In Columbia Shuswap (Regional District) v Jones, 2018 BCSC 1776 the Columbia Shuswap Regional District (CSRD) recently obtained a judgment from the B.C. Supreme Court granting declaratory and injunctive relief against property owners in a case involving a zoning bylaw enforcement and “home occupation” matter.
The decision of Mr. Justice Marchand is available here. His Lordship agreed with the CSRD that the construction contracting and snow removal business activities being carried out by the property owners in and around their family dwelling did not fit within the definition of a “home occupation” for the purposes of the zoning bylaw. The Court found that the owners’ activities altered the residential character of the property and occupied more than 100 m2 of gross floor area, contrary to the zoning bylaw. In fact, the court found that the owners’ use of the property was more properly characterized as a “general trade contracting office and works yard”, which was not a permitted use. In coming to that conclusion, the Court applied the presumption of “implied exclusion” – the use was expressly permitted in other zones, therefore it was presumed that the use had been deliberately excluded from the list of permitted uses applicable to the owners’ property. Accordingly, the Court ordered that the property owners are enjoined from continuing the commercial activity on the property, though His Lordship provided a period of time for the owners to transition their business to an alternative property that is zoned for such activity.
The CSRD was also successful in obtaining a declaration that the home contained both a primary and secondary dwelling under the terms of the zoning bylaw, and the Court granted a mandatory injunction requiring the property owners to bring the residence into compliance with the fire safety and other relevant provisions of the zoning bylaw relating to secondary dwellings.
