Dara Quast Petitioner And: Cowichan Valley Regional District Respondent, 2012 BCSC 1979

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Quast v. Cowichan Valley Regional District, 2012 BCSC 1979 Date: 20131231 Docket: 11-2945 Registry: Victoria Between: Dara Quast Petitioner And: Cowichan Valley Regional District Respondent Before: The Honourable G.R.J. Gaul Reasons for Judgment Counsel for the Petitioner: Stephen C. Chapman Counsel for Respondent: Gwendoline C. Allison Place and Date of Hearing: Victoria, B.C. September 15 and 18 October, 2011 Place and Date of Judgment: Victoria, B.C.

December 31, 2012 Introduction [ 1 ] The respondent, the Cowichan Valley Regional District (the “CVRD”), wishes to establish and operate a recycling depot on property it owns in the South Cowichan region (the “Eco-Depot”). The petitioner, Ms. Quast, is opposed to the location of the Eco- Depot, arguing it is contrary to the CVRD’s applicable bylaw. Nature of Application [ 2 ] In her petition filed 13 July 2011, Ms.

Quast has sought the following relief: 1) A declaration that the term “utility” in the CVRD’s Area “B” Zoning Bylaw No. 985 (“Bylaw 985”) be interpreted in the following manner: “Utility” means: broadcast transmission services and facilities; electrical services and facilities; telephone services and facilities; sewer services and facilities; or water services and facilities; established or licensed by a government and includes navigation aids but excludes radio and television broadcast towers. 2) A declaration that the term “utility” in Bylaw 985 does not include recycling services and facilities or solid waste disposal services and facilities 3) A declaration that

section 4.2 of Bylaw 985 prohibits the CVRD from constructing or operating recycling services or facilities or solid waste disposal services or facilities on any property within Electoral Area “B” that is not zoned for that specific use. 4) A declaration that construction and operation of the proposed “South Cowichan Eco-Depot” on the subject property contravenes sections 2.2 and 4.2 of Bylaw 985. [ 3 ] During the course of oral submissions on the first day of the hearing of the petition, counsel for Ms. Quast advised the court

that the petitioner was withdrawing her request for relief under items 3 and 4 of her petition. However, on the second day of the hearing, counsel for the petitioner sought to resile from his earlier position and replace the relief being sought in paragraphs 3 and 4 of the petition with the following new relief: A declaration pursuant to

section 4.2 of the Bylaw 985, the construction or operation of recycling services or facilities or solid waste disposal services or facilities are not permitted uses of the subject Property [(the “New Declaration”)]. [ 4 ] Counsel to for the CVRD objected to the petitioner seeking the New Declaration, arguing that the petitioner had withdrawn her claim for essentially the same relief and should not be permitted to resurrect it in a new form at such a late date. Issues [ 5 ] Irrespective of the wording of the relief being sought by the petitioner, the parties agree that the main issue in this dispute is the proper

interpretation of the term “utility”, as that term is used in Bylaw 985. As such, in my view the two issues to be determined are: 1) Does the definition of “utility” in Bylaw 985 include a recycling facility, such as the Eco Depot? and 2) If not, should such a facility be included or read into the definition of “utility”? Background Facts The Parties [ 6 ] Ms.

Quast resides in Cobble Hill, British Columbia and has been a resident of the CVRD since 1996. [ 7 ] The CVRD is a regional district incorporated pursuant to the Local Government Act , R.S.B.C. 1996, c. 323, with its administrative offices located in Duncan, British Columbia. [ 8 ] The CVRD is made up of four municipalities, eighteen First Nation Reserves, and nine electoral areas ( ie . areas “A” to “I”). [ 9 ] The CVRD is governed by a 15-member Board of Directors. Six directors are appointed by the municipalities.

The residents of each of the nine electoral areas elect a director to represent their respective areas. [ 10 ] Electoral areas “A” (Mill Bay / Malahat), “B” (Shawnigan Lake) and “C” (Cobble Hill) are commonly referred to as the South Cowichan region of the CVRD. The present population of the South Cowichan region is approximately 18,000 residents. Electoral area “B” is the largest geographic area and has the largest populations of the three areas that make up the South Cowichan region.

