Crematorium wins appeal for commercial use

Stating that the Cowichan Valley Crematorium is an "institution" that serves public needs, and is permitted under current zoning regulations, the provincial Court of Appeal overturned a Supreme Court decision from fall of 2013 stating that commercial use of the crematorium was not allowed.

"The [zoning] bylaw did not distinguish between commercial and non-commercial institutions," Judge Risa Levine said in the summary of her decision on Tuesday. Located on land owned by the Paldi Khalsa Diwan Society, the crematorium dates back to the 1960s, when it was built to serve the Cowichan Valley’s South Asian Community. In 2010, the society applied for a building permit to replace the old wood-burning ceremonial operation with a modern gas-fired crematorium. The permit was granted, but unbeknownst to the Cowichan Valley Regional District, the operators began using the facility for commercial purposes, which the CVRD felt contravened its P-1 (Parks and Institutional) zoning.

When Consumer Protection BC, which licenses crematoriums, first issued the licence in 2011, operators were told to provide documents from the Cowichan Valley Regional District indicating that a commercial crematorium was proper use of the site – a standard requirement of any crematorium licence.

When operators failed to provide the documents by September 2012, Consumer Protection BC suspended the commercial licence. The company chose to appeal, and the suspension was stayed. In the meantime, the BC Supreme Court ruled last fall that the presence of a commercial crematorium on the land went against zoning rules.

The latest decision is the result of an appeal of that ruling.

CVRD Manager of Development Services Ross Blackwell said he was "quite surprised" by the Court of Appeal’s ruling.

"It was very unexpected," he said. "It is quite a concern for me in relation to the direction that the Court of Appeal went, which was in the very opposite direction of the interpretation of the B.C. Supreme Court."

Ceremonial use of the crematorium was never affected by the court cases, as that has been covered by a separate licence.

In addition to allowing the appeal, Levine ordered the CVRD to provide a document confirming that the crematorium is a permitted use under the zoning bylaws, and that the site and building plans have been approved.

"We were quite taken aback," Area E Director Loren Duncan said.

"For all practical purposes, the court told us that we haven’t a clue what we’re doing, and that we don’t know what our bylaws mean and we don’t know what our intentions are when we write things down, so we’re getting a lesson in that regard."

Duncan noted that the decision could have an impact on the autonomy of all local governments in B.C. "It’s profound with its precedent," he said. "It affects all local governments in a serious fashion, in a changing fashion. On a micro level, it’s about a crematorium. On a macro level, its about having the jurisdiction and ability to enforce bylaws."

If the CVRD opts to pursue the case further, its next step would be the Supreme Court of Canada.