1120732 B.C. Ltd. v. Whistler (Resort Municipality)

2020 BCCA 101 1120732 B.C. Ltd. v. Whistler (Resort Municipality)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101 Date: 20200407 Docket: CA46161 Between: 1120732 B.C. Ltd., 1114829 B.C. Ltd., Marlene Coleman operating as Elevate Real Estate Management, Elevate Vacations Inc., 1037761 B.C. Ltd. operating as Elevate Vacations and Brent Lokash Appellants (Petitioners) And Resort Municipality of Whistler and ResortQuest Whistler Property Management, Inc. Respondents (Respondents) Before: The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock On appeal from: An order of the Supreme Court of British Columbia dated May 30, 2019 (1114829 B.C. Ltd. v. Whistler (Municipality), 2019 BCSC 752, and 2019 BCSC 984, Vancouver Docket S1812133). Counsel for the Appellants: L.J. Alexander W.J. McMillan Counsel for the Respondent, Resort Municipality of Whistler: W.A. Buholzer A.D. Bradley Counsel for the Respondent, ResortQuest Whistler Property Management, Inc. R.W. Millen L. Cundari Place and Date of Hearing: Vancouver, British Columbia February 6-7, 2020 Place and Date of Judgment: Vancouver, British Columbia April 7, 2020 Written Reasons by: The Honourable Mr. Justice Tysoe Concurred in by: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock Summary: The appellants brought petition proceedings challenging a restrictive

covenant and two municipal bylaws, a zoning amendment bylaw and a tourist accommodation bylaw. The covenant and bylaws collectively require that strata units in the Cascade Lodge be placed in a rental pool operated by a single licensed rental pool manager. The petition was dismissed by a chambers judge. On appeal, the appellants argue the chambers judge erred because: (1) the zoning amendment bylaw is invalid because it requires that the properties be used only by means of a rental pool arrangement with a single professional rental pool manager; and (2) the covenant is either void for vagueness and uncertainty, or exceeds the municipality's statutory authority to register covenants in respect of land use. In the alternative, the appellants argue the judge erred by dismissing their claim for a declaration of non‑conforming protection. Held: Appeal dismissed. The applicable standard of review for judicial review of a municipal bylaw is reasonableness. The municipality's implicit conclusion that it had the statutory authority to enact the zoning amendment bylaw was reasonable. Similarly, the covenant did not exceed the municipality's statutory authority, and it is not vague or uncertain by requiring the use of a rental pool arrangement. Finally, the appellants have failed to establish prior non‑conforming use. Table of Contents Para. Introduction [1] Background [6] Reasons of the

Chambers Judge [22] Issues on Appeal [31] Discussion [33] (a) Zoning Amendment Bylaw [33] (i) Standard of Review [33] (ii) Application of Standard of Review [47] (b) Non‑Conforming Use [89] (c) The Covenant [100] (i) Statutory Power [101] (ii) Vagueness or Uncertainty [104] (d) The Licencing Bylaw [112] Conclusion [113] Reasons for Judgment of the Honourable Mr. Justice Tysoe: Introduction [1] The respondent, Resort Municipality of Whistler (the "Municipality"), was incorporated as a resort municipality in 1975. In its early planning, the Municipality developed what became known as a "warm beds" policy, which sought to maximize the number of public beds available to tourists in order to alleviate traffic congestion and to optimize the capacity of ski operations. [2] Strata ownership of hotel units in Whistler, British Columbia, was an important financing strategy, and it also facilitated the implementation of the warm beds policy by way of covenants requiring the strata units to be placed in rental pools when they were not being used by their owners. The Municipality arranged to have two different rental pool covenants registered against various development properties, including what is referred to as a phase 2 rental pool covenant against lodge and hotel zoned lands located in the subdivision known as Whistler Village North. [3] A phase 2 rental pool covenant was registered

against lands which were developed into a strata hotel called the Cascade Lodge. The appellants, 1120732 B.C. Ltd. and 1114829 B.C. Ltd. (the "Appellant Owners"), have become the owners of a number of units in the Cascade Lodge. The individual appellants own the shares in the Appellant Owners and own or control the other corporate appellants. The respondent, ResortQuest Whistler Property Management, Inc. ("ResortQuest"), is the current rental pool manager for the Cascade Lodge. [4] In 2017, the Municipality enacted a bylaw to amend its zoning bylaw, as well as a new bylaw to regulate tourist accommodation businesses. One of the stated purposes of these bylaws was to reinforce the rental pool covenants. [5] In 2018, after litigation had been ongoing between the Appellant Owners and ResortQuest for some time, the appellants commenced the underlying proceeding to challenge the rental pool covenant registered against the Cascade Lodge and the 2017 bylaws mentioned above. In reasons for judgment indexed as 2019 BCSC 752 (the "Reasons") and supplementary reasons for judgment indexed as 2019 BCSC 984 (the "Supplementary Reasons"), the chambers judge dismissed the appellants' petition, and they now appeal to this Court. Background [6] A high percentage of the land in Whistler was initially owned by the Province of British Columbia, which incorporated a company called W.L.C.

Developments Ltd. ("W.L.C.") to deal with its land in the development of the Whistler community. In the late 1980s, W.L.C. worked with the Municipality to plan the development of the lands that became known as Whistler Village North. In 1989, those lands were granted by the Province to W.L.C. [7] In furtherance of the Municipality's warm beds policy, W.L.C. agreed to grant a phase 2 rental pool covenant against these lands in favour of the Municipality pursuant to s. 215 of the Land Title Act, R.S.B.C. 1979, c. 219 [Land Title Act, 1979] (now s. 219 of the Land Title Act, R.S.B.C. 1996, c. 250). Upon the subdivision of the lands into 33 lots in 1991, a phase 2 rental pool covenant was registered in the land title office against the lot upon which the Cascade Lodge was built (the "Covenant"). [8] The chambers judge attached a copy of the relevant provisions of the Covenant as an appendix to the Reasons. A summary of its terms is as follows: (a) all units of residential accommodation constructed on the property were to be placed in a rental pool approved by the Municipality (such approval not to be unreasonably withheld); (b) the term "rental pool" was defined to mean "a rental pool or rental management facility or arrangement"; (c) the owner of a unit was allowed to reserve and use their unit for up to 56 days a year; and (d) subject to the use permitted to be made by the owners

of the units, all units were to be made available for rental on terms approved by the Municipality (such approval not to be unreasonably withheld or delayed), and the rental pool was empowered to accept reservations from the public. A phase 2 rental pool covenant was more restrictive than a phase 1 rental pool covenant because it prescribed a maximum number of days a year that a unit could be used by its owner. A phase 1 covenant had no restriction on the number of days owners could use their units, but it did provide that the units were to be made available in a rental pool for renting by the public when the owners were not using them. [9] The lot for the Cascade Lodge was transferred by W.L.C. to a developer, which subdivided the property by way of a strata plan and constructed the Cascade Lodge. The developer filed a disclosure statement with the Office of the Superintendent of Real Estate in 1997 and presumably provided it to prospective purchasers of units in the Cascade Lodge. The disclosure statement was amended from time to time by the developer. [10] The disclosure statement summarized the terms of the Covenant, a copy of which was also attached to the disclosure statement. The statement disclosed that the developer had entered into an arrangement with a predecessor of ResortQuest to manage the rental pool at the Cascade Lodge. [11] ResortQuest has managed the Cascade

