Victoria Marine Tourism Association, Skyhopper Whale Watching Tours Ltd., Cuda Marine Inc., Sybarite Investments Ltd., Enchanted Tours of Victoria Ltd., v. Springtide Charters Ltd., 2003 BCCA 204

Court of Appeal for British Columbia Citation: Victoria Marine Tourism Association et al , 2003 BCCA 204 Date: 20030325 Docket: CA029351 Between: Victoria Marine Tourism Association, Skyhopper Whale Watching Tours Ltd., Cuda Marine Inc., Sybarite Investments Ltd., Enchanted Tours of Victoria Ltd., and Springtide Charters Ltd. APPELLANTS (Plaintiffs) And The Corporation of the City of Victoria RESPONDENT (Defendant) Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Huddart The Honourable Madam Justice Saunders Oral Reasons for Judgment D.J. Mildenberger Counsel for the Appellants G.E.

McDannold Counsel for the Respondent Place and Date: Victoria, British Columbia March 25, 2003 [ 1 ] SAUNDERS J.A.: This case concerns a portion of a bylaw of the City of Victoria which permitted the appellant Victoria Marine Tourism Association to run a kiosk on the sidewalk of Government Street where it sold tickets for sightseeing tours, and the application of a second bylaw repealing that provision. [ 2 ] Madam Justice Humphries held, in these Judicial Review Procedure Act proceedings, that the second, repealing, bylaw applied to the appellant, Victoria Marine Tourism Association.

As a result, it has lost its kiosk presence at that Government Street site. The other appellants are the corporations, I believe, whose tickets were sold at the kiosk, so they too have been affected by the decision. [ 3 ] The appellants contend that Victoria Marine Tourism Association is a non-conforming use under Division 7 of the Local Government Act and, thus, that the repeal of the bylaw provision does not apply to them. [ 4 ] The City of Victoria contends that the bylaw in question is not a zoning bylaw and, hence, says the non-conforming use provisions of the Local Government Act do not apply.

It says the authority for the bylaw is s.9 of the Victoria City Act 1934 . [ 5 ] The bylaw provisions which authorize the kiosk first appeared as 86-22, which provided that an organization by the same name as the appellant, Victoria Marine Tourism Association, could have the kiosk presence. That Association was dissolved in 1990. In 1997, Bylaw 86-22 had been subsumed into Bylaw 96-27. That bylaw is entitled "Vehicles for Hire" and is stated to be: A BYLAW OF THE CITY OF VICTORIA

to consolidate the Pedicab, Sightseeing Vehicles and Tours and Taxi Bylaws, to make them consistent with other legislation, and to include new amendments to the Pedicab and Sightseeing Vehicles and Tours Bylaws. The bylaw sets out its statutory authority in these terms: Under its statutory powers, including the Municipal Act; Victoria City Act, 1907; 1919 and 1934; and the Motor Vehicle Act, the Municipal Council of The Corporation of the City of Victoria enacts the following provisions:

Section 3 of that bylaw addresses "Sightseeing Vehicles", their licensing, the regulation of horse-drawn sightseeing vehicles, and contains the provisions in issue here, which are provisions said to be for the use of street parking, sales and special events.

Section 3.16 provided: 3.16

(1) A person may use a street, including a sidewalk, to advertise, offer tickets for sale for or otherwise promote a sightseeing tour only if that is done in accordance with this section.

(2) A person must not advertise, offer tickets for sale or otherwise promote a sightseeing tour (

a) verbally or by distribution of literature, carrying a placard or using a recorded picture; and (

b) by leaving or keeping a placard, sandwich board, ticket booth or other object on a street, including a sidewalk, for the apparent purpose of advertising, selling or promoting a sightseeing tour.

(3) For the purpose of advertising and offering tickets for sale for sightseeing tours ... (

d) Victoria Marine Tourism Association (

i) may place, use and maintain a kiosk on the sidewalk within the area on the west side of Government Street a distance of 10.6 m measured northerly from a point 93.2 m north of the north property line of Belleville Street; and (ii) must not place that kiosk where it interferes with pedestrian traffic on the sidewalk.

Section 3.16(3)(

d) at some point became, in much the same form, s.316(4), which is in issue in this case. [ 6 ]

Section 9 of the Victoria City Act referred to in the bylaw provides: 9 . Notwithstanding the provisions of the "Municipal Act" or of any other Statute or law to the contrary, the Council shall have power from time to time to make, alter, and repeal by-laws for any of the following purposes, namely:- ...

For regulating, prohibiting, and limiting the methods and places of canvassing for vehicles for hire, and in relation to the above matters for preventing noise, confusion, anddisturbance of the peace in such manner as to the Council as enacted in and by any such by-law may seem expedient; [7] The appellant, Victoria Marine Tourism Association, was incorporated in February 2000 to take advantage of the provisions ofs.3.16(4) in the bylaw.

The appellants, as I said, contend that Victoria Marine Tourism Association uses the kiosk as a non-conforminguse and, in answer to the City's submission on s.9 of the Victoria City Act, say that s.9 is not applicable to terminate the use it enjoyedunder the now repealed bylaw. [8] Despite the very able submissions of counsel for the appellants, I do not agree. This is for two reasons.

Firstly, Humphries J.found as to the non-conforming use issue: I have considered the zoning sections and the policy arguments advanced in support of the plaintiff's contention that the kiosk shouldbe allowed to remain as a non-conforming use. I am not prepared to extend the protection of non-conforming uses for private landholders under zoning bylaws to this kiosk. In my view, that approach is correct. The land involved here is public land, in fact a "highway" within the definition of the LocalGovernment Act, and the appellants' interest is simply not a property interest. In these circumstances,

Part 7 of the Local GovernmentAct does not apply. Secondly, and equally conclusive, the bylaw is clearly passed under s.9 of the Victoria City Act. That sectionpermits the City to repeal s.3.16(4) of the bylaw notwithstanding anything contained in the Local Government Act. This means, in myview, that s.3.16(4) ceased to permit Victoria Marine Tourism Association to maintain its presence at the kiosk once the repealing bylawwas lawfully enacted. The result is that s.3.16(2) of that bylaw, which is earlier set out, applies to the Association and prohibitsoperation of the kiosk. [9] The principles of statutory

interpretation are well known. I refer to Rizzo & Rizzo Shoes Ltd. (Re:), (SCC),[1998] 1 S.C.R. 27, referring to E.A. Dreidger in Construction of Statutes 2nd ed. 1983 p.87. I consider the bylaw provision in issue iswell within the words of s.9 of the Victoria City Act, which permits a bylaw to regulate, prohibit or limit the method and places ofcanvassing of vehicles for hire. [10] It follows that I would dismiss the appeal, with costs to the City. [11] DONALD J.A.: I agree. [12] HUDDARD J.A.: I agree. [13] DONALD J.A.: The appeal is dismissed. “The Honourable Madam Justice Saunders”