Canada: Agricultural Law Netletter - September 7, 2016

HIGHLIGHTS

* The Supreme Court of British Columbia has dismissed a petition for a declaration brought by two British Columbia tree farmers that using land they owned within British Columbia's Agricultural Land Reserve for a commercial wedding business was "agri-tourism", and therefore a permitted farm use under British Columbia's Agricultural Land Commission Act and the Regulations thereunder. In a thorough and comprehensive decision, the Court concludes that the provincial Agricultural Land Commission had the exclusive jurisdiction to decide whether or not the proposed use fell within the definition of agri-tourism under the Regulations and that the Court should not usurp the Commission's exclusive jurisdiction by granting declaratory relief. The Court also provides a detailed analysis of the definition of "agri-tourism" under the Regulations. (Walters v. Agricultural Land Commission, CALN/2016-021, [2016] B.C.J. No. 1861, Supreme Court of British Columbia)

NEW CASE LAW

Walters v. Agricultural Land Commission;

CALN/2016-021,

Full text: [2016] B.C.J. No. 1861;

2016 BCSC 1618,

Supreme Court of British Columbia,

Donegan, J.,

August 31, 2016.

British Columbia Agricultural Land Reserve -- Definition of Agri-tourism -- Exclusive Jurisdiction of Provincial Agricultural Land Commission -- Availability of Declaratory Relief.

Karen Walters and Jeryl Walters (the "Walters") petitioned the Supreme Court of British Columbia for a declaration that a wedding business they carried on their land was "agri-tourism", and therefore a permitted farm use under s. 2(2) of British Columbia's Agriculture Land Reserve Use, Subdivision and Procedural Regulation, BC Reg. 171/202 (the "Regulation").

The Walters own a 79 acre property at Notch Hill, British Columbia, in the Columbia Shuswap Regional District. The property is in the British Columbia Agricultural Land Reserve.

The Walters had, for many years, operated a tree farm on the land from which they harvested flora-culture products including pine cones, willow, moss and other wild floral products in the winter months for sale to wholesalers, flower shops and individuals.

They subsequently decided to start a wedding business on their property called "Rustic Weddings" which they advertised on social media.

The Walters deposed that they held 12 weddings in 2014 and that 8 weddings had been booked for 2015 and that they only offered wedding services between May and August.

The Walters also deposed that they used the weddings to promote and market their floral products.

On July 3, 2014, a Bylaw Officer for the Columbia Shuswap Regional District (the "Regional District") wrote a letter to the Walters indicating that the Regional District had received a complaint about the use of their property for weddings and that, in the Bylaw Officer's view, doing so would put them in non-compliance with the Regional District's Zoning Bylaw as well as the Regulation. The Bylaw Officer recommended the Walters submit a non-farm use application to the Land Commission.

On July 14, 2014, a Land Commission Enforcement Officer wrote the Walters advising them that the use of land within the Agricultural Land Reserve for commercial weddings is not considered a farm use or a permitted non-farm use under the Regulations and that the land had not been approved for non-farm use. The use was therefore in contravention of s. 20 of the Land Commission Act and an offence.

The Land Commission Enforcement Officer invited the Walters to make an application to bring their property into compliance as an approved non-farm use under the Regulations and requested that commercial weddings on the property cease until the property was brought into compliance.

The Regional District took the position that if the Land Commission permitted this non-farm use, the Walters could then apply for an application for a zoning amendment to permit compliance with the Regional District's Zoning Bylaw.

The Walters responded to the Commission that, in their view, the wedding business was agri-tourism and that a non-farm use application was not necessary.

The Commission's Officer questioned the Walters' description of their wedding business, pointed out inconsistencies between the information they provided to the Commission, and information posted by the Walters on social media (including the Walters' statements that they only used existing buildings for weddings, and that they only offered wedding services from May to August), and asked for further information.

The Walters refused to comply with the Land Commission's request for information and, on June 2, 2015, filed their petition for declaratory relief.

