Date: 19981008 Docket: 98 2814 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF THE TRUSTEE ACT, R.S.B.C. 1996, CHAPTER 464, SECTION 86 BETWEEN: CITY OF VICTORIA PETITIONER AND: CAPITAL REGION FESTIVAL SOCIETY and THE ATTORNEY GENERAL OF BRITISH COLUMBIA RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE R.D. WILSON Guy McDannold For the Petitioner Richard S. Margetts For Beacon Hill Rescue Coalition See schedule attached for other appearances Place and Date of Hearing: Victoria, B.C. 21 and 22 September 1998 I [1] The City of Victoria is a Trustee. The asset of the trust is real property named Beacon Hill Park. The City is charged to maintain and preserve the asset for the use, recreation and enjoyment of the public. [2] The respondent, Capital Region Festival Society is a not for profit organization. The society was created to manage, operate and promote festivals of an artistic and cultural nature. It has proposed annual musical festivals in the park. The first to occur in the summer of 1999. [3] The City has approved the proposal in principle. Pursuant to section 86 of the Trustee Act, however, the City seeks the direction of the Court on whether the asset can be lawfully used for these purposes. [4] In my opinion, the asset cannot lawfully be used for the purposes proposed. II [5] The trust conditions, under which the City holds the asset, are found in Letters Patent issued 20 February 1882. In material part, the trust upon which the asset was conveyed to the City, is in these words: "...UPON TRUST to the express use intent and purpose that the said hereditaments and premises hereby granted shall be maintained and preserved by the said Corporation and their successors for the use recreation and enjoyment of the public under the provisions of the Public Parks Act, 1876 and the said Act to amend the Public Parks Act, 1876..." III [6] In recent history, the asset was under the jurisdiction of the Hudson's Bay Company. In the mid 19th Century, the Company set the asset aside as a public park. Title to the asset reverted to the Crown, in right of the Province of British Columbia, in 1862. The asset retained its identity, as a public park, through to its transfer to the City in 1882. Recitals in the Letters Patent include the following - "...AND WHEREAS the hereditaments and premises hereinafter more particularly described being the public park or pleasure ground known as Beacon Hill have been set apart and reserved out of the Crown lands of the Province for the recreation and enjoyment of the public." [7] The material discloses that the property is currently in its essentially natural state, augmented by various plantings and other adornments by human hand over the years. [8] Current activities in the park include the following. There are sports fields utilized for soccer and softball. The Victoria Lawn Bowling Club operates out of premises in the park, as does the Victoria and District Cricket Association. These latter two activities are governed by formal agreements between the City and the Clubs involved. [9] There is a petting zoo, also the subject of a formal agreement between the City and the zoo operator. There is no charge to enter the zoo, but donations are accepted. [10] Musical events are held at the park in a facility known as the "Cameron Bandshell". There are tennis courts. Miscellaneous events include walks and runs, orienteering, car shows, picnics and filming, easter egg hunts, Chinese exercises and weddings. IV [11] One of the objectives in the City of Victoria Official Community Plan was - "...to develop the potential for growth in Arts activity for both the local and tourist audiences by establishing Victoria as "Festival City"". [12] A chief goal of the 1997 Strategic Plan for the City of Victoria is to: "...increase support for Arts and Culture through partnerships". [13] That goal, it was suggested, could be achieved by expanding "the inventory of Arts and Cultural events"; and by utilizing City facilities - "to support established festivals and celebrations and promote the development of new events". [14] The proposal by the Festival Society is a response to that objective and that goal. V [15] The Festival Society describes the material facts of the proposed festival, in part, in the following words. "...In these days of M.T.V., digital discs, the internet and the 500 channel universe, folk musical festivals remain dedicated to live music played by people unknown to much of the mass market. It has become a tradition in Canadian folk festivals to celebrate the musical heritage of the past, while continually seeking to expand our musical horizons. That's why folk festivals feature music from places most people will never visit, traditions that