IN THE SUPREME COURT OF BRITISH COLUMBIA
| Citation: |
B.C. Ferry Services Inc. v. Tsawwassen Rental Connection Ltd., |
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2004 BCSC 982 |
Date: 20040721
Docket: No. L041737
Registry: Vancouver
Between:
British Columbia Ferry Services Inc.
Plaintiff
And
Tsawwassen Rental Connection Ltd.
Defendant
Before: The Honourable Madam Justice Allan
Reasons for Judgment
| Counsel for the plaintiff: |
William K. McNaughton and
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| Counsel for the defendant: |
Ulf K. Ottho |
| Date and place of hearing: |
July 14 & 15, 2004 |
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Vancouver, B.C. |
Background
[1] The plaintiff (“B.C. Ferries”) seeks an interlocutory injunction preventing the defendant, who operates “Park and Go”, a parking business for ferry customers, from entering the lands leased by the plaintiff at the Tsawwassen Ferry Terminal (the “Tsawwassen Terminal”) in order to discharge and pick up the defendant’s passengers.
[2] B.C. Ferries, formerly a Crown corporation called the B.C. Ferry Corporation operating under the Ferry Corporation Act, R.S.B.C. 1996, c. 137, was converted to an independent, regulated company in April 2003, pursuant to the Coastal Ferry Act, S.B.C. 2003, c. 14 (“CFA”). Its principal business is to transport vehicles, passengers and goods by ferry in B.C. The Tsawwassen Terminal, which is located on lands at Roberts Bank, near the City of Delta, is accessed by a man-made causeway (the “Causeway”) and extends approximately 4 kilometres into the Straight of Georgia (collectively, the “Property”). Ferry users travel along Highway 17 and the Causeway into the terminal area.
[3] Since April 2003, the Property has been owned in fee simple by the British Columbia Transportation and Financing Authority (“BCTFA”) and leased to B.C. Ferries pursuant to a Lease dated April 1, 2003. At that time, the Ferry Corporation Act was repealed and replaced by the CFA (s. 19).
[4] There are approximately 1,200 pay parking spaces at the Tsawwassen Terminal, divided into short-term parking near the Departures and Arrivals Wing of the administration building (200 spaces); long-term parking (700 spaces); and economy parking (300 spaces). Since November 2003, B.C. Ferries has contracted the Imperial Parking Corporation of Canada (“Impark”) to operate its pay parking services. The cost of parking in the economy lot is $9 for a 24-hour period; it costs $15 for a 24-hour period in the long-term parking lot.
[5] There are two designated “drop off” areas in front of the Departures and Arrivals Wing. There is no charge for vehicles stopping in those areas to pick up or discharge passengers but a three-minute maximum stop is strictly enforced.
[6] Large tourist buses and coaches stop behind a B.C. Transit bus stop located in front of the Departures and Arrivals Wing. Neither the commercial buses nor B.C. Transit are charged a fee to discharge or pick up passengers.
[7] There are two designated stalls for taxicabs directly outside the Departures and Arrivals Wing. Two local taxi companies each pay $300 per month and have the right to “park” in those stalls awaiting business. Other taxis can pick up and discharge passengers without paying a fee.
[8] Since June or July 2003, the defendant has operated a business named “Park and Go”. The business consists of a pay parking lot on land leased from Mr. Frederick Jacobs, a member of the Tsawwassen Indian Band reserve, and a shuttle bus service between the Park and Go lot and the Tsawwassen Terminal. The defendant charges a parking fee of $7 for a 24-hour period and provides a free shuttle service.
[9] From approximately May 1993 until March 2003, Mr. Jacobs operated a similar business named “Park and Sail” in that location. Ironically, it was the B.C. Ferry Corporation that instigated that operation in 1993. At that time, the smaller parking lot at the Tsawwassen Terminal was frequently full and ferry patrons parked their cars along the sides of the Causeway between the terminal and Highway 17. The Park and Sail service ferried customers from the “overflow lot” to the terminal.
