



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Regional District Fraser-Fort George v. Norlander,









2015 BCCA 98




Date:
20150128

Docket:
CA041780

Between:

Regional District
Fraser-Fort George

Respondent

(Plaintiff)

And

Glen Norlander and
Carmen Ottaway

Appellants

(Defendants)




Before:



The Honourable Madam Justice Garson

(In Chambers)




On appeal from:  An
order of the Supreme Court of British Columbia, dated
April 2, 2014 (
Regional District Fraser-Fort George v. Norlander
,
Victoria Docket 132936).

Oral Reasons for Judgment




Counsel for the Appellants:



J.H. Schenk





Counsel for the Respondent:



R.A. Bortolin





Place and Date of Hearing:



Vancouver, British
  Columbia

January 28, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 28, 2015








Summary:

The applicant sought leave for
directions as to whether leave is required to appeal a statutory injunction
pursuant to the Community Charter for breaching a property bylaw. The respondent
argued that the order was an interlocutory injunction, and is therefore a
limited appeal order requiring leave. Held: leave is not required. The order
made by the chambers judge was a permanent injunction and a statutory final
order, despite the language used by the chambers judge to the contrary. It was
therefore not a limited appeal order.

[1]

GARSON J.A.
:  This is an application for directions as to whether
leave to appeal is required.

[2]

To quote
A.L. Sott Financial (Newton) Inc. v. Vancouver City Savings
Credit Union
, 2000 BCCA 143, this matter comes before me in somewhat of a
procedural muddle. The plaintiff, Regional District Fraser-Fort George
(Regional District), commenced an action against the defendants and sought declaratory
and injunctive relief on a notice of application before a Supreme Court judge.

[3]

The orders sought in the notice of application included a declaration
that the appellants use of the land, buildings, and structures were being used
in contravention of the Regional Districts Bylaw No. 833. The Regional
District also sought an order restraining the appellants from continuing the
impugned use, namely using two buildings on their property for vacation
rentals.

[4]

The matter came on for hearing and the chambers judge began his reasons
with the statement, The plaintiff seeks a statutory injunction against the
defendants as an interlocutory matter in these proceedings.

[5]

The order from which the appeal is sought provides as follows:

1.         The Defendants use of the land, buildings and
structures on property legally described as Parcel Identifier 008-217-351,
Lot 3, District Lot 5676, Cariboo District Plan 24508 (the Lands) as
vacation home rentals, or for the temporary accommodation of members of the
traveling public or tourists, contravenes the provisions of the Regional
District of Fraser-Fort George Zoning Bylaw No. 833 (the Zoning Bylaw).

2.         The Defendants, their agents, servants, lessees,
employees, tenants, and anyone else with notice of this Order are prohibited
from using or permitting the use of the Lands as vacation home rentals, or for
temporary accommodation of members of the travelling public or tourists, in
contravention of the Zoning Bylaw.

3.         The Defendants, their agents, servants, lessees,
employees, tenants, contractors and anyone else with notice of this Order are
prohibited from marketing or advertising the Lands as vacation home rentals, or
for temporary accommodation of members of the travelling public or tourists, in
contravention of the Zoning Bylaw.

4.         Costs are in any event
of the cause.

[6]

In seeking directions, the appellants say that leave is not necessary
because the matter was decided as a final order. They says that the Supreme
Courts jurisdiction is spent, and by that they mean that there has been a
declaration and final remedy granted and there is nothing left to go to trial,
and therefore, the order made must be a final order. They also argue that the chambers
judges jurisdiction is derived entirely from the
Community Charter,
S.B.C.
2003, c. 26, and is not a listed limited appeal order in Rule 2.

[7]

They also argue that the first order made is clearly not an
interlocutory order in that it is a declaration. They argue that an
interlocutory injunction pursuant to the
Supreme Court Civil Rules
would
involve the application of the
RJR-MacDonald
test
(
RJR-MacDonald Inc. v. Canada (Attorney General),

[1994]
1 S.C.R. 311) and that that was not the analysis the chambers judge conducted.
The analysis conducted by the chambers judge was the statutory injunctive analysis
for which there is no discretion.

[8]

Finally, he argues that as the appeal from the
declaratory order is an appeal as of right, the orders are sufficiently linked
such that leave ought not to be required for the injunctive part of the order,
and therefore the appeal of the entire order ought to go as of right.

[9]

The Regional District opposes this application and says
that leave is required from the entire order. It points to the opening words of
the judges reasons, in which the judge says that he is hearing the matter on
an interlocutory basis. Counsel advised me that he had advised the chambers
judge in his submissions that the matter was an interlocutory application. On further
questioning by this Court, it is not clear to me whether the Regional District
conceded that all the relief that had been sought has been granted and that
there is nothing further for the Supreme Court to do if the matter were to be
returned to it.

[10]

In my view, leave is not required. In spite of the
opening words that the judge pronounced, the order under appeal was not an
interim order, it was a statutory final order. As well, the declaratory and allegedly
interlocutory orders are linked, and so I would find that leave is not required
on that basis also.

[11]

I therefore order that leave is not required. The
entire appeal may proceed as of right.

[discussion with counsel]

[12]

By consent, there will be an order that appellants appeal books and factum
will be filed by February 4, 2015.

The Honourable Madam Justice Garson