are known and loved, songs about working people and young voices taking music in new directions. . . . The festival will always be held on the first long weekend in August. ...The 1999 festival will be held from July 30 - August 1... [the times are] Friday night 5:00 p.m. to 11:00 p.m.; Saturday 10:00 a.m. to 11:00 p.m. and Sunday 10:00 a.m. to 6:00 p.m. . . . The overall site is Beacon Hill Park, encompassing the cricket and cow fields, the former Rose Garden, Camus Road and the area adjacent to the petting zoo. The site includes four daytime stages, one of which is a dedicated children's stage, all seating between 1 - 2,000 people, and set relatively far apart to minimize sound bleed. A large hospitality area including the Cricket house will feed meals to several hundred artists and sponsors. A beer garden will seat 400 patrons. A family area with playground will be installed with numerous arts, crafts, roving performers and other activities.... A covered seating area to the west of the main stage is reserved for people with disabilities and the elderly. A concession area for 10 - 12 external concessionaires will sell a selection of superb foods; 30 independent vendors will sell C.D.'s, original crafts, clothing and jewellery. . . . A crew of volunteers will begin building the site on Sunday afternoon of festival week. The site will be dismantled and cleaned by the Wednesday following the close of the festival. Tents, port-a-potties, fences, refrigeration equipment, concessions, beer garden, sound equipment and all stages will be set up during the five days prior to the event. . . . The Victoria Folk Roots Musical Festival will have four stages plus a main stage which will be situated in the cricket and cow fields opposite the parks maintenance yard. The main stage will be 40' by 32' flat flown roof. Two of the side stages will be Warner S-30 arabesques and the remaining two stages will be framed marquee tents. Each tent will be equipped with excellent sound systems operating with digital delay and proper equalization. There will be minimal noise bleed into the neighbourhood as most of the sound will be directed toward the sea. Additionally, there will be a plethora of other frame tents to house the lost and found, instrument lock up, media, craft fair, food kiosks, medical support, plate recycling box, box office, general store, sitting and dining areas. Picnic tables will be supplied by sponsors but most of the seating is brought into the site by the festival participants in the form of blankets, tarps and low profile beach chairs. This first Victoria Folk Roots Festival is projected to cost about $650,000 inclusive of an artistic budget of $350,000.00. This means that both daily and weekend admissions will be charged and the entire site will be fenced using modular 6 foot lengths augmented by Snow Fencing. 1999 tickets will start at $75.00 for an early bird weekend pass, $30-$35.00 for daily passes at the gate. Children 13 and under are admitted free; seniors and people with disabilities are admitted for half price. . . . With the exception of a one time grant, less than 10% of federal, provincial and municipal grants contribute to expenses. Corporate sponsorships are needed for 30% of the budget requirements. The society relies on ticket sales and revenue generated from audience members to make up the balance. Revenue generated from the audience includes raffle sales, beer garden revenues, concessionaire and craft vendor fees and merchandise sales. . . . For sponsors wishing to advertise and promote their products or services, ... conditions are ideal. ....Box office calculations, conservatively extrapolated at 50% of capacity, show that 2,750 weekend passes will be purchased for the Victoria Folk Roots Musical Festival. Multiplied over the three day event, these ticket holders represent nearly 9,000 visits. Single daily purchasers are estimated at 3,250 for a total visit figure of 11,500. Add another 1,000 volunteers, performers and sponsors who would visit the site three times. A successful turnout would double this sum to 25,000 visits. This is a delivered audience right to the sponsors door. Considering that the average festival goer would attend five shows a day and each venue showcases sponsorship advertising, this presents an extremely attractive exposure opportunity for advertising sponsors goods and services. Every show will be a minimum of an hour in length creating a large exposure window. Because each venue is sponsored by only one sponsor there is no event clutter and each stage is special to its single advertiser. Each sponsor owns its own event. . . . Enticements: Signature Sponsor - $100,000.00 ....event ownership by name; four entrance scaffolded banner towers