[10] The parties disagree as to the degree of similarity between the two enterprises. In any event, they are separate entities and Mr. Ottho is incorrect when he characterizes Park and Go as a legal “successor” to Park and Sail.
[11] The defendant has two leased buses that transport passengers and their luggage from the Park and Go lot, along Highway 17, down the Causeway, along the road by the parking areas in the Terminal, and to the Departures and Arrivals Wing at a spot that was, until recently, marked “Park and Go”. B.C. Ferries alleges that one of the defendant’s buses enters the Property approximately four times per hour between 6:00 a.m. and 9:00 p.m. and remains stopped in that area from between one and 45 minutes. The defendant asserts that it only enters the Property twice an hour and remains stopped for a maximum of three minutes at any one time.
[12] Park and Go carried on its business without incident or complaint from the plaintiff from June or July 2003 until February 2004. At that time, B.C. Ferries authorized Impark to demand that the defendant pay a monthly fee of $6,000 for the right to enter the Property “to conduct its business”. Negotiations between the parties to agree to a monthly fee failed. B.C. Ferries rejected the defendant’s offer to pay a monthly fee of $600.
[13] In June 2004, B.C. Ferries made a further demand that the defendant pay monthly fees of $2,500 during the “peak” months of May to September and $1,500 in the other months. The defendant refused to pay those fees. On July 6, 2004, B.C. Ferries notified Park and Go that it was a trespasser and must cease conducting its business operations on the Property. On July 9, 2004, the plaintiff commenced an action for trespass.
[14] B.C. Ferries complains that the defendant continues to enter the Property to carry on commercial operations without its consent and that any implied licence was revoked by the written notices in February and June 2004.
[15] B.C. Ferries asserts its right as Lessee of the Property to distinguish between ferry users and persons who enter the Property for the purpose of operating a business. The former are welcome; the latter are not.
[16] The defendant asserts that as a member of the public, it is entitled to access the Property, and, specifically, to use the Causeway and the road that circles around the parking lots in front of the administration building, without interference from B.C. Ferries. The parties vehemently disagree as to whether that road access constitutes a public highway.
The relevant law relating to injunctions
[17] The Supreme Court of Canada described the three-part test to be applied in determining whether to grant an interlocutory injunction in RJR-MacDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385:
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[18] Mr. McNaughton, counsel for the plaintiff, submits that the general test does not apply in trespass cases. Several cases support the proposition that once an applicant establishes that his or her property rights are being wrongfully interfered with by another and the other party intends to continue the wrong, an injunction should issue without regard to the remaining parts of the general test: Terbasket v. Harmony Co-ordination Services Ltd. (2003), 28 C.P.C. (5th) 364, 2003 BCSC 17; Paul v. Canadian Pacific Ltd. (1983), 2 D.L.R. (4th) 22, 50 N.B.R. (2d) 126 (C.A.) (temporary injunction imposed), appeal allowed by Supreme Court of Canada [1988] 2 S.C.R. 654 (permanent injunction imposed); Patel et al. v. W.H. Smith (Eziot) Ltd., [1987] 1 W.L.R. 853 (Eng. C.A.); and John Trenberth Ltd. v. National Westminster Bank Ltd. (1979), 39 P. & C.R. 104 (Ch.).
[19] For example, in Patel, supra, Lord Justice Balcombe stated, at 858:
It seems to me that, first, prima facie a landowner, whose title is not in issue, is entitled to an injunction to restrain trespass on his land whether or not the trespass harms him.
[20] Because that maxim applies equally to a lessee lawfully in possession of premises, B.C. Ferries asserts that its property rights as a tenant of the Property are sacrosanct and it is entitled to determine who can, and who cannot, enter, the Property.
[21] The plaintiff concedes that the Court may consider the potential hardship to the defendant by the imposition of injunctive relief in a trespass case in two “exceptional circumstances”: (1) if the trespass is of a temporary or trifling nature; and (2) if the defendant demonstrates that it has an “arguable case” that the activities that would otherwise constitute trespass are justified.
