Paldi Khalsa Diwan Society, Lake Cowichan Khalsa Diwan Society, Vancouver Island Khalsa Diwan Society, Vancouver Island Sikh Cultural Society v. Cowichan Valley Crematorium Ltd., 2013 BCSC 1773

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Paldi Khalsa Diwan Society v. Cowichan Valley (Regional District), 2013 BCSC 1773 Date: 20130926 Docket: 12-3013 Registry: Victoria In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996 c. 241 Between: Paldi Khalsa Diwan Society, Lake Cowichan Khalsa Diwan Society, Vancouver Island Khalsa Diwan Society, Vancouver Island Sikh Cultural Society and Cowichan Valley Crematorium Ltd. Petitioners And Cowichan Valley Regional District Respondent Before: The Honourable Mr. Justice Bernard Reasons for Judgment Counsel for Petitioners: L.J. Alexander L.R.

LeBlanc Counsel for Respondent: A.D. Bradley Place and Dates of Hearing: Victoria, B.C. February 13-14, 2013 April 9-10, 2013 Place and Date of Judgment: Victoria, B.C. September 26, 2013 A. Overview [ 1 ] The petitioner Cowichan Valley Crematorium Ltd. (“CVC”) leases a crematorium from the other named petitioners (collectively “Khalsa Diwan” for ease of reference). CVC operates the crematorium as a commercial enterprise. The crematorium is part of a Sikh temple owned by Khalsa Diwan.

The temple is built on land which falls within the Cowichan Valley Regional District (“CVRD”), and the land is zoned “Parks and Institutional” (“P-1”). [ 2 ] A crematorium is not an expressly permitted use within P-1. While the CVRD has no objection to use of the crematorium for religious or ceremonial purposes, it is opposed to it being operated as a commercial enterprise offering cremation services to the general public. [ 3 ] The crematorium in question was built by Khalsa Diwan in the autumn of 2010, pursuant to a building permit issued by the CVRD.

Khalsa Diwan then put the crematorium into the hands of Harold Wallace, principal of CVC, to operate as a commercial enterprise. On January 13, 2011, CVC applied for, and obtained, a licence to operate the crematorium as a commercial enterprise. The licence was issued by Consumer Protection BC (“Consumer Protection”) pursuant to s. 28 of the Cremation, Interment, and Funeral Services Regulation, B.C.

Reg. 298/2004 (the “Regulation”) without prior consultation with the CVRD. [ 4 ] In February 2011, the CVRD became aware from newspaper advertisements that the crematorium in question was operating as a commercial enterprise. Shortly thereafter, the CVRD informed Khalsa Diwan that a commercial crematorium was not a permitted use within zone P-1. [ 5 ] In May 2011, Khalsa Diwan applied to the CVRD to re-zone the property so as to permit operation of the crematorium as a business.

In furtherance of the proposed re-zoning, a public meeting was held on November 22, 2011. [ 6 ] On February 8, 2012, prior to a decision in relation to the re-zoning application, Khalsa Diwan withdrew its application and took the position that the commercial crematorium was a permitted use under the present zoning. In a subsequent letter to Khalsa Diwan, the CVRD confirmed its position that the operation of the crematorium as a commercial enterprise was not permitted, and requested that

such usage cease by May 31, 2012. [ 7 ] On May 31, 2012, the CVRD informed Consumer Protection that it had not been consulted prior to the issuance of a licence, as is required by the Regulation . The Regulation provides that Consumer Protection must have documentation from the CVRD that the crematorium is a permitted use under the bylaws. Upon a review by Consumer Protection, it was determined that no such documentation had been received; accordingly, it wrote to CVC, advising Mr.

Wallace that he had until September 1, 2012 to comply with the Regulation. [ 8 ] On July 4, 2012, the petitioners demanded that the CVRD provide the required documentation to Consumer Protection. The CVRD refused to do so, on the basis that a commercial crematorium was not a permitted use within zone P-1. [ 9 ] On August 27, 2012, the instant proceedings were commenced. Within these proceedings, the petitioners seek: (

a) a declaration that a commercial crematorium is a permitted use within zone P-1; and, (

b) an order compelling the CVRD to provide the documentation needed by Consumer Protection to satisfy the prerequisites for the issuance of a licence. [ 10 ] On October 1, 2012, Consumer Protection suspended the crematorium licence for failure to comply with the Regulation ; however, this suspension was stayed pending the outcome of these proceedings. [ 11 ] Since the crematorium began operating as a commercial enterprise in January 2011, it is understood that more than 200 cremations have been performed.