Lodge's rental pool since 1998, and it also manages 25 other properties in Whistler. ResortQuest operates the Cascade Lodge as a unified hotel, with guest services such as a front‑desk reception, wake‑up service, concierge and housekeeping. It does not have an overarching management contract for all of the units; instead it has entered into rental management agreements with individual owners of the units in the Cascade Lodge. There have been different variations of the form of rental management agreement used by ResortQuest over the years but the substantive elements have remained the same. [12] In June 2016, the Municipality's General Manager of Resort Experience recommended to the Municipality's council that there be a review of policies relating to tourist accommodation. The report to council stated that it was prudent for the Municipality to undertake the review as a result of changes in market trends since the inception of the warm beds policy and issues related to management of tourist accommodation. [13] On May 23, 2017, an administrative report was made by the Municipality's staff to its council following the review of the tourist accommodation policies. Attached to the report was a document entitled "Tourist Accommodation Review", which discussed the effect of booking units over the Internet on tourist accommodation, and noted that the Whistler bookings over the Airbnb

platform had risen from 60 guests in 2011 to 35,500 guests in 2015. In the report, the staff recommended the adoption of a new council policy regarding tourist accommodation, a zoning amendment bylaw and a regulation bylaw. The purpose of the zoning amendment bylaw was described in the report as follows: The proposed Zoning Amendment Bylaw (Hotel and Phase 2 Rental Pool Accommodations) No. 2140, 2017 is a key priority of the Council Policy for the properties within the Hotel and Phase 2 Rental Pool Accommodations category. The bylaw supports the rental pool requirements and ensuring availability of units under a single professional rental pool manager providing integrated booking, reception, cleaning, laundry, and other services. A significant concern is individual unit owners seeking to operate outside of the common rental pool and management arrangement for a strata property. The municipality takes the position that for these properties, which are zoned for and have been developed and operate as hotels, inns and lodges, it is the intention of the covenants and existing zoning that every accommodation unit on the property be placed or listed in a single, integrated rental pool through which the units will be made available for rental to the public. This provides for the orderly and assured management of reservations and use of units by the public and unit owners. [14] On July

4, 2017, a further administrative report was made to the Municipality's council prior to third reading being given to the zoning amendment bylaw. The report discussed the need for a single management arrangement: Staff believes that there is a serious risk that without the single management arrangement the orderly and assured management of reservations and visitor use for these properties is not being achieved. Restrictions and obligations on use would be extremely difficult to monitor and enforce, if potentially up to 4,000 different unit owners were pursuing individual arrangements versus 28 properties each having their own single arrangement determined collectively by strata unit owners. The coordinated management of units within this component of the tourist accommodation base is also important from a visitor service and experience perspective, and to meet the needs of certain market segments A large portion of Whistler's visitors continue to have a preference for this type of accommodation, with the associated amenities and services. This category is also key to supporting conference business, major events, and large group travel which relies on the ability to efficiently coordinate and book large volumes of accommodation units under one roof. The assured bed base provided by these 'hotel' type properties, under single management arrangements, is considered to be a

competitive advantage for Whistler relative to competing resorts. [15] The bylaws were adopted by the Municipality's council on July 18, 2017. Copies of portions of the bylaws were attached as appendices to the Reasons, and I will summarize the provisions of the bylaws that are relevant to this appeal. [16] Zoning Amendment Bylaw (Hotel and Phase 2 Rental Pool Accommodations) No. 2140, 2017 (the "Zoning Amendment Bylaw") amended the Municipality's Zoning and Parking Bylaw No. 303, 2015 by adding seven new subsections, the first six of which provided as follows: (a) the properties listed in the bylaw (which included the Cascade Lodge) must be used or made available for temporary lodging by visitors to Whistler by means of a rental pool arrangement, except as used by owners of units in accordance with any applicable covenant granted to the Municipality under s. 219 of the Land Title Act or predecessor legislation or in accordance with the rental pool; (b) the rental pool must be operated by a single professional rental pool manager providing integrated booking, reception, cleaning, laundry and other normal hotel services; (c) the lobby must have a 24‑hour front desk for occupants to check‑in and check‑out; (d) there must be a uniform key entry system, housekeeping and building maintenance services, and a central telephone system; and (e) the rental pool manager must have a

business licence issued by the Municipality. The seventh of the new subsections clarified that the required rental pool arrangements would be satisfied through arrangements by which the property's strata corporation, directly or through an intermediate entity, makes all of its strata lots available from a common rental pool for temporary lodging by visitors as long as it provided the above‑described services. [17] Tourist Accommodation Regulation Bylaw No. 2142, 2017 (the "Licencing Bylaw") provided as follows: (a) no person may carry on a tourist accommodation business without a current licence, and every hotel must be licensed as a hotel business; (b) only one licence may be issued to each hotel; (c) each hotel must have the services mentioned in the Zoning Amendment Bylaw; and (d) an applicant for a licence for a hotel that is a strata property must produce a resolution passed by a 3/4 vote authorizing the applicant to operate the hotel business. [18] In the spring of 2017, the Appellant Owners began acquiring units in the Cascade Lodge. They became the registered owners of two units prior to the adoption of the Zoning Amendment Bylaw and the Licencing Bylaw, and they subsequently became the registered owners of 16 additional units by the time of the commencement of the underlying proceeding. [19] By email dated June 15, 2017, one of the principals of the Appellant Owners

requested ResortQuest to provide him with an access card for the two units then owned by them so that the locks on the units could be changed. ResortQuest declined to do so on the basis that the Covenant required a single rental pool for each property. By letter dated June 28, 2017, one of the principals of the Appellant Owners wrote to the Municipality requesting that the appellant, Elevate Vacations Inc., be approved as a rental pool manager, but the request was denied. [20] On July 11, 2017, the strata council of the Cascade Lodge gave approval for the locks on the two units to be changed. On July 17, 2017, the day before the adoption of the new bylaws, the locks were changed, and the principals of the Appellant Owners placed advertisements for the two units on various vacation rental websites. The first rental of one of these two units commenced on July 22, 2017. [21] Before the Appellant Owners obtained access to their units, one of the Appellant Owners commenced an action against ResortQuest seeking such access and damages. ResortQuest filed a counterclaim for, among other things, a declaration that the Appellant Owners were bound by the rental management agreements. After the pleadings had closed and examinations for discovery had been conducted, the Appellant Owners decided that the best way to defend themselves in that action was to commence the underlying proceeding.

They sought declarations that the Covenant, the Zoning Amendment Bylaw and the Licencing Bylaw were void or ultra vires or, alternatively, a declaration that use of their units for temporary lodging by visitors outside a rental pool arrangement was a lawful non‑conforming use. Reasons of the Chambers Judge [22] In the Reasons, the chambers judge dealt with the validity of the Covenant, the Zoning Amendment Bylaw and the Licencing Bylaw. The claim in relation to the Covenant was made pursuant to s. 35(2)(e) of the Property Law Act, R.S.B.C. 1996, c. 377, which authorizes the court to cancel a covenant burdening land on the basis that it is invalid, unenforceable or has expired. Relying primarily on the decision of 585582 B.C. Ltd. v. Anderson, 2015 BCCA 261 [Anderson], the appellants argued that the Covenant was void for uncertainty. In the alternative, they argued that s. 215 of the Land Title Act, 1979 did not authorize the Municipality to regulate users of land (as opposed to regulating uses of land). [23] The judge held that Anderson turned on its specific facts (para. 121) and that a review of the documents registered in the land title office would have revealed to a prospective purchaser the essential facts of which they should be aware prior to purchasing a unit (para. 123). As a prospective purchaser would understand from reviewing the Covenant that they would have to

abide by a requirement to rent the unit through a rental pool manager, the judge did not find the Covenant to be invalid due to vagueness or uncertainty (para. 132). [24] In dealing with the alternative argument, the judge reviewed a number of case authorities. She expressed the views that there is no clear demarcation between bylaws regulating use and bylaws regulating users and that the real issue is whether the regulation of the user is unreasonable (para. 147). She held that the regulation by way of the Covenant was not unreasonable, and the Covenant was not unenforceable (paras. 149-150). [25] The challenge of the Zoning Amendment Bylaw and the Licencing Bylaw by the appellants was brought by way of judicial review pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c.