[22] Mr. McNaughton cites Patel, supra, for the proposition that the burden of establishing an arguable case, which lies on the defendant, is not met when there are equally possible explanations for the activities, such as prior toleration and licence by the owner or tenant in possession. Even if the defendant does meet the burden, then appropriate relief may still be given to the property owner: Terbasket, supra. In that case, the plaintiffs were status Indians who held certificates of possession over reserve lands and leased part of those lands to a company that in turn subleased to the defendants who had built homes on the lands. The head lease was terminated after the company defaulted in payment of the rent and the plaintiffs sought an injunction requiring the defendants to give up possession of their properties pending trial of issues relating to allegations of agreements between the parties and equitable claims. Madam Justice Quijano determined that the plaintiffs were entitled to an interlocutory injunction but, in view of the substantial investment made by the defendants, that injunction was stayed on certain conditions, including the payment of arrears and rents to the plaintiffs.
[23] Mr. McNaughton submits that Park and Go’s continuing trespass is neither temporary not trifling and that there is no arguable case that its activities constitute anything other than a trespass. He says that any implied licence was terminated by the notices given to the defendant in February and June 2004. Thus, he says, the issues of balance of convenience and irreparable harm do not arise.
[24] In my opinion, the basic facts in the cases relied upon by the plaintiff are wholly distinguishable from those in the case at bar. The sacrosanct rights of a private landowner to enjoy his or her land without interference are hardly comparable to the rights and obligations of an entity (indeed a monopoly) providing a public service.
[25] Mr. Ottho, counsel for the defendant, relies on Lytton Indian Band v. Hell’s Gate Enterprises Ltd. (1985), 22 D.L.R. (4th) 568, [1985] B.C.J. No. 2993 (Q.L.) (S.C.), result reversed (1987), 20 B.C.L.R. (2d) 29, 45 D.L.R. (4th) 677 (C.A.), for the proposition that where a defendant establishes that the road in question was a public road, the onus shifts to the plaintiff to prove that public rights were extinguished upon “clear irrefragable evidence” (¶23). Although the result in that case was overturned on appeal on the basis that the trial judge misinterpreted a crucial piece of evidence, that legal proposition was not questioned.
Is the road access through the Property a public highway?
[26] Mr. Ottho submits that the Causeway and the road through the Property constitute a public highway as defined in the Highway Act, R.S.B.C. 1996, c. 188. Section 1 defines “highway” as:
“highway” includes all public streets, roads, ways, trails, lanes, bridges, trestles, ferry landings and approaches and any other public way.
[emphasis added]
[27] Section 2 of the Highway Act provides that, with the exception of certain trails, “all roads, other than private roads, are deemed to be common and public highways”. Section 4(1) deems certain roads to be public highways:
If public money has been spent on a travelled road that has not before then been established by notice in the Gazette or otherwise dedicated to pubic use by a plan deposited in the land title office for the district in which the road is located, that travelled road is deemed to be and is declared to be a public highway.
[28] The CFA provides that “‘public highway’ has the same meaning as in the Highways Act” [sic] (s. 30). That definition applies for the purposes of land transactions, including leasing of ferry terminal properties.
[29] The plaintiff has formally conceded that the Causeway, the “travelled road” thereon, and the ferry terminal were constructed by the government with public money. The defendant asserts that, as a result, the road through the Property remains a public highway.
[30] Mr. McNaughton submits that if the Property was a public highway at common law, the CFA unequivocally altered the status of the Property and statutorily designated it as “ferry terminal property”. He relies on the statutory scheme by which the B.C. ferry services were “privatized” or transferred from a Crown corporation to a private company. Part 3, Division 2 of the CFA, deals with “land transactions”. Section 30 provides that the Lieutenant Governor in Council may, by regulation, (a) designate as “ferry terminal property” any property that is owned by the government, including BCTFA or B.C. Ferry Corporation, that relates to the provision of ferry services; (b) designate any ferry terminal property as “highway property”; and (c) designate any highway property as “surplus highway property”. By Order in Council dated March 28, 2003 (and amended by Order in Council dated July 24, 2003), the Property was designated as “ferry terminal lands”. Mr. McNaughton says that the necessary inference, and indeed the only inference, to be drawn from the provisions of Part 3, Division 2 is that if the Property was a common law highway, it is no longer one.