Section 20(1) of the Agricultural Land Commission Act, S.B.C. 2002, c. 36 (the "Act") prohibits the use of agricultural land for non-farm use unless permitted by the Act. Section 1 of the Act defines "non-farm use" as "use of land other than a farm use". "Farm use" is defined as follows:

"farm use" means an occupation or use of land for farm purposes, including farming of land, plants and animals and any other similar activity designated as farm use by regulation, and includes a farm operation as defined in the Farm Practices Protection (Right to Farm) Act;

Section 2(2)(e) of the Regulation designates "agri-tourism" as a farm use. Subsection (e) provided as follows when the petition was filed:

(e) agri-tourism activities, other than accommodation, on land that is classified as a farm under the Assessment Act, if the use is temporary and seasonal, and promotes or markets farm products grown, raised or processed on the farm;

The Regulation was subsequently amended to define agri-tourism as follows:

"agri-tourism" means

  1. an activity referred to in subsection (4)

    1. that is carried out on land that is classified as a farm under the Assessment Act,
    2. to which members of the public are ordinarily invited, with or without a fee, and
    3. in connection with which permanent facilities are not constructed or erected, and
  1. services that are ancillary to activities referred to in paragraph (a);

(4) Agri-tourism on a farm means the following:

  1. an agricultural heritage exhibit displayed on the farm;
  2. a tour of the farm, an education activity or demonstration in respect of all or part of the farming operations that take place on the farm, and activities ancillary to any of these;
  3. cart, sleigh and tractor rides on the land comprising the farm;
  4. subject to section 2(2)(h), activities that promote or market livestock from the farm, whether or not the activity also involves livestock from other farms, including shows, cattle driving and petting zoos;
  5. dog trials held at the farm;
  6. harvest festivals and other seasonal events held at the farm for the purpose of promoting or marketing farm products produced on the farm;
  7. corn mazes prepared using corn planted on the farm.

The Land Commission took the position that the Court should not consider the interpretion of the Regulation, and that the Court should dismiss the petition and refuse to grant declaratory relief on the grounds that the Walters were improperly asking the Court to assume or usurp the jurisdiction of the Land Commission and were attempting to circumvent the legislative process.

Decision: Donegan, J. dismissed the Walters' petition [at para. 142].

Donegan, J. observed that the following requirements had to be satisfied in order to meet the definition of agri-tourism in the Regulation [at para. 55 to 65]:

  1. The Similarity Requirement (Act, s. 1): The specific use of the land at issue must first be found to be similar to "farming of lands, plants and animals" [at para. 56 and 57].
  2. The Tourist Requirement (Regulation, s. 1 and 2(2)(e)): The definition of "agri-tourism" gives rise to three requirements: the tourist requirement, the accessory requirement and the property assessment classification requirement. The proposed use must be a "tourist activity, service or facility" [para. 58].
  3. The Accessory Requirement (Regulation, s. 1 and 2(2)(e)): A tourist activity, service or facility must be "accessory to the land" that is classified as a farm [para. 59].
  4. The Property Assessment Classification Requirement (Regulation, s. 1 and 2(2)(e)): The tourist activity, service or facility must be accessory to the land is "classified as a farm under the Assessment Act". Standards for farmland classification for assessment purposes are prescribed under the Assessment Act and the Farmland Classification Regulations [para. 60].
  5. Temporary and Seasonal Requirement (Regulation, s. 2(2)(e)): The Regulation requires that the agri-tourism activities must be both temporary and seasonal [para 61].
  6. The Promotional or Marketing Requirement (Regulation, s. 2(2)(e)): The Regulation requires that the agri-tourism activity must promote or market products grown, raised or processed on the farm [para. 62 and 63]
  7. The Farm Products Requirement (Regulation, s. 1 and 2(2)(e)): There must be "farm products" that are promoted or marketed - that is a commodity that is produced from a farm use [para. 64].
  8. The Geographic Requirement (Regulation, s. 1 and 2(2)(e)): The farm products that are promoted and marketed must be grown, raised or processed on the farm.