In stark contrast, there were one or two Sikh ceremonial cremations per year when the wood-fueled crematorium was the sole crematorium at the temple. B. Background [ 12 ] The Sikh temple in question was built in the 1960s, well prior to the establishment of the zoning bylaw in question, and it included a wood-fueled crematorium for Sikh ceremonial purposes. It is not contentious that the crematorium was used infrequently and, in the post-zoning period, the CVRD was not troubled by its existence and its minimal use. [ 13 ] On June 4, 2010, CVC was incorporated.

The directors are Harold and Yvonne Wallace. [ 14 ] On August 11 2010, Khalsa Diwan applied to construct a new gas-fueled crematorium at the temple. (For ease of reference, the one-page application/ approval is appended to this judgment as Appendix “A”.) The applicant, on behalf of Khalsa Diwan, was a man named Joga Manj. He named the owner as “Cowichan Valley East Indian Crematorium”, although no such entity existed.

Under “Building Use” he checked the “commercial” box, but then also wrote “non-profit organization” in a blank space intended for describing a use other than the very limited standard ones provided. [ 15 ] On September 14, 2010, Ian MacDonald, a building inspector for the CVRD, approved the application. The CVRD’s position is that this approval was given with the understanding that the sole purpose of the construction was to replace the wood-burning crematorium with one that was gas-fueled, and not to change its usage. [ 16 ] During the construction, Mr. MacDonald attended to the building site and dealt with Mr.

Manj. A final inspection report showing “substantial completion” was issued by Mr. MacDonald on December 22, 2010. Mr. MacDonald has since stated that at no time did he understand that the crematorium was intended to be run as a commercial enterprise providing cremation services to the general public. [ 17 ] In January 2011, CVC, as lessees of the new crematorium from Kalsa Diwan, applied to Consumer Protection for a licence to operate the crematorium as a commercial enterprise. To satisfy the prerequisites of the Regulation , a copy of the building permit was submitted.

This copy had been altered by deleting “East Indian” from the owner’s name (see Appendix “B”); in other words, the owner’s name now read as “Cowichan Valley Crematorium”, with no apparent cultural or religious affiliation. Whether intended or not, the deletion created apparent conformity between the owner/applicant for the building permit and the owner/applicant for the commercial crematorium licence, thus suggesting that the CVRD had granted the building permit to the licence applicant, a commercial crematorium operator.

This alteration to the building permit was later discovered by the CVRD and brought to the attention of Consumer Protection. [ 18 ] After Khalsa Diwan withdrew its application to vary the zoning to permit the operation of a commercial crematorium at the temple, counsel for the CVRD, Alyssa Bradley, wrote to counsel for the petitioners, to inform the petitioners of the CVRD’s position regarding the new gas-fueled crematorium.

In this regard, Ms Bradley said: It is our understanding that your clients gather on the Property for public worship during cremations in the traditional wood burning crematorium as well as the new gas-fuelled crematorium. The Regional District is prepared to accept that the use of both the crematoriums on the Property for this purpose is permitted under the Zoning Bylaw as a “religious facility”. As such, your clients may continue to use both crematoriums on the Property for this purpose.

It is the Regional District’s position, however, that the commercial uses of a crematorium on the Property not associated with religious gatherings of persons for public worship during the cremations is not permitted under the Zoning Bylaw. The Regional District has therefore instructed us to write to advise that the Regional District hereby requires your clients to cease all non-religious commercial uses of the new crematorium on the Property by May 31, 2012. C. Evidentiary Synopsis

[ 19 ] Brian Duncan is the Manager of the Inspections and Enforcement Division for the CVRD. In relation to the existence of a wood-fueled crematorium at the Sikh Temple, he said he understood that it had been in operation for Sikh ceremonial cremations since the 1960s, long before the adoption of the zoning bylaw in question in 1998. [ 20 ] Mr. Duncan recalled Khalsa Diwan’s application to build a new crematorium. He said three East Indian men attended at the counter of the CVRD office, and one of the three said they wished to build a gas-fueled crematorium to replace the out-dated wood- burning one.

