English v. Richmond (City)

2021 BCCA 442 English v. Richmond (City)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: English v. Richmond (City), 2021 BCCA 442 Date: 20211124 Docket: CA47143 Between: Linda English Respondent (Petitioner) And City of Richmond and James Cooper in His Capacity As Director of Building Approvals Appellants (Respondents) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch The Honourable Madam Justice DeWitt-Van Oosten On appeal from: An order of the Supreme Court of British Columbia, dated November 3, 2020 (English v. Richmond (City), 2020 BCSC 1642, Vancouver Docket S1913978). Counsel for the Appellants, appearing via videoconference: A.D. Bradley N.S.A. Falzon Counsel for the Respondent, appearing via videoconference: J. Hernaez F. Wu, Articled Student Place and Date of Hearing: Vancouver, British Columbia June 14, 2021 Place and Date of Judgment: Vancouver, British Columbia November 24, 2021 Written Reasons by: The Honourable Mr. Justice Frankel and The Honourable Madam Justice DeWitt-Van Oosten Concurred in by: The Honourable Mr. Justice Fitch Summary: Appeal by Richmond from an order requiring it to issue a building permit for a cannabis greenhouse on land within the provincially regulated Agricultural Land Reserve. Regulations made under the Agricultural Land Commission Act (B.C.) restrict a local government's authority to prohibit cannabis production within the Reserve. The property owner

proposed to build a structure she contends is soil-based and, therefore, permitted under the regulations. A building inspector refused the permit. He interpreted the regulations as having a cut-off date after which a local government can prohibit the growing of cannabis in all structures, including those that are soil-based. On a judicial review application brought by the property owner a judge, relying on extrinsic evidence concerning the regulation (i.e., publicly available documents from the Ministry of Agriculture and the Agricultural Land Commission) and applying the framework set out in Canada (Minister of Citizenship and Immigration) v. Vavilov (S.C.C.), held that the inspector's interpretation of the regulations was unreasonable and that the cut-off date does not apply to soil-based structures. The judge further held that the unreasonable interpretation was the only reason for the refusal of the permit. In the result, the judge ordered Richmond to issue the permit. Richmond did so before filing an appeal. Richmond challenged the extrinsic evidence the judge admitted, his finding that the inspector's interpretation was unreasonable, and his order that the permit be issued. The property owner contended the appeal should be dismissed as moot because the permit had been issued. Held: (1) The appeal is not moot. If this Court should determine the judge erred in finding the

inspector's interpretation unreasonable, then Richmond would have the right to revoke the permit. (2) The judge did not err in admitting the extrinsic evidence or in finding the inspector's interpretation unreasonable. The only reasonable interpretation of the regulations is that the cut-off date does not apply to soil-based structures. (3) The judge did err in ordering the permit to be issued. It cannot be said that the inspector had determined the proposed structure is soil-based. Neither the judge nor this Court has the technical expertise necessary to determine that question. Accordingly, the permit application is remitted to Richmond for further consideration. Reasons for Judgment of the Honourable Mr. Justice Frankel and the Honourable Madam Justice DeWitt-Van Oosten: Introduction [1] This appeal concerns the City of Richmond's refusal to issue a building permit to Linda English for a greenhouse in which to grow cannabis hydroponically within the provincially regulated Agricultural Land Reserve ("ALR"). Throughout these reasons, the term "soil-based" is used as shorthand for the words "has a base consisting entirely of soil" that appear in the regulation central to this case. [2] The greenhouse is to be built on land in Richmond owned by Ms. English that is zoned Agriculture (AG-1). Because that land is within the ALR, it is subject to the Agricultural Land Commission

Act, S.B.C. 2002, c. 36 [ALCA], and regulations made pursuant to that Act by the Lieutenant Governor in Council. In refusing the permit, James Cooper, Richmond's Director of Building Approvals and a building inspector, interpreted the regulation that precludes local and First Nation governments from prohibiting the lawful production of cannabis within the ALR as time-limited with respect to all types of structures, including those that are soil-based. Ms. English applied to build what she contends is a soil-based structure after the cut-off date in the regulation had passed. [3] Ms. English applied for judicial review of Mr. Cooper's decision. Justice Mayer of the Supreme Court of British Columbia allowed that application. Based on extrinsic evidence Ms. English tendered on the application, the chambers judge held the only reasonable interpretation of the regulation to be that the cut-off date does not apply to soil-based structures. In the result, he quashed Mr. Cooper's decision and ordered Richmond to issue the permit. [4] Richmond appeals. It submits the chambers judge erred in finding Mr. Cooper's interpretation of the regulation to be unreasonable. In that connection, it says the judge erred in relying on the extrinsic evidence. In the alternative, Richmond says the judge erred in not remitting the matter for reconsideration. [5] Ms. English supports all aspects of the

chambers judge's decision. By way of a preliminary objection she submits this appeal should be dismissed as moot. That objection is based on the fact that Richmond issued the permit after the judge released his reasons for judgment and construction of the greenhouse has started. At the hearing, we dismissed the mootness application with reasons to follow and then proceeded with the appeal. [6] What follows are our reasons for dismissing the mootness application and our reasons for remitting Ms. English's application to Richmond for reconsideration. As discussed below, we agree with the chambers judge that the only reasonable interpretation of the regulation is that the cut-off date does not apply to soil-based structures. However, we disagree with his decision to order Richmond to issue the permit. The Regulatory Framework [7] Section 58(1)(b) of the ALCA authorizes the Lieutenant Governor in Council to make regulations "specifying farm uses of agricultural lands that may not be prohibited by a local government enactment or a first nation government law". [8] In June 2018, the broad definition of "farm business" in s. 3.4 of Richmond's Zoning Bylaw No. 8500 was amended to exclude "a medical cannabis production facility", "a non-medical cannabis production facility", and "a cannabis research and development facility". However, as of July 13, 2018, the Agricultural Land Reserve

Use, Subdivision and Procedure Regulation. B.C., Reg. 171/2002 (the "2018 Regulation") designated the lawful production of cannabis as a permitted farm use within the ALR: Part 2 -- Permitted Uses Activities designated as farm use 2(1) [Repealed.] (1.1) The activities designated under this section as farm uses for the purposes of the Act must not be prohibited (a) by any local government bylaw except a bylaw under section 552 of the Local Government Act, or (b) by a law of the applicable treaty first nation government, if the activity is undertaken on treaty settlement lands. (2.5) The lawful production of cannabis is designated as farm use for the purposes of the Act if produced outdoors in a field or inside a structure (a) that has a base consisting entirely of soil, or (b) that was, before the date on which this section came into force, (i) constructed for the purpose of growing crops inside it, including but not limited to the lawful production of cannabis, or (ii) under construction for the purpose referred to in subparagraph (i), if that construction (A) was being carried out in accordance with all applicable authorizations and enactments, and (B) continues without interruption from the date it began to the date the structure is completed, other than work stoppages considered reasonable in the building industry, and that has not been altered since that date to increase

the size of its base or to change the material used as its base. [Emphasis added.] Because Richmond had not been authorized under s. 552 of the Local Government Act, R.S.B.C. 2015, c. 1, to make bylaws in relation to farming operations, the exclusion in its zoning bylaw did not apply to the lawful production of cannabis on land within the ALR. At this time, the federal Marihuana for Medical Purposes Regulations, SOR/2013-119, permitted only the production of medical cannabis. [9] On October 17, 2018, the Cannabis Act, S.C. 2018, c. 16, created a new framework for the production, distribution, sale, and possession of cannabis. [10] On February 22, 2019, the 2018 Regulation was replaced by the Agricultural Land Reserve Use Regulation, B.C. Reg. 30/2019 (the "2019 Regulation"), which includes the following: Part 2 -- Farm Uses Farm uses that may not be prohibited 4 The farm uses referred to in this Part may not be prohibited (a) by a local government enactment except a bylaw under section 552 of the Local Government Act, or (b) by a first nation government law, if the activity is conducted on settlement lands. Cannabis 8(1) The use of agricultural land for producing cannabis lawfully may not be prohibited as described in section 4 if the cannabis is produced (a) outdoors in a field, or (b) inside a structure that, subject to subsection (2), has a base consisting entirely of

soil. (2) The use of agricultural land for producing cannabis lawfully may not be prohibited as described in section 4 if the cannabis is produced inside a structure that meets both of the following conditions: (a) the structure was, before July 13, 2018, (i) constructed for the purpose of growing crops inside it, including but not limited to producing cannabis lawfully, or (ii) under construction for the purpose referred to in subparagraph (i), if that construction (A) was being conducted in accordance with all applicable authorizations and enactments, and (B) continues without interruption from the date it began until the date the structure is completed, other than work stoppages considered reasonable in the building industry; (b) the structure has not been altered since July 13, 2018 to increase the size of its base or to change the material used as its base. [Emphasis added.] [11] On September 3, 2019, Richmond amended Zoning Bylaw No. 8500 to address cannabis production on land within the ALR. That amendment included the following: 5.21 Cannabis Production and Cultivation in the Agricultural Land Reserve 5.21.1 Subject to the limitations set out in Sections 4 and 8 of the Agricultural Land Reserve Use Regulation (as amended), the production and cultivation of cannabis and any related accessory uses is prohibited in the Agricultural Land Reserve. 5.21.2 Subject to the

