Court ruling against Kelowna agri-tourism bylaw a “sideshow” in fight against bad operators

KELOWNA – A judge’s ruling that has invalidated Kelowna’s agri-tourism bylaw for lack of proper legal advertising is “a sideshow” to the real issue of improper use of agricultural land, Kelowna’s city clerk says.

Stephen Fleming said the court ruling chiding the city for failing to adequately advertise a public hearing into amendments to the bylaw will not stop the city’s action against the defendants, Surinder and Seema Khurana.

This week, B.C. Supreme Court Justice Dev Dley ruled the agri-tourism bylaw amendments made by city council in 2010 were invalid, however Fleming says much of the language in question was taken out of the bylaw in 2016 by the current city council.

Even then, the court ruling would only apply to those with an A1t designation, Fleming said, which includes the Kharunas and other targets of bylaw enforcement actions.

“Some of the things it speaks to isn’t even in the bylaw anymore,” Fleming added.

The real issue in this case, Fleming said, was a bid by the Kharunas to be grandfathered into the bylaw as it was written in 2010.

“For them to enjoy the grandfathering protection, which is what this court case is about, they have to prove they met the regulations as they existed before this bylaw and have continued to do so since,” he added.

Fleming said the ruling that the city did not properly advertise the public hearing where the amendments where made came as part of the Kharunas defence and serves as a “good reminder” for the city to more carefully consider how it meets its statutory obligation to advertise potential bylaw changes.

Billing the changes to the bylaw as "housekeeping amendments" is what drew the wrath of Justice Dley, although Fleming denied it was an attempt to pass the amendments without opposition.

“Certainly, that was never our intent. Maybe housekeeping isn’t the best way to describe some of these things,” Fleming admitted. “It’s a good reminder about how we use the term internally might be different than how it’s understood, certainly by the court.”

Fleming said the city’s planning department is reviewing the bylaw and the definitions it contains with the aim of correcting any flaws through another public hearing, should it be required.

He said he lacked the legal knowledge to say whether the ruling opens up to legal challenges other City of Kelowna bylaws that may have been enacted using the same advertising protocol.

“It would be case-specific,” Fleming added. “I don’t want to guess the answer to that.”

Dley’s ruling also awarded court costs to the Kharunas but Fleming said he did not know what that would amount to.

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