He said he recalled the spokesman commenting on the difficulties they were having with some of the older “traditionalists” from the temple who were in favour of wood. Mr. Duncan said that during this conversation there was no mention that the new crematorium would be leased out and operated as a commercial venture; rather, it was his understanding that the new crematorium was to replace the old one, and was to be used in the same traditional manner. Mr. Duncan gave the men a permit application and assigned building inspector Ian MacDonald to the matter. [ 21 ] Mr.

Duncan said that it was not until February 2011 that he learned that the newly constructed gas-fueled crematorium was operating as a commercial enterprise. It was brought to his attention by a CVC newspaper advertisement for cremations at the temple’s site. [ 22 ] Ian MacDonald is the CVRD employee who issued the building permit for construction of the gas-fueled crematorium and then performed the requisite inspections. He said that he was never informed that the new crematorium would be operated as a commercial enterprise providing cremation services to the general public.

In relation to the alteration to the building permit, Mr. MacDonald said that on the original file copy of the permit that was issued by the CVRD the words “East Indian” had not been deleted. [ 23 ] David Johal is a director of Lake Cowichan Khalsa Diwan Society. He said that the wood-burning crematorium “has always been open to the general public at large, and members outside of the Sikh faith community have used the crematorium for non-Sikh based ceremonies”.

He added that the owners do not have a policy restricting the use of the wood-burning crematorium to those of the Sikh faith. [ 24 ] Harold Wallace is the director of CVC. Mr. Wallace said that in October 2010 he requested from Ian MacDonald a letter to submit to Consumer Protection in order to satisfy the Regulation requirements for obtaining a crematorium licence. He said that Mr. MacDonald informed him that the building permit and final inspection report would suffice; accordingly, he submitted these documents with his application. In this regard, Mr.

MacDonald said he has no recollection of ever speaking to Mr. Wallace during the building process, let alone being asked to provide a letter for Consumer Protection. Mr. MacDonald said that if such a request had been made to him he would have consulted with Brian Duncan because he was not familiar with Consumer Protection’s requirements for a crematorium licence. [ 25 ] No evidence from the named applicant for the permit, Joga Manj, was tendered. D. Legislation [ 26 ] CVRD, Bylaw No. 1840 , Electoral Area “E” - Cowichan Station/ Sahtlam/Glenora Zoning Bylaw (1998) (the “zoning bylaw”), creates 21 zones.

Among these zones is P-1: Parks and Institutional.

Section 10.1 of the bylaw provides for 10 permitted uses in P-1, “and no others”. The uses are delineated as follows: (1) assembly ; (2) civic use , transportation facility including airport; (3) ecological reserve, public park , greenbelt; (4) institution, religious facility; (5) personal care facility; (6) public botanical garden; (7) public school, private school including boarding facilities and accessory staff accommodation; (8) one single family dwelling per parcel accessory to a use permitted in

Section 10.1(a)(1) to 10.1(a)(7). [ 27 ]

Part III of the bylaw defines the words institution, religious facility, and assembly as follows: “institution” includes an arena, armory, cemetery, college, community centre, community hall, court of law, fire hall, hospital, library, municipal office, park, playground, police station, public art gallery, public museum, school, stadium or public swimming pool; “religious facility” means an assembly building used for public worship; “assembly” means the gathering of persons for charitable, civic , cultural, educational, entertainment, political, recreational, or religious purposes[.] [ 28 ] Section 28(1) of the Regulation provides as follows: 28

(1) An applicant for a licence to act as or hold himself, herself or itself out as an operator of the crematorium must submit to the director a document

(

a) that is executed on behalf of (

i) the municipal council, if the land is within a municipality, (ii) the regional board, if the land is within an electoral area of a regional district, or (iii) the local trust committee, if the land is within a local trust area as defined in the Islands Trust Act , and (

b) in which the municipal council, the regional board or the local trust committee, as the case may be, confirms that (

i) the proposed use is permitted by its bylaws, and (ii) the site and the building plans for the crematorium have been approved by or on behalf of the municipal council, regional board or local trust committee, as the case may be. [ 29 ] The Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, provides as follows: Application for judicial review 2

(1) An application for judicial review must be brought by way of a petition proceeding.