The History of Waste Management in the CVRD [ 11 ] In the early 1990s, the CVRD assumed responsibility for the management of recyclable products within its jurisdiction. In his affidavit sworn 4 August 2011, Warren Jones, the Chief Administrative Officer for the CVRD explains the history and development of the CVRD’s role in waste management: [19] In or around 1989, the Province of British Columbia amended the then Waste Management Act (now Environmental Management Act) to require that all regional districts submit to the Province a solid waste management plan on or before December 31, 1995.

The goal of the plan was to reduce the amount of municipal solid waste per capita requiring disposal by 50 percent by the year 2000. An essential part of the strategy was the sequential hierarchy of the 3 R’s - reduce, reuse, recycle, plus recovery and residual management. [20] In or around 1992, the Province again amended the Waste Management Act (now Environmental Management Act). First, the Province reconfirmed that regional districts must submit solid waste management plans by 1995.

The Province also clarified the roles of local governments in municipal solid waste management planning; expanded the scope of municipal solid waste management planning to include recyclable materials; and provided new enabling authority for regional districts to implement municipal solid waste management plans approved by the Province. ... [22] Before the introduction of such legislative amendments, the CVRD operated three incinerator sites, which burned waste, and a landfill. However, the CVRD did not provide any significant recycling services.

Before 1993, the CVRD provided unsupervised and uncontrolled recycling “multi-bins”, which were dotted throughout the CVRD. In 1993, there were eighteen multi-bins around the CVRD. ... [24] On November 22, 1995, in compliance with the legislation, the Board of Directors of the CVRD (the “Board”) approved the CVRD’s Solid Waste Management Plan (“SWMP”). The SWMP first identified the need for establishing a “drop-off depot service centre” in the southern part of the CVRD. The SWMP was amended in 1997 and 2002.

The goal of the drop-off centre was to replace the many multi-bins and consolidate them in a central, easily accessible location which is both supervised and controlled. ... [29] Currently, the CVRD operates three recycling facilities within its boundaries: the Bings Creek Solid Waste Management Complex in North Cowichan, the Meade Creek Recycling Drop-Off Depot in the Cowichan Lake area and the Peerless Road Recycling Drop Off Depot in Ladysmith. Each of those facilities replaced multi-bins in the respective areas. However, there is currently no comprehensive public recycling facility in South Cowichan.

[30] The CVRD built the Bings Creek facility in 1999, as part of the SWMP, and later added the other two facilities. The Bings Creek facility is the CVRD’s only transfer station for solid waste. It accepts all forms of solid waste and also thirty-one types of recyclables.

The Bings Creek facility is the CVRD’s busiest facility...The Bings Creek facility is the closest facility for South Cowichan residents, and can be up to a one-and-a-half-hour, round trip drive, before the line-ups. [31] The CVRD offers curbside pick-up of a few recyclable materials, but does not offer curbside pick-up of all recyclable materials. Instead, it offers recycling services at the three facilities.

For South Cowichan, the CVRD also has recycling multi-bins at Dougan Park at Shawnigan Lake Community Centre, Kerry Park, the junction of the Transcanada Highway and Bench Road, and Valley View Mall. [32] The multi-bins are not staffed and are not secured. As a consequence, the CVRD has encountered a number of problems with the multi-bins. First, the bins are frequently overflowing, because they are not supervised. The multi-bins are checked frequently but on a

schedule and not on an “as-needed” basis. Second, the multi-bins are often filled with unsuitable materials, such as paint, oils, drainer fluids, car batteries and other contaminants. Sometimes, people dump furniture there too. Thirds, the CVRD has had instances of arson, where the paper bins have been set on fire.... [33] In addition, there has been illegal dumping in South Cowichan... ... [34] There has been a significant cost to the CVRD to maintain the multi-bind and deal with the contaminants left illegally at the multi-bins.