Donegan, J. further observed that property owners who wished to use their land for "non-farm use" have the option of applying to the Commission to permit a non-farm use [at para. 66 to 70].

Donegan, J. concluded that a petition for a declaration under Rule 2-1(2) of the British Columbia Supreme Court Civil Rules is inappropriate where serious questions of law or fact are raised; where a decision will not end the matter but requires further proceedings to be pursued; and where the application involves not the interpretation but the enforcement of a contract [at para. 87]. The Walters' petition involved serious questions of law and fact; facts which were in dispute and the construction of the legislation which would not resolve the matter [at para. 108 to 112]. The petition was therefore not properly brought [at para. 114].

Donegan, J. also concluded that even if the petition had been properly commenced she would have declined to exercise her discretion to grant a declaration because doing so would have usurped the jurisdiction of the Land Commission, and that even if the Commission did not have exclusive jurisdiction, the Walters had adequate remedies under the Act [at para. 115 to 132].

With respect to the Commission's exclusive jurisdiction, Donegan, J. stated, at para. 121 to 123 and 125, 127 to 129:

[121] In general terms, this court has held that the Commission has exclusive jurisdiction over questions involving non-farm use and issues pertaining to the exclusion of land from the ALR: [Tree to Me Agricultural Products Inc. v. British Columbia (Agricultural Land Commission), 2010 BCSC 1647 and Boundary Bay Conservation Committee v. British Columbia (Agricultural Land Commission), 2008 BCSC 946]. Specifically, whether a particular use meets the requirements of s. 2(2)(e) of the Regulation (with the exception of the property assessment classification requirement), is within the Commission's exclusive jurisdiction: [Heather Hills Farm Society v. British Columbia (Agricultural Land Commission), 2015 BCSC 1108 at paras. 49-50].

[122] The legislature has clearly assigned jurisdiction to questions such as the one posed in the case at bar to the Commission. I agree with Mr. Justice Smith's findings at para. 47 in Heather Hills. His remarks bear repeating:

[47] The regulation at issue was enacted pursuant to the Commission's constating statute and provides an extended definition of farm use by permitting and defining agri-tourism. The question of whether that extended definition applies to any particular use is one of fact that the Commission must consider in light of its agricultural expertise, its general policies and its overall mandate to preserve agricultural land and encourage farming.

[123] The expertise of the Commission in such matters has been well canvassed in the jurisprudence. In regard to the particular expertise of the Commissioners, the evidence establishes that they are particularly well suited to grapple with these issues as its members include farmers, individuals with knowledge of agri-tourism, members of various farm-related organizations, participants in the forestry industry, greenhouse industry, ranchers and others.

[125] What the petitioners have chosen to do, by seeking this declaratory relief, is to completely circumvent the legislative regime...

[127] The petitioners' approach here deprives the court of the benefit of a thorough record. Whether a judicial review were from the Commissioner's decision on appeal or directly from an order, the court would have the benefit of a record of either one or two sets of reasons from the Commission level. In this petition, all that is before the court is a very brief affidavit from Ms. Walters exhibiting a land title search print-out and two letters. As the respondent points out, the petitioners provided no photographs, no

explanation for the differences between their conclusory statements and their online postings and advertisements and no responses to the detailed, legitimate questions Ms. Henderson asked in her November 6, 2014 letter.

[128] the petitioners' approach in this case not only sidesteps the necessary evidentiary record, it also sidesteps the Commission's important power in s. 49 of the ALCA to enter onto land, make inspections and order the production of documents. This gathering of information is a critical tool for the decision-maker. It enables the Commission official to learn more about the actual or alleged farm operations or non-farm uses of a particular property, so that the Commission can properly exercise its statutory powers of decision.

[129] The process the petitioners have chosen also runs afoul of the Supreme Court of Canada's caution in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10. The Court warned against premature judicial intervention into ongoing administrative proceedings...

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