with sponsor name and logo that provide a gateway for all ticket holders to pass through; name and logo on all (20,000 projected) wristbands that are attached to every person entering the site; product installation area in highly travelled intersection on site; logos on all 1,000 t-shirts worn by volunteers and staff; promos on web site; recognition as sponsor in 15,000 program books: full back cover on program book, logo on front cover; sponsor "presence" on all posters, print advertising, T.V., and (500) radio tags; Board membership...;VIP...seating; VIP guides.... Festival Sponsor - $50,000.00 ...live endorsement of sponsor during programs at venues; full page ad in 15,000 program books; entrance signage and logos on sound towers/scrims at specific venues logo on all major advertising, print, radio and t.v.; product sampling on-site at specific venue; VIP...seating; Access to...performers "green room"; reception dinner; VIP invitation to...party; complimentary tickets... Special Event Sponsors Signage on tripods at entrance to the park; banners and/or signage on tent sides during performance; product installation area inside park; program acknowledgment and tags on advertisements for specific programming; Access to green room...; VIP seating...complimentary tickets... . . . The nature of the event is that the participants, paying audience, volunteers, performers, concessionaires and booth vendors, are held captive for a minimum of one day to a maximum of three days in an enclosed, controlled environment". VI [16] The questions upon which the trustee applies for directions, are: "(a) Whether or not the land known as Beacon Hill Park, held in trust by the City of Victoria, can lawfully be used for short term festival type events including the Victoria Folk Roots Music Festival, proposed by the Capital Region Festival Society; and (b) Whether or not the land known as Beacon Hill Park, held in trust by the City of Victoria, can be lawfully used for other similar short term festival type events that may be offered to be held by non- profit societies". [17] The proponents contend that the proposed festivals are an appropriate, end of the 20th Century, utilization of the trust asset. The opponents say that it is a marked departure from the terms of the trust. [18] Both sides referred to the opinion of Chief Justice Begbie in Anderson v. Corporation of the City of Victoria. The issue before the Chief Justice in that case arose on an application, by Mr. Anderson, for an interlocutory injunction. It was said that: "....a certain association called the Agricultural Association is threatening to build, and indeed has already commenced the foundations, of a permanent brick building, to be called the Agricultural Hall, for the exhibition of all sorts of articles of agricultural interest, with which is to be connected an extensive series of cattle lairs, and a house for the reception of immigrants (though this latter part of the scheme is alleged to be at present abandoned) upon a part, viz., 20 acres, of Beacon Hill Park. These 20 acres are proposed to be bestowed upon the Association by the defendants, the Corporation of Victoria, to whom the park has been conveyed in fee for the purposes of a park or pleasure ground". [19] The Chief Justice considered the governing principles, on the exercise of the judicial discretion, for the grant or withholding of an interlocutory injunction; applied them, and issued the injunction. He found that it was "pretty clear" that the City had no power to "convey away one inch of the park," except upon and subject to the trust. [20] The interlocutory injunction was granted until the hearing of the matter. Prima facie, the decision is authority on the procedural point. During the course of the hearing, however, the Chief Justice was asked - "what purposes or what buildings the Corporation may lawfully encourage or erect." His Lordship did respond to the question with what was admittedly obiter dicta. [21] It is to be noted that neither the City of Victoria, nor the Agricultural Association, defended the interlocutory application on its merits. Opposition was confined to a procedural point on standing. Although the order was for an interlocutory injunction, pending the hearing, the parties had the option to agree that the application be taken as the hearing. In the event of electing such option then the order would be for a permanent injunction. Given those factors, and what I consider to be the inevitability of the outcome, I was not surprised to find no further reference to the Anderson litigation in subsequent law reports. [22] It is also noteworthy that his Lordship delivered himself of the dicta some two and a half years after the asset had been