• West Kelowna (District) v Newcomb, 2015 BCCA 5
  • January 12, 2016 | Authors: Dionysios Rossi; Graham Walker
  • Law Firm: Borden Ladner Gervais LLP - Vancouver Office
  • The plaintiff/appellant, the District of West Kelowna (the "District"), had established a bylaw permitting "temporary boat moorage accessory to the use of the immediately abutting upland parcel" in the "Recreational Water Use Zone" (the "Bylaw"). The District also held a Licence of Occupation (the "Licence") from the Province of British Columbia over the Crown foreshore of a portion of Okanagan Lake fronting on Gellatly Bay.

    The defendant/respondent moored his houseboat in an area covered by the Bylaw until he was issued a notice to relocate pursuant to the Licence. He then moved his houseboat to other parts of Okanagan Lake but remained in the area covered by the Bylaw. The District, relying on the Bylaw and its Licence, commenced these proceedings to obtain declaratory relief against Mr. Newcomb and a permanent injunction restraining Mr. Newcomb and all other persons having notice of the order from mooring vessels in the areas covered by the Bylaw and Licence.

    The trial judge held that both the Licence and Bylaw were constitutionally valid, since the pith and substance of these measures was to regulate land use, which falls within provincial jurisdiction under subsections 92(13) (property and civil rights) and 92(16) (matters of a local nature) of the Constitution Act, 1867, 30 & 31 Victoria, c 3 (UK). However, the trial judge applied the doctrine of interjurisdictional immunity and concluded that the Licence and Bylaw must be read down so as not to prohibit temporary moorage of vessels that falls within the protected "core" of shipping and navigation. The trial judge found that Mr. Newcomb was in breach of the Licence and Bylaw.

    Both parties appealed the trial decision. The BCCA held that the trial judge was correct in holding that the purpose and the pith and substance of the Bylaw were to regulate land use and that the District was entitled to enact the Bylaw. The Court noted that in British Columbia (Attorney General) v Lafarge Canada Inc., 2007 SCC 23, the Supreme Court of Canada affirmed the double aspect of land use control in federal harbours. Therefore, a finding that temporary moorage, incidental to active navigational use, is at the protected core of navigation does not mean that the pith and substance may not remain within provincial jurisdiction. The Court held that the trial judge was correct to "address the ambit of moorage rights incidental to navigation as part of the interjurisdictional immunity analysis” and had correctly read down the Bylaw.