[31] Mr. McNaughton also asserts that the provisions of the CFA prevail over those in the Highway Act. Section 71 of the CFA provides that, “In the event of a conflict between this Act and any other enactment, this Act prevails”. He points out that a savings clause in a general Act has no operation if it is inconsistent with the express provisions of a subsequent special Act: Corporation of Yarmouth v. Simmons (1878), 10 Ch. D. 518.
[32] On the other hand, Mr. Ottho points to s. 73(1) of the CFA, which states:
Nothing in this Act releases or waives a right of action by the commissioner or by a person for a right, penalty or forfeiture that arises under a law of British Columbia.
[33] Mr. Ottho also emphasizes s. 30(6)(a)(ii) of the CFA, which provides that the designation of properties as ferry terminal properties is subject to “the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, contained in the original grant or contained in any other grant or disposition from the Crown….” [emphasis added].
[34] Mr. Ottho points out that the State of Title Certificate registered on April 3, 2003 names the registered owner in fee simple of Lot B as BCTFA and notes two charges: (1) a possibility of reverter; Her Majesty the Queen in right of the province of B.C. is the registered owner of that charge; and (2) the lease with B.C. Ferry Services.
[35] That possibility of reverter is referable to an Order in Council of March 31, 1983 that issued a free Crown grant to the B.C. Ferry Corporation of the lands then comprising the Causeway and the ferry terminal lands “limited to the specific public purposes of use for ferry terminal, causeway, road and related necessary uses, subject to reversion if not so used” [emphasis added]. It is true that the reservation applies only to Block B which comprises only the Causeway and the area through the original ferry terminal to the original single ferry berth. (The Tsawwassen Terminal is now comprised of Blocks B, D and E.) Nevertheless, it is arguable that the reservation indicates an overall governmental intention that ferry property be utilized by the public.
[36] Although Mr. Ottho argues that it would require clear language to extinguish the public nature of the road in question, the plaintiff cites Yarmouth, supra, as authority for the proposition that a public right of way may be extinguished by statute by necessary implication as well as by express words.
[37] Whether or not the entire Property is “ferry terminal property” rather than “highway property” within the meaning of the CFA, the roadway used by the public to access the terminal facilities must retain some of its characteristics of a public highway. For example, it is questionable that the provisions of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, and the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, relating to highways do not apply to drivers of vehicles in that area.
[38] Mr. McNaughton also characterizes the area in front of the Arrivals and Departures Wing of the administration building, where the defendant drops off and picks up passengers, as part of the parking lot rather than a road. That characterization is questionable. There are three designated parking lots, for which parkers pay a fee. No-one parks on the road that enters the terminal area from the Causeway, curves around in front of the administration building and exits out onto the Causeway.
[39] I do not consider it appropriate on this application to conclusively determine the merits of the parties’ extensive submissions with respect to their respective rights. The CFA is a complex piece of legislation that invites considered statutory interpretation.
[40] In my opinion, the inviolable right of a private land owner or lessee to enjoy his or her lands free from trespass by third parties does not characterize the issues in the case at bar. Despite the fact that B.C. Ferries is now a private company, as opposed to a Crown corporation, its primary purpose is to provide a public service, linking the highways of B.C. by ferrying passengers and vehicles across the waters. Maximizing revenues from parking, food sales and the like, is an ancillary purpose. The defendant’s Park and Go service, which is not in competition with the plaintiff’s primary business, provides a service complementary to the public service performed by B.C. Ferries. It provides an “overflow lot” when B.C. Ferries’ lots are full; it provides travellers with a “door to door” service, which is particularly significant for elderly or infirm passengers, for passengers with small children or unwieldy luggage, and for passengers in inclement weather. Of course, its parking services are also cheaper than those provided by B.C. Ferries and that appears to be the nub of the problem and the impetus for this lawsuit. If the defendant has to pay a fee to B.C. Ferries, it will have to raise its parking fees to the public. Certainly, the plaintiff cannot point to any other detriment it has suffered as a result of the Park and Go service. The two buses constitute a small part of the vehicle traffic that discharges or picks up foot passengers: tour buses, charter buses, B.C. Transit, limousines, taxis from various municipalities and private vehicles.