The CVRD’s Land Zoning Regulations [ 12 ] The CVRD has three zoning bylaws that apply to land in the South Cowichan region: 1) Electoral Area “A”: Area “A” Zoning Bylaw No. 2000 (“Bylaw 2000”); 2) Electoral Area “B”: Area “B” Shawnigan Lake Zoning Bylaw No. 985 (“Bylaw 985”); and 3) Electoral Area “C”: Area “C” Zoning Bylaw No. 1405, enacted in 1992 (“Bylaw 1405”). [ 13 ] There are minor differences in the way the term “utility” is defined in each of the three bylaws that govern the South Cowichan region. [ 14 ]

Section 3.1 of Bylaw 985, enacted in 1986, defines “utility” as follows: “utility” means broadcast transmission electrical telephone sewer or water services and facilities established or licensed by a government and includes navigation aids but excludes radio and television broadcast transmission towers. [ 15 ]

Section 3.1 of Bylaw 1405, enacted in 1992, defines “utility” as follows: “utility” means broadcast transmission, electrical, telephone, sewer or water services and facilities established or licensed by a government (excluding private radio or television broadcast towers) and includes navigation aids and seawalls. [ 16 ]

Section 3.1 of Bylaw 2000, enacted in 1999 defines “utility” as follows: “utility” means broadcast transmission, electrical, telephone, sewer, water or solid waste disposal services and facilities established or licensed by a government and includes navigation aids and seawalls The Property [ 17 ] After a lengthy and comprehensive search, in June 2010 the CVRD purchased property in the South Cowichan region upon which it proposed to build and operate the Eco-Depot (the “Property”). [ 18 ] The Property is a twenty-two acre parcel of land located within Electoral Area “B” and it is zoned A-1 (Agricultural). Consequently, the use and development of the Property is governed by Bylaw 985. [ 19 ]

Section 4.2 of Bylaw 985 specifies: Land or the surface of water shall not be used and structures shall not be constructed altered located or used except as specifically permitted by this bylaw [ 20 ]

Section 4.3 of Bylaw 985 stipulates: Notwithstanding any other provision of this bylaw the following uses are permitted in any zone: (

a) utility use; (

b) public park; (

c) group home for the mentally and physically handicapped. [ 21 ] The term “utility” is defined in

section 3.1 of Bylaw 985, already reproduced in these reasons at paragraph 15.

[ 22 ]

Section 7.1 of Bylaw 985 specifically addresses the permitted uses of land that has been zoned “agricultural”, and reads, in part: (

a) Permitted Uses The following uses and no others are permitted in an A-1 zone: (1) agriculture horticulture silviculture turf farm fish farm; (2) single family residential dwelling or mobile home; (3) one additional single family dwelling accessory to agricultural use; (4) sale of products grown or reared on the property; (5) horse riding arena boarding stable; (6) kennel; (7) home occupation - domestic industry; (8) bed and breakfast accommodation; (9) daycare nursery school accessory to a residential use; (10) secondary suite.

The Eco-Depot [ 23 ] The CVRD has proposed to develop the Eco-Depot as a full-service waste recycling centre for the residents of South Cowichan region in electoral areas A, B, and C. In his affidavit, Mr. Jones explains: ... [45] There are several reasons for developing the ECO depot in the South Cowichan region, which range from broader human and environmental health concerns, to more simple convenience issues. The reasons include: ... e.

The ECO depot will provide a quick and efficient method of recycling, rather than the time cost and frustration of going to the Bings Creek facility only to face possible line-ups. A full-service facility accepting 35 different recyclable items, most for free, within a 5-10 minute drive for 95 per cent of the South Cowichan population will result in increased participation with lower effort. ... [56] The ECO depot will be a staffed drop-off facility for household recyclables and waste. The ECO depot will not be a processing plant or landfill.

The ECO depot will have two, sealed bins to accept non-recyclable waste. Those bins will be emptied and the waste transferred to the Bings Creek facility as soon as they are filled. The Eco depot offers significant advantages over the current unstaffed multi-bins. Position of the Parties [ 24 ] There is no dispute between the parties that there is a need for a recycling facility in the South Cowichan region of the CVRD, nor is there a debate that the goal of the Eco-Depot is anything but laudable.