(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of the proceedings for: (

a) relief in the nature of mandamus… (

b) a declaration…in relation to the…refusal to exercise…a statutory power. No writ to issue 12

(1) No writ of mandamus . . . may be issued.

(2) An application for relief in the nature of mandamus . . . must be treated as an application for judicial review under

section 2.

Summary disposition of proceedings 13 (1) … court may direct that any issue about the . . . refusal to exercise . . . a statutory power be disposed of summarily, as if it were an application for judicial review. E. Positions of the Parties [ 30 ] The petitioners have framed the essential issues for judicial resolution as follows: (

a) Is the crematorium, as a commercial enterprise, a permitted use within zone P-1; and, (

b) Were the plans and site location for said crematorium approved by or on behalf of the CVRD? [ 31 ] In support of issue (a), the petitioners rely, firstly, on the words of Ms Bradley in her letter of February 23, 2012, in which she writes that the CVRD is: prepared to accept that the use of both the crematoriums on the Property for [religious gatherings of persons for public worship during cremations] is permitted under the zoning bylaw as a ‘religious facility’.” [Emphasis added.] [ 32 ] The petitioners argue that these words are an admission that a crematorium is a permitted use within P-1. [ 33 ] In relation to whether the crematorium may be operated as a commercial enterprise, the petitioners rely upon the common law which prohibits discriminating between users (vs. uses) of the land, and submits that the CVRD’s position - that the crematorium cannot be operated as a commercial enterprise - violates the principle that a zoning power cannot restrict the users (as opposed to uses) of land through zoning bylaws: see Greater Victoria School District No. 61 v.

Oak Bay (District) , 2006 BCCA 28 , and 2006 BCCA 68 . [ 34 ] In essence, the petitioners say that if a crematorium is a permitted use, then not allowing it to be operated commercially wrongfully discriminates against some members of the general public ( vis- à -vis temple members) who might wish to use it. [ 35 ] The petitioners also rely upon the building permit itself, which was granted upon the application of Mr.

Manj, who had checked the box “commercial” on the application form to construct a new crematorium. [ 36 ] On the question of whether zone P-1 was intended to include a crematorium as a permitted use, the petitioners note that the crematorium existed prior to the zoning bylaw and its presence at the temple was known to the CVRD. The petitioners argue that from the foregoing history, a reasonable inference should be drawn that the CVRD must have intended to include crematoria as a permitted use within P-1.

In support of this argument, the petitioners note that the definition of “institutions” is not an exhaustive one; thus, given the unique history it ought to be taken as including crematoria. [ 37 ] The petitioners quote from the Online Oxford Dictionaries (British and World English) definition of “institution”, which states as follows:

an organization founded for a religious, educational, professional, or social purpose. The petitioners submit, succinctly, that a crematorium “for all purposes, fits within this definition”. [ 38 ] The petitioners also rely upon the zoning bylaws of other British Columbian cities and districts such as Burnaby, Quesnel, Nanaimo and Saanich, which expressly include crematoria within their “public and institutional” zones. [ 39 ] In support of issue (b), the petitioners rely upon the issuance of the building permit and the final inspection report.

The petitioners argue that it is self-evident that the building plans and the site location were approved on behalf of the CVRD. It argues that it is not open to the CVRD to reconsider these matters after construction has been completed. [ 40 ] The essence of the respondent’s position is: (

a) That a crematorium is not a permitted use within zone P-1, notwithstanding the words in the letter from counsel, relied upon by the petitioners; (

b) That the original wood-burning crematorium was a non-conforming use to which the CVRD consented because: (

i) it was in existence at the time of the enactment of the zoning bylaw, (ii) it was an aspect of religious rites within a Sikh temple, and (iii) it was rarely used; (

c) That when the building permit for the new gas-fueled crematorium was issued, it was on the understanding that the new crematorium was simply a replacement for the old wood-burning crematorium, to be used for the same “grandfathered” purpose; (

d) That even if a crematorium were a permitted use, zone P-1 is not a commercial zone and, thus, operating the crematorium as a business is forbidden; (

e) That bylaws are intended to, inter alia , discriminate between commercial and non-commercial uses of premises; and, (

f) That in these circumstances the CVRD cannot provide Consumer Protection with the documentation it requires to issue the business licence sought by the petitioners. [ 41 ] In relation to whether a crematorium falls within the definition of “institution” as a permitted use within zone P-1, the CVRD submits that it must be borne in mind that a crematorium is a particularly distinct use of land with impacts quite different from typical institutions such as schools and hospitals.