[41] It is settled law that if, on an injunction application, the defendant satisfies the Court that there is an arguable case that it has the right to do that which the plaintiff asserts is a trespass, the Court should consider the balance of convenience, the preservation of the status quo and the adequacy of damages as a remedy: Patel, supra. In this case, I conclude that the defendant has an arguable case.
[42] Moreover, even when a person establishes that his or her proprietary rights are being wrongfully interfered with, the granting of an injunction is still a discretionary matter.
The balance of convenience and irreparable harm
[43] The factors to be considered in assessing the balance of convenience, and the weight of those factors, will vary in each individual case: RJR-MacDonald, supra.
[44] The defendant employs six employees and has entered into a lease for the parking lot and long-term leases for its two shuttle buses. There is no question that if the injunction were granted, the defendant would be forced out of business. On the other hand, if Park and Go continues to operate, the plaintiff does not suggest that the defendant would be unable to satisfy an award of damages. Any claim that the plaintiff may have in damages is quantifiable and limited to the monthly fees that it has demanded. B.C. Ferries cannot show any irreparable harm if the injunction is not granted.
[45] Further, in my opinion, to grant the injunction sought would not be in the public interest. A lack of overflow parking, particularly at peak traffic volumes in the summer months, would be a tremendous inconvenience to passengers.
[46] With respect to the status quo, while Park and Go is not the legal successor to Park and Sail, since 1993, numerous ferry passengers have parked in the “overflow” lot north of the Causeway and been bussed to the ferry terminal. Obviously, the owner of Park and Go, Mr. Mazdine, had a legitimate expectation that he would be able to continue that type of operation and, on the basis of that expectation, entered into the leases in respect of the land for the parking lot and the buses to transport passengers.
[47] Mr. Ottho also points out that the defendant has received substantial public support, as evidenced by a petition and numerous letters to the editor in the newspapers.
Conclusion
[48] In alleging its sacrosanct property rights as a lessee of private property, B.C. Ferries is simply not in the same position as a private homeowner or businessperson, regardless of the fact it is a private company rather than a Crown corporation. The public aspect of both the premises and the defendant’s purpose for entering them is overwhelming. B.C. Ferries’ website indicates that the B.C. Ferry Authority owns B.C. Ferries’ common shares and appoints its Board of Directors and the B.C. Government owns its preferred shares, a debenture and the terminals. Its fares and services are regulated by the B.C. Ferry Commission. B.C. Ferries’ mission statement is “[t]o provide a safe, reliable and efficient ferry service, which consistently exceeds the expectations of our customers and communities and creates value for the shareholder.”
[49] I conclude that it would not be in the public interest to grant an injunction. The injunction sought would likely put the defendant out of business in the height of the tourist season and put its six employees out of work. To remove the excess parking capacity and bus transportation now available to ferry patrons would potentially impose a hardship on many of B.C. Ferries’ own customers.
[50] Considering the relevant factors, I conclude that B.C. Ferries is not entitled to an injunction. In any event, in the circumstances, I would decline to exercise my discretion to order an injunction. From a practical point of view, the heart of the issue is not “trespass” but whether Park and Go should pay a fee for dropping off and picking up passengers on the Property and, if so, how much that fee should be. That matter, if incapable of resolution by further negotiation, can be determined in this action at trial or on a summary application.
[51] The application is dismissed. The defendant is entitled to its costs payable forthwith following taxation.
“M.J.
Allan, J.”
The Honourable Madam Justice M.J. Allan