Citation: R. v. Sekhon et al Date: 19991015 1999 BCCA 617 Docket: CA024833/CA024834/CA024836 CA024837/CA024831/CA024832/CA024835 COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: THE HONOURABLE MR. JUSTICE DONALD October 15, 1999 THE HONOURABLE MADAM JUSTICE NEWBURY THE HONOURABLE MR. JUSTICE MACKENZIE Vancouver, B.C. BETWEEN: No. CA024833 R E G I N A RESPONDENT AND: GURJIT SINGH SEKHON APPELLANT BETWEEN: No. CA024834 R E G I N A RESPONDENT AND: SARBDEEP KAUR SEKHON APPELLANT BETWEEN: No. CA024836 R E G I N A RESPONDENT AND: JASBIR SINGH GILL APPELLANT BETWEEN: No. CA024837 R E G I N A RESPONDENT AND: SUKHWINDER KAUR GILL APPELLANT BETWEEN: No. CA024831 R E G I N A RESPONDENT AND: JUBRAJ BHINDER APPELLANT BETWEEN: No. CA024832 R E G I N A RESPONDENT AND: TARSEM KAUR BHINDER APPELLANT BETWEEN: No. CA024835 R E G I N A RESPONDENT AND: SURINDERJIT JHAJJ APPELLANT A. Sayn-Wittgenstein appearing for the Appellants R.G. Hildebrand appearing for the (Crown) Respondent [1] DONALD, J.A.: The principal question before us is whether a by-law against parking large trucks on residential property in Surrey is too vague to be enforceable. If it is enforceable, then we must determine whether the Court below erred in holding that the appellants Sekhon could not claim a non-conforming use. [2] The by-law in issue is Part XVIII, Section B and Part XV, Section A of Surrey Zoning By-law, 1979, No. 5942, as amended on May 23, 1989 which provided in relevant part as follows: B. Permitted Uses Land and structures shall be used for the following uses only, or for a combination of such uses: 3. A building or use customarily accessory to the above uses. (b) The storage or parking ancillary to a residential use including garages provided that: (i) No more than three (3) vehicles stored outside a garage or carport on the same property, and (ii) Not more than one (1) vehicle stored either within a building or parked on the property may be a truck not exceeding six hundred and eighty (680) kilograms capacity, and ... [Emphasis added] [3] I have underlined B. 3(b)(ii) because it forms the basis of the present dispute. It was substituted in 1989 for language found to be ambiguous by this Court: R. v. Badyal (1994), 24 M.P.L.R. (2d) 183 (B.C.C.A.). [4] The appellants, all truckers or spouses of truckers, were charged with a violation of the by-law and acquitted by a Provincial Court judge on the ground of vagueness. On appeal to the Supreme Court Madam Justice Daphne Smith reversed the finding of vagueness. In disposing of an alternative argument, she held that as the Sekhons parked on vacant land prior to the 1989 amendment they could not escape liability as non- conforming users because the prior version of the by-law only permitted parking "ancillary to a residential use". The other appellants began parking their trucks after the 1989 amendment and so the non-conforming use exemption was not available to them. [5] In her reasons the appeal judge cited the test for vagueness in by-laws articulated by Mr. Justice Oppal in Dhillon v. Richmond (Municipality) (1987), 37 M.P.L.R. 246 (B.C.S.C.) which was adopted by this court in Kamloops (City) v. Charchuk (1997), 41 B.C.L.R. (3d) 383 at 385. Mr. Justice Oppal put the test in this way at 250: The general approach to examining a municipal by-law whose validity is challenged on the grounds of uncertainty or vagueness is that the vagueness must be so pronounced that a reasonably intelligent person would be unable to determine the meaning of the by- law and govern his actions accordingly. A mere difficulty in interpretation will not be sufficient. [6] The appeal judge also referred to the purposive, contextual approach in interpreting by-laws used by Mr. Justice Lambert in Perry v. Vancouver (City) (1994), 19 M.P.L.R. (2d) 280 (B.C.C.A.) at 284: ... Every legislative enactment has a context. That context includes the mischief that it was designed to cure, and the purpose of the enacting body in effecting the cure. The context also includes a consideration of the means adopted to remedy the mischief and to effect a cure. And it is important to remember always, in interpreting legislation, that the purpose of the words is to carry the burden of the meaning, and that it is the applicable meaning that we are searching for, not the exhaustion of the lexicological possibilities inherent in the words. [7] The purpose and the context of this by-law were explored in Sundher v. Surrey (City) (1997), 39 M.P.L.R. (2d) 271 (B.C.C.A.) where a majority of this court upheld at 275 Mr. Justice Romilly's finding that the same by-law (as amended slightly in 1991), had as its ... legitimate purpose ... regulating the use of land within a residential zone by prohibiting the use of the land for parking large commercial vehicles which have given rise of [sic] complaints of noise