241. The judge held that the standard of review required a two‑step approach: first, the determination of whether the Municipality had the legal authority to adopt the Zoning Amendment Bylaw and the Licencing Bylaw was to be done on a standard of correctness; and second, the decision of the Municipality to enact each of the Zoning Amendment Bylaw and the Licencing Bylaw was to be reviewed on a standard of reasonableness (paras. 186, 188). [26] After reviewing the applicable legislative provisions, the judge concluded that the Municipality had the statutory authority to adopt each of the Zoning Amendment Bylaw and the Licencing Bylaw (para. 214) and that the decision to adopt the Zoning Amendment Bylaw was reasonable (para. 250). She considered the argument of the appellants that the Zoning Amendment Bylaw improperly regulated users of land. She briefly discussed some of the same authorities she considered with respect to the similar issue in connection with the Covenant, and concluded that the Bylaw's regulation of users was reasonable because it did not discriminate unreasonably by making distinctions that were not based on legitimate municipal objectives (para. 243). [27] The judge also dealt with other arguments challenging the validity of the Zoning Amendment Bylaw and the Licencing Bylaw, but I need not summarize her reasoning in rejecting these arguments because they are

not raised on appeal. [28] As the judge did not give effect to any of the appellants' arguments, she dismissed their petition (para. 333). [29] The judge had understood that she needed to deal with the alternative request for a declaration of non‑conforming use only if she upheld the Zoning Amendment Bylaw and the Licencing Bylaw, but had found the Covenant to be void (which she did not find). After the Reasons were issued, one of the Appellant Owners requested the judge to address the alternative request, and she issued the Supplementary Reasons dealing with the issue of non‑conforming use. [30] In the Supplementary Reasons, the judge first held that as the Appellant Owners had not applied for a business licence (which would have raised the issue of non‑conforming use), they had not satisfied the prerequisite of exhausting their internal remedies before seeking judicial review (para. 11). However, the judge went on to consider the issue on its merits and found that the advertisement of the two units for rental one day prior to the enactment of the Zoning Amendment Bylaw did not constitute use of the units for the purpose of establishing a non‑conforming use (para. 17). In the alternative, the judge held that, if there had been use of the two units prior to the enactment of the Zoning Amendment Bylaw, it was not a lawful use because it contravened the Covenant (para. 18). The

judge therefore dismissed the Appellant Owners' alternative argument (para. 25). Issues on Appeal [31] On appeal, the appellants do not repeat all of the arguments made to the chambers judge. Their principal grounds of appeal are as follows: (a) the enactment of the Zoning Amendment Bylaw exceeded the Municipality's statutory authority to regulate use of land and buildings because it required that properties could be used only by means of a rental pool arrangement with a single professional rental pool manager; (b) the Covenant is unenforceable because it is vague and uncertain or, alternatively, it exceeded the Municipality's statutory authority to register covenants in respect of the use of land. [32] In the alternative, if the Zoning Amendment Bylaw is held to be valid, the appellants argue that the Zoning Amendment Bylaw is inoperable in respect of all units in the Cascade Lodge by reason of being protected by the non‑conforming use provisions contained in s. 528 of the Local Government Act, R.S.B.C. 2015, c.

1. Finally, if the Zoning Amendment Bylaw is found to be invalid, or inoperable by reason of non‑conforming use, the appellants argue that the portion of the Licencing Bylaw which references the Zoning Amendment Bylaw is inapplicable to all of the units in the Cascade Lodge. Discussion (a) Zoning Amendment Bylaw (i) Standard of Review [33] The chambers judge used a correctness standard of review in determining whether the Municipality had the statutory authority to adopt the Zoning Amendment Bylaw and a reasonableness standard of review in determining whether the Municipality acted appropriately in deciding to enact the Zoning Amendment Bylaw. However, the landscape in respect of judicial review has shifted since the judge issued the Reasons as a result of the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], the first significant reconsideration of the topic of judicial review since Dunsmuir v. New Brunswick, 2008 SCC 9. [34] In Vavilov, the Supreme Court of Canada instituted a major change to the framework of judicial review, in addition to providing guidance on the application of the reasonableness standard of review. The change is that there will now be a presumption that reasonableness is the applicable standard in all cases and that the presumption can be rebutted only in two types of situations. The first way the presumption

can be rebutted is when the legislature has indicated that a different standard should apply. The second way is when the rule of law requires that the standard of correctness should be applied. [35] For the purposes of this appeal, the Court decided that, while the rule of law requires the correctness standard to be applied to questions related to the jurisdictional boundaries between two or more administrative bodies, it does not require the correctness standard to be applied to all jurisdictional questions. The Court specifically stated that jurisdictional questions will no longer be recognized as a distinct category attracting correctness review: para.

65. The result is that the jurisdictional power of an administrative body is to now be reviewed on the reasonableness standard unless there is a competing administrative body that may have jurisdiction. [36] The appellants submit that Vavilov does not change the two‑step process used by the chambers judge and that, as the council gave no reasons to justify the statutory authority for its enactment of the Zoning Amendment Bylaw, it is for this Court to interpret the legislation and determine whether there was statutory authority. They say that, under the reasonableness analysis dictated by Vavilov, a bylaw that exceeds the statutory authority is unreasonable. [37] The Municipality says there is no longer a two‑step process and the sole question is whether the outcome is reasonable. In my view, this is a matter of semantics. Where, as here, no reasons for the decision are given, the focus of a reasonableness analysis will be on the outcome (Vavilov at para. 138). However, a decision can be challenged as being unreasonable on two or more bases, and it may be appropriate to the reviewing court to consider each basis separately. The important point is that the two‑step process used by the chambers judge is no longer necessary as a result of a different standard of review being applicable to different types of challenges to the decision. [38] The effect of the appellants' submissions

on the standard of review is that this Court must interpret the relevant provision of the Local Government Act (s. 479) and decide whether the adoption of the Zoning Amendment Bylaw exceeded the statutory authority given to the Municipality. In my view, this approach would be contrary to Vavilov. [39] If this Court were to itself interpret the Local Government Act to determine whether the Zoning Amendment Bylaw falls within the statutory authority of the Municipality, it would be applying a correctness standard. That is the opposite of the direction of the Supreme Court of Canada that there is now to be a presumption in favour of the reasonableness standard on all questions, and contrary to the express statement in Vavilov that jurisdictional questions will no longer be a distinct category attracting the correctness standard. [40] At para. 83 of Vavilov, the Court commented that the role of the reviewing court is to review and, as a general rule, the reviewing court should refrain from deciding the issue itself. Later in its reasons, the Court specifically addressed the topics of statutory interpretation and municipal bylaws. [41] At para. 123 of Vavilov, in discussing the application of the reasonableness standard to questions of statutory interpretation, the Court commented that there will be cases where the administrative body did not explicitly consider the relevant