limitations set out in Sections 4, 8 and 11(1) and (2) of the Agricultural Land Reserve Use Regulation (as amended), the storing, packing, preparing and processing of cannabis is prohibited in the Agricultural Land Reserve. [12] A building inspector's authority to refuse to issue a building permit is set out in Richmond's Building Regulation Bylaw No. 7230: PART THREE: THE INSPECTOR 3.1 Refusal to Issue Permits 3.1.1 The building inspector may refuse to issue a building permit : (a) where in such inspector's opinion, the proposed work will contravene the requirements of the building code or the provisions of this or any other applicable bylaws of the City, or any applicable Provincial statutes; Factual Background [13] On May 6, 2019, Ms. English submitted a building permit application along with supporting documentation that included technical specifications and engineering drawings. The application stated the greenhouse would be used for "cannabis cultivations" under the federal Cannabis Regulations, SOR/2018-144. The greenhouse was described and depicted as being supported by in-ground "screw piles". [14] Over the next several months Ms. English's son, Stav Adler, dealt with Richmond staff concerning the application. [15] On May 17, 2019, Curtis Tillyer, Richmond's Environmental Coordinator (Environment & Sustainability), who was involved in the environmental review of the

greenhouse project, emailed Mr. Adler asking for information concerning utility connections and the management of storm water and runoff. Mr. Adler responded on May 21, 2019. In his reply, Mr. Adler stated that cannabis would be grown using a "closed hydroponic grow system" with the plants sitting on "specialized grow tables". [16] On May 30, 2019, Mr. Tillyer emailed Mr. Adler seeking clarification on how: (i) the greenhouse would manage odour emissions; (ii) the water system would be replaced; and (iii) waste would be managed. Mr. Tillyer stated he had "marked up" the site plan that had been submitted to indicate where certain types of fencing should be placed. Mr. Adler replied on June 4, 2019. [17] Mr. Adler had extensive dealing with Serena Trachta, Manager, Plan Review, City of Richmond, Planning and Development/Building Approvals. On May 28, 2019, Ms. Trachta emailed Mr. Adler asking for information on how the odour created by the growing of cannabis would be reduced. Mr. Adler responded that day. [18] On May 29, 2019, Mr. Adler emailed Ms. Trachta information with respect to the licencing of cannabis production under the Cannabis Act. [19] On June 18, 2019, Mr. Adler emailed Ms. Trachta asking if she needed anything further from him. She replied on June 25, 2019, stating: The file is currently under review. Nothing more needed at this time. [20] On July 2, 2019, Ms.

Trachta emailed Mr. Adler to advise him she would be away from her office, stating, "[y]our plans are in review and we anticipate having the review complete near the end of July, when I return." On July 29, 2019, in replying to a follow-up email from Mr. Adler, Ms. Trachta stated, "I hope to have more feedback for you in a few days." [21] On July 31, 2019, Ms. Trachta advised Ms. Adler by email that she had sent the permit application to Vancouver Coastal Health who in turn would be submitting it to the BC Liquor and Cannabis Regulation Branch. [22] On August 8, 2019, Ms. Trachta emailed Mr. Adler to update him on the status of the application. She advised him that Vancouver Coastal Health had not sent the application to the BC Liquor and Cannabis Regulation Branch and that Vancouver Coastal Health had no comments on it. She further advised him that because of the potential for odour, a site-specific permit was required from Metro Vancouver. [23] On August 9, 2019, Mr. Adler wrote the following in an email to Ms. Trachta: Thank you for the information. I truly appreciate your efforts. In our discussion on August 1, when we had discussed Vancouver Coastal Health, you clarified that the physical building aspect of the review is complete and that comments from other parties was what remained outstanding. Other than satisfying the Metro Vancouver air quality permitting requirement

as you mentioned in your email, specifically who's comments and what else is outstanding for the approval of our building permit? Ms. Trachta replied on August 13, 2019, in part: Just still working on all the steps that are needed. I'll get back to you as soon as possible. [24] On September 16, 2019, Mr. Adler emailed Ms. Trachta stating, in part: We believe that we have been very patient, especially when you consider that the City completed its review of the site and building permit application back in July, but for undefined and undisclosed requirements not related to the structure or site. We believe that it is only fair that you identify any and all outstanding requirements for the issuance of our greenhouse building permit. If there are no outstanding requirements please so indicate. [25] On September 23, 2019, Ms. Trachta sent Mr. Adler an email, stating, in part: As part of our review of your building permit application, we require you to clarify the intended use of the proposed structure. Please confirm which of the following represents the intended use of the proposed structure: (a) cultivation of medicinal cannabis; (b) cultivation of non-medical cannabis; or (c) cultivation of both medicinal and non-medicinal cannabis. [26] Mr. Adler replied on September 25, 2019: Thanks for your email. We had asked you to tell us of all of the outstanding/unresolved issues regarding

our permit. As you limit your inquiry to this one matter, we take It there are no other matters to resolve. Our intended use of the facility is for cultivation of agricultural crops, including the cultivation of cannabis, that could result in medicinal or non-medicinal end uses (there isn't such a thing as "cultivation of medicinal cannabis"), as permitted by Health Canada and another regulatory authorities. End uses of cannabis are not determined by cultivators. I am unaware that your inquiry is relevant to our permit application, but I've answered it. I understand the permit application is now perfected, so I look forward to issuance of the permit forthwith. As I'm sure you're aware, upon receipt of a perfected application, the permit sought must be issued by the municipality. As I'm also sure you're aware, unreasonable delay in Issuing a permit amounts to denial. I respectfully suggest the delay in process [sic] our application has long passed what could be called reasonable. I look forward to your reply by Friday next. [27] On September 30, 2019, Mr. Cooper advised Mr. Adler by letter that the building permit had been refused. This is the decision that is the subject matter of this appeal. The relevant part of that letter states: This letter is to inform you that, pursuant to the City's Building Regulation Bylaw No. 7230, the Building Inspector has refused to issue a

building permit for the proposed work contemplated in application number 19 860829 on the grounds that the provisions of Richmond Zoning Bylaw No. 8500, in effect at the time the application was submitted, did not permit the cultivation of non-medical cannabis inside structures constructed after July 13, 2018. The application will, therefore, be cancelled. [28] On December 10, 2019, Ms. English filed a petition seeking judicial review of Mr. Cooper's decision. In that petition, she sought the following relief: · a declaration that Richmond had unlawfully cancelled the building permit application; · an order quashing Mr. Cooper's decision cancelling that application; and · an order of mandamus compelling Mr. Cooper to issue the permit. [29] Exhibits attached to the affidavits Ms. English filed on the petition include documentation relating to both the 2018 Regulation and the 2019 Regulation. Richmond did not object to some of those documents and successfully objected to others. The chambers judge admitted the following documents over Richmond's objections: (1) An email sent on September 28, 2018, by Martin Collins, Director of Policy and Planning, Agricultural Land Commission, to Harnois Greenhouses, the firm retained by Ms. English to design her proposed greenhouse which states, in part: This is to confirm that metal screw pile or helical pliers are acceptable in-ground

supports for cannabis production greenhouses in the ALR in British Columbia. (2) A revised Agricultural Land Commission Information Bulletin dated May 8, 2019, and entitled "Cannabis Production in the ALR", which begins with the following: 1. SCOPE OF THIS INFORMATION BULLETIN This information bulletin provides guidance to assist in interpreting the Agricultural Land Commission Act, S.B.C. 2002, c. 36 (ALCA) and regulations in relation to cannabis production in the Agricultural Land Reserve (ALR). The ALCA and regulations will govern if inconsistent with this bulletin. Section 8 of the 2019 Regulation is set out under the heading "Local Government Authority To Prohibit", but nothing is said with respect to its interpretation. (3) A Ministry of Agriculture press release dated June 18, 2019, that reads, in part: Cannabis Production in the ALR: · Local and First Nations governments can prohibit cannabis production in the ALR within their communities, unless it is grown in ways that preserve the productive capacity of agricultural land. · A regulatory change provided authority to local and Indigenous governments to prohibit cement-based, industrial-style, cannabis-production bunkers on ALR land within their communities, while clarifying that cannabis production in the ALR cannot be prohibited if it is grown lawfully: o in an open field; o in a structure that has a soil base; o in a

structure that was either fully constructed or under construction, with required permits in place, prior to July 13, 2018; or o in an existing licensed operation. (4) A letter dated July 11, 2019, from W.H. Shoemaker, Deputy Minister of Agriculture, to Arjun Singh, President, Union of BC Municipalities ("UBCM"), written in response to a letter Mr. Singh had sent to the Minister of Forests, Lands, Natural Resource Operations & Rural Development regarding changes to the cannabis provisions of the Agricultural Land Reserve Use Regulation. That letter, which was obtained from the UBCM's website, states, in part: In July 2018, Government announced a change to the policy framework regarding cannabis production on the Agricultural Land Reserve (ALR). This change provided local and First Nation governments with the authority to prohibit cannabis production in the ALR within their communities, unless it is grown in ways that preserve the productive capacity of agricultural land, such as soil-based cannabis. This policy has not changed. The July 2018 regulatory change ensured that, effective immediately, local and First Nation governments had the authority to prohibit cement-based cannabis-production facilities on ALR land within their communities, while clarifying that cannabis production in the ALR cannot be prohibited if grown lawfully: o In an open field; o In a structure that has a

soil base; o In a structure that was either fully constructed or under construction, with required permits in place, prior to July 13, 2018, or o In an existing licensed operation. While the February 22, 2019 regulatory change did not reflect a change in Government policy, it impacted ALC's operational policy in relation to cannabis production applications in the ALR. (5) A letter dated August 28, 2019 from Shannon Lambie, Regional Planner, Agricultural Land Commission, to Barry Konkin, Manager, Policy Planning, Planning and Development Division, City of Richmond. That letter provided Richmond with comments on amendments it proposed to make to its bylaws and official community plan in light of the 2019 Regulation. In describing Richmond's proposed amendments under the heading "Current Proposal", the letter states, in part: Additionally, a new section regulating cannabis in the ALR states the only permitted methods of cannabis production and cultivation are: · Outdoors in a field, or inside a structure that has a base consisting entirely of soil that meets those conditions set out in s. 8(2) of the ALR Use Regulations; or · Inside an existing building or structure (or building under construction) previously used for the purpose of growing crops. Under the heading "ALC Staff Response", the letter states, in part: Due to the February 22, 2019 amendments to the ALC Use Regulation