and air pollution. ... [8] With this in mind the appeal judge said at paras. [28]- [30] of her reasons: [28] The intent of the 1979 By-law and its amendments in 1989 and 1991, has always been to regulate the storage and parking of overweight vehicles in single family residential zones in order to address their negative impact in the community. The interpretations of the 1989 By-law suggested by the Respondents do not accord with the stated purpose of the By-law or its provisions. [29] The plain meaning of the 1989 By-law limits the parking of trucks on property ancillary to a residential use to one truck only, provided that the truck does not weigh more than 5,000 kilograms gross vehicle weight. The by-law creates three restrictions on the parking or storing of a truck in these residential zones: it must be ancillary to a residential use; only one truck may be parked or stored on the property; and a truck parked or stored on the property may not exceed 5,000 kilograms gross vehicle weight. [30] In context of the purpose of the by-law, to maintain and preserve a quality of life within certain areas of a municipality, the by-law is not ambiguous and can be readily interpreted and enforced by assigning the plain or common meaning to the words used in the by-law. [Emphasis added] [9] The appellants argue that the appeal judge added words to the by-law to achieve a clear meaning. I cannot accept this argument. No sensible alternative meaning has been suggested that fits the purpose and context of the enactment. For instance, it was suggested by a judge in an earlier case, R. v. Nicholson (23 November 1990), New Westminster Registry No. X025713 (B.C.S.C.) that: A further plain and ordinary meaning of s. 3(b)(ii) is that it is intended to restrict the storage or parking of trucks having a weight in excess of 5,000 kilograms to one and no more. It states: "Not more than one (1) vehicle". The evidence against the Appellants related to the one truck. If the By-law intended an absolute prohibition of such vehicles, one would expect the By-law to provide "No vehicle parked or stored". [10] With respect, the syntax does not support this interpretation. The kind of vehicle described in the enactment, only one of which can be parked, is a truck not exceeding a certain weight. The interpretation suggested in Nicholson requires the reader to ignore the word "not". [11] Double negatives, such as appear in this by-law, sometimes create difficulty in interpretation. I had to read this by-law several times to get its meaning, but having done so, I understand what it says without having to add anything to the text. I respectfully agree with the meaning given to the by- law by the appeal judge. [12] As I have noted, mere difficulty in interpretation does not establish vagueness. [13] Surrey amended the by-law in 1991 in an apparent attempt to meet the criticism in Nicholson. The amendment deleted B. (3)(b)(ii) and added to Part IV the following: 4. Truck Parking or Storage Vehicles exceeding 5,000 kilograms (11,023 lbs.) licensed GVW are not permitted to be parked or stored either inside or outside a building or structure on any parcel in a residential zone. [14] This was held to be valid in Sundher, supra. The 1991 amendment is an improvement in clarity, but I do not think that the fact that Surrey made the amendment and cleaned up the language proves that the 1989 text was vague. [15] The appellants contend that an absurdity results from the appeal judge's interpretation in that it would limit trucks of all description but would not affect vans. It is suggested in the appellants' argument that by adopting the interpretation suggested in Nicholson, supra, which is to the effect that the questioned provision deals only with oversized vehicles and restricts the number to one, such an interpretation would avoid drawing a distinction between pickup trucks and vans or mini- vans. In my respectful view, this is not an absurdity. It must be remembered that the by-law restricts the number of all vehicles outside a building to three, and so that even if the problem suggested by counsel should arise, the only difference would be one pickup truck versus three vans. This is not an absurd outcome. [16] The focus of the appellants' argument then shifted to the use of G.V.W., the abbreviation for gross vehicular weight. It is said that the expression leaves open the interpretation that only vehicles loaded beyond the specific weight may be in violation, or in the alternative, that there is a confusion between G.V.W. as capacity and G.V.W. as designation for licensing purposes. In the latter connection, counsel referred us to the definition section in the Commercial Transport Act, R.S.B.C. 1996, c.58 s.1, where there are definitions for gross vehicular weight and licensed gross vehicular weight. There is no merit