statutory provisions. Rather than permitting the reviewing court to embark on its own interpretation, the Court stated that the reviewing court may be able to discern the interpretation adopted by the decision maker from the record and determine whether that interpretation is reasonable. [42] At para. 137 of Vavilov, the Court referred to bylaws passed by a municipality as an example of a situation where the administrative body will typically not give reasons for its decision. The Court did not say that this is a basis for the reviewing court itself to interpret the enabling legislation but, instead, the Court made the point that the reviewing court must look at the record as a whole to understand the municipality's decision. [43] The appellants particularly rely on two passages in Vavilov. The first passage is contained in the section of the reasons in which the Court discussed its decision to cease recognizing jurisdictional questions as a distinct category attracting correctness review: [68] Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even

where the reasonableness standard is applied in reviewing a decision maker's interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker -- perhaps limiting it [to] one. [Emphasis in original.] The observation that there may be only one reasonable interpretation of a statutory provision was previously made by the Court in McLean v. British Columbia (Securities Commission), 2013 SCC 67 at para. 38. [44] There may be only one reasonable interpretation of the relevant statutory provisions in the present case and, if so, the application of the reasonableness standard of review will produce the same result as the correctness standard. However, that does not mean that we should apply the correctness standard. If the appellants' argument were taken to its natural conclusion, there would be only one reasonable interpretation of all statutory provisions. That is not the law. [45] The other passage in Vavilov particularly relied upon by the appellants is contained in the section of the reasons in which the Court discussed the interpretation of the statutory scheme governing administrative bodies: [110] Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker's authority.

If a legislature wishes to precisely circumscribe an administrative decision maker's power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker's ability to interpret the provision. Conversely, where the legislature chooses to use broad, open‑ended or highly qualitative language -- for example, "in the public interest" -- it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker's authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting. [46] The appellants say that, in the present case, the Legislature used precise and narrow language that delineated the power given to the Municipality in the governing statutory provision

(s. 479 of the Local Government Act) and that, according to the above passage, the Municipality's ability to interpret the provision was tightly constrained. That may be the case, but it does not affect which standard of review is to be applied. The reasonableness standard is the standard that must be applied and, if the language is as narrow as the appellants contend, there may be only one reasonable interpretation of the provision. In a similar vein, at para. 112 of Vavilov, the Court discussed the constraining effect of precedents on the issue in question, and the appellants say there are binding precedents in the case at bar that make the Municipality's interpretation of its statutory power unreasonable. These matters go to the application of the reasonableness standard, not to the choice of which standard of review applies. (ii) Application of Standard of Review [47] At the beginning of the previous section on the standard of review, I referred to the two‑step process used by the chambers judge. In the first step, she determined on a standard of correctness that the Municipality had the authority to adopt the Zoning Amendment Bylaw under s. 479 of the Local Government Act. In the second step, she performed an analysis like the one conducted in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 [Catalyst], where the Court upheld a taxation bylaw on the basis that

its adoption did not constitute a decision that no reasonable municipal council could have made. In this appeal, the appellants are not challenging the Zoning Amendment Bylaw on the basis that no reasonable council would have adopted it. Properly framed, the appellants' challenge on appeal is that the Municipality made an unreasonable decision when its council implicitly concluded it had the statutory power to enact the Zoning Amendment Bylaw. [48] On an appeal of a judicial review decision, it is not necessary for the appellate court to identify a specific error on the part of the judge who conducted the judicial review. It has been said that the appellate court is "stepping into the shoes" of the reviewing judge and applying the appropriate standard of review to the decision under review: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para.

247. This is particularly the case where, as here, the legal landscape has changed since the reviewing judge's decision as a result of Vavilov. Hence, it is not necessary for me to review any of the reasoning of the chambers judge on this issue. [49] Reasonableness review takes a different shape in cases where reasons are not required and have not been given: Vavilov at para.

76. As discussed above, Vavilov clarified that, in such cases, the record as a whole may serve as reasons. When reviewing a municipal bylaw, the reviewing court is instructed to look to the "debate, deliberations, and the statements of policy that give rise to the bylaw": para. 137, citing Catalyst at para. 29. [50] In the present case, there were no reasons given by the Municipality's council as to why it concluded it had the statutory authority to enact the Zoning Amendment Bylaw. The record discloses the reasons the council wanted to enact the Zoning Amendment Bylaw. It also discloses that the council believed that it had the requisite zoning power. However, the record does not indicate the reasons why the council held that belief. [51] In such a case, the reviewing court must determine whether the decision is reasonable by "examin[ing] the decision in light of the relevant constraints on the decision maker": Vavilov at para. 138. [52] The specific statutory provision in question is s. 479 of the Local Government Act, the relevant portion of which reads as follows: 479 (1) A local government may, by bylaw, do one or more of the following: * * * (c) regulate the following within a zone: (i) the use of land, buildings and other structures; Section 479 is made applicable to the Municipality by s. 3 of the Resort Municipality of Whistler Act, R.S.B.C. 1996, c. 407, which

provides that the Local Government Act and the Community Charter, S.B.C. 2003, c. 26, apply to the Municipality unless they are inconsistent with the Resort Municipality of Whistler Act. [53] Four other provisions of these statutes are relevant to the interpretation of s. 479 of the Local Government Act. Section 4 of the Community Charter dictates that the powers conferred on municipalities by the Local Government Act must be interpreted broadly in accordance with the purposes of those Acts and in accordance with municipal purposes. Section 7 of the Community Charter sets out the purposes of a municipality, one of which is to foster the economic, social and environmental well‑being of its community. Section 1 of the Local Government Act sets out its purposes, one of which is to provide local governments with the flexibility to respond to the different needs and changing circumstances of their communities. Finally, the word "regulate" is defined in s. 1 of the Schedule to the Community Charter to include "authorize, control, inspect, limit and restrict, including by establishing rules respecting what must or must not be done, in relation to the persons, properties, activities, things or other matters being regulated" (this definition is made applicable to the Local Government Act by virtue of s. 2 of the Schedule to that Act). [54] The appellants say the Zoning Amendment Bylaw

is not authorized by s. 479 because it does not solely regulate the use of land. Rather, the appellants contend, the Zoning Amendment Bylaw purports to regulate the users of the Cascade Lodge and the other properties covered by the Bylaw because it mandates that the properties have a rental pool operated by a single professional rental pool manager. This, they submit, is contrary to established precedent and renders unreasonable the implicit decision of the Municipality's council that s. 479 gave it the power to enact the Bylaw. [55] It is therefore necessary to review the case authorities dealing with this issue, most of which were discussed by the chambers judge. It is particularly important to review the cases in some detail because they are not entirely reconcilable in their reasoning. I will review the decisions relied upon by the appellants, as well as those cited by the respondents, in their chronological order. [56] The decision in Bell v. The Queen, [1979] 2 S.C.R. 212 [Bell], involved a conviction for violation of a zoning by‑law which required a dwelling unit to be used by an individual or one family alone. The term "family" was defined to mean persons interrelated by bonds of consanguinity, marriage or legal adoption. The appellant was a tenant of a detached duplex that he shared with two unrelated persons. [57] In agreeing that the conviction should be set aside,