The problem revolves around the proposed location of the Eco-Depot. [ 25 ] The CVRD’s does not contend that its proposed construction and operation of the Eco-Depot on the Property falls within the permitted uses described in s. 7.1 of Bylaw 985. Instead, the CVRD argues the Eco-Depot is a “utility” as that term is defined in s. 3.1 of Bylaw 985. Therein lies the dispute between the parties. Statutory

Interpretation of “utility” [ 26 ] The petitioner says the proper

interpretation of “utility”, as that term is used in s. 3.1 Bylaw 985 requires the term to be read in conjunction with the words “services and facilities” that are also contained in the bylaw. Accordingly, the petitioner submits, the definition of “utility” in s. 3.1 should read: “Utility” means: a. broadcast transmission services and facilities; b. electrical services and facilities; c. telephone services and facilities; d. sewer services and facilities; or e. water services and facilities

established or licensed by a government and includes navigation aids but excludes radio and television broadcast transmission towers. [27] The respondent argues that the words “facilities established or licensed by a government” in the definition of “utility” in Bylaw985 create a separate category of “utility”, distinct from broadcast transmissions services, electrical services, telephone services, sewerservices, and water services.

According to the respondent’s argument, “utility” as that term is defined in s. 3.1 of Bylaw 985 should read: “Utility” means a. broadcast transmission services; b. electrical services; c. telephone services; d. sewer services; e. water services; or f. facilities established or licensed by a government and includes aids but excludes radio and television broadcast transmission towers. [28] The respondent further maintains that a solid waste management and recycling facility, such as the Eco Depot, falls undercategory “f” of the definition of “utility”. [29] The respondent submits, in the alternative, that if its proposed

interpretation of the term “utility” is incorrect, then it shouldnevertheless be defined broadly enough to include “solid waste and recyclable material”. The respondent maintains that such anexpanded definition of “utility” would be consistent with the CVRD’s statutory obligation to provide recycling services to its residentsand would ensure consistency with bylaws it has enacted subsequent to Bylaw 985, particularly Bylaw 2000. [30] The petitioner opposes any expansion of the definition of “utility”, arguing that it is not necessary given the unambiguousmeaning of the term. Moreover, the petitioner argues the “implied exclusion” principle of statutory

interpretation prohibits the “readingin” of an expanded definition of the term “utility”. Discussion / Decision The definition and meaning of “Utility” [31] In Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, the Supreme Court of Canada endorsed the approach to statutory

interpretation articulated at p. 97 of Professor Elmer Driedger’s Construction of Statutes, 2nd ed.,Toronto: Butterworths, 1983: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [32] Writing for the unanimous court in Bell ExpressVu, Iacobucci J. further explained: [27] The preferred approach recognizes the important role that context must inevitably play when a court construes the written wordsof a statute... [28] Other principles of

interpretation -- such as the strict construction of penal statutes and the “Charter values” presumption -- onlyreceive application where there is ambiguity as to the meaning of a provision... [29] What, then, in law is an ambiguity? To answer, an ambiguity must be “real”...The words of the provision must be “reasonablycapable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity,however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multipleinterpretations.

In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between two or more plausible readings,each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added),to which I would add “including other principles of

interpretation”. [30] For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- havecome to differing conclusions on the

interpretation of a given provision. Just as it would be improper for one to engage in a preliminarytallying of the number of decisions supporting competing

interpretations and then apply that which receives the “higher score”, it is notappropriate to take as one’s starting point the premise that differing

interpretations reveal an ambiguity. It is necessary, in every case,for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafterto determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to theirmeaning”. [33] In Sullivan on the Construction of Statutes, 5th ed., Markham: LexisNexis, 2008, Professor Ruth Sullivan summarized at p. 3the fundamental analytical framework of statutory

interpretations: At the end of the day, after taking into account all relevant and admissible considerations, the court must adopt an

interpretation that isappropriate. An appropriate

interpretation is one that can be justified in terms of (

a) its plausibility, that is, its compliance with the

legislative text; (

b) its efficacy, that is, its promotion of legislative intent; and (

c) its acceptability, that is, the outcome complies withaccepted legal norms; it is reasonable and just. [34] I have examined and considered the words and format used to define the term “utility” in s. 3.1 of Bylaw 985 and in doing so Ihave kept in mind the applicable rules and principles of statutory

