Canada: Municipal Law; Interpretation Of Bylaws

Last Updated: June 8 2015
Article by James Carpick

On February 19, 2015, The Supreme Court of Canada rejected an application for leave to appeal an August 14, 2014 BC Court of Appeal judgment that compelled the Cowichan Valley Regional District to permit a property owner to operate a crematorium on its property.

The BCCA judgment, Paldi Khalsa Diwan Society v. Cowichan Valley (Regional District), 2014 BCCA 335, can be accessed here: http://www.courts.gov.bc.ca/jdb-txt/CA/14/03/2014BCCA0335.htm.

The main legal significance of this judgment is in its restatement of the way in which municipal bylaws are to be interpreted, and in its application of those principles to the facts at issue in the case.

The property owner, a religious society, operated a crematorium on its property before any bylaws regulating the use of that property were enacted. The crematorium had been operated on the property since the 1960s.

In 1998, the regional district enacted a bylaw that designated the property as being in a zone called "P-1 Zone - Parks and Institutional".

In 2010, the society leased the property to a tenant, a company that intended to operate a crematorium on the property. The tenant applied to the regional district for and was granted a building permit to construct a new, gas-fired crematorium (the prior crematorium had used wood as fuel).

In 2011, the tenant applied to the province for a license to operate the newly built crematorium. To get that permit, the tenant needed confirmation from the regional district that the use was permitted under its bylaws.

Instead of getting that confirmation directly from the regional district, the tenant instead submitted to the province a copy of the building permit. This was accepted as sufficient proof that the use was permitted, and the province issued its permit to the tenant.

The crematorium began operating. The regional district then got wind of this activity and demanded that the tenant cease operating the crematorium. The tenant refused to comply.

The regional district then informed the province that the use was not permitted, and the province took the position it would revoke the tenant's operating permit.

The society (and associated societies) and the tenant sued the regional district (by petition), seeking an order confirming that the crematorium use was lawful. The province agreed not to take any steps to revoke the tenant's permit pending the outcome of the litigation.

The primary legal issue was whether the crematorium use was permitted by the regional district's bylaw.

The Supreme Court judge in chambers ruled in favour of the regional district and dismissed the petition. The Court of Appeal reversed that judgment and ruled in favour of the societies and the tenant.

The issue to be decided was whether the crematorium was an "institution". The bylaw permitted use of property in the P-1 zone as an "institution"; no other permitted uses in that zone were relevant.

The bylaw defined "institution" thus:

"institution" includes an arena, armory, cemetery, college, community centre, community hall, court of law, fire hall, hospital, library, municipal office, park, playground, police station, public art gallery, public museum, school, stadium or public swimming pool;

The court's task was to decide whether a crematorium was the kind of use included in this definition even though it was not explicitly stated to be included.

The court described the approach it must take to that task in para. 33:

[33] This Court has recently discussed the principles of statutory interpretation applicable to municipal legislation in Society of Fort Langley Residents for Sustainable Development v. Langley (Township), 2014 BCCA 271 at paras. 11-18. The Chief Justice, in his reasons for the Court, summarized the principles (at para. 18):

Frankly, the Court can take the hint – municipal legislation should be approached in the spirit of searching for the purpose broadly targeted by the enabling legislation and the elected council, and in the words of the Court in Neilson [Neilson v. Langley (Township) (1982), 134 D.L.R. (3d) 550 at 554 (B.C.C.A.)], "with a view to giving effect to the intention of the Municipal Council as expressed in the bylaw upon a reasonable basis that will accomplish that purpose".

The court applied this approach to the specific circumstances at paras. 39-45:

[39] The principles of statutory interpretation of municipal legislation direct the Court to search for the purpose broadly targeted by the enabling legislation. In this case, the bylaw does not expressly state the purpose for the P-1 zone.

[40] An examination of the bylaw as a whole suggests to me that the purpose for the P-1 zone is to permit uses that provide, in the broadest sense, "public services". This is indicated by the list of uses expressly permitted in the P -1 zone and the specific uses listed in the definition of "institution" in the bylaw, and by the use of the word "includes" in the definition of "institution".

[41] The permitted and specific uses all fall within the dictionary definitions of the word "institution" provided by the parties:

  • an organization founded for a religious, educational, professional, or social purpose:

    Oxford University Press, online: Oxford Dictionaries, http://www.oxforddictionaries.com/definition/english/institution
  • A society or organization, esp. one founded for charitable or social purposes and freq. providing residential care; the building used by such a society or organization.

    The New Shorter Oxford English Dictionary (1993)
  • An established organization, esp. one of a public character, such as a facility for the treatment of mentally disabled persons.

    Black's Law Dictionary (7th ed.)

[42] A crematorium also falls within these dictionary definitions of an "institution". It is a facility that serves a social purpose, providing the public with a means of dealing with human remains.

[43] The use of the word "includes" in the definition of "institution" in the bylaw expressly broadens the list of specific uses to other institutional uses that are not expressly listed but serve similar purposes. A crematorium serves a purpose similar to a cemetery for dealing with human remains. It does not serve a similar purpose to a school or hospital, but it is no more distinctive from those institutions than are a cemetery and an armoury.

[44] Thus, the purpose broadly served by the P-1 zone is to provide for uses that serve public needs, including specific uses not listed in the definition in the bylaw.

[45] I conclude, applying the principles of statutory interpretation, that including a crematorium in the P-1 Zone gives "effect to the intention of the municipal council as expressed in the bylaw upon a reasonable basis that will accomplish that purpose", and that a crematorium is therefore a permitted use in the P-1 zone.

The fundamental reasoning was:

  • We must determine whether a crematorium is the kind of use intended to be encompassed by the term "institution" as defined in the bylaw, having regard to the bylaw's purpose.
  • The bylaw defines "institution" as including some specific things but not excluding others. Therefore, it can include a crematorium even though that is not specifically listed as a permitted use.
  • The bylaw definition of institution encompasses facilities that serve a social, i.e., public purpose.
  • A crematorium serves a social purpose – dealing with human remains.
  • Therefore, a crematorium is a use within the definition of "institution" in the bylaw.

The second point immediately above is important because zoning bylaws often use definitions that exclude any use other than what's listed; e.g., "institution" means these and no other uses:...."

The definition of "institution" includes "cemetery", and, since crematoria are commonly part of cemetery uses, it's not much of a stretch to say a crematorium use is within the intended scope of use permitted by that definition. The Court of Appeal made essentially that point in para. 43, but it perhaps deserves more highlighting than it was given.

The case will be useful in any circumstance where there is a dispute between a property owner and a municipality as to whether the zoning bylaw permits a use that is not specifically permitted, but is not expressly excluded.

It will also be of wider application in any case where the interpretation of bylaws are at issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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