2006 BCCA 251 R. v. Reid

Before:	The Honourable Madam Justice Prowse
	The Honourable Madam Justice Newbury
	The Honourable Madam Justice Kirkpatrick

T. Zworski	Counsel for the Appellant
J. Baker	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
February 24, 2006
Place and Date of Judgment:	Vancouver, British Columbia
May 18, 2006
Written Submissions Received:	March 8, 16 and 22, 2006

Dissenting Written Reasons by:
The Honourable Madam Justice Prowse
Majority Written Reasons by:
The Honourable Madam Justice Newbury
Concurred in by:
The Honourable Madam Justice Kirkpatrick

Dissenting Reasons for Judgment of the Honourable Madam Justice Prowse:

NATURE OF APPEAL

[1] The City of Vancouver (the “City”) is appealing, pursuant to s. 124 of the Offence Act, R.S.B.C. 1996, c. 338, from Mr. Reid’s acquittal on a charge that:

On or about October 1, 2001, being the owner of land and building at 3570 McGill Street, Vancouver, British Columbia, unlawfully did use said land, on which a development has taken place since June 18, 1956, to wit, alteration of the configuration of land, without a valid subsisting Development Permit having been issued for said development, contrary to the form of the enactment in such case made and provided.

[2] The relevant enactment referred to in the Information is s. 6.4 of the City of Vancouver Zoning and Development By-law No. 3575 (the “By-law”), enacted pursuant to s. 565A of the Vancouver Charter, S.B.C. 1953, c. 55 (the “Charter”).

[3] At trial, Judicial Justice of the Peace Osborne found that, although Mr. Reid’s work on his land altered the configuration of his land, it did not constitute a “development” as that term is defined in s. 559 of the Charter and used in the By-law. This finding was upheld by Mr. Justice Burnyeat on appeal to the Supreme Court. Leave to appeal to this Court was granted on May 5, 2005.

ISSUES ON APPEAL

[4] The principal issue on appeal is whether Mr. Justice Burnyeat erred in his interpretation of the word “development” in s. 559 of the Charter and in the By-law.

BACKGROUND

[5] In July 2001, Mr. Reid constructed a retaining wall along the west and south boundary of his residential property on McGill Street in Vancouver. The wall was approximately 122 feet long on the west boundary, 16-18 feet long on the south boundary and between three and four feet in height. Mr. Reid then deposited and distributed soil, gravel and other materials on his property (the “materials”) such that the backfilled area covered an area approximately 20’ x 20’ and reached a height of three feet where it adjoined the retaining wall at the southwest corner of the property.

POSITION OF THE PARTIES

[6] The City maintains that the deposit and distribution of materials adjacent to the retaining wall altered the configuration of the land so as to constitute a development within the meaning of s. 559 of the Charter, and that Mr. Reid used the land “without a valid subsisting Development Permit having been issued for said development …”, contrary to the By-law. In general terms, the City submits that Mr. Justice Burnyeat erred in adopting an unduly narrow approach to the interpretation of the word “development” and to the powers of the City to regulate development under s. 565A(a) and (h) of the Charter. More specifically, the City submits that Mr. Justice Burnyeat erred in:

(1) failing to recognize that regulating the alteration of existing yards and other open spaces as set out in the Preamble is one of the objectives of the By-law;

(2) failing to recognize that the definition of “construction” in s. 304 is not exhaustive;

(3) narrowly applying the definition of “construction” in s. 304 of the Charter to the definition of “development” by failing to realize that the By-law and s. 559 and 565A of the Charter require a broader and more liberal interpretation of “construction”;

(4) finding that “land” cannot be constructed; and

(5) basing his interpretation of “other operations” on his narrow interpretation of “construction” by limiting it to other operations related to buildings and excluding operations relating only to land.

[7] In response, Mr. Reid maintains that the disposition and distribution of materials on his property amounted to mere landscaping and that he has neither altered the configuration of his land nor carried out a “development” which requires a permit. In short, he supports the decision of Mr. Justice Burnyeat.

[8] It is common ground that a development permit was not required to construct the retaining wall.

RELEVANT STATUTORY PROVISIONS

[9] Section 565A of the Charter (found under Part XXVII, Planning and Development, Zoning) gives the City the power to make by-laws to regulate development within the City and to require development permits prior to any development taking place. It provides:

565A. Council may make by-laws

(a) prohibiting any person from undertaking any development without having first obtained a permit therefor. Such permit shall hereinafter be referred to as a “development permit”;

...