Justice Spence, for the majority, noted that the power to enact the by‑law came from a provision in The Planning Act, R.S.O. 1970, c. 349, authorizing by‑laws regulating the character and use of buildings. Justice Spence agreed with two judges in the lower courts that the by‑law was not regulating the use of the building but who used it (at 220). Justice Spence went on to discuss the doctrine of unreasonableness and quoted from the reasons of Lord Russell in Kruse v. Johnson, [1898] 2 Q.B. 91 at 99-100 (Div. Ct.) [Kruse]. He concluded as follows (at 223): In view of the many possible inequitable applications of the definition of "family" which I have mentioned above, I am of the opinion that the by‑law in its device of adopting "family" as being the only permitted occupants of a self‑contained dwelling unit comes exactly within Lord Russell's words as to be found to be "such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men" and, therefore, as Lord Russell said, the legislature never intended to give authority to make such rules and the device of zoning by reference to the relationship of occupants rather than the use of the building is one which is ultra vires of the municipality under the provisions of the Planning Act. [58] It is not entirely clear whether Spence J. based his

conclusion on the unreasonableness of the by‑law or the fact that the by‑law regulated the occupants rather than the use of the building, or both. His emphasis seemed to be on the unreasonableness of the by‑law. It is interesting that the passage in Kruse relied upon by Spence J. was also quoted by Chief Justice McLachlin at para. 21 of Catalyst. [59] This Court had the occasion to consider Bell in Faminow v. North Vancouver (District) (1988), 61 D.L.R. (4th) 747 (B.C.C.A.) [Faminow], which involved a by‑law that allowed a dwelling unit and a family residential unit to exist in the same building. The term "family residential unit" was defined to be an accommodation for persons related by blood, marriage or common law, and excluded boarders. A chambers judge quashed the by‑law on application of a person who did not qualify under the by‑law to have more than one dwelling unit in a building. In doing so, the judge followed Bell and was critical of another decision that distinguished Bell (Smith v. Township of Tiny (1980), 107 D.L.R. (3d) 483 (Ont. H.C.J.), aff'd (1980), 114 D.L.R. (3d) 192n (Ont. C.A.), leave to appeal ref'd [1980] 2 S.C.R. xi [Township of Tiny]), by commenting that the judge in that case had "simply slid over the crucial words of the judgment of Spence J. ' and so was not regulating the use of the building but who used it'". [60] In allowing the appeal, Justice

Hinkson, for the Court, disagreed with the criticism of the chambers judge, stating (at 749): An examination of the context in which those words were spoken in the Bell case does not, in my respectful opinion, support that observation by the chambers judge. Rather, it is clear that Mr. Justice Spence was considering the reasonableness of the provisions of the by‑law before the court in the Bell case and he was not intending that that phrase, referred to by the chambers judge in this matter, should have the meaning attributed to it by the chambers judge. Justice Hinkson concluded that the by‑law was not unreasonable or inequitable, and should not have been quashed. It is apparent from his reasons that Hinkson J.A. considered Bell to be a "reasonableness" case and was not decided on the basis that the by‑law regulated users. [61] In Tenants' Rights Action Coalition v. Delta Corp. (1997), 151 D.L.R. (4th) 729 (B.C.S.C.) [Delta], Justice Koenigsberg severed a portion of a by‑law that permitted the occupation of a suite in a dwelling unit only by family members. She distinguished Bell and Faminow on the basis that they involved a consideration of the reasonableness of the by‑law and were not decided pursuant to the line of authorities that prohibit municipalities from enacting discriminatory by‑laws, including the decisions of Montréal (City of) v. Arcade Amusements Inc., [1985] 1

S.C.R. 368 [Arcade Amusements], and R. v. Sharma, [1993] 1 S.C.R. 650 [Sharma] (together with its companion case of R. v. Greenbaum, [1993] 1 S.C.R. 674 [Greenbaum]). [62] Delta was distinguished in Bowes v. Victoria (City) (1998), 53 B.C.L.R. (3d) 330 (S.C.), which again dealt with a by‑law permitting occupation by a family. In that by‑law, the term "family" was defined to be a group of persons who through marriage, blood relationship or other circumstances normally live together. In dismissing an application for a declaration that an 11‑bedroom residence did not contravene the by‑law, Justice Hutchison considered the issue of whether the by‑law was discriminatory by reason of family status contrary to the Human Rights Code, R.S.B.C. 1996, c. 210. [63] Justice Hutchison discussed Bell and Faminow, as well as Delta. He concluded as follows: [27] In my view, the City's By‑Law attempts to confine use, which is clearly within its regulatory power, to an organizational unit in society living as a household; that is, a collective body of persons who live as an organizational unit of society in one house, under one management. At the very least some permanence and commitment to the group and each other is required. The By‑Law is not discriminating on the basis of family status. Because the By‑Law only places restrictions on the use and not the users, [Delta] is

distinguishable. Justice Hutchison also commented (at para. 26) that it would be permissible for a zoning by‑law to confine the use of premises to professionals, as opposed to retailers. He appears to have been of the view that zoning by‑laws regulating use can incidentally affect who uses the premises. [64] Another 1998 decision of relevance is North Vancouver (District) v. Lunde (1998), 162 D.L.R. (4th) 402 (B.C.C.A.) [Lunde], which involved a covenant under s. 215 of the Land Title Act, R.S.B.C. 1979, c. 219, that the property in question would be occupied by persons over the age of 19 only and with at least one occupant being 50 years of age or older. Although the case did not involve a zoning bylaw, it is relevant because s. 215 authorized covenants containing provisions in respect of the use of land. Justice Lambert observed that some cases suggest that a distinction should be made between the use of land and the person who uses the land, and that a power in respect of the use of land does not permit regulation of the person who uses the land. He referred to, among others, Bell, Township of Tiny and Faminow, and he commented that the cases may seem difficult to reconcile. He agreed with the comment in Township of Tiny that there was widespread acceptance that a regulation of use in terms of a single‑family dwelling is permissible. Justice Lambert concluded that he must

regard Faminow (and Township of Tiny) as decisive, and he held that the covenant was within the powers of the municipality. [65] There was a brief reference to Bell in Whistler (Resort Municipality) v. Wright, 2003 BCSC 1192. That case involved a zoning bylaw that permitted residential use and excluded temporary accommodation. The municipality applied for an injunction to restrain two owners from renting out their properties as short‑term accommodation for tourists. In granting the injunction, Justice Owen‑Flood rejected the argument of the owners that the bylaws improperly attempted to regulate on the basis of residency, ownership or tenure, rather than land use. Justice Owen‑Flood found that the bylaw did regulate the use of land and, unlike in Bell, it did not discriminate on the basis of the identity or relationship of the occupants. [66] In Petro‑Canada v. North Vancouver (District of), 2001 BCCA 203, the zoning bylaw in question required both gasoline bars and gasoline service stations to have a full service pump for a specified minimum number of hours a day. The bylaw was challenged on the basis that it went beyond regulating use and purported to impose conditions on service that were unrelated to land use. This Court upheld the bylaw on the basis that a requirement of gasoline pumps dedicated to service by station attendants, rather than the customer or self‑service,

involved regulation in the manner in which the property was used. In its decision, the Court did not refer to any of the above authorities other than citing Arcade Amusements at para. 14 for the proposition that zoning bylaws must not be unreasonably discriminatory. [67] The next decision, School District No. 61 v. District of Oak Bay, 2006 BCCA 28 [Oak Bay], is one relied upon heavily by the appellants. It involved a property on which a closed school was located. The zoning applicable to the property provided that the property's principal use was to be "Civic use", which was defined to mean a use providing for public functions under the auspices of a government body, including various uses such as offices, schools, colleges and hospitals. The owner of the property, the School Board, challenged the validity of the zoning by‑law on the basis that it was discriminatory in the sense that it distinguished between users, as opposed to uses. This Court upheld the challenge, and severed the part of the by‑law requiring the property to be used for public functions under the auspices of a government body. [68] In para. 17 of her reasons for the Court, Justice Newbury quoted part of the passage from Bell that I have reproduced above, but she omitted the first two lines of the paragraph up to the phrase "I am of the opinion that". She did not mention the discussion of Bell in Faminow and

