of boats or other marine vessels, the judge determined it did impact moorage by permitting temporary boat moorage and moorage buoys only if accessory to the use of the immediately abutting upland parcel. Applying the doctrine of interjurisdictional immunity to Bylaw 871, the judge held it could not prohibit temporary moorage of vessels which fell within the protected "core" of shipping and navigation, a matter exclusively within federal jurisdiction. The judge applied the same analysis to the Licence to the extent it prohibited even temporary moorage directly associated with the active use of recreational vessels within the Licence Area. Thus, the judge concluded both the W1 Zone provisions of Bylaw 871 and the Licence had to be "read down so as to have no application to temporary moorage, directly incidental and related to, the active recreational use of vessels in the waters within the W1 Zone". Nevertheless, she found Newcomb to be in breach of the Licence and the W1 Zone provisions "by mooring his houseboat ... for times and purposes that were not temporary and not directly incidental and related to his active and recreational use of [his houseboat]". The judge ordered that Newcomb was restrained from mooring any houseboat or any other vessel within the Licence Area and within the W1 Zone, for any time or any purpose which was not temporary and not directly related and incidental to the recreational use of the houseboat or vessel. In a decision reported at [2013] B.C.T.C. Uned. 2299, the trial judge ordered that Newcomb pay costs to the District on Scale B. The Province appealed the judge's order on the basis that she erred in applying the doctrine of interjurisdictional immunity to the Licence. However, the Province abandoned its appeal after the parties agreed that the judge's order would be amended to separate her declaration as to the Licence from her declaration regarding the W1 Zone provisions of Bylaw 871. Newcomb cross-appealed contending that the judge erred: 1. in concluding the W1 Zone provisions of Bylaw 871 were constitutionally valid as being in pith and substance related to property and civil rights in the province; and 2. in failing to award him costs on the basis of divided success in the proceeding, and in concluding the case was not one of public interest that warranted either costs in his favour or no award of costs.

The British Columbia Court of Appeal held that the judge correctly applied settled principles of constitutional law in determining the W1 Zone provisions of Bylaw 871 were in pith and substance within provincial jurisdiction. In addition, the judge correctly read down the impugned W1 Zone provisions to avoid their infringing upon exclusive federal jurisdiction over navigation and shipping. The court therefore dismissed this ground of Newcomb's cross-appeal. However, the court allowed Newcomb's cross-appeal to the extent of setting aside the judge's order as to costs so that the District and Newcomb would bear their own costs of the proceeding below. Although Newcomb did not meet the test for public interest litigation, his partial success in defending the action with respect to those who wished to moor within the W1 Zone was significant. Success was therefore divided and the judge erred in determining the District was the successful party. The court ordered that the District receive 80 per cent of its costs on appeal.

Constitutional Law - Topic 2507

Determination of validity of statutes or Acts - General principles - Reading down - See paragraphs 18 to 38.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - See paragraphs 18 to 38.

Constitutional Law - Topic 2586

Determination of validity of statutes or Acts - Extrinsic aids in determining legislative subject matter - Extrinsic materials - See paragraphs 22 to 23.

Constitutional Law - Topic 2950

Determination of validity of statutes or Acts - Pith and substance or matter - General principles - See paragraphs 18 to 38.

Constitutional Law - Topic 5952

Federal jurisdiction (s. 91) - Navigation and shipping - Scope of power - See paragraphs 18 to 38.

Constitutional Law - Topic 7227

Provincial jurisdiction (s. 92) - Property and civil rights - Land - Use - See paragraphs 18 to 38.

Constitutional Law - Topic 7518

Provincial jurisdiction (s. 92) - Matters of local or private nature - Land use planning - See paragraphs 18 to 38.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement - Successful party - Exceptions - Public interest or test case - See paragraphs 46 to 52.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to - Where success or fault divided - See paragraphs 52 to 56.

Cases Noticed:

Reference Re Securities Act, [2011] 3 S.C.R. 837; 424 N.R. 1; 519 A.R. 63; 539 W.A.C. 63; 2011 SCC 66, refd to. [para. 19].

Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 S.C.R. 536; 407 N.R. 102; 2010 SCC 39, refd to. [para. 19].

Quebec (Attorney General) v. Lacombe et al. (2010), 407 N.R. 1; 2010 SCC 38, refd to. [para. 19].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al. (2002), 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 19].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 19].

Ontario (Attorney General) v. Chatterjee, [2009] 1 S.C.R. 624; 387 N.R. 206; 249 O.A.C. 355; 2009 SCC 19, refd to. [para. 19].

Reference Re Assisted Human Reproduction Act, [2010] 3 S.C.R. 457; 410 N.R. 199; 2010 SCC 61, refd to. [para. 19].

Bell Canada v. Commission de la santé et de la sécurité du travail (Qué.) and Bilodeau et al., [1988] 1 S.C.R. 749; 85 N.R. 295; 15 Q.A.C. 217, refd to. [para. 19].

Burrardview Neighbourhood Association v. Vancouver (City) et al. (2007), 241 B.C.A.C. 1; 399 W.A.C. 1; 362 N.R. 208; 2007 SCC 23, consd. [para. 19].

British Columbia (Attorney General) v. Lafarge Canada Inc. et al. - see Burrardview Neighbourhood Association v. Vancouver (City) et al.