(h) prohibiting the use or occupancy of any land or building on or in which a development has taken place since the eighteenth day of June, 1956, without a development permit;

[10] Section 559 of the Charter contains the following relevant definitions:

“development” means a change in the use of any land or building, or the carrying-out of any construction, engineering or other operations in, on, over, or under land...

...

“building” and “construction” mean “building” and “construction” as defined in section 304;

...

[11] Section 304 (found in Part IX of the Charter, “Buildings”) defines “building” and “construction” as follows:

“building” includes structures of every kind, excavations in respect of any structure and everything so attached to a structure as to constitute it real property

“construction” includes erection, repair, alteration, enlargement, addition, demolition, removal, and excavation.

[12] Pursuant to the powers granted to it under 565A, the City enacted the By-law to regulate, amongst other things, alterations to existing yards. The Preamble to the By-law states that it is:

A By-law to regulate, within the City of Vancouver, the development of land, as defined herein, with respect to the use of the same, and the location, design, construction and use of buildings and structures for residence, commerce, trade, industry, recreation, culture, and other purposes; to regulate and limit the height, number of storeys and the size of buildings and other structures to be erected hereafter or the alterations of existing yards, courts and other open spaces; to prescribe building lines; ... to conserve and stabilize the value of property; to provide adequate open spaces for light and air; to protect and improve amenity; ... to promote health, safety and the general welfare; and for all or any of the said purposes to divide the City into districts of such number, shape and area as may be deemed best suited to carry out these regulations in accordance with a Town Plan and to provide for the granting or refusal of development permits in accordance therewith including where necessary the imposition of conditions relative to the granting of such permits, and to provide for the enforcement of this By-law and to prescribe penalties for the violation of its provisions.

[Emphasis added.]

[13] Section 6.4 of the By-law, under which Mr. Reid was charged, provides:

6.4 ... no person shall:

(a) undertake any development on land or in any building;

(b) use or occupy any land or building on which a development has taken place since June 18, 1956 or

...

unless a valid development permit has been issued therefor and has not expired.

[Emphasis added.]

DECISION UNDER APPEAL

[14] Mr. Justice Burnyeat agreed with JJP Osborne that Mr. Reid’s deposit and distribution of materials on the property altered the configuration of land, but that it did not amount to a change in use of the land within the first part of the definition of “development” under s. 559 of the Charter. (The finding that there was no change in use of the land within the meaning of s. 559 is not challenged on appeal.)

[15] Mr. Justice Burnyeat then went on to consider whether there had been any “construction, engineering or other operations in, on, over, or under land ...” within the second part of the definition of “development” in s. 559. He concluded that there had not been. He found that the definition of “construction” in s. 304 referred only to the construction of buildings and not to an alteration in the configuration of land, except where there was an ancillary “excavation” on land for the purpose of construction. His finding in that regard is set forth at para. 37 of his reasons for judgment:

Dealing first with “construction ... in, on, over or under land or land covered by water” as that term is defined in s. 559 of the Charter and “construction” as that term is defined under s. 304 of the Charter, (“erection, repair, alteration, enlargement, addition, demolition, removal and excavation”), I can not conclude that there has been any construction “in, on over or under land”. I am satisfied that the definition of “construction” set out in s. 304 of the Charter refers to any existing buildings or about to be created buildings on a property and not to the alteration of the configuration of land. The exception would be where the “erection, repair, alteration, enlargement, addition, demolition, [and] removal” of a building or a structure results in an ancillary “excavation” of the material on the land for the purposes of construction.

[16] Mr. Justice Burnyeat also concluded that “construction” within the definition of “development” had to be “on” land, rather than “of” land. In that regard, he stated (at para. 38):

... I can not conclude that the Legislature contemplated that “construction” would include moving materials such as gravel, sand, and soil from one part of a property to another even though the deposit of those materials initially resulted in a change in the configuration of the land and a movement of those materials may result in another change in the configuration of the land. It cannot be said that there was “construction” of land. Land is not “constructed”.

[17] Mr. Justice Burnyeat went on to find that the movement of the materials on the property from one place to another did not amount to “engineering”. (This finding is not challenged on appeal.)