Lunde. She then referred to Sharma (and the companion case of Greenbaum), in which the Court held that municipalities do not have the power to pass by‑laws having discriminatory provisions unless the enabling legislation authorizes it. [69] The core reasoning of Newbury J.A. was as follows: [25] I return, then, to the question of discrimination. In my view, the definition of "Civic use", as incorporated in By‑law No. 4235 by reference to By‑law No. 3531, does distinguish between public and non‑public offices and yards, schools, colleges and universities, hospitals, and the other specifically enumerated uses, and such distinction amounts to one based on "user" rather than use itself. I view s. 903 as authorizing a municipality to specify that the property may be used for "office" purposes, but not to distinguish between offices used by a private body and those used by government. Similarly, the legislation allows a municipality to restrict the property to use for a "school" or a "college", but does not in my opinion allow the municipality effectively to provide that no such school or college may be operated as a private enterprise. [70] The decision of Paldi Khalsa Diwan Society v. Cowichan Valley (Regional District), 2014 BCCA 335 [Paldi], involved the interpretation of a zoning bylaw to determine whether it permitted the use of a commercial crematorium. At para. 23, Justice

Levine referred to an argument of the appellants, relying on Oak Bay, that a zoning power cannot restrict the users (as opposed to uses) of land through zoning bylaws. As Levine J.A. concluded that the operation of a commercial crematorium was permitted by the wording of the bylaw, she concluded (at para. 54) that it was not necessary to address this argument. [71] The decision of Qterra Properties Ltd. v. Delta (Corporation), 2016 BCCA 504 [Qterra], is potentially relevant because, although it involved a land use contract, the contract restricted the uses to those set out in a zoning bylaw. The municipality had denied a business licence for the operation of a privately owned liquor store on the basis that, although the bylaw permitted the use of retail trade, private liquor stores were not permitted under provincial law at the time the land use contract was created. This Court set aside the decision of the municipality on the basis that the use of a private liquor store fell within the wording of the bylaw and the fact that provincial law would not have permitted the sale of liquor at a privately owned liquor store at the time of the creation of the contract did not make the contract illegal or unenforceable. [72] In the course of his reasons for the Court, Justice Savage stated his view that the positions advanced by the municipality were tantamount to a prohibition on a

particular user, not a prohibition on use. He commented, at para. 50, that this Court had confirmed that a zoning power could be exercised only to restrict uses of land, not the users of land, and he cited Paldi and Oak Bay. He went on to hold the bylaw in question (as incorporated into the land use contract) did not create restrictions on which users could carry on a retail trade. [73] Although reference was made in Paldi and Qterra to Oak Bay for the proposition that a zoning power can only restrict uses of land, and not users of land, I note that there was no analysis of Oak Bay in either case, and neither decision was based on this proposition. In Paldi, Levine J.A. concluded that the use in question was permitted by the wording of the bylaw and, in Qterra, Savage J.A. held that the bylaw did not create any restriction on users. There was no holding that a bylaw was invalid to the extent that it regulated users of land. [74] In Nanaimo (Regional District) v. Saccomani, 2018 BCSC 752, there was an issue of whether a zoning bylaw could exclude vacation home rentals in a residentially zoned area. Justice Shergill referred to Oak Bay for the principle that municipalities can only regulate use of land rather than user, but she held that the principle did not apply because the exclusion of vacation rentals was regulation of use, not user. [75] Finally, in an oral decision

rendered subsequent to the hearing before the chambers judge in this case, Bulkley‑Nechako (Regional District) v. FRC Holdings Inc., 2019 BCCA 122 [Bulkley‑Nechako], this Court cited Oak Bay for the proposition that it is "well‑settled law that a bylaw may not, without specific provision, regulate the users of property" (para. 23). Again citing Oak Bay, the Court then stated that a "bylaw discriminates where it draws a distinction which the enabling legislation does not authorize" (para. 23). The Court found it unnecessary to apply the principle because it held that a zoning bylaw providing for residential dwellings did not regulate users and properly excluded commercial use. [76] A review of these authorities leads me to make the following observations. Contrary to the statement in Bulkley‑Nechako, I do not regard it as well‑settled law in British Columbia that a bylaw may not regulate users in any way. In Faminow, this Court interpreted Bell as being a decision based on the reasonableness of the by‑law and rejected the chambers judge's interpretation that Bell stood for the proposition that by‑laws could not regulate users. Faminow was considered to be binding authority in Lunde and was followed by this Court. Faminow and Lunde have not been overruled by the Supreme Court of Canada or a five‑person division of this Court, and they remain binding authority. [77] This is not to

suggest, however, that Oak Bay and other decisions applying it came to the wrong results. In my view, while Newbury J.A. in Oak Bay referred to Bell as part of the School Board's argument that a municipality may not regulate users of property, she did not decide the case on this basis. Rather, Oak Bay was decided, as was Delta, on the basis of the line of authorities of Arcade Amusements, Sharma and Greenbaum that municipalities may not enact discriminatory bylaws. [78] One of the difficulties in this area is that regulation of use will often have the effect of regulating users at least to some extent. For example, zoning bylaws that prescribe single‑family dwellings are permissible (Lunde), but such bylaws clearly affect who can use the property (e.g., a corporation could not use it). The issue in that circumstance is whether the definition of "family" is unreasonable to the extent that the legislature would not have intended to give authority to make such a bylaw (Bell) which, in my view, is equivalent to the notion of unreasonableness discussed in Catalyst (i.e., that no reasonable municipal council would adopt such a bylaw). [79] The problem that has arisen in the case authorities is that there appears to be a conflation of three lines of authorities which I will refer to as the "user", the "reasonableness" and the "discrimination" lines of cases. In particular, Oak Bay has

been incorrectly labelled in obiter dicta in Paldi, Qterra and Bulkley‑Nechako as a "user" case when it was actually a "discrimination" case. On many occasions, bylaws that regulate users to a lesser or greater degree may be found to be discriminatory or otherwise unreasonable, but that will not always be the case. In my opinion, there is no general principle that all bylaws that have the effect of regulating users in any respect are beyond the power of municipalities to adopt because, if there was such a principle, Faminow would have been decided differently. [80] I turn now to the central question in determining whether the Zoning Amendment Bylaw should be set aside. Was it unreasonable for the Municipality's council to implicitly conclude that s. 479 of the Local Government Act authorized it to adopt the Zoning Amendment Bylaw? [81] I do not accept the appellants' contention that the Legislature used precise and narrow language in giving municipalities the power to regulate use of land. As set out in s. 4 of the Community Charter, such powers are to be interpreted broadly in accordance with municipal purposes, one of which is to foster economic well‑being of the community. In addition, the word "regulate" is broadly defined. [82] I also disagree with the appellants' contention that there are binding precedents that make the interpretation of s. 479 of the Local Government