30[/]2019, local governments now have the authority to prohibit all cannabis production facilities except: · cannabis grown outdoors, · or inside a structure that has a base consisting entirely of soil, · or a pre-existing structure that was constructed for the purpose of growing crops inside of it. Chambers Judge's Reasons (2020 BCSC 1642) [30] The chambers judge dealt first with Richmond's objections to the admissibility of the extrinsic evidence tendered by Ms. English (at paras. 33-43). As indicated above, he admitted some documents and excluded others. [31] Next, relying on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, the judge determined that the standard of review was reasonableness. In doing so, he rejected Ms. English's submission that the correctness standard applied (at para. 61). [32] The judge rejected Richmond's submission that Mr. Cooper had not provided reasons for refusing the permit. He held that, "although terse", those reasons were in the September 30, 2019 letter (at para. 70). Based on the reference in that letter to July 13, 2018, the judge inferred Mr. Cooper was aware of the 2019 Regulation and had interpreted it as not preventing local governments from prohibiting the production of cannabis in any structure built after that date (at paras. 79-80). [33] Richmond contended that s. 8 should be interpreted

as creating two categories of cannabis production that cannot be prohibited by local government. It argued that the words "subject to" in s. 8(1)(b) are restrictive and make that provision subordinate to s. 8(2). Ms. English contended s. 8 creates three categories of cannabis production that cannot be prohibited. Her position was that the phrase "subject to" are additive. After expressing the view that the drafting of s. 8 could have been clearer, the judge stated: [95] Although in my view Ms. English's interpretation of this section is reasonable, I am unable to find, with reference to the words of the regulation alone, that the Building Inspector's interpretation, as was suggested by counsel for the City, is obviously wrong. As a result, it is necessary to consider the context and expressions of the legislative purpose of s. 8. [34] The judge then turned to and considered the extrinsic evidence he had admitted. Giving weight to the Ministry of Agriculture's press release and the letter written by the Deputy Minister of Agriculture, the judge held that Mr. Cooper's interpretation of the 2019 Regulation was unreasonable: [105] I conclude that the interplay of text, context, and purpose of s. 8 leaves room for a single reasonable interpretation of this statutory provision, or an aspect of this statutory provision. I conclude that this is a case in which the legislature [sic]

made a clear choice in enacting ss. 4 and 8(1)(b) of the 2019 ALR Regulation. In particular, at the time that the 2019 Application was submitted, ss. 4 and 8(1)(b) prevented municipal governments from prohibiting, by bylaw, the production of cannabis inside a structure with a base consisting entirely of soil, regardless of when the structure is constructed. [106] The relevant Zoning Bylaw provisions, which provide that the cultivation of non-medical and medical cannabis are not permitted uses on lands zoned AG1, are inconsistent with the limitations on the City's bylaw making power set out in s. 8 of the 2019 ALR Regulation. For that reason, pursuant to s. 46 of ALCA, the Zoning Bylaw is of no force and effect to the extent of this inconsistency. [106] It follows, that the interpretation of s. 8(1)(b) of the 2019 ALR Regulation adopted by the Building Inspector, which I find was central to the Decision, was unreasonable, and therefore that the Building Inspector committed reviewable error. [Emphasis added.] [35] Next, the judge rejected Ms. English's argument that Richmond had acted in bad faith in refusing the permit. He found that she had presented "insufficient evidence [to prove] that the City had an ulterior or improper purpose in refusing the 2019 Application" (at para. 114). [36] Last, the judge addressed Ms. English's argument that he should order the issuance of the

permit rather than remit the permit application for reconsideration. In opposing that order, Richmond submitted Mr. Cooper should have the opportunity to consider whether the proposed greenhouse fell within the soil-based exception in s. 8(1)(b) of the 2019 Regulation. Richmond argued there were several potential interpretations of that provision and that it was not the court's role to choose one of them. [37] In rejecting Richmond's argument, the judge stated: [122] Ms. English contends that none of the affidavits that the City filed in response to this application raise any outstanding technical considerations. Having reviewed the City's affidavits, I agree. The record before me establishes that the City's only reason for refusing the 2019 Application was its interpretation of s. 8 of the 2019 ALR Regulation, being that only soil-based structures constructed prior to July 13, 2018, could not be prohibited. [38] The judge found the unreasonable interpretation of the 2019 Regulation to have been the only reason the permit was refused and, further, that no useful purpose would be served by giving Richmond another "kick at the can". In rejecting Richmond's argument that the matter should be remitted to determine whether the proposed greenhouse was soil-based, the judge relied on the email Mr. Collins sent to Harnois Greenhouses in which Mr. Collins stated that screw piles or

helical piers are acceptable in-ground supports for cannabis greenhouses (at paras. 114, 122, 128, 134, 140, 142). [39] In the result, the judge granted Ms. English the following relief (at para. 144): · a declaration that Richmond had unreasonably cancelled the building permit application; · an order quashing Mr. Cooper's decision cancelling that application; and · an order of mandamus compelling Richmond to issue the permit. [40] The operative terms of the formal order entered to give effect to the judge's reasons read as follows: THIS COURT ORDERS AND DECLARES that: 1. The respondent, the City of Richmond, unreasonably cancelled building permit application No. 19 860829 submitted by the petitioner on May 6, 2019; 2. The decision of James Cooper in his capacity as Director of Building Approvals for the City of Richmond made on September 30, 2019 cancelling building permit application No. 19 860829 is quashed; 3. The City of Richmond issue building permit No. 19 860829; and 4. The City of Richmond shall pay costs to the petitioner at Scale B. Post-Judgment Developments [41] Ms. English has filed an affidavit sworn by Mr. Adler in support of her application to have this appeal dismissed as moot. The facts set out in that affidavit are not in dispute. [42] On November 17, 2020, two weeks after the chambers judge released his reasons for judgment, Richmond issued Ms. English a

building permit. That permit stated it would expire on May 16, 2021, i.e., in six months, "if no construction activity". The permit also stated it had been issued "in accordance [with] the Supreme Court of British Columbia Order dated Nov 3, 2020 in Action No. S1913978." Section 5.10.1(a) of Richmond's Building Regulation Bylaw No. 7230 stipulated that a building permit would expire if "construction has not commenced within 180 days of the date the permit was issued". [43] On November 24, 2020, Mr. Cooper and Ms. Trachta mailed a copy of the permit to Ms. English and Mr. Adler. Their covering letter included the following: This letter is to advise you that in accordance with Supreme Court of British Columbia Order dated November 3, 2020 in English v. Richmond (City), 2020 BCSC 1642 (Action No. S1913978), building permit no. 19 860829 is issued. Please find enclosed a copy of the building permit. Please be advised that this matter is currently in the appeal period and that any work undertaken under the permit is at the risk of the applicant, occupier or owner. Please note that construction must be undertaken by a General Contractor holding a City of Richmond business license. Appointment of the licensed General Contractor is required prior to request for inspections. Richmond filed its notice of appeal on November 30, 2020. [44] Ms. English and Mr. Adler objected to the permit

being backdated to November 17, 2020, and requested information with respect to the requirement that construction be performed by a general contractor. Mr. Cooper and Ms. Trachta responded to that enquiry by letter dated February 3, 2021. They enclosed a new building permit issued on November 24, 2020, which would expire on May 23, 2021, "if no construction activity". They also provided clarification with respect to the need for a general contractor to hold a Richmond business licence. [45] To avoid the permit expiring, Ms. English and Mr. Adler undertook preliminary construction activities on the property. During the week of February 1, 2021, they installed a sediment fence which Richmond inspected and approved. On March 12, 2021, they installed five foundation screw piles. Grounds of Appeal [46] In its factum, Richmond alleges that: (a) The chambers judge erred in finding that the 2019 ALR Regulation had not been reasonably interpreted by the Building Inspector as prohibiting structures in the ALR from being used for cannabis production if they were not constructed or under construction before July 13, 2018 including by relying on extrinsic evidence filed by the respondent that was irrelevant to the Building Inspector's interpretation of the 2019 ALR Regulation. (b) The chambers judge erred in finding that the respondent was entitled to an order of mandamus compelling the

Building Inspector to issue the building permit to the respondent including in failing to find that the proposed structure did not have a "base consisting entirely of soil" and so was not one in which cannabis could be produced in accordance with s. 8(1)(b) of the 2019 ALR Regulation. Analysis Mootness [47] Ms. English contends there is no longer a live dispute between the parties because Richmond has issued the building permit and construction of the greenhouse has started. She notes that she was required to commence construction to prevent the permit from expiring. She cites three cases in support of her argument. However, we find them to be distinguishable on their facts. [48] In 694285 B.C. Ltd. v. Capital Regional District, 2008 BCCA 467, 51 M.P.L.R. (4th) 189, the Regional District withheld building permits on the basis that the landowner had to comply with a bylaw that required a development permit. That bylaw was passed after the application for the building permits had been submitted. The landowner applied for a declaration that a development permit was not required in the circumstances by reasons of a provision in the Local Government Act, R.S.B.C. 1996, c.