[18] Finally, Mr. Justice Burnyeat concluded that Mr. Reid’s actions did not amount to the carrying out of “other operations” on the property. In that regard, he stated (at para. 44):

While I accept the submission of the City that the ejusdem generis rule should apply to the phrase “or other operations” in the context of “any construction, engineering or other operations”, I am satisfied that the definition of “construction” as set out in s. 304 of the Charter and the common meaning of “engineering” set out in The New Oxford Dictionary of English limits the use of the words to “other operations” to the context of the construction of “buildings” (defined under s. 304 of the Charter to include “structures of any kind, excavations in respect of any structure”) plus the engineering of such construction. While the movement of gravel, sand, or soil on to the Property and the movement of those materials from one part of a Property to another might well constitute “other operations” in a different context, it is not possible to bring it within the ejusdem generis rule of interpretation or a broad and purposive interpretation of the Bylaw in order to conclude that what was done was “... other operations in, on, over or under land or land covered by water.

[19] In the result, Mr. Justice Burnyeat dismissed the City’s appeal.

DISCUSSION

(a) Introduction

[20] On appeal, the City abandoned the position it took before JJP Osborne and Mr. Justice Burnyeat that, by depositing and distributing the materials on his land, and thereby altering the configuration of his land, Mr. Reid changed the use of his land within the first branch of the definition of “development” under s. 559 of the Charter. Rather, the City is relying entirely on the second branch of the definition of “development” under s. 559. It submits that Mr. Reid altered the configuration of his land “by the carrying-out of any construction ... or other operations in, on, over, or under land ...” and thereafter “unlawfully did use said land ... without a valid subsisting Development Permit having been issued”, contrary to s. 6.4 of the By-law.

(b) Alteration of the Configuration of Land

[21] Mr. Reid challenges the finding of JJP Osborne, confirmed by Mr. Justice Burnyeat, that Mr. Reid altered the configuration of his land by depositing and distributing the materials on the property, thereby raising the level of a 20’ x 20’ segment of the property abutting the retaining wall. This finding, which is essentially one of fact, is fundamental to the City’s position, since the City argues that the alteration of the configuration of Mr. Reid’s land by depositing and distributing the materials is the “development” within the meaning of s. 6.4 of the By-law for which a permit was required.

[22] In my view, the finding that the deposit and distribution of materials by Mr. Reid on his property constituted an alteration of the configuration of land is supported by the evidence and is not the product of palpable and overriding error. The effect of this activity was to raise the level of the land over an area 20’ x 20’ by up to three feet or so to the point where it abutted the southwest corner of the property. The photographs depicting the pile of materials on Mr. Reid’s property and the elevation of the height of the property after the materials were distributed support this finding. This activity cannot be equated with the simple deposit or distribution of small volumes of soil or other materials to make flower beds or to reconfigure existing flower beds such as is done by hundreds of gardeners every spring in tending their gardens. Those types of deposits do not alter the configuration of land and could not reasonably be viewed as a “development” requiring a permit.

(c) Was the Alteration of the Configuration of the Land a “Development”?

[23] The question remains whether the alteration of the configuration of Mr. Reid’s land resulting from the deposit and distribution of materials constituted a “development” within the second branch of the definition of that term in s. 559. In other words, did it amount to “the carrying out of any construction … or other operations in, on, over, or under land …”?

[24] In answering this question, it is noteworthy that the Supreme Court of Canada has rejected a narrow approach to the interpretation of municipal enabling statutes in favour of a more liberal approach, which generally calls for greater deference to municipal authorities carrying out their mandate. (See, for example, Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 23, (per McLachlin J., as she then was, speaking for the minority, but later affirmed in majority judgments), Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13, 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40, and United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485,2004 SCC 19.)

[25] On appeal, the City raised several arguments with a view to demonstrating that the alteration of the configuration of land in these circumstances amounted to “construction” within the meaning of s. 559 of the Charter. In essence, the City submitted that Mr. Justice Burnyeat erred in limiting “construction” to the construction of buildings or related excavations. The City went on to submit that the narrow interpretation given to the word “construction” resulted in a similarly narrow interpretation of the phrase “other operations ... on ... land”.

