Executive Summary: Key Legal and Evidentiary Issues

• Justice Giltrow granted a judicial review petition brought by Cowichan Valley Regional District challenging an adjudicator's decision to cancel 17 bylaw offence notices.
   
• The adjudicator had found that Pacifica 8 Systems Inc. was "using" the property in violation of the South Cowichan Zoning Bylaw's water and sewer servicing requirement.
   
• Despite this finding, the adjudicator cancelled the notices on the ground that compliance obligations rested solely with the property owner rather than the respondent lessee.
   
• Two new arguments raised by the respondent on judicial review, concerning ownership of structures as fixtures and split zoning of the property, were not considered because they had not been raised before the adjudicator.
   
• Justice Giltrow held that the adjudicator lacked authority under the Local Government Bylaw Notice Enforcement Act to cancel notices once a contravention was found to have occurred.
   
• Given the binary nature of the adjudicator's statutory jurisdiction, the court declined to remit the matter and ordered the penalties in the notices to be immediately due and payable.
   

Facts of the case

Cowichan Valley Regional District issued 17 Bylaw Offence Notices to Pacifica 8 Systems Inc. between October 2024 and March 2025, alleging ongoing contravention of section 2.2(1) of the South Cowichan Zoning Bylaw No. 3520, 2012, for carrying on a prohibited use of land. Pacifica 8 Systems Inc. disputed the notices, and a hearing was held before an adjudicator on June 25, 2025 under the Local Government Bylaw Notice Enforcement Act, S.B.C. 2003, c. 60. The Regional District attended with three staff members and had provided the respondent's counsel with an evidence package containing 50 exhibits. The respondent raised four grounds for invalidating the notices: that they were issued to an incomplete business name; that they failed to specify the contravention with sufficient detail; that there was insufficient evidence the respondent was "using" the property; and that the notices should have named other sub-lessees or the property owner instead. In reasons dated June 27, 2025, the adjudicator dismissed the first three grounds but cancelled the notices on the basis that they had been issued to a party "not legally responsible for the contravention," reasoning that the zoning requirement at issue imposed obligations resting solely with the property owner. The Regional District then sought judicial review of that decision, arguing that having found the respondent engaged in a prohibited use, the adjudicator had no authority to cancel the notices on this basis.

Policy and legislative provisions at issue

Section 21 of the Act sets out the adjudicator's authority: if satisfied a contravention occurred as alleged, the adjudicator "must order" the penalty due and payable; if satisfied it did not occur, the adjudicator "must cancel" the notice. Section 2.2(1) of the Zoning Bylaw prohibits any use of land not expressly permitted, while section 13.5(3) imposes a "condition of use" requiring that all parcels in the relevant I-1D zone be serviced by community water and sewer systems. Section 2.4 of the Zoning Bylaw provides that "any person" who violates, causes, or permits a violation of the bylaw commits an offence, without restricting liability to property owners. Section 4(3) of the Act similarly permits a notice to be issued to "a person against whom a bylaw contravention is alleged," a provision the court noted is not limited to owners or tenants under Romegioli v. Langley (Township), 2018 BCSC 1867.

Reasoning and analysis

Justice Giltrow found the adjudicator's underlying factual determination reasonable: photographic evidence of the respondent's structures and stored materials, including firewood, shelter, and a metal receptacle, supported a finding of ongoing "use" of the property within the meaning of the bylaw, consistent with the reasoning in Peace River (Regional District) v. Pringle, 2023 BCSC 1172. Two new arguments the respondent sought to raise on judicial review, that the structures were fixtures owned by the landowner under Heywood v. Songhees, 2026 BCCA 150, and that the impugned activity occurred on a portion of the property zoned RUR-1 rather than I-1D, were declined because neither had been placed before the adjudicator, consistent with the principle in Yard Investment Inc. v. Langley (Township), 2018 BCSC 1658 that judicial review is not the forum for new arguments. Turning to the core issue, the court held that the violation was the use of the property without required water and sewer servicing, not a failure to install such servicing, and that the Zoning Bylaw's section 2.4 applies to any person who violates or causes or permits a violation, not solely to owners. Having found the respondent committed the use in question, the adjudicator had no discretion under section 21 of the Act to cancel the notices on the basis of the owner's separate obligations, a jurisdiction the court described as binary in line with Peace River.

Ruling and overall outcome

The court allowed the petition for judicial review and quashed the adjudicator's decision. Citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Justice Giltrow declined to remit the matter to the adjudicator, finding that the binary nature of the statutory scheme made the outcome inevitable. The court also rejected the respondent's argument that relief should be refused or the matter remitted based on the strength of its RUR-1 zoning argument, finding no adequate explanation for why that argument was not raised at the original hearing. Cowichan Valley Regional District, the successful party, was granted an order that the penalties set out in the 17 Bylaw Offence Notices are immediately due and payable by Pacifica 8 Systems Inc. under section 21(2) of the Act. The Regional District was also awarded costs at Scale B; the judgment does not state a specific dollar figure for either the penalty amounts or the costs award.