Facts: The City of Kelowna (plaintiff) and 1004364 BC Ltd. (defendant) were involved in a legal dispute over a statutory right of way. The City sought declarations that the defendant was in breach of this right and requested a permanent injunction to prevent obstruction of public use. The defendant countered, arguing the statutory right of way was invalid and unenforceable.
Issue: The central issue was the validity of the statutory right of way, specifically whether it covered the land or the boardwalk constructed over it, and whether there were obligations for maintenance.
Court's Ruling: The Supreme Court of British Columbia held the statutory right of way was valid. It concluded the right of way covered the land, not the boardwalk, thus no permanent injunction was ordered. It found no positive covenants or obligations for the owner to maintain the boardwalk within the right of way area. The court dismissed the owner's claim for a declaration that the Instrument was invalid and unenforceable.
Costs/Damages Awarded: The City was substantially successful and entitled to its costs of the trial. The City was awarded costs of the application resulting in the October 13, 2021 order, while the owner was awarded costs for the application leading to the December 8, 2021 order. Each party bore their own costs for the application resulting in the June 21, 2022 order.
