Background:
This case concerned a dispute over a statutory right of way along the Okanagan Lake foreshore, granted by a prior owner of Hotel Eldorado's land to the City of Kelowna. The City sought injunctive relief to maintain public access to a boardwalk in the right of way. 1004364 BC Ltd. (current landowner) challenged the validity of the right of way, arguing it imposed unenforceable positive obligations.

Legal Issues and Arguments:
The main issue was whether the statutory right of way was enforceable despite containing positive covenants, which generally do not run with the land under British Columbia property law. The appellant (1004364 BC Ltd.) argued that unenforceable covenants rendered the entire instrument invalid. The respondent (City of Kelowna) contended that the valid portions remained enforceable. The trial court upheld the validity of the non-positive covenants, prompting the appellant’s appeal.

Decision:
The British Columbia Court of Appeal dismissed the appeal. It held that the trial judge correctly interpreted the right of way instrument as enforceable despite the unenforceability of certain positive covenants. The valid clauses remained independent and enforceable. The court emphasized that the right of way pertained to the land, not the boardwalk structure, and did not impose undue obligations on the appellant.

Outcome:
The City of Kelowna was successful in maintaining the enforceability of the statutory right of way. The document did not specify the total amount of costs or awards granted to the City.