transferred to the City. For those reasons I find the dicta persuasive, and determinative of the questions asked. VII [23] The opponents argue that the City has only such ability to utilize the park as may be found in the terms of the trust. I think that is right. [24] The duty imposed on the trustee is to maintain and preserve the asset. There is a correlative right in the beneficiary to a maintained and preserved asset. [25] There is a further duty on the trustee to permit "use" of the asset: in this case, to go upon the asset. There is a correlative right in the beneficiary to go upon the asset. [26] There is no independent duty on the trustee, nor a correlative right in the beneficiary, in connection with the notions of enjoyment and recreation. To put it another way, there is no duty on the trustee to provide recreation or enjoyment. Any rights or privileges attaching to the beneficiary, in connection with the notions of enjoyment and recreation, must be informed by the duty to maintain and preserve. [27] The governing principle on that inquiry is "necessary incidence". Implementation of that principle is exemplified in Attorney General v. Corporation of Sunderland and Imperial Elevator and Lumber Company Limited v. Village of Ponteix. A.G. v. Sunderland was referred to with approval in Anderson. [28] In Sunderland the municipality was granted a piece of land, under a covenant that the land - "shall be used only as and for public walks or pleasure grounds." Building on the land was proscribed, except for - "walls or seats, or summer houses, or any building or buildings for a museum, or other public purpose of a like nature, or for the abode of the parties attendant upon and connected with such walks, pleasure grounds, and buildings..." The municipal council resolved to construct buildings to house a museum, library and public offices. At the suit of a ratepayer, an injunction issued restraining the council from erecting - "any town buildings, or for any erection or building which should not be needful for or incidental to the maintenance or use of the park as public walks or pleasure grounds, the injunction not to extend to a free public library, museum or conservatory...." [29] In Imperial Elevator, the plaintiffs supplied material to the Village, for construction of a fence, grandstand and ticket offices. The Village did not pay for the materials. It answered the plaintiff's claim for payment with a plea that the ordering of the material was beyond the Village's statutory powers. The court rejected that defence and held that the improvements, for which the materials were supplied, were necessary incidents to the establishment and operation of a park. [30] In my opinion, the first step in applying this principle is to define the asset. The greater the precision in defining the asset, the greater the precision in defining the duty of the trustee and the right of the beneficiary. [31] The asset here is not a "public walk or pleasure ground", as in Sunderland. It is not an amusement park, as seems to be the characterization applied in Municipal District of Springbank v. City of Calgary. It is not the abstract notion of "park" referred to in City of Winnipeg v. Rural Municipality of St. Vital. It is not "mere ornamental pleasure grounds". It is not a "wilderness" or category 1 or 2 park, as defined in section 12 of the Park Act. [32] The most apt descriptive adjective which comes to my mind, in this case, is the word "nature". That was the emphasis urged by the opponents. It is also consistent with the park objectives defined by the City. From the festival society's perspective, important characteristics are - "...natural shade, grass and spectacular beauty...". [33] I define the park therefore, as a nature park and ornamental pleasure ground, with playing fields. The enjoyment and recreation contemplated by the trust terms is the enjoyment and recreation of the trust asset in its physical state as a nature park and ornamental pleasure ground, with playing fields. To achieve the trust objects, the trustee is under a duty to maintain and preserve that "physical state as such". [34] The introduction of tents, food kiosks, sound systems operating with digital delay and proper equalization, and commercial advertising are not necessary, incidental, or necessarily incidental to that objective. [35] There is a companion principle to necessary incidence discussed in the authorities referred to above, namely, the "consistency" of a utilization of a property, with the character of the property. The festivals described fail to meet that principle. In my opinion the notion of being - "held captive...in an enclosed controlled environment", surrounded by commercial advertising is consistent with an amusement park, or a major league ball park; it is not consistent with a park whose cardinal features include "natural shade, grass and spectacular beauty". VIII [36] I understood the proponents to concede that the introduction of concessionaires, as part of the overall festival plan, was in conflict with the dictum of Chief Justice Begbie, that the asset was not to be used for general purposes of profit or utility. That seeming impediment to the position is dismissed as "not essential to the primary focus of the....festival....