[26] In my view, it is not necessary to determine whether the alteration of the configuration of Mr. Reid’s land amounted to “any construction on ... land” within the meaning of s. 559. Assuming that Mr. Justice Burnyeat was correct in limiting “construction” to building or buildings (and related excavation), I am satisfied that the alteration of the configuration of Mr. Reid’s land in these circumstances is readily captured by the words “other operations ... on ... land.” Unlike the word “construction”, which takes its context from the section of the Charter dealing with building and buildings, “other operations” is a more expansive phrase which is specifically used in the context of Part XXVII, Planning and Development. By restricting this phrase to the context of building and buildings as he did in the extract from his reasons quoted at para. 18, supra, Mr. Justice Burnyeat adopted an unduly narrow application of the ejusdem generis rule of statutory interpretation, and of the nature of municipal powers. In my view, his approach is inconsistent with that taken by the Supreme Court of Canada in the authorities to which I earlier referred.

[27] The words “other operations” are broad enough, in context, to cover a wide range of works or activities which have a significant impact on land and which extend beyond what would generally be viewed as “construction” or “engineering”. In my view, the alteration of the configuration of land by Mr. Reid in these circumstances fits within this extended definition of “development” under s. 559 and can reasonably be viewed as a proper subject for regulation by the City pursuant to its powers under s. 565A of the Charter. In that regard, it is noteworthy that William Boons, the City’s Manager of Development Services, testified that levelling out a sloping contour by raising it can create significant drainage and aesthetic problems, with possible implications for safety. Similarly, Peter Sweeney, the Manager of the Building Inspection Branch, indicated that the public is not always aware of drainage issues which may arise in altering the configuration of their land, with the result that a bulletin was created to alert them to this problem. In other words, alteration of the configuration of land by changing the elevation of the land is something which can significantly impact on neighbouring properties by creating drainage, safety and aesthetic issues.

[28] In adopting a narrow construction of the words “other operations … on land” in the context of this By-law, it is also noteworthy that Mr. Justice Burnyeat did not refer to the words in the Preamble to the By-law which state that one of the purposes of the By-law is “to regulate … alterations of existing yards, courts and other open spaces …” Rather, he focused on those aspects of the By-law relating to the right of the City to regulate building and buildings. In my view, this contributed to his failure to give the words “other operations ... on ... land” in s. 559 the broad meaning which a plain reading would suggest having regard to the use of the word “development” both in s. 559 and in the By-law. In fact, the entire phrase “construction, engineering, or other operations in, on, over or under land” indicates a legislative intent to give the word “development” an extended meaning to permit the City to regulate a wide range of works on land by permit. As earlier noted, the Supreme Court of Canada has made it clear that the courts should be slow to narrowly interpret municipal powers.

[29] In response to Mr. Reid’s argument that labelling the work he did on his land a “development” will permit the City to regulate “de minimus” operations on land and place all gardeners at risk, I observe that not every deposit or distribution of materials on land will amount to a development or trigger the need for a development permit. In this context, only those operations which significantly alter the configuration of land raise legitimate regulatory concerns.

CONCLUSION

[30] In the result, I conclude that Mr. Justice Burnyeat erred in finding that the alteration of Mr. Reid’s land in these circumstances did not constitute a “development” of his land within the second branch of the definition of “development” in s. 559 of the Charter as used in the By-law. On the contrary, I find that it did constitute a development, that the development was done without a permit, and that Mr. Reid used the property after the development had taken place. In other words, I am satisfied that all of the constituent elements of the charge under the By-law have been established, such that Mr. Reid’s acquittal must be overturned.

[31] I would, therefore, allow the appeal, set aside the acquittal, and enter a conviction. It is not disputed that in the event of a conviction, the appropriate penalty is that suggested by Mr. Justice Burnyeat, namely, a $50 fine, payable in instalments of $5 per year until the amount of the fine is paid in full. I would so order.

“The Honourable Madam Justice Prowse”

Majority Reasons for Judgment of the Honourable Madam Justice Newbury:

[32] I regret that I am unable to concur with the result reached by my colleague Madam Justice Prowse.

