One missing word was all it took for The Honourable Mr. Justice Johnston in the Supreme Court of British Columbia to nullify a setback provision for accessory buildings under the City of Langford’s Zoning Bylaw. On appeal, a unanimous Court of Appeal reversed that decision.
The homeowner, Marlene Alina Lima Dos Reis (“Dos Reis”), built an accessory building 1.54 metres away from a fence which runs along the lot line of her property (see photo). The City’s Zoning Bylaw required a 6-metre setback for an exterior side lot line, but only a 1 metre setback for an interior side lot line. Unfortunately, the zoning provision in question referred to “exterior lot line” and not the defined “exterior side lot line”. Given the missing word “side”, Mr. Justice Johnston gave Dos Reis the benefit of the doubt and permitted the less restrictive 1 metre setback.
On February 18, 2015, the B.C. Court of Appeal reinforced the established approach to the interpretation of municipal bylaws. The Honourable Mr. Justice Harris writing a concise and unanimous judgment upheld the 6-metre setback and ordered the accessory building to be removed.
The Court of Appeal held that the Trial Judge erred in applying a strict construction test from Montreal (City) v. Morgan (1920) that penalized the City for essentially omitting one word. The Court held:
 As the municipality accepts, the omission of the word “side” in the bylaw shows that the bylaw is inelegantly drafted. That may be so, but in my view, the judge’s interpretation defeats the purpose of the bylaw scheme to function as a comprehensive scheme of regulation. It creates a type of lot line that does not fall within what is intended to be an exhaustive list of definitions and therefore falls outside the regulatory scheme. By doing so, it produces an absurd result. …
“We have a better chance of finding the Ogopogo
than finding a municipality with error-free bylaws.”
Troy DeSouza, counsel for the City of Langford
This case demonstrates how courts grapple with drafting errors. The challenge for local government lawyers fixing mistakes after the fact, is easier said than done.
There are four takeaways from the Dos Reis decision:
- Imperfect or inelegantly drafted bylaw provisions can still be enforced if the scheme and intent of the bylaw is clear;
- Local governments must demonstrate that the bylaw’s comprehensive regulatory scheme supports the provision in question;
- Bylaws should be reviewed on a regular basis to ensure enforceability; and
- It is more cost-effective to have legal counsel review your bylaw than to have the Courts do so.
Special acknowledgement for the success of this case goes to Lorne Fletcher, Paul Lambert and Matthew Baldwin of the City of Langford, and lawyer Elena Merritt and legal assistant Sarah Innes at GovLaw.
To view the entire Dos Reis Reasons for Judgement click here.