[but] aimed at enlivening the ambience of the site". [37] That position has a suggestion of a de minimus argument. If that is what it be, I think Anderson is a complete answer. What the Chief Justice said was - "All establishments addressing themselves to profit or utility are, I think, excluded by the terms of the trust....". I think the proponent's position is an unwarranted restriction on the generality of that statement of principle. When his Lordship said "All", I think he meant all pecuniary profit. [38] The proponents also say that the event is of short duration, and will occupy only a portion of the asset. In my opinion, those factors are not material. I think the trustee must be ever alert to the perverse propensity, in human affairs, for short term measures, for example, the Income War Tax Act, becoming the norm. [39] On the issue of the integrity of title, the alienation of the title was as to part only, of a 120 acre park. The Chief Justice said that not one inch of the park could be alienated by the trustee. I am aware of no authority rejecting the de minimus principle that far. [40] In Anderson, the court was dealing with the size of the asset and the integrity of its title. I am dealing with the character of the asset. I think the character of the asset is no less worthy of protection than its size and the integrity of its title. Alteration of the character of the asset is a mischief equivalent to although different from alteration of size. Both are liable to being enjoined. [41] It is also argued by the proponents that the Festival Society is a non-profit organization. I am not persuaded that the fact that the society will not enjoy an excess of revenue over expenses is a determinative factor. [42] In addition to the admitted profit to be realized by the concessionaires, there is also the sale of advertising by the society to sponsors. It seems to me that the sponsors would anticipate profit from their advertising. Why else would they buy it? I think the proponent's position is, again, an unwarranted restriction on His Lordship's statement proscribing all profit. IX [43] The opponents complain that fencing the festival site will deny access to the public. That is to say, for example, it will deny access to those members of the public without the money to pay the necessary fee, to get inside the fence. The proponents respond that this consideration is not material. All members of the public are invited to the festivals. That is the test. It is not the extent to which the public takes advantage of the invitation. As a general proposition of law, I think the proponents are right. It would be lawful for the trustee to fence the entire asset, charge a fee for admission, and not be in violation of its trust duty to permit entry. That conclusion is not dispositive of this application. X [44] Finally, I am urged to note that "...contemporary standards of what may constitute appropriate public recreation and enjoyment of the public will not necessarily be the same as those held in the 1880's". I have serious reservations about the applicability of that notion with respect to this park. Because, as the late Will Rogers observed, in a different context, they aren't making these any more. Further, I understand the jurisprudential major premise of Anderson to be conservation, not innovation. [45] If there be public outcry for relief from the suffocating fetters of a past generation, then, the solution, in my judgment, is not the expedient manipulation of referents to accommodate a contemporary agenda. With its attendant risk of converting the enduring into the episodic. But rather, to move for a termination of the trust, and conveyance of legal and beneficial title to the City. The property then may be administered free of the encumbrances imposed by the aspirations for us of a generation long since dead, and the interests of generations yet to be born. XI [46] In result, I answer both questions in the negative. XII [47] I was told by Mr. Kelley that this matter was of some controversy. In that event, I think the court's involvement at some point was probable. I think the method of placing this matter before the court was prudent, and that it would