Act by the Municipality's council unreasonable. As I hope to have illustrated by my review of the cases, the law in this area is not settled, and none of the decisions are binding in the sense of being indistinguishable from the present situation. [83] The Zoning Amendment Bylaw required that, except to the extent the units in the listed properties were used by their owners, they were to be used for temporary accommodation for visitors by means of a rental pool arrangement providing integrated hotel‑like services and operated by a single professional rental pool manager. At the hearing of the appeal, the appellants conceded that the zoning power under s. 479 permitted the Municipality to enact a zoning bylaw requiring the property to be used as an integrated hotel operation. What the appellants submit takes the Zoning Amendment Bylaw outside the power given by s. 479 was the requirement that the rental pool be operated by a single professional rental pool manager (unless it was operated, directly or indirectly, by the strata corporation). This requirement, the appellants say, is contrary to the restriction that municipalities cannot regulate users. [84] In the present case, there were no reasons given by the Municipality's council as to why it considered the Zoning Amendment Bylaw to fall within the s. 479 zoning power. The record discloses the reasons for the enactment of the

Zoning Amendment Bylaw, but it does not cast any light on the reasoning of the council in this regard. In such a case, the reviewing court must assess whether the outcome is reasonable in light of the relevant constellation of law and facts: Vavilov at paras. 105, 138. To this end, it is necessary to consider whether there are any reasonable interpretations of s. 479 that would have authorized the Municipality's council to adopt the Zoning Amendment Bylaw: Catalyst at para. 24; and Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 12. [85] In my view, it would have been reasonable for the Municipality's council to conclude that the jurisprudence in relation to zoning bylaws regulating users of land is unsettled in British Columbia and to conclude, as did the chambers judge at paras. 242-244 of the Reasons when she was considering this issue on a correctness standard of review, that s. 479 permits the adoption of zoning bylaws regulating users as long as they are not unreasonably discriminatory in their effect. As the requirement for a single professional rental pool manager is not discriminatory, it would have been reasonable for the Municipality's council to conclude that the Zoning Amendment Bylaw was within the s. 479 zoning power. [86] In addition, it would have been reasonable for the Municipality's council to have

concluded that there was a valid land use management rationale for the properties to be zoned for use as an integrated hotel operation and that the Zoning Amendment Bylaw did not go beyond the s. 479 zoning power for the Bylaw by incidentally requiring the integrated hotel operation to be managed by a single professional rental pool manager. As set out in the administrative report dated July 4, 2017, there was a land use management rationale for the zoned properties to be used under single management arrangements. [87] In the alternative, if the law does prohibit bylaws from regulating users to any extent, it would have been reasonable for the Municipality's council to have concluded that the requirement for a single professional manager of the rental pool was not a regulation of users because the manager was not the user of the units. The units are being used by their owners and visitors, not the manager. In a different context, where an owner of a hotel is also managing it, the manager would be considered to be the user of the property; namely, using the property to rent out rooms to the public as part of a hotel business. However, in the present context, the rental pool manager is not renting out the units for its own account, but is doing so on behalf of the owners. [88] As there were at least three ways in which the Municipality's council could have reasonably concluded

that s. 479 gave it the power to adopt the Zoning Amendment Bylaw and the reasonableness of the decision to adopt the Bylaw is not being otherwise challenged, it has not been shown that the council's decision to enact the Bylaw was unreasonable. Hence, the council's decision should not be disturbed on judicial review. (b) Non‑Conforming Use [89] As I would not set aside the Zoning Amendment Bylaw, it is convenient to next consider the appellants' alternative argument that the chambers judge erred in dismissing their application for a declaration that the use of any units located within the Cascade Lodge for temporary lodging by visitors to Whistler, without participation in the rental pool arrangement required by the Zoning Amendment Bylaw, was a lawful non‑conforming use pursuant to s. 528 of the Local Government Act. [90] As a preliminary point, the chambers judge held in the Supplementary Reasons that the appellants' request for this declaration could not properly be brought in a petition under s. 2(2)(b) of the Judicial Review Procedure Act because a decision had not yet been made by the Municipality denying the appellants a business licence. However, in the interest of administrative efficiency, the judge went on to consider the issue on its merits. At the hearing of the appeal, the Municipality did not press this procedural point, but expressed concern that this case

should not be relied upon as a precedent for the judicial review process to be regarded as the proper procedure for obtaining a declaration of non‑conforming use. Hence, I will decide the issue on its merits but, in doing so, I am not condoning the procedure used by the appellants. [91] Section 528(1) of the Local Government Act reads as follows: Non‑conforming uses: authority to continue use 528 (1) Subject to this section, if, at the time a land use regulation bylaw is adopted, (a) land, or a building or other structure, to which that bylaw applies is lawfully used, and (b) the use does not conform to the bylaw, the use may be continued as a non‑conforming use. Section 528(5) provides that, if a non‑conforming use of part of a building is authorized to continue, the whole of the building may be used for the non‑conforming use. [92] The evidence was that the Appellant Owners acquired two units in the Cascade Lodge prior to the adoption of the Zoning Amendment Bylaw. After some delay following the purchase of these units, the locks on the units were changed. On July 17, 2017, the Appellant Owners placed online advertisements for the rental of the two units. The Zoning Amendment Bylaw was adopted on July 18, 2017. The first rental of one of the two units by the Appellant Owners commenced on July 22, 2017. [93] The appellants say the two units were being used prior to the

adoption of the Zoning Amendment Bylaw for tourist accommodation under individual rental management agreements between ResortQuest and the former owners, and that there was no evidence that the units were subject to a single rental pool arrangement. Although the units were not occupied between the time of their purchase by the Appellant Owners and the adoption of the Zoning Amendment Bylaw, the appellants say the units continued to be used outside a rental pool arrangement and that they are entitled to continue that use as a non‑conforming use. [94] The onus was on the appellants to establish a non‑conforming use at the time of the adoption of the Zoning Amendment Bylaw: Langley (Township) v. Wood, 1999 BCCA 260 at para.