323. A chambers judge dismissed that application and the landowner appealed. However, the landowner subsequently obtained a development permit. This Court declined to hear the appeal because the Regional District no longer had a basis on which to refuse the building permits. In other words, there was no longer a dispute between the parties concerning either the building permits or the development permit. [49] In Campbell v. British Columbia (Forests and Range), 2012 BCCA 274, 323 B.C.A.C. 157, the issue was whether the Minister of Forests and Range owed a duty to a First Nation to consult with respect to the issuance of a timber sale licence. The First Nation applied for judicial review of the issuance of the licence. A chambers judge dismissed that application and the First Nation appealed. However, all the trees covered by the licence were harvested before the appeal was heard. This Court declined to hear the appeal because "[t]he subject of the proceedings no longer exist[ed] and there [was] no continuing utility to the appeal" (at para. 16). [50] Last, in Norman v. Port Moody (City) (1996), 84 B.C.A.C. 146, a Supreme Court judge set aside a bylaw based on Port Moody's failure to provide proper disclosure. Port Moody appealed. However, before the appeal was heard it passed another bylaw dealing with the same subject matter. This Court declined to hear the appeal as its

outcome would have no practical effect. The same cannot be said of the case at bar. [51] That Richmond issued the building permit in compliance with the chambers judge's order did not bring the dispute between the parties to an end. By virtue of s. 5.12 of Building Regulation Bylaw No. 7230, Richmond has authority to revoke a building permit for a number of reasons. The relevant part of that provision reads: 5.12 Revocation of Permits 5.12.1 The building inspector may revoke a building permit where in the inspector's opinion: (a) tests reveal that materials, devices, methods, structural assemblies or foundation conditions contravene: (i) the building code, or (ii) the provisions of this bylaw; (b) all building permits required under this bylaw have not been obtained; or (c) there is a violation of: (i) a condition under which the permit was issued, or (ii) a requirement of the building code ... or this or any other applicable bylaws of the City, or applicable Provincial statutes. [Emphasis added.] Accordingly, should this Court determine that the chambers judge erred in finding Mr. Cooper's interpretation of the 2019 Regulation to be unreasonable, then the greenhouse Ms. English intends to build would violate s. 5.12.1 of Zoning Bylaw No. 8500 and Richmond would have the right to revoke the building permit. [52] As evinced by Jardins Taché v. Enterprises Daskin, [1974] S.C.R.

2, a person who engages in construction in the face of a challenge to their building permit runs the risk that the permit may ultimately be found to be invalid. In that case, the City of Hull issued permits to a developer to build two ten-storey apartment buildings. The same day that project was announced, a non-profit association called on the city to cancel the permits on the basis that the land in question was zoned for single-family dwellings only. The city did not accede to that demand because it considered the land to be within an area zoned for commercial activity. The association and a person who owned a home in the area applied to the Superior Court for a declaration that the permits were invalid. That application was granted and the developer was ordered to return the site to its pre-construction condition. The Court of Appeal allowed the developer's appeal. On further appeal, the Supreme Court of Canada held that the permits were invalid. In restoring the order to return the site to its pre-construction condition, Justice Pigeon said this (at p. 17): It can certainly not be contended here that the application for an injunction was not made with all due diligence. The record shows that a protest was served the same day that the Dasken project was announced. Proceedings were commenced fifteen days later. An interlocutory injunction was applied for and, on November 19,

the parties accepted the judge's suggestion that the action and the motion be heard simultaneously on December 1. In these circumstances the extent of the loss involved in the demolition order depends largely on the decision of the owner to take the risk of going ahead with the work after the protest, the institution of proceedings and the motion for an injunction. While I am in agreement with the trial judge, I would allow a period of six months, instead of three, for the demolition order to be carried out. [Emphasis added.] [53] Last, we note that in Philipchalk v. Victoria (City) (1980), 20 B.C.L.R. 113 (C.A.), this Court allowed an appeal by the city from an order of mandamus that required it to issue a building permit. The city had issued that permit the day after the mandamus order was granted. [54] It is for these reasons that we declined to dismiss this appeal as moot. Standard of Review [55] The correctness standard applies on this Court's review of the chambers judge's review of Mr. Cooper's decision. Our task is to "step into the shoes" of that judge and determine whether he identified the correct standard of review and applied that standard correctly: Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 at para. 26, 21 B.C.L.R. (6th) 306, leave to appeal ref'd [2019] S.C.C.A. No.

108. Although the chambers judge's reasoning may be instructive, his decision is not entitled to deference: Yu v. Richmond (City), 2021 BCCA 226 at para. 45. [56] Having regard to the Supreme Court of Canada's judgment in Vavilov, the parties agree the reasonableness standard applies to the review of Mr. Cooper's decision. That is the standard this Court recently applied in Yu, a case involving judicial review of a decision by Richmond that building permits had expired under its bylaws (at para. 47). [57] It is common ground that Mr. Cooper's decision to refuse the building permit was based on his interpretation of s. 8 of 2019 Regulation as creating only two categories of cannabis production that cannot be prohibited by a local government on land within the ALR: (i) production outdoors in fields; and (ii) production in structures that were constructed or under construction before July 13, 2018. Accordingly, the issue on this appeal is whether that interpretation is reasonable having regard to the framework for review set out in Vavilov. In this Court's recent decision in Yu, Justice MacKenzie described that framework as follows: [53] While administrative decision makers may have considerable discretion in making a particular decision, the decision must ultimately comply with the language, rationale, and purview of the statutory scheme under which it is made: Vavilov at paras.

108, 110. For questions of statutory interpretation, the "modern principle"--that the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of the legislative body--applies. In some circumstances, this may lead to a conclusion that there is only one reasonable interpretation of the provision: Vavilov at para.

124. However, courts should not undertake a de novo analysis or measure the decision maker's interpretation against the one the court would have reached: Vavilov at paras. 116-118, 120-121, 124; [1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101] at para.

39. Where an administrative decision maker has not provided explicit reasons for interpreting a provision in a particular way, the reviewing court should attempt to discern the interpretation adopted from the record and determine whether it is reasonable: Vavilov at para. 123. [54] In all cases, regardless of whether or not reasons are available, the challenging party has the onus of demonstrating the decision is unreasonable: Vavilov at para. 100. [55] To summarize the applicable Vavilov principles: · Reasonableness review is concerned with both the process of arriving at the decision and the outcome. · The burden is on the party seeking judicial review of the decision to demonstrate that it is unreasonable. · In circumstances where procedural fairness does not require reasons be provided, the reviewing court should review the record to attempt to discern the rationale for the decision. If it is possible to determine the rationale, the reviewing court should consider, among other potentially relevant factors, whether the reasoning is internally rational and whether it is justifiable in light of the relevant factual and legal constraints. · If reasons are not required and it is not possible to determine the rationale for the decision from the record, the reviewing court should consider whether the outcome of the decision is defensible in light of the facts and the law. · For

questions of statutory interpretation, reviewing courts should consider whether the decision maker's interpretation is reasonable in light of the words of the provision in their context, the scheme and object of the enactment, and the intention of the legislative body. Reviewing courts should refrain from conducting a de novo interpretation and measuring the decision maker's interpretation against it, even when the decision maker has not provided reasons for its interpretation. Instead, the focus should be on whether the decision maker's interpretation has been shown to be unreasonable. [Emphasis added.] Reasonableness of Mr. Cooper's Decision to Refuse the Permit [58] Mr. Cooper did not explain how he came to interpret the cut-off date in the 2019 Regulation as applying to soil-based structures. It is, therefore, necessary for this Court to determine whether that provision could reasonably be interpreted in that way: 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101 at para. 84, 445 D.L.R. (4th) 448. Reasonableness Review and Statutory Interpretation [59] Vavilov tells us that in judicial review cases, "what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review" (at paras. 90, 105, emphasis added). Contextual constraints will "dictate the limits and contours of

the space in which the decision maker may act and the types of solutions it may adopt" (at para. 90). See also, 1193652 B.C. Ltd. v. New Westminster (City), 2021 BCCA 176 at para. 60. [60] A decision's legal and factual context includes: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. [Emphasis added.] Vavilov at para.

106. See also, Yu at paras. 51-52. [61] Because administrative decision makers "receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision": Vavilov at para. 108 (emphasis added). Decision makers are not "permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures" (at para. 108). While they "may have considerable discretion in making a particular decision, that decision must ultimately comply 'with the rationale and purview of the statutory scheme under which it is adopted'" (at para. 108, citing Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at paras. 15, 25-28, [2012] 1 S.C.R. 5). [62] Consequently, an exercise of discretion "must accord with the purposes for which it was given" and "comport with any specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion": Vavilov at para.