be fitting therefore that there be no costs at this level. XIII [48] I request that Mr. Margetts take carriage of the order. Pursuant to Rule 41(8) the minute of the order will be approved by Mr. McDannold, but I dispense with approval of that minute by all others appearing at the hearing. "Mr. Justice R.D. Wilson" The Honourable Mr. Justice R.D. Wilson Docket No.: 98 2814 Victoria Registry IN THE SUPREME COURT OF BRITISH COLUMBIA In the matter of the Trustee Act, R.S.B.C. 1986, Chapter 464 SCHEDULE TO REASONS FOR JUDGMENT [1] Although the Attorney General is named as a party respondent in this proceeding, advice was received by the petitioner, on 5 August 1998, that the Attorney General would not be intervening or taking a position in this matter. [2] On 20 August 1998 the Court gave directions on the notices to be given, pursuant to Section 86(2) of the Act. [3] The following persons appeared to make submissions at the hearing: Jamie Kelley for Capital Region Festival Society Valdi Dr. Brayshaw Anne Fletcher 11B - 2820 Harriet Road Victoria, B.C. V9A 1T1 Helen J. Oldershaw 1 - 366 St. Charles Street Victoria, B.C. V8S 3N3 Ronald C. Robbins 408 - 540 Dallas Road Victoria, B.C. V8V 4X9 Page 2 David Billingham Victoria and District Cricket Association 402 - 1208 Wharf Street Victoria, B.C. V8W 3B9 Hennie Stibbe 1047 Richardson Street Victoria, B.C. V8V 3C6 Mary E. Doody Jones 435 Kipling Street Victoria, B.C. V8S 3J9 Betty Gibbens 933 Convent Place Victoria, B.C. V8V 2Y9 [4] Additionally, the following persons filed written submissions: Rick Gonder 206 - 1100 Union Road Victoria, B.C. V8P 2J3 W.E. Smith 1A - 200 Douglas Street Victoria, B.C. V8V 2P2 Anne E. Curtis 204 - 240 Douglas Street Victoria, B.C. V8V 2P3 Nellie Simpson 203 - 200 Douglas Street Victoria, B.C. V8V 2P2 Hennie Stibbe 1047 Richardson Street Victoria, B.C. V8V 3C6 Page 3 Jan H. Aten, President Victoria & District Cricket Association 1206 Clovelly Terrace Victoria, B.C. V8P 1V6 Audrey Woodward 40 Government Street Victoria, B.C. V8V 2K3 Gerald E. Stinson 1851 Hollywood Crescent Victoria, B.C. V8S 1J2 Tacha Hyde 206 Niagara Street Victoria, B.C. V8V 1G2 Grant Keddie 666 Belton Avenue Victoria, B.C. V9A 2Z6 Jerrine Lee 21 - 405 Quebec Street Victoria, B.C. V8V 4Z2 M. Kruberg P.O. Box 8527 Victoria, B.C. V8W 3S1 Vanora Miller 315 - 566 Simcoe Street Victoria, B.C. V8V 1L9 Hazel D. Bailey, S.R.N., S.C.N. 315 - 566 Simcoe Street Victoria, B.C. V8V 1L9 Dorothy Decker 380 - 188 Douglas Street Victoria, B.C. V8V 2P1 Page 4 Frances Wierich n/a Jane Renaud 1002 - 360 Douglas Street Victoria, B.C. V8V 2P6 David Allinson, Past President Victoria Natural History Society 3472 Sunheights Drive Victoria, B.C. V9C 3P7 Derrick Mallard, President Citizens Association to Save the Environment 6093 Brecon Drive Sooke, B.C. V0S 1N0 Susan L. Willey 340 Berwick Street Victoria, B.C. V8V 1C7 Mary Bratt n/a Margrit Murray 203 - 1065 Burdett Avenue Victoria, B.C. V8V 3G9 Gordon Friesen 1240 May Street Victoria, B.C. V8V 2S9 Helen T. Oldershaw, Chairperson Friends of Beacon Hill Park 366 St. Charles Street Victoria, B.C. V8S 3N3 Nancy J. Turner, Ph.D. Botanist, School of Environmental Studies University of Victoria Victoria, B.C. V8W 2Y2 Page 5 George D. Hawkes 216 Royal Quays East Paul Kane Place Victoria, B.C. V9A 7J8 M. Cooke 205 - 360 Douglas Street Victoria, B.C. V8V 2P6 M. Harvey 205 - 360 Douglas Street Victoria, B.C. V8V 2P6 Margaret and Robert Torrance 420 - 188 Douglas Street Victoria, B.C. V8V 2P1 Anne Marshall 323 - 964 Heywood Avenue Victoria, B.C. V8V 2Y5 Vivian and Walt Evans 607 - 250 Douglas Street Victoria, B.C. V8V 2P4 Peter Donnelly President, Right to Quiet Society 4256 Moorpark Place Victoria, B.C. V8Z 6P2 Peter Dixon Chair, Sierra Club Victoria Group 2208 Edgelow Street Victoria, B.C. V8N 1R5 T. Christopher Brayshaw, Ph.D. Curator emeritus, Royal British Columbia Museum n/a F. Brian Holl, Ph.D., P.Ag. Department of Plant Science University of British Columbia n/a Page 6 Carrina Maslovat Chair, Native Plant Study Group 2615 Asquith Street Victoria, B.C. V8R 3Y4 H. Amabilino 807 - 360 Douglas Street Victoria, B.C. V8V 2P6 Joyce Harrison 357 Irving Road Victoria, B.C. V8S 4A3 Ronald C. Robbins 408 - 540 Dallas Road Victoria, B.C. V8V 4X9 Anke Venema 1403 - 360 Douglas Street Victoria, B.C. V8V 2P6 Nanci Murdock 404 - 230 Oswego Street Victoria, B.C. V8V 2B3 Mary E. Doody Jones 435 Kipling Street Victoria, B.C. V8S 3J9 Rustom and Mechliena Patel 1002 - 350 Douglas Street Victoria, B.C. V8V 2P5 Christine Hunt Seawright 1 - 2 Hornby Island, B.C. V0R 1Z0 Page 7 Sharron Waite Secretary, Garry Oak Meadow Preservation Society A - 954 Queens Avenue Victoria, B.C. V8T 1M6 Wendy L. Wall 7 - 1111 Chapman Street Victoria, B.C. V8V 2T5