9. While they assert that there was no evidence that the two units were subject to a single rental pool arrangement, they did not introduce any evidence that they were not subject to such an arrangement. Indeed, the evidence is contrary to the appellants' assertion. [95] The affidavit sworn by a representative of ResortQuest stated that the Cascade Lodge was "one of the largest single hotel rental pools operated by ResortQuest in Whistler" and that ResortQuest managed all of the units acquired by the Appellant Owners prior to their acquisition. While it is true that ResortQuest did not have an overarching management contract for all of the rental units, it entered into individual rental management agreements with the owners having the same substantive elements. A copy of the basic form of the rental management agreement was attached to the representative's affidavit, and it provided that the rental of each unit was to be managed in accordance with the rental pool. This evidence establishes that, while there may have been individual rental management agreements, there was a single rental pool arrangement at the Cascade Lodge up to the time of the adoption of the Zoning Amendment Bylaw. [96] The use of the units the appellants were required to prove as a non‑conforming use at the time of the adoption of the Zoning Amendment Bylaw was use for temporary accommodation by visitors to

Whistler outside of a rental pool arrangement managed by a single professional rental pool manager. The appellants did not prove such a non‑conforming use. [97] In the alternative, the appellants rely on the principle of "commitment to use". This principle was described in S.C.I.C. v. City of Burnaby, 2001 BCCA 708 [S.C.I.C.]: [13] The trial judge also discussed the principle that "commitment to use", if the commitment is unequivocal and demonstrable by objective evidence, may constitute use of the land for the purpose to which it is unequivocally committed. Among the relevant cases are Cowichan Valley v. Yole (1988), 41 M.P.L.R. 78 (B.C.C.A.), Sunshine Coast v. Bailey (1995), 15 B.C.L.R. (3d) 16 (B.C.S.C.), and British Columbia Custom Car Association v. Mission (1990), 3 M.P.L.R. (2d) 278 (B.C.S.C.). Those cases illustrate, from their facts, the kind of unequivocal "commitment to use" which constitutes use for the purpose of the application of the non‑conforming use legislative provisions and principles. But it is important to understand that the "commitment to use" concept is designed to help in determining the use. It is not an alternative to use. It is not de jure use as opposed to de facto use. It is use itself. In S.C.I.C., the Court did not find it necessary to rely on this principle because it was otherwise satisfied that the property was being put to a non‑conforming

use at the time of the change in zoning. [98] The chambers judge did not specifically address this principle. She did hold that the placement of an advertisement prior to the adoption of the Zoning Amendment Bylaw did not constitute actual use. In my view, an intention to change the use of the units does not amount to an actual change in use. The evidence put forward by the appellants on this point was not objective and was not sufficient to constitute an unequivocal commitment to put the units to another use such that it can be concluded that the use had been changed to a non‑conforming use prior to the adoption of the Zoning Amendment Bylaw. [99] In my opinion, the appellants have not established any error on the part of the judge in refusing their request for a declaration of non‑conforming use. (c) The Covenant [100] The appellants raise two grounds of appeal with respect to the Covenant. First, relying on the decision of Anderson, they say the Covenant is unenforceable by reason of vagueness or uncertainty. Second, they say that the Covenant exceeds the statutory authority of the Municipality. I will deal first with the latter ground because it is similar to the ground relating to the validity of the Zoning Amendment Bylaw that I have already addressed. (i) Statutory Power [101] The statutory authority for the creation of the Covenant was s. 215 of the Land Title Act, 1979, which authorized negative or positive covenants in favour of, among others, municipalities containing provisions in respect of the use of land or buildings. As they did with respect to the Zoning Amendment Bylaw, the appellants contend that the Covenant regulates users of land, not the use of land, and was beyond the authority granted in s.

215. As the challenge of the Covenant is not by way of judicial review, the standard of review is correctness. [102] The short answer to this submission is that, at the hearing of the appeal, the appellants conceded that, if the Zoning Amendment Bylaw had not required the rental pool be operated by a single professional rental pool manager, the Bylaw would not have crossed the line between regulation of use of land and regulation of users of land. The Covenant has no requirement for a rental pool at the Cascade Lodge to be operated by a single professional rental pool manager and, hence, it does not cross the line. [103] The Covenant requires each unit in the Cascade Lodge to be placed in a rental pool approved by the Municipality permitting the owners to use their units up to 56 days a year and otherwise permitting the units to be used for rental to the public. These provisions relate to the use of land (or building), and the Covenant did not exceed the statutory authority contained in s. 215. (ii) Vagueness or Uncertainty [104] Anderson involved a strata building that was constructed to be operated as a hotel to the extent that the condominium units were not occupied by their owners. The developer entered into a covenant with itself, and the covenant was registered against all of the units in the building, which were subsequently sold by the developer to purchasers except

that the unit containing the front desk was sold to a numbered company and subsequently leased to a company that managed the hotel. [105] The covenant in Anderson provided that the owner of a unit would not permit the unit to be used for rental use to the public except in accordance with the "Rental Pool Management Agreement". The term "Rental Pool Management Agreement" was defined to mean the agreement made between the owner and the "Rental Manager" setting out the terms by which the unit would be made available for rental use. The form of the Rental Pool Management Agreement was not attached to the covenant. [106] Relying on the decisions of Newco Invt. Corp. v. B.C. Transit (1987), 14 B.C.L.R. (2d) 212 (C.A.), and Re Sekretov and City of Toronto (1973), 33 D.L.R. (3d) 257 (Ont. C.A.), this Court in Anderson declared that the covenant was void. It was held that there was a lack of certainty in the covenant because the terms of the Rental Pool Management Agreement were unknown and there was no mechanism by which the terms could be independently established (such as arbitration) if the owner and the Rental Manager were unable to negotiate the terms of such an Agreement. [107] The appellants say Anderson stands for the proposition that the absence of terms of a rental pool renders a rental pool covenant uncertain. They submit that, as the Covenant does not contain the commercial

terms of a rental pool, the Covenant is uncertain and should be set aside. [108] In my opinion, the appellants' submission is based on an overly broad interpretation of Anderson. It does not stand for the proposition that, unless the covenant sets out all of the terms of a rental pool arrangement, it is vague or uncertain. Instead, it stands for the proposition that a covenant will be unenforceable if it requires an owner of property wishing to rent out their unit to first enter into an agreement with a third party having unknown terms and if there is no mechanism for settling the terms of the agreement. [109] In this case, the Covenant does not require the owner of a unit in the Cascade Lodge to enter into an agreement. It simply requires the unit to be placed in a rental pool approved by the Municipality for rental to the public for the days on which the owner is not permitted to use it. As illustrated by the last new subsection added by the Zoning Amendment Bylaw, it was open to the strata corporation, either directly or indirectly, to operate the rental pool without the owners having to enter into agreements with a third party to manage the Cascade Lodge. The initial owners of the two units may have entered into individual rental management agreements with ResortQuest's predecessor, but it was not required by the Covenant. [110] The chambers judge distinguished Anderson as

turning on its specific facts. She noted that the absence of the terms of a rental management agreement did not create uncertainty in the Covenant (para. 122), and I agree with her because the Covenant does not require such an agreement to be entered into. I also agree with her that there is no ambiguity (or vagueness) as to the restrictions imposed by the Covenant (para. 122), and that the Covenant provided a mechanism for the Municipality to monitor and enforce the substantive terms of the Covenant (para. 125). The fact that the Municipality may not have approved the rental pool arrangement in effect at the Cascade Lodge, or may have a current policy against approving such arrangements generally, does not make the Covenant vague or uncertain. The consequences of the Municipality's failure in that regard, if any, are not before the court in this proceeding. [111] The Covenant is not vague or uncertain simply because it requires the unit in question to be placed in a rental pool. The provisions of the Covenant are clear and they do not require the owner of the unit to enter into an agreement with unknown terms. In my opinion, the Covenant is not invalid due to vagueness or uncertainty. I would not give effect to this ground of appeal. (d) The Licencing Bylaw [112] As I have not found the Zoning Amendment Bylaw to be invalid or inoperable, it is not necessary for me to address the appellants' ground of appeal in respect of the Licencing Bylaw. Conclusion [113] I would dismiss the appeal. "The Honourable Mr. Justice Tysoe" I AGREE: "The Honourable Mr. Justice Groberman" I AGREE: "The Honourable Mr. Justice Willcock"