Continued Construction in a Building Bylaw Prosecution

The Dispute

Bylaw officers searched a residential property in British Columbia under a warrant and found improvements built without building permits, including an added bedroom, a kitchen and sundeck, a pool, a garden suite and a storage building. Nine charges followed: five for construction without a permit, and four under the zoning bylaw over the storage building, a lot said to hold more than one dwelling where only a single family home was allowed, an occupied basement suite and a second kitchen. The owner pleaded not guilty and called no evidence.

The Parties’ Positions

The municipality’s case on the permit charges was that the improvements were built while the owner held title and still stood on the day of the search, which established continued construction. It read the words commence or continue any construction so that continue added something to construction. It relied as well on a 2019 decision of the Supreme Court of British Columbia describing unpermitted building as a continuing violation of the requirement to obtain a permit, and on section 98 of the Offence Act for the charges that carried an exemption.

The owner conceded identity, jurisdiction, the absence of any permit, and that a secondary suite would have required one. The defence was that the prohibition is active in intent, so the municipality had to prove the owner was engaged in construction on or about the date charged. Both the manager of inspections and the attending bylaw officer agreed no construction was under way that day. The owner also put the municipality to proof of when each improvement was built, title having passed to another person between 2000 and 2016. The inspector’s evidence on permits and setbacks was said to be conclusory opinion the same court had declined to act on earlier in 2025.

The Court’s Decision

Reading the bylaw in context, the court noted that construct was defined to include building, altering, adding, enlarging, relocating, demolishing, removing and excavating, among other acts, a definition conveying active rather than passive conduct. The word continue took its meaning from commence and did not qualify construction, so the provision prohibits unpermitted construction as defined. The 2019 authority did not support that reading, its reasoning having gone to a continuing requirement to obtain a permit rather than to continued construction. No construction was active on or about the date charged, so the five permit charges were not proven.

The court decided the remaining elements in case that interpretation was wrong. Ownership at the time of construction was not required, because the provision deeming an owner to know of construction on the parcel must be read with the one excusing an owner who establishes that the construction predated their ownership. Only the storage building was proven to have been built while the owner held title, on the evidence of a former friend and tenant whose acknowledged enmity did not lead the court to disbelieve him. The pool charge failed because the evidence did not establish beyond a reasonable doubt that the decking or plumbing required a permit, and the zoning charge over the storage building failed for want of measurements. The basement suite and the garden suite were each designed or intended for occupancy as separate living quarters with cooking, sleeping and sanitary facilities, so those two charges were proven, and the second kitchen charge was stayed to avoid multiple convictions.

Key Lessons for Homeowners and Municipal Prosecutors

• Charge the conduct the bylaw prohibits, on a date the evidence supports. The acquittals on the permit charges followed from the absence of active work on the day alleged, not from a finding that the improvements were permitted.
• Prove when the work was done, not only that it exists. Only the storage building was tied to a year the owner held title, and a statement attributed to former counsel about the garden suite was double hearsay the court would not convict on.
• An inspector’s conclusion is not evidence of the standard behind it. The permit requirement for the pool decking and the setback breach alleged for the storage building both failed for want of the underlying facts, measurements and standards.
• An exemption drafted as an exception shifts the burden. Section 98 puts the burden of proving an exception, exemption, proviso, excuse or qualification on the defendant, which the owner did not discharge on the storage building or the second kitchen.

These reasons decided the charges and not the penalty. The outcome turned on how the counts were framed and on the evidence led at trial, and a similar prosecution may resolve differently.

ATAC LAW acts for property owners and for municipalities in bylaw prosecutions and permitting compliance.

This matter was conducted by ATAC LAW, whose practice includes the defence of regulatory and criminal charges.