interpretation. Having done so, I find no genuine ambiguity in thedefinition of “utility”. In my opinion, a plain reading of the words used to define “utility” in s. 3.1, as well as an examination of thestructure and punctuation of the

section in question, leads to the conclusion that the drafters of the bylaw meant to create five and not sixseparate and distinct categories of services and facilities that could be considered a “utility” for the purpose of Bylaw 985. In particular, Iam not persuaded by the respondent’s argument that the words “facilities established or licensed by a government” creates a sixthcategory of utility under which the proposed Eco Depot legitimately falls. In reaching this conclusion, I have also considered the mannerin which the respondent has defined “utility” in its other bylaws for the South Cowichan region and other Electoral Areas within theCVRD. [35] In my opinion an extensive statutory

interpretation analysis of the impugned provision is not necessary, as the only plausible,efficient and acceptable definition of “utility” is the one advanced by the petitioner. In this regard, I find the respondent’s

interpretationof the term “utility” is overly broad. If the respondent’s position is accepted, then any facility “established or licensed by a government”would conceivable be a “utility” for the purposes of Bylaw 985. That in my view would create an absurdity. While some facilitiescreated or licensed by a government would legitimately fall under the definition of utility, many would not. For example, a casino orliquor store that is licensed by a government would not, under any reasonable definition, be considered a “utility”. [36] In

summary, I find the petitioner’s

interpretation of “utility” as that term is used in s. 3.1 of Bylaw 985 makes the most sense. In my view the definition of “utility” is clear and a proposed service or facility must fall into one of the five enumerated categories beforeit can be deemed to be a “utility” for the purposes of Bylaw 985. Reading In / Implied Exclusion [37] In the alternative to its principal position, the respondent argues that recycling and solid waste facilities should be read into thedefinition of “utility” so that Bylaw 985 is consistent with later bylaws passed by the CVRD (eg.

Bylaw 2000) and with the CVRD’sstatutory responsibility for recycling and waste management. [38] In support of its argument for an expanded definition of “utility”, counsel for the respondent relies upon the principles ofstatutory

interpretation and the conclusions of our Court of Appeal in Skopnik v. BC Rail Ltd., 2008 BCCA 331. In Skopnik, the plaintiffwas injured while operating an all-terrain-vehicle along the defendant railway’s right of way. One of the key issues at trial relating to theissue of liability was whether the defendant was a utility under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 (the “OLA”). Infinding the defendant liable for the plaintiff’s injuries, the trial judge held at para. 7 of his reasons indexed at 2007 BCSC 1340 that thedefendant was not a utility under the OLA: [7] B.C.

Rail submits that if the accident scene does not fit within the meaning of “vacant” or “undeveloped” land, then it should fallwithin the meaning of a “utility right-of-way and corridor” as used in s. 3(3.3)(

d) of the Act. In his submission, counsel points out thatthe phrase “utility right-of-way and corridor” is not defined in the Occupiers’ Liability Act, but would probably cover situations such aselectricity transmission lines and pipeline corridors. He also says there are no cases on the issue of whether a railway is a “utility”within the meaning of the statutory provisions. Counsel very fairly concedes that for some purposes, railways have been found to beutilities (see Chen v.

Hsu (1997), (BC SC), 8 R.P.R. (3d) 138 (B.C.S.C.) aff’d (1998), 17 R.P.R. (3d) 206 (B.C.C.A.))and for other purposes they are not (the Utilities Commission Act, R.S.B.C. 1996, c. 473 defines “public utility” to exclude railways). [39] In allowing the defendant’s appeal, Bauman J.A. (as he then was) concluded that the railway was a “utility” and therefore fellwithin the definition of that term in the OLA. In coming to this conclusion and in particular reference to para. 7 of the trial judgesreasons, Mr. Justice Bauman observed: [44] Counsel’s reference to the UCA is a bit of a red herring.

