Court orders City of Kelowna to renew business licence it had illegally revoked
The B.C. Supreme Court has reinstated a business licence and ordered the City of Kelowna to pay the business owner's court costs after determining that the city acted illegally when it revoked the licence last year.
In his reasons for his decision, Justice Gordon C. Weatherill wrote that Greg Wise, the city's business licensing manager, had overstepped his legal authority in deciding not to renew the licence without consulting the city council first.
The business in question in the case was M. Weiss Masonry, Inc., which has operated as a home-based business from a farm located in the Agricultural Land Reserve since 1995. The business owner, Martin Weiss, also farms the land.
City bylaws allow home-based businesses on ALR-zoned properties, but only if the business is secondary to the residential use of the property and - in the case of the licence class Weiss applied for - is not "detectable from outside the property."
In November 2015, according to Weatherill's decision, city bylaw inspectors "took photographs of numerous vehicles, pieces of equipment, materials, wooden pallets and other objects, all indicative of commercial business activities being conducted on the property."
The city issued bylaw offence notices to Weiss the following year, though he denied receiving them until November 2017, when they came with a cover letter from the city indicating that his business licence was being reviewed.
Weiss met with city officials in May 2018 to discuss the bylaw offences, and the notices against him were put "on hold," according to Weatherill.
"Between May 2018 and December 2020, city officials met with representatives of the (Agricultural Land Commission) and monitored from afar whether adequate steps were being taken by (Weiss) to remedy the situation on the Property," the justice wrote in his decision.
"However, the City had no further discussions or communications with (Weiss or his business) of any kind until December 2020."
At that time, the city wrote to Weiss advising him that his business licence would not be renewed for 2021.
"The letter, signed by Mr. Wise, was sent before the petitioner had submitted any application, document, request, or fee to renew its existing licence," Weatherill wrote.
While the Wise's role has the "delegated authority" to determine whether an initial business licence should be granted, Weatherill wrote, the position does not have the authority to revoke a licence or decide not to renew it. That requires the city council's approval.
Under Kelowna's Business Licence Bylaw, a business renews its licence annually by submitting its $25 renewal fee before a specified renewal date. In the case of M. Weiss Masonry, the city had renewed the company's licence through this process every year since 1995, including every year between 2015 and 2020, after the alleged bylaw offences began.
In his decision, Weatherill wrote that the city "was well aware" of the proper procedure for cancelling a business licence, as evidenced by its 2017 letter to Weiss, which read, in part:
"Your business licence 29868 is now under review by the Business Licence Manager, Greg Wise, and without full cooperation and compliance your business licence will be reviewed by City Council requesting it be cancelled."
The justice added that the question of whether the masonry business was truly violating the city's bylaws - though not essential to his decision on the matter - was an open one.
Weatherill wrote that the city's reasoning for desiring to cancel the licence was "speculation in the extreme."
"They did not provide any evidence contradicting (Weiss') evidence regarding the business use of the property and sought to justify the reasonableness of their actions by reliance on nothing other than assumptions, conjecture and inadmissible hearsay," he wrote.
"Had Mr. Wise taken the time to communicate with (Weiss) about (the business') use of the property in 2020 instead of relying on information from years past and acting out of frustration, there may well have been a basis for a determination that a revocation of the ... business licence was reasonable."
Weatherill awarded Weiss court costs and ordered that his business licence be renewed according to the usual process.
The justice noted, however, that his decision did not usurp the city's authority to revoke the business licence in the future for a legitimate reason under its bylaws.
CTVNews.ca Top Stories
Quebec nurse had to clean up after husband's death in Montreal hospital
On a night she should have been mourning, a nurse from Quebec's Laurentians region says she was forced to clean up her husband after he died at a hospital in Montreal.
Northern Ont. lawyer who abandoned clients in child protection cases disbarred
A North Bay, Ont., lawyer who abandoned 15 clients – many of them child protection cases – has lost his licence to practise law.
Bank of Canada officials split on when to start cutting interest rates
Members of the Bank of Canada's governing council were split on how long the central bank should wait before it starts cutting interest rates when they met earlier this month.
Maple Leafs fall to Bruins in Game 3, trail series 2-1
Brad Marchand scored twice, including the winner in the third period, and added an assist as the Boston Bruins downed the Toronto Maple Leafs 4-2 to take a 2-1 lead in their first-round playoff series Wednesday
Cuban government apologizes to Montreal-area family after delivering wrong body
Cuba's foreign affairs minister has apologized to a Montreal-area family after they were sent the wrong body following the death of a loved one.
'It was instant karma': Viral video captures failed theft attempt in Nanaimo, B.C.
Mounties in Nanaimo, B.C., say two late-night revellers are lucky their allegedly drunken antics weren't reported to police after security cameras captured the men trying to steal a heavy sign from a downtown business.
What is changing about Canada's capital gains tax and how does it impact me?
The federal government's proposed change to capital gains taxation is expected to increase taxes on investments and mainly affect wealthy Canadians and businesses. Here's what you need to know about the move.
New Indigenous loan guarantee program a 'really big deal,' Freeland says at Toronto conference
Canada's Deputy Prime Minister Chrystia Freeland was among the 1,700 delegates attending the two-day First Nations Major Projects Coalition (FNMPC) conference that concluded Tuesday in Toronto.
'Life was not fair to him': Daughter of N.B. man exonerated of murder remembers him as a kind soul
The daughter of a New Brunswick man recently exonerated from murder, is remembering her father as somebody who, despite a wrongful conviction, never became bitter or angry.