in these contentions. G.V.W. is a designation for commercial vehicles familiar to truckers and commonly understood to refer to the licensed capacity of the truck. As the expression appears in the by-law it would not reasonably be taken to refer to the truck's condition, that is, whether it was loaded or unloaded nor would it confuse licensed status with capacity. The provincial licensing scheme uses G.V.W. as the primary designation for licensing purposes. [17] Finally, and in the alternative, the appellants Sekhon argue that since they have been parking their vehicle on the same property prior to the 1989 amendment they are entitled to be treated as non-conforming users. Section 911(1) of the Municipal Act, R.S.B.C. 1996, c. 323 provides: 911. (1) If, at the time of the enactment of a rural land use bylaw or adoption of a bylaw under this Division, (a) land, a building or a structure is lawfully used, and (b) the use does not conform to the bylaw, the use may be continued as a non-conforming use, but if the non-conforming use is discontinued for a continuous period of 6 months, any subsequent use of the land, building or structure becomes subject to the bylaw. [18] The Sekhons began parking the truck in April of 1989. They did not own the land then and the land was unimproved at the time; that is, there was no dwelling or other structure on the land. There is no evidence that the Sekhons lived in an adjoining residence. They bought the property on 31 October 1989 and later built a home on it. It will be remembered that the 1989 amendment came about on 23 May of that year. This was after they began parking on the property but before it could be said that the parking was "ancillary to a residential use", referring to s. B. 3(b) of the 1979 version of the by-law. [19] The Sekhons argue on this appeal that since the oversized truck portion of the 1979 bylaw was subsequently declared unenforceable in R. v. Badyal, or at least was found to be inapplicable to oversize trucks, the parking of the truck was lawful prior to the 1989 amendment and should therefore qualify as a non-conforming use. [20] The Sekhons further contend that the appeal judge erred in confining the non-conforming use to owners. They refer to para. [38] of her reasons: ... They also cannot be said to have been using their property as a non-conforming use at the time the 1989 By-law was adopted on May 23, 1989 as they did not own the property at the time they first started using the property to park their truck. [21] I will deal with the second argument first. With respect, the appeal judge erred when she denied the Sekhons an exemption for non-conforming use on the ground that they were not owners at the time of the amendment. The error is conceded by the City. Section 911(7) of the Act makes it plain that change of ownership does not affect use: 911. (7) For the purposes of this section, a change of owners, tenants or occupants of any land, or of a building or structure, does not, by reason only of the change, affect the use of the land or building or structure. [22] It is enough that the Sekhons were in continuous occupation for them to claim the exemption. However, the judgment below can be upheld on the other basis for the appeal judge's decision, namely, that the parking of the truck was not "ancillary to residential use". [23] The decision in Baydal went no further than to declare that the oversized truck provision in s. B. 3(b)(ii) was inapplicable; no other part of the parking by-law was affected. In fact, Mr. Justice Lambert, having found the oversized truck provision ambiguous, went on to determine whether Mr. Baydal's parking was otherwise in conformity with the balance of the by- law. In particular he examined whether it was ancillary to residential use and in that regard he agreed with the appeal judge, Mr. Justice Paris, that it was. Mr. Baydal parked his tractor at home. [24] This is where the Sekhons meet an insurmountable obstacle. The land was vacant during the pre-amendment occupation and the Sekhons offered no evidence that the parking was associated with a residence on an adjoining property which they occupied (ancillary use of vacant land extended to a neighbouring home was discussed in Bosa Development Corp. v. Assessor of Area 12 " Coquitlam (1996) 30 B.C.L.R. (3d) 263; 37 M.P.L.R. (2d) 285 (B.C.C.A.)). [25] The point is that no vehicle, oversized or otherwise, was permitted to be parked unless the parking was ancillary to residential use. The Sekhons are unable to show that theirs was a permitted use under the unaffected provisions of the by- law and accordingly their claim for an exemption must fail. [26] For these reasons, I would dismiss the appeals. [27] NEWBURY, J.A. I agree. [28] MACKENZIE, J.A. I agree. [29] DONALD, J.A. The appeals are dismissed. "The Honourable Mr. Justice Donald"