It is not so much that the UCA defines “public utility” to excluderailways. It simply defines the phrase in a way that does not include a railway. A different inference may well have arisen had theLegislature expressly excluded railways from “utility” in the UCA. I do not read the UCA as purporting to create an exhaustive listing ofutilities. [40] Tysoe J.A. agreed with Bauman J.A. that the defendant was a utility for the purpose of the OLA. In doing so, Tysoe J.A. reliedupon the

definitions of “public utility” found in the Oxford English Dictionary, vol. XII, 2nd ed. and the New Encyclopedia Britannica, 15th ed., vol. 9 (Chicago: Encyclopedia Britannica, 1998) and concluded: [88] These broader

definitions are close to the meaning given to the word “utility” in Chen v. Hsu, the authority primarily relied uponby Mr. Justice Bauman, where it was held at paragraph 26 that railroads are public utilities because “they provide a use or service to thepublic”. [89] In my opinion, these

definitions support the conclusion that the ordinary sense of the word “utility” includes railways such as BCRail. Furthermore, if the word “utility” can be given either a narrow

interpretation that excludes railways or a broad

interpretation thatincludes railways, it is my view that it should be given a broad

interpretation to achieve the purpose of section 3(3.3)(

d) of the OccupiersLiability Act. ... [92] In my opinion, the broader

interpretation of the word “utility” (i.e. to include railways) is more consistent with the Legislature’sintention to encourage use of suitable lands by recreationalists. [41] The respondent draws a parallel between the finding that a railway is a utility in Skopnik and its position in the present case thatthe proposed Eco Depot recycling and solid waste facility is a utility.

[42] In opposing this alternate argument of the respondent, the petitioner relies upon the “implied exclusion” principle of statutoryinterpretation. At p. 244 of her text Construction of Statutes, supra., Professor Sullivan explains this principle as follows: An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thingwithin its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention thething becomes grounds for inferring that it was deliberately excluded.

Although there is no express exclusion, exclusion is implied. AsLaskin J.A. succinctly put it, ‘legislative exclusion can be implied when an express reference is expected but absent ... ... Failure to mention comparable items. When a provision specifically mentions one or more items but is silent with respect to other itemsthat are comparable, it is presumed that the silence is deliberate and reflects an intention to exclude the items that are not mentioned. Asexplained by Noel, J.A. in Canada (Canadian Private Copying Collective) v. Canadian Storage Media Alliance, 2004 FCA 424, [2004] F.C.J.

No. 2115 at para 96 (F.C.A.), dealing with a series of express exceptions, ‘if a statute specifies one exception (ormore) to a general rule, other exceptions are not to be read in. The rationale is that the legislator has turned its mind to the issue andprovided for the exemptions which were intended.

The reasoning here is essentially counterfactual: if the legislature had intended to include comparable items, it would have mentionedthem expressly or used a general term sufficiently broad to encompass them; it would not have mentioned some while saying nothing ofthe others ... [43] With respect, I do not find the Skopnik decision to be of much assistance in the circumstances of the case at bar. A criticalfactor in Skopnik that is not present in the instant case is that the word “utility” is not defined in the OLA.

In the result, the trial judge inSkopnik, as well as the Court of Appeal sitting in review of the trial judge’s decision, were compelled to look beyond the OLA to find thelegislators’ intended meaning of the word “utility”. In the present case, “utility” is specifically defined in s. 3.1 of Bylaw 985 and I amsatisfied there is no ambiguity in its meaning that necessitates the statutory

interpretation exercise that was required in Skopnik. I alsonote that unlike the definition of “utility” under scrutiny in Skopnik, the definition of that term in s. 3.1 of Bylaw 985 creates what in myview is an exhaustive list of services or facilities that qualify as “utilities”. [44] Moreover, in my view, the petitioner’s argument and reliance on the implied exclusion principle of statutory

interpretation ispersuasive. The drafters of Bylaw 985 specifically framed the definition of the “utility” to incorporate five distinct categories of servicesor facilities. In my opinion, recycling or solid waste management services or facilities are comparable to the services or facilities listed inthe definition of “utility”. Consequently, given their exclusion from the established list of items that constitute utilities for the purpose ofBylaw 985, I accept that an inference can be drawn that the drafters of the bylaw intended to exclude them.