108. Administrative decision makers must not "interpret the scope of [their] own authority beyond what the legislature intended" (at para. 109). They cannot "arrogate powers to themselves that they were never intended to have" (at para. 109). Nor are they entitled to issue a decision that "strays beyond the limits set by the statutory language [they are] interpreting" (at para. 110). [63] Given these limitations, administrative decision makers that are "constrained by specifically worded statutory provisions may find their decisions set aside if they ignore [those] constraints": Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at para. 33, leave to appeal granted, [2020] S.C.C.A. No.

392. Paying "mere lip service to text, context and purpose rather than conducting a genuine analysis" may lead to a quashing of the decision (at para. 42). "The same fate will befall an analysis that is expedient, result-oriented or skewed to advance a policy extraneous to the legislation" (at para. 42). [64] Vavilov emphasizes that in conducting a reasonableness review of a decision that relies on statutory interpretation, the "reviewing court does not undertake a de novo analysis of the question" or "ask itself what the correct decision would have been" (at para. 116, citing Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 50, and paras. 75, 83, 124, 289, 306, [2003] 1 S.C.R. 247). This approach applies equally when the interpretation of a regulation is being reviewed, as the principles of statutory interpretation apply to regulations: Amaratunga v. Northwest Atlantic Fisheries Organization, 2013 SCC 66 at para. 36, [2013] 3 S.C.R. 866; Wood v. Schaeffer, 2013 SCC 71 at para. 33, [2013] 3 S.C.R. 1053. [65] In discussing how a reviewing court should approach an issue of statutory interpretation, Justice Stratas said this in Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156: [20] even though reviewing courts are accustomed in other contexts to interpret legislative provisions themselves, when conducting reasonableness review of administrative interpretations

they should avoid that. Reviewing courts must not "ask how they themselves would have resolved [the] issue", "undertake a de novo analysis", "ask itself what the correct decision would have been" or "[decide] the issue themselves" . In other words, reviewing courts must not "make [their] own yardstick and then use that yardstick to measure what the administrator did" . Instead, reviewing courts must exercise "judicial restraint" and respect "the distinct role of administrative decision-makers" . They are to do this by examining the administrator's reasons with "respectful attention" and by "seeking to understand the reasoning process" [Internal references omitted.] See also: Yu at para. 53; Highlands District Community Association v. British Columbia (Attorney General), 2021 BCCA 232 at para. 29, leave to appeal ref'd [2021] S.C.C.A. No. 259. [66] However, a reviewing court has a positive obligation to determine whether the interpretation adopted by the decision maker respects its relevant legal constraints. To that end, we agree with Stratas J.A.'s comment in Mason that the admonition against de novo statutory analysis does not preclude a reviewing court from conducting a preliminary analysis of the text, context and purpose of contested legislation (including a regulation), to understand the "lay of the land" before examining the decision maker's reasons and the outcome (at

para. 17). [67] The reason for doing so is not to engage in statutory analysis as a court of first instance and then use the arrived‑at interpretation as a benchmark against which to measure the correctness of the administrator's decision. Rather, the consideration of text, context and purpose, with reference to the "modern principle" of statutory interpretation, is done to the extent necessary to enable an informed assessment of whether the applicant for judicial review has shown that the interpretation adopted by the decision maker is unreasonable in light of its contextual constraints. If the impugned interpretation is not justified in light of the text, context and purpose of the provision or scheme at issue, it is unreasonable, even though it may be a plausible interpretive option on the face of the wording alone: Vavilov at paras. 110, 116-118, 121. [68] In its factum, Richmond submits that once the judge found that the wording of s. 8 of the 2019 Regulation could support Mr. Cooper's interpretation, his decision ought not to have been disturbed. We disagree. In our view, Vavilov's reasonableness analysis is more rigorous than that. [69] The "merits of an administrative decision maker's interpretation of a statutory provision must be consistent with the text, context and purpose of the provision": Vavilov at para. 120 (emphasis added). A reviewing court may intervene for

unreasonableness when the decision maker "fails entirely to consider a pertinent aspect of [a provision's] text, context or purpose" (at para. 122). Or, it may become clear in the course of a reasonableness review that "the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue", and it is not the interpretation adopted by the decision maker (at para. 124). See also, Manitoba Government and General Employees' Union v. The Minister of Finance for the Government of Manitoba, The Honourable Scott Fielding, 2021 MBCA 36 at paras. 42, 59. [70] Whether the decision maker consists of a specialized tribunal, independent regulatory body, minister or front‑line official, their "task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying [their] particular insight into the statutory scheme at issue": Vavilov at para. 121 (emphasis added). In turn, the role of the reviewing court is to examine the decision maker's reasoning, including the interpretation, and the outcome, and determine whether it "bears the hallmarks of reasonableness -- justification, transparency and intelligibility -- and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision": Vavilov at para.

99. [71] In Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, 441 D.L.R. (4th) 269, released the day after Vavilov, the majority affirmed that assessing consistency between the decision maker's interpretation of a provision and its text, context and purpose forms an integral part of the reasonableness review. [72] In that case, the administrative official was tasked with interpreting a provision of the Canada Labour Code, R.S.C. 1985, c. L‑2. In assessing the reasonableness of the adopted interpretation, Justice Rowe considered it necessary to "review the reasons given by the administrative decision maker and determine whether the decision [was] based on an internally coherent chain of reasoning and [was] justified in light of the relevant legal and factual constraints" (at paras. 2, 32). He noted that: [42] [b]ecause those who draft statutes expect that the statute's meaning will be discerned by looking to the text, context and purpose, a reasonable interpretation must have regard to these elements -- whether it is the court or an administrative decision maker tasked with the interpretative exercise (Vavilov, at para. 118). In addition to being harmonious with the text, context and purpose, a reasonable interpretation should conform to any interpretative constraints in the governing statutory scheme, as well as interpretative rules arising from other sources

of law. [Emphasis added.] [73] In Manitoba Government, the Court noted that "[a]cademic discussion of Vavilov consistently confirms that Vavilov has set a slightly higher bar for administrative decision makers than previously existed, by requiring that the decision be justified, rather than merely falling within a range of reasonable outcomes " (at para. 39, emphasis added). That is consistent with our own review of the commentary. See, for example, associate professor Richard Stacey's article entitled "A Unified Model of Public Law: Charter Values and Reasonableness Review in Canada" (2021) 71:3 U.T.L.J.

338. In his view, the Vavilov majority has "[r]eject[ed] the idea that administrative decision makers need only make a decision that is within a range of reasonable outcomes " (at 340). Instead, the reasonableness standard mandates a closer, potentially more incursive form of judicial review, "requir[ing] that courts defer only to a decision 'that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker'" (at 350-351, emphasis added). [74] We agree. Vavilov itself describes the reasonableness standard as "a robust form of review" (at para. 13). The standard remains inherently deferential. However, with the majority's recalibrated focus on "justification in administrative decision making" (at para. 2), and the importance of demonstrated consistency between the decision maker's statutory interpretation and the text, context and purpose of the governing provision and its scheme, an "inferior" interpretation is susceptible to being set aside for unreasonableness even though it may be plausible on the face of the enactment (at para. 121). [75] Although deferential, a reasonableness review is a qualitative exercise. In their concurring reasons, Justices Abella and Karakatsanis agree: [294] Deference, however, does not require reviewing courts to shirk their obligation to review the

decision. So long as they maintain a respectful attitude, frame the judicial review inquiry properly and demand compelling justification for quashing a decision, reviewing courts are entitled to meaningfully probe an administrative decision. A thorough evaluation by a reviewing court is not "disguised correctness review", as some have used the phrase. Deference, after all, stems from respect, not inattention to detail. [Emphasis added.] Admissibility of Extrinsic Material [76] That brings us to the methodology by which a reasonableness review is performed in a case involving statutory interpretation, including the consideration of material that was not before the decision maker. [77] In our view, there are circumstances in which a court may properly look beyond the material that was before the decision maker to perform its reasonableness review, including (but not limited to) the use of extrinsic aids when applying the modern principle of statutory construction. Among other things, extrinsic aids can play an important role in defining the purpose of a statutory provision or scheme: A law's purpose is often stated in the legislation, but it may also be ascertained by reference to extrinsic material such as Hansard and government publications . While such extrinsic material was at one time inadmissible to facilitate the determination of Parliament's purpose, it is now well

accepted that the legislative history, Parliamentary debates, and similar material may be quite properly considered as long as it is relevant and reliable and is not assigned undue weight [Emphasis added.] Reference re Firearms Act (Can.), 2000 SCC 31 at para. 17, [2000] 1 S.C.R. 783 (internal references omitted). See also: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paras. 31, 35; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 29, [2002] 2 S.C.R. 559. [78] In conducting his reasonableness review, the chambers judge admitted an informational bulletin issued by the Agricultural Land Commission ("ALC"); a news release from the Ministry of Agriculture; correspondence between the UBCM and the Deputy Minister of Agriculture; and correspondence between the ALC and Richmond's Manager of Policy Planning, Planning and Development Division. The judge admitted this evidence on the basis that it provided "relevant context" and would assist him in evaluating the reasonableness of Mr. Cooper's interpretation of the 2019 Regulation (at paras. 33-43). He relied on the documents principally to understand legislative purpose (at para. 104). [79] We see nothing in Vavilov that bars a court from admitting and relying upon material not before the decision maker for the purpose of conducting a reasonableness review of a decision that engages statutory interpretation,