Given the nature of a crematorium, the respondent submits that the absence of express inclusion is meaningful, since crematoria cannot be said to fall within the ordinary meaning of “institution”. It notes, for example, that “cemetery” is expressly included within the definition, whereas funeral homes and crematoria are not.

It submits that the inclusion of cemetery is telling because it suggests that the drafters turned their minds to uses covered by the Cremation, Interment, and Funeral Services Act , S.B.C. 2004, c. 35 and the Regulation , and specifically declined to include crematoria with the definition of “institution” in zone P-1. [ 42 ] In relation to the commercial use of a crematorium within P-1, the respondent points out that the zoning bylaw draws a clear distinction, as one would expect, between institutional/park zones and commercial zones.

The respondent argues that it is one of the fundamental purposes of zoning bylaws to separate commercial uses from others, such as residential and institutional. [ 43 ] As for whether a crematorium falls within the definition of “religious facility”, the respondent submits as follows: that it is not a gathering place for public worship; that a crematorium has a very different impact on the land than does a religious facility where people gather for public worship; and, that a crematorium is not a religious facility simply by virtue of the fact that burning human remains may be an aspect of a religious ceremony. [ 44 ] In any event, the respondent submits that even if the crematorium in question fell within the definition of religious facility, operating it as a commercial enterprise is clearly prohibited in zone P-1.

The respondent rejects the notion that such a restriction wrongfully discriminates against users, rather than uses, of the land. [ 45 ] Finally, the respondent submits that the petitioners cannot rely on the issuance of the building permit to support their position. The respondent says the petitioners expressly misled the CVRD about the purpose of the crematorium; however, regardless of this deception, the issuance of a building permit is not relevant to the legal

interpretation of the zoning bylaw and the question of whether a commercial crematorium is a permitted use. F. Discussion [ 46 ] It is common ground that in matters of statutory

interpretation, the words in question must be read in context, in their grammatical and ordinary sense, and in a manner that is harmonious with the scheme and object of the enactment and with the intention of the legislature: see Sullivan on the Construction of Statutes 5th ed. (Markham, Ont.: LexisNexis, 2008), at 1; North Pender Island Local Trust Committee v. Conconi , 2010 BCCA 494 at para. 13 . In the absence of ambiguity, extrinsic evidence should not be considered: see Whistler (Resort Municipality) v.

Wright , 2003 BCSC 1192 at para. 23 . [ 47 ] On the question of whether a crematorium falls within the definition of “institution”, it is not in contention that the effect of the word “includes” is to enlarge the definition, whereas the effect of the word “means” is to restrict it; accordingly, the CVRD agrees that institutions other than those expressly identified in the definition may fall within the definition of “institution” upon application of the

principles of statutory

interpretation. [ 48 ] In this case, a crematorium is not within the listed institutions, whereas a cemetery is expressly included. I agree with the CVRD that this absence and inclusion in the context of an extensive list of identified institutional uses, is of significance. As was fairly stated by the CVRD, a crematorium is a distinct use of land with impacts quite different than other typical institutions such as schools, hospitals and community centres.

I am not persuaded that it can reasonably be maintained that a crematorium fits within the ordinary meaning of “institution”; moreover, I think it is reasonable to infer from the specific inclusion of cemeteries that the drafters of the bylaw turned their minds to non-typical institutions such as those dealing with human remains, and opted not to include crematoria among the many listed. [ 49 ] In any event, the petitioners’ principal position is that the crematorium in question is a religious facility and, thus, a permitted use.