Finally, I note there is noindication in s. 3.1 or anywhere else in Bylaw 385 or in any of the evidence before me that the drafters of the bylaw wished to include ageneral provision that would allow for the inclusion of unnamed or unlisted similar services or facilities. [45] In the result, I do not find the respondent’s argument that the definition of utility needs to be or should be interpreted as broadlyas it proposes. More particularly, I do not find the expression “facility established or licensed by a government” is or should be a distinctsixth category of “utility”, as that term is defined in Bylaw 985.

If that is what the CVRD wishes, then in my view the proper course ofaction is to amend the definition of “utility” that is found in Bylaw 985. Conclusion [46] I am persuaded of the soundness of the petitioner’s position in relation to the

interpretation and meaning of the term “utility” asthat term is used in Bylaw 895. Consequently, I will grant the declarations sought in paragraphs 1 and 2 of the petition.

Thosedeclarations will consist of the following: 1) The term “utility” as it is used in the CVRD’s Bylaw 985, is to be interpreted as follows: “Utility” means: a. broadcast transmission services and facilities; b. electrical services and facilities; c. telephone services and facilities; d. sewer services and facilities; or e. water services and facilities established or licensed by a government and includes navigation aids but excludes radio and television broadcast transmission towers. 2) The term “utility” as it is used in the CVRD’s Bylaw 985 does not include recycling services and facilities or solid waste disposalservices and facilities. [47] As I have previously noted, during the course of his oral argument, counsel for the petitioner abandoned the relief being soughtat paragraphs 3 and 4 of the petition.

In his reply submissions on day two of the hearing, counsel attempted to resile from his earlierposition and seek the New Declaration that in essence was an amalgamation of the relief previously abandoned. [48] In his written reply submissions, counsel for Ms. Quast explained the petitioner’s change in position: [23] At the hearing, Petitioner’s counsel advised this Court that the Petitioner no longer seeks the relief set out in paragraphs 3 and 4of

Part 1 of the Petition.

[24] However, after given (sic) the matter additional thought, Petitioner’s counsel seeks to resile from that position. [25] It is the Petitioner’s position that, if its

interpretation is found to be correct, that it would be entitled to a declaration regarding

section 4. 2 of the Bylaw [Bylaw 985] [26] Specifically, the Petitioner submits that it would be entitled to a declaration that the use of the subject Property to site a recycling or solid waste facility is not allowed under

section 4.2 of the Zoning Bylaw [Bylaw 985] [27] The Petitioner requests a declaration that: ‘Pursuant to

section 4.2 of the Zoning Bylaw [Bylaw 985], the construction or operation of recycling services or facilities or solid waste disposal services or facilities are not permitted uses of the subject Property’ [the “New Declaration”] [28] Although this declaration clearly differs from those previous (sic) sought, it does not differ in any fundamental way.

It is clear to all parties that the main issue in this petition is whether the Respondent can use the Property for the Respondent’s stated intended use of siting the Eco-Depot. [ 49 ] The respondent argues that it presented its arguments based upon the relief that the petitioner was seeking and that included amending its argument in light of the petitioner’s decision to abandon a portion of that relief.

The respondent consequently objects to the petitioner’s attempt to reverse her position and her late attempt to seek the New Declaration that specifically applies to the Property, claiming such a last minute change is unfair and prejudicial to the respondent. I agree with the respondent. The specific relief being sought in paragraphs 3 and 4 of the petition were abandoned by the petitioner. The respondent tailored its arguments in light of that abandonment.

To allow the petitioner to resurrect the abandoned relief in the form of the New Declaration would in my view be unfair to the respondent as it has not been given the opportunity to address the issues raised or the specific nature of the relief being sought. I therefore decline to make the New Declaration. [ 50 ] Unless there are issues that I am unaware of, the petitioner is entitled to her ordinary costs. The parties have 30 days from the date of these reasons for judgment to indicate whether they wish to make submissions on the issue of costs.

In such an event, I will indicate the form in which those submissions should be made. “G.R.J. Gaul, J.” The Honourable Mr. Justice G.R.J. Gaul