provided that its receipt complies with generally accepted admissibility principles. Indeed, we read the majority's decision as contemplating the admission of material that extends beyond the four corners of the decision maker's record: [94] The reviewing court must also read the decision maker's reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker's work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker's reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well‑established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member. [Emphasis added.] [80] In their concurring reasons, Abella

and Karakatsanis JJ. explicitly endorse a "flexible approach" to supplementing a decision maker's reasons for the purpose of review (at para. 302). This includes the record before the decision maker and "other context" (at para. 302). [81] Vavilov defines the legal context of an administrative decision to include constraints imposed by the governing statutory scheme and the principles of statutory interpretation (at para. 106). It is well‑settled under the modern approach to statutory interpretation that extrinsic aids have a role to play in statutory analysis. They can shed important informative light on the meaning of a term used by the legislature, or the purpose or intention of an impugned provision and its surrounding scheme. The use of extrinsic aids is subsumed into the modern principle and, in our view, those aids logically form part of an administrative decision's legal context. [82] Ruth Sullivan makes this point in Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014) at 657-658. She states that extrinsic aids are appropriate to the interpretation exercise: because they are part of the legal context; because they offer evidence of external context; because they are a source of authoritative opinion about the meaning or purpose of legislation; because they are part of the understanding on which legislation was enacted Extrinsic materials often

form part of the legal context in which legislation is drafted and operates. The courts are so accustomed to working with some of these materials that they do not think of them as extrinsic aids. [Emphasis added.] [83] An absolute prohibition on the use of material not before the decision maker, including extrinsic aids, would deprive the reviewing court of the fullness of the decision's legal or factual context, including potential constraints that heavily condition the decision maker's exercise of authority. We consider that situation inconsistent with the form of reasonableness review established by Vavilov. It would also mean that in cases such as this one, where an interpretation is discernible but the decision maker did not explain their path of reasoning, the reviewing court's ability to assess an interpretation's consistency with text, context and purpose may be substantially impaired. A prohibition against reaching beyond the material that was before the decision maker might also incentivize administrative officials to limit their interpretive consultation or analysis, and to keep their records small, so as to immunize themselves from meaningful review. [84] Vavilov makes it clear that "the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision" (at para. 120). It is the "responsibility" of the decision

maker to "discern meaning and legislative intent" (at para. 121). A failure to "consider a pertinent aspect of [a provision's] text, context or purpose" may result in an indefensible decision (at para. 122). The "administrative decision must be consistent with principles of statutory interpretation": Ontario Nurse's Association v. Participating Nursing Homes, 2021 ONCA 148 at para. 45, 154 O.R. (3d) 225 (emphasis added). We struggle to understand how a reviewing court can properly determine whether the decision maker has met their interpretive responsibility, or has failed to consider a material aspect of a provision's text, context or purpose, without access to potentially critical pieces of the relevant legal context. [85] Depending on the nature and extent of the material before the decision maker, the comprehensiveness of the reasons provided and the complexity of the statutory analysis, it may be necessary for a reviewing court to admit material that supplements the decision maker's record, including extrinsic aids, to properly fulfill its role. Where it does so, the court remains obliged to respect the inherently deferential nature of the reasonableness standard and to "pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker": Vavilov at para. 124. [86] In Air Canada v. British Columbia (Workers'

Compensation Appeal Tribunal), 2018 BCCA 387, 15 B.C.L.R. (6th) 238, Justice Groberman explained that generally, a reviewing court concerns itself only with evidence that was before the decision maker. However, there are recognized exceptions: [36] Courts are generally required to defer to a tribunal's expertise, not ignore it. For that reason, there must be mechanisms available that allow a court to gain an understanding of the foundation from which a tribunal approaches problems in front of it. Appropriately circumscribed affidavits explaining that foundation can be proper on judicial review. [37] A court must also be allowed to fully consider the question of whether the proceedings of a tribunal met standards of procedural fairness. Evidence that casts light on the procedures followed by the tribunal will, therefore, generally be admissible. [38] In [Dane Developments Ltd. v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCSC 1663], it was suggested that there is a general rule that only evidence that was before the tribunal can be considered by the reviewing court, but that the general rule admits of a number of exceptions. The judgment then attempted to set out the exceptions, one of which is "general background information". While there is some utility to this approach, it should be followed cautiously. I am not convinced that it is feasible to

fully categorize exceptions to the general rule. Further, whether evidence falling within a particular category is admissible or inadmissible will often depend on context. A principled approach, therefore, is to be preferred to a purely categorical one. [39] In determining whether an affidavit is admissible on judicial review, the key question is whether the admission of the evidence is consistent with the limited supervisory jurisdiction of the court. Evidence that was before the tribunal is clearly admissible before the court. Evidence that casts light on the manner in which the tribunal made its decision will also be admissible within tight limits. Factual evidence setting out the procedures followed by the tribunal, or providing information showing that the tribunal was not impartial will also be admissible. [40] With respect to "general background information", such information will be admissible only if it is confined to what the tribunal actually knew or acted upon. Thus, an affidavit may educate the court on matters that are within the specialized expertise of a tribunal, or which form the common understanding of those who operate in a particular field. Courts must be vigilant, however, not to accept affidavits that simply seek to shore up weaknesses in the record, or serve to provide a revisionist version of the tribunal's reasons. [Emphasis added.] [87] Applying this

framework, we are of the view that admitting extrinsic aids under the modern approach to statutory interpretation constitutes a further and principled exception to the general rule that a reviewing court is restricted to the material before the decision maker. Doing so does not offend the "limited supervisory jurisdiction of the court". [88] Of course, as noted in Air Canada, admission is not automatic. Rather, the admissibility of material not before the decision maker--whether in the form of an extrinsic aid for interpretive purposes or otherwise--is determined case-by-case on a principled basis. A consideration of relevance and reliability will necessarily inform the analysis. And, once admitted, any such material cannot be assigned undue weight. [89] The approach taken by the chambers judge to better understand the context of Mr. Cooper's decision and the purpose of the 2019 Regulation is not anomalous. [90] In Subramaniam v. Canada (Citizenship and Immigration), 2020 FCA 202, for example, a judge reviewed an immigration officer's refusal to process an application for permanent residence. The refusal was grounded in the officer's interpretation of a provision in the Immigration and Refugee Protection Act, S.C. 2001, c.

27. The judge dismissed the application for judicial review, concluding that the officer's interpretation was reasonable. Applying Vavilov, the Federal Court of Appeal came to the same conclusion. During its analysis, the appeal court considered "parliamentary debates surrounding the adoption of [the] legislation and various interpretive tools released by the government" (at para. 26). This included a "Legislative Summary" that was adduced by one of the parties for the purpose of judicial review. It does not appear, at least from the reported decisions, that the Legislative Summary formed part of the decision maker's record. See Subramaniam v. Canada (Citizenship and Immigration), 2019 FC 808 at para. 23. [91] In Hawkes v. Max Aicher (North America) Limited, 2021 ONSC 4290, the Ontario Labour Relations Board determined that Mr. Hawkes was not entitled to severance pay from his former employer. In reaching that conclusion, the Board was required to interpret a provision of the Employment Standards Act, 2000, S.O. 2000, c.

41. Mr. Hawkes sought judicial review. The sole issue before the Ontario Superior Court of Justice (Divisional Court) was the reasonableness of the Board's interpretation. In finding the interpretation unreasonable, the Divisional Court applied the modern principle of statutory interpretation (at para. 17). It concluded that the Board's interpretation of the contested provision fell "well short of the mandate of the modern principle" (at para. 24). The Board "reached a conclusion that is inconsistent with the text, context, and purpose of the provision" (at para. 24). In arriving at this determination, the Court considered other statutes, a constitutional law text and prior related jurisprudence--none of which formed part of the Board's analysis (at paras. 25-28). [92] Highlands District involved judicial review of a decision by a mines inspector to issue a permit to operate a rock quarry. The question on appeal was whether the decision was unreasonable because the inspector did not turn his mind to the impacts of the proposed quarry on climate change. Although the reasonableness review did not focus on statutory interpretation, per se, it is clear from the reasons of Justice Fisher, writing for the Court, that both the reviewing judge at first instance and this Court assessed the reasonableness of the decision relying on a "broader statutory context" than did the inspector and

considered legislative provisions or schemes addressing the same type of subject matter that were not before the inspector (at paras. 42-47). [93] This Court took a similar approach in Team Transport Services Ltd. v. Unifor, Local No. VCTA, 2021 BCCA 211. That case involved judicial review of a decision by the Labour Relations Board of British Columbia to grant a common employer declaration. The Board's interpretation of a provision of the Labour Relations Code, R.S.B.C. 1996, c. 244, played a central role in the reasonableness review. In its review of the interpretation, the Court referred to the Uniform Law Conference of Canada's Drafting Conventions (at para. 42). There is no indication that this extrinsic aid was considered by the decision maker. [94] These examples, not meant to be exhaustive, show that in conducting a reasonableness review, courts do sometimes go beyond material that was before the decision maker to assess consistency between the adopted statutory interpretation and the text, context and purpose of the governing provision or scheme. The fact that the decision maker is not shown to have considered that same material does not stand as a bar to use of the material. [95] We consider the following pieces of the evidence admitted by the judge in this case to have been properly before him with respect to the interpretation of the 2019 Regulation: (1) the