I am unable to agree. “Religious facility” is defined as meaning “an assembly building used for public worship” and “assembly” is defined as meaning “the gathering of persons for charitable, civic, cultural, educational, political or religious purposes”. As already observed, the word “means” is used to restrict the

definitions of these words. Not surprisingly, the list of purposes for “gathering” does not include cremation, as a crematorium is not a place of public worship. [ 50 ] I am not persuaded that “religious purposes” may reasonably be construed as including cremation. Cremation, per se , is not a religious ceremony. Simply because it may be an aspect of some religious rites is not enough. I am satisfied that it would offend the principled approach to statutory

interpretation to interpret the terms “religious facility” and “assembly” in a manner that would have facilities for the cremating of human remains fall within the definition of “religious facility”. [ 51 ] On this question, I am not persuaded that anything turns on the words in the letter written by counsel for the CVRD, as relied upon by the petitioners. It is clear from the whole of the evidence that the CVRD was willing to accept the wood-burning crematorium, and what it understood to be its gas-fueled replacement, as a non-conforming use, taking into account: (

a) that the wood-burning crematorium pre-existed the zoning bylaw; and, (

b) that the crematorium was a rarely used aspect of some religious rites performed at the temple. This was a concession which, as I understand it, the CVRD is still willing to make. It cannot be forgotten that it was made in the context of the issue of principal concern to the CVRD; that is, that the crematorium was being operated as a commercial enterprise. [ 52 ] Even if I were wrong in my conclusion that a crematorium falls neither within “institution” nor “religious facility” and, thus, is not a permitted use within zone P-1, I am satisfied that a commercial crematorium is not permitted within zone P-1.

In this regard, it is worth noting that it is not in question that the crematorium is being operated as a commercial enterprise, and an apparently very busy one, at that. [ 53 ] The CVRD bylaw draws a fundamental distinction between commercial and non-commercial uses; more specifically, the bylaw expressly provides for commercial zones.

To interpret the word “institution” within the “Parks and Institutional” zone as including a commercial crematorium would fail to recognize this legislative context, and would serve to defeat one of the fundamental purposes of the bylaw; that is, to separate commercial and non-commercial uses of the land.

I agree with the CVRD that there are valid and legitimate objectives which are met by distinguishing between these two types of usage; among them, the impacts of traffic and air pollution as relevant considerations and legitimate neighbourhood concerns. [ 54 ] I am not persuaded that the “user vs. use” distinction is apt in this context. To conclude that a zoning bylaw cannot, incidentally, limit the users of the land would be to undermine the fundamental and legitimate purpose of bylaws regulating the use of the land.

I am satisfied that to the extent that there is a user distinction arising from limiting the use to religious rites, it is incidental and reasonable in all the circumstances. [ 55 ] I am also satisfied that nothing turns on the fact that the applicant for the building permit checked the box marked “commercial” or that a building permit issued. I accept the evidence of Mr. Duncan that the application was presented as one merely to replace the existing wood-burning crematorium with a gas-fueled one, for the same very limited ceremonial purposes. The application was approved on this express understanding.

It is noteworthy that there is no evidence contradicting Mr. Duncan’s version of events, and I see no basis for doubting its veracity. In any event, the petitioners are bound by the bylaw. The mere checking of a box marked “commercial” does not relieve an applicant from compliance, nor does the issuance of a permit obtained under false pretenses. G.

Conclusions [ 56 ] The petitioners have failed to establish that the commercial crematorium in question is a permitted use within zone P-1; accordingly, there is no basis to compel the respondent to provide the documentation Consumer Protection requires for the purpose of issuing a business licence to operate the crematorium as a commercial enterprise. [ 57 ] During the course of these proceedings the parties remained at odds as to whether this matter was in the nature of: (

a) a judicial review of a decision of the CVRD; or, (

b) a simple application for mandamus . Ultimately, the petitioners took the position that this question need not be decided unless the Court was unwilling to rule on the ultimate question of whether the petitioners’ crematorium was a permitted use within zone P-1. As I have made that ruling, I am inclined to agree that the procedural issues raised by the parties are moot. In either of the suggested procedures, I am satisfied that the petitioners would fail on the substantive question raised. H. Disposition [ 58 ] The petition is dismissed. If the parties need to address costs, they may do so by written submission. “The Honourable Mr. Justice Bernard”