[33] As a preliminary matter, I note that the charge brought against Mr. Reid was that he “unlawfully did use said land, on which a development has taken place … to wit, alteration of the configuration of land …”. (My emphasis.) Since neither the Charter nor By-Law No. 3575 defines “development” to include a change in the configuration of land, the particulars given may refer to an offence unknown to the law. Mr. Reid did not argue that the charge was defective, perhaps because the City’s primary argument at trial was that by moving the soil, Mr. Reid had changed the “use” of the land – the first branch of the definition of “development” in s. 559 of the Charter – without a permit. That argument was abandoned on this appeal when the City adopted the alternate position that the movement of the soil constituted “other operations on, over, or under land” – the final branch of the definition. I am not persuaded that it was open to the City to change its position in this way; but in the absence of argument specifically on the form of charge, I would prefer to decide the case on more substantive grounds.

[34] Turning to the legal construction of the by-law and the Charter, I have little doubt that prior to the adoption of the new “flexible” or “liberal” rule of statutory construction applicable to municipal legislation, the words "erection, repair, alteration, enlargement, addition, demolition, removal, and excavation" which comprise the definition of "construction" in s. 304 would have been understood to refer to activities in connection with a building or other structure. The movement of soil from one place to another on a residential lot would not seem to come within the term “construction” on this approach. I do not read the decision of the Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 as doing away with the ejusdem generis, or limited class, rule. (See especially paras. 21-22 of the reasons of Major J. for the Court, holding that “other matter or thing” in the phrase “drain, ditch, watercourse, pond, surface water or other matter or thing” was properly construed ejusdem generis and could not be taken literally to mean “almost anything.”)

[35] Since as Madam Justice Prowse notes, the City did not argue in this case that the movement of soil amounted to "engineering", we are left with the phrase "other operations" in the definition of “development.” Unless the phrase is read ejusdem generis as Burnyeat J. suggested at para. 44 of his reasons, “operations” is broad enough to include almost any activity whatsoever carried out on an owner's property. The Compact Edition of the Oxford English Dictionary (1987) defines "operation" to mean an "action, performance, work, deed"; “working; exertion of force, energy or influence”; “action, activity, agency”; "a particular form or kind of activity; a mode of action; an active process, vital or natural”; “the performance of something of practical or a mechanical nature”; “the action of subjecting a number or quantity to any process whereby its value or form is affected”; or “the action of making or producing something”. Aspects of this definition have been applied in various contexts, and always widely: see City of Drumheller v. C.N.R. (1982) 45 N.R. 549, 143 D.L.R. (3d) 264 (F.C.A.D.), (rev’d [1998] 1 S.C.R. 1091), Kirkpatrick v. Budget Rent-A-Car of Victoria Ltd. [1999] 6 W.W.R. 442 (B.C.S.C.), and Greer v. C.P.R. (1915) 51 S.C.R. 338, all cited in Sanagan's Encyclopedia of Words and Phrases and Legal Maxims (Canada) (5th ed., 2005, looseleaf edition) under the word "operations" or "operation".

[36] Applying this definition, the word "operations" would include painting a door, repairing a fence, planting a plant, creating a bed or border in a garden, and any number of purposeful activities that citizens of Vancouver carry out every day without obtaining, or being expected to obtain, development permits – a possibility counsel for the City said was not intended. Yet when he was asked how a citizen who proposes to carry out ordinary gardening activities would know if a permit was required, Mr. Zworski's only answer was that a person “would just know” when he should get a permit.

[37] With respect, if the City's position is correct, whether a permit was required would depend simply on the whim of the City, rather than on the application of the by-law, since the by-law contains no limitation that would "filter out" activities such as those I have mentioned. By the same token, there is nothing to indicate that the construction of a retaining wall was not intended to be included in the definition of development. The City nevertheless takes the view that building a retaining wall is not a "development". With respect, the City’s position is incongruous. The only way this remarkable anomaly can be avoided is by construing construction, engineering and operations ejusdem generis as suggested by Burnyeat J., so that all three words refer to the construction of “buildings” (defined by s. 304 of the Charter) “plus the engineering of such construction.” (Para. 44.) Looked at in this context, it would not include the movement of soil to a location behind a retaining wall any more than it would include planting a seedling.

[38] I conclude that the movement of soil to behind a retaining wall is not a “development” for the purposes of the by-law, and I would dismiss the appeal.

“The Honourable Madam Justice Newbury”

I Agree:

“The Honourable Madam Justice Kirkpatrick”

Citation:	*R. v. Reid,*
	2006 BCCA 251