information bulletin released by the ALC; (2) the Ministry of Agriculture press release; (3) the correspondence between UBCM and the Deputy Minister of Agriculture; and (4) the correspondence between the ALC and Richmond's Planning and Development Division. In our view, these documents can reasonably be said to have formed part of the legal and factual context of Mr. Cooper's decision. We acknowledge that press releases can raise particular concerns with respect to reliability, but those concerns do not arise in this case. [96] The information bulletin was initially issued by the ALC in August 2018. A revised version followed in May 2019. The bulletin was issued to provide "guidance to assist in interpreting the Agricultural Land Commission Act and regulations in relation to cannabis production in the Agricultural Land Reserve " (internal references omitted, emphasis added). This included restrictions governing the "construction of structures intended to be used for cannabis production". The ALC issued the bulletin as "an agent of the government", charged with "protecting and enhancing the use of the agricultural land reserve for farm use": ALCA, ss. 6(2)(b), 7. The bulletin was publicly available through the ALC's website. [97] The press release issued by the Ministry of Agriculture on June 18, 2019, was for the purpose of informing the public that recent changes to the ALR

regulations were intended to give local and Indigenous governments the authority to prohibit "cement-based, industrial-style, cannabis production bunkers" and to "clarify" that there were several ways in which cannabis could be lawfully grown in the ALR, including "in a structure that has a soil base" and "in a structure that was either fully constructed or under construction prior to July 13, 2018". [98] The letter from the Deputy Minister of Agriculture, dated July 11, 2019, was sent "on behalf of [the] Minister" and in response to a specific inquiry made by the President of the UBCM "on behalf of local governments". The letter explained the "purpose" of the 2019 Regulation and the fact that it "did not represent a shift in government policy." That policy contemplated cannabis production in the ALR if grown lawfully in: an open field, a structure that had a soil base, a structure that was either fully constructed or under construction prior to July 13, 2018, or in an existing licensed operation. An affidavit before the chambers judge confirmed that the Deputy Minister's letter was publicly available. It was posted on the UBCM's website, presumably for the purpose of making it available to local governments, whose authority to prohibit cannabis production is statutorily circumscribed by the provincial regulatory scheme. [99] We consider the information bulletin, press release,

and the letter from the Deputy Minister to have an institutional quality about them, such that it would not be inappropriate to view those documents as informative of government's objective in crafting and applying the 2019 Regulation. The content of the documents is clearly relevant to the interpretation of the regulation and, in our view, these materials were properly admitted as extrinsic aids under the modern approach to statutory construction in the context of a case in which the administrative decision maker provided only a conclusory statement in support of his interpretation. [100] We would characterize the documents as "administrative interpretation" aids, defined in Sullivan on the Construction of Statutes as "interpretation given to legislation [or a regulation] by persons, other than judges, who are charged with the administration or enforcement of the legislation" (at 704). Their "admissibility is justified [under the modern principle] on the basis that the persons responsible for the administration of legislation are likely to have some insight into the operation of the legislative scheme" (at 704). [101] We are also satisfied that the correspondence between the ALC and Richmond's Planning and Development Division was properly before the chambers judge. It is admissible not as an extrinsic aid under the modern principle of statutory interpretation. Rather, this

letter formed part of the institutional context in which Mr. Cooper was operating at the time of his decision. Under the Vavilov framework, the "review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings" (at para. 91). [102] It is clear from the letter that the Policy Planning group with Richmond's Development and Planning Division reached out to the ALC for consultation in drafting bylaw amendments that would be impacted by the 2019 Regulation. In response to its request, Richmond received comments from the ALC that were specifically intended to "help ensure" any such amendments were consistent with the purposes of the 2019 Regulation. The letter is dated one month prior to Mr. Cooper's refusal of the building permit. In it, a Regional Planner with the ALC told Richmond that: Due to the February 22, 2019 amendments to the ALC Use Regulation 30[/]2019, local governments now have the authority to prohibit all cannabis production facilities except: · cannabis grown outdoors, · or inside a structure that has a base consisting entirely of soil, · or a pre‑existing structure that was constructed for the purpose of growing crops inside of it. [Emphasis added.] [103] At the time he refused the permit, Mr. Cooper was the Director of Building Approvals, which, like the policy group,

forms part of Richmond's Planning and Development Division. To not consider the letter from the ALC on grounds that Ms. English did not prove it was read by Mr. Cooper would artificially isolate Mr. Cooper and, importantly, his decision, from the institutional environment in which he operated at the material time. Reasonableness of Mr. Cooper's Interpretation [104] We are persuaded by Ms. English that Mr. Cooper's interpretation is unreasonable. [105] We accept that the wording of s. 8 of the 2019 Regulation is unclear. The chambers judge found that Mr. Cooper's construction of s. 8(1)(b), "with reference to the words alone", is not "obviously wrong" (at para. 95, emphasis added). We agree. [106] However, when the language of s. 8 is considered in its entirety, in context and with reference to the purpose of both the provision and its surrounding scheme, we come to the same conclusion as the chambers judge--namely, that the interplay between those elements leaves room for a single reasonable interpretation. We agree with the judge that when Mr. Cooper refused the building permit, the 2019 Regulation did not allow local governments to prohibit, on agricultural lands, "the production of cannabis inside a structure with a base consisting entirely of soil, regardless of when the structure [was] constructed" (at para. 105). [107] We will start with the structure and the text of s.

8(1) and (2), considered as a whole. [108] The first part of s. 8 identifies the forms of agricultural land use for producing cannabis that cannot be prohibited, namely, production "outdoors in a field" (s. 8(1)(a)) or "inside a structure that has a base consisting entirely of soil" (s. 8(1)(b)). [109] Section 8(2) follows and, in its substance, is appropriately characterized as a legacy clause. On its face, this section safeguards as "farm use" all structures used to produce cannabis that were constructed or under construction before July 13, 2018 (assuming the other requirements of the section are also met). This includes, presumably, structures that in contrast to s. 8(1)(b) do not have a "base consisting entirely of soil". [110] Incorporating the words "subject to subsection (2)" in s. 8(1)(b) qualifies the application of that section. Read as a whole, s. 8(1) stipulates that "[t]he use of agricultural land for producing cannabis lawfully may not be prohibited if the cannabis is produced (a) outdoors in a field, or (b) inside a structure that, subject to [the legacy clause], has a base consisting entirely of soil." The logical effect of the manner in which s. 8(1)(b) has been configured in the 2019 Regulation is to preserve, within that provision, the s. 8(2) time‑limited protection afforded to structures other than those with a "base consisting entirely of soil". [111] In

this sense, we agree with Ms. English that the words "subject to subsection (2)" are additive and, functionally, that they allow for a third category of cannabis production on agricultural lands that cannot be prohibited by local governments, namely, non-soil‑based structures that were constructed or under construction before July 13, 2018. [112] In our view, Mr. Cooper's interpretation of s. 8(1)(b) is fundamentally flawed. In particular, his interpretation ignores the latter half of that section and, importantly, its informative value in understanding the focus, the effect and the necessity of incorporating the words "subject to subsection (2)". [113] Section 8(1)(b) protects only soil‑based structures from prohibition. Section 8(2) is broader in scope and protects both soil‑based and other structures. On a plain reading, the words "subject to" in s. 8(1)(b) qualify the application of the provision by carving out, as an exception, the non-soil‑based structures allowed for in s. 8(2). The words harmonize the two provisions by ensuring that the legacy clause as it applies to non-soil‑based structures is not undermined or somehow rendered nugatory by the narrower scope of s. 8(1)(b). [114] Mr. Cooper's interpretation of the 2019 Regulation does not read s. 8(1)(b) and (2) harmoniously. To the contrary, the meaning he assigns to the words "subject to" renders the latter half of s. 8(1)(b) superfluous. It is a "well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage": R. v. Proulx, [2000] 1 S.C.R. 61 at para.

28. Furthermore, it is "presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functional whole": Sullivan on the Construction of Statutes at 337. [115] We are also of the view that Mr. Cooper's interpretation is not justifiable in light of s. 8 of the provincial Interpretation Act, R.S.B.C. 1996, c. 238, which supports a broad, remedial approach to statutory language. Instead, he has taken a narrow, textualist approach to the 2019 Regulation. [116] The adopted interpretation further does not accord with the implied exclusion rule of statutory interpretation. Had the legislature intended that after July 13, 2018, local governments would only be prohibited from preventing the use of agricultural lands for cannabis production that occurs "outdoors in a field", we would have expected the legislature to say precisely that. Or, alternatively, it would have stopped at s. 8(1)(a). The fact that s. 8(1)(b) is included in the 2019 Regulation strongly evinces an intention to allow for cannabis production on agricultural land in structures with a "base consisting entirely of soil" that are constructed after July 2018. [117] Mr. Cooper's interpretation is not consistent with the legislative purpose of s. 8, as revealed by the extrinsic aids that we say were properly before the chambers judge. Moreover, it runs contrary to

the interpretive guidance received by Richmond from the ALC when Richmond sought to redraft its bylaws to take into account the 2019 Regulation--guidance that formed part of the institutional context in which Mr. Cooper rendered his decision. [118] In championing Mr. Cooper's interpretation, Richmond points to the "previous iteration" of the 2019 Regulation. (We assume, from this, that Richmond agrees a statute or regulation's evolution may properly be looked to for assistance in conducting a reasonableness review, even though it was not shown to have been before the decision maker: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 60, [2017] 2 S.C.R. 795; R. v. Ulybel Enterprises Ltd., 2001 SCC 56 at para. 33, [2001] 2 S.C.R. 867.) Richmond acknowledges that the 2018 Regulation created three categories of cannabis production that were designated as farm use and could not be prohibited by a local government. In reducing those categories to two under the 2019 Regulation, Mr. Cooper is said to have given meaningful effect to the differences in wording and, in particular, to the incorporation of the words "subject to subsection (2)" in s. 8(1)(b). [119] We accept that under the modern principles of statutory interpretation, it is presumed that amendments to wording are purposeful: Sullivan on the Construction of Statutes at 662. However, to the extent that

