Application of Municipal By-law prohibiting mooring - By-law In applicable - Interjurisdictional Immunity - Public Right of Navigation - Right to Anchor
West Kelowna (District) v. Newcombe, 2013 BCSC 2299 2015 BCCA 5
http://canlii.ca/t/g2ck4 http://canlii.ca/t/gfvn7
Précis: The British Columbia Court of Appeal affirmed the decision of the Trial Judge (2013 BCSC 1411) that anchoring/mooring was a core element of Federal jurisdiction over navigation and shipping and a municipal by-law prohibiting mooring was constitutionally inapplicable pursuant to the doctrine of interjurisdictional immunity to the extent it prohibited temporary moorage.
Facts: The plaintiff, the District of West Kelowna, passed a bylaw in 2009 that permitted only “temporary boat moorage accessory to the use of the immediately abutting upland ... parcel”. The defendant/respondent, who did not own any “upland parcel”, moored his house boat in an area governed by the bylaw until he was issued a notice to relocate. He then moved his house boat to another anchorage that was also within the area governed by the bylaw. The plaintiff then brought these proceedings for an injunction against the defendant and any other person with notice of the order. The defendant challenged the constitutional validity of the bylaw.
At first instance (2013 BCSC 2299), the trial Judge held that, although constitutionally valid, the bylaw had to be read down so as not to prohibit temporary moorage which was within the protected core of exclusive federal constitutional jurisdiction over “navigation and shipping”. The trial Judge nevertheless held that the defendant was in breach of the bylaw as his moorage was not temporary. Both parties appealed.
Decision: Appeal dismissed.
Held: The trial Judge correctly held that the purpose and pith and substance of the impugned bylaw were to regulate land use including land use of the foreshore. “Land use” is inherently local and within the constitutional jurisdiction of a province under s. 92(13) [Property and Civil Rights] and s. 92(16) [Matters of a merely local or private Nature] of the Constitution Act. But the double aspect doctrine is also applicable. The trial Judge was correct in addressing “the ambit of moorage rights incidental to navigation as part of the interjurisdictional immunity analysis” and correctly read down the impugned provisions. The defendant relies upon Ordon v Grail, [1998] 3 S.C.R 437, for the proposition that it is constitutionally impermissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. However, Ordon v Grail was overturned by the Supreme Court in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44.
Comment: It might not be entirely correct to say, as the Court of Appeal did, that Ordon v Grail was overturned by Marine Services International Ltd. v. Ryan Estate. Although the analysis and tests used in Ordon v Grail have clearly been modified by Ryan Estate (and Canadian Western Bank v. Alberta, 2007 SCC 22 and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23) the Supreme Court of Canada has been careful to not expressly overturn the holding in Ordon v Grail that maritime negligence law is subject to interjurisdictional immunity.
West Kelowna (District) v. Newcombe, 2013 BCSC 2299 2015 BCCA 5
http://canlii.ca/t/g2ck4 http://canlii.ca/t/gfvn7
Précis: The British Columbia Court of Appeal affirmed the decision of the Trial Judge (2013 BCSC 1411) that anchoring/mooring was a core element of Federal jurisdiction over navigation and shipping and a municipal by-law prohibiting mooring was constitutionally inapplicable pursuant to the doctrine of interjurisdictional immunity to the extent it prohibited temporary moorage.
Facts: The plaintiff, the District of West Kelowna, passed a bylaw in 2009 that permitted only “temporary boat moorage accessory to the use of the immediately abutting upland ... parcel”. The defendant/respondent, who did not own any “upland parcel”, moored his house boat in an area governed by the bylaw until he was issued a notice to relocate. He then moved his house boat to another anchorage that was also within the area governed by the bylaw. The plaintiff then brought these proceedings for an injunction against the defendant and any other person with notice of the order. The defendant challenged the constitutional validity of the bylaw.
At first instance (2013 BCSC 2299), the trial Judge held that, although constitutionally valid, the bylaw had to be read down so as not to prohibit temporary moorage which was within the protected core of exclusive federal constitutional jurisdiction over “navigation and shipping”. The trial Judge nevertheless held that the defendant was in breach of the bylaw as his moorage was not temporary. Both parties appealed.
Decision: Appeal dismissed.
Held: The trial Judge correctly held that the purpose and pith and substance of the impugned bylaw were to regulate land use including land use of the foreshore. “Land use” is inherently local and within the constitutional jurisdiction of a province under s. 92(13) [Property and Civil Rights] and s. 92(16) [Matters of a merely local or private Nature] of the Constitution Act. But the double aspect doctrine is also applicable. The trial Judge was correct in addressing “the ambit of moorage rights incidental to navigation as part of the interjurisdictional immunity analysis” and correctly read down the impugned provisions. The defendant relies upon Ordon v Grail, [1998] 3 S.C.R 437, for the proposition that it is constitutionally impermissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. However, Ordon v Grail was overturned by the Supreme Court in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44.
Comment: It might not be entirely correct to say, as the Court of Appeal did, that Ordon v Grail was overturned by Marine Services International Ltd. v. Ryan Estate. Although the analysis and tests used in Ordon v Grail have clearly been modified by Ryan Estate (and Canadian Western Bank v. Alberta, 2007 SCC 22 and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23) the Supreme Court of Canada has been careful to not expressly overturn the holding in Ordon v Grail that maritime negligence law is subject to interjurisdictional immunity.