R. v. Will (1999), 44 O.R.(3d) 315 (Prov. Div.), refd to. [para. 27].

Procureure Générale du Québec v. Larochelle (2003), 131 A.C.W.S.(3d) 846 (Que. C.A.), refd to. [para. 27].

R. v. Lewis, 2009 BCPC 386, dist. [para. 27].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 27].

Ryan Estate et al. v. Universal Marine Ltd. et al. (2013), 447 N.R. 1; 339 Nfld. & P.E.I.R. 312; 1054 A.P.R. 312; 2013 SCC 44, consd. [para. 30].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2003), 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 40].

British Columbia (Minister of Water, Land and Air Protection) et al. v. Information and Privacy Commissioner (B.C.) et al. (2005), 214 B.C.A.C. 158; 353 W.A.C. 158; 2005 BCCA 368, refd to. [para. 47].

Guide Outfitters Association v. British Columbia (Information and Privacy Commissioner) - see British Columbia (Minister of Water, Land and Air Protection) et al. v. Information and Privacy Commissioner.

MacDonald v. University of British Columbia, [2004] B.C.T.C. 412; 2004 BCSC 412, refd to. [para. 47].

Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.C. 237; 2009 BCCA 563, refd to. [para. 49].

Statutes Noticed:

Constitution Act, 1867, sect. 91 [para. 1]; sect. 92(13), sect. 92(16) [para. 12].

Counsel:

N.E. Brown, for the appellant;

B. Williamson, for the respondent, District of West Kelowna;

W.P. Lightbody, Q.C., and R.S. Watts, for the respondent, Keith Newcomb.

This appeal and cross-appeal were heard on October 21 and 22, 2014, at Vancouver, B.C., before Donald, MacKenzie and Goepel, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by MacKenzie, J.A., on January 9, 2015.

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9 practice notes
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    • December 13, 2018
    ...a Merely Local or Private Nature in the Province” (s. 92(16)): West Kelowna (District) v. Newcombe, 2013 BCSC 1411 [West Kelowna], aff’d 2015 BCCA 5 [West Kelowna BCCA]; Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd., 2007 BCSC 892, aff’d 2008 BCCA 544; British Col......
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    ...the injunction initially sought by the Law Society was “overly broad”. Relying on West Kelowna (District) v. Newcomb, 2015 BCCA 5 at paras. 51–52, he argues the Law Society’s “uncompromising position” in the court below should disentitle it to ......
  • Marine Harvest Canada Inc. v. Morton, 2018 BCSC 1302
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    • August 2, 2018
    ...terms restricting the use of specific areas of water: see Boon at paras. 51-53; West Kelowna (District) v. Newcombe, 2013 BCSC 1411, aff’d 2015 BCCA 5; and Cermaq Canada Ltd. v. Stewart, 2017 BCSC X. irreparable harm [162] Whether harm is irreparable depends upon the nature of the harm rath......
  • Maddock v Law Society of British Columbia,
    • Canada
    • Court of Appeal (British Columbia)
    • February 3, 2023
    ...the injunction initially sought by the Law Society was “overly broad”. Relying on West Kelowna (District) v. Newcomb, 2015 BCCA 5 at paras. 51–52, he argues the Law Society's “uncompromising position” in the court below should disentitle it to an awar......
  • Request a trial to view additional results
8 cases
  • Vancouver (City) v. Karuna Health Foundation, 2018 BCSC 2221
    • Canada
    • Supreme Court of British Columbia (Canada)
    • December 13, 2018
    ...a Merely Local or Private Nature in the Province” (s. 92(16)): West Kelowna (District) v. Newcombe, 2013 BCSC 1411 [West Kelowna], aff’d 2015 BCCA 5 [West Kelowna BCCA]; Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd., 2007 BCSC 892, aff’d 2008 BCCA 544; British Col......
  • Maddock v. Law Society of British Columbia,
    • Canada
    • Court of Appeal (British Columbia)
    • February 3, 2023
    ...the injunction initially sought by the Law Society was “overly broad”. Relying on West Kelowna (District) v. Newcomb, 2015 BCCA 5 at paras. 51–52, he argues the Law Society’s “uncompromising position” in the court below should disentitle it to ......
  • Marine Harvest Canada Inc. v. Morton, 2018 BCSC 1302
    • Canada
    • Supreme Court of British Columbia (Canada)
    • August 2, 2018
    ...terms restricting the use of specific areas of water: see Boon at paras. 51-53; West Kelowna (District) v. Newcombe, 2013 BCSC 1411, aff’d 2015 BCCA 5; and Cermaq Canada Ltd. v. Stewart, 2017 BCSC X. irreparable harm [162] Whether harm is irreparable depends upon the nature of the harm rath......
  • Maddock v Law Society of British Columbia,
    • Canada
    • Court of Appeal (British Columbia)
    • February 3, 2023
    ...the injunction initially sought by the Law Society was “overly broad”. Relying on West Kelowna (District) v. Newcomb, 2015 BCCA 5 at paras. 51–52, he argues the Law Society's “uncompromising position” in the court below should disentitle it to an awar......
  • Request a trial to view additional results
1 firm's commentaries
  • Maritime Law – Recent Key Judgments – 2015
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    • Mondaq Canada
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