Mr. Cooper's interpretation of the 2019 Regulation impliedly presumes that the changes in wording must have been intended to effect a substantive change in the law, that presumption is erroneous. Sometimes, the purpose of an amendment may simply be to clarify meaning or to correct a mistake: Sullivan on the Construction of Statutes at 662, 667. And, in any event, s. 37(2) of the Interpretation Act has been held to rule out any presumption in favour of substantive change. That provision reads as follows: The amendment of an enactment must not be construed to be or to involve a declaration that the law under the enactment prior to the amendment was or was considered by the Legislature or other body or person who enacted it to have been different from the law under the enactment as amended. See: Bradshaw v. Stenner, 2012 BCCA 481 at para. 19, 39 B.C.L.R. (5th) 241; Evans v. Jensen, 2011 BCCA 279 at para. 45, 19 B.C.L.R. (5th) 350; Doyon v. I.C.B.C., 2004 BCSC 565 at paras. 46-51, 29 B.C.L.R. (4th) 156, aff'd 2006 BCCA 313, 54 B.C.L.R. (4th) 201. [120] We agree with Ms. English--and the chambers judge--that once Mr. Cooper's interpretation of s. 8 of the 2019 Regulation is considered in light of its contextual constraints, it is not an interpretation that is demonstrably harmonious with the text, context and purpose. Those constraints include the interpretive rules imposed by the

modern principle of statutory interpretation, which Mr. Cooper was bound to apply. Instead, there is a single reasonable interpretation that emerges from the review and it accords with the position advanced by Ms. English in her petition. [121] In addition to preserving the agricultural land reserve, the ALC has a mandate that, on its face, is pro‑active in nature, namely, to "encourage local governments, first nations, the government and its agents to enable and accommodate farm use of land within the agricultural land reserve in their plans, bylaws and policies": ALCA, s. 6(1)(c) (emphasis added). See also, Lake Country (District) v. Kelowna Ogopogo Radio Controllers Association, 2014 BCCA 189 at paras. 18, 35, 57 B.C.L.R. (5th) 283. Mr. Cooper's restrictive interpretation is not justified with reference to a fundamental objective of the ALC. That interpretation reduces the availability of cannabis production on agricultural land, rather than "enable" and "accommodate" it as a form of farm use. [122] The 2019 Regulation is not Mr. Cooper's home statute. He did not bring "specialized expertise and experience" or "particular insight" to the interpretation exercise: Vavilov at paras. 119, 121. In the circumstances of this case, we are persuaded the chambers judge was correct in his application of the reasonableness standard and that the refusal of the building permit must be set

aside. The Order for Mandamus [123] Having found Mr. Cooper's interpretation of the regulation to be unreasonable, it is necessary to address the issue of remedy. [124] According to Vavilov: [141] where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court's reasons. [125] At the same time, Vavilov recognizes that: [142] there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended . An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose . Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the

efficient use of public resources may also influence the exercise of a court's discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed [Internal references omitted.] [126] The chambers judge declined to remit the matter to Richmond for further consideration. Instead, he granted Ms. English an order for mandamus compelling Richmond to issue the permit. Richmond opposed that outcome, arguing that before a permit could issue, a building inspector must determine whether the proposed greenhouse is a soil-based structure within the meaning of the 2019 Regulation. Mr. Cooper did not address that question in his refusal. [127] The judge was not convinced there were any remaining "technical issues" for a building inspector to consider. He was also of the view that there had been sufficient opportunity for Richmond to consider those issues while processing Ms. English's application (at para. 134). He saw "little value in referring [the] matter back to the City for reconsideration on the limited issue of whether the proposed greenhouse is a structure based entirely in soil, as [that would] invite rejection on a potentially spurious, technical ground" (at para. 139). [128] In reaching that conclusion, the judge considered a number of factors, including that before refusing the permit, Richmond did not raise concerns with

Ms. English about whether the greenhouse was soil‑based. The judge expressed concern about the additional delay that would result from remitting the matter. Furthermore, as noted, from his perspective Richmond had already had "genuine opportunity to weigh in" on all relevant conditions precedents (at para. 141). He concluded that "remitting the case would serve no useful purpose" (at paras. 142-143). [129] We are of the view the judge committed errors in principle in granting an order for mandamus sufficient to displace the deferential standard of review that governs this aspect of his ruling: Vavilov at para.

139. Accordingly, the matter should be remitted to Richmond for further consideration. [130] The determination of whether the proposed greenhouse constitutes a structure with a "base consisting entirely of soil" requires a building inspector to interpret that phrase. In addition, and importantly, it requires a technical assessment of Ms. English's building plans to determine whether the greenhouse meets the requirement. [131] The parties agree that in the circumstances of this case, an order for mandamus could only be issued if Ms. English satisfied all conditions precedent that gave rise to Mr. Cooper's duty to issue a permit: Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 at 766-69 (C.A.); Paldi Khalsa Diwan Society v. Cowichan Valley (Regional District), 2014 BCCA 335 at para. 56, 63 B.C.L.R. (5th) 311. The judge understood that requirement, noting that whether Ms. English had satisfied all conditions precedent was a live issue before him (at para. 118). Ultimately, he ruled in Ms. English's favour. [132] We are troubled by several aspects of the chambers judge's analysis. [133] First, in reaching this conclusion, the judge relied heavily on the fact that in its correspondence with Ms. English's representative, Richmond's employees did not raise any concerns about whether the greenhouse was soil‑based (at paras. 120-123, 129-131, 133-134, 140). We are of the

view the judge overemphasized this evidence. We agree with Richmond that the fact this issue was not raised is equally consistent with a determination that it was not necessary to do so because of the interpretation of the 2019 Regulation. Once Mr. Cooper concluded that the 2019 Regulation did not prohibit Richmond from disallowing cannabis production in structures constructed after July 13, 2018, the question of whether the proposed greenhouse was soil‑based became irrelevant. [134] Second, the judge placed weight on the fact that the record before him "establishe[d] that the City's only reason for refusing the 2019 Application was its interpretation of s. 8 of the 2019 ALR Regulation" (at paras. 122, 133). From this, he appears to have inferred that but for the interpretation, the permit would have issued. In our view, that inference is speculative. It is equally plausible that the letter from Mr. Cooper did not provide additional reasons for a refusal because his interpretation of the 2019 Regulation rendered everything else moot. [135] Third, the judge assumed that the proposed greenhouse, "which is designed to use screw piles as part of its foundation" (at para. 124), meets the requirement of being a soil‑based structure based on a letter put before him in which the director of policy and planning for the ALC told the design firm retained by Ms. English that "metal screw

pile or helical piers are acceptable in‑ground supports for cannabis production greenhouse[s] in the ALR in British Columbia" (at para. 128). Respectfully, to decide whether Ms. English meets the condition precedent, a full interpretive analysis of the wording in s. 8(1)(b) is required. [136] Finally, the judge expressed the view that to remit the matter would "invite rejection on a potentially spurious, technical ground" (at para. 139, emphasis added). The condition precedent that cannabis production structures have a "base consisting entirely of soil" forms an integral part of s. 8(1)(b). Respectfully, we would not characterize a determination of whether that requirement has been met as "spurious". [137] We do agree there is a "technical" aspect to the assessment of whether the proposed greenhouse is soil‑based. And, in that regard, neither the judge nor this Court has the technical expertise necessary to conduct the assessment. Instead, it is a determination that properly lies with a building inspector. [138] In our view, the judge's order for mandamus was tainted by legal error and must be set aside. Given the need for further interpretation of s. 8(1)(b) and an assessment of whether the proposed greenhouse is, in fact, a soil-based structure, we cannot say that issuance of a building permit is inevitable and remitting the matter would therefore serve no useful purpose.

Accordingly, it must go back to Richmond for further consideration, with the benefit of these reasons. [139] We note the judge rejected Ms. English's claim that Mr. Cooper acted in bad faith in refusing the permit. The judge found that Richmond's employees "processed the application normally" and that it was the interpretation of the 2019 Regulation that led to the refusal, not any form of ulterior or improper purpose (at paras. 113-114). Ms. English does not take issue with those findings on appeal. Disposition [140] We would allow this appeal to the limited extent of setting aside operative term no. 3 of the chambers judge's formal order, which requires Richmond to issue the building permit. We would remit Ms. English's application for that permit to Richmond for consideration of whether the proposed greenhouse constitutes a structure with a "base consisting entirely of soil" within the meaning of s. 8(1)(b) of the 2019 Regulation. "The Honourable Mr. Justice Frankel" "The Honourable Madam Justice DeWitt-Van Oosten" I AGREE: "The Honourable Mr. Justice Fitch"